Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Robert E. Law and Helios (Joe) Hernandez, Judges. Affirmed., Super.Ct.No. RIF141914
Retired judge of the San Bernardino Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Richard Schwartzberg, 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, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Ignacio Marin Gomez confronted his wife, D.C., when she got home from work late, accusing her of seeing another man. Afraid that defendant might become violent, D. left her home with her two children and went to a motel. The next morning, she returned to retrieve her belongings from the house, believing that defendant was not at home. When she arrived home, she discovered that defendant had ransacked their master bedroom, breaking mirrors and cutting up her clothes. Defendant returned home while D. was packing and questioned her as to her whereabouts the night before. He became enraged and told her that she would have to be punished for leaving and disobeying him. He hit her across the back with an extension cord. He then told her that he was going to punish her by impregnating her. He forced her to perform oral copulation on him, put his fingers in her vagina, and forced her to engage in sexual intercourse.
Defendant was convicted of corporal injury to a spouse, rape of a spouse, rape by a foreign object, oral copulation by use of force, and making terrorist threats.
Defendant makes one claim on appeal: the trial court deprived him of his right to a fair trial guaranteed by the due process clauses of the federal and state Constitutions when it required him to seek a motion for mistrial in front of the jury, and then compounded the error by deprecating counsel in front of the jury. We find that the trial court did not commit reversible trial error and affirm the judgment in its entirety.
I
PROCEDURAL BACKGROUND
Defendant was found guilty by a jury of corporal injury to a spouse (Pen. Code, § 273.5), rape of a spouse through the use of force or fear (§ 262, subd. (a)(1)), rape by a foreign object (§ 289, subd. (a)(1)), oral copulation by use of force (§ 288a, subd. (c)(2)), and making terrorist threats (§ 422). The trial court sentenced defendant to state prison for the upper term of eight years for the rape, plus an additional one-year term for corporal injury to a spouse, plus eight months for the terrorist threat conviction. The remaining sentences were ordered to run concurrent to the imposed sentence. Defendant received a total sentence in state prison of nine years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury deadlocked on a charge of assault with a deadly weapon (§ 245, subd. (a)) that was based on the same conduct as the corporal injury to a spouse charge, and it was dismissed in the interest of justice.
II
FACTUAL BACKGROUND
On February 15, 2008, 27-year-old D.C. lived in Moreno Valley with defendant, her husband of eight years, and their two children. D.’s sister, Margarita, and Margarita’s children also lived in the home.
On that day, D. arrived home from work around 7:00 p.m. Defendant questioned her about what he perceived as her late arrival home from work. He accused her of seeing someone else. Margarita, who was leaving for an overnight trip with her children, asked D. to come with her. D. refused.
D. played with her children in the front yard. Defendant asked D. to come back inside the home, but she refused. Defendant became angry, and D. was afraid to be home alone with him. Defendant had previously (in 2002 or 2003) hit her with his fist and had been convicted of domestic violence. Defendant continued to question her as to why she came home late. He went back inside the house to the use the restroom, and D. quickly took her children to a neighbor’s house. D. told her neighbor that she had been in an argument with defendant and that she wanted to get away from him. D. and her children spent the night in a motel in order to let defendant calm down.
The following morning, on February 16, 2008, D. returned to her home with the children when she was assured by Margarita that defendant was not at home. She intended to pack some of their belongings and leave again. When she arrived at the home, she found her bedroom in shambles. Mirrors had been broken, her clothing was cut up, and her makeup had been thrown around the room.
As she was trying to clean up the mess and pack her belongings, defendant arrived home. He told the children to go watch a movie. He then questioned D. about where she had been the night before and continued to accuse her of infidelity. He locked the front door and told D. she would be punished for disobeying him the night before.
Defendant got an extension cord because he wanted to use something that would “really hurt” D.; his fists would not hurt her enough. He ignored D.’s pleas not to hurt her; he forced her to face the front door and hold the doorknob. He then struck her across the back with the extension cord. She fell to the ground in pain.
D. lay on the ground crying and begging defendant to stop. Defendant helped D. get up and lie on the couch. He told her he did not want to hit her but that she had provoked him. Defendant promised he would not hit her again with the extension cord but that her punishment was not over; they were just taking a break.
Defendant then told D. he loved her and asked for her forgiveness. He tried to kiss her, but she refused at first, still crying from the pain in her back. D. eventualy forgave him and kissed him back. Defendant and D. then went into a downstairs bedroom. At trial, D. testified she had consensual sex with defendant. She consensually orally copulated him, and then they had sexual intercourse. She did not recall that defendant penetrated her vagina with his fingers.
After having sex with defendant, she went back upstairs to feed her children. She then went to the master bedroom, locked the door, and started crying when she again saw the devastation in the room. D. sat in her closet crying while her son fell asleep in the closet. Margarita called D., and D. told her that defendant had hit her. Margarita tried to convince D. to call the police, but she refused. Nonetheless, the police arrived about 10 minutes later because Margarita asked a friend to call them.
D. never told Margarita that defendant had raped her; D. told her that defendant hit her with a wire.
Riverside County Sheriff’s Deputy Eliah Hutchins responded to a report of domestic violence at the home. When D. answered the door, she was shaking, crying, and hysterical. The master bedroom had been destroyed. Defendant was found in a locked bedroom.
D. underwent a voluntary forensic examination that same day. She told the nurse who conducted the examination that defendant had hit her on the back with an extension cord to punish her. She also told the nurse that defendant took her into a bedroom and performed oral sex on her and three or four times forced his fingers into her vagina. When D. refused to perform oral sex on defendant, he punched her in the stomach and placed his penis in her mouth. Defendant then had sexual intercourse with D., which she tried to resist. He told her he was punishing her by impregnating her.
At trial, D. could not recall why she had consented to the examination.
The examination revealed a red mark on her back, two marks on her neck, abrasions to the bottom of the vaginal opening, and redness in D.’s mouth. The nurse surmised these injuries were consistent with what D. had described. The findings could not conclusively establish whether the sexual intercourse was consensual or nonconsensual.
D. maintained at trial that the sexual acts with defendant were consensual. The jury was then played taped interviews between D. and police immediately following the incident. D. told police defendant had kicked her, dragged her into the living room, threatened to kill her if he saw her with another man, threatened to burn the house down, punched her in the stomach, pulled her hair, bit her, and told her that he was going to punish her by getting her pregnant. D. insisted that these things did not happen.
D. also told police that she did not want to have sex with defendant and that defendant had forced his fingers into her vagina. She claimed at trial that she had lied to the police because she was angry and wanted to hurt defendant.
III
DENIAL OF FAIR TRIAL
Defendant contends his right to a fair trial guaranteed by the state and federal Constitutions was abridged by the trial court refusing to allow a sidebar to discuss defendant’s objection to questioning by the People and requiring him to seek a mistrial in front of the jury. He additionally claims the trial court committed misconduct.
A. Additional Factual Background
D. clearly had recanted her earlier statements to police at trial. She testified on direct examination that in May 2008 she had spoken with a defense investigator and decided to “come clean” about the allegations. The People then elicited testimony from D. that starting in February 2008 she and her children had visited defendant in jail. D. indicated she would on occasion drop off one of her children at Margarita’s house and then go to the jail. The People also asked D. whether she had talked to defendant on the telephone at the jail since the incident. D. admitted she had spoken with him over the telephone. Defendant asked for a sidebar conference.
The trial court responded, “Do you have an objection?” The following exchange then occurred:
“[Defense counsel]: Well, I’m thinking there’s some discovery I don’t have for the last two questions regarding Margarita, and phone calls.
“[Prosecutor]: The phone calls—well, I’ll approach.
“[Trial court]: I don’t want to talk to you guys. Do you have an objection? State the objection, and then if I have to rule—if you don’t have something and they have something, you’re entitled to it.
“[Defense counsel]: Okay. I object under Brady that there’s been conversations with Margarita with an investigator that I do not have based upon the statements made by [the prosecutor] on questioning, as well as jail phone calls I have not been provided, so I object and ask for a mistrial.
Presumably, defendant was citing to Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady), which requires the People to turn over any evidence material to a defendant’s guilt or innocence.
“[Prosecutor]: And, your Honor, I have—the only thing I’m basing it on is defense counsel’s provided statement to me that she has talked with him and visited him at the jail.
“[Trial court]: Objection is overruled.
“[Defense counsel]: I object for the record that I had to do this in front of the jury.
“[Trial court]: Don’t care. Brady motion is denied. You knew where he got it. That’s your problem.” There was no further objection or discussion.
B. Analysis
1. Refusal to grant request for sidebar conference and
mistrial request in front of jury
Defendant first claims that the trial court erred by refusing to conduct a sidebar conference to discuss potential inadmissible evidence and by forcing him to make a motion for mistrial in front of the jury.
“There is, of course, no right to approach the bench to argue points of law. [Citation.]” (People v. Fudge (1994) 7 Cal.4th 1075, 1108.) The decision to conduct a sidebar conference comes under the broad discretion of the trial courts to control the proceedings before them “‘to ensure the efficacious administration of justice.’ [Citations.]” (People v. Gonzalez (2006) 38 Cal.4th 932, 951; People v. Ward (2009) 173 Cal.App.4th 1518, 1528.)
The trial court did not abuse its discretion by refusing to conduct a sidebar conference. Initially, defendant asked for a sidebar conference without first making an objection. It was reasonable for the trial court to require defendant to make an objection on the record. Defendant then claimed there was a Brady violation, surmising he had not received evidence prior to trial. The People quickly stated it did not intend to introduce any evidence and that its information came from documents received from defendant.
It appears that defendant’s objection and request for sidebar were made prematurely. Certainly, had the People sought to introduce some type of evidence not received by defendant during discovery, an objection would have been appropriate, and even a sidebar conference may have been necessary. But here, the People had not sought to introduce any evidence and were merely questioning D. The trial court could certainly conclude there was no merit to defendant’s objection and no need to discuss a violation of discovery rules when the People had not sought to admit any such offending evidence.
Defendant argues the objection was proper because “anyone hearing the questions [by the People] would draw a reasonable inference that the People possessed recordings of [defendant] and D.’s discussions,” and trial counsel knew he did not have any reports of telephone calls. This is wanton speculation. The People stated they had no such reports and that the information had come from defendant. Defendant’s objection was clearly premature.
Defendant also claims he was “forc[ed]” to make a motion for mistrial before the jury. Defendant made a mistrial motion on his own accord in front of the jury. He had made a timely objection and could have waited until the end of the day or recess to bring a motion for mistrial outside the presence of the jury. In fact, defendant never brought up the issue again. He was not forced to argue his mistrial motion (which clearly had no merit based on the People’s statement) in front of the jury.
Moreover, there was no admission of prejudicial information in the trial. The jury was informed that defendant was concerned that the People had failed to turn over information prior to trial. This could only put the People in a bad light, as the reasonable inference was that it had failed to give defendant the documents it was required to give to defendant. Defendant merely speculates that “the court... convey[ed] to jurors that counsel was either ill-prepared and/or feared that there was otherwise highly damaging evidence, even if the People ultimately offered nothing.” This is not a reasonable inference from the statements made at trial.
Defendant cites to several cases in his brief wherein a sidebar conference was deemed necessary by the reviewing courts because the prosecutor was aware that a witness would assert his or her right not to testify. Such cases are clearly not applicable here.
Finally, even if we were to conclude that prejudicial information came before the jury and that defendant’s right to a fair trial was violated by having to request a mistrial in front of the jury, and apply the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], as argued by defendant, we would not reverse the judgment.
Even if the jury were to “infer” that the People possessed information that defendant had somehow convinced D. to change her story, such evidence would have been contradicted at trial. On cross-examination, D. stated that although she had visited defendant at the jail, at no time had he made threats to her or told her to change her story. D. repeatedly stated that she lied to the police because she was angry at defendant. Moreover, the taped interviews with police were certainly the most damaging evidence against defendant as they were made immediately following the incident. Additionally, she told the forensic examiner the same story she had earlier told the police. The fact that D. changed her story at the time of trial was clearly before the jury and whether or not defendant may have talked her into changing her story certainly was not prejudicial.
Defendant’s statement in his brief that “[s]adly ‘make up sex’ is not unheard of after a fight, even one involving force” (which appears to approve of the use of force here) is inappropriate and adds nothing to the issues in this case.
The jury had before it evidence that on the day of the incident D. told police and a nurse that defendant had committed the charged acts against her will. Further, the master bedroom had been destroyed, showing that defendant was upset, and she had to admit that he hit her with the extension cord. The jury could reasonably conclude that the sexual acts were not consensual regardless of the reason that D. recanted at trial. There was no prejudice occasioned by the trial court’s refusal to conduct a sidebar conference.
Although defendant has set out his arguments together, we believe they are more appropriately addressed separately.
Defendant contends the trial court committed misconduct by disparaging his trial counsel in front of the jury. Defendant relies upon the trial court’s statement, “Don’t care. Brady motion is denied. You knew where he got it. That’s your problem.”
Initially, defendant waived his judicial misconduct claim because he did not object on that ground at trial. After the trial court made the above statement, defendant made no objection.
“As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds 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 (2006) 37 Cal.4th 1218, 1237; People v. Boyette (2002) 29 Cal.4th 381, 458-459.)
Here, defendant made absolutely no objection to the comments made by the trial court. We do not believe the statements were so offensive that an objection would have been futile or that an admonition would not have cured any potential prejudice. Defendant’s failure to object waives the issue on appeal. However, since the People do not contend defendant waived the issue, and because we conclude the trial court’s comments did not deprive defendant of his right to a fair trial, we will address the issue.
“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.]” (People v. Snow (2003) 30 Cal.4th 43, 78.) The reviewing court’s “‘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.]” (Ibid.; see also People v. Gutierrez (2009) 45 Cal.4th 789, 823.)
Although we agree with the People that it would have been better if the comments were “left unsaid,” we cannot conclude that it deprived defendant of a fair trial.
Initially, the jury was instructed by the trial court pursuant to Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3550: “It’s not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.” We presume the jury followed the trial court’s instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)
Additionally, this was a brief comment made in a trial that involved few objections by the parties and relatively little involvement by the trial court. This was not a continuing pattern that suggested the trial court was aligned with the People in the instant case. (People v. Snow, supra, 30 Cal.4th at p. 78.) Defendant was entitled to a fair trial, not a perfect one. (People v. Hill (1998) 17 Cal.4th 800, 844.) The trial court’s brief comment did not result in the denial of a fair trial.
IV
DISPOSITION
We affirm the judgment in its entirety.
We concur: McKINSTER Acting P.J., KING J.