Filed 2/24/15 Certified for Publication 3/23/15 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

EFRAIN VELASCO-PALACIOS,

Defendant and Respondent.

F068833

(Super. Ct. No. TF006398A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. H. A. Staley, 

Judge.*

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, R. Todd Marshall and Larenda R. Delaini, Deputy Attorneys General, for 

Plaintiff and Appellant.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and 

Respondent.

-ooOoo-

 

*Retired Judge of the Kern Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
2.

INTRODUCTION

Defendant Efrain Velasco-Palacios was charged with lewd and lascivious conduct 

with a child under the age of 14 (Pen. Code, § 288, subd. (a)). Prior to trial, the lower 

court found the prosecution inserted a false confession into a transcript of defendant’s 

police interrogation and granted defendant’s motion to dismiss on the basis of outrageous 

government misconduct.

On appeal, the People assert the trial court erred by dismissing the case against 

defendant, as defendant was not prejudiced by the prosecutor’s misconduct. We find 

defendant’s constitutional right to counsel was prejudiced by the prosecutor’s misconduct 

and affirm the lower court’s order of dismissal.

FACTS AND PROCEDURAL HISTORY

On July 9, 2013, defendant was charged with five counts of lewd and lascivious 

conduct with a child after the daughter of defendant’s girlfriend reported several 

instances of molestation. Deputy public defender Ernest Hinman was assigned to 

defendant’s case. During pretrial settlement talks, Hinman was informed by the 

prosecuting attorney, Robert Murray, that the People would be willing to accept a 

settlement offer for a prison term of eight years. Defendant was unwilling to make such 

an offer, but Hinman continued to attempt to persuade defendant to make a counteroffer 

and informed Murray that he believed the case would settle.

While Hinman was making these efforts, Murray told Hinman he was considering 

dismissing the charges against defendant and refiling the charges to allege penetrative 

acts, which carried a possible life sentence. Murray also informed Hinman that, if the 

charges were refiled, Murray would be unlikely to accept any plea offers from defendant. 

After reviewing the evidence, however, Murray was unable to find any evidence of 

penetration. On October 21, 2013, Murray concluded he could not find evidence to 

support the greater charges. That same day, Murray provided Hinman with an English 

language translation of defendant’s police interrogation, which had been conducted in 
3.

Spanish. The translation, however, contained two additional lines, added and fabricated 

by Murray, which read as follows:

“[DETECTIVE]: You’re so guilty you child molester.

“[DEFENDANT]: I know. I’m just glad she’s not pregnant like her 

mother.”

Upon receiving the transcript, Hinman informed defendant it included an 

admission of penetration that could be used to file more serious charges against 

defendant. Defendant denied making the incriminating statements, and Hinman 

continued to advise him to make an offer to settle the case.

In the days following his conversation with defendant, Hinman sought to uncover 

why the incriminating lines were not present in the translation that had been prepared by 

his office. According to Hinman, the audio recording of the interrogation he received 

ended abruptly, and he was concerned the People’s transcript had been prepared from a 

different, longer audio recording. Hinman was also concerned about raising the issue to 

Murray directly, as he did not wish to alert Murray to any incriminating statements 

Murray may have missed. On October 28, 2013, seven days after Murray provided the 

falsified transcript, the parties were in court for what was scheduled to be the first day of 

defendant’s trial. Despite this appearance, Murray did not reveal the fabrication to 

Hinman. The trial was subsequently delayed until November 4, 2013.

On October 30, 2013, nine days after receiving the falsified transcript, Hinman 

e-mailed Murray to request “the exact CD reviewed by [the People’s] 

transcriber/interpreter,” but Murray did not respond to Hinman’s request. Later that day, 

Hinman spoke to Murray in person about the e-mail, and Murray admitted to falsifying 

the transcript.

On November 15, 2013, Hinman filed a motion to dismiss, alleging outrageous 

and prejudicial prosecutorial misconduct by Murray. The People filed a response to 

defendant’s motion and asserted the lines were added “in jest,” and defendant had not 
4.

been prejudiced by the fabrication. The response also contained an affidavit from Murray 

stating Hinman had admitted to him defendant did not have a viable defense. Following 

the People’s response, the Kern County Public Defender’s Office removed Hinman from 

the case, citing the appearance of impropriety created by Murray’s allegation that 

Hinman stated defendant did not have a valid defense, as well as the complexity that 

would arise from having Hinman work on the case after testifying about privileged 

matters in the upcoming evidentiary hearing.

That evidentiary hearing was held on December 17, 2013. At the hearing, Murray 

testified the lines were added as a joke, but admitted he did not have a joking relationship 

with Hinman and had not made such jokes in the past. Murray also testified he was 

aware Hinman was trying to settle the case, and he had meant to inform him of the 

fabrication but had not done so until October 30, 2013, despite receiving Hinman’s 

e-mail about the transcript earlier that day and having seen Hinman in court on 

October 28, 2013. Murray also testified the October 28 appearance was the day 

defendant’s trial was set to begin, but he had no expectation the trial was going to 

actually begin that day.

Defendant also testified at the hearing and stated he had had a good relationship 

with Hinman and had been comfortable going to trial with him as his attorney, but after 

Hinman approached him with the falsified evidence, defendant “[did not] even trust in 

[his] attorney anymore.”

After the conclusion of the evidentiary hearing, the trial court issued a written 

opinion dismissing the charges against defendant. In support of its order, the trial court 

found Murray’s dissemination of the fabricated transcript was made during discovery 

proceedings and was “in play” during settlement negotiations. The trial court also found 

Murray had failed to prove the fabrication was a joke, but even if it had been done in jest, 

Murray’s dissemination of the fraudulent confession during plea negotiations was 

“egregious, outrageous, and ... shocked the conscience.”
5.

The trial court also found the misconduct “diluted the protections coming with the 

right to counsel” and ran the risk of fraudulently inducing defendant to enter a plea and 

forfeit his right to a jury trial. The court concluded by stating the following:

“The court acknowledges that each case must be considered on its own 

merits and that there is no bright line test or set of factors the court must use 

in deciding an issue of this type. The court has considered factors that 

include: (1) The very serious nature of the crimes charged, the evidence of 

those crimes and the sensitive nature of the victims alleged in a case of this 

type, (2) the experience of the prosecutor, (3) the burdens that exist for this 

case to ever end in a settlement that can be seen as clear from the taint of 

improper conduct, (3) [sic: 4] and if the case [does] not settle, but goes to 

trial, the burdens that exist for it to end in that manner, clear from the taint 

of the improper conduct of the prosecution. [¶] The court does not believe 

that it can tolerate such outrageous conduct that results in the deprivation of 

basic fundamental constitutional rights that are designed to provide basic 

fairness.”

The charges were dismissed, and this appeal followed.

DISCUSSION

On appeal, the People argue the trial court erred by granting defendant’s motion to 

dismiss. We disagree. A defendant’s right to counsel is guaranteed by both the state and 

federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In United 

States v. Morrison (1981) 449 U.S. 361, 365, the United States Supreme Court held the 

dismissal of criminal charges is an appropriate sanction when government misconduct 

results in “demonstrable prejudice, or substantial threat thereof” to a defendant’s right to 

counsel. Similarly, California case law supports dismissal as a remedy for sufficiently 

outrageous government misconduct. (See Morrow v. Superior Court (1994) 30 

Cal.App.4th 1252; Boulas v. Superior Court (1986) 188 Cal.App.3d 422; People v. 

Moore (1976) 57 Cal.App.3d 437.) “Where it appears that the state has engaged in 

misconduct, the burden falls upon the People to prove, by a preponderance of the 

evidence, that sanctions are not warranted because the defendant was not prejudiced by 

the misconduct. [Citations.]” (People v. Zapien (1993) 4 Cal.4th 929, 967.)
6.

I. Standard of Review

On appeal, the parties dispute the relevant standard of review for cases involving 

the dismissal of criminal charges as a sanction for outrageous government misconduct. 

According to the People, a trial court’s factual findings should be given deference, while 

its order of dismissal should be subject to independent review. Defendant, however, 

asserts an order of dismissal is reviewed only for an abuse of discretion.

In the past, this court has found “the sanction of dismissal is clearly discretionary.” 

(People v. Truer (1985) 168 Cal.App.3d 437, 443; see People v. Hayes (1988) 200 

Cal.App.3d 400, 412.) An abuse of discretion occurs when the lower court acts “in an 

arbitrary, capricious or patently absurd manner resulting in a manifest miscarriage of 

justice.” (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) The Second Appellate 

District has also found cases of this nature are reviewed for an abuse of discretion. 

(Boulas v. Superior Court, supra, 188 Cal.App.3d at p. 435; People v. Shrier (2010) 190 

Cal.App.4th 400, 418.)

The Sixth Appellate District, however, has held the trial court’s factual findings 

are reviewed for substantial evidence, while the sanction of dismissal should be reviewed 

independently. (People v. Uribe (2011) 199 Cal.App.4th 836, 855-858.) In doing so, the 

Sixth District “recognize[d] that there is some support for ... an abuse of discretion 

standard.” (Id. at p. 858.)

Despite this deviation by the Sixth Appellate District, we see no need to depart 

from our previous holdings finding the sanction of dismissal to be within the sound 

discretion of a trial court. That does not mean, however, that we give unfettered 

deference to a trial court’s decision to dismiss criminal charges for government 

misconduct. “The abuse of discretion standard is ‘deferential,’ but it ‘is not empty.’ 

[Citation.]” (People v. Giordano (2007) 42 Cal.4th 644, 663.) Accordingly, while we 

defer to the sound exercise of discretion by a trial court, an exercise of discretion is only 
7.

sound if it is reasonable under the applicable law and relevant facts. (People v. Williams

(1998) 17 Cal.4th 148, 162.)

Employing a deferential standard of review to a dismissal for government 

misconduct is not only in accord with our own precedent, however, but also with the 

standard of review employed in the analogous case of a dismissal pursuant to Penal Code 

section 1385. Under that section, a trial court may, on its own motion, dismiss criminal 

charges “in furtherance of justice,” and our Supreme Court has held those dismissals are 

reviewed for an abuse of discretion. (People v. Williams, supra, 17 Cal.4th at pp. 158-

159.) Likewise, we apply an abuse of discretion standard of review to dismissals for 

outrageous government misconduct.

II. The Prosecutor’s Misconduct was Outrageous and Conscience Shocking in a 

Constitutional Sense

As noted above, dismissal is an appropriate sanction for government misconduct 

that is egregious enough to prejudice a defendant’s constitutional rights. (United States v. 

Morrison, supra, 449 U.S. at p. 365.) On appeal, however, the People dispute that 

Murray’s misconduct was outrageous or conscience shocking in a constitutional sense, as 

it was not physically brutal. The People base this assertion on the Sixth Appellate 

District’s opinion in People v. Uribe, supra, 199 Cal.App.4th 836 in which the court 

stated the following:

“In the absence of a fundamental liberty interest having been abridged by 

the prosecutorial misconduct here ..., defendant’s substantive due process 

claim fails. [The prosecutor’s] misconduct was certainly conscienceshocking in the sense that it involved false testimony by a prosecutor in a 

formal criminal proceeding. [Citation.] But it did not involve ‘brutal and 

... offensive’ conduct employed to obtain a conviction. [Citation.]” (Id. at 

p. 865.)

According to the People, this language stands for the proposition that misconduct must be 

“brutal” in order to shock the conscience and support a sanction of dismissal. The quoted 

passage, however, is taken from a portion of the holding in Uribe that deals with 

violations of a defendant’s right to substantive due process and not violations of a 
8.

defendant’s right to counsel. (People v. Uribe, supra, 199 Cal.App.4th at pp. 861-865.) 

As such, the passage quoted above is inapplicable to issues in this case, and the People’s 

reliance on it is misplaced.

More relevant to this case is the Uribe court’s discussion of government 

misconduct as it relates to a defendant’s right to counsel. After its discussion of 

substantive due process, the court in Uribe goes on to hold that “significant violations of 

the defendant’s constitutional right to counsel causing the defendant substantial 

prejudice” can serve as appropriate grounds for dismissal. (People v. Uribe, supra, 199 

Cal.App.4th at p. 866.) In fact, Uribe specifically cites several cases where the 

misconduct involved egregious, but not brutal, interference with attorney-client 

relationships. (Id. at pp. 867-869.) Among the cases cited is Morrow v. Superior Court, 

supra, 30 Cal.App.4th at page 1263 where the Second Appellate District held the act of 

eavesdropping on confidential courtroom communication “‘shocks the conscience’” and 

merits the dismissal of criminal charges.

Indeed, there is simply no support for the People’s contention that an act must 

involve some form of physical brutality in order to support a sanction of dismissal. 

Meanwhile, there is ample support for defendant’s contention that egregious violations of 

a defendant’s constitutional rights are sufficient to establish outrageous government 

misconduct. In fact, the Uribe court based its reversal of an order of dismissal not on the 

lack of brutality on the part of the prosecutor, but due to a lack of prejudice to the 

defendant’s rights. (People v. Uribe, supra, 199 Cal.App.4th at p. 861.) Put differently, 

while some forms of brutality may be sufficient to violate a defendant’s right to 

substantive due process, ample case law supports the conclusion that such brutality is not 

necessary to establish outrageous government misconduct.

Here, the trial court found Murray deliberately altered an interrogation transcript 

to include a confession that could be used to justify charges carrying a life sentence, and 

he distributed it to defense counsel during a period of time when Murray knew defense 
9.

counsel was trying to persuade defendant to settle the case. Further, Murray did not 

reveal the alterations until nine days later, and only then when he was directly confronted 

about the fabricated lines by defense counsel. This is egregious misconduct and, as is 

shown below, it directly interfered with defendant’s attorney-client relationship. Because 

Murray clearly engaged in egregious misconduct that prejudiced defendant’s 

constitutional right to counsel, the trial court was correct in finding Murray’s actions 

were outrageous and conscience shocking in a constitutional sense.

III. The Prosecutor’s Misconduct Prejudiced Defendant’s Right to Counsel

The right to counsel extends to protect the right of a defendant to retain the 

attorney of his or her choice. (United States v. Gonzalez–Lopez (2006) 548 U.S. 140, 

147–150.) Accordingly, a defendant’s right to counsel is prejudiced when government 

misconduct requires his or her retained counsel to withdraw, even if a competent 

replacement is obtained. (Boulas v. Superior Court, supra, 188 Cal.App.3d at pp. 429-

430.) When counsel is appointed rather than retained, “the parties enter into an attorneyclient relationship which is no less inviolable than if counsel had been retained.” (Smith 

v. Superior Court (1968) 68 Cal.2d 547, 562.)

It is undisputed Murray engaged in prosecutorial misconduct when he provided 

defense counsel with a fraudulent transcript of defendant’s police interrogation while the 

plea bargaining process was ongoing. In response to Murray’s misconduct, Hinman filed 

a motion to dismiss, and he and defendant waived the attorney-client privilege so they 

could testify at the evidentiary hearing. Because of that waiver of privilege, and because 

the People’s response to the motion to dismiss contained an unsubstantiated claim that 

Hinman had privately admitted defendant did not have a viable defense, the public 

defender’s office removed Hinman as defendant’s attorney. Had Murray not distributed 

fraudulent evidence during discovery, there would have been no need for defendant’s 

motion to dismiss, the waiver of attorney-client privilege, or the motion response that 

claimed Hinman had stated defendant did not have a viable defense. Therefore, it is 
10.

abundantly clear Murray’s prosecutorial misconduct directly led to defendant losing 

Hinman as his trial counsel.

In People v. Noriega (2010) 48 Cal.4th 517, 523-524, our Supreme Court 

acknowledged that, while a trial court could remove an appointed attorney over a conflict 

of interest, the improper removal of an indigent defendant’s appointed counsel posed a 

threat to the defendant’s constitutional right to counsel. There is simply no realistic 

difference between government action that improperly removes a defendant’s counsel 

directly and government misconduct that necessarily leads to a defendant’s counsel being 

forced to withdraw. In both scenarios government misconduct leads to the loss of a 

defendant’s original counsel, and in both scenarios the defendant’s right to counsel had 

been prejudiced.

Further, even if privilege considerations had not compelled the removal of Hinman 

as defendant’s trial counsel, Murray’s misconduct also inflicted irreparable damage to 

Hinman and defendant’s attorney-client relationship. By providing Hinman with 

fabricated and deeply incriminating evidence during plea negotiations, Murray caused 

Hinman to use that fraudulent evidence to attempt to convince defendant to settle the 

case. It would be extremely difficult for defendant to trust his own trial counsel after 

being presented with false evidence and advised to settle. Indeed, defendant testified he 

was comfortable going to trial with Hinman as his attorney before Hinman approached 

him with falsified evidence, at which point defendant “[did not] even trust in [his] 

attorney anymore.”

In that sense, this case strongly resembles Barber v Municipal Court (1979) 24 

Cal.3d 742. In Barber, a group of protesters, including an undercover police officer, was 

arrested following a demonstration at a nuclear power plant. (Id. at pp. 746-747.) The 

prosecutor did not inform defense counsel the undercover officer was a police agent, and 

the officer subsequently attended attorney-client strategy meetings with the other 

defendants. (Id. at p. 748.) Upon being informed of the officer’s true identity by the trial 
11.

court, defense counsel moved for dismissal, but the trial court denied the motion. (Id. at 

pp. 749-750.) The matter was appealed to our Supreme Court, which ordered the charges 

dismissed. (Id. at pp. 756-760) In support of its order, the court held that the 

government’s intrusion into the attorney-client relationship had prejudiced the defense by 

eroding the defendants’ trust in their counsel and causing the defendants to be unwilling 

to fully cooperate with their attorney, who they feared was serving as an agent of the 

state. (Id. at p. 756.)

While Murray did not insert an undercover agent into defendant’s meetings with 

Hinman, he did provide fraudulent and material evidence to Hinman that Murray either 

knew or should have known Hinman would discuss with defendant. Once the fraudulent 

nature of that evidence was revealed, defendant, like the defendants in Barber, was 

justified in having suspicions as to whether his attorney was representing defendant’s 

interests or acting as an agent of the state by presenting falsified evidence to defendant 

and simultaneously advising defendant to settle the case. This interference with the trust 

aspects of the attorney-client privilege was prejudicial under Barber.

By contrast, the People’s reliance on People v. Uribe, supra, 199 Cal.App.4th 836 

is again misplaced as it is readily distinguished. In Uribe, the Sixth Appellate District 

had previously reversed a defendant’s conviction due to a Brady (Brady v. Maryland

(1963) 373 U.S. 83) violation, and upon retrial the trial court dismissed the charges 

against the defendant after the prosecutor perjured himself during a hearing concerning 

the prior Brady violation. (Uribe, supra, at pp. 840-841.) The court reversed the 

dismissal, holding the defendant had not been prejudiced, as the false testimony 

concerned a violation for which the defendant had already been granted a new trial. (Id. 

at pp. 872-874.)

In this case, however, Murray’s misconduct did not relate to an ancillary 

proceeding concerning an issue for which there had already been an appropriate remedy. 

Instead, it was misconduct that severed the trust in defendant’s attorney-client 
12.

relationship, necessitated defendant waiving his attorney-client privilege, and led to the 

removal of counsel that defendant was comfortable with. Accordingly, the government’s 

misconduct severely and prejudicially interfered with defendant’s right to counsel.

IV. Dismissal is an Appropriate Sanction for the Prosecutor’s Misconduct

The People also assert on appeal that, even if Murray engaged in outrageous 

prosecutorial misconduct, dismissal was not an appropriate sanction. We disagree. In 

support of its argument, the People cite United States v. Morrison, supra, 449 U.S. 361 in 

which the court held the following:

“Our approach has thus been to identify and then neutralize the taint by 

tailoring relief appropriate in the circumstances to assure the defendant the 

effective assistance of counsel and a fair trial. The premise of our prior 

cases is that the constitutional infringement identified has had or threatens 

some adverse effect upon the effectiveness of counsel’s representation or 

has produced some other prejudice to the defense. Absent such impact on 

the criminal proceeding, however, there is no basis for imposing a remedy 

in that proceeding, which can go forward with full recognition of the 

defendant’s right to counsel and to a fair trial. [¶] More particularly, absent 

demonstrable prejudice, or substantial threat thereof, dismissal of the 

indictment is plainly inappropriate, even though the violation may have 

been deliberate.” (Id. at p. 365.)

Based on this language, the People posit that dismissal was inappropriate in this 

case, as the proceeding could have “go[ne] forward with full recognition of the 

defendant’s right to counsel and to a fair trial” after the transcription fabrication was 

revealed. (United States v. Morrison, supra, 449 U.S. at p. 365.) The People fail to note, 

however, that the court explicitly held in that same excerpt that dismissal was 

inappropriate only in the absence of “demonstrable prejudice” that “has had or threatens 

some adverse effect upon the effectiveness of counsel’s representation or has produced 

some other prejudice to the defense.” (Ibid.) Accordingly, there is no need to prove a 

proceeding could not go forward with full recognition of a defendant’s right to counsel if 

it can be established that prejudice has already occurred.
13.

Indeed, while the People go to great lengths to establish defendant’s right to a fair 

trial was not prejudiced by Murray’s misconduct, they fail to address the fact Morrison 

applies to “the criminal proceeding” as a whole. (United States v. Morrison, supra, 449 

U.S. at p. 365.) Accordingly, prejudice occurring during the plea negotiating process can 

be, and has been, sufficient to support a sanction of dismissal. (See People v. Moore, 

supra, 57 Cal.App.3d at pp. 441-442 [interference with defendant’s right to counsel 

during plea negotiations merits dismissal]; Boulas v. Superior Court, supra, 188 

Cal.App.3d at p. 433 [premising a plea offer on defendant firing counsel merits 

dismissal]; Morrow v. Superior Court, supra, 30 Cal.App.4th at p. 1255 [eavesdropping 

on attorney-client communication following a plea offer merits dismissal].)

Here, as we have explained, the defense was plainly prejudiced by Murray’s 

dissemination of a falsified transcript during the plea negotiating process, and defendant’s 

right to counsel was prejudiced by the need to remove Hinman as defense counsel, which 

was a direct consequence of Murray’s misconduct. These are obvious examples of 

prejudice. As the People have failed to present any authority establishing dismissal is 

inappropriate in cases involving actual, demonstrated prejudice, dismissal is an 

appropriate sanction under Morrison.

In addition to this vindication of defendant’s rights, the trial court’s access to the 

sanction of dismissal also serves as a potent deterrent to government misconduct. In 

Barber v. Municipal Court, supra, 24 Cal.3d 742, our Supreme Court held the insertion 

of undercover agents into attorney-client strategy sessions required dismissal, as “[t]he 

exclusionary remedy is ... inadequate since there would be no incentive for state agents 

to refrain from such violations. Even when the illegality is discovered, the state would 

merely prove its case by the use of other, untainted evidence. The prosecution would 

proceed as if the unlawful conduct had not occurred.” (Id. at p. 759.)

Again, while Murray did not insert an undercover agent into defendant’s meetings 

with Hinman, he did provide fraudulent and material evidence to Hinman that Murray 
14.

either knew or should have known Hinman would discuss with defendant. Once the 

fraudulent nature of that evidence was revealed, defendant, like the defendants in Barber, 

was justified in having suspicions as to whether his attorney was representing defendant’s 

interests or acting as an agent of the state by presenting falsified evidence to defendant 

while simultaneously advising defendant to settle the case.

Further, as in Barber, any remedy short of dismissal fails to provide “incentive for 

state agents to refrain from such violations.” (Barber v. Municipal Court, supra, 24 

Cal.3d at. p. 759.) Had defendant pled guilty before Hinman confronted Murray about 

the falsified evidence, it is unlikely Murray’s flagrant misconduct would have ever come 

to light. If the sole penalty for attempting to induce a plea agreement through fraudulent 

evidence is to simply discard the fraudulent evidence and continue the proceedings, “the 

state would merely prove its case by the use of other, untainted evidence,” and “[t]he 

prosecution would proceed as if the unlawful conduct had not occurred.” (Ibid.) Indeed, 

if the People’s proposed remedy were adopted, the only result of the prosecution’s gross 

misconduct would have been the loss of defendant’s attorney and the replacement of the 

prosecutor. Such a result would do little to deter future misconduct and nothing to 

vindicate defendant’s constitutional rights.

Therefore, as the facts of this case plainly demonstrate prejudice, dismissal of the 

charges against defendant was an appropriate sanction under Morrison. Additionally, as 

merely excluding the fraudulent evidence would do nothing to deter future misconduct, 

dismissal of the charges against defendant was also an appropriate sanction under Barber. 

Given the trial court’s discretion in dismissing a criminal case for outrageous government 

misconduct, we simply cannot conclude the trial court abused that discretion by 

employing a legally appropriate sanction, as the application of an appropriate sanction is 

not “arbitrary, capricious, or patently absurd.” (People v. Shaw, supra, 64 Cal.App.4th at 

p. 496.) Accordingly, we affirm.
15.

DISPOSITION

The dismissal is affirmed.

___________________________

PEÑA, J.

WE CONCUR

________________________________

DETJEN, Acting P. J.

________________________________

SMITH, J.
Filed 3/23/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

EFRAIN VELASCO-PALACIOS,

Defendant and Respondent.

F068833

(Super. Ct. No. TF006398A)

ORDER GRANTING REQUEST FOR 

PUBLICATION

As the nonpublished opinion filed on February 24, 2015, in the above entitled 

matter hereby meets the standards for publication specified in the California Rules of 

Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the 

Official Reports.

___________________________

PEÑA, J.

WE CONCUR

________________________________

DETJEN, Acting P. J.

________________________________

SMITH, J.