P. v. Cole

Filed 2/11/10 P. v. Cole 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, Desiree A. Bruce-Lyle, Judge. Affirmed.

A jury convicted Glenn Osie Cole of intimidating a witness by force (Pen. Code,^[1] 136.1, subd. (c)(1)); making a criminal threat ( 422) and battery ( 242). Cole admitted four prison priors within the meaning of section 667.5, subdivision (b), one serious felony prior conviction within the meaning of section 667, subdivision (a)(1) and two serious/violent (strike) prior felony convictions within the meaning of section 667, subdivisions (b) through (i). At sentencing the trial court struck the prison priors and the strike priors and imposed a determinate term of nine years in prison.

Cole appeals contending the trial court erred when it denied his motion for mistrial after a prosecution witness mentioned that Cole had previously been in prison. We will find no abuse of discretion and affirm the judgment.

STATEMENT OF FACTS

The offenses in this case arise from a brief, but violent confrontation between Cole and Beatrice Escobar at Escobar's apartment complex.

Cole's mother lives in an apartment complex in San Diego. Escobar is a neighbor in that complex. On June 26, 2008, Escobar saw Cole jump the fence into the apartment complex. She confronted Cole, who she recognized as someone she had seen in the complex before that date, telling Cole he should not climb the fence.

Cole responded in an angry manner, swearing at Escobar and telling her it was none of her business. She responded, "Your mama." When Escobar turned away Cole punched her in the face. When Escobar said she was going to call the police, Cole said, "Bitch, if you call the police, count yourself dead. I know you are by yourself. I will come back and get you." After the confrontation, Cole jumped over the fence and left.

Mr. Zebbie Atkinson, a neighbor in the complex, testified for the defense. Atkinson said he heard a commotion and came outside his apartment to investigate. Atkinson said he observed a confrontation between Cole and Escobar where they were cursing each other. Atkinson said the situation escalated when Escobar pushed Cole twice and said something to Cole in Spanish about his mother. Cole then hit Escobar in the mouth and left. Atkinson did not hear Cole threaten Escobar.

DISCUSSION

Early in the trial of this case the court determined that the jury should not be told Cole was on parole at the time of the offense or that he had been in prison. During the testimony of the victim, she volunteered knowledge that Cole had been in prison.

On direct examination the prosecutor asked the victim to clarify where Cole went after he threatened her. In response the witness gave the following, nonresponsive answer: "Like I said, he ran. I mean I didn't know -- I didn't know that he was my neighbor's son who came out of prison. I didn't know none of that. When I find out that he came out from prison . . . ." The answer was then interrupted by an objection by defense counsel. The trial court sustained the objection and directed the jury to "disregard this testimony."

At a later time, Cole requested the court to grant a mistrial on the grounds that the statements of the witness had caused prejudice, which could not be cured by admonition. The trial court denied the motion for mistrial, finding that the objection had been promptly sustained and that the court would give the jury an admonition and allowed defense counsel time to draft an appropriate admonition. Later the court instructed the jury as follows: "You heard testimony by Ms. Escobar referring to or making reference to [Cole] having been in prison or jail. You must disregard such references as they relate to [Cole's] true status. In other words, you may not consider or speculate as to whether Ms. Escobar has any personal knowledge of such fact or whether such statements are, in fact, true."

Cole contends on appeal that the prejudice from the witness's reference to prison was simply too great to be cured by the sustaining of the objection and/or the giving of an admonition to disregard the statements. We reject that contention and find the court acted well within its discretion to deny the motion for mistrial.

The decision of a trial court to grant or deny a motion for mistrial is reviewed under the abuse of discretion standard. (People v. McClain (1998) 46 Cal.3d 97, 113.) A defendant's motion for mistrial should only be granted based on improper evidence of prior criminal conduct when the prejudice is incurable or the chances of receiving a fair trial have been "irreparably damaged." (People v. Williams (2006) 40 Cal.4th 287, 323; People v. Bolden (2002) 29 Cal.4th 515, 555.)

Generally speaking, trial courts have considerable latitude to deal with the inadvertent admission of evidence of prior criminal conduct. The trial judge is in the best position to assess the impact of the improper evidence and to determine whether a remedy, less than granting a mistrial, will cure the harm caused by the error. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935.)

Although Cole emphasizes that the witness twice mentioned the word prison, taken in context the remarks were quite limited. Essentially the witness blurted out the comments in a very brief answer to an otherwise proper question. There was no other mention of prison in the presence of the jury. The court promptly sustained the objection and effectively struck the answer. As we have noted, the court followed up with a proper admonition to the jury to disregard the statements. It is also important to note this trial lasted only a few hours. The jury was instructed the next day and told not to consider the evidence regarding prison.

Our Supreme Court has upheld decisions by trial courts to deny motions for mistrial where the trial court has fashioned a proper remedy, short of mistrial, that effectively deals with the evidentiary error. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986; People v.Ledesma (2006) 39 Cal.4th 641, 683-684.) Jurors are presumed to follow trial court instructions. (People v. Allen, supra, 77 Cal.App.3d at p. 934.)

Our review of the record satisfies us that the trial court acted appropriately in fashioning a suitable remedy to cure any harm from the witness's brief, but improper remarks. There is nothing in this record which would support a finding that it was an abuse of the trial court's discretion to select a remedy other than mistrial. Accordingly, we find no prejudicial error.

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.