Supreme Court of California Justia
Docket No. S128854
People v. Vasquez


Filed 7/10/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S128854
v.
Ct.App. 2/7 B159379
ANDREW VASQUEZ et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BA200494

Does the erroneous denial of a defendant’s motion to disqualify the
prosecuting district attorney’s office for a conflict of interest (Pen. Code, § 1424)
constitute a deprivation of due process? We conclude that not all erroneous
denials under Penal Code section 1424 result in due process violations; we further
conclude the participation of a conflicted prosecutor in this case did not do so. We
therefore reject defendants’ contention that the Court of Appeal erred in failing to
assess the prejudice flowing from constitutional error. We further conclude that
the trial court’s failure to disqualify the prosecutor in this case, an error under
Penal Code section 1424, was not prejudicial under the standard of People v.
Watson (1956) 46 Cal.2d 818.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants Andrew Vasquez and Anthony Fregoso were charged with the
murder of Armando Ayala, with allegations Vasquez personally used a knife and
Fregoso personally used a baseball bat in the crime. (Pen. Code, §§ 187, 12022,
1



subd. (b)(1).)1 After a joint trial, both defendants were found guilty of second
degree murder, the use allegations were found true, and they were each sentenced
to 16 years to life in prison.
The facts of the offense are not important to the issues we address here. As
summarized by the Court of Appeal (neither party disputes the lower court’s
accuracy), the trial testimony showed, in brief, the following: Defendants and the
victim belonged to rival “tagging crews.” On the day before the offense, Ayala
(the victim) and two other young men hit, kicked, and sprayed a young woman in
the face with mace, warning her against interfering with their crew. The young
woman told Fregoso of the attack, and the next day, apparently in retaliation,
defendants approached Ayala near the entrance to Fairfax High School. As
Fregoso positioned himself in front of Ayala, Vasquez approached him diagonally
from behind, holding something (some witnesses saw a knife) in his hand.
Warned by a friend, Ayala turned and sprayed pepper spray as Vasquez, with a
side-arm motion, stabbed him in the chest with a knife. The wound, which
severed an artery and penetrated Ayala’s lung, was fatal.
The motion to disqualify the district attorney’s office arose from the family
relationship between defendant Vasquez and two employees of the Los Angeles
County District Attorney (LACDA). According to Vasquez’s trial counsel, and
undisputed by the People, Vasquez’s mother had been, at the time of trial, an
administrator in the LACDA’s office for about 13 years. Her husband, Vasquez’s
stepfather, had been employed for about the same period as a deputy district
attorney. After the Attorney General refused the LACDA’s request that he assume
prosecutorial duties, the LACDA assigned Deputy District Attorney Patricia

1
All unspecified statutory references are to the Penal Code.
2



Wilkinson to prosecute the case. Wilkinson declared she did not know Vasquez’s
mother or stepfather, though according to defense counsel the mother recalled
once having discussed shoe shopping with Wilkinson.
Defendants, through counsel, indicated to Prosecutor Wilkinson their
willingness to waive a jury trial and have the charges adjudicated by the assigned
trial judge, the Honorable Norman Shapiro. Wilkinson, according to Vasquez’s
attorney, declined even to raise the possibility with her superiors, giving a reason
that prompted Vasquez’s attorney to make an oral recusal motion under section
1424, which counsel for Fregoso joined. According to defense counsel, Wilkinson
said she “didn’t want to do anything that could make it look like there had been
any kind of favor toward Mr. Vasquez because of his father being . . . in the
district attorney’s office.” This, defense counsel suggested, constituted evidence
that Vasquez was “being treated differently because of who his father is.” While
the prosecutor had no obligation to waive a jury trial, counsel argued, Wilkinson’s
response indicated the LACDA’s concern that it might appear to be showing
favoritism toward Vasquez had created an “extra layer” of analysis in the office’s
decisionmaking about Vasquez, one that would not be present if a different office
prosecuted the case.
In response, Prosecutor Wilkinson gave three reasons she decided not to
waive a jury: she “felt a jury just wouldn’t have any difficulty with the evidence”;
Judge Shapiro was himself a former member of the LACDA’s office and
Wilkinson “did not wish to put [the trial] court in a position of having its integrity
questioned” in the event of a prodefense ruling; and, the victim’s family having
been upset because of changes in LACDA staffing on the case and having
conveyed concerns “that perhaps we were not pursuing things,” Wilkinson
“wanted to insure that there was no appearance of any impropriety on the part of
our office in handling this.”
3

The trial court denied the recusal motion on the ground the prosecutor had
given “an adequate reason” for declining to waive a jury trial, to wit, that “based
on the court’s long experience as a prosecutor and with this particular office,” it
would be unwise to try this case to the court.
The case was then tried to a jury, which was unable to reach a verdict.
According to defense counsel’s discussion with the jurors after the trial court
declared a mistrial, two jurors had voted for a verdict of first degree murder, six
for second degree murder, three for voluntary manslaughter, and one for acquittal.
The matter was assigned to the Honorable Larry Fidler for retrial.
Defendants renewed their recusal motion, this time in written form relying on
section 1424 and defendants’ due process rights under the United States and
California Constitutions. The motion again relied on the prosecutor’s fear of
apparent favoritism as a reason for declining to try the case to Judge Shapiro, as
well as on three additional factual circumstances. First, after the mistrial, the
prosecutor had refused to accept pleas to voluntary manslaughter, continuing
instead to demand pleas to at least second degree murder, and “is still charging
ahead with her assassination [first degree murder] theory.” Second, at the first
trial, “the case became a cause celebre with numerous deputy district attorneys
hanging around the courtroom.” Counsel amplified the latter point at the motion
hearing, stating that “this case has a lot of intensity because of the fact of who Mr.
Vasquez’s father is, and . . . the atmosphere was electric, it was very intense and it
was very uncomfortable.” Finally, the defense planned to call Vasquez’s
stepfather as a witness at the retrial; he would testify Vasquez habitually carried a
pocketknife.
Prosecutor Wilkinson responded that it was Judge Shapiro’s prior
relationship with the LACDA’s office and the undesirability of putting him in a
position “of having his decision perhaps questioned” that had led her to decline a
4

court trial before him, though she also referred separately to “avoid[ing] the
appearance of impropriety,” without specifying whether her reference was to an
appearance on the part of Judge Shapiro or the LACDA. With regard to the plea
offer, Wilkinson stated she believed the facts of the case supported first degree
murder on a theory of premeditation or lying in wait and did not show provocation
so as to support a voluntary manslaughter verdict. She was willing, as her office
had always been, to accept pleas of second degree murder.
The trial court denied the renewed motion to recuse, reasoning that the
stepfather’s potential role as a witness was not grounds for disqualifying the entire
LACDA office and Wilkinson’s refusal to waive a jury before Judge Shapiro was
based on the identity of the trial judge, not the family relationship between
Vasquez and LACDA employees. For these reasons, the court found, defendants
had not met their burden under section 1424 of showing a likelihood of unfair
treatment.
The case was tried to dual juries, which convicted defendants of second
degree murder. The Court of Appeal affirmed, holding the recusal motion should
have been granted but defendants, on appeal, had failed to show prejudice from
the error. The appellate court found Vasquez’s family relationship with LACDA
employees had caused a conflict of interest for that office, a conflict sufficiently
severe as to indicate a likelihood defendants would not receive fair treatment at all
stages of the criminal proceedings. (§ 1424; People v. Eubanks (1996) 14 Cal.4th
580, 593-594.) Both the existence of a conflict and its severity were evidenced by
the prosecutor’s admission that concerns over appearing to favor Vasquez had
motivated, at least in part, her decision not to waive a jury trial, and by the
prosecutor’s refusal after the first jury hung to offer a plea less than second degree
murder. The record showed pressure from the victim’s family “created the
5

potential for unfairness in this case where the prosecutor felt an obligation to treat
Vasquez more harshly in order to avoid a charge of favoritism.”
In light of its view of the conflict, the Court of Appeal observed, it would
have granted defendants relief from the erroneous recusal denial had they sought
relief before trial by filing a petition for a writ of mandate based solely on the
likelihood of unfair treatment. But on appeal, the court held, defendants were
entitled to reversal only if they could show the error caused “actual harm” in the
form of a “probability (versus possibility)” of a different result had a
nonconflicted attorney prosecuted the case. Defendants could not do so: Because
the jury hung in the first trial, no prejudice resulted from the prosecutor’s refusal
to try the case to Judge Shapiro, and the prosecutor’s offer of a plea to second
degree murder was fair, if not as favorable as an offer of voluntary manslaughter;
further, whether a nonconflicted prosecutor would have made defendants a
manslaughter offer is “necessarily speculative.” The Court of Appeal did not
discuss whether the trial court’s failure to recuse the LACDA required reversal on
the ground it deprived defendants of due process.
We granted defendants’ petitions for review.
DISCUSSION
I. The Trial Court Erred Under Section 1424 in Denying the
Recusal Motion
We agree with the Court of Appeal that the close family relationship
between longtime employees of the LACDA and defendant Vasquez created a
conflict of interest and a consequential likelihood of unfair treatment that should
have been avoided through recusal of the prosecutorial office. The assigned
deputy district attorney admitted, both to defense counsel and at the first recusal
motion hearing, that concerns about an appearance to the victim’s family of
favoritism by the LACDA’s office had in part influenced her to reject the defense
6

proposal for a bench trial before Judge Shapiro. This admission of an extrinsic
influence over the prosecutor’s discretionary decisionmaking showed both the
conflict’s existence―i.e., that because of the family relationship there was a
“reasonable possibility that the DA’s office may not exercise its discretionary
function in an evenhanded manner”―and that its severity required the LACDA be
disqualified―i.e., that the conflict was “so grave as to render it unlikely that
defendant will receive fair treatment during all portions of the criminal
proceedings.” (People v. Conner (1983) 34 Cal.3d 141, 148; see People v.
Eubanks, supra, 14 Cal.4th at p. 594 (Eubanks).)
As we explained at length in Eubanks, public prosecutors in California are
required to exercise their discretionary functions, which are broad in scope and
subject to only limited review, “ ‘with the highest degree of integrity and
impartiality.’ ” (Eubanks, supra, 14 Cal.4th at p. 589, quoting People v. Superior
Court (Greer) (1977) 19 Cal.3d 255, 267.) Impartiality, in this context, means not
that the prosecutor is indifferent to the conviction or acquittal of the
defendant―the prosecutor does not share in the neutrality expected of the judge
and jury―but that the prosecutor is “expected to exercise his or her discretionary
functions in the interests of the People at large, and not under the influence or
control of an interested individual.” (Eubanks, at p. 590.) The public prosecutor’s
proper interest “ ‘ “is not that it shall win a case, but that justice shall be done.” ’ ”
(Id. at p. 589.)
In section 1424, the Legislature established a substantive test for a motion
to disqualify the district attorney: “The 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.” The statute demands a showing of a real,
not merely apparent, potential for unfair treatment, and further requires that that
potential “rise to the level of a likelihood of unfairness.” (Eubanks, supra, 14
7

Cal.4th at p. 592.) Although the statute refers to a “fair trial,” we have recognized
that many of the prosecutor’s critical discretionary choices are made before or
after trial and have hence interpreted section 1424 as requiring recusal on a
showing of a conflict of interest “ ‘so grave as to render it unlikely that defendant
will receive fair treatment during all portions of the criminal proceedings.’ ”
(Eubanks, at p. 593, quoting People v. Conner, supra, 34 Cal.3d at p. 148.)
On review of the trial court’s denial of a recusal motion, “[o]ur role is to
determine whether there is substantial evidence to support the [trial court’s
factual] findings [citation], and, based on those findings, whether the trial court
abused its discretion in denying the motion.” (People v. Breaux (1991) 1 Cal.4th
281, 293-294; accord, Eubanks, supra, 14 Cal.4th at p. 594.) Here, the trial court
found Deputy District Attorney Wilkinson had declined the defense offer of a
bench trial before Judge Shapiro because of “the problems attendant with his
[Judge Shapiro’s] past position,” rather than “because of who the defendant is, vis-
à-vis his stepfather and his mother.” This finding is not supported by substantial
evidence.
At the first recusal motion hearing, Vasquez’s attorney represented to the
court that Wilkinson had told him she was not interested in waiving a jury because
“she didn’t want to do anything that could make it look like there had been any
kind of favor toward Mr. Vasquez because of his father being . . . in the District
Attorney’s office.” Wilkinson did not contradict this aspect of defense counsel’s
account of their conversation. In describing her motives, she said she was
concerned about possible criticism of Judge Shapiro should he rule for the
defense, but continued, “And, also, I wanted to insure that there was no
appearance of impropriety on the part of our office in handling this.”
At the second hearing, defense counsel repeated his representation that
Wilkinson had told him “she decided not to do that [waive a jury] because she said
8

it might have the appearance of an impropriety that they’re giving Mr. Vasquez
some kind of a break . . . .” Again, Wilkinson did not deny she had made such a
statement, stating only that she had put on the record before Judge Shapiro “that in
light of the judge’s prior relationship with the office I felt that it will be best not to
waive jury to him to avoid the appearance of impropriety and also I did not wish to
put him in that position of making a decision and ultimately having his decision
perhaps questioned.”
Before the trial court was thus defense counsel’s uncontradicted
representation that Deputy District Attorney Wilkinson had told counsel she was
reluctant to waive a jury before Judge Shapiro because it could be seen as
favoritism by the LACDA toward Vasquez motivated by his close family
relationship with LACDA employees. While Wilkinson also cited concerns about
possible criticism of Judge Shapiro, she confirmed that with the victim’s family
expressing the view “that perhaps we were not pursuing things,” she “wanted to
insure that there was no appearance of any impropriety on the part of our office in
handling this.” On this record, the trial court’s apparent finding that Wilkinson
was motivated only by the desire to prevent possible criticism of Judge Shapiro,
and not also by an appearance of favoritism toward Vasquez by the LACDA, was
unsupported by substantial evidence.
Examining the trial court’s decision to deny recusal in this factual light, we
conclude the court abused its discretion. In most circumstances, the fact one or
two employees of a large district attorney’s office2 have a personal interest in a

2
According to the LACDA Web site, the office has a staff “of approximately
1,962 includ[ing] 948 deputy district attorneys, 239 investigators, and 775 support
personnel, comprising the largest local prosecutorial agency in the nation.”
(<http://da.co.la.ca.us/> [as of July 10, 2006].)
9



case would not warrant disqualifying the entire office. (See Millsap v. Superior
Court (1999) 70 Cal.App.4th 196, 200-204; Trujillo v. Superior Court (1983) 148
Cal.App.3d 368, 370-373.) But where the record on the recusal motion indicates
that the conduct of any deputy district attorney assigned to the case, or of the
office as a whole, would likely be influenced by the personal interest of the district
attorney or an employee, the motion is properly granted. (See People v. Conner,
supra, 34 Cal.3d at pp. 148-149 [recusal of entire office proper where deputy
district attorney witnessed the defendant’s violent courthouse escape and assault
on a deputy sheriff, a “harrowing experience” he discussed with coworkers];
People v. Choi (2000) 80 Cal.App.4th 476, 480-483 [same where district attorney
with indirect personal connection to charged murder continued to involve himself
in the proceedings despite “ethical wall” established within his office].)
In the present case, Deputy District Attorney Wilkinson had no personal
interest in the case, but two other employees of the LACDA, Vasquez’s mother
and stepfather, did. That personal interest, by raising the concern that acceding to
a defense request would be perceived by the victim’s family as favoritism to
Vasquez, influenced Wilkinson’s decision not to accept a defense proposal for a
bench trial. The admitted role Vasquez’s family relationship with LACDA
employees played in influencing the prosecutor’s conduct of the case
demonstrated a likelihood defendants would not be treated fairly by the LACDA at
all stages of the criminal proceedings, requiring the office’s recusal. (Eubanks,
supra, 14 Cal.4th at pp. 593-594.)3

3
Other circumstances the defense relied on in the trial court as evidence of a
disabling conflict are less compelling. That the defense intended to call Vasquez’s
stepfather, a deputy district attorney with the LACDA’s office, as a witness did
not itself require the office’s disqualification. (See People v. Snow (2003) 30
Cal.4th 43, 86-87.) That several deputy district attorneys attended the trial at

(footnote continued on next page)
10



Although defendant Fregoso did not have a family relationship to LACDA
employees, we assume, without deciding, that the influence of Vasquez’s family
relationship on the prosecutor’s decision not to waive a jury trial provided
codefendant Fregoso with an equivalent justification to seek recusal of the
LACDA. The Attorney General does not assert that on this record any basis exists
to distinguish between defendants in this regard.
II. Defendants Fail to Show a Due Process Violation
Defendants contend the failure to disqualify the LACDA’s office was a
violation not only of section 1424 but also of their federal and state due process
rights (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15) and that such
a constitutional violation is a structural error admitting of no harmless error
analysis. We conclude the error was not of constitutional dimension and therefore
do not reach the question of prejudice from a constitutional violation.
Defendants argue, first, that section 1424 merely provides a procedural
framework for adjudicating the constitutional question, not a separate substantive

(footnote continued from previous page)
times, making the atmosphere “intense” and “uncomfortable,” does not
demonstrate a likelihood of unfair treatment.

Finally, unlike the Court of Appeal, we are not persuaded the prosecutor’s
unwillingness to accept a plea to voluntary manslaughter, after the jury deadlocked
in the first trial, shows a disabling conflict. From brief postmistrial discussion,
Deputy District Attorney Wilkinson stated, she understood the jury had
deadlocked nine to three in favor of first degree murder. Even according to
defense counsel’s count, eight of the 12 deadlocked jurors had voted for murder.
The prosecutor had witnesses who could provide both a preexisting motive
(retaliation for Ayala’s recent assault on a young woman associated with Vasquez
and Fregoso’s tagging crew) and evidence of preparation for a serious assault or
killing (Vasquez’s approaching the victim with a knife in hand). Under these
circumstances, we are not convinced the prosecutor’s decision to continue
demanding pleas of at least second degree murder reflects any unusual or improper
consideration.
11



standard for deciding whether a prosecutor’s continued participation is
impermissible. We disagree. As we have previously explained (see Eubanks,
supra, 14 Cal.4th at p. 591; People v. Conner, supra, 34 Cal.3d at p. 147), section
1424 was enacted in part to refine the standard for pretrial recusal this court had
articulated in People v. Superior Court (Greer), supra, 19 Cal.3d 255 (Greer). In
Greer, we held the trial court had the statutory authority under Code of Civil
Procedure section 128 to disqualify the prosecuting attorney. (Greer, at p. 261, fn.
4.) The recusal standard we stated was any conflict of interest that “might affect
or appear to affect” the prosecutor’s impartiality. (Id. at p. 269, italics added.)
Responding to an increase in the number of recusals, which the Attorney General
attributed in part to Greer’s “appearance” standard, the Legislature made clear in
Penal Code section 1424 that a conflict of interest, whether actual or apparent,
required recusal under our statutory law only if it bore an actual likelihood of
leading to unfair treatment. (Eubanks, at pp. 591-592.) In addition to providing
for procedures by which the motion for recusal was to be made and answered,
section 1424 established substantive requirements for a motion to disqualify the
district attorney. (Eubanks, at p. 591.)
We disagree, as well, with the suggestion that under the actual likelihood
standard every erroneous denial of a recusal motion under section 1424 is also a
deprivation of due process. In Greer, while considering the scope of the trial
court’s authority against the “background” of “the due process implications of
prosecutorial bias” (Greer, supra, 19 Cal.3d at p. 268), we expressly rejected the
notion that “before he recuses a prosecutor, the trial judge must first determine that
failure to do so would permit a violation of the defendant’s basic constitutional
rights” (id. at p. 264). Rather, the goal of pretrial recusal is to avoid conflicts that
might lead ultimately to due process violations and hence to reversals or mistrials.
The constitutional guarantees of a fair trial, we explained in Greer, “would seem
12

better served when judges have discretion to prevent even the possibility of their
violation. Individual instances of unfairness, although they may not separately
achieve constitutional dimension, might well cumulate and render the entire
proceeding constitutionally invalid. The trial judge need not delay until the last
straw of prejudice is added, by which time it might be too late to avert a mistrial or
a reversal.” (Id. at pp. 264-265.)
Even under the somewhat narrower standard the Legislature created in
section 1424, pretrial recusal still fulfills the prophylactic function we identified in
Greer. Though no longer including circumstances where a conflict only appears
to affect the prosecutor’s impartiality, trial courts’ statutory power under section
1424 continues to allow recusal whenever a conflict creates a likelihood of unfair
treatment. This standard serves to prevent potential constitutional violations from
occurring. Thus, the failure to recuse when required under section 1424 may lead
to the denial of a fair trial or other unfair treatment, but does not necessarily do so.
Neither this court nor the United States Supreme Court has delineated the
limitations due process places on prosecutorial conflicts of interest.4 In Greer, as
noted, we treated the due process problem of an interested prosecutor as
“background.” (Greer, supra, 19 Cal.3d at p. 268.) We observed that a “fair and
impartial trial” is fundamental to due process and that the prosecutor, as well as
the court, must “respect this mandate” by exercising his or her discretionary
powers impartially (id. at p. 266), but we did not define the types or severity of
interestedness that would violate the constitutional mandate. Similarly, in

4
We have repeatedly refrained from assuming that section 1424’s
substantive standard is identical to, or different from, constitutional commands.
(People v. Snow, supra, 30 Cal.4th at p. 86, fn. 12; Hambarian v. Superior Court
(2002) 27 Cal.4th 826, 833, fn. 4; Eubanks, supra, 14 Cal.4th at p. 596, fn. 8.)
13



Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 249-250, the federal high court
observed that “[p]rosecutors are also public officials; they too must serve the
public interest” and that consequently “[a] scheme injecting a personal interest,
financial or otherwise, into the enforcement process may bring irrelevant or
impermissible factors into the prosecutorial decision and in some contexts raise
serious constitutional questions.” In the case before it, however, the court found it
unnecessary to say “with precision what limits there may be on a financial or
personal interest of one who performs a prosecutorial function, for here the
influence alleged to impose bias [an institutional financial interest in increased
enforcement] is exceptionally remote.” (Id. at p. 250, fn. omitted.)
The Supreme Court gave the problem of an interested prosecutor further
attention in Young v. U. S. ex rel. Vuitton et Fils S. A. (1987) 481 U.S. 787, 790
(Vuitton), holding improper a district court’s appointment, to prosecute a criminal
contempt for violations of an injunction against trademark infringement, of
attorneys who also represented the trademark holder. Special criminal contempt
prosecutors, like United States Attorneys, should have an undivided duty to see
justice done. (Id. at pp. 803-804.) The interest of the government in
“dispassionate assessment of the propriety of criminal charges for affronts to the
Judiciary” is not necessarily congruent with the private client’s interest in the
monetary benefits of enforcing the court’s injunction. (Id. at p. 805.) Because of
the attorneys’ ethical duties to their private client, moreover, the conflict was
unusually manifest: while ordinarily “we can only speculate whether other
interests are likely to influence an enforcement officer,” where a prosecutor also
represents an interested private party, “the ethics of the legal profession require
that an interest other than the Government’s be taken into account.” (Id. at
p. 807.)
14

Defendants’ reliance on Vuitton for the proposition that participation of an
interested prosecutor universally or generally infringes due process suffers from a
fatal flaw: Vuitton was decided not on constitutional grounds but under the United
States Supreme Court’s supervisory powers over the lower federal courts.
(Vuitton, supra, 481 U.S. at pp. 790, 809.) Only Justice Blackmun, in a
concurring opinion, wrote that “the practice―federal or state―of appointing an
interested party’s counsel to prosecute for criminal contempt is a violation of due
process.” (Id. at pp. 814-815 (conc. opn. of Blackmun, J.).) Vuitton stands as an
example of how external influences might affect discretionary prosecutorial
decisionmaking, but does not establish a due process test for prosecutorial
conflicts.
Several lower federal courts and courts of our sister states have squarely
addressed prosecutorial conflicts as a due process problem. The most influential
decision has been Ganger v. Payton (4th Cir. 1967) 379 F.2d 709 (Ganger), which
like Vuitton involved a prosecutor’s simultaneous representation of a private party
with an interest in the criminal case. The Ganger court found Ganger’s Virginia
assault conviction constitutionally invalid because the prosecuting attorney had
simultaneously “represented Ganger’s wife in the prosecution of a divorce action
. . . based upon the same alleged assault on Mrs. Ganger. Ganger testified that the
prosecuting attorney offered to drop the assault charge if Ganger would make a
favorable property settlement in the divorce action.” (Id. at p. 711.) The
prosecutor’s self-interest (“including the possibility that the size of his fee would
be determined by what could be exacted from defendant”) thus made it impossible
for him to exercise “fairminded judgment” with regard to whether and how to
prosecute Ganger criminally. (Id. at p. 713.) “We think the conduct of this
prosecuting attorney in attempting at once to serve two masters, the people of the
Commonwealth and the wife of Ganger, violates the requirement of fundamental
15

fairness assured by the Due Process Clause of the Fourteenth Amendment.” (Id. at
p. 714.)
A number of courts have followed Ganger in holding a prosecutor’s
simultaneous representation of an interested private party infringes the defendant’s
right to a fundamentally fair trial. In Cantrell v. Commonwealth (Va. 1985) 329
S.E.2d 22, for example, the murder victim’s parents hired a private attorney to
assist the public prosecutor in trying the victim’s husband for her killing.
Although the public prosecutor was present throughout the trial, the private
attorney took the lead, examining most of the witnesses and making the closing
argument. The same private attorney represented the parents in a civil proceeding
in which they sought custody of the defendant and the victim’s child. (Id. at pp.
24-25.) The appellate court held the likelihood of conflict between the attorney’s
two interests “rises to the level of an overwhelming probability,” substituting
“private vengeance [for] impartial application of the criminal law” in violation of
the defendant’s due process rights. (Id. at p. 26.)
More recently, the court in State v. Eldridge (Tenn.Crim.App. 1997) 951
S.W.2d 775, 782, also found a due process violation in the participation of
“special prosecutors who represent the victim in a civil matter arising from the
same incident giving rise to the criminal prosecution.” The potential for influence
on the prosecution by a private interest is simply too great in situations involving
such simultaneous representation: “Just as a special prosecutor may be tempted to
bring a tenuously supported prosecution if such a reward promises financial or
legal rewards for the private client, a special prosecutor may also be tempted to
suggest the abandonment of a meritorious prosecution if a settlement providing
16

benefits to the private client is conditioned on a recommendation against criminal
charges.” (Id. at p. 781.)5
In contrast to these cases involving simultaneous representation of directly
conflicting interests, a number of courts have declined to find a due process
violation where the prosecutor is alleged merely to have a personal interest that
might add to his or her zeal. Thus, in Wright v. United States (2d Cir. 1984) 732
F.2d 1048 (Wright), the defendant asserted the assigned Assistant United States
Attorney (Puccio) had a disabling conflict of interest because his wife (whom he
met and married while investigating the defendant) was a political opponent of the
defendant, had urged authorities to investigate him, and had allegedly been
assaulted, on another occasion, by the defendant’s associates. (Id. at p. 1055.)
The Wright court found an appearance of impropriety, but no due process
violation, in assignment of the case to Puccio. (Wright, supra, 732 F.2d at
pp. 1055, 1057-1058.) The court distinguished Ganger both as to the role of the
interested prosecutor and the nature of his interest. First, the investigation and
prosecution were initiated not by Puccio but by the United States Attorney.
“Second, even if we interpret the facts most adversely to Wright’s prosecutors,
they were not utilizing the criminal process to advance their own pecuniary

5
See also State v. Cox (La. 1964) 167 So.2d 352, 358 (failure to recuse
district attorney who was the victim in a closely related charged crime deprived
the defendant of a “fair and impartial trial”); People v. Zimmer (1980) 51 N.Y.2d
390, 395 [414 N.E.2d 705, 708, 434 N.Y.S.2d 206] (where the public prosecutor
who procured indictment against a corporation’s founder and principal owner was
also corporate counsel, prosecutor was “serv[ing] two masters[,] . . . a problem
instinct with due process implications”). Cases of successive representation, in
which an attorney who has represented the defendant joins the prosecutor’s office
and appears against the defendant in the same matter, have also been held to
violate fundamental fairness. (See, e.g., Young v. State (Fl.Dist.Ct.App. 1965) 177
So.2d 345, 347; Davenport v. State (Ga.Ct.App. 1981) 278 S.E.2d 440, 441.)
17



interests, such as the prosecutor’s interest in Ganger ‘that the size of his fee would
be determined by what could be exacted from defendant’ in the divorce case,
[Ganger, supra, 379 F.2d] at 713. . . . Mrs. Puccio’s interest, unlike Mrs.
Ganger’s, was not a pecuniary interest in utilizing the criminal process to further
her position in civil litigation but a public one in the condemnation of a man
whom she thought, whether for good reasons or for bad, to have violated the
public trust. [Citation.] In short, this case, with the facts taken at their worst
against the Government, does not present the spectacle of a prosecutor’s using the
‘awful instruments of the criminal law’ [citation] for purpose of private gain and,
although we consider the choice of Puccio as prosecutor to have been ill advised,
we do not regard it as having deprived Wright of due process of law.” (Wright, at
pp. 1057-1058.)6
That personal influences on a prosecutor are not always regarded as
creating so substantial a conflict as to deprive the defendant of fundamental
fairness is not surprising. District attorneys, as people, inevitably hold individual
personal values and allegiances and feel varying emotions relating to their work.
As public officeholders, they may also have political ambitions or apprehensions.
But that a public prosecutor might feel unusually strongly about a particular

6
See also United States v. Heldt (D.C. Cir. 1981) 668 F.2d 1238, 1276-1278
(fact that the defendants had sued prosecutors in a civil action arising out of
searches did not demonstrate due process violation requiring reversal on appeal
where the defendants had not sought recusal on this basis in the trial court and no
evidence indicated conflict had influenced course of criminal action); Villalpando
v. Reagan
(Ariz.Ct.App. 2005) 121 P.3d 172, 176-178 (where conflicted city
prosecutor had recused himself and recommended neighboring city’s prosecutor
be appointed to prosecute, speculation that nomination was based on some
influence conflicted prosecutor had over substitute prosecutor held insufficient to
show due process violation).
18



prosecution or, inversely, might hesitate to commit to a prosecution for personal or
political reasons does not inevitably indicate an actual conflict of interest, much
less a constitutional bar to prosecution. (See Schumer v. Holtzman (1983) 60
N.Y.2d 46, 56 [454 N.E.2d 522, 467 N.Y.S.2d 182] [district attorney’s “anxiety”
over an appearance of impropriety, arising from her past political differences with
the defendant, not grounds for disqualification]; People v. Nelson (N.Y.Crim.Ct.
1995) 167 Misc.2d 665, 672-674 [647 N.Y.S.2d 438, 443] [neither district
attorney’s actions in urging federal prosecution after earlier state acquittal in high
profile case, nor effect of prior acquittal on his possible political ambitions, shows
existence of a conflict that would disqualify district attorney from prosecuting the
defendant on new, unrelated charges].)
Even as regards judicial disqualification, the United States Supreme Court
has distinguished between “matters of kinship [and] personal bias,” which “seem
generally to be matters merely of legislative discretion,” and a judge’s “direct,
personal, substantial pecuniary interest in reaching a conclusion against” a
defendant, which deprives the defendant of due process. (Tumey v. Ohio (1927)
273 U.S. 510, 523; accord, Haas v. County of San Bernardino (2002) 27 Cal.4th
1017, 1025.) In Aetna Life Ins. Co. v. Lavoie (1986) 475 U.S. 813, 820, for
example, the federal high court held a state supreme court justice’s “general
hostility towards insurance companies that were dilatory in paying claims,” arising
out of the justice’s personal experience, did not, as a constitutional matter,
preclude the justice from sitting in a case involving bad faith failure to pay claims.
Such general frustration did not reveal a disqualifying bias, as “it is likely that
many claimants have developed hostile feelings from the frustration in awaiting
settlement of insurance claims.” (Id. at p. 821.) In contrast, the justice’s
simultaneous participation as a plaintiff in a different bad faith suit gave him a
“ ‘direct, personal, substantial, [and] pecuniary’ ” stake in the outcome of the case
19

before the state supreme court (id. at p. 824), violating the insurer litigant’s due
process rights (id. at p. 825).
The Supreme Court’s postulate that pecuniary conflicts of interest on a
judge’s or prosecutor’s part pose a constitutionally more significant threat to a fair
trial than do personal conflicts of interest may be somewhat counterintuitive, for
common experience tells us that personal influences are often the strongest. But
according “matters of kinship [and] personal bias” (Tumey v. Ohio, supra, 273
U.S. at p. 523) dispositive constitutional importance in this context would import
into constitutional law a set of difficult line-drawing problems. As neither judges
nor prosecutors can completely avoid personal influences on their decisions, to
constitutionalize the myriad distinctions and judgments involved in identifying
those personal connections that require a judge’s or prosecutor’s recusal might be
unwise, if not impossible. The high court’s approach to judicial conflicts
generally leaves that line-drawing process to state disqualification and disciplinary
law, with “only the most extreme of cases” being recognized as constitutional
violations. (Aetna Life Ins. Co. v. Lavoie, supra, 475 U.S. at p. 821.)
To show a due process violation arising from a prosecutor’s conflicting
interest should be more difficult than from a judge’s, for the “rigid requirements”
of adjudicative neutrality (Marshall v. Jerrico, Inc., supra, 446 U.S. at p. 248),
articulated in Tumey v. Ohio, supra, 273 U.S. 510, and other cases, do not apply to
prosecutors. “[T]he strict requirements of neutrality cannot be the same for
administrative prosecutors as for judges, whose duty it is to make the final
decision and whose impartiality serves as the ultimate guarantee of a fair and
meaningful proceeding in our constitutional regime.” (Marshall v. Jerrico, Inc., at
p. 250.)
In this light, we are not persuaded that in the case at bench the prosecutor’s
desire to avoid an appearance of favoritism presented by an indirect personal link
20

between the prosecutor and defendant Vasquez deprived these defendants of
fundamental fairness in the proceedings. Neither Deputy District Attorney
Wilkinson nor her supervisors had a direct, substantial interest in the outcome or
conduct of the case separate from their proper interest in seeing justice done.
They did have an interest in avoiding an appearance of favoritism by the LACDA,
but we do not believe this conflict was “so severe as to deprive [defendants] of
fundamental fairness in a manner ‘shocking to the universal sense of justice.’ ”
(Villalpando v. Reagan, supra, 121 P.3d at p. 175.)
Given that “matters of kinship” do not necessarily create a constitutional
bar even to a judge’s participation (Tumey v. Ohio, supra, 273 U.S. at p. 523), we
are unable to conclude the family relationship between a defendant and two
employees out of hundreds in a public prosecutor’s office (see fn. 2, ante)
constitutionally bars that entire office from participating in the prosecution. The
indirect family link here, and the potential it created that the LACDA would “bend
over backwards” to make sure no favoritism appeared, are closer to the district
attorney’s “anxiety” over an appearance of impropriety in Schumer v. Holtzman,
supra, 454 N.E.2d at page 527, or the advocacy interest of the prosecutor’s wife in
Wright, supra, 732 F.2d at pages 1057-1058, than to the prosecutors’ simultaneous
representation of directly conflicting interests in Ganger, supra, 379 F.2d at pages
713-714, State v. Eldridge, supra, 951 S.W.2d at page 781, or Cantrell v.
Commonwealth, supra, 329 S.E.2d at page 26.
Nor can defendants point to any specific prosecutorial actions taken as a
result of the conflict that deprived them of a fundamentally fair proceeding.
Although Wilkinson’s fear of seeming to favor Vasquez influenced her decision to
decline a bench trial before Judge Shapiro, the result of that decision was only that
defendants received a jury trial―which, in any event, led to a mistrial rather than
convictions. As discussed above (see fn. 3, ante), the evidence does not support a
21

finding that Vasquez’s family relationship to LACDA employees influenced
Wilkinson or her office in their decision not to accept pleas to voluntary
manslaughter rather than murder.
As to the prosecutor’s conduct at the second trial, Vasquez points to two
pieces of evidence he contends the prosecutor improperly introduced and one
instance in which the prosecutor did not timely inform defense counsel of potential
inculpatory evidence. Vasquez does not argue these incidents constituted
unconstitutional misconduct in themselves, but rather that they demonstrate the
prosecutor’s extraordinary zeal and lack of impartiality. Evidentiary issues and
discovery disputes of this type are fairly common in serious criminal trials,
however, and absent more we cannot conclude they either showed or resulted from
a fundamentally unfair conflict of prosecutorial interest. 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. (Hambarian v.
Superior Court, supra, 27 Cal.4th at p. 843.)
Because the failure to recuse the LACDA did not infringe upon defendants’
state or federal constitutional rights to due process of law, the Court of Appeal did
not, as defendants contend, err in failing to consider the error to be a structural
violation of fundamental constitutional rights or to apply the harmless error
standard for constitutional trial error.
III. Violation of Section 1424 Is Not Structural Error
To the extent defendants contend a failure to recuse that violates section
1424 but not due process principles is a structural error and hence reversible per
se, we disagree. Prejudice from such a state law error, as we explain below, must
instead be evaluated under the standard of People v. Watson, supra, 46 Cal.2d 818
(Watson). Under that standard, the trial court’s error here was harmless.
22

Article VI, section 13 of the California Constitution provides that no
judgment shall be set aside because of an error in procedure unless the reviewing
court, “after an examination of the entire cause, including the evidence,”
concludes the error “has resulted in a miscarriage of justice.” We have construed
this provision to require in most circumstances an appellate determination
whether, in light of the entire record, “ ‘it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 492, quoting Watson, supra, 46
Cal.2d at p. 836.) At the same time, we have recognized that certain fundamental
errors in procedure, sometimes referred to as “ ‘structural,’ ” “are not susceptible
to the ‘ordinary’ or ‘generally applicable’ harmless error analysis―i.e., the
Watson ‘reasonably probable’ standard―and may require reversal of the judgment
notwithstanding the strength of the evidence contained in the record in a particular
case.” (Cahill, at p. 493.)
Whether the erroneous denial of a motion to disqualify the prosecutor under
section 1424 is structural in character and, if not, how actual prejudice may be
shown on appeal are questions of first impression in this court. Nor has the United
States Supreme Court decided whether participation of an interested prosecutor is
prejudicial per se. But in Vuitton, supra, 481 U.S. 787, a four-justice plurality of
the high court asserted that the appointment of an interested private party’s
attorney to prosecute a criminal contempt (which the court majority held improper
under its nonconstitutional supervisory authority) was an error “ ‘so fundamental
and pervasive’ ” as to require reversal without any prejudice analysis. (Id. at
p. 809.)7

7
Three justices agreed with the Vuitton plurality that the appointment was an
error, but disagreed it was prejudicial per se and would have remanded for a

(footnote continued on next page)
23



The Vuitton plurality gave several reasons for this conclusion, reasons that
have also been articulated in several sister-state decisions. The plurality first
looked to the prosecutor’s critical role in criminal proceedings, comparing the
participation of a conflicted prosecutor to that of a conflicted judge, a
discriminatorily selected grand jury, or a petit jury exposed to biasing publicity, all
of which it regarded as fundamental error regardless of actual prejudice. (Vuitton,
supra, 481 U.S. at p. 810.)8 Second, the plurality focused on the appearance of
impropriety created by an interested prosecutor, reasoning that “[a] concern for
actual prejudice in such circumstances misses the point, for what is at stake is the
public perception of the integrity of our criminal justice system.” (Vuitton, at
p. 811.)9 Finally, the plurality averred that “[a]ppointment of an interested

(footnote continued from previous page)
determination of prejudice (Vuitton, supra, 481 U.S. at pp. 825-827 (conc. & dis.
opn. of Powell, J.)), while one justice dissented entirely (id. at p. 827 (dis. opn. of
White, J.)). The fifth vote for reversal came from Justice Scalia, who would have
held the district court had no constitutional authority to initiate a contempt
prosecution or appoint any prosecutor. (Id. at p. 815 (conc. opn. of Scalia, J.).)
8
Accord, Sinclair v. State (Md.Ct.App. 1976) 363 A.2d 468, 475, and
footnote 8 (prejudice “presumed” as a matter of public policy in light of
prosecutor’s role in deciding whether to bring charges); Com. v. Tabor (Mass.
1978) 384 N.E.2d 190, 196 (“The district attorney is vital to the administration of
justice and to the vindication of constitutional rights. In view of his great
responsibilities, a district attorney may not compromise his impartiality.
[Citations.] We therefore require a new trial”); State v. Basham (S.D. 1969) 170
N.W.2d 238, 242 (as public prosecutors are “quasi-judicial officers representing
the state,” public policy requires reversal without a showing of “specific
prejudicial acts”).
9 Accord,
Davenport v. State, supra, 278 S.E.2d at page 441 (appearance of
impropriety denies the defendant a fair trial); People v. Zimmer, supra, 414 N.E.2d
at page 708 (“Moreover, even if the actuality or potentiality of prejudice were
absent, what of the appearance of things . . . ?”); State v. Eldridge, supra, 951
S.W.2d at page 784 (“What is at stake is the public perception of the integrity of
our criminal justice system”).
24



prosecutor is also an error whose effects are pervasive. Such an appointment calls
into question, and therefore requires scrutiny of, the conduct of an entire
prosecution, rather than simply a discrete prosecutorial decision. Determining the
effect of this appointment thus would be extremely difficult. A prosecution
contains a myriad of occasions for the exercise of discretion, each of which goes
to shape the record in a case, but few of which are part of the record.” (Vuitton, at
pp. 812-813.)10
A number of state and federal courts, on the other hand, have refused to
grant the defendants reversals and new trials because of the participation of a
conflicted prosecutor without a showing of actual prejudice, even when agreeing
the prosecutor should have been recused. In Wright, supra, 732 F.2d at pages
1056-1057, the court focused on the procedural posture of the case before it―a
collateral postconviction attack rather than a pretrial motion to recuse or even a
direct appeal. “Indeed, we think that the degree of prosecutorial misconduct of the
sort here in question and the degree of prejudice to the defendant necessary to
justify action by a reviewing court steadily increase as the case goes forward, with
the least being required on a motion to disqualify, somewhat more on a pretrial
motion to dismiss an indictment, still more on a motion in the district court after
conviction but before appeal, somewhat more on direct appeal, and as will be

10
Accord, People v. Stevens (Colo.Ct.App. 1981) 642 P.2d 39, 41 (no
prejudice showing required because evidence prosecutor revealed confidences
received while previously representing the defendant “would be well-nigh
impossible for a defendant to bring forth”); Com. v. Tabor, supra, 384 N.E.2d at
page 196, footnote 13 (“ ‘almost impossible to establish actual prejudice’ ”);
People v. Zimmer
, supra, 414 N.E.2d at page 707 (referring to “practical
impossibility of establishing that the conflict has worked to defendant’s
disadvantage”); State v. Eldridge, supra, 951 S.W.2d at page 784 (conflict of
interest violations “defy analysis by the harmless error standards”).
25



developed below, a good deal more on collateral attack.” (Id. at p. 1056, fn. 8,
italics added.)
Similarly, in United States v. Heldt, supra, 668 F.2d at pages 1276-1277,
the court distinguished between a timely motion to disqualify, which should be
granted if the prosecutor has a conflicting interest, and an appeal following a trial
at which the defendant did not make a recusal motion. In that situation, the
appellate court held, “the government interest[] in conserving judicial and
prosecutorial resources” mandated the defendants must be required to “prove
actual prejudice” to obtain a reversal. (Id. at p. 1277.) The court added that a
conflicted prosecutor presented a “less fundamental . . . threat to defendants” than
participation by a conflicted defense attorney or judge, situations in which no
showing of actual prejudice is required. (Id. at p. 1277, fn. 83.)11
In the circumstances of this case, we hold, as did the appellate court below,
that the trial court’s violation of section 1424 does not entitle defendants to
reversal on appeal without a showing of prejudice. Relief from an erroneous
denial under section 1424 is available by pretrial writ petition. (See, e.g., Millsap
v. Superior Court, supra, 70 Cal.App.4th at p. 205; Lewis v. Superior Court (1997)
53 Cal.App.4th 1277, 1286-1287.) At least where, as here, the defendant did not
seek such a writ, “the government interest[] in conserving judicial and

11 Accord,
United States v. Lorenzo (9th Cir. 1993) 955 F.2d 1448, 1453
(following Heldt in requiring a prejudice showing on appeal, even where the
defendants apparently did move to recuse in the trial court); State v. Williams
(Iowa 1974) 217 N.W.2d 573, 575 (while prosecutor may have had a conflict of
interest, denial of mistrial upheld because “it does not follow [the conflict]
affected the outcome of the trial”); Commonwealth v. Dunlap (Pa.Super.Ct. 1975)
335 A.2d 364, 366 (“While we feel it was improper for the prosecuting attorney to
permit the appearance of a conflict of interest, we fail to find any specific
prejudice to the appellant to warrant the grant of a new trial”).
26



prosecutorial resources” (United States v. Heldt, supra, 668 F.2d at p. 1277), given
constitutional force by the “miscarriage of justice” standard that governs our
review (Cal. Const., art. VI, § 13), strongly militates against reversing on appeal
without a showing of actual prejudice. As the Attorney General points out, we
have reached similar conclusions as to somewhat analogous types of error: while
in a pretrial motion or review thereof a prospective likelihood of unfairness
suffices, on appeal or collateral attack the defendant must show, at least, a
probability that such prejudice actually occurred. (See People v. Williams (1989)
48 Cal.3d 1112, 1125-1126 [change of venue motion]; People v. Wilson (1963) 60
Cal.2d 139, 150-154 [motion to dismiss for denial of speedy trial].)
Nor do we find the Vuitton plurality’s arguments for structural error
(Vuitton, supra, 481 U.S. at pp. 809-813) compelling as applied to California
procedures. While the prosecutor has important obligations to the cause of justice
that can be impaired by a conflict of interest, he or she is also an advocate for the
defendant’s conviction; the basic guardians of the defendant’s rights at trial are his
attorneys and the court, not the prosecutor. Thus, the participation of a conflicted
prosecutor, while it may be error under section 1424, is not as fundamental a flaw
in the fairness of the proceedings as the participation of a biased or conflicted
judge or juror or a conflicted defense attorney. (United States v. Heldt, supra, 668
F.2d at p. 1277, fn. 83.)12

12
Trial by a judge who lacks impartiality is given as an example of structural
error in Arizona v. Fulminante (1999) 499 U.S. 279, 309 (citing Tumey v. Ohio,
supra, 273 U.S. 510 [judicial conflict of interest]). The denial of an impartial jury
is also reversible per se. (People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088.)
Representation by defense counsel with a conflict of interest is described as
structural in People v. Cahill, supra, 5 Cal.4th at page 493 (citing People v.
Mroczko
(1983) 35 Cal.3d 86). (See also Cuyler v. Sullivan (1980) 446 U.S. 335,
348-350 [a defendant who did not object at trial to joint representation with

(footnote continued on next page)
27



An appearance of impropriety arising from participation of a conflicted
prosecutor, the second factor relied upon in Vuitton, supra, 481 U.S. at page 811,
is less of a consideration under section 1424 than under the high court’s
supervisory authority. As we have previously noted, section 1424 was enacted in
part to tighten the standards for recusal so that a mere appearance of impropriety
would not itself suffice; the statutory standard focuses instead on the actual
likelihood of unfair treatment. (Eubanks, supra, 14 Cal.4th at pp. 591-592.) To
hold that an erroneous failure to recuse under section 1424 is reversible per se
because of the appearance of impropriety it creates would be contrary to the
statutory policy.
The strongest argument for considering the participation of a conflicted
prosecutor to be structural error is the third one relied upon in Vuitton, supra, 481
U.S. at pages 812-813, and echoed by a number of other cases (see fn. 10, ante):
that the potential effects of the error pervade the proceedings, possibly including
any of the discretionary decisions the prosecutor makes from charging to sentence
recommendation, and themselves could affect the composition of the record,
making it practically impossible to trace the error’s prejudicial effects. This is
obviously true in a certain respect: the reasons for a prosecutor’s discretionary
decisions rarely appear in the record, and one often cannot know what different
decisions a nonconflicted prosecutor would have made.
Yet sometimes defendants are able to show actual prejudice, or at least a
strong probability of actual unfair treatment, as, for example, in Ganger, where

(footnote continued from previous page)
codefendant need not show prejudice, but must show that actual conflict of interest
adversely affected counsel’s performance]; People v. Ortiz (1990) 51 Cal.3d 975,
988 [“Reversal is automatic, however, when a defendant has been deprived of his
right to defend with counsel of his choice”].)
28



there was evidence the prosecutor “offered to drop the assault charge if Ganger
would make a favorable property settlement in the divorce action” (Ganger, supra,
379 F.2d at p. 711), or State v. Eldridge, supra, 951 S.W.2d at page 783, in which
it was apparent that payment of a certain amount in settlement of the civil case
“would result in a favorable recommendation of the special prosecutors in the
criminal matter.” Even in the case at bench it is claimed, and the Court of Appeal
agreed, that the conflict of interest influenced Deputy District Attorney
Wilkinson’s decision, after the first jury deadlocked, not to reduce her plea bargain
demand from second degree murder to voluntary manslaughter. Although we
conclude the record does not support such a finding (see fn. 3, ante), this form of
prejudice could be demonstrated on other facts. The possible prejudicial effects of
a conflict of interest on the part of the prosecutor may be pervasive, but they are
not necessarily untraceable.
The question, ultimately, is whether the threat to the integrity of criminal
proceedings posed by participation of a prosecutor with a conflict of interest that
before trial “render[ed] it unlikely that the defendant would receive a fair trial”
(§ 1424), but which in the event did not demonstrably affect the actual course of
the proceedings, justifies a departure from the ordinary rule, grounded in the need
for finality of judgments and conservation of judicial resources and embodied in
article VI, section 13 of the California Constitution, that to obtain reversal a
criminal appellant must show prejudice. At least under the circumstances of this
case―where defendants failed to avail themselves of their pretrial remedy by
filing a writ petition―we conclude no such departure is justified.
Finally, for reasons related to those discussed in part II, ante, we conclude
the trial court’s error in this case was harmless under Watson. The prosecutor’s
refusal to stipulate to a bench trial before Judge Shapiro, while it was influenced
by the prosecutor’s conflict of interest, was not detrimental to defendants as the
29

result was only that they received a jury trial, which did not end in conviction. The
record does not show a likelihood that Judge Shapiro would instead have acquitted
defendants of murder had he been the trier of fact. Nor does the record show any
other prejudicial prosecutorial choices or conduct traceable to the LACDA’s
conflict of interest. Thus it is not “reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the
error.” (Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.

30





CONCURRING OPINION BY CORRIGAN, J.

I concur in the judgment, but write separately to emphasize the unique
circumstance that gave rise to this conflict for the Los Angeles County District
Attorney’s Office (LACDA). Because defendant Vasquez’s parents were LACDA
employees, prosecutor Wilkinson expressed concern that decedent’s family might
interpret her waiver of a jury trial as an act of favoritism to Vasquez. During the
hearing on Vasquez’s recusal motion, Wilkinson told the court that the decedent’s
family was “very concerned that perhaps we were not pursuing things.” She
stated, “I wanted to insure that there was no appearance of any impropriety on the
part of our office in handling this.”
It is to be expected that families of homicide victims will be acutely
concerned about the progress of a defendant’s prosecution. An act of homicide
claims a life, but it also profoundly affects the family that is left behind. The
desire by these family members for a diligent and vigorous prosecution is
understandable. Crime victims have a right to actively follow the case that results
from a defendant’s conduct. That they may do so, and may do so with intensity,
does not create a conflict, nor should our opinion be read to imply that it does so.
However, a prosecutor speaks not solely for the victim or his family, but for
all the People. The body of the “The People” includes the defendant and his
family and citizens who know nothing about a particular case. The district
attorney is expected to exercise his or her discretionary functions independently in
the interests of the entire community.
1



The line crossed here was a very fine one. It flowed from the particular
relationship of Vasquez and his family with the prosecutor’s office itself.
Wilkinson’s laudable goal of avoiding the appearance of impropriety created its
own irony. Wilkinson sought to make clear that Vasquez was not receiving more
lenient treatment because of his parents’ employment. In the process, she appears
to have treated him differently because of that relationship. Defendants may
legitimately be treated differently for a wide variety of reasons. But this particular
disparity of treatment, based on Vasquez’s familial ties to the prosecutor’s office,
is what gave rise to the conflict here.
I concur with the majority that the trial court’s failure to disqualify the
LACDA’s office was a violation only of Penal Code section 1424 and not
defendants’ federal and state due process rights. The prosecutor’s refusal to
stipulate to a bench trial was harmless. (People v. Watson (1956) 46 Cal.2d 818.)
CORRIGAN, J.
2






CONCURRING AND DISSENTING OPINION BY MORENO, J.

I concur in the majority’s conclusion that “the close family relationship
between longtime employees of the LACDA [Los Angeles County District
Attorney] and defendant Vasquez created a conflict of interest and a consequential
likelihood of unfair treatment that should have been avoided through recusal of the
prosecutorial office.” (Maj. opn., ante, at p. 6.) I also agree with the majority that
not every violation of Penal Code section 1424 (section 1424) necessarily violates
due process guarantees. (Id., at p. 13.) I dissent, however, from the majority’s
further conclusion that the denial of defendants’ recusal motions in this case did
not constitute a due process violation. (Id., at p. 11.)
The pattern of conduct by the prosecutor in this case established that
Vasquez was treated differently and less favorably than another defendant in his
position would have been who did not have Vasquez’s family connection to the
LACDA. This disparate treatment of Vasquez violated the duty imposed on
prosecutorial offices to exercise their discretion in an impartial and evenhanded
manner “born of objective and impartial consideration of each individual case.”
(People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 267.) As we stated in
Greer, “[i]ndividual instances of unfairness, although they may not separately
achieve constitutional dimension, might well cumulate and render the entire
proceeding constitutionally invalid.” (Id., at p. 265.) That point was reached by
the time of the second motion to recuse because by then there was demonstrable
1



evidence that the prosecutor’s discretionary decisions were being driven by the
LACDA’s concern that it not be perceived as showing any favoritism to Vasquez
due to his family connection to the office. Because “we do not know and cannot
now ascertain what would have happened if the prosecuting attorney had been free
to exercise the fair discretion which he owed to all persons charged with a crime in
his court” (Ganger v. Peyton (4th Cir. 1967) 379 F.2d 709, 714), I am unable to
conclude that the constitutional violation was harmless beyond a reasonable doubt.
(Ibid, citing Chapman v. California (1967) 386 U.S. 18.) Accordingly, I would
reverse defendants’ convictions.1
I emphasize at the outset that my conclusion arises from the specific facts
of this case viewed in their totality. I do not intend to suggest that a prosecutor’s
office should be recused in every case in which either a defendant or a victim of
crime has some family connection to that office. Moreover, even in this case,
recusal would not have been necessary had there not been a pattern of unfair
treatment of Vasquez both on the record and reasonably inferable from the record.
My opinion should be read with those caveats in mind.
I begin with the applicable law. Classically, the concept of due process
does not describe discrete events in a prosecution but the entire unfolding
procedure. (People v. Lyons (1956) 47 Cal.2d 311, 319 [“It is axiomatic that when
an accused is denied that fair and impartial trial guaranteed by law, such procedure
amounts to a denial of due process”].) The seminal case regarding prosecutorial

1
Although the basis of the conflict in this case involved the employment of
Vasquez’s parents by the LACDA, as codefendant Anthony Fregoso observes he
and Vasquez were tried together – before the second trial Fregoso moved
unsuccessfully to sever his trial from Vasquez’s – and thus Fregoso’s “fate was
dependent upon the prosecutor’s treatment of [Vasquez] with regard to every
discretionary decision.”
2



conflicts makes it clear that prosecution of a defendant by a conflicted prosecutor
implicates the due process right to a trial that is “fair and impartial” at every stage
of the proceeding. (People v. Superior Court (Greer), supra, 19 Cal.3d at p. 266.)
As Greer also makes clear, “It is the obligation of the prosecutor, as well as of the
court, to respect this [due process] mandate.” (Ibid.)
The prosecutor has a special duty of impartiality that flows from his or her
function as “ ‘the representative . . . 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.’ ” (People v. Superior Court (Greer), supra, 19 Cal.3d at p. 266.)
Moreover, the prosecutor’s role as representative of the People necessarily
includes “ ‘the defendant and his family and those who care about him. It also
includes the vast majority of citizens who know nothing about a particular case,
but who give over to the prosecutor the authority to seek a just result in their
name.’ (Corrigan, On Prosecutorial Ethics (1986) 13 Hastings Const. L.Q. 537,
538-539.)” (People v. Eubanks (1996) 14 Cal.4th 580, 589-590, italics added.)
The obligation of a prosecutor to observe the mandate of due process is
particularly crucial in light of the prosecutor’s broad discretionary powers during
the course of a criminal prosecution. “[I]t is precisely because the prosecutor
enjoys such broad discretion that the public he serves and those he accuses may
justifiably demand that he perform his functions with the highest degree of
integrity and impartiality . . . .” (People v. Superior Court (Greer), supra, 19
Cal.3d at pp. 266-267; People v. Eubanks, supra, 14 Cal.4th at p. 590 [“Thus the
district attorney is expected to exercise his or her discretionary functions in the
interests of the People at large, and not under the influence or control of an
interested individual”].) To fulfill this due process obligation, the prosecutor’s
exercise of discretion must be “born of objective and impartial consideration of
3

each individual case.” (People v. Superior Court (Greer), supra, 19 Cal.3d at p.
267.)2
Applying these principles to the instant case, the record shows that certain
discretionary decisions made by the prosecutor were not “born of objective and
impartial consideration” of the circumstances of this case but affected by
LACDA’s interest in avoiding allegations by the victim’s family or the general
public that favoritism had been shown to the child of longtime employees of the
office. Furthermore, I submit that this conflict was not personal to the prosecutor
who handled defendant’s case but was an institutional conflict involving the entire
LACDA. The clearest evidence that this conflict was institutional, and that it was
recognized as such by the LACDA itself, can be inferred from the fact that the Los
Angeles District Attorney tendered the prosecution to the Attorney General long
before defendants’ motions to recuse the office.3 Given that the head of the office
recognized the existence of a potentially disabling conflict, it is not plausible that

2
I do not believe that what the majority describes as the “somewhat narrower
standard the Legislature created in section 1424” (maj. opn., ante, at p. 15),
diminishes the prosecutor’s responsibilities in this respect. To the contrary, the
two-part test established by section 1424 for recusal seems to echo these due
process concerns. Under the statute, “ a ‘conflict,’ within the meaning of section
1424, exists whenever the circumstances of a case evidence a reasonable
possibility that the DA’s office may not exercise its discretionary function in an
evenhanded manner
” and recusal is required when 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. Conner (1983) 34 Cal.3d 141, 148, italics
added.)
3
As I emphasized at the outset, in examining whether the conflict in this case
violated defendants’ due process rights, I am focused only on the particular
constellation of facts presented here. I do not intend to suggest that every case in
which a district attorney unsuccessfully tenders prosecution of a case to the
Attorney General will necessarily constitute evidence of the existence of a
disabling conflict. The subsequent conduct by the district attorney’s office may
demonstrate that any conflict was successfully negotiated.
4



the various discretionary decisions made by the individual prosecutor in this case
did not reflect an institutional interest in avoiding any showing of favoritism
toward Vasquez.
With respect to those discretionary decisions, I find compelling evidence of
the disparate and unfair treatment of Vasquez in the prosecutor’s refusal to waive
jury trial. The majority and I are in agreement that, based on the prosecutor’s own
statements, this decision was influenced by the prosecutor’s concern “about an
appearance to the victim’s family of favoritism by the LACDA’s office” toward
the child of longtime employees. (Maj. opn., ante, at p. 6.)
In light of this admission, I also find suspect the prosecutor’s decision to
refuse defendants’ offer to plead guilty to voluntary manslaughter. The majority
argues that the prosecutor’s refusal was justified by the vote of the first jury that
showed at least eight jurors had voted either for first or second degree murder –
three voted for voluntary manslaughter and one to acquit – and because the
evidence was susceptible to an assessment that Vasquez committed murder. (Maj.
opn., ante, at p. 11, fn. 3.) I disagree.
The prosecutor’s earlier refusal to accept a court trial in order to avoid the
appearance of favoritism leads to the conclusion that a similarly improper motive
likely led her to reject defendants’ offers to plead to voluntary manslaughter.
Under the circumstances, a prosecutor who was not hindered by a conflict of
interest would have seriously considered, and likely accepted, defendants’ offer.
The first trial had left fully one-third of the jury unconvinced that a murder had
occurred. A prosecutor looking at this result, knowing that his or her evidence
was likely to be weakened by the passage of time and the availability of a
transcript with which to impeach prosecution witnesses, might well have accepted
a plea to a lesser charge.
5

Finally, as the Court of Appeal observed, the evidence in this case could
also have supported a finding that Vasquez did not intend to kill the victim.
“Vasquez had no prior criminal record. The evidence of Vasquez’s intent was
arguably ambiguous. The evidence showed the P.A.L. and C.N.E. tagging crews
were rivals but that their usual mode of confrontations was fistfights. The tagging
crews had no history of using deadly weapons, or any weapons for that matter,
beyond mace or pepper spray. The jury at the first trial obviously could not agree
on the crime committed. It is possible that several of these jurors believed
Vasquez and Fregoso merely intended to assault and scare the victim rather than
kill him.”
In light of these circumstances, I cannot agree with the majority that the
prosecutor’s categorical rejection of defendants’ offer to plead to voluntary
manslaughter was not influenced by the conflict that the prosecutor admitted had
influenced her decision not to waive jury. In my view, that conflict appears to
have permeated the prosecutor’s treatment of defendant.
In short, “[g]iven the entire complex of facts in this case,” I conclude that
defendants did not “receive fair and impartial treatment” (Hambarian v. Superior
Court (2002) 27 Cal.4th 826, 852 (dis. opn of Moreno, J.)), resulting in a violation
of their due process rights. (Cf. People v. Eubanks, supra, 14 Cal.4th at p. 599
[“the trial court must consider the entire complex of facts . . . to determine whether
the conflict makes fair and impartial treatment of the defendant unlikely”].) A
prosecutor, straining to avoid showing any favoritism toward the child of career
employees of her office, made at least two documented discretionary decisions
that were not reached in a fair and impartial manner. These decisions must be
viewed in light of the recognition by the Los Angeles District Attorney that this
case represented a potentially disabling conflict as evidenced by his unsuccessful
tender of the case to the Attorney General. Thus, the individual prosecutor’s
6

discretion in this case was guided by institutional concerns about showing
favoritism to Vasquez rather than concerns personal to her. Accordingly, I would
reverse defendants’ convictions.
MORENO, J.
I CONCUR: GEORGE, C. J.
7

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

Name of Opinion People v. Vasquez
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 122 Cal.App.4th 1027
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S128854
Date Filed: July 10, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Larry P. Fidler

__________________________________________________________________________________

Attorneys for Appellant:

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

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

__________________________________________________________________________________

Attorneys for Respondent:

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



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

Nancy J. King
1400 Sixth Ave., Suite 210C
San Diego, CA 92101
(858) 755-5258

Herbert S. Tetef
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-0201


Opinion Information
Date:Docket Number:
Mon, 07/10/2006S128854

Parties
1Fregoso, Anthony (Defendant and Appellant)
Represented by Sylvia Whatley Beckham
Attorney at Law
PMB 529, 402 W. Ojai Avenue, Suite 101
Ojai, CA

2Vasquez, Andrew (Defendant and Appellant)
Represented by Nancy J. King
Attorney at Law
1400 Sixth Avenue, Suite 210-C
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Herbert S. Tetef
Office of the Attorney General
300 S. Spring Street, Suite 5000
Los Angeles, CA


Disposition
Jul 10 2006Opinion: Affirmed

Dockets
Nov 1 2004Petition for review to exhaust state remedies filed
  by counsel for aplt Fregoso
Nov 1 20042nd petition for review filed
  by aplt Vasquez
Nov 3 2004Record requested
 
Nov 3 2004Received Court of Appeal record
 
Nov 17 2004Request for depublication (petition for review pending)
  counsel for respondent, the people
Dec 13 2004Note:
  requested remaining volumes by overnight service.
Dec 14 2004Received Court of Appeal record
 
Dec 17 2004Time extended to grant or deny review
  To January 28, 2005.
Jan 12 2005Petition for review granted; issues limited (criminal case)
  (PETITIONS) The issue to be briefed and argued is limited to the following: Are defendants entitled to reversal on the ground the trial court erred in denying defendant Vasquez's request to recuse the entire Los Angeles County District Attorney's Office in light of his allegations he was being treated more harshly due his parents' long-term employment in the office? Votes: George, C.J., Kennard, Werdegar and Brown, JJ.
Feb 3 2005Counsel appointment order filed
  Upon request of appellant Anthony Fregoso for appointment of counsel, Sylvia Watley Beckham is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Feb 23 2005Counsel appointment order filed
  Upon request of appellant Andrew Vasquez for appointment of counsel, Nancy King is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Feb 28 2005Request for extension of time filed
  By counsel for appellant Anthony Fregoso requesting a 30-day extension to and including April 4, 2005 to file appellant's opening brief on the merits.
Mar 2 2005Extension of time granted
  On application of appellant ANTHONY FREGOSO and good cause appearing, it is ordered that the time to serve and file his opening brief on the merits is extended to and including 4-5-2005.
Mar 24 2005Request for extension of time filed
  by counsel for appellant Andrew Vasquez: requesting a 31-day extension to and including April 25, 2005 to file appellant's opening brief on the merits.
Mar 24 2005Request for extension of time filed
  by counsel for appellant Anthony Fregoso: requesting a 30-day extension to and including May 5, 2005 to file appellant's opening brief on the merits.
Mar 25 2005Extension of time granted
  To May 5, 2005 to file appellant's {Anthony Fregoso} Opening Brief on the Merits.
Mar 25 2005Extension of time granted
  To April 25, 2005 to file Appellant's {Andrew Vasquez} Opening Brief on the Merits.
Apr 21 2005Request for extension of time filed
  by counsel for appellant Andrew Vasquez: requesting a 30-day extension to an including May 25, 2005 to file appellant's opening brief on the merits.
May 3 2005Extension of time granted
  To May 25, 2005 to file Appellant's {Andrew Vasquez} opening brief on the merits.
May 5 2005Note:
  per call from Atty. for appellant A. Fregoso: Opening Brief was sent 5-4-05 priority mail.
May 6 2005Opening brief on the merits filed
  By counsel for appellant {Anthony Fregoso} / CRC 40.1(b).
May 25 2005Request for extension of time filed
  by counsel for Andrew Vasquez: requesting a 14-day extension to and including June 8, 2005 to file appellant's opening brief on the merits.
May 26 2005Extension of time granted
  To June 8, 2005 to file appellant's {Andrew Vasquez} opening brief on the merits. No further extensions are contemplated.
Jun 8 2005Compensation awarded counsel
  Atty Beckham
Jun 9 2005Opening brief on the merits filed
  By counsel for appellant {Andrew Vasquez} / CRC 40.1(b).
Jun 22 2005Compensation awarded counsel
  Atty King
Jul 5 2005Request for extension of time filed
  to file respondent's answer brief/merits asking to August 8, 2005
Jul 7 2005Extension of time granted
  serve and file the Respondent's Brief to and including August 8, 2005.
Aug 2 2005Request for extension of time filed
  to file respondent's answer brief/merits asking to Sept. 7, 2005.
Aug 4 2005Extension of time granted
  to serve and file the answer brief on the merits to and including September 7, 2005. No further extensions are contemplated.
Aug 9 2005Received additional record
  Augmented Clerk's Transcript dated October 27, 2003.
Sep 6 2005Respondent's brief filed
  /on the merits [PEOPLE]
Sep 21 2005Request for extension of time filed
  by appellant (Vasquez) to file reply brief on the merits to and including October 26, 2005.
Sep 26 2005Reply brief filed (case fully briefed)
  Appellant (Fregoso) by counsel.
Sep 26 2005Received:
  Motion to Strike Argument I of the answer brief on the merits by appellant (Fregoso) by counsel.
Sep 29 2005Extension of time granted
  to file and serve the reply brief on the merits to and including October 26, 2005.
Oct 7 2005Opposition filed
  respondent [the people] opposing motion to strike argument filed by appellant[Fregoso]
Oct 27 2005Reply brief filed (case fully briefed)
  Appellant ( Andrew Vasquez)
Apr 4 2006Case ordered on calendar
  Wednesday, May 3, 2006, at 9:00 a.m., in San Francisco
Apr 24 2006Order filed
  Defendant's Fregoso'smotion to strike a portion of the People's answer brief on the merits is denied.
May 3 2006Cause argued and submitted
 
Jul 10 2006Opinion filed: Judgment affirmed in full
  Majority opinion by: Werdegar, J. -----joined by: Kennard, Baxter, Chin, J.J. Concurring opinion by: Corrigan, J. Concurring and dissenting opinion by: Moreno, J. -----joined by: George, C.J.
Jul 25 2006Rehearing petition filed
  Andrew Vasquez, appellant Nancy J. King, Counsel
Jul 26 2006Time extended to consider modification or rehearing
  to October 6, 2006.
Jul 31 2006Rehearing petition filed
  Anthony Fregoso, Appellant (40.1b) Sylvia W. Beckham, Counsel
Aug 16 2006Rehearing denied
  Moreno, J., is of the opinion the petition should be granted.
Aug 16 2006Remittitur issued (criminal case)
 
Nov 15 2006Compensation awarded counsel
  Atty Beckham
Dec 20 2006Compensation awarded counsel
  Atty King

Briefs
May 6 2005Opening brief on the merits filed
 
Jun 9 2005Opening brief on the merits filed
 
Sep 6 2005Respondent's brief filed
 
Sep 26 2005Reply brief filed (case fully briefed)
 
Oct 27 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website