Curle v. Superior Court, No. S080322.

• Court: United States State Supreme Court (California)
• Writing for the Court: GEORGE, C.J.
• Citation: 16 P.3d 166,24 Cal.4th 1057,103 Cal.Rptr.2d 751
• Parties: Wilson CURLE, a Judge of the Superior Court, Petitioner, v. The SUPERIOR COURT of Shasta County, Respondent; Andrew Madison Gleason et al. Real Parties in Interest.
• Decision Date: 08 February 2001
• Docket Number: No. S080322.

103 Cal.Rptr.2d 751
24 Cal.4th 1057
16 P.3d 166

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

No. S080322.

Supreme Court of California.

February 8, 2001.

103 Cal.Rptr.2d 752

Karen Keating Jahr, County Counsel, and John L. Loomis, Deputy County Counsel, for Petitioner

No appearance for Respondent.

Law Offices of Berg and Associates, Eric Alan Berg, Gary Roberts, Redding, and Janet S. Manrique for Real Party in Interest Andrew Madison Gleason.

No appearance for Real Party in Interest the People.

GEORGE, C.J.

Respondent superior court ordered that petitioner Wilson Curie, a judge of the same superior court, be disqualified from conducting further proceedings in a criminal action against real party in interest Andrew Madison Gleason. Respondent agreed with Gleason's contention that an individual aware of the facts reasonably might entertain a doubt whether Judge Curie would be able to be impartial in the action. (Code Civ. Proc., § 170.1, subd. (a)(6)(C).)¹ The People did not seek appellate review of respondent's ruling. Judge Curie, however, filed a petition for writ of mandate in the Court of Appeal seeking to overturn the order disqualifying him. After first determining that a superior court judge disqualified for cause pursuant

103 Cal.Rptr.2d 753

to section 170.1 properly may seek writ review of the disqualification order, the Court of Appeal issued a peremptory writ of mandate directing respondent to vacate its previous order and to enter a new order denying Gleason's motion for disqualification

We granted review to determine whether the Court of Appeal has authority to hear a petition for writ of mandate filed by a superior court judge seeking to overturn an order requiring the judge's disqualification for cause and, if so, whether Judge Curie properly was disqualified. As we shall explain, the exclusive means for review of a disqualification order is by a petition for writ of mandate filed by one or more of the parties to the underlying proceeding in accordance with section 170.3, subdivision (d). A superior court judge against whom a statement of disqualification has been filed is not a party to the proceeding within the meaning of this provision. Therefore, a disqualified judge may not file a petition for writ of mandate challenging the disqualification order, and the Court of Appeal lacks authority to entertain such a petition. Thus, we have no occasion to decide whether Judge Curie properly was disqualified. We shall reverse the judgment of the Court of Appeal.

I

Pursuant to a plea agreement, Gleason pleaded guilty to one count charging the continuous sexual abuse of a child under the age of 14 years. (Pen.Code, § 288.5.) The written agreement stated that if the court denied probation, Gleason would be sentenced to no more than 12 years in state prison. If the court granted probation, Gleason would receive a stipulated sentence of 16 years in state prison, with execution of that sentence suspended subject to conditions of probation. Judge Curie accepted the plea after presiding over a hearing at which Gleason waived his rights and expressly agreed to the terms of the plea agreement.

Although the probation report recommended that Gleason be granted probation subject to specified conditions, it expressed reservations regarding probation in light of several circumstances, including the nature of the offense and Gleason's background. The report stated that these circumstances ordinarily would call for a state prison commitment, but the probation officer found that Gleason's candor and willingness to participate in an approved treatment program indicated that he was willing to seek help and to redirect his life.

At a subsequent hearing, Judge Curie stated that the disposition recommended by the probation report followed that agreed to by Gleason and the People, and that the judge's tentative plan was to follow the recommendation of the probation officer. The prosecutor appearing at this hearing—who was not the deputy district attorney who had negotiated the plea agreement—disagreed with the recommendation of probation, however. In addition, an attorney representing the victim's mother expressed the view that Gleason should be sentenced to state prison. Defense counsel objected to the prosecutor's position, contending that the previously negotiated disposition included an agreement to follow the recommendation of the probation officer. Accordingly, defense counsel contended, the prosecutor violated the terms of the plea agreement by advocating a prison sentence. After reviewing the written plea agreement, however, Judge Curie concluded that the agreement reserved discretion on his part to decide whether to sentence Gleason to state prison. Judge Curie further stated that he, too, had difficulties with the probation report, and that he previously had mentioned his concerns in this regard to the probation officer's supervisor. Judge Curie ultimately indicated that "at this point" he would not follow the recommendation to grant probation. At Gleason's request, Judge Curie scheduled a sentencing hearing.

103 Cal.Rptr.2d 754

Before the sentencing hearing occurred, however, Gleason retained new counsel and filed a statement of disqualification for cause against Judge Curie. (§ 170.3, subd. (c)(1).) Gleason asserted that because the judge had engaged in ex parte communications with the probation officer's supervisor, Judge Curie had exceeded his role as an impartial adjudicator and engaged in his own investigation. Because there was no record of Judge Curle's conversation with the supervisor, Gleason contended, the judge presumably obtained knowledge and information regarding disputed evidentiary facts unknown to defense counsel and the prosecutor. For these reasons, and because Judge Curie would be a material witness concerning his conversation with the supervisor, Gleason contended that Judge Curie must be disqualified for cause pursuant to section 170.1, subdivision (a)(1) (the judge has personal knowledge of disputed evidentiary facts) and (a)(6) (a person aware of the facts reasonably might entertain a doubt whether the judge would be able to be impartial). In a supplemental declaration, Gleason's counsel indicated that Judge Curie also demonstrated bias by stating at the hearing that he was denying probation, contrary to the recommendation of the probation report, without having considered evidence and argument from the defense on behalf of Gleason, and solely because the prosecutor and counsel for the victim's mother opposed probation

Judge Curie filed a written verified answer to the statement of disqualification. (§ 170.3, subd. (c)(3).) The answer set forth the following information. Upon reading the probation report, Judge Curies initial reaction was that Gleason should be committed to state prison. The judge had no recollection of his conversation with the probation officer's supervisor, but any such conversation did not alter his reservations regarding the report or dispel his impression that he was the only individual with concerns regarding a grant of probation. Despite these concerns, for several reasons Judge Curie initially had planned to follow the recommendation that Gleason be granted probation: (1) the People had offered the possibility of probation, (2) both the probation report and the report regarding Gleason's mental condition were favorable, and (3) Judge Curie was unfamiliar with treatment programs for sex offenders and therefore chose to defer to the experts. When the prosecutor also expressed reservations regarding the recommendation of probation, however, Judge Curie was surprised. The judge did not indicate at the hearing that he had made a final decision not to grant probation, but only that he tentatively favored a 12-year prison sentence.

Pursuant to established procedure, the Honorable Norris M. Goodwin (a retired judge from Butte County) was assigned to sit as a judge in respondent superior court for the purpose of deciding the question of Judge Curle's disqualification. (§ 170.3, subd. (c)(5).) Based upon the papers filed by Gleason and Judge Curie (§ 170.3, subd. (c)(6)), Judge Goodwin determined that the parties, with the knowledge and consent of Judge Curie, entered into the plea agreement with the clear expectation that the court would follow the probation officer's recommendation. Judge Goodwin further determined that Judge Curie changed his view that he would grant probation after hearing only from the prosecutor, thus giving the appearance of catering to the district attorney's office and ignoring the plea agreement previously approved by Judge Curie. Although Judge Goodwin concluded that the conversation with the probation officer's supervisor did not influence Judge Curie or create an appearance of bias, Judge Goodwin further concluded that "an outsider, with knowledge of the facts [and] the agreement] could easily believe that [J]udge Curie should have followed the [probation] report," and that his decision not to do so conveyed the impression that Judge Curie had exhibited a bias in favor of the district attorney. Accordingly, Judge Goodwin ruled that Judge Curie was disqualified

103 Cal.Rptr.2d 755

because of an appearance of bias (§ 170.1, subd. (a)(6)(C)), but not actual bias.

The People did not participate in the disqualification proceeding or seek appellate review of respondent superior court's order disqualifying Judge Curie. Purporting to act in his official capacity as a judge of respondent court, and represented by county counsel, Judge Curie filed in the Court of Appeal a petition for writ of mandate to compel respondent to vacate its order and to enter a different order denying Gleason's motion for disqualification. The Court of Appeal issued an alternative writ. Gleason filed a return and a motion to strike...