618 S.E.2d 104 (2005)
274 Ga. App. 410
CRAFT
v.
The STATE.
No. A05A0010.
Court of Appeals of Georgia.
July 14, 2005.
*105 William J. Mason, Columbus, for appellant.
J. Gray Conger, District Attorney, Robert H. Sandwich, Jr., Assistant District Attorney, for appellee.
PHIPPS, Judge.
Rodney Craft was tried by a jury and convicted of two counts of child molestation. He was sentenced to forty years, ten in confinement and thirty on probation. On appeal, he claims that the trial court erred in its questioning of two witnesses and in refusing to allow his trial counsel to introduce evidence of the victims' academic records. Craft also charges his trial counsel with ineffective assistance. We conclude that the trial court violated OCGA § 17-8-57 by its questioning of one witness. We further conclude that the statutory violation, coupled with the trial court's failure to allow Craft a thorough and sifting cross-examination, constituted plain error. Therefore, we reverse. Because the evidence was sufficient to support the verdict under the standard of Jackson v. Virginia,[1] the case can be retried.[2]
The evidence showed that C.W. and T.J., both 15 years old, were walking to school in Columbus on August 26, 2002. As they walked by Craft's house, Craft said to C.W., "Hey, look over here." C.W. looked in that direction and saw Craft standing naked at his door, masturbating. C.W. told T.J. to look, and T.J. also saw Craft naked and masturbating. They ran the rest of the way to school and reported the incident to the assistant principal, Senobia Moore. After investigation by Columbus police officers, Craft was arrested.
1. Craft claims that the trial court erred by asking Moore questions about the character of the victims in such a manner as to cause the jury to believe that the court had formed or expressed an opinion about *106 the veracity of the victims, in violation of OCGA § 17-8-57.
The following exchange is at issue:
THE COURT: Ms. Moore, I just have a couple of questions for you. Do you know what kind of students these two girls are?
THE WITNESS: Yes. They are very good students. Actually, one is a cheerleader[3] and they are very mannerable, very poli[t]e young ladies. And, again, knowing that they are not ones that are real wild and real, you know, loud in the halls and everything, the way that I saw them that day, you know, caused my attention to go to them.
THE COURT: Are the cheerleaders at [your school] required to make a certain grade-point average?
THE WITNESS: Yes, well, we follow the State, the code that goes with athletes, and if you
THE COURT: So that's the same requirement?
THE WITNESS: Yes, it is. And if you fail two classes, you cannot participate. So it's the fail-no-participate rule. However, our students are still monitored. All of our athletes are monitored; and if their grades begin to fall low, they can be pulled from a game or pulled from participating for a period of time.
THE COURT: Based on the individual school policy?
THE WITNESS: Yes.
Craft did not object to the court's questioning during trial and has therefore waived his right to pursue the issue on appeal.[4] Despite counsel's failure to preserve this issue, we must consider whether the trial court's actions violated OCGA § 17-8-57 and, if so, whether that violation constituted plain error.[5]
"It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused."[6] The purpose of this limitation at least in part is to prevent the jury from being influenced by any disclosure of the judge's opinion regarding a witness's credibility.[7]
"The credibility and standing of the witness is an issuable fact in every case  a most material fact. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case."[8] This case was based almost entirely on the testimony of the victims. As a result, their credibility was the most important issue in the case.
The testimony elicited by the trial court bolstered the credibility of the victims, which had not previously been challenged. By its actions, the court stepped over the line between developing the truth of the case and intimating its opinion on an issue that was in the sole province of the jury, thereby violating OCGA § 17-8-57.[9]
Focused on what it calls the court's "leeway" in posing questions during a criminal trial, the dissent misses the point. We do not challenge the trial court's right to "occasional and cautious" questioning of witnesses to develop the truth of a case. Instead, we hold that the specific questioning in this case constituted a violation of OCGA § 17-8-57. Contrary to the dissent's argument, we are not breaking new ground or establishing a new rule in holding that a trial court violates OCGA § 17-8-57 when it intimates its opinion as to the credibility of a witness  an *107 issue within the sole province of the jury.[10] We are merely applying existing case law to the specific facts of this case  a task performed daily by judges at the trial and appellate levels.
We do not conclude that the trial court's improper questioning, standing alone, constituted plain error. Instead, we consider the issue of plain error in connection with Craft's next claim.
2. After the court asked Moore questions about the victims' school performance, Craft sought to question her about their academic history and disciplinary history. Craft asked Moore what kind of student C.W. was, Moore admitted that even polite students get into minor trouble and, at Craft's request, Moore explained "administrative detention." The state objected to the line of questioning at that point. Craft's counsel responded that he had documents that contradicted some of Moore's testimony about the victims' school performance and conduct. The court refused to allow Craft to pursue the matter further, stating "you're not going to make these victims look bad." Although this statement was made during a bench conference, it demonstrated that the trial court had reached the conclusion that the state had already proven that the girls were victims. Further, that conclusion likely formed the basis for the trial court's decision to shut down Craft's cross-examination. Craft claims that the trial court's refusal to allow further cross-examination constituted an abuse of the court's discretion.
As noted previously, the testimony elicited by the trial court bolstered the credibility of the victims, which had not previously been challenged. After opening the door to this line of questioning and allowing Moore to testify that the victims were very good students who were well-behaved, the trial court refused to allow Craft to rebut this testimony. Craft had documents showing that C.W. had been disciplined for disrespect and had been placed in administrative detention on two occasions, along with one showing that T.J. had been cited for screaming in the hallway and subjected to in-school suspension. Other documents showed that both victims had failed at least two classes.
The dissent argues that it was sufficient to allow Craft to ask four questions that "inferred to the jury that the two students fell short of perfection." But the limited questioning allowed by the court clearly was not adequate to rebut the critical testimony the court had elicited and did not provide Craft the thorough and sifting cross-examination to which he was entitled.[11]
The right of cross examination is a substantial right, the preservation of which is essential to the proper administration of justice and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy. This right should not be abridged.[12]
Here, not only did the court refuse to allow Craft further questioning of the witness; it refused to allow Craft to introduce the documentary evidence that would have specifically rebutted Moore's testimony regarding the behavior and academic standing of the victims.
We conclude that the trial court's improper bolstering of the victims' credibility, compounded by its refusal to allow Craft to rebut this critical testimony, "seriously affected the fairness, integrity, and public reputation of these judicial proceedings."[13] Therefore, we reverse Craft's conviction.[14]
We disagree with the dissent's implication that the focus should be on the number of questions asked by the trial court instead of the impact of those questions on the judicial proceedings. The dissent also seems to misunderstand our ultimate conclusion  when the trial court's improper questioning was *108 compounded with the court's refusal to allow Craft to rebut the testimony the court had elicited, it "seriously affected the fairness, integrity, and public reputation" of the judicial proceedings.
3. Because it is possible that the situation could occur on retrial, we address Craft's claim that the trial court erred when it asked T.J. the following:
THE COURT: Did you have any trouble seeing through the screen door on any of the occasions that you saw him standing behind the screen door?
THE WITNESS: No, ma'am.
THE COURT: Could you be mistaken about what he was doing?
THE WITNESS: No, ma'am.
THE COURT: On any of the times that you saw him?
THE WITNESS: No, ma'am.
Craft argues that the questioning bolstered T.J.'s credibility and revealed a clear bias toward the prosecution, in violation of OCGA § 17-8-57.
During direct examination by the state, T.J. testified that she had seen Craft in his boxer shorts on August 19, while she was walking to school. She testified that when she saw him on August 26, he was standing behind a screen door and a light was on behind him. On cross-examination, Craft's counsel asked T.J. numerous questions about what she could and could not see through Craft's screen door.
Because Craft raised no objection to the questioning, he waived his right to assert the issue on appeal.[15] Even if Craft had objected, we find that no error occurred because the trial court merely sought to clarify T.J.'s testimony.[16] The trial court may propound questions to any witness to develop the truth of the case.[17]
4. Craft's remaining claims are moot.
Judgment reversed.
BARNES, J., concurs.
RUFFIN, C.J., and BLACKBURN, P.J., concur specially.
ANDREWS, P.J., JOHNSON, P.J., and MIKELL, J., dissent.
RUFFIN, Chief Judge, concurring specially.
Although I agree with the result reached by the majority, I cannot fully endorse the analysis employed with respect to Divisions 1 and 2. Thus, I am compelled to write separately.
At the outset, I must emphasize that I find the trial judge's line of questioning regarding the victims' credibility to be wholly inappropriate. It is axiomatic that judges are required to remain neutral.[18] "As both the Supreme Court of Georgia and this Court have recognized, it is always wiser, safer, better, and juster that trial judges should confine themselves exclusively to an enunciation of the law, leaving to counsel the duty of elucidating the facts, and to juries the finding of the truth in the evidence."[19] Here, the trial court stepped beyond the bounds of appropriate questioning for the purpose of developing the truth, and instead acted as an advocate for the State by bolstering its witnesses. Indeed, I can conceive of no other purpose for such questions other than to bolster credibility.
Nonetheless, I do not believe that this impropriety  standing alone  rises to the level of "plain error."[20] And the inquiry at *109 the outset must necessarily be whether the trial court's violation of OCGA § 17-8-57 constitutes plain error.[21] Here, the court's questions established solely that the two girls were good students and that at least one was a cheerleader. Although this evidence certainly bolstered the girls' credibility, such bolstering does not constitute plain error; or "that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding."[22]
The true error lies with the trial court's refusal to allow a thorough and sifting cross-examination regarding the girls' academic performance. "Control of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion."[23] Discretion, however, is not without limit. "Every party has a right to a thorough and sifting cross-examination of witnesses called against him."[24] "Among the permissible purposes of cross-examination is the attempt to bring out facts that might show that a witness's testimony is either unbelievable, biased, or partial to one party."[25]
Both this Court and the Supreme Court have held that a trial court may abuse its discretion when it curtails cross-examination of witnesses.[26] Here, Craft was entitled to fully cross-examine Moore on issues pertaining to the girls' credibility. This is particularly true given the trial court's improper bolstering of their testimony. The trial court's questions about the girls' academic performance and standing in school opened the door to additional inquiry into their school records, and Craft "was entitled to a thorough and sifting cross-examination on this issue."[27] Accordingly, the trial court abused its discretion in curtailing such questioning so that the girls would not "look bad."[28] Moreover, I cannot conclude that any error in this regard was harmless.[29] The case against Craft rested exclusively on the credibility of the two victims. Under these circumstances, Craft's ability to undermine the girls' credibility should not have been limited, and Craft's conviction should be reversed.
I am authorized to state that Presiding Judge BLACKBURN joins in this special concurrence.
MIKELL, Judge, dissenting.
I respectfully dissent because I do not believe that the trial court's questioning of the witness violated OCGA § 17-8-57. Moreover, even if it had, the violation fell far short of being "plain error."
1. Occasional and cautious questioning of witnesses by the trial judge has been a part of Georgia trial practice for almost 150 years.[30] It has proved to be a useful device for reaching the truth. As explained by our Supreme Court, "It is a court's right, and oftentimes its duty, to question a witness in order to develop fully the truth of a case."[31] For a court to do its duty, it must be given *110 some leeway in questioning, especially when there is no objection or motion for a mistrial.
The court's leeway is constrained by its duty to remain neutral between the parties. Questions should be asked sparingly and as neutrally and dispassionately as possible.[32] Moreover, as explained in our early decision in Nobles v. State,[33] "[e]xtreme anxiety to develop the truth as to facts which, if proved, will be peculiarly beneficial to one of the parties in the case and correspondingly detrimental to the other[,] can easily be mistaken by the jury for a manifestation of the judge's conviction that one party rather than the other should prevail."[34]
The court's leeway in criminal trials is also limited by statute. OCGA § 17-8-57 provides that:
It is error for any judge in any criminal case . . . to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below.[35]
The majority opinion argues that the trial judge violated the statute by improperly bolstering the testimony of the victims when she elicited favorable testimony about them from the assistant principal.
A trial judge's intervening in a trial to bolster the testimony of the witnesses for one side might be a lapse from neutrality. But not every lapse from neutrality is a violation of OCGA § 17-8-57. The statute is narrowly drafted. It prohibits a trial judge from doing any one of four things:
(a) expressing his opinion as to what has or has not been proved;
(b) intimating his opinion as to what has or has not been proved;
(c) expressing his opinion as to the guilt of the accused; or
(d) intimating his opinion as to the guilt of the accused.
In the case at bar, the trial judge clearly did not do (a), (c), or (d). The appellant's argument seems to be that the trial court, by questioning the assistant principal about the witnesses' student activities and grade-point averages, violated (b) and intimated that the facts testified to by the students had been proved. But helping to prove facts and intimating that they have already been proven are different. The majority is breaking new ground by trying to shoehorn bolstering into a violation of OCGA § 17-8-57.
In none of the precedents cited by the majority was a conviction overturned because a trial judge elicited favorable testimony about a witness's background or character. In Paul v. State,[36] the trial judge cross-examined the defendant, the victim, several witnesses and "intimated that he gave . . . [the defendant's psychiatric defense] no credence whatsoever."[37] In Seidenfaden v. State[38], the court did not express an opinion at all, but correctly explained the law to the jury.[39] In O'Hara v. State,[40] we found no violation of OCGA § 17-8-57 despite the court's calling two witnesses, questioning them and suggesting its "approval" of one of them.[41]
The majority correctly asserts that the credibility and standing of the witnesses are *111 critical issues in any trial. But the cases in which there were statutory violations involved lengthy questioning of witnesses or disparaging comments as distinguished from the limited questioning done by the trial judge in the case at bar.[42] The majority opinion establishes a new rule that questions by a trial judge which elicit testimony favorable to a witness are violations of OCGA § 17-8-57. Such a rule would handicap the trial court in doing its duty to question witnesses, albeit infrequently, carefully and neutrally, "in order to develop fully the truth of a case."[43]
2. Even if the court's questioning violated the statute, the violation fell far short of being "plain error." The plain error rule means that, in order to obtain appellate relief when no objection or motion for mistrial was made in the trial court, an appellant must show more than that an error occurred and that the outcome of the trial might have been different but for the error. It is not sufficient to show that the error affected the fairness, integrity, or public reputation of the trial. Instead it must be shown that the error "seriously affected the fairness, integrity, and public reputation [of the trial]."[44]
Last year in Milner v. State, we held that a violation of OCGA § 17-8-57 was not plain error even though the trial judge had asked 14 penetrating questions of the defendant on cross-examination.[45] How can we now hold it to be plain error when a trial judge asks four fairly innocuous questions to a witness? The violation asserted in this case also contrasts starkly with the plain error found in Paul v. State, where the trial judge adopted a prosecutorial role throughout the trial.[46]
The majority is appropriately concerned that the trial judge, despite having "opened the door" to questions about the extra-curricular activities, grade point averages, etc., of the victims, curtailed the efforts of defense counsel to elicit impeaching testimony. But the admission of evidence and the scope of cross examination are largely within the discretion of the trial judge.[47] Because defense counsel was allowed to ask four questions, questions which inferred to the jury that the two students fell short of perfection,[48] the trial judge did not abuse her discretion in preventing defense counsel from exploring the matter as thoroughly as counsel wished to do.
3. I agree with the majority that the trial court's questions to the victim T.J. about what she could or could not see through the screen door were not violations of OCGA § 17-8-57.
I would affirm the judgment.
I am authorized to state that Presiding Judge ANDREWS and Presiding Judge JOHNSON join in this dissent.
NOTES
[1]  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[2]  See Lively v. State, 262 Ga. 510, 512(3), 421 S.E.2d 528 (1992).
[3]  Both victims testified that they were cheerleaders.
[4]  See Putman v. State, 270 Ga.App. 45, 46(4), 606 S.E.2d 50 (2004).
[5]  See Paul v. State, 272 Ga. 845, 848-849(3), 537 S.E.2d 58 (2000); Seidenfaden v. State, 249 Ga. App. 314, 318(2), 547 S.E.2d 578 (2001).
[6]  OCGA § 17-8-57.
[7]  O'Hara v. State, 241 Ga.App. 855, 859(3), 528 S.E.2d 296 (2000).
[8]  Jones v. State, 189 Ga.App. 232, 233(1), 375 S.E.2d 648 (1988) (citation and punctuation omitted).
[9]  See id.
[10]  See id.; see also Starr v. State, 269 Ga.App. 466, 468(1), 604 S.E.2d 297 (2004) (OCGA § 17-8-57 violated when trial court gave jury instruction that expressed an opinion, at least impliedly, as to the veracity of the child molestation victim).
[11]  See OCGA § 24-9-64.
[12]  James v. State, 260 Ga.App. 536, 536-537(1), 580 S.E.2d 334 (2003) (citation omitted).
[13]  Paul, 272 Ga. at 849(3), 537 S.E.2d 58 (citation and punctuation omitted).
[14]  See id.
[15]  See Putman, supra.
[16]  See id. at 46-47, 606 S.E.2d 50; see also Goodrum v. State, 269 Ga.App. 397, 400(1), 604 S.E.2d 251 (2004).
[17]  Eubanks v. State, 240 Ga. 544, 547(2), 242 S.E.2d 41 (1978); see also Shields v. State, 272 Ga. 32, 34-35(5), 526 S.E.2d 845 (2000).
[18]  See Steele v. Atlanta Maternal-Fetal Medicine, 271 Ga.App. 622, 628-629, n. 10, 610 S.E.2d 546 (2005).
[19]  (Punctuation omitted.) Id. at 628, n. 10, 610 S.E.2d 546.
[20]  The majority conflates the plain error analysis in Division 1 with Division 2, which involves Craft's right to thoroughly cross-examine witnesses. I find this conflation inappropriate, unnecessary, and confusing.
[21]  See Lockaby v. State, 265 Ga.App. 527, 528(1), 594 S.E.2d 729 (2004) ("Where a trial judge is alleged to have made a prejudicial remark during the course of the trial in violation of such Code section, absent plain error, an objection or motion for mistrial must be made in order to preserve the issue for appeal.").
[22]  (Punctuation omitted.) Smith v. State, 265 Ga.App. 236, 239(5), 593 S.E.2d 695 (2004).
[23]  (Punctuation omitted.) Courrier v. State, 270 Ga.App. 622, 623(1), 607 S.E.2d 221 (2004).
[24]  (Punctuation omitted.) Id. at 623(1)(a), 607 S.E.2d 221.
[25]  Carswell v. State, 268 Ga. 531, 534-535(5), 491 S.E.2d 343 (1997).
[26]  See id.; Courrier, supra.
[27]  Pye v. State, 269 Ga. 779, 788(17), 505 S.E.2d 4 (1998).
[28]  See Courrier, supra.
[29]  Compare id.
[30]  The leading case is Kelly v. State, 19 Ga. 425 (1856) (Lumpkin, J.). Accord Eubanks v. State, 240 Ga. 544, 546-547(2), 242 S.E.2d 41 (1978); Thomas v. State, 240 Ga. 393, 400(3), 242 S.E.2d 1 (1977).
[31]  (Citations omitted.) Eagle v. State, 264 Ga. 1, 3(3), 440 S.E.2d 2 (1994).
[32]  Questions to a defendant, when a defendant has elected to take the stand in a criminal case, require particular caution by the trial judge. See generally Milner v. State, 270 Ga.App. 80, 83(1), 606 S.E.2d 91 (2004).
[33]  13 Ga.App. 710, 79 S.E. 861 (1913).
[34]  (Citations omitted.) Id.
[35]  OCGA § 17-8-57.
[36]  272 Ga. 845, 846-848(1), 537 S.E.2d 58 (2000).
[37]  Id. at 848(1), 537 S.E.2d 58.
[38]  249 Ga.App. 314, 547 S.E.2d 578 (2001).
[39]  Id. at 318(2), 547 S.E.2d 578.
[40]  241 Ga.App. 855, 528 S.E.2d 296 (2000).
[41]  Id. at 859(3), 528 S.E.2d 296. In Crane v. State, 164 Ga.App. 638, 640(1), 298 S.E.2d 619 (1982), the trial judge in the presence of the jury "in effect dared the appellant to take a polygraph test on the central issue of his guilt or innocence."
[42]  Jones v. State, 189 Ga.App. 232, 233(1), 375 S.E.2d 648 (1988); Cole v. State, 6 Ga.App. 798, 65 S.E. 839 (1909).
[43]  Eagle, supra.
[44]  (Emphasis supplied.) Paul, supra at 849(3), 537 S.E.2d 58, citing Almond v. State, 180 Ga. App. 475, 480, 349 S.E.2d 482 (1986).
[45]  Milner, supra at 83-84(2), 606 S.E.2d 91. And a trial judge should be especially sparing and careful with questions to a defendant in a criminal case. Id. at 83(1), 606 S.E.2d 91.
[46]  Paul, supra.
[47]  See Mobley v. State, 212 Ga.App. 293, 295(1), 441 S.E.2d 780 (1994).
[48]  E.g., "Q. Right. But sometimes polite students get in trouble. Is that correct? A. Minor trouble, maybe so."


                                                                               F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               MAR 13 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

    CHRISTY D. MYERS,

                Plaintiff-Appellant,

    v.                                                     No. 98-6380
                                                     (D.C. No. CV-95-456-T)
    YASH CHOPRA, M.D.,                                     (W.D. Okla.)

                Defendant-Appellee.

                            ORDER AND JUDGMENT             *

Before TACHA , ANDERSON , and LUCERO , Circuit Judges.

         Plaintiff-appellant Christy Myers appeals from the damage award portion of

a judgment entered in her favor in a suit for assault and battery and intentional

infliction of emotional distress against defendant-appellee Yash Chopra, M.D       1
                                                                                .

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
       Appellant contends that the jury’s awards of $1.00 in nominal damages and

$2.00 in punitive damages were inadequate to compensate her for emotional and

mental injuries she sustained when appellee repeatedly fondled and squeezed her

breasts while administering epidural anesthesia during her labor and delivery.

Unfortunately, whether appellant’s contentions are considered to be a challenge to

the sufficiency of the evidence to support the jury’s award, an assertion that the

damages were so inadequate as to require a new trial, or a claim that the jury

reached an impermissible compromise verdict,          see Shugart v. Central Rural Elec.

Co-op. , 110 F.3d 1501, 1505 (10th Cir. 1997) (defining compromise verdict as

one in which the jury is unable to agree on liability and compromises the

disagreement by entering a low award of damages), the record before us indicates

that appellant failed to preserve error by raising those issues before the district

court after the jury reached its verdict.

       It is a fundamental tenet that an appellate court reviews only those claims

of legal error on which the trial court has first had an opportunity to rule.   See

Neu v. Grant , 548 F.2d 281, 286-87 (10th Cir. 1977).

       The purpose for timely objection or motion as a precedent to review
       on appeal is two-fold. It provides the trial court with the opportunity
       to know the specific contentions and to take corrective action, if
       required. And--more importantly for appellate review--it does not
       permit a party to sit idly by, watching error being committed, and
       then take a “first” shot at the claimed error without having accorded
       the trial court the opportunity to correct its action.

                                              -2-
Id. at 287. A claim that damages awarded by the jury were so inadequate as to

require a new trial must first be brought to the trial court’s attention in the form

of a motion for new trial. We then review the court’s ruling for abuse of

discretion. See Mason v. Oklahoma Turnpike Auth.      , 115 F.3d 1442, 1457 (10th

Cir. 1997). Appellant’s failure to preserve error in this manner precludes our

review. See Morrison Knudsen Corp. v. Fireman’s Fund Ins. Co.        , 175 F.3d 1221,

1256 n.45 (10th Cir. 1999) (stating that plaintiff’s argument that jury reached a

compromise verdict was waived by failing to move for a new trial on that

ground); Martin H. Redish, N   EW   T RIALS ; A MENDMENT OF J UDGMENTS , 12

Moore’s Federal Practice 3d § 59.55, at 59-136 (1999) (“Grounds for new trial

that arise solely in the context of post trial proceedings must be presented to the

trial court for consideration by a motion for new trial, and the failure to do so

deprives the appellate court [of] any record that is reviewable for error.”).

      The judgment is AFFIRMED.

                                                      Entered for the Court

                                                      Carlos F. Lucero
                                                      Circuit Judge

                                          -3-


14 F.3d 44
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Gaylon MASSEY, Plaintiff, Appellant,v.Robert RUFO, ETC., ET AL., Defendants, Appellees.
No. 92-1380.
United States Court of Appeals,First Circuit.
January 14, 1994

Appeal from the United States District Court for the District of Massachusetts
Gaylon Massey on brief pro se.
Melissa J. Garand, on Motion for Summary Disposition, for appellees.
D.Mass.
VACATED AND REMANDED
Before Cyr, Boudin and Stahl, Circuit Judges.
Per Curiam.

1
Gaylon Massey filed an action in the district court pursuant to 42 U.S.C. Sec. 1983.  At the time of the events described in the complaint, he was a pretrial detainee at the Suffolk County Jail.  His complaint alleged that his constitutional rights were violated by jail personnel by the use of excessive force, by their deliberate indifference to his medical needs and by the involuntary administration of psychotropic drugs.  The district court, in a margin order, granted defendants' motion for summary judgment on the ground that plaintiff had failed "to support his substantive allegations by factual evidentiary material."  It also denied plaintiff's motion to amend the complaint and his request for an extension of time to complete discovery.  Plaintiff appeals.

A. Deliberate Indifference to Medical Needs

2
To prevail on such a claim, plaintiff must establish that defendants' actions amounted to the "wanton infliction of unnecessary pain."   Estelle v. Gamble, 429 U.S. 97, 104 (1976).  "Deliberate indifference to serious medical needs of prisoners" satisfies this standard.   Id. at 104.1

3
Negligence and inadvertence in providing medical treatment do not state a valid claim of deliberate indifference.   Id. at 105-06.

4
"Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors."   Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987).  In this situation, deliberate indifference may be established only "where the attention received is 'so clearly inadequate as to amount to a refusal to provide essential care.' "   Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (quoting  Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985)).  There is nothing in the record to show any refusal to treat plaintiff.  He was seen the same day as the incident, provided with medication and sent for a consultation to the hospital.  Plainly, there is no material question of fact that defendants were not "deliberately indifferent" to plaintiff's medical needs.  Discovery would not aid plaintiff.

5
B. Involuntary Medication with Psychotropic Drugs

6
It has been clear since February 1990 that a prisoner "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."

7
See Washington v. Harper, 494 U.S. 210, 221-22 (1990).2  Harper involved a challenge to the state of Washington's procedures for medicating prisoners housed in its Special Offender Center (SOC), an institution for convicted felons with serious mental illnesses.  The specific question the Court addressed was whether a judicial hearing is required before a state may treat a mentally-ill prisoner with antipsychotic drugs against his will.   Id. at 213.  The Court determined that the SOC's policies, which did not provide for such a hearing, were constitutional.   Id. at 231.

8
The facts of the case at hand, however, concern not the treatment of a prisoner with antipsychotic drugs, but the emergency administration of this kind of medication based on a pretrial detainee's threatening behavior.  Qualified immunity protects state actors from damages claims under Sec. 1983 "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  That is, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."   Anderson v. Creighton, 483 U.S. 635, 640 (1987).

9
The events here took place in late August and early September 1990, over five months after Harper issued in February.  However, we do not think the right established in Harper bears a sufficient relationship to the right alleged here.  That is, there was no caselaw in August or September 1990 that clearly established that a pretrial detainee had a right under the Fourteenth Amendment to the procedures announced in Harper before he could be given antipsychotic medicine in an emergency situation.

C. Excessive Force

10
The standards governing the use of excessive force are set out in  Whitley v. Albers, 475 U.S. 312 (1986).  To show an Eighth Amendment violation when force is used, an inmate must demonstrate "the unnecessary and wanton infliction of pain."3   Id. at 320.  This inquiry, in turn, depends on " 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.' "   Id. at 320-21 (quoting  Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)).  Finally, the Court has recognized that deference should be accorded to prison administrators in the use of practices and policies that they believe are necessary to maintain the security of the institutions they run.  Id. at 321-22.

11
To be entitled to summary judgment, a moving party must "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  Fed. R. Civ. P. 56(c).  Once the movant has met this standard, the burden shifts to the non-moving party to establish the existence of "at least one issue that is both 'genuine' and 'material.' "   Kelly v. United States, 924 F.2d 355, 357 (1st Cir. 1991) (citation omitted);  Fed.  R. Civ. P. 56(e).  Here, plaintiff did not file any affidavits or other record evidence in opposition to the summary judgment motion.

12
Turning to defendants' evidence, we do not think that the record is adequate to support summary judgment.  Plaintiff alleges in his complaint that he was "severely beating [sic] by several of the defendants which resulted in a separation [sic] shoulder, lacerations to the face and head, bruises to the chest, arms and groin area, caused by the excessive use of force."  He also claims that defendants caused the "unnecessary and wanton infliction of pain."  Next, plaintiff states that when he insisted on finishing his meal, his food tray was grabbed and that the jailer shoved him;  he then states that he was jumped on and his arms twisted behind him.  Finally, he claims that he was dragged to a cell while being kicked all over.

13
There are four disciplinary reports relating to the incident in question.  The first two describe plaintiff's refusal to return to his room after dinner.  According to the officers, plaintiff threw down his spoon, said he was not going back to his room and told the officers that they might as well take him to "the hole."  These officers immediately notified the Sheriff's Emergency Response Team ("S.E.R.T.").  There are no reports from any members of the S.E.R.T. concerning precisely in what manner plaintiff was restrained and how much force actually was used to subdue plaintiff and take him to a cell.  The only references to the incident are contained in the reports of the two officers who had originally called the S.E.R.T. They state simply that plaintiff "was restrained and taken to the 6-1 unit."

14
In their motion for summary judgment, defendants simply assert that the officers "used no more force than was necessary."  They cite, in support of this conclusion, the log book for August 31st;  the only relevant information on the page in question simply states that at 5:25 p.m., "Sert team called to move inmate Gaylon Massey to 6-1."  Significantly, there are no affidavits from any of the jail personnel stating that they did not use any more force than they reasonably believed necessary and that the force was not excessive, much less any affidavits describing what, in fact, actually happened.

15
In general, grants of summary judgment in cases of this kind have rested upon affidavits describing the actual event and refuting the suggestion of undue force.   See, e.g., Tarpley v. Greene, 684 F.2d 1, 4 (D.C. Cir. 1982) (where plaintiff filed a Sec. 1983 action claiming that officers assaulted him during a search of his home, summary judgment appropriate because defendant filed an "uncontroverted affidavit" denying assault took place).  Even if jail records were treated as a substitute, the records here-as noted-also fail to provide such a description of the nature and extent of the force used.  Thus, we think that the record falls short of establishing that there is no material dispute about the use of undue force and that a remand is required on that claim.

16
In fairness to the able district judge, we note that there is an affidavit supporting the view that plaintiff had been guilty of disruptive behavior on two prior occasions in August 1990.  It is a fair guess that, when the officers do file affidavits, they will not only assert the gist of the disciplinary reports relating to August 31, 1990, but will also seek to show that they did not use excessive force.  The medical records indicate a sprained shoulder but there is no indication of laceration or severe wounds.  Accordingly, we express no view on whether summary judgment may be appropriate if and when officer affidavits addressed to this incident are submitted.

17
The judgment of the district court is affirmed as to the claims of deliberate indifference to plaintiff's medical needs and the involuntary administration of an antipsychotic drug.  The judgment is vacated as to the claim that defendants used excessive force in removing plaintiff from the dining area and the matter is remanded for further proceedings.

1
 Because plaintiff was a pretrial detainee, the Eighth Amendment does not apply;  rather, the due process clause of the Fourteenth Amendment is the rubric under which plaintiff's claims are analyzed.   See Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979);   Elliot v. Chesire County, 940 F.2d 7, 10 & n. 1 (1st Cir. 1991) (applying "deliberate indifference" standard under the due process clause to a claim of inadequate medical treatment provided to a pretrial detainee)

2
 In 1992, in  Riggins v. Nevada, 112 S. Ct. 1810 (1992), the Court decided that a detainee had the right to be free from treatment with antipsychotic drugs during trial unless the state had determined that "treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of [the detainee's] own safety or the safety of others."   Id. at 1815 (emphasis added)

3
 In cases involving pretrial detainees, the Due Process Clause applies.   Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989)


410 Pa. 253 (1963)
Cathcart, Appellant,
v.
Crumlish.
Supreme Court of Pennsylvania.
Argued November 29, 1962.
March 19, 1963.
*254 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.
Samuel Dash, with him Morton Witkin, and Witkin and Egan, and Dash and Levy, for appellants.
David Berger, City Solicitor, with him Levy Anderson, First Deputy City Solicitor, for appellee.
OPINION BY MR. JUSTICE COHEN, March 19, 1963:
In pursuance of an investigation he was conducting, the district attorney of Philadelphia issued subpoenas commanding appellants to appear at his office on November 27, 1961 to testify on certain matters then under investigation. These subpoenas were issued on the alleged authority of section 8-409 of the Philadelphia Home Rule Charter. Appellants filed complaints in equity on November 22, 1961, seeking to enjoin the district attorney from requiring them to appear and testify. *255 After hearing argument, the lower court dismissed appellants' complaint, holding, inter alia, that section 8-409 of the Philadelphia Home Rule Charter empowered the district attorney to issue subpoenas. An appeal to this Court was then taken.
While this is not the typical case seeking to enjoin criminal proceedings, which the courts have traditionally refused to entertain,[1] nevertheless this action has all the earmarks of an intrusion into law enforcement processes which should be looked upon with great circumspection. Despite the fact that litigants are not always sensitive to this problem, courts should be alert to question the invocation of equitable jurisdiction where its use might obstruct the functioning of the district attorney's office.
Even though appellee does not raise the question, as an appellate court we must take cognizance of the lack of equitable jurisdiction in the court below since section 8-409[2] of the Philadelphia Home Rule Charter *256 prescribes a specific statutory procedure wherein the validity of subpoena issued under this section may be tested. See Stahl, Attorney General v. Insurance Company of North America, 408 Pa. 483, 486, 184 A. 2d 568 (1962). This section provides for the district attorney to report any non-compliance to a common pleas court which shall promptly hear arguments on the validity of the subpoena. Under the Act of March 21, 1806, P.L. 558, 4 Sm. L. 326, 46 P.S. § 156, it has long been held in various contexts that where a remedy or method of procedure is provided by an act,[3] those procedures should be followed exclusively. See, e.g., Knup v. Philadelphia, 386 Pa. 350, 126 A. 2d 399 (1956).[4] Applying this principle to the case before us, we conclude that appellants cannot question the validity of the subpoena until they are called before the common pleas court.[5]
Equity jurisdiction is also divested because of the presence of an adequate remedy at law. The remedy is adequate since appellants will suffer no irreparable harm, or for that matter any harm at all, if they have to wait until the district attorney invokes the enforcement *257 procedures before they can contest the subpoena. Unlike a judicial subpoena, public officers who are allegedly vested with subpoena power under section 8-409 are not given the power to enforce compliance. Disobedience is not punishable by imprisonment or fine unless it continues after a court has ordered compliance. See Annotation to § 8-409, Philadelphia Home Rule Charter. Therefore, appellants are not placed in the unfortunate dilemma of having to disobey the district attorney's subpoenas at their peril in order to contest their validity.
The two cases cited by appellees are distinguishable on this ground. In both Annenberg v. Roberts, 333 Pa. 203, 215, 2 A. 2d 612, 618 (1938) and Germantown Trust Co. v. Powell, 260 Pa. 181, 103 Atl. 596 (1918), it was not necessary to obtain a court order commanding the parties to obey before they were subject to penalties provided in the applicable statutes.[6] Unlike the instant case, the applicants for injunctive relief in those cases had to act at their peril in order to test the validity of the demand for documents.
Since equity was without jurisdiction, we conclude that the decree of the court below must be vacated.
Decree vacated at appellants' costs.
NOTES
[1]  See, e.g., Cooper v. McDermott, 399 Pa. 160, 159 A. 2d 486 (1960).
[2]  "Section 8-409. Power to Obtain Attendance of Witnesses and Production of Documents. Every officer, department, board or commission authorized to hold hearings or conduct investigations shall have power to compel the attendance of witnesses and the production of documents and other evidence and for that purpose it may issue subpoenas requiring the attendance of persons and the production of documents and cause them to be served in any part of the City. If any witness shall refuse to testify as to any fact within his knowledge or to produce any documents within his possession or under his control, the facts relating to such refusal shall forthwith be reported to any one of the Courts of Common Pleas of Philadelphia County and all questions arising upon such refusal and also upon any new evidence not included in the report, which new evidence may be offered either in behalf of or against such witness, shall as promptly as possible be heard by such court. If the court shall determine that the testimony or document required of such witness is legally competent and ought to be given or produced by him, the court may make an order commanding such witness to testify or to produce documents or do both and if the witness shall thereafter refuse so to testify or so to produce documents in disobedience of such order of the court, the court may deal with the witness as in other cases."
[3]  In Addison Case, 385 Pa. 48, 57, 122 A. 2d 272, 275 (1956), the Philadelphia Home Rule Charter was held to have the status of a legislative enactment.
[4]  See also Pittsburgh Coal Company v. Forward Township School District, 366 Pa. 489, 494, 78 A. 2d 253, 256 (1951); Bartron v. Northampton County, 342 Pa. 163, 19 A. 2d 263 (1941); Philadelphia v. Sam Bobman Department Store Company, 189 Pa. Superior Ct. 72, 149 A. 2d 518 (1959).
[5]  We should also note that at this stage of the proceedings, appellants' action seems premature since there always remains the possibility that for one reason or another the district attorney will not bring an enforcement action in the common pleas court.
[6]  See Act of October 11, 1938, P.L. 77, § 3 and Act of June 7, 1915, P.L. 878, §§ 10 & 13.


31 U.S. 141 (____)
6 Pet. 141
THE UNITED STATES
v.
JAMES PAUL.
Supreme Court of United States.

*142 The case was submitted to the court without argument, by Mr Taney, attorney-general of the United States; and by Mr Washington Quincy Morton, for the defendant.
Mr Chief Justice MARSHALL stated it to be the opinion of the court, that the third section of the act of congress, entitled "an act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes," passed March 3, 1825, is to be limited to the laws of the several states in force at the time of its enactment. This was ordered to be certified to the circuit court for the southern district of New York.


415 F.2d 1005
UNITED STATES of America, Appellee,v.Derek Wilson BEERE, Defendant-Appellant.
No. 168.
Docket 33699.
United States Court of Appeals Second Circuit.
Argued September 29, 1969.
Decided October 3, 1969.

Igor I. Sikorsky, Jr., Hartford, Conn., for defendant-appellant.
Paul S. Sherbacow, Asst. U. S. Atty. (Stuart H. Jones, U. S. Atty., and David Margolis, Asst. U. S. Atty., of counsel), for appellee.
Before FRIENDLY, SMITH and FEINBERG, Circuit Judges.
PER CURIAM:

1
Appellant Beere, who admittedly refused to submit to induction into the Armed Forces, contended, in defense to an indictment in the District Court for Connecticut, that the Local Board improperly rejected his claims to exemption as a conscientious objector and a minister. Judge Blumenfeld rejected his contentions in a careful Memorandum of Decision, embodying findings of fact and conclusions of law. We perceive no error in his decision and affirm the judgment.


Filed 7/17/15 P. v. Pimentel CA5

                  NOT TO BE PUBLISHED IN THE 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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                F067659
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF144335A)
                   v.

PATRICIA PIMENTEL,                                                                       OPINION
         Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
         Law Offices of Joy A. Maulitz and Joy A. Maulitz, under appointment by the
Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
        A jury found defendant Patricia Pimentel guilty of child abuse (Pen. Code, § 273a,
subd. (a)),1 but could not reach a decision on the special allegation of infliction of great
bodily injury on a child under the age of five years (§ 12022.7, subd. (d)). At the
sentencing hearing, the People dismissed the allegation of great bodily injury, and
Pimentel was placed on probation for four years and ordered to serve one year in county
jail.
        In this appeal, Pimentel contends she received ineffective assistance of counsel
when her attorney failed to ensure that reference to a prior Child Protective Services
(CPS) report was kept from the jury. In addition, she contends the trial court abused its
discretion by denying her motion to reduce the conviction to a misdemeanor, and she
claims the search condition of her probation is unconstitutional.
        We affirm the judgment.
                          FACTS AND PROCEDURAL HISTORY
        In November 2012, the Kern County District Attorney filed an information against
Pimentel charging her with a single count of causing or permitting her son, A., to be
inflicted with unjustifiable physical pain or mental suffering. It was further alleged that
Pimentel personally inflicted great bodily injury upon A.
        On May 28, 2013, Pimentel filed a motion in limine to exclude, among other
things, “evidence of prior bad acts committed by [Pimentel] against her children.” She
specifically identified three occasions of prior bad acts. First, Pimentel told a social
worker in 2006 that she heard voices telling her to kill her daughter, D., and that she
would put her hand over D.’s mouth to prevent her from breathing. Second, in late 2011,
when A. was one month old, he fell off a couch while in Pimentel’s care and an
ambulance had to be called. Third, Pimentel told a social worker in April 2012 that she
accidentally ate a marijuana-laced brownie prior to breastfeeding A. She argued that

1       All further statutory references are to the Penal Code unless otherwise noted.

                                                2.
evidence of these incidents was irrelevant, constituted improper character evidence, and
(to the extent it might be relevant) was substantially more prejudicial than probative.
       The People separately filed a motion in limine seeking to admit evidence that
Pimentel tried to suffocate her first infant child in 2006. The trial court agreed with
Pimentel that the probative value of evidence that she tried to suffocate her child in 2006
was substantially outweighed by the prejudicial effect. The court denied the People’s
motion and granted Pimentel’s motion to exclude evidence of prior bad acts committed
by Pimentel against her children.
Prosecution
       On July 9, 2012, Jed Grant was working as physician’s assistant in the emergency
department at San Joaquin Community Hospital in Bakersfield. That day, Pimentel
brought A., who was about seven months old, to the emergency department because he
had pain in his right arm. Grant met Pimentel around 4:00 p.m. She told Grant that A.
had been suffering arm pain and was not using his arm normally since she had picked
him up from a friend who had been watching the child. Pimentel said she did not know
how the injury occurred because the child was being watched by a neighbor.
       Grant observed swelling above A.’s right elbow. He tested A.’s range of motion
and ordered X-rays. A radiologist reviewed the X-rays and diagnosed a spiral fracture of
the mid to distal humeral diaphysis, the long part of the bone between the elbow and the
shoulder. Grant testified that a spiral fracture would usually require the limb to be caught
in something or grasped and twisted and the injury can be consistent with child abuse.
       After receiving the X-rays and diagnosis, Grant told Pimentel that A. had a spiral
fracture, and he asked again how the injury occurred. Pimentel seemed upset. She said
she did not know how the injury occurred because A. was at a friend’s house. She said
A. was fine when she dropped him off and when she picked him up he was not using his
arm correctly.

                                             3.
       About 5:40 p.m., Grant contacted the Kern County Sheriff’s Office because, he
explained, “we didn’t have a good reason for how the fracture occurred.” He also
ordered a skeletal survey, described as “like an entire body scan.” No other fractures
were found. Grant spoke to law enforcement, and A. was discharged from the hospital at
7:27 p.m.
       Kern County Sheriff’s Deputy Brian Hartley and his Field Training Officer,
Deputy Braydon Ferguson, were dispatched to San Joaquin Community Hospital around
6:30 p.m. for a possible child abuse case. Hartley spoke with Grant and Pimentel and
saw A. at the hospital. Pimentel told Hartley she left A. with neighbors while she went
job hunting. She said the neighbors were Mark and Marissa, who lived in an apartment
directly above hers. She told Hartley she felt comfortable leaving A. with her neighbors
because she had known them for two years. Pimentel said she noticed A.’s arm was
injured and talked to Mark and Marissa. They said her son was playing with other kids
and the kids must have been playing rough. Pimentel said she took A. to the hospital
within a half-hour of noticing the injury.
       Hartley then went to the address Pimentel gave for Mark and Marissa. No one
answered the door, and the apartment appeared to be vacant. While Hartley was
knocking on the door, neighbors asked who he was looking for and told him that Mark
and Marissa moved out about a month or two earlier. They told him the apartment was
vacant.2
       Hartley went downstairs to Pimentel’s apartment and knocked on the door. A boy
who identified himself as Freddie and appeared to be about 16 years old answered the
door. Pimentel and A. were not home. Hartley called Pimentel; she told him she was
waiting at the hospital for discharge papers and she would be home shortly. Later that

2      Pimentel later confirmed there was “nobody there” upstairs and the former neighbors had
been gone about two weeks.

                                              4.
evening, Hartley met Pimentel at her apartment. A. was not there. Pimentel told Hartley
she had left A. with her mother. Hartley asked for her mother’s telephone number, so he
could check up on A. At that point, Hartley and Pimentel were speaking outside, near the
front door of Pimentel’s apartment. Pimentel hesitated, looked at Hartley, looked at her
neighbors, and motioned for Hartley to go inside her apartment. When they were in her
apartment, Pimentel said A. was not with her mother, he was with one of her friends.
Hartley told her to call her friends and get A. home, so he could check on his welfare.
Hartley did not ask for the names of the friends. Within about five or 10 minutes, a boy
in his early teens showed up holding A. Hartley did not interview the boy.
       Pimentel told Hartley that what she said at the hospital was not true. She said she
caused A.’s injury, but it was an accident. She said she reached over the back of the
couch to pick up A. off the couch. She was holding diapers and other items with her left
arm, and she used her right arm to pick up A. She reenacted what happened,
demonstrating that she grabbed A.’s right arm and twisted him up and held on to him.
Pimentel did not think A. was injured at that time because he did not cry. She said that
several minutes later, he started to cry and she became concerned.
       Hartley called CPS. He felt A. was not safe with Pimentel because she had lied at
the hospital. He was also concerned that she “pawned him off to some friends” right
after A. was discharged from the hospital with an injury. After he called CPS, Hartley
asked to interview Pimentel again using a digital recorder, and she agreed. Hartley
testified that Pimentel was very cooperative and answered all of his questions. He
attempted to record the interview, but the first half of the interview was not recorded.
The part of the interview that was recorded was played for the jury. A CPS worker
arrived and took custody of A.
       In the recorded portion of the interview, Pimentel said she picked up A. because
she did not want him to fall and she used one arm. A. was not crying. Later, she said,
“when I was trying to feed him and stuff, and when I touched his arm or something, he

                                             5.
was crying.” She realized A. was hurt about five to 10 minutes after she picked him up.
Her friend, Alicia, drove them to the hospital.3 Hartley asked what Pimentel told medical
staff. She responded, “That I left him with my friend … while I went … to do
unemployment, to look for a house, and when I came back um, my friend told me that
umm his kids were playing with him, so um, he probably got a little bit hurt. Cuz he kept
crying when they touched his arm.” Pimentel told Hartley she did go house hunting and
to an appointment but she “lied about leaving him with a friend.” Hartley asked why she
lied, and Pimentel said, “Cuz I was afraid they were going to take my son.” She said her
friends, “Laesha, Freddie, and Aaron” were at home while she was at the hospital.
Pimentel admitted she lied when she told Hartley that A. was with her mother. She stated
that she had a seven-year-old daughter who lived with her mother.
       The next day, July 10, 2012, Monica Goodell-Bonello, a social worker with the
Department of Human Services (DHS), met with Pimentel at the DHS office. Pimentel
told Goodell-Bonello she had an appointment the previous day at 1:30 p.m. with HEAP
for assistance to pay her PG&E bills and then she went to look at a couple of apartments
because she was planning to move. She left A. at home with her roommate, Laesha.
Pimentel said she returned home around 2:15 or 2:30 p.m. A. was on the couch and he
started to cry and fuss, and she went to grab him. She only had one arm free, and she
picked him up by one arm. Pimentel heard a pop, but A. did not cry and she thought he
was fine. She reported that Laesha was not present in the apartment at that time.
       Pimentel further told Goodell-Bonello she lied to medical staff that A. was injured
at a neighbor’s home because she was afraid CPS would take him away. Goodell-

3       We have listened closely to the recording and read the transcript, both of which are part
of the record on appeal. According to the transcript, Pimentel said “Alicia” gave her a ride to the
hospital. We hear either “Alicia” or “Aneesha.” It does not sound like Pimentel said “Laesha,”
although we cannot rule out the possibility that she was referring to Laesha, whom she later
identified as her roommate.

                                                6.
Bonello tried to contact Pimentel’s purported roommate, Laesha, but Pimentel said she
did not know Laesha’s last name or how to contact with her.
       Mitchell Adams, a Senior Deputy with the Kern County Sheriff’s Office in the
child abuse segment of the Detective Division, was assigned to follow up on A.’s case.
On July 11, 2012, Adams interviewed Pimentel. The interview was recorded, and the
recording was played for the jury. In the interview, Pimentel stated that A.’s father was
“not in the picture” and that she did not know who he was. She told Adams her friend,
Laesha, was staying at her home but she was “just staying for a few weeks.”
       Pimentel said that on the day A. was injured, she had an appointment. When she
got home, she was trying to clean up and she had a lot of things in her arms. A. was on
the couch and she did not want him to fall over. She grabbed him with one arm to set
him in his crib. She heard something pop but he did not cry. A few minutes later,
however, she noticed he was not lifting up his arm and, when she touched it, he would
cry. So she took him to the hospital.
       Pimentel said her friend, who was a next door neighbor, drove them to the
hospital. Adams asked for the neighbor’s name, and Pimentel responded, “That’s a lot of
information.” She said a lot of people “around there” do not like to give their names.
Then she said it was her roommate, Laesha, who gave her a ride.
       Adams asked where Pimentel came up with the story that she left A. with a friend
and kids may have injured him. She said she did not know and it “came in [her] head
because [she] was afraid.” Pimentel told Adams she already had a CPS report for her
son. After they left the hospital, Pimentel gave A. to her friend because she was afraid he
would be taken away. The friend was Laesha. Pimentel admitted that she lied to the
deputies that she left A. with her mother and said, “I kept making up a bigger story.”
       Adams asked why she did not tell the deputies A. was with a friend. Pimentel
responded that there were “a lot of things going through [her] head” because she had
“been in the system.” Pimentel demonstrated to Adams how she grabbed A. when he

                                            7.
was on the couch. She “felt something” and “heard something pop” and it “sounded like
a bone.” She did not think she broke A.’s arm, but she thought it popped out of place or
was dislocated. Adams observed, “it takes quite a bit” to break an arm. Pimentel said,
“It’s cuz—when I pick him up he always moves. [¶] … [¶] So when he kicks his legs,
he moves a lot.” Adams asked if she had been “maybe a little rough,” and she agreed,
“probably a little bit.” She said she had picked him up like that in the past “[a] lot” but
nothing had ever happened. She said that sometimes she may not notice “how rough I
am when I’m cleaning.” Pimentel told Adams that she gets frustrated because she is a
single mother doing everything at once. Adams referred to prior CPS reports on
Pimentel, and she stated that she had anger and depression issues in the past.
       For his investigation, Adams spoke to CPS workers and Pimentel. He did not
interview any other witnesses, and he did not go to Pimentel’s apartment complex to
attempt to locate Laesha.
Defense
       Pimentel testified on her own behalf. At the time of trial, she was 21 years old and
A. was 18 months old. She and A. moved into their apartment in early 2012. At first,
just the two of them lived in the apartment. Pimentel was disabled and was not
employed. Around April 2012, she took in roommates. They were Laesha Johnson,
Ernest Lery, Aaron Cresswood, and Johnson’s four children. Johnson’s children were all
under the age of ten. Johnson was in her late 20’s, Lery was in his early 30’s, and
Cresswood was 16 years old at the time. Lery and Cresswood were brothers.
       Pimentel met Lery the day she moved in because he was her neighbor in the
apartment complex. Lery was living with Johnson, her children, and Cresswood. Lery
was the father of two of Johnson’s children. Lery and the others moved in with Pimentel
because she “started being in a relationship” with Lery. She heard rumors about Lery
being a pimp and she tried to end the relationship. At first, Lery was a “friend with
benefits,” but then Pimentel ended up working for Lery as a prostitute. Johnson was also

                                              8.
a prostitute. When Pimentel would try to end her relationship with Lery, he would beat
her.
       Pimentel moved out of the apartment a few days or a week after A. was taken
away on July 9, 2012. When she left the apartment, she did not take anything—no cell
phone, clothes, or furniture.
       On July 9, 2012, Pimentel went to a management company to see if she were
qualified to rent a house. She also went “for the PG&E” at 1:00 p.m. She left A. at home
because he had eczema and the sun irritated his skin. Before she left the apartment, A.
was not injured. She left him with Lery and the other children. Cresswood and his
friend, Freddie, were also in the apartment. Johnson drove Pimentel to her appointments.
Pimentel did not know how to drive.
       When Pimentel returned home, Lery was holding A. Johnson’s children were also
there. Pimentel noticed that A. looked sad. Pimentel testified that she did not allow Lery
to touch her son because she did not trust him. Johnson’s daughter told Pimentel, “‘my
daddy [Lery] hit your son.’” Pimentel asked Lery if he hit her son, and he did not
respond. Pimentel then took A. to the hospital.
       Pimentel testified that, when she spoke to Grant and Goodell-Bonello, she did not
tell the truth because she was afraid of Lery. Lery would beat her “all the time.” He had
choked her and she had become unconscious. Pimentel also lied to Hartley when she
spoke with him at the hospital. She testified that she lied because she was afraid of what
might happen to her, A., and her family.
       When A. was discharged from the hospital, Johnson gave Pimentel and A. a ride
home. Johnson’s children, along with Cresswood and Freddie, were at home, but Lery
was no longer at the apartment. Hartley knocked on Pimentel’s door about 15 to
20 minutes later. At that time, she was by herself in the apartment. She spoke with
Hartley at her doorway. Pimentel asked Harley to come inside because Lery’s sister and
Lery’s friends were nearby in the apartment complex. She told Hartley that A. was with

                                            9.
her mother, but this was not true. A. was with Cresswood’s friend, but it was not
Freddie. Pimentel did not recall the friend’s name. Cresswood’s friend and Johnson had
taken A. and Johnson’s children in a Dodge Durango. Pimentel did not know where they
were going. Hartley told her to arrange to have her son returned, and Pimentel called
Lery and told him to bring A.
       After Pimentel and Hartley went in her apartment, Pimentel still did not tell
Hartley the truth. At trial, Pimentel explained that she could not speak the truth because
the door was open and Lery’s sister “was right there.” CPS workers arrived and took A.,
and the deputies left. Shortly after that, Lery, Johnson, her children, and Cresswood
returned to the apartment. Pimentel started telling Lery she was angry, and he beat her.4
       The next day, Johnson drove Pimentel to her appointment with Goodell-Bonello.
The following day, Pimentel met with Adams. Pimentel did not tell the truth to Adams
because she was afraid of Lery and because Johnson drove her to the appointment and sat
next to her in the lobby. Pimentel described to Adams a scenario in which she injured her
son (by grabbing him from the couch) based on what Grant had told her about how A.’s
spiral fracture could have been caused by twisting. The scenario she described, however,
did not happen. Pimentel denied breaking A.’s arm and denied ever picking him up in an
awkward position.
       Pimentel testified that she told the truth about A. to her foster mother, Vienna
Fisher. This occurred about a week after A. was injured and after Pimentel left Lery.
She told Fisher she believed Lery could have hurt A. Pimentel talked to her therapist,
Angela Hernandez, and another mental health case worker about her situation. In
September 2012, Pimentel told the truth about what happened to her attorney in the
juvenile dependency case involving her son.

4      In cross-examination, Pimentel explained that Lery beat her in the head, but not the face,
and he did not leave bruises a person would see.

                                               10.
         Pimentel was arrested for prostitution in September 2012. She was arrested in this
case in November 2012. She was not aware that there was a warrant for her arrest for
child abuse, and she had visited A. at the DHS the day before her arrest.
         Hernandez, a mental health therapist working for Kern County, had Pimentel as a
client until March 2012 and, at the time of trial, had known Pimentel for six years.
Hernandez testified that she talked to Pimentel at the end of October 2012 (when
Pimentel was no longer her client). Pimentel told her a man who was living with her
“was making her a prostitute.” Pimentel also said A. had broken his arm, and she told
Hernandez how she believed his arm was broken. Pimentel said she left A. at home with
the man who was living with her and, when she returned, A. was crying and something
was wrong with him. Pimentel took A. to the hospital.
         Fisher testified that she had known Pimentel for six or seven years and that
Pimentel was her foster daughter. About a week after A.’s injury, Pimentel told Fisher
that she did not hurt A. She said her boyfriend had done it. Pimentel was crying and
upset.
Verdict and Sentence
         The jury found Pimentel guilty of child abuse. It could not reach a decision on the
allegation of personal infliction of great bodily injury, and the trial court declared a
mistrial as to the enhancement. On July 2, 2013, Pimentel filed a motion to reduce the
child abuse conviction to a misdemeanor pursuant to section 17, subdivision (b).
         On July 8, 2013, the trial court denied Pimentel’s motion to reduce the conviction
to a misdemeanor. The court placed Pimentel on probation for a period of four years and
ordered her to serve one year in the custody of the Kern County Sheriff.
         Pimentel filed a notice of appeal on July 22, 2013.

                                             11.
                                       DISCUSSION
I.     Ineffective assistance of counsel
       As we have mentioned, the trial court granted Pimentel’s motion in limine, ruling
“evidence of prior bad acts committed by [Pimentel] against her children” was not
admissible. On appeal, Pimentel contends her attorney provided ineffective assistance of
counsel by failing to ensure that discussion of a prior CPS report was excised from a tape
played for the jury. We disagree.
       A.     Background
       On May 31, 2013, the parties discussed the audiotapes and transcripts of
Pimentel’s interviews with Hartley and Adams. The prosecutor raised the issue of
redacting the interviews. She stated: “[T]here are a couple of transcripts in this case. I
had some concerns, based on the Court’s in limines, about mention of her first child in
the first interview. She mentions the child a lot in her second interview, which I think
we’re going to need to talk about.”
       Pimentel’s attorney responded that he was not concerned about Pimentel’s
statement to Hartley that she had an older daughter who lived with her mother. He
explained that he did not think it was prejudicial.
       As to the Adams interview, the prosecutor noted, “there is mention of that first
child and the fact that she was taken away, I think several times throughout that
interview, and that may be something that we need to [¶] … [¶] [e]xcise that out.” She
suggested Pimentel’s attorney talk to her about “the areas he’s got a problem with.”
       There is no further discussion on the record between the parties about redacting or
excising the interview, but the recording and transcript evidently were edited for content.
Before the jury heard the interview, the court stated: “It’s going to be obvious …
listening … to this, that this tape has been edited.… [¶] The law states you’re not to hear
certain testimony that’s deemed irrelevant by me, so I’ve had that taken out.”

                                             12.
      During the interview, Pimentel said she told medical personnel she had left A. at a
friend’s house because she was afraid. The jury heard the following:

                “Adams:      Where did you come up with that story?

                “[Pimentel]: I don’t know. It just came to my head because I was
      afraid.

             “Adams:         I mean that just popped in your head? What were you
      afraid of?

             “[Pimentel]: Cuz, um, I already had a CPS report for my son. It
      was just the fact that uh, they always bring a lot of things and every time …
      there’s a CPS report, they always bring out the negative parts.

                “Adams:      Well, sure, sure they do.

             “[Pimentel]: So that’s, uh, that[’s] why … [I] was scared that they
      bring out negative parts and no one sees the new stuff that I’ve been
      doing.” (Italics added.)
      In his closing statement, Pimentel’s attorney referred to her experience with CPS.
He argued to the jury:

             “If she had inflicted that injury on [A.], why would she immediately
      take him to the hospital? Wouldn’t she be expected to try and conceal it by
      keeping [A.] and seeing if it was just a bruise or if it was just a sprain?
      Wouldn’t she just keep him in the house and hope it’s going to get better
      and not have to report it to anyone?

             “She knows if she goes into the hospital, they’re likely to call the
      cops. You heard testimony she’s dealt with CPS before. She’s been
      through the system. If she broke [A.]’s arm, why would she rush him to the
      hospital right away … where it’s going to be discovered right away her
      son’s arm is broken?

             “The reason she took him into the hospital is because she cared for
      her son.”

                                             13.
       B.     Analysis
       “Establishing a claim of ineffective assistance of counsel requires the defendant to
demonstrate (1) counsel’s performance was deficient in that it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficient representation prejudiced the defendant .…” (People v. Dennis (1998) 17
Cal.4th 468, 540.)
       “Our review is deferential; we make every effort to avoid the distorting effects of
hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time.
[Citation.] A court must indulge a strong presumption that counsel’s acts were within the
wide range of reasonable professional assistance. [Citation.]” (People v. Dennis, supra,
17 Cal.4th at p. 541.) “In general, reviewing courts defer to trial counsel’s tactical
decisions in assessing a claim of ineffective assistance, and the burden rests on the
defendant to show that counsel’s conduct falls outside the wide range of competent
representation. [Citations.] In order to prevail on such a claim on direct appeal, the
record must affirmatively disclose the lack of a rational tactical purpose for the
challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.)
       “When a defendant makes an ineffectiveness claim on appeal, the appellate court
must look to see if the record contains any explanation for the challenged aspects of
representation. If the record sheds no light on why counsel acted or failed to act in the
manner challenged, ‘unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation’ [citation], the case is
affirmed [citation]. In such cases, the ineffective-assistance claim is more appropriately
made in a petition for habeas corpus. [Citations.]” (People v. Babbitt (1988) 45 Cal.3d
660, 707.)
       Pimentel argues that evidence of her previous dealing with CPS was irrelevant and
inflammatory. She asserts defense counsel clearly viewed the evidence as extremely
damaging, as he filed a motion in limine to exclude the evidence. She claims, “There

                                             14.
was no conceivable reason for defense counsel to allow the evidence to come in after he
had litigated and won a motion to keep it out. Counsel’s failure to follow through on this
important ruling was inexcusable, and deprived [Pimentel] of her right to effective
assistance of counsel.”
       As a preliminary matter, we question the premise of Pimentel’s argument that her
statements about a CPS report were covered by her motion in limine. She asked for the
court to exclude any evidence of “prior bad acts committed by [her] against her children.”
Reference to prior contact with CPS regarding A., without more, was not evidence of
prior bad acts committed by Pimentel against A.
       In any event, we cannot say that Pimentel’s attorney’s conduct fell outside the
wide range of competent representation. The attorney’s rational tactical purpose in
allowing reference to Pimentel’s prior contact with CPS is demonstrated by the argument
he made to the jury. He argued that if Pimentel had personally inflicted injury on A., she
would not have taken him to the hospital because she would have known CPS would be
involved.
       Pimentel’s attorney was faced with a client who offered three different stories
about how her son was injured and who admittedly allowed her violent pimp to live with
her and A. Attempting to present Pimentel in the best possible light given the
circumstances, Pimentel’s attorney decided to use her CPS history to bolster his argument
that simply taking A. to the hospital was evidence that Pimentel had not injured him.
Even if the jury believed Pimentel’s trial testimony, she likely would be perceived as a
flawed parent. Her attorney reasonably could have determined that the risk of prejudice
from the reference to a prior CPS report was outweighed by its relevance to show that, in
spite of her problems, Pimentel was a caring parent who would not hurt her child and
would take him to the hospital if he were injured. Given the indisputable evidence that
Pimentel lied at least twice about what happened to A., her attorney also may have
thought evidence of her prior experience with CPS could help explain why she lied to

                                            15.
medical personnel and law enforcement initially. Since we can imagine a rational tactical
purpose for her attorney’s conduct, Pimentel’s claim of ineffective assistance of counsel
fails.
II.      Motion to reduce conviction to a misdemeanor
         Pimentel contends the trial court abused its discretion in denying her motion to
reduce the conviction to a misdemeanor. We are not convinced.
         A.     Background
         On July 2, 2013, Pimentel filed a motion to reduce her conviction to a
misdemeanor pursuant to section 17, subdivision (b). She argued the facts and
circumstances of the case weighed strongly in favor of her request because she was only
20 years old at the time of the offense, she had little or no prior criminal history, and “[a]t
worst, it appears that this crime was the result of a young mother who did not have the
proper life skills to deal with being a single mother and who ended up harming her son by
accident or through carelessness.” She also briefly recounted her personal history of
sexual abuse as a child, rejection by her parents, pregnancy at around 13 years old, and
placement in foster care, and argued these circumstances militated in favor of lenience.
         The trial court denied the motion. The court stated that it gave “serious
consideration on what to do here.” It considered “California Rules of Court,
Rule [4.410], in addition to similar sentencing guidelines, the nature and circumstances of
the offense here, [Pimentel’s] appreciation of [and] attitude toward the offense, her
trait[s] and character as evidence by her behavior and demeanor at trial.”
         The court explained:

                 “There’s no way I can send her to prison, in my mind, for what
         happened here. In my opinion, what happened here is we had a young,
         frustrated mother who picked her baby up wrong and broke the baby’s arm.
         The problem … here is that she repeatedly lied about it to law enforcement
         and medical personnel before she finally came clean.

                                              16.
              “And I read the probation officer’s report. They interviewed her
       about it, and she continues to deny committing the crime. She said, ‘I
       didn’t hurt my son. I’m doing someone else’s crime. I’m guilty of neglect
       but not what they’re charging me.’ So in light of the Alvarez[5] case, it
       states whether or not the defendant’s appreciation of [and] attitude toward
       the offense, I don’t see it.

              “I certainly wish she had taken a different tack here, admitted her
       offense and was ready to move on but she’s not. So, again, under
       California Rule[s] of Court[, rule 4.410 and] the Alvarez case, it’s not a
       prison case but I’m not prepared to reduce it to a misdemeanor.

               “I don’t think she falls in that particular category but it’s close for a
       young mother picking her … child up incorrectly and breaking the arm.
       The way … the testimony was of how she picked the baby up, twisting the
       baby and causing the spiral fracture to the arm. I’ll deny the motion.”
       (Italics added, underscoring omitted.)
       B.      Analysis
       Pimentel was convicted of violation of section 273a, subdivision (a). This offense
is punishable by imprisonment in county jail not exceeding one year, or in state prison for
two, four, or six years, making the offense a “wobbler.”6 (§ 273a, subd. (a).)
       Under section 17, subdivision (b), a trial court has discretion to reduce a wobbler
to a misdemeanor. (See Park, supra, 56 Cal.4th at p. 790.) We review a trial court’s
sentencing decision under section 17 for abuse of discretion. (Alvarez, supra, 14 Cal.4th
at p. 977.) Although a trial court is granted “broad authority” by section 17,
subdivision (b), a sentencing decision under the statute must be based on “individualized
consideration of the offense, the offender, and the public interest.” (Alvarez, supra, at

5      People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 (Alvarez).
6       “The Legislature has classified most crimes as either a felony or a misdemeanor, by
explicitly labeling the crime as such, or by the punishment prescribed.… There is, however, a
special class of crimes involving conduct that varies widely in its level of seriousness. Such
crimes, commonly referred to as ‘wobbler[s]’ [citation], are chargeable or, in the discretion of
the court, punishable as either a felony or a misdemeanor; that is, they are punishable either by a
term in state prison or by imprisonment in county jail and/or by a fine. [Citations.]” (People v.
Park (2013) 56 Cal.4th 782, 789 (Park).)

                                                17.
p. 978.) Relevant considerations include “‘the nature and circumstances of the offense,
the defendant’s appreciation of and attitude toward the offense, or his traits of character
as evidenced by his behavior and demeanor at the trial’” and, when appropriate, “the
general objectives of sentencing such as those set forth in California Rules of Court,
rule [4.410].” (Alvarez, supra, at p. 978.)
       We discern no abuse of discretion in this case. The trial court stated the
appropriate considerations for deciding a motion under section 17, subdivision (b), and
properly based its decision on Pimentel’s appreciation of and attitude toward the offense.
After hearing all the testimony at trial and reviewing the probation officer’s report, the
court determined Pimentel personally injured A. by picking him up “wrong,” lied to
medical personnel and law enforcement about what happened, and continues to deny that
she committed the crime. Under the circumstances, the court decided Pimentel’s
“appreciation of an[d] attitude toward the offense” (or rather her failure to appreciate and
acknowledge her offense) did not warrant a reduction of her conviction to a
misdemeanor.
       Pimentel argues that because the evidence of guilt was not overwhelming, the trial
court should not have relied on her continued denial of guilt in deciding the motion. She
cites People v. Key (1984) 153 Cal.App.3d 888, but the case is inapposite. In Key, the
Court of Appeal held that lack of remorse was not a valid reason to aggravate a sentence
in a case where the defendant denied committing the crimes and the evidence was not
overwhelming. (Id. at pp. 900–901; see Cal. Rules of Court, rule 4.421 [identifying
circumstances in aggravation without mention of the defendant’s lack of remorse or
denial of guilt].) The Court of Appeal, however, did not have occasion to consider
whether a defendant’s lies7 and denial of guilt may be considered by a trial court deciding
a request to reduce a conviction to a misdemeanor.

7      On appeal, Pimentel does not dispute that she lied to medical personnel and law
enforcement about what happened to A.

                                              18.
       Pimentel offers no other legal authority for her position. Without such authority,
we decline to hold that the trial court abused its discretion when it denied her request to
reduce her conviction to a misdemeanor by relying on the facts (1) Pimentel lied to
medical personnel and law enforcement the day A. was injured and (2) she continues to
deny she personally harmed her son. These facts are related to Pimentel’s appreciation of
and attitude toward the offense and are appropriate individualized considerations on
which to base a decision under section 17, subdivision (b). (See Alvarez, supra, 14
Cal.4th at p. 978.)
III.   Probation condition
       At the sentencing hearing, the trial court granted probation with terms and
conditions including the following: “That she permit her person, residence, motor
vehicle, and/or possessions to be inspected or searched for narcotics or dangerous drugs
by a probation officer or any law enforcement officer at anytime [sic] during her
probationary term and without prior notice of intent to inspect or search, with or without
a search warrant, warrant of arrest or reasonable cause.” Pimentel did not raise an
objection to this or any of the probation conditions at the hearing.
       Now, Pimentel contends the search condition is unreasonable and violates her
federal constitutional rights. We reject this contention because Pimentel forfeited the
issue and the contention fails on the merits.
       Pimentel claims, “Although search conditions are frequently imposed in cases
involving narcotics or weapons, it makes no sense to impose a search condition in a case
like this one, in which [Pimentel]—who had no criminal record—picked up her child the
wrong way off a couch.” This is an argument that the search condition was unreasonable
because it was not related to the crime of which Pimentel was convicted. In People v.
Welch (1993) 5 Cal.4th 228 (Welch), however, our Supreme Court held that failure to
raise a timely claim that a probation condition is unrelated to the underlying offense or

                                                19.
future criminality results in forfeiture of the claim on appeal. (Id. at pp. 230, 233–237.)
Pimentel has forfeited the issue by failing to raise it with the trial court.
       Even if we were to consider her claim, it is without merit. Pimentel correctly
asserts that a probation condition that requires or forbids conduct which is not itself
criminal is valid only if the conduct is reasonably related to the crime of which the
defendant was convicted or to future criminality. (See Welch, supra, 5 Cal.4th at
pp. 233–234.) But she does not identify any probation condition that regulates
noncriminal conduct. Her probation terms and conditions do not, for example, require
that she avoid alcohol. (Cf. People v. Kiddoo (1990) 225 Cal.App.3d 922, 927–928
[where alcohol was not related to crime, probation condition that the defendant not
possess or consume alcoholic beverages was invalid], disapproved on other grounds in
Welch, supra, at p. 237.)
       Here, there is evidence that Pimentel has a history of illegal drug use, which
affected her child. Of most significance, she admitted to a social worker in April 2012
that she accidentally ate a marijuana-laced brownie prior to breastfeeding A.8
       Further, if a probation condition serves the statutory purpose of “reformation and
rehabilitation of the probationer” (§ 1203.1, subd. (j)), such a condition is reasonably
related to future criminality and is valid, even if it is not related to the underlying crime.
(People v. Moret (2009) 180 Cal.App.4th 839, 851; People v. Balestra (1999) 76
Cal.App.4th 57, 65.) In this case, the search condition is related to Pimentel’s
documented drug use and is therefore valid because it serves to reform and rehabilitate
her. For all of the foregoing reasons, Pimentel’s challenge to the search condition fails.

8       Pimentel described additional recent drug use at trial. She testified that Lery would drug
her when she did not want to work as a prostitute and that she “smoked a little weed to put
[herself to] sleep” after A. was taken away on July 9, 2012. Pimentel told a probation officer
“she had a prior history with marijuana abuse but would not elaborate.”

                                               20.
                                 DISPOSITION
     The judgment is affirmed.

                                               ___________________________
                                                                  KANE, J.

WE CONCUR:

___________________________
 HILL, P.J.

___________________________
 GOMES, J.

                                     21.


575 F.2d 1338
U. S.v.Mitchell
No. 77-5348
United States Court of Appeals, Sixth Circuit
4/17/78
N.D.Ohio
AFFIRMED