Filed 06/18/21 (unmodified opn. attached) Received for posting 6/25/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CHRISTOPHER SCHUMB, H048532
(Santa Clara County
Petitioner, Super. Ct. No. C2010724)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
THE SUPERIOR COURT OF SANTA [NO CHANGE IN JUDGMENT]
CLARA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
BY THE COURT:
It is ordered that the opinion filed herein on May 28, 2021 be modified as follows.
On page 15, the final sentence of the opinion is deleted and replaced with the following:
Upon issuance of the remittitur, the temporary stay order is vacated.
There is no change in the judgment.
The petition for rehearing is denied.
______________________________________
ELIA, A.P.J.
______________________________________
GROVER, J.
______________________________________
WISEMAN, J.
H048532 - Schumb v Superior Court
Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Filed 5/28/21 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CHRISTOPHER SCHUMB, H048532
(Santa Clara County
Petitioner, Super. Ct. No. C2010724)
v.
THE SUPERIOR COURT OF SANTA
CLARA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
Petitioner Christopher Schumb is charged as a coconspirator in a felony
indictment alleging a quid pro quo scheme in which members of the Santa Clara County
Sheriff’s Department issued hard-to-obtain concealed firearms permits in exchange for
substantial monetary donations to help the reelection campaign of Santa Clara County
Sheriff Laurie Smith. Schumb is an attorney with a history of fundraising for elected
officials; he accepted the donations at issue in the underlying criminal case in his capacity
as a treasurer of an independent expenditure committee supporting Sheriff Smith’s
reelection. Schumb is a friend of Jeff Rosen, the elected Santa Clara County District
Attorney. Schumb has also raised funds for Rosen’s campaigns in the past.
Schumb moved to disqualify the Santa Clara County District Attorney’s Office
from prosecuting him, arguing that his friendship with both Rosen and Rosen’s chief
assistant, Jay Boyarsky, created a conflict of interest making it unlikely Schumb would
receive a fair trial. The motion was denied, and he now seeks writ relief here. Schumb
contends the motion should have been granted because his relationships with Rosen and
Boyarsky are of the same type as his alleged relationships with members of the Sheriff’s
Department (i.e., as a fundraiser for public officials’ reelection campaigns); Schumb
intends to call Rosen and Boyarsky as both fact and character witnesses at trial; and
despite their personal connections to the case, neither Rosen nor Boyarsky made any
effort to create an ethical wall between themselves and the attorneys prosecuting the case.
For the reasons stated here, we agree with Schumb and will issue a peremptory
writ of mandate directing the respondent court to vacate the existing order and enter a
new order disqualifying the Santa Clara County District Attorney’s Office in the
underlying criminal proceeding against Schumb.
I. TRIAL COURT PROCEEDINGS
A. INDICTMENT ALLEGATIONS
Schumb is charged by indictment with two felony counts: conspiring to bribe an
executive officer (Pen. Code, §§ 182, 67), and bribing an executive officer (Pen. Code,
§ 67). Schumb’s alleged coconspirators are James Jensen (a sheriff’s department
captain), Harpaul Nahal (a private attorney), and Michael Nichols (a local gun parts
manufacturer). Unindicted coconspirators include three men affiliated with a private
executive security company called AS Solution, Inc., among them Martin Nielsen and the
company’s CEO, Christian West. The following factual summary is based on the overt
acts alleged in the indictment.
AS Solution provides contract security services for corporate executives. The
company wanted to secure local licenses to carry concealed weapons (CCW licenses),
which are difficult to obtain. Nielsen contacted Nichols about the CCW issue in spring
2018. Nielsen and West then had lunch with Nichols, Nahal, and Schumb. At that lunch
Schumb described his fundraising efforts for the reelection of Santa Clara County Sheriff
Laurie Smith, and he encouraged Nielsen to attend a SWAT competition where Nielsen
2
could meet Jensen. Nielsen attended the competition and was introduced to Jensen by
Nichols. The indictment alleges Nielsen and Jensen agreed at that time to the core
conspiracy: “AS Solution’s executive protection agents would receive CCW licenses
issued by the Sheriff in exchange for a donation from the company.”
Nielsen met with Jensen, Nahal, and Nichols in May 2018. They reached an
agreement that AS Solution would receive 10 to 12 CCW licenses in return for a $90,000
donation to support Sheriff Smith’s reelection. Jensen instructed Nielsen to have his
agents use false employer names and positions on their CCW license applications.
Nielsen delivered the completed applications to Jensen in summer 2018 and sent West a
text message confirming their submittal, stating “ ‘Chris Schaum [sic] will reach out to
me soon about financial part.’ ” Jensen met with Schumb at Schumb’s office in fall
2018. Jensen then instructed Nielsen that the first part of the donation would be $45,000
for a $5,000-per-plate fundraiser for the Sheriff’s campaign. Nielsen moved money from
AS Solution into his personal checking account, and delivered a check to Schumb in
October 2018 payable to the “ ‘Santa Clara County Safety Alliance.’ ” Schumb was a
treasurer of an independent expenditure committee with a substantially similar title (the
Santa Clara County Public Safety Alliance), whose purpose was to support Sheriff
Smith’s reelection campaign.
Nielsen complained to Schumb in early 2019 that AS Solution had not yet
received any CCW licenses. Schumb called Jensen. Less than a month later Jensen
signed shooting range qualification paperwork for Nielsen’s CCW license. Nielsen
obtained his CCW license in spring 2019, signed by Sheriff Smith.
Based on the foregoing, the grand jury returned the operative indictment against
Schumb, Jensen, Nahal, and Nichols. The indictment was filed in the superior court in
August 2020. In a press release announcing the indictment, District Attorney Rosen was
quoted as follows: “ ‘CCW licenses should not be given out in exchange for campaign
donations. They should not be for sale.’ ”
3
B. MOTION TO DISQUALIFY THE DISTRICT ATTORNEY’S OFFICE
Schumb moved to disqualify the entire Santa Clara County District Attorney’s
Office from prosecuting his case, arguing that his relationships with both Rosen and
Rosen’s chief assistant Boyarsky posed a conflict of interest that rendered it unlikely he
1
would receive a fair trial. In a supporting declaration, Schumb related that Boyarsky
introduced him to Rosen in 2010 just after Rosen was elected district attorney. Schumb
characterized his relationship with Rosen as that of a “political consultant, lawyer,
fundraiser, and friend.” Schumb also stated that he is a close friend of Boyarsky and his
wife. Both Boyarsky and Rosen attended fundraising events over the years as Schumb’s
guests. Schumb declared that Boyarsky had sought his help to mediate Rosen’s dispute
with Sheriff Smith’s office regarding access to recordings of jail inmate phone calls. He
attached to the declaration an email Boyarsky had forwarded to him about the jail call
dispute.
Schumb stated he had exchanged over 200 emails with Rosen since 2010, and
attached several representative emails to the declaration. Most involved helping Rosen
with campaign fundraising efforts, in one enlisting Schumb’s help to plan a fundraiser for
then-Attorney General Kamala Harris’s campaign for the U.S. Senate. Two email chains
involved requests by Rosen not associated with fundraising: one seeking help to fix a
vintage watch, and another seeking help to find tickets to purchase for a sold out concert.
Also attached in support of the motion to disqualify was a section from the Santa
Clara County District Attorney’s Office Policy and Procedure Manual, stating that an
“attorney or staff member of the District Attorney’s office shall not handle any case
where either the victim/complainant or the defendant is a friend or relative.” The manual
1
Codefendant Jensen joined in the motion, and separately argued that a leak of
grand jury transcripts to the press provided an independent basis to disqualify the district
attorney’s office. Jensen filed a separate petition in this court (case No. H048548) to
challenge the trial court’s denial of his motion, which we address in a separate opinion
filed today.
4
instructs that an attorney must notify the chief assistant district attorney in writing upon
discovering that a victim or defendant is a friend, and that the attorney “should not
thereafter read the file, or review the case.” We note that Boyarsky is the chief assistant
district attorney.
The Attorney General opposed Schumb’s motion, attaching supporting
declarations from Rosen and John Chase, the deputy district attorney in charge of the
underlying prosecution. Rosen declared that after he was elected district attorney in
2010, Schumb “became a political supporter, helped raise money for my subsequent re-
election campaigns, and gave me political advice.” Rosen denied that Schumb ever acted
as his attorney, and he stated that Schumb’s assistance amounted to only two percent of
the money Rosen has raised for his reelection campaigns. Rosen stated he learned about
Schumb’s alleged involvement in the conspiracy in July 2019, and that he instructed his
campaign staff to return all direct contributions Schumb had made to Rosen’s campaigns.
Chase is the lead prosecutor in the Public Integrity Unit of the Santa Clara County
District Attorney’s Office. He declared that he started investigating the conspiracy in
December 2018 when Rosen forwarded a tip from a local newspaper publisher about a
$45,000 donation to the Santa Clara County Public Safety Alliance independent
expenditure committee. Chase declared he met with Rosen and Boyarsky about the case
every two to three months in 2019, including four times that July. He met with Rosen
and Boyarsky periodically in 2020 as well, including nine meetings in July and August
“concerning the grand jury proceedings, charging decisions, and media releases.” Chase
denied that Rosen or Boyarsky directed him to focus his investigation on any particular
individual. Chase stated that he and his team “followed the evidence where it led without
any influence or pressure from anyone.” He acknowledged that he was aware Schumb
was a treasurer of the independent expenditure committee “from the very beginning,” but
that he did not discover evidence implicating Schumb in the conspiracy until July 2019.
5
At the hearing on the motion to disqualify, an email and an attached memo were
admitted as court exhibits. The email was from Rosen’s private email address, asking
what Schumb thought about an attached internal district attorney’s office memo
regarding a crime possibly committed by a government official. (The exhibits were filed
under seal in both the trial court and this court because the official mentioned in the
memo was never charged with a crime.) Schumb’s counsel argued the email showed that
Rosen sought advice from Schumb, and it demonstrated the closeness of their
relationship.
Schumb’s counsel also asserted at the hearing that he had been prevented from
fully investigating the extent of Rosen’s involvement in the case. Counsel stated he
subpoenaed all correspondence related to the case between Rosen, Boyarsky, and Chase,
but they objected on the basis of attorney work product and refused to turn over any
documents. Counsel argued that the extent of Rosen’s involvement could not be
determined “unless we put [Rosen] on the stand and have him testify as to everything that
he shared with Mr. Chase.” Ruling from the bench, the trial court denied the motion
without an evidentiary hearing. The trial court ruled that although there was “certainly
evidence to show a friendship,” the evidence was insufficient to show a conflict of
interest or that Schumb “has or likely would not receive fair treatment during all portions
of the proceedings.”
Schumb petitioned for a writ of mandate or prohibition in this court, arguing the
trial court abused its discretion in denying the disqualification motion. We granted his
request to stay the trial and issued an order to show cause. The Attorney General
opposed the stay and the petition. The Santa Clara County District Attorney’s Office has
not filed pleadings on its own behalf.
II. DISCUSSION
Penal Code section 1424 governs disqualification of a prosecutor: a
disqualification motion “may not be granted unless the evidence shows that a conflict of
6
interest exists that would render it unlikely that the defendant would receive a fair trial.”
(Pen. Code, § 1424, subd. (a)(1); hereafter section 1424.) The test for disqualification
has two parts: (1) whether there is a conflict; and (2) whether that conflict is so grave as
to render it unlikely that the defendant will receive fair treatment during all portions of
the criminal proceedings. (People v. Eubanks (1996) 14 Cal.4th 580, 592 (Eubanks).)
We review the trial court’s ultimate decision on disqualification under the deferential
abuse of discretion standard. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.)
We review any factual findings underlying the trial court’s decision for substantial
evidence. (Ibid.)
A. THE TRIAL COURT ERRED BY FINDING NO CONFLICT EXISTS
A conflict under the first part of section 1424 “exists 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. Thus, there is no need to determine
whether a conflict is ‘actual,’ or only gives an ‘appearance’ of conflict.” (People v.
Conner (1983) 34 Cal.3d 141, 148; accord People v. Cannedy (2009)
176 Cal.App.4th 1474, 1479–1480 (Cannedy).)
The relevant facts are undisputed, and the parties agree that substantial evidence
supports the trial court’s finding that Rosen and Schumb are friends. Rosen is the elected
Santa Clara County District Attorney. Boyarsky is Rosen’s chief assistant. Schumb has
known Rosen since 2010 or 2011. Rosen acknowledged in his declaration that Schumb
was a “political supporter, helped raise money for my subsequent re-election campaigns,
and gave me political advice.” That support included hosting fundraising events and
engaging in networking on Rosen’s behalf. Schumb and Rosen exchanged hundreds of
emails over the years, and in them Rosen often expressed his appreciation for Schumb’s
help. Rosen occasionally sought Schumb’s help with non-election-related activities, and
shared an internal district attorney’s office memo with Schumb to solicit his opinion.
Both Boyarsky and Rosen have attended fundraising events as Schumb’s guests. And
7
Boyarsky asked for Schumb’s help in mediating a dispute between Rosen and Sheriff
Smith about access to inmate phone recordings.
The charges against Schumb relate to his fundraising for the reelection campaign
of a high-ranking local official, Sheriff Smith. Schumb intends to call both Rosen and
Boyarsky as defense witnesses at trial. Rosen was aware of the investigation from its
inception, as he is the person who forwarded to Deputy District Attorney Chase the tip
leading to Schumb’s prosecution. According to Chase’s declaration, he reported to
Rosen in July 2019 that he had received information linking Schumb to the alleged
conspiracy. Although in August 2019 Rosen returned all contributions Schumb had
made to his reelection campaigns, nothing in the record suggests Rosen and Boyarsky
attempted to wall themselves off from Chase’s investigation. Chase declared that neither
Rosen nor Boyarsky directed him to focus his investigation on any particular individual.
But Chase also confirmed that he met with Rosen and Boyarsky every two to three
months in 2019 and periodically in 2020, including nine meetings in July and August
2020 “concerning the grand jury proceedings, charging decisions, and media releases.”
Rosen was quoted in the press release that announced the indictment of Schumb and the
other defendants.
The foregoing facts satisfy the first part of the section 1424 analysis,
demonstrating the existence of a conflict. Schumb is a friend of both the elected District
Attorney Rosen, and his chief assistant Boyarsky. And the nature of those friendships
parallels Schumb’s relationship with Sheriff Smith, the elected official for whom the
indictment alleges he conspired to collect a bribe. Given the factual underpinnings and
intersection of those relationships, we conclude as a matter of law that there is a
reasonable possibility that Rosen’s office may not exercise its discretionary function in an
evenhanded manner. (See Dean v. Dean (1963) 59 Cal.2d 655, 657 [“[A]n appellate
court will not interfere with the trial court’s action unless, as a matter of law, an abuse of
8
discretion is shown.”].) The trial court therefore abused its discretion when it found that
no conflict exists.
B. THE TRIAL COURT ERRED BY NOT DISQUALIFYING THE DISTRICT
ATTORNEY’S OFFICE FROM PROSECUTING SCHUMB
The second and critical question is whether the conflict Schumb identifies is “ ‘so
grave as to render it unlikely that defendant will receive fair treatment during all portions
of the criminal proceedings.’ ” (Eubanks, supra, 14 Cal.4th at p. 592.) To that end, a
court “must consider the entire complex of facts surrounding the conflict to determine
whether the conflict makes fair and impartial treatment of the defendant unlikely.” (Id. at
p. 599.) We are mindful that disqualification under section 1424 cannot be ordered
“merely because the district attorney’s further participation in the prosecution would be
unseemly, would appear improper, or would tend to reduce public confidence in the
impartiality and integrity of the criminal justice system.” (Id. at p. 592.) And the
“threshold necessary for recusing an entire office is higher than that for an individual
prosecutor.” (Cannedy, supra, 176 Cal.App.4th at p. 1481.) “If a defendant seeks to
recuse an entire office, the record must demonstrate ‘that the conduct of any deputy
district attorney assigned to the case, or of the office as a whole, would likely be
influenced by the personal interest of the district attorney or an employee.’ ” (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 373.)
After considering the moving papers and supporting declarations, the trial court
stated its view that “there is sufficient evidence before the court to rule on this issue
without the need [for] an evidentiary hearing.” In the first of the two-part analysis under
section 1424, the trial court found no conflict. It nonetheless went on to address the
second part of the analysis, namely the gravity of the conflict asserted by Schumb. (Cf.
Eubanks, supra, 14 Cal.4th at p. 598 [trial court’s reasoning “directed solely at the first
portion of the two-part test”].) The trial court stated in its ruling that, “I don’t believe
there’s evidence before the Court currently that shows that Mr. Schumb has or likely
9
would not receive fair treatment during all portions of the proceedings.” We therefore
consider whether the trial court abused its discretion in so finding.
The factual basis for Schumb’s prosecution is that he committed illegal acts
(conspiring to bribe a public official) while engaged in otherwise-legal activities (raising
campaign funds to support the reelection of that same elected official, Sheriff Smith).
Schumb has also raised funds extensively for District Attorney Rosen’s reelection
campaigns and, according to Schumb’s declaration, he has been called upon to intervene
in a professional dispute between those very officials, Rosen and Sheriff Smith. The
parties do not dispute that Schumb’s relationship with Rosen was fairly close, with Rosen
even asking for Schumb’s opinion about alleged criminal activity by a government
official. Rosen does not deny his relationship with Schumb, but has nonetheless
remained involved in the case. It also appears that Rosen and Boyarsky will be called by
Schumb to testify at trial, as both character witnesses and fact witnesses (about his
fundraising efforts for local politicians).
The foregoing facts create a strong incentive for Rosen’s office to aggressively
prosecute Schumb for two purposes, both to distance Rosen from any taint associated
with reelection money raised by Schumb, and to avoid the appearance of favoritism
toward a friend and campaign contributor. On these facts, it is unlikely that Schumb
would receive fair and impartial treatment if he is prosecuted by the Santa Clara County
District Attorney’s Office.
We respect that the threshold to disqualify an entire office is higher than that for
an individual prosecutor, but nonetheless conclude that office-wide disqualification is
required here. Significantly, the conflict involves Schumb’s friendship with the elected
district attorney rather than with a line deputy or other staff member. And despite that
conflict, Rosen and his chief assistant Boyarsky made absolutely no effort to create an
ethical wall between them and the prosecuting deputies after learning Schumb was a
suspect. To the contrary, Chase acknowledges in his declaration that he met with Rosen
10
and Boyarsky throughout his investigation, including meetings “concerning the grand
jury proceedings, charging decisions, and media releases.” Rosen’s and Boyarsky’s
continued involvement violates their office’s policy and procedure manual, which
proscribes involvement in any case where the defendant is a friend. The manual directs
that upon discovering such a conflict, the attorney “should not thereafter read the file, or
review the case.” Even assuming that an ethical wall could have earlier been established
to separate the prosecuting deputies from Rosen and Boyarsky, the case has progressed
too far at this point for that to be a realistic remedy. (See In re Charlisse C. (2008)
45 Cal.4th 145, 163 (Charlisse C.) [noting decisions that “where the attorney with the
actual conflict has managerial, supervisorial, and/or policymaking responsibilities in a
public law office, screening may not be sufficient to avoid vicarious disqualification of
the entire office.”].)
Both parties cite People v. Choi (2000) 80 Cal.App.4th 476 (Choi) but disagree
about its relevance. In Choi, a man named Tran was shot and killed in San Francisco less
than ten minutes before and about one mile away from where another man, Natali, was
shot and killed. (Id. at p. 478.) Natali was a close personal friend of then-San Francisco
District Attorney Terence Hallinan. Choi was arrested for Tran’s murder, and the phone
number of Choi’s girlfriend was found on Natali’s pager. Hallinan believed Choi was
also responsible for Natali’s murder, and made that belief known to the press. Choi
moved to disqualify the district attorney’s office from prosecuting him for Tran’s murder,
based on Hallinan’s relationship with Natali and Hallinan’s public statements that the
killings were related. The trial court denied the motion, but later granted a mistrial after
Hallinan continued to speak to the press about the alleged connection between the
homicides, directly contradicting the court’s voir dire instruction to the jury panel that the
crimes were unrelated. (Id. at p. 479.) Choi renewed his motion to disqualify the district
attorney’s office in light of Hallinan’s statements to the press. While the renewed motion
was under submission, Hallinan approached the trial judge ex parte seeking approval of a
11
letter to the editor he wished to send about the case. The trial court ultimately granted the
renewed motion to disqualify the entire district attorney’s office, a decision affirmed by
the Court of Appeal. (Id. at p. 480.) The Choi court reasoned that Hallinan had a clear
conflict of interest, and that disqualifying the entire office was appropriate to combat the
“potential bias that might result from the fact that [prosecuting] deputies are hired,
evaluated and promoted by the District Attorney.” (Id. at p. 483.) Importantly, the Choi
court affirmed disqualification of the entire office even though the office had attempted
to wall off Hallinan from the prosecuting deputies. The court explained that based on the
facts of the case it was “clear that the ethical wall in the district attorney’s office did not
prevent District Attorney Hallinan from communicating about the case to others within
the office.” (Ibid.)
Rosen’s connection to Schumb’s case is different from that in Choi, and arguably
more direct. Rosen’s relationship is with the defendant in the very case being prosecuted,
rather than with the victim in a separate case. And despite that connection, neither Rosen
nor Boyarsky observed an ethical wall to prevent the conflict from tainting the
prosecution. Here, just as in Choi, disqualifying the entire district attorney’s office is
appropriate to prevent any bias that could result from the fact that Chase and the other
prosecuting deputies are ultimately hired, evaluated, and promoted by Rosen. (Choi,
supra, 80 Cal.App.4th at p. 483.)
The Attorney General raises several issues in isolation, and urges us not to
announce any bright-line rules. Standing alone, any of the discrete facts identified by the
Attorney General might not necessitate office-wide disqualification: an elected district
attorney’s friendship with a defendant; that an elected district attorney will be called as a
witness at trial; and that an elected district attorney failed to follow his or her own
office’s policy requiring distance from any case involving a friend. But in this case we
have not only all of those individual factors, but also the fundraising and other factors we
have already discussed. Far from announcing any bright-line rule, our decision is simply
12
a recognition that the entire complex of facts here makes Schumb’s fair and impartial
treatment by the Santa Clara County District Attorney’s Office unlikely. (Hambarian v
Superior Court (2002) 27 Cal.4th 826, 834.)
The Attorney General argues Schumb has “pointed to nothing that would suggest
that Chase would not act fairly in conducting the trial were Rosen to be called as a
defense witness,” and contends that, if anything, Rosen’s friendship with Schumb would
inure to Schumb’s benefit because Chase might pull his punches when cross-examining
Rosen. But as we have noted, Rosen has an equally strong incentive to see that Schumb
is aggressively prosecuted. Without disqualification, Rosen would have firing authority
over the attorney who will be cross-examining him. That creates an unreasonable risk
that Chase would steer the cross-examination to serve Rosen’s interest potentially
compromising Schumb’s right to a fair trial. (See People v. Lepe (1985)
164 Cal.App.3d 685, 689 [“As the deputies are hired by [the district attorney], evaluated
by [him], promoted by [him] and fired by [him], we cannot say the office can be sanitized
such to assume the deputy who prosecutes the case will not be influenced by the
considerations that bar [the district attorney] himself from participation in the case.”];
quoted with approval in Charlisse C., supra, 45 Cal.4th at p. 164.)
The Attorney General contends disqualification is not necessary because the
“uncontested declarations established that while Rosen met with Chase about the
progress of the case, he did not direct, influence, or pressure Chase to make any particular
discretionary decisions that would be unfair to petitioner.” There are two problems with
that argument. First, Schumb was prevented from gathering evidence to contest the
declarations due to the assertion of attorney work product objections to his subpoena for
case-related correspondence between Rosen, Boyarsky, and Chase. The Attorney
General also insisted in the trial court that it was not necessary to conduct an evidentiary
hearing (during which Schumb’s counsel could have questioned Chase and Rosen about
their declarations). Second, the standard for disqualification does not require evidence
13
that Rosen actually directed, influenced, or pressured Chase. Schumb need show only
that he is unlikely to receive a fair trial, a standard we have already concluded he
satisfied.
The Attorney General asserts that Rosen’s continued involvement in the case,
including making statements to the press, “is to be expected, regardless of the identity of
the charged defendant,” because this is a high-profile public corruption case. Though
that may be accurate when an elected district attorney has no connection to a case, when
a conflict exists of the nature present here, the district attorney must ensure that he or she
takes no part in the prosecution.
Finally, the Attorney General complains that Schumb presents inconsistent
theories about how he will be treated unfairly if the district attorney’s office is not
disqualified: “Is petitioner being prosecuted to ‘punish both Schumb and Sheriff Smith’
[citation] or is petitioner being prosecuted because he is such a good friend that to not
prosecute him would leave Rosen open to favoritism accusations?” The Attorney
General argues that the “fact that petitioner can allege both theories on the same evidence
demonstrates the speculative nature of his claims and the insufficient basis for recusal.”
But Schumb’s motion is not based on mere speculation, and it does not fail merely
because it advances two plausible reasons that he is unlikely to receive fair treatment if
the district attorney’s office is not disqualified.
We conclude the trial court erred by not disqualifying the Santa Clara County
District Attorney’s Office from prosecuting Schumb in this action. His prosecution must
therefore be severed from that of his codefendants.
III. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its
September 17, 2020 order denying petitioner Christopher Schumb’s motion to disqualify
the Santa Clara County District Attorney’s Office and to enter a new order granting the
motion to disqualify and disqualifying the Santa Clara County District Attorney’s Office
14
from prosecuting petitioner Christopher Schumb. Upon finality of this opinion, the
temporary stay order is vacated.
15
____________________________________
Grover, J.
WE CONCUR:
____________________________
Elia, Acting P. J.
____________________________
Wiseman, J.
H048548 - Jensen v. Superior Court
Retired Associate Justice of the Court of Appeal, Fifth Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Trial Court Santa Clara County Superior Court
Case No.: C2010724
Trial Judge Hon. Eric S. Geffon
Attorneys for Petitioner Kathleen Sherman
Christopher Schumb Kathleen Sherman Law
J. Joseph Wall, Jr.
Wall Law Firm
Attorneys for Respondent Xavier Becerra
The Superior Court of Santa Clara Attorney General of California
County Lance E. Winters
Chief Assistant Attorney General
Attorneys for Real Party in Interest Jeffrey M. Laurence
The People Senior Assistant Attorney General
Seth K. Schalit
Supervising Deputy Attorney General
Bridget Billeter
Deputy Attorney General