Filed 4/16/15 P. v. McCarthy CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138682
v.
JAMES TIMOTHY MCCARTHY,                                              (Alameda County
                                                                     Super. Ct. No. 170220)
         Defendant and Appellant.

         Appellant James Timothy McCarthy (appellant) appeals his convictions for 10
counts of aggravated sexual assault of a child, continuous sexual abuse of a child, and
forcible rape of his daughter, Jane Doe. He contends he was deprived of a fair trial
because the trial court was biased and allied itself with the prosecution. He further
contends there was insufficient evidence of duress to support his convictions. Lastly, he
requests this court review sealed records to determine if the trial court properly found no
discoverable material subject to disclosure as Brady material.1 We affirm. We conclude
there was no judicial misconduct and sufficient evidence supports appellant’s
convictions. We also conclude the trial court did not err in denying disclosure of the
sealed records.




1
    Brady v. Maryland (1963) 373 U.S. 83.

                                                             1
                   FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
       Doe was 18 years old at trial. She testified that when she was six years old,
appellant, her adoptive father, showed her his penis and put her hand on it. She said this
happened multiple times each week. She would whine and complain that she did not
want it to happen. When asked why she did it, she responded: “Because he was supposed
to be my dad, and he told me to do it. If you don’t do something your dad tells you to do,
usually you get in trouble for it.” She described her father as a disciplinarian and said
that to discipline her, he would give her a time out, take something away, or sometimes
she would be spanked. She complied with his requests so she would not be disciplined
and because she was “afraid.” She said appellant told her it was their “little secret” and
asked her to promise not to tell anyone. She thought if she told anyone, she would get in
trouble.
       Doe was forced to perform oral sex on appellant more than once a week from the
time she was eight years old until she was 15 years old. This would sometimes cause her
pain because appellant would pull on her hair. When Doe was seven years old, appellant
touched her vagina with “[h]is fingers. Sometimes his mouth.” Doe remembered
appellant inserted his fingers into her vagina when she was 10 years old. She said she
performed these acts due to “fear” and it was a “matter of safety.” She was afraid to tell
anyone because “I didn’t know what [appellant] could have done . . . “I was scared out
of my mind that he would murder my mother if she found out. I was also worried he
would beat me.”
       When Doe was 15 years old, she was the victim of a sexual assault by a stranger.
She began going to therapy but did not tell the therapist about appellant’s abuse. She
testified she could talk about the stranger’s assault because there was no fear of
consequences, but she knew if she talked about appellant, the therapist could not keep it
confidential. She testified she strategized ways to avoid being alone with appellant
including locking herself in the bathroom.



                                             2
       When Doe began a sexual relationship with another 16-year-old, appellant became
angry. Doe’s mother (mother) testified that appellant “was really, really scary angry. I
mean, I thought he was gonna hurt her.” She testified that appellant was so enraged he
was “hitting [Doe].” Doe testified appellant expressed his anger by “rap[ing]” her. He
came into her room while she was dressing and dropped a red condom on the bed. She
knew appellant wanted to have sex with her and she felt afraid. Appellant handed her the
open condom to put on his penis and then he had sex with her.
       Doe began collecting appellant’s ejaculations. After appellant ejaculated in her
mouth, she would spit it into a tissue and save the tissue. She collected five tissues in the
box and turned them over to the police. She also included a note so “he wouldn’t get
away with it, even if something had happened to me.” She said she had periods where
she was suicidal due to the abuse. The Oakland Police Department criminologist
conducted a DNA analysis of the five tissues and concluded they contained semen and
sperm. Three of tissues also showed the presence of saliva. The criminologist matched
the DNA on the tissue to appellant’s DNA and found the profile would be expected to
occur in 1 in 175 quintillion members of the population. It would be “highly unlikely”
that “anyone else on this earth” could have provided the sperm.
       Doe made a pretext call to appellant from the Oakland Police Department. In the
call, appellant made several incriminating statements. He said, “Oh so you think I’m
gonna still try to touch you right?” He said that it would not happen again but he has
never “done anything to you, you did not approve of or want.” Doe stated they would not
have sex again and appellant said, “no” and then she asked appellant if she would have to
“touch you or suck you anymore” and he said, “[n]o.” He told her he did not want her to
be upset about it. She asked him if it ever happened at the first house they lived in and he
said no, just at “our house now” because she “had [her] own floor” and “had a lot more
freedom here.”




                                              3
Defense Evidence
         Appellant testified he never had Doe touch his penis and he never touched her
vagina, other than one instance when she had a rash as a child. He said the only time his
daughter ever put her mouth on his penis was when she was 16 years old. He testified
that she tried to put her mouth on his penis when she was 14 years old and he told her it
was not appropriate. He stated that she would try to touch his penis through his pants or
flash her breasts at him to get a reaction. When Doe told him about having sex with her
boyfriend, he testified he was calm, but became upset when he realized that she had left
her brother alone at the Bart station. He said that he “swatted her on the behind.” He hit
her three times.
         When Doe was 16 years old, she came to him and said she wanted to have sex
with him. He said he approached her as she was lying on the bed, but then he walked
away and did not have sex with her. On cross-examination, he testified he did not insert
his penis into her vagina, but that “[s]he grabbed me in a way that I entered her vagina
very briefly.” He claimed Doe only put her mouth on his penis one time that day, but on
cross-examination, he stated she sucked his penis more than once that day in order to
explain his statements during the pretext call.
Motion for Acquittal and Verdict
         At the close of the People’s case, appellant moved for acquittal pursuant to Penal
Code section 1118.12 based on insufficiency of the evidence. Appellant argued there was
insufficient evidence of duress for counts two through thirteen because there was no
evidence of actual force or threats. The prosecution argued duress was established by
evidence of psychological coercion based upon Doe’s age, the disparity in size, and
appellant’s role as an authority figure. As to counts two, three, and four which alleged
Doe was under 10 years old at the time of the assaults, defense counsel argued her
testimony was speculative as to when the incidents of oral copulation occurred, and there
was insufficient evidence the acts occurred before age 10. The court dismissed count two


2
    Unless noted, all further statutory references are to the Penal Code.

                                                4
after the prosecutor agreed there was an insufficient factual basis as to Doe’s age, but
found sufficient evidence for counts three and four. The court then denied the motion for
judgment of acquittal as to counts three and four finding sufficient evidence to sustain the
convictions.3
       A jury convicted appellant of six counts of aggravated sexual assault of a child by
oral copulation (§ 269, subd. (a)(4)), four counts of aggravated sexual assault of a child
by sexual penetration (§ 269, subd. (a)(5)), one count of continuous sexual abuse of a
child (§ 288.5, subd. (a)), one count of forcible oral copulation (§ 288a, subd. (c)(2)(A)),
and one count of forcible rape (§ 261, subd. (a)(2).) The court sentenced appellant to a
determinate term of 32 years followed by an indeterminate term of 150 years to life.
                                        DISCUSSION
       I. The Court Did Not Engage in Judicial Misconduct
       Appellant argues he was denied his due process right to a fair trial by an impartial
judge because the court “interjected herself” into the proceedings by taking “over
questioning for the prosecution,” expressing her “personal feelings,” and assisting the
prosecution. We disagree.
       “Although ‘the trial court has both the duty and the discretion to control the
conduct of the trial’ [citations], ‘the Due Process Clause clearly requires a “fair trial in a
fair tribunal,” [citation], before a judge with no actual bias against the defendant or
interest in the outcome of his particular case.’ [Citations.]” (People v. Harris (2005) 37
Cal.4th 310, 346 (Harris).) “‘The duty of a trial judge, particularly in criminal cases, is
more than that of an umpire; and though his power to examine the witnesses should be
exercised with discretion and in such a way as not to prejudice the rights of the


3
  The reporter’s transcript does not reflect the court’s ruling on counts five through
thirteen but it appears the motion was denied on all counts. Appellant, however, can raise
a sufficiency of the evidence claim to all counts on appeal. (See People v. Butler (2003)
31 Cal.4th 1119, 1126, quoting Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23,
fn. 17 [“‘Generally, points not urged in the trial court cannot be raised on appeal. . . . The
contention that a judgment is not supported by substantial evidence, however, is an
obvious exception’”].)

                                               5
prosecution or the accused, still he is not compelled to sit quietly by and see one
wrongfully acquitted or unjustly punished when a few questions asked from the bench
might elicit the truth. It is his primary duty to see that justice is done both to the accused
and to the people.’” (People v. Raviart (2001) 93 Cal.App.4th 258, 272, quoting People
v. Golsh (1923) 63 Cal.App. 609, 614-615.)
       A “‘trial court commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the defense or create the
impression that it is allying itself with the prosecution.’” (People v. Sturm (2006) 37
Cal.4th 1218, 1233, quoting People v. Carpenter (1997) 15 Cal.4th 312, 353, overruled
by statute on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096.) “Jurors
rely with great confidence on the fairness of judges, and upon the correctness of their
views expressed during trial.” (Id. at p. 1233.) “The role of a reviewing court ‘is not to
determine whether the trial judge’s conduct left something to be desired, or even whether
some comments would have been better left unsaid. Rather, we must determine whether
the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to
a perfect, trial. [Citation.]’” (Harris, supra, 37 Cal.4th at p. 347.)
       A.     Appellant’s Claim is Waived
       Where a defendant contends the court “‘consistently displayed a bias in favor of
the prosecution’” but never objected to the trial court’s participation in the examination
of witnesses, defendant has waived any claim of error. (People v. Raviart, supra, 93
Cal.App.4th at p. 269.) “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.) Here, appellant’s failure to
object on the ground of judicial bias forfeits the claim on appeal. (People v. Chatman
(2006) 38 Cal.4th 344, 397; Harris, supra, 37 Cal.4th at p. 350; People v. Snow (2003)
30 Cal.4th 43, 78.)
       B.     Appellant Has Not Demonstrated Judicial Bias
       We consider appellant’s claim of judicial misconduct on the merits and reject it.
Appellant’s examples fall into three categories: (1) the court was sympathetic to the


                                              6
prosecution; (2) the court was antagonistic to the defense; and (3) the court overstepped
its bounds during trial.
       i.     The Court’s Interaction with Prosecution Witnesses
       Appellant asserts the court displayed a sympathetic attitude to the victim and
assisted her with her testimony. Appellant argues the court improperly commented on
personal items Doe had with her in court. The court stated: “So the record should reflect
that she has a Rubik’s [C]ube, which is perfectly aligned. I don’t know if that’s just out
of the package. But good going. And then a picture that she has with her. Cute dog.” In
response to questions about the Rubik’s Cube and picture, Doe explained they are a
comfort to her. The court then responded to Doe’s statements that her biological father
and brother can solve the Rubik’s Cube, just like she can. Appellant cites no authority to
support his claim that the court’s comments were in any way improper. As the People
point out, the court was attempting to put Doe at ease and there is nothing improper about
the court being “nice” to a witness. She was an 18-year-old being asked to testify in
court about molestations by her father which presented an uncomfortable and
intimidating situation.4 (See Cal. Code Jud. Ethics, canon 3B(4) [“A judge shall be
patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with
whom the judge deals in an official capacity . . .”]; Cf. People v. Sturm, supra, 37 Cal.4th
at p. 1240 [it is misconduct for a trial judge to convey to the jury disdain for witnesses
and their testimony].)
       Appellant contends that the court improperly clarified Doe’s testimony. There are,
in fact, several examples throughout the witnesses’ testimony of the court clarifying
dates, time periods, and other facts. Appellant does not and cannot demonstrate these
clarifications are prejudicial or inappropriate. “‘Numerous courts including our own have
recognized that it is not merely the right but the duty of a trial judge to see that the


4
  Appellant also argues, without citation to authority, the court improperly referred to
Doe as “my dear.” While it may have been preferable not to use a term of endearment,
the court only used it once, in the context of trying to put the victim at ease. This isolated
incident was not prejudicial to appellant.

                                               7
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. Raviart, supra, 93
Cal.App.4th at p. 270, quoting People v. Carlucci (1979) 23 Cal.3d 249, 255.)
       According to appellant, one of these clarifications helped the prosecution establish
duress. Doe testified when appellant would ask her to touch him, she would whine about
it. The court clarified the time period, “Just for the record, we were talking about when
you were 7. Did you whine when you were 6, as well as sort of your response?” The
court’s clarification was not improper. A trial court’s participation in the examination of
witnesses involving “questions seeking to clarify the testimony” does not constitute
judicial misconduct. (People v. Raviart, supra, 93 Cal.App.4th at p. 270.) Here, the
court’s questions were “neither repetitious, disparaging, nor prejudicial.” (Id. at p. 271;
People v. Hawkins (1995) 10 Cal.4th 920, 947-948, overruled on other grounds in People
v. Lasko (2000) 23 Cal.4th 101, 109-110 [a trial judge may question witnesses to clarify
testimony or assist the jury in understanding the evidence].)
       Appellant also argues the court improperly engaged in an extensive colloquy with
Doe. In attempting to clarify Doe’s testimony about disclosing the abuse to her mother
and her mother calling the crisis hotline, the court asked Doe seven questions. The
questions summarized and clarified Doe’s testimony about the topic. “Evidence Code
section 775 “‘“confers upon the trial judge the power, discretion and affirmative duty . . .
[to] participate in the examination of witnesses whenever he believes that he may fairly
aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or
covering omissions, in allowing a witness his right of explanation, and in eliciting facts
material to a just determination of the cause.’’’ (Harris, supra, 37 Cal.4th at p. 350,
quoting People v. Carlucci , supra, 23 Cal.3d at p. 256; People v. Pierce (1970) 11
Cal.App.3d 313, 321 [“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.”].) We conclude “[t]he court’s
questions were neither repetitious, disparaging, nor prejudicial.” (People v. Raviart,
supra, 93 Cal.App.4th at p. 271.)


                                              8
       ii.    The Court’s Interaction with Appellant and Appellant’s Counsel
       Appellant asserts the court had an antagonistic attitude toward appellant and his
counsel. “A trial court commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the defense or create the
impression it is allying itself with the prosecution.” (People v. Carpenter, supra,15
Cal.4th at p. 353; People v. Fudge (1994) 7 Cal.4th 1075, 1107.) Here, “[w]e have read
each of the alleged instances of hostility in context. They fall far short of establishing
misconduct or ‘betray[ing] a bias against defense counsel.’” (People v. Carpenter, supra,
15 Cal.4th at p. 353, quoting People v. Wright (1990) 52 Cal.3d 367, 411, overruled on
other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.)
       Appellant argues the court limited any introductory testimony while appellant was
on the stand, but allowed such testimony from Doe. The record does not support this
assertion. Defense counsel asked appellant several introductory questions, including how
long he had been married, where he met his wife, and the type of work he did. The
prosecutor objected on relevance grounds when counsel asked appellant what he studied
in college and the court sustained the objection. After the prosecutor objected to the
details of appellant’s work history as irrelevant, the court overruled the objection and
allowed appellant to testify because it was “background and foundational.”
       Appellant also argues the court’s clarifying questions during his testimony
demonstrated bias. Appellant identifies two instances where the court asked specific
questions clarifying the time frame in which an incident occurred, one instance where the
court clarified who appellant meant when he used the term “her bedroom,” and one
instance where the court responded to an objection by the prosecutor that defense counsel
had not posed a proper question. Appellant asserts these questions were designed to
interrupt defense counsel’s questioning and demonstrated the court’s bias. We disagree.
The record demonstrates the court asked clarifying questions about specific dates, ages,
names, and time frames of other witnesses at trial including Doe, mother, and one of the
investigating officers. As we have stated, a judge may ask questions to clarify witness
testimony and to assure the evidence is fully developed. (People v. Raviart, supra, 93


                                              9
Cal.App.4th at p. 270; People v. Hawkins, supra, 10 Cal.4th at pp. 947-948; People v.
Abel (2012) 53 Cal.4th 891, 917, quoting People v. Santana (2000) 80 Cal.App.4th 1194,
1206 [“‘[T]he court has a duty to see that justice is done and to bring out facts relevant to
the jury’s determination’”]; People v. Carlucci, supra, 23 Cal.3d at p. 255 [“‘[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.’”].)
       Appellant next asserts the court contradicted him when he stated preseason for the
NFL began in September or October and preseason games were in October. When
defense counsel asked: “Pre-season?,” the court stated, “No. I can take judicial notice of
the fact that it is in August and may be the first week of September.” Defense counsel
stated, “I am with the judge on that one, but that’s all right.” Appellant then said, “I’m
sorry” and the court responded, “That’s all right.” While it may have been preferable for
the court to avoid such distracting comments, they were not prejudicial. Our Supreme
Court has held that even where a sarcastic or joking remark was improper, it does not
create prejudice if it could not have had an effect of the jury’s verdict. (People v. Abel,
supra, 53 Cal.4th at p. 916.) Here, appellant asserts the court’s comment was designed to
demonstrate the court’s “lack of belief in [appellant’s] credibility.” The comment could
just as likely been the court’s attempt to ease tension by reference to a shared area of
interest. (Id. at p. 915 [“[A]s with the other remarks made by the court throughout the
trial, the comment reflects the court’s propensity for quipping whenever the opportunity
arose”].)
       Appellant also claims that when he began to testify about a prohibited issue, the
court responded too “abruptly.” During his testimony, appellant began to talk about Doe
at the time of her adoption and said, “Well, she came to us fairly--.” The prosecutor
objected and the court said, “Whoa. I am with you now.” The court told the jury counsel
needed to appear in chambers before appellant responded. Outside the presence of the
jury, the court advised counsel it was concerned appellant would testify Doe was abused
before she came to live with appellant and defense counsel agreed. Defense counsel


                                             10
offered to move on to another topic, but the court stated that it needed to admonish
appellant directly, outside the presence of the jury. Appellant needed to understand it
was “not an appropriate subject” and the court did not want to risk contaminating the
jury. The court returned to the courtroom and told the jury, “I am going to need to take a
quick break outside of your presence because I need to put some things on the record that
are not for the jury’s purview.”
       In accordance with its duty to control the proceedings, when it became apparent
appellant was going to provide inadmissible evidence, the court interrupted appellant’s
testimony and conferred with counsel outside the presence of the jury. (§ 1044 [“It shall
be the duty of the judge to control all proceedings during the trial, and to limit the
introduction of evidence and the argument of counsel to relevant and material matters,
with a view to the expeditious and effective ascertainment of the truth regarding the
matters involved.”]; People v. Sturm, supra, 37 Cal.4th at p. 1237 [“The trial court has a
statutory duty to control trial proceedings, including the introduction and exclusion of
evidence.”])
       Next, appellant argues that when the court asked him about his tone of voice
during a dramatic interaction with his daughter, it showed the court disbelieved his
testimony. Appellant described an incident when Doe snuck up on him and put her hand
on his penis and tried to put her mouth on his penis. Appellant testified that he said,
“Honey, you need to leave.” The court then inquired: “In the same tone you are using
now?” and appellant said, “yes.” The court stated, “A very calm voice; is that how you
described it.” Appellate counsel attempts to draw an inference that this exchange
demonstrated the court “disbeliev[ed] [appellant’s] testimony.” We could, however,
reach the opposite conclusion and find the court was attempting to assist appellant by
emphasizing his calm voice. We cannot deduce the court’s reason from the record and
cannot conclude that the court’s attempt to clarify appellant’s tone was misconduct.
       In passing, appellant cites People v. Santana (2000) 80 Cal.App.4th 1194
(Santana), where the Second District reversed a conviction for judicial misconduct. In
Santana, the trial court asked extensive questions of the defense witnesses and belabored


                                              11
points of evidence that were adverse to Santana taking “on the role of prosecutor rather
than that of an impartial judge.” (Id. at p. 1207.) Defense counsel objected multiple
times to both the court’s questioning of witnesses and using facial expressions that
indicated the court did not believe the appellant. The Santana court held the trial court
“intervened as an adversary to such an extent” to constitute misconduct, and explained
the “record before us reveals the trial court repetitiously, disparagingly and prejudicially
questioned defense witnesses[.]” (Ibid.) “By continuing this adversarial questioning for
page after page of reporter’s transcript, the trial court created the unmistakable
impression it had allied itself with the prosecution in the effort to convict Santana. These
instances of impropriety are so egregious as to require reversal of Santana’s conviction.”
(Ibid.)
          Unlike Santana, we do not find the court was allied with the prosecution or biased
against appellant or defense counsel. On appeal, appellant fails to cite examples where
the court made rulings favorable to the defense or assisted during appellant’s testimony.
At one point during cross-examination of Doe, the prosecutor objected that defense
counsel had mischaracterized Doe’s testimony. The court sustained the objection and
provided a detailed explanation to defense counsel and then stated, “But I understand
what you’re getting to and I just think the way it is characterized I am just going to
sustain it.” Counsel stated he understood and the court replied, “You got it. We just have
to get it in the right form.” At another instance, during the direct examination of
appellant, the court sustained an objection by the prosecutor to a question about Doe
manipulating her brother. After a few additional questions, the court stated, “I am going
to reverse my ruling” and explained the testimony was relevant to appellant’s state of
mind. (People v. Raviart, supra, 93 Cal.App.4th at pp. 271-72 [“Defendant contends the
trial court “‘consistently displayed a bias in favor of the prosecution’” but offers no
concrete example of any such bias, and we find none ourselves.”].)
          Finally, at the sentencing hearing the court complimented both counsel on the
record: “Counsel, I really want to commend each of you for trying what I will call an
admirably professionally tried and competently tried case for both the People, as well as


                                              12
for the defense. [¶] You have a lot of legal acumen, both of you. Clearly your experience
in trying cases shows, but your professionalism and your respect that you showed to one
another and to the Court in this sensitive type of a case is absolutely noted by the Court,
and it really has been an honor for me as the judge to have both of you in this courtroom
to try this matter.” (See People v. Wright (1990) 52 Cal.3d 367, 411, overruled on other
grounds in People v. Williams (2010) 49 Cal.4th 405, 459 [finding no merit to appellant’s
contention that the judge was biased against the appellant or defense counsel where “the
trial court voiced considerable praise for counsel’s abilities and performance.”].)
       iii.   The Court Did Not “Overstep” its Role
       Appellant asserts the court overstepped its bounds by questioning witnesses and
providing explanatory rulings restating witness testimony. The court asked questions of
all six witnesses. As detailed in the previous two sections, many of these questions were
to clarify facts for the jury. One example appellant provides is during the testimony of
the criminalist, the court asked several clarifying questions. The court stated, “For those
of us who took biology a long time ago, I just want to make sure we are all following
you” and then asked about the DNA typing of epithelial cells. Later the court asked the
criminalist to explain what alleles are. When the witness identified the match of
appellant’s profile to the examined cells from the tissues as 1 in 175 quintillion, the court
asked, “It is like 18 zeros?” When the witness stated the probability as 1 in 127
quintillion, the court asked if the earth has less people and the witness said the earth has 7
billion people and the court asked if this number is greater than that. We do not need to
go through a myriad of examples because we conclude that the court asked questions of
both prosecution and defense witnesses equally. (Cf. People v. Sturm, supra, 37 Cal.4th
at p. 1241.) The court’s questions were limited in quantity and sought only to clarify
each witnesses’ testimony. We have “thoroughly reviewed the transcript of the trial and
each instance of the trial court’s participation in the questioning of witnesses, and we are
satisfied that the trial court’s involvement did not constitute misconduct.” (People v.
Raviart, supra, 93 Cal.App.4th at p. 271.)



                                             13
        Appellant cites two instances where the court summarized Doe’s testimony in
asking a question or ruling on an objection. The court summarized Doe’s testimony
about why she remembered the first time she orally copulated appellant and asked Doe if
the court’s summary was correct. In another exchange, the prosecutor asked Doe if she
feared there would be consequences if she did not perform sex acts with appellant when
she was 12 or 13 years old. Doe replied yes and the prosecutor asked, “What did you
think might happen?” Defense counsel objected to the question as “[a]sked and
answered” and the court overruled the objection and stated that an earlier response was
not referencing Doe at age 12 or 13. The court stated, “I know she has described the
safety issue, but I think more specifically he is asking, What did you think, in fact, would
occur. I know she has described some things when she was at 6-ish and 7, but I don’t
know that we have 12 and 13. It’s overruled.” The prosecutor asked a few questions
about her safety concerns at ages 12 and 13 and Doe seemed not to understand the
questions. The court then interjected, “She did say that she felt there was a safety issue,
she felt in terms of trying to get out of the situation, she needed to tell someone, and she
was scared out of her mind that the [appellant] might murder her mother, that he would
beat her if she went about it the wrong way. So that is part of the testimony now,
Counsel.”
        We do not endorse the trial judge’s explanatory rulings restating testimony. “[W]e
would not endorse all of the trial court’s questioning quoted above and, indeed, would
find some of it inappropriate. On the facts of this case, however, we find no prejudice.”
(Harris, supra, 37 Cal.4th at p. 350.) While we find that some of the court’s comments
“would have been better left unsaid,’” we do not believe the court’s behavior “‘was so
prejudicial that it denied [defendant] a fair, as opposed to a perfect, trial.’” (People v.
Snow, supra, 30 Cal.4th at p. 81, quoting United States v. Pisani (1985) 773 F.2d 397,
402.)
        The court was actively engaged in the trial but did not express its personal beliefs
or exhibit bias toward appellant. “A careful examination of the record convinces us that
the judge’s questions were not a guise for conveying to the jury the court’s disbelief in


                                              14
defendant’s evidence but were asked to get the truth established, and that they fairly and
impartially brought out relevant and material testimony.” (People v. Rigney (1961) 55
Cal.2d 236, 244.)
       C.     Appellant Cannot Demonstrate Prejudice
       The Supreme Court has applied the standard of People v. Watson (1956) 46 Cal.2d
818 (Watson), to analyze prejudice in like circumstances. (Harris, supra, 37 Cal.4th at
pp. 350-351.) Under the Watson standard, reversal is required if it is reasonably probable
a different outcome would have resulted in the absence of the misconduct. Here, the
evidence of appellant’s guilt was overwhelming. Doe testified to years of abuse and
provided clear testimony about the types of abuse beginning at age six. She collected
appellant’s ejaculations in tissues and saved them. The criminologist testified the sperm
contained appellant’s DNA. In the pretext call, appellant admitted the abuse by telling
Doe she would no longer have to touch him, suck him, or have sex with him. Appellant
admitted when Doe was 16 years old, she performed oral sex on him and his penis
“entered her vagina very briefly.”
      Further, we presume the jurors followed the court’s instructions and decided the
case based on the evidence before them. (Harris, supra, 37 Cal.4th at p. 350.) The court
instructed the jury: “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.” It is not reasonably probable that the jury
would have reached a different verdict in the absence of the court’s participation in the
trial. (Id. at p. 347 [some of trial judge’s questions to defendant were inappropriate, but
not prejudicial because the evidence of guilt was strong].)
       II. Duress
       Appellant contends there was insufficient evidence of duress for his convictions
on counts three through fourteen because appellant never threatened Doe to get her to
agree to the sexual acts. We disagree.
       In reviewing a claim of insufficiency of the evidence of duress, we determine
whether, on the record as a whole, any rational trier of fact could find appellant guilty


                                              15
beyond a reasonable doubt. (People v. Manibusan (2013) 58 Cal.4th 40, 87, citing
People v. Zamudio (2008) 43 Cal.4th 327, 357.) “[W]e review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.” (Ibid.)
       The convictions for aggravated sexual assault of a child under section 269
reference section 288(a) for oral copulation and section 289 for sexual penetration. These
two sections require the sexual acts be committed “against the victim’s will by means of
force, violence, duress, menace or fear of immediate and unlawful bodily injury.” (§§
288, subd. (c)(2)(A), 289, subd. (B).) Duress is defined as “a direct or implied threat of
force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary
susceptibilities to perform an act which otherwise would not have been performed, or
acquiesce in an act to which one otherwise would not have submitted. The total
circumstances, including the age of the victim, and his or her relationship to the
defendant, are factors to consider in appraising the existence of duress.” (§ 261, subd.
(b).) Other pertinent factors include threats to harm the victim, physically controlling the
victim, and warning the victim that revealing the molestation would jeopardize the
family. (People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran).) That an appellant
does not use force or overt threats does not prevent a finding of duress because the
victim’s testimony should be considered in light of her age and relationship to the
appellant. (Ibid.)
       Appellant claims duress is determined under an objective standard based on the
appellant’s wrongful act, not the victim’s response to it. (People v. Soto (2011) 51
Cal.4th 229, 246 (Soto) [holding the victim’s consent is not a defense to the crime of
lewd acts on a child under age 14 under section 288 and has no effect when the lewd acts
are committed by force, violence, duress, menace, or fear].) The People argue that the
objective test only applies to violations of section 288 and not to violations of section 269
as charged here, because section 269 contains the language against the victim’s will
allowing for the court to look at the victim’s response. We need not resolve this issue
because, as detailed below, there was sufficient evidence appellant’s actions created a


                                             16
“‘direct or implied threat of force, violence, danger, hardship or retribution sufficient to
coerce” Doe to acquiesce to his sexual demands and that she did so out of “fear” and for
her “safety.” (Soto, supra, at p. 246 [the jury could find duress without overt threats
based on the “inherent imbalance of power in an encounter between a child and an adult
bent on sexual conduct”].)
       Appellant relies on People v. Espinoza and People v. Hecker, where two courts
concluded fathers’ molestations of their daughters were not accomplished by duress.
(People v. Espinoza (2002) 95 Cal.App.4th 1287 (Espinoza); People v. Hecker (1990)
219 Cal.App.3d 1238 (Hecker).) In Espinoza, defendant molested his daughter on
multiple occasions. The daughter was “‘too scared to do anything’” and she was afraid
defendant “‘would do something’” if she reported what happened. (Espinoza, supra, at
p. 1293.) The court, relying on Hecker, held that the daughter’s fear, without more, did
not establish duress. In Hecker, the court found no duress where a stepfather molested
his 13-year-old stepdaughter and told her not to reveal the molestations because it would
hurt his marriage and career. (Hecker, supra, 219 Cal.App.3d at p. 1242.) The victim
admitted she was not afraid stepfather would harm her but she felt “‘pressured
psychologically.’” (Id. at p. 1250.) The Hecker court held that psychological coercion
without more does not establish duress. (Id. at pp. 1250-1251.)
       This argument that “‘[p]sychological coercion’ without more does not establish
duress’” has been rejected by several courts.5 In the context of a family member with a
young victim the “very nature of duress is psychological coercion.” (Cochran, supra,
103 Cal.App.4th at p. 15; People v. Senior (1992) 3 Cal.App.4th 765, 775 [“duress
involves psychological coercion”]; People v. Superior Court (Kneip) (1990) 219
Cal.App.3d 235, 238 (Kneip) [psychological coercion can amount to duress].)
       This case is more akin to Cochran, where the court found sufficient evidence of
duress where a father was convicted of forcible lewd conduct on his nine-year-old
daughter. (Cochran, supra, 103 Cal.App.4th at p. 12.) The daughter testified she was not

5
  In Cochran, the Fourth District, which decided Hecker, disapproved of this language,
finding it “overly broad.” (See Cochran, supra, 103 Cal.App.4th at p. 15.)

                                             17
afraid of her father but her father told her not to tell anyone because he would get into
trouble and go to jail. (Ibid.) The court noted that even though the defendant did not beat
or punish her, he still coerced her into performing the various sex acts. (Id. at p. 15.)
Cochran held the daughter was a “vulnerable and isolated child who engaged in sex acts
only in response to her father’s parental and physical authority.” (Ibid.) Given the age
and size difference between defendant and the victim, their father-daughter relationship,
and the implicit threat that she would break up the family if she did not comply, there was
sufficient evidence of duress. (Id. at p. 16; see also People v. Senior, supra, 3
Cal.App.4th at p. 775 [finding duress where a father molested his 14-year-old daughter
because the defendant was the victim’s father and an authority figure to her; defendant
threatened to hit her; and he told her that if she did not submit to the molestation that it
could result in a divorce, thus jeopardizing the family unit].)
       In People v. Veale, the court held there was sufficient evidence of duress where
the defendant molested his seven-year-old stepdaughter. (People v. Veale (2008) 160
Cal.App.4th 40 (Veale).) The stepdaughter testified that although defendant never
threatened her, she was afraid to tell her mother because defendant might hurt her or do
something to her mother. (Id. at pp. 44-45.) She stated the defendant did not threaten her
or use physical force and that on one occasion, when defendant asked her to put her
mouth on his penis, she got mad and threw clothes around the room. (Id. at p. 46.) The
court found that although defendant never threatened the stepdaughter, numerous factors
established duress: defendant was an authority figure in the home; the stepdaughter
feared defendant might harm her or her mother; the stepdaughter’s young age; and the
difference in size between defendant and the stepdaughter. (Id. at p. 47.)
       The factors identified in Cochran and Veale are present here. The abuse began
when Doe was very young, only six years old, and continued until appellant was arrested
when she was 16 years old. Appellant was Doe’s father and an authority figure in the
home. When Doe testified why she acquiesced to her father’s abuse, she stated:
“Because he was supposed to be my dad, and he told me to do it. If you don’t do
something your dad tells you to do, usually you get in trouble for it.” She described her


                                              18
father as a disciplinarian and said that to discipline her, he would give her a time out, take
something away, or spank her.
       Appellant argues there was no evidence of any negative consequences when Doe
refused to submit to her father’s requests. But this does not disprove duress. (See Veale,
supra, 160 Cal.App.4th at pp. 44-45.) Appellant exercised authority and power over Doe
and could discipline her. (See Kneip, supra, 219 Cal.App.3d at p. 239 [where the
defendant is a family member and the victim is young, “the position of dominance and
authority of the defendant and his continuous exploitation of the victim” is relevant to
establishing duress]; see also Cochran, supra, 103 Cal.App.4th at p. 15 [finding duress
where the victim was a “vulnerable and isolated child who engaged in sex acts only in
response to her father’s parental and physical authority”].) Doe testified she complied
with his requests so she would not be disciplined and because she was “afraid.”
       There was a substantial age difference between Doe and her father. When the
abuse began Doe was 6 and appellant was 41 years old. There was also a size difference.
Doe was an “average” size child and appellant was 5’8” tall and weighed approximately
150 to 160 pounds when Doe was a child. The age of the victim and her relationship to
appellant are factors to be considered in appraising the existence of duress. (See People
v. Pitmon (1985) 170 Cal.App.3d 38, 51 [“We note that at the time of the offenses, [the
victim] was eight years old, an age at which adults are commonly viewed as authority
figures. The disparity in physical size between an eight-year-old and an adult also
contributes to a youngster’s sense of his relative physical vulnerability.”].)
       Doe believed that disclosing the abuse would jeopardize her family. Like the
victim in Cochran, Doe testified appellant told her it was their “little secret” and asked
her to promise not to tell anyone. “A simple warning to a child not to report a
molestation reasonably implies the child should not otherwise protest or resist the sexual
imposition.” (People v. Senior, supra, 3 Cal.App.4th at p. 775.) Doe testified if she told
anyone, she would get in trouble. Doe’s participation was motivated by “fear” and she
described it as a “matter of safety.” She was afraid to tell anyone because “ I didn’t know
what [appellant] could have done.” She said, “I was scared out of my mind that he would


                                             19
murder my mother if she found out. I was also worried he would beat me.” Both Doe
and her mother testified to appellant’s angry and physical response when Doe began a
sexual relationship with her boyfriend. Doe’s mother testified that appellant “was really,
really scary angry. I mean, I thought he was gonna hurt her.” She testified that appellant
was “hitting [Doe].” Doe testified that appellant expressed his anger by “rap[ing]” her.
       The evidence amply supports a finding of duress. Doe was abused by her father,
an authority figure in the home, beginning at the age of six. When a victim is young and
is molested by her father in the family home, “in all but the rarest cases duress will be
present.” (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.) We conclude that given the
father-daughter relationship, appellant’s position of authority in the family, the difference
in age and size between appellant and Doe, appellant’s instruction to keep the abuse a
secret, and Doe’s testimony about her ongoing fear, there is sufficient evidence to support
appellant’s convictions on all counts.
       III. Doe’s Psychiatric Records
       Appellant requests this court review the sealed records from Doe’s therapy
sessions to determine if the trial court ruled correctly there was no discoverable material
that needed to be disclosed to the defense.
       Before trial, defense counsel subpoenaed Doe’s records from her therapy sessions
following the 2009 sexual assault by a stranger. The packet of psychiatric records was
reviewed by a judge before the preliminary hearing. The prosecution requested the trial
judge review the records to determine if there was any discoverable material. Defense
counsel asked that the court disclose any impeaching or potentially exculpatory material
under Brady v. Maryland, supra, 373 U.S. 83. The court reviewed the records in camera
and stated: “there is nothing in the records I see as Brady” and nothing that would
preclude defense counsel from asking Doe about whether she disclosed her father’s abuse
to her therapist. The court held a further hearing to determine if defense counsel could
question Doe about whether she specifically told the psychotherapist about abuse by her
father. The court reiterated its finding: “I don’t find that the records are essential to the



                                              20
defendant’s right to confrontation as it is now presented . . . [¶] I am ruling that the
records won’t be disclosed.”
       An appellate court’s role is to review the confidential records that were not
disclosed by the trial court “to determine whether they were material and should have
been disclosed.” (People v. Martinez (2009) 47 Cal.4th 399, 453.) We have reviewed
Doe’s sealed therapy records in camera and conclude the undisclosed information was
not material to defense and the trial court did not err in denying disclosure.
                                       DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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