Appellate court asked to reconsider Judge Guerrero’s ruling

March 18, 2021

By KAREN VELIE

In the latest tussle over the criminal cases regarding a group of Black Lives Matter protesters who blocked Highway 101 in San Luis Obispo last summer, the California Attorney General’s Office is again asking the appellate court to hear their appeal of Judge Matthew Guerrero’s recusal of all county prosecutors.

In early January, the attorney general filed two appeals, one in the felony case against Robert Lastra — the protester who allegedly smashed a car window onto a 4-year-old boy — and one in the misdemeanor filings against the remaining six defendants. Generally, the 2nd District Court of Appeal hears felony appeals, while a panel of three SLO County Superior Court judges rule on misdemeanor appeals.

San Fransisco based attorney Brian Ford argued that Lastra’s appeal should be moved to the SLO County Court. In his request, Ford noted case law regarding a felony that had been dropped to a misdemeanor.

Without providing the Attorney General an opportunity to respond to Ford’s assertions, the Second Appellate District Court determined the SLO County Superior Court had jurisdiction over the appeal, according to the petition for a rehearing.

In his March 16 petition, Deputy Attorney General Charles Lee argues that an appeal of a recusal order is a felony appeal so long as the case contains a charge punishable as a felony, even if the charge is also potentially punishable as a misdemeanor.

If Ford’s legal assertions are accurate, “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,” according to Lee’s petition for a rehearing.

If the Second Appellate District Court rules in favor of Lee’s petition, the attorney general wants the misdemeanor appeals to also be heard by the appellate court, to avoid conflicting results that could occur if the superior court hears the misdemeanor appeals while the appellate court rules on the felony appeal.

During a Dec. 10 hearing, defense attorneys argued that District Attorney Dan Dow’s personal political opinions jeopardized the seven defendants’ rights to a fair trial. The defendants include Tianna Arata, Lastra, Sam Grocott, Jerad Hill, Marcus Montgomery, Joshua Powell and Amman Asfaw.

In opposition to the defense, prosecutors argued against the disqualification, noting the defense is required to show an actual conflict of interest and not a perceived conflict.

Judge Guerrero then ruled that Dow had a clear conflict of interest based on the wording of an email he and and his wife sent to supporters seeking donations. The email asked supporters to help Dow lead the fight against the “wacky defund the police movement and anarchist groups that are trying to undermine the rule of law and public safety in our community.”

Regardless of whether the appellate court or three SLO County judges hear the appeal, after legal briefs are filed by both the prosecutors and the defense attorneys, oral arguments will be scheduled and held before any decision is published.