Filed 5/7/13 P. v. Wallace CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE



THE PEOPLE,
       Plaintiff and Respondent,
v.
                                                          A134614
AARON WALLACE,
                                                          (Marin County
       Defendant and Appellant.
                                                           Super. Ct. No. SC171212A)


         Following denial of defendant‘s motion to recuse the Marin County District
Attorney‘s Office and the deputy assigned to his case, he was convicted by a jury of
residential burglary (§ 459) and assault with a deadly weapon (§ 245, subd. (a)(1)).1 He
claims on appeal that the trial court erroneously denied his recusal motion (§ 1424). We
conclude that the denial of the recusal motion was not a prejudicial abuse of discretion,
and affirm the judgment.
                                          STATEMENT OF FACTS2
         Defendant was convicted of offenses that occurred at a two-level apartment
residence occupied by his sister, Saprina Wallace, mother Rosemary Wallace, sister
Terressa Harris, and nephew Labron Wallace, and visited frequently by others in the


1
  All further statutory references are to the Penal Code.
2
  In this appeal defendant only challenges the denial of his motion to recuse the prosecutor.
Therefore, our recitation of the facts will focus on the facts pertinent to the issue presented,
rather than the underlying crimes.
family.3 Testimony was presented, primarily by defendant‘s niece Tequoia McDonald,
that on the morning of July 20, 2010, defendant appeared at the apartment on two
occasions and engaged in altercations with Harris, apparently over some of defendant‘s
belongings in the residence. Early the same afternoon, defendant returned to the
apartment and kicked open the front door. From the upper level of the residence
McDonald heard the ―bang‖ and ran to the stairs. She observed defendant in the living
room below ―holding a tennis racket and a knife‖ in his hands, ―as if he was gonna hit
someone with‖ them. Defendant appeared to McDonald to be in a state of mind ―that he
was going to come in and kill‖ her or Saprina. Defendant approached Saprina, who was
seated on the couch. Saprina ran upstairs, as did McDonald. They declared that they
were ―calling the police.‖ Both Saprina and McDonald were ―shocked and scared.‖
After pausing at the front door, defendant ran out of the apartment.
       While defendant was in custody in the lockdown unit of the Marin County Jail
based on the offenses charged in the present case, he threw urine at a deputy sheriff and
inmate, an act known as ―gassing,‖ which was charged in a separate case (case No. SC
172093A) as a violation of section 243.9, subdivision (a). He also received numerous
other disciplinary reports while in county jail.
       Defendant was involuntarily treated with antipsychotic medication and found
mentally incompetent to stand trial. He was transferred to Atascadero State Hospital on
September 23, 2010. The trial court thereafter found that he was restored to competency,
and following a preliminary hearing he was charged in case No. SC171212A with four
felony counts: residential burglary (§ 459), assault with a deadly weapon (§ 245, subd.
(a)(1)), making a criminal threat (§ 422), and vandalism (§ 594, subd. (b)(1)), along with
prior convictions and a prior prison term served.
       The case then proceeded before several jury panels. On April 21, 2011, the first
panel was dismissed during voir dire examination and a mistrial was declared after some
of the prospective jurors inadvertently observed defendant escorted to a restroom in a

3
 For the sake of clarity and convenience we will refer to Saprina Wallace and others in the
Wallace family by their first names.

                                                2
holding cell. A second jury was selected, but defendant repeatedly engaged in disruptive
conduct that included direct threats against the prosecutor, Geoff Iida. Defense counsel
moved for a mistrial and declared doubt as to defendant‘s competency. The trial court
denied the motion for mistrial and found no evidence of defendant‘s lack of competence
within the meaning of section 1368, but removed defendant from the courtroom and
proceeded with the case with defendant sequestered in a holding cell. When four of the
fourteen seated jurors subsequently expressed that they could not set aside the disruptive
conduct they previously witnessed by defendant, or act fairly and impartially, the court
declared a mistrial on April 27, 2011.
       On June 17, 2011, the defense moved pursuant to section 1424 to recuse the entire
Marin County District Attorney‘s office and deputy district attorney Geoff Iida
individually as prosecutor in this case and case No. SC172093A. Defendant asserted that
his prior verbal outburst directed at Iida, who would then be a ―complaining witness‖ in a
prosecution against him in a ―yet unfiled PC § 422 case‖ (the section 422 case) created an
―obvious conflict‖ and prevented the office and Iida from acting as a ―fair and impartial
prosecutor.‖
       The declaration of defense counsel Jon Rankin filed in support of the motion for
recusal stated that on June 16, 2011, Iida disclosed that a report of defendant‘s prior
―outburst in court‖ had been referred to the Attorney General‘s Office for ―possible
prosecution as a violation of Penal Code § 422.‖ According to Rankin‘s declaration, Iida
expressed his opinion that both the section 422 case, which occurred in court and on the
record, and the charged violation of section 243.9, subdivision (a), committed in jail and
essentially admitted by defendant, were ―strong‖ cases. Iida also proposed to Rankin a
―package‖ disposition of the three cases: possible dismissal of the present case, in
exchange for guilty pleas to the No. SC172093 case and the not-yet-pending section 422
case. Rankin responded that as a possible witness he was ―ethically precluded‖ from
representing defendant in the section 422 case.
       In opposition to the motion the prosecution presented Iida‘s declaration, in which
he described the district attorney‘s office‘s standard practice of seeking to ―settle cases,‖

                                              3
and ―to attempt to globally resolve all pending and potentially filed charges.‖ Iida
declared that on the morning of June 16, 2011, he suggested a disposition to Rankin in
which defendant would enter guilty pleas to the No. SC172093A case and the potential
criminal threat charge in exchange for dismissal of the charges in the present case, which
included ―strike‖ offenses. Later that same day, Rankin told Iida that he did not speak to
defendant about the proposed settlement, and indicated he could not ethically participate
in global settlement discussions given his status as a potential witness in any criminal
threat prosecution against defendant. Iida denied that he characterized any of the cases as
strong or weak, or that he accused Rankin of ―doing a ‗disservice‘ ‖ to his client by
refusing to discuss settlement.
         Following a hearing the trial court denied the recusal motion. The court found that
defendant failed to demonstrate an ―actual conflict of interest in the circumstances‖
presented. The court was ―not convinced‖ that defendant would fail to ―get fair
treatment‖ if Iida and the Marin County District Attorney‘s Office ―persist[] or continue[]
on as the prosecutor in this case.‖
         A third jury was empanelled and the case proceeded to trial and a jury verdict on
June 24, 2011. The jury found defendant guilty of vandalism as charged in count four,
but was unable to reach a verdict on the remaining two counts. As to counts one and two,
the court declared a mistrial. The prosecution dismissed count three, the charge of
making a criminal threat, due to a perceived lack of supporting evidence. The prior
conviction allegations were subsequently found true by the court.
         A second trial on the remaining two charges was held in September of 2011. The
jury found defendant guilty of burglary and assault with a deadly weapon. At the
sentencing hearing on September 20, 2011, upon the prosecutor‘s request the court
dismissed case No. SC172093A, with a Harvey4 waiver. The court stayed a prior prison
term allegation and imposed an aggregate sentence of 13 years in state prison.



4
    People v. Harvey (1979) 25 Cal.3d 754.

                                              4
                                       DISCUSSION
       In this appeal defendant argues that the trial court erred by denying his motion to
disqualify the Marin County District Attorney‘s Office and Geoff Iida individually from
prosecuting the case before us. He maintains that an impermissible conflict is illustrated
by the prosecutor‘s effort to seek ―a guilty plea to a felony criminal threats charge
(§ 422),‖ which was still under investigation by the Attorney General‘s Office, ―wherein
the prosecutor was the sole victim.‖ Defendant asserts that the prosecutor‘s offer to settle
the case for violation of section 422 in which he was the victim constituted representation
of ―himself,‖ and ―diverged from the prosecution duty ‗to seek justice in a fair and
evenhanded manner,‖ as required by section 1424. He claims the ―trial court‘s failure to
recuse the prosecutor constitutes structural constitutional error that is reversible per se.‖
       We commence our review with recognition of the fundamental principle that
―[p]rosecutors are public fiduciaries. They are servants of the People, obliged to pursue
impartially in each case the interests of justice and of the community as a whole. When
conflicts arise that compromise their ability to do so, they can and should be recused.‖
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 709, fn. omitted.)
       ―The disqualification of public prosecutors is governed by Penal Code section
1424, which provides that a motion to recuse a prosecutor ‗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.‘ [Citations.]‖ (County of Santa Clara v. Superior
Court (2010) 50 Cal.4th 35, 54, fn. 11.) ―Section 1424 provides that motions to
disqualify the district attorney 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.‘ ‗[W]hether the prosecutor‘s conflict is characterized as actual or only
apparent, the potential for prejudice to the defendant—the likelihood that the defendant
will not receive a fair trial—must be real, not merely apparent, and must rise to the level
of a likelihood of unfairness. Thus section 1424 . . . does not allow disqualification
merely because the district attorney‘s further participation in the prosecution would be
unseemly, would appear improper, or would tend to reduce public confidence in the

                                               5
impartiality and integrity of the criminal justice system.‘ [Citation.]‖ (Stark v. Superior
Court (2011) 52 Cal.4th 368, 415.)
       ― ‗Section 1424 sets out the standard governing motions to recuse a prosecutor:
such a motion ―may not be granted unless the evidence shows that a conflict of interest
exists that would render it unlikely that the defendant would receive a fair trial.‖
[Citation.] 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?‘ ‖
[Citations.]‘ ‖ (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 727–728.) For
recusal to be granted, the ―defendant must demonstrate that fair treatment by the office is
unlikely.‖ (People v. Cannedy (2009) 176 Cal.App.4th 1474, 1480.)
       ―Under the first part, a court must determine whether a conflict exists, that is,
whether ‗the circumstances of a case evidence a reasonable possibility that the DA‘s
office may not exercise its discretionary function in an evenhanded manner.‘ [Citations.]
If such a conflict exists, the court must further determine whether the conflict is ‗ ― ‗so
grave as to render it unlikely that defendant will receive fair treatment during all portions
of the criminal proceedings.‘ ‖ ‘ [Citation.] Thus, the first half of the inquiry asks only
whether a ‗reasonable possibility‘ of less than impartial treatment exists, while the second
half of the inquiry asks whether any such possibility is so great that it is more likely than
not the defendant will be treated unfairly during some portion of the criminal
proceedings.‖ (Haraguchi v. Superior Court, supra, 43 Cal.4th 706, 713.)
       ―[D]efendants bear the burden of demonstrating a genuine conflict; in the absence
of any such conflict, a trial court should not interfere with the People‘s prerogative to
select who is to represent them.‖ (Haraguchi v. Superior Court, supra, 43 Cal.4th 706,
709.) ―Disqualification under Penal Code section 1424 is not permissible ‗merely
because the district attorney‘s further participation in the prosecution would be unseemly,
would appear improper, or would tend to reduce public confidence in the impartiality and
integrity of the criminal justice system. [Citations.]‘ [Citation.] Thus, whether the
prosecutor‘s conflict is actual or apparent, it is only disqualifying when the potential for
prejudice to the defendant is itself real. Indeed, the potential for prejudice must rise to

                                                6
the level of a likelihood of unfairness.‖ (Spaccia v. Superior Court (2012) 209
Cal.App.4th 93, 106.)
        ―Moreover, ‗[r]ecusal of an entire district attorney‘s office is an extreme step. The
threshold necessary for recusing an entire office is higher than that for an individual
prosecutor.‘ [Citation.] An entire prosecutor‘s office should not be recused unless it is
necessary to assure a fair trial. The showing of a conflict necessary to justify so drastic a
remedy must be especially persuasive.‖ (Spaccia v. Superior Court, supra, 209
Cal.App.4th 93, 106–107.) The ― ‗[d]isqualification of an entire prosecutorial office from
a case is disfavored by the courts, absent a substantial reason related to the proper
administration of justice.‘ [Citation.]‖ (People v. Petrisca (2006) 138 Cal.App.4th 189,
195.)
        ―Appellate review of a ruling on a recusal motion ‗involves both the substantial
evidence test and examination for abuse of discretion. Factual issues are resolved under
the substantial evidence test: whether there is substantial evidence to support factual
determinations reached by the trial court. [Citations.] Once the pertinent factual issues
are settled, the question whether the trial court‘s ruling should be upheld is determined
under the deferential abuse of discretion test. [Citations.]‘ [Citation.]‖ (People v. Jenan
(2006) 140 Cal.App.4th 782, 792; see also People v. Superior Court (Humberto S.)
(2008) 43 Cal.4th 737, 746.)
        Even if we assume defendant satisfied the first prong of the section 1424
disqualification test – that is, a reasonable possibility of less than impartial treatment –
the second half of the inquiry requires a finding that any such possibility is so great it is
more likely than not the defendant will be treated unfairly. The record fails to establish
the likelihood of unfair treatment of defendant, and in any event we find that defendant
did not suffer any actual prejudice.
        We disagree with defendant‘s premise that erroneous denial of his recusal motion
constitutes a denial of due process and structural error, at least under the circumstances
presented here. The California Supreme Court has concluded ―that not all erroneous
denials under Penal Code section 1424 result in due process violations . . . .‖ (People v.

                                               7
Vasquez (2006) 39 Cal.4th 47, 51 (Vasquez).) The court in Vasquez declared: ―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.‖ (Id. at p.
70.) Prejudice from ―such a state law error . . . must instead be evaluated under the
standard of People v. Watson [(1956)] 46 Cal.2d 818 (Watson).‖ (Id. at p. 66.)
       Here, we are not assessing either the likelihood of unfairness to defendant or
prejudice that existed in the potential prosecution of him for the criminal threat offense
committed against the prosecutor. Rather, we consider the conflict and prejudice
associated with the prosecutor‘s representation of the People in this separate case for
assault and burglary now before us on appeal. Defendant‘s claim of unfairness is based
primarily on the plea offer from Iida that would have dismissed the present charges in
exchange for guilty pleas in the other cases. How defendant suffered likelihood of
unfairness or prejudice from the prosecutor‘s offer to dismiss the charges in the present
case – which subjected him to much greater punishment than the charged offenses in the
other pending and yet unfiled criminal actions – is at the very least an entirely speculative
matter. The defendant must show the actual likelihood of unfairness, not merely the
potential for unfair treatment and actual prejudice. (Haworth v. Superior Court (2010)
50 Cal.4th 372, 387; People v. Vasquez, supra, 39 Cal.4th 47, 56.) The ―possibility that a
prosecutor might be influenced does not alone establish the requisite likelihood or
probability that a defendant will be treated unfairly.‖ (People v. Gamache (2010) 48
Cal.4th 347, 363.)


                                               8
       Nothing in the record persuades us that Iida‘s experience with defendant or the
conflict that may have resulted from it played a role in his handling of the case to
defendant‘s detriment. (Cf. People v. Vasquez, supra, 39 Cal.4th 47, 56–58.) To the
extent that any such inference may be drawn from the record, it negates a finding of
unfairness or prejudice. The actions of the prosecution during the course of the present
action did not demonstrate the slightest unfairness that deprived defendant of a
fundamentally fair proceeding. (People v. Gamache, supra, 48 Cal.4th 347, 365.) The
district attorney‘s office was prepared to dismiss this case if defendant agreed to a global
plea to other, less serious crimes. When no plea disposition was reached, the case
proceeded to a jury trial and guilty verdicts without any hint of bias or unfairness on the
part of the prosecutor appearing in the record. In fact, following the first trial the
prosecution dismissed the charge of making a criminal threat, and at the sentencing
hearing following the burglary and assault verdicts, case No. SC172093A was dismissed
upon the prosecution‘s motion.
       Defendant has not established either a conflict that created a likelihood of
unfairness in his trial or the reasonable probability that a result more favorable to him
would have been reached in the absence of denial of his recusal motion. We conclude
that the trial court did not abuse its discretion by declining to order recusal. (People v.
Gamache, supra, 48 Cal.4th 347, 366; Spaccia v. Superior Court, supra, 209 Cal.App.4th
93, 107–108.)
       Accordingly, the judgment is affirmed.




                                               9
                                      __________________________________
                                      Dondero, J.


We concur:


__________________________________
Margulies, Acting P. J.

__________________________________
Banke, J.




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