Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 05F05687
MORRISON, J.
A jury found defendant Frank James guilty on one of four counts of lewd and lascivious acts with a child under the age of 14. (Pen. Code, § 288, subd. (a).) He was sentenced to the upper term of eight years in prison.
Defendant contends that the trial court committed judicial misconduct by disparaging defense counsel and aligning himself with the prosecution. He argues that it deprived him of federal and state constitutional rights to a fair trial, due process, and effective assistance of counsel. His claim is forfeited and, in any event, without merit.
Defendant also contends that the imposition of the upper term sentence for his conviction violated his constitutional rights to a jury trial and due process of law, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California(2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We disagree.
Factual and Procedural Background
The victim testified she visited her aunt, defendant (her aunt’s longtime companion), and cousins on June 25-26, 2005. Defendant and the victim watched a movie together on the living room couch. Everyone else in the home was asleep. While watching the movie, defendant rubbed the victim's vagina. She pretended she was asleep during the abuse, but afterwards, she ran upstairs, woke up her aunt, and told her about the abuse. The aunt and defendant took the victim to her grandmother’s home. The grandmother called the police.
At trial, defense counsel cross-examined the victim about her motivation for reporting the abuse.
“Q: What were you expecting to happen if you told Aunt Chrissie?
“A. That she would go downstairs and kick him out of the house.
“Q: You’re expectation, you were thinking, ‘If I tell Aunt Chrissie, she’s going[] to kick him out of the house and he'll be away from me.’
“A: Yes.
“Q: Is that fair to say?
“A: No.
“Q: Well, you said that you expected that Aunt Chrissie would kick him out of the house.
“A. Correct.”
The court interrupted and asked the reporter to read those three questions aloud. It struck the question, “[w]ell, you said that you expected [your aunt] would kick him out of the house[,]” as irrelevant, because defense counsel was asking the victim to validate his interpretation of the victim’s motivation for reporting the molestation to her aunt.
The trial court commented:
“THE COURT: Okay. Counsel, we’re not interested in your perspective of the questions and the answers as you question the witness. Your opinions are not evidence. [¶] . . . [¶]
“Now keep in [mind] you’re dealing with a 12-year old witness here. And if this persists, this isn’t the first time I let it pass, I’m going to interrupt every single time, even if the district attorney doesn’t.
“Ask your questions. Keep them pertinent and relevant. Now, read the last series of questions please, and delete the ones I’ve stricken and the jury is admonished to disregard that question and answer."
Following the People’s case-in-chief, defense counsel informed the court, outside of the jury’s presence, that he would not be calling the victim’s aunt to testify. Against defense counsel’s legal advice defendant did not want to call that witness. The aunt had indicated that, if called to testify, she would “probably take the Fifth.” The trial court informed defense counsel that obeying defendant’s wishes as to what witness should testify would not relieve defense counsel from being attacked as incompetent on appeal. Defense counsel clarified that he made a tactical decision to not call the witness. Any potential benefit that defendant could gain from the testimony was outweighed because the witness “does not want to testify and [is] going to take the Fifth.”
DISCUSSION
I
Defendant’s judicial misconduct claim is forfeited because he failed to object to the alleged misconduct. In any event, we reject the claim of judicial misconduct.
Defendant alleges two instances of misconduct. First, he argues that the trial court allied itself the prosecution by disparaging defense counsel during cross-examination of the victim. Defendant argues that when this alleged misconduct occurred, “the handwriting was on the wall for defense counsel[,]” and as such, it was futile for counsel to object. Second, defendant directs our attention to the exchange concerning whether the aunt would testify for defendant outside of the presence of the jury. Defendant argues that the court interfered with his attorney-client relationship, and betrayed its pro-prosecution bias. In his view, this second colloquy, seen in light of the court’s earlier comments, demonstrates that the trial court was biased in favor of the prosecution.
Judicial misconduct claims are not preserved for appellate review if no objections were made on that ground during the trial. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm); People v. Raviart (2001) 93 Cal.App.4th 258, 270 (Raviart); People v. Chong (1999) 76 Cal.App.4th 232, 243 .)Defendant failed to objection misconduct grounds. He has forfeited these claims.
Defendant cites exceptions to the rule, namely, “‘when an objection and an admonition could not cure the prejudice caused by’” misconduct (see, e.g., Sturm, supra, 37 Cal.4th at p. 1237; People v. Zammora (1944) 66 Cal.App.2d 166, 209 [no objection necessary where court ridiculed defense counsel for requesting error assignment in jury’s presence]), and when objecting would be futile, largely because the trial court has decided that it will not entertain any such objections. (See, e.g., People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 647-650; People v. Perkins (2003) 109 Cal.App.4th 1562, 1571-1572.)
The two colloquies between the trial court and defense counsel do not fit in either exception. First, neither alleged error is of the type which could cause incurable prejudice. Second, our review of the record does not disclose circumstances that could have led defense counsel to conclude that objecting “would have exposed [defendant] to greater prejudice.” Indeed, since the alleged disparagement before the jury was the first instance, there was no proverbial “handwriting on the wall” which would indicate that objecting was futile.
Were we to reach the issues we would find no judicial misconduct. The trial court’s initial comments were an effort to control the arguably argumentative mode of questioning that defense counsel was employing as to the child witness. Even if the point could have been made differently, the trial court’s comments were not intemperate or biased. The trial court’s comments about the decision not to call the aunt to testify were made outside the presence of the jury and therefore could not “‘discredit the defense or create the impression’” in the minds of the jurors that the court was allied with the prosecution. (Raviart, supra,93 Cal.App.4th at p. 269.)
II
Defendant next argues that the trial court committed Cunningham error by imposing an upper term based on facts that were neither found by the jury nor admitted by defendant. We disagree.
The probation report recited defendant’s criminal history, including convictions for fighting, obstruction of a peace officer, battery on a peace officer, felony evasion while possessing a loaded weapon in a public place, possession of a firearm by a felon, and some minor Vehicle Code violations. His performance was reported to be “totally unsatisfactory,” both on juvenile and adult probation, in that he continued to disobey the law. Similarly, he violated his parole and was returned to custody.
Defense counsel did not dispute the accuracy of the facts stated in the probation report, but disputed its recommended sentence as overly harsh.
Although the record indicates some other factors may have been considered, on appeal defendant asserts the trial court imposed the upper term for two reasons, namely, his numerous convictions as an adult and juvenile and because of his poor performance on probation and parole.
If a single factor used to aggravate a sentence complies with Cunningham, supra, 549 U.S. ___, the “statutory maximum” for that offense becomes the upper term, that is, it is not necessary that all of the aggravating factors relied on by the trial court comply with Cunningham. (People v. Black (2007) 41 Cal.4th 799, 812-816.) The aggravating fact of numerous prior convictions does not have to be found true by a jury. (Id. at pp. 818-820; see People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) Therefore, the trial court did not violate Cunningham when sentencing defendant.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., ROBIE, J.