Opinion
NOT TO BE PUBLISHED
PROCEEDINGS in mandate after superior court issued an order striking a statement of disqualification. Allan J. Preckel, Judge., San Diego County Super. Ct. No. SCE267176
IRION, J.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2006, during an argument between Deputy Sheriff Lowell Bruce and his wife Kristin, which occurred in the presence of their four-year-old son, Bruce fired a single gunshot, hitting Kristin in the jaw. Kristin died of her injuries an hour later.
The People filed a complaint charging Bruce with murder (Pen. Code, § 187, subd. (a), child abuse (Pen. Code, § 273a, subd. (a)) and personal use of a firearm (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (d)). Bruce denied the charges, but was held to answer after the preliminary examination on May 14, 2007.
At the July 13 readiness conference, the Honorable Herbert J. Exarhos denied defense counsel's request for an in camera hearing. The prosecutor proceeded to inform the judge that the parties had resolved the case — Bruce would plead guilty to voluntary manslaughter and admit personal use of a firearm under Penal Code section 12022.5, subdivision (a), for a stipulated prison term of 15 years. Judge Exarhos rejected the negotiated settlement and, on July 27, assigned the case to the Honorable Allan J. Preckel for all purposes.
The parties appeared before Judge Preckel on August 7. Judge Preckel rejected the joint request of the defense and prosecution to hear counsel in chambers. The judge added he had read the transcript of the July 13 hearing, and suggested he had talked to Judge Exarhos but denied the conversation had influenced his decision to conduct all proceedings in open court.
Judge Preckel indicated he found the negotiated settlement unacceptable because the People had charged the case as murder and, in his view, the decision whether a homicide is murder or manslaughter is best made by 12 members of the community on the evidence presented at trial. Counsel engaged in a wide-ranging discussion with the judge, which included the propriety of imposing the upper term on both the voluntary manslaughter charge and firearm use enhancement under Penal Code section 12022.5; the prosecution's concern that the People will have to rely on Bruce's four-year-old son (who may not qualify as a witness) to establish their case; and Bruce's reluctance to have his son testify and be subjected to interviews by defense counsel and psychological experts. As the court summarized it, and the deputy district attorney concurred, the 15-year sentence was, "in the prosecution's view, the absolute maximum that legally, using the facts and circumstances of this case, . . . the court could reach were this to be an open plea and admission without any sentencing agreement."
In response to further questions from the court, the prosecutor stated that the People would be willing to file an amended information charging only voluntary manslaughter and alleging a personal firearm use enhancement under Penal Code section 12022.5, subdivision (a). The prosecutor also responded to the court's inquiries about the victim's parents, noting they were amenable to a 21-year term, although disappointed with the 15-year stipulated sentence, but "recognizing . . . the factors the court has outlined and . . . given the state of the law, that 15 years represents the most that we believe we can justify given the facts." At this point, Judge Preckel stated:
". . . I've had innumerable occasions to face what is being discussed in this case. That is to say, the proper resolution of a homicide case charged as a murder, and I fully respect the professionalism and competence of each and every attorney . . . in the present case."
"[C]ase negotiation, when properly done and conducted at arm's length, as I'm confident has taken place here in this case, involves a give-and-take where, in reaching a proposed settlement, each party . . . surrenders important rights and interests.
"And that's what we have here presently, Mr. Bruce's apparent willingness to accept a substantial prison sentence in order to avoid much more onerous consequences and, conversely, the People's willingness to accept a lesser disposition than presently charged in order to secure the certainty of a conviction and the certainty that a substantial penalty will be imposed upon Mr. Bruce.
"I don't know where this case would end up or how it would resolve itself in the hands of the jury. None of us do. . . . So I appreciate that it's in the interests of the parties; and, parenthetically, notwithstanding my prior statements, it's certainly not antithetical to the court's interests to settle this case in a reasonable manner, if we can do so.
"With all that said, I'm going to take a recess so that I can further reflect upon this case and what has been said here this morning. Presently, . . . assuming that the People file a formal amended information, I am of the mind to accept Mr. Bruce's plea of guilty to voluntary manslaughter with the admission of the pertinent firearm use allegation, and with the 15-year stipulated sentence and a waiver of all appellate rights. So that's my tentative at this time."
Following the recess, counsel presented the court with the amended information and a change-of-plea form executed by Bruce in exchange for a stipulated sentence of 15 years. After asking the prosecutor several questions about the victim's parents' input and awareness of that day's hearing, the judge announced that the clerk had received a voicemail message on the court's public line from a friend of the victim's parents. The judge stated that he had listened to the message and then read the message verbatim into the record. The message advised that the parents were in Florida, they could not attend the proceedings, and they do not agree with "any of this." Judge Preckel thereafter postponed accepting the amended information, returned the change-of-plea form to counsel, and continued the matter to August 14 so the parents could be present. He nevertheless added: ". . . I stand by my tentative [to accept the negotiated settlement] at this time, understanding that most everything is subject to change. But right now, my tentative on the 14th is as I've already expressed it."
On August 10, Judge Preckel e-mailed the following message to counsel: "Please be advised that Ms. Narducci, on Dept. 12's public line, has been receiving calls this morning (upwards of 10 or so) from members of the public, inquiring about the proceedings and/or the hearing on August 14, and/or expressing their opinion about the proposed disposition (generally contra). [¶] Other than confirming what is already part of the public record, and confirming August 14's hearing date and time, no other information is being provided and [callers] are being referred to the District Attorney's Office and/or [the Deputy District Attorney] with respect to their questions or concerns."
The judge took the bench at the August 14 hearing and announced he had experienced a "substantial change" of opinion about the case: He was rejecting the negotiated settlement and, in his view, Bruce should enter an open plea, stipulate to the use of the preliminary hearing transcript as the factual basis for the plea, and allow the court to decide the sentence from the statutory minimum of six years to the statutory maximum of 21 years. The judge then formally accepted, and arraigned Bruce on, the amended information charging voluntary manslaughter with the relevant personal firearm use allegation. When defense counsel complained the court was treating the case differently than other cases and knew so little about the case, Judge Preckel echoed counsel's words and asked, if the court knew so little about the case, how could Bruce be prejudiced by pleading to the amended information and having an open sentencing hearing with all the facts on the table. The judge went on to explain he was simply saying that "the court is not willing to stipulate now to a sentencing decision."
Bruce pleaded guilty to voluntary manslaughter and admitted the personal firearm use allegation under Penal Code section 12022.5, subdivision (a) without the stipulated sentence. The court questioned Bruce on his understanding of the consequences of the guilty plea, and accepted the plea based on the handwritten statement on the change-of-plea form that Bruce had shot and killed his wife. Notwithstanding defense counsel's refusal to stipulate to the use of the preliminary examination transcript, Judge Preckel incorporated the transcript into the record as "an augmented factual basis for the plea and admission." When counsel continued to object, the judge stated the transcript was part of the official record, but declined to say how it would be used. Sentencing was set for October 24.
On August 22, Judge Preckel alerted counsel by e-mail that he had received correspondence addressed to him personally from someone he knew — a neighbor of the victim's parents. Bruce's counsel asked that the letter be copied and forwarded to the defense and the prosecution. The judge ordered that the letter (and all other letters from the public) would remain in the court's file available for reading but could not be copied.
Although the letter is not included in the exhibits because of the court's prohibition on copying, defense counsel characterizes it as denouncing Bruce and supporting the victim's parents.
On October 25, at the direction of the judge, the clerk e-mailed counsel that the sentencing had to be rescheduled because of the wildfires and asked counsel to agree to a new date. Judge Preckel later approved the stipulated sentencing date of November 27.
On November 1, Bruce filed a lengthy verified statement of disqualification, asserting Judge Preckel should be disqualified on grounds that "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial" (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii)), and disqualification "would further the interests of justice" (§ 170.1, subd. (a)(6)(A)(i)). Bruce asserted, as support for his contention, that the judge had: (1) treated the case in a manner inconsistent with established practice, (2) refused to receive information about the case in chambers, (3) indicated he could impose the upper term on the firearm use allegation, (4) incorporated the preliminary hearing transcript into the record over Bruce's objection, (5) acquiesced to the wishes of the victim's family, (6) tentatively agreed to accept the negotiated plea and then rejected it, (7) accepted ex parte communications, (8) communicated with counsel on rescheduling when the court was closed because of the wildfires to insure that the victim's family would be able to attend, and (9) refused to disseminate letters on the case.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
On November 8, Judge Preckel filed a verified answer, admitting the bulk of the factual contentions in Bruce's statement of disqualification, but denying they constituted grounds for recusal. In his answer, the judge further denied any bias for or against any party, denied treating Bruce differently than any other defendant based on his status as a former deputy sheriff, and denied that he could not be fair and impartial.
On November 8, the judge also issued an order striking the statement of disqualification on the basis it contained no legal grounds for disqualification. Although indicating a few of Bruce's contentions were inadmissible or inappropriate, the judge found "no legally appropriate facts [are] presented in the Verified Statement to support the allegation of bias on the part of the trial judge, nor is there any basis for any reasonable conclusion that Judge Preckel is biased."
The judge dismissed as hearsay defense counsel's statement that conversations with other attorneys revealed no case in which Judge Preckel had refused to hear discussions incident to a plea in chambers, and called any conclusion of bias based on the personal experience of Bruce's attorneys with the judge in chambers speculation. Judge Preckel labeled Bruce's contention that the judge had incorporated the preliminary hearing transcript into the record to rely on the truth of the statements speculation. He also found Bruce's contention of bias based on the judge's indication that he could impose the upper term sentence on the firearm use allegation inappropriate, stating expressions of a judge's view on legal or factual issues are not grounds for disqualification.
Bruce followed with this petition challenging the order striking the statement of disqualification. We stayed the sentencing, requested a response from the People, and invited a response from the superior court.
A judge may not file a petition seeking writ review of a disqualification order. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1071.) However, a judge may submit a brief in defense of a ruling in limited circumstances, including in a writ proceeding filed by a party challenging a disqualification order. (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523, fn. 2 [court's return to writ petition treated as amicus brief "because we recognize the impact of disqualification orders upon the court's case management system"].)
In their response, the People agree that the superior court improperly ordered the statement of disqualification stricken. Although not directly addressing the propriety of striking the disqualification statement in its response, the superior court, in effect, argues for an expanded interpretation of victim participation in criminal cases to include plea negotiations, defends its practice of requiring all matters to be heard in open court based on the public's right of access under the First Amendment, and generally characterizes the other claimed errors as minor and not amounting to bias. We issued a Palma notice. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
DISCUSSION
The sole question in this writ proceeding is whether the factual contentions in the statement of disqualification, read as a whole, are sufficient to cause a person aware of all the facts to entertain a reasonable doubt about the judge's impartiality. (§ 170.1, subd. (a)(6)(A)(iii).) If they are, Judge Preckel was not permitted to order the statement of disqualification stricken, and should have, instead, allowed the question of his disqualification to be heard and determined by another judge. (§ 170.3, subd. (c)(5).)
Statutory Framework
The Legislature has enacted a series of interrelated statutes that govern judicial recusal. (§§ 170-170.9.) As they relate to this case, a party seeking to disqualify a particular judge must file a verified statement setting forth facts constituting the grounds for disqualification. (§ 170.3, subd. (c)(1).) If the judge does not consent to recusal, he or she may file a verified answer within 10 days after the filing or service of the statement of disqualification, admitting or denying the allegations and setting forth any additional relevant facts. (§ 170.3, subd. (c)(3).) However, the challenged judge may "not pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party." (§ 170.3, subd. (c)(5).) Instead, the statute requires that "the question of disqualification . . . be heard and determined by another judge agreed upon by all the parties who have appeared or, in the event they are unable to agree . . ., by a judge selected by the chairperson [or the vice chairperson] of the Judicial Council." (Ibid.)
Notwithstanding the statutory prohibition against passing on his or her own disqualification, a judge has authority to order the statement of disqualification stricken within the 10-day period in which he or she answers. (§ 170.4, subd. (b); PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 972.) This authority may be exercised only for specified defects, including that a statement "on its face . . . discloses no legal grounds for disqualification." (§ 170.4, subd. (b), italics added.)
Section 170.4, subdivision (b) provides: "Notwithstanding paragraph (5) of subdivision (c) of Section 170.3, if a statement of disqualification is untimely filed or if on its face it discloses no legal grounds for disqualification, the trial judge against whom it was filed may order it stricken." Although the statute authorizes striking a statement for lack of timeliness or facial insufficiency, we do not address timeliness because neither the parties nor the judge contend the disqualification statement in this case was untimely.
In In re Morelli (1970) 11 Cal.App.3d 819, 843, the court conducted an exhaustive survey of the cases and summarized the statement may be stricken "when all that [the] papers contain are: conclusions; references to copious transcripts without citation to specific excerpts; allegations of facts not pertinent or appropriate to the issues to be determined in the hearing; material not legally indicative of bias . . . such as judicial opinions . . .; judicial reactions based on actual observance in participation in legal proceedings; and references to [inconsequential] circumstances" not probative of bias.
The statutory framework specifies grounds for disqualification. These include, among other things, a judge's financial interest in the subject matter of the proceeding or one of the parties to the proceeding, relationship to a party or counsel, personal knowledge of disputed facts, and the judge's having rendered professional services related to the matter. (§§ 170.1, subd. (a).) Disqualification is also required when the judge "believes his or her recusal would further the interests of justice" (§ 170.1, subd. (a)(6)(A)(i)); the judge "believes there is a substantial doubt as to his or her capacity to be impartial" (§ 170.1, subd. (a)(6)(A)(ii)); or "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial" (§ 170.1, subd. (a)(6)(A)(iii)).
Disqualification Based Upon a Reasonable Person's Doubts About the Judge's Impartiality
Judicial recusal based on the statutory ground that "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial" (§ 170.1, subd. (a)(6)(A)(iii)) involves sensitive considerations that strike at the "core" of our system of justice — "the appearance of objectivity of the decision maker" — and require a careful balancing of affected interests. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 100 (United Farm Workers).) These interests include "the public's right to be assured of the fair, but yet efficient, resolution of disputes" on one hand and "the parties' right to a decision based upon the court's objective evaluation of the facts and law" on the other. (Ibid.) Judicial responsibility does not, however, require that the judge retreat from the bench every time an advocate asserts the appearance of bias. (Ibid.) A judge has a duty to sit in "any proceeding in which he or she is not disqualified." (§ 170; United Farm Workers, supra, at pp. 100, 103.) By the same token, the judge has a duty not to sit in a proceeding in which a person might reasonably have a question about his or her impartiality. (United Farm Workers, supra, at p. 100.)
The standard for determining whether a person might reasonably entertain doubts about a judge's impartiality is an "objective one." (United Farm Workers, supra, 170 Cal.App.3d at pp. 104, 107; In re Wagner (2005) 127 Cal.App.4th 138, 147.)
Objectivity is not measured from the litigants' perspective. (United Farm Workers, supra, 170 Cal.App.3d at p. 104.) "[T]he partisan litigant emotionally involved in the controversy underlying the lawsuit is not the disinterested objective observer whose doubts concerning the judge's impartiality provide the governing standard." (Id. at p. 106, fn. 6) For obvious reasons, the objective standard also is not determined by the judge's personal view of his or her own impartiality. (Id. at p. 104) Evaluating a statement of disqualification from the challenged judge's personal perspective is inimical to the time-honored maxim that "no man ought to be a judge in his own cause" (Meyer v. City of San Diego (1898) 121 Cal. 102, 104) and violates the sister recusal statute prohibiting a judge from passing on his or her own disqualification or the legal or factual sufficiency of a party's statement of disqualification (§ 170.3, subd. (c)(5); United Farm Workers, supra, at p. 104, fn. 3). The appropriate inquiry, then, is how the judge's participation in a given case looks to " 'the average person on the street.' " (United Farm Workers, at p. 105, citing Potashnick v. Port City Constr. Co. (5th Cir. 1980) 609 F.2d 1101, 1111.)
The facts and circumstances prompting the challenge must be analyzed as of the time the challenge is brought. (United Farm Workers, supra, 170 Cal.App.3d at p. 104.) Evaluation of the challenge must not isolate facts or take comments out of context. (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170-171.)
Analysis
Applying the above legal framework to the facts of this writ proceeding, we conclude that Judge Preckel should not have stricken his statement of disqualification, but rather should have allowed the issue of the reasonable appearance of impropriety to be considered by another judge. As noted in the preceding section, the Legislature has declared that a challenged judge may "not pass upon his or her own disqualification or upon the sufficiency in law, fact, or otherwise, of the statement of disqualification filed by a party" (§170.3, subd. (c)(5)), except in the narrow circumstance where a disqualification statement is so frivolous that "on its face" it "discloses no legal grounds for disqualification" (§ 170.4, subd. (b)). We believe the statement of disqualification at issue here, although not a model of clarity, contained sufficiently nonfrivolous allegations of the possible appearance of bias such that another judge (not Judge Preckel) was required to determine whether "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (§ 170.1, subd. (a)(6)(A)(iii), italics added; see § 170.3, subd. (a)(6) [authorizing the judge deciding the question of disqualification to "set the matter for hearing" at which he or she "shall permit the parties and the judge alleged to be disqualified to argue the question of disqualification and shall for good cause shown hear evidence on any disputed issue of fact"].)
Consequently, although we recognize that Judge Preckel was adhering to the countervailing statutory principle which requires a judge "to decide any proceeding in which he or she is not disqualified" (§ 170) and "serves to remind judges of their" often unwanted "duty to hear cases which are controversial and might subject them to public disapproval" (United Farm Workers of America, supra, 170 Cal.App.3d at p. 103), we believe the fine balancing act often required of judicial officers ultimately required, in this case, that Bruce's statement of disqualification be considered by another judge.
We emphasize that we are not ourselves passing on the propriety of Judge Preckel's actions in this matter (something the statutory framework does not contemplate at this juncture) nor are we making any determination as to whether Judge Preckel should, or should not, be disqualified. (See, e.g., In re Alvernaz (1992) 2 Cal.4th 924, 941 [recognizing that the trial court has a duty to approve or reject a proposed plea bargain and, in making its determination, a responsibility to promote the public interest in prosecuting criminals, imposing appropriate punishment, and protecting victims of crime].) All we are called upon (and authorized) to do in this proceeding is to evaluate whether the statement of disqualification filed by Bruce was so lacking in substance that Judge Preckel himself could decide the questions raised, given the Legislature's decree that no judge may "pass upon his or her own disqualification" (§ 170.3, subd. (c)(5)). As we conclude that Bruce's statement of disqualification passed this relatively low hurdle, we reverse Judge Preckel's decision to strike it. We deny the alternative request that this court order Judge Preckel's recusal. We decide nothing more.
Because the law is well-settled, and the matter is urgent requiring acceleration, we further conclude a peremptory writ in the first instance is proper. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4; § 1088.)
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate the order striking the statement of disqualification, reinstate the statement, and remand the matter of Judge Preckel's disqualification to another judge for hearing and determination.
We deny Bruce's alternative request that this court order Judge Preckel's recusal.
The stay issued on December 5, 2007, is vacated. The opinion will be final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: NARES, Acting P. J., McDONALD, J.