Morrow v. Superior Court

Filed 1/30/07 Morrow v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Petitioner Joseph Eli Morrow is charged with murdering his wife and with an enhancement alleging that the murder was committed for financial gain. On March 23, 2006, the Honorable Craig L. Parsons was scheduled to hear petitioners motion to dismiss the indictment pursuant to Penal Code section 939.71 and Johnson v. Superior Court (1975) 15 Cal.3d 248 (Johnson) [Johnson hearing or motion[1]]. Before the Johnson hearing began, petitioner objected to Judge Parsons presiding over the trial.[2] He based his objection on the fact that at the Johnson hearing he intended to call another San Mateo Superior Court judge, the Honorable John L. Grandsaert, who had been the deputy district attorney responsible for the case against petitioner from the beginning of that case until Judge Grandsaert was elevated to the bencha period of approximately 13 years. Petitioners motion to dismiss focuses on the prosecutors decision not to present allegedly exculpatory evidence to the grand jury[3] and contends that this failure now requires that the indictment be dismissed.

Thus, the crux of the motion to dismiss is that the prosecutornow Judge Grandsaertmade improper legal decisions by not presenting certain required evidence to the grand jury. Judge Parsons, as the judge presiding over the Johnson hearing, will be required to rule on the prosecutors motion seeking to quash Judge Grandsaerts subpoena. Assuming Judge Parsons denies that motion, he may then have to weigh Judge Grandsaerts credibility, determine the admissibility of evidence associated with his testimony, and, ultimately, determine whether Judge Grandsaert, when he was a prosecutor, had withheld from the grand jury evidence that he had an obligation to disclose, thereby, requiring the dismissal of the indictment.

Petitioner emphasizes that disqualification, as provided for in the Code of Civil Procedure[4] section 170.1, subd.(a)(6)(A)(iii) is mandatory if a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judges impartiality. . . . Here, he contends, there are two critical facts that would cause a reasonable person to doubt Judge Parsonss impartiality: (1) the hierarchical superior court system, where judges vote every two years to select a presiding and assistant presiding judge and where the presiding judge has responsibility over other judges case assignments and designates supervising judges to be responsible for particular divisions, such as the Criminal Division; and (2) Judge Parsonss urging the parties to work out a way to avoid calling Judge Grandsaert as a witness after Judge Grandsaert called him and told him that the defense needed him as a witness. For the reasons stated below, we find these arguments to be without merit and, therefore, dismiss the petition.

PROCEDURAL HISTORY

Prior to the commencement of the March 23, 2006 Johnson hearing, petitioner filed a Written Verified Statement objecting to the Qualification of the Honorable Craig L. Parsons and Demand for Evidentiary Hearing pursuant to Code of Civil Procedure Section 170.3. The next day, in response, Judge Parsons filed a Verified Answer to Statement Objecting to the Qualification of the Honorable Craig L. Parsons. On March 27, 2006, Judge John Runde of the San Mateo County Superior Court held a hearing where the parties failed to agree on a judge to decide the disqualification issue and Judge Runde referred the matter to the Judicial Council Chairperson to select a judge. On March 28, 2006, the Honorable Ronald M. George, in his role as Judicial Council Chairperson, assigned Judge Bernard J. Garber, a San Joaquin Superior Court judge, to hear this matter. On April 12, 2006, Judge Garbers ruling, denying the motion to disqualify Judge Parsons, was filed in the superior court.

On April 14, 2006, petitioner filed the instant petition for a writ of mandate and request for a stay of trial court proceedings. This court, after initially requesting informal briefing and temporarily staying the matter below, summarily denied the petition and dissolved the temporary stay on May 18, 2006. Petitioner then filed a petition for review in the California Supreme Court and, on July 26, 20 06, the Supreme Court granted review, transferred the matter back to this court, directing us to vacate our prior order denying mandate and to issue an order directing respondent to show cause why the relief sought in the petition should not be granted. On August 14, 2006, we issued the order to show cause and reinstated the stay of proceedings in the trial court.

DISCUSSION

A petition for a writ of mandate is the exclusive method for a party to obtain review of an order denying a motion to disqualify a judge. (People v. Mayfield (1997) 14 Cal.4th 668, 811.) The applicable disqualification standard is an objective one: if the fully informed, reasonable member of the public would fairly entertain doubts that the judge is impartial, the judge should be disqualified. ( 170.1, subd. (a)(6)(A)(iii); Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170.) Neither the litigants nor the judges view of the matter is determinative. (Flier v. Superior Court, supra, 23 Cal.App.4that p. 171.) Where, as here, the underlying facts are undisputed, the appellate court conducts an independent review. (Ibid.) Although the statute requires the disqualification of a judge whose impartiality is reasonably in doubt, it also emphasizes that a  judge has a duty to decide any proceeding in which he or she is not disqualified,  reminding judges of their duty to hear cases which are controversial and might subject them to public disapproval as well as to protect them from public criticism by a clear statement of their responsibility. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 103.)

1. The Issue is Ripe for Review.

As a preliminary matter, the People urge that we deny the petition because the matter is not ripe for review on the grounds that they have brought a pending motion to quash subpoena for Judge John Grandsaert asserting that the judges potential testimony is not relevant. Thus, the prosecution contends until the motion to quash is decided, this petition is premature. The Peoples argument overlooks the fact that if Judge Parsons is not disqualified, he will decide the pending motion to quash. Thus, if Judge Parsons were biased in favor of Judge Grandsaert, his decision regarding the motion to quash would be tainted. Hence, the disqualification issue should be decided now.

2. A Legitimate Basis to Disqualify Judge Parsons is Not Established by the Fact That Judge Grandsaert and Judge Parsons Both Sit on the Same Superior Court Bench.

Petitioner contends that the fact that Judges Parsons and Grandsaert both sit on the same superior court makes them dependent on one another, since they both vote to select local judicial officers who will decide case and courtroom assignments. Petitioner contends that their mutual influence over one another is a daily fact of life, and is not speculative.

Petitioner relies primarily on United States v. Gordon (2005) 354 F.Supp.2d 524 as persuasive authority that Judge Parsonss recusal is necessary. The factual situation in Gordon is readily distinguished, however, from the one at issue here. Gordon involved allegations of public corruption against county officials. A judge sitting on a four-judge court was subpoenaed, allegedly due to his personal connections and business dealings with two of the defendants. There, the judge presiding over the proceedings deemed it necessary, given his professional and personal relationship with the subpoenaed judge, to recuse himself because there would be a natural empathy in seeing a colleagues reputation and privacy threatened by embroilment in a criminal prosecution. (Id. at p. 528.) The judge who recused himself regarded the issue that was at stake as a threat to his colleagues reputation for honesty and to his integrity, which he described as something more precious than the mere dollars at issue between the parties in most civil cases. (Id. at p. 529.) In sharp contrast, the San Mateo court has 26 active judgesmore than six times the number of judges as the court at issue in Gordon. Judges Parsons and Grandsaert do not sit in the same courthouse. Thus, there is no appearance that Judges Parsons and Grandsaert have as close a working relationship as the judges did in Gordon. Most important, the issues to be decided do not go to Judge Grandsaerts honesty and integrity. At the very most, there may be a finding by Judge Parsons that Judge Grandsaert, when he was a deputy district attorney, erred by not informing the grand jury of something he should have. But prosecutors and judges routinely have their decisions reviewed by higher authorities and, sometimes, those decisions are found to have been erroneous. Judge Grandsaerts reputation for honesty and integrityfundamental requirements for sitting as a judgeare not at issue. Judge Parsons at the end of the day may differ with his colleague about what had to have been disclosed to the grand jury, but ones judgment was rendered when he was acting as an advocate, while the others judgment is reached while sitting as a judge. In short, here the accusations against Judge Grandsaert are not nearly as momentous as the accusations in Gordon; thus, the natural empathy that might be elicited in the trial judge for his colleague would not be nearly as intense and, therefore, does not raise doubts about Judge Parsonss neutrality.

Petitioner also cites United States v. Jordan (1995) 49 F.3d 152 to support his position. Again, factually, that case bears no relationship to this one. There, a 22-year relationship existed between the trial judge, the judges husband, and another couplethe Woods. The relationship between Mr. Wood and the Jordandefendant was characterized by the appellate court as having no small amount of resentment and animosity, if not blind hatred. (Id. at p. 156.) In short, there the judge presided over the trial of a detested enemy of one of her good friends. In this case, of course, no facts suggest the relationships between the judges or between Judge Grandsaert and the petitioner even remotely approach the intensity of the relationships described in Jordan. Yet, even in Jordan, the appellate court did not reverse the convictionit merely vacated the sentence and remanded for resentencing.

Here, Judge Garber accurately characterized petitioners arguments concerning a conflict stemming from future intra-court elections for presiding judge and assistant presiding judge as completely speculative. Among other things there is no evidence in the record that either judge will run for those offices in the future or that a ruling in this case would affect either a future vote or a case assignment by either of them.

More than 100 years of California case law establishes that a judges indirect and speculative interests in a matter are insufficient to require recusal from sitting on a case. (See, e.g., Meyer v. City of San Diego (1898) 121 Cal.102, 109 [summarizing cases where judges remote, doubtful, and speculative interests were insufficient bases to disqualify]; Cuyamaca Water Co. v. Superior Court (1924) 193 Cal. 584, 587 [remote, contingent and speculative interest in a matter is not grounds for disqualification]; Cohn v. Superior Court (1936) 13 Cal.App.2d 565, 571-572.)[5] This continues to be true despite various amendments to section 170.1. Thus, for example, in People v. Carter (2005) 36 Cal.4th 1215 (Carter), the defendant filed a motion to disqualify the trial judge pursuant to section 170.1, subdivision (a)(6) because the judge had maintained a  working relationship and a friendship with the prosecutor in [that] case such that a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.  (Carter, supra, 36 Cal.4th at p. 1241.) There the court easily determined that the judges casual relationship with the prosecutor would not lead a reasonable person to doubt the judges impartiality. (Id. at 1243.) Although the court did not explicitly use the words remote, speculative, or indirect to characterize any facts that were put forward to demonstrate that the judge was biased due to her relationship with the prosecutor, its implicit reasoning was that any inference that their casual relationship created a doubt as to the judges fairness was speculative.

The demonstrated relationship between Judges Parsons and Grandsaert at issue here is even more remote than the relationship at issue in Carter. There the judge had been the prosecutors subordinate when she had worked as a prosecutor, their families had gone camping together, they had socialized together, she had participated in the wedding of the prosecutors daughtermarrying her and receiving a necklace in appreciation from the daughterand the prosecutors daughter had house sat for the judge. (Carter, supra, 36 Cal.4th at p. at 1241.) Despite all this, the court concluded that the reasonable person would not doubt the judges impartiality. Here, in contrast, no personal friendship is alleged. The judges are both judicial officers sitting on the same 26-member superior court benchbut do not even sit in the same building. It is assumed that they both participate in the normal intra-bench relationships, including elections for judicial officers; the results of those elections may at some future time affect work assignments for either of those judges. But there is absolutely nothing to suggest to the fully informed, reasonable person that those electionsor anything in the judges professional relationship with one anotheris so critical that it would affect Judge Parsonss rulings in this case. Consequently, the fact that the potential witness here is a judge sitting on the same bench as the judge who is to preside over this case is not by itself a reason to require Judge Parsonss recusal.

3. Encouraging the Parties to Reach a Stipulation to Eliminate the Need for Judge Grandsaerts Testimony Does Not Establish a Basis to Disqualify Judge Parsons.

Petitioners second basis for seeking Judge Parsonss disqualification is that after receiving a phone call from Judge Grandsaert advising him that the defense intended to call him as a witness, Judge Parsons encouraged the parties to reach a stipulation regarding Judge Grandsaerts potential testimony in order to avoid calling him as a witness. This phone call requires some scrutiny. Initially, we note that it was the potential witness who called Judge Parsonsnot the other way aroundso the fact that the phone call was made hardly suggests that Judge Parsons is biased. The People contend that, given petitioners admission that Judge Parsons was the criminal presiding judge of the San Mateo Superior Court, Judge Grandsaert was obligated to report that he had been called as a witness and was, thus, unavailable to serve as a judge while under subpoena. This would be a convenient reason to justify the phone call, were it not for the fact that Judge Parsons himself states that, at the time, he was not the criminal presiding judge. Apparently, that was not the reason Judge Grandsaert placed the phone call. Based on the record before us, however, we simply cannot say why Judge Grandsaert made that call. What we can say is the reasons for placing the call were Judge Grandsaerts and there is no reason to impugn Judge Parsonss impartiality based on the fact that the call was made. Moreover, the sparse information we have about what was said during the call would not lead the reasonable member of the public to doubt Judge Parsonss neutrality.

We are then left with the fact that after the phone call, Judge Parsons encouraged the parties to exercise their best efforts to attempt to avoid the need to call Judge Grandsaert as a witness by working out a stipulation as to Judge Grandsaerts testimony. Judge Parsons states he did so because he was concerned about judicial economy and efficiency, given that, at the time the hearing would have taken place, Judge Grandsaert was presiding over a trial and he was sitting in a courthouse located approximately 30 minutes away from Judge Parsonss court.

 A stipulation is [a]n agreement between opposing counsel . . . ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action, [citation] and serves to obviate need for proof or to narrow [the] range of litigable issues [citation]. [Citation.] (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279.) Furthermore, stipulations are favored by the courts. (Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452.) In other words, after his telephone call with Judge Grandsaert, Judge Parsons encouraged the parties to explore whether they could agree what the witnesss testimony would be in the interest of efficiency and judicial economy. That hardly seems to be a valid reason to disqualify the judge from presiding over the trial. Of course, there could be situations where a judge encourages (or pressures) the parties to stipulate to certain facts where the judges actions would manifest the judges bias. For example, had the judge encouraged the parties to stipulate to facts that would either unfairly justify or unfairly impugn Judge Grandsaerts decisions about what to present to the grand jury, such pressure would support disqualification. But that did not happen here and there is no reason to suspect that Judge Parsonss actions betray a bias in favor of Judge Grandsaert.

CONCLUSION

Our analysis has focused on the individual factors petitioner claims show that Judge Parsons is biased. There can, certainly, be situations where no single fact by itself is sufficient to require a judges recusal, but where the overall combination of factors is sufficient to cause one to doubt a judges neutrality. Here, however, not only are the individual facts insufficient to require disqualification, but when taken together, they still do not rise to a level that would lead a fully informed, reasonable member of the public fairly to entertain doubts about Judge Parsonss impartiality. There are no innocent, individual facts here that combine to create a pattern suggesting bias. Accordingly, the petition for a writ of mandate is denied and the temporary stay of trial proceedings previously issued is dissolved.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1]Johnson held that when a district attorney seeking an indictment is aware of evidence reasonably tending to negate guilt, he is obligated . . . to inform the grand jury of its nature and existence, so that the grand jury may exercise its power . . . to order the evidence produced. (Johnson, supra, 15 Cal.3d at 255.) The Johnson courts holding was codified at Penal Code section 939.7, which requires the dismissal of the relevant portion of an indictment if the prosecutors withholding of such evidence results in substantial prejudice to the defendant. A hearing on the issue of whether a criminal case should be dismissed on these grounds is commonly called a Johnson hearing.

[2] There was initially some ambiguity whether the petitioner sought to disqualify Judge Parsons from presiding over the Johnson hearing only or whether he sought the judges disqualification from presiding over the entire trial. Ultimately, petitioners position was that Judge Parsons should be disqualified from the entire trial. The People, on the other hand, contend that if Judge Parsons is to be disqualified at all, he should only be disqualified from presiding over the Johnson hearing. Petitioner now asserts that the only issue before this court is whether to disqualify Judge Parsons from presiding over the entire matter. Because we conclude that disqualification is not appropriate, we need not address this dispute.

[3] Specifically, petitioner claims that the following evidence should have been disclosed to the grand jury: (1) a letter from a San Quentin inmate stating that two other people had dumped the victims body near the Port Chicago Naval Weapons Station, after presumably having killed her, (2) facts of which the prosecution was aware contradicting a statement by a key witness, Maldonado, to the grand jury about the last time he had seen the defendant, (3) Maldonados nervous demeanor when he first spoke to an investigator about the murder, (4) evidence corroborating petitioners stated reason for borrowing a jeep (to deliver holiday flowers, rather than to transport the victims body), (5) a statement by a witness who saw the petitioner, the victim, and their entire family on the night of the alleged murder stating that he had observed nothing unusual about them, (6) an alleged contradiction concerning whether an affair the victim had been having had ended, (7) the fact that the victims lover had been convicted of misdemeanor grand theft, (8) the fact that the police had received an anonymous letter suggesting that the victims body might be found in the Clear Lake area, (9) details of alleged sightings of the victim after she had supposedly been killed, (10) the fact that a thorough search of the property where the victims body was ultimately discovered had been conducted on January 25, 1992 without finding the burial site, (11) the fact that the area where the victims body was buried was full of poison oak, but that petitioner had no signs of poison oak, and (12) the fact that there was medical evidence contradicting testimony by a witness that the petitioner had told him he had faked a suicide attempt to gain sympathy and confuse the police about whether he was the murderer.

[4] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[5] Petitioner urges us to use federal case law to inform our decision because the federal standard for recusal is similar to the California standard. Given the developed California case law, this reliance on federal cases is unnecessary. Nonetheless, the federal standard, set out in title 28 of the United States Code, section 455, is, indeed, similar to the California standard, requiring judges to disqualify [themselves] in any proceeding in which [their] impartiality might reasonably be questioned. But where a case involves remote, contingent, indirect or speculative interests, disqualification is not required. (United States v. Lovaglia (1992) 954 F.2d 811, 815.) Thus, petitioners reliance on federal authorities affords him no advantage.