Eubanks

When the victim of an alleged crime contributes financially to the costs of the district attorney’s investigation, does the district *584 attorney thereafter suffer from a disabling conflict of interest requiring recusal under Penal Code section 1424? On this question of first impression, we hold such financial assistance to the prosecutor’s office may indeed disqualify the district attorney from acting further in a case, if the assistance is of such character and magnitude “as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.” (People v. Conner (1983) 34 Cal.3d 141, 148 [ 193 Cal.Rptr. 148 , 666 P.2d 5 ].) In this case, where a corporation alleged to be the victim of trade secrets theft contributed around $13,000 to the cost of the district attorney’s investigation, the superior court did not abuse its discretion in finding the victim’s financial assistance created a conflict of interest for the prosecutor. The trial court did err in failing to apply the further test set out in Penal Code section 1424: whether the resulting conflict was so severe as to make fair treatment of the defendants unlikely. We…

I have signed the majority opinion, and write separately simply to explain that, on these facts, I believe—apart from any general concerns I may have about privately funded public prosecutions —recusal of the district attorney’s office was required as a matter of law.

As the majority holds, the trial court correctly found that the prosecutor suffered a “conflict of interest” under Penal Code section 1424—i.e., there was “a reasonable possibility that the [district attorney’s] office may not exercise its discretionary function in an evenhanded manner” (People v. Conner (1983) 34 Cal.3d 141, 148 [ 193 Cal.Rptr. 148 , 666 P.2d 5 ] [construing Pen. Code, § 1424].) The majority then addresses the remaining question—whether recusal of the district attorney’s office was required because the conflict made it “unlikely that the defendant would receive a fair trial.” (Pen. Code, § 1424.)

As this court said in Conner , determination of that question calls for an inquiry as to whether the conflict is “so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.” (People v. Conner, supra, 34 Cal.3d at p. 148 , italics added.)…