WARREN v. Thomas W. Taylor, Real Party in Interest.

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Court of Appeal, First District, Division 5, California.

James L. WARREN, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; Thomas W. Taylor, Real Party in Interest.

No. A081080.

Decided: June 05, 1998

Louise H. Renne, City Attorney, Patrick J. Mahoney, Chief Deputy City Attorney, Daniel T. Bernhard, Matthew D. Davis, Deputy City Attorneys, for Petitioner. Jeff Brown, Public Defender, Peter G. Keane, Chief Assistant Public Defender, Paul F. DeMeester, Deputy Public Defender, for Real Party in Interest.

This matter is before us on a petition for writ of mandate filed by the Honorable James L. Warren, Judge of the Superior Court of the City and County of San Francisco.   In a major felony case in which he was the assigned trial judge, Judge Warren was challenged for cause (Code Civ. Proc., § 170.1) by counsel for one of the defendants, Deputy Public Defender Paul F. DeMeester, representing defendant/real party in interest Thomas W. Taylor.   The challenge was assigned by the Chief Justice to Retired Municipal Court Judge Mary C. Morgan, who granted the challenge and disqualified Judge Warren for cause.   Judge Warren seeks a writ of mandate to compel Judge Morgan to vacate her order.   We will grant Judge Warren's petition because the record does not support his disqualification.

background

Codefendants Taylor and Michael Robison were charged with kidnapping, first degree burglary, assault with a handgun, robbery, and possession of a firearm by an ex-felon.   Taylor was represented by DeMeester, Robison by Malcolm Smith.   Judge Warren was the assigned trial judge.

The grand jury testimony has been a matter of record before us in several prior writ matters.   We take judicial notice of the transcript of the grand jury proceedings, which reveals probable cause to support the charges, including evidence that the defendants forced their way into the home of a San Francisco resident and were apprehended by the police shortly thereafter.   At the time of their apprehension, Taylor's van contained numerous items of incriminating evidence.

Taylor's and Robison's convictions would result in life terms.   DeMeester told Judge Warren the evidence against his client was overwhelming, adding that his task during trial would be “devoted 85% to creating a record for appellate review.”

Due to publicity surrounding the case and the apparent abundance of evidence against the defendants, Judge Warren crafted an initial voir dire plan focusing on potential jurors' ability to disregard press accounts, and on their understanding of such fundamental legal principles as the presumption of innocence, the burden of proof, and the privilege against self-incrimination.   Judge Warren permitted the defense to use a jury questionnaire, and to allow the defense to question the jurors with regard to these principles.

After several days reviewing jury questionnaires, in which the court addressed over 300 jurors and ruled on challenges for cause, the jury selection process reached the peremptory challenge stage.   Judge Warren allowed each side 30 peremptory challenges, with the defense challenges allocated as 20 joint challenges and 5 individual challenges for each defendant.

Despite the rule that peremptory challenges may not be exercised in a racially discriminatory fashion (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (Wheeler);  see Batson v. Kentucky (1986) 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (Batson )), DeMeester exercised all five of his individual peremptory challenges against female panelists of Asian descent.2  The preliminary hearing transcript shows, as DeMeester conceded below, that one of the victims in the criminal case is an Asian female.   In response to each of DeMeester's challenges, his cocounsel, Smith, objected on the basis of Wheeler.   However, Smith objected to DeMeester's striking from the jury three prospective jurors whom Smith had previously, but unsuccessfully, tried to remove for cause.   After a few more peremptory challenges were exercised, the court recessed for the day.

After the jurors had been excused Judge Warren remained on the bench with the People, DeMeester, Smith, and both defendants present.   Judge Warren asked, “did I understand that somebody wanted to put something on the record?”   Smith replied, “Well, I had made Wheeler motions,” and Judge Warren observed that counsel had made his first Wheeler objection when the first Asian juror had been peremptorily challenged-before a pattern of striking Asian female jurors had emerged.

Smith replied, “That is correct.”   Judge Warren, commenting on what he had observed, said:  “Mr. Smith, I want to tell you I am extremely upset about this.   I don't know what is going to happen in the normal course, but I will put on the record the following․  [¶] I will point out for the record that as you two [DeMeester and Smith] have been challenging, the two of you have been talking, nodding and in obvious agreement have decided on who the next person is going to be.   This is apparent to the Court, there is no question in my mind whatsoever about it.  [¶] It is also apparent to the Court that for reasons that are not entirely clear but may be clear perhaps not now but at some proceeding in the future, all of the Asians have gone on Mr. Taylor's side with Mr. DeMeester making the challenge, and you [Smith] made your first Wheeler objection at the time of the very first person.”

Smith responded, “Correct.”

Judge Warren continued:  “And then you made a subsequent objection as a matter of rote response to every other one after having discussed it first with Mr. DeMeester.   And I am extremely annoyed and upset at what appears to me to be a conspiracy between the two of you to throw this record and to throw this jury by using improper racial designations ․ to get this panel dismissed.   I am so annoyed.   You people are very good lawyers.   I have never seen anything like this before.   There appears very much to me to be a concerted effort by the two of you to build error into this record and to get the panel dismissed, and I find it-I don't know whether that is true or not.   It is my impression from the way that you have gone about this.”

DeMeester “object[ed] strongly to the characterization of a ‘conspiracy,’ ” arguing, “The Court takes physical body movements of counsel and construes them for something that they are not.”   The exercise of joint defense peremptory challenges “puts an obligation and an effective assistance of counsel duty upon the two of us, Mr. Smith and myself, to confer with one another as to the use of our respective challenges.  [¶] Now, the agreement you may have seen, the nodding you may have seen is we have made an agreement beforehand between the two of us that we would tell each other whether we would-wanted to exercise a joint challenge or an individual, so we have a mutual system where we say what it is that we are about to put on the record so that there is no surprise because after all, we have to work together on the joint challenges and, therefore, we must confer, and the nodding that the Court sees is nodding as to that.   I have not asked for Mr. Smith's approval, nor do I need his approval to exercise the Taylor individual or separate challenges and I have not sought such approval.  [¶] Now, the Court has construed and has indeed found facts of-”

At which point Judge Warren interjected:  “I have found no facts.   I have simply stated what I have observed:  nodding agreement, looking at each other's notes, passing them back and forth and then a statement of a challenge against the person who has an Asian surname followed by a leisure[ly] ‘Objection, Wheeler.’ ”  (Italics added.)

The Court also stated:  “[A]ssuming for the purposes of this argument that the Taylor challenges by themselves stand as an individual exercise of attorney discretion, the Court has no choice but to find that every one of the people challenged is Asian․”

After additional colloquy, Judge Warren found a prima facie case of Wheeler violation:  “I find that as far as Mr. Taylor is concerned,-and without deciding whether or not that is sufficient-that a prima facie case has been made with respect to” the five female Asian jurors peremptorily challenged by DeMeester.   Accordingly, Judge Warren told DeMeester “the burden shifts to you to justify the dismissal of [those prospective jurors].”

DeMeester objected “to the burden being put on [him],” contending he did not agree with Georgia v. McCollum (1992) 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (McCollum ), which applied the Wheeler rule to defense counsel.   DeMeester refused to justify his challenges, on the ground that the majority opinion of the United States Supreme Court was “wrong in our opinion in including the criminal defense side under the rubric of being state [actions], and so I object to that.”

 After Judge Warren suggested DeMeester was avoiding the question of justifying the five challenges, DeMeester purported to justify the five challenges “based on the record before me,” persisting in his position that he was not obligated to state his reasons for exercising his challenges:  “I know of no case that tells me that I should reveal my mental state to the Court on this issue.” 3  Despite Judge Warren's repeated admonitions that he was charged by law to explain the exercise of his peremptory challenges, DeMeester refused, simply relying on “ the record.”

Judge Warren again expressed his concern that there appeared to be “an effort by the defense jointly in concert with each other to derail this trial by using racial designations to keep this case from going to a jury․   It all fits together and suggests very much that there is conduct on the part of defense counsel that is less than comporting with the standards required for a fair and impartial trial․   And I am not making any finding on that․”   Judge Warren again stated, “I am not making a finding that [DeMeester] has been uniformly excluding Asians.”

After Judge Warren again referred to the suspected use of race in the five challenges, and stated he “was not at all surprised” at the challenges to three of the prospective Asian jurors, DeMeester announced he was “starting to have a question whether this court can be impartial.”   Judge Warren replied, “I can be totally impartial.   I have a very serious question about whether or not counsel are trying to derail what has been a very laborious and I think painstakingly fair process for the benefit of your clients to select a jury that can fairly and impartially decide the facts of this case, and I think it is an interference with the process of this court if counsel ․ together are trying to come up with some way to derail the process for whatever purpose that may serve you.   I note that is the case.   I am very concerned about it.   I think that that is the picture that's being painted here and it is a disturbing one to me.”

DeMeester accused Judge Warren of having already determined that the five peremptory challenges were done on the basis of race, and claimed that Judge Warren “has seen facts and found facts.”   Judge Warren again denied he had made a finding, but stated the defense conduct “simply raises questions in my mind.”   He commented, “The People and Mr. Taylor and Mr. Robison are going to get a fair trial.   They are going to have a fair and impartial jury.   They are going to have a fair and impartial jury chosen by whatever standard you choose as long as it is not an improper standard.   I am not going to tolerate any conduct that intentionally seeks to derail the process.”

Since it was late Friday afternoon, Judge Warren put the matter over until the following Monday for hearing on Smith's Wheeler motion.   Judge Warren ordered supplemental briefing on the Wheeler issues by 8 o'clock Monday morning.

Prior to the Wheeler hearing on Monday morning, DeMeester filed a challenge under Code of Civil Procedure 4 section 170.1, subdivision (a)(6) to Judge Warren for alleged bias and prejudice.   DeMeester contended Judge Warren was “biased and/or prejudiced against defendant [Taylor] and/or defendant's counsel.”

DeMeester alleged that bias was evident from Judge Warren's comments and deportment at the Friday hearing after the jury was excused.   DeMeester's affidavit in support of his disqualification motion states:

“Based on pure conjecture and speculation, the Honorable James L. Warren proceeded to LIBEL both defense counsel, to ATTACK THEIR PROFESSIONAL REPUTATION AND INTEGRITY, and to otherwise DEFAME both defense counsel by accusing both counsel of conspiring to derail the trial.   By this attack on counsel, the Honorable James L. Warren further INFRINGED upon both defendants' rights to exercise their peremptory challenges jointly pursuant to [section 231, subdivision (a) ], which section makes it imperative that co-counsel confer with each other in order to provide constitutionally required effective assistance of counsel.   That counsel conducted their joint consultations in a cordial and civil manner IRKED the Honorable James L. Warren, who apparently requires two defense counsel in the same case to be at each other's throats when they may have a disagreement about the exercise of their joint peremptory challenges.” 5

DeMeester then accused Judge Warren of having “found certain facts to be true which were either not true or about which he had no idea whether they were true or not.”   Having allegedly found facts, according to DeMeester, Judge Warren “clung to their value even though he was shown to have been wrong.” 6

DeMeester's affidavit continues:

“By way of INSINUATION and INTERROGATION, the Honorable James L. Warren attempted to pry open the joint defense privilege held by both defendants and the work product of their respective counsel.” 7

“The Honorable James L. Warren ATTEMPTED TO INTIMIDATE and HARASSED both defense counsel by THREATENING proceedings against counsel personally for their vigorous defense of their respective clients and their use of peremptory challenges against jury venire members.” 8

“The Honorable James L. Warren was VERY ANGRY at both defense counsel and displayed HOSTILITY AND ANIMOSITY to both defense counsel.   The anger, hostility and animus shown were unjudicial and unjustified.”

“The Honorable James L. Warren BREACHED HIS PROMISE to the jury by not releasing them for the day until after 5 p.m., after having promised them that proceedings would run until 4:30 p.m. only.   This breach resulted in the jurors having to find their way to their cars or home in the dark around the Hall of Justice, which is not considered a safe area after dark.   This breach resulted in many jury panel members being visibly upset.   This breach was part of a larger plan by the Honorable James L. Warren to seat a jury as soon as possible, irregardless [sic ] of whether the prospective jurors are qualified.”

DeMeester then alleged that it “was clear by the demeanor” of Judge Warren at the Friday hearing that “his mind was made up as to what he would do.”

DeMeester's supplemental brief on the Wheeler issues was a two-page document, entitled “To Wheeler or Not to Wheeler,” in which he states, “defendant finds fault with the decision of [McCollum ], which case was wrongly decided.   Defendant joins in the dissenting opinions of Justices O'Connor and Scalia in McCollum.”   In a gracious nod to the supremacy clause, DeMeester admitted, however, that Judge Warren “may not be in a position to overrule the U.S. Supreme Court.”   Neither Shakespearean paraphrasing in pleadings, nor reliance on dissenting opinions of Supreme Court justices, can eliminate a lawyer's obligation as an officer of the court to accept the principle of stare decisis.   DeMeester made no attempt to distinguish McCollum;  he simply cavalierly disregarded its majority opinion, binding on the state courts, in favor of his personal preference for the dissent.

Judge Warren proceeded without objection to hear the Wheeler motion, while denying he was prejudiced against either DeMeester or his client.   Judge Warren asked DeMeester to fulfill his obligation to explain his challenges, starting with the first prospective Asian juror challenged.   DeMeester responded by asking if he could “make a few other observations.”   DeMeester then renewed his request, which had been previously denied, to postpone his explanations until he could review a transcript of the Friday jury selection hearing.   When Judge Warren asked him to continue, DeMeester then objected to the People's supplemental brief not being in proper form or on proper pleading paper.   When Judge Warren suggested “Perhaps we could move on to the reasons why you challenged [the first prospective Asian juror],” DeMeester responded:  “Well, I-I really-I think it's important.   It flows as a totality of my reasons here.”

Judge Warren advised DeMeester that the People's brief “doesn't have anything to do with your challenge to [the prospective juror],” and that it would be “helpful” if DeMeester “could focus on that.”   DeMeester then complained that the deputy district attorney had misspelled his name.   Judge Warren asked him for “substantive argument.”   DeMeester then took issue with two insignificant mistakes of fact in the People's brief.   He then announced he “want[ed] to get into some of the factual allegations made by [the deputy district attorney] in his papers.”

Judge Warren responded, “We don't need to get into that.   What we need to get into, sir, is the reason why you challenged [the first prospective Asian juror].   The rest of it is rather superfluous.”   After additional delay, DeMeester offered a reason for his challenge to the juror.   Following a further review of all five peremptory challenges, and a hearing that lasted over an hour and consumed 100 pages of transcript, Judge Warren granted Smith's Wheeler motion, finding that DeMeester had exercised his peremptory challenges in an unconstitutional manner.

The next day, Judge Warren filed his written response to DeMeester's disqualification motion, denying any bias or prejudice against DeMeester or his client.   He specifically denied the accusations that he was in a rush to seat a jury regardless of qualifications, that he had libeled or harassed counsel, or that he tried to pry into privileged matters.   With regard to the exercise of DeMeester's challenges, Judge Warren admitted that he “was annoyed and disappointed with what appeared to me to be a conscious attempt by counsel to build error into the record at the expense of five jurors who happened to be Asian ․ women.   The Court had by this time spent five days on voir dire, including one day set aside to study the questionnaires, and had spent considerable effort to ensure a scrupulously fair and impartial jury.   It was thus disturbing to see that effort appear to be thwarted by the very persons who so vigorously sought to have it put in place.   I deny that I intimidated, harassed or threatened either counsel.”

Judge Warren denied prejudging the Wheeler motion, noting he had granted the motion only at the conclusion of the Monday hearing, after further research by him and by three superior court research assistants, and after careful consideration of DeMeester's belated explanations of his challenges.

Judge Warren regretted he “did appear angry and irritable” at the Friday hearing, and apologized.   However, he still believed he had observed conduct of counsel which was “irregular and appeared to be deliberately designed to create error in the record in this case.”   He also asserted his impartiality, and “expressly den[ied] each of Mr. DeMeester's allegations of bias or prejudice, of inconsistent or partial treatment, and of hostility towards counsel.   They are untrue in all respects.”

DeMeester filed a reply memorandum in which he insisted Judge Warren had made factual findings at the Friday hearing, and had essentially prejudged the Wheeler motion.   DeMeester responded to Judge Warren's denial of making factual findings with the phrase, “Come on now!”   He also accused Judge Warren of being “wrong” about certain facts;  of threatening, harassing, and intimidating defense counsel;  of having “lost his cool, [and having been] unable to contain his anger at the defense”;  and of having libeled DeMeester by accusing him of trying to derail the trial.   He also contended that in his emotional state of anger Judge Warren prejudged the Wheeler motion;  had thereby “placed himself in a position that he later humanly could not back away from”;  and had granted the Wheeler motion to “sav[e] face, so to speak.”   DeMeester's final thrust was, this “may be a human reaction, but it is unbecoming of a judge.”

After additional declarations and memoranda of points and authorities,9 the matter came on for hearing before Judge Morgan.

Judge Morgan granted DeMeester's motion and disqualified Judge Warren from further presiding over the criminal prosecution of Taylor and Robison.   Judge Morgan concluded from the record before her that Judge Warren “had a fixed opinion that there was ‘an effort by the defense jointly in concert with each other to derail this trial by using racial designations to keep this case from going to a jury.’ ”   Judge Morgan ruled that Judge Warren's “conclusions of a conspiracy and the use of improper racial designations were not based on any evidence” and “were tantamount to expressing an opinion as to counsel's credibility.”   Judge Morgan then concluded that a reasonable person would entertain a doubt that Judge Warren could be impartial in his decision on the Wheeler motion because of his opinion “as to the lack of credibility” of DeMeester.

This petition followed.10

discussion

I

 DeMeester contends Judge Warren lacks standing to bring this petition to contest his disqualification.   At least two courts have taken the view that a disqualified trial judge does have standing.  (Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1019, 61 Cal.Rptr.2d 49 [“Judges have standing to contest attempts to disqualify them.”];  Estate of Di Grazia (1993) 13 Cal.App.4th 681, 684-685, 16 Cal.Rptr.2d 621.)   It is true that section 170.3, subdivision (d), provides that a writ petition challenging a judicial disqualification may be brought “only by the parties to the proceeding.”   However, Di Grazia held that a trial judge was a party to the disqualification proceeding, which is ancillary to the main action:  “In that ancillary proceeding, the judge appears as a party for all practical purposes.”  (13 Cal.App.4th at p. 684, 16 Cal.Rptr.2d 621.)   We agree with Di Grazia and Ng, and conclude that judges have standing to bring writ petitions to contest their disqualification under sections 170.1 and 170.3.11

II

 We now turn to the merits.  Section 170.1 states, in relevant part:  “(a) A judge shall be disqualified if any one or more of the following is true:  [¶] ․ [¶] (6) For any reason ․ (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.   Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification.”

 The standard for disqualification under the statute is an objective one:  whether “a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge's impartiality․   The existence of actual bias is not required.”   (Flier v. Superior Court (1994) 23 Cal.App.4th 165, 170, 28 Cal.Rptr.2d 383;  accord United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104, 216 Cal.Rptr. 4.)   Since the underlying facts are not in dispute, the question of disqualification is a question of law which we review de novo.  (Flier at p. 171, 28 Cal.Rptr.2d 383.) 12

Judge Morgan did not accurately characterize the record.   She ruled that Judge Warren only once stated he was making observations, not findings of fact.   This is erroneous.   Judge Warren stated explicitly no less than five times that he had not found facts, but only had questions raised by his observations of counsel's conduct:

“I have found no facts.   I have simply stated what I observed.”  (R.T. (Nov.21, 1997) p. 4:19-20.)

“I am not making any finding on” whether “conduct on the part of defense counsel is less than comporting with the standards required for a fair and impartial trial.”  (R.T. (Nov.21, 1997) p. 13:12-15.)

“I am not making a finding that [DeMeester] has been uniformly excluding Asians.”  (R.T. (Nov.21, 1997) p. 14:4-5.)

DeMeester's peremptory challenges “raise[ ] a question in my mind what is going on here.”  (R.T. (Nov.21, 1997) p. 14:19-20.)

“I can't say [defense counsel] agreed on taking off Asians.  [Counsel's observed conduct] simply raises questions in my mind that are very disturbing.”  (R.T. (Nov.21, 1997) p. 20:12-20.)

Judge Morgan, however, cited five other excerpts of the record as showing Judge Warren's “fixed opinion” and “accusation” that counsel were deliberately trying to derail the proceedings.   The first two excerpts are portions of a single, long passage in which Judge Warren is responding to the People's question of whether there was a finding of a prima facie case under Wheeler, and whether the “Court should go back and explore” that issue.   In the first excerpt, Judge Warren responded “I don't know.   What I am concerned about-my concern here is that there is no finding other than an effort by the defense jointly in concert with each other to derail this trial by using racial designations to keep this case from going to a jury.”   In the second, Judge Warren noted counsel's conduct “suggests very much” that their conduct “is less than comporting with the standards required for a fair and impartial trial.”   However, very shortly thereafter, and at the conclusion of the passage containing the two excerpts, Judge Warren clarified “I am not making a finding on that.”

The third excerpt is a passage in which Judge Warren again refers to his observations, and states that “this Wheeler situation was created and appears to have been created by the two of you” (italics added);  immediately after the passage cited by Judge Morgan, Judge Warren states he is not making a finding.

The fourth is a passage in which Judge Warren indicates he had a “serious question” about counsel's behavior if they were trying to derail the process.   True, at one point he says, “I note that is the case”;  but in the context, the meaning of the remark, and the indefinite pronoun, is less than clear.

The fifth consists of Judge Warren stating he will not “tolerate any conduct that intentionally seeks to derail the process.”   This is not a finding that such conduct has in fact occurred.   Rather, this is a statement of attitude about a certain type of conduct which may or may not be found to exist.

 Judge Morgan also relied on inapposite legal authority.   She cited three older decisions in which the trial judge explicitly, and perhaps with unwarranted fervor, indicated a firm opinion that a party or an attorney was entirely without credibility.   That is not the case here.   Rather, in voicing his views on observations he made during jury selection, Judge Warren merely expressed concern over the conduct of counsel.   This is not a ground of disqualification for bias.  (See Scott v. Family Ministries (1976) 65 Cal.App.3d 492, 509, 135 Cal.Rptr. 430.)   In fact, a judge's expression of opinion, uttered in what he or she perceives to be the discharge of his or her judicial duty, and based on actual observance in the courtroom, is not evidence of bias or prejudice.  (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031, 240 Cal.Rptr. 78;  Shakin v. Board of Medical Examiners (1967) 254 Cal.App.2d 102, 116, 62 Cal.Rptr. 274.)

Judge Warren had a right, if not a duty, to express his concerns that defense counsel were deliberately infecting the record with Wheeler error, and to inquire further of counsel concerning their behavior.   This is to be expected of any responsible trial judge, and does not constitute grounds for disqualification.

We conclude the record does not support a finding that Judge Warren was biased or prejudiced against DeMeester or his client, or was of the view that DeMeester lacked credibility.

III

We close with some comments on the authority of the trial judge.

Every court has the power “[t]o provide for the orderly conduct of proceedings before it․”  (§ 128, subd. (a)(3).)  “It shall be the duty of the judge to control all proceedings during the trial ․ with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”  (Pen.Code, § 1044, italics added.)

 We recognize that our system does not insulate from disqualification for bias or prejudice the grossly imprudent judge who departs from the proper exercise of judicial duties to engage in gratuitous, unfounded ad hominem attacks on the character or credibility of a party or counsel.   Our system does, however, insure that in the proper exercise of judicial duties, as was the case here, the trial court may, and many times must, without fear of risking disqualification, call observations it makes of counsel's conduct during trial as it sees them.   Even in these times of sensitivity to political correctness, the California trial court's expression of opinion on its actual observances of counsel's conduct cannot be curtailed.

The duties and responsibilities of the trial court to preside over and direct the course of trial vest the court with the authority to freely and objectively express its views and observations of the conduct of counsel.   Such comments, even if displaying exasperation with counsel's conduct, cannot be used to subvert the trial court's exercise of its right to so comment, or its duty to control the proceedings to conform with the law.   The trial court cannot be held hostage to threats of disqualification for cause because of claims of bias or prejudice emanating from the umbrage, or perhaps juvenile pique, of counsel whose conduct has been the subject of judicial comment.

 In the Wheeler context, the role of the trial judge is to preserve the jury panel from unconstitutional tampering.   Once a prima facie case of a Wheeler violation has been established, the trial court is charged with the duty of determining the validity of the challenges.   This necessarily involves the acceptance or rejection of counsel's reasons for the challenges, a process that necessarily requires an assessment of counsel's credibility on that particular issue.   Under Judge Morgan's reasoning, every case of a Wheeler violation could arguably furnish grounds for disqualification for cause of the judge who rejects counsel's stated reasons for exercising peremptory challenges.   Such a rejection of counsel's reasons does not indicate bias or prejudice on the part of the trial judge.

We are constrained to comment on the abuse of Wheeler in this case.   On this record, substantial evidence exists to support a trial court's reasonable conclusion that the rule of Wheeler, designed to protect the fair selection of jurors, was being used in this case as a pretext to infect the jury panel and cause its discharge and a resultant delay of trial.   Although Judge Warren made no findings of defense counsel's collusion in such an endeavor, such collusion seems readily apparent in the light of our appellate scrutiny.   We must assume that despite such collusion, Judge Warren granted the Wheeler motion because all five of DeMeester's peremptory challenges had in fact been improperly used to remove Asian women from the jury.

However, we observe that a technical adherence to the Wheeler rule in circumstances presented by this multiple defendant case could prevent a jury from ever being seated.   One defendant could exercise peremptory challenges against prospective jurors of a cognizable gender or racial group.   The second defendant would make a pretextual Wheeler objection to such challenges, requiring the court to shift the burden to the challenging party of proving that such peremptory challenges were race and/or gender neutral.   The challenging party, by deliberate obfuscation or outright rejection of that legally imposed burden, would trigger the jury's discharge and restart of jury selection.  Wheeler's constitutional safeguard should not be abused by such collusive conduct of cocounsel.

 A California trial court has discretionary authority to remedy such an abuse of Wheeler.   When a trial court on substantial evidence makes a finding that a series of Wheeler objections by a codefendant are pretextual, the court may deny those pretextual Wheeler objections.   The peremptory challenges to which the pretextual Wheeler objections were directed and denied should remain deducted from the total allowed the defendant who exercised them.   Jury selection should then continue.   The court may also take appropriate action under section 128.   This procedure simply confirms the inherent power of a trial court, independent of constitutional or legislative grant, to control the litigation before it and to prevent such abuse of its process.  (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287-288, 245 Cal.Rptr. 873)

disposition

The order disqualifying Judge Warren was error.13

 We have previously informed the parties we might act by issuing a peremptory writ in the first instance.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180, 203 Cal.Rptr. 626, 681 P.2d 893.)   Generally, this court will employ “the accelerated Palma procedure ․ only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue ․ or where there is an unusual urgency requiring acceleration of the normal process.”  (Ng v. Superior Court (1992) 4 Cal.4th 29, 35, 13 Cal.Rptr.2d 856, 840 P.2d 961.)   Here, there is no purpose to be served by oral argument because Judge Warren's right to relief is clear.

Let a peremptory writ of mandate issue commanding respondent superior court to vacate its order disqualifying Judge Warren.

Judge Warren shall recover his costs.

FOOTNOTES

FOOTNOTE.  

2.   The record indicates that three of the five jurors were clearly of Chinese descent.   The fourth was Asian or Filipino.   The fifth was Filipino or perhaps Hispanic.   All five were “substantively identical” in “physical appearance”, having “short, dark hair,” an “olive” complexion, and a “noticeable accent.”For simplicity's sake we refer, as Judge Warren generally did, to the five jurors as being of Asian descent.

3.   Either DeMeester was being disingenuous, or he is uncommonly out of touch with the tools of his trade.  “[T]o sustain his burden of justification, the allegedly offending party must satisfy the court that he exercised such peremptories on grounds that were reasonably relevant to the particular case on trial or its parties or witnesses-i.e., for reasons of specific bias․”  (Wheeler, supra, 22 Cal.3d at p. 282, 148 Cal.Rptr. 890, 583 P.2d 748.)   Once a prima facie case of discriminatory use of peremptory challenges is shown, the challenging party bears “the burden ․ to come forward with a neutral explanation for challenging [minority] jurors.”  (Batson, supra, 476 U.S. at p. 97, 106 S.Ct. at p. 1723.)   When there is a prima facie case that a defense counsel is using peremptory challenges in a discriminatory fashion, “the defen[se] must articulate a racially neutral explanation for peremptory challenges.”  (McCollum,supra, 505 U.S. at p. 59, 112 S.Ct. at p. 2359, italics added.)

FN4. Unless otherwise indicated, all subsequent section references are to the Code of Civil Procedure..  FN4. Unless otherwise indicated, all subsequent section references are to the Code of Civil Procedure.

5.   We preserve the original use of boldface and capitalization in the quoted material.

6.   The record does not show that Judge Warren was “wrong.”   The record merely shows that DeMeester simply disagreed with Judge Warren's suspicions.

7.   This is patently untrue.   The record shows that Judge Warren did no such thing.   He certainly did not “interrogate” DeMeester or Smith.   Presumably, DeMeester labels as “interrogation” Judge Warren's attempt to get a straightforward answer to a legally required question:  DeMeester's reasons for his peremptory challenges.

8.   This is also patently untrue.   Judge Warren made no such threats.   DeMeester's statement that Judge Warren threatened “proceedings against counsel personally” is a false statement-and it was made in an affidavit executed under penalty of perjury, an offense to which neither zeal nor rhetoric is a defense.

9.   In one such filing, DeMeester noted that on Friday, Judge Warren twice referred to DeMeester and Smith as “you people.”   DeMeester states that “The term ‘you people’ does not evince proper judicial temperament.”   The phrase “you people,” under the present circumstances, is not an inappropriate judicial utterance.

10.   Judge Warren did not request a stay of the underlying criminal trial, which involves an elderly victim.   Trial has ensued before another judge.   However, we consider the present petition to present justifiable issues worthy of review despite any question of mootness:  whether Judge Warren was, in fact, biased or prejudiced, and whether the judicial disqualification statutes are abused when a disqualification motion is brought against a trial judge for simply exercising control of the courtroom, commenting on conduct of counsel, and conducting a trial in an orderly and proper way.

11.   In his petition for rehearing, DeMeester again urges that judges do not have standing to contest their disqualification for cause.   We again reject that contention for the reasons stated in the text.   Furthermore, we note that a lack of standing could create inequity.   If a judge is disqualified because of alleged partiality, prejudice or bias, and if the judge lacks standing to plead his or her case in the appellate courts, the disqualified judge can only rely on the party adverse to the disqualifying party to contest the disqualification.   If the adverse party chooses not to, for reasons of tactics, time, expense, or even collusion with the disqualifying party, the hapless judge is left with no avenue of review or chance for vindication.   The law cannot countenance such a possibility;  judges must have standing to contest their disqualification for cause.

12.   The parties engage in considerable debate over whether this court is limited to the Friday postrecess hearing, or can consider the Monday Wheeler hearing in reviewing the disqualification.   Judge Warren asks that we interpret his conduct of the Monday hearing as indicative of a lack of bias.   We need not specifically reach this issue, as no basis for disqualification emerges from the Friday hearing.

13.   We have considered and rejected all arguments of DeMeester's opposition to Judge Warren's writ petition.   Those not explicitly discussed in this petition have not been overlooked or ignored;  they are either frivolous or unworthy of discussion.

BY THE COURT:1 FN1. The Court:  Peterson, P.J., Haning, J. and Jones, J.

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