Packer v. Super. Ct. ( 2013 )

Filed 8/29/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JOSHUA GRAHAM PACKER, 2d Civil No. B245923
(Super. Ct. No. 201013013)
Petitioner, (Ventura County)
v. OPINION AND ORDER DENYING
PETITION FOR WRIT OF MANDATE
THE SUPERIOR COURT OF VENTURA
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
A criminal defendant seeking to disqualify a prosecutor is not
entitled to an evidentiary hearing unless, at a minimum, he makes a prima facie
showing that recusal is warranted, and does so using only signed affidavits
containing competent evidence. (Pen. Code, § 1424, subd. (a)(1)); Spaccia v.
Super. Ct. (2012) 209 Cal.App.4th 93, 111 (Spaccia).) 1 Defendant Joshua
Graham Packer (Packer) argues that this procedure violates his constitutional
right to compulsory process by denying him an evidentiary hearing at which he
can subpoena those persons who will not sign affidavits or who cannot be
located. He further contends that the trial court erred in finding that he did not
1
Unless otherwise indicated, all statutory references are to the Penal
Code.
make a prima facie showing. We reject both contentions, and accordingly deny
Packer's petition for writ of mandate seeking to overturn the trial court's denial
of an evidentiary hearing and denial of his motion to recuse the prosecutor in
his case.
FACTS AND PROCEDURAL HISTORY
I. Pending Charges
Packer is charged with three counts of first-degree murder (§§
187, 189) in the May 2009 deaths of Davina Husted, her husband Brock and
their unborn child. The information also charges several enhancements. The
People are seeking the death penalty. The Ventura County District Attorney's
office is prosecuting the case, and Deputy Chief Michael Frawley
("prosecutor") is the lead prosecutor.
II. Motion to Recuse the Prosecutor
A. The Motion
Packer moved to recuse the prosecutor under section 1424, and
objected on compulsory process grounds to the statute's requirement that he use
"affidavits of witnesses who are competent to testify to the facts set forth in the
affidavit" to make his prima facie showing. The motion and objection were
filed after the prosecutor disclosed that his two adult children, Kyle and
Elizabeth, had participated in the same youth group as Packer. Packer sought
recusal on three grounds: (1) Packer would be calling Kyle and Elizabeth as
witnesses for the defense during any penalty phase of the trial; (2) Elizabeth
once dated Thomas Cathcart (Cathcart), who would be a witness for the
prosecution and defense; and (3) the prosecutor "appears to have known"
Davina Husted through his former wife, Lisa West (West).
B. The Evidence Presented
In support of his recusal motion, Packer submitted 54 pages of
affidavits from 7 people, along with 350 pages of attachments. In opposing
Packer's motion and compulsory process objection, the Ventura County district
2
attorney's office and the Attorney General's office submitted 12 pages of
affidavits from two people, along with 68 pages of attachments.2
1. The prosecutor's relationship to Packer through his adult
children
The prosecutor's adult children did not attend the same high
school as Packer, but participated with Packer and more than 50 others in a
youth group called "Young Life." The prosecutor's current wife was a co-chair
of the local chapter of Young Life between 2001 and 2003. Between 2001 and
2008, while Kyle or Elizabeth participated, Young Life events were sometimes
held at the prosecutor's home, and Packer attended some of those gatherings.
The prosecutor was present for some of these events, but he stayed "in the
background" and never interacted with Packer.
Kyle participated in Young Life from 2001 through 2006. Kyle
took a snowboarding trip to Utah with this group in 2003 or 2004, and also
attended a summer camp in Northern California in 2005. On each trip, Kyle
was housed in the same cabin as Packer and between eight and twenty-five
other boys. At the summer camp, Packer told Kyle and others he had a
religious breakthrough. Kyle, Packer and others appeared in group photos
taken at these events. Kyle did not have any one-on-one conversations with
Packer. After Packer was charged in this case, Kyle signed up for a "Prayers
for Josh" webpage because Kyle's friend asked him to do so, because Kyle
wondered if the charges were true, and because Kyle prayed for Packer's soul.
Elizabeth participated in Young Life while she was in high
school, from 2004 through 2008. She attended the same summer camp in 2005
that Kyle and Packer attended, and also appeared in group photos from that
2
The parties also moved to strike portions of one another's affidavits and
attachments. The trial court partially granted the motions to strike. The trial
court nevertheless considered all of the proffered evidence in making its
rulings. We will do the same.
3
camp. In 2005 or 2006, Elizabeth and two other girls hosted a MySpace
webpage that contained a photograph of all three girls and Packer in a silly
pose.
Although more than 50 children participated in Young Life with
Packer, he named Kyle and Elizabeth as witnesses to present mitigation
evidence in the penalty phase of his trial. He did this because, in his view, "a
jury would likely be more favorably impressed with the testimony of a child of
a prosecutor."
2. The prosecutor's relationship to Packer through Cathcart
Cathcart participated in Young Life. In 2005 or 2006, he dated
Elizabeth for "a couple of months." He had been to the prosecutor's home at
least 10 times during this period.
3. The prosecutor's relationship to Davina Husted
The prosecutor and West divorced in 1997. Ten years later, West
served on the Junior League's board of directors while Davina Husted, one of
the murder victims, was president. West was also listed on the Husted's
Christmas card distribution list for 2008. A January 2008 spreadsheet
recovered from Davina Husted's computer listed the prosecutor and his current
wife as Junior League supporters.
C. The Trial Court's Rulings
The trial court held two days of hearings on Packer's motions.
The court overruled Packer's constitutional challenge to section 1424. On the
merits of the recusal motion, the People conceded that Packer had demonstrated
an "apparent conflict" of interest. The trial court accepted this concession,
noting that the prosecutor's children and Packer had had "some degree of
relationship" for a "very brief period of time" "prior to the [charged] crime[s]."
However, the court found that Packer had not established "the link between the
apparent conflict . . . and unfairness on behalf of the prosecution." Any link
was, in the court's view, based on "speculation and innuendo."
4
The court concluded that the evidence Packer presented did not
warrant an evidentiary hearing because his affidavits and supporting
documentation did "not support a finding of a prima facie showing of a
disabling conflict of interest." The trial court denied the recusal motion.
D. Appellate Review
Packer petitioned this court for a writ of mandate. We summarily
denied the petition, and Packer petitioned the Supreme Court for review. The
Supreme Court granted review and transferred the matter to us with directions
to vacate our order denying mandate and to issue an alternative writ. We gave
the trial court an opportunity to reconsider its ruling and grant Packer's request
for an evidentiary hearing. When the trial court declined to do so, we issued an
order to show cause and set the matter for oral argument.
DISCUSSION
I. Section 1424's Procedures Do Not Violate a
Defendant's Right to Compulsory Process
Section 1424, subdivision (a)(1), empowers a criminal defendant
to move "to disqualify a district attorney." It prescribes a two-stage process
courts must use when evaluating such motions. The first stage relies on written
submissions: "The [defendant's] notice of motion shall contain a statement of
the facts setting forth the grounds for the claimed disqualification and the legal
authorities relied upon by the moving party and shall be supported by affidavits
of witnesses who are competent to testify to the facts set forth in the affidavit.
The district attorney or the Attorney General, or both, may file affidavits in
opposition to the motion and may appear at the hearing on the motion and may
file with the court hearing the motion a written opinion on the disqualification
issue." (Ibid., italics added.) The second stage is an evidentiary hearing. The
statute provides that "[t]he judge shall review the affidavits and determine
whether or not an evidentiary hearing is necessary." (Ibid.) No evidentiary
hearing is necessary unless, at a minimum, the defendant makes a prima facie
5
showing of his entitlement to recusal during the first stage. (Spaccia, supra,
209 Cal.App.4th at p. 111.)
Packer argues that this procedure violates his right to compulsory
process. Specifically, he contends that conditioning the right to an evidentiary
hearing on a showing made solely through affidavits containing competent
evidence "interferes with the exercise of his right [under compulsory process] to
present witnesses on his own behalf. [Citations & fn. omitted.]" (People v.
Martin (1987) 44 Cal.3d 1, 30 (Martin).) He recognizes that the trial court
considered the hearsay statements of Kyle, Cathcart and others, but asserts that
he is constitutionally entitled to an evidentiary hearing in order to subpoena
witnesses and develop additional evidence to help him prove that the prosecutor
labors under a disabling conflict of interest. We review the constitutionality of
section 1424 de novo. (People v. Super. Ct. (Mudge) (1997) 54 Cal.App.4th
407, 411.) We reject Packer's challenge to section 1424 for two reasons.
A. Compulsory Process Has Not Been Extended
To Pretrial Proceedings
The United States and California Constitutions grant a criminal
defendant the right "to have compulsory process for obtaining witnesses in his
favor . . . ." (U.S. Const., amend VI; Cal. Const., art. I, § 15 ["The defendant in
a criminal cause has the right . . . to compel attendance of witnesses in the
defendant's behalf"].) At its core, compulsory process secures "the right to the
government's assistance in compelling the attendance of favorable witnesses at
trial . . . ." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 56 (Ritchie), italics
added.) Compulsory process complements the right to confrontation
(Washington v. Texas (1967) 388 U.S. 14, 19 (Washington)), which is also "a
trial right" (Ritchie, supra, at p. 52 (plurality opinion); see also People v.
Gonzales (2012) 54 Cal.4th 1224, 1267 ["[T]he right to confrontation is a trial
right that does not apply with full force at a preliminary hearing"]; cf. People v.
Cain (2000) 82 Cal.App.4th 81, 86 [no confrontation right at sentencing]).
6
In arguing that he has a right to an evidentiary hearing in support
of his recusal motion at which he can subpoena and question any witnesses who
will not sign affidavits or whom he cannot locate, Packer is necessarily asking
us to recognize a pretrial right to compulsory process. The United States
Supreme Court has rejected arguments to recognize a pretrial right to
compulsory process that would serve as a means of gaining access to witnesses
or written discovery. (Ritchie, supra, 480 U.S. at p. 56.) So has our Supreme
Court, which has repeatedly voiced reluctance to take "a long step in a direction
the United States Supreme Court has not gone." (People v. Hammon (1997) 15
Cal.4th 1117, 1127 (Hammon); People v. Clark (2011) 52 Cal.4th 856, 983.)
We are doubly reluctant to take an even longer stride into territory untouched
by either the United States or California Supreme Courts—especially when, as
we discuss next, "persuasive reason[s] exist[] not to do so" (Hammon, supra, at
p. 1127).
B. Section 1424's Procedures Proportionately
Serve Legitimate Interests
The constitutional right to compulsory process is not "an
unfettered right to offer testimony" that "automatically and invariably
outweigh[s] countervailing public interests." (Taylor v. Illinois (1988) 484 U.S.
400, 410, 414 (Taylor).) To the contrary, when a defendant contends that a
statute or rule categorically deprives him of his constitutional right to
compulsory process, as Packer does here, he must prove both that he was
deprived of the opportunity to present material evidence in his favor and "that
the deprivation was arbitrary or disproportionate to any legitimate evidentiary
or procedural purpose." (Government of Virgin Islands v. Mills (3d Cir. 1992)
7
956 F.2d 443, 446, quoting Rock v. Arkansas (1987) 483 U.S. 44, 56 (Rock);
Holmes v. South Carolina (2006) 547 U.S. 319, 324-325 (Holmes).)3
Put differently, a statute or rule that excludes defense
evidence does not transgress a defendant's right to compulsory process if it
proportionately furthers a legitimate interest. It depends on the nature of
the evidence excluded. (See United States v. Scheffer (1998) 523 U.S. 303,
309-315 (Scheffer) [ban on polygraph evidence serves three "legitimate
interests" is constitutional]; Taylor, supra, 484 U.S. at pp. 410-413 [exclusion
of defense witness as a discovery sanction furthers legitimate "interest in the
orderly conduct of a criminal trial" is constitutional]; cf. Holmes, supra, 547
U.S. at pp. 325, 331 [rule excluding defense evidence that a third party
committed the charged crime when prosecution's evidence is strong is
"arbitrary" and unconstitutional]; Washington, supra, 388 U.S. at pp. 22-23
[rule barring testimony from an accomplice is "absurd[]" and unconstitutional];
Chambers v. Mississippi (1973) 410 U.S. 284, 297-302 (Chambers) [rule
precluding a defendant from confronting witnesses called by the defense with
their prior inconsistent statements lacks any "underlying rationale" and is
unconstitutional]; Rock, supra, 483 U.S. at p. 52 [rule barring a defendant from
testifying based on any hypnotically refreshed testimony has "no justification"
and is unconstitutional].)
Section 1424's procedures proportionately further three legitimate
interests. Its two-stage procedure performs a screening function that furthers
two state interests: (1) avoiding unnecessary harassment of prosecutors and
3
Along the same lines, a defendant attacking the prosecutor's
interference with the right to present material and favorable evidence in her
particular case must establish that the interference was "'entirely unnecessary to
the proper performance of the prosecutor's duties.'" (In re Williams (1994) 7
Cal.4th 572, 603, quoting People v. Mincey (1992) 2 Cal.4th 408, 460 and
Martin, supra, 44 Cal.3d at p. 31; People v. Jacinto (2010) 49 Cal.4th 263, 269-
270.)
8
trial witnesses; and (2) reducing the attendant disruption to the administration
of justice flowing from unwarranted evidentiary hearings. These interests are
legitimate. (Holmes, supra, 547 U.S. at pp. 326-327 [rules excluding evidence
"'pos[ing] an undue risk of harassment'" are legitimate]; People v. Dykes (2009)
46 Cal.4th 731, 809, fn. 23 (Dykes) [same]; Taylor, supra, 484 U.S. at p. 415
[noting legitimate "interest in the fair and efficient administration of justice"];
see Garcia v. Super. Ct. (1984) 156 Cal.App.3d 670, 681-682 (Garcia) [two-
stage process for evaluating judicial bias furthers "strong policy considerations"
against harassment of judges, which "jeopardize[s] the integrity of the judicial
process"].) Section 1424's further requirement that the prima facie showing be
made on the basis of "affidavits of witnesses who are competent to testify"
furthers a third "unquestionably" "legitimate interest"—namely, "ensuring that
reliable evidence is presented to the trier of fact . . . ." (Scheffer, supra, 523
U.S. at p. 309.)
The interpretation of the compulsory process right Packer urges
would affirmatively disserve two of these legitimate interests and, in the
process, significantly alter California criminal procedure. Packer faults section
1424 for precluding defendants from presenting the statements of potential
witnesses who refuse to sign affidavits or who cannot be located, and asserts
that the remedy is to convene an evidentiary hearing at which those unwilling
or unreachable affiants can be subpoenaed to testify. Although Packer contends
that evidentiary hearings would be required only when affiants are "missing,"
the more likely effect is that evidentiary hearings would be requested (and
hence required) with every recusal motion because it will almost always be
possible to identify an uncooperative or absent witness. (Accord, United States
v. Valenzuela-Bernal (1982) 458 U.S. 858, 866 [looking to practical impact of a
ruling].) Packer's proposed solution would put the proverbial cart before the
horse by mandating evidentiary hearings in order to help a defendant make a
prima facie showing (instead of the other way around). It would also subject
9
prosecutors and trial witness to evidentiary hearings whenever a recusal motion
is filed, which yields precisely the sort of harassment and concomitant
disruption to the administration of justice that section 1424's procedures were
specifically adopted to avoid. (See Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 154 (1999-2000 Reg. Sess.)
as amended Aug. 17, 1999, p. 3.) [justifying adoption of two-stage procedure
as needed to reduce the number of evidentiary hearings functioning as "lengthy
fishing expeditions at the expense of the crime victims and the prosecutors who
are often forced to testify under oath for several hours"].)
Furthermore, these adverse consequences would not be limited to
motions under section 1424 because similar two-stage screening mechanisms
are also used to evaluate allegations of bias and misconduct leveled against the
other key participants in a criminal prosecution—namely, judges, jurors and
defense counsel. (See Garcia, supra, 156 Cal.App.3d at pp. 680-682 [due
process-based claims of judicial bias]; Code Civ. Proc. § 170.3, subd. (c)(1),
(3) & (6) [statutory claims of judicial bias]; People v. Hedgecock (1990) 51
Cal.3d 395, 419 [claims of juror misconduct raised in motion for new trial];
People v. Carrasco (2008) 163 Cal.App.4th 978, 989-990 [requests for jurors'
identifying information under Code Civ. Proc., § 237, subd. (b)]; People v.
Sharp (1994) 29 Cal.App.4th 1772, 1787 (Sharp) [claims of defense counsel
conflicts of interest raised prior to or during trial under People v. Marsden
(1970) 2 Cal.3d 118], overruled on other grounds by People v. Martinez (1995)
11 Cal.4th 434, 452; People v. McCarthy (1986) 176 Cal.App.3d 593, 597
[claims of defense counsel conflicts raised in habeas], overruled on other
grounds by People v. Goodson (1990) 226 Cal.App.3d 277, 280.) If, as Packer
contends, section 1424's procedures for evaluating prosecutorial bias are
constitutionally infirm, the same is likely true for the procedures in these
10
analogous contexts.4 Packer's reading would make evidentiary hearings
mandatory, not discretionary.
Packer offers four reasons in support of his reading of the right to
compulsory process. First, he contends that section 1424's procedures are
arbitrary insofar as their sole goal is to conserve judicial resources and as they
hamstring only a defendant's presentation of evidence. This argument not only
understates the legitimacy of the interest in judicial economy (People v. Tindall
(2000) 24 Cal.4th 767, 774; cf. Superior Court v. Elkins (2007) 41 Cal.4th
1337, 1353), but also overlooks all three legitimate interests, detailed above,
that section 1424's procedures serve. It also ignores the plain language of
section 1424 and the trial court's rulings in this case, which apply section 1424's
competent-evidence requirement to prosecutorial submissions as well (id., subd.
(a)(1)).
Second, Packer asserts that criminal defendants are elsewhere
permitted to make a prima facie showing (and hence establish entitlement to
an evidentiary hearing) using otherwise inadmissible hearsay. He points to
motions seeking law enforcement personnel records under Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (City of Santa Cruz v. Muni. Ct. (1989) 49 Cal.3d
74, 87-88 (City of Santa Cruz)), and motions to suppress illegally seized
evidence under section 1538.5 (People v. Johnson (2006) 38 Cal.4th 717, 721,
729; see also Blackman v. MacCoy (1959) 169 Cal.App.2d 879, 879-880
[affidavits in support of a statutory claim of judicial bias may be based upon
information and belief].) This is true, but of no constitutional significance. The
movant's ability to rely on hearsay in these contexts is a function of legislative
4
This would be just the tip of the iceberg. (See, e.g., McCarthy, supra,
176 Cal.App.3d at p. 597 [two-stage screening used for all habeas claims]; Star
Motor Imports, Inc. v. Super. Ct. (1979) 88 Cal.App.3d 201, 204 [same, with
writ petitions]; People v. Super. Ct. (Zamudio) (2000) 23 Cal.4th 183, 201
[same, with petitions to vacate a plea under § 1016.5]; People v. Stanley (1995)
10 Cal.4th 764, 791-792 [same, with venue motions].)
11
grace, not constitutional mandate. (See City of Santa Cruz, supra, at p. 88
["[T]he Legislature may also preclude the use of affidavits on information and
belief"]; see also Star Motor Imports, supra, 88 Cal.App.3d at p. 204 [petitions
for writ of mandate cannot be supported by affidavits containing hearsay];
Dykes, supra, 46 Cal.4th at p. 810 [same, for motions for new trial for juror
misconduct]; Sharp, supra, 29 Cal.App.4th at p. 1787 [same, for habeas
petitions].) Our Legislature is not barred from insisting upon the use of
competent evidence because the right to compulsory process does not
encompass the "right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence." (Taylor, supra, 484
U.S. at p. 410.)
Third, Packer argues that this is a capital case, and hence warrants
a different constitutional standard. It does not. (See Holmes, supra, 547 U.S. at
pp. 324-325 [capital case using standard compulsory process analysis]; see also
Hollywood v. Super. Ct. (2008) 43 Cal.4th 721, 728 [§ 1424's standards same
for all cases, including capital cases].)
Lastly, Packer posits that granting him an evidentiary hearing
ends up conserving judicial resources in the long run because the refusal to
grant him such a hearing now will inevitably necessitate an evidentiary hearing
by a federal court reviewing any resulting conviction on habeas corpus. (See
Hurles v. Ryan (9th Cir. 2013) 706 F.3d 1021, 1038.) We disagree with both
premises of this argument. A federal court will convene an evidentiary hearing
only if the state court did not provide one and provided no "other opportunity
for the [defendant] to present evidence." (Ibid.) Because section 1424 permits
defendants to present competent evidence through affidavits, this may well
constitute a sufficient "opportunity . . . to present evidence." (Hurles, supra, at
p. 1038.) Even if it does not, the potential for federal review of state
convictions on habeas corpus has been around for well over a century (Act of
Feb. 5, 1867, ch. 28, 14 Stat. 385.) [extending federal habeas corpus writ
12
generally to all state prisoners]), and does not provide a basis unto itself for
modifying state procedure, particularly when the modification sought comes
with the deleterious consequences outlined above.
In sum, we hold that section 1424 does not violate a defendant's
right to compulsory process by conditioning eligibility for an evidentiary
hearing on the ability to make a prima facie showing made solely with
affidavits containing competent evidence.5
II. The Trial Court Did Not Abuse Its Discretion In
Declining To Hold An Evidentiary Hearing
Packer also argues that the trial court erred in not granting him an
evidentiary hearing. Section 1424 contemplates an "exercise of discretion on
the part of the trial court in determining whether an evidentiary hearing is
necessary." (Spaccia, supra, 209 Cal.App.4th at p. 109.) But a trial court's
discretion in this regard is not boundless. An evidentiary hearing is necessary if
the defendant's prima facie showing raises factual disputes on which relief turns
(see People v. Romero (1994) 8 Cal.4th 728, 739-740), but is pointless if the
defendant is unable to point to facts in his prima facie case which, if credited,
would entitle him to relief (In re Marriage of Brown & Yana (2006) 37 Cal.4th
974, 962 [noting "an evidentiary hearing [would] serve[] no legitimate purpose
or function" in that situation]). A trial court will accordingly abuse its
discretion in denying an evidentiary hearing in support of a recusal motion
under section 1424 only if the defendant has made a prima facie showing of
entitlement to recusal and that showing includes facts that are disputed and
material to the court's ruling on the merits of recusal.
5
It also does not offend due process, as Packer also argues, because the
statute's two-stage procedure, with the guarantee of post-trial judicial review,
provides an adequate opportunity to be heard. (Accord, Garcia, supra, 156
Cal.App.3d at pp. 680-682 [rejecting due process challenge to two-stage
process for evaluating judicial bias claims].)
13
Because the trial court's denial of an evidentiary hearing in this
case rested solely on its finding that Packer had not made the requisite prima
facie showing, we begin by reviewing this finding. Our review is limited. "The
trial court's findings of fact are reviewed for substantial evidence, . . . and its
application of the law to the facts is reversible only if arbitrary and capricious.
[Fn. omitted.]" (Haraguchi v. Super. Ct. (2008) 43 Cal.4th 706, 711-712
(Haraguchi).)
In making a prima facie showing for recusal under section
1424, it is not enough to show that the prosecutor's involvement "would be
unseemly, would appear improper, or would tend to reduce public confidence
in the impartiality and integrity of the criminal justice system." (People v.
Eubanks (1996) 14 Cal.4th 580, 592 (Eubanks).) Instead, a defendant has the
burden of asserting facts which, if credited, establish: (1) a "conflict of
interest"; (2) "so grave as to make a 'fair treatment' unlikely." (Id. at pp. 593-
594.) A "conflict of interest" involving the prosecutor exists when he or she is
shown to have a personal "axe to grind" (id., at p. 590, quoting Wright v.
United States (2d Cir. 1984) 732 F.2d 1048, 1056 (Wright)) that creates a
"reasonable possibility" that he or she will not exercise prosecutorial discretion
"in an evenhanded manner" (People v. Conner (1983) 34 Cal.3d 141, 148
(Conner)). The prosecutor's personal interest must be more than an advocate's
usual interest in prevailing. (People v. Vasquez (2006) 39 Cal.4th 47, 65
(Vasquez) ["Zealous advocacy in pursuit of convictions forms an essential part
of the prosecutor's proper duties and does not show the prosecutor's
participation was improper"].) Because proof of a conflict does not alone
14
warrant recusal6 (Spaccia, supra, 209 Cal.App.4th at p. 112, fn. 33), the
defendant must also prove that it is more likely than not, that due to the conflict,
he or she will not be treated fairly during the criminal proceedings.
(Haraguchi, supra, 43 Cal.4th at p. 713; Eubanks, supra, at p. 593 ["the need
for prosecutorial impartiality extends to all portions of the proceedings, not only
to the trial"].)
Packer argues that the prosecutor's conflict of interest springs
from a personal interest in this case. Packer specifically alleges three sources of
conflict. We consider each.
A. The Prosecutor's Adult Children
May Be Penalty Phase Witnesses
Packer asserts that his decision to call the prosecutor's two adult
children as witnesses warrants recusal. Packer has listed them solely as penalty
phase witnesses to offer mitigating evidence under section 190.3, subdivision
(k), and argues that this creates a disabling conflict of interest for the prosecutor
in two ways.
1. Prosecutor's "Emotional Embroilment"
Packer asserts that his decision to call Kyle and Elizabeth as
witnesses has angered the prosecutor, and that his "emotional embroilment" has
already manifested itself and will likely result in an unfair trial. For support,
Packer points to: (1) the prosecutor's late discovery disclosures and refusal to
provide discovery not mandated by section 1054.1; (2) the prosecutor's pretrial
6
Prior to the enactment of section 1424, an apparent conflict alone had
been sufficient. (People v. Super. Ct. (Greer) (1977) 19 Cal.3d 255, 269
[authorizing recusal of prosecutor under Code Civ. Proc., § 128, subd. (a)(5),
based on a showing of a conflict of interest that "appear[s] to affect" the
prosecutor's impartiality].) Our Legislature enacted section 1424 to overrule
Greer because, in its view, Greer prompted a "substantial increase in the
number of unnecessary prosecutorial recusals under [its] 'appearance of conflict'
standard . . . ." (People v. Petrisca (2006) 138 Cal.App.4th 189, 194, quoting
People v. Merritt (1993) 14 Cal.App.4th 1573, 1578.)
15
litigation tactics; (3) the prosecutor's expressions of annoyance with defense
counsel's litigation strategy, including the statement that calling his children as
witnesses constitutes "the lowest sort of trial tactics"; (4) the prosecutor's
minimal cooperation with defense investigators insofar as he would only give
Elizabeth their contact information but would not provide her address, coupled
with Elizabeth's "tweet" that she was "really over not being able to tweet [her]
whereabouts. This better pay off. #attorneyfatherprobs"; (5) Kyle's conduct in
skipping his first interview with defense investigators and making two edits to
the investigator's summary of that interview, even though prosecutor told him it
was okay to be interviewed and to tell the truth; and (6) the prosecution
investigator's instruction to Cathcart not to mention Elizabeth during an
interview with the prosecutor, and Cathcart's unwillingness to be re-interviewed
by the parties.
Packer presented no direct evidence that the prosecutor had any
role in Elizabeth's, Kyle's, Cathcart's or the prosecution investigator's conduct,
or that any of the prosecutor's own conduct was motivated by a personal
grievance against Packer. To be sure, the trial court could have reasonably
inferred that the prosecutor was upset with Packer and was grinding that
personal axe by tampering with witnesses and taking positions in pretrial
litigation unhelpful to the defense. (See People v. Super. Ct. (Humberto S.)
(2008) 43 Cal.4th 737, 747 ["the persistent, bad faith use of [lawful] litigation
tactics" can constitute circumstantial evidence of "an underlying conflict"].)
But the trial court could also reasonably infer that the prosecutor's litigation
positions were zealous but evenhanded discretionary calls, that the prosecutor
had nothing to do with the witnesses' reluctance to fully cooperate with either
party, and that the prosecutor's statements constituted public posturing in a
high-profile case rather than an admission of a personal vendetta. (See People
v. Zapien (1993) 4 Cal.4th 929, 970-971 [impermissible conflict not proven by
showing different prosecutor might have made different discretionary litigation
16
decisions].) We may not gainsay the trial court's decision to draw one
reasonable inference over another (Lake v. Reed (1997) 16 Cal.4th 448, 457
["'Where the evidence supports more than one inference, we may not substitute
our deductions for the trial court's'"]), especially when the trial court is in a
"better position" than we are to "evaluate the consequences of a potential
conflict in light of the entirety of a case." (Haraguchi, supra, 43 Cal.4th at p.
713; Conner, supra, 34 Cal.3d at p. 149.) The trial court accordingly did not
abuse its discretion in finding that Packer had not sufficiently proved the "link
between the apparent conflict . . . and unfairness on behalf of the prosecution."
(Accord, Vasquez, supra, 39 Cal.4th at pp. 62, 63 ["a personal interest that
might add to [a prosecutor's] zeal" is "not always regarded as creating so
substantial a conflict as to deprive the defendant of fundamental fairness"].)
2. Automatic Recusal Rule
Packer alternatively argues that his decision to call the
prosecutor's children itself created a disabling conflict because the jury will be
more inclined to discredit his children's testimony if he, as their father, argues
that it is not credible. We disagree.
We are not convinced that Packer's proffered rule of automatic
recusal is implicated in this case. At this point, we do not know if the trial court
will find Kyle and Elizabeth's testimony to be cumulative under Evidence Code
section 352 or whether that court will admit evidence of their familial link to
the prosecutor.7 Moreover, because Kyle's and Elizabeth's likely testimony
would address Packer's behavior many years ago that is unrelated to the charged
crimes, the prosecutor in this case would likely be arguing the significance of
his children's testimony on the question of whether death is an appropriate
penalty rather than contesting their credibility.
7
We express no opinion on these evidentiary questions.
17
Packer's proffered rule is flawed in any event. It is categorical,
because it would automatically and without exception mandate recusal of a
prosecutor whenever a defendant can find and name as a witness anyone with a
connection to the prosecutor. Our Supreme Court generally eschews
categorical disqualification rules. (E.g., Eubanks, supra, 14 Cal.4th at p. 599
[rejecting notion that all cases in which a victim provides financial assistance to
the prosecutor's office "necessarily subjects the defendant to unfair . . .
treatment"]; Vasquez, supra, 39 Cal.4th at p. 65 [rejecting notion that kinship
between defendant and employees of the prosecutor's office necessarily
mandates recusal].) It can be manipulated, because it would empower
defendants to create disabling conflicts of interest whenever they can find
anyone with a connection to their case and the prosecutor. (Millsap v. Super.
Ct. (1999) 70 Cal.App.4th 196, 203.) And it is not justified, because courts
have not treated the existence of a prior connection between a member of the
prosecutor's family, or the prospect that a prosecutor may argue a particular
witness's credibility, as a per se ground for disqualification. (See Wright,
supra, 732 F.2d at pp. 1051, 1058 [prosecutor not disqualified, under due
process principles, when his wife previously reported defendant's other
misdeeds to the authorities]; see also People v. Cannedy (2009) 176
Cal.App.4th 1474, 1480-1489 [trial court did not abuse its discretion in not
recusing prosecutor who will argue credibility of a colleague]; People ex rel.
Younger v. Super. Ct. (1978) 86 Cal.App.3d 180, 206-210, superseded on other
grounds by § 1424, subd. (a)(1) [same]; cf. People v. Jenan (2006) 140
Cal.App.4th 782, 791-793 [trial court did not abuse its discretion in recusing
prosecutor who will argue credibility of colleague from a small office, when
that colleague witnessed the defendant's crime].)
18
B. The Prosecutor's Daughter's
Ex-Boyfriend May Be a Witness
Packer argues that Cathcart's status as a guilt and penalty phase
witness also constitutes a conflict of interest. Packer does not explain why
Cathcart's brief relationship with the prosecutor's daughter seven or eight years
ago would create a personal reason for the prosecutor to treat Packer unfairly,
and the trial court did not abuse its discretion in perceiving none.
C. The Prosecutor Had Some Relationship
With One of the Alleged Murder Victims
Packer articulates two connections between the prosecutor and
Davina Husted. Packer notes that the prosecutor's former wife was actively
involved in the Junior League with Husted. Because this involvement occurred
more than a decade after the prosecutor and his former wife divorced, the trial
court did not abuse its discretion in rejecting this as a basis for recusal.
Packer alternatively asserts that the prosecutor and his current
wife appear in a January 2008 spreadsheet listing Junior League supporters that
was found on Davina Husted's computer. This demonstrates that Husted
possessed the prosecutor's current address. But Husted was president of the
Junior League, so her possession of a list of supporters does not show that she
knew the prosecutor or had any relationship with him.
In sum, the trial court did not abuse its discretion in concluding
that Packer had not made a prima facie showing that the prosecutor's apparent
conflict of interest was so grave as to result in an "actual likelihood of unfair
treatment." (Haraguchi, supra, 43 Cal.4th at p. 719.) The court consequently
did not abuse its discretion in denying an evidentiary hearing or in denying his
recusal motion.
19
DISPOSITION
The petition for a writ of mandate is denied. The Order to Show
Cause, having served its purpose, is discharged.
CERTIFIED FOR PUBLICATION.
HOFFSTADT, J.*
We concur:
GILBERT, P. J.
PERREN, J.
*(Judge of the Superior Court of Los Angeles County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.).
20
Patricia M. Murphy, Judge
Superior Court County of Ventura
______________________________
Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief
Deputy for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez,
Deputy Attorney General, for Real Party in Interest.