Opinion
B228648
12-29-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGEL ANTHONY GOLIGHTLY, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. KA088850)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Angel Anthony Golightly appeals from the judgment entered following a jury trial that resulted in his convictions for false imprisonment and robbery. He was sentenced to a prison term of three years eight months.
Golightly contends: (1) the trial court erred by admitting evidence regarding his prior uncharged misconduct; (2) the trial court committed judicial misconduct; and (3) the cumulative effect of the purported errors requires reversal. Discerning no reversible error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People's evidence.
(i) The robbery.
On the evening of November 22, 2009, Benjamin Wang drove his car into the driveway of his Rowland Heights home. While still inside his vehicle, Wang received a call from a friend at 6:54 p.m. Less than a minute later, Golightly opened the driver's side door of Wang's car. Golightly demanded, " 'Give me all your shit. I don't want to take anything out if I don't have to.' " Wang interpreted Golightly's comments to mean that he had a gun. Wang feared for his life.
Golightly leaned into the car. Up until that point, Golightly's face had been obscured by the hood of his sweatshirt and Wang had not recognized him. When the dashboard lights illuminated Golightly's face, Wang "almost immediately" recognized him as an acquaintance whom he knew by the name of " 'Loco.' " Mark Burgos, Golightly's cousin, was an acquaintance of Wang's and had introduced Wang to Golightly several years before. Additionally, Wang had seen Golightly walking around Wang's neighborhood "more [times]" than he could "count" over the years, including approximately one month before the robbery. Wang said to Golightly, " 'Hey, man, aren't you Loco? I know you. I know Mark Burgos.' " Golightly pulled back out of the car and replied, " 'whoever you think I am, I'm not him and whoever else you think I'm going to be I'm not going to be him.' " Wang stated that he did not want any trouble, and told Golightly to " 'take whatever' " he wished. Wang gave Golightly his wallet, which contained a little over $100. Golightly took the money and Wang's identification, and returned the wallet to Wang.
Golightly then entered the passenger side of the car and told Wang to "drive out." Wang pulled out of the driveway and headed toward a main street. After approximately 15 to 20 seconds he parked at a spot which Golightly "hinted" would be a good location. Golightly then went through Wang's glove compartment and backpack. Before leaving the car, Golightly said, " 'I know you have a mom and dad and sister. I know where you live, but you better not tell anyone.' " Wang interpreted this statement as a threat to himself and his family. Golightly exited the car and walked east, toward Bolanos Avenue. Wang made a U-turn and drove around for a few minutes before heading home. As he was driving, he received another telephone call at 7:02 p.m. Wang did not call police or disclose the incident to his family that evening because he was "in a state of shock" and did not know what to do.
(ii) The investigation.
The next morning, Wang reported the incident to Los Angeles County Sheriff's Deputy John Knopp. Wang told Knopp that he knew Golightly as "Loco." He described Golightly as a male Black, approximately 25 years old, between 5 feet 10 inches and 6 feet tall, between 160 and 180 pounds, with a goatee and "Afro" style hair, wearing a gray pullover sweatshirt and blue and gray gloves. Wang unhesitatingly identified Golightly as the perpetrator in a pretrial six-pack photographic lineup shown to him the day after the robbery. He positively identified Golightly as the robber at trial.
On November 24, 2009, another deputy observed Golightly walking on the street, wearing a gray sweatshirt, and took him into custody. Later that day a van in which Golightly was living was searched. A pair of black, gray, and yellow gloves was found inside. At trial Wang identified the gloves as those worn by the robber.
Golightly was interviewed by a sheriff's detective and denied having any involvement in the robbery. He stated that he had spent most of November 22, 2009 with his girlfriend, Bryanna Vahimarae. At approximately 6:00 p.m., Golightly was at Bryanna's house located on Bolanos Avenue. At approximately 7:00 p.m., the couple went to purchase and smoke marijuana, and to get gas for the car.
For ease of reference, we hereinafter sometimes refer to Bryanna Vahimarae and her mother, Crystal Vahimarae, by their first names.
According to Bryanna, on November 22, 2009, she and Golightly, who was her fiancé, attended church together in Los Angeles around noon and remained there until approximately 3:30 p.m. Thereafter they ate lunch at a restaurant, drove back to Rowland Heights, drove to a location where they had sexual relations in her car, and went to purchase marijuana at another location. They arrived at her home on Bolanos Avenue between 6:45 and 7:00 p.m. Golightly waited outside in the car while Bryanna went inside her apartment to change clothes. Bryanna initially told a detective that she had spent 20 to 25 minutes inside her residence changing clothes; at trial she testified she had spent less than 10 minutes changing, and did not recall telling the detective something different. The couple then drove to the Commerce Casino. According to Bryanna, traffic between Rowland Heights and the Commerce Casino was heavy that evening.
A videotape played for the jury showed Bryanna and Golightly entering the Commerce Casino at 7:58 p.m. on November 22, 2009. Golightly was wearing a gray sweatshirt. The approximate distance between Bryanna's house and the Commerce Casino was 22 miles, and was a drive of approximately 25 minutes, without traffic.
Recordings of two jailhouse telephone calls between Bryanna and Golightly were played for the jury. In a conversation occurring on December 4, 2009, Golightly told Bryanna to have Mark Burgos talk to Wang. Golightly asked, "Did you tell Mark to go hollar [sic]at him?" Bryanna responded that Mark was scared because there was a protective order in the case. Golightly stated, "That's alright, tell him just don't come out and threaten him." Bryanna reiterated that Mark was scared, and Golightly responded, "Somebody has to do it man, it's the only way. [¶] . . . [¶] Just tell him like look, look, . . . if you come to court just tell them it's a case of mistaken identity, you hear me? [¶] . . . [¶] And then just tell them like he made a mistake and then it should be all over for me from that point on, just tell them well, he admitted a mistake on id-ing me and he don't know me and then everything should be cool. If you can do that then everything will be okay. [¶] Make sure Mark do it babe . . . ."
In a conversation between Bryanna and Golightly recorded on April 7, 2010, Golightly stated that he had spoken to an attorney regarding the elements of kidnapping. Bryanna observed that kidnapping could be committed by means of force or fear, and use of a weapon was not an element. Golightly responded, "I didn't ever threaten him though, I didn't intimidate him." Bryanna replied, "Yeah but let him, let this boy tell it you did." The following exchange transpired:
"[Golightly]: You gotta understand though, that he said we, I agreed to the location, so therefore we had a mutual agreement, right?
"[Bryanna]: Well that's what he said.
"[Golightly]: Ask him, so then it's not kidnapping. [¶] . . . [¶] Ask him that's all, see what he says. [¶] . . . [¶] That one element of kidnapping and all that. [¶] . . . [¶] He consented to it. . . . But I never stopped him on his own; he said did I agree therefore we had a mutual agreement."
The parties stipulated that Golightly was approximately 5 feet 7 inches tall, weighed approximately 170 pounds, and was 22 years old at the time of the incident.
b. Defense evidence.
Bryanna's mother, Crystal Vahimarae, testified for the defense. On November 22, 2009, she observed Golightly waiting in her daughter's car while Bryanna changed her clothes inside their apartment. The prosecutor briefly questioned Crystal regarding a prior incident in which Golightly had engaged in domestic violence against Bryanna.
This evidence is discussed in more detail post.
2. Procedure.
Trial was by jury. Golightly was convicted of false imprisonment (Pen. Code, § 236) a lesser offense of kidnapping for robbery as charged in count 1, and second degree robbery (§ 211). The jury deadlocked, and a mistrial was declared, on count 3, criminal threats, and that charge was dismissed in furtherance of justice. (§ 1385.) The trial court sentenced Golightly to a term of three years eight months in prison. Among other things, the court ordered victim restitution and imposed a restitution fine, a suspended parole restitution fine, a court security fee, and a criminal conviction assessment. Golightly appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. Admission of evidence of Golightly's prior misconduct was harmless error.
a. Additional facts.
Prior to the presentation of evidence, and at various points thereafter during the proceedings, the parties and the court discussed the admissibility of evidence that in September 2009, in Orange County, Golightly had committed domestic violence against Bryanna and smashed the windows of her car with a brick (hereinafter "the Orange County incident"). The prosecutor advised the court that she did not intend to offer the evidence in her case-in-chief.
Before Crystal testified, defense counsel advised that he intended to elicit that Crystal had observed Golightly waiting in the car. Defense counsel argued that this line of inquiry would not "open the door" to evidence of the Orange County incident. The trial court opined that if Crystal so testified, the People would be entitled to explore why Golightly was not allowed to wait in Bryanna's house, as well as whether Golightly and Crystal were on good terms. The court observed that whenever a witness testifies, his or her bias for or against the defendant is an issue. Accordingly, the People would be allowed to "probe whether or not there is existing bias as to what [Crystal's] feelings are about [Golightly], whether she likes him or dislikes him." The court ruled that any inquiry into the Orange County incident would have to be "very limited in scope" to avoid undue consumption of time and confusion of the issues.
Crystal thereafter testified on direct examination that on November 22, 2009, between 5:00 and 6:00 p.m., Bryanna came home to change her clothes. Crystal asked Bryanna if Golightly was in the car outside. Crystal then went to the apartment's balcony and waved at Golightly, who was sitting in the passenger seat of Bryanna's parked car, outside the apartment. Before cross-examination commenced, the prosecutor asked to approach the bench. The court stated, "Well, People, you can inquire based upon the court's ruling." The prosecutor then elicited that Crystal's elderly parents refused to allow Golightly in the family home due to a "[p]ast altercation," but Crystal herself did not have bad feelings towards him. Over defense counsel's objection, the following testimony transpired:
"[The prosecutor]: The September 2009 incident where he took a brick and broke every window in her car, that didn't bother you?
"[Crystal]: I have to forgive. I'm a Christian and I forgive people. I believe people can change so I do not judge people. It's up to God to judge people.
"[The prosecutor]: We're talking about the September 2009 incident where he
"[Crystal]: That is correct. You heard me straight.
"[The prosecutor]: Where he physically attacked your daughter?
"[Crystal]: Like I said, there are certain circumstances to where I do not judge people.
"The Court: So the bottom line is despite that incident or altercation, as you have described it, you still are friendly enough with Mr. Golightly to see him subsequent to that event and wave to him?
"[Crystal]: That is correct.
"The Court: Very good. [¶] . . . Let's go into another area."
b. Discussion.
Golightly argues that admission of Crystal's testimony regarding the Orange County incident violated his due process rights and was prejudicial error. He urges that the evidence was irrelevant and served only to imply to the jury that he was the type of person who would commit crimes and who "needed to be punished."
Evidence that a defendant committed misconduct other than that currently charged is generally inadmissible to prove conduct on a specified occasion, or to show the defendant has a bad character or a disposition to commit the charged crime. (Evid. Code, § 1101, subd. (a); People v. Kelly (2007) 42 Cal.4th 763, 782; People v. Gutierrez (2009) 45 Cal.4th 789, 827; People v. Kipp (1998) 18 Cal.4th 349, 369.) However, such evidence is admissible if it is relevant to prove other facts, including witness bias. (Evid. Code, § 1101, subd. (b); People v. Carter (2005) 36 Cal.4th 1114, 1147; People v. Freeman (1994) 8 Cal.4th 450, 494 [evidence that an alibi witness and the defendant had been crime partners in an incident unrelated to the charged crime was admissible because it was probative of the witness's credibility]; People v. Humiston (1993) 20 Cal.App.4th 460, 479.) " 'The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1243.)
Even if other crimes evidence is admissible under Evidence Code section 1101, it should be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create a substantial danger of prejudice, of confusing the issues, or of misleading the jury. (People v. Gutierrez, supra, 45 Cal.4th at pp. 827-828; People v. Davis (2009) 46 Cal.4th 539, 602; People v. Kipp, supra, 18 Cal.4th at p. 371.) " 'Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care.' " (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115.) We review the trial court's ruling for abuse of discretion. (People v. Davis, supra, at p. 602; People v. Carter, supra, 36 Cal.4th at p. 1147.)
We conclude that evidence of the Orange County incident should have been excluded. Its only possible relevance was to show that Crystal had a reason to dislike Golightly; therefore she would have been unlikely to wave at him; and accordingly her testimony that she saw him in the car outside her apartment must have been untruthful. There are at least two problems with this inferential chain. First, even if Crystal did not think highly of Golightly, that fact would not have precluded her from observing him in front of the apartment at the relevant time. Second, if in fact she disliked him so intensely as to preclude her from merely waving at him from a distance, it is difficult to square this state of affairs with the People's theory that she was perjuring herself at trial to protect him. The two premises are dissonant. Contrary to the People's argument, the evidence was not relevant to rebut Crystal's testimony that she and Golightly "shared a good and peaceful relationship." Crystal did not so testify, and in any event, the nature of Golightly's relationship with Crystal had no relevance except to the minimal extent it bore on the question of whether she would have waved at him. Thus, the evidence lacked any significant probative value and should have been excluded under Evidence Code section 352.
Nonetheless, admission of the evidence was harmless under any standard. The erroneous admission of evidence requires reversal only if it is reasonably probable that the appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp (1999) 20 Cal.4th 826, 878; People v. Avitia (2005) 127 Cal.App.4th 185, 194.)
The challenged testimony was very brief, and was but a minimal part of the People's case. The Orange County incident itself bore no resemblance to the charged crimes, making it unlikely the jury would infer that Golightly had a propensity to commit robbery. The jury was given a limiting instruction, advising that evidence of the Orange County incident could not be used to infer Golightly had a bad character or was disposed to commit the charged crimes. We presume jurors follow the court's limiting instructions. (People v. Ervine (2009) 47 Cal.4th 745, 776; People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
That instruction provided: "During the trial, certain evidence regarding a rock-throwing incident, damaging a vehicle, was presented, implicating the defendant. That evidence was admitted for a limited purpose and for no other. You may consider that evidence for the sole purpose of evaluating the nature of the relationship that existed between Crystal Vahimarae and the defendant Angel Golightly. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. The People must still prove every charge beyond a reasonable doubt."
Moreover, the People's evidence was overwhelming. The victim, Wang, was acquainted with Golightly and recognized him as soon as the dashboard lights on the car illuminated Golightly's face. The men had been introduced by Golightly's cousin, Burgos. Wang had seen Golightly around the neighborhood on many occasions, including a month prior to the robbery. Thus, there was no realistic danger of misidentification. Contrary to Golightly's argument, there was virtually no chance jurors would conclude Wang misidentified appellant due to the lighting at the crime scene and minor discrepancies in Wang's description of the robber. Wang's description of the robber was generally consistent with Golightly's appearance and clothing. He consistently identified Golightly as the culprit, and identified the distinctive tricolored gloves found in Golightly's van as those worn by the robber.
Golightly points out that Wang told deputies the robber wore a gray sweatshirt, but did not mention a volleyball logo which Bryanna testified was present on the sweatshirt; told police the assailant was between 5 feet 10 inches and 6 feet tall, whereas Golightly was 5 feet 7 inches; and described the assailant's gloves as gray and blue, whereas Golightly's gloves were black, gray, and yellow.
Any doubts the jury could conceivably have entertained about the identification would have been dispelled by the taped jailhouse conversations. In the first, Golightly asked Bryanna to have Burgos attempt to dissuade Wang from testifying. Golightly's desire to have Burgos talk to Wang was strong circumstantial evidence that Burgos had, in fact, introduced the men as Wang had stated, thereby bolstering the credibility of Wang's identification. In the second taped jailhouse call, Golightly appeared to acknowledge that he was indeed the person who had interacted with Wang during the robbery. In the face of this evidence, Crystal's brief testimony regarding the Orange County incident could have had no significant effect on the jury. Thus, even if the Chapman standard for federal constitutional error was to apply, as Golightly contends, the error was nonprejudicial. (Chapman v. California (1967) 386 U.S. 18, 24.) It is clear beyond a reasonable doubt that Golightly would not have obtained a more favorable result had the evidence been excluded.
2. The trial court did not commit judicial misconduct.
Next, Golightly contends the trial court abandoned its role as a neutral arbiter, and committed judicial misconduct, by questioning Bryanna and Crystal in a manner "that favored the prosecution, disparaged defense witnesses, and suggested the court was aligned with the prosecution," thereby infringing his constitutional right to due process. We discern no error.
a. Additional facts.
1. Preclusion of hearsay during Bryanna's testimony.
During direct examination, Bryanna began, on several occasions, to testify to information that was inadmissible hearsay. In each instance, the trial court politely interrupted her testimony and precluded the hearsay evidence from coming in.
Bryanna repeatedly attempted to testify that Wang had approached Burgos and attempted to speak with him. In the first instance, the court stated, "Let me stop you there. You're getting into areas that are legally not permissible. So I want you to answer the question that the prosecutor asks without elaboration and going into [an] area that is not part of the answer to a question." In the second instance, the court admonished, "Miss Vahimarae, I know you have a lot of information you feel is important for us to hear but you must answer the questions and not go off on these tangents." When, in response to another question, Bryanna again responded that Wang "had first initially approached Mark," the court interjected, "You seem to want to tell us about that. Again, just answer the question yes or no if that's the appropriate response."
The prosecutor attempted to impeach Bryanna by questioning her about her commission of welfare fraud, her procurement of drugs, and untruthful statements she had placed on her social networking site. The prosecutor followed these inquiries by asking whether Bryanna was willing to lie or "hide the truth" for Golightly. The prosecutor then queried, "You know that [Golightly] was there with [Wang], don't you?" Bryanna replied that Golightly had remained in the car the entire time she was changing. The prosecutor asked how Bryanna knew Golightly was "in the vehicle the entire time you were in [the] house?" The following exchange transpired:
"[Bryanna]: My mother walked outside, waved hi to him while she was on the porch, while I was inside the house. She came to me. She saw me run up the stairs
"The Court: Let me interrupt you.
"[Bryanna]: This is ridiculous.
"The Court: Well, it's ridiculous that you're going into issues that you were not witness to. I cannot permit that. That's misleading.
"[Bryanna]: Witness to what? I'm sorry?
"The Court: Madam, you and I are not going to have an argument
"[Bryanna]: No. We are not arguing.
"The Court: You are not to say anything until you're given leave by this court to say something. So just remain silent and listen. [¶] You cannot testify as to what other individuals either observed or did that you were not a witness to, including your mother. [¶] So those comments by the witness are now stricken. The jury is admonished to disregard that information and treat it as though it did not occur. [¶] People, ask another question."
2. Questions to Bryanna regarding marijuana.
Later, the prosecutor elicited that Bryanna had purchased marijuana on the evening of November 22, 2009, and that she and Golightly smoked it on the way to the casino. Of its own accord, the trial court asked Bryanna several additional questions on the topic, including the time and place of the sale, the seller's name, Bryanna's relationship to him, the amount purchased, and the price paid. Bryanna testified that she had purchased marijuana from the same supplier a "[c]ouple times," and he was a friend of Golightly's. When Bryanna stated she was "not too sure" of the seller's last name, the court queried, "Well, you've gone to purchase this marijuana on multiple occasions. Are you telling us you don't know the person's name?" Bryanna responded that the seller was Golightly's friend, not hers, and she was "not too familiar" with him.
Bryanna had been given immunity in regard to her purchase and use of marijuana on the night in question.
3. Preclusion of hearsay during Crystal's testimony.
After Crystal testified that she saw Golightly from the balcony and waved at him, the prosecutor queried why Crystal had not previously provided that information to police. Defense counsel objected that the question assumed a fact not in evidence. The trial court sustained the objection on the ground the question was vague. The prosecutor then stated, "Well, this is the first that I've been advised of your name as a potential witness in this case. I received this document[.]" Defense counsel asked to approach. The court admonished the prosecutor, "we need to hear questions and not statements or comments. . . . [¶] People, please just simply ask a question." The prosecutor then asked whether Crystal had ever attempted to contact a certain detective. Defense counsel objected. At that point the court interposed its own question, "Given that you had information as to Mr. Golightly's whereabouts on November 22, 2009, between the hours of 5 and 7 p.m., did you make any effort on your own to notify police as to his whereabouts on that date and time?" The following transpired:
"[Crystal]: I expressed to my daughter Bryanna Vahimarae that if she needed me to testify that I would be a credible witness.
"The Court: Wait. Wait. Wait. Wait. You're not answering my question. My question is, did you make any efforts to notify law enforcement[?]
"[Crystal]: No, I did not. I notified my daughter and said if she needed me
"The Court: Ma'am, please. This must run in your family. If you would just simply answer the questions.
"[Crystal]: No, I did not.
"The Court: Thank you. [¶] People, next question."
4. Questions to Crystal regarding her review of police reports.
Out of the presence of the jury, the court became aware that Bryanna was in possession of a copy of the preliminary hearing transcript, the police report, and other materials. During Crystal's cross examination, the prosecutor asked whether Crystal had reviewed the police reports. Crystal said that she had. The court then asked:
"The Court: Well, the police reports that you reviewed, did you review the statements of all witnesses who were documented in those reports?
"[Crystal]: I just briefly read over it. I don't recall statements per se, just basically I asked what was the reason.
"The Court: So, in other words, you took a personal interest in Mr. Golightly's case?
"[Crystal]: We sat at the dinner table
"The Court: Yes or no. Did you take a personal interest?
"[Crystal]: I'm recalling. I'm sorry. Just one moment and let me recollect.
"The Court: Ma'am, no. No. Just answer the question. My question calls for a yes-or-no answer. Did you take a personal interest in Mr. Golightly's case? Yes or no.
"[Crystal]: I took an interest."
b. Discussion.
A trial court has the " ' " 'power, discretion and affirmative duty . . . [to] participate in the examination of witnesses whenever he [or she] believes that he [or she] may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause.' " [Citations.]' " (People v. Harris (2005) 37 Cal.4th 310, 350; People v. Cook (2006) 39 Cal.4th 566, 597; People v. Hawkins (1995) 10 Cal.4th 920, 948, disapproved on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Raviart (2001) 93 Cal.App.4th 258, 270; Evid. Code, § 775.) "A court may control the mode of questioning of a witness and comment on the evidence and credibility of witnesses as necessary for the proper determination of the case. [Citations.] Within reasonable limits, the court has a duty to see that justice is done and to bring out facts relevant to the jury's determination. [Citation.]" (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.)
However, a court may not assume the role of either the prosecution or the defense. (People v. Cook, supra, 39 Cal.4th at p. 597; People v. Perkins (2003) 109 Cal.App.4th 1562, 1567; People v. Carlucci (1979) 23 Cal.3d 249, 258.) The court's questioning must be temperate, nonargumentative, and scrupulously fair, and must not convey to the jury the court's opinion of the witness's credibility. (People v. Cook, supra, at p. 597; People v. Hawkins, supra, 10 Cal.4th at p. 948; People v. Rigney (1961) 55 Cal.2d 236, 241.) A trial court may not " ' "officiously and unnecessarily usurp[] the duties of the prosecutor . . . and in so doing create[] the impression" ' " that he or she is allied with the prosecution. (People v. Harris, supra, 37 Cal.4th at p. 347.) A trial court also commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense. (People v. Sturm (2006) 37 Cal.4th 1218, 1233; People v. Santana, supra, 80 Cal.App.4th at pp. 1206-1207.) Trial judges must be " 'exceedingly discreet' " in what they say and do in the jury's presence, and must avoid comments that convey to the jury that the judge does not believe a witness's testimony. (People v. Sturm, supra, at pp. 1237-1238.) We review the propriety of judicial comments on a case-by-case basis in light of the content and circumstances. (People v. Cash (2002) 28 Cal.4th 703, 730.)
The People argue that, because Golightly did not object to the court's conduct below, he has waived his contention on appeal. (People v. Cook, supra, 39 Cal.4th at p. 598; People v. Samuels (2005) 36 Cal.4th 96, 114; People v. Harris, supra, 37 Cal.4th at p. 350.) Golightly counters that objections would have been futile (People v. Sturm, supra, 37 Cal.4th at p. 1237), or alternatively that his counsel was ineffective for failing to object. We need not reach the issue of waiver, however, because we conclude the claim fails on the merits in any event.
We have reviewed the entire record, and find no evidence of prejudicial judicial misconduct. The trial court was temperate and polite throughout the proceedings. The court interposed questions to both prosecution and defense witnesses in an evenhanded manner, during examination conducted by both the prosecutor and defense counsel, in roughly equal measure. The court's questions were unbiased and aimed at clarifying the record. (See People v. Raviart, supra, 93 Cal.App.4th at p. 270.) Contrary to Golightly's contention, the court did not obviously favor the People's witnesses; indeed, in several instances the court's questions assisted defense counsel's examination of witnesses. Although Golightly urges that the judge's questions "disparaged the defense case," our review of the record in its entirety convinces us otherwise. Viewing the trial as whole, we are confident that the jury would not have had the impression that the court was allied with the prosecution or disbelieved the defense witnesses.
For example, Detective Daniel Duran, the investigating detective, admitted on cross-examination that Bryanna had come to the sheriff's station and told him she had receipts from the Commerce Casino. In contrast to Bryanna's testimony, however, Duran did not recall Bryanna telling him that there was a videotape of the couple entering the casino. Duran opined that a videotape of the couple at the casino had no bearing on the case in any event. Duran admitted he had not looked at the video, but stated that it could have had "no bearing on what my victim is telling me whether this crime occurred and where it occurred." The trial court queried: "Detective, let me interject. If you haven't seen the videotape and hypothetically the videotape showed Mr. Golightly inside the casino at the same time Mr. Ben Wang was victimized, wouldn't it have a bearing at that point? [¶] . . . [¶] . . . Without viewing the videotape, you cannot make that conclusion whether or not it had a bearing; isn't that correct?"
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The four specific instances cited by Golightly do not demonstrate prejudicial judicial misconduct. In the first cited instance, the court interrupted Bryanna's testimony when it was obvious her answer was going to be based on hearsay evidence. The court acted properly, in accordance with its duty to control the proceedings (§ 1044; Evid. Code, § 765, subd. (a)), in excluding such hearsay testimony. Golightly contends that the court's treatment of Bryanna was unfair because the prosecutor's question called for the answer she gave. That may be so, but the court's truncation of Bryanna's answer was appropriate for that very reason. The court's initial statement was neither impolite nor disparaging; the court simply said, "Let me interrupt you." Bryanna, perhaps frustrated by the limits of the evidentiary rules, disrespectfully responded, "This is ridiculous." The court, again in line with its duty to control the proceedings, appropriately told her that argument with the court would not be tolerated. The court's use of the word "ridiculous" in response to Bryanna's statement was not ideal, but was an isolated instance that would not have suggested to the jury that the court disbelieved Bryanna or was allied with the prosecution.
Nor did the court commit misconduct by asking Bryanna a series of questions about marijuana use. The subject was already in evidence and was addressed at some length by both sides during the trial. The question of the couple's marijuana use was relevant to Golightly's alibi. The defense theory was that Golightly could not have been the robber because he was with Bryanna the entire afternoon: going to church, eating lunch, engaging in sexual relations, obtaining and smoking marijuana, and patronizing a casino. The court's inquiries into the details of the marijuana transaction were not designed to make Bryanna "look bad," as Golightly avers; instead their purpose was to test the veracity of Bryanna's account that she and Golightly were actually off buying marijuana at or near the time when Golightly was alleged to have been robbing Wang.
As to the third complained of instance, as our recitation of the facts ante makes clear, the court rephrased the prosecutor's query in order to streamline the proceedings and forestall the prosecutor's somewhat clumsy inclusion of evidentiary facts in her question. When Crystal's response amounted to hearsay evidence, the court appropriately directed her to testify only to what she had personally observed. The court's off-hand comment, "[t]his must run in your family," was ill-advised, but was not a commentary on Crystal's credibility. This brief interchange, in the context of the trial as a whole, was unlikely to suggest to jurors that the court was biased. Nor are we persuaded by Golightly's argument that the question telegraphed to jurors the court's purported view that Crystal's failure to go directly to police was highly significant. The question originated with the prosecutor, not the court, a fact that would have been apparent to jurors.
Finally, the court's brief inquiry into whether Crystal had taken a personal interest in the case was not significant enough to suggest to jurors that the court was an adversary to the defense. The fact Crystal had reviewed the police reports and other materials was obviously relevant to the question of whether her testimony was accurate or tailored to support the alibi defense, and the court's questions regarding her perusal of the reports and her interest in the case were neither disparaging nor indicative of alignment with the prosecution. " 'Numerous courts . . . have recognized that it is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible.' [Citation.] ' "[I]t has been repeatedly held that if a judge desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them. Considerable latitude is allowed the judge in this respect as long as a fair trial is indicated both to the accused and to the People. Courts are established to discover where lies the truth when issues are contested, and the final responsibility to see that justice is done rests with the judge." ' [Citations.]" (People v. Raviart, supra, 93 Cal.App.4th at p. 270.)
People v. Santana, supra, 80 Cal.App.4th 1194 and People v. Sturm, supra, 37 Cal.4th 1218, cited by Golightly, do not compel a different result. In Santana, we concluded that the trial court intervened as an adversary to such an extent as to require reversal of the judgment. (People v. Santana, supra, at p. 1207.) There, the trial court "repetitiously, disparagingly and prejudicially questioned" three defense witnesses. (Ibid.) In each instance, the questioning "consumed more time than was necessary to elicit the point the trial court sought to make. By belaboring points of evidence that clearly were adverse to Santana, the trial court took on the role of prosecutor rather than that of an impartial judge. By continuing this adversarial questioning for page after page of reporter's transcript, the trial court created the unmistakable impression it had allied itself with the prosecution in the effort to convict" the defendant. (Ibid.) In contrast to the "egregious" instances of impropriety in Santana (ibid.), here the trial court's questions to defense witnesses were much more limited. The trial court here did not go on questioning witnesses for page after page. Nor did the court belabor points adverse to the defense, or give the impression it was anything less than a neutral arbiter. With the minor exceptions noted above, the court was uniformly polite and temperate to the defense witnesses and counsel.
Nor is this case like Sturm. There, a trial judge committed misconduct by engaging in a pattern of disparaging defense counsel and belittling defense witnesses, conveying the impression that he favored the prosecution. (People v. Sturm, supra, 37 Cal.4th at p. 1238.) Among other things, the court stated that federal grants received by a defense pharmacology expert had " 'contributed to the federal deficit' "; told a defense psychologist that she used too many adjectives and adverbs and embellished her answers, and suggested her testimony was inconsequential; disparaged defense counsel in front of the jury, stating, inter alia, that he was attempting to elicit improper evidence; and interposed its own objections to defense counsel's questions over 30 times. (Id. at pp. 1233-1237, 1239-1241.) While "no one instance" required reversal, the cumulative effect of the court's misconduct did. (Id. at p. 1243.) The complained of instances in the instant matter are far fewer than was the case in Sturm. Further, unlike in Sturm, the trial court did not display hostility toward defense counsel, did not attempt to "poke fun" at the defense theory (id. at p. 1238), did not belittle defense witnesses in the egregious fashion at issue in Sturm, and was evenhanded and impartial in ruling on objections.
In sum, although the court made two offhand remarks that were less than ideal, this is insufficient to establish misconduct. " ' "[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. McWhorter (2009) 47 Cal.4th 318, 373; People v. Snow (2003) 30 Cal.4th 43, 78; People v. Harris, supra, 37 Cal.4th at p. 347.) The court did not usurp the duties of the prosecutor, disparage witnesses, or give the impression it was allied with the prosecution. Golightly was not denied a fair trial.
3. Cumulative error.
Golightly contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. As we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
CROSKEY, Acting P. J.
KITCHING, J.