P. v. Smith
Filed 6/21/12 P. v. Smith
Ca3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Sacramento
----
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH LYNN SMITH, JR.,
Defendant and Appellant.
C065163
(Super.
Ct. No. 09F07633)
A jury found
defendant Kenneth Lynn Smith, Jr., guilty of
officer (id., § 148.9, subd.
(a)). A prior prison term allegation was
found true. (
(b).) Sentenced to a six-year state
prison term, defendant appeals, contending the trial court was not impartial,
rendering the trial fundamentally unfair under the Sixth and Fourteenth
Amendments of the
States Constitution. Concluding that
the trial court acted impartially and without misconduct, we shall affirm the
judgment.
FACTUAL BACKGROUND
On October 9, 2009, Saul Morales cashed
his $620 paycheck at the A-1 Liquor Store in South Sacramento. Once Morales cashed his check and put the
money in his pocket he went outside to the car to wait for his brother, who was
still in the store. While Morales
waited, two men approached and began punching him in the face.
man took the money from Morales’s pocket; the two men then ran off.
During their
investigation, the police learned that the A-1 Liquor Store had a surveillance
camera that recorded the incident. After
reviewing the video, Morales identified the two culprits. Later, in a field show up, Morales identified
defendant as one of the men who had beaten him and taken his money. At trial, Morales again identified defendant.
DISCUSSION
Defendant argues
the trial court acted in a partisan way, which amounted to a fundamentally
unfair trial under the Sixth and Fourteenth Amendments of the United States
Constitution. Specifically, defendant
contends the trial was unfair because (1) the trial court’s and the jury’s
extensive questioning of witnesses amounted to adding two party litigants; (2)
the trial court rewrote Evidence Code section 772;
and (3) the trial court’s refusal to allow defense counsel to review the jury’s
questions before they were posed to witnesses (a) allowed in inadmissible
evidence, and (b) denied defendant the right to present a defense. We conclude that none of defendant’s
arguments have merit.
Background
Prior to the
commencement of trial, the trial court explained to counsel the procedure that
would be followed. Specifically, the
trial court would allow the attorneys to have “two opportunities to question
the witness,†giving the attorneys a direct, a cross-, a redirect, and a
recross-examination. Thereafter, the
trial court would solicit written questions from the jurors. The trial court would then “state the
question . . . to the witnesses on behalf of the juror,†if the
question did not call for inadmissible evidence. If the trial court believed that the juror
question raised an issue for attorney discussion, the court would confer with
the attorneys at sidebar.
The trial court noted that 95 percent
of the time, it would ask the juror’s question without the “necessity of
consulting with the lawyers.†The trial
court explained that, if it asked a juror’s question, the attorneys could
“fairly assume that I [(the trial judge)] don’t feel that the question is
objectionable.†Nevertheless, the trial
court stated that if an attorney did have an objection to a juror’s question,
the attorney could still object.
Additionally, the trial court would allow the attorneys to object to a
juror’s question outside the jury’s presence, “usually [at] the next recessâ€;
if the court was persuaded it was “wrong in asking the question or part of the
answer was, upon reflection, inadmissible,†the court “would consider striking
testimony and admonishing the jury or taking some measure along those
lines.†Following juror and court
questions, the court would allow the attorneys to continue questioning the
witnesses.
After the jury
was selected, the trial court explained to the jury the same trial procedure
that the court had explained to the attorneys.
The court also told the jurors, sua sponte, that the court may “discuss
the question with the attorneys and decide whether it may be asked. Do not feel slighted or disappointed if your
question is not asked. Your question may
not be asked for a variety of reasons, including the reason that the question
may call for an answer that is inadmissible for legal reasons.†(CALCRIM No. 106.) The court continued, “Also, do not guess the
reason your question was not asked or speculate about what the answer might
have been. Always remember that you are
not advocates for one side or the other in this case. You are impartial judges of the facts.†(Ibid.)
After the
attorneys were finished examining the first witness, which was conducted in the
manner the trial court had described—two directs, two crosses, juror and court
questions, and attorney follow-up questions—defendant’s counsel informed the
court, out of the jury’s presence, that he had matters to discuss. Defendant’s counsel was concerned about the
number of questions the jurors and court posed to the witness and, because of
this, asked if the attorneys could see the questions prior to the court’s
reading of the question. The trial court
denied defense counsel’s request, stating that the jury ultimately determines
the outcome of the case and if “a juror needs some information in order to make
an intelligent decision,†the court was going to permit the question if it was
not objectionable. Defense counsel then
expressed his concern that the court was “taking sides†and “not remaining
neutralâ€; the court remarked that it was “not trying to help one side or the
other†and that it would give instructions to the jury reminding them of that.
I. Extensive
Questioning of Witnesses
Defendant first
asserts that the trial court and the jury became party litigants through their
extensive questioning, in effect removing their impartiality. We disagree.
“Numerous courts
. . . have recognized that it is not merely the right but the duty of
a trial judge to see that the evidence is fully developed before the trier of
fact and to assure that ambiguities and conflicts in the evidence are resolved
insofar as possible.†(
249, 255 (Carlucci); see also § 775.) “‘A trial judge may examine witnesses to
elicit or clarify testimony.
[Citations.] . . . The trial judge, however, must not become an
advocate for either party or under the guide [sic] of examining witnesses comment on the evidence or cast
aspersions or ridicule on a witness.’†(
1233, 1305 (Cummings), quoting
236, 241.) “For the same reason, the
judge has discretion to ask questions submitted by
jurors . . . .†(
Defendant points
to no specific instances where the trial judge or the jurors overstepped their
boundaries from impartiality to advocacy.
Defendant instead argues the cumulative effect of all the questions
asked by the court and jury amounted to partisan conduct.
Defendant
supports his argument by quoting from People
v. Handcock (1983) 145 Cal.App.3d Supp. 25, 30, “The right of a court
to call or question witnesses is not unlimited, ‘nor subject only to the whim
or caprice of the trial judge.’â€
However, defendant misinterprets the law in Handcock because he fails to address that decision’s very next
sentence, “Extreme care must be observed by the court so as not to shift the
balance of the case either for or against a
party . . . .†(
Therefore, Handcock does not
stand for the principle that there is a limit to the number of questions a
court may ask, as defendant would have us believe, but rather
questions a witness it must do so in a “‘fair and impartial . . .
manner . . . to avoid conveying to the jury an impression that [the
court] thinks the defendant is guilty of the offense with which he is charged . . . .’†(Ibid.) While the court and jury here may have asked
a number of questions of each witness, “‘[a] judge does not become an advocate
merely by asking questions.’†(
93 Cal.App.4th 258, 272 (Raviart).)
Although
defendant has not pointed to any specific instances where the trial court or
the jurors may have exceeded the bounds of their duties, this court has
reviewed the trial transcript including each instance of the trial court’s
participation in the questioning of witnesses.
After review, we conclude the trial court’s involvement did not
constitute misconduct.
The trial
court’s questions were meant to clarify and elicit testimony by the witnesses,
rather than to assume the role of an advocate.
(See Carlucci,
see also Raviart,
pp. 271-272; People v. Cook
(2006) 39 Cal.4th 566, 597 (Cook).) The trial court explicitly recognized that,
if “a juror needs some information in order to make an intelligent decision,â€
the court was going to ask questions so the juror could do so. In making this statement, the court noted
that the jury ultimately decides the outcome of the case, and if the jury needs
clarification or needs more information to make a decision the court was going
to facilitate that. We find no instances
where the trial court made “discourteous and disparaging remarks so as to
discredit the defense or create the impression it [was] allying itself with the
prosecution.†(People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207,
italics omitted.) In fact, the trial
court asked some questions that it felt were “beneficial to the defense.†For example, the court asked questions
demonstrating that the victim may have identified defendant as a suspect
because, prior to the identification, the victim was told the suspects had been
caught.
The trial court
also instructed the jurors, more than once, that they should “not take anything
I [(the trial judge)] said or did during the trial as an indication of what I
think about the facts, the witnesses, or what your verdict should be.†(CALCRIM No. 3550.) These instructions reminded the jurors of the
impartial role of the trial judge whose “questions to witnesses were designed
to clarify the evidence without favoring either side.†(Cook,
supra, 39 Cal.4th at
p. 598.) Accordingly, we conclude
no misconduct occurred.
II.
Section 772
Defendant next
argues that the court’s “partiality against the defense†was demonstrated by
what defendant claims was a rewriting of section 772.
Defendant has forfeited this claim by failing to so object in the trial
court. In any event, we disagree with
defendant’s argument.
As pertinent,
section 772, subdivision (a) states, “The examination of a witness shall
proceed in the following phases: direct
examination, cross-examination, redirect examination, recross-examination, and
continuing thereafter by redirect and recross-examination.â€
Defendant argues
that since the trial court’s procedure was to allow only two initial rounds of
attorney questions followed by jury and court participation, the court
truncated the section 772 procedure.
Defendant’s claim, however, is contrary to the settled case law
regarding court and jury participation.
As previously mentioned, section 775 and relevant case law specifically
allow for court and jury participation in trial. (Carlucci,
supra, 23 Cal.3d at p. 255;
Cummings, supra, 4 Cal.4th at p. 1305; § 775.) If we were to agree with defendant’s
argument, we would be adopting thereby a rule of law that restricts court and
jury participation during trial.
Moreover, the
trial court allowed the defense and the prosecution to resume their
examinations following the court’s and jurors’ questions, thus continuing the mode
of examination set out in section 772.
Accordingly, we conclude the trial court did not commit misconduct or
violate section 772 through its procedure.
III. Trial
Court’s Refusal to Allow Defense Counsel
to Review Jury Questions
Lastly,
defendant argues the trial court’s refusal to allow defense counsel to review
the jurors’ questions before they were posed to witnesses (a) allowed in
inadmissible evidence, and (b) denied defendant the right to present a
defense. We disagree.
The trial court
“has discretion to ask questions submitted by jurors or to pass those questions on and leave to the discretion of
counsel whether to ask the questions.†(
p. 1305, italics added; see also People
v. Majors (1998) 18 Cal.4th 385, 407.)
As
or counsel review the questions submitted by jurors, the danger of inadmissible
evidence being admitted is low. (See
submitted questions, but carefully screened them so as not to ask questions
that would elicit inadmissible evidence.
indicated that it had received a question from a juror that it was not going to
ask because the question would elicit inadmissible evidence. Thus, the trial court asked only questions
that it found unobjectionable, thereby avoiding any potential misconduct.
Defendant also
argues that “since he could not review and object to the juror questions before
they were asked, [he] was placed in the position of not being able to obtain an
order excluding otherwise inadmissible evidenceâ€; he “was effectively precluded
from casting doubt on the testimony of an adverse witnessâ€; and the court
adopted a “procedure whereby it was willing to, and would, admit inadmissible
evidence.†All of these arguments are
without merit. Defendant’s assertions
stem from not being able to object to the questions posed by the jurors and the
court; however, the record does not support his contention. The trial court was not only willing to
entertain objections from counsel—stating at the outset of trial that counsel
could object outside the jurors’ presence and reminding counsel that they could
object “[at] any timeâ€â€”but the trial court entertained objections made. Additionally, as previously mentioned, the
court carefully screened the questions so as not to ask questions that would
elicit irrelevant or inadmissible evidence.
For all of the above reasons, the court’s refusal to allow defense
counsel to review the jurors’ questions before they were posed to witnesses did
not prejudice defendant.
Because we
conclude that defendant was not precluded from objecting to the questions from
the trial court and the jurors, and he was not prejudiced by not being able to
review the jurors’ questions prior to the questions being asked, it follows
that defendant’s argument that he was denied the right to present a defense is
without merit.
DISPOSITION
The judgment is
affirmed.
BUTZ , J.
We concur:
RAYE , P. J.
DUARTE , J.
name="_ftn1" title="">[1] Codefendant Edmond Johnson was acquitted at
trial.
name="_ftn2" title="">[2] Undesignated statutory references are to the
Evidence Code.
