P. v. Talburt CA5

Filed 6/19/13 P. v. Talburt 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064202 Plaintiff and Respondent, (Super. Ct. No. BF136522A) v.

ZECHARIAH WILLIAM TALBURT, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Derek K. Kowata, 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, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P.J., Levy, J. and Poochigian, J.

Defendant and appellant Zechariah William Talburt contends the trial court committed misconduct in making a comment during the testimony of a witness. We conclude defendant forfeited this contention by not requesting a curative admonition during the trial. Accordingly, we affirm the judgment. FACTS AND PROCEDURAL HISTORY After an initial trial that resulted in acquittal of defendant on two counts and a mistrial on three remaining counts, defendant was retried on charges of corporal injury to a former cohabitant (count 1, Pen. Code, § 273.5, subd. (a)), battery causing serious bodily injury (count 2, id., § 243, subd. (d)), and assault by means of force likely to produce great bodily injury (count 3, id., § 245, former subd. (a)(1), now subd. (a)(4)), together with great bodily injury enhancements as to counts 1 and 3. The prosecution’s case against defendant was based primarily on the prior statements and preliminary hearing testimony of Megan Light, who married defendant a few days before the trial and is now named Megan Talburt. (To avoid confusion, we refer to the victim by her first name.) Megan testified at the preliminary hearing that in the early hours of April 19, 2011, defendant choked her and punched her in the face. Her jaw was broken in three places. The defense case was based primarily on Megan’s testimony at trial. She testified she did not know how her jaw was injured and that defendant did not strike her. There was other evidence in support of the prosecution and the defense cases, but it is not necessary to summarize that evidence for purposes of the issues raised on this appeal. One portion of that evidence is significant, however. As part of the prosecution’s case, Megan’s mother, Gina Moore, testified. She testified that during the morning of April 19, 2011, Megan told her defendant had choked her and hit her in the face. On recross-examination by defendant’s counsel, apparently in an attempt to impeach Moore, counsel first asked Moore if she approved of Megan’s relationship with defendant. Moore replied, “Of course not.” Then counsel asked, “Well, didn’t you just throw a