People v. Parker

THE PEOPLE, Plaintiff and Respondent, v. GEORGE PARKER, Defendant and Appellant.

B281308

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

June 27, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MA066061)

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed.

Christine Dubois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant George Parker appeals from a March 2, 2017 order revoking his probation and sentencing him to prison. Defendant argues the trial court violated his due process right to an unbiased fact finder and improperly admitted hearsay and opinion evidence. We conclude defendant forfeited his due process argument; on the merits, there was no due process violation; and although there was evidentiary error, it was harmless. Accordingly, we affirm the order.

II. BACKGROUND

On June 1, 2015, defendant pled no contest to willfully inflicting corporal injury on a girlfriend. (Pen. Code, § 273.5, subd. (a).)¹ He admitted he inflicted great bodily injury. (§ 12022.7, subd. (e).) On June 22, 2015, the trial court imposed but suspended a six-year prison sentence and placed defendant on formal probation for five years. The court imposed a number of conditions on probation, including that defendant complete a 52-week domestic violence counseling program and pay fines, fees, and probation costs based on a schedule as determined by a financial evaluator.

On October 19, 2015, the court revoked probation and issued a bench warrant because it had received a report that defendant had been dismissed from his domestic violencecounseling program. On October 28, 2015, the court reinstated probation and ordered defendant to re-enroll in counseling.

On December 3, 2015, defendant appeared in court, provided proof of re-enrollment, and admitted that he had violated the terms and conditions of probation by failing to enroll in and timely complete his domestic violence counseling classes. The court revoked and reinstated probation.

On June 3, 2016, defendant appeared in court for a progress report and provided proof that he had completed 18 of 52 required classes. As defendant had been on probation for nearly a year, he should have been close to completing his 52 domestic violence counseling classes. The court therefore reminded defendant to "make better effort" in his classes, and ordered that if defendant were kicked out of his classes for an absence, he was to return to court the next business day.

On August 30, 2016, defendant appeared in court for another progress report and provided proof that he had completed 22 of 52 domestic violence counseling classes. The court ordered defendant to return to court on November 30, 2016, at 8:30 a.m.

On November 30, 2016, at 10:40 a.m., defendant had not appeared in court. The court therefore revoked defendant's probation and issued a bench warrant for defendant's arrest. Defendant later appeared in court at 1:30 p.m. The court noted that according to the probation officer's report, defendant had completed only 23 of his 52 required domestic violence counseling sessions and had not made a single payment toward his financial obligations. Defendant requested to be heard and stated that he earned approximately $200 to $300 a month. When asked by the court whether he could pay $10 a month, defendant stated, "Imean, I can pay that." He stated he had not made the payments because he had been paying his mother's bills for her.

On March 2, 2017, the court conducted a probation violation hearing. Three witnesses testified: a superior court financial evaluator, Gina L. Rogers; defendant; and defendant's mother, Mary Parker. The trial court asked questions of all three witnesses, which will be described further below. The trial court also considered a statement by an office manager at a domestic violence counseling program, which was included in a probation report.

Following the hearing, the court concluded that defendant had failed to comply with the trial court's order that he complete a domestic violence counseling program. By March 2, 2017, 20 months into his probation term, defendant had completed only 23 of 52 sessions. Defendant was twice dismissed from the program, once for nonpayment of the $25 per session fee (September 2015) and once for poor attendance (September 2016). On both occasions, defendant failed to promptly re-enroll.

Defendant also failed to comply with the court's order that he pay specified fines and fees and the cost of probation services. Defendant made no payments toward those financial obligations, even after his monthly payment was reduced from $25 to $10. The trial court found defendant had the ability to pay both the $25 per session cost of the domestic violence counseling program and the $10 per month installment toward his financial obligations.

The trial court also found that defendant had violated the conditions of probation by: failing to obey a court order requiring him to appear in court on the next business day after being dismissed from his domestic violence counseling program; failingto keep the probation department advised of his current contact information; being dishonest with a financial evaluator about his income; and failing to appear in court as ordered on November 30, 2016 at 8:30 a.m. Substantial evidence supported the trial court's noncompliance findings. Defendant does not challenge the sufficiency of the evidence.²

III. DISCUSSION

A. Neutral and Unbiased Fact Finder

Defendant argues that during the evidentiary hearing, the trial court demonstrated bias, prejudged the outcome, assumed the prosecutor's role, and cast aspersions and ridicule upon defendant. We conclude defendant forfeited this argument. On the merits, we have carefully reviewed the probation revocation hearing transcript and conclude there was no due process violation.

1. Defendant Forfeited this Argument

Defendant forfeited his judicial misconduct claims by failing to raise them in the trial court. (People v. Houston (2012) 54 Cal.4th 1186, 1220; People v. Blacksher (2011) 52 Cal.4th 769, 825.) Defendant argues any objection would have been futile, hence there was no forfeiture. Defendant asserts, "Not only would an objection be futile, an objection under these circumstances would be taken as a challenge to the court's authority and the result would be to push the court even further into an adverse position vis a vis [defendant]." We disagree. An objection would have alerted the trial court to defendant's concerns and given the court an opportunity to respond. (People v. Houston, supra, 54 Cal.4th at p. 1220.) This is not a case where the trial court was clearly hostile or made extensive, numerous disparaging remarks such that an objection would have been pointless. (Ibid.; People v. Williams (2017) 7 Cal.App.5th 644, 693.)

2. There was no Due Process Violation

a. applicable law

"'A criminal defendant has due process rights under both the state and federal Constitutions to be tried by an impartial judge.' [Citations.]" (People v. Peoples (2016) 62 Cal.4th 718, 788; accord, Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242.) This right extends to probation revocation hearings. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) A trial court may not advocate for either party, undertake the prosecutor's role, or cast aspersions or ridicule on witnesses. (People v. Cook (2006) 39 Cal.4th 566, 597; People v. Cummings (1993) 4 Cal.4th 1233, 1305, disapproved on another point in People v. Merritt (2017) 2 Cal.5th 819, 831.) A trial court must treat litigants and witnesses with appropriate respect. (People v. Carlucci (1979) 23 Cal.3d 249, 258.) A court must "refrain from advocacy and remain circumspect in its comments on the evidence, treating litigants and witnesses with appropriate respect and without demonstration of partiality or bias. [Citations.]" (Ibid.)

A trial judge in a court or jury trial also has the duty and the discretion to control his or her courtroom. (People v. Snow (2003) 30 Cal.4th 43, 78; People v. Fudge (1994) 7 Cal.4th 1075, 1108.) That duty and discretion includes the undisputed right to examine witnesses in order to elicit material facts or to clarify confusing or unclear testimony. (People v. Cook, supra, 39 Cal.4th at p. 597; People v. Carlucci, supra, 23 Cal.3d at p. 255;see Cal. Const., art VI, § 10.³) As the court in Carlucci explained: "'[A] judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts. Within reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed." [Citation.]'" (People v. Carlucci, supra, 23 Cal.3d at p. 256.) It is not misconduct merely to examine witnesses at considerable length. (People v. Rigney (1961) 55 Cal.2d 236, 243; People v. Corrigan (1957) 48 Cal.2d 551, 559.) Moreover, a judge may elicit evidence unfavorable to a defendant so long as the judge's questions are designed to fairly and impartially establish the truth. (People v. Rigney, supra, 55 Cal.2d at pp. 243-244.)

b. standard of review

The question...