P. v. Hernandez 7/10/09 CA1/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A119501

Case Date: 09/10/2009

Preview:Filed 7/10/09

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ARTURO JESUS HERNANDEZ, Defendant and Appellant. In re ARTURO JESUS HERNANDEZ, on Habeas Corpus. Arturo Jesus Hernandez appeals from a conviction of assault with a deadly weapon and by force likely to produce great bodily injury. He contends the judgment must be reversed due to the trial courts placement of a uniformed and armed bailiff behind him while he testified and refusal of a defense request for an instruction directing the jury to disregard the bailiffs placement. He further contends a great bodily injury enhancement must be reversed because the trial court failed to instruct the jury that the enhancement allegation had to be proven beyond a reasonable doubt, the trial court failed to recognize and exercise its discretion to strike the enhancement, and defense counsels failure to request the court to strike the enhancement denied appellant effective assistance of counsel. In a petition for writ of habeas corpus, appellant contends he was denied effective assistance of counsel by his trial attorneys failure to object to the bailiffs placement until after the first portion of appellants testimony and failure to request that the court exercise its discretion to strike the great bodily injury enhancement. (Contra Costa County Super. Ct. No. 050707604) A119501

A124474

1

We conclude appellants conviction must be reversed and find it unnecessary to address the habeas petition. STATEMENT OF THE CASE Appellant was charged by information filed on May 18, 2007, with one count of assault by a deadly weapon and by force likely to produce great bodily injury. (Pen. Code,

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