California Court of Appeals, Second District, Sixth Division
Superior Court County of Ventura No. 201013013 Patricia M. Murphy, Judge
Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief Deputy for Petitioner.
No appearance for Respondent.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez, Deputy Attorney General, for Real Party in Interest.
OPINION AND ORDER
HOFFSTADT, J. [*]
A criminal defendant seeking to disqualify a prosecutor is not entitled to an evidentiary hearing unless, at a minimum, he makes a prima facie showing that recusal is warranted, and does so using only signed affidavits containing competent evidence. (Pen. Code, § 1424, subd. (a)(1)); Spaccia v. Super. Ct. (2012) 209 Cal.App.4th 93, 111 (Spaccia).)  Defendant Joshua Graham Packer (Packer) argues that this procedure violates his constitutional right to compulsory process by denying him an evidentiary hearing at which he can subpoena those persons who will not sign affidavits or who cannot be located. He further contends that the trial court erred in finding that he did not make a prima facie showing. We reject both contentions, and accordingly deny Packer's petition for writ of mandate seeking to overturn the trial court's denial of an evidentiary hearing and denial of his motion to recuse the prosecutor in his case.
FACTS AND PROCEDURAL HISTORY
I. Pending Charges
Packer is charged with three counts of first-degree murder (§§ 187, 189) in the May 2009 deaths of Davina Husted, her husband Brock and their unborn child. The information also charges several enhancements. The People are seeking the death penalty. The Ventura County District Attorney's office is prosecuting the case, and Deputy Chief Michael Frawley ("prosecutor") is the lead prosecutor.
II. Motion to Recuse the Prosecutor
A. The Motion
Packer moved to recuse the prosecutor under section 1424, and objected on compulsory process grounds to the statute's requirement that he use "affidavits of witnesses who are competent to testify to the facts set forth in the affidavit" to make his prima facie showing. The motion and objection were filed after the prosecutor disclosed that his two adult children, Kyle and Elizabeth, had participated in the same youth group as Packer. Packer sought recusal on three grounds: (1) Packer would be calling Kyle and Elizabeth as witnesses for the defense during any penalty phase of the trial; (2) Elizabeth once dated Thomas Cathcart (Cathcart), who would be a witness for the prosecution and defense; and (3) the prosecutor "appears to have known" Davina Husted through his former wife, Lisa West (West).
B. The Evidence Presented
In support of his recusal motion, Packer submitted 54 pages of affidavits from 7 people, along with 350 pages of attachments. In opposing Packer's motion and compulsory process objection, the Ventura County district attorney's office and the Attorney General's office submitted 12 pages of affidavits from two people, along with 68 pages of attachments.
1. The prosecutor's relationship to Packer through his adult children
The prosecutor's adult children did not attend the same high school as Packer, but participated with Packer and more than 50 others in a youth group called "Young Life." The prosecutor's current wife was a co-chair of the local chapter of Young Life between 2001 and 2003. Between 2001 and 2008, while Kyle or Elizabeth participated, Young Life events were sometimes held at the prosecutor's home, and Packer attended some of those gatherings. The prosecutor was present for some of these events, but he stayed "in the background" and never interacted with Packer.
Kyle participated in Young Life from 2001 through 2006. Kyle took a snowboarding trip to Utah with this group in 2003 or 2004, and also attended a summer camp in Northern California in 2005. On each trip, Kyle was housed in the same cabin as Packer and between eight and twenty-five other boys. At the summer camp, Packer told Kyle and others he had a religious breakthrough. Kyle, Packer and others appeared in group photos taken at these events. Kyle did not have any one-on-one conversations with Packer. After Packer was charged in this case, Kyle signed up for a "Prayers for Josh" webpage because Kyle's friend asked him to do so, because Kyle wondered if the charges were true, and because Kyle prayed for Packer's soul.
Elizabeth participated in Young Life while she was in high school, from 2004 through 2008. She attended the same summer camp in 2005 that Kyle and Packer attended, and also appeared in group photos from that camp. In 2005 or 2006, Elizabeth and two other girls hosted a MySpace webpage that contained a photograph of all three girls and Packer in a silly pose.
Although more than 50 children participated in Young Life with Packer, he named Kyle and Elizabeth as witnesses to present mitigation evidence in the penalty phase of his trial. He did this because, in his view, "a jury would likely be more favorably ...