A judge in Santa Clara County Superior Court who is scheduled Friday to sentence former county Supervisor George Shirakawa for sending false campaign mailers has asked Shirakawa to confess to more details on how he prepared and sent the phony mailers.
Judge Ron Del Pozzo said he would sentence Shirakawa to probation with community service instead of jail time after Shirakawa agreed to plead no contest Feb. 23 to preparing and sending fake campaign cards in 2010 meant to damage a candidate for San Jose City Council among Vietnamese-American voters.
The judge offered to impose the no-jail sentence on the felony charge as long as Shirakawa provided a statement to a probation officer accepting responsibility for creating and disseminating the mailer, according to prosecutors.
Shirakawa, 53, faced up to three years in prison on the charge of impersonating Magdalena Carrasco’s campaign committee to harm Carrasco’s run for council District 5 against Shirakawa’s former aide Xavier Campos during the June 2010 primary election.
Based on an offer by Del Pozzo to resolve the case, discussed in chambers Feb. 23 with Shirakawa’s lawyer Jay Rorty and Deputy District Attorney John Chase, Shirakawa changed his not guilty plea to no contest in exchange for community service and probation, according to prosecutors.
Last Friday at a hearing before Del Pozzo, Chase and Rorty discussed briefs they filed regarding the sentencing of Shirakawa, which Del Pozzo is set to formally impose this Friday.
Prosecutors disagree with the judge’s indicated sentence and insist that discussions on Shirakawa’s plea should be in open court at a sentencing hearing.
They argue that the defendant had not adequately demonstrated his remorse for what he did and should be sentenced instead to a year in county jail for his crime.
Chase said that to get a no-jail deal, Shirakawa needed to describe why and how he produced the mailers, while Rorty claimed his client had already admitted to preparing and sending them.
Chase said that Shirakawa had merely provided a short “blurb” in a letter written by Rorty to a probation officer in which the former supervisor acknowledged responsibility but did not give details on his involvement.
Del Pozzo then asked Rorty, in order to “squash the theories about the mailer,” to have Shirakawa write down a list of specifics of what went into the making of the fake mailer, such as how he produced it, how he mailed it, whether people in other political campaigns had knowledge of it, if he solicited any contributions having to do with the mailer, where he got the idea for it, what his intent was and anything else he would like to volunteer.
The false mailer, printed on postcards purporting to be from “Neighbors for Magdalena Carrasco for Council 2010,” which prosecutors said Shirakawa impersonated, featured a photo of Carrasco with a separate graphic of a Communist Vietnamese flag that is offensive to many immigrants from the former South Vietnam in the U.S., all to benefit Campos’ campaign.
The District 5 council seat in East San Jose includes a community of former residents of South Vietnam, which fought against the Communist regime of North Vietnam until the Vietnam War ended in 1975 with the Communists victorious.
Rorty, in his brief on Shirakawa’s sentencing, stated that his client had admitted to creating the mailer and that Shirakawa’s:
“full and unequivocal acceptance of responsibility for the crime weighs strongly in favor of a noncustodial sentence.”
The lawyer said that among the mitigating factors favoring community service is that there is no risk Shirakawa would create another false mailer because “his life as a politician is over.”
“The crime was also nonviolent and involved no physical harm or threat of such harm to Ms. Carrasco… Mr. Shirakawa admits he broke the law and deeply regrets offending the Vietnamese community.”
Prosecutors, in a brief co-written by District Attorney Jeff Rosen and Chase, said Shirakawa deserved a year in jail and claimed he not only damaged Carrasco but “also the democratic election process.”
Shirakawa, based on grand jury testimony, met with Carrasco before the 2010 primary, tried to persuade her not to run and threatened her by saying she would lose and “as a result of you not winning your future in San Jose will be over,” the prosecutors stated.
Carrasco ran anyway and on May 15, 2010, was informed by her campaign manager about complaints from Vietnamese-American voters about receiving mailers with the Communist flag beside a photo that appeared to be from her campaign, they said.
During the June 8, 2010, primary for District 5, Carrasco trailed Campos by 20 votes out of 5,562 cast.
In their November runoff, she lost to him by 371 votes out of 10,065 cast, or 3.7 percent, according to the district attorney’s office.
Of the 5,562 primary voters, 75 percent mailed in their ballots and the election ballots were sent out by the Registrar of Voters between that May 8 and May 17, the prosecutors said.
The defendant’s mailers were postmarked on May 14 and hundreds of ballots may have been returned before voters learned the postcards were fraudulent, they said.
The prosecutors said:
“Undoubtedly, this was the defendant’s plan, and there is every reason to believe he was successful in influencing at least 10 voters to change their votes.”
Shirakawa still has not revealed how he paid for the cards and if he notified the Campos campaign about it, they said.
The fact that Shirakawa refuses “to come clean about the crime only makes it more serious,” the prosecutors stated.
“In such a serious case, the question is not whether, but how much, jail is appropriate.”
The statement in his lawyer’s letter about the “flier” attributed to Shirakawa reads:
“I accept responsibility for the creation of the flier juxtaposing a picture of Ms. Carrasco with a flag of the republic of Vietnam. This flier was represented as being published by an organization dedicated to Ms. Carrasco’s election and identified by a unique FPPC number. My DNA appears on that flier because I created that flier. At the time I created the flier, I was aware that the flier contained a false Fair Political Practices Commission number, and the FPPC number would be used to falsely impersonate the Carrasco campaign. I regret my conduct and apologize to the voters and the Santa Clara (County) community for my actions.”
Shirakawa, a former school board member and San Jose city councilman, resigned from his District 2 seat on the Board of Supervisors in 2013 after pleading guilty to four felony counts of perjury, one count of felony misuse of public funds and seven misdemeanors for campaign finance filing and other violations.
He used more than $130,000 in public and campaign funds for personal use and to gamble at casinos in California and Nevada, prosecutors said.
A judge on Nov. 8, 2013, sentenced him to a year in jail with one day of credit for time served and three years’ probation. Shirakawa issued a public apology citing an addiction to gambling, paid $50,000 restitution and was released from jail in 2014 after serving six months.
In the Carrasco mailer case, Shirakawa, about two weeks before his 2013 sentencing, was indicted on the false impersonation charge by a grand jury on Oct. 24, 2013.
Prosecutors used evidence from the district attorney’s crime lab alleging that Shirakawa’s DNA was on a stamp on one of the original mailers.
Rorty and Shirakawa fought last year to get the false impersonation charge dismissed, claiming that it should have been included in his 2013 indictment, but a judge sided with prosecutors that it was a separate matter that developed independently from that case.
In his call for a community service sentence, Rorty said Shirakawa’s mailer, while offensive, resembled “hit pieces” that are commonly circulated in campaigns and was similar to protected speech under the First Amendment except that Shirakawa used Carrasco’s campaign name and FPPC number.
Last June, when Campos ran for re-election, Carrasco bested him in the primary and then won the District 5 seat on the City Council in November.