Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 04HF0237, Susanne S. Shaw, Judge.
Terrence Verson Scott, 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, Barry Carlton and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Froylan Cordova appeals from a judgment committing him to prison for various gang related crimes. He contends his trial was unfair because the judge engaged in misconduct and undermined his right to counsel of his choice. We disagree and affirm the judgment.
FACTS
Eduardo Lagunas was riding his bicycle in a Kmart parking lot when appellant pulled up to him in his vehicle and yelled, “Varrio Chico San Clemente.” Appellant also made a gang sign and asked Lagunas where he was from. Lagunas ignored him and continued on his way. When he looked back, though, appellant was running toward him and challenging him to fight. As Lagunas picked up his pace, appellant returned to his vehicle and took out a knife. He then began to drive in Lagunas’ direction.
Lagunas peddled home and ducked inside his house, just as appellant arrived outside his residence. While standing in Laguna’s front yard, appellant threw rocks at Lagunas’ house and threatened to kill him. He also repeatedly yelled out, “Varrio Chico.” Lagunas called 911, and Sheriff’s Deputy Richard Hassett was dispatched to the scene. Appellant left before he arrived, but while Hassett and Lagunas were talking, they saw appellant driving nearby. Hassett gave chase and found appellant’s vehicle abandoned a couple blocks away. A few minutes later, he found appellant hiding in a garage.
An expert on gangs testified that appellant is an active member of the Varrio Chico street gang and that his actions toward Lagunas were designed to benefit that gang. Based on all the evidence that was presented, the jury convicted appellant of making a criminal threat, brandishing a knife and street terrorism. It also found the threat and brandishing offenses were gang related. The court sentenced appellant to seven years in prison.
I
Appellant contends the trial judge, Susanne S. Shaw, engaged in a pattern of judicial misconduct that violated his right to a fair trial. Particularly, he asserts Judge Shaw exhibited such bias against his attorney and so interfered with his examination of witnesses and presentation of jury argument as to deprive him of due process and his right to effective assistance of counsel. We disagree. While some of Judge Shaw’s comments were impetuous and uncalled for, they did not infringe appellant’s constitutional rights.
Judge Shaw is now retired. She left the bench shortly before the State Commission on Judicial Performance issued an opinion that was critical of her for mistreating those who appeared before her and failing to control her behavior. (See Decision and Order Imposing Public Censure and Bar Pursuant to Stipulation, Inquiry Concerning Former Judge Susanne S. Shaw, No. 183 (Dec. 21, 2006).)
We begin by reviewing the alleged instances of misconduct. Before trial, defense counsel Richard Hurley objected to the prosecution’s offer of proof to support the gang allegations. He complained some of the evidence of Varrio Chico’s past crimes was unduly prejudicial, and he had not a chance to read all the information pertaining to those crimes. Judge Shaw told him, “Well, the problem is that you failed to look into it. I have always had the case up here. We’ve always had those predicates.”
Appellant describes this exchange as the first instance in which Judge Shaw was critical of Mr. Hurley. However, he also admits the criticism was “relatively benign” and “probably justified.” It also occurred outside the presence of the jury, unlike the next instance of alleged misconduct, which occurred while Mr. Hurley was cross-examining Lagunas in open court. Mr. Hurley tried to suggest Lagunas was really not that afraid of appellant and did not make much of an effort to get away from him in the parking lot. Here is how that issue played out:
“Mr. Hurley: You continued to ride and as you are riding, did you have to slow down for cars? Was there anything that kept you from riding full speed away from this person?
“[The prosecutor]: Objection. Vague as to time.
“The court: Well, you know, I happen to know that parking lot and that isn’t a very good depiction of it. It’s huge, . . . I don’t know where they are in the parking lot.
“By Mr. Hurley: Let me just ask you straight out, Mr. Lagunas. Explain this to me. How is it that a person parks a car and you are riding away from them and it takes, you know, a certain amount of time for a person to get out of a car. How is it that a person that’s this, well, this far away
“The court: Where are you going?
“By Mr. Hurley: Well, the point is how [could] a person this far away gain on you and end up this far away when you are on a . . . bicycle riding? How did that person catch up to you like that?
“[The prosecutor]: Objection. Argumentative. Assumes facts not in evidence.”
The court sustained the objection, and Mr. Hurley moved on to another area of questioning.
On recross, Mr. Hurley asked Lagunas about the order of certain events in the parking lot, and following Lagunas’ answer, Mr. Hurley said, “Okay. So, then – now I’m starting to understand a little better because before –” Judge Shaw interrupted and said, “You know what. We are not interested in what you understand or don’t. Just ask a question Mr. Hurley.” Mr. Hurley then asked two more questions before ending his cross-examination of Lagunas.
Later on, Mr. Hurley made a reference to a provision of the Penal Code when he asked Deputy Hassett if he was “the first officer to respond to the call, to the 415?” After Hassett answered yes, Judge Shaw interjected, “We don’t use numbers in here.”
Judge Shaw also interrupted Mr. Hurley’s proposed impeachment of the gang expert:
“By Mr. Hurley: Okay. Now, in this particular case, you testified in court at an earlier time; isn’t that right?
“A. That’s correct.
“Q. Okay. And in – you gave an opinion . . . that was different than the opinion that you gave on Thursday; wasn’t it?
“The court: Can I have your hands out of your pocket? Thank you.
“The witness: Say that again please.
“By Mr. Hurley: Okay. The opinion that you testified to previously in this case is different than the opinion that you testified to Thursday in this case in front of this jury.
“The court: An opinion as to what?
“Mr. Hurley: Okay. Well, are you instructing him not to answer?
“The court: No. I am instructing [you to] clarify what the opinion was, so he can have something to compare it to.
“Mr. Hurley: Okay.
“The court: If you want to impeach him, you have to do it a proper way.
“Mr. Hurley: I understand.
“The court: You have to show him a transcript.
“By Mr. Hurley: What I’m asking you is you gave an opinion in this case earlier where you testified in this case earlier of whether or not the acts associated with this case were done for the benefit of a gang. Okay? And you based that opinion on certain things.
“A. Okay.
“Q. All right. Just as you did on Thursday; correct? [¶] Your opinion is always based on facts; isn’t it?
“A. Yes.
“Q. And the opinion that you gave on Thursday was based on different facts than the opinion that you testified to in this case earlier?
“[The prosecutor]: Objection. Vague.
“The court: It is totally vague. Sustained. [¶] Are you talking about a preliminary hearing transcript?
“Mr. Hurley: That I am.
“The court: Okay. Then why don’t you show it to him and he can read it, because that’s the way it goes Mr. Hurley.
“Mr. Hurley: Because first it is proper for me to ask him if he remembers if there is a difference.
“The court: No. That is not a proper way of doing it.
“Mr. Hurley: Okay.
“The court: You have to show him the transcript, have him read it to himself and ask him.
“Mr. Hurley: I plan to, but I wanted to get his recollection first -- -
“The court: Let’s do it right.
“Mr. Hurley: -- to see if he remembers. [¶] I will do that because it speeds things up.
“The court: It is not because it speeds things up, it is because it is the proper way to do it.
“Mr. Hurley: Well, also and because I think it speeds things up.
“By Mr. Hurley: This is on page 49 of the preliminary hearing transcript
“The court: What lines? Hello.
“By Mr. Hurley: Beginning at line 24.”
While Mr. Hurley was continuing his cross-examination of the gang expert, Judge Shaw told him at various times to “stop being argumentative” and to “[k]eep [his] voice down please.”
Judge Shaw also criticized the manner in which Mr. Hurley attempted to impeach Hassett’s partner, Deputy Milton Thomas. When Mr. Hurley began to ask Thomas about something that came up during the preliminary hearing, Judge Shaw told him, “You don’t get to read it. If you want to ask him a certain thing that you think is an inconsistent statement, you get to show him that and say read it to yourself.” Mr. Hurley did as told and proceeded to impeach Thomas with some of his earlier statements.
After the prosecution rested, Judge Shaw spoke to Mr. Hurley out of the presence of the jury. She told him she did not like his practice of having appellant stand up every time the jury entered and exited the courtroom. Mr. Hurley said he adopted this practice as a “matter of respect,” but Judge Shaw said, “I don’t care. You don’t tell him to stand up. We tell him. The bailiff tells him. That’s the way it is.” Mr. Hurley replied, “Okay. It is your rules and I go by your rules.”
During closing argument, Mr. Hurley praised the jury system as a check against government power. He was saying that some of the early colonialists suffered unjust abuse at the hands of the British for not fitting in when Judge Shaw asked him, “Can you kind of relate that to our facts and argue our facts?” Mr. Hurley argued that nowadays, gang members are similarly targeted for not abiding by society’s norms.
Moments later, Judge Shaw asked Mr. Hurley to remove the keys from his pocket because they were making noise. Judge Shaw said, “That court reporter has to hang on every word and when you are banging your keys, it is very difficult for her.” After Mr. Hurley surrendered his keys, Judge Shaw told him, “Now you can do it all day long.” Judge Shaw also told Mr. Hurley to lower his voice at one point during his argument, saying “[e]xcuse me. We are not hard of hearing. Okay? Calm down.”
After Mr. Hurley resumed his argument, Judge Shaw interrupted him over another point:
“[The court]: You know, if you get any closer to those lawyers, I am going to get upset.
“Mr. Hurley: Which lawyers?
“The court: Those two. You know what? You might think it is funny?
“Mr. Hurley: I don’t. I don’t.
“The court: Mr. Hurley, don’t argue with me.
“Mr. Hurley: I am not.
“The court: I don’t need you breathing down their necks. Now, stand in front of the podium and do what I tell you without any further to do.
“Mr. Hurley. I am sorry.
“The court: Thank you.
“Mr. Hurley: I didn’t mean to get by [the prosecutor].
“The court: Nor the officer. He doesn’t need your hands in his face within four inches, so cool it.”
When Mr. Hurley finished his argument, the prosecutor asked him to “move [his] stuff” from the podium. While he was doing so, Judge Shaw said, “Let’s go. Come on. We need to move on here.”
Appellant contends Judge Shaw’s comments constituted a pattern of judicial misconduct. However, he never objected to them in the trial court, which raises the specter of waiver. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237 [claims of judicial misconduct are generally waived absent an objection in the trial court].) Appellant attempts to skirt the waiver rule by arguing it would have been futile to object, and no admonition could have cured the prejudice caused by the alleged misconduct. However, the futility exception typically arises when the court has overruled the defendant’s objections in a manner that suggests any further objections would be useless. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 821 [judge implied defense counsel was being an obstructionist for making objections].) Since appellant did not raise a single objection to Judge Shaw’s comments, the futility exception does not apply. Moreover, we do not believe the challenged remarks were incurably prejudicial or affected the structural integrity of the trial. Therefore, we decline appellant’s invitation to excuse the waiver rule in this instance. (Compare People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [lack of objection excused where trial judge instructed prospective jurors to lie on voir dire, thus rendering the defendant’s trial fundamentally unfair].)
Even if appellant had not waived his claim of judicial misconduct, it would not carry the day. “Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court ‘commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution’ [citation.] Nevertheless, ‘[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’ [Citation.] Indeed, ‘[o]ur role . . . is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 78.)
Appellant does not so much take issue with the legal propriety of Judge Shaw’s comments as he does her tone and demeanor. He contends she was “sarcastic,” “berating,” “humiliating” and “belittling” in her dealings with defense counsel, much like the trial judge in People v. Fatone (1985) 165 Cal.App.3d 1164. But in Fatone, the judge’s remarks took on a different tone in that they went to the very core of defense counsel’s integrity and ability. Indeed, the judge told the jury that defense counsel’s conduct was not only improper, but unethical as well. (Id. at p. 1173.) Here, Judge Shaw was very sharp – and, sadly, often incorrect – in her criticism of Mr. Hurley’s questioning techniques and his style in general. Yet she never impugned his integrity or implied he was anything less than honest.
To be sure, Judge Shaw should have avoided mentioning that she was personally familiar with the parking lot in question. She also could have been more patient in terms of explaining her rulings and advising Mr. Hurley on certain matters. And, as the Attorney General admits, there was no need for her to insist on having Mr. Hurley show the deputies their prior testimony before attempting to impeach them with it. (See Evid. Code, § 769.) But nothing Judge Shaw said implied she was aligned with the prosecution or biased against the defense. Again, her main problem with Mr. Hurley related to his tactics and mannerisms — she never once maligned the merits of his case or the propriety of his cause. Her particularity with respect to how he tried the case, although a bit excessive, did not make the trial unfair. There was annoying egotism and unfortunate bullying, but no judicial misconduct or deprivation of appellant’s constitutional rights.
II
Appellant also faults Judge Shaw for failing to protect his Sixth Amendment right to counsel. He complains he was not allowed counsel of his choice, and his attorney, Mr. Hurley, had a conflict of interest. We find these complaints unjustified, as the record does not show appellant’s Sixth Amendment rights were violated in any respect.
At his preliminary hearing, appellant was represented by a public defender. Three weeks later, he substituted in a private attorney named William R. Kennon, and over the next few months, Mr. Kennon represented appellant at various pretrial hearings. As the case got closer to trial, Mr. Hurley made a few special appearances for Mr. Kennon on the case. Mr. Hurley also participated in the plea negotiations. However, Mr. Kennon remained appellant’s attorney of record.
On the eve of trial, Mr. Kennon told the court he was not ready to proceed. Nonetheless, Judge Shaw ordered him to appear for trial in two days. Much to Judge Shaw’s chagrin, Mr. Kennon did not comply with the order. Mr. Hurley appeared in his stead, explaining that Mr. Kennon was in Riverside, “handling some matter out there.” Judge Shaw threatened to issue a bench warrant for Mr. Kennon and hold him in contempt of court. When Mr. Hurley asked the court what would happen if appellant wanted to hire him, the discussion turned to Mr. Hurley’s readiness to try the case. Mr. Hurley said he knew the facts and was actually brought in on the case to try it. However, he said that a defense investigator was still doing some work on the case and that he would need a couple of days to see what the investigator turned up before he could proceed with trial.
Judge Shaw recognized Mr. Hurley had appeared in the case and was familiar with the facts. However, she was concerned that Mr. Kennon was still appellant’s attorney of record. She asked the prosecutor what he thought of the situation, and he deferred to the court. At that point, appellant chimed in and declared that he wanted to fire Mr. Kennon and have Mr. Hurley be his attorney. Judge Shaw advised appellant that this was an important decision and that he could have a public defender represent him in the case if that is what he wanted. Appellant said that while he was not sure about everything that was going on in his case, he was sure that he wanted Mr. Hurley to be his attorney. His only concern was that the trial be pushed back a few days, so that the investigative work Mr. Hurley alluded to could be completed. Judge Shaw obliged his request, continuing the trial for some two weeks.
The following day, Mr. Hurley represented Mr. Kennon at a hearing before Judge Shaw. Rather than holding Mr. Kennon in contempt for failing to appear the previous day, Judge Shaw suggested that he “make a donation to our court costs for $500” instead. Mr. Kennon agreed to this proposal. He also explained to the court that he had hired Mr. Hurley to try the case and that he believed Mr. Hurley was fully prepared to do so.
Appellant argues Mr. Hurley improperly solicited his case, and before allowing Mr. Hurley to take over as his attorney, the court should have had appellant consult with independent counsel about the matter. We disagree.
The prohibition against attorney solicitation is designed to protect “citizens from the probability of fraud, deception, and overreaching inherent in the practice of ‘ambulance chasing.’” (People v. Kitsis (1977) 77 Cal.App.3d Supp. 1, 6.) To that end, “A lawyer must not solicit professional employment from a prospective client . . . if the prospective client has made known to the lawyer a desire not to be solicited by the lawyer, or the solicitation involves coercion, duress or harassment.” (7 Am.Jur.2d (2008) Attorneys at Law, § 73, citing Rule 7.3(b) of the ABA Model Rules of Professional Conduct; see also Bus. & Prof. Code, § 6152 [general prohibition against solicitation].)
In this case, there is no evidence of any fraud, coercion or overreaching. Rather, Mr. Hurley fully and clearly explained the circumstances of his appearance to the court in the presence of appellant. And as he had appeared on the case before and participated in plea negotiations, he certainly was no stranger to the case or appellant. At one point, he did ask, “What if [appellant] wants me to represent him instead of Mr. Kennon?” Appellant describes this as an improper solicitation, but Mr. Hurley’s question was directed to Judge Shaw, not appellant. And he did not solicit appellant’s representation; he simply wanted to know what would happen if appellant wanted him to be his attorney. Appellant obviously felt comfortable about this because he jumped at the chance to hire Mr. Hurley after listening to the discussion that had occurred. Judge Shaw even gave appellant a chance to reconsider and to have a public defender handle his case, but he was steadfast in his desire to hire Mr. Hurley. Under these circumstances, there was no improper solicitation or any need to have appellant consult with independent counsel. Appellant’s right to counsel of his choice was not infringed.
Appellant also contends Mr. Hurley had a conflict of interest because he represented Mr. Kennon at his contempt hearing. He asserts, “To protect Kennon’s interest, it was necessary for Hurley to downplay Kennon’s lack of investigation by showing that appellant’s case could proceed with minimal delay under Hurley’s representation. It was in appellant’s interest to have an attorney thoroughly prepare the case without stringent time constraints.” Appellant contends the court, at the very least, should have held a hearing as to any potential conflict of interest and asked appellant how he felt about the issue.
Appellant’s argument implies: 1) Mr. Hurley was not ready to try the case; 2) the only reason he said otherwise was to protect Mr. Kennon; and 3) appellant was somehow prejudiced by virtue of his representation of Mr. Kennon. None of these implications is supported by the record. The fact is, the contempt hearing did not take place until after appellant hired Mr. Hurley as his attorney and after the court granted a two week trial continuance. So, as far as appellant is concerned, it really did not matter how Mr. Hurley tried to mitigate Mr. Kennon’s actions. By then there simply was no danger he would have to try appellant’s case unprepared. Therefore, the court was not required to hold a conflict of interest hearing, and there was no infringement of appellant’s right to effective assistance of counsel. No cause for reversal has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.