(Super. Ct. No. 09F07633)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Kenneth Lynn Smith, Jr., guilty of second degree robbery (Pen. Code, § 211), and misdemeanor false representation of identity to a peace officer (id., § 148.9, subd. (a)). A prior prison term allegation was found true. (Id., former § 667.5, subd. (b).) Sentenced to a six-year state prison term, defendant appeals, contending the trial court was not impartial, rendering the trial fundamentally unfair under the Sixth and Fourteenth Amendments of the United States Constitution. Concluding that the trial court acted impartially and without misconduct, we shall affirm the judgment.
On October 9, 2009, Saul Morales cashed his $620 paycheck at the A-1 Liquor Store in South Sacramento. Once Morales cashed his check and put the money in his pocket he went outside to the car to wait for his brother, who was still in the store. While Morales waited, two men approached and began punching him in the face.*fn1 As one of the men punched Morales, the other man took the money from Morales's pocket; the two men then ran off.
During their investigation, the police learned that the A-1 Liquor Store had a surveillance camera that recorded the incident. After reviewing the video, Morales identified the two culprits. Later, in a field show up, Morales identified defendant as one of the men who had beaten him and taken his money. At trial, Morales again identified defendant.
Defendant argues the trial court acted in a partisan way, which amounted to a fundamentally unfair trial under the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, defendant contends the trial was unfair because (1) the trial court's and the jury's extensive questioning of witnesses amounted to adding two party litigants; (2) the trial court rewrote Evidence Code section 772;*fn2 and (3) the trial court's refusal to allow defense counsel to review the jury's questions before they were posed to witnesses (a) allowed in inadmissible evidence, and (b) denied defendant the right to present a defense. We conclude that none of defendant's arguments have merit.
Prior to the commencement of trial, the trial court explained to counsel the procedure that would be followed. Specifically, the trial court would allow the attorneys to have "two opportunities to question the witness," giving the attorneys a direct, a cross-, a redirect, and a recross-examination. Thereafter, the trial court would solicit written questions from the jurors. The trial court would then "state the question . . . to the witnesses on behalf of the juror," if the question did not call for inadmissible evidence. If the trial court believed that the juror question raised an issue for attorney discussion, the court would confer with the attorneys at sidebar. The trial court noted that 95 percent of the time, it would ask the juror's question without the "necessity of consulting with the lawyers." The trial court explained that, if it asked a juror's question, the attorneys could "fairly assume that I [(the trial judge)] don't feel that the question is objectionable." Nevertheless, the trial court stated that if an attorney did have an objection to a juror's question, the attorney could still object. Additionally, the trial court would allow the attorneys to object to a juror's question outside the jury's presence, "usually [at] the next recess"; if the court was persuaded it was "wrong in asking the question or part of the answer was, upon reflection, inadmissible," the court "would consider striking testimony and admonishing the jury or taking some measure along those lines." Following juror and court questions, the court would allow the attorneys to continue questioning the witnesses.
After the jury was selected, the trial court explained to the jury the same trial procedure that the court had explained to the attorneys. The court also told the jurors, sua sponte, that the court may "discuss the question with the attorneys and decide whether it may be asked. Do not feel slighted or disappointed if your question is not asked. Your question may not be asked for a variety of reasons, including the reason that the question may call for an answer that is inadmissible for legal reasons." (CALCRIM No. 106.) The court continued, "Also, do not guess the reason your question was not asked or speculate about what ...