47 Cal. 4th 993, 222 P.3d 177, 103 Cal. Rptr. 3d 723

Filed 1/21/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S150984
v.
Ct.App. 4/1 D046394
MARILYN KAYE FREEMAN,
San Diego County
Defendant and Appellant.
Super. Ct. No. SCD171601
____________________________________)

IN RE MARILYN KAYE FREEMAN
ON HABEAS CORPUS.
Ct.App. 4/1 D048111, D049238
____________________________________)

We granted review in this case to determine whether the appearance of bias
by a judge requires recusal under the due process clause of the federal
Constitution. (U.S. Const., 14th Amend.) While this matter was pending the
United States Supreme Court filed its opinion in Caperton v. A.T. Massey Coal
Co., Inc. (2009) __ U.S. __ [129 S.Ct. 2252]. The court?s exhaustive review of its
jurisprudence in this delicate realm of constitutional law compels the following
conclusions: while a showing of actual bias is not required for judicial
disqualification under the due process clause, neither is the mere appearance of
bias sufficient. Instead, based on an objective assessment of the circumstances in
the particular case, there must exist ? ?the probability of actual bias on the part of
the judge or decisionmaker [that] is too high to be constitutionally tolerable.? ?
(Id. at p.__ [129 S.Ct. at p. 2259].) Where only the appearance of bias is at issue,


a litigant?s recourse is to seek disqualification under state disqualification statutes:
?Because the codes of judicial conduct provide more protection than due process
requires, most disputes over disqualification will be resolved without resort to the
Constitution.? (Id. at p.__ [129 S.Ct. at p. 2267].) Finally, the court emphasized
that only the most ?extreme facts? would justify judicial disqualification based on
the due process clause. (Id. at p.__ [129 S.Ct. at pp. 2265, 2266].)
The Court of Appeal held that the circumstances of this case required the
trial judge to recuse himself and his failure to do so violated defendant Marilyn
Kaye Freeman?s due process rights. We conclude, however, in light of Caperton,
that this case does not present the ?extreme facts? that require judicial
disqualification on due process grounds. Accordingly, we reverse the judgment of
the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The facts underlying the defendant?s offenses were succinctly summarized
by the Court of Appeal: ?On September 10, 2002, [defendant?s] 14-year-old
daughter (E.) called the police reporting that her mother had assaulted her that day
and had been doing so on a regular basis. E. was removed from her home and
placed in a foster home. [Defendant], an attorney, then engaged in an aggressive
campaign to disrupt the foster placement and terrorize her daughter?s foster
parents in a misguided attempt to monitor and reunite with her daughter.
[Defendant] solicited one of her clients to kidnap E. from the foster parents,
burglarized the foster parents? home, chased the foster parents at high speeds on
the freeway, followed them in her car on city streets, glared at them ?in [an] evil
manner? when she was spotted, spied on them at their residence and elsewhere,
took pictures of them, and sprayed her perfume in their vehicle.
2


?The jury found [defendant] guilty of solicitation to commit kidnapping,
residential burglary, stalking, and misdemeanor child endangerment and battery.
She was sentenced to prison for six years.?
B. Procedural Background
On the morning of December 19, 2002, defendant, then in custody,
appeared before Judge Robert O?Neill for a hearing pursuant to People v. Marsden
(1970) 2 Cal.3d 118, in which she sought to replace her court-appointed counsel.
After the court granted her motion, the issue of bail arose. Judge O?Neill said he
would set the matter for bail review before another judge. After some further
colloquy, defendant said, ?I was wanting to bring up at that hearing the possibility
of house arrest there is [sic] rumors that are not really charges that I have been
stalking poor Judge Elias.? (Judge Elias was the judge presiding over the
dependency court proceeding involving defendant and her daughter.)
Judge O?Neill replied that he was aware of the ?allegation,? and
commented, ?Judge Elias and I worked together in the District Attorney?s office. I
have known Judge Elias for 23 years. He is a friend of mine, and that is another
reason I want to set the bail review back in front of Judge Szumowski who
originally set bail. [?] There is no good cause to change bail, and I really think
based on what I have been told I would recuse myself from the bail issue.?
After further discussion on scheduling matters, defendant again raised the
bail issue, telling the court she had been advised at arraignment to seek bail review
before someone other than Judge Szumowski. Judge O?Neill told her she should
discuss the situation with her newly appointed counsel ?in light of the allegations
made ? just made concerning Judge Elias. In that situation a judge who is not a
member of the bench should hear a bail review. That would be a retired judge or a
judge sitting on assignment.? Defendant observed that Judge Elias had not
3


recused himself because ?he made it clear he doesn?t think there is any substance
to those allegations,? and said, ?Do you think in lieu of all this craziness if I ?
that just house arrest would be a good idea?? The court replied, in part, ?What I
am doing as to your bail motion, I am recusing myself. I don?t think I?m the
person that should hear it.?
Between January 6, 2003, and September 3, 2003, various judges of the San
Diego Superior Court ? excluding Judge O?Neill ? presided over hearings in
defendant?s case related to appointment of counsel, bail review, discovery, and
other matters. On September 3, 2003, defendant?s case was assigned to retired
Judge Charles Jones for all purposes. Judge Jones presided over defendant?s
preliminary hearing and bound her over for trial.
At a May 14, 2004 status conference, Judge Jones stated on the record that
there was a discussion in chambers about why the matter had been assigned to
him. ?And the district attorney has advised me of how and why that came about
and the reason. The reason no longer exists, and it does not look like there?s been
a recusal of the San Diego County Superior Court, so I will put another couple of
other matters on the record and transfer the matter back to [Judge Deddeh].?
Later that day, Judge Deddeh explained, ?With regard to the recusal issue,
it is my understanding that it was communicated to Judge Jones that the only
reason the bench was being recused is because there is a possibility that on . . .
[defendant?s] computer . . . there was some indication that she was stalking Judge
Elias. Apparently the computer has been reviewed. . . . And . . . apparently
[Judge Elias is] not a victim in this case. And so there is apparently no reason for
the bench to recuse itself.? Ultimately, Judge Deddeh reassigned the case to Judge
O?Neill. Defendant reminded the court that ?he already recused himself. He
recused himself because he is a good friend of Judge Elias.? Judge Deddeh
4


replied, ?He can do that when I send it up there.? Defendant said, ?Okay.? Judge
Deddeh added, ?We?ll see whether or not this is going to be an issue for him.?
When the case reached Judge O?Neill that day, defendant filed a handwritten
challenge to him in which her counsel did not join. No action was taken on the
challenge on that day.
The May 20, 2004 minute order for Judge O?Neill?s department states that
the matter was sent back to Judge Deddeh for reassignment that morning but does
not reflect what discussion led to this action. Judge Deddeh declined to consider
the disqualification motion on the ground that it was not filed by defendant?s
counsel and returned the case to Judge O?Neill. In Judge O?Neill?s court,
defendant evidently withdrew her challenge. Judge O?Neill returned the matter to
Judge Deddeh ?for a record to be made re: withdrawal of challenge and
assignment back to [Judge O?Neill].? Back in Judge Deddeh?s court, Judge
Deddeh asked defense counsel, ?All right. So with regard to the [Code of Civil
Procedure section] 170.1 challenge . . . is your client withdrawing her 170.1
challenge?? Defense counsel answered, ?Yes, Your Honor.? The court then
posed the same question to defendant: ?All right. So then is that right, Miss
Freeman, you are withdrawing that?? Defendant replied, ?Yes, Your Honor.?
Judge Deddeh then reassigned the case to Judge O?Neill.
On October 18, 2004, the day of trial, during a hearing on another Marsden
motion, defendant again sought to disqualify Judge O?Neill for cause. Defendant
claimed she had been ?bullied? by her attorneys into keeping Judge O?Neill but
that she believed that he ?was personally prejudiced; and I always have because
you told me that in December of 2002.? The court responded, ?Ms. Freeman, you
withdrew your challenge in front of Judge Deddeh.? After the court denied her
Marsden motion, defendant again claimed the court was ?prejudiced? against her
5


and said, ?I don?t believe that once you recused yourself for cause that there was
any possible way for that to be overridden.? The court responded, ?Ms. Freeman,
that has been ruled upon.?
The matter proceeded to trial and defendant was convicted and sentenced as
noted.
The Court of Appeal reversed defendant?s conviction on the ground that
defendant?s due process rights were violated by Judge O?Neill?s failure to
disqualify himself when the case was reassigned to him.1 We granted the
Attorney General?s petition for review.
II. ANALYSIS
A. Statutory Forfeiture of Claim
Before we reach the constitutional issue, we must dispose of a preliminary
matter: whether defendant forfeited any claim that her statutory right to disqualify
a judge for bias, either actual or apparent, was violated in this case. The statutory
basis for disqualifying judges is set forth in Code of Civil Procedure section 170.1,
and other sections outline the procedures for determining the motion and the effect
of the disqualification.
Relevant here are two provisions contained in Code of Civil Procedure
section 170.3. Subdivision (a)(1) states that, upon recusal, the recused judge
1
While her appeal was pending in the Court of Appeal, defendant filed a writ
of habeas corpus in propria persona in which she alleged that appellate counsel
incompetently argued the judicial bias issue on appeal. The Court of Appeal
consolidated the two matters. In light of its reversal of the judgment, the Court of
Appeal found it unnecessary to reach the ineffective assistance claim and for that
reason alone denied the petition. Defendant did not renew her claim in this court.
Accordingly, we will vacate the denial of the petition for the Court of Appeal to
consider the petition on its merits in light of our opinion.
6


?shall not further participate in the proceeding, except as provided in Section
170.4, unless his or her disqualification is waived by the parties as provided in
subdivision (b).?2 Subdivision (d) provides in part: ?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
only by the parties to the proceeding.? (? 170.3, subd. (d).) ?Under our statutory
scheme, a petition for writ of mandate is the exclusive method for obtaining review
of a denial of a judicial qualification motion.? (People v. Mayfield (1997) 14
Cal.4th 668, 811, italics added.)
Defendant filed two statutory disqualification motions against Judge
O?Neill, one on May 14, 2004, and again on October 18, 2004. She withdrew the
first motion. As to the latter motion, defendant asserted both that Judge O?Neill
was biased against her and that, having once recused himself from her case, ?I
don?t believe . . . that there was any possible way for that to be overridden.? Judge
O?Neill responded that her motion had been disposed of when she withdrew the
earlier motion and, in effect, denied the October 18 motion.
Defendant?s failure to seek writ review of that denial forfeits both of her
potential statutory claims: that Judge O?Neill should have been disqualified for
cause and that, having once recused himself, he was statutorily precluded from
accepting reassignment of the case. (See Geldermann, Inc. v. Bruner (1991) 229
Cal.App.3d 662, 665 [?The statutes, however, do not permit limited, partial or
conditional recusal?].) Accordingly, we address the issue of judicial

2
Code of Civil Procedure section 170.4, subdivision (a) permits the recused
judge to perform a limited number of tasks.
7


disqualification solely under the rubric of due process. (People v. Chatman (2006)
38 Cal.4th 344, 362.)
B. Due Process Violation
We now turn to the issue on which review was granted: does the due
process clause require judicial disqualification based on the mere appearance of
bias. ?A fair trial in a fair tribunal is a basic requirement of due process.? (In re
Murchison (1955) 349 U.S. 133, 136.) ?The Supreme Court has long established
that the Due Process Clause guarantees a criminal defendant the right to a fair and
impartial judge.? (Larson v. Palmateer (9th Cir. 2007) 515 F.3d 1057, 1067.) The
operation of the due process clause in the realm of judicial impartiality, then, is
primarily to protect the individual?s right to a fair trial. In contrast to this
elemental goal, a statutory disqualification scheme, like that found in our Code of
Civil Procedure, is not solely concerned with the rights of the parties before the
court but is also ?intended to ensure public confidence in the judiciary.? (Curle v.
Superior Court (2001) 24 Cal.4th 1057, 1070.)3 Thus, an explicit ground for
judicial disqualification in California?s statutory scheme is a public perception of
partiality, that is, the appearance of bias. (Code Civ. Proc., ? 170.1, subd.
(a)(6)(A)(iii); Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776
[?Disqualification is mandated if a reasonable person would entertain doubts
concerning the judge?s impartiality?].)
By contrast, the United State Supreme Court?s due process case law focuses
on actual bias. This does not mean that actual bias must be proven to establish a

3
Of course, the two goals are not unrelated and the due process guarantee of
an impartial adjudicator would necessarily instill public confidence in the judicial
system.
8


due process violation. Rather, consistent with its concern that due process
guarantees an impartial adjudicator, the court has focused on those circumstances
where, even if actual bias is not demonstrated, the probability of bias on the part of
a judge is so great as to become ? ?constitutionally intolerable.? ? (Caperton v.
A.T. Massey Coal Co., Inc., supra, __ U.S. at p. ___ [129 S.Ct. at p. 2262]
(Caperton).] The standard is an objective one.
Caperton both reviewed the court?s jurisprudence in this area and extended
it. The issue in Caperton was whether due process was violated by a West
Virginia high court justice?s refusal to recuse himself from a case involving a $50
million damage award against a coal company whose chairman had contributed $3
million to the justice?s election campaign. The justice cast the deciding vote that
overturned the award. The United States Supreme Court held that, under the
?extreme facts? of the case, ?the probability of actual bias rises to an
unconstitutional level.? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at p. 2265].)
As the Caperton court noted, in the high court?s first foray into this area in
Tumey v. Ohio (1927) 273 U.S. 510, it had ?concluded that the Due Process
Clause incorporated the common-law rule that a judge must recuse himself when
he has ?a direct, personal, substantial, pecuniary interest? in a case.? (Caperton,
supra, __ U.S. at p. __ [129 S.Ct. at p. 2259].) Caperton observed, however, that
?new problems have emerged that were not discussed at common law? leading it
to identify ?additional instances which, as an objective matter, require recusal.?
(Ibid.) Tumey itself was such a case. Tumey involved a mayor-judge authorized to
conduct court trials of those accused of violating a state alcoholic beverage
prohibition law; if a defendant was found guilty, a percentage of his fine was paid
to the mayor and the rest was paid to the village?s general treasury. The court held
that the system violated the defendant?s due process rights even assuming that the
9


mayor-judge?s direct pecuniary interest would not have influenced his decision.
?The [Tumey] Court articulated the controlling principle: [?] ?Every procedure
which would offer a possible temptation to the average man as a judge to forget
the burden of proof required to convict the defendant, or which might lead him not
to hold the balance nice, clear and true between the State and the accused, denies
the latter due process of law.? ? (Caperton, at p. __ [129 S.Ct. at p. 2260].)
The Caperton court observed that, even in that early case, the high court
was ?concerned with more than the traditional common-law prohibition on direct
pecuniary interest. It was also concerned with a more general concept of interests
that tempt adjudicators to disregard neutrality.? (Caperton, supra, __ U.S. at p. __
[129 S.Ct. at p. 2260].) The court in Caperton reviewed two of its other decisions
implicating indirect pecuniary interests that in its view tested the neutrality of the
adjudicators in those cases. Ward v. Monroeville (1972) 409 U.S. 57 involved
another mayor-judge, but in that case the mayor?s compensation was not tied to his
adjudications. Rather, ?the fines the mayor assessed went to the town?s general
fisc.? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at p. 2260].) Nonetheless, the
Monroeville court found the procedure to violate due process because of the
? ? ?possible temptation? ? ? the mayor might face to maximize the town?s
revenues at the expense of defendants appearing before him. (Caperton, at p. __
[129 S.Ct. at p. 2260].)
Finally, in Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, the
court ?further clarified the reach of the Due Process Clause regarding a judge?s
financial interest in a case. There, a justice had cast the deciding vote on the
Alabama Supreme Court to uphold a punitive damages award against an insurance
company for bad-faith refusal to pay a claim. At the time of his vote, the justice
was the lead plaintiff in a nearly identical suit pending in Alabama?s lower courts.
10


His deciding vote, this Court surmised, ?undoubtedly ?raised the stakes? ? for the
insurance defendant in the justice?s suit. [Citation.] [?] The Court stressed that it
was ?not required to decide whether in fact [the justice] was influenced.?
[Citation.] The proper constitutional inquiry is ?whether sitting on the case then
before the Supreme Court of Alabama ? ?would offer a possible temptation to the
average . . . judge to . . . lead him not to hold the balance nice, clear and true.? ? ?
[Citation.] The Court underscored that ?what degree or kind of interest is
sufficient to disqualify a judge from sitting ?cannot be defined with precision.? ?
[Citation.] In the Court?s view, however, it was important that this test have an
objective component.? (Caperton, supra, __ U.S. at pp. __-__ [129 S.Ct. at
pp. 2260-2261].)
The Caperton court then examined another line of cases in which the court
had found that the probability of actual bias was so high as to require recusal
under the due process clause. ?The second instance requiring recusal that was not
discussed at common law emerged in the criminal contempt context, where a
judge had no pecuniary interest in the case but was challenged because of a
conflict arising from his participation in an earlier proceeding.? (Caperton, supra,
__ U.S. at p. __ [129 S.Ct. at p. 2261].) That case, In re Murchison, supra, 349
U.S. 133, involved a judge who presided over the contempt trial of two witnesses
whom the same judge had charged with contempt following his examination of
them at a proceeding to determine whether to file criminal charges; a so-called ? ?
?one-man grand jury.? ? ? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at p.
2261], quoting In re Murchison, supra, 349 U.S. at p. 133.)
As Caperton explained, the Murchison court set aside the contempt
convictions ?on grounds that the judge had a conflict of interest at the trial stage
because of his earlier participation followed by his decision to charge them. . . .
11


The [Murchison] Court recited the general rule that ?no man can be a judge in his
own case,? adding that ?no man is permitted to try cases where he has an interest in
the outcome.? [Citation.] [Murchison] noted that the disqualifying criteria ?cannot
be defined with precision. Circumstances and relationships must be considered.?
[Citation.] These circumstances and the prior relationship required recusal:
?Having been part of [the one-man grand jury] process a judge cannot be, in the
very nature of things, wholly disinterested in the conviction or acquittal of those
accused.? [Citation.]? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at p. 2261].)
The Caperton court then turned to another decision in this line of cases ?
Mayberry v. Pennsylvania (1971) 400 U.S. 455 ? which held that ? ?by reason of
the Due Process Clause of the Fourteenth Amendment a defendant in criminal
contempt proceedings should be given a public trial before a judge other than the
one reviled by the contemnor.? ? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at
p. 2262], quoting Mayberry v. Pennsylvania, supra, 400 U.S. at p. 466.) In so
holding, however, the Mayberry court had ?considered the specific circumstances
presented? and was not propounding a general rule that ? ?every attack on a judge
. . . disqualifies him from sitting.? ? (Caperton, __ U.S. at p. __ [229 S.Ct. at
p. 2262]; see Ungar v. Sarafite (1964) 376 U.S. 575.) Rather, ?[t]he inquiry is an
objective one. The Court asks not whether the judge is actually, subjectively
biased, but whether the average judge in his position is ?likely? to be neutral, or
whether there is an unconstitutional ?potential for bias.? ? (Caperton, supra, __
U.S. at p. __ [129 S.Ct. at p. 2262].)
The Caperton court then applied the principles derived from these cases to
the issue before it ? the impact of campaign contributions on judicial impartiality
? acknowledging that its prior cases had not addressed this circumstance. Noting
that the West Virginia justice?s rejection of the petitioners? disqualification motion
12


was based on his conclusion that he harbored no actual bias, the court said: ?We
do not question his subjective findings of impartiality and propriety. Nor do we
determine whether there was actual bias.? (Caperton, supra, __ U.S. at p. __ [129
S.Ct. at p. 2263].) Rather, the court suggested, the inherent subjectivity involved
in an individual judge?s examination of his or her own bias ?simply underscore[s]
the need for objective rules. . . . In lieu of exclusive reliance on that personal
inquiry, or on appellate review of the judge?s determination respecting actual bias,
the Due Process Clause has been implemented by objective standards that do not
require proof of actual bias. [Citations.] In defining these standards the Court has
asked whether, ?under a realistic appraisal of psychological tendencies and human
weakness,? the interest ?poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be adequately
implemented.? [Citation.]? (Ibid.)
Emphasizing that the case before it was ?exceptional,? the court concluded
that ?there is a serious risk of actual bias ? based on objective and reasonable
perceptions ? when a person with a personal stake in a particular case had a
significant and disproportionate influence in placing the judge on the case by
raising funds or directing the judge?s election campaign when the case was
pending or imminent.? (Caperton, supra, __ U.S. at p. __ [129 S.Ct. at pp. 2263-
2264].) In so concluding, the court focused on the relative size of the contribution
in relation to the total amount spent on the campaign ? it was larger than the
amount spent by all other contributors and 300 percent greater than that spent by
the campaign committee ? and the ?temporal relationship between the campaign
contributions, the justice?s election, and the pendency of the case . . . . It was
reasonably foreseeable, when the campaign contributions were made, that the
pending case would be before the newly elected justice.? (Id. at p. __ [129 S.Ct. at
13


pp. 2264-2265].) The court concluded: ?On these extreme facts the probability of
actual bias rises to an unconstitutional level.? (Id. at p. __ [129 S.Ct. at p. 2265].)
In deflecting the assertion by the respondent coal company that its ruling
would open a floodgate of due-process-based recusal motions, the Caperton court
again emphasized the exceptional nature of the cases in which it had been
compelled to conclude that the due process clause had been violated by a judge?s
failure to recuse himself. ?In each case the Court dealt with extreme facts that
created an unconstitutional probability of bias that ? ?cannot be defined with
precision.? ? [Citation.] Yet the Court articulated an objective standard to protect
the parties? basic right to a fair trial in a fair tribunal. The Court was careful to
distinguish the extreme facts of the cases before it from those interests that would
not rise to a constitutional level. [Citations.]? (Caperton, supra, __ U.S. at p. __
[129 S.Ct. at pp. 2265-2266].) As the court also observed, the states have moved
to adopt judicial conduct codes to eliminate ?even the appearance of partiality?
(id. at p. __ [129 S.Ct. at p. 2266]), and these codes comprise ? ?standards more
rigorous than due process requires.? ? (Id. at p. __ [129 S.Ct. at p. 2267].) The
court, reiterating that the due process clause provides the ? ?constitutional floor? ?
in matters involving judicial disqualification concluded: ?Because the codes of
judicial conduct provide more protection than due process requires, most disputes
over disqualification will be resolved without resort to the Constitution.
Application of the constitutional standard implicated in this case will thus be
confined to rare instances.? (Ibid.)
The rule of judicial disqualification limned in Caperton may be complex
but its application is limited. According to the high court, the protection afforded
a litigant under the due process clause in the realm of judicial disqualification
extends beyond the narrow common law concern of a direct, personal, and
14


substantial pecuniary interest in a case to ?a more general concept of interests that
tempt adjudicators to disregard neutrality.? (Caperton, supra, __ U.S. at p. __
[129 S.Ct. at p. 2260].) Where such interests are present, a showing of actual bias
is not required. ?The Court asks not whether the judge is actually, subjectively
biased, but whether the average judge in his position is ?likely? to be neutral, or
whether there is an unconstitutional ?potential for bias.? ? (Id., at p. __ [129 S.Ct.
at p. 2262].) Moreover, the court has said that ? ?what degree or kind of interest
is sufficient to disqualify a judge from sitting ?cannot be defined with precision.? ?
? (Id., at p. __ [129 S.Ct. at p. 2261].) Nonetheless, the court has also made it
abundantly clear that the due process clause should not be routinely invoked as a
ground for judicial disqualification. Rather, it is the exceptional case presenting
extreme facts where a due process violation will be found. (Id. at p. __ [129 S.Ct.
at p. 2267].) Less extreme cases ? including those that involve the mere
appearance, but not the probability, of bias ? should be resolved under more
expansive disqualification statutes and codes of judicial conduct. (Ibid.)
In supplemental briefing regarding the impact of Caperton on this case,
defendant argues that the facts here may present the kind of extreme case that
implicates the due process clause. Defendant cites the Court of Appeal?s analysis
in which it concluded that Judge O?Neill?s friendship with Judge Elias, and the
similarity between the stalking charges against defendant and the allegation that
she had stalked Judge Elias, were ?consistent with what one would typically
associate with actual bias.? She also maintains that Judge O?Neill?s acceptance of
reassignment of her case after he had once recused himself constitutes
unprecedented and extreme circumstances that may present a due process
violation. At minimum, she requests that her case be remanded to the Court of
15


Appeal for a determination of whether the probability of actual bias on Judge
O?Neill?s part was constitutionally intolerable.
We reject defendant?s arguments. This case does not implicate any of the
concerns ? pecuniary interest, enmeshment in contempt proceedings, or the
amount and timing of campaign contributions ? which were the factual bases for
the United States Supreme Court?s decisions in which it found that due process
required judicial disqualification. While it is true that dicta in these decisions may
foreshadow other, as yet unknown, circumstances that might amount to a due
process violation, that dicta is bounded by repeated admonitions that finding such
a violation in this sphere is extraordinary; the clause operates only as a ?fail-safe?
and only in the context of extreme facts.
In this case, defendant had a statutory remedy to challenge Judge O?Neill?s
refusal to disqualify himself and failed to pursue it. Having forfeited that remedy,
she cannot simply fall back on the narrower due process protection without
making the heightened showing of a probability, rather than the mere appearance,
of actual bias to prevail. We also reject defendant?s claim that Judge O?Neill?s
acceptance of her case after he had once recused himself presents the kind of
exceptional facts that demonstrate a due process violation. At most, Judge
O?Neill?s decision to accept reassignment of defendant?s case may have violated
the judicial disqualification statutes that limit the actions that may be taken by a
disqualified judge. (See, e.g., In re Marriage of Kelso (1998) 67 Cal.App.4th 374,
383; Geldermann v. Bruner, supra, 229 Cal.App.3d at p. 665.) But, without more,
this does not constitute the kind of showing that would justify a finding that
defendant?s due process rights were violated.
In short, the circumstances of this case, as we view them, simply do not rise
to a due process violation under the standard set forth by Caperton because,
16


objectively considered, they do not pose ? ?such a risk of actual bias or
prejudgment.? ? (Caperton, supra, __ U.S. at p. ___ [129 S.Ct. at p. 2263]) as to
require disqualification.4
III. DISPOSITION
Accordingly, we reverse the judgment of the Court of Appeal, vacate its
denial of the petition for writ of habeas corpus, and remand the matter to that court
for further proceedings consistent with this opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

4
Defendant cites two opinions of the Court of Appeal for the proposition that
due process may be violated by the appearance of bias alone. Both of those
decisions, Catchpole v. Brannon (1995) 36 Cal.App.4th 237 and Hall v. Harker
(1999) 69 Cal.App.4th 836, involve a pattern of conduct by the judicial officer that
rendered a fair trial impossible. This is also true of In re Marriage of Iverson
(1992) 11 Cal.App.4th 1495 and Hernandez v. Paicius (2003) 109 Cal.App.4th
452. Thus, notwithstanding language in those decisions about the appearance of
bias, the facts amounted to a showing of actual bias based on comments by the
judges about women (Catchpole, Iverson), lawyers (Hall) and noncitizens
(Paicius) and should be understood in the context of those facts. To the extent that
these opinions, contain language inconsistent with our analysis in this case, that
language is disapproved. (Hernandez v. Paicius, supra, 109 Cal.App.4th 452,
Hall v. Harker, supra, 89 Cal.App.4th 836, Catchpole v. Brannon, supra, 36
Cal.App.4th 237, and In re Marriage of Iverson, supra, 110 Cal.App.4th 1495.)
17


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Freeman
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 147 Cal.App.4th 517
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S150984
Date Filed: January 21, 2010
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: Robert F. O?Neill

__________________________________________________________________________________

Attorneys for Appellant:

Carl M. Hancock, under appointment by the Supreme Court, for Defendant and Appellant and for
Petitioner.

Marilyn Kaye Freeman, in pro. per., for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Donald E. De Nicola,
Deputy State Solicitor General, Pamela Ratner Sobeck, Steven T. Oetting and Christopher P. Beesley,
Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Carl M. Hancock
4225 Executive Square, Suite 1500
La Jolla, CA 92037
(888) 789-0123

Christopher P. Beesley
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2567