In what circumstances will a jury accept the recantation of a witness?

Thus, even if the court had not questioned V. at all, it is unlikely that the jurors would have believed her recantation. In any event, any prejudice was dispelled by the court's instructions. In final instructions, among other standard instructions regarding the evaluation of testimony, the court instructed the jury: "You alone must judge the credibility or believability of the witnesses"; and, "Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses or what your verdict should be." We presume that the jurors understood the instructions and followed them. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Defendant contends that the trial court abused its discretion in denying the defense motions for mistrial and to disqualify the judge, based on the alleged judicial misconduct discussed above. Defendant did not state the authority for his recusal motion in the trial court. Here, for the first time on appeal, defendant invokes his federal constitutional right to due process as a ground for disqualification. As respondent notes, the denial of a statutory motion for disqualification is not subject to appeal, but must be reviewed by way of petition for writ of mandate. (See Code Civ. Proc., 170.3, subd. (d).) In addition, as the motion was not made on constitutional grounds in the trial court, defendant has not preserved the issue for review as a nonstatuory motion. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49-50.)

Defendant contends that the motion for mistrial should have been granted due to the actual or apparent judicial bias caused by the judge's alleged misconduct. A trial court is vested with considerable discretion in ruling on a motion for mistrial, which should be granted only if the trial court finds that the defendant's chances of receiving a fair trial have been irreparably damaged. (People v. Dement (2011) 53 Cal.4th 1, 39.) As we have already rejected defendant's claim of judicial misconduct and have found no prejudice, we also find no abuse of discretion.

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The judgment is affirmed.

/s/_________, J.
CHAVEZ

We concur:

/s/_________, P. J.
BOREN

/s/_________, J.
HOFFSTADT

Footnotes:

^1. All further statutory references are to the Penal Code unless otherwise indicated.

^2. See Miranda v. Arizona (1966) 384 U.S. 436, 444-445.