P. v. Davis

Filed 6/30/08 P. v. Davis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary S. Austin, Judge.

Imhoff & Associates and Shannon M. Dorvall for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys, for Plaintiff and Respondent.

-ooOoo-

Defendant Daniel Andrew Davis was convicted, following a jury trial, of assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1); count 1),^[1]and misdemeanor false imprisonment, the lesser included offense of the charged offense of false imprisonment by violence ( 236; count 2). The jury also found true the allegation that defendant personally inflicted great bodily injury in the commission of count 1 ( 12022.7, subd. (a)). Defendant was acquitted of assault with intent to commit rape ( 220; count 3). In a separate trial, the trial court found true allegations that defendant suffered two prior serious convictions, which also qualified as strikes, and four prison priors ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b)). The court sentenced defendant to a total indeterminate term of 25 years to life, and a total determinate term of 15 years. On appeal, defendant contends that (1) he was put on trial while mentally incompetent in violation of his constitutional rights, (2) the trial court erred in failing to grant his motion for a mistrial after Detective Shoemaker improperly referred to defendants prior rape convictions, and (3) the trial court, after it received a partial verdict and made a juror substitution, erred by not ordering a mistrial when it became evident the reconstituted jury disregarded the courts instructions to begin deliberations anew. We will affirm the judgment.

FACTS

In December 2004, the victim, Rebecca S., worked as an exotic dancer to supplement her familys income. Rebecca testified that her husband, Anthony S., encouraged her to become a dancer when they were having financial troubles. She also worked full time as a home-based educator and mother of three children, and was working on her masters degree in cross-cultural education. At the time of defendants trial in May 2006, Rebecca and Anthony were involved in an acrimonious divorce. Rebecca described Anthony as causing a lot of trouble and the divorce as getting worse by the day. Rebecca testified she and Anthony stopped living together on February 6, 2006, after she obtained a restraining order against him following an incident during which he threatened her, called her names, and pulled a bedpost off their bed and swung it at her.

On December 3, 2004, around 4:45 p.m., Rebecca went to a Holiday Inn in Selma to perform a private show. She went to a room on the third floor, where she met defendant. She explained to defendant her rules (no kissing, licking or biting and no insertion of anything, including any foreign objects in [her] body), and defendant indicated he understood. He then paid her $200 in cash.

Rebecca went into the bathroom for a few minutes, and then came out and put on some music. Defendant was sitting on the bed. Rebecca testified that her show, which lasted about an hour, consisted of dancing and lap dances. She would start out fully clothed and, throughout the show, take off her clothing down to her bra and panties.

Rebecca was dancing next to the bed and had removed her pants, when defendant started to make statements which made her feel uncomfortable. She testified: [H]e said that he loved me. He said that he wanted to fuck me. Rebecca became nervous and frightened. When she turned around for a split second, defendant grabbed her by the shoulders and pulled her down on the bed. He then straddled her hips with his legs, pushed his elbows down against her shoulders, and started choking her.

Rebecca passed out. When she regained consciousness, she was naked and disoriented. Defendant, who was naked, was sitting at the foot of the bed. Rebecca stood up and told defendant she needed to leave. Defendant became angry and blocked her path. He said she could not leave because she was going to tell somebody. Rebecca started crying and told defendant she had a family she needed to go home to. Defendant grabbed her arm and said she needed to stay longer. Defendant sat Rebecca on the bed next to him and held onto her arm. She continued to ask him to let her leave, but he refused.

Defendant told Rebecca that she needed to lie down. Afraid she would not have the energy to fight him off, she suggested: You lay down and Ill get on top of you. Defendant had Rebecca sit on top of him. He had her by the wrist. While he was attempting to pull her up towards his penis, she was pulling back.

At this point, Rebecca started to pretend she was going to throw up. She made gagging noises and asked defendant to bring her some water. At first defendant accused her of faking, but when she continued to gag, he went to the bathroom to get her a glass of water. Still naked, Rebecca ran out of the hotel room to the elevator and started pressing buttons. While she was waiting for the elevator, she heard a door open. Frightened, she ran down the stairs to the lobby. When she came out of the stairs, she opened the door directly opposite and ran into the laundry room.

Holiday Inn employee, Salvador Garcia, was in the laundry room folding sheets when he heard a noise. When he turned around, he saw Rebecca and covered her with the sheet he was folding. Garcia testified that Rebecca was crying and yelling that someone was coming. Her face was red and she had marks on her neck.

Garcia took Rebecca to the office and left her with the front desk receptionist, Valerie Rivera. Rivera testified that Rebecca had abrasion marks on the side of her neck. Rivera went and got a robe for Rebecca to wear. Rebecca told Rivera she had been dancing for a man and that he threw her on the bed and started strangling her. While describing the attack, Rebecca seemed nervous and scared.

Selma Police Officer Timothy Cannon responded to the Holiday Inn around 5:35 p.m. Rebecca was crying and very emotional. She told Officer Cannon that when defendant offered to pay her money for sex, she turned to walk away. Defendant grabbed her by the neck and choked her until she passed out. After she regained consciousness, she tried to leave the room, but defendant grabbed her and would not let her leave.

Rebecca was taken to University Medical Center in Fresno, where she underwent a sexual assault examination conducted by trauma nurse Margie Jessen. Jessen testified that Rebecca had a green ligature mark on her forearm, indicating something had been tightly put around it. In addition, Rebecca had abrasions and scratches on her face and upper shoulders near her neck. She also had an abrasion on the backside of her left ear and redness on her neck. Jessen testified Rebeccas injuries were consistent with her description of being choked.

Rebecca testified that she could not say whether or not she was actually raped by defendant on December 3, 2004. She believed she might have been sexually assaulted because when defendant was attacking her, she felt his hips thrusting against her. But from the time she started her dance until defendant pulled her onto the bed and started to choke her, she had no physical contact with him.

Rebecca believed that defendant might have been under the influence of alcohol during the incident. When she started her show and was in closer proximity to him, she could smell alcohol and he was slurring his words. When he told her he loved her and words to the effect he wanted to have sex with her, defendant said he had a lot of money and would pay her. Rebecca testified that she never touched or took defendants wallet or any money other than the $200 he paid her.

The defense

Rebeccas husband, Anthony, disputed her testimony that he had encouraged her to become an exotic dancer to earn more money. According to Anthonys testimony, he suspected Rebecca was working as an exotic dancer for about six months before she finally admitted it to him. Concerned for her safety, he began to drive her to her shows until he once saw her having sex with one of her clients. Anthony explained he looked through the window of a mobile home where she was performing and saw her sitting on top of one of her clients having sexual intercourse with him. After that, he never accompanied her again. When he confronted her, Rebecca denied she had sex with the client. Anthony testified that eventually she stopped denying it, and in a real cold-blooded tone she said, You probably liked watching, didnt you?

Anthony disputed Rebeccas claim that he swung a bedpost at her. He claimed she called the police after he called her a whore during an argument, which was something he knew would make her angry. On cross-examination, Anthony denied making statements, reflected in the police report of the incident, in which he admitted grabbing a bedpost from the bed.

When asked about her character for telling the truth, Anthony testified that Rebecca was incredibly good at lying. She had also made statements that made him suspect she was not telling the truth regarding defendants alleged attack. Anthony explained that he was a social worker and had encountered numerous victims of violent crimes such as rape, and that Rebecca was not behaving in a way he had become accustomed to seeing. When he met Rebecca at the clinic where she had a sexual assault examination, she told him she had been raped, but later, when she went to the substation to give a police statement, she began denying that she could remember anything that happened. Anthony stated that it seemed really odd to me that she couldnt what she told me was she had been raped and now she was not sure to the police .

Selma Police Detective Brandon Shoemaker interviewed defendant. Defendant told the detective he grabbed Rebeccas neck because she was taking his wallet.

Defendant testified that he was from Los Angeles and had come to Selma to participate in a motorcycle race. Defendant did not dispute that he hired Rebecca to dance for him. According to defendants version of events, when Rebecca danced for him, she completely disrobed and told him several times she would do anything he wanted but that it would cost more money. Defendant was pretty drunk. He mainly wanted a massage because his body was torn up from the motorcycle racing.

At one point, Rebecca crawled on top of him, slid back and forth, and rubbed her breasts in his face. Defendant was not in a physical condition to have sex and passed out when Rebecca was on top of him. When he came to, she was smiling and rubbing back and forth on him. She said for the right amount of money she would take care of him and whatever he needed. Defendant then passed out again.

When he came to a second time, defendant saw that Rebecca had his wallet in one hand and cash in the other, and she appeared to be about to leave. Defendant went to grab her by her hair because that was all the money he had and he needed to buy gas to get home. Defendant pulled Rebecca towards him, grabbed her by the throat, and shook her. He did not grab her with the intention to have sex with her, and he never told her she could not leave the room.

Defendant admitted that in 1998 he pled guilty to rape. Defendant testified that his accuser had been a friend of his and it was rough sex to be honest. He pled guilty to the offense because a detective threatened him with a life sentence and said he would get six years if he entered the plea.

DISCUSSION

I. Defendant has not shown the court erred in determining he was competent to stand trial or in failing to hold a new competency hearing.

A. Background

On December 8, 2004, a felony complaint was filed charging defendant in the instant case. On December 29, 2004, at the defenses request, the trial court suspended the criminal proceedings under section 1368, and appointed Dr. Norman Hendricksen and Dr. Lara Geiger to examine defendant. Based on their evaluations, the court found defendant incompetent to stand trial. On March 10, 2005, the court ordered defendant committed to Atascadero State Hospital for restoration of competency (Penal Code section 1370).

On June 10, 2005, Atascaderos medical director filed a certificate of competency, certifying that defendant was competent to stand trial ( 1372). The accompanying reports reflects that, based on extensive psychological testing and observation of defendant, Atascadero officials reached the consensus that defendant was malingering and feigning symptoms of severe mental illness in an attempt to avoid criminal prosecution.^[2] Although defendant had engaged in an apparent suicide attempt by swallowing three razor blades in February 2005, and was being treated for depression with medication, none of his diagnoses include[d] any type of impairment from either having a problem with distinguishing fantasy from reality, having any type of psychosis, or cognitive impairment.

After receiving the certificate of mental competency, the trial court asked counsel during competency proceedings on June 21, 2005, whether the issue of restoration of competency [was] submitted on these reports? The prosecutor and defense counsel both answered in the affirmative. The court stated: Then pursuant to the reports I have received and reviewed from Atascadero State Hospital, I am going to follow the recommendation and find that in correspondence to Section 1372 of the Penal Code, that [defendant] is now to be found competent to stand trial.

The question of defendants competency did not come up again until towards the end of his jury trial which lasted about a week. Defendant testified on May 17, 2006. The same day, both sides rested, the court gave jury instructions, and the prosecutor made her closing argument. At the beginning of the morning session on May 18, 2006, defense counsel stated there was an issue concerning defendant he needed to bring up. This discussion followed:

[DEFENSE COUNSEL]: Mr. Davis when I came in today, I noticed he looked particularly tired and sort of haggard which he has for a couple days. I asked him if he was doing all right. He advised me hes not been able to sleep because apparently some medication hes been taking for the last 15 years or so Neurontin and Wellbutrin, they stopped being delivered to him earlier this week. I think his last dose he had was like Sunday or Monday.

Its caused him some significant difficulties in terms of his emotional state and his being able to concentrate and stay alert and that is impacting him currently. I think it has impacted him somewhat yesterday, although I didnt realize why, and I just need to make that record.

THE COURT: So noted. What I will do I dont want to interrupt argument. Ill call the jail or ask my bailiff to contact the jail to find out if we can get some type of hearing, because we should determine what has or has not been given and provided to Mr. Davis.

I will just tell you from my own observations, hes looked the same throughout the trial. He looks the same as hes looked throughout the trial. My own observations dont comport with those youve just placed on the record, but, in any event, lets get to the bottom of this and Ill see if I can get a member of the jail medical staff here to give us more of an appraisal of what is going on.

During the afternoon session on May 18, 2006, after the jury retired to deliberate, the court held a hearing into the discontinuation of defendants medications. Two witnesses testified under oath. First, Dr. Lena Wuang confirmed that she discontinued defendants Wellbutrin and Neurontin on May 15, 2006.

Dr. Wuang explained she discontinued defendants medications based on several memos written by different med nurses documenting that defendant had been misusing his medications. It was reported that defendant was cheeking or pocketing his medications, indicating he was selling his meds or trading them with somebody else. Dr. Wuang confirmed that her notes and charts revealed no deterioration in defendants mental state after she discontinued his medications. Dr. Wuang testified she did not perceive any risk to defendants mental status or to his risk of self-infliction of injury as a result of taking him off the medications. She explained:

[DR. WUANG]: The meds that we have tried with him like Depakote for supposedly bipolar disorder, he was not compliant with refused and did not cooperate with the blood work, so that he had to be stopped by Dr. Rowell. These meds he wants to be on are highly sought and abused and traded and sold between inmates. Thats why its a strict policy when a patient is not compliant with meds, that I automatically stop.

If depends on the situation. If I believe they are truly depressed and non-compliant, I usually will leave them on the meds until I see them, see what is going on, why they are non-compliant and address that issue. I dont blindly stop meds just because they miss one or two doses.

When a person has a pattern of not taking the meds, pocketing them for sale between prisoners, thats it has been documented by several nurses and the Cos, I will stop the meds because obviously they are not taking it any way.

[THE COURT]: Do you find that to be the record of [defendants] case?

[DR. WUANG]: Yes thats why I believe thats why I stopped [in] the midst.

Jonathan Holguin, the courts bailiff, testified he had observed defendant since the beginning of trial, and had not observed any changes in defendant. In their communications, defendants responses were appropriate. Defendant was compliant with Holguins directions, and never appeared unable to understand him.

On May 22, 2006, the jury returned its verdict. On June 27, 2006, defense counsel filed a motion for a new competency hearing ( 1368). In support of the motion, the defense relied on the psychologists evaluations which resulted in defendants initial commitment to Atascadero State Hospital in March 2005, and defense counsels own observations of defendants mental state. In the moving points and authorities, defense counsel was critical of the conclusion reached by Atascadero officials in support of the certificate of competency filed on June 10, 2005. Thus, he asserted: [I]n counsels experience, he has found that oftentimes, for inexplicable reasons, the staff at Atascadero State Hospital shall find it fashionable, so to speak, to render such an opinion. Frankly, their suggestion that there is a 100%likelihood that Mr. Davis is malingering seems professionally arrogant, in and of itself. In the supporting declaration, defense counsel stated:

During the trial in the instant matter, I noted that at times, particularly stressful times, Daniel Davis presented as being out of touch, so to speak, with reality; [] Since the verdict in this matter, I have met with Mr. Davis respecting matters attendant to his well being generally, the matter of the prospect of a motion for new trial, sentencing matters, and post-trial motions. At these various times, I have continued to notice indications of severe depression, lack of touch with reality, and essential mental disorder in the context of delusional thinking.

On July 21, 2006, the court trial denied the defense motion for a new competency hearing. In explaining its ruling, the court discussed what it considered to be pertinent case law and found, essentially, there was no substantial evidence of incompetence entitling defendant to a section 1368 hearing.

B. Applicable legal principles

A person cannot be tried or adjudged to punishment while mentally incompetent. ( 1367, subd. (a).) A defendants trial while incompetent violates state law and federal due process guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Pennington (1967) 66 Cal.2d 508, 516-517.) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pennington, supra, at pp. 516-517; People v. Marks (2003) 31 Cal.4th 197, 215.) A defendant must have sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against him or her. The focus of the inquiry is the defendants mental capacity to understand the nature and purpose of the proceedings. (People v. Blair (2005) 36 Cal.4th 686, 711.)

As a matter of due process, the trial court must conduct a section 1368 hearing to determine a defendants competency whenever substantial evidence of incompetence has been introduced. (People v. Frye (1998) 18 Cal.4th 894, 951-952.) Substantial evidence means evidence that raises a reasonable doubt about the defendants competence to stand trial. The competence issue may arise at any point in the proceedings. (People v. Ramos (2004) 34 Cal.4th 494, 507.) All proceedings are suspended until competency is determined. ( 1368, subd. (c).)

In deciding whether there is substantial evidence of incompetence, a court must consider all of the relevant circumstances, including counsels opinion. Determining whether a defendant is incompetent or malingering may complicate the inquiry. Mere bizarre statements or actions are generally insufficient to constitute substantial evidence raising a doubt as to the defendants competency. [M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense [citation]. [Citation.] (People v. Welch (1999) 20 Cal.4th 701, 742.)

After a criminal prosecution has been suspended due to a finding that the defendant is mentally incompetent to stand trial, a specified mental health official makes periodic written reports to the court concerning the defendants progress toward recovery of mental competence. ( 1370, subd. (b)(1).) In the event that the specified mental health official determines that the defendant has regained mental competence, the official shall [file] a certificate of restoration to competence. ( 1372, subd. (a)(1).) The defendant then must be returned to court for further proceedings. (Id., subd. (a)(3)(A).)

At this juncture, there is a presumption that the defendant is mentally competent unless a preponderance of the evidence proves the opposite. (People v. Rells (2000) 22 Cal.4th 860, 867-868.) The parties may submit the question of recovery to mental competence on the certificate of restoration, thereby eschewing a formal trial of the issue. (Id. at p. 871, cf. People v. Weaver (2001) 26 Cal.4th 876, 903-905.)

When a defendant has been found competent to stand trial, a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that earlier finding. (People v. Jones (1997) 15 Cal.4th 119, 150, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Jones (1991) 53 Cal.3d 1115, 1153.)  The trial court may appropriately take its personal observations into account in determining whether there has been a significant change in the defendants mental state. (People v. Jones, supra, 53 Cal.3d at p. 1153; People v. Jones, supra, 15 Cal.4th at pp. 149-150; People v. Lawley (2002) 27 Cal.4th 102, 136.) In such circumstances, the courts decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. (People v. Ramos, supra, 34 Cal.4th at p. 507.) Reviewing courts give great deference to a trial courts decision whether to hold a competency hearing. (People v. Marks, supra, 31 Cal.4th at p. 220.) But while great deference is given to the trial courts decision, the trial court must not weigh the evidence to determine if a secondary hearing is required. The court should only look to whether substantial evidence exists in the record showing a change of circumstances supporting another competency hearing, regardless of whether contrary evidence also exists in the record. (People v. Kaplan (2007) 149 Cal.App.4th 372, 384.)

C. Analysis

On appeal, defendant claims he was put on trial while mentally incompetent in violation of his constitutional rights. However, he has failed to demonstrate any error in regard to the trial courts handling of the competency issue during the proceedings below. Defendants challenge essentially goes to two different rulings by the trial court: (1) the trial courts determination in June 2005, that defendant was competent to stand trial after he was certified as such by the medical director of Atascadero State Hospital, and (2) the trial courts denial of defendants motion for a new competency hearing based on the discontinuation of his medications during his trial in May 2006.

1. The court properly determined defendant was competent to stand trial after the parties submitted the issue on the certificate of competency.

As noted above, after the complaint was filed in this case, the trial court suspended criminal proceedings and appointed two psychologists to examine defendant. Based on their reports, the court found defendant incompetent to stand trial and ordered him committed to Atascadero State Hospital for restoration of competency. Three months later, the Atascadero medical director certified that defendant was competent to stand trial. During the competency proceedings that followed, defendant did not challenge the conclusion of the certification of competency, and the parties submitted the matter on the certification and accompanying reports. In such a situation, the trial court has authority to summarily approve the certification. (People v. Mixon (1990) 225 Cal.App.3d 1471, 1480; see also People v. Rells, supra, 22 Cal.4th at p. 867 [defendant has the burden of disproving the certification by a preponderance of the evidence].) This is precisely what the court did here.

Under the circumstances, it would have been improper for the trial court to reject the certificate of competency and find defendant incompetent based on the evaluations of the two psychologists who examined defendant prior to his commitment, as defendant suggests the court ought to have done. As the Supreme Court stated in Rells, the filing of the certificate has legal force and effect in and of itself. It causes the defendant to be returned to court for further proceedings. It does so separately and independently of any role that either official or certificate may subsequently play in a challenge to a finding of restored competence. (People v. Rells, supra, 22 Cal.4th at p. 868.) The filing of a certificate of restoration of competence reestablishes the presumption of mental competence and places the burden of proving otherwise upon any part asserting incompetence. (Ibid.) Here, defendant did not offer any evidence to overcome the presumption.

We also agree with the People that the memorandum defendant has attached to his opening brief, which reflects negative findings reached as a result of a federal investigation of Atascadero State Hospital, and which is not part of the record of appeal, cannot properly be considered by this court. However, the memorandum is not relevant to the issue before us in any event. Not only does it not specifically address defendants case, if defendant believed the conclusions reached by Atascadero officials in his case were flawed, it was incumbent on him to challenge those conclusions at the time of the competency proceedings on June 21, 2005. Defendant failed to do so. Accordingly, defendant has not demonstrated any error in connection with the trial courts determination that he was competent to stand trial.

2.The defense presented no substantial evidence of a change in circumstances or new evidence demonstrating he was entitled to a new competency hearing.

Similarly, defendant has shown no error in regard to the trial courts ruling denying his request to renew competency proceedings based on the discontinuation of his medications during trial. He asserts that assuming he was competent to stand trial, that competency was removed once his medications were summarily stopped. However, the record contains no evidence to support either this assertion or his assertion that he was only functioning because of his medication.

The undisputed evidence was that prior to Dr. Wuangs discontinuation of his medication, several nurses assigned to administer defendant his medications had written defendant up on different occasions for not taking his medications but pocketing them to sell to or trade with other inmates. Thus, Dr. Wuang did not summarily stop defendants medication but made a reasoned decision based on a documented pattern of noncompliance and her standing policy for handing such noncompliance. Moreover, defendant presented no evidence that the discontinuation of his medication resulted in any changes to his mental status. His counsels declaration noted that he observed certain symptoms in defendant during and after the trial but did not specifically tie any to the discontinuation of defendants medications. In addition, the trial court could properly take into account its own observations that defendant looked the same throughout the trial. In short, defendant did not present a substantial change of circumstances or new evidence casting doubt as to the prior finding that defendant was competent to stand trial. Thus, we find no abuse of discretion in the trial courts conclusion that defendant failed to present substantial evidence to require a full competency hearing.

II. The trial court did not commit reversible error in denying defendants motion for a mistrial after Detective Shoemaker referred to defendants prior rape convictions.

A. Background

Pursuant to Evidence Code section 1108, the trial court permitted the prosecution to admit evidence relating to a single conviction of rape sustained by defendant in 1998. While testifying for the defense, Brandon Shoemaker, the lead detective in the current case, referred to defendants criminal history, which included more than one rape conviction.^[3] Specifically, after defense counsel elicited testimony from Detective Shoemaker that he directed Officer Cannon to collect a number of items from the room at the Holiday Inn for the purpose of DNA testing, the following exchange occurred:

[DEFENSE COUNSEL]: In addition, did you direct him to obtain those items, did you were you suspecting that perhaps a rape occurred?

[DETECTIVE SHOEMAKER]: Based on the statements Cannon apprised me. He had apprised from the victim, running a background check on [defendant], finding out he was on parole for rape, he was a registered sex offender, had other priors for rape, my concern was that it was a serious case. The suspect needed to be identified. He needed to be caught before he did it again.

After a few more questions, the defense moved for a sidebar, during which a mistrial was requested based on the detectives comments regarding defendants prior rape convictions. The court allowed the parties to complete the examination of Detective Shoemaker, and ruled on the defense motion the following day. During the hearing on the motion for a mistrial, defense counsel argued the prejudice arising from the detectives comments was incurable and that an admonition would only serve to emphasize the fact of defendants multiple rape convictions. Following careful consideration of the issue in light of applicable California Supreme Court cases, the trial court denied the defense motion. Among other things, the court suggested the detectives comments were brief and pointed out the jury was going to hear about defendants prior rape conviction and parole status when the prosecution next presented its Evidence Code section 1108 evidence (the defense called Detective Shoemaker out of order), which would include testimony from defendants parole officer.

B. Analysis

On appeal, defendant contends the court erred in denying the motion for a mistrial. We review a ruling denying a motion for a mistrial under an abuse of discretion standard. (People v. Welch, supra, 20 Cal.4th at p. 749.) The rule is this: A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (People v. Haskett (1982) 30 Cal.3d 841, 854.)

We discern no abuse of discretion on this record. [A] motion for mistrial should be granted only when partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282.) Defendant has made no such showing here. The statements complained of were brief and isolated, and the detective did not identify the number of prior convictions. His testimony was insignificant in light of the evidence of defendants 1998 conviction for rape which followed. Among other things, the emergency room physician who examined the victim in the 1998 case testified the victim had bruises on her neck as well as vaginal injuries, and defendants parole officer at the time testified that, during a police interview, defendant admitted to having entered the victims room and having sex with her. Defendant also claimed to have been extremely drunk and to have passed out before the alleged attack on the victim occurred.

It is also notable that, despite the evidence of defendants prior rape convictions, the jury in this case acquitted defendant of the only count implicating the offense of rape (i.e., count 3 assault with intent to commit rape), and convicted defendant of a lesser included offense in count 2. This suggests the challenged evidence was nowhere near as devastating as defendant claims on appeal.

Based upon the minimal amount of information actually disclosed by Detective Shoemaker regarding defendants prior convictions, and in light of the detailed information concerning defendants prior 1998 rape conviction properly before the jury, we conclude the trial court did not abuse its discretion in denying defendants motion for a mistrial.

III.The record does not show the reconstituted jury disregarded the trial courts instructions to begin deliberations anew.

After a verdict was reached on count 1, the trial court replaced a juror, who had been injured, with an alternate juror. The court received the partial verdict and instructed the reconstituted jury to disregard past deliberations and begin deliberations over again. The court also specifically admonished the jury not to inform the alternate juror of the verdict already reached on count 1.

Defendant acknowledges published cases have approved the procedure followed by the trial court in this case (see People v. Aikens (1988) 207 Cal.App.3d 209, 214; People v. Thomas (1990) 218 Cal.App.3d 1477, 1483, 1485), and is not directly challenging that procedure in his appeal. Instead, defendant argues that the record shows the jury did not begin deliberations anew, and therefore defendant says he is challenging the [trial courts] failure to declare a mistrial once evidence the jury had ignored their instructions became evident.^[4]

Defendants argument is based on a written question the reconstituted jury sent to the trial court, asking, if the defendant is found guilty of charge one, can the assault be considered with charge two? After discussing the question with the attorneys, the court responded to the question as follows:

The simple answer to that is no, for this reason: In the closing argument by the People, they made an election to say that certain acts were, what they were basing their argument as to the foundation of Count One, and certain acts were the basis of what they were arguing was the foundation for Count Two. [] Once that election is made, it therein provides the answer of no to your question.

Defendant now contends the jurys written question proves the reconstituted jury discussed with the alternate juror the verdict already reached on count 1, and thus disregarded the trial courts instructions to begin deliberations over again. We disagree. As the People note, the question was posed as a hypothetical. It does not reveal whether the jury discussed the verdict reached on count 1, and defendants assertion in this regard is speculative. It is just as plausible the jurors discussed the assault alleged in count 1, and the evidence presented in support thereof, without reference to previous deliberations, and wondered whether a guilty finding on that count would also support a guilty finding on count 2. The trial court correctly explained to the jurors that the prosecutor had elected different acts as the basis of each count and therefore they should not consider count 1 and count 2 together.

Defendant has presented no authority that the partial verdict barred the reconstituted jury from engaging in any discussion regarding count 1, and the record does not otherwise compel the conclusion the jury disregarded the trial courts instruction not to discuss the verdict already reached on count 1 after the substitution of jurors. The trial court instructed the jurors to begin deliberations anew after the juror was excused. On appeal we presume that the jury understood and followed the instruction [Citation]. (People v. Sanborn (2005) 133 Cal.App.4th 1462, 1468.) Defendant has not demonstrated this presumption was overcome here.

DISPOSITION

The judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

VARTABEDIAN, Acting P.J.

_____________________

WISEMAN, J.

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

^[2] For example, during formal evaluations, defendant would report symptoms of mental illness such as hallucinations. However, these reports were contradicted by defendants behavior in his day-to-day life in the hospital. Thus, Dr. Muriel Yanez, one of the Atascadero psychologists, noted: He was able to socialize with other patients and hold articulate conversations with staff and other patients. He was never observed to appear to be responding to internal stimuli nor did he ever report that he was having difficulty with auditory or visual hallucinations or feeling depressed outside of when he was being evaluated. He was never observed to be tearful or sad when on the unit except for when he was in an assessment-type of setting. When being assessed, Mr. Davis then became tearful when talking about his father and grandmother. However, he did not display any symptoms associated with depression, anxiety, or psychosis while on the unit.

Defendant was also administered tests specifically designed to measure malingering. Dr. Yanez stated that overall these tests demonstrated that defendant was not only malingering psychiatric, but also cognitive symptoms. She explained: The Structured Interview of Reported Symptoms is a measure used to identify malingering of psychiatric symptoms that are not likely to be found occurring together and that are extreme and preposterous compared to true psychiatric patients. For example, he endorsed symptoms similar to hearing voices reading him cooking recipes in a foreign language and believing that inanimate objects have their own language. At one point, Mr. Davis specifically stated that he not only heard the voices singing to him in a foreign language, but that he believed that the language was extraterrestrial, which is extraordinarily atypical for an authentic psychiatric patient. In addition, Mr. Davis had moderately elevated scores on scales that measure blatant symptoms associated with mental illness and very high amounts of reported unbearably severe symptoms in an indiscriminate reporting for a variety of symptoms. The elevation on these scales reflect an unsophisticated attempt to appear mentally ill. What this means is basically that Mr. Davis attempted to look mentally ill based upon rather nave perception of what mentally ill people are supposed to look like. The combination of elevated scores is characteristic of individuals who are faking a mental disorder and is rarely seen in patients responding truthfully. [] Based on the elevations in the pattern of responses, there is a 100% likelihood that Mr. Davis is feigning his symptomatology. (Emphasis original.)

^[3] Defendants section 969b packet reflects that in 1986, defendant was convicted of forcible rape and received a six-year prison term.

^[4] The record reflects that on August 25, 2006, defendant filed a motion asking the court for a new trial or, alternatively, to set aside the jury verdict on count 1. Defendant argued that the court erred by accepting the partial verdict and not having the reconstituted jury begin deliberations anew as to all counts. Defendant does not re-raise this claim on appeal or challenge the courts denial of his new trial motion. However, he suggests there is a split of authority as to the proper procedure to be followed by a trial court when a juror substitution is made after the jury has already reached a verdict on one or more counts. We find no occasion to address this question here as defendant makes clear he is not challenging the courts action but is instead making what is essentially a juror misconduct claim.