Hambarian

Once again we are asked to consider the circumstances under which a superior court may or must recuse a prosecutor’s office because of *829 the office’s use of consultants compensated by the victim. In People v. Eubanks (1996) 14 Cal.4th 580 [ 59 Cal.Rptr.2d 200 , 927 P.2d 310 ] (Eubanks), we found the superior court did not abuse its discretion in ordering recusal of the Santa Cruz County District Attorney’s Office which, when faced with a “ ‘substantial’ ” debt for consultants in comparison to its resources, had asked the victim to pay the debt as well as “other significant costs of the investigation.” (Id. at p. 598.) Focusing on “the possible sense of obligation the district attorney would feel for [the victim’s] payment of a debt owed by the district attorney’s office,” we held that “[t]he trial court did not err in concluding these circumstances evidenced a ‘reasonable possibility’ the prosecutor might not exercise his discretionary functions in an evenhanded manner” and would not have abused its discretion “in finding the conflict so grave as to render fair treatment of the defendants in all stages of the criminal proceedings unlikely.” (Id. at pp. 598-599,…

I respectfully dissent. The Court of Appeal in this case found that the prosecutor’s use of a victim-funded investigator, operating for nearly three years from within the offices of the Orange County District Attorney (District Attorney), creates a conflict of interest. The majority does not revisit this conclusion, but holds that even if there is a conflict, the trial court did not abuse its discretion in finding that the conflict does not prejudice defendant. Given the substantial expenditure by the City of Orange (City) in funding the sole financial investigator in this case, as well as the critical role played by the investigator in the criminal prosecution of Jeffrey Hambarian, I find that the conflict of interest in this case is so grave as to render it unlikely that defendant will be treated fairly during all portions of the criminal proceedings. Accordingly, I find that the trial court abused its discretion in failing to recuse the District Attorney.

I.

Our analysis is governed by Penal Code section 1424. Under subdivision (a)(1), a motion for recusal of a district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render…

Bill Lockyer, Attorney General, Robert R. Anderson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Carl H. Horst and Douglas P. Danzig, Deputy Attorneys General; Tony Rackauckas, District Attorney, David S. Kirkpatrick and Brian N. Gurwitz, Deputy District Attorneys, for Real Party in Interest.

Wiley, Rein & Fielding, David J. Kulik, Kirk J. Nahra and Brian F. Chandler for National Insurance Crime Bureau and Coalition Against Insurance Fraud as Amici Curiae on behalf of Real Party in Interest.

Dennis L. Stout, District Attorney (San Bernardino), Lance A. Cantos and Grover D. Merritt, Deputy District Attorneys, for California District Attorneys' Association as Amicus Curiae on behalf of Real Party in Interest.

BAXTER, J.

Once again we are asked to consider the circumstances under which a superior court may or must recuse a prosecutor's office because of the office's use of consultants compensated by the victim. In People v. Eubanks (1996) 14 Cal.4th 580 , 59 Cal.Rptr.2d 200 , 927 P.2d 310 ( Eubanks ), we found the superior court did not abuse its discretion in ordering recusal of the Santa Cruz County District Attorney's…