P. v. Evaro

Filed 12/30/08 P. v. Evaro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Angelos S. Edralin, Deputy Attorneys General, for Plaintiff and Appellant.

Mark A. Arnold, Public Defender, and David L. Kelly, Deputy Public Defender, for Defendant and Respondent.

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The People appeal from an order granting defendants motion to disqualify the Kern County District Attorneys office from prosecuting the case against him. Defendants motion to disqualify asserted the prosecutor had consulted and retained as an expert the same expert defense counsel had consulted, but had not retained, several months earlier. After receiving evidence, including declarations filed by defense counsel under seal, and hearing argument, the court granted the motion and recused the entire district attorneys office. Concluding disqualification of the entire district attorneys office was not necessary or supported by substantial evidence, we modify the trial courts order and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 6, 2006, defendant drove Jacqueline Ortiz, his girlfriend, to Kern Medical Center with severe burns on the upper half of her body.^[1]Defendant was also burned. Defendant told law enforcement officers he and Ortiz had argued that day. They drove around in a pickup, and then stopped in a remote location. Ortiz was in the bed of the pickup; she started throwing things at him, including a gas can, which spilled on both of them when she swung it up to throw it. Ortiz then started trying to light her shirt on fire. When it caught fire, defendant ran to her, grabbed her, and threw her to the ground to extinguish the flames. Defendant stated his shirt caught fire in the process.

Ortiz told emergency room nurses that she was riding motorcycles and she must have spilled gasoline on herself without realizing it; when she tried to light a cigarette, she burst into flames. Later, to a police officer, she described defendant putting gasoline on her and said she ignited herself while attempting to light a cigarette. She died of her injuries six months later. Defendant is charged with murder (Pen. Code, 187(a))^[2], mayhem ( 205), arson ( 451(a)), domestic violence ( 273.5(a)), threatening a witness ( 140), and making a criminal threat ( 422), all with various enhancements and prior convictions.

At defendants preliminary hearing, an arson investigator testified that defendants injuries were not consistent with trying to extinguish someone on fire. Instead they were consistent with someone holding a lighter or match and igniting an object.

On December 15, 2006, defense counsel Michael Lukehart contacted Dr. John DeHaan, apparently an arson expert. Lukehart asserted he disclosed confidential information in that conversation. He did not retain DeHaan or contact him again.

In July 2007, Deputy District Attorney Melissa Allen consulted DeHaan as an expert. When Allen notified defense counsel she intended to use DeHaan as an expert witness, Lukehart informed Allen about his consultation with DeHaan and objected to the prosecutors use of him as an expert. DeHaan told Allen he could not remember speaking with defense counsel; Allen instructed DeHaan that, if he remembered any of his conversation with Lukehart, he should not disclose it to her or use it in forming his opinion. Allen continued to use DeHaan as an expert. She asserted DeHaan has not disclosed to her any information he acquired from the defense.

Defendant filed a motion to disqualify the district attorneys office from prosecuting the case, based on the prosecutions retention of DeHaan and on the potential use by the prosecution of another deputy district attorney as a witness. The motion was supported in part by sealed declarations. The court granted the motion without explanation, disqualifying the entire district attorneys office.

DISCUSSION

I. Standard of Review

On review of an order granting a motion to disqualify the district attorneys office, [f]actual issues are resolved under the substantial evidence test: whether there is substantial evidence to support factual determinations reached by the trial court. [Citations.] Once the pertinent factual issues are settled, the question whether the trial court's ruling should be upheld is determined under the deferential abuse of discretion test. (Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 200 (Millsap).)

II. Use of Expert Witness

Section 1424 authorizes a motion to disqualify a district attorney from performing an authorized duty. ( 1424, subd. (a)(1).) The motion 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. (Ibid.) The statute articulates a two-part test: (i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting? (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711 (Haraguchi).) [A] conflict, within the meaning of section 1424, exists whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner. (People v. Conner (1983) 34 Cal.3d 141, 148 (Conner).) Defendant bears the burden of establishing that a conflict exists. (Haraguchi, supra, 43 Cal.4th at p. 709.)

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. [Citations.] Only an actual likelihood of unfair treatment, not a subjective perception of impropriety, can warrant a court taking the significant step of recusing an individual prosecutor or prosecutor's office. (Haraguchi, supra, 43 Cal.4th at p. 719.)

The recusal 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, supra, 70 Cal.App.4th at p. 201.) One court has interpreted the necessity language of Hamilton to require that, in order to disqualify the entire district attorneys office, there must be no other alternative available but to recuse the entire district attorney's office. (People v. Merritt (1993) 19 Cal.App.4th 1573, 1579 (Merritt).)

In Conner, supra, 34 Cal.3d 141,the court found no abuse of discretion in disqualifying the entire district attorneys office, where a deputy district attorney was both a witness to, and arguably a victim of, the criminal offenses for which the defendant was being prosecuted. While Deputy District Attorney Braughton was in the courtroom before the defendants trial began, he heard noises in the jury room and the sound of a bullet hitting the wall. He ran to the jury room and saw the defendant with a gun and a deputy sheriff who had just been stabbed and shot. As the defendant turned the gun toward Braughton, Braughton ran, heard a shot, and saw a bullet hole in the wall two feet from where he had been standing. Braughton discussed his experience with 10 of the 25 prosecutors in his office. As a result of this incident, the defendant was charged with escape and assault on a police officer. Subsequently, prosecution of all the cases against the defendant was reassigned to another deputy in Braughtons office.

The trial court granted the defendants motion to disqualify the entire district attorneys office from prosecuting him on the escape related charges. The appellate court affirmed, finding there was a conflict of interest so grave as to render it unlikely that the defendant would receive fair treatment during all portions of the criminal proceedings. The court stated:

Braughton is inextricably involved in this case. He disclosed that involvement to a substantial number of his fellow workers. Because the felony division of the DA's office is composed of about 25 attorneys, we have no difficulty in assuming that there is a commendable camaraderie which exists among these officials. It is reasonable to conclude that an apparent threat to one deputy coupled with his witnessing the serious injury actually inflicted on the deputy sheriff during the same course of events may well prejudice the coworkers of Braughton and the deputy sheriff. While it may be difficult, if not impossible, to prove that a bias of the DA's office will definitely affect the fairness of a trial, the trial court is in a better position than are we to assess the likely effect of the shooting incident. We will not disturb the court's conclusion that the DA's discretionary powers exercised either before or after trial (e.g., plea bargaining or sentencing recommendations), consciously or unconsciously could be adversely affected to a degree rendering it unlikely that defendant would receive a fair trial. (Conner, supra, 34 Cal.3d at pp. 148-149.)

In Trujillo v. Superior Court (1983) 148 Cal.App.3d 368 (Trujillo), on the day the jury returned a guilty verdict against the defendant in a murder trial, the defendant bolted for the courtroom door. The prosecutor, Deputy District Attorney Levine, ran after him and tackled him. They struggled; the defendant was trying to strangle Levine with his own necktie when he was pulled off. An assistant district attorney decided to charge the defendant with escape and assault; he assigned a deputy district attorney from a unit other than Levines to prosecute the case. The trial court denied the defendants motion to disqualify the entire district attorneys office. The appellate court affirmed, distinguishing Conner.

In the Conner courts words, the incident there was harrowing, the circumstances dramatic and gripping, and the communications about the incident pervasive. Because there were but 25 attorneys in the felony division of the district attorneys office, the Conner court had no difficulty in assuming that there [was] a commendable camaraderie which [existed] among these officials. [Citation.]

Here, the incident as described by Mr. Levine was neither harrowing, nor particularly dramatic. Moreover, as observed by the trial court the San Francisco District Attorneys office is a large office. Communication about the event was minimal, the charging assistant district attorney having read about it in the newspaper and not even discussed it with Mr. Levine. Under these circumstances, we find the trial courts ruling supported by substantial evidence. (Trujillo, supra, 148 Cal.App.3d at p. 373, last bracketed insertion added.)

In Merritt, supra, 19 Cal.App.4th 1573, an investigator for the district attorneys office allegedly withheld exculpatory material from both parties, suggested the defendants employee conceal facts and commit perjury, and made sexual advances toward that employee. After discovery of this misconduct, the investigator was removed and insulated from further decisions and investigation in the defendants case. Although the trial court found no misconduct by the deputy district attorneys prosecuting defendants case, it granted defendants motion to recuse the entire district attorneys office from the prosecution of his case as a result of the investigators misconduct. (Id. at p. 1576.) The trial court based its decision on the fact that the investigator and the district attorney worked for the same office and the investigator might be called as a witness, which would create a danger that, when conflicts in testimony arose, the prosecutors might try to protect the office, and have difficulty making credibility calls. (Id. at p. 1578.)

The appellate court concluded the exculpatory evidence had eventually been disclosed, and the investigators status as a potential witness alone was not enough to justify disqualifying the entire district attorneys office. (Merritt, supra, 19 Cal.App.4th at pp. 1579-1580.) Further, procedures had been put in place to isolate the investigator from the case. (Id. at p. 1580.) The court found unsupported by the evidence the defendants contentions that the close relationship between the investigator and the district attorneys office, and the likelihood the investigator had discussed the case with other investigators or deputy district attorneys, warranted the disqualification. (Id. at pp. 1580-1581.) Rejecting the trial courts implied finding that it had no alternative but to disqualify the entire district attorneys office, the court modified the disqualification order, to preclude from participation in the defendants case only the investigator in issue and any other investigator or deputy district attorney who was shown to have participated in or approved the investigators misconduct. (Id. at p. 1581-1582.)

In Millsap, supra, 70 Cal.App.4th 196, among other charges, the defendant was charged with soliciting the murders of the two deputy district attorneys prosecuting him. The trial court denied the defendants motion to disqualify the district attorneys office from prosecuting him. The appellate court issued a writ of mandate requiring only the disqualification of the two deputy district attorneys who were the subject of the solicitation of murder charges.

The case involved the Los Angeles County District Attorneys office, the largest prosecutorial office in the nation. (Millsap, supra, 70 Cal.App.4th at p. 202.) The court noted: The circumstances of the case before us do not present a harrowing or dramatic experience for the prosecutor, such as those faced by the prosecutor in Conner, or even Trujillo. (It is, however, certainly more than a matter to be taken in stride, as the real party in interests return suggests [threats to prosecutors come with the territory].) There is no showing of widespread communication within the district attorneys office or extensive media coverage of Millsaps alleged solicitation of the murder of the prosecutors, and the prosecutors did not witness any physical action by Millsap. (Id. at pp. 202-203.) The court found no conflict of interest that would justify disqualification of the entire district attorneys office. And even if some conflict had been shown, there was no showing the defendant would suffer actual prejudice if the district attorneys office continued to prosecute the case. (Id. at p. 203.) There was, however, a potential for actual prejudice if the target deputy district attorneys prosecuted the defendant on the charge of soliciting their murders. (Ibid.) [H]aving the intended victim of a crime prosecute a defendant for commission of that very crime would demonstrate a conflict of interest ... would render it unlikely that the defendant would receive a fair trial. We believe the same may be said with respect to the Peoples right to a fair trial. (Id. at p. 204.)

In People v. Hernandez (1991) 235 Cal.App.3d 674 (Hernandez), Hernandez was the victim-witness in an assault case being prosecuted against Braverman. During Bravermans trial, there was an altercation between Hernandez and Braverman in a courthouse elevator, and Hernandez stabbed Braverman. Braverman stumbled into the courtroom, bleeding and complaining of having been stabbed by Hernandez, and a mistrial was declared. After Hernandez was charged with assaulting Braverman, he moved to disqualify the district attorneys office on grounds that several deputy district attorneys witnessed Braverman entering the courtroom bleeding, and that the district attorneys office had obtained confidential information about the background of the feud between Hernandez and Braverman in the course of interviewing Hernandez as a witness in the Braverman prosecution. The trial court granted the disqualification motion on the ground Hernandez could not receive a fair trial if the district attorneys office were simultaneously relying upon him as a witness in the Braverman case and prosecuting him in his own case.

The appellate court modified the order to disqualify only the attorneys who witnessed the aftermath of the stabbing and those who participated in the prosecution of Braverman. (Hernandez, supra, 235 Cal.App.3d at p. 681.) It also ordered that there be no communication between the attorneys prosecuting the two separate cases. The court concluded the frictions inherent in the circumstances of the Braverman and Hernandez cases gave rise to a reasonable possibility that deputy district attorneys who had received information from Hernandez about the Braverman case might not be evenhanded in prosecuting Hernandez. The court could also reasonably conclude there was a possibility that deputies who personally witnessed Braverman entering a court of law bleeding from wounds given by Hernandez might not prosecute Hernandez in an evenhanded manner. The court thus acted within its discretion in recusing those two categories of deputies from the Hernandez case. (Id. at p. 679.) As to disqualification of the entire district attorneys office, however, there was no evidence one way or the other as to whether information or impressions obtained from Hernandez by the deputies prosecuting Braverman had permeated, or would permeate, the entire 900-member Los Angeles County District Attorneys office. There was only speculation by Hernandez's attorney that it might have done so. Such sheer speculation does not constitute sufficient evidence of potential bias to recuse an entire prosecutorial office from a case. (Id. at p. 680, fn. omitted.) The court suggested a Chinese wall could be constructed between the two cases by assigning the Hernandez prosecution to deputies unacquainted with the Braverman case and by ordering the prosecutors on the two separate cases not to communicate with one another about the cases. (Id. at p. 681.)

In Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067 (Shadow Traffic), a civil case, the court addressed disqualification of attorneys based on exposure to the other partys confidential or privileged information. Plaintiffs attorneys met with representatives of Deloitte & Touche (D&T), an accounting firm, to discuss retaining the firm as experts in their case against the defendant. Plaintiff attorneys discussed their legal theories and analysis of the case, how the expert testimony was expected to fit into the trial and trial preparation, the work expected of D&T, and damages issues. The plaintiff subsequently notified D&T that it would not retain D&T as an expert.

A few weeks later, defense counsel met with some of the same representatives of D&T about retaining them as experts in the case. The D&T representatives informed defense counsel that plaintiff counsel had interviewed them, but decided not to retain them. Defense counsel retained one of the representatives and designated him as an expert witness. The plaintiff objected, and D&T eventually withdrew from the case. The plaintiff moved to disqualify defense counsels entire law firm from representing the defendant in the case, based on the plaintiffs disclosure of confidential and privileged information to D&T and D&Ts subsequent consultation with the defendant. The defendant contended its attorneys never asked or were told what plaintiff counsel had discussed with the D&T representatives in their meeting. The D&T representatives declared they could not recall learning any confidential information during the meeting with plaintiffs counsel, and they did not disclose the substance of their meeting with plaintiffs attorneys to defense counsel. There was conflicting evidence regarding whether plaintiffs attorneys told the D&T representatives during the meeting that everything discussed there was confidential. The trial court granted the plaintiffs motion, and the appellate court upheld the order.

The court rejected the defendants contention the information plaintiffs attorneys discussed in the meeting with D&T was not privileged or confidential because the plaintiff did not retain D&T. [C]ommunications made to a potential expert in a retention interview can be considered confidential and therefore subject to protection from subsequent disclosure even if the expert is not thereafter retained as long as there was a reasonable expectation of such confidentiality. [Fn. omitted.] (Shadow Traffic, supra, 24 Cal.App.4th at p. 1080.) It also rejected the defendants argument that this rule would allow a party to deplete the pool of available experts simply by quickly interviewing all of the available experts, even though it had no intention of retaining all of them. (Id. at p. 1080, fn. 9.) The court acknowledged this as a legitimate concern, but concluded there was no evidence it had occurred in this case. (Ibid.)

Regarding whether plaintiffs counsel had disclosed confidential information to D&T, the court stated: The difference between not recalling events which occurred a mere two months prior and denying these events is manifest; the failure to recollect is pregnant with the concession that the event in question may, in fact, have occurred but that the declarant has no immediate memory of it. [] In any event, to the extent these declarations created a conflict in the evidence, the trial court resolved this conflict in favor of Metro. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1083.) The court found substantial evidence supported the trial courts decision because the plaintiffs declarations indicated information traditionally considered to be confidential had, in fact, been disclosed. (Id. at pp. 1083-1084.)

The court next concluded that, when counsel discloses confidential information in a consultation with a potential expert witness, a rebuttable presumption arises that the information has been used or disclosed during the experts subsequent consultation with the opposing party about the same case. (Shadow Traffic, supra, 24 Cal.App.4th at pp. 1084-1085.) The court upheld the trial courts implicit finding that the defendant did not rebut the presumption. (Id. at p. 1087.)

Finally the court considered whether disqualification of the entire law firm was proper. Defense counsel had not challenged the request for disqualification of the entire law firm as overbroad; it did not ask the trial court to limit the disqualification order to particular attorneys in the firm. (Shadow Traffic, supra, 24 Cal.App.4th at p. 1088.) Accordingly, the court upheld the order as it was made, disqualifying the entire firm. (Ibid.)

In this case, the trial court granted the motion to disqualify the entire district attorneys office without explanation. The motion was based on defendants assertion that his counsel consulted an expert, DeHaan, and disclosed to him confidential information about the case, including attorney work product and client confidences. Thereafter, the prosecutor retained the same expert and continued to consult with him even after defendant objected. Defendant submitted two declarations under seal, elaborating on the information conveyed to DeHaan in his consultation with Lukehart and defendants reasons for believing that information was used or disclosed by DeHaan. DeHaan conceded in his declaration that Lukehart consulted him, but denied having any recollection of the nature of the consultation or the content of any information exchanged. That being the case, it appears it would be difficult for him to say with any assurance that he did not receive any confidential information from Lukehart or that he did not inadvertently disclose it to the prosecution or subconsciously use it in formulating his opinions or preparing his report. The court implicitly found that Lukehart disclosed confidential information to DeHaan and that DeHaan may have used, disclosed, or been influenced by that information in his work for the prosecution. Substantial evidence supports those findings.

The People contend defendant argued for application of the wrong legal standard in his motion for disqualification, which cited Love v. Superior Court (1980) 111 Cal.App.3d 367, 374 (Love). Love indicated that an appearance of impropriety is sufficient to justify recusal of the district attorneys office. The People assert that, because the trial court did not explain the reasons for its order, it impliedly adopted defendants incorrect legal standard. The rule is otherwise: In the absence of contrary evidence, we assume a trial court applied the correct legal standard. (People v. Eubanks (1996) 14 Cal.4th 580, 598.) The opposition papers filed by both the district attorney and the Attorney General set out the provisions of section 1424, then pointed out that Conner and subsequent cases made clear that section 1424 eliminated a mere appearance of impropriety as a sufficient ground for disqualification of the district attorney. Thus, the trial court was well advised of the correct legal standard, and there is nothing in the record to indicate it did not apply that standard.

The trial courts implied findings are sufficient to support disqualification of DeHaan as an expert for the People. We note in passing that defendant did not request DeHaans disqualification. However, disqualification of the district attorneys office, or any members thereof, without also disqualifying DeHaan and precluding the People from using any of his work (e.g., reports, opinions, analyses, etc.) in the prosecution of the case against defendant would prove an ineffective remedy to protect defendants confidences and work product and to ensure a fair trial.

The evidence was also sufficient to warrant disqualification of Allen and any other attorney in the district attorneys office who was privy to any reports or information furnished by DeHaan. The trial court implicitly found that Lukehart communicated confidential information to DeHaan. Shadow Traffic indicates such a communication gives rise to a rebuttable presumption that confidential information was disclosed by DeHaan to the prosecution. The only evidence attempting to rebut the presumption was DeHaans declaration stating that he had no notes or recollection of the content of his conversation with Lukehart, and therefore could not have communicated any of defendants confidential information to Allen, and Allens declaration that DeHaan has not informed me of any information the defense may have provided to him.

The presumption is a rule by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversarys attorneys and legal staff. (ShadowTraffic, supra, 24 Cal.App.4th at 1085.) Declarations denying that any confidential information was disclosed by the expert to the attorney are not dispositive. To paraphrase Shadow Traffic, Even assuming that [Allen] did not expressly ask [DeHaan] about the contents of his discussion with [Lukehart] and that [DeHaan] did not explicitly disclose the information to [Allen], [Allen] could still obtain the benefit of the information because the data, consciously or unconsciously, could shape or affect the analysis and advice [DeHaan] rendered to [Allen]. (Id. at p. 1086.) Accordingly, to the extent the trial courts order disqualified Allen and any other deputy district attorney exposed to DeHaans reports or communications, the trial court did not abuse its discretion.

The disqualification of the entire district attorneys office, however, is not supported by substantial evidence. The justifications for disqualifying an entire law firm that apply in civil cases are inapplicable to disqualification of the district attorneys office in a criminal case. In a civil case, it is assumed there are a number of qualified law firms available other than the one to be replaced, and the interest of the client is largely in avoiding inconvenience and duplicative expense. (People ex rel. Younger v. Superior Court (1978) 86 Cal.App.3d 180, 203.) In a criminal case, although the Attorney General is available to prosecute the case, [t]he district attorney is the exclusive statutorily designated public prosecutor. He is vested with important discretionary powers in relation to the prosecution of public offenses both before and after the jurisdiction of the court has been invoked. [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. (Id. at pp. 203-204.)

The evidence does not support the existence of a conflict of interest involving the entire district attorneys office; it does not demonstrate a reasonable possibility that all of the attorneys in the district attorneys office may not exercise [their] discretionary function in an evenhanded manner. (Conner, supra, 34 Cal.3d at p. 148.) There was no showing of widespread communication of confidential information, or of information or reports provided by DeHaan, to other attorneys within the district attorneys office. There is an adequate alternative to disqualification of the entire district attorneys office. As in Merritt, Millsap, and Hernandez, disqualification may be limited to those involved in the situation that created the conflict of interest. In this case, disqualification may be limited to Allen and any other attorneys in the district attorneys office who have been exposed to DeHaans work or communications. Use of DeHaans work, including reports or other writings, in the prosecution of the case against defendant may be barred. The new prosecutor or prosecutors assigned to the case may be isolated from the disqualified persons and prohibited from communicating with them in order to avoid any further taint from exposure to confidential information.

The evidence does not demonstrate a conflict of interest involving the entire district attorneys office that would render it unlikely defendant would receive a fair trial if the case were prosecuted by a deputy district attorney who was not exposed to any of DeHaans work or theories. Consequently, it was an abuse of the trial courts discretion to disqualify the entire district attorneys office from the prosecution of this case.

III. Deputy District Attorney as Witness

It is well settled that merely because an employee may be a potential witness and credibility of that witness may have to be argued by the prosecuting attorney, there is no sufficient basis for that reason alone to recuse an entire prosecutorial office. [Citation.] This rule has been applied even to cases wherein one or more deputy district attorneys are witnesses. [Citation.] (Merritt, supra, 19 Cal.App.4th at p. 1580.) Disqualification of a deputy district attorney who may become a witness from acting as prosecutor in the case may be justified because the defense attorneys would face the awkward task of arguing [her] credibility to the jury, and because the jury might find it difficult to separate her roles as prosecutor and witness. (People v. Hernandez (2003) 30 Cal.4th 835, 853-854.) Disqualification of the entire district attorneys office, however, is justified only if the deputy district attorneys role as a witness creates a conflict of interest that would render it unlikely that the defendant would receive a fair trial [citation] if the district attorney's office handled the prosecution. (Id. at p. 854.)

In defendants motion to disqualify, defense counsel asserted he received a report that indicated Deputy District Attorney Hartnett had interviewed Ortiz without an investigator present and made herself a potential witness. The attached report indicates Hartnett was the prosecutor in an earlier domestic violence case against defendant and she spoke with Ortiz, the victim, before Ortiz testified at the preliminary hearing in that case. Hartnett stated Ortiz seemed reluctant to speak with her, and at one point became emotional and said she did not want to testify. Defendants motion argued that a prosecutor may not act as both advocate and witness, then simply asserted that, the prosecutor, Ms. Allen, is planning to call as a witness one of her colleagues, Ms. Hartnett, a fellow prosecutor who works in the same Domestic Violence section of the District Attorneys office. The opposition asserted that the People might call Hartnett to testify about Ortizs reluctance to testify against defendant in the prior case, which it characterized as a minor point in the trial.

There was no substantial evidence before the trial court to support a finding that, if Hartnett became a witness at trial, it would create a conflict of interest that would render it unlikely that the defendant would receive a fair trial ( 1424, subd. (a)(1)) if the district attorneys office handled the prosecution. The evidence does not show any potential that Hartnett will become both prosecutor and a witness in this case. She is not prosecuting this case; if she becomes a witness that will be her only role in the case. There is nothing in the record to indicate Hartnetts conversation with Ortiz was a traumatic experience that would influence or prejudice other prosecutors against defendant. The record does not indicate Hartnett even spoke with any other attorney in the district attorneys office about her conversation with Ortiz. There is nothing to indicate that Hartnetts testimony to a single conversation with Ortiz, in which Ortiz expressed reluctance to testify against defendant in a domestic violence case, would create a conflict of interest, i.e., a reasonable possibility that the DAs office may not exercise its discretionary function in an evenhanded manner, or that it would affect the fairness of his trial. Consequently, the order disqualifying the entire district attorneys office is not justified by the possibility that Hartnett might be called as a witness at trial.

DISPOSITION

The order of disqualification is modified to disqualify only DeHaan, Allen, and any other attorney in the district attorneys office who reviewed or was otherwise exposed to DeHaans reports, theories or work on this case. As so modified, the order is affirmed. On remand, the trial court is directed to make all appropriate orders to ensure that DeHaans reports and other work are not used in the prosecution of the case against defendant and that the new prosecutor or prosecutors and others involved in the prosecution of the case in the future do not communicate with DeHaan, Allen or any other disqualified attorney about this case.

_____________________

HILL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

DAWSON, J.

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^[1] The facts surrounding the alleged offense are taken from the transcript of the preliminary hearing.

^[2] All further statutory references are to the Penal Code, unless otherwise indicated.