Councilman has felony drug conviction

The Superior Court of Santa Clara County outlines the counts handed down against Anthony Dion Bracco in 1990. In it Bracco is given probation for three years, his fines, the court order to wear an electronic monitoring device and the sentence of 45 days i

Gilroy City Councilman and mayoral candidate Dion Bracco has a criminal record that includes a 1990 felony conviction for possession of methamphetamine for sale, according to court records obtained by the Dispatch.

Bracco, now 54, was 32 years old when he pleaded guilty to two counts of meth possession. He was sentenced to 45 days in county jail and ordered to complete 100 hours of community service after reaching a plea deal with prosecutors to avoid prison time, court documents show.

A little more than seven years after the September 1990 conviction, the Santa Clara County Superior Court approved Bracco’s application for a records clearance, which dismisses the case but does not negate Bracco’s obligation to disclose the felony conviction in response to any direct question or application for public office, according to the California Penal Code.

Bracco, a Republican, first ran for Gilroy City Council in 2003 and lost, but won a seat in 2005 and was re-elected in 2010. He’s running for mayor from a  “safe seat” since his council term ends in 2014.

Fourteen officers from the Gilroy and Morgan Hill police departments and a narcotics enforcement team swarmed a two-bedroom apartment at 17855 Garden Way in Morgan Hill where Bracco was living with two housemates on July 14, 1989. What officers found were multiple bags of “white powder” – later determined to be meth – along with a powdery, non-narcotic “cutting agent” that officers testified was a common item found at narcotics-for-sale operations. Officers also found small amounts of marijuana, PCP and a hoard of 13 firearms, according to court documents. Bracco was 31 years old at the time of the arrest, which occurred roughly 15 months before his conviction.

Just hours before the raid, two undercover officers purchased a “plastic bindle” of meth – about a quarter ounce – at the apartment from a woman who also lived there, according to court documents. One officer noticed a “quantity of bindles containing white powder on the kitchen table.” The officers told the woman – identified as Bracco’s roommate, Pamela Foster, in court documents – that “Dion sent us over,” before paying $20 for the baggie and later securing a search warrant, according to a detailed, 55-page transcript of testimonies from an April 11, 1990 preliminary hearing.

Dated Oct. 25, 1990, the document that describes Bracco’s sentencing shows he was convicted of two counts: possession of meth and possession of meth for sale. On the document from the Superior Court of Santa Clara County it states he was placed on felony probation, given jail time and fined. It’s signed by Judge John S. McInerny. You can view the document at left.

Bracco refused repeated attempts to be interviewed for this story over a two-week period which included numerous emails characterizing the story as substantiated and important and requesting an interview. He declined to answer numerous phone calls and messages. In one email he wrote, “… I am over booked through next week.”

City officials, council reacts

Former City Administrator Jay Baksa, who served as the city’s top official from 1983-2007, responded with one word Tuesday when informed of Bracco’s past felony conviction: “Whoa.” “This is the first I’ve ever heard of that,” Baksa said.

Bracco was on the Council dais for the final two years of Baksa’s tenure.

Baksa said a past felony conviction is “pretty important stuff” and is something public officials should disclose. He said elected officials should have to answer whether they have a criminal past when running for office in Gilroy.

“It should be something that’s asked, at least to be consistent with what they ask the other 350 employees,” he said, noting that all city employees must disclose in the application process if they have ever been convicted of a felony.

He added, “Somebody running for public office needs to bare those kind of facts to the public. Be upfront with these kinds of things, so the public knows who they’re voting for.” Baksa said he was surprised word of Bracco’s felony hadn’t surfaced sooner.

“You would think something of that nature would come up during the whole election process,” Baksa said.

Mayor Al Pinheiro, who is repeatedly praised on Bracco’s recently unveiled mayoral campaign election site, had a different reaction. He, too, said he had no idea Bracco had been convicted of a felony, but said the focus should be on Bracco’s recent stint as a city official.

“He’s been a councilmember for seven years. All this is coming out about because there’s going to be a mayor’s race,” Pinheiro said. “I know him as who he is now and what he is now.”

Councilman Perry Woodward – currently Bracco’s only opponent in the mayoral race – said Wednesday that he wanted to talk with Bracco before commenting and that he did not know about Bracco’s past until he heard it “through the rumor mill.”

Woodward said he was still stunned, and that “I’m waiting to see if it’s true. I’m a little skeptical by nature. I’m waiting to see the proof.”

Woodward is a practicing attorney and has served alongside Bracco since 2007. He said he didn’t remember whether or not he was asked to disclose criminal history on paperwork to apply for public office, but did say it could be because he’s never been convicted of a crime.

“Generally speaking, I think people who run for office have to put their criminal issues out there … I think the community should know,” Woodward said. He said he believed based on previous criminal cases he’s worked on that it wasn’t possible for a felon to run for public office. “I’m so taken aback by this. It’s surprising someone could run for election – twice successfully – and that this was never known or discussed.”

“I would think there should be some type of disclosure of being a felon. I can’t believe that there’s not,” he said.

On Wednesday afternoon, the Dispatch called Ron Kirkish who is an outspoken opponent of drug use (he’s the Programs Coordinator for the Northern Region’s Californians for a Drug-Free Youth) and also an ardent supporter of Bracco’s mayoral campaign.

When asked for comment, Kirkish said, “I have nothing to say to you” and hung up.

Gilroy’s City Charter states that “an elective office becomes vacant when the incumbent … is convicted of a felony,” among other reasons including the person dies, is recalled, violates his official duties or resigns, according to Article IV, Section 406 of the charter.

There are no references in the city charter regarding disclosing felonies or other crimes when running for public office, though individuals applying to work for the city are required to disclose whether or not they have ever been convicted of a felony.

Beyond the city’s charter, current state law does not prevent Bracco from holding public office in Gilroy, according to the Santa Clara County District Attorney’s Public Integrity Unit. State residents with felony convictions are eligible to vote and hold public office in California as long as they are not in prison or on parole, the DA’s office stated. Only a few crimes can be punishable by temporary or permanent bans on holding office – for example, an official having a financial stake in contracts he or she approved, the DA’s office said.

It is unclear whether the city’s charter would supersede state law and prevent a convicted felon from holding public office in Gilroy.

Attorney Linda Callon from Berliner Cohen, the firm which represents the city of Gilroy, was out of the office Wednesday for a family emergency, but her colleague Andrew Faber said Wednesday he’s looking into the issue.

Arresting officer: ‘He got the wake-up call’

Two law enforcement officers involved in Bracco’s arrest still have ties to South County. Stan Devlin, longtime and current GPD officer, was a Morgan Hill police officer at the time. Bob Cooke, who retired in December 2011 as a special agent in charge with the Bureau of Narcotic Enforcement, was then a Gilroy police investigator.

Cooke recalled the arrest, referring to Bracco as “just a low-level dealer” at the time of the 1989 raid. He said that Bracco’s arrest and his felony conviction were “common knowledge” within the Gilroy Police Department, but said that he did not know if the subject came up during the Police Officer’s Association political endorsement meetings before Bracco won a seat on the City Council in 2005. The POA endorsed Bracco for a seat, but Cooke had previously moved on from the department.

Cooke said he and Bracco later lived as neighbors two doors down from one another on the same cul-de-sac. He said the two spoke about the arrest “no more than twice,” and Cooke soon believed Bracco had fully turned from his days of “slinging” drugs.

“I think it was a life-changing event for him,” Cooke said.

“He wasn’t glad he got arrested,” Cooke added, “but he was glad he got the wake-up call.”

Mark Crane, one of the undercover officers who was a special agent with the Bureau of Alcohol, Tobacco and Firearms, testified Bracco’s roommate told investigators during the July 14, 1989 raid that she was selling on Bracco’s behalf.

“She said she was selling methamphetamine for Anthony Bracco,” Crane said, according to court transcripts.

Anthony is Bracco’s legal first name. He has three other court cases on file in Santa Clara County – all misdemeanors that have been purged – from 1980, 1983 and 1989, according to the Santa Clara County Superior Court.

Cooke testified to frisking Bracco and finding two items containing a “powder substance” on Bracco the night of the raid, according to court documents. Cooke even pointed out Bracco in court during the hearing when asked by prosecutors to identify him, according to the transcripts.

Cooke testified he waited outside Bracco’s apartment sometime around 8 p.m. on July 14, 1989 as officers forced entry to the residence after seeing a woman toss items out of the second-story apartment’s window. The items included a plastic baggie with a small amount of PCP. Bracco arrived soon after, according to the transcripts.

“I informed Mr. Bracco that a search warrant was being performed at his apartment for controlled substances,” Cooke said, according to the transcripts.

After Bracco denied any involvement in narcotics, a search of his pockets turned up a small tin canister and a small glass vial – both contained “a white powdery substance,” Cooke testified. Bracco was taken into custody at the scene. The substance later tested positive for meth, according to court documents.

Devlin, the Morgan Hill Police Department’s lead investigator who was designated as a “finder” to locate and catalog evidence, testified that, “the entire house was searched.”

Devlin did not return phone calls seeking comment.

Bracco convicted, case later expunged

In all, police seized more than 20 items from Bracco and the apartment as evidence, including: a small plastic bag with .7 grams of meth found in a blue, button-up shirt in the apartment’s master bedroom; a Marlboro cigarette box containing a bag with 1.5 grams of marijuana found in a dresser drawer; a small plastic bag containing .9 grams of meth found in Bracco’s back pocket; 6.7 grams of non-narcotic “cutting agent”; a small plastic bag with white residue found inside a toy car; and a receipt from Orchard Supply Hardware with Bracco’s name, verifying he had access to or lived in the apartment.

“Mr. Bracco was directly involved in a conspiracy at some point to sell methamphetamine,” said Rolanda P. Dixon, a Santa Clara County deputy district attorney who prosecuted the case, according to court documents.

Merrill Zimmershead, Bracco’s private attorney, argued there wasn’t enough evidence to link Bracco to any direct sales of the drugs. Zimmershead testified Bracco was guilty of “possession, perhaps,” adding, “It seems obvious to me there were sales going on in the house.” But Zimmershead pointed to roommate Foster as the true “guilty party” in the case, according to the transcripts. Foster pleaded guilty to three charges associated with the case in November 1989, according to the transcripts. Zimmershead also argued that the amount of drugs seized from the apartment and from Bracco were too small to be evidence of sales.

Superior Court Judge Virginia Mae Days, however, sided with the prosecution, stating there was sufficient evidence to take the case to trial. “First of all, the contraband that was found on the defendant was a sufficient amount that it could have been for sale, even though it was packaged into smaller amounts,” Days said, according to the transcripts. The case never made it to trial, however, as Bracco reached a plea deal with prosecutors four months later.

After several months of hearings, Bracco’s 45-day jail sentence eventually was rescinded for several reasons, according to court documents: There was no room in the county jails, and Bracco had completed his required community service at the Lord’s Table, a meals-for-homeless program run out of the St. Joseph’s Family Center in Gilroy, before he could serve time for the conviction. Bracco was sentenced to 100 hours community service, though a July 25, 1991 letter from his attorney to the Superior Court states he completed as many as 400 hours. In addition, Bracco wore an electronic monitoring bracelet for more than 60 days following his sentencing, according to court documents.

In 1998, six years after starting his own business, Bracco’s Towing and Transport, Bracco successfully filed for a records clearance. Although the clearance changes his conviction to a dismissal, the case can still be used against Bracco as a prior conviction in any future court proceedings, according to the Santa Clara County Adult Probation Department. Individuals with past criminal cases are eligible for a record clearance one year after their convictions if they fulfill their probation term, were not committed to a state prison and “have obeyed the law,” according to a records clearance application.

Bracco, a fourth-generation Gilroyan, has been a staple in the community thanks in part to his towing business. The company has a contract with the California Highway Patrol to conduct towing services following traffic collisions in the Gilroy area. Bracco has served as sergeant at arms and president of the California Tow Truck Association, according to his 2012 mayoral campaign website. He grew up on Gilroy’s east side and graduated from Gilroy High School in 1976.

Bracco first served the City of Gilroy as an appointed member of the Planning Commission in 2003, according to City Council minutes from Dec. 15, 2003. According to the city, it’s the first reference regarding Bracco serving in an appointed position.

Bracco was once the city’s mayor pro tempore and has served as a board member for the Open Government Commission, South County Regional Wastewater Authority, Santa Clara County Library Joint Powers Authority, Gilroy Gardens Family Theme Park, Gilroy Gang Task Force, Gilroy Compassion Center and Gilroy Planning Commission, according to his website.

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