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People v. Cooper

Court of Appeals of California, Third Appellate District, Lassen.
Nov 21, 2003
No. C043491 (Cal. Ct. App. Nov. 21, 2003)

Opinion

C043491.

11-21-2003

THE PEOPLE, Plaintiff and Appellant, v. AARON COOPER, Defendant and Respondent.


This is an appeal by the People following a ruling by the Lassen County Superior Court recusing that countys entire district attorneys office from prosecuting the charges against defendant Cooper. We shall reverse the order.

This appeal is authorized by Penal Code sections 1235 and 1424, subdivision (a)(2).

PROCEDURAL FACTS

Following the filing of an information charging defendant Aaron Cooper with battery on a correctional officer by an inmate (Pen. Code, § 4501.5) with an allegation of two strikes (§ 667, subds. (b)-(i)), his appointed counsel was relieved and Richard Healy was appointed to represent defendant. Healy represented defendant until Healy accepted a position with the Lassen County District Attorneys Office and was relieved. Charles Sambol represented defendant, but he too was relieved and Thomas Clute, present counsel, was appointed.

Hereafter references to undesignated sections are to the Penal Code.

Clute filed a motion to recuse the Lassen County District Attorneys Office from prosecuting the case. The grounds for the motion were that in the course of Healys representation he had obtained confidential information from defendant which both "creat[ed] a risk of disclosure with respect to that information" and raised "a reasonable possibility that the DAs office may not, or has not exercised its discretionary function in an evenhanded manner . . . ."

The hearing on the motion proceeded on the unsworn statements of Clute, District Attorney Robert Burns, and Deputy Attorney General Justain Riley. Clute argued that because Healy had obtained confidential information from defendant, and because the Lassen County District Attorneys Office had only four attorneys housed in small quarters, Healy might inadvertently disclose some of the confidential information by being overheard speaking of it on the phone or by body language such as facial expressions.

Clute attached to his motion the following verified declaration which he claimed stated facts showing a conflict of interest by the Lassen County District Attorneys Office:
"I, Thomas A. Clute, declare as follows:
"1. I am the attorney of record for defendant, Aaron Lyndale Cooper, in the above-entitled case and licensed to practice before all of the courts of the State of California.
"2. The following facts exist that create a conflict of interest between the Office of the District Attorney of Lassen County that would render it unlikely that defendant would receive a fair trial:
"A. On September 26, 2002, I accepted the appointment to represent Mr. Cooper in this matter with the understanding that I would possibly be committed to a jury trial in a case in Plumas County through the middle of January 2003. This appointment was undertaken with the understanding that I would have limited time to devote to the Lassen County matter.
"B. On September 26, 2002, I obtained Mr. Coopers file from the court clerk and made personal contact with attorney C. M. Sambol, who had no independent recollection of the status of any of the motions filed or follow-up conducted.
"C. On October 16, 2002, after reviewing the complete file in this matter, I appeared in court and advised the Court that the jury trial in Plumas County was to start on October 29, 2002 and go through the middle of January 2003. I also informed the Court that I would need all of the transcripts and minute orders from the previous proceedings due to the fact that the file contained minimal information.
"D. As of the date of this motion, I have not been able to discuss this case with attorney Richard J. Healy nor have I received the majority of the transcripts or minute orders. Mr. Cooper has expressed concern as to Mr. Healys current employment.
"I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
"Date: December 24, 2002 Respectfully submitted,
"Thomas A. Clute, Attorney for Defendant Aaron Cooper"
As is readily apparent, the declaration fails to establish any conflict of interest.

Burns stated he knew when he hired Healy that because of "ethical considerations" he would "have to pick up cases that [Healy] was working on as a defense attorney." Burns stated Healy was not handling the defendants case as it would be inappropriate for Healy to do so, and that he (Burns) had not discussed the facts of the case with Healy.

Deputy Attorney General Riley suggested notwithstanding the "small office" of the district attorney, an order could be issued by the court sufficient to protect defendant from any "ethical wrong."

The court observed it had "extensive dealing" with Healy and found "him always to be ethical and straightforward and honest"; however, the court concluded, because of the seriousness of defendants case, coupled with Healys having obtained confidential information from defendant and the district attorneys office being "so small", it was necessary to recuse the entire district attorneys office.

DISCUSSION

Section 1424 governs motions seeking to recuse a district attorney from prosecuting a case, and provides in relevant part: "Notice of a motion to disqualify a district attorney from performing an authorized duty . . . shall contain a statement of facts setting forth the grounds for the claimed disqualification and the legal authorities relied upon by the moving party . . . . The 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. . . ."

"[W]hether the prosecutors conflict is characterized as actual or only apparent, the potential for prejudice to the defendant — the likelihood that the defendant will not receive a fair trial — must be real, not merely apparent, and must rise to the level of a likelihood of unfairness. Thus, section 1424 . . . does not allow disqualification merely because the district attorneys further participation in the prosecution would be unseemly, would appear improper, or would tend to reduce public confidence in the impartiality and integrity of the criminal justice system." (People v. Eubanks (1996) 14 Cal.4th 580, 592, italics in original; see also People v. McPartland (1988) 198 Cal.App.3d 569, 574 ["recusal cannot be warranted solely by how a case may appear to the public"].)

As a reviewing court, our function is to determine whether there is substantial evidence to support the trial courts factual findings, and based upon those findings whether the trial court abused its discretion in granting the motion. (People v. Eubanks, supra, 14 Cal.4th at p. 594.)

People v. Lopez (1984) 155 Cal.App.3d 813, is instructive. There, attorney Smith had represented Lopez through the preliminary hearing, but had been replaced by new counsel at Lopezs arraignment in the superior court. Smith later joined the district attorneys office and, the following day, Lopez filed a motion to recuse the entire 10-person Imperial County District Attorneys Office. (Id. at p. 819.)

The evidence at the hearing on the motion was based on declarations by Smith and Wingfield, the prosecutor in the case. Smith declared he had not, and would not, discuss Lopezs strategy with anyone in the district attorneys office, nor had he, nor would he, divulge any client confidences or cooperate in the prosecution of the case. Wingfield declared he was the prosecutor in the case, he had not communicated with Smith regarding the case, and he neither had nor would seek any cooperation from Smith in prosecuting the case. (People v. Lopez, supra, 155 Cal.App.3d at p. 819.)

Additionally, a deputy attorney general informed the court that Smith occupied an entry-level position, that Smith did not participate in evaluating prosecutorial personnel or participate in formulating prosecution policy, and that Smiths assignment was to handle the district attorneys calendar in the municipal court. Lopezs counsel stated that he had "`no information or even a belief" that Smith had divulged privileged information about Lopezs case to Wingfield. (People v. Lopez, supra, 155 Cal.App.3d at p. 819.)

In upholding the trial courts denial of the recusal motion, the appellate court observed the following: "Notwithstanding the probable intimacy of the 10-person DAs office, there was no suggestion or evidence that any leak in the wall of silence between Smith and his colleagues had occurred or would occur. Moreover, the court itself expressed its complete confidence in Smiths integrity. That assessment, made from a vantage point close to the circumstances and people involved, is entitled to our deference. [Citation.] Further, the court had no reason to doubt the applicable presumptions that Smith had not and would not violate his professional obligation to protect Lopez[s] confidences [citation] and that Smith would advise the court if any circumstances developed which threatened betrayal of those confidences. [Citation.] The court also concluded there were no other facts related to Smiths position or duties in the DAs office which suggested or indicated any possibility that Smiths presence in that office might improperly affect the prosecution of Lopez[s] case. [Citations.]" (People v. Lopez, supra, 155 Cal.App.3d at p. 827.) Thus, the appellate court concluded that the trial court could reasonably have found that vicarious disqualification of the district attorneys office was not necessary to protect any confidential information. (Ibid.)

In the present case, there was no suggestion or evidence Healy had or would intentionally disclose any confidential information he obtained from defendant. Indeed, all indications were to the contrary, with the court finding Healy "to be ethical and straightforward and honest." District Attorney Burns stated he had not and would not discuss the case with Healy and, for ethical reasons, Healy would not be prosecuting the case. Even defendants attorney, Clute, stated, "[I]ts not that I dont trust Mr. Burns and/or Mr. Healy to not talk about this . . . ."

Thus there was no concern about an intentional violation of Healys ethical duty not to prejudice defendants case. The sole concern asserted by defendant, and that adopted by the court as the basis for its ruling, was the potential for inadvertent disclosure of confidential information due to the close quarters of the district attorneys office. Since such a bare potential could adequately be guarded against, or even eliminated, as suggested by the deputy attorney general, by an order from the court prohibiting any discussion of the facts of the case by Healy or in his presence, there was no need to recuse the entire district attorneys office. Consequently, the court erred in granting the motion.

DISPOSITION

The Lassen County Superior Courts order granting defendants motion to recuse the Lassen County District Attorney from prosecuting this case is vacated. The matter is remanded to the Lassen County Superior Court for further proceedings.

We concur: SIMS, Acting P.J. and MORRISON, J.


Summaries of

People v. Cooper

Court of Appeals of California, Third Appellate District, Lassen.
Nov 21, 2003
No. C043491 (Cal. Ct. App. Nov. 21, 2003)
Case details for

People v. Cooper

Case Details

Full title:THE PEOPLE, Plaintiff and Appellant, v. AARON COOPER, Defendant and…

Court:Court of Appeals of California, Third Appellate District, Lassen.

Date published: Nov 21, 2003

Citations

No. C043491 (Cal. Ct. App. Nov. 21, 2003)