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Name: People v. Loyd
Case #: A080542
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 09/28/2000
Subsequent History: Modification of opinion on denial of rehg., 84 Cal.App.4th670d; Review Granted January 24, 2001 (S092653)

In affirming convictions by jury of two counts of murder and one count of arson, the court found that the trial court did not err in denying the defense motion to recuse the prosecutor or dismiss the case for prosecutorial misconduct. It was not disputed that the prosecutor had ordered monitoring of five visits and 85 phone calls made by the defendant while housed in county jail pending trial, in violation of Penal Code sections 2600, the pre-1997 version of section 2601, and De Lancie v. Superior Court (1982) 31 Cal.3d 865. However, the court was unwilling to find that the misconduct warranted recusal or dismissal under the circumstances, where there was no request to monitor attorney-client conversations (unlike Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, where there had been intentional interference with the defense function). Also, the prosecution provided the 31 hours of taped conversations to the court and the defense, making it possible for the defense to show prejudice (also unlike Morrow, where the prosecution refused to make available the contents of the intercepted conversations). Although the prosecution has the burden to show that the misconduct did not prejudice the defense, where the information obtained is turned over to the defense, the defense must point to specific information capable of generating prejudice. The defense did not point to any specific part of these records as containing a potential for prejudice other than two statements by the defendant’s brother that were used to impeach his trial testimony, and a few statements of the defendant that may have given the prosecution clues to her trial strategy. The brother’s statement was not excludable under the federal constitution, so it could not have been excluded under Proposition 8. As to the defendant’s thought process, any prejudice was speculative. Justice Poche dissented. The impeachment evidence tended to show that the defendant and her brother had interfered with the investigation of one of the murders that had originally been thought to have been an accidental death, so the evidence both bolstered the quality of the original investigation, and discredited both defendant and her brother. The misconduct warranted at least a retrial on that murder count, and the Alameda County District Attorney’s Office should have been ordered to pay the costs of retrial.