“Mr. Maple: That is right. Because nobody can test that, your Honor. He [Schliebe] threw it away.”
“Mr. Holliman: I’ll object to counsel editorializing.
“The Court: Disregard the statement of the attorney. Counsel, I cautioned you. Let’s not have any of this. All I’m trying to do is to speed up the process because we have an expert here that can give us his opinion, and the standard way of doing it is to qualify the expert; ask him what his opinion is as to the—whatever he’s going to compare. Then he’ll give his opinion and then simply ask him what the basis of his opinion is, at which time he may then bring in focus all of his qualifications for all of us. But you’re shot gunning, counsel. That—
“Mr. Maple: Well, your Honor and I differ, and I apologize to the court for the difference.
“The Court: Counsel, I told you how much this court costs to operate.”
Counsel then elicited Kar’s opinion (that the paints differed) without further difficulty.
While some of the court’s comments during the examination of Kar “would have been better left unsaid” (United States v. Pisani, supra, 773 F.2d at p. 402), we do not believe the court’s behavior “was so prejudicial that it denied [defendant] a fair, as opposed to a perfect, trial.” (Ibid.) That the court became impatient with counsel’s examination of the expert was perhaps understandable, but its instructions on how to question the witness should have been given outside the jury’s hearing. Nonetheless, we believe the effect of the court’s remarks was not to “discredit the defense or create the impression it is allying itself with the prosecution.” (People v. Carpenter, supra, 15 Cal.4th at p. 353.) The jury may well have received the impression that the court disliked counsel’s methods of examination, but not that the court disparaged or discredited Kar’s favorable evidence itself.