Conflict of interest and attorney’s obligation

California Courts of Appeal Reports

HARAGUCHI v. SUPERIOR COURT, 143 Cal.App.4th 846 (2006) 49 Cal.Rptr.3d 590 MASSEY HARUSHI HARAGUCHI, Petitioner, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. No. B191161 Court of Appeal of California, Second District. October 5, 2006 REVIEW GRANTED December 20, 2006

[EDITORS’ NOTE: REVIEW GRANTED BY THE CALIFORNIA SUPREME COURT; PURSUANT TO RULES 976, 976.1 and 979 OF THE CALIFORNIA RULES OF COURT, THIS OPINION IS NOT CERTIFIED FOR PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES ONLY.]

Appeal from the Superior Court of Santa Barbara County,
No. 1203536, Frank J. Ochoa, Judge. Page 847

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 848

Sanger & Swysen and Rober M. Sanger for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief
Assistant Attorney General, Pamela C. Hamanaka, Assistant
Attorney General, Steven D. Matthews and David F. Glassman,
Deputy Attorneys General, for Respondent.

Thomas W. Sneddon, Jr., District Attorney, and Gerald McC.
Franklin, Deputy District Attorney, for Real Party in
Interest.

OPINION

YEGAN, J.

Massey Harushi Haraguchi petitions for a writ of mandate
directing the respondent trial court to grant his motion to
recuse Deputy District Attorney Joyce Dudley (Dudley) and
the Office of the District Attorney of Santa Barbara
County. According to petitioner, “Dudley has a conflict of
interest based on the fact that she is prosecuting
petitioner in a rape by intoxication case at the same time
she is promoting a self-published novel about a rape by
intoxication case which includes details from petitioner’s
case.” We will grant the petition as to Dudley with the
hope that this case of first impression will make a case of
lasting impression.[fn1]

Factual and Procedural Background

On September 14, 2005, an information was filed charging
petitioner, inter alia, with rape of an intoxicated person.
(Pen. Code, § 261, subd. (a)(3).)[fn2] Page 849

On April 25, 2006, petitioner filed his recusal motion.
The motion was based on Dudley’s self-published novel,
Intoxicating Agent, and her promotion of the novel, which
was published in January 2006 by Infinity Publishing.
According to Infinity Publishing’s Web site, it charges “a
one-time setup fee of only $499. For this, your book will
be . . . shipped to you as a real, hardcopy book in about 8
weeks from submission. It will be made available for sale
on our ecommerce Web site, submitted to amazon.com and
others, and sold to bookstores on a returnable basis. . . .
We will then pay you royalties each month on all sales of
your book.”

The Novel

The novel concerns the exploits of Santa Barbara County
Deputy District Attorney Jordon Danner. According to an
article dated March 31, 2006, and published on the Web site
of the Santa Barbara Independent, a local newspaper,
“Dudley admits [Danner] is a pumped-up version of herself.”
In an article published on Dudley’s Web site, she is quoted
as stating that Danner is “`Joyce [Dudley] on steroids.'”
The novel describes Danner as “zealous . . . about seeking
justice” and “brave” in “stepping up and fighting for it.”
Danner has “the poise and sexiness of a dancer, the brains
of a scholar, and the protective passion of a mother.”

The book jacket summarizes the novel as follows: “While
prosecuting a volatile arson/murder case, . . . Jordon
Danner finds herself in the untenable position of falling
under the influence of her adoring and seductive
investigating officer. Jordon’s attraction to him collides
with her love and devotion for her husband, family, and
justice. In an effort to resolve her heart-wrenching
conflict, as well as to consider the hurdles she now faces
in the murder case and an impending trial of an alleged
rapist, Jordon retreats to her remote mountain home. This
story occurs in an astonishing 48 hours during which time
Jordon confronts a diverse assemblage of life-altering,
intoxicating agents.”

In the novel the victim of the rape is Diana Johnson. Diana
is described as “devoted to her job, community, family,
and friends.” “Her afternoons and evenings were filled with
ongoing community outreach programs, one of which was
devised by her. The project she created involved children
and the elderly working together in a vegetable garden.” At
the time of the rape, Diana was intoxicated from alcohol.
“[L]ab reports revealed that the only intoxicating agent
present in her system was alcohol, which was found at,
`extremely high levels.'” Danner concludes that Diana is an
alcoholic “in denial about her alcoholism.”

The defendant in the novel is 42-year-old Ernesto Cantera,
described as having a “bloated” face, a “protruding belly,”
and “filthy hands.” “Talk about Page 850 felony ugly,
[Danner] thought, he looks just like the pig he is!”
“Felony ugly,” the author notes, is “[a]n in-house
expression used by some prosecutors to describe a defendant
who fits the stereotype of a perpetrator of the crime for
which he is charged.” Danner was “saddened . . . especially
because Cantera turned out to be so despicable.” “`This
dirt bag really did a number on her [Diana].'” Danner said
to herself, “`I’ll get you, you heartless bastard . . . for
Diana’s sake and for all the others who could follow.’
[¶] But if I try . . . and don’t succeed, then all
he’ll learn is that he can get away with victimizing woman
[sic]. I can’t try this one . . . unless I can win it.”

Cantera had sexual intercourse with Diana on the beach.
Cantera told the police that Diana had consented to having
sex. Diana had no memory of the events. “She dreaded
telling the jury about how much she’d had to drink and that
she remembered nothing.” Danner believed that “Diana
couldn’t remember any part of the rape because she was
experiencing an alcoholic black out [sic].” Danner further
believed that, because of the blackout, Diana “was
incapable of giving legal consent to having sex with the
defendant.”

Arty Lang is Cantera’s friend. He works as a bartender and
is an avid photographer. Lang is described as “a
skinny-dark-haired-beatnik” and “[a] skinny man with
stringy, black hair.” Lang took photographs of Cantera
having sex with Diana on the beach. He tried to blackmail
Diana by threatening to publish the photographs on the
Internet if she cooperated with the prosecution. Law
enforcement officials arrested Lang while he was showing
the photographs to Diana. The officials apparently
convinced Lang “that the best thing he can do is come clean
and testify for the prosecution.”

Cantera’s counsel, Ted Ross, had a “reputation for being
both disingenuous and manipulative.” He told Danner that
his client would plead guilty to a reduced charge of sexual
battery provided that she agreed “to probation and no
additional jail time.” On April 6, 2006, Ross appeared in
court and inquired about his offer. A deputy district
attorney standing in for Danner said that Ross’s offer was
rejected and that Danner was going to kick his “ass.” The
deputy district attorney later explained to Danner, “[I]t’s
true, you will kick his ass. Because in a month’s time your
victim will walk into that courtroom with her head held
high. Beyond that, it sounds like young [Lang is] going to
give you all the corroborating testimony and photos you
could hope for.”

Recusal Motion

In his recusal motion, petitioner alleged: “[Dudley’s]
book contains a lengthy fictional account of a rape by
intoxicating agent. Just like [petitioner’s] trial, [the]
Deputy D.A. arranged for the fictional trial to begin in
April Page 851 2006. These and other coincidences lead
[petitioner] to fear that the lines between fact an[d]
fiction have been obscured by the publication of the book,
and that the District Attorney’s obligation to exercise
discretion and seek justice impartially is now compromised
by her financial and emotional interests in promoting her
book.”

In support of the recusal motion, petitioner’s counsel
declared that, in her novel, Dudley had “incorporated facts
of the real District Attorney’s investigation of
[petitioner’s] case. . . .” “Arty Lang shares many
attributes of [petitioner]. Arty Lang is a photographer.
[Citation.] [Petitioner] is a photographer. Arty is
described as a `skinny-dark-haired-beatnik.’ [Citation.]
Petitioner, who weighs 140 pounds and is 5′ 7″, is thin. He
has black hair. He has facial hair in a style called a
`soul patch,’ a style associated with beatniks.”

Petitioner’s counsel declared that Dudley “has been
promoting the book throughout the county of Santa Barbara.”
The book is being sold in at least two local bookstores.
Dudley conducted a book signing at one of the bookstores
and at the Women’s Center of the University of California
at Santa Barbara. On April 4, 2006, a local television
station, KEYT, interviewed Dudley about the book. The Santa
Barbara Independent published a favorable review of the
novel, “giving readers five reasons to read the book.”

According to petitioner’s counsel, “[w]hen [he] took over
[petitioner’s] case from prior counsel, Ms. Dudley’s first
unsolicited remarks to me were . . . that no other
prosecutor at the DA’s office would take a case like
[petitioner’s], but that she could win it.” Counsel
indicated that Dudley’s remarks were similar to the
following excerpt from the novel: “Jordon [Danner] was
positive another D.A. wouldn’t want this case, and, she
knew the victim would feel betrayed if she handed it off.”

Petitioner’s counsel further declared, “From the first
time [he] talked to Ms. Dudley about this case, she said it
would not settle. She refused to enter into any settlement
negotiations and has summarily informed the court that the
case will go to trial.”

In opposition to the recusal motion, Dudley declared:
“This fictional book is not directly or indirectly based on
the facts of the instant case. The fictional book does not
describe any events or details of the case against
[petitioner]. The fact that I have written and published
this fictional book has not affected or impacted any of my
decisions in this case.” “At no time has my writing of this
fictional book or its publication and release date in any
way influenced my discretionary decision-making, nor did it
in any way affect the course of the investigation or
prosecution. At no time have I, or anyone else to my
knowledge, coordinated or scheduled any trial and pretrial
date in the case so Page 852 as to publicize or promote
this fictional book; on the contrary, the current trial
date resulted from a request by [petitioner] to continue
the trial.”

Dudley denied stating to petitioner’s counsel “`that no
other prosecutor at the DA’s office would take a case like
[petitioner’s], but that [she] could win it.'” She also
denied that she had refused to enter into settlement
negotiations: “As the court is aware, I participated in a
settlement discussion and, during this discussion, defense
counsel affirmed that the only acceptable disposition would
consist of a misdemeanor offense not requiring the
defendant to register as a convicted sex offender.”

At the hearing on the recusal motion, the trial court ruled
as follows: “[I]t doesn’t appear to me as though there is a
conflict that would justify recusal of Ms. Dudley. The
publication of her book appears to be coincidental to
[petitioner’s] circumstances. The circumstances related in
her book factually don’t appear to relate to [petitioner’s]
circumstances. . . . [¶] If there were any potential
conflict, there could not be recusal unless that conflict
was so grave as to render it unlikely that the defendant
would receive a fair trial, and I don’t think there’s any
evidence of that. It has not been demonstrated or
established that any publicity related to Ms. Dudley’s book
has been so extensive or interlinked with [petitioner’s]
case that he would be unlikely to receive a fair trial.”
“It’s noted that [petitioner] may have a physical
resemblance to a character in the book [Arty Lang], who
happens not to have been the perpetrator of the crime in
the book, and that certainly, in my view, doesn’t implicate
any prejudice to [petitioner’s] right to a fair
trial.”[fn3]

Standards for Recusal under Section 1424

(1) Section 1424, enacted in 1980, “established both
procedural and substantive requirements for a motion to
disqualify the district attorney. Substantively, the
statute provides the following standard: `The motion shall
not be granted unless it is shown by the evidence that a
conflict of interest exists such as would render it
unlikely that the defendant would receive a fair trial.'”
(People v. Eubanks (1996) 14 Cal.4th 580, 591 [59
Cal.Rptr.2d 200, 927 P.2d 310]; see also People v. Vasquez
(2006) 39 Cal.4th 47 [45 Cal.Rptr.3d Page 853 372, 137
P.3d 199].) “[A] `conflict,’ for purposes of section 1424,
`exists whenever the circumstances of a case evidence a
reasonable possibility that the DA’s office may not exercise
its discretionary function in an evenhanded manner. Thus,
there is no need to determine whether a conflict is
“actual” or only gives an “appearance” of conflict.’
[Citation.] But however the conflict is characterized, it
warrants recusal only if `so grave as to render it unlikely
that defendant will receive fair treatment during all
portions of the criminal proceedings.’ [Citation.]” (People
v. Eubanks, supra, 14 Cal.4th at p. 592.)

(2) “[T]he potential for prejudice to the defendant
— the likelihood that the defendant will not receive
a fair trial — must be real, not merely apparent,
and must rise to the level of a likelihood of unfairness.
Thus section 1424 . . . does not allow disqualification
merely because the district attorney’s further
participation in the prosecution would be unseemly, would
appear improper, or would tend to reduce public confidence
in the impartiality . . . of the criminal justice system.
[Citations.]” (People v. Eubanks, supra, 14 Cal.4th at p.
592.) Even an “appearance of . . . impropriety” that “would
be highly destructive of public trust,” standing alone, is
not “a ground for recusal of the district attorney” under
section 1424. (Id., at p. 593.)

(3) Accordingly, section 1424 should be read “as
establishing a two-part test: (i) is there a conflict of
interest?; and (ii) is the conflict so severe as to
disqualify the district attorney from acting? Thus, while a
`conflict’ exists whenever there is a `reasonable
possibility that the DA’s office may not exercise its
discretionary function in an evenhanded manner,’ the
conflict is disabling only if it is `so grave as to render
it unlikely that defendant will receive fair treatment.’
[Citation.]” (People v. Eubanks, supra, 14 Cal.4th at p.
594, fn. omitted.)

Standard of Review and Cases of First Impression

“`Our role is to determine whether there is substantial
evidence to support the [trial court’s factual] findings . .
., and, based on those findings, whether the trial court
abused its discretion in denying the motion. . . .'”
(People v. Eubanks, supra, 14 Cal.4th at p. 594.) “The
appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason.” (Shamblin v.
Brattain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr. 902, 749
P.2d 339]; see also People v. Vasquez, supra, 39 Cal.4th
47.)

We cannot affirm the trial court’s ruling on the
deferential standard of appellate review. This is a first
impression case and the trial court had no precedent to
guide it. The case is “unusual” and the trial court’s
ruling cannot realistically be viewed as a routine exercise
of discretion. (See In re Marriage of Williams (2001) 88
Cal.App.4th, 808, 813 [105 Cal.Rptr.2d 923].) This Page
854 court has an independent interest in policing conflicts
of interest and safeguarding the constitutional rights of
the accused. (See Morrow v. Superior Court (1994) 30
Cal.App.4th 1252 [36 Cal.Rptr.2d 210].) In the event of
conviction, this court will hear the appeal. One of our
goals is to timely remove problematic appellate issues, not
perpetuate them so that they may be considered on direct
review and on collateral attack. We are unable to explain
why the Office of the District Attorney of Santa Barbara
is, apparently, of a different view. As we shall explain,
here, as a matter of law, the trial court was required to
recuse Dudley as the trial prosecutor.

Dudley’s Further Prosecution of Petitioner Would Be
Unseemly

As our Supreme Court has made clear in Eubanks, Dudley
cannot be recused merely because her further participation
in the prosecution of petitioner would be unseemly. She can
be recused only if she suffers from a disabling conflict of
interest. Nevertheless, in view of “the sound teaching that
`justice must satisfy the appearance of justice,'” before
discussing the conflict issue we explain why Dudley’s
further prosecution of petitioner would be unseemly.
(Standefer v. United States (1980) 447 U.S. 10, 25 [64
L.Ed.2d 689, 100 S.Ct. 1999].) Although her novel and
petitioner’s case have differences in their facts, enough
similarities exist to suggest that Dudley is relying on
petitioner’s case for plot lines.

Dudley is using her official position to obtain personal
financial gain. Her connection with the Santa Barbara
County District Attorney’s Office is a major selling point
for the book. The front cover shows a file with the
heading, “Santa Barbara County District Attorney File.” The
back cover states, “Joyce Dudley is a Senior Deputy
District Attorney for Santa Barbara County. She specializes
in: sexual assault crimes, crimes against children, murder,
and hate crimes.” In the acknowledgements section, Dudley
writes, “Weekdays I am surrounded by caring, smart people
in the Santa Barbara County District Attorney’s Office and
in our courts — for this I am deeply appreciative.”
On the first page of the novel, Jordon Danner is identified
as a “Santa Barbara County District Attorney.” No current
public employee should be permitted to exploit his or her
official position as a lever to earn extra private income.
Albeit in a different context, the United States Supreme
Court has said that “injecting a personal interest,
financial or otherwise, into the [law] enforcement process
may bring irrelevant or impermissible factors into the
prosecutorial decision and in some contexts raise serious
constitutional questions.” (Marshall v. Jerrico (1980) 446
U.S. 238, 249-250 [64 L.Ed.2d 182, 193, 100 S.Ct. 1610].)

Dudley presents a biased, black-and-white view of the
participants in the criminal justice system. She portrays
prosecutors as fearless champions of Page 855 truth and
justice. On the other hand, she characterizes the defendant
in the novel as “despicable,” “felony ugly,” a “pig,” a
“heartless bastard,” and a “dirt bag.” Defense counsel is
portrayed as “disingenuous and manipulative” and as
deserving to have his “ass” kicked. These stereotypical
generalizations have no place in a current public
prosecutor’s thinking processes even if they are uttered in
a fictional account. A reader of the novel is bound to
consider the source of the comments, and the source here is
a public prosecutor presently employed by the Santa Barbara
County District Attorney’s Office. Perhaps without
intending to do so, Dudley is potentially infecting the jury
pool with her views on the righteousness of cases
prosecuted by that office.

Consideration should also be given to the views of
petitioner, as expressed by his counsel. The California
Supreme Court has indicated that a public prosecutor is “a
guardian of the defendant’s constitutional rights.” (People
v. Trevino (1985) 39 Cal.3d 667, 681 [217 Cal.Rptr. 652,
704 P.2d 719], disapproved on another ground in People v.
Johnson (1989) 47 Cal.3d 1194, 1219-1221 [255 Cal.Rptr.
569, 767 P.2d 1047]; compare People v. Vasquez, supra, 39
Cal.4th 47.) It is understandable that petitioner would
question whether his constitutional rights will be
protected by a prosecutor who writes a fictional account
about a case similar to his own in which the defendant is
depicted as a vile brute.

Dudley Suffers from a Disabling Conflict of Interest

(4) We conclude that a conflict exists because there is a
reasonable possibility that Dudley may not exercise her
discretionary functions in an evenhanded manner. There is a
reasonable possibility that Dudley’s desire to see her book
succeed is so strong that it will trump her duty as a
prosecutor “to see that justice is done and to accord to
defendants their constitutional rights. [Citations.]”
(Reaves v. Superior Court (1971) 22 Cal.App.3d 587, 596 [99
Cal.Rptr. 156].) The success of Dudley’s book would result
in both financial and emotional rewards. She has been
making an effort to promote book sales, and the best means
of promotion would be favorable media publicity.

Dudley will garner no laurels, and this case will not
generate favorable media publicity for her book, if she
enters into a negotiated settlement with petitioner. If, on
the other hand, she tries the case before a jury and
obtains a conviction, her victory may be acclaimed in the
media. Dudley could expect such acclamation to generate
favorable publicity for her book, especially since the
defendant in the book is charged with the same crime as
petitioner. Thus, Dudley’s desire to promote her book could
motivate her to try the case even though the matter might
be fairly resolved through a negotiated plea to a lesser
charge. Page 856

There is another reason why a conflict exists. Although
Danner is a fictional character, it is reasonable to infer
that Dudley is using Danner as a mouthpiece for her own
views. Dudley closely identifies herself with Danner.
Dudley has stated that Danner “is a pumped-up version of
herself” and is “`Joyce [Dudley] on steroids.'” Danner’s
initials — J.D. — are also Dudley’s initials.
In Danner’s world, defendants charged with sex crimes are
villains and their counsel are manipulators, while
prosecutors are crusaders for justice and victims are pure,
courageous, and unselfish.

In the acknowledgments section of the book, Dudley
indicates that she shares Danner’s perspective of the
criminal justice system. Dudley writes: “I don’t believe
any one [sic] can write a trustworthy novel without the
help and support of friends and colleagues who are willing
to read and criticize their work.” (Italics added.) The
implication is that her novel is trustworthy: that it
accurately depicts the workings of the criminal justice
system. Furthermore, Dudley portrays herself as an advocate
for heroic crime victims: “Several times a week, crime
victims walk into my office and describe the worst moment
of their life, seeking only justice in return. I am in awe
of these victims/survivors and feel privileged to be a part
of their healing process. My characters were created to
honor their bravery. I hope in writing this novel I can
give their pain and courage a voice.” Thus, there is a
reasonable possibility that Dudley’s perspective of the
criminal justice system, like Danner’s, is so one-sided in
favor of the prosecution and victims that she may not
exercise her discretionary functions in an evenhanded
manner.

Is the conflict disabling? In other words, is the conflict
“`so grave as to render it unlikely that [petitioner] will
receive fair treatment during all portions of the criminal
proceedings[?]’ [Citation.]” (People v. Eubanks, supra, 14
Cal.4th at p. 592.) We conclude that, given the unusual
facts of this case, the conflict is disabling and that the
trial court abused its discretion as a matter of law in
finding to the contrary.

In addition to the factors discussed above, we also
consider the following statement by Dudley in the novel:
“[I]t was well known throughout the legal community that a
negative outcome on these kinds of cases had a trickle-down
effect, resulting in other potential assailants believing
if they preyed upon an intoxicated victim, they could get
away with rape.” This statement indicates that Dudley would
be loath to enter into a negotiated settlement if she
believed that she could prove the rape charge. To avoid the
deleterious “trickle-down effect,” Dudley might insist on a
plea to the rape charge, whereas another unconflicted
prosecutor might allow a plea to a lesser charge as a fair
disposition of the case. Or, as a condition of a plea,
Dudley might insist on a harsher sentence than another
unconflicted prosecutor. Page 857

Conclusion

Our decision does not result in a wholesale recusal of
Dudley in criminal cases or sexual assault cases. We
conclude only that she has a disabling conflict of interest
in the instant case, where petitioner is being prosecuted
for raping an intoxicated person while the prosecutor is
promoting her novel involving the identical charge.[fn4]

To the extent that petitioner seeks to recuse Joyce Dudley
as the trial prosecutor in this case, the petition for a
writ of mandate is granted. The petition is denied to the
extent that petitioner seeks to recuse the Santa Barbara
County District Attorney’s Office. The order to show cause,
having served its purpose, is discharged. The stay of
proceedings previously issued by this court is vacated.

Gilbert, P.J., and Perren, J., concurred.

[fn1] We deny the request to recuse the entire office of
the Santa Barbara District Attorney. Other than
speculation, there is no evidence of the likelihood of
unfairness if another prosecutor in the office of the Santa
Barbara District Attorney takes over this case. (People v.
Hamilton (1988) 46 Cal.3d 123, 139 [249 Cal.Rptr. 320, 756
P.2d 1348] [“[t]he showing must be especially persuasive
when the defendant seeks to recuse an entire prosecutorial
office and not simply a particular prosecutor.
[Citations.]”].)

[fn2] All statutory references are to the Penal Code.

[fn3] The petition for a writ of mandate was not accompanied
by a copy of the reporter’s transcript of the hearing on
the recusal motion. In his return to the order to show
cause, the Attorney General argues that the petition should
be dismissed because of this omission. The Attorney General
observes that the California Rules of Court required
petitioner to provide a reporter’s transcript of the oral
proceedings. (Cal. Rules of Court, rule 56(c)(1)(D).) After
we issued the order to show cause, petitioner provided a
copy of the required reporter’s transcript to this court,
the Attorney General, and the District Attorney of Santa
Barbara County. We deny the Attorney General’s request to
dismiss the petition “for failure to provide the Court with
an adequate record.”

[fn4] Our opinion should not be construed as an attack on
the character of this prosecutor. We view Dudley’s conduct
as a single lapse of judgment. Page 858