SACRAMENTO, Calif. — Attorney General Bonta’s office, in the face of growing pushback from defense attorneys, says three disputed charges filed against the former head of one of the state’s largest labor unions, and her husband, should stick.
In a notice of demurrer filed with the court last month, defense attorneys Jeffrey Tsai, Cristina Guido, and Caleb Lin argued that the statute of limitations on two grand theft charges and one perjury charge filed against former SEIU executive director Alma Hernandez and her husband, Jose Moscoso, have expired.
“Prosecution for a felony grand theft or perjury must commence within four years of the crime’s commission or after law enforcement is on ‘inquiry notice’ of facts sufficient to ‘warrant an investigation’,” the lawyers wrote in their notice to the court. “The relevant law enforcement authority – the Fair Political Practices Commission – was in possession of all facts necessary to give rise to suspicion of the conduct alleged in Counts 1, 2, and 3 on June 24, 2015.”
They also claim that count three – a felony perjury charge – should instead be charged as a misdemeanor under the Political Reform Act of 1976, citing the Williamson rule involving a former Sonoma County Jail inmate. The California Supreme Court held in the ruling that when two statutes prohibit the same conduct, one general and one special, the special statute should reign supreme.
The Williamson rule is named after Alexander Williamson, a man convicted of felony conspiracy to contract without a license who was sentenced to an eight-month jail term. The Supreme Court held that the state Legislature carved out an exception to Penal Code Section 182 under the Business and Professions Code.
“Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute,” a 2011 explanation in People v. Murphy reads. “In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute.”
Last October, the couple was charged by complaint in Sacramento with thirteen felonies ranging from grand theft, filing false income tax returns, and failing to file quarterly reports with the EDD. If convicted, the duo could spend years behind bars.
Prosecutors say Hernandez stole $11,700 from the Working Families for Solorio for Senate 2014 PAC, where she worked as treasurer, and concealed the theft by filing fraudulent campaign expenditure reports to the Secretary of State, creating false vendor invoices, and burying the fraudulent expenditures in a list of legitimate ones.
She allegedly worked to hide the theft by concealing the payments in two checks made out to her husband for “PAC food services”, which Moscoso told investigators in 2018 he never did, asserting he never even worked in the food industry. Hernandez later told investigators that she would resign from SEIU because she didn’t want to bring “shame on her organization.”
In addition to stealing the PAC funds, the couple has been charged with filing false tax returns from 2014 to 2018, underreporting their income by over $2 Million. Prosecutors also say Moscoso owes over $80,000 to the EDD for failing to report or pay employment taxes for his employees at an air duct cleaning business.
In an opposition to the demurrer filed earlier this month, prosecutors said the statute of limitations hadn’t expired because the lead investigator on the case, Ann Flaherty, first knew of the suspicious payments in 2018 and didn’t even know who Hernandez or her husband were before then.
“Prior to August of 2018, there were no facts or circumstances to warrant an investigation into Hernandez’s campaign filings or campaign expenditures…” Deputy Attorney General Emily Dahlke wrote. “The complaint alleges the earliest date the crime could have been uncovered – August of 2018.”
Bonta’s office also contends that law enforcement officials being able to probe a crime earlier doesn’t activate the statute of limitations and says the perjury charge is correct under 1990’s People v. Hedgecock, where the California Supreme Court held that the Legislature intended for felony charges to be filed in “serious violations” of the Political Reform Act.
“In this case, the facts support proceeding with the perjury charge given the serious nature of Hernandez’s violation of the act,” Dahlke continued. “Hernandez did not merely make a misstatement or omission on the campaign disclosure filing. Instead, the perjury was a premeditated concealment of her other felonious conduct, grand theft, which she had already committed.”
If a judge sides with the couple’s lawyers on the demurrer, the complaint will be kicked back to the Attorney General’s Office and will have to be amended. That ruling is currently scheduled to be handed down the morning of the 29th in a courtroom at the Main Jail.