People v. Simentel CA5

Filed 3/2/22 P. v. Simentel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079787 Plaintiff and Respondent, (Kern Super. Ct. No. DF014184A) v.

MARTIN ABEL SIMENTEL, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. Jose R. Benavides, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

INTRODUCTION Appellant and defendant Martin Abel Simentel was convicted by a jury of assault with a deadly weapon and two misdemeanor drug charges. On appeal, defendant claims that the judge’s comments during voir dire regarding a defendant’s right to not testify were prejudicial and infringed on his right to remain silent. We find no violation of defendant’s Fifth Amendment rights occurred as a result of the trial court’s comments and affirm the judgment of the trial court. FACTS Procedural History The Kern County District Attorney filed an information on April 5, 2019, charging defendant with the following offenses (count 1) assault with a deadly weapon, a felony (Pen. Code, § 245, subd. (a)(1); (count 2) unlawful interference with a business establishment open to the public, a misdemeanor (Pen. Code, § 602.1, subd. (a); (count 3) misdemeanor possession of methamphetamine, a misdemeanor (Health and Safety Code, § 11377, subd. (a); (count 4) misdemeanor possession of drug paraphernalia, misdemeanor (Health and Safety Code, § 11364); and (count 5) misdemeanor being under the influence of methamphetamine, misdemeanor (Health and Safety Code, § 11550, subd. (a)). Defendant pleaded no contest to count 5 for being under the influence of methamphetamine at a jury trial held on July 8, 2019. During voir dire, defendant’s counsel moved for a mistrial and new venire in response to the trial court’s comments on a defendant’s right to remain silent. The trial court denied both motions prior to resuming voir dire, and it dismissed count 2 for interference with a business establishment on the motion of the prosecutor at the close of evidence. The jury returned verdicts of guilty on counts 1, 3, and 4. On August 8, 2019, the trial court sentenced defendant to the upper term of four years in state prison on count 1, concurrent term of one year in jail on count 3, and six