PEOPLE v. FREEMAN

Filed 2/5/07

CERTIFIED FOR PARTIAL PUBLICATION^[1]

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART I………

Additionally, although the disqualification statute allows the parties to waive some statutory grounds for disqualification, " personal bias or prejudice concerning a party" may never be waived.  (§ 170.3, subd. (b)(2)(A).)  This reflects the fundamental nature of the right and necessity for adjudication by an unbiased trial judge.  Moreover, even as to matters that may be waived, the waivers are subject to strict statutory requirements and are not effective unless the parties and their attorneys agree in writing to the judge's participation and the writing is included in the record.  (§ 170.3, subd. (b)(1).)  Even if we were to apply the disqualification waiver standard to permit reinstatement of a recused judge, this record is devoid of a proper waiver.  Apparently recognizing this, the Attorney General does not contend that the Freeman's withdrawal of her disqualification motion can be construed as a proper waiver of her right to challenge Judge O'Neill's reinstatement based on his earlier recusal for personal bias.

            The fact that Judge O'Neill had previously recused himself for bias invokes issues of fundamental fairness once he was reinstated into the case, regardless whether the prior recusal was based on an appearance of, or actual, bias.  Even if Judge O'Neill subjectively viewed his recusal as based on an appearance of bias, the circumstances giving rise to the recusal--including the long-standing friendship, the serious nature of the suspected activity directed at his friend, and the similarity of the conduct underlying the pending charges and the Judge Elias stalking rumors--are consistent with what one would typically associate with actual bias.  Under these circumstances, involving a protesting defendant and a likely public perception of actual bias, the reinstatement of the disqualified judge created a serious likelihood of undermining public confidence in an unbiased judiciary.  This strikes at the heart of the integrity of our judicial system and creates far more than a " mere" appearance of bias, thus implicating constitutional due process concerns.

            We conclude that Judge O'Neill's December 2002 recusal ruling barred him from presiding over Freeman's trial.  Further, under the particular circumstances presented here, we conclude his erroneous reinstatement rises to the level of a constitutional violation requiring reversal.  Maintaining public confidence in an impartial judiciary is a core value of our judicial system and is necessary to preserve the integrity of the judicial process.  This value was denigrated when the judge, previously disqualified on bias grounds, presided over the trial notwithstanding the repeated protests of the defendant and circumstances reflecting a persistent appearance of bias.  The reinstatement of the disqualified judge in this case sufficiently impacts the public perception of judicial neutrality so as to constitute structural error requiring reversal.  (See Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247; Hernandez v. Paicius, supra, 109 Cal.App.4th at pp. 462-463.)

D.  Freeman's Petition for Writ of Habeas Corpus Alleging Appellate Counsel's Ineffective Representation on the Issue of Judicial Bias

            After the appellate briefing in this case was completed, Freeman filed an in pro. per. petition for writ of habeas corpus alleging that appellate counsel incompetently argued the judicial bias issue on appeal.  Freeman asserts her appellate counsel was ineffective because he failed to raise the issue that the entire San Diego County Superior Court bench had been recused.  Given our reversal of the judgment, we need not consider this issue, and accordingly deny the writ.  We do note, however, that our holding extends only to Judge O'Neill.  The qualifications of any other San Diego Superior Court judge to preside over any retrial is not before us in this appeal.

II.  Issues Pertinent to Potential Retrial

            Given our reversal, we need not address Freeman's arguments regarding instructional error and the erroneous admission of evidence.  However, several of her arguments raise issues that impact the district attorney's right to retry her case.  Accordingly, we address Freeman's contentions that (1) the trial court erred in denying her motion for acquittal of the various charged offenses, and (2) she could not be properly charged with solicitation to commit kidnapping.  We conclude there was substantial evidence to support a finding of guilt on the charged offenses, and that the solicitation to commit kidnapping charge was proper.  Accordingly, there is no bar to retrial on the charged counts.  (See In re Cruz (2003) 104 Cal.App.4th 1339, 1344-1345.) 

A.  Facts

Protective Custody

            On the afternoon of September 10, 2002, Freeman's daughter, E., age 14, called 911.  She reported Freeman had hit her and thrown her against walls, such incidents had been happening all her life, and recently the frequency of the incidents had been increasing.  E. explained that her mother home-schooled her and would lock her in the trailer where they resided.  E. stated that about one hour earlier, her mother " grabbed [E.'s] head,  .  .  .  beat [it] against the wall and  .  .  .  hit  .  .  .  and yelled at [E.]  .  .  .  "   E. was crying and afraid that when her mother returned home, " it [was going] to be even worse."   E. told the dispatcher she had called her aunt and her aunt advised her to call 911.

            About 50 minutes after the 911 call, Deputy Sheriff Margaret Barone spoke to E. on the phone.  E. sounded very upset and frightened.  About 15 minutes later, Deputy Barone arrived at E.'s residence.  E. appeared terrified; her voice was cracking and her hands were shaking.  Deputy Barone observed large welts on E.'s thigh and calf, bruising on her hip, and minor scratches on her arm.  E. complained of pain to her forehead and shoulder.

            E. told Deputy Barone that when she was sleeping on the couch that day, Freeman screamed and yelled at her to get up.  Freeman kneed E. and started hitting and kicking her.  During the struggle Freeman pushed E. and E.'s forehead hit the wall.  When E. landed on the floor, her mother continued to kick her.  E. managed to shove her mother off her; E. then ran out of the trailer and hid behind some bins.  E. heard Freeman drive away, and then quickly drive back.  Freeman yelled at E. to come out, but E. was too afraid.  E. peeked around a corner of the bins and was terrified of the look on her mother's face.

            E. told Deputy Barone that she first recalled being hit by her mother when she was three years old and she remembered the police being summoned about seven years ago. She stated the abuse had become progressively worse during the past year and had been almost a daily occurrence during the past six months.  E. was concerned about what was going to happen when her mother returned home.  Based on E.'s injuries, the potential for violence when Freeman returned, and E.'s level of fear, Deputy Barone took E. into protective custody.  Deputy Barone expedited their departure without gathering any of E.'s belongings, because E. was fearful and in a rush to leave.  As they drove away E. crouched down on the floor of the police vehicle, stating she did not want her mother to see her.

            E. was taken to Green Oaks Ranch, a temporary placement facility.  Nurse practitioner Lorrie York observed bruises on E.'s hip, thigh, and calf, and scratches on her back, arm and leg.

Foster Home Placement

            On September 17, 2002, Child Protective Services (CPS) placed E. in the home of foster parents Vanessa Franco and Diana Gonzalez.  Typically, a parent who is permitted unsupervised visitation is given the foster parents' phone number to arrange visitation.  However, because of the protective issues, E.'s placement was confidential and Freeman was not given the foster parents' phone number.  Franco was told that Freeman could have contact only with the social worker, and the social worker would convey any necessary information about E. to Franco.

            When Franco met E., E. was very fearful and intimidated by everything around her.  As Franco and E. were driving to eat lunch on the day of their first meeting, E. sank very low in her seat, almost to the floorboards, so that her head could not be seen above the window.  Franco tried to reassure E. that her mother was not following her.  While living in Franco's home, Franco described E. as suffering from " a beaten dog syndrome" and noted she would jump if she heard a loud noise and would flinch if spoken to in a high tone of voice.  E. told Gonzalez and Franco that her mother had physically assaulted and tormented her for years, including kicking her, chasing her with a knife, pushing her into a brick wall, putting feces on her hairbrush, and threatening to kill her and make it look like suicide.  E. stated her mother had also threatened other people with guns.

Solicitation to Commit Kidnapping

            On September 3, 2002, Kimberly Oakley, who was contemplating divorce, hired Freeman, who is an attorney, to represent her.  When Oakley next spoke with Freeman on September 15, 2002, Freeman seemed different.  Contrary to her behavior at their first meeting, Freeman now rambled and failed to respond to Oakley's divorce-related questions.  Freeman told Oakley that her daughter had been unjustly removed by CPS, and that she was desperately trying to locate E.'s foster home.  Freeman explained that she was concerned for her daughter because of her daughter's undiagnosed schizophrenia.  Oakley, who had a daughter with a drug addiction problem in a residential treatment program, was sympathetic.  Thereafter, Freeman frequently called Oakley to " unload" about the situation, and Oakley offered to help Freeman.

            During one of these conversations in September 2002, Freeman told Oakley that E. and her foster family were attending Calvary Chapel in Escondido, which was the same church Oakley attended.  Accordingly to Oakley, Freeman repeatedly pressed her to speak to the Calvary Chapel youth pastor to find out information about E.

            In early October 2002, Freeman told Oakley that she had " a couple of plans" to " steal" E. from the foster family and stated she always carried large sums of cash with her so she could take E. across the Canadian or Mexican border.  Freeman told Oakley that one option she had contemplated was the use of an " escort" from a residential drug treatment program to take E.  Oakley explained to Freeman that this service, which was used to remove combative, uncooperative teens from their homes, could not be used to take E. from the foster family, but Freeman did not appear to understand this.

            Freeman also repeatedly asked Oakley to " steal" E. from the foster family, stating she had a couple of ideas how to accomplish this.  Freeman suggested a plan where Freeman would wait in the car and Oakley would try to lure E. out of the foster home by telling E. how much Freeman loved her.  Freeman was sure E. would come over and see Freeman in the car, and then Freeman could "   'take off'  " with her.  Freeman also proposed that Oakley go to E.'s YMCA after-school program while Freeman waited in the car.  Freeman opined that when Oakley told E. how much her mother loved and missed her, E. would agree to walk over to Freeman's car; then Freeman "   'would take [E.] and get her in the car and take off for the Canadian border or the Mexican border.'  "   Oakley refused Freeman's requests to carry out these plans.  When Oakley refused, Freeman was angry with Oakley and told her she had another friend who she would ask to take E.

            In late October, notwithstanding Oakley's previous refusals, Freeman continued to press Oakley to help her get E.  Freeman told Oakley she "   'really need[ed]'  " Oakley's help and pointed out that it would be easy for Oakley to hide E. at Oakley's rural, gated home.  Oakley continued to refuse her requests, telling Freeman her idea to take E. was " absolutely ludicrous."

October 11 Residential Burglary

            Around 2:00 or 3:00 p.m. on October 11, 2002, Freeman called Oakley and told her she had broken into the office of the high school E. was attending and located E.'s foster home address on the school's computer system.  Freeman related that she had been spying on the foster family for " quite some time" and she was upset about the way they were handling E.  Freeman told Oakley she would rent various cars and disguise herself in different outfits; she watched the foster family from the parking lot in their apartment complex; and she followed them when they went places.

            At about 8:30 p.m. on October 11, 2002, Freeman again called Oakley.  Freeman was hysterical because E. had not returned to the foster parents' home.  Freeman explained that she was concerned for her daughter's safety because she had been watching the apartment for a good part of the day; E. had not returned home at her typical time; and E. still had not returned home.  Freeman begged Oakley to go with her to watch the apartment.  Freeman stated E. needed medication; no one had diagnosed E. with schizophrenia; no one could handle E. correctly; and E.'s life was being jeopardized.  Oakley felt sorry for Freeman and agreed to accompany her.

            Around 9:30 p.m., Freeman picked up Oakley at Oakley's residence.  Freeman drove at a dangerously fast speed to the complex; she was hysterical and screeching that her daughter was in danger and she had to get her daughter away from the foster parents.  Freeman told Oakley that she had spent several nights and days in the parking lot watching her daughter and the foster parents, and that she had tried that day to break into the foster parents' apartment.

            Freeman and Oakley watched the apartment for about two hours, and it did not appear that anyone was at home.  Oakley told Freeman it was time to leave, and tried to reassure Freeman that her daughter was all right.  Freeman insisted she needed to "   'find out what's going on here'  " and she had to see if E. was "   'okay.'  "   Freeman left the vehicle and went to a mini-mart where she bought a flashlight and batteries.  After Freeman returned to the car and Oakley again tried to persuade her that they should leave and her daughter was fine, Freeman got out of the car and said, "   'I don't care.  Why should I take this anymore?'  "   Freeman got the flashlight and a camera and told Oakley she was going inside the foster parents' apartment.

            Oakley followed Freeman and tried to dissuade her from entering the apartment.  Oakley saw Freeman go over a back wall and enter the apartment through a sliding glass door that had apparently been left open.  Oakley saw the camera's flash go off several times and heard drawers being opened and closed.  Freeman was in the apartment for about seven or eight minutes.  When she returned, Freeman was in a manic-type state.  She appeared elated that she had taken pictures; told Oakley that the foster mothers slept together; and stated she had found an address book although she did not have the book with her.  Freeman appeared content that she had obtained what she had thought she would get in the apartment, and they left.

            On October 12, 2002, Gonzalez noticed that their front door lock had been tampered with, but she did not notice any other disturbance at their apartment.  About one month later, Franco and Gonzalez were informed that Freeman may have broken into their apartment.

October 19 Incident

            Franco and Gonzalez first became aware that someone was following them on October 19, 2002.  On this occasion, Franco and Gonzalez drove with E. and their other foster daughter to Los Angeles to visit Franco's grandmother.  They first stopped at Franco's mother's home in Oceanside, and then started their trip north at about 9:30 or 10:00 p.m.  As Franco was driving on the freeway to her grandmother's house, she noticed a vehicle that seemed to have been following too closely behind her for some time.  Franco changed her driving to see if the vehicle would pass them (i.e., slowing down, changing lanes), but the vehicle stayed behind them no matter what she did.  Franco tried to lose the vehicle by accelerating to about 75 or 80 miles per hour and changing lanes, but the vehicle continued to follow them.  The driver of the vehicle that was following them made several dangerous maneuvers to keep up with Franco, including cutting off vehicles in other lanes and driving within inches of Franco's back bumper.  At one point Franco accelerated to 95 miles per hour in her unsuccessful attempts to evade the vehicle.

            After the vehicle had been following them for about one-half hour and Franco saw that traffic up ahead was congested, Franco decided to exit the freeway to try to lose the vehicle.  The vehicle followed her off the freeway, and at one point its headlights were turned off while it continued to follow them.  Franco drove about 40 miles per hour on the surface streets trying to get away from the vehicle, and accidentally ended up on a dark, dead-end residential street with the vehicle still behind her.  As Franco turned around in a driveway, the other vehicle stopped across the street with its headlights still turned off.  Franco drove back to the freeway at a speed of about 45 to 50 miles per hour, with the vehicle still following her.  Once on the freeway, the driver of the pursuing vehicle continued to drive with the lights off.  Franco finally managed to lose the vehicle by quickly cutting across traffic lanes and exiting on a left-side off-ramp.

            During the incident, Franco was in a " complete panic" and her heart was pounding " a hundred miles a minute."   Gonzalez was " [f]rightened to death."   The two children were screaming hysterically in the back seat.  Because of the speeds she was driving while trying to evade the car, Franco feared for the safety of the occupants of her car and other cars, but explained she was in " survival mode" and could think only of " get[ting] away."  

            Franco estimated that the entire incident lasted for about one hour.  Gonzalez observed that the vehicle following them was a dark grayish-blue Ford Windstar minivan.  At one point when the van was beside Franco's car, Gonzalez saw that the driver was light-skinned, heavyset, and appeared to be wearing a disguise, including a wig, dark glasses, and a mustache.  During the incident, E. stated the driver was probably her mother who was " trying to get her."

            Freeman admitted to Oakley that she had followed the foster parents on a Los Angeles freeway.  Freeman told Oakley she had rented a car, dressed up in alternate clothing hoping the foster family would not recognize her, followed the family to a residence in Oceanside, and then chased them into a Los Angeles area.  Freeman was " really proud" that she had chased them, and told Oakley she was glad that she " really shook them up" and " really scared them."   Freeman stated she stared at them and gave one of the foster mothers a dirty look when she was driving beside her. 

October 23 Incident

            On October 23, 2002, another incident occurred.  Around 10:15 p.m., while Gonzalez was driving with E. from Franco's mother's residence to their home, Gonzalez noticed that a gold Ford Explorer was following them.  The vehicle continued to follow Gonzalez as she tried to evade it.  Rather than going home, Gonzalez turned on a street, pulled over, and waited 10 minutes.  She did not see the Ford Explorer, so she drove to their apartment.  As they were walking towards their apartment, E. saw the gold Ford Explorer coming into the parking entrance of the complex.  Gonzalez did not think it was safe to go to their apartment, so she and E. returned to their car.  The Ford Explorer then turned around to leave the complex.  Gonzalez, wanting to know who was following them, followed the Ford Explorer and had E. write down the license plate number, and the estimated year, make, and model of the vehicle.  Gonzalez drove up next to the Ford Explorer when traffic slowed because of an accident.  The driver tried to cover her face, but E. began crying and screaming, " That's my mother.  How could she do this to me?"   E. put her seat back so that she could not see Freeman.  Gonzalez looked over at Freeman, and Freeman looked at Gonzalez " in this evil manner" as if she wanted to hurt Gonzalez.

            Gonzalez did not return home, but drove to Franco's mother's house.  When they arrived at Franco's mother's home, Gonzalez was hyperventilating and crying and E. was crying hysterically.  At this point, Franco and Gonzalez called the police and CPS.  Because of the incident, the next day Gonzalez stayed home from work and E. did not go to school, and E. had an emergency session with her therapist.  Franco and Gonzalez changed the locks on their door, put extra locks on the sliding doors and windows, and got a private mail box.

November 3 Incident

            On November 3, 2002, between 6:00 and 7:00 p.m., Gonzalez noticed a white Ford Windstar van with tinted windows parked directly across from their apartment.  Gonzalez told E. to stay in the apartment.  Gonzalez grabbed her phone and stepped outside to see if anyone was in the van.  She saw a head moving in the back of the van, but she could not see enough to identify the person.  When she returned to her apartment, the van sped off.  In spite of the extra security measures at her apartment, Gonzalez still felt frightened. 

            In early November 2002, during one of Oakley's meetings with Freeman, Oakley saw that Freeman was driving a white minivan.  Freeman told Oakley that she had rented the minivan and that it was one of the cars she had been using to spy on the foster family.

Perfume Incidents

            On one occasion, Freeman sent E. a filthy jacket that smelled like Tea Rose perfume.  On another occasion, after Gonzalez left her car unlocked while picking E. up from school, the car smelled like Tea Rose perfume.  E. told Gonzalez that the perfume smelled like her mother's perfume.  Gonzalez felt scared, thinking that Freeman would " go to any extent to do something to [Gonzalez]."   Freeman told Oakley that she had doused the jacket and sprayed the foster parents' car with her perfume because she wanted her daughter to smell her presence.

Oakley's Reporting of Freeman to CPS on November 10

            On November 8, 2002, Freeman called Oakley.  Freeman was crying and hysterical and threatening to kill herself.  Freeman told Oakley that she had a lot of work to do in E.'s dependency case and that to win her case she had to prove E. was incompetent.  Freeman asked Oakley to go with her to the law library to help her sift through the information.  Oakley agreed to help Freeman in exchange for a reduction in Freeman's fees.

            On November 9, 2002, Oakley accompanied Freeman to the law library.  During this meeting, Freeman's mood shifted at different times from elated and happy to sullen and angry.  Freeman " threw a ton of papers" from E.'s dependency case in front of Oakley and told her to read them.  As Oakley started reading the papers depicting the reasons E. had been removed from Freeman's custody, Oakley realized that Freeman was " a complete con artist, that nothing she had ever told [Oakley] was ever true about her daughter."   When Oakley questioned Freeman about the allegations in the dependency reports, Freeman acknowledged that she " vaguely remembered" hitting E. on the hips and slamming E. into a wall; that she was holding a knife during one of the reported incidents; and that she pretended to wipe a piece of toilet paper with feces on it on E.'s hair brush.  When Oakley suggested that Freeman admit to some of the allegations and get counseling, Freeman became angry, stating that she could lose her law license and that she had to prove E. was incompetent.

            On November 10, 2002, Oakley called CPS to advise E.'s social worker that she was concerned for E.'s safety.  On November 14, 2002, E. was removed from Franco and Gonzalez's foster home.

            On December 6, 2002, the police searched Freeman's residence and car.  The police developed rolls of film found in Freeman's residence, and showed the photographs to Gonzalez and Franco.  The photographs depict Gonzalez, the open front door of Franco's and Gonzalez's residence, their other foster daughter, Franco's place of employment and car, and Franco's mother's residence and car.

Foster Parents' Reactions to the Stalking

            Because of the stalking incidents, Gonzalez and Franco felt their life was completely changed.  They felt fearful and constantly on guard.  Gonzalez had trouble sleeping and had nightmares.  Franco felt vulnerable, helpless, and " completely violated."   She was also concerned for the safety of her mother and other family members.  During the time when they did not know who was following them, Franco was frightened because she had no idea what the person's intentions were.  Once the stalker was identified as Freeman, Franco was frightened because she did not know what Freeman was capable of, particularly given E.'s accounts of her mother's previous violent behavior.

            The jury convicted Freeman of two counts of stalking (one count per foster parent); residential burglary; solicitation to commit kidnapping; and misdemeanor child endangerment and battery of E.  She received a six-year sentence.

B.  Motion for Acquittal of Stalking

            Freeman argues the trial court erred at the close of the prosecution's case-in-chief in denying her Penal Code^[2] section 1118.1 motion for acquittal of the two stalking counts (one involving Franco and the other involving Gonzalez).

            A trial court's evaluation of a motion for acquittal is governed by the same substantial evidence test used in an appellate challenge to the sufficiency of the evidence, i.e., the trial court determines " whether from the evidence then in the record, including reasonable inferences to be drawn therefrom, there is substantial evidence of every element of the offense charged."   (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 89.)  If the record can reasonably support a finding of guilt, a motion for acquittal must be denied even if the record might also justify a contrary finding.  (See People v. Holt (1997) 15 Cal.4th 619, 668.)

            At the time Freeman engaged in the alleged offenses, the crime of stalking was defined as committed by " [a]ny person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family  .  .  .  ."   (Former §  646.9, subd. (a).)^[3]  The elements of the stalking offense were (1) repeatedly following or harassing another person, (2) making a credible threat, (3)

intent to place the person in reasonable fear for the safety of the person or his or her family, and (4) causing actual fear.  (See People v. Norman (1999) 75 Cal.App.4th 1234, 1239; People v. Carron (1995) 37 Cal.App.4th 1230, 1238-1239.)

            Section 646.9, subdivision (e) defined harassment as " a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.  This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person."   Course of conduct was defined as " a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of 'course of conduct.'  "   (§  646.9, subd. (f).)  A credible threat was defined as a verbal or written threat, or a threat " implied by a pattern of conduct" made with the intent to place the victim in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause such fear.  (§ 646.9, subd. (g).)  The fear suffered by the victim need not be experienced simultaneously with the commission of the act designed to generate the fear; thus, stalking is committed even when the victim learns of the defendant's conduct some time after its occurrence.  (People v. Norman, supra, 75 Cal.App.4th at pp. 1239-1241.)

            Freeman argues:  (1) her conduct of following E.'s foster parents served the legitimate purpose of furthering her fundamental right to parent; (2) there was no evidence she issued a credible threat with the intent to cause fear; and (3) there was no evidence that a reasonable person would have suffered substantial emotional distress or that the foster parents actually suffered such distress.

TO BE CONTINUED AS PART  III………

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^[1]           Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II.

^[2]           Subsequent statutory references are to the Penal Code unless otherwise specified.

^[3]           After Freeman committed the alleged offenses in 2002, the language of section 646.9 was amended effective January 2003, apparently to clarify some of the elements.  Subsequent references to section 646.9 are to the former version effective in 2002.