Filed 6/17/14 P. v. Morales CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
     publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                         E058593

v.                                                                        (Super.Ct.No. SWF1205432)

SERGIO SOLANO MORALES,                                                    OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Michael J. Rushton,

Judge. Reversed with directions.

         Paul E. Zellerbach, District Attorney, Ivy B. Fitzpatrick, Deputy District

Attorney, for Plaintiff and Appellant.

         Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant

and Respondent.




                                                              1
       Plaintiff and appellant the Riverside County District Attorney’s Office (DA’s

Office) filed a complaint against defendant and respondent, Sergio Solano Morales,

charging him with (1) murder (Pen. Code, § 187);1 (2) gross vehicular manslaughter

while intoxicated (Pen. Code, § 191.5, subd. (a)); (3) leaving the scene of a vehicular

accident that involved a death or injury (Veh. Code, § 20001, subd. (a)); and (4) driving

while his license was suspended (Veh. Code, § 14601.2, subd. (a)). Various

enhancements were also alleged. There were two victims of the car crash. The victim

who died was Marissa D. (the victim); the second victim, Alberto A., was injured. The

victim’s sister, Rosario Kuznetsov (Rosario), was a paralegal in the DA’s Office.2 The

victim’s brother-in-law, Alexander Kuznetsov (DDA Kuznetsov), was a Deputy District

Attorney in the DA’s Office.

       Defendant moved the trial court to recuse the DA’s Office or, in the alternative,

to recuse the downtown Riverside branch of the DA’s Office. The trial court granted

the alternative request. The trial court found there was a conflict of interest, but that the

conflict was not so severe as to require the entire DA’s Office to be recused. The trial

court ordered the downtown Riverside branch of the DA’s office be recused from the




       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.

       2 We use Rosario Kuznetsov’s first name for clarity, due to her husband having
the same last name. No disrespect is intended. Rosario, the victim’s sister, was
employed by the DA’s Office at the time of the car crash. During the pendency of this
case, Rosario left the employ of the DA’s Office.


                                              2
case, including the supervisor of vehicular homicide cases, Assistant District Attorney

Creg G. Datig (Datig).3

       The People contend the trial court erred by ordering the downtown branch of the

DA’s Office be recused from defendant’s case. The People provide only one argument

heading, but appear to have bundled several arguments under the single heading. (Cal.

Rules of Court, rule 8.204(a)(1)(B) [separate headings are required].) We have found

three separate arguments. First, the People assert the trial court “should have ended [its]

analysis” after its findings in relation to the county-wide recusal motion. Second, the

People contend the trial court applied an incorrect legal standard when it conducted a

cost-benefit analysis. Third, the People contend the trial court incorrectly interpreted a

case, People v. Gamache (2010) 48 Cal.4th 347.4 We reverse the order with directions.

                     FACTUAL AND PROCEDURAL HISTORY

       On September 30, 2012, defendant allegedly drove a vehicle while intoxicated,

which resulted in the victim’s death and injuries to Alberto A. The collision occurred in

Hemet. The DA’s Office Southwest branch, in Murrieta, typically handled cases

involving crimes occurring in Hemet. Deputy District Attorney Tahan (Tahan), who

worked in the Southwest branch, went to the scene of the crash at 4:35 p.m. on


       3   District Attorney Zellerbach was the one exception to the recusal order.

       4 The People (1) mention the substantial evidence standard of review in their
appellant’s opening brief, and (2) in their appellant’s reply brief, assert there was a lack
of evidence. Therefore, it is possible the People also intended to raise a substantial
evidence argument; however, it is unclear given the mixture of arguments and
assertions.


                                             3
September 30. Later that day, at 11:00 p.m., while Tahan was at the hospital for an

unrelated fatal collision, he saw DDA Kuznetsov leaving the hospital chapel. Tahan

suspected the victim from the 4:35 p.m. crash was related to DDA Kuznetsov’s wife,

since Rosario’s maiden name was the same as the victim’s last name. DDA Kuznetsov

confirmed the victim was Rosario’s sister. Tahan “immediately advised [his] chain-of-

command—including ADA Creg Datig, CDDA Guy Pittman, and SDDA Sam

Kaloustian—of this new information.”

       Datig worked as an assistant district attorney, supervising the Western

Operations division. Datig supervised the attorneys in the downtown Riverside DA’s

Office. Tahan, who works in Murrieta, normally would not be supervised by Datig.

However, as part of a grant program, Tahan was assigned to prosecute DUI-homicide

cases in the Southwest region of the county. Datig, due to his expertise in prosecuting

vehicular homicide cases, was the director of the grant program. Therefore, Datig

supervised Tahan.

       Datig knew Rosario and DDA Kuznetsov. Both Rosario and DDA Kuznetsov

were within Datig’s “chain of command” in the downtown office. However, he was not

the direct supervisor of Rosario or DDA Kuznetsov. Datig asserted he had only “a

passing relationship with both employees and do[es] not socialize with either one inside

or outside of the office.”

       On October 3, 2012, staff at the DA’s Office met to decide whether, and with

what crimes, to charge defendant. The people who attended the meeting were

“Assistant District Attorney Sean Lafferty (who has responsibility for the Eastern and


                                            4
Southwestern Divisions), Chief Deputy District Attorney Guy Pittman, Chief Deputy

District Attorney E. Michael Soccio, Supervising Deputy District Attorney Sam

Kaloustian, and Deputy District Attorney David Tahan. ADA Lafferty was the senior

member of the office at the staffing and had authority to make the final charging

decision.” Datig was traveling out of state, so he was not at the meeting.

       The Southwest division of the DA’s Office filed a complaint against defendant

on October 3, 2012, charging him with the various offenses listed ante. Rosario and

DDA Kuznetsov were “completely ‘walled off’” from the prosecution. The records

related to defendant’s case were only available to Tahan, employees directly involved in

the case, and Tahan’s “chain of command,” i.e., Datig.

       On October 4, defendant’s trial counsel (Knight) met with Tahan. Knight offered

for defendant to serve 16 years, three months in prison, which would be the maximum

sentence without the murder charge. Tahan said, “That might work.” Datig was

informed of the plea offer. Datig rejected the offer. Defendant offered to enter a plea

that would result in an 18-year prison sentence. Datig rejected that offer as well

because he believed the offer involved defendant pleading to an allegation that was not

supported by the evidence.

       At some point during the period when defendant’s offers were being considered,

Tahan informed Knight of the victim’s familial relationships with Rosario and DDA

Kuznetsov. In February 2013, defendant filed a motion to recuse the entire DA’s Office

or, in the alternative, to recuse the downtown division of the office, including Datig.

The motion was brought on the basis that defendant could not receive a fair trial due to


                                             5
the DA’s Office’s conflict of interest, i.e., the victim’s relatives being employees of the

DA’s Office.

       Defendant asserted the DA’s Office was an “interested party” in defendant’s case

due to two employees “suffer[ing] a tremendous loss.” Defendant asserted the DA’s

Office could not be impartial in its handling of the case due to the personal interests

involved. Therefore, defendant asserted there were both real and perceived conflicts of

interest. Defendant argued that while the case was being handled by the Southwest

division, any plea deals would involve supervisors from the downtown division, which

would affect defendant’s right to an impartial prosecutor. Defendant asserted the

downtown division had been “undoubtedly impacted” by the “enormity” of this case,

such that plea offers could not be impartially considered by members of the downtown

division.

       The People opposed the motion. The People asserted defendant’s conflict

argument was speculative and not supported by any evidence. The People asserted the

affected relatives, Rosario and DDA Kuznetsov, were “walled off” from the case, and

the “matter [was] not being handled differently than any other similar criminal matter.”

In a declaration attached to the opposition, Tahan declared he had “only a passing work

relationship with [Rosario and DDA Kuznetsov]; [he did] not socialize with them at or

outside work and [he had] not been assigned to the same unit as either one of them.”

       The Attorney General (AG) also opposed the motion. The AG asserted

(1) Rosario and DDA Kuznetsov were “‘walled off’” from the case; (2) Tahan declared

he would not treat the case differently than any other case; (3) Tahan declared he did not


                                             6
have a close relationship with Rosario and DDA Kuznetsov; and (4) the documents

related to the case were stored on a secure server and were only accessible to Tahan,

Tahan’s paralegal, Tahan’s investigator, and the chief and assistant district attorneys.

The AG asserted that given these circumstances, defendant could not show a conflict

existed or that the case would be handled unfairly.

       Defendant replied to the People’s and AG’s oppositions. Defendant asserted the

need to wall off Rosario and DDA Kuznetsov reflected a conflict existed in the case.

Thus, defendant asserted he established there was a conflict, and it was the People’s

burden to show the wall was effective. Defendant argued that the DA’s Office had a

centralized structure, wherein filing decisions related to the grant program go through

the Downtown division of the office.

       Defendant also questioned Datig’s level of interaction with Rosario and DDA

Kuznetsov, because they worked under Datig’s supervision. Additionally, defendant

questioned Tahan’s assertion that he had only passing work relationships with Rosario

and DDA Kuznetsov, since Tahan recognized DDA Kuznetsov at the hospital.

Defendant asserted the ethical wall blocking only Rosario and DDA Kuznetsov from the

case was ineffective given the connections between Rosario, DDA Kuznetsov, Datig,

and Tahan.

       On March 8, 2013, the trial court held a hearing on defendant’s motion. The trial

court asked the parties whether they believed an evidentiary hearing was necessary.

Defendant asserted evidence needed to be taken. The People contended an evidentiary

hearing was not necessary because defendant did not meet his prima facie burden of


                                             7
showing an appearance of a conflict. The trial court found defendant met his prima

facie burden. The trial court explained, “[W]hen somebody hears or reads that the

person who supervises [DDA] Kuznetsov, his wife, who are closely related to the victim

in this case, is also the one with the ultimate decision-making power as to this particular

case, I think, at least for purposes of answering this question, there is evidence of a

conflict.” The trial court ordered a declaration from Datig be submitted, in order to

avoid a subpoena being issued for Datig.

       Datig provided a declaration; the relevant details of the declaration are included

in the facts set forth ante. Chief Deputy District Attorney Mike Soccio also submitted a

declaration reflecting, among other things, that Rosario was no longer employed by the

DA’s office.

       The court held a second hearing on the motion on March 22, 2013. Defendant

argued Datig knew the victim’s relatives. Defendant asserted that as the victim’s

relatives’ supervisor, Datig should be recused. The People argued Datig is “an

incredible resource,” and removing him would harm the prosecution. The People

further asserted there was no evidence of an actual conflict because Datig declared he

only knew Rosario and DDA Kuznetsov “in passing.” The People contended there was

no evidence reflecting Datig was conflicted and defendant was only offering

speculation.

       In support of his argument, defendant cited People v. Gamache (2010) 48 Cal.4th

347 (Gamache). The trial court said it found Gamache to be “highly illustrative.” In

Gamache, the defendant sought recusal of the entire San Bernardino County District


                                             8
Attorney’s Office (SBDA’s Office) because a typist who had been working in the

SBDA’s Office for 10 years was a surviving victim of the defendant’s crimes, and a

relative of one of defendant’s victims. (Id. at pp. 361-362.) The trial court found the

defendant did not establish a conflict rising to a level that would require recusal of the

entire SBDA’s Office. (Id. at p. 363.)

       The Supreme Court affirmed the trial court’s ruling, concluding the court did not

abuse its discretion.5 (Gamache, supra, 48 Cal.4th at p. 363.) The Supreme Court set

forth a two-part test for recusal motions: (1) is there a conflict, and (2) if there is a

conflict, is it severe enough to require recusal. (Id. at p. 361.) The Supreme Court

agreed with the defendant that the first prong was satisfied. (Id. at p. 362.) Therefore,

the Supreme Court focused on whether the trial court abused its discretion in

determining the conflict did not rise to a level requiring recusal of the entire SBDA’s

Office. (Id. at pp. 361, 363.)

       The Supreme Court cited evidence reflecting the SBDA’s Office was large with

over 500 employees and a “huge geographic spread.” The murder occurred in the area

where the employee/victim worked—the desert division—and was initially handled by

that division. However, approximately one month after charges were filed, the case was

reassigned from the Barstow/Desert Office to the San Bernardino/Central Office, 75

miles away. The Supreme Court noted the prosecutor working on the case in the



       5 This court did not issue an opinion in the matter because Gamache is a death
penalty case. (Gamache, supra, 48 Cal.4th at p. 356.)


                                               9
Central division never met the victim/employee and was part of a career prosecution

group that had its own staff, separate from the rest of the Central division.

        The Supreme Court concluded the decision to seek the death penalty was not

influenced by a conflict of interest because “the decision maker had no personal

relationship with [the victim/employee] and based his decision on input from others

with no connection to [the victim/employee].” (Gamache, supra, 48 Cal.4th at p. 363.)

The Supreme Court noted the person who made the decision, District Attorney Dennis

Kottmeier, “barely knew” the victim/employee—he did not hire her, did not have social

contact with her, did not know her by name, and would only have recognized her face in

the context of visiting the Barstow/Desert division of SBDA’s Office. (Ibid.)

        A chief deputy who did know the victim/employee “immediately recognized his

participation in the case could create a recusal problem, [and] concluded he should have

no role in any discretionary decisions.” (Gamache, supra, 48 Cal.4th at p. 364.) The

Supreme Court concluded that, based upon the evidence, the trial court could have

reasonably concluded “the prompt steps taken to screen off prosecution of this case

from those employees who might have any connection to [the victim/employee, made it

so] there was no likelihood the conflict would lead to unfair treatment of [the defendant]

at trial.” (Id. at p. 365.) The high court also again cited the size of the SBDA’s Office

as a factor in the effectiveness of the ethical walls the office created. (Id. at pp. 365-

366.)

        In the instant case, in regard to the first step—whether there is a conflict, i.e., a

reasonable possibility of the prosecutor’s impartial discretion being affected (Gamache,


                                              10
supra, 48 Cal.4th at p. 362)—the trial court concluded that, in light of Gamache, there

was a conflict. The trial court analogized the instant case with Gamache. The trial

court noted the victim in the instant case was related to two employees in the DA’s

Office, which was “rational[ly]” similar to the situation of the victim/employee in

Gamache, whose husband died. (See Ibid.) Thus, the trial court concluded defendant

satisfied the first prong.

       In regard to the second prong, the trial court began with defendant’s request to

recuse the entire, county-wide, DA’s Office. The trial court noted Datig was not present

during the meeting when charging decisions were made in the case. Therefore, the trial

court found there was not a severe conflict at the filing stage. Next, the trial court

considered whether Datig’s involvement with the plea offers “irretrievably harmed” the

case. The court found the evidence did not support a finding “that the conflict is so

severe that the district attorney’s office would need to be removed from the case.”

Thus, the trial court found “although there is a conflict, notwithstanding what has

already happened with the case, in the Court’s view, the conflict is not so severe as to

disqualify the district attorney’s office from acting.”

       The trial court then turned to its “final question”—whether Datig should be

recused from the case, leaving Lafferty to supervise the matter. The trial court said its

tentative decision was to order Datig be recused. The People argued “the standard is the

same, whether it’s the whole office or one person.” The trial court explained “Datig

works in a discrete office,” and the victim’s relatives are in Datig’s office. The trial




                                             11
court noted in Gamache, the one chief deputy that had a relationship with the

victim/employee recused himself.

        The People argued the chief deputy in Gamache knew the victim/employee in a

more meaningful way than Datig knows Rosario and/or DDA Kuznetsov. The People

again cited the evidence reflecting Datig only knew Rosario and DDA Kuznetsov “in

passing.” Defendant asserted there is no discussion in Gamache about the chief deputy

knowing the victim/employee well. Defendant argued Gamache did not set forth a

requirement for a supervisor to know the affected employee “in a meaningful way.”

        The trial court gave its ruling.6 The trial court said, “I’ve made the decision that

there is a conflict of interest. I’ve further made the decision that both the filing decision

and the decisions by Mr. Datig to reject the offers of the defense do not bring this case

into the category where the conflict is so severe that the district attorney’s office must

be disqualified.

        “I haven’t seen anything in the decision-making process that would suggest that

either the decision of the filing group or the decision of Mr. Datig were in any way

infected or impacted by their association with these other employees; that other than this

issue related to Mr. Datig, a very careful effort was made to wall off the rest of the

district attorney’s office from Mr. Tahan and his prosecution team, and I can understand

rationally why it is that Mr. Datig stayed on the case up to that point in time. This is his



        6   We quote the ruling given by the trial court, due to the issues raised in this
case.


                                               12
area of expertise. This is what he prosecutes or supervises, in terms of the grant. All of

that makes sense to the Court.

          “I guess at this point, in looking at Gamache, the Court is asking itself, you

know, if there is a conflict of interest, which I have found that there is, and if we are

requiring that a wall be set up in order to insure the integrity of the prosecution of the

case, and that wall is to protect people who are involved with these employees from

being involved in the prosecution of the case, it seems like the wall needs to be intact.

The final piece of that wall is Mr. Datig.

          “When you kind of do a cost benefit analysis on this, keeping Mr. Datig in verses

keeping Mr. Datig out, why keep him in when we could easily keep him out and allow

the district attorney’s office to continue with the prosecution, maintain the integrity of

the prosecution. There is nothing that would prevent the defense from taking a run at

another offer to somebody other than Mr. Datig at this point in time.

          “So, all of those things considered, and in looking at Gamache, in the Court’s

view, the reason that the trial court was sustained in finding that it was appropriate for

San Bernardino to keep the case was that the trial court looked at everything that had

been done and the complete separation of the Barstow office from the San Bernardino

office.

          “So, at this point in time, based on the findings that I have already made, I’m

going to make the further order that from this point on Mr. Datig is to be added to that

group of people that are walled off from the case. [¶] I’m not going to tell the D.A.’s

office who has to supervise the prosecution of the case, but it may not be anyone at the


                                               13
Riverside downtown office. [¶] Mr. Zellerbach, I’m not intervening or making any

orders as to his particular role in this, as I’ve discussed thoroughly with [defense

counsel].

       “In terms of anyone from the Riverside office being involved in this case, in

terms of disposition, trial advice, trial direction, any of those roles that a supervisor

would typically play, I’m ordering that from this point on, the Riverside office, other

than Mr. Zellerbach, will be completely walled off.”

                                       DISCUSSION

       The People contend the trial court erred by ordering Datig, along with the entire

downtown Riverside branch of the DA’s Office, recused from the case. The People

raise three arguments: (1) when the trial court applied the correct legal standard,

regarding the entire district attorney’s office, it found no conflict involving Datig, which

“should have ended the court’s analysis”; (2) the trial court applied an incorrect legal

standard when it conducted the cost-benefit analysis regarding Datig’s recusal; and

(3) Gamache did not create a rule requiring all supervisors of an affected employee to

be recused.

       We begin with the first issue: Whether the trial court should have “ended [its]

analysis” when it found Datig did not have a conflict requiring recusal of the entire

DA’s Office. It is unclear if the People’s argument is focused on the procedural aspect

of the ruling or the factual aspect. As a result, we will address both. We begin with the

procedural aspect—whether the trial court was procedurally correct in continuing with

its analysis.


                                              14
       When a trial court’s decision concerning a recusal motion is challenged due to an

alleged error of law, we apply the abuse of discretion standard of review. (People v.

Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 742, 746 (Humberto).) In

Gamache, our Supreme Court set forth the rule that there is a two-part test when

considering prosecutorial recusal motions. The Supreme Court wrote, “‘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?’”’ [Citation] Where, as here, a

defendant seeks to recuse not just an individual prosecutor but also an entire prosecuting

office, he must make an ‘especially persuasive’ showing. [Citation.]” (Gamache,

supra, 48 Cal.4th at p. 361.)

       Gamache can be understood as setting forth the rule that a more severe conflict is

required to recuse all branches of a county’s district attorney’s office, than is required to

recuse a single branch office or a single attorney. This understanding comes from the

language in Gamache reflecting “‘an especially persuasive’ showing” is required for the

recusal of all branches of an office. The inference to be made is that a lesser showing is

needed when seeking to recuse a small segment of a county’s district attorney’s office.

       Accordingly, when the trial court found the conflict was not so severe as to

require recusal of the entire district attorney’s office, it was proper for the trial court to

continue with its analysis to determine if the conflict was severe enough to require only

Datig’s recusal or the downtown branch’s recusal. So, the trial court was procedurally

correct to continue in its analysis.




                                               15
       We now turn to the factual findings portion of the issue. We again apply the

abuse of discretion standard of review. (Humberto, supra, 43 Cal.4th at p. 746.) An

abuse of discretion occurs when a decision is arbitrary or capricious. (People v. Thomas

(2012) 53 Cal.4th 771, 806.)

       When analyzing the conflict for the county-wide recusal, the trial court found

Datig’s plea offer decisions were not “in any way infected or impacted by [his]

association with these other employees.” We infer from context that the “other

employees” are Rosario and DDA Kuznetsov. However, when the trial court analyzed

the “Datig specific” or “branch specific” recusals, the court concluded Datig needed to

be recused because (1) he was “involved with these employees,” (2) the recusal would

“maintain the integrity of the prosecution,” and (3) it would allow the plea offers to be

considered by a supervisor other than Datig. Thus, the factual findings are problematic.

The trial court found Datig’s conflict did not impact his decision making, and impliedly

found the conflict did impact his decision making.

       While the trial court was correct to continue in its legal analysis after ruling on

the county-wide portion of the motion, the factual findings should not have changed so

drastically, since the motion focused on a single employee—Datig. For example, if

Datig had a personal conflict, it may not be severe enough to recuse all branches across

the county, but it may be severe enough to have Datig recused—that result could be

proper assuming, without deciding, the evidence supported such an outcome. However,

that is not what occurred in this case. In this case the trial court found Datig was not

impacted by the conflict, and then impliedly found Datig was impacted by the conflict.


                                             16
The factual findings are contradictory and cannot be reconciled. It is not logical to

conclude Datig was not impacted by the conflict, and then conclude Datig was impacted

by the conflict. As a result, we conclude the trial court abused its discretion by making

contradictory findings. We will reverse the ruling and direct the trial court to reconsider

the motion.

          Defendant contends the trial court did not make contradictory findings.

Defendant asserts the trial court found Datig’s involvement “had not yet created unfair

proceedings,” but that “going forward there was a likelihood that there would be

unfairness in the proceedings.” In the context of this case, defendant’s interpretation of

the ruling is problematic. There is no evidence reflecting why Datig would suddenly be

more impacted by the conflict than he was when he declined the plea offers. Given the

evidence, one would expect there to be a single factual finding regarding the impact of

the conflict in relation to Datig—either Datig’s decision making has been affected by

the conflict, or it has not been affected. There is nothing indicating Datig would

become more impacted by the conflict in the future than he was when he declined the

plea offers. For example, there is not evidence that DDA Kuznetsov was promoted and

would now have a closer working relationship with Datig than he did in the past.

Therefore, given the record, we are not persuaded by defendant’s interpretation of the

ruling.

          The People have presented two other arguments as to why the trial court’s ruling

was erroneous. We decline to address the remaining arguments because they are moot,

in that we can offer the People no further relief—the trial court must reconsider the


                                              17
motion. (People v. Rish (2008) 163 Cal.App.4th 1370, 1380 [“‘[A] case becomes moot

when a court ruling can have no practical effect or cannot provide the parties with

effective relief’”].)

                                       DISPOSITION

       The recusal order is reversed. The trial court is directed to reconsider the motion,

receiving further evidence if deemed necessary by the trial court.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                         J.


We concur:


McKINSTER
                        Acting P. J.


KING
                                  J.




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