Smiley Coyotl

When is a prosecutor not a prosecutor? The answer spared a Santa Ana activist/punk rocker from criminal charges

Last week, Orange County Superior Court Judge Kelly MacEachern tossed out a criminal case against a Santa Ana activist whom police roughly ejected from a Costa Mesa City Council meeting last year.

The man was charged with resisting arrest and disorderly conduct. The surprise ruling in the case came when MacEachern discovered that the prosecutor, a lawyer contracted by Costa Mesa as a city attorney, wasn't actually a prosecutor, but merely a private lawyer who, according to the California Constitution, had no business being in the courtroom.

The 26-year-old activist, Coyotl Tezcatlipoca—he also goes by the name Benito Acosta—was arrested on Jan. 3, 2006, at a packed city council meeting at which members of the public showed up to share their views on Mayor Allan Mansoor's plan to deputize city cops as federal immigration agents. Among the speakers was Minuteman Project founder Jim Gilchrist, who praised Mansoor as a patriot and received the mayor's reciprocal adulation. But when Tezcatlipoca took his turn at the podium, he ran into trouble almost immediately.

Coyotl Tezcatlipoca. Photo by Keith May.
Coyotl Tezcatlipoca. Photo by Keith May.

Mansoor interrupted Tezcatlipoca when the speaker asked audience members to stand up if they opposed the mayor's proposal. Then the mayor told the activist to stop talking 30 seconds before his three-minute speaking time had expired.

"I knew my time wasn't up because I had timed myself," Tezcatlipoca told the Weekly in an interview last week. "There's a buzzer to let you know when your time is finished. But the cops kept telling me to leave, and one was pushing me. I kept telling him not to push me because I knew it wasn't fair. I hadn't done anything wrong."

Several police officers dragged Tezcatlipoca out of the chamber and allegedly punched him and placed him in a choke hold. They brought him to the police station, then took him to Hoag Hospital for treatment for bruises to his head and back, and then back to the station. The cops finally released Tezcatlipoca at 12:30 the following morning, after writing him several tickets for resisting arrest and disorderly conduct. Citing the "interest of justice," the district attorney's office refused to file charges against Tezcatlipoca.

You'd think the story might have ended there, but the city of Costa Mesa apparently felt Tezcatlipoca needed to be taught a lesson. In June 2006, Danny Lee Peelman, a Fullerton lawyer contracted by Costa Mesa as a city attorney, sent Tezcatlipoca a letter informing him that he had to show up in court to face the same charges the DA's office had refused to file. (Peelman did not return the Weekly's calls seeking comment for this story.) The case began a few months later, with Tezcatlipoca represented free of charge by both a private attorney and Belinda Escobosa Helzer, a staff attorney with the American Civil Liberties Union.

Escobosa Helzer unsuccessfully filed motions to dismiss the case on the basis that the obscure municipal codes dealing with conduct during city council meetings that her client allegedly had broken were unconstitutional and that the city's prosecution of the case was politically motivated. "We didn't feel that Coyotl was being given a fair shake," Escobosa Helzer told the Weekly last week. "But we did not prevail with any of those motions."

The case went forward, with a scheduled trial date of Sept. 25, 2007. "During the trial, it became clear to me that the suspicions we had that Coyotl wouldn't get a fair trial were evident," she said, adding that Peelman "wasn't acting like a [trained] prosecutor" and had even been admonished by MacEachern for his courtroom behavior.

If Peelman wasn't acting like a trained prosecutor, it might have had something to do with the fact that, in reality, he isn't one.

As it turns out, Peelman had never even been sworn as a prosecutor as required by state law. The simple ceremony is vital in that it holds prosecutors to a higher ethical standard than private attorneys by requiring them to pursue justice by exploring exculpatory evidence and seeking the truth, not just a conviction. In chambers, MacEachern asked Peelman if he'd been sworn in, and he acknowledged that he hadn't been, adding that he didn't believe it was necessary.

"We were very shocked to hear he hadn't been sworn in," Escobosa Helzer said. "It confirmed our suspicions that this was merely a private attorney prosecuting a private incident, not seeking justice and trying to determine if Coyotl had actually violated the law."

The following day, MacEachern dismissed the case.

The ACLU still represents Tezcatlipoca in his federal civil-rights case against the city of Costa Mesa, which asserts that his rough eviction from the meeting and subsequent arrest were not only a violation of his right to free speech, but also constituted excessive force and wrongful arrest.

For his part, Tezcatlipoca, when asked about his future plans, says he just wants to get on with his life. A onetime member of the Santa Ana punk band Cuauhtemoc, whose blazing single "Bienvenidos a Chiapas" was included on OC Weekly's 2003 Feedback compilation, Tezcatlipoca says his current band, Colectivo Error, is working on a punk/hip-hop/son jarocho album, but his main goal is keeping up with his homework at Orange Coast College, where's he's pursuing a history degree with a minor in political science.

"I gotta go back to school, man," he said. "I just want to get back to to my life."


NSCHOU@OCWEEKLY.COM

 
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