People v. Bean CA3

Filed 8/21/14 P. v. Bean CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Lassen) ----

THE PEOPLE,

Plaintiff and Respondent, C072954

v. (Super. Ct. No. CH027894)

ERICK BEAN,

Defendant and Appellant.

A jury convicted defendant Erick Bean of battery by a prisoner on a non-confined person (Pen. Code, § 4501.5)1 and sustained three prior strike convictions. (§§ 667, subd. (b)-(i), 1170.12.) The trial court sentenced defendant to serve six years in state prison. On appeal, defendant contends the trial court’s comments to the jury regarding the testimony of a prosecution witness constituted prejudicial error. We conclude the trial

1 Undesignated statutory references are to the Penal Code.

1

court’s comments were improper because they vouched for the credibility of a witness based on facts not in the record. However, based on the other testimony and evidence, we conclude the error was harmless. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The Crime On the morning of January 5, 2010, Correctional Officer Brett Schaake was retrieving meal trays from the prisoners’ cells at High Desert State Prison. He would go to the cell door, slide the security port open, and the prisoners would pass the trays through the port. When he arrived at defendant’s cell, defendant was standing next to the door and inmate Rivera was sitting on the top bunk, leaning against the back wall. Officer Schaake opened the security port and took the trays from defendant. Next, defendant swung his arm back and forward towards the cell door and Officer Schaake felt a liquid hit him. After telling the inmates to get down, Officer Schaake determined the liquid hit him on the waist, chest, arm, and upper leg. Correctional Officer Jason Robinette responded to defendant’s cell after hearing Officer Schaake’s order to get down. Upon arrival, he saw a wet spot on Officer Schaake’s jumpsuit, and a milk carton, ketchup packet, and paper cup on the floor outside defendant’s cell. Correctional Officer Adelaio Rodriguez observed the liquid on Officer Schaake’s jumpsuit and the wet spot, milk carton, and other food items on the floor by defendant’s cell. Rodriguez questioned defendant about the incident. Defendant said he was agitated and upset for not receiving psychiatric care. Procedural Background Rodriguez testified on direct examination that defendant told him he had been “agitated and upset for not receiving psychiatric care.” He wrote two reports in the case, one public and one confidential. He wrote a confidential report because he considered