Ct.App. 4/1 D046394, D048111, D049238 San Diego County Super. Ct. No. SCD171601. Robert F. O'Neill.
The opinion of the court was delivered by: Moreno, J.
We granted review in this case to determine whether the appearance of bias by a judge requires recusal under the due process clause of the federal Constitution. (U.S. Const., 14th Amend.) While this matter was pending the United States Supreme Court filed its opinion in Caperton v. A.T. Massey Coal Co., Inc. (2009) __ U.S. __ [129 S.Ct. 2252]. The court's exhaustive review of its jurisprudence in this delicate realm of constitutional law compels the following conclusions: while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist " `the probability of actual bias on the part of the judge or decisionmaker [that] is too high to be constitutionally tolerable.' " (Id. at p.__ [129 S.Ct. at p. 2259].) Where only the appearance of bias is at issue, a litigant's recourse is to seek disqualification under state disqualification statutes: "Because the codes of judicial conduct provide more protection than due process requires, most disputes over disqualification will be resolved without resort to the Constitution." (Id. at p.__ [129 S.Ct. at p. 2267].) Finally, the court emphasized that only the most "extreme facts" would justify judicial disqualification based on the due process clause. (Id. at p.__ [129 S.Ct. at pp. 2265, 2266].)
The Court of Appeal held that the circumstances of this case required the trial judge to recuse himself and his failure to do so violated defendant Marilyn Kaye Freeman's due process rights. We conclude, however, in light of Caperton, that this case does not present the "extreme facts" that require judicial disqualification on due process grounds. Accordingly, we reverse the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying the defendant's offenses were succinctly summarized by the Court of Appeal: "On September 10, 2002, [defendant'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. [Defendant], 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. [Defendant] 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 [defendant] guilty of solicitation to commit kidnapping, residential burglary, stalking, and misdemeanor child endangerment and battery. She was sentenced to prison for six years."
On the morning of December 19, 2002, defendant, then in custody, appeared before Judge Robert O'Neill for a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118, in which she sought to replace her court- appointed counsel. After the court granted her motion, the issue of bail arose. Judge O'Neill said he would set the matter for bail review before another judge. After some further colloquy, defendant said, "I was wanting to bring up at that hearing the possibility of house arrest there is [sic] rumors that are not really charges that I have been stalking poor Judge Elias." (Judge Elias was the judge presiding over the dependency court proceeding involving defendant and her daughter.)
Judge O'Neill replied that he was aware of the "allegation," and commented, "Judge Elias and I worked together in the District Attorney's office. I have known Judge Elias for 23 years. He is a friend of mine, and that is another reason I want to set the bail review back in front of Judge Szumowski who originally set bail. [¶] There is no good cause to change bail, and I really think based on what I have been told I would recuse myself from the bail issue."
After further discussion on scheduling matters, defendant again raised the bail issue, telling the court she had been advised at arraignment to seek bail review before someone other than Judge Szumowski. Judge O'Neill told her she should discuss the situation with her newly appointed counsel "in light of the allegations made - just made concerning Judge Elias. In that situation a judge who is not a member of the bench should hear a bail review. That would be a retired judge or a judge sitting on assignment." Defendant observed that Judge Elias had not recused himself because "he made it clear he doesn't think there is any substance to those allegations," and said, "Do you think in lieu of all this craziness if I - that just house arrest would be a good idea?" The court replied, in part, "What I am doing as to your bail motion, I am recusing myself. I don't think I'm the person that should hear it."
Between January 6, 2003, and September 3, 2003, various judges of the San Diego Superior Court - excluding Judge O'Neill - presided over hearings in defendant's case related to appointment of counsel, bail review, discovery, and other matters. On September 3, 2003, defendant's case was assigned to retired Judge Charles Jones for all purposes. Judge Jones presided over defendant's preliminary hearing and bound her over for trial.
At a May 14, 2004 status conference, Judge Jones stated on the record that there was a discussion in chambers about why the matter had been assigned to him. "And the district attorney has advised me of how and why that came about and the reason. The reason no longer exists, and it does not look like there's been a recusal of the San Diego County Superior Court, so I will put another couple of other matters on the record and transfer the matter back to [Judge Deddeh]."
Later that day, Judge Deddeh explained, "With regard to the recusal issue, it is my understanding that it was communicated to Judge Jones that the only reason the bench was being recused is because there is a possibility that on... [defendant's] computer... there was some indication that she was stalking Judge Elias. Apparently the computer has been reviewed.... And... apparently [Judge Elias is] not a victim in this case. And so there is apparently no reason for the bench to recuse itself." Ultimately, Judge Deddeh reassigned the case to Judge O'Neill. Defendant reminded the court that "he already recused himself. He recused himself because he is a good friend of Judge Elias." Judge Deddeh replied, "He can do that when I send it up there." Defendant said, "Okay." Judge Deddeh added, "We'll see whether or not this is ...