PEOPLE v. CONNER (1982)

The People appeal from an order of the superior court recusing the Santa Clara County District Attorney's Office (the District Attorney's Office) from prosecuting defendant James Edward Conner.   The questions on appeal are:  (1) whether Penal Code section 1424 ¹ is the controlling law regulating recusal of prosecutors in a criminal case;  and (2) whether the record demonstrates evidence sufficient to meet the section 1424 standard for prosecutorial recusal.

FACTS

In July and August 1980, Conner was charged by two informations with armed robbery, burglaries, possession of stolen property and forgery.   These informations were prepared by Deputy District Attorney Rod Braughton (Braughton) and assigned to him for prosecution.   Braughton is director of the three-attorney career-criminal unit of the District Attorney's Office.

On February 17, 1981, Conner, in the custody of a deputy sheriff, was waiting in a jury room for commencement of a trial on the robbery and burglary charges.   Braughton, who was prosecuting the case, was speaking with the judge in the courtroom.   Braughton heard loud noises and a gunshot hitting the wall.   He ran to the jury room where he saw Conner holding a revolver;  the deputy sheriff, who had been stabbed and shot, was bent over behind Conner.   Braughton and Conner established eye contact.   Conner immediately pivoted and swung his left arm with the revolver toward Braughton.   Braughton turned and ran from the room.   As he left, he heard a gunshot and saw a bullet hole in the wall approximately two feet from where he had been standing.   It is unclear whether that hole was made then or by the shot fired prior to the time Braughton entered the room.

Braughton reported the incident to his immediate supervisor, and made a written report to Santa Clara District Attorney Louis Bergna.   He also spoke with about 10 of the 25 deputy felony prosecutors in the office about the event.   In addition, he was interviewed by the news media shortly after the shooting.   Braughton was quoted or paraphrased in some reports to the effect that Conner was a dangerous convicted felon and an escape risk.

Subsequently, all cases against Conner were assigned to Deputy District Attorney Nudelman (Nudelman).   Nudelman was one of the 25 felony prosecutors in the Santa Clara Office but was not a member of the career-criminal prosecution unit.   Braughton testified that he and Nudelman are not close friends but do see each other every week at the felony deputies meeting.   Braughton did not discuss the case with Nudelman before it was charged.

Conner moved for recusal of the entire Santa Clara County District Attorney's Office for the robbery, burglary and forgery charges and for the charges arising out of the February 17 incident.   The court denied the motion in the first case, finding neither a conflict of interest nor prejudice to Conner.   However, in this case, the court granted the motion because Braughton was “intimately connected” to the charges against Conner.

DISCUSSION

Prior to 1981, no statute addressed recusal of prosecuting attorneys.   In People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, our Supreme Court established the standard for disqualifying a district attorney from a prosecution.   The court held that “a trial judge may exercise his power to disqualify a district attorney from participating in the prosecution of a criminal charge when the judge determines that the attorney suffers from a conflict of interest that might prejudice him against the accused and thereby affect or appear to affect, his ability to impartially perform the discretionary functions of his office.”  (Id., at p. 269, 137 Cal.Rptr. 476, 561 P.2d 1164.)

In 1981, the Legislature enacted section 1424.   This section provides in pertinent part:  “The motion [to disqualify a district attorney from prosecuting a case] 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.”

Section 1424 appears to alter the Greer standard.   In Greer it was sufficient if the conflict of interest affected or appeared to affect the impartiality of the district attorney's office;  under section 1424 the conflict of interest must make it unlikely that a fair trial could be had.

 To support his recusal motion, Conner argues that Greer, rather than section 1424, provides the controlling law for recusal.   He bases his contention on People v. Savala (1981) 116 Cal.App.3d 41, 171 Cal.Rptr. 882, which held that under the doctrine of stare decisis, a statute had to be construed according to the Supreme Court decision interpreting the statute despite a subsequent legislative amendment stating that the statute's intended purpose was contrary to the Supreme Court holding.

We find Savala to be inapposite here.  Savala dealt with an entirely different set of facts.   The Supreme Court in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, construed Penal Code sections 1170.1, subdivision (a) and 667.5, subdivision (c), to preclude enhancement for an offense if it was not specifically listed in section 667.5, subdivision (c).   A year later, the Legislature amended section 1170.1 and stated explicitly that enhancement under section 1170.1 was not limited to the specific felonies listed in section 667.5, subdivision (c).   The issue before the Savala court was what effect, if any, should an appellate court give to a legislative amendment when the criminal offense occurred prior to both the Supreme Court decision and the amendment.  (People v. Savala, supra, 116 Cal.App.3d at p. 56, 171 Cal.Rptr. 882.)   The court stated:  “A subsequent expression of the Legislature as to the intent of a prior statute is not binding on the court ․”  (Id., at p. 59, 171 Cal.Rptr. 882, emphasis added.)

This case, however, does not involve a higher court's prior opinion construing a statute.   The Greer holding was based on the inherent powers of the trial court to supervise judicial proceedings.  Section 1424 is a new statute;  stare decisis has nothing to do with legislating new procedures in a field formerly governed by decisional law.   Because Conner committed the offense after the statute's effective date, section 1424 is applicable.²

 The motion for recusal of the District Attorney's Office was supported by Braughton's testimony that:  (1) he might have been the victim of Conner's uncharged assault with a deadly weapon;  (2) he may be called as a witness at the trial;  (3) the incident received a great deal of publicity so that the entire District Attorney's Office was probably aware of Braughton's involvement;  and (4) Braughton had given a television interview in which he characterized Conner as a “dangerous felon and an escape risk.”

The District Attorney's Office is clearly and directly (albeit inadvertently) involved in the case.   An eight-year veteran of the office was allegedly shot at and narrowly escaped grave injury.   He will probably be called as a witness for the prosecution at Conner's trial on the charges arising out of the February 17 incident.   The case has been assigned to Nudelman, one of the other 25 felony deputy prosecutors.   Although Braughton testified that he was not a close acquaintance of Nudelman, he does see him each week at the felony deputy meetings;  thus, Nudelman is probably quite familiar with Braughton's connection with the case.

A conflict of interest is defined as a conflict between private interests and official responsibilities.

“The prosecutor is a public official vested with considerable discretionary power to decide which crimes are to be charged and how they are to be prosecuted.  [Citations.]”  (Greer, supra, 19 Cal.3d at p. 266, 137 Cal.Rptr. 476, 561 P.2d 1164.)  “[H]e ‘is the representative not of any ordinary party to the 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.’  [Citations.]”  (Ibid.)  “One of the reasons often cited for the institution of public prosecutions is that ‘Americans believed that an officer in a position of public trust could make decisions more impartially than could the victims of crimes or other private complainants,’ persons who often brought prosecutions under the older English system of criminal justice.  [Citations.]”  (Id., at p. 267, 137 Cal.Rptr. 476, 561 P.2d 1164.)

Because a senior member of the District Attorney's Office is involved in a criminal incident that received television, radio and press coverage and was widely discussed at the office, the trial court could reasonably conclude that a conflict of interest existed between the District Attorney's Office and Conner.

This case is factually distinguishable from Kain v. Municipal Court (1982) 130 Cal.App.3d 499, 181 Cal.Rptr. 751, the only appellate court case applying section 1424.   In Kain, the defendant argued that a conflict of interest existed because a Ventura County deputy district attorney was representing defendant's minor children in a juvenile proceeding and another deputy district attorney from the same office represented the state in a criminal case charging him with sex crimes against his children.   Further, the deputies involved in each proceeding had attempted to schedule the preliminary hearing and the dependency hearing within a few days of each other for the benefit of the children.  (Kain v. Municipal Court, supra, 130 Cal.App.3d at pp. 502–503, 181 Cal.Rptr. 751.)   On these facts the court found no conflicting personal interests which might prejudice the prosecutor against the accused, there was “no evidence of anything other than the district attorney's normal professional involvement in the matter.”  (Id., at p. 503, 181 Cal.Rptr. 751.)

Our case is also distinguishable from People v. Municipal Court (Henry) (1979) 98 Cal.App.3d 690, 159 Cal.Rptr. 639, where the court, applying the Greer standard, denied a recusal motion.   There the defendant was charged with tire-slashing and a deputy district attorney, not involved in the prosecution of the case, was the victim of a similar incident.   The court found that that situation did not generate sufficient personal or emotional involvement of the district attorney to establish the presence or appearance of bias.  (Henry, supra, at p. 693, 159 Cal.Rptr. 639.)

The case at bar is comparable factually to Greer.   In Greer, a defendant was charged with murdering the son of the “discovery clerk” in the district attorney's office responsible for prosecuting the case.   The prosecution's theory was that the murder arose out of a dispute between the victim and his former wife about custody of their child.   The victim's mother was very familiar with the dispute and was to be a material witness for the prosecution.   The conflict of interest found in Greer was based on the district attorney's potential conflicting personal interest or emotional stake in the outcome which might undermine his exercise of impartial judgment in pretrial and trial proceedings.  (Greer, supra, 19 Cal.3d at p. 270, 137 Cal.Rptr. 476, 561 P.2d 1164.)

Because the District Attorney's Office is “intimately connected” with this case, recusal will ensure that Conner is prosecuted by an agency which harbors no personal animosity towards him and has no emotional stake in the outcome of the action.   The Attorney General can be expected to perform all discretionary functions in an unbiased manner, based solely on the nature of the charges and evidentiary merits of the case, something the superior court found the District Attorney's Office may be unable to do.   We emphasize that we do not hold nor do we suggest that any altercation, no matter how slight, between a defendant and a deputy district attorney, justifies recusal of the deputy or the entire district attorney staff of lawyers.   We hold only that under the facts of this case, there is substantial evidence to support the trial court's implicit determination that “a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.”  (§ 1424.)

 The decision of a trial court on a motion to recuse will be overturned only if the court abused its discretion.  (Kain v. Municipal Court, supra, 130 Cal.App.3d at p. 504, 181 Cal.Rptr. 751.)   Under the facts here, we cannot say that the trial court abused its discretion.

The order granting recusal is affirmed.

FOOTNOTES

1.   All statutory references hereinafter are to the Penal Code, unless otherwise indicated.

2.   For purposes of this case, we assume the validity of section 1424, but see Greer, supra, 19 Cal.3d at pages 264–265, 137 Cal.Rptr. 476, 561 P.2d 1164.

FEINBERG, Associate Justice.

WHITE, P.J., and SCOTT, J., concur.