Thursday, September 1, 2022
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Court of Appeal:
D.A. Properly Recused Over Anti-Black Lives Matter Stance
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed an order booting a county’s district attorney from the prosecution of a case against persons on charges stemming from conduct during a march in protest to the slaying of George Floyd Jr. by Minneapolis police officers, declaring that his stance antagonistic to the Black Lives Matter movement justify the recusal.
Upholding the order by San Luis Obispo Superior Court Judge Matthew G. Guerrero disqualifying the county’s district attorney, Dan Dow, and his deputies, Div. Six said, in an unpublished opinion, that “[s]ubstantial evidence supported the trial court’s determination that Dow and his office were not likely to treat respondents fairly.”
The defendants/respondents are six college students who were among about 300 participants in a July 21, 2020 demonstration on the streets of the City of San Luis Obispo and on Highway 101. Those charged include the leader of the protest, Tianna Arata, who faces 13 misdemeanor counts.
Trial Court’s Order
In granting Arata’s motion, in which the other defendants joined, Guerrero said:
“The men and women charged here are entitled to a prosecution not clouded by political or personal advantage to the prosecutor. This is especially pointed in a case where the defendants are protesting injustice and systemic bias. The court’s finding of an apparent and actual conflict of interest make it unlikely that the defendants would receive fair treatment during all portions of the criminal proceedings.”
The judge, who was 2016 president of California Attorneys for Criminal Justice, took note in his Dec. 11, 2020 order of a campaign fundraising email purportedly sent by Dow’s wife, Wendy Dow, saying, in part:
“Dan needs to know more than ever that you support him and he really needs your financial support so he can keep leading the fight in SLO County against the wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community. We had planned his kickoff election campaign fundraiser to be this month, but due to COVID and all the crazy protest activity, we were not able to pull it off.”
The words used were “inflammatory,” Guerrero declared, remarking:
“These are extrajudicial statements made to potential jurors in an attempt to sway them and to get them to make financial contributions.”
He commented:
“The Sept. 4, 2020 email establishes a clear conflict of interest….[B]y delivering this fundraising email to potentially tens of thousands of people immediately after the filing of charges, Mr. Dow sought political and professional benefit and campaign contributions in conjunction with the prosecution of the above-entitled cases.”
Appeal From Order
The Office of Attorney General appealed, as did Dow’s office. The attorney general’s brief argues:
“The trial court abused its discretion by ordering disqualification of the District Attorney’s Office based upon unsupported factual findings and incorrect legal conclusions. Respondents failed to establish that there was an actual and disqualifying conflict of interest.”
Guerrero relied on a “patchwork of unreliable hearsay,” the brief contends. It insists that the exhibits “do not constitute competent evidence” under Penal Code, §1424, the recusal statute, asserting that “the trial court’s reliance on incompetent evidence is emblematic of the flawed nature of its decision.”
It points out that “the record is devoid of affidavits from District Attorney Dow, Wendy Dow, or anyone else who might have personal knowledge about whether he knew of or approved the email” considered by Guerrero.
Appeal Court’s Decision
Div. Six’s opinion was signed by Presiding Justice Arthur Gilbert, Justice Kenneth Yegan, and retired Justice Steven Z. Perren, sitting on assignment.
The jurists said of the exhibits:
“Defense counsel offered to authenticate the exhibits by way of live testimony from his co-counsel (who prepared the attorney affidavit required by section 1424), from the reporters who wrote the news stories, or from the District Attorney himself. The trial court found this was not necessary because the statements attributed to Dow and his appearances with anti-BLM commentators were not in dispute. The author of the fundraising email (Dow’s wife, Wendy) and the email’s contents were likewise not in dispute. The court observed the email was sent from a campaign address well known among those in San Luis Obispo’s small legal community and bore the Dow campaign’s name and FPPC number. It was not necessary to formally authenticate the exhibits at an evidentiary hearing under these circumstances.”
The facts that were adduced, the opinion says, support the order, explaining:
“The trial court was careful to consider the District Attorney’s statements in context with the contemporaneous prosecutorial decisions. He filed misdemeanor charges against respondent Arata on September 4; the same day, he explained his decision in a lengthy post on a conservative Facebook page called PRotect Paso. Dow prefaced the post by recognizing there was a group of people who were upset’ he did not charge Arata with felonies. This was also the same day Wendy Dow urged prospective donors to help her husband ‘keep leading the fight against the wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety.’ The court’s finding that a targeted fundraising appeal of this nature created a conflict of interest is neither arbitrary nor capricious, as appellants contend, but a deliberate and logical application of section 1424 to the facts.”
Free-Speech Rights
Gilbert, Yegan and Perren commented:
“We emphasize the District Attorney did not cede his rights to freedom of speech and association when he entered public office….His exercising of these rights, however, cannot deprive those he prosecutes of their own right to a fundamentally fair trial. Our trial courts are best positioned to determine when this is likely to occur….This case is no exception. We decline to substitute our judgment for that of a trial court familiar with the social, legal, and political dynamics of San Luis Obispo County.”
On March 16, 2021, Div. Six ordered the case shifted to the Appellate Division of the San Luis Obispo Superior Court, noting that misdemeanors were being prosecuted. The Office of Attorney General petitioned for a rehearing on the ground that one of the defendants, Robert Anthony Lastra Jr., was charged with felony vandalism—throwing a skateboard at a vehicle, shattering the back window—as well as misdemeanor false imprisonment.
Div. Six on March 25, 2021, vacated its order shunting the case to Superior Court’s Appellate Division, saying that “[t]he appeal in Lastra’s case involves a charge punishable as a felony and is properly heard in this court” and that “[t]o secure uniformity of decision in this case, we shall retain the appeals filed in this court” in the other cases.
The case is People v. Lastra, B309895.
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