CJEO Formal Opinion No. 2023-021 — Disqualification Obligations of a Trial Judge Based on Prior Judicial Involvement in Criminal Trial Court Proceedings

1
CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinion.ca.gov
CJEO FORMAL OPINION 2023-021
[Posted January 20, 2023]
DISQUALIFICATION OBLIGATIONS OF A TRIAL JUDGE BASED ON
PRIOR JUDICIAL INVOLVEMENT IN CRIMINAL TRIAL COURT
PROCEEDINGS
I. Question
The Committee on Judicial Ethics Opinions (CJEO) has been asked the following
questions regarding the statutory disqualification obligations of a trial judge 1 in criminal
trial court proceedings:
1 This advisory opinion relates to the statutory disqualification obligations of a trial
judge in trial court proceedings, not of a trial judge in proceedings in the appellate
division of the superior court or of an appellate justice. Notably, appellate justices must
make individual disqualification decisions pursuant to canons in the Code of Judicial
Ethics that apply specifically to them. (Canon 3E(4), (5), (6); Kaufman v. Court of Appeal
(1982) 31 Cal.3d 933, 935, 938-940 [statutory grounds for trial court disqualification are
not applicable to appellate justices].)

2
(1) Is a trial judge who issues a bench warrant based on a failure to appear in a
felony matter disqualified from hearing: (a) the underlying felony matter in
which the judge issued the warrant; or (b) a separate subsequent matter in the
trial court in which the defendant is charged with failure to appear pursuant to
California Penal Code section 1320; and
(2) Is a trial judge who accepts a plea agreement in a criminal matter disqualified
from hearing a subsequent case in which the crime that was the subject of the
plea agreement is alleged as a prior strike and the defendant intends to
challenge whether the underlying crime qualifies as a strike?
II. Summary of Conclusions
Judges are ethically obligated to be neutral decision makers who must regularly
consider whether their adjudicatory actions give rise to a basis for disqualification. For
three distinct reasons, a trial judge who authorizes the issuance of a bench warrant for a
failure to appear or who presides over a change of plea hearing is not required to
disqualify in a subsequent proceeding in which a defendant is charged with a failure to
appear violation (Penal Code § 1320) or challenges whether a felony conviction arising
from the change of plea hearing qualifies as a prior strike (Penal Code § 1025). First,
under Code of Civil Procedure, section 170.2, the fact that a judge has expressed a view
on a legal or factual issue in a proceeding does not constitute grounds for disqualification
unless the judge falls within certain exceptions that are not relevant here. Second, the
grounds for disqualification contained in Code of Civil Procedure, section 170.1, would
not support a decision to disqualify based solely on the fact that the judge issued a bench
warrant or accepted a plea agreement. Third, other practical considerations weigh against
disqualification under these facts. 2
2 The disqualification analysis in this opinion is specific to the questions that the
committee was asked to address.

3
III. Authorities
A. Applicable Canons
Canon 2A: “A judge shall respect and comply with the law and shall act at all
times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary. A judge shall not make statements, whether public or nonpublic, that commit
the judge with respect to cases, controversies, or issues that are likely to come before the
courts or that are inconsistent with the impartial performance of the adjudicative duties of
judicial office.”
Canon 3B(5): “A judge shall perform judicial duties without bias or prejudice.”
Canon 3B(8): “A judge shall dispose of all judicial matters fairly, promptly, and
efficiently. A judge shall manage the courtroom in a manner that provides all litigants the
opportunity to have their matters fairly adjudicated in accordance with the law.”
Canon 3E(3)(a): “A judge is disqualified if the judge, while a judge or candidate
for judicial office, made a statement, other than in a court proceeding, judicial decision,
or opinion, that a person aware of the facts might reasonably believe commits the judge
to reach a particular result or rule in a particular way in a proceeding.”
B. Constitutional Provisions, Statutes, and Other Authorities
Code of Civil Procedure section 170.1, subdivisions (a)(1)(A), (B), and (a)(6)(A)
Code of Civil Procedure section 170.2, subdivision (b)
Penal Code section 1025
Penal Code section 1320
Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665
Eith v. Ketelhut (2018) 31 Cal.App.5th 1
Inquiry Concerning Wasilenko (2005) 49 Cal.4th CJP Supp. 26
Jolie v. Superior Court (2021) 66 Cal.App.5th 1025
Kaufman v. Court of Appeal (1982) 31 Cal.3d 933
Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826
People v. Pierce (1967) 66 Cal.2d 53, 61
People v. Smith (1975) 53 Cal.App.3d 655
People v. Williams (1997) 16 Ca1.4th 635

4
Ross v. Superior Court (2022) 77 Cal.App.5th 667, 680
Say & Say, Inc. v. Ebershoff (1993) 20 Cal.App.4th 1759
United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97
Valderas v. Superior Court (2021) 72 Cal.App.5th 172
Wechsler v. Superior Court (2014) 224 Cal.App.4th 384
Commission on Judicial Performance, Decision and Order Imposing Public
Admonishment on Judge Robert M. Letteau (2004)
CJEO Formal Opinion 2022-019 (2022), Disqualification and Disclosure
Obligations When Coaching Youth Sports, California Supreme Court Committee
on Judicial Ethics Opinions
CJEO Formal Opinion 2015-007 (2015), Disqualification for Prior Appearance as
a Deputy District Attorney in a Nonsubstantive Matter, California Supreme Court
Committee on Judicial Ethics Opinions
CJEO Expedited Opinion 2022-046, Disqualification When a Judge’s Spouse may
be a Material Witness, California Supreme Court Committee on Judicial Ethics
Opinions
CJEO Oral Advice Summary 2016-017 (2016), Disqualification for Prior
Appearance as a Deputy District Attorney in Another Proceeding, California
Supreme Court Committee on Judicial Ethics Opinions
Rothman et al., California Judicial Conduct Handbook (4th ed. 2017), sections
1:13, 7:16, 7:43, 7:58, 7:65
IV. Discussion
A. Introduction
There are at least three independent reasons that a trial judge who issues a bench
warrant for a failure to appear or approves a plea agreement is not disqualified from
subsequent hearings involving those matters. First, absent exceptions not relevant here,
the fact that a judge has expressed a view on a legal or factual issue in a proceeding is not
grounds for disqualification (Code Civ. Proc. § 170.2(b).) 3 Second, section 170.1,
3 Further undesignated references are to this code.

5
subdivision (a), does not require disqualification based on the fact that a judge previously
took actions that are related to subsequent matters assigned to the judge for adjudication.
Third, other practical reasons weigh against disqualification and support the rationale
upon which the applicable statutes are based.
Underlying each of these considerations is a trial judge’s fundamental role as a
neutral decision maker and not as an advocate. 4 The Code of Judicial Ethics requires
judges to impartially resolve all matters that come before the court. Canons 1 and 2
require judges to uphold the integrity and independence of an impartial judiciary, canon
3B(5) imposes a duty on judges to perform judicial duties without bias or prejudice, and
canon 3B(8) obligates judges to promptly and fairly dispose of all judicial matters and to
manage the courtroom so that all litigants have the opportunity to have their matters
heard in accordance with the law.
1. No grounds for disqualification under section 170.2
Section 170.2 defines specific circumstances that do not constitute grounds for
disqualification. As relevant here, the fact that a judge “has in any capacity expressed a
view on the legal or factual issue presented in the proceeding” is not a basis for
disqualification unless the judge served as a lawyer in the prior proceeding or the judge
has been assigned to serve in an appellate capacity considering the validity of the
underlying proceeding. (§ 170.2, subd. (b).) The fundamental duty to impartially decide
every case requires a judge to issue orders that necessarily express views on legal or
factual issues presented in various proceedings. Unless a statutory exception applies, the
4 The committee has examined the disqualification obligations of a judge who
previously served as a lawyer in the matter before the judge. (CJEO Formal Opn. 2015-
007 (2015), Disqualification for Prior Appearance as a Deputy District Attorney in a
Nonsubstantive Matter, Cal. Supreme Ct. Com. Jud. Ethics Opns.; CJEO Oral Advice
Summary 2016-017 (2016), Disqualification for Prior Appearance as a Deputy District
Attorney in Another Proceeding, Cal. Supreme Ct. Com. Jud. Ethics Opns.). These
opinions rest on the advocational function of a prosecutor and, ultimately, on whether a
person aware of the facts would reasonably doubt the judge’s ability to remain impartial.
(Code Civ. Proc. § 170.1, subd. (a)(6)(A)(iii).)

6
issuance of orders, including in connection with a bench warrant or a plea agreement,
does not constitute grounds for disqualification even if an order was erroneous. 5
(Rothman, et al., Cal. Judicial Conduct Handbook (4th ed. 2017), § 7:16, pp. 410-411;
§ 7:58 at pp. 479-480 (Rothman) [a judge’s expression of an opinion on a matter before
the court does not raise disqualification issues under section 170.2 even if the judge’s
opinion was erroneous]; Say & Say, Inc. v. Ebershoff (1993) 20 Cal.App.4th 1759, 1764,
fn. 8 [merely making rulings on the legal and factual issues is not a basis for
disqualification].) Thus, a trial judge who issues a bench warrant based on a failure to
appear or approves a plea agreement within the parameters of section 170.2, subdivision
(b) is not disqualified.
2. Statutory disqualification
California law provides mandatory and discretionary grounds for disqualification
and trial judges must make a disqualification decision in each matter before them. 6
(CJEO Formal Opn. 2022-019 (2022), Disqualification and Disclosure Obligations When
Coaching Youth Sports, Cal. Supreme Ct. Com. Jud. Ethics Opns., pp. 6-7.) If a judge
5 If, however, a trial judge made extrajudicial statements that would cause a person
aware of the facts to reasonably believe that the judge was committed to reaching a
particular result or ruling in a particular way in a proceeding, disqualification would be
required. (Canon 3E(3)(a).)
6 The terms mandatory and discretionary disqualification are used to distinguish
between (a) grounds that require disqualification when a judicial officer identifies
mandatory criteria set by the statute or code that has been met in any proceeding
(mandatory grounds), and (b) grounds that require disqualification when a judicial officer
exercises discretion after evaluating whether objective or subjective disqualifying
circumstances have been met in any proceeding (discretionary grounds). (CJEO
Expedited Opn. 2022-046 (2022), Disqualification When a Judge’s Spouse May be a
Material Witness, Cal. Supreme Ct. Com. Jud. Ethics Opns., p. 3, fn. 3; Eith v. Ketelhut
(2018) 31 Cal.App.5th 1, 13-14, citing CJEO Formal Opn. 2013-003 (2013),
Disqualification Based on Judicial Campaign Contributions from a Lawyer in the
Proceeding, Cal. Supreme Ct. Com. Jud. Ethics Opns. [regarding disqualification and
adopting the terms “mandatory disqualification” and “discretionary disqualification”]).

7
determines that a basis for disqualification has been met, the judge must disqualify.
(§ 170.1 [trial court disqualification is required if any specified grounds are met].)
Section 170.1(a) identifies eight mandatory grounds for disqualification 7 and one
ground requiring the exercise of discretion (§ 170.1(a)(6)(A)(i-iii)). As relevant here,
subdivision (a)(1)(A) mandates disqualification where the “the judge has personal
knowledge of disputed evidentiary facts concerning the proceeding” and is “likely to be a
material witness in the proceeding” (§ 170.1(a)(1)(B)).
a. Issuance of a bench warrant
When authorizing the issuance of a bench warrant based on a failure to appear, the
judge—acting in an official capacity—determines whether probable cause exists to
justify the issuance of the warrant. (Valderas v. Superior Court (2021) 72 Cal. App.5th
172, 182 [issuing a bench warrant for failure to appear is not a decision on the merits and
does not require a judge to receive evidence to satisfy all elements of willful failure to
appear].) Typically, that determination occurs in two scenarios: (1) decisions based on
sworn declarations; and (2) decisions based on conduct that the judge and others
observed at a hearing. Where the facts underlying the judge’s legal conclusion that
probable cause exists are presented in sworn declarations stating facts known to others,
but not the judge, section 170.1(a)(1)(A) is not implicated. Similarly, if the warrant is
7 The specific grounds for mandatory disqualification of a trial judge are contained
in the Code of Civil Procedure. (§ 170.1, subd. (a)(1) [judicial officer has personal
knowledge of disputed facts in the case]; id. at subd. (a)(2) [judicial officer previously
served as a lawyer, or, in certain situations, was affiliated with lawyers in the case]; id. at
subd. (a)(3) [judicial officer has a financial interest in the outcome of the case]; id. at
subd. (a)(4) & (5) [judicial officer is closely related to a party or lawyer in the case]; id. at
subd. (a)(7) [judge is unable to perceive evidence or conduct a proceeding based on a
physical impairment]; id. at subd. (a)(8) [judge has prospective employment in private
dispute resolution]; id. at subd. (a)(9) [judge received campaign contribution in excess of
$1,500 from a party or lawyer in the proceedings within certain time limits].) The statute
goes on to provide for waiver of disqualification by the parties unless excepted. As
relevant here, CCP 170.3 subd. (b)(2)(B) specifically prohibits waiver if the judge has
been a material witness concerning the matter.

8
based on conduct the judge observed at a hearing over which the judge presided, and thus
within the judge’s personal knowledge, disqualification is not required unless the judge is
a “material witness” in a subsequent proceeding relating to the failure to appear.
(§ 170.2(a)(1)(B).)
Our Supreme Court previously defined “material witness” in People v Williams
(1997) 16 Cal.4th 635, 653 as one “who can give testimony . . . no one else, or at least
very few, can give” (quoting Black’s Law Dict. (6th ed. 1990) p. 977 col. 2) or if the
testimony “has some likelihood of affecting the outcome of the case” (People v. Pierce
(1967) 66 Cal.2d 53, 61). Similarly, in analogous circumstances arising from efforts to
compel the deposition of a top governmental executive or constitutional officer, the party
requesting the deposition must show “the information to be gained from the deposition is
not available through any other source.” (Ross v. Superior Court (2022) 77 Cal.App.5th
667, 680 [the plaintiff could depose the district attorney on the narrow issue for which he
had personal factual information pertaining to a material issue that could not be obtained
from another source].) Because other individuals, such as attorneys or court staff who
were present at the hearing, can provide the same testimony as the judge, mandatory
disqualification is not required.
However, even if mandatory disqualification is not required, the judge must
determine whether discretionary disqualification is required for any of the following
reasons: (i) the judge believes that disqualification is required in the interests of justice;
(ii) the judge substantially doubts his or her capacity to be impartial; or (iii) a person
aware of the facts would reasonably doubt the judge’s ability to be impartial. (§ 170.1,
subd. (a)(6)(A).) The first two grounds require a trial judge to make subjective
determinations, but the final ground is an objective standard that requires an analysis of
whether “a fully informed, reasonable member of the public would fairly entertain doubts
that the judge is impartial.” (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384,
391; accord, Jolie v. Superior Court (2021) 66 Cal.App.5th 1025, 1040-1041; United
Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104 [under the

9
objective standard, a judge should consider how participation in each case would appear
to the “average person on the street”].)
In the committee’s view, absent a showing the trial judge engaged in conduct
relating to the issuance of a bench warrant that would lead a person aware of the facts to
reasonably doubt the judge’s impartiality, discretionary disqualification would not be
required in a subsequent hearing involving the warrant. (§ 170.1, subd. (a)(6)(A)(iii);
Com. on Jud. Performance, Decision and Order Imposing Public Admonishment on
Judge Robert M. Letteau (2004) pp. 6-7 [discipline imposed for conduct showing bias
when the trial judge made numerous statements displaying hostility against an attorney
based at least in part on the attorney’s statements in a fee request that were critical of the
court]; Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 858-861
[discipline imposed when the trial judge failed to remain objective, engaged in improper
personal involvement, and displayed a distaste for a party that overrode judge’s
objectivity].) Further, the issuance of a bench warrant would not, by itself, constitute bias
or the appearance of bias that would require discretionary disqualification. (Brown v.
American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 673 (Brown) [the issuance of
an adverse ruling does not indicate an appearance of bias, or demonstrate actual bias,
against a party].)
b. Acceptance of a plea agreement
At a change of plea hearing, a judge is responsible for ensuring that procedural
safeguards are satisfied, informing the defendant of constitutional rights, determining
whether the defendant’s plea is voluntary and deciding whether the conduct to which the
defendant admits satisfies the elements of the crimes and enhancements at issue. In this
capacity, the judge makes factual and legal findings and acts as a neutral, independent
decision maker, not as an advocate. (People v. Smith (1975) 53 Cal.App.3d 655, 658 [a
trial judge’s participation in a plea agreement is limited to approving the agreement after
evaluating the voluntariness of the plea and the fairness of the bargain to society as well
as to the defendant].) Thus, like the issuance of a bench warrant for failure to appear,

10
acceptance of a plea agreement by itself would not satisfy any basis for mandatory
disqualification in a subsequent matter to determine whether the crime legally qualifies as
a strike. Because a judge’s duties in connection with a plea agreement are anchored in
making factual findings that satisfy legal standards, discretionary disqualification in a
subsequent case involving the plea agreement would not be required unless other
circumstances exist that would cause a person aware of the facts to reasonably doubt the
judge’s impartiality in a later case or unless the plea agreement proceedings unfolded in a
manner that would cause the judge to doubt his or her own impartiality.
(§ 170.1(a)(6)(A)(ii), (iii); Brown, supra, 224 Cal.App.4th at 674.)
3. Other Considerations
Practical factors also support the conclusion that a trial judge who issues a bench
warrant or accepts a plea agreement is not required to disqualify in future proceedings.
For example, some courts may have a practice of assigning a case involving an earlier
matter to the trial judge who handled that matter. This approach fosters efficiency and
consistency, and it should not, in the absence of other disqualifying circumstances,
require disqualification. Indeed, a judge has a fundamental duty to decide each case
independently based only on the applicable law and relevant evidence and without bias or
prejudice. (Canon 2 [judges are required to uphold the integrity and independence of an
impartial judiciary]; Canon 3B(5) [judges must perform judicial duties without bias or
prejudice]; Rothman, supra, § 7:43, p. 457 [trial judges must maintain “exquisite
impartiality” and put aside personal opinions in every case to base decisions only on the
evidence and the applicable law].) Moreover, given the number and types of appearances
required of all criminal defendants, a requirement that a trial judge disqualify based solely
on having issued a bench warrant based on a failure to appear or accepted a plea
agreement would lead to an increase in unnecessary disqualifications.

11
V. Conclusion
For substantive and other practical reasons, a trial judge who issued a bench
warrant based on a failure to appear or accepted a plea agreement in a criminal trial court
is not required to disqualify from subsequent hearings or cases involving those matters
based on having taken those judicial actions unless other circumstances justify
disqualification.

This opinion is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions
expressed in this opinion are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)