P. v. Garcia























Filed 12/17/12 P. v. Garcia CA2/3

















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE




>

THE PEOPLE, Plaintiff and Respondent, v. ROGER JESUS GARCIA, Defendant and Appellant.

B229386 (Los Angeles County Super. Ct. No. BA354566)

APPEAL from a judgment of the
Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Rand S. Rubin, Judge.
Affirmed.

Barbara A. Smith, under appointment
by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Assistant Attorney General,
Lance E. Winters and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff
and Respondent.



>_________________________











Roger Jesus Garcia appeals the
judgment entered following his conviction by jury of
attempted murder, two counts of attempted
second degree robbery, attempted carjacking, two counts of href="http://www.fearnotlaw.com/">assault with a deadly weapon, receiving
stolen property and attempted extortion.
(Pen. Code, §§ 664/187,
subd. (a), 664/211, 664/215, subd. (a), 245, subd. (a)(1), 496, subd. (a),
664/524.)href="#_ftn1" name="_ftnref1" title="">[1] The jury found Garcia committed each offense,
except receiving stolen property, for the benefit of a href="http://www.mcmillanlaw.com/">criminal street gang (§ 186.22,
subd. (b)(1)(C)), Garcia personally used a deadly weapon in the commission
of attempted murder, attempted carjacking, one count of attempted robbery and
both counts of assault with a deadly weapon (§ 12022, subd. (b)(1)), and Garcia
personally inflicted great bodily injury in the commission of attempted murder,
attempted carjacking, one count of assault with a deadly weapon and one count
of attempted robbery (§12022.7, subd. (a)).


On appeal, Garcia contends the
trial was marked by prosecutorial and
judicial misconduct which deprived him of a dispassionate consideration of the impeachment of the
victims, thereby denying him due process
and a fair trial. However, none of
the cited instances amounts to anything more than incivility and quite nearly
all of the asserted misconduct occurred at the sidebar and thus could not have
affected the jury. We therefore
affirm the judgment.

>FACTS AND PROCEDURAL BACKGROUND

1.
The
prosecution’s evidence.

a.
The
incident in Toberman Park.

On January 29, 2009, at
approximately 8:00 p.m., Carlos Arroyo drove his friends, Jose and Omar Garcia,
Lillian Perez, Antonio Hernandez and Robert Ortiz in his Lincoln Navigator to
Toberman Park in the City of Los Angeles to play basketball. Arroyo parked near the gate to the basketball
courts. Another friend, Adam Buenrostro,
drove separately and parked on the other side of the park. Jose Garcia had been to the park on numerous
previous occasions to play basketball and had noticed Burlington gang graffiti
in the area. When they arrived, a game
was in progress on the main court so they went to another court. When the game ended, Jose Garcia and his
friends moved to the main court to play the winners of the previous game.

Garcia, who had been standing next
to the fence drinking with several other people, approached Jose Garcia and
Robert Ortiz and asked where they were from, which they interpreted as a gang
question. Jose Garcia responded they
were not from anywhere and they just wanted to play basketball. Garcia said, “You guys better break bread,”
which Jose Garcia interpreted as a demand for property. Omar Garcia and Robert Ortiz testified Garcia
said they had to pay “rent.”

Garcia produced a box cutter and
pulled Jose Garcia’s silver chain from his neck but Jose Garcia was able to
grab it back. Garcia swung the box
cutter at Jose Garcia, causing him to step back to avoid being cut. Jose Garcia and his friends decided to
leave. As they walked from the
basketball court, Buenrostro saw Garcia and his friends in a huddle, “like a
football team . . . .”

When they arrived at the
Navigator, Buenrostro realized he had left his wallet and cell phone near the
basketball courts. Arroyo asked a male
on the other side of the fence if he could get the wallet and phone. Arroyo saw a group of individuals, including
Garcia, running toward them. Buenrostro
yelled, “Let’s go, get in the car, they’re coming.” Everyone ran to the Navigator and got
in.

Garcia and three or four others
prevented the driver’s door from closing.
Garcia stuck his head inside the Navigator and demanded “cell phones,
wallets, everything . . . .” The
occupants responded they had nothing.
Garcia tried to take Arroyo’s keys, punched Arroyo and then dragged him
from the Navigator with several others, including Castillo. Through the SUV window, Jose Garcia saw Garcia,
Castillo and others beating and kicking Arroyo.


While Arroyo was being attacked
outside the SUV, four other males rushed the driver’s side passenger door and
tried to pull Jose Garcia from the vehicle.
At this point there were 11 to 13 people around car, trying to break the
windows and open the doors. One
individual was on the roof of the SUV attempting to break the moon roof. Jose Garcia punched one of the
individuals trying to pull him from the car.
Jose Garcia eventually was able to close the door and lock it.

During the attack on Arroyo,
Garcia stabbed Arroyo three times on the arm and once in the stomach. Arroyo pulled himself back into the SUV, saw
he had been cut to the bone and started screaming. Garcia and his friends pulled him from the
Navigator a second time, knocked him to the ground and again attacked him. Arroyo was able to reenter the SUV but again
was pulled from it and pummeled

At about the time Arroyo was able
to return to the vehicle the third time, Buenrostro yelled “cops” and most of
the people around the car ran. Two or
three of the attackers, including Garcia, did not. Garcia approached the driver’s door of the
SUV and swung the blade at Arroyo’s head but cut the driver’s seat head
rest. Garcia swung again and cut Arroyo
on the left side of the head near the eye.
Blood was pouring from the wound.
Garcia reached in and tried to take the car keys. When Arroyo leaned forward, Omar Garcia
punched Garcia in the face. Garcia looked
at Omar Garcia and said, “Oh, you hit me?”


Arroyo managed to start the
Navigator and drive away but he was near fainting. His friends took him to California
Hospital. On the way, Perez called
911. She became excited during the call
and Jose Garcia spoke to the dispatcher.
A recording of the 911 was played for the jury.

b.
Investigation.

Los Angeles Police Officer Arroyo
Escobar and his partner, Officer Anthony Lanza, received a radio call regarding
the incident. They went to California
Hospital to interview Arroyo but he was in surgery. They resumed patrol and saw Garcia, Castillo
and Hernan Martinez on Burlington Avenue, a short distance from Toberman
Park. Garcia gave Escobar permission to
pat him down and, in Garcia’s right rear pocket, Escobar found a box cutter
that had wet stains on it. Garcia also
had what appeared to be blood stains on his sweatshirt and the leg of his
pants. All three were transported to
Rampart Division.

When the officers returned to the
hospital to interview Arroyo, they were advised Arroyo’s friends were waiting
in another area. Officer Escobar and
Buenrostro went to the scene while Officer Lanza remained at the hospital and
interviewed the other witnesses. When
Escobar and Buenrostro returned, Buenrostro’s wallet was found in Garcia’s
property, which remained in the patrol car, and the wallet was returned to
him.

c.
Testimony
of the gang expert.

Los Angeles Police Officer Alfredo
Aguayo testified as a gang expert. The
Burlington Locos gang has 15 to 20 members and is one of the smaller gangs in
the Rampart jurisdiction. Garcia was not
a known member of the gang prior to this incident. The gang’s territory is bounded by the 110
Freeway, Union Avenue, Pico Boulevard and Washington Boulevard. Burlington gang members congregate in the
area of Toberman Park. The gang is able
to maintain control of its territory despite its small size “through the use of
violence.” The primary activities of the
gang are robbery, murder, possession for
sale of narcotics, possession of handguns and carjackings.

Given a hypothetical based on the
facts of this case, Aguayo opined an individual who asked where others were
from, claimed an area for a gang and demanded rent, would be a gang
member. If this individual were not a
gang member, Aguayo would expect “serious consequences.” Aguayo testified the victim’s act of taking
back the chain would be seen as disrespect.


Aguayo further opined the crimes
were committed for the benefit of a criminal street gang and Garcia was an
active member of the gang at the time of this incident. Aguayo based the latter opinion on Garcia’s
claim of the park as gang territory and Garcia’s tattoos, which include a
“BNLS” tattoo on his shoulder, which refers to Burlington Locos, and “street
soldier” tattooed on the back of his neck.
Also, the crime occurred at one of the gang’s strongholds.

Castillo is a member of the Pico Union District Kings, a
tagging crew that associates with the Burlington Locos gang. Aguayo has researched whether any of the
victims in this case are gang members and, to his knowledge, none was.

2.
Codefendant
Castillo’s defense.

Edwin Pineda testified he noticed Garcia arguing with Arroyo
and two of Arroyo’s companions. After
the argument ended, Arroyo and his friends walked to the Navigator and entered
the vehicle. Arroyo then exited, spoke
to someone at the fence and yelled something at Garcia who was on the other
side of the park. Garcia started walking
toward Arroyo and three or four people followed him. A fight ensued on the far side of the SUV out
of Pineda’s view. Castillo tried to stop
the fight and pulled people off.

Castillo testified in his own
defense. He has known Garcia for over
five years and has heard Garcia was a gang member before Castillo knew
him. Castillo noticed Jose Garcia, Omar
Garcia and Arroyo arguing with the players who lost the first game. Castillo recalls one of them was in the
middle of the street yelling insults at people on the court. Garcia walked to the street, started arguing
and someone struck him. When a fight
started, Castillo ran to the scene and tried to separate the combatants.

3.
Garcia’s
defense.

Garcia testified in his own
defense. He was employed as a
maintenance worker by the Pico Union Housing Corporation, which has corporate
and maintenance offices in Toberman Park.
When Garcia was in school, there was a gang war and most of Garcia’s
friends joined the Burlington gang but Garcia had friends in other gangs. When Garcia was 15 years of age, he had the
name of his girlfriend tattooed on his left shoulder. He later tried to cover it with a BNLS tattoo
but did not have the tattoo finished because he wanted no part of the
gang. Garcia denied gang
membership.

On the date of the incident, Garcia
remained in the park after work, drinking.
By 8:00 p.m., he was intoxicated.
Garcia saw Arroyo, Jose Garcia and Omar Garcia arguing on the basketball
court about who would play the next game.
Garcia had seen all three in the park previously. Garcia told them if they could not wait, they
should “just get the fuck out of here.”
After Arroyo and his friends walked away. Garcia saw Arroyo at the fence
talking to someone. Jose Garcia and Omar
Garcia yelled challenges at Garcia from the street and called him a bitch. As Garcia and Arroyo walked toward the
Navigator, Garcia felt a blow to the back of his head. Arroyo then punched Garcia in the left
eye. Garcia momentarily lost
consciousness, then produced a box cutter he uses at work and swung it blindly
in self-defense until he was pulled
away. Garcia denied trying to take
Arroyo’s keys or demanding property.
Garcia received medical treatment for a head injury at the county jail
and he had a black eye when he was arraigned.


Garcia
denied that he possessed Buenrostro’s wallet and claimed the police officers
did not find a wallet when they searched him.
Garcia also denied that he told the arresting officers he was a member
of the Burlington Locos gang and denied he told a doctor at the jail the
arresting officers struck him in the back of the head.

4.
Rebuttal.

Officer Lanza testified that, after
he recovered the box cutter from Garcia, he asked where Garcia was from. Garcia responded, “Burlington locos,” and
indicated he was called “Dirt.” Garcia
said he had been a member of the Burlington Locos for eight years and he did
not have a job.

Wilbur Williams, M.D., treated
Garcia at the Men’s Central Jail on February 4, 2009. Garcia had a hematoma on the back of his head
and said he was involved in an altercation with arresting officers.

5.
Verdicts
and sentencing.

The jury convicted Garcia as
charged. The jury acquitted codefendant
Castillo of attempted carjacking and attempted robbery of Arroyo, but convicted
him of assault with a deadly weapon on Arroyo committed for the benefit of a
criminal street gang.

At allocution, Garcia thanked the
trial court for a fair trial and requested leniency. The trial court sentenced Garcia to href="http://www.fearnotlaw.com/">state prison for 25 years and four
months.

CONTENTIONS

Garcia contends numerous instances of judicial and
prosecutorial misconduct resulted in a trial filled with open hostility which
deprived him of a dispassionate consideration of the evidence, especially the impeachment of the
victims, thereby denying him due process
and a fair trial.

DISCUSSION

1.
Relevant
principles.

“The
due process clause of the Fourteenth
Amendment requires a fair trial in a fair tribunal before a judge with no
actual bias against the defendant or interest in the outcome of the case. [Citations.]
[¶] name=B412008564793>name="______#HN;F43">Section 1044 provides that a
trial court has the duty to control the trial proceedings. [Citation.]
When an attorney engages in improper behavior, such as ignoring the
court’s instructions or asking inappropriate questions, it is within a trial
court’s discretion to reprimand the attorney, even harshly, as the
circumstances require. [Citation.] . . .
[A] trial court’s numerous rulings against a party—even when erroneous—do not
establish a charge of judicial bias, especially when they are subject to
review. [Citations.]”
(People v.
Guerra
(2006) 37
Cal.4th
1067,
1111,
overruled on other grounds in People v. Rundle (2008) 43 Cal.4th 76,
151.) A trial court commits misconduct
if it creates the impression it is denigrating the defense or otherwise allying
itself with the prosecution. (People
v. Blacksher (2011) 52 Cal.4th 769, 824.)

“[W]hile
a showing of actual bias is not required for judicial disqualification under
the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of
the circumstances in the particular case, there must exist ‘ ”the
probability of actual bias on the part of the judge or decisionmaker [that] is
too high to be constitutionally tolerable.” ‘
[Citation.]” (People v.
Freeman (2010) 47 Cal.4th 993, 996.)name="SDU_7"> “Indeed, ‘[o]ur role . . . is not to
determine whether the trial judge’s conduct left something to be desired . . .
. 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.]” (People v. Snow (2003) 30 Cal.4th 43, 78.)

“
‘A prosecutor commits misconduct when his or her conduct either infects the
trial with such unfairness as to render the subsequent conviction a denial of
due process, or involves deceptive or reprehensible methods employed to
persuade the trier of fact.’
[Citation.]” (>People v. Houston (2012) 54 Cal.4th
1186, 1222.)

With
these principles in mind, we turn to Garcia’s contentions.

name=B342028324092>2.
None
of the incidents cited by Garcia rises to the level of misconduct.

Before addressing Garcia’s
claims specifically, we note Garcia did not object to any of the alleged
incidents of judicial
misconduct. Because
a timely admonition could have cured any potential prejudice, Garcia has
forfeited those claims. (People v.
Blacksher, supra, 52 Cal.4th at p. 825; People v. Sturm (2006) 37
Cal.4th 1218, 1237.) However, even if
Garcia’s failure to object is overlooked, his claims uniformly fail.

Garcia claims the trial court disparaged defense counsel’s efforts on
behalf of Garcia, frequently telling Garcia’s attorney to move on, and scolding
counsel for taking too much time. He
claims the disorderly and rude trial proceedings tended to alienate the jury
from Garcia’s trial counsel and from Garcia, and it compromised the fairness of
Garcia’s trial. However, none of the
cited instances supports Garcia’s claim.


Garcia first complains the trial court called an objection by his counsel
“ridiculous.” However, the trial court
made this remark in response to an objection interposed by counsel for
codefendant Castillo, not counsel for Garcia, in which Castillo’s counsel
asserted the prosecutor was not referring to the witnesses and the parties by
their full names. Moreover, the trial
court referred to the objection as ridiculous outside the presence of the
jury. Thus, the remark could not have
been prejudicial. (See People v. Guerra, supra,
37 Cal.4th at p. 1112
[no judicial misconduct where all of the trial court’s comments were made
outside the presence of the jury]; accord People v.
Burnett (1993) 12 Cal.App.4th 469, 475; People
v. Kagan (1968) 264 Cal.App.2d 648, 662; see also People
v. Williams (2009) 170 Cal.App.4th 587, 630 [prosecutor’s statements
made outside the presence of the jury could
not have prejudiced the defense].)

Garcia further contends the trial
court improperly advised defense counsel during a sidebar discussion that her
questions were misleading. This incident
occurred during cross-examination of Jose Garcia with respect to whether he
knew, at the end of the 911 call, whether the police were coming to the
hospital to speak to him. Garcia’s
counsel sought to impeach Jose Garcia with preliminary hearing testimony which
indicated he did not know the police were coming. At the side bar, the prosecutor indicated
Jose Garcia was asked at the preliminary hearing if he knew the police were
coming “to interview you, your group, because Arroyo had been seriously
injured.” The trial court suggested
Garcia’s counsel ask the same question instead of changing it. The trial court also indicated, “I don’t see
a whole lot of relevance to this question.
I mean, look at the jurors. You
guys want bored jurors? I mean, I think
you hit the major issue. I don’t even
see a lot of relevance to it. But if
you’re going to ask it, ask it the same way it’s asked at the prelim.”

This admonition did not amount to
judicial misconduct and fell well within the trial court’s ability to control
the proceedings. (§ 1044.)

Garcia next complains the trial
court told counsel the case was “dragging” and, in mid-trial, told the parties
the case should by plea bargained. The
record indicates that, outside the presence of the jury, the trial court
inquired whether there was a chance of a disposition. The parties then discussed
pending plea bargains. During this
conference, the trial court noted an alternate juror would have to be released
and complained the time estimate for the trial had been “at least four days
low” and, at the pace the trial was proceeding, there was a risk other jurors
would not be able to complete the trial.
Nothing in these proceedings outside the presence of the jury caused
Garcia prejudice. (See People
v. Guerra, supra,
37 Cal.4th at p. 1112.)

Garcia notes the trial court told his counsel to stop cross examination
on “minutae” and thereafter advised the jury the trial would remain in session
until 4:30 or 5:00 p.m. daily to complete the matter as expeditiously as
possible. Garcia contends the trial
court’s indication to the jurors they would have to stay longer each day to
make the trial move along conveyed the view the particulars of the testimony
were unimportant.

At the pages cited by Garcia, outside the presence of the jury, the trial
court observed the Sheriff’s Department was not bringing the defendants into
the courtroom in a timely manner and advised counsel
it would try the case from 10:00 a.m. until 4:30 or 5:00 p.m. every day,
“otherwise were going to lose some jurors.”
The trial court suggested questions related to where everyone was seated
in the Navigator were more appropriate for argument and asked: “Why are we wasting so much time? Look at the jurors. You guys have the jurors so aggravated at you
guys because they’re sitting there for nothing.
You are wasting their time. Get
to the key issues and move on.”
Thereafter, the trial court advised the jury of the new timetable for
the trial. Nothing in the trial court’s
remarks to the jury suggested the particulars of the testimony were
unimportant. The suggestion that counsel
focus on key issues and avoid aggravating the jury cannot have prejudiced
Garcia.
Moreover, the trial court justifiably was concerned with the length of
the trial, given that two jurors were excused during the course of the trial
because it exceeded time estimates and a third juror would have been lost had
the trial not concluded when it did.

Garcia next complains the trial court disparaged Garcia’s counsel for
taking too much time. However, at the
cited pages of the reporter’s transcript, the trial court asked the prosecutor
whether a break was appropriate and stated:
“I thought we were finished with this witness 20 minutes ago.” The trial court did not disparage anyone.

Garcia next asserts the trial court stated at a sidebar conference the
prosecutor was engaging in “over-kill” with respect to gang photos and asked
the prosecutor whether she was going to be like defense counsel. In fact, after the jury exited the courtroom,
the prosecutor discussed the photographic evidence the People intended to
use during examination of the gang expert, which previously had been
addressed. During the discussion
that followed, the trial court stated, “I thought you wanted to revisit it
again . . . like [defense counsel].”
Defense counsel responded, “Hey, hey now. I’m sitting here quietly.” Nothing in this exchange suggests hostility
toward the defense.

Garcia asserts
the trial court told defense counsel she was “badgering” Arroyo and to “take it
down a notch,” and told defense counsel she presented impeachment in an
improper form. The first incident
occurred during defense counsel’s cross-examination of Arroyo regarding whether
anyone in his group made gang signs on the basketball court. The trial court
interrupted and said: “Let’s let the
witness answer the questions. And let me
see counsel about one other thing also.”
At the sidebar, the trial court stated “almost every question you’re . .
. yelling at the witness. It’s really
not appropriate. It’s badgering the
witness. I’m sustaining my own
objection. Take it down a notch.” These comments not only were made at the
sidebar but also were well within the trial court’s duty to control the
proceedings and its discretion to reprimand counsel for inappropriate
behavior. (People
v. Snow, supra,
30 Cal.4th at p. 78; § 1044.)

At the end of the sidebar conference, the trial court asked defense
counsel to show any photographs counsel intended to use during
cross-examination to the prosecutor before they were presented to the
jury. Defense counsel previously had
asserted the defense had no obligation to disclose impeachment evidence. Garcia does not claim error in trial court’s
directive and no judicial misconduct appears.


Garcia next contends the trial court demonstrated anti-defense bias
during a sidebar conference in which the trial court told defense counsel she
purposely was confusing Arroyo on cross-examination and dismissed a claim by
Garcia’s counsel that Arroyo was arguing with her. This situation arose after Arroyo complained
defense counsel’s questions seeking to distinguish what he told the police from
what happened on the evening of the incident were confusing him. At the sidebar, the trial court indicated the
line of questioning was misleading because Garcia’s counsel was not asking what
Arroyo told the police but whether Arroyo made a specific statement. At the close of the discussion, the trial
court told defense counsel to “go ahead with your line of questioning, but
don’t purposely confuse the witness.”
This exchange occurred outside the presence of the jury. Moreover, the trial court’s comments were
well within its duty to control the proceedings. (§ 1044.)

Garcia asserts the trial court also disparaged Arroyo, saying impeachment
was meaningless, given that he was not “the brightest
guy in the world.” The trial court made this
remark at the sidebar during defense counsel’s cross-examination of
Arroyo. Garcia’s
counsel sought to impeach Arroyo with his preliminary hearing testimony which
indicated Garcia produced the box cutter after he snatched Jose Garcia’s
chain. The trial court agreed Arroyo had
testified inconsistently as to when he first saw the box cutter and indicated
Arroyo may not be “the brightest guy in the world.” Garcia’s counsel agreed. The trial court indicated defense counsel
would not be foreclosed from arguing Arroyo “said two different things.” Garcia’s counsel responded, “fair enough,”
and thanked the trial court for its ruling. Certainly, this is not the stuff of judicial misconduct.

Garcia complains the trial court misread Arroyo’s testimony to indicate
he was struck 20 times rather than to indicate he landed 20 blows and
thereafter made rulings based on this misconstruction of Arroyo’s
testimony. The relevant testimony came
in response to defense counsel’s question asking Arroyo how many blows he
“g[o]t off.” It appears Arroyo’s
answer, “around 20,” was an indication of how many times he was struck, not the
number of times he struck his assailants.
Thus, the trial court’s reading of the testimony was not
unreasonable. Moreover, even if the
trial court was mistaken in this regard, substantially more is required to
demonstrate a violation of the right to a fair trial. (People v.
Freeman, supra, 47 Cal.4th at p.
996.)

Garcia next complains that even witnesses butted heads with defense
counsel, noting Officer Escobar told defense counsel to stop
“yelling” at him. This occurred when
Garcia’s counsel cross-examined Officer Escobar with respect to who removed
Buenrostro’s wallet from Garcia’s person.
Escobar stated: “You don’t need
to yell at me.” Garcia’s counsel
responded: “I’m not yelling. I’ve raised my voice, but I’m not
yelling.” Escobar then stated: “Okay.
We’re friends.” It is difficult
to imagine how this exchange adversely affected Garcia.

Garcia next asserts the prosecutor interrupted defense
counsel’s cross examination of Officer Lanza to admonish Garcia’s attorney not
to “glare” at Officer Lanza. The record
indicates that, on direct examination, the prosecutor
asked if Officer Lanza saw blood in various areas. Defense counsel objected the question
required a conclusion as to whether blood was on the clothing. The trial court sustained the objection and
advised the prosecutor to ask the officer whether he saw “what appeared to be
blood.” Thereafter, the prosecutor
asked, “Just to be technical about it, is this one of the areas where you
noticed what appeared to be blood?” The
prosecutor then asked another question and, before Officer Lanza responded, the
prosecutor asked defense counsel to “stop glaring at the witness.” Garcia’s counsel objected and requested a
sidebar at which she complained the prosecutor’s statement she would proceed
“technically” had upset defense counsel.
The prosecutor then indicated defense counsel had been “glaring at
Officer Lanza . . . .” Garcia’s counsel
denied she had glared at Officer Lanza and indicated she had been glaring at
the prosecutor. The prosecutor indicated
she did not appreciate the defense making light of the case. The trial court stated, “I don’t think
there’s a lot of light made of the serious case. I think that everyone does need to act
professionally.”

Given that defense counsel admitted she had been “glaring” at the
prosecutor, it is difficult to discern how the prosecutor’s statement
prejudiced Garcia. Further, the trial
court appropriately directed the parties to act professionally. No diminution of Garcia’s right to a fair
trial or prosecutorial misconduct appears.

Garcia next asserts that, in the presence of the jury, the trial court
agreed defense counsel’s questions with respect to whether Pineda had seen a
physical confrontation were “misleading” and misstated the evidence. The trial court admonished defense counsel
to: “Just be careful in asking the
questions.” In fact, during
cross-examination with respect to Pineda’s prior knowledge of Jose Garcia and
Omar Garcia, the trial court sustained an objection on the ground defense
counsel’s question assumed facts not in evidence. The prosecutor then asked defense counsel to
refrain from disclosing the names of witnesses.
Shortly thereafter, Pineda testified he saw no physical fight on the
basketball court. Defense counsel then
asked: “So . . . no physical
confrontation at all? Just words?” The prosecutor objected the question
misstated Pineda’s testimony.
The trial court responded, “it does misstate. He said he didn’t see it.” The prosecutor then asked the trial court to
ask counsel “not to mislead.” Defense
counsel responded: “I’m not
misleading. I object to editorializing
by [the prosecutor].” The trial court
then stated: “Just be careful in asking
the questions.”

This exchange is consistent with the trial court’s duty to control the
proceedings and nothing the trial court or the prosecutor said denied Garcia a
fair trial.

Garcia next claims there was a hostile sidebar conference during which
the prosecutor accused defense counsel of violating a court order by using
Arroyo’s last name. The court agreed
Arroyo’s name previously had been stated in the presence of the jury but
sustained the objection and said counsel was “misleading” Pineda. The record indicates the prosecutor
objected during defense counsel’s examination of Pineda and asked to
approach. At the sidebar, the prosecutor
complained Garcia’s counsel inappropriately was using the last names of the
witnesses in violation of a protective order.
The trial court agreed and, after further discussion of the issue,
stated: “You want to know something,
you’re both doing what you can to drag this on.” The prosecutor objected she had only been
trying to protect the identity of the witnesses. The trial court responded it already had
ruled defense counsel could not use last names. “But then we sit here and we talk for another
five minutes. The questions are not to
the point. The questions are not
detailed. The questions are misleading,
and counsel . . . [¶] . . . keeps going on and on.”

This side bar was not hostile and,
given that the jury was unaware of the content of the sidebar, nothing stated
by the trial court could possibly have prejudiced Garcia. Moreover, the trial court’s statements were
entirely consistent with its duty to control the proceedings.

Garcia contends
he was somehow prejudiced by a conference outside the presence of the jury
during which the prosecutor declined to stipulate that only one 911 call had
been placed. During the conference, defense
counsel expressed outrage and asserted it was misconduct for the prosecutor
“not to agree to the state of the evidence.”
Eventually, the prosecutor responded, “if the court thinks it’s relevant
. . . , I will be happy to stipulate to it.
I do not think based on the state of the evidence it is relevant.” The trial court agreed and indicated “it does
nothing to the case one way or another.”


Nothing in the prosecutor’s refusal
to stipulate only one 911 call was made caused Garcia prejudice. As there was no serious dispute with respect
to how many 911 calls were placed, nothing in the tenor of the sidebar
conference or the prosecutor’s refusal to stipulate suggests the trial was
unfair.

Garcia contends that, during the presentation of evidence related to
Garcia’s injuries, defense counsel stated at the sidebar, “I really don’t like
the giggling when we’re trying to do argument.
It’s really hard not to respond angrily when there’s a lot of
argument. It’s not funny.” This incident occurred before the jury
returned from the lunch recess. The
record does not reflect that the prosecutor “giggled.” Moreover, assuming the prosecutor did giggle,
the jury was not present. Consequently,
Garcia could not have been prejudiced.

In what Garcia refers to as a prime example of misconduct that must have
led the jury to conclude the prosecutor hated Garcia and his counsel, Garcia
cites the trial court’s reversal of its ruling to exclude Garcia’s statement to
the arresting officers that he was a member of the Burlington gang. Garcia requested a mistrial when the
prosecutor asked Garcia on cross-examination if he told the police he was a
gang member. At the sidebar, the trial
court agreed evidence of Garcia’s statement had been excluded. However, after further cross-examination, the
trial court ruled that if Garcia denied admitting to the police he was a member
of the Burlington gang, he could be impeached with his prior inconsistent
statement. Because Garcia took the stand
and testified in his own defense, the trial court’s ruling was correct. (See, e.g., Harris
v. New York (1971) 401 U.S. 222, 225-226 [28 L.Ed.2d 1] [statements
obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] may be used to impeach a
testifying defendant]; Walder v. United States (1954) 347 U.S. 62, 65
[98 L.Ed. 503] [evidence obtained in violation of the Fourth Amendment]; People
v. May (1988) 44 Cal.3d 309, 315 [statements obtained in violation of Miranda].) Thus, no improper prejudice to Garcia is shown.

Garcia next asserts that, during the prosecutor’s cross-examination of
Castillo, the trial court commenced a sidebar conference by telling Garcia’s
counsel to “change your attitude” and not to “yell” for a sidebar. During the conference, defense counsel
accused the prosecutor of giggling and disputed the trial court’s assertion
that counsel was “too loud.” This
incident occurred on cross-examination of Castillo. The prosecutor
asked whether Castillo told the police officers he had been at the park during
the fight. Defense counsel objected and
asked to approach. At the sidebar, the
trial court stated: “The first thing I’m
going to tell you is, change your attitude.
. . . You don’t yell that you
need to approach the sidebar. Don’t do
that.” When defense counsel complained
the prosecutor’s question was inappropriate, the trial court admonished defense
counsel she was “talking too loud.”
Defense counsel stated, “my voice is as loud as yours.” The trial court disagreed and stated “it was
much louder.” Defense counsel then
stated: “Editorial comments and the
giggling is so unprofessional and –” The
trial court then advised the jury, “The attorneys can’t keep their voices
down. Let me have you all step in the
jury room. I’ll bring you out as soon as
I finish with the attorneys.”

After
the jury left the courtroom, defense
counsel protested the prosecutor improperly had asked Castillo whether he
protested his innocence after being stopped by the police. The trial court disagreed and indicated the
prosecutor asked whether Castillo told the police he had been in the park. After further discussion, defense counsel
asserted the prosecutor’s lack of familiarity with her professional
responsibility gave defense counsel “grave concerns.” The trial court stated, “Based on that question,
there was no reason to go nuts and yell about immediately approaching. . .
. I don’t know why you’re emotional
about this case.” Defense counsel
responded the prosecutor was inexperienced and her conduct in the presence of
the jury had been “very unprofessional.”
The trial court indicated, “That is not on the record at any
point.” The trial court noted it had
been “very tolerant of all counsel” and ruled the prosecutor’s question was
proper.

The prosecutor resumed
cross-examination of Castillo with respect to whether he told the police he was
at the park. When Castillo agreed he did
not tell the police he helped to pull people off the fight, the prosecutor
asked, “you were there; correct?”
Defense counsel again requested a sidebar at which the prosecutor
indicated Castillo wrote a statement in which he said he did nothing. Defense counsel noted this information was
not elicited on direct examination and was “not something you can just bring up
in front of a jury.”

After
further discussion, the trial court sustained the objection because the
written statement was consistent with Castillo’s testimony, “he didn’t do
anything in the park . . . .” When the
prosecutor argued the People could question Castillo about the statement,
defense counsel reiterated her objection and asserted the prosecutor “did
exactly what I predicted she’d do and we now have a mistrial and I’m moving for
one.” The trial court denied the motion
and stated, “It’s not prosecutorial misconduct.” When defense counsel insisted it was, the
trial court stated, “Keep it down. Keep
it down.”

The record demonstrates none of the asserted incivility occurred in the
presence of the jury. Moreover, the
trial court’s comments fall well within its duty to control the proceedings. Further, in the course of the colloquy, the
trial court disagreed with defense counsel’s assertion the prosecutor had acted
inappropriately in the presence of the jury.
The trial court observed: “That
is not on the record at any point.”
Absent any contrary indication, we accept the trial court’s
characterization of the record. Thus,
nothing in this sidebar exchange amounts to judicial or prosecutorial
misconduct.

Garcia contends that, during defense argument, the prosecutor objected to
argument by Garcia’s counsel regarding Jose Garcia’s MySpace page as “improper”
and the trial court told defense counsel to “move” on. This incident occurred when defense counsel
asserted the People had been unaware of information on Jose Garcia’s MySpace
page such as his nicknames, “until we were in court and you saw it.” The prosecutor asserted defense counsel’s
argument was “incredibly improper.” The
trial court immediately admonished the jury:
“Ladies and gentlemen, its only argument of counsel. Listen carefully. You know what the evidence is. You heard the evidence.” Neither the prosecutor’s objection nor the
trial court’s ruling support Garcia’s assertion of misconduct.

Immediately after the trial court’s admonition, defense counsel argued,
“Lord knows what’s on [the private area of] Jose Garcia’s MySpace page.” The prosecutor asked to approach and, at the
sidebar, objected there had been no evidence presented regarding the public
versus the private aspects of the MySpace page.
Thus, defense counsel’s argument was “entirely improper. . . . She’s referring to things that are not in
evidence on purpose.” The trial court
agreed defense counsel’s argument asked the jury to speculate about what might
be on the private page, “so let’s move on.”
Again, the prosecutor’s objection and the trial court’s ruling appear to
have been proper. Consequently, no
misconduct appears.

Garcia next points to the prosecutor’s objection to defense counsel’s
argument that Garcia had no criminal record as misleading, which the trial court
sustained. Garcia asserts this ruling
was improper, given that the only evidence before the jury with respect to
Garcia’s criminal history consisted of his testimony he had been to prison
within the past 10 years. Garcia claims
that, because this testimony did not include the underlying criminal
conviction, defense counsel’s argument was proper. During a conference to discuss this matter,
the trial court became angry when the defense called the trial a “dog and
pony show” and responded, “The only dog and pony show here is you.”

The record reflects that, at the
sidebar, defense counsel asserted the trial court had excluded evidence of
Garcia’s prior convictions. Thus, there
was no evidence of any criminal convictions before the jury. The trial court ruled defense counsel could
argue there was no evidence of convictions before the jury but “don’t mislead
the jury.” The trial court stated,
“Whatever is in front of them is what you brought in front of them,” referencing
the fact that, on redirect examination, defense counsel asked Garcia whether he
had been to prison in the last 10 years and he responded he had. Defense counsel continued: “The court knows it’s appropriate to comment
on the evidence, and this sidebar has been a dog and pony show for the
prosecution.” The trial court
responded: “It’s not a dog and pony
show. The only dog and pony show here is
you.”

At the next break, after the jury
left the courtroom, the trial court stated:
“I understand that emotions run high, and I don’t want to say too
much until I calm down a little bit. But
I do want to say, I’ve gone out of my way to accommodate counsel in this
case. I go out of my way to see that the
defendants have a fair trial. [¶] I know the defense thinks that I’m all
prosecution oriented, but I know that [the prosecutor] thinks I’m all defense
oriented and . . . that tells me that I’m doing a fair job here. But for counsel to call this a dog and pony
show, you are contemptuous of this Court.
You are disrespectful of this Court.
And that’s all I’m going to say at this point in time.”

The denigration of defense counsel
appears to be nothing more than a reaction to defense counsel’s injudicious
“dog and pony show” comment. In any
event, given that Garcia, in fact, had numerous prior convictions, defense
counsel’s argument was misleading.
Further, because these proceedings occurred outside the presence of the
jury, no prejudice to Garcia appears.

Garcia next claims misconduct occurred during final argument when the
prosecutor referred to defense counsel’s argument regarding the private area of
Jose Garcia’s MySpace page and told the jury it was “inappropriate to speculate
about things that are outside of the evidence.”
At a sidebar conference, defense counsel objected the prosecutor had
used the word “improper seven times in about 10 minutes, most of it directed
towards me . . . .” Garcia’s counsel
asserted it was improper for the prosecutor to “act like we are trying to pull
the wool over their eyes or play some game.”
“[S]he’s left the impression . . . what we’re doing is shady . . .
.” Defense counsel claimed the defense
had the right to comment on the private portion of Jose Garcia’s MySpace
page. In mid argument, defense counsel
asked the prosecutor not to “snicker,” apparently at defense counsel’s
argument, and claimed the prosecutor repeatedly had snickered and had made
“vociferous head gestures” which were not reflected in the record. After further discussion, the trial court indicated
“this is only argument of counsel” and thereafter admonished the jury that
argument of counsel is not evidence.

It appears the prosecutor’s point, that it is inappropriate to comment on
matters outside the record, was well taken.
Thus, the prosecutor properly could refer to defense counsel’s argument
as improper. Moreover,
nothing in the record supports Garcia’s assertion the prosecutor’s repeated use
of the word “improper” resulted in undue prejudice to Garcia. Regarding the claimed snickering and head
gestures, Garcia failed to make a record in the trial court reflecting this
conduct. Even had the record borne out
Garcia’s claim in this regard, the conduct attributed to the prosecutor would
not have resulted in the denial of a fair trial.

3.
Conclusion.

We
have reviewed each of the claimed instances of judicial/prosecutorial name="SR;4747">misconduct and find none was prejudicial to Garcia’s right
to a fair trial. The overwhelming majority of
incidents cited by Garcia occurred outside the jury’s name="SR;11705">presence during sidebar conferences and thus could not have
prejudice the jury. (See >People v. Guerra,
supra, 37 Cal.4th at p. 1112; People
v. Burnett, supra, 12 Cal.App.4th at p. 475.)

In claiming otherwise, Garcia asserts the lack of civility
prevented the jury from an impassionate consideration of the href="http://www.fearnotlaw.com/">impeachment evidence, which included
whether Garcia produced the box cutter before or after he snatched Jose
Garcia’s chain, whether 4 or 14 individuals attacked the SUV and whether the
victims did not fight back, as they told the police on the night of the
incident, or whether Jose Garcia and Omar Garcia each landed at least one blow
and Arroyo “got off” 20 blows.

The first issue, regarding when Garcia produced the box cutter, was
thoroughly explored at trial. Buenrostro
and Arroyo testified Garcia tried to take Jose Garcia’s necklace while holding
the box cutter but each was impeached with prior testimony indicating Garcia
produced the box cutter after the
necklace was recovered by Jose Garcia.
Nothing in the claimed instances of judicial and/or prosecutorial
misconduct tainted the jury’s consideration of this evidence.

With respect to whether there were 4 or 14 attackers, the
defense was given free rein to develop this theory at trial. The defense elicited from the police officer
witnesses that, at the hospital, none of the witnesses said the attackers tried
to drag Jose Garcia from the SUV or that Jose Garcia or Omar Garcia threw a
punch. Further, none of the witnesses
mentioned 13 to 15 suspects, suspects on the roof of the SUV, suspects
surrounding the SUV, or trying to do things to other doors and windows beside
the driver’s door.

However, the defense theory that the witnesses embellished
the facts for trial by increasing the number of assailants was undercut by
statements written by Jose Garcia and Robert Ortiz on the photographic lineup
cards shown them at the hospital on the night of the incident. Each identified Garcia. Jose Garcia wrote Garcia was “the guy that
started the fight and snatched my chain. . . .
[T]he same guy was the one . . . with the blade that cut up my friend
[Arroyo] and jumped him with about 11 to 15 others that tried to break the car
windows and take me out.” Robert Ortiz
wrote Garcia was the individual who “basically started the whole confrontation,
pulled Jose Garcia’s chain, . . . , cut up Carlos Arroyo in multiple areas of
the body, about 15 or more suspects all rushed us and tried to pull . . . all
of us out of the car, threatened us all, and asked us for all our belongings.”

Given these written statements made on the night of the attack, any
incivility among the trial participants cannot be seen as a factor in the
jury’s rejection of the defense theory of the case.

Finally, the fact codefendant Castillo was not
convicted as charged, cited by Garcia as evidence the unpleasant exchanges between the prosecutor and
defense counsel, and between the trial court and defense counsel, affected how
jurors viewed the evidence, is more appropriately explained by
Castillo’s secondary role in the incident.


Garcia’s points on appeal are nothing more than a list of
every contentious discussion that occurred during the trial. name=B352028324092>Taken in context, none
of these incidents indicated bias or prejudice or created the impression the
trial court had allied itself with the prosecution and was no longer an
impartial arbiter. Even if improper, the
trial court’s remarks “ ‘fall short of the intemperate or biased judicial
conduct [that] warrants reversal.’
[Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 614, overruled
on another point in Melendez–Diaz v. Massachusetts (2009) 557 U.S. 305
[174 L.Ed.2d 314]; People v. Fudgname="sp_999_10">e (1994) 7 Cal.4th 1075, 1108.)

As noted in People
v.
Guerra,
supra, 37 Cal.4th 1067, name="______#HN;F45">“[The] defendant’s willingness to let the entire trial
pass without [a] charge of bias against the judge . . . strongly suggests [the
defendant’s claims of judicial misconduct] are without merit. [Citation.]”
(>Id. at
p. 1112.)

Indeed, the trial court issued
many rulings that favored Garcia. It
excluded from evidence Garcia’s statement to
the arresting officers, “Fuck, I got a kid.
I can’t go down for this.” The
trial court also excluded Garcia’s admission of gang membership to the arresting
officers, which became admissible as a prior inconsistent statement only after
Garcia testified.
At sentencing, Garcia personally thanked the trial court for affording
him a fair trial. We agree with Garcia’s
assessment.

In sum, viewed singularly or
collectively, the trial court’s actions were appropriate responses to the
various situations presented. None of
the comments constituted judicial misconduct, discredited the defense theory of
the case or created the impression the trial court had allied itself with the
prosecution. name="SDU_22">“Although there were instances of judicial exasperation and
unfiltered candor, the trial was protracted . . . . Much time was consumed on, at best,
collateral matter. Questioning by
counsel was imprecise, repetitious, and often obfuscating. Through it all the trial court was protective
of [defendant’s] rights . . . . We are
satisfied that [defendant was] afforded a fair trial.” (People v. Burnett, supra, 12 Cal.App.4th
at p. 476.)

name="SDU_29">name="citeas((Cite_as:_2011_WL_665326,_*12_(Ca">name="citeas((Cite_as:_2006_WL_3735562,_*9_(Ca">DISPOSITION

The
judgment is affirmed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS









KLEIN,
P. J.





We
concur:







CROSKEY, J.









ALDRICH, J.