Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. Hugh M. Flanagan, Judge. Super. Ct. No. MF47428
Scott D. Peebles, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted Gregory Benton Myers of attempting to dissuade a witness by force or fear. (Pen. Code, § 136.1, subd. (c)(1).) The trial court suspended imposition of sentence, placed Myers on three years’ probation and ordered him to serve nine months in jail with credit for time served. On appeal, Myers contends: (1) the trial court’s restriction on cross-examination and refusal to allow him to recall certain prosecution witnesses in his case-in-chief deprived him of his rights to due process and to confront and call witnesses; (2) the trial court committed misconduct by making improper comments regarding the defense’s presentation of evidence as well as the evidence itself in violation of his due process rights; and (3) the cumulative effect of these errors deprived him of a fair trial. We affirm.
FACTS
Lucille Mejia had known Myers for about 30 years and was familiar with his voice. At about 3:00 a.m. on November 7, 2007, Mejia answered a telephone call. The voice on the other end said, “Bad deeds do not go unpunished.� Mejia, who knew the caller was Myers, hung up. About 10 minutes later, Mejia received another telephone call. The caller asked if “this was Lucille Mejia.� Mejia, who recognized the voice, responded, “Yes, it is. Yes, this is Lucille Mejia.� Mejia did not remember if she hung up or if the caller asked her if she knew who he was. About 3:30 a.m. she received a third telephone call. The caller, who Mejia recognized as Myers, asked her if she “was crazy yet� and said he was going to drive her crazy until she killed herself. Mejia hung up.
Mejia received a fourth telephone call close to 4:00 a.m. The caller asked if she was crazy or ready to kill herself. Mejia responded, “No, Greg, you’re not going to drive me crazy, and no, I’m not going to kill myself.� The caller said “something to the effect that he was going to take matters into his own hands[,]� which Mejia interpreted as meaning he was going to kill her. The caller also said that either way, she wasn’t going to make it to court. Mejia testified she had provided statements to the police or defense investigator implicating Myers in possible criminal activity and he was aware she intended to testify as a witness. Mejia believed Myers’s statement that she would not make it to court related to the criminal case.
After the fourth call, Mejia locked the number out on her telephone as the phone company had instructed her to prevent incoming calls. The repeated calls made her feel afraid and threatened. Mejia had reported to the police previous calls from Myers that “were along exactly the same line� as the recent calls. According to Mejia, Myers said in the earlier telephone calls that he was going to kill her and they had verbal confrontations in the past. Mejia knew Myers to be a violent man from “[i]nformation that’s been shared.� Although she had never seen Myers act violently, they had “shared words before where we were pretty close to it[,]� once over the telephone and once face-to-face, and when they argued, she feared for her safety.
At about 5:30 or 6:00 a.m. on November 7, Mejia used the “star 69� feature on her telephone to call back the number Myers had called her from to make sure she had it “locked.� Someone other than Myers answered the phone. She then called the police at 5:58 a.m. Mejia waited to call the police because she “had been instructed by the police department that phone calls such as these were not a high priority,� and her mother was ill, so she did not want to leave her home, and she wanted to wait until daylight to call. Mejia knew the police would not respond right away because of her reports of the prior phone calls. Mejia made a statement to police regarding the telephone calls.
Mejia testified at the preliminary hearing that she also called the number back “as a courtesy.� When asked on cross-examination at trial what she meant by that, Mejia explained she should never have used that word, that the reason she called back the number was to make sure it was locked, and she used the word “courtesy� because she was wanted to get out of the hearing room, as she was panicked and fearful.
On November 7, Myers was living with John Bain and Bain’s children. Bain did not make any phone calls during the early morning hours that day. At about 5:30 a.m., Bain answered the telephone. Bain described the conversation as follows: “I answered the phone, and it was a woman on the phone and she was screaming and yelling at me. And she said something about I star 69 this number, and I said, what are you talking about? [¶] And she called me basically an SOB. And she says, I’m going to get you for this. And I said what are you talking about? I don’t even know who you are. Who are you? And she said -- I says I’m sleeping with my children right now. I’m in bed. And then she kind of stopped yelling. And I responded and I says, who are you and she told me her name. [¶] And then, I know it now, but I remember Mejia. And I said -- I thought for a second and, you know, I says, where do I know you from? And then I asked, do you know Greg Myers? And she said, yes. I know Greg Myers, yes. And then she said I’m going to call the police. I said, well, why don’t you let me -- I’ll talk to him.� Bain never called Mejia’s residence and “didn’t even know of her.�
At about 8:30 a.m., Merced Police Officer Jason Hart went to Mejia’s house. Mejia told him about the four threatening calls from Myers and that she feared Myers was going to kill her. Mejia told Hart she was a witness in a case, which he confirmed with the district attorney, who advised Hart that Mejia had implicated Myers as a suspect in a murder trial and they definitely knew each other. Mejia also told Hart she immediately recognized Myers’s voice after his first statement to her. Mejia did not mention making other complaints to the Merced Police Department. Mejia told Hart she had dialed “star 69� to tell Myers not to call her anymore and when Bain answered the phone, she asked him who had been calling her. Hart had Mejia dial “star 69� and hand him the telephone. Bain answered the call. Hart asked Bain if he knew Myers; Bain responded that Myers lived with him.
Hart and another officer went to Bain’s address. Bain answered the front door, invited the officers in and showed them to Myers’s bedroom. Hart knocked on the bedroom door and Myers answered it. Myers agreed to come into the living room with Hart. When there, Hart asked Myers if he knew Lucille Mejia. Myers responded no, he had never heard of anyone by that name. Hart told Myers he knew from speaking with the district attorney that Myers knew who Mejia was and they had been in contact. Hart asked Myers if he had called Mejia that morning; Myers stated he was drunk the night before and couldn’t remember if he called “Lucille.� During their conversation, Myers continually raised his voice and made fists; he appeared agitated. At the time, Hart believed Myers could be violent or dangerous, so Hart arrested him.
After taking Myers into custody, Hart read Myers his Miranda rights. At first, Myers told Hart he did not have anything to say. Eventually, Myers asked Hart if Mejia had taped the conversation he had with her. Hart told Myers he wasn’t going to get into the evidence against him. Myers responded that he didn’t know why everyone put so much credence into what Mejia said. Hart asked Myers to tell him about Mejia. Myers again said he did not know her. When Hart asked Myers why he called Mejia “a lying bitch� if he did not know who she was, Myers responded that “she is.� When Hart asked Myers why he called Mejia, he responded that he was drunk. Myers refused to answer any more questions. He never admitted to Hart that he made any phone calls to Mejia or threatening statements to her. After his arrest, Myers was cooperative.
Miranda v. Arizona (1966) 384 U.S. 436.
Defense
Myers testified he had known Mejia, who was his mother’s friend, since he was seven. Myers explained he had testified for the defense as a subpoenaed witness in the recent Bobby Thompson murder trial. Myers was 16 when the murders occurred in 1986. He had seen the two victims at about 3:30 a.m. outside a convenience store and when he learned of the murders the next day, he called the police with this information. Myers saw Mejia at Thompson’s August 2007 preliminary hearing, at which he testified, and they greeted each other in passing. Before that, Myers last saw Mejia in 1996, when he got out of the Army. Myers had no idea why Mejia would say she is afraid of him. He denied having any type of confrontation with Mejia and said he had no criminal record.
Myers admitted calling Mejia once around 3:30 or 3:45 a.m. on November 7, 2007, so he could find out why she implicated him in the murders and urge her to tell the truth. When he called, he asked for Lucille Mejia. A female voice responded “who’s this?� Myers said, “Is Lucy there?� The female voice said “no, she’s not. Don’t call back.� Myers said he hung up the phone. About 30 seconds later he received a phone call, answered it, and the caller hung up. He went to sleep and was awakened by Bain, who came in yelling “Do you know Lucille Mejia? The cops are on their way.� Myers said Bain “had already agitated me that morning.� Bain left the room and Myers went back to sleep until officers arrived and knocked on his bedroom door. When Myers opened the door, the two officers were standing “at the ready.� Myers stated the officers were doing their job, although it was “still unnerving.� The officers had their hands on their guns, but the guns were not drawn.
Myers admitted initially telling the officers he did not know Mejia. He explained this was because: “I didn’t want to cooperate. I was very agitated at the whole situation. I was agitated at the accusations that Lucille Mejia had made about me, and now the cops are there with their hands on their glocks at my door, just not very comfortable feeling.� He explained his reaction when he saw the police at the bedroom door with their guns: “I was angry and agitated, and I had just woken up. I was just perplexed that I make a phone call trying to get to the heart of the matter and it gets turned around where I intimidated a witness, and now the cops are there. Just the whole nature of the thing. To be victimized by somebody’s lies.�
On cross-examination, Myers admitted he had been drinking that night, but said he had “a recollection of all that took place� and he knew what he was doing when he called Mejia. He told the officer he was drunk and could not remember because he was being uncooperative. When asked why he would call Mejia at 3:00 a.m., Myers responded, “I guess my inhibitions factor was down, because I did have a few drinks.� He claimed he was calm when he called Mejia and denied yelling at her. He also denied calling more than once or that he told Mejia that “bad deeds go unpunished,� threatened to drive her crazy or made any threats at all. When asked if he had ever called anyone in connection with the murder trial and made a threat, Myers responded that he called a woman at the local newspaper and had a heated discussion with her, but he denied threatening her or telling her that she better watch her back. He stated he “got heated because they were printing the lies that Lucille Mejia spoke and printing them in the paper, printing my name in connection with the Thompson trial....� Myers admitted asking the woman whether anybody had ever gone over to the newspaper and shot the place up, and that when she said no, he responded that he was surprised. Myers admitted shouting that Mejia was a “lying bitch and needs to be stopped,� and stated that he “apologized for calling her a bitch, but she is a liar.�
DISCUSSION
I. Rights to Call and Confront Witnesses
Myers contends the trial court’s limitation of his cross-examination of Bain and denial of his requests to recall Bain and Myers as witnesses during his defense case violated his rights to confront witnesses against him and to compulsory process of witnesses.
Trial Proceedings
During cross-examination of Mejia, defense counsel asked if she had a chance to examine the police report and whether it accurately represented the statements made to Officer Hart that morning. Mejia responded that she had “[b]riefly� examined the report and agreed her statements were accurate. Ultimately, Mejia was excused “subject to recall.�
During cross-examination of Bain, defense counsel asked him if, during the three years Myers lived with him, he had “any other phone calls.� The prosecutor objected to the question as being beyond the scope of direct. The court sustained the objection, stating that defense counsel could “recall him if you want.� Defense counsel responded that she had no further questions at that time and the court excused Bain “subject to recall.�
After Myers testified, defense counsel asked to recall Bain to the stand. The prosecutor objected, stating there was no offer of proof. Defense counsel explained she was recalling Bain to respond to Myers’s testimony that he was angry and to ask him what he told Myers before police arrived “which would go to Mr. Myers’ state of mind when he was talking to the police and why he would be so angry.� The court explained that Myers’s state of mind was not an issue and since Myers testified he was upset and so excited he was uncooperative, Bain’s testimony merely would be additional evidence in line with what already had been heard.
Defense counsel also wanted to question Bain regarding the officer’s testimony that Mejia told him “she did not know who had been calling her� to confirm whether that was true. The prosecutor responded that defense counsel had ample opportunity to interview Bain, question him on cross-examination and provide an offer of proof. The prosecutor added that Bain could not offer anything else regarding Mejia’s state of mind and his testimony would be “pretty cumulative of the testimony we already heard.�
When the court asked defense counsel if there was anything further, she explained that because Myers’s testimony had refuted some of the earlier statements, only by recalling Bain and Mejia could she address “some of the contradictions that have now been offered into testimony, and I would not have had that information prior to having Mr. Myers take the stand.� Defense counsel claimed she had no reason to know exactly what Myers’s testimony would be and she could not cross-examine Bain until Myers testified.
After the court excused the jury, the discussion continued. The prosecutor responded that defense counsel had ample time to consult with her client and prepare a defense, and to now say she was not in possession of all the facts to adequately cross-examine the prosecution’s witnesses until her client testified gave rise to a question of her competence. The prosecutor did not see a basis for calling Mejia or Bain “within the range of the offer of proof that she made here.� Defense counsel responded that Mejia’s trial testimony varied substantially from her preliminary hearing testimony, particularly her testimony that she had received previous calls from Myers that she had reported to the police, and that she didn’t call police sooner because she didn’t think they were going to respond. Defense counsel explained this was why she could not prepare for Mejia’s testimony and the only people who could confirm the testimony were witnesses who were present that morning, such as Bain who could “talk to the fact that [Mejia’s] reasons given today that she was fearful.�
The court responded that defense counsel had an opportunity to ask Bain about the witnesses’ states of mind and what they were doing. Defense counsel asserted Bain had information directly related to the issue of Mejia’s fear and intimidation. The court stated Bain’s opinion on that issue was irrelevant because Mejia was not at Bain’s house when police arrived there. Defense counsel explained that Bain was able to testify regarding Mejia’s conversation with him, which was “germane to the element as to whether or not she was intimated or not or fearful.� The prosecutor interjected that the victim’s fear is not an element of the crime, and Bain’s testimony regarding his conversation with Mejia “was admitted strictly for a non-hearsay purpose.�
The court responded, “I think we’ll go with that,� and asked if defense counsel had any other witnesses to call. Defense counsel stated if she was not going to be allowed to recall Bain, she wanted to recall Mejia. The prosecutor objected, explaining defense counsel had ample opportunity to cross-examine Mejia, which was the time to ask her about inconsistencies, and asked for an offer of proof. The court, apparently agreeing with the prosecutor, explained that in trials involving a “he said, she said, they said situation� those issues “are covered when people are on the stand, under oath giving their testimony....� The court recognized Mejia had not been excused, but explained there are “still rules that would require whether she’s recalled or not, and for what reasons.� Defense counsel responded that Myers had testified he had no contact with Mejia; the court explained that would be a disputed issue and it was up to the jury to determine whether Myers or Mejia was more convincing, but “[s]imply having Ms. Mejia come in and re[-]say that -- that’s going to be it.� The court then denied the motion to recall both Bain and Mejia “at this point� based on the statements heard in court.
Analysis
A criminal defendant has a constitutional right to confront witnesses against him. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15; Pointer v. Texas (1965) 380 U.S. 400, 406-407.) Undue restrictions on a criminal defendant’s confrontation of a prosecution witness may deprive him of this right. (Davis v. Alaska (1974) 415 U.S. 308, 318.) The Sixth Amendment right to compulsory process also guarantees to defendants the right to present testimony of defense witnesses and to impeach the credibility of prosecution witnesses. (Taylor v. Illinois (1988) 484 U.S. 400, 408-409.)
Not every restriction on a defendant’s desired method of confronting a witness’s credibility is a constitutional violation. Even with respect to the confrontation clause, under both federal and California law the trial court retains wide latitude to restrict admission of evidence that is repetitive, prejudicial, confusing, or of marginal relevance. (People v. Carpenter (1999) 21 Cal.4th 1016, 1051 (Carpenter); People v. Frye (1998) 18 Cal.4th 894, 946 (Frye), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Quartermain (1997) 16 Cal.4th 600, 623-624 (Quartermain).) “[T]he ordinary rules of evidence do not infringe on a defendant’s right to present a defense. [Citation.] Trial courts possess the ‘traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.’� (Frye, supra, 18 Cal.4th at p. 945, quoting People v. Hall (1986) 41 Cal.3d 826, 834 (Hall).) A trial court’s limitation on presentation of evidence regarding the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded evidence been permitted. (Frye, supra, 18 Cal.4th at p. 946; Quartermain, supra, 16 Cal.4th at pp. 623-624.)
“No evidence is admissible except relevant evidence.� (Evid. Code, § 350.)
Similarly, cases interpreting the constitutional right to compulsory process allow restrictions on the admission of evidence that “‘accommodate other legitimate interests in the criminal trial process’� (Rock v. Arkansas (1987) 483 U.S. 44, 55-56 (Rock), quoting Chambers v. Mississippi (1973) 410 U.S. 284, 295) so long as those restrictions are not “arbitrary or disproportionate to the purposes they are designed to serve.� (Rock, supra, 483 U.S. at p. 56.) Exclusion of defense evidence cannot infringe a defendant’s right to compulsory process unless the evidence is “relevant and material to the defense.� (See, e.g., Washington v. Texas (1967) 388 U.S. 14, 23.) “[M]ore than the mere absence of testimony is necessary to establish a violation� of the Sixth Amendment right to compulsory process: A defendant also must make a plausible showing that the witness would be material and favorable to the defense. (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867 (Valenzuela-Bernal).)
Myers contends if he had been allowed to cross-examine or recall Bain, Bain would have testified about (1) whether any other phone calls were made to Mejia from Bain’s house during the three years Myers lived with him, (2) Myers’s temperament when Hart interviewed him at Bain’s house, and (3) whether Mejia asked him during their conversation to identify her caller. But this testimony would not have affected Mejia’s or Hart’s credibility, nor was it material and favorable to the defense. For these reasons, there is no violation of either Myers’s confrontation rights or right to compulsory process.
With respect to the earlier telephone calls Mejia testified Myers made to her, Bain’s testimony would not have discredited Mejia, and was not material or favorable to the defense, because (1) Bain testified he did not know of Mejia before his conversation with her on November 7, therefore he would not know whether Myers had called Mejia on other occasions, and (2) even if he were to testify that there were no other calls made from his residence to Mejia’s, that does not cast doubt on Mejia’s testimony that Myers had called her previously since he could have called her from another telephone. Myers contends if Bain testified that he had not received telephone calls at his residence from anyone who accused Myers of making threats, the testimony could have shown that Mejia had a proclivity towards embellishment. Mejia, however, never testified that she called Bain’s residence to complain of threatening telephone calls in the past. Instead, she testified she had received other threatening telephone calls from Myers.
Myers also contends Bain could have contradicted Hart’s testimony that “painted Myers as a belligerent person with animosity towards Ms. Mejia.� Myers asserts Bain could have testified to his own observations of Myers during the “confrontation� with Hart, as well as to the circumstances before the meeting that may have inflamed Myers. Bain’s testimony on these points, however, would not affect Hart’s credibility or be material and favorable to the defense. First, Myers’s demeanor when Hart first interviewed him was not a contested issue, since Myers admitted he was angry and agitated during the interview. If Bain were to testify that Myers was not angry or agitated, then doubt would not only be cast on Hart’s testimony, but also on Myers’s testimony. Myers’s animosity towards Mejia also was not a contested point, as Myers testified he was agitated at her accusations and about being victimized by her lies. Moreover, there is nothing in the record to suggest that Bain was present during the interview (he may have been in another room) or that he would have refuted Hart’s testimony, as Myers now asserts.
Pointing to Hart’s testimony that Mejia told him that when she called Bain’s residence, she asked Bain who had been calling her, Myers asserts Bain could have confirmed that Mejia made this statement, thereby impeaching Mejia’s credibility regarding her ability to identify the caller. We disagree that his testimony on this point would have had such an effect. Bain already testified about the contents of his conversation with Mejia and never mentioned that she asked him who had been calling her. When defense counsel asked Bain if Mejia “didn’t ask who she was speaking to when she called,� he responded “No.� Although the court agreed with the prosecutor that this statement was hearsay, the testimony indicates that Bain would not have testified favorably for the defense. Moreover, Mejia never denied making this statement to Hart; in fact, she testified that her statements in the police report were accurate.
Myers next asserts the trial court created an appearance of witness partiality when it “promised� defense counsel an opportunity to recall Bain, but subsequently prohibited his recall during the defense case. Myers explains that by prohibiting Bain’s recall, “the court enabled the prosecution to maintain an appearance that all the witnesses were ‘on the prosecution’s side,’ though this simply was not true.� Myers contends Bain intended to testify on his behalf, but was prohibited from doing so, and Myers was prejudiced “by creating the false appearance that Bain, Myers’ own roommate, refused to testify on Myers’ behalf, and instead elected to testify only for the prosecution,� thereby making Myers appear less credible. The record, however, does not bear such a perception out, as much of the argument between court and counsel regarding whether the court would allow defense counsel to recall Bain occurred in the jury’s presence, thereby creating the perception that it was the court, not Bain, who was responsible for his failure to testify in the defense case. Moreover, Myers fails to explain how prohibiting recall of a defense witness, in and of itself, is a violation of his rights either to confront witnesses or to compulsory process.
Myers also contends his rights to confront witnesses and to compulsory process were violated when the court prohibited the defense from recalling Mejia so his counsel could question her about her statement to Hart that she asked Bain who had been calling her. Mejia, however, already had testified that the statements in the police report were accurate. Given this testimony, putting Mejia back on the stand to directly ask her about this particular statement would not have relayed to a reasonable jury a significantly different impression of Mejia’s credibility. In addition, her testimony would not necessarily have been favorable to the defense as she would have the opportunity to explain her statement to the jury.
In sum, we conclude the trial court did not violate Myers’s rights to confront witnesses or to compulsory process.
II. Judicial Misconduct
Myers argues that judicial misconduct denied him his constitutional right to due process. He identifies seven specific instances where he contends the trial judge improperly commented on either defense counsel’s examination of prosecution witnesses or the witnesses’ testimony, resulting in the deprivation of a fair trial. While Myers recognizes that no single comment necessarily warrants reversal, he asserts their cumulative effect gave a reasonable inference that the court disfavored the defense and its evidence. The Attorney General argues Myers forfeited his right to appellate review by failing to object and request an admonition and, on the merits, the court properly controlled the proceedings.
Preliminarily, we address the Attorney General’s forfeiture argument. Since a litigant generally forfeits a claim of judicial misconduct by failing to contemporaneously object and request an admonition unless neither could have cured the prejudice, we agree with the Attorney General. (People v. Fudge (1994) 7 Cal.4th 1075, 1108 (Fudge); People v. Perkins (2003) 109 Cal.App.4th 1562, 1567, citing People v. Terry (1970) 2 Cal.3d 362, 398, disapproved on another ground by People v. Carpenter (1997) 15 Cal.4th 312, 381-382.) Myers attempts to avoid the waiver rule by arguing it would have been futile to object and no admonition could have cured the prejudice the alleged misconduct caused. The futility exception typically arises when the court has overruled the defendant’s objections in a manner that suggests any further objections would be useless. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 821 [judge implied defense counsel was being an obstructionist for making objections].) Since Myers did not raise a single objection to the trial court’s comments, the futility exception does not apply. Moreover, we do not believe the challenged remarks were incurably prejudicial or affected the structural integrity of the trial. Therefore, we decline appellant’s invitation to excuse the waiver rule in this instance. (Compare People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [lack of objection excused where trial judge instructed prospective jurors to lie on voir dire, thus rendering the defendant’s trial fundamentally unfair].)
Nevertheless, to preclude the claim of ineffective assistance of counsel that might otherwise arise, we will address Myers’s argument on the merits. (See People v. Williams (1998) 61 Cal.App.4th 649, 657, citing People v. Marshall (1996) 13 Cal.4th 799, 830-831.)
The principles of judicial conduct during trial are well established. The trial judge is required “to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.� (Pen. Code, § 1044.) “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.� (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207; Evid. Code, § 765, subd. (a).) “A trial court commits misconduct if it ‘persists in making discourteous and disparaging remarks to a defendant’s counsel... and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense.…’� (Fudge, supra, 7 Cal.4th at p. 1107.) “We ‘evaluate the propriety of judicial comment on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury.’ [Citation.] ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made.’� (People v. Sanders (1995) 11 Cal.4th 475, 531- 532.)
The seven instances of alleged misconduct generally fall into four areas. The first area involves two instances Myers contends shows the trial court directed defense counsel on how to question the witness, thereby giving the appearance it believed defense counsel was inadequate. The first of these instances occurred during Mejia’s cross-examination, when defense counsel asked Mejia about the telephone calls she claimed to have received from Myers before November 7. Defense counsel asked: “Well, in our preliminary hearing you didn’t mention any phone calls at that time, did you?� Mejia responded, “No one asked me[,]� and testified she would have mentioned the telephone calls if someone had asked her. The following exchange ensued:
“THE COURT: It would help the Court if you could identify the page.
“THE COURT: Page who?
“THE COURT: Okay.
“THE COURT: Why don’t you read that question and answer to her that you’re concerned about and see where we go from there.
Defense counsel then asked Mejia whether she had said she was fearful for her life. Mejia responded that she was fearful of her life.
The second instance occurred during defense counsel’s cross-examination of Hart regarding whether the police department gave complaints of threatening phone calls a high priority. Hart testified the police would come immediately if there were no calls holding, but if there were other calls, a threatening phone call would not be the first one they would take. Defense counsel asked, “It is definitely considered important to the Merced Police Department?� The prosecutor objected as irrelevant. The court responded, “Well, her inquiry is okay. But, ma’am, the question is satisfactory if you don’t put the phrase ‘definitely’ in there. If you don’t put that word in there the question is okay.�
Myers contends that by telling defense counsel to read the question and answer from the preliminary hearing transcript before Mejia responded, the court essentially directed defense counsel how to conduct her cross-examination, and the court committed misconduct by telling defense counsel she could not use the term “definitely.� We disagree, as neither of these instances rises to the level of judicial misconduct. In the first instance, the court merely asked defense counsel to identify the page in the preliminary transcript she was referring to and suggested she read the question and answer to Mejia. In the second instance, the court was responding to the prosecutor’s objection. As we noted above, the court has discretion to control the mode of questioning of a witness. Here, the court did just that. In so doing, the court was not discourteous to defense counsel, neither did it disparage her.
The second area involves three instances in which, Myers contends, the court opined whether Mejia’s testimony at the preliminary hearing was consistent with her trial testimony and controlled defense questioning to correspond to its opinion. Two of the instances occurred during Mejia’s cross-examination. After Mejia confirmed she testified at the preliminary hearing that she feared for her life, defense counsel stated that she had asked Mejia at the preliminary hearing what she based that fear on, “[a]nd you said, I’m just afraid of Greg.� Mejia answered “I am afraid of Greg Myers.� Defense counsel asked if it was correct that “at that point you didn’t offer any testimony as to any prior phone calls or any other threats made at that time regarding Mr. Myers.� The prosecutor objected, without stating the ground. The court stated, “[t]hat is argumentative, ma’am. She’s testifying as to what she said and that’s what she said.� The following exchange ensued:
“THE COURT: No. She answered it on Line 12.
“[PROSECUTOR]: It’s still argumentative. The question she asked at the preliminary hearing she’s trying to impeach with now. It’s argumentative.
“[DEFENSE COUNSEL]: It says on Line 12, ‘I sincerely believe when Greg tells me he’s going to kill me, I believe that he will,’ that was her answer.
Later during Mejia’s cross-examination, defense counsel asked why she waited so long to call the police if she was feeling threatened. Mejia responded that she “had two reasons,� the first being that the police department had instructed her that phone calls were not a high priority. Defense counsel asked when she was instructed about this. Before Mejia could answer, the court told defense counsel to wait because Mejia was not done with her answer, since she had given only one of the reasons. Mejia then completed her answer: “And my second reason was because I -- I knew, and I take responsibility, I knew that this not being a high priority phone call they were not going to respond, and I was waiting to find out -- my mother was ill. I wanted to wait until daylight. And I didn’t want to leave my home.�
Defense counsel asked if not wanting to leave her home was the reason she didn’t call the police. Mejia responded she had two reasons. Defense counsel replied that she understood the second reason, “but you stated you didn’t want to leave your home.� Mejia answered: “Well, because it was not a high priority. The police department would not respond. It would be based on the priority.� Defense counsel then asked what her second reason was, and Mejia responded that “those two tie together.� The following exchange ensued:
“THE COURT: Well, wait a minute. Let’s -- she didn’t want to leave her home until it was light out. She didn’t want to leave in the dark.
“[PROSECUTOR]: It’s argumentative.
“[DEFENSE COUNSEL]: Was -- in order to make a report that the threats had been made would leaving your home be a requirement?
“Q. Why is that?
“Q. Okay. I understand that. I asked you, would leaving your home be a requirement?
“THE COURT: Sustained. On other grounds as well.�
The third related instance occurred during defense counsel’s closing argument, as follows:
sic“[PROSECUTOR]: This is beyond the scope and mischaracterizes the evidence of being fearful.
“[DEFENSE COUNSEL]: She was silent.
“THE COURT: She wasn’t.�
Myers asserts in three instances, the court either improperly controlled defense counsel’s cross-examination of Mejia or diminished defense counsel’s ability to assert that Mejia was fabricating new information that she previously failed to volunteer when given the opportunity. We disagree. Defense counsel was able to bring to the jury’s attention that she had asked Mejia at the preliminary hearing the basis for her fear of Myers and that Mejia stated only that she believed him when he said he would kill her. From this, defense counsel was able to argue in closing that even though Mejia was not asked directly at the preliminary hearing about the prior telephone calls, Mejia never mentioned the prior calls when asked what evidence she had to support her fear of Myers and when given an opportunity to explain the basis for her fear, she “had no response.� The court’s comments and rulings certainly did not diminish defense counsel’s ability to assert that Mejia fabricated the prior telephone calls. Moreover, the court was correct that Mejia answered the question posed at the preliminary hearing and was not silent, i.e. she did not refuse or fail to answer the question. Despite the court’s comment, the defense was still free to argue, as it did, that her answer did not include information about the prior calls. In our view, the court’s comments showed no “deep-seated favoritism or antagonism� and posed no threat to the impartiality of the jury’s deliberations. (Cf. Liteky v. United States (1994) 510 U.S. 540, 555.)
The third area involves an assertion of misconduct during cross-examination of Bain. After Bain testified about the content of his telephone conversation with Mejia on November 7, including that Mejia was “screaming and yelling� at him, defense counsel asked whether Mejia appeared to be afraid or intimidated. Bain responded, “No.� The prosecutor objected on the ground of relevance and moved to strike. Defense counsel asserted it went to state of mind. The court sustained the objection, stating “[h]e said she was yelling and agitated.� Bain answered, “Yes, sir.� Mejia contends that by its comment, the court was answering for Bain “by clearly asserting that Mejia was afraid and intimidated, presumably because Mejia had been yelling and agitated, though Bain had just testified that it was his impression that she did not appear afraid or intimidated.�
This argument is without merit. Bain had testified that Mejia was yelling at him during their conversation. The court sustained the prosecutor’s objection to defense counsel’s question whether Mejia appeared to be afraid or intimidated, which Bain answered negatively. The court repeated what it understood was Bain’s testimony. While Bain had not used the word “agitated� when relating their conversation, Bain confirmed that she was in fact yelling and agitated. Yelling and being agitated is not the same as being afraid and intimidated. There was no risk here that the jury might be confused or misled, and certainly no judicial misconduct.
In the last area, Myers asserts the court improperly criticized and corrected defense counsel during closing argument. Defense counsel argued that when Hart arrived at Bain’s home to ask Myers questions Hart already knew the answer to, Myers was “waking up out of a dead sleep having been drinking that morning, and also having been warned by Mr. Bain that the police were essentially on their way, is now being accosted in his home, by officers, guns ready and -- � The prosecutor objected that this mischaracterized the evidence. The court responded, “He said they had their hands on their guns. They didn’t have guns ready.� Myers contends that because he had testified that the officers were standing at “the ready� with their hands on their guns, defense counsel’s statement was substantively accurate, therefore the court’s statement was a “continued attempt to correct the evidence� and “gave the reasonable inference that he thought the defense was inadequate.�
The court here was responding to the prosecutor’s objection that defense counsel’s statement mischaracterized the evidence. The court’s statement regarding the evidence was correct. Myers does not contend otherwise, but instead asserts that because defense counsel’s statement was “substantively accurate� the court should not have commented. We fail to see how relaying an accurate description of the evidence amounts to judicial misconduct.
Cases in which judicial misconduct led to reversal on appeal invariably involve extremely egregious and demeaning attacks from the bench. (See, e.g., People v. Fatone (1985) 165 Cal.App.3d 1164, 1176 [conviction reversed based on an extensive pattern of judicial hostility toward defense counsel, which included belittling suggestions, humiliating “elementary school scolding,� references to counsel’s conduct as improper, unethical and taken in bad faith, and derogatory comments about counsel’s ineptitude and lack of experience, that permeated the record and defied a finding of no prejudice]; People v. Zammora (1944) 66 Cal.App.2d 166, 205-206 [trial court systematically belittled defense counsel before the jury by accusing him of making repeated objections, suggesting he look up what a leading question was, sarcastically referring to someone using ventriloquism to make his statement and accusing him of sleeping].) Here, we have examined every incident of which Myers complains and none, whether considered separately or cumulatively, rise to the level of prejudicial judicial misconduct.
III. Cumulative Error
Myers contends reversal is required based on the cumulative effect of the prejudice from the above claimed errors. We have either found that error did not occur or when it did occur, it was harmless. Accordingly, we conclude the cumulative effect does not warrant reversal of the judgment. (People v. Geier (2007) 41 Cal.4th 555, 620.) “A defendant is entitled to a fair trial but not a perfect one.� (Lutwak v. United States (1953) 344 U.S. 604, 619.) Myers received a fair trial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Ardaiz, P.J.Wiseman, J.