Appellate ruling on SLO County prosecutors rife with factual inaccuracies

September 2, 2022

Tianna Arata, in the center, stomping on a burnt flag


Three appellate court judges ruled this week that San Luis Obispo County District Attorney Dan Dow’s personal political opinions jeopardized seven Black Lives Matter defendants’ rights to a fair trial and that local prosecutors should be replaced by the California Office of the Attorney General, a decision that is likely to be appealed because of multiple factual inaccuracies.

In their appeal, prosecutors argued that the alleged facts the trial court relied on, while not calling any witnesses, were false. In his opinion, Judge Arthur Gilbert wrote that the trial court is better at “assessing witness credibility and making findings of fact.” Judge Gilbert then parroted numerous factual errors from the trial court’s ruling.

During a July 21, 2020 march, Tianna Arata allegedly led approximately 300 protesters onto Highway 101, blocking all lanes in both directions for nearly an hour. While on the highway, protesters ran after vehicles attempting to drive off the freeway and yelled profanities at some of the drivers.

While law enforcement sought multiple felony charges against Arata, prosecutors instead charged Arata with 13 misdemeanors. The district attorney also filed charges against Elias Bautista, Jerad Hill, Sam Grocott, Robert Lastra, Marcus Montgomery, Joshua Powell and Amman Asfaw.

Defense attorneys argued that Dow’s personal political opinions jeopardized the seven defendants’ rights to a fair trial, and that local prosecutors should be replaced by the California Office of the Attorney General, a request Judge Matt Guerrero approved.

Judge Guerrero then ruled that the entire District Attorney’s Office had a clear conflict of interest based on the wording of an email Guerrero said Dow and his wife sent to supporters seeking donations. The email asks Dow’s supporters to help him 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.”

In early Jan. 2021, the California Attorney General’s Office and the SLO County District Attorney’s Office appealed Guerrero’s ruling to recuse the entire district attorney’s office because it “fell well short of the statutory standard.”

“The trial court abused its discretion by ordering disqualification of the District Attorney’s Office based upon unsupported factual findings and incorrect legal conclusions,” according to the Attorney General’s Office. “Respondents failed to establish that there was an actual and disqualifying conflict of interest.”

The Attorney General’s Office argued Guerrero relied on newspaper articles and a “patchwork of unreliable hearsay,” which even if reliable does not qualify as a conflict of interest.

Arata’s attorneys referred to the views of people Dow associated with in person and on social media in seeking recusal of Dow’s office. The State Attorney General’s Office referred to the allegations as “guilt by association.”

For example, Arata’s attorneys referred to posts on the Protect Paso Facebook page that chastised the marchers for shutting down the highway and stopping drivers from leaving the area.

Members of the conservative Facebook page voiced their disapproval after Dow’s office did not charge Arata with felonies. Dow responded to the complaints on the Protect Paso Facebook on Sept. 4, 2020.

“I did not cave on anything,” Dow wrote on Facebook. “I am seeking accountability and justice by charging appropriate crimes for what evidence was submitted to my office. The law does not support felonies being prosecuted for the conduct in this case.”

In their brief, Arata’s attorneys argued Dow’s office should be disqualified based on what other people had posted on the Protect Paso Facebook page “that showed strong antipathy toward BLM.”

The appellate judges parroted Judge Guerrero, and referred to the posts of other people on Facebook as attachments to Dow’s post. However, Dow provided no attachments to his Facebook post.

In addition, the appellate judges concurred that Dow’s support of Candice Owens, a conservative black woman, disqualified him from prosecuting Arata because Owens is opposed to the BLM movement.

In his opinion, Judge Gilbert refers to a letter Dow wrote to the Tribune saying “Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.” However, Dow did not write a letter to the Tribune, he answered email questions from former reporter Matt Fountain.

The opinion says that Dow’s office filed charges against only one person, Arata, on Sept. 4, 2020, the same day he posted on the Protect Paso Facebook page and that his wife sent out the email seeking donations. In actuality, Dow’s office filed charges against Arata and Elias Bautista on Sept. 2, 2020, two days before the email or the Facebook post.

Based on multiple factual inaccuracies in Gilbert’s opinion, experienced local attorneys believe an appeal is likely. The State Attorney General’s Office is currently considering its options.

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The campaign fundraising letter purportedly penned by Dow’s wife was sent out immediately after the DA received criticism on his decision to not file felony charges. The PROtect PASO FB page is where the criticism was publicly aired. The criticism preceded and precipitated the fundraising letter. They are not unrelated, as the above claims by the DA’s office & the state AG’s office claim.

So where are the charges for the Trump Train folks who repeatedly backed up traffic for miles and slowed emergency vehicles from getting where they need to go? How about a little consistent philosophy here from folks?

Personally I have no problem with either of these groups, nor the group of truckers that took the streets here and in Canada last year. Protesting is part of the process in a free country, even when it causes inconveniences.

It seems like people think that it’s not ok for one group to do it, but “it’s different” when it’s someone they support.

This freeway protest was enacted in despair, in response to the fact that barely a month goes by America when an unarmed black man or woman is not shot by government agents.

Being young and black in America means living in a near constant state of trauma and /or fear. There remains a good portion of black men and women who literally fear that slavery will be enacted again in America. The fact that some white people really hope it does makes things even a little more traumatic and worthy of protest.

Nobody was hurt in the freeway protest. Trying to throw the book at any of the participants is an selfish, idiotic and egotistical and mean- spirited waste of time and huge amounts of taxpayer money.

I suspect Dow would like it if there were more protests so he could come out and act like a big Law order hero. And that is exactly why it is not to the benefit of our county to have the trial here. Dow screwed up from day one on this deal and doesn’t seem to have the courage or moral integrity to dial it back now that it’s obvious he screwed up.

Hundreds of people, mostly white, go onto the freeway and Dow focuses most of his prosecutorial efforts on a young black lady with a megaphone, while the hundreds of white people walk away, to later be characterized as a victims led astray by the young black college student.

Dow then goes over the top in his zeal to prosecute that he literally charges the young black lady with, among other things, kidnapping. Then he and his wife brag about their exploits to their church members.

Let’s not even go into the insane amount of taxpayer money Dow’s office has spent on trying to throw the book at the lady. He could’ve just recommended giving the woman a jaywalking ticket in this whole ridiculous expensive mess would’ve been over.

Dow, I think, has made a series of very bad decisions that have done nothing to make our community safer or happier.

Jay walking ticket? That’s absolutely ludicrous. Prosecuting the leader groups has the most impact. She deserves every bit of punishment she gets. I hope for the maximum.

Tianna Arata did not allegedly lead approximately 300 protestors to block the 101, she did lead approximately 300 protestors that did block the 101, including an innocent victim who was in labor trying to get to the hospital. She also disrespectfully lit on fire and stomped on the American flag. Ms Arata’s crime needs to come to some kind of a conclusion with Ms. Arata being held accountable to her behaviors that endangered many lives.

tidepool your opinion seems awfully biased on behalf of the prosecutor. Why not allow justice to take its course in this very fair trial so the jury can decide based on the evidence presented?

Also “stomped on the American flag” is not a crime, “flag burning constitutes a form of “symbolic speech” that is protected by the First Amendment. The majority noted that freedom of speech protects actions that society may find very offensive, but society’s outrage alone is not justification for suppressing free speech.”

No woman was in labor. You are repeating misinformation.

Hell, have them serve in the US military.

Might just grow up get an appreciation for our country and laws.

Just a thought….

Yeepers, give a world view. This country is great.

I’ve been in the Guard for just under 16 years now. The military doesn’t solve people’s problems. It can provide people an opportunity to solve their own problems, if they’re willing to do some reflection. But the old practice of giving offenders a choice between jail and the military was dropped long ago, and for good reason. The ones who act up like this on the outside will generally (there are always exceptions, of course) act up in uniform, and discipline and unit cohesion suffer as a result. I think a nice big helping of community service, picking up trash and pulling weeds, would be far more instructive for these people.

This is why our justice system is messed up. You can have a video of someone doing a crime and a person in a certain office has a opinion and suddenly it’s a unfair case. She is obviously not paying these lawyers to fight the misdemeaner charges and it’s also all Political theater

Predictable from our juvenile biased courts….

BLM = criminals