Although alleged crime victim is married to the district attorney, trial court did not err in denying motion to recuse entire district attorney’s office where petitioner failed to show that he was unlikely to receive a fair trial. Petitioner moved to recuse the Calaveras County District Attorney’s office from prosecuting a criminal action against him because one of the victims of his alleged crimes is the district attorney’s husband. The trial court denied the motion, and petitioner sought writ relief. Held: Petition denied. A motion to recuse a prosecutor “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.” (Pen. Code, § 1424, subd. (a)(1).) The mere existence of a conflict, by itself, is not sufficient to require recusal. Rather, the petitioner must establish that “the conflict is so grave as to make a fair trial unlikely.” This showing must be especially strong where the petitioner seeks to recuse the entire district attorney’s office, rather than a particular prosecutor. Although the district attorney’s marriage to the victim created a conflict of interest in this case, the Court of Appeal concluded that the trial court did not abuse its discretion by denying petitioner’s motion to recuse. Other than assigning the case to a prosecutor in the office, the district attorney was not personally involved in the case and recused herself. She established an ethical wall, which included having the assigned prosecutor make a charging decision and work under the supervision of the Attorney General. Furthermore, the district attorney is not the crime victim, is not a percipient witness, and waived her right to participate in the case as a member of the victim’s family. Although the small size of the district attorney’s office (7 attorneys) could more easily lead to a disabling conflict of interest, petitioner introduced no evidence that any of the attorneys would have been influenced by the district attorney’s interest in the case.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079225.PDF