PEOPLE v. VASQUEZ

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Andrew VASQUEZ et al., Defendants and Appellants.

No. B159379.

Decided: September 29, 2004

Nancy J. King, under appointment by the Court of Appeal, San Diego, for Appellant Andrew Vasquez. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Appellant Anthony Fregoso. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.

A tagging crew member was stabbed to death in retaliation for having disrespected a female associate of a rival tagging crew.   After the first trial ended in a hung jury the second jury convicted the defendants of second-degree murder.   The jury also found true the allegations the defendants personally used deadly weapons during the commission of the offense.

The defendants raise a variety of issues on appeal.   We find error in failing to recuse the district attorney's office but conclude it was harmless on review after judgment.   We conclude the claim of Wheeler1 error lacks merit.   We further find any error in admitting, as well as excluding, evidence of gang membership harmless.   Finally, we find error in providing an outdated instruction on the intent element for a conviction of voluntary manslaughter also to be harmless, and reject the defendants' other claims of instructional error.   Accordingly, we affirm.

FACTS AND PROCEEDINGS BELOW

P.A.L. and C.N.E. are local tagging crews.2  They are also rivals.   Both female and male members of these groups often engaged in after-school fistfights.   Appellants, Andrew Vasquez and Anthony Fregoso, are members of P.A.L. The homicide victim in this case was a C.N.E. member.

On March 20, 2000, Cynthia Mendez left Fairfax High School at 3:00 p.m. and walked to the bus stop.   Armando Ayala, the victim in this case, approached Cynthia accompanied by two other males.   Armando said, “Fuck you, Bitch.”   One of the young men sprayed Cynthia's face with mace.   As she covered her face, the males started hitting her in the head.   She saw Armando hit her once before covering her face again.   The men hit and kicked Cynthia as many as six or seven times before leaving on the bus.   As Armando left he told Cynthia, “Bitch, don't fuck with C.N.E.”

Cynthia went to her job at her mother's cell phone and pager business.   Later in the day Fregoso came into the store and Cynthia told him about the beating.

The day after Cynthia's beating Armando and several other students were standing outside the main gate of the school after class.   The students noticed Vasquez and Fregoso standing on the opposite side of the street across from the school gate.   The students noticed them because they were already outside when school let out and were not wearing school uniforms.

Armando left the group of students and started walking toward Fairfax Boulevard.   When Armando started walking Fregoso tracked him from across the street.   Fregoso then crossed over and positioned himself in front of Armando to cut him off.   Vasquez crossed the street diagonally in a sort of crouching stance and approached Armando from behind.   The student witnesses testified they saw Vasquez holding either a knife or something in his hand as he approached Armando.

Hideshi Valle was one of the students standing at the school gate. Armando was her best friend.   She recognized Vasquez and Fregoso as members of the rival P.A.L. tagging crew.   When she saw Vasquez approach with the knife, she yelled out to Armando to “watch out.”   Almost instantaneously, Armando turned around and sprayed pepper spray as Vasquez in a side-arm motion plunged his knife into Armando's chest.3  The two men fell to the ground with the blow.   Fregoso had a baseball bat.   He raised his arm as if preparing to hit Armando but then stopped.

Valle ran to Armando's aid.   She pulled him up and the two ran back onto the school campus and into the principal's office.   Fregoso helped Vasquez up and the two men chased Armando onto the school grounds.   Vasquez ran up to the principal's office but then retreated.   As Vasquez and Fregoso left the school one of the students, Melissa Garcia, challenged them to a fight by asking, “Where you from.”   Fregoso yelled out something like “P.A.L.,” or “It's a P.A.L. thing.”   They also said something like “because he hit a girl the day before.”   Fregoso and Vasquez threw P.A.L. hand signs as they walked down the street away from the school.

Armando died from the stab wound which had severed an artery as it penetrated his lung.   The knife wound was one inch wide and four to five inches deep.

An information charged Vasquez and Fregoso with Armando's murder.4  The information alleged Vasquez personally used a knife and Fregoso personally used a deadly weapon (a baseball bat) in the commission of the offense.5

The first jury could not reach a verdict.   The court ultimately declared a mistrial.

Separate juries retried Vasquez and Fregoso.   Neither testified at their second trial.   The separate juries found each of them guilty of second-degree murder.   Both juries also found true the allegations they had personally used a deadly weapon in the commission of the offense.   The court sentenced both Vasquez and Fregoso to the statutory term of 15-years-to-life, plus an additional year each on the deadly weapon enhancement allegations found true by the juries.

They appeal from the ensuing judgments of conviction.6

DISCUSSION

I. ERROR IN DENYING VASQUEZ'S MOTION TO RECUSE THE DISTRICT ATTORNEY'S OFFICE WAS NOT PREJUDICIAL.

Vasquez and Fregoso contend the trial court erred in failing to grant their motion to recuse the district attorney's office.

Judge Norman Shapiro was assigned to oversee the first trial.   Just before jury selection defense counsel orally moved to recuse the district attorney's office.   Counsel pointed out Vasquez's stepfather had been a prosecutor with the district attorney's office for many years.   Vasquez's mother had been an administrator in the same office for then 13 years.   Apparently, the district attorney had initially requested the attorney general's office to take over prosecution of the case.   When the attorney general declined the request, the district attorney assigned a prosecutor who worked in the same office as Vasquez's parents, but claimed to be unfamiliar with either of them.

Vasquez's counsel initially perceived no discrimination in the district attorney's handling of the case.   However, he became concerned after learning of the prosecutor's reasons for declining defense counsels' offer of a bench trial.   At the hearing on his oral motion Vasquez's counsel explained the basis for his motion.   After discussing the matter with defense counsel for Fregoso he spoke to the prosecutor and proposed waiving jury and having the case heard by the court.   The prosecutor's initial response was to state she was willing to take the matter up with her supervisor.   However, before discussing it with her supervisor the prosecutor spoke to Vasquez's counsel again.   She told him she did not feel comfortable discussing the matter of waiving jury with her supervisor, “because she felt she didn't want to do anything that could make it look like there had been any kind of favor toward Mr. Vasquez because of his father being [] in the district attorney's office.”

Vasquez's counsel explained the prosecutor's response was the first indication, and demonstrable evidence, Vasquez was being treated differently from how some other defendant would be treated simply because his stepfather was a prosecutor in the district attorney's office.   Counsel opined if the attorney general's office was prosecuting the case, any attorney with that office would have gladly welcomed the opportunity for a bench trial.

The court interjected a few comments before permitting the prosecutor to respond.   Judge Shapiro commented, “I like to think of myself as kind of in the middle of things and that I don't favor the district attorney, and that on some close issues, I have ruled for the defense.”   The court noted he is considered a judge who, “might be inclined to give a little edge on some issues to the defense.”

Vasquez's counsel responded if the prosecutor's motive for declining a bench trial was purely the court's inclination to rule for the defense then he would have no problem.   He stated it was instead the prosecutor's other motivations and influences which led him to believe the prosecutor was treating Vasquez differently, and all because of his familial connections to the district attorney's office.

The prosecutor replied, “Well, first of all, I have done trials in front of Your Honor, and I have always gotten what I considered to be a very fair trial.  [¶] Part of my concern is, also, your prior career with the district attorney's office.   And my victim['s] family is a little upset because I'm the third lawyer on this case, and they were very concerned that perhaps we were not pursuing things.   So-

“THE COURT:  That's from the victim's standpoint. [¶][¶]

“[THE PROSECUTOR]:  So their position and my evaluation, also, the evidence is that this is a first degree murder;  I did not wish to put this court in a position of having its integrity questioned regarding a ruling that would either be something that perhaps we didn't feel the evidence showed.   [¶] And, also, I wanted to insure that there was no appearance of any improprietary [sic] on the part of our office in handling this.”

In reply, Vasquez's counsel made clear his concern was over the prosecutor's fear of creating an appearance of impropriety in the victim's family's eyes.   Counsel pointed out, “That means there is an extra layer that's being looked through in terms of him, that that's what would cause me to make this motion.”

The court denied the defense motion to recuse the district attorney's office.   In so ruling the court commented, “I think what was the most important part of [the prosecutor's] remark was that, based on this court's long experience as a prosecutor and with this particular office, that it wasn't necessarily the current state of the case, but rather the court's position, that she felt it would be-well, she didn't feel it would be wise to take the particular approach suggested by the defense.  [¶] And based on that, I find that an adequate reason for the way she proceeded on the matter, or you might say did not proceed on the matter.   And, therefore, that is really the key basis for the court's ruling.”

Jury trial began before Judge Shapiro in March 2001.   Jury deliberations continued for more than a week, interspersed with readback of witness testimony and jury questions.   Finally, the court found the jury was hopelessly deadlocked and declared a mistrial.   Apparently, the jury split as follows:  two voted for first-degree murder, six for second-degree murder, three for voluntary manslaughter and one for not guilty.

The case was reassigned to Judge Larry P. Fidler.   Prior to retrial Vasquez filed a formal motion to recuse the district attorney's office.   His motion included the information regarding the prosecutor's reasons for declining a bench trial before Judge Shapiro.   In addition, Vasquez's counsel noted the prosecutor had refused to consider a plea bargain for anything less than second-degree murder and was still aggressively pursuing her theories of first-degree murder of premeditation and lying-in-wait.   Counsel stated the prosecutor refused to consider a proposed plea bargain to the lesser crime of voluntary manslaughter.   He argued this was so despite the ambiguous facts of appellants' intent, and despite a hung jury in the first trial, whose members obviously had wide-ranging views on their level of culpability.   Counsel also noted because the district attorney's office was in the same building numerous deputy district attorneys watched the proceedings, and this apparently created an atmosphere of bias against Vasquez during the first trial.   Counsel stated he would be calling [Vasquez's stepfather] a witness at the second trial, and argued this fact was yet another reason for recusal of the district attorney's office.

Vasquez's counsel argued the prosecutor's attitude demonstrated an “over-zealous approach to avoid the appearance of impropriety because of the status of defendant's father.”   In counsel's view, a “neutral detached objective prosecution of this case is not possible by the very office that employs both of the defendant's parents.”

The attorney general filed a formal response, arguing there was no conflict so disabling it warranted recusal.

At the hearing on the motion, Vasquez's counsel elaborated on the arguments made in his motion.   Usually after a hung jury, counsel argued, the district attorney's office tries to settle the case by offering a plea to a lesser charge.   Counsel noted, “Instead of coming to us [after the hung jury] with an offer below second degree murder with a voluntary offer, which is what I've offered to plead to from day one of the case, high-term plus the knife use, [the prosecutor] has not tendered any other offer than second-degree murder.   We feel that is due in part to the fact that Mr. Vasquez is [a deputy district attorney's] son and they feel they cannot make any kind of offer which will look like they're showing leniency, which they may do to a defendant who is not the son of a deputy district attorney.”

The court heard argument from a deputy from the attorney general's office.   The prosecutor also offered her comments as follows:  “With respect to the recusal motion or the grounds stated on the record for the recusal motion in front of Judge Shapiro because when I refused to waive jury to Judge Shapiro, counsel put this before Judge Shapiro by way of a recusal motion.   And I did put on the record that in light of the judge's prior relationship with the office I felt that it will be best not to waive jury to him to avoid the appearance of impropriety and also I did not wish to put him in that position of making a decision and ultimately having his decision perhaps questioned.”

The prosecutor noted both of her predecessors had also only offered second-degree murder as a possible plea.   Vasquez's counsel agreed this was true, which indicated to him it was a policy decision by the district attorney's office not to offer less than second-degree murder.

At the conclusion of the hearing, Judge Fidler denied Vasquez's motion to recuse the district attorney's office.   In so ruling the court commented, “I think at best what's been presented-and it doesn't make any difference under existing law whether it's apparent or natural [sic] conflict.   The standard is still the same, and that is the motion may not be granted unless the conflicts would render it unlikely the defendant will receive a fair trial under [Penal Code section] 1424, subdivision A, subdivision 1.

“It appears that what you have is really vague speculation.   First of all, the fact [Vasquez's stepfather] himself may be a witness in the matter is not a reason to recuse and case law set forth in the attorney general's brief clearly points that out, and my guess is I wouldn't speak for when the case is tried that [Vasquez's stepfather's] occupation will not be allowed [into] evidence.   It may, may not.   But my speculation it's not relevant and probably would not come in.

“The one fact that you bring forward that is interesting is really almost all the existing case law, in fact all of it tends to go when the victim has a relationship with the prosecuting agency and therefore because of the existing relationship with the victim somehow the defendant will be treated differently, unfairly.   Here you have the exact 180 degree opposite.

“Now, you raise an interesting proposition that because the People-because of Judge Shapiro's past employment would not waive jury in front of him, of course they're not required to waive jury at all.   No one has the right to a court trial.   I don't-you haven't shown me that it's because the district attorney as the prosecutor, if the attorney general was to come in this because of all the problems attendant with his past position.   And I'd added in I don't think it's raised in the papers that Judge Shapiro's brother is a sitting [deputy] district attorney highly unlikely he will get a waiver in front of Judge Shapiro.

“If the People took the position we will never waive jury with any judge because of who the defendant is, vis-à-vis his stepfather and his mother, your argument might be a little more interesting.   But that's not the position they're taking.   The facts have not shown that so I cannot find that you have met the statutory burden that you need and therefore the recusal motion is denied.

“You know, parenthetically I can say if I were the district attorney, which I do not wish to be nor am I, I might just as a matter of principle as opposed to law say why are we prosecuting this case, but that's not the standard.   And as long as the district attorney's office chooses to stay in the case, I think that is an appropriate decision under existing case law so therefore the motion to recuse is denied.”

 A. A Prosecutor Has An Obligation To Execute His Or Her Discretionary Functions With The Highest Degree of Integrity And Impartiality.

 In 1977, in the case of People v. Superior Court (Greer ),7 the Supreme Court held a trial court has the power and duty to recuse the prosecutor when warranted to ensure an accused a fair and impartial trial.8  “In all [a prosecutor's] activities, his duties are conditioned by the fact that he ‘is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all;  and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.   As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’  [Citations.]” 9

 The Greer court reasoned, “it is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he [or she] perform his [or her] functions with the highest degree of integrity and impartiality, and with the appearance thereof․ [The] advantage of public prosecution is lost if those exercising the discretionary duties of the district attorney are subject to conflicting personal interests which might tend to compromise their impartiality.   In short, the prosecuting attorney “ ‘is the representative of the public in whom is lodged a discretion which is not to be controlled by the courts, or by an interested individual. ․’ ” (Italics added.)  [Citation.]” 10

The court noted a district attorney makes numerous discretionary decisions which are not confined to those made pretrial of whom to charge and what charges to bring.11  In making each of these discretionary decisions the court directed “[a] district attorney may ․ prosecute vigorously, but both the accused and the public have a legitimate expectation that his [or her] zeal, as reflected in his [or her] tactics at trial, will be born of objective and impartial consideration of each individual case.” 12

The Supreme Court has reiterated these concerns and directives in subsequent decisions.13

Greer involved a murder prosecution in which the victim of the homicide was the son of a member of the district attorney's staff who worked in the very office in which the prosecution was being prepared.   Sympathy for the victim permeated the office.   On these facts, the Greer court concluded the trial court had not abused its discretion in finding the apparent conflict of interest required disqualification of the entire district attorney's office.14

 B. Under The Statutory Standard Recusal Is Warranted If Either An Actual Or Apparent Conflict Is So Grave It Is Unlikely The Defendant Will Receive Fair Treatment During All Portions Of The Criminal Proceeding.

Three years later, the Legislature enacted Penal Code section 1424 partly in response to the Greer decision.   This section provides in pertinent part, “The motion [to recuse] 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.”

 The Supreme Court interpreted this statutory provision in People v. Conner.15  The court concluded the statutory phrase “conflict of interest” included both “actual” and “apparent” conflicts of interest.  “While it is conceivable that an ‘appearance’ of conflict could signal the existence of an ‘actual’ conflict which, although prejudicial to the defendant, might be extremely difficult to prove, we think that the additional statutory requirement (that a conflict exist such as would render it unlikely that the defendant would receive a fair trial) renders the distinction between ‘actual’ and ‘appearance’ of conflict less crucial.” 16

The Conner court thus held a “conflict” within the meaning of the statute exists, “whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.   Thus, there is no need to determine whether a conflict is ‘actual,’ or only gives an ‘appearance’ of conflict.” 17

However, whether recusal is required depends on whether the conflict-actual or apparent-is “so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.” 18  In other words, because the prosecutor's discretionary functions are not limited to the trial proper, the Supreme Court recognized the need for prosecutorial impartiality extends to “all portions of the proceedings,” not only to the trial.19

 The Supreme Court in Eubanks further explained the circumstances under which a conflict may be deemed “disabling.”   Regardless how the conflict is characterized, the potential for prejudice to the defendant “must be real, not merely apparent, and must rise to the level of a likelihood of unfairness.   Thus section 1424, unlike the Greer standard, does not allow disqualification merely because the district attorney's 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.  (Accord, People v. McPartland (1988) 198 Cal.App.3d 569, 574, 243 Cal.Rptr. 752 [‘recusal cannot be warranted solely by how a case may appear to the public’];  People v. Lopez [(1984)] 155 Cal.App.3d [813] at pp. 827-828, 202 Cal.Rptr. 333.)” 20

 As explained in Eubanks, the Conner analysis essentially established a two-part test for resolving motions to recuse:  “(i) is there a conflict of interest?;   and (ii) is the conflict so severe as to disqualify the district attorney from acting?” 21

The following section applies this test to the case at bar.

 C. The Conflict Of Interest Created The Likelihood Of Unfair Treatment And Thus Was Sufficiently Grave The Trial Court Should Have Granted Vasquez's Motion To Recuse The District Attorney's Office.

 Following the hearing on the request to recuse the district attorney's office the trial court found (1) the motion was “vague speculation;” (2) the fact [Vasquez's stepfather] may be a witness at retrial did not create a disabling conflict;  and (3) the prosecutor was within her right to refuse a bench trial before Judge Shapiro.   Thus, the court concluded Vasquez had not produced sufficient evidence to satisfy the statutory burden of proof and denied the motion.

 An appellate court's role “is to determine whether there is substantial evidence to support the findings (People v. Conner (1983) 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5) and, based on those findings, whether the trial court abused its discretion in denying the motion.   (People v. Hamilton (1988) 46 Cal.3d 123, 140, 249 Cal.Rptr. 320, 756 P.2d 1348;  Love v. Superior Court (1980) 111 Cal.App.3d 367, 371, 168 Cal.Rptr. 577;  People v. Battin (1978) 77 Cal.App.3d 635, 671, 143 Cal.Rptr. 731.)” 22

As an initial matter, the record makes clear the court failed to make either necessary finding regarding the existence of a conflict, and if one existed, whether the conflict was so grave as to render fair treatment unlikely, as is required by the Supreme Court's decisions in Conner and Eubanks.23  This court is thus deprived of the trial court's insights on these separate questions.

In addition, it appears from the evidence adduced at the hearings only one of the trial court's three findings is supported by the evidence.   The possibility [Vasquez's stepfather] might be called as a witness, without further evidence of why this circumstance might prejudice the defense, is not alone sufficient to order recusal.   Appellate decisions uniformly hold the bare fact a deputy district attorney may be a witness at trial is generally insufficient to disqualify the entire district attorney's office.24  Thus, this finding finds support in the record.

The same cannot be said for the court's other findings:  the evidence Vasquez was being treated differently was only “speculative” and there was nothing improper about the prosecutor's decision to refuse a bench trial before Judge Shapiro.   Instead, the record evidence shows a reasonable possibility the prosecutor was not exercising her discretionary functions in an evenhanded manner.

It may be true a defendant has no absolute right to a bench trial, but this is not the point.   The prosecutor refused a bench trial before Judge Shapiro for fear he might treat Vasquez more leniently than the victim's family wished, with the result the victim's family would attribute this leniency to a showing of favoritism to the child of a district attorney because of the judge's former employment by the district attorney's office.

In most cases appellate courts are required to deal with the possibility a prosecutor might not be impartial and with the likelihood of unfair treatment.   In the present case there was direct evidence showing Vasquez was in fact being treated differently-and was being so treated because of the conflict.   At the hearing, the prosecutor stated she had done many trials before Judge Shapiro and always felt the People had received a fair trial.   The prosecutor did not, however, want a bench trial before Judge Shapiro in Vasquez's case.   She admitted her decision to decline a bench trial had been influenced by what the victim's family's reaction would be to likely favorable rulings for Vasquez.   She told Judge Shapiro, “Part of my concern is, also, your prior career with the district attorney's office.   And my victim['s] family is a little upset because I'm the third lawyer on this case, and they were very concerned that perhaps we were not pursuing things.”   The prosecutor further explained why in her view the judge's connection to the district attorney's office created a problem in trying Vasquez.  “So their [the victim's family's] position and my evaluation, also, the evidence is that this is a first degree murder;  I did not wish to put this court in a position of having its integrity questioned regarding a ruling that would either be something that perhaps we didn't feel the evidence showed.  [¶] And, also, I wanted to insure that there was no appearance of any improprietary [sic] on the part of our office in handling this.”

From her comments it appears the prosecutor would likely have accepted the offer of a bench trial had the case involved a defendant other than a child of a deputy district attorney, and had she not been so concerned about the victim's family's reaction to possible rulings favoring the accused from a former member of the district attorney's office.

The evidence the prosecutor would not consider a plea of voluntary manslaughter is further evidence Vasquez was being treated differently than the prosecutor would possibly have treated some other defendant.   Vasquez had no prior criminal record.   The evidence of Vasquez's intent was arguably ambiguous.   The evidence showed the P.A.L. and C.N.E. tagging crews were rivals but that their usual mode of confrontation was fistfights.   The tagging crews had no history of using deadly weapons, or any weapons for that matter, beyond mace or pepper spray.   The jury at the first trial obviously could not agree on the crime committed.   It is possible several of these jurors believed Vasquez and Fregoso merely intended to assault and scare the victim rather than kill him.

However, even after the first jury hung, the prosecutor insisted the facts showed first-degree, premeditated murder and lying-in-wait.   She thus continued to offer second-degree murder (as had her two predecessors, suggesting the offer of second-degree murder might have been an institutional decision).   In any event, after a jury fails to reach a verdict in a case it is common for a prosecutor to offer a plea to a lesser crime to avoid retrial.   The prosecutor made no such offer in this case and instead insisted on pursuing first-degree murder.   The prosecutor's decision not to offer a more favorable plea bargain evidences a reasonable possibility the prosecutor was treating Vasquez less favorably.

The foregoing is substantial evidence of the possibility the prosecutor was not exercising her discretionary functions in an evenhanded manner.   Moreover, and assuming counsel's representations at the hearing are accurate, the fact the district attorney's office requested the attorney general to handle the prosecution indicates that office knew from the beginning the case presented at minimum an appearance of a conflict of interest.

Thus, on this record the trial court should have found either an actual or apparent conflict within the meaning of Penal Code section 1424.

The next question is whether this conflict was so grave as to render it unlikely Vasquez would receive fair treatment during all portions of the criminal proceedings.

As already noted, he was deprived of the opportunity of a trial before an even-handed judge but who himself was a former deputy district attorney.   The prosecutor declined Vasquez's offer of a bench trial because when or if rulings favorable to the accused occurred the victim's family would blame it on the district attorney's office as evidence of favoring and protecting its own.

Evidence a prosecutor is influenced or controlled by outside sources when making discretionary decisions can be evidence of a disabling conflict.25  From the record it appears the victim's family had an unusually strong influence on the prosecutor's decision-making process in this case.   This outside pressure, in turn, created the potential for unfairness in this case where the prosecutor felt an obligation to treat Vasquez more harshly in order to avoid a charge of favoritism.

Despite the fact the first jury hung, the prosecutor refused to offer any plea less than second-degree murder.   Again, this is some evidence the prosecutor possibly treated Vasquez more harshly in the plea bargaining process.26  Given the prosecutor's earlier comments, the record suggests the prosecutor offered nothing less than second-degree murder so as not to alienate the victim's family by making it appear he received a lesser charge than first-degree murder simply because of his familial connection to the district attorney's office.

From the record evidence alone, it appears the conflict in this case was sufficiently grave it was likely Vasquez would not receive fair treatment at all stages of the criminal proceedings within the meaning of Penal Code section 1424.

There are no reported decisions presenting a similar or analogous factual situation to assist in this analysis.   Many of the published decisions involve a challenge to a particular prosecutor because of a prior relationship to the accused.27  Orders denying recusal in these situations have been upheld where the evidence demonstrated the district attorney's office had taken effective and extreme measures to ensure the affected prosecutor was utterly removed from any aspect of the prosecution.28

 Recusing an entire office is a very serious matter and for this reason requires a particularly strong showing it is unlikely a defendant will be treated fairly in all aspects of a trial.29  Recusal of an entire district attorney's office has nevertheless been held appropriate when there was substantial evidence personal animosity, bias or personal emotions had affected the office.30

Vasquez was prosecuted by the very office and in the very building in which both his mother and stepfather worked.   This created too much pressure from, and scrutiny by, colleagues in the office.   Moreover, as noted, pressure from the victim's family overly influenced the prosecutor's decisions with the result Vasquez was likely treated more harshly than some other defendant would likely have been treated.

For these reasons in combination, we find the trial court abused its discretion in denying recusal in this case.

 D. The Erroneous Denial Of Vasquez's Motion To Recuse The District Attorney's Office Was Not Prejudicial.

 The next questions concern whether the erroneous denial of the motion to recuse the district attorney's office requires reversal of the judgment, and the appropriate standard for reversible error in this context.

In People v. Superior Court (Greer ) the court expressed the view reversal of a judgment would be commonplace if trial courts were powerless to recuse the district attorney's office where a conflict required the office's disqualification.   Thus, in Greer the Supreme Court rejected the attorney general's argument it would violate the separation of powers doctrine for a trial court to have the authority to disqualify a district attorney.   The court found it anomalous for the attorney general to concede “a prosecutorial conflict of interest in criminal cases may require reversal of a conviction in the appellate courts.   Yet if the trial judge has no authority to recuse a district attorney, in such a case he could do no more, short of outright dismissal, than helplessly preside over a criminal proceeding which he finds improper and which appears destined for reversal on appeal.” 31  The court reasoned to avoid “inevitable reversals on appeal” trial courts should have as much authority as appellate courts to determine when recusal of the district attorney's office is justified.32

Had Vasquez sought pretrial review of the courts' erroneous denials of his motions to recuse the district attorney's office the showing of a likelihood of unfair treatment would have sufficed for reversal.33  Apparently, Vasquez did not seek pretrial review by filing a writ petition in this case.   Had he done so, and in light of our previous discussion, this court would have surely granted the requested relief.

The parties have not cited, and this court has discovered no cases stating the standard for reversible error in this context where the issue is raised for the first time on appeal from the judgment.   However, in other contexts courts have held reversal requires a showing of prejudice to the complaining party before a judgment may be reversed for the erroneous failure to disqualify a conflicted counsel where the complaining party raises the issue for the first time on appeal.

For example, in In re Sophia B.34 the mother of a dependent child moved to disqualify county counsel from representing the Department of Social Services.   The mother argued county counsel should be disqualified because county counsel had also represented her conservator, the public guardian, and was thus privy to confidential information about her.   The mother did not seek pretrial review of the court's ruling denying her motion.35  On appeal the court framed the issue for decision as follows:  “where a party does not seek pretrial review of an order refusing to disqualify opposing counsel and raises the issue only on appeal from the final judgment in the action, is that party obligated to demonstrate that the denial of the motion in some way affected the outcome of the case?” 36  The court concluded a showing of prejudice was required in accordance with the usual principles of appellate procedure.   The court noted an attorney can be disqualified based on only the potential for causing harm, whereas the California Constitution mandates a judgment may not be reversed absent a showing the error affected the outcome.37  The court noted by the end of trial court proceedings it will be clear whether the potential for harm from the conflict materialized or whether no harm occurred and the parties received a fair trial despite the conflict.   The court thus “infer[red] a rule that on appeal from a final judgment, an issue of attorney disqualification may not be raised unless it is accompanied by a showing that the erroneous granting or denying of a motion to disqualify affected the outcome of the proceeding to the prejudice of the complaining party.” 38

In applying this standard, we conclude Vasquez cannot demonstrate actual harm from the conflict as a result of the trial court's erroneous denial of his motion to recuse the district attorney's office.

Initially we note, Vasquez was not harmed by the loss of a bench trial before Judge Shapiro.   This trial resulted in a hung jury and mistrial.   Because his first trial was a nullity, it necessarily had no affect on the outcome of his case.

Similarly, Vasquez cannot demonstrate harm from the fact the deputy district attorneys consistently offered him plea bargains of only second-degree murder.   While these offers were not as favorable as would have been an offer of voluntary manslaughter, the result of the case demonstrates second-degree murder was in fact a fair offer.   A majority of the jurors in the first trial voted for murder.   Vasquez's second jury found the evidence showed beyond a reasonable doubt the crime he committed was second-degree murder.   Accordingly, Vasquez cannot demonstrate he was actually harmed from the district attorney's alleged inability to make reasonable offers because of the conflict.   Finally, the probability (versus possibility) a nonconflicted attorney might have made him a plea offer of voluntary manslaughter is necessarily speculative in the absence of any evidence to support the assertion.

Because the record facts establish Vasquez received fair, if not favorable, treatment during the proceedings, we conclude he has not demonstrated the requisite prejudice necessary to reverse the judgment in this case.

II.-VII.**

DISPOSITION

The judgments of conviction are affirmed.

FOOTNOTES

1.   People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748.

2.   According to the witnesses, P.A.L. stands for “Psycho As Life,” “Passing All Limits,” and “Psycho Ass Lunatics.”   C.N.E. stands for “Crying Never Ends” and “Crazy ‘N Evil.”

3.   Devon Harris testified Vasquez already had his knife out and open as he crossed the street to Armando.   Harris further testified the spraying and stabbing occurred simultaneously.Jose Amaya testified Vasquez already had his knife out as he crossed the street.   He further testified Vasquez stabbed Armando before Armando sprayed the pepper spray.Hideshi Valle testified Armando tried to pepper spray Vasquez but missed and was stabbed.Melissa Garcia did not see the stabbing itself.   However, she did see an object in Vasquez's hand as he crossed the street to meet up with Armando.   She testified she saw Armando bleeding as he tried to spray Vasquez with pepper spray.

4.   Penal Code section 187, subdivision (a).

5.   Penal Code section 12022, subdivision (b)(1).

6.   To the extent relevant in this appeal, Vasquez joins in Fregoso's arguments and Fregoso joins in Vasquez's arguments.

7.   People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164.

8.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 266, 137 Cal.Rptr. 476, 561 P.2d 1164.

9.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 266, 137 Cal.Rptr. 476, 561 P.2d 1164.

10.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 266-267, 137 Cal.Rptr. 476, 561 P.2d 1164.

11.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 267, 137 Cal.Rptr. 476, 561 P.2d 1164 [giving as examples the manner of conducting voir dire examination, the decision whether to grant immunity, the use of particular witnesses or tests, choice of argument, and negotiating plea bargains];  see also, Dix v. Superior Court (1991) 53 Cal.3d 442, 452, 279 Cal.Rptr. 834, 807 P.2d 1063 [“whether to seek, oppose, accept, or challenge judicial actions and rulings.”].

12.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 267, 137 Cal.Rptr. 476, 561 P.2d 1164.

13.   See, e.g., People v. Eubanks (1996) 14 Cal.4th 580, 588-590, 59 Cal.Rptr.2d 200, 927 P.2d 310;  People v. Conner (1983) 34 Cal.3d 141, 146-147, 193 Cal.Rptr. 148, 666 P.2d 5.

14.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 269, 137 Cal.Rptr. 476, 561 P.2d 1164.

15.   People v. Conner, supra, 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5.

16.   People v. Conner, supra, 34 Cal.3d 141, 147, 193 Cal.Rptr. 148, 666 P.2d 5.

17.   People v. Conner, supra, 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5.

18.   People v. Conner, supra, 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5, italics added.

19.   People v. Conner, supra, 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5.

20.   People v. Eubanks, supra, 14 Cal.4th 580, 592, 59 Cal.Rptr.2d 200, 927 P.2d 310.

21.   People v. Eubanks, supra, 14 Cal.4th 580, 594, 59 Cal.Rptr.2d 200, 927 P.2d 310.

22.   People v. Breaux (1991) 1 Cal.4th 281, 293-294, 3 Cal.Rptr.2d 81, 821 P.2d 585;  accord, People v. Griffin (2004) 33 Cal.4th 536, 569, 15 Cal.Rptr.3d 743, 93 P.3d 344.

23.   People v. Conner, supra, 34 Cal.3d 141, 148-149, 193 Cal.Rptr. 148, 666 P.2d 5 [addressing each element separately];  People v. Eubanks, supra, 14 Cal.4th 580, 594, 59 Cal.Rptr.2d 200, 927 P.2d 310 [finding trial court erred by addressing only the first part of the test, the existence of a conflict, without deciding whether the conflict was so grave as to make fair treatment unlikely].

24.   See, e.g., People v. Snow (2003) 30 Cal.4th 43, 86-87, 132 Cal.Rptr.2d 271, 65 P.3d 749 [recusal was not required although two deputy district attorneys testified at trial];  People v. Merritt (1993) 19 Cal.App.4th 1573, 1580, 24 Cal.Rptr.2d 177 [“merely because an employee may be a potential witness and credibility of that witness may have to be argued by the prosecuting attorney, there is no sufficient basis for that reason alone to recuse an entire prosecutorial office.”];  Love v. Superior Court (1980) 111 Cal.App.3d 367, 372, 168 Cal.Rptr. 577 [“The general rule is that an entire office should not be recused merely because one or more of its members might be called as witnesses for the defense.”].

25.   See, e.g., People v. Eubanks, supra, 14 Cal.4th 580, 596, 59 Cal.Rptr.2d 200, 927 P.2d 310 [a conflict may exist if a prosecutor is influenced or controlled by a victim who has a personal interest in the defendant's prosecution and conviction].

26.   Compare, People v. Neely (1999) 70 Cal.App.4th 767, 777, 82 Cal.Rptr.2d 886 [although the prosecutor in his campaign for office had used the defendant's case as an example of one deserving the death penalty, the undisputed evidence showed the prosecutor had nevertheless acted in an evenhanded manner by offering the defendant a plea bargain of life without the possibility of parole].

27.   See discussion in Annotation, Disqualification of Prosecuting Attorney in State Criminal Case on Account of Relationship with Accused (1996) 42 A.L.R. 5th 581.

28.   See, e.g., Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 112-113, 164 Cal.Rptr. 864 [district attorney's office took affirmative steps to isolate former public defender from any prosecutorial involvement in his former clients' cases:  he received a six-month assignment to exclusively handle juvenile cases, his office was in a separate building, he reported to a supervisor from another area, he had no supervisory or policymaking role in the prosecutor's office, and he swore not to discuss his prior cases with prosecutorial personnel].

29.   People v. Hamilton (1988) 46 Cal.3d 123, 139, 249 Cal.Rptr. 320, 756 P.2d 1348;  Love v. Superior Court, supra, 111 Cal.App.3d 367, 371, 168 Cal.Rptr. 577.As an alternative to recusing the entire district attorney's office, courts have affirmed or crafted orders for only partial recusal of a district attorney's office when satisfied the effects of the conflict could be successfully eliminated through isolation or segregation measures.  (See, e.g., Love v. Superior Court, supra, 111 Cal.App.3d 367, 374-375, 168 Cal.Rptr. 577 [defendant moved to recuse the entire district attorney's office because the office had recently hired a person who had worked as a research assistant with the public defender while a law student;  court ordered recusal of only the major crimes section to which the former law student was assigned].)

30.   People v. Eubanks, supra, 14 Cal.4th 580, 599-600, 59 Cal.Rptr.2d 200, 927 P.2d 310 [fact district attorney requested substantial financial assistance from the private victim created a substantial risk of bias and of being under the influence or control of the victim];  People v. Choi (2000) 80 Cal.App.4th 476, 481-482, 94 Cal.Rptr.2d 922 [district attorney was a close friend of the murder victim and had made public statements regarding the murder of his friend and a connected case];  Lewis v. Superior Court (1997) 53 Cal.App.4th 1277, 62 Cal.Rptr.2d 331 [every employee of the district attorney's office was necessarily a victim of and affected by the county's auditor/controller's misconduct resulting in the county's bankruptcy];  People v. Lepe (1985) 164 Cal.App.3d 685, 211 Cal.Rptr. 432 [district attorney had previously represented the defendant in the same matter and necessarily had privileged information regarding the case];  Younger v. Superior Court (1978) 77 Cal.App.3d 892, 144 Cal.Rptr. 34 [private attorney with extensive criminal law practice was appointed to the third ranking position in the district attorney's office;  because of his policy-making and supervisory position it was likely his decisions would affect his former clients' cases prosecuted in his office];  People v. Conner, supra, 34 Cal.3d 141, 148-149, 193 Cal.Rptr. 148, 666 P.2d 5 [defendant tried to escape by shooting and stabbing deputy sheriff and then shot at deputy district attorney who witnessed the scene;  deputy district attorney reported the incident to his superiors, discussed the incident with the majority of the prosecutors in his office and gave interviews to the media.   Recusal regarding the escape charges was upheld as proper because the prosecutor was both a victim of, and a witness to, the incident];  People v. Greer, supra, 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164 [recusal of entire office upheld as proper where murder victim's mother worked in the same district attorney's office as a clerical employee and many other employees of the office had an emotional stake in the outcome].

31.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 264, 137 Cal.Rptr. 476, 561 P.2d 1164.

32.   People v. Superior Court (Greer), supra, 19 Cal.3d 255, 264, 137 Cal.Rptr. 476, 561 P.2d 1164.

33.   See, e.g., Lewis v. Superior Court, supra, 53 Cal.App.4th 1277, 1286, 62 Cal.Rptr.2d 331;  compare, People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, 165 Cal.Rptr. 851, 612 P.2d 941 [when error occurs at a preliminary examination, the right to relief without a showing of prejudice is limited to pretrial challenges to irregularities;  on appeal such errors will require reversal only if the defendant can show he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary hearing].

34.   In re Sophia B. (1988) 203 Cal.App.3d 1436, 250 Cal.Rptr. 802.

35.   In re Sophia B., supra, 203 Cal.App.3d 1436, 1438, 250 Cal.Rptr. 802.

36.   In re Sophia B., supra, 203 Cal.App.3d 1436, 1439, 250 Cal.Rptr. 802.

37.   In re Sophia B., supra, 203 Cal.App.3d 1436, 1439, 250 Cal.Rptr. 802, citing California Constitution, article VI, section 13.

38.   In re Sophia B., supra, 203 Cal.App.3d 1436, 1439, 250 Cal.Rptr. 802;  compare, People v. Beaumaster (1971) 17 Cal.App.3d 996, 1009, 95 Cal.Rptr. 360 [to reverse a judgment based on a claim of judicial bias requires an affirmative showing of prejudice];  but see, Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 461-463, 134 Cal.Rptr.2d 756 [obvious judicial bias so tainted the trial unfairness was presumed without a showing of actual prejudice].

FOOTNOTE.   See footnote *, ante.

JOHNSON, J.

We concur:  PERLUSS, P.J., and WOODS, J.

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