P. v. Talburt CA5

Filed 6/19/13 P. v. Talburt CA5
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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
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wedding for your daughter” and defendant? She answered, “I did.” Counsel asked,
“What did that consist of?” Moore answered: “The wedding was actually -- she was
going to get married. She told me she had permission from the judge to get married even
though there was a restraining order[.]” At that point, the trial court interjected, “Not this
judge.” Moore continued: “Okay. [¶] She told me she had permission and that they
were going to go and get married on Sunday, and I said I don’t want my daughter getting
married without me being there ….” Accordingly, the wedding was held at Megan’s
grandmother’s house. Counsel continued to cross-examine Moore for a few additional
minutes and then she was excused as a witness. The court then took the afternoon break,
after which two police officers testified as part of the prosecution case.
The next morning, after other preliminary matters, defense counsel moved for a
mistrial “[o]n the basis that your Honor made comments yesterday regarding the marriage
of the victim to the defendant that caused an obvious reaction with the jury and I just
think it was inappropriate.” Counsel explained that the comment was prejudicial because
“[i]f the Court doesn’t approve of the marriage or if the Court said it didn’t approve of
the marriage, then maybe the Court believes that this individual, you … shouldn’t be
around her because of what he did.” Counsel continued: “The Court could have in some
way fashioned an instruction or a stipulation from counsel that would have eased the
impact of that tremendously. We could have had a stipulation that said although the
defendant had married the victim, it was done without -- I mean, I don’t even know that
there was ever any judge that gave them permission, per se. There’s still the restraining
order in effect.” The court explained that it did not want the jury to think it had
countermanded a restraining order imposed by another judge. In addition, the court noted
that it already had instructed the jury with CALCRIM No. 101 which, in part, tells the
jury, in the court’s words, “do not … take anything I say or do during the trial as an
indication of what I think about the facts, the witnesses, or what your verdict should be.”
The court indicated that it would give a similar instruction as part of pre-deliberation
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instructions, CALCRIM No. 3530. The court added: “Now, if you feel that a limiting
instruction should be rendered regarding that remark, I certainly would entertain it. I
don’t think I need to give one, but if you have one in mind, I’ll consider it and probably,
most likely, give it. So feel free to fashion any type of admonition you feel is appropriate
and submit it.” Counsel reiterated that the motion for mistrial should be granted. At no
time did counsel request that the jury be admonished to disregard the court’s comment
nor did counsel propose an instruction explaining the court’s comment.
The jury found defendant guilty on all three counts and found true the
enhancement allegations. At a subsequent hearing, the court sentenced defendant to an
operative prison sentence of five years. The court awarded 177 days of presentence
custody credit and 26 days of presentence conduct credit. The abstract of judgment
incorrectly states the court awarded 23 days of conduct credit, although it correctly states
defendant is to receive a total of 203 days of presentence credit.
DISCUSSION
Almost 100 years ago, the California Supreme Court stated that “it has long been
the rule in this court that a claim of misconduct on the part of the district attorney or the
trial judge will not ordinarily be considered on appeal, unless the complaining party has
promptly called the attention of the court to the alleged impropriety …. The reason for
this rule is that the court should be given the opportunity to correct the irregularity or to
prevent any prejudicial effect, if that be possible.” (People v. MacDonald (1914) 167
Cal. 545, 551.) This longstanding rule has been frequently and regularly applied by the
Supreme Court to find forfeiture of the issue on appeal. (See, e.g., People v. Houston
(2012) 54 Cal.4th 1186, 1220; People v. Blacksher (2011) 52 Cal.4th 769, 825.) In its
modern incarnation—and consistent with the original purpose of permitting the court to
“correct the irregularity”—the rule requires both an objection and a request that the jury
be admonished. (See People v. McWhorter (2009) 47 Cal.4th 318, 373.) In this case, it
is far from clear that the court’s comment carried any inference that was negative to
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defendant. But assuming the ambiguity of the statement was resolved in favor of
defendant’s interpretation, as in People v. Terry (1970) 2 Cal.3d 362, 398, an
“admonition, had one been requested, would obviously have clarified the ambiguity.”
Accordingly, we conclude this issue was forfeited by defendant’s failure to request an
admonition to the jury.
The parties agree the abstract of judgment does not accurately reflect the conduct
credits awarded by the court at the time of sentencing and the abstract of judgment must
be modified.
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court, which shall
cause preparation and distribution of an amended abstract of judgment reflecting an
award of 26 days of conduct credit.
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