People v. Carcamo CA2/4 ( 2021 )

Filed 12/29/21 P. v. Carcamo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307609
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA108328)
v.
JORGE CARCAMO,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Judith Levey Meyer, Judge. Affirmed in
part and modified in part with directions.
Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Jorge Carcamo of sexually
abusing S.F. when she was a minor. Appellant contends his
convictions must be overturned because the trial court repeatedly
disparaged and undermined him, his counsel, and his theory of
defense prior to and during his trial. He further asserts the trial
court deprived him of an interpreter and improperly denied him
the opportunity to call two crucial witnesses. Appellant forfeited
these arguments by failing to object on judicial misconduct
grounds below. Even if he had not, we conclude no intemperate
judicial conduct occurred. We also reject appellant’s contentions
that the trial court imposed an unauthorized sentence and fees.
We agree with appellant and respondent Attorney General,
however, that the sentencing minute order and abstract of
judgment contain errors. We accordingly order the sentencing
minute order and abstract of judgment modified as stated herein.
Appellant’s convictions and sentence are otherwise affirmed in
full.
PROCEDURAL HISTORY
A second amended information filed July 24, 2019 charged
appellant with seven counts1 of sexual abuse: six counts of
committing a lewd act upon a child, S.F., subd. (a)),2 and one
count of oral copulation or sexual penetration of S.F., a child 10
years old or younger (§ 288.7, subd. (b)). As to two of the lewd act
counts, it was alleged that appellant had substantial sexual
contact with S.F., who was under the age of 14 at the time
1 In the second amended information, the charges were
numbered two through eight. At trial, they were renumbered one
through seven.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
2
(§ 1203.066, subd. (a)(8)).
The matter was tried to a jury in January 2020. At the
conclusion of the prosecution’s case in chief, it moved to dismiss
the section 1203.066, subdivision (a) allegation. The defense did
not object to this request, which the court granted.
The jury found appellant guilty of sexual penetration of a
child 10 years old or younger, as well as five of the six lewd act
counts.3 After denying appellant’s motion for a new trial, the
trial court sentenced appellant to the mandatory term of 15 years
to life on the sexual penetration count. It sentenced appellant to
a consecutive midterm of six years on the first lewd act count,
and consecutive terms of 1/3 the midterm (two years) on three of
the others. On the final lewd act count, which involved leg and
vaginal rubbing that occurred immediately prior to
the digital penetration, the court sentenced appellant to a two-
year concurrent term, because “there were separate acts in a
single course of conduct.” Appellant’s total sentence accordingly
was 12 years plus 15 years to life. The trial court imposed a
restitution fine of $1,000 (§ 1202.4, subd. (b)), a court operations
assessment of $240 (§ 1465.8, subd. (a)(1)), and a court facilities
assessment of $180 (Gov. Code, § 70373, subd. (a)(1)).
Appellant timely appealed.
FACTUAL BACKGROUND
I. Prosecution Evidence
S.F. testified that she was born in 2000 and was 19 at the
time of trial. When S.F. was about six or seven, her parents
began taking her to work with them during the summers; they
3 The lewd act count of which appellant was acquitted was
pled in the alternative to the count alleging sexual penetration of
a minor 10 years old or younger.
3
both worked at a trucking company that was owned and
operated by her father’s family. Most of the workers there were
members of S.F.’s extended family; appellant was one of the few
who was not related to S.F. According to S.F., appellant worked
in one of the trucking company’s offices. S.F. estimated that
appellant, a family friend, was 40 to 50 years old.
S.F. testified that there were two trailers or shipping
containers in the trucking yard that served as offices. The larger
trailer was divided into three rooms: an office used by S.F.’s
grandfather; an office shared by S.F.’s uncle, appellant, and
“whoever was working with him at that time”; and a “drivers’
room” or “break room” used by the truck drivers. The smaller
trailer contained two offices.
When S.F. was about seven or eight years old, she was
coloring in her father’s office when appellant walked in. He
leaned behind her for what she thought was a hug, but then he
moved his face toward hers and stuck his tongue in her mouth.
S.F. did not understand what had happened and “just kept going
on with [her] day” without telling anyone about the incident. She
said she did not recall any further incidents that summer, but
also stated that appellant kissed her a few times a week from
that point forward. S.F. stated that the incidents occurred in
various locations around the trucking yard, “anywhere where
people couldn’t see us or there was no cameras.”
When S.F. was about eight or nine years old, appellant
kissed her and rubbed her leg and inner thigh while she was in
the drivers’ room. He also slipped his finger into her shorts and
touched the lips of her vagina, but stopped when someone
entered the room. On a different occasion, when S.F. was about
nine or ten years old, she was checking container numbers
4
outside the drivers’ room when appellant pulled her up against a
yellow forklift and began kissing her and touching her body.
Appellant pulled her shorts aside and attempted to insert his
penis into her vagina; he stopped after S.F. began “moving a lot.”
S.F. and appellant then continued to check the container
numbers, and appellant told her, “you know what we’re doing is
wrong.” Appellant always spoke to S.F. in English, because she
did not speak Spanish.
The last incident between appellant and S.F. occurred
when S.F. was 11 or 12 years old. S.F. and appellant were
helping her uncle and cousin move some papers from one of the
offices to a separate container on the property. While they were
alone, appellant kissed her and put his hands on her breast. S.F.
told appellant to stop, and he did. After that, S.F. stayed “more
on guard” and watched appellant carefully, because she had
younger siblings. She did not tell anyone what had happened,
however, because she did not think they would believe her.
S.F. kept the information to herself until January 4, 2018,
when it “unintentionally . . . came out” during an argument with
her mother. S.F. disclosed the abuse to her father later that day.
The following morning, she went to the police station; she spoke
with various police officers and detectives over the next several
weeks.
On or about January 22, 2018, at the request of Los
Angeles Police Department (LAPD) detective Jon Kakita, S.F.
called appellant on the phone and had a recorded conversation in
English about the abuse (the “pretext call”).4 The recording was
4Kakita testified that a “pretext call” is “a recorded phone
call where we attempt to have a victim call a suspect and ask
5
played for the jury and admitted into evidence. During the call,
S.F. told appellant that she wanted answers about “some things
that happened when I was little,” like when “you kissed me.”
Appellant responded, “Yes, I’m sorry about it. You are still mad
at me, right?” S.F. said she was not mad, but wondered why
appellant had kissed her with his “tongue and stuff” when she
was “so little.” Appellant responded, “Yes, I, I know that. My
bad, because I shouldn’t do that. I shouldn’t do that.” S.F. said
she was “only, like, eight,” and appellant responded, “Yes, I know.
I shouldn’t do that, sorry about it.” When S.F. pressed for an
explanation, appellant said he “was crazy” and S.F. was “pretty”
when she was eight, “but it doesn’t mean that I, that I should do
that. I know that, but I made a mistake.” Appellant later said
that he had thought that S.F. could be his girlfriend when she
was older, even though this was “thinking stupid.”
S.F. subsequently told appellant that she remembered him
touching her “boobs and stuff,” and she “didn’t know like what
was going on” at the time. Appellant responded, “I know, and I
am sorry about it, because what I said like, I was, I was crazy.”
Appellant also agreed with S.F.’s statement that he put his hands
in her pants when she was “like 10,” said he remembered “having
sex” with her when she was “like 10 or 11,” and apologized for
“hurt[ing]” S.F. He also reiterated that he “made a mistake” for
which there was “no excuse.” Appellant thanked S.F. when she
told him she forgave him.
II. Defense Evidence
Appellant testified, through a Spanish interpreter, that he
worked at the trucking company from 2004 until his arrest in
questions of why certain things happened. The point of the call is
to get admissions or incriminating statements from the suspect.”
6
2018. He primarily worked as a dispatcher, but also helped in
the yard sometimes. He only spoke Spanish on the job.
Appellant testified that S.F.’s mother brought S.F. to the
trucking company during the summers. S.F. sometimes came
into the dispatch office where appellant worked to say hello to
her uncles, whom she would greet with a kiss on the cheek. S.F.
also greeted appellant in this manner. On one occasion, around
2011, appellant inadvertently kissed S.F. on the lips during their
typical greeting. He did not stick his tongue in her mouth. When
S.F. “practically” asked him to kiss her on the lips again, he
“tried to explain to her that it was not good for [him] to do it.”
Appellant did not kiss S.F. on the lips again. He did, however,
accidentally touch her breast during a greeting hug some time in
2011 or 2012. Appellant denied ever touching S.F. in a sexual
way. He also testified that neither the drivers’ room nor the
yellow forklift S.F. identified as sites of abuse was present prior
to 2012.
During the pretext call, appellant was distracted because
he was cooking four different dishes, listening to the news on
television, and drinking beer. He heard S.F. ask about a kiss, but
did not hear her mention him putting his tongue in her mouth,
placing his hands down her pants, or having sex with her. He
also denied knowing the meaning of the English word “boobs.”
Appellant testified that during the call, he apologized, admitted
making mistakes, and called himself crazy “so that [S.F.]
wouldn’t feel guilty of something because she was a child.” He
was specifically referring to the times he accidentally kissed her
on the lips and touched her breast when greeting her. Appellant
stated that he “really didn’t know how to respond [to S.F.] in
English” during the call.
7
Appellant was not “alarmed” or “afraid” during the pretext
call and did not know why he was arrested at work the following
day. Two LAPD officers, Kakita and Humberto Pitones,
effectuated the arrest; Pitones spoke to appellant in Spanish.
When appellant arrived at the police station, he asked Kakita to
interview him in Spanish because he did not understand English.
Kakita continued to speak to appellant in English. Appellant
tried to understand and respond as best he could, but he did not
“understand what [Kakita] was saying perfectly” or “correctly”
and did not know why he had been detained. Appellant tried to
communicate in Spanish with Pitones, who was also in the room,
but Pitones “would just look at” appellant and did not answer
him. Appellant believed Kakita was asking only about the
greeting kiss, which he admitted. Appellant also admitted that
his arm had inadvertently brushed against S.F.’s breast. He
denied kissing S.F. with his tongue or digitally penetrating her
vagina.
Kakita and LAPD officer Alma Skefich and Kakita testified
about inconsistencies in S.F.’s allegations and in the reports they
prepared. Kakita also testified that he visited the trucking
company during his investigation but did not take any
photographs, look for corroborating witnesses, or ask about what
the facility looked like in 2008.
Kakita also testified that he assisted S.F. with the pretext
call on January 22, 2018. The following day, January 23, 2018,
he and Pitones, a Spanish-speaking officer, went to the trucking
company to arrest appellant. Kakita testified that Pitones did
not speak with appellant in Spanish. Pitones was present during
Kakita’s interview with appellant, which Kakita conducted in
English for unspecified “various reasons.” Appellant did not
8
appear to have any difficulty answering Kakita’s questions.
Kakita admitted, however, that appellant asked him what an
“attorney” was, “there were instances where he would say short
phrases in Spanish,” and appellant occasionally spoke to Pitones
in Spanish.
Appellant presented two witnesses, Jose Marquez and
Sonia Aguilar, who worked at the trucking company from 2008 to
2012 and were familiar with its facilities. Marquez testified that
the drivers’ room did not exist prior to 2012, and the yellow
forklift was not on the property until sometime in 2011 or 2012.
He also testified that there were always “quite a few” people in
the trucking yard and multiple drivers in the dispatch room.
Marquez further testified that he never saw appellant leave the
offices. Aguilar, Marquez’s spouse, similarly testified that the
drivers’ room was created in 2011.
Appellant also presented several character witnesses, all of
whom described him positively. Aguilar testified that appellant
had a reputation as a “very honest” person of good moral
character. Aguilar further testified that she never suspected
appellant was sexually interested in her daughter, who was
approximately 13 or 14 when appellant first visited her house.
Aguilar’s daughter, Jammie Salmeron testified that she first met
appellant, now a family friend, about 10 years ago, when she was
about 12 or 13. She testified that he had a reputation as “a good,
honest, and helping person.” He never tried to kiss her.
Estela Lobos testified that she lived next door to Aguilar,
Marquez, and Salmeron. She interacted with appellant a few
times a month, when he would visit her neighbors. She testified
that he was “always very respectful to everyone” and she never
suspected that he was interested in Salmeron or her own
9
daughter. Lobos’s daughter, Kelly Lobos, who was 23 at the time
of trial, testified that appellant was “very truthful,” “always very
respectful,” and “very helpful, very sweet.” Kelly “never got” from
appellant that he had “the character trait for engaging in sexual
deviant behavior.”
III. Prosecution Rebuttal
The prosecution re-called Kakita, who confirmed that he
interviewed appellant in English, in the presence of officer
Pitones. Appellant never asked Kakita to have Pitones translate
what he was saying. The prosecution also played portions of the
recorded interview, which were admitted into evidence. In the
interview, Kakita asked appellant, “So when she was 8 years old,
a child, did you kiss her?” Appellant responded, in English, “Yes,
I’m not going to lie about it,” and stated that he kissed S.F. “right
here in the mouth.” Appellant denied sticking his tongue in
S.F.’s mouth. He admitted touching S.F.’s chest, which he called
a mistake.
Officer Pitones testified that he and Kakita arrested
appellant on January 23, 2018. When they arrived at the police
station, Pitones “dialogu[ed] in Spanish” with appellant to “put
him at ease.” Pitones remained in the room during Kakita’s
interview of appellant, which was conducted in English.
“Intermittently” during the interview, appellant addressed
Pitones if he was confused about “a certain word.” For instance,
Pitones clarified for appellant that Kakita was not using the word
“sex” to refer to “male or female.” Pitones testified that appellant
did not ask him to translate anything Kakita said.
10
DISCUSSION
I. Judicial Misconduct
Appellant’s primary argument is that the trial court
engaged “in a pattern of conduct that denigrated defense counsel
and undermined appellant’s due process, his right to a fair trial
with an impartial jury, effective assistance of counsel, and the
right to a complete defense.” Appellant contends the trial court
acted inappropriately in five ways: (1) by initially denying
(though ultimately granting) defense counsel’s request to
continue trial; (2) by stating that appellant spoke “some English”
during jury selection; (3) by ruling that appellant’s recollection of
the Kakita interview conducted in English could not be refreshed
via Spanish translation; (4) by ruling that two defense witnesses
could not testify pursuant to Evidence Code section 352; and (5)
by making “speaking commentary” that “undermined” defense
counsel in front of the jury. Appellant argues that these
incidents, both individually and cumulatively, deprived him of a
fair trial.
A. The misconduct claim is forfeited.
Respondent contends that appellant has forfeited any claim
of judicial misconduct by failing to object on that ground at trial.
“As a general rule a specific and timely objection to judicial
misconduct is required to preserve the claim for appellate
review.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1320.)
Appellant, who did not object on judicial misconduct grounds at
any point prior to or during trial, acknowledges that he
“anticipated” this argument. He replies that no objection was
necessary because “the record . . . is overwhelmingly clear that it
would have been futile to object by uttering the magic words,
‘judicial misconduct.’” Largely quoting People v. Sturm (2006) 37
11
Cal.4th 1218, 1237 (Sturm), he asserts, “Given the evident
hostility by the judge toward defense counsel, it would have been
unfair to require defense counsel to choose between repeatedly
provoking the trial judge into making negative statements about
defense counsel, appellant, or the case, or alternatively, giving up
the client’s ability to argue misconduct on appeal.”
We agree with respondent that appellant has forfeited his
judicial misconduct claim of error. Although appellant objected
to some of the incidents he identifies as misconduct, he did not do
so on misconduct grounds. Furthermore, the record does not
support his assertion that such objection would be futile. The
trial court was receptive to appellant’s objections in at least two
of the five alleged instances of misconduct: it granted appellant’s
request to continue trial, even after jury selection had begun, and
it issued a curative instruction, with input from counsel, after its
comment that appellant spoke “some English.” The record as a
whole does not evince “evident hostility between the trial judge
and defense counsel” of the sort found to render objection futile in
Sturm, supra, 37 Cal.4th at p. 1237, or a “trial atmosphere so
poisonous [as to] thrust [defense counsel] upon the horns of a
dilemma” analogous to that discussed in People v. Hill (1998) 17
Cal.4th 800, 821.
B. Even if considered, the misconduct claim lacks
merit.
Even if appellant had properly preserved his claim of
judicial misconduct, we would reject it on the merits.5
5Because we conclude that appellant’s claim of judicial
misconduct would fail on the merits if preserved, we reject his
alternative contention that defense counsel rendered ineffective
12
“We review claims of judicial misconduct on the basis of the
entire record.” (People v. Peoples (2016) 62 Cal.4th 718, 789.)
“‘[O]ur role . . . is not to determine whether the trial judge’s
conduct left something to be desired, or even whether some
comments would have been better left unsaid. Rather, we must
determine whether the judge’s behavior was so prejudicial that it
denied [the defendant] a fair, as opposed to a perfect, trial.’”
(People v. Snow (2003) 30 Cal.4th 43, 78.) “‘A “trial court
commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the
defense or create the impression that it is allying itself with the
prosecution.” [Citations.] Jurors rely with great confidence on
the fairness of judges, and upon the correctness of their views
expressed during trials. [Citation.] When ‘the trial court persists
in making discourteous and disparaging remarks to a defendant’s
counsel and witnesses and utters frequent comment from which
the jury may plainly perceive that the testimony of the witnesses
is not believed by the judge . . . it has transcended so far beyond
the pale of judicial fairness as to render a new trial necessary.”’
(People v. Peoples, supra, at pp. 789-790, quoting Sturm, supra,
37 Cal.4th at p. 1233.) Solitary or fleeting comments are
insufficient to establish judicial misconduct, as are ambiguous
remarks that may be understood by the jury as polite reminders
to counsel. (See People v. Seumanu, supra, 61 Cal.4th at p. 1321.)
assistance by failing to preserve the issue for appeal. (See
Strickland v. Washington (1984) 466 U.S. 668, 687 [to establish
ineffective assistance of counsel, an appellant must show both
deficient performance by counsel and resultant prejudice].)
13
1. Continuances
The first incident of alleged misconduct occurred before
trial, when the trial court initially denied, but subsequently
granted appellant’s requests to continue the trial. At a pretrial
conference in August 2019, defense counsel, who had been
appointed to the case in April 2018, proposed a trial date of
September 18, 2019. Defense counsel subsequently agreed to
continue the trial date to December 4, 2019, but on that date
requested another continuance for various reasons, including
delays in another trial and her recent receipt of a new witness
list from appellant. The court agreed to continue the trial to
December 16, 2019, at which point defense counsel asserted that
she “cannot be ready and provide effective representation for Mr.
Carcamo by that day.” After a colloquy during which counsel
suggested the public defender’s office was overworked, the court
ruled counsel had had “ample opportunity to prepare for this
case” and “deem[ed]” her ready by December 16. On December
16, defense counsel again asserted she was not ready. The court
allowed counsel to make a record, then called in the prospective
jurors to begin jury selection. After a full day of jury selection,
defense counsel again raised the issue of her preparedness, citing
her workload among other factors, and requested a continuance
of one week. The court continued the trial to January 13, 2020,
over the prosecution’s objection.6
6 It also issued an order to show cause as to whether the
public defender’s office should be removed from the case. The
record does not contain further information on that matter,
though we infer the public defender’s office remained on the case
because appointed counsel continued to represent appellant at
trial.
14
While acknowledging that the decision whether to grant or
deny a continuance is discretionary (see, e.g., People v. Beames
(2007) 40 Cal.4th 907, 921), and that he in fact “eventually did
obtain a continuance,” appellant asserts the court was
unreasonable, impatient, and denigrating to counsel before
granting the continuance. He contends the trial court
“undermined defense counsel’s integrity and her preparedness
and her ability to present an effective defense and did so in front
of her own client,” and claims this “presented a harbinger of what
was to come” during the trial. Our review of the record reveals
no abuse of discretion or misconduct by the trial court. Appellant
received two requested continuances. To the extent the court
may have been impatient or frustrated, and expressed those
feelings, such isolated comments do not demonstrate misconduct
or bias. (People v. Nieves (2021) 11 Cal.5th 404, 482-483.)
2. Appellant’s ability to speak English
Appellant next contends the trial court “undermined and
tainted appellant’s defense at the inception of the case” by telling
the jury panel that appellant “speak[s] some English.”
Specifically, when introducing the parties and other people the
jury would see in the courtroom, the court stated, “So, ladies and
gentlemen, you can see Mr. Carcamo Privado is using the
assistance of a Spanish interpreter. Just so you know, I’ve met
Mr. Carcamo before. He does speak some English, but when it
comes to an important hearing such as this - - . . . [i]t’s just
important that someone speak 100 percent of the language.
That’s all. That they understand 100 percent of what’s going on. .
. . Even if that person might speak some English, we make sure
that they understand 100 percent of what’s going on in a
courtroom . . . . We want to make sure that everybody in the
15
courtroom understands 100 percent of everything that’s spoken
in court. That’s all. Okay. So please do not read anything into
this or have any sort of opinion whatsoever just because he might
be using the services of the Spanish interpreter. It’s actually
required by the court and the court actually insists that he use
the services of the Spanish interpreter. Okay. So don’t consider
that in any way.”
Defense counsel requested a sidebar during these remarks,
which the court granted at their conclusion. At sidebar, defense
counsel asserted that appellant “speaks very, very, very little
English,” and that the amount of English he speaks was “[o]ne of
the main issues in the trial.” She requested “the venire be
excused and we start over.” The court denied the request.
Counsel then asked, “Are you going to fix what you said in any
way?” The court said, “No. Thank you,” and resumed its
remarks to the jury. During those remarks, the court informed
the jury that “words here from the bench are not evidence.”
Once the potential jurors were excused, the prosecutor
“supplement[ed]” the earlier sidebar by pointing out that
appellant was heard speaking English in the recordings of the
pretext call and the nearly two-hour interview with Kakita. He
asserted that appellant’s fluency “will, obviously, be up for debate
in front of the jury.” The court thanked the prosecutor and
reiterated that it had “tried to make it clear that even things that
come out of my mouth is [sic] not evidence with lots of examples.”
It also told defense counsel, “I appreciate your earlier motion [to
excuse the venire]. I can see why you would make that earlier
motion. I have zero issue with that earlier motion, but based on
the way the court describes evidence in the case and that you
even said that this is a particular question as to evidence I think
16
the court made it exceptionally clear that they will get evidence.”
In response to defense counsel asking where the court received
the information that appellant spoke some English and some
Spanish, the court clarified that its statement had been based on
its interactions with appellant in court. Defense counsel then
requested a transcript of the court’s earlier remarks, which she
asserted were “very beneficial to the People and very prejudicial
to Mr. Carcamo Privado,” and requested a mistrial. The court
ordered the transcripts but denied the request for mistrial. It
also invited the parties to think about a potential curative
instruction during the lunch break.
The court and counsel resumed discussion of the issue after
lunch. Defense counsel asserted that the court’s remarks
“direct[ed] a verdict as to whether my client speaks some English,
[and] also affected his credibility.” She also called the court’s
attention to People v. Tatum (2016) 4 Cal.App.5th 1125 (Tatum),
in which the appellate court held a trial court erred in denying a
mistrial after it made derogatory remarks about the credibility of
plumbers when one of the main alibi witnesses in the case
happened to be a plumber. The trial court concluded Tatum was
distinguishable, but told the parties it would provide a curative
instruction. After taking input from the parties, the court told
the prospective jurors, “Ladies and gentlemen, I mentioned
earlier during the introduction of the parties that Mr. Carcamo is
using the services of the Spanish interpreter and that he may
speak some English. What amount of English Mr. Carcamo
speaks and understands may be an issue in the case, so please do
not take my comments earlier during the instructions as any
evidence - - and I mean evidence that goes in the box. Okay. It’s
just not. Do not take it as any evidence as to what, if any,
17
amount of English Mr. Carcamo speaks or understands. It’s just
a number. Like I said, we’re just glorified referees. What the
judge says is not evidence.”
As noted above, recordings of both the pretext call and
appellant’s interview with Kakita were played for the jury. S.F.
testified that she and appellant always spoke to one another in
English, while appellant testified that he did not understand
English “perfectly”. Both parties addressed appellant’s English
proficiency (or lack thereof) during their closing arguments.
Appellant contends the court erred when it “essentially told
the jury that appellant may not have needed an interpreter at
all,” then “highlighted the error over defense objection by
admonishing the jury that the court was no more than a referee—
and what the court said wasn’t evidence.” He asserts “the entire
case was about what appellant understood was being asked of
him during the pretext call and during interrogation which of
course dovetailed with his credibility because it was his word
against that of S.F.”
We reject appellant’s claim of misconduct. The court’s
statement that appellant spoke “some English” was an accurate
one. Appellant’s recorded statements in the case demonstrated
that he had some English proficiency, and appellant himself
testified that he did not understand English perfectly, necessarily
implying that he understood at least some amount. The parties
both presented evidence concerning appellant’s English
proficiency, and argued the issue to the jury. To the extent the
trial court’s comment may have been ineloquently worded, the
trial court corrected any problem by instructing the jury panel
that its statements were not evidence and it should not consider
18
the court’s remarks as evidence of the amount of English, if any,
appellant spoke.
Neither the court’s original comment nor its follow-up
instruction directed a verdict, supported the prosecution’s
position, or suggested the court found appellant not credible.
Unlike Tatum, supra, 4 Cal.App.5th 1125, in which the court
categorically commented on the credibility of plumbers and
stated that it would not believe any plumber who testified, the
trial court here simply stated, accurately and neutrally, that
appellant spoke “some English.” It did not offer commentary on
how much English appellant spoke or understood, nor did it
convey any personal animus toward appellant, his witnesses, or
their credibility. Moreover, the court explicitly told defense
counsel that it “appreciated” and understood why she raised the
arguments she made, allowed her to make a record of the issue,
and ordered the transcripts of its ruling; no bias or contempt
toward counsel or her client is apparent from the record.
3. Refreshing recollection
Appellant next contends the court improperly deprived him
of an interpreter during a portion of trial and “presumed” he
spoke English well enough not to require an interpreter. After
appellant stated several times during direct examination that he
did not remember various portions of his interview with Kakita,
defense counsel sought to refresh his recollection with a
transcript of the interview. She asked that the interpreter read it
to him in Spanish. At sidebar, the court stated that it appeared
appellant was “playing games with this court” by saying “I don’t
speak English” and “I don’t remember this interview.” The court
continued, “If he’s stupid, well then so be it, but I’m not going to
have the interpreter read him this transcript as a refreshing
19
recollection in Spanish when he understood perfectly well” when
he was interviewed in English. The court said it would allow
defense counsel to play a portion of the recorded interview to
refresh appellant’s recollection, or to read the transcript in
English. Defense counsel responded, “That’s perfectly fine.” The
court specifically stated that its remarks were not a “reflection on
[defense counsel].”
When the parties returned from sidebar, the court told the
jury, “So, ladies and gentlemen of the jury, there is a procedure
called ‘refreshing recollection. It’s just reminding somebody,
perhaps, of something said before, and in this case, perhaps how
it was said before. . . . [Defense counsel] is going to try to refresh
recollections with a document. I am actually ordering the
interpreter to not interpret how [defense counsel] reads from that
document because the [interview] was done with oral English and
so I want oral English to be refreshed. So just let me know when
you’re starting and stopping so our interpreter will know when to
stop translating.”
Appellant also points to an earlier portion of trial, during
S.F.’s testimony, when he advised the court that the interpreters
“do not get everything that’s being said.” After excusing the jury,
the court sought clarification: “Okay. So I’m a little confused
right now. You’re not supposed to be paying attention to the
English questions. You’re supposed to be speaking Spanish, and
you’re supposed to be listening to the interpreter interpreting the
questions in Spanish and then interpreting the answer in
Spanish. The way it was just conveyed to me now, is you’re
trying to understand the English question and then just listen to
the Spanish answer. Am I misunderstanding what’s going on,
sir?” Before appellant could answer, defense counsel asked if S.F.
20
could leave the stand, which the court then ordered her to do.
Appellant then told the court, “Yes. It’s being interpreted badly.”
The court responded, “So you understand English?” Appellant
said he did not, to which the court replied, “Well, clearly, you do if
you’re saying it’s being interpreted badly.” The court then asked
appellant, “are you having difficulty understanding, maybe, the
dialect, or is it just being spoken so fast? Because I really don’t
know what else to do to assist right now.” Appellant stated that
he was “not interpreting from the English,” and explained that
the interpreter had not interpreted one of S.F.’s answers. The
court said, “Okay. So it was just one incident where we missed
an answer. That’s what’s going on,” and appellant replied,
“Correct.” The court then repeated the relevant answer, and
said, “Very good. Simple issue. We will work to make sure the
question and answer are all interpreted.”
Appellant asserts these incidents “demonstrate how quickly
the court was to judge appellant by jumping to the conclusion
that he understood English.” He further contends the court’s
refusal to allow the Spanish interpreter to translate the English
transcript for appellant “was completely improper and an abuse
of discretion if not outright animus toward appellant,” who “has
the right to have an interpreter present during every aspect of a
criminal trial.” He emphasizes that his defense “was that he
didn’t understand a great deal of English,” and suggests the
alleged misconduct undermined that defense. He does not,
however, demonstrate judicial misconduct.
As respondent points out, and appellant acknowledges in
reply, defense counsel made no objection to the court’s ruling on
refreshing recollection. To the contrary, she responded, “[t]hat’s
perfectly fine.” Appellant contends this is because “it would have
21
been futile for counsel to object and further incur the court’s ire
toward appellant,” but there is no indication, even in these two
exchanges, that the trial court harbored “ire” toward appellant or
defense counsel that would render objection futile. In fact, the
court took steps to clarify the nature of appellant’s issue with the
interpreter, and gave defense counsel the option to refresh
appellant’s recollection by playing the audio recording of the
interview.
Appellant’s reliance on People v. Aguilar (1985) 35 Cal.3d
785, is misplaced. There, the trial court erred by “borrowing” the
defendant’s interpreter for use by other witnesses and the court,
leaving him without the interpreter’s services throughout
significant portions of the trial. Here, the court ensured that
appellant had the interpreter’s assistance throughout the trial,
with the exception of this single instance of refreshing
recollection, to which his counsel acquiesced. Similarly
distinguishable is United States v. Mayans (9th Cir. 1994) 17
F.3d 1174, 1177-1178, in which the trial court erred by requiring
the defendant to testify in English after he stated through the
interpreter that he spoke English. The court also made improper
comments, stating that the defendant “had been in this country
longer than he had been in Cuba,” and that testimony takes
“twice as long” with an interpreter. The defendant’s counsel
objected, then withdrew defendant as a witness. Here, the court
allowed appellant to testify through his interpreter. It did not, as
appellant asserts, “forc[e] counsel to conduct a portion of her
direct examination of appellant in English.” Rather, the court
required appellant to listen to his own prior English statements
as he had uttered them, in English, to refresh his recollection,
22
with the agreement of defense counsel. This did not constitute
judicial misconduct.
Appellant also repeatedly emphasizes that S.F. remained
on the stand during the court’s initial attempt to clarify why
appellant was unable to understand the interpreter, and that
defense counsel had to request that she be excused. He does not,
however, indicate how this contributed to the alleged judicial
misconduct. We do not see the relevance. Prior to the exchange
with the court, S.F. testified that appellant understood and spoke
to her in English. There is no suggestion in the record that S.F.’s
testimony was influenced in any way, and appellant’s colloquy
with the court took place outside the presence of the jury.
4. Exclusion of witnesses
During the defense case, defense counsel advised the court
that she had served a subpoena on Philip Robinson, a former
employee of the trucking company, earlier in the day. She stated
that she intended to ask Robinson only about “what the
configuration of the offices were in 2008.” Later, after Marquez
and Aguilar both testified at length about the configuration of the
offices, defense counsel proffered Robinson, who was not on the
witness list, as a witness. The court asked what the purpose of
calling Robinson would be, and defense counsel reiterated that
she just wanted to “show[ ] him four pictures and ask[ ] him if
this is the way [the trucking yard] looked in 2008.” The court
denied the request as cumulative under Evidence Code section
352. After the court ruled, defense counsel argued that Robinson
was an “important” witness because, unlike Marquez and
23
Aguilar, he was “not a friend to my client.” 7 The court stated,
“Counsel, I’ve ruled, and you’ve made your record. I’m not going
to go back and forth on this with you.”
The court also rejected as cumulative appellant’s request to
call Arturo Lobos, the husband of Estela Lobos and father of
Kelly Lobos, as a character witness. The court made this ruling
after counsel stated that Arturo’s testimony would not differ
materially from Estela’s. After a brief recess, defense counsel
again raised the issue of Arturo Lobos at sidebar, advising the
court that Arturo was “the one who knows my client the best,”
and therefore “has the most [sic] information about the character
than the other two.” The court thanked counsel for the additional
information and said it was “standing by its ruling.”
During rebuttal argument, the prosecutor urged the jury to
discount the testimony of appellant’s “character witnesses,” all of
whom “treat him like family” and thus “have an implicit bias
about him.” Defense counsel objected on the grounds of
prosecutorial misconduct. The court asked if she wished to be
heard, and counsel said she would make her record when the
argument was concluded. Counsel subsequently clarified that
the basis of her objection was that the prosecutor “didn’t have a
good faith believe [sic] that we didn’t have witnesses to present”
who were not friends with appellant, namely the excluded Philip
Robinson. The prosecutor responded that “the record will stand
for itself,” and the court thanked counsel.
7Appellant seemingly undercuts this assertion in his
opening brief, stating in a footnote that Robinson was “another
dispatcher who only spoke English” and appellant “would joke
around with him using sign language.”
24
Appellant now contends “the record does speak for itself,”
and “favors the defense,” because the trial court “once again
interfered with a critical aspect of appellant’s defense by
excluding the evidence” and the prosecutor committed
misconduct by “sandbagging” and “us[ing] a court ruling to the
State’s advantage.”
A trial court’s evidentiary rulings against a party, even if
erroneous, “‘do not establish a charge of judicial bias, especially
when they are subject to review.’” (People v. Farley (2009) 46
Cal.4th 1053, 1110.) Appellant does not argue under a separate
argument heading that these rulings were erroneous, though he
contends the rulings were incorrect because they were based on
the “implied assumption” that he “could not rely on the proffered
evidence of individuals who knew him more intimately than Kelly
or Estela Lobos.” The record does not support this theory. The
court directly asked counsel if Arturo’s testimony would differ
materially from that of the other character witnesses, and she
said it would not. The court acted well within its discretion by
prohibiting appellant from presenting admittedly cumulative
evidence. (See Evid. Code, § 352; People v. Miles (2020) 9 Cal.5th
513, 587.)
With respect to Robinson, appellant asserts that Robinson
“could testify to appellant’s acumen for the English language by
virtue of his daily interaction with appellant.” However, when
the court asked counsel for a proffer on Robinson, she stated only
that he would testify about the layout of the offices in 2008. The
trial court could not have abused its discretion or committed
judicial misconduct by failing to permit a witness to testify about
a topic which was not brought to its attention. Appellant also
asserts, without citation to authority, that the prosecutor’s
25
rebuttal argument about Robinson was “done in bad faith.” This
is an inaccurate characterization of the prosecutor’s argument,
which referred only to the putative biases of appellant’s
“character witnesses.” Robinson was proffered as a limited
percipient witness, not a character witness. Neither judicial nor
prosecutorial misconduct occurred.
5. Speaking commentary
Finally, appellant contends the court undermined defense
counsel by making “persistent, discourteous, and/or improper
commentary” about defense counsel’s courtroom performance,
“contaminat[ing] material aspects of the defense case.” He first
points to comments the court made during S.F.’s testimony, when
it asked defense counsel to clarify which page of the pretext call
transcript she was referring to, and when it told counsel that
appellant’s assertions that he was crazy “over and over again”
were “in a different interview.” Next, he points to the direct
examination of Aguilar, during which the court asked defense
counsel why she was going to publish an exhibit Aguilar said she
did not recognize. He also notes that defense counsel asked
permission to ask Aguilar a final question after she had already
left the stand, which the court evidently denied during an
unreported sidebar.
Finally, appellant points to exchanges during defense
counsel’s questioning of Kakita. The prosecutor objected to a
question concerning Kakita’s reasons for conducting the
interview in English on the grounds of relevance and “calls for a
conclusion.” The court stated the objection was sustained.
Defense counsel asked, “On what grounds?”, and the court
explained, “What’s going through his state of mind doesn’t
matter. It’s what the jury ultimately concludes. The amount of
26
English your client speaks, based on – they have a pretext call,
and they just heard this. So what he’s thinking is . . . he’s not the
trier of fact. The jury is.” Later, the trial court asked counsel if
she had previously read aloud an excerpt of a transcript, and
then said that the precise number of employees on the yard was
“a collateral issue, unless you want to approach and explain to
me the ultimate relevance.” Outside the presence of the jury, the
court ruled that “impeaching [S.F.] on this one point in the yard
has already been established for days now, so I’m ruling, under
352, enough with this.” Defense counsel asked the court if it was
“not allowing [her] to respond to what was asked on cross and
redirect,” and it said, “That’s correct.” The court also denied
defense counsel’s request to reopen after the prosecutor concluded
his recross-examination of Kakita.
Appellant contends these “speaking comments” by the court
constituted misconduct. We disagree. The trial court has a duty
to control the conduct of the trial, and is vested with the
discretion to rebuke attorneys if they ask inappropriate
questions, disobey the court’s instructions, or otherwise engage in
improper or dilatory behavior. (People v. Woodruff (2018) 5
Cal.5th 697, 770.) “[C]orrect rulings occasionally accompanied by
impatience” do not rise to the level of judicial misconduct. (Id. at
p. 768.) The trial court’s remarks during S.F.’s and Aguilar’s
testimony, and its cessation of the inquiry into the number of
people at the trucking company, were proper, if perhaps
impatient, exercises of its duty to control the conduct of the trial,
as were its restrictions on asking additional questions of
witnesses who had already been excused. The court’s
explanation of its evidentiary ruling during Kakita’s testimony
was a direct response to a question from defense counsel. It was
27
not, as appellant suggests, an implication to the jury that defense
counsel was deliberately asking improper questions to place
inadmissible evidence before the jury. (People v. Nieves, supra,
11 Cal.5th 404, 485.) In the context of the entire trial, the court’s
remarks, separately and collectively, do not demonstrate judicial
misconduct.
II. Sentence
The court sentenced appellant to consecutive terms on all
but one count of committing a lewd act upon a child. The court
sentenced appellant concurrently on the count involving the
rubbing of S.F.’s leg and vaginal area, which the prosecution
alleged happened immediately prior to appellant’s digital
penetration of S.F.’s vagina. The court was required to sentence
appellant to a term of 15 years to life for the digital penetration,
which the jury found occurred when S.F. was 10 years of age or
younger. (See § 288.7, subd. (b).) The trial court explained, as to
the rubbing count and digital penetration count, “Technically it is
not a 654 issue, meaning they are separate acts. The court has
the authority to run [sentence on the rubbing count] consecutive.
I’m choosing to exercise my discretion because . . . there were
separate acts in a single course of conduct. Separate acts would
justify consecutive sentencing, but the court is exercising
discretion to give it concurrent sentencing.”
Appellant now contends this sentence was unauthorized.
He asserts that the sentence on the lewd act count should have
been stayed under section 654, because the act of rubbing S.F.’s
leg and vaginal area was “committed for the purpose of
facilitating and therefore incidental to the remaining sexual
offense of digital penetration.” Respondent responds that
appellant “could have placed his hand under S.F.’s shorts and
28
digitally penetrated her vagina without any . . . external rubbing,
[so] those preparatory acts were not incidental to, nor the means
by which appellant subsequently penetrated S.F. As such, the
court properly punished him for both criminal offenses.” We agree
with respondent.
Section 654, subdivision (a) provides that “[a]n act or
omission that is punishable in different ways by different
provisions of law shall be punished under the provision that
provides for the longest term of potential imprisonment, but in no
case shall the act or omission be punished under more than one
provision.” The statute ensures a defendant is punished in
accordance with his or her culpability by preventing him or her
from being punished twice for two crimes arising from a single,
indivisible course of conduct. (People v. Hicks (2017) 17
Cal.App.5th 496, 514 (Hicks).) Whether a course of conduct is
divisible and consequently gives rise to multiple acts within the
meaning of section 654 depends on the intent and objective of the
defendant, not the temporal proximity of the offenses. (Ibid.) “In
cases involving sex offenses, courts have found that ‘[e]ven where
the defendant has but one objective—sexual gratification—
section 654 will not apply unless the crimes were either
incidental to or the means by which another crime was
accomplished. [Citations.] [Citations.] [¶] Section 654 does not
apply to sexual misconduct that is ‘preparatory’ in the general
sense that it is designed to sexually arouse the perpetrator or the
victim. [Citation.]’ [Citation.]” (Ibid.) This approach ensures
that a “clever molester” cannot “violate his [or her] victim in
numerous lewd ways, safe in the knowledge that he [or she] could
not be convicted and punished for every act.” (People v. Scott
(1994) 9 Cal.4th 331, 347.) We review the trial court’s factual
29
determinations regarding a defendant’s intent and the
“preparatory” nature of sexual misconduct for substantial
evidence. (Hicks, supra, 17 Cal.App.5th at p. 515.) In doing so,
we consider the evidence in the light most favorable to the
judgment. (Ibid.)
Here, the court expressly found that the rubbing and
penetration were separate acts. Indeed, as respondent observes,
appellant need not have rubbed S.F. before digitally penetrating
her. Although the rubbing preceded the penetration, the court’s
implicit finding that it constituted preparatory conduct intended
to arouse either or both appellant and S.F. was supported by
S.F.’s testimony. The court’s imposition of sentence for the
rubbing did not violate section 654. (See People v. Alvarez (2009)
178 Cal.App.4th 999, 1006-1007 [kissing and digital penetration
occurring shortly thereafter were separate acts].)
III. Imposition of Fines and Fees
The trial court imposed on appellant a restitution fine of
$1,000 (§ 1202.4, subd. (b)), a court operations assessment of
$240 (§ 1465.8, subd. (a)(1)), and a court facilities assessment of
$180 (Gov. Code, § 70373, subd. (a)(1)). Appellant raised no
objection to the fines or fees and did not invoke People v Dueñas
(2019) 30 Cal.App.5th 1157 (Dueñas). The court nevertheless
observed that the restitution fine exceeded the minimum, and
found that “in state prison they have the ability to work,” and
that appellant’s prison term of 27 years to life would give him
sufficient time to “earn that in prison wages.” The court further
stated, “If for some reason [appellant] becomes disabled at state
prison and cannot earn some type of prison wage, then the court
absolutely will review this order and consider not only reducing it
30
to the $300 minimum mandatory but on top of that staying it
entirely.”
Appellant now contends the court erred under Dueñas by
failing to hold an ability to pay hearing before imposing fines and
fees. In Dueñas, Division Seven of this court held that “due
process of law requires a trial court to conduct an ability to pay
hearing and ascertain a defendant’s present ability to pay before
it imposes” certain fines and fees. (Dueñas, supra, 30
Cal.App.5th at p. 1164.) Respondent asserts that appellant
forfeited the issue by failing to object to the imposition of the fine
and fees in the trial court. We agree.
The Dueñas opinion was issued on January 8, 2019.
Appellant was sentenced more than 18 months later, in July
2020, but he did not object on Dueñas grounds. Appellant argues
that his contention has not been forfeited, because under Dueñas,
the government must prove a defendant has the ability to pay
before the court may impose fines or fees. Dueñas does not so
hold. Division Seven, which decided Dueñas, has stated,
“Consistent with Dueñas, a defendant must in the first instance
contest in the trial court his or her ability to pay the fines, fees
and assessments to be imposed. . . .” (People v. Castellano (2019)
33 Cal.App.5th 485, 490; see also People v. Kopp (2019) 38
Cal.App.5th 47, 96 (Kopp), [“It is the defendant who bears the
burden of proving an inability to pay”], rev. granted Nov. 13,
2019, S257844.)8 Appellant’s failure to object on the basis of
Dueñas forfeited his challenge.
8In Kopp, the Supreme Court will consider two issues: “(1)
Must a court consider a defendant’s ability to pay before imposing
or executing fines, fees, and assessments? (2) If so, which party
31
Even before Dueñas, defendants had a statutory right to
challenge the imposition of a restitution fine exceeding the
statutory minimum of $300. Under section 1202.4, a defendant’s
inability to pay “may be considered only in increasing the amount
of the restitution fine in excess of the minimum fine [of $ 300].”
(§ 1202.4, subd. (c).) Here, the court imposed a $1,000 restitution
fine, well in excess of the $300 minimum, and appellant did not
object on the basis that he was unable to pay the fine or that he
was entitled to present evidence on his ability to pay. Appellant
likewise did not contest the court’s finding that he had the ability
to earn sufficient wages during his incarceration to pay the fine.
“Given that the defendant is in the best position to know whether
he has the ability to pay, it is incumbent on him to object to the
fine and demonstrate why it should not be imposed.” (People v.
Frandsen (2019) 33 Cal.App.5th 1126, 1154, citing People v. Avila
(2009) 46 Cal.4th 680, 729.) His failure to do so results in the
forfeiture of his appellate challenge.
Moreover, because appellant did not object to the $1,000
restitution fine based on his inability to pay it, “he surely would
not complain on similar grounds regarding an additional [$420]
in fees.” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)
Even if appellant had objected, an objection would not have been
well taken, as ability to pay is not synonymous with cash on
hand. (People v. Aviles (2019) 39 Cal.App.5th 1055, 1076.) The
trial court is permitted to consider a defendant’s ability to pay in
the future, including his or her ability to earn prison wages.
(Ibid.) Even at the low end of approximately $12 per month,
appellant’s prison term of 27 years to life will give him ample
bears the burden of proof regarding the defendant’s inability to
pay?”
32
time to earn enough to pay the assessed fines and fees. (See
ibid.) Any error in the court’s failure to provide him an ability to
pay hearing accordingly is harmless.
Appellant contends in the alternative that the $1,000
restitution fine is an unconstitutionally excessive punitive
sanction, and that defense counsel was ineffective in failing to
preserve both this and his Dueñas argument. We reject these
contentions in light of our conclusion that any error in the
imposition of the fines and fees was harmless.
IV. Errors in Sentencing Minute Order and Abstract
Appellant contends, and respondent agrees, that the
minute order documenting appellant’s sentencing hearing and
the abstract of judgment issued thereafter contain errors.
Specifically, the minute order reflects that appellant was
convicted on count four and acquitted on count five, when he was
in fact acquitted on count four and found guilty on count five.
The abstract of judgment is incorrect in that it does not reflect
the renumbering of the counts and incorrectly reflects that the
sentence on count four (renumbered as count three) was imposed
and stayed. We agree with the parties that these documents are
in error.
Where there is a discrepancy between the oral
pronouncement of judgment and the abstract of judgment or
minute order, the oral pronouncement controls, and we may order
correction of any such errors. (See People v. Mitchell (2001) 26
Cal.4th 181, 185.) We do so here. We order the minute order
modified to reflect that appellant was found not guilty of count
four and guilty of count five. We order the abstract of judgment
to reflect that appellant was sentenced to an indeterminate term
of 15 years to life on count seven, and the following determinate
33
terms: six years consecutive on count one, two years consecutive
on count two, two years concurrent on count three, two years
consecutive on count five, and two years consecutive on count six.
DISPOSITION
We modify the abstract of judgment to reflect that
appellant was sentenced to an indeterminate term of 15 years to
life on count seven, and the following determinate terms: six
years consecutive on count one, two years consecutive on count
two, two years concurrent on count three, two years consecutive
on count five, and two years consecutive on count six. We further
modify the sentencing minute order to reflect that appellant was
acquitted on count four and found guilty on count five. The
judgment of the trial court is affirmed in all other respects. The
trial court is directed to prepare an amended minute order and
abstract of judgment and forward a certified copy to the
California Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
CURREY, J.
34