California Courts of Appeal Reports
HOLLYWOOD v. SUPERIOR COURT, 143 Cal.App.4th 858 (2006) 49 Cal.Rptr.3d 598 JESSE JAMES HOLLYWOOD, Petitioner, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. No. B188550 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.
1014465, Brian Hill, Judge. Page 859
Law Offices of James E. Blatt, James E. Blatt, Michael G.
Raab and Armand Arabian 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. Page 860
OPINION
YEGAN, J.
This is a companion case to Haraguchi v. Superior Court
(2006) 143 Cal.App.4th 846 (Haraguchi). In this death
penalty case, Jesse James Hollywood, petitioner, seeks a
writ of mandate directing the respondent trial court to
grant his motion to recuse the Office of the District
Attorney of Santa Barbara County. In the alternative,
petitioner seeks a writ of mandate directing the trial court
to conduct a full evidentiary hearing on the recusal motion.
Petitioner contends that, because of the role of the
assigned prosecutor, Ronald J. Zonen (Zonen), in the making
of a film about the case, “that prosecutor has demonstrated
a bias and conflict of interest warranting recusal.” “Based
on the lack of evidence that [the District Attorney] was
unaware of the prosecutor’s disqualifying conduct,”
petitioner also contends that the entire prosecutorial
office should be recused.
We originally summarily denied the petition. The Supreme
Court granted review and directed us to issue an order to
show cause. We now conclude that the trial court erred by
denying the recusal motion as to Zonen, but correctly denied
recusal as to the entire Santa Barbara District Attorney’s
Office.[fn1]
Factual and Procedural Background
On October 30, 2000, the District Attorney of Santa Barbara
County (hereafter District Attorney) filed a two-count
indictment against petitioner and four codefendants: Ryan
Hoyt, William Skidmore, Jesse Rugge, and Graham Pressley.
Count 1 charged them with the murder of Nicholas Markowitz.
(Pen. Code, § 187, subd. (a).)[fn2] It alleged as a
special circumstance that the defendants had committed the
murder during the commission of a kidnapping in violation of
section 207. (§ 190.2, subd. (a)(17)(B).) Count 2
charged the defendants with kidnapping Markowitz for the
purpose of ransom or to commit extortion in violation of
section 209, subdivision (a).
In their return to the order to show cause, the People
summarize the facts underlying the crimes as follows:
“In brief, evidence before the grand jury revealed that
Petitioner . . . was a drug dealer in the San Fernando
Valley area of Los Angeles and Ben Markowitz (`Ben,’ the
older half-brother of 15-year-old Nicholas `Nick’
Markowitz) was one of [petitioner’s] distributers [sic] for
several years. Ben and [petitioner] had a falling-out over a
debt Ben owed [petitioner] from the sale of a quantity of
`ecstacy’ [sic] supplied by [petitioner], and the enmity
between them escalated. Page 861
“On Sunday, August 6, 2000, [petitioner], Jesse Rugge . . .
and William Skidmore . . . were driving in a van to the home
of Ben Markowitz’s parents in the San Fernando Valley,
intending to break out the windows of that residence in
retaliation for Ben’s act of breaking the windows of
[petitioner’s] residence. On the way they spotted Nick
Markowitz standing on a street corner near his home. They
stopped and forced the boy into the van. They then
proceeded, with Nick in their custody, to the home of a
friend to pick him up for a pre-arranged trip to Santa
Barbara, to attend the annual `Fiesta’ celebration in that
city and to `party’ there.
“On the way to Santa Barbara, [petitioner] made threats to
Nick Markowitz, such as, `If your brother thinks he’s going
to kill my family, he has another think coming. Your brother
is going to pay me money right now,’ and `If you run, I’ll
break your teeth.’
“Nick Markowitz was detained in the Santa Barbara home of
Richard Hoeflinger, another friend of [petitioner’s].
Initially, Nick was bound hand and foot with duct tape and
was blindfolded. He later was freed of those restraints but
remained with Rugge and Pressley, either out of fear or in
the belief he was not in personal danger as long as he did
as he was told.
“On Tuesday, August 8, 2000, Rugge, with Nick in tow,
rented a room at a motel in Santa Barbara. In Los Angeles,
[petitioner] gave Hoyt a Tec-9 automatic machine pistol and
sent him back to Santa Barbara with instructions to kill
Nick Markowitz. Hoyt and Pressley first drove up Highway 154
to a trailhead called `Lizard’s Mouth’ atop the mountains
separating Santa Barbara and the Santa Ynez Valley and dug a
shallow grave. Late that evening, Rugge, Pressley, Hoyt and
Skidmore drove young Markowitz to the trailhead and marched
him to the gravesite. He was bound with duct tape and
blindfolded. Hoyt hit him over the head with a shovel and
then shot him with a nine round burst from the Tec-9. Hoyt
and Rugge buried him and the four defendants returned to
Santa Barbara.”
On August 12, 2000, Markowitz’s body was discovered by law
enforcement officials. Within 48 hours after the discovery,
petitioner’s four codefendants (Hoyt, Skidmore, Rugge, and
Pressley) were in custody. Petitioner, on the other hand,
became a fugitive. He was arrested in Brazil in March 2005
and deported to the United States.
Petitioner’s codefendants were prosecuted by Zonen. In
March 2003, after Zonen had obtained convictions against all
four codefendants, he was contacted by Nick Cassavetes.
Cassavetes was a film director and screenwriter who wanted
to make a film, Alpha Dog (Universal Pictures 2007), based
on the Markowitz murder. Cassavetes asked Zonen “if he could
provide any Page 862 assistance or materials to help
create a screenplay, including trial transcripts, witness
contacts, etc.” According to Zonen, he “agreed to turn over
materials . . . to Nick Cassavetes and act as a consultant
in Mr. Cassavetes’ preparation” of Alpha Dog.
Declarations in the Recusal Moving Papers
Zonen stated that “the Court should assume that all
relevant material in the case against [petitioner] was
turned over to the film makers [sic], including all reports,
tapes and photos.” Zonen further stated that all of those
materials “are already in [petitioner’s] possession, or will
soon be. . . .” The disclosed materials included both police
and probation reports. The police reports contained the
names, phone numbers, and addresses of witnesses. Zonen may
have unintentionally disclosed “rap sheets” containing
criminal offender record information. Zonen declared that he
gave boxes of materials to the filmmakers and “would not
have turned over rap sheets if [he] had known they were in
the boxes.”
Zonen never asked for and was not given any monetary
consideration for his assistance. Zonen declared that he
decided to cooperate with Cassavetes because he believed
Alpha Dog would be “the last opportunity to get the kind of
widespread publicity necessary to locate [petitioner] and
bring him to justice.” Zonen stated: “I asked only that
[petitioner’s] picture be shown at the conclusion of the
film along with a phone number to call with information as
to his whereabouts. I asked that the audience be told that
[petitioner] remains a fugitive and that there is a reward
for his arrest.” Zonen also asked “that the film be
accurate.”
Zonen declared that he had been informed that the film
“would be a realistic recounting of the crime, with real
names and accurate facts, to be shown nationally and
internationally.” He believed that “[t]he national and
international forums were important, given that it was
likely that [petitioner] had fled the country and was beyond
the reach of conventional American television.” However,
after Zonen had given the case materials to Cassavetes, he
was informed that “the names and locations would be changed
because of liability concerns and difficulty in obtaining
insurance.” Petitioner’s name in the movie is “Johnny
Truelove.” At the end of the movie, a caption states that
Truelove “was finally arrested in `Paraguay’ after five
years as a fugitive and is waiting trial in `California.'”
Cassavetes declared: “The `Alpha Dog’ movie could have been
made without Mr. Zonen’s cooperation, but it would have been
made worse. Either I would have had to go around him and do
a lot more diligent work or I would have had to make it up.
This particular version could not have been Page 863
made.” Zonen took Cassavetes and his assistants to the
location where the murder of Markowitz had occurred. Zonen
helped Cassavetes contact witnesses. Cassavetes asked Zonen
for “his opinions on certain participants in the case.”
Cassavetes “specifically recall[ed] Mr. Zonen describing .
. . Ryan Hoyt’s family life and Ryan Hoyt’s mother.” Zonen
“told [Cassavetes] overall he felt that these were a bunch
of stoned, dumb guys.” Cassavetes “[a]t times . . . used Mr.
Zonen’s assistance . . . for his opinions of character
specifics.”
According to Cassavetes, Zonen “was cooperative” and never
“said `no’ to any request [he] made.” Cassavetes
characterized Zonen’s “attitude towards [him] and the
creation of the movie as enthusiastic.”[fn3] Heather
Wahlquist, who assisted in the creation of Alpha Dog,
declared that Zonen appeared “to be `star-struck’ and eager
to assist the film-makers.”
Cassavetes also declared that, during his first meeting
with Zonen, Zonen “said he was very interested in finding
[petitioner]. He asked whether [Cassavetes] intended to
identify [petitioner] at the end of the film and if
[Cassavetes] intended to show his photograph. Mr. Zonen
never requested that [Cassavetes] do so.” Cassavetes “told
[Zonen he] was just the writer, that no film was yet made,
and that there were no plans whatsoever. [Cassavetes] also
informed him that [Cassevetes] was not interested in making
a 90[]minute version of `America’s Most Wanted.'”[fn4]
The Motion to Recuse
On September 9, 2005, petitioner filed a motion to recuse
the entire District Attorney’s Office. In support of the
motion, petitioner’s counsel declared that, on August 23,
2005, he had attended “the first and only public screening
to date” of Alpha Dog. Counsel alleged that the film
portrays petitioner “in an extremely inflammatory manner,
[as] extremely manipulative, vicious, selfish, and without
any redeeming character traits whatsoever. The Jesse James
Hollywood Character was described by several of the public
movie viewers as a `monster.'” At the conclusion of the
film, special thanks are given to the Santa Barbara
Sheriff’s Department and to Ron Zonen.
Petitioner’s counsel also declared that Michael Mehas, a
researcher and associate producer for Alpha Dog, had refused
to speak with him because of Page 864 Zonen’s
interference. According to counsel, Mehas was the
“film-maker who had the greatest amount of contact with . .
. Zonen.” Counsel stated that Mehas had initially provided
information about his contacts with Zonen. Mehas “described
his access, with permission, to the Santa Barbara District
Attorney’s Office file room where all the case materials
were located. [Mehas] stated he was provided access to
computer disks, photographs, audio recordings, video
recordings, still photographs, law enforcement evaluations,
probation reports, and criminal history reports, among other
items of evidence. [Mehas] stated these items of evidence
were stored in boxes, which he was permitted to remove
without supervision from the Santa Barbara District
Attorney’s Office[.]” The materials received by Mehas
included “a psychological report regarding co-defendant
Hoyt.” In addition, Zonen gave Mehas “Zonen’s trial notebook
for the prior trial of the co-defendants charged herein.
This notebook includes witness statements, prosecutorial
impressions, and Mr. Zonen’s handwritten notes.”
Petitioner’s counsel declared that Mehas’s cooperation with
the defense ceased after Zonen telephoned him and “expressed
anger that Mr. Mehas had spoken to counsel.” Zonen “also
expressed concern that he would be criminally prosecuted for
his conduct, and that the information Mr. Mehas provided
could assist in that prosecution.”
Petitioner contended “that the prosecutor’s unprecedented
misconduct in acting as a `consultant’ to film-makers and
providing them with unfettered access to his files and
evidence qualifies as conduct warranting disqualification.”
Petitioner argued that “the prosecution’s misconduct can
only be described as representing a bias against
[petitioner].” “The pre-trial publicity in which the
prosecution engaged cannot be credibly characterized as the
dissemination of `information necessary to aid in the
apprehension’ of a fugitive . . .; it serves solely to
create an inflammatory and prejudicial depiction of
[petitioner] and to aggrandize the prosecution.” Petitioner
requested that the trial court conduct an evidentiary
hearing “regarding the full nature and extent of the
prosecution’s `consultation’ as well as the specific details
regarding improper dissemination of `relevant materials.'”
Hearing on the Motion to Recuse
On November 1, 2005, the trial court conducted a hearing on
the recusal motion. Petitioner conceded that there was not
“any impropriety in reference to finances.” The trial court
accepted Zonen’s explanation for assisting the filmmakers:
“There is no declaration from any person, in my view, that
undermines, or raises any question about Mr. Zonen’s
assertion and declaration that his sole interest in
providing information to the filmmakers was to promote the
interests of law enforcement in apprehending [petitioner].
That Page 865 interest is obviously a lawful and
justifiable interest and creates no legal conflict of
interest.” The court further stated: “There’s a suggestion
that . . . Mr. Zonen might have been star struck by his
association with the filmmakers, or that he took some
psychic pleasure in assisting in the production of a movie.
Even assuming that that’s true, . . . I don’t see that
that’s a legally cognizable conflict.” “Finally, even
assuming one were to take the view that there was a
conflict, I can conceive of no likelihood that it would
prevent the [petitioner] from receiving a fair trial.”
The trial court stated that it had viewed a digital video
disc made by the filmmakers. The disc shows the filmmakers
conversing among themselves immediately after their first
meeting with Zonen. One of the filmmakers stated, “[Zonen]
wants you to make this movie and he wants you to make this
movie as accurate as you can so he can portray [petitioner]
for what he is so that he can catch that bastard.” The trial
court said that the filmmaker’s statement “corroborates what
Mr. Zonen has been saying in his declarations, which is not
really controverted by anything in the defense’s
declarations.” On the disc the filmmaker also said that
Zonen had stated: “I’m retiring in seven years. I’ve got to
get this guy before I go.”
At the end of the disc, a filmmaker (apparently Cassevetes)
said that Zonen had stated that “anything that we needed he
would give us but we have . . . to come to the Markowitz
woman [Susan Markowitz, the victim’s mother] first . . . and
if anything came out I have to say that the Markowitz woman
told me.” The trial court asked Zonen to explain the
filmmaker’s comment. Zonen said, “I don’t remember a
conversation where we talked about crediting information to
Susan Markowitz.” However, “if there’s information that
would have come from both of us I could very well have said,
`Credit it to Susan Markowitz.’ I prefer not to be quoted. .
. . [¶] . . . I would not have told them to quote her
something she knew nothing about, that would have been
foolish.”
The court decided to conduct an evidentiary hearing, but it
limited the scope of that hearing to the issue of whether
Zonen had improperly influenced Mehas’s decision to stop
talking to the defense. The court declared: “Only one movie
person has been identified . . . as now being unwilling to
talk to the defense, and the timing of that is such that it
raises a concern in the Court’s mind.” “And so it seems to
me that a limited evidentiary hearing with Mr. Mehas as a
witness is relevant to the question of whether or not
there’s been some improper coercion which might in turn
reflect a bias that would be legally significant.”
Mehas testified at the evidentiary hearing. His testimony
was as follows: He was involved in two projects. The first
project was to assist Cassavetes in Page 866 writing the
screenplay for Alpha Dog. The second was to write a book on
the Markowitz murder. Zonen told Mehas that he planned to
write a book as well. Later, however, Zonen said that “he
couldn’t do a book, that it would be improper with . . .
[petitioner’s] case still outstanding. . . .”
Mehas met with Zonen approximately 10 to 12 times over a
two-year period. Mehas would come into Zonen’s office and
“pepper him with questions.” “[Mehas] would give him
[Mehas’s] theories of what happened, [Zonen] would give
[Mehas] his theories, [and Mehas would] tell [Zonen] why
[he] thought [Zonen’s theories were] wrong.” Mehas
considered Zonen to be a “friend.”
There was an understanding between Zonen and Mehas that
Mehas would disclose the case materials only to persons
working with him on the film. It was also understood that
Mehas “wouldn’t talk about any of the stuff [he] got from
[Zonen].” He would not “even tell people that [Zonen] had
turned those documents over to [him]. . . .”
After petitioner was apprehended, Mehas had two telephone
conversations with Zonen. During the second conversation,
Zonen asked if he had given rap sheets to Mehas. Mehas
believes he told Zonen that he had rap sheets, but “when
[he] went through everything [he] didn’t have the rap
sheets.” Zonen “said that he was concerned that [he] would
be criminally prosecuted because of allegedly giving [Mehas]
documents that he shouldn’t have.” Zonen never told Mehas
not to cooperate with petitioner’s counsel or anyone
associated with petitioner. Nor did he tell Mehas “not to
reveal to anyone any of [Mehas’s] prior conversations with
[Zonen].”
Petitioner’s counsel asked Mehas for a declaration “as to
what transpired between [him] and Mr. Zonen.” Mehas refused
to give a declaration for two reasons. First, Mehas was
concerned that he would be “breaching a moral and ethical
confidentiality that [he] had personally with [Zonen].”
Mehas stated: “I never wanted to give [counsel] a
declaration and never wanted to testify because of my
personal, ethical and moral considerations in dealing with a
professional attorney on this matter. . . . I was concerned
about the information I was getting, and I told [Zonen] that
I was going to keep it under my hat.”
The second reason for Mehas’s refusal to give a declaration
was that, after his telephone conversations with Zonen, he
was concerned that Zonen “was going to be facing criminal
prosecution for this matter.” Zonen’s potential criminal
liability was the “foremost factor” in Mehas’s decision not
to give a declaration. It “nailed [his] mouth shut.” Mehas
was concerned that “if [he] cooperated further with the
defense in reference to a declaration that it might harm Mr.
Zonen.” He was also “concerned about [himself] . . . at
that point.” Page 867
Mehas interviewed approximately eight witnesses and made
notes and tapes of the interviews. Both before and after
the interviews, Mehas discussed the witnesses with Zonen.
Mehas told Zonen that he would keep these discussions
confidential. Mehas did not disclose to Zonen the
information he had obtained during the witness interviews:
“I wouldn’t tell [Zonen] I had a conversation with a
witness and then relay that information to him. I didn’t
give him that information.”
Mehas refused to turn over to the defense his notes and
tapes of witness interviews “[b]ecause that is my work
product and is going into my book and that’s the only place
it’s going to come out at.” The trial court directed Mehas
to turn over to the court his notes and tapes of witness
interviews. It assured Mehas that the notes and tapes “will
be held by the Court, not disclosed to any third person
until we have a hearing on this issue and until you’re
represented by counsel.” The court directed Mehas to
preserve, but not to turn over to the court, the materials
that Zonen had provided to him.
At the conclusion of Mehas’s testimony, the trial court
factually found that there was an understanding between
Zonen and Mehas that Mehas was not to disseminate the
materials received from Zonen to third persons. It also
found that there was an understanding that Mehas was not to
“talk about getting the materials from Mr. Zonen.” The
court determined that this understanding of confidentiality
did not rise to the level of a conflict of interest.
Petitioner argued that Zonen had attempted to dissuade
Mehas from cooperating with the defense. The trial court
rejected this argument: “[Mehas] could not have been more
clear on the witness stand, he testified that he made that
decision not to cooperate not because of anything Mr. Zonen
said to him, . . . [but because] he felt bad about Mr.
Zonen’s predicament because they had a relationship going
back, I guess a few years, and because of that relationship
he decided that he would not put Mr. Zonen in any sort of
awkward circumstance. That he felt personally responsible.
But that at no time did Mr. Zonen ever tell him not to
cooperate with the defense, that was a decision that he made
on his own.”
The trial court also rejected petitioner’s contention that
the evidence established that Zonen had violated the law:
“[T]o be fair, we don’t know if there are violations of law
or not, . . . that’s entirely speculative. . . . [I]t’s a
little bit reckless to be claiming that there are violations
of law when there’s been no forum in which that
determination has been made.” Even if Zonen had violated the
law in providing information to the filmmakers, the trial
court perceived no reason “why the turning over of that
information, one, is a conflict, and, two, prevents
[petitioner] from having a fair trial.” Page 868
The trial court reiterated its prior finding concerning
Zonen’s purpose in cooperating with the filmmakers: “I don’t
think there’s . . . a factual issue regarding the reasons
Mr. Zonen turned over the information. . . . [T]he purpose
was to assist in the capture of [petitioner]. No one has
suggested otherwise in terms of his motivation. There’s no
financial interest here.”
In denying the recusal motion, the trial court stated: “I
don’t believe that there’s a conflict of interest. Any
conflict of interest is remote and tenuous. I don’t see any
basis for the conclusion that [petitioner] cannot receive a
fair trial in this case with Mr. Zonen as the prosecutor.”
Why We Order Recusal of Zonen
There is no need to again set forth the standards for
recusal under section 1424, the standard of review, and why
we cannot affirm the trial court’s ruling on the deferential
standard of review. We did so in the companion case of
Haraguchi filed this day. (See Haraguchi, supra, 143
Cal.App.4th at pp. 853-854.) Our views there apply here as
well. Here, however, there is one over-arching
consideration: The penalty sought.
(1) This is a death penalty case. As our United States and
California Supreme Courts have said, “`[d]eath is
different.'” (Ring v. Arizona (2002) 536 U.S. 584, 606 [153
L.Ed.2d 556, 122 S.Ct. 2428]; see Keenan v. Superior Court
(1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d
108].) “[I]n striking a balance between the interests of the
state and those of the defendant, it is generally necessary
to protect more carefully the rights of a defendant who is
charged with a capital crime. (Citations.)” (Id., at p.
431.) We thus give rulings in death penalty cases strict
scrutiny. Where a prosecutor seeks the ultimate penalty, the
prosecutor should be held to the highest standards of the
legal profession. In People v. Superior Court (Greer) (1977)
19 Cal.3d 255 [137 Cal.Rptr. 476, 561 P.2d 1164], our
Supreme Court observed that a prosecutor is held to the
“highest degree of integrity and impartiality” (id. at p.
267), and the prosecutor must be free of “personal or
emotional involvement” (id., at p. 267, fn. 8). Here, the
conduct of Zonen, however well motivated, cannot reasonably
be equated with the “highest degree of integrity and
impartiality.”
(2) In this first impression death penalty case we should
not give our imprimatur to Zonen’s conduct or embolden
other prosecutors to assist the media in the public
vilification of a defendant in a case which is yet to be
tried. Perhaps without intending to do so, Zonen has
potentially infected the jury pool with his views on the
strength of the People’s case. Prosecutors should try their
cases in courtrooms, not in the newspapers, television, or
in the movies. As far as we know, no prosecutor has ever
been a consultant Page 869 (even without pay) to a film
director on a pending criminal case that he or she is
prosecuting. To say that Zonen went too far in his attempt
to apprehend petitioner is an understatement. In his zeal to
apprehend petitioner so that he could be brought to
justice, Zonen virtually gave the entire file, owned by the
public, to the filmmakers. This included audiotapes,
videotapes, his trial notebook including work product,
unredacted police reports, probation reports and psychiatric
reports. Zonen also may have unintentionally provided the
filmmakers with “rap sheets.” We are aware of no authority
allowing a public prosecutor to give away, even
temporarily, public property, especially when that property
contains highly sensitive confidential information in a
pending case.
There are restrictions on what information government
employees may disseminate to third persons. (Unauthorized
release of criminal records — see §§
11105, 11140 et seq.; police reports divulging the telephone
numbers and addresses of victims or witness — see
§ 1054.2; probation reports — see §
1203.05.) Perhaps realizing that he had gone too far in
cooperating with the filmmakers, Zonen attempted to keep
such cooperation secret. The trial court found that Zonen
had an understanding with one of the filmmakers, Mehas, that
he (Mehas) was not to tell anyone that he was getting
materials from Zonen.
Zonen’s conduct may have also created some evidentiary
issues which cannot be ignored even at this juncture. For
example, by disclosing his “work product” to third parties,
he may have waived the right to confidentiality of his
impressions of the strengths and weaknesses of the case.
Unlike the situation in Haraguchi where the prosecutor was
motivated by a desire for literary fame and fortune, here
Zonen gets high marks for his zeal in attempting to bring
petitioner to justice. This is consistent with his oath as a
prosecutor. The manner in which he went about achieving his
goal, however, is quite another matter.
(3) As was the case in Haraguchi, our considered judgment
is that justice would not be served if Zonen remains as the
trial prosecutor. Phrased otherwise, in this situation,
there is a likelihood that petitioner will not receive fair
treatment if Zonen remains as the trial prosecutor. (People
v. Eubanks (1996) 14 Cal.4th 580, 592 [59 Cal.Rptr.2d 200,
927 P.2d 310]; People v. Vasquez (2006) 39 Cal.4th 47 [45
Cal.Rptr.3d 372, 137 P.3d 199].) We make one further
observation: Even a cursory reading of the appellate
reports has taught us that death penalty cases are subject
to multiple reviews by state and federal courts with various
courts often taking a “new” view of the matter. It should be
the goal of any prosecutor to try the case once with as few
appellate issues preserved for review as possible. (See
Haraguchi, supra, Page 870 143 Cal.App.4th at pp.
853-854.) An appellate ruling at this juncture leaving Zonen
in the case might well be a basis for reversal in the
future. As we indicated in People v. Winslow (1995) 40
Cal.App.4th 680, 683 [46 Cal.Rptr.2d 901], “As the moving
party in a criminal action, it is the People’s obligation .
. . [to see that the trial is conducted in a manner] so that
a lawful determination can be made and sustained on
appeal.” Leaving Zonen in the case is ill considered when
the stakes are so high. We see no real prejudice to the
People beyond bringing another prosecutor up to speed.
Why We Do Not Order Recusal of the Entire Office
As indicated earlier, petitioner seeks to have the entire
office recused “based on the lack of evidence that [the
District Attorney] was unaware of the prosecutor’s [Zonen’s]
disqualifying conduct.” This is a novel approach to the
concept of who has the burden of proof. (See Love v.
Superior Court (1980) 111 Cal.App.3d 367 [168 Cal.Rptr.
577] [burden on defendant to show recusal is necessary].)
Both in writing and at oral argument, petitioner has argued
that the elected District Attorney “had to have known” or
“must have known,” and therefore condoned Zonen’s conduct.
This is speculative. The record does not contain any
declaration from the former elected District Attorney[fn5]
and there is no showing that he refused to provide a
declaration at petitioner’s request. In some instances, writ
petitions are significant for what they omit as some counsel
believe, as a matter of tactics, that it is better to argue
from a silent record. In our view, the instant writ
petition suffers from such an omission. Even if it could be
shown that the former elected District Attorney was aware of
the cooperation and the specifics thereof, it does not
logically follow that the entire office should be recused.
To secure such an order, the showing must be “especially
persuasive.” (People v. Hamilton (1988) 46 Cal.3d 123, 139
[249 Cal.Rptr. 320, 756 P.2d 1348].) We presume that in
death penalty cases, it is the ultimate decision of the
elected District Attorney to seek such penalty. Here, this
decision was made before Zonen became a film consultant. To
be sure, it may be reconsidered by the newly elected
District Attorney of Santa Barbara County. Of course, we
express no opinion on what penalty should be sought. Here we
just do not see the “especially persuasive” showing of a
causal connection between Zonen’s conduct, the former
elected District Attorney, and the remainder of the deputies
in that office. Page 871
Conclusion
To the extent that petitioner seeks the recusal of
prosecutor Zonen, the petition is granted. In all other
respects, the petition is denied. The stay order previously
issued is vacated.
Perren, J., concurred.
[fn1] One of the reasons we originally denied the petition
was because it prayed for recusal of the entire district
attorney’s office.
[fn2] All statutory references are to the Penal Code unless
otherwise stated.
[fn3] Cassavetes also declared that he did discuss the case
with sheriff’s deputies but they “. . . did not help me
much. They tended to be more closed mouthed. They stated
they did not want to compromise any future case.” If only
Zonen had entertained a similar view.
[fn4] According to Zonen, “[t]he television program
`America’s Most Wanted’ featured [petitioner] on nine of its
shows between 2000 and 2003.” Zonen assisted “the producers
of . . . `America’s Most Wanted’ by giving them information
about the crime in the hope that the publicity would result
in [petitioner’s] apprehension.”
[fn5] At an election held on June 6, 2006, a new District
Attorney was elected to a four-year term.
GILBERT, P.J., Concurring.
I respectfully concur: I agree with my colleagues that our
views stated in Haraguchi v. Superior Court (2006) 143
Cal.App.4th 846) “apply here as well.” (Maj. opn., ante, at
p. 868.) I write separately to stress that these views
apply irrespective of whether this is a death penalty case.
What is “over-arching” here is not the “penalty sought,” but
the patent conflict that requires recusal whatever the
criminal charge. (Ibid.)
I am mindful that our Supreme Court has echoed United
States Supreme Court and federal decisions emphasizing the
necessity “to protect more carefully the rights of a
defendant who is charged with a capital crime. [Citations.]”
(Keenan v. Superior Court (1982) 31 Cal.3d 424, 430-431 [180
Cal.Rptr. 489, 640 P.2d 108], italics added.) I also
acknowledge that there may be cases in which legal
principles apply differently because of the idiosyncratic
nature of the case. (See In re Joseph G. (1983) 34 Cal.3d
429 [194 Cal.Rptr. 163, 667 P.2d 1176].) But this is not one
of them. I hope it is not naÄ?ve to suggest that a case in
which a defendant is charged with a low level misdemeanor
should receive as careful attention and scrutiny as the
defendant charged with a serious felony or one facing the
death penalty. For example, reasonable doubt is not a
flexible standard calibrated according to the nature of the
case.
However appalling the crime for which defendant was
charged, he, like anyone charged with a criminal offense, is
entitled to a fair trial with all its attendant
constitutional and statutory safeguards. This includes not
having to face a prosecutor who has a conflict making it
unlikely that the defendant will receive fair treatment
“`during all portions'” of his trial. (People v. Eubanks
(1996) 14 Cal.4th 580, 592 [59 Cal.Rptr.2d 200, 927 P.2d
310].) The mere recital of the undisputed facts in the
majority opinion leads to the ineluctable conclusion that
the conflict here is so egregious that the defendant’s right
to a fair trial is severely compromised. Moreover, the
prosecutor’s alliance with a third party to whom he divulged
his detailed work product and other documents in violation
of the law, will so taint the trial that his recusal is
mandated.
At oral argument the Attorney General stressed the
sincerity and noble purpose of the prosecutor. I do not
dispute or question the prosecutor’s Page 872 integrity,
ability or commitment. His well-intentioned motives are
beside the point. It is the consequences of his actions that
prompt our decision. His actions allowed “show business” to
cast an unseemly shadow over this case. The prosecution of
criminal cases and entertainment enterprises is best kept
separate. Page 873