Oberholzer v. Commission on Judicial Performance

• Decision Date: 13 May 1999
• Docket Number: No. S064923,S064923
• Citation: 84 Cal.Rptr.2d 466,20 Cal.4th 371,975 P.2d 663
• Court: California Supreme Court
• Parties: , 975 P.2d 663, 1999 Daily Journal D.A.R. 4463 Richard J. OBERHOLZER, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent

Page 466

84 Cal.Rptr.2d 466

20 Cal.4th 371, 975 P.2d 663, 1999 Daily Journal D.A.R. 4463

Richard J. OBERHOLZER, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent.

No. S064923.

Supreme Court of California

May 13, 1999.

Lewis, D'Amato, Brisbois & Bisgaard, James E. Friedhofer, San Diego, and Lisa K. Roberts, for Petitioner.

Jack Coyle, San Francisco, for Respondent.

BY THE COURT:

This original writ proceeding presents the following issues: (1) whether the Commission on Judicial Performance (Commission) has authority to issue a confidential advisory letter (commonly known as a " stinger" letter); (2) whether the issuance of such a letter amounts to " discipline" that implicates a judge's right to due process of law; (3) whether such a letter may be issued based upon a perceived legal error committed by a judge; and (4) whether petitioner here, Judge Richard J. Oberholzer, committed sanctionable legal error in dismissing a criminal case after the People indicated they were not ready to proceed.

As we shall explain, we conclude that the Commission has authority to issue advisory letters, that such letters are a form of discipline, that the Commission's procedures comport with the requirements of due process of law, and that such letters may be based upon a perceived legal error, if such error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty. In the instant case, petitioner's dismissal of a criminal action, following the People's declaration of unreadiness, did not constitute such sanctionable conduct.

Accordingly, we find that the Commission improperly issued its advisory letter to petitioner.

FACTS

A. The Commission's Staff Inquiry Letter

By letter dated December 6, 1996, the Commission invited petitioner to "comment regarding a report that is before the commission." In pertinent part, the inquiry letter contained the following summation:

"It is reported that in the criminal case People v. James, Kern County Superior Court case no. 65661, defendant Keith James was charged with one felony count of committing a lewd and lascivious act upon his nine-year-old niece Alicia A. Reportedly, the preliminary hearing was held on January 12, 1996, and on January 17, 1996, an information was filed charging James with the felony. James reportedly successfully moved for one continuance, and the case was set for jury trial to begin on April 8, 1996.

"It is reported that on Monday, April 8, 1996, the trial was trailed to the following day because no courtroom was available for "On April 11, 1996, you were reportedly advised by Deputy District Attorney Elizabeth Anderson that the case had been reassigned from DDA Somers to a different trial attorney the day before; you sent the case to Department 8 (Judge Kenneth C. Twisselman, II) for trial. Reportedly, defendant James and his attorney and Chief Deputy District Attorney Dan Sparks reported to Department 8, where DDA Sparks told Judge Twisselman that the prosecution was not ready to proceed because the case had been assigned to the trial attorney only the day before. Judge Twisselman reportedly told the parties to return to Department 1 to explain to you the prosecution's request for a continuance.

assignment. On April 9, 1996, Deputy District Attorney John Somers, who was the trial attorney assigned to the case, reportedly advised you that another of his cases, People v. Hammock, had been assigned to Department 2 for trial and was expected to run until the middle of the following week. You then set a trial date of Thursday, April 11, 1996.

"Reportedly, the parties returned to Department 1. You reportedly sent them back to Department 8, without discussion. You then reportedly had a telephone conversation with Judge Twisselman during which you reportedly suggested that the prosecution's motion to continue should be denied. When the parties appeared in Department 8 for a second time, Judge Twisselman reportedly told them to return to Department 1.

"When the parties returned to Department 1, the prosecution advised the court that they were not ready to proceed because of the recent reassignment of the case. The prosecution requested a continuance of the trial until the following Monday (April 15) to allow the recently assigned trial attorney time to prepare. Reportedly, the 10-day period following the scheduled trial date, after which the case would be required to be dismissed pursuant to Penal Code section 1382, did not expire until April 18. It is reported that you denied the motion to continue on the grounds that no written motion to continue had been filed and the court had a heavy calendar of cases to be tried. DDA Sparks reportedly refused to return to Department 8 for trial and cited the case of People v. Ferguson [ (1990) 218 Cal.App.3d 1173, 267 Cal.Rptr. 528]. Reportedly, the defense then moved to dismiss, and you granted the motion on the grounds that the prosecution was not prepared to proceed to trial and had failed to file a written motion to continue the case. The hearing on the matter reportedly concluded as follows:

'Mr. Sparks: Does the Court remember its reversal in People v. Ferguson? This is the same mistake you made in that case.'

'The Court: That's the ruling of the Court.'

"In People v. Ferguson (1990) 218 Cal.App.3d 1173 , the Court of Appeal reversed an order entered by you dismissing a criminal case that had been trailed from the original trial date when the DDA assigned to the case was unable to proceed on the date set for trial...."

B. Petitioner's Response

By letter dated January 27, 1997, petitioner responded to the Commission's letter, in pertinent part contending that he had ruled correctly in dismissing People v. James. The response asserted that the deputy district attorney assigned to the case, John Somers, had known in advance that he would be unable to try the case on the assigned date, yet failed to move for a continuance in writing or orally on April 8, 1996.

The response also reviewed certain provisions contained within Penal Code section 1050, governing motions for continuance of a criminal trial. As set forth more fully in the margin, the statute requires that a noticed motion be filed at least two court days prior to the hearing sought to be continued, and within two court days of learning of a conflict in the scheduling of any court hearing. (Pen.Code, § 1050, subd. (b).) ¹ A party's failure In his response letter, petitioner asserted that when the foregoing procedural requirements are not met by a prosecuting attorney seeking a continuance, witnesses' lives and schedules are disrupted, appropriate legal redress for victims may be impacted if witnesses are unavailable, defendants are left unable to prepare an opposition to the motion for continuance, and court clerks are denied the opportunity either to work out conflicts and priorities on their own or to expose a lack of true conflict. Relying upon sections 1050, subdivision (c), and 1050.5, petitioner argued that if the moving party fails to show good cause, the motion for continuance must be denied, and the movant's counsel may be subject to a monetary sanction and to the filing of a report with an appropriate disciplinary committee.

to comply with these statutory requirements is excusable upon a showing of good cause. (§ 1050, subd. (c).) If the party seeking the continuance is unable to [20 Cal.4th 378] demonstrate good cause for failing to comply with the notice requirements, the motion for continuance shall not be granted, and the court may impose sanctions as provided in section 1050.5. (§ 1050, subds. (c), (d).) ²

Petitioner's response emphasized the People's failure to properly request a continuance. Petitioner contended that Deputy District Attorney Somers appeared before him in Department 1, on April 8, 1996, and the jury trial was trailed to the following day. On April 9, the case was put over to April 11, because Somers was in trial on another case. Petitioner informed him that a new prosecutor would have to be assigned in People v. James. On April 11, Deputy District Attorney Elizabeth Anderson appeared before petitioner and stated that, on the previous day, Deputy District Attorney Carla Grabert had been reassigned to replace Somers as trial counsel in James. Petitioner sent the matter to trial before Judge Twisselman, who presided in department 8.

Petitioner believes that when the parties arrived in department 8, Chief Deputy District Attorney Dan Sparks appeared on behalf of the People, requesting a continuance. Judge Twisselman sent the parties back to department 1, where motions for continuance were considered. Petitioner sent the parties back to department 8, because a motion for a continuance had not been filed. He recalls that, "It is possible that on this trip Sparks indicated his desire to make a record." Petitioner believes that he informed the prosecutor that the proper place in which to make that record was before Judge Twisselman in department 8.

After the parties returned to department 8, Judge Twisselman called petitioner to discuss the case. They agreed that the matter should be heard in department 1. Deputy District Attorney Sparks thereafter informed petitioner that the People were not ready to proceed to trial, but that Deputy District Attorney Grabert would be ready to proceed on April 15. (The last day on which the trial could commence under the relevant statute was April 18, but section 1050, subdivision (g), permitted that deadline to be extended 10 days, until April 28.) Deputy District Attorney Sparks orally moved for a continuance, which was denied, as set forth in the following colloquy:

"DDA Sparks: 'The People are not ready. The assigned attorney is Mr. Somers. He is engaged in another case in Department 2. I...