P. v. Clavel

Filed 1/21/10 P. v. Clavel CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Affirmed.

Appellants Juan Rudolfo Clavel and Ernesto Lopez were jointly charged with a series of offenses arising out of assaults on a store owner and his son. Following a jury trial, Clavel was convicted of one count of assault with a deadly weapon (Pen. Code,^[1] 245, subd. (a)(1)) and one count of battery with the infliction of serious bodily injury ( 243, subd. (d)). The jury also found that Clavel had inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Lopez was convicted of two counts of assault with a deadly weapon and two counts of battery with serious bodily injury. The jury also found that Lopez inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Each appellant was sentenced to prison for six years.

Both Clavel and Lopez^[2]appeal contending the trial court erred in denying a motion for mistrial and in its instructions to the jury regarding the rereading of witness testimony. We will reject both contentions and affirm.

STATEMENT OF FACTS

Since neither appellant challenges the admissibility or the sufficiency of the evidence to support the convictions, we will set forth only a brief summary of the facts as necessary to give context to the issues raised by this appeal.

In 2007, Clavel and Lopez were brothers. The two men and their brother Omar Mejia were customers of Leo's Market in El Cajon. The market is owned by Salem Somo. Salem's son, Ferris Somo,^[3]also worked in the market.

At about 9:00 p.m., on August 9, 2007, Salem was working in the front of the store and Ferris was working in the back of the store in the kitchen. At that time, Clavel came into the store to buy beer. Clavel got into an argument with Salem after Clavel said the store smelled of "B.O." (body odor). Salem told Clavel to leave. The argument between Salem and Clavel escalated into swearing until Clavel left the store and walked away.

Not long after Clavel left the store, he and three other men entered the store. One of the men was later identified as Omar Mejia. Further arguments followed and Salem again told Clavel and the others to leave. Mejia and Clavel then threw some of the store's packaged goods at Salem.

During the struggle that followed the arguments, Salem was stabbed several times. Ferris, who had come out from the kitchen of the store, was stabbed once on the right side of his stomach. Both Salem and Ferris were taken to the hospital for treatment. Salem identified Mejia and Clavel as persons involved in the fight, although he could not say who stabbed him. Ferris identified Lopez as the person who stabbed him.

Defense Evidence

Clavel testified and claimed he only struck Salem after Salem hit him in the chest with a stick. Lopez did not offer any defense evidence.

DISCUSSION

I

DENIAL OF THE DEFENSE REQUEST FOR A MISTRIAL

Salem Somo was a very reluctant witness at trial. He only agreed to testify after being found in contempt and briefly held in jail. During his testimony Salem referred to his fears of retaliation and for his safety. Appellants requested a mistrial on the grounds Salem had offered prejudicial remarks that would cause the jurors to believe they intimidated the witness, although Salem expressly denied any contact with either defendant. The court denied the motion for mistrial.

Appellants contend the trial court abused its discretion in denying the motion and argue they were prejudiced by the witness's remarks. We will find no abuse of discretion under the circumstances of this case.

We review the trial court's denial of the mistrial motion under the abuse of discretion standard. Under that standard we will only reverse the trial court where the record demonstrates an abuse of the trial court's discretion. Our principal concern in evaluating such decision is whether the witness's remarks created an incurable prejudice such that the defendants could not receive a fair trial. (People v. Price (1991) 1 Cal.4th 324, 428; People v. Wharton (1991) 53 Cal.3d 522, 565 (Wharton).)

After Salem had testified on redirect examination appellants made a motion for mistrial suggesting that Salem's comments indicated that the defendants were going to "knock off" the witness. They claimed they could not receive a fair trial under the circumstances.

The trial court denied the motion stating:

"I note that when he was directly asked whether either of the defendants have been back to his store or has he had any contact with them since August 9th, 2007, he said no. And he felt he was the subject of indirect threats. So far, that's the most he said about threats. There has been innuendos that his life is in danger. [] If you want to follow up on it, you are free to do so. You are free to, but so far there has not been anything tied to your clients about his fear of his life being in danger, other than his refusal to point them out. [] The motion for mistrial is denied."

After the motion was denied defense counsel further cross-examined Salem. Salem testified that he had not been threatened by either Lopez or Clavel.

Both sides cite Wharton, supra, 53 Cal.3d at page 565, as authority we should examine to determine whether the trial court abused its discretion in denying the motion. Indeed, Wharton is controlling on the facts of this case.

In Wharton, supra, 53 Cal.3d 522, a prosecution witness testified about being beaten in the jail because he was a "snitch." Although the witness made clear that Wharton had not assaulted him, the witness volunteered that Wharton had "put out the word," which caused him to be assaulted. The trial court denied the motion for mistrial and the Supreme Court found no abuse of discretion. The court said:

"[W]e conclude defendant's claim of incurable prejudice lacks merit. First, Perez's testimony did not directly implicate defendant in the beating; he merely said defendant 'got the word out,' thereby requiring the jury to draw the further inference that 'the word' led to the injuries. Second, the trial court gave a direct and pointed admonition regarding the volunteered testimony. Although defendant argues the admonishment was disregarded by the jury because the inadvertent statement was made on a Thursday and the admonition did not come until the following Monday, this is mere speculation. Finally, and most importantly, Perez's own later testimony on cross-examination dispelled any lingering doubt about defendant's alleged participation in the beating by placing the blame squarely on his neighbor, for reasons wholly unrelated to Perez's prior testimony. We conclude the court properly denied defendant's motion for a mistrial." (Wharton, supra, 53 Cal.3d at p. 566, fn. omitted.)

The present case presents even less risk of an unfair trial than did the circumstances in Wharton, supra, 53 Cal.3d 522. Here the witness was unusually reluctant and evasive. The prosecution was entitled to have the jury understand the circumstances of Salem's testimony in order to assess his credibility. That he felt threatened by persons other than the appellants was relevant to the credibility question. What was made very clear, however, is that there had been no contact between Salem and the defendants, and that they had not made any threats. On this record the trial court could reasonably determine that no incurable prejudice had been caused to the defendants' case and that the witness's statements did not implicate the defendants in any fashion. Accordingly, the trial court did not abuse its discretion in denying the motion for mistrial.

II

THE COURT'S INSTRUCTIONS DID NOT VIOLATE SECTION 1138

When the court instructed the jury about obtaining a reading of testimony during deliberations, it utilized CALCRIM No. 202 which stated:

"You have been given notebooks and may have taken notes during the trial. Please do not remove your notes from the jury room. You may use your notes during deliberations only to remind yourself of what happened during the trial. But remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes." (CALCRIM No. 202 (Jan. 2006).)

In addition to the statements in the pattern instruction the court told the jury, without objection:

"Now, I have one ground rule regarding the readback of testimony, and that is, if there is a request for a readback of any witness's testimony, I will require that all deliberating jurors, all 12 deliberating jurors, listen to all of that witness's testimony from the beginning to the end, and not just bits or pieces of it, and not just one paragraph taken out of context. That may take longer than you want it to, but that's going to be the rule. [] I don't think it's fair to take one thing out of context. It's difficult for the court reporter to try to find what you may be looking for. [] Her instructions will be to go into the jury room, if there is a request for a readback, and to read a particular witness's testimony from beginning to end, including direct and cross-examination, all of the back and forth, until that witness is completed. [] As you know, some witnesses were on the stand for five or ten minutes, others were on the stand for a couple of hours. Before you do request a readback, you may find it helpful to really talk with one another about what other discrepancies or things you may have a disagreement on, and try to air them out. If you can resolve them, great. If not, we are happy to provide readback, as I said, under the ground rules that I have indicated."

Appellants contend they were prejudiced by the court's additional comments since the comments could have discouraged jurors from asking to have testimony read during deliberation. They contend the additional comments violate section 1138.^[4]

Although there was no objection to the trial court's comments, the parties agree that the issue is properly before us on appeal. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) The jury did not make any request for reading of testimony, nor is there anything in the record to indicate jurors were discouraged from making requests. Certainly no request was denied by the court. Thus, the argument presented is somewhat abstract, that is, that a juror might have been discouraged and thus the appellants might have been deprived of the benefit of the juror's informed deliberation.

Speculation aside, there is nothing in the trial judge's remarks that informed jurors that their requests might be denied. Indeed, like the comments in People v. Hillhouse, supra, 27 Cal.4th 469, the trial court made it clear that if the jurors requested to have testimony read back, such request would be granted. The last sentence of the judge's comments informed the jurors that after they had decided they needed to hear the testimony again the court would be "happy to provide read back."

Trial courts are not prohibited from providing juries with accurate information about the process that has to be followed in having testimony read back. (People v. Robinson (2005) 37 Cal.4th 592, 635.) The key to the analysis of remarks of this type is to discern if the jury would be intimidated to the point they would not avail themselves of their statutory right to assistance. That certainly did not happen here.

Taken in context the trial court's comments only informed the jury they would not be able to have portions of testimony read out of context, as that would not be fair. They were encouraged to discuss the issues, use their recollection to determine if they really needed to have testimony read back. There is nothing sinister or intimidating to accurately inform jurors of the process that should be followed and to ask them to make sure they feel that they need the additional information. But, if they do need such help, it will be "happily" provided.

There was no error in the court's instructions. Even if we could conjure up a possible error, there is no basis in this record for a finding of prejudice as to either appellant. (People v. Jenkins (2000) 22 Cal.4th 900, 1027.)

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Lopez initially filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738. After this court reviewed the briefs filed by Clavel, we directed Lopez to brief the same issues as briefed by Clavel. Lopez now joins in the issues raised by Clavel.

^[3] Since both victims have the same surname, we will refer to them by their first names for ease of reference. No disrespect is intended.

^[4] Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."