PEOPLE v. ANDUJO (1990)

The sole issue in this appeal by the People is whether the trial court properly exercised its discretion in recusing the Los Angeles County District Attorney's Office from the prosecution of Raul Cota Andujo (Andujo).   We conclude that it did, and we affirm the trial court's order.   The Attorney General will therefore assume responsibility for the prosecution of this matter.  (Gov.Code, § 12550.)

PROCEDURAL HISTORY

Andujo was charged by the Los Angeles County District Attorney's Office (“District Attorney's Office”) with one count of unlawful driving or taking of a vehicle (Veh.Code, § 10851, subd. (a)) and one count of receiving stolen property (Pen.Code, § 496, subd. (1)).   The information also alleged that Andujo had served two prior prison terms.  (Pen.Code, §§ 667.5, subd. (b) and 1203, subd. (e)(4).)   Andujo pleaded not guilty and denied the alleged prior prison terms.   Superior Court Commissioner Irwin H. Garfinkel was appointed judge pro tempore by stipulation.

A pretrial conference was held before Commissioner Garfinkel.   Andujo was represented by Deputy Public Defender Dennis Plourd and the prosecutor was Deputy District Attorney John Moulin.   During the conference, Moulin stated that he could not make any plea bargain offer because Andujo, acting as his own attorney, had won acquittal in a prior jury trial against another prosecutor in the District Attorney's Office.   In that earlier action, prosecuted by Deputy District Attorney William Crisci, Andujo was found not guilty of first and second degree murder, voluntary manslaughter, and a charge of being an accessory after the fact.¹

Plourd then filed a motion to recuse the District Attorney's Office pursuant to Penal Code section 1424 on the ground that a conflict of interest existed which impaired the prosecutor's ability to perform his function impartially.   Plourd attached copies of the docket in the prior murder prosecution, case number A4768864.   The Attorney General's Office appeared for the prosecution, and opposed the motion to recuse on the ground that Moulin's decision not to offer a plea bargain was based on legitimate factors stemming from Andujo's previous convictions for armed robbery and the pending charge of assault with a deadly weapon in a separate case.

The Attorney General submitted a declaration of John Moulin in which he stated that he had had no discussions with Deputy District Attorneys William Crisci or Jeffrey Jonas about whether or not to settle Andujo's case.²  Moulin further declared:  “That no offer to settle Raul Andujo's case has been made (other than an ‘open’ plea) due to the following factors:  Mr. Andujo has two armed robbery convictions in 1979 and 1984 in which he was sentenced to State Prison;  Defendant Andujo has a pending Penal Code Section 245 charge with a Penal Code Section 12022.7 allegation in Case No. A982969, which was committed while the defendant was out-of-custody on the present case;  and the probation officer recommends High–Base term in this case.”

Commissioner Garfinkel withdrew as trial judge in the case, and the motion to recuse the District Attorney's Office was heard by Superior Court Judge J. Michael Byrne.   Commissioner Garfinkel testified at the recusal hearing.   When the trial court asked for the exact conversation, Commissioner Garfinkel testified:  “Mr. Moulin said the case stinks.   It would be a close jury trial.   And at another point he said it is not a great case, but it has to be an open plea.   There can be no district attorney offer because Bill Crisci lost a jury trial to this defendant.”   After reviewing notes he made during the conversation in chambers, Commissioner Garfinkel testified that he had no recollection of Moulin mentioning the two prior armed robbery offenses.   While there was a discussion of the other offense charged against Andujo and Andujo was out of custody on the instant case, Moulin did not indicate that his unwillingness to settle was based on this.   Moulin did not say that he had been told by Crisci to refuse settlement of the case.   There was no evidence of Moulin's relationship with Crisci, if any, or of the relative positions of Moulin and Crisci within the District Attorney's Office.   Moulin did not testify at the hearing.

The Deputy Attorney General argued that the evidence did not establish a conflict so grave that the defendant would not receive a fair trial.   She contended that Moulin took other factors into account in refusing to offer anything other than an open plea.   The reason for the decision to refuse any plea bargain was the principal contested issue at the hearing.   After reviewing the evidence, the trial judge resolved the issue against the prosecutor:  “I think he could have, but to me—that's why I wanted to get the exact conversation.   That's why it was important for me to get the exact conversation.   It sounds like those are not things that were brought out.   I mean, it sounds like somebody—the impression I got, factually, somebody is being put to the wall because of a case, not because of the factors.   He was told he wouldn't get a settlement, and settlement is something other persons may get in a case.”

The Deputy Attorney General proposed that only Moulin be recused, arguing, without citation, cases in which the prosecutor's office was so large that recusal of the entire office was not required.   The trial court recognized that option, but stated:  “In those cases, at least the appellate record indicated there was evidence of another alternative that was presented to the court to show that the case would be insulated from potential prejudice, which we don't have here.   Nothing's been presented as another alternative.”   The court found that there was “a substantial likelihood the defendant would not receive a fair prosecution in this matter” and granted the motion.   The Attorney General's Office filed a timely notice of appeal pursuant to Penal Code section 1424.

On appeal, the Attorney General contends that there is no substantial evidence from which the trial court could conclude that Moulin would not perform his discretionary functions in an evenhanded manner.   Appellant argues there was no evidence that Moulin was instructed not to settle Andujo's case and that the decision was based on legitimate factors stemming from Andujo's criminal history.   Alternatively, appellant contends that, assuming that a conflict of interest was established, the trial court abused its discretion in recusing the entire District Attorney's Office.

DISCUSSION

Penal Code section 1424 provides that a district attorney may be disqualified upon a showing that “a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” ³  A conflict 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.”  (People v. Conner (1983) 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   This rule is based on the public policy requiring the prosecutor to seek justice:  “The DA's office is obligated not only to prosecute with vigor, but also to seek justice.   This theme was stressed almost half a century ago by the United States Supreme court in Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633, 79 L.Ed. 1314] ․ ‘[The prosecutor] is the representative not of an 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.’ ”  (People v. Conner, supra, 34 Cal.3d at 148, 193 Cal.Rptr. 148, 666 P.2d 5.)

 It may be appropriate to recuse an entire district attorney's office when there is substantial evidence that a deputy's animosity toward the accused may affect his or her colleagues.  (People v. Hamilton (1988) 46 Cal.3d 123, 140, 249 Cal.Rptr. 320, 756 P.2d 1348;  People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   If evidence of personal animus or bias is slight and does not support a reasonable inference of unfairness, recusal should be denied.  (People v. Hamilton, supra, 46 Cal.3d at p. 140, 249 Cal.Rptr. 320, 756 P.2d 1348.)   When a defendant seeks to recuse an entire prosecutorial office, particular caution is required, and the showing must be especially persuasive.  (People v. Hamilton, supra, 46 Cal.3d at p. 139, 249 Cal.Rptr. 320, 756 P.2d 1348.)   We are bound by the factual determination of the trial court, if supported by substantial evidence (Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 115, 164 Cal.Rptr. 864), and we review the trial court's decision under the abuse of discretion standard.  (People v. Hamilton, supra, 46 Cal.3d at p. 140, 249 Cal.Rptr. 320, 756 P.2d 1348.)

 This is because the trial court is in a better position than a reviewing court to assess the effect of the circumstances giving rise to the motion to recuse.  (See People v. Conner, supra, 34 Cal.3d at 149, 193 Cal.Rptr. 148, 666 P.2d 5;  People v. McPartland (1988) 198 Cal.App.3d 569, 574, 243 Cal.Rptr. 752.)   Here, there was direct evidence that Andujo was given only an open plea offer solely because of his success against another district attorney in an earlier trial rather than because of his criminal record.   Significantly, although given an opportunity to do so, and even though he signed a declaration in opposition to the recusal motion, Moulin did not deny making the statements attributed to him by Commissioner Garfinkel.

The cases cited by the Attorney General for the proposition that recusal of an entire prosecutorial office constitutes an abuse of discretion are inapposite.   Each is distinguishable.   In People v. Superior Court (Martin) (1979) 98 Cal.App.3d 515, 159 Cal.Rptr. 625, the trial court's order granting disqualification was based on the district attorney's office's representation of defendant's child in dependency proceedings pursuant to Welfare and Institutions Code section 300 at the same time that office was prosecuting defendant for the murder of his wife.   Defendant conceded that he was not claiming a conflict in fact.  (Id. at p. 520, 159 Cal.Rptr. 625.)   In People ex rel. Younger v. Superior Court (Rabaca) (1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156 and People v. Superior Court (Hollenback) (1978) 84 Cal.App.3d 491, 148 Cal.Rptr. 704, the trial courts recused the prosecutorial office because of the possibility that members of that office might be called as witnesses.   In each instance the potential testimony concerned investigatory matters, electric surveillance in Hollenback and a pretrial photographic identification in Rabaca.   In People v. Municipal Court (Byars) (1978) 77 Cal.App.3d 294, 143 Cal.Rptr. 491, the defendant moved to recuse the city attorney's office because that office was prosecuting him on a misdemeanor charge while it was charged with defending the city and its agents against a civil claim filed by defendant arising from the same altercation.   The trial court granted the motion to recuse.   The appellate court found that the record was barren of evidence of extraneous factors that might impinge on the prosecutor's impartiality and issued a writ of mandate directing the trial court to vacate its order.

Unlike these cases, in this unusual case the defendant presented evidence, credited by the trial court, that the District Attorney's Office harbored a specific bias which already had affected the fairness of the proceedings against him, since defendant was denied a plea bargain solely because of his success in a previous criminal case brought by that office.

The Attorney General's reliance on People v. Hamilton, supra, 46 Cal.3d 123, 249 Cal.Rptr. 320, 756 P.2d 1348;  Trujillo v. Superior Court (1983) 148 Cal.App.3d 368, 196 Cal.Rptr. 4;  People v. Municipal Court (Henry) (1979) 98 Cal.App.3d 690, 159 Cal.Rptr. 639;  and People v. Battin (1978) 77 Cal.App.3d 635, 143 Cal.Rptr. 731 is equally unavailing.   In each of these cases, the appellate court, according appropriate deference to the decision of the lower court, upheld the ruling of the trial court denying a motion to recuse.   None of these cases involved direct evidence of bias which had adversely impacted the defendant's case at the time the motion to recuse was brought.

 Neither the defendant nor the Attorney General have called our attention to any case in which the conflict was so clearly established as it is here.   It is notable that Moulin's statement to Commissioner Garfinkel was that there could be “no district attorney offer,” not that he was unwilling to enter into a plea bargain.   In light of that fact and of the absence of evidence as to how the trial deputy became aware of the prior case, of his position in the office relative to the deputies involved in the prior prosecution, or of alternative, less expansive methods of addressing the conflict, we cannot say that the trial court abused its discretion in recusing the district attorney's office rather than a particular deputy or deputies.   The trial court could reasonably infer from the evidence that the deputy district attorney's position reflected a policy or instruction formulated by higher authority in his office.

 Before concluding this discussion, we emphasize what we are not deciding.   We are not directing that the prosecutor offer a plea bargain to Andujo or to any defendant.   Whether a plea bargain is offered or not is within the province of the prosecutor alone.  (People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193.)   The trial court may accept or reject the plea bargain reached by the prosecutor and defense counsel, but it may not insist that a particular offer be made or that the prosecutor plea bargain at all.   It is not for the courts to dictate such pleas.   Certainly, the reasons proffered at the recusal hearing for the refusal to bargain were more than enough if they truly had been the reason for the decision.   The trial court found that they were not, but that they were pretextual for an improper rationale.   We expect that the Attorney General will decide whether or not to offer a plea bargain on the basis of the merits of the case.

DISPOSITION

The trial court's order recusing the Los Angeles County District Attorney's Office from the prosecution of this matter is affirmed.

FOOTNOTES

1.   Andujo's codefendant, represented by counsel, was found guilty of voluntary manslaughter.

2.   According to a declaration by respondent's attorney, filed in the trial court, Mr. Jonas was a co-prosecutor with Mr. Crisci in the Andujo homicide case.

3.   Section 1424 provides:  “Notice of any motion to disqualify a district attorney from performing any authorized duty shall be served on the district attorney and the Attorney General at least 10 days before the motion is heard.   The notice of motion must set forth a statement of the facts relevant to the claimed disqualification and the legal authorities relied upon by the moving party.   The Attorney General may appear at the hearing on the motion and may file with the court hearing the motion a written opinion on the disqualification issue.   The motion shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.   An order recusing the district attorney from any proceeding may be appealed by the district attorney or the Attorney General.   The order recusing the district attorney shall be stayed pending any appeal authorized by this section.  [¶]  An appeal from an order of recusal from a superior court or from a case involving any charges punishable as a felony shall be made pursuant to Chapter 1 (commencing with Section 1235) of Title 9, regardless of the court in which the order is made.   An appeal from an order of recusal in a misdemeanor case shall be made pursuant to Chapter 2 (commencing with Section 1466) of Title 11.”

EPSTEIN, Associate Justice.

ARLEIGH M. WOODS, P.J., and GEORGE, J., concur.