The prosecution and defense both rested their cases on Dec. 3, which means the perjury trial of Santa Clara City Council Member Anthony Becker is nearing its end.
Tomorrow, Judge Javier Alcala will read the jury instructions and oversee closing arguments before handing the case over to the jury.
The jury instructions will not include judicial notice about grand jury proceedings, as requested by the defense.
Becker’s attorney, Deputy Public Defender Chris Montoya, wanted to include several penal codes related to the civil grand jury, including the facts that the district attorney can interrogate witnesses, a person can be held in contempt for refusing to testify and witnesses are not allowed to bring a lawyer into the courtroom with them.
When Judge Alcala asked what was the point of telling the jury, Montoya said it was similar to the judicial notices granted to the prosecution.
Judge Alcala said those notices were allowed because there were things the prosecution needed to prove. While he didn’t see the point, he said he would read them out of an “abundance of caution.”
That’s when Deputy Public Defender Jason Malinsky argued that if they were to read these, they should read all the civil grand jury rules.
Judge Alcala changed his mind. He said the more he thought about it, the more “wasteful of time” it was.
He rejected all of the defense’s judicial notices.
Montoya filed them with the court for the record.
Destruction of Evidence Jury Instruction Will Not Be Included
Judge Alcala refused the defense’s request to include a jury instruction about the destruction of evidence. District Attorney’s Office investigator Ben Holt made an audio recording while serving a search warrant at the home of former 49ers public relations executive Rahul Chandhok. It was destroyed before it was entered into evidence.
Judge Alcala considered it to be an “untimely disclosure” since the prosecution notified the defense on Oct. 31, 2024. He agreed to allow a jury instruction about an “untimely” evidence disclosure.
Malinsky argued the decision was a remedy that did not merit because there was no “prejudicial violation” in the destruction of the evidence.
Judge Alcala stood by his ruling.
He also rejected the other items on the defense’s list of evidence received after the start of the trial.
Other Jury Instruction Rulings
The issue of third-party culpability also reared its ugly head. The court will include California Criminal Code 373, which tells jurors others “… may have been involved in the commission of the crime[s] charged against the defendant … you must not speculate about whether (that other person has/those other persons have) been or will be prosecuted.”
In the California Criminal Code, there is also a line that says, “The instruction does not apply to the testimony of …” and then includes a space to add names. The defense asked that the names of Elena Caple, Maggie Carr, Chandhok, Anne Moriarty and any other witness who received immunity to testify be included.
Judge Alcala denied the request. He said none of them committed perjury or had an obligation not to leak the report.
- During a discussion of California Criminal Code 252, the defense objected to the judge’s decision to use “… specific (intent/ [and/or] mental state) …” in jury instructions. The defense wanted the phrase “mental state” removed.
- The defense objected to Judge Alcala’s inclusion of portions of California Criminal Code 371, which covers suppression and fabrication of evidence. The defense argued there was no evidence Becker engaged in witness tampering and the jury instruction was “prejudicial.”
- In the case of perjury, the jury instructions must include the portions of testimony where the defendant is accused of perjuring themselves. Both sides agreed to the testimony included.
- The defense objected to Judge Alcala using the Malinsky’s version of the jury instruction of count two, saying it was not an “accurate depiction of law.”
Holt’s Testimony Wraps Up
In the morning, Holt gave what could be the most damning piece of testimony to date. A juror asked for a detailed report about Holt’s investigation, which allowed Holt to talk for several minutes about the evidence and his opinions of why Becker was guilty.
Montoya objected several times.
“This whole narrative is leading,” he said at one point.
Judge Alcala overruled the objections.
Montoya did his best to recover in re-cross.
Holt testified Chandhok’s goal was to protect Becker.
“The 49ers’ primary intent was getting Becker elected to mayor,” said Holt.
Montoya asked how Chandhok’s immunity deal protected Becker. He also pointed out through testimony that Chandhok testified after Becker lost his bid for mayor.
Second Search Warrant Served on Becker
Holt and his team served a second search warrant on Becker on May 3, 2023, the same day Becker was arraigned on the perjury charges.
Montoya asked if Holt wanted to search Becker’s home without Becker present.
Holt said the team wanted Becker there; that’s why the warrant was served at 6:40 a.m.
“We did not want to interfere with him getting to court,” said Holt.
When asked what time Becker’s hearing was, Holt did not know.
In redirect, Malinsky asked Holt what new evidence was found to warrant a second search warrant.
Holt said evidence showed Becker had a “burner” phone. A witness said Becker used it to communicate about the grand jury report.
On re-cross, Montoya pointed out the DA’s Office still had Becker’s phone, so he needed a new one.
Holt agreed but said Becker had a second phone with a different number and a third phone that was his city phone.
During the search, investigators seized four cell phones, one of which belonged to Becker’s husband, two tablets and three laptops.
When asked what evidence was found on those devices, Holt said they could not get into them because Becker denied them access.
Holt agreed it was Becker’s right to refuse. At that point, Becker had been indicted and had an attorney. Investigators could not brute force their way into the phones.
California’s Shield Law
Montoya also tried to show the investigation was not thorough enough. He asked Holt if any reporters had been interviewed for the investigation.
Holt said no because the Shield law prevents them from compelling reporters to answer.
Montoya said “asking” is different from “compelling.”
Holt said there was a brief discussion, but the idea was “ridiculous.” The team determined that “out of respect” for the press and its role as the “fourth branch” of the government, they did not ask.
Montoya asked Holt specifically about the leak to the Chronicle since they knew Becker did not leak it to them.
Holt again cited the Shield law.
When Montoya asked if there was evidence that someone else leaked the report to the Chronicle, Malinsky objected. It was sustained.
Montoya then said that even though the investigation is “ongoing,” you still haven’t made an attempt to contact reporters.
“I would do the exact same thing today,” said Holt. “I still would not contact the press and ask them to reveal a source.”
During the morning break, Malinsky asked the court to include judicial notice about the Shield law since it would explain why the jury was not hearing from members of the media.
Montoya objected on several grounds and said the Shield law does not mean they cannot ask a reporter, just that the reporter has rights.
Judge Alcala agreed to issue the judicial notice.
Malinsky called the defense’s line of questioning “misleading.” Malinsky asked Judge Alcala to allow him to talk about the pretrial subpoena to the Chronicle and the fact that lawyers fought it.
“[The] defense’s action proves our decision was correct,” said Malinsky.
Montoya argued the prosecution never asked the Chronicle. Further, he said, the prosecution could have issued a subpoena for when the Chronicle’s first article about the report was posted online. While other sites show a post’s original upload time, the Chronicle’s site only shows an updated time.
He said the prosecution “didn’t want that evidence.”
Judge Alcala felt the Shield law covered it and said they could discuss in closing and let the jury decide.
In the afternoon, Montoya asked for added wording to the Shield law text read to the jury.
Judge Alcala determined if he added the defense’s wording, he would also have to make note of the Chronicle’s subpoena and how it was quashed.
Montoya withdrew the motion.
No Signal Data for Star Witness Rahul Chandhok
At one point, Holt was asked about Signal data and account info for Becker and Santa Clara City Council Member Kevin Park. The DA’s Office was able to obtain subpoenas and data for both accounts from Signal.
However, when the same subpoena was served for Chandhok, Holt said Signal did not have account information for Chandhok.
He had no explanation for why that was Signal’s response.
Through questioning, Montoya pointed out that Chandhok had immunity and Becker and Park did not.
Other Details from Holt’s Testimony
After both sides rested, the defense filed an 1118.1 motion. It asked the judge to acquit Becker on one or more of the charges based on “insufficient” evidence.
The motion was denied.
Also in court:
- Holt said 45 or more people were interviewed in the investigation into the leak of the civil grand jury report.
- When asked why no search warrant was served on Park, Holt said, “As the evidence against Mr. Becker grew, the evidence and probable cause for Mr. Park kind of died.”
- Holt testified there was “nothing incriminating” and “nothing exculpatory” on the deleted audio recording from Chandhok’s home. He also repeatedly said he never listened to the audio file.
- When Montoya asked about the deleted recording, he drew out through testimony that Holt never checked to ensure Chandhok was talking to his lawyer. If Chandhok was not talking to his lawyer, the conversation was not privileged.
- Malinsky entered a new document into evidence during redirect, leading to an objection from Montoya, who said the purpose of cross-examination is not to correct things. Judge Alcala overruled the objection.
- While Becker called Chandhok from a 510 number that turned out to be his husband’s phone, Holt testified there appeared to be nothing wrong with Becker’s phone. Becker made calls from his personal phone before and after the call to Chandhok.
- A chart the defense was told to pull from opening statements with the opportunity to bring it back in closing statements is now under scrutiny. Malinsky argued that it had “serious inaccuracies.” Judge Alcala decided to look it over and make a ruling tomorrow, on the day of closing statements.
The defense has filed a motion for a mistrial. It will be decided tomorrow.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
Day 12 Becker Perjury Trial: DA Investigator Testifies to Destroyed Evidence
Day 11 Becker Perjury Trial: Investigator Holt Continues Testimony
Day 10 Becker Perjury Trial: Council Colleague and DA Investigator Hammer Home Prosecution’s Claims
Day 9 Becker Perjury Trial: Criminalist Continues Testimony on Data Extraction
Day 8 Becker Perjury Trial: “Expert” Witness Takes the Stand
Day 7 Becker Perjury Trial: Civil Grand Jury Overseer Testifies
Day 6 Becker Perjury Trial: Prosecution Enters Becker’s Grand Jury Testimony
Day 5 Becker Perjury Trial: Damage Control And Campaign Financing
Day 4 Becker Perjury Trial: Fmr. City Attorney Steve Ngo Take the Stand
Day 3 Becker Perjury Trial: Defense Tries to Paint Chandhok as the Focal Point
Day 2 Becker Perjury Trial: Chandhok Testimony Resumes
Destroyed Evidence Discussed on Morning of Becker Perjury Trial
Day 1 Becker Perjury Trial: Opening Statements, Chandhok Testimony
Jury Selected in Becker Perjury Trial
Judge Rejects Claims of Political Conspiracy Against Vice Mayor Anthony Becker
Jury Selection Begins in Becker Perjury Trial
Judge Wraps Up Majority of Motions in Becker Perjury Trial
Judge Rules on Multiple Motions as Start of Becker Perjury Trial Nears
Potential Motion to Dismiss in Becker Trial
Becker Trial Jury Selection Starts in Late October
Becker Trial on Standby, Small Business Owner Kirk Vartan Subpoenaed
No Settlement in Becker Trial; Becker Team Withdraws Subpoenas
Becker’s Attorneys Want to Investigate DA’s Office for 2020 Grand Jury Report Leak
Mayor Gillmor’s Response to PRA Request Causes Judge to Reverse Rulings
Impacted Court System Forces New Delay in Becker Trial
Judge Denies Series of Defense Motions as Start of Becker Perjury Trial Nears
Jude Barry: The Related Company Lobbyist Subpoenaed in the Becker Trial
