The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A 1980 capital case conviction was reversed 25 years later after the Ninth Circuit Court of Appeals determined that the prosecutor, now a superior court judge in the same county, knowingly presented false evidence and failed to correct the record. (Hayes v. Brown (9th Cir. 2005) 399 F.3d 972.) Petitioner Blufford Hayes, Jr., seeks to recuse the San Joaquin County District Attorney's Office from prosecuting his retrial, alleging that Judge Terrence Van Oss (Van Oss) remains personally embroiled in the current prosecution and the deputy now assigned to the case has requested the judge's input, solicited additional false evidence, vindictively filed charges under the "three strikes" law, and engaged in other conduct demonstrating the office is not prosecuting petitioner in an even-handed manner. The trial court denied petitioner's request for an evidentiary hearing to prove his allegations and denied his motion to recuse the district attorney's office.
Petitioner seeks a peremptory writ of mandate commanding the trial court to recuse the San Joaquin County District Attorney's Office (the DA) from prosecuting him, and to enter an order granting the motion or, alternatively, to hold an evidentiary hearing on the motion. Although the DA urges us to deny the petition, he acknowledges that "petitioner's entitlement to relief hinges on the resolution of factual disputes" and, alternatively, asks us to order the trial court to hold an evidentiary hearing. We agree the trial court abused its discretion by refusing to hold an evidentiary hearing based on the voluminous facts and legal reasoning set forth below. The petition is therefore granted in part and denied in part.
In 1981 a jury rejected petitioner's defense of self-defense and convicted him of the first degree felony murder of Vinod Patel, burglary, and robbery, and found true two special circumstances. (Hayes v. Brown, supra, 399 F.3d at p. 977.) The prosecution's key witness was Andrew James. James, a friend of petitioner who was living at the motel where the murder occurred, testified that petitioner told him he had "'offed'" the motel manager. (Id. at pp. 975-976.) According to James, petitioner explained that after the manager awakened him, the manager "'swung on him'" so petitioner "'did the do with him.'" (Id. at p. 976.) James also testified that petitioner told him he "'tore'" up the office looking for money. (Ibid.)
The jury did not know that the prosecutor, Terrence Van Oss, had made a secret deal with James's attorney whereby James's pending felony charges would be dismissed in return for his testimony. (Hayes v. Brown, supra, 399 F.3d at pp. 978--979.) The court summarized the magistrate's pertinent findings and the evidence in support of those findings. (Id. at pp. 979-980.)
In a file entry dated February 7, 1980, James's attorney wrote: "Van Oss s[ai]d [he] didn't want to make[a] deal on this case on [the] record, but wil1 guarantee that [James'] O.R. [own recognizance release] will be reinstated. He wants to keep case felony for now so if [James] splits they can extradite. After Hayes over, [James] can P[lead] G[uilty] to misd[emeanor] for straight prob[ation]-- no jail." (Hayes v. Brown, supra, 399 F.3d at p. 979, bracketed material supplied by district court.) Later, the attorney wrote, "'"the case will be disposed of after Hayes trial" and "case to be dismissed on 12/15/81."'" (Ibid.) In an evidentiary hearing on another case, Van Oss testified he had no reason to dispute the validity of the lawyer's notes and conceded that he "'"must have told him."'" (Ibid.)
The Ninth Circuit Court of Appeals opinion summarized the evidence in support of the findings. "Although felony charges against James were pending, the State assisted him in moving to San Diego. James later moved to Florida. The government paid for his airplane transportation from Florida to California to testify in the Hayes trial. James freely traveled to California, apparently without fear that he would be placed in custody on the pending felony charges. The notes from James's attorney indicate that a court appearance on his charges was scheduled for October 20, 1981, but was continued until November 17, 1981. James testified at the Hayes trial on October 29, 1981. The jury returned a guilt-phase verdict on November 16, 1981. The next day, the chief prosecutor in the Hayes trial, Terrence Van Oss, appeared at the continued arraignment scheduled for James. The transcript of the hearing reflects there was a discussion off the record with the judge, after which the arraignment was continued until December 15, 1981. James's counsel's notes on November 17, 1981, said that 'case to be dism[issed] on 12/15/81. We need not appear.' The jury returned its verdict of punishment by death on November 25, 1981. On December 15, 1981, the charges against James were dismissed, and the State paid for James's safe return to Florida by air." (Hayes v. Brown, supra, 399 F.3d at p. 979.)
Van Oss thereafter misled the trial judge and the jury that there had been no negotiations whatsoever about James's testimony and pending charges. The court concluded: "Thus, the record is clear that: (1) before the Hayes trial, the State had made a deal with James's attorney for the dismissal of pending felony charges after his testimony; (2) the State specifically represented to the trial judge that there was no such deal; (3) the State elicited sworn testimony from James at trial that there was no such deal, both on direct and re-direct examination; and (4) the State failed to correct the record at trial to reflect the truth." (Hayes v. Brown, supra, 399 F.3d at p. 980.)
Van Oss bitterly contests the Ninth Circuit's characterization of his conduct. But his response to the Ninth Circuit opinion was not the first time he interceded in the post-conviction proceedings. On December 16, 1986, Van Oss contacted the California Supreme Court directly, rather than through the Attorney General, regarding the prosecutorial misconduct alleged in petitioner's then pending habeas petition. In his letter, he expressed that he was "acutely concerned about the proportions to which this matter has grown . . . . I want this matter cleared up and am willing to do whatever is necessary to do so." The Supreme Court denied the petition on the merits. (People v. Hayes (1990) 52 Cal.3d 577, 613, fn. 4.)
After the Ninth Circuit's en banc ruling in 2005, Van Oss excoriated the Attorney General for failing to petition for a writ of certiorari. On April 12, 2005, he wrote, "I would like to know why the Attorney General decided not to petition for review of this decision. . . . [¶] This is particularly puzzling in view of the material misstatement of fact supporting the latest decision." With increasing fervor he continued: "[I]t is extremely troubling that this egregiously mischievous result will be allowed to stand as precedent for future cases, especially since it relies on a demonstrably false premise. [¶] While I can live with the unwarranted damage to my reputation this astonishing error has caused, the [Attorney General] does not appear to ...