California Court of Appeal Jan 9, 2026 No. E084436Unpublished
Filed 1/9/26 P. v. Silva CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E084436
v. (Super.Ct.No. FVI20001642)
RUBEN DONALDO SILVA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Debra Harris,
Judge. Affirmed.
Jo Pastore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Daniel Rogers and Adrian R. Contreras,
Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Ruben Donaldo Silva challenges the trial court’s finding
that he violated his probation terms. Defendant’s sole claim on appeal is that court was
biased against him. Defendant does not contest the People’s argument that he forfeited
his bias claim by not raising it below. We note that there was a ready statutory procedure
available to defendant before the matter was adjudicated to assert, test, and remedy
alleged claims of bias, according to a reasonable person standard. (Code Civ. Proc.,
§ 170.1 [disqualification for cause]; id., subd. (a)(6)(A)(iii) [alleged bias].) As we
explain post, defendant’s failure to raise his claim below forfeits any relief under both the
foregoing statutory provisions and under the constitutional due process principles on
which he now attempts to assert his bias claim on appeal. Because defendant forfeited
his claim, his appellate challenge fails. We therefore affirm the trial court’s probation
revocation ruling. BACKGROUND
In June 2020, when he was almost 21 years old, defendant was charged with
committing a lewd act days earlier upon a child under age 14. (Pen. Code, § 288,
subd. (a).) In November 2022, the charge was dismissed pursuant to plea terms under
which defendant entered a guilty plea to coercing the victim to engage in a sexual act by
means of fraud meant to instill fear. (Pen. Code, § 266c.) The terms of the plea
agreement included a grant of formal probation (24 months), provided that defendant
served a six-month jail sentence and abided by his probation terms and conditions. In
accepting the plea agreement, the bench officer noted the court did so “because of the
fragile nature of the victim in this case.” A psychological evaluation indicated that
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defendant posed an average risk of sexual offense recidivism, based on Static-99R
testing.
The probation report for defendant’s probation/sentencing hearing described the
circumstances of the offense as reflected in defendant’s arrest report, as follows. The
victim told her father that defendant raped her the evening she ran away from home, after
she reactivated a social media account (SnapChat) earlier in the week. Defendant
contacted her on the online platform after she posted a photograph of herself and her cat
on her bed. When she said she was 13 years old, defendant said he was 14. When he
learned they lived in the same town (Lucerne Valley), defendant called her and asked that
they meet. The victim snuck out of her home and met defendant at the end of a nearby
dirt road. He drove her to his residence, where they played chess and watched a movie
until 3:00 a.m.; defendant then returned her to where he picked her up.
Defendant recontacted the victim later that week, picked her up at the same
location, and again took her to his residence, where his bedroom was in the garage. He
lay down beside her on his bed as she watched television. He kissed her, groped her, told
her to take off her shirt and when she said, “No,” he insisted, telling her he had firearms
in his car. He went outside to his vehicle and returned with the weapons, which he placed
on a shelf near his bed. The victim described the guns as one being “long” and the other
was black with an orange tip. Defendant forced her to take a pill that she recalled was
labeled “Plan B” or similar. He told her it was birth control, which she said she did not
need because she did not want to have sex; she ingested it however out of fear.
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Defendant began threatening the victim while trying to remove her clothing. He
attempted to remove her leggings, pointed the black handgun at her, and told her to lie
back on the bed. She complied; then he placed one hand over her mouth and undressed
her with the other. He held the victim down when she tried to flee. The victim cried, he
held her arms down, rubbed her genital area and inserted his fingers and then his penis in
her vagina. He made sexual comments and ejaculated. The victim put her clothes on and
fled the garage. As she walked home, defendant followed her in his car. He told her to
get inside and then he drove her to the end of the dirt road, where he dropped her off.
In February 2023, within three months of his guilty plea, defendant violated his
probation terms by traveling out of state. He admitted the violation at a hearing in
April 2023, waiving his right to contest revocation of probation. (See People v. Vickers
(1972) 8 Cal.3d 451 (Vickers) [revocation hearing].) The trial court amended and
reinstated its grant of probation, conditioned on defendant serving 365 days in jail.
In June 2024, before defendant’s probation term was due to expire in
November 2024, the probation department filed a petition alleging further probation
violations discovered in a home compliance check. The alleged violations included
defendant’s failure to cooperate with his probation officer on his rehabilitation plan.
Other violations included breach of probation conditions, including: (1) not to use or
possess a computer or internet device, except for employment purposes; and (2) not to
possess any form of sexually explicit movie videos or material, nor frequent
establishments where such material is the primary content, nor utilize any sexually
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oriented telephonic services. Defendant’s probation conditions also prohibited possession
of obscene material as defined in Penal Code section 311.
On July 10, 2024, the prosecutor and defense counsel appeared at a prehearing
conference to schedule defendant’s Vickers hearing later that month. After a bench
conference, the matter proceeded on the record. The prosecutor was apparently newly
assigned to the judge’s department (Hon. Debra Harris). Defendant’s appointed attorney,
a deputy public defender, suggested there was “an indicated sentence o[f] the low term on
this matter. It’s a two, three, four years triad.”1
The trial court, noting the prosecutor’s new assignment in its department,
recounted that it previously asked the parties if there was a case on calendar “that he’s
concerned about [i.e., the prosecutor], . . . and [when] he said no, . . . I said I was
outraged.” The court, while “trying to find the probation report” regarding defendant’s
original offense, then noted that “the facts as outlined by [that] report” indicated
defendant “used a gun.”
The court continued: “And I don’t want to talk about the charges in the plea
bargain agreement. You know what they are. I don’t want to mention that in open court,
but this was for a change in the charges, and also for probation. [¶] Now, I realize that I
can’t consider that in sentencing him. I have to sentence, if [defendant] is found in
violation of probation, according to what he pled to, but the fact that a firearm was used
1 It is not clear where defense counsel derived the indicated sentence from—it does not appear in the reporter’s transcript for defendant’s original sentencing at which he first received probation, nor elsewhere in the record to our knowledge.
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and the way that the probation officer outlined the facts of this case, the first thing I did
was to ensure my name is nowhere on it,” apparently referring to defendant’s plea
agreement and change of plea.
The court recapped: “And I used this as a teaching lesson for [the prosecutor] to
know that what I expect from both sides, whether it’s the district attorney or defense
attorney, is to alert me to issues like this.”
The court then summarized: “As I said, because we are in open court, I’m not
going to go further into the facts. No, I’m not inclined to give the low term.” The parties
then consulted off the record regarding a date for the Vickers hearing, and the court set
that date.
The court held the Vickers hearing almost three weeks later, on July 29, 2024. The
parties presented evidence regarding the alleged probation violations, the court found
defendant violated his probation terms, declined to reinstate probation, and sentenced
defendant to the midterm of three years on his plea offense. The evidence presented at
the hearing included the probation officer’s testimony that defendant “failed to comply
with directives [that] he wasn’t allowed to use the Internet” and that the violations,
including defendant’s “multiple” visits to sexually explicit Internet sites like OnlyFans,
were evident on his phone. The probation officer described the sexually explicit online
profiles and pages that defendant visited. Defendant admitted to the probation officer
that “nobody else had access” to the device. He did not suggest he possessed or used his
phone for work purposes.
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At the hearing, the court expressly declined defense counsel’s request to—with
“stricter term[s]”—give defendant “another chance on probation.” In addition to noting
this was defendant’s second proven probation violation, the court also found that this
“violation corresponds to the charges he pled to, which was a lesser included offense as
you can gather from what he was charged with. And I’m not considering that. I’m
considering what he pled to.”
DISCUSSION
Defendant contends he is entitled to reversal of the trial court’s probation
revocation determination and remand for a new Vickers hearing before a different judge.
Defendant asserts the trial court “clearly showed its bias by announcing,” at the
prehearing conference, “its concern over the original grant of probation.”
Defendant forfeited his claim by raising it for the first time on appeal, despite
almost three weeks passing between the judge’s allegedly biased comments and the
subsequent Vickers hearing. It is firmly established that a party “may not go to trial
before a judge and gamble on a favorable result, and then assert for the first time on
appeal that the judge was biased.” (People v. Rodriguez (2014) 58 Cal.4th 587, 626.)
As noted above, the Legislature has provided a ready means to raise and resolve
bias claims at the earliest opportunity. (Code Civ. Proc., § 170.1, subd. (a); see People v.
Scott (1997) 15 Cal.4th 1188, 1206-1207 [defendant must seek disqualification “ ‘at the
earliest practicable opportunity after discovery of the facts constituting the ground for
disqualification’ ”].) The statutory disqualification mechanism is not limited to the
judicial officer’s subjective evaluation of his or her impartiality, though the officer can
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grant a disqualification motion on that ground. (See Code Civ. Pro., § 170.1
subd. (a)(6)(A)(ii) [providing for disqualification if “[t]he judge believes there is a
substantial doubt as to his or her capacity to be impartial”], or similarly under (i) [“The
judge believes his or her recusal would further the interests of justice”].) The statute also
provides for disqualification based on an objective standard, namely: “A person aware of
the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
(Id., subd. (a)(1)(A)(iii).) The enactment provides for immediate writ review of the trial
court’s decision on a disqualification motion. (Code Civ. Proc., § 170.3, subd. (d).) The
availability of writ relief bars appeal on bias grounds. (People v. Brown (1993) 6 Cal.4th
322, 333.)
The no-writ bar against statutory relief does not extend to the constitutional claim
defendant asserts here. (See People v. Brown, supra, 6 Cal.4th at p. 334 [writ
requirement does not bar “nonstatutory due process claims of judicial bias”].) A
defendant “has a due process right to an impartial trial judge under the state and federal
Constitutions.” (People v. Guerra (2006) 37 Cal.4th 1067, 1111, overruled in part on
another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Nevertheless, forfeiture
also applies to constitutional claims of bias. Thus, in Guerra, as here, “defense counsel
was fully aware before and during trial of all the facts defendant now cites in support of
his claim of judicial bias. But he never claimed during trial that the judge should recuse
himself or that his constitutional rights were violated because of judicial bias. ‘It is too
late to raise the issue for the first time on appeal.’ ” (Guerra, at p. 1111; see also United
States v. Olano (1993) 507 U.S. 725, 731 [“ ‘No procedural principle is more familiar to
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this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in
criminal . . . cases by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.’ ”].)
So it is here. Defendant was present at the prehearing conference and had the
same defense counsel at that hearing and the subsequent one weeks later. There was
ample time to assert bias, including by filing a disqualification motion or seeking writ
review if necessary. Nothing in the record suggests an objection on bias grounds would
have been futile. (Compare People v. Sturm (2006) 37 Cal.4th 1218, 1237; People v.
Gomez (2018) 6 Cal.5th 243, 292.) Consequently, “we deem the claim of judicial bias to
be forfeited” (People v. Johnson (2018) 6 Cal.5th 541, 592) and do not pass on “ ‘whether
the trial judge’s conduct left something to be desired, or even whether some comments
would have been better left unsaid.’ ” (People v. Snow (2003) 30 Cal.4th 43, 78.)
DISPOSITION
The trial court’s probation revocation decision is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
9
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant forfeited his claim of judicial bias by failing to raise it in the trial court through available statutory procedures or timely objection, despite having ample opportunity to do so.
Issues
Whether the defendant forfeited his claim of judicial bias by failing to raise it in the trial court.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Because defendant forfeited his claim, his appellate challenge fails.”
“It is firmly established that a party “may not go to trial before a judge and gamble on a favorable result, and then assert for the first time on appeal that the judge was biased.””
“Consequently, “we deem the claim of judicial bias to be forfeited””