Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA057021, Shari K. Silver, Judge.
Geragos & Geragos, Mark J. Geragos and Shepard S. Kopp for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Mohammad A. Rezaei (defendant) appeals from the judgment entered and the six-year sentence imposed after he pled guilty to driving under the influence and causing injury (Veh. Code, § 23153, subd. (a)); driving with a 0.08 percent blood-alcohol level and causing injury (Veh. Code, § 23153, subd. (b)); vehicular manslaughter without gross negligence (Pen. Code, § 192, subd. (c)(3)); and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). Defendant contends his guilty plea was illegally obtained because it was based on the trial court’s representation that defendant would be sentenced either to probation or a low term of four years in prison. Defendant contends the trial court’s inability to remember making such a representation was grounds for recusal under Code of Civil Procedure section 170.1. Defendant further contends the trial court was biased against his defense counsel and that he was denied his federal constitutional right to a fair and impartial trial judge. We affirm the judgment and the sentence.
All further statutory references are to the Penal Code, unless otherwise indicated.
BACKGROUND
On February 19, 2006, defendant drove while intoxicated and crashed his car in Los Angeles County. A blood sample drawn two and a half hours after the crash contained a blood -alcohol concentration of 0.11 percent. Defendant’s passenger, Gilda Izadi, died from injuries she sustained during the crash, and defendant himself was severely injured.
An information filed by the Los Angeles County District Attorney charged defendant with driving a vehicle while under the influence of alcohol and causing injury (count 1; Veh. Code, § 23153, subd. (a)); driving with a blood-alcohol level greater than 0.08 percent and causing injury (count 2; Veh. Code, § 23153, subd. (b)); vehicular manslaughter without gross negligence (count 3; § 192, subd. (c)(3); and gross vehicular manslaughter while intoxicated (count 4; §191.5, subd. (a)). As to counts 1 and 2, it was further alleged that defendant personally inflicted great bodily injury (§ 12022.7, subds. (a)-(b).)
On January 8, 2008, defendant’s counsel, Mark Geragos (Geragos), advised the trial court that defendant wished to enter into an open plea. The trial court explained to defendant that he would be evaluated pursuant to section 1203.03 to determine whether the prison had appropriate means of caring for defendant in light of the injuries he sustained during the car crash. The court admonished defendant: “Now, I make no promises as to what sentence I will give you in this case.... Do you understand that I make no promises whatsoever to you?” Defendant acknowledged that he understood this. The trial court also explained the range of possible sentences that might be imposed: “[T]he exposure is 10 years state prison on this case. So the sentencing range could be as high as 10 years. I don’t think I would be giving you the maximum, but you still have to understand that 10 years is a possibility. And the least sentence I will give you would be probation, or state prison, execution suspended, with probation and a year in county jail. Do you understand that?” After conferring with Geragos, defendant acknowledged that he understood.
The record indicates that the parties appeared before the trial court on January 2, January 4, and January 7, 2008. The record on appeal does not include a transcript of those proceedings.
Section 1203.03, subdivision (a) provides: “In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such facility for a period not to exceed 90 days, with the further provision in such order that the Director of the Department of Corrections report to the court his diagnosis and recommendations concerning the defendant within the 90-day period.”
The prosecutor then proceeded to advise defendant and obtain a waiver of his constitutional rights. Before taking defendant’s plea, the prosecutor asked, “Has anyone made any promises or threats to you to get you to enter your plea?” Defendant responded “no.” Defendant then pled guilty as charged and admitted the special allegations.
After accepting defendant’s plea, the trial court invited both the prosecutor and Geragos to submit sentencing memoranda, stating, “the more both sides can give me on sentencing in advance, the more I can think about what I believe is fair and just.” The court further stated that input from the victim’s family would be “extremely important” in determining defendant’s sentence.
Both parties submitted sentencing memoranda. The prosecutor recommended that defendant be sentenced to six years in state prison. Geragos recommended that defendant be placed on probation.
At the April 18, 2008 sentencing hearing, the trial court heard statements from both defendant’s and the victim’s family members. Geragos argued that defendant should be placed on probation, stating that he had “contemplated just declaring a 1368 on him on many occasions.” The following exchange ensued:
Section 1368, subdivision (b) provides in part: “If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.”
“Mr. Geragos: [M]y guess is he doesn’t understand anything that’s going on right now as we speak.
“The Court: Now, just wait a second. Now you’ve thrown 1368 issues into this sentencing hearing. I remember this open plea very carefully. And I remember that it was the defendant’s mother and sisters who were causing an awful lot of emotion and crying and outbursts at the time of the plea. I remember this day clearly as if it were yesterday. And I would not have accepted the defendant’s plea had I felt there was any issue whatsoever that he did not understand exactly what was going on. It was his mother and two sisters who were causing the outbursts and the emotion. So I want the record to be very clear on this.
“Mr. Geragos: Okay. And I am not telling you -- I’m not meaning to suggest in the least that wasn’t knowing or voluntary.”
At the conclusion of the hearing, Geragos said that he needed more time for argument, and the trial court continued the matter.
The sentencing hearing resumed on June 20, 2008. After Geragos concluded his argument, the trial court imposed the midterm sentence of six years as to count 4, and thereafter granted the prosecutor’s motion to dismiss the other convictions. After the sentence was imposed, Geragos asserted that the trial court had promised before the plea that it would impose no more than the low term sentence. The following exchange occurred:
“Mr. Geragos: The court, when the jury was coming up, was the one who asked us to approach. The court is the one who at that point said, ‘Let’s send it out for a 1203.’ The court is the one who told me that even if you granted probation, as you stated on the record, that it would be a one-year minimum and the court said you would choose between that and the low term. How we got to a midterm is beyond me. That is what you told me at the bench. If I had known that the court was going to impose six years, why would I have ever pled him open? There is no reason in the world why I ever would have pled him open. That’s why I’m upset. I confess that I should have stated that on the record when the court did it because that’s what the court told me at the time. That’s why I’m hot. And I apologize for being hot, but that’s what the court told me. That’s why I entered the plea. There’s no reason in the world why this guy should get six years. I understand you’ve stayed up late and you’ve thought about it, and I don’t for a second dispute the earnestness of your decision. What I dispute is the fact that I should have put it on the record at the time.
“The Court: Counsel, I don’t remember saying that. [Prosecutor]?
“[The Prosecutor]: I can tell the court that the court did not say that.
“Mr. Geragos: Well
“The Court: Just wait a second counsel. You make accusations, and then you want to run out of the courtroom.
“Mr. Geragos: I don’t want to run out of the courtroom.
The Court: Just sit down
“Mr. Geragos: I am sitting.
“The Court: -- And let me inquire. All right? [Prosecutor], do you remember anything on that issue?
“[The Prosecutor]: Yes. The court asked us to approach. I know that the court had a similar case pending in front of it in which the defense was asking for a 1203 diagnostic. After that case was over and completed, the court asked us to approach. Mr. Geragos and I did. And the court suggested that we send this out for a 1203 diagnostic. What you indicated at that point is that you would -- the defense was asking for no jail time at all. And you indicated, ‘I want to be clear. The minimum I’m going to give you is a year in county jail with probation.’ And the court indicated, to me, that you would not impose the maximum of 10 years. There were no further representations made about it was going to be a low term cap on this at all. I can assure the court you did not say that. It is not reflected in my notes. You said nothing of the kind.
“Mr. Geragos: I can assure the court we had the decision -- this discussion on the other case about the six years. That gentleman had a hit-and-run. That gentleman had a prior felony which he was on probation for. And the D.A.’s office gave a six-year deal. I had this discussion with you, and we talked about whether it was going to be a low term or probation, send it out, because I wanted a no time deal. To go from a no time deal to six years which I got for another client in this courthouse who was on felony probation with twice the legal limit of alcohol who hit and ran and lied to the cops and it was a complete stranger to him is mind-boggling, that I’m sitting here getting -- that he’s getting the exact same sentence.
“The Court: Stop. All right? I don’t remember saying that. I accept your representation. Normally if I make any type of representation as to what the sentencing range is, I usually write it down and I don’t see anything written down. Nor do I see anything in the plea transcript. And I was very careful about saying that I make no promises whatsoever. But let me take a moment and read the entire plea transcript. Just one moment. I take this very seriously. If I said that to somebody, then
“Mr. Geragos: I know that you didn’t
“The Court: Stop. Stop. If I said that to both sides, I will honor that. Stop. Give me a chance to take a look.”
The trial court then reviewed, on the record, the transcript from the hearing at which defendant entered his plea. After doing so, the court stated: “I just don’t see anywhere that there is an indication regarding the lid being three years low term.... I do not see anything there.” Based on its review of the transcript, the trial court concluded: “I don’t believe I ever said to you that I will limit the sentence to the low term.”
The prosecutor agreed with the trial court:
“[The Prosecutor]: Let me refer the court to page 7 of the People’s sentencing memorandum. My first paragraph where I indicate: ‘The court stated on the date of sentencing that the minimum amount of time in custody that the court would impose is one year in county jail, and the court indicated further that it would not consider imposing the high term of 10 years in state prison on count 4.’ Those were the only qualifications that the court made on this case. I am a careful conscientious prosecutor. If the court had said to us that your choice was between county jail and the low term, I never would have requested a midterm sentence in my sentencing memorandum. I just would not have done it. I have laid out here exactly what the court has said. You made no other qualifications. You made no promise to anyone. I didn’t hear the term ‘low term’ ever coming out of the court’s mouth on this case. Ever.”
When Geragos continued to insist that the trial court had promised to impose a low term sentence, the trial court asked: “Do your notes reflect a low term representation maximum?” Geragos replied that he would have to check the papers in his office. The court asked Geragos how long he would need to look through his papers, and Geragos responded that he would need a week. The court then continued the matter for one week.
On July 8, 2008, defendant moved to withdraw his guilty plea, contending that the plea had been based on an “off the record” statement by the court that it would impose either probation or the low term sentence. As evidence to support the motion, defendant offered his own unsigned statement stating that before entering the plea, Geragos told him that the court had promised to impose no more than a low term sentence; a declaration by Geragos that the trial court told him it would impose no more than the low term; a declaration signed by defendant’s sister Beatrice that she heard the court say it would choose between probation and the low term; and a declaration signed by defendant’s sister Patricia that she also heard the court say it would choose between probation and the low term. The prosecutor opposed the motion, arguing that defendant’s claim was not credible.
The hearing on defendant’s motion to withdraw the plea was scheduled for July 18, 2008. Geragos did not appear at the hearing, although the trial court had previously denied a motion by Geragos to continue the hearing. Shepard Kopp, another attorney from Geragos’s office, appeared for at least part of the proceedings that took place on July 18, 2008, but told the trial court that he could not be present in the afternoon. The matter was therefore continued.
The record does not include a transcript of the July 18, 2008 proceeding.
On July 25, 2008, Geragos filed a verified statement of disqualification pursuant to Code of Civil Procedure sections 170.1 and 170.3, seeking to disqualify the trial court on the grounds that the court had knowledge of a disputed fact and was biased against him. Geragos alleged that the trial court had personal knowledge of the disputed fact as to whether it had told him that defendant would be sentenced either to probation or to the low term in state prison. Geragos further alleged that the trial court had demonstrated bias against him by failing to recuse itself when requested to do so, by refusing to continue the hearing on defendant’s motion to withdraw his plea, and by falsely describing defendant’s case to another judge as a “Watson murder” case.
Code of Civil Procedure section 170.1, subdivision (a)(1)(A), requires a judge to be disqualified if “[t]he judge has personal knowledge of disputed evidentiary facts concerning the proceeding.” Code of Civil Procedure section 170.3, subdivision (c)(1), allows any party to submit a verified statement as to why a judge who should disqualify himself or herself but refuses to do so should be disqualified.
At the July 25, 2008 hearing, the trial court stated that it had reviewed the motion to disqualify, that it did not need argument on the issue, and that it was prepared to rule on the motion. Geragos asked the trial court to recuse itself, arguing that the court had demonstrated prejudice towards him. Geragos then said he had reviewed the reporter’s transcript of the July 18, 2008 court proceedings and discussed those proceedings with defendant, and that defendant had accused the court of attempting to persuade him to proceed without counsel. The trial court dismissed the accusation as “ridiculous” and denied the request for recusal. When Geragos continued to argue, the trial court explained that defendant had been brought to the courtroom on July 18, 2008, in order to explain to him that his counsel could not be present and that the matter was being continued. The trial court then asked the prosecutor whether her recollection of the July 18, 2008 proceedings was any different. The prosecutor agreed with the court’s recollection of events. The prosecutor then referred the trial court to case authority indicating that the motion to disqualify was untimely. The trial court agreed and issued an order striking the motion to disqualify.
The trial court then turned to the motion to withdraw defendant’s plea. The court again reviewed the transcript of the January 8, 2008 hearing at which defendant entered his plea and noted that it contained no promises or representations by the trial court concerning a low term sentence. The trial court further noted that it had given Geragos the opportunity to produce his own notes as evidence of any promise or assurance of a low term sentence, but no notes had been produced. The trial court observed that defendant’s family sits approximately 22 feet from where the court sits. The court stated that given that 22-foot distance, the court did not find credible the declarations of defendant’s sisters stating that they had overheard a sidebar conference between the trial court and counsel in which the court had promised a low term sentence. Finally, the court noted that neither the prosecutor’s nor defendant’s sentencing memorandum contained any indication that the trial court would impose a low term sentence. The trial court then denied the motion to withdraw defendant’s plea.
On August 4, 2008, defendant filed a petition for writ of mandamus, contending his motion to disqualify had been both timely and meritorious. This court summarily denied that petition. (Rezaei v. Superior Court, No. B209754, August 5, 2008 [nonpub. opn.].)
On December 5, 2008, the trial court convened a hearing to revisit the sentencing issue and to give the parties the opportunity to argue whether a low term sentence was appropriate in this case. After hearing argument from the parties, the trial court left the six-year sentence intact. This appeal followed.
DISCUSSION
I. Defendant’s Constitutional Claim is Cognizable on Appeal
Defendant’s sole contention on appeal is that he was denied his constitutional right to an impartial trial judge. His challenge is based on the record presented to the trial court on the motion to disqualify. The Attorney General contends defendant’s challenge to the trial court’s ruling on the disqualification motion is not cognizable in this appeal.
To the extent defendant’s claim is that the trial court erred by denying his motion to disqualify under Code of Civil Procedure section 170.1, that claim is not cognizable in this appeal. Code of Civil Procedure section 170.3, subdivision (d) states: “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court’s order determining the question of disqualification....” We previously denied defendant’s petition for writ of mandate challenging the trial court’s order striking the disqualification motion. Defendant’s statutory disqualification claim cannot be revisited in this appeal. (See People v. Brown (1993) 6 Cal.4th 322, 333.)
Code of Civil Procedure section 170.3, subdivision (d) does not apply, however, to defendant’s constitutional claim that he was denied an impartial trial judge. That statute “does not apply to, and hence does not bar, review (on appeal from a final judgment) of nonstatutory claims that a final judgment is constitutionally invalid because of judicial bias.” (People v. Brown, supra, 6 Cal.4th at p. 335.) We therefore address defendant’s constitutional claim.
II. Defendant Has Established No Violation of His Constitutional Rights
A defendant has a due process right under the state and federal Constitutions to an impartial trial judge. (Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Brown, supra, 6 Cal.4th at p. 332.) “The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1111.) “A judge’s impartiality is evaluated by an objective, rather than subjective, standard.” (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another ground in Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 346.) The question is whether a reasonable person “‘“‘would entertain doubts concerning the judge’s impartiality.’”’” (Hall v. Harker, at p. 841.) “On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of ‘“a fair, as opposed to a perfect, trial.”’ [Citations.]” (People v. Guerra, supra, at p. 1112.)
The trial court’s disagreement with Geragos’s assertion that the court had assured him that it would impose either probation or a low term sentence establishes neither judicial misconduct nor prejudicial bias. The record shows that the trial court went to great lengths to ensure that its recollection that it had made no such assurances was accurate. The trial court asked the prosecutor whether she remembered the court making any representations concerning a low term sentence, and the prosecutor was adamant that the court had not. No evidence of any such representation could be found in the trial court’s notes or the prosecutor’s notes. The trial court asked Geragos whether his notes reflected any representation concerning a low term sentence. When Geragos responded that his notes were in his office and that he needed a week to locate them, the court continued the matter to allow him do so. Geragos never produced any notes supporting his assertion that the trial court had promised to impose a low term sentence. The sentencing memoranda submitted by the parties do not mention any assurances or representation by the trial court concerning a low term sentence.
The trial court also reviewed the transcript of the hearing at which defendant’s plea was entered. That transcript shows that the trial court repeatedly told defendant that it was making no promises as to what sentence would be imposed in the case and that a 10-year sentence was possible. The transcript also shows that the prosecutor confirmed with defendant, before taking his plea, that no one had made any promises to him in order to induce him into entering a plea.
Finally, the trial court assessed the credibility of the two witnesses who submitted declarations stating they had overheard the trial court tell counsel for the parties during a sidebar conference that the court would impose a low term sentence or grant probation. The trial court observed that the witnesses were located 22 feet away from the parties to the sidebar conference and were therefore unlikely to have overheard their discussion.
A reasonable person would not entertain doubts concerning the trial court’s impartiality in this case. The record does not support defendant’s claim that he was denied his due process right to an impartial judge.
Defendant cites the “acrimonious interactions” between Geragos and the trial court during the July 25, 2008 hearing on the motion to disqualify as further evidence of the trial court’s bias against him and his counsel. He claims the trial court refused to allow Geragos to make a record concerning the timeliness of the verified statement of disqualification, even though the prosecutor was allowed to argue the issue; the trial judge “repeatedly” raised her voice when speaking to Geragos and accused him of “playing games”; refused to continue defendant’s motion for a new trial; made false statements to another judge about the nature of the instant case, describing it as “a Watson murder case”; and accused Geragos of inventing the trial court’s alleged representation concerning a low term sentence.
“Section 1044 provides that a trial court has the duty to control the trial proceedings. [Citation.] When an attorney engages in improper behavior, such as ignoring the court’s instructions or asking inappropriate questions, it is within a trial court’s discretion to reprimand the attorney, even harshly, as the circumstances require. [Citation.] Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. [Citations.] Moreover, a trial court’s numerous rulings against a party--even when erroneous--do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]” (People v. Guerra, supra, 37 Cal.4th at pp. 1111-1112.)
Section 1044 states: “It shall be the duty of the judge 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.”
The record shows that the trial court became irritated with Geragos during the July 25, 2008 hearing after Geragos repeatedly interrupted the court. The court admonished Geragos to be quiet and said, “I’m tired of your game playing.” The trial court then said that it would give Geragos the opportunity to argue, and the court subsequently allowed him to do so. Defendant’s allegations concerning “false statements” made by the trial court, or accusations that Geragos had invented or imagined any representation of a low term sentence are not supported in the record. The interactions between Geragos and the trial court do not establish prejudicial bias.
DISPOSITION
The judgment and sentence are affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.