State court reverses BLM protest ruling as SLO County DA fights to stay on Tianna Arata case
The California Court of Appeal reversed its earlier ruling and now says it should be the judicial body to decide whether the San Luis Obispo County District Attorney’s Office remains on the criminal cases against seven Black Lives Matter protesters accused of offenses during a July march on Highway 101.
The court had ruled last month that it would not hear arguments over a San Luis Obispo County judge’s disqualification of local prosecutors in the two co-defendant cases largely on procedural grounds.
Instead, the court ruled March 11 that the ongoing appeals in the four-defendant misdemeanor case involving activist Tianna Arata, as well as the three-defendant felony case against protesters who clashed with a motorist on the highway, would all be heard by three local judges who preside over San Luis Obispo Superior Court’s Appellate Division.
But after the Attorney General’s Office sent a petition March 16 asking the court to reconsider, the three-judge panel on Wednesday vacated its earlier ruling, saying not only should it make the decision in the three-defendant felony case, but also that it would “entertain” a motion from local prosecutors that it also review the misdemeanor case involving Arata should local judges not forward the case on their own.
The ruling issued Wednesday does not explain the reasoning behind the panel’s decision.
The surprise reversal is the latest turn of events since proceedings stalled in the two cases when Superior Court Judge Matthew Guerrero granted a defense motion in December removing the entire District Attorney’s Office from prosecuting the cases, due to a “clear conflict” presented by an email sent from the re-election campaign of District Attorney Dan Dow that appeared to reference the protesters’ cases in seeking financial contributions.
The District Attorney’s Office and the state Attorney General’s Office, which would take over as prosecuting agency, appealed Guerrero’s ruling in January.
Assistant District Attorney Eric Dobroth on Thursday said the ruling “moves us one step closer to a decision by the Court of Appeal and one step closer to the trial of these matters where a decision can be made by members of our community.“
Bay Area attorney Brian Ford, who is representing Robert Lastra, the only defendant facing a felony for smashing the back windshield of a vehicle that struck another co-defendant during the protest, said Wednesday night that whether it’s before the state or local court, his client is eager to move forward.
“We are pleased to be back in front of the Court of Appeal, and we look forward to winning on the merits now that the matter of jurisdiction is resolved,” Ford wrote in an email. “Frankly, we’re just happy to get on with it — the appeal has no merit regardless of which court hears it.”
Ford also said he’s is looking forward to an April 23 San Luis Obispo Superior Court hearing in which a Superior Court judge will rule on several challenges from both parties, including a prosecution request for a gag order, as well as defense motions to hold the District Attorney’s Office in contempt of court for allegedly withholding discovery ordered released by Guerrero and dismiss the cases.
“(The prosecution’s) disregard for the Superior Court’s orders has been appalling, and their recent attempts to intimidate the defense with baseless requests for retaliatory orders must be punished,” Ford added.
Curtis Briggs, one of two attorneys representing Arata, said Wednesday that the procedural aspects of the case have been confusing, but that he expects the local court to send the appeal in his client’s case to the state as well.
“The benefit of having the appellate court decide the disqualification issue is that we could make new law,” Briggs wrote in an email. “We want to advance the civil rights movement, and the appellate court is the best place to do it.”
Appeals court agrees with the attorney general
With the exception of Lastra, each defendant in the two cases faces misdemeanor charges ranging from vandalism to false imprisonment. Arata faces the most charges with 13 misdemeanor counts.
The maximum penalty for a misdemeanor is six months in County Jail and a $1,000 fine. Parties involved say jail time is unlikely in the protest cases if defendants are convicted.
Both sides have pledged to take the cases to trial, and five of the eight defendants have rejected offers from the DA’s Office for a diversion program that would result in the charges being dismissed following community service.
When the District Attorney’s Office appealed Guerrero’s ruling, it filed appeals in the three-defendant felony case involving Lastra, Sam Grocott and Jerad Hill to the state Court of Appeal, because the charges included a single felony against Lastra.
The appeal in the four-defendant case involving Arata, Marcus Montgomery, Amman Asfaw, and Joshua Powell, was filed locally in the Superior Court’s own Appellate Division, which is common for cases that include only misdemeanor charges.
In its original March 11 order, the Court of Appeal wrote that it was premature for the state to consider the case because it hadn’t proceeded far enough at the local level.
Citing the case against Lastra, the court said it could not review the case because the accusations against Lastra have not yet been presented to a judge in an evidentiary hearing known as a preliminary hearing.
If a judge finds probable cause exists to support charges following testimony in a preliminary hearing, the judge will “certify” the prosecution’s complaint and move the case toward trial. Before that, a complaint filed by prosecutors is merely an accusation, the Appellate Court wrote.
None of the protesters’ cases reached a preliminary hearing before legal challenges halted the case, and therefore, Lastra “has not yet been ‘charged with a felony,’” the Appellate Court wrote.
But in the March 16 petition for a rehearing, Deputy Attorney General Charles Lee wrote that the Attorney General’s Office wasn’t allowed a chance to respond to defense challenges that led to the appellate court’s initial decision.
Had he had an opportunity, he would have argued that the court’s interpretation of the law would “lead to absurd results” if applied to all criminal cases.
“If (the law cited by the appellate court) were to govern recusal appeals, then every case in which a district attorney’s office is recused before an information, indictment, or certified complaint is filed would be deemed a misdemeanor for appellate purposes, up to and including special circumstance murder cases,” Lee wrote in the petition.
In response Wednesday, the Court of Appeal wrote only that it agreed that “Lastra’s case involves a charge punishable as a felony and is properly heard in this court.”
Though Lastra’s co-defendants are only charged with misdemeanors — and the appeals in their cases should have been filed with the Superior Court — the Court of Appeal wrote that it would retain the entire three-defendant case “to secure uniformity of decision.”
Additionally, the court wrote that it has taken possession of court records in the four-defendant misdemeanor case against Arata and others, and that the court “will entertain a petition to transfer the (SLO Superior Court) appellate division case ... if the appellate division denies the currently pending application for transfer.”
A representative from the Superior Court was not immediately available Thursday for information about what the local appellate judges could do next.
This story was originally published April 8, 2021 at 11:07 AM.
