People v. Garcia CA6 ( 2021 )


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  • Filed 5/11/21 P. v. Garcia CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                         H047402
    (Santa Clara County
    Plaintiff and Respondent,                               Super. Ct. No. 215526)
    v.
    VICTOR GARCIA,
    Defendant and Appellant.
    Appellant Victor Garcia appeals a trial court order in which the court found Garcia
    had violated his postrelease community supervision (PRCS) and required him to serve
    180 days in the county jail. For the reasons explained below, we affirm the order.
    I. FACTS AND PROCEDURAL BACKGROUND
    A. Procedural Background
    On January 14, 2016, Garcia pleaded no contest to one count of false
    imprisonment (Pen. Code, §§ 236, 2371). He admitted one prior strike. On May 13,
    2016, the trial court sentenced him to 32 months in prison with credit for time served,
    placed him on PRCS, and ordered him to report to the “Department of Parole” in San
    Jose.
    1
    Unspecified statutory references are to the Penal Code.
    On June 29, 2016, the probation department, which was the entity supervising
    Garcia on PRCS, filed a petition for revocation (§§ 3455, 1230.2) in which it alleged that
    Garcia had failed to report as ordered by the trial court and requested that the trial court
    revoke his PRCS.
    At a hearing on October 24, 2016, Garcia admitted on the record that he had
    violated his PRCS. The trial court sentenced him to 13 days in jail for the violation, gave
    him credit for time served, and reinstated and modified his PRCS. The trial court ordered
    Garcia to report back to his supervising officer within two days, and Garcia told the court
    that he understood the order.
    On November 30, 2016, the probation department filed a second petition for
    revocation, alleging that Garcia had violated several terms and conditions of his PRCS,
    including by failing to report and maintain contact with the probation department. The
    probation department recommended that Garcia’s PRCS be revoked and a bench warrant
    be issued. On December 5, 2016, the trial court found the allegations supported by
    probable cause. Garcia did not appear for a hearing on the alleged PRCS violations until
    2019.
    In July 2019, Garcia was arraigned on the alleged violations. At a subsequent
    hearing on July 30, 2019, Garcia denied he had violated his PRCS in 2016.
    On August 12, 2019, Garcia appeared with his appointed attorney for a formal
    violation hearing (§ 1203.2, subd. (b)(1)). Shortly after the matter was called by the trial
    court, Garcia asked the trial court to appoint another attorney to represent him, and the
    trial court held a Marsden hearing on Garcia’s request.2 After hearing from Garcia and
    his counsel, the trial court denied Garcia’s Marsden motion. Following the conclusion of
    the Marsden hearing, the trial court proceeded with the formal violation hearing.
    2
    People v. Marsden (1970) 
    2 Cal.3d 118
    .
    2
    B. Evidence Presented at the August 12, 2019 Violation Hearing
    1. Prosecution Evidence
    Valdemar da Rocha, a probation officer with the Santa Clara County Probation
    Department, testified. Officer da Rocha stated that Garcia was transferred to his
    supervision in late October 2016. After receiving the transfer, da Rocha had reviewed the
    prior probation officer’s entries or notes and learned that Garcia had previously violated
    his PRCS for failing to report. Officer da Rocha also learned that Garcia’s next
    appointment with a probation officer was scheduled for November 9, 2016. On
    November 9, 2016, Garcia did not report in person to da Rocha. Officer da Rocha stated
    that Garcia had left “several messages” to a “previous PO and second probation officer’s
    voicemail indicating he wasn’t going to be able to make it on the 9th and he eventually
    left one on my voicemail.” Garcia indicated in his message to da Rocha, as well as to the
    other probation officer, that he could not make the appointment because of a “medical
    emergency.” Garcia did not provide da Rocha with any contact information. Although
    Garcia had stated he “was in the hospital,” he did not leave any information about the
    hospital.
    On November 14, 2016, Garcia called Officer da Rocha, and they spoke on the
    phone. This conversation was the only time that Garcia and da Rocha ever spoke. Garcia
    gave da Rocha the name of the hospital and room number, and da Rocha told Garcia he
    would meet him at the hospital. Officer da Rocha testified that in their conversation
    Garcia did not express confusion about why he had to call da Rocha. Officer da Rocha
    informed Garcia that “it was his responsibility to maintain contact with me and to notify
    me of any changes in his contact information.” Garcia did not challenge da Rocha’s
    statement.
    On November 15, 2016, before they could meet at the hospital, Garcia called
    Officer da Rocha and left him a voicemail to tell him he had been discharged. Garcia left
    another voicemail message on November 18, 2016, “indicating that he was going to try to
    3
    contact [da Rocha] at a later time to set up an appointment.” However, da Rocha never
    heard from Garcia. Officer da Rocha filed a petition for revocation. Following the filing
    of the petition, Garcia did not contact either da Rocha or anyone else at the probation
    department.
    During Officer da Rocha’s testimony, the prosecution marked for identification
    the petition for revocation filed on November 30, 2016, which the prosecution described
    as including an attachment labeled “ ‘Special Conditions of Post-Release Community
    Supervision.’ ” The prosecution requested that the trial court admit three pages titled
    “ ‘Special Conditions of Post-Release Supervision’ ” (hereafter Exhibit 1 or PRCS
    conditions). After defense counsel confirmed he had no objection to admission of the
    exhibit, the trial court admitted Exhibit 1 into evidence.3
    2. Defense Evidence
    Garcia testified in his own defense. Garcia acknowledged that he had previously
    been in court for a PRCS violation, but he was not sure of the date. When questioned
    3
    The record on appeal does not include a copy of this document, but there is no
    dispute Garcia signed it. Although the trial court prepared a settled statement about the
    exhibit admitted into evidence at the hearing in response to an order from this court, the
    settled statement does not include a document matching the description of Exhibit 1.
    According to the settled statement, “[d]uring the hearing [on August 12, 2019], an
    Exhibit was marked as #1 and the first three pages of it were admitted into evidence” and
    “[a]t the conclusion of the hearing the Exhibit was returned to the party that produced it
    and the court did not keep a copy” (italics added). The settled record attaches three pages
    that consist of the petition for revocation filed on November 30, 2016, by Officer da
    Rocha (petition) and two attachments to the petition on Judicial Council Form MC-025.
    By contrast, the reporter’s transcript for the August 12, 2019 hearing does not
    reflect that the first three pages of the marked exhibit were admitted into evidence.
    Rather, the prosecution requested the trial court mark a copy of the petition which was
    “many pages thick” and stated “[i]n the middle of it there is a document called ‘Special
    Conditions of Post-Release Community Supervision’ ” that had “a signature of Victor
    Garcia and a probation officer explaining the terms and conditions of PRCS.” It was that
    three-page document—not that first three pages of the petition— that was then admitted
    into evidence. While we note this anomaly between the reporter’s transcript and the
    settled statement, it has no material impact on our analysis here.
    4
    whether he remembered the outcome of that hearing, Garcia stated that “I remember
    having a conversation with you concerning all of that. Whether I got a full understanding
    of it, I probably didn’t.” He remembered being released from court. He believed,
    however, that after he was released from court, he reported to the probation department
    on October 26, 2016, and he met with a “female” and he tried to “explain to her that I
    didn’t believe I was on probation.” He acknowledged he was “given papers” and he “did
    sign some” but that he did not believe he understood them. Garcia was shown Exhibit 1
    (the PRCS conditions) and testified that he had just “signed it” but “didn’t read any of it.”
    Garcia did not remember an appointment being set with probation for November 9, 2016,
    but he did recall making a phone call when he was “in the hospital.” Garcia maintained
    that he “wasn’t trying to elude anybody” and had been in and out of the hospital and was
    homeless.
    Regarding when he spoke to Officer da Rocha, Garcia stated, “I told him that I –
    that it looked like I was going to be released the next day, I would try to get ahold of him
    if I could – I didn’t have a cell phone – and that was it. That was basically it. I left that
    message on his recorder.”
    Garcia stated that towards the end of 2016 or maybe the early part of 2017 he had
    a conversation with probation, spoke to a woman, and “once again I tried to explain to
    them why was I on probation, and she told me that [] – I had to be or whatever the case
    may be. I’m not exactly sure word for word.” When questioned further on direct
    examination about what the woman in the probation office told him, Garcia testified that
    “[w]e had an extensive conversation, but what it was all about, I really don’t, you know –
    I can’t recall.” Garcia stated it “was all confusing” and he “still believed I was not on
    probation and I shouldn’t have been on probation.” He acknowledged on direct
    examination that he “never had any contact with [the probation department] after that.”
    5
    C. Trial Court’s Ruling
    After the close of testimony and further argument by counsel, the trial court ruled
    that Garcia had violated the conditions of his PRCS. The trial court stated: “All right.
    And I often give people a break usually if they admit early and, Mr. Garcia, you seem
    like a nice guy and I would like to give you break, but in all fairness to everybody else, I
    don’t think I should because, No. 1, you were gone for, as you say, three and a half years,
    and the people that are gone for much less than that I give them 180 days. And also I do
    not believe that you did not know you were on supervision. [¶] The reason I don’t
    believe it is that several people have told you – your attorneys, the judges that sentenced
    you, the judge that took the violation of probation, the probation officer himself and
    herself that spoke to you, of all – I mean, you don’t call them without reason and
    basically you never told them, ‘Stop bothering me. I’m not on supervision.’ You never
    told them that because they didn’t say that. And finally, it’s not the first time you’ve
    been in trouble in this case. You’ve been in since – you’ve been a youthful offender.
    You’ve been in and out of prison.”
    Following this statement by the trial court, Garcia noted that “I’ve only been to
    prison one time, your Honor.” Neither Garcia or his defense counsel made any other
    objection or response to the trial court’s asserted reasons for not believing Garcia’s
    testimony that he was not on supervision.
    The trial court reinstated Garcia’s PRCS under its original terms and conditions,
    ordered Garcia to serve 180 days in the county jail for the violation, and awarded 53 days
    of custody credits.
    Garcia timely appealed the trial court’s order (§ 1237, subd. (b)).
    II. DISCUSSION
    On appeal, Garcia asserts (1) his defense counsel performed ineffectively by
    failing to object to the admission of Exhibit 1; (2) his defense counsel performed
    ineffectively by failing to object to comments made by the trial court reflecting its bias
    6
    against Garcia; and (3) the trial court erred in relying on statements by Garcia’s attorneys
    and other judicial officers in deciding that it did not believe that Garcia did not know he
    was on supervision or, alternatively, his defense counsel performed ineffectively by
    failing to object to the trial court’s reliance on those statements. We address each
    contention in turn.
    A. Ineffective Assistance of Counsel Claim Related to Admission of Exhibit 1
    Garcia claims that his defense counsel was ineffective for failing to object to
    Exhibit 1 (the PRCS conditions) as hearsay. Garcia points out that Officer da Rocha “did
    not describe the file which contained the document nor did da Rocha describe the
    provenance of the document” and Garcia argues there was “no tactical or strategic
    reason” for defense counsel to not object to the admission of Exhibit 1. Garcia argues
    that the prosecution failed to establish that the document fell within the business records
    exception to the hearsay rule. (Evid. Code, § 1271.)
    1. Legal Principles
    A criminal defendant’s right to effective assistance of counsel is guaranteed under
    the Sixth Amendment to the United States Constitution and article I, section 15 of the
    California Constitution. (Strickland v. Washington (1984) 
    466 U.S. 668
    , 686
    (Strickland); People v. Rices (2017) 
    4 Cal.5th 49
    , 65.) Whether on direct appeal or in
    collateral proceedings, a defendant “claim[ing] that counsel’s assistance was so defective
    as to require reversal of a conviction” bears the burden of proving that counsel’s deficient
    performance resulted in prejudice. (Strickland, at p. 687.)
    To satisfy Strickland’s two-part test, a “defendant must show that counsel’s
    representation fell below an objective standard of reasonableness” (Strickland, supra, 466
    U.S. at p. 688), and “a reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different.” (Id. at p. 694.) “It is
    particularly difficult to prevail on an appellate claim of ineffective assistance. On direct
    appeal, a conviction will be reversed for ineffective assistance only if (1) the record
    7
    affirmatively discloses counsel had no rational tactical purpose for the challenged act or
    omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
    simply could be no satisfactory explanation. All other claims of ineffective assistance are
    more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 
    57 Cal.4th 986
    , 1009, italics omitted.)
    Regarding a counsel’s failure to object to evidence, our higher court has observed
    that “[t]he decision whether to object to evidence at trial is a matter of tactics and,
    because of the deference accorded such decisions on appeal, will seldom establish that
    counsel was incompetent.” (People v. Lucas (1995) 
    12 Cal.4th 415
    , 444 [concluding
    defendant failed to show counsel were incompetent for omitting to move to suppress
    evidence on the chain of custody grounds]; see also People v. Hillhouse (2002) 
    27 Cal.4th 469
    , 502 [“[D]eciding whether to object is inherently tactical, and the failure to
    object will rarely establish ineffective assistance.”].)
    2. Analysis
    We decide that Garcia has not demonstrated his counsel’s representation fell
    below an objective standard of reasonableness because the record does not establish that
    that decision is not one for which there could be no satisfactory tactical explanation. It is
    reasonably possible that Exhibit 1 could have been admitted as an official record pursuant
    to Evidence Code section 1280. The object of the official records exception to the
    hearsay rule “ ‘is to eliminate the calling of each witness involved in the preparation of
    the record and substitute the record of the transaction instead. [Citations.] Accordingly,
    for the exception to apply, it is not necessary that the person making the entry have
    personal knowledge of the transaction. [Citations.] Assuming satisfaction of the
    exception’s other requirements, the trustworthiness requirement . . . is established by a
    showing that the written report is based upon the observations of public employees who
    had a duty to observe the facts and report and record them correctly.’ ” (McNary v.
    Department of Motor Vehicles (1996) 
    45 Cal.App.4th 688
    , 695, italics omitted; see also
    8
    Coe v. City of San Diego (2016) 
    3 Cal.App.5th 772
    , 786–788 [police reports are
    admissible under the official records exception].)
    The record does not contain any suggestion that the official records exception
    would not apply. We decide that Garcia has not established deficient performance by his
    counsel for failing to object to a document for which there is no reason to doubt a proper
    foundation could have been laid and which is otherwise routinely admissible.
    In any case, Garcia cannot establish prejudice because it is not reasonably
    probable that a result more favorable to Garcia would have been reached in the absence
    of the admission of Exhibit 1. The burden of proof in a PRCS violation hearing is by
    preponderance of the evidence. (See People v. Rodriguez (1990) 
    51 Cal.3d 437
    , 447
    (Rodriguez).) Substantial evidence, apart from Exhibit 1, supports the trial court’s
    decision that Garcia had violated his PRCS and that his testimony that he did not know he
    was on supervision was not credible.
    Garcia had already admitted violating the terms of his PRCS in October 2016 by
    failing to report to probation. Thereafter, according to Officer da Rocha’s testimony,
    Garcia had met with a probation officer on October 26, 2016, and was given a new date
    to meet with probation. Officer da Rocha spoke with Garcia by phone on November 14,
    2016, and Garcia never expressed any confusion about or questioned why he had to call
    da Rocha. Officer da Rocha testified he told Garcia that it was Garcia’s responsibility to
    stay in contact with him. In his own testimony, Garcia indicated he believed he had
    reported to the probation department and had a conversation with a woman there about
    probation. Although Garcia could not recount “word for word” the conversation, he
    testified that she had told him, when Garcia “tried to explain to them why was I on
    probation,” that “I had to be or whatever the case may be.”
    In light of this evidence, it is not reasonably probable that the trial court would
    have reached the conclusion that Garcia did not know he was on supervision and was
    required to report to probation, even in the absence of the admission of Exhibit 1. We
    9
    therefore reject Garcia’s claim that his defense counsel performed ineffectively by failing
    to object to its admission.
    B. Ineffective Assistance of Counsel and Judicial Bias
    Garcia contends that “[b]efore the hearing began, the court made several
    statements indicating that it had already decided that appellant was not credible.” Garcia
    states that “[t]hese statements began almost immediately after the case was called and
    continued during a subsequent Marsden motion.” Garcia claims that the trial court’s
    comments appear to evidence a biased attitude that violated his right to due process.
    Garcia asserts his counsel performed ineffectively by failing to object to the trial court
    “prejudging appellant and his defense” and by failing to request that the “matter be
    transferred to another department for hearing on the alleged violation.”
    “ ‘A fair trial in a fair tribunal is a basic requirement of due process.’ ” (People v.
    Freeman (2010) 
    47 Cal.4th 993
    , 1000 (Freeman).) The constitutional right to due
    process focuses on “those circumstances where, even if actual bias is not demonstrated,
    the probability of bias on the part of a judge is so great as to become ‘ “constitutionally
    intolerable.” ’ [Citation.] The standard is an objective one.” (Freeman, at p. 1001.) “[A]
    judge’s ‘rulings against a party—even when erroneous—do not establish a charge of
    judicial bias, especially when they are subject to review.’ ” (People v. Armstrong (2019)
    
    6 Cal.5th 735
    , 798.) Moreover, “the due process clause should not be routinely invoked
    as a ground for judicial disqualification. Rather, it is the exceptional case presenting
    extreme facts where a due process violation will be found.” (Freeman, at p. 1005.)
    Judicial bias is also addressed in California’s statutory disqualification scheme
    which, “is not solely concerned with the rights of the parties before the court but is also
    ‘intended to ensure public confidence in the judiciary.’ [Citation.] Thus, an explicit
    ground for judicial disqualification in California’s statutory scheme is a public perception
    of partiality, that is, the appearance of bias.” (Freeman, 
    supra,
     47 Cal.4th at pp. 1000–
    1001, fn. & italics omitted.)
    10
    We have carefully reviewed the transcripts from the Marsden and formal violation
    hearings. We disagree with Garcia’s characterization of the transcripts as showing that
    the court at the outset of the violation hearing had found Garcia’s defense unreasonable.
    While the trial court expressed skepticism when the matter was first called that Garcia did
    now know he was on supervision, the trial court allowed that Garcia might be able to
    present an explanation. The trial court’s other statements were made in the context of the
    Marsden hearing and reflected skepticism about Garcia’s statement in support of his
    request for new appointed counsel on the basis that counsel never advised him that he
    was on supervision. Read in context, we disagree with Garcia that the trial court
    indicated that it had prejudged Garcia with respect to the outcome of the violation
    hearing. Instead, the trial court stated that it would hear from the witnesses before
    making a decision on the revocation request.
    Garcia’s argument that the trial judge “prejudged” the outcome of the case is
    based primarily on People v. Barquera (1957) 
    154 Cal.App.2d 513
    . In Barquera, the
    appellate court reviewed statements by a trial judge in a suppression hearing where the
    judge stated several times to defense counsel that it would be a waste of time to present
    any evidence and that included the statement that “ ‘You have got admissions here by the
    defendant. I am not going to take his word against the police officer. I certainly
    wouldn’t believe that last character that was on the stand [referring to the defendant]. I
    don’t care what he testified to. I don’t think you have got any defense, Counsel.’ ” (Id. at
    pp. 515–517 & fn. 1.) In reversing this conviction, the court held that the trial judge’s
    reliance on testimony from the search and seizure hearing to decide guilt or innocence
    was improper and that the trial judge violated due process by “form[ing] an opinion of
    appellant’s guilt prior to the time appellant presented his defense.” (Id. at p. 515, fn.
    omitted.)
    By contrast, the trial court’s statements here were not unequivocal assertions that
    Garcia was untruthful, not credible, or that his defense was meritless. The trial court did
    11
    not indicate it would be a waste of time for Garcia to present evidence at the formal
    violation hearing. Following the Marsden hearing, Garcia testified about his version of
    events. The trial court did not disparage, improperly interject, or make any
    pronouncement about Garcia’s testimony other than deciding that, at the conclusion of
    the formal violation hearing, that it did not believe that Garcia did not know he was on
    supervision.
    Moreover, addressing specifically the comments made by the trial court at the
    Marsden hearing expressing skepticism, the trial judge here could not have ruled on
    Garcia’s Marsden motion without evaluating the evidence before it, which included
    statements by Garcia and his attorney. “When a defendant seeks to discharge appointed
    counsel and asserts inadequate representation, the trial court must permit the defendant to
    explain the basis of his or her contention and to relate specific instances of the attorney’s
    inadequate performance.” (People v. Winn (2020) 
    44 Cal.App.5th 859
    , 870.)
    “ ‘Depending on the nature of the grievances related by defendant, it may be necessary
    for the court also to question his [or her] attorney.’ ” (Ibid.)
    Garcia directly put in issue at the Marsden hearing that he had never been advised
    by his prior attorney for his original sentence and his current attorney (who also
    represented him at his first violation hearing) that he was on supervision. The trial court
    properly evaluated the assertions raised by Garcia himself in the context of Garcia’s
    Marsden motion. We disagree with Garcia that the trial court made any statements
    reflecting a general bias against him.
    We note that Garcia’s briefing appears to concede that there is no actual bias or
    constitutionally intolerable level of bias by the trial court contained in the record before
    us. In his reply brief, Garcia argues primarily that the federal standard does not apply and
    that, under California law relating to the disqualification of a judge, we must conclude
    that under the circumstances here the trial court appeared to be biased, and that reversal is
    12
    required “per se.” 4 We do not agree. Based on our careful review of the record,
    including the reporter’s transcripts from the August 12, 2019 hearing and the Marsden
    hearing on that same date, the record does not support Garcia’s attacks on the trial court’s
    fairness and impartiality. For example, while the trial court expressed frustration at the
    outset of the hearing at Garcia for having been gone for over two years we do not view
    this expression of frustration as creating an impermissible appearance of bias to the
    reasonable person.
    In sum, on this record and taking the trial court’s comments in context, we can not
    conclude that Garcia has established an ineffective assistance claim on the basis of his
    counsel failing to object to the alleged bias of the trial court.
    C. Trial Court’s Reliance on Information Not Presented at the Violation Hearing
    Garcia asserts that the trial court, in deciding Garcia had violated his PCRS,
    improperly relied on prior statements made by Garcia’s attorneys and prior judges that
    were not in evidence at the formal violation hearing. He further argues that his defense
    counsel’s failure to object “when the court used extraneous and inadmissible evidence
    that had not been presented at the hearing” did “not waive the issue because the trial
    court’s overall comments demonstrate that any objection would have been futile.”
    Alternatively, he claims his defense counsel performed ineffectively by failing to object
    to the trial court’s consideration of those statements.
    Garcia points to the pronouncement made by the trial court after the close of
    testimony where the trial court stated it did not believe Garcia that he did know he was on
    4
    Specifically, Garcia cites to Code of Civil Procedure section 170.1. “[Code of
    Civil Procedure] [s]ection 170.1(a)(6)(A)(iii) states that a judge is disqualified if ‘[a]
    person aware of the facts might reasonably entertain a doubt that the judge would be able
    to be impartial.’ ‘ “Impartiality” entails the “absence of bias or prejudice in favor of, or
    against, particular parties or classes of parties, as well as maintenance of an open
    mind.” ’ ” (Wechsler v. Superior Court (2014) 
    224 Cal.App.4th 384
    , 390–391.) “The
    California Supreme Court has cautioned that a party raising the issue has a heavy burden
    and must ‘ “clearly” ’ establish the appearance of bias.” (Id. at p. 391.)
    13
    supervision. Specifically, the trial court stated, “[t]he reason I don’t believe it is that
    several people have told you – your attorneys, the judges that sentenced you, the judge
    that took the violation of probation, the probation officer himself and herself that spoke to
    you, of all – I mean, you don’t call them without reason and basically you never told
    them, ‘Stop bothering me. I’m not on supervision.’ You never told them that because
    they didn’t say that.”
    1. Forfeiture
    Turning first to whether Garcia has preserved his claim for appellate review,
    Garcia acknowledges forfeiture applies because of his lack of contemporaneous objection
    to the alleged judicial misconduct he now challenges. (See People v. Sturm (2006) 
    37 Cal.4th 1218
    , 1237 (Sturm).) Garcia nevertheless argues his lack of objection should be
    excused because an objection would have been futile given the “record demonstrates a
    pervasive judicial bias by the trial court.” We agree that Garcia’s failure to object to the
    statements in the trial court forfeited this claim for appellate review, and we disagree with
    Garcia’s contention that any exception to forfeiture applies.
    For the reasons we have previously explained, we reject his characterization of the
    record as showing an appearance of bias by the trial court, let alone pervasive bias. (Cf.
    Sturm, supra, 37 Cal.4th at p. 1230 [concluding a trial judge’s comments in front of the
    jury were “sufficiently severe and pervasive”]; id. at p. 1233 [and reversing death
    sentence, where trial judge “belittled defense witnesses on several occasions,”
    “disparaged defense counsel,”]; id. at p. 1235 [and “interposed his own objections to
    questions asked by defense counsel” on numerous occasions].) Accordingly, Garcia has
    not carried his burden of showing that his forfeiture should be excused based on futility.
    2. Ineffective Assistance of Counsel
    Alternatively, Garcia argues that if this court deems his claim to have been
    forfeited, then defense counsel was constitutionally ineffective for failing to object to the
    trial court’s consideration of “inadmissible evidence.” Garcia contends that “[i]t was
    14
    incumbent upon defense counsel to object when the court revealed that it had both
    considered evidence not in the record (judicial advisements) and evidence from a
    confidential Marsden hearing (attorney advisements).”
    We decide that Garcia cannot establish prejudice for any purported deficient
    performance by his counsel. Substantial evidence, apart from the judicial or attorney
    advisements, supports the trial court’s finding that Garcia knew he was on supervision,
    including Officer da Rocha’s testimony. (See part II.A.2., ante.) Additionally, as found
    by the trial court in its pronouncement of its ruling, there was other substantial evidence,
    which Garcia does not dispute, to support its finding that Garcia’s testimony that he did
    not believe he was on supervision was not credible. Specifically, the trial court found
    Garcia had never indicated to the probation officer that Garcia did not believe he was on
    supervision, and Garcia was familiar with the criminal justice system, having previously
    spent time in prison. Accordingly, substantial evidence supports the trial court’s
    conclusion that Garcia’s claim he was released from custody without any form of
    supervision lacked credibility.
    III. DISPOSITION
    The trial court’s August 12, 2019 order is affirmed.
    15
    ______________________________________
    Danner, J.
    WE CONCUR:
    ____________________________________
    Greenwood, P.J.
    ____________________________________
    Grover, J.
    H047402
    People v. Garcia