Acosta case dismissed

The city of Costa Mesa’s only hope of reviving a case against student activist Benito Acosta is in appellate court, after Orange County Superior Court Judge Kelly MacEachern on Monday threw the case out because of the city prosecutor’s failure to get sworn in before filing the charges in 2006.

In a trial that began Thursday, the city was pursuing three misdemeanor charges, alleging Acosta violated city code at a Jan. 3, 2006, City Council meeting.

Acosta, 26, who also goes by the name Coyotl Tezcatlipoca, was speaking against a city plan to enforce immigration law. Mayor Allan Mansoor cut him off when he urged people, over the mayor’s objections, to show their support by standing up. Police then escorted Acosta from the chambers and, after a brief struggle, arrested him.

City Prosecutor Dan Peelman is a private attorney with Jones & Mayer, the firm that provides Costa Mesa’s city attorney. The fact that he never took an oath as a public prosecutor came to light Friday in the judge’s chambers, when MacEachern asked him if he’d been sworn in. Peelman said he hadn’t, according to attorneys.

Peelman was sworn in as a prosecutor at 8:15 a.m. Monday by the Costa Mesa city clerk, but that didn’t satisfy MacEachern. She told him the state constitution required him to take an oath as a public prosecutor in order to file and argue the case. The fact that he got sworn in Monday was “somewhat of a tacit admission that the oath was in fact necessary,” she said. “This isn’t a harmless error. This is a constitutional issue.”

Outside the courtroom, Acosta smiled but made few comments, other than to say he looks forward to returning to school and getting on with his life.

His attorneys said the fact that the case was prosecuted has made people less likely to speak out to the City Council, and they don’t believe the point was to seek justice. A civil rights case against the city, filed for Acosta by the ACLU, is pending.

“I think the [city’s] primary motivation was the federal lawsuit and to try to convict him of something to cut their losses,” attorney B. Kwaku Duren said.

The Orange County District Attorney in 2006 declined to file charges alleging penal code violations, including interfering with a police officer and battery of a police officer.

Peelman said he’s prosecuted cases for other cities and never had to take an oath before. He got sworn in Monday simply to satisfy the court, he said — not because he agreed that the oath was required.

The city can’t bring the same charges against Acosta again, Peelman said, but before the judge’s ruling Monday he asked an appellate court for an injunction to prevent the case from being dismissed. If the appellate court finds the dismissal was in error, the case could be revived, but whether the city will want to go forward is unclear.

City Councilwoman Katrina Foley declined to comment because litigation is still pending.

Attempts to reach Mansoor Monday were unsuccessful.

The ACLU’s civil case is now in the discovery phase. ACLU attorney Belinda Escobosa Helzer, who was co-counsel for Acosta, said it will likely move faster now that the criminal case has been resolved.

POLL

Should Costa Mesa move forward if the Acosta case is revived? Go here to vote. To further express your opinion, e-mail dailypilot@latimes.com. Please spell your name ,and include your hometown and phone number for verification purposes only.

TIMELINE

It took almost two years for student activist Benito Acosta to be tried on charges stemming from his arrest at a Jan. 3, 2006, Costa Mesa City Council meeting. The case was thrown out by a judge Monday.

Dec. 6, 2005

Costa Mesa City Council considers and approves a proposal to have city police trained to enforce federal immigration law.

Jan 3, 2006

The community responds to the proposal vehemently, both for and against it. student Benito Acosta, using the name Coyotl Tezcatlipoca, protests the plan at a council meeting, disobeys the mayor’s orders, scuffles with police and is arrested.

February 2006

Orange County District Attorney spokeswoman Susan Schroeder says the D.A. will not file charges against Acosta for resisting arrest and battery of an officer, but the city can pursue a remaining alleged municipal code violation.

March 2006

The ACLU files a lawsuit against the city, alleging Acosta’s civil rights were violated.

May 2006

City Prosecutor Dan Peelman files charges against Acosta for three municipal code violations stemming from the January meeting.

Sept. 27, 2007

The People vs. Benito Acosta comes to trial, after a one-month delay because Peelman was on medical leave.

Oct. 1, 2007

The trial is thrown out by a judge because Peelman failed to be sworn in as a public prosecutor prior to filing the case. The case filed by the ACLU is still pending.