Opinion
B328328
01-03-2024
THE PEOPLE, Plaintiff and Respondent, v. BRIAN MARROQUIN, Defendant and Appellant.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No.LA096424, Alan Schneider, Judge. Affirmed.
Micah Reyner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
This is an appeal from an order revoking appellant Brian Marroquin's grant of probation. Marroquin contends that remarks made by the trial court before commencement of the revocation hearing revealed the trial court's bias against him and compels reversal of the order revoking probation. We disagree that the trial court's statements indicated a bias against Marroquin and affirm the order revoking his probation.
FACTUAL BACKGROUND
Marroquin entered a plea of no contest to taking a vehicle without the owner's consent in violation of Vehicle Code section 10851, subdivision (a) and was placed on two years' probation.
On June 14, 2022, while still on probation, Marroquin was arraigned on a new criminal charge (the open case) and the trial court summarily revoked his probation.
On December 6, 2022, the trial court was ready to schedule a probation revocation hearing. It explained the probation revocation procedures to Marroquin in this way: "The court indicates that there is a good chance that the probation violation matter will be heard on January 4th, PV hearing, and I will tentatively schedule that on the PV calendar.
"What that means, sir, is that if the People call a witness, and I find by a preponderance of the evidence, not beyond a reasonable doubt but by 51 percent that you violated your probation by failure to obey all laws, I can sentence you up to three years just on your probation matter, and then anything that happens on your open case could be consecutive to that. That's not a very good position for you to be in when you have a probation matter and a prior strike. There's difficulties for you to meet that standard.
"Now, I don't know what the evidence is, but that is something that you might want to consider in terms of trying to resolve your case because as it's charged you are looking at a maximum of six years on the new case, and given your record and your multiple felony convictions and prior strike-I'm not going to say that you will get the maximum, but you might, and that would be at 80 percent, less any credits that they gave you in state prison and then it could be consecutive to the probation violation matter, which would be an additional eight months technically.
"So the maximum that you could get would be six years eight months.
"So just something to think about. "We will bring you back here on 12/15. You will have more time to talk."
On December 15, 2022, the court again addressed Marroquin: "So Mr. Marroquin, you're facing three years on your case that you're on probation for. We will do the probation violation hearing first, and then you will be a sentenced prisoner, and then you don't get any credits. Then you get to do your trial after that. [¶] Do you understand that?" Marroquin said he understood.
At the next hearing on December 20, 2022, defense counsel stated the parties had been discussing settlement. The People had offered 32 months and Marroquin made a counteroffer of 16 months and reinstatement on probation. The court stated it would reject the counteroffer. The revocation hearing was set for January 4, 2023.
The contested revocation hearing commenced on January 4, 2023. Los Angeles Police Department Officer Alexander Martinez testified that he observed Marroquin driving a stolen van very slowly with its lights off on a dark street. Martinez stopped the van and saw multiple tools inside the van. The tools were typically used to steal catalytic converters. After the stop, one Romero Martinez came to a field showup and identified Marroquin as the person who had unsuccessfully attempted to cut off his truck's catalytic converter the night before. Martinez's truck was parked about five minutes from where Marroquin was detained.
The court found Marroquin in violation of his probation for failing to obey all laws. The trial court stated: "[T]here is sufficient evidence of an attempted-attempted-a significant step just beyond a mere preparation stage by driving around in a vehicle in an area where there had been reports of catalytic converters being stolen, with his lights off, with multiple sawzalls, with a jacklifter, not in the trunk not in packages, not in tool bags, but in the actual body of the vehicle for easy access and between the driver, who was your client and another individual.
"So there is attempted petty theft and grand theft.
"You have sufficient evidence of conspiracy to commit the theft, particularly of catalytic converters in that you are traveling around, again, under those same circumstances with two other individuals in a car with the lights off at 11:00 o'clock at night with multiple tools of the trade.
"You also have the attempted, specific attempted of the individual who was seen near, based on the report of the attempted theft of Mr. Romero Martinez who called the police because he saw someone who was attempting to steal his catalytic converter.
"You have the defendant with those tools and while the identification is not 100 percent sure, he says that was the guy but he didn't want to say 100 percent.
"Based upon the preponderance of the evidence standard all three of these crimes are easily made out to the satisfaction of this court, so I do find him in violation of his probation to obey all laws."
The court imposed a prison sentence of three years. Marroquin filed a timely notice of appeal.
DISCUSSION
Marroquin contends that when the court stated, "We will do the probation violation hearing first, and then you will be a sentenced prisoner," the court showed a judicial bias against him because the trial court had prejudged him guilty of the alleged violation before hearing any evidence. A claim of judicial bias must be preserved by an appropriate objection in the trial court. (People v. Seumanu (2015) 61 Cal.4th 1293, 1320; People v. Hines (1997) 15 Cal.4th 997, 1040-1041.) Marroquin did not object to the trial court's remarks and his contention that the trial court harbored bias against him is forfeited. (Seumanu, at p. 1320.)
Marroquin emphasizes that in People v. Sturm (2006) 37 Cal.4th 1218, the California Supreme Court considered the merits of a claim of judicial bias even though appellant did not object to the court's remarks at trial. In Sturm, however, the Court noted that any objection by appellant would have been futile because the trial court's "numerous sua sponte objections and derogatory comments 'would have been futile and counterproductive to his client.'" (Id. at p. 1237.) The Court followed Sturm with People v. Houston (2012) 54 Cal.4th 1186, 1219-1220 [trial court's remarks were not numerous or extensive; judicial bias contention forfeited] and People v. Johnson (2015) 60 Cal.4th 966, 978-979 [judicial bias contention raised for the first time on appeal forfeited].
Here, Marroquin points to one remark in several long colloquies the trial court had with him and his counsel during status conferences to schedule the probation violation hearing. We see no indication that an objection would have been futile or counterproductive. The court's comments were neither numerous, extensive, pervasive nor hostile. People v. Sturm is inapplicable to preserve Marroquin's claim of judicial bias.
Nevertheless, were we to consider his claim on the merits, we would reject it. Due process guarantees the absence of actual bias by the judge. (Williams v. Pennsylvania (2016) 579 U.S. 1, 8.) To establish a violation of due process, there must be a probability of actual bias by the judge and only the most extreme facts justify judicial disqualification based on the due process clause. (People v. Peoples (2016) 62 Cal.4th 718, 787-788.) Rather than exhibit the pervasive rudeness and partiality shown by the trial court in People v. Sturm, the trial court here took pains to explain to Marroquin in several ways his combined sentencing exposure on the probation violation and on the new open case. Indeed, we understand the court's sole challenged remark to be an attempt (albeit in shorthand) to make sure Marroquin also knew how pretrial custody credits would be calculated based on the order in which his probation revocation hearing and trial on the open case occurred. That the court did not add the words "if those hearings did not resolve in your favor" during its advisement on custody credit calculation does not change the context in which the remark was made nor vitiate the plain intent behind it. Further, the court made extensive oral findings after the hearing, which indicate that it listened carefully to the testimony and logically concluded that the facts established a violation of probation. No judicial bias has been shown.
DISPOSITION
The order is affirmed.
We concur: GRIMES, J., VIRAMONTES, J.