Lead Opinion
Opinion
When the victim of an alleged crime contributes financially to the costs of the district attorney’s investigation, does the district
Factual and Procedural Background
Defendants Gordon Eubanks and Eugene Wang were accused, by grand jury indictment, of conspiracy to steal trade secrets (Pen. Code, §§ 182, 499c),
Both defendants moved to disqualify the Santa Cruz County District Attorney for a conflict of interest pursuant to section 1424. After an evidentiary hearing, the superior court granted the recusal motion. As permitted under section 1424, the Attorney General and the Santa Cruz County District Attorney, both of whom had appeared in the superior court to oppose recusal, appealed the ruling. The Court of Appeal reversed. We granted review on defendants’ petition.
In September 1992, defendant Eugene Wang was a vice-president of Borland International, a software developer located in Scotts Vallеy (Santa
During the night of September 1, and into the morning of September 2, 1992, Borland officials worked with representatives of the police department and district attorney’s office preparing warrant affidavits for searches of defendants’ residences and Symantec headquarters. Apparently because the police department and prosecutor’s office lacked staff with the expertise to search the Symantec computers, Alan Johnson, the distriсt attorney’s chief inspector, asked Borland officials if Borland could provide one or more technically competent employees to assist in the search. The Borland representatives declined because they did not want Borland employees exposed to Symantec secrets; they suggested independent consultants be used instead.
Two computer specialists were located to assist with the September 2 search; David Klausner, who was referred by Borland’s outside counsel, and Stephen Strawn, who had worked with the district attorney’s office on prior occasions. Chief Inspector Johnson and John Hansen, associate general counsel for Borland, both testified that on the night of September 1 and 2, at the request of the district attorney’s office, Borland agreed to pay for Klausner’s services.
According to Johnson, Spencer Leyton, a senior Borland executive, indicated Borland’s willingness to spend up to $10,000, and possibly more, for experts to assist in the investigation. Leyton, however, did not recall discussing the matter of expert assistance at all, although he was prеsent and talked with Johnson on the night and morning of September 1 and 2. Borland records show a $25,000 “blanket” purchase order was drawn up and approved by the legal department in November 1992 for “miscellaneous services and fees / Symantec lawsuit.” Borland records for the subsequent payments to Klausner, Strawn and others for their work on the criminal investigation bear numerical references to this purchase order.
Klausner and Strawn accompanied representatives of law enforcement agencies who executed the warrant on September 2. Klausner submitted his
Strawn continued to work on the criminal investigation for several weeks, into October 1992, assisting the district attorney’s office in retrieving and printing the contents of seized computer disc drives. In late September 1992, knowing Strawn was working on the case, Chief Inspector Johnson discussed with Arthur Danner, the Santa Cruz County District Attorney, whether Borland should be asked to pay Strawn’s anticipated bill. Danner made no decision at that time. Johnson testified he then asked Borland executive Leyton whether Borland was “still willing to assist us by carrying the cost of the technicians that were necessary to process this case.” Leyton, according to Johnson, answered affirmatively. Sometime after that discussion, Johnson again broached the question with Danner, who then approved submitting Strawn’s invoices to Borland.
District Attorney Danner similarly testified he first considered the payment question while Strawn was still working with the office’s investigators. Asked whether, at that time, he contemplated abandoning the prosecution if Borland did not pay for Strawn’s services, Danner testified: “No. ... It was simply at that point to have the investigation proceed because at that point we needed the additional materials and so that’s what Mr. Straun [szc] was working on to allow us to review those materials.”
Danner articulated two reasons for his ultimate decision to allow Borland to pay for Strawn’s assistance: First, he understood Strawn’s role to be purely technical, and hot to involve giving any opinion as to whether the materials retrieved were trade secrets. Danner considered Strawn’s limited role important because it meant Borland’s payment of his fee was less likely to become a significant issue at trial. Danner’s second reason for approving the payment was that “at that time we were experiencing serious budgetary constraints in a particular fund that we utilize to pay professional and special witnesses and we really had very little money in our budget. . . .”
Strawn submitted his bill for $9,450 to the district attorney’s office on October 31, 1992. After getting approval from Danner, Chief Inspector Johnson transmitted it to Borland. Borland attorney John Hansen testified he received the invoice and “sent it along for payment.” His understanding was that Strawn’s services had been necessary because “somebody had to go on the search along with the authorities,” and hiring Strawn thus “relieved us from having to send a Borland employee into a competitor’s plant.” After Borland’s general counsel, relying on Hansen’s recommendation, approved the payment, Borland paid Strawn’s bill by a check dated January 12, 1993.
Finally, Borland paid a private service to transcribe audiotapes of interviews with Borland employees, for use by the prosecutor. John Hansen testified a district attorney’s investigator told him, sometime in late 1992, that the investigation was “indefinitely” delayed because a clerical backlog in the district attorney’s office was preventing the office staff from transcribing the tapes. Hansen offered to have Borland pay someone to make the transcriptions. In January and February 1993, Borland made payments of $1,008 and $1,224 to a reporting service for transcription of the tapes.
Defendants initially moved to recuse the entire office of the district attorney on the ground that Deputy District Attorney Jonathan Rivers, who had worked on the Eubanks-Wang case, had left the district attorney’s office and been retained by Borland to work on Borland’s related civil action against Symantec. In the course of a hearing on this issue, defendants learned of the payments by Borland, which were then made a separate ground for requesting recusal.
After hearing the abovе evidence, the superior court concluded that while Rivers’s change of employment did not require recusal of the district attorney’s office, the payments did. The court’s rationale appears from its comments during argument on the motion (no written statement of reasons was filed). Discounting mere “appearances ... of impropriety,” the cotut framed the issue as whether the victim’s “payment of money for a debt already incurred" by the district attorney creates “an actual conflict” for the prosecutor. The standard to be applied, as the court understood it, was whether “the evidence provides a reasonable possibility that the D.A.’s office may not exercise its discretionary function in an even-handed manner.”
The court emphasized Borland’s payment of Strawn’s bill: “[W]e have a situation here where there was a debt. . . that’s already been incurred. That person was going to get paid regardless of who paid it. Borland happens to make the offer and in fact does pay it, and pays other bills as well. Doesn’t that put the District Attorney in a position, as a human being, to feel a greater obligation for this particular victim than some other fellow or person who doesn’t offer to pay existing debts?” Answering its own rhetorical question, the court found the payment of the district attorney’s incurred debt “rather strong evidence of a reasonable possibility that the discretionary
The Court of Appeal reversed the recusal order. First, the appellate court disagreed with the trial court’s conclusion Borland’s payments created a conflict of interest. The Court of Appeal viewed the payments as “comparable to the cooperation victims often give to prosecutors in criminal cases.” Any sense of obligation arising from the payments, the court believed, was necessarily “minimal,” and hence insufficient to show the existence of a conflict.
Alternatively, assuming the existence of a conflict, the Court of Appeal found its gravity insufficient to justify recusal. The trial court, the Court of Appeal noted, found only a “reasonable possibility” of unfair treatment, without determining whether, as required under section 1424, the conflict rendered it “unlikely” that defendant would receive fair treatment from the prosecutor. Moreover, to find fair treatment “unlikely” on these facts, the Court of Appeal held, would have exceeded the trial court’s discretion.
Discussion
The question raised by this case is whether a crime victim’s payment of substantial investigative expenses already incurred by the public prosecutor creates a disabling conflict of interest for the prosecutor, requiring his or her disqualification. Our examination of the question begins with exposition of the general principle that a public prosecutor must be free of special interests that might compete with the obligation to seek justice in an impartial manner (pt. I, post). In part II we focus on the statutory standard for recusal under California law, examining the origins and interpretation of section 1424. Finally, in part HI, we apply the statutory standard to the case at bar, consistent with the more general principles explored earlier.
I. The Independence and Impartiality of the District Attorney
In California, all criminal prosecutions are conducted in the name of the People of the State of California and by their authority. (Gov. Code, § 100, subd. (b).) California law does not authorize private prosecutions. Instead, “[t]he prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor . . . . [*]0 [who] ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. [Citation.] No private citizen, however personally aggrieved, may institute criminal proceedings independently [citation], and the prosecutor’s own discretion is not subject to judicial control
The district attorney of each county is the public prosecutor, vested with the power to conduct on behalf of the People all prosecutions for public offenses within the county. (Gov. Code, § 26500; Hicks v. Board of Supervisors (1977)
The importance, to the public as well as to individuals suspected or accused of crimes, that these discretionary functions be exercised “with the highest degree of integrity and impartiality, and with the appearance thereof’ (People v. Superior Court (Greer), supra,
The nature of the impartiality required of the public prosecutor follows from the prosecutor’s role as representative of the People as a body, rather than as individuals. “The prosecutor speaks not solely for the victim, or the police, or those who support them, but for all the People. That body of ‘The People’ includes the defendant and his family and those who care about him.
While the district attorney does have a duty of zealous advocacy, “both the accused and the public have a legitimate expectation that his zeal . . . will be bom of objective аnd impartial consideration of each individual case.” (People v. Superior Court (Greer), supra,
II. Standards for Prosecutorial Recusal Under Section 1424
Section 1424, pursuant to which the present motion was made, was enacted in 1980. Only three years earlier, in People v. Superior Court {Greer), supra,
In Greer, we expressed concern not only with actual conflicts of interest that might affect the evenhandedness with which a prosecutor exercised his
Section 1424 established both procedural and substantive requirements for a motion to disqualify the district attorney. Substantively, the statute provides thе following standard: “The motion shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.”
“Section 1424 was the Legislature’s response to Greer and other criminal cases stressing the importance of the appearance of impropriety and other ‘apparent’ conflicts as bases for prosecutorial disqualification.” (People v. Lopez (1984)
We considered and resolved these interpretive questions regarding section 1424 in People v. Conner, supra,
Conner establishes that, whether the prosecutor’s conflict is characterized as actual or only apparent, the potential for prejudice to the defendant—the likelihood that the defendant will not reсeive a fair trial—must be real, not merely apparent, and must rise to the level of a likelihood of unfairness. Thus section 1424, unlike the Greer standard, does not allow disqualification merely because the district attorney’s further participation in the prosecution would be unseemly, would appear improper, or would tend to reduce public confidence in the impartiality and integrity of the criminal justice system. (Accord, People v. McPartland (1988)
Because the enactment of section 1424 eliminated the appearance of impropriety as an independent ground for prosecutorial disqualification, our review of the recusal order here must focus on whether Borland’s payments created a conflict with the actual likelihood of prejudice to Eubanks and Wang, rather than on whether allowing such payments would, as defendants
Conner clarified two other points of statutory interpretation important to the present case. First, by its terms, section 1424 allows recusal if the conflict of interest is so grave as to make a “fair trial” unlikely. The prosecutor’s discretionary functions, however, are not limited to the trial proper, and we recognized in Conner that the need for prosecutorial impartiality extends to all portions of the proceedings, not only to the trial. Paraphrasing the statutory standard, we asked: “Was this conflict so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings?” (Conner, supra,
Defendants here have focused on the likelihood of pretrial prejudice, in particular “the very real likelihood that the prosecution would pursue a weak case because it was indebted to Borland.” They urge us to uphold the trial court’s finding of conflict, which was based upon a perceived reasonable possibility the district attorney, out of a sense of obligation to Borland, would be unwilling to drop the charges or bargain for a lesser plea. Conner
Second, section 1424 requires the existence of a “conflict . . . such as would render” a fair trial “unlikely.” In Conner, we read this language as establishing a two-part test: (i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting? Thus, while a “conflict” exists whenever there is a “reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner,” the conflict is disabling only if it is “so grave as to render it unlikely that defendant will receive fair treatment.” (Conner, supra,
III. Application to This Case
A. Existence of a Conflict of Interest
In Conner, supra,
Although there were some conflicts in the recusal hearing testimony (e.g., Johnson and Leyton differed as to whether Leyton participated in discussion of who would pay Klausner’s fee), the significant facts were largely undisputed. The trial court made no explicit findings on questions of evidentiary
The discretion of a trial court is, of course, “ ‘subject to the limitations of legal principles governing the subject of its action.’ ” (Westside Community for Independent Living, Inc. v. Obledo (1983)
The Attorney General fails to persuade us any legal principle restricts the concept of a conflicting interest to a district attorney’s personal financial or emotional stake in the prosecution. The cited cases in which recusal has been based on a prosecutor’s personal involvement are not authority for a limiting rule.
Section 1424, on its face, allows recusal on a showing of any conflict of interest that renders fair treatment unlikely, and our decisions interpreting the statute have not further restricted the concept of a conflicting interest. No reason is apparent why a public prosecutor’s impаrtiality could not be impaired by institutional interests, as by personal ones. We have recognized the existence of such an impermissible conflict in a scheme that made the official budget of a public defender dependent on litigation decisions that
More to the present point, a prosecutor may have a conflict if institutional arrangements link the prosecutor too closely to a private party, for example a victim, who in turn has a personal interest in the defendant’s prosecution and conviction. As Judge Friendly put it in Wright v. United States, supra,
In this connection, CDAA draws our attention to statutes establishing industry-financed funding schemes for certain types of fraud prosecutions. Insurance Code section 1872.8, subdivision (a), assesses automobile insurers up to $1 per insured vehicle per year, and allocates 51 percent of the resulting funds for distribution to district attorneys for investigation and prosecution of automobile insurance fraud cases. Insurance Code section 1872.83 establishes a similar funding scheme for workers’ compensation fraud investigation and prosecution. CDAA asserts these statutes serve to demonstrate “it is . . . appropriate as a matter of policy to request victims to pay some prosecution related costs.” Without expressing any opinion as to whether these financing schemes may cause a conflict for district attorneys, or as to their desirability from a policy standpoint, we agree with defendants that these statutory schemes are distinguishable in a number of ways from the type of contributions at issue here: The insurers involved in the statutory funding schemes are required by law to contribute to prosecution efforts, unlike Borland, which contributed to the prosecution at the special request of the district attorney’s office; and the assessments are made industry-wide, rather than on one particular victim corporation, and are spent on investigation and prosecution of automobile and workers’ compensation insurance fraud generally, rather than for the particular benefit of any one victim. These factors tend to reduce the likelihood any victim would gain, through financial contributions, influence over the conduct of any particular prosecution.
The Attorney General also maintains Borland’s assistance to the district attorney bore no potential for improper influence because it was, in the Court of Appeal’s words, “comparable to the cooperation victims often give to prosecutors in criminal cases.” We disagree. True, ordinary cooperation
In summary, we conclude financial assistance of the sort received here may create a legally cognizable conflict of interest for the prosecutor. The undisputed facts, moreover, support the trial court’s conclusion such a conflict did exist in this case. The district attorney incurred a debt of $9,450 to an independent contractor, Strawn, for technical assistance in a criminal investigation. The debt was, as the deputy district attorney who argued the motion conceded, “substantial considering our resources.” Certainly the amount is not de minimis. (Cf. State v. Retzlaff (1992)
We must agree, however, with the Court of Appeal that the trial court failed to apply the second part of the Connor test for disqualification; whether the conflict is so grave as to make fair treatment of the defendant unlikely if the district attorney is not recused. In the absence of contrary evidence, we assume a trial court applied the correct legal standard. (Ross v. Superior Court (1977)
B. Gravity of the Conflict
As previously explained, the trial court detected a potential for unfair treatment in the possible sense of obligation the district attorney would feel for Borland’s payment of a debt owed by the district attorney’s office. The court elaborated on the potential prejudice as follows: “[Ljet’s assume that the District Attorney’s office, in the review of their case . . . ultimately conclude that, ‘Well, you know, maybe our case isn’t as strong as we thought at the inception.’ Would they be—would it be easier for them to tell a victim who paid no money to the D.A.’s office, ‘You don’t have a case,’ than it would be one that you receivеd $15,000 [sz'c] from?”
The trial court correctly focused on the potential bias arising out of a sense of obligation to Borland, rather than on any potential “prejudice” to be found in the fact of investigatory assistance itself. That the prosecutor may have been able to proceed further or more quickly against defendants with Borland’s assistance than without would not, by itself, constitute unfair treatment. As CDAA points out, defendants have “no right to expect that crimes should go unpunished for lack of public funds.” (See Wright v. United States, supra,
The size of the contributions here also tends to show recusal would be within the trial court’s discretion. District Attorney Danner testified his office fund for this type of investigation was very limited, and Chief Inspector Johnson apparently regarded the investigatory costs here as large enough to warrant the unusual measure of asking the victim to pay . them.
Finally, the trial court’s assessment of the strength of the prosecution case supports the decision to recuse. Before hearing the recusal motion, the court held an extensive hearing on the proper means of protecting Borland’s asserted trade secrets from disclosure during the criminal proceedings. (See Evid. Code, §§ 1060-1063.) In the course of that hearing, the court repeatedly stated its firm impression that the subject secrets, which Wang and Eubanks were alleged to have conspired to steal, Wang to have stolen and Eubanks to have received, do not in fact meet the definition of trade secrets for criminal purposes (Pen. Code, § 499c, subd. (a)(9)), although they might be trade secrets for purposes of civil remedies (Civ. Code, § 3426.1, subd. (d)).
Considering the above factors, we cannot say, as a matter of law, that had the trial court addressed the second part of the Conner test—the gravity of
Disposition
The cause is transferred to the Court of Appeal with directions to vacate its previous judgment and dismiss the appeal as moot.
George, C. J., Mosk, J., Kennard, J., Baxter, J., Chin, J., and Brown, J., concurred.
Notes
Unless otherwise specified, all further statutory references are to the Penal Code.
After oral argument was held in this matter, the charges against Eubanks and Wang were dismissed on request of the Santa Cruz County District Attorney. Although the matter is thus rendered moot, we exercise our discretion to resolve the legal issues raised, which are of continuing public interest and are likely to recur. (Baluyut v. Superior Court (1996)
An earlier version of the bill adding section 1424 would have required the movant to show “an actual conflict of interest.” (Sen. Amend, to Sen. Bill No. 1520 (1979-1980 Reg. Sess.) Apr. 10, 1980.) Before enactment, the language was changed to “a conflict of interest.”
At the request of amicus curiae California District Attorneys Association, we take judicial notice of documents from the legislative history of Senate Bill No. 1520, which added section 1424. These documents indicate the bill was drafted and sponsored by the Attorney Genеral in response to Greer; the Attorney General’s office sought the measure as a means of reducing the number of disqualifications and thereby alleviating an increase in that office’s disqualification workload. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1520 (1979-1980 Reg. Sess.) as amended Apr. 10, 1980, pp. 1-3.) The Attorney General, in a letter sent to all members of the Senate before that body’s passage of the bill, attributes the increase in disqualifications, in part, to Greer’s “ ‘appearance of conflict’ ” test. (Atty. Gen. letter to members of Sen., May 12, 1980.)
People v. Hamilton, supra,
One should note, in this connection, the distinction between a motion to recuse the district attorney, under section 1424, and a motion to set aside the information or indictment, under section 995. In Greer we suggested that “if the trial court determines that a district attorney’s participation in the filing of a criminal complaint or the preliminary hearing on that сomplaint created a potential for bias or the appearance of a conflict of interest, it may conclude that the defendant was not ‘legally committed’ within the meaning of Penal Code section 995, and the information should be set aside.” (Greer, supra,
We do not suggest this is the current situation in Santa Cruz or any other county of California. Indeed, it has been argued that large corporations often have difficulty interesting local prosecutors, whose resources are already strained by the fight against violent crime, in the investigation and prosecution of business fraud and other complicated crimes against corporate victims. (See International Business Machines Corp. v. Brown (C.D.Cal. 1994)
The legislative mandate that recusal not be ordered on a mere “possibility” of unfair treatment makes particularly compelling sense where, as here, what is at issue is the disqualification of the district attorney’s entire office, rather than оnly one or a few deputies. “[W]hen the entire prosecutorial office of the district attorney is recused and the Attorney General is required to undertake the prosecution or employ a special prosecutor, the district attorney is prevented from carrying out the statutory duties of his elective office and, perhaps even more significantly, the residents of the county are deprived of the services of their [locally] elected representative in the prosecution of crime in the county.” (People ex rel. Younger v. Superior Court, supra,
The majority opinion in People v. Superior Court (Martin) (1979)
In Ganger, the federal court vacated a Virginia assault conviction on due process grounds because the prosecuting attorney, while prosecuting Ganger criminally, also reрresented Ganger’s wife in a divorce action, which was based on the same alleged assault. A number of cases have followed Ganger in holding due process forbids prosecutors from holding such conflicting interests. (See, e.g., State of N.J. v. Imperiale (D.N.J. 1991)
The Attorney General observes, correctly, that the trial court’s comments “are not evidence of weakness in the case.” We do not suggest they are, and express no view as to the actual strength or weakness of the prosecution’s case. The trial court’s comments are significant only in that they tend to show that court’s own preliminary assessment of the case, an assessment the court may properly take into aсcount in making its discretionary decision on recusal.
Concurrence Opinion
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)
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,
I
As the majority acknowledges, the relevant facts are as follows: (i) The district attorney solicited the alleged crime victim to pay approximately
First, the circumstance that the district attorney solicited Borland International to pay the debt incurred by the district attorney rendered it problematic, if not unlikely, that the district attorney would bе able to exercise objectively his prosecutorial discretion. As the trial court observed, it would be quite difficult for the district attorney to tell Borland that he has decided not to prosecute Borland’s case, after Borland, at the district attorney’s request, agreed to pay substantial bills that were submitted to, and that were the responsibility of, the district attorney’s office. Accordingly, this was not, as the Attorney General asserts, merely an example of normal “cooperation by a victim corporation.” Instead, the solicited contributions here at issue are of a different order and pose a far greater risk of improperly influencing the district attorney’s exercise of charging and prosecuting discretion.
Second, as the majority acknowledges, the size of the solicited contributions increased the likelihood that defendants would not receive fair treatment. The district attorney testified that the office fund for this type of investigation was very limited, and the chief inspector “apparently regarded the investigatory costs here as large enough to warrant the unusual measure of asking the victim to pay them.” (Maj. opn., ante, at p. 600.) As was conсeded by the deputy district attorney who argued the recusal motion, “[t]he sum of money that Borland paid in the [district attorney] universe is substantial considering our resources.”
Certainly, the district attorney would have appreciated that Borland stood to benefit from the criminal prosecution of defendants. Not only would such a prosecution assist Borland’s parallel civil action, help protect any asserted trade secrets, and serve to deter others from committing similar acts in the future, but prosecution also would constitute a major disruption and distraction for Symantec Corporation, one of Borland’s primary competitors. Under these circumstances, the solicited funds likely would be considered by Borland to be a prudent investment whether or not the prosecution ultimately was pursued to trial and conviction because, by keeping the prosecution
Under these circumstances, the district attorney—knowing the strategic importance of the matter to Borland, and having asked Borland to pay the district attorney’s obligations—likely would feel a great sense of obligation to pursue the prosecution and would be reluctant to exercise objectively his prosecutorial discretion. This further increased the risk that defendants would not receive the fair, impartial treatment that other defendants would obtain in a similar situation.
The Court of Appeal concluded otherwise, reasoning that an amount of money significant to a tightly budgeted public office is not necessarily large in the eyes of a successful for-profit corporation, and that, as the deputy district attorney arguing the motion put it, “the sum of money that Borland paid in the Borland universe is not great.” Even if true, the district attorney’s observation is of debatable relevance. The question is whether the size of the solicited contributions was sufficient to create a likelihood of unfairness to defendants arising from the alleged victim’s undue influence on the district attorney’s discretionary authority. It matters little that the $13,000 solicited funds might be “small potatoes” in Borland’s eyes; the issue is the likely influence of such a payment upon the financially strapped public prosecutor in his treatment of the criminal investigation and continued prosecution of defendants.
Finally, as alluded to by the majority, the trial court made clear its “firm impression that the subject secrets ... do not in fact meet the definition of trade secrets for criminal purposes [citation], although they might be trade secrets for purposes of civil remedies [citation].” (Maj. opn., ante, at p. 600.) On the final two days of an eight-day pretrial hearing on Borland’s request for a trade-secret protective order (Evid. Code, § 1061), the trial court asserted: “I don’t have criminal trade secrets here in my opinion at all, and—from what I’ve seen, . . . I’m not sure why this case is here.” Later, the court stated, “I don’t see criminal trade secrets here.” Finally, the court repeated, “it’s this Court’s view that there’s not a criminal tradе secret involved. And there isn’t, gentlemen. I still say it to you. I don’t know what we’re doing here . . . .”
As the majority observes (maj. opn., ante, at p. 600, fn. 9), the trial court’s statements reflect clearly the trial court’s considered assessment that the
II
I agree with the majority that the trial court would not have erred had it properly applied Penal Code section 1424 and granted defendants’ recusal motion. Indeed, the trial court would have erred had it ruled otherwise. In light of (i) the circumstance that the contributions were solicited to satisfy obligations of the district attorney, (ii) the size of the contributions in relation to the budget of the district attorney’s office, and (iii) the trial court’s clearly expressed and considered assessment that the prosecution’s case was weak, I conclude that the trial court would have abused its discretion had it denied the motion to recuse.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied February 26,1997, and the opinion was modified to read as printed above.