FYBEL, J.
Defendant Tooraj Aghmiyouni Nakhei was convicted of raping a woman he had briefly dated. Defendant raises several arguments on appeal; as explained in detail post, we reject his arguments and affirm.
First, defendant argues the trial court erred by failing to order a competency hearing for him, pursuant to Penal Code section 1368. Applying well-established authority, there was insufficient evidence before the trial court that defendant was not competent to stand trial. (People v. Lewis (2008) 43 Cal.4th 415 (Lewis).) The court therefore did not err.
Second, defendant argues his trial counsel provided ineffective assistance by failing to declare a doubt as to defendant's competence. Defendant fails to establish either that his trial counsel lacked a tactical reason for not declaring a doubt as to his competence, or that counsel's failure to do so prejudiced him.
Third, defendant argues the trial court committed misconduct by making disparaging remarks about him during trial. Having thoroughly reviewed the record, we conclude the trial court's remarks were not disparaging, but rather indicate the court's intent to control the trial. Even if the court had committed misconduct, it would have been cured, and any prejudice averted, by the court's repeated admonitions to the jury that it must not consider the court's remarks.
Finally, defendant argues the trial court erred by admitting evidence that defendant's family members apologized to the victim for the rape. Defendant forfeited any argument on this point by failing to object to the evidence in the trial court. Further, the evidence was elicited by defendant's counsel, and the invited error doctrine therefore bars defendant's argument on appeal.
The victim immigrated to the United States from Iran in 1988. She met defendant through a Persian Internet dating service. In 2003, defendant traveled to Orange County, California, from Oregon to meet the victim. They met for a drink, and had lunch together the next day. The victim told defendant she was not romantically interested in him. After defendant returned to Oregon, he continued to call and e-mail her.
In 2007, the victim sent an e-mail to defendant, wishing him a happy Persian New Year. Defendant again began e-mailing the victim, asking her to call him. When the victim called defendant in May 2007, he asked if he could come for another visit.
The victim met defendant for dinner at his hotel on May 24, 2007. At that time, defendant was 51 years old, and the victim was 42 years old. She was still not romantically interested in him. After dinner, she told defendant she was going home, but he insisted she come to his hotel room so he could give her the flowers he had been too embarrassed to bring to dinner.
The victim and defendant went to his hotel room, where they spoke for a few minutes. As the victim was preparing to leave, defendant grabbed her and threw her on the bed, and began undressing her. The victim cried and asked defendant to stop. Defendant, however, restrained the victim and raped her. He also orally copulated the victim, while she continued to struggle against him. The entire attack lasted about 30 minutes.
The victim left the hotel, and did not report the rape; the evidence showed that in the Iranian culture, being raped was shameful, and victims of rape are looked down on. When the victim returned home, she tried to act "normal" in front of her family members, and did not tell them what had happened. Later that night, the victim showed her sister the scratches and bruises on her body, and described what defendant had done.
On May 28, defendant wrote an e-mail to the victim, reading: "I really don't know what to write. I am a little disappointed with you. I am so sorry about first day and hoping you would forgive me. If I ever jumped on you, you have every right to break the friendship." On the following day, the victim responded to defendant's e-mail: "First of all, I won't forgive you for what you did to me. That was an animal attack. I trusted you. I was trying to give you a chance. But see, what you did to me, my eyes are open and, as a matter of fact, they are wide open to not trust [a] guy like you anymore. And you call that unconditional love. Bye." Defendant replied, "you are absolutely right. I was [a] stupid, selfish animal. And I hate myself as I am writing this e-mail." Defendant continued to send the victim e-mails, despite her request that he stay away and not contact her. Defendant also called and e-mailed the victim's sister; he called the sister 113 times between June 30, 2007 and October 10, 2008.
Defendant also made telephone calls to the victim's mother, and tried to get her mother to convince the victim to change her mind about dating him. The victim did not tell her mother about the rape, but asked her not to talk to defendant because he was "not a good man."
Defendant continued to call and e-mail the victim between May 2007 and October 2008, although she repeatedly told him she was not interested and asked him to stop contacting her. He also appeared unannounced and uninvited at the victim's office and home. In June 2007, defendant told the victim he had hired a private investigator to obtain all of her personal information.
On June 13, 2007, defendant sent the victim an e-mail in which he wrote: "Thank you, . . . sweetheart, for the opportunity that you are giving to my parents and sisters to apologize to you regarding my senseless, unsatisfactory, meaningless and lame behavior. . . . Once more, thank you for the opportunity and giving me a chance to show you Tooraj is not the animal you saw Thursday night, May 24." The victim had spoken with defendant's sister about having defendant's family call to apologize for the rape.
On December 30, 2007, the victim was returning to her apartment when she saw defendant standing in the hallway. (She had only recently moved into that apartment, and had not given her new address to defendant.) The victim ran into her apartment and locked the door behind her. Defendant pounded on the door, demanding to talk to her. Officer Jenny Beall of the Irvine Police Department responded to a 911 call, and spoke with the victim and her sister. While Officer Beall was there, defendant called the sister's cell phone. Officer Beall spoke to defendant and told him the victim and her sister did not want him near them, did not want him to contact them, and did not want him to come to their home. Defendant denied being in California, denied having attempted to see the victim, and continued to ask Officer Beall to let him speak with her. Eventually, defendant told Officer Beall he would leave the victim and her sister alone.
The next day, however, defendant sent the victim an e-mail that she forwarded to Officer Beall, in which he acknowledged being at her apartment the previous day. Defendant continued to call the victim's home, work, and cell phones, and to send her e-mails. Defendant also repeatedly appeared at the victim's apartment complex. In October 2008, after a confrontation between defendant and the victim's boyfriend, defendant was arrested and a criminal protective order was issued, requiring defendant to stay at least 200 yards away from the victim, her sister, and their residence, and to have no contact with the victim or her sister.
On October 22, 2008, the victim finally reported the rape to the police, and gave the police copies of defendant's e-mails.
On March 12, 2009, as the victim was pulling into her assigned parking space at her apartment complex, she saw defendant approaching her car. He tried to open her car door, but it was locked. Defendant demanded the victim give him papers he needed "for the court," and told her he did not rape her. The victim tried to call the police, but could not get a signal on her cell phone. Defendant said, "don't call the police. It is going to get worse. I am leaving." He told the victim, "don't say I raped you in the court." The victim waited in her car until she heard defendant's car start and saw it driven away. She then ran to her apartment and called the police.
Following a jury trial, defendant was convicted of stalking (Pen. Code, § 646.9, subd. (a)); forcible rape (id., § 261, subd. (a)(2)); forcible oral copulation (id., § 288a, subd. (c)(2)); dissuading a witness from reporting a crime (id., § 136.1, subd. (b)(1)); and disobeying a court order (id., § 166, subd. (a)(4)).
Defendant argues the trial court violated his constitutional right to due process by failing to order a competency hearing under Penal Code section 1368. A criminal defendant may not be tried or punished if he or she is "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner," due to his or her mental illness. (Pen. Code, § 1367, subd. (a).) "[A]n accused has a constitutional right to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense. Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court's own observations of the accused—may be to the contrary. [¶] When the evidence casting doubt on an accused's present sanity is less than substantial, People v. Merkouris [(1959)] 52 Cal.2d 672, 678-679, correctly states the rules for application of section 1368 of the Penal Code. Whether to order a present sanity hearing is for the discretion of the trial judge, and only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge's determination be disturbed on appeal. But, when defendant has come forward with substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing as a matter of right under Pate v. Robinson [(1966)] 383 U.S. 375. The judge then has no discretion to exercise." (People v. Pennington (1967) 66 Cal.2d 508, 518, italics added.)
Before trial, defendant's counsel requested a continuance because he was not ready for trial. Defendant told the court he did not agree to the request for a continuance. Defendant advised the court he did not want to fire his attorney and represent himself. Despite the court's warning that requiring his counsel to proceed to trial without being prepared would not be in his best interests, and would waive any later claims of ineffective assistance of counsel, defendant insisted on proceeding to trial. At a pretrial conference on July 24, 2009, defendant again confirmed he wanted to proceed to trial despite his counsel's opinion that he was not ready. At another conference on July 30, the court again noted that defendant insisted on proceeding to trial over his counsel's objection, and was therefore waiving any later claim based on ineffective assistance of counsel. Defendant also insisted that the victim take an oath on the Koran before testifying; the court advised defendant that all witnesses would take the standard oath. The next day, defense counsel again asserted that he was not ready for trial and he could not adequately represent defendant without additional time to prepare. Defendant agreed to postpone the trial, and a new trial date was set.
Trial began on September 29, 2009. Outside the presence of the jury, defendant's counsel advised the court that, although he was satisfied with the jury, defendant had expressed concern about the jury's racial composition. The trial court refused to discuss the matter directly with defendant. The prosecutor noted for the record that the trial court had previously warned defendant about making "any motions or head gestures or such" in front of the jury. The court stated that such continued behavior by defendant would be "a serious problem." While the court and counsel were discussing whether the victim would be allowed to have a support person present during her testimony, the prosecutor noted that defendant was shaking his head, and that his previous outbursts indicated he might be a security risk.
On September 30, during a break in the victim's testimony, and outside the presence of the jury, the court stated it had observed defendant "staring very intently at the witness. And he is nodding when he likes her answers, and he is shaking his head to the side when he doesn't like her answers." The court also noted it had attempted to make eye contact with defendant during the testimony to stop his behavior, to no avail.
The bailiff advised the court that defendant was making eye contact with and smiling at the jurors, and making head motions and laughing in response to the victim's testimony. It was noted on the record that defendant had been moved to another position at counsel table because of his attempts to make eye contact with the jury, and because he had repeatedly tried to stand up during the previous day's proceedings. Defendant's counsel asked the court to admonish defendant for continuing to try to interrupt the proceedings and influence the jury with his comments and gestures, but allow him to remain in the courtroom. The court advised defendant his behavior would not be tolerated, and he would be placed in shackles if he was unable to restrain himself, and would be removed from the courtroom if he could not restrain himself while shackled. Defendant explained that he had trouble sitting due to a back injury.
At the end of that day's court session, outside the presence of the jury, the court commented that defendant had behaved "much better" during the afternoon session, nodding or shaking his head "once or twice," and stopping immediately when the court looked at him.
On October 1, outside the presence of the jury, the court reminded defendant to follow the bailiffs' directions at all times, and warned him he would be removed from the courtroom and placed in a holding cell if he failed to do so. Later that day, however, outside the presence of the jury, defendant twice failed to follow the bailiff's directions to move his chair closer to counsel table, and yelled at the bailiff when he tapped defendant on the shoulder and repeated the request. Court security personnel gave other examples of defendant's pattern of agitated, nonresponsive, uncooperative behavior, and explained defendant's refusal to comply with directions was causing security concerns. The trial court also expressed its concern for the safety of courtroom personnel, attorneys, and witnesses, and therefore found defendant's noncompliant conduct warranted the use of leg restraints when court was next in session.
On October 5, before defendant's testimony began, his behavior was again agitated and uncooperative. Defendant refused to let go of what appeared to be a white T-shirt, causing the bailiff and the court to be concerned. The court expressed its concern "that the defendant is engaging in obstructive behavior at this point and trying to delay these proceedings." After defendant met privately with his attorney, the court told him he must "do exactly, exactly what the bailiffs tell you to do exactly and immediately when they tell you to do it. Otherwise, you're not going to be a witness in this case." When defendant immediately refused to follow the court's direction not to argue with the court, he was placed back in the holding cell. The court stated: "He is not cooperating. I am not comfortable." The jury was not present during this exchange.
After a break, the bailiff again noted instances in which defendant was refusing to comply with directions: "He just won't take direction. You ask him to do something, and he just defies you. And it is repeatedly with almost everything we do." The court nevertheless agreed to proceed with defendant's testimony without any increase in the restraints being used.
Defendant had great difficulty limiting his responses to the questions posed by his own counsel, and the court sustained many objections and granted many motions to strike his testimony as nonresponsive. During cross-examination, defendant was admonished for interrupting the prosecutor, and for offering rambling, argumentative, nonresponsive answers to the prosecutor's questions. Defendant's outbursts continued, requiring the court to take a break in the proceedings and ask the jury to leave the courtroom. The court explained to defendant: "You are not — not permitted to argue with me. You are not permitted to ask me questions. You must listen to [the prosecutor]'s questions and answer [the prosecutor]'s questions. You must not volunteer any information. You must stop talking when other people are talking and stop trying to influence this jury in improper ways." Defendant, however, continued to provide nonresponsive answers, and he complained that the prosecutor was not permitting him to explain his answers. When the court reminded defendant that he could not comment on the prosecutor's questions, defendant attempted to argue with the court, precipitating another recess. After the jury had been excused again, the court ordered defendant to refrain from making comments in front of the jury or arguing with the court.
When the trial resumed after the lunch break, defendant's behavior continued, causing the court to repeatedly sustain the prosecutor's objections to defendant's testimony, to order the jury to disregard many of defendant's remarks and responses, and to admonish defendant. The prosecutor expressed the desire to finish the cross-examination of defendant, even after defendant again interrupted the proceedings and was removed from the courtroom.
Defendant did not have any outbursts or interrupt the proceedings during the testimony of the defense witnesses, or during the reading of the jury instructions. Before closing argument, the trial court warned defendant, outside the presence of the jury, that he was not permitted to say anything or interrupt the proceedings, and that gestures or other nonverbal communication with the jury would not be tolerated. After the prosecutor completed his closing argument, outside the presence of the jury, the court noted that defendant had failed to comply with the court's direction, and warned defendant he would be removed from the courtroom if his behavior continued.
At one point during trial, the victim testified defendant sent her an e-mail in which he related advice he had received from his psychiatrist.
Before sentencing, the trial court appointed a psychologist to evaluate defendant, pursuant to Evidence Code section 730. The psychologist submitted a report in which she diagnosed defendant as suffering from a delusional disorder, erotomanic type, and opined that defendant committed the crimes against the victim "due to his mental illness and its effects on his perception of reality."
After the jury rendered its verdict, but before sentencing, defendant wrote several long, rambling letters to the trial court. Defendant's counsel advised the court he had unsuccessfully tried to discourage defendant from submitting anything directly to the court.
We conclude there was not substantial evidence before the trial court that defendant was mentally incompetent; the trial court therefore did not abuse its discretion in not conducting a hearing on defendant's competence.
"`Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] . . . Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]' [Citation.] But to be entitled to a competency hearing, `a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]' [Citation.]" (Lewis, supra, 43 Cal.4th at p. 524.) In Lewis, the California Supreme Court concluded the trial court did not abuse its discretion or violate the defendant's due process rights when it refused to order a competency hearing. The court concluded there was not substantial evidence of incompetence despite "trial counsel's declaration of a doubt that defendant was able to rationally assist in his defense; the opinion of defense psychologist Dr. Crinella that defendant's brain functioning was abnormal; and defendant's irrational and counterproductive behavior at trial." (Id. at p. 525.)
Here, although the court-appointed psychologist determined defendant was suffering from a delusional disorder, she did not render any opinion that defendant's disorder rendered him incompetent to stand trial. (Lewis, supra, 43 Cal.4th at p. 525.) Defendant's outbursts were indicative of an unwillingness to cooperate with counsel and the court, not an inability to do so. (Id. at p. 526.) Defendant's ability to control himself during the reading of the jury instructions, closing arguments, and substantial portions of the trial, and to respond to some of the trial court's nonverbal cues, demonstrates his outbursts and attempts to disrupt the trial were intentional.
Defendant showed he was able to participate in his defense. Despite his repeated requests that the trial not be continued over his counsel's objections, defendant refused to fire his attorney and represent himself, expressed his belief in his attorney's abilities, and later agreed to a continuance of the trial. Defendant's reasons for objecting to a continuance were also rational; defendant expressed the desire to clear his name, and was concerned that his continued absence from work would cause him to forfeit his employee stock options. Defendant expressed concerns regarding the racial composition of the jury and that the victim might not testify truthfully. Although not legally sustainable, defendant's objections show he was focused on the conduct of the trial proceedings.
Defendant's obstreperous behavior was not substantial evidence of incompetence. "[T]he test, in a [Penal Code] section 1368 proceeding, is competency to cooperate, not cooperation. As his appellate counsel points out, other procedures, under other provisions of law, apply if a defendant becomes too obstreperous or too uncooperative . . . ." (People v. Superior Court (Campbell) (1975) 51 Cal.App.3d 459, 464.)
As our Supreme Court has explained: "Under the applicable substantial evidence test, `more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense.' [Citation.] [¶] The record does not offer substantial evidence of mental incompetence. Defendant's emotional and physical reaction to the guilt verdicts and possible mistreatment in jail did not demonstrate that he could not `"understand the nature of the criminal proceedings or . . . assist counsel in the conduct of a defense in a rational manner."' [Citation.] [¶] Defendant's refusal to sit at the counsel table did not evince incompetence or lack of ability to participate meaningfully in the proceedings. His explanation for avoiding the counsel table was rational and coherent." (People v. Davis (1995) 10 Cal.4th 463, 527-528.) The defendant in People v. Davis had chosen not to sit at the counsel table, but rather stood in the doorway of the courtroom: "Defendant explained his decision not to be present in the courtroom as follows: `I don't like sitting here listening to lies about me . . . . I don't think I can sit here and have no problems with anybody in this courtroom listening to more, knowing that they know that they are lying and I know that they are lying. I feel if I sit over there, they will be less problems and I am happy to sit over there . . . . The problem is, how am I suppose to sit here like the lawyers say I'm suppose to have a straight face, don't show no, like I'm mad or anything. Just be straight and listen to these people what they have to say. It's been hard all through the trial to listen to these people when I know different . . . . I'm just trying to avoid problems.'" (Id. at p. 526, fn. 23.)
Additionally, that defendant had been under the care of a psychiatrist is not substantial evidence sufficient to require the court to conduct a competency hearing. "Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be entitled to a competency hearing, `a defendant must exhibit more than . . . a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.' [Citations.]" (People v. Rogers (2006) 39 Cal.4th 826, 847.) In this case, there was even less evidence than in People v. Rogers. Here, the victim's testimony that one of defendant's e-mails referenced advice from his psychiatrist is not even evidence of a preexisting psychiatric condition. That an individual is or has been under the care of a psychiatrist, a psychologist, a therapist, or any similar service provider is not evidence triggering the trial court's duty to conduct a competency hearing.
The cases on which defendant relies are readily distinguishable. The appellate court in Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561, 565, concluded the trial court had erred by failing, sua sponte, to conduct a competency hearing where, "[a]t the time of trial, [the defendant] had a history of mental illness, frequently refused to take his prescribed antipsychotic medications, was unable to verbally or physically control himself in the courtroom, and exhibited increasingly paranoid and psychotic behavior that impaired his communication with defense counsel and reasoning regarding his defense. Furthermore, during the trial, [the defendant] attempted suicide and spent a substantial portion of the trial involuntarily committed to a hospital psychiatric ward."
In Drope v. Missouri (1975) 420 U.S. 162, the Supreme Court concluded a sufficient doubt as to the defendant's competence to stand trial had been raised by a combination of (1) a pretrial psychiatric report concluding the defendant suffered from "`[s]ociopathic personality disorder, sexual perversion,'" borderline mental deficiency, and chronic anxiety reaction with depression (id. at p. 164, fn. 1); (2) the defendant's wife's testimony that the defendant had tried to strangle her a few days before he was to be tried for forcibly raping her (id. at p. 166); and (3) the defendant's suicide attempt during trial (id. at pp. 167, 169). No similar evidence was before the trial court in this case.
In People v. Tomas (1977) 74 Cal.App.3d 75, 82-83, the appellate court concluded there was substantial evidence of the defendant's incompetence to stand trial in the form of an Evidence Code section 730 report concluding: "`Although grossly delusional he was probably legally sane at the time of the commission of the offense charged. [¶] `Defendant is not a danger to others but is gravely disabled by his mental disorder and he should be under conservatorship. [¶] `He is presently unable to understand the nature and purpose of the proceedings taken against him and he cannot cooperate in a rational manner with counsel in presenting a defense. He had limited ability to deliberate, premeditate and harbor malice. . . . [¶] `He is not suitable for out-patient therapy. He should be treated in a hospital for general psychiatry.'" Although an Evidence Code section 730 report was prepared in this case before sentencing, it does not address whether defendant was incompetent under Penal Code section 1367, nor do any of the findings in the Evidence Code section 730 report lead to an inference of defendant's incompetence to stand trial.
Defendant next argues his trial counsel was ineffective for failing to raise a doubt about defendant's competence. In order to successfully claim ineffective assistance of counsel, defendant must prove two components: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.) Defendant's argument fails on both points.
First, defendant fails to show that his trial counsel lacked an obvious tactical reason for not declaring a doubt as to defendant's competence. The appellate record reflects only that defendant's trial counsel agreed with the trial court at sentencing that, despite the findings in the Evidence Code section 730 report, defendant's competence to stand trial was not at issue.
Second, defendant cannot establish the outcome would have been different if his trial counsel had declared a doubt as to defendant's competence to stand trial. "[Penal Code s]ection 1368 requires a competency hearing when the court declares a doubt as to competence. [Citation.] The court did not declare a doubt. A declaration of doubt by counsel alone is not sufficient to trigger a statutory right to a competency hearing. Section 1368 is written in terms of whether a doubt arises in the mind of the trial judge and is then confirmed by defense counsel. [Citation.] `If . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall . . . inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.' [Citation.] If, in response, `counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing.' [Citation.] `A doubt in the mind of counsel, or anyone else other than the trial court is not sufficient to require a hearing on the issue of sanity under the statute.' [Citation.]" (People v. Garcia (2008) 159 Cal.App.4th 163, 169-170.) Given the lack of substantial evidence of defendant's incompetence, there is no reasonable probability the outcome would have been different if counsel had declared a doubt as to defendant's competence.
Defendant next argues the trial court violated his due process rights by making a pattern of disparaging remarks about defendant during trial.
The Attorney General argues defendant has forfeited this issue on appeal, because he did not object to any of the alleged instances of misconduct at trial. Defendant concedes his trial counsel did not raise any objection to the alleged misconduct by 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.)
Defendant counters that because the trial court did admonish the jury (as discussed post), the court knew its comments were improper and prejudicial, and an objection would have been futile. We find defendant's argument to be without merit. A rule that the giving of an admonition to the jury establishes error or impropriety on the part of the trial court would be, at best, counterproductive.
Further, defendant's argument that an objection would have been futile because "it would have resulted in nothing more tha[n] an admonition, which was already given," fails because defendant does not argue that the admonition itself was futile or ineffective.
We conclude defendant forfeited this argument by failing to raise an objection to the trial court's comments. We will nevertheless consider the merits of defendant's argument to avoid the inevitable ineffective assistance of counsel claim.
Many of the trial court's comments of which defendant complains did not occur in the presence of the jurors, and therefore could not have had a prejudicial impact on the verdict. The court's comments during cross-examination of defendant by the prosecutor, which were made in the presence of the jury, and to which defendant takes exception on appeal, are quoted in full here.
The complained-of comments did not deprive defendant of his right to due process of law. When read in context, it is obvious that the trial court was fulfilling its duty "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." (Pen. Code, § 1044; see People v. Sturm, supra, 37 Cal.4th at p. 1237.)
"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. [Citations.] We 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.' [Citation.] The record suggests that on occasion during the protracted jury selection process the court showed irritation with counsel's voir dire questioning, sometimes outside the presence of prospective jurors, sometimes in front of one or more prospective jurors, and perhaps occasionally in front of a juror who actually sat on one of the juries. But we perceive nothing that crossed the line into improper behavior, and certainly nothing prejudicial to the defense cause. The trial court has the duty to control the trial. [Citations.] It effectively fulfilled that duty." (People v. Carpenter (1997) 15 Cal.4th 312, 353.)
Here, too, defendant has not established that the trial court committed misconduct, or that the court was biased against him. The record demonstrates the court's frustration, and even annoyance, with defendant when its attempts to control the trial were thwarted by defendant's continuing obstreperousness. But the trial court's actions and statements, undertaken in its attempt to maintain control of the trial, did not come close to crossing the boundary into misconduct.
Defendant argues on appeal that the trial court's comments denied him due process because they informed the jury defendant was not credible as a witness: "The Judge's admonitions to [defendant] in the jury's presence could not have any effect other than to prejudice the jury against [defendant]'s credibility since the judge repeatedly warned him that the content of his remarks was improper." (Original italics.) Defendant's underlying premise is incorrect. A review of the complained-of comments shows that the court's admonitions to defendant were not directed to the content of his statements, but to the manner in which he was presenting them, i.e., by questioning and arguing with the prosecutor and the court, by offering additional testimony and commentary rather than restricting his answers to respond to the questions posed, and by repeatedly ignoring the court's orders.
"An admonition by the judge that his or her remarks should be disregarded, together with an instruction that the jury is the sole judge of the facts, will often be held to cure the error. [Citations.]" (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 243, p. 295.) On three separate occasions during defendant's testimony, the trial court admonished the jury that it should disregard the court's comments.
Defendant argues the trial court erroneously admitted hearsay evidence that defendant's family members apologized to the victim for the rape.
On direct examination, the prosecutor asked the victim if she had been contacted by members of defendant's family. The trial court correctly overruled defendant's counsel's hearsay objection, and the victim testified defendant's mother and sisters had contacted her. The prosecutor withdrew his next question about what the discussions with defendant's mother and sisters involved, when the trial court indicated it would probably sustain defendant's counsel's hearsay objection.
The victim later testified defendant sent her an e-mail thanking her "for the opportunity that you are giving to my parents and sisters to apologize to you regarding my senseless, unsatisfactory, meaningless and lame behavior." The victim testified, without objection, "I talked to his sister about they were going to call me and apologize to me about the rape. So they called and talked to me about that." Defendant forfeited any argument that this testimony was improperly admitted by failing to object to it. (Evid. Code, § 353; People v. Price (1991) 1 Cal.4th 324, 445.)
On cross-examination, defendant's counsel followed up on the victim's previous testimony as follows:
Any allegedly improper testimony from the victim was elicited by defendant's counsel's own questions, and any error was therefore invited. "`The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. [Citations.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
Defendant also argues the victim's testimony was improper opinion testimony, which should have been excluded. Again, this issue has been forfeited, because no objection based on speculation or improper opinion evidence was raised in the trial court. In any event, the victim's testimony on this matter was proper because it was rationally based on her perception, and was helpful to a clear understanding of her testimony. (Evid. Code, § 800.)
The judgment is affirmed.
RYLAARSDAM, ACTING P. J. and BEDSWORTH, J., concurs.
