Palo Alto Judge Recuses Himself from Hearing Routine Child Porn Case (CA Penal Code 311)

Rabin Nabizadeh
August 25, 2016

We all know the background of Judge Persky and the absurd effort by Stanford law professor Michele Dauber to recall Persky.  It is, indeed, difficult to find anyone who doesn’t have very strong emotions about this matter.  But emotions aside, any legal professional (professors not included) would attest that the sentencing decision was appropriate and in line with other similarly situated defendants.

But now, Judge Persky has opted to recuse himself from the case of Robert Plummer, a child porn case (CA Penal Code 311) a case Judge Persky has overseen since its inception, despite the fact that there appears to be no conflict whatsoever.  That this is a routine request by a defendant under CA Penal Code 17, to reduce a wobbler offense to a misdemeanor makes matters even more confusing.

As a background, many California crimes are wobblers in that defendants can be charged with a misdemeanor or a felony.  Possession of child pornography (CA PC 311) is one of those wobbler offenses.  The law allows the prosecutor an initial discretion to decide whether a particular offense is a felony or  a misdemeanor, however, this discretion is subject to judicial review.  A judge could, after hearing the facts of the case and evaluating the conduct as well as the defendant’s background deem the matter a misdemeanor at any stage.  Many defendants who are convicted of a felony use the mechanism under CA Penal Code 1203.3 and 1203.4 for a reduction to a misdemeanor and expungement of their record.  This remedy is limited and DOES NOT remove the lifetime registration requirement under CA Penal Code 290.

That said, Judge Persky’s decision to recuse himself from a routine request for a remedy we would all enjoy reveals the political pressure that the Brock Turner sentence has caused.

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