People v. Williams CA5 ( 2021 )

Filed 3/30/21 P. v. Williams CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078192
Plaintiff and Respondent,
(Super. Ct. No. BF170086A)
v.
DENNIS MAURICE WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. David Minier*
and Judith K. Dulcich, Judges.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Catherine Chatman and Tracy Yao, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*Retired Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
INTRODUCTION
The Kern County District Attorney’s Office charged various Penal Code violations
against defendant Dennis Maurice Williams after defendant assaulted his wife on
multiple occasions. (Undesignated statutory references are to the Penal Code.) After the
last assault, defense counsel learned defendant’s wife was friends with a deputy district
attorney in the Kern County office. Defendant moved to disqualify the entire Kern
County District Attorney’s Office based on the alleged conflict of interest. He argued the
deputy district attorney who was friends with his wife was a potential witness who had
not been “walled off” from the case, so the entire office should be disqualified from
prosecution of the case. The court denied defendant’s disqualification motion.
In his sole issue on appeal, defendant argues the trial court erred in failing to
recuse one of the assigned deputy district attorneys and the Kern County District
Attorney’s Office as a whole based on the alleged conflict of interest and the potential for
prejudice. He contends he was treated unfairly as a result of the conflict of interest.
Finding no error, we affirm the judgment.
FACTUAL BACKGROUND
L.W. testified regarding the events giving rise to the charges. She had been
married to defendant for 15 years and lived with him until October 2017. L.W.’s adult
daughter from a prior marriage, S.G., lived with L.W. from September to December
2017. According to L.W., her and defendant’s marriage began to fall apart when she
learned he was using methamphetamine; he was also drinking. Sometime thereafter,
L.W. began having an affair.
Around the end of September or beginning of October 2017, defendant confronted
L.W. about her affair when she returned from a trip. Defendant hit L.W. on her head;
they struggled and ended up in the bedroom where defendant choked L.W., “trying to get
the devil out.” L.W. had light scratch marks and soreness all over after the incident.
2.
Then, in the beginning of October 2017, defendant approached L.W. in the kitchen, hit
her on her head, and threw her up against the sink.
On October 19, 2017, L.W. woke up and went to the kitchen to make coffee.
Defendant followed her, and they were arguing about the affair. During the argument,
L.W. slammed the coffee pot on the counter and it broke, spilling coffee on the floor.
Defendant then pulled off his leather belt and began to beat L.W. with the strap on her
head and shoulders. L.W. was screaming for help and asking him to stop. S.G. came
into the room and wedged herself between defendant and L.W. S.G. told defendant to
stop and leave. L.W. had welts on her head as a result of the incident. L.W. did not call
the police after the first three incidents out of fear and embarrassment and because she
felt like she deserved the abuse.
On October 21, 2017, L.W. and defendant were arguing about her affair again.
Defendant asked L.W. for specifics, and L.W. refused to provide them. Defendant told
L.W. he was depressed and wanted to commit suicide. L.W. saw a shotgun propped
against the wall in the hallway and became terrified. She grabbed it, ran towards the
bedroom, and threw the gun under the bed. Defendant kicked in the bedroom door and
“rushed” L.W., pushing her against the closet. He then reached to get the gun from
underneath the bed and L.W. ran out of the house to her next-door neighbor’s home.
L.W. recalled defendant saying he was going to kill himself. L.W. asked her neighbor to
call 911. The police arrested defendant that night and offered L.W. an emergency
protective order, which she accepted. She reported the other three incidents of abuse to
police at that time.
After that incident, L.W. considered her relationship with defendant over. She
changed all the locks to the house and the gates. Felony charges were filed against
defendant and Deputy District Attorney Christopher Puck was assigned to the case.
In the evening of November 20, 2017, L.W. was sitting on the couch watching
television and talking on the phone. She heard a sound and then saw defendant at the
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sliding glass door that led from the backyard to the house. The lock on that door did not
work properly and the door could be maneuvered to bypass the lock. Defendant opened
the door and charged at L.W. He said, “‘Why are you trying to destroy me, bitch?
You’re going to die tonight.’” L.W. ran towards the front door and defendant caught her
by her foot. As they struggled, defendant bit L.W.’s head and middle finger, resulting in
a scar on her finger. He was on top of L.W. straddling her, holding her with his legs as
he strangled her. L.W. bit defendant but she could not stop him because he overpowered
her. Defendant pushed so hard on L.W.’s neck she could not scream or breathe. L.W.
thought she was dying. Defendant’s demeanor was “eerily calm.” He choked L.W. until
she passed out.
S.G. walked into the house and saw defendant with his hands around L.W.’s neck;
L.W. was not moving. S.G. tried to hit defendant to knock sense into him; she told him
to leave and that she was calling the police. S.G. called the police and defendant ran out.
L.W. recalled regaining consciousness, gasping for breath, and seeing and hearing
her daughter. L.W.’s whole body was hurting; her hands, head, and neck were all
“stinging.” Her neck felt like it was “on fire” due to cuts from defendant’s fingernails;
L.W.’s head was stinging from defendant biting her, and her hand was bleeding from the
other bite. She recalled hearing her daughter calling 911.
L.W. told the police what happened; she had trouble breathing and gasped for air
every time she talked. The police photographed L.W.’s injuries and the prosecutor
introduced those photographs at trial. The sliding door was left ajar. There was a billy
club in the house, which L.W. identified at trial as one defendant kept in his car. The
police recovered from the scene a Bluetooth earpiece and glasses belonging to defendant.
At the request of the assigned deputy district attorney, Christopher Puck, the police
collected DNA swabs from L.W.’s neck for DNA testing. L.W. refused medical
treatment because she did not think she could afford it.
4.
That night, L.W. called some of her family and friends and her sorority sister,
Felicia Nagle, a deputy district attorney. L.W. did not have the number of the assigned
deputy district attorney, Christopher Puck, so she called Nagle to ensure the district
attorney’s office was informed of the situation immediately.1
Nagle recalled receiving a text from L.W. saying, “He tried to kill me.” Nagle
called back to determine who sent the text and L.W. answered sounding upset; Nagle
then went to L.W.’s house. Nagle contacted Puck while at L.W.’s house to let him know
she was there and that something had occurred. Puck asked Nagle to take a video with
audio of the sound of L.W.’s voice. Nagle said she did not want to do it on her phone
because she did not want to be involved in the case. Accordingly, Nagle’s fiancé took a
video of L.W., documenting her voice and the injuries to her neck. A few days later,
L.W. texted Nagle pictures of her injuries, which Nagle forwarded to Puck.
At trial, Nagle denied she ever worked on this case as a prosecutor or that she
weighed in on any of the procedures or how it was being handled. She testified Puck
contacted her once and told her to provide emotional support to L.W. after L.W.’s home
was burglarized and her dog’s leg was broken.
As a result of the incidents, the Kern County District Attorney’s Office charged
defendant with corporal injury to a spouse (§ 273.5, subd. (a)) on or about October 19,
2017 (count 1) and on or about November 20, 2017 (count 6); assault by means of force
likely to produce great bodily injury (§ 245, subd. (a)(4)) between September 28, 2017,
and October 7, 2017 (count 2); attempted murder (§§ 664, 187, subd. (a)) on or about
November 20, 2017 (count 3); attempting to dissuade a witness (§ 136.1, subd. (c)(1)) on
or about November 20, 2017 (count 4); burglary of an inhabited dwelling (§ 460, subd.
(a)) on or about November 20, 2017 (count 5); and violation of a court protective order
1L.W. had seen Nagle representing the district attorney’s office at a November 3, 2017,
hearing against defendant. Nagle did not handle the hearing and moved for a continuance after
she realized she knew the victim, L.W.
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(§ 166, subd. (c)(1)) on or about November 20, 2017 (count 7). The information also
alleged defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) in count 1; he
personally inflicted great bodily injury on the victim (§ 12022.7, subd. (e)) and
committed the offenses while out on bail (§ 12022.1) in counts 3 through 6; he acted with
premeditation and deliberation (§ 189) in count 3; and another person, other than an
accomplice, was present in the residence during the commission of the burglary (§ 667.5,
subd. (c)(21)) in count 5, making the offense a violent felony. The trial court
subsequently granted defendant’s section 995 motion to set aside the information as to
count 7.
The jury found defendant not guilty of corporal injury to a spouse as alleged in
count 1 but guilty of attempted infliction of injury on a spouse resulting in a traumatic
condition (§§ 664, 273.5, subd. (a)); the jury also found true the deadly weapon
enhancement to count 1. The jury found defendant not guilty of assault with great bodily
injury as alleged in count 2 but found him guilty of the lesser included offense of simple
assault (§ 240). On count 3, the jury found defendant guilty of attempted murder but did
not find that it was premeditated. The jury found defendant guilty of count 4,
intimidating a witness and/or victim by threat/force (§ 136.1, subd. (c)(1)), and count 6,
inflicting injury on a spouse resulting in a traumatic condition (§ 273.5, subd. (a)). The
jury also found true the on-bail and great bodily injury enhancements to counts 3, 4, and
6. The jury was unable to reach a verdict on count 5 (burglary), and the trial court
subsequently dismissed that count.
The trial court sentenced defendant to an aggregate term of 14 years 10 months of
imprisonment: the middle term of seven years on count 3, plus five years for the great
bodily injury enhancement and two years for the on-bail enhancement and one-third the
middle term of six months for count 1, plus an additional four months for the deadly
weapon enhancement. The court also sentenced defendant to 180 days in county jail on
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count 2, to be served concurrently with count 3. The court stayed defendant’s sentences
for counts 4 and 6 pursuant to section 654.
DISCUSSION
I. Relevant Procedural History
Before trial, defendant moved to recuse the Kern County District Attorney’s
Office, asserting the prosecution was overzealous for requesting DNA testing,
overcharging the case, and making no offers despite defendant having no criminal record
as a result of Deputy District Attorney Felicia Nagle’s relationship with L.W. He further
argued if Nagle testified, “Puck would be placed in an improper position of vouching for
his close colleague DDA Nagle’s credibility and perhaps his own.”
The district attorney’s office responded and attached declarations of both Nagle
and Puck. Puck averred Nagle’s input was never sought in determining the propriety of
the charges or assessment of the case, and she had not advocated for how the case should
be charged. Additionally, he explained other factors, rather than the alleged conflict of
interest, motivated his strategic decisionmaking in the case. After defendant’s final
attack on L.W., which involved him strangling her, “the People attempted to initiate a
discussion regarding a possible plea to a determinate term,” which defense counsel
rejected by stating he did not believe defendant would even take a misdemeanor.
Accordingly, “the lack of plea … discussion [wa]s because the Defense refused to engage
in any realistic discussion; not because of any decision by the People or Ms. Nagle.”
Puck had requested DNA testing in part because he “wanted an incontrovertibly
independent source of corroboration” of L.W.’s allegations. Additionally, L.W.
conveyed to Puck her preference that defendant receive the longest sentence possible
because of her fear he would murder her if he was released. The district attorney’s office
argued disqualification was unsupported because there was no evidence Nagle was
involved in a professional capacity in the case or that she advocated for any specific
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result or attempted to influence the prosecution of the case. The California Attorney
General also filed an opposition to the motion for disqualification, reiterating and
emphasizing the points raised in the district attorney’s response.
At the hearing, defense counsel argued there was sufficient evidence to grant the
motion or, alternatively, to permit an evidentiary hearing during which he could question
Nagle. He asserted the cases relied upon by the district attorney’s office and the Attorney
General’s office in their responses discussed 900-person prosecutorial offices in which
the conflicted party had been walled off from the case, or an ethical wall had been put up
to that particular person. Defense counsel argued, based on Puck’s declaration, Nagle
had not been walled off from the case nor was an ethical wall put in place. Rather, Puck
admitted speaking to Nagle about the case and he encouraged her to provide emotional
support to L.W. Defense counsel argued Puck and Nagle were in the same unit, had a
social connection, and tried a death penalty case together, suggesting they were “close
associates at work.” Defense counsel argued the whole Kern County District Attorney’s
Office was “tainted” based on Nagle’s association with L.W. and the fact Nagle could be
a witness. He argued, an evidentiary hearing was merited because Nagle’s declaration
did not say “what communications she had with [L.W.] in response to [Puck’s] text
messages” and because Puck said he told Nagle about his impressions of the case.
Puck explained the Kern County District Attorney’s Office has 85 to 90 attorneys,
five branch locations, and a few hundred support staff. He agreed Nagle should not
prosecute the case because she knows L.W. and it could result in an appearance of
impropriety. However, he argued his relationship with Nagle was “purely professional”
and he had only contacted her outside of work on two occasions. He asserted Nagle only
saw L.W. once a year; they were not close friends or relatives. He noted there were no
allegations either Nagle or he had violated any ethical duties or laws that would
compromise defendant’s right to due process or a fair trial. He further argued it was not a
“no offer case” as defense counsel suggested; rather, he told the previous defense
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attorney they were willing to negotiate at the “pre-pre phase.” Puck waited for the DNA
results before communicating to the defense attorney his willingness to negotiate a
determinative term; he stated if defendant was open to an offer, he was thinking “in the
ballpark of 20 years.” In response, defense counsel said, “‘I don’t even think my client
would take a misdemeanor at this point’” and that he was “just going to get ready for
trial.” Based on the defense attorney’s representation, Puck decided he was not going to
waste his “time and effort to have a difficult discussion with the victim to find what’s the
lowest [sentence] she can live with.” Defense counsel had not approached Puck since
then to attempt to negotiate in good faith.
The court held it could not “find any justification … for recusing the entire District
Attorney’s office.” With regard to Puck, the court further concluded it did not believe
defendant had established a “prima facie showing for recusal that would require … or
even suggest” an evidentiary hearing was needed. Rather, the only suggestions by
defense counsel regarding why an evidentiary hearing was needed sounded “like a fishing
hearing to try to get some more justification for the recusal,” which was not a proper
purpose of an evidentiary hearing. The court also held there was not a showing Puck
could not be fair if he continued as the trial attorney. The court just suggested “he not
talk to Ms. Nagle in any manner about the case.” Accordingly, the court held “based on
all of the above, … there’s no reasonable likelihood of unfair treatment of the defendant
by the District Attorney’s office,” and it denied the motion to recuse.
Deputy District Attorney Alexandra Ottoman tried the case. She moved in limine
to bar any argument L.W. received special treatment or defendant received worse
treatment as a result of L.W. knowing Nagle. The court held a related Evidence Code
section 402 hearing during which L.W. and Nagle testified regarding their relationship.
L.W. and Nagle knew each other through a sorority of which they were both members.
Nagle was not very active and they saw each other a couple times a year. They had
known each other for years. The last time L.W. saw Nagle was the night of the
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November 20, 2017, incident. Nagle went to L.W.’s house. Nagle denied asking the
police what they had done in the case or directing them to conduct any investigation
while there. She recalled seeing a police officer speak to Puck while she was at the
scene.
L.W. denied talking to Nagle about the case and denied receiving any special
treatment from any office as a result of her relationship with Nagle. Nagle denied
exercising any influence over how the case should be handled. Rather, she testified she
tried to keep her distance from the case because she knew L.W. She recalled talking to
Puck about getting him the photos she took, but she denied Puck ever told her his
thoughts or impressions on the case. She also denied asking Puck what the offer was in
the case. Puck at some point told Nagle about L.W.’s house being burglarized.
The court granted the prosecutor’s motion in limine, noting it was not prohibiting
either side from calling Nagle as a witness. The People called Nagle in their case-in-
chief and defense counsel cross-examined her. The court later clarified its grant of the
prosecution’s motion in limine did not preclude defense counsel from attacking Nagle’s
credibility in argument as he could with any witness. And defense counsel could argue
the elements of the crimes were not met, “whether it is because of bias or the facts
themselves.” In closing argument, defense counsel argued the investigation was
improperly influenced by bias.
II. Standard of Review and Applicable Law
A motion to recuse the district attorney “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.” (§ 1424, subd. (a)(1).) “‘The statute “articulates a two-part
test: ‘(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify
the district attorney from acting?’”’” (People v. Bell (2019) 7 Cal.5th 70, 97 (Bell); see
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi).) “A ‘conflict’
10.
exists, under section 1424’s first prong, whenever there is ‘“a reasonable possibility that
the DA’s office may not exercise its discretionary function in an evenhanded manner.”’”
(Bell, supra, p. 97; see People v. Eubanks (1996) 14 Cal.4th 580, 592.) But recusal is not
required unless, under the second prong, the possibility of unfair treatment “‘is so great
that it is more likely than not the defendant will be treated unfairly during some portion
of the criminal proceedings.’” (Bell, at p. 97; see Haraguchi, supra, at p. 713.)
The trial court’s decision on a motion to recuse the prosecutor is reviewed for
abuse of discretion. (Bell, supra, 7 Cal.5th at p. 97; Haraguchi, supra, 43 Cal.4th at p.
711.) The trial court’s factual findings are reviewed for substantial evidence, and its
application of the law will be reversed only if arbitrary and capricious. (Bell, at p. 97;
Haraguchi, at pp. 711–712; People v. Vasquez (2006) 39 Cal.4th 47, 56.)
III. Analysis
Defendant argues his convictions should be reversed and he should be given a new
trial because the trial court erroneously denied his motion to disqualify Puck and the
entire Kern County District Attorney’s Office. He argues Puck had a conflict of interest
that arose from his loyalty to and friendship with Nagle. He asserts Puck treated him
differently because of L.W.’s friendship with Nagle in that there was no plea offer; Puck
decided to collect DNA evidence only after speaking to Nagle; plea bargaining ended
after Nagle’s connection to L.W. was discovered; and the jury found the attempted
murder was not premeditated, evidencing that the case was overcharged. Additionally,
defendant argues Puck admitted he continued to communicate with Nagle regarding his
thoughts and impressions on the case and he encouraged Nagle to reach out to L.W. after
L.W’s house was burglarized. Defendant further asserts the conflict of interest extended
to the entire Kern County District Attorney’s Office because there was no ethical screen
between the conflicted attorneys—Puck and Nagle—and the case. He argues the motion
in limine demonstrated the prosecutor who tried the case, Ottoman, “was not free of her
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own bias and prejudice”; rather, “she had her own axe to grind because members of her
office had been questioned.” The People respond the court did not err in denying
defendant’s motion to recuse the entire district attorney’s office because one deputy
district attorney had a relationship with the victim. They contend Puck, who handled the
case at the time of the recusal motion, did not have a conflict because he had no
relationship with the victim outside of the case. Additionally, they argue substantial
evidence supports the trial court’s determination Nagle’s conflict was not so grave as to
require recusal of Puck or the entire Kern County District Attorney’s Office. The People
assert there was no evidence Puck was influenced by Nagle’s connection to L.W. Nagle
exercised no discretion in the case’s prosecution and did not attempt to influence how the
case was handled; Puck did not plan to call Nagle as a witness at the time of the recusal
motion and he did not involve her in discussions regarding what charges would be filed,
show her police reports, or review the evidence or discuss the merits of the case with her.
They further argue there was no evidence to support defendant’s claim Puck’s actions in
collecting DNA evidence, communicating with Nagle about the case, allegedly refusing
to plea bargain, or expressing animosity toward defense counsel were motivated by bias
or evidenced unfair treatment. They also assert Ottoman’s challenged actions were not
before the court when it decided the recusal motion and, regardless, they did not
demonstrate unfair treatment or undue influence as a result of Nagle’s conflict. Finally,
the People assert, even assuming error, defendant’s claim of prejudice was forfeited and,
irrespective, defendant was not prejudiced—Ottoman did not improperly vouch for Nagle
during closing arguments and there was no reasonable probability her remarks changed
the outcome of the trial in light of the evidence supporting the convictions. There was
also no evidence a plea bargain would have been struck; and defendant did not establish
Ottoman’s opposition to his motions to reduce sentence on count 1 influenced the court’s
decision to deny them.
12.
We conclude the trial court did not abuse its discretion in denying the motion to
recuse; that is, there is substantial evidence to support the court’s conclusion defendant
failed to establish the possibility of unfair treatment by the Kern County District
Attorney’s Office, including by Deputy District Attorney Puck, was “‘so great that it
[was] more likely than not [he would] be treated unfairly during some portion of the
criminal proceedings.’” (Bell, supra, 7 Cal.5th at p. 97; see Haraguchi, supra, 43 Cal.4th
at p. 713.)
Here, the parties do not dispute Nagle had a conflict of interest based on her
connection to L.W. However, defendant’s allegation Nagle’s connection created a
reasonable likelihood defendant was or would be treated unfairly by Puck and the Kern
County District Attorney’s Office was unsupported by the evidence.
“‘[A] motion to disqualify a prosecutor must be based upon a likelihood of
unfairness and not upon mere speculation.’” (Spaccia v. Superior Court (2012) 209
Cal.App.4th 93, 107–108; see Haraguchi, supra, 43 Cal.4th at p. 719 [reiterating it is “an
actual likelihood of unfair treatment, not a subjective perception of impropriety” that can
warrant the significant step of recusal].)
Here, defendant’s contention he was treated or would be treated unfairly by
Deputy District Attorney Puck because of Puck’s relationship with Nagle was not
supported by the record. Puck explained the tactical reasons behind each of his decisions
defendant argues was a result of the alleged conflict of interest. With regard to his
strategy in plea negotiations, Puck detailed that on November 2, 2017, at a prepreliminary
hearing, he offered defendant a plea to section 273.5, subdivision (a), a felony, with
credit for time served and probation. Defendant rejected the offer and confirmed the
matter for preliminary hearing. According to Puck, defendant’s “egregious” acts on
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November 20, 2017, “dramatically changed the disposition of this case.”2 After that,
Puck approached the defense attorney again about plea negotiations, but did not revisit
the issue because a bargain did not seem possible in light of defense counsel’s
representation defendant would not plead to anything above a misdemeanor. Puck
explained the severity of the events giving rise to the charges, particularly defendant’s
violation of the restraining order and attack on L.W. on November 20, 2017, impacted his
decisionmaking with regard to plea bargaining. He explained he sought DNA evidence
following the November 20, 2017, incident due to the severity of the charges and that
they could result in a life sentence. He also wanted an independent source of
corroboration of L.W’s allegations. Puck averred Nagle “was not involved in any way”
in his request for DNA testing of the swabs obtained at the scene on November 20, 2017.
There was no evidence Nagle influenced or was behind Puck’s decisionmaking.
Defendant’s contention to the contrary is based entirely on speculation. Nagle’s mere
presence at the scene after the November 20, 2017, incident and her work relationship
with Puck were insufficient to establish there was a reasonable likelihood Puck would
treat defendant unfairly. This conclusion is further grounded by Puck’s and Nagle’s
repeated attestations that Nagle was not involved in the charging or strategic
decisionmaking related to the case. Accordingly, we cannot conclude the court abused its
discretion in concluding defendant had not made a prima facie showing for recusal or to
suggest an evidentiary hearing on the subject was required. (See People v. Breaux (1991)
1 Cal.4th 281, 294–295 [affirming denial of recusal motion where prosecutor’s wife and
victim were acquaintances and part of same social club but prosecutor had no relationship
to victim or personal interest in case and evidence failed to show any connection which
2Puck averred in his five years as a Kern County prosecutor, this was the first time a
victim/witness was so “brutally attacked—nearly murdered” while the defendant had a pending
case involving the same victim. Puck further declared, “In the 50–100 strangulation cases [he
had] personally reviewed or prosecuted as a prosecutor, this case has some of the most distinct
injuries to a neck that [he had] seen, and thus is treated as an extremely aggravated case.”
14.
justified an inference of bias by the office or prosecutor]; see also People v. Melcher
(2017) 10 Cal.App.5th 160, 163, 170 [mere fact victim and district attorney are married
does not establish disabling conflict where there is no evidence the district attorney has
influenced the prosecution, an ethical wall prevents the district attorney from influencing
the case, and the district attorney waives any rights to participate in the case as a victim
or a member of the victim’s family].) We also do not find persuasive defendant’s
assertion recusal was justified because no formal ethical wall was created between Nagle
and the case. Again, here, there is no evidence Nagle was involved in the case or that she
influenced its prosecution—the purpose of an ethical wall. Nor can we conclude it was
improper for Puck to tell Nagle about the subsequent burglary of L.W.’s house such that
recusal was merited. (See People v. Petrisca (2006) 138 Cal.App.4th 189, 197–198
[recusal not required where prosecutor notified victim’s son, fellow deputy district
attorney, “he would be treated like any other family member who had lost a loved one,
and that he would keep him updated on the status of the case”].)
We also cannot conclude the court erred in refusing to disqualify the entire Kern
County District Attorney’s Office. “Recusal of an entire district attorney’s office is an
extreme step.” (People v. Cannedy (2009) 176 Cal.App.4th 1474, 1481; see People v.
Petrisca, supra, 138 Cal.App.4th at p. 195.) Thus, “‘[d]isqualification of an entire
prosecutorial office from a case is disfavored by the courts, absent a substantial reason
related to the proper administration of justice.’” (People v. Petrisca, supra, at p. 195; see
People v. Hernandez (1991) 235 Cal.App.3d 674, 679–680.) The showing of a conflict
of interest necessary to justify so drastic a remedy must be especially persuasive. (People
v. Petrisca, at p. 195; People v. Hernandez, supra, at p. 678.)
The court did not abuse its discretion in concluding there was insufficient evidence
to establish defendant was more likely than not going to be treated unfairly by the entire
Kern County District Attorney’s Office based upon Nagle’s attenuated relationship to
L.W. Indeed, there was no evidence other members of the district attorney’s office, other
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than Puck and Ottoman, even knew about Nagle’s limited association with L.W.
(Compare People v. Conner (1983) 34 Cal.3d 141, 148–149 [affirming recusal of entire
25-person district attorney’s office where deputy district attorney was victim of
“harrowing” assault, circumstances were “dramatic and gripping,” and communications
about incident were “pervasive” within office], with Trujillo v. Superior Court (1983)
148 Cal.App.3d 368, 370, 373 [affirming denial of recusal motion where deputy district
attorney was victim of charged assault with a deadly weapon but district attorney’s office
was large, containing 65 to 70 felony prosecutors, and communication about event was
minimal].) Rather, there was no evidence to support defendant’s contention that Nagle’s
alleged conflict of interest was so significant that it justified the “dramatic remedy” of
recusal of the entire Kern County District Attorney’s Office. (See People v. Hernandez,
supra, 235 Cal.App.3d at p. 680 [concluding trial court erred in recusing entire district
attorney’s office where there was no evidence information or impressions obtained by
conflicted attorneys would permeate entire office, only speculation; “sheer speculation
does not constitute sufficient evidence of potential bias to recuse an entire prosecutorial
office from a case”].) Accordingly, the court did not err in concluding there was no
justification for recusing the entire district attorney’s office. (See People v. Snow (2003)
30 Cal.4th 43, 86 [trial court properly refused to recuse district attorney’s office without
showing by defendant that prosecution by office would render fair treatment unlikely];
People v. Petrisca, supra, 138 Cal.App.4th at pp. 197–198 [reversing order recusing
entire district attorney’s office where deceased victim’s son was a deputy district attorney
in that office but he did not interfere in prosecution of case and prosecutor never altered
his course of action based on contact with victim’s son; no evidence anyone in district
attorney’s office acted inappropriately].)
To the extent defendant argues his motion should have been granted in light of
Ottoman’s subsequent actions, we agree with the People that the court was required to
decide the motion to recuse based on the evidence before it at the time the motion was
16.
made. Furthermore, defendant’s argument Ottoman’s motion in limine evidenced her
bias which, he contends, arose from Nagle’s limited association with L.W. is tenuous and
unsupported. Rather, there was no evidence Nagle influenced Ottoman’s tactical
decisions in the case.3 Accordingly, because the record before us supports the trial
court’s conclusion recusal of the Kern County District Attorney’s Office was not
justified, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
PEÑA, J
WE CONCUR:
POOCHIGIAN, ACTING P.J.
DETJEN, J.
3We further note recusal was not required simply because Nagle appeared as a witness at
trial. (See People v. Snow, supra, 30 Cal.4th at pp. 86–87 [recusal was not required although
two deputy district attorneys testified at trial]; People v. Merritt (1993) 19 Cal.App.4th 1573,
1580 [“merely because an employee may be a potential witness and credibility of that witness
may have to be argued by the prosecuting attorney, there is no sufficient basis for that reason
alone to recuse an entire prosecutorial office”]; accord, People ex rel. Younger v. Superior Court
(1978) 86 Cal.App.3d 180, 210–211 [where one deputy district attorney may be called as witness
on behalf of prosecution at trial, recusal of entire prosecutorial office is not reasonably required
to ensure integrity of factfinding process, fairness or appearance of fairness at trial, orderly or
efficient administration of justice or public trust, and confidence in criminal justice system].)
17.