P. v. Cummings

Filed 10/29/09 P. v. Cummings CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted David Cummings of first degree murder, attempted murder, escape, and felon in possession of a firearm. Cummings appeals, arguing that the trial judges bias against his trial counsel resulted in evidentiary rulings against him which prejudiced his defense and rendered his trial fundamentally unfair. We affirm.

BACKGROUND

An information filed May 31, 2005 charged Cummings and codefendants Wendy Callandret and Justin Hull with murder in violation of Penal Code[1] section 187, subdivision (a) (count 1); attempted willful, deliberate, and premeditated murder in violation of sections 187 and 664 (count 2); escape by force in violation of section 4532, subdivision (b)(2) (count 3); and possession of a firearm by a felon in violation of section 12022, subdivision (a)(1) (count 4). The information also alleged firearm enhancements with respect to counts 1 and 2 under section 12022.53, subdivisions (b)(d), and alleged that the murder and attempted murder counts (1 and 2) were committed for the benefit of a criminal street gang, in violation of section 186.22, subdivision (b)(1)(A).

Cummings pleaded not guilty and denied the special allegations. He admitted the prior robbery conviction underlying the felon in possession of a firearm charge in count 4. After trial, the jury convicted Cummings on all counts, on count 3 finding him guilty of the lesser included offense of escape in violation of section 836.6, subdivision (b). The jury also found the gang and firearm allegations to be true. The jury acquitted Cummingss codefendant Hull of all charges, and convicted Callandret of accessory-after-the-fact to a felony in violation of section 32, finding true a gang enhancement under section 186.22, subdivision (b)(1)(A).

The trial court sentenced Cummings to 25 years to life for murder on count 1, plus a consecutive term of 25 years to life for the firearm enhancement; a consecutive life term for attempted murder on count 2, plus an additional consecutive term of 25 years to life for the firearm enhancement; a consecutive term of one year for escape, count 3; and an upper term of three years on count 4, plus an additional consecutive term of four years for the gang enhancement. The court ordered Cummings to pay a $10,000 restitution fine under section 1202.4 subdivision (b), and imposed and stayed a $10,000 parole revocation fine. Cummings was credited with 1,076 days of presentence custody.

FACTS

I. The Prosecutions Case

A. The shooting

On January 6, 2005 at 2:50 p.m., Erica Maris accepted a ride home from Southwest College in Los Angeles from a fellow student and friend, Wendy Callandret. Callandret had told Maris that she was affiliated with the Rolling 60s, a Crips street gang, and that she used the moniker Lady Jinky Blue, although Maris had never seen Callandret act or dress like a gang member. Maris did not belong to a gang, although she socialized with some members of the Crips and Bloods gangs.

Callandret, who drove a white four-door car, told Maris she was picking up her boyfriend Rome before driving Maris home. Callandret drove Maris to 122th Street and Denker in Los Angeles, where she pulled over. Maris got out of the front seat and moved into the drivers side back seat. Callandret introduced her to Rome, whom Maris identified as Cummings.

Callandret opened the trunk of the car and Cummings placed something he was carrying into the trunk. Cummings got into the front passenger seat, and another man, Acorn, whom Maris identified as codefendant Hull, got into the back seat with Maris. Cummings asked Callandret what Maris was doing in the car, and Callandret told him she was taking Maris home. Cummings was wearing baggy clothing, a black hoodie and jean shorts.

Maris saw three other people come out of the house, two men and a woman carrying a baby. They got into a black four-door car parked behind Callandrets car. One of the men, who identified himself as Chaos, approached Callandrets car, briefly got into the back seat, and asked Maris for her phone number. When she declined, he left and got into the back seat of the black car.

Callandret drove up Western with the black car following her. Cummings told Callandret to turn on to 85th; by this time, the black car was in front. Cummings told Callandret to follow the black car. Cummings and Hull were talking on cell phones in the chirp (walkie-talkie) mode as Callandret drove.

Callandret drove down 85th, turned onto Denker, and circled the block. Maris saw two men standing on the sidewalk in front of a house on 85th, one wearing an orange shirt. Over one of the chirp phones, Maris heard someone say there they go and turn around. Cummings told Callandret to pull over, and said hed be right back. Hull told her to leave the car in drive and keep the door open. The black car also pulled over and stopped, facing the opposite direction. Cummings walked around the corner onto 85th, and Maris heard three or four gun shots.

Gregory Dixon, 38 years old, was standing on the sidewalk in front of his house at 1622 West 85th near Denker; he wore brown sweats and a fluorescent orange work jacket from his railroad job. His younger brother, Berley, home from college and staying with Dixons mother three houses down the street, was standing on the lawn. Neither Dixon nor Berley belonged to a gang, and Dixon knew of no neighborhood gang activity in the four or five years he had lived there. Dixon saw a man near the corner of 85th and Denker walking toward his house. A mail carrier walking in the opposite direction handed Dixon the mail, and while Dixon was looking at it he heard gunshots. Dixon turned around in a circle, saw Berley falling, and tried to go to his brother. He couldnt move, and realized he had been shot in both legs. Dixon looked up and saw Cummings from 10 to 15 yards away; they stared at each other and Cummings turned and walked back toward Denker. Cummings had his hand in the waistband of his sweatshirt.

Dixon had five gunshot wounds in his upper thighs. Berley died of six gunshot wounds. The mail carrier, Beverly Robinson, testified that just before she gave Dixon the mail she had passed a young man wearing a dark blue hooded sweatshirt, and that after she passed Dixon she heard gunshots and saw the young man running towards Denker. A resident, James Gavin, looked out his window onto Denker after he heard gunshots. He saw a man walking toward Manchester wearing a black hooded sweatshirt and baggy clothing. The man got into a white car similar to photos of Callandrets car which pulled off immediately, with a female in the drivers seat. A bicyclist on Denker, Richard Smith, heard the gunshots and saw a man run around the corner onto Denker from 85th, get into a white car, and speed away.

Maris saw Cummings walking fast back to the car. She did not see a weapon. He got in through the open front passenger door, turned to Maris and said she dont know nothin and didnt see nothin. Cummings told Callandret to drive, and she headed toward Manchester. The black car moved too.

Cummings was excited, got on the phone, and kept saying something about six-0s, and that they dont even know that their homie had got shot, or got got or something like that. Hull said, We should get them first.

Callandet drove to a house at 75th and Crenshaw, where everyone got out of the car and followed Cummings into the house. Cummings said, This is Rollin 60s Crip, both while Callandet was driving and after they entered the house. Maris, who was frightened, sat on the couch. There were three other people in the house who were friends of Cummings. At some point, Cummings said he had shot somebody.

Cummings said he was hungry, and Callandret and Maris left to get some food. Maris told Callandret she wanted to go home, but did not talk about the shooting because Cummings was Callandrets boyfriend. They brought the food back and stayed another half-hour. Chaos was there, along with Cummings, Hull, and the three others. Somebody said something about a homie having been killed on the roof at 75th and Crenshaw. Maris saw a shotgun in another room of the house. Callandret drove Maris home at about 6 p.m., with Cummings and Chaos in the car.

B. The investigation

Maris was afraid to call the police, thinking she would be arrested because she had been in the car, and because she feared for her life after Cummings told her she knew nothing and saw nothing. Five days later, on January 11, Maris saw a television report about the shooting, became very anxious, and told a friend, Eric Henderson, then employed as a deputy sheriff in Tulare County, what had happened. Henderson drove down and took her to the police department later that day, where she made a report to Los Angeles Police Department (LAPD) Detective John Radtke.

Maris told Detective Radtke what had happened, and identified Cummings, Acorn, and Callandret from six-pack arrays of photographs. She also identified a photograph of Callandrets car. She took Detective Radtke to the house on 75th Street. A Rolling 60s gang member, Jamie Bowe, had been killed on the roof of the house on December 18, 2004, with a funeral on December 28. Later, at trial, Maris explained that she had been afraid to testify because she was afraid of Rolling 60s gang members who called her a snitch and whose threats caused her to move twice. Maris also received a call from someone identifying himself as Rome who said she didnt have to worry about the police because [t]hey think its somebody else and that Maris needed to keep her mouth shut.

The police arrested Cummings on January 12. The next day, January 13, the police showed Dixon a six-pack array of photos at Dixons home, and Dixon identified Cummingss photo. After he identified Cummings as the shooter, Dixons wife Andrea explained that Cummingss family knew Dixons family. Dixon did not know Cummings before the shooting.

Cummingss fingerprints were found on the exterior of Callandrets car, outside the drivers side front door and outside the drivers side rear door. Fifteen cartridge cases, two expended bullets, and a bullet fragment were found at the crime scene, all from nine-millimeter Luger ammunition and all fired from the same gun. No weapon was recovered.

C. Gang evidence

Evidence of Cummingss gang affiliation included his more than 20 tattoos, most related to the Rolling 60s gang, one stating Rome 3 and another stating S.I.P. Baby Bolt. Hull had a gang tattoo commemorating Baby Bolt Da House. Bolt Da House was Jamie Bowes gang moniker. Gang paraphernalia and Rolling 60s photographs, including some in which Cummings appeared, were found in Bowes house.

The prosecutions gang expert, LAPD Officer Aron Algren, testified that the Rolling 60s gang had 2,000 to 3,000 members, with criminal activities including robberies, narcotics sales, and crimes involving rival gangs including Eight Trey Gangsters. The scene of the shooting in this case was in the heart of Eight Trey Gangsters territory. Respect and reputation were very important in gang culture and if the gang did not retaliate for the shooting of a Rolling 60s member, it would damage the gangs reputation. Bowe was a Rolling 60s member, and his home was a known gang hangout. In response to a hypothetical, Officer Algren opined that the shooting was committed in association with and in furtherance of the Rolling 60s gang.

D. The escape

On January 13, 2005, Los Angeles Police Officers David Siurek and Tom Redshaw were transporting Cummings from one jail to another. Officer Redshaw handcuffed Cummings, placed him in the back seat of the police car, seatbelted him, and locked the door. Officer Redshaw sat in the back seat with Cummings while Officer Siurek drove on the 110 Freeway. Officer Siurek heard Officer Redshaw call out his name, looked in his rearview mirror, and was kicked in the shoulder. The car veered toward the carpool lane and Officer Siurek lost control. Cummings and Officer Redshaw fell out of the rear passenger door as the car was still moving. After they left the police car, an oncoming car struck the front drivers side.

Cummings ran across the freeway, followed by the officers; only one hand was handcuffed. Cummings reached the opposite side of the freeway, climbed over the edge, and dropped down, running westbound underneath the freeway. He was detained by other officers in the Coliseum parking lot.

II. Defense evidence

Cummingss mother testified that Cummings lived with her in Hollywood, although they used to live near 75th and Crenshaw, where Cummings and Bowe had been friends. Cummings was working for a railroad company. She had known Dixons wife for 24 years.

Detective Grace Garcia, who interviewed Dixon on January 10, testified that Dixon said he had not seen the shooter close enough to see eyes and eye color or details about his nose, and that Dixon had described the shooter as having no facial hair and as a very small guy. She also testified that on January 13, when she showed Dixon the six-pack from which Dixon identified Cummings, Dixon told her he recognized the photo by the eyes and the mouth.

Detective Radtke testified that Dixons wife was in the room at the time of Dixons photo identification, and that Detective Radkte then told Dixon that the photograph was of Cummings. Dixons wife told the officers that they knew Cummingss family. Detective Radtke told Dixon that the suspects were on a mission in an Eight Trey neighborhood and had randomly selected Dixon and his brother. Dixon then signed the photo identification statement. Detective Radtke acknowledged that under LAPD policy, witnesses should be separated from each other during an identification and should not be told whether they selected the photograph of the suspect in custody. He also stated that he did not believe that statements made afterwards would taint the identification.

Steve Strong, a former LAPD gang officer, gave his opinion that the facts of this case did not support a conclusion that the shooting was gang-related. Gang tattoos, the use of gang signs, attending a gang members funeral, and hanging out with gang members did not mean that a person is an active gang member. Not all gang members commit crimes, and it was unusual for gang members to commit crimes with strangers in the car or with children present.

An expert on eyewitness testimony, Mitchell Eisen, testified that memory does not work like a camera, and that individuals will fill in memory gaps with inferences, accurate or not. A person may confuse a familiar face associated with an event with the perpetrators face, and will be more confident in an identification if it is confirmed that he made the right choice.

III. Closing arguments

The prosecution argued that the evidence showed just your ordinary and unfortunately very typical gang murder. Maris was a special witness; she was in the car before the shooting, and her testimony was corroborated by other witnesses and by physical evidence. She had no motivation to lie, and testified in spite of threats. Her testimony was consistent on all the important facts. Further, Dixon identified Cummings as the shooter. The prosecutor identified the motive of the shooting as retaliation against Eight Trey Gangsters, who Cummings believed to have committed Bowes murder. Although Bowes murder was not gang-related, it was what the Rolling 60s believed that mattered. Cummings had a tattoo commemorating Bowes death, and there was other evidence that showed Bowe was involved in the gang using the name Baby Bolt Da House. Evidence revealed that Cummings was an active Rolling 60s member known as Rome, and his tattoos established that he was a devoted gang member. Cummingss escape evidenced consciousness of guilt. All the charges were supported by the evidence, and there was ample evidence that the defendants intended to promote and assist in criminal conduct by gang members: It was for their gang, it was for their gang member, it was for the Rollin 60s.

Cummingss counsel argued that the prosecutions case was a house of cards. She argued that the only eyewitness who identified Cummings as the shooter was Dixon, and that his identification of Cummings in the six-pack photo array was inconsistent with his earlier description of the shooter. Dixons identification was also unreliable given his familys prior acquaintance with Cummingss family and the LAPDs manipulation. Eyewitness identification can be unreliable. Maris was a snitch whose testimony was motivated by her desire to protect herself from charges of attempted murder and murder. Cummingss counsel argued that the shooting was not gang-related, because there were no colors displayed, no signs thrown, and no statements on the street. Cummingss tattoos did not show he was an active gang member. His commemorative tattoo for Bowe was a way of mourning a loved one. Cummings did not use violence to exit the police car, and was not handcuffed or belted in properly. LAPD had a pattern of hiding evidence and manipulating witnesses.

In rebuttal, the prosecution argued that the tattoos did show Cummingss active gang membership. The motive for the shooting was a gang motive. Maris was a reliable witness even if she was protecting herself. There was ample evidence to convict Cummings.

DISCUSSION

I. The record is replete with conflict between trial counsel and the trial court.

Cummings argues that throughout the trial, intemperate and contentious interaction between his trial counsel and the trial judge resulted in evidentiary rulings which harmed his defense, violated his right to due process, and made his trial fundamentally unfair. Although he admits that his lawyer behaved inappropriately, he contends that the trial judge was prejudiced against him as a result.

Many acrimonious exchanges took place between Cummingss counsel (hereinafter counsel) and the trial court. We summarize them as follows.

A. Discovery issues related to the escape count

Early in the trial, Cummingss mother and Dixons mother had argued loudly in the hallway outside the courtroom. The trial court inquired into the incident, and Cummingss mother told the court that she had filed a complaint against the LAPD about Cummingss treatment.

The next day, counsel told the court that despite the billions and billions of conferences with my client in jail, she had just learned that following the complaint, the LAPD had conducted an internal affairs investigation into Cummingss escape. The trial court denied the request to order disclosure of the investigation at this late date. When counsel continued to raise the discovery issue, the court commented that she leave[s] everything to the last minute, and counsel claimed she had been hamstrung and shut down. While cross-examining Officer Siurek, counsel again complained in a sidebar that it was outrageous that she had not had complete discovery, and stated that Officer Siurek had testified that there were photographs of his injuries. The trial court told counsel to Stop lying. He didnt say whether he knew there were photographs. Counsel repeated that there were photographs. Shortly before, Officer Siurek had testified that he didnt know whether photographs were taken. The trial court also had admonished the prosecutor for failing to obtain traffic collision and hospital reports, and the prosecutor asked the court not to yell at me in front of the jury.

Later, counsel also requested police reports, traffic reports, medical records, photographs, any internal investigation, results, and any officers statements. The trial court reminded counsel that personnel reports would only be discoverable through a Pitchess motion, and counsel said, I believe I did four Pitchess in this case. The court said it was aware of the motions counsel had filed and that counsel did not file a Pitchess motion, and counsel said, Thats correct. The court ordered a recess to obtain the accident and hospital reports.

At the subsequent hearing outside the presence of the jury, counsel made inaccurate statements about what was in the accident report. When she pointed out how Siureks testimony was inconsistent with the report, the court told her If I were you I would be frothing at the mouth . . . putting my hands together and so ready to take advantage of all this. When the court later stated, The thing that concerns me is that you tend to make representations that are not atnot consistent with the material that you have, counsel replied, Im going to take umbrage at that. I am an officer of the court. Ive been a public defender 14 plus years. Ive never knowingly made a misrepresentation to the court. After counsel continued to defend herself at length and argued that the prosecution was attacking her to kill the messenger, the court stated, the violins are getting so loud its difficult to hear you, and added, You know, I agree that you are in a difficult position; however, I dont think you have to misrepresent yourself.

After further discussion, Cummingss counsel said, Its not about me. Its about whether David Cummings has . . . effective assistance of a lawyer and whether he is getting a fair trial, . . . and it is not for my lack of asking for trying to get any of this information. The trial court stated that it was concerned that the police had supposedly taken a statement from Cummings after the escape, and ordered the prosecutor to look into it.

The prosecutor informed the court the next day (again out of the jurys presence) that LAPD Sergeant Vershueren had taken a statement from Cummings, who had also made a statement to another officer in connection with an internal affairs investigation. A city attorney brought in a copy of the internal affairs investigation, and the court reviewed the records in camera. The court later ordered the prosecutor to turn over certain items. Counsel asked for sanctions and hearings to get to the bottom of this, and the court agreed to give an instruction on late discovery but denied the request for a hearing. Counsel asked for a dismissal and the court stated,Denied.

Counsel had claimed that in the redacted report Cummings says that he did nothe did not strike the officers. The prosecution pointed out that no such statement appeared in the report, and counsel replied, Theres no mention of striking the officers, so as a result again Im inferring he did not admit to striking the officer. The trial court rejoined: You know, when youre quoting or acting like youre quoting from a document, to then make up, which is essentially the third time that youve done this, where you claim that theres something in a document that you have in front of you and then its not there, that is a misrepresentation and as an officer of the court you shouldnt be engaging with that. Counsel responded that the court was accusing her of lying and I resent the personalizing of this case. In admonishing both counsel and the prosecutor that it wanted to proceed with the giving of evidence, the court repeatedly told counsel, who continued to argue, to have a seat.

Counsel later learned that Officer Algren, the prosecutions gang expert, had interviewed Cummings after the escape. Officer Algren admitted he had done so without Mirandizing Cummings, and the trial court responded, What the heck is wrong with you? [] . . . [] Hes in custody and youre interviewing him? [] . . . [] You cant use that. What planet do you live on? Counsel asked for an Evidence Code section 402 hearing on the right to counsel violation, and the court denied the request.

There was continued controversy about the interviews in the LAPD internal affairs investigation of the escape. Eventually, counsel received a tape of Cummingss statement to internal affairs officers, although Cummingss earlier interview with Sergeant Vershueren had been lost. The court ruled that the prosecution could not use Cummingss statement to Sergeant Vershueren, and when counsel asked for a hearing, the court stated: the People cant use the tape and neither can you. So the fact that its not here makes no difference. Counsel again argued that the tape was exculpatory and the court said, You know what, I dont care, and denied counsels request for a dismissal.

Counsel later asked Officer Siurek, Did Sergeant Vershueren tell you he had interviewed David Cummings? The prosecutor objected, and in a sidebar the trial court told counsel she could not use Cummingss statements because they were hearsay and irrelevant. Counsel insisted that she had a good faith basis to continue, and the court stated: No, she does not have a good faith basis. Counsel retorted: You guys dont think I have a good faith basis for anything, that is clear. The record is really clear on that. The standards shift depending on who the speaker is. [] So I understand thats the game that were playing here, but I can ask questions where I have a got [sic] good faith basis and we do have a dispute about whether they claimed he was head butted, whether they claimed he fell out of the car, whether they claimed he was kicked, whether they claimed he was struck. Those are consistently in all the reports. We will get those officers that have those statements, but right now I should be able to ask the officer in anticipation of their testimony.

The prosecutor repeated that counsel had no good faith basis when she has listened to her clients tape and she knows the statements her client has made and is still asking those questions in bad faith. The court said, [t]his is just a continuation of a series of misrepresentations that [counsel] has made throughout this case to me, and gave an example. Counsel then stated: I want a hearing on this. Im done with this. I want a hearing on this. Ive never had this experience. Misrecollecting testimony is not misleading or lying. Both the court and counsel have done it and no one has accused them of lying, but if I misrecollect despite the fact that Im getting four hours of sleep a night and working six days a week, somehow Im lying . . . . [] Personal bias is outrageous. Its outrageous, the treatment Ive received in here. We are not getting a fair trial. I dont know what the problem is. The court responded, the problem is that you have lied to me repeatedly, and counsel said, I have not and Im asking for a hearing on that issue. The court denied the request.

Later, when counsel cross-examined Officer Redshaw about the escape, counsel again tried to elicit whether he had spoken to Cummings. The court excluded the questions and denied counsels request to take a recess and contact her appellate department. At the end of her cross-examination, counsel stated, Given the courts rulings, I have no further cross at this time.

B. The gang allegation

In a pretrial hearing, counsel requested discovery of the LAPD murder book in Jamie Bowes case. The prosecution opposed the request because Bowes murder was not gang-related, explaining that the issue was what the defendants believed about Bowes murder, not what actually happened. Officer Algren told the court that he had several conversations with Rolling 60s gang members (although he couldnt give you dates times or even persons) who said that the Rolling 60s believed that Eight Trey Gangsters members were responsible for Bowes murder. Even without the retaliation motive, this would still be a pretty clear gang crime given the 25-year feud between the Rolling 60s and Eight Trey Gangsters. The trial court ruled that the Bowe murder book would not be disclosed.

Before opening statements, when the prosecutor stated that she intended to use Algrens statements about the conversations he had with gang members, the court responded: Thats not going to come in. [] . . . [] [Y]oure not going to get some vague statement that the 60s believed that 8 Trey Gangster Crips committed this murder [Bowes] and not attribute it to anybody, not attribute any date. Theres no way thats coming in. The prosecutor explained that there was other evidence, including Mariss testimony, that the motive for the shooting was retaliatory, adding: the People have always conceded, your honor, that [Bowe] was not killed by 8 Trey Gangster Crips and that is the reason why the murder book is not relevant. I will stipulate to that. . . . But other than that, the People have never indicated that we were not going to use this as the motive. We are conceding and we will stipulate that it wasnt gang-related factually, but that has nothing to do with the state of mind of the defendants and their motive for going and doing this killing . . . .

Cummingss counsel stated that she wanted to introduce evidence, including the murder book, to show that the prosecution expert had changed his theory about the motive for the murder from retaliation for Bowes murder to a general gang rivalry. Counsel argued that this went to the weight of the gang experts opinion and the strength of the evidence on the gang enhancement count. She wanted to expose all this to the light of day. The court ruled: Im going to preclude the prosecution from using this Jamie Bowe information and Im going to preclude [counsel] from presenting it and youre going to be limited to the experts testimony that its just a general rivalry between these two gangs, period. Thats it. You didnt want the murder book turned over, it wasnt turned over, thats it. The court went on to state that, without the murder book, the prosecution would be allowed to introduce evidence that the defendants believed that Bowe was killed by a rival gang, but that it had a real big problem with allowing Office Algren to testify that he heard from unspecified people on unspecified dates that the motive was retaliatory.

Neither side mentioned Bowe in the opening statements. On the day of Officer Algrens testimony, the court agreed that as a gang expert he could rely on hearsay in support of his opinions, but the hearsay had to be reliable and competent and I would not allow him to testify to information which is unsubstantiated as to source and date. Officer Algren gave his opinion that the shooting benefitted the Rolling 60s criminal gang, because all but one of the participants were gang members as shown by tattoos and other evidence, after the shootings they went to a location which was a known hangout where one of their homies was killed, and [t]his is part of an ongoing feud between this and another gang and for one perceiving [sic] justice; namely, the murder of their homie or their friend which they memorialize with SIP tattoos.

Counsel asked, [I]snt it true that we had a hearing in this courtroom during the pendency of this case in which you testified that you were not going to use the homicide of Jamie Bowe as a motivationfor the gang motivation in this case for the killing of Burley Dixon and the shooting of Gregory Dixon? The prosecutor objected and asked for a sidebar. The court stated, [t]his is totally misstating what happened at that hearing and there was no commitment made by the witness or by the D.A. that that was not going to be part of the evidence in this case. The transcript of the hearing merely showed the courts ruling that the murder book of that Jamie Bowe killing would not be turned over.

Cross-examination resumed, and Officer Algren testified that his opinion that the defendants motivation for the shooting was to retaliate for Jamie Bowes murder was based on the defendants documented membership in the Rolling 60s gang; the gang tattoos memorializing Baby Bolt and the photos of Hull and Cummings at Bowes funeral; gang paraphernalia and photographs of Bowe; and the return to Bowes house after the shooting.

Counsel then asked: I am saying, taking out Miss Maris claims, what are the other factors upon which you base your opinion? Officer Algren answered that an obvious one was that Bowe, a Rolling 60s member, was killed for whatever reason. Members of that gang who were his homeboys or his friends believed it was Eight Trey Gangsters for whatever reason. And there is an ongoing thirty-plus year feud between these two gangs that have resulted in the murders of probably hundreds of individuals over that time period. [] They believe that it is Eight Trey Gangsters. And they go to put in work in that hood, in that rival hood. They may not even have a good reason to believe that it is Eight Trey Gangsters, but simply the fact that somebody gets killed in their hood, obviously to them it is going to be a gang shooting, and they are going to go hit rival hoods. . . . [I]n this particular instance, for whatever reason, they felt it was Eight Trey Gangsters, and thats where they went to do their mission.

Counsel continued: What is the basis of your opinion that at the time of January 6, 2005, when these shootings took place, the Sixties were of the opinion that the killing of Jamie Bowe had something to do with Eight Trey? What is the basis of your opinion, for that portion of your opinion? The court said, You can answer that, Officer. Callandrets counsel objected, That may call for hearsay, and Cummings counsel stated, Well, I am not asking for hearsay. The court stated: Overruled. You may answer.

Officer Algren said: Part of the basis for that is simply the fact that they went to Eight Trey Gangsters to put in work. And I am inferring, based upon their tattoos, the loss of their friend, that they believe that Eight Trey Gangsters were responsible, and thats why they are going to do the shooting. Part At that moment, counsel said, Okay, let me stop you. The prosecutor responded, Your honor, I would object and let him finish his question. The court said: I dont think he was finished yet. Was there something else that you were basing that on? Officer Algren answered, Yes. The court asked, What is that? and Algren answered, The other basis is that I spoke with Rolling 60 gang members; I dont remember the names, dates and times Counsel interrupted Officer Algren, saying, I will object to this because I know we are not going into hearsay. The court rejoined: Overruled. You asked the question, and he gets to answer it. Counsel responded: I said the nonhearsay basis for his opinion, or thats substantiated. I did not elicit general, unsubstantiated hearsay for this answer, your honor. The court continued, You can answer the question, Officer. Counsel again interjected: I object to the courts characterization of the information that I sought. I did not seek any hearsay that cannot be substantiated. The court knows it is not supposed to be used in a caseand especially a case like this. The court replied: you asked the question, and the officer gets to answer it. Go ahead, Officer. Officer Algren answered, I spoke with unknown Rolling 60 gang members after Jamie Bowe was killed who basically told me they thought Eight Trey Gangsters did the shooting.

Later, during a sidebar, codefendants counsel complained about the open-endedness of Cummingss counsels questioning: [I]f counsel opens the door to something, I only want that it pertain to her client, not as to mine. The court warned counsel: If you ask open-ended questions, you are going to get everything and the kitchen sink. [] . . . [] You asked an open-ended question that elicited the information. . . .  The officer did not offer it on direct; you brought it out.

Before the prosecution rested, counsel stated (outside the presence of the jury) during a discussion of her witness list that she might call people from Bowes neighborhood to testify what people were saying at the time of Bowes murder. The court stated, I can tell you thats not going to come in. Counsel rejoined: Not with the courts ruling, but, you know, it will just get looked at like every single other one. The court responded, You know, [counsel], youre going to be lucky if you dont join your client in custody by the end of this trial with your attitude and your disrespect to me. Counsel replied, I certainly understand thats an issue here.

C. The scope of the defense case

a. Denial of a police practices expert

During the prosecutions case, counsel attempted to cross-examine Detective Radtke about issues related to the LAPDs investigation, and the court sustained prosecution objections on hearsay and relevance grounds. During a sidebar, counsel stated that she wanted to elicit evidence on the quality and integrity of this case to determine whether this is a righteous case or not and whether David Cummings is really the suspect. The court responded, you may be getting into certain things, but youre not going to get into lots of things. After counsel replied, Im going to fight you, your honor; the court answered, Well, you can fight me, but youre not putting the LAPD on trial.

During the defense case, counsel sought to call Tim Williams, a former LAPD supervisor, as an expert witness on police practices, to testify on the police mishandling of Maris as a witness and of Dixons photo identification. The court allowed an eyewitness expert, but not the LAPD expert; when counsel stated, there is a pattern and practice of hiding of evidence that points to innocence with respect to Mr. Cummings. I need a police practices expert to be able to talk about the court interjected, Denied. When counsel continued to argue, the court stated: Stop with the speeches. Save it for final argument.

b. Impeachment of Dixon

Counsel attempted to ask Detective Garcia, who had interviewed Dixon while he was in the hospital, about Dixons statements; the court sustained hearsay objections by the prosecution. In a sidebar, counsel stated that the evidence was admissible as prior inconsistent statements, and the court rejoined that she had failed to confront Dixon with the transcript of the hospital interview, and you are either going to do this the way the Evidence Code requires, or you are not going to do it. Counsel argued: You are mischaracterizing what I am trying to do. This is outrageous. This is classic inconsistent statements. And the court is, again, shutting us down . . . . The trial court explained that the references counsel made to the record did not support her argument and were a mischaracterization of whats contained here. Counsel then rejoined: I object to the court doing this. I am again asking for a hearing on whether I am making misrepresentations. . . . [D]oes anybody else get accused of being a liar under these circumstances? No. Just me. The court replied, No one else other than you has made misrepresentations to me, adding that the page in front of the court to which counsel referred doesnt say what you say it says. After the prosecutor directed the court to the correct page, counsel asked: What is the big deal? . . . I am sorry, I am doing the best I can. There are not enough hours in the day for me to do everything I need to do in this case. The court responded, this is so incredibly unprofessional.

During a sidebar shortly thereafter, counsel objected to giggling or cackling from the D.A., adding that she never engaged in such behavior. The court said, dont get me started and complained about counsels very sarcastic tone of voice, to which counsel responded, the courts tone of voice is dismissive, condescending, rude. The court has created an environment where it is almost impossible for me to work because of the personal attacks and the venom in the tone that is directed to me. The court answered, if you hadnt lied to me about five or six times during this trial, there would be a better tone. Counsel asked for specific incidents of lying, and the court responded, They are all in the transcripts. Counsel then complained that she was the lightning rod for the courts anger and frustration, that the rulings have been one-sided and an expression of personal antipathy towards me on the part of this court. And it has existed from almost the first day that I walked in and started seeking discovery in this case.

The following exchange occurred:

THE COURT: I will make this comment to you. You have an attitude that the end justifies the means and that you will do anything, including sacrificing your integrity, which I feel you have done repeatedly in this case, for the benefit of your client. And that is not a good way to conduct oneself.

COUNSEL: That is an absolutely outrageous statement. I did not go to law school for all those years and work this career all those years to sacrifice my career for anybody. But am I going to fight for a client? Absolutely. And am I going to be cowed or bullied by personal attacks or immature, unprofessional behavior? Absolutely not.

Am I seeking a mistrial under these circumstances? Absolutely not because I want the courts of appeal to rule and review all of the rulings and the behavior of the deputy D.A. in this case and this particular bench officer.

THE COURT: And I will be happy for them to review this, [counsel].

COUNSEL: As will I.

THE COURT: Ecstatic.

COUNSEL: As will I.

c. Defense discovery

During a discussion outside the presence of the jury about whether counsel could call Cummingss friend, Roy Jones, as a witness, the court asked whether discovery had been provided as to Jones. Counsel replied she had not turned anything over to the prosecution about Jones because she did not have any written reports from her investigator, who was behind in his paperwork. The court asked, Do you think it might be a ploy on your part so you dont have to turn over any discovery to the prosecution? After complaining that there was an uh-huh from the audience, so now we have the audience also taking part in the disparaging of me and with the court, again just leaping to the most cynical construct instead of asking me facts, counsel explained that she had called Jones late the night before, had spoken to him, and he was considering coming in to testify. After noting that counsel had not turned over any discovery to the prosecution, the court asked counsel to turn over a copy of her handwritten notes, and noted, This discovery is supposed to have been completed thirty days prior to trial. Counsel responded: Well, that applies to the prosecution as well. So here we go again with another little hatefest party on some irrelevant issue where the courtyou know, when we find taped statements of my client that are exculpatory, thats no big deal. Thats no big deal at all, and not even a comment. The court rejoined: [Counsel], again, your sarcasm is offensive. And the reason why the taped statement [sic] of your client are of no moment to this case is because the prosecution is not able to use those against your client in anyway whatsoever.

The next day, outside the presence of the jury, the parties discussed the defense gang expert. The prosecutor stated that she had just spoken to the expert and he had told her that he had spoken to witnesses with the defense investigator a year ago, without taking notes, although the investigator did conduct some interviews. This was the first the prosecutor had heard of any interviews. The court said: No, because [counsel] doesnt comply with 1054, and she hasnt done it in this case. She hasnt turned anything over to you. Counsel represented that her experts testimony was not really regarding personal interviews and the prosecutor responded that the expert had told her he was going to testify that the crime was not gang motivated because he talked to people in the neighborhood, interviews hes conducted that I have never heard about until this morning. Counsel retorted: Excuse me. Even Mr. Gregory Dixon said on the stand that hes never had, never seen 8 Trey activity in his neighborhood. This is not in dispute. These are the persons identified by the people in their murder book and their information. And Mr. Dixon testified to that fact directly in this case and in his cross in this case. This is not evidence outside the case. This is simply evidence that [the expert] is aware of. The following ensued:

THE COURT: You know, [counsel], once again, you are apparently misrepresenting things. This is about the sixth time you have lied to the court.

COUNSEL: Again, the court is characterizing an offer of proof by the defense for which the court has no means to evaluate other than [the prosecutors] bald assertions and is concluding Ive lied which is just further evidence of the courts antipathy and bias towards myself.

THE COURT: I have never had an attorney lie to me as many times in a case

COUNSEL: I have never had a judge call me a liar even in my entire career. And this court has known me from the beginning of my career when we were on the third floor working when I was a baby 14 years ago.

Theres no judge in the building that can tell the court of an instance in which I made a material misrepresentation or lied. There are certainly judges in the building that would be able to tell the court that in discussing testimony in a long trial, Ive misrecalled as has counsel and has the bench in this case.

So I am again objecting to the characterization of me being a liar and I am asking the court for a hearing as to whether or not I have lied. I am entitled to it and I get a finding to the bar adverse to [the prosecutor] and you if you cannot prove it. So these are serious accusations to be calling me a liar. I am not a liar.

And you know, the court especially concluding all these things in light of the discovery violations by the people and no remedy whatsoever so far granted to the defense is only further evidence of the uneven handed way in which Mr. Cummings and his counsel have been treated through the pendency of this litigation.

From the day I entered this courtroom I have received nothing but hostility and obstruction from this court that has continued through the trial.

THE COURT: Stop your speeches. You have turned over no discovery on this to the prosecution.

COUNSEL: Your honor, cite to me one instance of playingme playing games when weve had findings that the People have hid taped statements of my client

THE COURT: Stop making speeches.

COUNSEL: that are exculpatory.

THE COURT: Stop now. You havent turned over one item of discovery in this case. Not one.

COUNSEL: What are you talking about? Ive not been able to get discovery, number one in this case. I filed three Pitchess motion [sic] on Sheriff Henderson and THE COURT: Stop. Im talking about your discovery.

After some further discussion, the court ruled that the defense expert could not testify that he was basing his opinion on any of the statements not disclosed to the prosecutor. Nevertheless, the issue resurfaced during the experts testimony, and the court explained, And you know how all this really could be settled in the way its supposed to be settled under 1054 is if your experts write a report and those reports are turned over 30 days prior to trial. Counsel responded: Your Honor, for the court to be saying that to the defense in this case with all the things that we have discovered has happened The court interjected, Stop with the speeches. When counsel persisted in focusing on the prosecutors shenanigans the court stated: You know, every time I tell you something, you say what the prosecution did or didnt do, which weve talked about at length. And youre going to get a jury instruction if you frame one or suggest one, and I mentioned that a long time ago in this case. You have not provided me anything. Counsel then accused the prosecutor of lying to the court, acting in bad faith, and hiding evidence from the defense. The court attempted without success to end the discussion (No more speeches, please). Counsel went on: The court is treating the defense in an unfair and unevenhanded fashion. And the court is buying the poison and the garbage fed to it on a daily basis by misrepresentations of [the prosecutor] and this hearing is an example of that.

II. Cummings has forfeited his claim of judicial bias.

Cummings argues that these angry exchanges between his trial counsel and the trial court show judicial bias against him, and that as a result of the bias the trial court made rulings against the defense. Although she made angry and intemperate statements to the trial court, however, Cummingss trial counsel never requested that the trial court recuse itself. Counsel never sought disqualification or made any effort to comply with Code of Civil Procedure section 170.3, which provides the procedure to challenge a judges qualification to preside over further proceedings once the judge refuses to disqualify himself or herself. Instead, counsel continued with Cummingss trial, asking only for a hearing regarding whether she had lied to the court.[2]

If a judge refuses or fails to disqualify herself, a party may seek the judges disqualification. The party must do so, however, at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. (Code Civ. Proc., 170.3, subd. (c)(1).) (People v. Guerra (2006) 37 Cal.4th 1067, 1111 [quoting People v. Scott (1997) 15 Cal.4th 1188, 1207].) As in Guerra and Scott, Cummingss trial counsel was aware of all the facts that Cummings cites on appeal in support of his claim that the trial judge was biased. Nevertheless, counsel did not claim that the trial judge should recuse herself, or that Cummingss constitutional rights were violated because of judicial bias, apart from one statement: We are not getting a fair trial. It is too late to raise the issue for the first time on appeal. (People v. Guerra, supra, 37 Cal.4th at p. 1111.)

Cummings points to counsels statement I want the courts of appeal to rule and review all of the rulings and the behavior of the deputy D.A. in this case and this particular bench officer. That statement, however, came just after counsel stated she would absolutely not seek a mistrial, apparently confident that the courts rulings would fall on appeal on the merits. Counsel did not preserve the issue of judicial bias on appeal.

III. Cummings has forfeited his claim of judicial misconduct.

Cummings also makes the related claim that the trial court committed judicial misconduct by its heavyhanded treatment of his trial counsel. He points to the courts antagonism toward trial counsel, sometimes in front of or within the hearing of the jury, and claims that the conflict led to adverse rulings by the court that hampered the defense.

A claim that the trial court failed to maintain an atmosphere of neutrality and was unduly harsh to his trial counsel, undermining his right to an unbiased jury and prejudicing his guilty and penalty verdicts is not preserved for appellate review unless the defendant raise[s] the objection below on the grounds asserted in this claim, and . . . seek[s] a jury admonition regarding any of the alleged instances of judicial intemperance. (People v. McWhorter (2009) 47 Cal.4th 318, 373; People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Since he made no such objections and sought no jury admonition, Cummings has similarly forfeited his claim of judicial misconduct.

IV. Cummingss claims of judicial bias and misconduct are without merit.

In any event, however, we conclude that the claims of judicial bias and/or misconduct lack merit. Cummings has a due process right to a fair and impartial trial judge under the California and United States constitutions. (People v. Guerra, supra, 37 Cal.4th at p. 1111.) The trial judge also has a duty under section 1044 to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters. . . . Given that duty, [w]hen an attorney engages in improper behavior, such as ignoring the courts instructions or asking inappropriate questions, it is within a trial courts discretion to reprimand the attorney, even harshly, as the circumstances require. (People v. Guerra, supra, 37 Cal.4th at p. 1111.) Nevertheless, the court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. (People v. McWhorter, supra, 47 Cal. 4th at p. 373.)

We have reviewed the record and the exchanges in the trial transcript pointed to by Cummings, which we summarized above. While there was considerable vitriol in trial counsels complaints about the court and the prosecutor, and while the court accused counsel of misrepresentation and prevarication on several occasions, Cummings has failed to establish he was deprived of his constitutional right to a fair and impartial trial. The trial court was angry at the defenses failure to provide any discovery and what the court perceived (as Cummings admits, often correctly) as counsels misrepresentations regarding the record. Cummingss counsel reacted aggressively to any admonition by the court, and the conflict escalated to what at times became mutual accusations of unprofessionalism. While more restraint would have been advisable, [o]ur role . . . is not to determine whether the trial judges conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judges behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. (People v. McWhorter, supra, 47 Cal.4th 318, 373.)

The record does not show that Cummings did not receive a fair trial. Although there were bitter exchanges between the trial court and Cummingss counsel about the discovery related to the escape count, much of the debate concerned whether Cummings had struck or injured the officers, and the jury eventually acquitted Cummings of escape by force, finding him guilty only of the lesser included offense of escape.

The trial court and counsel also argued extensively about discovery of the murder book from Bowes killing in relation to the gang enhancement. The court did not allow either party to introduce the murder book, which showed that Bowes murder was not gang-related. It was trial counsels own open-ended question that invited the prosecutions gang expert to testify to hearsay that some gang members believed that the Bowe murder was gang-related.

The trial court refused during the defense case to allow Cummingss counsel to call a police practices expert on LAPD policy, to elicit hearsay statements from Detective Garcia, to call Roy Jones as a witness in the absence of any discovery, and to allow the defense gang expert to testify to opinions based on statements not disclosed to the prosecutor. These evidentiary rulings elicited some of the most acrimonious statements and accusations of bias by Cummingss counsel. Nevertheless, a trial courts numerous rulings against a partyeven when erroneousdo not establish a charge of judicial bias, especially when they are subject to review. (People v. Guerra, supra, 37 Cal.4th at p. 1112.)

Most importantly, the vast majority of the exchanges Cummings points to as evidence of judicial bias took place at sidebar or outside of the presence of the jury. Cummings does not point to any statement by the court in the jurys presence that might seem to lean toward or lend [the courts] influence to one side or the other. (People v. Sturm, supra, 37 Cal.4th at p. 1237.) Cummingss failure to claim that the exchanges and the courts alleged bias against his trial counsel influenced the jury is fatal to his claim of judicial bias or misconduct.

Cummings also argues that his trial counsels actions provoked bias by the trial court, and that he therefore received ineffective assistance of counsel. To establish ineffective assistance, Cummings must show both that his trial counsels performance was deficient and that there is a reasonable probability that but for the counsels mistakes, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687694 [104 S.Ct. 2052, 2064].) As the record does not show judicial bias or misconduct, Cummings has not demonstrated that the outcome of the trial would have been different if his counsel had behaved better, and any claim of ineffective assistance necessarily fails.

V. Cummings does not demonstrate that any of the adverse rulings were error.

Cummings argues that the trial judges bias caused evidentiary errors which prejudiced him at trial. His contention that the trial courts evidentiary rulings reveal a pattern of inconsistent determinations that compromised the fairness of the trial and unfairly favored the prosecution . . . [is] essentially a claim of judicial bias, which defendant forfeited by failing to assert it below. (People v. Farley (2009) 46 Cal.4th 1053, 1110.)

Cummings does not make freestanding claims of legal error as to the individu