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Name: People v. Cannedy
Case #: A120293
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 07/31/2009

Under Penal Code section 1424, there must be an actual likelihood of unfair treatment, not merely a subjective perception of impropriety, to warrant an order recusing the district attorney or the entire office. Appellant, a former police officer, was charged with attempted acts of sexual battery and false imprisonment against two victims. The prosecution indicated that it intended to offer the testimony of a third person, a clerical employee of the district attorney’s office, who would testify about uncharged similar acts by appellant. The trial court granted the defense motion for recusal of the entire office. The crux of the motion was that the district attorney’s office would not fairly evaluate the case or exercise its discretion evenhandedly based upon the involvement of its employees as witnesses. On appeal, the court found that the trial court either did not understand or used the wrong standard under section 1424, which requires a showing that there is a reasonable possibility that the prosecutor would fail to exercise the discretionary duties of the office in a fair and evenhanded manner. Additionally, it made factual findings, some of which were not supported by substantial evidence and, by failing to consider less drastic options than recusal of the entire office, abused its discretion. Accordingly, the order recusal was reversed.