Stanford Law School - Robert Crown Law Library

Filed 5/12/08 (S148207, S147954, and S149123, all filed 5/12/08, are companion cases that will be
officially reported in that sequence.)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Petitioner,
S149123
v.
Ct.App. 2/7 B193386
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Super. Ct. No. TJ15419
Respondent;
HUMBERTO S.,
Real Party in Interest.

When, if ever, does a prosecutor’s advocacy of third party interests in the
course of a criminal discovery dispute rise to the level of a conflict of interest
justifying recusal? Here, the trial court concluded that a prosecutor who advocates
a position of benefit to a third party in a discovery dispute effectively assumes
representation of that party and thus has a conflict supporting recusal.
In two companion cases issued today, we reaffirm that the standard of
review for assessing a trial court determination concerning prosecutorial recusal is
abuse of discretion. (Haraguchi v. Superior Court (May 12, 2008, S148207) __
Cal.4th ___, ___ [pp. 5-8]; Hollywood v. Superior Court (May 12, 2008, S147954)
__ Cal.4th ___, ___ [pp. 6-8].) This case demonstrates that that standard should
not be interpreted as insulating trial court recusal orders from meaningful appellate
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review. Where the trial court’s decision rests on an error of law, as it does here,
the trial court abuses its discretion. As the Court of Appeal affirmed the recusal
order, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On December 27, 2005, minor Humberto S. was charged in a wardship
petition (Welf. & Inst. Code, § 602) with violating Penal Code section 288.5,
subdivision (a) (continuous sexual abuse of a child under the age of 14). The
petition alleged he had sexually abused his eight-year-old niece, Samantha F.1
Pretrial, Humberto S.’s counsel issued separate third party subpoenas for
Samantha’s medical and psychotherapy records. (Pen. Code, § 1326; Evid. Code,
§ 1560, subd. (b).) The third party custodian of Samantha’s medical records
disclosed them directly to Humberto S.’s counsel, who opened them. The
custodian of the psychotherapy records delivered them to the trial court and, on
April 10, 2006, a referee temporarily presiding in lieu of the trial referee who had
been assigned the matter directed the court clerk to provide the records, already
opened, to defense counsel. Although Deputy District Attorney Timothy Hu
appeared for the People at the April 10 hearing, the disclosure was done ex parte,
and it appears he did not learn then of the records’ release.
On May 11, 2006, Humberto S.’s counsel provided copies of Samantha’s
medical and psychotherapy records to the People. The People, represented this
time by Deputy District Attorney Kenneth Chiu, objected to Humberto S.’s
possession of the records on the grounds that the proper subpoena procedure had

1
The molestations allegedly began around the time of Samantha’s seventh
birthday and continued until shortly after her eighth birthday, when she first
reported them to her mother. Humberto S. was approximately 14 and 15 years old
during this period.
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not been followed and that People v. Hammon (1997) 15 Cal.4th 1117 limited the
defense’s right to pretrial access to the privileged records. The court ordered
Humberto S.’s counsel to turn all records over to the court, ordered that the
records be resubpoenaed, and continued the matter to afford the court time to
review Hammon and the relevant procedural rules.
That afternoon, Humberto S.’s counsel represented in open court that she
had spoken separately with both Samantha’s mother and her father and that each
had independently consented to disclosure.2 As the People still challenged the
propriety of the disclosures, the trial court set a further hearing for May 15,
ordered the People to secure the presence of both parents at that hearing, and
asked each side to submit written points and authorities.
On May 15, 2006, the defense filed a motion in support of disclosure, and
the People filed a motion to quash the subpoenas, claiming that Humberto S. had
failed to comply with Penal Code section 1326 and Evidence Code section 1560,
that the records were privileged, that the privilege had not been waived by prior
production of the records, and that the court could not authorize disclosure absent
a Hammon hearing (People v. Hammon, supra, 15 Cal.4th 1117), which in any
event could not be held pretrial. Humberto S. objected repeatedly to the People’s
participation in the hearing, but in each instance the trial court overruled the
objection. Samantha’s mother testified she had not consented to the People’s or
Humberto S.’s access to the records. She further testified that she and Samantha’s
father had joint and equal rights to make decisions about Samantha’s treatment
and care. Samantha’s father did not appear. The trial court tentatively determined

2
Samantha’s parents never married and were separated, but they shared
custody of Samantha. Samantha’s mother was the primary caretaker. As noted,
Samantha is Humberto S.’s niece; her father is Humberto S.’s brother.
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that the original April 10 disclosure had violated Hammon, but was uncertain
whether consent by either parent would suffice to waive the privilege and permit
redisclosure, and if so whether Samantha’s father had consented. Accordingly, it
continued the matter to hear from Samantha’s father.
At a further hearing on May 18, 2006, Samantha’s father appeared and
testified that when Humberto S.’s counsel called him on May 11, he contacted
Samantha’s mother, who said she wanted to speak to the prosecutor; she later
called back and told him she had done so and “everything was okay.” On that
basis, Samantha’s father had consented to disclosing the records to defense
counsel. He further testified that under his custody understanding with
Samantha’s mother, both parents had the right to seek medical treatment for
Samantha, and he wanted the records released even over her mother’s objection.
The court tentatively ruled that Samantha’s father’s in-court consent was
sufficient to authorize disclosure of her records. Deputy District Attorney Chiu
objected, arguing that Samantha’s mother’s consent was also necessary. After
hearing further argument, the trial court disagreed, holding that under Family
Code section 3083 either parent’s consent was generally sufficient to waive the
privilege.3 However, it continued the matter for one day so the People could
determine whether a family court order existed that might specifically require joint
consent.
On May 19, 2006, the People filed a supplemental motion to quash the
subpoenas, alleging that just the previous day Samantha’s therapist had submitted
with Samantha’s re-subpoenaed records a written objection to their release on the

3
Under Family Code section 3083, a court entering a joint custody order
must specify the circumstances in which joint parental consent is required; in all
other circumstances, the consent of one parent is sufficient.
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ground the release would be harmful to Samantha’s continued treatment, and the
father’s consent could not override that assertion of the privilege. (See Health &
Saf. Code, § 123115, subd. (a)(2); In re Daniel C. H. (1990) 220 Cal.App.3d 814,
826-829 [in a dependency action, holding predecessor to Health & Saf. Code,
§ 123115 barred conflicted father from accessing minor’s psychotherapist
records].)4 At the continued hearing, Chiu reported to the court that no family
court order existed, but argued the presumptions of Family Code section 3083 —
that one parent’s consent ordinarily sufficed — should not control. The court
agreed the statute was not controlling, but adhered to its tentative ruling. Chiu
then asked the court to appoint a guardian ad litem to assert Samantha’s privilege,
in light of the parents’ divided views and the possibility one or both had a conflict.
(See Code Civ. Proc., § 373.) The court declined, treating the request as untimely.
The matter was continued to a final hearing on May 23, 2006, when the
court denied the People’s supplemental motion. After a recess, on the request of
another member of the prosecutor’s office, Lydia Boldin, the court stayed the
release of the records pending appellate review. On June 20, the Court of Appeal
denied the People’s writ petition, and thereafter the disputed records were released
to Humberto S.
Humberto S. thereafter moved to disqualify the Los Angeles County
District Attorney’s Office pursuant to Penal Code section 1424, contending that in
opposing the disclosure motions it had effectively represented three different third
parties (Samantha F., her mother, and the custodian of records for Samantha’s
psychiatrist) and thus had created an irremediable conflict of interest. The trial
court partially granted the motion, holding Humberto S. had shown “that a conflict

4
Health and Safety Code section 123115 identifies circumstances in which a
health care provider may preclude access to a minor patient’s records.
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of interest exists that is so great as to make a fair trial unlikely. In this case, the
conflict arose when the prosecution sought to represent third-party interests in a
juvenile delinquency proceeding. Thus, the court grants the motion as to the
recusal of Deputy District Attorney Ken Chiu. [¶] Second, since the supervisors
of the Compton District Attorney’s office[] were involved in the prosecution’s
case against Humberto [S.] and sanctioned the third-party representation it is likely
that the conflict has spread to other deputy district attorneys.” On that basis, it
also recused “the supervising deputy district attorneys involved in the [Humberto
S.] matter . . . along with anyone who has discussed the case, as well as the
attorneys that the supervisors direct or directed, evaluate and promote because
they are subject to the same consideration[s] barring the supervising attorneys.”
The effect of these rulings was to recuse the assigned trial prosecutor, Timothy
Hu, and an indeterminate but potentially significant number of additional
attorneys. However, the trial court denied Humberto S.’s request that the entire
district attorney’s office be recused, concluding such wholesale recusal had not
been shown to be necessary.
The People sought writ review and a stay. After issuing an order to show
cause and staying the proceedings, the Court of Appeal denied the petition and
lifted the stay. The Court of Appeal concluded, “the test to be applied here, in
reviewing the order of the trial court, remains: Is there a conflict of interest; and if
so, is that conflict so severe as to disqualify the district attorney from acting?”
The Court of Appeal acknowledged the factual scenario here was different than in
other recusal cases; the district attorney was not financially entangled with the
victim, had no personal connection to any victim or witness, and had no personal
gain at stake. Nevertheless, it held, “the actions of the deputy district attorneys
involved in the motion practice in the trial court demonstrated a one-sided
perspective on the role of the prosecution and an apparent attempt to represent the
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victim’s interest in protecting her privacy that exceeded the exercise of balanced
discretion necessary to ensure a just and fair trial. The motion practice here
evidenced a continuous effort, based on constantly shifting grounds, which
appeared designed not to adhere to the statutory procedures to preserve the
integrity of the process, but instead to block minor’s counsel from access to
records potentially critical to the defense. Had the prosecutor’s office ceased its
efforts after [Samantha’s father] consented in open court, after examination by the
court, to the disclosure, the record might not have supported the order of recusal.
But the efforts to block access to the records did not cease at that point; instead
continuing assertion of new grounds caused delay and additional hearings,
impeding defense preparation for trial. This record reveals substantial evidence
supporting the trial court’s finding, and demonstrates no abuse of discretion.”
(Fns. omitted.)
We granted review to consider the application of the recusal statute to
situations involving the alleged advocacy of third party interests.
DISCUSSION
I. Standards for a Motion to Recuse
As we have reiterated today in Haraguchi v. Superior Court, supra, __
Cal.4th at page ___ [at p. 5], Penal Code “[s]ection 1424 sets out the standard
governing motions to recuse a prosecutor: such a motion ‘may not be granted
unless the evidence shows that a conflict of interest exists that would render it
unlikely that the defendant would receive a fair trial.’ (Id., subd. (a)(1).) The
statute ‘articulates 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?” ’ (Hambarian
v. Superior Court (2002) 27 Cal.4th 826, 833, quoting People v. Eubanks[ (1996)]
14 Cal.4th [580,] 594.)” We also reaffirmed the general rule that motions to
recuse a prosecutor are reviewed for an abuse of discretion. Accordingly, we ask
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whether the trial court’s findings of fact are supported by substantial evidence,
whether its rulings of law are correct, and whether its application of the law to the
facts was not arbitrary or capricious. (Haraguchi v. Superior Court, at pp. __ [at
pp. 5-6].) Critical to the resolution of this case, we note that when a trial court’s
decision rests on an error of law, that decision is an abuse of discretion. (See id. at
p. ___ [at p. 5 & fn. 4]; People v. Eubanks, at p. 595; People v. Neely (1999) 70
Cal.App.4th 767, 775-776.)
II. Application
We consider whether the prosecutorial conduct reflected in the record
supports the trial court’s finding, and the Court of Appeal’s affirmance, of a
conflict sufficient to warrant recusal of various Los Angeles County prosecutors.
A. The Court of Appeal’s Rationale for Recusal: Obstruction
We begin with the unexceptionable proposition that the good faith assertion
of legal argument, without more, does not establish a conflict. “Zealous advocacy
in pursuit of convictions forms an essential part of the prosecutor’s proper duties
and does not show the prosecutor’s participation was improper.” (People v.
Vasquez (2006) 39 Cal.4th 47, 65.) “ ‘In an adversary system, [prosecutors] are
necessarily permitted to be zealous in their enforcement of the law.’ (Marshall v.
Jerrico, Inc. (1980) 446 U.S. 238, 248.) So long as their zeal remains within legal
limits . . . the lawful execution of their duty does not establish as a matter of law
that they have surrendered their independence and impartiality.” (Hambarian v.
Superior Court, supra, 27 Cal.4th at p. 843.) The same is true of the occurrence of
discovery disputes, which alone do not suggest a conflict. (Vasquez, at p. 65.)
Implicit in the Court of Appeal’s decision is the conclusion that the
prosecution stepped beyond permissible zealous advocacy by acting in bad faith to
obstruct discovery and impair defense preparation. Humberto S. echoes this
position. Although the persistent, bad faith use of litigation tactics lawful in and
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of themselves might in some circumstances evidence an underlying conflict that
renders a fair trial unlikely and warrants recusal, that is not this case. The trial
court made no finding of bad faith, nor did it rest its recusal order on any such
basis.5 To the contrary, it viewed the prosecution’s objections as motivated by a
desire to see the law followed, not a desire to obstruct discovery. As the record is
susceptible of this conclusion, neither the Court of Appeal nor we may substitute
our own assessment of the prosecutors’ good or bad faith in seeking to prevent
disclosure of Samantha’s medical and psychotherapy records.6
The good faith assertion of nonfrivolous arguments is not a basis for
recusal. Accordingly, we reject the Court of Appeal’s conclusion that although the
prosecution acted permissibly by initially challenging disclosure, it stepped over
the line by persisting after Samantha’s father — Humberto S.’s brother —
consented to disclosure in open court. The Court of Appeal chastised the
prosecution for creating delay, but less than a week passed between Samantha’s
father’s testimony and the trial court’s order directing that the records be
disclosed. To the extent the Court of Appeal’s conclusion rested on the additional
month of delay that resulted from the prosecution’s declining to acquiesce in the
trial court’s ruling and instead seeking appellate review, we reject that basis as

5
Of course, we do not suggest bad faith is a requirement to support recusal
in general; it is not. (See Hollywood v. Superior Court, supra, __ Cal.4th at p. __
[at p. 11] [recusal does not require a showing even of misconduct]; cf. People v.
Hoyos (2007) 41 Cal.4th 872, 924, fn. 36 [“Prosecutorial misconduct does not
require a showing of bad faith”].) But it becomes a material consideration where,
as here, the use of otherwise lawful litigation tactics is at issue.
6
The merits of the original disclosure order are not before us, and we
therefore express no opinion on the order’s correctness or the ultimate validity of
the prosecution’s arguments against its entry. Suffice it to note that the trial court
made no finding that the prosecution acted in bad faith or that any of the
arguments it raised were frivolous.
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well. As defendants may not be punished for resort to the appellate process (North
Carolina v. Pearce (1969) 395 U.S. 711, 723-725; In re Bower (1985) 38 Cal.3d
865, 873-876), so prosecutors need not fear that the good faith availment of writ
review will lead to their recusal.
B. The Trial Court’s Rationale for Recusal: Representation of
Third Parties
The trial court based its recusal order on different grounds. It concluded
that in this case a “conflict arose when the prosecution sought to represent third-
party interests in a juvenile delinquency proceeding.” The People contend this
was error as a matter of law because they had independent standing to participate
and to make arguments in the public interest, especially in a case where the state’s
compelling interest in minimizing the trauma to minor victims of sexual assault is
implicated. Because they had standing, the People reason, they were not
impermissibly representing third parties with interests potentially in conflict with
the People’s own interests. We agree that the People were allowed to participate
in the third party discovery hearings, that in doing so they did not represent third
party interests, and that the trial court therefore erred as matter of law in
concluding they had represented such interests and had thereby created a conflict.
Generally, actions may have one of three legal statuses: they may be
prohibited, permitted, or protected.7 In Alford v. Superior Court (2003) 29 Cal.4th
1033, for example, we considered whether the prosecution’s participation in

7
This legal taxonomy is not exhaustive. One could, for example, add
another category for actions that are “mandatory,” in that the actor not only has a
protected, enforceable right to take them, but is legally required to do so, i.e.,
prohibited from not doing so. For purposes of deciding this case, however, we
need not further divide the universe of actions beyond the broad categories
discussed in the text.
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Pitchess hearings8 was protected; that is, whether the People were entitled as a
matter of enforceable right to be present and submit argument. The Alford dissent
on this issue concluded the People were so entitled (Alford, at p. 1047 (conc. &
dis. opn. of Baxter, J.)), while the majority concluded participation was permitted,
but not protected (id., at pp. 1044-1046 (lead opn. of Werdegar, J.) [holding
prosecution entitled only to “notice of the date and place of the hearing,” but
permitting it to respond to inquiries from the trial court]; id. at p. 1057 (conc. &
dis. opn. of Moreno, J.) [joining lead opinion on this point]). We briefly noted but
did not decide the same question with regard to third party subpoena hearings.
(See id., at pp. 1045-1046 (lead opn. of Werdegar, J.); id. at pp. 1055-1056 (conc.
& dis. opn. of Baxter, J.).)
Likewise, we need not decide here whether prosecutorial participation in
third party subpoena hearings is permitted or protected; suffice it to say, as with
Pitchess hearings, it is not prohibited. Critically, the governing statutes do not
prohibit participation. Penal Code section 1326, which governs the issuance of
third party subpoenas, does not speak to the role (if any) of opposing parties. It
does, however, adopt the procedures of Evidence Code section 1560, subdivision
(b) for delivery of subpoenaed documents. (See Pen. Code, § 1326, subds. (b),
(c).) It also expressly precludes application of Evidence Code section 1560,
subdivision (e) to criminal cases. (Pen. Code, § 1326, subd. (b).) Under Penal
Code section 1102 and the principle of expressio unius est exclusio alterius, the
remaining subdivisions of Evidence Code section 1560 apply in criminal cases.
(See Pen. Code, § 1102 [“The rules of evidence in civil actions are applicable also
to criminal actions, except as otherwise provided in this Code”].)

8
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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In turn, Evidence Code section 1560, subdivision (d) contemplates at least
some role for opposing parties, providing in relevant part: “Unless the parties to
the proceeding otherwise agree, or unless the sealed envelope or wrapper is
returned to a witness who is to appear personally, the copy of the records shall
remain sealed and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal conducting the
proceeding, in the presence of all parties who have appeared in person or by
counsel at the trial, deposition, or hearing.” Evidence Code section 1560 thus
suggests that, as with Pitchess hearings, and in accordance with the due process
principles we recognized in Alford v. Superior Court, supra, 29 Cal.4th at page
1044, opposing parties have a right to notice and presence, but it leaves
unanswered the degree of any further participation, neither guaranteeing nor
prohibiting it. In the absence of a legislative determination that opposing parties
are to be prohibited from any part in such proceedings, we may not adopt such a
rule.
The Courts of Appeal that have considered the question are divided. In
Department of Corrections v. Superior Court (1988) 199 Cal.App.3d 1087, the
Court of Appeal correctly acknowledged that ex parte third party discovery
proceedings might be necessary to protect a defendant’s constitutional rights, but
concluded on the record before it that the trial court had gone too far in excluding
the district attorney entirely from the third party discovery proceedings at issue
there. Instead, the trial court should have conducted a limited in camera review of
the defendant’s submissions in support of discovery and otherwise conducted open
proceedings. (Id. at p. 1094.) In so ruling, the Court of Appeal emphasized that
“[t]o assure due process, open proceedings involving the participation of both
parties are the general rule in both criminal and civil cases.” (Id. at p. 1092.)
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More recently, in Smith v. Superior Court (2007) 152 Cal.App.4th 205, the
defendant sought a similar order excluding the prosecution from participation in
third party discovery proceedings directed at obtaining information from the
county jury commissioner about the jury selection system. The trial court denied
the motion, but the Court of Appeal granted writ relief, relying entirely on our
opinion in Alford v. Superior Court, supra, 29 Cal.4th 1033. (Smith, at pp. 212-
216.) To the extent Smith read Alford as not only declining to protect, but
affirmatively prohibiting, opposition party involvement in a third party discovery
proceeding, it misread our opinion; as discussed, in Alford we concluded that in
the Pitchess context prosecutors had no entitlement to participate, but were
nevertheless entitled to notice, to be present, and to participate if the trial court so
desired. Thus, Alford does not support the conclusion that opposing parties are
prohibited from involvement in third party discovery.
Consistent with the governing statutes, a canvass of the underlying
proceedings in reported cases suggests trial courts regularly permit prosecutorial
participation in third party discovery. (See People v. Hammon, supra, 15 Cal.4th
at p. 1120; People v. Webb (1993) 6 Cal.4th 494, 516; People v. Kaurish (1990) 52
Cal.3d 648, 686; Mansell v. Otto (2003) 108 Cal.App.4th 265, 269; People v.
Reber (1986) 177 Cal.App.3d 523, 528-529, overruled on other grounds by
Hammon, supra, 15 Cal.4th 1117; People v. Condley (1977) 69 Cal.App.3d 999,
1017; People v. Cohen (1970) 12 Cal.App.3d 298, 324-325.) These cases do not
establish any prosecutorial right to participate, but they do reflect a decades-long
understanding by trial courts that courts are at least permitted to entertain
argument from the prosecution on third party discovery issues. We conclude that
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understanding is correct: a trial court is permitted to entertain argument from the
opposing party relating to third party discovery.9
Arguing against the prosecution’s standing claim, Humberto S. contends
the better response to concerns about the preservation of the therapist-patient
privilege for sex crime victims is for therapists to protect the privilege and courts
to act as gatekeepers. (See, e.g., People v. Superior Court (Laff) (2001) 25 Cal.4th
703, 713 [custodian of records has a duty to assert privilege on behalf of privilege
holder]; Rudnick v. Superior Court (1974) 11 Cal.3d 924, 932-933 [court has
discretion to protect privilege of absent third party on its own motion].) Whether
or not this is so, our conclusion that trial courts may permit or solicit prosecutorial
participation is fully consistent with Humberto S.’s suggested approach. It is
undisputed that trial courts are authorized, indeed obligated, to regulate the use of
subpoenas to obtain privileged third party discovery. (Evid. Code, § 916; see, e.g.,
People v. Pack (1988) 201 Cal.App.3d 679, 685 [court statutorily required to
assert privilege on behalf of absent victim], overruled on other grounds by People
v. Hammon, supra, 15 Cal.4th 1117; Lemelle v. Superior Court (1978) 77
Cal.App.3d 148, 158 [same]; People v. Manson (1976) 61 Cal.App.3d 102, 197
[“courts have inherent power to control the issuance of their own process and to
preclude an abuse of the right to subpoena witnesses”].) In fulfilling this
gatekeeping function, a court may choose to permit or solicit prosecutorial input.
(Cf. Alford v. Superior Court, supra, 29 Cal.4th at p. 1044 [trial court may solicit
prosecutorial input at Pitchess hearing].)
The trial court in this case did not just permit the prosecution’s participation
in hearings on the third party discovery; it actively and continually solicited that

9
Whether the trial court is required to do so, we need not and do not decide.
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participation. It specifically asked the prosecution for briefing on whether the
subpoenaed records could lawfully be disclosed to the defense. It directed that the
People procure the parents’ presence at a hearing to determine whether disclosure
should be ordered. It overruled multiple defense objections to the People’s
participation. Even as it announced its tentative ruling that Samantha’s father’s
consent authorized disclosure, it asked the People for further argument. It then
invited the People to investigate whether a family court order might exist that
required joint consent, and it voluntarily reserved its ruling when the People
accepted the opportunity.10 Given the trial court’s acceptance of the prosecution’s
initial concerns and its repeated solicitation of further argument, we conclude the
prosecution stepped over no line in submitting its views.
More to the point in this recusal case, a prosecutor’s submission of
argument at a third party discovery hearing, whether permitted or solicited by the
trial court, does not amount to the representation of third party interests. In such
instances, the prosecution’s interests and arguments may align with those of one
or more third parties, but the prosecution does not thereby assume representation
of those parties any more than an amicus curiae whose interests align with a party
represents that party by submitting arguments that support its position. Indeed, the
two situations are simply two sides of the same coin; as a nonparty may, with the
court’s permission, submit argument supporting the interests of a party, so a party

10
“THE COURT: The Court finds that either parent has the ability to
consent. And once consent is given by either parent that there is consent, and that
the objecting parent can’t stop the release. Okay. Unless there’s a specific order
by the family court indicating that mutual consent is required. [¶] Do you want
time to check that out? That’s okay too.

“THE PEOPLE: I would appreciate that, your Honor. Since it is an
important issue, I would like that time.

“THE COURT: All right then. I’ll reserve my ruling.” (Italics added.)
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may, with the court’s permission, submit argument supporting the interests of a
nonparty.
Our comment in Alford that a prosecutor who actively challenges defense
third party Pitchess discovery “advance[s] the interests of the third party custodian
and police officer” (Alford v. Superior Court, supra, 29 Cal.4th at p. 1045) should
not be taken to mean that the prosecution in doing so literally represents the third
party custodian or police officer; as a matter of law, it does not. Rather, the
prosecution’s arguments in such circumstances simply benefit the interests of the
third party custodian and police officer.
Nor did the prosecution assume representation of any third party when it
sought to have a guardian ad litem appointed to represent Samantha’s interests.
The scheme for appointment of guardians ad litem expressly contemplates that
other parties to a proceeding may propose to the court that a guardian be appointed
for a minor or an incompetent. (Code Civ. Proc., § 373.) Such a proposal does
not thereby render the party the representative of the minor’s interests; instead, it
is the court itself, and the guardian ad litem if one is appointed, that bears that
responsibility. (See In re Josiah Z. (2005) 36 Cal.4th 664, 683; Williams v.
Superior Court (2007) 147 Cal.App.4th 36, 47, 49.) The statutory scheme
recognizes that the interests of justice are served best if the broadest range of those
involved in legal proceedings are vested with the capacity to bring to a court’s
attention the need to ensure protection of a minor’s rights. When it appears those
rights may go unprotected, a party properly may act to avoid a potentially
irreversible mistake.
Here, for example, Samantha’s considerable statutory and constitutional
interest in the privacy of her communications with her therapist was at stake. (Cal.
Const., art. I, § 1; Evid. Code, § 1014; see People v. Hammon, supra, 15 Cal.4th at
p. 1127 [psychotherapist-patient privilege is an aspect of the constitutional right of
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privacy]; People v. Stritzinger (1983) 34 Cal.3d 505, 511 [same]; People v. Webb,
supra, 6 Cal.4th at p. 518 [there is a “strong policy of protecting a patient’s
treatment history”].) The trial court proposed to hold that Samantha’s father’s
consent waived her privilege to preserve the confidentiality of these
communications, despite the facts that (1) Samantha’s mother, a legal guardian
entitled to assert the privilege on Samantha’s behalf (Evid. Code, §§ 1013, subd.
(b), 1014, subd. (a)), was asserting the privilege, and (2) Samantha’s father, as the
brother of defendant Humberto S., had a manifest conflict of interest. Parental
conflicts of interest may in some instances disqualify parents from waiving or
asserting privileges on behalf of their minor children (see In re Daniel C. H.,
supra, 220 Cal.App.3d at p. 828; In re Troy D. (1989) 215 Cal.App.3d 889, 900-
901) and in other instances support the appointment of an independent guardian ad
litem (see, e.g., Williams v. Superior Court, supra, 147 Cal.App.4th at p. 48).
Thus, at stake here were the constitutional rights of a nine-year-old alleged victim
of a sex crime, at a point in time when disagreement between her parents, and one
parent’s conflict of interest, might have prevented her parents, her legal guardians,
from effectively protecting those rights. If the prosecutors discerned the potential
for a minor’s interests to go unrepresented, Code of Civil Procedure section 373
allowed them to bring this to the court’s attention without thereby assuming
representation of Samantha.11
As the Court of Appeal properly recognized, Bullen v. Superior Court
(1988) 204 Cal.App.3d 22, which Humberto S. relies on, is inapposite. There, the

11
Whether in this situation the court could appoint a guardian ad litem for
Samantha, who was not technically a party (see In re Marriage of Lloyd (1997) 55
Cal.App.4th 216, 222-224), is not before us, and we express no opinion on the
question; we decide only that in making the request, the prosecution did not
thereby assume representation of Samantha.
17

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prosecution had a formal relationship with the third party: it represented the
widow of a crime victim in writ proceedings challenging defense access to the
crime victim’s dwelling. (Bullen, at p. 25.) Because a district attorney has no
authority to prosecute civil actions absent specific legislative authorization,12 this
representation was unauthorized. The Court of Appeal remedied the situation by
recusing the district attorney from the civil writ proceeding; lacking jurisdiction, it
had no authority to, and did not, address whether recusal should extend as well to
the underlying criminal action.
Moreover, the district attorney’s formal representation of the victim in
Bullen v. Superior Court, supra, 204 Cal.App.3d 22, gave it a structural incentive
(its duty of loyalty to its client) potentially at odds with the prosecution’s duty to
seek justice in a fair and evenhanded manner. Our cases upholding recusal have
generally identified a structural incentive for the prosecutor to elevate some other
interest over the interest in impartial justice, should the two diverge. (See, e.g.,
People v. Eubanks, supra, 14 Cal.4th 580 [receipt of income from the victim
created an incentive to pursue prosecution beyond what the merits might warrant];
People v. Conner (1983) 34 Cal.3d 141 [status of deputy district attorney as victim
and witness created an incentive to pursue prosecution beyond what the merits
might warrant]; People v. Superior Court (Greer) (1977) 19 Cal.3d 255 [status of
district attorney’s office employee as witness, relative of the victim, and
beneficiary of the prosecution created an incentive to pursue prosecution beyond
what the merits might warrant].) In true third party representation cases, a
material risk exists that a prosecutor will continue to represent the third party

12
See Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th
1143, 1155-1156; People v. McKale (1979) 25 Cal.3d 626, 633; Safer v. Superior
Court (1975) 15 Cal.3d 230, 235-237.
18

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interests even when those interests diverge from the People’s interest in the
evenhanded pursuit of justice. (E.g., Young v. United States ex rel. Vuitton et fils
S. A. (1987) 481 U.S. 787 [attorneys appointed to prosecute criminal contempt for
violation of an injunction against trademark infringement had a conflict because
they also represented the trademark holder].) A prosecutor who has undertaken an
attorney-client representation of the victim in a case might in the future feel
pressure from the loyalty owed his or her client to pursue the case more vigorously
than the merits otherwise dictate.
Here, in contrast, there was no formal representation of any third party, no
corresponding duty of loyalty, and no divided loyalty or structural incentive
potentially at odds with these prosecutors’ duty to handle the prosecution of
Humberto S. fairly. Rather, the prosecution vigorously advocated a legal position
that happened to align with the interests of various third parties at one moment in
time. In doing so, it was representing not the third party, but its own interest in
promoting victim cooperation.13 There was no reason to believe that if in the
future the interests of the prosecutor and victim diverged, these prosecutors would
choose to elevate the victim’s interests over their duty to act fairly. (Cf. Young v.
United States ex rel. Vuitton et fils S. A., supra, 481 U.S. at p. 807, fn. 18
[becoming overzealous and overcommitted to a conviction is a personal issue, not
a structural one].)

13
Reporting a sexual offense — especially when the reporting victim is a
minor — can be an enormously difficult and traumatic step. Successful
prosecution of such cases frequently depends on victim cooperation. Prosecutors
may reasonably conclude that if victims know disclosure of their confidential
psychotherapy records without observance of legal protections is a significant risk,
they will be less willing to step forward.
19

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To summarize: This court explained in Alford v. Superior Court, supra, 29
Cal.4th 1033, that a prosecutor is not entitled to submit argument in certain types
of third party discovery proceedings. This does not mean the prosecutor is
prohibited from doing so; certainly with the trial court’s consent, he or she is
allowed to do so. Indeed, as even the Alford majority acknowledged, the
prosecutor is entitled to notice of the hearing and may there address any questions
the trial court has. (Id. at p. 1044.) Having been allowed to participate in the
hearing, the prosecutor is not for that reason then subject to recusal unless he or
she has, as in Bullen v. Superior Court, supra, 204 Cal.App.3d 22, and like cases,
formally assumed representation of a third party. Only then does the prosecutor’s
appearance ripen into a structural incentive to represent interests at odds with the
duty to seek evenhanded justice.
Consequently, the trial court’s conclusion that various prosecutors had a
conflict because of their representation of third parties was wrong as a matter of
law. The trial court could, as in hearing after hearing it did, permit and indeed
invite the prosecution to participate over defense objection. Only after multiple
hearings — indeed, after writ review had been completed and the underlying
documents disclosed — did the trial court apparently change its mind and decide
the prosecution’s participation created an impermissible conflict of interest. But
the trial court was correct initially, when it allowed during these many hearings the
prosecution’s participation. The prosecutors’ advocacy in these hearings of
positions in line with the interests of third parties did not involve actual
representation of those parties’ interests and thus created no ongoing conflict or
divided loyalty that might jeopardize Humberto S.’s right to a fair trial. Nor can
we affirm on the Court of Appeal’s alternate theory that zeal in pressing an
otherwise lawful position may become excessive and rise to the level of
obstruction, thus creating a conflict; again, absent bad faith, as a matter of law it
20

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cannot. Accordingly, because the trial court’s decision to recuse numerous
prosecutors in this case rested on an error of law, it was an abuse of discretion.14
DISPOSITION
For the foregoing reasons, we reverse the Court of Appeal’s judgment and
remand this case to that court with directions to issue a writ of mandate vacating
the trial court’s recusal order and to remand the case to the trial court for further
proceedings consistent with this opinion.
WERDEGAR, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

14
As in Hollywood v. Superior Court, supra, __ Cal.4th at page ___ [at p. 17,
fn. 10], because there was no conflict justifying recusal of any prosecutor, we need
not discuss separately the trial court’s decision to recuse Deputy District Attorneys
Chiu and Hu and its decision to recuse other prosecutors more remote from the
discovery dispute. Also as in Hollywood, because there was no conflict, we need
not consider the further question whether any conflict was of a magnitude
sufficient to render a fair trial unlikely. (Pen. Code, § 1424, subd. (a)(1).)
21

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Superior Court (Humberto S.)
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 145 Cal.App.4th 32
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S149123
Date Filed: May 12, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Mark R. Frazin, Juvenile Court Referee, Michael Nash, Judge

__________________________________________________________________________________

Attorneys for Appellant:

Steve Cooley, District Attorney, Lael R. Rubin, William Woods and Tracey Lopez, Deputy District
Attorneys, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Donald E. de Nicola, Deputy State Solicitor General, Dane R.
Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, and Kristofer
Jorstad, Deputy Attorney General, as Amici Curiae on behalf of Petitioner.

Michael A. Ramos, District Attorney (San Bernardino) and Grover D. Merritt, Lead Deputy District
Attorney, for California District Attorneys Association as Amicus Curiae on behalf of Petitioner.

Kent S. Scheidegger and L. Douglas Pipes for Criminal Justice Legal Foundation as Amicus Curiae on
behalf of Petitioner.

Loeb & Loeb, Karen R. Thorland and Anne W. Braveman for Rape Treatment Center at Santa Monica-
UCLA Medical Center and Orthopaedic Hospital as Amicus Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Michael P. Judge, Public Defender, Albert J. Menaster, Kelly O’Brien and Maureen Pacheco, Deputy
Public Defenders, for Real Party in Interest.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Tracey Lopez
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-2743

Maureen Pacheco
Deputy Public Defender
320 West Temple Street, Room 590
Los Angeles, CA 90012
(213) 974-3001

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Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Did the trial court err in recusing trial prosecutors and supervising attorneys after the father of a sexual abuse victim consented to disclosure of her medical and psychiatric records to the defense, but the prosecutors continued to block access to the records?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 05/12/2008	43 Cal. 4th 737, 182 P.3d 600, 76 Cal. Rptr. 3d 276	S149123	Review - Criminal Original (non-H.C.)	closed; remittitur issued

Disposition
May 12 2008	Opinion: Reversed

Dockets
Dec 28 2006	Petition for review filed   The People, petitioner Lael R. Rubin, William Woods & Tracey Lopez, counsel
Dec 29 2006	Record requested
Jan 16 2007	Received Court of Appeal record   one doghouse
Feb 15 2007	Time extended to grant or deny review   to and including March 28, 2007
Mar 21 2007	Petition for review granted (criminal case)   votes: George, C.J., Kennard, Bxter, Werdegar, Chin, Moreno & Corrigan, JJ.
Apr 3 2007	Received Court of Appeal record
Apr 3 2007	Record requested
Apr 20 2007	Opening brief on the merits filed   Petitioner The People
May 21 2007	Request for extension of time filed   to file Answer Brief/Merits to June 20, 2007 Deputy Public Defender Albert J. Menaster for the people
May 22 2007	Note:   Received faxed copy of real party's extension request to 6-20-07 to file the answer brief/merits.
May 25 2007	Extension of time granted   On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including June 20, 2007.
Jun 20 2007	Answer brief on the merits filed   Real party in Interest Humberto S. Deputy Public Defender Maureen Pacheco
Jul 9 2007	Request for extension of time filed   The People, Petitioner Attorney Tracey Lopez asking to July 17, 2007
Jul 11 2007	Extension of time granted   On application of petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 17, 2007.
Jul 16 2007	Reply brief filed (case fully briefed)   The People, Petitioner Attorney
Aug 10 2007	Received application to file Amicus Curiae Brief   California District Attorneys Association in support of petitioner (People) by Grover D. Merritt, Lead Deputy District Attorney, Appellate Services Unit San Bernardino County (brief separate)
Aug 15 2007	Received application to file Amicus Curiae Brief   Criminal Justice Legal Foundation in support of Petitioner People of the State of California by L. Douglas Pipes, counsel.
Aug 15 2007	Amicus curiae brief filed   Deputy Attorney General Pamala Hamanaka in support of Petitioner The People
Aug 15 2007	Permission to file amicus curiae brief granted   The application of California District Attorneys Association for permission to file an amicus curiae brief in support of Petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 15 2007	Amicus curiae brief filed   California District Attorneys Association in support of Petitioner.
Aug 16 2007	Request for extension of time to file amicus curiae brief   to 9-14-2007 to file Amicus Brief of Santa Monica-UCLA Medical Center and Orthopaedic Hospital in support of petitioner (CRC 8.25(b)
Aug 20 2007	Extension of time granted   On application for an extension of time of Amicus Curiae The Rape Treatment Center At Santa Monica-UCLA Medical Center and Orthopaedic Hospital, and good cause appearing, it is hereby ordered that the time to serve and file the amicus curiae brief is extended to and including September 14, 2007. No further exrtensions of time will be granted.
Aug 20 2007	Permission to file amicus curiae brief granted   The application of Criminal Justice Legal Foundation for permissiosn to file an amicus curiae brief in support of Petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 20 2007	Amicus curiae brief filed   Criminal Justice Legal Foundation in support of Petitioner.
Sep 17 2007	Received application to file Amicus Curiae Brief   Rape Treatment Center at Santa Monica-UCLA Medical Center and Orthopaedic Hospital in support of petitioner
Sep 20 2007	Permission to file amicus curiae brief granted   The appilcation of Rape Treatment Center at Santa Monica-UCLA Medical Center and Orthopaedic Hospital for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 20 2007	Amicus curiae brief filed   Rape Treatment Center at Santa Monical UCLA-Medical Center and Orthopaedic Hospital in support of petitioner.
Oct 10 2007	Request for extension of time filed   Deputy Pub. Defender Maureen Pacheco for rpi: (Humberto S.)
Oct 15 2007	Extension of time granted   On application of Real Party in Interest and good cause appearing, it is ordered that the time to serve and file the Real Party's Response to Amicus Curiae Briefs is extended to and including October 30, 2007.
Oct 17 2007	Note: Mail returned and re-sent   to Attorney L. Douglas Pipes at address appearing on the State Bar of California website.
Oct 30 2007	Response to amicus curiae brief filed   Real Party in Interest: Humberto S. Public Defender Maureen Pacheco
Jan 4 2008	Received Court of Appeal record
Jan 7 2008	2nd record request
Jan 7 2008	Received Court of Appeal record
Mar 4 2008	Case ordered on calendar   to be argued on Tuesday, April 1, 2008, at 1:30 p.m., in Los Angeles
Apr 1 2008	Cause argued and submitted
May 9 2008	Notice of forthcoming opinion posted
May 12 2008	Opinion filed: Judgment reversed   We reverse the Court of Appeal's judgment and remand this case to that court with directions to issue a writ of mandate vacating the trial court's recusal order and to remand the case to the trial court for further proceedings consistent with this opinion. Opinion by Werdegar, J. -- Joined by George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
Jun 17 2008	Remittitur issued (criminal case)
Jun 25 2008	Received:   Acknowledgment of receipt for remittitur from Second District, Div. 7, signed for by Eva McClintock, Deputy

Briefs
Apr 20 2007	Opening brief on the merits filed
Jun 20 2007	Answer brief on the merits filed
Jul 16 2007	Reply brief filed (case fully briefed)
Aug 15 2007	Amicus curiae brief filed
Aug 15 2007	Amicus curiae brief filed
Aug 20 2007	Amicus curiae brief filed
Sep 20 2007	Amicus curiae brief filed
Oct 30 2007	Response to amicus curiae brief filed

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