Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA062766, Jessie I. Rodriguez, Judge. Affirmed with directions.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
A jury found Sean Michael Bradley (appellant) guilty of committing lewd conduct on a child under the age of 14 years, victim A. (Pen. Code, § 288, subd. (a).) Appellant was sentenced to a negotiated eight-year term in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Initially, appellant was charged as to victim A. with oral copulation on a child under the age of 14 years and lewd conduct on a child under the age of 14 years. (§§ 288, subd. (c)(1), 288, subd. (a).) As to victim B., appellant was charged with one act of lewd conduct on a child under the age of 14 years. An initial trial resulted in a jury deadlock and a mistrial. Before retrial, the prosecution dismissed the count 1 oral copulation charge, and on retrial, the jury returned a guilty verdict on the count 2 lewd conduct offense concerning A. However, the jury could not reach a verdict on the count 3 lewd conduct charge as to B. The parties negotiated a sentence bargain, guaranteeing appellant an eight-year prison term for count 2. When the eight-year prison term was imposed, the count 3 charge of lewd conduct was dismissed.
Appellant makes evidentiary contentions that the trial court erroneously excluded: (1) evidence that on the night prior to the complaint, A. had persistently questioned witness Fife about homosexuality; (2) Fife’s lay opinion testimony regarding the credibility of victims A. and B.; and (3) certain impeachment. Appellant also contends that (4) CALJIC No. 10.41 was argumentative; (5) the trial court limited appellant’s final argument; (6) there was judicial misconduct; (7) there was prosecutorial misconduct; (8) the trial court committed cumulative error; and (9) the abstract of judgment fails to include the restitution fines.
The People assert (10) that the abstract of judgment must be corrected to include all of the trial court’s orders of judgment.
We affirm the judgment and order the abstract of judgment be corrected as requested.
FACTS
Viewed in accordance with the usual rule of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established that A. and B. were twelve years old and best friends. On Monday September 4, 2004, the boys went with appellant, B.’s godfather, a man with whom B. had had a lifelong father-son relationship. They went to a yard sale and then to appellants’ sailboat, which was moored in a Wilmington marina. At the yard sale, appellant purchased a gift for A., but not for B.
Appellant had arranged with the boys’ mothers to take the boys on an outing. The plan was to spend the night on appellant’s sailboat and then go sailing the following day. The boys were excited about the outing.
That afternoon, when they boarded appellant’s sailboat, appellant had had B. help him count about $1,800 in cash that they then stashed in the sailboat’s galley. A. walked into the galley just as B. finished counting the cash.
During the evening hours, appellant and the boys went to dinner with friends and then spent time socializing on the yacht moored next to appellant’s sailboat. Todd Fife, the neighbor, had a laptop computer that the boys were using to access the Internet. The boys were playing games on the Internet and talking with Fife. At some point, appellant returned to his sailboat and went to bed. Fife’s stewardess wife, Judith Sherwin, returned home late that night. She sat with Fife and the boys and had a glass of wine to unwind after work. Then she went to bed on the sailboat two boats down, next to appellant’s.
Fife fell asleep about 2:00 a.m., and the boys returned to appellant’s sailboat. Appellant was asleep in the front cabin. The boys fell asleep on the couches in the galley.
The following morning, appellant awoke, and the boys joined him in the forward sleeping cabin. B. left at appellant’s request and rocked the boat from the outside. A. said that suddenly, appellant got an intimidating look on his face. He had A. get his penis out of his pants. Appellant orally copulated A. and then fondled his penis until A. ejaculated. A. became very upset. He left the cabin, found B., and told B. what had happened.
The boys went to Fife’s yacht and told him what had happened. Fife let A. use the telephone to call his mother. The mother directed Fife to telephone the police. Fife had Sherwin join them, and they waited for the police to arrive. Thereafter, the officers searched the boat and found the cash the boys had mentioned when they told the officers what had happened. The officers also removed A.’s personal items from the sailboat. An officer drove A. to a location for a sexual examination, and B. accompanied them.
The sexual examination disclosed that appellant was the primary donor of the epithelial cells recovered from A.’s penis. The expert discounted that the transfer of cells could have occurred by a tertiary transfer.
Later, B. reported that appellant had committed one act of lewd conduct on him years earlier. He claimed that the incident had occurred when he was approximately ten years old near Christmastime at a cabin at Lake Arrowhead. B. claimed that appellant had rubbed his erect penis against B.’s buttocks when he, appellant, and appellant’s sexual partner, Tom A., had spent the night at the cabin. (Appellant was a homosexual.)
In defense, appellant declined to testify.
Fife and Sherwin testified that while accessing the Internet the prior night, the boys had wanted Sherwin to let them use her credit card. The boys wanted the credit card to access a Web site that promised free prizes and a television. Sherwin refused. Sherwin also testified that it was apparent to her that A. or A. and B. wanted her to leave Fife’s yacht so that the boys could speak to Fife alone without her overhearing their conversation. Also, while Fife, Sherwin, and the boys were waiting for the police the next day, A. insisted that Fife lure appellant off the sailboat so that A. could return there to retrieve the personal items he had brought with him for the overnight. Also, at some point, A. told Fife that he “deserved” some of the cash that appellant was keeping on his sailboat.
During A.’s cross-examination, A. agreed that he had wanted to return to the sailboat to retrieve the items he had brought with him to the sailboat. He also agreed that he had told Fife that he deserved some money. He explained that at the time, he was angry and upset. He said: “I watched court TV when I was little. I didn’t know how the system worked, of course.” He said: I don’t know why I brought up the money. I was just angry and wanted [appellant] to pay . . . . I didn’t know what I was saying.” He acknowledged that he had also told the police officers that appellant “should pay.”
Tom A. testified that he had never accompanied appellant and B. on any trip to a cabin in Lake Arrowhead. Tom A. said that he was totally unaware of any such trip and that as far as he knew, appellant had no access to a cabin at or near Lake Arrowhead.
It was stipulated that appellant’s deceased father had testified in a prior judicial proceeding that Tom A. and appellant had visited him and his wife at approximately the same time as B. claimed that he had been molested.
The detective for the case testified that police had recovered approximately $1,900 in cash during a search of appellant’s sailboat.
DISCUSSION
I. Exclusion of the Conversation About Homosexuality
Appellant contends that it was evidentiary and constitutional error to exclude Fife’s testimony that on the night prior to the complaint, A. had persistently questioned Fife about homosexuality.
The contention lacks merit.
A. The Background
During an Evidence Code section 402 hearing, the prosecutor asked the trial court to preclude Fife from testifying that on the night prior to the complaint, A. had questioned Fife about homosexuality. She claimed that the evidence was irrelevant and unduly prejudicial. She explained that the boys were 12 years old, and thus, consent was not at issue. (See People v. Hillhouse (2003) 109 Cal.App.4th 1612, 1619–1620 [a victim’s consent is irrelevant where the charge is a violation of section 288 lewd conduct].)
Appellant proffered Fife’s testimony from the initial trial. During that trial, Fife had testified that while the boys were playing with the computer, A. had questioned him about “homosexual things.” The questions appeared to annoy B., but A. was very curious. Apparently, after Sherwin arrived home, A. had wanted Sherwin to leave so that he could continue the conversation about homosexuality with Fife. When asked whether the questioning was persistent, Fife said that there was a question here and a question there. Fife explained that he did not have a problem talking to the boys about homosexuality, but he did not “feed” the conversation. He wanted to get beyond it and let the boys just have fun on the boat.
Trial counsel asserted that the testimony was relevant to show A.’s prior reflection, planning, motive, and bias; that is, the questioning proved that A. had a motive to fabricate and that A. had been acquiring information about homosexuality from Fife in order to fabricate the complaint the following morning. Trial counsel argued that the defense was that the boys had come up with the complaint in order to get the cash that appellant had left on the sailboat. The boys insisted to Fife that following morning that they had to return to the sailboat. The money was the whole reason for the “put-up job.” The boys wanted to get that money “for what [appellant] did” to A.
The trial court inquired whether Fife had revealed the details of specific sexual activity that would have aided a fabrication. Trial counsel indicated that he did not know, but asserted that he assumed that Fife would so testify. Trial counsel said that he would have to ascertain the specifics of Fife’s testimony before he testified and that trial counsel wanted to ask Fife about that.
The trial court asked whether the defense had anything further at this point. Trial counsel indicated that he could not add to the proffer. The trial court then ruled “without prejudice” that the proffer was irrelevant. It said that any probative value the conversation might have was outweighed by the probability that the testimony’s admission would require an undue consumption of time, create a danger of undue prejudice, confuse the issues, and mislead the jury. It said the testimony was extremely prejudicial to the People’s case.
B. The Analysis
On appeal, appellant asserts that A. was apparently aware of appellant’s homosexuality, and the persistent questions about homosexuality were relevant. Appellant argues that because his defense was fabrication, any evidence having a tendency in reason to support the claim should have been admitted.
At the outset, this court observes that the issue is not cognizable on appeal. The trial court made a pretrial evidentiary ruling without the full details of what Fife might testify to on the point. The trial court’s ruling was “without prejudice.” Accordingly, to preserve the issue for appeal, appellant was required to renew his objection during trial with a further proffer on the specifics of Fife’s testimony and to press for a final ruling in the changed context of the further proffer. (People v. Holloway (2004) 33 Cal.4th 96, 133.) Appellant never renewed his request with the kind of information that would have demonstrated relevancy. Sherwin’s testimony was not included in any proffer on the point. As appellant failed to seek the admission of Fife’s and Sherwin’s specific testimony later during trial after speaking to Fife, the issue is forfeited.
Furthermore, the appropriate legal principle is, as follows: in general, evidence is admissible if it is capable of raising a reasonable doubt as to guilt. (See People v. Cudjo (1993) 6 Cal.4th 585, 609; People v. Hall (1986) 41 Cal.3d 826, 834 [if relevant, evidence is admissible (Evid. Code, § 350) unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion].) There is no abuse of discretion where a trial court excludes evidence that has no substantial probative value, and its probity is outweighed by the policies embodied in Evidence Code section 352. (See People v Geier (2007) 41 Cal.4th 555, 581.)
The natural curiosity a 12-year-old boy may exhibit about homosexuality and sexual matters has no tendency in reason to demonstrate a fabricated complaint, nor does it tend to show motive or planning. Without Fife’s testimony that during the conversation, he had described specific sexual activity that would have aided a fabricated complaint, the testimony in question was irrelevant. (Cal. Const., art. 1, § 28, subd. (d); Evid. Code, §§ 210, 351; see, e.g., People v. Woodward (2004) 116 Cal.App.4th 821, 831 [impeachment of a child victim of sexual assault is permitted to demonstrate past exposure to similar sexual activity in order to cast doubt upon a conclusion that the only way the child could have learned of the specific sexual acts was from the defendant].)
Also, given the proffer, the trial court properly excluded Fife’s testimony as it risked inviting unwarranted jury speculation about whether A. was homosexual or had encouraged the misconduct, issues that were likely to confuse or mislead the jury. (People v. Peters (1972) 23 Cal.App.3d 522, 533; see People v. Woodward, supra, 116 Cal.App.4th at p. 832 [because the relevance of the prior incidents of molestation were so minimal and the risk of confusing the jury so palpable, the trial court did not abuse its discretion by excluding the evidence].)
Fife’s testimony failed to demonstrate witness bias as there was no evidence that A. had had any prior relationship with appellant for the jury to consider on the issue of witness credibility. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 408; People v. Sweeney (1960) 55 Cal.2d 27, 41.) A party is properly precluded from cross-examining a witness on collateral matters for the sole purpose of eliciting something to be contradicted. (People v. Lavergne (1971) 4 Cal.3d 735, 744; see People v. Steele (2002) 27 Cal.4th 1230, 1249, fn. 3.)
Precluding the defense from introducing the above evidence did not amount to constitutional error. This was not a close case, and the DNA evidence was highly persuasive of the credibility of A.’s complaint of a lewd act. “[T]rial judges retain wide latitude” to limit reasonably a criminal defendant’s right to cross-examine a witness “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) During the trial, the defense was given a full and fair opportunity to probe and expose infirmities through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witnesses’ testimony. (Delaware v. Fensterer (1985) 474 U.S. 15, 22.) A defendant is not denied his right to present a defense “whenever ‘critical evidence’ favorable to him is excluded.” (Montana v. Egelhoff (1996) 518 U.S. 37, 53–54.)
II. Witness Fife’s Lay Opinion That the Boys Were Lying or That the Complaint Sounded Rehearsed
Appellant contends that the trial court abused its discretion when it excluded Fife’s testimony that he did not believe A. and B. and that he thought the complaint sounded rehearsed.
We disagree.
A. Background
Fife’s testimony at the initial trial was, as follows. Fife said that he felt that he did not hear the truth from the boys. He denied that initially, he had concluded that the boys were lying and explained that the impression he had “to some degree” was that the boys had rehearsed the complaint and that something about the story was “not right.” Then Fife agreed that he had not believed the complaint.
During cross-examination, Fife admitted that he told a defense investigator that he had concluded that the story was rehearsed because A. had told his mother over the telephone the same story that he had just told Fife. Fife acknowledged that before trial, he had told a female police officer that he did not believe that the boys were telling the truth. He explained that that was because the boys kept asking to return to appellant’s sailboat to obtain their personal belongings. Fife agreed that the boys did not want to return to the sailboat as long as appellant was on board. However, Fife explained that he wondered about credibility because the boys said that they wanted to get some of the money on board. Fife agreed that prior to trial, he had told the prosecutor that even if the DNA evidence indicated guilt, Fife would not believe it.
On retrial, the prosecutor objected that the Fife’s testimony in this regard amounted to inadmissible character evidence.
The trial court ruled that Fife’s testimony was inadmissible. It commented that Fife would not have had the ability or the legal standing to come to a reasonable conclusion regarding the boys’ veracity. Furthermore, any probity the testimony had was outweighed by the risk the jury might be misled into abandoning their role as the fact finder on the issue of the boys’ credibility.
B. The Analysis
The testimony was irrelevant as it was a lay opinion concerning the veracity of the boys’ statements.
The court in People v. Zambrano (2004) 124 Cal.App.4th 228, 239–240, recently explained the following: “Our state Supreme Court has recognized that a lay witness’s opinion about the veracity of another person’s particular statements is inadmissible and irrelevant on the issue of the statements’ credibility. (People v. Melton (1988) 44 Cal.3d 713, 744.) The high court reasoned that such lay opinion testimony invades the province of the jury as the ultimate fact finder, is generally not helpful to a clear understanding of the lay witness’s testimony, is not ‘properly founded character or reputation evidence,’ and does not bear on ‘any of the other matters listed by statute as most commonly affecting credibility’ in Evidence Code section 780, subdivisions (a) through (k). (People v. Melton, supra, at p. 744.) The high court therefore concluded that ‘such an opinion has no “tendency in reason” to disprove the veracity of the statements.’ (Ibid.; see also Evid. Code, §§ 210, 350, 780 & 800; People v. Sergill (1982) 138 Cal.App.3d 34, 39–40; People v. Smith (2003) 30 Cal.4th 581, 628 [jury as capable as expert to assess the credibility of a defendant’s statement].)”
Evidence Code section 800 provides, as follows: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.”
Fife had just met the boys that night. He knew nothing about their general character for veracity, and the lay opinion was unnecessary to understand his testimony. The ruling did not prevent Fife from testifying on retrial to the boys’ demeanor and appearance on the morning of the complaint. Nor did the trial court prevent appellant from inquiring into the various statements the boys made while they were waiting for the police, including their statements that they wanted to return to the sailboat after appellant was lured away. As appellant had every opportunity to elicit the specifics of the boys’ demeanor, statements, and conduct, the trial court’s ruling was a proper exercise of discretion.
Appellant argues that Fife’s testimony should have been admitted because Proposition 8 abrogated the Evidence Code sections that govern the admissibility of impeachment evidence. He argues that as a consequence, as long as the impeaching evidence is relevant and reliable, it must be admitted subject to the limitations in Evidence Code section 352. However, Proposition 8 did not abrogate the decision in Melton with respect to this sort of testimony. The Melton court reasoned that a lay person, with no reliable basis for evaluating the veracity of another’s statements, had no relevant evidence to offer. (See People v. Melton (1988) 44 Cal.3d 713, 744 (Melton).) As Proposition 8’s Truth-in-Evidence provision applies only to relevant evidence, there is no reason to conclude that the rule in Melton is no longer in effect.
In the decisions in People v. Padilla (1995) 11 Cal.4th 891, 946–947, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, footnote 1, and in People v. Stitely (2005) 35 Cal.4th 514, 546, the California Supreme Court failed to reach the issue of whether Proposition 8 abrogated the rule in Melton. Cases are not authority for propositions not considered. (People v. Williams (2004) 34 Cal.4th 397, 405.)
Furthermore, even if Proposition 8 has abrogated the provisions of Evidence Code section 800 and has undercut the Melton decision, Fife did not know the boys well and had only the briefest contact with them. His opinion was not a reliable indicator of veracity. Accordingly, the trial court properly deemed the testimony inadmissible pursuant to Evidence Code section 352. To have admitted Fife’s testimony would have created the unreasonable risk that the jurors would place undue weight on Fife’s on-the-spot evaluation of the boys’ credibility and that the jury might defer to his opinion and abandon its factfinding role, which includes evaluating witness credibility.
There was no evidence introduced at trial suggesting that the police or the prosecution endorsed A.’s credibility. The jury was charged as to reasonable doubt and the presumption of innocence. There is no authority supporting appellant’s claim that Fife’s testimony had to be admitted in order “to balance the scales of credibility.”
Appellant’s constitutional argument that he was denied his right to cross-examine witnesses is similarly unpersuasive. The defense was afforded an ample opportunity to impeach A. and B. with relevant evidence showing that the boys had a motive for fabricating a false complaint of sexual misconduct. As it was, in many respects, Fife and Sherwin cast doubt on the credibility of the boys’ claim, and it was apparent from their testimony that they did not believe the complaint.
Appellant has failed to demonstrate in factual terms that further cross-examination on the items of evidence excluded would have produced a significantly different impression of witness credibility. An application of a state’s ordinary rules of evidence does not impermissibly infringe on a defendant’s constitutional rights. (People v. Pollock (2004) 32 Cal.4th 1153, 1173.)
III. The Exclusion of Certain Impeachment Evidence
Appellant contends that the trial court improperly barred cross-examination, as follows. During A.’s cross-examination, the trial court precluded trial counsel from inquiring into (1) whether A. had asked Sherwin for her credit card; (2) whether A. had seen a therapist following the incident; and (3) whether A. had engaged in any “acting out” behavior after reporting the incident. During B.’s cross-examination, appellant claims that the trial court prevented his trial counsel from inquiring into (4) whether B. remembered that appellant had had a serious motorcycle accident; (5) B.’s particular religious faith; (6) whether B. had repressed memories of appellant having molested him as he had testified during the initial trial; (6) whether B. in part failed to remember the earlier sexual molestation and why he had not reported the incident; and (7) whether B. still claimed to have a photographic memory.
The contention lacks merit.
A. The Relevant Legal Principles
Evidence Code section 210 states, “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (See People v. Harris (2005) 37 Cal.4th 310, 337; People v. Hart (1999) 20 Cal.4th 546, 606, fn. 16; People v. Garceau (1993) 6 Cal.4th 140, 177.) In addition, Evidence Code section 780 provides in pertinent part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] . . . [¶] (e) His character for honesty or veracity or their opposites. [¶] . . . [¶] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing . . . .”
Pursuant to article I, section 28(d) of the California Constitution (Proposition 8), all persons who testify in a criminal case, including the accused, other defense witnesses and those appearing for the People, are equally subject to the principle of impeachment with “‘relevant’” evidence. (See People v. Wheeler (1992) 4 Cal.4th 284, 292.) However, Proposition 8 did not remove the trial court’s discretion pursuant to Evidence Code section 352. (People v. Smith (2007) 40 Cal.4th 483, 512.) “‘[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad.” (Id. at pp 512–513.)
“A trial court’s ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion . . . . [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
B. Cross-examining A. About Sherwin’s Credit Card
Appellant claims that there should have been no limitation on cross-examination as the boys were the complaining witnesses. He asserts that he was entitled to elicit from A. whether the boys had asked Sherwin for her credit card so as to demonstrate there was a conflict between the Fifes’ and A.’s recollections of the events preceding the claimed lewd act. He supports this assertion by claiming that the Fifes had no interest in the case and that any conflict in testimony would have been relevant to show that A. was lying. He urges that his proposed cross-examination would have “bolstered the defense contention that the true motivation for the charges was financial” and that during the trial A. and B. had attempted to “downplay their interest in material items so as to minimize the defense theory.”
The claims lack merit. Trial counsel was permitted to elicit from Fife and Sherwin that the boys had asked Sherwin for her credit card and that she had refused. Thus, the defense achieved its purpose in laying a foundation for later arguing to the jury that the boys were greedy about acquiring material objects. Insofar as the A.’s testimony might have set up a discrepancy between the witnesses’ testimony, which would potentially impeach A., the trial court properly exercised its discretion to exclude the testimony. At best, it was marginally relevant as all it demonstrated was that A. was a 12-year-old boy with a normal interest in playing games on the Internet and winning prizes. Questioning A. on this issue was cumulative of the Fife’s and Sherwin’s later testimony. The trial court engaged in a proper application of Evidence Code section 352. (People v. Carpenter (1999) 21 Cal.4th 1016, 1050–1051; People v. Stern (2003) 111 Cal.App.4th 283, 297–299.) Evidence is not relevant merely because it sets up a conflict between the testimony of witnesses. (People v. Mayfield (1997) 14 Cal.4th 668, 748 [it is a matter of discretion for the trial court to admit or to exclude collateral impeachment].)
Also, when the trial court refused to permit trial counsel to engage in this cross-examination, trial counsel failed to make an appropriate proffer. During A.’s cross-examination, the testimony’s potential relevance would not have been apparent to the trial court. The lack of a proffer requires that this court conclude there was a forfeiture. (People v. Coleman (1970) 8 Cal.App.3d 722, 730–731; People v. Burton (1961) 55 Cal.2d 328, 344–345.)
C. The Inquiries About Psychological Therapy and Acting Out
Again, the issue was not preserved for appeal because the prosecutor objected on grounds of relevance, and trial counsel made no proffer after the objection was sustained. This court cannot evaluate the propriety of the cross-examination in the absence of a proffer.
Moreover, the presence or absence of “child sexual abuse accommodation syndrome” was inadmissible in any event, even with a foundation of expert testimony. (Cf. People v. McAlpin (1991) 53 Cal.3d 1289, 1299–1300 [expert testimony on the common reactions of child molestation victims is inadmissible to prove the complaining witness was in fact sexually abused]; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) A subjective inquiry addressed to the child victim as to whether he later acted out or his family sought psychological counseling for him was unduly intrusive and irrelevant to the issues or credibility. (See People v. Chatman (2006) 38 Cal.4th 344, 375–377 [the use of psychiatric or psychological evidence for the purpose of impeaching witness credibility is generally disfavored]; People v. Anderson (2001) 25 Cal.4th 543, 587–588 [questions about whether a witness had previously been treated in therapy are irrelevant].)
D. The Motorcycle Accident
During A.’s cross-examination, A. claimed that the clearance over the bed in the front compartment of the sailboat was two to three feet. A. acknowledged that he had previously testified that the overhead clearance was one to two feet. Trial counsel demanded that A. explain how he and appellant could have been sitting on the bed without hitting their heads on the ceiling. A. replied, “I guess I measured wrong. I don’t do measurements well.”
During B.’s cross-examination, trial counsel attempted to elicit that appellant had suffered motorcycle accident injuries that would have made it difficult for him to perform the contortions necessary to engage in oral copulation in the cramped quarters on the bed.
The trial court refused to permit the cross-examination.
The trial court pointed out to trial counsel that A. had corrected his testimony and acknowledged a mistake in claiming physical dimensions that would have meant that appellant’s forward sleeping cabin was severely cramped. The trial court inquired whether there was a legitimate dispute about the overhead clearance. Trial counsel pointed out that A. had given conflicting testimony on the point.
After questioning trial counsel as to whether there was no true dispute, the trial court ruled that they were not “going to get into that motorcycle accident.”
On appeal, appellant asserts that the cross-examination would have permitted him to delineate for the jury the “plausibility of” A.’s story and to show that A.’s version of the events was incredible. In his reply brief, appellant urges that in “light of the uncertainty of the position[s] of” appellant and A., “testimony regarding the motorcycle accident and [appellant’s] consequent limited mobility was relevant to permit the jury to evaluate” A.’s credibility.
Here, there was no dispute that A. was sitting on the bed when the lewd act purportedly occurred. Further inquiry into whether appellant could have engaged in oral copulation in the cramped forward quarters housing the bed was a waste of time. Ultimately, the prosecution would have had no difficulty in demonstrating that the bed area on the sailboat was roomy enough for appellant to engage in the activities described. There was no other suggestion in the evidence that appellant did not have the mobility necessary to lean over and move around in the forward cabin. Apparently, appellant was agile enough to sail the sailboat the following day.
The trial court properly exercised its discretion when it concluded that trial counsel would accrue no probable benefit from this line of questioning. (People v. Frye (1998) 18 Cal.4th 894, 945.)
E. Cross-examination About B.’s Religious Faith
Trial counsel inquired into B.’s claim that after appellant molested A., B. wanted to take matters into his own hands and attack appellant. B. explained that he was upset and angry with appellant, but that he had refrained from acting on these feelings because he had a strong “religious upbringing.” He claimed that to have attacked appellant was “not really good behavior.” At that point, trial counsel asked, “What faith?” The prosecutor objected on grounds of “relevance,” and the trial court sustained the objection.
Evidence Code section 789 provides as follows: “Evidence of his religious belief or lack thereof is inadmissible to attack or support the credibility of a witness.” The court in Drake v. Dean (1993) 15 Cal.App.4th 915 explained: “This section simply codifies existing law expressed over a century ago in People v. Copsey (1887) 71 Cal. 548, that evidence relating to whether a witness possesses or lacks religious beliefs is inadmissible on the issue of his credibility as a witness. (Id. at p. 550.) Copsey, in turn, was based on the provisions of article I, section 4 of the California Constitution, which states ‘[a] person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.’ While one cannot be precluded from testifying because he lacks religious belief, relevant inquiry whether a witness’s membership in a particular religious sect or a tenet of his faith might tend to bias him is not prohibited.” (Drake v. Dean, supra, at p. 933.)
On appeal, appellant asserts that the witness brought up his strong religious upbringing “to cloak himself in the garb of religious virtue,” and accordingly, trial counsel was entitled to probe the witness on the issue. We disagree. The apparent purpose for trial counsel’s general inquiry was to demonstrate that B. had a motive to fabricate his own complaint of sexual abuse. The record shows that B. only resorted to his explanation to explain his motives and in order to respond to questioning about his feelings about appellant after the abuse. The reply does not appear to have been a blatant attempt by the witness to bolster his own credibility. In the circumstances, trial counsel’s questions invited the jury to consider B.’s religious faith. That inquiry was extraneous to the issues and witness credibility, and it risked confusing the issues. The trial court had ample discretion to bar the cross-examination.
In any event, the point is not cognizable on appeal. Following the trial court’s ruling, trial counsel failed to make a proffer as to relevance. As a consequence, the point is forfeited. (People v. Coleman, supra, 8 Cal.App.3d at pp. 730–730; People v. Burton, supra, 55 Cal.2d at pp. 344–345.)
F. Cross-examination About Repressed Memory and the Claim of a Photographic Memory
In the initial trial, during direct examination, B. testified that he had repressed the memory of his sexual molestation and that was why he did not reported the lewd act immediately, and he had waited three years until A. made his complaint. At that time, B. had explained that the incident with A. had caused him to recall the repressed memory of his own sexual abuse. Trial counsel had asked where B. had learned the term, “repressed memory.” B. replied, “in case you didn’t see, I am incredibly gifted, very intelligent. I know a lot of vocabulary.” Later defense counsel asked why B. had left A. alone with appellant knowing what appellant was likely to do to A. B. replied, “Like I said, I had repressed the memory and I did not recall it at that moment.”
During retrial, trial counsel asked B. what he knew about repressed memory. B. replied that “[i]t is your brain’s way of defending yourself towards the memory.” B. said: “It will put it some people say in the back of your mind to where you won’t recall it quite as much and you don’t want you [sic] don’t recall. The brain does that because sometimes it is too much of [a] shock [sic] for you to handle and sometimes it can cause a disease known as dyslexia, which is which [sic] causes you to read words backwards.” Trial counsel inquired where B. had learned all of this, and he replied, “Mainly from watching ‘Law and Order Special Victims’ Unit.”
During the initial trial, trial counsel asked B. how he could remember the television program he was watching at the cabin in Lake Arrowhead. B. replied that the program was “Fox Family because, like I said I’m very intelligent. I have a photographic memory.” When trial counsel said, “You do?” B. replied, “Somewhat photographic.” Later, B. agreed that he had told the police that he had a bad memory. B. explained: “I sometimes have a bad memory. The photographs, the pictures can become fuzzy, like not necessarily you cannot remember every single detail you [choose], the photos of family memories, that happens to me.”
During the instant retrial, trial counsel asked B., “Now I think that you have talked about things like repressed memories and things like that.” The prosecutor objected on grounds of relevance, and the trial court sustained the objection. Twice again, trial counsel attempted to question B. about repressed memory. The trial court sustained another objection from the prosecutor and then sustained its own unstated objection and directed trial counsel to “Forge ahead.”
Trial counsel then established that B. did not timely report the Lake Arrowhead lewd act. B. explained the reasons for failing to make a report: B. claimed that his belated reporting was due to a little of failing to recall the act and to a little of forgetting what had happened and not reporting it to anyone.
The trial court precluded further cross-examination on the issue. At the side bar, the trial court asked trial counsel whether he intended to bring in an expert on repressed memory or any scientific evidence on the subject. Trial counsel said, “No,” and complained that his cross-examination was “being shut down.”
Trial counsel also complained that the trial court was exhibiting hostility toward him. The trial court replied that trial counsel was being disrespectful to the court. Trial counsel denied such misconduct. The trial court told trial counsel that if the defense had an expert, trial counsel needed to provide the trial court with a proffer. Otherwise, the trial court intended to bar further cross-examination on the subject.
Trial counsel indicated that he had no expert.
With respect to this attempt to impeach B., the trial court properly exercised its discretion.
Expert testimony is required where the subject matter is peculiarly within an expert’s knowledge, and the topic is not a matter of common knowledge. (See People v. Chapman (1962) 207 Cal.App.2d 557, 573; see also Trear v. Sills (1999) 69 Cal.App.4th 1341, 1344 [“The idea that childhood sexual abuse may result in suppression of memory such that the victim may not remember it until many years later under the guidance of a psychotherapist is, to say the least, a controversial one within the psychotherapeutic community”].) As trial counsel had no plans to use expert testimony on the topic so as to put the phenomenon of repressed memory in a proper context, the trial court acted well within its discretion by precluding cross-examination. B.’s lay opinion that he had been suffering from repressed memory was properly excluded. The evidence created a substantial risk of misleading the jury and confusing the issues.
Moreover, B.’s failure to report the lewd act was highly probative only with respect to the count 3 of lewd conduct, on which the jury deadlocked and which count was later dismissed. This element of B.’s testimony would not have affected the jury’s evaluation of A.’s credibility, which in any event was corroborated by the DNA test results. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Preventing the jury from hearing B.’s prior claims of having a photographic memory was at best nonprejudicial. As we explain above, count 3 was dismissed after the jury could not reach an agreement as to guilt, and this cross-examination would have had no impact on the jury’s evaluation of the credibility of A.’s complaint.
G. The Constitutional Claims
Appellant asserts that the “complete preclusion” in the areas of cross-examination above denied him his right to confrontation. Also, he claims that he was entitled under the Constitutions to probe the boys’ testimony not only for bias and outright falsity, but to expose exaggeration.
Here, appellant cross-examined A. and B. concerning allegations of abuse and a financial motive for the complaints. The boys were cross-examined about their prior inconsistent statements, and trial counsel elicited that B. waited over three years and until his best friend had been molested to make his complaint of a lewd act. After the Lake Arrowhead lewd act, B. had continued to spend time with appellant alone, and there was no allegation of further lewd conduct. Trial counsel elicited that B. had left A. alone with appellant without warning him about appellant’s proclivities. The jury rejected B.’s claim of a lewd act and found A.’s claim to be credible.
On this record, appellant has failed to demonstrate that barring the above cross-examination would have produced a significantly different impression of the boys’ credibility. (See People v. Hillhouse, supra, 27 Cal.4th at p. 494.) The exclusion of defense evidence on minor or subsidiary points does not amount to a constitutional violation. (People v. Boyette (2002) 29 Cal.4th 381, 427–428.)
IV. CALJIC No. 10.41
Appellant contends that the judgment should be reversed because the trial court charged the jury with CALJIC No. 14.01, which is argumentative.
The contention lacks merit.
A. CALJIC No. 10.41
The trial court charged the jury with CALJIC No. 10.41, the pattern instruction which sets out the elements of lewd conduct with a child under the age of 14, as follows.
“Defendant is accused in Counts 2 and 3 of having committed the crime of lewd act with a child in violation of section 288, subdivision (a), of the Penal Code. [¶] Every person who willfully commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or the child, is guilty of the crime of committing a lewd or lascivious act upon the body of a child in violation of Penal Code section 288, subdivision (a). [¶] A ‘lewd or lascivious act’ is defined as any touching of the body of a child under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. To constitute a lewd or lascivious act, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child. [¶] The law does not require as an essential element of the crime that the lust, passions, or sexual desires of either of such persons be actually aroused, appealed to, or gratified. [¶] It is no defense to this charge that a child under the age of 14 years may have consented to the alleged lewd or lascivious act. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person touched the body of a child; [¶] 2. The child was under 14 years of age; and [¶] 3. The touching was done with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or the child.”
B. The Analysis
Appellant argues that CALJIC No. 10.41 is argumentative because by injecting into jury consideration specific evidentiary matters that are not elements of the offense, the trial court effectively slanted the instruction in favor of the prosecution. Also, as the instruction contained directions on matters that were not elements of the offense and did not have to be proved, the instruction was essentially duplicative. Moreover, the instruction improperly diminished the weight the jury would afford to certain evidence. Appellant explains that for example, by providing that the law does not require as an essential element of the offense that the lust, passions, or sexual desires of the perpetrator or child be actually aroused, appealed to, or gratified, the instruction may have caused the jury to minimize or to disregard evidence that had significant probative value.
He asserts that in this case, appellant had only a short contact with A.; there was no physical evidence of arousal, i.e., semen; there was evidence of a financial motive for the complaint; and the boys made conflicting statements during the two trials. Consequently, there was a strong likelihood that the jury would have reached a different conclusion had it not been distracted with the “negative elements of proof” in the instruction.
Applying the law to the facts, this court concludes that the trial court did not err by charging the jury with the pattern instruction CALJIC No. 10.41.
Appellant is not urging that CALJIC No. 10.41 failed to set out for the jury the elements of the offense. Consequently, his failure to object to the proposed wording of the instruction has forfeited the contention. (People v. Bolin (1998) 18 Cal.4th 297, 326; accord, People v. Farnam (2002) 28 Cal.4th 107, 165.)
Furthermore, the instruction is not argumentative. An argumentative instruction is one that highlights specific evidence and invites the jury to draw inferences favorable to one of the parties from the specified items of evidence. (People v. Earp (1999) 20 Cal.4th 826, 886.) The public is generally unfamiliar with the elements of a lewd conduct offense. In addition to setting forth the elements of the offense, the instruction attempts to correct at the outset several common misconceptions that a jury might entertain with respect to the elements of the crime, such as, proof of sexual gratification is unnecessary to prove the offense. (Cf. People v. Flores (2007) 157 Cal.App.4th 216, 220 [that part of the assault instruction directing the jury that the prosecution need not prove that he actually intended to use force against someone or that he had touched someone, or that anyone must have been injured by the act, intent to use force, or a resulting injury is not impermissively argumentative].) The instruction did not specify items of evidence, identify witnesses, or in any way favor the prosecution over the defense. (Ibid.) Nor was the instruction duplicative; instead, CALJIC No. 10.41 sets out the elements to be proved in easily understood language. It did not improperly diminish the weight to be given to certain evidence. Its language was neutral in tone and did not discourage the jury from considering evidence on either sexual arousal or a lack thereof. (See, e.g., People v. Ibarra (2007) 156 Cal.App.4th 1174, 1195–1196 [the pattern jury instruction on stalking did not improperly diminish the weight to be given evidence when it set out that the prosecutor did not need to prove that a person who makes a threat actually intends to carry it out; the instruction merely assisted jurors to understand the nature of the crime].)
Further, charging the jury with CALJIC No. 10.41 did not constitute constitutional error. The instruction did not impede the jury in properly determining appellant’s guilt of every element of the charge beyond a reasonable doubt. Nor did it bias the jury so that it determined guilt in a way that violated the Constitutions. (See U.S. v. Fuller (4th Cir. 1998) 162 F.3d 256, 259, citing United States v. Gaudin (1995) 515 U.S. 506, 522–523.)
V. Limiting Final Argument
Appellant contends that limiting his final argument concerning the notorious Michael Jackson case constitutes an error of state law and an error of constitutional dimension.
The contention is meritless.
A. Background
During final remarks to the jury, trial counsel referred at length to the Michael Jackson case. Trial counsel argued that A. and B. watched television and use the Internet. The press had reported on the money that the Jackson family had paid out on prior complaints because of Jackson’s purported sexual abuse. Trial counsel commented that one difference was that Jackson could afford such big payouts, but appellant could not. Trial counsel said, “It was about the money,” and “It was about a man who [had kids as friends].” In his argument, trial counsel pointed out the similarities and differences between Jackson’s case and the instant case; i.e., that the men were easy marks, that appellant lacked a prior history of misconduct, and that the charges were fabricated. He said, “And that’s what was going on at the time that these charges were fabricated.”
After trial counsel made the above points, the prosecutor objected, and the trial court ruled, “Objection sustained. Sustained, sustained. Get off of it, and you know it.” Trial counsel replied, “I heard your ruling.” The trial court said, “Sir, don’t argue with me.” Trial counsel replied, “I’m not.” The trial court repeated, “Objection sustained,” and said, “Go ahead.”
Trial counsel concluded his argument and then complained out of the jury’s presence: “You need only have said it once,” and “You need not humiliate me in front of the jury.” The trial court replied, “I am not humiliating you.” Trial counsel retorted, “You said, ‘Sustained, sustained, sustained,’” and “Counsel you know better. Move on, move on.” The trial court commented that trial counsel kept looking at the court displaying his displeasure. Trial counsel said, “That is just not true. I’m sorry. I [was not] displeased. You made the ruling, and I accept it.”
The trial court told trial counsel that counsel was well aware that his final remarks were improper. It explained that it was not acting as “a third prosecutor.” It had not interfered until the prosecutor objected. Nevertheless, the argument was “out of the question.” Further, it told trial counsel that it wanted no further comment from him on the point. Trial counsel asked what was improper about his argument. The trial court replied that it was his comments on Michael Jackson, and trial counsel replied that he was unaware that this argument was improper. The trial court responded, “Okay. I think you know it by now.”
B. The Analysis
A trial court retains “great latitude” in controlling the scope and duration of a defendant’s constitutionally-protected right to engage in closing argument. (Herring v. New York (1975) 422 U.S. 853, 862; People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) We review a trial court’s limitations on closing argument to the jury for an abuse of discretion. (See People v. Benavides (2005) 35 Cal.4th 69, 100.)
On appeal, appellant relies on the proposition that it is well established that trial counsel is entitled to refer to other high publicity cases for the purpose of drawing on common experience for the general notion that children sometimes fabricate accusations against innocent persons. (See People v. Mendoza (1974) 37 Cal.App.3d 717, 725 (Mendoza).)
In his reply brief, appellant also argues that the point of this closing argument was to urge to the jury that there was media coverage in the Jackson case, of which the boys were undoubtedly aware as they were media watchers. They would have heard the publicity about Jackson paying off several children who complained of sexual abuse. The boys therefore would also have been aware that their complaints of sexual abuse might result in obtaining a payoff. He argues that because his trial counsel’s argument concerns a central point in the case, the trial court could not properly preclude such argument.
A defendant may refer to other cases to demonstrate that children do fabricate claims against adults. However, a trial court can properly bar trial counsel from commenting on other specific cases with different facts where there is a danger that the jury will become confused with irrelevant facts. (Mendoza, supra, 37 Cal.App.3d at p. 725; People v. Pelayo (1999) 69 Cal.App.4th 115, 122 (Pelayo); People v. London (1988) 206 Cal.App.3d 896, 909 (London).) Here, trial counsel had an ample opportunity to make his points, as well as to refer to the Jackson case at some length. The trial court properly exercised discretion when it ordered trial counsel to move on to another line of argument.
To the extent that People v. Woodson (1964) 231 Cal.App.2d 10, 15–16, supports appellant’s claim of error, we decline to follow that decision. This court concludes that the above-cited cases—Mendoza, Pelayo, and London—are better reasoned.
Appellant argues that he was denied his Sixth Amendment right to the effective assistance of trial counsel because his final argument was curtailed. A “criminal defendant has a constitutional right to assistance of counsel. (U.S. Const., Amend. VI; Cal. Const., art. I, § 15.) That right ‘ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.’ (Herring v. New York (1975) 422 U.S. 853, 858.) . . . [T]he constitutional right to the assistance of counsel encompasses the right to have counsel present closing argument. (Herring v. New York, supra, at pp. 856–862; In re William F. (1974) 11 Cal.3d 249, 255.)” (People v. Bonin (1988) 46 Cal.3d 659, 694, overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
With regard to appellant’s Sixth Amendment claim, trial counsel’s comments on the point of a probable fabrication were not unduly limited. As appellant adroitly made his points before the trial court sustained an objection, there was no state law error to serve as the predicate for the constitutional error he complains of. (See, e.g., People v Bonin, supra, 46 Cal.3d at p. 695.)
VI. Judicial Misconduct
Defendant contends that he was denied due process and a fair trial because there was judicial misconduct.
The contention is not persuasive.
A. Background
Appellant complains about several incidents of purported judicial misconduct that occurred before the jury.
During one incident, the trial court sustained a relevancy objection. It then asked trial counsel not “to look at me like that.” It said, “Don’t’ mad dog me. Okay. Sir.” Thereafter, trial counsel argued with the trial court about whether the trial court’s observations about trial counsel’s conduct were accurate.
At another point, the trial court told trial counsel that it appeared that trial counsel was attempting to “set” up the witness so as to have evidence admitted that was otherwise inadmissible. Trial counsel replied that he was doing no such thing. The trial court told counsel that he was “going over the limit,” and it did not want trial counsel “to argue with the [trial] court anymore, [or to] make faces.” The trial court told counsel that it did not appreciate counsel smiling at the trial court when it sustained objections. Trial counsel protested that he was simply attempting to think of an alternate way to properly question the witness and that he believed his cross-examination had been proper. Trial counsel reminded the trial court that the evidence on repressed memory had been admitted during the initial trial.
The trial court cut off trial counsel and indicated that whatever had occurred during the prior trial was irrelevant. It directed trial counsel not to make such remarks. It told trial counsel that his comments were irrelevant and improper and that was not where the trial court was going with the conversation. It told counsel that it would not admit the evidence of repressed memory unless counsel also presented an expert.
Trial counsel replied that he was not calling an expert.
The trial court then ruled that it would not permit cross-examination on repressed memory. Trial counsel objected that shutting down his cross-examination was constitutional error. He claimed that the trial court was “acting hostile” toward him. In turn, the trial court retorted that trial counsel was being “disrespectful.” The trial court ordered trial counsel to “Forge ahead.”
In the jury’s presence, trial counsel then said, “[I]n light of the trial court’s ruling and my inability to cross-examine, I will not continue.”
The trial court admonished trial counsel before the jury, as follows: “That is improper in front of this panel, counsel. You know it. Sir, whatever objections you have, put on the record. Do not make editorial comments in front of the panel. You know it, and I know it.”
Trial counsel announced that he had no further questions, and the trial court repeated, “That is improper.”
During final argument, after the Michael Jackson comments, the trial court and trial counsel had another brief exchange. Trial counsel protested that he felt humiliated in front of the jury and complained about the way in which he had been addressed, as described in the prior contention, in part V.
B. The Relevant Legal Principles
The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. (See Bracy v. Gramley (1997) 520 U.S. 899, 904–905.) Judicial misconduct occurs when a trial judge conducts the proceedings in a manner which strongly suggests to the jury that the judge disbelieves the defendant’s case or otherwise favors the prosecution. (See Liteky v. United States (1994) 510 U.S. 540, 555–556.) To violate a defendant’s right to a fair trial, a trial judge’s intervention in the trial must be significant and must be adverse to the defendant to a substantial degree. (See McBee v. Grant (6th Cir. 1985) 763 F.2d 811, 818; see also Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 740.)
In Sturm, our Supreme Court summarized the California standard for judicial misconduct, as follows. “‘The object of a trial is to ascertain the facts and apply thereto the appropriate rules of law, in order that justice within the law shall be truly administered.’ [Citation.] To this end, ‘the court has a duty to see that justice is done and to bring out facts relevant to the jury’s determination.’ [Citation.] The trial court has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence. [Citation.] As provided by section 1044, it is ‘the duty of the judge 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.’ However, ‘a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.’ [Citation.] [¶] Trial judges ‘should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.] A trial court commits misconduct if it ‘“persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge.”’ [Citations.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237–1238.)
Furthermore, section 1044 confers special duties on a trial court to ‘“limit . . . the argument of counsel to relevant and material matters’ . . . .” The duty required the trial court “to exercise its discretionary powers . . . [over] improper argument by the defense as well as the prosecution.” (People v. Ponce (1996) 44 Cal.App.4th 1380, 1388.)
C. The Analysis
“As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on that ground at trial. [Citations.] However, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile. [Citations.]” (People v. Sturm, supra, 37 Cal.4th at p. 1237.) Here, defendant’s failure to enter a specific objection and to also ask for a jury admonition forfeits the contention. A proper admonition would have cured any harm done by the trial court’s comments to trial counsel before the jury. (See People v. Melton, supra, 44 Cal.3d at p. 735.)
Even if we address the contention on the merits, defendant will not prevail. The record contains no evidence of judicial misconduct or the denial of a fair trial. “A [trial court’s] ordinary efforts at courtroom administration—even a [trial court’s] stern and short-tempered judge’s ordinary efforts at courtroom administration—remain immune.” (Liteky v. United States, supra, 510 U.S. at p. 556.) Here, the trial court kept a tight rein on the admission of evidence and repeatedly prevented defendant from cross-examining on irrelevant points. It curtailed trial counsel’s final remarks to the jury only when the prosecutor objected and where it concluded that trial counsel had overstepped appropriate bounds. Trial counsel complained that the trial court was affording him insufficient leeway to develop his defense. However, the trial court’s rulings were entirely correct.
There was no partiality in the conduct of the trial. A trial court does not commit misconduct simply by evidencing irritation with trial counsel or admonishing trial counsel in the presence of the jury. (People v. Carpenter, supra, 15 Cal.4th at p. 353.) The trial court did not unduly interrupt defense counsel, disparage him in front of the jury, nor conduct itself in such a way as to suggest that it did not believe one or more of the witnesses or the proffered defense. Nor did the trial court leave the impression that it had aligned itself with the prosecution. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 605.)
VII. Prosecutorial Misconduct
Appellant contends that during her final comments to the jury, the prosecutor committed misconduct by referring to facts not produced in evidence.
The contention is forfeited because there was no objection to the remarks.
The prosecutor argued the following during her rebuttal argument. “I took a poll at lunch time [as to] whose spouses pee, or urinate, immediately after sex. No one said, [‘Yes.’] Most said they roll over and go to sleep. And I’m bringing this up not to be indelicate, but I’m bringing this up because [defense] counsel says it, it is not so. You have to swing right back down to the evidence.”
Appellant acknowledges that this rebuttal comment was undoubtedly made in response to trial counsel’s argument that A. was incredible when he testified that after he ejaculated, he did not go to the bathroom and urinate. Nevertheless, appellant urges that the remarks were misconduct as the argument was based on evidence outside the record.
At the outset, the issue is forfeited. In order to preserve a claim of prosecutorial misconduct for the appeal, a defendant must timely object on grounds of the misconduct and seek an admonition, unless an objection and admonition would not cure the harm. (People v. Ochoa (1998) 19 Cal.4th 353, 427.) As he has failed to do so or to demonstrate that an appropriate admonition would not have cured any harm, there is a forfeiture.
Moreover, a prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642–643.) Misconduct by a prosecutor that does not render a trial fundamentally unfair is error under state law if the prosecutor uses “deceptive or reprehensible methods” to attempt to persuade the court or the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
It is improper for the prosecutor to refer to evidence outside the record, and the prosecutor here made such a reference. (People v. Frye, supra, 18 Cal.4th at p. 976; People v. Bain (1971) 5 Cal.3d 839, 848.) Notwithstanding this one, isolated misstep by the prosecutor, we conclude that there is no reasonable probability that the jury was influenced by the prosecutor’s remarks. (People v. Frye, supra, at p. 976.) The prosecutor’s comments undercut the defense argument on the urination point, but ultimately, the prosecutor told the jury that what was truly important to its decision was that the jury should be considering only the evidence in the case. We conclude that this brief reference to evidence outside the record, followed by the prosecutor’s direction that the jury should consider only the trial evidence, did not deny appellant a fair trial. Nor did the comments constitute prosecutorial misconduct under state law. (See Ibid.)
VIII. Cumulative Error
Appellant contends that the cumulative effect of the errors were not harmless beyond a reasonable doubt, thus mandating a reversal.
The only potential error we found was evidentiary, but such claims were forfeited and were in any event harmless. Cumulatively, any potential evidentiary error failed to meet the standard of demonstrating constitutional error and that the verdict would have been different had the trial court admitted the evidence. (People v. Gonzalez (2006) 38 Cal.4th 932, 961 & fn. 6.) In all other respects, there was no error, much less cumulative error.
IX. Correcting the Abstract of Judgment
Defendant contends that the minute order and the abstract of judgment fail to properly reflect the oral proceedings of judgment.
We agree.
Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186; People v. Mesa (1975) 14 Cal.3d 466, 471.) It is well established that “[t]o be effective, a sentence must be pronounced orally on the record and in defendant’s presence. [Citations.] Any later attempt to modify the sentence in writing is invalid. [Citation.] The only exception is where the error sought to be corrected is a clerical one [citation]; pronouncement of sentence is, however, a judicial act. [Citations.]” (People v. McGahuey (1981) 121 Cal.App.3d 524, 530.)
The trial court’s oral imposition of judgment included a $200 restitution fine, as well as a $200 parole revocation restitution fine, which was ordered stayed. Accordingly, we shall order the minute order and abstract of judgment corrected to reflect the judgment.
X. The People’s Contention
The People point out that at sentencing, the trial court ordered appellant to submit to AIDS testing pursuant to section 1202.1 and ordered him to pay a $200 fine pursuant to section 290.3. The People request that the abstract of judgment be amended to include these orders. (People v. Mitchell, supra, 26 Cal.4th at pp. 185–186.)
We shall order that the abstract of judgment be amended.
DISPOSITION
The judgment is affirmed. Nevertheless, the superior court shall cause its clerk to correct the clerical errors in the minute orders and abstract of judgment, as follows: (1) to include the $200 restitution and parole revocation restitution fines that were imposed at sentencing, as well as the stay of the latter restitution fine; (2) to include that appellant was ordered to submit to AIDS testing pursuant to section 1201.1; and (3) to reflect that at sentencing appellant was ordered to pay a $200 fine pursuant to Penal Code section 290.3. After its preparation, the clerk shall send the amended abstract of judgment to the California Department of Corrections and Rehabilitation.
We concur: BOREN, P. J., ASHMANN-GERST, J.