NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

MILLER, J.

A jury found appellant and defendant Joycelyn Denise Winters guilty of permitting a child in her care to be injured or permitting the child to be placed in a situation where the child was endangered. (Pen. Code, § 273a, subd. (a).)1 A jury found true the enhancement allegation that defendant had custody of the victim, and that the injury resulted in the victim's death. (§ 12022.95.) The trial court granted defendant four years of formal probation, with the condition she serve one year in the custody of the Riverside County Sheriff.2 Defendant raises four contentions on appeal. First, defendant asserts there is not substantial evidence supporting her conviction. Second, defendant contends the trial court engaged in multiple instances of judicial misconduct by commenting on the evidence, commenting on the credibility of witnesses, exhibiting hostility towards the defense, and improperly intervening on behalf of the prosecution. Third, defendant contends the trial court erred by permitting the prosecution to present evidence defendant was the victim's foster parent. Fourth, defendant asserts the trial court erred by insisting that an unidentified boy be referred to by the victim's name. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. FACTS AND PROCEDURE

1. FACTS

The victim in this case was Tayvin. At the time of the incident at issue—a drowning—defendant was Tayvin's foster mother. Tayvin was born in August 2002, and was four years old on June 30, 2007, which is the day of the drowning.

Prior to June 30, 2007, Tayvin had told defendant that he had been wanting to go swimming. Swimming was the only thing Tayvin had wanted to do that summer. Defendant believed that Tayvin did not know how to swim, so in the days prior to June 30, 2007, defendant told Tayvin that she would take him to the YWCA for swimming lessons.

On the date in question, Valerie hosted a family reunion party at her home in Moreno Valley. Valerie mailed fliers for the reunion party to approximately 150 relatives. Valerie's home is located on a lot that is approximately seven acres. For the children at the party, Valerie rented a dunk tank, a train ride, four jumpers or bounce houses, and various games, including water activities. There was also a pool on Valerie's property, which is partly enclosed by a cinderblock wall and partly enclosed by a chain link fence, ultimately making the pool fully enclosed. There was not a lifeguard at the pool on the day of the party. Valerie hired a DJ and rented a canopy; the party was spread out over a two-acre area, but most of the people were under the canopy. It was not possible to see the pool from the canopy area. Approximately 50 to 150 people attended the party.

Defendant lived in Los Angeles, and travelled to Moreno Valley for the party. Defendant attended the party with Tayvin; her biological son, Tonnill, who was seven years old; her daughter, who was 18 years old; another foster child, who was seven months old; her sister, Paulette; and her sister's two daughters, who were three and 12. In the car, on the way to the party, defendant instructed Tayvin not to go into the pool or not to go swimming.

Markus, who attended the party with his mother, sisters, aunt, and cousins, arrived at the party around noon. Markus was swimming in the pool for the majority of the party. Markus witnessed his "little cousin," a boy, fall into the water. Markus's cousin was rescued by Markus's aunt. Markus could not recall his cousins' names. Markus testified that he noticed "[t]he individual that drowned" because when the individual initially jumped into the pool, he almost jumped onto Markus. Markus stated that the individual who almost jumped on him was not a person who he had seen before. Markus recalled the incident of the individual nearly jumping on him occurring between 12:30 p.m. and 1:30 p.m. Markus described the individual who almost jumped on him as wearing "a whole bunch of floats," such as arm floats and a life vest. Markus saw the individual using the diving board and jumping in and out of the pool for a "couple hours."

Defendant and Tayvin arrived at the party at approximately 2:00 p.m. Upon arriving, the children were excited and began running around the property looking at the various games and activities. Defendant and her sister sat at a table talking to other adults. It was not possible to see the pool from where defendant was sitting. Defendant instructed her children to check-in with her every 30 minutes while at the party. Defendant had Tayvin and Tonnill take a time-out shortly after arriving at the party, because the boys were so excited by the various games and activities.

While at the party, Tayvin changed from his clothes into swim trunks. Tayvin asked defendant if he could go into the swimming pool. Defendant told Tayvin he could not go swimming, because he did not know how to swim; however, defendant told Tayvin he could play at one of the activities that involved ducks, which would allow him to get wet.

Paulette took Tayvin to the pool deck, despite defendant's wishes that Tayvin not be in the pool area. Paulette explained she took Tayvin to the pool to prevent him from going by himself. While on the pool deck, Paulette sat at a table, and Tayvin sat next to her watching the children play. Paulette did not allow Tayvin to go into the water. Tayvin was very excited watching the children on the rafts and playing with various inflatable toys. Tayvin said to Paulette, "Ooh, I want to do that," referring to the rafts. After one or two hours, Paulette and Tayvin left the pool area.

Defendant spent the majority of the time in the front of the house, where there was shade. Tayvin checked-in with defendant approximately three times during the day. He was wet when he checked-in with defendant, but she believed that was due to Tayvin playing the duck game.

Helen, an adult, was at the party helping with the cooking. During the day, Helen took breaks from cooking, and took pictures of people at the party. During the party, Helen saw a boy she believed was Tayvin's twin brother, because the boy looked nearly identical to Tayvin, and both boys were wearing blue swimming trunks. Helen took a picture of the two boys together, because she thought a photograph of twins "was kind of cute." After the party, Helen realized Tayvin and the other boy were not twins, and she said she could distinguish Tayvin from the other boy.

In addition to taking photographs, Helen intermittingly left the kitchen to check on her daughter and granddaughter, who were in the pool. When Helen was in the pool deck area, she saw Tayvin in the shallow end of the pool. Tayvin was wearing various flotation devices in the pool. A small girl walked up to Helen, crying, and said she wanted to use the flotation devices. Helen asked Tayvin if he would share the flotation devices. Tayvin agreed to share; he removed the flotation devices, and gave them to the crying girl.

Approximately 20 to 30 minutes after Helen asked Tayvin to share his flotation devices, a boy, who was approximately seven years old, told Helen, "There's a little boy down there." Helen's daughter said, "Well, go get him." The boy jumped into the pool and pulled Tayvin to the surface of the water. Helen pulled Tayvin out of the water; she looked at Tayvin's eyes and saw that they were gray. Helen started performing CPR on Tayvin. A nurse, who was a guest at the party, took over CPR duties from Helen. A 911 call on behalf of Tayvin was made at 4:29 p.m. Paramedics came to the house, and Tayvin was taken to the hospital. Tayvin died on June 30, 2007, as a result of drowning. Christopher, an aquatic director for the YMCA, testified a "silent drowning" can occur with children, because they do not understand they are in trouble, so they do not instinctively splash, yell, or flail prior to drowning. A blood sample taken from defendant on June 30, 2007, showed there were no drugs or alcohol in her system.

2. CLOSING ARGUMENTS

The prosecutor argued that Tayvin was five years old,3 did not know how to swim, was excited about swimming, changed into his swim trunks, and left the defendant's sight. The prosecutor asserted defendant should have been supervising Tayvin. The prosecutor asserted that if defendant had walked over to the pool "just once" during the day, then she would have seen that Tayvin was playing in the pool. The prosecutor asserted defendant acted recklessly in leaving Tayvin unsupervised because she knew (1) Tayvin was five years old; (2) Tayvin could not swim; (3) there was a pool at the house; and (4) Tayvin was excited about swimming. The prosecutor argued defendant's lack of supervision placed Tayvin in a dangerous situation.

Defense counsel argued defendant and Tayvin arrived at the party at approximately 2:00 p.m. Tayvin spent 20 minutes in time-out, he spent one or two hours being supervised by defendant's sister at the party, and Tayvin checked-in with defendant three times during the party. Defense counsel then pointed out the 911 call was made at 4:29 p.m., which meant defendant and Tayvin were only at the party for two and a half hours. Defense counsel argued defendant did not act with a disregard for human life, because she knew where Tayvin was for most of the two and a half hours that they were at the party.

Defense counsel implied that the boy jumping off the diving board during the day was not Tayvin; rather, it was the boy that looked like Tayvin. Defense counsel argued the boy Helen took floaties from was also not Tayvin; rather, it was the boy Helen believed was Tayvin's twin. Defense counsel pointed out the discrepancies in the witnesses' testimonies, such as one witness who said Tayvin was only playing in the shallow end of the pool, another witness who said Tayvin was only playing in the deep end of the pool, and other witnesses who said they never saw Tayvin in the pool. Defense counsel implied the evidence did not meet the reasonable doubt standard of proof.

3. PROCEDURAL DETAILS

We now present some of the procedural details of the case. Markus was the second witness called by the prosecution. While Markus was testifying, defense counsel asked if "a boy" was standing near the pool in an area where teenagers were roughhousing, and Markus replied, "Yes." The following exchange then took place:

During redirect examination, in regard to the use of the terms "the victim" and "the boy" the following exchange took place:

As the redirect examination continued, the trial court remarked that the prosecutor and defense counsel were "failing to gather information for lack of precise questions." The prosecutor asked Markus if "the boy" being referred to during Markus's cross-examination was the "the victim." Markus stated he assumed "the boy" referred to the "the victim."

The prosecutor said to Markus that defense counsel "didn't want to use the word victim," and defense counsel objected. Defense counsel requested the prosecutor's comment be stricken and that the trial court admonish the jury. The trial court responded, "Actually, if my memory serves me, this child has a name. And if you want to be precise, you should use his name. [¶] . . . [¶] . . . Not victim, a boy, or the boy."

Defense counsel requested the trial court rule on her motion. The trial court said, "I'm not ruling on it. I'm directing both of you to be precise and honor the young man with his name, not the boy, a boy, or victim, please. [¶] Is that okay with you folks?" The jurors said, "Yes." The trial court then went on to say, "They feel the same way I do. He's a young man, he's deceased, and he has a name." The prosecutor pointed out Markus did not know Tayvin's name. The trial court said, "We're going to tell him what his name is."

As the redirect examination continued, the prosecutor asked Markus if he knew the name of "the boy who drowned, the victim." Markus responded, "No." The prosecutor said, "All right. It's Tayvin Clark. And from this point forward, I'm going to ask you . . . about Tayvin Clark. That's who I'm referring to, the victim, the boy who drowned, okay?"

When Markus's sister, Shaquitta, testified, the prosecutor showed her a picture of Tayvin. The prosecutor asked if Shaquitta recognized the boy in the photograph, and Shaquitta responded, "No." The prosecutor told Shaquitta he would be referring to "the boy who drowned" as Tayvin Clark.

When Helen, the adult who pulled Tayvin from the pool, was testifying, the prosecutor showed Helen a photograph of Tayvin. The prosecutor asked if Helen recognized the boy in the photograph. Helen responded, "No." During Helen's direct examination, the prosecutor asked her about "the boy." For example, the prosecutor asked, "So you saw the boy with the floaties on in the water only for a couple of seconds, you said; correct?" Helen responded, "Yes." The prosecutor asked the name of the boy with the floaties. Helen said she did not know the boy's name. Ultimately, Helen testified the boy from whom she took the floaties, was the same boy upon whom she performed CPR.

DISCUSSION

A. SUBSTANTIAL EVIDENCE

Defendant contends substantial evidence does not support the finding that she was criminally negligent. We disagree.

We review the record for substantial evidence. "Under this standard, we review the whole record `in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] If the circumstances reasonably justify the finding, we cannot reverse merely because a contrary finding might also be reasonably deduced from the circumstances. [Citation.] We will reverse only if it `clearly appear[s] that upon no hypothesis . . . is there sufficient substantial evidence to support [the judgment].' [Citation.]" (People v. Dyke (2009) 172 Cal.App.4th 1377, 1381-1382.)

"Section 273a encompasses a wide variety of situations and includes both direct and indirect conduct. [Citations.] When the harm to a child is directly inflicted, the requisite mental state for the section 273a offense is general criminal intent. [Citations.] When that harm is indirectly inflicted, the requisite mental state is criminal negligence. [Citations.] Criminal negligence is aggravated, culpable, gross or reckless conduct that is such a departure from that of the ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life. [Citation.] A defendant may be deemed to be criminally negligent if a reasonable person in [her] position would have been aware of the risk. [Citation.]" (People v. Burton (2006) 143 Cal.App.4th 447, 454.)

Defendant knew Tayvin was four years old, and he was excited about swimming. Defendant believed Tayvin did not know how to swim. As a result of this evidence, a jury could reasonably expect defendant would supervise Tayvin if he were to be near a pool, because he was not an experienced swimmer, but very much wanted to swim, and was likely not old enough to know he should not attempt to swim on his own.

The evidence reflects that, at the party, defendant spent a majority of the party in an area where she could not see the pool, while Tayvin was free to explore the party. The jury could infer from Helen's description of Tayvin—that he was wearing multiple flotation devices—that Tayvin was the same boy wearing flotation devices that Markus had seen in the pool for hours. Helen saw Tayvin in the pool approximately 30 minutes before he drowned. Based upon this evidence the jury could reasonably conclude Tayvin had been in the pool for 30 minutes to two hours, without defendant supervising him. As a result, the jury could conclude, based upon the evidence, that defendant's conduct was a departure from that of an ordinarily prudent person, because a prudent person would have supervised Tayvin when he was around a pool, and defendant did not provide such supervision. In sum, substantial evidence supports defendant's conviction.

Defendant contends the evidence supporting her conviction does not meet the substantial evidence standard because the prosecution was unable to provide a positive identification of Tayvin as the boy Markus said was in the pool for hours. We agree there was not a direct identification of Tayvin as the boy who Markus saw in the pool for hours. Nevertheless, Markus described the boy as wearing multiple flotation devices. Helen ultimately described Tayvin as the boy she saw in the pool wearing multiple flotation devices. The jury could infer Helen and Markus were referring to the same boy—Tayvin. Accordingly, we are not persuaded the lack of a direct identification equates with a lack of substantial evidence.

Next, defendant points out Helen was unable to positively identify Tayvin from his school picture. Defendant argues Helen's inability to identify Tayvin means the boy Helen saw in the pool wearing flotation devices likely was not Tayvin. Defendant's argument is problematic, because when this court reviews a record for substantial evidence we cannot reverse merely because a contrary finding might also be reasonably deduced from the evidence. (People v. Dyke, supra, 172 Cal.App.4th at pp. 1381-1382.) While Helen could not identify Tayvin from his school picture, she testified the boy she took the flotation devices from—the boy she had seen in the pool—was Tayvin. Accordingly, while the record supports defendant's position, it also supports the jury's verdict, because Helen ultimately did identify Tayvin as the boy she saw in the pool. Since the record supports the jury's verdict, we do not find defendant's argument to be persuasive.

B. JUDICIAL MISCONDUCT

1. CONTENTION

Defendant contends the trial court committed numerous acts of judicial misconduct. Defendant cites four different acts of alleged misconduct: (1) the trial court's insistence that witnesses refer to "the boy" as Tayvin despite a lack of evidence that the witnesses were actually referring to Tayvin; (2) the trial court calling defense counsel "inartful," and denying defense counsel an opportunity to clarify a point that confused the jury; (3) the trial court's limitation of defense counsel's cross-examination of defendant's sister, Paulette, the trial court's bias towards the prosecution, the trial court's disparagement of defense counsel, and the trial court's improper comments on the credibility of witnesses; and (4) the trial court's improper summary of the evidence. While we believe the trial court made some aspects of the trial unnecessarily complicated, we do not agree the trial court committed judicial misconduct.

2. FORFEITURE

Before addressing the merits of defendant's arguments, we address the People's contention that defendant forfeited the issue of judicial misconduct by failing to object in the trial court.

"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 objecting would be futile. [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm).)

Defendant asserts she did not forfeit the judicial misconduct issues because objecting would have been futile. Defendant points out that when she objected to the prosecutor's comment that the defense did not want to use the word "victim," the trial court refused to rule on the objection. We address the merits of defendant's contentions, rather than analyze this procedural issue, in order to forestall a potential claim of ineffective assistance of counsel.

3. BACKGROUND LAW

"`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 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]" (Sturm, supra, 37 Cal.4th at p. 1237.)

"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[s] from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge."' [Citation.]" (Sturm, supra, 37 Cal.4th at pp. 1237-1238.)

4. STANDARD OF REVIEW

"As a general matter, an appellate court reviews a trial court's ruling on judicial misconduct for abuse of discretion. [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 237, fn. 35.) Although the matter of judicial misconduct was not raised at the trial court, we will review the matter as though it were raised, and the trial judge concluded he did not commit judicial misconduct.

5. REQUIRING THE USE OF THE VICTIM'S NAME

Defendant contends the trial court committed judicial misconduct by insisting the attorneys and witnesses use Tayvin's name, despite the lack of evidence that the witnesses were referring to Tayvin. We disagree.

As set forth ante (Factual & Procedural History, section A.1.), when Markus was testifying there was confusion regarding who exactly Markus and the attorneys were referring to as "the boy." The trial court instructed the attorneys to use Tayvin, the victim's name, in order to make their questions more precise. The prosecutor informed the trial court that Markus did not know Tayvin's name. The trial court responded, "We're going to tell him what his name is."

The trial court's requirement that the attorneys use Tayvin's name was designed to assist the attorneys with their examination of the witnesses. The attorneys' use of "the boy" was problematic, because it was unclear if the attorneys were referring to (1) Tayvin; (2) the boy who looked like Tayvin; (3) the boy who fell into the pool, but was rescued and lived; or (4) another unidentified boy. The trial court's direction to use the name Tayvin did not require that the witnesses use the name incorrectly, such that the witnesses had to say "Tayvin" even if they were referring to a child that was not Tayvin. Further, the attorneys were free to question the witnesses regarding which child was doing what acts during the party. Therefore, if the prosecutor or defense counsel felt that a witness did not understand who Tayvin was, then the attorney could have questioned the witness to determine if the witness had an understanding of the fact that Tayvin was the boy who died. In sum, the trial court did not commit misconduct by requiring the attorneys to use Tayvin's name when asking questions about Tayvin, because the requirement helped to limit the attorneys to presenting only relevant evidence, as opposed to evidence about an unknown, irrelevant boy. (§ 1044.) As a result, we conclude the trial court did not abuse its discretion.

Defendant asserts the trial court committed misconduct because the trial court required the attorneys to ask the witnesses what they saw Tayvin do, despite a lack of evidence that any of the witnesses could identify Tayvin. The flaw in this argument is that the attorneys were free to question the witnesses regarding exactly which boy they were referring to when testifying. If the witnesses were not actually speaking about Tayvin, then the witnesses should have been questioned about that possibility. For example: "Is it your understanding that Tayvin, who died as a result of drowning at the party, was the child you saw wearing the various flotation devices?" In other words, the trial court did not control the evidence, or create a presumption that the boy Markus saw in the pool for hours was Tayvin, because the attorneys were free to question the witnesses about their recollections.

6. DISPARAGING COUNSEL AND LIMITING CROSS-EXAMINATION

a) Facts

After the trial court instructed the attorneys to use Tayvin's name when examining the witnesses, the trial court took a lunch recess. When the court reconvened, a juror said, "May I make a request for the future that they refer to the water and the pool deck so that we can be clear on what the heck they're talking about, because it's been really confusing the first half of this." The juror explained, "The concrete area around the pool is commonly known as the pool deck. If we can refer to it as that way. Then we know what they're talking about when they're not in the pool or—." The trial court responded that if the lawyers did not ask appropriate questions, then the jury would be "left with a quandary" and "that's just part of the way life is."

The prosecutor then resumed his redirect examination of Markus. During the redirect examination, the following exchange occurred:

b) Analysis

(1) Disparaging Comment

Defendant contends the trial court committed misconduct by (1) commenting that both trial attorneys had been inartful, and (2) not allowing counsel to clarify the "pool versus pool deck" issue that confused the jury.

As set forth ante, "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.]" (Sturm, supra, 37 Cal.4th at pp. 1237-1238.)

The trial court's comment about counsel being inartful was directed at the prosecution and presumably defense counsel. Because the trial court accused both parties of being inartful, there is nothing suggesting the trial court was lending its influence to the prosecution. In regard to this comment, both sides were treated equally by the trial court. As a result, we conclude the trial court did not commit misconduct. Therefore, the trial court did not abuse its discretion.

(2) Limiting Cross-examination

Next, in regard to limiting cross-examination, the trial court instructed defense counsel to limit recross-examination to the scope of the prosecution's redirect examination.

"A witness once examined cannot be reexamined as to the same matter without leave of the court . . . . Leave may be granted or withheld in the court's discretion." (Evid. Code, § 774.) This rule "applies to direct, cross-, redirect, and recross-examinations." (People v. Tafoya (2007) 42 Cal.4th 147, 175.)

On direct examination, the prosecutor asked Markus, "How long was it that you saw the victim from the first moment you saw him in the pool until the moment when he left, approximately?" Markus responded, "It was a couple of hours." On redirect examination, the prosecutor asked Markus, "So what I'd like for you to give me is approximately the total time that you saw Tayvin in the pool." The trial court reminded counsel he had already asked Markus that question on direct examination. The prosecutor did not ask for leave to reexamine Markus as to the same issue; therefore, the trial court did not err by stopping the prosecutor from reexamining Markus as to issues he had already addressed on direct.

When defense counsel sought to recross Markus, the trial court told defense counsel she could not "start over" with her cross-examination. Defense counsel also did not ask for leave to requestion Markus regarding issues that were addressed on cross-examination. Accordingly, the trial court did not err by limiting the cross-examination, because defense counsel did not ask for leave to requestion Markus about issues raised in the initial examination of the witness. In sum, the trial court did not commit misconduct, and therefore, did not abuse its discretion.

7. BIAS IN FAVOR OF THE PROSECUTION

a) Contention

Defendant contends the trial court committed a variety of acts that showed favoritism towards the prosecution, such as limiting the defense's cross-examination of Paulette, while giving the prosecution leeway and assistance in questioning witnesses. We disagree.

b) Facts: Cross-examination and Veracity

(1) Limiting Cross-examination: Paulette

During the cross-examination of defendant's sister, Paulette, defense counsel asked if Paulette was ever interviewed by police officers. Paulette responded, "Not that I recall, no." The following exchange then occurred:

Towards the end of Paulette's testimony, defense counsel asked Paulette, "Are you telling us the truth today?" Paulette responded, "Yes." The court then said, "Come on, Counsel, that's an inappropriate question."

(2) Alleged Leeway for the Prosecution: Shaquitta

During the direct examination of Markus's sister, Shaquitta, the prosecutor asked Shaquitta if she saw a person drown at the family reunion, and Shaquitta responded, "No." The prosecutor asked if Shaquitta ever saw a boy who was injured at the party, and Shaquitta said, "No." The prosecutor then asked Shaquitta if she recalled telling the police she saw the victim in the pool earlier in the day. Shaquitta responded, "No." The prosecutor then asked if Shaquitta was saying that she did not recall, or that she never told the police she saw the victim. Shaquitta stated that her answer meant she did not remember. The prosecutor then used the police report to refresh Shaquitta's recollection. During the examination, the prosecutor asked Shaquitta if she had any reason to lie to the police. Shaquitta said, "No."

c) Analysis: Cross-examination and Veracity

Defendant contends the trial court showed bias in favor of the prosecution. Specifically, defendant argues, "The court did not limit the prosecutor's inquiry and did not tell the prosecutor that these questions were inappropriate." We disagree that the trial court committed misconduct.

We start by addressing the alleged limiting of the cross-examination of Paulette. When Paulette told defense counsel she did not recall being interviewed by police officers, defense counsel asked an identical question in a more detailed manner. When the trial court rejected defense counsel's attempt to refresh the witness's recollection with a leading question, defense counsel could have used the police report to refresh the witness's recollection. Defense counsel's decision to move on to another topic was a choice by defense counsel. It does not reflect that the trial court favored the prosecution.

Next, in regard to asking the witnesses about their veracity, the prosecutor was confronted with a witness who did not recall the details of the event about which she was called to testify. The prosecutor relied on Shaquitta's statements to the police for evidence that she saw Tayvin in the pool. Since Shaquitta was relying on past statements for much of her testimony, it would make sense for the prosecutor to ask if she had been honest when speaking to the police, so as to ensure Shaquitta's testimony, which was derived from those prior statements, was accurate.

On the other hand, defense counsel asked Paulette if she were testifying truthfully, but there seemed to be no apparent reason for the question, except to cast Paulette and/or the prosecution in a poor light. There was no specific inconsistency that defense counsel pointed out in Paulette's testimony when asking the question. Further, defense counsel's question was framed quite differently than the prosecutor's question to Shaquitta. While defense counsel bluntly asked Paulette if she were testifying truthfully, the prosecutor did not ask Shaquitta if she lied to police, rather the prosecutor asked if Shaquitta would have had a reason to lie.

In sum, the honesty question asked by defense counsel was significantly different than the honesty question asked by the prosecutor. Therefore, the trial court's decision to not interrupt the prosecution does not show the court favored the prosecution. As a result, we conclude there was not misconduct, and the trial court did not abuse its discretion. (See People v. McWhorter (2009) 47 Cal.4th 318, 373-374 [trial court calling counsel's question to juror "unfair" not misconduct].)

d) Facts: Favoritism

(1) Cross-examination of Shaquitta

During the cross-examination of Shaquitta, the following exchange occurred:

(2) Redirect Examination of Shaquitta

After the completion of Shaquitta's cross-examination, the trial court asked the prosecutor if he wanted "to make another run at getting something important" from Shaquitta. The court said that it would give the prosecutor "a little latitude" due to the police officer not having asked Shaquitta "very good questions" during the investigation, which led to problems in the initial examination of Shaquitta. The trial court said to defense counsel, "I'll give you any latitude on recross if you like." Defense counsel responded, "Thank you."

As the redirect examination progressed, the prosecutor asked Shaquitta about seeing Tayvin when he was pulled out of the pool. The following exchange then occurred:

As the redirect examination progressed, Shaquitta explained that there was only one boy in the pool who she did not know, and that was the boy who was jumping in and out of the pool. The following dialogue then occurred:

(3) Recross of Shaquitta

During the recross-examination of Shaquitta the following dialogue took place:

(4) Instruction

At the end of Shaquitta's testimony, the trial court spontaneously instructed the jury not to "automatically reject testimony just because of inconsistencies or conflicts [and to c]onsider whether the differences are important or not."

e) Analysis: Favoritism

Although defendant provides a detailed accounting of the foregoing procedural history, defendant provides little to no explanation of how the trial court's statements constitute misconduct. Nevertheless, we will infer that defendant is asserting the trial court's comments reflect that it favored the prosecution.

It appears from the trial court's statements that it was not favoring either the prosecution or the defense, because it gave latitude to both the prosecution and defense when they were questioning Shaquitta, and the trial court interrupted the prosecution and the defense equally. While the defense may not have appreciated the trial court's comments and interruptions, there is nothing indicating the trial court's comments favored the prosecution, or that the trial court interrupted the prosecution less often than the defense. For example, the trial court made suggestions to help the defense, such as "if the kid who was jumping in and out wasn't the one who drowned, it's meaningless." In sum, we fail to see how the foregoing procedural history reflects the trial court was biased in favor of the prosecution. As a result, we conclude the trial court did not commit misconduct and therefore the trial court did not abuse its discretion.

f) Facts: Defense Investigator

The prosecutor called the defense investigator as a witness. During the redirect examination of the investigator, the following exchange occurred:

g) Analysis: Defense Investigator

Defendant contends the trial court committed misconduct by (1) argumentatively questioning the investigator, who was a witness for the prosecution; and (2) testifying as to what Shaquitta saw, e.g., the trial court asked if the investigator thought Shaquitta would approach a dead body; however, there was no evidence Tayvin was dead when he was pulled from the pool. Assuming, without deciding, that the trial court committed misconduct, we conclude any error was harmless.

We review the record to determine whether the trial court's questions and comments were harmless beyond a reasonable doubt. (People v. Bradford (2007) 154 Cal.App.4th 1390, 1417.)

We first address the trial court's questioning of the investigator. The trial court thoroughly questioned the investigator, who was a prosecution witness. The trial court questioned the investigator's failure to follow through with questioning what exactly Shaquitta saw; for example, whether she saw the face of the boy who was pulled from the pool. Ultimately, the trial court's questions caused the investigator to appear as though he did not do a detailed job of questioning Shaquitta, and the trial court instructed the investigator to be more precise in the future. The trial court's comments so thoroughly called into question the investigator's techniques, that when the trial court was finished, the prosecutor did not ask any more questions of his own witness. It appears from this record that the trial court's questions assisted the defense, because the trial court caused the investigator to appear unreliable, due to the investigator making multiple incorrect assumptions when questioning Shaquitta. As a result, we conclude the trial court's questioning of the investigator was harmless beyond a reasonable doubt, because it assisted the defense.

Next, we examine the trial court's "testimony" about Shaquitta not wanting to see a dead body. The parties stipulated that Tayvin drowned on June 30, 2007, and, in defense counsel's closing argument, defense counsel stated that Tayvin died. As a result, it appears there was no dispute that Tayvin ultimately died as a result of being in the pool. Therefore, we conclude the trial court's question, describing Tayvin as dead, was harmless, because the comment would not have affected an issue that needed to be decided by the jury—the parties agreed that Tayvin died.

h) Facts: Swimming Expert

The defendant called Christopher, the director of aquatics for the YMCA of Riverside City and County, as a witness. Christopher testified about drowning and water safety. During Christopher's testimony, the following dialogue took place:

i) Analysis: Swimming Expert

Defendant provides a detailed accounting of the foregoing procedural history. However, defendant does not explain how the trial court's question and comments amount to judicial misconduct. We will assume that defendant is asserting the trial court committed misconduct by disparaging defense counsel when the trial court said, "We're not smart enough to know what to ask you, okay."

"`It is completely improper for a judge to advise the jury of negative personal views concerning the competence . . . 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.]" (Sturm, supra, 37 Cal.4th at p. 1240.)

The trial court's comment implied that defense counsel, the court, and possibly the prosecutor were not intelligent enough to know what questions to ask the swimming expert. The trial court's comment did not single out defense counsel, or constitute a personal attack on defense counsel, as evinced by the use of the word "we're." The trial court's comment was perhaps a poor choice of words, but it does not constitute judicial misconduct.

j) Facts: Summary of the Evidence

Riverside County Sheriff's Deputy Deleon testified as a witness for the defense. Deputy Deleon testified he arrived at the house where Tayvin drowned at 4:38 p.m., in response to the 911 call. The following exchange occurred during the direct examination of Deputy Deleon:

Deputy Deleon stated that when he was conducting interviews, he "learned there were different accounts of how many children were swimming at the pool at the time of the accident." As Deputy Deleon testified, the prosecutor raised various hearsay objections. The trial court told the prosecutor to wait, because the follow-up questions would determine if the statements were being offered for the truth of the matters asserted. When defense counsel completed her examination of Deputy Deleon, the following dialogue occurred:

k) Analysis: Summary of the Evidence

Defendant contends the trial court erred by stating the evidence reflects that people make mistakes or honestly forget events, because there was no evidence of people making mistakes or forgetting events.

In commenting on the evidence a judge "`may not withdraw material evidence from the jury's consideration or distort the testimony.'" (People v. Gutierrez (2009) 45 Cal.4th 789, 822-823.)

Deputy Deleon testified that he received varying accounts as to how many people were on the pool deck area when the accident occurred. Since the witnesses' accounts varied as to how many people were present when Tayvin drowned, it can be inferred that (1) some of them forgot how many people were present; and/or (2) some of them were mistaken about how many people were present. Accordingly, we conclude the trial court did not distort Deputy Deleon's testimony, because the trial court's comment concerned a rational inference that could be drawn from the evidence. In sum, we find no error.

8. COMBINED EFFECT

Defendant contends the combined effect of the foregoing acts of alleged judicial misconduct caused defendant to be deprived of her constitutional rights of due process. As set forth ante, we have not found an act of judicial misconduct; therefore, we are not persuaded defendant was denied due process.

C. IMPROPER INSTRUCTION

Defendant contends the trial court instructing counsel, in front of the jury, to refer to the victim as "Tayvin," was tantamount to a jury instruction that removed a material factual finding from the jury by creating an impermissible evidentiary presumption. We disagree.

"`Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions.' [Citation.]" (People v. Cox (2000) 23 Cal.4th 665, 676.) The independent standard of review is applied when assessing whether a trial court's "instructions effectively direct[ed] a finding adverse to a defendant by removing an issue from the jury's consideration [citations]." (People v. Posey (2004) 32 Cal.4th 193, 218.)

The trial court directed the trial attorneys to be precise in their questioning because there were at least three possible boys being discussed during the witnesses' testimonies: (1) Tayvin, the victim; (2) the boy who looked like Tayvin; and (3) the boy who drowned in the pool, but survived. The trial court did not instruct the attorneys or the jury to speak about Tayvin regardless of which boy was being discussed; rather, the trial court instructed counsel to be clear when speaking about Tayvin, so the jurors would know for certain that counsel was asking about Tayvin and not the other two boys. The trial attorneys were still free to question the witnesses to determine exactly which boy they recalled seeing—the trial court did not bar the attorneys from questioning the witnesses' recollections. In sum, the trial court did not remove an issue from the jury's consideration or create an impermissible evidentiary presumption.

D. FOSTER PARENT EVIDENCE

1. FACTS

During motions in limine, defendant moved to exclude evidence that defendant was Tayvin's foster parent. Defendant argued that "many people have a negative view of foster parenting" and therefore the foster relationship was likely to inflame the jury. The prosecution opposed the motion. The trial court stated that foster parents are worthy of respect because they take children into their homes and care for them. The trial court then said, "I don't see this as a pejorative, but some people might." The trial court asked if defendant was legally a foster mother, and defense counsel responded "Yes." The court then said, "So once in [awhile] something sneaks into my court. She's a foster mother . . . . [¶] . . . [¶] That doesn't surprise people. So we know where we're headed."

During closing arguments, the prosecutor made the following statements: "[Defendant] took in foster children. That's wonderful. I wish more people in this country took in foster children. But with that comes a certain level of responsibility, ladies and gentlemen. And I'm not telling you anything that you don't already know. [Defendant] didn't go to the dog pound and pick up a dog or a hamster. She picked up a five-year-old child."

2. ANALYSIS

Defendant contends the trial court erred by permitting the prosecution to present evidence that defendant was Tayvin's foster parent, because the evidence was more prejudicial than probative. We disagree.

A "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) We review the trial court's ruling regarding excluding evidence under the abuse of discretion standard of review. (People v. Riggs (2008) 44 Cal.4th 248, 290.)

Defendant was charged with violating section 273a, which provides: "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished . . . ." (Italics added.)

The plain language of the statute provides that the defendant's relationship with the victim is an element of the offense. (§ 273a.) The jury was instructed that the prosecution needed to prove defendant had "care or custody" of Tayvin. Therefore, evidence of defendant's status as Tayvin's foster parent was relevant and necessary to prove defendant was legally responsible for Tayvin's care. If the trial court excluded evidence of the foster parent relationship, then this necessary element of the offense would have gone unproven.4 Since defendant's status as Tayvin's foster parent was a necessary element of the offense, we conclude its probative value outweighed any prejudicial effect.

DISPOSITION

The judgment is affirmed.

We concur:

HOLLENHORST, Acting P. J.

McKINSTER, J.