WILLIAMS v. PEOPLE

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

Ralph WILLIAMS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

No. B029019.

Decided: February 19, 1988

Hufstedler, Miller, Carlson & Beardsley, Otto M. Kaus, Los Angeles, Patterson & Munt and James E. Patterson, Whittier, for petitioner. No appearance for respondent. Ira Reiner, Dist. Atty., Donald J. Kaplan and Patrict D. Moran, Deputy Dist. Attys., John K. Van de Kamp, Atty. Gen., Steve White, Mark Alan Hart and Sharlene A. Honnak, Deputy Attys. Gen., for real party in interest.

Ralph Williams purports to appeal from a judgment granting the People's petition in superior court for writ of mandate directing the Municipal Court of the Whittier Judicial District to vacate its order of March 6, 1987, recusing the District Attorney of Los Angeles County as the prosecutor in an underlying criminal case in which Williams and others, including the City of Whittier, were charged with unlawful disposal of hazardous waste.

PROCEDURAL BACKGROUND

In September 1986 the Los Angeles County District Attorney filed a criminal complaint wherein the City of Whittier (hereinafter City) was charged with one felony count of violation of Health and Safety Code section 25189.5, subdivision (b), (unlawful disposal of hazardous waste), and four City employees, including Williams, were each charged with one misdemeanor count of violation of the above code section.

In January 1987, the City of Whittier filed Notice and Motion to Disqualify (or Recuse) the District Attorney's Office of Los Angeles County on the grounds of an apparent and actual conflict of interest because the City, by contract, employs the district attorney to prosecute violations of all municipal penal ordinances of the City and because the district attorney's office is the legal advisor to the City police department on all criminal matters including misdemeanors as well as felonies, such that there is a close working relationship between the City and the district attorney's office.   The four individual City employees joined in City's motion and Williams filed his own motion to recuse the district attorney based on the declaration of his attorney stating that in January 1986 the health department began an investigation into the cleaning of paint spray guns whereby paint and paint thinner were allegedly put into a sump at the City yard;  the health department contacted the district attorney's office, which began a criminal investigation of the City and its employees;  that in May 1986, two representatives of the district attorney's office had a conference with some City employees, including Williams, and discussed the placement of paint and paint thinner in the sump;  Williams was never advised that he was the subject of a criminal investigation and was led to believe he was not.

After hearing before Judge Adden in the Municipal Court of the Whittier Judicial District on March 6, 1987, the court granted the motion to recuse the district attorney, concluding that the General Services Contract between the county and the City created a client and employee relationship between the district attorney's Office and the City and that as to the City there was an actual as well as apparent conflict.

On about March 30, 1987, the People filed in the Los Angeles County Superior Court a petition for writ of mandate and/or prohibition directing the judge of the municipal court, who was denominated as a magistrate in the petition, to vacate his recusal order.   In the points and authorities accompanying the petition, the People stated:  “There is no indication that the District Attorney's Office is biased against the city․ If anything, the contractual relationship between the City and the County might cause the District Attorney's Office to be biased in favor of the City.   That would not deprive the City of its right to a fair trial.”

After hearing on April 16, 1987, the court made the following order:  “Petition for Writ of Mandate is granted.   Recuses any district attorneys having business with the City of Whittier and any district attorneys are not to communicate with any district attorney in the Environmental Protection Unit of the District Attorney's Office.”   Real parties in interest, the City and all four individual City employees, filed timely notices of appeal from the judgment granting the People's petition for writ of mandate.   Having been informed prior to oral argument in this court that the underlying criminal charges as to the City and three of the other City employees had been dismissed, we dismissed their appeals, leaving only the appeal of Ralph Williams.

I

APPEALABILITY OF JUDGMENT GRANTING PETITION FOR WRIT OF MANDATE

Code of Civil Procedure section 904.1 provides in pertinent part:  “An appeal may be taken from a superior court in the following cases:  [¶] (a) From a judgment, except ․ (4) a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court.   However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition upon petition for an extraordinary writ.”

By somewhat convoluted reasoning, appellant contends that the instant judgment is outside the ambit of the exclusion from appealability in section 904.1, subdivision (a)(4) because Judge Adden was sitting as a magistrate, not a judge of an inferior court, and his order was not within the trial jurisdiction of any court.   Thus, according to appellant, the writ was not directed to a municipal or justice court or judge thereof and did not relate to a matter “pending” in the municipal court.   To support his argument, appellant cites cases dealing with the construction of other statutes containing the words “court” or “judge” and addressing the issue of whether those statutes applied to magistrates.   Appellant assumes, without advancing any authority, that Judge Adden was acting in the capacity of a magistrate in the instant case because Williams's misdemeanor count was joined with a felony count against the City and the City was apparently awaiting a preliminary hearing in the municipal court.

 In order to determine the appealability of the judgment herein, we do not need to decide in which capacity Judge Adden was acting, nor if he could properly hear such motion to recuse in his capacity as magistrate, because we conclude that section 904.1, subdivision (a)(4) applies to the writs directed at municipal court judges as well as magistrates with respect to matters pending in the municipal court.   Further, appellant's matter was “pending in the municipal court” within the meaning of the statute whether or not appellant's misdemeanor count was properly joined with City's felony count and whether or not the felony matter was before the magistrate awaiting a preliminary hearing.

The history of section 904.1 evidences the strong legislative purpose to close the “loophole” in the former statute that permitted an unsuccessful municipal court pretrial litigant to appeal an adverse writ ruling by the superior court to the court of appeal as a matter of right whereas the appellate department of the superior court is usually the state court of last resort for appeals and whereas an unsuccessful pretrial litigant in superior court was only entitled to discretionary review on the merits by writ in the court of appeal.  (See Gilbert v. Municipal Court (1977) 73 Cal.App.3d 723, 728–732, 140 Cal.Rptr. 897.)

“The provision in Code of Civil Procedure [former] section 904.1 that established the right of a misdemeanor defendant to appeal to this court from a superior court's denial of a writ directed at the municipal court was a highly criticized ‘loophole’ ․ that provided more stages of review for misdemeanor defendants than for felony defendants.   The Legislature eliminated this type of appeal by amending Code of Civil Procedure section 904.1, subdivision (a)(4), effective January 1, 1983.”  (Avila v. Municipal Court (1983) 148 Cal.App.3d 807, 810, 196 Cal.Rptr. 286.)   Because we are required to interpret statutes in a manner calculated to give effect to the intent of the Legislature (Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352), we reject appellant's contentions and conclude that section 904.1, subdivision (a)(4) was intended to apply to the instant judgment.   Were we to adopt appellant's interpretation of the statute, we would be creating another loophole.   We also note parenthetically that had appellant's motion to recuse been made after the City's felony count had been dismissed or had such felony count not been joined with appellant's count, appellant would have no basis to claim that his misdemeanor case was not pending in the municipal court.

 Although the instant judgment is not appealable, we choose to exercise discretion to treat the purported appeal as a petition for writ of mandate because it presents a question of public importance and the parties have fully briefed the propriety of the trial court's granting of the People's writ.   Moreover, to relegate appellant to the remedy of appeal from a judgment of conviction, after being prosecuted by the district attorney, is to risk a retrial upon a successful appeal, causing more burden and expense to the judicial system.   The fact, as mentioned in the briefs, that appellant in June 1987 petitioned this court for writ of mandate and/or prohibition, which petition was denied, does not bar us from treating the purported appeal as a new petition for writ of mandate as the denial, without opinion, of a petition for writ of mandate or prohibition is not res judicata except when the sole possible ground of denial was on the merits or it affirmatively appears that the denial was intended to be on the merits.  (People v. Durrett (1985) 164 Cal.App.3d 947, 955, 210 Cal.Rptr. 874.) 1

II

ERROR IN GRANTING PETITION FOR WRIT OF MANDATE

Appellant contends the issuance of the writ was improper because Judge Adden's order of recusal of the entire district attorney's office was supported by substantial evidence of an actual and apparent conflict of interest affecting the district attorney's office.   Respondent, on the other hand, claims issuance of the writ was not an abuse of discretion because no evidence was presented showing the existence of confidential or privileged information or actual bias by the district attorney such that it would be unlikely appellant would receive a fair trial.   Both agree that the issue is governed by Penal Code section 1424.

 “In 1980 the Legislature enacted section 1424, which provides, in relevant part, ‘The motion [to recuse] 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.’  ․ While section 1424 does not specify whether the disqualifying conflict must be ‘actual’ or need only generate the ‘appearance of conflict,’ in either event, the conflict must be of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered.”  (People v. Conner (1983) 34 Cal.3d 141, 146, 193 Cal.Rptr. 148, 666 P.2d 5.)   This section contemplates both “actual” and “apparent” conflict when the presence of either renders it unlikely that defendant will receive a fair trial.  (Ibid.)  Thus, a conflict within the meaning of section 1424 exists whenever the circumstances of a case evidence a reasonable possibility that the district attorney's office may not exercise its discretionary function in an evenhanded manner so as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.  (Id., at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)

 The prosecutor 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.’ ”  (People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 137 Cal.Rptr. 476, 561 P.2d 1164, quoting Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321.)   It is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof.  (19 Cal.3d at pp. 266–267, 137 Cal.Rptr. 476, 561 P.2d 1164.)

On the record before us, we conclude that the superior court abused its discretion in granting the People's petition for writ of mandate.  (See People v. Municipal Court (Byars) (1978) 77 Cal.App.3d 294, 298, 143 Cal.Rptr. 491.)   Uncontradicted evidence presented by Williams and the others charged with him established that the district attorney's office acts as legal advisor to the City of Whittier Police Department and that the police department has a close working relationship with the district attorney's office.   Moreover, representatives of the district attorney's office, in the course of their investigation into the cleaning of paint spray guns in a City sump, had a conference with Williams and other City employees at which there was a discussion of the disposal of the paint from the spray guns.   Williams was not advised that he was then the subject of a criminal investigation and was also apparently led to believe that he was not the subject of a criminal investigation, and cooperated fully in the investigation.

Thus, there is ample evidence of the appearance of or actual abuse by the district attorney's office of its close working relationship with the City of Whittier to further the course of its criminal investigation of the City and its employees.   The People argue that the City of Whittier is not a client of the district attorney's office even though the City may employ or pay the prosecutor's salary because the City does not control the prosecutorial functions, and the district attorney does not therefore violate the ethical prohibition against taking a position adverse to a “client” by prosecuting this case.   Whether the City is or is not a “client” is not dispositive;  what is significant under the provisions of Penal Code section 1424 is the actual or apparent unfairness of an investigative procedure whereby investigators have the opportunity to take advantage of Williams' trust and confidence because of the close working relationship between the City and the district attorney's office.   As a consequence of this conflict, the superior court's modification of the recusal order, which recused only the district attorneys working in the City of Whittier but not those in the Environmental Protection Unit, does nothing to alleviate the apparent impropriety.

The People also maintain that there are no cases which uphold a disqualification of the prosecutor because of a relationship with the accused resulting from his official duties.   In other words, the People maintain that in order for there to be a conflict under Penal Code section 1424, the conflict must involve factors extraneous to the prosecutor's official functions.   While there is language to that effect in People v. Municipal Court (Byars), supra, 77 Cal.App.3d 294, 298–299, 143 Cal.Rptr. 491, a pre–1980 case, it must be considered in connection with the facts of that case, which are not those here.   In People v. Municipal Court (Byars), the court found nothing in the record showing an actual or apparent impairment of prosecutorial impartiality where the city attorney was prosecuting defendants for battery and resisting a public officer at the same time the city attorney was attorney for the city and would defend the city and its officers against defendants' claims for damages in a civil action arising out of the same incident giving rise to the criminal complaint.

 The situation in that case is entirely different than here where the City and its employees are charged with crimes.   Further, we find no requirement in Penal Code section 1424, nor in the cases interpreting that section, mandating that the conflict arise from factors extraneous to the prosecutor's official function.   Moreover, the parties do not cite to us any case involving the situation where the district attorney's office is the prosecuting agency for the municipality which it also seeks to prosecute, along with some city employees, for criminal violations.   We therefore conclude that in the instant case, the reality of or potential for an abuse of one of the district attorney's functions renders it unlikely the defendant would receive evenhanded treatment or a fair trial.   The fact that the criminal charges against the City and the other employees have now been dismissed, leaving Williams as the sole defendant, only contributes to the appearance of impropriety inherent in the present situation.   We are mindful that the court should exercise particular caution in cases such as this where the issue is whether an entire prosecutorial office rather than a single prosecutor should be recused.  (People v. Lopez (1984) 155 Cal.App.3d 813, 821–822, 202 Cal.Rptr. 333).   However, the circumstances of this case evidence a reasonable possibility that the proper administration of criminal justice, as well as its appearance, can only be furthered by the recusal of the entire office of the Los Angeles County District Attorney.

In light of the above conclusion, we need not address Williams's other contentions.

DISPOSITION

The purported appeal is deemed to be a petition for writ of mandate.   Let a peremptory writ of mandate issue commanding the superior court to vacate its judgment (order) of April 16, 1987, and to enter in place thereof an order denying the People's petition for writ of mandate and/or prohibition.   Williams is to receive his costs on appeal.

FOOTNOTES

1.   Apparently unsure of the proper method of review of Judge Adden's order, the People simultaneously with the petition for writ of mandate filed a notice of appeal in the municipal court.   When this fact was pointed out at oral argument on the petition for writ of mandate and when Williams' attorney asked the court to strike the notice of appeal, the People stated it “would withdraw notice of appeal at the moment.”   We thus deem the notice of appeal to have been abandoned upon the People's election to proceed below by petition for writ of mandate rather than by appeal to the appellate division of the superior court, and whatever right the People had to such an appeal has now been lost.   Appellant raises the issue on appeal that the writ to the superior court was inappropriate as the People had a plain, speedy and adequate remedy by appeal, authorized by Penal Code section 1424.   We do not address this issue because we have resolved this case on another ground, as discussed below;  however, we note that it was the People's own choice of procedure below, whether correct or not, which renders our review appropriate under Code of Civil Procedure section 904.1, subdivision (a)(4).

LILLIE, Presiding Justice.

THOMPSON and JOHNSON, JJ., concur.