Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. LA052948 Kathryne A. Stoltz, Judge.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Eric Lee Levi appeals from a judgment of conviction entered after a jury found him guilty of second degree robbery (Pen. Code, § 211). The trial court found true the allegations that defendant suffered a prior serious felony conviction (id., §§ 667, subds. (a), (b)-(i), 1170.12) and served a prior prison term (id., § 667.5, subd. (a)(1)). It sentenced defendant to state prison for a term of 16 years.
On appeal defendant contends: (1) He was repeatedly denied access to the jail library, which undercut his ability to represent himself; (2) The prosecutor committed misconduct by failing to disclose evidence and engaging in improper argument; (3) The trial court erroneously prevented him from impeaching a key prosecution witness; and (4) The trial court erroneously prevented him from calling a witness for the defense and permitted a hostile courtroom atmosphere. We affirm.
FACTS
On July 14, 2006 at about 11:30 a.m., Min Kim (Kim), manager of a restaurant on Ventura Boulevard in Sherman Oaks, saw defendant enter the restaurant. Defendant looked around, then left. Kim then noticed that her cell phone, which had been on the hostess desk near the door, was missing. Kim did not see defendant take her cell phone, but when she went outside after him, she saw him put her cell phone in his pocket. Kim confronted him and demanded that he return the cell phone. He denied having her cell phone, pushed her away and ran across the street.
Kim returned to the restaurant and told coworker Austin Rios (Rios) what happened. Kim and Rios went outside and followed defendant. Rios confronted defendant. Defendant put his hands on Rios’ shoulder. When Rios warned defendant not to touch him, defendant ran away. Rios flagged down a passing patrol car and told the Los Angeles Sheriff’s deputies what happened. Defendant was subsequently arrested. He did not have the cell phone in his possession. Kim and Rios called Kim’s cell phone number and found the phone under a nearby stairwell.
DISCUSSION
A. Denial of Access to the Jail Law Library
Defendant was granted pro. per. status on July 28, 2006, prior to his preliminary hearing. On August 14, defendant told the court that he had not been allowed to use the law library, and he had been told he needed a court order to be put in the pro. per. module. The court advised defendant, “I can give you a court order today to be in the pro per module, but the problem is there may be limited room in the pro per module. There may be a waiting period. I don’t think it’s ever been more than a month or so, but sometimes there’s a waiting period of several weeks before they have enough room in the pro per module to transfer you there.”
The following week, on August 21, 2006, defendant filed a motion to dismiss, based in part on the denial of access to the law library. He complained to the court that he still had not been transferred to the pro. per. module or been given access to the law library. The court noted, “I put in an order that you be transferred to the pro per module and you be given access as to the library, but it’s only been one week since I put that order in. So it’s unrealistic to think that they would be able to comply with it. I think if we put [the matter] over for two weeks, that should be sufficient time.” Defendant requested a continuance of only a week. The court said it could not guarantee any transfer and law library access in a week, but it would try. It ordered the clerk to notify the legal unit at the jail that defendant was to be transferred to the pro. per. module and allowed access to the law library.
A week later, on August 28, 2006, defendant told the court he still had not been transferred to the pro. per. module. The court responded that it would put the order in again. It also denied defendant’s motion to dismiss, finding in part that it was unrealistic to expect a transfer to the pro. per. module within two weeks. The court again ordered that defendant be transferred to the pro. per. module and given access to the law library, and it continued the case for another week.
On September 5, 2006, defendant again reported that he had not been transferred to the pro. per. module. The prosecutor suggested that if the pro. per. module was full, someone could just walk defendant over to the law library. Defendant responded, “They will not walk me over, they say it’s too far.” The court said it would call the jail and ask for defendant to be walked over to the law library. Defendant then requested that his trial date be moved up “to the soonest possible date.” The court responded that a trial date had not yet been set. The last day for trial would be October 10, so the court would set a trial date of October 2, day 56 of 60. Defendant asked if it could be set sooner than that, but the court said it could not. After consultation with the prosecutor, the court set October 2 for a trial readiness hearing and October 5 for trial. Additionally, the court told defendant it would call the Sheriff’s Department regarding his access to the law library.
At the next hearing, September 11, 2006, the court noted it had spoken “to the deputies in charge at the twin towers. They explained to me that twin towers does not have a separate pro per module like the men’s central jail does.” Defendant said he had been told the same thing, and the only way he could be placed in the pro. per. module would be to be transferred to the central jail. He added that he had been taken to the law library once, although he asked to go every day. The court indicated that it would “get to the bottom of this problem.”
On September 15, 2006, the court informed defendant that it had contacted the supervising judge regarding defendant’s problems getting library access, “and the supervising judge says he will meet with the county jail and make sure all the pro pers in the twin tower are regularly taken to the library. The court will also issue a new order today.” It ordered that defendant be taken to the law library five days a week, for a minimum of two hours each day.
On September 25, 2006, defendant indicated that he had been transferred to the men’s central jail. The prosecutor suggested that defendant might not want the October 5 trial date “in light of the fact that he just now got access to the pro per module. Defendant responded, “No, that’s fine. October 5th.”
At the October 2, 2006 trial readiness hearing, defendant announced that he was ready to go to trial. With regard to his belated access to the law library, he simply asked if he could orally amend his motion for an Evidence Code section 402 hearing. After the court heard and denied defendant’s motion, it asked if defendant would be ready for trial on October 5. Defendant answered, “I’m ready right now.” The court attempted to clarify, “I’m trying to see if we can start today.” Defendant responded, “Yes.” After further discussion and business, voir dire began that afternoon.
Defendant now contends the repeated denial of access to the jail library undercut his ability to defend himself, violating his constitutional right to self-representation and requiring reversal of his conviction. He adds that he was not required to exchange his right to a speedy trial for the right to library access.
A defendant’s federal and state constitutional rights to self-representation include the right to all reasonably necessary means of presenting a defense. (People v. Blair (2005) 36 Cal.4th 686, 733.) “Thus, ‘a defendant who is representing himself or herself may not be placed in the position of presenting a defense without access to a telephone, law library, runner, investigator, advisory counsel, or any other means of developing a defense.’ [Citation.]” (Ibid.)
The right to any of these means of presenting a defense is not absolute, however. For example, “‘[i]nstitutional and security concerns of pretrial detention facilities may be considered in determining what means will be accorded to the defendant to prepare his or her defense. [Citations.] . . . In the final analysis, the Sixth Amendment requires only that a self-represented defendant’s access to resources necessary to present a defense be reasonable under the circumstances. [Citation.]” (People v. Blair, supra, 36 Cal.4th at p. 733.) The question before us thus is whether defendant had “reasonable access to the ancillary services that were reasonably necessary for his defense.” (Id. at p. 734.)
It is clear that defendant’s access to the law library was delayed for a significant period of time. He was transferred to the pro. per. module at the men’s county jail and given access to the law library one to two weeks before trial. However, on October 2, 2006, at the trial readiness hearing, defendant stated unequivocally that he was ready for trial that day. He did not ask to trail the case until October 5, the date actually scheduled for trial to begin. He did not complain that his ability to prepare for trial had been hampered by the delayed access to the law library. He did not request a continuance or dismissal of the case due to the delayed access.
That defendant knew he could move for dismissal based on the denial of access to the law library is evident from his August 21, 2006 motion to dismiss.
Defendant argues that his “shortcomings as his own attorney throughout the trial are largely attributable to the delayed law library access which violated the trial court’s orders. His unfamiliarity with the law and courtroom procedures were apparent throughout the trial.” Defendant points to nothing in the record, however, which demonstrates that his shortcomings as his own attorney and unfamiliarity with the law and procedure were attributable to anything other than the fact that he is not an attorney. In other words, he points to nothing showing that during the trial he complained that his problems in representing himself were due to his delayed access to the law library.
We conclude that “defendant has forfeited [his claim of error in delayed access to the law library] by failing to raise the matter in the trial court in a timely fashion [after his transfer to the pro. per. module] and by failing to request a remedy in the trial court” (People v. Ringo (2005) 134 Cal.App.4th 870, 876), as well as by his insistence that he was ready to go to trial on October 2. Moreover, while more time in the law library might have assisted defendant in preparing for trial, we conclude that, under the circumstances, defendant had “reasonable access to the ancillary services that were reasonably necessary for his defense.” (People v. Blair, supra, 36 Cal.4th at p. 734.) The court made every effort to get defendant the access he requested, defendant ultimately obtained access to the law library prior to trial, and defendant never complained thereafter about inadequate access.
As to defendant’s claim that he cannot be forced to exchange his right to a speedy trial for his right to law library access, defendant is mistaken. As noted in People v. Frye (1998) 18 Cal.4th 894, there is an “inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel.” (Id. at p. 939.) Under some circumstances, the former may give way to the latter. (See ibid.) “Some rights are mutually exclusive . . ., and hard choices are not unconstitutional.” (Id. at p. 940.)
B. Prosecutorial Misconduct
1. Failure to Disclose Kim’s Misdemeanor Conviction
After jury selection but before trial began, the court discussed with defendant the evidence that he was going to seek to admit. Among the items he mentioned were “the probation reports on the witnesses and their history of criminal history.” He explained that he had information that Kim was on probation “for drugs and alcohol.” The court asked if he had any proof of that. He responded, “Yeah. I didn’t bring it with me is what I’m saying. Is it all right? I have proof of that. Do I have to bring it, because I had to give my information up when all you guys have to do is look on the thing and find out whether she’s on probation herself. [¶] It’s really not my place to do that. I may bring it into evidence. I might not even bring it into evidence.”
The court noted that not all prior convictions are relevant to the issue of credibility and asked if the prosecutor had any information as to whether Kim had any prior convictions that would be admissible on the issue. The prosecutor responded that Kim had a two-year-old D.U.I. conviction, but the prosecutor did not believe it was admissible on the issue of credibility.
After a break, the prosecutor noted that although Kim had a D.U.I. arrest, her conviction was for alcohol-related reckless driving, in violation of Vehicle Code section 23103, and she was placed on summary probation for 36 months. The trial court ruled that her conviction was not one involving moral turpitude; therefore, it was inadmissible for impeachment purposes. The court added that it would reconsider its ruling on admissibility if there was evidence admitted to show that Kim was drunk at the time of the crime, as defendant claimed.
The trial court has broad discretion to admit or exclude evidence of acts of dishonesty or moral turpitude relevant to impeachment under article I, section 28, subdivision (d) of the California Constitution. (People v. Wheeler (1992) 4 Cal.4th 284, 293; People v. Castro (1985) 38 Cal.3d 301, 312-313.) In general, driving under the influence, or reckless driving, with nothing more, does not involve moral turpitude. (See In re Kelley (1990) 52 Cal.3d 487, 494; In re Carr (1988) 46 Cal.3d 1089, 1090-1091; People v. Coad (1986) 181 Cal.App.3d 1094, 1109.) In the absence of evidence of other criminal behavior or facts supporting a finding of moral turpitude, we find no abuse of discretion in the trial court’s ruling that Kim’s misdemeanor conviction of alcohol-related reckless driving was inadmissible for impeachment purposes.
Inasmuch as the conviction was not admissible, we need not address defendant’s claim that the prosecutor had a duty to disclose it to him, and the failure to disclose it constituted misconduct. Defendant was not prejudiced, and reversal is not required. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92; People v. Johnson (2006) 142 Cal.App.4th 776, 782-783.)
2. Late Discovery of Photographs, the Witness List and the Priors Packet
On October 2, 2006 at the trial readiness hearing, defendant sought to exclude evidence of Kim’s cell phone because it remained in her possession and was never identified by the police or the prosecution. The trial court asked the prosecutor if the police ever took a photograph of the cell phone or wrote down its serial number. The prosecutor said they did not, because Kim herself found the phone. The prosecutor had asked Kim to send her a photograph of the phone by October 5, the date trial was scheduled to begin. The trial court requested that she get the photograph as soon as possible and give a copy to defendant.
The discussion then turned to the prior conviction allegations. Defendant moved to strike the priors based on their age and his claim that enhancing his sentence based on the prior convictions would violate the verbal contract he entered into when he pled guilty to those crimes. As to the latter claim, the trial court informed defendant that he would have to prove that at the time he pled guilty, he was promised his convictions would never be used to increase a future sentence; the People only had to prove that he had the convictions. The court asked the prosecutor whether the People had proof of the prior convictions yet. She responded that the priors packet was in her office; she did not know if defendant had been provided with a copy of it yet. The trial court told the prosecutor to provide defendant with a copy after the conclusion of the hearing that morning. That afternoon, she provided defendant with a copy of the packet.
Defendant asked if there was any other evidence that was going to be brought into court. The prosecutor said she had received a phone message from the investigating officer that she had aerial photographs taken of the area around the restaurant. The prosecutor had not seen them yet. As soon as she received them, she would provide copies to defendant.
Defendant later noted that he had not received a witness list. The prosecutor offered to read the names of all her witnesses, but the trial court told her to save that for the following day. It wanted to get the jurors into the courtroom and get started with voir dire.
The following day, defendant moved to exclude the photograph of the cell phone and the aerial photographs due to untimeliness. The prosecutor responded that the cell phone was mentioned in the police report, so defendant was aware of its existence. Additionally, defendant’s investigator could have taken photographs of the area. Therefore, there was no late discovery. The prosecutor added that the photographs covered the same area as a diagram would, and the area was mentioned in the police report. The trial court denied defendant’s motion.
Assuming arguendo that the prosecutor was under a duty to provide the foregoing items to defendant and that she failed to do so in a timely manner, defendant fails to demonstrate how he was prejudiced thereby, i.e., that the result of the trial would have been different had the items been provided to him in a timely manner. Absent such prejudice, reversal is not required. (See People v. Johnson, supra, 142 Cal.App.4th at pp. 782-783.)
3. Improper Vouching
During argument, the prosecutor stated that Rios “was very credible and forthright in his demeanor. I think he was very honest.” The trial court interjected, “You can’t say ‘I think.’ You can say, the evidence showed.” The prosecutor apologized and continued, “The evidence showed that he was very honest as he was testifying on the stand, and it’s apparent that he wasn’t trying to hide anything. He had no motivation to lie or even be here telling a story other than what happened and what he observed that day.”
The “prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.” (People v. Frye, supra, 18 Cal.4th at p. 971.) The prosecutor may, however, assure the jury of a witness’s honesty “based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief.’” (Ibid.)
In determining whether a prosecutor’s statements constitute misconduct, we “must view the statements in the context of the argument as a whole. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) We must “‘examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief’” of which the defendant complains. (People v. Ayala (2000) 24 Cal.4th 243, 288.) In doing so, we do not infer lightly that the jury gave the prosecutor’s remarks the most damaging interpretation possible. (People v. Frye, supra, 18 Cal.4th at p. 970.)
The trial court correctly told the prosecutor she could not argue that she thought Rios was honest, and the prosecutor then properly rephrased her argument to assure the jury of Rios’s honesty based on inferences drawn from the record. In light of the immediate correction of the problem, it is not reasonably probable the jury would have understood the prosecutor to be arguing that she believed Rios was honest based on evidence outside the record. Accordingly, there was no prejudicial misconduct. (People v. Ayala, supra, 24 Cal.4th at p. 288; People v. Dennis, supra, 17 Cal.4th at p. 522.)
4. Misstating the Evidence
The prosecutor argued that “there was physical contact between” defendant and Kim, and “[t]he force used caused her to fall.” After the prosecutor concluded her argument, the trial court discussed with defendant what he could and could not say in his argument. Defendant brought up the prosecutor’s statement that Kim fell. The trial court did not recall her saying that but told defendant, “I will remind the jury that they’re instructed to rely on the evidence as they heard it and as they remember it.” Defendant responded, “That’s fine.” The trial court subsequently instructed the jury pursuant to CALCRIM No. 222 that in deciding what the facts of the case were, the jury “must use only the evidence that was presented in this courtroom. . . . [¶] Nothing the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.”
It is misconduct for the prosecutor to argue matters not admitted as evidence. (People v. Benson (1990) 52 Cal.3d 754, 794-795.) The prosecutor did not argue matters not admitted as evidence, however. Kim testified that defendant pushed her, she started to fall backwards, then she regained her balance and ran back to the restaurant. At worst, she misstated the evidence. The trial court obviated any harm this may have caused by instructing the jury that the attorneys’ statements were not evidence and it should decide the facts based on the evidence presented in the courtroom. We presume the jury followed this instruction (People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331), and there was no prejudicial misconduct (People v. Ayala, supra, 24 Cal.4th at p. 288; People v. Dennis, supra, 17 Cal.4th at p. 522).
5. Exploiting Defendant’s Pro. Per. Status
Defendant argues that the prosecutor went to great lengths to exploit his pro. per. status, citing the claimed instances of misconduct. We see no evidence of a concerted effort by the prosecutor to exploit defendant’s pro. per. status, much less prejudicial misconduct. Defendant has demonstrated no grounds for reversal. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 92.)
In light of this conclusion, we need not address the People’s assertion that the claims of prosecutorial misconduct are waived by defendant’s failure to raise them below. (People v. Stansbury (1993) 4 Cal.4th 1017, 1056.)
C. Limiting Cross-examination and Permitting a Hostile Courtroom Atmosphere
Defendant contends that throughout the trial, the court prevented him from presenting favorable evidence, unfairly limited cross-examination and permitted a hostile environment, depriving him of his right to a fair trial.
1. Limited Examination of Kim
Defendant first claims that the trial court prevented him from calling Kim as a defense witness, violating his right to present a defense. Kim testified for the prosecution, and defendant had the opportunity to cross-examine her. She was excused but placed on call, meaning she could leave court but she was not to leave town and she was to make sure the prosecutor knew how to get in touch with her.
The following day, while waiting for the People’s final witness, the trial court asked defendant if he had made a decision as to whether he was going to testify or call any witnesses on his behalf. Defendant said he would like to bring Kim back, as well as some of the officers who testified. The court asked whether he had them under subpoena. The prosecutor interjected that it was her understanding that none of these people were under subpoena by the defense. The court told defendant that they were going to finish the People’s case within an hour, so if he had any witnesses under subpoena, he needed to have them in court. Defendant said he did not know he needed to subpoena the witnesses and asked the court what to do. The court responded, “I don’t give you advice, Mr. Levi. That’s one of the difficulties of being pro per.”
The trial court asked the prosecutor to have Kim come back to court that afternoon. The prosecutor requested an offer of proof. The court agreed that if defendant had an appropriate offer of proof, Kim could be ordered to come in the following morning.
After the conclusion of the People’s case, the trial court asked defendant for his offer of proof, explaining that it wanted defendant to “tell me in advance what questions you want to ask her, because I’m not going to make her come back here and answer questions again if you’re going to ask her a whole series of questions that the court will sustain an objection to.” Defendant responded, “There was one question that she hadn’t—that she does not know me and she has no knowledge of me. That’s one, yes, I was going to ask her.” He also wanted to impeach her with a statement he thought he heard her make to the prosecutor about calling the police. Additionally, regarding impeachment, “there’s other questions that bring into my mind that she had other motives other than her cell phone. [¶] One she’s a manager of a store. . . .”
The trial court interrupted, “Well, at this point in time, I’m requiring you to tell me exactly what it is you want to ask her, because I’m not going to bring her back again just to ask her questions that you could have asked her before or . . . for which the court will sustain objections.” Defendant responded, “I would like to ask her about . . . what she thought was some dope. She thought I had dope, and I didn’t have dope.” He also wanted to ask her “just a few other questions, you know, concerning those type of motives, you know, where she would—why she would not have what’s common sense that they have. I mean, she didn’t call the police ever, you know what I’m saying. . . . She’s trying to, you know, be real cool, not say nothing. The police go there. She’s already lost half her job now, you know what I mean?”
The court observed that Kim did not testify that she lost half her job but rather that she was working part time now. It indicated that it was going to take a recess to have the court reporter check her notes to see Kim’s testimony as to whether or not she called the police. The court would then make its decision as to whether or not defendant could recall Kim.
After the reporter reviewed her notes, the trial court told defendant that Kim “didn’t say she called the police. She said she spoke to the police on the phone.” As to the other things defendant mentioned, “[s]ome of them are things [Kim] already was asked previously in her testimony, and I believe they’re all things that could easily have been asked before, and I don’t think this is the type of situation that is contemplated for recalling a witness. [¶] So, at this point in time, I think it would constitute harassment. I’m not going to require her to come back in.”
A defendant’s constitutional right to confront witnesses against him includes the right to examine witnesses on questions of bias and credibility. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1385-1386.) Nonetheless, the trial court “retains broad discretion over the conduct of the trial.” (Id. at p. 1385.) It may impose reasonable limits on defendant’s examination of prosecution witnesses “‘based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ [Citations.]” (Id. at pp. 1385-1386.) The trial court’s limitation of a defendant’s examination of defense witnesses “does not implicate or infringe a defendant’s federal constitutional right to confront the witnesses against him, unless the prohibited cross-examination might reasonably have produced a significantly different impression of the witness’s credibility. [Citations.]” (Id. at p. 1386.)
Defendant had the opportunity to cross-examine Kim during the prosecution’s case in chief in order to expose any bias or to impeach her credibility. For the most part, the issues he sought to address by calling Kim as a witness were not new and could have been explored more thoroughly on cross-examination. For example, Kim had testified on direct examination that she did not know defendant and had never seen him before the incident. She testified about talking to the police after the incident, and defendant cross-examined her as to why she did not call the police herself. Defendant himself elicited testimony from Kim on cross-examination that she was working at the restaurant part time, but he did not question her about it any further. In other words, defendant was given his opportunity to confront the witness against him.
Defendant claims that if he had been able to recall Kim, “he could have highlighted her responses which were unreasonable, and he could have elicited inconsistencies.” He cites no authority for the proposition that he was entitled to examine a witness to “highlight” previously-given responses to questioning, as opposed to highlighting her unreasonable responses in his argument. (See In re Ryan N., supra, 92 Cal.App.4th at p. 1385 [trial court can prevent repetitive questioning].) Additionally, he had the opportunity to “elicit inconsistencies” during cross-examination.
The trial court had the right to preclude defendant’s proposed examination of Kim as to why she was now working part time on the ground it was time-consuming and marginally relevant. (In re Ryan N., supra, 92 Cal.App.4th at p. 1385.) Even now, defendant can only speculate that “[i]f the restaurant was displeased with Kim’s work, it may have lead [sic] to impeachment evidence suggesting she was a troubled employee whose statements could not be taken at face value.”
Defendant has failed to demonstrate that, had he been allowed to recall Kim, it “might reasonably have produced a significantly different impression of the witness’s credibility.” (In re Ryan N., supra, 92 Cal.App.4th at p. 1386.) Accordingly, we find no violation of his right of confrontation.
Defendant also claims that, “[a]t the prosecutor’s urging, the trial court precluded [defendant] from asking Kim if she had ever seen [defendant] before.” In fact, defendant sought to ask Kim about whether she was sitting directly behind him in the courtroom on October 5. The prosecutor objected on the ground of relevance, and the trial court sustained the objection. The trial court’s ruling was correct; whether Kim was sitting behind defendant in the courtroom on October 5 had no “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
2. Hostile Courtroom Atmosphere
On the afternoon of October 2, 2006, before the prospective jurors were brought into the courtroom, the following colloquy took place:
“The defendant: What do I do with the—with the—you know, if—if I’m sitting and talking to, and police are laughing, what—can I object to that? Is that objectionable?
“The court: I told them not to do that.
“The defendant[]: Is that—do I—can I object to that?
“The court: Mr. Levi, I’m not here to give you advice. Remember, I told you that before.
“The defendant: Oh, that’s right.
“The court: If they’re acting inappropriately, I will definitely tell them that.
“The defendant: They can still do it, though.
“The court: I told them not to do it, and they don’t do it anymore. Obviously, I’m not going to permit any spectators, when the jury is here, laughing or making faces. If I see it or hear it, I will put a stop to it. And I did put a stop to it. That happened outside the presence [of the] jury. They’re not here right now.
“The defendant: It doesn’t make any sense if the jurors are here or not. I can object, if I can, if I think it’s wrong, right? . . .”
It is clear that at some point, police officers in the courtroom were laughing. Defendant found that objectionable, and rightly so. (Cf. People v. Williams (2006) 40 Cal.4th 287, 322-323; People v. Hill (1998) 17 Cal.4th 800, 834.) The trial court indicated that it put a stop to their actions, and defendant points to nothing in the record to show that the officers’ behavior continued once the jury was called in and the trial began. Accordingly, defendant has failed to show that the “brief episode of inappropriate conduct . . . irreparably damage[d] defendant’s chance of receiving a fair trial.” (Williams, supra, at p. 323.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J. ROTHSCHILD, J.