Filed 6/3/15 P. v. Schwarz CA3
Opinion following transfer from Supreme Court.
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C059021

                   Plaintiff and Respondent,                                     (Super. Ct. No. 07F07920)

         v.

JOHN BRUCE SCHWARZ,

                   Defendant and Appellant.




         A jury convicted defendant John Bruce Schwarz of possession of
methamphetamine and unlawful possession of a firearm. (Health & Saf. Code, § 11377,
subd. (a); Pen. Code, § 12021, subd. (c)(1).) The trial court suspended imposition of
sentence and granted defendant probation. Defendant timely appealed.
         In a supplemental brief, defendant contended his Sixth Amendment right to
confront the evidence against him was violated because the analyst who tested the alleged
drugs was not called as a witness; instead, her report was described by the testimony of
her supervisor, himself an expert drug analyst. Applying the United States Supreme


                                                             1
Court decision in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d
314] (Melendez-Diaz), we agreed with defendant, and because the error was not harmless
beyond a reasonable doubt, we reversed the drug possession count.
       As to the gun possession count, we rejected defendant’s contentions that the
prosecutor committed misconduct by diluting the reasonable doubt standard during
closing argument, that the trial court became an advocate for the People by asking too
many questions, and that the trial court misinstructed the jury on circumstantial evidence.
       We also agreed with defendant’s contentions that the probation order was
defective and remanded the case for further proceedings.
       Thereafter, the California Supreme Court granted the People’s petition for review.
It then transferred the case to this court with directions to vacate our prior decision and to
reconsider the cause in light of People v. Lopez (2012) 55 Cal.4th 569 (Lopez), People v.
Dungo (2012) 55 Cal.4th 608 (Dungo), People v. Rutterschmidt (2012) 55 Cal.4th 650
(Rutterschmidt), and Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221]
(Williams). (Cal. Rules of Court, rule 8.528(d).) We have done so and upon
reconsideration reject defendant’s arguments under the confrontation clause, as well as
his arguments on prosecutorial misconduct and instructional error, as applied to both the
gun possession and drug possession counts.
                                          FACTS
       The parties stipulated that on February 24, 2006, defendant was convicted of
brandishing a knife, a misdemeanor in violation of Penal Code section 417. As a matter
of law, that conviction prohibits defendant from possessing firearms for 10 years. (Pen.
Code, § 12021, subd. (c)(1).)
       Officer Jacob Gullion, of the Sacramento Police Department, testified that at about
1:00 a.m. on August 14, 2007, he and two other officers arrived at a house and defendant
answered the door. The house had two bedrooms, one with men’s clothing and one with
women’s clothing. In the former, Officer Gullion found mail addressed to defendant at

                                              2
that address. On a desk in that bedroom he found two glass narcotic smoking devices and
a black container with a white crystalline substance in clear plastic. Based on his training
and experience, he believed the substance was methamphetamine. In a drawer of that
desk he found two packages, each of which contained 100 one-inch-square plastic bags
used for drug sales, and a handgun. On a dresser he found a computer printout with
instructions for making methamphetamine. In defendant’s pocket, Officer Gullion found
five more of the small baggies, a couple of which contained white residue that looked like
methamphetamine. Defendant told Officer Gullion that he found the gun at a
construction site.
       A 911 call by defendant’s mother at 1:05 that morning was played for the jury. In
part, she stated that other people were in defendant’s room with him, dealing drugs. She
also said that defendant had a gun and used “crank,” and that morning she found
instructions in his computer about “how to cook it.” Officer Michael Smith testified that
as the officers arrived, he spoke to a man (not defendant) sitting on the porch.
       Ray Bartneck testified he is a supervising criminalist at the Sacramento County
District Attorney’s Laboratory of Forensic Services and has worked there for over
26 years. He has a bachelor’s degree in forensic science with minors in biology and
chemistry, and over 27 years “of crime lab experience, including seven to eight years of
bench experience in the analysis of controlled substance[s]. Over the years, I have been
the supervisor of the chemistry unit which tests for drugs off and on now for maybe seven
or eight years.”
       In the drug laboratory, an analyst retrieves the substance from the evidence
section; then observes, weighs, and tests the substance; then uses notes, entered into a
computer, to record the results in a report. Bartneck reviews the report, along with the
analyst’s notes, before he approves it. Bartneck has qualified over 100 times as a
courtroom expert in testing controlled substances.



                                             3
       Bartneck testified that a subordinate, Deborah Henry, chemically tested the
substance in this case. Henry had worked in the laboratory for over 18 years, Bartneck
had personally watched her work, and she was given yearly proficiency testing, which
she had always passed so far as he knew. Bartneck reviewed Henry’s laboratory notes
and her report in this case. He also reviewed printouts from a gas chromatograph/mass
spectrometer, which records the chemical components of a sample.
       Several times during his testimony, Bartneck stated that he trusted that Henry did
the things her notes and report state she did. Three illustrations follow:
       1. “Q[.] Did Miss Henry receive the alleged narcotic sample in a sealed
condition?
       “A[.] Yes, she did.”
       2. “Q[.] Did Miss Henry analyze the sample accurately?
       “[Objection overruled.]
       “[A.] Based upon my review of her notes, yes, she did.”
       3. “Q[.] And she wrote orange down, but you don’t know as a matter of fact
whether or not she actually did the test?
       “A[.] She put it in her notes. I believe she did the test.
       “Q[.] Okay. So you believe she did the test because it was in her notes, but you
didn’t see her do it?
       “A[.] I have no reason to suspect that she didn’t do it.”
       Based on his review of Henry’s notes, Henry’s report, and the
chromatograph/spectrometer printouts, Bartneck testified he agreed with Henry’s
conclusion that the “sample contains methamphetamine, net weight 4.57 grams.”
       The parties stipulated that 4.57 grams was a useable amount of methamphetamine.
       Henry’s report was introduced into evidence without objection. It is signed by
Henry and Bartneck, but not under penalty of perjury, and it is not written in the form of
an affidavit or declaration.

                                              4
                                      DISCUSSION
                                 I. Confrontation Clause
       At trial, defense counsel explained that she had thought Henry was sick but
learned she was merely out of town: “Being sick and out of town are two different
things. . . . I think this was a way to skirt around the issue of getting someone here
appropriately and allowing defense to know who is going to testify and who is not.”
Counsel moved to strike Bartneck’s testimony because he was “merely reading” from
Henry’s report. The motion was denied.
       On appeal, defendant, citing Melendez-Diaz, supra, 557 U.S. 305, argued that the
trial court should have granted his motion to strike Bartneck’s testimony because
defendant was “deprived of the right to cross-examine the preparer” of the laboratory
report. Bartneck’s testimony, in effect, was that Henry was a diligent and experienced
analyst, and that he believed she competently performed the tests her report states she
performed, with the results stated in the report. Defendant asserted that Bartneck’s
testimony “was functionally a substitute for the [analyst’s] testimony on direct
examination,” and although Bartneck was cross-examined, that did not enable defendant
to confront Henry.
       In Melendez-Diaz, a drug case, the prosecutor introduced sworn affidavits from a
laboratory attesting to the weight and nature of the drugs. This procedure was authorized
by a Massachusetts statute. (Melendez-Diaz, supra, 557 U.S. at p. 308.)
       Melendez-Diaz held the affidavits were testimonial and the procedure prevented
any cross-examination of the analysts: “In short, under our decision in Crawford the
analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for
purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable
to testify at trial and that petitioner had a prior opportunity to cross-examine them,
petitioner was entitled to ‘ “be confronted with” ’ the analysts at trial.” (Melendez-Diaz,
supra, 557 U.S. at p. 311.) In our earlier opinion, we agreed with defendant’s application

                                              5
of Melendez-Diaz, concluding that defendant had no effective means to challenge
whether Henry, the laboratory analyst, correctly performed the tests reflected by her
written report. The error was not harmless beyond a reasonable doubt, and though
cognizant of cases pending review in the California Supreme Court considering the scope
of Melendez-Diaz, we reversed his conviction for possession of methamphetamine under
authorities then extant.
       As directed by the Supreme Court, we now reconsider defendant’s claim and our
prior conclusion in light of decisions postdating Melendez-Diaz, the United States
Supreme Court decision in Williams, supra, ___ U.S. ___ [132 S.Ct. 2221] and three
California Supreme Court decisions: Lopez, supra, 55 Cal.4th 569, Dungo, supra,
55 Cal.4th 608, and Rutterschmidt, supra, 55 Cal.4th 650.
       We begin with the United States Supreme Court’s decision in Williams, a case in
which a state police crime lab analyst was permitted to testify as an expert in a rape
prosecution that the defendant’s DNA profile matched the DNA profile in a sample taken
from the victim, though the analyst played no role in performing the laboratory tests
required to produce the defendant’s profile. The Supreme Court rejected the defendant’s
claim that the analyst’s testimony violated the confrontation clause. A plurality
concluded the analyst’s testimony was not admitted for its truth but for the limited
purpose of explaining the basis for her independent expert conclusion, reached after
examining the laboratory reports, that the defendant’s DNA from the state police lab
profile matched the profile produced by an independent lab (Cellmark) from the victim’s
vaginal swabs. (Williams, supra, ___ U.S. at p. ___ [132 S.Ct. at pp. 2239-2240] (plur.
opn. of Alito, J.), as construed by the court in Crawford v. Washington (2004) 541 U.S.
36 [158 L.Ed.2d 177] (Crawford).) Alternately, the plurality reasoned that the Cellmark
DNA report was not testimonial. It was not prepared primarily for the purpose of
prosecuting an accused, but to find a dangerous rapist who remained at large and a threat.
(Williams, at p. ___ [132 S.Ct. at p. 2243] (plur. opn. of Alito, J.).) Justice Thomas

                                             6
provided the decisive vote to affirm, concluding that the Cellmark DNA report “lack[ed]
the solemnity of an affidavit or deposition.” (Id. at p. ___ [132 S.Ct. at p. 2260] (conc.
opn. of Thomas, J.).)
        Following the Supreme Court’s decision in Williams, the California Supreme
Court decided three other cases.
Lopez
        In Lopez, supra, 55 Cal.4th 569, the criminalist who analyzed the blood sample of
a defendant in a vehicular manslaughter case did not testify and the prosecution did not
assert that he was unavailable. Instead, testimony was offered by the supervisor who had
trained the absent criminalist and who professed to be “ ‘intimately familiar’ ” with his
procedures and how he tests blood for alcohol content. (Id. at p. 574.) Indeed, according
to the supervisor, all of the workers in the lab were trained to process blood alcohol
analyses in the same manner. (Ibid.) The testing criminalist used a gas chromatograph to
analyze the blood sample and prepared a report, the critical parts of which were five
pages of a computer printout generated by the gas chromatography machine indicating
the sample contained a blood-alcohol concentration of 0.09 percent and a sixth page (the
first page in order) that contained a notation, entered by a lab assistant, linking the
defendant to the blood sample tested by the gas chromatograph. The defendant
challenged the admission of the supervisor’s testimony and the laboratory report prepared
by the absent criminalist as a violation of his rights of confrontation. (Id. at pp. 582-584.)
        Our Supreme Court set forth the controlling principles: As a threshold matter,
“the prosecution’s use at trial of testimonial out-of-court statements ordinarily violates
the defendant’s right to confront the maker of the statements unless the declarant is
unavailable to testify and the defendant had a prior opportunity for cross-examination.”
(Lopez, supra, 55 Cal.4th at p. 581.)
        And what is “testimonial?” The court noted the United States Supreme Court had
not settled on a definition, but their decisions intimate that a testimonial statement has

                                              7
two “critical components:” 1) the statement must have been made with some degree of
formality or solemnity, and 2) its primary purpose must pertain in some fashion to a
criminal prosecution. (Lopez, supra, 55 Cal.4th at pp. 581-582.)
       Applying these principles, the court concluded the introduction into evidence of
the machine-generated printouts shown on pages two through six did not implicate the
Sixth Amendment’s right to confrontation. The raw data generated by such machines are
not statements and machines are not declarants as discussed in the Crawford decision.
(Lopez, supra, 55 Cal.4th at p. 583.) Though the signature of the nontestifying
criminalist appeared on a page containing a printout of the machine’s calibrations, and
though his initials appeared on the other pages, no statement by the criminalist, express or
implied, appeared on any of the pages. (Ibid.) Thus, Crawford’s restriction on
testimonial out-of-court statements was not implicated. The court acknowledged the
importance of the lab assistant’s notation on the first page of the criminalist’s report but
concluded: “The notation in question does not meet the high court’s requirement that to
be testimonial the out-of-court statement must have been made with formality or
solemnity.” (Lopez, supra, 55 Cal.4th at p. 584.) The admission of the report, including
the five pages reflecting that the blood sample tested contained 0.09 percent alcohol and
the lab assistant’s notation on a single page indicating the blood sample was taken from
defendant, did not violate the confrontation clause.
Dungo
       In Dungo, supra, 55 Cal.4th 608, a murder prosecution proceeded without the
testimony of the physician who prepared the autopsy report on the victim. Instead, a
forensic pathologist testified and described the condition of the victim’s body as recorded
in the autopsy report and attached photographs. The pathologist provided his
independent opinion as to the cause of death (strangulation) based on objective facts set
forth in the autopsy report. Neither the report nor the photographs were introduced into



                                              8
evidence, and the testifying pathologist made no reference to the conclusions contained in
the autopsy report as to cause of death. (Id. at pp. 613-615.)
       The Supreme Court concluded the objective facts related to the jury “were not so
formal and solemn as to be considered testimonial for purposes of the Sixth
Amendment’s confrontation right, and criminal investigation was not the primary
purpose for recording the facts in question.” (Dungo, supra, 55 Cal.4th at p. 621.)
       With respect to the formality of that portion of an autopsy report containing
statements about the condition of the body, the court opined that “[t]hese statements,
which merely record objective facts, are less formal than statements setting forth a
pathologist’s expert conclusions. They are comparable to observations of objective fact
in a report by a physician who, after examining a patient, diagnoses a particular injury or
ailment and determines the appropriate treatment. Such observations are not testimonial
in nature. (Melendez-Diaz, supra, 557 U.S. at p. 312, fn. 2 . . . .” (Dungo, supra,
55 Cal.4th at p. 619.)
       As to the primary purpose of autopsy reports, the court noted their purpose is not
limited to criminal investigation. They serve many other equally important purposes,
including determination of insurance coverage and as a basis for civil actions. (Dungo,
supra, 55 Cal.4th at p. 621.) Thus, neither of the two “critical components” applied to
determine whether an out-of-court statement is testimonial was present.
       “In summary, [the forensic pathologist’s] description to the jury of objective facts
about the condition of [the] body, facts he derived from [the] autopsy report and its
accompanying photographs, did not give [the] defendant a right to confront and cross-
examine [the author of the report]. The facts that [the forensic pathologist] related to the
jury were not so formal and solemn as to be considered testimonial for purposes of the
Sixth Amendment’s confrontation right, and criminal investigation was not the primary
purpose for recording the facts in question.” (Dungo, supra, 55 Cal.4th at p. 621.)
Rutterschmidt

                                              9
       Rutterschmidt, supra, 55 Cal.4th 650 is a case in which a laboratory director,
relying on lab tests conducted by others, testified the victims had been drugged. (Id. at
pp. 655-656.) However, the court had no occasion to address the confrontation clause
issues raised in the cases discussed earlier herein. It concluded the overwhelming
evidence of the defendants’ guilt rendered any error harmless beyond a reasonable doubt.
(Id. at p. 661.)
       Collectively, the United States Supreme Court decision in Williams and our
Supreme Court’s opinions in Lopez and Dungo lead us to conclude that defendant’s rights
under the confrontation clause of the Sixth Amendment were not violated. The out-of-
court statements here at issue—the statements contained in Henry’s laboratory notes and
report—were not made with the degree of formality or solemnity required to be
considered testimonial in nature. Nothing in the record indicates Henry swore or attested
to the accuracy of the procedures used or the results reached.
       While defendant insists the outcome of this case is controlled by Bullcoming v.
New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705], that case was decided before the
United States Supreme Court’s later pronouncements in Williams, which in turn guided
our Supreme Court’s decision in Lopez, the facts of which are remarkably similar to the
facts before us in the present appeal. While defendant may believe that Lopez was
wrongly decided, our status as an intermediate appellate court binds us to follow it and all
other decisions of the California Supreme Court purporting to apply decisions of the
United States Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.) In Lopez, the court was clear in describing the “critical
components” of a testimonial statement. The disputed statements here lack the formality
and solemnity required to be considered testimonial. It is significant that only a single
justice dissented from the conclusion that no Sixth Amendment violation occurred in
Lopez, though four justices, as did we, struggled with the difficulty of finding “a
workable rule that does not render it a constitutional violation whenever the prosecution

                                             10
fails to call to the stand everyone ‘whose testimony may be relevant in establishing the
chain of custody, authenticity of the sample, or accuracy of the testing device.’
[Citation.]” (Lopez, supra, 55 Cal.4th at p. 586.)
       Here, as in Lopez, the critical step in testing for methamphetamine involved the
use of a gas chromatograph that produced an electronic printout indicating the substance
tested was methamphetamine. Henry’s report, notes, and test results, including the
electronic printout from the gas chromatograph, were properly admitted into evidence as
business records and properly relied on in Bartneck’s testimony as an expert witness on
the laboratory procedures followed in testing and arriving at the conclusion that the
substance was methamphetamine. Given his examination of the records available to him,
his professional training, and his background as Henry’s supervisor, Bartneck could
properly opine, without violating the confrontation clause, that the substance tested was
4.57 grams of methamphetamine.
                    II. Prosecutorial Misconduct: Reasonable Doubt
       The trial court instructed the jury on reasonable doubt before testimony was taken
and at the end of the trial. The jury was also instructed to follow the law as given by the
trial court, not the attorneys.
       During argument, defense counsel emphasized the prosecutor’s burden of proof
beyond a reasonable doubt. In part, defense counsel distinguished the criminal standard
of proof from the civil standards and, to illustrate her view of “abiding conviction,” gave
the example of the certainty needed about how one’s parachute was packed before one
jumps out of an airplane.
       In rebuttal, the prosecutor read the part of the reasonable doubt instruction stating
that not every possible doubt was a reasonable doubt. As the prosecutor continued with
closing argument, the following took place:
       “[Prosecutor:] As the Judge stated, each of the elements must be proved beyond a
reasonable doubt. That was one of the instructions that both of us went over. The law

                                              11
tells you what reasonable doubt is not. It’s not absolute. It’s not imaginary doubt and it’s
not based on speculation. But we know what reasonable doubt is. It’s something that is
used in courtrooms every day and it’s not an absolute—it’s not a difficult standard. It’s
based on the evidence. And as I stated before, it’s not based on speculation or any other
improper source. It’s reasonable.
       “[Defense Counsel]: Objection. Misstates the standard and lowers the burden.
       “The Court: Ms. Price, your objection is overruled. The jury has the instructions
which define the standard.”
       On appeal, defendant contends that by stating the standard was not “a difficult”
one, but one “used in courtrooms every day” and “reasonable,” the prosecutor diluted the
reasonable doubt standard and thereby committed misconduct.
       We disagree. As stated in rejecting a similar claim:
       “Defense counsel’s argument and the court’s jury instructions unambiguously
communicated to the jury that the prosecution had the burden of proving every element of
the case beyond a reasonable doubt. The record does not demonstrate that the
prosecution employed deceptive or reprehensible methods to persuade the jury, and, in
light of the entire record, there was no reasonable likelihood that the jury erroneously
construed the prosecution’s burden of proof.” (People v. Samayoa (1997) 15 Cal.4th
795, 842.)
       In evaluating the prosecutor’s remarks, “we must view the statements in the
context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.)
The prosecutor’s comments, in context, did not dilute the standard of proof. The
prosecutor referenced the instruction that had been given by the trial court and correctly
argued that the standard was “not absolute. It’s not imaginary doubt and it’s not based on
speculation.” Although in the abstract the reference to the standard “used in courtrooms
every day” could seem to blend the civil and criminal standards, in context that is not
how the argument would have been understood by the jury. Nor, in context, do we

                                             12
believe the jury would interpret the remark that the standard was not “difficult” but was
“reasonable” to mean that it was not important for the jury to hew closely to the standard
as defined by the trial court.
       Moreover, even if we agreed the prosecutor overstepped the bounds of permissible
argument, such error did not cause any prejudice. The trial court instructed the jury to
follow the law as given by the trial court, not the attorneys, and the prosecutor referred to
the reasonable doubt instruction given by the trial court before making the challenged
remarks. If the jury interpreted the prosecutor’s remarks as describing a lower standard
of proof, there is no reason to believe it would have followed that standard rather than the
standard given by the trial court. We presume the jury would follow the trial court’s
instructions, including the instruction to disregard those statements of the law given by
attorneys that conflicted with the instructions. (People v. Sanchez (2001) 26 Cal.4th 834,
852 (Sanchez).)
                   III. Judicial Misconduct: Questioning Witnesses
       During Officer Gullion’s testimony, the trial court sometimes interrupted to ask
questions, sometimes two or more in a series. The trial court asked other witnesses a
number of questions. These were separate from questions asked by the court but
submitted by jurors.
       On appeal, defendant contends that by asking so many questions, the trial court
became the People’s advocate, depriving him of the right to a neutral judge.
       This contention has been forfeited by lack of objection.
       There were three objections to specific questions asked by the trial court. One was
a foundational objection to a question by the trial court about what kinds of substances
could be smoked in the devices found in defendant’s room. One was an unspecified
objection to a question by the trial court about the significance of the size of the smaller
baggies. The third was a foundational objection to a question about whether the residue
on the baggies found in defendant’s pocket was on the inside or outside of the baggies.

                                             13
       But defense counsel never objected that the trial court was asking too many
questions or was asking them in a biased manner.
       The California Supreme Court has held that the lack of objection forfeits claims of
judicial misconduct: “It is settled that a judge’s examination of a witness may not be
assigned as error on appeal where no objection was made when the questioning
occurred.” (People v. Corrigan (1957) 48 Cal.2d 551, 556; see People v. Hines (1997)
15 Cal.4th 997, 1040-1041; People v. Wright (1990) 52 Cal.3d 367, 411.) We have
repeatedly applied this rule to claims of improper questioning by judges. (People v.
Raviart (2001) 93 Cal.App.4th 258, 269 (Raviart); People v. Pierce (1970)
11 Cal.App.3d 313, 321-322 (Pierce); People v. Flores (1952) 113 Cal.App.2d 813, 817
(Flores).)
       Accordingly, the claim of judicial misconduct has been forfeited for lack of an
objection at trial.
       Defendant relies on two older appellate court decisions that addressed claims of
judicial bias through excessive or inappropriate questioning. In one, the appellate court
quoted the trial court’s extraordinary questioning at great length, supporting the court’s
view that the lack of objection was excused because an objection would have been futile.
(People v. Robinson (1960) 179 Cal.App.2d 624, 637-638, 639-657 (Robinson).) But in
that case, the judge’s questions were partisan, “of a nature which tended to develop the
case of the People.” (Id. at p. 633.) Nothing in the record before this court suggests
partisanship or that an objection would have been futile. In the other case relied on by
defendant, People v. Campbell (1958) 162 Cal.App.2d 776 (Campbell), the issue of
preservation of claims of error was not discussed. Cases are not authority for
propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176; People v.
Watkins (2009) 170 Cal.App.4th 1403, 1409.) Accordingly, the lack of objection forfeits
the claim of error. (Raviart, supra, 93 Cal.App.4th at p. 269.)



                                             14
       Moreover, even if we excused the lack of objection, we would reject the
contention of error. As we have said before: “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.” (Pierce, supra, 11 Cal.App.3d at p. 321; see Raviart, supra, 93 Cal.App.4th at
p. 270; see also People v. Fudge (1994) 7 Cal.4th 1075, 1108.)
       On the other hand, “[u]nwarranted interruptions of counsel that interfere with a
properly conducted examination, excessive questioning that virtually takes the witness
out of counsel’s hands, or a display of partisanship are improper.” (5 Witkin & Epstein,
Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 544.) “The question for us to decide is
whether the judge ‘officiously and unnecessarily usurp[ed] the duties of the
prosecutor . . . and in so doing create[d] the impression that he [was] allying himself with
the prosecution[.]’ ” (People v. Clark (1992) 3 Cal.4th 41, 143, quoting Campbell, supra,
162 Cal.App.2d 776; see People v. Cummings (1993) 4 Cal.4th 1233, 1305.)
       Whether a particular question or series of questions by a judge goes too far is
difficult to assess on a cold record because we cannot determine if the tone of any
particular question was other than neutral, and because the transcript does not indicate the
length of pauses by the attorneys in between the answer to one question and the asking of
another. (Raviart, supra, 93 Cal.App.4th at p. 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’ ”].) In his reply brief, defendant asserts that
“nothing in the record suggests that the prosecution was acting in anything other than an
expedited manner or leaving any ambiguities unresolved.” But it is defendant’s burden,



                                             15
as the appellant, to show error, and we cannot assume the trial court intervened too
quickly or inappropriately.
        And even if this trial judge asked too many questions, that does not mean he lost
his neutrality. Nothing about the content of the questions shows a lack of neutrality.
Defendant faults the trial court in two specific instances, for “all but [laying] the
foundation for the exhibits and the presumptive field test for the prosecution[,]” and for
asking Officer Gullion why he booked the bags containing the smaller baggies into
evidence. Defendant asserts this testimony was “highly” prejudicial. We need not
address these examples because of our reversal of the drug possession count. Other than
those two examples, there is no claim the trial court asked improper questions, “and this
being so, it is difficult to understand how the interrogation by the court could have
constituted prejudicial error.” (Flores, supra, 113 Cal.App.2d at pp. 817-818; see
People v. Golsh (1923) 63 Cal.App. 609, 615; People v. Hunt (1915) 26 Cal.App. 514,
517.)
        Finally, we observe that the trial court instructed the jury with CALCRIM
No. 3550, which in part provides: “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 presume the jury followed this instruction and would consider the content of the
answers to the trial court’s questions and not the fact that the questions were asked by the
trial court in assessing the evidence. (Sanchez, supra, 26 Cal.4th at p. 852.)
        Accordingly, we reject the claim of judicial misconduct.1


1  Although we have rejected the claim of error, both procedurally and on the merits, we
observe that some of the judicial interruptions, although not harmful, were not necessary.
It is best to allow each counsel to develop her or his case, except when intervention is
necessary, and then to intervene at the least intrusive time: “Ordinarily the proper course,
and the one generally pursued, is to allow the examination by counsel—direct, cross,
redirect and recross—to conclude, and then if anything in the judgment of the trial court
remains obscure, which may be material for the jury to know, and it seems desirable that

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                    IV. Instructional Error: Circumstantial Evidence
       Defense counsel reviewed the proposed instructions, had not asked for any that
were refused, and stated she was “happy with everything we discussed in chambers.”
She referred to the circumstantial evidence instructions in argument, CALCRIM
Nos. 223 and 225.
       CALCRIM No. 223 defines circumstantial evidence.
       CALCRIM No. 225, as given, cautions the jury about circumstantial evidence
used to prove a mental state: “Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt.
       “Also, before you may rely on circumstantial evidence to conclude that the
defendant had the required intent or mental state, you must be convinced that the only
reasonable conclusion supported by the circumstantial evidence is that the defendant had
the required intent or mental state. If you can draw two or more reasonable conclusions
from the circumstantial evidence, and one of those reasonable conclusions supports a
finding that the defendant did have the required intent or mental state and another
reasonable conclusion supports a finding that the defendant did not, you must conclude
that the required intent or mental state was not proved by the circumstantial evidence.
However, when considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
       On appeal, defendant contends the trial court should have instructed with
CALCRIM No. 224 instead of CALCRIM No. 225. The difference is that CALCRIM


an examination of the witness should be further pressed, then, with perfect propriety, the
trial court may, and, indeed, should, intervene so that the ends of justice may be
subserved. This, however, should be done with care[.]” (Robinson, supra,
179 Cal.App.2d at p. 639.)

                                            17
No. 224 is broader, and in its second paragraph, CALCRIM No. 224 cautions the jury
about the use of circumstantial evidence to prove any fact, not just a mental state. It
would have provided, in part: “Also, before you may rely on circumstantial evidence to
find the defendant guilty, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant is guilty. If you can draw
two or more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
        Putting aside defense counsel’s express statement that she was content with the
instructions, we reject defendant’s contention of prejudicial error. The California
Supreme Court, discussing the analogous CALJIC instruction, stated as follows: “We
have held that the court must give such an instruction on its own motion when the proof
of guilt rests substantially on circumstantial evidence. [Citations.] But the instruction
need not be given when the circumstantial evidence merely corroborates other evidence
[citations], because in such cases the instruction may confuse the jury regarding the
weight to which other evidence is entitled[.]” (People v. Yeoman (2003) 31 Cal.4th 93,
142.)
        The gun charge was proven by direct evidence: the gun was found in defendant’s
room and he admitted possessing it. There was no basis to give CALCRIM No. 224 in
connection with that charge. As to the drug possession charge, defendant makes a
plausible claim that CALCRIM. No. 224 should have been given, in light of the fact that
no one directly observed him possess the methamphetamine. However, even assuming
error, the failure to instruct was clearly harmless. An error in instructing the jury will
result in a reversal of the judgment only if the error resulted in a miscarriage of justice.
(Cal. Const., art. VI, § 13; see also People v. Rogers (2006) 39 Cal.4th 826, 885-887.) A
miscarriage of justice occurs where it appears reasonably probable that the defendant

                                              18
would have achieved a more favorable result had the error not occurred. (People v.
Breverman (1998) 19 Cal.4th 142, 149.) It is not reasonably probable the jury would
have concluded defendant did not possess the methamphetamine had it been instructed
with CALCRIM No. 224.
       The jury was instructed on circumstantial evidence. The court gave CALCRIM
No. 223, describing the difference between direct and circumstantial evidence. The jury
was instructed on reasonable doubt. Defendant’s counsel linked the two in argument:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find
the defendant guilty has been proved, you must be convinced that the People have proved
each fact essential to that conclusion beyond a reasonable doubt.” Faced with his
mother’s disclosure suggesting he was making drugs and the subsequent discovery of
methamphetamine in a sleeping room occupied by him, defendant chose to focus on his
mental state. He questioned whether the prosecution’s evidence established his mental
state—his “knowledge” of the substance. Referring no doubt to the language of
CALCRIM No. 225, he argued “you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence is that the defendant had the
required intent or mental state.” Thus, defendant relied on the language of the instruction
given, CALCRIM No. 225, and the court’s instruction on reasonable doubt to make the
most plausible argument under the circumstances: that the presence of the drug in his
room, among his belongings, did not compel a conclusion that he possessed the drug; the
jury could conclude that he had no knowledge of the drug. It is not reasonably probable
that a jury instructed in the language of CALCRIM No. 224 would have reached a
different conclusion.
                                    V. Attorney Fees
       At sentencing, defense counsel asserted defendant was indigent. The probation
report supported this view, as defendant’s only employment was as his mother’s
caregiver, for which he was paid $200 per month. The report also states: “If there are

                                            19
reimbursable costs to the County in the disposition of this case for appointed counsel,
presentence investigation, probation supervision or incarceration, it is recommended the
defendant be ordered to report to the Department of Revenue Recovery for a financial
evaluation and recommendation of ability to pay said costs.”
        One of the formal probation conditions, as recommended by the probation report,
item No. 9, is as follows: “Defendant [shall] pay through the Court’s installment process
the amount determined and report to the Department of Revenue Recovery within [five]
(5) days of sentencing or within five (5) days of release from custody for an evaluation
and recommendation of ability to pay and for development of a payment schedule for
Court-ordered costs, fees, fines and restitution[.]”
        An apparently garbled passage of the reporter’s transcript shows the trial court
stating: “I am required to order that you pay an attorney fee to the county in the amount
of $2,440, that’s to be a condition on your ability to pay the fees. [¶] You are required to
cooperate with the Division of Revenue Recovery in the determination of your ability to
pay.”
        The relevant statute provides, in part: “In any case in which a defendant is
provided legal assistance, either through the public defender or private counsel appointed
by the court, upon conclusion of the criminal proceedings in the trial court, or upon the
withdrawal of the public defender or appointed private counsel, the court may, after
notice and a hearing, make a determination of the present ability of the defendant to pay
all or a portion of the cost thereof. The court may, in its discretion, hold one such
additional hearing within six months of the conclusion of the criminal proceedings. The
court may, in its discretion, order the defendant to appear before a county officer
designated by the court to make an inquiry into the ability of the defendant to pay all or a
portion of the legal assistance provided.” (Pen. Code, § 987.8, subd. (b).)
        Defendant contends the trial court did not hold a noticed hearing. But the
probation report gave notice of the intended procedure, and the statute gave the trial court

                                             20
discretion to order defendant to cooperate with the relevant county department to
determine his ability to pay all or part of the attorney cost determined by the court. That
procedure comports with law. (Cf. People v. Flores (2003) 30 Cal.4th 1059, 1062
[simply ordering reimbursement “ ‘subject to his ability to pay’ ” does not comply with
statute].) This procedure does not deprive defendant of the right to a hearing; it defers
the matter until the county department assesses defendant’s ability to pay, which he can
then contest. (See People v. Spurlock (1980) 112 Cal.App.3d 323, 328; Couzens &
Bigelow, Basic Elements of Felony Sentencing (Barrister Press 2009) p. 171 [trial court
“[m]ay refer defendant to county financial evaluation officer for recommendation” on
ability to pay].)
       However, the written probation order states: “Defendant shall pay a $2,000.00
attorney fee. Payable through the Court’s installments [sic] process.” This does not
conform to the trial court’s oral pronouncement. We accept the reporter’s transcript of
what the trial court said over the probation order prepared by the court clerk. (See
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) The order states the wrong amount
and also fails to capture the idea that defendant would have an opportunity for a
determination of his ability to pay. Further, the probation order does not clearly show
that payment of fees was not a condition of probation. (See People v. Bradus (2007)
149 Cal.App.4th 636, 641.) On remand, the trial court should clarify the probation order
regarding the attorney fees.
                                   VI. Narcotics Fees
       After imposing the minimum $200 restitution fine, the trial court imposed “other
fines and fees” stated in the probation report. Among these were fees of $50 and $150
for Health and Safety Code sections 11372.5 and 11372.7, plus penalties and assessments
on those amounts. The probation order states those amounts.
       Those fees are authorized when a defendant is convicted of specified narcotics
offenses. (See Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a).) In our

                                             21
prior opinion, we reversed defendant’s drug count as well as the imposition of the
associated fees. In light of our judgment on reconsideration, we conclude the fees were
properly imposed. We also agree with the parties that the fees cannot be made conditions
of probation. The probation order is unclear on this point and should be clarified to avoid
any suggestion that the fees are imposed as conditions of probation.
                                     DISPOSITION
       The probation order is vacated with directions to the trial court to impose a new
order consistent with this opinion. In all other respects the judgment is affirmed.



                                                           RAYE               , P. J.



We concur:



      NICHOLSON             , J.



      BUTZ                  , J.




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