Hernandez

While I concur with several points made by the majority, I respectfully disagree with its ultimate holding, because I believe that holding ignores the legal significance — or rather the lack thereof — of the criticisms the majority makes of the trial court's rulings regarding the presence of a uniformed and armed bailiff near appellant in the course of the trial. First of all, I agree with the majority's criticism of the trial court's refusal to admonish the jury that they should not draw any adverse inferences from stationing of the bailiff near defendant when he was sitting at the defense table and when he was on the witness stand. (See maj. opn., ante , at pp. 963-965.) Such an instruction was provided, and quite properly I think, in a case the majority cites, People v. Marks (2003) 31 Cal.4th 197 , 223 [ 2 Cal.Rptr.3d 252 , 72 P.3d 1222 ] ( Marks ). But nowhere in that opinion did our Supreme Court state — or even hint for that matter — that such an instruction is required under those or similar circumstances. And the majority cites no authority holding that such an instruction is required under those circumstances. Secondly, I agree with the majority's criticism 1 of the…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 942 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 943 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 944 OPINION 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 court's 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 bailiff's placement. He further contends the 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 counsel's failure to request the court to strike the enhancement denied…

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 court's 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 bailiff's placement. He further contends the 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 counsel's 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 attorney's failure to object to the bailiff's placement until after the first portion of appellant's testimony and failure to request that the court exercise its discretion to strike the great bodily injury enhancement.

We conclude appellant's conviction must…