In re Rodney P.

Filed 10/12/06 In re Rodney P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Federico Castro (retired judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and S. Charles Wickersham, Judges. Reversed.

On November 29, 2005, the San Diego County District Attorney filed a wardship petition under Welfare and Institutions Code section 602,^[1] charging Rodney P., a minor, with sale of marijuana (Count 1) (Health & Saf. Code, § 11360, subd. (a)),^[2] and possession of marijuana for sale (Count 2). (Health & Saf. Code, § 11359.) The court found the allegations true and declared Rodney a ward of the court. At the disposition hearing, the court committed Rodney to the Juvenile Ranch Facility Drug Dormitory for no more than 120 days followed by probation and home supervision. The court also imposed a fine of $60.00 under section 730.5 and restitution in the amount of $50.00 under section 730.6.

On appeal, Rodney contends: (1) the court's bias denied him his due process right to a fundamentally fair trial; (2) count 2 must be stricken because possession for sale is a lesser included offense of sale of marijuana; and (3) the section 730.5 fine is improper because the court made no finding of Rodney's ability to pay the fine. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

On November 23, 2005, Officer Jeff Edwards of the San Diego Trolley Enforcement Division was on plainclothes detail at Palomar Station in Chula Vista. At approximately 9:10 p.m., Edwards saw Harvey McKnight approach Rodney and say, "[d]o you have what I want?" Rodney then handed McKnight a bag of marijuana. After a few minutes, Edwards approached Rodney and asked him for a lighter. Rodney responded by asking Edwards if he wanted "some weed." Edwards asked Rodney for a "ten-sack" and Rodney confirmed he had one, displayed it, and asked Edwards if he wanted "a bigger one." Edwards said yes and Rodney displayed a larger bag of marijuana. Edwards then identified himself and arrested Rodney. He searched Rodney and found 12 similar size bags of marijuana in his front left pants pocket.

Another Trolley Enforcement officer approached and identified himself to place McKnight under arrest. McKnight tried to escape from the officer but stopped and was cooperative when the officer told him not to run. The officer found the bag of marijuana in McKnight's front right pants pocket. McKnight refused to testify about the incident or his relationship with Rodney, asserting his Fifth Amendment right against self-incrimination.

Rodney was charged with one count of selling marijuana and one count of possession of marijuana for sale. The Honorable Federico Castro presided at the adjudication hearing. When the defense counsel called Rodney to the stand, the court would not allow Rodney to testify to what McKnight said to him, finding the statements to be inadmissible hearsay. The court stated "if [Rodney] testified to that effect, I would have to say that I do not believe him. He's not a credible witness and I will not believe what [Rodney] said that Mr. McKnight said to him."

Defense counsel argued the ruling destroyed Rodney's entire defense of duress or necessity by not allowing evidence of McKnight's threats to Rodney. The court replied, saying, "I'm telling you even if your client took the stand and testified, I would not believe him. I think your client would get up there and say those things about it . . . . . . . . . . I don't believe anything that you said to me that the client was going to testify is credible." When defense counsel commented his objections were preserved on the record, the court retorted "you can writ me or whatever you want to do. I can't go on hearsay that your client's going to testify that Mr. McKnight said this and that and so forth. No basis for it." Rodney was on the witness stand while the court made these remarks. The court finally allowed Rodney's testimony over the district attorney's objection:

"The Court: Go ahead and let him testify to what Mr. McKnight said to him.

"[Prosecutor]: He's not going to make any difference, your Honor.

"The Court: I already told [defense counsel] that I wouldn't believe anything this witness said."

Rodney testified he saw McKnight on the trolley on the night of November 23, 2005. McKnight asked Rodney to hold something, then gave him marijuana as they were about to get off the trolley. When Rodney protested, McKnight said "you're going to do it." McKnight told Rodney to sell all the marijuana or he would "F" him up. Rodney stated he took that to mean McKnight was going to beat him up. McKnight made no threats to hurt Rodney in the future and Rodney stated he did not see a weapon on McKnight. Rodney took the marijuana and acted out a skit he had planned with McKnight, pretending to sell him the marijuana. The court actively questioned Rodney throughout his testimony.

Defense counsel called Trolley Enforcement Officer Patrick Trampus to corroborate Rodney's testimony, saying "[t]he court has already stated on the record that it would not believe my client, anything my client said about this. So I'm offering Officer Trampus'[s] statement about what my client told him that night as a prior consistent statement." The court replied, "[l]et me put on the record, it won't make any difference." Trampus testified that on the night of the incident Rodney told officers McKnight gave him marijuana on the trolley and told him to sell it at the station. McKnight told Rodney there were many police officers at the stop and if Rodney got caught selling the marijuana, he would kill him.

The court decided the defense had not met the elements of duress and necessity. It found both counts true beyond a reasonable doubt. At the disposition hearing on January 26, 2006, Rodney was committed to the Juvenile Ranch Facility Drug Dormitory for a period not to exceed 120 days to be followed by probation and release on home supervision. The court imposed a fine of $60.00 (§ 730.5) and restitution in the amount of $50.00 (§ 730.6). No finding was made regarding Rodney's ability to pay the fine.

DISCUSSION

I

Rodney asserts the juvenile court's findings must be reversed because the judge's bias deprived him of his due process right to a fair hearing. The due process clause 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 [or her] particular case." (Bracey v. Gramley (1997) 520 U.S. 899, 904-905.) In implementing this right to a fair trial, courts have distinguished between two main sources of judicial bias. When bias against the defendant arises from extrajudicial sources, including a trial in which a judge stands to benefit personally from the outcome of the case or holds a preexisting bias against a class of people to which the defendant belongs, the judgment is reversible per se without regard to whether the trial was objectively fair. (Tumey v. State of Ohio (1927) 273 U.S. 510, 532, 535; Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 247.) However, when bias against the defendant arises from events that occur during the progress of the litigation rather than extrajudicial sources, the bias, in itself, does not violate due process. (Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 740.) Bias arising during the course of the proceedings is not reversible unless there is a substantial showing that the bias of the judge was so prejudicial it fundamentally impaired the fairness of the trial. (Ibid.)

Here, Judge Castro would not benefit personally from the outcome of the case. There is also no evidence to suggest he held a preexisting bias against a class of people to which Rodney belonged, such as juvenile defendants or drug dealers. Thus, no extrajudicial source of bias makes the findings reversible per se. Instead, we must ask whether the judge's behavior "rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." (Duckett v. Godinez, supra, 67 F.3d at p. 740.)

A judge's opinion formed during the course of the proceedings does not constitute bias that violates due process unless the judge displays such "deep-seated favoritism or antagonism that would make fair judgment impossible." (Liteky v. U.S. (1994) 510 U.S. 540, 555-556.) "In contested juvenile court proceedings, the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution require that 'not only must there be actual fairness in the hearing but there must also be the appearance of justice.' [Citations.]" (In re Jesse G. (2005) 128 Cal.App.4th 724, 729, italics added.) Code of Civil Procedure section 170.1, subdivision (a)(6) sets an objective standard to determine whether the appearance of justice is attained. It provides that a judge shall be disqualified if "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).)

Judge Castro's remarks display such bias and antagonism toward Rodney that fair judgment was impossible. While Rodney was on the stand, Judge Castro stated he would not believe anything Rodney said because he did not consider him a credible witness. He repeated "even if your client took the stand and testified, I would not believe him." After several remarks of this nature, Judge Castro finally allowed Rodney to present his defense; however, his comments had already destroyed any appearance of impartiality. A reasonable person present in the courtroom would not believe Judge Castro was impartial. Rather, one would assume he decided the case before hearing the evidence. The court's position that it would not believe anything Rodney said and that neither his testimony nor the testimony of corroborative witnesses would "make any difference" to the outcome destroyed both actual fairness and the appearance of justice.

The People contend the court simply performed its factfinding duty by judging the credibility of a witness. However, Judge Castro's statements occurred before Rodney testified. A court's determination of a witness's credibility should occur after hearing his or her testimony and evaluating it in the context of the other evidence. Here, the court determined Rodney was not credible and thereby decided the outcome of the case before hearing his testimony. The court's predetermination of credibility deprived Rodney of a fundamentally fair hearing.

The People also contend Rodney waived any claim of judicial bias or misconduct by not objecting in juvenile court. "As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on that ground at trial." (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) However, a defendant's failure to object does not waive the issue when objecting would be futile. (Ibid.) Sufficient evidence suggests objections by the defense counsel would have been futile in this case. Several discussions in the record substantiate the hostility between the defense counsel and Judge Castro. When defense counsel remarked that his objections had been preserved on the record, Judge Castro retorted "you can writ me or whatever you want to do." This response suggests the ineffectiveness of objections during the proceedings. On this record, we believe further objections by the defense counsel would have been futile, and possibly counterproductive, to Rodney. (See Sturm, at p. 1237.) Because the court's bias deprived Rodney of his due process right to a fair hearing before an impartial judge, the conviction must be reversed.

II

Although we reverse the court's true findings, we consider Rodney's additional appellate issues for the assistance of the trial court in the event of retrial.

A

Rodney contends the court erred by finding true both counts because possession of marijuana for sale is a lesser included offense of unlawfully selling marijuana. In California, although a single act or course of conduct can lead to multiple convictions, those multiple convictions cannot be based on necessarily included offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)

In the recent People v. Reed (2006) 38 Cal.4th 1224, the California Supreme Court concluded the statutory "elements test" is the proper method of determining whether a defendant may be convicted of multiple charged offenses. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) In other words, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (People v. Lopez (1998) 19 Cal.4th 282, 288.) We conclude that was not the case here.

Rodney was charged with both unlawful sale of marijuana (Health & Saf. Code, § 13560, subd. (a)), and possession of marijuana for sale (Health & Saf. Code, § 11359). A conviction for selling marijuana does not require proof of possession. (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524; see also CALCRIM No.2350 (2006 ed.) [elements of sale offense are (i) the defendant sold a controlled substance; (ii) the defendant knew of its presence; (iii) the defendant knew of the substance's nature or characteristic as a controlled substance; and (iv) the controlled substance was marijuana].) Because possession is not a required element of the sale offense, we conclude that possession for sale of marijuana is not a lesser included offense under the elements test. (See People v. Murphy (2005) 134 Cal.App.4th 1504, 1508 [for example, "one can broker a [sale] of a controlled substance that is within the exclusive possession of another"], disapproved on another ground in People v. Reed, supra, 38 Cal.4th at p. 1228.)

Additionally, although both charges arose from a single course of conduct, the facts that gave rise to each charge are distinct. Rodney was charged with the sale offense as a result of his attempt to sell a baggie of marijuana to Officer Edwards. The possession of marijuana for sale charge was based on the 12 additional bags of marijuana found in Rodney's pocket when Officer Edwards conducted a pat-down search after arresting him. Thus, one offense is not a lesser included offense of the other. (See People v. Peregrina-Larios, supra, 22 Cal.App.4th at p. 1524 ["He sold a portion of his inventory and had the balance on his person when arrested; under these facts, he properly could have been charged and convicted of both sale and possession (or possession for sale)."].)

B

Rodney contends the $60.00 fine imposed under section 730.5 must be stricken because the court did not find he had the ability to pay the fine. Section 730.5 states: "[w]hen a minor is adjudged a ward of the court on the ground that he or she is a person described in Section 602, . . . the court may levy a fine against the minor up to the amount that could be imposed on an adult for the same offense, if the court finds that the minor has the financial ability to pay the fine." (Italics added.) A fine may not be imposed under this section without a finding of ability to pay. (See In re Steven F. (1994) 21 Cal.App.4th 1070, 1078 [if a fine is imposed under section 730.5, that section by its terms requires the court to first find the minor has the ability to pay the fine].)

The People contend the issue is waived because Rodney did not object to the fine at the disposition hearing. As a general rule, claims not raised and preserved by the parties are waived on appeal. (People v. Scott (1994) 9 Cal.4th 331, 348-353.) However, an appellant may challenge the sentence on a claim not raised at trial when the court exceeds its statutory authority and imposes a sentence that could not lawfully be imposed under any circumstances in the particular case. (Id. at p. 354.) Here, the court had no statutory authority to impose a section 730.5 fine without a finding of Rodney's ability to pay. Thus, the matter was not waived, and remains subject to review on appeal.

III

During oral argument in this case the issue of whether the appeal is moot was raised. The record on appeal was augmented to include the juvenile court's minutes dated August 3, 2006, which state:

"The minor has successfully complied with his/her conditions of probation.

"The entire petition is dismissed.

"Jurisdiction is terminated."

The parties submitted supplemental briefs addressing whether these finding and orders issued pending appeal made the appeal moot.

We conclude the appeal is not moot. There has been no juvenile court order setting aside the true findings (§ 782) or vacating the $60.00 fine imposed under section 730.5, which we find was improperly imposed.

DISPOSITION

The judgment is reversed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Health and Safety Code section 11360, subdivision (a) prohibits an offer to sell marijuana as well as sale of marijuana.