PEOPLE v. FREEMAN

Filed 2/5/07

CERTIFIED FOR PARTIAL PUBLICATION^[1]

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            Consolidated appeal from a judgment of the Superior Court, Robert F. O'Neill, Judge, and petitions for writ of habeas corpus.  Judgment reversed, petitions denied.

            Carl M. Hancock for Petitioner and Appellant in nos. D048111 and D046394.

            Marilyn Kaye Freeman, in pro. per., for petitioner in no. D049238.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

            Marilyn Freeman challenges a judgment convicting her of solicitation to commit kidnapping, residential burglary, two counts of stalking, and misdemeanor child endangerment and battery.  The offenses arose from Freeman's assaultive conduct towards her teenage daughter, and actions Freeman took against her daughter's foster parents.

            Freeman argues the judgment should be reversed because the Superior Court judge who presided over her trial had previously disqualified himself and was later reinstated into the case.  We agree with Freeman's contention.  In pretrial proceedings, the judge recused himself based on his friendship with a judicial colleague who Freeman was rumored to be stalking.  When the prosecution later notified the superior court that it had found no evidence to substantiate these stalking rumors, the supervising judge assigned the case to the disqualified judge for trial, essentially retracting the prior disqualification order.  The disqualified judge accepted the assignment over Freeman's objection.

            Freeman did not file a petition for writ of mandate at the time of the reinstatement.  Thus, she may not obtain appellate review of error under California's statutory disqualification scheme, but she is entitled to review for constitutional due process error.  For reasons we shall explain in the published portion of this opinion, we conclude that fundamental due process error occurred when the judge, previously recused for bias, was reinstated into the case notwithstanding the repeated protests of the defendant and under circumstances reflecting a persistent appearance of bias.  The judge's reinstatement created a serious likelihood of undermining public confidence in an impartial judiciary, and created an error of constitutional dimension.  Because the error affected the integrity of the judicial process, reversal is required.

            In the unpublished portion of this opinion, we reject Freeman's arguments that the trial court erred in denying her motions for acquittal and that she could not properly be charged with solicitation to commit kidnapping.  Thus, there is no bar to retrial on the charged counts.  We also deny Freeman's two petitions for writ of habeas corpus that raise issues related to those presented in her appeal.

FACTUAL AND PROCEDURAL BACKGROUND

            In the published portion of this opinion addressing Freeman's challenge to the reinstatement of the disqualified judge, we need only briefly summarize the facts underlying the offenses.  In accord with our standard of review on appeal, we present the facts in the manner most favorable to the judgment.  (People v. Dayan (1995) 34 Cal.App.4th 707, 709.)

            On September 10, 2002, Freeman's 14-year-old daughter (E.) called the police reporting that her mother had assaulted her that day and had been doing so on a regular basis.  E. was removed from her home and placed in a foster home.  Freeman, an attorney, then engaged in an aggressive campaign to disrupt the foster placement and terrorize her daughter's foster parents in a misguided attempt to monitor and reunite with her daughter.  Freeman solicited one of her clients to kidnap E. from the foster parents, burglarized the foster parents' home, chased the foster parents at high speeds on the freeway, followed them in her car on city streets, glared at them " in [an] evil manner" when she was spotted, spied on them at their residence and elsewhere, took pictures of them, and sprayed her perfume in their vehicle.

            The jury found Freeman guilty of solicitation to commit kidnapping, residential burglary, stalking, and misdemeanor child endangerment and battery.  She was sentenced to prison for six years.

DISCUSSION

I.  Challenge to Reinstatement of Disqualified Judge

            Freeman asserts Superior Court Judge Robert O'Neill, who had disqualified himself for bias during pretrial proceedings, was erroneously reinstated to preside over her trial.

A.  Background

            On December 19, 2002, after Freeman was arrested and taken into custody, Judge O'Neill presided over a readiness conference.  Before the hearing commenced, defense counsel advised Judge O'Neill that Freeman wanted new appointed counsel and asked for a Marsden^[2] hearing.  After considering Freeman's and her counsel's input, the trial court granted the request for new counsel.

            At the conclusion of the Marsden hearing, Freeman, who was still in custody,

requested that Judge O'Neill conduct a bail review hearing.  Freeman stated that she wanted to request house arrest because there were " rumors through the back hallways that [she] was stalking" another Superior Court judge, Judge Harry Elias.  The stalking rumors apparently arose from matters observed on Freeman's computer that had been seized by the authorities in connection with the current case.

            Judge O'Neill stated that he had heard about the allegation, and explained that he had known Judge Elias for 23 years, they had worked together in the district attorney's office, and they were friends.  Because of his relationship with Judge Elias, Judge O'Neill decided to " recus[e] [himself]" from the bail issue.  Freeman informed Judge O'Neill that in another proceeding Judge Elias " made it very clear he [did not] think there [was] any substance to [the stalking rumors]."   Notwithstanding this representation by Freeman, Judge O'Neill reiterated he was not " the person [who] should hear" Freeman's bail motion.  Further, Judge O'Neill suggested that given the allegations concerning Judge Elias, Freeman might want to discuss with her counsel whether the bail issue should be considered by a judge who was not a member of the San Diego County Superior Court bench.  

            At a rescheduled readiness conference on January 6, 2003, Freeman's new counsel advised Judge O'Neill that Supervising Criminal Judge Peter Deddeh had requested that all further dates be set in his department so that the case could be assigned to an " independent retired judge."   Judge O'Neill complied and set the subsequent proceedings to be heard in Judge Deddeh's department.

            Between January and early September 2003, Judge Deddeh and several other San Diego judges presided over additional hearings related to appointment of counsel, bail review, discovery, and other matters.  On September 3, 2003--in an apparent effort to avoid potential conflicts with the local bench given the Judge Elias stalking rumors--Judge Deddeh assigned the case to retired Judge Charles Jones for all purposes.  Judge Jones presided over the preliminary examination and bound Freeman over for trial.  Between September 2003 and April 2004, Judge Jones presided over various pretrial matters.  At a May 14, 2004 status conference, the district attorney advised Judge Jones that " the reason [for the assignment of the case to him] no longer exists."  Accordingly, Judge Jones stated he would " transfer the matter back to [Judge Deddeh]  .  .  .  and let him decide" which judge should be assigned to the case.

            At a hearing on May 14, 2004, Judge Deddeh concluded there was no need for recusal of the San Diego County Superior Court bench, explaining:  " [T]he only reason the bench was being recused [was] because there [was] a possibility that  .  .  .  on Miss Freeman's computer there was some indication that she was stalking Judge Elias.  Apparently the computer has been reviewed.  So out of an abundance of caution, [the prosecution] said Judge Elias may be a victim in this case.  And so apparently he's not a victim in this case.  And so there is apparently no reason for the bench to recuse itself."  Judge Deddeh then assigned the case to Judge O'Neill for all purposes.

            At this point, Freeman objected (speaking directly to the court and not through her counsel), asserting that Judge O'Neill had already recused himself because he was " a good friend of Judge Elias."   Judge Deddeh rejected the assertion, noting the Judge Elias matter had been resolved, but that Judge O'Neill could himself decide whether this was " an issue for him."

            On May 14, 2004, Freeman personally filed a handwritten challenge to Judge O'Neill.  The pleading stated that Freeman was challenging Judge O'Neill " for cause," and cited the circumstances of Judge O'Neill's December 2002 recusal.  Freeman's counsel did not join in the challenge.

            On May 20, 2004, Judge O'Neill and Judge Deddeh evaluated the motion in a series of hearings.  Judge O'Neill's minute order reflecting actions at a 9:00 a.m. hearing states:  " Peremptory challenge (declaration) filed.  Per the court, file to be sent back to Dept. 11 for reassignment." ^[3]  In Department 11, Judge Deddeh ruled that the challenge could not be honored unless it was filed by defense counsel, and transferred the matter back to Judge O'Neill.  At a 10:00 a.m. hearing before Judge O'Neill, Judge O'Neill initially analyzed the challenge as if it were a peremptory challenge under Code of Civil Procedure section 170.6, but Freeman's counsel interjected that the challenge was for cause (i.e., Code Civ. Proc., §  170.1).  Freeman's counsel stated that Freeman was satisfied with Judge O'Neill and suggested she wanted to withdraw the challenge.  However, Freeman herself posited that Judge O'Neill was not allowed to " rule on his own challenge."   Judge O'Neill agreed and transferred the matter back to Judge Deddeh for a ruling.  At a 2:00 p.m. hearing before Judge Deddeh, Freeman (personally and through counsel) withdrew the challenge, and the case was sent back to Judge O'Neill.  The minutes for the 2:00 p.m. proceeding state " [t]he defendant withdraws her CCP 170.6 challenge," whereas the reporter's transcript of the 2:00 p.m. proceeding reflects that Judge Deddeh characterized the motion as a " 170.1 challenge." ^[4]

            From July through October 2004, Judge O'Neill ruled on various pretrial matters. On October 18, 2004, the date set for the commencement of trial, Freeman herself again raised the issue of Judge O'Neill's earlier recusal from her case in December 2002, and presented a typed motion to disqualify Judge O'Neill for cause under Code of Civil Procedure section 170.1.  Freeman asserted that she believed Judge O'Neill was prejudiced because he told her so in December 2002, and that she was " bullied" by her attorneys to keep him as the judge because they told her she would be assigned someone " really terrible."  Judge O'Neill responded that the issue had already been resolved by Judge Deddeh, and noted that Freeman's disqualification motion had been withdrawn and further that the motion must be brought by Freeman's attorney, not Freeman herself.  Freeman did not file a petition for writ of mandate challenging the rejection of her disqualification motion.

B.  Governing Legal Principles

            California has enacted a comprehensive statutory scheme addressing the grounds and procedures for disqualification of a trial judge.  A party seeking appellate review based on a violation under the disqualification statute must file a petition for writ of mandate within 10 days of notice of the disqualification decision.  (Code Civ. Proc.,

§  170.3, subd. (d); People v. Brown (1993)6 Cal.4th 322, 333 (Brown); People v. Carter (2005) 36 Cal.4th 1215, 1242, fn. 19; People v. Barrera (1999) 70 Cal.App.4th 541, 550-551.)  The writ requirement is designed to promote judicial economy because "   '  " permitting [a disqualification] ruling to be attacked later on appeal of the judgment could invalidate every ruling made by the trial court judge after the disqualification motion was denied."   '  "   (Brown, supra, 6 Cal.4th at p. 333, and fn. 8.)

            Ordinarily, the failure to file a writ petition precludes a subsequent appellate challenge based on a disqualification claim.  However, when the appellant's disqualification claim implicates constitutional due process rights, appellate review is permitted.  In Brown, supra, 6 Cal.4th at pages 334-335, the California Supreme Court concluded that a party may raise a constitutional due process disqualification ground on appeal, even though the statutory disqualification ground addressing essentially the same due process issue may be reviewed only by writ.  In Brown, the defendant had brought a writ petition challenging a disqualification decision on a statutory ground, and the petition was summarily denied.  The Brown court concluded the defendant's due process claim was entitled to the procedural protections afforded on appeal (i.e., oral argument and a written opinion) and thus he could again raise the issue in his appeal from the final judgment.  (Id. at p. 336.)  In dicta, the Brown court suggested that in some cases a negligent failure to file a writ petition may constitute a forfeiture of the constitutional claim.  (Ibid.)  However, subsequent to Brown, the high court clarified that as long as the disqualification claim was raised at trial, it could be raised on appeal on constitutional grounds even if a writ petition was not filed.  (People v. Chatman (2006) 38 Cal.4th 344, 363.)  That is, " a defendant who raised the [disqualification] claim at trial may always 'assert on appeal a claim of denial of the due process right to an impartial judge.'  "   (Ibid.)

            In this appeal, Freeman has raised numerous arguments challenging Judge O'Neill's participation in the trial.  Because Freeman did not file a writ petition, our review is limited to determining whether Judge O'Neill's reinstatement into the case amounted to constitutional due process error.  In particular, we evaluate Freeman's claims that her due process rights were violated because Judge O'Neill's initial decision to disqualify himself shows he was biased, and his reinstatement to preside over her trial was improper.

            Judicial bias may arise from actual bias or the appearance of bias.  Actual bias exists if the judge has a mental predilection or prejudice regarding a particular party.  (In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 789.)  An appearance of bias exists when a reasonable person aware of the facts of the case might harbor a doubt that the judge would be able to be impartial.  (Brown, supra, 6 Cal.4th at pp. 336-337; see United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 103-104.)  Disqualification of a judge based on an appearance of bias is designed to protect the integrity of the legal system by promoting public confidence in an impartial judiciary.  As pronounced by the California Supreme Court more than a century ago:  " The trial of a case should not only be fair in fact, but it should also appear to be fair.  And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand."   (Pratt v. Pratt (1903) 141 Cal. 247, 252.)  In Johnson v. Superior Court (1958) 50 Cal.2d 693, 697, our high court again underscored the importance of the appearance of judicial neutrality, stating:  " It is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness."   Similarly, a Court of Appeal noted:  " [T]he source of judicial authority lies ultimately in the faith of the people that a fair hearing may be had.  Judicial behavior inimical to that necessary perception can never be countenanced and may well provide a basis for reversal  .  .  .  ."   (Catchpole v. Brannon (1995)36 Cal.App.4th 237, 253.)

            It is clear that the existence of actual bias violates constitutional due process and requires reversal.  (See Bracy v. Gramley (1997) 520 U.S. 899, 904-905; People v. Vasquez (2006) 39 Cal.4th 47, 69, fn. 12.)  The constitutional import of the appearance of bias is less well defined.  The United States Supreme Court has not clearly indicated whether, or under what circumstances, an appearance of judicial bias might rise to the level of a constitutional due process violation.  (Compare Bracy v. Gramley, supra, 520 U.S. at pp. 904-905 [confining constitutional issue to actual judicial bias] with Taylor v. Hayes (1974)418 U.S. 488, 501 and In re Murchison (1955) 349 U.S. 133, 136 [referring to due process as involving both actual and appearance of bias]; see Welch v. Sirmons (10th Cir. 2006) 451 F.3d 675, 700-701 (Welch) [discussing the unresolved issue]; People v. Chatman, supra, 38 Cal.4th at p. 363 [declining to decide the issue].)

            Several federal courts have considered the appearance of bias issue in the context of habeas proceedings, and, relying on United States Supreme Court decisions, have concluded there is no clearly established federal constitutional right to disqualification of a judge based on the " mere appearance of bias."   (Welch, supra, 451 F.3d at p. 701, italics added; Del Vecchio v. Illinois Dept. of Corrections (7th Cir. 1994) 31 F.3d 1363, 1371-1372, 1375 (Del Vecchio); Johnson v. Carroll (3d Cir. 2004) 369 F.3d 253, 260-263.)  However, these courts have recognized that when there is something more than a " mere" appearance of judicial bias, constitutional due process rights may be implicated.  In Welch, the court noted that the United States Supreme Court decisions referring to the appearance of bias in the constitutional context involved situations " in which the circumstances are sufficient to give rise to a presumption or reasonable probability of bias."   (Welch, supra, at p. 700, italics added.)  Similarly, in Del Vecchio, the court concluded the high court's references to the appearance of bias did not refer to " bad appearances alone," but rather envisioned " circumstances that present 'some [actual] incentive to find one way or the other' or 'a real possibility of bias.  .  .  .  '  "   (Del Vecchio, supra, 31 F.3d at p. 1375, brackets in original, italics added.)

            California courts have also suggested there may be circumstances where the appearance of judicial bias has constitutional import.  In Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1033-1034, the California Supreme Court reasoned that a hearing officer's financial interest in the case created an objective " appearance of bias that has constitutional significance" because the financial conflict might tempt the average adjudicator.  In several cases the Courts of Appeal have equated the appearance of bias with fundamental error requiring reversal when the record was replete with inappropriate statements by the judge such that " the average person could well entertain doubt whether the trial judge was impartial."   (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247; Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 455, 461-463; Hall v. Harker (1999) 69 Cal.App.4th 836, 841-843, overruled on other grounds in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 346.)  Recently, the California Supreme Court concluded that an erroneous denial of a motion to recuse a prosecutor for the appearance of bias did not, under the particular circumstances of the case, rise to the level of constitutional error.  (People v. Vasquez, supra, 39 Cal.4th at pp. 64-65.)  However, in reaching this conclusion the court contrasted the standards governing prosecutorial bias with those governing judicial bias, and referred to the deeply-rooted tradition of maintaining "   'rigid requirements' of adjudicative neutrality  .  .  .  ."   (Id. at p. 64, italics added.)^[5]

            These federal and California decisions reflect that there may be situations where the appearance of judicial bias is sufficiently elevated so as to invoke constitutional due process rights.  Thus, judicial bias may implicate constitutional due process not only when it is based on actual bias, but also when it involves an appearance of bias that could undermine the public's confidence in a fair judiciary.

C.  Analysis

            At the December 2002 hearing, Judge O'Neill recused himself based on his awareness of rumors that Freeman had been stalking Judge Elias, with whom Judge O'Neill had a longtime friendship.  Judge O'Neill insisted on disqualifying himself, telling Freeman he was not " the person [who] should hear" the bail motion, even when Freeman attempted to convince him the Judge Elias stalking rumors were not true.  Although it is unclear from this comment whether Judge O'Neill reached this conclusion because he believed he personally could not be fair or because he recognized that these circumstances created an appearance of bias, the critical point for our analysis is that Judge O'Neill believed his participation in the case was improper and disqualification was absolutely necessary.

            The issue before us is whether, based on the subsequent events, Judge O'Neill could be reinstated into the case without violating due process principles.  These events consisted of the prosecution notifying the supervising judge that Freeman's computer files had been reviewed and there was no evidence that Judge Elias was a victim of Freeman's stalking activities.  Judge O'Neill found this information eliminated the problem of actual bias and/or the appearance of bias.  Although we can accept the validity of Judge O'Neill's belief that he could be fair and impartial and that he did not have any actual bias towards Freeman, we conclude the appearance of bias persisted despite these beliefs.

            The prosecution's conclusion there was no supporting evidence on Freeman's computer does not definitively establish that the stalking did not occur, and a reasonable observer might question whether Judge O'Neill was still affected by the reports of stalking conduct directed at his friend.  The record shows Judge O'Neill initially believed he could not properly preside over the trial because of his awareness of the stalking rumors.  The fact the prosecution did not find supporting evidence and decided not to pursue formal charges does not necessarily show the rumors were false or had dissipated.  Thus, this was not a situation where the disqualifying factor was based on an objectively-verifiable fact that was later determined to be untrue.^[6]  Additionally, the stalking rumors were closely related to the criminal charges actually filed against Freeman, enhancing the perception that the prior rumors could continue to influence the trial judge's ability to be impartial.  Viewing the totality of the circumstances, a reasonable person might still harbor doubts as to whether Judge O'Neill was unaffected by the rumors.

            Once a judge has been disqualified for actual bias or the appearance of bias, the public has a right to expect that the judge will have no further dealings with the case except for minor, ministerial-type matters.  This expectation is not only intuitively sound, it is consistent with California's statutory disqualification scheme which generally prohibits a disqualified judge from any further involvement in the case and provides no mechanism for a disqualified judge to be reinstated into the case.  (Code Civ. Proc.,^[7] §§  170.3, subds. (a)(1),(b)(1), 170.4.)^[8]  Section 170.4 delineates the duties a disqualified judge may still perform, and provides that except for these limited duties, " a disqualified judge shall have no power to act in any proceeding after his or her disqualification or after the filing of a statement of disqualification until the question of his or her disqualification has been determined."   (§  170.4, subd. (d), italics added.)^[9]  " Proceeding" is defined as " the action, case, cause, motion, or special proceeding to be tried or heard by the judge."   (§  170.5, subd. (f), italics added.)  Thus, under the statutory scheme a disqualified judge may not " pick and choose" the matters from which he or she is recused.  Once disqualified, the judge is precluded from acting in the case except on limited and clearly defined matters.  (See Geldermann, Inc. v. Bruner (1991) 229 Cal.App.3d 662, 665; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 777-780.)  Further, there is no statutory provision authorizing a disqualified judge to be reinstated to preside over the trial when the judge was disqualified during earlier proceedings.

TO BE CONTINUED AS PART  II………

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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]           People v. Marsden (1970) 2 Cal.3d 118.

^[3]           The discussion giving rise to this minute order was not transcribed.

^[4]           On appeal, Freeman does not contend her May 2004 handwritten motion was intended to be a peremptory challenge.

^[5]           In Vasquez, the appearance of bias arose from a family relationship between a defendant and two employees in a large prosecutor's office.  (People v. Vasquez, supra, 39 Cal.4th at p. 65.)  To support its conclusion that there was no constitutional violation, the Vasquez court noted that the United States Supreme Court has generally not imbued situations involving the potential bias of a judge based on kinship or other personal connections (as opposed to a judge's direct pecuniary or personal stake in a case) with constitutional significance, but rather has left " that line-drawing process to state disqualification and disciplinary law, with only 'the most extreme of cases' being recognized as constitutional violations."   (Id. at pp. 63-65.)  This analysis is consistent with the conclusions in the federal cases that something more than the " mere" appearance of judicial bias is necessary to trigger a constitutional due process violation.

^[6]           Such a situation might arise, for example, when a judge was disqualified because of friendship with a particular person, and it is later discovered that the person was misidentified and was not in fact the judge's friend.

^[7]           For convenience, we shall subsequently refer to the statutory provisions governing judicial disqualification (Code Civ. Proc. § 170 et seq.) without referring to the Code of Civil Procedure.

^[8]           Although Freeman may not rely on the statutory disqualification scheme to obtain reversal for judicial bias, the scheme--which is designed to further due process by protecting the integrity of the judicial process--is a helpful guidepost to our constitutional analysis.

^[9]           Section 170.4, subdivision (a) provides that a disqualified judge may perform the following duties:  " (1) Take any action or issue any order necessary to maintain the jurisdiction of the court pending the assignment of a judge not disqualified.  [¶]  (2) Request any other judge agreed upon by the parties to sit and act in his or her place.  [¶]  (3)  Hear and determine purely default matters.  [¶]  (4)  Issue an order for possession prior to judgment in eminent domain proceedings.  [¶]  (5)  Set proceedings for trial or hearing.  [¶]  (6)  Conduct settlement conferences."