P. v. Hyde

Filed 1/29/07 P. v. Hyde CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

On August 23, 2005, a jury convicted Thomas Dwayne Hyde (appellant) of two counts of second degree robbery (Pen. Code,  211) and found true that appellant had inflicted great bodily injury in connection with the first count (Pen. Code,  12022.7, subd. (a)). Appellant admitted the allegations relating to his prior convictions. The court sentenced appellant to a total of 21 years in prison.

On appeal, appellant contends that: (1) the judge who handled the case was not impartial; (2) the court erred in refusing to give a jury instruction on receiving stolen property; and (3) the court improperly relied on the same facts to impose both an aggravated term and a sentencing enhancement. We affirm.

II.

Procedural Background

The charges against appellant arose from a pair of robberies that occurred on December 11, 2002. The first robbery, of Deborah Ferrin, took place at an apartment building in Oakland at about 5:20 p.m., and the second, of Rosemary Buell, took place at about 9:00 p.m. in the parking lot of a Kmart in San Leandro.

On December 31, 2003, appellant was charged by information with two counts of second degree robbery (Pen. Code,  211), with one enhancement alleged for the infliction of great bodily injury (Pen. Code,  12022.7, subd. (a)). A prior strike enhancement was also alleged (Pen. Code,  1170.12, subd. (c)(1), 667, subd. (e)(1)), as were two prior prison term enhancements (Pen. Code,  667.5, subd. (b)). Appellant pled not guilty. On May 4, 2005, the Alameda County District Attorney amended the information to allege that one of appellants prior convictions was a serious felony.

As stated previously, on August 23, 2005, a jury convicted appellant of both counts of robbery and found true that appellant had inflicted great bodily injury in connection with one count. On September 21, 2005, the court sentenced appellant to 21 years in prison. Appellant filed a timely notice of appeal on October 4, 2005.

III.

DISCUSSION

A.

The Courts Impartiality

During pretrial motions, appellant orally challenged the trial judge under Code of Civil Procedure section 170.1, subdivision (a)(6)(iii), alleging the court was failing to act impartially.[1] Later the same day, appellant filed a written version of the challenge, which alleged among other things that the court had: (1) used an Internet database to conduct an unsuccessful search for Ms. Ferrin; (2) suggested that the prosecutor amend the information in a manner that could increase appellants sentence; and (3) asked the prosecutor whether Ms. Buell was old enough to allow the imposition of an elder great bodily injury enhancement on appellant. A hearing was held on appellants challenge, with a second judge reviewing and denying appellants challenge to the impartiality of the trial court. Later during trial, appellant claims the trial judge committed additional acts of misconduct further demonstrating his lack of impartiality.

On appeal, a claim that a trial judge is biased must be based on constitutional rather than statutory grounds. (People v. Chatman (2006) 38 Cal.4th 344, 362 (Chatman); see Code Civ. Proc.,  170.3, subd. (d).) Such a claim typically will allege that a judges behavior has violated the due process clause of the Fourteenth Amendment by denying 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. [Citation.] (Chatman, supra, 38 Cal.4th at p. 363.) However, an appellant may be able to show a constitutional violation under certain circumstances even in the absence of actual judicial bias. (See Aetna Life Insurance Co. v. Lavoie (1986) 475 U.S. 813, 825.) The Due Process Clause 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. . . . [Citation.] (Ibid.)

The United States Supreme Court has not articulated with precision the standard for determining when the appearance of bias rises to the level of a due process violation. However, the circuit courts have suggested that such an appearance of bias violates the Fourteenth Amendment if it is so severe as to create a  conclusive presumption of actual bias. [Citation.] (Fero v. Kerby (10th Cir. 1994) 39 F.3d 1462, 1478; Getsy v. Mitchell (6th Cir. 2006) 456 F.3d 575, 594.) [T]he issue is . . . whether there was an appearance of impropriety which rose to the level of a fundamental defect resulting in a complete miscarriage of justice.  (U.S. v. Couch (5th Cir. 1990) 896 F.2d 78, 81 (Couch).) Though Couch also stated the somewhat broader proposition that due process may require[] a judge to step aside when a reasonable judge would find it necessary to do so (id. at p. 82), it did so while discussing the actions of a judge who had failed to disclose substantial financial ties to a defendant. (Id. at pp. 79-80.) The court went on to explain that unless comparable evidence strongly suggests the possibility of a miscarriage of justice,[2] the mere appearance of bias is not cognizable as a constitutional violation. (See id. at p. 81 [in the absence of a severe defect, appearance of bias would not be cognizable on habeas corpus review because it would not suggest a complete miscarriage of justice].)

Appellant argues that the trial courts aggregate misconduct here was so improper that it created a conclusive presumption of actual bias, in violation of appellants right to due process, and that appellant should prevail under any of these formulations, including the conclusive presumption test. We examine these allegations of misconduct below.

1.      The search for a prosecution witness.

On May 3, 2005, during a pretrial meeting with the parties held in chambers, the court discussed the whereabouts of Ms. Ferrin, the robbery victim and prosecution witness who had testified at the preliminary hearing but who was now believed to be living in the State of Georgia. The parties discussed the fact that, if Ms. Ferrin could not be located, a due diligence hearing would be needed before her prior testimony could be admitted at trial. In response to this discussion, the judge informed the parties that he had recently learned of an Internet website that was an unusually effective tool for locating people. The court did not identify the name of the site, but in the presence of both parties, carried out a search for Ms. Ferrin using this website, which failed to locate her.

Appellant emphasizes that the actual due diligence hearing, during which it would unquestionably have been appropriate to inquire into the whereabouts of Ms. Ferrin, was not to be held until at least a week following the scheduling conference. Therefore, the courts web search for Ms. Ferrin did not occur during a due diligence hearing, and was an improper effort to assist the prosecution. Regardless of when the due diligence hearing was to take place, however, the court was obliged to evaluate the prosecutions efforts to locate the witness before allowing her testimony from the preliminary hearing to be admitted. (See Evid. Code,  240, subd. (a)(5); People v. Cromer (2001) 24 Cal.4th 889, 897 [noting that a witness is not unavailable for purposes of the right of confrontation unless the prosecutorial authorities have made a good-faith effort to obtain [the witnesss] presence at trial. [Citations.]].) A reasonable interpretation of what transpired is that the court simply was trying to make the parties aware of modern technological tools that were now available, the use of which could be relevant to the due diligence inquiry. Given this apparent purpose, the action did not improperly invade the prosecutorial function.

Appellant cites People v. Handcock (1983) 145 Cal.App.3d Supp. 25, 32 (Handcock) for the proposition that a courts research into the location of a witness may constitute a due process violation. In Handcock, a judge presiding over a trial involving a hit-and-run auto accident conducted his own investigation into what occurred and then called witnesses to present the results of his investigation to the jury. (Id. at p. 27.) The reviewing court concluded that the judge had abused his discretion both in the manner in which he called his witness and in conducting the investigation. (Id. at pp. 29, 32.)

Handcock fails, on three levels, to support appellants case. First, the use of the Internet to demonstrate its capabilities to assist in finding witnesses is not the least bit similar in scope and degree to the active investigation and calling of witnesses at issue in Handcock, rendering that case inapposite. Second, the actions of the court in appellants case took place outside the presence of the jury, unlike the actions of the Handcock court. Nothing in the courts effort to locate Ms. Ferrin would have transmitt[ed] to the jury the unmistakable message that he did not believe the defendants story . . . . (Handcock, supra, 145 Cal.App.3d at p. Supp. 31.) Nor did the courts actions disrupt the orderly presentation of the defendants case or preven[t] either counsel from adequately preparing for questioning or from more fully exploring the ramifications of what the judge sought to admit as evidence. (Ibid.) The courts action had no effect on the tactics of either side or their ability to argue their case to the jury. Last, even if we were to conclude that the courts actions were analogous to those in Handcock, the holding of that case was that the court had abused its discretion by investigating the accident and calling witnesses. (Id. at p. 29.) Handcock did not suggest, however, that the judges actions in that case constituted a constitutional violation. Therefore, even if the court was considered to have been carrying out an investigative act, Handcock does not support appellants assertion that such an act constitutes a violation of the Fourteenth Amendment.

2.      The discussion of the need to amend the information and the possibility of an elder victim enhancement.

During a pretrial settlement discussion on May 2, the court informed the parties that their shared assumptions regarding appellants maximum sentence exposure did not correspond to the way the offenses had been charged in the information. Appellants counsel stated during this discussion that both parties believed appellants maximum exposure was 22, 23 years, a figure that assumed an enhancement for a prior serious felony conviction. The court noted, however, that the information failed to plead appellants prior conviction as a serious felony under Penal Code section 667, subdivision (a)(1), and consequently would not support that sentence. The following morning, the court asked the prosecutor whether he had filed an amended information. The prosecutor replied that he had not yet filed the amended information, but that he would do so that afternoon. Later the same day, the court referred to the fact that the prosecutor would be seeking to amend the information and noted, I expect that that amended information is going to be permitted.

Additionally, on May 3, the court asked both counsel a question in chambers about the age at which the elder victim sentencing enhancement clause would apply under Penal Code section 12022.7, subdivision (c). The district attorney replied that the elder victim enhancement applies to individuals age 65 and older,[3] and therefore did not apply to the case of Ms. Buell, who was 64 at the time of the robbery.

Neither of these actions created a conclusive presumption of bias. It is certainly correct, as petitioner notes, that advocating a harsher charge may undercut judicial impartiality. (Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 535 (Ryan).) However, the courts action here was not comparable to the type of advocacy seen in Ryan, where the judge called a district attorney ex parte and urged him to pursue a crime as a felony rather than a misdemeanor. (Id. at p. 535.) Though the court here did refer to the amendment of the information several times, it did so in the context of informing appellant about events that would take place in his absence, and in determining whether the expected amendment to the information had been filed. Under the circumstances, it is a mischaracterization to liken these comments to the type of advocacy decried in Ryan. Similarly, the question regarding the elder victim enhancement was not an act of advocacy for any particular position but an attempt to clarify the law that applied to the robbery of Ms. Buell. Therefore, these actions did not deny petitioners right to due process.

3.      The questioning of prosecution witnesses.

During trial, the court intervened in the questioning of two prosecution witnesses. The court questioned Ms. Buell about her use of the term farsighted to describe the quality of her eyesight, and asked her to describe the manner in which her purse had been taken. The court also attempted to focus the voir dire of Leo Nishio, a Wal-Mart senior technical engineer who authenticated business records indicating Ms. Buells credit card was used on a Wal-Mart website after it was stolen. The court sought to direct the voir dire toward the issue of Mr. Nishios trustworthiness and the foundation for his testimony concerning the Wal-Mart records. Unable to obtain satisfactory answers on this point, the court asked several questions of Mr. Nishio intended to clarify the nature of his anticipated testimony.

Additionally, the court denied appellants objection to the admission of testimony from Ms. Buell as to her ability to walk prior to sustaining injuries in the robbery. Immediately before making this ruling, the court asked a question of appellants counsel in front of the jury: [H]ow is this [description of Ms. Buells injuries] not relevant, and how is this not part of showing the elements of [great bodily injury]?

None of these actions created a conclusive presumption of bias. When a witness gives answers that are incomplete or unclear, as Ms. Buell did with regard to the quality of her eyesight, it is entirely proper for the court to intervene in order to aid in the elicitation of clear and comprehensive testimony. (People v. Campbell (1958) 162 Cal.App.2d 776, 787 (Campbell).) The courts handling of the voir dire of Mr. Nishio, similarly, was entirely reasonable. By intervening in the voir dire to address a concern that the court had raised sua sponte, the court actually subjected Mr. Nishio to a more rigorous examination than would otherwise have occurred. The court also heard and discussed the defenses objections[4] to the testimony Mr. Nishio planned to offer, and the court did not, contrary to appellants assertions, disparag[e] defense counsels ability. In fact, the court both summarized the elements of Evidence Code section 1271 for appellant and assisted him in reframing his initially meritless objection to Mr. Nishios testimony. This was not an effort to demean appellant, but rather an effort to conduct a voir dire that thoroughly addressed the relevant evidentiary issues.

The courts treatment of appellants objection to Ms. Buells great bodily injury testimony also was not improper. Its discussion of the elements of a great bodily injury sentencing enhancement, and the relevance of Ms. Buells injuries to that enhancement, did not communicate to the jury a complete rejection of the defense to the great bodily injury enhancement, as appellant suggests. While the courts question may have suggested that the court considered those injuries to be relevant in deciding whether Ms. Buell had suffered a great bodily injury, the jury likely drew the same conclusion from the fact that the court overruled appellants objection on this ground.

Contrary to appellants assertion, none of the actions taken by the court support[ed] the character of the witnesses or in any other way suggested that the court was allied with the prosecution, unlike in People v. Frank (1925) 71 Cal.App. 575, 583 (Frank), a case relied on by appellant. In Frank, the court thanked prosecution witnesses in front of the jury for their patriotism and high standard of citizenship in traveling to testify, a comment that was both irrelevant to the subject matter of the testimony and, of course, considerably more likely to affect the jury than were the courts routine factual inquiries and evidentiary rulings here. (Id. at p. 579.)

Appellant argues that even if none of these individual acts rise to the level of impropriety on their own, the courts repeated participation in the prosecutions case demonstrated its lack of impartiality. Appellant cites no case holding that several judicial actions, each one admittedly insufficient in itself, may aggregate to a violation of the Fourteenth Amendment. Campbell, supra, 162 Cal.App.2d 776, the one case appellant does mention, is instructive, but does not assist appellant. In Campbell, the trial judge interrupted the district attorneys examination of prosecution witnesses more than 15 times to ask questions that were calculated to and did elicit testimony seriously adverse to the defendant. (Id. at p. 786.) Additionally, the court cross-examined witnesses for the defendant in a manner that was abrupt and critical, a technique that was certain to have been harmful to the defense. (Id. at pp. 786-787.) In spite of this finding, the appellate court concluded that no miscarriage of justice had occurred. (Id. at p. 788.) Here, where the courts actions were far more innocuous and far less prejudicial than those in Campbell, there certainly was not a miscarriage of justice. The courts actions did not establish a conclusive presumption of actual bias, and were therefore not a violation of appellants right to due process.

B.

The Jury Instruction on Receiving Stolen Property

Appellant argued at trial that the court should instruct the jury on receiving stolen property as a lesser included offense of robbery. However, appellant conceded both that the court had no sua sponte duty to so instruct, and that no case law held otherwise. Appellant suggested that the court simply had the legal authority to give [the instruction] upon request, if the facts could support it.

Appellant now contends that the trial court erred in not instructing the jury on the crime of receiving stolen property sua sponte. Even if there was no sua sponte duty, he alternatively claims the court erred in refusing to give the instruction in response to defense counsels request. He argues that this error was prejudicial because it was reasonably probable that the jury would have come to a different result if it had been provided with the instruction.

As a preliminary matter, appellant explicitly waived the sua sponte instruction argument by conceding that the court had no duty to give the instruction. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13-14, fn. 6 [New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal. [Citation.]].) In any event, the court did not err, either in not instructing the jury sua sponte or in refusing the defense request for the instruction, because we conclude that receiving stolen property is not a lesser included offense of robbery.

The elements of robbery, which the court presented to the jury through CALJIC No. 9.40, are: (1) A person had possession of property of some value, however slight; (2) the property was taken from that person or from his or her immediate presence; (3) the property was taken against the will of that person; (4) the taking was accomplished either by force or fear; and (5) the property was taken with the specific intent permanently to deprive that person of the property.

The elements of receiving stolen property are: (1) a person bought, received, withheld, sold, concealed or aided in concealing or withholding property that had been stolen or obtained by theft or extortion; and (2) the person knew, at the time of committing this action, that the property had been stolen or obtained by theft or extortion. (CALJIC No. 14.65.)

One crime is a lesser included offense of another when either the elements of the greater offense or the facts alleged in the accusatory pleading for that offense necessarily include all the elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).) Under the element-comparison analysis, receiving stolen property is not a lesser offense of second degree robbery, because the elements of the former are not included in the latter. Division One of this court has previously concluded that receiving stolen property is not a lesser included offense of robbery. (People v. Mora (1956) 139 Cal.App.2d 266, 274.) We agree with the reasoning of that decision and follow it here.

The factual-pleading prong of the Birks test also cuts against appellant. The facts alleged in the accusatory pleading against appellant stated that he did unlawfully, and by means of force and fear take personal property from the person, possession, and immediate presence of [the victim]. Such facts do not suggest that appellant bought, received, withheld, sold or concealed anything. Under either the elements-comparison test or the factual pleading test, then, receiving stolen property should not have been treated as a lesser included offense of robbery in this case.

Appellant argues for the first time on appeal that the courts analysis in Mora is no longer valid in light of the 1992 amendment to Penal Code section 496, which refers to the offense of receiving stolen property. By that amendment, the Legislature added the following language to section 496: A principal in the actual theft of the property may be convicted pursuant to this section. However, no person may be convicted both pursuant to this section and of the theft of the same property. (Stats. 1992, ch. 1146,  1, p. 5374.) Appellant argues that the addition of this language recognizes that theft and receiving stolen property are so closely intertwined that dual convictions for both offenses is not permissible. (Fn. omitted.) Therefore, receiving stolen property must be a lesser included offense of theftand, by extension, of robbery as well.

We disagree. Appellants argument infers a legislative intent in modifying section 496 that is not supported by the history of that amendment. As the California Supreme Court explained in People v. Allen (1999) 21 Cal.4th 846, 857, the 1992 amendment was an effort to eliminate the common law rule that a person could not be both the thief and the receiver of the same property. That rule had allowed defendants to escape conviction for receiving stolen goods in situations where the prosecution failed to show that the defendant was not the thief. (Id. at p. 853.) The first sentence of the 1992 amendment effectively abrogate[d] this rule, while the second sentence of the amendment re-affirmed the rule preventing dual convictions for theft of property and receiving the same property. (Id. at p. 857.) The amendment thereby made it easier for prosecutors to prove a case of receiving stolen goods both because a defendant could be convicted even if he or she was involved in the theft, and the case could be brought even when the statute of limitations would otherwise have expired.[5] (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3326 (1991-1992 Reg. Sess.) as amended Mar. 31, 1992, p. 2.)

What the 1992 amendment did not do, however, was redefine receiving stolen property in a way that would make it a lesser included offense of theft or burglary. The amendment did not change the elements of any of these offenses. Nor did the amendment make it possible to convict an individual of receiving stolen property under the statute for theft. Therefore, receiving stolen property is not a lesser included offense of theft. Accordingly, the court did not err in failing or refusing to instruct the jury on receiving stolen property.

C.

Sentencing Error

At sentencing, the court found no factors in mitigation and three factors in aggravation: (1) appellant was on parole at the time of his offense, (2) he had previously performed poorly on probation and parole, and (3) his prior offenses were numerous or increasing in seriousness. Appellant admitted his prior convictions, which included burglary, felony theft, petty theft with a prior, robbery (a strike prior), transportation of a controlled substance, and two counts of unlawful taking of a vehicle. Taking those factors into consideration, the court imposed 10 years for the robbery of Ms. Buellthe aggravated term of five years, doubled because of appellants prior admitted strike conviction. It also imposed a consecutive three-year term for appellants having caused great bodily injury to Ms. Buell. The court imposed a consecutive two-year sentence for the robbery of Ms. Ferrinone-third the three-year robbery midterm, doubled because of the strike. Additionally, the court imposed consecutive terms of five years and one year, respectively, for the serious felony and prior prison term enhancements. The sentence totaled 21 years of imprisonment.

Although the sentence imposed by the court was less than the sentence appellants counsel thought was possible, appellant contends on appeal that it was actually error for the court both to enhance his sentence based on his prior convictions and to aggravate the sentence imposed for the robbery of Ms. Buell.

A court may both use a prior conviction to enhance a sentence and consider the fact that a defendant is on parole for the same conviction in aggravating the sentence. (People v. Knowlden (1985) 171 Cal.App.3d 1052, 1059 [rejecting the argument that the use of Knowldens parole status at the time of the offense for his midterm burglary sentence, and the use of a prior conviction for its enhancement, constituted a forbidden dual use of facts]; People v. Jerome (1984) 160 Cal.App.3d 1087, 1098-1099 [no dual use of facts when sentence enhanced based on prior rape conviction and aggravated based on the defendants status as parolee from that conviction].) Thus, it is not a dual use of facts to consider ones performance on parole notwithstanding consideration of the underlying conviction as an enhancement. [Citation.] (People v. Whitten (1994) 22 Cal.App.4th 1761, 1767.)

Appellant cites People v.Calhoun (1981) 125 Cal.App.3d 731, 734 (Calhoun), for the proposition that an individuals poor performance while on parole for a conviction is factually indistinguishable from his service of the prison sentence for that conviction. Therefore, it is an improper dual use of facts to aggravate a sentence based on a defendants poor performance on parole in any case where the court also enhances a sentence based on the underlying conviction which led to the parole status. However, Calhoun cannot be read so broadly.

In that case, Calhoun committed a robbery in 1974 while on probation. (Calhoun, supra, 125 Cal.App.3d at p. 733.) He was convicted, and served a prison term. (Ibid.) At sentencing for a later robbery committed in 1978, the court aggravated Calhouns sentence for having previously performed poorly on probation by committing the 1974 robbery. Additionally, the court enhanced Calhouns sentence for having served the prison term for the 1974 robbery. (Id. at p. 734.) The reviewing court noted that the earlier offense was the only possible reason Calhouns performance on probation was unsatisfactory. (Id. at p. 733.) For this reason, the use of Calhouns probation performance was factually indistinguishable from the conduct which led to his 1974 robbery conviction and subsequent prison term. Therefore, both could not be used to enhance his sentence for a later crime. (Id. at p. 734.)

Calhoun differs importantly in that here appellants poor performance on parole resulted in the commission of the crimes for which he is currently charged. He has not had his sentence aggravated because of his poor performance on parole culminating in a prior conviction which itself was used to enhance his current sentence. Instead, the poor performance was established by the very robberies that were at issue in the trial. As the court noted in its discussion of aggravating factors, at the time of this offense [appellant] was on parole, and while on parole, he committed these offenses. I think thats compelling.

People v. Coleman (1989) 48 Cal.3d 112, 164 (Coleman), which appellant also cites, addressed the use of an enhancement based on a prior conviction and aggravation based on serving a prison term for the same conviction. Once again we emphasize that these facts are dissimilar to the sentencing which occurred in this case, making Coleman inapplicable.[6]

Finally, even if the finding of appellants poor performance on parole could not serve as a basis to aggravate his robbery sentence, the court was legally justified in aggravating the sentence after concluding that appellants prior convictions, excluding the convictions used to enhance his sentence, were numerous or increasing in seriousness. Appellant had five prior adult convictions in addition to the 1992 and 1998 offenses, as well as three sustained juvenile petitions. Even if these offenses were not clearly increasing in severity, they were unquestionably numerous. Because California Rules of Court, rule 4.421(b)(2) is written disjunctively, allowing an aggravating factor to be found if the defendants convictions are numerous or increasing in severity, this extensive criminal history meets the requirements of the statute.

Of course, it is settled law that an aggravated prison sentence need not be reversed so long as it is supported by at least one valid factor relied on by the court. (People v. Covino (1980) 100 Cal.App.3d 660, 670.)

IV.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] The record indicates that appellant cited Code of Civil Procedure section 170.1, subdivision (a)(6)(C), but no such code section exists. Appellant was clearly referring to section 170.1, subdivision (a)(6)(iii).

[2] Additional circumstances the Supreme Court has cited as suggesting a probability of unfairness include a judge hearing his own case or try[ing] cases where he has an interest in the outcome. (In re Murchison (1955) 349 U.S. 133, 136.) The probability of actual bias may also be too high in situations in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him. (Withrow v. Larkin (1975) 421 U.S. 35, 47, fns. omitted.) Other circumstances, of course, may also rise to the level of suggesting actual bias, but they must be comparable in terms of their seriousness in order to trigger a due process concern.

[3] In fact, the enhancement applies to great bodily injuries inflicted on individuals who are 70 years of age or older. (Pen. Code,  12022.7, subd. (c).)

[4] Appellants objection to Mr. Nishios testimony was initially that Mr. Nishio would be speaking about Wal-Marts electronic records, which appellant argued had not been made by a custodian. After being informed by the court that the records did not need to be made by a custodian of records, appellant argued that the records were not a record of an act, condition or event made in the regular course of business. Appellant emphasized that the records Mr. Nishio planned to discuss were recently created screenshots. The court acknowledged appellants argument that there was a difference between a computer memorializing in zeroes and ones and the ultimate result when you retrieve it . . . in alpha characters, but overruled the objection.

[5] Unlike the theft statute, the statute of limitations for receiving stolen property only begins to run when the defendants possession of the stolen item is reasonably discoverable.

[6] When Coleman was resentenced, the trial court both applied a three-year enhancement for a prior violent felony and not[ed], as a factor in aggravation, that defendant was on parole at the time of the rape. Thus the trial court properly avoided the dual use of facts . . . . (Coleman, supra, 53 Cal.3d at p. 954.)