CURLE v. Andrew Madison Gleason et al., Real Parties in Interest.

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Court of Appeal, Third District, California.

Wilson CURLE, a Judge of the Superior Court, Petitioner, v. SUPERIOR COURT of Shasta County, Respondent. Andrew Madison Gleason et al., Real Parties in Interest.

No. C031822.

Decided: May 25, 1999

No appearance for Respondent. Berg & Associates, Eric Alan Berg, Redding, Gary Roberts, Los Angeles, Janet S. Manrique, for Real Party in Interest, Andrew Madison Gleason. No appearance for Real Party in Interest, the People.

Petitioner Wilson Curle, Judge of the Shasta County Superior Court, seeks a writ of mandate to review the order disqualifying him from any further involvement in the prosecution of real party in interest Andrew Gleason (defendant).

The order was issued by respondent superior court, Judge Norris Goodwin, assigned, (hereafter superior court) after defendant filed a statement of disqualification pursuant to Code of Civil Procedure sections 170.1 and 170.3.1  The superior court ordered that Judge Curle be barred from further participation in Shasta County action number 98F1725 because “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)(C).)

The order was based primarily on the superior court's determination that a negotiated plea agreement between defendant and the People, which Judge Curle accepted, whereby defendant pleaded guilty to a violation of Penal Code section 288.5, included an “implied” promise that the probation officer's sentencing recommendation would be adopted.

On the assumption that such a promise had been made, the superior court concluded that Judge Curle's subsequent indication that he may not impose the suggested sentence could be construed by an objective observer as demonstrating an improper bias in favor of the People.

Judge Curle contends that issuance of the disqualification order was an abuse of discretion.   We agree, and shall issue the writ.


On May 13, 1998, defendant appeared before Judge Curle in Shasta County case number 98F1725 for the purpose of withdrawing his plea of not guilty to the pending charges, and instead entering a negotiated plea of guilty to one count of violating Penal Code section 288.5.   A written statement memorializing the terms of the plea bargain was signed by the defendant, the district attorney and Judge Curle.   It includes, inter alia, various terms and understandings related to possible sentences.   Both the written agreement, and the transcript of the oral proceedings regarding the taking of the plea, reflect the parties' understanding that the matter was to be referred to the probation department for an evaluation pursuant to Penal Code section 288.1 and a recommendation as to sentencing.   It was further stipulated that the court, upon receipt of that report, retained discretion to sentence defendant to anything from probation, with a suspended sentence of 16 years in state prison, to an immediate commitment to state prison for “no more than 12 years․”   Defendant initialed each of these provisions in the written agreement, in addition to signing the document at its end, and acknowledged on the record that he was aware of, and accepted them.   In addition, he was asked by the district attorney whether:  “You also understand that under this plea agreement there is no guarantee whether or not the Court would send you to state prison.   It's ultimately up to the judge to make that decision, do you understand that?”   He responded:  “Yes.”

The probation officer's report was filed on August 28, 1998.   It recommended the defendant receive a sentence of 16 years in state prison, with execution suspended, and be placed on formal probation for five years.

On September 15, 1998, a hearing was held to consider the report.   At the outset Judge Curle noted the report “does follow the agreed upon disposition that the defendant and the People entered into.”   He also indicated that “ ․ it would be my tentative plan to follow the recommendation made by probation, ․” and then gave both counsel an opportunity to speak.   The deputy district attorney commenced by stating her belief the recommendation of probation was based upon the reporting officer's mistaken impression that an immediate state prison commitment was not an option under the plea bargain.   She then voiced the People's position that the circumstances of the admitted offense and defendant's background suggested that probation was not appropriate and the sentence should be an immediate 12-year state prison term, the maximum contemplated by the terms of the agreement.

At the commencement and conclusion of the district attorney's comments, defense counsel objected to her advocating in favor of a prison sentence on the ground that to do so was itself a violation of the plea agreement.   According to defense counsel, it was his belief or impression that “the negotiated disposition encompassed an agreement with the District Attorney's office to-to rely on the recommendation of probation, whatever that be.”

With that objection on the record, Judge Curle permitted both sides to argue their positions regarding the contents of the probation report and the appropriate sentence.   He also permitted, without objection, an attorney representing the victim's mother to convey the mother's concern about the effect defendant's crime has had on the victim and her opinion that defendant should be confined in state prison.

After hearing from the parties, Judge Curle indicated that the points made and views expressed caused him to reconsider his initial inclination to follow the recommendation of probation;  in fact, he noted that he had actually harbored reservations from the outset about the wisdom of such a sentence.   He then stated “So at this point I'm going to choose not to follow the recommendation, choose not to grant probation.   I did make a request earlier and I'll ask if you still want that request of sentencing hearing [sic].”  Defense counsel responded affirmatively, and a formal sentence hearing was scheduled.

The sentencing hearing was never held, however, because on December 9, 1998, defendant filed his motion to disqualify Judge Curle.   Judge Curle refused to remove himself from the case, and instead responded with his answer to defendant's statement of disqualification, as required by section 170.3, subdivision (c)(3).

Judge Norris Goodwin was assigned to decide the question of disqualification, and on January 26, 1999, ordered that Judge Curle be disqualified.

A petition for writ of mandate was filed with this court within the time permitted by section 170.3., subdivision (d).   We issued an alternative writ.



We first address defendant's contention that this court is without jurisdiction to grant the requested relief because Judge Curle does not have “standing” to seek review of the order disqualifying him.   We disagree.

 Our review of the relevant statutory provisions and the reasoning found in several cases which have alluded to this issue without actually resolving it, leads us to conclude that a judge disqualified for “cause” pursuant to sections 170.1 and 170.3 may properly petition the appellate courts to set aside the order.

We begin with section 170.3, subdivision (d), which provides:  “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding.”  (Emphasis added.)

Defendant argues that Judge Curle is not a “party” to the underlying criminal proceedings, and is therefore precluded by the quoted language from maintaining the present writ petition.   However, we construe the “proceeding” referred to in subdivision (d) as being the disqualification proceeding itself, as distinguished from the action in which the challenged judge has been barred from presiding.

In general, of course, a lower court judge, even though named as a respondent, is a neutral party in an extraordinary writ proceeding brought in an appellate court to challenge an order rendered by that judge.   As such, the lower court judge's duty of impartiality and neutrality makes inappropriate any effort by that judge to contest the writ petition.   The rationale for, and scope of, this principle, were recently explicated by the court in Ng v. Superior Court (1997) 52 Cal.App.4th 1010, at pages 1016-1020, 61 Cal.Rptr.2d 49, and we need not repeat that discussion here.

Beyond that overview, however, the Ng opinion includes some useful comments relating to the issue we now consider.   In Ng the appellate court had before it a writ petition raising issues contesting a ruling by the trial judge on a matter in the underlying case, and, in addition, an order denying a motion to disqualify that same judge.   The trial judge had filed a return and declaration in support of his own decision, which was ordered stricken by the Court of Appeal.   The judge's arguments in the appellate court did not, however, address the disqualification issue.   In pointing out this omission, the Ng court clearly indicated its belief that he could have done so, stating:  “Judges have standing to contest attempts to disqualify them.   Code of Civil Procedure section 170.3, subdivision (c), contemplates an adversary proceeding in which the judge may take an active part if litigants seek to disqualify a judge for cause.   The judge's participation in the appellate process concerning such issues is therefore also appropriate.  (Citations omitted.)”  (Id. at p. 1019, 61 Cal.Rptr.2d 49.)

It is true, as defendant points out, that neither Ng or the cases it cites are directly analogous to the present one, i.e., none arise out of situations where a disqualified judge is petitioning the appellate court for relief on his own behalf.   Nonetheless, we find the Ng court's reasoning persuasive, and believe it supports our conclusion that a disqualified judge may personally petition the appellate court for relief from the order.   Indeed, that result is the obvious logical extension of Ng's analysis permitting active participation by the challenged judge in other contexts.   It would certainly be anomalous to maintain that a judge who is the target of a motion to disqualify for cause may file an answer and oppose that motion in the trial court, or argue in the appellate court in support of his continuing involvement when review of an order denying disqualification is sought, but deny that judge the opportunity to advance the same arguments in an effort to retain his position if the motion to disqualify is granted.

This analysis finds direct support in the interpretation given section 170.3, subdivision (d), in Estate of DiGrazia (1993) 13 Cal.App.4th 681, at pages 684-685, 16 Cal.Rptr.2d 621.   There, appellant Anderlini had sought to disqualify Judge Taylor from presiding in a pending civil action.   The superior court rejected Anderlini's disqualification statement, after which it awarded Judge Taylor sanctions under section 128.5, finding the disqualification motion was taken in bad faith, was frivolous, or was intended solely to cause unnecessary delay.   Anderlini appealed, arguing the penalties should not have been imposed because section 128.5 allows sanctions to be awarded only to reimburse attorney's fees or expenses “incurred by another party․”  (See Estate of DiGrazia, supra, at p. 684, 16 Cal.Rptr.2d 621.)   Anderlini argued that since Judge Taylor was not a party to the underlying litigation the sanctions award was not authorized.   The Court of Appeal rejected this contention, and because the reasoning it applied in doing so is equally applicable here, we quote it at length.   The court stated:

“We disagree [with Anderlini].   The disqualification proceeding is not a part of the main action, but is ancillary to it.   In that ancillary proceeding, the judge appears as a party for all practical purposes.   The judge must file a verified answer to the statement of disqualification.   If the judge fails to answer, he or she in effect defaults;  the failure to answer results in the judge's removal.   If a hearing is required, the judge is entitled to appear at the hearing and argue the question.   The proceeding is held before another judge, who decides only the question of disqualification, and does not preside over the underlying action for any purpose.   In the proceedings [on disqualification] the parties to the underlying action who have not challenged the judge have only a limited role (§ 170.3, subd. (c)).  In sum, the disqualification proceeding amounts to a separate trial before an impartial court of an issue distinct from those in the main action, and in which the parties are the judge and those who seek disqualification.   We hold that in such a proceeding, the challenged judge is a “party” within the meaning of section 128.5, and as such is entitled to seek sanctions․”  (Id. at pp. 684-685, 16 Cal.Rptr.2d 621, emphasis added.)

For the same reasons, we hold that the challenged judge is a “party” within the meaning of section 170.3, subdivision (d), and as such may seek a writ of mandate upon entry of an order of disqualification.


We turn now to the merits of Judge Curle's petition.   As we explained at the outset, the order of disqualification is based primarily on the premise that Judge Curle, the People, and the defense had agreed to be bound by the sentencing recommendation of the probation officer.   With that as its starting point, the superior court concluded that in light of the assumed agreement or promise, and given Judge Curle's announcement at the commencement of the September 15, 1998, hearing that his “tentative plan” was to adopt the recommendation of probation, the judge's alteration of his sentencing choice after hearing objections from the district attorney and a representative of the victim's family gave rise to an appearance of bias in favor of the People.

 The test for determining whether disqualification is required under section 170.1, subdivision (a)(6)(C) is an objective one, and turns on whether a reasonable member of the public, aware of all the facts, would fairly entertain doubts concerning the judge's impartiality.   Actual bias is not required.  (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104, 216 Cal.Rptr. 4;  and see Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170, 28 Cal.Rptr.2d 383.)   However, “[w]hile this objective standard clearly indicates the decision on disqualification not be based on the judge's personal view of his own impartiality, it also suggests that the litigants' necessarily partisan views not provide the applicable frame of reference.”  (United Farm Workers of America v. Superior Court, supra, at p. 104, 216 Cal.Rptr. 4, fn. omitted.)   On review of an order deciding a motion to disqualify, the question is one of law if the facts are not in dispute.  (Flier v. Superior Court, supra, 23 Cal.App.4th at p. 171, 28 Cal.Rptr.2d 383.)

 Here, the superior court's order disqualifying Judge Curle hinges on a fact which is controverted, i.e., the existence of an agreement by the parties and the court to follow the probation officer's sentencing proposal.   While neither Flier or any other decision we have discovered specifically addresses the appropriate scope of review when material facts underlying the disqualification issue are disputed, we see no reason not to apply in this context the general principle that, while we must view the evidence in the light most favorable to the decision below, factual determinations are binding on a reviewing court only when supported by substantial evidence.  (See, e.g., People v. Alvarez (1996) 14 Cal.4th 155, 182, 58 Cal.Rptr.2d 385, 926 P.2d 365.)   Defendant, in his return to the alternative writ, has acknowledged that this is the correct standard.

 Our examination of the present record convinces us there is no substantial evidence to support the existence of the essential fact relied upon by the superior court in arriving at its ruling that Judge Curle must be disqualified.   Furthermore, even if there was evidence of the disputed agreement, the subsequent decision by Judge Curle to reject the probation officer's recommendation would nonetheless have been a proper exercise of judicial discretion expressly reserved to the judge by the written plea agreement and acknowledged by defendant at the change of plea hearing.

As our previous description of the proceedings below has demonstrated, there is no hint in the record of a promise, express or implied, that the probation officer was in effect delegated exclusive authority to determine the appropriate sentence.   Nor is there anything from which one might reasonably infer that the district attorney or Judge Curle would be precluded from objecting to, criticizing, or refusing to follow the officer's evaluation and conclusion.   To the contrary, the written agreement and reporter's transcript of the change of plea proceedings unambiguously establish that the court retained the right to impose any sentence within the range bargained for, or even reject the agreement in its entirety.   Furthermore, defendant was well aware the court had made no commitment to adopt the recommendation of the probation report, as is evidenced by his affirmative response, which we noted above, when admonished at the change of plea hearing that:  “You also understand that under this plea agreement there is no guarantee whether or not the Court would send you to state prison.   It's ultimately up to the judge to make that decision, do you understand that?”

 Similarly, the district attorney's argument that a state prison term should be imposed, rather than the recommended grant of probation, did not abridge any term of the plea agreement we can discern.   The negotiated plea allowed for a sentence ranging from probation to 12 years state prison, and the district attorney did nothing more than ask Judge Curle to opt for the maximum prison commitment within the agreed range.   This was not a violation of the terms of the bargain;  rather, it was proper, and possibly effective, advocacy.  (We say “possibly” because defendant has, of course, not been sentenced yet and Judge Curle still retains the discretion to impose any punishment contemplated by the negotiated plea.)

 In sum, the fact that Judge Curle has stated his intention not to adopt the probation officer's recommendation is not an indication of improper bias.  “ ‘A judge may not properly try a case where he has formed partisan opinions from outside sources, but a trial judge will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case.   These opinions and expressions thereof may be critical or disparaging to one party's position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification.’ ”  (Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 84, 147 Cal.Rptr. 44;  and see People v. Yeager (1961) 55 Cal.2d 374, 391, 10 Cal.Rptr. 829, 359 P.2d 261;  Kreling v. Superior Court (1944) 25 Cal.2d 305, 312, 153 P.2d 734.)

 In his return to our alternative writ, defendant points to passages in the reporter's transcript of the September 15 hearing as evidence that an otherwise unwritten and unspoken agreement to be bound by the probation report did exist.   We are not persuaded.   Defendant directs our attention to statements by his counsel made in conjunction with an objection to the district attorney's argument for a state prison term.   Basically, those statements are couched in terms of defense counsel's belief or understanding as to what had been negotiated.   Suffice it to say that statements and arguments of counsel are not evidence, and cannot support the existence or absence of any fact.  (See People v. Ruster (1974) 40 Cal.App.3d 865, 874, 115 Cal.Rptr. 572;   Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090-1091, 223 Cal.Rptr. 410.)   Furthermore, we note that while defendant submitted declarations in support of his motion to disqualify Judge Curle, they are devoid of allegations claiming the terms of the plea agreement include the restriction on sentencing discretion which he now argues was “implied.”

Defendant also urges that an exchange between Judge Curle and defense counsel regarding the district attorney's hypothetical right to withdraw from the plea agreement suggests the promise he alleges as to sentencing was actually made.   When the district attorney indicated her intention to argue against the grant of probation, defense counsel (Mr. Webster) and the court had the following exchange:

“Mr. Webster:  Well-well, my previous statement still applies and I would renew my objection to the District Attorney making this argument at all.

“The Court:  [Judge Curle] I don't understand.   I mean you are saying the District Attorney can't renig [sic] on an agreement?  “Mr. Webster:  That's what I'm saying.”

Defendant apparently would have this court read into Judge Curle's inquiry an implicit acknowledgment that the district attorney's anticipated arguments would in effect be a violation of the negotiated plea.   We do not see it that way.   To the contrary, it appears to us that Judge Curle was, as he explained, simply trying to understand what defense counsel's ground of objection was.   Neither the Judge's question, or any subsequent statements from the bench, can reasonably be construed as a recognition that the alleged sentencing promise existed, much less that it was being violated.   Furthermore, this brief question and answer preceded the district attorney's argument, which, as it turned out, requested a sentence within the terms of the plea bargain.   Therefore, even if Judge Curle was concerned about a possible attempt to renege on the negotiated plea, his question was posed in anticipation of a potential event that ultimately did not materialize.

 Finally, we note that defendant's original statement of disqualification was based almost entirely upon Judge Curle's having noted for the record that, shortly before the hearing of September 15, he had made a passing mention to the supervising probation officer indicating some concerns about the report in defendant's case, which he had just reviewed.   However, the superior court found that not to be a ground for disqualification, and the incident has not been referred to by defendant in his petition to this court.   Accordingly, we deem the point abandoned, and have no call to address it in the present proceedings.

Let a peremptory writ of mandate issue directing respondent superior court to vacate its order disqualifying Judge Curle from further participation in Shasta County case number 98F1725, and enter a new order denying defendant's statement of disqualification.   The alternative writ is discharged.


1.   Unless otherwise specified, further statutory references are to the Code of Civil Procedure.

BLEASE, Acting P.J.

NICHOLSON, J., and MORRISON, J., concur.

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