1 Filed 4/16/15 P. v. McCarthy CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

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

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

1 Brady v. Maryland (1963) 373 U.S. 83.2 FACTUAL AND PROCEDUR AL BACKGROUND
Prosecution Evidence Doe was 18 years old at trial. She tes tified that when she was six years old, appellant, her adoptive father, showed her his pe nis and put her hand on it. She said this happened multiple times each week. She would whin e and complain that she did not want it to happen. When asked why she did it, she responded: “Because he was supposed to be my dad, and he told me to do it. If you don’t do something you r dad tells you to do, usually you get in trouble for it.” She described her father as a disciplinarian and said that to discipline her, he would give her a time out, take something away, or sometimes she would be spanked. She complied with hi s requests so she would not be disciplined and because she was “afraid.” She said appe llant told her it was their “little secret” and asked her to promise not to tell anyone. She thought if she told anyone, she would get in
trouble. Doe was forced to perform oral sex on appellant more than once a week from the time she was eight years old until she was 15 y ears old. This would sometimes cause her pain because appellant would pull on her hair. When Doe wa s seven years old, appellant touched her vagina with “[h] is fingers. Sometimes hi s mouth.” Doe remembered appellant inserted his fingers into her vaginawhen she was 10 years old. She said she performed these acts due to “fear” and it was a “matter of safety.” She was afraid to tell anyone because “I didn’t know what [appellant] could have done . . . “I was scared out of my mind that he would murder my motherif she found out. I was also worried he
would beat me.” When Doe was 15 years old, she was the vi ctim of a sexual assault by a stranger. She began going to therapy but did not tell th e therapist about appellant’s abuse. She testified she could talk about the strange r’s assault because there was no fear of consequences, but she knew if she talked abou t appellant, the therapist could not keep it confidential. She testified she strategized ways to avoid being alone with appellant including locking herself in the bathroom.3 When Doe began a sexual relationship with another 16-year-old, appellant became angry. Doe’s mother (mother) testified that a ppellant “was really, really scary angry. I mean, I thought he was gonna hur t her.” She testified that appellant was so enraged he was “hitting [Doe].” Doe testified appellant expressed his anger by “rap[ing]” her. He came into her room while she was dressing and dropped a red condom on the bed. She knew appellant wanted to have sex with her a nd she felt afraid. Appellant handed her the open condom to put on his penis and then he had sex with her. Doe began collecting appella nt’s ejaculations. After appellant ejaculated in her mouth, she would spit it into a tissue and save th e tissue. She collected five tissues in the
box and turned them over to the police. She also includ ed a note so “he wouldn’t get away with it, even if something had happene d to me.” She said she had periods where
she was suicidal due to the abuse. Th e Oakland Police Department criminologist conducted a DNA analysis of the five tissues and concluded they contained semen and sperm. Three of tissues also showed the pr esence of saliva. The criminologist matched the DNA on the tissue to appellant’s DNA and found the profile woul d be expected to occur in 1 in 175 quin tillion members of the population. It would be “highly unlikely” that “anyone else on this earth” c ould have provided the sperm. Doe made a pretext call to appellant fro m the Oakland Police Department. In the call, appellant made several incriminating st atements. He said, “Oh so you think I’m gonna still try to touch you right?” He said that it would not happ en again but he has never “done anything to you, you did not approve of or want.” Doe stated they would not have sex again and appellant sa id, “no” and then she asked ap pellant if she would have to “touch you or suck you anymore” and he said, “[n]o.” He told her he did not want her to be upset about it. She asked him if it ever ha ppened at the first house they lived in and he said no, just at “our house now” because sh e “had [her] own floor” and “had a lot more
freedom here.”4 Defense Evidence Appellant testified he ne ver had Doe touch his penis and he never touched her vagina, other than one instance when she had a rash as a child . He said the only time his daughter ever put her mouth on his penis was when she was 16 years old. He testified that she tried to put her mouth on his penis when she was 14 years ol d and he told her it was not appropriate. He stated that she woul d try to touch his peni s through his pants or flash her breasts at him to get a reaction. When Doe told him about having sex with her boyfriend, he testified he was calm, but became upset when he realized that she had left
her brother alone at the Bart station. He said that he “swatted her on the behind.” He hit
her three times. When Doe was 16 years old, she came to him and said she wanted to have sex with him. He said he approached her as sh e was lying on the bed, but then he walked away and did not have sex with her. On cross- examination, he testif ied he did not insert his penis into her vagina, but that “[s]he gr abbed me in a way that I entered her vagina very briefly.” He claimed Do e only put her mouth on his peni s one time that day, but on cross-examination, he stated she sucked his penis more than once that day in order to explain his statements duri ng the pretext call. Motion for Acquittal and Verdict At the close of the People’s case, appella nt moved for acquittal pursuant to Penal
Code section 1118.1 2 based on insufficiency of the evidence. Appellant argued there was
insufficient evidence of dure ss for counts two through th irteen because there was no
evidence of actual force or th reats. The prosecution argued duress was established by evidence of psychological coercion based up on Doe’s age, the disparity in size, and appellant’s role as an authority figure. As to counts two, three, and four which alleged Doe was under 10 years old at the time of the assaults, defense counsel argued her testimony was speculative as to when the incide nts of oral copulation occurred, and there
was insufficient eviden ce the acts occurred before age 10. The court dismissed count two

2 Unless noted, all further statutory references are to the Penal Code.5 after the prosecutor agreed ther e was an insufficient factual basis as to Doe’s age, but
found sufficient evid ence for counts three and four. Th e court then denied the motion for judgment of acquittal as to counts three and four finding sufficient evidence to sustain the
convictions. 3 A jury convicted appellant of six counts of aggravated sexual assault of a child by oral copulation (§ 269, subd. (a)(4)), four counts of aggravat ed sexual assault of a child by sexual penetration (§ 269, subd. (a)(5)), one count of continuous sexual abuse of a child (§ 288.5, subd. (a)), one count of forcible oral copu lation (§ 288a, subd. (c)(2)(A)), and one count of forcible rape (§ 261, subd. (a)(2).) The court sentenced appellant to a determinate term of 32 years followed by an i ndeterminate term of 150 years to life.
DISCUSSION I. The Court Did Not Engage in Judicial Misconduct Appellant argues he was denied his due proce ss right to a fair trial by an impartial judge because the court “inter jected herself” into the pr oceedings by taking “over questioning for the prosecution,” expressing he r “personal feelings,” and assisting the prosecution. We disagree. “Although ‘the trial court has both th e duty and the discretion to control the conduct of the trial’ [citations], ‘the Due Pr ocess Clause clearly requires a “fair trial in a fair tribunal,” [citation], before a judge with no actual bias against the defendant or interest in the outcome of his pa rticular case.’ [Citations.]” ( People v. Harris (2005) 37 Cal.4th 310, 346 ( Harris ).) “‘The duty of a trial judge, par ticularly in criminal cases, is more than that of an umpire ; and though his power to exam ine the witnesse s should be
exercised with discretion and in such a wa y as not to prejudice the rights of the

3 The reporter’s transcript does not reflec t the court’s ruling on counts five through thirteen but it appears the motion was denied on all counts. Appellant, however, can raise a sufficiency of the ev idence claim to all counts on appeal. (See People v. Butler (2003) 31 Cal.4th 1119, 1126, quoting Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [“‘Generally, points not urged in the tria l court cannot be raised on appeal. . . . The contention that a judgment is not supporte d by substantial evidence, however, is an obvious exception’”].)6 prosecution or the accused, still he is not compelled to sit quietly by and see one wrongfully acquitted orunjustly punished when a few questions asked from the bench might elicit the truth. It is his primary duty to see that justice is done both to the accused and to the people.’” ( People v. Raviart (2001) 93 Cal.App.4th 258, 272, quoting People
v. Golsh (1923) 63 Cal.Ap p. 609, 614-615.)
A “‘trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itsel f with the prosecution.’” ( People v. Sturm (2006) 37 Cal.4th 1218, 1233, quoting People v. Carpenter (1997) 15 Cal.4th 312, 353, overruled by statute on other grounds in Verdin v. Superior Court (2008) 43 Cal.4th 1096.) “Jurors rely with great confidence on the fairness of judges, and upon th e correctness of their views expressed during trial.” ( Id. at p. 1233.) “The role of a reviewing court ‘is not to determine whether the trial judge’s conduct leftsomething to be desired, or even whether
some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]’” ( Harris, supra, 37 Cal.4th at p. 347.)
A

. Appellant’s Claim is Waived
Where a defendant contends the court “‘co nsistently displayed a bias in favor of the prosecution’” but never objected to the tria l court’s participation in the examination of witnesses, defendant has waived any claim of error. ( People v. Raviart, supra, 93 Cal.App.4th at p. 269.) “It is settled that a judge’s examination of a witness may not be assigned as error on appeal where no ob jection was made when the questioning occurred.” ( People v. Corrigan (1957) 48 Cal.2d 551, 556.) Here, appellant’s failure to object on the ground of judicial bias forfeits the claim on appeal. ( People v. Chatman (2006) 38 Cal.4th 344, 397; Harris, supra, 37 Cal.4th at p. 350; People v. Snow (2003) 30 Cal.4th 43, 78.) B. Appellant Has Not Demonstrated Judicial Bias We consider appellant’s claim of judicial misconduct on the mer its and reject it. Appellant’s examples fall into three categorie s: (1) the court was sympathetic to the7 prosecution; (2) the court was antagonistic to the defense; and (3) the court overstepped its bounds during trial.
i. The Court’s Interactio n with Prosecution Witnesses Appellant asserts the court displayed a sympathetic attitude to the victim and assisted her with her testimony. Appellant argues the court improperly commented on personal items Doe had with her in court. The court stated: “So the record should reflect that she has a Rubik’s [C]ube, which is perfectly aligned. I don’t know if that’s just out of the package. But good going. And then a pi cture that she has with her. Cute dog.” In response to questions about the Rubik’s Cube and picture, Doe explained they are a comfort to her. The court then responded to Doe’s statements that her biological father and brother can solve the Rubik’s Cube, just lik e she can. Appellant cites no authority to support his claim that the court’s comments we re in any way improper. As the People point out, the court was attempting to put Do e at ease and there is nothing improper about the court being “nice” to a witness. She wa s an 18-year-old being asked to testify in court about molestations by her father which presented an uncomfortable and intimidating situation. 4 (See Cal. Code Jud. Ethics , canon 3B(4) [“A judge shall be patient, dignified, and courteous to litigants, ju rors, witnesses, lawyers, and others with whom the judge deals in an o fficial capacity . . .”]; Cf. People v. Sturm, supra, 37 Cal.4th at p. 1240 [it is misconduct for a trial judge to convey to the jury disdain for witnesses and their testimony].) Appellant contends that the court improperl y clarified Doe’s testimony. There are, in fact, several examples th roughout the witnesses’ testim ony of the court clarifying dates, time periods, and other facts. Appe llant does not and cannot demonstrate these clarifications are prejudicial or inappropriate . “‘Numerous courts including our own have recognized that it is not mere ly the right but the duty of a trial judge to see that the

4 Appellant also argues, without citation to authority, the court improperly referred to Doe as “my dear.” While it may have been pr eferable not to use a term of endearment, the court only used it once, in th e context of trying to put the victim at ease. This isolated incident was not prejudicial to appellant.8 evidence is fully developed befo re the trier of fact and to assure that ambiguities and
conflicts in the evidence are reso lved insofar as possible.’” ( People v. Raviart, supra, 93 Cal.App.4th at p. 270, quoting People v. Carlucci (1979) 23 Cal.3d 249, 255.) According to appellant, one of these clarif ications helped the prosecution establish duress. Doe testified when appellant would ask her to touch him, she would whine about it. The court clarified the time period, “Just for the record, we were talking about when you were 7. Did you whine when you were 6, as well as sort of your response?” The court’s clarification was not improper. A trial court’s participation in the examination of witnesses involving “questions seeking to clarify the testimony” does not constitute judicial misconduct. ( People v. Raviart, supra, 93 Cal.App.4th at p. 270.) Here, the court’s questions were “neither repetiti ous, disparaging, nor prejudicial.” ( Id. at p. 271; People v. Hawkins (1995) 10 Cal.4th 920, 947-948, overruled on other grounds in People
v. Lasko (2000) 23 Cal.4th 101, 109-110 [a tria l judge may question witnesses to clarify testimony or assist the jury in understanding the evidence].) Appellant also argues the court improperly engaged in an extensive colloquy with Doe. In attempting to clarify Doe’s testim ony about disclosing the abuse to her mother and her mother calling the crisis hotline, the court asked Doe se ven questions. The questions summarized and clarified Doe’s te stimony about the topic. “Evidence Code section 775 “‘“confers upon the trial judge th e power, discretion and affirmative duty . . . [to] participate in the examination of witne sses whenever he believes that he may fairly aid in eliciting the truth, in preventing mi sunderstanding, in clar ifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determ ination of the cause.’’’ ( Harris, supra, 37 Cal.4th at p. 350, quoting People v. Carlucci
, supra , 23 Cal.3d at p. 256; People v. Pierce (1970) 11 Cal.App.3d 313, 321 [“The mere fact that a ju dge examines a witness at some length does not establish misconduct, nor does the fact that the testimony elicited by the judge’s questions would probably have been elicited by counsel.”].) We conclude “[t]he court’s questions were neither repetitious, di sparaging, nor prejudicial.” ( People v. Raviart,

supra, 93 Cal.App.4th at p. 271.)9 ii. The Court’s Interaction with Appellant and Appellant’s Counsel Appellant asserts the court had an antagonistic attitude toward appellant and his
counsel. “A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.” ( People v. Carpenter, supra, 15 Cal.4th at p. 353; People v. Fudge (1994) 7 Cal.4th 1075, 1107.) Here, “[w]e have read each of the alleged instances of hostility in context. They fall far short of establishing misconduct or ‘betray[ing] a bias against defense counsel.’” ( People v. Carpenter
, supra , 15 Cal.4th at p. 353, quoting People v. Wright (1990) 52 Cal.3d 367, 411, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459.) Appellant argues the court limited any in troductory testimony while appellant was on the stand, but allowed such testimony from Doe. The record does not support this
assertion. Defense counsel asked appellant several introduc tory questions, including how long he had been marri ed, where he met his wife, and th e type of work he did. The prosecutor objected on relevance grounds when counsel asked appellant what he studied in college and the court sustained the objectio n. After the prosecutor objected to the details of appellant’s work history as i rrelevant, the court overruled the objection and allowed appellant to testify because it was “background and foundational.” Appellant also argues the court’s cl arifying questions during his testimony demonstrated bias. Appellant identifies tw o instances where the court asked specific questions clarifying the time fra me in which an incident o ccurred, one inst ance where the court clarified who appellant meant when he used the term “her bedroom,” and one instance where the court responde d to an objection by the pros ecutor that defense counsel had not posed a proper questio n. Appellant asserts these questions were designed to interrupt defense counsel’s questioning and dem onstrated the court’s bias. We disagree.
The record demonstrates the court asked clarif ying questions about specific dates, ages, names, and time frames of other witnesses at trial including Doe, mo ther, and one of the investigating officers. As we have stated, a judge may ask questions to clarify witness testimony and to assure the evidence is fully developed. ( People v. Raviart, supra, 9310 Cal.App.4th at p. 270; People v. Hawkins, supra, 10 Cal.4th at pp. 947-948; People v.
Abel (2012) 53 Cal.4th 891, 917, quoting People v. Santana (2000) 80 Cal.App.4th 1194, 1206 [“‘[T]he court has a duty to see that justice is done and to bring out facts relevant to the jury’s determination’”]; People v. Carlucci, supra, 23 Cal.3d at p. 255 [“‘[I]f a judge
desires to be further informed on certain points mentioned in the testimony it is entirely proper for him to ask proper questions for the purpose of developing all the facts in regard to them.’”].) Appellant next asserts the court contradict ed him when he stat ed preseason for the NFL began in September or October and preseason games were in October. When defense counsel asked: “Pre-season?,” the court stated, “No. I can take judicial notice of the fact that it is in August and may be th e first week of September.” Defense counsel stated, “I am with the judge on that one, but that’s all right.” Appellant then said, “I’m sorry” and the court responded, “That’s all righ t.” While it may have been preferable for the court to avoid such distracting comments, they were not prejudicial. Our Supreme
Court has held that even where a sarcasti c or joking remark was improper, it does not create prejudice if it could not have had an effect of the jury’s verdict. ( People v. Abel,

supra, 53 Cal.4th at p. 916.) He re, appellant asserts the cour t’s comment was designed to
demonstrate the court’s “lack of belief in [appellant’s] credibility.” The comment could just as likely been the court’ s attempt to ease tension by reference to a shared area of interest. ( Id . at p. 915 [“[A]s with the other rema rks made by the court throughout the trial, the comment reflects the court’s prope nsity for quipping whenever the opportunity arose”].) Appellant also claims that when he bega n to testify about a prohibited issue, the court responded too “abruptly.” During his te stimony, appellant began to talk about Doe at the time of her adoption and said, “Well, she came to us fairly --.” The prosecutor objected and the court said, “Whoa. I am with you now.” The court told the jury counsel needed to appear in chambers before appellant responded. Outside the presence of the jury, the court advised counse l it was concerned appellant w ould testify Doe was abused before she came to live with appellant and defense counsel agreed. Defense counsel11 offered to move on to another topic, but th e court stated that it needed to admonish appellant directly, outside the presence of the jury. Appellant ne eded to understand it was “not an appropriate subject” and the cour t did not want to risk contaminating the jury. The court returned to th e courtroom and told the jury, “I am going to need to take a quick break outside of your pres ence because I need to put so me things on the record that are not for the jury ’s purview.” In accordance with its duty to control the proceedings, when it became apparent appellant was going to provide inadmissible evidence, the court interrupted appellant’s testimony and conferred with counsel outside the presence of the jury. (§ 1044 [“It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expediti ous and effective ascertainmen t of the truth regarding the matters involved.”]; People v. Sturm, supra
, 37 Cal.4th at p. 1237 [“The trial court has a statutory duty to control trial proceedings, including the introduc tion and exclusion of evidence.”]) Next, appellant argues that when the co urt asked him about his tone of voice during a dramatic interaction with his dau ghter, it showed the court disbelieved his testimony. Appellant describe d an incident when Doe snuc k up on him and put her hand on his penis and tried to put her mouth on his penis. Appellant testified that he said, “Honey, you need to leave.” The court then inquired: “In the same tone you are using now?” and appellant said, “yes.” The court st ated, “A very calm voi ce; is that how you described it.” Appellate counsel attempts to draw an inference that this exchange demonstrated the court “disbeliev[ed] [appe llant’s] testimony.” We could, however, reach the opposite conclusion and find the co urt was attempting to assist appellant by emphasizing his calm voice. We cannot dedu ce the court’s reason from the record and cannot conclude that the court’s attempt to clarify appellant’s tone was misconduct. In passing, appellant cites People v. Santana (2000) 80 Cal.App.4th 1194 ( Santana ), where the Second District reversed a conviction for judicial misconduct. In
Santana , the trial court asked exte nsive questions of the defense witnesses and belabored12 points of evidence that were adverse to Santan a taking “on the role of prosecutor rather than that of an impartial judge.” ( Id. at p. 1207.) Defense counsel objected multiple times to both the court’s questioning of witn esses and using facial expressions that
indicated the court did not believe the appellant. The Santana court held the trial court “intervened as an adversary to such an ex tent” to constitute misconduct, and explained
the “record before us reveals the trial court repetitiously, disparagingly and prejudicially questioned defense witnesses[.]” ( Ibid. ) “By continuing this adversarial questioning for page after page of reporter’s transcript, the trial court created the unmistakable impression it had allied itself with the prosecuti on in the effort to convict Santana. These instances of impropriety are so egregious as to require reversal of Santana’s conviction.” ( Ibid .)
Unlike Santana , we do not find the court was allie d with the prosecution or biased against appellant or defense counsel. On ap peal, appellant fails to cite examples where the court made rulings favorable to the defens e or assisted during appellant’s testimony. At one point during cross-examination of Do e, the prosecutor objected that defense
counsel had mischaracterized Doe’s testimo ny. The court sustained the objection and provided a detailed explanation to defense counsel and then stat ed, “But I understand what you’re getting to and I just think the wa y it is characterized I am just going to
sustain it.” Counsel stated he understood and th e court replied, “You got it. We just have to get it in the right form.” At another instance, during the direct examination of appellant, the court sustained an objection by the prosecutor to a question about Doe manipulating her brother. After a few additi onal questions, the court stated, “I am going to reverse my ruling” and explained the test imony was relevant to appellant’s state of mind. ( People v. Raviart
, supra , 93 Cal.App.4th at pp. 271- 72 [“Defendant contends the trial court “‘consistently displayed a bias in favor of the prosecution’” but offers no concrete example of any such bias , and we find none ourselves.”].) Finally, at the sentencing hearing the court complimented both counsel on the record: “Counsel, I really want to commend each of you for trying what I will call an admirably professionally tried and competently tried case for both the People, as well as13 for the defense. [¶] You have a lot of legal ac umen, both of you. Cl early your experience in trying cases shows, but yo ur professionalism and your resp ect that you showed to one
another and to the Court in this sensitive type of a case is ab solutely noted by the Court, and it really has been an honor for me as the judge to have both of you in this courtroom to try this matter.” (See People v. Wright (1990) 52 Cal.3d 367, 411, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, 459 [fi nding no merit to appellant’s contention that the judge was bi ased against the appellant or defense counsel where “the trial court voiced considerable praise for counsel’s abilities and performance.”].) iii. The Court Did Not “Overstep” its Role Appellant asserts the c ourt overstepped its bounds by questioning witnesses and providing explanatory rulings restating witness testimony. The court asked questions of all six witnesses. As detailed in the previo us two sections, many of these questions were to clarify facts for the jury. One example appellant provide s is during the testimony of the criminalist, the court asked several clarif ying questions. The court stated, “For those of us who took biology a long time ago, I ju st want to make sure we are all following you” and then asked about the DNA typing of epithelial cells . Later the court asked the criminalist to explain what alleles are. When the witness id entified the match of appellant’s profile to the examined cells from the tissues as 1 in 1 75 quintillion, the court asked, “It is like 18 zeros?” When the w itness stated the prob ability as 1 in 127 quintillion, the court asked if th e earth has less people and the witness said the earth has 7 billion people and the court aske d if this number is greater th an that. We do not need to go through a myriad of examples because we conclude that the court asked questions of both prosecution and defense witnesses equally. (Cf. People v. Sturm, supra, 37 Cal.4th at p. 1241.) The court’s questions were limit ed in quantity and soug ht only to clarify each witnesses’ testimony. We have “thoroughl y reviewed the transcript of the trial and each instance of the trial court’s participation in the questioning of witnesses, and we are
satisfied that the trial c ourt’s involvement did not c onstitute misconduct.” ( People v.
Raviart , supra , 93 Cal.App.4th at p. 271.)14 Appellant cites two instances where the court summarized Doe’s testimony in asking a question or ruling on an objection. The court summarized Doe’s testimony about why she remembered the fi rst time she orally copulate d appellant and asked Doe if the court’s summary was correct. In another exchange, the prosecutor asked Doe if she feared there would be conseque nces if she did not perform se x acts with appellant when she was 12 or 13 years old. Doe replied yes and the prosecutor asked, “What did you think might happen?” Defense counsel obje cted to the question as “[a]sked and
answered” and the court overrule d the objection and stated that an earlier response was not referencing Doe at age 12 or 13. The co urt stated, “I know she has described the safety issue, but I think more specifically he is asking, What did you think, in fact, would occur. I know she has described some things when she was at 6-ish and 7, but I don’t
know that we have 12 and 13. It’s overruled.” The pros ecutor asked a few questions about her safety concerns at ages 12 and 13 and Doe seemed not to understand the questions. The court then interjected, “She di d say that she felt there was a safety issue, she felt in terms of trying to get out of the situation, she needed to tell someone, and she
was scared out of her mind th at the [appellant] might murder her mother, that he would beat her if she went about it the wrong way. So that is part of the testimony now,
Counsel.” We do not endorse the trial judge’s expl anatory rulings restating testimony. “[W]e
would not endorse all of the trial court’s questioning quoted above and, indeed, would find some of it inappropriate. On the facts of this case, however, we find no prejudice.” ( Harris , supra , 37 Cal.4th at p. 350.) While we find that some of the court’s comments
“would have been better leftunsaid,’” we do not believe the court’s behavior “‘was so prejudicial that it denied [defendant] a fa ir, as opposed to a perfect, trial.’” ( People v. Snow, supra , 30 Cal.4th at p. 81, quoting United States v. Pisani (1985) 773 F.2d 397, 402.) The court was actively engage d in the trial but did not express its personal beliefs or exhibit bias toward appellant. “A careful examination of the reco rd convinces us that the judge’s questions were not a guise for conve ying to the ju ry the court’s disbelief in15 defendant’s evidence but were asked to get the truth estab lished, and that they fairly and impartially brought out relevant and material testimony.” ( People v. Rigney (1961) 55 Cal.2d 236, 244.) C. Appellant Cannot Demonstrate Prejudice The Supreme Court has applied the standard of People v. Watson (1956) 46 Cal.2d 818 ( Watson ), to analyze prejudice in like circumstances. ( Harris, supra, 37 Cal.4th at pp. 350-351.) Under the Watson standard, reversal is require d if it is reasonably probable
a different outcome would have resulted in the absence of the mi sconduct. Here, the evidence of appellant’s guilt wa s overwhelming. Doe testified to years of abuse and provided clear testimony about the types of abuse beginning at age six. She collected appellant’s ejaculations in tissu es and saved them. The crim inologist testified the sperm contained appellant’s DNA. In the pretex t call, appellant adm itted the abuse by telling Doe she would no longer have to touch him, suck him, or have sex with him. Appellant admitted when Doe was 16 years old, she performed oral sex on him and his penis “entered her vagina very briefly.” Further, we presume the ju rors followed the court’s instructions and decided the case based on the evidence before them. ( Harris, supra, 37 Cal.4th at p. 350.) The court instructed the jury: “It is not my role to tell you what your ve rdict should be. Do not take anything I said or did during the trial as an indication of what I thin k about the facts, the witnesses, or what your verdict should be.” It is not reasonably probable that the jury
would have reached a different verdict in the absence of the court’s participation in the trial. ( Id . at p. 347 [some of trial judge’s questi ons to defendant were inappropriate, but not prejudicial because the ev idence of guilt was strong].)
II. Duress Appellant contends there was insufficien t evidence of duress for his convictions on counts three through fourteen because appe llant never threatened Doe to get her to agree to the sexual acts. We disagree. In reviewing a claim of insufficiency of the evidence of duress, we determine whether, on the record as a whole, any rationa l trier of fact could find appellant guilty16 beyond a reasonable doubt. ( People v. Manibusan (2013) 58 Cal.4th 40, 87, citing People v. Zamudio (2008) 43 Cal.4th 327, 357.) “[W]e review the evidence in the light most favorable to the prosecution and presum e in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” ( Ibid .) The convictions for aggravated sexual assault of a child under section 269 reference section 288(a) for oral copulation a nd section 289 for sexual penetration. These two sections require the sexual acts be co mmitted “against the victim’s will by means of force, violence, duress, menace or fear of immediate and unlawful bodily injury.” (§§ 288, subd. (c)(2)(A), 289, subd. (B).) Duress is defined as “a direct or implied threat of force, violence, danger, or retribution suffici ent to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have be en performed, or acquiesce in an act to which one otherwis e would not have submitted. The total circumstances, including the age of the vic tim, and his or her relationship to the defendant, are factors to consider in apprai sing the existence of duress.” (§ 261, subd. (b).) Other pertinent factors include threats to harm the victim, physically controlling the victim, and warning the victim that rev ealing the molestation would jeopardize the family. ( People v. Cochran (2002) 103 Cal. App.4th 8, 14 ( Cochran ).) That an appellant
does not use force or overt threats does no t prevent a finding of duress because the victim’s testimony should be considered in light of her age and relationship to the appellant. ( Ibid. ) Appellant claims duress is determined under an objective standard based on the appellant’s wrongful act, not the victim’s response to it. ( People v. Soto (2011) 51 Cal.4th 229, 246 ( Soto ) [holding the victim’s consent is not a defense to the crime of lewd acts on a child under age 14 under section 288 and has no effect when the lewd acts are committed by force, violence, duress, mena ce, or fear].) The People argue that the objective test only applies to violations of sec tion 288 and not to viol ations of section 269 as charged here, because sect ion 269 contains the language against the victim’s will allowing for the court to look at the victim’s response. We need not resolve this issue because, as detailed below, there was suffici ent evidence appellant’s actions created a17 “‘direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce” Doe to acquiesce to his sexual demands and that she did so out of “fear” and for her “safety.” ( Soto, supra, at p. 246 [the jury could find duress without overt threats based on the “inherent imbalance of power in an encounter between a child and an adult bent on sexual conduct”].) Appellant relies on People v. Espinoza and People v. Hecker
, where two courts
concluded fathers’ molestations of their daughters were not accomplished by duress. ( People v. Espinoza (2002) 95 Cal.App.4th 1287 ( Espinoza ); People v. Hecker (1990) 219 Cal.App.3d 1238 ( Hecker ).) In Espinoza , defendant molested his daughter on multiple occasions. The daughter was “‘too sc ared to do anything’” and she was afraid defendant “‘would do something’” if she reported what happened. ( Espinoza , supra , at p. 1293.) The court, relying on Hecker , held that the daughter’s fear, without more, did
not establish duress. In Hecker
, the court found no duress wher e a stepfather molested his 13-year-old stepdaughter an d told her not to reveal the molestations because it would hurt his marriage and career. ( Hecker, supra, 219 Cal.App.3d at p. 1242.) The victim admitted she was not afraid stepfather would harm her but she felt “‘pressured psychologically.’” ( Id. at p. 1250.) The Hecker court held that psychological coercion without more does not establish duress. ( Id. at pp. 1250-1251.) This argument that “‘[p]sychological co ercion’ without more does not establish duress’” has been rejected by several courts. 5 In the context of a family member with a young victim the “very nature of duress is psychological coercion.” ( Cochran, supra, 103 Cal.App.4th at p. 15; People v. Senior (1992) 3 Cal.App. 4th 765, 775 [“duress involves psychological coercion”]; People v. Superior Court ( Kneip ) (1990) 219 Cal.App.3d 235, 238 ( Kneip ) [psychological coercion can amount to duress].)
This case is more akin to Cochran , where the court found sufficient evidence of
duress where a father was convicted of forc ible lewd conduct on his nine-year-old daughter. ( Cochran, supra, 103 Cal.App.4th at p. 12.) The daughter testified she was not

5 In Cochran , the Fourth District, which decided Hecker , disapproved of this language, finding it “overly broad.” (See Cochran, supra, 103 Cal.App.4th at p. 15.)18 afraid of her father but her father told her not to tell anyone because he would get into trouble and go to jail. ( Ibid .) The court noted that even th ough the defendan t did not beat or punish her, he still coerced her in to performing the various sex acts. ( Id. at p. 15.)
Cochran held the daughter was a “vulnerable and isolated child who engaged in sex acts only in response to her father’s pare ntal and physical authority.” ( Ibid .) Given the age
and size difference between defendant and the victim, their father-daughter relationship, and the implicit threat that she would break up the family if she did not comply, there was sufficient evidence of duress. ( Id. at p. 16; see also People v. Senior
, supra , 3 Cal.App.4th at p. 775 [finding duress where a father molest ed his 14-year-old daughter
because the defendant was the vi ctim’s father and an author ity figure to he r; defendant threatened to hit her; and he told her that if she did not s ubmit to the molestation that it could result in a divorce, thus je opardizing the family unit].)
In People v. Veale , the court held there was suffi cient evidence of duress where the defendant molested his seven-year-old stepdaughter. ( People v. Veale (2008) 160 Cal.App.4th 40 ( Veale ).) The stepdaughter testified that although defendant never threatened her, she was afraid to tell her mother because defendant might hurt her or do something to her mother. ( Id. at pp. 44-45.) She stated the defendant did not threaten her or use physical force and that on one occas ion, when defendant asked her to put her mouth on his penis, she got mad and threw clothes around the room. ( Id. at p. 46.) The court found that although defendant never th reatened the stepdaughter, numerous factors
established duress: defendant was an author ity figure in the ho me; the stepdaughter feared defendant might harm her or her mo ther; the stepdaughter’s young age; and the difference in size between defendant and the stepdaughter. ( Id. at p. 47.)
The factors identified in Cochran and Veale are present here. The abuse began when Doe was very young , only six years old, and conti nued until appellant was arrested when she was 16 years old. Appellant was Do e’s father and an auth ority figure in the home. When Doe testified why she acquies ced to her father’s abuse, she stated: “Because he was supposed to be my dad, and he told me to do it. If you don’t do something your dad tells you to do, usually you get in troubl e for it.” She described her19 father as a disciplinarian and sa id that to discipline her, he would give her a time out, take something away, or spank her. Appellant argues there was no evidence of any negative consequences when Doe refused to submit to her father’s requests. But this does not disprove duress. (See Veale,

supra , 160 Cal.App.4th at pp. 44-45.) Appellant exercise d authority and power over Doe and could discipline her. (See Kneip, supra, 219 Cal.App.3d at p. 239 [where the defendant is a family member and the victim is young, “t he position of dominance and authority of the defendant and his continuous exploitation of the victim” is relevant to establishing duress]; see also Cochran, supra, 103 Cal.App.4th at p. 15 [finding duress
where the victim was a “vulnerable and isolat ed child who engaged in sex acts only in response to her father’s pare ntal and physical authority” ].) Doe testified she complied with his requests so she would not be di sciplined and because she was “afraid.” There was a substantial age difference between Doe and her father. When the abuse began Doe was 6 and appellant was 41 year s old. There was also a size difference. Doe was an “average” size child and appellantwas 5’8” tall and weighed approximately 150 to 160 pounds when Doe was a child. Th e age of the victim and her relationship to appellant are factors to be considered in appraising the existence of duress. (See People
v. Pitmon (1985) 170 Cal.App.3d 38, 51 [“We note th at at the time of the offenses, [the victim] was eight years old, an age at whic h adults are commonly viewed as authority figures. The disparity in physical size betw een an eight-year-old and an adult also contributes to a youngster’s sense of his relative physical vulnerability.”].) Doe believed that disclosing the abuse would jeopardize her family. Like the
victim in Cochran , Doe testified appellant told her it was their “little secret” and asked her to promise not to tell anyone. “A si mple warning to a ch ild not to report a molestation reasonably implies th e child should not otherwise protest or resist the sexual imposition.” ( People v. Senior
, supra , 3 Cal.App.4th at p. 775.) Doe testified if she told anyone, she would get in trouble. Doe’s pa rticipation was motivated by “fear” and she described it as a “matter of safety.” She was afraid to tell anyone because “ I didn’t know what [appellant] could ha ve done.” She said, “I was scared out of my mind that he would20 murder my mother if she foun d out. I was also worried he would beat me.” Both Doe and her mother testified to appellant’s a ngry and physical res ponse when Doe began a sexual relationship with her boyfriend. Doe’s mo ther testified that appellant “was really, really scary angry. I mean, I thought he was gonna hurt her.” She testified that appellant was “hitting [Doe].” Doe testified that appe llant expressed his anger by “rap[ing]” her. The evidence amply supports a finding of duress. Doe was abused by her father, an authority figure in the home, beginning at the age of si x. When a victim is young and is molested by her father in the family home, “in all but the rarest cases duress will be present.” ( Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6 .) We conclude that given the father-daughter relationship, appellant’s positi on of authority in the family, the difference in age and size between appellant and Doe, appellant’s instruction to keep the abuse a secret, and Doe’s testimony about her ongoing fear, there is su fficient evidence to support appellant’s convictions on all counts. III. Doe’s Psychiatric Records Appellant requests this court review the sealed records from Doe’s therapy
sessions to determine if the trial court rule d correctly there was no discoverable material
that needed to be disclo sed to the defense. Before trial, defense counsel subpoenaed Doe’s records from her therapy sessions following the 2009 sexual assault by a strange r. The packet of psychiatric records was reviewed by a judge be fore the preliminary hearing. The prosecution requested the trial judge review the records to de termine if there was any disc overable material. Defense counsel asked that the court disclose any impeaching or potentially exculpatory material
under Brady v. Maryland
, supra , 373 U.S. 83. The court revi ewed the records in camera and stated: “there is nothing in the records I see as Brady ” and nothing that would preclude defense counsel from as king Doe about whether she di sclosed her father’s abuse to her therapist. The court held a further hearing to dete rmine if defense counsel could question Doe about whether she specifically told the psychotherapist about abuse by her father. The court reiterated its finding: “I d on’t find that the record s are essential to the21 defendant’s right to confrontation as it is now presented . . . [¶] I am ruling that the
records won’t be disclosed.” An appellate court’s role is to review the confidential records that were not disclosed by the trial court “to determine wh ether they were material and should have been disclosed.” ( People v. Martinez (2009) 47 Cal.4th 399, 453.) We have reviewed Doe’s sealed therapy records in camera a nd conclude the undisc losed information was
not material to defense and the trial court did not err in denying disclosure.
DISPOSITION The judgment is affirmed.22 _____________ ____________ Jones, P.J.

We concur:

_____________ ____________ Needham, J.

_____________ ____________ Bruiniers, J.