Kain v. Municipal Court

Opinion

HINDIN, J.

*

This matter arises out of the prosecution of appellant, Stanley Kain, on 35 counts alleging various sex crimes committed against his natural daughter and his stepdaughter, both under the age of 14 years. The Ventura County District Attorney was the prosecutor in the criminal matter and that office had also been appointed, pursuant to Welfare and Institutions Code section 351, to represent Kain’s children in a juvenile dependency action based on allegations of an unfit home (Welf. & Inst. Code, § 300, subd. (d)).

Kain filed a motion in the municipal court to disqualify the entire Ventura County District Attorney’s office in the criminal prosecution,

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on the basis of alleged bias and conflict of interest. That motion was denied, and Kain filed a petition for writ of mandate with the superior court seeking reversal of that order. This appeal followed the superior court’s denial of Kain’s petition.

On this appeal Kain contends:

1. That the district attorney’s dual representation of the minor children in the juvenile proceeding and of the state in the criminal proceeding produces a conflict of interest.

2. That the district attorney’s representation of his daughters in the juvenile proceeding would restrict his right to discovery in the criminal action, and thus impinge upon his constitutional right to effective counsel and to confront witnesses against him.

Penal Code section 1424 provides in pertinent part: “The motion [to disqualify a district attorney from prosecuting a criminal case] shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” In support of his recusal motion the only evidence of conflict of interest, other than the fact of the district attorney’s dual representation, presented by Kain was as follows: In Kain’s trial counsel’s declaration in support of the motion, it is stated that Deputy Donald Coleman represented Kain’s minor children in the juvenile proceeding. Deputy Matt Hardy was the prosecutor in the criminal case. Kain’s counsel stated that when he discussed the possibility of requesting a continuance of the preliminary hearing with Mr. Hardy, the prosecutor indicated that he knew of the existence of the juvenile proceeding and requested that the preliminary hearing be set at a time within a few days of the juvenile court hearing for the benefit of the minor children who would be witnesses.