P. v. Rivera CA2/6

Filed 7/10/26 P. v. Rivera CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, 2d Crim. No. B343534
(Super. Ct. No. 2024014992)
Plaintiff and Respondent, (Ventura County)

v.

EDWIN ALEXANDRO
RIVERA, JR.,

Defendant and Appellant.

Edwin Alexandro Rivera, Jr. appeals a judgment following
his conviction for unlawful driving or taking a vehicle (Veh. Code,
§ 10851, subd. (a); counts 1 & 3), receipt of stolen property (Pen.
Code, § 496d, subd. (a); counts 2 & 4) and misdemeanor hit and
run driving with property damage. (Veh. Code, § 20002, subd.
(a); count 5). Appellant was ordered to serve 341 days in jail and
he was placed on 24 months of probation.
We conclude, among other things, that the trial court’s brief
interruptions of defense counsel’s arguments to the jury, one brief
admonishment of defense counsel, and the court’s physical

1
movements during defense counsel’s oral argument, did not
constitute bias or judicial misconduct, and did not deprive
appellant of his right to a fair trial. We will affirm.
FACTUAL AND PROCEDURAL HISTORY
In June of 2024, Maricela Esquivel was a landscaper who
owned a Silverado truck with an attached trailer. The trailer
contained equipment for her work. While doing work, she left the
keys to the truck in the vehicle. When she came back to the
truck, she saw that it was gone. She called 9-1-1.
Shortly thereafter, Beatriz Chavez was in her minivan with
her husband. They were stopped at a traffic light. Suddenly
they were “rear-ended” by the Silverado. Her husband got out of
the van and briefly spoke with the Silverado driver, who was
appellant. The Silverado driver fled the scene.
Randy Rhodes, a retired superior court judge, was driving
his vehicle behind the Silverado and saw the “traffic collision.”
When the Silverado “took off” he “followed it.” Appellant
“accelerated” and drove the Silverado “into a culvert” where “the
truck and trailer ultimately rested.”
Appellant “got out of the truck, ran around the front, [and]
went into the trees.” Judge Rhodes followed appellant, caught up
with him and had a “conversation” with him.
Appellant told judge Rhodes that it was another person
who got out of the Silverado. Judge Rhodes knew that statement
was false because appellant was the only person to exit the
Silverado. Judge Rhodes called 9-1-1. He stayed with appellant
until the police arrived.
Appellant was arrested. The People charged appellant
with the aforementioned five counts. Appellant pled not guilty.

2
The case went to trial. While the jury was deliberating,
defense counsel requested “to put something on the record briefly
before the jury comes in.” He claimed the trial court had
improperly interrupted him during his closing argument to the
jury. The interruptions included a sidebar because of an exhibit
that was displayed that the court mistakenly believed was not in
evidence, and a “bathroom break.” He claimed the court also
appeared to be “giving very visible reactions during [his] closing
argument.” Defense counsel said the interruptions “affect my
client’s right to a fair trial.”
The trial court found defense counsel’s claims were without
merit. It called for a bathroom break because it mistakenly
believed defense counsel had completed his oral argument and it
interrupted the closing because it mistakenly believed the exhibit
had not been admitted into evidence. The court stated: “I
corrected you in front of the jury about using the term ‘any
reasonable doubt’ because I instructed you on the record to not
use that term during voir dire.”
Following the jury’s guilty verdicts, defense counsel filed a
motion for new trial. The motion raised the same claims about
the interruptions to defense counsel’s oral argument. Attached to
the motion were three declarations. One was from Donovon
Sides, the foreperson of the jury. He declared, among other
things, that during defense counsel’s argument the “judge was
fidgeting in his chair,” “shaking his head” and “putting his hands
[on] his face.” “The judge’s conduct gave me the impression he
was on the side of the prosecution.” “The judge’s conduct did not
affect my ultimate decision and verdict.”
The trial court denied the motion for new trial.

3
DISCUSSION
Standard of review
In reviewing a claim of judicial misconduct, “‘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.]” (People v. Snow (2003) 30 Cal.4th 43, 78 (Snow)
(overruled on other grounds in People v. Choyce (2025) 18 Cal.5th
86, 120; accord People v. Seumanu (2015) 61 Cal.4th 1293, 1321.)
An appellate court determines “the propriety of judicial comment
on a case-by-case basis in light of its content and the
circumstances in which it occurs.” (People v. Cash (2002) 28
Cal.4th 703, 730.)
Right to a fair trial
Appellant contends the trial court’s interruptions of defense
counsel’s argument to the jury, admonishments, and physical
reactions during argument constituted judicial misconduct which
deprived him of his right to a fair trial. We disagree.
“‘“A criminal defendant has due process rights under both
the state and federal Constitutions to be tried by an impartial
judge.”’” (People v. Nieves (2021) 11 Cal.5th 404, 498.) A
violation of these rights requires proof of “‘“‘the probability of
actual bias on the part of the judge or decisionmaker [that] is too
high to be constitutionally tolerable.’”’ [Citation.] ‘[I]t is the
exceptional case presenting extreme facts where a due process
violation will be found.’” (Ibid.)
“A trial court commits misconduct if it ‘“persists in making
discourteous and disparaging remarks to a defendant’s counsel
and witnesses and utters frequent comment from which the jury
may plainly perceive that the testimony of the witnesses is not

4
believed by the judge.”’” (People v. Sturm (2006) 37 Cal.4th 1218,
1238.)
“[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.” (Liteky v. U.S. (1994) 510
U.S. 540, 555 [127 L.Ed.2d 474] (Liteky).) “[J]udicial remarks
during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” (Ibid.) “A judge’s
ordinary efforts at courtroom administration-even a stern and
short-tempered judge’s ordinary efforts at courtroom
administration-remain immune.” (Id., at p. 556.) There is a
presumption that judges act honestly and with integrity. (People
v. Chatman (2006) 38 Cal.4th 344, 364 (Chatman).)
Interruptions of Defense Counsel’s Oral Argument
Appellant contends the trial court improperly interrupted
his defense counsel’s oral argument to the jury and these
interruptions denied him a fair trial.
1. The sidebar conference
Appellant claims the trial court improperly called a sidebar
conference while he was arguing. Defense counsel said, “[t]he
Court . . . was unaware of which exhibits had been admitted into
evidence, interrupted my PowerPoint and loudly enough for the
jury to hear made comments . . . about an exhibit which was, in
fact, not in evidence . . . .”
Appellant argues that “the record seems to suggest that
defense counsel was admonished for displaying a document the
trial court mistakenly thought was not in evidence . . . .” (Italics
added.) But appellant concedes that the “sidebar was not
reported.” Appellant has the duty to produce a complete record
and failed to produce a settled statement about the sidebar. We

5
may not presume error based on an incomplete record. (Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.)
From the record we have, appellant has not shown the
calling for a sidebar was an improper attempt to disrupt defense
counsel’s argument. The People note the trial court’s action was
“ordinary courtroom administration” that was “responsive to
evidentiary and legal issues.” The court called the sidebar
because it believed there was an exhibit that was not in evidence
that was being shown to the jury. The court said, “[a]s far as the
exhibit, that was an honest mistake. I made a mistake. It wasn’t
intended to disrupt your closing.” (Italics added.) The prosecutor
noted that the sidebar was very brief. It lasted only five to ten
seconds. Appellant has shown a mistake, but not judicial
misconduct.
2. The trial court calling for a bathroom break
Appellant suggests the trial court improperly called a
bathroom break to disrupt defense counsel’s oral argument.
During defense counsel’s oral argument he stated, “if there
is any doubts in your mind that are reasonable, that you have a
duty to vote not guilty.” The trial court then said, “All right.
Does anyone need a break? Or do you want to power through and
finish before lunch? Does anyone need to go to the bathroom?”
Defense counsel then stated, “I’m asking each and every one of
you-- --” The court said, “Sorry. I didn’t know you weren’t done.
I apologize.” Defense counsel responded: “That’s okay. I needed
a little breather.” (Italics added.)
There was no judicial misconduct. The trial court did not
realize that defense counsel had not finished his oral argument.
Defense counsel’s comments show this was not prejudicial.

6
3. The trial court’s comments about a jury instruction
Appellant claims the trial court improperly admonished his
defense counsel in front of the jury which denied him a fair trial.
But “‘reversal is not mandated where . . . rebukes of defense
counsel reflected not upon the merits of the case but rather on
the way it was being handled.’” (United States v. Edmond (D.C.
Cir. 1995) 52 F.3d 1080, 1101, citing United States v. DiTommaso
(2nd Cir. 1987) 817 F.2d 201, 220.) This is especially the case
where the admonition was brief and warranted. (People v.
Houston (2012) 54 Cal.4th 1186, 1221; Snow, supra, 30 Cal.4th at
p. 78.)
During defense counsel’s closing argument he said, “So I
ask each and every one of you to look at the facts, determine has
this been proven beyond any reasonable doubt? Is this the kind
of - -” The trial court then stated: “Beyond a reasonable doubt.
I’ve admonished you before. I’ve admonished you not to use that
term. It’s not the correct jury instruction . . . .”
Prior to oral argument, the trial court had instructed
defense counsel that when he discussed the jury instruction that
he should use the exact terms used in the reasonable doubt
instruction and not add terms to it. The court was apparently
concerned that adding additional terms could confuse the jury or
diminish the impact of the instruction. But during his oral
argument, defense counsel repeatedly used the terms such as “all
reasonable doubt” and “any reasonable doubt” instead of “a
reasonable doubt.” Despite not complying with the court’s
instruction to defense counsel, the court did not interrupt him.
When defense counsel did it repeatedly, the court intervened.
In a proceeding while the jury was deliberating, the trial
court said, “I will note for the record that I corrected you in front

7
of the jury about using the term ‘any reasonable doubt’ because I
instructed you on the record to not use that term during voir
dire.” “But you insisted to keep using that term during your
closing argument which is why I said it in front of the jury. I
admonished you. You continued to do so which is intentional,
which is a direct violation of what the Court asked you to do . . . .”
(Italics added.) “I interrupted you because you’re making a
misstatement of the law which is not allowed and you know
better.” (Italics added.)
By correcting defense counsel about the jury instruction,
the trial court was not committing judicial misconduct. It was
exercising its “courtroom administrative” authority to make sure
the jury understood the jury instruction. (Liteky, supra, 510 U.S.
at p. 555-556.)
The trial court’s request that the standard reasonable
doubt instruction be followed was appropriate because “varying
from the standard is a ‘perilous exercise.’” (People v. Freeman
(1994) 8 Cal.4th 450, 503-504; People v. Gottman (1976) 64
Cal.App.3d 775, 784 [“trial courts would be well advised not to
improvise on the traditional reasonable doubt instructions”].)
Defense counsel’s adding the word “any” to the standard
instruction could confuse jurors because “‘[t]he word “any” has a
diversity of meanings . . . .’” (Donohue v. Zoning Board of
Appeals (1967) 235 A.2d 643, 646.)
The trial court is “given great latitude” in “limiting the
scope of closing summations . . .” to “. . . ensure that argument
does not stray unduly from the mark.” (Herring v. New York
(1975) 422 U.S. 853, 862 [45 L.Ed.2d 593] (Herring).)
Consequently, the court may interrupt defense counsel’s oral
argument to correct counsel’s misstatement about the law (People

8
v. Maciel (2013) 57 Cal.4th 482, 539-540), or to direct counsel “to
restate the law as set out in the jury instructions.” (People v.
Pierce (2009) 172 Cal.App.4th 567, 571.)
The trial court made only a few brief interruptions in
defense counsel’s 30-minute closing argument. It briefly
corrected defense counsel’s statement on the jury instruction. It
did not “persistently” make “discourteous and disparaging
remarks to defense counsel.” (People v. Peoples (2016) 62 Cal.4th
718, 789-790.) It is well established that a “‘trial court’s
numerous rulings against a party ̶ even when erroneous ̶ do not
establish judicial bias . . .’” (People v. Avila (2009) 46 Cal.4th 680,
721.)
The trial court had the authority to admonish defense
counsel, particularly where it believed he had repeatedly violated
its order and his conduct could mislead the jury. (Liteky, supra,
510 U.S. at p. 555; Herring, supra, 422 U.S. at p. 862; Snow,
supra, 30 Cal.4th at p. 78 [It “‘is well within [a trial court’s]
discretion to rebuke an attorney, sometimes harshly, when that
attorney . . . ignores the court’s instructions . . . .’”]; see also
People v. Blacksher (2011) 52 Cal.4th 769, 826 (Blacksher) [the
court properly admonished defense counsel before the jury after
defense counsel repeatedly tried to “elicit inadmissible evidence”];
United States v. Balthazard (1st Cir. 2004) 360 F.3d 309, 319
[“[W]e allow trial judges substantial discretion in determining
how best to ensure attorneys behave appropriately in court”].)
The Trial Court’s Visible Reactions to Counsel’s Argument
Appellant’s defense counsel alleged, “that the [trial court]
appeared to have lots of visible reactions, whether it be shaking
its head, leaning back or just, you know, giving visible reactions
during my closing argument.”

9
The trial court responded, “As far as any expressions that I
was making, I don’t recall any of that. I lean back in my chair all
the time whether anyone is testifying, whether they’re giving
closing arguments. I did that when [the prosecution] was giving
his closing argument. I don’t believe that is something that is
indicative of any sort of bias or prejudice.”
We must give appropriate deference to the trial court’s
statements as there is a presumption that judges act honestly
and with integrity. (Chatman, supra, 38 Cal.4th at p. 364.)
Moreover, the speculative or debatable interpretation of a judge’s
physical reactions does not, by itself, meet the standard of
showing the judge likely harbored actual bias against a party.
(People v. Freeman (2010) 47 Cal.4th 993, 1006.) “Not
establishing bias or partiality . . . are expressions of impatience,
dissatisfaction, annoyance . . . and even anger, that are within
the bounds of what imperfect men and women, even after having
been confirmed as . . . judges, sometimes display.” (Liteky, supra,
510 U.S. at pp. 555-556.)
Appellant’s motion for a new trial relied on the declaration
of the jury foreperson. He declared that during defense counsel’s
closing arguments he saw the “judge fidgeting in his chair,”
“shaking his head” and “putting his hands [on] his face.” But in
denying the motion for new trial, the trial court explained,
“perhaps some of the facial expressions that the jurors may have
seen was just my frustration” with defense counsel’s conduct.
“[S]uch manifestations of friction between court and counsel,
while not desirable, are virtually inevitable in a long trial.”
(Snow, supra, 30 Cal.4th at pp. 78-79.) Because they merely
“were a reflection of frustration and irritation at counsel’s

10
repeated” violations of its directions, “they were not improper.”
(Blacksher, supra, 52 Cal.4th at p. 825.)
Any alleged errors are harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705];
People v. Watson (1956) 46 Cal.2d 818, 836.) The jury foreperson
claimed the “judge’s conduct gave me the impression he was on
the side of the prosecution.” But he also said, “I did not discuss
my observations with the other jurors.” “The judge’s conduct did
not affect my ultimate decision and verdict.” The People
presented compelling evidence of guilt.
The testimony of the People’s witnesses was
uncontradicted. No defense witnesses testified. Judge Rhodes
was an eyewitness to appellant’s crimes. He saw appellant drive
the stolen vehicle and the hit-and-run. Judge Rhodes followed
appellant and stayed with him until the police arrived. He
identified appellant in court. His testimony was supported by
photographs he took during this incident. Appellant has made no
adequate challenge on appeal to the evidence that supports the
verdicts. The trial court’s brief interruptions of defense counsel’s
argument involved only a small portion of the trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

CODY, J.

We concur:

YEGAN, Acting P. J. BALTODANO, J.

11
Paul W. Baelly, Judge

Superior Court County of Ventura
______________________________

Dan E. Chambers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Irvi and Maggie Lee, Deputy Attorneys
General, for Plaintiff and Respondent.