P. v. Freeman 2/5/07 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D046394

Case Date: 05/23/2007

Preview:Filed 2/5/07 CERTIFIED FOR PARTIAL PUBLICATION1

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. MARILYN KAYE FREEMAN, Defendant and Appellant.

D046394 (Super. Ct. No. SCD171601)

D048111, D049238 In re MARILYN KAYE FREEMAN on Habeas Corpus. (Super. Ct. No. SCD171601)

Consolidated appeal from a judgment of the Superior Court, Robert F. O'Neill, Judge, and petitions for writ of habeas corpus. Judgment reversed, petitions denied. Carl M. Hancock for Petitioner and Appellant in nos. D048111 and D046394. Marilyn Kaye Freeman, in pro. per., for petitioner in no. D049238. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1 Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II.

Marilyn Freeman challenges a judgment convicting her of solicitation to commit kidnapping, residential burglary, two counts of stalking, and misdemeanor child endangerment and battery. The offenses arose from Freeman's assaultive conduct towards her teenage daughter, and actions Freeman took against her daughter's foster parents. Freeman argues the judgment should be reversed because the Superior Court judge who presided over her trial had previously disqualified himself and was later reinstated into the case. We agree with Freeman's contention. In pretrial proceedings, the judge recused himself based on his friendship with a judicial colleague who Freeman was rumored to be stalking. When the prosecution later notified the superior court that it had found no evidence to substantiate these stalking rumors, the supervising judge assigned the case to the disqualified judge for trial, essentially retracting the prior disqualification order. The disqualified judge accepted the assignment over Freeman's objection. Freeman did not file a petition for writ of mandate at the time of the reinstatement. Thus, she may not obtain appellate review of error under California's statutory disqualification scheme, but she is entitled to review for constitutional due process error. For reasons we shall explain in the published portion of this opinion, we conclude that fundamental due process error occurred when the judge, previously recused for bias, was reinstated into the case notwithstanding the repeated protests of the defendant and under circumstances reflecting a persistent appearance of bias. The judge's reinstatement created a serious likelihood of undermining public confidence in an impartial judiciary,

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and created an error of constitutional dimension. Because the error affected the integrity of the judicial process, reversal is required. In the unpublished portion of this opinion, we reject Freeman's arguments that the trial court erred in denying her motions for acquittal and that she could not properly be charged with solicitation to commit kidnapping. Thus, there is no bar to retrial on the charged counts. We also deny Freeman's two petitions for writ of habeas corpus that raise issues related to those presented in her appeal. FACTUAL AND PROCEDURAL BACKGROUND In the published portion of this opinion addressing Freeman's challenge to the reinstatement of the disqualified judge, we need only briefly summarize the facts underlying the offenses. In accord with our standard of review on appeal, we present the facts in the manner most favorable to the judgment. (People v. Dayan (1995) 34 Cal.App.4th 707, 709.) On September 10, 2002, Freeman'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. Freeman, 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. Freeman 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"

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when she was spotted, spied on them at their residence and elsewhere, took pictures of them, and sprayed her perfume in their vehicle. The jury found Freeman guilty of solicitation to commit kidnapping, residential burglary, stalking, and misdemeanor child endangerment and battery. She was sentenced to prison for six years. DISCUSSION I. Challenge to Reinstatement of Disqualified Judge Freeman asserts Superior Court Judge Robert O'Neill, who had disqualified himself for bias during pretrial proceedings, was erroneously reinstated to preside over her trial. A. Background On December 19, 2002, after Freeman was arrested and taken into custody, Judge O'Neill presided over a readiness conference. Before the hearing commenced, defense counsel advised Judge O'Neill that Freeman wanted new appointed counsel and asked for a Marsden2 hearing. After considering Freeman's and her counsel's input, the trial court granted the request for new counsel. At the conclusion of the Marsden hearing, Freeman, who was still in custody, requested that Judge O'Neill conduct a bail review hearing. Freeman stated that she wanted to request house arrest because there were "rumors through the back hallways that [she] was stalking" another Superior Court judge, Judge Harry Elias. The stalking

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People v. Marsden (1970) 2 Cal.3d 118. 4

rumors apparently arose from matters observed on Freeman's computer that had been seized by the authorities in connection with the current case. Judge O'Neill stated that he had heard about the allegation, and explained that he had known Judge Elias for 23 years, they had worked together in the district attorney's office, and they were friends. Because of his relationship with Judge Elias, Judge O'Neill decided to "recus[e] [himself]" from the bail issue. Freeman informed Judge O'Neill that in another proceeding Judge Elias "made it very clear he [did not] think there [was] any substance to [the stalking rumors]." Notwithstanding this representation by Freeman, Judge O'Neill reiterated he was not "the person [who] should hear" Freeman's bail motion. Further, Judge O'Neill suggested that given the allegations concerning Judge Elias, Freeman might want to discuss with her counsel whether the bail issue should be considered by a judge who was not a member of the San Diego County Superior Court bench. At a rescheduled readiness conference on January 6, 2003, Freeman's new counsel advised Judge O'Neill that Supervising Criminal Judge Peter Deddeh had requested that all further dates be set in his department so that the case could be assigned to an "independent retired judge." Judge O'Neill complied and set the subsequent proceedings to be heard in Judge Deddeh's department. Between January and early September 2003, Judge Deddeh and several other San Diego judges presided over additional hearings related to appointment of counsel, bail review, discovery, and other matters. On September 3, 2003--in an apparent effort to avoid potential conflicts with the local bench given the Judge Elias stalking rumors-- 5

Judge Deddeh assigned the case to retired Judge Charles Jones for all purposes. Judge Jones presided over the preliminary examination and bound Freeman over for trial. Between September 2003 and April 2004, Judge Jones presided over various pretrial matters. At a May 14, 2004 status conference, the district attorney advised Judge Jones that "the reason [for the assignment of the case to him] no longer exists." Accordingly, Judge Jones stated he would "transfer the matter back to [Judge Deddeh] . . . and let him decide" which judge should be assigned to the case. At a hearing on May 14, 2004, Judge Deddeh concluded there was no need for recusal of the San Diego County Superior Court bench, explaining: "[T]he only reason the bench was being recused [was] because there [was] a possibility that . . . on Miss Freeman's computer there was some indication that she was stalking Judge Elias. Apparently the computer has been reviewed. So out of an abundance of caution, [the prosecution] said Judge Elias may be a victim in this case. And so apparently he's not a victim in this case. And so there is apparently no reason for the bench to recuse itself." Judge Deddeh then assigned the case to Judge O'Neill for all purposes. At this point, Freeman objected (speaking directly to the court and not through her counsel), asserting that Judge O'Neill had already recused himself because he was "a good friend of Judge Elias." Judge Deddeh rejected the assertion, noting the Judge Elias matter had been resolved, but that Judge O'Neill could himself decide whether this was "an issue for him." On May 14, 2004, Freeman personally filed a handwritten challenge to Judge O'Neill. The pleading stated that Freeman was challenging Judge O'Neill "for cause," 6

and cited the circumstances of Judge O'Neill's December 2002 recusal. Freeman's counsel did not join in the challenge. On May 20, 2004, Judge O'Neill and Judge Deddeh evaluated the motion in a series of hearings. Judge O'Neill's minute order reflecting actions at a 9:00 a.m. hearing states: "Peremptory challenge (declaration) filed. Per the court, file to be sent back to Dept. 11 for reassignment."3 In Department 11, Judge Deddeh ruled that the challenge could not be honored unless it was filed by defense counsel, and transferred the matter back to Judge O'Neill. At a 10:00 a.m. hearing before Judge O'Neill, Judge O'Neill initially analyzed the challenge as if it were a peremptory challenge under Code of Civil Procedure section 170.6, but Freeman's counsel interjected that the challenge was for cause (i.e., Code Civ. Proc.,

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