Possibly, but a conflict by itself is not enough. Penal Code section 1424 requires evidence of a conflict that makes it unlikely the defendant will receive fair treatment. A dispute with one ruling, a prosecutor’s public position, or an appearance of impropriety does not automatically disqualify the prosecutor or the office. In People v. Eubanks, the California Supreme Court explained the two-part inquiry: a conflict must exist, and it must be serious enough to make fair treatment unlikely. Penal Code section 1424; People v. Eubanks.
Identify who has the alleged conflict
Start with specific facts: who has a financial, personal, or institutional stake; what charging, plea, discovery, or sentencing discretion could be affected; and what records or witnesses support that connection. An institutional interest can be relevant, but it does not alone establish that fair treatment is unlikely. A dated document or competent witness account is more useful than a general allegation about office policy or adversarial conduct.
The statute sets different notice steps for a district attorney and a city prosecutor. A motion to disqualify a district attorney must be served on the district attorney and Attorney General at least 10 court days before the hearing. The notice must state the supporting facts and legal authorities and be supported by affidavits from witnesses competent to testify to those facts. The judge reviews the affidavits and decides whether an evidentiary hearing is needed.
A motion involving a city attorney or city prosecutor must be served on that official and the district attorney at least 10 court days before the hearing, with the relevant facts and legal authorities. If both the city prosecutor and district attorney are challenged, the motions must be separate. The district attorney may appear and submit a written opinion on a city-prosecutor motion. Penal Code section 1424.
Timing and possible result
If a district-attorney disqualification motion is brought at or before the preliminary hearing, the statute limits a later trial-court renewal based on facts that were raised or could have been raised in the first motion. A district-attorney recusal order is stayed during authorized writ or appellate review. A city-prosecutor recusal order is stayed pending the authorized appeal. These rules make it important to identify the relevant facts, prosecutor, and case stage before filing.
The process concerns who may perform prosecutorial duties in a particular matter; it does not itself dismiss charges or guarantee a different result. It is separate from challenging a judge and from a Racial Justice Act claim. The Law Offices of David S. Chesley handles California criminal pretrial matters. Call (800) 755-5174 to discuss the record and proper procedure.