P.
v. Page
Filed
1/25/13 P. v. Page CA3
NOT
TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD APPELLATE DISTRICT
(Sacramento)
----
>
THE PEOPLE, Plaintiff and Respondent, v. TYRONE PAGE, Defendant and Appellant. | C067885 (Super. Ct. No. 10F06027) |
A jury convicted
defendant Tyrone Page of possessing a
firearm as a convicted felon (former Pen. Code, § 12021, subd. (a)(1),
repealed by Stats. 2010, ch. 711, § 4, operative on Jan. 1, 2012),href="#_ftn1" name="_ftnref1" title="">[1] and href="http://www.mcmillanlaw.com/">possessing a short-barreled shotgun
(former § 12020, subd. (a), repealed by Stats. 2010, ch. 711,
§ 4, operative on Jan. 1,
2012).href="#_ftn2"
name="_ftnref2" title="">[2] The trial court found defendant had four
prior serious felony convictions (§ 667, subds. (b)-(i)) and had
served three prior prison terms (§ 667.5, subd. (b)). The trial court dismissed three of the prior
serious felony convictions as well as one of the prior prison terms. The trial court sentenced defendant to six
years in state prison.
On appeal, defendant
argues (1) this court must independently examine the sealed portion of the
hearing on his motion to disclose the identity of an anonymous informant to
assess whether the trial court erred in denying defense counsel’s motion to
disclose the informant’s name, (2) the trial court erred by admitting
testimony about circumstances of the police encounter with defendant prior to
his arrest, (3) the admission of testimony about the anonymous informant’s
tip violated the Confrontation Clause, (4) his motion for mistrial should
have been granted after a police officer testified defendant had previously
been convicted of burglary, and
(5) the cumulative prejudice of these errors compels reversal of the
judgment.
We have examined the
sealed portion of the record and find no error in the denial of defense
counsel’s motion to disclose the identity of the anonymous informant. We conclude the trial court did not commit
evidentiary error in allowing testimony about how the police encountered
defendant or evidence about the anonymous tip regarding defendant’s possession
of a shotgun. The trial court did not
err in denying defendant’s motion for mistrial because the testifying officer’s
brief mention of defendant’s burglary conviction was cured by instructions
given to the jury. Having found no
error, we reject defendant’s claim of prejudice as a result of multiple errors
at trial. Accordingly, we affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORY
Around 5:00 p.m. on September 12, 2010, Sacramento
Police Officers Matt Armstrong and Edward Macaulay arrived at an apartment
complex located at 375 El Camino Avenue in Sacramento. The officers planned to serve a warrant on
someone believed to live in apartment 4. While standing in front of apartment 4, the
officers saw defendant leaning out the window of apartment 1. The officers decided to investigate because
no one was supposed to be in apartment 1 after the
occupants had been arrested on the previous day.
As a result of their
investigation, the officers detained defendant in the back seat of the patrol
vehicle and discovered he was on parole.
The officers placed defendant under arrest at the request of his parole
officer. One of the police officers then
received an anonymous tip that defendant “was in possession of items that he
was prohibited from owning.â€
Later that evening,
officers searched a residence on Beaumont
Street that defendant had listed as his current
address. Defendant’s parole agent had
been to this one-bedroom apartment on Beaumont
Street three days earlier and had contacted
defendant there.
During the search of the
Beaumont Street apartment on
September 12, 2010, police
officers found an illegal, short-barreled shotgun and an unfired shotgun shell
under the bed. In the same room, the
officers found a picture of defendant and his wife, defendant’s parole
identification card, and several more identification cards for defendant.
No fingerprints were
discovered on the shotgun or the shotgun shell.
At trial, the parties
stipulated defendant had previously been convicted of a felony.
DISCUSSION
>I
>Motion to Disclose the Identity of the Anonymous
Informant
Defendant contends we
must examine the sealed portion of the hearing on his motion to disclose the
identity of the anonymous informant to determine whether the motion was
properly denied. The People agree that
we may examine the sealed record as requested by defendant. We conclude the sealed portions of the
hearing establish no error in the trial court’s denial of the motion to
disclose.
A.
>Defendant’s Motion to Disclose>
Prior to trial, defense counsel
moved to disclose the identity of the anonymous source of the tip that
defendant possessed items that violated conditions of his parole. The People opposed the motion. After conducting an in camera hearing, the
trial court denied the motion to disclose.
In doing so, the court stated:
“Based on the hearing, the Court is
denying the request. [¶] And getting a rather thorough walk through as
to the chain of events [on the day of the search], including the day prior and
the other apartment complex, there is no singular individual that is being in
law enforcement on this sort of search for a shotgun at different –- at each of
those locations, so, instead, convinced that this is a situation where the
person relied on by law enforcement does fall under the [sic] merely pointed a finger of suspicion against [defendant]. [¶] I
don’t think that the person rises to the level of a material witness as
envisioned under Evidence Code Section 1041.
As for those reasons that the Court –- and given obviously concerned [>sic] about an informant’s well-being
when providing information to law enforcement in a confidential fashion that
the Court is denying the motion at this time.â€
At trial, Officer Macauley testified
he personally received a tip from “a person who wished to remain anonymousâ€
that defendant “was in possession of items that he was prohibited from
owning.†Officer Macauley explained the
police sometimes receive anonymous tips from “someone [who] will call the
police department or inform an officer of some information, and they wish to
totally be anonymous, not be written down, not be mentioned by identifying
information.†In this case, “the
anonymous source was someone [Officer Macauley] spoke with†but whose identity
he did not record.
B.
>Analysis
The California Supreme
Court has explained, “the prosecution must disclose the name of an informant
who is a material witness in a criminal case or suffer dismissal of the charges
against the defendant. (Eleazer v.
Superior Court (1970) 1 Cal.3d 847, 851.)
An informant is a material witness if there appears, from the evidence
presented, a reasonable possibility that he or she could give evidence on the
issue of guilt that might exonerate the defendant. (People v. Borunda (1974) 11 Cal.3d
523, 527.)†(People v. Lawley
(2002) 27 Cal.4th 102, 159-160.)
“Where the evidence
indicates the informer was an actual participant in the crime alleged or was a
nonparticipating eyewitness to that offense, ipso facto it is held he [or she]
would be a material witness on the issue of guilt and nondisclosure will
deprive the defendant of a fair trial.â€
(People v. Lee (1985) 164 Cal.App.3d 830, 835–836.) Otherwise, disclosure is compelled “only if
the defendant makes an adequate showing that the informant can give >exculpatory evidence.†(Davis v. Superior
Court
(2010) 186 Cal.App.4th 1272, 1277, italics added.) Moreover, “[a]n informant is not a ‘material
witness’ nor does his [or her] nondisclosure deny the defendant a fair trial
where the informant’s testimony although ‘material’ on the issue of guilt could
only further implicate rather than exonerate the defendant.†(People v. Alderrou (1987) 191
Cal.App.3d 1074, 1080.) Thus, when the
evidence adduced at an in camera
hearing fails to show a “reasonable possibility that a particular percipient
eyewitness-informer could give evidence on the issue of guilt which might
result in a defendant’s exoneration.
[Citation.] [T]he witness would
not be material under the test for materiality established by the California
Supreme Court.†(People v. Lanfrey
(1988) 204 Cal.App.3d 491, 502–503.)
With these principles in
mind, we have reviewed the transcript of the in camera hearing held on
February 8, 2011. We conclude the
trial court properly conducted the hearing in order to determine whether
defendant’s right to a fair trial and confrontation of material witnesses
required disclosure of the anonymous informant’s identity. The court questioned Officers Armstrong and
Macauley before concluding the motion to disclose should be denied and the
transcript of the in camera hearing be sealed.
Based on our review of the in camera hearing, we conclude the trial
court did not err in reaching these conclusions.
>II
>Evidence Regarding the Events at >375 El
Camino Avenue
Defendant contends the
trial court erred in allowing the police officers to testify about the
circumstances leading to defendant’s arrest at 375 El
Camino Avenue. Specifically, defendant argues the evidence
should have been excluded under Evidence Code section 352 (Section 352). He further argues the officers’ testimony was
improperly admitted as character evidence under Evidence Code section
1101. We reject the contentions.
A.
>Motion to Exclude Evidence>
Before trial, the
defense moved to exclude any testimony regarding the circumstances of
defendant’s detention and arrest at 375 El
Camino Avenue. Defense counsel argued that evidence
regarding the events on the day before the shotgun’s discovery was irrelevant
to the charges against defendant. The
trial court ruled on the motion to exclude as follows:
“Motion in limine . . .
to exclude details of the defendant’s arrest for parole violation prior to the
discovery of the gun at the residence will be granted in part and denied in
part.
“The People again
contend and [the] court understands this evidence is offered to give context
and background as to why the officers ultimately wound up conducting a search
at the defendant’s residence.
“Under [section] 352
analysis, the Court finds that the substantial danger of undue prejudice in
allowing the jury to hear the specific details that the defendant fled from the
police and was arrested trying to climb over a fence outweighs the probative
value . . . this evidence might have for setting the context for why
the search at issue ultimately occurred.
“On the other hand, as
we again discussed . . . , the Court will allow the officers to generally
testify along the lines of while executing an unrelated warrant at apartment
four, they observed an individual in apartment one, which they believed to be
unoccupied and decided to investigate.
As part of that investigation, the defendant was . . . detained and
determined to be on parole.
“As sanitized, the
probative value of this evidence is not substantially outweighed by the
probability that its admission would create a substantial danger of undue
prejudice as it will allow the People to present their background and context
evidence while avoiding having the jury specifically hear that defendant fled
from the police and was arrested.â€
B. >
>Evidence Code Section 352
Section 352 excludes
unduly inflammatory evidence by providing that a “court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.â€
As this court recently
explained, “‘“‘[A]ll evidence which tends to prove guilt is prejudicial or
damaging to the defendant’s case. The
stronger the evidence, the more it is “prejudicial.†The “prejudice†referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an emotional bias
against the defendant as an individual and which has very little effect on
the issues.’†(People v. Karis (1988) 46 Cal.3d 612,
638; see Vorse [v. Sarasy (1997)] 53 Cal.App.4th [998,]
1009.)’ (People v. Escudero
(2010) 183 Cal.App.4th 02, 312, italics added (Escudero).)†(People v. Holford (2012) 203
Cal.App.4th 155, 167 (Holford).)
Thus, “[e]vidence is not
inadmissible under section 352 unless the probative value is ‘substantially’
outweighed by the probability of a ‘substantial danger’ of undue prejudice or
other statutory counterweights. Our high
court has emphasized the word ‘substantial’ in section 352. (People v. Tran (2011) 51 Cal.4th
1040, 1047 [‘But Evidence Code section 352 requires the exclusion of evidence
only when its probative value is substantially outweighed by its
prejudicial effect’]; cf. People v. Geier (2007) 41 Cal.4th 555,
585.)†(Holford, supra,
203 Cal.App.4th at p. 167.)
In reviewing a
determination of whether to exclude or admit evidence under section 352, we are
mindful that “[t]rial courts enjoy ‘“broad discretionâ€â€™ in deciding whether the
probability of a substantial danger of prejudice substantially outweighs
probative value. (People v. Michaels
(2002) 28 Cal.4th 486, 532 (Michaels); People v. Perry (2006) 38
Cal.4th 302, 318; People v. Memro (1995) 11 Cal.4th 786, 866 (Memro).) A trial court’s exercise of discretion ‘will
not be disturbed except on a showing the trial court exercised its discretion
in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ (People v. Rodriguez (1999) 20 Cal.4th
1, 9–10.)†(Holford, supra,
203 Cal.App.4th at pp. 167-168.)
Here, the trial court
admitted the testimony of Officers Armstrong and Macauley regarding the events
at 375 El Camino Avenue. The court did
not abuse its discretion under section 352 by determining that the
probative value of the admitted portion of the evidence was not overshadowed by
potential prejudice to the defendant’s right to a fair trial. Although the police encounter with defendant
on El Camino Avenue was not itself the basis for the charges in this case, it
did provide the jury with the context for the search of defendant’s listed
address on Beaumont Street. By
disallowing testimony about defendant running away from the police, the trial
court prevented the jury from drawing unwarranted inferences of guilt due to
flight. Defendant’s status as a parolee
and his presence in an apartment that should have been empty explained why the
police decided to search both the apartment and then his listed residence on
Beaumont Street.
The officers’ testimony
about background for the search of defendant’s residence was not inflammatory
and did not invite the jury to convict him for reasons unrelated to actual
guilt or innocence. Even evidence of uncharged
conduct may be admitted over an objection based on section 352 when it
illuminates the context within which the charged offenses were committed. (See People v. McKinnon (2011) 52
Cal.4th 610, 655 [allowing evidence to provide context for defendant’s
statements that tended to show motive and intent for murder].) Although the events on El Camino Avenue
set the stage for the arrest of defendant and subsequent search of his listed
residential address, the evidence was not of a sort to inflame passions or
prejudice against defendant.
Contrary to defendant’s
assertion, the evidence did not portray him as burglarizing apartment 1 at 375
El Camino Avenue. The evidence did not
suggest defendant was engaging in a theft-related offense. Rather, the officers’ testimony established
that defendant’s arrest was made at the direction of his parole officer. Thus, the evidence did not portray defendant
as a burglar at 375 El Camino Avenue.
The trial court did not
abuse its discretion under section 352 by admitting evidence about how the
police encountered defendant on El Camino Avenue. Instead, the court properly weighed the
evidence and determined his flight should be excluded from the evidence. The remaining evidence was not prejudicial to
defendant’s right to a fair trial.
C. >
>Admission of the Officers’ Testimony as
Character Evidence
Defendant contends the
police officers’ testimony regarding the events at 375 El Camino Avenue was
improperly admitted as character evidence under Evidence Code section 1101.href="#_ftn3" name="_ftnref3" title="">[3] The People counter that the claim was forfeited
for failure of the defense to object on this ground at trial. We agree with the People that this
evidentiary challenge has not been preserved for appellate review.
Evidence Code section
353 precludes evidentiary challenges from being cognizable on appeal unless an
objection on the same grounds was first made in the trial court. As we previously explained, “[s]ection 353
provides in pertinent part, ‘A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless:
[¶] (a) There appears of
record an objection to or a motion to exclude or to strike the evidence that
was timely made and so stated as to make clear the specific ground of the
objection or motion. . . .’ (Italics
added.) In accord with this statute, our
high court has consistently held that a ‘“‘defendant’s failure to make a timely
and specific objection’ on the ground asserted on appeal makes that
ground not cognizable.
[Citation.]â€â€™ (People v.
Partida (2005) 37 Cal.4th 428, 434, italics added (Partida).) ‘“The
reason for the requirement is manifest:
a specifically grounded objection to a defined body of evidence serves
to prevent error. It allows the trial
judge to consider excluding the evidence or limiting its admission to avoid
possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the offer of
proof, or take other steps designed to minimize the prospect of
reversal.â€â€™ (Partida, supra, 37
Cal.4th at p. 434.) ‘“[T]he
objection must be made in such a way as to alert the trial court to the . . .
basis on which exclusion is sought, and to afford the People an opportunity to
establish its admissibility.â€
[Citation.] What is important is that
the objection fairly inform the trial court, as well as the party offering the
evidence, of the specific reason or reasons the objecting party believes
the evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling. If the court overrules the objection, the
objecting party may argue on appeal that the evidence should have been excluded
for the reason asserted at trial, but it may not argue on appeal that the court
should have excluded the evidence for a reason different from the one stated at
trial. A party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct.’ (Id. at p. 435, italics
added.)†(Holford, supra,
203 Cal.App.4th at pp. 168-169.)
In this case, defense
counsel objected on grounds of relevance to the testimony of the officers
regarding the events on El Camino Avenue.
However, the defense did not object on grounds the evidence should be
excluded as improper character evidence.
Accordingly, defendant may not raise for the first time on appeal the
issue of evidentiary error based on improper character evidence. The issue has been forfeited.
>III
>Admission of Evidence Regarding the Anonymous
Tip
Defendant contends the
trial court erred in admitting evidence of the anonymous tip because it
violated the rule against the admission of hearsay
evidence. We disagree. The People counter that the issue has been
forfeited for review because the defense failed to renew an in limine
evidentiary objection again at trial. We
need not resolve whether the trial court’s in limine ruling was sufficiently
final to excuse further objection by the defense on the same grounds (see People
v. Crittenden (1994) 9 Cal.4th 83, 127) because we exercise our discretion
to resolve the issue on the merits in order to forestall a claim of ineffective
assistance of counsel for lack of renewed objection. (See, e.g., People v. Smith (2003) 31
Cal.4th 1207, 1215; People v. Williams (2009) 170 Cal.App.4th 587,
628.) On the merits, we reject
defendant’s argument.
A.
>Hearsay Objection by the Defense>
Prior to trial, the
defense moved to exclude the evidence of the anonymous tip about defendant
possessing the shotgun on grounds that it constituted “inadmissible
hearsay.†Defense counsel pointed out he
was unable to cross-examine the anonymous informant and asserted defendant’s
confrontation rights would be violated by the evidence of the anonymous
tip.
After the police
officers testified, the court on its own motion instructed the jury about the
testimony regarding the anonymous tip as follows:
“Ladies and gentlemen,
you have heard evidence that law enforcement officers had received an anonymous
tip that the defendant was in possession of [an] item or items that he was
prohibited from possessing. [¶] You may not consider this tip as being true,
nor may you speculate as to the informant’s personal observation or
knowledge. You may not consider the tip
for the purpose of finding that the defendant either possessed the alleged
weapon or had knowledge of the weapon at 2355 Beaumont Street apartment A. This evidence is only relevant to explain why
the officers went to that address.â€
At the close of
evidence, the trial court repeated the admonition in nearly verbatim form.
B.
>Admission of an Out-of-court Statement for
Nonhearsay Purposes
Hearsay evidence is
defined as “a statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter
stated.†(Evid. Code, § 1200.) However, as the California Supreme Court has
explained, “[a]n out-of-court statement is properly admitted if a nonhearsay
purpose for admitting the statement is identified, and the nonhearsay
purpose is relevant to an issue in dispute.
(People v. Armendariz (1984) 37 Cal.3d 573, 585; People v.
Bunyard (1988) 45 Cal.3d 1189, 1204–1205; see People v. Scalzi
(1981) 126 Cal.App.3d 901, 907 [‘“one important category of nonhearsay evidence
-— evidence of a declarant’s statement that is offered to prove that the
statement imparted certain information to the hearer and that the hearer,
believing such information to be true, acted in conformity with that
belief. The statement is not hearsay,
since it is the hearer’s reaction to the statement that is the relevant fact
sought to be proved, not the truth of the matter asserted in the
statementâ€â€™].)†(People v. Turner
(1994) 8 Cal.4th 137, 189, overruled
on another ground in People v. Griffin (2004) 33 Cal.4th 536,
555, fn. 5.)
Here, the jury was
apprised of the nonhearsay purpose for introducing the evidence regarding the
anonymous tip about defendant’s possession of items he was prohibited from
possessing. Ultimately, the trial court
twice admonished the jury it could consider the evidence regarding the
anonymous tip for no purpose other than to explain why the police went to the
Beaumont address to conduct a search. We
presume jurors understand and follow instructions given by the trial
court. (People v. Morales (2001) 25 Cal.4th 34, 47.) The trial court’s admonitions were clear and
straightforward in explaining the anonymous tip could only be used to explain
why the police went to Beaumont Street.
Defendant asserts the
jury could not have disregarded the incriminating nature of the anonymous tip
because it “needed no inferential leap to conclude that the tip was talking
about the firearm.†To credit
defendant’s argument would require us to conclude any potentially incriminating
evidence lies beyond the ability of a limiting instruction to keep the jury
from using the evidence in an impermissible manner. This is not a case in which the evidence
subject to the limiting instruction was powerfully incriminating –- such as
with the confession of a codefendant.
(See, e.g., People v. Aranda (1965) 63 Cal.2d 518, 530,
superseded by statute on another ground as recognized in People v. Fletcher (1996) 13 Cal.4th 451, 465.) The anonymous tip in this case is properly
subject to “the almost invariable assumption of the law that jurors follow
their instructions†that the United States Supreme Court has “applied in many
varying contexts.†(Richardson v. Marsh (1987) 481 U.S. 200, 206 [95 L.Ed.2d
176].) We adhere to the rule that
presumes jurors have understood and followed the instructions given by the
trial court.
Defendant next contends
his federal constitutional right to confront witnesses against him was
violated. In support, he relies on Crawford
v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. He argues his inability to cross-examine the
anonymous source of the tip regarding the shotgun violated his right to
confront witnesses against him. We
disagree.
Here, the anonymous tip
was admitted for the nonhearsay purpose of explaining why the police went to
the Beaumont Street address to conduct a search of defendant’s residence. By contrast, “Crawford was concerned with the substantive use of hearsay
evidence that was admitted within an exception to the hearsay rule. It did not suggest that the confrontation
clause was implicated by admission of hearsay for nonhearsay purposes. In fact, Crawford expressly stated
that the confrontation clause ‘does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.’ (Crawford, supra, 541 U.S. at
p. 59, fn. 9.) ‘Crawford
does not undermine the established rule that experts can testify to their
opinions on relevant matters, and relate the information and sources upon which
they rely in forming those opinions.’ (People
v. Thomas, supra, 130 Cal.App.4th at p. 1210.) The reason is clear; if
hearsay is admitted for a nonhearsay purpose, it does not turn upon the
credibility of the hearsay declarant, making cross-examination of that person
less important. The hearsay relied upon
by an expert in forming his or her opinion is ‘examined to assess the weight of
the expert’s opinion,’ not the validity of their contents.†(People v. Cooper (2007) 148
Cal.App.4th 731, 747.)
We conclude the
admission of the anonymous tip did not violate the rule against hearsay
evidence given the trial court’s limiting instructions. Moreover, defendant’s confrontation rights
were not violated by the admission of the anonymous tip.
>IV
>Denial of Motion for Mistrial
Defendant contends the
trial court erred in denying his motion for mistrial after Officer Armstrong
testified defendant was on parole for burglary at the time of his arrest. The officer’s testimony violated the trial
court’s in limine ruling that excluded mention of defendant’s prior criminal
convictions. Defendant asserts his due
process rights required the trial court to declare a mistrial after the
officer’s errant testimony.
A.
>Defendant’s Motion for Mistrial>
During the People’s
case-in-chief, Officer Armstrong testified as follows:
“Q [By the prosecutor]: At the time that you contacted [defendant],
did you attempt to gain information about who he was?
“A He identified himself as Tyrone Page, then we
ran him in our police computer. Our
computer will tell us everything about him –-
“[Defense counsel]: Objection, nonresponsive.
“THE COURT: Sustained.
Ask a follow-up question.
“Q [Prosecutor]:
Once you learned the name Tyrone Page, what did you do with that
information?
“A Run his name, birthday. It will run everything about him related to
the City of Sacramento or the State of California. And in this instance, it tells us –- it
confirms he’s on parole for burglary in California.
“THE COURT: I’ll strike that last part. Why don’t you reask the question. I’ll strike the entire answer.
“The jury should
disregard it.
“Q [Prosecutor]:
Did you learn that he was on parole?
“A I did.
“Q . . . was he placed under arrest at
that time?
“A He was placed under arrest because he got in
touch with his parole agent who wanted him violated and arrested.â€
Shortly thereafter and
outside the presence of the jury, defense counsel moved for a mistrial. The prosecutor responded that he had advised
the officer and did not “know exactly why Officer Armstrong said that.†The trial court denied the motion for
mistrial, noting: “The jury has been
instructed not to consider it. The jury
will be instructed that the fact he’s on parole is not to be considered. [¶]
Not to excuse the officer’s misstatement, but it is a felon in possession
trial.†The defense asked to examine the
officer about whether he had been advised to avoid mentioning prior
convictions, but the trial court denied the request. The court did not find the officer’s
testimony to be in bad faith. However,
the court admonished the People that “further slip ups by the witnesses gets us
[sic] closer to where we need to
start [trial] all over again.â€
After the close of
evidence, the trial court instructed the jury to disregard testimony that had
been stricken. The court further
instructed that evidence of defendant’s status as a parolee was to be
considered for no other purpose than to explain why the officers went to
Beaumont Street to conduct a search. The
jury was admonished that evidence of defendant’s prior conviction was relevant
only to prove he was a felon in possession of a firearm. The court instructed the jury that
defendant’s prior conviction was not evidence of guilt in the present case.
B.
>Analysis
The California Supreme
Court has explained, “A trial court should grant a motion for mistrial ‘only
when “‘a party’s chances of receiving a fair trial have been irreparably
damagedՉۉ۪ (People v. Ayala
(2000) 23 Cal.4th 225, 282), that is, if it is ‘apprised of prejudice that it
judges incurable by admonition or instruction’ (People v. Haskett (1982)
30 Cal.3d 841, 854). ‘Whether a
particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions.’ (Ibid.) Accordingly, we review a trial court’s ruling
on a motion for mistrial for abuse of discretion. (See People v. Valdez
(2004) 32 Cal.4th 73, 128.)†(People
v. Avila (2006) 38 Cal.4th 491, 573.)
Here, defendant’s prior
burglary conviction was mentioned only once in a case in which the jury had
been properly informed he was a convicted felon. The trial court struck the problematic answer
and immediately admonished the jury to disregard it. Again after the close of evidence, the trial
court instructed the jury to disregard stricken testimony. Moreover, the court told the jury that
defendant’s prior felony conviction did not constitute evidence of guilt in the
present case. As we explained in part
III B., we generally presume the jury has heeded the admonishments and
instructions of the trial court. The
presumption applies here because the mention of the exact nature of the prior
conviction did not constitute inflammatory or prejudicial evidence in a case in
which the jury already knew he had been convicted of a felony.
In People v. Avila,
supra, 38 Cal.4th 491, the California Supreme Court affirmed the denial of
a motion for mistrial after a prosecution witness violated an order not to
mention defendant’s parole status. (>Id. at pp. 571-572.) The Avila court held the errant
testimony was cured by the trial court’s admonishment that the jury was to
disregard the testimony that defendant had just been released from prison. (Id.
at p. 572.) The actual answer given
by the witness was that, prior to the charged murders, he had been told: “Keep cool.
Keep -— kick back, because -— don’t do nothin’, ‘cause [defendant]
barely got out of prison. And he’s
crazy. He’ll kill you.†(Id.
at p. 572.) The Avila court
found this statement was capable of being cured by the trial court’s
instruction that the jury ignore the reference to defendant’s recent release
from incarceration. (>Id. at pp. 573-574.) As did the Avila court, we also
presume the jury followed the instruction to disregard stricken testimony. Accordingly, we conclude the trial court did
not err in denying the motion for mistrial.
>V
>Cumulative Error
Defendant contends the
cumulative effect of errors committed at trial violated his right to due
process of law under the 14th Amendment to the United States Constitution. We have not found any error occurring during
trial. Consequently, there are not
multiple errors to cumulate to defendant’s prejudice. (People v. Sanders (1995) 11 Cal.4th
475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 630.)
DISPOSITION
The judgment is affirmed. The superior court clerk is directed to
prepare a corrected abstract of judgment to reflect defendant’s conviction, in
Count 2, of former Penal Code section 12020, subdivision (a), and to forward a
certified copy of the corrected abstract to the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation.
HOCH , J.
We concur:
RAYE , P. J.
MAURO , J.