Opinion
Page 589a
144 Cal.App.4th 589a __ Cal.Rptr.3d __ MASSEY HARAGUCHI, Petitioner, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent. THE PEOPLE, Real Party in Interest. 2d Civil No. B191161 California Court of Appeal, Second District, Sixth DivisionNovember 1, 2006Super. Ct. No. 1203536, Santa Barbara County
ORDER MODIFYING OPINION
THE COURT:
It is ordered that the opinion filed herein on October 5, 2006 (143 Cal.App.4th 846; 49 Cal.Rptr.3d 590), be modified as follows:
1. On page 8 [143 Cal.App.4th 853, advance report, 4th full par., line 6], line 5 of the second full paragraph delete the citation "(Id., at p. 478) and insert in its place: (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr. 902].)
2. On page 9 [143 Cal.App.4th 854, advance report, 3d full par., fine 13], line 11 of the second full paragraph after the word "income." insert the following: where such will inure to the detriment of the employer. The sentence will then read: No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income where such will inure to the detriment of the employer.
3. On page 10 [143 Cal.App.4th 854, advanced report, 3d full par., line 18], line 2 after the citation "[64 L.Ed.2d 182, 193, 100 S.Ct.1610])" add as footnote 4 the following footnote, which will require renumbering of all subsequent
4. The title of this case in the superior court shows whose rights are being litigated: the People of the State of California and the defendant, Massey Haraguchi. The reader will search in vain for a holding or discussion of the First Amendment rights of a prosecutor to write a book. A prosecutor's personal rights, if any, are irrelevant to the proper resolution of the only dispute which we have decided, i.e. should this particular prosecutor be recused from further participation in this criminal case. (Compare Garcetti v. Ceballos (2006) ___ U.S. ___ [164 L.Ed.2d 689, 126 S.Ct. 1951].) "[C]ases are not authority for propositions not considered. (Citations.)" (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [119 Cal.Rptr.2d 903].)
Here there was no First Amendment issue tendered for our resolution. We will decide such a dispute when we are called upon to do so. " ' "Wise
Page 589b
adjudication has its own time for ripening." (Citations.)' " (E..g. People v. Duran (2004) 124 Cal.App.4th 666, 669 [21 Cal.Rptr.3d 495.])
There is no change in judgment.