THE PEOPLE v. ADRIAN CHAVEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ADRIAN CHAVEZ, Defendant and Appellant.

B216450

-- May 09, 2011

Law Offices of Adrian M. Baca and Adrian M. Baca for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance Winters and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Adrian Chavez appeals from the judgment entered following his conviction of first degree murder with true findings that he committed the offense for the benefit of a criminal street gang and a principal personally used a firearm in the murder.   Before this court, appellant argues that insufficient evidence supported his first degree murder conviction under the natural and probable consequences doctrine.   Appellant further contends that his trial counsel had a conflict of interest and was ineffective because counsel failed to:  (1) seek a continuance;  (2) object to certain gang evidence;  (3) file a motion to seek discovery of police personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537–538 (Pitchess );  and (4) call a gang expert witness.   Finally, appellant asserts the trial court was biased against him.   As we shall explain none of these claims has merit, and accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shooting

On the night of June 24, 2007, the victim, Salvador DeAvila drove into the parking lot of Tam's Burgers in Paramount with Jose Maszano, Antonio Palomares, and Fausto Rojo. DeAvila dropped the three passengers off in the parking lot and drove in to find a parking spot.   As the three men walked into the parking lot, a white BMW almost hit Maszano.   Maszano, who was intoxicated, and the driver of the BMW, Yashie Navarro, briefly argued.   Maszano then leaned on the BMW's rear bumper and began talking on his cell phone.   Navarro told Maszano to “get the fuck off his car.”   Maszano said “okay” and walked away.

Appellant walked up to Maszano and told him “This is Paramount Varrio, this is my Varrio.   Get the fuck out of here.”   Appellant identified himself as “Evil.”

Maszano responded “we ain't going nowhere.”   Appellant punched Maszano on the side of the chin and knocked him unconscious.   Appellant then reached for Maszano's cell phone and began to go through Maszano's pockets.

Palomares, who arrived with Maszano, tried to push appellant away from Maszano.   Another man approached Palomares and said either “[d]o you know who he is?” “[d]on't be touching him” or “[d]on't be touching Evil.” The person then hit Palomares in the nose causing him to lose his contact lens.   Palomares started to throw punches to defend himself.

DeAvila left his car and headed toward the fight to help his friends.   Rodriguez, later identified as a member of appellant's gang, shot DeAvila.   DeAvila collapsed and fell to the ground.   Rodriguez continued shooting at DeAvila.   DeAvila died after receiving six gunshot wounds, including a shot to the head.

B. Evidence and Trial

After the shooting, Rojo and Palomares identified appellant in a six-pack display as the person who hit Maszano.   They also identified appellant at the preliminary hearing and at trial.

On June 29, 2007, Yashi Navarro contacted the Sheriff's department after hearing through the grapevine that the DeAvila's family believed Navarro shot and killed DeAvila.   Navarro was interviewed by Detective Smith.   Navarro told Detective Smith that he was not involved in the shooting and did not see the shooter.

On July 26, 2007, Los Angeles Police Department Homicide Detectives Joseph Ramirez and Raymond Lugo interviewed Navarro at the homicide bureau.   Navarro initially stated that he did not see the shooter, but then said he was not telling the truth because he was afraid of the Paramount Varrio Gang. Navarro gave a statement to the detectives that was recorded and played for the jury at trial.   In this statement, Navarro told detectives that he knew appellant was a member of the Paramount Varrio Gang and goes by the moniker “Evil.” Navarro stated that he saw codefendant Luis Rodriguez, whom Navarro knew as a member of the Paramount Varrio Gang with the moniker “Soldier” shoot DeAvila in the head with a revolver.   Navarro identified both appellant and Rodriguez in photographic displays.

Appellant was arrested and charged with the murder of Salvador DeAvila (Pen.Code, § 187, subd. (a)), with the further allegation that it was committed for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)(1)(c)), and by the personal and a principal's discharge of a firearm causing the death (Pen.Code, § 12022.53, subd. (d) and subd. (e)(1)).1  There was a further allegation of a prior conviction of a serious or violent felony or juvenile adjudication (Pen.Code, §§ 1170.12, subds.(a)-(d) and 667, subd. (b)) and that he suffered two prison priors (Pen.Code, § 667.5, subd. (b)).

At trial, Navarro denied knowing anyone known as “Evil” or “Soldier” and denied seeing anyone shoot DeAvila.   Navarro testified that he was pressured to say things by the detectives who offered him financial compensation and help with his career if he would make a statement.

Detectives Ramirez and Lugo denied threatening Navarro, promising him financial compensation or offering to help with his career.

Detective Gabriela Herrera testified as a gang expert.   Detective Herrera testified that the Paramount Varrio 13 Gang consisted of approximately 100 members that engaged in vandalism, robberies, assaults and murders.   Detective Herrera testified that both appellant and codefendant Luis Rodriguez were members of the Paramount Varrio 13 Gang. Appellant and codefendant Rodriguez had numerous gang tattoos.   The detective testified that Tam's Burgers was within the Paramount Varrio 13 Gang territory.   Based on a hypothetical mirroring the events of this case, Detective Herrera stated that the crime was likely committed for the benefit of a criminal street gang.

C. Verdict, Sentencing and Appeal

A jury found appellant guilty of first degree murder (Pen.Code, § 187, subd. (a)), with findings that he committed the offense for the benefit of a criminal street gang (Pen.Code, § 186.22, subd. (b)(1)(C)) and that a principal personally used a firearm and personally and intentionally discharged a firearm causing death (Pen.Code, § 12022.53, subds.(b), (c), (d), & (e)(1)).   The trial court sentenced appellant to 75 years to life in prison.   Appellant filed a timely notice of appeal.

DISCUSSION

In this court, appellant argues that his murder conviction was not supported by sufficient evidence.   Appellant further contends that his trial counsel had a conflict of interest and was ineffective because counsel failed to:  (1) seek a continuance;  (2) object to certain gang evidence;  (3) file a Pitchess motion;  and (4) call a gang expert witness.   Appellant also claims the trial court was biased against him.   His claims do not amount to reversible error.

I. Sufficient Evidence

Appellant argues that there was insufficient evidence to support his first degree murder conviction under the natural and probable consequences doctrine.   We disagree.

Substantial evidence is evidence which is “reasonable in nature, credible, and of solid value.”  [Citation.]  “In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”  [Citation.]  We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence.  [Citation.]  “The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’  [Citation.]”  (People v. Medina (2009) 46 Cal.4th 913, 919 (Medina );  italics in original.)

Appellant's criminal liability was premised on the natural and probable consequences doctrine.   The prosecutor's theory was that the murder of DeAvila was the natural and probable consequence of appellant's assault or attempted robbery of Maszano.

Liability under the natural and probable consequences doctrine “is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.”  (People v. Nguyen (1993) 21 Cal.App.4th 518, 535.)   The California Supreme court in Medina observed “ ‘to be reasonably foreseeable “[t]he consequence need not have been a strong probability;  a possible consequence which might reasonably have been contemplated is enough․”  [Citation.]’   A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case ․ and is a factual issue to be resolved by the jury.  [Citation].”  (People v. Medina, supra, 46 Cal.App.4th at p. 920.)

Here, the evidence supports a finding that the shooting was a natural and probable consequence of the assault and attempted robbery of Maszano.   The evidence showed that appellant told Maszano “this is Paramount Varrio.   This is my varrio.   Get the fuck out of here.”   When Maszano refused, appellant knocked him unconscious, reached for his phone and went through his pockets.   When Maszano's friend Palomares attempted to intervene, someone told Palomares “Don't be touching Evil,” referring to appellant's gang moniker.   This escalated into a second fight between Palomares and the other man.   Then DeAvila came over to help his friend, Rodriguez, a fellow member of appellant's gang, shot and killed him.

Appellant argues that the shooting was not a reasonably foreseeable consequence of the assault and attempted robbery because Maszano, Palomares and DeAvila were not members of a gang.   Appellant also argues that the natural and probable consequences doctrine is inapplicable because the record is devoid of evidence that appellant knew Rodriguez was present or possessed a firearm.   We find these arguments unpersuasive.   The prosecutions gang expert, Detective Herrera testified that appellant and Rodriguez were both members of the Paramount 13 Varrio Gang. The primary activities of the gang include robberies, assaults and murders.   She testified that if an outsider disrespects a gang member, for example, by refusing to leave the gang's territory or interfering with a robbery, a violent response, such as an assault or murder, will likely result.

Even if appellant had no knowledge that Rodriguez was present or possessed a gun, the jury could still find the murder to be a foreseeable consequence of a gang confrontation.  “[P]rior knowledge that a fellow gang member is armed is not necessary to support a defendant's murder conviction as an aider and abettor.”  (Medina, supra, 46 Cal.4th at p. 921.)  “[A]lthough evidence indicating whether the defendant did or did not know a weapon was present provides grist for argument to the jury on the issue of foreseeability of a homicide, it is not a necessary prerequisite.”  (People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) In the context of a gang altercation, a jury could rationally conclude that a conflict between non gang members who disrespected a gang's territorial boundaries and interfered with an attempted robbery could escalate into a fatal confrontation.

People v. Olguin (1994) 31 Cal.App.4th 1355 is illustrative.   In Olguin a confrontation arose between three gang members and the victim who may or may not have been a member of a defunct gang.  (Olguin, supra, 31 Cal.App.4th at p. 1367, overruled on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) The gang members felt disrespected because the victim defaced the gang's graffiti.  (Olguin, supra, 31 Cal.App.4th at p. 1367.)   The conflict escalated from shouting to a punch when gang member Mora punched the victim.  (Ibid.) When the victim got up, he was shot by another gang member.  (Ibid.) The court held that the shooting was a foreseeable consequence of Mora's punch.  (Id. at p. 1380.)

Similarly, in this case, appellant initiated the confrontation with Maszano that foreseeably led to the shooting of DeAvila.   It was reasonably foreseeable that Maszano's friends, Palomares and DeAvila, would come to Maszano's aid.   It was also reasonably foreseeable that other gang members would act violently towards anyone who challenged appellant's authority or attempted to stop the robbery.   Aiders and abettors are “responsible for the harm they have naturally, probably, and foreseeably put in motion.”  (People v. Avila (2006) 38 Cal.4th 491, 567.)

Appellant knowingly participated in a fight with Maszano that escalated into a deadly shooting by one of appellant's fellow gang members.   Consequently, we conclude sufficient evidence existed to find the shooting was a natural and probable consequence of the assault and attempted robbery.

II. Ineffectiveness of Counsel

Appellant argues that trial counsel was ineffective for failing to:  (1) file a motion for a continuance;  (2) object to evidence concerning appellant's gang membership;  (3) file a Pitchess motion;  and (4) call a gang expert to testify at trial.   We disagree.

“Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’  [Citation].  ‘[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that ‘courts should not second guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’  [Citation.]  ‘Tactical errors are generally not deemed reversible, and counsel's decision making must be evaluated in the context of available facts.’ ”  (People v. Weaver (2001) 26 Cal.4th 876, 925–926.)  “No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.   Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”  (Strickland v. Washington (1984) 466 U.S. 668, 688–689.)

A. Motion for Continuance

Appellant argues that counsel rendered ineffective assistance of counsel for failing to ask for a continuance so that counsel could interview witnesses.   After the shooting, police officers took statements of witnesses present in Tam's parking lot.   The addresses and telephone numbers of witnesses were redacted from police reports.   On the eve of trial, defense counsel stated that he was having trouble locating some of the witnesses.   Appellant argues that trial counsel was ineffective by failing to request a continuance to locate, interview and subpoena these witnesses.

“Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record.   Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment seem appropriate under the circumstances.  [Citation.]”  (People v. Anzalone (2006) 141 Cal.App.4th 380, 394.)

Here, the record does not indicate why trial counsel did not ask for a continuance or ultimately call these witnesses who may or may not have been available.   While on the eve of trial defense counsel stated that he believed these witnesses could provide exculpatory testimony, counsel provided no basis for this assertion.   Furthermore, prosecution counsel responded to this assertion by stating that none of the witnesses could identify the shooter.   Counsel may have made a tactical choice to not seek a continuance, or counsel may have contacted these witnesses and found that they were not advantageous to the case.   We cannot say, as a matter of law, based on the record before us on appeal that counsel displayed incompetence.

As the California Supreme Court has often noted, claims such as those made by appellant are better suited to a petition for writ of habeas corpus than to an appeal:

“[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267), where relevant facts and circumstances not reflected in the record on appeal, such a counsel's reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel's ‘representation fell below an objective standard of reasonableness,’ and whether ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’  [Citation.]”  (People v. Snow (2003) 30 Cal.4th 43, 111;  see, e.g., In re Cordero (1988) 46 Cal.3d 161, 249 [habeas corpus proceeding exploring whether defense counsel failed to conduct reasonable factual investigation of defendant's potential defense of intoxication];  In re Avena (1996) 12 Cal.4th 694, 749 [habeas corpus proceeding exploring whether defense counsel should have investigated and presented defense based on defendant's drug intoxication during crimes and whether he should have challenged admission of taped confession].)   The Supreme Court made clear in People v. Mendoza Tello, supra, 15 Cal.4th 264 that an appellate court should not “set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed․”  (Id. at p. 267.)   Here, we cannot determine the merits of appellant's assertions against defense counsel.

Furthermore, appellant has not shown the requisite prejudice.   There is no evidence in the record indicating that these witnesses had any information that may have affected the outcome.   Therefore, there is no probability that but for seeking a continuance to interview these witnesses, the result of the proceeding would have been different.

B. Failure to Object

Appellant next contends that trial counsel was ineffective for failing to object to Navarro's statement to the police that appellant was a gang member.   This statement was recorded by Detectives Lugo and Rodriguez at the police station.   The statement was recorded and played for the jury at trial.   In the statement, detectives referred to appellant by his gang moniker “Evil.” Detectives asked Navarro whether appellant (“Evil”) was a gang member.   Navarro responded “To my knowledge, yes.”   Detective Lugo then asked Navarro “Yes, and what gang is he a member of?”   Navarro answered “Paramount Varrio.”

Appellant argues that trial counsel failed to object to this statement for a lack of foundation as to whether Navarro had knowledge as to whether appellant was a gang member.

Appellant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.   There is no indication appellant was prejudiced by the Navarro's admission that appellant was a member of a gang.   At trial, the prosecution introduced ample evidence to show appellant was a gang member including Detective Herrera's testimony and the tattoos of Paramount Varrio on appellant's body.   Therefore, it is not probable that a more favorable verdict would have been reached had counsel objected.

In addition, this statement was admissible pursuant to Evidence Code section 1235 as a prior inconsistent statement.   Prior to this recording being introduced, Navarro stated that he did not know appellant was a member of a gang.   We find that trial counsel did not render ineffective assistance of counsel when he failed to object to this evidence.

C. Failure to file Pitchess Motion

Appellant argues that counsel rendered ineffective assistance for failing to file a Pitchess motion.  (See Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537–538.)   In Pitchess, the California Supreme Court held that a criminal defendant is entitled to discovery of the personnel files of officers if the information contained in the records is relevant to the defendant's ability to defend against the charge.  (Ibid.) Subsequently, legislation was enacted to allow for disclosure of relevant information against a legitimate expectation of the officer's privacy.  (Evid.Code, §§ 1043–1047.)   Pursuant to Evidence Code section 1043, subdivision (b)(3), a defendant may file a written motion to obtain the personnel records if it is material to the facts of the case.   The trial court determines whether there is good cause for the disclosure.  (Evid.Code, §§ 1043, 1045.)   Good cause for discovery exists when the defendant demonstrates (1) materiality of the requested material to the subject matter of the pending action, and (2) a reasonable belief the agency has the type of information sought.  (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016–1019.)

Appellant argues that counsel should have filed a Pitchess motion to obtain the personnel files of Detectives Lugo and Ramirez.   At trial, witness Yashi Navarro accused Detectives Lugo and Ramirez of inducing him to make statements against appellant and codefendant Rodriguez with financial compensation and offered to help him with his career.   In addition, appellant contends that the detectives turned off a recording device when witnesses Palomares and Rojo were shown a six-pack photo line up to identify the defendants.

To claim ineffective assistance of counsel a defendant must first establish that his counsel's performance was deficient under an objective standard of professional competency, and that there is reasonable probability that, but for counsel's errors, a more favorable determination would have resulted.   (People v. Holt (1997) 15 Cal.4th 619, 703.)   If the defendant makes an insufficient showing on either one of these requirements, the claim fails.   (Ibid.) If we assume without deciding that counsel's performance was deficient there must be a reasonable probability that a more favorable determination would have resulted from filing a Pitchess motion.

Here, Navarro testified at trial that Detectives Lugo and Ramirez offered him compensation for his testimony.   However, during the same cross examination, appellant's counsel asked Navarro “Did you lie to tell [the detectives] what you thought they wanted to hear?”   Navarro answered “I don't believe so.”   The court asked for clarification and Navarro answered “No.” There is no indication Navarro's testimony was tainted by any promise of compensation.

In addition, appellant does not claim the personnel files of these two detectives contained any information that would be material to the case or would have affected the verdict.   Accordingly, appellant cannot show a reasonable probability that a more favorable determination would have been made had his counsel brought a Pitchess motion.

D. Expert Testimony

Lastly, appellant argues that counsel was ineffective for failing to call a gang expert to rebut the testimony of the prosecution's gang expert, Detective Herrera.

Defense counsel need not present expert testimony that is additional to that given by prosecution experts.  (People v. Adkins (2002) 103 Cal.App.4th 942, 950 [failure to present testimony of independent pathologist to refute prosecution evidence was not shown to be ineffective assistance where record did not indicate whether defense counsel consulted pathologist or why he decided not to present one at trial].)

There is no evidence that calling a gang expert to counter Detective Herrera's testimony would have affected the outcome of the trial.   Appellant hypothesizes that a defense gang expert would dispel Detective Herrera's assertions that gang membership is for life and preventing a gang member from robbing a civilian would lead to an assault or murder on the intruder.   However, there is no evidence that a gang expert would rebut this testimony.   In any event, during cross-examination, defense counsel elicited testimony from Detective Herrera that gang members could disavow their gang membership by changing their lifestyle.   Appellant has not shown how additional evidence on this issue would likely change the outcome of his trial.   Appellant must show “a reasonable probability that, but for the deficient performance, the outcome of the trial would have been more favorable to defendant.   The burden of proving ineffective assistance of counsel is with the defendant.”  (People v. Kaurish (1990) 52 Cal.3d 648, 689.)   Appellant cannot establish that such evidence could be produced or lead to a different result.

III. Conflict of Interest

Appellant argues his Sixth Amendment rights were violated because his trial attorney had a conflict of interest.

A. Facts

Appellant and codefendant Rodriguez were represented by separate counsel at the preliminary hearing, pretrial proceedings and at trial.   After the trial was completed, appellant retained new counsel.   Appellant's counsel filed a motion for a continuance before sentencing and attached documents that indicated appellant's trial attorney charged codefendant Rodriguez $15,000 for legal services.   At the preliminary hearing held on September 19, 2007, appellant and codefendant Rodriguez were represented by separate counsel.   In papers attached to the motion for a continuance there appears to be receipts from codefendant Rodriguez to appellant's trial counsel.   Two of the three checks totaling $10,000 were dated November 20, 2007, and September 1, 2007.   During the continuance motion the prosecutor stated the following:

I can tell you that both Mr. Rodriguez and [appellant] had separate attorneys at the time of the prelim.   He [sic ] had separate attorneys during the pendency of the case in superior court, and they had separate attorneys during this trial.

There was a mention of a side bar between myself, [trial counsel] and Judge Cheroske in Department D where [trial counsel] was attempting to come into court and represent both defendants.   I told the judge, “Look, that's not a good idea because I know that they're going to have conflicting and opposing theories in trial”․ and Judge Cheroske immediately put a stop to that and APD was appointed for Mr. Rodriguez.

There's something fishy going on, but I don't believe it rises to the level that puts the jury's verdict into jeopardy.

The court denied the motion for a continuance.

B. Analysis

“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution.   This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel's loyalty to his or her client.”  (People v. Doolin (2009) 45 Cal.4th 390, 417.)   A conflict arises when an “attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.  (See generally ABA, Model Rules Prof. Conduct (1983) rule 1.7 and com. thereto․)”  (People v. Bonin (1989) 47 Cal.3d 808, 835.)

In People v. Doolin, supra, the California Supreme Court determined that conflict of interest claims under the California Constitution are to be analyzed under the standard for federal conflict of interest claims enunciated by the United States Supreme Court in Mikens v. Taylor (2002) 535 U.S. 162 (Mikens ).

“In [Mikens ], the high court confirmed that claims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under Strickland, supra, 466 U.S. at page 694 ․ generally require a defendant to show (1) counsel's deficient performance, and (2) a reasonable probability that, absent counsel's deficiencies, the result of the proceeding would have been different.   [Citations.]  In the context of a conflict of interest claim, deficient performance is demonstrated by a showing that defense counsel labored under an actual conflict of interest ‘that affected counsel's performance –as opposed to a mere theoretical division of loyalties.’  [Citations.]”  (Doolin, supra 45 Cal.4th at pp. 417–418, italics in original.)

Here, appellant fails to show an actual conflict of interest adversely affected his lawyer's performance.   The alleged limited representation of codefendant Rodriguez was addressed prior to the preliminary hearing when the trial court ordered separate counsel for Rodriguez.   The record indicates trial counsel demonstrated zealous advocacy on behalf of appellant throughout trial.   There is also no evidence the result could have been different absent these circumstance.   Accordingly, we reject appellant's claim that his attorney had a conflict of interest that violated his Sixth Amendments rights.

IV. Judicial Misconduct

Appellant contends the trial court was biased against him and was aligned with the prosecutor.  “As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial.”  (People v. Sturm (2006) 37 Cal.4th 1218, 1237.)   However, a defendant's failure to object does not preclude review “when an objection and an admonition could not cure the prejudice caused by” such misconduct, or when objecting would be futile.  (See People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.)

Appellant first argues the court was biased because the judge placed a time limit on his opening statement and did not place any time limit on the prosecutor or the alternate public defender.   The judge informed counsel he had five minutes to complete his opening arguments and then said he could not continue after the five minutes elapsed.

“[I]t is ‘the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.’ ”  (People v. Strum, supra, 39 Cal.4th at p. 1237.)

The judge had discretion to limit the time of opening statements.   Here, appellant's opening statement consisted of approximately 15 pages of transcript whereas the prosecutor's opening statement consisted of 10 pages and Rodriguez's opening statement consisted of four pages.   Appellant did not object below and fails to show any prejudice resulted from the time restriction.

Second, appellant argues that the court vouched for a key witness during cross examination.   The following exchange occurred during the cross-examination of Fausto Rojo about his testimony that appellant knocked Maszano unconscious:

Q [Appellant's attorney]:  You never got a chance to help him [Maszano] up?

A [Rojo]:  I couldn't lift him all the way up.   He was too heavy.   He was knocked out cold.

Q [Appellant's attorney]:  How much did he weigh?

[Prosecutor]:  Objection.   Relevance.

The Court:  Sustained.

Q [Appellant's attorney]:  Well, you claim that [appellant], with one punch, knocked a guy completely out?

The Court:  He didn't claim it.   He said it.   That's what happened.

Out of context, the court's statement:  “He didn't claim it.   He said it.   That's what happened.” is troubling—arguably, it appears as if the court is vouching for accuracy of the witness.   However, when read in context of the entire cross-examination – a different picture emerges.   Indeed, prior to this exchange cited by appellant, during the same cross examination of Rojo by appellant's attorney, the judge made a similar remark:

Q [Appellant's attorney]:  Okay. Let's talk about the situation where you claim that you saw [co-defendant] Adrian Chavez approximately four feet in front of you.

The Court:  He didn't say he claimed he saw him.   He said he saw him.   So let's rephrase the question.

In this instance the judge clearly articulated that he did not want the attorney to use the word “claim.”   This remark by the judge which occurred before the statements appellant complains about on appeal, provides the proper context for the statement at issue.   It supports the reasonable inference that the judge was not vouching for the witness, but rather asking appellant's attorney to rephrase questions to accurately characterize the witness' earlier testimony, and thus does not prove prejudicial judicial bias or misconduct.

Next, appellant contends that the court allied itself with the prosecution because it sustained the following objection during appellant's cross examination of Detective Ramirez:

Q: [Appellant's attorney]:  At any time during your investigation did you learn or acquire any evidence that my client, Adrian Chavez, encouraged the shooter, whoever that may have been, to shoot Mr. DeAvila?

[Prosecutor]:  Your Honor, I'm going to object, this calls for a conclusion.   A legal conclusion.

The Court:  Well, its—

[Prosecutor]:  And it's vague.

The Court:  No, sustained.

While we do not agree that the question called for a legal conclusion, the term “encouraged” is vague and therefore the court would have properly sustained an objection on the grounds of vagueness.   In any event, we are not convinced that this exchange was biased or aligned with the prosecution.

Fourth, appellant contends that the trial court was biased because the court sustained its own objection.   Appellant's attorney asked Detective Herrera whether she acquired any personal knowledge as to whether members of the Compton Varrio Segundo Gang were present at Tam's the night of the shooting.   The court made the following objection:

The Court:  All right.   It's irrelevant.

[Appellant's attorney]:  You may answer.

The Court:  No, it's irrelevant.

[Appellant's counsel]:  Oh, did you make an objection.

The Court:  Yes, I not only made an objection, I sustained it.

It is well established that where improper questions are asked, the court acts within the scope of its duty in refusing to allow them to be answered, even though no objection has been made by a party.  (People v. White (1954) 43 Cal.2d 740, 747.)   Here, the judge properly limited irrelevant testimony as to whether members of a gang to which appellant and Rodriguez did not belong may have been present at Tam's. Appellant made no offer of proof explaining why this evidence was relevant.   In addition, no objection was made nor has appellant asserted prejudice.

Finally appellant contends the trial judge engaged in disparate treatment of his attorney.   Specifically, the court told appellant's attorney to “move on” after sustaining an objection.   We find it is fully within the judge's discretion to ask an attorney to move on to promote “the expeditious and effective ascertainment of the truth regarding the matters involved.”   (People v. Sturm, supra, 37 Cal.4th at p. 1237.)

In Miller v. Western Pac. R. Co. (1962) 207 Cal.App.2d 581, the court rejected 11 claims of judicial misconduct by concluding:  “the record indicates that the appellants were accorded a fair and impartial trial and that the trial judge presided with courtesy and patience.   The record is devoid of any indication that the appellants were not given a full opportunity to present their case.   Each of the claimed instances of prejudicial error, when read in their proper context, disclose that they arose in conjunction with the court's discussion of the propriety of the admissibility of certain evidence, the validity of objections thereto, the reasons for its rulings, or the clarity of the language in which a question was framed.”  (Miller v. Western Pac. R. Co., supra, 207 Cal.App.2d at p. 606.)

The California Supreme Court has held, “[A][d]efendant [is] entitled to a fair trial but not a perfect one.”  (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)   Appellant contends the cumulative effect of these errors resulted in an unfair trial.   We disagree.   There has been no showing of cumulative prejudicial error.   Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the process or accrue to appellant's detriment.  (People v. Sanders (1995) 11 Cal.4th 475, 565.)

In addition, at the end of the trial, the trial court instructed the jury to disregard anything the court said during the trial as an indication of what the court thinks about the facts, the witnesses or what the verdict should be.   Such instructions cured any errors complained of, if any.  (Peterson v. Rieschel (1953) 115 Cal.App.2d 758, 764;  Mercado v. Hoefler (1961) 190 Cal.App.2d 12, 23.)   The record does not indicate any bias against appellant.   Appellant was accorded a fair and impartial trial.   We find that none of these incidents, whether considered individually or together, rises to the level of prejudicial misconduct.

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

1.  FN1. Rodriguez was also arrested and charged with first degree murder and gang and weapons enhancements.   Rodriguez was convicted and his conviction was affirmed on appeal by this court in December 2009 (see case No. B210232).

WOODS, J.

PERLUSS, P.J. ZELON, J.

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