IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Appellant,

Case No. G051696

v.
SCOTT EVANS DEKRAAI,
Defendant and Respondent.

Orange County Superior Court, Case No. 12ZF0128

The Honorable Thomas M. Goethals, Judge

APPELLANT'S OPENING BRIEF

KAMALA D. HARRIS

Attorney General of California

GERALD

A. ENGLER

Chief Assistant Attorney General

JULIE L. GARLAND
Senior Assistant Attorney General
HOLLY D. WILKENS

Supervising Deputy Attorney General

THEODORE M. CROPLEY
Deputy Attorney General
State Bar No. 181364
600 West Broadway, Suite 1800
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2286
Fax: (619) 645-2012
E-mail: Theodore.Cropley@doj.ca.gov
Attorneys for Appellant

TABLE OF CONTENTS
Page

Statement of Appealability ........................................................................... I

Introduction ................................................................................................... !
Statement of Case and Facts ......................................................................... 2
Argument .................................................................................................... I 0
The trial court abused its discretion in recusing the entire
Orange County District Attorney's Office from prosecuting
the penalty phase ofDekraai's trial because Dekraai failed to
demonstrate that the District Attorney has a "conflict of
interest" that renders it unlikely that Dekraai will receive a
fair trial ............................................................................................ I 0

A.

Legal standards .......................................................... II

B.

The Orange County District Attorney's Oftice

has no conflict of interest warranting recusal.. .......... l2

I.

The Orange County District Attorney's

Office does not suffer from a conflict of
interest ............................................................ 13

2.

Even assuming that the Orange County

District Attorney's Office suffers from a
conflict of interest, any such "conflict"
does not prt:iudice Dekraai's right to a
fair trial ........................................................... I 7

Conclusion .................................................................................................. 27

TABLE OF AUTHORITIES
Page
CASES

Brady v. Maryland
(1963) 373 U.S. 83 ............................................................... 14, 15, 19,24
Bullen v. Superior Court
(1988) 204 Cal.App.3d 22 ...................................................................... 21
Hambarian v. Superior Court
(2002) 27 Cal.4th 826 ............................................................................ 18
Haraguchi v. Superior Court
(2008) 43 Cal.4th 706 ............................................................ 11 et passim
Hollywood v. Superior Court
(2008) 43 Cal.4th 721 ...................................................................... 11, 16
In re Brown
(1998) 17 Cal.4th 873 ............................................................................ 14
In re Lee G.
(1991) 1 Cal.App.4th 17 ......................................................................... 26
Massiah v. United States
(1964) 377 U.S. 201 ................................................................. 4, 5, 12, 18
Mendibles v. Superior Court
(1984) 162 Cal.App.3d 1191 .................................................................. 19
Michigan v. Lucas
(1991) 500 U.S. 145 ............................................................................... 20
People ex rel. Clancy v. Superior Court
(1985) 39 Cal.3d 740 .............................................................................. 24
People ex ret. Younger v. Superior Court (Rabaca)
(1978) 86 Cal.App.3d 180 ...................................................................... 27
People v. Badgett
(1995) 10 Ca1.4th 330 ............................................................................ 19

11

TABLE OF AUTHORITIES
(continued)
Page

People v. Brophy
(1992) 5 Cal.App.4th 932 ....................................................................... 20
People v. Bryant
(2014) 60 Cal.4th 335 ............................................................ 11 et passim
People v. Cannedy
(2009) 176 Cal.App.4th 1474 .................................................................20
People v. Conner
(1983) 34 Cal.3d 141 .............................................................................. 21
People v. Edwards
(1993) 17 Cal.App.4th 1248 ................................................................... 20
People v. Eubanks
(1996) 14 Ca1.4th 580 .......................................................... 12, 19, 21,27
People v. Gamache
(2010) 48 Cal.4th 347 ............................................................................ 22
People v. Gonzales
(1994) 22 Cal.App.4th 1744 ................................................................... 20
People v. Hamilton
(1989) 48 Cal.3d 1142 ...................................................................... 18, 20
People v. Hayes
(1990) 52 Cal.3d 577 .............................................................................. 19
People v, Jenkins
(2000) 22 Ca1.4th 900 ............................................................................ 19
People v. Merritt
(1993) 19 Cal.App.4th 1573 ................................................................... 20
People v. Millwee
(1998) 18 Cal. 4th 96 .............................................................................. 20

iii

TABLE OF AUTHORITIES
(continued)
Page

People v. Parmar
(200 1) 86 Cal.App.4th 781... ............................................................ 18, 26
People v. Superior Court (Greer)
(1977) 19 Cal.3d 255 .............................................................................. 21
People v. Superior Court (Humberto S.)
(2008) 43 Ca1.4th 737 ............................................................................ 21
People v. Turner
(1994) 8 Cal.4th 137 .............................................................................. 20
People v. Vasquez
(2006) 39 Cal.4th 47 .............................................................................. 21
People v. Wimberly
(1992) 5 Cal.App.4th 773 ....................................................................... 19
People v. Zamora
(1980) 28 Cal.3d 88 ................................................................................ 20
Taylor v. Illinois
(1988) 484 u.s. 400 ............................................... :............................... 20
Young v. United States ex rel. Vuitton et Fils S.A.
(1987) 481 u.s. 787 ............................................................................... 18

iv

TABLE OF AUTHORITIES
(continued)
Page
STATUTES

Evidence Code
1040 ....................................................................................................... 6
1042 ....................................................................................................... 6
Penal Code
1054.5 .................................................................................................. 20
1424 ....................................................................................... 1 et passim

CONSTITUTIONAL PROVISIONS

United States Constitution

VI Amendment ......................................................................................... 4

STATEMENT OF APPEALABILITY

This appeal by the Attorney General of California, following the grant

ofDekraai's motion to recuse the Orange County District Attorney's Office
("OCDA"), is authorized by Penal Code section 1424. 1 Section 1424
states, in pertinent part, "An order recusing the district attorney from any
proceeding may be reviewed by extraordinary writ or may be appealed by
the district attorney or the Attorney General."
INTRODUCTION

In January 2014, Dekraai filed a motion to recuse the OCDA alleging

that the OCDA and the Orange County Sheriffs Office ("OCSO") were
intentionally failing to disclose to defense counsel in multiple cases details
about the use of confidential informants in the jail. While the recusal
motion was being litigated, the OCDA agreed that Dekraai's rights had
been violated in connection with the use of an informant and voluntarily
stipulated that evidence obtained through the informant would not be used
in the case. Additionally, Dekraai pled guilty as charged to eight counts of
premeditated first degree murder, and admitted the multiple-murder special
circumstance allegation, and one count of attempted murder. After
extensive evidentiary hearings, the trial court granted Dekraai's motion and
recused the OCDA from the case. The trial court erroneously relied on
systemic problems within the OCSO and misconduct solely attributable to
the OCSO in this case to find that the OCDA had a cont1ict of interest that
likely would deny Dekraai a fair trial. Furthermore, recusing the OCDA is
not an appropriate remedy as a matter of law for the "conflict" identified by
the trial court.
1

Hereafter, all statutory references are to the Penal Code unless

otherwise indicated.

The law is resoundingly clear that prosecutorial misconduct, even

egregious misconduct, cannot form the basis to recuse a district attorney.
Moreover, even if it could be an appropriate remedy for prosecutorial
misconduct, recusing the OCDA will not ameliorate the systemic problems
within the OCSO identified by the trial court and, more importantly, have
no bearing on Dekraai receiving a fair trial in this case.
Accordingly, the trial court abused its discretion in recusing the
OCDA and its order must be reversed.
STATEMENT OF CASE AND FACTS

In the middle ofthe day on October 12, 2011, 41-year-old Scott Evans
Dekraai entered a hair salon on Pacific Coast Highway in Seal Beach armed
with three handguns. About fifteen people were inside the salon, including
Michelle Marie Fournier, an employee at the salon and Dekraai's ex-wife
and mother of their eight-year-old child. Dekraai then walked through the
salon and began shooting customers and employees. As some people
managed to run or hide, within a few minutes, stopping only to reload,
Dekraai shot his ex-wife, six other women, and the owner of the salon, in
the head and chest: customers Michele Daschenbach Fast, Lucia Bernice
Kondas, Hattie Stretz, salon employees Victoria Buzzo, Laura Webb,
Christy Lynn Wilson, and salon owner Randy Lee Fannin. Only 73-yearold Hattie Stretz would survive her wounds. The others shot inside the
salon all died -most at the scene and two later at the hospital. As Dekraai
left the salon, he shot David Caouette to death as he sat inside his car in the
parking lot. Dekraai, still wearing body armor and in possession of
multiple weapons and ammunition, was apprehended by police who
stopped him while driving his pickup truck about a half mile from the
salon. The Orange County District Attorney decided to seek the death

penalty in the deadliest mass killing in Orange County history. (5 CT

1160-1162.) 2
On October 14, 2011, the OCDA filed a nine-count complaint in case
number 11 CF2781 charging Dekraai with eight counts of murder and one
count of attempted murder. The complaint also alleged a multiple-murder
special circumstance. (5 CT 1114.) An indictment against Dekraai
reflecting the same charges and special circumstance allegation was filed
on January 12,2012, under case number 12ZF0128. (1 CT 5.)
Several days after being taken into custody, Dekraai was placed in a
cell in the medical module in the Orange County jail. In the cell next to
him was Fernando Perez, a Mexican Mafia leader turned confidential
informant who was assisting the Santa Ana Gang Task Force on Mexican
Mafia cases. (22 RT 4843-4851, 4857-4858, 4869-4872.) After Perez
befriended Dekraai, Dekraai made several incriminating statements to
Perez, which Perez wrote down and gave to members of the jail's "Special
Handling" unit. After reviewing Perez's notes, the decision was made to
wire Dekraai's cell in the hopes of obtaining more incriminating statements
from him. (5 CT 1119-1121.)
In early 2014, Dekraai filed lengthy motions wherein he requested
that the trial court exclude evidence obtained from a jailhouse informant,
dismiss the death penalty, and recuse the OCDA from prosecuting his case.
These requests were based on Dekraai's belief, after reviewing thousands of
pages of discovery turned over by the OCDA the previous year, that the
OCDA and members ofthe OCSO were intentionally failing to disclose to
defense counsel details surrounding the use of confidential informants in
the jail, including the background and prior history of such informants and
2

This portion of the Clerk's Transcript contains the Orange County

District Attorney Press Release dated October 14, 2011.

the circumstances of the movements of these informaots within the jail.

Specifically, Dekraai alleged that Perez, a notorious informant who had
been assisting the federal government in its investigations of prison gangs,
was intentionally placed in a cell next to him, while he was represented by
counsel, in order to obtain statements from him as to his charged crime,
in violation of his Sixth Amendment rights. Delcraai also alleged that
discovery pertaining to Perez's status as an informant, including his
previous work as an informant and his expectation as to any future benefits
for assisting law enforcement, were not turned over to his counsel. (See
1 CT 1-271; 2 CT 272-515; 3 CT 516-608; 4 CT 816-1090; see also 11 CT
2750-2849.)
The OCDA filed responses opposing Dekraai's motions. (4 CT 10911112; 5 CT 1113-1352; see also 11 CT 2850-2913.) The Attorney General
filed a response opposing the recusal of the OCDA. (5 CT 1353-1371; see
also 11 CT 2914-2925.)
In a wide-ranging four-month long hearing on Delcraai's motions, the
trial court heard testimony from scores of witnesses, mainly members of the
OCDA and local law enforcement. Most of the testimony dealt with cases
other than the instant case and concerned the discovery practices and use of
informants in those cases. 3 However, the specific testimony elicited during
the evidentiary hearing as to the circumstances surrounding the statements
Dekraai made to Perez, and the subsequent wiring ofDelcraai's cell, led the
OCDA to concede that the actions oflaw enforcement violated Dekraai's
Sixth Amendment rights pursuant to Massiah v. United States (1964)
377 U.S. 201. Therefore, while maintaining that Delcraai's placement in a
3

The trial court and counsel referred to this evidence as "1101-type

evidence" (see, e.g., 9 RT 2179, 2283-2284; 10 RT 2337-2338, 2356, 23582361) because the court believed such evidence could prove relevant to the
claims in Dekraai's motions. (9 RT 2283-2284; 10 RT 2358-2361.)

cell next to Perez was coincidental, the OCDA nevertheless agreed not to
seek to admit at trial any statements made by Dekraai to Perez while
housed in the jail. (10 RT 2337-2338,2341-2342, 2353-2354; 6 CT 1404.)
The trial court later made this concession an order of the court thereby
remedying the Massiah violation and rendering Dekraai's Massiah motion
moot. (11 CT 2934-2937.)
During the course of the hearing on Dekraai's motions, he pled guilty
as charged to eight counts of premeditated first degree murder, and
admitted the multiple-murder special circumstance allegation, and one
count of attempted murder. This plea was made to the charges as set forth
in the indictment and was not conditioned upon any offer from the OCDA.
(13 RT3094-3106; 6 CT 1417-1418.)
On August 4, 2014, the trial court denied Dekraai's motions to recuse
OCDA and to dismiss the death penalty as a potential punishment for his
commission of eight special circumstance murders. The trial court
recognized that, although it had heard extensive testimony relating to the
conduct and practice of law enforcement officials in other cases, the "broad
scope" of the testimony did not alter its responsibility to focus on this
particular case. In denying the recusal motion, the trial court noted "[i]t is
not the appropriate function of this court at this time to attempt to fashion a
global remedy related to all of the prosecutorial misconduct issues raised by
the evidence it has heard." (II CT 2926-2927.)
On November 7, 2014, Dekraai filed a motion to reconsider the trial
court's denial of his motions to dismiss the death penalty and to recuse the
OCDA. (14 CT 3540.) This reconsideration motion was based on
Dekraai's counsel's discovering, as a result of discovery provided by
OCDA, that there were "secret" records in the jail, referred to as "TRED"
records, which, among other things, documented the reasons why inmates
were moved around inside the Orange County jail. These "TRED" records

includedrecords documenting the movements of Perez and Dekraai.

Dekraai' s counsel alleged that he was never provided discovery of such
records, nor did any member of law enforcement mention these records
during their testimony, even when specifically asked about the existence of
any records which would document such movements. (12 CT 3239-3238;
13 CT 3239-3539; 14 CT 3540-3610; see also 14 CT 3665-3711.)
The OCDA filed a response opposing Delaaai's motion for
reconsideration. (14 CT 3652-3664.) The Attorney General filed a
response opposing Dekraai's motion to reconsider the denial of his recusal
motion. (14 C 3644-3651.)
Upon the agreement ofDekraai's counsel and the OCDA, the trial
court reopened the evidentiary hearing for further testimony. (See 28 RT
6139-6140.) During this second evidentiary hearing in February 2015,
members and former members of the OCSO's "Special Handling" unit
testified that there were records kept in the Orange County jail, referred to
as "TRED" records, that documented, among other things, the movements
of inmates inside the jail and, in some instances, the reasons why certain
inmates were moved. Although the testimony of OCSO personnel differed
somewhat as to the type and extent of any training they received as to these
records, most testified to their belief that such records were confidential
internal jail documents and were not to be shared with other agencies,
including the OCDA, and some testified that these records could not even
be "discussed in court." Some deputies testified that if asked about
"TRED" records in court, their understanding was that they were to invoke
an evidentiary privilege pursuant to Evidence Code sections 1040 and
1042. When the law enforcement witnesses who had testified during the
prior evidentiary hearing were questioned by the trial court as to why
during their previous testimony no such privilege was invoked in response
to questions about inmate movement within the jail, these deputies testified

that such questioning either did not make them think of "TRED" records, or
that their belief that such .records were confidential guided their answers.
(28 RT 6144-6273, 6276-2389; 29 RT 6390-6488, 6490-6583; 30 RT 65856737, 6739-6761, 6763-6777.)
Although the "TRED" records for Dekraai and Perez document the
movement of these inmates into and within the medical module ("Mod-L")
of the Orange County jail, they do not shed light on the reasons for any
such movements. The very last entry on Perez's "TRED" record is dated
September 16, 2011, three and a half weeks before Dekraai committed his
murders, and simply indicate that he was relocated to Mod-L. (14 CT
3715, referencing Exhibit A112.) The "TRED" records for Dekraai
indicate that he was first placed in Mod-L on October 13,2011, and then
was moved from one cell to another in that module, a cell adjoining that of
Perez, at the request of a nurse on October 15, 2011. (1 CT 3714,
referencing Exhibit A113.) On October 21, 2011, former "Special
Handling" Deputy Zachary Bieker made a notation in Dekraai's "TRED"
record that Dekraai was not to be moved from his current cell regardless
of medical or mental health requests and that any movement must be
authorized by "Special Handling." (14 CT 3714, referencing Exhibit
A113.) During the evidentiary hearing, Deputy Bieker explained that he
had made this notation because of the recording device that had been placed
in Dekraai's cell. 4 (28 RT 6204-6220, 6238-6240.)
4

In the trial court's August 2014 denial ofDekraai's recusal motion,

the court found the allegation of deliberate placement of Perez next to
Dekraai was not sustained by the evidence. (11 CT 2930.) Although the
trial court ultimately granted Dekraai's recusal motion in its March 2015
order, there is no indication in the court's subsequent order that the content
of the "TRED" records altered this finding. While the court did not address
this issue, instead focusing on the systemic problem with the concealment
by the OCSO of the "TRED" records generally (14 CT 3761-3768), nothing
(continued ... )

Both parties and the Attorney General filed post-evidentiary hearing

briefing. (14 CT 3712-3760.)
On March 12, 2015, the trial court, focusing.specifically on the
"supplemental evidence" of the "TRED" records, recused the OCDA from
further prosecuting this case. (14 CT 3761.) The trial court found that
despite the existence of "TRED" records for over a decade and despite the
fact that "Special Handling" and "classification" deputies in the jail had
access to these records to obtain information about inmate movements,
"Special Handling" deputies Tunstall and Garcia never mentioned these
records during their initial testimony "despite fielding inquiries that should
logically have triggered responses about the existence and content ofTRED
records .... " (14 CT 3762.) Specifically, the trial court found not credible
Tunstall's testimony during his most recent court appearance that "it 'never
crossed his mind' to look at the TRED records or to reveal their existence
to counsel or this court." (14 CT 3762.) The court also found Garcia's
testimony that he was "trained" not to discuss TRED records (14 CT 37623763) not credible. The court concluded that Tunstall and Garcia "have
either intentionally lied or willfully withheld material evidence from this
court during the course oftheirvarious testimonies." (14 CT 3763-3764.)
The court went on to state its finding that "these sheriffs deputies ...
intentionally failed to tell anyone outside of a limited number of sheriffs
personnel, at any time, about the existence of the TRED record system,
even when such information was called for by questions asked of them
under oath in court." (14 CT 3764.)

( ... continued)
in the "TRED" records contradicts or undermines the trial court's finding in
its earlier order.

However, the trial court also specifically found that "[t]here is no

direct evidence before the court to support the suggestion that the District
Attorney or any ofhis deputies was actually aware of the existence of the
'TRED' record system until after the completion of the first phase of this
hearing and the court's initial ruling" (14 CT 3764) and that there was no
evidence that "the District Attorney actively participated in the concealment
of this infonnation from the defense and the court." (14 CT 3765.)
Nevertheless, the trial court found that for discovery purposes, the
OCDA committed prosecutorial misconduct since "the individual
prosecutor is presumed to have knowledge of all information gathered in
connection with the government's investigation" and the OCDA had failed
to comply with its discovery obligations in this case by not disclosing to the
defense any information regarding "TRED" records. (14 CT 3764.) Based
on this misconduct, the trial court recused the OCDA from further
prosecuting this case:
The District Attorney has a conflict of interest in this case
which has actually deprived this defendant of due process in the
past. And given this ongoing conflict, the District Attorney's
continued participation in the prosecution will likely prevent this
defendant from receiving a fair trial in the future. After a period
of what can at best be described as benign neglect concerning
the actions of his law enforcement partners, the District Attorney
cannot or will not in this case comply with the discovery orders
of this court and the related constitutional and statutory
mandates that guarantee this defendant's right to due process
and a fair trial. Therefore, the defendant's motion to recuse the
office of the Orange County [D]istrict Attorney must be and is
granted.
(14 CT 3766.)
The trial court went on to define this "conflict of interest":

In this case, the District Attorney's conflict of interest is

not imaginary. It apparently stems from his loyalty to his law
enforcement partners at the expense of his other constitutional
and statutory obligations. In the face of this conflict of interest

the evidence demonstrates that, in this case, the District

Attorney cannot or will not insure compliance by other team
members with the orders of this court. The defendant has as a
result of this conflict of interest suffered a personal due process
violation that has deprived him of a trial for well over two years
and will likely continue to do so in the future. As a result, the
District Attorney and all of his deputies must be recused.
(14 CT 3768, emphasis in original).
While again denying Dekraai's related motion to dismiss the death
penalty, the trial court imposed additional sanctions beyond the previously
ordered exclusion ofDekraai's statements to Perez and ordered that, as a
result of discovery violations, the evidence the prosecution would be
allowed to present at the penalty phase trial would be limited to "that which
1) directly relates to [Dekraai's] conduct on October 12,2011 in Seal
Beach; 2) statements the defendant made before he was booked into the
Orange County jail; and 3) victim impact evidence." (14 CT 3761-3768.)
The Attorney General filed a timely notice of appeal from the order
recusing the OCDA. (14 CT 3769-3770.)
ARGUMENT
THE TRIAL COURT ABUSED ITS DISCRETION IN RECUSING
THE ENTIRE ORANGE COUNTY DISTRICT ATTORNEY'S
OFFICE FROM PROSECUTING THE PENALTY PHASE OF
DEKRAAI'S TRIAL BECAUSE DEKRAAI FAILED TO
DEMONSTRATE THAT THE DISTRICT ATTORNEY HAS A
"CONFLICT OF INTEREST" THAT RENDERS IT UNLIKELY
THAT DEKRAAI WILL RECEIVE A FAIR TRIAL

The trial court abused its discretion in recusing the entire OCDA from
prosecuting the penalty phase ofDekraai's trial based on misconduct by the
OCSO as creating a conflict for the OCDA that likely would deny Delaaai
a fair trial. The trial court's reliance on evidence of systemic problems
within the OCSO that led to discovery violations by the OCDA in this
case, and other misconduct solely attributable to the OCSO during the

10

evidentiary hearing conducted in this case, cannot- as a matter of law support its finding that the OCDA suffers from a conflict of interest in this
case. Furthermore, even assuming that the OCDA suffers from the
"conflict" identified by the trial court, recusing the OCDA was an abuse of
discretion because - as a matter of law - recusal is not a proper remedy for
the circumstances presented by this case.

A.

Legal Standards

Recusal of a district attorney is permissible only when the evidence

shows "a conflict of interest exists that would render it unlikely that the
defendant would receive a fair trial." (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711; 1424, subd. (a)(1).) In other words, the statute sets
forth "a two-part test": (l) is there a conflict of interest because the
circumstances of the case demonstrate a reasonable possibility that the
district attorney may not exercise his discretionary function in an
evenhanded manner?; and, (2) if so, is that conflict "so grave as to render it
unlikely the defendant will receive fair treatment during all portions of the
criminal proceedings." (Haraguchi v. Superior Court, supra, 43 Cal. 4th at
pp. 711,713, internal quotation marks omitted.)
"Recusal is not a mechanism to punish past prosecutorial misconduct.
Instead, it is employed if necessary to ensure that future proceedings will be
fair. '[S]ection 1424 does not exist as a free-form vehicle through which to
express judicial condemnation of distasteful, or even improper,
prosecutorial actions."' (People v. Bryant (2014) 60 Ca1.4th 335, 375,
quoting Hollywood v. Superior Court (2008) 43 Ca1.4th 721, 735 [italics in
original].) Absent a defendant establishing "a likelihood offuture
misconduct by the district attorney, recusal is unwarranted." (Ibid.)
A trial court's order granting a recusal motion is reviewed for an
abuse of discretion, while its finding of facts are upheld if supported by

11

substantial evidence. (Haraguchi v. Superior Court, supra, 43 Cal.4th at

pp. 711-712.) While the trial court's conclusions oflaw are reviewed
de novo, its application of law to facts are upheld unless arbitrary and
capricious. (Ibid.; see also People v. Eubanks (1996) 14 Ca1.4th 580, 594595 [a recusal order is reviewed under both the substantial evidence test
and the abuse of discretion standard].)

B.

The Orange County District Attorney's Office Has

No Conflict of Interest Warranting Recusal

As set forth above, recusal is a purely statutory remedy that may not
be granted unless a district attorney has a conflict of interest so grave that
the defendant is unlikely to be treated fairly. In other words, recusal can
only be granted when the evidence establishes an actual disabling conflict
of interest of the district attorney's office that renders it unlikely the
defendant could receive a fair trial. As the trial court recognized when it
denied Dekraai' s motion to recuse the OCDA in August 2014, the OCDA
suffered no conflict of interest in prosecuting Dekraai's penalty phase trial
based upon discovery violations and violation ofDekraai's Massiah rights.
(11 CT 2926-2937 .) After De1aaai sought reconsideration in November
2014, based on information supplied to the defense by the OCDA, and after
the OCDA agreed to the reopening of the evidentiary hearing, the trial court
learned of misconduct by the OCSO in concealing an OCSO record system
("TRED" records) that contained information pertinent to use of informants
and placement of inmates within the Orange County jails. With the only
additional factual basis supporting Dekraai's recusal motion being
misconduct by the OCSO relating to the "TRED"records, the trial court
found that a conflict of interest existed and that this conflict was grave
enough to require recusal of the entire OCDA. (14 CT 3761-3768.)

12

The trial court's reliance on past misconduct by the OCSO regarding

the concealing of "TRED" records to find that the OCDA has a conflict of
interest in this case was incorrect as a matter of law because there is no
reasonable possibility that the OCDA can fail to exercise its discretionary
function in an evenhanded manner based upon circumstances of which it is
unaware. Furthermore, even if the OCDA suffers from the "conflict"
identified by the court, this "conflict" does not make it likely that Dekraai
will receive unfair treatment during his penalty phase trial given that the
evidentiary sanctions already imposed by the trial court purged any taint of
misconduct from his trial and ensured that he would suffer no prejudice.
Moreover, even ignoring that the law is clear that recusal is not an
appropriate remedy for prosecutorial misconduct, recusing the OCDA will
not ameliorate the systemic problems within the OCSO identified by the
trial court and, more importantly, will not have any bearing on Delcraai
receiving a fair trial in this case.
1.

The Orange County District Attorney's Office

does not suffer from a conflict of interest

As set forth above, a district attorney suffers from a conflict of interest

only when the circumstances of the case demonstrate a reasonable
possibility that the district attorney may not exercise his discretionary
function in an evenhanded manner. No such circumstances exist in this
case.
The failure to disclose the existence of the "TRED" records
documenting the movements of inmates was committed by members of the
OCSO, not the OCDA, which, up until the time of the evidentiary hearing
on Delcraai's reconsideration motion, was unaware of the existence of these
records. In fact, the trial court specifically found that the OCDA was

13

unaware of such records and had no role in concealing these records from
counsel or the court. (14 CT 3764-3765.)
If this case involved resolving appropriate sanctions for violating a
criminal defendant's discovery rights, as opposed to whether the statutory
remedy of recusal is properly imposed, then it could be appropriate to
impute knowledge to the OCDA based upon the knowledge of members of
investigative agencies who are considered part of the "prosecution team"
for purposes of discovery obligations. (See In re Brown (1998) 17 Cal.4th
873, 879, 881 [prosecutor's duty under Brady to disclose material
exculpatory evidence applies to evidence the prosecutor, or the prosecution
team, knowingly possesses or has the right to possess and prosecution team
includes both investigative and prosecutorial agencies and personnel; and
important determination is whether person or agency is acting on the
government's behalf].) Constructive lmowledge of misconduct by the
OCSO, however, is not sufficient to demonstrate an actual conflict within
the meaning of section 1424.
Here, misconduct by members of the OCSO that was unknown to the
OCDA cannot logically establish that the OCDA suffers from a conflict of
interest that will prevent it from conducting its responsibilities in a manner
that interferes with Dekraai's right to a fair trial. Constructive knowledge
that would suffice in the context of a Brad/ violation has no place in
determining whether a conflict exists for purposes of ordering recusal of a
county's elected district attorney because such a conflict can logically only
be premised on what the district attorney actually !mows, as that is the only
!mowledge that can influence his discretion.
Here, the premise underlying the conflict identified by the trial court,
that there is a relationship of loyalty between the OCDA and the OCSO that
5

Brady v. Maryland (1963) 373 U.S. 83.

14

creates a conflict of interest, is belied by the fact.that the misconduct by the

OCSO in failing to disclose the "TRED" records came to light after OCDA
turned over information to the defense, and joined in seeking to reopen the
evidentiary hearing. Although the court found that OCSO Deputies
Tunstall and Garcia lied or misled the court about "TRED" records, the trial
court also expressly found the OCDA did not know about these records
until after the evidentiary hearing and denial of the recusal motion. In light
of the deception by the OCSO extending to deceiving the OCDA, the
suggestion that what occurred in this case evidences a loyalty amongst law
enforcement agencies is untenable. While the lack of knowledge by the
OCDA would not alter the analysis of whether the material was
discoverable under Brady, it does weigh against a finding of a conflict of
interest.
If Tunstall and Garcia lmowingly concealed information about
"TRED" records even while being questioned in court under oath, there is
no basis upon which the court could infer that inquiries by the OCDA
would have prompted Tunstall and Garcia to disclose these records to the
prosecution team. While the trial court's finding of a conflict is based on
"loyalty" to law enforcement partners (14 CT 3767-3768), this evidence
suggests no such relationship between these agencies. While the trial court
understandably sought to redress the egregious misconduct by the OCSO
disclosed in the reopened evidentiary hearing, that misconduct cannot serve
as a basis for recusal of the OCDA.
The trial court aptly recognized in its August 20 14 order that actual
misconduct by the OCDA in failing to provide discovery relating to use of
informants in the jail was not sufficient to find a basis for recusal of the
OCDA. While the trial court's subsequently learning of misconduct
confined to the OCSO involving non disclosure of an OCSO record system
is understandably something the trial court sought to redress, given that the

15

OCDA did not even know the record system existed, this subsequent
development cannot serve as a basis for recusal.
While the evidence adduced during the hearings on Dekraai's motions
raise serious and troubling concerns as to the behavior and actions of law
enforcement officers, this misconduct fails to implicate the concerns sought
to be addressed by the recusal statute, namely the possibility of unfair
treatment as to this defendant. To the contrary, while concerns about
systemic misconduct linger, those concerns actually undermine the premise
of differential treatment which lies at the heart of the recusal remedy.
A conflict under section 1424 exists whenever the circumstances of the case
demonstrate a reasonable possibility that the district attorney may not
exercise his or her discretionary function in an evenhanded manner.
(Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.)
[S]ection 1424 does not exist as a free- form vehicle through
which to express judicial condemnation of distasteful, or even
improper, prosecutorial actions .... section 1424 offers no relief
for actions simply because they appear, or are, improper.
[Citations.] The Legislature has closely defined the limits of
judicial authority to recuse prosecutors, and we must observe
them .... A defendant must identify, and a court must find, some
conflict of interest that renders it unlikely defendant will receive
a fair trial.
(Hollywood v. Superior Court, supra, 43 Cal. 4th at p. 735, emphasis in
original, fn. omitted.)
Accordingly, the first prong of section 1424's two-part test for recusal
has not been met. Here, the OCDA does not have any conflict of interest.
The OCDA had no knowledge of the factual basis that the trial court
necessarily relied on as the lynchpin of its decision to recuse the OCDA.
It is axiomatic that these circumstances cannot demonstrate a reasonable

possibility that the district attorney may not exercise his discretionary
function in an evenhanded manner based on misconduct it was not aware of

16

and did not condone. Thus, the trial court abused its discretion in recusing
theOCDA.
2.

Even assuming that the Orange County District

Attorney's Office suffers from a conflict of
interest, any such "conflict" does not prejudice
Dekraai's right to a fair trial

Even if a district attorney suffers from a conflict of interest, recusal is

not warranted unless that conflict is "so grave as to render it unlikely that
the defendant will receive fair treatment during all portions of the criminal
proceedings." (Haraguchi v. Superior Court, supra, 43 Cal.4th at p. 713.)
Here, even if the OCDA suffers from the "conflict" identified by the trial
court, such a conflict does not require recusal as the evidentiary sanctions
imposed by the court eliminate any potential for prejudice to Dekraai
during his penalty phase trial. This holds true even if this "conflict" stems
from misconduct committed by members of the OCDA because recusal is
an improper remedy for past prosecutorial misconduct. Given the
evidentiary sanctions imposed by the trial court, which rectifY any violation
ofDekraai's personal rights, and that recusing the OCDA will not remedy
the systemic problems arising from the OCSO's failure to disclose records
nor have any bearing on Dekraai receiving a fair trial, any "conflict" by the
OCDA does not render it unlikely Dekraai will receive unfair treatment
during his penalty phase trial.
In this case, even if law enforcement personnel had intentionally
placed Dekraai and Perez in adjoining cells for the purpose of Perez
gathering information from Dekraai as to his current crimes, and further
assuming that law enforcement personnel lied about their involvement in
the movement of these two inmates, lied about the reasons for these
movements, and lied about the existence of any records relating to these
movements, the proper sanction for such misconduct has already been

17

ordered by the trial court. By granting Delcraai's Massiah motion, the trial
court has properly suppressed any evidence resulting from Dekraai's
statements to Perez. By further limiting the prosecution's potential
aggravating evidence to the circumstances of the crime, Dekraai' s prebooking statements, and victim impact evidence, any personal right on the
part of Delcraai that had been violated by law enforcement has been

appropriately remedied by the exclusion of evidence resulting from such

violation. With that violation cured, there exists no potential for prejudice
to Dekraai, and thus no conflict of interest on the part of the OCDA that
"rise[s] to the level of a likelihood of unfairness" during his penalty phase
trial. (Hambarian v. Superior Court (2002) 27 Ca1.4th 826, 834.)
This holds true even if the "conflict" identified by the trial court stems
from actual misconduct on the part of members of the OCDA. Both the
California Supreme Court and the United States Supreme Court have
consistently held that prosecutorial misconduct, even egregious misconduct,
cannot be a basis to recuse the district attorney. The United States Supreme
Court has observed that allegations of prosecutorial overreaching should be
dealt with on their own terms, separate from the rubric of recusable bias or
conflict: "It is true that a prosecutor may on occasion be overzealous and
become overly committed to obtaining a conviction.... [S]uch
overzealousness 'does not have its roots in a conflict of interest."' (Young

v. United States ex ret. Vuitton et Fils S.A. (1987) 481 U.S. 787, 807, fn. 18,
citation omitted.) Rather than being a remedy for misconduct, the
disqualification of a prosecutor is a means to protect against unfair trials.

(People v. Hamilton (1989) 48 Cal. 3d 1142, 1156 ["The recusal of an entire

prosecutorial office is a serious step, imposing a substantial burden on the
People, and the Legislature and the courts may reasonably insist upon a
showing that such a step is necessary to assure a fair trial"]; People v.

Parmar (200 1) 86 Cal.App.4th 781, 797 ["the interest to be served by a

18

motion to disqualify a prosecutor is the defendant's interest in fair

treatment"]; see People v. Eubanks, supra, 14 Cal.4th at p. 594 [reiterating
rule that court may exercise its discretion to disqualifY a prosecutor only
when he suffers from a conflict so grave as to render it unlikely the
defendant will receive fair treatment].; see also People v, Jenkins (2000)
22 Ca1.4th 900, 966-968; People v. Badgett (1995) 10 Cal.4th 330, 344350, 355-357 .)
Here, even if the purported misconduct of members of the OCSO can
be imputed to the OCDA, insofar as the "prosecution team" did not turn
over evidence of "exculpatory value" in the form of "TRED" records, and
even if such discovery violations constituted a violation of its obligations
under Brady v. Maryland, supra, 373 U.S. 83, the actions or inactions of
the OCDA must be and have been addressed with remedies tailored to the
harm caused by such violations, not by depriving the citizens of the
services of their chosen representative in the absence of any showing he
will not exercise his discretion evenhandedly. Where a party has failed to
timely produce Brady material pretrial or has failed to comply with
California's statutory rules of discovery, "a trial court may, in the exercise
of its discretion, 'consider a wide range of sanctions' in response to the
prosecution's violation." 6 (People v. Wimberly (1992) 5 Cal.App.4th 773,
792, quoting Mendibles v. Superior Court (1984) 162 Cal.App.3d 1191,
1198.) But absent a conflict of interest, recusal under section 1424 is not
one of the options.

In any event, even assuming materiality, there can be no Brady

violation when the material in question has been disclosed pretrial or in
time for its effective use at trial. Indeed, a Brady violation occurs only
where there is a reasonable probability that had the evidence been disclosed
to the defense, the result of the proceeding would have been different. (See
People v. Hayes (1990) 52 Cal.3d 577, 612.)

19

Indeed, a court confronted with such circumstances has at its disposal

a host of remedies and sanctions other than recusal to deal with discovery
violations, including fines, contempt, suppression, continuance, instructions
to the jury, or even, in the most egregious circumstances, mistrial or
dismissal. (Pen. Code, 1054.5; see, e.g., Michigan v. Lucas (1991)
500 U.S. 145, 152; Taylor v. Illinois (1988) 484 U.S. 400, 414; People v.
Zamora (1980) 28 Cal.3d 88, 96-103; People v. Gonzales (1994)

22 Cal.App.4th 1744, 1756-1757; People v. Edwards (1993)

17 Cal.App.4th 1248, 1263; People v. Brophy (1992) 5 Cal.App.4th 932,
937.) As set forth above, the trial court here not only excluded any
"tainted" evidence, it imposed severe additional sanctions limiting the
People's evidence at the penalty trial.
Courts will not recuse an entire prosecutorial agency, or even a
specific prosecutor, for misconduct absent "other evidence of overriding
bias" that would warrant disqualification. 7 (People v. Millwee (1998)
18 Ca1.4th 96, 123, citing People v. Turner (1994) 8 Cal.4th 137, 162-163
[finding recusal was properly denied due to lack of evidence that the
prosecutor who had committed reversible error during defendant's first trial
would commit misconduct at retrial]; People v. Hamilton, supra, 48 Cal. 3d
at pp. 1155-1156 [finding that the prosecutor's ex parte contacts with a
represented defendant did not warrant recusal absent evidence of actual
antagonism toward the defense]; see also People v. Merritt (1993)
19 Cal.App.4th 1573, 1577-1583 [reversing order recusing entire District
7

This is true even if, as the trial court here found (30 RT 67896790, 6794-6795), this "misconduct" has led to a lessening of confidence in
the propriety of the district attorney's office to prosecute the case. (See
People v. Cannedy (2009) 176 Cal.App.4th 1474, 1486 [recusal is not
appropriate based upon "the trial court's feeling that it would be cleaner or
better for the Attorney General to handle the case" or even "more
appropriate"].)

20

Attorney's Office, despite the fact that a district attorney investigator

(1) had withheld possibly exculpatory information from the defense (and
the prosecution), (2) had engaged in "sexual impropriety" toward a material
witness, (3) was "guilty of the appearance of 'gross misconduct,' if not an
actual crime," and (4) might have been a witness in the case].)
As the foregoing illustrates, where misconduct threatens a defendant's
right to a fair trial, the remedy must address the specific concerns raised by
the misconduct. Moreover, as the California Supreme Court has observed,
the cases upholding recusal have generally identified an "incentive for the
prosecutor to elevate some other interest over the interest in impartial
justice, should the two diverge." (People v. Superior Court (Humberto S.)
(2008) 43 Cal.4th 737, 754; see, e.g., People v. Vasquez (2006) 39 Cal.4th
47 [deputy district attorney handling prosecution admitted that the fact that
defendant's mother and step-father worked for the district attorney's office
influenced her exercise ofprosecutorial discretion]; People v. Eubanks,
supra, 14 Cal.4th 580 [receipt of income from the victim created an
incentive to pursue prosecution beyond what the merits might warrant];
People v. Conner (1983) 34 Cal. 3d 141 [status of deputy district attorney as
victim and witness created an incentive to pursue prosecution beyond what
the merits might warrant]; People v. Superior Court (Greer) (1977)
19 Cal.3d 255 [status of district attorney's office employee as witness,
relative of the victim, and beneficiary of the prosecution created an
incentive to pursue prosecution beyond what the merits might warrant];
Bullen v. Superior Court (1988) 204 Cal.App.3d 22 [district attorney's
formal representation of the crime victim in writ proceedings challenging
defense access to the crime victim's house created an interest (its duty of
loyalty to its client) in the writ proceedings potentially at odds with the
prosecution's duty to seek justice in a fair and evenhanded manner].) And
even where such an interest exists, "the possibility that a prosecutor might

21

be influenced does not alone establish the requisite likelihood or probability

that a defendant will be treated unfairly." (People v. Gamache (2010)
48 Ca1.4th 347, 363.)
Here, even if any actions or omissions by members ofthe OCDA
could be deemed misconduct, their actions do not warrant recusal of the
OCDA because there has been no evidence or even suggestion of
"overriding bias" or antagonism toward Dekraai, or of any private interest
external to the job itself. Without such evidence, any appearance of .
impropriety is irrelevant, and utterly insufficient to require recusal of the
district attorney. (See Haraguchi v. Superior Court, supra, 43 Ca1.4th at
p. 719 ["Only an actual likelihood of unfair treatment, not a subjective
perception of impropriety, can warrant a court taking the significant step of
recusing an individual prosecutor or prosecutor's office"], italics in
original.)
The foregoing principles are illustrated by People v. Bryant, supra,
60 Ca1.4th 335. In Bryant, defense counsel filed a pretrial motion to recuse
the entire Los Angeles County District Attorney's Office ("LADA") based
on both a failure to provide discovery and on the delayed disclosure of the
unredacted interview notes of a deputy district attorney. Although the
prosecution had provided redacted copies of these notes, the fact that the
notes had been redacted was not apparent from the copies. (ld. at pp. 371372.) After hearing testimony from a number ofLADA supervisors and
line deputies, the trial court "granted the recusal motion, finding that there
had been 'an intentional, deliberate holding back of evidence,' and that
essentially all the high-level supervisors in the office had been involved.
Part of the trial court's concern was that during its review of [a different]
issue the court had asked the prosecutors whether there was any other
information that it should know. No one had mentioned the notes or the
internal conflict." (!d. at p. 372.)

22

After the Attorney General appealed the trial court's ruling, the Court
of Appeal concluded that the failure to disclose the complete notes did not
support recusal of the entire office. The California Supreme Court denied
the defendants' petition for review. (!d. at p. 373.)
After being convicted of first degree murder and sentenced to death,
the defendants appealed to the California Supreme Court and claimed,
among other issues, that "permitting the LADA to prosecute [them]
violated [their] rights under [Penal Code] section 1424 and [their] rights
under the state and federal Constitutions." (People v. Bryant, supra,
60 Cal.4th at p. 372.)
In Bryant, as in the instant case, the defendants argument for recusal
focused primarily on whether the previous actions by prosecutors were
improper. The California Supreme Court found that "[t]hat is not the
proper inquiry." (People v. Bryant, supra, 60 Cal.4th at p. 374.) Rather,
the Court held that "[r]ecusal is not a mechanism to punish past
prosecutorial misconduct. Instead, it is employed if necessary to ensure
that future proceedings will be fair. '[S]ection 1424 does not exist as a
free- form vehicle through which to express judicial condemnation of
distasteful, or even improper, prosecutorial actions.' (Hollywood v.

Superior Court[, supra 43 Cal. 4th at p. 73 5, italics in original].)" (People

v. Bryant, supra,60 Cal.4th at p. 375.) The Court found that "[e]ven if the
events surrounding the witness interview and the prosecutor's notes could
be characterized as a cover up," the relevant material was ultimately
disclosed and the defendants failed to establish "a likelihood of future
misconduct." (Ibid.)
The Court also addressed the defendants' argumentthat the entire
LADA should be recused due to the fact that "because various supervisors
had become involved in the recusal matters, any prosecutor would have
been 'under the watchful eye of these personally-involved powers within

23

the office.'" (People v. Bryant, supra, 60 Cal. 4th at p. 375.) The Court
found that argument unpersuasive and reiterated that "[r]ecusal is justified
only when the prosecutor has 'an interest in the case extraneous to [his or
her] official function.'" (Id. at p. 376, quoting People ex rel. Clancy v.
Superior Court (1985) 39 Cal.3d 740, 746.) Finding that defendants failed

to establish any such interest, the California Supreme Court found the
recusal motion properly denied. (People v. Bryant, supra, 60 Cal. 4th at
p. 376.)
Similarly to Bryant, the instant case involves allegations of past
prosecutorial misconduct based on - at most - the failure to turn over
discovery, or delay in turning over discovery. 8 As Bryant makes clear, any
such past misconduct is not a basis for recusal. And so long as a prosecutor
does not have "an interest in the case extraneous to [his. or her] official
function," recusal is not justified.
Bryant was a closer case than this one. In Bryant, the prosecutors
themselves, including those in a supervisory capacity, were found to have

intentionally and deliberately held back evidence by failing to reveal it

during an inquiry. Here, the trial court found the OCDA was unaware of
the OCSO' s failure to disclose relevant information during the initial
8

As set forth above, for Brady purposes, the OCDA had constructive
knowledge of the secret "TRED" records kept by the OCSO because the
OCSO was part of the prosecution team. In finding that the OCDA violated
its discovery obligations, the trial court imputed this knowledge to the
OCDA. (14 CT 3765 ["It is now apparent that the discovery situation in
this case is far worse than the court previously realized. In fact, a wealth of
potentially relevant discovery material - an entire computerized data base
built and maintained by the [OCSO] over the course of many years which is
a repository for information related directly to the very issues that this court
was examining as a result of defendant's motion -remained secret, despite
numerous specific discovery orders issued by this court, until long after the
initial evidentiary hearing in this case was concluded and the rulings were
made"].)

24

hearings. (14 CT 3765.) The more tenuous connection between the

conduct and the district attorney's office in this case weighs more heavily
against a finding that the district attorney may be unfair in the future.
Similarly, the district attorney in Bryant had actual possession ofthe
materials at issue, and an actual ability to monitor and control its own
compliance with court orders. The evidence refutes the existence of those
factors here, yet they were critical to the trial court's conclusion a conflict
existed. Bryant reaffirms existing law illustrating the remedy of recusal
does not address the type of conduct involved in this case.
Furthermore, in the instant case, as in Bryant, the proper discovery
was ultimately provided. In addition, as set forth above, evidentiary
sanctions have been imposed to purge any taint of misconduct from this
case -the OCDA conceded that it would not present any evidence relating
to Dekraai's conversation with Perez and the trial court has limited the
prosecution's potential aggravating evidence to the circumstances of the
offenses, crimes to which Dekraai has already pled guilty, pre-booking
statements, and victim impact testimony, none of which are even remotely
affected by any alleged misconduct. Given the state of the law, the
evidence adduced in this case, and the evidentiary sanctions already
imposed for governmental misconduct, any "conflict" suffered by the
OCDA does not make it unlikely that Dekraai will receive fair treatment
during his penalty phase trial. 9
Although Dekraai's counsel argued that, based on the actions of law
enforcenient officials, he can never be sure that everything Dekraai is
entitled to has been turned over (see 27 RT 6001-6010, 6021), that concern,

Taken to its logical conclusion, the trial court's findings in this

case would seem to require recusal ofthe OCDA in every case where it
relies on the OCSO as its investigative agency.

25

even if founded, is not reduced or mitigated by changing the prosecutorial

agency because the Attorney General will have to continue to rely on the
OCSO to be forthcoming with discovery. Moreover, sheer speculation that
law enforcement officials will continue to conceal information cannot form
the basis for recusing the assigned prosecutors, let alone the elected district
attorney, every division and branch, and all of the prosecutors in his office.
"Where only speculative or minimal benefit would be obtained by
disqualification of public counsel, the 'dislocation and increased expense of
government' is not justified." (In re Lee G. (1991) 1 Cal.App.4th 17, 28.)
"[A] motion to disqualify a prosecutor must be based upon a likelihood of
unfairness and not upon mere speculation." (People v. Parmar, supra,
86 Cal.App.4th at p. 800.)
Finally, recusing the entire OCDA and substituting in the Attorney
General as the prosecuting agency will not rectifY the alleged problems in
this case. Any misconduct in this case, even if imputable to the OCDA,
undeniably had its origins in the OCSO. Because the OCDA is more
familiar with the workings of the OCSO and, at least now, has superior
knowledge of issues that have caused problems in this case, the OCDA is
arguably better suited, and certainly no less capable, than the Attorney
General to guard against them going forward. In other words, even if the
Attorney General were to take over the prosecution of this case, it would, as
the OCDA does, necessarily have to rely on the OCSO, the purported
source of the problems that have given rise to these motions. Because the
Attorney General's Office would presumably know even less about the
OCSO's practices and would be no more able to enforce discovery orders
as to material it does not know exists, the recusal order does nothing to
address or prevent future concealment by the OCSO no matter what
prosecution agency is assigned. Thus, the granting of the recusal motion,
involving a commitment of resources of a second prosecutorial agency, also

26

at public expense, and which would inevitably require a costly duplication

of work, would not remedy any of the purported problems that have
plagued this case. (See People ex ref. Younger v. Superior Court (Rabaca)
(1978) 86 Cal.App.3d 180, 204~ see also People v. Eubanks, supra,
14 Ca1.4th at p. 593, fn. 6.)

CONCLUSION
The trial court's understandable concern regarding misconduct by the
OCDA and OCSO in this case is not properly redressed by depriving the
citizens of Orange County of representation by their elected District
Attorney. For the reasons detailed herein, appellant respectfully requests
the order recusing the OCDA be reversed with directions to deny recusal.
Dated: July 13,2015

Respectfully submitted,
KAMALA D. HARRIS

Attorney General of California

GERALD A. ENGLER
Chief Assistant Attorney General
JULIE L. GARLAND
Senior Assistant Attorney General
HOLLY D. WILKENS
Supervising Deputy Attorney General

THEODORE M. CROPLEY

Deputy Attorney General

Attorneys for Appellant
TMC :swm
802015800734
71105916.doc

27

CERTIFICATE OF COMPLIANCE
I cetiify that the attached APPELLANT'S OPENING BRIEF uses a
13-point Times New Roman font and contains 8,250 words.
Dated: July 13, 2015

D. HARRI S
Attorney General of California

KAMALA

THEODORE M. CROPLEY

Deputy Attorney General

Attorneys for Appellant

28

DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE

Case Name:
No.:

People v. Dekraai
G051696

I declare:
I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service that same day in the ordinary course of business.
On July 13,2015, I served the attached APPELLANT'S OPENING BRIEF, by placing a true
copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal
mail collection system at the Office of the Attorney General at 600 West Broadway, Suite 1800,
P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows:
SCOTT VAN CAMP
DEPUTY PUBLIC DEFENDER
14 CIVIC CENTER PLAZA
SANTA ANA, CA 92701

Attorney for Respondent

Scott Evans Dela-aai
(Two Copies)

CLERK OF THE COURT

ATTN HON THOMAS M GOETHALS
ORANGE CO SUPERIOR COURT
P 0 BOX 1994
SANTA ANA CA 92702-1994

APPELLATE DIVISION
OFFICE OF THE DISTRICT ATTORNEY
COUNTY OF ORANGE
P 0 BOX 808
SANTA ANA CA 92702

and, furthermore I declare, in compliance with California Rules of Court, rules 2.251 (i)( l )(A)(D) and 8.71 (f)(l)(A)-(D), I electronically served a copy of the above document on July 13,
2015, to Appellate Defenders, Inc.'s electronic service address eservice-crim inal(a),adisandiego.com.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on July 13, 2015 , at San Diego, California.

STEPHEN McGEE

Declarant
SD2015800734
711 05941.doc