Filed 10/2/14 P. v. Cismas CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B247706

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. SA080236)
         v.

ALEXANDER TUDOR CISMAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Elden S.
Fox, Judge. Affirmed.
         Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Linda C. Johnson,
Supervising Deputy Attorney General, and Tita Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
                                             ——————————
                                         SUMMARY
       Alexander Cismas challenges his convictions for grand theft and identity theft. He
maintains the prosecutor engaged in misconduct, the trial court adopted an adversarial
role during trial, and that cumulative error requires reversal. We reject these contentions,
and affirm.
                             PROCEDURAL BACKGROUND
       By amended information, appellant Alexander Cismas was charged with two
counts of grand theft of personal property (Pen. Code,1 § 487, subd. (a); counts 1 & 4),
one count of grand theft with a loss exceeding $950 (§ 484g, subd. (a); count 2), and one
count of identity theft (§ 530.5, subd. (a); count 3).
       Appellant pleaded not guilty and denied the special allegations. Trial was by jury,
and appellant was convicted as to all four counts.
       Imposition of sentence was suspended as to all counts. Appellant was placed
under formal probation under certain terms and conditions, including that he serve 365
days in county jail, with precustody credit for 96 days. The court assessed various fees
and fines against appellant and ordered him to pay restitution.
                                FACTUAL BACKGROUND
Prosecution case
Count 1: Grand theft of personal property of Romy Daniels
       In April 2011, Romy Daniels hired appellant to help her run errands and to babysit
her children. In that capacity, Daniels gave appellant keys to her home, to which he had
access when Daniels was not home. Daniels also gave appellant cash in advance to run
her errands. Daniels never gave appellant a credit card or access to or permission to use
her credit cards, and never gave him permission to take any of her belongings.
       On February 7, 2012, Daniels received a phone call from a credit card company
questioning charges on a credit card she kept hidden in a satchel in a hall closet. The


       1   All further statutory references are to the Penal Code unless otherwise indicated.


                                               2
satchel contained jewelry, financial documents, family passports and a number of credit
cards. After confirming that the charges were unauthorized, Daniels discovered her
satchel was missing.
       Daniels filed a police report. Detective Gregory Taylor showed Daniels a video
connected to the unauthorized credit card charges, in which Daniels identified appellant.
Detective Taylor sent Daniels to two pawnshops near her home. At the Salter Pawnshop,
Daniels located multiple items of gold, silver, diamond and precious gem jewelry which
she had received as gifts from her parents. At Pacific Pawnbrokers, Daniels found a
silver goblet, more precious jewelry and a watch, all of which she had also received from
her parents.
       The owner of Salter’s Pawnshop testified that he had made numerous purchases
from appellant, specifically, a gold chain with diamond, opals, and sapphires, a gold
bangle, gold pendant and gold bracelet, all of which Daniels identified as hers. An
employee of Pacific Pawnbrokers verified having purchased from appellant on various
occasions items identified at trial by Daniels as her property. Each pawnbroker had
identified appellant by his driver’s license when the items were pawned, and identified
him at trial as the person who sold them.
Counts 2 and 3: Grand theft of personal property of Margit Brandhuber
       In September or October 2011, Margit Brandhuber met Yvette Brandeis through
family friends. Brandhuber rented her West Hollywood apartment to Brandeis while
Brandhuber was out of state for several months. Brandhuber later allowed appellant,
whom Brandeis identified as her boyfriend, to also move in.
       In mid-December 2011, while still out of state, Brandhuber’s credit card company
called Brandhuber and asked whether she had made $11,000 in charges. She had not.
Brandhuber subsequently learned about $3,500 in additional unauthorized charges on her
PayPal credit card account.
       Brandhuber returned to West Hollywood in mid-January 2012, but was afraid to
go back to her apartment because appellant was living there. She was unable to gain full
access to the apartment until March 10, 2012. Afterwards, Brandhuber noticed that a

                                            3
number of items of her personal property were missing. She also found credit and
identification cards which she did not recognize and gave to Detective Taylor. Among
the items Brandhuber found was paperwork for a PayPal account and two associated
credit cards, one in her name and one in appellant’s. Brandhuber never authorized
appellant to use her credit cards, never opened a credit card account with appellant and
never authorized him to take out a credit card in her name. After learning about the
unauthorized charges, Brandhuber spoke to appellant twice on the phone while
Brandhuber was still out of state. Appellant took responsibility for the unauthorized
charges, and promised to take care of everything.
       Carla Wenzler, a fraud investigator and custodian of records for the bank that
underwrites PayPal credit cards testified that appellant had been added as an authorized
user to Brandhuber’s PayPal account pursuant to a telephonic request on November 9,
2011. A manager for a Best Buy store testified that business records indicated appellant
had picked up $1,034.20 worth of electronic products from the store. The items were
paid for with Brandhuber’s PayPal credit card.
Count 4: Grand theft of Nordstrom property
       On the evening of March 10, 2012, Gerardo Benavides, a Nordstrom Loss
Prevention agent, was told by a salesperson that appellant had tried to put a watch in his
pocket without paying for it. Benavides watched appellant try to open several watch
display cases. Appellant grabbed a handful of watches from one of the cases and put
them in a plastic bag he was carrying. Appellant subsequently opened two more drawers,
and pulled out more watches which he placed in his plastic bag before leaving the store.
Benavides stopped appellant, and asked him to come to his office, where Benavides
recovered from appellant’s bag approximately nine watches and a watch wristband, with
a combined value of $3,510. Appellant never tried to pay for the watches or wristband.
Defense case
       Al Tudor Dupont, appellant’s uncle and godfather, loves appellant. Dupont has
had a close relationship with appellant since appellant’s birth, and was his caretaker in
Romania beginning in 1981 after appellant’s mother moved to the United States. Daniels

                                             4
is Dupont’s neighbor; he has known her for six or seven years. About 12 to 18 months
before trial, Dupont saw appellant driving with Daniels and her children on Santa Monica
Boulevard, near the Fairfax area. He saw appellant park the car, and watched everyone
get out. When Dupont later asked appellant what he had been doing, appellant told him
he had gone “with [Daniels] and the kids to do some business at the pawnshop.” On one
occasion, Dupont overheard Daniels crying to Dupont’s sister, and complaining that her
husband did not pay adequate attention to her. Daniels was upset that she “was trading”
because her husband did not give her enough money. Dupont tried to share this
information with Detective Taylor, who would not talk to him. Dupont also left a
voicemail message for Brandhuber after appellant’s arrest, but denied having tried to
contact her.
       Appellant testified that he had known Daniels and her husband, his uncle’s
neighbors, for up to 10 years. In late 2010 or early 2011, appellant began working for the
Daniels as a nanny. He worked for them for one year. Sometimes Daniels gave him cash
to pay for household items. Most of the time, however, he used one of three credit cards
to pay for Daniels’s purchases. Appellant believed he had Daniels’s permission to use
her credit card to pay for gas for her family’s car, food for her children and groceries.
Daniels usually paid appellant in cash, but sometimes asked him to use her credit card to
buy things, in lieu of a cash payment. Appellant gave Daniels receipts for everything he
bought using her credit card, whether for her family or for himself.
       Appellant did not recall having seen the satchel Daniels’s described at trial. He
had seen some jewelry that Daniels asked him to sell for her, such as a gold chain,
bracelets and a pin with a star. None of the jewelry was worth more than about $200.
Daniels told appellant she needed cash but did not want her husband to find out she was
selling anything, and drove appellant to the pawnshop. Primarily, they went to the Salter
and Pacific pawnshops. Appellant was familiar with the buying and selling practices at
both shops (including checking identification and fingerprinting), because he had done
business at each in the past on his own or his mother’s behalf. When appellant sold
things to the pawnbrokers for Daniels he gave them his own driver’s license and provided

                                              5
his fingerprints. He gave Daniels the cash he received for her jewelry. Daniels never
gave appellant cash from the sale of her property, but continued to give him access to and
permission to use her credit cards for her family’s household needs and as payment for
his services.
       Appellant had Brandhuber’s permission to live in her West Hollywood apartment.
The apartment manager gave appellant an “Occupant Approval” letter, dated
September 29, 2011. Appellant and Brandeis, appellant’s girlfriend, signed that letter
which stated the rent was $400, but “negotiable,” and moved in on October 1, 2011.
Written on the letter, in the spot reserved for Brandhuber’s signature, was the phrase,
“Via telephone with [the apartment manager].” During the time appellant and his
girlfriend lived in the apartment, two or three people whom they did not know had keys
entered the apartment at will without appellant’s or Brandeis’s knowledge. Appellant
had seen mail for more than 10 people delivered to the apartment; he assumed the people
had come to collect their mail that was still being delivered to the apartment.
       Appellant recognized two Visa cards ending in “4000,” which he had photocopied.
One card was in Brandhuber’s name, and the other was in the name of Gabor Kranitz.
Both cards expired in October 2013, and still bore activation stickers. Appellant found
20 credit cards in the name of Brandhuber or other people he did not know, but whose
names he recognized from mail delivered to the apartment.
       After appellant had lived in the apartment about five months, Brandhuber asked
him to export some electronics with her to Hungary. To facilitate appellant’s purchases,
Brandhuber sent him four credit cards in his name and told him she had added him to her
accounts. Appellant received a discount on rent from Brandhuber, or sometimes lived
rent-free, in exchange for purchasing electronic products for her every week. A friend of
Brandhuber’s came by the apartment regularly to collect items appellant purchased for
Brandhuber. Appellant’s working relationship with Brandhuber soured after he
questioned her about the 20 credit cards he found in her desk. She became angry and
threatened to report him for fraud or to force him to pay for items he bought on her behalf
using credit card accounts she opened in his name.

                                             6
       Appellant had no memory of what happened at Nordstrom on March 10, 2012, and
no idea why he would take watches from the store. Before his arrest, appellant had
persistent pain in his leg. Afterwards, appellant awoke in the Los Angeles Sheriff’s
Department’s Intensive Care Unit, having undergone emergency surgery. Appellant later
learned he had had a serious staph infection in his knee, and a fever of over 104 degrees
on March 10, 2012.
                                      DISCUSSION
1.     Prosecutorial misconduct
       Appellant contends reversal is in order because the prosecutor’s improper cross-
examination of his uncle, which implied that appellant had a history of criminal conduct
when in fact no such history existed, deprived him of a fair trial.
       a.     Relevant facts
       Appellant’s uncle testified in appellant’s defense. On cross-examination, the
following exchange took place:
       “[Prosecutor]: And because you love [appellant], . . . you don’t want anything bad
to happen to him, right?
       “[Dupont]: Of course.
       “[Prosecutor]: And Alex has had some issues in the past, hasn’t he?
       “[Defense counsel]: Objection.
       “THE COURT: I don’t know what that means, counsel. The objection’s
sustained.
       “[Prosecutor]: Has Alex had problems with the law in the past?
       “[Dupont]: No.
       “[Defense counsel]: Objection.
       “THE COURT: Okay. Do you want the answer stricken?
       “[Defense counsel]: I don’t, but if we may approach.
       “THE COURT: Not at this point. The objection is noted. The answer is no.
       “[Prosecutor]: If Alex has had financial problems and things of that nature, have
you ever bailed him out? Not bailed him out of jail, but bailed him out with money?

                                              7
       “[Dupont]: So far I understand Alex, so this is can be proved was working. He
was finished high school.
       “[Prosecutor]: I’m sorry. Maybe I didn’t ask a question. Have you ever helped
Alex out with money when he’s needed it?
       “[Dupont]: He never asked me for money.”
       At the end of Dupont’s questioning, defense counsel requested to approach in
order “to put something on the record.” The trial court responded, “Not at this
point. . . . What I’d like to do is proceed with the rest of the case . . . and then he can be
recalled.”
       Later, outside the jury’s presence, the following occurred:
       “[Defense counsel]: “I just wanted to place on the record that [the prosecutor’s]
question regarding any prior brushes with the law was completely unacceptable, illegal
and smacks of prosecutorial misconduct. And the [Health and Safety Code section]
11350 which is [appellant’s] only brush with the law that then resulted in a DEJ dismissal
does not count as moral turpitude, and so I would ask for a mistrial at this time and I’ll
submit.
       “THE COURT: Okay. I believe I sustained the objection.
       “[Defense counsel]: You did.
       “THE COURT: Okay. And—
       “[Prosecutor]: Moreover, your Honor, I didn’t even know he had an [Health and
Safety Code section] 11350 prior. That’s not where I was going at all.
       “THE COURT: In any event, I sustained the objection at this point without
foundation or offer of proof, and no evidence presented as to that.”
2.     No prosecutorial misconduct occurred
       Prosecutorial misconduct is present when a prosecutor’s question is inherently
likely to elicit an improper response, and there is evidence the prosecutor posed the
question intending to elicit such a response. A prosecutor may not ask improper or
prejudicial questions. (People v. Wash (1993) 6 Cal.4th 215, 258 [“it is plainly
misconduct to ask questions calling for inadmissible answers”]; People v. Bell (1989) 49

                                               8
Cal.3d 502, 532 [“‘The deliberate asking of questions calling for inadmissible and
prejudicial answers is misconduct.’”].) Nor may the prosecution ask a question which is
in the nature of an argument, assumes as proved a fact at issue or seeks irrelevant
information. (People v. Young (2005) 34 Cal.4th 1149, 1186–1187.) “It constitutes
misconduct to examine a witness solely for the purpose of implying the truth of facts
stated in the question rather than in the answer to be given, and a prosecutor should not
pursue a line of questioning that is damaging but irrelevant.” (People v. Dykes (2009) 46
Cal.4th 731, 766.)
       Prosecutorial misconduct violates the Fourteenth Amendment if it infects the trial
with such fundamental unfairness as to make the conviction a denial of due process.
(People v. Lopez (2008) 42 Cal.4th 960, 965; People v. Samayoa (1997) 15 Cal.4th 795,
841.) Moreover, even conduct that does not render a criminal trial fundamentally unfair
constitutes prosecutorial misconduct under California law if it involves the use of
“‘deceptive or reprehensible methods’ in an attempt to persuade the jury.” (People v. Hill
(1998) 17 Cal.4th 800, 845.) What constitutes “deceptive” or “reprehensible” is
determined by an objective standard. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) A
prosecutor’s questions will not amount to misconduct unless the record shows the
prosecutor anticipated the witness’s answers and purposefully asked questions to elicit
inadmissible testimony. (People v. Pinholster (1992) 1 Cal.4th 865, 943, disapproved on
another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
       On this record, we cannot conclude the prosecutor purposefully aimed to elicit
inadmissible evidence. In context, the prosecutor’s question, though inartful and clearly
improper, was designed to elicit evidence that Dupont had a life-long affection for his
nephew, and a longstanding history and willingness to intercede on his behalf to help him
out of a tight spot, financial or otherwise. The record also suggests that the reaction by
defense counsel to the question, and concomitant motion for mistrial surprised the
prosecutor, who immediately interjected that she “didn’t even know [appellant] had an
[Health and Safety Code section] 11350 prior,” and that was not “where [she] was going
at all.” The matter was dropped. We are satisfied that the prosecutor’s question, and

                                             9
Dupont’s stricken answer thereto, did not constitute prosecutorial misconduct. It was
neither deceptive nor reprehensible.
3.     There was no prejudice
       Assuming, for the purpose of discussion, that prosecutorial misconduct did occur,
any misconduct was harmless. In our view, the record does not support a suggestion that
the result was tipped in favor of the prosecution by the district attorney’s single inartful
question and Dupont’s stricken answer. Again, we note that the prosecutor herself
suggested she was surprised to learn that appellant had a “[Health and Safety Code
section] 11350 prior.” The question of appellant’s criminal history was pursued no
further. Nor does the record reflect that the issue was alluded to again at any subsequent
time during trial. On this record, we cannot conclude that the prosecutor’s single vague
reference to appellant’s “problems with the law in the past” rendered the trial
fundamentally unfair, or in any way affected its outcome from an evidentiary standpoint.
       Based on our review of the record, the evidence supporting appellant’s guilt of the
charged offenses was strong: There was testimony from Daniels regarding appellant’s
access to specific property stolen from her, and pawnbrokers identified appellant as the
person who pawned those items. A Nordstrom’s loss prevention agent testified that he
personally had observed appellant steal numerous watches, and about his subsequent
capture of appellant and recovery of the store property. And Brandhuber testified about
unauthorized credit card purchases made by appellant on her accounts. The jury also
heard testimony by Dupont that favored appellant, i.e., that he shared a close relationship
with his nephew who, to his knowledge, had never before had problems with the law.
Further, when the court asked whether she wanted the question and response stricken, his
trial counsel declined. And, finally, the trial court instructed the jury it must decide the
issues based solely on the evidence presented at trial, that statements made by the
attorneys during trial are not evidence, and that it was not to assume to be true any
insinuation suggested by a question asked a witness. We presume the jury followed the
instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) We conclude it is not
reasonably probable appellant would have received a more favorable result in the absence

                                              10
of the prosecutor’s purported misconduct. Accordingly, the assumed prosecutorial
misconduct was not prejudicial.
4.     Judicial bias
       Appellant contends the trial judge improperly intervened as an advocate for the
prosecution by interposing his own questions to several witnesses. First, we first
summarize the factual bases for these claims before turning to the merits of appellant’s
contentions.
       a.      Questioning of Benavides
       After both sides completed their examinations of Nordstrom’s loss prevention
agent, the trial court questioned Benavides about his compliance with the store’s policy
following apprehension of a shoplifting suspect. After Benavides testified that he had
photographed and prepared a written inventory describing the stolen merchandise, the
court elicited details as to the identity and value of each item.2
       b.      Questioning of Brandhuber
       During direct examination of Brandhuber, the trial court took over questioning
from the prosecutor to elicit testimony regarding Brandhuber’s fear of returning to her
residence while appellant remained there, to clarify her efforts to contact banks and law
enforcement agencies regarding the unauthorized charges, and to see if Brandhuber could
identify appellant. The court again took over questioning from the prosecution to elicit
testimony from Brandhuber which laid the foundation to establish the unauthorized credit
card charges. The court also asked questions of the witness, the answers to which
established appellant’s access to Brandhuber’s PayPal credit card during his stay in her
apartment.3


       2On two occasions, during the court’s questioning of Benavides, appellant’s
counsel asked to approach to put something on the record. Those requests were denied.
       3Appellant’s counsel’s request to be heard during the court’s questioning of
Brandhuber was denied. After Brandhuber was done testifying, the court permitted
appellant’s counsel to be heard outside the jury’s presence. His attorney noted she was


                                              11
       c.     Questioning of Wenzler
       At the outset of the prosecutor’s direct examination of GE Capital Retail Bank
fraud investigator Darla Wenzler, the trial court took over questioning the witness.
Wenzler’s answers to the court’s questions established her status as custodian of records
and her authority to access information from a specific PayPal account. After the court
finished its questions, the prosecutor went on to establish through Wenzler that the
specific account was Brandhuber’s, to which appellant’s name had been added.
       d.     Questioning of appellant
       After the prosecutor completed her cross-examination of appellant, the court
engaged in its own lengthy examination. The court questioned appellant as to whether he
ever met Brandhuber, the extent of and specific details regarding their telephonic contact,
and how he came to live in her apartment. The court also asked questions regarding the
nature of and specific details regarding appellant’s involvement in Brandhuber’s export
business to Hungary, his access to her credit cards and how he came to have a card in his
name on Brandhuber’s account.
       e.     Appellant’s contentions
       Appellant asserts that the trial court interjected itself into the questioning of
witnesses in order to help the prosecutor establish her case, interfered with defense
counsel’s efforts to make a record as to evidentiary objections, and engaged in its own
adversarial cross-examination of appellant. Appellant contends that taken together, the
court’s conduct “exceeded the purview of appropriate trial management or clarification
and rose to the level of partisan assistance to the prosecution.” 4



“object[ing] for the record . . . to the court’s taking over questioning from the
[prosecution] regarding . . . elements necessary to prove certain counts.” The court did
not respond.
       4 We reject the Attorney General’s contention that appellant forfeited this
contention by failing to object adequately at trial. Appellant did not specifically object
on the record to each of the court’s questions with which he takes issue on appeal.


                                              12
       f.     Controlling law
       A trial court may control the examination of witnesses to ensure the efficient
“ascertainment of the truth,” and may examine witnesses on its own motion. (§ 1044;
Evid. Code, §§ 765, subd. (a), 775.) “‘[I]t is not merely the right but the duty of a 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.’ [Citations.]”
(People v. Mayfield (1997) 14 Cal.4th 668, 739.) To that end, the “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.)
       “‘[I]f a judge desires to be further informed on certain points mentioned in the
testimony it is entirely proper for him to ask proper questions for the purpose of
developing all the facts in regard to them. Considerable latitude is allowed the judge in
this respect as long as a fair trial is indicated both to the accused and to the People.
Courts are established to discover where lies the truth when issues are contested, and the
final responsibility to see that justice is done rests with the judge.’” (People v. Carlucci
(1979) 23 Cal.3d 249, 255.) The court must, however, be careful in order to avoid taking
on the role of either prosecutor or of the defense. “The court’s questioning must be
‘“temperate, nonargumentative, and scrupulously fair”’ [citation], and it must not convey
to the jury the court’s opinion of the witness’s credibility. [Citation.]” (People v. Cook,
supra, 39 Cal.4th at p. 597.)


       Ordinarily, “the lack of an objection at trial forfeits the claim on appeal.
[Citation.] However, a failure to object to judicial misconduct does not preclude
appellate review when an objection would have been futile.” (People v. Houston (2012)
54 Cal.4th 1186, 1220.) Appellant’s counsel requested permission to approach several
times. Those requests were denied. Appellant’s attempted objections appear to have
been timely, as they occurred shortly after the court’s initial questions, and were raised
several times thereafter. The court refused to entertain the objections or to allow
appellant’s counsel to make a record until after Brandhuber’s questioning was concluded.
The court’s response to appellant’s efforts rendered further objections futile.


                                              13
       Our role is to “‘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.) “We determine the propriety of judicial comment on a case-
by-case basis in light of its content and the circumstances in which it occurs.” (People v.
Cash (2002) 28 Cal.4th 703, 730; see People v. Sturm (2006) 37 Cal.4th 1218, 1237–
1243 [appellate court must independently analyze facts cumulative to determine whether
under the circumstances judicial misconduct occurred].)
       g.     Analysis
       We conclude appellant has failed to show that the trial court stepped improperly
into an adversarial role. Our thorough examination of the record reveals that the court
asked clarifying, albeit numerous, questions of several witnesses during and after direct
and cross-examination. A trial judge may question witnesses to clarify the evidence or
fill in evidentiary gaps. (People v. Hawkins (1995) 10 Cal.4th 920, 947–948, overruled
on another point by People v. Lasko (2000) 23 Cal.4th 101, 109–110.) Here, it is clear
the underlying purpose behind the trial court’s questions was twofold: to clarify
confusing testimony and to control and efficiently advance the proceeding.
       The court first sought to clarify confusing testimony. This is particularly apparent
with regard to Brandhuber, a person of Hungarian descent, whose ability to speak and
understand English was not well-developed, and who had difficulty responding to
counsel’s questions. The court’s questions to Brandhuber were for the purpose of
clarifying her testimony, and did not favor either side. This distinguishes the present case
from People v. Santana (2000) 80 Cal.App.4th 1194, on which appellant relies. In
Santana, the appellate court found the trial court improperly aligned itself with the
prosecution by examining prosecution and defense witnesses in an apparent effort to
impair the defense. (Id. at pp. 1207–1209.) The trial court adopted the prosecutor’s
terminology in questioning police officers elicited, belabored evidence from defense
witnesses that was adverse to the defendant, and limited defense counsel’s cross-
examination of witnesses. (Ibid.) No similar misconduct occurred here. The trial court
impartially elicited evidence from both prosecution and defense witnesses. Moreover,

                                             14
appellant does not argue that the court interfered with or impaired his attorney’s ability to
cross-examine witnesses or present evidence, nor does our review of the record reveal
any such impairment.
       Second, the trial court interjected itself in a legitimate, albeit vigorous, effort to
fulfill its duty to control the trial, and ensure it proceeded apace. The record reveals
repeated instances in which the prosecutor’s questions were vague, confusing or not
aimed at eliciting relevant information. On several occasions outside the jury’s presence,
the trial judge chastised counsel not to continue to waste time, urging them to “focus on
the donut, not the hole.” The court was understandably frustrated, particularly by the
prosecutor’s redundant, roundabout and sometimes incomprehensible witness
examination.5 Notwithstanding its apparent perception that the prosecutor had difficulty
posing appropriate questions, or that her method of questioning wasted an inordinate
amount of time, the court also recognized it would clearly have been “‘completely
improper for [it] to advise the jury of negative personal views concerning the
competence . . . of the attorneys in a trial. . . . When the court embarks on a personal
attack on an attorney, it is not the lawyer who pays the price, but the client.’ [Citation.]”
(People v. Sturm, supra, 37 Cal.4th at p. 1240.) Instead, the court chose the more
appropriate, cautious course and conducted its own examination.


       5 For example, during her direct examination of Brandhuber, the prosecutor asked
Brandhuber questions seemingly directed at Brandhuber’s inability to access her
apartment after returning from Hawaii. The court stated, “Counsel, I’m losing this, so I
need to clarify,” and asked more direct questions. At another point, clearly frustrated
with redundant questions and slow pace, the court interrupted the prosecutor’s
questioning regarding Brandhuber’s emotional reaction to appellant’s acts, stating, “Can I
ask you a question, Counsel? Are these rhetorical questions?’ Later, when the
prosecutor posed inarticulate questions trying to elicit the identity of entities to which
Brandhuber reported unauthorized charges, the court interjected to clarify, stating to the
witness, “I think what she’s trying to ask you . . . .” And, as noted above, the court
deemed it necessary to take over Wenzler’s direct examination to lay an appropriate
foundation, after the prosecutor led off by asking the custodian of records an ill-
conceived question about a screen shot of Brandhuber’s PayPal account history.


                                              15
       “The trial judge has the duty to control all proceedings during the trial with a view
to the expeditious and effective ascertainment of the truth regarding the matters involved.
(Pen. Code, § 1044.) To this end he may examine witnesses to elicit or clarify testimony.
[Citations.] The mere fact that a judge examines a witness at some length does not
establish misconduct, nor does the fact that the testimony elicited by the judge’s
questions would probably have been elicited by counsel. [Citation.]” (People v. Pierce
(1970) 11 Cal.App.3d 313, 321; see People v. Fudge (1994) 7 Cal.4th 1075, 1108.) It is
difficult to assess on a cold record whether a particular question or series of questions by
a judge went too far. We cannot ascertain whether the tone of any particular question
was anything but neutral, nor can we scrutinize the facial expressions or body language
of a confused witness or juror and cannot, without proof, assume the court intervened
inappropriately. (People v. Raviart (2001) 93 Cal.App.4th 258, 272 [trial court is “‘in a
better position than the reviewing court to know when the circumstances warrant or
require the interrogation of witnesses from the bench’”].)
       What is clear here is that the trial court repeatedly took it upon itself to direct the
examination. Even if the court asked more questions than were necessary, that does not
mean it lost its neutrality. There is nothing about the content of the court’s questions
demonstrates an absence of neutrality. Finally, we observe that the trial court instructed
jurors that, they were ultimate judges of the facts. They were further instructed not to
speculate why any objection had been sustained, nor to assume to be true any insinuation
suggested by a question asked of a witness. Finally, they were told that nothing the court
said or did, or any questions it may have asked, was intended to intimate or suggest what
they should find, or that the court believed or disbelieved any witness. We presume the
jury followed these instructions and considered each witness’s answers, not the fact that
questions were posed by the trial court, in its assessment of the evidence. (See People v.
Sanchez, supra, 26 Cal.4th at p. 852.) Accordingly, we find no judicial misconduct.
5.     No cumulative error
       Appellant contends the cumulative effect of errors was prejudicial. “[A] series of
trial errors, though independently harmless, may in some circumstances rise by accretion

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to the level of reversible and prejudicial error. [Citations.]” (People v. Hill, supra, 17
Cal.4th at pp. 844–845.) Here, the only potential error we have identified is that the
prosecutor arguably committed borderline misconduct by suggesting that appellant had
had problems with the law. We addressed that purported error above, and find no merit
in appellant’s cumulative error argument. (See People v. Seaton (2001) 26 Cal.4th 598,
675, 691–692 [minor errors, whether considered individually or cumulatively, would not
alter the outcome of the trial].) As the California Supreme Court has stated, “A
defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th
408, 454.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.


                                                  JOHNSON, J.


We concur:


              CHANEY, Acting P. J.


              MILLER, J.*




       *  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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