SANTA ANA — A probation department report will recommend that former Orange County Treasurer Robert L. Citron be spared a term in state prison for his six felony convictions and instead be sentenced to a year or less in County Jail and probation, Superior Court Judge David O. Carter was told Monday.
But Citron's attorney, David W. Wiechert, told the judge at a hastily called hearing Monday that the district attorney's office plans to argue that Citron should spend some time in state prison.
Wiechert, who is trying to persuade Carter that the 70-year-old former treasurer should not spend time in jail or prison, told the court he learned of the sentencing recommendation in a telephone conversation with the San Diego County probation officer who is preparing the report.
The judge, who had prodded both sides to be ready for sentencing Dec. 29, agreed at the same hearing to postpone Citron's sentencing until Feb. 23, so that his attorney would have time to examine prosecutors' evidence against others implicated in the collapse of the county-run investment pool.
Carter called the hearing Monday, apparently after deciding to reverse the position he took Friday. Carter had ruled then that prosecutors did not have to share with Citron's attorney the evidence they had against Ronald S. Rubino, the former county budget director who was indicted last week on two felony counts of aiding and abetting Citron in the skimming of $60 million in interest from county pool investors.
To give Citron ample time to evaluate this recently gathered evidence, Carter rescheduled the sentencing.
Carter also granted a Citron motion that the county's unprecedented bankruptcy should not be considered at sentencing, because the crimes to which the former treasurer pleaded guilty did not cause the bankruptcy.
"Today was an important step in the achievement of a fair sentencing hearing for Mr. Citron," Wiechert said in an interview.
"Not only will we be able to obtain discovery with regard to Mr. Rubino, but the court recognizes that this is a case involving crimes that did not cause the bankruptcy," Wiechert said.
Although he didn't remove himself from the case, Carter told the two sides Monday that he may have a potential conflict of interest because Rubino's wife, Sharon Esterley, worked on Carter's unsuccessful congressional campaign against Rep. Robert K. Dornan (R-Garden Grove) in 1986.
The judge also disclosed that, at the couple's request, he performed the wedding ceremony of Rubino and Esterley, a former spokeswoman for John Wayne Airport. Carter also said that he had dinner with them about three years ago.
Wiechert said he did not know whether he would file a motion to have Carter disqualified from sentencing Citron.
Deputy Dist. Atty. Matthew Anderson said that Carter indicated that he did not feel a need to recuse himself. Anderson said Carter made the same disclosures to the grand jury before it indicted Rubino.
The prosecutor said Carter postponed sentencing because he concluded that Citron and Wiechert "were entitled to the materials relating to Ron Rubino."
Anderson said the judge reversed himself, indicating that "he had a better understanding that there was close relationship" between the accusations against Citron and Rubino, who were both accused of skimming interest from the pool into a county account.
Anderson said Wiechert raised the matter of the sentencing recommendation. He said Wiechert was "speaking out of school" when he contended that the district attorney was set on recommending prison. But Anderson disputed that any such decision had been made: "We have never made a formal recommendation and we won't until the time of sentencing."
The San Diego County Probation Department was asked to prepare the customary pre-sentencing report and to recommend a sentence, after questions were raised about the impartiality of the Orange County Probation Department, which has suffered serious budgetary cutbacks because of the bankruptcy.
Citron pleaded guilty in April to six counts of securities fraud and misappropriation of funds. He faced up to 14 years in prison and $10 million in fines.
In recent weeks, Wiechert has portrayed his client in court filings as an enfeebled bureaucrat with virtually no real education or experience to support his public image as an investment wizard.
Wiechert claimed the ex-treasurer has suffered the increasingly debilitating effects of dementia for the last four years, a period that coincides with Citron's increased borrowing and investment in risky securities.
On Monday, Wiechert told the court that a psychological report on Citron was given to the probation officer supporting his claims that the former treasurer has suffered brain deterioration and memory loss.
Making these disclosures was part of an apparent strategy to convince Carter that Citron should receive a sentence of probation and community service because he did not and could not act alone and was in fact duped by other county officials and financial companies.
Citron has also blamed Merrill Lynch & Co. for getting him to pursue the risky investment strategy that led the loss of $1.64 billion--a charge Merrill strongly denies--and he has said former Assistant Treasurer Matthew R. Raabe was also responsible for the scheme to divert interest from the pool to the county.
On Friday, Wiechert disclosed that Raabe told investigators for the district attorney that Rubino was "the brains" behind the diversion scheme.