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Court of Appeal, First District, Division 3, California.

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF CONTRA COSTA, Respondent; John Michael GREER and Rose Betty Anderson aka Rose Betty Iacopetti, Real Parties in Interest.

Civ. 38353.

Decided: June 03, 1976

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for petitioner. Patrick R. Murphy, Public Defender, Charles H. James, Asst. Public Defender, Contra Costa County, Martinez, for respondent and real party in interest Anderson. Michael Oliver, Pleasant Hill, for real party in interest Greer. Ephraim Margolin, Nicholas C. Arguimbau, San Francisco, amicus curiae.

By this petition for writ of mandamus/prohibition, the People challenge orders of the superior court removing the District Attorney of Contra Costa County as prosecutor in a criminal case and ordering the Attorney General to appear at a readiness conference and at a hearing under Penal Code section 995.

Real parties in interest (Greer and Anderson) are charged in the superior court with the murder of Anderson's former husband (hereafter the victim). At all stages of the proceedings, real parties sought to have the district attorney removed from the case on the ground of conflict of interest. While an indictment (later dismissed) was pending, they requested both the Attorney General and the Governor to remove the prosecutor. These requests were refused. At the preliminary examination they made a motion for removal. After a hearing, the magistrate denied the motion.

After the information was filed, real parties moved in the superior court to dismiss and/or recuse the prosecutor, stating the same arguments presented to the municipal court. At the hearing on the motions, counsel stipulated that the preliminary transcript would be received in evidence and used by the court in deciding the motion. The matter was argued and submitted. The court ordered that the district attorney be removed from the case. Pursuant to a show cause order issued that same day, the Attorney General appeared on January 20, 1976, and moved to vacate the orders. That motion was denied and the court ordered the Attorney General to appear for readiness conference and 995 motion disposition. No reasons were given for the granting of the motions. However, in view of the fact that only the preliminary hearing transcript was entered in evidence, the court's reasons must be supported by the evidence presented there.

The motion in the municipal court was based on the following asserted facts: (1) Martha Anderson, the mother of the victim, is an employee of the district attorney; (2) Martha is a material witness on the issue of motive (it appears that a motive for the murder may have involved custody of the child of the victim and real party Rose Anderson); (3) Martha may gain custody of her grandchild if real parties are convicted.

At the preliminary hearing, the following facts were presented: (1) Martha Anderson had been employed by the district attorney's office for 14 months as a discovery clerk; (2) she had been interviewed by the police right after the killing, regarding the custody battle; (3) she had testified and observed in court numerous times during the custody battle; (4) she presently had on file a guardianship petition which would be reconsidered after the decision in the criminal case; (5) she had discussed the case with other employees; (6) she had never processed materials related to the case. In the superior court the motion was made on the same grounds stated above, and the points and authorities were essentially identical. In addition, a declaration by defense attorneys was submitted. The declaration alleged the same points and facts with regard to Martha, and also mentioned that Judy Anderson (decedent's widow) had conveyed various documents about real party Rose Anderson, taken from the custody proceedings file, to the police department.

We turn first to the question of the superior court's power to replace the prosecutor. It is true, of course, that every court has the inherent power to regulate the proceedings of matters before it and to effect an orderly disposition of the issues presented. (Code Civ.Proc., § 128; see People v. Miller (1960) 185 Cal.App.2d 59, 77, 8 Cal.Rptr. 91.) Cases which recognize this power have applied it in instances where, unless the power were exercised, proceedings before a court would be frustrated or delayed as, for example, where the district attorney failed to attend a trial (Pen.Code, § 1130), or where he was himself charged with a crime (see Sloane v. Hammond (1927) 81 Cal.App. 590, 607, 254 P. 648). But even in the latter situation, the inherent power of the court to replace the prosecutor has been deemed ‘perhaps justly to be termed secondary in the face of legislation upon the subject’ (Sloane, at p. 607, 254 P. at p. 655).

We agree that the power of the court to replace a disqualified prosecutor should be secondary to that of the Attorney General. Such a holding does not divest the court of its inherent powers. As was stated in Sloane v. Hammond, supra, ‘Doubtless, if section 472 of the Political Code [now section 12553 of the Government Code] had no existence, or if the Attorney General had neglected to discharge the duty thrust upon him by it, the superior court in and for the county of San Diego could have appointed petitioner to conduct the prosecution of the indicted district attorney.’ (81 Cal.App. at p. 607, 254 P. at p. 655.) We interpret that language to vest power in the courts only when the Attorney General has failed to act upon a request to enter the case or to appoint a special prosecutor. Here the Attorney General did not neglect to discharge his duty. He exercised his primary right to make the decision by deciding that the district attorney was not disqualified.

If the Attorney General makes a decision upon a request to replace the prosecutor, and that decision is claimed to be an abuse of discretion, a defendant is not left without recourse by our holding. Certainly he is entitled to judicial review in appropriate proceedings. (Cf. Hollman v. Warren (1948) 32 Cal.2d 351, 355–356, 196 P.2d 562.)

Our research has disclosed no case which contains a clear holding on the issue of the court's power to disqualify. Those cases which deal with the power to appoint (Sloane v. Hammond, supra; Toland v. Ventura (1902) 135 Cal. 412, 67 P. 498) have indicated that such power rests in the Attorney General. The logical import of these decisions is that the power to disqualify is also vested, at least primarily, in the Attorney General. This principle is aptly stated in People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 208, 103 Cal.Rptr. 645, 656, as follows: ‘Aside from the power of the electorate to remove the district attorney, the latter's performance is subject to the supervision of the Attorney General. (Citations.) Nothing in the Constitution or statute law of this state gives to any court a similar power of supervision or control over the official conduct of the district attorney.’

The Constitution (art. 5, § 13) provides: ‘Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced. . . . Whenever in the opinion of the Attorney General any law of the State is not being adequately enforced in any county, it shall be the duty of the Attorney General to prosecute any violations of law of which the Superior Court shall have jurisdiction, and in such cases the Attorney General shall have all powers of a district attorney. When required by the public interest or directed by the Governor, the Attorney General shall assist any district attorneys in the discharge of the duties of that office.’ Substantially similar provision is made by statute (Gov.Code, § 12550). This vesting of prosecutorial power in the Attorney General, subject only to the direction of the Governor, seems clearly to designate that power as one to be exercised by the executive branch of government. Infringement of the judiciary upon the power of the executive is quite as much prohibited, under our constitutional separation of powers, as is the reverse infringement by the executive upon the courts. (People v. Smith (1975) 53 Cal.App.3d 655, 658–660, 126 Cal.Rptr. 195.) We hold that, under the facts of this case, where the Attorney General has made a decision not to disqualify, the superior court had no power to remove the district attorney.

We hold further that, even if the power to disqualify existed, that power was here abused. The drastic remedy of disqualification is by no means necessary to protection of the rights of a defendant in a criminal case. The broad panoply of his rights is familiar to all who read the appellate decisions in criminal cases. Our adversary system requires that a district attorney be vigorous in the prosecution of crime, but the applicable rules require fixed restraints upon his conduct. Every court has the inherent power to regulate the proceedings and to control the conduct of all persons connected with a judicial matter before it. (Code Civ.Proc., § 128; People v. Miller, supra, 185 Cal.App.2d 59, 77, 8 Cal.Rptr. 91.) Alerted as it is to whatever possibility there is of over-avidity, the trial court has adequate means of effective control. Here, the sole asserted incentive to misconduct is the presence of one minor clerical employee in a large office staff. That connection is too tenuous and remote to support the wholly speculative theory that it will induce the prosecution to risk trial court sanctions and appellate reversal. We find it quite as difficult to disqualify a prosecutor because he seeks conviction as we would to disqualify defense counsel because he vigorously seeks acquittal. To open either avenue would but lead to the mischief and injustice of delay. Upon the facts here, we hold that discretion, even if it existed, was abused.

Let a peremptory writ of mandate issue, directing the trial court to vacate its order disqualifying the district attorney and its order directing the Attorney General to appear.

I concur in the judgment and, with one exception, in the opinion. I should, however, prefer to add to the stated limitation upon the rights of the courts to remove a prosecutor the caveat ‘except for the situation where the district attorney is himself charged with a crime.’ (People v. Municipal Court, supra, 27 Cal.App.3d 193, 208, 103 Cal.Rptr. 645, 656; see also Sloane v. Hammond, supra, 81 Cal.App. 590, 607, 254 P. 648.) In such a case, it seems clear that a decision of an Attorney General not to supersede the county prosecutor should and would be overridden. Although that situation seems unlikely, I prefer to avoid any possibility of forestalling now the court action which would be required if some future occasion requires it. The majority's limitation of its rule to ‘the facts of this case’ may be adequate, but it might be deemed qualified by the phrase immediately following it.



EMERSON, Associate Justice.* FN* Retired Judge of the Superior Court, assigned by the Chairman of the Judicial Council.

HAROLD C. BROWN, J., concurs.