CJEO Formal Opinion No. 2025-028 — Disqualification and Disclosure Requirements Under the Racial Justice Act

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Formal Opinion 2025-028
[Issued August 7, 2025]
DISQUALIFICATION AND DISCLOSURE REQUIREMENTS UNDER THE
RACIAL JUSTICE ACT
I. Question
The California Supreme Court Committee on Judicial Ethics Opinions (CJEO or
the Committee) has been asked to address the ethical issues regarding disqualification
and disclosure requirements in cases involving Racial Justice Act claims.
II. Facts
The requesting judge seeking the Committee’s opinion is presiding over a criminal
case where the charges include firearm enhancements under Penal Code section
12022.53, subdivision (d) that carry a potential exposure of an additional and consecutive
term of imprisonment for 25 years to life (“the current case”). The defense attorney in
this matter filed a motion pursuant to the Racial Justice Act (Pen. Code, § 745, subd. (d))
(“Racial Justice Act”) seeking discovery back to the year 2000 from the county district

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attorney’s office of all cases where the initial charges filed included firearm
enhancements that would potentially expose defendants to a life sentence.
Before being appointed to the bench, the requesting judge worked in the county
district attorney’s office from 1998 to 2010. While working as a prosecutor, the judge
personally handled cases involving firearm enhancements in both the gang and homicide
units, although they never handled any cases involving the defendant in the current case.
The judge did not serve in any administrative or management capacity in the district
attorney’s office that involved policy making or charging decisions. The question is
whether the judge is now required to disqualify from the current case, and if not, what
must the judge disclose.
III. Advice Provided
A trial judge who worked as a prosecutor prior to taking the bench must be
disqualified from a case: (1) if the judge actively participated in some substantive aspect
of the prosecution of the current case against this defendant; (2) if the judge actively
participated in the prosecution of a previous case against this defendant that is alleged as
a prior for sentencing purposes in the present case; (3) if the judge believes their recusal
would further the interests of justice; (4) if the judge believes there is a substantial doubt
as to the judge’s capacity to be impartial; or (5) where a person aware of the facts might
reasonably entertain a doubt that the judge would be able to be impartial. (Cal. Code Jud.
Ethics, Canon 3E(2); Cal. Code Civ. Proc., § 170.1.) 1
However, a judge is not automatically required to recuse merely because the
judge, while working as a deputy district attorney, handled cases involving elements that
may be subject to discovery under a motion pursuant to the Racial Justice Act or that
could be used to establish a violation of the Act in the case before them. Nevertheless,
disqualification is required if the judge’s prior prosecutorial involvement was such that a
1 All further references to the Code, Canons, Terminology, and Advisory Committee Commentary are to
the California Code of Judicial Ethics unless otherwise indicated.

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reasonable person, aware of the circumstances, could justifiably doubt the judge’s ability
to remain impartial. Where a judge decides not to disqualify from a case, the judge must
disclose on the record any facts reasonably relevant to the determination of
disqualification. This includes any facts the judge considered when deciding not to
disqualify.
Accordingly, based on the facts presented by the requesting judge, the Committee
advises that the judge need not disqualify but should disclose, on the record, any
information reasonably relevant to the issue of disqualification under Code of Civil
Procedure section 170.1, including all facts the judge considered in deciding against
disqualification. (Canon 3E(2)(a)).
IV. Authorities
A. Applicable Canons
Advisory Committee commentary following Canons 2 and 2A: “…Code of Civil
Procedure section 170.2, subdivision (b), provides that, with certain exceptions, a judge
is not disqualified on the ground that the judge has, in any capacity, expressed a view on
a legal or factual issue presented in the proceeding before the judge….”
Canon 3B(1): “A judge shall hear and decide all matters assigned to the judge
except those in which he or she is disqualified.”
Canon 3E(1): “A judge shall disqualify himself or herself in any proceeding in
which disqualification is required by law.”
Advisory Committee commentary following Canon 3E(1): “The term ‘proceeding’
as used in this canon encompasses prefiling judicial determinations. Thus, if a judge has
a disqualifying interest in a matter, the judge is disqualified from taking any action in the
matter, even if it predates the actual filing of a case, such as making a probable cause
determination, signing a search or arrest warrant, setting bail, or ordering an own
recognizance release. Interpreting ‘proceeding’ to include prefiling judicial
determinations effectuates the intent of the canon because it assures the parties and the
public of the integrity and fairness of the judicial process.”
Canon 3E(4): “An appellate justice shall disqualify himself or herself in any
proceeding if for any reason:

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(a) the justice believes his or her recusal would further the interests of justice; or
(b) the justice substantially doubts his or her capacity to be impartial; or
(c) the circumstances are such that a reasonable person aware of the facts would
doubt the justice’s ability to be impartial.”
Canon 3E(5) provides: “Disqualification of an appellate justice is also required in
the following instances:
(a) The appellate justice has served as a lawyer in the pending proceeding, or has
served as a lawyer in any other proceeding involving any of the same parties if
that other proceeding related to the same contested issues of fact and law as the
present proceeding, or has given advice to any party in the present proceeding
upon any issue involved in the proceeding.”
Advisory Committee commentary following Canon 3E(5)(a): “Canon 3E(5)(a) is
consistent with Code of Civil Procedure section 170.1, subdivision (a)(2), which
addresses disqualification of trial court judges based on prior representation of a party
in the proceeding.”
B. Constitutional Provisions, Statutes, and Other Authorities
Cal. Code Civ. Proc., § 170.
Cal. Code Civ. Proc., § 170.1, subd. (a)(2)(A), (B), & (C).
“(2) (A) The judge served as a lawyer in the proceeding, or in any other
proceeding involving the same issues he or she served as a lawyer for a party in
the present proceeding or gave advice to a party in the present proceeding upon a
matter involved in the action or proceeding.
(B) A judge shall be deemed to have served as a lawyer in the proceeding if within
the past two years:
(i) A party to the proceeding, or an officer, director, or trustee of a party,
was a client of the judge when the judge was in the private practice of law
or a client of a lawyer with whom the judge was associated in the private
practice of law.
(ii) A lawyer in the proceeding was associated in the private practice of law
with the judge.

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(C) A judge who served as a lawyer for, or officer of, a public agency that is a
party to the proceeding shall be deemed to have served as a lawyer in the
proceeding if he or she personally advised or in any way represented the public
agency concerning the factual or legal issues in the proceeding.”
Cal. Code Civ. Proc., § 170.1, subd. (a)(6)(A) & (B).
“(6) (A) For any reason:
(i) The judge believes his or her recusal would further the interests of
justice.
(ii) The judge believes there is a substantial doubt as to his or her capacity
to be impartial.
(iii) A person aware of the facts might reasonably entertain a doubt that the
judge would be able to be impartial.
(B) Bias or prejudice toward a lawyer in the proceeding may be grounds for
disqualification.”
Cal. Pen. Code, § 745 (Racial Justice Act).
Cal. Pen. Code § 12022.53.
In re Arthur S. (1991) 228 Cal.App.3d 814.
Muller v. Muller (1965) 235 Cal.App.2d 341.
People v. Crappa (1925) 73 Cal.App. 260.
Sincavage v. Superior Court (1996) 42 Cal.App.4th 224.
Williams v. Pennsylvania (2016) 579 U.S. 1.
Cal. Judges Assn., Judicial Ethics Update (2016).
Cal. Judges Assn., Judicial Ethics Update (2012).
Cal. Judges Assn., Formal Ethics Opn. No. 63 (2009).
Cal. Judges Assn., Formal Ethics Opn. No. 56 (2006).

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CJEO Oral Advice Summary 2016-017, Disqualification for Prior Appearance as
a Deputy District Attorney in Another Proceeding, Cal. Supreme Ct., Com. Jud. Ethics
Opns.
CJEO Oral Advice Summary 2015-016, Full Bench Disqualification, Cal.
Supreme Ct., Com. Jud. Ethics Opns.
CJEO Formal Opinion 2015-007, Disqualification for Prior Appearance as a
Deputy District Attorney in a Nonsubstantive Matter, Cal. Supreme Ct., Com. Jud. Ethics
Opns.
Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017) §§ 7.6, 7.37.
V. Background
In 2020, California passed the Racial Justice Act, which declares, “The state shall
not seek or obtain a criminal conviction, or seek, obtain, or impose a sentence on the
basis of race, ethnicity, or national origin.” (Pen. Code, § 745, subd. (a).) A violation is
established if the defendant proves, by a preponderance of the evidence, any of the
following:
(1) A listed person (judge, attorney, law enforcement officer, expert witness, or
juror) exhibited bias toward the defendant because of the defendant’s race,
ethnicity, or national origin;
(2) A listed person used discriminatory language about the defendant’s race or
otherwise exhibited bias or animus toward the defendant based on the
defendant’s race, ethnicity, or national origin; does not have to be purposeful;
(3) Defendant was convicted of a more serious offense than other defendants of
other races who are similarly situated; and evidence shows the prosecution
more frequently sought convictions for other people of defendant’s race,
ethnicity, or national origin in that county;
(4) (A) Longer or more severe sentences were imposed on the defendant than other
similarly situated defendants convicted of the same offense; and longer or
more severe sentences are frequently imposed for that offense on people of
defendant’s race, ethnicity, or national origin than defendants of other races,
ethnicities, or national origins in that county;

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(B) Longer or more severe sentences were more frequently imposed for the
same offense on defendants in cases with victims of one race, ethnicity, or
origin than in cases with victims of other races, ethnicities, or national origins.
(Cal. Pen. Code, § 745, subd. (a)(1)-(4).)
Subdivision (d) states that “[a] defendant may file a motion requesting disclosure
to the defense of all evidence relevant to a potential violation of subdivision (a) in the
possession or control of the state. A motion filed under this section shall describe the type
of records or information the defendant seeks. Upon a showing of good cause, the court
shall order the records to be released. Also upon a showing of good cause, and if the
records are not privileged, the court may permit the prosecution to redact information
prior to disclosure.” (Id. at subd. (d).)
VI. Discussion
A. Disqualification
Judges have a duty to hear all cases from which they are not disqualified. 2 (Canon
3B(1) [judicial officers have a duty to serve unless disqualified]; Code Civ. Proc., § 170
[trial court judges have an affirmative obligation to serve unless disqualified].) A judge
must disqualify in any proceeding in which disqualification is required by law. (Cal.
Code Jud. Ethics, Canon 3E(1).) The grounds for disqualification of trial court judges are
provided in Section 170.1 of the California Code of Civil Procedure. A judge is
disqualified from hearing a case if the judge previously served as a lawyer in the
proceeding or served as a lawyer for a party in the present proceeding in any other
proceeding involving the same issues. (Code Civ. Proc., § 170.1, subd. (a)(2)(A).)
2 The disqualification statute applies to trial court judges, but appellate justices are subject to substantially
similar rules as specified in canons 3E(4), (5), and (6). (CJEO Oral Advice Summary 2018-023 (2018),
Disqualification Responsibilities of Appellate Court Justices, Cal. Supreme Ct. Com. Jud. Ethics Opns., p.
3 [the grounds for disqualification of appellate justices in canon 3 largely track the statutory requirements
for trial judges]; Rothman et al., Cal. Jud. Conduct Handbook (4th ed. 2017) § 7:1, p. 388 [the canons
governing disqualification for appellate justices parallel Code Civ. Proc., § 170.1 et seq., so appellate
justices may look to analysis of the statutory rules for guidance].)

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Whether a judge must recuse when they “served as a lawyer in the proceeding” turns on
the nature of the judge’s activity in relation to the matter, as well as the parties, lawyers,
and issues therein. (Rothman, Cal. Judicial Conduct Handbook (4th Ed.) § 7.37, p. 447.)
The committee concluded in CJEO Formal Opinion 2015-007 that section 170.1
does not require disqualification of a judge who previously served as a deputy district
attorney in the same case on a “perfunctory, nonsubstantive hearing,” such as a brief
appearance at an uncontested motion or scheduling conference, because a person aware
of the fact that the judge did not “actively participate” in the prosecution would not have
reason to doubt the judge’s impartiality. (CJEO Formal Opinion 2015-007, pp. 2-3, 12,
14 [“[D]isqualifying service as a lawyer in the proceeding requires at least a modicum of
active participation”].)
On the other hand, where a judge made a prior appearance on a substantive matter
in the same case, disqualification is required. (CJEO Formal Opinion 2015-007, p. 10,
citing People v. Crappa (1925) 73 Cal.App. 260, 261 [judge’s revocation of probation
and sentencing reversed where the judge previously appeared as a deputy district attorney
at the defendant’s arraignment and probation hearings in the same matter].) In Williams
v. Pennsylvania (2016) 579 U.S. 1 (Williams) the United States Supreme Court held
“there is an impermissible risk of actual bias when a judge earlier had significant,
personal involvement as a prosecutor in a critical decision regarding the defendant's
case.” (Williams, supra, 579 U.S. at p. 8 [Disqualification required where former
prosecutor served as an advocate for the state in a case that then came before the judge].)
Here, the judge did not previously serve as a lawyer in any capacity in the present
proceeding. (See Code Civ. Proc., § 170.1, subd. (a)(2)(A); CJEO Formal Opinion 2015-
007; CJEO Oral Advice Summary 2016-017.) Accordingly, the judge would not be
disqualified on those grounds.
Subdivision (a)(2)(A) also requires disqualification where, “in any other
proceeding involving the same issues,” a judge “served as a lawyer for a party in the
present proceeding….” (Code Civ. Proc., § 170.1, subd. (a)(2)(A) (emphasis added).)

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The term “issues” is narrowly interpreted. (Rothman, Cal. Judicial Conduct Handbook
(4th Ed.) § 7.37, pp. 448-49.) “ ‘[S]ame issue’ has been held to mean ‘the disputed point
or question to which the parties to an action have narrowed their several allegations and
upon which they are desirous of obtaining either the decision of the court on a question of
law or of the court or jury on a question of fact.’ ” (Rothman, Cal. Judicial Conduct
Handbook (4th Ed.) § 7.37, p. 448, citing Muller v Muller (1965) 235 Cal.App.2d 341,
343-344; In re Arthur S. (1991) 228 Cal.App.3d 814, 820-822.) There must be some
“identity of issues between the two proceedings.” (In re Arthur S., at p. 820.)
In Oral Advice Summary 2016-017, the Committee concluded that a “judge who
actively participated in the prosecution of a case alleged as a prior for purposes of
sentencing is disqualified from hearing any proceeding in the matter in which the prior is
alleged.” (CJEO Oral Advice Summary 2016-017, p. 2.) In this case, the judge – a
former prosecutor – had no “significant, personal involvement as a prosecutor in a critical
decision regarding the defendant’s case.” (Williams, supra, 579 U.S. at p. 2.) Nor did the
judge actively participate in the prosecution of a case alleged as a prior for sentencing
purposes. (CJEO Oral Advice Summary 2016-017, p. 2.) As such, the judge would not
be disqualified on those grounds.
The next inquiry is whether, “in any other proceeding involving the same issues,”
a judge “gave advice to a party in the present proceeding upon a matter involved in the
action or proceeding.” (Code Civ. Proc. § 170.1, subd. (a)(2)(A)).) The initial charges in
the present proceeding included firearm enhancements under Penal Code 12022.53,
subdivision (d). Firearm enhancements are generally considered a question of fact –
namely, whether the defendant, in the commission of a felony, personally and
intentionally discharged a firearm and caused great bodily injury or death to someone
other than an accomplice. (Pen. Code § 12022.53, subd. (d).) During the judge’s time at
the district attorneys’ office, the judge (as a lawyer) personally handled several cases
involving firearm enhancements in the gang and homicide units, which necessarily
involved giving advice to a party (the state) upon a matter involved in the present

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proceeding (firearm enhancement). (Rothman, § 7:37, p. 448 [“Although there appear to
be no cases regarding the meaning of ‘a matter involved in the action or proceeding,’ the
language reasonably should be read to relate to actual matters ‘involved’ in the case
itself”].)
However, the fact that the judge as a former prosecutor previously handled cases
with firearm enhancement allegations under Penal Code 12022.53, subdivision (d), in
conjunction with the fact that the current case also involves firearm enhancements, lacks
the nexus required to rise to the level of “any other proceeding involving the same
issues.” There are no overlapping issues of law or fact between the current and former
proceedings solely because they all involve firearm enhancements. To conclude
otherwise would mean any judge who prosecuted rape cases as a district attorney would
not be permitted to adjudicate cases involving rape charges, any judge who formerly
worked on murder cases would not be permitted to adjudicate cases involving murder
charges, and so on. This interpretation would hinder the proper administration of justice
in cases where there is no valid reason to question impartiality, which runs counter to the
intent of the disqualification statutes. Accordingly, the judge here would not be
disqualified from the current case based solely on the fact that, as district attorney, they
previously handled cases with gun enhancements. On the other hand, if the judge, as
district attorney, had worked on a prior case with gun enhancements against this
defendant, disqualification would be appropriate.
The question presented here, however, is whether defendant’s discovery motion
under the Racial Justice Act brings this case within the purview of Code of Civil
Procedure section 170.1, subdivision (a)(2)(A) on disqualification. In CJEO Oral Advice
Summary 2016-017, the committee found a “judge who actively participated in the
prosecution of a case alleged as a prior for purposes of sentencing is disqualified from
hearing any proceeding in the matter in which the prior is alleged.” (Id. at p. 2.) Here,
the judge actively participated in the prosecution of cases that may evidence violation(s)
of Penal Code section 745, subdivision (a) for purposes of the present proceeding against

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this defendant. If the court finds a violation of subdivision (a) before judgment, the court
may declare a mistrial, discharge the jury and empanel a new one, or dismiss
enhancements, special circumstances, or special allegations, or reduce one or more
charges. (Penal Code, § 745, subd. (e)(1).) If after a judgment has been entered, the
court finds that a conviction was sought or obtained in violation of subdivision (a), the
court must vacate the conviction and sentence, finding it legally invalid, and impose a
new sentence. (Penal Code, § 745, subd. (e)(2).)
As noted above, a judge is disqualified if, “in any other proceeding involving the
same issues,” the judge “gave advice to a party in the present proceeding upon a matter
involved in the action or proceeding.” (Code Civ. Proc., § 170.1, subd. (a)(2)(A).) After
clearing the “active participation” hurdle, the next inquiry is “whether there was any
identity of issues between the two proceedings.” (In re Arthur S., supra, 228 Cal. App.
3d at pp. 820-821 [The referee did not impliedly serve as both attorney and judge in the
same proceeding when he acted as the referee for the second petition, following his role
as deputy district attorney in the first petition. There is no proof that the referee provided
any legal counsel on matters related to the second petition, and the issues between the
two cases were not closely related enough to create a conflict.]; but see, Sincavage v.
Superior Court (1996) 42 Cal.App.4th 224, 230 [judge who actively participated in the
prosecution of a case alleged as a prior for sentencing purposes is disqualified from
hearing any proceeding in the matter in which the prior is alleged].)
When analyzing the “same issues” requirement, the In re Arthur S. court stated
that “[a]lthough we have concluded the two petitions marked what were in fact separate
proceedings between the same parties, Code of Civil Procedure section 170.1 still
provides mechanisms whereby they may be treated as the same proceeding, and therefore
may require disqualification.” (In re Arthur S., supra, 22 Cal.App.3d at 820.) Here, we
have the current case before the judge, and previous cases handled by the judge as a
prosecutor against different defendants, with nothing in common except for firearm
enhancement allegations under Penal Code section 12022.53, subdivision (d). The

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throughline of these various proceedings is too faint to treat them as “involving the same
issues” for the purpose of section 170.1, subdivision (a)(2)(A). Accordingly, the judge is
not required to recuse on these grounds.
It bears noting that there is no applicable time limit to the disqualification
requirement where: “the judge served as a lawyer in the proceeding”; or where “in any
other proceeding involving the same issues [the judge] served as a lawyer for a party in
the present proceeding”; or where in any other proceeding involving the same issues the
judge “gave advice to a party in the present proceeding upon a matter involved in the
action or proceeding.” (Code Civ. Proc., § 170.1, subd. (a)(2)(A).)
Section 170.1, subdivision (a)(2)(B) of the Code of Civil Procedure states that “[a]
judge shall be deemed to have served as a lawyer in the proceeding if within the past two
years: (i) A party to the proceeding, or an officer, director, or trustee of a party, was a
client of the judge when the judge was in the private practice of law or a client of a
lawyer with whom the judge was associated in the private practice of law [or] (ii) [a]
lawyer in the proceeding was associated in the private practice of law with the judge.”
(Code Civ. Proc., § 170.1, subd. (a)(2)(B)(i)-(ii).) Based on the question presented, this
section is not relevant to our analysis.
Section 170.1 goes on to say, “A judge who served as a lawyer for, or officer of, a
public agency that is a party to the proceeding shall be deemed to have served as a lawyer
in the proceeding if he or she personally advised or in any way represented the public
agency concerning the factual or legal issues in the proceeding.” (Code Civ. Proc., §
170.1, subd. (a)(2)(C).) This language has been interpreted to apply to “lawyers who
represent and advise public agencies in forums other than court proceedings, such as
administrative and agency hearings, and who provide to the agencies legal advice
generally.” (CJEO Formal Opinion 2015-007, p. 7, fn. 4 [“As an example, a former
deputy county counsel who represented the county in annexation hearings before a local
agency formation commission (LAFCO) is disqualified under subdivision (a)(2)(C) from

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presiding as a judge over a court proceeding challenging some aspect of that LAFCO
annexation”].)
In addition to the above specific instances that require disqualification, a judge
must also recuse if, “[f]or any reason: “(i) [t]he judge believes his or her recusal would
further the interests of justice”; “(ii) [t]he judge believes there is a substantial doubt as to
his or her capacity to be impartial”; or (iii) “[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)(A)(i)-(iii).) Thus, if in the question presented here, the
requesting judge believes recusal would further the interests of justice, or the judge
cannot be impartial, disqualification is required.
A judge must also consider whether a person aware of the fact that the judge, as a
prosecutor, actively participated in cases involving firearm enhancement allegations
might reasonably entertain a doubt that the judge would be able to be impartial in the
present proceeding involving a defense request for discovery under the Racial Justice
Act, which may include cases handled by the judge as a prosecutor, and which may be
used to establish a violation of the Racial Justice Act in the current case.
In considering this question, the only commonality between the current case
before the requesting judge and the previous cases handled by the judge as a prosecutor
against other defendants that may be subject to discovery under the RJA is that they
involve firearm enhancement charges under Penal Code section 12022.53, subdivision
(d). The judge’s participation as a prosecutor in any such previous cases was no more or
less than any other deputy district attorney employed by the county during the relevant
time period of the discovery request. If a judge in this scenario was required to
disqualify, presumably any judge who formerly served in the county district attorney’s
office in the past 25 years and worked on any case involving a firearm enhancement
would also be required to do the same. This is impractical and, in the committee’s view,
unnecessary where, as here, any overlap between the current case before the judge and
previous cases handled by the judge as a prosecutor is that they involve similar

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enhancement charges. The risk of bias or the appearance of bias is low, and it is unlikely
a person aware of the facts could reasonably entertain a doubt that the judge would be
able to remain impartial in the present proceeding. As such, disqualification would not
be required.
Note that the result may be different if the requesting judge, as a former
prosecutor, participated in developing or directing the district attorney’s policy regarding
charging firearm enhancements, or was directly involved in making charging decisions,
as opposed to following office policy. These facts, not present here, may increase the
likelihood that a person aware of the facts could reasonably entertain a doubt as to the
judge’s ability to remain impartial. Such a determination will need to be made on a case-
by-case basis. 3
B. Disclosure
Where a trial court judge 4 concludes that disqualification is not required, the code
requires the judge to disclose, on the record, any information reasonably relevant to the
issue of disqualification under Code of Civil Procedure section 170.1. (Canon 3E(2)(a)).
This includes all facts the judge considered in deciding against disqualification.
(Rothman, supra, § 7:75, p. 500 [defining “relevant” as an objective measure of whether
the information may reasonably support or refute a given matter].) Here, the requesting
3 Even where disqualification is appropriate, the decision to disqualify must be made by the trial judge; a
presiding judge cannot declare the entire bench of a court disqualified without polling every judge, and
similarly, should not preemptively disqualify all judges who are former prosecutors. (CJEO Oral Advice
Summary 2016-015, p. 2, citing Kaufman v. Court of Appeal (1982) 31 Cal.3d 933 [each appellate judge,
and by extension, trial court judge, must decide for themselves whether disqualification is required].)
4 Although not bound by the disclosure rules, an appellate justice also has the option of disclosing certain
facts on the record within the justice’s ability and discretion. (Canon 3E(2) [limiting disclosure rules to
trial proceedings]; Rothman, supra, § 7:90, p. 502–503 [acknowledging that disclosure for appellate
justices is complicated by the fact that a justice may not appear before the parties until after a case has
been fully briefed]; CJEO Oral Advice Summary 2017-021 (2017), Disqualification for Acquaintance
with Leaders of an Amicus Curiae, Cal. Supreme Ct. Com. Jud. Ethics Opns., p. 3 [an appellate justice
has discretion to disclose an acquaintance with the leaders of organizations that filed amicus curiae
briefs].)

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judge should disclose the fact that the judge was previously employed with the district
attorney’s office, and during that time they handled cases involving gun enhancements.
VII. Conclusion
A judge who formerly worked as a prosecutor must disqualify from the case:
where the judge actively participated in a substantive aspect of the prosecution of the
current case against the current defendant; where the judge actively participated in the
prosecution of a previous case against the current defendant that is alleged as a prior for
sentencing purposes in the current case; where the judge believes the recusal would
further the interests of justice; where the judge believes there is a substantial doubt as to
the judge’s capacity to be impartial; or where a person aware of the facts might
reasonably entertain a doubt that the judge would be able to be impartial.
A judge is not required to disqualify from the case solely because the judge, as a
prosecutor, handled cases with elements that make those previous cases subject to
discovery in response to a motion filed by the present defendant pursuant to the Racial
Justice Act, or that may be used to establish a violation of the Act in the case before the
judge. However, a judge must disqualify from the case if, as a prosecutor, the judge’s
participation in a case or cases was such that a person aware of the facts could reasonably
entertain a doubt as to the judge’s ability to remain impartial in the current case. Where a
judge decides not to disqualify from a case, the judge must disclose on the record any
facts reasonably relevant to the determination of 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)).)