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
MASSEY HARUSHI HARAGUCHI,
Petitioner,
S148207
v.
Ct.App. 2/6 B191161
THE SUPERIOR COURT OF SANTA
BARBARA COUNTY,
Santa Barbara County
Super. Ct. No. 1203536
Respondent;
THE PEOPLE,
Real Party in Interest.
Prosecutors are public fiduciaries. They are servants of the People, obliged
to pursue impartially in each case the interests of justice and of the community as
a whole.1 When conflicts arise that compromise their ability to do so, they can
and should be recused. But defendants bear the burden of demonstrating a
1
The public prosecutor “is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.”
(Berger v. United States (1935) 295 U.S. 78, 88; accord, People v. Eubanks (1996)
14 Cal.4th 580, 589; People v. Conner (1983) 34 Cal.3d 141, 148; People v.
Superior Court (Greer) (1977) 19 Cal.3d 255, 266; see Corrigan, On
Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537, 538-539.)
1
genuine conflict; in the absence of any such conflict, a trial court should not
interfere with the People’s prerogative to select who is to represent them.
In this and a companion case, Hollywood v. Superior Court (May 12, 2008,
S147954) __ Cal.4th __, we consider the extent to which involvement in literary
and cinematic endeavors may give rise to conflicts requiring recusal. Here, the
lead prosecutor moonlighted as a novelist, writing a fictional account of a heroine
prosecutor’s decision whether to try a rape case involving an intoxicated victim.
The novel was published shortly before her scheduled prosecution of petitioner
Massey Harushi Haraguchi for the rape of an intoxicated victim. In this case, as in
Hollywood, the trial court found no conflict. In opinions issued the same day, the
same Court of Appeal — relying in part on the unusual and distinctive facts of
these cases — exercised its independent judgment and in both cases reversed and
ordered recusal. Thus, we must also consider the standard for reviewing a trial
court’s decision finding, or rejecting, the existence of a disqualifying conflict.
We reaffirm our long-standing rule that recusal motions are reviewed under
a deferential abuse of discretion standard. Furthermore, we reverse the Court of
Appeal here based on its failure to grant appropriate deference and based on the
presence in the record of evidence sufficient to support the trial court’s conclusion
that no disqualifying conflict existed and no unlikelihood of a fair trial had been
proven.
FACTUAL AND PROCEDURAL BACKGROUND
On September 14, 2005, an information was filed charging Haraguchi, inter
alia, with rape of an intoxicated person. (Pen. Code, § 261, subd. (a)(3).)2
2
All further statutory references are to the Penal Code.
2
On April 25, 2006, Haraguchi moved for recusal of Deputy District
Attorney Joyce Dudley and the Santa Barbara County District Attorney’s Office
based on Dudley’s publication of a novel, Intoxicating Agent, in January 2006, as
well as her subsequent promotion of the book. Haraguchi alleged, inter alia, that
(1) the book contained a lengthy fictional account of the rape of an intoxicated
person; (2) the fictional trial, like Haraguchi’s, was to begin around April 2006;
(3) a character in Dudley’s novel bore a resemblance to Haraguchi; and (4) the
facts of the fictional rape in other respects mirrored another unrelated case in
which Dudley had obtained only a hung jury. Haraguchi further contended that
Dudley was marketing the book locally, selling it in at least two local bookstores,
conducting a book signing at one of the bookstores and at the Women’s Center of
the University of California at Santa Barbara, and doing an April 4, 2006,
interview with a Santa Barbara television station about the book. In addition, the
Santa Barbara Independent published a favorable review of the novel.
Haraguchi contended Dudley’s publication and promotion of her book was
influencing how she handled his case. According to Haraguchi’s counsel, “[w]hen
I took over the Haraguchi 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 Haraguchi, but that she could win it.” Counsel argued that Dudley’s
remarks were similar to views in the novel expressed by the protagonist, Santa
Barbara County District Attorney Jordon Danner: “Jordon was positive another
D.A. wouldn’t want this case; and, she knew the victim would feel betrayed if she
handed it off.” (Dudley, Intoxicating Agent (2006) p. 57 (Intoxicating Agent).)
Counsel further declared: “From the first time the undersigned talked to Ms.
Dudley about this case, she said it would not settle. She has refused to enter into
any settlement negotiations and has summarily informed the court that the case
3
will go to trial.” Based on this, Haraguchi contended Dudley’s interest in
promoting her book was compromising her willingness to seek justice impartially.
In opposition, Dudley disputed these allegations. She submitted a
declaration denying that Intoxicating Agent was based in any way on the
Haraguchi case, that its publication or publicity were in any way coordinated with
the Haraguchi case, that Haraguchi’s counsel had accurately represented her
remarks, or that her decisions had in any way been shaped by the book’s
publication.
The trial court denied Haraguchi’s motion, finding there was no conflict
warranting recusal. It concluded publication of the book around the same time as
Haraguchi’s trial was coincidental; the rape case described in the book was
unrelated to Haraguchi’s case; the alleged physical resemblance of a character (not
the fictional rapist) to Haraguchi was not prejudicial; and, to the extent there might
be any conflict, it was not so grave as to render it unlikely Haraguchi would
receive a fair trial.
The Court of Appeal granted Haraguchi’s petition for a writ of mandate.
Declining to defer to the trial court because the trial court “had no precedent to
guide it,” the Court of Appeal held recusal was required as a matter of law. It
concluded Dudley’s views of the justice system, as reflected in the novel, were so
one-sided as to raise a reasonable possibility she would not exercise her discretion
evenhandedly, and her interest in promoting her book presented a conflict so great
it was unlikely Haraguchi could receive a fair trial. However, the Court of Appeal
declined Haraguchi’s further request to recuse the entire office.
We granted review to consider both the standard of review and its
application to a prosecutorial recusal motion in these circumstances.
4
DISCUSSION
I. Standards for a Motion to Recuse
Section 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, supra, 14 Cal.4th at p. 594.)
We uniformly have held that a motion to recuse is directed to the sound
discretion of the trial court, and its decision to grant or deny the motion is
reviewed only for an abuse of discretion. (People v. Vasquez (2006) 39 Cal.4th
47, 56; Hambarian v. Superior Court, supra, 27 Cal.4th at p. 834; People v.
Eubanks, supra, 14 Cal.4th at p. 594; People v. Superior Court (Greer), supra, 19
Cal.3d at p. 269.) The abuse of discretion standard is not a unified standard; the
deference it calls for varies according to the aspect of a trial court’s ruling under
review. The trial court’s findings of fact are reviewed for substantial evidence,3
3
E.g., People v. Vasquez, supra, 39 Cal.4th at page 56; People v. Breaux
(1991) 1 Cal.4th 281, 293-294; People v. Conner, supra, 34 Cal.3d at page 149.
Contrary to Haraguchi’s suggestion at oral argument, that the trial court’s findings
were based on declarations and other written evidence does not lessen the
deference due those findings. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.)
5
its conclusions of law are reviewed de novo,4 and its application of the law to the
facts is reversible only if arbitrary and capricious.5
The Court of Appeal in this case gave no deference to the trial court’s
findings of fact or its application of the law to those facts.6 It offered two
justifications for this departure: (1) this case involved novel circumstances and
was thus a matter of first impression; and (2) the Court of Appeal had an
independent interest in eliminating errors before trial. Neither persuades us to
create an exception to the choice of the abuse of discretion standard.
With respect to this case being a matter of first impression, we note that
virtually every case is, to a greater or lesser degree, a matter of first impression.
The difference between each new set of facts and those that previously have been
ruled upon may be small and immaterial or large and momentous. Where on the
continuum a new set of facts lies is to some extent in the eye of the beholder; a
court of a mind to reverse may always point to those elements of a case that it
views as distinguishing and on that basis assert the issue is a matter of first
impression. The Court of Appeal’s proposal that cases of “first impression”
4
Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176; see
People v. Eubanks, supra, 14 Cal.4th at page 595 (“The discretion of a trial court
is, of course, ‘ “subject to the limitations of legal principles governing the subject
of its action” ’ ”); People v. Neely (1999) 70 Cal.App.4th 767, 775-776 (“The trial
court does not have discretion to depart from legal standards”).
5
E.g., People v. Roldan (2005) 35 Cal.4th 646, 688; People v. Jordan (1986)
42 Cal.3d 308, 316.
6
Haraguchi argues the Court of Appeal actually gave deference to the trial
court, but simply phrased its discussion of the standard of review awkwardly. The
proof lies not in closely parsing what the Court of Appeal said about the standard
of review, but in what the Court of Appeal actually did: it made no mention of,
and gave no deference to, those trial court findings of fact that contradicted its
conclusions.
6
should receive independent review thus offers no meaningful boundaries and
wholly undermines the trial court’s role in evaluating recusal motions in the first
instance.
As an alternative ground for exercising independent review, the Court of
Appeal pointed to its interest in policing conflicts of interest and addressing
potential errors at the earliest opportunity, rather than on direct review or in habeas
corpus proceedings. Its concerns are valid; we have acknowledged that pretrial
recusals serve the important function of “avoid[ing] conflicts that might lead
ultimately to due process violations and hence to reversals or mistrials.” (People
v. Vasquez, supra, 39 Cal.4th at p. 59.) These concerns justify vesting trial courts
with broad discretion to protect against procedural unfairness by ordering pretrial
recusals, as we emphasized in Vasquez and in People v. Superior Court (Greer),
supra, 19 Cal.3d at pages 264-265. They may also justify allowing the decision to
grant or deny recusal to be reviewed pretrial through mandamus, as it was here.
The Court of Appeal’s concerns do not, however, support a change in the
standard of review. The assertion that pretrial review should be de novo rests on
the unspoken assumption that independent review will reduce the rate of error —
that appellate courts given a free hand to weigh the evidence and disregard trial
court findings will reverse erroneous rulings and eliminate error more often than
they reverse correct rulings and thereby introduce error. That assumption is
unfounded. We review rulings on motions to recuse only for abuse of discretion
precisely because trial courts are in a better position than appellate courts to assess
witness credibility, make findings of fact, and evaluate the consequences of a
potential conflict in light of the entirety of a case, a case they inevitably will be
more familiar with than the appellate courts that may subsequently encounter the
case in the context of a few briefs, a few minutes of oral argument, and a cold and
often limited record. (See People v. Roldan, supra, 35 Cal.4th at p. 688 [abuse of
7
discretion standard “reflects the trial court’s superior ability to consider and weigh
the myriad factors that are relevant to the decision at hand”]; People v. Conner,
supra, 34 Cal.3d at p. 149 [trial court is in the best position to assess the impact of
events giving rise to possible prosecutorial conflicts]; People v. Jenan (2006) 140
Cal.App.4th 782, 793 [abuse of discretion standard applies because the trial court
is in the best position to make relevant conflict determinations].) Nothing
suggests to us that de novo review of pretrial recusal motions would increase the
accuracy of such determinations. As the trial court has the superior vantage point,
the abuse of discretion standard applies.
II. Application to Authors/Attorneys
We turn to the application of the recusal statute to the lead prosecutor in
Haraguchi’s case. As noted, section 1424 sets out a two-part test for determining
whether recusal is appropriate. Under the first part, a court must determine
whether a conflict exists, that is, whether “the circumstances of a case evidence a
reasonable possibility that the DA’s office may not exercise its discretionary
function in an evenhanded manner.” (People v. Conner, supra, 34 Cal.3d at
p. 148; accord, People v. Eubanks, supra, 14 Cal.4th at p. 594.) If such a conflict
exists, the court must further determine whether the conflict is “ ‘ “so grave as to
render it unlikely that defendant will receive fair treatment during all portions of
the criminal proceedings.” ’ ” (People v. Vasquez, supra, 39 Cal.4th at p. 56,
italics omitted.) Thus, the first half of the inquiry asks only whether a “reasonable
possibility” of less than impartial treatment exists, while the second half of the
inquiry asks whether any such possibility is so great that it is more likely than not
the defendant will be treated unfairly during some portion of the criminal
proceedings.
8
A. Existence of a Conflict
The trial court concluded there was no “conflict that would justify recusal
of Ms. Dudley.” It based that conclusion on a series of factual findings: “The
publication of her book appears to be coincidental to Mr. Haraguchi’s
circumstances. The circumstances related in her book factually don’t appear to
relate to Mr. Haraguchi’s circumstances, and the fact that there may be similarities
to some other case that Ms. Dudley tried in the past doesn’t establish any conflict
as far as Mr. Haraguchi’s case is concerned. Whatever Ms. Dudley’s feelings
about the results of that prior prosecution are, those feelings would be present with
or without the existence of the book and don’t create any conflict of interest.”
In reversing the trial court and concluding that Dudley had to be recused as
a matter of law, the Court of Appeal found two alleged conflicts. First, it reasoned
that publishing a book linked to the Haraguchi case gave Dudley a financial
incentive to prosecute the case, as the publicity might increase her book sales.
Second, it concluded the fictional prosecutor Jordon Danner’s views could be
imputed to Dudley (and, more generally, that the views about the criminal justice
system as a whole reflected in the book’s interior world could be imputed to
Dudley), and that those views rendered it unlikely Haraguchi could receive a fair
trial.
In reasoning that Dudley had a disqualifying financial conflict of interest
because of links between Intoxicating Agent and the Haraguchi case, the Court of
Appeal disregarded the trial court’s findings that Intoxicating Agent was not
factually based on Haraguchi, its publication was not intentionally timed to
coincide with Haraguchi, and its publicity was not linked to Haraguchi. Each
finding was supported by substantial evidence. In a declaration, Dudley asserted
9
under oath that Intoxicating Agent’s publication was not timed to coincide with
Haraguchi’s trial.7 Her declaration likewise asserted that she did not base the plot
on the Haraguchi case, and a comparison of the book with the Haraguchi record
fully supports that assertion.8
The trial court was entitled to credit Dudley’s declaration. Likewise,
review of the evidence in the record confirms the trial court’s conclusion that
Haraguchi failed to establish any interconnection between his case and the
promotion of Intoxicating Agent; none of the promotional materials submitted by
Haraguchi in support of his recusal motion allude in any way to his case. We thus
are required to accept, as was the Court of Appeal, the findings, supported by
substantial evidence, that “[t]he publication of her book appears to be coincidental
to Mr. Haraguchi’s circumstances” and that “[t]he circumstances related in her
book factually don’t appear to relate to Mr. Haraguchi’s circumstances.”9
7
The book was published in January 2006. Haraguchi’s trial was originally
scheduled for April 2006.
8
The portion of the Haraguchi record we have suggests the alleged victim
and Haraguchi had at least some level of prior acquaintance. In the novel, the
victim and the defendant had none. Haraguchi apparently assaulted the victim in
her apartment. In the novel, the defendant met the victim at a party, took her to a
beach, and assaulted her on the beach. Haraguchi is also charged with oral
copulation, residential burglary, and marijuana possession; in the novel, the facts
described do not support any similar charges. Haraguchi alleges no similarity
between himself and the novel’s rape defendant, only a similarity to a confederate.
As the matter is pretrial, the Haraguchi facts are not established; we note only that
these facts are suggested by the information and by other documents in the record.
9
The limited nature of the record as presented to the Court of Appeal and to
us in this writ proceeding underlines why recusal motions are properly directed to
the trial court’s discretion; having presumably presided over pretrial proceedings
in Haraguchi, the trial court was in a better position to go beyond the bare
similarity that each involved a charge of rape and victim intoxication and assess
the actual relationship, if any, between the book and the Haraguchi trial.
10
The trial court’s findings that the rape case in Intoxicating Agent was not
based on and was factually dissimilar to the Haraguchi prosecution are significant.
Because there was no meaningful factual connection between the two, publication
of the book created little incentive for Dudley to handle the Haraguchi prosecution
any differently than she otherwise would have. That is, while a prosecutor’s
literary career might benefit generally from publicity attendant on successful
prosecutions or plea bargains, there is little reason to conclude such a second
career would have distortive effects on the incentives to try, settle, or dismiss any
particular unrelated case. Dudley would not gain from insisting on pressing
forward with a case whose merits might otherwise suggest a different disposition,
rather than settling or dismissing it and devoting prosecutorial resources to another
case with a better chance for a favorable outcome. Thus, whatever financial
incentives her novel might have created for Dudley, those incentives were not
likely to alter how she handled the Haraguchi case.10 (Cf. People v. Eubanks,
supra, 14 Cal.4th at p. 598 [holding that financial incentives tied to a particular
case that might skew the charging or plea bargaining decisions in that case create a
cognizable conflict].)
As a further basis for recusal, the Court of Appeal concluded Dudley’s
personal views about the criminal justice system, as reflected by Intoxicating
Agent, would preclude Haraguchi from receiving a fair trial. In the world of
Intoxicating Agent, as the Court of Appeal interpreted it, defendants are villainous,
defense attorneys are manipulative schemers, and prosecutors are heroes.
10
The same is true even if, as Haraguchi argued in his original moving
papers, the book were based on another prior case; it would not establish any
conflict of interest in this case.
11
Moreover, the Court of Appeal directly attributed the views of the fictional
prosecutor, Jordon Danner, to Dudley.
However, as the trial court correctly recognized, Ms. Dudley’s views about
her role as a prosecutor, and her ability to fairly and impartially represent the
interests of the People, are unaffected by and largely independent of whether a
fictional character in a novel she wrote might not embody the prosecutorial ideal
in the eyes of a reviewing court. Dudley is not Danner; Danner is not Dudley.
Whatever imbalanced views Danner may hold, Dudley may not automatically be
charged with them. The same is true of the world view presented in Intoxicating
Agent, which is, after all, a work of fiction. That world view at best offers only a
distorted lens through which to perceive what Dudley’s views might be.
Protagonists in a novel need not be paragons of impartiality to permit their
creators to fairly prosecute criminals; likewise, the landscape of a novel need not
precisely mirror the balanced and fair justice system our society aspires to in order
to allow its author to participate in that system.
The Court of Appeal deconstructed the author’s acknowledgments in order
to attribute the book’s entire point of view to her. The acknowledgments, which
indicate Dudley tried to prepare a “trustworthy” novel, do not establish that every
opinion in the book mirrors Dudley’s. Even if they did, those opinions would
demonstrate a conflict only if they were so extreme as to somehow establish a
reasonable possibility Dudley would be unable to exercise her discretion fairly.
As the trial court could reasonably conclude, they are not.
Moreover, the Court of Appeal misinterpreted the views of Dudley’s
fictional alter ego. The court highlighted the following statement by Danner: “[I]t
was well known throughout the legal community that a negative outcome on these
kinds of [rape] cases had a trickle-down effect, resulting in other potential
assailants believing if they preyed upon an intoxicated victim, they could get away
12
with rape.” (Intoxicating Agent, supra, at p. 68.) From this, the Court of Appeal
concluded Dudley was a conflicted prosecutor who somehow might be less willing
to accept a plea bargain to a lesser charge — a negative outcome, in the Court of
Appeal’s eyes — than some other prosecutor. Putting aside for the moment the
larger point, that the fictional Danner’s views have limited relevance to a decision
whether to recuse Dudley, it is apparent from the novel’s preceding sentence that
the “negative outcome[s]” referred to were “not guilty verdicts, or even hung
juries.”11 A prosecutor interested in protecting the interests of the community as a
whole might well factor in, in deciding whether to try a particularly difficult case,
what impact a verdict short of guilty might have on the safety and well-being of
that community. Nothing in the fictional character’s views suggests an
unwillingness to offer or accept a plea bargain that might otherwise be warranted.
To the contrary, the fictional Danner recognized the need to “go through all the
evidence, critically, for the [victim’s] sake, as well as for the rest of the
community, and if [she] didn’t feel she could prove this defendant’s guilt to the
standard of ‘beyond a reasonable doubt,’ she’d have a duty to accept [defense
counsel’s] offer” to plead guilty only to sexual battery. (Intoxicating Agent,
supra, at p. 68.)
The trial court’s role, and the Court of Appeal’s and ours, is to examine the
record for evidence of a disqualifying conflict, not to act as literary critic. That a
11
The passage reads: “Jordon [Danner] knew getting a guilty verdict in this
case could have a positive effect on [the victim’s] healing process. Conversely,
Jordon had seen not guilty verdicts, or even hung juries, re-traumatize victims.
Beyond that, it 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.” (Intoxicating Agent, supra, at p. 68.)
13
prosecutor may pursue an independent writing career does not alone create a
conflict with the public interest and disqualify her from future prosecutions, absent
proof her writings create a material conflict in a particular case. Here, on the
record before it, the trial court permissibly could conclude there was none.12
In this court, Haraguchi relies on these same grounds in asserting a conflict:
that Dudley wrote a book (conceded) related to his own case (contradicted by the
trial court’s findings); that the Santa Barbara County District Attorney’s Office
was portrayed and, as suggested by the acknowledgements, involved in the book’s
preparation (not alone a basis for a conflict); that Intoxicating Agent gave a one-
sided view of the criminal justice system (likewise not alone a basis for a conflict);
and that the release of the book to coincide with Haraguchi’s trial gave Dudley an
incentive to handle that trial differently (contradicted by the trial court’s findings).
While it certainly would not have been an abuse of discretion for the trial court to
conclude that Dudley’s authorship and promotion of Intoxicating Agent created a
reasonable possibility she might handle the discretionary duties of her office
differently in Haraguchi’s case, neither was it an abuse of discretion to conclude,
12
We note as well that under the Court of Appeal’s view that an
author/attorney may be recused from a case on account of the views of her
characters, any “conflict” as such would apply broadly to all cases the author
might prosecute and logically would require blanket recusal. We need not
conclude that fictional writings could never create such a conflict in order to
observe that recusal on such a basis would require evidence of views of the justice
system so extreme they rendered the author/attorney effectively categorically unfit
to prosecute. Needless to say, neither the trial court nor we find in Intoxicating
Agent evidence of such views. To the extent the Court of Appeal’s decision
sought to limit any implication that recusal here would have necessitated recusal
everywhere, based on the view that recusal here was proper in part because
Haraguchi’s case was similar to or related to the one in the book, the Court of
Appeal again disregarded the trial court’s finding that it was not.
14
as the trial court did here, that there was no conflict.13 Explicitly part of the trial
court’s ruling was an assessment that this book was sufficiently low profile, and
Haraguchi’s case sufficiently low profile, that the book’s publication would not
affect Dudley’s judgment and exercise of discretion in prosecuting Haraguchi.
B. Gravity of Any Conflict
Out of an appropriate abundance of caution, the trial court also considered
the second half of the recusal test — whether any conflict was so grave it would
render a fair trial unlikely (§ 1424, subd. (a)(1)) — and concluded Haraguchi had
failed to establish this element as well: “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 Mr. Haraguchi’s case that
he would be unlikely to receive a fair trial.”
Substantial evidence supports the trial court’s conclusion that the publicity
attending Intoxicating Agent was not so great as to render a fair trial unlikely.
Haraguchi submitted evidence of only a smattering of local public appearances by
Dudley in support of her novel. Essentially self-published,14 the book has not
13
Indeed, were the question presented de novo, we might conclude as the
Court of Appeal did that the publication of a novel created a conflict, that is, a
reasonable possibility that Dudley’s impartial exercise of discretion might be
affected — but that, as the trial court found, the particularities of this novel as it
related to Haraguchi’s case did not create a conflict that rose to the level of a
likelihood or probability that Haraguchi would be treated unfairly. The trial
court’s division of the two parts of the section 1424 test, considering the
particularities of this novel in concluding it did not create a conflict, was
acceptable too and shows that the two parts of the test are to some extent
continuous rather than discrete, as many factors relevant to the overarching inquiry
may be framed in terms of their effect on the existence of a conflict or its gravity.
14
Intoxicating Agent was published by Infinity Publishing, a company that
allows authors to self-publish their writings. According to Infinity Publishing’s
Web site, it charges a one-time setup fee of $499. Infinity then prints and ships
(footnote continued on next page)
15
been widely purchased.15 Even if one were to reach a different conclusion on the
question of conflict, and hold as the Court of Appeal did that Intoxicating Agent’s
publication created at least a reasonable possibility Dudley’s discretionary
decisions might be influenced, the minimal publicity and sales indicate any
financial incentives she might have to act differently are de minimis and do not
establish the likelihood of unfair treatment the statute requires.
In addition, the trial court found any potential taint to the jury pool from the
promulgation of the views in Intoxicating Agent could be handled through a
sequestered voir dire. It proposed that in voir dire, attorneys could inquire
whether prospective jurors were familiar with any of the writings of either the
prosecutor or defense attorney (who it appears had various writings of his own); if
any answered yes, further questioning to deal with any possible bias could be
conducted out of the presence of the rest of the jury pool. This is precisely the sort
of discretionary trial-management decision we vest trial courts with, and the trial
court did not err in concluding this sort of potential prejudice could be dealt with
in that fashion.
In defending its decision to require recusal, the Court of Appeal offered its
view that allowing Dudley to prosecute Haraguchi would be “unseemly.” It
acknowledged that unseemliness alone is not a basis for recusal. Section 1424
(footnote continued from previous page)
the author a hardcopy book within approximately eight weeks of submission and
makes copies available for sale on Infinity’s ecommerce Web site, amazon.com,
borders.com, and other commercial sites. (See <http://www.infinitypublishing.
com/book-publishing-services/book-publishing-services.html> [as of May 12,
2008].)
15
At present, Intoxicating Agent rests at No. 1,552,338 on Amazon.com’s
sales list. (See <www.amazon.com> [as of May 12, 2008].)
16
“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 and integrity of the
criminal justice system.” (People v. Eubanks, supra, 14 Cal.4th at p. 592; see also
People v. Neely, supra, 70 Cal.App.4th at pp. 777-779; People v. McPartland
(1988) 198 Cal.App.3d 569, 574.) Only an actual likelihood of unfair treatment,
not a subjective perception of impropriety, can warrant a court taking the
significant step of recusing an individual prosecutor or prosecutor’s office.
Nevertheless, the Court of Appeal deemed it unseemly that Intoxicating Agent
presents a one-sided view of the criminal justice system and that Dudley would
take advantage of her office for financial gain by using the Santa Barbara County
District Attorney’s Office as the backdrop for her novel. But the first of these
does not, as we have discussed, create any semblance of a conflict, and whatever
one might think of the propriety of the second of these, it likewise does not lead to
a “reasonable possibility” that Dudley would fail to exercise the discretionary
duties of her office in a fair and evenhanded manner. Consequently, whether or
not the Court of Appeal was justified in disapproving Dudley’s perceived misuse
of her office, recusal is not the remedy.
In upholding the trial court’s exercise of discretion, we do not condone
actions that place a prosecutor’s literary career ahead of, or at odds with, her fealty
to the fair and evenhanded pursuit of justice and the community interest. Writers
are often encouraged to “write what they know,” but the prosecutor who follows
that advice in ways that touch on pending matters may compromise her ability to
carry out her duties to represent the People and to seek justice impartially.16 In
16
We do not suggest these perils are unique to prosecutors. Defense counsel,
too, must take great pains to ensure that any literary endeavors do not interfere
(footnote continued on next page)
17
this case, the trial court concluded based on substantial evidence that no such
disabling conflict had arisen. Giving the trial court the deference due its
judgment, we conclude that determination should not have been disturbed.
DISPOSITION
For the foregoing reasons, we reverse the Court of Appeal’s judgment and
remand this case for further proceedings consistent with this opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
(footnote continued from previous page)
with delivery of the effective representation that is essential to our criminal justice
system. (See Maxwell v. Superior Court (1982) 30 Cal.3d 606, 616-617; People v.
Corona (1978) 80 Cal.App.3d 684, 720.)
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Haraguchi v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 143 Cal.App.4th 846
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S148207Date Filed: May 12, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Santa Barbara
Judge: Frank J. Ochoa
__________________________________________________________________________________
Attorneys for Appellant:
Sanger & Swysen, Robert M. Sanger and Stephen K. Dunkle for Petitioner.__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Donald E. de Nicola, Deputy State Solicitor
General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General,
Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Kristofer Jorstad and David F.
Glassman, Deputy Attorneys General; Thomas W. Sneddon, Jr., and Christie Stanley, District Attorneys,
and Gerald McC. Franklin, Deputy District Attorney, for Real Party in Interest.
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 Real Party in
Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert M. SangerSanger & Swysen
233 East Carrillo Street, Suite C
Santa Barbara, CA 93101
(805) 962-4887
David F. Glassman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2355
Gerald McC. Franklin
Deputy District Attorney
1112 Santa Barbara Street
Santa Barbara, CA 93101
(805) 568-2300
Review on the court's own motion after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case presents the following issues: (1) Was the trial court's ruling on a motion for recusal alleging conflict of interest, because the prosecutor had written a novel allegedly based in part on the facts of this case, subject to independent review or reviewable only for an abuse of discretion? (2) Was recusal appropriate under either standard?
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 05/12/2008 | 43 Cal. 4th 706, 182 P.3d 579, 76 Cal. Rptr. 3d 250 | S148207 | Review - Criminal Original (non-H.C.) | closed; remittitur issued |
| 1 | Haraguchi, Massey Harushi (Petitioner) Represented by Robert M. Sanger Attorney at Law 233 E. Carrillo Street, Suite C Santa Barbara, CA |
| 2 | Superior Court Of Santa Barbara County (Respondent) 118 E. Figueroa Street Santa Barbara, CA 93101 |
| 3 | The People (Real Party in Interest) Represented by David F. Glassman Office of the Attorney General 300 S. Spring Street Los Angeles, CA |
| 4 | The People (Real Party in Interest) Represented by Gerald Mcc. Franklin Office of the District Attorney 1114 Santa Barbara Street Santa Barbara, CA |
| 5 | The People (Real Party in Interest) Represented by Thomas W. Sneddon Office of the District Attorney 1112 Santa Barbara Street Santa Barbara, CA |
| Opinion Authors | |
| Opinion | Justice Kathryn M. Werdegar |
| Disposition | |
| May 12 2008 | Opinion: Reversed |
| Dockets | |
| Nov 21 2006 | Case start date (depublication request) |
| Nov 21 2006 | Request for depublication filed (initial case event) counsel for People, Real Party in Interest David Glassman, Deputy AG |
| Dec 1 2006 | Opposition filed from Atty Stephen K. Dunkle counsel for petitioner Massey Haraguchi to The People's request for depublication |
| Dec 4 2006 | Note: Spoke to clerk at the Superior Court. The next court date is scheduled on Monday, December 11 at 8:30 a.m. in Dept. 1. (Readiness/settlement conference) |
| Dec 4 2006 | Time extended to grant or deny review The time for granting review on the court's own motion in the above-entitled matter is hereby extended to and including February 2, 2006. (Cal. Rules of Court, rule 28.2 (c).) |
| Dec 5 2006 | Record requested via overnight mail |
| Dec 7 2006 | Received Court of Appeal record 1-file jacket |
| Dec 7 2006 | Received: letter from Atty Stephen K. Dunkle counsel for petitioner citing new case that supports petitioner's position. |
| Dec 20 2006 | Review granted on court's own motion (criminal case) Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan JJ. |
| Dec 28 2006 | Order filed For purposes of briefing and argument, Real Party in Interest The People of the State of California is designated petitioner to this court and is directed to file a brief on the merits. Answers thereto will be filed by petitioner and respondent. (See rule 8.520, (a)(1), Cal. Rules of Court.) |
| Jan 19 2007 | Opening brief on the merits filed Real Party People Deputy Attorney General David F. Glassman |
| Jan 22 2007 | Opening brief on the merits filed The People, Real Party in Interest Gerald McC. Franklin, Senior Deputy District Attorney (CRC 8.25) |
| Jan 24 2007 | Filed: Motion to Specify an Additional Issue for Review (Rule 8.516) by Robert M. Sanger counsel for petitioner Massy Haraguchi. |
| Jan 25 2007 | Opposition filed The People, Real Party in Interest, opposes Petitioner's motion to expand the issues on review. |
| Jan 26 2007 | Opposition filed Opposition to Motion to Specify Add'l Issue Real Party People Deputy Attorney General David F. Glassman |
| Feb 16 2007 | Answer brief on the merits filed Massey Haqraguchi, Petitioner Robert M. Sanger, counsel. |
| Mar 7 2007 | Reply brief filed (case not yet fully briefed) The People, Real Party in Interest. Gerald McC. Franklin, Senior Deputy District Attorney |
| Mar 7 2007 | Reply brief filed (case fully briefed) The People, Real Party of Interest David F. Glassman, Deputy Attorney General |
| May 2 2007 | Received application to file Amicus Curiae Brief California District Attorneys Association in support of The People, Real Party in Interest. Grover D. Merritt, Lead Deputy District Attorney |
| May 9 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 The People is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 9 2007 | Amicus curiae brief filed California District Attorneys Association in support of The People, real parties in interest. Grover D. Merritt, Lead Deputy District Attorney |
| May 29 2007 | Response to amicus curiae brief filed to AC brief of California District Attorneys' Assn. Petitioner Massey Haraguchi Attorney Stephen K. Dunkle |
| Oct 24 2007 | Received Court of Appeal record Exhibit C to petition (Book: "Intoxicating Agent") |
| Mar 4 2008 | Case ordered on calendar to be argued on Tuesday, April 1, 2008, at 1:30 p.m., in Los Angeles |
| Mar 19 2008 | Filed letter from: David F. Glassman (Deputy Attorney General) and Gerald McC. Franklin (Senior Deputy District Attorney, requesting to divide oral argument for real party in interest The People. Asking 10 minutes for the Office of the District Attorney and 20 minutes for the Office of the Attorney General. |
| Mar 19 2008 | Order filed The request of counsel for the real party in interest in the above-referenced cause to allow two counsel to argue on behalf of real party at oral argument is hereby granted. The request of real party to allocate to the Office of the District Attorney 10 minutes and the Office of the Attorney General 20 minutes of real party's 30-minute allotted time for oral argument is granted. |
| Apr 1 2008 | Order filed The motion filed on January 24, 2007, to specify an additional issue for preview (Rule 8.5126), by counsel Robert Sanger for petitioner Massey Haraguchi is denied. |
| Apr 1 2008 | Cause argued and submitted |
| May 9 2008 | Notice of forthcoming opinion posted |
| May 12 2008 | Opinion filed: Judgment reversed and remanded to the Court of Appeal with directions Majority Opinion by Werdegar, J. Joined by: George, C.J.; Kennard, Baxter, Chin, Moreno, Corrigan, JJ. |
| Jun 12 2008 | Remittitur issued (civil case) |
| Jun 17 2008 | Received: Receipt for Remittitur from the Court of Appeal, Second Appellate District, Div. 6. |
| Briefs | |
| Jan 19 2007 | Opening brief on the merits filed |
| Jan 22 2007 | Opening brief on the merits filed |
| Feb 16 2007 | Answer brief on the merits filed |
| Mar 7 2007 | Reply brief filed (case not yet fully briefed) |
| Mar 7 2007 | Reply brief filed (case fully briefed) |
| May 9 2007 | Amicus curiae brief filed |
| May 29 2007 | Response to amicus curiae brief filed |
| Brief Downloads | |
 | |
| |
| Jul 4, 2011 Annotated by gavriel jacobs | OPINION BY: Werdegar, J. (unanimous)
---------- SEARCH TAGS:recuse, recusal, motion for recusal, deference, appeal, conflict, conflict of interest, novel, book, moonlighting, intoxicating agent, intoxicated victim, publicity, literary, literature, author, abuse of discretion, de novo review, role of the prosecutor, findings of fact, publication ----------
---------- RELATED NEWS ARTICLESAdam Liptak, California Prosecutor’s Novel Gets Her Bumped From a Case , N.Y. Times (Oct. 9, 2006), http://www.nytimes.com/2006/10/09/us/09book.html?pagewanted=print Chris Meagher, Ruling Vindicates S.B. Prosecutors, Judges: Fictional Works Didn’t Create Conflict of Interest, The Santa Barbara Independent (May 15, 2008), http://www.independent.com/news/2008/may/15/fictional-works-didnt-create... ANNOTATION BY: Julia Glick |
