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Melcher v. Superior Court (The People)

California Court of Appeals, Third District, Calaveras

March 28, 2017

SHAWN J. MELCHER, Petitioner,
v.
THE SUPERIOR COURT OF CALAVERAS COUNTY, Respondent THE PEOPLE, Real Party in Interest.

         ORIGINAL PROCEEDING in mandate and prohibition Super. Ct. No. 15F6524. Stay issued. Petition denied. Thomas A. Smith, Judge. (Retired judge of the Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

          No appearance for Respondent.

          Calaveras County Public Defender, Richard Ciummo & Associates, Scott J. Gross, and Steven Rechter for Petitioner.

          NICHOLSON, J.

         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman & Angelo S. Edralin, Deputy Attorney Generals for Real Party in Interest for Real Party in Interest.

         Before the trial court, petitioner Shawn J. Melcher moved to recuse the Calaveras County District Attorney's office from prosecuting a criminal action against him because the victim of his alleged crime is the district attorney's husband. The trial court denied the motion, ruling petitioner failed to show the conflict of interest was so grave he was unlikely to receive fair treatment. Petitioner sought writ relief from our court. We conclude the trial court did not abuse its discretion and we deny the petition. The mere fact the victim and the district attorney are married does not establish a disabling conflict where there is no evidence she has influenced the prosecution, an ethical wall prevents the district attorney from influencing the case, and the district attorney waives any rights to participate in the case as a victim or a member of the victim's family.

         BACKGROUND INFORMATION

         A criminal complaint charged petitioner with two counts of assault with a deadly weapon on a peace officer and other crimes. (Pen. Code, §§ 245, subd. (c); 243, subd. (e)(1); Veh. Code, § 2800.2.) One of petitioner's alleged assault victims is Alan Serpa. Serpa's wife, Barbara M. Yook, is the Calaveras County District Attorney.

         By noticed motion, petitioner moved to recuse the district attorney's office pursuant to Penal Code section 1424 (section 1424).[1] He contended the district attorney's conflict of interest made it unlikely he would receive fair treatment. Petitioner argued that, as the victim's spouse, the district attorney would enjoy rights under Marsy's Law, part of the state Constitution's Victim's Bill of Rights. (Cal. Const., art. I, § 28, subd. (b).) Those rights include the right (1) to have the safety of the victim and the victim's family considered when fixing defendant's amount of bail and release conditions; (2) to provide information to a probation official concerning the offense's impact on the victim and the victim's family and any sentencing recommendations; and (3) to have the safety of the victim, the victim's family, and the general public considered before any parole or other postjudgment release decision is made. (Id. at subds. (b)(3), (10), (16).)

         Petitioner claimed he was unlikely to receive fair treatment because the district attorney will be unable to exercise her discretionary function in an evenhanded matter while being treated as a victim. He asserted if the trial court did not grant his motion, the district attorney would be both prosecutor and victim throughout this case's prosecution. She or one of her deputies will make appearances even though she may be called to testify as a victim on matters relating to bail, custody, sentencing, and postjudgment release.

         The People opposed the motion. Deputy District Attorney Seth Matthews, who executed the complaint against petitioner, submitted the opposition and a declaration under penalty of perjury. He argued petitioner failed to demonstrate the conflict of interest was so grave as to render it unlikely he would receive fair treatment. Matthews asserted he was sufficiently insulated from the district attorney. The district attorney assigned the case to him. She instructed him to make a charging decision and to work under the supervision of the California Attorney General's office. She also informed Matthews she and he would implement a “Chinese wall” (also known as an “ethical wall”) in their office to prevent her from having any input into his decisions on the case.

         Matthews claimed petitioner failed to show the ethical wall would not be effective in eliminating possible unfairness. As directed by the district attorney and because of the ethical wall, Deputy Attorney General Michael Canzoneri supervised Matthews on this case. He approved Matthews' decision to charge petitioner.

         Matthews also argued his employment did not necessarily prevent petitioner from receiving fair treatment. He testified he is not an “at-will” employee, and he can be dismissed only for cause. Thus, any pressure he may feel from the district attorney to get a particular result in this case “seems insignificant” to him.

         Matthews asserted in his points and authorities that when petitioner filed his motion to recuse, he may not have known Matthews was being supervised by a deputy attorney general. Matthews stated on the record on March 27, 2015, that he was being supervised by ...


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