THOMAS B. FLETCHER, a Judge of the Superior Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent, 19 Cal. 4th 865

Opinion THE COURT. Judge Thomas B. Fletcher of the Madera Superior Court has petitioned for review of the recommendation of the Commission on Judicial Performance (Commission) that we remove him from office for willful misconduct and “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” (prejudicial misconduct). (Cal. Const., art. VI, § 18, former subd. (c) (former subdivision (c)), see now art.

VI, § 18, subd. (d).) Judge Fletcher (petitioner) concedes that he committed some of the misconduct underlying the recommendation and that “his actions call for severe censure.” However, he contests many of the Commission’s misconduct findings and argues that removal “is inappropriately harsh under the facts” of this case. Having independently reviewed the record, we find clear and convincing evidence to sustain all but one of the Commission’s misconduct findings.

Moreover, although some of the incidents of misconduct may seem relatively minor, many unquestionably are not, and the record as a whole establishes a persistent pattern of misconduct that reflects a lack of judicial temperament. Accordingly, we adopt the Commission’s removal recommendation. I. Procedural Background In 1988, petitioner was elected, and then appointed, as Judge of the Sierra Justice Court in Madera County. He was later reelected to that office for a term beginning in January 1995.

However, at that time, he became a municipal court judge of the Sierra Judicial District by operation of Proposition 191. By virtue of court consolidation on July 1, 1998, while this matter was pending, petitioner became a judge of the Madera Superior Court. In February 1995, the Commission voted to initiate formal proceedings against petitioner. It later prepared a notice of formal proceedings alleging numerous counts of either willful or prejudicial misconduct, and two amended notices of formal proceedings.

On February 20, 1996, before three special masters this court appointed, an eight-day hearing began on the charges in the Commission’s second amended notice of formal proceedings, which alleged nineteen counts (many with subcounts) of either willful or prejudicial misconduct. The special masters filed their final report with the Commission on June 4, 1996, finding that petitioner had committed either willful or prejudicial misconduct in a number of the instances alleged. After hearing oral argument as scheduled on August 22, 1996, the Commission ordered the case submitted.

Petitioner, who failed to appear on ' August 22, moved to vacate submission, explaining that he had received a letter containing the notice of the August 22 argument but never opened it. The Commission granted the motion and held argument on October 23, 1996. It issued its decision and recommendation on January 10, 1997. Seven members of the Commission voted to recommend petitioner’s removal from office; the remaining three members voted for severe public censure. Petitioner filed his petition with this court in July 1997. II. Applicable Legal Standards As relevant in this case, former subdivision (

c) authorized removal of a judge from office for “willful misconduct in office.” Willful misconduct is “unjudicial conduct committed in bad faith by a judge acting in his judicial capacity.” (Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778, 795 [119 Cal.Rptr. 841, 532 P.2d 1209] (Spruance).) As we recently explained in Broadman v.

Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1092 [77 Cal.Rptr.2d 408, 959 P.2d 715] (Broadman), to support a finding of bad faith, the evidence must establish that the judge performed a judicial act (1) “for a corrupt purpose (which is any purpose other than the faithful discharge of judicial duties),” or (2) “with knowledge that the act is beyond the judge’s lawful judicial power,” or (3) “that exceeds the judge’s lawful power with a conscious disregard for the limits of the judge’s authority.” Former subdivision (

c) also authorized removal of a judge from office for prejudicial misconduct, i.e., “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Prejudicial misconduct includes acts that a judge “undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office.” (Geiler v.

Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 284 [110 Cal.Rptr. 201, 515 P.2d 1], fn. omitted.) It also includes “wilful misconduct out of office, i.e., unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity.” (Id. at p. 284, fn. 11.) “In this context, bad faith means a culpable mental state beyond mere negligence and consisting of either knowing or not caring that the conduct being undertaken is unjudicial and prejudicial to public esteem.

In sum, to constitute prejudicial conduct, a judge’s actions must bring ‘the judicial office into disrepute,’ that is, the conduct would appear to an objective observer to be prejudicial to ‘ “public esteem for the judicial office.” ’ [Citation.]” (Broadman, supra, 18 Cal.4th at p. 1093.) In reviewing the Commission’s removal recommendation under former subdivision (c), we may consider only those misconduct charges that the Commission has sustained. (Broadman, supra, 18 Cal.4th at p. 1089.) We independently review the evidentiary record and will sustain the charges of misconduct only if clear and convincing evidence proves them to a reasonable certainty. (Kennick v.

Commission on Judicial Performance (1990) 50 Cal.3d 297, 314 [267 Cal.Rptr. 293, 787 P.2d 591, 87 A.L.R.4th 679] (Kennick).) We give “ ‘special weight’ ” to the special masters’ factual determinations, because they “had the advantage of observing the demeanor of the various witnesses. [Citations.] In addition, in recognition of the Commission’s expertise, we accord ‘great weight’ to the Commission’s conclusions of law. [Citations.]” {Dodds, supra, 12 Cal.4th at p. 168.) Based on our factual findings and legal conclusions, we then determine independently what, if any, discipline is appropriate. (Id. at pp. 168-169.) III.

Specific Charges As we have noted, petitioner concedes he committed prejudicial misconduct in some instances. However, he challenges many of the Commission’s findings of prejudicial misconduct and all of its findings of willful misconduct. Because they are relevant to the proper level of discipline, we first briefly summarize the uncontested charges. We then consider the contested charges. A. Conceded Prejudicial Misconduct 1.

Count Four: Improper Entry of Judgment Against Nonparty On November 30, 1992, in a small claims matter involving construction work done on property, judgment was entered for Thom Hertwig against Tyrone Henderson as agent for Rickey Henderson. In January 1993, Hertwig amended his claim to add Rickey Henderson as a defendant. On May 24, 1993, the parties appeared for trial, and petitioner conducted a settlement conference. Also present was Ben Savage, the realtor who had sold the property to Rickey Henderson, who came to court as a witness for Hertwig.

The parties agreed to a settlement, and a judgment was entered on May 24, 1993, directing Rickey Henderson to pay Hertwig $1,357.93. According to petitioner, the judgment did not mention Savage because Savage, although agreeing to pay damages, did not want a judgment entered against him. Savage disputed petitioner’s recollection, testifying that he did not agree or respond when petitioner stated at the settlement conference that Savage should pay half of the damages. Savage later failed to pay Hertwig.

In February 1994, although Savage had never been named or served in the action, petitioner directed entry of a “corrected” judgment that identified him as a defendant and directed him to pay damages. Savage appealed to the superior court, which reversed the judgment. On these facts, the Commission unanimously concluded that petitioner committed prejudicial misconduct because he “made no effort to comply with or follow the law when he entered judgment” without providing Savage, who was never named as a party, notice and an opportunity to be heard.

The Commission reasoned that petitioner “acted solely upon his belief that Savage ought to pay, and his pique that [Savage] did not.” Petitioner does not contest the Commission’s findings and conclusion. (See Gonzalez v. Commission on Judicial Performance (1983) 33 Cal.3d 359, 374 [188 Cal.Rptr. 880, 657 P.2d 372] (Gonzalez) [basing discipline on “disregard for even the minimal requirements of fairness and due process”].) 2. Count Ten: Improper Comments About Counsel Attorney Nancy Staggs, who was representing a criminal defendant before petitioner, did not appear at a scheduled hearing.

After an unrecorded telephone conference with Staggs’s office, petitioner stated in open court: “She shouldn’t be handling criminal cases. [^] Here’s another example of a civil attorney who shouldn’t be handling criminal cases.” Petitioner then commented that Staggs “probably had something more important to do today, like go to a PTA meeting.” He continued: “She has a whole bunch of kids.

She’s been having kids ever since I’ve known her.” Before the special masters, petitioner denied making these comments, suggested that the court reporter “made [them] up” to assist petitioner’s political opponents, and stated that he had instead made complimentary remarks about Staggs. However, he also admitted sending Staggs a letter of apology. In his petition to this court, petitioner “accepts the [Commission’s unanimous] finding that his statements concerning Ms.

Staggs were inappropriate and could be deemed” prejudicial misconduct. (See Kennick, supra, 50 Cal.3d at p. 325 [basing finding of prejudicial misconduct on “unprofessional, demeaning and sexist” remarks].) 3. Count Fourteen: Improper Use of Court Staff for Campaign Purposes During the first half of 1994, petitioner was running for reelection; the primary was scheduled for June 7, 1994. At the end of a court session in late April 1994, petitioner had a group photograph taken of court staff and others who appeared before him.

Petitioner’s clerk and the public defender initially declined petitioner’s request that they pose for the picture. The public defender was busy with clients when petitioner came to her office and made the request. However, after petitioner “insisted” that they participate, both reluctantly agreed. Petitioner’s clerk felt that petitioner had “ordered” her to participate and that she had no choice. Based on petitioner’s representations, almost all of those photographed believed the picture was simply a personal memento; none understood that petitioner would use it in his reelection campaign.

Indeed, both the public defender and the clerk had informed petitioner they did not want to be involved in the campaign. Despite this knowledge and contrary to his representations, in May 1994, petitioner asked a local newspaper to print the photograph. The newspaper responded that, because of the imminent election, it would not do so without charge, and that it would publish the photograph only as a paid advertisement. Petitioner agreed to pay to have the picture published.

On May 26, one week before the election, the picture appeared in the paper with the caption, “Paid Political Advertisement.” On this record, the special masters concluded that “part of [petitioner’s] motivation in placing the advertisement was to assist his re-election campaign,” and that by failing to get consent from those photographed, his “conduct surrounding the taking and use of the photograph . . . constitute^]” prejudicial misconduct. The Commission unanimously agreed.

In this court, petitioner “concedes the sufficiency of the evidence to sustain” the conclusion that he committed prejudicial misconduct in using the photograph for political purposes without getting consent from all participants. However, he contests the conclusion that his conduct surrounding the taking of the photograph constituted prejudicial misconduct. In light of the circumstances here, we reject petitioner’s contention. Petitioner himself testified that at least part of his purpose in having the picture taken was to assist his campaign.

By insisting (over objections) that everyone participate, securing cooperation by stating that the picture was simply a personal memento, and failing to disclose his intent to use the picture in his campaign, petitioner committed prejudicial misconduct both in taking and using the picture for campaign purposes. (See Gonzalez, supra, 33 Cal.3d 359 at p. 374 [“exploitation of judicial office for political ends seriously and impermissibly undermines public esteem for the impartiality and integrity of the judiciary”].) 4.

Count Seventeen: Telling Clerk She Was in Contempt On August 12, 1992, petitioner met in his chambers with a court clerk to discuss her “pending termination from employment.” After petitioner informed the clerk of the meeting’s purpose and that he was tape-recording their conversation, the clerk replied that she did not want to discuss the issue unless her union representative was present, and she started to leave. Petitioner then stated: “Sit down . . . .Iam ordering you to sit down here and talk to me.” The clerk left petitioner’s chambers.

Petitioner followed her and “ordered her back into the office,” but “she refused to come” and made a telephone call. As she made the call, petitioner, who was “upset,” said “loudly”: “[Y]ou are in contempt.” Petitioner “does not dispute” the Commission’s unanimous finding that he committed prejudicial misconduct in making this statement. 5. Count One A: Ex Parte Communications Regarding Richard Henderson After his arrest on June 26, 1994, Richard Henderson was charged with possession of cocaine and marijuana.

Petitioner later spoke with Henderson’s uncle, who asked petitioner whether Henderson’s mother could talk to him about Henderson’s case and about helping Henderson with his drug problem. Petitioner replied that she could call him, but advised that she should not discuss the case with him. Henderson’s uncle, who is a clergyman, expressed an interest in counseling Henderson. Henderson’s mother telephoned petitioner at his home a few days later to discuss her son’s case and to make an appointment to see petitioner. She related Henderson’s version of the arrest to petitioner.

She also told petitioner that her son had a drug problem and smoked marijuana with his father. She requested that her son receive a heavy sentence that included Christian counseling. Petitioner, who knew the case would be before him, told her the district attorney would decide whether Henderson received drug counseling as part of any disposition.

Petitioner did not believe the contact was improper because he viewed it as “a confidential mother asking for help for her son” and he “believed that [Henderson] would not even know of the conversation.” Petitioner did not believe Henderson was entitled to know petitioner was communicating with Henderson’s family members regarding his drug use. During the conversation, petitioner set up a meeting with Henderson’s parents for sometime during the next two weeks.

On August 2, at the beginning of a hearing on Henderson’s case, petitioner met with counsel in his chambers and disclosed his discussion with Henderson’s parents and uncle about counseling, and the uncle’s desire to be involved in the counseling. He also informed counsel that, because of these contacts, he was “out of this case,” and the probation department should consider whether Henderson qualified for diversion and counseling. After the probation department prepared the diversion report, but before a scheduled September 6 diversion hearing, petitioner met with Henderson’s parents in his chambers.

He gave them a copy of the diversion report and the police report “so they could see the situation there and the problems that they ha[d] with their son.” He also advised them about how to deal with Henderson. Henderson’s parents again requested that their son receive a heavy sentence that included Christian counseling. Petitioner replied that he could not order someone to receive Christian counseling. Sometime after Henderson received diversion, his father left a telephone message for petitioner.

When petitioner returned the call, Henderson’s father stated that Henderson was not complying with diversion requirements. Petitioner then determined that the probation department had not received notice Henderson was on diversion because the minute order did not reflect this disposition. The Commission unanimously found that petitioner’s ex parte contacts with members of Henderson’s family constituted prejudicial misconduct.

Petitioner concedes that these contacts “gave ‘rise to an appearance of impropriety,’ ” “could reasonably be considered prejudicial to public esteem for the judicial office,” and “constituted prejudicial conduct.” (See former Cal. Code Jud. Conduct, now Cal. Code Jud. Ethics, canon 3B(7), adopted eff. Oct. 5, 1992 [prohibiting ex parte communications].) B. Contested Charges 1.

Counts One A and Three: Handling of the Henderson Matter In connection with the Richard Henderson matter, the Commission also unanimously concluded that petitioner committed prejudicial misconduct in failing to disqualify himself and willful misconduct in directing alteration of court records to mislead the Commission. (

a) Count One A: Failure to Disqualify At the August 2 hearing on Henderson’s case, defense counsel stated that Henderson had said petitioner was a friend of Henderson’s uncle and that diversion was “a done deal.” According to petitioner, on hearing this information, he concluded that Henderson did not deserve diversion because he was using his parents and uncle to manipulate the court. At that point, petitioner determined that his ex parte contacts and his feelings about Henderson had created a conflict and he decided to disqualify himself from making the diversion decision.

Petitioner informed counsel of his decision, referred the matter to the probation department for preparation of a diversion report, and scheduled a diversion hearing for September 6. The probation department’s report recommended against diversion, finding Henderson statutorily ineligible because of a prior conviction. At the September 6 hearing, the district attorney expressed willingness to consider diversion despite the recommendation. After Henderson’s counsel asked the court to consider diversion, petitioner replied: “Well, I don’t want to consider it. Number one is because ... I know his uncle.

I’ve talked to his uncle about getting him diversion and getting him treatment. And because of that, I don’t think I should make the decision.” Defense counsel then asked: “Should we send it down to Madera Justice Court?” Petitioner replied: “No. I—if you two can work it out, that’s fine with me.

I’ll go along with anything. fl[] I just want to put it on the record that I’ve talked to his uncle about helping him on a diversion, if he gets diversion. [H] And I think if I got involved in overruling the Probation Department at this point, I think it would be a conflict.” Contrary to his stated intent, petitioner then discussed with counsel Henderson’s prior conviction, the reported level of his drug use, and his family situation, remarking on comments Henderson’s uncle had made to petitioner about this subject.

When defense counsel suggested getting a second probation report, petitioner replied: “I don’t think they’re going to change their mind.” Counsel then asked: “You don’t want to have another report?” Petitioner responded: “No. That would just tick them off.” Defense counsel then expressed doubt about the probation department’s conclusion regarding statutory eligibility. Petitioner then interjected: “Yeah, well, the problem is, too, it says here, a ‘daily use of cocaine.’ [^] And diversion . . . was originated for people who are in danger or might become endangered.

When you have a regular user, C.R.C. is the place for them.” Petitioner also expressed doubt about the relevance of the fact that Henderson had not been caught using drugs for some time. Finally, petitioner asked: “What do the People want to do?” The district attorney then suggested getting a “rap sheet” and noted “numerous instances” where the court, on the prosecution’s recommendation, had overridden the probation department’s recommendation. Petitioner replied: “Absolutely. No problem with that.

HQ But I told you I have a conflict with that.” At counsel’s suggestion, petitioner then continued the diversion hearing to September 20 and set it before himself. At the hearing on September 20, the district attorney recommended diversion. Petitioner responded: “All right. [H] I told you that I wasn’t going to make the decision in this.

It’s up to you.” Henderson’s counsel “ask[ed] for the court’s order for diversion even though the [probation] report [did] not seem to be too favorable.” Petitioner replied: “All right. [*[[] Then . . . under the People’s recommendation, I’ll grant you diversion.” He also directed Henderson to appear on March 21, 1995, for review of his compliance with the terms of diversion.

Petitioner later explained to the Commission: “I should have denied the [diversion] request and set the case for another hearing with another Judge, but knowing that the Court usually goes along with the D.A. recommendation in these type [sic] of cases, and the problem of getting a visiting Judge on a Tuesday for one case, I went along with the D.A. and granted diversion.” On this record, the Commission unanimously adopted the special masters’ conclusion that petitioner committed prejudicial misconduct by “fail[ing] to disqualify himself after the ex parte communications” and improperly “delegat[ing] his [judicial] power [to order diversion] away to the District Attorney to avoid a conflict.” Petitioner challenges these conclusions, noting that he “fully disclosed his [ex parte] contact,” he indicated he did not want to decide the diversion question because of a conflict, the parties did not seek his recusal, and he had no independent duty to disqualify himself.

He also challenges the conclusion that he improperly delegated his judicial authority, arguing that diversion was a “foregone conclusion” in this case. We find clear and convincing evidence to support the Commission’s conclusions. By statute, a judge “shall be disqualified” if “[f]or any reason (

A) the judge believes his or her recusal would further the interests of justice, (

B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (

C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ.

Proc., § 170.1, subd. (a)(6).) Petitioner was disqualified under this provision; he himself testified before the special masters that he had personal feelings about the propriety of granting diversion and that he should therefore not participate in the decision, based on his ex parte communications and Henderson’s comment to his attorney that diversion was “a done deal.” As petitioner later explained to the Commission: “I wasn’t going to make the [diversion] decision, because I felt if I denied diversion it would look like I was mad at them, which I was. [^] I was very angry at Mr.

Henderson for playing games with his family .... And I felt that I needed to get out of the case.” Disqualification based on the judge’s “personal bias or prejudice concerning a party” may not be waived. (Code Civ. Proc., § 170.3, subd. (b)(2)(A).) Moreover, even as to waivable disqualifications, a waiver must be written, “signed by all parties and their attorneys and filed in the record.” (Code Civ. Proc., § 170.3, subd. (b)(1); see Adams v.

Commission on Judicial Performance (1995) 10 Cal.4th 866, 906 [42 Cal.Rptr.2d 606, 897 P.2d 544] (Adams).) Thus, petitioner’s suggestion that the parties waived the disqualification is unconvincing. We also agree that petitioner improperly delegated his judicial authority regarding diversion to the district attorney. Petitioner incorrectly contends that, because diversion was a “foregone conclusion” in this case, delegating this decision did not constitute prejudicial misconduct.

Regardless of the likelihood that Henderson would receive diversion, as petitioner conceded during the Commission proceedings, “legally it was [petitioner’s] decision,” and he “should have ... set the case for another hearing with another Judge” rather than address his conflict by ceding his power to the district attorney. Petitioner’s decision to follow the latter course constituted prejudicial misconduct. (See McCartney v.

Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 532 [116 Cal.Rptr. 260, 526 P.2d 268] (McCartney) [judge improperly delegated judicial power and committed misconduct by imposing sentences bailiff suggested]; cf. Fewel v. Fewel (1943) 23 Cal.2d 431, 436 [144 P.2d 592] [judicial decisionmaking “ ‘may not be delegated to investigators or other subordinate officials or attachés of the court, or anyone else’ ”].) (

b) Count Three: Alteration of Court Records The record contains three documents entitled “Notice, Sentence, Commitment Form” that purport to memorialize Henderson’s September 20 diversion hearing. As to disposition, the first, exhibit No. 17, is blank. The second, exhibit No. 18, appears to be a copy of the first with addition of the following handwritten entry for Henderson’s sentence: “Formal Diversion granted. Father to find counselling program.” The third, exhibit No. 19, appears to be a copy of the second with a handwritten addition indicating, “per Dan Pursell,” who was the district attorney on the case.

Toward the bottom of the form, the following phrase was added to exhibit No. 19: “Judge Fletcher Disqualifies himself for any violation of Diversion Hearings.” Finally, a handwritten “Post-it” note attached to exhibit No. 19 stated: “Judge Fletcher—disq. himself.” On October 26, one of the court clerks, Fran Saunders, faxed exhibit No. 18 to the probation department to inform it of the diversion disposition. On October 25, the Commission sent petitioner a letter of inquiry regarding the ex parte contacts and the grant of diversion in the Henderson matter.

Petitioner’s December 30 response to the Commission letter attached a copy of exhibit No. 19, but did not inform the Commission that the exhibit contained entries that did not appear on exhibit No. 18. On November 2, the Commission obtained a copy of exhibit No. 18 from the probation department as part of the investigation of petitioner. In January 1995, the Commission asked petitioner to comment on allegations that, between October 26, 1994, and his December 30 response to the Commission, during the Commission’s investigation, he directed alteration of the original minute order.

Saunders testified as follows regarding preparation of these documents: On September 20, 1994, or sometime after that date but before October 26, she prepared a minute order in the form of exhibit No. 18. She received a telephone call from the probation department regarding the status of the case. In response to the inquiry, on October 26, she faxed the probation department a copy of the then existing minute order, which was in the form of exhibit No. 18.

A few days later, petitioner approached Saunders and directed her. to change the minute order to reflect that he had disqualified himself from future hearings in the case and that diversion was granted “per Dan Pursell.” She asked petitioner whether he wanted her to prepare an amended minute order, because the court’s policy was to prepare amended orders when existing orders were changed. Petitioner “said no, he didn’t, just to change it.” Saunders did not recall petitioner’s stating in court on September 20 that he was disqualifying himself from hearings on diversion violations.

She testified that the minute order she originally prepared would have reflected that disqualification had she heard petitioner make that statement. On this record, we agree with the Commission’s unanimous conclusion that petitioner committed willful misconduct in his handling of the minute orders. Petitioner directed the clerk to alter a minute order and, contrary to court policy, not to indicate she had changed the order. The evidence strongly suggests he took this action after receiving the Commission’s inquiry about his ex parte communications in the case.

Petitioner told the Commission he received the inquiry within 48 hours of an October 26 telephone conversation with Henderson’s father, and Saunders testified that petitioner directed her to alter the minute order within a few days of that date. In any event, petitioner submitted a copy of exhibit No. 19 to the Commission with his December 30 response without disclosing that he had directed alteration of the minute order to support his explanation of the events in the Henderson case. Petitioner’s actions in this regard constituted willful misconduct. (See Wenger v.

Commission on Judicial Performance (1981) 29 Cal.3d 615, 643-645 [175 Cal.Rptr. 420, 630 P.2d 954] (Wenger) [backdating affidavit was willful misconduct].) In defense of his actions, petitioner argues that he did not commit willful misconduct because the alterations simply conformed the minute orders to the docket entry for the September 20 hearing, which petitioner asserts “was completed contemporaneously with the court session” and constituted the court’s “official minutes.” This docket entry, petitioner maintains, “was the source of all of the material added to Exhibit 17, to make Exhibits 18 and 19 in order to accurately reflect what had occurred.” “This being so,” petitioner continues, “Exhibits 17, 18 and 19 are merely draft documents that cannot be ‘altered’ and would not mislead experienced readers.” According to petitioner, “[t]he editing of a draft document cannot be an impermissible alteration if the draft document is, as yet, incomplete.” For several reasons, petitioner’s response is unpersuasive.

First, regardless of the docket entry, the fact remains that, during the Commission’s investigation of the Henderson matter, including petitioner’s role in granting diversion, petitioner directed alteration of the order, directed that the order not indicate that it had been altered, and sent the Commission a copy of the altered order without detailing the circumstances.

By forwarding only the altered order, petitioner presented the Commission with a grossly incomplete and misleading response. (See Adams, supra, 10 Cal.4th at pp. 910-911 [judge’s inaccurate and incomplete responses to the Commission constituted willful misconduct].) Second, the record contradicts petitioner’s contention that the docket entry reflects all of the information added to the orders.

The entry states: “Diversion granted; Judge Fletcher disq. himself for any violation of Diversion hrgs.” Although this entry reflects petitioner’s disqualification on future diversion violation hearings, it does not indicate that diversion was granted “per Dan Pursell.” This alteration of the order was important to support petitioner’s claim that, because he had disqualified himself, he let the prosecutor make the initial diversion decision. Third, the record also does not support petitioner’s claim that the docket entry was “completed contemporaneously with” the September 20 hearing.

The initials of the supervising clerk, Velma Dee Buchanan, appear beside the docket entry, indicating that she made it. However, Buchanan was not the clerk for the September 20 hearing; Saunders was. Moreover, Buchanan learned about petitioner’s alleged disqualification sometime after September 20, when petitioner discovered that the case file did not reflect disqualification and informed Buchanan of the situation. The record thus suggests that Buchanan made the docket entry sometime after, and not contemporaneously with, the September 20 hearing.

Fourth, a conflict exists between the docket entry and the reporter’s transcript of the September 20 hearing. Unlike the docket entry, but consistent with Saunders’s recollection, the hearing transcript does not reflect that petitioner disqualified himself from future diversion violation hearings. On the contrary, it shows that petitioner ordered the parties to appear before him again on March 21, 1995, for a compliance review hearing. Consistent with the transcript, on March 21, 1995, Henderson appeared before petitioner for a diversion review hearing.

Given all of the circumstances we have detailed, and the court reporter’s certification that the transcript “comprise[d] a full, true, and correct transcript” of the September 20 hearing, we afford the reporter’s transcript more credence than the docket entry. (See People v. Smith (1983) 33 Cal.3d 596, 599 [189 Cal.Rptr. 862, 659 P.2d 1152].) Finally, petitioner’s current contention that it was unnecessary to mark the altered orders as “corrected” stands in stark contrast to his position and the uncontradicted testimony before the special masters.

In addition to Saunders’s testimony regarding court policy, which we have already discussed, petitioner testified that Saunders should have followed court procedures for preparing an amended minute order in complying with his order to make the alterations.

While cross-examining Saunders, he reiterated that court policy required her to indicate on the altered order that it was “corrected or amended,” and he challenged her testimony that he “told [her] to break that policy and violate the law.” And, in closing argument to the Commission, petitioner again stressed that, “if [clerks] add anything to a minute order after the defendant signed, they are supposed to mark it amended and supposed [to] get the defendant to agree to it.” Buchanan, the court’s supervising clerk, confirmed petitioner’s position, testifying that court policy prohibits clerks from altering signed minute orders like exhibit No. 18 without indicating across the top that they are corrected orders and distributing copies to all parties.

She also testified that petitioner’s policy was to ask for preparation of a corrected minute order if he discovered that a minute order did not reflect his verbal order. Thus, petitioner’s current position is directly contrary to the uncontradicted evidence in the record. Indeed, petitioner’s newly minted explanation is just another example of his vague and contradictory representations throughout these disciplinary proceedings regarding these documents.

Petitioner maintains that Saunders faxed exhibit No. 18 to the probation department at his request after he learned from Henderson’s father on October 26 that Henderson was not complying with diversion requirements. In his February 1995 response to the Commission’s January 1995 inquiry about the matter, petitioner stated: “I don’t recall looking at the minute order or the file on 10-26-94.” Regarding the differences between exhibit Nos. 18 and 19, he stated: “The only explanation I can offer is that Ms.

Saunders sent a Fax copy to the probation department and then added the rest at some later time.” In his answer to the Commission’s notice of formal proceedings, petitioner gave a different account. He there maintained that, after receiving the call from Henderson’s father on October 26, he “pulled the file,” discovered that the minute order did not correctly reflect that Henderson had been granted diversion pursuant to the district attorney’s “decision” and that petitioner had disqualified himself, and “ordered” Saunders to make the necessary corrections and send it to the probation department.

Petitioner’s testimony before the special masters was initially consistent with this latter account, although he additionally noted that the minute order he found in the file on October 26 was in the form of exhibit No. 18. However, after being confronted with his previous position in his February response, petitioner began to waver as to whether he looked at the file after the October 26 phone call. Later, in arguing his case to the Commission, petitioner changed his account once again. He told the Commission that his “only order to Ms. Saunders was to fax” the minute order to the probation department.

Contrary to his testimony before the special masters, petitioner told the Commission that he had not ordered Saunders to amend the minute order. When asked whether he “directed] her to change it in any way,” petitioner replied, “No, I did not,” and he suggested that Saunders made the changes on her own initiative. Of course, as we have explained, petitioner has shifted his position yet again in this court, conceding that he directed Saunders to prepare a corrected minute order, but arguing that this action did not constitute misconduct because the altered documents were merely incomplete draft orders.

Petitioner’s representations regarding his disclosures to the Commission on this topic are similarly confused and inconsistent. Petitioner initially testified that, with his December 30 response to the Commission’s inquiry about ex parte communications, he sent copies of both exhibit Nos. 18 and 19 to show that the order had been altered. He then explained that he obtained a copy of exhibit No. 18 on October 26 when he reviewed the file after talking with Henderson’s father. Later, however, he testified that he copied exhibit Nos. 18 and 19 when he received the Commission’s inquiry about the matter.

He also later testified that he sent the exhibits, not with his December 30 response, but with his February 1995 response to the Commission’s January 1995 inquiry about the altered minute orders. Regarding his submission of minute orders to the Commission, he then testified: “Pm sorry. I don’t recall now. ...

I remember sending two minute orders, but I don’t remember which they were and when I looked at them . . . .” Later, petitioner again testified that he sent the two minute orders in response to the Commission’s January 1995 inquiry, but he could not recall how he got a copy of the order in the form of exhibit No. 18. Before the Commission, however, petitioner appeared to state that he first received a copy of the minute order in the form of exhibit No. 18 from the Commission as part of its January 1995 inquiry.

This last statement was consistent with the Commission’s position that petitioner never submitted a copy of a minute order in the form of exhibit No. 18 and that he had only submitted a copy of exhibit No. 19. Petitioner’s continually shifting explanations regarding these exhibits are further evidence of his willful misconduct in attempting to deceive the Commission. (See Adams, supra, 10 Cal.4th at pp. 910-911 [judge’s inaccurate and incomplete responses to the Commission constituted willful misconduct].) 2.

Count One B: Ex Parte Contacts With Peter Vanderputten In connection with the dissolution of his marriage, Peter Vanderputten was criminally charged with violating court orders, violating a protective order, and allowing or causing a child to suffer. Under an agreement with the district attorney, Vanderputten pleaded guilty to the charges, and sentencing was continued, with dismissal to follow after a year if he committed no further violations and obeyed court orders. The case remained pending before petitioner until he dismissed the charges in accordance with the plea agreement.

During that time, Vanderputten often appeared before petitioner for compliance review. At some point, Vanderputten talked about committing suicide and other violent acts. In response, and to protect Vanderputten and his family, petitioner recommended that Vanderputten seek counseling. As an alternative, petitioner advised Vanderputten that he was welcome to attend a Saturday morning men’s fellowship group that petitioner led. Vanderputten attended petitioner’s fellowship group a few times.

The men at the group were “supporting him and trying to get him to leave his wife alone, and . . . obey all laws, to act like a reasonable person.” On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct by engaging in improper ex parte contacts with Vanderputten. (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud.

Ethics, canon 3B(7).) The evidence clearly shows that at petitioner’s fellowship meetings Vanderputten discussed the very problems that led to the criminal charges pending before petitioner and his difficulties in accepting the situation. By his own admission, petitioner viewed himself as Vanderputten’s probation officer. In one of his responses to the Commission, petitioner conceded that, because of these ex parte contacts, he “would have had to disqualify [him] self’ from hearing allegations that Vanderputten violated his plea bargain.

We agree with petitioner’s concession and conclude that he committed prejudicial misconduct with regard to Vanderputten. (See Code Civ. Proc., § 170.1, subd. (a)(6).) We reject petitioner’s claim that this conclusion violates his constitutional right to practice his religion. 'While presiding over a pending criminal case and after recommending that a defendant obtain counseling, petitioner invited that defendant to petitioner’s fellowship group specifically to discuss and address the problems underlying the criminal charges.

That, as part of addressing those problems, the group members would look to the Bible for guidance does not make our inquiry regarding petitioner’s conduct an issue of religious freedom. As a judge, petitioner may not participate in an ongoing support group where defendants with cases pending before him discuss their attempts to comply with the terms of their plea bargains. 3. Count One C: Ex Parte Contacts With Dennis Jonathan In January 1991, Dennis Jonathan was charged with driving with an illegal blood-alcohol concentration and having a prior drunk driving conviction.

On March 25, he appeared with counsel before petitioner, pleaded guilty to the charge, and admitted the prior conviction. Petitioner accepted the plea and then offered to postpone sentencing “for a couple months and see how [Jonathan was] doing on [his] programs,” i.e., so Jonathan could “prove to the court that [he] ha[d] control over [his] drinking.” After Jonathan accepted petitioner’s offer, petitioner stated: “I do have personal knowledge of Mr. Jonathan and his programs, by the way.” Jonathan’s counsel replied that she was aware of this fact. No one was at the hearing for the prosecution.

Petitioner’s acquaintance with Jonathan began when he offered to help petitioner get elected. Petitioner next saw Jonathan in late 1988, when he appeared before petitioner on a hit-and-run charge. According to petitioner, he disclosed to counsel during that proceeding that he knew Jonathan from the campaign, that he “felt uncomfortable in sentencing Mr. Jonathan, [and] that the only way [he] would hear the case . . . was that the sentence would be agreed between [counsel] . . . .” Petitioner was concerned “that Mr.

Jonathan might think he got a special favor . . . .” Petitioner next saw Jonathan at the church that petitioner and Jonathan’s parents attended. Later, in 1989, Jonathan appeared before petitioner on his first drunk driving charge. After taking Jonathan’s guilty plea, petitioner sentenced him to the “usual” sentence for first-time offenders. After his first drunk driving conviction, Jonathan began attending petitioner’s Saturday morning men’s fellowship group. Before his 1991 arrest, Jonathan attended group meetings approximately once a month for six to eight months.

At group meetings, Jonathan disclosed that he was an alcoholic and that he needed help. After his 1991 arrest, but before sentencing, Jonathan attended two or three more group meetings. At a meeting before his first court appearance, he informed petitioner that he had “ ‘made a terrible mistake, . . . slipped on [his] sobriety and . . . received a ticket for driving under the influence.’ ” According to Jonathan, petitioner “was sympathetic.” Petitioner testified that he decided to leave Jonathan’s sentence to the agreement of counsel because of these contacts.

Petitioner was concerned that, if he sentenced Jonathan, “the appearance might be that [petitioner] . . . was lenient, no matter what [he] did.” Petitioner “didn’t want anyone to say that [he] was lenient . . . because [Jonathan] got people to vote for [petitioner] and his parents went to the [church petitioner] attended.” According to petitioner, he advised the district attorney that he knew Jonathan, that he would preside in the case if counsel did not object, but that he would leave it to counsel to agree on the sentence because of his concern about claims of leniency.

The district attorney, however, did not recall that petitioner made any of these disclosures. Because Jonathan needed to get to work, he appeared for sentencing on July 30 before court was in session. Sentencing occurred in petitioner’s chambers. The district attorney was present, but defense counsel was not. Petitioner had contacted defense counsel about the matter, and she had replied that her attendance was unnecessary because she knew what the sentence would be. She and the district attorney had agreed to recommend a sentence of a fine and jail time.

According to petitioner, Jonathan waived his right to have counsel appear for sentencing; there is no record of the proceedings to verify petitioner’s claim. Notwithstanding his purported decision to leave Jonathan’s sentence to counsel, petitioner proposed that, in lieu of the fine and jail sentence, Jonathan be required to perform community service in the form of construction work on a proposed addition to the courthouse. Petitioner eventually imposed this sentence.

The district attorney characterized this sentence as “unusual,” noting that in 99 percent of the cases of second-time offenders, service of a minimum 10-day jail sentence is required. Over a year later, petitioner saw Jonathan in the court clerk’s office. With no attorneys present, he informed Jonathan that the addition to the courthouse had not been approved and that he would have to perform his community service in another way. Petitioner asked Jonathan how he wanted to fulfill his sentence. According to Jonathan, petitioner gave him a list of options from which to choose.

Petitioner then modified Jonathan’s sentence in accordance with Jonathan’s preference. On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct in handling the Jonathan matter. As in the Henderson matter, petitioner recognized that his ex parte contacts with Jonathan created a conflict, and his initial solution was simply to cede the sentencing decision to counsel.

He did not disclose his ex parte contacts to the district attorney, and there is no evidence that he disclosed even to defense counsel that he had discussed the offense with Jonathan at a fellowship meeting. Moreover, despite his ex parte contacts and his decision not to participate in sentencing, petitioner took control of sentencing and imposed an unusually lenient sentence that included no actual jail time. Petitioner himself admitted that suspension of the jail sentence and fine was not part of “the normal sentence” for a second drunk driving offense.

Over a year later, petitioner modified the sentence through additional ex parte contacts with Jonathan, without involvement of either defense counsel or the district attorney. The record thus contains clear and convincing evidence that petitioner committed prejudicial misconduct in his handling of the Jonathan matter. (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7); Code Civ.

Proc., § 170.1, subd. (a)(6).) We reject petitioner’s claim that Jonathan’s sentence was “within customary local guidelines for the rare, or exceptional case.” The record shows that service of jail time was not required only where a single parent could not care for her small children during incarceration or the defendant had a physical problem or was elderly. Petitioner has identified no circumstance that justified treating the Jonathan matter as an exceptional case. 4. Count One D: Ex Parte Contacts With Robert Reagan, Jr.

Robert Reagan, Jr., approached petitioner “at [a] restaurant and complained about a speeding violation and told [petitioner] he did not have the money to pay for it.” Petitioner “knew” Reagan “by his many appearance[s] in court.” Petitioner and Reagan also had attended the same school functions because their children had attended the same school for at least 10 years. Petitioner replied that Reagan “could do community service for the fine. Mr. Reagan agreed and [petitioner] gave him a couple of month[s] to complete and show proof.” Petitioner also told Reagan that he had to attend traffic school.

Petitioner then “went back to court,” “pulled the file,” and indicated that he had given Reagan “an extension” to perform his community service. A few months later, a warrant issued because Reagan had not paid his fine. In court, Reagan stated that “he did not understand what had happened] and asked for another chance to do the service and attend traffic school . . . .” In his response to the Commission charges, petitioner stated: “Because I had handled it, and I did not have a clerk do it, I felt that I should give him one more chance, and if he failed this time, it would be properly documented by a clerk.

Then he would be charged with failure to pay.” We agree with the Commission’s unanimous finding that petitioner committed prejudicial misconduct in handling the Reagan matter. (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7); Code Civ. Proc., § 170.1, subd. (a)(6).) Petitioner informally discussed Reagan’s situation at the restaurant and agreed to give him an extension of time in order to perform community service in lieu of a fine. Petitioner then altered the official court file to reflect his informal handling of the matter.

According to petitioner’s own response, his ex parte handling of this matter confused Reagan and required him to give Reagan still another chance after a warrant was issued when he failed either to pay or to perform community service. 5. Count One E: Ex Parte Contacts With Steven Pearson In July 1990, petitioner placed Steven Pearson on probation after he pleaded guilty to brandishing a firearm. Sometime after sentencing, Pearson began attending petitioner’s Saturday morning fellowship meetings.

According to petitioner, Pearson had “serious spousal abuse problems,” was a “very sick man,” and had a “very violent temper.” Pearson discussed, and petitioner counseled him about, these problems during the fellowship meetings. Pearson became “a real problem” for petitioner and his wife, and they had “to discourage him from seeking [them] out.” While Pearson was on probation, he and his wife were charged with violating zoning laws by keeping piles of junk in their yard.

Petitioner was personally aware of the circumstances underlying the charge; he had stopped by Pearson’s property, seen the junk in the yard, and advised Pearson to dispose of it. Petitioner believed that Pearson, and not his wife, was responsible for the violation, and petitioner told the district attorney of his belief. According to petitioner, he also told the district attorney he was disqualifying himself from hearing the case. The district attorney, however, did not recall petitioner’s saying anything about the Pearsons or whether he had a problem with them.

Consistent with his practice in similar cases, the district attorney asked that the matter be continued until, and dismissed when, the Pearsons cleaned up their property. At the district attorney’s request, petitioner continued the matter two or three times. Petitioner did not believe that the conflict created by his ex parte contacts and his knowledge of the zoning violation prevented him from ordering a continuance. However, petitioner also believed that the district attorney gave Pearson too much time to clean up the property and should have forced Pearson to act more quickly.

Petitioner remembered that Pearson’s earlier brandishing offense involved a neighbor who was angry about junk in Pearson’s yard. On this record, we agree with the Commission’s unanimous finding that petitioner committed prejudicial misconduct in continuing to preside over the zoning case despite his personal knowledge of the relevant circumstances and his ongoing personal relationship with Pearson through the fellowship meetings. Because of the conflict that these contacts created, petitioner exercised no substantive judgment in considering the district attorney’s continuance requests.

By his own admission, petitioner thought the district attorney was giving Pearson too much time to clean up his property, creating a potential for another confrontation with his neighbor. But for his decision not to make substantive rulings in this case, petitioner might not have acceded to all of the continuance requests. Rather than participating in the case under these circumstances, he should have recused himself. (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7); Code Civ.

Proc., § 170.1, subd. (a)(6).) In failing to do so, he committed prejudicial misconduct. 6. Count One F: Ex Parte Contacts With Witnesses On July 27, 1993, Eddie Riegle appeared without counsel before petitioner for arraignment on a misdemeanor charge of assault with a deadly weapon (a BB rifle). The district attorney requested a brief continuance for plea negotiations, indicating his belief that the shooting was accidental. He wanted to discuss the incident with the victim. He also wanted to investigate how various sentence requirements would affect Riegle’s Army service, which was to begin the next month.

On August 3, Riegle again appeared before petitioner without counsel. Under a plea bargain, the district attorney proposed that Riegle plead guilty to simple battery and receive a sentence of eight days of community service and a fine. The district attorney explained that he had discussed the sentence with the victim, who had no objection. Petitioner then suggested that Riegle serve eight days in jail in lieu of the community service. Gary Whitley, a friend of Riegle’s who was an inactive attorney and who was appearing as a character witness, responded that the Army would not accept Riegle under that sentence.

Petitioner replied that the charge was too serious for a sentence of only eight days of community service. Petitioner then granted Riegle’s request for time to consider the matter, and Riegle left the courtroom. When Riegle returned and his case was called again, Kimberly Fletcher, the public defender, accompanied him and attempted to negotiate with petitioner for the sentence the district attorney had proposed. During this period, and while on the bench, petitioner telephoned both the victim and the park ranger who arrested Riegle. Because both were unavailable, petitioner left messages for them.

While court was still in session, the ranger returned petitioner’s call. Petitioner took the call at the bench, but did not put it on the speaker phone, so Riegle and counsel could hear only petitioner’s side of the conversation. According to petitioner, he intended to put the call on the speaker phone, but decided not to because the ranger became irate upon learning of the proposed plea bargain. Petitioner repeated in open court parts of his conversation with the ranger as it occurred and related more of it after the call ended.

The evidence consistently showed that, during the call, petitioner referred to Riegle as a “punk” and made comments like, “That’s what I thought. Bad attitude.” After the call, petitioner again stated: “Just what I thought. This ranger has affirmed that he had a bad attitude. He’s a punk kid.” Petitioner also expressed the opinion that Riegle should be tried and that he would be convicted. Petitioner also stated that he would not accept the negotiated plea bargain.

On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct by making ex parte contacts with the ranger during the Riegle matter. (See former Cal. Code Jud. Conduct, canon 3B(7), as adopted eff. Oct. 5, 1992, now Cal. Code Jud. Ethics, canon 3B(7); Code Civ. Proc., § 170.1, subd. (a)(6).) Petitioner’s asserted concern about embarrassing the ranger does not excuse his decision to exclude counsel and the defendant from a conversation in which he obtained information that influenced his handling of the case.

Contrary to petitioner’s assertion, the evidence in the record does not show the parties stipulated that petitioner could make these calls or exclude them from his conversation with the ranger. According to Whitley, petitioner made the calls “[w]ithout telling anyone what he was going to do.” Kimberly Fletcher similarly testified that no one suggested petitioner make these calls; he acted “spontaneously,” and “on [his] own.” Consistent with this evidence, the hearing transcript does not reflect that petitioner either requested or received stipulations to his ex parte contact with the ranger. 7.

Count One G: Ex Parte Contacts Regarding Bench Warrants The Commission alleged that, on numerous occasions, petitioner “telephoned defendants, including defendants [he] knew, for whom bench warrants had been issued to advise them to come to court.” In his answer and testimony, petitioner admitted that he made these calls approximately 25 to 30 times. Petitioner explained that he informed these individuals the court was processing a warrant on them and that the warrant would not issue if they appeared in court.

Before placing the calls, petitioner did not inform the district attorney or determine whether the individuals had counsel. Nor did he ask about this latter fact during the calls. In petitioner’s view, this practice saved time for the understaffed clerk’s office, by eliminating the need to process warrants for those who responded to petitioner’s calls. Petitioner discontinued this practice when another judge informed him that it might violate the separation of powers doctrine and create conflicts.

We agree with the Commission’s unanimous finding that petitioner committed prejudicial misconduct in making these ex parte contacts. Petitioner should not have conducted court business through informal, ex parte contacts over the telephone. (See former Cal. Code Jud. Conduct, canon 3A(4), as adopted eff. Jan. 1, 1975, see now Cal. Code Jud. Ethics, canon 3B(7).) In his petition, petitioner insists that his primary motivation was to clear up improper arrest warrants for persons who were not lawfully subject to arrest.

The evidence does not support this contention, but shows instead that petitioner simply believed that his informal handling of these warrants was the most efficient way to conduct the court’s business. In any event, petitioner’s speculation “that maybe some of [the arrest warrants] were improper” does not excuse his decision to address this problem through ex parte telephone contacts. 8. Count Eight: Prejudgment of Evidence in the Wickham Matter On November 1, 1994, petitioner presided over a preliminary hearing on a felony drunk driving charge against Aaron Wickham.

At the outset of the hearing, defense counsel explained that Jon Fry was the driver of the car and could “completely exculpate” Wickham, and that a continuance was necessary to subpoena Fry. After petitioner heard testimony from the arresting officers and Wickham, defense counsel again requested a continuance because of Fry’s absence.

Petitioner proposed a week’s continuance, and defense counsel objected, arguing that Wickham should not have to remain in custody that long “when he’s got a guy to come in to say that he wasn’t driving.” Petitioner then explained that credibility determinations would be made by the jury during trial, not by the court during the preliminary hearing.

Defense counsel then asked whether petitioner was saying “that [he] wouldn’t believe [Fry].” Petitioner replied: “This court has dealt with Jon [Fry] many, many times, and his credibility is not too high.” Counsel objected that petitioner was “prejudging [Fry’s] testimony.” Petitioner replied: “No. I’m just warning counsel that he has come into this Court and he’s been before this court many times. And he’s broken many promises to this court and has many failures to appear in court.

And I hope you don’t expect the court to regard his testimony like any other citizen in the community.” Petitioner suggested that he might dismiss the case if Wickham got the prosecution’s sole eyewitness to admit she had lied to the police, and then explained: “But when you want me to waive [szc] who believes who and who witnesses things, that’s the jury’s job; that’s not the court’s job.” Petitioner then stated that he did not “believe [the prosecution witness] would have much more credibility in this court than Jon [Fry].

They’re both recovering alcoholics that are working hard to try to stay out of trouble.” Defense counsel then inteqected, “So you can’t believe one or the other really.” Petitioner replied: “Right. It’s a tie.” After defense counsel started to express hope that petitioner “might be convinced by—,” petitioner interrupted and said, “I’m willing to listen.” Petitioner also expressed skepticism about Fry’s testimony, noting that he had failed to say anything when he was in court during Wickham’s arraignment.

Petitioner explained: “What I’m trying to say, Counsel, is why didn’t [Fry] volunteer that information to the court if he knew his friend was being charged with him driving the car?” According to petitioner, he believed that defense counsel would withdraw the continuance request after hearing petitioner’s remarks about Fry.

In his testimony before the special masters, petitioner explained: “I was trying to convince [defense counsel] that we should end th[e] preliminary hearing; that the Court ha[d] heard enough to hold the defendant to answer . . . .” Knowing that defense counsel was unfamiliar with Fry’s background, petitioner made his remarks “with anticipation that [defense counsel] would see the futility of prolonging the hearing and wasting court time.” Petitioner also stated that, based in part on his view of Fry’s “credibility,” petitioner “wouldn’t have changed [his] mind” even if Fry had testified at the preliminary hearing that he had been the driver.

On this record, we agree with the Commission’s unanimous conclusion that petitioner committed prejudicial misconduct during the Wick-ham case by expressing prejudgment of Fry’s credibility. The record does not support petitioner’s contention, raised for the first time in this court, that he was simply fulfilling his duty as a judge to disclose his personal knowledge and opinion of a defense witness.

Petitioner’s contention is inconsistent with his failure to disclose his opinion of Fry at the start of the preliminary hearing despite his knowledge that Fry was Wickham’s primary witness; petitioner waited until after hearing the arresting officers’ testimony before informing defense counsel. More importantly, by his own admission, petitioner made his remarks to persuade defense counsel not to call Fry and to agree to end the preliminary hearing.

Indeed, contrary to his current position that he made his remarks simply to fulfill some ethical or judicial duty, petitioner acknowledged in his answer to the Commission’s allegations “that there is no excuses [sic] for putting on the record, the past performances and opinions of the witnesses.” We agree with petitioner’s earlier assessment of his conduct.

His attempt to influence counsel’s handling of the case by disclosing his bias against Wickham’s primary witness and his prejudgment of that witness’s credibility constituted prejudicial misconduct. (See Dodds, supra, 12 Cal.4th at p. 176 [judge’s “prejudgment in the handling of cases . . . constituted prejudicial conduct”]; Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739, 744-745, 748 [190 Cal.Rptr. 910, 661 P.2d 1064]; McCartney, supra, 12 Cal.3d at p. 533 [in examining witness, judge “may not. . . become an advocate for either party or cast aspersions or ridicule upon a witness”].) 9.

Counts Eleven A, Eleven C: Inappropriate Reactions to Disqualification Attempts (

a) Count Eleven A: Riegle Matter As we have previously set forth, on August 3, 1993, defendant Eddie Riegle appeared before petitioner without counsel, accompanied only by Gary Whitley, an inactive attorney who was present as a character witness. After refusing to accept the negotiated plea bargain and insisting that Riegle serve time in jail, petitioner granted Riegle’s request for time to consider the matter, and Riegle left the courtroom. Kimberly Fletcher, the public defender, was present in court at the time and observed these proceedings.

As Riegle and Whitley left the courtroom, they asked Fletcher to accompany them. After determining that Riegle qualified for representation by the public defender, Fletcher returned to the courtroom with Riegle, informed petitioner that Riegle qualified for representation and had asked her to represent him, and asked to be heard on the matter.

According to Fletcher, she “started to negotiate on” Riegle’s behalf, and petitioner “talked to [her] as though [she] was the attorney of record.” At this point, Fletcher believed she was representing Riegle, because petitioner’s previous practice in similar circumstances had been to accept her representation without formally stating that he was appointing the public defender. Fletcher repeatedly asked petitioner to “go on the record,” but petitioner refused.

As we have also previously explained, during the court proceedings, petitioner discussed the matter by telephone with the park ranger who had arrested Riegle. Given petitioner’s comments about Riegle after the call, Fletcher concluded that petitioner could not be fair and impartial, and she indicated that she would attempt to disqualify him. Although Fletcher had been discussing the case with petitioner for at least 10 minutes at this point, petitioner replied that Fletcher was interfering in a case in which she had not been appointed.

Fletcher reminded petitioner that in the outer hall she had qualified Riegle for representation and that petitioner had been dealing with her as Riegle’s attorney. Petitioner then suggested that Riegle did not qualify for representation, and he asked for a qualification form. He had not previously made a similar request of Fletcher during her almost four years as public defender, and he had not mentioned a concern about Riegle’s eligibility for public representation before Fletcher’s remark about disqualification. Fletcher cited these facts as further evidence of petitioner’s bias in the case.

Petitioner replied: “Fine. You’re emotionally involved in this case. You’re way out of line, and Pm going to remove you and appoint conflict counsel.” Petitioner did not, at this point, refer to Riegle’s qualification for public representation. When petitioner finally called the case, he indicated that Riegle was requesting a public defender and that he was appointing Linda Thompson instead of Fletcher.

Fletcher objected, explaining that no conflict existed and that petitioner had refused to call the case, had asked for a public defender application, and had stated unsupported conclusions about Riegle’s eligibility for representation. Petitioner then stated: “The record should also reflect that Ms.

Fletcher has interceded in this case without being requested or without appointment. ft[] And I think she’s become personally and emotionally involved in this case, so I’m disqualifying her to represent this defendant.” Fletcher again objected, reiterating that petitioner had no grounds for removing her and stating that “the Court’s behavior has been inappropriate in this matter.” Petitioner then stated: “Ms. Fletcher, you’re getting close to contempt.

And I would suggest that you sit down and be quiet.” According to Fletcher, petitioner “was angry when this was going on, once [she indicated her intent to disqualify] him.” On this record, we agree with the Commission’s unanimous finding that petitioner committed prejudicial misconduct in refusing to appoint Kimberly Fletcher while immediately appointing another public defender to represent Riegle. Petitioner raised a question regarding Fletcher’s representation of Riegle only after she indicated her intent to disqualify him. His request for a qualification form for Riegle was contrary to his prior practice.

He appointed a substitute public defender without inquiring or commenting further about Riegle’s eligibility. These facts indicate that petitioner’s purported concern about Fletcher’s alleged failure to qualify Riegle for representation was merely a pretext for his decision to exclude Fletcher from the case because of her expressed intent to disqualify him.

In so retaliating against Fletcher, petitioner committed prejudicial misconduct. (See In re Rasmussen (1987) 43 Cal.3d 536, 538 [236 Cal.Rptr. 152, 734 P.2d 988] [judge committed misconduct in “displaying a lack of impartiality to, and petty harassment of attorneys who filed affidavits of prejudice against him,” and in “discouraging the exercise of peremptory disqualification rights by inappropriate means”].) (

b) Count Eleven C: Tippets Matter On September 14, 1993, Deborah Tippets appeared before petitioner on a charge of shoplifting four packages of developed film. Her attorney, Kimberly Fletcher, suggested a disposition of informal diversion. After some discussion of the facts of the case and Tippets’s explanation, petitioner suggested “a one-year dispo and have her do some things.” Fletcher indicated that the proposal was “acceptable.” The district attorney then suggested payment of $150 in court costs as well. Tippets indicated she could not afford that amount.

Petitioner responded: “Well, one minute you tell us you’re wealthy and can pay for stuff, and the next minute, you say . . . you can’t pay $150.00 fine.” After Tippets explained that she had just moved, petitioner abruptly declared: “All right. Let’s set it for trial, then.” Tippets and Fletcher then attempted to explain Tippets’s financial situation. Petitioner seemed to ignore these comments, responding by simply asking: “When do you want to try it?” After petitioner immediately repeated this question, Fletcher stated: “I’m going to have to [disqualify] you, your Honor.

I think there’s some animosity here.” Fletcher later explained to the Commission that she based her action on her perception that petitioner “had gotten angered by [Tippets’s] comments . . . that she couldn’t even afford $150, and lost patience. [Fletcher] was concerned it would be difficult at this time for [petitioner] to be impartial, given the long conversation with [Tippets] at that point.” Fletcher was also acting on “what [she] perceived [were petitioner’s] feelings about single women with kids out of wedlock [and] interracial [children].” Petitioner replied: “There’s no animosity.

I’m trying to settle the case.” Fletcher started to reply, when petitioner interjected: “[I]f you don’t want me to get involved in settling cases, then I won’t. But you get me involved. And then as soon as I get involved in it, then you say, ‘Oh, we’re going to have to [disqualify] you’ because I’m trying to encourage settlement.” According to the court reporter’s notation in the hearing transcript, petitioner was yelling at this point.

The reporter testified before the special masters that her practice was to indicate in the transcript the demeanor of the person speaking—here that petitioner was yelling—“[w]hen it was so out of the ordinary.” In his testimony, petitioner confirmed that he “probably” was yelling when he made this statement. Petitioner also testified that, in his view, he had been trying to help Fletcher persuade Tippets to take the plea offer, and that he was “shocked” that Fletcher “suddenly turned against” him by mentioning disqualification.

After petitioner and Fletcher discussed Tippets’s comments regarding her ability to pay for the allegedly stolen film and her inability to pay the suggested fine, petitioner asked whether Tippets had made a statement to the store security guard. The district attorney replied she had told the security guard she put the film “under [a] blanket because [her] baby’s bottle was leaking, and she didn’t want the liquid on the photographs.” As Tippets attempted to speak, petitioner interrupted and exclaimed: “Inconsistent.

Inconsistent.” Contrary to petitioner’s exclamation, Tippets’s statement to the security guard was consistent with the explanation she gave petitioner earlier in the hearing. Fletcher apparently tried to explain this fact, and to suggest that petitioner’s comment supported her concern that petitioner felt animosity toward Tippets. Nevertheless, petitioner continued: “I’ve been in this job for 35 years. I can tell when people have a little bit of shaky background as far as their position.

And if . . . they’re changing statements and changing reasons why they did something, then it gives you an indication that maybe there was an intent there.” According to petitioner, he was expressing his view that neither he nor a jury would believe Tippets’s explanation and that she would be convicted.

As Fletcher attempted to respond, petitioner continued: “But if you don’t want me to get involved in trial settlements anymore, then I won’t, [ft] But I try to settle cases to save taxpayers’ money and to save her a possibility of going to jail and being convicted of a serious crime, [ft] But if you don’t want me to do that, I won’t do that anymore, [ft] I won’t give you an indicated sentence, [ft] And you can just do your thing.” The transcript then shows the following exchange as petitioner and Fletcher argued with each other: “Ms.

Fletcher: Well, I— “The Court: (Yelling) but I’m getting sick and tired of you . . . threatening me with [disqualification]. [ft] And I’m not going to have it anymore. “Ms. Fletcher: Then, Your Honor, a simple solution would be not to make these prejudicial statements and— “The Court: (Yelling) then don’t get me involved in trial settlements. “Ms. Fletcher: —misstating her statements. “The Court: (Yelling even louder) but if you ever threaten a judge in Fresno on a [disqualification], you’ll be held in contempt. I guarantee you. “Ms.

Fletcher: And I can guarantee you that threatening counsel because you have been [disqualified] will get you in trouble with Judicial Council. And that is not contempt. “The Court: I haven’t been—I haven’t been [disqualified]. “Ms. Fletcher: Well, all we have to do is read this record back, [ft] I just moved to do it. “The Court: Fine, [f] Oh, you just moved to disqualify me? “Ms. Fletcher: Yes. “The Court: Oh, okay. “Ms. Fletcher: Let’s set it for trial. And I’m moving— “The Court: I can’t set it for trial.” Petitioner then set the case for trial before a different judge.

Petitioner denied that he was yelling during this exchange. However, the court reporter testified that he was speaking in a “[ljoud voice,” was “rising up” or “raising forward,” and was “very angry.” In his answer to the Commission charges, petitioner explained: “[I] admití], in retrospect, that [I] was a little too pushy, probably because of [my] lack of confidence in Ms. Fletcher, in convicting [sz'c] her client that the offer was in her best interest.

At the time there was not sufficient funds in the county there was a hiring freeze [szc], the court was short two clerks out of five authorized, and the need to save money was paramount at the time. With the trial date that week, it was imperative that we reach a settlement on the day in question.” On this record, we agree with the Commission’s conclusion (by a vote of nine to one) that petitioner committed prejudicial misconduct in his handling of the Tippets case.

At the time of the Tippets matter, former California Code of Judicial Conduct, canon 3B(4), effective October 5, 1992, provided that “[a] judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity . . . .” (See now Cal. Code Jud. Ethics, canon 3B(4), as adopted eff.

Apr. 15, 1996 [currently imposing same duty].) Petitioner’s conduct during the Tippets hearing fell far short of this standard, bringing the judicial office into disrepute. (See Kloepfer, supra, 49 Cal.3d at pp. 857-858; In re Rasmussen, supra, 43 Cal.3d at p. 538; McCartney, supra, 12 Cal.3d at pp. 531-532.) In reaching this conclusion, we are not unmindful of Attorney Kimberly Fletcher’s conduct.

We also recognize that “[a] court has authority to control courtroom conduct of an attorney that is in flagrant disregard of elementary standards of proper conduct and to temper [counsel’s] speech in order ‘to insure that courts of law accomplish that for which they were created— dispensing justice in a reasonable, efficient and fair manner.’ [Citation.]” (Hawk v.

Superior Court (1974) 42 Cal.App.3d 108, 123 [116 Cal.Rptr. 713].) Indeed, in 1993, during the Tippets matter, former California Code of Judicial Conduct, canon 3B(4), effective October 5, 1992, also directed a judge to “require” lawyers to be “patient, dignified, and courteous” in their courtroom behavior. (See now Cal. Code Jud. Ethics, canon 3B(4), as adopted eff.

Apr. 15, 1996 [currently imposing same duty].) In performing this duty, “ ‘trial judges confronted with disruptive, contumacious, stubbornly defiant [attorneys] must be given sufficient discretion to meet the circumstances of each case.’ ” (In re Buckley (1973) 10 Cal.3d 237, 253-254, fn. 21 [110 Cal.Rptr. 121, 514 P.2d 1201, 68 A.L.R.2d 248].) However, the record here shows that petitioner responded angrily the very first time Fletcher, understandably concerned that petitioner had become impatient with Tippets, mentioned disqualification.

He immediately began yelling at Fletcher about her use of the disqualification procedure.

After expressing his view that Tippets’s explanation was not credible, petitioner returned to the disqualification issue, again yelling at Fletcher that he was “sick and tired” of her disqualification threats and was “not going to have it anymore.” The situation then escalated, with Fletcher asserting that petitioner could avoid being disqualified by refraining from making prejudicial and inaccurate statements, petitioner yelling in reply that Fletcher should not get him involved in settlements and that another court would treat her disqualification threat as contempt, and Fletcher answering that threatening counsel in response to a disqualification motion would “get [petitioner] in trouble with Judicial Council.” Although we do not condone Fletcher’s conduct, viewing the incident in its entirety, we conclude that petitioner’s behavior in response to the disqualification attempt constituted prejudicial misconduct. (See Dodds, supra, 12 Cal.4th at p. 176 [judge committed prejudicial misconduct by “interrupting and yelling loudly and angrily at counsel and a litigant”]; Wenger, supra, 29

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