State seeks rehearing over appellate ruling on SLO County prosecutors

September 19, 2022

Tianna Arata standing on a highway barrier

By KAREN VELIE

The Court of Appeal should rehear a dispute over the disqualification of the entire San Luis Obispo County District Attorney’s Office in a case against seven Black Lives Matter defendants because of factual errors and omissions in the record from the trial court, according to the rehearing requests from both the California Attorney General’s Office and SLO County.

“The Court of Appeal was guided by a deficient trial court record as described in both petitions,” wrote Assistant District Attorney Eric Dobroth in an email. “The district attorney fully intends to petition the California Supreme Court for review in this matter should the Court of Appeal opinion remain unchanged.”

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, yelled profanities at some of the drivers and in one case threw a skateboard through a car window.

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 SLO County District Attorney Dan Dow’s personal political opinions jeopardized the 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.

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.”

Three appellate court judges ruled earlier this month that Dow’s personal political opinions jeopardized the defendants’ rights to a fair trial. 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 Judge Guerrero’s ruling.

On Sept. 15, the state filed its request to have the appellate court correct the factual errors and omissions. The state and the county pointed at multiple issues regarding dates, facts and allegations in the appellate court’s analysis:

The court explained that Dow filed charges against Arata on the same day that his wife sent an email asking for donations, and the same day Dow posted on the Protect Paso Facebook page. However, the email and the post occurred two days after the filing of charges.

The court’s opinion suggests that Arata was the only BLM participant initially charged by local prosecutors. However, prosecutors filed charges against Elias Bautista and Arata on the same day.

The court determined Dow showed bias when he appeared on Washington Watch with Tony Perkins, who according to the court has described the BLM movement as a ‘Marxist’ group who promote cop killings, prostitution, anti- Semitism, anarchy, and the suppression of free speech and religion.’

However, the Perkins show Dow appeared on was about religious freedom, and neither Dow nor Perkins mentioned or discussed BLM. According to the request for a rehearing, there is no evidence that Dow was aware of Perkins’ views on BLM.

In a similar vein, in making their decision, the court reported that Dow attended a speech by Candice Owens. The court noted that Dow wrote a letter to the Tribune stating that “she spoke the truth,” in an attempt to show that Dow agreed with Owens’ view that BLM “is one of the most racist movements that ever existed in this country.”

However, Dow did not send a letter to the Tribune, instead he responded to questions from former Tribune reporter Matt Fountain asking about Dow’s view on Owens’ speech, which never mentioned BLM.

The court also 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, as attachments to a post Dow made.

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 page 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.”

Some members of the page then chastised the BLM protesters.

And while the court refers to the posts as Dow’s attachments, Dow “did not attach those comments as exhibits to his social media post,” according to the state’s request for a rehearing. “There is no evidence in the record that District Attorney Dow was aware of the comments.”

The appellate court is unlikely to make a ruling until the other parties have had a chance to respond to the petition for a rehearing.


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Jorge Estrada

There is absolutely no reason to hear this case elsewhere. Certainly the message and violations were not delivered elsewhere. If there was an intent to have public sympathy, then this discourse should have been conducted where the demographics are tailored for this form of hate speech.


GreatGuy

Actually there are plenty of reasons to try this case outside San Luis Obispo county. You can read some of the reasons in documents presented by judges and other legal experts. What we’re not hearing is many reasons why this trial should be held in San Luis Obispo county. Who, exactly, would benefit from this?


kevin rise

DA Downer is a woke grifting gasslighter. Political pandering. The dude makes over 300k a year. No different than Debbie Arnold saying the election was stolen and a local recount; re gardless of Gongs wife’s BS. DA Dow is a politician, not an attorney. Which is clearly a conflict of judicial interest. Deny the facts. I don’t want a Lib or Conserv Judges Personal beliefs itnerfering with LAW. so many woke right and left, 2 sides of the same coin. Both sides burn books and cast stones in a glass house looking like a bunch of Snowflakes. Dow is a Snowflake. Parkinson is a Snowflake, Debbie is a snow Flake. John Ham is the biggest most unique snowflake. Bruce Gibby is a snowflake, and the list goes on. SLO county needs new representation, not political rich snow Flake hacks.


GreatGuy

Dow is struggling to make the case that the trial should be held in San Luis Obispo county.

Can we imagine him doing any better if he brings the case to court. At this point, the defendants are probably hoping it will be held in San Luis Obispo County, expecting more embarrassing screw ups from the local DA.

He should’ve just issued a jaywalking ticket and expressed sympathy, acknowledging prejudice and other hardships black men and women have suffered in our nation, and appreciating why there may be an urge to protest the treatment of people of color, Considering so many have been killed needlessly by Government employed law-enforcement agents.


slo_full_of_slow_learners

Dow needs to let this go. Let it be tried in a different county who cares. Law is Law. Let the court do it’s job.


kevin rise

He’s a unique snowflake, he must be seen. He is doing God’s work here for our local Woke right.


EyesOpen

Dow desperately wants the political capital he’d gain with his religious, forced-birth, pro-white base in order to raise money to move up the political ladder. The fact that the campaign donation letter, and what it said, went out 2 days (and I don’t care if it was before or during) after charges were filed are enough to have the case tried outside the venue of San Luis Obispo court. Dow (and others’) views that church and state should be inseparable is what really bothers me. He obviously was emboldened by Trumpism. I actually voted for him the first time he ran. He’s poisoned his position as DA.


shishkabob141

Accountability, accountability, accountability!


GreatGuy

Accountability happens no matter what county the trial takes place in. But if the trial happens in San Luis Obispo county, no matter what the outcome, some people will say it was unfair. If judges are insisting that the trial be more fair if conducted in a different county, then let that happen. The location of a trial should not be based on what is politically or legally advantageous to the local district attorney. The goal should be fairness, and the perception of fairness, above all else


kevin rise

The Da is so woke grifter gaslighter, he’s got this dialed for Jesus.


GreatGuy

I fail to see any benefit that San Luis Obispo county residents receive by having the trial in San Luis Obispo County. The trial may generate protest marches and chaos, it is certainly not going to generate good publicity for our community.

Why does Dow want to have that mess in our own backyard? If judges want the trial to be held in a different county, so be it. What’s the big deal? Is Dow fighting against this for the benefit of our people or his own selfish political agenda?