Opinion
A149035
03-09-2018
THE PEOPLE, Plaintiff and Respondent, v. DARNELL UNDERWOOD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. Nos. FCR310909 FCR311648
After a jury trial in case No. FCR310909, defendant Darnell Underwood was convicted of first degree residential robbery (Pen. Code, § 211), first degree burglary with a person other than an accomplice present (§ 459), elder abuse likely to produce great bodily injury (§ 368, subd. (b)(1)), false imprisonment by violence (§ 236), and criminal threats (§ 422), committed at the home of P.S. on September 12, 2014. Defendant also resolved charges alleged in case No. FCR311648, by pleading no contest to first degree burglary with a person other than an accomplice present (§ 459) committed at the home of M.S. on July 5, 2014, and first degree residential burglary (§ 459) committed at the home of M.G. and N.V. on August 29, 2014. Defendant was sentenced to an aggregate term of 11 years in state prison.
All further unspecified statutory references are to the Penal Code.
On appeal defendant presents arguments challenging his convictions and sentences imposed in case No. FCR310909. He seeks reversal and a new trial on the grounds that his motion to quash/traverse a search warrant and suppress evidence was improperly denied and the trial judge was biased against him. In the alternative, defendant requests that we remand the matter with directions to the trial court to stay the sentences imposed on the convictions for elder abuse, false imprisonment, and criminal threats, under section 654. We conclude there is no merit to defendant's contentions, and accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant challenges only his convictions and sentences imposed in case No. FCR310909, our factual and procedural background is limited to the trial court proceedings relative to the charges filed in that case. The following relevant evidence was presented at a jury trial held in March 2015.
A. Prosecution Case
Eighty-two-year-old P.S. lived alone in a residence with an attached garage. The house had two interior doors that allowed access to the garage. The garage also had an exterior door that allowed access to an outside driveway and the street in front of the residence. On the morning of September 12, 2014, between 5:30 a.m. and 6:00 a.m, P.S. woke up and went through the two interior house doors and the garage to get her paper on the sidewalk. After retrieving the paper, she left the exterior garage door open, but locked the two interior house doors when she reentered the house. Around 8:00 a.m., P.S. opened the two interior house doors and found a man crouched by her car in the garage. The man wore a hooded sweatshirt, with the hood covering his head; had a "bluish gray" mask covering his face and gloves covering his hands; and he carried a gun. P.S. yelled that she was calling the police and closed the two interior house doors to lock them. The man pried open the first interior house door and then kicked in the second interior house door. Before P.S. could reach the telephone, the man, using an unidentified object, hit her on the back of the head so hard that she fell face down onto the floor, but she was not unconscious. While P.S. was on the floor, the man handcuffed her left wrist and put her arms through the rungs of a dining room chair and attached the second handcuff. When P.S. looked up at the man, he grabbed her glasses and threw them across the room. The man then went through several drawers of the furniture in the family room and collected items, placing them in a shopping bag. He also searched the bedrooms, taking several pieces of jewelry and several coins, including some Australian coins and British commemorative coins, one of which commemorated the marriage of Prince Charles and Diana and was purchased from the British Royal Mint in the 1980's. P.S. asked the man why he would do this to "an old lady," and he said he was a drug addict and " 'needed a fix.' " The man found a holster and asked P.S. for the location of the gun. P.S. repeatedly said she did not have a gun. The man pointed his gun at her and threatened to shoot her if she did not tell him the location of the gun. He said, "I don't want to hurt you but," and then he said, "only twice," he was going to shoot her. P.S. told the man she was expecting a visiting nurse to come to the house soon. At 8:25 a.m., the nurse arrived and rang the doorbell. The man threw the items he had collected into a bag, and left the house through the back door. Although still handcuffed, P.S. was able to get up and walk through the interior house doors into the garage. When P.S. saw the nurse outside the opened exterior garage door, she yelled to the nurse that she needed help and to call 911. When the police arrived, they removed the handcuffs securing P.S. Later that afternoon P.S. went to the hospital emergency room. The medical staff found that P.S. had a closed head injury but no fracture. The next day her head was fine. One of her wrists was sore for approximately a week, and then the pain went away.
During the investigation, the police examined an area outside P.S.'s residence and found items of jewelry, which were photographed and then returned to P.S. In court, P.S. identified a watch that was recovered and returned to her. An officer also found a mask and placed it in an evidence bag. In court, P.S. identified the recovered mask as the mask worn by the man who assaulted and robbed her. The police sent the mask to the Department of Justice (DOJ) laboratory for DNA analysis. The DOJ laboratory analysts determined that DNA found on the mask matched defendant's DNA profile. Through further police investigation, Detective Steven Trojanowski, Jr., confirmed an address for a residence where defendant was living, and the officer secured a warrant to search the residence.
When shown the mask in court, P.S. described the mask in the following manner: "You could see the sides a little bit, you know, the colored sides and the black in the front." When questioned about her earlier testimony describing the mask as being "bluish gray," she explained, "You could see a little of the sides in the front, and I guess the bluish gray on the side struck me more than the front. I don't know. [¶] . . . [¶] I was upset."
Several police officers executed the search warrant at the residence where defendant was living. During the search of the residence, the officers found a rental agreement and a PG&E bill with defendant's name on it. The officers also found various types of ammunition for various caliber guns and gun cases. The only gun found at the residence was a BB gun, which was located inside a backpack situated on the west side of the exterior of the residence. At trial P.S. was shown a photograph of the BB gun, but she testified she was sure it was not the object held by the man who committed the burglary and robbery at her home. P.S. also testified that several of the coins recovered by the police at defendant's residence belonged to her. Defendant's girlfriend, Sarah Woodby, told the officers that she had received the coins, later identified by P.S., from a friend. Sarah Woodby also told the police that defendant stayed at the residence two or three times a week.
Joseph Allen Woodby testified he owned the residence searched by the police. Defendant was the boyfriend of his daughter, Sarah Woodby. Sarah and defendant had two children together. Sarah and the children lived at the residence with her father. Two or three nights a week defendant was permitted to stay in Sarah's bedroom. Joseph Woodby identified a document in court as a rental agreement that Sarah had drafted reflecting that she and defendant paid $250 in rent. However, Joseph Woodby did not receive any rent, and he had not signed the agreement.
The prosecution also presented expert testimony regarding the analysis of the DNA found in the mask recovered by the police. Jonathan Sewell, who worked at a DOJ laboratory, qualified as an expert in the field of DNA extraction, quantification, typing, and comparison. He explained the general method for extracting and analyzing DNA from a piece of evidence. He then described the process he used for extracting and analyzing the DNA found on the mask, including the identification of 15 genetic markers, or "loci," which were generally accepted in the United States scientific community, and had been used to make matches since the early 2000's. The DNA profile that was developed from the mask was compared to profiles in a DNA database. The search of the DNA database found a match to a DNA profile of Darnell Mohammad, also known as Darnell Underwood. Sewell asked the police to obtain a reference sample from defendant to confirm the match. Sewell received defendant's reference sample, and an analysis confirmed the match. Sewell further testified that the 15-locus match of the DNA found on the mask, and defendant's DNA profile, were estimated to occur at random in approximately one out of 1.1 quintillion people in the African-American population, one in 2.1 quintillion in the Caucasian population, and 1 in 5.2 quintillion people in the Hispanic population. A quintillion is the number 1 followed by 18 zeros, i.e., "a billion multiplied by a billion."
B. Defense Case
Sarah Woodby, defendant's girlfriend, testified on his behalf. She acknowledged that defendant was her boyfriend, and the father of her two children. She confirmed that she lived at the residence searched by the police. Defendant did not live with her, but he sometimes spent the night. She was questioned about the coins recovered by the police during their search of her bedroom, in particular, an Australian coin and the coin commemorating the marriage of Prince Charles and Diana, which coins P.S. had identified as belonging to her. Sarah Woodby testified that all the coins found in her bedroom had either been purchased at garage sales, found in junkyards or random different places, or given to her by friends. Sarah Woodby also acknowledged that the rental agreement found by the police was false. She said there was no rental agreement between herself, defendant, and her father. She had prepared the rental agreement to show the welfare office. If she failed to provide documentation that she paid rent, the welfare office would not provide her with "food stamps" and "cash aid." Sarah Woodby identified a bag that was found in her bedroom. The bag contained several driver's licenses and social security cards in other people's names. She claimed she found the identity documents in a junkyard. She also admitted she had suffered prior convictions for petty theft, receipt of stolen property, and false registration of a vehicle.
Defendant also called as an alibi witness Tamara Cruz, a friend of both defendant and Sarah Woodby. Cruz testified that on the day before the break-in at P.S.'s residence, she and defendant went to a casino. They slept in Cruz's car that evening, and the next day, September 12, they went back to the casino in the morning. Defendant got ill and Cruz drove him to a hospital in the afternoon. After defendant was seen in "triage," they stayed in the hospital waiting room for several hours but left because defendant was not being helped by medical staff. Cruz and defendant then went back to the casino. They again slept in Cruz's car that night, and the next day, September 13, they drove home. Cruz did not tell anyone she and defendant had gone to a casino, and she did not have any receipts confirming the trip. Cruz also admitted she had suffered prior convictions for petty theft with a prior conviction, and three misdemeanor theft convictions.
The parties stipulated that a request was made to the Santa Rosa Memorial Hospital requesting any and all medical records related to defendant's treatment on or about September 12, 2014, "including, but not limited to, any registration, sign-in, check-in records," and the records received in response to that request were admitted into evidence as defense exhibit A. In closing argument, the prosecutor argued the medical records showed that defendant got to the hospital at 4:10 p.m., which was more than enough time to commit the robbery at 8:00 a.m. and then go to the casino and later the hospital. According to the prosecutor, the records also showed that defendant was actually admitted into the hospital at 9:30 p.m., but he left 30 minutes later.
DISCUSSION
I. Denial of Defendant's Motion to Quash/Traverse a Search Warrant and Suppress Evidence in Case No. FCR310909
A. Relevant Facts
During the investigation of the incident at P.S.'s residence, the police secured a warrant to search the Woodby residence where defendant had been staying with Sarah Woodby. In his affiant statement of probable cause, Detective Trojanowski included the following information relative to the face mask found at P.S.'s residence: Shortly after the reported break-in, Trojanowski responded to the scene and spoke briefly to P.S. and another officer about the circumstances of the robbery and the specific location of the events. An officer pointed out to Trojanowski several pieces of jewelry and other items that were dropped by the suspect near the rear perimeter fence of the victim's backyard. Based on the location of the dropped items and "a K9 search for the suspect" by another officer, Trojanowski concluded the suspect had exited the residence into the backyard. While searching "the area directly behind the victim's residence and us[ing] the least resistant path" that could be walked on, Trojanowski walked to an area "at the city fence line" and found "a dark gray white and black head garment" that he believed looked like the mask described by the victim. Trojanowski did not handle the mask, but he asked another officer, who was gloved, to collect the item and place it into a paper evidence bag. The evidence bag containing the mask was booked into evidence and later transferred to the DOJ for forensic analysis. Trojanowski received back from the DOJ a physical examination report indicating that "a fifteen-locus unknown male DNA profile was detected for the swabs of the facemask. This male DNA profile was uploaded into the Combined DNA Index System (CODIS)[]. DOJ Criminalist Jonathan E. Sewell was later contacted, and indicated that the DNA profile match had been uploaded into CODIS and FPD [Fairfield Police Department] will be notified when the DNA match was confirmed by a separate laboratory." On October 22, 2014, Trojanowski received a second DOJ physical examination report and a confirmation letter. The physical examination report indicated the CODIS search resulted in "[a] fifteen-locus match" being "identified between this case evidence and S-Donnell Mohammed, California state identification number (CII) A09059034." "The confirmation letter stated that the DNA profile from [the] evidence sample submitted, was searched against the Cal-DNA databank and resulted in a candidate match to an individual offender hit. The individual sample profile and match, were confirmed by that second laboratory (DOJ Richmond). The California DOJ confirmed the identifying information associated with a sample from Donnell Mohammed; California state identification number (CII) A09059034." Trojanowski further averred that "Donnell Mohammed is an a.k.a. of S-Darnell Underwood. This information was confirmed by reviewing the criminal history report of S-Darnell Underwood and matching the CII number." Trojanowski further averred that "[b]ased on the DNA test results," he believed defendant was responsible for the home invasion robbery and assault on P.S. The magistrate (Hon. Christine A. Carringer) signed the warrant authorizing a search of the Woodby residence for evidence and a search of defendant's person to secure a DNA sample.
CODIS "connects DNA laboratories at the local, state, and national level" and "collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes." (Maryland v. King (2013) 569 U.S. 435, 444-445.) "One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a 'random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).' [Citation.] The CODIS loci are from the nonprotein coding junk regions of DNA, and 'are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.' [Citation.] STR information is recorded only as a 'string of numbers'; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. [Citation.] In short, CODIS sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information about matched STR profiles." (Id. at p. 445.)
Before trial, defendant moved to quash/traverse the search warrant and suppress any evidence found in the search of the Woodby residence and his DNA sample, which had been secured pursuant to the execution of the warrant. The motion was based on the assertion that while the search warrant application indicated there was a potential match between defendant's DNA and the DNA recovered from the mask found outside P.S.'s residence, "there [was] no indication whether or not this DNA could be matched to a number of other individuals. No statistical analysis was provided indicating the rarity of the potential match, or the lack [thereof]." According to defendant, without the statistical proof of the rarity of the match, "the fact that there was a 'match' is meaningless," rendering that information insufficient to support a finding of probable cause.
In opposition, the prosecutor argued that a statistical analysis demonstrating the rarity of the DNA match was not required to establish probable cause. The prosecutor noted the DNA match was based on a specific reference to "a 15-locus match, which both the issuing magistrate and [the] reviewing [c]ourt could take judicial notice of," and which was an "inherently reliable [and] high probability match." Moreover, the DNA match specifically included the defendant as a match to the suspect profile, rather than excluding him. The prosecutor further argued that it would be speculative to assume that the suspect DNA could have possibly belonged to more than one individual because nowhere in the officer's affidavit was there any reference to a " 'partial match' " or "multiple (i.e.: major or minor) contributors."
The trial court denied the motion to quash/traverse the search warrant and suppress evidence, ruling: "After fully reviewing the warrant and the applicable law in this matter, . . . I do believe that there [are] facts set out in the affidavit that fully support this warrant and provide probable cause to believe that there was contraband at the place to be searched . . . ."
B. Analysis
Defendant argues the trial court erred in denying his motion to quash/traverse the search warrant and suppress evidence because the officer affiant's "material" omission of random probability match statistics for the DNA match evidence rendered the warrant application "substantially misleading." We reject his contention, and find that the DNA match evidence, standing alone, was sufficient to support the magistrate's finding of probable cause to issue the search warrant.
A magistrate may issue a search warrant upon a showing of probable cause to believe contraband or evidence will be found in a particular place at the time of the search. (U.S. Const., 4th Amend.; § 1525; see Illinois v. Gates (1983) 462 U.S. 213, 238; People v. Carrington (2009) 47 Cal.4th 145, 161.) " '[T]he term "probable cause" . . . means less than evidence which would justify condemnation . . . . It imports a seizure made under circumstances which warrant suspicion.' . . . Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainty corresponding to 'probable cause' may not be helpful, it is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' [Citations.]" (Illinois v. Gates, supra, 462 U.S. at p. 235; see Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 573 ["[p]robable cause, unlike the fact itself, may be shown by evidence that would not be competent at trial"].) Moreover, because "affidavits 'are normally drafted by nonlawyers in the midst and haste of a criminal investigation[,] [t]echnical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.' [Citation.] Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of 'probable cause.' [Citation.]" (Illinois v. Gates, supra, at p. 235.) Consequently, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed. [Citation.]" (Id. at pp. 238-239.) Accordingly, as a reviewing court, we will not overturn a magistrate's determination " 'unless the supporting affidavit fails as a matter of law to support the finding of probable cause.' " (People v. Garcia (2003) 111 Cal.App.4th 715, 720.)
In support of his argument, defendant relies on case law that considers the sufficiency of DNA evidence to support a conviction after trial. (See People v. Wilson (2006) 38 Cal.4th 1237, 1246-1247.) It is well settled that "DNA evidence consists of two distinct elements: the match evidence—evidence that the defendant could be the perpetrator; and the statistical evidence—evidence that a certain number of people in the population could be the perpetrator. These differ in both purpose and effect. [¶] The purpose of the match evidence is to establish that the defendant's genetic profile resembles or 'matches' the perpetrator's genetic profile. The effect of the match evidence is to directly incriminate the defendant by establishing that he genetically matches the perpetrator and therefore could be the perpetrator. . . . Thus, the match evidence deems the defendant a possible perpetrator, but does not establish his identity as the perpetrator. [¶] The statistical evidence gives the match evidence its weight. It is an expression of the rarity of the perpetrator's profile, the size of the pool of possible perpetrators, and the likelihood of a random match with the perpetrator's profile. . . . [T]he statistical evidence informs the jury of the frequency with which the perpetrator's genetic profile occurs in the perpetrators' [sic] population (i.e., the number of people in that population whose profiles are considered to be the same as the perpetrator's profile.)[.] The effect of the statistical evidence is to indirectly incriminate the defendant by allowing the jury to infer that because the defendant is one of the few people who genetically match the perpetrator, he is likely to be the actual perpetrator. Unlike the match evidence, the statistical evidence itself does not consider or rely upon the defendant; it is a statement regarding the perpetrator (his profile and his population) and it is the same regardless of who the defendant is." (People v. Pizarro (2003) 110 Cal.App.4th 530, 541-542, fns. omitted (Pizarro).) Thus, for purposes of conviction after trial, evidence of a DNA "match is 'incomplete without an interpretation of its significance' " based on random probability match statistics. (People v. Wallace (1993) 14 Cal.App.4th 651, 660, fn. 3, quoting People v. Barney (1992) 8 Cal.App.4th 798, 822, italics added by the Wallace court.)
Pizarro was disapproved on other grounds in People v. Wilson, supra, 38 Cal.4th at pp. 1246, 1250-1251.)
Here, we are concerned only with the sufficiency of evidence necessary to support a magistrate's finding of probable cause to issue a search warrant. Defendant was identified by a "cold hit"—a match of DNA profiles found through the comparison of the DNA profile found on the mask with the DNA profiles in CODIS. " 'CODIS was established by Congress to assist in providing investigative leads for law enforcement in cases where no suspect has yet been identified, therefore a CODIS hit provides new investigative information on these cases.' [Citation.] 'CODIS was designed to compare a target DNA record against the DNA records contained in the database. Once a match is identified by the CODIS software, the laboratories involved in the match exchange information to verify the match and establish coordination between their two agencies. The match of the forensic DNA record against the DNA record in the database may be used to establish probable cause to obtain an evidentiary DNA sample from the suspect. The law enforcement agency can use this documentation to obtain a court order authorizing the collection of a known biological reference sample from the offender. The casework laboratory can then perform a DNA analysis on the known biological sample so that this analysis can be presented as evidence in court.' [Citation.]" (People v. Xiong (2013) 215 Cal.App.4th 1259, 1266-1267, fn. 4.) We therefore reject defendant's argument that the DNA match evidence was "meaningless" without the additional information of random probability match statistics. For purposes of determining whether there was probable cause, we conclude the magistrate could reasonably rely on the DNA match evidence, which demonstrated that defendant was possibly the masked perpetrator. (See U.S. v. Hinton (N.D.Ga. 2015) 113 F.Supp.3d 1277, 1294-1295 [affidavit showing defendant's DNA profile matched DNA from sample taken at crime scene established probable cause to issue search warrant]; Merriel v. Secretary (U.S. Dist. Ct., M.D. Fla., Apr. 4, 2013, No. 6:11-cv-1100-Orl-37DAB) 2013 U.S.Dist. Lexis 49019 at p. *10 ["here the DNA evidence obtained from the [victim] matched a known DNA profile in the CODIS database, thereby establishing a DNA match in this case. That match was sufficient to make Petitioner a suspect in this case and to establish probable cause to obtain a warrant to compel him to give a DNA sample"]; Brown v. State (Ga.Ct.App. 2004) 605 S.E.2d 885, 887-888 [it was unnecessary to show in the search warrant application that the state complied with the DNA statute because the fact that the DNA sample matched the defendant's DNA profile in the system established probable cause]; but see People v. Robinson (2010) 47 Cal.4th 1104, 1134 ["[f]or purposes of the Fourth Amendment, we conclude that the [John Doe] arrest warrant in question, which described the defendant [only] by his 13-loci DNA profile and included an explanation that the profile had a random match probability such that there was essentially no chance of its being duplicated in the human population except in the case of [a] genetically identical sibling, complied with the mandate of our federal Constitution that the person seized be described with particularity"].)
Accordingly, we conclude the trial court properly denied defendant's motion to quash/traverse the search warrant and suppress evidence. The magistrate here could reasonably make a finding of probable cause based on the DNA match evidence, standing alone, without random probability match statistics.
In light of our determination, we do not address defendant's additional argument that the denial of the motion to quash/traverse the search warrant and suppress evidence cannot be upheld under the "good faith" exception to the exclusionary rule, applicable where a search has been conducted "in objectively reasonable reliance on a subsequently invalidated search warrant . . . ." (United States v. Leon (1984) 468 U.S. 897, 922).
II. Defendant's Claim of Purported Judicial Bias in Case No. FCR310909
Defendant argues he is entitled to a new trial in case No. FCR310909 because the trial judge was actually biased against him as evidenced by an incident that occurred during the jury trial in that case, and a later incident that occurred during the proceedings in which he was sentenced in case No. FCR310909 and case No. FCR311648. The record shows defendant made no objection to the trial judge's comments at the jury trial or to his conduct at sentencing on the grounds of judicial bias. Nonetheless, we need not address whether defendant has forfeited his judicial bias claim or his related argument of ineffective assistance of counsel for failing to preserve the claim. An objective review of the trial judge's complained-of comments at the jury trial and conduct at sentencing, either singly or cumulatively, reveals no evidence of judicial bias.
During the jury trial in case No. FCR310909, the trial judge apparently believed that defendant had spoken to his girlfriend, Sarah Woodby, while she was being cross-examined by the prosecutor. The transcript of the trial judge's challenged statements, italicized, and, in context, are as follows:
"[Prosecutor]: . . . And what is that document?
"[Witness]: It's . . . a rental agreement, but it's for the welfare office. I never actually pay my dad any money for rent. I just wrote it so I can get . . . food stamps and . . . cash aid because they said if I didn't . . . pay rent then I couldn't get food stamps or cash aid.
"[Prosecutor]: Okay. Your Honor, should we approach?
"THE COURT: No, it's not necessary.
"[Prosecutor]: Okay. So . . . that is a rental agreement, but you're saying it's false?
"[Witness]: Yes.
"[Prosecutor]: Okay. You used it to defraud the government?
"[Defense Counsel]: Objection.
"THE COURT: What's the objection -- sir, you need to be quiet. [¶] What is the objection?
"[Defense Counsel]: Relevancy, 352.
"THE COURT: Your client is not to speak to the witness.
"[Defense Counsel]: I don't . . . Your Honor.
"[Bailiff]: That was not him. That was me.
"THE COURT: Your next question." Thereafter, the trial proceeded without further comment by either the trial judge or defense counsel.
Defendant now argues that, viewed objectively, the trial judge's comments, italicized above, support the conclusion of "a probability of actual bias." He asserts that the trial judge assumed, without actually determining, that defendant spoke to the witness. He also complains that the trial court did nothing to correct the impression it had given the jurors that defendant had misbehaved in the courtroom following the bailiff's acknowledgment that he, not defendant, had spoken to the witness. Defendant further argues that the incident during the jury trial "must be viewed" in light of the trial judge's refusal to honor the plea bargain reached by the parties in case No. FCR311648. Defendant then argues that when all the circumstances are " 'objectively considered,' " judicial bias is apparent and, constitutes "structural error" requiring a new trial in case No. FCR310909. We see no merit to defendant's arguments.
"Although 'the trial court has both the duty and the discretion to control the conduct of the trial' [citations], 'the Due Process Clause clearly requires a "fair trial in a fair tribunal," [citation], before a judge with no actual bias against the defendant or interest in the outcome of his particular case. [Citations.]' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 346-347.) However, "[t]he role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]' [Citation.]" (Id. at p. 347.)
Defendant's assertion of reversible error based on judicial bias rests on his citation to People v. Freeman (2010) 47 Cal.4th 993 (Freeman). In Freeman, our high court recognized that "judicial comments taken together can demonstrate the probability of actual bias." Defendant asks us to consider a number of cases cited by the Freeman court, which he claims support his argument—Hall v. Harker (1999) 69 Cal.App.4th 836 (Hall), In re Marriage of Iverson (1992) 11 Cal.App.4th 1495 (Iverson), Catchpole v. Brannon (1995) 36 Cal.App.4th 237 (Catchpole), and Hernandez v. Paicius (2003) 109 Cal.App.4th 452 (Paicius). However, as the Freeman court noted, the cited appellate court cases involved "a pattern of conduct by the judicial officer that rendered a fair trial impossible." (Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.) Specifically, the facts in those cases "amounted to a showing of actual bias based on comments by the judges about women (Catchpole, Iverson), lawyers (Hall) and noncitizens (Paicius) . . . ." (Ibid.) Here, the comments made by the trial judge stand in stark contrast to the conduct found to exhibit actual bias in the cases relied on by defendant. Moreover, as indicated above, when a defendant seeks relief on a theory that the trial judge's conduct " ' "transcended so far beyond the pale of judicial fairness as to render a new trial necessary," ' " he "must establish prejudice." (People v. Abel (2012) 53 Cal.4th 891, 914.) Defendant has failed to meet his burden. The record shows that the trial judge was in the midst of speaking with defense counsel when someone spoke out loud in the courtroom. Depending on where the defendant and bailiff were located, the trial court apparently, by mistake, thought it was defendant, and not the bailiff. In all events, the record fails to establish that the trial judge bore any animus towards defendant when admonishing him for speaking to the witness. Moreover, in evaluating any potential prejudice, we find it significant that defense counsel did not mention the incident either immediately after the bailiff's statement or at any time thereafter. Defense counsel's failure to bring the matter to the attention of the trial judge suggests it was not apparent to anyone in the courtroom that the trial judge's conduct had " 'transcended so far beyond the pale of judicial fairness as to render' " a fair trial impossible. (People v. Sturm (2006) 37 Cal.4th 1218, 1233.) "A reading of the record in this case does not justify the slightest inference that the trial judge in this action would not have responded to any reasonable request on [defense counsel's] part, either to withdraw any objectionable remark or to instruct the jury to disregard the same. From what we have said we do not wish to be understood as holding that [the trial judge's remarks] . . . were prejudicial to the rights of [defendant], or in any way deprived him of the right to a fair trial. . . . In our opinion, no inference unfavorable to [defendant] could reasonably be drawn . . . from any of the statements complained of." (Estate of Golden (1935) 4 Cal.2d 300, 311.) Lastly, we are confident the trial judge's comments here were not a factor in the jury's deliberations. At the beginning of the trial and in its closing instructions, the trial judge advised the jurors that they were not to "take anything that I say or do during the trial as an indication of what I think about the facts, the witnesses or what your verdict should be. Do not let bias, sympathy, prejudice . . . influence your decision." We presume the jury followed the instructions. We therefore conclude the challenged comments "simply do not rise to a due process violation . . . because, objectively considered, they do not pose ' "such a risk of actual bias or prejudgment" ' [citation]" that demonstrates defendant was deprived of a fair trial before an impartial judicial officer. (Freeman, supra, at p. 1006.)
Hall, supra, 69 Cal.App.4th 836, Iverson, supra, 11 Cal.App.4th 1495, Catchpole, supra, 36 Cal.App.4th 237, and Paicius, supra, 109 Cal.App.4th 452, were disapproved on other grounds in Freeman, supra, 47 Cal.4th at pp. 1006-1007, fn. 4.
We also see no merit to defendant's contention that the trial judge's refusal to accept a plea bargain in case No. FCR311648 buttresses his claim of judicial bias. The record shows that after the Hon. Peter B. Foor (hereafter trial judge) presided over the jury trial in case No. FCR310909, he presided over a jury trial in case No. FCR311648, which ended in a mistrial. Defendant then resolved the charges alleged in case No. FCR311648, by agreeing to plead no contest to two counts of burglary with the remaining charges and enhancement allegations to be dismissed, and a promised sentence of an aggregate term of 16 months to be served consecutively to any sentence imposed in case No. FCR310909. The plea was accepted by Hon. James F. Moelk, who secured defendant's agreement that he would be sentenced before another judge who would be bound to accept the agreement. Thereafter, a sentencing proceeding was convened on both cases before the trial judge. The trial judge, upon hearing the terms of the plea agreement in case No. FCR311648, was initially hesitant to accept that agreement because it provided, in effect, that defendant would receive no punishment for one burglary. Nonetheless, before rejecting the plea agreement, the trial judge held extensive discussions with both the trial prosecutor and defense counsel regarding the reasons for the plea agreement. The trial judge offered to handle the sentencing of the two cases separately so as to allow the district attorney's office to provide additional information to the court regarding the plea agreement. Defense counsel objected, arguing that to proceed with sentencing in case No. FCR310909 alone might adversely impact defendant if the plea agreement was not upheld and defendant was ultimately forced to withdraw his plea in case No. FCR311648. After further discussion between the trial judge and defense counsel, defense counsel indicated he understood the trial judge's concern that the effect of the bargained-for sentence was that defendant would suffer no additional time in prison for one of the burglaries. Defense counsel informed the trial judge that defendant did not want to withdraw his plea in case No. FCR311648. Instead, defendant wanted to proceed with sentencing on both cases with the understanding that, contrary to the original plea agreement, the trial judge could impose an aggregate sentence of an additional 32 months, instead of the additional 16 months that had been agreed to by the parties. After the trial judge explained defense counsel's proposed agreement on the record, defendant confirmed that he understood he could withdraw his plea in case No. FCR311648, but he wanted to proceed with sentencing on both cases under the terms articulated by his counsel and the court.
Defendant argues the trial judge showed actual bias by his refusal to accept the initial plea agreement in case No. FCR311648. According to defendant, the trial judge should have accepted the prosecutor's rationale for the plea agreement, and the trial judge's rendition of the facts underlying one of the burglaries was inaccurate. We see nothing questionable about the trial judge's refusal to accept the explanation for the plea agreement or the request for additional information from the district attorney's office regarding the plea agreement. At sentencing, the district attorney's office was represented by a prosecutor who had not been involved with either the mistrial decision or the plea agreement that had been made in case No. FCR311468. The trial judge was willing to continue the matter on case No. FCR311468 and proceed with sentencing only on case No. FCR310909. However, defendant and his counsel refused the trial judge's overture to proceed to sentencing only on one case. Moreover, a fair reading of the record indicates that the trial judge's essential objection to the plea agreement was based on his belief that defendant should be punished for the commission of three residential burglaries in light of his burglary conviction after a jury trial and his plea to two burglaries. Even if the trial judge may not have accurately remembered all the facts of each incident, we see no evidence that he refused to agree to the initial plea agreement because he was biased against defendant.
In sum, we conclude defendant's claim that judicial bias requires a new trial in case No. FCR310909 fails. The challenged conduct "simply do[es] not rise to a due process violation . . . because, objectively considered," it does not "pose ' "such a risk of actual bias or prejudgment" ' [citation]" that demonstrates defendant was deprived of a fair trial before an impartial judicial officer. (Freeman, supra, at p. 1006.)
III. Trial Court's Imposition of Consecutive Sentences in Case No. FCR310909
A. Relevant Facts
Defendant challenges the trial court's imposition of consecutive terms of imprisonment for the felony convictions of elder abuse (count three), false imprisonment (count four), and criminal threats (count five) in case No. FCR310909. At sentencing, the trial court explained its reasons for the challenged sentencing decisions, in the following manner:
The Court: "[F]or Count 1, in [case No. FCR]310909, the residential robbery, the Court will impose the upper term of six years.
"For Count 2, which is the residential burglary with a person present, this is the same factual situation, it's the same victim, it's the same residence, it's the same circumstances that are involved in that offense, I am required to stay that count and the enhancement alleged pursuant to [section] 667.5(c). Pursuant to [section] 654, the sentence will be stayed.
"For Count 3, the elder abuse, I am going to order that a separate consecutive term be imposed. . . . [I]t involves the victim being struck by this defendant, whether it was with a gun or another object. I very specifically recall that she testified she was struck with a hard object, knocked her to the floor. This is elder abuse pure and simple, a violation of [section] 368(b)(1). It's an offense that was separate from the entry with the intent to rob and the robbery itself . . . so he will receive a consecutive term, which by operation of law, must be . . . one-third the mid-term . . . .
"For the false imprisonment with violence claim, a violation of Penal Code Section 236 as alleged in Count 4, I will impose again a consecutive term because again this was entirely separate from striking the victim, it was separate from robbing the victim, taking her property. This involved handcuffing her to a chair . . . . The term which is prescribed by law again is—for a consecutive term is one-third the mid-term . . . .
"So for Count 5, which was the criminal threats, a violation of Penal Code Section 422, this is based on the defendant threatening the victim with death, . . . [and the victim's] testimony in this matter several times during this robbery the defendant coming back to her and threatening to shoot her if she didn't reveal where this pistol was because he had found the holster, and he was trying to force her to give him the pistol. Again, in the Court's judgment, this was a crime that is entirely separate and apart from taking the victim's property by force, knocking the victim down when he entered the house, handcuffing the victim to the chair when he wanted to prevent her from reaching a place of safety. But when he threatens her, he threatened . . . to shoot her; and again . . . [while] the jury did not find the arming allegations true, but in the Court's mind . . . listening to the victim when she testified in this matter, she said . . . that she was extremely frightened at that point . . . . This coming from an individual who was far, far larger and stronger and younger and apparently set on taking as much . . . of the victim's property as he could get away with. So I think this is deserving of a consecutive term as well."
B. Analysis
Defendant argues that the trial court was required to impose but stay the sentences for the convictions for elder abuse, false imprisonment, and criminal threats, under section 654, because the acts comprising those convictions were "all essential" to the residential robbery. We disagree. Under the circumstances here, the trial court could reasonably find defendant's acts of elder abuse, false imprisonment, and criminal threats were not essential to his commission of the residential robbery.
"The purpose of section 654 is to ensure that a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially one criminal act. [Citation.] Courts have devised various rules for proper application of section 654, but '[b]ecause of the many differing circumstances wherein criminal conduct involving multiple violations may be deemed to arise out of an "act or omission," there can be no universal construction which directs the proper application of section 654 in every instance.' [Citation.]" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1252.) Additionally, section 654 has not been applied to bar consecutive terms when courts have "narrowly interpreted the length of time the defendant had a specific objective, and thereby found similar but consecutive objectives permitting multiple punishment," or otherwise "found separate, although sometimes simultaneous, objectives under the facts." (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212, 1216 [Supreme Court does not question validity of multiple punishment in those cases where trial courts found "consecutive, and therefore separate, intents," or "different, if simultaneous, intents"].) "The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.) " '[W]e review the trial court's findings "in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citation.]" (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
In support of his claim of error, defendant asks us to consider cases in which the courts found that section 654 barred multiple punishment for assaultive acts committed against the victims during residential robberies. (See People v. Donohoe (1962) 200 Cal.App.2d 17, 30-32; People v. Allen (1963) 220 Cal.App.2d 796, 798-802.) However, it has been held that section 654 "cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense." (People v. Nguyen (1988) 204 Cal.App.3d 181, 191; see People v. Cleveland (2001) 87 Cal.App.4th 263, 272 [court held section 654 did not preclude separate punishment for attempted murder and robbery where act comprising attempted murder (hitting 66-year-old feeble victim with a two-by-four piece of wood rendering him unconscious, before taking radio) was so "gratuitous" that it went far beyond what was needed to accomplish the robbery]; but see People v. Mitchell (2016) 4 Cal.App.5th 349, 353-354 [court held section 654 precluded separate punishment for armed robbery and assault with deadly weapon where assault was found not to be so " 'extreme and gratuitous' " that it went beyond what was needed to accomplish robbery, distinguishing Cleveland].) In this case, the trial court reasonably determined that once defendant entered the house and saw the physical condition of the victim, defendant's acts of elder abuse, false imprisonment, and criminal threats went far beyond what was reasonably needed to accomplish his objective of robbing the residence. Even though "the crime of robbery is not actually complete until the robber 'has won his way to a place of temporary safety' . . . it cannot mean every act a robber commits before making his getaway is incidental to the robbery." (In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) Moreover, while the acts supporting the convictions for elder abuse and false imprisonment occurred closely together, "defendant should . . . not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his . . . assaultive behavior." (People v. Harrison (1989) 48 Cal.3d 321, 338 ["there is no legal or logical bar to separate punishment where, as here, each of defendant's [acts] was clearly volitional, criminal and occasioned by separate acts of force"]; see People v. Trotter (1992) 7 Cal.App.4th 363, 368 [separate punishments upheld on two assault convictions where defendant fired two shots a minute apart at the victim, as "each shot evinced a separate intent to do violence"].)
Because there is substantial evidence supporting the trial court's sentencing decisions, we conclude defendant's claim of error fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Siggins, J.