People v. Wong CA4/1

Filed 3/20/15 P. v. Wong CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064689

Plaintiff and Respondent,

v. (Super. Ct. No. SCE318915)

MARK ALLEN WONG,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Patricia K.

Cookson; John M. Thompson, Judges. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and

Respondent.

A jury convicted Mark Wong of multiple lewd act offenses against his two minor

daughters, with true findings that he engaged in substantial sexual conduct with the two
girls. The court imposed a sentence of 75 years to life. On appeal, Wong contends: (1)

the court erred in denying his motion for self-representation; and (2) the judgment must

be reversed because the court posed questions to a prosecution witness (one of Wong's

daughters). These contentions are without merit. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Wong raised two of his daughters as a single parent; their mother died when the

youngest was an infant. In February 2012, when the daughters were about 11 and 13, the

younger daughter (D2) told a social worker at her elementary school that her father had

sexually molested her a few days earlier. After an investigation it was discovered that

Wong had been molesting the girls for many years.

At trial, both girls testified about details of the abuse.1 D2 said the molestation

had occurred at least once a week for years and included digital penetration. Wong once

held her down on the floor and put his penis into (or on) her anus, causing extreme pain

and resulting in her throwing up and feeling burning on her bottom. She testified about

details and dates of various other incidents.

The older daughter (D1) was extremely emotional and cried during most of her

testimony. But she described that Wong had molested her numerous times from

kindergarten through seventh grade, and provided some specifics. According to her

1 Because Wong does not challenge the sufficiency of the evidence to support the
jury's findings, we need not detail the testimony here. We have reviewed the entire
record and are familiar with the evidence presented, as graphically described in the
Attorney General's appellate brief.
2
testimony, the molestations included Wong touching her vagina with his hand, mouth,

and penis.

Wong's former wife (the girls' former stepmother) and his former girlfriend also

testified. The girls had not disclosed the abuse to these women. But the former girlfriend

recalled that Wong had once badgered D1 because he thought neighbors were

questioning her about being touched inappropriately. The former girlfriend also recalled

Wong making statements about the girls' genitalia (when they were preteens), and

admitting he had "rubbed" one girl's "private part" over her clothing. Both women said

they terminated their relationships with Wong because of his alcohol abuse.

A forensic interviewer testified about behaviors common among children who

have been the victims of sexual abuse, including delayed reporting, minimization of the

extent or frequency of the abuse, incremental disclosure, and accommodation of the

abuse.

A sexual assault examination of D2 revealed evidence of a laceration or abrasion,

and some bruising. These findings could be consistent with the reported sexual abuse,

but were not necessarily evidence of the abuse.

Wong did not testify or present any affirmative evidence. During closing

argument, his counsel emphasized the lack of physical evidence supporting the charges.

Defense counsel also suggested the daughters had falsely accused Wong because one

daughter was angry over her cell phone being taken away and both girls were "tired" of

living with their father because he had a "drinking problem" and they moved frequently.

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 Based on the evidence presented, the jury found Wong guilty of the 11 charged

counts of committing a lewd act upon a child. (Pen. Code, § 288a.) As to each girl, the

counts covered the periods: (1) January 1, 2010 through February 20, 2012; (2) August

1, 2009 through December 31, 2010; and (3) January 1, 2004 through March 1, 2006. On

each count, the jury found Wong had substantial sexual conduct with a child under 14

years, and that he committed the offense against more than one victim. (Pen. Code,

§§ 1203.066, subd. (a)(8), 667.61, subds. (b), (c), (e).)

DISCUSSION

I. Denial of Self-Representation Motion

About two months before trial was scheduled to begin, Wong requested

permission to represent himself. After taking the motion under consideration, the court

(Judge John Thompson) denied the motion based on its conclusion that Wong would

engage in "unacceptably disruptive" behavior during trial and this conduct would

preclude a fair trial. The court based its factual conclusion on its review of the

preliminary hearing transcript and its own observations of Wong at pretrial proceedings.

Wong contends the court's denial of his motion violated his constitutional self-

representation right. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) In evaluating

this contention, we first summarize Wong's conduct at the preliminary hearing, and then

set forth the additional facts before the court when it ruled on Wong's motion. We then

describe the court's ruling and the reasons given for the ruling. Lastly, we discuss the

applicable legal principles and explain our conclusion that the court did not abuse its

discretion in denying the Faretta motion.

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 A. Preliminary Hearing

In August 2012, Judge Lantz Lewis presided over Wong's preliminary hearing.

D2 (age 12) was the first witness to testify. As she was being sworn in, defendant loudly

said a word ("Raven") that appeared to startle D2. D2 began crying and had to be taken

outside. The court and the bailiff admonished defendant not to "speak audibly."

Defendant apologized. After talking with D2, the prosecutor told the court that D2 was

now asking whether her grandmother could sit next to her as a support person. As the

court was ruling on this request, Wong volunteered "There's no proof. I don't understand

why we're here." When the court attempted to address this statement, Wong interrupted

again.

At that point, defense counsel (Marissa Remiker) asked to institute proceedings

under Penal Code section 1368 to determine whether Wong was competent to stand trial.

When Wong kept talking, denying he had committed any criminal acts and indicating that

his daughter's accusations were "over a cell phone," the court ordered him taken out of

the courtroom. The court stated: "This is intentionally acting out in the presence of the

first witness," and ordered the parties to take a five-minute "cooling-off period."

After the recess, Wong was brought back into the courtroom, and the court stated

that after Wong was ordered not to talk audibly, he began speaking "in a very loud voice"

that was "very disruptive." The court made clear it would not tolerate another outburst.

Wong assured the court that he could comply with this directive.

Defense counsel then expressed concern that Wong was not capable of assisting in

his defense "because of his somewhat delusional behavior, his sudden outbursts, his

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inability to control himself sometimes, and his somewhat hostility towards me." She said

his behavior appears to be the result of a form of mental illness: "I think there are times

that Mr. Wong is perfectly willing to speak with me, is rational, understands the nature of

what is going on, is able to speak with me clearly, professionally, and then within five

minutes, this sudden outburst occurs. This was something that was completely

unexpected. We had talked about the proceedings, not to speak. I was reassured. I was

completely blown away that this behavior would even occur. [¶] I received repetitive

messages, almost escalating in somewhat delusional behavior, and that is my concern,

Your Honor. Quite frankly, they [have] escalate[d] in terms of more accusatory."

After Wong responded by assuring the court he understood the proceedings, the

court held a brief Marsden2 hearing, during which Wong expressed a willingness to

continue to be represented by his current defense counsel. The court thereafter denied the

Penal Code section 1368 motion, finding the evidence did not show Wong's

incompetency, and stated Wong "has apologized to the court and has indicated he will be

communicating with this attorney quietly."

During the remaining portion of D2's testimony, Wong abided by the court's

admonition. However, during D1's testimony, defendant again made very loud and

intimidating comments, which appeared to substantially frighten his daughter. These

comments came just as D1 was testifying about a particularly difficult incident:

"Q When he touched your front private with his mouth, did he do it over
your clothes or under your clothes?

2 People v. Marsden (1970) 2 Cal.3d 118.
6
"A Under.

"The Defendant: Why don't we talk about how [the girls' aunt] molested
[D2]? I never said anything bad about—I never have. I never said
anything. They're not going to divide us.

"The Court: Mr. Wong. [¶] Remove him from the courtroom.

"The Defendant: They're not going to say that my daughters—I never said
anything bad about my daughters, and I'm not going to allow the court to
break us up. I love you girls. [The girls' aunt]? Tell them how [the aunt]
molested [D2].

"(The defendant leaves the courtroom.)

"The Court: What we're going to do for a moment, if it's okay, [D1], I'm
going to ask you to step outside just for a second. But I need to talk to the
attorneys just for a moment, [D1]. It won't be long.

"(The witness leaves the courtroom.)

"The Court: Counsel, my observations are such that the statements of Mr.
Wong are intended to intimidate the witness. He was loud. He did not
respond to the bailiff's request to stop. He didn't respond to my request to
stop. Counsel, Ms. Remiker, attempted to get him to stop. It had a
dramatic effect on the witness. I had warned him if there was another
outburst that he would be removed. So he has been removed. [¶] Ms.
Remiker, would you like to add anything to the record?

"Ms. Remiker: No.

"The Court: Anything from the People?

"[Prosecutor]: No, thank you, Your Honor.

"The Court: And I'm going to ask you, if you would, just to have [D1] step
back in."

"[Prosecutor]: Thank you. [¶] Your Honor, may she have a moment?
She's just composing herself."

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 For her remaining testimony, D1 was more hesitant and her answers were

primarily limited to one-word answers. She was not sure of the answers to many of the

questions. At times, the court and counsel could not hear her answers.

After the prosecution completed its case and defense counsel indicated Wong

would not be presenting any affirmative evidence, the court stated it wanted to place on

the record its observations about the events that occurred regarding Wong's conduct:

"The Court: . . . . My observations were that as the first witness,
[D2], entered the courtroom, she was either sworn or about to be
sworn, Mr. Wong, in a very loud and aggressive voice, started
communicating, and it appeared the communications were in part
directed towards her. My observations were that she immediately
lost her composure, turned away, and seemed stunned. [¶] I
admonished Mr. Wong to stop. The bailiff admonished him and
approached him, and I believe Ms. Remiker admonished him as
well. He would not cease his communication and was excluded at
that point from the courtroom. [¶] Ms. Remiker, this may not be
consistent with what you observed, and if you would like to correct
the record or add something, now would be the time to do that.

"Ms. Remiker: I don't know if his tone necessarily was aggressive.
It was extremely loud. I do agree with the Court that he did
address—was addressing specifically his daughter while we were all
present selling hello and other things and some type of a nickname
or something that I never heard him say or referenced at all in the
police report. I wouldn't necessarily have characterized it as
aggressive. But I do agree that it was very loud.

"The Court: Would the People like to add anything to the record or
correct my summary of what I believed occurred?

"[Prosecutor]: Your Honor, I'll echo what the Court said later in his
comments about Mr. Wong's comments to [D1], that while they may
not have been overtly aggressive, they were, in their nature, meant to
intimidate, and I believe the statements made to [D2] when she
walked in the courtroom were those in nature as well. They were
meant to intimidate her, whether psychologically. It may not have
been overtly aggressive or threatening in their nature, but

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 psychologically, they were meant to intimidate, both the minor
witnesses in the courtroom."

The court then held Wong to answer various lewd act charges.

B. Wong's September 10 Letters to Court

The next month on September 10, Judge Lewis received a letter from Wong in

which Wong acknowledged he had given his word he would not speak out at the

preliminary hearing, but that he had lost control during the hearing. Wong said: "While

my speaking up and out was not angry nor intense as you noted verbally, it was wrong. I

would like to hold myself accountable for that. [¶] I sincerely apologize for speaking out

of line. You are a reasonable person and gave me a fa[ir] shake." But Wong attached to

this letter a five-page handwritten letter containing his rambling assertions denying that

he molested his girls, proclaiming his relationship with his daughters was strong and

positive, asserting that he raised happy daughters with whom he had a loving

relationship, and blaming others for the charges.

C. Marsden and Faretta Hearings

Two months later, Wong made a Marsden motion for substitution of counsel, and

Judge Thompson presided over the hearing. During the hearing, Judge Thompson

indicated he was familiar with the case based on his rulings on pretrial motions and had

"been involved in the matter throughout." After allowing Wong a lengthy period to

discuss the reasons for his dissatisfaction with his counsel, Judge Thompson stated

Wong's issues appeared to involve primarily disagreements over evidentiary matters, but

asked Remiker to respond. Remiker then discussed the various issues raised by Wong's

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motion; noted Wong's failure to cooperate on various levels; and briefly described

Wong's misbehavior during the preliminary hearing and the fact that he was twice

physically removed from the proceeding because of his misconduct.

After denying the Marsden motion, the court asked whether Remiker was aware of

Wong's two letters to the court (the "apology" letter and the five-page letter). The court

said it was important for Remiker to review the second letter because it could be harmful

to Wong's interests. While Remiker was stating that she intended to obtain a copy, Wong

interrupted, saying "I'm going to keep writing letters if that's the only way that I can be

heard. If you have to lock me up for 135 years, you go ahead and do it, but I'm innocent.

[¶] . . . [¶] . . . I'll be heard one way or another." Wong then stated that he wanted to "go

pro per" because he did not want to be represented by Remiker. The court responded that

Wong had a right to request to be self-represented, but would need to fill out a written

waiver form. The court noted that such motions are only "rare[ly] . . . denied," but Wong

should discuss the form with Remiker to ensure he understood the consequences.

At a continued hearing later that day, the court said it had received Wong's

completed Faretta waiver form, but that it remained concerned with Wong's

"disruptiveness" and wanted to continue the hearing one week to conduct its own legal

research on the court's authority to consider Wong's in-court misbehavior when ruling on

the Faretta motion. The court said it had the "opportunity to speak extensively with Mr.

Wong" regarding the Marsden issues and these discussions were relevant to the court's

assessment of Wong's ability to represent himself. The court also noted it had

"tremendous reservations, for the lack of a better term, of Mr. Wong representing himself

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and . . . cross-examining his daughters who have made these allegations," but

acknowledged this concern did not appear to be a proper basis to deny the motion.

The court held the continued hearing one week later. At the outset of the hearing,

the court stated it would deny Wong's self-representation motion. The court explained it

had "an opportunity to review the preliminary hearing transcript in the case [and] the

applicable . . . law in the matter." The court stated that "[h]aving had an opportunity to

review the preliminary hearing transcript, the numerous outbursts, and difficulties that

were created during that particular hearing, there is nothing to suggest to me Mr. Wong's

courtroom demeanor would change under a self-representation status, and his request is

denied." (Italics added.)

Wong requested permission to speak, but the court stated he was still represented

by counsel and he should obtain his counsel's advice before speaking in court. Wong

ignored this admonition, and requested another Marsden hearing because he was not

"able to present the entire list of reasons that I would like to fire my attorney." The court

stated that Wong's Marsden motion had already been heard and denied, and the court was

not going to hold another hearing on the same motion. The court confirmed the

December 26 trial date.

Later that day, the court issued a six-page written order explaining its denial of

Wong's Faretta motion. In the order, the court detailed the applicable legal principles

and cited federal and state authority providing that although a defendant has an

" 'absolute' " right to self-representation, a trial court has discretion to deny this right if

the defendant engages in " ' "serious and obstructionist misconduct" ' " and the

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circumstances show this conduct will continue. (See, e.g., McKaskle v. Wiggins (1984)

465 U.S. 168; People v. Welch (1999) 20 Cal.4th 701 (Welch).) Applying this rule, the

court discussed in detail Wong's conduct during the preliminary hearing, including his

"intimidat[ion]" of the child witnesses, the damaging effect his conduct had on the

witnesses, and Wong's inability or unwillingness to control himself despite being

admonished and despite giving assurance that he will not further engage in these

behaviors. The court concluded:

"Based on a review of the record; the nature of the case; the
Defendant's prior outbursts, which the court during the preliminary
examination found were meant to intimidate the minor victim
witnesses; the effect the outbursts had on the victims; the
Defendant's inability to comply with the court's order to not disrupt
the proceedings; and this court's observations of the Defendant
during the court proceedings, this court finds that Defendant will not
conform his conduct to the rules of procedure and courtroom
protocol, and that his self-representation would be unacceptably
disruptive. The record shows that Defendant is unwilling to follow
courtroom protocol after repeated admonishments and his assurance
to the court that he would and could do so."

Shortly after, Wong filed a new Marsden motion. At the trial readiness

conference, the court granted the motion without additional argument. The court stated:

"[B]ased upon the current status of this case, irreconcilable differences, for the lack of a

better term, have arisen between Mr. Wong and Ms. Remiker. I believe it is in

everyone's best interest at this point to grant the Marsden [motion]." Trial was continued

six months to provide Wong's substitute counsel sufficient time to prepare.

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 D. Legal Principles

A criminal defendant has the constitutional right to forego the constitutional

guarantee of the assistance of counsel and to represent himself at trial. (Faretta, supra,

422 U.S. at pp. 817-818.) However, this right is " 'not absolute.' " (People v. Butler

(2009) 47 Cal.4th 814, 825.) Among other limits, a defendant's Faretta right may be

denied or terminated if the defendant's " 'deliberate . . . or obstructive behavior' threatens

to subvert 'the core concept of a trial' . . . or to compromise the court's ability to conduct a

fair trial . . . ." (People v. Carson (2005) 35 Cal.4th 1, 10 (Carson); Welch, supra, 20

Cal.4th at pp. 734-735.)

In determining whether a defendant's disruptive conduct will interfere with a fair

trial, "[e]ach case must be evaluated in its own context [and] on its own facts." (Carson,

supra, 35 Cal.4th at p. 10.) But California courts have identified certain factors that are

of particular importance in this analysis. First, a defendant's conduct constituting witness

intimidation provides a strong basis for denying the Faretta right. (Carson, supra, 35

Cal.4th at p. 9.) A court's finding the defendant has engaged or is likely to engage in

witness intimidation precludes self-representation because "witness intimidation . . . by

its very nature compromises the factfinding process and constitutes a quintessential

'subversion of the core concept of a trial.' " (Ibid.) Other relevant factors include: (1) the

availability of alternative procedures for addressing or preventing the problem; (2) the

likelihood that the misconduct will affect the fairness of the trial; (3) the extent to which

the defendant has been admonished to refrain from the behavior; and (4) the extent to

which the defendant intended to disrupt the proceedings. (Id. at pp. 10-11.)

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 Under these rules, the "likely, not the actual, effect of the misconduct should be

the primary consideration." (Carson, supra, 35 Cal.4th at p. 10.) Thus, a court may deny

a defendant's self-representation request based on the defendant's pretrial misconduct

even if the misconduct did not yet "result in [an actual] disruption of the trial . . . ."

(Ibid.) It would be a "nonsensical and needless waste of scarce judicial resources to

proceed to trial when . . . defendant has shown by his conduct during pretrial proceedings

that he is unable to conform to procedural rules and protocol." (People v. Watts (2009)

173 Cal.App.4th 621, 630.)

A trial court "possesses much discretion" in "deciding whether a defendant is and

will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his

or her actions or words as to preclude the exercise of the right to self-representation."

(Welch, supra, 20 Cal.4th at p. 735; accord, Carson, supra, 35 Cal.4th at p. 12.) The

court's "exercise of that discretion 'will not be disturbed in the absence of a strong

showing of clear abuse.' " (Welch, supra, 20 Cal.4th at p. 735.) The "extent of a

defendant's disruptive behavior may not be fully evident from the cold record, and . . . the

trial court . . . is in the best position to judge defendant's demeanor." (Ibid.)

Accordingly, a reviewing court must "accord due deference to the trial court's assessment

of the defendant's motives and sincerity as well as the nature and context of his

misconduct and its impact on the integrity of the trial in determining whether termination

[or denial] of Faretta rights is necessary to maintain the fairness of the proceedings."

(Carson, supra, 35 Cal.4th at p. 12.)

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 E. Analysis

The court did not abuse its discretion in this case. Putting together Wong's

misconduct at the preliminary hearing with his subsequent statements and conduct, Judge

Thompson had a meaningful basis to conclude that if Wong was permitted to represent

himself, he would continue his disruptive and intimidating conduct at trial.

First, the record shows Wong engaged in substantial witness intimidation at the

preliminary hearing, resulting in his twice being physically removed from the courtroom.

This conduct occurred after being admonished by his counsel, the court, and the bailiff

and after Wong repeatedly assured the court he would abide by the rules. At the

conclusion of the hearing, Judge Lewis made a specific finding that Wong engaged in

this conduct with the intent to intimidate his daughters and prevent their testifying about

his sexual abuse. This finding was supported by the record. Wong's misconduct appears

to have been timed to have its strongest effect—when D2 first came to the stand and

when D1 was recounting his oral sexual abuse. The record shows Wong was successful

in achieving this desired result. Each girl lost her composure and broke down after

hearing his very loud and aggressive comments directed to them, which appeared to

include some form of a coded message to each daughter. Wong had been their sole

caregiver for much of their lives, and the girls understandably were upset and frightened

and had intense emotional reactions to his courtroom behavior.

In addition to reviewing the preliminary hearing transcript, Judge Thompson

observed Wong during pretrial proceedings and at the Marsden hearing and had the full

opportunity to assess whether it was likely that he would repeat his prior misconduct at

15
trial. At the Marsden hearing, Wong at times interrupted the court and counsel and stated

he would continue writing letters and be heard "one way or another." Additionally,

although he sent an apology letter to Judge Lewis, Wong attached to that letter a lengthy

and rambling narrative repeating certain of his comments made at the preliminary hearing

and reflecting his anger and frustration regarding his daughters' accusations, which he

claimed ignore the "natural love and care that exudes between us." Viewing his conduct

and letters together, the court could reasonably conclude that Wong had no true remorse

for his prior misconduct and did not intend to abide by his assurances that he would

refrain from harassing and intimidating his daughters while they were on the witness

stand.

Wong argues the court abused its discretion because it improperly focused solely

on his actions at the preliminary hearing. The argument is factually unsupported. The

court's order shows the court was aware of the applicable legal principles and that it was

required to consider whether Wong would "conform his conduct to the rules of procedure

and courtroom protocol" at trial. The court specifically stated that in reaching its

conclusion that Wong could not do so, it relied on its own "observations of the Defendant

during court proceedings." Although Wong argues that the court should have concluded

that his subsequent conduct "belies any conclusion [he] would remain so disruptive that

he could not represent himself," the court had a reasonable basis to reach a different

factual conclusion. The trial judge had the opportunity to view first hand Wong's

attitude, verbal tone, facial expressions, and body language, and determine that his

outward compliance at the hearings (when he was represented by counsel) did not reflect

16
a sufficient change in attitude and behavior that showed he had the ability or willingness

to maintain self-control, particularly when the girls were testifying in front of him. The

court had a substantial opportunity to interact with Wong and these observations gave the

court insight into Wong's willingness and ability to control himself, and whether Wong

was likely to repeat his disruptive conduct at trial—factors that this court is unable to

fully evaluate on a "cold record." (Welch, supra, 20 Cal.4th at p. 735.)

Based on the court's observations, the court could reasonably conclude that

although many of Wong's statements at the Marsden hearing appeared to be polite and

under control, these outward manifestations of his conduct were merely a superficial

cover for Wong's frustration and inability or unwillingness to control himself when his

daughters testified about details of the claimed sexual abuse. Although a reasonable trial

judge could have assessed the situation differently, the court did not clearly abuse its

discretion by concluding that it was likely Wong's disruptive and intimidating conduct

would be repeated at trial.

We also find unhelpful Wong's focus on the fact that the trial record shows he did

not in fact engage in disruptive conduct at trial. We review the propriety of the court's

ruling at the time it was made, and not based on later events. Moreover, after the jury

verdict, Wong made statements to the court again suggesting that he did not believe he

did anything wrong at the preliminary hearing and that he "wish[ed]" at trial he "would

have been able to [have] some type of interaction between [my daughters] and I."

Wong's reliance on People v. Superior Court (George) (1994) 24 Cal.App.4th 350

is misplaced. In George, the trial court denied the defendant's motion to represent

17
himself on the ground that he is a security risk and sought self-representation only to

acquire jail privileges. (Id. at p. 353.) The People petitioned for a writ of mandate,

arguing the denial was not supported by applicable law and could trigger a second trial if

a reviewing court later concluded the trial court committed Faretta error. (Id. at p. 352.)

This court granted the petition and ordered the trial court to conduct a hearing to provide

the defendant an opportunity to waive his self-representation right with full knowledge of

the probable custodial restrictions that will be imposed based on his security risk. (Id. at

p. 354.) We reasoned the court "improperly created a criterion of 'extreme

dangerousness' to deny [the defendant] his absolute right of self-representation. . . .

There is simply no authority to deny a defendant the right of self-representation because

the defendant poses a real or perceived threat or harbors an ulterior motive." (Ibid.) We

explained that although the court had discretion to place security restrictions to protect

the safety of persons in the courtroom, physical restrictions on a defendant (if determined

to be necessary) do not preclude self-representation. (Id. at p. 355.)

In this case, the court did not deny Wong's motion based on its belief that Wong

presented a security risk or had previously intimidated the witnesses. The court instead

denied the motion based on its conclusion that Wong was likely to continue to be

disruptive and engage in witness intimidation, and that this conduct would interfere with

the core integrity of the trial. This is a proper ground for denial of the Faretta right under

current California Supreme Court authority. (See Carson, supra, 35 Cal.4th at pp. 7-12;

People v. Jenkins (2000) 22 Cal.4th 900, 962-963; Welch, supra, 20 Cal.4th at pp. 734-

735.)

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 II. Court's Questions to Prosecution Witness

Wong contends the court erred in asking questions to D1 at the end of her

testimony.

A. Background

When the attorneys concluded their examination of D1, the court asked several

questions clarifying the locations in which the claimed abuse occurred:

"The Court: All right, I do have a question . . . . The touching that you
described, did that all happen in San Diego? And when I say San Diego, I
mean El Cajon, La Mesa, South Bay?

"D1: No.

"The Court: No. Did it happen other places?

"D1: Yes.

"The Court: How many times did he touch you while you were living in
San Diego with his penis?

"D1: I am not sure.

"The Court: More than once?

"D1: Yes.

"The Court: More than twice?

"D1: Yes.

"The Court: Okay. How many times did he touch you when you were
living in San Diego where he touched you with his hands on your private
part?

"D1: I don't know.

"The Court: More than once?

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 "D1: Yes.

"The Court: More than twice?

"D1: Yes.

"The Court: And how many times did he touch you with his mouth on your
private part while you were living in San Diego?

"D1: I don't know.

"The Court: More than once?

"D1: Yes.

"The Court: More than twice?

"D1: Yes."

The court then asked counsel if they had any further questions as a result of the

court's questions, and neither counsel did.

B. Analysis

Wong contends the court erred in questioning D1.

Wong forfeited the contention by failing to object to the questions. (See People v.

Cook (2006) 39 Cal.4th 566, 598 (Cook); People v. Harris (2005) 37 Cal.4th 310, 350

(Harris); People v. Hines (1997) 15 Cal.4th 997, 1041; People v. Corrigan (1957) 48

Cal.2d 551, 556 ["judge's examination of a witness may not be assigned as error on

appeal where no objection was made when the questioning occurred"].)

Further, there is no merit to Wong's contention because the court's questioning did

not constitute error.

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 A trial judge has " ' " 'the power, discretion and affirmative duty . . . [to]

participate in the examination of witnesses whenever he [or she] believes [the

questioning] may fairly aid in eliciting the truth, in preventing misunderstanding, in

clarifying the testimony or covering omissions, in allowing a witness his right of

explanation, and in eliciting facts material to a just determination of the cause.' " ' "

(Harris, supra, 37 Cal.4th at p. 350, citations omitted; accord, Cook, supra, 39 Cal.4th at

p. 597.) "The court's questioning must be ' "temperate, nonargumentative, and

scrupulously fair" ' [citation], and it must not convey to the jury the court's opinion of the

witness's credibility." (Cook, supra, 39 Cal.4th at p. 597.) The court should not become

an advocate for either party.

The trial court's questions did not exceed the scope of its authority to ensure a

proper trial record. The questions were straightforward and open-ended and did not

suggest a correct answer or an opinion on D1's credibility. The questions did not show

bias toward the prosecution, and were brief and to the point. The prosecutor had already

elicited evidence supporting the alleged charges. In asking the additional questions, the

court sought information regarding where each of the alleged lewd acts took place—facts

that may have been difficult for the jury to discern because D1 had been crying through

most of her testimony. The court sought clarifying information regarding whether Wong

had inappropriately touched D1 in San Diego County as opposed to in Orange County,

where the family lived at one point. The only new fact elicited was D1's testimony that

Wong touched her vagina with his penis more than twice. Previous questions by counsel

elicited only that appellant touched her with his penis more than once. But this did not

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affect the verdict because Wong was charged with touching D1 lewdly with his penis

only two times, not three.

At the conclusion of the trial, the court instructed the jury that it should not "take

anything I said or did during the trial as an indication of what I think about the facts, the

witnesses, or what your verdict should be" and that the jury's role was to decide the facts

based only on the evidence presented in the courtroom. These instructions reminded the

jury that the trial court's role was limited to an impartial presiding officer, and that any

conduct was not designed to favor either side. (People v. Cook, supra, 39 Cal.4th at p.

598.) We are required to presume the jury understood and followed these instructions.

(See Harris, supra, 37 Cal.4th at p. 350.)

Finally, even assuming the judge's questions were inappropriate, the questions

were not prejudicial. The questions were brief and straightforward, obviously seeking to

clarify D1's testimony regarding the number of times the alleged abuse occurred and the

county in which the abuse took place. There were no additional facts elicited that would

have changed the outcome of the verdict. Any slight indication the judge found the girls'

testimony credible would not have altered the jury verdict. The evidence was strong that

Wong sexually abused these two girls. Although the evidence consisted primarily of

their own testimony, their candid descriptions of Wong's sexual misconduct provided

powerful evidentiary support that they had been victims of their father's abuse. D1's

testimony was not as precise as D2's testimony because she was crying during most of

her testimony, but corroborating evidence from D2 and from Wong's previous girlfriend

supported that D1 had also been sexually abused by defendant.

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 DISPOSITION

Judgment affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCINTYRE, J.

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