Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Ct. No. 03SF0600, Gary S. Paer, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
ARONSON, J.
A jury convicted Sheila Marie Sikat of 55 counts of child sexual molestation, including sodomy of a person under age 14, lewd acts upon a child, oral copulation of a person under 14 years of age, anal or genital penetration by a foreign object of a person under 14 years of age, and using the victim to film sexual conduct involving a minor. (Pen. Code, §§ 286, subd. (c)(1); 288, subd. (a); 288a, subd. (c)(1); 289, subd. (j); 311.4, subd. (c), hereafter § 311.4(c); all further statutory references are to the Penal Code unless otherwise noted.) The victim was defendant’s four-year-old niece, Y.S. Defendant challenges the sufficiency of the evidence to support her conviction for filming sexual conduct by a minor. Specifically, she argues the child victim must be conscious during filming so that he or she can engage in the “posing or modeling” prohibited by statute. (§ 311.4, subd. (c).) In other words, there is no violation if the offender poses or models an unconscious or passively involved child. Defendant also argues the trial court’s comments at the sentencing hearing revealed both an appearance of bias against her requiring disqualification (Code Civ. Proc., § 170.1) and a probability of bias infringing her right to due process. As we explain below, defendant’s contentions are without merit. We therefore affirm the judgment.
Defendant raised a third contention in her opening brief, arguing the trial court’s imposition of consecutive sentences constituted judicial factfinding violating the Sixth Amendment (cf. Apprendi v. New Jersey (2000) 530 U.S. 466), but she acknowledges in her reply brief that the United States Supreme Court has resolved the issue against her (Oregon v. Ice (2009) 555 U.S. ___ [129 S.Ct. 711]). Consequently, we do not address the issue further. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
I FACTUAL AND PROCEDURAL BACKGROUND
An acquaintance housesitting for defendant while she honeymooned with her husband, David Hwang, discovered a stash of more than 50 homemade videotapes depicting Hwang engaged in sexual acts, including some in which he sexually molested children as young as eight months old. The acquaintance recognized Y.S.’s name on the label of one of the tapes and, to her horror, found the taped depicted Hwang, defendant, and Y.S. engaged in sex acts. The acquaintance and two friends made a compilation of some of the videos to turn over to authorities. They feared Hwang would become suspicious if they removed any of the original tapes.
Rancho Santa Margarita police deputies arrested defendant and Hwang at their home in September 2003. The police and the prosecutor later interviewed Y.S.’s mother, Emma, at the district attorney’s office. According to Emma, defendant had not sought to babysit Y.S. overnight until she became involved with Hwang. Defendant babysat Y.S. overnight four or five times, the last time in January 2003. Emma never suspected any abuse; she was shocked and angry at her sister and Hwang, and also blamed herself because “if I didn’t let them have my kid, maybe it won’t happen.” Emma did not view the videotapes, but the prosecutor told her generally of their contents.
We use Emma’s first name for clarity, ease of reference, and to shield the identity of Y.S., who has a different last name than defendant. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1; Cal. Style Manual (4th ed. 2000) § 5.9.)
The videotapes showed Hwang and defendant engaged in sexual intercourse or oral copulation with each other while Hwang repeatedly molested Y.S., fondling her, orally copulating her, inserting his finger and writing instruments (pens) into her rectum, and in one instance sodomizing her. Defendant operated the camera while Hwang sodomized Y.S., and retrieved a towel for him when he ejaculated.
Y.S. appeared to be deeply asleep or unconscious during the molestations, though her body twitched when Hwang inserted a pen or his finger into her rectum. One tape showed Hwang directing defendant, who was bathing with Y.S., to give the girl some “medicine”; Y.S. later appeared unconscious. In another scene, Hwang asked defendant if Y.S. was “‘out enough yet.’” Y.S. woke up on one occasion but defendant laid on top of her until she fell asleep again. In one of the videotaped episodes, Y.S. awakened, began crying and grabbing her genitals, and left the bed.
Facing 60 sex crime counts involving Y.S., Hwang pleaded guilty to the charges in exchange for an indeterminate sentence of 50 years to life. He faced similar charges for similar acts with a girlfriend and a child in Texas; some of his victims had not been identified by the time of trial. In his plea agreement, Hwang admitted he accompanied defendant to Y.S.’s house to pick the child up, ostensibly for babysitting, but actually to commit lewd acts on her. Once home, he mixed Rohypnol, a sedative that can lower inhibitions and induce partial amnesia, in a drink for defendant. According to Hwang, defendant did not know about the Rohypnol and later confronted him angrily. Believing she suspected he had videotaped sex acts with Y.S., he dissuaded her from contacting authorities by telling her she was on the tape too.
Hwang persuaded defendant to have Y.S. stay again. Over several weeks, he and defendant molested the girl three times. He videotaped the incidents so he could later watch how he and defendant “violat[ed] that little girl.” For the most part, Hwang controlled the camera and defendant assisted him. Hwang did not want Y.S. to know she was being abused, but denied sedating her. He claimed the “medicine” defendant gave Y.S. in the bathtub was Tylenol mixed with chocolate milk. Hwang did not find it odd Y.S. remained unconscious when he penetrated her with foreign objects and his finger, claiming “she was a pretty heavy sleeper.” Hwang testified that when he sodomized Y.S., defendant encouraged him to “‘put it in her butt.’” Defendant orally copulated him and had sexual intercourse with him while he molested Y.S. The videotapes showed defendant and Hwang whispering to each other at times during these acts.
Defendant and two defense experts testified. Defendant denied knowing Hwang intended to molest her niece during the girl’s first overnight stay. Defendant claimed she did not recall what happened that night, believing she had been drugged. She admitted Hwang suggested a “threesome” with Y.S. the second time she stayed over, and defendant had concluded Hwang touched Y.S. on the earlier occasion. Defendant claimed she became hysterical, protesting against potential sex acts with Y.S., but Hwang struck her. According to defendant, she avoided drinking alcohol to keep her wits about her that evening. On cross-examination, she admitted she was “sort of aware” of Hwang’s sexual activities with Y.S. the second night, but believed Hwang drugged her; otherwise, she would have protected Y.S. She did not confront Hwang about the abuse.
Ettie Rosenberg, a licensed pharmacist, testified defendant’s demeanor and behavior in the videotapes were consistent with having been moderately sedated with psychoactive drugs, but admitted defendant’s “detachment” and passivity might also occur in someone “stone cold sober.” Rosenberg admitted the videotapes depicted defendant as responsive and capable of engaging with Hwang and Y.S.; she orally copulated Hwang when he asked her for a “‘blow’” and appeared responsive during intercourse with Hwang. Rosenberg testified that Y.S.’s reaction of merely flinching when sodomized indicated “heavy, heavy sedation.”
Defendant admitted telling Dr. Martha Rogers in an interview that her “‘problem was not memory, but the difficulty in having to talk about what happened.’” Rogers concluded defendant would not have engaged in the scenarios in the videotapes without Hwang overriding her inhibitions, but observed defendant “took initiative” by laying on Y.S.’s body until she fell back asleep. Rogers noted defendant moved Y.S.’s body on another occasion and interacted consciously with Hwang by orally copulating and having sexual intercourse with him; the pair whispered to each other at times. Defendant told Rogers in her interview: “‘For some reason, when this happened, I was just passive. Not that it brings back the memories, but I felt like a child. I am doing what he is asking me. Not that I was scared. Something just snapped inside me that night, made me helpless. I did what I was told.’”
The jury convicted defendant of all 55 counts alleged against her.
At defendant’s sentencing hearing, the trial court observed her offenses precluded probation and her maximum potential sentence exceeded 100 years. The trial court continued, “My initial reaction is that this case warrants a very substantial sentence,” but concluded it would “defer commenting on any specific number until I read everything and hear all the comments by the respective parties.” The prosecutor described the case as “unusual” because the victim’s mother would speak on behalf of defendant and four jurors agreed to testify at sentencing.
The first juror related nightmares tracking the facts of the case: “a little girl... awakens in the middle of being brutally raped by some thing that goes beyond description, certainly not worthy of being included in the category of human being.” (Italics added.) The juror concluded defendant was not a “monster,” but “she did a monstrous, monstrous thing” to a defenseless child. Disturbed by defendant’s casual demeanor in the face of “what her husband is doing,” the second juror characterized defendant as “totally devoid of conscience.”
The third juror concluded: “I don’t think she’s the monster that we’ve made her into. The monster was her husband.” The juror “believe[d] she was involved in a circumstance that was beyond her control,” having a “very, very powerful boyfriend” who provided security, friends, money, a car, a “nice house to live in,” all of which she would be “putting at risk by blowing the whistle on him.” The juror conceded defendant “was the victim’s champion, and she didn’t do anything.”
The fourth juror described how the facts of the case were so grave and so appalling he could not work for a week after the verdict and suffered nightmares about Hwang’s conduct and defendant’s failure to protect her niece. The trial court reiterated counseling services were available to the jurors, and noted: “Let’s face it. This is a stressful case. And to watch that video, some God awful things on that video. You know as well as I do, because we were in the same room at the same time.”
Defendant’s pastor, Dr. Vince Arnoldo, testified on defendant’s behalf. After speaking at length of good and evil, the pastor pleaded that defendant be released “to serve the people she has wronged.... She cannot pay her debt to her family by languishing in jail.... Unfortunately, oh Judge, putting her in jail will not bring healing to her damaged family. In fact, it further pains the family, because they know [defendant] is not evil. They know she was a victim of her evil husband.” When Arnoldo concluded, “Sheila is not evil. She can still be rehabilitated outside of jail,” the trial court responded, “You haven’t seen the tape, though.” The court added: “I think if you saw the tape, you would see a lot of evil.” The pastor responded by asking the court to be merciful.
After defendant’s sister, Emma, introduced herself as the victim’s mother, the trial court queried, “Aren’t you furious?” Emma responded, “I was, but I’m here to let you know that” before she met Hwang, defendant “was actually a good person.” When Emma added that she did not want to see the video, the trial court responded, “I think if you saw it, you may have a different perspective of your sister.” Emma acknowledged, “Maybe,” noting “my daughter is living a normal life. She doesn’t have any recollection of it. She actually made an honor list at school.” In the remainder of her testimony, Emma spoke only 14 words sandwiched between the court’s numerous observations filling more than six transcript pages.
The trial court expressed relief to hear of Y.S.’s well-being, but returned to the theme that Emma had not viewed the videotapes. The court commented: “[I]f you watched the tape and you watched your sister in action, I think there would be no way you could stand up and look me in the eye and say she didn’t do anything wrong. [¶] There was one video where she was giving your daughter a drink of something and she kept saying ‘Finish it, finish it. Doesn’t it taste good? Finish it, finish it.’ Then within 15 minutes, your daughter is passed out, nude on the bed on her stomach with your sister rubbing her back while her husband is doing some outrageous things to your daughter. [¶] So your comments to me are — they are educated comments, but they are not fully educated, because you are only going by what people told you. [¶] And that’s why anyone who wants to make a comment about this case — about this defendant’s involvement, the co-defendant’s involvement, how evil is one as compared to another, only the people that have seen that tape could really make a proper assessment.”
The court again acknowledged, “So when you tell me about certain things and how you feel, I respect that. And I do — I admire your courage, too, for being here and also supporting your sister.” While “people have told you David did this and David did that,” the court emphasized, “[Y]our sister is the one that came to you and said to you, ‘Oh, let’s take [Y.S.] to the park or baby-sitting’ when she knew that she was going to basically feed your child to the wolves. That is such an aggravating factor.” The court observed, “It’s not like she just threw your child in the room and then left the house and said, ‘Hey, I don’t know what went on.’ She’s on tape, she’s doing things, she’s preparing your child to get unconscious. [¶]... [¶]... And then, what’s even worse, is after your daughter would wake up after being molested for a couple hours and after having pens inserted into her rectum and after having her husband’s fingers going up her rectum and in her vagina, among thousands of other things that I could spend the next hour talking about, she would then dress up your daughter, clean her all up, have her come out of this unconsciousness and bring her home as if nothing had happened. In some ways, you are a victim, too. [¶] So I just share that with you because you don’t see the full picture, because you didn’t see the tape. And I think you are trying to avoid reality by not watching the tape. I would almost bet that if you watched that tape and saw what your sister did, that would be the last time you talked to your sister.”
Attempting to impress the gravity of the offenses on Emma, the court noted, “Most people would want to invoke violence on someone who did this.” The court explained: “I have to say that I was — I read the paper and I was watching the news about this case. Larry Welborn, from The Register, he covered this case at the beginning. I believe he’s still covering it. He had a blog on the internet. [¶] And I can’t even tell you how many people responded to that blog, and they were so outraged.... After I read the 14th response on this case, I basically stopped looking at it, because it all said the same thing. People want the death penalty for your sister. They are saying how come there isn’t a death penalty for doing these types of things? [¶] So that just shows you how outrageous this case is.”
At the court’s prompting, Emma acknowledged she “was mad” at her sister, but she focused on “[j]ust looking at my daughter right now, since she’s okay.” The trial court responded, “But the fact that your daughter — God willing — is okay,... does that just mean that what your sister did is okay, too? In other words, if your daughter wasn’t okay, would you then have a different position?” The trial court concluded: “The fact remains that your sister betrayed you in a major league way by taking your daughter away from you, subjecting her to all sorts of things, being involved in these God awful things, and the returning [Y.S.] to you as if they went to the park, the movies, the mall, out to get ice cream, whatever, when it was something evil. [¶] And the record is clear that this wasn’t a one-time thing. I could understand your position like oh, wow, this just happened, and she had no control over it. But the jury heard that this was a continuous event or scheme where they would pretend that they were baby-sitting, but they were bringing your child back to the house to molest your child.”
When the trial court finished speaking, Emma stated, “Nothing more to say.”
Another of defendant’s sisters also testified on her behalf, and so did defendant’s aunt. The trial court continued the hearing by stipulation of the parties. When the matter resumed two weeks later, defendant contended the trial court’s comments at the earlier hearing demonstrated bias and moved to disqualify the judge. The court denied the motion.
Following argument, the trial court imposed a determinate sentence of 50 years, comprised of a midterm of six years for sodomy (§ 286, subd. (c)), a consecutive term of 22 years for 11 counts of anal or genital penetration by a foreign object of a minor under 14 years of age (§ 289, subd. (j)), a consecutive term of 20 years for 10 counts of oral copulation of a minor under 14 years of age (§ 288a, subd. (c)(1)), and a consecutive term of two years for using a minor to film sexual conduct (§ 311.4, subd. (c)). The sentence also included concurrent terms of three years each on 15 additional counts of anal or genital penetration by a foreign object of a minor under 14 years of age (§ 289, subd. (j)), plus two concurrent low terms of 16 months for additional filming counts (§ 311.4(c)), and concurrent low terms of three years each on 13 counts of committing a lewd act upon a child (§ 288, subd. (a)). Defendant now appeals.
II DISCUSSION
A. The Statute Does Not Require a Victim to Pose or Model Actively or Consciously
Defendant claims the fact she and Hwang videotaped their sexual conduct with Y.S. while the girl was unconscious absolves defendant of guilt on several charges. Specifically, defendant asserts she is entitled to reversal of her conviction on five counts under section 311.4(c) because Y.S.’s unconscious state prevented her from posing or modeling. According to defendant, the statute “requires that the minor be ‘engaged in,’ or otherwise actively participate in the filming process by ‘posing or modeling[.]’” (Italics added.) Put another way, given that Y.S. was unconscious, defendant challenges the sufficiency of the evidence to support the conclusion she posed or modeled for the videotapes in the manner defendant insists is necessary under section 311.4(c). Defendant’s interpretation of the statute is erroneous.
In construing a statute, our purpose is to give effect to the Legislature’s intent. (People v. Coronado (1995) 12 Cal.4th 145, 151.) Where the words used by the Legislature in the enactment are clear and unambiguous, there is no need for construction and courts should not indulge in it. (People v. Edwards (1991) 54 Cal.3d 787, 810.) The plain meaning of the statutory language controls. (Coronado, at p. 151 [“‘“the Legislature is presumed to have meant what it said”’”].)
As relevant here, section 311.4(c) subjects to felony punishment “[e]very person who,” with knowledge or imputed knowledge a victim is under age 18, “knowingly promotes, employs, uses, persuades, induces or coerces [the] minor... to engage in or assist others to engage in either posing or modeling alone or with others for purposes of preparing any representation..., data, or image, including, but not limited to, any... videotape... that contains or incorporates in any manner... sexual conduct by a minor... alone or with other persons or animals....” (Italics added.)
The prohibited sexual conduct ranges from “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer” to “actual or simulated sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner,... any lewd or lascivious sexual act as defined in [s]ection 288, or excretory functions performed in a lewd or lascivious manner....” (§ 311.4, subd. (d).)
The statute is clear: it “‘prohibits the employment or use of a minor... in the production of material depicting that minor in “sexual conduct”’” (People v. Cochran (2002) 28 Cal.4th 396, 402),whether for commercial (§ 311.4, subd. (b)) or noncommercial purposes (§ 311.4(c)). Defendant attempts to engraft a requirement the victim must “actively” or “consciously” pose or model for the defendant, but the Legislature omitted those terms. (Cf. Code Civ. Proc., § 1858 [judicial role “is... not to insert what has been omitted, or to omit what has been inserted”].) The victim need not be aware he or she is being filmed. (People v. Hobbs (2007) 152 Cal.App.4th 1, 6-7 [finding § 311.4(c) applied to defendant who videotaped disrobing female athletes through a locker room peephole].) In Hobbs, the defendant had, in effect, posed his victims in front of his camera by arranging cones, caution tape, and handwritten signs that blocked off portions of the locker room out of the camera’s view. (Id. at p. 4.)
Seizing on the word “engage” in section 311.4(c), defendant asserts the victim must be engaged mentally — in other words, conscious — as the defendant manipulates or physically poses the victim’s body before the camera. But defendant’s construction falters because she isolates “engage” from its surrounding terms and because the Legislature did not use the past participle, adjectival form, i.e., “engaged,” nor did it include the word mentally or any similar adverb to modify “engage.” (See People v. Black (1982) 32 Cal.3d 1, 5 [“words must be construed in context”]; People v. Louen (1997) 17 Cal.4th 1, 10-11 [grammar may aid in disclosing legislative intent].)
Rather, the Legislature used “engage” as a verb in the phrase “to engage in,” which commonly means “to take part” in or “participate.” (Webster’s 3d New Internat. Dict. (1993) p. 751.) Notably, by specifying an offender may not “use” the victim “to engage in” the depiction of prohibited sexual conduct (§ 311.4(c)), the Legislature made clear the victim’s role need only be passive, not active. Indeed, the victim need not engage in any posing or modeling whatsoever. To the contrary, the statute is violated where the minor is used “to... assist others to engage in either posing or modeling....” (§ 311.4(c), italics added.) Under these plain terms, a minor, whether conscious or unconscious, may not be used as a prop or a plaything by other actors in a recorded scene involving child sexual conduct. Here, there is no dispute defendant and Hwang appeared in their videotaped molestations of Y.S. Consequently, ample evidence supports the conclusion their body movements for the camera satisfied the posing or modeling element of section 311.4(c).
B. Defendant Fails to Establish an Appearance or Probability of Judicial Bias
1. Preliminary Observations and Standard of Review
Defendant contends the trial court created an impression of bias at her sentencing hearing by interrupting two defense witnesses, while treating prosecution witnesses more favorably, and by referring to online comments about her case that called for the death penalty for her child molestation offenses. The Attorney General correctly notes defendant forfeited her statutory claim of bias against the trial court (Code Civ. Proc., § 170.1 [disqualification for cause]) because she failed to seek writ review within 10 days of the trial court’s denial of her disqualification motion at the sentencing hearing (Code Civ. Proc., § 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 333 (Brown)). No such bar precludes review of her constitutional claim, however. (Brown, at p. 334 [writ requirement does not bar “nonstatutory due process claims of judicial bias”].)
Despite defendant’s forfeiture, we also reach the merits of her statutory claim of judicial bias because she asserts her attorney rendered ineffective assistance of counsel (IAC) in not preserving the issue. As we explain, defendant’s IAC claim fails because it is not reasonably probable, based on the objective standard governing her bias claim, that a nonpartisan observer would discern an appearance of bias in the trial court’s actions. In other words, her claim would have failed even if her attorney had preserved her bias claim. (See Strickland v. Washington (1984) 466 U.S. 668, 697-698 [party asserting IAC must establish a reasonable probability of a more favorable outcome absent attorney’s allegedly deficient omissions].) Consequently, any error by her attorney in failing to seek disqualification timely in the trial court or by writ review did not prejudice defendant. (See id. at p. 697 [reviewing court need not determine whether counsel’s performance was deficient before turning to prejudice prong; lack of prejudice nullifies IAC claim].)
“‘The party claiming bias bears the burden of establishing facts supporting its position. [Citation.]...’” (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 162; Betz v. Pankow (1993) 16 Cal.App.4th 919, 926 (Betz).) The burden is no small hurdle: the facts must “clearly... establish[]” the requisite bias. (People v. Chatman (2006) 38 Cal.4th 344, 363 (Chatman).) Of course, a “‘party’s unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute-resolving tribunals.’” (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1034; see United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 106, fn. 6 [perspective of “the partisan litigant emotionally involved in the controversy” does not control].)
Instead, claims of judicial bias must be measured by an objective yardstick. (Chatman, supra, 38 Cal.4th at p. 363.) Consequently, “where the facts are undisputed,” as here, “the disqualification of the judge becomes a question of law rather than of fact.” (Evans v. Superior Court (1930) 107 Cal.App. 372, 376 (Evans); Brown, supra, 6 Cal.4th at pp. 336-337; Flier v. Superior Court (1994) 23 Cal.App.4th 165, 171 (Flier); accord, Caperton v. A.T. Massey Coal Co., Inc. (2009) __ U.S. __ [129 S.Ct. 2252, 2263, 2265] (Caperton) [objective standard governs federal due process inquiry into “probability” of judicial bias].)
2. Defendant’s Statutory Claim for Disqualification Is Without Merit
Defendant asserts she would have prevailed on her statutory claim to disqualify the trial judge if her attorney had sought writ review. The claim lacks merit. Based on our de novo review under the applicable, objective standard (Chatman, supra, 38 Cal.4th at p. 363; Evans, supra, 107 Cal.App. at p. 376), we conclude the trial court properly denied her motion. (Code Civ. Proc., § 170.4, subd. (b) [trial court may strike disqualification motion “if on its face it discloses no legal grounds for disqualification”].)
The statutory provision governing disqualification for judicial bias establishes an objective test for removing a court officer from a case. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii)).) The objective test asks simply whether “a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality.” (Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 319 (Briggs).) Put another way: “Where the average person could well entertain doubt whether the trial judge was impartial, appellate courts are not required to speculate whether the bias was actual or merely apparent, or whether the result would have been the same if the evidence had been impartially considered and the matter dispassionately decided [citations], but should reverse the judgment and remand the matter to a different judge.... [Citations.]” (Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247.)
Because we presume in favor of the trial court’s integrity (Chatman, supra, 38 Cal.4th at p. 364) and, given the trial court’s duty to sit on cases before it (Flier, supra, 23 Cal.App.4th at p. 170), we remain mindful of the Supreme Court’s admonition that “[c]ourts must apply with restraint statutes authorizing disqualification of a judge due to bias.” (In re Scott (2003) 29 Cal.4th 783, 817; see Flier, at p. 170 [“‘Judicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified’”].)
(a) The Trial Court’s Comments Did Not Create an Appearance of Bias
Here, defendant discerns an appearance of bias in the trial court’s treatment of witnesses who testified at the sentencing hearing concerning aggravating and mitigating circumstances. (§ 1204.) Defendant observes the trial court “was very courteous to the jurors who came to speak for the prosecution, stating that he ‘welcome[d] their comments’ and that ‘their input would be very probative and relevant.’” Noting the witnesses who spoke on her behalf received no similar welcome, defendant does not suggest the trial court was discourteous to her witnesses, but complains the court interrupted two who spoke in favor of mitigation, Pastor Arnoldo and defendant’s sister, Emma. The court’s solicitude for the jurors, however, furnishes no basis for a claim of bias. Jurors interrupt their lives to provide an essential service to the administration of justice, so it is hardly surprising to see judges and court personnel display courtesy to these citizens. Citing such treatment as evidence of bias betrays a partisan, even paranoid, stance at odds with the requisite objective standard. The claim is meritless.
Nor, for several reasons, do the court’s purported interruptions “clearly... establish[]” an appearance of bias (Chatman, supra, 38 Cal.4th at p. 363). First, the trial court has inherent authority to manage the proceedings before it. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267; see also Code Civ. Proc., § 128, subds. (a)(3) & (a)(5).) Nothing about the trial court’s manner of conducting the proceedings or interacting with the mitigation witnesses would suggest bias to a disinterested observer. Second and related, the record does not support the characterization the trial court “interrupted” the mitigation witnesses. Rather, the trial court waited until the end of Pastor Arnoldo’s comments before observing, “You haven’t seen the tape, though.” Nor did the trial court interrupt Emma, merely posing at the outset of her testimony the question, “Aren’t you furious?” The question was entirely proper, since a trial judge does not sit as a potted plant but, to the contrary, is constitutionally authorized to comment on the evidence. (Cal. Const., art. VI, § 10.) Indeed, the court may call and interrogate witnesses. (Evid. Code, § 775; People v. Carlucci (1979) 23 Cal.3d 249, 256.) Apprised of the court’s authority, a nonpartisan observer would not reasonably discern bias in the question the trial court put to Emma, nor in the court’s observation Pastor Arnoldo had not viewed the videotapes.
Additionally, a trial court’s challenged conduct or comments must be read in context, not parsed or attacked in isolation. (Flier, supra, 23 Cal.App.4th at pp. 171-172.) The fact that the pastor concluded his remarks by stating “Sheila is not evil” and “She can still be rehabilitated outside of jail” naturally prompted the trial court to observe that “if you saw the tape, you would see a lot of evil.” The trial court merely sought to correct the pastor’s misplaced call for probation by referring to the videotaped acts that precluded the court from granting probation. For her part, Emma repeatedly noted that she also had not viewed the videotapes. This prompted the trial court to explain that her failure to view the videotapes lessened the impact of her mitigating statements on defendant’s behalf. No reasonable observer would draw an inference of bias from the court’s explanation.
Defendant suggests a nonpartisan observer would have detected bias at the hearing because the trial court’s comments to the witnesses “prevented [defendant] from fully presenting her case in mitigation....” Indeed, defendant accuses the trial court of violating the Code of Judicial Ethics by “fail[ing] to behave respectfully to witnesses who spoke on appellant’s behalf,” which in turn compromised her “right to be heard.” (See Cal. Code Jud. Ethics, canon 3B(4) [“A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others”] & canon 3B(7) [“A judge shall accord to every person who has a legal interest in a proceeding... full right to be heard according to law”].)
The record, however, shows no judicial discourtesy to any witnesses and does not support defendant’s claim of a chilling effect arising from the court’s comments. As noted, the trial court did not interrupt Pastor Arnoldo in any manner, let alone rudely. Instead, the court held its comments until Arnoldo concluded his testimony.
And while the trial court greeted Emma with a question at the beginning of her testimony and commented extensively on the content of the videotapes throughout the course of her remarks, the court did so courteously and nothing suggests the court prevented her from saying all she wished on her sister’s behalf. To the contrary, the gist of Emma’s testimony was clear: she blamed Hwang for the offenses against her daughter, forgave her sister for her role, and preferred a lenient sentence to a harsh one.
Defendant suggests the trial court caused Emma to “g[i]ve up speaking on appellant’s behalf.” Contending “Emma finally gave up, saying, ‘Nothing more to say,’” defendant asserts the court’s extensive comments about the videotapes “shut down Emma’s testimony completely....” But defendant made no offer of proof below that Emma intended to say more, nor has she suggested what more Emma might have said. There is no evidence the trial court did anything to suppress testimony on defendant’s behalf. Recognizing the trial court’s role to sentence the defendant with full authority to comment on the evidence, we cannot say a reasonable observer would discern bias in the trial court’s comments at the hearing. Put simply: “Expressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are not evidence of bias or prejudice. [Citation.]” (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031.) In sum, measured by the applicable, objective standard, the trial court’s comments reveal no hint of an appearance of bias.
(b) The Trial Court’s Reference to a Blog Created No Appearance of Bias
Defendant contends an appearance of bias arose from the trial court’s reference to an Orange County Register blog article. Specifically, defendant contends an objective bystander would discern bias in the trial court’s observation that numerous reader posts commenting on the article called for the death penalty for child molestation offenses like defendant’s. The claim is without merit.
Defendant complains the trial court failed to follow its own instructions to the jury, noting the court repeatedly admonished the jurors during the trial to avoid media references to the case. The court instructed the jury, for example, “[Y]ou must not allow anything that happens outside of the courtroom to affect your decision. During the trial, do not read, listen to, or watch any news report or commentary about the case. [¶] I have been told that the press has covered this case.... It may be in the newspaper, it may be on T.V. [¶] So... if you are reading The Register or The Times and... you see something that relates to this case, you need to actually turn the page or cover it or prevent yourself from reading the article. That’s a tough thing to do, but I’m going to ask you to do it. [¶]... [¶] Do not use a dictionary, the internet, or other reference materials. Going home and doing google searches, the clearest example of jury misconduct.”
The trial court explained to the jury that “these rules are there to ensure that both sides get a fair trial. That the jury — the lawyers know that the jury that goes into that jury room, they are deciding the case only on the evidence that was presented to everyone inside the courtroom, not what some juror figured out at home through another party or through the Internet. So again, no independent investigation.” The trial court had admonished during jury selection that “the kiss of death would be reaching for an electronic keyboard that’s connected to your computer at home. Internet surfing. Completely prohibited.”
The irony of the trial court’s conduct is not lost on us. The relevant inquiry in this appeal, however, is whether the trial court’s reference at sentencing to the blog entry and reader comments would “clearly... establish[]” (Chatman, supra, 38 Cal.4th at p. 363), in the eyes of a disinterested observer, an appearance of bias. The observer must be “aware of all the facts” (Briggs, supra, 87 Cal.App.4th at p. 319), which include the detail that, in our system of justice, the trial court regularly rules on the admission or exclusion of inflammatory evidence (see e.g., §§ 954, 1098; Evid. Code, §§ 1108, 1109). Even where the trial court determines evidence must be excluded as too inflammatory to be presented to jurors (Evid. Code, § 352), the court, with knowledge of the excluded evidence, is nevertheless entrusted to sentence the defendant fairly if convicted (see Harris v. Rivera (1981) 454 U.S. 339, 346 (Harris) [“judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions”]).
Here, though the trial court identified the author and source of the blog article on a readily accessible newspaper site, defendant does not include the entry in the record. (See People v. Barton (1978) 21 Cal.3d 513, 519 [appellant’s duty to provide record adequate for review].) For all we know, the article may have — like defendant’s mitigation witnesses — pinned most of the blame on Hwang. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“All intendments and presumptions are indulged” in favor of upholding trial court].) True, defendant focuses on the comments appended to the blog, in which readers called for the death penalty for these heinous acts. But an informed, objective observer would discern in these comments nothing new or of any tendency to sway a judicial mind, knowing judges are regularly exposed to similar calls for vengeance from the public. Specifically, the comments could come as no surprise to an experienced bench officer because ample caselaw illustrates that public sentiment occasionally produces a capital sentencing regime for these cases. (See, e.g., Kennedy v. Louisiana (2008) 554 U.S. __ [128 S.Ct. 2641] (Kennedy) [striking down death penalty for child rape].) But the example of uniform precedent forbidding the death penalty for all offenses but murder (ibid.; see, e.g., Coker v. Georgia (1977) 433 U.S. 584) girds the judicial mind to discount such sentiment. Consequently, no reasonable observer would conclude anonymous, internet blog comments injected material of any novelty or import into the judge’s consideration.
Defendant insists the trial court’s review of the blog material violated applicable norms for judicial conduct. She cites authority barring ex parte communication with the judge at sentencing. (§ 1204; Cal. Rules of Court, rule 4.420(b); Cal. Code of Jud. Ethics, canon 3B(7).) Section 1204 provides that sentencing factors “shall be presented by the testimony of witnesses examined in open court.... No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section.” (See also Cal. Rules of Court, rule 4.420(b) [“The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing”].) The California Code of Judicial Ethics provides, in relevant part, that “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding [with some inapplicable exceptions].” (Cal. Code Jud. Ethics, canon 3B(7); see ibid., Advisory Comm. com. to canon 3B(7) [“A judge must not independently investigate facts in a case and must consider only the evidence presented unless otherwise authorized by law”].)
We do not condone the trial court’s reference to the blog or blog comments during the sentencing hearing, but “[t]he role of a reviewing court ‘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.’” (People v. Harris (2005) 37 Cal.4th 310, 347.) Defendant’s arguments do not carry the day for two reasons. First, the blog or blog comments do not constitute “ex parte communications” or “independent investigation” within the meaning of the foregoing authorities. The blog material was not a “communication.” Neither party presented the material to the court without the other party’s knowledge, as generally occurs with ex parte communications. To the contrary, neither party had any knowledge of the judge’s conduct and appear to have been equally surprised. Nor does reading the blog or blog comments seem tantamount to “investigation” when they yielded merely, as discussed, a public sentiment well known to all judicial officers.
Second, and more to the point, the blog incident does not “clearly... establish[]” bias. (Chatman, supra, 38 Cal.4th at p. 363.) The relevant question for our determination is whether a nonpartisan observer would discern an appearance of bias in the trial court’s knowledge of, or reference to, the content of the blog and reader responses. But as discussed, defendant has failed on appeal to produce the content of the blog article and the blog responses revealed only typical public sentiment, adding nothing the trial court did not already know from countless other reported cases.
Defendant complains she had no opportunity to respond to the blog article or reader comments. But her mitigation witnesses represented the counterargument to a harsh sentence and, as noted, the trial court did not interfere with their testimony. Moreover, apprised of judicial familiarity with Kennedy and other cases capturing public sentiment favoring the death penalty for child molestation and, in any event, knowing judges are presumed to ignore inadmissible material (Harris, supra, 454 U.S. at p. 346), however inflammatory (Evid. Code, § 352), we see no possibility a nonpartisan observer would find an appearance of bias in the trial court’s brief reference to an internet blog. Entitled to comment on the evidence, the trial court properly attempted to impress upon Emma the seriousness of her sister’s crimes. Measured by the applicable, objective standard for rooting out an appearance of bias, the trial court’s conduct furnishes no reason to overturn defendant’s sentence. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii)). In other words, defendant’s claims “simply do not support a doubt regarding [the judge’s] ability to remain impartial.” (People v. Coffman (2004) 34 Cal.4th 1, 50.)
3. Defendant’s Due Process Claim Is Also Without Merit
Defendant’s federal due process claim similarly fails. The high court recently reiterated that “‘most matters relating to judicial disqualification [do] not rise to a constitutional level.’” (Caperton, supra, 129 S.Ct. at p. 2259.) Indeed, until Caperton, the court had “recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge: when the judge has a financial interest in the outcome of the case, and when the judge is trying a defendant for certain criminal contempts. Vaguer notions of bias or the appearance of bias were never a basis for disqualification, either at common law or under our constitutional precedents. Those issues were instead addressed by legislation or court rules.” (Id. at p. 2267 (dis. opn. of Roberts, J.); see, e.g., 28 U.S.C. § 455(a) [providing statutory basis for disqualification or recusal where judge’s “impartiality might reasonably be questioned”].)
In Caperton, the court found a due process violation where a newly-elected West Virginia Supreme Court judge declined to recuse himself in a case where the party appealing a $50 million adverse judgment contributed $3 million to the judge’s campaign to unseat the incumbent. The contribution dwarfed by a million dollars the combined amount spent by both candidates’ campaign committees. (Caperton, supra, 129 S.Ct. at p. 2264.) The court explained “objective standards may... require recusal whether or not actual bias exists or can be proved.” (Id. at p. 2265.) Rather, due process necessitates recusal or disqualification where “‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” (Id. at p. 2257, italics added; cf. Hackethal v. California Medical Assn. (1982) 138 Cal.App.3d 435, 443 [under state due process guarantee, “[d]isqualification may... be necessary if... human experience teaches that the probability of actual bias is too high to be constitutionally tolerable”].) The Caperton majority credited the judge’s subjective disavowal of bias but concluded that, viewed objectively, “the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average... judge to... lead him not to hold the balance nice, clear and true.’” (Caperton, at p. 2264.)
The circumstances here present no similar probability of actual bias. As discussed ante, neither the trial court’s remarks to Pastor Arnoldo and Emma, nor its reference to the blog entry or reader comments furnish, on an objective standard, any basis to detect an appearance of bias. A fortiori, there is no objective basis for finding a probability the trial court harbored actual bias against defendant. To the contrary, as discussed ante, the trial court was constitutionally entitled to engage the witnesses and comment on the evidence as it did, and the blog material that parroted commonplace public sentiment well-familiar to the court — but perhaps not Emma — supplies no reason to overcome the presumption the reader comments played no role in the judge’s sentencing decision. Consequently, defendant’s due process claim is without merit.
III DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.