Hollywood v. Superior Court

• Decision Date: 12 May 2008
• Docket Number: No. S147954.,S147954.
• Citation: 76 Cal.Rptr.3d 264,182 P.3d 590,43 Cal.4th 721
• Court: California Supreme Court
• Parties: Jesse James HOLLYWOOD, Petitioner, v. The SUPERIOR COURT of Santa Barbara County, Respondent; The People, Real Party in Interest.

182 P.3d 590

43 Cal.4th 721

76 Cal.Rptr.3d 264

Jesse James HOLLYWOOD, Petitioner, v. The SUPERIOR COURT of Santa Barbara County, Respondent The People, Real Party in Interest.

No. S147954.

Supreme Court of California.

May 12, 2008.

Law Offices of James E. Blatt, James E. Blatt, Michael G. Raab, Encino; and Armand Arabian for Petitioner.

No appearance for Respondent.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Donald E. de Nicola, Deputy State Solicitor General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney

General, Steven D. Matthews, Robert M. Snider, Kristofer Jorstad and David F. Glassman, Deputy Attorneys General; Thomas W. Sneddon, Jr., and Christie Stanley, District Attorneys, and Gerald McC. Franklin, Deputy District Attorney, for Real Party in Interest.

Michael A. Ramos, District Attorney, (San Bernardino) and Grover D. Merritt, Lead Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Real Party in Interest.

WERDEGAR, J.

Does a prosecutor's consulting with the makers of a major motion picture that is based on a criminal defendant's story create a conflict sufficient to require recusal of the prosecutor when the defendant is finally brought to trial? Here, the lead prosecutor, bent on tracking down the fugitive defendant in this capital case, gave his case files to a screenwriter/director to make a movie based on the defendant's alleged life and crimes and consulted with the filmmakers during its subsequent production. The defendant, Jesse James Hollywood, was ultimately captured in Brazil and extradited to the United States. He moved to recuse the prosecutor, arguing that the prosecutor's involvement with Hollywood, the film industry, precluded his prosecution of Hollywood, the capital defendant. The trial court found no conflict warranting recusal, but the Court of Appeal independently reviewed the record and granted Hollywood's petition for a writ of mandate, with one justice explaining the prosecutor had permitted "`show business' to cast an unseemly shadow over this case."

In this case and its companion, Haraguchi v. Superior Court (May 12, 2008, S148207) ___ Cal.4th ___, 76 Cal.Rptr.3d 250, 182 P.3d 579, 2008 WL 2003496 we consider the extent to which prosecutorial involvement in cinematic and literary endeavors may give rise to conflicts requiring recusal, as well as the standard for reviewing whether the trial court erred in finding the existence or absence of a disqualifying conflict. We reject the Court of Appeal's conclusion that capital cases are sufficiently different from ordinary criminal cases that application of a higher standard of appellate scrutiny to recusal motions is required. Furthermore, as in Haraguchi, we reverse the Court of Appeal based on its failure to grant appropriate deference to the trial court's ruling and based on the presence in the record of evidence sufficient to support the trial court's conclusion that no disqualifying conflict existed and no unlikelihood of a fair trial had been proven.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from the kidnapping and murder of 15-year-old Nicholas "Nick" Markowitz. As did the Court of Appeal, we draw our description of the crime from the People's opposition to Hollywood's petition for a writ of mandate. Four people have been convicted or pleaded guilty in connection with the Nick Markowitz murder, but Hollywood, of course, has not; thus, our recitation of his involvement is based on pretrial allegations.

According to the People, Hollywood was a drug dealer in the San Fernando Valley and Nick Markowitz's older half brother Ben one of his distributors. Ben and Hollywood had a falling out over money Ben owed Hollywood. Ben broke out the windows of Hollywood's residence. On their way to retaliate, Hollywood, Jesse Rugge, and William Skidmore spotted Nick on the street and kidnapped him, perhaps with the idea of extorting repayment from Ben.

Nick was held hostage for three days. At some point he was released from any physical restraints but did not flee. Hollywood eventually gave another confederate, Ryan Hoyt, a gun and orders to kill Nick. Hoyt and Graham Pressley dug a shallow grave in the foothills outside Santa Barbara. Hoyt and others then drove Nick into the foothills and marched him to the gravesite. Hoyt hit him over the head with a shovel, then shot him. The confederates buried Nick and returned to Santa Barbara.

Within days, Nick Markowitz's body had been found, and Hoyt, Rugge, Pressley, and Skidmore had been captured. Hollywood, however, became a fugitive.

In October 2000, the District Attorney of Santa Barbara County filed a two-count indictment against Hollywood, Hoyt, Skidmore, Rugge, and Pressley. Count 1 charged them with the murder of Nick Markowitz. (Pen. Code, § 187, subd. (a).)¹ It alleged as a special circumstance that defendants had committed the murder during the commission of a kidnapping in violation of section 207. (§ 190.2, subd. (a)(17)(B).) Count 2 charged defendants with kidnapping Nick Markowitz for the purpose of ransom or to commit extortion in violation of section 209, subdivision (a). Santa Barbara County Deputy District Attorney Ronald Zonen prosecuted Hoyt, Skidmore, Rugge, and Pressley and obtained convictions or guilty pleas for each.²

In the spring of 2003, Zonen was contacted by Nick Cassavetes, a film director and screenwriter who wanted to make a film, Alpha Dog, based on the Markowitz murder. Cassavetes asked Zonen "if he could provide any assistance or materials to help create a screenplay, including trial transcripts, witness contacts, etc." According to Zonen, he decided to turn over materials to Cassavetes and act as a consultant in Cassavetes's preparation of Alpha Dog "in the hope that the publicity would result in Hollywood's apprehension."

In March 2005, Hollywood was captured in Brazil and extradited to the United States to be tried for kidnapping and special circumstance murder. Hollywood's defense learned of Zonen's cooperation with the Alpha Dog filmmakers and filed a motion to recuse both Zonen and the entire Santa Barbara County District Attorney's Office. Hollywood alleged Zonen's cooperation in the making of Alpha Dog created a conflict because (1) Zonen had acted illegally and unethically by disclosing confidential documents, including criminal records, police reports, and probation reports, to the filmmakers; and (2) by cooperating in the making of a movie that presented a distorted view of Hollywood, Zonen sought to burnish his own legacy (were he to later obtain Hollywood's conviction) and impaired Hollywood's opportunity to receive a fair trial.

The trial court held two lengthy hearings to examine these contentions. At the first, it announced its tentative conclusions that (1) Zonen had no financial conflict, as he had received no consideration for his cooperation; (2) Zonen's disclosure of confidential information, whether or not a legal or ethical breach, did not rise to the level of a conflict warranting recusal; and (3) Zonen's asserted interest in burnishing his legacy by raising the profile of the case did not amount to an impermissible conflict. Moreover, "even assuming one were to take the view there was a conflict," the trial court could "conceive of no likelihood that it would prevent [Hollywood] from receiving a fair trial." However, the trial court continued the matter for an evidentiary hearing into whether Zonen might have acted improperly by ordering Michael Mehas, an associate producer who had interviewed numerous percipient witnesses while researching the film, not to cooperate with the defense.

At the evidentiary hearing, the trial court allowed the defense to examine Mehas extensively and also posed its own questions to determine what, if anything, Zonen might have done to interfere with the defense. At the close of the hearing, it concluded Mehas had elected to cease cooperation with the defense of his own accord, Zonen had not acted improperly, and the defense had failed to establish any conflict warranting recusal.

Hollywood filed a petition for writ of mandate with the Court of Appeal, which summarily denied relief. We granted review and transferred the case back to the Court of Appeal with directions to issue an order to show cause. After further briefing and argument, the Court of Appeal issued an opinion the same day as the companion case Haraguchi v. Superior Court. Emphasizing the unusual and distinctive facts of these cases, the Court of Appeal exercised its independent judgment and concluded: "In this first impression death penalty case we should not give our imprimatur to Zonen's conduct or embolden other prosecutors to assist the media in the public vilification of a defendant in a case which is yet to be tried. Perhaps without intending to do so, Zonen has potentially infected the jury pool with his views on the strength of the People's case. Prosecutors should try their cases in courtrooms, not in the newspapers, television, or in the movies. . . . To say that Zonen went too far in his attempt to apprehend [Hollywood] is an understatement." On that basis, the Court of Appeal held "justice would not be served if Zonen remains as the trial prosecutor," but it denied recusal of the rest of the district attorney's office.

We granted review in this case and in Haraguchi to consider both the standard of review and its application to prosecutorial recusal motions based on literary or cinematic endeavors.

DISCUSSION

I. Standards for a Motion to Recuse

As we explained in Haraguchi v. Superior Court, supra, ___ Cal.4th at page ___, 76 Cal.Rptr.3d 250, 182 P.3d 579, 2008 WL 2003496 [at p. 5]: "Section 1424 sets out the standard governing motions to recuse a prosecutor: such a motion `may not be granted unless the evidence shows that a conflict of interest...