FULLERTON (CNS) - With state prosecutors facing a Thursday deadline to file a new version of a case against a Newport Beach hand surgeon and his girlfriend accused of drugging a woman, experts say they still have an option to dismiss the gutted case and start all over.
Orange County Superior Court Judge Michael Leversen on Aug. 28 granted a motion that dismissed some of the charges against Dr. Grant Robicheaux, 43, and Cerissa Riley, 36, but he gave them 10 days to file an amended complaint. Prosecutors said after the last hearing they intended to do so.
During the Aug. 28 hearing, Leversen granted a demurrer motion that dismisses felony counts of poisoning and sale of phencyclidine against Robicheaux and Riley, and a felony count of sale or transport of cocaine against Riley.
Robicheaux still faces four misdemeanor charges of possession of a controlled substance -- psilocybin, ecstasy, cocaine and GHB -- as well as two felony counts of possession of an assault weapon. With Leversen granting the demurrer, Riley no longer faces any charges. A demurrer is a legal move to dismiss charges based on a failure to show a cause of action.
On July 7, Leversen gutted much of the case after a preliminary hearing, dismissing charges that the pair had drugged and assaulted two women.
Eight former and current prosecutors speaking on background told City News Service that the state Attorney General's Office, which is prosecuting the case, can dismiss the current case and refile, starting the process all over again.
Chapman University law professor Lawrence Rosenthal agreed.
"If they refile it is a new case," Rosenthal said. "But the statute of limitations can still apply if the statute is running, and then a new charge would be blocked."
Unless the case was dismissed twice then prosecutors can refile, Rosenthal said.
"They could absolutely do that," said attorney Matthew Murphy, who represents some of the accusers and is a retired prosecutor. "Whether they will do that is another question."
The Attorney General's media office said, "As this is an ongoing case, we are unable to comment on potential legal strategy."
Murphy attempted to have a special prosecutor assigned to the case previously, but it was denied by another judge, who has since died, prompting a reassignment to another judge, who declared a conflict. Leversen was the next judge who presided over the case.
A dismissal and refiling of charges would allow prosecutors a chance to also seek a grand jury indictment, the attorneys said. That would allow prosecutors to sidestep another preliminary hearing. It would be up to the presiding judge in Orange County to decide whether the case would be reassigned to a new judge.
Robicheaux's attorney, Philip Cohen, argued at the Aug. 28 hearing that the statute of limitations precludes prosecutors from pursuing remaining charges.
"The statute has run and (the new case) can't be attached to something that no longer" exists, Cohen argued.
Deputy Attorney General James Toohey argued, however, that prosecutors met the three-year deadline for filing the case. The dispute is about when the clock began ticking on prosecuting the filed case, which dates back to 2018.
In issuing his decision, Leversen said, "The real question I have in front of me is counts one through three and whether they're sufficiently alleged, and they're not. The demurrer is sustained. But I'll give you leave to amend and that has to be done in 10 days."
Deputy Attorney General Namita Patel told Leversen, "Yes, your honor, we intend to file an amended information."
The attorneys will return to court Sept. 25 to consider another expected demurrer from defense attorneys.
The embattled case sparked headlines when it was filed, with then- Orange County District Attorney Tony Rackauckas touting allegations that the reality television personality Robicehaux and his girlfriend lured women they met at Newport Beach bars, drugged their drinks and sexually assaulted the victims.
It turned into a political football when now-Orange County District Attorney Todd Spitzer was running to unseat Rackauckas, and Spitzer criticized his predecessor's handling of the case.
Spitzer as a candidate questioned why Rackauckas waited as long as he did to file charges. After ordering a review of the case when he was elected the county's top prosecutor, Spitzer moved to drop the case. But when one of the alleged victims objected in court, that move was denied and Spitzer's office was eventually thrown off the case.
After the Attorney General's Office took over, the case was pared down. What began as a case that included a total of 13 accusers was eventually boiled down to two victims.
The defense attorneys failed in earlier attempts to have the case dismissed based on arguments of outrageous governmental conduct and defects in an original search warrant.
Patel indicated in court Monday that prosecutors are discussing a possible settlement with defense attorneys.