People v. King CA5

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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