California Court of Appeals, Third District, Calaveras
SHAWN J. MELCHER, Petitioner,
THE SUPERIOR COURT OF CALAVERAS COUNTY, Respondent THE PEOPLE, Real Party in Interest.
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.)
appearance for Respondent.
Calaveras County Public Defender, Richard Ciummo &
Associates, Scott J. Gross, and Steven Rechter for
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.
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.
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.
noticed motion, petitioner moved to recuse the district
attorney's office pursuant to Penal Code section 1424
(section 1424). 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).)
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.
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.
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
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.
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 ...