November 2012 Vol. 9, No. 3


Penal Code §1424: Prosecutorial Recusal


Spaccia v. Superior Court (2012) 209 Cal.App.4th 93


Was disqualification of the entire Los Angeles District Attorney’s office from prosecuting the alleged misconduct of an official with the City of Bell warranted where:  (1) the prosecution related in part to the official’s role in the hiring of the city’s Chief of Police for a substantial salary that was concealed from the City Council; (2) the official alleged that the person ultimately hired as Chief of Police had spoken to the District Attorney about the city’s offer to become Chief; and (3) the District Attorney had allegedly encouraged the person to accept the job?


No.  In City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839 (Cobra Solutions) (EQ 3.2.13), the California Supreme Court ruled that the rule of vicarious disqualification of a law firm in a civil matter where one firm attorney has a conflict of interest equally applies where the head of a government office formerly represented a person the office is currently pursuing in a civil matter.  The Court of Appeal here ruled that the vicarious disqualification rule announced in Cobra Solutions does not apply to criminal cases.  (209 Cal.App.4th at 105-106.)  The Court of Appeal pointed out that Penal Code section 1424 provides for the disqualification of a local prosecuting office only when “the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial,” a tighter standard for disqualification than the Cobra Solutions rule.  (209 Cal.App.4th at 103, quoting §1424.)  The appearance of conflict is insufficient under section 1424 to warrant disqualification of an entire local prosecuting office.

Applying section 1424, the Court of Appeal ruled that, even assuming that the successful applicant for Chief of Police’s contacts with the District Attorney prior to the applicant signing his contract with the city established that the District Attorney himself had an actual or apparent conflict, any contention that such conflict made it unlikely the official would receive a fair trial was based on speculation that the Chief’s testimony would exonerate the official, that the Chief would exercises his Fifth Amendment right not to testify at trial, and that the District Attorney would not offer the Chief immunity from prosecution.  The official offered no evidence to support any of those theories.  (Id. at 107-108.)


Ruling on a question of first impression, the Court of Appeal explained what a party must show to be entitled to an evidentiary hearing on a motion to disqualify under section 1424.  The Court held that a party seeking an evidentiary hearing on a motion to disqualify under section 1424 must make a prima facie showing by affidavit establishing facts through admissible evidence which, if credited, would justify disqualification of the office.  (Id. at 111-112.)  The Court further concluded that the official had not satisfied that burden by offering “mere speculation” of an unfair trial and that the trial court therefore had not abuse its discretion in denying the motion to disqualify without an evidentiary hearing.  (Id. at 112.)

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