Filed 12/29/14 P. v. King CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067424

                   v.                                                    (Super. Ct. No. F12909430)

JAMES EARL KING,                                                                     OPINION

         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Wayne R.
Ellison, Judge.
         Thomas M. Singman, 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, Carlos A. Martinez and Kelly E.
LeBel, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Levy, Acting P.J., Poochigian, J., and Franson, J.
       Defendant James Earl King was convicted by jury trial of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1);1 count 1) and inflicting corporal injury against a
cohabitant (§ 273.5, subd. (a); count 2). The jury also found true the allegation that
defendant personally used a dangerous weapon in the commission of count 2 (§ 12022,
subd. (b)(1)). Defendant admitted two prior strike convictions and five prior prison terms
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The trial court
sentenced him to 25 years to life in prison.
       On appeal, defendant contends the trial judge committed misconduct by
commenting in front of the jury that he was surprised defendant was not calling any
witnesses. We affirm.
                                       DISCUSSION
       The prosecution presented evidence that defendant hit his girlfriend and struck her
with a cane during an argument, causing her injuries. At the close of the prosecutor’s
case, the defense rested without calling any witnesses, even though defense counsel had a
defense witness (defendant’s ex-girlfriend) waiting to testify (a fact known to the court
but not the jury). The court commented: “Okay. I think, obviously, you can tell I’m a
little bit surprised about that. You are not to infer anything from the fact that I’m
surprised, ladies and gentlemen. It was just not necessarily what I expected.”
       Defendant argues that the court’s comment was “fraught with implications which
negatively and prejudicially affected [his] chances of a favorable verdict” and violated his
constitutional rights to remain silent, to have an impartial jury, and to receive due process
of law. He explains that “while the court’s comment was apparently innocently intended,
it conveyed the unmistakable impression that in the court’s opinion the testimony of the
prosecution’s witnesses was compelling enough so that in the absence of rebuttal by

1      All statutory references are to the Penal Code.


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defense witnesses, in particular, [defendant], who was the only percipient witness to the
events other than [his girlfriend], a guilty verdict was warranted.” Defendant says the
court’s comment amounted to a comment on defendant’s failure to testify, shifted the
burden of proof to defendant, biased the jury in favor of the prosecution, and directed a
guilty verdict. We disagree.
       “‘[A] judge should be careful not to throw the weight of his judicial position into a
case, either for or against the defendant.’ [Citation.] [¶] Trial judges ‘should be
exceedingly discreet in what they say and do in the presence of a jury lest they seem to
lean toward or lend their influence to one side or the other.’ [Citation.]” (People v.
Sturm (2006) 37 Cal.4th 1218, 1237-1238.)
       We evaluate judicial conduct on a “‘case-by-case basis, noting whether the
peculiar content and circumstances of the court’s remarks deprived the accused of his
right to trial by jury.’” (People v. Sanders (1995) 11 Cal.4th 475, 531-532.) A particular
comment’s propriety and prejudicial effect are judged by its content and by the
circumstances in which it was made. (Id. at p. 532.) “The role of a reviewing court ‘is
not to determine whether the trial judge’s conduct left something to be desired, or even
whether some comments would have been better left unsaid. Rather, we must determine
whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as
opposed to a perfect, trial. [Citation.]’ [Citation.]” (People v. Harris (2005) 37 Cal.4th
310, 347.)
       Here, even if we assume the court’s comment was improper, we conclude it was
not so prejudicial that it denied defendant a fair trial. Immediately after the court stated it
was surprised the defense was not calling any witnesses, the court admonished the jurors
not to infer anything from the fact that it was surprised. Furthermore, the court instructed
the jurors that the defense was not required to present evidence or prove the defendant
was not guilty because he was presumed innocent, that the jurors must decide the facts of

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the case based only on the evidence presented at trial, that a criminal defendant is
presumed innocent and must be proven guilty beyond a reasonable doubt, and that the
jurors were required to decide the facts of the case and use only the evidence presented in
the courtroom. The court instructed: “A defendant has an absolute constitutional right
not to testify. He may rely on the state of the evidence and argue that the [P]eople have
failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at
all the fact that the defendant did not testify. Do not discuss that fact during your
deliberations or let it influence your decision in any way.” And later the court also
instructed: “Do not take anything that I said or did during the trial as an indication of
what I think about the facts or the witnesses or what your verdict should be.”
       A reviewing court presumes the jurors followed the court’s admonitions and
instructions, unless the record affirmatively indicates otherwise, and speculation on
appeal that the jury might not have followed those admonitions and instructions does not
support reversal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.) Accordingly,
we conclude any impropriety in the court’s comment was cured by the court’s immediate
admonition and thorough instructions. The comment did not deny defendant a fair trial.
                                      DISPOSITION
       The judgment is affirmed.




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