In re Simonton

Filed 10/4/06 In re Simonton CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Petition for Writ of Habeas Corpus, Michael D. Wellington, Judge. Petition denied.

A jury convicted James Allen Simonton of six counts of lewd acts on a child (Pen. Code, § 288, subd. (a))^[1] and two counts of annoying or molesting a child (§ 647.6, subd. (a)), and the court found true one serious felony prior conviction allegation (§§ 667, subd. (a)(1), 1192.7, subd. (c)) and two prior strike conviction allegations (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced Simonton to 36 years to life. Simonton appealed, asserting several claims, but this court affirmed the convictions (People v. Simonton (June 10, 2003, D039632 [nonpub. opn.])), and the Supreme Court denied Simonton's petition for review.

One year later, Simonton petitioned the Superior Court for a writ of habeas corpus. Simonton's petition contained numerous claims, including the allegation the trial judge, the Honorable Michael D. Wellington, was biased and prejudiced against Simonton, and required reversal of his convictions and entitled him to a new trial. The superior court, denying the petition, rejected the claim of judicial bias because it concluded the claim was "not substantiated by any evidence whatsoever" that Judge Wellington made remarks suggesting he had a preexisting bias or prejudice against Simonton.

Simonton then filed the present petition for writ of habeas corpus with this court raising the same claims asserted in the writ proceeding below. Simonton argued the trial court erroneously concluded there was "no . . . evidence whatsoever" to support his claim of judicial bias because the petition below included that evidence in a declaration from Mireille Cauldren. In her declaration, Cauldren averred she had an off-record conversation with Judge Wellington, sometime after he had sentenced Simonton, during which Judge Wellington told her, in substance, that "he saw so many of these cases that he is jaded and thinks everyone is guilty."

The People's informal response to Simonton's petition did not address this aspect of Simonton's judicial bias claim. We issued an order to show cause and specifically requested that the People's return and Simonton's traverse include briefing on whether Judge Wellington's alleged posttrial remarks support reversal of the conviction. The People's return, although conceding denial of the due process right to an impartial judge is a "fatal defect in the trial mechanism" (People v. Brown (1993) 6 Cal.4th 322, 333), contained a declaration by Judge Wellington denying he told Cauldren that he is jaded or thinks everyone is guilty and denying he believes everyone is guilty.^[2] Because the trial record was silent on this issue, and the declarations raised issues of fact this court is not institutionally designed to resolve (In re Vargas (2000) 83 Cal.App.4th 1125, 1131), namely, whether Judge Wellington told Cauldren that he believed all defendants assigned to his court on charges of sexual offenses against minors are guilty of the charged (or lesser related) offenses, we referred the case to the Superior Court for an evidentiary hearing. (See People v. Romero (1994) 8 Cal.4th 728, 740.)

The Honorable Lee S. Edmun presided as referee at that hearing. After hearing testimony and receiving evidence, the referee found Simonton had not demonstrated that Judge Wellington told Cauldren he believed all defendants assigned to his court on charges of sexual offenses against minors are guilty of the charged (or lesser related) offenses.

Considering those findings, and after a brief recapitulation of the facts adduced at the original trial, we resolve the issue raised by our order to show cause.

I

STATEMENT OF FACTS^[3]

Lee Ann F., mother of then minor children Michael, David, and Brian, met Simonton through her husband to be, Brett F., and by the spring of 2000 Simonton was visiting Lee Ann's home every day. Simonton took the family to amusement parks and bought the children expensive presents, and provided substantial financial support to the family.

Simonton often wrestled with Michael, David and Brian. David testified that twice while they were wrestling, Simonton grabbed David's buttocks, which made David uncomfortable. David pushed Simonton off and told him, "That's not cool" or, "Don't, I don't like it." After the second incident, they no longer wrestled. David thought the actions were accidental and told a detective Simonton had not molested him because he did not believe Simonton's actions constituted molestation. Brian testified that two or three times he heard David tell Simonton, "Do not touch my butt."

Michael testified that Simonton also wrestled with him. When Simonton won, he would tickle Michael on his upper thigh. While they were wrestling, Simonton also touched Michael's buttocks under his clothes.

On May 4, 2000, Michael spent the night at Simonton's house while Michael's mother was on her honeymoon. Because there were adults playing the organ downstairs, Michael asked if he could sleep upstairs in Simonton's bed. Simonton later joined Michael in bed. That evening and the following morning, Simonton engaged in conduct with Michael that formed the basis for five of the convictions.

A few weeks later, Michael told Lee Ann that Simonton touched him. She called a family meeting that included Simonton, but Simonton said he had done nothing wrong and had never done anything like this in the past. After Brett vouched for Simonton's character, Lee Ann continued to allow Simonton to be with the children. Lee Ann knew Simonton was a registered sex offender, but she thought it resulted from an affair Simonton had when he was 20 years old with a 17-year-old boy.

In February or March 2001, Michael told a school counselor about the molestation. The counselor made a report to Child Protective Services, and Michael was removed from Lee Ann's home and was not allowed to return for two to three months.

Spencer L., Billy D., and Jonathan A. testified about Simonton's prior acts of molestation. Spencer and Billy described molestations in early 1988 when they were ages 12 and 11, respectively. Jonathan described a molestation in 1990, when he was 10 years old.

Simonton testified on his own behalf. He admitted to wrestling with the boys but denied inappropriate activities. He denied engaging in sexual misconduct with Michael during the May 4, 2000 incident, asserting Michael could not have been at Simonton's house on May 4 because Simonton was not home that night; he was attending choir practice.

Robert Plimpton, Simonton's roommate, testified Michael was not at their home during the week of May 2 through May 6, 2000. Roy Attridge, who studied piano with Simonton, testified that he visited Simonton's home three or four times during 2000 and never saw young boys there. Sonny Borges testified he spent the night at Simonton's house sometime between April and August 2000, and that Brian and David had been there but had spent the night downstairs.

II

ANALYSIS OF JUDICIAL BIAS CLAIM

Simonton asserts he is entitled to a new trial because he was denied his due process right to an impartial judge.

A. Applicable Law

The due process clause of the Fourteenth Amendment requires " a 'fair trial in a fair tribunal' [Withrow v. Larkin (1975) 421 U.S. 35, 46] before a judge with no actual bias against the defendant or interest in the outcome of his particular case." (Bracy v. Gramley (1997) 520 U.S. 899, 904-905.) A violation of this right can be a "fatal defect in the trial mechanism" (People v. Brown, supra, 6 Cal.4th at p. 333), which is not subject to a harmless error analysis but instead is a structural defect that is reversible per se. (People v. Brown, supra, 6 Cal.4th at 332; cf. Tumey v. State of Ohio (1927) 273 U.S. 510, 535.) The People rely on People v. Hefner (1981) 127 Cal.App.3d 88 to imply the proper standard for review is Chapman v. California (1967) 386 U.S. 18. We are not persuaded by this argument. First, the Hefner court expressly cautioned it was reversing because of instructional errors and it was therefore unnecessary to reach whether the judicial misconduct in Hefner warranted reversal. (Hefner, at p. 91.) Thus, Hefner's discussion was dicta. More importantly, although Hefner broadly labeled the issue as one of judicial "bias," a close examination reveals that the conduct examined and discussed in Hefner was not based on the allegation that the judge had an extrajudicial bias against the defendant or interest in the outcome of the particular case, but instead involved judicial remarks during the course of a jury trial that were "critical or disapproving of, or even hostile to, counsel, the parties, or their cases [and may have] reveal[ed] such a high degree of favoritism or antagonism as to make fair judgment impossible. . . ." (Liteky v. U.S. (1994) 510 U.S. 540, 555.) This latter type of judicial intemperance (which might better be labeled "judicial misconduct") can require reversal if it in fact deprived the defendant of a fair trial, but because it was not the type of bias that constitutes structural error, Chapman would have provided the appropriate standard for whether the defendant was entitled to a new trial.

The Dual Purposes of the Right to an Impartial Judge

The right to an impartial judge under the due process clause is easily stated but its boundaries are "somewhat ill-defined." (Johnson v. Scully (2d Cir. 1984) 727 F.2d 222, 226.)

The inability to precisely delineate the boundaries of this protection appears partly attributable to the difficult task of distinguishing those "biases" that are an inherent aspect of human nature from those "biases" unacceptable under the due process clause. Justice Frank recognized the problem over 60 years ago when he wrote, in an opinion joined by Justice Hand, that: "Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, 'bias' and 'partiality' be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions; and the process of education, formal and informal, creates attitudes in all men which affect them in judging situations, attitudes which precede reasoning in particular instances and which, therefore, by definition, are [prejudices]. Without acquired 'slants,' [preconceptions], life could not go on. . . . Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. . . . More directly to the point, every human society has a multitude of established attitudes, unquestioned postulates. Cosmically, they may seem parochial prejudices, but many of them represent the community's most cherished values and ideals. Such social [preconceptions], the 'value judgments' which members of any given society take for granted and use as the unspoken axioms of thinking, find their way into that society's legal system, become what has been termed 'the valuation system of the law.' The judge in our society owes a duty to act in accordance with those basic predilections inhering in our legal system (although, of course, he has the right, at times, to urge that some of them be modified or abandoned). The standard of dispassionateness obviously does not require the judge to rid himself of the unconscious influence of such social attitudes.

"In addition to those acquired social value judgments, every judge, however, unavoidably has many idiosyncratic 'learnings of the mind,' uniquely personal prejudices, which may interfere with his fairness at a trial. He may be stimulated by unconscious sympathies for, or antipathies to, some of the witnesses, lawyers or parties in a case before him. . . . Frankly to recognize the existence of such prejudices is the part of wisdom. The conscientious judge will, as far as possible, make himself aware of his biases of this character, and, by that very self-knowledge, nullify their effect. Much harm is done by the myth that, merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases. . . .

Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions." (In re J.P. Linahan (2d Cir. 1943) 138 F.2d 650, 651-654.)

The amorphous nature of the right to an impartial judge has generated significant confusion among the cases that have grappled with matters considered under the generic rubric of "judicial bias," both in California (compare People v. Brown, supra, 6 Cal.4th at p. 332 [denial of right to impartial judge is a structural defect that is reversible per se] with People v. Hefner, supra, 127 Cal.App.3d at p. 95 [reversal for judicial bias not required when evidence of guilt was overwhelming]) and elsewhere (compare Tumey v. State of Ohio, supra, 273 U.S. at p. 535 [reversing because "No matter what the evidence was against him, he had the right to have an impartial judge."] with Bracy v. Gramley, supra, 520 U.S. at p. 909 [suggesting defendant entitled to no relief absent evidence of "actual judicial bias in the trial of his case"].)^[4] However, some clarity may emerge from recognition that there are two distinct underlying purposes served by the due process right to an impartial judge. When a trial judge is "biased":

" . . . two concerns arise. First, his [bias] creates a risk that the jury will be deflected from a conscientious discharge of their responsibility to find the facts, apply the law, and reach a fair verdict. The jurors may believe that they should shade their judgment to accommodate the judge's view of the defendant's guilt, perhaps deferring to his view in a close case. Second, even if the jurors are not swayed from an independent discharge of their solemn responsibilities, the judge's [bias] creates a risk that the trial will not be perceived by the defendant or the public as a fair adjudication of guilt or innocence, presided over by a neutral magistrate obliged to deal evenhandedly between the contending forces of the prosecution and the defense." (Daye v. Attorney General of State of N.Y. (2d Cir. 1983) 712 F.2d 1566, 1571-1572.)

Thus, the right to an impartial judge appears designed to protect two distinct interests: first, to assure the defendant receives a trial that is in fact fair; and second, to protect the broader societal interest in promoting confidence in the judicial process by providing trials untainted by an appearance of unfairness. (Cf. Pacific etc. Conference of United Methodist Church v. Superior Court (1978) 82 Cal.App.3d 72, 87-88 [" 'The trial of a case should not only be fair in fact, but it also should appear to be fair.' "].) This latter interest was the apparent focus of the court's comments in In re Murchison (1955) 349 U.S. 133, 136, when the court explained:

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law.' [Quoting Tumey v. State of Ohio, supra, 273 U.S. at p. 532.] Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way 'justice must satisfy the appearance of justice.' [Quoting Offutt v. U.S. (1954) 348 U.S. 11, 14.]" (Italics added.)

The Sources of Judicial Bias

The courts, attempting to implement the due process requirement of an impartial judge, have distinguished between a bias derived from extrajudicial sources from a bias arising as the result of the judicial proceeding to which the defendant is a party. (See, e.g., U. S. v. Conforte (1978) 457 F.Supp. 641, 657-660.)

In one broad category of cases exemplifying extrajudicially-derived biases, the courts have declared the due process right to an impartial judge is violated when the judge stood to benefit directly and personally from the outcome of the case, whether the benefit was pecuniary (Tumey v. State of Ohio, supra, 273 U.S. 510; see also Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813) or nonpecuniary (see Bracy v. Gramley, supra, 520 U.S. 899). A second broad category of cases, also apparently exemplifying extrajudicially-derived biases, have concluded the due process right to an impartial judge is violated when the judge held preexisting biases or prejudices against the class of persons to which the litigant belonged and the class was germane to the matters being litigated in the action. (See Berger v. U.S. (1921) 255 U.S. 22, 28 [judge's expressed belief that "German-Americans['] . . . hearts are reeking with disloyalty" barred judge from presiding over espionage trial against German-American defendants]; Catchpole v. Brannon (1995) 36 Cal.App.4th 237 [judge's comments showed a gender bias against women; judgment against female plaintiff in sexual harassment lawsuit reversed]; Adoption of Richardson (1967) 251 Cal.App.2d 222 [six months before judge was assigned adoption petition brought by deaf-mute parents, judge made comments suggesting he would not approve an adoption by deaf-mute parents].)

When the judge held the types of "extrajudicial" biases or prejudices described by the foregoing cases, the courts have generally reversed the judgments without regard to whether the trial was objectively fair in its conduct. (See Tumey v. State of Ohio, supra, 273 U.S. at p. 535 ["No matter what the evidence was against him, he had the right to have an impartial judge.]; accord, Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 247 ["Where the average person could well entertain doubt whether the trial judge was impartial, appellate courts are not required to speculate whether the bias was actual or merely apparent, or whether the result would have been the same if the evidence had been impartially considered and the matter dispassionately decided [citations], but should reverse the judgment and remand the matter to a different judge for a new trial on all issues."]; Harrison v. McBride (7th Cir. 2005) 428 F.3d 652.) Indeed, a judge harboring extrajudicial biases, like other structural defects in the trial mechanism, poses an error that "def[ies] analysis by 'harmless error' standards. The entire conduct of the trial from beginning to end is obviously affected by . . . the presence on the bench of a judge who is not impartial." (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.)^[5]

However, when the claim is that the judge had a bias against the litigant stemming from events occurring during the progress of the litigation rather than from extrajudicial sources, the courts have not employed a reversal per se standard. As explained in Haldane v. Haldane (1965) 232 Cal.App.2d 393, 395, when the animus the trial judge is alleged to have formed against the defendant is one arising out of the proceedings in the action itself:

"This is not such a bias or prejudice as disqualifies a judge from continuing to hear the case then before him. 'A judge may not properly try a case where he has formed partisan opinions from outside sources, but a trial judge will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party's position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification.' (1 Witkin, Cal. Procedure, Courts, § 41, pp. 170-171.)"

Although a bias developed from events at trial does not by itself violate due process, the courts have cautioned reversal may be appropriate if there is an affirmative showing the judge's animus against the litigant manifested itself in such a manner as to actually have created such " 'a pervasive climate of partiality and unfairness' " t

hat it "rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." (Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 740.) The distinction was outlined in Copeland v. Walker (E.D.N.Y. 2003) 258 F.Supp.2d 105, 133-134, when the court explained:

"The [d]ue [p]rocess [c]lause of the Fourteenth Amendment 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 particular case.' [Quoting Bracy v. Gramley, supra, 520 U.S. 899, 904-905.] However, where the alleged bias is rooted not in any external catalyst but rather in the trial proceedings themselves, judicial bias is almost never a basis for habeas relief: '[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. . . .' [Quoting Liteky v. U.S., supra, 510 U.S. 540, 555-556, italics omitted]." (Italics added.)

Thus, when the bias or prejudice is not rooted in extrajudicial sources, but instead represents views and opinions that crystallized as the litigation unfolded, the due process rights of the defendant are not impaired unless such partiality is accompanied by "prejudicial intervention by a trial judge [that] so fundamentally impair[ed] the fairness of a criminal trial as to violate the [d]ue [p]rocess [c]lause." (Daye v. Attorney General of State of N.Y., supra, 712 F.2d at p. 1570.) In this latter situation bias does not trigger per se reversal, but instead requires an affirmative and substantial showing that the bias led to judicial interference, rendering the trial in fact unfair. (See Gayle v. Scully (2d Cir. 1985) 779 F.2d 802, 806 ["[A] petitioner claiming that a judge's bias deprived him of a fair trial faces a difficult task. . . . However, 'we recognize that some point exists beyond which the quantity and nature of a trial judge's [intervention] renders a trial unfair in the constitutional sense.' "])

The Appropriate Framework

Identifying the etiology of the bias provides some guidance on whether the complaining party will be entitled to reversal per se (where an improper extrajudicial bias is shown) or must instead show the trial was fundamentally unfair in fact (where the animus arose during the litigation). However, for claims of bias within the former category, we are left with little guidance for distinguishing between those forms of extrajudicial biases that are the inevitable (and acceptable) detritus of the human experience described by Justice Frank in In re J.P. Linahan, supra, 138 F.2d at pages 651 through 654, and those forms of extrajudicial bias that unacceptably tread on the due process clause. (Harrison v. McBride, supra, 428 F.3d at p. 668 ["[T]his right encompasses 'an absence of actual bias' [but] the contours of this right cannot be defined with 'precision.' "].)

We apprehend the appropriate test for distinguishing between acceptable and unacceptable forms of extrajudicially derived bias should be consonant with the underlying societal interest served by the broad proscription against bias, which is that a trial must be fair not just in fact but also in appearance. The latter aspect is implicated when the defendant asserts that an extrajudicial bias debilitated the trial judge, and we believe the appropriate litmus test for this aspect of the due process protection should be the objective test outlined in Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), which examines whether a reasonable person, if apprised of all the facts, would reasonably entertain a doubt that the judge would be able to maintain impartiality at the trial. (See People v. Brown, supra, 6 Cal.4th at pp. 332-337 [statutory disqualification provisions of Code Civ. Proc. § 170.1, subd. (a)(6)(A)(iii) "appears to codify due process grounds for [challenging the impartiality of a judge]"].) This objective test appears appropriate because it promotes and enforces the societal interest in retaining confidence in the fairness of the judicial process, regardless of the actual events transpiring at trial, by limiting per se reversal to those cases in which a reasonable person, if aware that the judge harbored certain viewpoints or prejudices, would reasonably doubt the fairness of the trial. Against this background, we assess whether Simonton's claim of judicial bias requires reversal of his conviction.

B. Analysis

Our evaluation of Simonton's claim that judicial bias warrants reversal of the judgment requires us to determine whether Simonton asserts a claim of extrajudicial bias (for which per se reversal is the apparent remedy) or whether he instead claims Judge Wellington developed a bias against Simonton during trial accompanied by "prejudicial intervention by [the] trial judge [that] so fundamentally impair[ed] the fairness of a criminal trial as to violate the [d]ue [p]rocess [c]lause." (Daye v. Attorney General of State of N.Y., supra, 712 F.2d at p. 1570.)

It appears Simonton's habeas corpus petition relies on extrajudicial bias of the non-pecuniary type addressed by such cases as Berger v. U.S., supra, 255 U.S. 22, Catchpole v. Brannon, supra, 36 Cal.App.4th 237, and Adoption of Richardson, supra, 251 Cal.App.2d 222, e.g., a judge who had a preexisting bias or prejudice against the class of persons to which the litigant belonged germane to the matters being litigated in the action. However, the referee, after an evidentiary hearing, found Judge Wellington did not make statements to Cauldren suggesting he held a preexisting belief that all defendants assigned to his court on charges of sexual offenses against minors are guilty of the charged (or lesser related) offenses. The referee's report extensively reviewed the evidence supporting the finding. Although Simonton contends the finding is contrary to the evidence, our review of the report convinces us the finding is supported by the evidence. (In re Scott (2003) 29 Cal.4th 783, 812.)

The referee's finding is fatal to Simonton's per se reversal claim because, after the alleged posttrial statements attributed to Judge Wellington by Cauldren are eliminated, there is no cognizable evidence to support the allegation that Judge Wellington harbored the kind of extrajudicial bias that would cause a reasonable person to entertain a reasonable doubt that he impartially conducted the trial.

Simonton appears also to argue that reversal for judicial bias can be premised on the adverse evidentiary rulings made by Judge Wellington at Simonton's trial. To the extent Simonton intends to argue that a reviewing court may find a preexisting extrajudicial bias or prejudice warranting per se reversal because the trial court made unfavorable rulings at trial, the courts have determined that adverse rulings, even if incorrect, will not alone support per se reversal based on a claim of judicial bias. (See, e.g., U.S. v. Gallagher (1978) 576 F.2d 1028, 1039; People v. Hefner, supra, 127 Cal.App.3d at p. 95.) Instead, a claim of judicial misconduct based on trial court activities, when unaccompanied by any evidence of a preexisting extrajudicial bias, requires a showing that the court's actions at trial were so egregious and pervasive that the conduct "transgress[ed] the limits of fundamental fairness" and thereby deprived the defendant of his or her right to a fair trial because it "distract[ed] the jury from a conscientious discharge of [its] responsibilities to find the facts, apply the law, and reach a fair verdict," and involved a trial whose conduct was such "that public confidence in the impartial administration of justice was seriously at risk." (Daye v. Attorney General of State of N.Y., supra, 712 F.2d at pp. 1571-1572.) However, because both the factual and legal bases for this species of a judicial bias claim were available to Simonton in his original appeal, he may not utilize this habeas proceeding as a new appeal to resurrect this claim. (See generally In re Harris (1993) 5 Cal.4th 813, 825-834.)

C. Conclusion

Simonton's habeas petition was necessarily predicated on a factual allegation of a preexisting extrajudicial bias by the trial judge against the class of defendants to which Simonton belonged. The referee's report and findings, for which there is substantial evidentiary support, has eradicated the factual basis for this assertion, and we therefore conclude Simonton may not obtain per se reversal for his claim of preexisting extrajudicial bias.

III

THE REMAINING CLAIMS

Simonton's habeas petition raises eight other claims, which we conclude are not persuasive.

A. The Previously Litigated Claims

Simonton's petition asserts (1) the trial court abused its discretion under Evidence Code section 352 when it admitted prior acts evidence, (2) the trial court erroneously admitted certain expert testimony, and (3) this court applied the wrong legal standard when we evaluated the evidence of sexual intent and the evidence was insufficient to support the verdict on that issue. These issues were raised and rejected on appeal and may not be relitigated by habeas proceedings. (In re Waltreus (1965) 62 Cal.2d 218, 225.)

B. The New Evidence Claim

Simonton asserts there were newly discovered witnesses who would have reinforced his alibi defense. However, we conclude Simonton has not shown the proffered witnesses were either newly discovered or sufficiently significant to warrant habeas relief. Two "alibi" witnesses, at least one of whom was an acquaintance of Simonton, only averred that they met with Simonton (who was accompanied by three children, including a 10-year-old boy) on the evening of May 4, 2000 around 7:00 p.m. for a choir practice and the meeting lasted approximately 45 minutes. A third alibi witness would have averred Simonton was at work the following day. Simonton does not explain why, having considered a proposed alibi defense, his retained counsel could not in the exercise of reasonable diligence have located these witnesses or presented them at trial to provide this alibi evidence, thus undermining Simonton's claim this evidence qualified as newly discovered evidence. Moreover, even if the evidence could be deemed newly discovered, it would provide a basis for relief only if it substantially undermined the prosecution's entire case. (In re Clark (1993) 5 Cal.4th 750, 766.) That is, "a criminal judgment may be collaterally attacked on the basis of 'newly discovered' evidence only if the 'new' evidence casts fundamental doubt on the accuracy and reliability of the proceedings. At the guilt phase, such evidence, if credited, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1246.) The incidents of alleged molestation occurred during the evening of May 4 and/or the morning of May 5, 2000. The proffered testimony would not have been inconsistent with Simonton having returned home (with the 10-year-old boy that one alibi witness recalled) after choir practice and then committing the molestations that night and the next morning before proceeding to work. Accordingly, these witnesses (even if credited) would not have "point[ed] unerringly to [Simonton's] innocence." (Ibid.)

C. The Waived Claims

Simonton's habeas petition also asserts the jury was improperly instructed under CALJIC No. 4.71, that counts 6-7 and 8-9 were "multiplicitous," and the prosecutor allegedly committed misconduct at trial. These issues were waived at trial because there is no showing these issues were preserved by a contemporaneous objection at trial. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Moreover, because these issues could have been raised on the direct appeal, Simonton may not resurrect these claims by this habeas petition. (In re Walker (1974) 10 Cal.3d 764, 773.) Simonton attempts to revive these claims by asserting ineffective assistance of appellate counsel. For the reasons discussed below, Simonton's claim of ineffective assistance of appellate counsel is not persuasive.

D. The Ineffective Assistance of Counsel Claim

Simonton's final collateral attack asserts ineffective assistance of counsel at both the trial and appellate court levels.

Standards

To establish ineffective assistance of trial counsel, a defendant must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th 552, 561.) We apply the same standards to Simonton's claim of ineffective assistance of appellate counsel. (People v. Osband (1996) 13 Cal.4th 622, 664.)

A court's review of defense counsel's performance is a deferential one, and we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Osband, supra, 13 Cal.4th 622, 664.) It is defendant's burden to show inadequacy of trial counsel, and reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Where the record affirmatively shows that counsel's omissions "resulted from an informed tactical choice within the range of reasonable competence," we must affirm the conviction. (People v. Pope (1979) 23 Cal.3d 412, 425, disapproved on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "[I]f the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . .' " (People v. Cudjo (1993) 6 Cal.4th 585, 623.)

"A defense counsel is not required to make futile motions or to indulge in idle acts to appear competent" (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091), and he or she is not required "to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances." (People v. Freeman (1994) 8 Cal.4th 450, 509.)

Analysis

Simonton asserts his trial counsel was ineffective for (1) withdrawing a requested alibi instruction, (2) failing to object to prosecutorial misconduct, (3) failing to object to certain jury instructions, and (4) failing to present witnesses in support of his defense. He also asserts appellate counsel in the original appeal was ineffective for not interposing these issues in the original appeal. Simonton concedes the record affirmatively demonstrates defense counsel withdrew the alibi instruction for an undisclosed strategic reason. There are articulable tactical reasons for this decision that are within the range of reasonable competence. For example, the alibi instruction states the defendant "has introduced evidence showing he was not present at the time and place of the commission of the alleged crime." That instruction, inferentially conceding the crime occurred but the defendant was not the perpetrator, is predicated on defense evidence the defendant was elsewhere at the time of the offense. That instruction could have highlighted the absence of defense evidence establishing Simonton did not spend the night of May 4, 2000, sleeping in his own bed. We conclude Simonton's trial counsel was not ineffective in withdrawing the alibi instruction and, a fortiori, that his appellate counsel was not ineffective for failing to raise that claim on appeal.

Simonton's habeas petition contains no explanation for defense counsel's remaining actions at trial. For example, Simonton asserts his counsel should have interposed over 40 separate objections to the prosecutor's alleged misconduct in closing argument, because the prosecutor allegedly (1) misstated the evidence (15 times), (2) misstated the law (six times), (3) improperly vouched for witnesses (seven times), (4) appealed to passion and prejudice (eight times), and (5) drew "improper conclusions" (eight times). Most of Simonton's cited instances were within the bounds of zealous advocacy and permissible argument, and his counsel may well have chosen not to risk offending the jury with repeated interruptions that drew nothing but overruled objections. Even if a few of the cited instances may have resulted in successful objections, a mere failure to object to closing argument rarely establishes counsel's incompetence (People v. Thomas (1992) 2 Cal.4th 489, 531), particularly when arguable tactical reasons exist for not objecting. (See People v. Ghent (1987) 43 Cal.3d 739, 772 ["Counsel may well have tactically assumed that an objection or request for admonition would simply draw closer attention to the prosecutor's isolated comments."]) We have reviewed Simonton's remaining specifications of alleged incompetence for failure to object to the prosecutor's actions at trial, and are convinced there may have been valid tactical reasons for not objecting and, in any event, it is not reasonably probable Simonton would have been acquitted even had defense counsel objected.^[6]

Simonton also claims trial counsel was incompetent because he did not present certain witnesses to bolster his defense or weaken the prosecution's case. However, Simonton's habeas petition concedes his counsel articulated tactical reasons for not calling Simonton's therapist and a third party witness. More importantly, because Simonton's habeas petition is devoid of declaration by these uncalled witnesses of what evidence they would have provided had they been called at trial, Simonton has not satisfied his burden (People v. Snyder (2003) 112 Cal.App.4th 1200, 1223) of showing there is a reasonable probability that the result would have been more favorable to Simonton had these witnesses testified. (In re Jones, supra, 13 Cal.4th at p. 561.)

Simonton finally asserts his trial counsel was ineffective by not objecting to CALJIC No. 4.71, and appellate counsel was ineffective for not seeking reversal based on the giving of CALJIC No. 4.71, and there was a reasonable probability he would have obtained a more favorable result at trial or on appeal had that issue been raised. CALJIC No. 4.71 provides: "When, as in this case, it is alleged that the crime charged was committed 'on or about' a certain date, if you find that the crime was committed, it is not necessary that the proof show that it was committed on that precise date; it is sufficient if the proof shows that the crime was committed on or about that date." Simonton does not dispute this is an accurate statement of law, but instead (citing People v. Barney (1983) 143 Cal.App.3d 490, 497) argues it should not have been given where (as here) the prosecution's evidence at trial fixed the time of the crimes alleged in counts one through four to a certain date (May 4, 2000) and the defendant presents a defense of alibi or "lack of opportunity" to commit the offense on that date. However, the objected-to instruction was immediately followed by the court's instruction that counts six and seven (charging two counts for touching Michael's buttocks), and counts eight and nine (charging two counts for touching David's buttocks), were alleged to have occurred "on or about and between" an approximately one-year period.^[7] There is no claim in this proceeding that CALJIC No. 4.71 was improper as to those offenses or any showing the jury did not comprehend CALJIC No. 4.71 to be limited to those offenses. Moreover, even if the jury might have understood the complained-of instruction to also apply to counts one through four, it appears the instruction would be proper because the evidence did not fix whether the precise time of each touching during Simonton's bedroom encounter with Michael would have been after midnight (thereby making all four offenses occur on May 5th), or whether some of the touchings were earlier in the evening (making the commission of some or all of the offenses on May 4th). Here, there is a potential that the complained of actions had a rational tactical purpose,^[8] and we therefore reject Simonton's ineffective assistance claim on this issue.

DISPOSITION

The petition is denied.

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The People's return also suggested we could summarily deny the petition because Cauldren's declaration was inadequate to prima facie show an impermissible bias. We ordered an evidentiary hearing because the declaration, although controverted, provided an adequate prima facie showing of bias. (Cf. Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 704-706.)

^[3] Our factual recitation is derived from our prior opinion in this matter.

^[4] Indeed, even on remand from a Supreme Court decision addressing a specific and discrete claim of judicial bias, the absence of clear standards fractured the Seventh Circuit and produced three differing opinions on the extent to which the defendant was entitled to relief. (See Bracy v. Schomig (7th Cir. 2002) 286 F.3d 406 [en banc].)

^[5] The wisdom of eschewing a traditional "harmless error" analysis in the context of a biased judge may stem from practical considerations: "Judicial bias is not apparent in the trial record now before this court. But judicial bias can be discreet and subtle. It can affect the judge's demeanor, or the judge's temperament. It can appear in the judge's glance, or in the judge's tone of voice. It can be hidden in discretionary rulings. Indeed, judicial bias can work its evil even without the realization of the offending judge. Without a word being spoken, judicial bias can send a powerful message to the jury: 'The judge thinks he is guilty.' " (Pinardi v. State (Fla.App. 1998) 718 So.2d 242, 248 (dis. opn. of Harris, J.).)

^[6] For the same reasons, we reject Simonton's claim that his appellate counsel was incompetent for not raising a prosecutorial misconduct claim because the issue had been waived at trial. We are not convinced Simonton's appellate counsel was incompetent for not asserting this as a derivative claim, e.g., the failure to object constituted ineffective assistance of trial counsel. Because Simonton's trial counsel had potential tactical reasons for not objecting, nonobjection did not provide grounds for an arguable appellate reversal based on ineffective assistance of trial counsel.

^[7] Simonton also asserted below that his appellate counsel was ineffective for not asserting that counts six and seven (alleging improper touching of Michael's buttocks), and counts eight and nine (alleging improper touching of David's buttocks) were improperly multiplicitous. However, this argument ignored the evidence showed at least two improper touchings as to each child, and appellate counsel was not required to make a doomed argument that the evidence was not sufficient to support two counts as to each child.

^[8] For example, a reasonably competent trial attorney could have perceived it would be fruitless to object to an instruction that was (at a minimum) partly proper and applicable, and that it would be tactically inadvisable to further highlight the instruction by efforts to tailor it to exclude counts one through four from its operation. Moreover, a reasonably competent appellate attorney could have perceived it would be tactically inadvisable to dilute the impact of his primary arguments on appeal by interposing an argument that may have been rejected either on its merits or under a harmless error analysis.