Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BH 003597 William C. Ryan, Judge.
Steven Cooley, District Attorney, Lael Rubin and Tracey Lopez, Deputy District Attorneys, for Plaintiff and Appellant.
Bingham McCutchen, Geoffrey L. Robinson, Julie Jones, Nadia L. Costa, and Joshua Safran for Defendant and Respondent.
FLIER, J.
This is an appeal from an order of the trial court that recused the District Attorney of Los Angeles County from In re Peagler, case No. BH003597. Penal Code section 1424 provides, in relevant part, for the recusal of district attorneys upon a noticed motion; under section 1238, subdivision (a)(11), an order recusing a district attorney is an appealable order. We reverse.
All further statutory references are to the Penal Code unless otherwise indicated.
GOVERNING PRINCIPLES
“The motion [to disqualify the district attorney] may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (§ 1424, subd. (a)(1).) A “conflict” within the meaning of section 1424 “exists whenever the circumstances of a case evidence a reasonable possibility that the DA’s [district attorney’s] office may not exercise its discretionary function in an evenhanded manner.” (People v. Conner (1983) 34 Cal.3d 141, 148.) “While section 1424 does not specify whether the disqualifying conflict must be ‘actual’ or need only generate the ‘appearance of conflict,’ in either event, the conflict must be of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered.” (Id. at p. 147.)
“[People v.] 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 receive a fair trial must be real, not merely apparent, and must rise to the level of a likelihood of unfairness. Thus section 1424... 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.” (People v. Eubanks (1996) 14 Cal.4th 580, 592.) “There is, then, a two-part test: whether there is a conflict of interest, and whether it is so grave as to result in the likelihood of actual prejudice to the defendant. (People v. Eubanks, supra, 14 Cal.4th at p. 592.)” (Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 200.)
The need for prosecutorial impartiality extends to all portions of the proceedings, not only to the trial. (People v. Eubanks, supra, 14 Cal.4th at p. 593.) Thus, the conflict must be assessed on the district attorney’s discretionary powers exercised either before or after trial, such as “plea bargaining or sentencing recommendations.” (Ibid.)
“[R]ecusal of an entire prosecutorial office is a serious step, imposing a substantial burden on the People, and the Legislature and courts may reasonably insist upon a showing that such a step is necessary to assure a fair trial.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1156.) “It is a disfavored remedy that should not be applied unless justified by a substantial reason related to the proper administration of justice. [Citations.] The showing of conflict of interest necessary to justify so drastic a remedy must be especially persuasive. [Citation.]” (Millsap v. Superior Court, supra, 70 Cal.App.4th at p. 201.)
This court’s role is “to determine whether there is substantial evidence to support the findings [citation] and, based on those findings, whether the trial court abused its discretion in denying the motion.” (People v. Breaux (1991) 1 Cal.4th 281, 293-294.) But “[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
FACTS
This rather unusual case begins with an allegedly abusive relationship between Deborah Peagler and Oliver Wilson that lasted for approximately six years until Wilson’s murder in 1982. The details of that relationship, which included Wilson forcing Peagler into prostitution when she was 16, are not material to the issue on appeal, with one exception. The depravity of Wilson’s conduct toward Peagler allegedly supplied the motive for the hiring by Peagler of two men to murder Wilson.
After Wilson was murdered in May 1982, Peagler became involved with Anthony Reedburg, who was one of Wilson’s friends. Reedburg had acted as a paid informant for the Los Angeles County Sheriff’s Department and the Los Angeles Police Department. In October 1982, Peagler returned to Florida, which was originally her home. Reedburg was angry over this move. In retaliation, he told officer Michael Griggs, and later deputy District Attorney Frederick Horn, that Peagler told him that she had hired two men, Ramone Sibley and Dayon Lively, to murder Wilson. Peagler was arrested based on this information.
As Reedburg put it in a declaration, as time went on, “I wasn’t mad at Deborah any more” and he “didn’t want to lie about Deborah anymore.” Exactly how or when Reedburg repudiated his statement that Peagler had hired Sibley and Lively to murder Wilson is not clear. In Peagler’s preliminary hearing in February 1983 Reedburg was evasive but apparently did not clearly repudiate his statement about the murder being for hire. Thus, the case went forward and on March 1, 1983, the district attorney charged Peagler with intentional murder for financial gain. In April 1983, Chief Deputy Curt Livesay, who was to play a continuing role in this case, approved the decision to seek the death penalty.
For reasons that need not detain us, Reedburg’s credibility eroded in the ensuing months. On October 26, 1983, in an internal memorandum addressed to Livesay, the trial deputy and his supervisor wrote that Reedburg “appears to have committed perjury during the preliminary hearing.” Although the memorandum stated that the perjury affected matters that were “collateral to the substance of the charges,” Reedburg’s credibility was “now in question,” and, because the murder for hire charge could only be established through Reedburg’s testimony, the district attorney would be “hard pressed to obtain a finding of the special circumstances in the case let alone the death penalty.” But there appears to have been other flaws in the case besides Reedburg’s lack of credibility. The memorandum goes on to state that it was now believed that, if money changed hands, it was “hush money” rather a prearranged plan to pay for the killing and that it appeared that Sibley had received nothing at all. Finally, the memorandum noted the “possibility” that Wilson was killed because he had molested one of Peagler’s children.
We omit as essentially immaterial an account of Reedburg’s attempts in 1983 to trade his testimony for a favorable disposition of an assault charge.
This memorandum sheds some light on what had happened 13 days before, on October 13, 1983, when, in open court, the district attorney proposed to strike the special circumstances allegation and the charge of conspiracy to commit murder in return for Peagler’s plea of guilty to a charge of first degree murder. Deputy District Attorney Horn stated the factual bases of the plea to be that Sibley and another individual met Peagler and Wilson in a public park, Wilson having been “brought to the location by... Peagler,” and that Wilson was “set upon by the other two individuals and was subsequently murdered.” Horn went on to conclude: “The insurance proceeds from that killing were then distributed by this defendant to the other two individuals.” Peagler’s plea of guilty to first degree murder was made and accepted by the court and she was sentenced to 25 years to life.
The sequence of the plea entered on October 13, 1983, and the internal memorandum of October 26, 1983, is odd. Although the October 26, 1983 memorandum ostensibly informs Livesay that it “would appear appropriate to strike the special circumstances allegation,” in fact that had already happened. By October 26, 1983, the case was over, yet this memorandum appears to deal with the case as if it were still unresolved and awaiting prosecution.
The record contains partial transcripts of parole hearings before the Board of Prison Terms on April 10, 1997, October 21, 2003, and December 21, 2004. On each of these occasions, the representative of the district attorney’s office referred to the crime as a murder for hire. During two of these hearings, the district attorney referred to Reedburg as an important witness without disclosing the contents of the October 26, 1983 memorandum.
Peagler’s current counsel, Bingham McCutchen, agreed to represent her in February 2003. The firm began to develop the background of the abuse Peagler had suffered at Wilson’s hands. The firm retained as consultants David H. Guthman and Peter Bozanich, both retired members of the district attorney’s office, who assisted in putting together a defense based on the battered spouse’s syndrome, which, it was anticipated, would yield a better result than the lengthy prison term that had been imposed in 1983.
Both Guthman and Bozanich held high-level positions prior to their retirement. Guthman was a deputy district attorney from 1977 to 2004 and from 2000 to 2004 was a member of the special circumstances committee. Bozanich was a deputy district attorney from 1972 to 2004, when he retired as an assistant district attorney. In addition to extensive trial experience, Bozanich held a succession of managerial and supervisory posts.
What follows is based on the declarations under penalty of perjury of Guthman, Bozanich and Joshua Safran, an attorney with Bingham McCutchen. Guthman’s, Bozanich’s and Safran’s account is essentially uncontradicted.
In June 2005, Bingham McCutchen provided Livesay with the evidence of the abuse, physical and mental, that Wilson had inflicted on Peagler. Livesay and his staff reviewed these materials. On June 30, 2005, Bozanich spoke with Livesay’s special assistant, Karla Kerlin, who told Bozanich that Peagler’s case was very compelling and that she was recommending to Livesay that the district attorney’s office should work to release Peagler. She cautioned Bozanich that Livesay might not go along with this recommendation.
A meeting took place on July 26, 2005, between District Attorney Steve Cooley, Livesay, who was then Chief Deputy, Kerlin, counsel from Bingham McCutchen, Guthman and Bozanich. Bozanich characterizes the meeting as amicable and not adversarial. In Safran’s words, “[a]ll parties were in agreement that Ms. Peagler should be immediately released from prison and that we needed to get her out. The only question remaining was how to get it done.” The defense objected to using the parole process and to pleading guilty to second degree murder; Cooley yielded to these objections by stating that these options were “off the table.” Cooley finally suggested that his office would have to think the matter over and would contact the defense with a proposed course of action. This came in two days, on July 28, in the form of a letter from Livesay that stated that voluntary manslaughter most accurately described Peagler’s conduct, that she should be released for time served and that the defense should file a habeas corpus petition under section 1473.5 in order to return Peagler to the jurisdiction of the superior court.
In part, subdivision (a) of section 1473.5 provides: “A writ of habeas corpus also may be prosecuted on the basis that expert testimony relating to intimate partner battering and its effects, within the meaning of Section 1107 of the Evidence Code, was not received in evidence at the trial court proceedings relating to the prisoner’s incarceration, and is of such substance that, had it been received in evidence, there is a reasonable probability, sufficient to undermine confidence in the judgment of conviction, that the result of the proceedings would have been different.”
The defense prepared the petition under section 1473.5 as a stipulated, joint petition signed by the defense as well as the district attorney’s office. This was sent to the Livesay’s office on August 10, 2005.
What now ensued was a steady retreat by the district attorney’s office from Livesay’s letter of July 28, 2005. The first indication of this was the comment from Livesay’s special assistant Kerlin on August 16, 2005, that the agreement of July 26, 2005, had caused a political firestorm in the district attorney’s office. The defense also learned that a joint, stipulated petition was out of the question. The next day, Kerlin elaborated that the “appellate litigation people” and the “lifer hearing people” in the district attorney’s office were upset because they had not been included in the July 26, 2005 meeting. Kerlin then went over the petition with the defense, pointing out what had to be taken out, including references to a plea agreement and the district attorney’s determination that Peagler was guilty of only voluntary manslaughter.
On August 23, 2005, Safran learned that Lael Rubin, the head of the district attorney’s appellate section, had told Livesay that Peagler’s case had to go through normal channels and that the Peagler matter had been assigned to her, with Livesay stating that the district attorney’s office would have to stand behind the offer that it had made to the defense. Guthman thought that Rubin was upset because she had been left out of the decisionmaking process.
Safran contacted Rubin. Safran was concerned that if the section 1473.5 petition was not filed jointly with the district attorney’s office, it would be summarily denied. The gist of Rubin’s position was that the defense should go ahead and file the petition in the redacted form. According to Rubin, there was no point in discussing anything, including the district attorney’s response to the petition, until it was on file. The defense filed the redacted petition.
On September 12, 2005, Assistant District Attorney Curtis Hazell wrote the defense that Livesay’s “July 26, 2005, offer to accept a plea of manslaughter from your client, Deborah Peagler, should jurisdiction return to the Los Angeles Superior Court, is withdrawn.” The defense was unable to contact Rubin until September 19, 2005, when she told them on the telephone that Hazell’s letter was an objection to the process by which the agreement was reached, and not an objection to the substance of the agreement. When the defense, per Safran, protested that they had a deal, Rubin said that she would have to talk to Hazell about that. When Safran asked Hazell the next day about how the agreement would be implemented, Hazell replied that “if you think you have a deal, you will have to litigate that.”
Guthman told Safran that Livesay was on vacation and that he did not know about, and had not authorized, Hazell’s letter of September 12, 2005. In early October, Livesay’s assistant Kerlin told Guthman that there was a firestorm in the office about the case, that she was “hiding” because Livesay was gone, that she was being blamed for the agreement and that she felt her job was in jeopardy. On October 7, 2005, Livesay told Guthman that, notwithstanding Hazell’s letter, Livesay was committed to the agreement of July 26, 2005, because it was the right thing to do. Livesay also commented that Hazell’s letter had ignited a bonfire in the office that Livesay would have to put out.
On October 22, 2005, Guthman spoke with Cooley, Hazell, Rubin and Assistant District Attorney John Spillane. Spillane and Rubin told Guthman that the concern was over the process by which the July 26, 2005 agreement was reached and not over the substance of the agreement. Cooley and Hazell dismissed Bingham McCutchen’s worries about the petition with the comment that these worries were to be expected of “civil lawyers.” The same day, Livesay again confirmed to Guthman that he was confident that the disposition that he had set forth in his July 28, 2005 letter would be accomplished. Livesay told Guthman that some people in the office were “terribly offended” by not being included in the July 26, 2005 meeting.
Judge Wesley summarily denied Peagler’s petition on December 13, 2005. The district attorney’s office did not file a response, formal or informal, to the petition. The order denying the petition was not received by the defense until December 22, 2005.
On December 23, 2005, Guthman spoke with Livesay who, upon learning that the petition had been denied, stated that denying Peagler the relief she was seeking was a miscarriage of justice. Livesay said he would be away for several days but that he would discuss the matter with Cooley and resolve the matter in accordance with his July 28, 2005 letter.
Guthman spoke with Livesay on the telephone on January 12, 2006. Livesay stated during that conversation that “I know we’re not doing the right thing.” Livesay and Safran spoke on February 2, 2006. Livesay told Safran that he had contacted Judge Wesley ex parte and that he had attempted to get Judge Wesley to reconsider his ruling. Livesay told Safran that he was committed to honoring the agreement with the defense and that he was retiring the next day.
Several inconclusive conversations took place in February and March 2006 between various members of the defense team and the district attorney’s office, principally with Spillane, who had taken over Livesay’s position. These conversations ended with Spillane telling Bozanich that the district attorney’s office was reversing its conclusions that Peagler was guilty only of voluntary manslaughter and that she might have been acquitted even of this charge based on evidence of battering.
THE TRIAL COURT’S RULING
The principal hearing on the motion to recuse took place on March 14, 2008, although the court revisited the matter in a hearing that took place on April 25, 2008. The motion was heard, argued and decided on the basis of the papers filed by the parties and the arguments made during the hearing, principally on March 14, 2008. No testimony or evidence outside the papers submitted was admitted during either hearing.
The trial court’s ruling appears in a memorandum that is 12, double-spaced pages long. After a statement of the procedural background of the case, the trial court’s memorandum identifies three claims made in Peagler’s petition for a writ of habeas corpus. They are: (1) Peagler was the victim of intimate partner battering. Had that evidence been considered at her 1983 trial, it is likely that she would have been acquitted or at least convicted of a lesser offense than first degree murder. (2) Reedburg was not truthful and was known by the district attorney to have been untruthful. Yet, the district attorney, without disclosing this to the defense, used Reedburg to threaten Peagler with a conviction that could lead to the death penalty. Had Peagler and her counsel known about Reedburg, Peagler would not have pleaded guilty to first degree murder. (3) The district attorney breached the agreement made in July 2005 that would have freed Peagler. The court’s memorandum continues by summarizing the events following July 2005.
After stating, correctly, the standard for disqualifying a district attorney, the memorandum addresses the district attorney’s contention that because the claims set forth in the petition, summarized above, are not factually true, there is no conflict. The trial court rejected this contention. The court noted that this court issued an order to show cause on November 7, 2007, returnable in the superior court, regarding Peagler’s petition for a writ of habeas corpus and that this means that Peagler has made out a prima facie case. The memorandum goes on to state: “That [order to show cause] compels this court to assume, for purposes of the motion to disqualify only, that the allegations of the petition are true, and rule accordingly.”
The memorandum then notes that Peagler’s second and third claims “directly implicate the practices, conduct, and integrity of the district attorney’s office, especially its senior management both in 1983 and 2005.” The court noted that current and past high-level members of the district attorney’s office will have to testify on these two claims. Consequently, “subordinate attorneys in the district attorney’s office will be placed in the awkward position of having to cross-examine vigorously or perhaps not so vigorously or at all Mr. Cooley, Mr. Livesay, Mr. Hazell, Ms. Rubin, Mr. Spillane, and other past and present senior members of that office.” The court noted that it was probable that these subordinate deputies would not be able to disregard the fact that the witnesses are their superiors. Thus, the court concluded, the conflict is “palpable and self-evident.”
The court also found that a further conflict was presented by the district attorney’s handling of the informant Reedburg and the special circumstances allegation of murder for hire. The fact that the district attorney concluded that Reedburg had perjured himself and was not reliable was not disclosed to Peagler’s counsel in 1983. The court noted that ordinarily a claim of misconduct by a single deputy district attorney does not lead to a disqualification of the entire office but in this case “there may be an understandable tendency to over-defend and seek to prevail whatever the consequences as to what happened in 1983, especially because Mr. Livesay appears to have been involved.”
The court concluded that Peagler was “[c]aught in this crossfire of internal conflict” and that she faced “a ‘circle the wagons’ attitude against professional criticism.”
DISCUSSION
The trial court’s ruling rests on a series of assumptions. These are: (1) Peagler’s second and third claims directly implicate the practices, conduct, and integrity of the district attorney’s office, especially its senior management both in 1983 and 2005; (2) subordinate deputies of the district attorney’s office will have to examine or cross-examine senior and management-level officials of the office and may not carry out this task satisfactorily, which creates a conflict; (3) the district attorney’s office will “over-defend” its handling of the informant Reedburg in 1983, i.e., there is a “circle the wagons” mentality about the matter; (4) the office is seriously divided over the handling of Peagler’s habeas petition; and (5) the allegations of the petition must be accepted as true for the purposes of the recusal motion.
Assumptions and appearances are not evidence. The governing statute requires that the “evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” (§ 1424, subd. (a)(1).) The evidence must show that there is a real, and not merely an apparent, likelihood of unfairness. (People v. Eubanks, supra, 14 Cal.4th 580, 592.)
We begin by noting that the practices, conduct and integrity of the office are not impugned by the the fact that Peagler’s claims include the (mis)handling of the informant Reedburg in 1983 and thereafter. Unfortunately, Peagler is neither the first nor the last defendant who has claimed that the district attorney has failed to disclose exonerating evidence. It is a long way from the claim of such a serious error to the finding that the error actually occurred. Yet, the integrity of the office becomes an issue only if there was error under Brady v. Maryland (1963) 373 U.S. 83 (Brady), something which has yet to be determined.
Perhaps even more importantly, the mere fact that a claim of a Brady error has been made does not mean that the district attorney’s office will not analyze and respond to the claim in a fair and evenhanded manner. There must be at least some evidence of this; there is no such evidence in this case. The prospect that Brady error, if it occurred, would be embarrassing to the district attorney does not mean that the district attorney will not respond in a professional and evenhanded manner. One would think that on any given day there are any number of cases in every district attorney’s office when there is such a prospect. Standing alone, the prospect of an embarrassment simply does not disqualify a district attorney.
The same is true of the decision to withdraw the offer made by Livesay’s letter of July 28, 2005. Absent detrimental reliance by the defendant, the power of the district attorney to withdraw the offer cannot be doubted. (People v. Rhoden (1999) 75 Cal.App.4th 1346, 1355.) It does not follow that because the offer was withdrawn, the district attorney is therefore unable to proceed fairly with the case. It is obvious that there will be, and that at any time including the present, there are in an office with more than 1,000 lawyers disagreements between some of those lawyers, even some rather sharp disagreements. That Livesay continued until the day he retired to believe that the offer was a good one and that others did not think so means that there is, or rather was, a disagreement; it is not evidence that the district attorney cannot be fair.
We cannot agree with the trial court that subordinate deputies in the office would not conduct the direct or cross-examination of their superiors in an acceptable manner. In the first place, a management-level person called as a witness by the district attorney would not be hostile. The onus of cross-examining that witness would be on Peagler’s counsel, and not the district attorney. Secondly, it is far more likely that a subordinate deputy would want to do as well as he or she can when under the direct scrutiny of a superior than that deputy would turn in a lackluster performance. Again, there is no evidence that subordinate deputies will turn in a substandard performance because one of their superiors is on the witness stand. For these reasons, we disagree with the trial court that, on the present state of the record, there is a conflict because subordinate deputies will not be able to carry out their tasks in a competent, professional manner.
We see no evidence that the district attorney’s office will “over-defend” its handling of the informant Reedburg in 1983, i.e., that there is a “circle the wagons” mentality about the matter. This too was an assumption made by the trial court. No one testified or made a statement that no matter what, there was no error committed with respect to Reedburg. Before we can find that there is a real likelihood of this and it is the real likelihood of unfairness that is required (People v. Eubanks, supra, 14 Cal.4th at p. 592) there must be some evidence that someone in the district attorney’s office has such an attitude. There is no such evidence. We repeat that the mere prospect that ultimately Brady error may be found to have occurred does not mean that there is a “circle the wagons” mentality that precludes an evenhanded handling of Peagler’s petition. The likelihood of “over-defending” the case, to borrow the trial court’s phrase, has diminished every year since 1983, when arguably the Brady error was committed, as the deputies involved with Peagler’s case in that year have left the office for one reason or another.
That at one time there were serious disagreements between Livesay, on the one hand, and Hazell, on the other, to name two examples, does not mean that the district attorney should be disqualified from the case. As we have noted, disagreements even among senior personnel in the district attorney’s office are without a doubt common occurrences; reasonable people can differ, especially at a level where the problems are difficult and hard to resolve. And of course it is also true that it appears that the disagreements about Peagler’s case have become a thing of the past after Livesay’s retirement.
Finally, we do not agree with the trial court that it was required to assume for the purposes of the recusal motion that the allegations of the habeas petition are true. The order to show cause in the habeas proceedings means only that there is a prima facie case (In re Scott (1994) 27 Cal.App.4th 946, 949); issuance of an order to show cause does not mean that the allegations of the petitions are true. And the motion to recuse stands or falls on its own facts, which revolve around the question whether there is a conflict, and not the facts that speak to the merits of the habeas petition.
A canvass of some representative cases when the entire prosecutorial office was recused confirms that in this case it was an abuse of discretion to recuse the Los Angeles District Attorney’s Office.
In Younger v. Superior Court (1978) 77 Cal.App.3d 892, 894-896 (Younger), Johnnie L. Cochran was named Assistant District Attorney of the Los Angeles District Attorney’s Office, which was the number 3 position in the office. Cochran’s law firm, from which he withdrew to assume this post, was handling between 75 and 200 felonies pending in the Los Angeles Superior Court, including the case that led to the opinion in Younger. It was not in doubt that Cochran’s position as Assistant District Attorney involved policy decisions at the highest level, nor was it in doubt that his former law firm, wherein he had been a name partner, represented not only the defendant involved in Younger but numerous other defendants as well. The evidence of conflict was stark, palpable, and indisputable.
People v. Lepe (1985) 164 Cal.App.3d 685, 686-687, involved the recusal from that case of the District Attorney’s Office of Imperial County. Before assuming the office of district attorney for Imperial County, Thomas Storey defended Carlos Lepe in two criminal cases. The first charged assault on Betty Araujo. Herrera and Rodriguez were witnesses. The second charged intimidation of Herrera and Rodriguez, witnesses in the first case. Later, as district attorney, acting through an assistant district attorney, Storey signed and filed an information charging Lepe with assault with a deadly weapon, a knife, on Herrera and Rodriguez and infliction of great bodily injury on Herrera. As in the preceding Younger case, there is hard evidence of conflict in People v. Lepe.
In People v. Clark (1993) 5 Cal.4th 950, 996, a capital case, the defendant was represented by the Mendocino County Public Defender, Susan Massini. Before the case went to trial, Massini was elected District Attorney of Mendocino County. Shortly after her election, on the defendant’s motion the entire Mendocino District Attorney’s Office was recused and the California Attorney General took over the case. The Supreme Court approved a modification of the recusal order that allowed the district attorney’s office to give the Attorney General clerical support and it also approved the recusal of the county district attorney.
The three cases that we have reviewed provide a vivid contrast to the case before us. There is in all three cases clear and uncontradicted evidence of the conflict. In the case before us, the recusal order is predicated on a series of assumptions, some of which are quite questionable. Given that recusal of an entire prosecutorial office is a disfavored remedy that requires an “especially persuasive” showing (Millsap v. Superior Court, supra,70 Cal.App.4th 196, 201), the assumptions that the trial court made fall far short of the mark.
We conclude that, on this record, there is no evidence that supports the recusal order. It was therefore an abuse of discretion to disqualify the Los Angeles District Attorney’s Office.
DISPOSITION
The order is reversed.
We concur: RUBIN, Acting P. J., BIGELOW, J.