People v. De Los Santos CA2/2 ( 2021 )

Filed 3/16/21 P. v. De Los Santos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303616
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA090769)
v.
CESAR DE LOS SANTOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Hilleri G. Merritt, Judge. Affirmed with
directions.
Spolin Law, Aaron Spolin and Caitlin Dukes for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and William H. Shin, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In an amended information filed by the Los Angeles
District Attorney’s Office, defendant and appellant Cesar
De Los Santos was charged with two counts of criminal threats
(Pen. Code, § 422, subd. (a); counts 2 & 5),1 three counts of
assault with a firearm (§ 245, subd. (a)(2); counts 3, 4, & 6), and
one count of vandalism over $400 in damage (§ 594, subd. (a);
count 7). As to counts 2 and 5, it was alleged that a principal was
armed with a firearm during the commission of the offenses
(§ 12022, subd. (a)(1)).
Defendant pled not guilty. During trial, the prosecutor
submitted on count 7 as a misdemeanor. After trial, the jury
found defendant guilty on all charges and found true the firearm
allegations on counts 2 and 5. He was sentenced to six years in
prison.
Defendant timely appealed. On appeal, he argues: (1) he
was denied due process and a fair trial because (a) the trial court
was biased against him and defense counsel and (b) the trial
court committed misconduct by repeatedly interrupting defense
counsel’s examination of witnesses and “[d]enigrating” defense
counsel in front of the jury; (2) prosecutorial misconduct compels
reversal; and (3) because the abstract of judgment erroneously
indicates that defendant was convicted on count 6 of criminal
threats, it must be corrected to accurately reflect his conviction
for violation of section 245, subdivision (a)(2), assault with a
firearm.
We agree with the parties that the abstract of judgment
must be corrected. In all other respects, the judgment is
affirmed.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL BACKGROUND
I. Prosecution evidence
On February 16, 2018, Yareth Herrera2 was at her house in
Los Angeles. Her father (Mario Rene Herrera), mother (Ana
Alvarez De Herrera), and three siblings (Lindsey Herrera, Allison
Herrera, and Aden Herrera) were also home.
At approximately 5:00 p.m. to 5:30 p.m., defendant went to
the Herreras’ house asking for Michael Herrera. Michael, who
was Mario’s son from a previous relationship, sometimes stayed
in the shed located behind the main house. Defendant said that
his name was “Cesar” and that he was Michael’s friend. Mario
told defendant that Michael did not live in the house. Defendant
insisted, “‘Yes, he’s here.’” Defendant eventually left.
At approximately 7:00 p.m., Yareth was in the front
bedroom when she heard someone knocking on the screen door.
Ana was on the bed nursing her infant son Aden. Mario was in
his bedroom and could hear the loud knocking. When the
knocking became increasingly louder, Ana opened the bedroom
window to see who it was. Defendant was standing outside
wearing a hoodie over his head.
Ana asked defendant what he wanted and he replied that
Michael owed him money. Defendant demanded payment of
Michael’s debt. He threatened to kill the family, and said, “‘You’ll
see what’s going to happen.’” He then left briefly and returned
with another man who was shorter and “chubb[ier]” than
defendant. The man left for a few seconds and came back with a
“large . . . long” black rifle approximately two to three feet long.
2 Because the family members share the same last name, we
refer to them by their first names. No disrespect is intended.
3
Defendant told the gunman to kill everyone. The gunman
pointed the weapon at Ana, Aden, and Yareth, and said that he
was going to kill them. Ana, who was holding Aden, went down
to the floor, and Yareth begged the gunman not to shoot. When
the gunman lowered the weapon, Yareth ran towards the
hallway. Ana also ran out of the room with Aden in her arms.
Yareth ran into her father in the hallway and told him that there
was someone at the door. She then went into her sister’s
bedroom and called the police. Yareth hid in the closet while she
was talking to the 911 operator.
The 911 call was played for the jury. During the call,
Yareth told the operator, “They’re gonna kill us right now with a
rifle.” Yareth also said, “There was a young man that came
. . . trying to kill us.” Yareth added that “they broke our window.”
And, she stated that “my half-brother owed them money and that
he was gonna come and kill us because of him.”
After the 911 call, Yareth was running through the hallway
when she saw the gunman throw a chair towards the bedroom
window. She heard the glass shattering. Ana was also in the
hallway when she heard things being thrown at the windows and
glass breaking. Mario also heard the windows breaking so he
went to the kitchen and retrieved a machete that he kept on top
of the refrigerator. Through the kitchen window, Mario saw
defendant standing outside the front door. Mario opened the
front door and stood guard behind the closed screen door while
holding the machete in his hand. The man who was breaking the
windows had a “short shotgun.” Mario saw the gunman raise the
weapon towards the bedroom window. Either defendant or the
gunman picked up a rock and threw it through the kitchen
4
window. Thereafter, they ran away. Before defendant left, he
said he was going to come back.
At approximately 7:30 p.m., Los Angeles Police Officer
Victor Salguero responded to the Herreras’ residence. Officer
Salguero interviewed Mario and Ana. They reported that one of
the men who had threatened their family had shown up earlier in
the day and that his name was Cesar. Yareth told Officer
Salguero that the gunman pointed the rifle at her family and
said, “‘Today is the day.’”
The entire incident was captured on the Herreras’ home
surveillance cameras. The video footage was played to the jury.
The man identified as defendant in the video footage had a
marijuana leaf tattooed on his right leg. At trial, the jury was
shown a photograph of defendant’s right rear calf with a
marijuana leaf tattoo. Yareth also reviewed the surveillance
footage from earlier in the evening and recognized defendant
walking back and forth on the side of her house. After the
incident, Yareth and Ana went outside and saw their front porch
chairs “all over the place,” and the bedroom and kitchen windows
broken. There was also a “very big rock” in the kitchen that used
to be on the front porch.
On February 20, 2018, Los Angeles Police Detective Bonnie
Lehigh showed the Herreras a six-pack photographic lineup.
Yareth identified someone other than defendant as the person
who first approached her bedroom window. Ana and Mario could
not identify anyone. Defendant’s photograph was not included in
this lineup.
5
On April 3, 2018, Detective Lehigh showed the Herreras a
second six-pack photographic lineup. This time, Yareth, Ana,
and Mario all identified defendant’s photograph as that of the
person who threatened to kill their family.
II. Defense
Defendant presented no evidence on his behalf.
DISCUSSION
I. Judicial Bias
Defendant contends that the trial court showed bias
against him by: (1) unnecessarily interrupting his trial counsel’s
examination of witnesses with needless sidebar conferences;
(2) disparaging trial counsel in front of the jury; and
(3) expressing animosity against defendant when he was late to
court.
A. Factual background
1. Interruptions during witness examinations
a. Michael is unavailable
Before trial, the trial court held an Evidence Code section
402 hearing with Michael during which he refused to answer any
questions. The trial court ultimately found him to be unavailable
as a witness. The prosecutor later asked whether defendant was
seeking to introduce third-party culpability evidence by
“proceed[ing] with the route [concerning] Michael Herrera.” The
trial court asked defense counsel whether he was “trying to bring
in third-party culpability . . . as your defense,” and counsel
replied, “No.”
b. Ana’s testimony; sidebar conferences;
Evidence Code section 402 hearing
Ana testified on direct examination that Michael was not
allowed to come into her house but sometimes stayed in the shed
6
located in the rear portion of her property. She described in
detail the specific location of various buildings on her property
and their access points from outside.
During the cross-examination, defense counsel asked Ana
whether she had seen Michael on her property on the day of the
incident. When Ana said no, defense counsel asked whether it
was possible that Michael had entered the property without her
knowledge “given the size of the compound.” The prosecutor
objected on relevance and speculation grounds, and the trial
court sustained the objections. Defense counsel rephrased his
question and asked Ana whether it was possible for someone to
enter the property without her knowledge if she had been inside
the house. The trial court again sustained the prosecutor’s
objection on grounds of speculation. When defense counsel began
asking a series of questions regarding the characteristics of
different entry points to the property, the trial court asked the
attorneys to approach for a sidebar conference.
At sidebar, the trial court asked defense counsel why he
was focusing on Michael since defendant was not pursuing a
third-party culpability defense. Defense counsel responded that
he was trying to find out who was on the property when the
incident occurred. The trial court asked defense counsel what
would be the relevance of whether Michael was on the property,
especially because Michael “will not make himself available” for
testimony. The trial court explained that “this trial is not about
Michael Herrera. He may have been the reason why they were
there, but all that these witnesses can testify to from what
they’ve said is that he wasn’t in that front house.” The trial court
added that asking a witness if something is possible is
speculative because “[j]ust about anything is possible.”
7
The trial court again asked counsel what the relevance was
under Evidence Code section 352 in asking whether Michael was
on the property if he was unavailable to testify and defendant
was not pursuing a third-party culpability defense. Defense
counsel insisted that he was “allowed to question the witnesses
on their abilities to perceive events” and “their abilities to
perceive who else may have been present at the time.”
The trial court ruled as follows: “[T]he only relevance
under [Evidence Code section] 352 to establish all the parameters
of the gate and someone hopping it and ingress and egress would
be if either, one, you’re doing a third-party culpability defense,
which you indicated in the very beginning you were not, or two, if
you’re trying to establish somehow Michael Herrera is a logical
witness who could have been called by the People when, in good
faith, they tried, and he won’t, but that can’t come before the
jury. [¶] . . . [¶] If you want to go into the compound and gate
heights and ingress and egress because you think that’s relevant
outside of the two arenas I’ve discussed, you can. I’m not going to
stop you. [¶] I came side-bar because I wanted to make sure you
weren’t going into territory that I think is unfair and, under my
rulings, improper because [] you’ve already conveyed to the court
and counsel a defense you’re not pursuing.”
As Ana’s cross-examination continued, defense counsel
asked the trial court to mark several photographs as exhibits, one
of which was a photograph of Michael taken from the
surveillance camera. Defense counsel explained that he wanted
to ask Ana whether she had seen the surveillance camera footage
showing Michael on the property even though she had testified
that she was not aware he had been there. The prosecutor
8
argued that such evidence would be irrelevant and likely to
confuse the jury.
The trial court ordered an Evidence Code section 402
hearing to explore any potential impeachment evidence.
During the evidentiary hearing, Ana testified that she did
not recall seeing Michael on her property on the day of the
incident. When defense counsel asked Ana whether she had seen
any surveillance footage showing Michael on her property, she
answered, “I don’t remember. No.” Defense counsel showed Ana
the photograph of Michael taken from the surveillance camera
and continued to ask her questions about it. At some point, the
trial court sustained the prosecutor’s objection for lack of
foundation and the following exchange took place:
“The Court: [Defense counsel], . . . I’m not quite sure. You
wanted to know—I don’t want to say this in front of the witness
because I want you to be able to have unbiased testimony. I don’t
think there’s anything more you can get from this photograph.
“[Defense counsel]: I’m sorry. I have to object, your Honor.
I don’t believe we established whether this witness understands
English. The purpose of your Honor talking without the
interpreter—I don’t understand what’s going on.
“The Court: I didn’t say anything.
“[Defense counsel]: You said you didn’t want to say this in
front of the witness because you might affect her testimony.
“The Court: I’m trying to speak very generically. The
objection was relevance . . . or lack of foundation. I’m sustaining
the objection. You asked what she recognized. She recognized
him standing so far.
“[Defense counsel]: I’m sorry. There was some other
further commentary, though. I didn’t understand.
9
“The Court: Ask your next question.”
Defense counsel resumed his examination and asked
several additional questions about the surveillance camera
system. The trial court then called for a sidebar conference and
asked the relevance of whether Michael had been on the property
earlier in the day when defendant was not pursuing a third-party
liability theory and the unavailability of Michael as a witness
could not be brought up in front of the jury. Defense counsel
responded that he was allowed to impeach the witness’s
credibility. The trial court repeatedly asked the relevance of this
line of inquiry under Evidence Code section 352. Defense counsel
insisted that the “relevance is whether or not she had knowledge
of that. She said she didn’t. If she actually did and said she
didn’t, then that goes to her credibility. It’s a conflicting
statement.”
Ultimately, the trial court ruled: “She said she doesn’t
remember. If you want to ask her that in front of the jury, if she
knows. If she was shown that surveillance video and she can’t
remember, that’s it.”
When the cross-examination resumed, defense counsel
asked Ana whether Michael was “present while you were there
that evening.” She answered, “No.” She reiterated, “I didn’t see
him [that evening].”
c. Mario’s testimony; sidebar conferences; trial
court objections
Mario testified that after the incident involving defendant,
he installed a block wall and a metal gate in front of his property
as “precaution . . . for people not to be able to access it easily.”
During cross-examination, defense counsel asked whether Mario
had built the new block wall and metal gate to prevent Michael
10
from coming onto the property, and Mario said no. When defense
counsel asked whether the police had responded to his residence
two days after the incident with defendant, the trial court called
for a sidebar conference.
The trial court asked defense counsel why he was inquiring
about a police investigation regarding Michael. Defense counsel
explained that he was entitled to establish that the police were
called out two days after defendant’s incident because Ana did
not want Michael on her property and that the new fence was
built because of the family’s fear of Michael, not defendant. The
trial court countered, “But that’s how [Mario] testified.” Defense
counsel argued that he should be able to point out to the jury that
Mario was being disingenuous. The trial court ruled that under
Evidence Code section 352, “this goes to weight, not
admissibility . . . . It can be explored only so far as two days
later, the police came because of Michael, but then we’re dropping
it.”
Defense counsel thanked the court, and said, “That’s all I
want to point out.”
When the cross-examination resumed, defense counsel
asked whether the police had shown up at his house on
February 18, and Mario answered, “Yes, several times, but I don’t
remember the date.” When defense counsel asked whether the
police had shown up because of Michael before the new wall was
built, the trial court interjected, “I’m vague as to time because
there have been several instances now testified to as to the police
being called regarding Michael. If you could just clarify.”
Defense counsel asked for a clarification and the trial court
stated, “I’m sustaining my own objection. It’s vague as to the
time. There’s been several instances of testimony about police
11
showing up because of Michael being there. Your question was
unclear as to time.”
Mario also testified that he built the new wall because his
children “didn’t feel safe before because anybody could access [the
property] easily.” When defense counsel asked whether the
children did not feel safe because of Michael or defendant, Mario
responded, “I built it for any . . . person.”
During the cross-examination, defense counsel also asked
Mario, “Did you tell the police at any point what [defendant’s]
last name was?” Mario responded, “No.” The prosecutor objected
and asked for a sidebar conference. Defense counsel stated, “I’m
going to object to the interruption.” The trial court requested a
readback of the last question and called the parties for a sidebar
conference.
The prosecutor expressed a concern that defense counsel
may be going into an area covered by the trial court’s ruling
concerning Michael’s unavailability. She explained that Mario
had learned defendant’s last name from Michael, and that
statement would be inadmissible hearsay. The trial court
ultimately ruled that defense counsel could ask Mario about how
he discovered defendant’s last name. Defense counsel asked the
court for permission to re-ask Mario whether he had given the
police defendant’s last name. The request was denied because
the trial court had already asked for a readback of the last
question. Then the following exchange took place:
“[Defense counsel]: It does interrupt the flow of my cross-
examination every time we come in the back . . . . Every time we
stop, it interrupts my flow with the witness. So if we’re just back
here saying—at the end of the day, the decision is, yeah, I can say
that, but we’ve spent 15 minutes talking about it and— [¶] . . .
12
[¶] it really interrupts the flow of my cross. . . . [I]t’s starting to
. . . interrupt with my ability at this point. I don’t understand
why we keep coming back.
“The Court: We can start doing this in front of the jury if
you’d like.
“[Prosecutor]: I’m entitled to make objections.
“The Court: The reason we come back here is because my
courtroom is such, the only place they’re not going to hear me is
back here. The whole point of the side-bar is that they not
overhear what we’re saying. [¶] If you want me to start making
the rulings in front of the jury, if I feel that I can, I will. Anyway,
you can explore, but do it quickly because it’s really irrelevant, at
the end of the day, how he got the last name. If you want to go
there, go there, but it’s going to be a short thing because this trial
is not about Michael Herrera.”
When the cross-examination resumed, defense counsel
asked no further questions on how the police learned about
defendant’s last name.
d. Detective Lehigh’s testimony; sidebar
conferences
While cross-examining Detective Lehigh, defense counsel
began asking a series of questions regarding the gunman who
was with defendant during the incident who was referred to as
the “‘chubby man’” throughout the trial. Defense counsel said,
“Let’s talk about the investigative actions that you took to locate
the chubby man,” and the prosecutor objected as irrelevant. The
trial court called for a sidebar conference and asked defense
counsel for the relevance for this line of inquiry. Defense counsel
explained that he wanted to inquire about the investigative
techniques used in this case. The prosecutor asserted that the
13
case was about defendant, not the chubby man. The trial court
disagreed with the prosecutor and said that the chubby man was
“front and center” in the case because the People’s theory of
liability for the assault charges against defendant was that he
was an aider and abettor. The trial court warned defense counsel
to stay away from any questions regarding Michael, but
overruled the prosecutor’s relevance objection as to the questions
related to the chubby man.
Defense counsel continued to cross-examine Detective
Lehigh regarding the efforts expended in locating the chubby
man. The trial court asked the parties to approach for a sidebar
conference and expressed a concern that Detective Lehigh
“appears confused,” and that she might get into possible gang
evidence, which the trial court had ruled inadmissible. Defense
counsel asked why they were having a sidebar conference. The
trial court explained: “Sometimes after [Evidence Code section]
402’s are done, a witness is questioned and doesn’t know how to
answer, that it might go into an area 402’d out. [¶] The detective
seems confused by questioning. I don’t know this case. I don’t
know if she’s going to blurt the way she found him or looked
through some sort of gang thing. I don’t know. I’m trying to
avoid any problem with the court’s prior ruling. [¶] . . . I’m
doing my best to make sure this case is as fair as possible. That’s
why we’re here.”
Defense counsel answered that he had no intention of
getting into any gang evidence and argued that if the trial court
was concerned about the witness going into an area that had
been ruled out, it should clear the courtroom and admonish the
witness not to do so. The trial court reiterated that it was trying
to make sure that everyone received a fair trial.
14
Detective Lehigh also testified that the rifle used was not
located. She did not attempt to obtain a search warrant for
defendant’s house, and she did not interview defendant because
she had assumed that he had a lawyer. She added that she
regretted not attempting to interview defendant.
2. Alleged disparaging treatment of defense counsel
in front of the jury
During trial, outside the presence of the jury, defense
counsel told the trial court that he had an issue that he wanted to
make clear on the record: “I would like to make it clear for the
record that I noticed yesterday, and some members of . . . my
client’s family came up to me, my own client, myself, I noticed it,
and my paralegal, there are times throughout this trial where
your Honor has rolled her eyes at me and made voice inflections
like you just did indicating some sort of disapproval of me or
something. If my client’s family sees that and my client and I
noticed it, I’m worried that the jury notices that. [¶] So I’m going
to ask that your Honor please . . . not speak in voice inflections,
rolling eyes, and . . . I’m afraid that it could affect my client
getting a fair trial.”
The trial court denied the accusations: “So now that you’ve
put this at issue on the record, let me make the record very, very
clear. . . . [¶] I make sure that it is a very fair trial. I am not
saying or doing anything. We all know what happened on the
record yesterday in chambers, [defense counsel]. The jury has no
idea. It will not affect how I deal with your client. I will always
make sure that when an attorney does something they’re not
supposed to do, I will not in any way, shape, or form take that out
on the client. It’s not fair and it’s not right. [¶] But to sit here
and impugn me that [way] because maybe you don’t like my
15
rulings or maybe you feel things are or are not going your way,
somehow I am inserting myself or doing something, it is
offensive, and I do believe that it is unwarranted. [¶] I want the
record to be clear, I don’t roll my eyes. I am not speaking in any
particular way. . . . [¶] So I want the record to be very clear that
I disagree. I don’t roll my eyes. I’m not 16. You may not like
what I say, but I make sure when the jury is present, that neither
side has any advantage or disadvantage over one another.”
During Detective Lehigh’s cross-examination, the following
exchange took place:
“[Defense counsel]: Isn’t it true that you could have
authored a search warrant to go to [defendant]’s house as soon as
he became a suspect based on the information that you have?
“[Detective Lehigh]: I could have, but I did not.
“[Defense counsel]: You didn’t do that because you thought,
‘That was two months ago. It was a long time ago,’ right?
‘Something could have changed,’ right?
“[Detective Lehigh]: Yes, as I’ve already indicated.
“[Defense counsel]: Right. So why bother. [¶] Now,
you also—
“[Prosecutor]: Objection, argumentative.
“The Court: Okay. It’s really important, [defense counsel],
to just ask questions. Make no commentaries on the evidence,
please.”
3. Alleged animosity towards defendant
After the case was submitted for the jury’s deliberation, the
trial court ordered defendant to “stay until 4:00. That’s when the
jury is going to break. Then you’re ordered to return here
tomorrow morning at 9:00 a.m. without any further order, notice,
or subpoena.” The trial court asked defense counsel to be
16
“available tomorrow within a half-hour of the court,” and counsel
responded that he would.
The following day, the jury resumed deliberations at
9:13 a.m. At 10:15 a.m., the trial court held a hearing to address
a jury question. Defense counsel appeared telephonically, but
defendant failed to appear. The trial court noted, “We cannot
find [defendant], even though he was told to wait in the hallway.
He’s not there, according to my bailiff.”
At 10:36 a.m., when defense counsel arrived in person, the
trial court called the matter on the record with defendant still
being absent. The trial court discussed defendant’s absence as
follows: “To give a little history, I ordered him back yesterday at
9:00 a.m. He was not here. We called [defense counsel].
[Defendant] was under the mistaken opinion that he could be on
call like his attorney. [¶] [Defense counsel] did get ahold of
[defendant]. [Defendant] did show up around 9:30, 9:40. He was
told by my bailiff to wait in the hallway, and he has now taken
himself out of the . . . courthouse to get a cup of coffee. We were
told it was a five-minute time estimate ten minutes ago. [¶] I am
taking this verdict with or without [defendant]. This is not the
mall. This is a court of law, and he’s treating it like the most
casual thing in the world, and I find that offensive, [defense
counsel]. [¶] This is not on you. You’re not your client. He
knows exactly what he needed to do. I ordered him back. Then
he was told to wait in the hallway, and he decided he was going
to go grab a cup of joe, so I’m not going to wait anymore.”
At that point, the bailiff informed the trial court that
defendant had entered the courthouse. When defense counsel
asked for an opportunity to respond to the trial court’s comments,
the trial court said, “I’m not going to do this. We’re going to wait
17
for your client. We’re going to bring the jury out. They’ve been
waiting for the better part of half an hour after buzzing they have
verdicts, and we’re going to get your client in and hear what the
verdicts are.” Counsel again asked for an opportunity to respond
and the trial court allowed him to do so. Counsel argued that
defendant had been “present and prompt for every proceeding
and every hearing of this trial.” He also said, “[Defendant] left
the hallway to get a cup of coffee because he’s awaiting a verdict
with his family.”
The trial court corrected counsel and said that defendant
had left the building, not the hallway, and that he had been
ordered to be in court at 9:00 a.m. Counsel argued that
defendant should be given “the benefit of the doubt,” and that
“this is being a little overblown.” The trial court responded, “I
don’t think I’m blowing it out of proportion. . . . When I order
someone back, I expect them back. When they’re told not to leave
the building, I don’t think it’s unreasonable to feel he is
disrespecting the court.”
B. Applicable law
A criminal defendant “has a due process right to an
impartial trial judge under the state and federal Constitutions.
[Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1111,
disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151.) The constitutional right to due process
“requires a fair trial in a fair tribunal before a judge with no
actual bias against the defendant or interest in the outcome of
the case. [Citation.]” (Ibid.) “[W]hile a showing of actual bias is
not required for judicial disqualification under the due process
clause, neither is the mere appearance of bias sufficient. Instead,
based on an objective assessment of the circumstances in the
18
particular case, there must exist ‘“the probability of actual bias
on the part of the judge or decisionmaker [that] is too high to be
constitutionally tolerable.”’ [Citation.]” (People v. Freeman
(2010) 47 Cal.4th 993, 996.) “[I]t is the exceptional case
presenting extreme facts where a due process violation will be
found. [Citation.]” (Id. at p. 1005.)
In reviewing a claim of judicial misconduct or bias on
appeal, the appellate court must assess whether any misconduct
or bias that is proven was so prejudicial as to deprive the
defendant of a fair trial. (People v. Guerra, supra, 37 Cal.4th at
p. 1112.) “Indeed, ‘[o]ur role . . . is not to determine whether the
trial judge’s conduct left something to be desired . . . . 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.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 78.)
C. No forfeiture
The People assert that defendant forfeited this contention
on appeal because he did not object below.
“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.) That
said, “[a] claim of pervasive judicial bias does not necessarily
require an objection to be preserved because such an objection
may be futile.” (People v. Banks (2014) 59 Cal.4th 1113, 1177,
abrogated on another ground in People v. Scott (2015) 61 Cal.4th
363, 391, fn. 3.)
Here, the appellate record demonstrates that defendant did
object after the trial court had pulled counsel aside several times.
That said, we note that defense counsel did not expressly object
on the grounds of judicial bias. But, based upon the tense
19
dialogue between the trial court and defense counsel, defense
counsel likely believed that an objection on the grounds of judicial
bias would have been futile. (People v. Sturm (2006) 37 Cal.4th
1218, 1237.) Accordingly, we turn to the merits of defendant’s
arguments.
D. The trial court’s conduct and comments do not
demonstrate improper bias
Defendant first contends that the trial court acted as a
“de facto second prosecutor” by repeatedly lodging its own
objections to defense counsel’s questioning and holding “needless
sidebars” that “discredited” defense counsel in front of the jury
and hampered his ability to effectively examine witnesses. To
the contrary, the record shows that the trial court treated
defendant and his counsel fairly and the sidebar conferences were
necessary to ensure a fair trial.
Most of the instances cited by defendant as exemplifying
the trial court’s alleged bias involved defense counsel’s attempts
to introduce evidence related to Michael. Specifically, the first
sidebar conference during Ana’s testimony occurred because of
defense counsel’s attempts to inquire about Michael’s access to
the property and whether he could have been present during the
incident. The second sidebar conference, which occurred during
Ana’s Evidence Code section 402 hearing, was also triggered by
defense counsel’s questions about the surveillance camera
capturing Michael’s presence on the property. As to Mario’s
testimony, the first sidebar conference involved defense counsel’s
questions on whether Mario had installed a new block wall
because of Michael, while the second sidebar conference was to
discuss how Mario had learned about defendant’s last name from
Michael.
20
However, as the trial court repeatedly reminded defense
counsel, any evidence related to Michael was irrelevant because
he was found unavailable as a witness and defendant was not
pursuing a third-party culpability defense.
The trial court has the duty “to control all proceedings
during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a
view to the expeditious and effective ascertainment of the truth
regarding the matters involved.” (§ 1044; see People v. Ybarra
(2008) 166 Cal.App.4th 1069, 1080–1081, overruled in part on
other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354 [trial
court properly exercised its broad discretionary power to control
the proceedings in the courtroom]; People v. Carlucci (1979) 23
Cal.3d 249, 255 [trial court has a statutory duty to control trial
proceedings, including the introduction and exclusion of
evidence].) Since the trial court’s concerns for the admissibility of
any evidence related to Michael were justified based on its
pretrial evidentiary rulings and defense counsel’s prior
statements about the defense strategy, the sidebar conferences
were necessary to ensure a fair trial and did not demonstrate any
judicial bias.
The same is true of the sidebar conferences held during
Detective Lehigh’s testimony. The first sidebar conference was
triggered when the prosecutor objected to defense counsel’s
questions about “the investigative actions” related to the “chubby
man.” During the sidebar conference, the trial court asked for
the relevance of such evidence and defense counsel explained that
he wanted to explore the investigative techniques used in this
case to locate the chubby man. The trial court ultimately agreed
with defense counsel and found that the questions were relevant
21
because the chubby man was “front and center” in this case since
defendant was being prosecuted on an aider-and-abettor theory of
liability. The second sidebar conference was held after the trial
court noticed that Detective Lehigh appeared to be “confused”
and it became concerned that the witness might possibly get into
gang evidence, which had already been ruled inadmissible.
During the conference, defense counsel assured the trial court
that he had no intention of getting into any gang evidence.
In both of these instances, the record demonstrates that the
trial court was properly exercising its broad discretionary power
to control the proceedings and ensuring that defendant received a
fair trial. (See People v. Ybarra, supra, 166 Cal.App.4th at
pp. 1080–1081; People v. Carlucci, supra, 23 Cal.3d at p. 255.)
Defendant also contends that the trial court disparaged
defense counsel in front of the jury when it admonished counsel
to “[m]ake no commentaries on the evidence”, and engaged in
“non-verbal displays” of “dissatisfaction and annoyance with
defense counsel.” However, the trial court’s admonishment to
defense counsel to refrain from making personal commentaries
on the evidence was necessary because counsel did make a
sarcastic comment regarding Detective Lehigh’s failure to seek a
late search warrant. As to defendant’s allegations that the trial
court repeatedly rolled its eyes and used verbal cues to express
disapproval of defense counsel, the trial court adamantly denied
such behavior. Although defense counsel stated that defendant’s
family members and his paralegal had observed the trial court’s
alleged intemperate behavior, no witnesses testified to
corroborate counsel’s accusations. Indeed, the record fails to
demonstrate that the trial court behaved in an inappropriate
manner.
22
Finally, defendant contends that the trial court
demonstrated animosity towards him when he “was late
returning from the break because he had briefly left the
courthouse.” However, defendant’s description fails to accurately
portray the magnitude of his disrespectful and disruptive
behavior.
After the presentation of evidence had been completed and
the matter had been submitted to the jury for deliberation, the
trial court ordered defendant to return the next day at 9:00 a.m.
The following day, defendant was late and arrived at
approximately 9:30 a.m. to 9:40 a.m. Despite the bailiff’s
instruction to remain in the hallway, defendant left the
courthouse to get coffee and failed to be present for a hearing to
discuss a jury question at 10:15 a.m. Defendant finally returned
to the courthouse sometime after 10:36 a.m. Because of
defendant’s failure to obey the trial court’s orders, the jury had to
wait for approximately 30 minutes after notifying the trial court
that it had reached a verdict.
In light of defendant’s tardiness and lackadaisical attitude
towards the trial court and the jury, the trial court’s response to
defendant’s brazen behavior was hardly “exaggerated”, but was
rather amply justified and well within its broad authority to
control the trial proceedings. (People v. Ybarra, supra, 166
Cal.App.4th at pp. 1080–1081.) Therefore, defendant’s judicial
bias claim fails.
23
E. Any error was harmless
Even if the trial court had erred, which it did not, any
alleged error would have been harmless under any standard of
review. (People v. Sturm, supra, 37 Cal.4th at p. 1244.)
The record does not reveal that the trial judge repeatedly
belittled defense counsel in front of the jury, unduly favored the
prosecution, or created the impression that it was aligned with
the prosecution. (Compare People v. Sturm, supra, 37 Cal.4th at
pp. 1233, 1234–1236, 1238 [trial court “engaged in a pattern of
disparaging defense counsel and defense witnesses in the
presence of the jury, and conveyed the impression that he favored
the prosecution by frequently interposing objections to defense
counsel’s questions”].) In addition, in its instructions, the trial
court admonished the jury to “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.” Jurors are
presumed to have followed the court’s instructions. (People v.
Young (2005) 34 Cal.4th 1149, 1214.)
Moreover, the evidence against defendant was
overwhelming. Yareth, Ana, and Mario all testified that
defendant went to their house with another man armed with a
rifle and threatened to kill the whole family if they refused to pay
Michael’s debt. All three witnesses identified defendant out of a
photographic lineup. And, the entire incident was captured on
the victims’ home surveillance cameras. Given the abundance of
evidence establishing defendant’s guilt, any alleged error by the
trial court was harmless.
24
II. Prosecutorial Misconduct
Defendant claims that the prosecutor committed
misconduct during closing arguments by disparaging defense
counsel and accusing him of calling her names.3
A. Factual background
1. Prosecutor’s closing argument
During the closing argument, the prosecutor began by
stating, “I’m not going to go through every piece of evidence in
detail, but I’m going to give you a brief summary of what the
evidence has showed so far.” She first summarized the evidence
chronologically, and then discussed the applicable law on each of
the criminal charges.
Towards the end of her argument, the prosecutor stated
that she expected defense counsel to argue that the police
investigation in this case was less than perfect: “Now, I am not a
mind reader, but I anticipate when the defense gets up here, he
will speak to you at some length about the police investigation
and that he will allege the investigation was subpar or not as
good as it should be, so I want to take a moment to pause. [¶] I
will admit the investigation was not perfect in this case. No case
I’ve had ever, [was it]. We are human beings. The police are
human beings. As Detective Lehigh has acknowledged, there are
things she could have done and things, in retrospect, she learned
from.” The prosecutor concluded her argument by reminding the
jury that the case was not about the police but whether defendant
was guilty of the charged crimes beyond a reasonable doubt.
3 Defendant also argues that the trial court allowed the
prosecutor to disparage defense counsel during her closing
arguments by refusing to admonish the jury to ignore those
remarks.
25
2. Defense closing argument
During the defense closing argument, counsel spent most of
his time discussing the police investigation and its shortcomings.
He discussed Detective Lehigh’s failure to obtain a search
warrant to search defendant’s residence or to obtain an interview
from defendant by assuming that he would “lawyer up.” Defense
counsel also criticized the decision not to look for the rifle used
during the incident. He highlighted the conflicting testimony
from the prosecution witnesses and argued that there was no
corroborating evidence.
While discussing the concept of reasonable doubt, defense
counsel said, “I want to talk about reasonable doubt. I’m not
going to bother talking about the law because there’s so much
doubt. Reasonable doubt is not an impossible thing. It’s easy to
prove. They did it.” Defense counsel argued that although the
prosecutor had proven beyond a reasonable doubt that defendant
was at the Herreras’ house twice on the day of the incident, she
had failed to prove that defendant had committed any crime.
While discussing the charge of criminal threats, defense
counsel stated, “You know, the D.A. did something in this case
that I thought was a little disingenuous, and I want to talk about
it.” He pointed out that the prosecutor had shown the jury a
photograph of the house taken on October 21 that showed a wall
installed after the incident. Defense counsel argued, “[T]he
district attorney decided it would be a good idea to show that
[Mario] built a wall [around] his house because he’s so afraid of
[defendant]. [¶] I thought, wait a second. First of all, why is it
even relevant? Why does it matter? That doesn’t help you guys
decide if he did anything on February 16th. She said she wanted
26
to do this, and I realized, I know why she’s doing it. She wants to
show you guys that [Mario] is afraid still of [defendant].”
3. Rebuttal
On rebuttal, the prosecutor began by saying that during his
argument, defense counsel “basically personally attacked both
Detective Lehigh and myself. He called me a name. He said I
was disingenuous. And I think it’s unfortunate when attorneys
do that to each other. That’s not how I practice law.” Defense
counsel objected, and the trial court overruled the objection,
instructing the jury that “argument is just that. It’s the
argument of counsel. You will ultimately decide what the
evidence in the case is.”
The prosecutor then argued that defense counsel had failed
to “argue the evidence because they’re not on his side . . . .” She
responded to defense counsel’s argument about the evidence of a
new wall built by Mario: “So counsel says that I put a picture up
that was misleading and, somehow, I was trying to manufacture
fear from the witnesses. Ladies and gentlemen, I’m just going to
refer you back to the evidence. You heard that 911 call. You
heard the fear in Yareth’s voice. You saw and heard from the
witnesses about how scared they were. I did not need to
manufacture anything. [¶] . . . The reason this is relevant is
that’s an element of the crime. That’s why we’re talking about
this stuff. Sustained fear is an element of criminal threats.”
The prosecutor continued to respond to defense counsel’s
strategy of attacking the inadequacy of police investigation
rather than focusing on the facts of the case: “I will remind you
that counsel said, quote-unquote, ‘Never mind about the law.’ I
couldn’t believe that when I heard that. Never mind about the
27
law? That is exactly what we’re here for. You are here to
determine if the law has been broken.
“So the fact that he did not even address the law or address
any of the facts is further evidence that it’s because he has no
argument because I have proven each of these charges beyond a
reasonable doubt.
“I want to stress this. I said this again before. This is not
about what should have happened. Detective Lehigh is not on
trial. [Defendant] is. And what counsel wants you to do—and
this is, unfortunately, . . . sometimes a tactic that is sometimes
used—is he wants you to speculate. He wants you to think what
if, what if, could that be possible. He wants you to make
assumptions.
“You’re actually not allowed to do that. The judge
instructed you, you are not to speculate, you are not to
assume. . . . So what counsel’s doing is he’s encouraging you to go
against the law, and that is not proper.”
The prosecutor later added, “when the defense said that the
chubby man ran away because Mario Herrera showed a
machete. . . . This was maybe the most flagrant instance of
defense asking you to speculate. There is no evidence of that.
There is no evidence that that is why the chubby man ran away,
okay?”
4. Defense objection
After the jury began deliberating, defense counsel said that
the “district attorney told the jury no less than two times that I
had called her names during my closing argument.” Counsel
acknowledged that he had called the prosecutor “disingenuous,”
but insisted that he “did not call her a name.” The trial court
denied defense counsel’s request for a curative instruction as
28
follows: “Again, I’ve already instructed them that what each of
you say is not evidence, and I’m not going to sit here and separate
hairs as to whether calling someone ‘disingenuous’ is a name. It’s
calling them something. I’m not saying that’s right or wrong. I’m
saying that’s how the argument came out. That’s what was
argued in rebuttal to the jury. [¶] So I am declining your
invitation to say anything to the jury. I already instructed them
what you say is not evidence.”
B. Applicable law
The standard governing review of prosecutorial error
claims is well-settled. “A prosecutor’s conduct violates the
Fourteenth Amendment of the federal Constitution when it
infects the trial with such unfairness as to make the conviction a
denial of due process.” (People v. Morales (2001) 25 Cal.4th 34,
44.) “Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.”
(Ibid.)
When attacking the prosecutor’s remarks to the jury, the
defendant must show that, “‘[i]n the context of the whole
argument and the instructions’ [citation], there was ‘a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. [Citations.]’”
(People v. Centeno (2014) 60 Cal.4th 659, 667.) In conducting this
inquiry, the reviewing court does not lightly infer that the jury
drew the most damaging rather than the least damaging
meaning from the prosecutor’s comments. (Ibid.)
A prosecutor has wide latitude during closing argument
and may argue the case vigorously as long as the argument
29
amounts to fair comment on the evidence and the reasonable
inferences or deductions therefrom. (People v. Samayoa (1997) 15
Cal.4th 795, 841.) But “‘[a] prosecutor commits misconduct if he
or she attacks the integrity of defense counsel, or casts aspersions
on defense counsel.’ [Citations.]” (People v. Edwards (2013) 57
Cal.4th 658, 738.) Personal attacks on defense counsel are
impermissible and irrelevant to the issues before the jury.
(People v. Friend (2009) 47 Cal.4th 1, 30; People v. Sandoval
(1992) 4 Cal.4th 155, 183–184.)
However, a prosecutor may give his or her opinion on the
state of the evidence, vigorously attack the defense case, and
focus on the deficiencies in defense counsel’s tactics and factual
account. (People v. Redd (2010) 48 Cal.4th 691, 735.) During
summation, counsel may state matters not in evidence, but which
are common knowledge or are illustrations drawn from common
experience. (People v. Hill (1998) 17 Cal.4th 800, 819.) A
prosecutor may also “‘use appropriate epithets warranted by the
evidence.’” (People v. Fosselman (1983) 33 Cal.3d 572, 580; see
also People v. Hill, supra, at p. 819.)
Any trial court rulings on prosecutorial error are reviewed
for abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718,
792–793.)
C. Forfeiture
The People argue that defendant forfeited this argument on
appeal.
Typically, “‘[t]o preserve for appeal a claim of prosecutorial
misconduct, the defense must make a timely objection at trial
and request an admonition; otherwise, the point is reviewable
only if an admonition would not have cured the harm caused by
the misconduct.’” (People v. Silva (2001) 25 Cal.4th 345, 373.)
30
Here, defendant objected to the prosecutor’s comments
regarding defense counsel’s accusations of calling her
disingenuous. The trial court promptly admonished the jury that
arguments from counsel were not evidence. However, defendant
failed to object to or seek an admonition for any other comments
made by the prosecutor. And, there is nothing in the appellate
record indicating that an objection or a timely request for an
admonition would not have cured any potential harm.
Therefore, defendant forfeited his prosecutorial error claim
as to any comments made without an objection.
For the sake of completeness, we turn to the merits of
defendant’s arguments.
D. Prosecutorial error
Defendant argues that the prosecutor committed
misconduct4 during her rebuttal argument by disparaging
defense counsel and falsely accusing him of calling her names.
However, when viewed in context, the prosecutor’s rebuttal was a
fair response to specific arguments raised by defense counsel
during his closing argument.
4 We agree with the People that because there is no evidence
that the prosecutor intentionally or knowingly committed the
alleged misconduct, defendant’s claim should be characterized as
one of prosecutorial “error” rather than “misconduct.” (People v.
Hill, supra, 17 Cal.4th at p. 823, fn. 1 [“We observe that the term
prosecutorial ‘misconduct’ is somewhat of a misnomer to the
extent that it suggests a prosecutor must act with a culpable
state of mind. A more apt description of the transgression is
prosecutorial error”]; see also ABA House of Delegates,
Resolution 100B (Aug. 9-10, 2010) [adopting resolution urging
appellate courts to distinguish between prosecutorial “error” and
“misconduct”].)
31
Regarding the prosecutor’s comments that defense counsel
had “personally attacked” her by calling her “disingenuous”, they
were made in direct response to defense counsel’s argument that
“the D.A. did something in this case that I thought was a little
disingenuous.” In fact, after the arguments concluded, defense
counsel admitted that he had called the prosecutor disingenuous.
Since the prosecutor was responding directly to an argument
made earlier by defense counsel, the comments did not constitute
prosecutorial error. (See People v. Linton (2013) 56 Cal.4th 1146,
1206 [no prosecutorial error where “[t]he prosecutor’s comments
responded directly . . . to earlier arguments made by defense
counsel”].)
Regarding the remaining comments at issue, they were
made in response to defense counsel’s arguments concerning the
defense strategy of attacking the inadequacies of the police
investigation rather than focusing on the evidence presented. As
stated earlier, the majority of defense counsel’s argument focused
on Detective Lehigh’s failure to search defendant’s house, to
interview defendant after his arrest, to search for the missing
rifle, and to locate defendant’s accomplice—the “chubby” man.
The prosecutor’s comment that defense counsel had “personally
attacked” Detective Lehigh was in response to his repeated
arguments that Detective Lehigh had conducted a mediocre
investigation despite her extensive law enforcement experience.
The prosecutor was entitled to remind the jury that despite the
apparent shortfalls during the police investigation, defendant
was the one on trial, not Detective Lehigh.
The same is true of the prosecutor’s comments about the
use of a photograph depicting the new block wall Mario built
around his house after the incident. Defense counsel argued to
32
the jury that the prosecutor was disingenuous in using a
photograph of the wall built after the incident to prove that the
victims remained in sustained fear when the criminal threats
were made on the day of the incident. The prosecutor’s argument
that she did not try to “manufacture fear” was a proper response
to defense counsel’s accusation that she was being disingenuous,
and constituted a fair comment on the evidence presented at trial
to prove the sustained fear element of the criminal threats
charge. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
Defendant also takes issue with the prosecutor’s comments
that defense counsel had suggested the jury “[n]ever mind the
law” and “speculate” about the evidence. Although defense
counsel did not use these exact words, he did state to the jury,
“I’m not going to bother talking about the law because there’s so
much doubt” while discussing the concept of reasonable doubt.
As to the comments about speculation, the prosecutor was simply
reminding the jury that defendant’s guilt had to be decided solely
based on the evidence presented at trial, not on speculation on
what additional evidence the prosecutor could have presented.
When considered in the context of the overall defense
strategy, “the prosecutor’s comments were not a personal attack
on defense counsel, but a critical response to his arguments, and
thus a ‘fair rebuttal’ to the defense theory that the case was
about” the inadequacies of police investigation. (People v.
Woodruff (2018) 5 Cal.5th 697, 766.) The prosecutor did not err
or commit misconduct.
E. Harmless error
Even if the prosecutor had erred, which she did not, the
alleged error was not prejudicial. (People v. Arias (1996) 13
Cal.4th 92, 161.) The comments were brief, unrepeated, and
33
relatively mild. (People v. Kipp (2001) 26 Cal.4th 1100, 1130
[improper appeal for sympathy for the victim did not result in
denial of due process where “prosecutor’s comment was brief,
mild, and not repeated”]; People v. Martinez (2010) 47 Cal.4th
911, 957; People v. Mendoza (2007) 42 Cal.4th 686, 704.)
Moreover, the trial court instructed the jury that it had to
decide the case based only on the evidence presented at trial, and
not to let bias or sympathy influence its decision. The jury was
also instructed that evidence is the sworn testimony of witnesses
and exhibits admitted into evidence, and not what the attorneys
say. And, the trial court told the jury that “argument is just that.
It’s the argument of counsel,” after defense counsel objected to
the prosecutor’s rebuttal argument. We presume the jury
followed these instructions. (See People v. Edwards (2013) 57
Cal.4th 658, 764 [presuming jury will follow instruction that
statements of attorneys are not evidence]; People v. Bryden (1998)
63 Cal.App.4th 159, 184 [“Further, the court instructed the jury
that questions and statements by the attorneys do not constitute
evidence, and the jury is presumed to follow the court’s
instructions”].)
Furthermore, as set forth above, the evidence of
defendant’s guilt was overwhelming.
Under these circumstances, defendant has not established
prejudice justifying reversal under either the state law test,
requiring a reasonable likelihood of a more favorable verdict but
for the alleged misconduct (People v. Seumanu, supra, 61 Cal.4th
at p. 1344), or the federal standard because the prosecutor’s
comments were harmless beyond a reasonable doubt (People v.
Cook (2006) 39 Cal.4th 566, 608).
34
III. The Abstract of Judgment is Corrected
Defendant contends that the abstract of judgment does not
correctly reflect his conviction on count 6. The People agree.
Defendant was convicted on count 6 of violating section
245, subdivision (a)(2), assault with a firearm. However, the
abstract of judgment incorrectly indicates that defendant was
convicted of “Criminal Threats” on count 6. Consequently, the
abstract of judgment should be corrected to accurately reflect
defendant’s conviction.
DISPOSITION
The judgment is affirmed. The trial court is directed to
correct the abstract of judgment to reflect defendant’s conviction
on count 6 for violating section 245, subdivision (a)(2), assault
with a firearm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
35