Filed 4/16/15 P. v. McGee CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050402

         v.                                                            (Super. Ct. No. RIF140673)

MARLO SHEREE McGEE,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County,
W. Charles Morgan, Judge. Reversed.
                   Geragos & Geragos and Mark J. Geragos for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
              Marlo Sheree McGee appeals from a judgment after a jury convicted her of
second degree murder and assault resulting in the death of her one-month-old daughter
Keira Stovall (Keira). McGee argues the following: (I) the trial judge committed
misconduct; (II) the trial court erred in excluding evidence; (III) the trial court erred in
instructing the jury; and (IV) insufficient evidence supports her murder conviction.
Because we conclude the cumulative effect of the judicial misconduct and evidentiary
errors requires reversal, we need not address her instructional error claim. We reverse
McGee’s convictions.
                                           FACTS
              McGee and Michael Stovall met in June 2006. One year later, McGee
became pregnant, and they moved in together. McGee’s 10-year-old-son, Daivon Cook,
whose legal guardian was McGee’s father, Ernest McGee (Ernest), moved in with them.
Keira was born full term by cesarean section on November 16, 2007. Thirty-year-old
McGee and Keira went home four days later; Keira was petite but otherwise healthy.
After a doctor visit in December, McGee used a humidifier to treat Keira’s congestion.
              On December 15, 2007, Stovall woke up around noon. That afternoon,
McGee took Cook to a family member’s house and ran errands while Stovall watched
Keira. When McGee returned home about 90 minutes later, Stovall left to run errands.
Stovall returned home about 9:00 p.m., and he greeted McGee and Keira, who were in
the master bedroom while Cook was in his bedroom. McGee ordered pizza. She ate in
her room with the door closed while she watched Keira. Cook ate in his room with the
door closed. Stovall was in the living room. Cook played with Keira before he went to
bed; she seemed to be well. About 10:00 p.m., McGee took Methadone, Dilaudid, and
Xanax to treat her leg pain caused by sickle cell beta-thalassemia (sickle cell), which she
had suffered from since she was about 13 years old. About one hour later, McGee
breastfed Keira. They fell asleep on the bed.



                                               2
              Sometime after midnight, Stovall got up and went into the master bedroom
to use the master bathroom. Keira was crying as McGee changed her clothes. Stovall
returned to the living room closing the master bedroom door behind him. He watched
television and fell asleep. At some point, McGee took a second dose of Methadone and
Dilaudid. McGee laid Keira in the bassinet, laid down on her bed, and fell asleep.
              About 3:00 a.m., McGee shook Stovall awake and hysterically told him that
Keira was not breathing. Stovall ran into the bedroom, lifted up Keira’s shirt, and put his
hand on her chest. Keira was warm to the touch, but she was not breathing and her heart
was not beating. Stovall told McGee to call 911, which she did.
              Deputy Sheriff Christopher Loucks arrived at the apartment and knocked
on the door. Stovall answered the door, said his daughter was not breathing, and led him
to Keira. When Loucks entered the bedroom, he saw McGee standing in the bedroom,
pleading with him to help Keira because she was not breathing. Loucks looked into the
crib and saw Keira lying on her back with her eyes closed. Loucks could not get a pulse,
and it did not appear Keira was breathing. He picked up her limp body. He pinched her
leg, but she was unresponsive. Loucks started CPR. Loucks carried Keira outside so
paramedics could begin treatment immediately. Another deputy assisted Loucks with
CPR until paramedics arrived.
              When paramedic Aaron Duncan arrived, Keira did not have a pulse, and he
performed CPR. In the ambulance, Duncan determined Keira’s heart was not beating.
Duncan and another paramedic performed CPR and intubated her. Duncan did not
observe any injuries to Keira’s head. They arrived at the hospital. Doctors pronounced
Keira dead 34 minutes later; she was one month old.
              At the hospital, Deputy Sheriff Paul Lonthair spoke with McGee, who
drove to the hospital with Stovall and Cook. McGee told Lonthair that at about 2:00 or
2:30 a.m., she fed Keira, changed her diaper, laid her in the bassinet, and went to bed.
She told him that Keira seemed to be well.

                                             3
              Deputy Sheriff John Lenton also spoke to McGee at the hospital. McGee
told Lenton that she was in her bedroom with Keira while Stovall was sleeping in the
living room. She told him that she fed Keira at 2:30 a.m., changed her diaper, and laid
her in the bassinet on her stomach with a pacifier in her mouth. McGee went to sleep.
McGee stated she woke up about 3:30 a.m. and discovered Keira was not breathing; she
had the pacifier partially in her mouth but there were no other obstructions. She said
Keira had not been cranky, was acting normal the previous week, and did not have a
history of breathing difficulties. McGee stated she was Keira’s primary caregiver and
Keira had not suffered any injuries before her death. McGee said she had given birth to
two children, Keira and Cook. She told Lenton that she was taking Methadone, Dilaudid,
and Demerol. A little later, Lenton asked McGee whether she had another child. McGee
admitted she had a third child, which she described as an “abortion.” When Lenton asked
her why she described her child, Darrion Cook (Darrion),1 in that manner, McGee said
she did not remember and he did not live with her.
              An autopsy later revealed Keira had three impact sites to her head. She had
a fracture that covered about half the length of her skull.
              An information charged McGee with first degree murder (Pen. Code, § 187,
subd. (a); all further statutory references are to the Pen. Code, unless otherwise indicated)
(count 1), and assault on a child under eight years old resulting in death (§ 273ab). The
information alleged that on October 31, 1997, McGee suffered a prior serious felony
conviction (§ 667, subd. (a)), and a prior strike conviction (§§ 667, subds. (c), (e)(1),
1170.12, subd. (c)(1)), for child abuse (§ 273a, subd. (a)).




1            His name is also spelled Darion in other parts of the record. We will refer
to him as Darrion as written in McGee’s probation report.


                                              4
Pretrial
              Before trial, the prosecutor filed the following: (1) a trial brief requesting
admission of evidence pursuant to Evidence Code section 1101, subdivision (b); and (2) a
motion to limit the defense expert’s testimony. In the first motion, the prosecutor sought
to admit evidence that in 1997 McGee was convicted of felony child abuse while
personally inflicting great bodily injury causing the child to become comatose and suffer
permanent paralysis. The prosecutor alleged McGee shook seven-month-old Darrion,
which resulted in his severe disability, and after a jury convicted her, she served seven
years in prison where she was incarcerated until 2003. The prosecutor argued the
evidence was relevant to prove McGee’s prior knowledge of abusive head trauma to
infants, lack of misfortune or accident, and intent.
              In the second motion, the prosecutor explained McGee’s proposed expert,
Dr. Marvin Pietruszka, would testify it was probable Keira fell from McGee’s arms while
McGee was severely impaired by her prescription medications and Keira’s death was
accidental. The prosecutor argued Pietruszka was unqualified to offer an opinion on the
“cause, mechanism, and manner of . . . death” or the “conditions of the nervous system.”
Additionally, the prosecutor argued Pietruszka’s opinions were speculative and irrelevant
because there was no evidence McGee was impaired or Keira fell.
              McGee filed the following: (1) a trial brief opposing the admission of
evidence pursuant to Evidence Code section 1101, subdivision (b); and (2) a motion
opposing the prosecutor’s motion to limit her expert’s testimony. In the first motion,
McGee opposed admission of evidence of her prior conviction because there was no
witness who could identify McGee as the perpetrator of the prior abuse, there was no
common design or plan between the two cases, and the prior case was too remote in time.
In the second motion, supported by a letter from Pietruszka, McGee detailed Pietruszka’s
education, training, and 30 years of experience and argued he was eminently qualified to
offer an opinion on Keira’s cause of death and the effects of McGee’s medications.

                                              5
              At a pretrial hearing, the trial court ruled the prior conviction evidence was
admissible in the prosecutor’s case-in-chief. With respect to the prosecutor’s motion
regarding expert testimony, the court stated he did not think he should or could limit the
expert’s testimony to the extent the prosecutor requested. The court stated an expert
could opine Keira died from blunt force trauma, but the court added “there is not an
expert in the universe” who could testify whether her death was an accident or a crime.
The court stated the experts could only testify “there are numerous ways this blunt force
trauma was caused . . . .” The court ruled Pietruszka could testify and “[t]hen we have
this difference of opinion possibly with experts, and that’s for the trier of fact to make the
determination.” The court added that if evidence concerning medications “bec[ame]
relevant” Pietruszka could testify concerning the medications’ side effects on an
individual generally but not on a specific occasion.
Trial
Prosecution’s Witnesses
              Stovall testified McGee’s pregnancy was high risk. Stovall stated that
when McGee ran errands and he watched Keira, she seemed “normal.” When asked, he
agreed Keira had a “good set of lungs” and a “unique” cry. He explained that when he
got up to use the bathroom, Keira was fussy and crying.
              On cross-examination, Stovall stated McGee cared for Keira properly the
day she died. He added that she was a loving mother to Keira and Cook. He never saw
her do anything inappropriate with Keira. He explained that Keira was crying when
McGee changed her because she did not like to be changed, and he did not witness
McGee do anything odd. Although both he and McGee were watching their respective
televisions, Stovall did not hear Keira cry or any other noises after he left the bedroom.
After his recollection was refreshed, Stovall testified McGee told him that she bumped
Keira’s head while bathing her. On redirect examination, after his recollection was
refreshed, Stovall stated that on December 17 he told detectives that Keira did not hit her

                                              6
head and she had never been dropped. Stovall admitted that after McGee was
incarcerated, she told him that she bumped Keira’s head on the bathtub. After Stovall
testified he did not hurt or kill Keira on redirect examination, he also stated he did not
observe McGee hurt or kill Keira.
              Cook, who was 15 years old at trial, testified that immediately after Keira
died, McGee told him not to worry because she wanted to have another baby. Cook said
he interpreted this comment as her attempt to comfort him. On cross-examination, Cook
testified he lived with McGee from first to fifth grade. The following colloquy occurred:
              “[Defense counsel]: What type of mom was she to you, sir?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: Was your mom ever abusive to you?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: Has your mom ever hit you?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: If you all will approach.
              “(Discussion held at sidebar, off the record.)
              “[Trial court]: All right. Next question, please.”
              Cook testified that when he lived with McGee she treated him and Keira
well and she was nice to both of them. Ernest testified McGee did not tell him about any
injuries Keira suffered before her death.
              The parties stipulated to the following: On September 5, 1997, McGee was
convicted of willfully causing a child’s life to be endangered under circumstances likely
to cause great bodily harm (§ 273a, subd. (a)), while personally inflicting great bodily
injury causing the child to become comatose and suffer permanent paralysis
(§ 12022.7, subd. (b)).

                                              7
              Dr. Karen Winston, a pediatrician, testified Keira did not have any medical
issues when she was born. Winston stated there were no abnormalities in her blood work
or her neurology. She described Keira as a “term, active, stable newborn[]” who was
petite because McGee smoked.
              The prosecutor offered the testimony of Dr. Clare Sheridan, a forensic
pediatrician, who also testified at McGee’s 1997 trial. She testified concerning child
head trauma, specifically shaken baby syndrome, which is also called acceleration-
deceleration injury. She explained that in 1996 she examined seven-month-old Darrion,
who was comatose and intubated. She stated Darrion was posturing, which indicated he
had suffered a brain injury. She said he had a shunt in his head and he suffered seizures
and subdural and retinal hemorrhaging. She explained his injuries were severe and were
likely caused by acceleration-deceleration trauma. She stated he was spastic, could not
communicate, could not feed himself, and was dependent on others for all his care. On
cross-examination, Sheridan stated that in her over 20-year practice it was common for a
child to suffer a skull fracture after falling from a bed. On redirect examination, Sheridan
said she had seen a child die after falling off a bunk bed.
              Dr. Aaron Gleckman, the pathologist who performed Keira’s autopsy,
testified concerning his education, training, and experience. Gleckman stated X-rays
revealed Keira had no body fractures or body trauma. His external examination revealed
no visible trauma to her head or body other than a scratch to the bridge of her nose. His
internal examination revealed no trauma to the chest, neck, back, abdomen, or pelvis, and
no natural diseases. He explained a baby’s skull is elastic and consequently it takes more
force to fracture a baby’s skull than an adult’s skull, which is more brittle.
              Based on his examination, Gleckman discovered “at least three, areas of
distinct impact sites[]” on her head. He stated this meant her head was “most likely”
slammed against an object three times, which caused bleeding throughout the head,
including epidural bleeding. He said there was a two-and-one-quarter-long fracture that

                                              8
covered about half the left side of her head. He opined it would take “a lot for force” to
create these injuries. Gleckman explained one of the impact points showed fresh
bleeding, and two showed fresh and old bleeding. He stated the latter two injuries were a
couple days to a week old. He opined the lack of brain swelling indicated she died
“pretty quickly” after having suffered the injuries, which he described as “massive head
trauma” caused by intentional acts. He explained she would have been unconscious
within seconds or minutes of the injuries and dead within minutes and she could not have
eaten after the injuries. He opined she died from blunt force head trauma. Gleckman did
not think the massive head trauma could have been caused by bumping her head against
the wall, bumping her head against a baby carrier handle, or being dropped. He said
those incidents would not have caused the “huge amount of trauma” Keira suffered as a
result of a “great deal of force.” During direct examination, he repeated three times
someone caused Keira’s injuries “intentional[ly].” Defense counsel did not object.
              On cross-examination, Gleckman testified Keira suffered a simple linear
fracture. Gleckman opined one blow could have caused all three injuries to Keira. When
defense counsel asked whether dropping an infant in a bathtub could cause a subgaleal
hemorrhage, the trial court sustained the prosecutor’s relevance objection. Gleckman
agreed one fracture could result from dropping a child from a specified height onto a hard
surface. Counsel questioned Gleckman about whether Keira had any type of disease.
              “[Defense counsel]: Now, sir, throughout sections of many blood vessels,
there were what is called erythrocytes having a sickle cell appearance. Is that correct?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: Sir, you mentioned before that the child had no
diseases. Do you recall that?
              “[Gleckman]: No diseases that I found, that’s correct.



                                             9
              “[Defense counsel]: If in fact cells are located that has [sic] a sickle cell
appearance, would that cause you to believe that the child has suffered or had some type
of disease?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Overruled.
              “[Gleckman]: Well, I didn’t observe that. I have a differing opinion. I’m
not sure if your question is hypothetical or particular to this case.
              “[Defense counsel]: Well, sir, there was a neuropathology report that was
authored by Dr. Erlich. Is that correct?
              “[Gleckman]: Correct.
              “[Defense counsel]: You did read that report. Correct?
              “[Gleckman]: Yes.
              “[Defense counsel]: She noted that there were cells that had the sickle cell
appearance. Is that correct?
              “[Gleckman]: She noted that, yes.
              “[Defense counsel]: Doctor, what is sickle cell?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.”
              On redirect examination, the prosecutor asked, “And in Keira[’s] . . . case,
is there any chance, any possibility that this was an accidental trauma that caused her
death?” Gleckman answered, “No.” The trial court overruled defense counsel’s asked
and answered objection.
Defense’s Witnesses
              Defense counsel gave his opening statement before the presentation of the
defense’s witnesses. Counsel stated McGee had a painful genetic disorder that required
her to take heavy medications. Counsel said the evidence would demonstrate the
medications caused McGee to be unsteady, unconscious, and unintelligible. He added an

                                              10
expert toxicologist would testify concerning the medications’ side effects. Counsel
concluded the expert would testify Keira’s injuries were consistent with an accident.
              McGee testified her pregnancy was high risk because she had a blood
disorder, sickle cell beta-thalassemia, which caused her excruciating and debilitating
pain. She was hospitalized four or five times during her pregnancy and was prescribed
Methadone and Dilaudid. She said that after Keira was born, she was prescribed
Methadone, Dilaudid, and Xanax, which made her drowsy, forgetful, and relaxed. She
explained that on the night Keira died, she took all three medications about 10:00 p.m.,
and because her legs hurt she took Methadone and Dilaudid again about 1:30 a.m. She
ordered pizza because she could not stand and cook—her legs hurt and she did not feel
well. She said Keira fell asleep on the bed about 11:00 p.m. As she changed Keira’s
diaper and clothes, Stovall walked through the bedroom to use the restroom, and he
kissed Keira. After he returned to the living room, she laid Keira in the bassinet. McGee
stated that after she woke up, she checked on Keira and she was not breathing. She put
Keira down and got Stovall, who saw Keira was not breathing and told her to call 911.
              McGee explained that before December 2007, there were two incidents
where Keira injured her head. The first time, McGee was giving Keira a bath and when
she laid her on the counter, Keira lifted her head and bumped it on the counter. The
second time, McGee held Keira while she walked and as she turned the corner, she
bumped her head against the wall. McGee admitted she was convicted of abusing
Darrion but insisted she did not shake him. McGee stated Keira did nothing to make her
lose control and her crying did not irritate her. She denied ever hitting or harming Keira.
              On cross-examination, McGee testified her doctor told her she could
breastfeed despite the fact she was taking medication but she had to wean Keira off breast
milk because of her medications, which caused Keira to become exhausted. She agreed
Keira lost 5.5 percent of her weight after she was released from the hospital. McGee did
not know how Keira fractured her skull. She said she took a second dose of her pain

                                            11
medications “[b]ecause maybe they weren’t working.” She stated she got up to check on
Keira because she thought she might be hungry. On redirect examination, McGee
testified she told Stovall that Keira cried more than her sons cried.
              Stovall testified that after Keira was born he saw McGee take medications.
He said the medications caused her to fall asleep and lose her balance. On
cross-examination, Stovall admitted he did not observe McGee suffer from these
symptoms the night Keira died. But Stovall added he did not see McGee from about 1:15
a.m., to 3:00 a.m., when she woke him up.
              Gloria Richard, McGee’s aunt, testified McGee was happy during her
pregnancy and after Keira was born, she was a loving, caring, and attentive mother.
Richard stated that during December, McGee seemed lethargic and confused. She added
that McGee would babble. She said that on one occasion, McGee fell asleep during their
conversation and on another occasion, she fell asleep while sitting on her stairs. Richard
testified McGee told her that while she was carrying Keira, she turned the corner and
bumped Keira’s head against the wall. Richard said she looked at Keira’s head but did
not see any visible injury.
              Nina Higgins, McGee’s long-time friend, testified McGee was ecstatic
about Keira being born and she was patient, nurturing, and attentive. Higgins stated that
around the time of Keira’s birth, McGee complained of leg pain. She also said McGee
was forgetful and she witnessed her dozing off.
              Ola Bawardi, a toxicologist, testified testing revealed McGee’s blood had a
therapeutic level of Xanax but not Dilaudid and Keira’s blood had Methadone; McGee’s
blood was not tested for Methadone. Ernest testified that about March 2007, McGee
would “nod out” or “blank out” and in December 2007, her gait was unsteady.
              Dr. Marvin Pietruszka, a pathologist, testified concerning his education,
training, and experience, including with intentional and accidental head trauma.



                                             12
Pietruszka explained children who suffer abusive head trauma will typically have scalp or
facial injuries, internal injuries, retinal hemorrhages, and subdural hematomas. He added
that 97 percent of the time epidural bleeds are found in accidental cases. He opined
complex fractures are more commonly seen in intentional head trauma cases and
linear/simple fractures are more commonly seen in accidental head trauma cases.
Pietruszka stated he reviewed medical, autopsy, and toxicology reports. Pietruszka
opined the two important autopsy findings were three subgaleal hemorrhages and the left
parietal temporal fracture with epidural hemorrhage. With respect to the first finding,
Pietruszka said not much force is required for an infant to suffer a subgaleal hemorrhage
because the skull and scalp is thin—any simple hit with a hard surface, such as a crib,
piece of furniture, or wall, will suffice. As to the second finding, he explained the
fracture was small, not complex, and not depressed, which indicated it was caused by a
“lesser degree of trauma.” He added that the epidural bleed associated with the fracture
was characteristic of accidental head trauma. He said the presence of iron in two of the
subgaleal hemorrhages suggests there may have been bleeding days or weeks before
Keira died. He also stated the fact the “‘subdural surfaces [were] free of
neomembranes[]’” was important because in 86 percent of abusive head trauma cases
there are neomembranres. Pietruszka testified the epidural hemorrhage was thin and
small, which again indicated minimal trauma.
              Defense counsel questioned Pietruszka about the toxicology report.
Pietruszka explained there was Methadone in Keira’s blood, which suggested McGee
took Methadone during the time she breastfed. He said there was also Benzodiazepine
and Alprazolam in McGee’s blood. He added testing revealed she had taken Demerol,
Dilaudid, and Methadone. When counsel attempted to question Pietruszka about the side
effects of the medications, the following colloquy occurred:
              “[Defense counsel]: Doctor, are you a board-certified toxicologist?
              “[Pietruszka]: Yes.

                                             13
              “[Defense counsel]: What is Methadone?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: Sir, you indicated that you found Methadone in
[Keira’s] system.
              “[Pietruszka]: Yes.
              “[Defense counsel]: Does that have any relevance in this case to you?
              “[Pietruszka]: Yes. As I said --
              “[Prosecutor]: Objection. No question pending.
              “[Trial court]: Well, sustained.
              “[Defense counsel]: Sir, do you know the side effects of Methadone?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained. [¶] Doctor, did the Methadone in Keira’s system
contribute to the cause of death, her cause of death?
              “[Pietruszka]: I do not believe it did.
              “[Trial court]: Thank you.
              “[Defense counsel]: How about, sir, Alprazolam that was found in . . .
McGee’s toxicology reports, in your opinion did that contribute to the cause of death?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: Sir, do you know the side effects of Alprazolam?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.
              “[Defense counsel]: How about Dilaudid, sir, do you know the side effects
of that?
              “[Prosecutor]: Objection. Relevance.
              “[Trial court]: Sustained.”

                                             14
               On cross-examination, the prosecutor questioned Pietruszka about the
toxicology report. The following colloquy occurred:
               “[Prosecutor]: Now, toxicology has nothing to do with the cause of death
to Keira . . . . Correct?
               “[Pietruszka]: Well, not necessarily. It has a lot to do in this case from the
standpoint of [McGee] and how she cared for her baby.
               “[Prosecutor]: I’m asking you specifically: When looking at the autopsy
protocol and report, the toxicology results within Keira[’s] . . . system had nothing to do
with her cause of death. Correct?
               “[Pietruszka]: You can’t evaluate a case and result in isolation. You have
to look at toxicology as it fits into the picture. I honestly believe --
               “[Prosecutor]: Sir, just a few minutes ago when asked, based on the
autopsy protocol, what was the cause of death, you answered head trauma. Correct?
               “[Pietruszka]: Yes.
               “[Prosecutor]: And when asked if Methadone specifically in Keira’s
system had any contribution to her cause of death, your answer was no, it did not.
Correct?
               “[Pietruszka]: It was Methadone in . . . McGee’s system that caused --
               “[Trial court]: No, thank you. You’re not answering her question.”
               At a brief recess out of the jury’s presence, defense counsel indicated he
was confused because during pretrial motions, the trial court ruled that if there was
evidence McGee took medications, Pietruszka could then testify as to the medications’
side effects. The court said, “Then your client took the stand, which I didn’t know that
was going to occur.” Counsel began to say there was evidence, when the court
interrupted him and said the following: “What you’re not understanding is your client
never said that she was loopy, that she was unsteady, that she stumbled, that she --
anything. She was very specific that for that entire day that she took medication and her

                                               15
legs hurt.” When counsel said there was evidence her legs hurt and she was tired, the
court said the following: “I just said her legs hurt. Absolutely. So I’m sorry. I’m sorry.
I’m doing my job. I’m not going to allow this complete fabrication or potential
fabrication to come into evidence.”
              Defense counsel inquired about the trial court’s pretrial ruling concerning
the scope of the doctor’s testimony regarding the cause of death. After counsel stated his
client was prejudiced, the court stated he would admonish the jury to not consider the
court’s comments. Counsel replied “the bell has been rung.” When the court said neither
doctor could testify as to how Keira died, counsel reminded the court Gleckman had
already testified Keira’s death was “without a doubt intentional blunt-force trauma” and
not a “mistake.” The court answered, “You have not asked him -- and I was going to ask
him at the end -- I’m sorry. No one can say it’s an accident or not. They can say it’s
trauma, what the trauma resulted in, and what was the cause of death. Thank you.” The
trial court denied counsel’s request for a mistrial.
              When cross-examination resumed, the prosecutor questioned Pietruszka
about Keira’s hemorrhages and their relatively small size. The following colloquy
occurred:
              “[Prosecutor]: We’ll go through them. Do you see this one, No. 3?
              “[Pietruszka]: Yes.
              “[Prosecutor]: To you, is that just a small, insignificant subgaleal
hemorrhage?
               “[Pietruszka]: There’s no question in my mind this is a serious case. But
we have to understand that these are surface, scalp hemorrhages. These are not fatal
hemorrhages. [¶] And we have to also understand that this is a child who comes from a
mother with sickle cell disease.
              “[Prosecutor]: Objection.
              “[Trial court]: Yes. Sustained.”

                                              16
              On redirect examination, Pietruszka testified Keira died from blunt force
trauma. The trial court asked how long between the trauma and the time of death.
Pietruszka answered within 30 to 45 minutes of the trauma. He said there have been
cases where an infant has died after falling from just 36 inches in height.
              At the conclusion of Pietruszka’s testimony, the trial court stated the
following: “Ladies and gentleman of the jury, I have not intended by anything I have
said or anything I have done or any questions that I may have asked or any ruling that I
have made to intimate or suggest what you should find the facts to be or that I believe or
disbelieve any witness. If anything I have done or said has seemed to so indicate, you
will disregard it and form your own conclusion.”
              Tania Rembert, McGee’s long-time friend, testified McGee appeared to be
under the influence of prescription drugs and she would slur her words, pass out, and
stumble in 2007. Rembert stated McGee continued to slur her words after Keira was
born. She added that two days before Keira died, Rembert laid Keira in a car seat and she
hit her head on the handle.
Prosecution’s Rebuttal Witness
              Dechante Manier, Stovall’s sister, testified that on one occasion after Keira
was born Manier was at their apartment and McGee had an “attitude.” On
cross-examination, Manier also stated that when McGee was pregnant she appeared to be
under the influence and slurred her speech.
Jury Instructions, Closing Argument, Jury Question & Jury Deliberations
              At a hearing, defense counsel did not request instructions on voluntary or
involuntary intoxication. As relevant here, the trial court instructed the jury with the
following instructions concerning count 1: (1) CALCRIM No. 500, Homicide: General
Principles; (2) CALCRIM No. 510, Excusable Homicide: Accident; (3) CALCRIM No.
520, First or Second Degree Murder with Malice Aforethought; (4) CALCRIM No. 521,
First Degree Murder; and (5) CALCRIM No. 580, Involuntary Manslaughter: Lesser

                                              17
Included Offense. Additionally, the court instructed the jury with CALCRIM No. 332,
Expert Witness Testimony, and CALCRIM No. 375, Evidence of Uncharged Offense to
Prove Intent, Knowledge, Lack of Mistake or Accident, and Credibility.
              As relevant here, the prosecutor argued McGee had one child who was in a
permanent vegetative state and one that is dead. The prosecutor added no child should be
afraid of their parent, unless “your mother is . . . McGee.” The prosecutor said,
“Lightning doesn’t strike twice either[,]” and “You don’t want to be her kid.” The
prosecutor argued McGee’s story about waking up Keira to feed her and change her
diaper was “utterly ridiculous.” She added no mother who was exhausted and self-
medicated would do such a thing. The prosecutor said McGee fabricated the injuries to
Keira and “hire[d] some joke . . . Pietruszka.” She argued Keira’s death was not an
accident and McGee was guilty of first degree murder.
              Defense counsel argued the prosecutor failed to meet her burden of proof.
Counsel relied on Stovall’s testimony Keira seemed fine just hours before her death and
neither he nor Cook heard anything in their small apartment. Counsel stated McGee
suffered from a disease that caused her great pain and doctors prescribed her medications
that have a “profound impact” on her. Counsel stated the medications caused McGee to
fall asleep, lose her balance, and forget things. He said McGee had Xanax in her system
that night, and Keira had Methadone in her system. Counsel admitted Keira died from
blunt force trauma, but relying on Pietruszka’s and Sheridan’s testimony, he argued a fall
could potentially kill a child and Keira suffered a couple injuries a week or so before she
died. He concluded Keira died because of a mistake, not murder.
              During rebuttal, the prosecutor contended McGee isolated herself in the
bedroom and suggested Stovall did not have much access to Keira. She added, “She’s
really -- isolates herself because she probably is tired from all the drugs she takes. She’s
a lazy drug addict. I don’t know how much nicer to put that.” After stating how
dangerous it was for McGee to breastfeed while taking medications, the prosecutor said

                                             18
the only reason McGee’s pregnancy was high risk was because of the drugs she was
taking. The prosecutor asserted defense counsel’s accident theory was contrary to the
evidence. A little later, the prosecutor twice called McGee “a drug addict” and stated
“she loves the drugs more than she loved the health of Keira.” The prosecutor ended,
“We can’t walk in her shoes. Probably good for our kids.”
              During deliberations, the jury submitted a question to the trial court.
Recognizing it was difficult to read, the court announced the question as follows: “Do
drug ingested2 altered the defendant’s state of mind.” On the record, but out of the jury’s
presence, the court explained it had an off-the-record discussion with counsel. The court
opined it did not have a sua sponte duty to instruct on voluntary intoxication but because
of the substantial testimony about McGee’s medication usage the court would instruct the
jury on voluntary intoxication as to counts 1 and 2. The court added it would afford
counsel additional time to argue the issue. The court noted the prosecutor agreed but
defense counsel objected. Counsel argued he objected because the trial court prohibited
counsel from questioning Pietruszka about the medications’ side effects.
              The trial court stated, “I don’t disagree with what you have said about . . .
Pietruszka.” The court said, however, the defense was accident, and that is why it did not
instruct on intoxication but because the jury asked the question, the court was obligated
to instruct on it. Defense counsel argued the jury was not hung and there was no legal
ground for reopening argument. Counsel added, “And I’m objecting to further
instructions because they’re not requesting further instructions.” Counsel characterized
the jury’s question as a “factual issue.” The prosecutor stated it was her opinion the jury
should have previously been instructed on intoxication but it was not her duty to request
the instructions. The trial court instructed the jury with CALCRIM No. 625, “Voluntary



2            We are not convinced the jury question states “ingested.” It could be read
to be “induced,” although spelled, “indused” [sic].

                                             19
Intoxication,” as to count 1. The court instructed the jury it could not consider evidence
of voluntary intoxication as to count 2.
                When defense counsel resumed argument, he argued there was evidence
that when McGee took her medications, she “blacked out.” The prosecutor contended
there was no evidence McGee “blacked out” that night. She added McGee had
therapeutic doses of Xanax and Methadone in her system, but she referred to McGee as a
“drug addict.” The prosecutor concluded McGee’s conduct in calling 911 and at the
hospital demonstrate Keira’s death was not an accident or a mistake.
Verdicts & Sentencing
                The jury acquitted McGee of first degree murder but convicted her of the
lesser included offense of second degree murder and count 2. At a bifurcated bench trial,
the court found true the prior felony child abuse conviction. The court sentenced McGee
to 25 years to life doubled to 50 years to life on count 2. The court imposed and stayed a
30 years to life term on count 1 pursuant to section 654.
                                       DISCUSSION
I. Judicial Misconduct
                McGee contends the trial judge committed prejudicial misconduct. The
Attorney General responds McGee forfeited review of the issue because defense counsel
did not object on this ground, and alternatively the judge did not commit misconduct and
assuming he did, it was not prejudicial. McGee asserts counsel’s motion for a mistrial
preserved the issue for review. As we explain below, we conclude the issue is preserved
for review and the judge committed misconduct requiring reversal.
A. Forfeiture
                “As a general rule, judicial misconduct claims are not preserved for
appellate review if no objections were made on those grounds at trial. [Citations.]
However, a defendant’s failure to object does not preclude review ‘when an objection and
an admonition could not cure the prejudice caused by’ such misconduct, or when

                                              20
objecting would be futile. [Citations.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237
(Sturm).) Although defense counsel did not object to all the alleged instances of judicial
misconduct, counsel did move for a mistrial based on the trial judge’s comments no
expert in the world could testify Keira’s death was accidental.
              Additionally as in Sturm, “Given the evident hostility between the trial
judge and defense counsel . . . , it would also be unfair to require defense counsel to
choose between repeatedly provoking the trial judge into making further negative
statements about defense counsel and therefore poisoning the jury against his client or,
alternatively, giving up his client’s ability to argue misconduct on appeal. On this record,
we are convinced that any attempt by defense counsel to object to the trial court’s
numerous sua sponte objections and derogatory comments “would have been futile and
counterproductive to his client.’ [Citation.]” (Sturm, supra, 37 Cal.4th at p. 1237.)
              We have reviewed the entire record. Nearly all the judge’s derogatory
comments were directed at defense counsel and Pietruszka. We have found no instance
where the judge treated the prosecutor or Gleckman in such a manner. The judge’s
hostility towards the defense is perhaps best exemplified by his comment he was not
going to allow this “complete fabrication or potential fabrication to come into evidence.”
As in Sturm, we conclude any objection would have been futile. We now address the
merits of McGee’s claims.
B. Merits
              “The standards of conduct to which judges are held are reflected in part in
the canons of the Code of Judicial Conduct. Although these canons do not have the force
of law or regulation, ‘they reflect a judicial consensus regarding appropriate behavior’ for
California judges. [Citations.] The failure of a judge to comply with the canons
‘suggests performance below the minimum level necessary to maintain public confidence
in the administration of justice.’ [Citation.]” (Adams v. Commission on Judicial
Performance (1994) 8 Cal.4th 630, 661-662.) “A judge shall be patient, dignified, and

                                             21
courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in
an official capacity, and shall require similar conduct of lawyers and of all court staff and
court personnel under the judge’s direction and control.” (Cal. Code Jud. Ethics, canon
3B(4).) A judge must be open-minded, temperate, impartial, courteous, and patient. (7
Witkin, Cal. Procedure (5th ed. 2008) Trial, § 242, p. 294; 5 Witkin & Epstein, Cal.
Criminal Law (4th ed. 2012) Criminal Trial § 664, p. 1024; Rothman, Cal. Judicial
Conduct Handbook (3d ed. 2007) § 2.03, pp. 40-41.)
              The California Supreme Court discussed these well-established principles
in Sturm, supra, 37 Cal.4th 1218. Relying in part on the court’s 90 year-old-decision in
People v. Mahoney (1927) 201 Cal. 618, the Sturm court stated: “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.’ [Citations.] Jurors rely with great confidence on the fairness of judges,
and upon the correctness of their views expressed during trials. [Citation.] When ‘the
trial court persists in making discourteous and disparaging remarks to a defendant’s
counsel and witnesses and utters frequent comment from which the jury may plainly
perceive that the testimony of the witnesses is not believed by the judge . . . it has
transcended so far beyond the pale of judicial fairness as to render a new trial necessary.’
[Citation.]” (Sturm, supra, 37 Cal.4th at p. 1233.)
              “‘The object of a trial is to ascertain the facts and apply thereto the
appropriate rules of law, in order that justice within the law shall be truly administered.’
[Citation.] To this end, ‘the court has a duty to see that justice is done and to bring out
facts relevant to the jury’s determination.’ [Citation.] The trial court has a statutory duty
to control trial proceedings, including the introduction and exclusion of evidence.
[Citation.] As provided by section 1044, it is ‘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

                                              22
ascertainment of the truth regarding the matters involved.’ However, ‘a judge should be
careful not to throw the weight of his judicial position into a case, either for or against the
defendant.’ [Citation.] [¶] Trial judges ‘should be exceedingly discreet in what they say
and do in the presence of a jury lest they seem to lean toward or lend their influence to
one side or the other.’ [Citation.] A trial court commits misconduct if it ‘“persists in
making discourteous and disparaging remarks to a defendant’s counsel and witnesses and
utters frequent comment from which the jury may plainly perceive that the testimony of
the witnesses is not believed by the judge.”’ [Citations.]” (Sturm, supra, 37 Cal.4th at
pp. 1237-1238.)
              “‘“[O]ur role . . . 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.] We make that
determination on a case-by-case basis, examining the context of the court’s comments
and the circumstances under which they occurred. [Citation.] Thus, the propriety and
prejudicial effect of a particular comment are judged by both its content and the
circumstances surrounding it. [Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 914.)
              Here, the trial judge committed misconduct when he belittled the defense’s
expert witness, disparaged defense counsel, vouched for the prosecution’s expert witness,
improperly commented on the evidence, and tried to interject humor at a crucial moment
in the defense case. We will discuss each in turn. We will discuss the prejudicial effect
of the judicial misconduct in section III.
1. Belittled the Defense’s Expert Witness
              In Sturm, the judicial misconduct occurred during retrial of the penalty
phase of a capital case. (Sturm, supra, 37 Cal.4th at p. 1244.) During voir dire, the trial
judge twice stated premeditation was a “gimme.” (Id. at p. 1231.) Additionally,
defendant presented evidence his long-term cocaine addiction and abusive childhood

                                              23
were mitigating factors in determining whether to impose the death penalty. (Id. at pp.
1228-1230.) The defense expert on pharmacology testified he received millions of
dollars in federal grants to study cocaine abuse when the judge interrupted and stated,
“‘[i]n other words, you contributed to the federal deficit; is that correct?’” (Id. at p.
1233.) The California Supreme Court found the judge’s comment disconcerting because
it “conveyed to the jury that the trial judge did not take seriously the defense theory in
mitigation.” (Id. at p. 1238.)
              The defense expert psychologist testified concerning behaviors in
defendant’s family when the judge, without a prosecution objection, interrupted and told
the expert she used too many descriptive words and embellished her testimony. (Sturm,
supra, 37 Cal.4th at pp. 1233-1234.) When the expert psychologist began to testify
defendant’s school records indicated his depression, the judge stated, “‘What’s the
difference if she did or she didn’t?’” (Id. at p. 1234.) Defense counsel asked the
psychologist the effect of positive reinforcement on defendant, the prosecutor objected,
and the judge ruled it would not allow evidence concerning the failure of positive
reinforcement to cure defendant because “‘[i]t didn’t, so why do we care? Isn’t that the
bottom line? I assume because he didn’t get it [positive reinforcement] from the father
figure or something. Really, where do we go?’” (Ibid.) Finally, on two occasions the
judge answered for the psychologist. (Ibid.)
              The Sturm court concluded the judge’s comments were misconduct. The
court stated the judge’s statement premeditation was a “gimme” was error because it was
related to the key issue, undermined the defense’s strategy, and bolstered the
prosecution’s case. (Sturm, supra, 37 Cal.4th at p. 1232.) The court explained the
judge’s comment the psychologist embellished her testimony conveyed to the jury that
the judge questioned the defense expert’s reliability and suggested her testimony was not
based wholly on the facts. (Id. at pp. 1238-1239.) The court opined, “[I]t was improper
for the judge to rebuke an expert witness in front of the jury by suggesting that she was

                                              24
manufacturing or improperly including the descriptive details of her testimony.” (Id. at p.
1239.) The court added the judge’s comments concerning what “difference” it made and
why do we “care” conveyed to the jury the judge’s opinion the psychologist’s testimony
was “of little consequence,” “useless,” and “not worth considering.” (Ibid.) The court
said the judge overstepped when he answered for the psychologist and conveyed to the
jury “the message that the questions were so trivial and/or obvious that he himself was
able to answer them without possessing the particular expertise of the witness.” (Ibid.)
The court concluded, “The trial judge’s behavior towards the two key expert witnesses
for the defense conveyed to the jury disdain for the witnesses and their testimony and
therefore constituted misconduct. [Citation.] . . . Such behavior, especially considered in
the aggregate, conveyed to the jury the unfortunate message that the trial judge did not
take seriously the testimony of the defense experts.” (Id. at p. 1240.)
              Here, defense counsel asked Pietruszka if he formed a conclusion after
examining all the reports in this case. The following colloquy occurred:
              “[Pietruszka]: Yes.
              “[Defense counsel]: What was your conclusion that you reached, Doctor?
              “[Trial court]: No, thank you. You ask a specific question. [¶] Doctor, in
your opinion, after examining what you have examined, and what you have told us, could
you please tell us the cause of death.
              “[Pietruszka]: The cause of death is an accidental fall.
              “[Trial court]: No, thank you. No, thank you. There’s nobody on earth
can say that. What was the cause of death?
              “[Pietruszka]: Head trauma.
              “[Trial court]: Thank you, sir.
              “[Defense counsel]: And explaining this head trauma, sir, in your opinion,
can you distinguish between whether it was accidental or abusive head trauma?
              “[Pietruszka]: Yes.

                                             25
               “[Defense counsel]: What factors did you look at, sir, in your analysis?
               “[Pietruszka]: I took into consideration the setting in which this child
suffered this fracture. I took into consideration the fact that the mother was taking
medications that could make her unstable, fidgety.
               “[Prosecutor]: Objection. Relevance.
               “[Trial court]: No. It’s lack of foundation. Sustained.
               “[Defense counsel]: Sir, did you have any knowledge that mom was taking
medications?
               “[Prosecution]: Objection. Relevance.
               “[Trial court]: Sustained.
               “[Defense counsel]: How about the physical autopsy itself, sir, that is, the
injuries, did you take that into account?
               “[Pietruszka]: Yes.
               “[Defense counsel]: And which factors, sir, that you had mentioned
previously that you took into account when you were determining whether or not this is
accidental or abusive head trauma?
               “[Pietruszka]: I took into account that there were -- I determined that it was
accidental based on the following information.
               “[Trial court]: No, thank you. Lack of foundation. Doctor, there’s nobody
on this planet who can say whether or not the trauma was accidental or abuse. You can’t.
There’s trauma to the head. How was that conducted, you would have to be given a
hypothetical of what actually happened just before the trauma, would you not?
               “[Pietruszka]: Well, I’m going off of the statistics.
               “[Trial court]: No, you’re not.
               “[Pietruszka]: And the documents.
               “[Trial court]: There’s nobody -- No, they can’t.
               “[Pietruszka]: I will share with you this paper if you --

                                              26
                “[Trial court]: No, thank you. No. You may proffer a hypothetical, sir,
that conforms with the facts.
                “[Defense counsel]: Doctor, if a mother was taking methadone --
                “[Trial court]: No, thank you. [¶] If a mother holding an infant of two
weeks in her arms was walking at a normal speed in a room, turned the corner and hit the
wall with the child’s head, the top part of the child’s head as she rounded the corner, and
the baby cried or fussed for a very short period of time without any other
symptomatology and did not show any signs, eyes or on the surface of the skull, and then
two weeks later died of these injuries described in the autopsy, could that have been the
cause of death?
                “[Pietruszka]: No.
                “[Trial court]: Any other hypothetical conforming to the facts, you may
ask it, sir.”
                Later, during the prosecutor’s cross-examination of Pietruszka, the
following colloquy occurred:
                “[Prosecutor]: Sir, just a few minutes ago when asked, based on the
autopsy protocol, what was the cause of death, you answered head trauma. Correct?
                “[Pietruszka]: Yes.
                “[Prosecutor]: And when asked if Methadone . . . in Keira’s system had
any contribution to her cause of death, your answer was no, it did not. Correct?
                “[Pietruszka]: It was Methadone in . . . McGee’s system that caused --
                “[Trial court]: No, thank you. You’re not answering her question.
                “[Pietruszka]: Unfortunately, she’s not allowing me to explain how this
happened.
                “[Trial court]: Doctor, you know, I’m in charge.
                “[Pietruszka]: That’s true.



                                              27
              “[Trial court]: You know that. So you’re going to have to answer the
question directed to you.
              “[Pietruszka]: I will.”
              A little later, the prosecutor questioned Pietruszka concerning linear and
complex fractures, and he repeated accidental fractures are linear and complex fractures
are intentional. The trial court interrupted and the following colloquy occurred:
              “[Trial court]: Would you say that that’s a [100] percent of the time?
              “[Pietruszka]: No, nothing is a [100] percent of the time.
              “[Trial court]: Right. So if a child were to drop, say, from a six-foot height
and strike a dowel or a chair knob, could that not cause, depending upon the height, a
complex fracture?
              “[Pietruszka]: Of course. Of course it could.
              “[Trial court]: Yes. In that instance, if the person were to accidentally drop
the child, that would cause that. Correct? It would not cause a linear.
              “[Pietruszka]: It depends on the height.
              “[Trial court]: Sure it does. I agree. But my point is -- No.”
              The trial judge belittled and discredited Pietruszka, the defense’s key
witness, when in the jury’s presence he repeatedly told Pietruszka there was nobody on
this “earth” or “planet” who could say Keira’s death was accidental. Although the judge
may have intended to say no expert could testify as to the manner of death, given the
judge’s general hostility toward the defense, it is far more probable the jury interpreted
the judge’s statement to mean no juror could reasonably conclude her death was
accidental. This is especially true given the fact the prosecution’s expert had been
allowed to testify her death was intentional. The judge’s comment, like the judge’s
comment in Sturm, undermined the defense offered on the pivotal issue in the case and
thereby bolstered the prosecution’s version of events. (Sturm, supra, 37 Cal.4th at p.
1238.) The judge’s error was compounded by the fact the judge allowed the prosecutor’s

                                             28
expert witness to testify repeatedly and unequivocally Keira’s death was the result of an
intentional act.
              Additionally, when Pietruszka tried to explain he based his opinion on
statistics, the trial judge said, “No, you’re not[]” and “There’s nobody -- No, they can’t.”
Similar to Sturm, the judge’s comments conveyed the message to the jury the judge
thought Pietruszka’s testimony was “of little consequence,” “useless,” and “not worth
considering.” (Sturm, supra, 37 Cal.4th at p. 1239.) The judge essentially confronted
Pietruszka in the jury’s presence and told him he was wrong, conveying to the jury the
message his testimony was of little, if any, value. If the judge believed Pietruszka’s
testimony to be legally irrelevant, the judge could have excluded it on that ground
without belittling the defense’s key witness in the jury’s presence.
              When the prosecutor cross-examined Pietruszka about whether all
accidental fractures are linear fractures, the trial judge interrupted and questioned
Pietruszka. When Pietruszka stated a fall could result in a complex fracture depending on
the height from which the child fell, the judge said, “Sure it does. I agree. But my point
is -- No.” Again as in Sturm, the judge’s conduct of interrupting Pietruszka and
answering the prosecutor’s question conveyed to the jury the judge was able to answer as
an expert without possessing any special expertise, thereby overstepping the proper role
of the court. (Sturm, supra, 37 Cal.4th at p. 1239.)
              Finally, when Pietruszka stated the prosecutor was not allowing him to
explain how Methadone in McGee’s system contributed to Keira’s cause of death, the
trial judge told him, “Doctor, you know, I’m in charge.” The judge could have simply
advised Pietruszka to answer the prosecutor’s questions and obey the judge’s rulings or
could have excused the jury and made the point to the witness in their absence. Instead,
the judge suggested to the jury Pietruszka was uncooperative and the judge’s comments
conveyed to the jury his frustration with Pietruszka. Similar to Sturm, “[I]t was improper
for the judge to rebuke an expert witness in front of the jury by suggesting that [the

                                             29
expert] was manufacturing or improperly including the descriptive details of [the
expert’s] testimony.” (Sturm, supra, 37 Cal.4th at p. 1239.)
2. Disparaged Defense Counsel
              “‘It is completely improper for a judge to advise the jury of negative
personal views concerning the competence, honesty, or ethics of the attorneys in a trial
. . . . When the court embarks on a personal attack on an attorney, it is not the lawyer
who pays the price, but the client.’ [Citation.] This principle holds true in instances
involving a trial judge’s negative reaction to a particular question asked by defense
counsel, regardless of whether the judge’s ruling on the prosecutor’s objection was
correct; even if an evidentiary ruling is correct, ‘that would not justify reprimanding
defense counsel before the jury.’ [Citation.]” (Sturm, supra, 37 Cal.4th at p. 1240.)
              In Sturm, defense counsel questioned defendant’s stepmother concerning
how her sons would be affected if defendant were sentenced to death. (Sturm, supra, 37
Cal.4th at pp. 1234-1235.) The judge chastised counsel, telling him he had been around
too long not to know that evidence was inadmissible. (Id. at p. 1235.) When counsel
tried to question the expert psychologist about whether defendant’s family praised
defendant, the judge interrupted counsel and said: “‘No, no, no. We are back to the same
question number one again. I rule, I rule and then you go back and ask the question just a
little bit different, trying to sneak it by. Is that the particular word I should use? Again,
[counsel], please . . . . So again, admonish the jury that [counsel’s] questions are not
evidence, as much as he would like them to be evidence.’” (Id. at p. 1235.) Finally, the
judge interposed his own objections to counsel’s questions on many more occasions than
he did the prosecutor’s questions. (Id. at p. 1235.)
              The Sturm court stated the judge’s repeated and improper mistreatment of
defense counsel conveyed to the jury that the judge “was allied with the prosecution” and
implied counsel was deliberately trying to place inadmissible evidence in front of the
jury. (Sturm, supra, 37 Cal.4th at p. 1240.) The court added the judge’s negative

                                              30
remarks about counsel were exacerbated by the judge’s unequal treatment of counsel and
the prosecutor. (Id. at p. 1241.) Finally, the court added the fact the judge intervened
when the prosecutor did not, “implied that such interventions were made in the
prosecutor’s stead,” which “strengthen[ed] the impression that the trial judge was allied
with the prosecution.” (Id. at pp. 1241-1242.)
              Here, on direct examination, defense counsel questioned Pietruszka about
factors distinguishing accidental head trauma from intentional head trauma. The
following colloquy occurred:
              “[Defense counsel]: Sir, you mentioned you have to look at the trauma
itself. What are you looking for regarding the trauma itself?
              “[Prosecutor]: Objection.
              “[Trial court]: Sustained.
              “[Defense counsel]: Head trauma, sir. You mentioned head trauma factors
that you look at. Are you speaking of injuries regarding the head?
              “[Pietruszka]: Yes.
              “[Defense counsel]: Please tell us about the factors that you look at, sir,
regarding injuries to the head.
              “[Prosecutor]: Objection. Vague.
              “[Trial court]: Yes. Sustained. I don’t care, and the trier of fact doesn’t
care. What we want to do is we want to talk about small infants.
              “[Defense counsel]: Thank you, your [h]onor.”
              The trial judge disparaged and mistreated defense counsel. Similar to
Sturm, the trial judge implied counsel was deliberately trying to place inadmissible
evidence in front of the jury. Curiously, the judge had previously stated Pietruszka’s
opinion was worthless and without reasoning but then would not allow him to explain his
reasoning. Instead of belittling counsel in front of the jury by telling him no one “cares,”
the judge could have either waited for the prosecutor to object on relevance grounds or,

                                             31
since he felt compelled to interrupt, could have lodged his own relevance objection and
directed counsel to tailor his question according to the facts or called for a sidebar.
Instead, the judge improperly ridiculed counsel in the jury’s presence and signaled to the
jury his belief the defense was without evidentiary support.
              Although trial judges may pose hypothetical questions, the manner in
which the trial judge here posed hypothetical questions was troubling. The trial judge
was very concerned with defense counsel tailoring his hypothetical questions to the facts
of the case, yet the judge’s own hypothetical questions departed from the evidence.
There was nothing in evidence suggesting a child had been dropped six feet, hit a dowel
or chair, and suffered a complex fracture. The hypothetical question relied on facts
outside the evidence, but the hypothetical could conceivably be interpreted as the judge’s
attempt to attack the credibility of the defense expert. Such an attack would not be
improper if the record suggested the judge approached the prosecution’s expert in a
similar manner. But the record does not reflect the judge intervened or interfered during
the testimony of the prosecution expert. This lopsided intervention created an
atmosphere of unfairness. It is misconduct when a judge intervenes in a case in a partial
manner. (Sturm, supra, 37 Cal.4th at p. 1232 [trial court’s comments on evidence must
be impartial and accurate].) That the hypothetical question may have been otherwise
permissible does not remedy the misconduct.
              The trial judge’s second hypothetical question, involving hitting his finger
with a hammer, was similarly outside the evidence and improper because, as we explain
below, this appeared to be an attempt to interject humor at a critical point in the defense
case. The timing of this hypothetical appeared to be an effort to undermine the defense in
an unfair way.
              Additionally, the trial judge singled out defense counsel for reprimand on
numerous occasions. For example, one we discuss below occurred during cross-
examination when counsel tried to question Gleckman about a hemorrhage and the judge

                                              32
told counsel not to challenge Gleckman on his answer because his answer was correct.
The judge not only reprimanded counsel in the jury’s presence, but he also intervened in
a manner that created the impression he was aligned with the prosecution. (Sturm, supra,
37 Cal.4th at p. 1241.) Another example, one we also discuss below, is when counsel
tried to cross-examine Gleckman about accidental injuries without brain trauma, and the
judge first shared and then belabored the story about hitting his finger with a hammer.
When counsel tried to narrow the scope of his question, the judge discussed his finger’s
verbal response to the injury. Again, the judge belittled counsel in front of the jury and
questioned his competency.
              Similar to Sturm, the trial judge’s overt skepticism of the defense and
negative remarks directed at defense counsel stood in stark contrast to his measured
treatment of the prosecutor. The judge disparaged defense counsel by questioning his
competency and trivializing his tactics, thereby conveying the impression he favored the
prosecution. We found no instance, and the Attorney General neither in its brief nor at
oral argument cites to any instance where the judge disparaged the prosecutor in a similar
fashion.
3. Vouched for the Prosecution’s Expert Witness
              “‘Upon the trial judge rests the duty of seeing that the trial is conducted
with solicitude for the essential rights of the accused.’ [Citations.]” (People v. McKenzie
(1983) 34 Cal.3d 616, 626, disapproved on other grounds in People v. Crayton (2002)
28 Cal.4th 346, 364-365.) A trial judge may not vouch for the credibility of a witness.
[Citations.]” (People v. Banks (2014) 59 Cal.4th 1113, 1206 (Banks).) In Banks, supra,
59 Cal.4th at page 1206, the victim testified defendant assaulted her, raped her in her
daughter’s presence, and threatened to kill her family if she testified against him. When
her testimony ended, the trial judge stated, “‘[m]a’am, I’m sorry this happened to you . . .
.’” The Banks court opined the judge’s comment was improper vouching because it



                                             33
suggested her testimony was true. The court concluded however, the court’s immediate
admonishment after its brief comment did not establish judicial bias. (Ibid.)
               Here, defense counsel questioned Gleckman about the hemorrhaging. The
following colloquy occurred:
               “[Defense counsel]: And now you have what you consider to be an acute
hemorrhage. Is that correct?
               “[Gleckman]: In three separate locations.
               “[Defense counsel]: Talking about in one location, sir, when you said it
was acute, that it did not show any type of --
               “[Trial court]: No, no. He answered that correctly. Don’t challenge him
on that one, sir.” (Italics added.)
               A little later, on redirect examination, the prosecutor questioned Gleckman
about Keira’s time of death, cause of death, and bleeding. The following colloquy
occurred:
               “[Prosecutor]: But do falls from short distances cause the kind of trauma
that Keira . . . suffered?
               “[Gleckman]: Absolutely not.
               “[Prosecutor]: There’s no question in your mind, is there?
               “[Gleckman]: None whatsoever.
               “[Prosecutor]: When asked about, can one blow cause all three of the
subgaleal hemorrhages, can it? Can one blow cause all three?
               “[Gleckman]: No.
               “[Prosecutor]: Impossible?
               “[Gleckman]: Impossible.
               “[Prosecutor]: There’s no trauma to Keira’s neck internally or externally.
Correct?
               “[Gleckman]: Correct.

                                             34
                 “[Prosecutor]: Would you expect to find any in light of the head trauma
you found inside?
                 “[Gleckman]: You could. But the vast majority of infants, especially since
she was a very young infant, they usually die from head trauma, intentional head trauma
in this case.”
                 “[Prosecutor]: And even in the shaken baby cases where there’s consistent
rotational forces, do you find neck injuries in those cases?
                 “[Defense counsel]: Your honor, objection. Relevance.
                 “[Trial court]: Overruled.
                 “[Gleckman]: Most of the time you don’t. Sometimes you can.
                 “[Prosecutor]: Is it rare to find it?
                 “[Gleckman]: Yes.
                 “[Prosecutor]: Why is that, if you know?
                 “[Gleckman]: I don’t know exactly why. But you don’t necessarily find
bleeding in the neck muscles because usually an infant will probably be held, if they are
shaken to death, held lower down on their body.”
                 As in Banks, the judge vouched for Gleckman and told the jury his
testimony was correct. The only conclusion the jury could draw from the judge’s
comment was that the judge believed Gleckman’s testimony concerning hemorrhages
was true. The judge blatantly vouching for Gleckman was misconduct. More troubling
though is the impression the judge’s comment gave when combined with the judge’s
treatment of Pietruszka. When viewed in their entirety, the judge’s comments signaled to
the jury he believed Gleckman and disbelieved Pietruszka. Although the prosecutor had
not objected, the judge intervened to contradict Pietruszka’s expert opinion Keira’s death
was an accident. In contrast, the judge remained silent when Gleckman testified Keira’s
death was the result of an intentional act. Thus, the judge effectively vouched for the
prosecution’s expert witness.

                                                 35
              Additionally, the trial judge created the impression he was allied with the
prosecution. A few examples illustrate this point. First, during the prosecutor’s cross-
examination of Pietruszka, the trial judge interrupted and questioned him with the
improper hypothetical. After Pietruszka answered the type of fracture would depend on
the height from which the child fell, the judge stated the following: “Sure it does. I
agree. But my point is -- No.” The judge in trying to make a “point” assumed the role of
the prosecutor, which was improper. Second, over defense counsel’s relevance objection,
the trial judge allowed Gleckman to testify about shaken baby cases, which was not at
issue in this case, and to speculate as to why neck injuries were not common in those
cases after admitting he did not know why. Finally, the trial judge on several occasions
either sustained the prosecutor’s objections even though she failed to state a basis or
corrected the prosecutor’s objection and sustained it. “A trial judge who creates the
impression that he is allied with the prosecution has engaged in improper conduct.
[Citation.]” (Sturm, supra, 37 Cal.4th at p. 1242.)
4. Improperly Commented on Evidence
              “Article VI, section 10 of the California Constitution provides, in pertinent
part: ‘The court may make any comment on the evidence and the testimony and
credibility of any witness as in its opinion is necessary for the proper determination of the
cause.’ We have interpreted this provision to require that such comment ‘“be accurate,
temperate, nonargumentative, and scrupulously fair. The trial court may not, in the guise
of privileged comment, withdraw material evidence from the jury’s consideration, distort
the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate
factfinding power.”’ [Citations.] Thus, a trial court has ‘broad latitude in fair
commentary, so long as it does not effectively control the verdict.’ [Citation.] ‘We
determine the propriety of judicial comment on a case-by-case basis.’ [Citation.]”
(People v. Monterroso (2004) 34 Cal.4th 743, 780.) “[T]he permissible contours of
constitutionally authorized judicial comment . . . observed in . . . “[judicial] decisions

                                             36
admonish that judicial comment on the evidence must be accurate, temperate,
nonargumentative, and scrupulously fair.” (People v. Proctor (1992) 4 Cal.4th 499, 542.)
               During defense counsel’s argument on voluntary intoxication, counsel
began to discuss the definition of “willfully,” referencing count 2, and stated there was no
evidence McGee did anything “willingly or on purpose.” After the prosecutor objected,
the trial court reminded counsel voluntary intoxication does not apply to count 2. When
counsel said he was explaining what “willfully” means, the court replied, “And you told
them there’s no evidence that she did anything willfully. That’s not so. There’s -- there
is -- go ahead, sir.”
               The trial judge’s comment on the evidence was intemperate, argumentative,
and unfair when viewed in the context of the entire case. The jury had to determine
whether Keira’s injuries were more consistent with an accident or an intentional act. The
jury could interpret the judge’s comments as expressing his belief the evidence
demonstrated McGee willfully killed Keira and it was not possible she died from an
accidental fall. The judge’s error was compounded by the fact the judge remained silent
when the prosecution’s expert testified Keira died as the result of an intentional act but
prevented the defense’s expert from testifying Keira’s death was an accident. The
judge’s comment was not an attempt to assist the jury as the exclusive trier of fact in
reaching a just verdict. Instead, the judge conveyed to the jury he disbelieved the defense
and impliedly the jury should as well. The judge’s comment on the evidence was
improper.
5. Apparent Attempt at Humor
               In Sturm, when the expert pharmacologist tried to explain why the federal
government funds research on the effects of drugs on people, the trial judge interrupted
and stated the following: “[T]ry and answer the question. Not whether the federal
government spent millions of dollars. They spent too much already. Let’s not get into
that . . . . That would be very depressing and we will need cocaine.’” (Sturm, supra, 37

                                             37
Cal.4th at p. 1233.) The Sturm court stated, “While this apparently was an attempt at
humor—always a risky venture during a trial for a capital offense—this court has
repeatedly stated that a trial court must avoid comments that convey to the jury the
message that the judge does not believe the testimony of the witness. [Citations.]” (Id. at
p. 1238.) The court opined the judge’s statement conveyed to the jury he did not take the
defense’s theory of mitigation seriously. (Ibid.)
              Here, during defense counsel’s cross-examination of Gleckman, the
following colloquy occurred:
              “[Defense counsel]: Oftentimes, sir, throughout your career, have you seen
where there has [sic] been injuries that has [sic] been accidental when also there has been
no trauma to the brain?”
              “[Trial court]: I have.
              “[Defense counsel]: I’m sorry, your honor?
              “[Trial court]: I have. Accidental injuries where there’s no trauma to the
brain. I’ve hit my finger with a hammer. Your question is: Have you seen accidental
injuries that there’s no trauma to the brain. Right?
              “[Defense counsel]: Yes, that was my question, your honor.
              “[Trial court]: If I hit my finger with a hammer, my finger is going --
              “[Defense counsel]: To the head, sir.
              “[Trial court]: -- my finger is going to cry out.
              “[Defense counsel]: To the head, sir.
              “[Gleckman]: Yes, there are accidental injuries to the head. But again, in
my training and experience, it’s predominantly with people who have died.”
              The trial judge’s apparent attempt at humor was misconduct. Similar to
Sturm, the judge essentially questioned defense counsel’s competency in the jury’s
presence by ridiculing him about the form of his question while also apparently trying to
be humorous. There was no point to be made here other than to demonstrate the

                                             38
weakness of defense counsel’s presentation. More troubling though was the judge’s
attempt at humor undermined counsel’s effort to elicit from the prosecution’s expert there
could be accidental head injuries where there was no trauma to the brain. The judge
interrupted the flow of direct examination and inappropriately interjected humor at a
crucial point in the defense’s case. Again, the judge, feeling compelled to intervene,
could have simply advised counsel to tailor his question but instead jokingly ridiculed
counsel. That was improper.
II. Evidentiary Issues
              McGee contends the trial court committed four evidentiary errors. We
agree with three of her contentions.3 We will discuss the prejudicial effect of these
errors, and the related judicial misconduct, below in section III.
A. Non-abuse of Cook
              McGee argues the trial court erred by excluding Cook’s anticipated
testimony McGee did not abuse him when they lived together. We agree.
              “Relevant evidence is evidence ‘having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.’
(Evid. Code, § 210.) ‘While there is no universal test of relevancy, the general rule in
criminal cases might be stated as whether or not the evidence tends logically, naturally,
and by reasonable inference to establish any fact material for the prosecution or to
overcome any material matter sought to be proved by the defense. [Citation.] Evidence
is relevant when no matter how weak it may be, it tends to prove the issue before the
jury.’ [Citation.]” (People v. Freeman (1994) 8 Cal.4th 450, 491 (Freeman).)




3             We need not address McGee’s claim the trial court erred in ruling
Pietruszka could not testify Keira’s death was accidental because as we explain above,
the judge’s statements were misconduct.


                                             39
              Here, the Attorney General does not explain with any reasoned analysis
why the trial court’s exclusion of Cook’s anticipated testimony McGee did not abuse him
when they lived together was proper. Although the Attorney General provides the legal
principles concerning relevant evidence stated above, the Attorney General does not
explain why this evidence was irrelevant but instead argues any error was harmless. As
the Attorney General provides no reasoned argument the trial court acted properly in
excluding this evidence, we conclude the court erred. Evidence McGee did not abuse
Cook while they lived together was relevant to show McGee did not intentionally abuse
her children and to lessen the impact of her prior felony child abuse conviction.
B. Side Effects of Medications
              McGee contends the trial court erred by excluding evidence concerning the
side effects of her prescription medications. Again, we agree.
              Although a trial court has considerable discretion in admitting evidence
(People v. Williams (2008) 43 Cal.4th 584, 633-634), we conclude here the trial court
abused its discretion. Evidence is relevant if it tends logically, naturally, and by
reasonable inference to establish a material fact, including evidence concerning the
defense’s theory of the case. (See People v. Marshall (1996) 13 Cal.4th 799, 836
[criminal defendant constitutionally entitled to offer all relevant evidence of significant
probative value in defendant’s favor].)
              McGee’s defense was Keira died accidentally. The defense’s theory was
McGee suffered from a painful genetic disorder that caused her to take powerful
medications, which affected her stability, alertness, and memory, and Keira’s death was
an accident. Contrary to the trial court’s conclusion, there was evidence McGee was
experiencing the side effects of her medications. McGee testified that on the evening of
Keira’s death she was in pain and did not feel well. She said she took her medications at
about 10:00 p.m. and again about 1:30 a.m. Although McGee did not testify that after
she took her medications she was drowsy, forgetful, or unsteady, she did testify her

                                             40
medications generally had these effects on her. This evidence logically, naturally, and by
reasonable inference tended to establish McGee was experiencing the side effects of her
medications on the night Keira died. (Freeman, supra, 8 Cal.4th at p. 491 [evidence
relevant if it tends to prove issue before jury regardless of weight].) The court’s
exclusion of evidence concerning the medications’ side effects was error because that
evidence was relevant to the defense of accident.
              The Attorney General argues the trial court properly excluded the evidence
because McGee never testified she was affected by the medications, and there was no
other evidence she suffered from the side effects of the medications that night. The
Attorney General cites to Stovall’s testimony McGee did not appear to be experiencing
any effects of her medication that night and the fact she “coherently” called 911 and later
spoke with police at the hospital. But McGee testified to the effects of these medications
and said she had taken them that night. That was enough to put the issue into play.
Arguing the court’s exclusion of evidence of the side effects was proper because there
was no other evidence of side effects begs the question and is erroneous. Thus, evidence
concerning the side effects of McGee’s prescription medications was relevant to her
defense of accident, and the trial court erred in excluding this evidence.
C. Sickle Cell
              McGee asserts the trial court erred by excluding evidence concerning the
possibility her daughter suffered from sickle cell disease, the severity of her own sickle
cell condition, and the prescribed medication she took to treat the disease. The Attorney
General responds McGee waived review of this issue because she did not make an offer
of proof, the evidence was not relevant, and its exclusion was not prejudicial. We
disagree with the Attorney General on all counts.
              Although it is true that defense counsel’s failure to make an offer of proof
in response to the trial court’s sustaining a relevance objection normally waives review of
that issue (People v. Morrison (2004) 34 Cal.4th 698, 724; Evid. Code, § 354), there are,

                                             41
of course, exceptions to that general rule. An offer of proof is unnecessary where the
evidence is sought by questions asked during cross-examination (Evid. Code, § 354,
subd. (c)), and an offer of proof is unnecessary when a trial court’s rulings make an offer
of proof futile (Evid. Code, § 354, subd. (b)). A fair reading of the record on appeal
supports the conclusion both are applicable here.
              First, on cross-examination defense counsel asked about the possibility
Keira suffered from sickle cell disease. Counsel asked Gleckman, the prosecution expert,
if throughout sections of many of Keira’s blood vessels, there were erythrocytes having a
sickle cell appearance. The trial court sustained the prosecutor’s relevance objection.
Next, counsel asked Gleckman if he had read a neuropathology report authored by Erlich.
Gleckman conceded Erlich had noted Keira had cells that were sickle cell in appearance.
When counsel asked Gleckman what sickle cell was, the court again sustained the
prosecutor’s relevance objection. As we explain anon, this evidence was relevant, and
counsel was not required to make an offer of proof. (Evid. Code, § 354, subd. (c).)
              Second, on cross examination the prosecutor asked Pietruszka whether
Methadone found in Keira’s system had contributed to her cause of death. When
Pietruska attempted to explain the impact of Methadone in McGee’s system, the trial
judge interrupted and told Pietruska that he was not answering the prosecutor’s question.
It was during a side bar following this colloquy the court made its comment about not
allowing “this complete or potential fabrication” to come into evidence.
              The prosecutor later asked Pietruska if he considered the subgaleal
hemmorages to be insignificant. Pietruska responded he did not, and explained “we also
have to understand that this is a child who comes from a mother with sickle cell disease.”
The prosecutor objected without stating any grounds for her objection, and the court
stated, “Yes. Sustained.” Defense counsel is not required to make an offer of proof if
such an offer would be futile. (Evid. Code, § 354, subd. (b).) Prior to this ruling, the
court had made it very clear it did not believe McGee’s sickle cell or her medications had

                                             42
anything to do with Keira’s death. Considering the trial court previously had declared
McGee’s defense a “complete fabrication or potential fabrication,” denied her mistrial
motion, and had not even required grounds for the objection it sustained, an offer of proof
would have been futile and might well have provoked another outburst from the judge.
Accordingly, the issue is not forfeited, and we will address the merits of McGee’s claim.
                McGee argues evidence concerning sickle cell was relevant because it
explained her condition and why it was necessary to take prescribed medications and
provided the basis for claiming Keira’s death was accidental. We agree this evidence
was relevant.
                Evidence concerning McGee’s sickle cell condition and the medications she
took were relevant on the issue of premeditation and deliberation. The evidence also
would have helped the jury understand the effects of the disease, including the severity of
the pain, and why McGee took so much medication. This was particularly important
because it would have rebutted the prosecutor’s accusations McGee was an uncaring drug
addict who cared more about drugs than her daughter. (Freeman, supra, 8 Cal.4th at
p. 491 [evidence relevant no matter how weak if it tends to prove issue before jury].) The
fact the jury asked about the effect of drugs on the issue of intent further demonstrates the
relevance of this evidence.
III. Prejudice
                A criminal defendant has a due process right to an impartial trial judge
under the United States and California Constitutions. (Bracy v. Gramley (1997) 520 U.S.
899, 904-905; Arizona v. Fulminante (1991) 499 U.S. 279, 309; People v. Freeman
(2010) 47 Cal.4th 993, 1000.) The harmless beyond a reasonable doubt standard
articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman), is applicable to due
process errors under the United States Constitution. (Arizona v. Fulminante, supra,
499 U.S. at p. 310; People v. Flood (1998) 18 Cal.4th 470, 525.) Under Chapman, supra,
386 U.S. at page 24, reversal is required unless a court can determine the error was

                                              43
harmless beyond a reasonable doubt. However, some trial errors, such as the application
of ordinary rules of evidence, do not implicate the federal Constitution and are reviewed
under the reasonable-probability test articulated in People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (People v. Marks (2003) 31 Cal.4th 197, 226-227.)
              What is clear from this authority is that the right to an impartial judge is a
constitutional right implicating due process concerns. Thus, because the trial judge’s
comments, and his evidentiary rulings, evidence his bias and implicate McGee’s due
process right to an impartial judge, we conclude the Chapman standard of review is
applicable here.
              In Sturm, the court addressed prejudice for judicial misconduct under
standards set forth in both Chapman, supra, 386 U.S. 18, and Watson, supra, 46 Cal.2d
818. (Sturm, supra, 37 Cal.4th at p. 1244.) The court stated, “Although no one instance
of misconduct appears to, in itself, require reversal, the cumulative effect of the trial
judge’s conduct requires reversal. . . . [¶] . . . ‘Perhaps no one of them is important in
itself but when added together their influence increases as does the size of a snowball
rolling downhill.’ [Citation.] The numerous instances of misconduct created an
atmosphere of unfairness and were likely to have led the jury to conclude ‘the trial court
found the People’s case against [defendant] to be strong and [defendant]’s evidence to be
questionable, at best.’ [Citation.] [¶] [T]he trial court interjected itself unnecessarily and
inappropriately into the adversary process. Many of the trial judge’s comments should
have been made at sidebar, and not in front of the jury; in commenting in front of the
jury, the trial judge often made comments that were unnecessary to explain his rulings
from the bench, and also substantively undermined the defense theory of the case.” The
court added that although the judge admonished the jury not infer the judge was biased
based on his comments, “it would be highly improbable that such admonishment could
prevail over the manner in which the trial judge conducted himself throughout the penalty



                                              44
phase trial. [Citations.]” (Sturm, supra, 37 Cal.4th at p. 1244.) The court concluded
reversal was required because a death sentence was not a foregone conclusion. (Ibid.)
              Here, as in Sturm, the cumulative effect of the trial judge’s misconduct and
the evidentiary errors requires reversal. The judge’s comments cast doubt on the
defense’s case and continued through closing argument, conveying the impression to the
jury he thought the defense’s case was fabricated. One comment in particular illustrates
the judge’s attitude toward the defense. When defense counsel inquired why the judge
would not allow Pietruszka to testify as to the side effects of McGee’s medications, the
judge stated: “I’m not going to allow this complete fabrication or potential fabrication to
come into evidence.” Although the judge said this outside the jury’s presence, his
animosity towards the defense manifested itself throughout the trial in numerous
comments. We assume the trial judge may not have intended to influence the jury’s
verdict, but the practical effect of his comments shifted the prestige of his office behind
the prosecution. As one court observed, “[I]t should be remembered as an indisputable
fact that every remark made by the trial court tending to disparage either party to a cause
or counsel has more or less effect upon the jury, unskilled as a rule in court proceedings
and, we think it may fairly be said, ever ready to accept any intimation from the court as
to what their verdict should be.” (People v. Zammora (1944) 66 Cal.App.2d 166, 209.)
              The trial judge erred in commenting on the key issue in the case during
Pietruszka’s testimony and erred in repeatedly belittling him in the jury’s presence. The
judge also erred in disparaging defense counsel in the jury’s presence through his rulings
and comments, including his apparent attempt to use humor. The judge’s treatment of the
key defense witness and counsel conveyed to the jury the judge’s conviction they should
reject the defense because he believed the defense was not credible. The court also erred
in vouching for the key prosecution witness, Gleckman, and telling the jury there was
evidence Keira’s death was the result of an intentional act while at the same time
chastising defense counsel for asking the same question. (People v. Harris (2005)

                                             45
37 Cal.4th 310, 347 [bias where 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”’”].) The judge’s conduct conveyed to the jury that the
judge believed the prosecution’s expert witness and the prosecution’s theory Keira’s
death was intentional.
              Additionally, as in Sturm, the trial judge here was not even-handed in his
treatment of counsel. The judge became embroiled in the trial and improperly interjected
himself when instead he should have either refrained from making most of his comments
or if he felt compelled to comment should have done so out of the jury’s presence.
              Although the trial judge admonished the jury after Pietruszka’s testimony
not to interpret his comments as his opinion on the facts or the believability of witnesses,
a modified version of CALCRIM No. 3530, we conclude this was insufficient to cure the
error. This was not the typical case where a trial judge made an isolated comment that
could be cured by such an admonishment. The judge’s misconduct against the defense
was pervasive and concerned the critical issue in the case. “[I]t would be highly
improbable that such admonishment could prevail over the manner in which the trial
judge conducted himself throughout the . . . trial.” (Sturm, supra, 37 Cal.4th at p. 1244.)
              The issue was whether Keira died accidentally or intentionally. McGee’s
defense was Keira died accidentally, but the trial judge, through his comments, conveyed
to the jury his belief that the defense case was meritless and the prosecution’s case was
strong. The judge’s comments were particularly damaging in light of his evidentiary
rulings, three of which as we discuss above were erroneous, and went to the heart of the
defense. The court’s exclusion of this relevant evidence hamstrung the defense.
              Finally, the trial court intervened to prevent the defense’s expert,
Pietruszka, from testifying it was his opinion Keira’s death was an accident after
remaining silent when the prosecution’s expert, Gleckman, testified her death was the
result of an intentional act. We find telling the trial judge’s comment when defense

                                             46
counsel inquired why the court allowed Gleckman to testify as to his opinion Keira’s
death was intentional but did not allow Pietruszka to testify as to his opinion her death
was accidental. The court stated the following: “You have not asked him -- and I was
going to ask him at the end -- I’m sorry.” (Italics added.)
              Based on the entire record, we conclude the cumulative effect of the judge’s
misconduct requires reversal. When considered in the aggregate, the judge’s comments
conveyed the impression to the jury McGee’s defense was unbelievable. If the error here
did not violate due process under the federal constitution, we would review McGee’s
claims pursuant to Watson, supra, 46 Cal.2d 818, and it is likely we would have reached
a different conclusion. But because the error here implicates due process rights, we must
apply Chapman and cannot conclude the error was harmless beyond a reasonable doubt.
IV. Sufficiency of the Evidence
              On appeal, McGee argues that assuming “someone intentionally” abused
Keira, there was no substantial evidence she was the perpetrator because either Stovall or
Cook could have killed Keira. We disagree.
              “‘“To determine the sufficiency of the evidence to support a conviction, an
appellate court reviews the entire record in the light most favorable to the prosecution to
determine whether it contains evidence that is reasonable, credible, and of solid value,
from which a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.”’ [Citations.] ‘“‘If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.’”’
[Citations.] The standard of review is the same when the prosecution relies mainly on
circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal. 4th 73, 104.)
              Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) Second degree murder is the unlawful killing of a human being with
malice aforethought that is not willful, deliberate, and premeditated. (§§ 187, subd. (a),

                                             47
189.) The elements of assault on a child under eight resulting in death are the following:
(1) a person, having the care or custody of a child under eight; (2) assaults the child;
(3) by means of force that to a reasonable person would be likely to produce great bodily
injury; and (4) resulting in the child’s death. (§ 273ab.)
              Here, there was sufficient evidence to establish McGee inflicted the injuries
that caused Keira’s death. There was evidence from which the jury could reasonably
conclude Keira was healthy until the day she died. There was evidence Keira previously
suffered bumps to her head, but Gleckman testified these minor injuries would not have
caused the massive amount of head trauma required to cause her death. In the hours
leading up to Keira’s death, the evidence demonstrated she was happy and healthy.
When McGee went to run errands, Stovall watched Keira and she appeared to be fine.
Later that night, Cook played with Keira and she appeared to be fine.
              Although there was evidence Stovall entered the master bedroom sometime
after midnight to use the bathroom, the evidence demonstrated McGee was alone with
Keira that night and she was Keira’s primary caregiver. McGee testified she put Keira in
her basinet about 1:30 a.m., and she laid down and fell asleep. About 90 minutes later,
she woke up and found Keira not breathing. There was no evidence anyone other than
McGee and Keira were in the master bedroom during that time. There was evidence
from which the jury could conclude McGee was tired and experiencing the effects of her
medication, but McGee did not testify she was awakened by any sounds. Both expert
witnesses testified Keira died from blunt force trauma. The critical issue at trial was
whether her death was intentional or accidental. Therefore, based on the entire record,
we conclude there was sufficient evidence to establish McGee caused Keira’s death.
(People v. Story (2009) 45 Cal.4th 1282, 1296-1297 [where trial court admitted
prosecution’s evidence, whether erroneously or not, sufficient to sustain guilty verdict,
Double Jeopardy Clause does not preclude retrial after reversal of guilty verdict].)



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                                DISPOSITION
          The judgment is reversed.



                                           O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




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