P. v. Wallace CA1/1

Filed 5/7/13 P. v. Wallace CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. A134614 AARON WALLACE, (Marin County Defendant and Appellant. Super. Ct. No. SC171212A)

Following denial of defendant‘s motion to recuse the Marin County District Attorney‘s Office and the deputy assigned to his case, he was convicted by a jury of residential burglary (§ 459) and assault with a deadly weapon (§ 245, subd. (a)(1)).1 He claims on appeal that the trial court erroneously denied his recusal motion (§ 1424). We conclude that the denial of the recusal motion was not a prejudicial abuse of discretion, and affirm the judgment. STATEMENT OF FACTS2 Defendant was convicted of offenses that occurred at a two-level apartment residence occupied by his sister, Saprina Wallace, mother Rosemary Wallace, sister Terressa Harris, and nephew Labron Wallace, and visited frequently by others in the

1 All further statutory references are to the Penal Code. 2 In this appeal defendant only challenges the denial of his motion to recuse the prosecutor. Therefore, our recitation of the facts will focus on the facts pertinent to the issue presented, rather than the underlying crimes.

family.3 Testimony was presented, primarily by defendant‘s niece Tequoia McDonald, that on the morning of July 20, 2010, defendant appeared at the apartment on two occasions and engaged in altercations with Harris, apparently over some of defendant‘s belongings in the residence. Early the same afternoon, defendant returned to the apartment and kicked open the front door. From the upper level of the residence McDonald heard the ―bang‖ and ran to the stairs. She observed defendant in the living room below ―holding a tennis racket and a knife‖ in his hands, ―as if he was gonna hit someone with‖ them. Defendant appeared to McDonald to be in a state of mind ―that he was going to come in and kill‖ her or Saprina. Defendant approached Saprina, who was seated on the couch. Saprina ran upstairs, as did McDonald. They declared that they were ―calling the police.‖ Both Saprina and McDonald were ―shocked and scared.‖ After pausing at the front door, defendant ran out of the apartment. While defendant was in custody in the lockdown unit of the Marin County Jail based on the offenses charged in the present case, he threw urine at a deputy sheriff and inmate, an act known as ―gassing,‖ which was charged in a separate case (case No. SC 172093A) as a violation of section 243.9, subdivision (a). He also received numerous other disciplinary reports while in county jail. Defendant was involuntarily treated with antipsychotic medication and found mentally incompetent to stand trial. He was transferred to Atascadero State Hospital on September 23, 2010. The trial court thereafter found that he was restored to competency, and following a preliminary hearing he was charged in case No. SC171212A with four felony counts: residential burglary (§ 459), assault with a deadly weapon (§ 245, subd. (a)(1)), making a criminal threat (§ 422), and vandalism (§ 594, subd. (b)(1)), along with prior convictions and a prior prison term served. The case then proceeded before several jury panels. On April 21, 2011, the first panel was dismissed during voir dire examination and a mistrial was declared after some of the prospective jurors inadvertently observed defendant escorted to a restroom in a