People v. Smith CA2/8 ( 2021 )

Filed 4/20/21 P. v. Smith CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE B303440
OF CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. SA069183)
v.
MARLON SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William L. Sadler, Judge. Reversed.
Lise M. Breakey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson and Marvin E. Mizell, Deputy
Attorneys General for Plaintiff and Respondent.
_________________________
INTRODUCTION
Appellant filed a motion to expunge his criminal conviction.
Before his appointment to the bench, the judge who heard and
denied the motion was appellant’s defense attorney in the same
case. Appellant asks us to reverse the order denying his motion
on the ground he was denied an impartial tribunal, a due process
violation. We agree and reverse.
BACKGROUND
In 2009, appellant, while represented by attorney William
L. Sadler, pled no contest to one stalking-related offense and was
sentenced to formal probation. Appellant entered his plea
pursuant to an agreement whereby the People agreed to move to
dismiss 10 remaining counts. Mr. Sadler joined in the waivers
and plea, and stipulated to a factual basis pursuant to the facts
stated in the police report and the preliminary hearing
transcript. In 2015, appellant admitted violating the terms of his
probation. The trial court found him in violation and imposed a
four-year sentence. Appellant was ordered to surrender to
commence his sentence. He did not surrender and the trial court
issued a bench warrant.
On April 9, 2019, the People asked the court to recall the
bench warrant and terminate probation because appellant was in
federal custody until 2029 serving another sentence. The court
granted those requests.
On August 14, 2019, appellant, in pro per, filed a motion to
expunge his stalking conviction. Appellant was not present at
the October 17, 2019 hearing on the motion because he was in
federal custody; neither was he represented by counsel. The
People opposed the motion. The trial court, now presided over by
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the Honorable William L. Sadler, treated the motion as one filed
under Penal Code section 1203.4 and summarily denied it.
Appellant filed a timely notice of appeal.
STANDARD OF REVIEW
Where, as here, the relevant facts are undisputed, the
weight of authority supports application of a de novo standard to
review whether the trial judge should have been disqualified.
(Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391–392
[de novo review of statutory disqualification motion based on the
appearance of partiality].)
DISCUSSION
A. Code of Civil Procedure Section 170.1 Mandates
Disqualification of the Trial Judge
Code of Civil Procedure section 170.1, subdivision (a)1
provides as follows: “A judge shall be disqualified if any one or
more of the following are true: [¶] . . .[¶] (2)(A) The judge served
as a lawyer in the proceeding, or in any other proceeding
involving the same issues he or she served as a lawyer for a party
in the present proceeding or gave advice to a party in the present
proceeding upon a matter involved in the action or proceeding.”
(§ 170.1, subd. (a)(2)(A).) Our Supreme Court has issued an
ethical opinion that parallels the code. “Where a judge has
previously acted as an advocate for one party in a proceeding that
later comes before that judge, the law, quite logically, presumes
an impairment of impartiality.” (Disqualification for Prior
1 All undesignated statutory references are to the Code of
Civil Procedure.
3
Appearance as Deputy District Attorney, CJEO Formal Opn.
No. 2015-007 (2015) p. 2.)
The parties do not dispute that the trial judge here,
William Sadler, acted as appellant’s attorney in the very same
case and therefore comes within this provision. As a result, he
should have been mandatorily disqualified from acting as the
trial judge under section 170.1. (See People v. Barrera (1990)
70 Cal.App.4th 541, 547 (Barrera) [disqualification may not be
waived and is mandated where commissioner previously
represented defendant as a deputy public defender].)
The People argue appellant’s claim under section 170.12 is
not cognizable because such a claim is reviewable only by petition
for writ of mandate, not by direct appeal. It is true section 170.3,
subdivision (d) provides that a petition for writ of mandate is the
exclusive means of review of a statutory judicial disqualification
claim. (People v. Brown (1993) 6 Cal.4th 322, 334 (Brown).)
However, there are at least two exceptions to this rule. The first
is explicit in Barrera’s discussion of the statutory limitation: “We
conclude, therefore, that in a case such as this . . . parties who
were aware of the basis for disqualification and chose to waive it
are bound by the requirements governing review set forth in
subdivision (d) of section 170.3. Absent a timely petition for a
writ, the issue is not reviewable.” (Barrera, supra,
70 Cal.App.4th at p. 552, italics added.)
2 It is unclear if appellant is relying on section 170.1,
subdivision (a)(2)(A) or if appellant is making a constitutional
claim only. The People responded to both theories and so do we.
4
The parties to this appeal do not dispute that appellant was
not present at the hearing and not represented by counsel. Nor
does the record indicate appellant was advised in advance by the
court that Judge Sadler would be hearing the motion. Because
the record does not reflect appellant was aware of a basis for
disqualifying the trial judge, we conclude he is not required to
perfect his challenge to Judge Sadler by way of petition for writ of
mandate.3 Our conclusion is supported by the purpose of the
rule, which is to prevent knowledgeable parties from sitting on
their rights, secure in the knowledge that if any portion of the
remainder of the case were adjudicated unfavorably to them, an
appeal would “obtain a reversal of the judgment and ‘a second
“bite” at the apple.’ ” (Barrera, supra, 70 Cal.App.4th at p. 551.)
The second exception is also grounded in notice. Relief is
available to a party who, with due diligence, discovers the
grounds for disqualification only after judgment is entered or an
appeal filed. (Christie v. City of El Centro (2006) 135 Cal.App.4th
767, 776.) The record reflects appellant would not have been
aware of the grounds for disqualification until he learned that
Judge Sadler had presided over his motion. That would have
3 The People acknowledge that nothing in the record
indicates appellant was aware of the name of the judge that
would be assigned to hear his expungement motion and that his
reliance on section 170.1 may not be forfeited under section
170.3, subdivision (c)(1) which provides that a disqualification
motion shall be made at the “earliest practicable opportunity”
after discovering grounds therefor. (Magana v. Superior Court
(2018) 22 Cal.App.5th 840, 856.) Nevertheless, the People press
their contention that a petition for writ of mandate is the only
way to obtain relief on this claim.
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been after the court notified appellant of Judge Sadler’s order.
As a result, this appeal is the “earliest practicable opportunity” to
raise the issue. (§ 170.3, subd. (c)(1); In re Steven O. (1991)
229 Cal.App.3d 46, 53.)
Section 170.1 mandated Judge Sadler’s disqualification and
his failure to recuse himself compels reversal of the order.
(Christie v. City of El Centro, supra, 135 Cal.App.4th at p. 776
[orders of disqualified judges are void or, according to some
authorities, voidable]; People v. Crappa (1925) 73 Cal.App.
260, 261 [where judge was former prosecuting attorney, judgment
reversed because section 170 is “too plain to admit of controversy,
and the disqualification of the trial judge is clear.”].)
B. Judge Sadler’s Failure to Disqualify Himself Violated
Appellant’s Due Process Rights
Although, as set out above, a statutory claim of
disqualification generally requires timely writ review, a due
process claim alleging judicial bias is reviewable by direct appeal.
(People v. Peoples (2016) 62 Cal.4th 718, 787; Brown, supra,6 Cal.4th at p. 335-336.) Appellant makes such a due process
claim and we agree a violation of due process occurred here.
Under both the state and federal Constitutions, a
defendant has due process rights to be tried by an impartial
judge. (People v. Peoples, supra, 62 Cal.4th at p. 788; Arizona v.
Fulminante (1991) 499 U.S. 279, 309.) A showing of actual bias is
not required. (Caperton v. A.T. Massey Coal Co., Inc. (2009)
556 U.S. 868, 885.) As the United States Supreme Court has
stated, “Bias is easy to attribute to others and difficult to discern
in oneself.” (Williams v. Pennsylvania (2016) 136 S.Ct.
1899, 1905.) To establish an enforceable and workable
framework, the Court’s precedents apply an objective standard
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that, in the usual case, avoids having to determine whether
actual bias is present. “The Court asks not whether a judge
harbors an actual, subjective bias, but instead whether, as an
objective matter, the average judge in his position is “likely” to be
neutral, or whether there is an unconstitutional “potential for
bias.” ’ ” (Ibid.) The Court has determined that an
unconstitutional potential for bias exists when the same person
serves as both accuser and adjudicator in the case. (In re
Murchison (1955) 349 U.S. 133, 136–137.) This is so because
even if decades intervene before the former prosecutor revisits
the matter as a jurist, the case may implicate the effects and
continuing force of his or her original decision. Moreover, the
judge’s recollection of evidence he or she may have heard as
counsel in the same matter is “likely to weigh far more heavily
. . . than any testimony given” at trial. (Id. at p. 138.) This
presents the potential risk of the judge calling “on his own
personal knowledge and impression of what had occurred” before
rather than deciding the matter on the evidence placed in the
record by the parties. (Ibid.)
There is no reason to treat jurists who are former defense
counsel in the case any differently than jurists who are former
prosecutors. The risk that the judge will rely on recollected facts
he or she learned as counsel rather than solely on the evidence
currently presented to the court is no different. For this reason
we conclude the potential for actual bias has been shown and a
due process violation has occurred.
C. The Violation Requires Reversal
An unconstitutional failure to disqualify constitutes
structural error not amenable to harmless error review.
(Williams v. Pennsylvania, supra, 136 S.Ct. at p. 1909.)
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DISPOSITION
The order denying the motion to expunge is reversed. The
matter is remanded to the trial court for a new hearing before a
different judicial officer.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.
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