People v. Vasquez

• Decision Date: 10 July 2006
• Docket Number: No. S128854.,S128854.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andrew VASQUEZ et al., Defendants and Appellants.

45 Cal.Rptr.3d 372

39 Cal.4th 47

137 P.3d 199

The PEOPLE, Plaintiff and Respondent, v. Andrew VASQUEZ et al., Defendants and Appellants.

No. S128854.

Supreme Court of California.

July 10, 2006.

Nancy J. King, San Diego, under appointment by the Supreme Court, for Defendant and Appellant Andrew Vasquez.

Sylvia Whatley Beckham, under appointment by the Supreme Court, for Defendant and Appellant Anthony Fregoso.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kristofer Jorstad, Victoria B. Wilson, Steven D. Matthews, Mary Sanchez and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

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Does the erroneous denial of a defendant's motion to disqualify the prosecuting district attorney's office for a conflict of interest (Pen.Code, § 1424) constitute a deprivation of due process? We conclude that not all erroneous denials under Penal Code section 1424 result in due process violations; we further conclude the participation of a conflicted prosecutor in this case did not do so. We therefore reject defendants' contention that the Court of Appeal erred in failing to assess the prejudice flowing from constitutional error. We further conclude that the trial court's failure to disqualify the prosecutor in this case, an error under Penal Code section 1424, was not prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants Andrew Vasquez and Anthony Fregoso were charged with the murder of Armando Ayala, with allegations Vasquez personally used a knife and Fregoso personally used a baseball bat in the crime. (Pen.Code, §§ 187,

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12022, subd. (b)(1).)¹ After a joint trial, both defendants were found guilty of second degree murder, the use allegations were found true, and they were each sentenced to 16 years to life in prison.

The facts of the offense are not important to the issues we address here. As summarized by the Court of Appeal (neither party disputes the lower court's accuracy), the trial testimony showed, in brief, the following: Defendants and the victim belonged to rival "tagging crews." On the day before the offense, Ayala (the victim) and two other young men hit, kicked, and sprayed a young woman in the face with mace, warning her against interfering with their crew. The young woman told Fregoso of the attack, and the next day, apparently in retaliation, defendants approached Ayala near the entrance to Fairfax High School. As Fregoso positioned himself in front of Ayala, Vasquez approached him diagonally from behind, holding something (some witnesses saw a knife) in his hand. Warned by a friend, Ayala turned and sprayed pepper spray as Vasquez, with a side-arm motion, stabbed him in the chest with a knife. The wound, which severed an artery and penetrated Ayala's lung, was fatal.

The motion to disqualify the district attorney's office arose from the family relationship between defendant Vasquez and two employees of the Los Angeles County District Attorney (LACDA). According to Vasquez's trial counsel, and undisputed by the People, Vasquez's mother had been, at the time of trial, an administrator in the LACDA's office for about 13 years. Her husband, Vasquez's stepfather, had been employed for about the same period as a deputy district attorney. After the Attorney General refused the LACDA's request that he assume prosecutorial duties, the LACDA assigned Deputy District Attorney Patricia Wilkinson to prosecute the case. Wilkinson declared she did not know Vasquez's mother or stepfather, though according to defense counsel the mother recalled once having discussed shoe shopping with Wilkinson.

Defendants, through counsel, indicated to Prosecutor Wilkinson their willingness to waive a jury trial and have the charges adjudicated by the assigned trial judge, the Honorable Norman Shapiro. Wilkinson, according to Vasquez's attorney, declined even to raise the possibility with her superiors, giving a reason that prompted Vasquez's attorney to make an oral recusal motion under section 1424, which counsel for Fregoso joined. According to defense counsel, Wilkinson said she "didn't want to do anything that could make it look like there had been any kind of favor toward Mr. Vasquez because of his father being ... in the district attorney's office." This, defense counsel suggested, constituted evidence that Vasquez was "being treated differently because of who his father is." While the prosecutor had no obligation to waive a jury trial, counsel argued, Wilkinson's response indicated the LACDA's concern that it might

[137 P.3d 53]

appear to be showing favoritism toward Vasquez had created an "extra layer" of analysis in the office's decisionmaking about Vasquez, one that would not be present if a different office prosecuted the case.

In response, Prosecutor Wilkinson gave three reasons she decided not to waive a jury: she "felt a jury just wouldn't have any difficulty with the evidence"; Judge Shapiro was himself a former member of the LACDA's office and Wilkinson "did not wish to put [the trial] court in a position of having its integrity questioned" in the event of a prodefense ruling; and, the victim's family having been upset because of changes in LACDA staffing on the case and having conveyed concerns "that perhaps we were not pursuing things," Wilkinson "wanted to insure that there was no appearance of any impropriety on the part of our office in handling this."

The trial court denied the recusal motion on the ground the prosecutor had given "an adequate reason" for declining to waive a jury trial, to wit, that "based on the court's long experience as a prosecutor and with this particular office," it would be unwise to try this case to the court.

The case was then tried to a jury, which was unable to reach a verdict. According to defense counsel's discussion with the jurors after the trial court declared a mistrial, two jurors had voted for a verdict of first degree murder, six for second degree murder, three for voluntary manslaughter, and one for acquittal.

The matter was assigned to the Honorable Larry Fidler for retrial. Defendants renewed their recusal motion, this time in written form relying on section 1424 and defendants' due process rights under the United States and California Constitutions. The motion again relied on the prosecutor's fear of apparent favoritism as a reason for declining to try the case to Judge Shapiro, as well as on three additional factual circumstances. First, after the mistrial, the prosecutor had refused to accept pleas to voluntary manslaughter, continuing instead to demand pleas to at least second degree murder, and "is still charging ahead with her assassination [first degree murder] theory." Second, at the first trial, "the case became a cause celebre with numerous deputy district attorneys hanging around the courtroom." Counsel amplified the latter point at the motion hearing, stating that "this case has a lot of intensity because of the fact of who Mr. Vasquez's father is, and . . . the atmosphere was electric, it was very intense and it was very uncomfortable." Finally, the defense planned to call Vasquez's stepfather as a witness at the retrial; he would testify Vasquez habitually carried a pocketknife.

Prosecutor Wilkinson responded that it was Judge Shapiro's prior relationship with the LACDA's office and the undesirability of putting him in a

[137 P.3d 54]

position "of having his decision perhaps questioned" that had led her to decline a court trial before him, though she also referred separately to "avoid[ing] the appearance of impropriety," without specifying whether her reference was to an appearance on the part of Judge Shapiro or the LACDA. With regard to the plea offer, Wilkinson stated she believed the facts of the case supported first degree murder on a theory of premeditation or lying in wait and did not show provocation so as to support a voluntary manslaughter verdict. She was willing, as her office had always been, to accept pleas of second degree murder.

The trial court denied the renewed motion to recuse, reasoning that the stepfather's potential role as a witness was not grounds for disqualifying the entire LACDA office and Wilkinson's refusal to waive a jury before Judge Shapiro was based on the identity of the trial judge, not the family relationship between Vasquez and LACDA employees. For these reasons, the court found, defendants had not met their burden under section 1424 of showing a likelihood of unfair treatment.

The case was tried to dual juries, which convicted defendants of second degree murder. The Court of Appeal affirmed, holding the recusal motion should have been granted but defendants, on appeal, had failed to show prejudice from the error. The appellate court found Vasquez's family relationship with LACDA employees had caused a conflict of interest for that office, a conflict sufficiently severe as to indicate a likelihood defendants would not receive fair treatment at all stages of the criminal proceedings. (§ 1424; People v. Eubanks (1996) 14 Cal.4th 580, 593-594, 59 Cal.Rptr.2d 200, 927 P.2d 310.) Both the existence of a conflict and its severity were evidenced by the prosecutor's admission that concerns over appearing to favor Vasquez had motivated, at least in part, her decision not to waive a jury trial, and by the prosecutor's refusal after the first jury hung to offer a plea less than second degree murder. The record showed pressure from the victim's family "created the potential for unfairness in this case where the prosecutor felt an obligation to treat Vasquez more harshly in order to avoid a charge of favoritism."

In light of its view of the conflict, the Court of Appeal observed, it would have granted defendants relief from the erroneous recusal denial had they sought relief before trial by...