O.C. judge guts sex-assault case against Newport Beach doctor, girlfriend

An Orange County Superior Court judge Friday gutted a sexual assault case against a Newport Beach hand surgeon and his girlfriend who were accused of drugging and assaulting two women, but ordered them to stand trial on drug charges, with the doctor also still facing gun charges.

Orange County Superior Court Judge Michael Leversen said he found the accusers “incompetent” and cited “various differing statements through the years” of what happened when they encountered Dr. Grant Robicheaux, 42, and Cerissa Riley, 36. He also pointed to their “refusal to be examined” after the alleged sex assaults.

Leversen dismissed two felony counts each of administering a drug and assault with the intent to commit a sex offense against the defendants.

Robicheaux and Riley still face single felony counts each of poisoning and sale of phencyclidine and sale or transport of a controlled substance.

They also face four misdemeanor counts of possession of a controlled substance.

Robicheaux also faces two felony counts of possession of an assault weapon.

The case has seen multiple twists since it was filed five years ago. It turned into a political football when now-Orange County Dist. Atty. Todd Spitzer was running to unseat former D.A. Tony Rackauckas. Spitzer criticized Rackauckas’ handling of the case, with then-candidate Spitzer questioning why Rackauckas did not move faster to file it.

After he was elected, Spitzer called for an internal review of the case, assigned two new prosecutors to the matter and then moved to dismiss all of the charges. That drew protests from several accusers and an Orange County Superior Court judge refused to toss the case.

Spitzer’s office was eventually recused from the case and the attorney general’s office took over. Attorneys for the accused argued for a special independent prosecutor, but that was denied by another judge. One of the judges involved in the case died while overseeing it, and another abruptly quit because he foresaw a potential appearance of a conflict due to a friendship with a possible witness in motions to dismiss the charges for alleged prosecutorial misconduct. Another judge also quit the case when defense attorneys complained about his temperament during hearings.

Since the attorney general’s office took over the case, attorneys representing the defendants have filed various motions challenging the original search warrant and alleging outrageous governmental conduct, all of which have been rejected. A civil suit filed by one of the alleged victims against the defendants, which the lead criminal defense attorney has used to gather evidence of his own, was dismissed earlier this year at the plaintiff’s request.

Robicheaux previously faced charges involving five alleged victims and Riley three alleged victims, but a prior Orange County Superior Court judge granted a motion from prosecutors to reduce the charges. There were initially a total of 13 accusers, some of whom prosecutors had planned to use as witnesses to show a pattern of behavior at trial.

The doctor’s defense attorney Philip Cohen told Leversen that it has been “devastating to see what’s happened to [Robicheaux], to his future.’’

Cohen said prosecutors “have an obligation to not continue a criminal case if they have a reasonable doubt,” adding that he thought it was “scary” that they argued to maintain the case after the preliminary hearing.

Cohen argued that one of the accusers waited 20 months to allege sexual assault.

“For the A.G. not to address that point is astonishing,” Cohen said.

The attorney alleged that one of the women did not initially tell police she was sexually assaulted, but seven years later told investigators she tried to tell them she was attacked but her claims were laughed off.

Cohen also argued that another accuser said she took a photo of bruises with her phone a day after the alleged attack, but data records indicate it was taken nearly a month later and that other photos from days after her encounter with the defendants showed no bruising.

Deputy Atty. Gen. Namita Patel, however, insisted that the accusers did not know each other, had similar stories that they related to friends after they met the defendants and a date rape drug was found in Robicheaux’s residence.

Patel argued that police responded to 911 calls about a woman screaming. If the women were willing participants why would they scream for help, she argued.

Robicheaux had video on his phone that he refused to share with police and investigators later found on his hard drive under a folder labeled “assault” that showed scratches he received in a scuffle described by the accuser, Patel argued.

Both women said they were fed drinks and at some point “blacked out,” Patel argued.

“What chances are there that two women who don’t know each other” have similar accounts, Patel said. “And what is the motive [to lie]?”

Patel argued in court papers that the “defendants assaulted Jane Doe 2 with the intent to commit rape of an intoxicated person. Beginning April 15, 2017, Jane 2 conversed with Robicheaux via the Bumble application. She did not know him, but learned that he was a doctor, who had been on a show on Bravo channel, which made him a legitimate person in her eyes. Once she began conversing with him, however, a very persistent Robicheaux, over the course of two days, offered to meet with Doe 2, a stranger, five times.”

They eventually agreed to meet for drinks, and the woman was “surprised” to see Riley there because she thought it was a date with the doctor, prosecutors said. Robicheaux told her Riley was a “good friend visiting from out of town,” and Riley “earned her trust by being nice and friendly,” Patel said.

After several drinks, they took an Uber ride to another bar where the doctor bought more drinks and Riley “offered her cocaine,” Patel said. The victim said she had never done drugs but “trusted Riley,” ingested the narcotic and her next memory was walking up the stairs to Robicheaux’s home,” prosecutors said.

She recalled waking up in the doctor’s home “with both defendants touching her in a sexual manner,” Patel said. As she was groped and undressed the victim said she had a “panic attack, and was crying hysterically,” because she “did not have control of her body and was unable to stand up or walk properly.”

The victim grabbed her phone at one point, went to a bathroom and took pictures of IDs of the two “in case something happened to her,” Patel said.

Another alleged victim told investigators that she and her roommate at the time went to Newport Beach restaurant-bar, Sharkeez, in October 2016 and eventually spent time drinking with the defendants. At some point, the woman “took a few sips” of a drink Robicheaux brought her, and then she had no memories of the rest of the night until she woke up in a “dark room, completely naked,” an investigator testified. Next to her was her roommate, who was also “topless,” and when the woman attempted to rouse her friend she could not wake her, the investigator said.

The woman — “feeling loopy’” — scrounged around for her clothes, but could not find her top. She said she fell out of the bed and was hanging on to things to stay on her feet, the detective testified.

The woman’s roommate told investigators the alleged victim’s screaming for help woke her up, and they locked themselves in a bathroom until police arrived.

When police later executed a search warrant at the residence they found numerous prescriptions, baggies of a powdery substance and multiple guns, some of which were registered to Robicheaux and some to a family member, prosecutors said. Among the guns found in a safe were a Glock handgun, shotguns, an AR-15 rifle and an AK-47, prosecutors said.

A search of Robicheaux’s home yielded “GHB, cocaine, MDMA, and psilocybin” in a bedroom closet in a small safe, prosecutors said.

The couple’s defense attorneys — Cohen, Scott Borthwick and Shawn Holley — argued in court papers that the “evidence introduced at the preliminary hearing reflects that Robicheaux and Riley were in a ‘swinging’ relationship, used and shared drugs and alcohol, and sometimes invited other women to join them in sex. None of this makes them rapists.’’

The defense attorneys said the prosecution’s case “rests on the unfounded assumption that anyone who engages in casual sex while drinking and using drugs also intends to rape anyone who elects to party with them, but ultimately opts not to join them in a sexual encounter. Not only is this an absurd assumption, it is absolutely belied by the evidence in this case.”

The defense said the woman who alleged she was attacked Oct. 2, 2016, told officers Robicheaux “had not tried to rape her or take advantage of her in any way,” but over the years her account “has changed dramatically.”

As for the other accuser, she “voluntarily drank more than she typically would and voluntarily did cocaine for ... the first time in her life,” the defense said.

Attorneys representing one of the accusers declined to comment on the judge’s ruling.

“There are still multiple felony counts pending before the court,” attorneys Matthew Murphy and Sharon Tekolian said in a statement. “We respect the process and it would, therefore, be improper for us to make any further comment at this time.”