Packer v. Superior Court of Ventura Cnty., 2d Civil No. B245923

CourtCalifornia Court of Appeals
Writing for the CourtHOFFSTADT, J.
Citation161 Cal.Rptr.3d 595
Parties Joshua Graham PACKER, Petitioner, v. The SUPERIOR COURT of Ventura County, Respondent; The People, Real Party in Interest.
Docket Number2d Civil No. B245923
Decision Date29 August 2013

161 Cal.Rptr.3d 595

Joshua Graham PACKER, Petitioner,
The SUPERIOR COURT of Ventura County, Respondent;

The People, Real Party in Interest.

2d Civil No. B245923

Court of Appeal, Second District, Division 6, California.

Filed August 29, 2013

Stephen P. Lipson, Public Defender, and Michael C. McMahon, Chief Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Zee Rodriguez, Deputy Attorneys General; Gergory D. Totten, District Attorney, and Michelle J. Contois, Deputy District Attorney, for 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, 146 Cal.Rptr.3d 742 ( 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 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.


I. Pending Charges

Packer is charged with three counts of first degree murder (§§ 187, 189) in the

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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 sevenpeople, along with 350 pages of attachments. In opposing Packer's motion and compulsory process objection, the Ventura County District 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 cochair 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 25 other boys. At the summer camp, Packer told Kyle and others he had 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" Web page 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 camp. In 2005 or 2006, Elizabeth and two other girls hosted a

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Myspace Web page 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."

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.


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

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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 showing of his entitlement to recusal during the first stage. ( Spaccia, supra, 209 Cal.App.4th at p. 111, 146 Cal.Rptr.3d 742.)

Packer argues that this procedure violates his right to...

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