Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. F445995 Teresa Estrada-Mullaney, Judge.
Edmund G. Brown Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Robert M. Snider, David F. Glassman, Deputy Attorneys General, for Plaintiff and Appellant.
Paul M. Phillips for Defendant and Respondent.
PERREN, J.
Billy Gene Mannon was in court awaiting his preliminary hearing on charges of child molestation. The prosecutor determined that the case could not be proved as a felony and asked that it be set for trial as a misdemeanor. Realizing that the case would not conclude as expected, Mannon exclaimed, "Can we just get this thing done?" and added, " I'm telling you this, I want a rope around that dude's neck right there." Although Mannon was ultimately acquitted of the child molestation charge, the prosecution charged him with new felony crimes based on his courtroom statement.
Mannon moved under Penal Code section 1424 to recuse the entire 35-member office of the San Luis Obispo District Attorney. In light of the highly deferential standard of review (People v. Gamache (2010) 48 Cal.4th 347, 366, fn. 5), there is no basis for us to conclude that the recusal order amounts to an abuse of discretion. Accordingly, we affirm.
All further undesignated statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
In March 2010, Mannon was charged by felony complaint in case number F444743 with annoying or molesting a child under 18 years of age (§ 647.6, subds. (a)(1) & (c)(2)). The crime was charged as a felony based on the allegation that Mannon had a prior conviction under section 288 for committing a lewd act on a child under 14. Mannon was actually convicted of forcible oral copulation of an adult, which is not among the crimes that elevate a section 647.6 charge to a felony.
When Mannon was convicted in 1986, section 288 could be violated either by committing a lewd act on a child younger than 14 or by committing forcible oral copulation. The crime of forcible oral copulation is now codified in section 288a. A prior conviction under that section does not elevate a section 647.6 charge to a felony unless the crime involved a minor under 16 years of age. (§ 647.6, subd. (c)(2).) It is undisputed that Mannon's victim was an adult.
Deputy District Attorney Greg Devitt was assigned to prosecute the case. When Mannon's attorney informed Devitt of the charging error, Devitt told him that matter would proceed until he received the record of Mannon's conviction from the Department of Justice.
Due to the nature of the charge and Mannon's status as a registered sex offender, the preliminary hearing was to be televised by a local news station. A reporter from the local newspaper was also present. At the hearing, Mannon was prepared to establish that he was not a convicted child molester as had been reported in the news. He was also planning to call two eyewitnesses to establish that he was not the individual who had committed the act giving rise to the section 647.6 charge, but rather was a victim of mistaken identity as a result of the erroneous reporting of his sex offender status. According to Mannon's attorney, Mannon was also under the impression that he would be released from custody on his own recognizance at the end of the hearing.
When the matter was called for hearing on April 6, 2010, Devitt moved to amend the complaint by removing the prior conviction allegation, which thereby reduced the charged crime to a misdemeanor. Devitt represented to the court that he had only recently received verification from the Department of Justice that respondent had not been convicted of a sex crime involving a minor. When the court asked Mannon's attorney if he wished to be heard, counsel responded, "Well, we can't oppose that since it's accurate because it's what we've been saying all along that he did not have a prior that involved a minor." Counsel continued, "the effect of that motion and the court granting it is we can't have the preliminary hearing today since misdemeanors don't get preliminary hearings. We were prepared today and believed that we would have prevailed at the preliminary hearing based on substantial evidence that there was misidentification in this case." After the court granted Mannon's request to speak with his attorney, counsel added, "I still wish we could have had the preliminary [hearing] today, and we'd demand a speedy trial since I don't see there's any way he cannot prevail." The court asked Mannon whether he was agreeable to a trial date of May 4. At that point, Mannon looked in the direction of Devitt and said, "Can we just get this thing done? I'm telling you this, I want a rope around that dude's neck right there."
The original reporter's transcript of the hearing, which was offered in support of the complaint filed in this case, erroneously states that Mannon said, "If I ever find this dude, I'm going to put a rope around this dude's neck." At the preliminary hearing, the parties stipulated that Mannon can be heard on the video actually saying, "I want a rope around that dude's neck right there."
A jury subsequently acquitted Mannon of the misdemeanor section 647.6 charge. In the meantime, Mannon's televised comment led the San Luis Obispo District Attorney to file a new felony complaint charging him with threatening a state official (§ 76, subd. (a)), resisting an executive officer (§ 69), and making a criminal threat (§ 422). The complaint also alleges that Mannon's prior conviction of forcible oral copulation under section 288 qualifies as both a strike (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)) and a serious felony (§ 667, subd. (a)).
Mannon thereafter filed the recusal motion that is the subject of this appeal. In support of the motion, Mannon's attorney submitted a declaration alleging among other things that Mannon's comment had been "taken out of context" and that "the felony charges contained in the instant case are the result of [Mannon's] frustration with the prosecution's handling of his case in F444743. Deputy District Attorney Greg Devitt is the named victim in the instant case as well as the staff member/employee of the Office of the District Attorney of San Luis Obispo County which is the elected public official alleged in count one." Counsel asserted that the facts and circumstances at issue gave rise to "an undeniable and disabling conflict of interest" that warranted recusal of the district attorney's office. The prosecution opposed the motion, arguing among other things that Mannon had not established the sort of disabling conflict that would require a recusal of the entire 35-member district attorney's office.
The parties stipulated that the district attorney's office has 34 full-time attorneys and one part-time attorney.
At the outset of the hearing on the motion, the court issued a tentative ruling in favor of Mannon. Before hearing further argument, the court found that the facts of the case "appear to fall squarely within the reasons that the recusal was found appropriate" in People v. Conner (1983) 34 Cal.3d 141 (Conner). After hearing further argument, the court stated: "I believe that the facts support the recusal of the entire District Attorney's office in this case based on the facts that we have." The court also noted that trying the case in a different branch court was not possible because "[t]his courthouse is the only courthouse in this county that handles felonies." At the conclusion of the hearing, the court ruled as follows: "I find pursuant to Penal Code section 1424 the motion to recuse the entire District Attorney[']s office in this case is appropriate, and I do find that the two-part test of that Penal Code section has been met. One, there is a conflict of interest, and, two, the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during the criminal proceedings in this case. Accordingly, the motion to re[cus]e is granted, and the Attorney General's office shall proceed as the prosecutor against [respondent.]" The People timely appealed.
DISCUSSION
The People contend the court erred in granting Mannon's motion to recuse the San Luis Obispo County District Attorney's Office from prosecuting him on the charges related to the allegedly threatening comment he made during the televised court proceeding in case number F444743. We agree with Mannon that the court granted the motion in the proper exercise of its judicial discretion under section 1424.
"The recusal of an entire prosecutorial office is a serious step, imposing a substantial burden on the People, and the Legislature and courts may reasonably insist upon a showing that such a step is necessary to assure a fair trial." (People v. Hamilton (1989) 48 Cal.3d 1142, 1156.) "Section 1424 sets out the standard governing motions to recuse a prosecutor: such a motion 'may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.' (Id., subd. (a)(1).) The statute 'articulates a two-part test: "(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?"' [Citations.]" (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) "[A] motion to recuse is directed to the sound discretion of the trial court, and its decision to grant or deny the motion is reviewed only for an abuse of discretion. [Citations.] The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Ibid., fns. omitted.) Our Supreme Court has recently recognized that "[g]iven the deferential standard of review applicable to rulings on recusal motions, in many cases the record may contain sufficient evidence to support either a grant or a denial, and an appellate court may be precluded from disturbing either ruling." (People v. Gamache, supra, 48 Cal.4th at p. 366, fn. 5.)
The record supports the court's decision to grant the recusal motion. The People's argument to the contrary rests on the premise that the court's ruling is based solely on the size of the district attorney's office and the fact that the alleged victim is a member of that office. The court's findings, however, are based on the particular facts and circumstances giving rise to the prosecution for which Mannon sought recusal. In light of the deferential standard of review, those facts and circumstances can be characterized as follows: Due to an apparent case of mistaken identity, Mannon was wrongfully accused of annoying or molesting a teenage girl. He was also publicly labeled a convicted child molester and charged with a felony based on his status as a registered sex offender, even though his record demonstrated that the prior crime of which he was convicted did not involve a minor. Then, when presented with the opportunity to correct these injustices in a televised preliminary hearing, the assigned prosecutor eliminated Mannon's right to such a proceeding by dropping the felony charge. It was at that point that Mannon could be heard stating that he "want[ed] a rope around" the deputy district attorney's neck. Based on this comment, which was publicly disseminated through the local news, the district attorney made the decision to not only prosecute Mannon on new felony charges, but also allege the incorrectly characterized prior conviction as both a strike and a serious felony. It is undisputed that the victim is a member of the 35-attorney office which conducts all felony prosecutions in the county.
Based on these facts, it cannot be said that the trial court abused its discretion in finding that the San Luis Obispo District Attorney's Office has a conflict of interest substantial enough to render it unlikely that Mannon would receive a fair trial. In Conner, the Supreme Court affirmed a trial court order recusing an entire 25-member district attorney's office from prosecuting a defendant charged with escape and assault on a deputy sheriff. In the course of the crimes, the defendant allegedly pointed a gun at a deputy district attorney (Braughton) and fired in the deputy's direction after he ran away. (Conner, supra, 34 Cal.3d at p. 148.) In affirming the recusal order, the court reasoned among other things that "Braughton is inextricably involved in this case. He disclosed that involvement to a substantial number of his fellow workers. Because the felony division of the DA's office is composed of about 25 attorneys, we have no difficulty in assuming that there is a commendable camaraderie which exists among these officials. It is reasonable to conclude that an apparent threat to one deputy coupled with his witnessing the serious injury actually inflicted on the deputy sheriff during the same course of events may well prejudice the coworkers of Braughton and the deputy sheriff. While it may be difficult, if not impossible, to prove that a bias of the DA's office will definitely affect the fairness of a trial, the trial court is in a better position than are we to assess the likely effect of the shooting incident. We will not disturb the court's conclusion that the DA's discretionary powers exercised either before or after trial (e.g., plea bargaining or sentencing recommendations), consciously or unconsciously, could be adversely affected to a degree rendering it unlikely that defendant would receive a fair trial." (Id. at pp. 148-149.)
Here, as in Conner, the identified victim is a member of a relatively small district attorney's office. Although there is no affirmative evidence that the deputy has discussed the case with any of his coworkers, the alleged crime was televised. Given the sensational nature of the molestation charge and the obvious public interest in its resolution, it is reasonable to infer that the televised incident has been the subject of discussion not only throughout the 35-member office, but the general community as well. Moreover, the trial judge—who identified herself as a former member of the district attorney's office—was certainly in a superior position to determine the extent to which such a matter would affect the office as a whole. Among other things, any deputy assigned to prosecute the case would necessarily be called on to argue the credibility of a colleague. (See People v. Jenan (2006) 140 Cal.App.4th 782, 793 [affirming order granting recusal motion where "another member of a relatively small district attorney's office" could be called on "to argue to a jury the credibility of two colleagues who witnessed the charged crimes"].) It is also clear that Mannon will defend against the charges by calling into question the handling of the charges that resulted in his acquittal as well as the decision to prosecute him for a comment he allegedly made out of frustration in the course of those proceedings. There is thus no basis for us to disturb the court's conclusion that the district attorney's discretionary decision could be adversely affected such that Mannon would not receive a fair trial.
The People's attempts to undermine the court's reliance on Conner are unavailing. To the extent they purport to distinguish the case on the ground that the alleged crimes in that case were "harrowing, " no such showing is necessary to justify a recusal order. Conner did not purport to establish a list of factors that must be met in every case. Moreover, Devitt's testimony at the preliminary hearing undermines any suggestion that the charges here are not sufficiently serious. Also unavailing is the People's reliance on cases affirming the denial of recusal motions, particularly those involving the Los Angeles District Attorney's Office, which is the largest prosecutor's office in the country. (See, e.g., Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 202; see also People v. Jenan, supra, 140 Cal.App.4th at pp. 792-793 [recognizing limited value of precedent affirming the denial of recusal motions in reviewing orders granting recusal].) The People's citation to Trujillo v. Superior Court (1983) 148 Cal.App.3d 368, is not particularly helpful because (1) the court in that case affirmed the denial of a recusal motion; (2) the district attorney's office of which the victim was a member had 65 to 70 felony prosecutors, and the attorney signed to prosecute the case worked in a different unit; and (3) there was "minimal" communication about the event upon which the charges were based. (Id. at pp. 370-373.)
In distinguishing the case from Conner, the court in Trujillo characterized the facts—which involved the defendant clawing the victim's face and "strangling [him] with his own necktie"—as "neither harrowing, nor particularly dramatic." (Trujillo, supra, 148 Cal.App.3d at pp. 370, 373.) Regardless of whether we agree with this characterization, we have noted that Conner did not create a litmus test of factors that must be present in order to grant a recusal motion. In analogizing the case to Conner, the court in Trujillo also emphasized that "[w]e consider it significant that in Conner the trial court recused the district attorney's office, while here the trial court refused to recuse. Conner emphasized that our role is only to review the trial court decision to determine whether it is supported by substantial evidence and also explained that its decision was based upon the combined effect of various factors present there. [Citation.]" (Id. at p. 373.) As the court made clear in Conner, the issue is not whether any one factor is sufficient to render it unlikely that the defendant will receive a fair trial, but rather whether "the aggregate effect" of the particular facts and circumstances at issue "is sufficient to sustain the trial court's ruling." (Conner, supra, 34 Cal.3d at p. 149.)
People v. Hernandez (1991) 235 Cal.App.3d 674, in which the court reversed an order recusing the entire Los Angeles County District Attorney's Office, is factually inapposite because no member of the office was a victim of the charged crimes and there was no evidence that any information about the case "had permeated, or would permeate, the entire 900-member Los Angeles County District Attorney's office." (Id. at p. 680, fn. omitted.) The recusal order reversed in People v. Cannedy (2009) 176 Cal.App.4th 1474, also involved a substantially larger office with multiple branches (the 151-member Alameda County District Attorney's Office) and was based on the mere "assumption" that several support-staff members of the office would be called as witnesses. (Id. at pp. 1480-1491.)
Finally, the People argue that "a criminal defendant should not be encouraged to engage in criminal misconduct in order to obtain automatic disqualification of a prosecutorial agency, " and quote another court's observation to that effect. (Millsap v. Superior Court, supra, 70 Cal.App.4th at p. 203.) We are confident, however, that the statement giving rise to Mannon's prosecution on new felony charges was not motivated by a desire to disqualify the district attorney's office from prosecuting him on the misdemeanor molestation charge.
In reversing an order recusing the entire Los Angeles District Attorney's Office from prosecuting a defendant charged with soliciting the murder of two prosecutors assigned to his case, the court reasoned among other things that "[i]f it were possible to recuse the entire office by fomenting some kind of threat against the trial deputy, defendants bent upon delay or other obstruction, or just wanting to be rid of an effective prosecutor, would have the means to accomplish that objective. They shall not receive it from this court." (Millsap v. Superior Court, supra, 70 Cal.App.4th at p. 203.)
We are also confident that our decision will not encourage other defendants to threaten their assigned prosecutor as a means of seeking recusal. In People v. Avila (2011) 191 Cal.App.4th 717, we rejected the defendant's argument that the trial court violated his right to counsel of his choice by appointing conflict counsel to represent him in a competency proceeding after he threatened to kill his public defender. In addressing the defendant's claim that our ruling could be used by defendants seeking to replace their appointed counsel after losing a Marsden motion, we characterized that possibility as "far-fetched" and stated: "We doubt that a defendant would commit a new crime and risk a new prosecution just to have counsel relieved in the former case. This would be the acme of foolishness. And even if this is the case in the future, the possibility or probability of a consecutive sentence for the new threat should be a sufficient deterrent." (Avila, at p. 725.) The same reasoning applies here.
(People v. Marsden (1970) 2 Cal.3d 118.)
The order granting Mannon's recusal motion under section 1424 is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.