High Court Won’t Review Penn Case; Stage Set for Retrial

The California Supreme Court on Wednesday refused to consider Sagon Penn’s plea for a review of his case, clearing the way for a retrial of the Southeast San Diego man on charges of killing one police officer and wounding another and a civilian observer.

The decision restarts a process halted three months ago, when the justices intervened at the 11th hour to block a retrial so they could weigh defense attorney Milton J. Silverman’s allegations of misconduct by police and prosecutors in Penn’s first trial.

Only Chief Justice Rose Elizabeth Bird voted to undertake a full-scale review of the defense charges.

San Diego County prosecutors said Wednesday they were ready to return to court to try Penn, 24, on charges stemming from the shooting death of San Diego Police Agent Thomas Riggs and the wounding of Police Agent Donovan Jacobs and civilian ride-along Sara Pina-Ruiz.

“It was difficult to prepare anything with the status of being in limbo, and since the hearing has been denied, we’re just back to Square One and we’ll go from there,” said Deputy Dist. Atty. Michael Carpenter, who prosecuted Penn at the first trial and will be the lead prosecutor for the retrial.

Penn’s father, Thomas Penn, said he hopes only that the truth will emerge about the March 31, 1985, confrontation between his son and the two police officers in Encanto.

“I look for the best and I expect the worst,” he said. “I hate to see Sagon go through another long trial. But if he has to, I’m going to be back with him till death do us part.”

After a four-month trial, Penn was found innocent June 26 of a murder charge in the shooting of Riggs and attempted murder charges in the wounding of Jacobs.

The jurors deadlocked on other charges, most of them favoring acquittal.

Dist. Atty. Edwin Miller chose to seek Penn’s retrial on the array of charges on which the jury deadlocked: voluntary manslaughter in Riggs’ death, attempted murder in the shooting of Pina-Ruiz, and attempted voluntary manslaughter and assault with a deadly weapon in the wounding of Jacobs.

Lawyers and court officials were uncertain Wednesday how quickly a new trial date would be set.

San Diego Superior Court Judge David Gill, who earlier was named to preside in the retrial, had not been formally notified by late Wednesday afternoon of the Supreme Court decision. Once he receives notice, Gill is expected to meet with Carpenter and Silverman to agree on a date to resume the trial court proceedings.

Silverman could not be reached for comment.

He sought in the first trial to persuade jurors that Jacobs provoked the shooting by attacking Penn and degrading him with racial slurs.

Silverman’s appeal to the Supreme Court contended that prosecutors and police concealed a transcript of a 1978 Police Academy disciplinary session in which Jacobs, then a trainee, was upbraided for impulsive, hostile behavior, including a willingness to use racial slurs.

The appeal also argued that prosecutors broke a promise to Superior Court Judge Ben W. Hamrick, who presided in the first trial, not to investigate a black juror’s conduct during the course of the proceedings.

The district attorney’s office has insisted that the Police Academy transcript is irrelevant, and that its investigation of the juror’s conduct was merely an effort to ensure she had not lied when she told attorneys before the trial that she was unbiased.

Prosecutors were confident they would prevail in the high court.

“I don’t think anybody here was surprised,” said Deputy Dist. Atty. Robert Phillips, who handled the case on appeal. “Though what Milt Silverman writes up always sounds very impressive, I knew legally he didn’t have any grounds for the appeal.”

Penn has hardly surfaced since being freed after the first trial, his father said. He enrolled at Point Loma Nazarene College, but quickly withdrew when he was greeted at the campus by a swarm of reporters. He has not returned to school or work since, Thomas Penn said.

“He hasn’t been doing anything but just laying low,” the father said.