Opinion
A119502
11-16-2007
JAMES PATRICK CONWAY, Petitioner, v. THE SUPERIOR COURT OF SOLANO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED
James Patrick Conway petitions this court for a writ of mandate directing respondent Solano County Superior Court to vacate its October 15, 2007 order to strike the statement of disqualification petitioner has filed challenging Judge Wendy G. Getty for cause. He also seeks a stay of proceedings until the issue of Judge Gettys disqualification has been resolved. For the reasons stated below, we direct the issuance of the writ, but decline to stay the proceedings below.
Petitioner is charged with violating Penal Code section 288.5 (engaging in three or more sexual acts with a child under 14) and is facing trial on December 12, 2007. On October 4, 2007, he filed a Code of Civil Procedure section 170.1 challenge to Judge Getty, alleging that a person aware of the relevant facts might reasonably entertain a doubt as to her impartiality in this case. The challenge alleges that although this case stems from comparatively minor alleged misconduct of the defendant, who himself had been the victim of abuse and had voluntarily entered into treatment, on three separate occasions the judge had indicated she would not promise to grant probation upon the entry of a guilty plea and would promise nothing less than a midterm sentence. Petitioners attorney provided the judge with supportive reports from petitioners treating psychologist and consulting psychologist. The attorney also provided the judge with a report strongly favoring probation from a consulting psychiatrist selected by the prosecutor. Nonetheless, the judge refused to commit to the more lenient disposition petitioner sought.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
Petitioners verified statement of disqualification also claimed that on September 10, 2007, petitioners counsel learned that a motion to disqualify Judge Getty had been filed in another, unrelated, child molestation case. Researching the basis for that motion, counsel learned that defense counsel in that case, Sara Johnson, filed a declaration reciting that Judge Getty had stated she does not believe that any alleged victim of child molestation would make up such an allegation. Johnson also declared that the judge had recounted that she had been very close to someone who had been molested—a fact that she learned when that individual was on her death bed—and which explained much about that persons life. Judge Getty also stated that she herself had a young child. On the same day, the judge also stated to petitioners counsel in this case that child molestation cases, which tend to elicit strong emotions, are not her favorite type of trial.
On October 15, 2007, respondent superior court struck the statement of disqualification, concluding that "[p]etitioner fails to disclose any objective facts on the face of the petition that disclose a legal ground for disqualification . . . ." The court reasoned that (1) "[s]tatements made by a judge expressing a view on legal or factual issues presented in the proceedings are not grounds for disqualification," (2) the Johnson declaration was not "by a party to the instant action and therefore cannot be used in support of the instant petition to disqualify," and (3) the declaration is irrelevant because the petition to disqualify the judge in the previous child molestation case had been denied. In the alternative, Judge Getty also filed an answer to the statement of disqualification.
Petitioner then filed this petition; we requested informal briefing and the Attorney General filed an informal response on November 6; petitioner filed his reply on November 9, 2007. The Attorney General "takes no position on the merits of the petition." He does, however, oppose the issuance of a stay, believing "this matter can be resolved in advance of [the December 12] trial date." His paramount interests are that the trial not be unnecessarily delayed and that any resulting judgment be error-free. In his reply, petitioner concurs with the Attorney General that this matter should be expeditiously resolved, but renews his request for a stay to ensure that the case is not tried before Judge Getty, with the attendant risk of a retrial were the judge ultimately disqualified.
Section 170.1, subdivision (a)(6)(A)(iii) provides for the disqualification of a judge if "[a] person aware of the facts might reasonably entertain a doubt that the judge would be impartial." When a judge refuses to disqualify him or herself the disqualification issue is to be determined by another judge, either agreed upon by the parties or appointed by the Judicial Council chairperson or vice-chairperson. (§ 170.3, subd. (c)(5).) There is, however, a limited exception to the rule that no judge rule upon his/her own disqualification. The judge who is the subject of the disqualification motion may strike the statement of disqualification if it is untimely or if, on its face, it discloses no legal grounds for disqualification. (§ 170.4, subd. (b).) Here, Judge Getty struck the application solely on the ground that the statement discloses no legal grounds for disqualification. She contends that a person aware of all the facts would not reasonably doubt her impartiality.
With certain inapplicable exceptions, the fact that a judge has "in any capacity expressed a view on a legal or factual issue presented in the proceeding" is not a basis for disqualification. (§ 170.2, subd. (b).) Judge Getty was entirely correct that her refusal to agree to a probationary or low term sentence, or to make any other disposition in the event of a plea, is not a basis for disqualification. Motions to disqualify are not an appropriate recourse when a party is displeased with views a judge may express as to the proper disposition of a case upon a determination of guilt. Moreover, to the extent the petition to disqualify is based on the judges refusal to commit to the probationary sentence, the petition was untimely, since it was not brought as "at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification." (§ 170.3, subd. (c)(1).)
However, the petition here was based on additional facts the sufficiency of which the challenged judge may not herself determine. Whether the statements attributed to Judge Getty contained in the Johnson declaration, or other comments made by her in this case, would cause a person aware of those statements to entertain a reasonable doubt of her impartiality in this case must be determined by another judge in accordance with the provisions of section 170.3, subdivision (c)(5).
The Attorney General, in commenting on the instant case, cites two cases finding no legal grounds for disqualification: People v. Panah (2005) 35 Cal.4th 395 (institutional bias of all judges in the Van Nuys courthouse not legal grounds for disqualification) and McCartney v. Superior Court (1990) 223 Cal.App.3d 1334 (fact that judge graduated from defendant university not grounds for disqualification). Distinguishing those cases, the Attorney General states, "it would appear a more probing assessment of the strength of [the] allegations [in this case] would be required to reject them as without legal basis."
The superior court struck the Johnson declaration based on the authority ofAvelar v. Superior Court (1992) 7 Cal.App.4th 1270, 1274, footnote 4. Avelar, however, stands for the proposition that only a party to the action or the partys attorney may file a section 170.1 challenge. It does not suggest that a moving party cannot rely on facts learned from a third party to support the challenge. Avelar is inapposite.
More problematic is the fact that the statements contained in the Johnson declaration apparently were reviewed previously by a second judge in the context of another section 170.1 challenge to Judge Getty, and that judge denied the challenge. However, the record contains few details about the other case, other than that it involved child molestation and the defendants lawyer believed that Judge Getty was being overly severe in sentencing discussions. On this record, we cannot say that because the disqualification motion was denied in the earlier case, a person aware of the facts of this case, which of course differ from those in the earlier case, necessarily would not reasonably entertain a doubt regarding the judges impartiality in this case. A second judge is required to make an objective determination of this question. We intimate no opinion as to its proper resolution.
Having determined that the order to strike should be vacated, we see no reason at this time to stay the proceedings below. With dispatch, this matter can be fully resolved before the scheduled trial, in which case a stay will be unnecessary. If the matter is not resolved before the trial date, we trust the superior court will act appropriately under the circumstances.
In order for this matter to be fully resolved before the scheduled trial, the remittitur must be issued promptly. Thus, we encourage the parties to consider a stipulation for its immediate issuance. (See Cal. Rules of Court, rule 8.272(c).)
This court may employ the accelerated Palma procedure "when petitioners entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue . . . or when there is an unusual urgency requiring acceleration of the normal process." (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Here, the Attorney General does not oppose the merits of the petition. Both he and the petitioner express concern that this matter be dealt with expeditiously—suggesting urgency requiring a speedy disposition. A prompt decision is desirable in order to preserve the December 12 trial date. Consequently, let a peremptory writ of mandate issue commanding respondent superior court to vacate its October 15, 2007 order to strike, thereby having the matter assigned to an appropriate judge to rule on the Statement of Disqualification. This decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)
We Concur:
Siggins, J.
Horner, J.