People v. Dorsett CA2/1 ( 2021 )

Filed 6/25/21 P. v. Dorsett CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B294926
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA062761)
v.
PHILLIP DORSETT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edmund Willcox Clarke, Jr., Judge. Reversed.
Tracy J. Dressner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Susan S. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
A jury convicted Phillip Dorsett of second degree murder and
found true the allegation that he personally used a firearm in the
commission of the offense. The trial court sentenced him to an
aggregate term of 40 years to life in state prison.
On appeal, Dorsett contends the trial court committed judicial
misconduct by repeatedly disparaging defense counsel and
interjecting improper questions and comments to the witnesses in a
manner that deprived him of a fair trial. We agree the trial court’s
conduct rose to the level of judicial misconduct. Finding the error
prejudicial, we reverse the judgment.1
FACTUAL AND PROCEDURAL BACKGROUND
On June 17, 2005, Dorsett shot and killed Jesse Fujino, an
Evil Klan gang member known as “Raton” or “Mousey.” Fujino was
with Abel Soto, another Evil Klan member, and Sergio Soto, a
tagging crew member, when he was shot.
Following an initial jury trial, Dorsett was acquitted of first
degree murder and convicted of second degree murder. On direct
appeal, we reversed the jury’s finding of a gang enhancement,
concluding the evidence was insufficient to support the allegation.
(People v. Dorsett (June 11, 2009, B204123) [nonpub. opn.].) The
conviction was vacated after the Ninth Circuit Court of Appeals
granted Dorsett’s habeas petition due to ineffective assistance of
counsel.2
1 Inlight of our disposition, we do not address Dorsett’s other
contentions.
2 The circuit court concluded that trial counsel erred by
failing to interview Abel Soto, who provided a declaration
corroborating Dorsett’s claim of self-defense. (Dorsett v. Uribe
(Apr. 17, 2015, No. 13-56123) 2015 WL 1742185.)
2
At Dorsett’s second trial, he claimed he shot Fujino in self-
defense. Many of the witnesses had been questioned by police at
least once and previously had testified at the first trial. The retrial
largely focused on discrepancies among the various statements and
testimony provided by the witnesses.
A. Prosecution Evidence
The following individuals were with Dorsett (a.k.a. Chino) at
the time of the shooting: Manuel Corrales, Victor Torres, Augustin
Cortez, Myra Hernandez, Jasmine Hermosillo, and Karina
Hermosillo.3 With the exception of Karina, all of them, including
Dorsett, were members of the Muertos gang.
1. Jasmine’s Testimony
a. Description of the shooting
Jasmine testified that in June 2005, she was 15 years old.
On the evening of June 17, 2005, Jasmine and her 17-year-old
sister, Karina, visited Jasmine’s friend Myra on 95th Street in Los
Angeles. Jasmine and Karina joined Myra outside her apartment
building, where she was drinking with Dorsett, Cortez, Corrales,
and Torres. At some point, the group moved to Dorsett’s blue van
and continued to “hang[ ] out inside the van.”
On our own motion, we take judicial notice of the circuit
court’s decision, and our prior decision from Dorsett’s first appeal.
(Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule
8.1115(b)(1); see Fink v. Shemtov (2010) 180 Cal.App.4th 1160,
1171, 1173 [a court may take judicial notice of prior unpublished
opinions in related appeals on its own motion].)
3 Because the following witnesses share the same last names,
we refer to them by their first names: Jasmine Hermosillo, Karina
Hermosillo, Myra Hernandez, and Dennis Hernandez.
3
While seated inside the van, Jasmine saw a man come from
the direction of Myra’s apartment building and walk behind the
van, where he urinated. The man approached the open sliding door
of the van, and asked, “Where you guys from?” Someone in the van,
possibly Dorsett, replied, “Muertos.” The man said he was from
“EK.” As the man questioned the Muertos group, two men who
appeared to be his friends walked away. The man also walked
away.
At some point, Dorsett exited the van and walked up to the
man who had asked “where are you from” and began to argue with
him. Everyone else got out of the van. Dorsett and the man were
arguing loudly on the sidewalk, standing only inches apart and
facing each other. Jasmine could not recall any of the words they
exchanged, but observed they were angry. The man’s friends were
standing about 40 feet from the van; they did not say anything
while Dorsett and the man argued.
At one point, Jasmine saw Dorsett with a gun; she did not see
anything in the other man’s hands. Dorsett pointed the gun at the
man’s face, close to the man’s head. Jasmine began running toward
Myra’s apartment. While running, Jasmine heard one gunshot and
turned around. She saw Dorsett with the gun and the man down on
the ground. Jasmine then saw Dorsett run to his van and drive off
with Corrales.
b. Jasmine’s statements to police a week after the
shooting
One week after the shooting, the police interviewed Jasmine
at the police station. The investigating officer testified that during
the interview, Jasmine stated that the man who had asked the
group where they were from was “acting tough,” while his two
friends were “mad-dogging” the group and looking “hard” at
everyone. She identified a photograph of Abel Soto as the man she
4
saw urinating behind Dorsett’s van. She told the officer that she
only turned around after hearing a gunshot and that was when she
saw Dorsett with a gun. In response to further questions, she said
she saw Dorsett shoot Fujino one time and saw Fujino fall
backward onto the ground.
2. Karina’s Testimony
a. Trial testimony
In June 2005, Karina was 17 years old. She was not a
member of the Muertos gang.
On the day of the shooting, she was present in Dorsett’s van
when a man walked up and asked, “Where you guys from?” Dorsett
responded, “This is Muertos.” The man identified himself as
“Mousey.” When Mousey approached the van, there were two males
behind him, about eight feet away. All three were “mad dogging”
the group.
Mousey walked to the back of the van and urinated.
Everyone got out of the van, including Dorsett, who “looked mad.”
Dorsett and Mousey walked toward each other and began
arguing “face-to-face.” Dorsett lifted his right hand, which held a
gun, and said “This is Muertos.” Dorsett shot Mousey on the right
side of the head and Mousey fell to the ground. Mousey did not
have a gun; nor did he try to punch Dorsett prior to the gunshot.
Karina heard “[j]ust that one” gunshot and started to run.4 As she
ran she saw Dorsett drive away in his van with the three male
friends.
4 At the preliminary hearing, Karina testified she could not
remember how many shots were fired, but it was more than one and
that she ran after she heard the first shot. At the first trial, Karina
testified she could not recall how many shots were fired.
5
b. Karina’s statements to police
The police interviewed Karina the same day as Jasmine. At
trial, she explained she did not want to be involved so she initially
lied to the officers. During the first interview, she denied seeing the
shooting. During the second interview, she stated she did not see
Dorsett shoot Mousey, but rather she saw Mousey on the ground
after he had been shot.
During the trial, Karina was impeached with her preliminary
hearing testimony, in which she stated she did not look at Dorsett
and Mousey until she heard the first shot.
3. September 2005 Threats and Intimidation
On September 14, 2005, Jasmine went to a motel room, where
she joined Myra, Torres, Corrales, and a Muertos member named
“Psycho.” Psycho asked Jasmine and Myra whether they had
talked to the police. He slapped both of them and threatened to kill
Jasmine with a welding torch. He displayed the lit torch to the
group. Psycho told the women that if he found out they had talked
to the police, he would kill Jasmine’s little sister, who was eight or
nine years old at the time.
At Psycho’s direction, Jasmine called Karina and invited her
to the motel room. When Karina arrived, Psycho made her sit on
the bathroom sink and spread her legs, but she pushed him away
and he stopped. Psycho hit both Myra and Jasmine before letting
Karina and Jasmine leave. Afterward, Jasmine reported Psycho’s
threats to the police and her family was relocated.
4. Torres’ Testimony
a. Trial testimony
Torres testified under a grant of immunity. He conceded he
had prior felony convictions for domestic violence, assault with a
deadly weapon, and possession of firearms and ammunition.
6
On the day of the shooting, while Torres and a group of
friends were hanging out in Dorsett’s van, someone approached the
van and some words were exchanged. As Torres began to leave, he
heard the man ask, “Where you from?”
As Torres walked in search of a liquor store, he heard
multiple popping noises. When he returned to the location where
the van had been parked, he did not see the van or Dorsett.
b. Torres’ police interview
Officers interviewed Torres in September 2005. A recording
of the interview was played for the jury. During the interview,
Torres said that when he left to look for a liquor store, he heard one
popping noise.
5. Additional Evidence
a. Police investigation
Officers learned that Abel Soto and Sergio Soto5 brought
Fujino to the hospital in a red Thunderbird around 9:30 p.m. Abel
was an Evil Klan gang member and Sergio was a member of a
tagging crew called Mexicans Kicking Ass.
Fujino died from a gunshot wound that pierced the edge of his
left eye. A bullet recovered during the autopsy was most consistent
with a .380 cartridge used in a semi-automatic gun with a three- to
four-inch barrel. The medical examiner estimated the barrel was
about 12 inches away from Fujino when the weapon was fired.
b. Search of Dorsett’s home
Dorsett was arrested on September 9, 2005. On
September 13, 2005, police searched his home in Rancho Palos
Verdes. They found a visa for Mexico in Dorsett’s name in a
bedroom closet and Dorsett’s passport on a shelf in the bedroom.
5 The two Sotos were not related.
7
c. Gang expert’s testimony
Detective Michael Valento testified as a gang expert. He
knew Jesse Fujino as a member of Evil Klan.
The area where the shooting took place was claimed by the
Crazy Riders gang, while the Evil Klan claimed nearby streets.
Detective Valento was not aware of any rivalry between the Evil
Klan and the Muertos gang. In 2005, Evil Klan members were
known to go outside their territory and shoot at other gang
members. The same was true for the Muertos gang. Detective
Valento acknowledged it was “a fair assumption” that a gang
member going into unknown or rival territory would be armed.
B. Defense Evidence
1. Evidence of Multiple Shots Fired
On the evening of June 17, 2005, several residents in the area
of the shooting described hearing sounds similar to gunshots.
At around 10:00 p.m., Nicole Davis heard “more than one”
sound—a series of “consecutive pop[s]” that sounded like gunshots.
Chuckie Armstrong heard two shots, one after the other, that each
sounded different from the other. He was certain the second sound
was not an echo of the first shot. Monica Ruiz heard three “loud
blasts.” Jesus Escobar heard “two loud booms.” Alyce Oliver heard
three gunshots.
Dennis Hernandez, Myra’s brother-in law, testified that he
was at the apartment he shared with Myra when he heard four or
five gunshots.6 The shots were fired consecutively and sounded
different from one another. When questioned on the night of the
shooting, Dennis told the police that he heard more than one shot
that night.
6 At the time of the retrial, Dennis was in state custody
following convictions for kidnapping and robbery.
8
Agustin Cortez testified he exchanged words with the man
who urinated on the van, and then left to use the bathroom in
Myra’s apartment. While Cortez was inside, he heard multiple
gunshots. Cortez also told police in September 2005 that he heard
more than one shot.
2. Evidence of the Victim’s Propensity for Violence
On March 7, 2001, the police interviewed Jesse Fujino while
investigating an assault. Fujino, who was 15 years old at the time,
told officers that while he was on his way to a liquor store, he had
an altercation with a rival gang member. The gang member threw
a soda at Fujino’s car, and another male threw a wrench at Fujino’s
car, shattering the windshield. Fujino and three fellow gang
members returned to the location of the altercation. While Fujino
acted as a lookout, two of his companions walked to the street. One
shot was fired, and they ran back to the car and left.
The 2001 shooting took place eight or nine blocks from the
location of the instant shooting in 2005.
3. Dorsett’s Testimony
Dorsett testified that in June 2005, he was 19 years old and
lived in Perris. He was a member of the Muertos gang and
occasionally hung out with other gang members when he was in Los
Angeles. He carried a gun for his protection and safety.
On June 17, 2005, Dorsett borrowed his father’s van. He put
his loaded .380 semi-automatic gun under the back seat of the van.
He picked up Corrales, Torres, Cortez, and Cortez’s cousin and
drove to Myra’s apartment on 95th Street.
At 8:00 or 8:30 p.m., the group gathered inside Dorsett’s van.
At some point a man urinated between the van and a Thunderbird
that was parked behind the van. About 10 to 20 minutes later,
another man, who Dorsett later learned was Fujino, pulled open the
sliding door of the van and aggressively screamed, “Where you
9
vatos from?” Dorsett understood the question to be a gang
challenge. Fujino’s actions suggested to Dorsett that he was armed.
After Fujino issued the gang challenge a second time, either
Corrales or Cortez replied, “Muertos.” Fujino walked away and
stood next to the Thunderbird.
Dorsett stayed in the van. During an argument between
Dorsett and Myra, Dorsett saw Myra’s brother, Dennis, exit the
apartment building and meet with Fujino and two men in front of
Myra’s apartment building. Myra told Dorsett that the men were
Dennis’ friends. Dorsett felt that eliminated any threat and that
things had de-escalated. About 15 to 20 minutes later, Cortez left
to use the bathroom and Dorsett ordered everyone else out of the
van so he could go home.
Dorsett got out of the van last. He did not want to stay, but
felt uncomfortable leaving Corrales with the others. As the others
walked toward Myra’s apartment, Dorsett took his gun out from
under the seat before leaving the van.
As he started to walk toward Myra’s apartment, Fujino and
his two friends took a position “almost right in front of [his] path.”
Fujino said, “Hey sucka, do you know where you’re at?” Dorsett put
up his hands and replied, “Chill, I’m not from around here.” Fujino
responded, “I asked you if you know where the fuck you’re at?”
Dorsett was scared. No one else was on the street; his friends
had gone back to Myra’s apartment. The two men with Fujino were
flanking him, and he felt boxed in. When Dorsett said, “Ain’t this
Crazy Riders,” Fujino ran up to Dorsett’s face while the other two
men “mad-dogg[ed]” Dorsett “in an aggressive posture.” Fujino
yelled that they were in Evil Klan territory and “Fuck Crazy
Riders.”
Fujino “reach[ed] to the back of his waistband” and pulled out
a firearm. At the same time, Dorsett grabbed his gun from inside
10
his belt. Dorsett hit Fujino’s gun hand with his left hand and fired
his gun with his right hand. Fujino’s gun fired as Dorsett knocked
Fujino’s hand. After Dorsett fired his gun, he quickly turned
around, returned to the van, and left.
Three days later, Dorsett’s father told him people had twice
come to his house looking for him. Dorsett told his father that
somebody had tried to kill him and he had shot the person. His
father drove him to Mexico, where he stayed for about a month.
Dorsett was arrested on September 9, 2005.
4. Testimony of Defense Gang Expert
Martin Flores testified as a gang expert for the defense. He
explained that there is an expectation among gang members that if
one member is involved in a confrontation, his fellow gang members
will back him up. A small disrespect can make a gang member
angry and cause him to respond. The challenge “Where you from”
can be confrontational, but demanding “Do you know where the
fuck you’re at” is an even bolder challenge.
C. Jury Verdict
On January 11, 2018, following a second jury trial, Dorsett
was convicted of second degree murder. The jury found that he
used a firearm in the commission of the offense pursuant to Penal
Code section 12022.53, subdivision (d).7 The trial court sentenced
him to state prison for an aggregate term of 40 years to life,
consisting of 15 years to life for the second degree murder, plus 25
years to life for the gun use enhancement.
7All further statutory references are to the Penal Code unless
otherwise indicated.
11
DISCUSSION
Dorsett contends the trial judge committed prejudicial judicial
misconduct by engaging in a pattern of conduct wherein he
disparaged defense counsel and questioned witnesses in a manner
that created a hostile atmosphere for the defense. Respondent
counters that the majority of Dorsett’s challenges are forfeited by
his failure to raise a timely objection, that the trial judge properly
exercised his discretion to control the courtroom proceedings and
question witnesses, and that any error was harmless in light of the
strength of the evidence. After reviewing the record, we conclude
the trial court engaged in judicial misconduct that, when viewed in
the aggregate, rendered the trial fundamentally unfair.
A. Governing Legal Principles
“We review claims of judicial misconduct under the de novo
standard and on the basis of the entire record.” (People v. Williams
(2021) 60 Cal.App.5th 191, 202; see also People v. Peoples (2016) 62
Cal.4th 718, 789.)
“ ‘ “Although the trial court has both the [statutory] duty and
the discretion to control the conduct of the trial [citation], the court
‘commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the
defense or create the impression it is allying itself with the
prosecution’ . . . .” ’ [Citation.]” (People v. Nieves (2021) 11 Cal.5th
404, 477 (Nieves); People v. Sturm (2006) 37 Cal.4th 1218, 1233
(Sturm).) This is because “[j]urors rely with great confidence on the
fairness of judges, and upon the correctness of their views expressed
during trials.” (Sturm, supra, at p. 1233.) As such, their comments
“ ‘ “must be accurate, temperate, nonargumentative, and
scrupulously fair.” ’ ” (Nieves, supra, at p. 477, quoting Sturm,
supra, at p. 1232.)
12
Nevertheless, “ ‘[o]ur role . . . is not to determine whether . . .
some comments would have been better left unsaid.’ ” (People v.
Snow (2003) 30 Cal.4th 43, 78.) Instead, “ ‘we must determine
whether the judge’s behavior was so prejudicial that it denied [the
defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (Ibid.)
We make that determination on a case-by-case basis, examining the
context of the court’s comments and the circumstances under which
they occurred. (People v. Cash (2002) 28 Cal.4th 703, 730; People v.
Melton (1988) 44 Cal.3d 713, 735.)
In his opening brief, Dorsett identifies numerous incidents in
support of his judicial misconduct claim. These incidents are set
forth below, numbered sequentially and placed under two separate
headings: (1) treatment of defense counsel; and (2) treatment of
witnesses. We address only those incidents that took place while
the jury was present.8
B. Treatment of Defense Counsel
1. Factual Background
The trial court directed many comments at defense counsel
that were critical of counsel’s trial skills and acumen. We recount
the most troubling comments in chronological order as they
occurred at trial. We note that “[n]ot every example amounts to
misconduct independently, nor does each necessarily involve an
8 While Dorsett also challenges a series of discussions that
occurred outside the jury’s presence, we omit them from our
discussion as they could not have resulted in prejudice. (See People
v. Silveria and Travis (2020) 10 Cal.5th 195, 319-325 [noting that
because the challenged colloquies were not made in the presence of
the jury, they could not have prejudiced the jury’s view of the
defendants]; see also Nieves, supra, 11 Cal.5th at pp. 495-497
[events that took place outside the presence of the jury could not
form the basis for judicial misconduct].)
13
erroneous legal ruling. But together they tend to illustrate the
demeaning, patronizing attitude displayed by the judge toward
[counsel] before the jury.” (People v. Fatone (1985) 165 Cal.App.3d
1164, 1176.)
No. 1
While defense counsel was cross-examining Jasmine, the
court admonished him, “Let’s have straightforward questions, don’t
put arguments in there, or I will start sustaining my own
objections.”
No. 2
When defense counsel asked Jasmine whether she called the
police during the seven days after the shooting, the court stepped in
and said, “We don’t need this, [counsel]. We know . . . [t]he jury can
count. It’s seven days. . . . I don’t know why you need to do this,
‘seven days, and you didn’t call,’ and—it just wastes time. . . . You
have to stop doing it. You’re wasting time. Trust the jury to
understand your point, without making them three or four times.”
No. 3
When defense counsel posed a question to Jasmine that began
with the phrase “we now have established,” the court interrupted
and admonished, “Don’t say what ‘we have established.’ I don’t
know who ‘we’ are. ‘We’ is an undefined term. You shouldn’t speak
of ‘we.’ ” The court reiterated the point when counsel used the term
“we” again, stating, “Do you want to take the word ‘we’ out of your
question and ask it,” and “ ‘We’ don’t know anything. . . . I know a
lot of things. You know a lot of things. Together we know nothing.
Please don’t use that phrase.” When counsel later began a question
with the phrase, “And we can assume,” the court interrupted and
said, “We can’t assume . . . so we’re . . . not going to talk about that.”
14
No. 4
Defense counsel asked Jasmine whether she remembered
being asked a question earlier in the trial. The court admonished
counsel as follows: “So please don’t ask, ‘Do you remember what
you were asked earlier today,’ unless it’s really important. . . .
What I would like for you to do is ask straightforward questions. I
mentioned outside the presence of the jury already that asking
witnesses do they remember is a very weak form of questioning. I
told you both that. I’ve heard it from both of you. So now in front of
the jury I’m telling them that. ‘Do you remember’ is rarely the
correct question. Just ask a fact: . . . It’s not, ‘Do you remember
saying.’ Try to avoid that, both of you.”
No. 5
The court interrupted counsel to admonish him to stop asking
Jasmine about testifying under oath: “So [counsel], when she
testifies in court, she’s under oath. You’ve said it about six times in
the last two questions. The jury knows that. So she testified in
June of 2006 under oath. She testified in 2007 in court under oath.
I don’t think the “under oath” needs to be repeated over and over. I
think it becomes argumentative. I think the jury gets the point.
Please leave it out of your questions, if you can.”
The court again interrupted counsel when he sought to ask
Jasmine whether Dorsett made any statements expressing an
intention to harm anyone prior to exiting the van, stating,
“[Counsel], we have covered this.” Counsel responded that he did
not think it had been covered, but he would move on. The court
continued: “The time limit that I’m going to impose will be strict,
especially if you keep repeating. Yes, this has been asked of both
the Hermosillo sisters more than once.”
15
No. 6
While cross-examining Karina, defense counsel elicited
testimony that she could hear Dorsett and Fujino screaming, but
could not make out any of the words being said. She further
testified her view of Fujino was blocked by Dorsett. Defense
counsel asked, “So assume the other person is saying something
violent or aggressive. You could not see his face to determine that;
is that correct?” The court interjected: “[Counsel], why would you
give a hypothetical like that? . . . If she can’t hear anything, if he
was singing Christmas carols, if he was making a threat, if he was
stating the pledge of allegiance—if you can’t hear, you can’t hear.
So don’t try to load the question in that way, please. It’s
argumentative.”
When defense counsel stated he wasn’t trying to load the
question, the court responded, “It’s argumentative, and you know it
is. Don’t quarrel with me, please.”
No. 7
During cross-examination of Karina, defense counsel asked,
“Isn’t it true that you only saw Mr. Fujino after you heard a
gunshot or gunshots and he was already on the ground? Is that
correct?” The court noted the question was inconsistent with
testimony that Karina had seen Fujino earlier in the evening, and
stated, “So if that’s what you are really asking here, she didn’t see
the man, didn’t hear him, didn’t see anyone until he was on the
ground, I don’t see how this advances the jurors’ vast
understanding of the case. So ask that hypothetical version of the
facts.”
After counsel read a portion of the preliminary hearing
transcript and asked Karina if she had “testif[ied] like that,” the
court said, “So, [counsel], it’s in the preliminary hearing transcript.
16
She’s under oath. ‘Did you testify like that’ is not a complete waste
of time, but is close to that.”
After defense counsel read another preliminary hearing
passage, he noted that the preliminary hearing was a year after the
shooting and asked Karina if she “remember[ed] coming to court
and testifying?” The trial court commented that “[w]e don’t need all
the buildup,” questioned the relevance of the query, and observed
that “she’s not denying testimony that has been read” and thus “we
can safely conclude she did remember coming to court.”
When counsel was cross-examining Karina about her prior
testimony, the court interrupted and told the jury: “Ladies and
gentlemen, if that sounds familiar, that was read to you already. So
you now have a transcript reading a transcript. And if somebody
were to appeal this case, they would have a transcript of a
transcript of a transcript. I’m going to ask the lawyers not to do
that, not to reread things that have been included in other
passages. That is not helpful. Are we finished with this witness?”
No. 8
During defense counsel’s cross-examination of an officer who
responded to the scene, the prosecutor objected to counsel reading a
statement from a document (“four shots heard, nothing seen”) on
hearsay grounds. The court agreed and stated, “Yes. Disregard
that, ladies and gentlemen. It’s not an appropriate use of this
document.”
At another point, counsel asked the officer if it was “not
uncommon for gang members to take weapons from a crime scene.”
After the court sustained the prosecutor’s objection, the court
criticized counsel for trying to argue his case through his
questioning: “And now you’ve confirmed for me that you’re arguing,
in your question—it’s an argumentative phrasing of the question.
At the end of the case, of course, you’ll be able to argue what the
17
evidence has shown, but you shouldn’t be presenting your argument
early to witnesses and having them adopt it.”
No. 9
During cross-examination of Detective Valento, defense
counsel asked, “Clearly, based on the police reports, at least five to
six different people said they heard multiple gunshots?” Following
the prosecutor’s hearsay objection, the court admonished counsel:
“All right. That’s improper. Ladies and gentlemen, that’s the kind
of question a lawyer shouldn’t ask. He’s trying to get something out
of a report into a question, before there could be an objection, before
the witness can answer. [Counsel], you know better. Don’t do that
again.”
After counsel denied this was his intent, and in front of the
jury, the court responded, “I don’t care if it was your intent. You
did it. Don’t do it again. You’ll be found in contempt of court if you
do something like that again. Next question please.” When counsel
asked to approach the bench, the court refused, stating, “No, you
may not approach. When you ask a question, you shouldn’t include
something that you know will be objectionable. That’s been a
contested issue throughout this trial. It’s not a surprise. You’re not
fooling me. Now go ahead with the next question.”
Within a page of transcript, while the jury was still present,
defense counsel asked again to approach. The court again refused:
“Continue with your questioning. If I hear an objection, I will rule
on it. If I think you’re crossing a line, I will stop you myself. Go
ahead.” The court subsequently commented, “The trial, as you’ve
probably noticed, is taking longer than it should. So if we spend
half of our life at the sidebar, it will be in February before [we]
finish this case. So, yes, there are purposes for sidebar, but it’s not
to pretest questions or to explain things. I’ll rule on these as they
come up.”
18
No. 10
During cross-examination of Detective Valento, defense
counsel confirmed that Jasmine identified Abel Soto, through a
photograph, as the person who urinated behind the van. After
counsel asked the detective where he obtained the photograph, the
court asked, “[Counsel], why would that be relevant?” After counsel
responded that he “just want[ed] to know the time period,” the court
said, “That you just want to know is fascinating to me, but it’s not
relevant. What I want to know is not relevant either. What the
jury needs to know is what’s relevant. What they don’t need to
know is not relevant. So where he got the picture, at least right
now, doesn’t seem to be relevant.”
When defense counsel subsequently asked the detective
whether one gang member will “help and assist” another gang
member, the court interjected, “Do you want to give us a little
focus? Is that putting up Christmas lights? Is it committing a
crime? Is it helping them after they’re hurt? What do you mean . . .
‘help and assist?’ ”
No. 11: Defense Counsel’s Objection and Mistrial Motion
After the last few exchanges, the court recessed for the day
and outside the jury’s presence, stated the following: “Now,
[defense counsel], I got the sense at sidebar that you wanted to
explain something to me about how you tried to run that question
by, about all the people that told the police about all the shots they
heard and whether there is something about it in a report. So
something existing in a report does not make it admissible.”
After further discussion on the point, the court warned
defense counsel: “I’m telling you that, if you do something like that
again, take something that, in my view, is clearly hearsay, load it
into a question in hopes that the jury hears about it, then I will fine
19
you for it. I will find you in contempt and fine you money for it. I
don’t know another way to stop it. I’d rather do that than admonish
you in front of the jury, but I’ll do that, too, if this continues to
happen.”
Counsel objected that the court already had admonished him
in front of the jury instead of waiting for a break in the trial.
Counsel expressed concern about the prejudicial spill-over effect on
Dorsett from the court’s treatment of him.
The court rejected counsel’s characterization and threatened
to sanction him if he found counsel “running hearsay into your
questions like that.” The next morning counsel moved for a
mistrial. The court denied the motion.
No. 12
During his re-direct examination of the defense gang expert,
defense counsel asked, “Based on the information that was provided
to you and questioning by both lawyers, is it reasonable to believe
that Mr. Fujino, the person who was shot, was probably
armed . . . [?]” The prosecutor objected, and the trial court stated,
“You do not ask that. Please do not ask that again. I’ve told you it’s
not an appropriate question.” When defense counsel responded,
“This is your jury instruction, I thought. Maybe I’m wrong,” the
court said, “You’re wrong. All right? I will instruct the jury at the
end of the case, and their decision will be whether there’s any such
evidence. This is not for [the witness] to comment on.”
No. 13
In examining a gang investigator about Fujino’s involvement
in the 2001 shooting, defense counsel asked, “Did you ever tell—or
if the right word’s ‘challenge’ Mr. Fujino, when you were speaking
to him outside, that you had information that --.” The trial court
interjected, “I think the information he had is likely hearsay. I
20
think to pose it in a question could be very problematic.” Defense
counsel stated he would rephrase the question and asked, “Did you
tell or ask Mr. Fujino that he was the shooter of this particular
incident?” The prosecutor objected on hearsay grounds, and the
trial court asked, “So [defense counsel], do you have reason to
believe the detective, who wasn’t there to see it, would have told
Mr. Fujino that he was the shooter?” Counsel responded that “[t]he
detective’s report says that.” The prosecutor objected again, and
the court told the jury, “Ladies and gentlemen, this is not an
appropriate way to introduce evidence before a jury.” After counsel
protested that he was simply answering the court’s question, the
court responded, “[A]re you really having trouble understanding
this hearsay issue . . . again? Because really what’s in the report
should not be in your questions. And I’ll look at the report and find
out what has caused you to ask this question.” After the court
reviewed the pertinent part of the report, the court said, “This is not
admissible evidence that you’re alluding to.”
2. The Trial Court Engaged In Judicial Misconduct By
Disparaging Defense Counsel
As an initial matter, we address respondent’s contention that
Dorsett forfeited his claims of judicial misconduct by failing to make
an appropriate objection following each challenged incident. As a
general rule, judicial misconduct claims are not preserved for
appellate review if no objections thereto were made at trial, unless
an objection would have been futile or an admonition could not have
cured any prejudice caused by such misconduct. (Sturm, supra, 37
Cal.4th at p. 1237.)
Dorsett’s counsel objected to the trial court’s comments and
moved for a mistrial based on the court’s treatment of counsel in
front of the jury. In addition, as we discuss below, counsel moved a
second time for a mistrial based on the manner in which the court
21
questioned a defense witness (see Discussion, section C,1, No. 16,
post). In light of the number of times the court rebuked counsel,
and the discord between the court and counsel, it would be “ ‘unfair
to require defense counsel to choose between repeatedly provoking
the trial judge . . . or, alternatively, giving up his client’s ability to
argue misconduct on appeal.’ ” (Nieves, supra, 11 Cal.5th at p. 482,
fn. 12; Sturm, supra, 37 Cal.4th at p. 1237.) As such we find no
forfeiture here.
We next conclude the trial court’s persistent and discourteous
commentary constituted misconduct. (Nieves, supra, 11 Cal.4th at
pp. 477-478; Sturm, supra, 37 Cal.4th at pp. 1238 & 1240.) As
noted by our high court, “ ‘It is completely improper for a judge to
advise the jury of negative personal views concerning the
competence, honesty, or ethics of the attorneys in a trial,’ ” because
“ ‘it is not the lawyer who pays the price, but the client.’ ” (Sturm,
supra, at p. 1240, quoting People v. Fatone, supra, 165 Cal.App.3d
at pp. 1174-1175.) “This principle holds true in instances involving
a trial judge’s negative reaction to a particular question asked by
defense counsel regardless of whether the judge’s ruling . . . was
correct . . . .” (Sturm, supra, at p. 1240; see Nieves, supra, 11
Cal.5th at p. 484 [reiterating same]; see also People v. Black (1957)
150 Cal.App.2d 494, 499 [“though counsel’s line of inquiry was
objectionable, and the evidentiary ruling essentially proper, the
judge’s remarks accusing counsel of unfairness constituted
misconduct”].)
Here, the trial judge made numerous comments in front of the
jury that (a) disparaged counsel and demeaned his trial skills
(Nos. 1, 2, 3, 4, 6, 10), (b) portrayed him as wasting the jury’s time
(Nos. 2, 5, 7, 9), (c) insinuated he was deliberately misleading the
jury by asking improper questions (Nos. 6, 8, 9, 12, 13), and
(d) accused him of engaging in unlawful conduct that could subject
22
him to contempt proceedings (No. 9). As in Nieves, the trial court’s
“stern remarks and periodic sarcasm . . . impugned counsel’s
competence and ‘inevitably conveyed to the jury the message that
the trial court thought that defense counsel was wasting . . . time by
asking inappropriate questions.’ [Citation.]” (Nieves, supra, 11
Cal.5th at p. 483.) In particular, “[t]he trial court’s comments
implying that defense counsel was behaving unethically or in an
underhanded fashion constitute[s] misconduct.” (Sturm, supra, 37
Cal.4th at pp. 1240-1241.)
In Sturm, the California Supreme Court concluded the trial
court’s numerous “sua sponte interruptions tended to be negative
and disparaging.” (Sturm, supra, 37 Cal.4th at p. 1241, fn. 3.) A
few of the examples the court cited as reflective of this pattern are
as follows:
• “ ‘Come on . . . [defense counsel], please. I don’t like to
interrupt. You know, there is no way you can get that in.
You’ve been around enough and I don't want to chastise you
in front of the jury but we have just gone through, you want
to relate what her sons thought . . . . And we are here and
holding the jury over late . . . . And clearly you know these
questions are objectionable. Why ask them?’ ” (Sturm, supra,37 Cal.4th at pp. 1234-1235.)
• “ ‘[Y]ou are not grasping my ruling, I don’t believe. I can tell
this is going nowhere.’ ” (Sturm, supra, 37 Cal.4th at
p. 1235.)
• “ ‘No, no, no. We are back to the same question number one
again. I rule, I rule and then you go back and ask the
question just a little bit different, trying to sneak it by. Is that
the particular word I should use? Again, [defense counsel],
please . . . . So again, admonish the jury that [defense
counsel’s] questions are not evidence, as much as he would
23
like them to be evidence.” (Sturm, supra, 37 Cal.4th at p.
1235.)
In Nieves, the objectionable remarks referenced by our high
court included the following:
• “ ‘Why don’t you just ask a simple question?’ ‘[D]on’t talk,
except to ask a question’; ‘You don’t listen do you?’; ‘Stop
saying “ah” every time you get an answer’; ‘Don’t say “okay”
anymore’; ‘Just ask the question in a proper way’; and ‘What
does it take to get the point that you can’t talk at the same
time [as the witness]?’ ” (Nieves, supra, 11 Cal.5th at p. 479.)
• “ ‘[Y]ou are using valuable court time for something that
doesn’t need to be used’; responding to counsel’s question
about an exhibit number by stating, ‘Look at the tag on the
front; it might give you clue’; responding to counsel’s question
that began ‘I appreciate the fact that . . .’ with, ‘[w]hat your
appreciation level is, is not pertinent or helpful’; . . . [and]
characterizing counsel’s [question as a] ‘ridiculous question’
. . . appropriate only for ‘comic books or the movies.’ ” (Nieves,
supra, 11 Cal.5th at p. 479.)
The trial judge’s comments during Dorsett’s trial are
remarkably similar in both substance and tone to those cited in
Sturm and Nieves. This repeated and improper disparagement of
defense counsel discredited the defense and constitutes judicial
misconduct. (Nieves, supra, 11 Cal.5th at p. 477; Sturm, supra, 37
Cal.4th at p. 1240.)
In addition, the unequal treatment of counsel can be
indicative of judicial misconduct. (Sturm, supra, 37 Cal.4th at
p. 1241 [observing that “[t]he trial judge’s negative remarks about
defense counsel are also troubling in light of the unequal treatment
by the court of the prosecutor and defense counsel,” which “created
the impression that the trial judge was allied with the
24
prosecution”].) We agree with Dorsett’s assessment that “while the
court did admonish the prosecutor on occasion, those
admonishments were brief and mild, unlike the court’s repeated,
and often sarcastic, admonishments to [defense] counsel.”9
Respondent does not dispute Dorsett’s assessment of the
court’s unequal treatment and instead argues that each challenged
instance is a reflection of the trial court’s right to control the
courtroom proceedings. We disagree. The comments “were not
‘relatively brief and mild’ references” or mere “showings of
‘occasional impatience,’ ” “but ‘persistent, discourteous, and
improper remarks that amounted to misconduct.’ ” (Nieves, supra,
11 Cal.5th at p. 485; Sturm, supra, 37 Cal.4th at pp. 1233, 1238,
1241; see also People v. Fatone, supra, 165 Cal.App.3d at p. 1176
[examining the trial judge’s comments for their cumulative effect].)
C. Treatment of Witnesses
Dorsett contends the trial court committed misconduct by
frequently interrupting the proceedings to ask questions or make
comments that “highlighted testimony that helped the prosecutor or
harmed the defense.” Dorsett identifies numerous examples as
supportive of his claim. We reference only the most problematic
colloquies below.
9 Our reading of the record reflects that the court’s remarks to
the prosecutor were generally mild—and more likely to follow an
objection by defense counsel rather than a sua sponte interruption
by the court.
25
1. Factual Background
No. 14
When the prosecutor asked Torres whether he wanted to
testify, defense counsel objected, “Asked and answered.” The court
stated:
“The Court: Many of us don’t want to be here, we’d rather be
other places, so that’s not the issue. Is this something you would
rather not do? Even if the date was convenient, et cetera, testifying
in this case is something that you would rather not do if you had a
choice?
“The Witness: Would rather be—I would rather be elsewhere.
“The Court: And you’d rather not testify—you don’t have a
choice, by the way, but if you had a choice, you would say, ‘I don’t
want to testify.’ Is that right?
“The Witness: Right.
“The Court: Go ahead.”
No. 15
The defense called Lorena Fernandez, a Muertos gang
member, in an effort to impeach the credibility of Jasmine and
Karina by inferring they were friendly with Fujino and therefore
were biased. At one point, Fernandez testified that prior to June
2005, she had seen Fujino once at Myra’s apartment while Karina
and Jasmine were present. She had no recollection of the time-
frame of this occurrence.
During cross-examination, the following exchange ensued:
“[The Prosecutor]: What does Mr. Fujino look like?
“[The Witness]: He’s Hispanic. Tattoos.
“[The Prosecutor]: Where are his tattoos?
“[The Witness]: He had a lot.
“[The Prosecutor]: He had a lot of tattoos?
26
“[The Witness]: Yes.
“[The Prosecutor]: Really? Describe them to me.
“[Defense Counsel]: Objection to the ‘really.’
“[The Court]: No editorial comment. She wants you to
describe a lot of tattoos that you saw.
“[The Witness]: I don’t—
“[The Court]: So give a location, to start. Any on the face?
“[The Witness]: I don’t recall.
“[The Court]: Arms?
“[The Witness]: I don’t remember his tattoos. Sorry.
“[The Court]: Legs?
“[The Witness]: I don’t remember his tattoos.
“[The Court]: Shoulders?
“[The Witness]: I don’t remember.
“[The Court]: Chest?
“[The Witness]: I don’t remember the tattoos.
“[The Court]: Back? Did you kind of make that answer up
about the tattoos?
“[The Witness]: No.
“[The Court]: You saw them?
“[The Witness]: Yeah, but I don’t remember what they were
of.
“[The Court]: Not what they were of, just where they were.
Just think for a moment, picture this man you remember, and tell
us where you remember seeing the tattoos.
“[The Witness]: I’m sorry. I don’t remember.
“[The Court]: You’re still sure that you saw some?
“[The Witness]: Yes.
“[The Court]: And if he didn’t have any tattoos, are you
remembering a different person then?
“[The Witness]: No.
27
“[The Court]: I’m not sure if you’re more sure of the tattoos or
the man.
“[The Witness]: Yeah, I don’t remember his tattoos, exactly
where they were.
“[The Court]: Was this outside at a table or was it inside the
apartment?
“[The Witness]: Outside in the back apartment.
“[The Court]: So back of the apartment at a table?
“[The Witness]: Yes.
“[The Court]: A man with tattoos that you know was Mr.
Fujino?
“[The Witness]: There was multiple men there and—
“[The Court]: Did they all have tattoos?
“[The Witness]: Some of them did.
“[The Court]: And the one that you think is Mr. Fujino, you’re
sure that he had tattoos?
“[The Witness]: I believe so, yes.
“[The Court]: So just describe one for us.
“[The Witness]: I don’t remember any tattoos. I’m sorry. I’m
sorry. I don’t remember the tattoos.
“[The Court]: You’re so sorry?
“[The Witness]: Yeah. I don’t remember.”10 (Italics added.)
No. 16: Motion for Mistrial
After Fernandez completed her testimony, defense counsel
stated that “some of the court’s comments with Ms. Fernandez in
front of the jury were inappropriate.” The court asked for an
example, and counsel noted the court had suggested the witness
10According to the medical examiner, Fujino had one tattoo
on the back of his upper right arm.
28
was not credible. The court stated credibility was a matter for the
jury, and that if counsel wanted to point out a specific statement
the court made, and the court agreed it was a problem, it would
instruct the jury to disregard it.
The next day, defense counsel read the court excerpts from its
questioning of Fernandez, including the court’s query as to whether
Fernandez “just kind of ma[d]e that answer up about the tattoos.”
The court responded, “That was a question, not a statement to the
jury,” and remarked, “[i]t seems that the defense would prefer a
free-for-all, maybe a mistrial, maybe to build in [ineffective
assistance of counsel].” Defense counsel asserted that an
admonition would not cure the prejudice created by the impression
that Fernandez was not telling the truth, and requested a mistrial.
The court denied the motion stating, “I will tell [the jury] not to
consider any opinion of mine as indicative of what I think about the
case or what the verdict should be. But it’s hard for me to sit by
and wonder whether someone is suborning perjury and ask no
questions.”
No. 17
On cross-examination, the prosecutor asked defense gang
expert, Martin Flores, “[J]ust because someone says, ‘where you
from[ ]’ doesn’t always mean it’s a challenge[,] is that correct?” The
expert responded that “these are not just . . . yes-or-no answers.”
The court stepped in and the following exchange ensued:
“The Court: Mr. Flores, I think that one’s a ‘Yes’ or ‘No.’
She’s saying it’s not necessarily a challenge. . . . ‘Necessarily’ would
mean every single time it’s a challenge. If it’s not a challenge two
times out of ten, five times out of ten, nine times out of ten, then it’s
not necessarily a challenge. So you can handle that with a ‘yes’ or
‘no.’
“The Witness: Your Honor, respectfully, I would say—
29
“The Court: So ‘respectfully’ is what lawyers usually say
before they say something that I don’t like. I’m going to encourage
you not to do that. Now, when the jury is instructed at the end of the
case, they’ll be told that witnesses who answer directly get a certain
level of credibility. People who don’t get less[, a]nd I would hate to
see you, in the process of trying to be too fine with your answers,
appear to be avoiding things. So wouldn’t you agree that it doesn’t
necessarily have to be a challenge, when you walk up and say,
‘Where you from?’
“The Witness: I would agree, if an everyday person asked
that question, then, sure, it doesn’t necessarily mean a challenge.
“The Court: Many times it is, but not every time?
“The Witness: For a non-gang member to ask that question,
sure, it’s not necessarily a challenge.
“The Court: Well, even for a gang member who walked up
and asked that, it isn’t necessarily a challenge, is it? What if I’m in
such a big gang that I don’t even know if you’re in my gang, and I’m
just asking—
“The Witness: That’s correct, your honor.
“The Court: —And I’m just asking. And you’ll say the same
gang that I’m in, and I’ll say ‘Great. Do you know so-and-so?’
Suddenly we’re close friends, that’s not necessarily a challenge.
“The Witness: That is correct, your honor. That is a good
example where that is correct.
“The Court: And sadly enough, there are some gangs that are
so big and successful that they don’t even know their fellow
members. True?
“The Witness: That is correct.
“The Court: Go ahead, please.” (Italics added.)
30
No. 18
As discussed above, defense counsel asked the gang
investigator whether he asked or told Fujino that he was suspected
of being the shooter in the 2001 incident. The court indicated the
question sought to elicit hearsay, and asked to review the police
report that supported the inference that the detective identified
Fujino as the shooter. The court then asked the following
questions:
“The Court: So, detective, do you sometimes give people
information that exaggerates what you know, hoping that they will
then admit to it because it’s true?
“The Witness: Yes, sir.
“The Court: So if you went to your car—I assume you drove a
car here today—and found that your radio had been stolen and you
suspected I had stolen it, you might say, even though it wasn’t true,
‘we have information that you’re the person that stole this from the
car,’ hoping that I would say, ‘All right. You got me. I’m the one
who took it.’ That’s an acceptable tactic[,] correct?
“The Witness: Correct.
“The Court: Even if what you’re telling me is not true, that
you don’t have the information?
“The Witness: Correct, yes.
“The Court: So you would then write that report in your
report by saying ‘I told the suspect we had information?’
“The Witness: I would.
“The Court: All Right. And that’s what we’re looking at here,
isn’t it?
“The Witness. Yes, sir.
“The Court: It’s a bluff[,] right?
“The Witness. A ruse, yes.
“The Court: A ruse or a bluff. Go ahead [defense counsel]. . . .
31
“[Defense counsel]: Based on that topic, is that what occurred
on the day and time in question that you spoke to Mr. Fujino, that
in order to get him to speak with you, you did this bluff?
“[The Witness]: Yes.
“[Defense counsel]: And you recall that specifically?
“[The witness]: I do.
“[Defense counsel]: Is there any notes that say that, the
reason why you asked that question? In other words, why this was
a bluff, in other words?
“[The witness]: No.”
After the parties completed their questioning of the officer,
the court asked the following questions:
“The Court: Detective, I just want to clarify: What Mr.
Fujino admitted to was driving somewhere, claiming some
provocation, and bringing some other people? He admitted that?
“The Witness: Yes.
“The Court: He did not admit shooting?
“The Witness: He did not.
“The Court: He said he had a different role?
“The Witness: Yes.
“The Court: And that someone else did the shooting?
“The Witness: Correct.
“The Court: And as far your knowledge, he could have been
the person who fired, or possibly not, but you went on what he told
you and put that in your report?
“The Witness: That’s correct.”
No. 19
On cross-examination, Dorsett testified that as he hit Fujino’s
hand, the gun fired and Fujino’s hand moved upwards. The court
subsequently interjected: “And I don’t know if it will help you
communicate to talk about where the gun frame went versus where
32
the barrel was pointed versus where the bullet went since the gun
can go up, but the bullet doesn’t necessarily go up because the gun
goes up.” After the trial court’s comment, the prosecution pursued a
different line of inquiry.
No. 20
During cross-examination, the prosecutor asked Dorsett about
his September 2005 police interview in which he told police that he
had just returned from Mexico.11 The prosecutor asked Dorsett
why he said he had been out of the country when the detective
wanted to talk to him about a shooting. Dorsett responded that his
father told him to go to Mexico for his own safety after people
showed up at his house looking for him. The court interjected:
“The Court: . . . [W]e’re back to the conversation with the
detective. So you decided, when the detective presented to you the
situation, to mention Mexico. And was that the choice of the first
thing to say?
“The Defendant: Understood. So he suggested that I go to
Mexico, Puerto Vallarta specifically. He said, ‘If you get arrested,
you know, not to’—pretty much not to speak, to deny everything
and ask for a lawyer. . . .
“The Court: Mr. Dorsett, I think we wandered a bit. Have
you said what you wanted to say about your statement to the
detective about Mexico?
“The Defendant: Yeah. My—they told me—
“The Court: Have you said what—the context you wanted to
give to that?
11 The record reflects that Dorsett invoked his right to counsel
at the outset of the interview. Later he asked the officer “what’s
going on?” adding, “I haven't even been in this fucking country,
dude. . . . I barely got back.”
33
“The [Defendant]: My family told me not to—
“The Court: ‘Yes, I have said it,’ or ‘No, I feel I need more
explanation[?]’
“The Defendant: A little more explanation, if possible.
“The Court: Does it relate to your thinking?
“The Defendant: Yes. The reason why—
“The Court: Some people might be curious why didn’t you
just tell the detective, ‘someone tried to kill me, and I killed him
instead.’
“The Defendant: Because my family told me not to speak to
law enforcement, to ask for a lawyer as soon as I was arrested. Not
to run. Just as soon as I was apprehended to ask for a lawyer. And
they had already one on standby.
“The Court: So your goal was to do what had been
recommended to you?
“The Defendant: Yes.
“The Court: Go ahead, please.”
21.
In rebuttal, the prosecutor recalled the gang expert to testify
about various gang-related writings found in Dorsett’s bedroom.
The detective explained some of the slang used in the writings, and
stated that the words “cuete” and “heat” are slang terms for a
firearm.
After both sides had completed their examination, the court
asked the following:
“The Court: Detective, in these papers, have you noticed the
term ‘strap’ is used?
“The Witness: Yes.
“The Court: So not just limited to gang culture, that term
has a specific slang meaning of which you’re aware[,] is that
correct?
34
“The Witness: Correct.
“The Court: And if I were to say in that context, ‘I’m
strapped,’ what does that mean to you?
“The Witness: That you’re in possession of a firearm.
“The Court: If I tell you to bring strap, what am I asking you
to do?
“The Witness: To bring a handgun.
“The Court: Any further questions, in light of what I’ve
asked, counsel?
“[The Prosecutor]: No. Thank you, your honor.
“[Defense counsel]: Not by the defense.”
2. The Trial Court Engaged in Judicial Misconduct by
Directing Improper Comments and Questions to Defense
Witnesses
For the reasons stated above, we find no forfeiture of Dorsett’s
claims involving the court’s examination of witnesses. (See
Discussion, section B,2, ante.) Indeed, the trial court’s wholesale
dismissal of defense counsel’s concerns regarding the court’s
examination of Lorena Fernandez serves to reinforce our conclusion
that any further attempt by counsel to object to the court’s
involvement would have been futile. (Sturm, supra, 37 Cal.4th at
p. 1237; see People v. Gomez (2018) 6 Cal.5th 243, 292 [given the
trial court’s comments, it was reasonable to conclude that any
objection concerning judicial bias would have been futile].)
In our view, the trial court stepped outside the boundaries of
what can be characterized as proper witness examination. As
explained by our high court: “ ‘The constraints on the trial judge’s
questioning of witnesses in the presence of a jury are akin to the
limitations on the court’s role as commentator. The trial judge’s
interrogation “must be . . . temperate, nonargumentative, and
scrupulously fair” ’ ” and “ ‘ “[t]he trial court may not . . . withdraw
35
material evidence from the jury’s consideration . . . or otherwise
usurp the jury’s ultimate factfinding power.” [Citation.]’
[Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 350; People v.
Rodriguez (1986) 42 Cal.3d 730, 766.)
The record reveals the trial court intervened “in a
significantly uneven fashion,” thereby “strengthen[ing] the
impression that the trial judge was allied with the prosecution.”
(Sturm, supra, 37 Cal.4th at p. 1242.) The trial judge zealously
challenged defense witnesses with leading, and sometimes
argumentative, questions (e.g., Nos. 15, 17). The court questioned
prosecution witnesses in a manner that assisted the prosecution,
essentially stepping into the role of the prosecutor to establish a
point that supported the prosecution’s case or called into question
the credibility of the witness (e.g., Nos. 14, 15, 17, 18, 19, 20, 21).
Such uneven treatment can in and of itself constitute misconduct by
conveying an impression of partisan advocacy. (Ibid.; People v.
Rigney (1961) 55 Cal.2d 236, 241 [noting that the trial judge “must
not become an advocate for either party”].)
We address several instances in which the court’s questions
and comments created a danger of unduly influencing the jury by
suggesting the court’s view of the credibility of the witnesses and
the weight of their testimony.
First, after a series of questions in which the trial court
attempted to extract specific answers from Fernandez about the
tattoos she observed on Fujino (No. 15), the court queried, “Did you
kind of make that answer up about the tattoos?” This was
unequivocally misconduct. (People v. Rigney, supra, 55 Cal.2d at
pp. 241 [stating that the trial court “may not ask questions to
convey to the jury his opinion of the credibility of a witness”]; see
also People v. Byrd (1948) 88 Cal.App.2d 188, 191 [“Our courts have
many times reversed convictions in criminal cases because of
36
intimations by the trial judge during the taking of testimony that
the defendant or his witnesses was not believed by the judge”].)
The trial judge’s comments directed at defense expert Martin
Flores (No. 17) not only assisted the prosecutor by facilitating a line
of questioning, they also conveyed a negative impression of the
witness by criticizing his response to the prosecutor’s question in a
condescending manner. (People v. Rigney, supra, 55 Cal.2d at
p. 241 [“A trial judge may examine witnesses to elicit or clarify
testimony” but must not “under the [guise] of examining witnesses
. . . cast aspersions or ridicule on a witness”].) The court went even
further, suggesting that if Flores was “too fine” with his answers,
the jury could find his testimony to be less credible. (See Sturm,
supra, 37 Cal.4th at p. 1240 [noting “[t]he trial judge’s behavior
towards . . . expert witnesses for the defense conveyed to the jury
disdain for the witnesses and their testimony and therefore
constituted misconduct”].)
We are particularly troubled by the court’s inquiry into
Dorsett’s failure to tell the police that he shot Fujino in self-defense
(No. 20), because it strongly inferred the court did not view
Dorsett’s testimony to be credible, and undermined the defense
theory of self defense. The court’s use of the introductory phrase,
“Some people might be curious,” underscored a tone of skepticism or
disbelief. When a court’s questions convey the judge’s opinion of the
credibility of a witness, “there is grave danger not only that they
may induce the jury to form an opinion before the case is finally
submitted to them, but that the jury will substitute the judge’s
opinion for their own.” (People v. Rigney, supra, 55 Cal.2d at p. 241;
see also People v. Williams (2021) 60 Cal.App.5th 191, 203 ([“ ‘a
judge should be careful not to throw the weight of his judicial
position into a case, either for or against the defendant’ ”]; People v.
Byrd, supra, 88 Cal.App.2d at p. 191 [finding prejudicial misconduct
37
where the trial court asked a question from which the jury could
infer the judge was questioning the truth of the defendant’s denial
of the commission of the crime].)
Finally, we express our concern with the questions posed by
the court at the end of the prosecution’s rebuttal case (No. 21).
After the prosecutor had posed all of her questions regarding the
gang-related writings found in Dorsett’s home, moved on to other
topics, and defense counsel had completed his cross-examination,
the trial court stepped in to ask about Dorsett’s use of the word
“strapped” in his writings. In so doing, he was able to elicit
testimony regarding both the possession and carrying of firearms.
The court’s four-part inquiry was the last testimony elicited before
the parties rested.
Given that the date of the writings was unknown, and there
was no indication that any of the writings had any connection to the
shooting of Fujino, the trial court’s emphasis on this tangential
material was both unnecessary and highly damaging to the defense.
The timing also ran the risk of conveying the impression that the
trial court was putting a final judicial stamp of approval on the
prosecution’s case. (People v. Black (1957) 150 Cal.App.2d 494,
499.) By belaboring points of evidence that clearly were adverse to
the defense, the trial court took on the role of prosecutor rather
than that of an impartial judge. (People v. Rigney, supra, 55 Cal.2d
at p. 241 [noting that a trial court “must not become an advocate for
either party or under the [guise] of examining witnesses comment
on the evidence”].)
D. Prejudice
The Sturm court did not determine whether judicial
misconduct is evaluated for harmless error under People v. Watson
(1956) 46 Cal.2d 818 or Chapman v. California (1967) 386 U.S. 18[87 S.Ct. 824,17 L.Ed.2d 705]. Instead, the court held that reversal
38
was required under either standard. (Sturm, supra, 37 Cal.4th at
p. 1244.) Similarly, we conclude that reversal is required under
either standard of review.
In evaluating prejudice, we are mindful that Dorsett’s first
trial resulted in his acquittal of first degree murder; we reversed
the gang enhancement on direct appeal, and a federal court found
an error sufficiently prejudicial to warrant a new trial. While
Dorsett does not claim the evidence is insufficient to support his
second degree murder conviction, the verdict “was by no means a
foregone conclusion.” (Sturm, supra, 37 Cal.4th at p. 1244; People v.
Grimes (2016) 1 Cal.5th 698, 723.) On this point, we find People v.
Robinson (1960) 179 Cal.App.2d 624, particularly instructive.
In Robinson, the appellate court determined the trial court
had committed prejudicial judicial misconduct by unnecessarily
participating in the examination and cross-examination of
witnesses, and taking it upon itself to develop testimony helpful to
the prosecution. (People v. Robinson, supra, 179 Cal.App.2d at
p. 633.) While the evidence was “manifestly” sufficient to justify the
verdict, “it was not so strong or conclusive as to have precluded a
reasonable doubt in the minds of the jurors as to [the] defendant’s
guilt.” (Id. at p. 636.) The court noted that the case essentially
“required appraisal of the credibility of the witnesses,” and
concluded that the trial court’s misconduct tipped the scales in
favor of the prosecution. (Id. at p. 637.)
In the present case, the credibility of the eyewitnesses was
crucial. There was no dispute that Dorsett shot Fujino. The key
issue for the jury’s consideration was whether he acted with malice
aforethought or in the heat of passion by initiating an attack on
Fujino, or whether he acted in self-defense in response to a threat of
danger initiated by Fujino. Resolution of these issues hinged on the
39
jury’s assessment of the relative credibility of the prosecution and
defense witnesses.
Dorsett’s theory of self defense rested on his testimony that
Fujino initiated an angry confrontation and he fired at Fujino in
self defense after Fujino pointed a gun at him. The testimony by
the eyewitnesses revealed that a confrontation ensued between
Dorsett and Fujino after Fujino or one of his associates urinated on
or near Dorsett’s van and challenged Dorsett’s group by questioning
their gang membership. The prosecution’s gang expert confirmed
that Fujino was an Evil Klan gang member, and the location of the
shooting was in an area claimed by a rival gang. According to the
expert, it was common for gang members to arm themselves while
in rival territory. Furthermore, Fujino had participated in a
previous retaliatory shooting following an altercation with a rival
gang member.
Five neighborhood residents who were unassociated with the
defense (Davis, Armstrong, Ruiz, Escobar, and Oliver) heard
multiple gunshots. Armstrong, who was familiar with firearms,
testified the gunshots sounded different from one another, and the
sound was not the result of an echo. Their testimony lent credence
to Dorsett’s claim that he fired in response to Fujino’s brandishing
of a weapon. (See People v. Viramontes (2001) 93 Cal.App.4th 1256,
1263 [noting that if the jury believed the witnesses heard a pause
between the first shot and subsequent shots, it could find the
appellant had an actual belief in imminent peril and lethal force
was necessary to defend against the shooter].)
Conversely, the prosecution witnesses either testified that
they did not see or hear the entire exchange between Dorsett and
Fujino, or they provided inconsistent statements on the issue. In
particular, Jasmine provided the following variations of the
shooting: (1) she saw Dorsett shoot Fujino; (2) she saw Dorsett point
40
a gun at Fujino before she ran but she did not see the actual
shooting; and (3) she ran away and did not see the gun in Dorsett’s
hand until she turned around after hearing a gunshot. Similarly,
during her police interview and at the preliminary hearing, Karina
claimed she did not see Dorsett shoot Fujino, but at trial she
testified she saw Dorsett shoot Fujino.
Due to the credibility determinations at play, the jury’s
verdict “was by no means a foregone conclusion.” (Sturm, supra, 37
Cal.4th at p. 1244.) Dorsett presented plausible evidence, which, if
credited, supported the defense theory. Given the relative weight of
the prosecution and defense evidence, we cannot conclude that the
trial court’s disparagement of defense counsel and witnesses, and
unnecessary intrusion into the adversarial process in a manner that
appeared to favor the prosecution, was harmless. (People v.
Robinson, supra, 179 Cal.App.2d at pp. 636-637; see also Nieves,
supra, 11 Cal.5th at pp. 506-507 [finding “ ‘a “reasonable (i.e.,
realistic) possibility” ’ [citation] that the outcome would have been
different without the weight of judicial authority favoring the
prosecution”].)
Nor do we find the trial court’s instruction pursuant to
CALCRIM No. 3550 sufficient to dispel any prejudice.12 While we
12 Pursuant to CALCRIM No. 3550, the jury was instructed:
“It is not my role to tell you what your verdict should be. Do not
take anything I said or did during the trial as an indication of what
I think about the facts, the witnesses, or what your verdict should
be.”
Prior to reading the above passage from CALCRIM No. 3550,
the court told the jury “[t]he next paragraph . . . I’m going to expand
on a little bit first,” and then stated: “I do not go into the jury room.
You’re probably thinking no kidding, judge, we know that. That’s
our job. So I don’t go in there. Physically I will not be in there
when you’re in there. Mentally I don’t want to be in there either
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generally presume the jury followed its instructions (People v.
Harris, supra, 37 Cal.4th at p. 350), the language in CALCRIM
No. 3550 would not have prevailed “over the manner in which the
trial judge conducted himself throughout the . . . trial.” (Sturm,
supra, 37 Cal.4th at p. 1244.) By repeatedly interrupting the
proceedings to admonish counsel, asking questions of witnesses that
often harmed the defense, and making comments that impugned
the credibility of the defense case, the court telegraphed to the jury
its disdain for the defense. (Sturm, supra, 37 Cal.4th at p. 1243
[the trial court’s improper remarks were particularly prejudicial
where the court “interjected itself unnecessarily and
inappropriately into the adversary process” and “substantively
undermined the defense theory of the case”]; People v. Santana
(2000) 80 Cal.App.4th 1194, 1207 [a repeated admonition could not
cure the impression that the trial judge found the defense case to be
weak]; People v. Burns (1952) 109 Cal.App.2d 524, 542 [same].)
While perhaps no single instance of misconduct was prejudicial in
and of itself, “when added together their influence increases as does
the size of a snowball rolling downhill.” (Burns, supra, at p. 543.)
Based on the totality of the judicial misconduct, we conclude
the “errors were sufficiently severe and pervasive that it was
reasonably probable that the errors affected the jury’s deliberations,
and you should not take me in there in any way. So during the trial
you watched days and days you’ve seen me; you might think well, I
know how the judge feels about this, probably feels about that; this
witness; that witness; this question; that question; this lawyer; that
lawyer. You might think you know those things. If you do, it’s not
something you ought to be considering. It’s not the way the case is
decided. So that’s what I mean you don’t take me in the jury room
in any way.”
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to [Dorsett’s] detriment” and therefore, the conviction must be
reversed. (Sturm, supra, 37 Cal.4th at p. 1230.)
DISPOSITION
The judgment is reversed, and the matter is remanded for a
new trial.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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