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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Appellant, v. Gordon EUBANKS et al., Defendants and Respondents.

No. H011751.

Decided: September 08, 1995

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Michael D. O'Reilley and Eugene W. Kaster, Deputy Attys. Gen., for appellant. Gil Garcetti, Dist. Atty., Los Angeles County, George M. Palmer and Shirley S.N. Sun, Deputy Dist. Attys., for amicus curiae in support of appellant. Morgan, Ruby, Schofield, Franich & Fredkin and Allen Ruby, San Jose;  Remcho, Johansen & Purcell and Robin B. Johansen and Charles C. Marson, San Francisco;  Nolan & Armstrong and Thomas J. Nolan, Palo Alto, for respondents. Peter A. Chang, Jr., Santa Cruz and Vicki I. Podberesky, Santa Monica, for amici curiae in support of respondents.

Gordon Eubanks and Eugene Wang were charged by indictment with felonies involving the alleged theft of trade secrets from Borland International, a commercial developer of computer programs.   During pretrial proceedings the defendants learned that Borland (1) had retained an attorney who had previously worked for the district attorney of Santa Cruz County in the investigation of the alleged crimes, and (2) had paid certain of the expenses of the criminal investigation.   The trial court granted the defendants' motion to disqualify, or “recuse,” the entire office of the district attorney.   The district attorney and the Attorney General appeal.  (Pen.Code, § 1424.)   We conclude that the recusal order exceeded the trial court's discretion and reverse the order.


Wang had been a Borland vice president.   In July 1992 he had expressed dissatisfaction with a management reorganization and threatened to resign.   On September 1, 1992, Wang submitted his resignation, effective on that day.   Borland learned that Wang intended to go to work immediately for Symantec Corporation, a direct competitor of Borland's.   Prompted by information that Wang had been using Borland's electronic mail to communicate with Eubanks, the president and chief executive officer of Symantec, Borland reviewed its E-mail files and found several messages between Wang and Eubanks which contained what Borland believed were Borland trade secrets.

Borland contacted local police to investigate the possibility of theft of trade secrets.  (Pen.Code, § 499c.)   Police enlisted the assistance of an investigator and an attorney from the office of the district attorney.   Concerned that evidence would be destroyed if Wang or Eubanks became aware that an investigation had begun, police and district attorney representatives worked with Borland officials through the night of September 1 to prepare affidavits for warrants to search Symantec's headquarters and the residences of Wang and Eubanks.

In the early morning hours of September 2, the district attorney's representatives asked Borland officials whether Borland could provide computer specialists “to assist us in searching ․ the computers that we expected to encounter” at Symantec and elsewhere.   Borland was unwilling to send its own specialists because it did not want to place itself in the position of obtaining access to Symantec's trade secrets.   The district attorney had no employee with the necessary computer expertise.   His representatives asked whether Borland could help identify one or more independent experts to assist in the search, and Borland, through its outside attorneys, promptly located a computer specialist named Klausner who was available to assist.   The district attorney's investigator was concerned about the cost of independent experts, and asked Borland officials whether Borland “would be in a position to assist us by providing the expert at their cost.”   The officials led the investigator to understand that Borland could pay up to $10,000, “and, if need be, more,” for this purpose.

Once the search warrants were issued, Klausner accompanied the representatives of several law enforcement agencies who executed the warrant for Symantec's headquarters on September 2.   The record does not make clear exactly what Klausner did;  it indicates only that he was “utilized ․ for a short period of time in reviewing the computer or computer terminal ․ located on ․ Eubanks' desk.”   Klausner's services were completed on September 2, and on September 3 Klausner's firm submitted a bill for $1,400 directly to Borland.   Borland paid Klausner's bill on September 14.

The district attorney's investigator located a second computer specialist, Strawn, who had worked with the district attorney's office on other occasions.   Strawn participated in the search at Symantec and thereafter continued to work on the investigation for several weeks.   His role apparently was to operate the several computers that law enforcement officers had found.   Where necessary he was to recover electronic files that had been deleted from the computers' file directories, in order to call the files to the computer screens so that the officers could determine the relevance of the files.

In the latter part of September the district attorney's investigator asked a Borland official whether “Borland was still willing to assist us by carrying the cost of the technicians that were necessary to process this case.”   The official said that Borland was willing.

At some point the proposal that Strawn be paid by Borland was brought to the attention of the district attorney, Arthur Danner.   After considering the proposal, Danner determined that Strawn's work would be technical and that he would not be asked for an opinion as to whether any of the material he had recovered was a trade secret.   In addition, according to Danner, “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․”  After ascertaining that Strawn had not retrieved any material that was “that significant in terms of a potential trial,” Danner approved submission of the invoice to Borland.   Subsequently, Strawn submitted an invoice to the district attorney's office for $9,450 for “examination of computers and related materials․”  The district attorney's office forwarded the invoice to Borland, which paid it.

In the course of the investigation Borland employees were interviewed and the interviews audiotaped.   At some point late in 1992 Borland agreed to pay to have the audiotapes transcribed.   Borland ultimately made payments of $1,008 and $1,224 to a reporting service which transcribed the audiotapes.

Danner did not learn of Borland's payments to Klausner and to the reporting service until after the fact.   Mike Bartram, the assistant district attorney assigned to prosecute the Eubanks–Wang case, had been made aware of the proposal to ask Borland to make payments and apparently had opposed it, primarily because he thought “that might affect a jury.”   It appears that Bartram was not informed of the actual payments until considerably after the fact.

Strawn submitted a second invoice, for work done after October 1992 on the Eubanks–Wang investigation, but apparently that invoice was never paid.   Altogether Borland paid a total of $13,082 directly to providers of services in the investigation.

The grand jury indicted Eubanks and Wang at the end of February 1993, and the defendants were arraigned on the indictment on March 5.

A recent law school graduate named Rivers was working for the district attorney's office as a law clerk in September 1992.   Two to three weeks after the search warrants were executed, Rivers was assigned to assist Bartram with the Eubanks–Wang case.   Initially he did legal research on the case;  later he participated in the investigation.   Rivers was admitted to the California bar in December 1992.   Thereafter he worked for the district attorney's office as a contract attorney until March 1993.

Borland had filed a civil action against Symantec, arising out of the Eubanks–Wang episode, on September 3, 1992, the day after the initial search warrants were executed.   In March 1993, after the indictments were returned and at about the time of the arraignment, Borland discussed with Rivers the possibility that he might work for them on the pending civil action.   Rivers mentioned this possibility to Bartram, who told Rivers that if he went to work for Borland, Rivers and Bartram would be unable to discuss the case.   Bartram also counseled Rivers to explore possible conflict-of-interest issues with the State Bar.   Borland was similarly concerned that the ethical aspects of the proposal to retain Rivers be worked out.   Rivers did consult the State Bar and he also researched the ethical issues.   On March 17, 1993, Rivers resigned from the district attorney's office and was retained as a private attorney by Borland to work on the civil action against Symantec “and relat[ed] issues and potentially another case ․ and some business things.”   Rivers did not work for the district attorney's office thereafter.

In May 1993 counsel for defendants Eubanks and Wang moved to recuse the entire office of the district attorney on the ground that Rivers had accepted “private employment by an accuser in a pending prosecution.”   The motion came to hearing in July 1993.   In the course of the hearing the defendants became aware of Borland's payments to Klausner, Strawn, and the reporting firm.   Thereafter the defendants urged that Borland's payments be considered a separate ground for recusal, and the issue was then fully litigated between the parties.1

The trial court summarily rejected the contention that the Rivers episode had exposed the district attorney to disqualification:  “Mr. Rivers is gone and any potential conflict arising out of his employment goes with him so to speak.”   The court was troubled, however, by Borland's payments in furtherance of the investigation.   These payments, it believed, were “strong evidence of a reasonable possibility that the discretionary function that's fundamental to a District Attorney is compromised and thereby would not necessarily be used in an even-handed manner,” particularly with respect to the decision whether to prosecute.   Accordingly, the court granted the recusal motion.


1. Penal Code Section 1424

A motion to disqualify a district attorney from performing “any authorized duty” is governed by Penal Code section 1424,2 which provides that “[t]he 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.”   The power of trial courts to disqualify district attorneys was previously established in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164, which held that the power could be exercised when the district attorney “suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary functions of his office.”  (Id. at p. 269, 137 Cal.Rptr. 476, 561 P.2d 1164.)  Section 1424 was enacted in 1980, in apparent response to suggestions that Greer's several references to appearance of impropriety, of conflict of interest, or of partiality had led to a substantial increase in unnecessary recusals.  (Cf. People v. Lopez (1984) 155 Cal.App.3d 813, 824, 202 Cal.Rptr. 333;  People v. Merritt (1993) 19 Cal.App.4th 1573, 1578, 24 Cal.Rptr.2d 177.)

On its face section 1424 requires both that a conflict of interest be shown to exist and that the conflict be “such” as to render a fair trial “unlikely.”   This reading of the statute was essentially confirmed by the Supreme Court in People v. Conner (1983) 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5, the leading case on section 1424.  Conner affirmed a trial court's order recusing an entire district attorney's office following an episode in which the defendant, attempting to escape, assaulted a deputy sheriff and then confronted and fired a pistol toward a deputy district attorney.   The Supreme Court took explicit notice of section 1424's distinction between the existence of a conflict of interest and the “additional statutory requirement” that the conflict render a fair trial unlikely.  (34 Cal.3d at p. 147, 193 Cal.Rptr. 148, 666 P.2d 5;  see also People v. Breaux (1991) 1 Cal.4th 281, 294, 3 Cal.Rptr.2d 81, 821 P.2d 585.)

The court defined “conflict of interest” as follows:  “[A] ‘conflict,’ within the meaning of section 1424, exists whenever the circumstances of a case evidence a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner.”   (Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   After determining that the evidence supported the trial court's finding of a conflict of interest, Conner restated the question as a second step of the recusal analysis:  “Was this conflict so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings?”   (Ibid.)  Our review of the trial court's recusal order in this case will address both steps of the Conner analysis.

2. Abuse of Discretion Standard

 Determining whether there is a conflict and, if so, whether the conflict is so grave as to require recusal will necessarily depend on the facts.   Once the facts are found, or if (as here) there is no substantial dispute as to the facts, the questions themselves are addressed to the discretion of the trial court.  (People v. Hamilton (1988) 46 Cal.3d 123, 140, 249 Cal.Rptr. 320, 756 P.2d 1348;  People v. Battin (1978) 77 Cal.App.3d 635, 671, 143 Cal.Rptr. 731.)   Our review of the trial court's answers to these questions is thus limited to a determination whether the trial court has abused its discretion.  (Cf., e.g., People v. Turner (1994) 8 Cal.4th 137, 162, 32 Cal.Rptr.2d 762, 878 P.2d 521;  People v. Zapien (1993) 4 Cal.4th 929, 968, 17 Cal.Rptr.2d 122, 846 P.2d 704;  People v. Hamilton, supra, 46 Cal.3d at p. 140, 249 Cal.Rptr. 320, 756 P.2d 1348.)

The abuse of discretion standard of review necessarily implies considerable deference to the trial court.   Courts have gone so far as to say that “we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge reasonably could have reached the challenged result” (Estate of Billings (1991) 228 Cal.App.3d 426, 430, 278 Cal.Rptr. 439;  cf. Estate of Hammer (1993) 19 Cal.App.4th 1621, 1634, 24 Cal.Rptr.2d 190), but any implication that a trial court's discretionary act must be affirmed unless it was utterly irrational would be too broad.   In City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 255 Cal.Rptr. 704, another Court of Appeal aptly summarized the pertinent principles:  “Although irrationality is beyond the legal pale it does not mark the legal boundaries which fence in discretion.  [Citation.]  [¶]․  ‘ “The discretion of a trial judge is not a whimsical, uncontrolled power, but ․ is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.  [Citation.]” ’  (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355, 188 Cal.Rptr. 873, 657 P.2d 365․)  The scope of discretion always resides in the particular law being applied, i.e., in the ‘legal principles governing the subject of [the] action․’  [¶] The legal principles that govern the subject of discretionary action vary greatly with context.   [Citation.]  They are derived from the common law or statutes under which discretion is conferred.”  (207 Cal.App.3d at pp. 1297–1298, 255 Cal.Rptr. 704.)

The issues on appeal have been thoroughly and thoughtfully briefed by the parties, by amicus curiae California District Attorneys Association in support of the People, and by amici curiae National Association of Criminal Defense Lawyers and California Attorneys for Criminal Justice in support of the defendants.   After carefully considering all the views expressed, we conclude that the recusal order in this case was not within the range of discretion conferred upon the trial court by section 1424 as judicially construed.   We are not convinced that the circumstances of this case might rationally be found to “evidence a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner.”  (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   Although the trial court did not reach the essential second step of the Conner analysis, it is apparent in any event that the record does not support a conclusion that any conflict would be “so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.”  (Ibid.)  The order must be reversed.

3. Conflict of Interest

 Applying the abuse of discretion standard on the basis of Conner 's two-step analysis, we first ask whether the trial court's conclusion that circumstances of record did “evidence a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner” (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5) was within the scope of the court's sound discretion.

We should note preliminarily that we agree with the trial court that the Rivers episode has no direct bearing on this issue.   The defendants argue that the decision to retain Rivers was vivid evidence of Borland's “efforts to manipulate the prosecution for its own advantage” and that the retainer reflected unfavorably upon the ethics and professionalism of both Rivers and Borland.   But of course the motives and behavior of either Borland or Rivers are relevant to the issue before us only insofar as either might have some tendency in reason to establish bias in the district attorney's office.   The record sufficiently supports the trial court's implied findings that Rivers did not discuss the possibility of employment with Borland until after the defendants had been indicted, and that Rivers did no further work for the district attorney after he resigned to accept Borland's retainer on March 17, 1993.   Thus, we find no basis for a rational conclusion that Borland's offer to retain Rivers, or Rivers's acceptance of the retainer, could have biased the district attorney's office against the defendants in any significant respect.

 The People argue that Borland's payments to assist in the investigation could not have created a conflict of interest unless they engendered in the district attorney or any member of his office a personal interest or emotional involvement potentially adverse to the defendants.   To establish their premise that “a district attorney recusal requires a showing of intense personal involvement,” the People rely primarily on People v. Battin, supra, 77 Cal.App.3d 635, 143 Cal.Rptr. 731.   Battin, a county supervisor, had been convicted of misuse of public funds and other crimes for using county employees, during their working hours, to assist him in his campaign for statewide office.   Battin asserted that the district attorney had a disabling conflict of interest in that (1) a civil suit between the county and an association of county employees had been pending during the prosecution, (2) several members of the district attorney's office had testified at hearing on Battin's claim of discriminatory prosecution, and (3) there was personal animosity between Battin and the district attorney.   In the course of concluding that Battin had received a fair trial, the Court of Appeal pointed out (with specific reference to the civil suit) that certain cases cited by Battin were distinguishable because those cases had revealed “intense personal involvement of district attorneys in the very cases they are called upon to prosecute.”  (77 Cal.App.3d at p. 671, 143 Cal.Rptr. 731.)

Other cases decided both before and after enactment of section 1424 have recognized that a finding of conflict of interest may derive compelling support from evidence that the district attorney had an interest or involvement, potentially inconsistent with the defendant's, that was in some sense “personal” or “emotional” (see, e.g., People v. Superior Court (Greer), supra, 19 Cal.3d 255, 267, fn. 8, 270, 137 Cal.Rptr. 476, 561 P.2d 1164;  People v. Superior Court (Martin) (1979) 98 Cal.App.3d 515, 521, 159 Cal.Rptr. 625;  People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5), or at least “extraneous to his [or her] official duty” (People v. Municipal Court (Byars) (1978) 77 Cal.App.3d 294, 299, 143 Cal.Rptr. 491;  cf. People v. Superior Court (Martin), supra, 98 Cal.App.3d at pp. 521–522, 159 Cal.Rptr. 625).

The district attorney must base its decision to prosecute on a “dispassionate assessment of the propriety of criminal charges.”  (Young v. U.S. ex rel. Vuitton et Fils S.A. (1987) 481 U.S. 787, 805, 107 S.Ct. 2124, 2136, 95 L.Ed.2d 740.)   Although prosecutors need not be entirely “ ‘neutral and detached,’ ” and may prosecute “with earnestness and vigor”(Berger v. United States (1935) 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314;  Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 248, 100 S.Ct. 1610, 1616, 64 L.Ed.2d 182), nonetheless any motivation extraneous to his or her duties tends to cast doubt on the validity of his or her prosecutorial acts.

Personal interest or emotional involvement will have a particularly strong tendency to imply extraneous motivation.   But it does not follow that only evidence of personal interest or emotional involvement will support a conclusion that there is “a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner.”  (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   Neither the statute nor the Supreme Court's analysis in Conner requires a finding of personal interest or emotional involvement in determining conflict of interest.   The Conner definition is broad enough to extend beyond motivations extraneous to the district attorney's official duty, to any circumstances which, in fact or in appearance, raise a “reasonable possibility” that the district attorney's office “may not exercise its discretionary function in an evenhanded manner.”   The Supreme Court implicitly recognized the breadth of its definition, but anticipated that the legislatively desired reduction in recusals would be achieved by the “additional ․ requirement,” distinct from the definition of a conflict of interest, that the conflict be “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 pp. 147, 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   Thus, we disagree with the People's contention that intense personal or emotional involvement must be found in order to conclude that a prosecutor may not exercise its discretionary function in an evenhanded manner.

 The People further suggest that the trial court may also have attached inappropriate weight to its concern that revelations to a jury concerning the Borland payments might embarrass the district attorney.   They specifically point to the court's remark that “if the District Attorney's office continues on with this prosecution, they will be on trial.”   According to the People, the decision whether to risk the jury's disapproval was within the purview of the district attorney's official function and thus irrelevant to recusal, and a prosecutor's desire to vindicate his own actions has been judicially rejected as a recusal ground.   On this record, they add, “other than speculation there is no basis for a finding of actual conflict;  instead, the remarks are based on the trial court's own perception of an appearance of impropriety.”

The defendants respond that the concern is relevant to recusal:  “A prosecutor intent on vindicating his own actions cannot be objective.   Whether or not the evidence warrants it, he must see the prosecution through in order to acquit himself of any wrongdoing.”

Although it observed that the concern was “very troubling,” the trial court clearly indicated that it would not take the concern into account with respect to recusal.   The People maintain, however, that notwithstanding the court's disclaimer, “the number of times the trial court addressed the issue show that the issue influenced the recusal decision.”   In our view, the possibility that the district attorney's office might be called upon to defend its decisions does not compel a determination that there was a conflict of interest within the Conner definition.   In evaluating the recusal issues we therefore assign no weight to the trial court's concern and accept the trial court's indications that it did not do so.

 To summarize thus far, we reject the claims that the issue before us turns upon either Borland's retainer of Rivers or the district attorney's lack of personal involvement.   Instead, whether a conflict of interest existed here will stand or fall on the fact that Borland paid certain of the expenses of the criminal investigation.

With conscious regard for the breadth of the trial court's discretion and for the corresponding requirement that we give deference to the trial court's decision, we conclude that the trial court's conclusion exceeded the bounds of its discretion.   The circumstances presented here do not furnish rational support for the requisite determination that there was “a reasonable possibility that the [district attorney's] office may not exercise its discretionary function in an evenhanded manner.”  (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   In relative terms and in this day and age, the amounts Borland paid were by no means so large as the defendants assert.   Borland paid for no more than the gathering of some part of the data upon which the district attorney would base his decision whether to prosecute.   Borland's participation was comparable to the cooperation victims often give to prosecutors in criminal cases.   On a purely business level the decisions of the district attorney and his representatives to suggest and to accept the Borland payments made sense in light of the district attorney's restricted budget and thus can be said to have been intrinsic rather than extraneous to the official duties of the office.   There is no indication in the record that Borland intended (or that the district attorney would have believed Borland intended) to influence the decision itself.   Any sense of obligation or favoritism the payments might have engendered was so minimal as to be insufficient to show a conflict of interest existed within the meaning of section 1424.

4. Gravity of the Conflict

 Even if we were to sustain the trial court's determination that there was a conflict of interest, we would be compelled to conclude on this record that it would have exceeded the court's discretion to find further that the conflict was “so grave as to render it unlikely that defendant will receive fair treatment․”  (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   Careful consideration of the gravity of the perceived conflict of interest is especially important where, as here, the recusal order extends to the entire office of the district attorney rather than only to one or more individual members of the office.   Recusal of an entire district attorney's office will involve commitment of the resources of a second prosecutorial agency—normally either the Attorney General or a special prosecutor retained at public expense—and inevitable duplication of work and cost.  “[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 elected office and, perhaps even more significantly, the residents of the county are deprived of the services of their elected representative in the prosecution of crime in the county.   The Attorney General is, of course, an elected state official, but unlike the district attorney, is not accountable at the ballot box exclusively to the electorate of the county.   Manifestly, therefore, the entire prosecutorial office of the district attorney should not be recused in the absence of some substantial reason related to the proper administration of criminal justice.”   (People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 204, 150 Cal.Rptr. 156;  see also People v. Lopez, supra, 155 Cal.App.3d at pp. 821–822, 202 Cal.Rptr. 333 [“particular caution” required in deciding whether to recuse entire prosecutorial office rather than a single prosecutor];  People v. Hernandez (1991) 235 Cal.App.3d 674, 678, 286 Cal.Rptr. 652 [where entire prosecutorial office has been recused, showing of a conflict of interest must be “especially persuasive.”] )

 This is not to say that a court should never recuse an entire district attorney's office.   As the defendants point out, when a sufficiently grave conflict of interest may be said to pervade a district attorney's office, that office “has lost [its] accountability to the people and [its] ability to serve them disinterestedly.”   But in the exercise of its discretion a trial court considering recusal of an entire office must take special care to assure itself that the conflict is indeed sufficiently grave.   It has been suggested by way of example that such recusal has been found appropriate on the basis of “intense emotional involvement in the case on the part of one or more employees of the district attorney's office,” or where “the district attorney himself, not a deputy, was the attorney for the defendant in matters related to the current charges, and necessarily learned confidential information about the underlying facts,” but not “merely because one or more deputy district attorneys are witnesses in the case.”  (People v. Hernandez, supra, 235 Cal.App.3d at p. 678, 286 Cal.Rptr. 652.) 3

The defendants profess not to advocate “a per se rule that payment of private money must disqualify the prosecutor in every case.”   But they appear to argue that the determination of the gravity of a conflict must be left primarily if not wholly to the discretion of the trial court.   In other words, if the record does not illuminate the question whether a conflict of interest will render it “unlikely that defendant will receive fair treatment,” we simply should not attempt to review the trial court's answer at all.   The defendants suggest that this is what the Supreme Court did in Conner.   In the defendants' view, “Conner teaches that trial courts must use their knowledge of human nature and the individuals involved to assess the likelihood that the conflict will interfere with the defendant's right to a fair trial.”

We have acknowledged our obligation to defer to the trial court in its exercise of judicial discretion.   But even deferential review of an essentially fact-based decision such as this one requires exploration of the factual basis for the decision in the record before the reviewing court.   If neither the evidence nor rational inferences from that evidence support the trial court's discretionary decision, then it would be an intolerable abdication of the appellate function to say—as the defendants appear to suggest—that we will nevertheless conclusively assume that the trial court had a sufficient basis for its decision.   Certainly this kind of assumption did not underlie the Supreme Court's decision to affirm the trial court's recusal order in Conner.   There the Supreme Court carefully summarized the factual record which, in its view, reflected circumstances “sufficient to sustain the trial court's ruling.”  (34 Cal.3d at p. 149, 193 Cal.Rptr. 148, 666 P.2d 5.)

The trial court does not appear to have addressed Conner 's question whether the conflict of interest was so grave as to render it “unlikely that defendant will receive fair treatment.”   During argument on the motion the court defined the issue as whether an actual conflict was created by the victim's payment of investigation expenses.   The court then asked the Attorney General, “Would you agree with me ․ that in that definition [of actual conflict of interest] also is ․ whether the evidence provides a reasonable possibility that the D.A.'s office may not exercise its discretionary function in an even-handed manner?․  Is that not part of the standard that governs my decision here?”   The court concluded:  “I don't know how it can get any more fundamental than this[:]  ․ [T]his is simply the payment of money to defray expenses ․ and the expense has already been incurred ․ and that certainly would be some rather strong evidence of a reasonable possibility that the discretionary function that's fundamental to a District Attorney is compromised and thereby would not necessarily be used in an even-handed manner.   I just don't know how you get around that one.”

These comments indicate that the court applied Conner 's definition of conflict of interest in finding that a conflict of interest did exist.   But the court then went directly to its conclusion that the entire office of the district attorney should be recused.   Perhaps the recusal order may be read to imply the necessary conclusion that it was unlikely that the defendants would be fairly treated, but we do not have the advantage of the trial court's views as to where support for such a conclusion can be found in the record.   Nor does our own search of the record disclose such support.

In Conner the Supreme Court enumerated factors, tailored to the facts before it, that were pertinent to the question whether the conflict of interest arising out of the emotional confrontation between the defendant and the deputy district attorney was so grave as to warrant recusal.   The defendants propose comparable factors in this case—namely, “[t]he type of case, the amount of money, the circumstances of the payment, and the openness or secrecy of the process․”

Applying the first of these proposed criteria, the defendants argue that improper influence is more likely to occur in a trade secrets case such as this.   In the defendants' view, a corporate victim will be tempted to encourage criminal prosecution as faster, less expensive for the victim, and more intimidating to the competitor.  “The criminal process is also a superb discovery tool for later civil litigation․”  But, the defendants argue, the prosecutor may be less enthusiastic about assigning priority to the arcana of trade secrets ahead of the more visible and politically pressing concerns of controlling violent crime, and may decide instead to apply his or her limited budget to prosecution of violent crimes.   It is at this point that the corporate victim will undertake to sway the prosecutor by contributing to the cost of prosecution and in other ways use its financial and political resources to influence prosecutorial decisions.   The defendants also suggest that complaining corporations will be able to influence the expert consultants and witnesses who will be essential to investigation and trial of cases of this kind.

The defendants' argument may fairly be characterized as almost entirely speculative.   Also, it is addressed not to the dispositive question whether the district attorney was influenced to act in ways unfair to the defendants but rather to whether a corporate victim such as Borland would have the motivation and the resources to influence the district attorney.

The evidence of record tends to negate any implication that Borland set out to influence the district attorney's office, since it was the district attorney, not Borland, who first proposed Borland's payment of investigative costs.   At the outset, in the course of a nightlong effort to secure evidence before it could be destroyed, representatives of the district attorney's office perceived that they lacked personnel qualified to search the computer storage media, and they made the practical suggestion that Borland simply provide qualified people to accompany the officers.   Borland's unwillingness to do so left the district attorney's office with the same problem;  their fallback solution was to hire qualified people, but then they encountered budget concerns.   It was at this point that a representative of the district attorney's office asked Borland whether Borland would find and pay for a qualified person.   There is nothing but speculation that at this point the district attorney's motivation was anything other than to find the most cost-effective way to gather data on which to base a charging decision.4  Borland's motivation for responding affirmatively to the district attorney's request, and for finding and subsequently paying Klausner, is, in these circumstances, essentially irrelevant.

Once Borland's willingness to share some of the cost of the investigation was preliminarily established, it was not surprising that the district attorney should return to Borland twice more:  first for payment of Strawn's bill and then with the report of a typing delay, which led Borland to offer to pay for transcript preparation.   There is no basis in these facts for a reasonable inference that Borland sought to manipulate the district attorney, or (more directly to the point) that it succeeded in doing so.

The defendants further suggest that the district attorney had “authorized his office to accept large sums of money” from Borland.   The implication is that the sums were so large as to permit an inference that the district attorney was in fact influenced by their very amount to treat the defendants unfairly.   The suggestion is unconvincing.

In the first place, strictly speaking the district attorney's office did not “accept ․ sums of money” in any amount:  The record reflects that they received services—computer expertise and interview transcription—for which Borland paid.   Thus as a practical matter Borland provided assistance in the criminal investigation, by no means a matter of direct and obvious benefit for which anyone in the district attorney's office would necessarily feel beholden and surely a far cry from the kind of unrestricted payoff the defendants' statement implies.

Secondly, as we noted earlier, there is nothing in the record to indicate that the amounts—$10,850 for consultants, $2,232 for transcribers—were especially “large,” either relative to the other costs of the same investigation or to the district attorney's budget.   It could be inferred that the district attorney's office considered the costs significant from the fact that it asked Borland to pay them.   But the amounts alone do not compel an inference that the district attorney's office would be unlikely to treat the defendants fairly.

The defendants and their supporting amici next tender a series of assertions in support of the very broad generalization that “payment of money compromises the neutrality of a prosecutor.”   None of these assertions withstands analysis.

The defendants first offer the general proposition that “[a] prosecutor may not owe a duty of loyalty to an interested person.”   The proposition is valid in the abstract but begs the question whether, in this case, the district attorney believed he owed a duty of loyalty to Borland.   The defendants' proposition is drawn primarily from Young v. U.S. ex rel. Vuitton et Fils S.A., supra, 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740, a clearly distinguishable case in which the United States Supreme Court narrowly held “that counsel for a party that is the beneficiary of a court order may not be appointed to undertake contempt prosecutions for alleged violations of that order.”  (481 U.S. at p. 790, 107 S.Ct. at p. 2128.)   The defendants also cite several comparable cases from lower federal and state courts.   The defendants argue that the prosecutors in these cases “had no intense, personal interest in the outcome of the case they intended to prosecute.   Rather, the problem was that they, like the prosecutor here, owed allegiance to someone other than the state they were obligated to represent.”   Contrary to the defendants' assertion, there is no comparable showing of “allegiance” owed to Borland in this case.

The defendants next argue that “[a] prosecutor's neutrality may not be compromised by financial considerations.”   Their somewhat more specific point is that “a public official's interest in his or her office budget may give rise to a conflict of interest.”   Again the propositions are valid in general but are not effectively brought to bear on the circumstances of record before us, and again the defendants rely on distinguishable cases.

The defendants cite Tumey v. Ohio (1927) 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, and Ward v. Village of Monroeville (1972) 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267, cases in which the United States Supreme Court stated (in Tumey, 273 U.S. at p. 523, 47 S.Ct. at p. 441) and reaffirmed (in Ward, 409 U.S. at p. 60, 93 S.Ct. at p. 83) that “it certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.”   The defendants suggest that these cases, although they relate to judicial officials rather than to prosecutors, are nevertheless relevant to demonstrate that to disqualify an official a financial interest need not be personal to the official but may simply inure to the benefit of the governmental entity or agency the official represents.

These cases do not provide direct support for the defendants' argument.   The necessary distinction has been drawn for us by the United States Supreme Court itself in Marshall v. Jerrico, Inc., supra, 446 U.S. at page 248, 100 S.Ct. at page 1616:  “The rigid requirements of Tumey and Ward, designed for officials performing judicial or quasi-judicial functions, are not applicable to those acting in a prosecutorial or plaintiff-like capacity.”   Prosecutors, though subject to the constraints enumerated in Berger, are traditionally accorded wider discretion than judges.   In any event, the record does not make clear that Borland's payments were of benefit to the district attorney's office, the county, or the State of California in anything more than the remote philosophical sense that they apparently enabled these entities to pursue a criminal investigation which might otherwise have been cut short by budgetary constraints.

The defendants also cite People ex rel. Clancy v. Superior Court (1985) 39 Cal.3d 740, 218 Cal.Rptr. 24, 705 P.2d 347, in which Clancy, an attorney hired by a city to bring abatement actions under its nuisance ordinance, was disqualified on the factual ground that his contract of employment provided that his hourly fee was to be cut in half in every such action he lost.   The Supreme Court affirmed the disqualification, analogizing Clancy's function to that of a public prosecutor and pointing out that “Clancy has an interest in the result of the case․  Obviously this arrangement gives him an interest extraneous to his official function․”  (39 Cal.3d at pp. 747–748, 218 Cal.Rptr. 24, 705 P.2d 347.)  Clancy is clearly distinguishable from the case before us.

The defendants also cite People v. Barboza (1981) 29 Cal.3d 375, 173 Cal.Rptr. 458, 627 P.2d 188, in which a county public defender's contract provided that payments to private attorneys appointed because of a conflict of interest in the public defender's office were, in effect, to be deducted from the public defender's compensation.   The Supreme Court concluded that the arrangement contained “inherent and irreconcilable conflicts of interest” in a case in which the public defender had been appointed to represent codefendants and had chosen not to declare a conflict but instead to represent both of them through a trial at which both were convicted.  (29 Cal.3d at p. 381, 173 Cal.Rptr. 458, 627 P.2d 188.)   The Supreme Court noted that the public defender's contract “expressly places the public defender in a situation in which, potentially, his financial interests—both personal and professional—oppose the interests of certain of his client-defendants.”   (Id. at p. 380, 173 Cal.Rptr. 458, 627 P.2d 188.)   Once again, the unusual situation the court confronted in Barboza is clearly distinguishable from that before us here.

In their oral argument to this court, the defendants emphasized a point made by the trial court, that Borland's payments were “for a debt already incurred.”   This refers to the compensation of Strawn, whose bill was submitted to the district attorney and passed on to Borland.   Technically the district attorney, having retained Strawn directly, may have incurred a debt to Strawn;  but we perceive no significant practical distinction between this payment and the payments Borland made to Klausner's firm and to the reporting service.   In each instance Borland was simply covering certain expenses of a criminal investigation in which Borland unquestionably had an interest.

The defendants further suggest that “[p]ermitting any alleged victim to compensate the prosecution for expenses raises in the public mind the question whether there is a class bias in our criminal justice system in favor of those with money.   That perception is made much worse when the complaining witness is a well-heeled corporation and the nature of the alleged crime is so obscure and technical that it is of no interest to anyone but the participants.”   An amicus agrees that there is a “substantial and serious problem” with “the appearance of impropriety which characterizes this case.”   These suggestions disregard the legislative history of section 1424 and the Supreme Court's opinion in Conner, which taken together make clear that although appearances (whether to the public, to the parties, or to the court) may still bear on the question whether a conflict of interest exists, they are no longer a controlling consideration in determining whether the conflict is so grave as to warrant recusal.  (Cf. People v. McPartland (1988) 198 Cal.App.3d 569, 574, 243 Cal.Rptr. 752.)

The defendants further argue that the Supreme Court “has made clear that complainants should not be allowed to interfere with prosecutorial discretion.”   They cite Dix v. Superior Court (1991) 53 Cal.3d 442, 279 Cal.Rptr. 834, 807 P.2d 1063, in which the victim of a shooting had sought to object to resentencing proceedings for the assailant who initially had been sentenced to prison.   The Supreme Court held that not even the victim, as a private citizen, could properly interfere with a prosecutor's exercise of official discretion.

Again the defendants have failed to bring the point to bear on the record before us.   Under the circumstances we have described, Borland's four payments cannot rationally be elevated to the status of attempts to interfere with the prosecutor's discretion.   In any event such an attempt would not compel the essential inference that the attempt had been effective enough to compromise the prosecutor's fairness and thus to require that his office be recused.

In describing the circumstances of the payments, the defendants assert that Borland's payments were made “over a long period of time,” implying that the length of the period is relevant to the recusal issues before us.   The assertion exaggerates the facts.   The first of the four payments (for Klausner) was apparently made in mid-September 1992, and the last (for the balance of the transcription cost) early in 1993.   Thus these four payments were spread over a period of approximately five months.   The timing appears to have been dictated by the fortuities of when services were rendered, invoices submitted, and payments approved.   These circumstances of payment add nothing to support a conclusion that the defendants were unlikely to receive fair treatment from the district attorney's office.

The defendants emphasize “that all of this was done secretly.   The District Attorney testified that neither he nor anyone from his office informed the Grand Jury that when ․ Strawn testified as an expert witness, his fees were being paid by Borland.”   This assertion misstates the district attorney's testimony, which was that so far as he knew the grand jury was not told that Strawn had been “paid by Borland.”   There is no evidence that Borland paid witness fees for Strawn.

The defendants continue:  “Apparently even Deputy [District Attorney] ․ Bartram was kept in the dark about the extent of the payments after he expressed his own disapproval of the scheme․  Certainly the defendants would never have known anything about it had they not moved to recuse the District Attorney after Borland hired ․ Rivers.   The Borland payments only came to light because of a subpoena defendants issued for documents in connection with the Rivers matter.”

The defendants' choice of words—“secretly,” “kept in the dark,” “came to light”—tends to connote covert wrongdoing.   But of course the narrow issue is whether anything in the record would support a conclusion that the conflict of interest found to exist on the basis of the assertedly secret payments was “so grave as to render it unlikely that defendant will receive fair treatment․”  (People v. Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)   Would the fact that the payments were not disclosed to the grand jury or, initially, to the assistant district attorney or the defendants render it unlikely that the defendants would receive fair treatment?

That the grand jury was not told has virtually no impact on the issue of fairness.   In the abstract, the fact that a witness had ultimately been paid by the victim (an interested party to the civil dispute) rather than by the People (interested parties to the criminal dispute) might conceivably have some tendency to illuminate the witness's motivation and thus his or her credibility.   But in the circumstances of this case, it is not clear that the information as to Strawn would have been of help, or even of interest, to the grand jury, and inferably it was withheld from the grand jury for that perfectly plausible reason.   In the first place, it is not clear that the identity of the payer of Strawn's invoice was of any importance to Strawn.   Secondly, it does not appear that, from Strawn's perspective, the interests of Borland and of the district attorney's office were significantly different:  Both wanted simply to know what was in the computers Strawn had examined.   Finally, for the most part Strawn's testimony to the grand jury dealt with mechanical matters as to which there could be no significant credibility issue—i.e., what he had done to call electronic files to computer screens and to recover any deleted files for that purpose.   Strawn told the grand jury that he “simply operated the machine, and the officer told me whether or not they wanted to see that on paper.”

The fact that Bartram was “kept in the dark” is essentially irrelevant considering that Bartram is now no longer in the dark.   Had Bartram never learned of the payments, he might not have taken steps to assure that the defendants had whatever knowledge of the payments fairness might require, but by the time the recusal motion was heard and decided Bartram was fully aware of the payments.

Perhaps the defendants' best argument is that the defendants should have been told at the outset that Borland had paid for computer consultants and interview transcribers.   Informing the defendants would have ensured that the defendants had fair opportunity to use the information for any legitimate defense purpose.   But once again, the prospect that the defendants could make any legitimate use of the information (other than as a basis for the recusal order) was minimal, because the services Borland paid for were essentially ministerial and involved no significant opportunities for falsification of the record.

Finally, the defendants argue that “[t]he extraordinary weakness of the case, coupled with the District Attorney's unwillingness to commit his own resources to the investigation when it became stalled, was telling evidence that the prosecution had become a private affair done on behalf of Borland and at Borland's expense.”   Even assuming, however, that weakness of the People's case against the defendants is a relevant consideration, we have already pointed out that on the state of the record and the briefing before us we cannot know how strong or weak the People's case may be.

The defendants' reference to a “stalled” investigation evokes their earlier assertion that Borland's payments, “amounting to more than $13,000, rekindled a prosecution for alleged theft of trade secrets that the District Attorney had ‘indefinitely delayed.’ ”   The thrust of these allusions, of course, is that the district attorney had been either unwilling or unable to proceed and that Borland had thereupon taken over, contrary to the precept that public prosecutions should be controlled by public prosecutors.

The record provides no basis for an inference that Borland took over the prosecution of the case.   The allusions to such impropriety are ultimately based on the testimony of John Hansen, Borland's associate general counsel, who recalled the circumstances of his offer to pay for the transcription of the audiotaped interviews.   Hansen's conversation with a district attorney investigator occurred late in 1992, after Borland had paid or agreed to pay for Klausner's and Strawn's work.   The investigator told Hansen that the investigation was being delayed indefinitely because no one was available to transcribe all of the interviews with Borland witnesses.   Hansen did not recall the exact sequence of the conversation, “but I said if it would help for the investigation to be resolved more quickly, that I'm sure that Borland would pay someone to have transcripts done for the District Attorney.”   The investigator promised to “check it out,” and later told Hansen “that it would be fine.”   Subsequently, Borland paid $2,232 for transcription of the interviews.   There is no evidence that it made any other payment to or for the direct benefit of the district attorney's office.

We do wish to make note of one consideration touched on only briefly by the parties.   The function of prosecutorial recusal, as we take it, is to remedy a perceived defect in an ongoing criminal prosecution by removing a disqualified prosecutor or prosecutorial agency so that the prosecution can proceed under the management of a qualified prosecutor.   If recusal will not in fact effect a remedy—if it will not remove the disqualifying circumstance from the case—then arguably the necessary cost and delay entailed in a recusal is unwarranted and recusal should not be ordered.   In this case it is difficult to see how recusal would eliminate whatever effect the Borland payments may have had.   In the event of recusal the benefit of the services for which Borland paid would remain with the case when it was transferred to the Attorney General or to a special prosecutor, who presumably would feel a sense of gratitude similar to the one the defendants attribute to the district attorney's office.

In any event a judge could not reasonably conclude, from the circumstances of record here, that Borland's payments would have had an effect on the district attorney, extraneous to his official function and unfavorable to the defendants, so grave as to render it unlikely that the defendants would receive fair treatment throughout the criminal proceedings.   We should not be understood to say that private payments by a victim for costs of a public prosecution will never warrant recusal.   As the Attorney General's representative acknowledged in the trial court, “with individual cases or prosecutors” the practice of permitting a victim to pay costs of investigation “might create an actual conflict, a situation where a decision might have been made because of the payment.”   Nevertheless, in the case before us, there is no basis for a rational conclusion that this prosecutor should be recused.


The order of recusal is reversed, and the matter is remanded with directions to deny the motion for recusal.


1.   Amici have debated the significance of the lack of formal written notice of this separate ground, but no party has asserted procedural prejudice and we perceive none.

2.   All further statutory references are to the Penal Code unless otherwise specified.

3.   As another basis for inferring gravity of a conflict, defendants suggest that the weakness of the case may contribute to the distortion of prosecutorial objectivity.   Because such distortion may not be apparent on the record, “appellate deference to the trial court's judgment is even more important in a recusal case than in other types of appeals.”   The premise of this argument, of course, is that this case is “remarkably weak” on its merits.   It is neither practical nor appropriate, however, to evaluate such a premise at this stage and upon the record and briefing now before us.

4.   Danner testified that his primary concern was that Borland not be asked to pay expenses for potentially crucial witnesses whose testimony might be subject to impeachment on the basis of Borland's payments:  “I didn't really care ․ what motivation [Borland] had.   They could have been motivated by generosity, by self-interest at that point.   I didn't really care.   At the particular point I made the decision, I made it on the basis ․ [of] the financial situation we had and the question of whether or not it would be a significant issue in the case.”

ELIA, Associate Justice.

PREMO, Acting P.J., and WUNDERLICH, J., concur.