People v. Superior Court (Greer)

• Court: California Supreme Court
• Writing for the Court: MOSK; TOBRINER
• Citation: People v. Superior Court (Greer), 137 Cal.Rptr. 476, 19 Cal.3d 255, 561 P.2d 1164 (Cal. 1977)
• Decision Date: 30 March 1977
• Docket Number: S.F. 23505
• Parties: , 561 P.2d 1164 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; John Michael GREER et al., Real Parties in Interest.

Page 476

137 Cal.Rptr. 476

19 Cal.3d 255, 561 P.2d 1164

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent John Michael GREER et al., Real Parties in Interest.

S.F. 23505.

Supreme Court of California.

March 30, 1977.

As Modified on Denial of Rehearing April 28, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., and Derald E. Granberg, Deputy Atty. Gen., for petitioner.

Robert N. Tait, Dist. Atty. (San Luis Obispo), and Daniel A. Hilford, Deputy Dist. Atty., as amici curiae on behalf of petitioner.

No appearance for respondent.

Patrick R. Murphy, Public Defender, Charles H. James, Asst. Public Defender, Richmond, and Michael J. Oliver, Pleasant Hill, for real parties in interest.

Ephraim Margolin and Nicholas Arguimbau, San Francisco, as amici curiae.

MOSK, Justice.

The People seek a writ of mandate compelling respondent trial court to permit a district attorney to conduct a prosecution of a serious criminal charge despite the fact the court is convinced the prosecutor suffers from a conflict of interest which might prejudice him against the defendants and undermine his impartial exercise of judgment. The Attorney General asserts that judicial intervention disqualifying the district attorney violates the principle of the separation of powers (Cal.Const., art. III, § 3) by usurping a function reserved to the executive. We conclude the separation of powers contention lacks merit, and that trial courts have the authority to recuse prosecuting attorneys in appropriate circumstances. We further find no abuse of that power by the trial judge herein, and therefore conclude that the writ should be denied.

Steven Anderson was killed on July 5, 1975, in Contra Costa County. On December 5 the Contra Costa District Attorney filed an information against defendant Rose Anderson (the victim's ex-wife) and defendant John Michael Greer, charging them with murder. The information also alleged, as to both defendants, the 'special circumstance' that the murder was carried out pursuant to an agreement to give and accept valuable consideration.

Both before and after the filing of the information defendants sought to have the district attorney disqualified, alleging a conflict of interest arising largely from the employment in the district attorney's office of the victim's mother, Martha Anderson. ¹ On January 8, 1976, the superior court granted defendants' motion to recuse the district attorney. The court made its ruling on the basis of evidence in the form of sworn declarations and testimony taken at the time of the preliminary hearing.

As might be expected, the circumstances which gave rise to this unusual order were themselves unusual. Martha Anderson had been employed by the Contra Costa District Attorney as a 'discovery clerk' for over a year, and was assigned to the very office in which the prosecution of this case was being handled. Her grief over her son's death was at times made evident to her fellow workers. In addition, the prosecution's theory involves proof of a protracted dispute between defendant Rose Anderson and the victim over the custody of their child, Paul. As grandmother of the child, not only is Martha Anderson admittedly well acquainted with the details of this controversy, but she is scheduled to be a material witness for the prosecution. Moreover, she potentially stands to gain custody of the child if defendant Rose Anderson is convicted; indeed, at the time of the preliminary hearing a contested guardianship proceeding between the two women was pending.

The latter dispute arose when, upon the arrest of Rose Anderson, the police delivered Paul into the custody of Martha Anderson. Defendants contend the arrest was in derogation of an offer made by Rose Anderson's attorney for her voluntary surrender if the district attorney proposed to take her into custody. Evidence was introduced to show that the police acted after consultation with the district attorney's office, and gave the child into the custody of Martha Anderson despite their knowledge of defendant Rose Anderson's arrangements to place him elsewhere. Defendants argue that this incident adds to the appearance of a conflict of interest on the part of the district attorney's office. ²

The trial court concluded in these circumstances that the district attorney should be disqualified. The court then issued two orders directed to the Attorney General, who had the power to assume the prosecution under Government Code sections 12550 and 12553. ³ The first order, issued on January 8, 1976, in conjunction with the disqualification ruling, cited the Attorney General 'to appear' before the court 'to show cause why he should not prosecute' the case. Upon the Attorney General's appearance on the order to show cause, the court on January 20 reaffirmed its earlier decision to disqualify the district attorney and issued a second order, directing the Attorney General to 'appear' in court on January 27--the date set for a ruling on defendants' motion to dismiss under Penal Code section 995--and on January 29, the scheduled date of a trial readiness conference. Trial remained set for February 2. However, on January 23 the Attorney General obtained a stay of the proceedings pending a decision on his application for an extraordinary writ requiring the trial court to vacate its orders of January 8 and 20.

We divide our review of the writ application into four parts. The first evaluates the Attorney General's claim that the doctrine of separation of powers generally prevents trial courts from disqualifying the designated representatives of the executive branch in criminal cases. Second, we consider whether, even if such power exists, it may be exercised to disqualify a prosecutor on the ground that he suffers a conflict of interest which may prejudice him against the accused. We then reach the question whether the court in this case abused such discretion as it had. Our final concern is the validity of the trial court orders which followed the disqualification order and were directed to the Attorney General.

I. Power of the Trial Court to Disqualify a District Attorney

Undeniably there are circumstances in which the participation of a district attorney in a criminal trial as prosecutor would be improper. For example, it would not be proper for such an attorney to prosecute a client or former client, without that client's consent, for a crime 'relating to a matter in reference to which (the attorney) has obtained confidential information by reason of or in the course of his employment by such client or former client.' (Rules of Prof. Conduct, rule 4--101; Young v. State (Fla.App.1965) 177 So.2d 345; State v. Leigh (1955) 178 Kan. 549, 289 P.2d 774; People v. Gerold (1914) 265 Ill. 448, 471--480, 107 N.E. 165, 175--178; see Corbin v. Broadman (1967) 6 Ariz.App. 436, 433 P.2d 289; Annot., 31 A.L.R.3d 953, 963--978.) Nor should a prosecutor try a defendant with whom he is embroiled in civil litigation. (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709; Sinclair v. State (1976) 278 Md. 243, 363 A.2d 468.)

The Attorney General does not defend the foregoing hypothetical prosecutorial conduct, and, absent constitutional considerations, it seems clear a trial court could disqualify the attorney in question. ⁴ However, the Attorney General asserts that the constitutional doctrine of the separation of powers severely restricts the occasions upon which the courts may act to prevent such improprieties. Action by a judge to disqualify a district attorney who proposes to proceed despite an undeniable conflict of interest is said to infringe on the executive power of designating the People's attorney in a criminal prosecution. While the Attorney General allows for some judicial sanctions against improper prosecutorial participation, he contends these remedies are limited to reversal of any resulting conviction and professional discipline of the offending prosecuting attorney. He further argues that any permissible judicial action must be limited to those situations in which failure of the court to act would result in a violation of 'minimum due process standards.'

Article III, section 3, of the California Constitution provides: 'The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the other except as permitted by this Constitution.' Judges must be as vigilant to preserve from judicial encroachment those powers constitutionally committed to the executive as they are to preserve their own constitutional powers from infringement by the coordinate branches of government. The cases which have sought to define the boundaries of executive discretion in a prosecutorial context, however, lend little support to the People's attack on the authority of a court to disqualify a prosecutor whose participation at trial would be manifestly improper.

The Attorney General places emphasis on People v. Municipal Court (Pellegrino) (1972) 27 Cal.App.3d 193, 103 Cal.Rptr. 645; and People v. Smith (1975) 53 Cal.App.3d 655, 126 Cal.Rptr. 195. Pellegrino upheld the district attorney's authority over the decision whether to charge an individual with a criminal offense. Noting the provision that all prosecutions shall be conducted by the authority of the People of the State of California (Gov.Code, § 100, subd. (b)), the Court of Appeal barred a trial court from accepting for filing criminal charges instituted by private citizens without the approval of the district attorney. Smith involved a parallel situation, in which a trial court attempted to consummate its own 'plea bargain' over the district attorney's objection, by allowing the defendant to withdraw his not guilty plea to the proffered charge and then in effect charging him with a different, unincluded offense to which a guilty plea was...