Filed 2/16/ 16 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,

v.

VICENTE RODRIGUEZ,
Defendant and Appellant. 2d Crim. No. B260694 (Super. Ct. No. VA132754) (Los Angeles County)

A trial judge has "'"' the power, discretion and affirmative duty

. . . [to] participate in the examination of witnesses whenever he believes t hat he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation and in eliciting facts material to a jus t determination of the cause. "'"' (Evid . Code § 775, People v Harris (2005) 37 Cal.4th 310, 350.) Vicente Rodriguez appeals from the judgment following his conviction by jury of possession for sale of cocaine (Health & Saf. Code, § 11351) and possession for sale of methamphetamine (Health & Saf. Code , § 11378). Appellant admitted th at he had a prior
conviction of possession for sale of a controlled substance. (Health & Saf. Code, § 11370.2,
subd. (a).) The trial cou rt sentenced him to county jail for five years. Appellant contends that
th e trial judge engaged in prejudicial misconduct by becoming too embroiled in the questioning of witnesses. We affirm.2 FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case On September 24, 2013, Los Angeles County Sheriff ' s deputies went to appellant ' s ho me to execute a search warrant. Deputy Miguel Beltran presented the warrant

to a ppellant , who said, " W hatever you f ind it belongs to my friend. " Beltran asked appellant
to show him the narcotics. He took Beltran to a storage area in the garage and point ed to a brown bag wedged between two plastic storag e containers. The bag contai ned cocaine. Appellant also showed Beltran a filing cabinet in the garage, said it contained narcotics, and pointed to its top drawer. Beltran found a digital scale and a Mor ton salt container in that
drawer. A hidden compartment in the salt container concealed two plastic bags of cocaine
and several baggies of methamphetamine

. The filing cabinet contained paperwork bearing appellant ' s name and empty plastic baggies like tho se used to package narcotics

. Beltran searched appellant ' s Toyota Corolla and found a digital scale and a WD

- 40 can in the glove compartment . A hidden section of the WD

- 40 can held plastic baggies of cocaine. D eputy Jeff Hoslet, a K

- 9 handler , and his d og, Jack, participated in the search. Jack alerted to the presence of narcotics in the gar age and Corolla.

Beltran searched the interior of appellant ' s home , including his bedroom. One pocket of a jacket in his bedroom closet contained about $9
, 000 in paper currency. The jacket appeared to be appellant ' s size. Beltran recovered a notebook from appellant ' s bedroom dresser drawer . Several pages in the notebook resembled the pay and owe sheets
that dealers use to document narcotics transaction s . Beltr an also searched the bedroom of appellant ' s adult daughter, Irene Rodriguez, and recovered about $11,000 in paper currency. The deputies did not locate any pipes or other drug paraphernalia during the search.

Beltran testified as an expert in the sales and possession of narcotics. He opined that the narcotics recovered from appellant ' s home were posse ssed for the purpose of
sale. He based his opinion on multiple factors, including the volume and value of the narcotics (several thousand typical doses of methamphetamine, with a combined weight of 11.97 grams, and total value of $11,000
, and several hundred doses of cocaine, with a combined weight of 86.38 grams, and total a value of $7
, 000) ; as well as the items recovered3

with the narcotics, i.e., a digit al scale and plastic baggies for packaging ; a large amount of cash ($20,000) ; and pay and owe sheets . In addition, the absence of any paraphernalia for consuming the narcotics suggested they were not possessed solely for personal use. Defense Case Appe llant ' s daughter, Irene
, testified that she kept her savings, in cash, in her home. The $11,000 recovered from her room included a $5
, 000 tax return and several years ' savings from her employment at a Metro PCS and a beauty salon. She testified that appe llant
derived his income by selling cars . Like Irene, he stored his sa vi ngs, in cash
, in their home.
She further testified that from June through September 2013, Edgar Solorio lived in appellant ' s garage and regularly drove appellant ' s Corolla.

Solori o testified that he met appellant about 10 years before trial, when appellant sold him a car. Edgar was living in appellant ' s garage and using appellant ' s Corolla
from June 2013, through late September

. Solorio sold c ocaine and me thamphetamine
, which
he stored in appellant ' s garage and Corolla. He did not tell appellant about his narcot ics sales.
O n September 24
, Solorio left appellant ' s home at around 6 :00 a.m. He left a bout $3,000
worth of narcotics in appellant ' s garage , and left about an ounce of n arcotics in a yellow bag
, on the floor of the Corolla

. When Solorio returned two days later, his narcotics and other possession s were gone. He left immediately and did not return until he learned appellant was facing charges related to Solorio ' s narcotic s. D ISCUSSION Appellant claims that the trial court engaged in prejudicial misconduct throughout trial. More specifically, he contends that the court interfered with the examination
of witnesses in a manner which conveyed the court ' s bias in favor of t he prosecution.

" However, he did not object to the trial court ' s questioning, thus making the claim not cognizable on appeal. " People v. Harri s (2005) 37 Cal. 4th 310, 350; People v. Seumanu (2015) 61 Cal.4th 1293, 1320.) Waiver aside, we conclude the co urt did not engage in prejudicial misconduct.

" 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.] To4

this end, ' the court has a d uty 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
b y [Penal Code] 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 asce rtainment of the truth regarding the matters involved. '" ( People v. Sturm (2006) 37 Cal.4th 1218, 1237 ( Sturm ) .)
The court ' s participation in the examination of witnesses, without more, is insufficient to
establish judicial misconduct because " [a] trial court has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. [Citations.] " ( People v. Cook (2006) 39 Cal.4th 566, 597.) " However, ' a j udge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant. ' [Citation.] " ( Sturm
, supra , at p. 1237.) In reviewing a claim of judicial misconduct, "' we must determine whether the judge ' s beh avior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. ' [Citation.] " ( People v. Snow (2003) 30 Cal.4th 43, 78.)

In claiming judicial misconduct
, appellant cites 22 instances in which the trial
court intervened in the examination of witnesses. Nineteen interventions occurred during the
direct and cross

- examination of prosecution witnesses. The interventions occurred during
both direct and cross

- examination. We have carefully examined the record and conclude th at the court ' s interventions do not rise to the level of judicial misconduct

. Some examples of the challenged interventions are described below.

The trial court intervened twice during the prosecutor ' s examination of Deputy Hoslet, the K

- 9 handler , bef ore Hoslet responded, to explain the prosecutor ' s meaning

. On the first occasion, t he prosecutor asked, " When you say you searched the residence, which portion of the residence did you go to? " Before Hoslet responded, the court interjected, " She
means in itially. " On the second occasion, after the prosecutor posed a question, the court interjected, " She means in relationship to you sta rting your search. " But the court also
interven ed in a similar fashion during defense counsel ' s examination of Sergeant M iguel5

Mejia, who took the video of the search premises. Counsel asked, " And what was your role?
Your

-- What were you actual ly doing during the search? " Mejia responded
, " Well, there is
number of things that we are responsible for as sergeant . Um, I don ' t know

-- , " at which point the court interjected as follows: " I think he ' s asking particularly what was your particular task that day? Were you guarding a front door? The back door? Taking pictures? Looking for d ope? Not your overall duties, but your specific assignment. "

Appellant further c omplains that the court intervened during Beltran ' s testimony. For example, t he court asked him how many times he had previously testified in

court as an expert regarding narcoti cs sales, use, and packaging. La ter, w hen Beltran testified
that the total street value of the recovered narcotics was about $18,000, the court asked him how much of that value was attributable to cocaine and methamphetamine , respectively.

Appellant also challenges the trial court ' s r aising and sustaining objections
while defense counsel examined witnesses

. Generally, the court ' s objections concerned questions which elicited marginally relevant or cumulative testimony, such as the names of appellant ' s family members who were detained during the search, and the order of their

appearance. Similarly, w hile questioning appellant ' s daughter, Irene, defense counsel asked the names and ages of her siblings. After defense c ounsel established that officers escorted appellant from his home to the patrol vehicle, the court sustained its own objection to additional questions about the " steps from the house to the car. " The court also raised and sustained objections to questions of an argumentative nature. For example, appellant ' s counsel asked Beltran wheth er it was surprising, or whether it would be expected
, that
officers would find various documents bearing appellant ' s name in the filing cabinet in his

garage

. In sustaining and raising its own objections, the court reasonably exercised its d uty to control trial proceedings, including the presentation and exclusion of evidence. (Pen. Code, §
1044. ) We note that court sustained its own objection to a segment of the prosecution expert ' s testimony as beyond the scope of his expertise
, and admon ished the prosecutor for asking a witness ( Solorio ) an argumentative question , in the absence of any o bjection from
defense counsel.6 Appellant further complains that trial the court " repeated ly interjected his own descriptions of what was taking place " in a video of the search exhibit as i t was played for the jury. Our review discovered that t he court properly made neutral, descriptive comments for
the record. There is no suggestion that any such comment was inaccurate.

T he court ' s interventions la rgely consisted of questions or comments which would elicit material facts, clarify confusing or unclear testimony ( People v. Cook , supra , 39 Cal.4th at p. 597) and " control all proceedings during the trial, and . . . limit the introduction
of evidence and the argument of counsel to re levan t and material matters

. . . . " (Pen. Code, § 1044; Sturm , supra , 37 Cal.4th at p. 1237.) In claiming the court committed misconduct,

ap pellant relies primarily on Sturm, where our Supreme Court reversed a death penalt y judgment due to the trial court ' s pervasive misconduct. ( Id ., at p p . 1230, 1245.) He argues
that
, as in Sturm , " the trial judge ' s behavior created the impression that he was allied with the prosecution ' by intervening in a significantly uneven fashion and making comments that such interventions were made in the prosecutor ' s stead. '" ( Id.
, at pp. 1241, 1242.)

Appellant ' s reliance on Sturm is unavailing. The Sturm trial court " repe atedly and improperly disparaging defense counsel, which conveyed to the jury that the message that
the court was allied with the prosecution. " ( Sturm , supra , 37 Cal.4th at p. 1240.) The court told defense counsel his line of questioning was " going nowhere; " said counsel was " not grasping my ruling; " ac cused counsel of " purp osely trying to ' sneak ' in improper evidence; " and described defense counsel to the jury as having " supposedly l earn[ed] the rules of
evidence " in law school. " ( Id.
, at pp. 12 35, 1240 , 1243 ; People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) In addition, the court advised jurors that " 99 percent of the time he had ruled against defense
counsel. " ( Sturm , supra , 37 Cal.4th at p. 1242.) The court also " belittled defense witnesse s on several occasions
, " which " conveyed to the jury the unfortunate message that the trial judge did not take seriously the testimony of the defense experts. " ( Id
., at pp. 1233, 1240 .)

The conduct of the court presiding over appellant ' s trial does not a pproach the pervasive prejudicial judicial misconduct in Sturm

. Th e court did not disparage defense7

counsel , treat him discourteously , or convey the message that it did not take defense witnesses seriously

. Further, before the jury began its deliberati ons, the court instructed it,

" Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be. " (CALCRIM 355 0.) It is presumed the jury understood and followed the instr uction. ( People v. Harris (2005) 37 Cal.4th 310, 350.) Moreover, even if the court had engage d in misconduct, such error would be harmless under any standard of review , in view of the strong evidence of appellant ' s guilt. ( People v. Harris, supra , 37 Cal.4th at p. 372; Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818.) Finally, we reject appellant ' s claim that trial counsel rendered ineffective assistance of counsel by failing to object to judi cial
misconduct. In orde r to prevail on such a claim, a defendant " must establish not only deficient performance . . . but also resultant prejudice. " ( Strickland v. Washington (1984) 466 U.S. 668, 694.) The overwhelming evidence supporting appellant ' s convictions precludes his establishing the requisite prejudice to establish that counsel was ineffective.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.8 John A. Torribio, Judge Superior Court County of Los Ange les

______________________________

Kimberly Howland Meyer, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.