Packer v. Superior Court

Filed 12/11/14

IN THE SUPREME COURT OF CALIFORNIA

JOSHUA GRAHAM PACKER, )
)
Petitioner, )
) S213894
v. )
) Ct.App. 2/6 B245923
THE SUPERIOR COURT OF )
VENTURA COUNTY, )
) Ventura County
Respondent; ) Super. Ct. Nos. 2010013013 &
) 2012015764
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)

Penal Code section 1424 permits a defendant to seek to recuse a prosecutor
for an alleged conflict of interest.1 The statute establishes a two-stage process.
Initially, the defendant files a notice of motion containing ―a statement of the facts
setting forth the grounds for the claimed disqualification and the legal authorities
relied upon by the moving party‖: The factual allegations must be supported by
―affidavits of witnesses who are competent to testify to the facts set forth in the
affidavit.‖ (§ 1424, subd. (a)(1).) The district attorney and the Attorney General
may file affidavits in opposition to the motion. (Ibid.) After reviewing the motion

1 Unless otherwise noted, all further unspecified statutory references are to
the Penal Code.
and affidavits, the trial court exercises its discretion in determining whether the
second stage, an evidentiary hearing, is necessary. (Ibid.) An evidentiary hearing
may be required if the defendant‘s affidavits establish a prima facie showing for
recusal; that is, if the facts demonstrated by the affidavits, if credited, would
require recusal. (Spaccia v. Superior Court (2012) 209 Cal.App.4th 93, 111-112
(Spaccia).) In some instances, the affidavits might present disputed material facts,
the resolution of which may depend largely upon the affiants‘ veracity and
credibility under circumstances that can be determined only by holding an
evidentiary hearing. If those credibility and veracity determinations, resolved in
defendant‘s favor, would demonstrate that the conflict is so grave as to make a fair
trial unlikely, the trial court abuses its discretion by failing to hold an evidentiary
hearing.
In the present case, we conclude the trial court abused its discretion.
Accordingly, the trial court shall be directed to hold an evidentiary hearing.
I. PROCEDURAL BACKGROUND

A. The Crimes and Petitioner’s Arrest for a Triple Homicide
On May 20, 2009, a man wearing a motorcycle helmet entered the Faria
Beach home of Brock and Davina Husted while they and their nine-year-old son
and 11-year-old daughter were home. Their nine-year-old son witnessed the man
rob his parents, and after the killer fled he found his parents‘ bodies. They had
been stabbed numerous times, resulting in their deaths. Davina Husted had also
been sexually assaulted. Davina had been four- to five-months pregnant, and her
fetus was also killed.
DNA profiles were extracted from samples taken from Brock Husted‘s
fingernail scrapings and from a motorcycle helmet visor found at the scene. The
crimes were unsolved until petitioner Joshua Graham Packer was arrested on

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unrelated felony charges more than six months later, in mid-January 2010.
Because of that arrest, petitioner‘s DNA profile was obtained and that profile was
eventually matched to the profiles derived from the Husted crime scene.
Petitioner was subsequently charged in an indictment with three counts of
first degree murder, two counts of first degree robbery (§ 211), and one count of
first degree burglary (§§ 459, 460, subd. (a)). The murder counts include
allegations that petitioner personally used a deadly weapon (former § 12022,
subd. (b)(1)), and committed the crimes while engaged in the commission of
robbery or attempted robbery (§ 190.2, subd. (a)(17)(A)), and burglary or
attempted burglary (§ 190.2, subd. (a)(17)(G)). The indictment also includes a
multiple-murder special-circumstance allegation. (§ 190.2, subd. (a)(3).) The
prosecutor is seeking the death penalty.
After further testing of samples taken from a towel found near Davina‘s
body and of an oral swab collected from her, additional DNA evidence matching
petitioner‘s profile to those samples was identified. As a result, the grand jury
returned a second indictment against petitioner, including charges of first degree
murder (§ 187) of Davina Husted, forcible oral copulation (§ 288a, subd. (c)(2)),
use of a knife (former § 12022, subd. (b)(1)), and a special circumstance allegation
that her murder was perpetrated during the commission of an act of forcible oral
copulation (§ 190.2, subd. (a)(17)(F)).
In June 2012, the trial court consolidated both cases against petitioner.

B. The Motion to Recuse the Prosecutor
In September 2012, petitioner filed a written motion to recuse Chief Deputy
District Attorney Michael Frawley (Frawley or the prosecutor), the lead prosecutor
on the case, pursuant to section 1424 on the following grounds: (1) the prosecutor
appears to have known Davina Husted through Frawley‘s former wife, Lisa West;

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(2) two of Frawley‘s adult children, Kyle and Elizabeth, knew petitioner through
their involvement in a youth group and would be called as witnesses by the
defense at the penalty phase if petitioner is found guilty; and (3) Frawley‘s
daughter Elizabeth dated petitioner‘s friend, Thomas Cathcart, a proposed
prosecution and defense penalty phase witness, and also knows Oscar Martinez
and Steven Infante, both of whom had been identified as proposed witnesses for
the prosecution at the penalty phase.
In support of his recusal motion, petitioner submitted 54 pages of affidavits
from eight people, along with 350 pages of attachments. Petitioner also filed a
separate motion objecting on compulsory process grounds to section 1424,
subdivision (a)(1)‘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, claiming that the affidavit procedure is insufficient for him to access
witnesses who otherwise refuse to meet with the defense.2
In opposing petitioner‘s motion, the district attorney presented 70 pages of
attachments, including affidavits from two people, one from the prosecutor
himself. The Attorney General joined in opposing petitioner‘s motion.
Petitioner continued to investigate the matter and filed a reply to the district
attorney‘s and Attorney General‘s oppositions, alleging two additional related
grounds for the prosecutor‘s conflict of interest — that the prosecutor had actively
interfered with the defense‘s efforts to contact the prosecutor‘s children and their

2 The United States and California Constitutions grant a defendant the right
―to have compulsory process for obtaining witnesses in his favor.‖ (U.S. Const.,
6th Amend.; see Cal. Const., art. I, § 15 [affording ―the right . . . to compel
attendance of witnesses in the defendant‘s behalf‖].)

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friends, and that the prosecutor has a personal interest in not having his children
testify at petitioner‘s penalty phase.
The parties moved to strike portions of each other‘s affidavits and
attachments on several grounds, including speculation, lack of foundation, and
inadmissible hearsay. The trial court partially granted the motions to strike and
redacted various portions of the exhibits and affidavits.

C. The Trial Court’s Ruling and Subsequent Review
In November 2012, the trial court overruled petitioner‘s compulsory
process objection, denied his request for an evidentiary hearing, and denied his
motion to recuse the prosecutor. The trial court stated that its decision denying an
evidentiary hearing would be the same even if it had considered all of the
unredacted material.
Petitioner challenged the trial court‘s ruling in a petition for writ of
mandate in the Court of Appeal, which summarily denied relief. Petitioner sought
review in this court, and we granted review and transferred the matter to the Court
of Appeal with directions to vacate its order denying mandate and to issue an
alternative writ. The Court of Appeal gave the trial court an opportunity to
reconsider its ruling, but it declined to do so. The Court of Appeal issued an order
to show cause and set the matter for oral argument. In late August 2013, the Court
of Appeal upheld the trial court‘s ruling and denied the requested writ of mandate
in a published opinion.
Petitioner sought review of the Court of Appeal‘s decision, and we granted
review in December 2013, limiting review to the issue whether the trial court
abused its discretion by denying petitioner‘s request for an evidentiary hearing on
the ground that petitioner had failed to make a prima facie showing that recusal
was warranted.

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 II. THE FACTS AND ALLEGATIONS RAISED IN THE MOTION TO RECUSE

In April 2010, four months after petitioner had been arrested for the
underlying crimes, Frawley e-mailed petitioner‘s counsel, disclosing that his
(Frawley‘s) children Kyle and Elizabeth had been acquaintances of petitioner
while in high school. Although his children had attended a high school different
from petitioner, Frawley explained that the three had associated with one another
through their mutual participation in a youth group known as Young Life.
Frawley stated that, in 2005, Kyle went on a four-day ski trip sponsored by the
youth group and had shared a room with petitioner and four other individuals.
Around this same time period, Young Life also sponsored a weeklong camping
trip that was attended by petitioner, Kyle, and Elizabeth. Frawley also revealed
that petitioner had visited the Frawley‘s residence ―on two or more occasions‖ in
which the Frawley family had hosted Young Life gatherings. According to
Frawley, he learned that, in 2006, Elizabeth had hosted a social gathering in the
backyard of the Frawley home, which petitioner attended ―though he was not
invited.‖ Frawley, however, stated he did not recall ever meeting petitioner. He
added that his ―children have had no relationship with [petitioner] outside of the
events described above.‖ Finally, Frawley stated that petitioner‘s contact with his
children would not have any bearing on his role as the lead prosecutor in this
criminal case.
Petitioner‘s counsel responded by e-mail, asking Frawley how he had
learned of petitioner‘s prior acquaintances with his children, what impressions his
children had of petitioner, and whether there was a problem with petitioner being
at the Frawley home uninvited. Frawley responded by stating he believed that,
legally or ethically, no further disclosure was required on his part, except to state
that he had mentioned that petitioner had not been expressly invited ―only to avoid

6
the impression that there was actually a relationship‖ between petitioner and his
children.
During the subsequent 30 months of pretrial discovery and investigation,
the parties collected and then presented the following evidence in the affidavits
and exhibits that were submitted for purposes of the motion filed by petitioner
under section 1424.3

A. The Prosecutor’s Relationship to Davina Husted
Frawley and his ex-wife, Lisa West, divorced in 1997. In 2009, at the time
of the charged offenses, West served on the board of directors of the National
Charity League Juniors (Junior League) and victim Davina Husted was the Junior
League‘s president. West also was on Davina Husted‘s Christmas card
distribution list for 2008. A January 2008 spreadsheet recovered from Davina
Husted‘s computer listed Frawley and his current wife as Junior League
supporters.
In response to the foregoing facts, Frawley‘s affidavit emphasized that he
had never met Davina Husted. He did not recall whether he had contributed to the
Junior League, but stated that, in any event, the existence of such a contribution
would not affect his handling of this case. He was also unaware that his ex-wife

3 As previously stated, despite its extensive redaction of the affidavits and
exhibits, the trial court nevertheless stated that it would have reached the same
conclusion even if it considered all of the proffered evidence. In light of the trial
court‘s statement, the Court of Appeal considered all of the proffered evidence in
reaching its conclusion. Yet, section 1424 states that the recusal motion ―shall be
supported by affidavits of witnesses who are competent to testify to the facts set
forth in the affidavit.‖ (§ 1424, subd. (a)(1), italics added.) On appeal, the parties
do not dispute the correctness of the trial court‘s redactions, and accordingly, in
determining whether the trial court abused its discretion in denying the recusal
motion without holding an evidentiary hearing, we will not consider those portions
of the record redacted by the trial court.

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was on Davina Husted‘s Christmas card list, but maintained that any relationship
between Davina Husted and his ex-wife would not affect his handling of this case
because he and his ex-wife had divorced some 15 years earlier.

B. The Prosecutor’s Children’s Relationship with Petitioner
Young Life is a Christianity-based youth group for high school students
from various schools. According to Kristy Benscoter‘s affidavit, submitted by
petitioner in support of his motion to recuse, she and Frawley‘s children, Kyle and
Elizabeth, all participated in the group for several years along with petitioner and
mutual friends Thomas Cathcart, Steven Infante, and Oscar Martinez.4 In addition
to camping and snowboarding trips, the group would meet every Monday,
primarily for Bible study. Petitioner, Kyle, Elizabeth, Benscoter, Cathcart,
Infante, and Martinez would attend these meetings. Some of these meetings were
held at the Frawley home.5 According to Benscoter, she, petitioner, Cathcart, and
other Young Life members were at the Frawley residence ―all the time.‖ She
recalled they that would socialize around the pool in the yard of the Frawley
home. Elizabeth hosted many such parties at the Frawley residence, outside of
any connection with the Young Life group, which Benscoter attended along with
the ―boys,‖ including petitioner. She recalls Elizabeth‘s mother being present
during those parties with Mr. Frawley being ―more in the background.‖

4 The prosecution has listed Cathcart, Infante, and Martinez as witnesses for
its penalty phase against defendant regarding an incident the day after the Husteds
were killed in which petitioner allegedly punched Cathcart.
5 Frawley‘s current spouse, Linda Frawley, actively participated in Young
Life as a committee member and eventually became co-chair in 2003, while
petitioner was still involved in the organization.

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 According to Benscoter, she, Elizabeth, and their other girlfriends were
―totally comfortable around‖ petitioner. She described him as a kind, protective
―gentleman,‖ who flirted with them in a ―silly, goofy way that was endearing to all
of us.‖
One of the exhibits attached to the motion to recuse was a defense
investigator‘s report of an interview with Kyle Frawley, a report that had been
reviewed, corrected and signed by Kyle.6 According to the report, during the
interview Kyle described petitioner as behaving appropriately at Young Life
gatherings and stated that petitioner ―was aggressive, but not in a bad way.‖ On
one occasion during a snowboarding trip, Kyle stayed with petitioner in a cabin
that was ―attacked‖ in a pillow fight by members of another cabin. According to
Kyle, petitioner was the first person in the cabin to defend their cabin against the
attack. In addition, during a Young Life camping trip, Kyle described a night in
which petitioner declared that he had made a ―breakthrough and accepted
religion,‖ accepting Jesus for the first time in his life. Kyle recalled petitioner
being at the Frawley home for a Young Life meeting. Kyle also remembered that
petitioner had attended his younger sister Elizabeth‘s birthday party at the Frawley
home, although Elizabeth had not invited him. Kyle acknowledged that he was
among a group of people who signed up on a Prayer for Josh Web site offering
support for petitioner following his arrest in the underlying proceedings.
Petitioner‘s motion also included copies of numerous photographs taken
during a Young Life camping trip featuring group photos of petitioner, Kyle,

6 According to the defense investigator, Kyle reviewed the typed report,
made minor handwritten changes to it, and signed the report. Although Kyle did
not sign the report under penalty of perjury (Code Civ. Proc., § 2003), the
prosecution lodged no objection to the trial court‘s consideration of any part of
this statement.

9
Elizabeth, Benscoter, Cathcart, Infante, and Martinez. In some of these photos,
petitioner is posing with Elizabeth and Benscoter or is lying across the lap of
Elizabeth and Benscoter. One photo had been posted to a MySpace page run by
Elizabeth, Benscoter, and a mutual friend who also had participated in Young
Life.
In its opposition to the recusal motion, the prosecutor submitted his own
report of an interview of Kyle conducted by a prosecution investigator after Kyle‘s
interview with the defense investigator. The prosecution investigator‘s report is
not signed by Kyle, but the defense lodged no objection to the trial court‘s
consideration of this report for purposes of the section 1424 motion. According to
the prosecution investigator‘s report, Kyle told the prosecution investigator that he
(Kyle) had felt pressured to sign the defense investigator‘s report of his prior
interview and that he did not want to testify in court about this case. Despite the
fact that Kyle had reviewed the defense investigator‘s report and had made a few
handwritten changes to that report, the prosecution investigator‘s report states that
Kyle did not believe the defense report was accurately written, but rather was
―slanted.‖ According to the prosecution investigator‘s report, during the
prosecution investigator‘s interview Kyle described petitioner as having a
reputation for fighting. Kyle stated that petitioner was ―overly aggressive‖ in the
pillow fight Kyle had previously described to the defense investigator,
characterizing it as the most ―brutal‖ pillow fight Kyle had ever seen. The
prosecution investigator‘s report states that Kyle remembered petitioner attending
most of the weekly Young Life meetings during the 2004-2005 school year, along
with Infante and Benscoter. According to the prosecution investigator‘s report,
Kyle made clear that he and petitioner were not ―personal friends,‖ but just
acquaintances. The prosecution investigator‘s report also stated that petitioner did
not tell Kyle personally that he had accepted Jesus; instead petitioner had made

10
that statement in a group discussion. The prosecution investigator‘s report does
not indicate that during the interview the investigator asked Kyle, or that Kyle
mentioned, anything about his sister Elizabeth. Finally, the investigator‘s report
discloses that Frawley was present in the room during his son‘s interview with the
investigator.
According to the district attorney‘s opposition, at least 56 other children
participated in Young Life with petitioner. The opposition maintained that
because these other individuals might have known petitioner better than Frawley‘s
children, Frawley‘s children were not important or critical witnesses for the
defense penalty phase. The opposition claimed that the defense manufactured an
apparent conflict by listing Frawley‘s children as possible witnesses. In his
affidavit, Frawley states that his children‘s prior acquaintance with petitioner has
not affected, impacted, or influenced any of his decisions in the present case. In a
later supplemental filing, the prosecution stated its intention to have another
deputy prosecutor cross-examine Kyle and Elizabeth should the defense call them
as witnesses.

C. Thomas Cathcart and His Relationship with Elizabeth, Petitioner,
and Frawley
The trial court‘s rulings redacted much of the evidence the defense
proffered concerning Cathcart‘s relationship with Elizabeth and Cathcart‘s
interactions with the defense investigators. According to Benscoter‘s affidavit,
Elizabeth and Cathcart had been romantically involved. Cathcart had been
interviewed by investigators for both parties, but ultimately neither party
submitted an affidavit by Cathcart in support of or in opposition to the recusal
motion. The defense alleged that before Cathcart‘s interview with the prosecution
was recorded, the prosecution‘s investigator advised him not to mention Elizabeth.
According to defense counsel‘s affidavit, the prosecution‘s interview of Cathcart

11
was recorded and on that recording there is no reference to Elizabeth or to
Cathcart‘s relationship with her.
According to Frawley‘s affidavit, Cathcart and petitioner were friends and
played football together in high school. Frawley‘s children knew Cathcart, but he
could not confirm whether Cathcart and Elizabeth had a dating relationship.
Frawley admitted to being present when the prosecutor‘s investigator interviewed
Cathcart. In their opposition, the prosecution denied the defense claim that
Cathcart was told not to mention Elizabeth during the recorded part of the
interview. According to the prosecution, ―there was no professional reason to ask
Mr. Cathcart about Elizabeth Frawley.‖ Later in the same motion, however, the
prosecution acknowledged that ―Mr. Cathcart was told his interview with the
prosecution investigator would not include information about Elizabeth Frawley.‖
But the motion further stated that Cathcart ―was never admonished to keep that
relationship a secret.‖

D. The Prosecutor’s Alleged Interference with the Defense
Investigation
Petitioner‘s investigators failed in numerous attempts to contact Elizabeth
and petitioner claims that the prosecutor actively frustrated the defense‘s ability to
contact her. During the time petitioner‘s recusal motion was being litigated,
Elizabeth was a college student in South Bend, Indiana. According to Frawley‘s
affidavit, he provided the defense with ―the name of the state [in which] my
daughter resides,‖ and he gave Elizabeth the name and telephone number of the
defense investigator.
Elizabeth did not contact the defense investigator. On May 30, 2012, a
―tweet‖ on Elizabeth‘s Twitter account stated, ―landing in LAX Aug 4-18.‖ On

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August 6, 2012, a tweet on Elizabeth‘s twitter account stated, ―really over not
being able to tweet my whereabouts. This better pay off. #attorneyfatherprobs.‖7
On August 13, 2012, a defense investigator delivered a subpoena for
Elizabeth that was to be served by the Ventura County Sheriff‘s civil unit at the
Frawley residence. On August 17, 2012, however, Deputy Scott Baugher returned
the subpoena to the defense, stating that the service on Elizabeth had failed and
marked off a box indicating that ―[t]he person has moved and the forwarding
address is not known.‖ Deputy Baugher listed only one attempt to serve Elizabeth
with the subpoena.
According to a defense investigator‘s report dated in late August 2012,8 a
defense investigator spoke with Deputy Baugher about the failed service.
According to the defense investigator, Deputy Baugher appeared agitated and told
him that the obligation to serve the subpoena had ―put the department in a huge
bind‖ and that the investigator should have informed the sheriff‘s department that
the subpoena was for the daughter of a ―high official‖ in the district attorney‘s
office. According to the defense investigator‘s report, Deputy Baugher said that
the defense had put him ―in danger‖ and that they were ―playing games‖ by trying
to make Frawley‘s children witnesses in the case. Deputy Baugher told the
defense investigator that he tried to serve the subpoena three times, and then
conducted his own investigation and learned that the address was the residence of

7 The latter portion of the tweet, ―#attorneyfatherprobs,‖ is called a
―hashtag.‖ This is a method by which a user can categorize his or her tweets by
subject for other Twitter users to comment on. Thus, by adding the hashtag,
―#attorneyfatherprobs,‖ the user presumably intended to create a topic on Twitter
regarding problems with attorney fathers that others may view, approve,
disapprove, and/or comment on.
8 The trial court did not redact this defense investigator‘s report and found it
admissible as prior inconsistent statement of Deputy Baugher.

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Michael Frawley of the district attorney‘s office. Deputy Baugher indicated that
he had subsequently telephoned the residence and had spoken with Frawley
himself, Frawley said that Elizabeth no longer lived there and that he did not know
where his daughter lived.
In late October 2012, another defense investigator asked Deputy Baugher to
sign an affidavit derived from the contents of the late August 2012 defense
investigator‘s report. Deputy Baugher reviewed both the late August report and
the defense-drafted affidavit, but refused to sign the affidavit.
Frawley later presented an affidavit from Deputy Baugher. In this affidavit,
Deputy Baugher stated that he was assigned to serve a subpoena for Elizabeth and
that he determined that the address listed for her was the same as the address for
Chief Deputy District Attorney Frawley. Deputy Baugher then called Frawley
who stated that Elizabeth was an adult and no longer lived at his residence.
According to Deputy Baugher‘s affidavit, ―[i]t is not my practice to inquire about
forwarding addresses and I did not do so when I spoke with Mr. Frawley.‖
Deputy Baugher denied telling the defense investigator that Frawley claimed not
to know Elizabeth‘s current address. In his affidavit, Deputy Baugher explained
that he told the defense investigator that she should have informed him that the
address listed in the subpoena was for an official in the district attorney‘s office
because, in his experience, ―persons involved in law enforcement often own
firearms and for that reason not knowing Mr. Frawley‘s position could have
created an unsafe situation.‖ Deputy Baugher denied telling the defense
investigator that the defense was ―playing games,‖ and explained that he did not
sign the defense-drafted affidavit because it did not reflect his recollection of the
events described.

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 Although Thomas Cathcart had previously cooperated with the defense, by
November 2012, Cathcart refused further attempts by the defense to contact him
or to review and sign a draft affidavit.
In his affidavit, Frawley stated that he never interfered with the defense
efforts to interview his children. Frawley also stated that he told his children that
they should feel free to speak with the defense.

E. The Prosecutor’s Personal Interest in Not Having His Children
Testify
Petitioner contends that the prosecutor has a personal and emotional bias in
the noninvolvement of his children in the penalty phase — to prevent his children
from being maligned by their association with a triple murderer. As evidence of
this bias, petitioner points to the prosecutor‘s statements to the press, his motions
to strike evidence presented in petitioner‘s motion to recuse, and his litigation of
various discovery issues.
In late July 2012, approximately one week before the initial date set for
trial, the defense filed a revised witness list listing Kyle and Elizabeth Frawley as
witnesses for the defense penalty phase. In response, the prosecutor sent defense
counsel an e-mail in which he complained of the late discovery and requested any
witness reports and the contact information for some of the proposed defense
witnesses, including his own children. Defense counsel responded in an e-mail to
the prosecutor the next day, explaining that the defense would provide its witness
reports and contact information in the coming days. Although the parties were
aware of an impending defense motion for a continuance, Frawley filed a motion
seeking to hold defense counsel in contempt for providing untimely discovery.
The trial court granted the defense‘s request for continuance and delayed
the trial for five months. After this hearing, the prosecutor told a reporter for a
local newspaper that his ―children have nothing to do with this case‖ and that they

15
would not have been mentioned if he was not the prosecutor. When asked about
his children‘s association with petitioner in the Young Life group, the prosecutor
told the reporter, ―I am not going to answer specific questions about that but it‘s
probably the lowest sort of trial tactics I‘ve ever seen.‖
A few days later, soon after the ―really over not being able to tweet my
whereabouts‖ message on Elizabeth‘s Twitter account, the prosecutor served a
subpoena duces tecum on defense counsel‘s office seeking materials related to the
subpoenas of defense witnesses. At a trial court hearing, defense counsel argued
that a subpoena duces tecum was a mechanism for obtaining discovery from third
parties, not from an opposing party, and that its use would circumvent the
reciprocal discovery statutes. In response, the prosecutor stated that the request
sought information concerning when the defense actually anticipated calling these
witnesses at trial and that this factor would be useful for the court in deciding a
future motion for contempt based on providing untimely discovery. In his
affidavit, the prosecutor explained that he believed that the defense had delayed its
disclosure of its witnesses ―in order to gain tactical advantage.‖ He further
declared that he filed the motion to hold defense counsel in contempt and for no
other reason. In his affidavit, Frawley does not explain why he utilized a
subpoena duces tecum to seek discovery from defense counsel‘s office.
Additionally, the prosecutor filed motions to strike various portions of the
defense‘s affidavits and investigation reports. Taken together these motions
sought to exclude all portions of Benscoter‘s statements that described Elizabeth‘s
romantic relationship with Thomas Cathcart, that Benscoter, petitioner, and other
Young Life participants had been at the prosecutor‘s residence ―all the time,‖
including attending parties that were unrelated to Young Life events, and that
Benscoter and Elizabeth felt comfortable around petitioner, enjoyed his company,
and that he was protective of them. Last, the prosecutor objected to the

16
introduction of the message, ―really over not being able to tweet my whereabouts‖
that had appeared on Elizabeth‘s Twitter account, arguing that ―there has been no
showing that the ‗tweet‘ can be attributed to Elizabeth Frawley.‖
In addition, the prosecutor stated in his affidavit that all of his decisions in
this case ―have been made in the usual and customary manner‖ and that he had not
made any decision under the influence of the allegations of the recusal motion or
under any ―extraordinary or unusual pressure.‖ The prosecutor further explained
that his relationship with his adult children would not cause him to exercise his
―discretion and professional duties differently‖ than if they had never met
petitioner.
III. DISCUSSION

A. Applicable Legal Standards for a Motion to Recuse
Section 1424, subdivision (a)(1) provides, in part, that a motion to recuse
the district attorney ―may not be granted unless the evidence shows that a conflict
of interest exists that would render it unlikely that the defendant would receive a
fair trial.‖
In interpreting this section, we have held that a ―conflict‖ exists, for
purposes of section 1424, ―whenever the circumstances of a case evidence a
reasonable possibility that the DA‘s office may not exercise its discretionary
function in an evenhanded manner.‖ (People v. Conner (1983) 34 Cal.3d 141,
148.) Moreover, ―there is no need to determine whether a conflict is ‗actual,‘ or
only gives an ‗appearance‘ of conflict.‖ (Ibid.)
However, the mere existence of a conflict, by itself, is not sufficient to
require recusal of the district attorney. (People v. Eubanks (1996) 14 Cal.4th 580,
594.) Section 1424 does not authorize disqualification merely because the defense
has shown that the prosecutor‘s involvement ―would be unseemly, would appear

17
improper, or would tend to reduce public confidence in the impartiality and
integrity of the criminal justice system.‖ (Id. at p. 592.) Instead, it is defendant‘s
burden to allege facts which, if credited, establish: (1) a ―conflict of interest‖; and
(2) that the conflict is ―so grave as to make a ‗fair trial‘ unlikely.‖ (Id. at p. 593.)
―Thus, the first half of the inquiry asks only whether a ‗reasonable possibility‘ of
less than impartial treatment exists, while the second half of the inquiry asks
whether any such possibility is so great that it is more likely than not the defendant
will be treated unfairly during some portion of the criminal proceedings.‖
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 713.)
As previously described, the statutory procedure established by section
1424 prescribes a two-stage process. At the first stage, the defendant must file a
notice of motion containing ―a statement of the facts setting forth the grounds for
the claimed disqualification and the legal authorities relied upon by the moving
party,‖ and those allegations must be supported by ―affidavits of witnesses who
are competent to testify to the facts set forth in the affidavit.‖ (§ 1424,
subd. (a)(1).) In opposition to the motion, the district attorney and the Attorney
General may also file affidavits. (Ibid.) After considering the motion and
affidavits, the trial court then decides whether or not the second stage, an
evidentiary hearing, is necessary. (Ibid.) An evidentiary hearing may be ordered
if the defendant‘s affidavits establish a prima facie case for recusal — that is, if the
defendant‘s affidavits, if credited, would require recusal. (Spaccia, supra, 209
Cal.App.4th at p. 112.)
The decision whether to hold an evidentiary hearing ―contemplates an
exercise of discretion on the part of the trial court in determining whether a
hearing is necessary,‖ and we review a trial court‘s decision not to hold an
evidentiary hearing for an abuse of that discretion. (Spaccia, supra, 209
Cal.App.4th at p. 109.) We have explained that, under this standard of review,

18
―[t]he trial court‘s findings of fact are reviewed for substantial evidence, its
conclusions of law are reviewed de novo, and its application of the law to the facts
is reversible only if arbitrary and capricious.‖ (Haraguchi v. Superior Court,
supra, 43 Cal.4th at pp. 711-712, fns. omitted.) The same standard applies in
capital cases. (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728.)
In Spaccia, the Court of Appeal examined the legislative history of section
1424, which at one point contained language that limited evidentiary hearings to
the sole circumstance of when ― ‗there are disputed issues of material fact that
cannot be resolved through the use of affidavits.‘ ‖ (Spaccia, supra, 209
Cal.App.4th at p. 109, quoting Assem. Bill No. 154 (1999–2000 Reg. Sess.) as
introduced Jan. 15, 1999, p. 2, italics omitted.) But as enacted, the evidentiary
hearing provision of section 1424 simply states: ―The judge shall review the
affidavits and determine whether or not an evidentiary hearing is necessary.‖
(§ 1424, subd. (a)(1).) The Court of Appeal in Spaccia concluded that because
―the language limiting hearings was ultimately rejected in favor of language
leaving the issue of whether to hold a hearing to the trial court‘s discretion, we can
infer that the Legislature expressly chose not to limit evidentiary hearings to only
those situations in which there exist disputed issues of material fact which could
not be resolved on affidavits alone.‖ (Spaccia, supra, at pp. 110-111.)
Thus, it is clear that the Legislature intended that trial courts exercise broad
discretion in deciding whether to hold evidentiary hearings under section 1424.

B. Application to This Case
In the present case, the prosecution conceded that an apparent conflict
existed because the prosecutor‘s children are on the defense witness list, but
argued that the defense had ―manufactured‖ the apparent conflict.

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 The trial court accepted the prosecution‘s concession that petitioner had
demonstrated an apparent conflict of interest because the prosecutor‘s children did
have ―some degree of relationship‖ with petitioner and that they ―may very well
have positive‖ mitigating penalty phase evidence ―that will be admissible‖ at trial.
But the trial court concluded that petitioner had failed to show ―a disabling
conflict of interest‖ because, in the court‘s view, ―[t]here is a lapse in the link
between the apparent conflict, conflict, and unfairness on behalf of the
prosecution.‖ The court further stated that petitioner‘s submissions had raised
only ―speculation and innuendo‖ and that ―the court is not going to allow an
evidentiary hearing to support the allegations made at this stage of the
proceedings.‖
In reviewing the trial court‘s ruling, the Court of Appeal held that that court
had not abused its discretion. The Court of Appeal did not find a disabling
conflict based on the fact that the prosecutor‘s children might become witnesses in
the penalty phase. It reasoned that the prosecution would likely not contest the
prosecutor‘s children‘s credibility, but instead would question the significance of
their testimony on the question of whether death is the appropriate penalty for
petitioner. The Court of Appeal also found petitioner‘s affidavits disclosed no
conflict of interest on the part of the prosecutor relating to Cathcart. It concluded
that there was no reason why Cathcart‘s prior relationship with the prosecutor‘s
daughter would cause the prosecution to treat petitioner unfairly. In addition, the
Court of Appeal concluded that the trial court did not abuse its discretion in
finding no disabling conflict arising from the prosecutor‘s minimal links to the
Junior League organization that victim Davina Husted had managed in various
capacities. On each of these points, we agree with the Court of Appeal that the
trial court did not abuse its discretion in finding that denial of the recusal motion
was warranted without an evidentiary hearing.

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 We disagree, however, with the lower court rulings that no evidentiary
hearing was warranted concerning the more substantial issue of whether the
prosecutor had become so personally involved in the case ― ‗ ― ‗as to render it
unlikely that [petitioner] will receive fair treatment during all portions of the
criminal proceedings.‖ ‘ ‖ ‘ (Haraguchi v. Superior Court, supra, 43 Cal.4th at
p. 713.) In the Court of Appeal‘s view, petitioner ―presented no direct evidence
that the prosecutor had any role in Elizabeth‘s, Kyle‘s, Cathcart‘s or the
prosecution investigator‘s conduct‖ or that the prosecutor‘s actions were
motivated by a personal grievance against petitioner. The Court of Appeal
acknowledged that the trial court ―could have reasonably inferred that the
prosecutor was upset with [petitioner] and was grinding that personal axe by
tampering with witnesses and taking positions in pretrial litigation unhelpful to the
defense.‖ But the Court of Appeal further observed that ―the trial court could also
reasonably infer that the prosecutor‘s litigation positions were zealous but
evenhanded discretionary calls, that the prosecutor had nothing to do with the
witnesses‘ reluctance to fully cooperate with either party, and that the prosecutor‘s
statements constituted public posturing in a high-profile case rather than an
admission of a personal vendetta.‖ The Court of Appeal concluded that it could
not take issue with ―the trial court‘s decision to draw one reasonable inference
over another,‖ relying in part on language in a prior decision of this court stating
that the trial court ―is in a ‗better position‘ than we are to ‗evaluate the
consequences of a potential conflict in light of the entirety of a case.‘ ‖ (Ibid.)
However, we believe that on the facts of this case the trial court‘s choice of
one inference over another was improperly made without hearing testimony,
evaluating credibility, and resolving factual disputes that were key to determining
the relative reasonableness of the alternative inferences raised by the parties‘
affidavits. An evidentiary hearing would address questions concerning whether

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the defense had manufactured a conflict, questions concerning defense discovery
tactics, the prosecutor‘s pretrial conduct, the effect — if any — of Frawley‘s role
as a prosecutor upon his children‘s potential penalty phase testimony, and the
gravity of the prosecutor‘s conflict — if any — as it related to the fairness of
petitioner‘s trial.
There were at least four significant factual disputes that, if resolved in
petitioner‘s favor, could show that the conflict was so grave as to make a fair trial
unlikely.
First, there was a factual dispute concerning how frequently petitioner
visited the prosecutor‘s home to socialize with Elizabeth Frawley and her friends.
According to the affidavit of Kristy Benscoter, petitioner was at the Frawley
residence ―all the time‖ with her, Elizabeth, and their other friends, and they all
enjoyed his company. This is in contrast to Frawley‘s statements that petitioner
had been to his residence only on ―two or more occasions‖ and that he did not
want to convey ―the impression that there was actually a relationship‖ between
petitioner and his children. The nature and closeness of the relationship between
petitioner and the prosecutor‘s children would certainly have a bearing on the
gravity of the prosecutor‘s conflict of interest as it related to his adult children‘s
potential penalty phase testimony.
Second, there is a factual dispute concerning whether the prosecution‘s
investigator told Thomas Cathcart, before their interview, that he should not
mention Elizabeth. The prosecutor was in the room during the recording of the
interview, and, in that interview, Cathcart does not mention Elizabeth. Although
the district attorney‘s opposition to the recusal motion denied the defense‘s
assertion that Cathcart was told not to mention Elizabeth, the district attorney‘s
opposition itself lends some credence to the defense claim by explicitly
acknowledging that ―Mr. Cathcart was told his interview with the Prosecutor

22
would not include information about Elizabeth Frawley.‖ Under the
circumstances, an evidentiary hearing would shed light on whether the prosecutor
used his influence to steer the prosecution investigator‘s interview with Cathcart to
minimize his daughter Elizabeth‘s connection with petitioner and his friends.
Third, there was a clear factual dispute concerning whether the prosecutor
had interfered with service of a subpoena on Elizabeth: The defense claimed the
prosecutor refused to provide the process server with Elizabeth‘s current address.
According to the affidavit of the process server, he did not ask Frawley for
Elizabeth‘s current address. In contrast, according to a defense investigator, the
process server told the defense investigator that he had asked Frawley for
Elizabeth‘s current address, but Frawley said he did not know it.9
Finally, there was a conflicting depiction of petitioner‘s character and
background in the reports of Kyle‘s interviews with defense and prosecution
investigators. In his interview with the defense investigator, Kyle described
petitioner in generally favorable terms. The defense investigator allowed Kyle to
review the report and make changes, which he did. In contrast, in Kyle‘s
interview with the prosecution investigator, at which Kyle‘s father was present,
Kyle largely disavowed the defense investigator‘s report and described petitioner

9 In its brief, amicus curiae, the California District Attorneys Association,
specifically recognizes this factual conflict, yet maintains that ―the lack of an
evidentiary hearing with live testimony did not deny petitioner anything in terms
of presenting to the court the content of the supposed inconsistent statements.‖
But, in a similar scenario in which a petitioner on habeas corpus has the burden of
proving entitlement to relief, we have recognized that ―the reason we require
habeas corpus petitioners to prove their disputed allegations at an evidentiary
hearing, rather than merely decide the merits of the case on declarations, is to
obtain credibility determinations.‖ (In re Scott (2003) 29 Cal.4th 783, 824.) By
failing to hold an evidentiary hearing, the trial court failed to make any credibility
determinations in support of its ruling.

23
in generally negative terms. The stark conflict between the two reports and the
circumstances of the interviews should have caused the court to hold a hearing to
determine whether the prosecutor exercised undue influence over the potential
witness.
The trial court neither acknowledged these factual disputes nor resolved
them in its ruling. The trial court failed to make any credibility findings
concerning these disputes. Given the material factual disputes here and the
inconsistencies in affiants‘ statements, it seems apparent that this motion could not
be resolved without live testimony. These disputes, if resolved in petitioner‘s
favor, would lend credence to the defense claim that Frawley had actively
interfered in the defense‘s pretrial ability to contact Elizabeth and discover
whether she could offer significant mitigating evidence at petitioner‘s penalty
phase. In assessing the likelihood of prejudice stemming from an asserted conflict
of interest under section 1424, we consider ―the conflict‘s effect on ‗the DA‘s
discretionary powers exercised either before or after trial.‘ ‖ (People v. Eubanks,
supra, 14 Cal.4th at p. 593, quoting People v. Conner, supra, 34 Cal.3d at p. 149.)
A prosecutor‘s use of his or her position to attempt to unfairly interfere with the
defense‘s pretrial efforts to investigate a potentially significant penalty phase
witness would be a genuine disabling conflict, especially when that witness is the
prosecutor‘s child.
To be sure, the defense‘s initial decision to single out the prosecutor‘s
children as potential penalty phase witnesses on petitioner‘s behalf could
reasonably be viewed, from one perspective, as simply a disingenuous effort on
the part of defense counsel to create a conflict where none otherwise existed. We
have no doubt that a trial court would have discretion to deny a motion to recuse a
district attorney that was proffered on behalf of a criminal defendant whose
counsel engaged in improper gamesmanship by proposing to call only marginally

24
relevant witnesses who have a strong personal connection to the prosecutor simply
as a means of creating a conflict for purposes of section 1424.
In this case, however, defense counsel maintained that there were legitimate
reasons for choosing Kyle and Elizabeth as penalty phase witnesses: they were
more likely to be viewed as without bias in favor of petitioner than other Young
Life members and thus a jury would more likely be favorably impressed by their
testimony regarding petitioner‘s character and background. Under the
circumstances, we do not believe the trial court could dismiss defense counsel‘s
conduct as simply impermissible gamesmanship without an evidentiary hearing.
Moreover, as the defense investigation proceeded, the accumulating affidavits
increasingly indicated that Elizabeth and petitioner had been friends for a
sustained period and that she might offer significant favorable mitigating evidence
concerning petitioner‘s background and character at the penalty phase, if the trial
proceedings reached that stage.
Furthermore, as the defense made further efforts to learn more details of
Elizabeth‘s relationship with and attitude toward petitioner, other evidence
surfaced suggesting that Frawley may have actively encouraged Elizabeth not to
cooperate with the defense or otherwise thwarted their access to her.
Particularly significant in this regard was the tweet on Elizabeth‘s Twitter
account in which she claimed to be ―really over not being able to tweet [her]
whereabouts. This better pay off. #attorneyfatherprobs.‖ This message could
reasonably support the inference that Elizabeth had been directed not to disclose
her whereabouts because her concealment would ―pay off‖ for her attorney father.
Moreover, even if an evidentiary hearing shows that Frawley played no role
in his daughter‘s refusal to cooperate with the defense, it could be inferred that
Elizabeth‘s refusal to speak with the defense was motivated by her father‘s
capacity in prosecuting the matter, inasmuch as any testimony by her favorable to

25
petitioner might adversely affect her father‘s interest, as lead prosecutor, in
seeking the death penalty against petitioner. The same can be said of Kyle. In
either scenario, Frawley‘s continuing role as lead prosecutor in this matter could
have the effect of interfering with the defense‘s ability to present relevant and
potentially significant mitigating evidence at the penalty phase of this capital case.
Additionally, should Frawley‘s children become defense witnesses at the
penalty phase, it is not speculative to worry that his personal knowledge of his
children‘s interactions with petitioner might influence the jury‘s assessment of
their testimony. Presumably, the prosecutor would take care not to convey his
knowledge of facts outside the record during cross-examination or closing
statements. Nonetheless, one or more jurors might infer that any attempt to
dispute the children‘s testimony or limit its significance is based in part on
personal knowledge stemming from their close personal relationship. At the very
least, these prospects bear on whether the prosecutor should be recused.
The People argue that there are other persons from the Young Life group
who are more familiar with petitioner and would make ample alternative witnesses
in mitigation for petitioner at any penalty phase. But the district attorney and
Attorney General submitted no affidavits from any such alternative witnesses to
support that assertion. Moreover, because the defense was not able to interview
Elizabeth or to question her at an evidentiary hearing to learn the extent of any
mitigating evidence she might have to offer, it is impossible to make any relative
comparisons with the testimony that might be presented by other potential
witnesses. An evidentiary hearing might well reveal that Kyle and Elizabeth have
little significant mitigating evidence to offer or that their cooperation and
testimony would not be affected by the relationship with their father, and thus
diminish the potential gravity of the conflict. But we believe that the trial court
erred in dismissing the prospect of any actual likelihood of unfairness without

26
holding an evidentiary hearing to obtain the relevant testimony and resolve issues
of credibility that are necessary to evaluate petitioner‘s concerns.
There may well be some scenarios in which judicial economy would justify
a trial court‘s decision not to hold an evidentiary hearing under section 1424 when
the allegations contained in an affidavit lack credulity on their face. For example,
a trial court may reasonably deny a motion under section 1424 without an
evidentiary hearing if the record as a whole conclusively resolves an assertedly
disputed fact or the defendant‘s factual allegations are entirely without credibility.
But here petitioner presented plausible evidence suggesting that the
prosecutor‘s personal entanglement in the case had interfered with and was likely
to continue to interfere with the defense‘s ability to investigate and present
potentially significant mitigating evidence. Under these unique circumstances, the
credibility of petitioner‘s evidence cannot be determined without an evidentiary
hearing to examine the disputed facts, which if resolved in petitioner‘s favor,
would entitle him to relief under section 1424. The full extent of Elizabeth‘s
relationship with petitioner, the issue of whether the prosecution had advised
Cathcart not to mention Elizabeth at the prosecutor‘s behest, and whether the
prosecutor influenced Kyle‘s potential testimony or actively engaged in thwarting
the defense‘s effort to subpoena Elizabeth are all serious factual disputes that will
illuminate the gravity of the conflict at issue here.
It is not difficult to understand and to sympathize with a parent‘s strong
inclination to protect his or her children from being drawn into the role of witness
in a death penalty case, and a prosecutor who is a parent is, of course, not immune
from such feelings. At the same time, however, a criminal defendant‘s right to
present potentially favorable witnesses on his behalf is a fundamental right — a
right that takes on added significance in the capital setting. In light of the
affidavits submitted in support of and in opposition to petitioner‘s motion to

27
recuse the prosecutor under section 1424, and the conflicts and contradictions
reflected in those affidavits, we conclude that the trial court abused its discretion
in declining to hold an evidentiary hearing. A hearing was necessary to determine
whether the conflict in this case would render it unlikely that petitioner would
receive a fair trial if the prosecutor is not recused as lead prosecutor in the
underlying proceeding.
IV. DISPOSITION
We reverse the judgment of the Court of Appeal and order the appellate
court to issue a writ of mandate to the trial court directing that court to conduct
further proceedings consistent with this opinion.

CANTIL-SAKAUYE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
WOODS, J.*

_______________________________

* Associate Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Packer v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 219 Cal.App.4th 226
Rehearing Granted

__________________________________________________________________________________

Opinion No. S213894
Date Filed: December 11, 2014
__________________________________________________________________________________

Court: Superior
County: Ventura
Judge: Patricia M. Murphy

__________________________________________________________________________________

Counsel:

Stephen P. Lipson, Public Defender and Michael C. McMahon, Chief Deputy Public Defender, for
Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews and Zee Rodriguez, Deputy Attorneys General; Gregory
D. Totten, District Attorney, and Michelle J. Contois, Deputy District Attorney, for Real Party in Interest.

Mark L. Zahner and Albert C. Locher for California District Attorneys Association as Amicus Curiae on
behalf of Real Party in Interest.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael C. McMahon
Chief Deputy Public Defender
800 South Victoria Avenue
Ventura, CA 93009
(805) 477-7114

Steven D. Matthews
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2367

Michelle J. Contois
Deputy District Attorney
800 South Victoria Avenue, Suite 314
Ventura, CA 93009-2730
(805) 654-3078

2