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Name: People v. Hernandez
Case #: S020244
Court: CA Supreme Court
District CalSup
Opinion Date: 06/02/2003
Subsequent History: None

The deputy District Attorney assigned to prosecute appellant’s capital murder case became ill on the first day of trial, and another deputy, Berrett was assigned to prosecute the case. The defense moved to recuse Berrett because she was a witness subpoenaed by the defense. (She had been at the crime scene on the night of the murder and could also testify concerning compensation offered to another witness in return for his testimony.) The court recused Berrett from any further participation in the trial. On appeal, appellant argued that Berrett violated the trial court’s recusal order by remaining involved in the case, by reassigning it and by preparing a questionnaire for use during voir dire. The appellate court affirmed, finding no violation of the court order. There was no evidence to show that Berrett was involved in a supervisory manner other than the above activities, which neither confused the jury nor violated appellant’s right to a fair trial. Appellant challenged the financial gain special circumstance because he killed the victim in order to obtain a “fix” to feed his heroin addiction, not for any monetary gain. The appellate court here found that the evidence did not show that this was the only motive. Further, even if it was the only motive, there is no constitutional impediment to applying the special circumstance under these circumstances.