Jensen v. Super. Ct. ( 2021 )

Filed 5/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JAMES JENSEN, H048548
(Santa Clara County
Petitioner, Super. Ct. No. C2010724)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Petitioner James Jensen is charged as a coconspirator in a felony indictment
alleging a quid pro quo scheme under which members of the Santa Clara County
Sheriff’s Department issued hard-to-obtain concealed firearms permits in exchange for
substantial monetary donations to an independent expenditure committee supporting the
reelection campaign of Santa Clara County Sheriff Laurie Smith. Jensen is a sheriff’s
department captain identified in the indictment as the individual within the sheriff’s
department who facilitated the conspiracy.
Jensen moved to disqualify the Santa Clara County District Attorney’s Office
from prosecuting him, alleging that the district attorney’s office leaked grand jury
transcripts to the press four days before the transcripts became public which created a
conflict of interest requiring disqualification. He also joined in codefendant Christopher
Schumb’s motion to disqualify the office due to Schumb’s friendship with both Santa
Clara County District Attorney Jeff Rosen and Rosen’s chief assistant, Jay Boyarsky.
The trial court denied the disqualification motions without holding an evidentiary
hearing, and Jensen now seeks writ relief here. Jensen argues the trial court should have
granted his motion because he identified three bases for finding a conflict of interest
requiring disqualification: the grand jury transcript leak; Schumb’s relationships with
Rosen and Boyarsky; and a dispute between Rosen and Sheriff Smith about access to
recordings of county jail inmate phone calls. For the reasons stated here, we will deny
Jensen’s petition.
I. TRIAL COURT PROCEEDINGS
A. INDICTMENT ALLEGATIONS
Jensen is charged by indictment with 10 felony counts: conspiring to bribe an
executive officer (Pen. Code, §§ 182, 67); bribing an executive officer (Pen. Code, § 67);
conspiring to file a concealed carry application with a false statement (Pen. Code,
§ 26180, subd. (a)); and seven counts of falsifying a public record by a custodial officer
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(Gov. Code, § 6200). Jensen’s alleged coconspirators are Christopher Schumb (a private
attorney), Harpaul Nahal (a private attorney), and Michael Nichols (a local gun parts
manufacturer). Unindicted coconspirators include three men affiliated with a private
executive security company called AS Solution, Inc., among them Martin Nielsen and the
company’s CEO, Christian West. We provide here a factual summary based on the overt
acts alleged in the indictment.
AS Solution provides contract security services for corporate executives. The
company wanted local licenses to carry concealed weapons (CCW licenses), which are
difficult to obtain. Nielsen contacted Nichols about the CCW issue in spring 2018.
Nielsen and West then had lunch with Nichols, Nahal, and Schumb. At that lunch
Schumb described his fundraising efforts for the reelection of Santa Clara County Sheriff
1
Jensen did not include the indictment among the exhibits accompanying his
petition in this court. We rely on the copy of the indictment included in the record for
codefendant Schumb’s petition (case No. H048532).
2
Laurie Smith, and he encouraged Nielsen to attend a SWAT competition where Nielsen
could meet Jensen. Nielsen attended the competition and was introduced to Jensen by
Nichols. The indictment alleges Nielsen and Jensen agreed at that time to the core
conspiracy: “AS Solution’s executive protection agents would receive CCW licenses
issued by the Sheriff in exchange for a donation from the company.”
Nielsen met with Jensen, Nahal, and Nichols in May 2018. They reached an
agreement that AS Solution would receive 10 to 12 CCW licenses in return for a $90,000
donation to support Sheriff Smith’s reelection. Jensen instructed Nielsen to have his
agents use false employer names and positions on their CCW license applications.
Nielsen delivered the completed applications to Jensen in summer 2018. Jensen met with
Schumb at Schumb’s office in fall 2018. Jensen then instructed Nielsen that the first part
of the donation would be $45,000 for a $5,000-per-plate fundraiser for the sheriff’s
reelection campaign. Nielsen delivered a check to Schumb in October 2018 payable to
the “ ‘Santa Clara County Safety Alliance.’ ” Schumb was the assistant treasurer of an
independent expenditure committee with a substantially similar name (the Santa Clara
County Public Safety Alliance), whose purpose was to support Sheriff Smith’s reelection
campaign.
Nielsen complained to Schumb in early 2019 that AS Solution had not yet
received any CCW licenses. Schumb called Jensen. Less than a month later, Jensen
signed shooting range qualification paperwork for Nielsen’s CCW license. Jensen later
administered the firearms qualification training for other AS Solution CCW license
applicants. Nielsen obtained his CCW license in spring 2019, signed by Sheriff Smith.
Jensen later informed Nielsen that he should make the second $45,000 donation to the
“Sheriff’s Advisory Board.”
Based on the foregoing, the grand jury returned the operative indictment against
Jensen, Schumb, Nahal, and Nichols. The indictment was filed in the superior court in
August 2020. In a press release announcing the indictment, District Attorney Rosen was
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quoted as follows: “ ‘CCW licenses should not be given out in exchange for campaign
donations. They should not be for sale.’ ”
B. MOTIONS TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE
Jensen moved to disqualify the entire Santa Clara County District Attorney’s
Office from prosecuting his case, alleging that it was the district attorney’s office who
leaked grand jury transcripts to the press four days before the transcripts were to become
public by operation of law. (Pen. Code, § 938.1, subd. (b).) He asked the trial court to
re-seal the grand jury transcripts. Jensen also joined codefendant Schumb’s motion to
disqualify, in which Schumb argued that his personal relationships with both District
Attorney Rosen and his chief assistant Boyarsky constituted a conflict of interest that
2
made it unlikely Schumb would receive a fair trial.
Jensen’s motion noted the grand jury returned the indictment in early
August 2020. The motion stated his defense counsel received the grand jury transcripts
on August 21, but provided no evidence confirming that date. An article published online
by San Jose Inside, dated August 27, 2020, was included as an exhibit to a declaration
supporting Jensen’s motion. The article quoted verbatim part of Nielsen’s testimony
before the grand jury. Jensen also included another article from the same media
company, dated August 28, 2020, that again quoted the grand jury transcripts and also
included the following: “Though absent from the transcript, witnesses to the proceeding
say that’s when [Sheriff] Smith, visibly overcome with emotion, paused to collect herself
and wipe tears from her eyes.”
Four prosecutors filed declarations contesting Jensen’s allegation that the district
attorney’s office was responsible for the leak: District Attorney Rosen; his chief assistant
Boyarsky; and the two prosecutors present at the grand jury proceedings, Matthew Braker
2
Schumb filed a separate petition in this court (case No. H048532) following the
trial court’s denial of his disqualification motion, which we address in a separate opinion
filed today. That opinion discusses the bases for Schumb’s motion in greater detail.
4
and John Chase. All four prosecutors made the same declaration under penalty of
perjury: Except for the indictment, “I did not disclose to anyone not officially assigned to
this case transcripts or other information about the grand jury proceedings in this case.
Nor did I authorize anyone to do so. Nor am I aware of anyone having done so.”
The court denied Jensen’s and Schumb’s motions to disqualify, and denied
Jensen’s request to re-seal the grand jury transcripts. The court reasoned: “The state of
the evidence now is entirely speculative as to the source of that [grand jury transcript]
leak. I don’t agree that the motive to leak the information had to be the District
Attorney’s Office. [⁋] I simply think there’s plenty of other people who
might have that motive. The leak, frankly, was more about embarrassing the Sheriff than
it was, I think, prejudicing the defendants. So I think there’s a lot of speculation going
on, but I think it’s a serious issue. [⁋] I don’t think an evidentiary hearing is required,
number one, because I don’t think recusal is the appropriate remedy, even if a leak is
determined and the source can be determined. So I think that should be investigated, I
hope it is, but I don’t believe it’s the basis for the recusal of the entire District Attorney’s
Office at this time.”
Jensen petitioned for a writ of mandate or prohibition in this court, arguing the
trial court abused its discretion in denying the disqualification motion. We granted his
request to stay the trial and issued an order to show cause. The Attorney General
opposed the stay and the petition. The Santa Clara County District Attorney’s Office has
not filed pleadings on its own behalf
II. DISCUSSION
A. DISQUALIFICATION UNDER PENAL CODE SECTION 1424
Penal Code section 1424 governs disqualification of a prosecutor: a
disqualification motion “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.”
(Pen. Code, § 1424, subd. (a)(1); hereafter section 1424.) The test for disqualification
5
has two parts. First, the moving party must show a conflict, such that 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; accord People v. Cannedy (2009) 176 Cal.App.4th 1474, 1479–1480
(Cannedy).) Second, to warrant disqualification the conflict must be “ ‘so grave as to
render it unlikely that defendant will receive fair treatment during all portions of the
criminal proceedings.’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 592 (Eubanks).) We
are mindful that section 1424 “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.” (Eubanks, at p. 592.) And the “threshold necessary for
recusing an entire office is higher than that for an individual prosecutor.” (Cannedy,
supra, 176 Cal.App.4th at p. 1481.) We review the trial court’s ultimate decision on
disqualification under the deferential abuse of discretion standard. (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711.) We review any factual findings underlying
the trial court’s decision for substantial evidence. (Ibid.)
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
Jensen raises three distinct issues that he argues demonstrate a conflict of interest
requiring disqualification: the leak of grand jury transcripts; codefendant Schumb’s
personal relationships with Rosen and Boyarsky; and the dispute between District
Attorney Rosen and Sheriff Smith over access to recordings of jail inmate phone calls.
1. Grand Jury Transcript Leak
Criminal grand jury proceedings are governed by statute in California, with many
provisions intended to implement the common law tradition of grand jury secrecy. (Daily
Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1122.) Limited categories of
people are allowed to attend grand jury proceedings. With exceptions not relevant here,
the main categories are prosecutors (generally deputy district attorneys), a stenographer, a
6
witness when he or she is “actually under examination,” and the grand jurors themselves.
(Pen. Code, §§ 935, 938, 939.) If an indictment is returned following grand jury
proceedings, the stenographer must deliver a transcript of the proceedings to the superior
court within 10 days after the indictment is filed. The clerk of the superior court then
distributes copies of the transcripts to the prosecutor and defense counsel. (Pen. Code,
§ 938.1, subd. (a).) The transcript is to remain sealed until 10 days after it is delivered to
the defendant (or his or her attorney). Once that 10 days expires, however, the transcript
becomes “open to the public unless the court ... determines that there is a reasonable
likelihood that making all or any part of the transcript public may prejudice a defendant’s
right to a fair and impartial trial,” in which case the court may seal some or all of the
transcript until after trial. (Pen. Code, § 938.1, subd. (b).)
The facts presented to the trial court on this issue are as follows: Jensen was
indicted in early August 2020, which triggered the statutory duty for the stenographer to
deliver a transcript of the grand jury proceedings to the superior court. Jensen’s motion
stated he received the transcripts by email on August 21, 2020, but provided no evidence
from which we can verify that date. Because the Attorney General does not contest that
delivery date, we will assume its accuracy. An article was published online by San Jose
Inside on August 27, 2020 containing direct quotes from the grand jury transcripts. That
was four days before the transcripts were open to the public under Penal Code
section 938.1, subdivision (b). The next day, San Jose Inside published another article
with more direct quotes from the grand jury transcripts as well as a statement attributed to
a “witness”: that Sheriff Smith “paused to collect herself and wipe tears from her eyes”
during her grand jury testimony. That media outlet is affiliated with Metro Silicon
Valley, the company that the district attorney’s office credited with submitting the tip in
2018 that led to the investigation and prosecution underlying this petition. The grand
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3
jury transcripts became public by operation of law on August 31, 2020. Four members
of the district attorney’s office—District Attorney Rosen, his chief assistant, and the two
deputies who were present at the grand jury proceedings—declared under penalty of
perjury that they did not disclose or authorize disclosure of grand jury transcripts to
anyone, nor were they aware of any such disclosure. In addition to denying Jensen’s
motion to disqualify the district attorney’s office, the trial court denied his request to re-
seal the grand jury transcripts. (Jensen does not challenge in this petition the trial court’s
decision to allow the grand jury transcripts to remain open to the public.)
It is clear from the foregoing that San Jose Inside gained access to the grand jury
transcripts at least four days before they were opened to the public, a serious concern
given the importance of secrecy in grand jury proceedings. It remains a serious issue
even though the practical impact of the access was limited because the transcripts became
public four days after the first article was published. But Jensen provided only
speculation to support his theory that the district attorney’s office was responsible for the
leak. In opposition were declarations by four members of the district attorney’s office
broadly and flatly denying any involvement in the leak. The trial court was entitled to
credit those declarations and could reasonably conclude that no evidentiary hearing was
necessary. The court could further conclude that Jensen failed to prove that the district
attorney’s office was responsible for the grand jury transcript leak, which was the essence
of Jensen’s assertion that the district attorney’s office had a conflict under section 1424.
We find no abuse of discretion on this record. (See Gonzales v. Nork (1978)
20 Cal.3d 500, 507.)
Jensen argues “[o]nly someone in the District Attorney’s Office with a direct
relationship to the case could have been responsible for the leak,” and claims the district
3
Jensen states that his counsel “requested that the grand jury transcripts remain
under seal due to the intense public scrutiny over the case” at a hearing on August 31, but
cites no evidence in the record to support that assertion.
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attorney’s office had a motive to “prejudice the public and potential jury pool against the
defendants.” (Boldface omitted.) But the district attorney’s office is not the only entity
with access to the grand jury transcripts, and Jensen does not explain why the district
attorney’s office would risk jeopardizing the entire prosecution by leaking information.
At the very least, the transcripts were also accessible to the stenographer who prepared
them, court staff, and attorneys for the charged defendants. And information about a
grand jury witness’s demeanor that would not appear in the transcripts (i.e., Sheriff Smith
appearing overcome with emotion) could also have come from anyone present during the
grand jury proceedings, if indeed it was even accurate. Presented with various plausible
scenarios, the trial court could reasonably conclude Jensen did not demonstrate that the
district attorney’s office was the source of the leak.
Jensen contends the court should have at least held an evidentiary hearing to allow
defense counsel to examine the four attorneys about their declarations. He likens his case
to Rosato v. Superior Court (1975) 51 Cal.App.3d 190, where a trial court conducted a
hearing and held news reporters in contempt for refusing to disclose who provided them
with a grand jury transcript that remained sealed. (Id. at pp. 200–204.) But the purpose
of a hearing in Rosato was to investigate who leaked transcripts to the press in violation
of the court’s order keeping them under seal. Even setting aside that distinction, the facts
before the trial court here were simply inadequate to compel an evidentiary hearing.
(Dean v. Dean (1963) 59 Cal.2d 655, 657 [“[A]n appellate court will not interfere with
the trial court’s action unless, as a matter of law, an abuse of discretion is shown.”].)
Though a different trial court could have reasonably concluded that an evidentiary
hearing was appropriate, “we are not authorized to substitute our judgment for that of the
trial judge; the trial court’s exercise of discretion will not be disturbed in the absence of a
clear showing of abuse.” (Gilbert v. National Corp. for Housing Partnerships (1999)
71 Cal.App.4th 1240, 1250.)
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Jensen’s other arguments are unpersuasive because they all presuppose the district
attorney’s office leaked the grand jury transcripts, such as that the leak is evidence that
the district attorney’s office is treating him unfairly and that the leak is “inextricably
linked to the conflict of interest identified by Schumb.” These arguments fail because we
find no abuse of discretion in the trial court’s conclusion that those theories are too
speculative to support a finding that the district attorney’s office was responsible for the
leak. We also do not reach his arguments related to the likelihood of receiving a fair trial
because that question becomes relevant only after a defendant has shown a conflict under
section 1424, which Jensen has failed to do here.
2. Schumb’s Relationships with Rosen and Boyarsky
Jensen argues that codefendant Schumb’s friendships with Rosen and Boyarsky
disqualify the entire district attorney’s office from prosecuting any of the defendants in
this case. Jensen acknowledges that he himself “does not have a personal relationship
with Rosen or Boyarsky.”
In our separate opinion filed today resolving Schumb’s petition for writ of
mandate (case No. H048532), we conclude that the entire Santa Clara County District
Attorney’s Office must be disqualified from prosecuting Schumb because Schumb’s
friendships with Rosen and Boyarsky create a conflict and make it unlikely Schumb will
receive a fair trial if prosecuted by that office. But relationship-based conflicts of interest
relate to the individuals involved, meaning Schumb’s conflict is personal to Schumb. As
Jensen concedes, he has no personal relationship with Rosen or Boyarsky. Unlike
Schumb, he will not be calling them as trial witnesses, and he has no history of
fundraising for them. There is no conflict between Jensen and the district attorney’s
office that would support disqualification. Severing Schumb’s prosecution from that of
Jensen and the other codefendants will resolve any issues related to Schumb’s conflict
with Rosen and Boyarsky and will remove any incentive for the prosecution to try the
case more vigorously than the evidence merits.
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Jensen argues that as a matter of his “rights to due process and a fair trial, not to
mention basic principles of judicial economy, it would make no sense” to disqualify the
district attorney’s office from prosecuting Schumb without also disqualifying it from
prosecuting Jensen. But a defendant must satisfy specific requirements under
section 1424, and we have found the trial court did not abuse its discretion in concluding
Jensen has not done so.
3. Jail Phone Call Recordings
Jensen argues that a dispute between the district attorney and Sheriff Smith over
access to recordings of jail inmate phone calls places him “in the middle of this tangled
web of political and personal connections” and the district attorney’s office must
therefore be disqualified. Jensen has arguably forfeited this issue by not raising it in the
trial court, other than by implication in joining Schumb’s motion. Assuming it was
preserved, Jensen provided no evidence that he had any personal involvement in the
apparent dispute between District Attorney Rosen and Sheriff Smith. On this record, the
trial court could reasonably conclude that Jensen did not meet his burden to show a
conflict of interest—much less one requiring disqualification—based on the mere
existence of a dispute between the district attorney and the elected official with
supervisory power over Jensen. We find no abuse of discretion as to this issue.
Jensen also argues that the trial court should have held an evidentiary hearing
about the jail calls dispute because “it is vital that Captain Jensen be afforded the
opportunity to explore the nature of the relationships between his co-defendant, the
Sheriff, and the District Attorney.” Jensen forfeited that argument because he did not
request an evidentiary hearing about the issue in the trial court; his request for an
evidentiary hearing was limited to the leak of the grand jury transcripts. (In re Marriage
of Even-King & King (2000) 80 Cal.App.4th 92, 117 [“A party who fails to raise an issue
in the trial court has therefore waived the right to do so on appeal.”].) A trial court does
not abuse its discretion by not granting relief that was not requested.
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III. DISPOSITION
Jensen’s petition for writ of mandate or prohibition is denied. Upon finality of this
opinion, the temporary stay order is vacated.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Elia, Acting P. J.
____________________________
Wiseman, J.
H048548 - Jensen v. Superior Court

Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Trial Court Santa Clara County Superior Court
Case No.: C2010724
Trial Judge Hon. Eric S. Geffon
Attorneys for Petitioner Harry S. Stern
James Jensen Rains Lucia Stern St. Phalle & Silver, PC
Attorneys for Respondent Xavier Becerra
The Superior Court of Santa Clara Attorney General of California
County Lance E. Winters
Chief Assistant Attorney General
Attorneys for Real Party in Interest Jeffrey M. Laurence
The People Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney General
Bridget Billeter
Deputy Attorney General