People v. Lastra

Filed 8/31/22 Certified for Publication 9/28/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309895
(Cons. w/ B311783)
Plaintiff and Appellant, (Super. Ct. Nos. 20F-06361 A-C,
20M-05512 A-D)
v. (San Luis Obispo County)
ROBERT ANTHONY
LASTRA, JR., et al.,
Defendants and Respondents.
THE COURT:
Respondents are college students who face criminal charges
for marching through the City of San Luis Obispo following the
murder of George Floyd, Jr. in 2020. The trial court granted
their motion to recuse District Attorney Dan Dow’s office from
the case because of Dow’s well-publicized association with critics
of the Black Lives Matter movement. (Penal Code, § 1424.)1 The
District Attorney and Attorney General appeal.
As the trial court stated: “[N]o defendant is entitled to a
prosecutor to which they are politically or socially or ideologically
aligned.” “The men and woman charged here,” however, “are
entitled to a prosecution not clouded by political or personal
advantage to the prosecutor.” Substantial evidence supported
the trial court’s determination that Dow and his office were not
likely to treat respondents fairly. We affirm the order granting
respondents’ motion to recuse.
FACTUAL AND PROCEDURAL BACKGROUND
Respondents are defendants in two pending criminal cases
arising from a protest march that wound through the surface
streets of the City of San Luis Obispo and onto Highway 101 on
July 21, 2020. The protest was one of several such events
organized by local college students in the wake of George Floyd,
Jr.’s death at the hands of Minneapolis police officers earlier that
year. The 300-strong group provoked a range of reactions from
those they encountered. Some cheered the marchers and their
cause while others antagonized and vilified them; some
complained about the blocked traffic. Images of marchers
surrounding cars on Highway 101 appeared in national media
outlets. Serious injury was narrowly avoided on at least two
occasions when motorists attempted to drive around them.
Prosecutors describe Tianna Arata Wentworth (Arata) as
the marchers’ de facto leader. She faced 13 misdemeanor counts
of false imprisonment, obstruction of a thoroughfare, unlawful
1All statutory references are to the Penal Code, unless
otherwise noted.
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assembly, and disturbing the peace.2 Arata was the only person
charged until the District Attorney filed an amended complaint
charging respondents Marcus Montgomery and Joshua Powell
with obstructing police officers and respondent Amman Asfaw
with false imprisonment.3 A separate complaint charged
respondent Jerad Hill with misdemeanor vandalism, respondent
Samuel Grocott with misdemeanor false imprisonment, and
respondent Robert Lastra, Jr. with felony vandalism for breaking
a car window as it drove through the crowd of protestors on
Highway 101.4
Arata moved to disqualify the entire District Attorney’s
Office from prosecuting her case. (§ 1424.) All respondents
joined the motion, which described District Attorney Dow as
“aligned with right-wing conservative political organizations and
fundamentalist religious groups that seek to vilify the Black
Lives Matter [BLM] movement.” They argued Dow’s antipathy
toward BLM-inspired protests slanted his office’s investigation
and motivated him to file charges against Arata and her co-
defendants. The trial court granted the motion and directed the
2People v. Arata (Super. Ct. San Luis Obispo County, 2020,
No. 20M-05512).
3 People v. Arata (Super. Ct. San Luis Obispo County, 2020,
No. 20M-05512-A), People v. Montgomery (Super. Ct. San Luis
Obispo County, 2020, No. 20M-05512-B), People v. Asfaw (Super.
Ct. San Luis Obispo County, 2020 ,No. 20M-05512-C), and People
v. Powell (Super. Ct. San Luis Obispo County, 2020, No. 20M-
05512-D).
4People v. Lastra, et al. (Super. Ct. San Luis Obispo
County, 2020, No. 20F-06361).
3
Attorney General to represent the People going forward.5 The
District Attorney and Attorney General appeal. We consolidated
respondents’ appeals for all purposes.6
DISCUSSION
Section 1424 “sets forth the procedure for a defendant to
seek an order . . . recusing a member of the district attorney’s
office, or the office as a whole, for a conflict of interest.” (People v.
Griffin (2004) 33 Cal.4th 536, 569.) The procedure “constitutes a
statutorily authorized judicial interference with the executive
branch’s constitutional role to enforce the law.” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 374.) The trial court
may not grant a motion to recuse “unless the evidence shows that
a conflict of interest exists that would render it unlikely that the
defendant would receive a fair trial.” (Penal Code, § 1424, subd.
(a)(1).) A conflict exists “whenever 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.)
“[S]ection 1424 has been interpreted as providing a two-
part test for disqualification. First, the court must determine
whether there is a conflict of interest. Second, the court must
5The trial court also granted Arata’s motion to compel
discovery from prosecutors relating to alleged discriminatory
enforcement of the law. (See Murgia v. Municipal Court (1975)
15 Cal.3d 286, 300 [“a criminal defendant may object . . . to the
maintenance of the prosecution on the ground of deliberate
invidious discrimination in the enforcement of the law”].)
6The Appellate Division of the San Luis Obispo County
Superior Court certified transfer of the misdemeanor cases to this
court. We granted transfer. (Cal. Rules of Court, rules 8.1002(1),
8.1005, 8.1008(a)(1)(A).)
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determine whether the conflict is so severe as to disqualify the
district attorney from acting.” (Spaccia v. Superior Court (2012)
209 Cal.App.4th 93, 106.) We review the trial court’s findings of
fact for substantial evidence and its conclusions of law de novo.
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712
(Haraguchi).) We reverse its application of law to the facts “only
if arbitrary and capricious.”
The trial court described the following evidence introduced
by Arata as the basis of its ruling on the motion:
• “August 11, 2020 – Mr. Dow appeared on Washington
Watch with Tony Perkins. Mr. Perkins of the Family
Research Council has described the Black Lives
Matter movement as a ‘Marxist’ group who promote
‘cop killings, prostitution, anti-Semitism, anarchy,
and the suppression of speech and religion.’”
• “September 4, 2020 – Mr. Dow explained his charging
decision in the ‘PRotect Paso’ Facebook group.
Documents attached showed animosity to the Black
Lives Matter group – their Constitutional right.
These claim that the BLM movement is ‘domestic
terrorism;’ ‘down right evil, no brains or souls,’ and
posted pictures of a BLM billboard burning in flames.
Members of the group have discussed their skills as
hunters and claim they will use these skills to protect
Dan Dow, and ‘protect our own.’ (Ex K- Defense
Motion).”
• “September 4, 2020 – Mr. and Mrs. Dow sent out a
campaign fundraising request via email on his
birthday. This email sought financial campaign
contributions and stated, ‘Dan needs to know more
than ever that you support him, and he really needs
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your financial support so he can keep leading the
fight in SLO County against the wacky defund the
police movement and anarchist groups that are
trying to undermine the rule of law and public safety
in our community.’ (EX L - Defense Motion.) ‘We had
planned his kickoff re-election campaign fundraiser
to be this month, but due to COVID and all the crazy
protest activity, we were not able to pull it off.’ The
fundraiser continues, ‘You can send Dan a Happy
Birthday message in the comments section when you
make a generous financial contribution TODAY to his
campaign for reelection.’ ‘Your support will help to
ensure that Dan will continue in spite of the ‘defund
police’ and George Soros type of opposition happening
against DA’s all over the state and nation.’ The
exhibit shows that this was ‘Paid for by Dan Dow for
District Attorney 2022 FPPC ID #1361413.’”
• “October 11, 2020 Mr. Dow appears alongside
Candace Owens and spoke at a fundraiser for the
‘New California,’ a secessionist organization. At the
event, Ms. Owens called BLM ‘one of the most racist
movements that ever existed in this country.’ When
questioned, Mr. Dow wrote a letter to the Tribune
advising, ‘Candace Owens is a bright and intelligent,
fearless woman and a role model for young women
everywhere.’ Mr. Dow has been quoted as stating
that ‘She speaks the truth.’”7
7The trial court likewise referred to evidence it did not
consider: “Despite the allegations contained in the motions,
including a letter from one alleged victim’s attorney, the Court is
not considering the allegations against District Attorney
6
Appellants describe this evidence as a “patchwork of
unreliable hearsay” that failed to support Arata’s evidentiary
burden under section 1424.8 They contend the trial court erred
when it relied on newspaper stories, emails, and other out-of-
court statements lacking authentication by affidavit or live
testimony. Even if properly admitted, they argue, the evidence
showed at most the appearance of a conflict. This fell short of
proving respondents were “unlikely” to receive a fair trial. (See
Haraguchi, supra, 43 Cal.4th at p. 719, italics omitted [“Only an
actual likelihood of unfair treatment, not a subjective perception
of impropriety, can warrant a court’s taking the significant step
of recusing an individual prosecutor or prosecutor’s office”].)
The trial court’s comments and citations to the record
readily dispose of these points. It acknowledged prosecutors’
objections to the admissibility and authenticity of the motion and
exhibits. Defense counsel offered to authenticate the exhibits by
way of live testimony from his co-counsel (who prepared the
attorney affidavit required by section 1424), from the reporters
who wrote the news stories, or from the District Attorney himself.
The trial court found this was not necessary because the
statements attributed to Dow and his appearances with anti-
Investigator L’Heureux as no admissible evidence was offered to
the Court for consideration. The Court is also not considering the
‘letter from Heidi Harman’ (EX P) nor the Tribune editorial (EX
A). These are opinion pieces, not from expert witnesses and have
no evidentiary value for the Court.”
8 Section 1424, subdivision (a)(1) states in pertinent part:
“The 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.”
7
BLM commentators were not in dispute. The author of the
fundraising email (Dow’s wife, Wendy) and the email’s contents
were likewise not in dispute. The court observed the email was
sent from a campaign address well known among those in San
Luis Obispo’s small legal community and bore the Dow
campaign’s name and FPPC number. It was not necessary to
formally authenticate the exhibits at an evidentiary hearing
under these circumstances. (See § 1424, subd. (a)(1) [“The judge
shall review the affidavits and determine whether or not an
evidentiary hearing is necessary”]; see also Evid. Code, § 452,
subd. (g) [court may take judicial notice of “[f]acts and
propositions that are of such common knowledge within the
territorial jurisdiction of the court that they cannot reasonably be
the subject of dispute”].)
Appellant’s substantive challenge to the trial court’s
finding that respondents were “unlikely to receive a fair trial” is
equally unavailing. “In each case, the trial court must consider
the entire complex of facts surrounding the conflict to determine
whether the conflict makes fair and impartial treatment of the
defendant unlikely.” (People v. Eubanks (1996) 14 Cal.4th 580,
599.) We are confident it did so here. The trial court was careful
to consider the District Attorney’s statements in context with the
contemporaneous prosecutorial decisions. He filed misdemeanor
charges against respondent Arata on September 4; the same day,
he explained his decision in a lengthy post on a conservative
Facebook page called PRotect Paso. Dow prefaced the post by
recognizing there was “a group of people who were upset” he did
not charge Arata with felonies. This was also the same day
Wendy Dow urged prospective donors to help her husband “keep
leading the fight against the wacky defund the police movement
and anarchist groups that are trying to undermine the rule of law
and public safety.” The court’s finding that a targeted
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fundraising appeal of this nature created a conflict of interest is
neither arbitrary nor capricious, as appellants contend, but a
deliberate and logical application of section 1424 to the facts.
We emphasize the District Attorney did not cede his rights
to freedom of speech and association when he entered public
office. “[T]hat a public prosecutor might feel unusually strongly
about a particular prosecution or, inversely, might hesitate to
commit to a prosecution for personal or political reasons does not
inevitably indicate an actual conflict of interest, much less a
constitutional bar to prosecution.” (People v. Vasquez (2006) 39
Cal.4th 47, 63.) His exercising of these rights, however, cannot
deprive those he prosecutes of their own right to a fundamentally
fair trial. Our trial courts are best positioned to determine when
this is likely to occur. (See Haraguchi, supra, 43 Cal.4th at
p. 713 [“trial courts are in a better position than appellate courts
to assess witness credibility, make findings of fact, and evaluate
the consequences of a potential conflict in light of the entirety of a
case, a case they inevitably will be more familiar with than the
appellate courts that may subsequently encounter the case”].)
This case is no exception. We decline to substitute our judgment
for that of a trial court familiar with the social, legal, and
political dynamics of San Luis Obispo County. (See Millsap v.
Superior Court (1999) 70 Cal.App.4th 196, 203 [“The trial judge
who had presided over the case, and who was familiar with the
parties and their counsel, found no basis for recusal”].)
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DISPOSITION
The order granting Arata’s motion to recuse is affirmed.9
THE COURT:
GILBERT, P.J. YEGAN, J. *PERREN, J.
9We grant appellant Attorney General’s motion to augment the record
filed June 3, 2021 and supplemental motion to augment filed August 12,
2021. We also grant respondents’ motion to augment filed June 11, 2021.
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution
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Matthew G. Guerrero, Judge
Superior Court County of San Luis Obispo
______________________________
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, William N. Frank and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Appellant.
Dan Dow, District Attorney, Eric Dobroth, Assistant
District Attorney, and Delaney Henretty, Deputy District
Attorney, for Plaintiff and Appellant.
Bryan A. Ford, for Respondent Robert A. Lastra, Jr.
Patrick L. Fisher and Curtis L. Briggs, for Respondent
Tianna I. Arata Wentworth.
Earl E. Conaway, III for Respondent Amman F. Asfaw.
Vincent Barrientos for Respondent Samuel J. Grocott.
Tyler R. Smith for Respondent Jerad D. Hill.
Tardiff & Saldo Law Offices, Dustin M. Tardiff, for
Respondent Marcus L. Montgomery.
Steven D. Rice for Respondent Joshua Powell.
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Filed 9/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B309895
(Cons. w/ B311783)
Plaintiff and Appellant, (Super. Ct. Nos. 20F-06361 A-
C, 20M-05512 A-D)
v. (San Luis Obispo County)
ROBERT ANTHONY ORDER MODIFYING
LASTRA, JR., et al., OPINION, DENYING
PETITIONS FOR
Defendants and Respondents. REHEARING, AND
CERTIFYING OPINION FOR
PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion in the above-titled matter filed
on August 31, 2022, be modified as follows:
On page 7, second paragraph, the words “attorney affidavit
required by section 1424” are deleted and the words “motion’s
supporting affidavit” are inserted in their place.
There is no change in the judgment. The petitions for
rehearing filed on September 15, 2022, are denied.
The opinion filed on August 31, 2022, was not certified for
publication in the Official Reports. For good cause it now appears
the opinion should be published in the Official Reports. It is so
ordered.
GILBERT, P.J. YEGAN, J. PERREN, J.*
* Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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