BRISENO v. PEOPLE

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Court of Appeal, Second District, Division 3, California.

Theodore J. BRISENO, et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; The PEOPLE, Real Party in Interest.

Civ. B060259.

Decided: August 21, 1991

William J. Kopeny, Stewart & Barnett and John D. Barnett, Santa Ana, Patrick Thistle and Michael P. Stone, Paul R. DePasquale, Los Angeles, and Darryl Mounger, North Hollywood, for petitioners. De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Asst. County Counsel, for respondent. No appearance for real party in interest.

Petition for Writ of Mandate.   James L. Smith, Judge.   Writ granted.

Petitioners, Theodore J. Briseno, Lawrence M. Powell, Stacey C. Koon and Timothy E. Wind (collectively defendants) are defendants in the highly publicized case involving the police beating of a black motorist, Rodney King.   They petition for a writ of mandate directing the respondent court to vacate its order of August 1, 1991, denying defendants' motion to disqualify Judge Bernard Kamins pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(C).1  Under the circumstances present here, we are compelled to conclude that as a matter of law Judge Kamins is disqualified pursuant to the relevant statutory provisions.   All further proceedings in this case therefore must be conducted by a judge other than Judge Kamins.   The petition for writ of mandate is granted.

INTRODUCTION

On July 15, 1991, defendants filed a motion to disqualify Judge Kamins for cause.   The grounds asserted for disqualification included:  (1) The ex parte communication Judge Kamins initiated with the Office of the District Attorney is perceived by the “average person on the street” as reflecting a partiality for the prosecution;  (2) Judge Kamins has been willing to disregard the law and decide issues primarily motivated by a desire to move quickly to trial based upon his personal perception that the public wants an immediate trial of this highly publicized case;  (3) Judge Kamins has allowed media interpretations of his actions to influence his management of the case;  and (4) his conduct after receiving a notice that the Court of Appeal was considering granting a petition for writ of mandate directing the court to change venue reflects Judge Kamins's concern with protecting his public image rather than making decisions based upon the law and is another factor which causes the “person on the street” to form an opinion that Judge Kamins is not a fair and unbiased judge.2

Under the procedure established in subdivisions (c)(5) and (c)(6) of section 170.3, Judge James Smith of the Orange County Superior Court was appointed by the chairperson of the Judicial Council to hear and determine whether Judge Kamins should be disqualified.   On July 24, Judge Kamins filed an answer to the motion to disqualify him.

On August 1, 1991, the appointed judge found:  “This court's duty is not to determine the correctness of the trial judge's conduct, but to determine if, after considering such conduct, a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.   The court finds that there is no showing that a person aware of the facts might reasonably entertain a doubt that Judge Bernard Kamins would be able to be impartial.”

On August 5, 1991, defendants timely filed this petition seeking to obtain a writ of mandate directing that Judge Kamins be removed from the case and that all further proceedings be conducted before a judge other than Judge Kamins.   Based upon our preliminary reading of the petition, we immediately issued a temporary stay of all proceedings.   On August 6, 1991, we notified the parties this court was considering the issuance of a peremptory writ of mandate in the first instance.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.)   On the same date, we issued an order allowing the case to proceed and directed Judge Kamins to refrain from participation in the case, other than to disqualify himself.

In order to minimize delay of trial, we established an expedited briefing schedule.   On August 8, we granted an extension of time for filing a response pursuant to the request of counsel for Judge Kamins and directed that our order restraining Judge Kamins from further participation in the case remain in full force and effect.

FACTUAL AND PROCEDURAL BACKGROUND

On May 16, 1991, Judge Kamins denied defendants' motion for change of venue, which motion was based upon the unequaled pretrial publicity surrounding the incident which gave rise to the charges against defendants and the political furor involving officials of the City of Los Angeles and local community leaders.  (See, Powell v. Superior Court, supra (1991) 232 Cal.App.3d 785, 283 Cal.Rptr. 777.)   Defendants petitioned this court for a writ of mandate directing that the case be transferred to another county.   On June 12, 1991, we granted a stay of the trial and the jury selection process, but allowed other pretrial matters to proceed.   We also notified the parties of the possibility we would grant a peremptory writ of mandate.  (See, Palma, supra, 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.)

On June 17, Judge Kamins wrote a letter to the Court of Appeal in which he requested this court to vacate its order and despite his repeatedly stated position that a change of venue was not legally justified, stated he was “prepared to forthwith transfer the venue of this case pursuant to Penal Code section 1033.”

We issued an order informing Judge Kamins that our order did not preclude a change of venue.   We informed Judge Kamins this court did not intend to take any action on his communication to this court.

Apparently, in response to Judge Kamins's letter to this court, Sandi Gibbons, a spokesperson for the Office of the District Attorney made the following statement:  “We believe that the defendants in this case can receive a fair trial in Los Angeles County.   We feel that a fair and impartial jury can be found in Los Angeles to try this case.   We're in the process of preparing a response on that very issue to be submitted to the appellate court.”   That statement was broadcast on KNX News Radio, which broadcast apparently was heard by Judge Kamins.3

In an apparent response to the statement of the spokesperson, Judge Kamins reacted by sending his law clerk with an ex parte message to the prosecution.

1. The Ex Parte Communication

The ex parte communication was not revealed to counsel for the defense until the following morning when the deputy district attorney insisted upon bringing up the matter in open court.   The reporters transcript of June 19, 1991, reveals that the deputy district attorney, Terry L. White, attempted to immediately reveal the ex parte communication:

“Mr. White:  Your honor—

“The court:  Do you want to be heard first?

“Mr. White:  Yes, your honor, I would like to be heard first.  [¶] Your honor, there apparently was a communication.

“The Court:  Just a minute.   Let me get through this stuff first before we go on the record with that ․”

Judge Kamins then attempted to explain the reasoning underlying his letter to this court, which explanation did not refer to the ex parte communication.   After the lengthy explanation set forth, infra, Mr. White again brought up the ex parte communication.

The reporter's transcript shows the following:

“The court:  ․ [T]his was a pressing concern of yours?

“Mr. White:  Right.   It was.  [¶] We feel it is our obligation to inform defense counsel of any communication we have with the court.  [¶] And there was a communication yesterday afternoon from one of the [judge's] law clerks, who came to our office to, in his words, deliver a message from the judge․  [¶] And the law clerk ․ spoke with our law clerks ․ and basically said that the judge had a message for us.  [¶] The message was relayed to our two law clerks in my office.  [¶] The message was basically, ‘Don't stay up all night, that the judge says trust him, he knows what he is doing.’  [¶] It was also my information that the law clerk said he felt strange delivering this message, and that he didn't know what the judge was going to do․”

Judge Kamins attempted to explain the ex parte communication with the prosecution as follows:  “I was at the doctor's and overheard some spokesperson [on the radio] from the district attorney's office make a quick, panicked, reaction to the letter, stating that, something to the effect, ‘We are going to go down fighting,’ ․ or something to that effect.”

“So my message was a psychological one.   It had nothing to do with the facts or the issues in the case other than to not have them have a coronary on the spot.  [¶] So it was more sensitivity training than it was anything else.”   Judge Kamins explained his failure to convey the same message to defense counsel as follows:  “I would have said it to you fellows too.   But you had no reason to panic, because you were in a favorable position.”

2. Repudiation of Representations Made in Letter

Judge Kamins commented:  “I want you to know that I can get this case moved in five seconds․  [¶] ․ I did not say I would move the case because I felt a change of venue was the right thing to do, because they couldn't get a fair trial․   I only wanted to move it because of the mandate to get a fair and quick trial․”

“I wanted to get the stay lifted and go try this case.   And what the People want from the courts, they do not want delays.  [¶] There is a case right now, the Menendez case․   And I think it is a year old.   And that's in the Court of Appeal.[4 ]  [¶] You have the Alton Harris case.   I think they've been in the Court of Appeal twelve years.[5 ] ․  [¶] In other words, they are not lifting the stay․  [¶] All I can say is, to heck with the letter.   It didn't work.   I didn't get the stay lifted.”

“I want to be clear to the prosecution on this, that I'm making this decision not based on the factors of 1033, that this is only under 115.” 6

Judge Kamins also stated, “I didn't like the words ‘indefinite stay.’ [[[[[[7 ]  That's why I decided to take offensive action.”

Judge Kamins continued to explain his conduct:  “It is my opinion that this case may end up in the Court of Appeal for the next several months․  [¶] So I thought that my letter, asking them, in effect, to lift the stay, is kind of like you want to move, rather than take months in the court of appeal.”

“I don't blame the defense attorneys for what they did․  [¶] So I'm not taking any shots at the defense at all.  [¶] When the higher court gave me this stay, in my opinion, this was not a fifty-fifty proposal.  [¶] The words were the court is considering issuing a writ saying change of venue.   Putting the district attorney's office and the court more or less on the defensive here, because the court said, ‘Look, I think we are going to issue this writ.’  [¶] So let's say months go by, and the stay isn't lifted here, say five or six months go by and we are in the same place we are today.   I like to take the offensive back and keep control of this.”

“I absolutely took the opposite of this feeling, that this is not, I'm not, I did not say I would move the case because I felt a change of venue was the right thing to do․   I only wanted to move it because of the mandate to get a fair and quick trial.”

“I did finish the jury questionnaire․   I had first marked out the political fall-out part of the questionnaire until I got the Court of Appeal opinion [sic].[8 ]  And you can bet I put that right back in․  [¶] I more or less withdrew the letter.   The issue is a dead issue right now.”

The inappropriate conduct of Judge Kamins has previously been criticized by this court.   On July 23, 1991, we filed our opinion in Powell v. Superior Court, supra (1991) 232 Cal.App.3d 785, 283 Cal.Rptr. 777), in which we stated:  “Unfortunately the trial judge's actions have contributed to the publicity surrounding this case and have resulted in no small amount of public confusion about the venue issue.   The trial judge's apparent willingness to sacrifice legal principles in order to achieve an expeditious trial date makes it obvious why this court refused to vacate the stay of the trial before there was an actual change of venue ordered.”

In his response to defendants' motion to disqualify for cause, filed on July 24, 1991, Judge Kamins, for the first time, alleged he had intended to hold another hearing on the motion to change venue.  “Concerned that [the radio broadcasts] were likely based upon an incorrect assumption that my letter [to the Court of Appeal] meant that I had ordered a change of venue or that I was ordering a change of venue without a further hearing and that so airing these incorrect assumptions in the press would unnecessarily present additional complications ․ I hastily directed a law clerk to the District Attorney's Office to tell the District Attorney not to panic and to wait until the hearing the next day.   No such communication was sent to defense counsel because the reports were only from the prosecution, and I did not anticipate that the defense would be likely to similarly react to my letter [to the Court of Appeal]․  [¶] ․ I was intending to convey:  don't panic, trust me that I'm not going to order a change of venue without a hearing, and that everything will be explained at a hearing the following day[.]”

DISCUSSION

1. No Substantial Conflicts in Facts

 In the absence of conflicting evidence, the issue is one of law and the reviewing court “must make an independent determination of the meaning․”   (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, 44 Cal.Rptr. 767, 402 P.2d 839.)

In Briggs v. Superior Court (1932) 215 Cal. 336, 342, 10 P.2d 1003, the California Supreme Court held:  “It may be conceded that when the disqualification of a judge is a question of fact, and the facts are disputed, the determination of the judge assigned to pass on the question is final and conclusive under the well-settled rule that appellate courts are bound by the determination of a lower court, based on conflicting evidence.   But where the facts are without substantial conflict the question of disqualification is one of law ․”  (Emphasis added.)

The Briggs court read certain statements made by the challenged judge as a whole and determined the only reasonable conclusion to be drawn from the statements was that the challenged judge charged the petitioners with having knowingly made false statements in their affidavit.   The challenged judge did not deny he made the statements alleged, but offered evidence as to his state of mind when he made the statements.   He contended he did not intend to charge the petitioners with having intentionally made false statements but simply intended to deny the truth of the allegations in the affidavit.

Briggs held the judge's evidence as to his state of mind did not raise a conflict of evidence.  “If it be held that the statement of the challenged judge as to his opinion as to his state of mind is binding or conclusive, it is obvious that in every case the challenged judge ․ will pass upon the question of his own qualifications, contrary to the letter and spirit of [the statutory provisions].   It is our opinion that in this case the state of mind of the challenged judge must be determined by what he said or did and not by what he may think his state of mind to be.”  (Briggs, supra, 215 Cal. at pp. 344–345, 10 P.2d 1003;  emphasis added.)

In other words, the statements of the challenged judge speak for themselves thereby rendering subsequent allegations about intent and state of mind irrelevant.9  In the absence of a substantial conflict in evidence the question of disqualification is one of law.10  (Briggs, supra, 215 Cal. at p. 338, 10 P.2d 1003.)

The situation in Briggs is similar to the circumstances here in that the trial judge in Briggs made subsequent attempts to explain improper conduct.   Following the procedure established by our Supreme Court in Briggs, we review the words of Judge Kamins's ex parte communication with the prosecution and his disavowal of the express language in the letter sent to this court and not his subsequent attempts to explain his intent and state of mind.

2. Individual Judge Not Party to Writ Proceeding

 When a petition for extraordinary relief seeks review of a ruling by a judge of a lower court, the individual judge whose ruling is being reviewed is ordinarily a neutral party with no interest in the outcome of the petition.   The true adverse party is the litigant designated as the real party in interest.  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 189–190, 137 Cal.Rptr. 460, 561 P.2d 1148.)

In Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739, 743–747, 190 Cal.Rptr. 910, 661 P.2d 1064, a superior court judge communicated privately with an attorney representing one of the parties in the case while a writ petition requesting reversal of the judge's ruling in a pretrial matter was pending.   In attempting to explain the ex parte communication, the judge argued the communication was “ ‘trivial in nature’ ” and motivated by a legitimate concern with the court calendar.   The commission found the communication demonstrated an impermissible personal involvement in the litigation.  (Id. at p. 747, 190 Cal.Rptr. 910, 661 P.2d 1064.)

 A trial judge may not participate in ex parte communications with the real party, the prosecution, in a writ proceeding seeking review of the judge's order.  “Although the trial court becomes a party respondent to the proceeding, the court is usually represented (if at all) by its county counsel.  [Citation.]   The individual judge of the court whose order is being reviewed is not a proper party to the proceeding.”  (Roberts, supra, 33 Cal.3d at p. 747, 190 Cal.Rptr. 910, 661 P.2d 1064;  emphasis in original.)  Roberts held it is improper for an individual trial judge to participate personally in ex parte communications with a party opposing a writ petition which seeks reversal of the court's order.  (Id. at p. 747, 190 Cal.Rptr. 910, 661 P.2d 1064.)

 We further note that while the petition seeking review of the venue matter was pending before this court, Judge Kamins made futile attempts to communicate directly by telephone with members of this panel.   When these attempts were repulsed, Judge Kamins proceeded to leave telephone messages with our court clerks to be communicated to this court.   These messages commented on the substance of the matter then pending and even included citations to legal authority.11  Such conduct is prohibited by subdivision (b) of Government Code section 68070.5.   That statute provides:  “When a petition for an original writ names a court as a party, there shall be no communication direct or indirect between any judge hearing the writ and the judge or judicial officer of the court named as a party.”  (Emphasis added.)   The prohibited conduct of Judge Kamins in attempting to influence our decision on a pending matter lends further support to our conclusion that he abandoned his neutral position and became personally embroiled in this case.

3. Development of Standard for Judicial Disqualification

Solberg, supra, 19 Cal.3d at p. 192, 137 Cal.Rptr. 460, 561 P.2d 1148 held:  “[D]isqualification of trial judges is an aspect of the judicial system which is subject to reasonable legislative regulation;  ․ it is ‘wholly unnecessary’—we could have said it is virtually impossible—for the Legislature to attempt to list ‘the many conceivable factors which might cause a judge to be prejudiced.’  [Citation.]”

Prior to the 1984 amendment of section 170.1, Pacific Etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 147 Cal.Rptr. 44, discussed the litigants right to seek disqualification of a judge for cause under section 170, subdivision 5, the predecessor of section 170.1, subdivision (a)(6)(C).  Pacific Etc. found an abuse of discretion by the judge assigned to hear the disqualification motion where the assigned judge denied the motion and the facts revealed that the challenged judge offered an opinion on a matter not yet pending before him.  (Id. at pp. 83–86, 147 Cal.Rptr. 44.)   Under such circumstances, Pacific Etc. found:  “[I]t shocks the judicial instinct to allow the judgment to stand.”  (Id. at p. 88, 147 Cal.Rptr. 44.)

In reviewing a motion to disqualify for cause, the Pacific Etc. court articulated a definition of prejudice similar to that subsequently codified in section 170.1:  “ ‘ “It is often stated that it is not only the fact but the appearance of prejudice that should disqualify a judge.   This is the rule that appeals to the reason of the Constitution․  [I]t is not the fact of prejudice that would impair the legitimacy of the judiciary's role but rather the probable fact of prejudice, i.e., the appearance of prejudice.   The truth of few, if any, ultimate ‘facts' of human existence are established to that point of complete certitude which eliminates all plausible doubt.   A fact as difficult of ascertainment as any person's ‘prejudice’ is seldom, if ever, proven so completely that reasonable persons might not still disagree.   And the mere allegation or good faith belief that a fact is true may be sufficient to cause reasonable doubt.   Since the legitimacy of the Court's role is essentially a perception of the people, in whose secure confidence the courts must remain if their powers are to be maintained, it follows that merely probable or even alleged facts or a good faith belief in such facts may be sufficient to disqualify a judge.” ' ”  (Pacific Etc. Conference of United Methodist Church, supra, 82 Cal.App.3d at p. 88, 147 Cal.Rptr. 44, quoting Solberg, supra, 19 Cal.3d at p. 193, fn. 10, 137 Cal.Rptr. 460, 561 P.2d 1148 (emphasis in original).)

4. The Reasonable Person Standard

 A biased decisionmaker is constitutionally unacceptable.  (Withrow v. Larkin (1975) 421 U.S. 35, 46–47, 95 S.Ct. 1456, 1463–1464, 43 L.Ed.2d 712, 724.)   That right to a fair and unbiased decisionmaker is codified in sections 170, et seq.

 In pertinent part section 170.1 provides:  “(a) A judge shall be disqualified if any one or more of the following is true:  ․ (6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (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.”  (Emphasis added.)

In United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 216 Cal.Rptr. 4, one of the parties brought a midtrial motion to disqualify the judge in a court trial in an action by a grower against a union in connection with a strike.   The sole basis for the motion to disqualify the judge was that several years before, during a strike, the judge's wife had volunteered for two or three days as a replacement worker for the grower.   Because the circumstances did not involve the judge directly and there was no current personal or financial interest, the court found a reasonable person would not question the judge's present impartiality.  (Id. at pp. 101–102, 105–107, 216 Cal.Rptr. 4.)

United Farm Workers of America, supra, 170 Cal.App.3d 97, 216 Cal.Rptr. 4 interprets subdivision (a)(6)(C) of section 170.1 as providing for disqualification when a judge's impartiality might reasonably be questioned.   The statute changed previous law which had been construed to require bias in fact.   The legislative purpose for the change in law is that “public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case.”  (Id. at p. 103, 216 Cal.Rptr. 4.)

“The standard for disqualification provided for in subdivision (a)(6)(C) of section 170.1 is fundamentally an objective one.   It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of actual bias.   Rather, if a reasonable [person] would entertain doubts concerning the judge's impartiality, disqualification is mandated.”  (United Farm Workers of America, supra, 170 Cal.App.3d at p. 104, 216 Cal.Rptr. 4.)

The decision on disqualification is based neither upon the judge's personal view of his own impartiality nor upon the litigants' partisan view of the matter.  “[T]he circumstances giving rise to suspicions of partiality rarely involve the legal posture of the case.”  (United Farm Workers of America, supra, 170 Cal.App.3d at p. 105, 216 Cal.Rptr. 4.)   Rather, the decision on disqualification is based upon an objective consideration of how the participation of a particular judge in a given case appears to the average person on the street.  (Id. at p. 104, 216 Cal.Rptr. 4.)

Leland Stanford Junior University v. Superior Court (1985) 173 Cal.App.3d 403, 219 Cal.Rptr. 40 involves an attempt to disqualify a judge because he was a past president and an active member of certain alumni associations of the University.  Leland Stanford found, as a matter of law, the “average person on the street” would find the judge's activities so remote and so unrelated to the issues of the management of the university's land and physical facilities as to raise no doubt as to his ability to be impartial in the matter.  (Id. at p. 408, 219 Cal.Rptr. 40.)   The Leland Stanford court held:  “[W]e are persuaded that reasonable minds could not differ as to the significance of the facts ․”  (Id. at p. 407, 219 Cal.Rptr. 40.)

 The standard in reviewing the decision of the judge assigned by the Chairperson of the Judicial Council is:  Whether the record reflects a factual basis for a reasonable doubt as to the judge's impartiality.  (Leland Stanford Junior University, supra, 173 Cal.App.3d at p. 409, 219 Cal.Rptr. 40.)   Thus, if a reasonable person aware of all the facts and circumstances would question the impartiality of the judge, disqualification of that judge is mandated by section 170.1 subdivision (a)(6)(C).

5. Application Here

 Canon 3 A(4) of the Code of Judicial Conduct provides:  “․ [E]xcept as authorized by law, [judges should] neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.”   The Commission on Judicial Performance has noted that an ex parte communication is not excused because it had no effect on the ultimate ruling:  “ ‘[w]hen a judicial decision is made after an improper communication, there is an appearance of favoritism.’ ”

The ex parte communication from Judge Kamins to the prosecution attorneys is inexcusable.   Such conduct creates “an appearance of favoritism” (Canon 3A(4) of the Code of Judicial Conduct), even where the improper communication has no effect on the decision of the court.   The widely publicized ex parte communication is in itself such improper conduct 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)(C).)

However, the improper conduct of Judge Kamins extended even further.   Judge Kamins expressly stated in his June 17, 1991 letter to this court that he intended “to forthwith transfer the venue of this case pursuant to Penal Code Section 1033” and requested an immediate response from this court so that “this order transferring can be made on or before Wednesday, June 19, 1991.”

The transcript of the hearing which began at 9:45 a.m. on June 19, reveals Judge Kamins's repudiation of the representation made to this court.  “I want to be clear ․ I'm making this decision not based on the factors of 1033 [.]”  Such an about-face on the issue provides support for defendants' contention that Judge Kamins is overly-concerned with his public image and has allowed media interpretations of his actions to influence his management of the case.   An objective consideration of how the participation of a particular judge in a given case appears to the average person on the street can lead to but one conclusion:  A reasonable person aware of all the circumstances would have a substantial doubt as to the impartiality of Judge Kamins.

Judge Kamins contends the letter to this court and the ex parte communication with the prosecution was intended to convey his intent to conduct another hearing on the venue issue.   The purpose of such a hearing is a mystery.   The letter Judge Kamins wrote to this court stated in unequivocal terms that Judge Kamins would transfer the case pursuant to Penal Code section 1033.   If the contents of the letter are taken as true, a hearing would serve no purpose.   Nothing in the statements conveyed by Judge Kamins's law clerk to the prosecution indicated an intent to hold a hearing, consider new or additional evidence, or make any order other than an order granting a change of venue.   The claim that he intended to conduct a hearing in the matter appears to be an ill-considered afterthought.

Finally, Judge Kamins's remarks about being “on the defensive” in a writ proceeding and his comments about his desire to “take the offensive back and keep control of this” reveals a profound misunderstanding of the court's role when one of its rulings is challenged by the filing of a writ petition.   As discussed above, an individual judge is not “on the defensive,” is not a proper party to a writ proceeding (Roberts, supra, 33 Cal.3d at pp. 743–747, 190 Cal.Rptr. 910, 661 P.2d 1064), and certainly is without power to “keep control” of a case following the issuance of an order from a higher court.   Considered as a whole the conduct of Judge Kamins in this matter leads us to the inevitable conclusion that he “shed the robe of the judge” and “assumed the role of the advocate.”  (Little Rock Sch. Dist. v. Pulaski Cty. Sp. School Dist. (8th Cir.1988) 839 F.2d 1296, 1302–1303.)   The inappropriate conduct of Judge Kamins reveals that he allowed himself to become so embroiled in the case that he abandoned his status as a neutral decisionmaker and focused the spotlight on himself.   Such conduct undermines the public perceptions of justice and damages public confidence in the judicial system.   We repeat once more, it is not the fact of the actual prejudice of a judge toward one party or the other which requires disqualification, it is the appearance of prejudice.

CONCLUSION

Under the circumstances present here, the statutory standard for disqualification is satisfied.  “[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).)

We conclude as a matter of law that the conduct of Judge Kamins was not only improper but that a reasonable person aware of the facts would reasonably entertain a suspicion concerning the judge's impartiality.  (§ 170.1 subd. (a)(6)(C).)   Judge Kamins's apparent willingness to disregard his own expressed legal opinion in the venue matter and enter an order motivated solely by his perception of the public pressure to rush to trial would cause a reasonable person to suspect Judge Kamins's ability to be impartial.   His personal involvement in the pending proceeding together with the highly publicized ex parte communication with the prosecution not only raises the spector of trial before a decisionmaker who is constitutionally unacceptable but certainly appears to the average person on the street as conduct indicating favoritism to one of the parties.

We therefore conclude all further proceedings in this case must be conducted by a judge other than Judge Kamins.   Accordingly, the petition for writ of mandate is granted.

DISPOSITION

Let a peremptory writ of mandate issue directing the superior court judge appointed to hear the motion to disqualify Judge Kamins to vacate his order denying the motion and to enter in its place an order granting the motion pursuant to the provisions of section 170.1, subdivision (a)(6)(C).

FOOTNOTES

FOOTNOTE.  

1.   Unless otherwise indicated statutory references are to the Code of Civil Procedure.

2.   Defendants also assert that the bias and prejudice of Judge Kamins is reflected in such allegedly improper conduct as monitoring press coverage of the case and using that information in ruling on defendants' motions, and refusing to allow defendants to call witnesses in support of the motion for change of venue.   The remedy for a party alleging that a judge incorrectly considered evidence and made erroneous rulings is an appeal or a petition for extraordinary writ.   Defendants' arguments concerning Judge Kamins use of evidence and decision on the motion for change of venue were brought before this court in their petition for writ of mandate regarding the venue issue.  (See, Powell v. Superior Court (1991) 232 Cal.App.3d 785, 283 Cal.Rptr. 777.)   These contentions have no part in our decision on the motion for disqualification.  (§ 170.2.)

3.   The complete broadcast on KNX was as follows:“[RADIO NEWSCASTER:]  2:08 [an apparent reference to the time of day].   The judge in the case of four Los Angeles Police Department officers indicted for using excessive force has changed his mind about where the trial may be held.   KNX reporter Jon Goodman says the trial had been due to begin tomorrow.”“[GOODMAN:]  Judge Bernard Kamins has written the District Court of Appeal he is prepared to transfer the trial to another county to avoid further delay.   Last week the appeal court halted the beginning of the trial Wednesday while it studied a defense motion that changed location due to publicity and political influence.   The District Attorney's spokeswoman, Sandi Gibbons, tells us prosecutors intend to fight any move.“[GIBBONS:]  We believe that the defendants in this case can receive a fair trial in Los Angeles County.   We feel that a fair and impartial jury can be found in Los Angeles County to try this case.   We're in the process of preparing a response on that very issue to be submitted to the appellate court.“[GOODMAN:]  The change of position by Judge Kamins does not mean a change of location is etched in stone.   The appeal court justices are still reviewing the letter asking for a ruling on its previous halt on all proceedings before the hearing scheduled for tomorrow.   From the Criminal Courts Bureau, Jon Goodman, KNX 1070.”

4.   The reference to the “Menendez case” apparently refers to a case pending before the California Supreme Court, not the Court of Appeal.   Our Supreme Court granted review on an important issue regarding confidentiality of psychiatric records, which issue necessarily must be resolved prior to trial of that case.

5.   The “Alton Harris case” is an apparent reference to a death penalty case which has never been before the Court of Appeal due to the direct review provisions of the California Constitution.   The case has been in litigation in the federal court system for several years.

6.   This statement is a direct contradiction to the statement made in the letter to this court in which Judge Kamins clearly stated:  “[T]his court is prepared to forthwith transfer the venue of this case pursuant to Penal Code Section 1033.”

7.   The reference to an “indefinite stay” is inaccurate.   Our order did not include such language.

8.   This comment apparently refers to our order staying the trial and jury selection process and the notice issued pursuant to Palma, supra, 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893.   Our opinion granting the writ of mandate was filed approximately one month after the date of that hearing.

9.   In opposing the petition for writ of mandate regarding disqualification, Judge Kamins contends that out-of-court remarks by a judge directed at counsel should be considered free of bias as long as the judge can explain or apologize for the statement.   As support for this contention two out-of-state cases are cited.   In State v. Smith (Iowa 1976) 242 N.W.2d 320, 323, an appellate court found no basis for disqualification where the judge told defense counsel during plea bargaining negotiations that the “ ‘defendant may stand a better chance with a jury than with me’[.]”  In Marsh v. State (Ala.Cr.App.1982) 418 So.2d 191, 192, a judge's statement in chambers that “ ‘this was a senseless killing’ ” and an offer of a 20–year sentence in a plea bargain context was found an appropriate offer and not a basis for disqualification of the judge.   These cases not only are factually distinct from the circumstances present here but are irrelevant to the interpretation and application of section 170.1, subdivision (a)(6)(C).

10.   If we accept the proposition that Judge Kamins's after-the-fact attempts to explain his inappropriate conduct raise a conflict in the evidence, which proposition we do not accept, and review the disqualification under an abuse of discretion standard, the ultimate result is the same.   The facts, even under an abuse of discretion standard, cast a reasonable doubt upon Judge Kamins's ability to retain neutrality and objectivity in the matter.   Under the totality of the circumstances, the appointed judge abused his discretion in denying the motion to disqualify.

11.   This information comes not from the formal record, but from the fact that certain telephonic communications were received by this court from a person who identified himself as Judge Kamins.   After the original opinion was filed, Judge Kamins denied he had made or authorized any such communications.   The bases of this court's assertion regarding such communications are reports to the writ attorney for this division and to the justices from deputy clerks of the Court of Appeal.   Because Judge Kamins' declaration in the petition for rehearing places said matter in issue, the appellate record has been augmented by the filing of declarations from this court's staff relating to said communications.As pointed out above, the information regarding these communications supplied further support for the conclusion Judge Kamins apparently had abandoned his neutral position.   However, that information, while relevant, was merely cumulative to the circumstances discussed above, at pages 5 through 13.   Those circumstances, standing alone, justify the determination that the defendants have satisfied their burden of demonstrating that Judge Kamins is disqualified pursuant to Code of Civil Procedure section 170.1, subdivision (a)(6)(C).

BY THE COURT: * FN* Before KLEIN, P.J., and DANIELSON, CROSKEY and HINZ, JJ.

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