Following Anthony Becker’s conviction earlier this month, the ex-Santa Clara official’s attorneys say they plan to appeal the decision that could land him in prison — and they may be hoping for a second chance to introduce evidence the trial judge refused to allow, according to one legal expert.
It’s the latest move by Becker’s legal team to secure a new trial or get the case thrown out altogether. The former Santa Clara vice mayor was found guilty in Santa Clara County Superior Court in Morgan Hill on Dec. 5 of leaking the 2022 “Unsportsmanlike Conduct” civil grand jury report and of felony perjury. He resigned from his seat on the Santa Clara City Council the following day.
Becker is expected to be sentenced Jan. 31, and his attorneys have 60 days after that to appeal.
“We will be filing an appeal well within time,” Christopher Montoya, a deputy public defender representing Becker, said. “Exactly when has not been determined.”
Perjury carries a maximum sentence of four years in prison, but District Attorney Jeff Rosen said earlier this month that he doesn’t feel like this is “a state prison case,” instead recommending a “combination of jail time and fines.”
Becker’s attorneys did not respond to a request for comment about the grounds on which they are planning to appeal, but San Jose-based attorney Steven Clark said they might argue that the judge in the case should have let them show the jury that someone else could have leaked the report.
“I think that was a big part of the defense strategy was to say lots of people had access to this, lots of people wanted to curry favor with the 49ers and lots of people had the motive to and the opportunity to commit this,” Clark said. “What the judge said is that the only person that’s on trial is Anthony Becker, not anybody else, so it’ll be interesting to see how the court looks at that.”
Becker’s appeal will be filed in the Sixth District Court of Appeal, which is located in downtown San Jose. In the 2023 fiscal year, 312 criminal notices of appeal were filed in the court — an uptick from 174 filed the year prior, according to a recent report from the Judicial Council of California.
Hundreds of pages of court documents reviewed by The Mercury News earlier this year showed that Becker’s legal team was previously building a case that someone else had motive to leak the report to the San Francisco Chronicle and other sources — particularly Mayor Lisa Gillmor.
Becker was ultimately found guilty of leaking the report — which chastised the San Francisco 49ers’ influence on several members of the council — to the NFL team and the Silicon Valley Voice.
While preparing for the trial, Becker’s attorneys argued that he was being selectively prosecuted and that the DA’s Office declined to fully investigate Gillmor and then-Councilmember Kathy Watanabe. Becker was challenging Gillmor for mayor at the time of the leak.
But a judge ruled that Becker’s legal team couldn’t use that argument. Throughout the trial, the prosecution objected to questions by the defense that sought answers as to who else had access to the report before it was public.
At one point, Montoya asked Ben Holt — an investigator with the DA’s Office — if he had knowledge of whether the civil grand jury that was investigating the leak was going to make an “accusation” against Councilmember Kevin Park. It was revealed during the trial that Park had a phone call with Rahul Chandhok, the former 49ers’ chief of communications, around the time the NFL team was crafting a response to the report. Judge Javier Alcala didn’t allow the question.
“What the People are trying to do is not allow the defense to have a defense at all,” Montoya told Judge Alcala at one point during the trial.
Clark said that Becker’s attorneys could also potentially bring in issues previously raised in the courtroom, such as the two motions they filed the day before the jury began deliberations. Judge Alcala quickly denied both without explanation.
In the first motion, Becker’s attorneys asked the judge to dismiss the case, arguing that the prosecution failed to present “substantial evidence.” The second asked for the judge to declare a mistrial on the “grounds that the destroyed, late-discovered and excluded evidence in this case and questioning of witnesses” were prejudiced.
The destroyed evidence became a major issue in the final days of the trial. Holt admitted that an audio recording that documented a search warrant being served on Chandhok’s home was wiped from his phone. Chandhok — the prosecution’s star witness — had testified that Becker leaked him the report.
Holt said the recording might have captured privileged attorney-client conversations Chandhok was having with his lawyer, which meant a special master would have to review whether it was something the prosecution and the defense should have access to.
But Holt never did, and when he received a new phone earlier this year, the recording was lost when the old phone was factory reset. Becker’s attorneys didn’t learn of it until Oct. 31 — days before the trial started — and argued that Holt wasn’t trained at the time on how to handle privileged information.
Clark said that these types of motions are often filed to “preserve that issue for appeal.”
If Becker wins his appeal, Clark said that it would be sent back for another trial, or he might be able to reach a settlement.