Abbaszadeh

I concur in the unpublished portion of the majority opinion, where the majority concludes that various of defendant’s contentions of prejudicial error are not meritorious.

I also concur in the majority’s conclusion that voir dire was improper and in the majority’s decision to report Judge O’Flaherty’s conduct to the Commission on Judicial Performance.

However, I respectfully dissent from the reversal of the judgment. In my view, defendant has forfeited his right to complain of Judge O’Flaherty’s improper voir dire because trial counsel failed to object in the trial court.

Our Supreme Court has uniformly held that, in order to preserve a problem with voir dire on appeal, a defendant must have objected to the improper voir dire in the trial court. (People v. Seaton (2001) 26 Cal.4th 598, 635 [ 110 Cal.Rptr.2d 441 , 28 P.3d 175 ]; People v. Staten (2000) 24 Cal.4th 434, 451-452 [ 101 Cal.Rptr.2d 213 , 11 P.3d 968 ]; People v. Sanchez (1995) 12 Cal.4th 1, 61-62 [ 47 Cal.Rptr.2d 843 , 906 P.2d 1129 ]; People v. Visciotti (1992) 2 Cal.4th 1, 47-48 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ]; see generally People v. Saunders (1993) 5 Cal.4th 580, 589-590 [ 20 Cal.Rptr.2d 638 , 853 P.2d 1093…

In People v. Mello (2002) 97 Cal.App.4th 511 [ 118 Cal.Rptr.2d 523 ] (Mello) we reversed a criminal conviction because Placer County Superior Court Judge Joe O’Flaherty instructed prospective jurors to lie about racial prejudice and make up reasons to avoid jury service. This structural error rendered the trial fundamentally unfair, requiring reversal without a showing of prejudice.

In Mello we assumed this “astonishing” error was a “well-intentioned but misguided” incident. ( Mello, supra, 97 Cal.App.4th at pp. 516, 518.) It now appears Judge O’Flaherty has a practice of instructing jurors to hide invidious bias.

In this case involving an Iranian charged with fraud offenses, tried before we issued Mello , a jury convicted defendant of two counts of grand theft by false pretenses (counts I and III, Pen. Code, §§ 487, subd. (a), 532, subd. (a)) and one count of selling securities by means of false statements (count II, Corp. Code, §§ 25401, 25540). On our own motion we augmented the record to include a transcript of the jury voir dire and ordered supplemental briefing on the effect of Mello .

We conclude Mello error is reversible regardless of the lack of objection in…