People v. Eubanks

GEORGE, C. J., Concurring.

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.) The majority concludes, correctly, that on these facts the trial court would not have abused its discretion had it concluded that fair treatment of defendants was unlikely. I would stress that under the circumstances here presented, the trial court properly could not have exercised its discretion otherwise.

I

As the majority acknowledges, the relevant facts are as follows: (i) The district attorney solicited the alleged crime victim to pay approximately *602 $13,000 incurred by the district attorney’s office in connection with that office’s investigation of the case; (ii) a deputy district attorney testified that the debt owed by the office was “substantial” in view of the office’s limited resources; and (iii) the trial court assessed the evidentiary support for the criminal trade secret charges against defendants as extremely weak. Certainly, as the majority concludes, all three circumstances “support” recusal under Penal Code section 1424. As explained below, and contrary to the arguments advanced by the Attorney General on behalf of the district attorney, and relied upon by the Court of Appeal herein, these circumstances also mandate recusal under the statute.

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 be 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 conceded 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 *603 “alive a little longer,” Borland would benefit competitively vis-á-vis Symantec. Thus, the district attorney could “reimburse” Borland for paying the incurred debt simply by exercising discretion to continue or extend the criminal investigation for longer than it otherwise would. As the opinion observes (maj. opn., ante, at p. 584, fin. 2), the district attorney maintained the charges against defendants until shortly after oral argument in this court, despite the apparent weakness of the case.

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 trade 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 *604 prosecution’s case was factually weak. (See also maj. opn., ante, at p. 600.) Contrary to the Attorney General’s suggestions, it is appropriate for an appellate comí: to take into account the trial court’s assessment that the prosecution’s case is weak, in determining whether the trial court would have abused its discretion had it denied the recusal motion.

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.