FILED

DEC 112023 .

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO
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11 People of the State of California, Case No.: 20M-055 12, 20F-0636l

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Plainti‘, RULING ON MOTION T0
13 DISQUALIFY THE SAN LUIS
vs. OBISPO COUNTY DISTRICT
14
ATTORNEYS OFFICE
15 TIANNA ARRATAWENTWORTH,
MARCUS LEE MONTGOMERY, [California Penal Code § 1424]
16 AMMAN ASFIL ASFAW, JOSHUA
17 POWELL, ROBERT ANTHONY
LASTRA, JR., SAM JEFFERY
18 GROCOTT AND JERAD DYLAN
19
HILL,
20 Defendant.
21

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This above-entitled matters arise from allegations concerning Black Lives Matter
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(BLM) protests that occurred during beginning in May 2020 and continuing to the
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present time. By way of motion, the above-named defendants have led a Motion to
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Disqualify the San Luis Obispo County District Attomey’s Ofce pursuant to Penal
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Code § 1424.
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There are numerous criminal lings stemming from the BLM protests. These
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include 20M-05512 and involve defendants Tiana Isis ArrataWentworth, Marcus Les

Montgomery, Amman Asl Asfaw, and Joshua Powell; 20F-06361 and involve
 defendants Robert Anthony Lastra, Jr., Sam Jeffery Frocott and Jerad Dylan Hill; and

20F-05511 involving Elias Bautista. The instant motion is led or joined by Ms. Arrata,
Ms. Asfaw, Mr. Grocott, Mr. Hill, Mr. Lastra, Mr. Montgomery and Mr. Powell.

The Court has read and considered the briefs led by the defendants in this
matter and the oppositions led by the prosecution as well as the oral arguments. Due to
the amount of information contained therein, the Court is not reciting the facts nor the
arguments, except as contained herein as necessary to make this ruling.
Penal Code § 1424 provides that a motion to recuse a prosecutor for a conict of
interest “may not be granted unless the evidence shows a conict of interest exists that
10 would render it unlikely that the defendant would receive a fair trial.” Where a
11 defendant seeks to recuse not just an individual prosecutor but also an entire prosecuting

12 ofce, the defendant’s showing must be “especially persuasive.” (People vs. Hamilton

13 (1988) 46 Cal.3d 123, 139.)

14 A District Attorney may be disqualied from prosecuting a case when a prior

15 association or conict of interest makes it impossible for him or her to act. In

l6 determining whether a prosecutor must be recused, the court must consider: “(1) is there
17 a conict of interest?; and (2) is the conict so severe as to disqualify the district

18 attorney from acting?” (Haraguchi vs. Superior Court (2008) 43 Cal.4‘h 706.) The
19 motion must not be granted unless the evidence shows that a conict of interest exists
20 that would render it unlikely that the defendant would receive a fair trial. (Penal Code §

21 1424.) A prosecutor must perform his or her job with the utmost integrity and
22 impartiality. Nothing is gained by public prosecution if the district attorney is subject to
23 conicting personal interests that may compromise the impartiality of his ofce.
24 (People vs. Superior Court (Greer) 19 Cal.3d 255, 267.) For example, nancial
25 assistance by a victim to the district attomey’s investigation may disqualify the

26 prosecutor if the assistance is “of such character and magnitude as to render it unlikely
27 that, the defendant will receive fair treatment during all portions of the criminal
28 proceedings.” (People vs. Eubanks (1996) 14 Cal.4"‘ 580.)
 A prosecutor must be disqualied where it is shown that an actual or apparent

conict of interest makes it unlikely that the defendant will receive fair treatment during
all portions of the criminal proceedings. (Penal Code § 1424; see also People vs.

Vasquez (2006) 39 Cal.4"‘ 47, 56.)

Defendants make a number of factual assertions and argument in support of their

motion. The Court relies on the following evidence as the basis for the ruling, as well as

the motions led by all parties:

August 11, 2020 — Mr. Dow appeared on Washington Watch with Tony
Perkins. Mr. Perkins of the Family Research Council has described the
Black Lives Matter movement as a “Marxist” group who promote “cop
10 killings, prostitution, anti-Semitism, anarchy, and the suppression of speech
and religion.”
ll September 4, 2020 — Mr. Dow explained his charging decision in the
“PRotect Paso” Facebook group. Documents attached showed animosity to
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the Black Lives Matter group - their Constitutional right. These claim that
13 the BLM movement is “domestic terrorism;” “down right evil, no brains or
souls,” and posted pictures of a BLM billboard burning in ames. Members
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of the group have “discussed their skills as hunters and claim they will use
15 these skills to protect Dan Dow, and “protect our own.” (Ex K — Defense
Motion).
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September 4, 2020 — Mr. and Mrs. Dow sent out a campaign fundraising
17 request via email on his birthday. This email sought nancial campaign
contributions and stated, “Dan needs to know more than ever that you
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support him, and he really needs your nancial support so he can keep
l9 leading the ght in SLO County against the wacky defund the police
movement and anarchist groups that are trying to undermine the rule of law
20 and public safety in our community.” (EX L — Defense Motion.) “We had

21 planned his kickoff re-election campaign fundraiser to be this month, but due
to COVID and all the crazy protest activity, we were not able to pull it of .”
22 The fundraiser continues, “You can send Dan a Happy Birthday message in
the comments section when you make a generous nancial contribution
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TODAY to his campaign for reelection.” “Your support will help to ensure
24 that Dan will continue in spite of the ‘defund police’ and George Soros type
of opposition happening against DA’s all over the state and nation.” The
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exhibit shows that this was “Paid for by Dan Dow for District Attorney 2022
26 FPPC ID #1361413”.
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October ll, 2020 Mr. Dow appears alongside Candace Owens and spoke at a
fundraiser for the “New California,” a secessionist organization. At the
28 event, Ms. Owens called BLM “one of the most racist movements that ever
existed in this country.” When questioned, Mr. Dow wrote a letter to the
Tribune advising, “Candace Owens is a bright and intelligent, fearless
 woman and a role model for young women everywhere.” Mr. Dow has been
quoted as stating that “She speaks the truth.”
o Despite the allegations contained in the motions, including a letter from one
alleged victim’s attorney, the Court is not considering the allegations against
District Attorney Investigator L’Heureux as no admissible evidence was
offered to the Court for consideration. The Court is also not considering the
“letter from Heidi Harman” (EX P) nor the Tribune editorial (EX A). These
are opinion pieces, not from expert witnesses and have no evidentiary value
for the Court.
The activities identied are done so to give context to the September 4

fundraising email distributed by Mr. Dow, less than 48 hours aer initially ling
charges, and is not provided to criticize the content nor the declarants. Throughout these

10 proceedings the contents of the September 4th email have not been addressed by the

11 District Attorney nor the Attorney General. The Court takes judicial notice that the

12 BLM protests have included demands to defund the police, specically addressed in the

l3 fundraising email.

14 Fundamentally, no defendant is entitled to a prosecutor to which they are

15 politically, socially or ideologically aligned. Mr. Dow, as a private person and, as an

l6 elected ofcial, benets from the First Amendment of the United States Constitution

17 and he has an absolute right to exercise that right, as do each of the other individuals and
18 organizations referenced herein. In no way does this Court seek to chill the exercise of

l9 free speech. Where Mr. Dow sees illegal wrongdoing, his duties allow him discretion to

20 prosecute.

21 FINDINGS
22 The September 4, 2020 email establishes a clear conict of interest. First, by

23 delivering this fundraising email to potentially tens of thousands of people immediately

24 aer the ling of charges, Mr. Dow sought political and professional benet and

25 campaign contributions in conjunction with the prosecution of the above-entitled cases.

26 This creates bias towards charging and the particular outcome, which makes it unlikely

27 that the defendant will receive fair treatment during all portions of the criminal

28 proceedings. Second, the statement used inammatory terms such as “anarchist”,

“crazy” and “wacky”, which is an extrajudicial statement made to potential jurors in an

 attempt to sway them and get them to make a nancial contribution. This interferes with
the Defendants right to a fair trial.

The men and women charged here are entitled to a prosecution not clouded by

political or personal advantage to the prosecutor. This is especially pointed in a case

where the defendants are protesting injustice and systemic bias. The Court must protect

all parties’ right to due process and to seek justice.

The Court nds an apparent and actual conict of interest making it unlikely that
the defendants will receive fair treatment during all portions of the criminal proceedings.
The Court also nds that this disqualication due to compromises the

10 impartiality of the entire ofce of the San Luis Obispo District Attorney. Mr. Dow is
ll the elected ofcial of a relatively small ofce with less than 40 attorneys. Each attorney
12 answers directly to Mr. Dow and has a relationship with Mr. Dow.

13 The Motion to Disqualify the San Luis Obispo District Attorneys Ofce is
14 granted and the Attorney General of the State of California is directed to represent the
15 People of the State of California in these matters.
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Dated; (z
‘
”MC
MATTHEW G. GUERRERO
18 Superior Court Judge
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