Filed 3/27/14 P. v. Aguirre CA1/5
                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,                                       A136522
                   v.
CESAR AGUIRRE,                                                           (Alameda County
                                                                         Super. Ct. No. C168733)
         Defendant and Appellant.

         Appellant Cesar Aguirre was placed on felony probation after a jury convicted him
of vandalism causing more than $400 in damage, based on the destruction of plate glass
windows during an Occupy Oakland demonstration. (Pen. Code, § 594, subds. (a),
(b)(1).) He contends the judgment must be reversed because the trial court engaged in
judicial misconduct by questioning witnesses in a manner suggesting bias in favor of the
prosecution. He also challenges the court’s imposition of probation investigation and
probation supervision fees, noting the order was made without an express determination
of his ability to pay. We affirm.
                                                  BACKGROUND
         On the night of November 2-3, 2011, Frank Ogawa Plaza in downtown Oakland
was the site of a protest by members of the “Occupy” movement. About 300-400 people
were in the plaza. Officer Tedesco of the Oakland Police Department was part of a
tactical team assisting “skirmish lines” of other officers set up in response to the protests

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and the attendant vandalism and violence. At about 1:00 a.m., Tedesco and his team
were inside a multilevel parking garage near the plaza that they had entered to look for
protesters.
       From his vantage point on either the third or fourth level of the parking structure’s
stairwell, Tedesco could see the police department’s Internal Affairs Division (IAD) and
recruiting office, which were located about 70 yards away on the plaza. The glass on the
lower floor windows and doors on that building had been boarded up from the inside, a
routine precaution taken during protests in the plaza to prevent entry into the offices.
Although it was dark, that area of the plaza was illuminated by streetlights and lights that
were on in the upper floors of the building.
       Tedesco noticed appellant walking by himself from the inside of the plaza toward
the IAD and recruiting office, carrying a red folding chair. He was wearing a black,
long-sleeved hoodie with red and black flannel inside the hood, black jeans, a white dust
mask, black glasses that appeared to be goggles, and a black backpack with what looked
like an orange stripe on one side. Suspicious, Tedesco called out appellant’s description
to the other officers in his squad. He saw appellant swing the chair several times into the
windows of the IAD/recruiting offices, shattering the glass and sending glass shards
flying through the air. Appellant dropped the chair and started pushing against one of the
boarded-up doors, but was unable to enter the building.
       Appellant moved away from the IAD/recruiting offices and joined a crowd of
people near the fountain, leaving the folding chair behind. Another protester picked up
the red chair and put it in the fountain, and it was ultimately retrieved by the police.
Tedesco and his team began walking down the stairs toward the skirmish line below, with
Tedesco keeping his eyes on appellant as best he could. When they came out of the
parking structure, Tedesco saw appellant sitting in a group of about five people, wearing
the same attire as before but not carrying the chair. Tedesco told his supervisor appellant
was the person who had broken the windows and the supervisor summoned an arrest
team. Tedesco did not participate in the arrest himself because he was carrying a shotgun
with “beanbags” and “wouldn’t put hands on anyone.”

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       Appellant was handcuffed by Officer Pulsipher, after which Tedesco advised
Pulsipher he had the right person. Pulsipher recalled that appellant was wearing a black
or blue beanie cap, a black zip-up sweater, and a dark color backpack with orange or red.
Pulsipher noticed small shards of glass on appellant’s sleeves. A form prepared by the
property unit of the police department indicated that the personal property taken from
appellant for safekeeping when he was booked into custody included what was described
as a black “saddle bag,” swimming goggles, and a knife and tools. It did not mention a
dust mask. According to Sheilah Boothby, the property unit supervisor, items listed on
this form did not include property that an investigator determined had evidentiary value.
       The defense took the position that Tedesco’s identification of appellant was
unreliable given the darkness of the plaza, the number of other people present, the
confusion of events during the protest, and the presence of trees in front of the
IAD/recruiting offices, which would have obscured Tedesco’s view.
                                      DISCUSSION
                                  I. Judicial Misconduct
       Appellant contends the judgment must be reversed because the court “took on the
role of a second prosecutor” by asking its own questions of witnesses. We disagree.
       a. Forfeiture
       “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.) Appellant did not object to the conduct he now challenges, but
invokes the rule that a claim will not be deemed forfeited when an objection and
admonition could not cure the prejudice caused by the misconduct, or when objecting
would have been futile. (Ibid.) Even if we were to conclude appellant’s claims were
properly before us, those claims fail on the merits.
       b. Judicial Misconduct—General Principles
       “A court commits misconduct if it persistently makes discourteous and
disparaging remarks so as to discredit the defense or create the impression it is allying
itself with the prosecution. [Citations.]” (People v. Santana (2000) 80 Cal.App.4th

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1194, 1206-1207.) “The mere fact that a judge examines a witness at some length does
not establish misconduct . . . .” (People v. Pierce (1970) 11 Cal.App.3d 313, 321.) “[I]t
is not merely the right but the duty of the trial judge to see that the evidence is fully
developed before the trier of fact and to assure that ambiguities and conflicts in the
evidence are resolved insofar as possible.” (People v. Carlucci (1979) 23 Cal.3d 249,
255 (Carlucci).) “A trial court has both the discretion and the duty to ask questions of
witnesses, provided this is done in an effort to elicit material facts or to clarify confusing
or unclear testimony.” (People v. Cook (2006) 39 Cal.4th 566, 597; see also Pen. Code,
§ 1044 [judge has duty to “control all proceedings during the trial . . . with a view to the
expeditious and effective ascertainment of the truth regarding the matters involved”];
Evid. Code, § 775 [court may call witnesses].)
       c. Alleged Misconduct
       The trial court allowed the jurors to submit questions to each of the witnesses,
including Tedesco, Pulsipher and Boothby. The first alleged instance of judicial
misconduct arises from the following exchange between the court and Tedesco while the
court was asking questions submitted by jurors:
       “THE COURT: . . . One question that’s posed is: The person that you saw with the
red chair, did you happen to note whether the person was wearing any sort of gloves or
anything on the hands?
       “[TEDESCO]: I don’t recall seeing any gloves.
       “THE COURT: All right. You did get a look at [appellant] after he had been
arrested; is that right?
       “[TEDESCO]: Yes.
       “THE COURT: Did you happen to note at that time whether he was wearing
anything on his hands?
       “[TEDESCO]: I don’t remember. I don’t remember seeing any gloves.
       “THE COURT: When you did confirm for Officer Pulsipher, I think it was, that he
had arrested the right person, how close would you say you got to [appellant]?
       “[TEDESCO]: I walked right by them. I was a few feet away.

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       “THE COURT: And did he have goggles on at that time?
       “[TEDESCO]: He had on—I’m still not sure exactly if they’re goggles or some
type of individual eye piece—glasses. He did have those on.
       “THE COURT: So he did have something on his eyes. Did he have the mask on?
The dust mask?
       “[TEDESCO]: Yes. When I saw him after Officer Pulsipher had arrested him, the
dust mask was pulled down, and it was around his neck.
       “THE COURT: And did he have the beanie on?
       “[TEDESCO]: Yes, he had on a black beanie.
       “THE COURT: All right. Earlier this morning, you identified [appellant] as a
person you had seen, and you said that was the person who had the red chair. What did
you base your identification of him in court on? Having seen him from up in the parking
garage or having seen him up close or something else?
       “[TEDESCO]: It’s kind of a two-part answer. I—when I saw him from the parking
garage, and I saw where he moved down to the—in the plaza, I made sure that he was
still in the same spot. As I walked up to the skirmish line, I continued to look at him, and
then I walked up directly alongside of him when the officer arrested him. So there were
moments when I couldn’t see him. People would pass by, or I was in and out of the
garage going down the staircase, but I never lost sight of where he was at. I kept my eyes
on him the entire time. So I based my identification on my total time looking at him.
       “THE COURT: All right. Specifically, I was referring to identifying him here in
court. You recognize his face from having seen it somewhere?
       “[TEDESCO]: Yes, from that experience. From the—from this incident out on
November 3rd.
       “THE COURT: Including the time when he was arrested and you were standing
nearby?
       “[TEDESCO]: Yes, including that time.




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       “THE COURT: All right. You’ve also testified that there was sort of what
appeared to you to be a V shaped orange stripe on one side of the backpack that he wore;
is that right?
       “[TEDESCO]: Yes.
       “THE COURT: Which side of the backpack, if you’re able to tell us, was the
orange stripe?
       “[TEDESCO]: I believe it was on the left. The left side of the backpack.
       “THE COURT: Okay. Was he still in possession of that backpack at the time he
was arrested?
       “[TEDESCO]: Yes, he was wearing it.
       “THE COURT: Did you participate in—this isn’t a very good word to use, but I
can’t think of another one right now. Did you participate in the handling of [appellant]
after he had been arrested? In other words, if he was taken somewhere, were you one of
the officers who took him somewhere?
       “[TEDESCO]: No, I walked up alongside of him as the other officers arrested him.
The skirmish line continued pas[t] him further into the plaza. I followed behind the
skirmish line, continuing into the plaza. Later, as I left the area, I walked by Pulsipher,
Officer Pulsipher, and told him, again, ‘You have the right person. That’s the right
person.’ I didn’t have any contact with [appellant]. I didn’t talk to him.
       “THE COURT: So, did you participate at all in the disposition of anything that he
was wearing?
       “[TEDESCO]: No.”
       Appellant also claims the court committed misconduct with respect to its
questioning of Pulsipher. After counsel for both sides had finished examining Pulsipher,
two jurors submitted written questions and the following exchange occurred:
       “THE COURT: . . . At the time you arrested [appellant], . . . did he have any sort
of mask on his person?
       “[PULSIPHER]: There was no mask covering his face. I don’t remember if he
had something pulled down around his neck, but not that I remember.

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         “THE COURT: All right. Did you write any kind of report in connection with
this?
         “[PULSIPHER]: Yes, I did.
         “THE COURT: In that report, do you think perhaps you described what
[appellant] had on?
         “[PULSIPHER]: There is a brief description of what he was wearing, yes.
         “THE COURT: Do you think it might help refresh your memory if you take a look
at it?
         “[PULSIPHER]: Yes, it would.
         “THE COURT: Do you have it with you?
         “[PULSIPHER]: I do.
         “THE COURT: Any objection?
         “[DEFENSE COUNSEL]: No.
         “THE COURT: Why don’t you do that. You looked at your report?
         “[PULSIPHER]: Yes, I did.
         “THE COURT: Did you see anything there that refreshes your recollection one
way or another?
         “[PULSIPHER]: Not about the—having a bandan[n]a or a beanie on, but at the
time it was dark and being at several of the protests, I know several of the protesters pull
it up, or they keep it down around their neck. He had it zipped up, so I wasn’t able to see
what he was wearing underneath that.
         “THE COURT: Did you ever remove the hoodie from him?
         “[PULSIPHER]: No, I didn’t.”
         The court indicated it would not ask Pulsipher a question asked by another juror,
but would allow counsel to follow up on that question. The prosecutor took the
opportunity to question Pulsipher about a photograph taken of appellant on the night of
the arrest, after which defense counsel indicated he had no further questions of the
witness. The court then asked the jurors whether they had additional questions of
Pulsipher and one juror submitted a note. The court again questioned Pulsipher:

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        “THE COURT: . . . Okay. You mentioned that the backpack that was worn by
[appellant], you had said orange or red marking on it?
        “[PULSIPHER]: Yeah.
        “THE COURT: Can you give us any further description of that marking?
        “[PULSIPHER]: I believe they were kind of maybe an inch or two inches in
width, and they ran vertically with the backpack. Other than that, no. I just know they
were very contrast to the black color of the backpack.
        “THE COURT: So the backpack is black, and the marking red or orange, it was a
vertical sort of stripe of some kind?
        “[PULSIPHER]: Yeah.
        “THE COURT: Can you tell us anything else about that stripe? Its shape, you said
maybe a couple inches or so wide. Anything else you could tell us about it?
        “[PULSIPHER]: No, nothing else comes to mind.
        “THE COURT: Did you happen to pay close attention to it?
        “[PULSIPHER]: No, there were so many people being arrested at that time. We
would arrest somebody, fill out the paperwork, and they were supposed to get back on
line.
        “THE COURT: All right. Do you happen to remember, particularly since you
reviewed your report and the description of him you wrote, do you happen to remember
whether he was wearing any sort of eye wear, whether it be glasses or anything else over
the eyes?
        “[PULSIPHER]: I don’t remember him wearing any when I made contact with
him.
        “THE COURT: Okay. Any follow-up?
        “[PROSECUTION]: No.
        “THE COURT: [Defense counsel]?
        “[DEFENSE COUNSEL]: No.”
        The final instances of misconduct cited by appellant occurred during the testimony
of Boothby, who testified about the procedure for safekeeping the personal property of

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persons who were arrested. The prosecutor asked Boothby about a form, marked as
People’s Exhibit 11, which appeared to catalogue appellant’s property at the time of his
arrest, and she responded: “It actually has a box just below center that has check boxes
that tell you when to use the form. So it’s for safekeeping personal property and also
firearms that are taken during a domestic violence call, and firearms taken during mental
health incidents. And lastly, suspected stolen property. So that’s property that we take.
And then we provide receipts and such to give it back.” The court then asked: “So if
somebody is arrested and booked into the police department jail, is this the form that’s
used to keep the record of the personal property they had on them that was subject to
your safekeeping?” Boothby answered that some items might stay at the jail and be
identified on a different form, but any objects that came to her unit would be identified on
a form like the one used in People’s Exhibit 11.
       After the prosecutor asked some additional questions about the form, the court
asked Boothby a series of questions whose answers laid the foundation for admission of
the form as a business record: that it was a record kept in the ordinary course of business
and filled out by police department employees; that the document was a copy of a record
for a particular person in custody; that the person in this case was identified as “Aguirre,
Cesar”; that it was dated November 3; and that the person who filled out the form was a
civilian employee of the police department.
       In response to a written question submitted by a juror after both sides had finished
their examination, Boothby testified she would not necessarily expect an item like a dust
mask (which was not listed on Exhibit 11) to be individually listed on the form unless it
had evidentiary value. Defense counsel followed up with a question about who decides
the evidentiary value of an item, and Boothby testified the investigators on a case did so.
The court sustained as calling for speculation defense counsel’s question as to whether it
would be safe to say the items on Exhibit 11 had no evidentiary value. When defense
counsel had some difficulty rephrasing the question, the court had the following
exchange with Boothby:


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       “THE COURT: Did you testify earlier that what goes on this record, this record
does not include property that somebody has determined has evidentiary value?
       “[BOOTHBY]: That is correct.
       “THE COURT: Who—and somebody else besides you and your people make that
determination, right?
       “[BOOTHBY]: Correct.
       “THE COURT: That’s going to be some police officer who makes that
determination; is that right?
       “[BOOTHBY]: Yes, yes.
       “THE COURT: All right. And do you generally know who that police officer is if
they’re making a decision about property that you’re not getting? The answer should be
no to that, right?
       “[BOOTHBY]: Before it comes to me?
       “THE COURT: Right.
       “[BOOTHBY]: And how it’s decided, no.
       “THE COURT: You have nothing to do with that?
       “[BOOTHBY]: Right.
       “THE COURT: Okay. I’m sorry. Go ahead.
       “[DEFENSE COUNSEL]: No, that’s quite all right.
       “THE COURT: All right.
       “[DEFENSE COUNSEL]: I think the record is clear on that point.”
       Later, the prosecutor asked Boothby on direct examination about how the high
volume of arrests during the Occupy protests impacted the way the police department
operated. The court sustained defense objections to two questions on the ground the
questions called for speculation. The court briefly questioned Boothby about her
knowledge of other police department units and indicated she would only answer
questions about her unit. The prosecutor then elicited testimony that the property unit
was over tasked by the high volume of property brought in for safekeeping during the
protests.

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       d. Analysis
       We begin by noting that many of the questions by “the court” that appellant cites
as misconduct were actually questions submitted by the jurors that were read by the
court. The jury would have drawn no inference about the court’s view of the evidence
from these questions. Appellant raises no challenge to the procedure used to allow juror
questions, nor could he reasonably do so. (See People v. Majors (1998) 18 Cal.4th 385,
406-407; People v. Cummings (1993) 4 Cal.4th 1233, 1305-1306 [court may ask
questions submitted by the jurors or allow counsel to ask such questions].)
       To the extent that some of the questioning originated with the court and not the
jurors, there is no support in the record for appellant’s claims of judicial misconduct. The
court was evenhanded in its approach and sought to elicit relevant evidence that would
not necessarily favor one side or the other. It was never disparaging of defense counsel
and, indeed, assisted counsel in eliciting testimony on one occasion.
       Appellant argues the court showed bias in favor of the prosecution when it asked
Tedesco how close he was to appellant when he confirmed to Pulsipher he “had arrested
the right person.” This choice of language could not be reasonably interpreted to signal
that the court (as opposed to Tedesco) thought appellant was “the right person.”
       Similarly unavailing is appellant’s claim that the court’s questions to Pulsipher
regarding the dust mask “clearly indicated to the jurors where its sympathy resided.” The
court was relaying a question by a juror who was obviously interested in learning whether
Pulsipher had seen appellant wearing a disposable dust mask such as that described by
Tedesco. In allowing Pulsipher to refresh his recollection by referring to his report
regarding the arrest, the court was simply attempting (unsuccessfully) to get a more
meaningful response to this question than Pulsipher’s initial answer that he did not
remember whether appellant had a mask. It is not misconduct for a court to clarify or
cover omissions in a witness’s testimony. (Carlucci, supra, 23 Cal.3d at p. 256.)
       Appellant also asserts the jurors would have inferred the court sided with the
prosecution because it allowed the prosecutor to ask additional questions of Pulsipher
after Pulsipher had answered questions by the jurors. We disagree, especially when it

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was clear defense counsel also could have asked additional questions had he chosen to do
so.
       Nor do we agree the jury would have inferred judicial bias when the court asked
Boothby the questions necessary to lay a foundation for the property form admitted as
Exhibit 11. This form was as beneficial to the defense as the prosecution because it did
not list a dust mask among the personal property taken for safekeeping at the time of
appellant’s arrest, and described a “black saddle bag” rather than the black backpack with
an orange or red stripe that was described by Tedesco and Pulsipher. There is nothing
else about the court’s exchanges with Boothby to suggest it favored the prosecution’s
position in any way.
       We also note that any possible inference the jury might have drawn about the
court’s views of the case was mitigated by the following instruction: “It is not my role to
tell you what your verdict should be. Do not take anything I said or did during the trial as
an indication of what I think about the facts, the witnesses, or what your verdict should
be.” We assume the jury followed this instruction and conclude it is not reasonably
probable the jury would have reached a different result had the court refrained from
asking any questions. (People v. Harris (2005) 37 Cal.4th 310, 350-351.)
                                    II. Ability to Pay Fees
       The probation report recommended that appellant pay a probation investigation fee
of $710 and a $90 per month probation supervision fee under Penal Code section
1203.1b. The report further stated, “[Appellant] has been advised of the amount(s) and of
the right to have a Court hearing with counsel concerning their ability to pay, pursuant to
Section 1203.1b of the Penal Code.” The court imposed a probation investigation fee of
$250 and a probation supervision fee of $50 per month, with no objection by appellant.
       Appellant argues the fees should be vacated because the court made no express
determination of his ability to pay. The issue is forfeited because it was not raised in the
trial court. (See People v. McCullough (2013) 56 Cal.4th 589, 597 [ability to pay
booking fee is question of fact subject to forfeiture if not raised in trial court]; People v.
Snow (2013) 219 Cal.App.4th 1148, 1150-1151 [defendant’s challenge to probation

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investigation and supervision fees based on ability to pay was forfeited where defendant
had adequate notice of those costs and never objected or requested a hearing].)
                                      DISPOSITION
       The judgment is affirmed.1




                                                 NEEDHAM, J.



We concur.




SIMONS, Acting P.J.




BRUINIERS, J.




   1    Appellant has filed a separate petition for writ of habeas corpus arguing he is
entitled to a new trial because the prosecution failed to disclose material and exculpatory
evidence under Brady v. Maryland (1963) 373 U.S. 81, 87. By separate order filed the
same date as this opinion, we have issued an order to show cause returnable in the
superior court. (Case No. A139835.)
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