People ex rel. Younger v. Superior Court

• Decision Date: 07 November 1978
• Citation: 150 Cal.Rptr. 156,86 Cal.App.3d 180
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, by their attorney, Evelle J. Younger, Attorney General, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF SAN BERNARDINO, Respondent; John Manuel RABACA, Leroy French, and Ernest Ronald Roybal, Real Parties in Interest. PEOPLE of the State of California, by their attorney, James M. Cramer, District Attorney of the County of San Bernardino, Petitioner, v. The SUPERIOR COURT of the State of California, COUNTY OF SAN BERNARDINO, Respondent; John Manuel RABACA, Leroy French, and Ernest Ronald Roybal, Real Parties in Interest. Civ. 19422, Civ. 19423.

Page 156

150 Cal.Rptr. 156

86 Cal.App.3d 180

PEOPLE of the State of California, by their attorney, Evelle J. Younger, Attorney General, Petitioner, v.SUPERIOR COURT of the State of California, COUNTY OF SAN BERNARDINO, Respondent;

John Manuel RABACA, Leroy French, and Ernest Ronald Roybal, Real Parties in Interest.

PEOPLE of the State of California, by their attorney, James M. Cramer, DistrictAttorney of the County of San Bernardino, Petitioner, v.The SUPERIOR COURT of the State of California, COUNTY OF SAN BERNARDINO, Respondent;

John Manuel RABACA, Leroy French, and Ernest Ronald Roybal, Real Parties in Interest.

Civ. 19422, Civ. 19423.

Court of Appeal, Fourth District, Division 2, California.

Nov. 7, 1978.

As Modified Nov. 17, 1978.

[86 Cal.App.3d 185] Evelle J. Younger, Atty. Gen., Karl J. Phaler and J. Richard Haden, Deputy Attys. Gen., James M. Cramer, Dist. Atty., and Joseph A. Burns, Deputy Dist. Atty., for petitioners.

No appearance for respondent.

Charles E. Ward, Public Defender, Anne L. Blanchard, Deputy Public Defender, Beverly Quinn, Upland, and J. Michael Welch, for real parties in interest.

OPINION

KAUFMAN, Associate Justice.

These are consolidated mandate proceedings by which the District Attorney of San Bernardino County and the Attorney General of the State of California seek to annul orders of the San Bernardino Superior Court recusing the entire prosecutorial office of the district attorney as prosecutor and ordering the Attorney General to undertake the prosecution in a pending case in which real parties in interest Rabaca, French and Roybal (hereafter referred to as defendants or real parties) are charged by indictment with murder.¹

The essential question presented is whether the trial court abused its discretion in recusing the district attorney and his entire prosecutorial staff because one of his deputies may be called as a witness at trial to testify in respect to the circumstances surrounding two pretrial identifications of the defendants as the perpetrators of the crime.We determine that in exercising its discretion the trial court employed an incorrect standard of disqualification but that, in any event, neither rule 2-111(A)(4) of the Rules of Professional Conduct of the State Bar nor the decisions in People v. Superior Court(Greer), 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, or Comden v. Superior Court, 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971, require recusal of the entire prosecutorial office of the district attorney in the circumstances shown and that the order made, which precludes the district attorney from performing the statutory duties of his elected office, constituted an abuse of discretion in the absence of a showing that such a sweeping order was reasonably required to insure the integrity of the fact-finding process, the fairness or appearance of fairness of trial, the orderly or efficient administration of justice, or public trust and confidence in the criminal justice system.The invalidity of the order recusing the district attorney renders superfluous and unwarranted the order commanding the Attorney General to assume the prosecution, and it is unnecessary for us to determine whether the trial court would have been legally authorized to make such an order were the recusal order proper.

The operative facts are not in dispute.On May 14, 1977, William Gonzales, a prisoner at the California Institution for Men at Chino was stabbed to death by other inmates.In the course of an investigation conducted by a California Department of Corrections investigator, another C.I.M. inmate, John Spinelli, made a photographic identification of real parties in interest Rabaca and French as participants in the crime.

Several weeks later another C.I.M. inmate, Robert E. Myers, communicated with San Bernardino Sheriff's Detective Thomas Denham, indicating he had information concerning the crime but would divulge it only in the presence of Detectives Denham and O'Rourke and someone from the district attorney's office.As arranged by Detective Denham, on June 14, 1977, Thomas W. Spivey, a San Bernardino County Deputy District Attorney assigned to the Ontario office interviewed Myers in the presence of Detectives Denham and O'Rourke and Joseph D. Canty, Jr., the Chief Deputy San Bernardino County District Attorney in charge of the Ontario office.Neither detective took any active part in the interview.They were not involved in the investigation of the case and merely accompanied Spivey and Canty to introduce them to Myers.The interview was tape recorded.Myers stated he had been asked to take part in and was an eyewitness to the murder.He recounted the events that occurred before, during and after the murder and stated that real parties Rabaca, French and Roybal were participants in the crime.He said that Rabaca, known to him as "Charlie Brown," did the stabbing, that French, who had solicited Myers' participation and whom he knew by name, held the victim while Rabaca stabbed him and that Roybal, known to him by the name Roybal and also as "Kilroy," had planned and more or less directed the killing.Rabaca, French and Roybal were all in the same housing unit as Myers, and he had seen them on previous occasions.During the interview, Spivey displayed to Myers a set of 13 mug shots from which Myers pointed out Rabaca (as "Charlie Brown") and French.Roybal's photograph was not among those shown to Myers because Spivey had theretofore been unaware of Roybal's involvement.

On June 21, 1977, shortly before Myers' testimony was to be presented to the grand jury, Spivey prepared and showed to Myers, again in the presence of Detective Denham, a second set of mug shots, including Roybal's.Myers immediately selected Roybal's photograph as that of the man he had identified as Roybal and "Kilroy."This interview of Myers lasted only about two minutes and consisted only of Myers' identification of Roybal.² It was not tape recorded.

Deputy District Attorney Spivey represented the People at various pretrial proceedings.On August 31, 1977, during hearing on a defense challenge to the pretrial photographic identification procedures involving Myers on the ground they were impermissibly suggestive, Spivey was called as a witness on behalf of the People.He gave testimony about the two interviews with Myers and Myers' identification of real parties.He also testified that it was a departure from usual investigative procedure for a deputy district attorney to make the initial presentation of a photographic display to an identification witness but that this was occasioned by Myers' willingness to tell what he knew only in the presence of the two sheriff's detectives and a member of the district attorney's staff.While Spivey was on the witness stand, another deputy district attorney acted as counsel for the People.Thereafter, however, Spivey resumed his role as prosecutor and presented argument on the fairness of the pretrial photographic identification procedure.Although it does not appear he specifically argued his own credibility, he did urge that the photographic displays were not unduly suggestive and the procedures employed were fair.

Although defense counsel made no objection to Spivey's being called as a witness and testifying or to his subsequently resuming the role of prosecutor and arguing, the court, referring to the Greer decision and an opinion of the ethics committee of the Los Angeles County Bar Association, expressed its concern that Spivey might be a material witness at trial and indicated to defense counsel that if they intended to make a motion to recuse the district attorney they should do so at an early date so that postponement of the trial might be avoided.Defense counsel expressed their interest in making such a motion, and the proceedings were continued to September 2.On that date the hearing on the validity of the pretrial identification procedures and several other motions were concluded and defense counsel presented and argued their motion to recuse the district attorney.On the motion concerning the pretrial identification procedures, the court ruled without prejudice that "neither (photographic) lineup was arranged in such an unduly prejudicial fashion that the rights of the defendants were violated."Relying principally on the Greer decision and rule 2-111(A)(4) of the Rules of Professional Conduct of the State Bar, the court granted the motion to recuse the district attorney notwithstanding Mr. Spivey's representation that it had already been determined in his office that he would not be the prosecuting attorney at trial.³The court also ordered the Attorney General to show cause why he should not be required to take over prosecution of the case.

In response to the order to show cause, the Attorney General filed a motion to vacate the order recusing the District Attorney of San Bernardino County and presented to the court declarations substantiating that neither Deputy Spivey nor Chief Deputy Canty would be the prosecutor at trial.The motion to vacate was heard and argued on September 16.The court denied the motion and ordered the Attorney General to assume prosecution of the case stating there was a reasonable probability Spivey would be called by one party or the other to testify at trial, that disqualification of the district attorney was therefore ethically required and that failure to grant defendants' motion would provide a built-in basis for appeal.⁴

Rule 2-111(A)(4) of the Rules of Professional Conduct of the State Bar of California ⁵(hereinafter rule 2-111(A)(4)) reads:

"(A) In general

". . . ge

"(4) If upon or after undertaking employment, a member of the State Bar knows or should know that he or a lawyer in his firm Ought to be called as a witness on behalf of his client in litigation concerning the subject matter of such employment he shall withdraw from the conduct of the trial and his firm(, if any,...