P. v. Pirhadi

Filed 8/20/07 P. v. Pirhadi CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Susan S. Shaw, Judge. Affirmed.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner-Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Armaghan Estifi Pirhadi of second degree robbery and found she used a knife in the commission of the offense. The court imposed a total term of three years, selecting the low term of two years for second degree robbery and adding one year for Pirhadis use of a knife. Pirhadi received presentence credits in the amount of 225 actual days and 34 days conduct credit as provided for in Penal Code section 2933.1.

Pirhadi argues the trial court committed prejudicial misconduct by intervening in the examination of the prosecutions complaining witness. She challenges the sufficiency of the evidence to support the jurys knife-use finding. She claims absent proof she used a knife the prosecution failed to prove she committed a theft by the use of force or fear. Finally, Pirhadi asserts she is entitled to three additional days of presentence custody credit. The Attorney General concedes Pirhadi should have received 228 actual days presentence credit. We accept the Attorney Generals concession and order the abstract of judgment corrected to reflect Pirhadi served 228 actual days in custody awaiting trial. In all other respects, the judgment is affirmed.

FACTS

On the morning of September 13, 2005, Pirhadi promised to pay Juan Manuel Lara $100 to help her unload some boxes at a party. Instead, she drove Lara to his home so he could loan her $100 for party supplies. Pirhadi and Lara drove to a beverage outlet store, but she entered the store alone and purchased napkins with her own funds. She told Lara the rest of the party supplies were to be delivered to her home and she would need his help unloading the boxes.

Pirhadi drove them to an area unfamiliar to Lara and stopped in front of

a house she identified as her home. Lara had taken money out of his pocket in anticipation of their joint trip into the store for supplies. When Pirhadi stopped her car, she asked for the money in Laras hand and for him to get out of the car and wait for her while she ran a few more errands alone. Pirhadi promised to return for Lara, but he did not believe her and refused to hand her the money or get out of the car.

Pirhadi retrieved a knife from somewhere between the drivers seat and the car door. When she turned to face him, Pirhadi held the knife in her left hand and pointed it at Laras face. Lara estimated the knife had a nine-inch blade and came within approximately 10 inches of his chin. Pirhadi said, Give it to me and get out[] in Spanish and grabbed the money out of Laras hand

Lara testified he initially thought about hitting Pirhadi, but quickly changed his mind. He said, I figured for $100 better not, something could happen to me. He got out of Pirhadis car and watched her drive away. Lara saw the cars license plate number and used a coin to write the number on the sidewalk. He wondered around for the next few minutes before he spotted a police patrol car and went for help.

Irvine Police Officer Frank J. Indelicato was on routine patrol in the area around Mason Park in Irvine when he noticed Lara walking toward his patrol car at a fast pace. Lara appeared out of breath and upset. Lara, who is Hispanic and speaks Spanish, tried to talk to Indelicato. However, because Indelicato speaks little Spanish, Officer William Bingham was dispatched to serve as a translator. Lara gave Bingham a description of the woman he said robbed him, a description of her car, and a partial license plate number. Bingham ran the partial license number through the Department of Motor Vehicles database with the cars description, and he found the name and Irvine address of the registered owner of a car matching the cars description. Using a public database, Bingham searched the registered owners name and found Pirhadi listed as an associated person.

Bingham produced a six-pack photographic lineup with Pirhadis picture, which Lara positively identified. When Bingham contacted her shortly thereafter, Pirhadi spontaneously said, I do these things a couple times, these things, to pick up the people. Youre right. Youre right. Im sorry. Please dont take me to jail. She offered to make full restitution and told Bingham her mother could repay the money before 5:00 p.m. that day. After her arrest, Pirhadi asked Bingham, Is it because I picked up those men and took their money?

Pirhadi did not testify at trial. Pirhadis mother testified her 34-year-old daughter is right-handed, not left-handed as Lara claimed. She also said Pirhadi suffers from a morbid fear of knives and had not touched a knife in 10 or 12 years.

Defense counsel admitted Pirhadi took Laras money, but counsel argued his client did not use a knife to get the money. Counsel asserted Lara was actually fooled and got out of the car; and the defendant drove off. And he realized he had been fooled and he made up this story about the knife.

DISCUSSION

Judicial Misconduct

Pirhadi claims the trial judge committed misconduct by interrupting the prosecutors direct examination of Lara to ask her own questions, and by limiting defense counsels cross-examination on the subject of the length of the knife blade. Pirhadi claims the courts intervention amounts to a violation of her Sixth Amendment right to confront adverse witnesses deprived her of the ability to present a defense. We disagree.

First, as the Attorney General points out, trial counsel failed to object on any grounds to the courts questions, rulings, or interruptions. Generally, the failure to object waives a claim of judicial misconduct on appeal unless an objection and an admonition could not cure the prejudice . . . . (People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.)~ Pirhadi acknowledges the general rule, but argues the courts overall conduct made futile any objection to particular instances of misconduct. But the record does not support her contention and the issue should be considered waived. However, Pirhadi also claims trial counsel rendered ineffective assistance of counsel by failing to object. We disagree.

The trial court asked a total of four questions during the prosecutors direct examination, two questions during cross-examination, and made a total of 15 other interruptions during Laras testimony. Pirhadi focuses on one clarifying question (I dont know whether youre asking him did she stop right in front of the house. What are you asking him?), and the following colloquy between the court and the witness: The court: Without Sometimes I have to ask questions, ladies and gentlemen, to clarify things because my job is to give you clear evidence. [] What was the closest the knife ever came to your body and where was it pointed? [] [Lara] About this (indicating). [] The court: Pardon? [] [Lara]: About this (indicating). [] The court: And it was pointed like this? [] [Lara]: Uh-huh. [] The court: Hes indicating with his left arm 45 degrees bent and pointing at [the] top of his chest and his neck. [] [The prosecutor]: How far away was the tip of the blade from your body . . .  [] [Lara]: About this (witness indicating). [] [The prosecutor]: For the record it looks like approximately ten to twelve inches. [] The court: How close was it to your body? Show us how close it came to your body, the blade, the tip of it. [] [Lara]: That was the size of the knife. So it was up to here, more or less. [] The court: The record will reflect Ive gotits about ten inches from his chin. [] [The prosecutor]: Just a second ago you estimated the length of the blade. Could you hold up your fingers to show the length of the blade that you saw? [] A: (witness indicating). [] The court: About nine inches. The courts using a ruler and indicatingmeasuring approximately.

Pirhadi also points to the following ruling during defense counsels cross-examination: [Defense counsel]: [H]ow long was the blade of the knife? Lara responded by indicated a distance with his hands, and the prosecutor offered to measure this distance with a ruler. However, the court replied, I established it once, nine inches.

Pirhadi complains the courts colloquy with Lara elicited evidence not otherwise drawn out by the prosecutors examination and that the court acted more like a co-prosecutor than a neutral arbitrator. We disagree.

Evidence Code section 775 authorizes a trial judge to call witnesses and interrogate them the same as if they had been produced by a party to the action . . . . The trial court may question witnesses to clarify evidence, cover omissions in the evidence, or provide a witness the opportunity to fully explain his or her testimony. (People v. Hawkins (1995) 10 Cal.4th 920, 947-948.) The constraints on the trial judges questioning of witnesses in the presence of a jury are akin to the limitations on the courts role as commentator. The trial judges interrogation must be . . . temperate, nonargumentative, and scrupulously fair. The trial court may not . . . withdraw material evidence from the jurys consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jurys ultimate fact-finding power. [Citation.] (Id. at p. 948.)

Here, the trial court properly elicited and clarified the evidence for the jury. The fact the court asked Lara to describe the length of the knife and how close it came to his chin does not necessarily mean the prosecutor had no intention to ask the same or similar questions. In the first place, the court interrupted the prosecutors direct examination. The same evidence could have been elicited on redirect, perhaps calculated to create a dramatic moment at the conclusion of Laras testimony. In any event, there was ample time for the prosecutor to elicit this information sometime during the trial.

Pirhadi does not argue the court exaggerated the length of knife blade, or failed to correctly measure the blade length or distance from Laras chin. She merely argues the court should have sat mute until the parties finished their own questioning. Judicial patience is an admirable quality, but the courts decision to interrupt and pose its own questions does not amount to misconduct in this instance. Further, the court did not err by interrupting defense counsels cross-examination. The length of the knife had been established during direct examination, apparently to the satisfaction of the parties. There was no apparent reason to revisit the issue.

Finally, any prejudice from the courts questioning is based on speculation, and the jury received instructions to disregard anything that might suggest judicial bias or the courts predetermination of the facts. Absent some contrary showing, we must presume jurors follow the instructions given them. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) In short, the record does not support Pirhadis claims of judicial misconduct or ineffective assistance of counsel. To the contrary, the record reflects she received a fair trial with due respect for her Constitutional rights to confront witnesses and present a defense.

Sufficiency of the evidence

Pirhadi next claims the prosecution failed to present sufficient evidence she committed a robbery and used a knife.

When reviewing a challenge to the sufficiency of the evidence, an appellate court is bound to view the record in the light most favorable to the verdict and decide if any reasonable trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) [W]e do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.] (People v. Little (2004) 115 Cal.App.4th 766, 771.) Further, [t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296; Evid. Code,  411.) Pirhadi fails to demonstrate either basis for a wholesale rejection of Laras testimony.

Lara testified Pirhadi asked him for the money in his hand and then asked him to get out of her car with a promise to return. Lara said he became suspicious and refused to cooperate. When he refused to turn over his money, Pirhadi drew a knife, pointed it at his chin, and grabbed the money from his hand. Lara felt some fear when Pirhadi brandished the knife, and he purposefully made the decision to give Pirhadi his money rather than risk serious bodily injury. There is no apparent falsity in Laras testimony, and no showing it was physically impossible for Pirhadi as the driver of a stopped car to draw a knife and hold it within 10 inches of her passenger. Instead, she points to her mothers testimony that she is right-handed, afraid of knives and does not speak Spanish. However, contradictory evidence is not enough for this court to disturb the jurys verdict.

Pirhadi claimed Lara voluntarily gave her $100 for some other unspecified reason and lied about her using a knife. The jury rejected her account. In doing so, it relied on solid, credible evidence. We conclude the evidence is sufficient to support Pirhadis robbery conviction and the jurys finding she used a knife to commit the offense.

DISPOSITION

The judgment is affirmed. The clerk of the superior court is directed to correct the abstract of judgment to reflect Pirhadis presentence credits of 228 actual days and to forward a copy of the corrected abstract to the Department of Corrections.

SILLS, P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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