Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange CountySuper. Ct. No. 05SF1446, Kelly MacEachern, Judge. Affirmed in part and reversed in part.
Jennifer A. Gambale, 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, Megan J. Beale and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
Antonio Lopez Gutierrez was convicted of misdemeanor assault (Pen. Code,§ 240) and misdemeanor battery (§ 243, subd. (e)(1)). He appeals from a judgment that ordered him placed on informal probation for three years subject to conditions that included a term in local custody. Gutierrez argues he was denied a fair trial because the trial judge was not impartial. He also argues the assault conviction must be reversed because it is a necessary element of battery. We agree only on the second point and so reverse the assault conviction.
All statutory references are to the Penal Code unless otherwise indicated.
* * *
In July 2005, Gutierrez and his wife, Alicia Lopez, decided to separate. Lopez moved out, along with the couple’s two young daughters, and took a job cleaning houses. Gutierrez was employed as a forklift driver on the night shift at a Gateway computer warehouse in Santa Ana.
On December 14, 2005, around 8:30 p.m., Lopez was getting ready to go home after a cleaning job when Gutierrez called on her cell phone. He told her to come meet him at Gateway to pick up some money for the children. Lopez was nearby, so she drove over to Gateway to see Gutierrez when he took his 9:00 p.m. lunch break. She parked about five spaces away from Gutierrez’s car and walked over to him. Gutierrez accused her of seeing another man, grabbed her by the throat, pushed her inside his car, and hit her in the face. Trying to get away, she scratched him on the nose. Gutierrez stopped to answer a call on his cell phone, then laughed, saying it was his girlfriend, and began calling Lopez names. As Lopez got out and started to walk away, Gutierrez kicked her in the back.
Lopez went to work the next day, but she had trouble moving and sat down to cry. Her employer saw that Lopez had a bruised eye and asked what had happened. When Lopez said “[m]y husband hurt me,” the employer told Lopez to go to a hospital. Lopez went to Costal Community Hospital that afternoon with her sister. An emergency room physician examined Lopez. She told him an acquaintance had hit her, and she complained of pain in her face and neck. The physician found evidence of blunt force trauma, with fresh bruises on Lopez’s left cheekbone and hip, and soreness in her neck. He asked a nurse to call the police.
An officer from the Irvine Police Department interviewed Lopez. Speaking through an interpreter, she essentially recited the events of the prior evening as set out above. Subsequently, a Spanish-speaking officer spoke directly with her. Detective Noelle Smiley of the Irvine Police Department investigated the incident.
Detective Smiley arrested Gutierrez on December 21, 2005. After Smiley advised Gutierrez of his Miranda rights, he agreed to talk with her. On the night in question, Gutierrez said he had been sitting in his car around 9:00 when Lopez walked up and knocked on the window. When he got out, she accused him of seeing other women, became belligerent, and hit or pushed him several times, scratching his nose. Gutierrez said he just walked away, went over to his supervisor, and told him what had happened. Gutierrez denied hitting or choking Lopez. In fact, he said he did nothing to her.
On February 7, 2006, the Orange County District Attorney filed an information that charged Gutierrez with domestic battery with corporal injury, a felony. (§ 273.5, subd. (a).) The evidence at trial was as set out above, except that the prosecution also offered evidence of prior acts of domestic violence by Gutierrez against Lopez.
Prior acts of domestic violence are admissible to prove a later charged offense. (Evid. Code, §§ 1101, subd. (a), 1109, subd. (a)(1).)
The first of these had to do with a letter. One morning before work in June 2004, Gutierrez confronted Lopez over a love letter he claimed to have found in her purse. When Lopez denied knowing anything about the letter, Gutierrez hit her and knocked over the kitchen table, forcing Lopez to lock herself in the bathroom. Things calmed down after a bit, and Gutierrez drove Lopez to a job she’d gotten at a factory. A little later, a coworker having coffee with Lopez in the kitchen (Maria Gordian) watched as Gutierrez came in and began calling Lopez names and talking angrily about a letter. Gutierrez hit Lopez, grabbed her by the arm, and began pulling her out of the room. He left only when someone said they were going to call the police.
That afternoon, a factory manager took Lopez to the Pomona Police Department. She recounted the morning’s events to an officer, who photographed her bruised cheek, then drove her home. The officer spoke to Gutierrez, who admitted he had argued with Lopez, and said he went to her workplace because he suspected she was having an affair with someone there. Gutierrez denied hitting Lopez. He was arrested nonetheless.
On June 29, 2005, Gutierrez found a telephone number on a piece of paper in Lopez’s purse. He accused Lopez of infidelity and hit her in the face, giving her a black eye. The next day, Lopez came home from work tired and did not immediately clean up after her pet iguana. Gutierrez became enraged, hitting her in the face, shoulders, stomach, and back, and told her to move out.
The following day, Lopez was packing with the help of her sister. Gutierrez came in while the sister was out for a moment, became angry, and again hit Lopez. At that point, the sister returned and called the police. The responding officer spoke with Lopez and her sister, both of whom recounted the events set out above, and photographed Lopez’s injuries, a black eye and bruised arm. Gutierrez admitted to the officer that he and Lopez had argued but insisted he never hit his wife.
In October 2005, one of Lopez’s housecleaning clients noticed Lopez had a swollen, bruised lip. She asked what happened, and Lopez replied her husband had hit her.
Jeffrey Murray, Gutierrez’s supervisor, testified for the defense. Recalling the incident in the Gateway parking lot, Murray said he had been in his car around 9:00 p.m. on break when Gutierrez ran up, his nose bloodied. Gutierrez said he had a problem and had to go. Lopez, standing behind Gutierrez, was not in any distress, and she did not appear to be injured. Murray did not hear anyone yelling or screaming.
The jury found Gutierrez not guilty of felony battery, but found he was guilty of the lesser included offenses of misdemeanor assault and misdemeanor battery. The trial judge placed Gutierrez on three years’ informal probation on the battery conviction, subject to various terms and conditions, including a 197-day term in local custody. Sentence was stayed on the assault conviction.
I
Gutierrez argues the assault conviction must be reversed because assault is a necessary element of battery. The People concede the point. Gutierrez is right on this one. Where a defendant is convicted of a greater and a lesser included offense, the conviction on the included offense cannot stand. (See, e.g., People v. King (2000) 81 Cal.App.4th 472, 475.) Accordingly, the conviction for misdemeanor assault is reversed.
II
The more important issue is judicial misconduct. Gutierrez argues nine rulings and comments by the trial judge show she failed to remain impartial and instead aligned herself with the prosecution, denying him a fair trial. While some of the comments are ill-advised and disappointing, they were not so prejudicial as to deny Gutierrez a fair trial.
“A trial 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. [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312, 353.) “The role of a reviewing court ‘is not to determine whether the 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.]’ In deciding whether a trial court has manifested bias in the presentation of evidence, we have said that such a violation occurs only where the judge ‘“officiously and unnecessarily usurp[ed] the duties of the prosecutor . . . and in so doing create[d] the impression that he [was] allying himself with the prosecutor . . . .”’ [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 347.)
A
The first four challenged rulings sustained objections to defense counsel’s questions. In two, the trial judge refused to hear counsel on the objection, saying in one instance the matter could be raised later (which was not done). The third occurred when the judge interposed an objection on her own, and the fourth when the judge sustained an objection, then added another ground (“[i]t’s argumentative as well”).
Gutierrez contends these rulings bolstered the prosecution’s case and conveyed the impression that his questions were unimportant. But the point was waived when no objection was made at the time, denying the trial judge the chance to correct any possible impression of bias to that point in the trial. (People v. Sturm (2006) 37 Cal.4th 1218, 1237 [judicial misconduct claims waived by failure to object unless objection and admonition could not cure prejudice already caused].)
More to the point, the rulings were proper. When to hear argument on evidentiary rulings is a matter within the judge’s discretion, and simply postponing it to the end of the day is hardly unreasonable. Nor is there anything wrong with a judge pointing out another ground for sustaining an objection, which may avoid wasted time in trying to reframe a futile question. Likewise, a judge may object to improper questions that an opposing party lets slide by, since “[t]he trial court has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence.” (People v. Sturm, supra, 37 Cal.4th at p. 1237.)
B
The fifth ruling sustained an objection to Gutierrez’s cross-examining Lopez about the letter she had said provoked the June 2004 incident of domestic violence. The trial judge sustained relevancy objections to a series of questions about the letter – who wrote it, who put it in Lopez’s purse, whether it was handwritten or typewritten, and whether Lopez read it. The judge explained “the only relevant evidence is that there was a letter, that it angered the defendant, and that he found it in her purse. Everything else is irrelevant.” When counsel asked to be heard, the judge said the matter could be raised later, and it was taken up at the end of the day. Counsel argued that “[w]hatever [the prosecutor] is going to bring out on direct examination I’m entitled to go into on cross-examination.” The judge replied: “Again, this court has ruled . . . the same ruling stands . . . you did elicit from her that she had not read it. . . . I believe that is sufficient cross-examination, and that any further examination is irrelevant.”
Gutierrez argues the “humiliating . . . scolding” of counsel shows bias toward the prosecution, the ruling was incorrect, and the refusal to allow him to argue the point immediately sent a signal to the jury that his questions were not important. None of the points is accurate.
The judge made a ruling; it was not a scolding. Nor is the scope of cross-examination unlimited – it “does not amount to a license to introduce irrelevant . . . evidence merely because it can be tied to a phrase uttered on direct examination.” (People v. Luparello (1986) 187 Cal.App.3d 410, 426.) The relevancy of the details about the letter was a discretionary call for the trial judge, and we cannot say the ruling was an abuse of that discretion. Nor was it improper to defer argument on the merits of the ruling. Gutierrez was allowed to argue the point and make a record, and we fail to discern any prejudice that flowed from refusing to allow him to do so in the middle of the trial. Trial management is the job of the judge, and there is nothing improper about refusing to interrupt the examination of a witness to allow a party to make a record immediately after a disputed ruling.
C
The sixth challenge is to a ruling made when Gutierrez’s attorney continued cross-examining Lopez after a break. He asked about the location of Murray’s car in the Gateway parking lot. There was a diagram of the parking lot on a board in the courtroom. The following exchange ensued: “[Q] “Can you show us on this diagram where Jeff Murray’s car was? [¶] [A] Parked across from there. [¶] [Q] Could you go up to that diagram? [¶] [A] No, because I’m trembling. I can’t. [¶] . . . [¶] [The court] [Counsel], Ms. Lopez has already had an incident in which she collapsed on the floor. So I’m not going to ask her to stand up and repeat that. All right. She’s going to remain in the seat.”
After the jury was excused at the end of the day, Gutierrez renewed his request. The judge refused in the following words: “[W]hen we took a break, the witness as she was walking out through the audience collapsed, fainted, and then began to have violent retching, that it took us about 15 minutes to get her calmed down sufficiently to allow her to take the stand again. And in deference to the victim – the witness’s physical state and her emotional state the court felt that asking her to stand up again and walk to the podium would create unnecessary risk and delay of this trial. . . . [T]here were at least 15 questions that were asked about where Mr. Murray was . . . and . . . the court felt that the witness had thoroughly explained to the jury . . . where the car was and that an X on the chart would not in any way assist the jury. I . . . did not want to take that risk . . . of her fainting again.”
Gutierrez replied the collapse had taken place outside the presence of the jury, and objected to the judge’s having mentioning the event. The judge replied: “When she said she felt trembling and could not [stand up], you asked her if she was refusing, which created . . . in the jury’s mind that it was a willful refusal and not a physical refusal. . . . I did not want to characterize it as a refusal.”
Gutierrez’s attorney then moved for a mistrial. In particular, she complained about referring to Lopez as a victim, relating her collapse, refusing to allow Lopez to mark the diagram, and the earlier refusal to allow cross-examination about the love letter. In denying the motion, the trial judge said counsel had “insisted [Lopez] either stand up – and then accused her of refusing to stand up. . . . And, therefore, again, if it was error, it was invited error by you . . . .”
Gutierrez argues he was denied a fair trial. He says the reference to Lopez’s collapse showed sympathy for the victim, comments in colloquy showed distain for defense counsel that cannot have escaped the notice of the jury, and a mistrial should have been declared. We disagree.
It is not error to tell the jury a witness fainted during the recess and was not going to be required to stand to draw a diagram. No doubt the situation could have been handled more gracefully – it would have been preferable had the judge spent a minute or so explaining this to the jury, rather than just blurting it out. But since the judge could have provided the information more fully, we see no prejudice in the shorthand version.
As for the comments during the colloquy with counsel, we do not see anything disdainful in the judge’s remarks and certainly nothing that indicates the disagreement over the ruling rose to the level of judicial misconduct before the jury. It is true the judge got her facts mixed up about Lopez refusing to draw a diagram. That took place during a similar line of questioning before the break, not afterward when the judge directed Lopez to remain seated. But the issue at hand is whether telling the jury about Lopez’s illness was prejudicial error. Since counsel had previously accused Lopez of refusing to get up and draw a diagram, and appeared headed there again, the judge acted within her discretion in ruling Lopez could remain seated and telling the jury why. The ruling did not deny Lopez a fair trial, and was not grounds for a mistrial.
Prior to the break, counsel asked Lopez to diagram on the board where she and Gutierrez had parked in the Gateway lot. Lopez said she was trembling and did not get up. Counsel asked “[y]ou can’t diagram where you were parked and where Mr. Gutierrez was parked? When Lopez answered verbally, counsel asked “[a]re you refusing to draw a diagram?” Lopez then got up, went to the board, and drew a diagram as requested.
D
We consider together two comments by the trial judge in overruling defense objections (the seventh and eighth rulings). Gutierrez argues the comments show disdain for the defense and improperly conveyed the judge’s negative personal view of defense counsel to the jury. We sympathize. But while the comments were extraordinarily ill-advised, they did not deprive Gutierrez of a fair trial.
The first comment came during redirect examination of a police officer. On cross-examination, the officer had testified to something exculpatory Gutierrez told her during questioning. It went like this: “[Prosecutor]: He did not tell you that . . . [¶] . . . is that correct? That’s what [Defense Counsel] just testified to, right?” Defense counsel objected that she was not testifying. “[The Court]: However, it does sound like that, so overruled.”
The trial court’s characterization was biased and ill-advised, but we cannot say it prejudiced the case. The judge missed a chance to exercise her authority in favor of even-handedness and fairness by sustaining the objection and setting the record straight. Instead, she reinforced the cheap shot by dignifying it with the imprimatur of the court, a regrettable call, but not a fatal one.
The second comment came during closing argument. The prosecutor, trying to patch up the damage done to Lopez by Gutierrez’s extensive and aggressive cross-examination, said “she was being beaten down by [defense counsel]. And it’s the same type of conduct that Mr. Gutierrez had given her.” Defense counsel objected. The trial judge said “I think it’s a fair characterization. Overruled.”
Gutierrez argues the comment “likened defense counsel to a criminal batterer.” But that goes too far – defense counsel was not accused of criminal conduct. The prosecutor had a legitimate point. It could have been properly made: “My witness did not hold up well, but nobody would have under the aggressive grilling she was subjected to.” Unfortunately, he tried to make it more colorful and went overboard. How far the point can be pushed is a matter of degree, and we don’t think it can be said the argument rises to the level of prosecutorial misconduct.
The trial judge made a mistake in ratifying the overzealous argument. She should have stepped in when the objection was made and straightened things out, explaining that counsel was not – and should not be – suggesting defense counsel did anything unethical or criminal. But while it was a mistake, it was not one that requires reversal. Gutierrez was entitled to a fair trial, not a perfect one. (People v. Harris, supra, 37 Cal.4th at p. 347.) The comment should never have been made, but it did not deny Gutierrez a fair trial.
E
Finally, Gutierrez argues the trial judge improperly shut off a line of cross-examination designed to bring out Lopez’s bias. He offers this as a final example of judicial misconduct amounting to siding with the prosecution and protecting Lopez. We agree Gutierrez should have been allowed to examine Lopez on voir dire to establish a predicate fact, but the broader charge of judicial misconduct is not made out.
The question was whether Lopez had applied for immigration benefits as a victim of domestic violence. The trial judge ruled she would allow the question only if Lopez had applied for benefits before she reported the instant incident. Counsel said she did not know when Lopez had applied. She asked to be allowed to inquire on voir dire, adding that if the court refused “this is going to be appealed.” The judge denied the request for voir dire, saying the probative value was outweighed by the probability of undue prejudice. (Evid. Code, § 352.) Unfortunately, the judge added that if counsel had any confidence, she would not be talking about appeal because she would be anticipating a “not guilty” verdict.
The trial judge refused to take judicial notice of the law in issue, and Gutierrez does not cite it in his brief. The People’s brief asserts that federal immigration law provides that an alien spouse of a citizen, who otherwise would need the joinder of the citizen spouse to apply for permanent resident status, can do so alone if she was the victim of domestic violence. (8 U.S.C. § 1154, subd. (a)(1)(A)(iii)(I), § 1186a, subd. (c)(4)(C).) For purposes of this case, we shall assume for the sake of argument the People’s statement of the immigration law is correct.
We cannot see any reason to have denied voir dire under the circumstances, but neither can we see the larger claim of judicial misconduct. This is one defense counsel invited when she threatened to appeal an adverse ruling. The judge should have ignored this low-level baiting, just as she should have been more adroit and adept in responding to the other objections challenged on this appeal. But, in the end, neither this comment nor the other errors asserted, individually or collectively, denied Gutierrez a fair trial.
Since the assault conviction was for a lesser included offense of battery, it is reversed. None of the other errors alleged denied Gutierrez a fair trial, so in all other aspects the judgment of conviction appealed from is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.