P. v. Ventura

Filed 2/11/10 P. v. Ventura CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Robert Anthony Ventura was convicted by a jury of making a criminal threat against his former girlfriend. He contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred when it instructed the jury on the need for unanimity, the effect of defendants voluntary intoxication, and the definition of sustained fear required for a criminal threat conviction; (3) the court should have granted a mistrial due to prosecutorial misconduct; and (4) he received ineffective assistance from his counsel. None of defendants contentions support reversal, and we therefore affirm the judgment.

BACKGROUND

Prosecution Case

Defendantmet Jane Doe in March or April of 2007.[1] By May 1, 2007, they were dating and by early June they were living together. In late June, however, county social worker Jeanne Oliver informed Doe that defendant had a long history of violent crime that included armed robbery. Doe ended her relationship with defendant and moved back to her parents home.

The breakup was tumultuous. Defendant called Doe a fucking bitch and told her to go home and be controlled by your parents. Several days after Doe moved back home, defendant began to make harassing phone calls. He would call her a fucking bitch and tell her that she had better be at an Alcoholics Anonymous meeting, or make derogatory statements about her not having been there. His tone was aggressive and Doe was very fearful. Does family received so many hang-up calls and calls from strangers at all hours of the day and night that Does father started taking the phone off the hook. In early July Doe asked Oliver about getting a restraining order against defendant, but the social worker said that she did not think Doe was currently in danger.

Defendant was seen at Amys Kitchen during Does graveyard shifts and, on one occasion, called her at work on one of the warehousemens radios. He left notes on her locker at work almost every other day. One of the notes said defendant would be at a specific dead-end until 5:15 a.m. and at the pool in her apartment complex every night at 8:00 p.m., and that Doe should join him. Doe was freaked out that defendant was at her apartment complex every night, sleeping in his car at the dead-end, and pressuring her to join him at an Alcoholics Anonymous meeting. She would not leave her house unless she had somewhere to go. She worried about going back and forth to work and told the forklift drivers to be on the look out for defendant.

Around 5:00 a.m. on July 9, 2007, Amys Kitchen employee Priscilla Ponce saw defendant using the phone in her office to call Doe. Five or six days earlier, while conducting a locker inspection, Ponce found a note from Doe in Does locker that said I love Rob Ventura. On or around July 9, two department heads at Amys Kitchen met with Doe after hearing that defendant had been seen on the property. Doe cried, told them she was afraid of defendant, and asked for help. Following the meeting, Amys Kitchen security was notified that defendant was not to be on the premises.

On July 14, 2007, Doe found a picture of herself and her baby on her front doorstep, torn into about 50 pieces. Finding the ripped-up picture terrified her and made her feel like thats what he could possibly do to us.

Does parents went out to dinner with Does sister and her family the next evening, and Doe was alone in the apartment. The phone rang just after they left. Doe heard the answering machine record the call and then replayed the message. It was defendant. He said: You want to see psycho bitch. Im going to fucking kill you. Doe was frightened by the message, in part because of defendants violent past, his stalking her at work, and the torn picture left on her doorstep the night before. She made sure the doors were locked and called her sister to ask her parents what she should do. They told her to call the police. In the meantime, defendant called again and left another threatening expletive-laced message on the answering machine.

It was a windy day and Doe could hear the sound of wind on the messages so she thought defendant (who did not own a cell phone) was calling from a nearby pay phone. She believed he was watching her house and that he might kill her.

At 6:23 p.m., Doe called 911, told the operator her ex-boyfriend had threatened to kill her, and played the two phone messages over the phone. Doe stayed on the phone with the 911 operator until Santa Rosa Police Officer James Griffin arrived at 6:34 p.m. The call waiting signal beeped constantly, but Doe was afraid to answer.

Doe was visibly upset, agitated and scared when Officer Griffin entered her apartment. She told him about the hang-up calls and the ripped-up picture, said she thought defendant was probably watching the apartment complex, and gave him the name of defendants parole officer. Another five to seven messages came in while Officer Griffin was there. At his instruction, Doe answered two of the calls even though she was afraid. The officer was with her and she wanted to get her point across to defendant to leave her alone. Defendant said he was at home, and Doe no longer heard wind in the background. During the second phone conversation, Doe said, this is sick, youre fuckin calling, the harassing, saying youre gonna kill me and my family. Its over. Youre stupid. Defendant responded: Huh, I am, dude. You better be frickin careful, dude, cause Im fuckin after you you dumb bitch. Hey, Im dead serious, Ill put that on grandmothers grave. Youre fuckin through. When Doe asked defendant why he tore up the picture of Doe and her baby, defendant did not deny that he did it.

Defendant left three more messages on Does answering machine while Officer Griffin was still at Does apartment. In one, he threatened Im gonna make you lose your job, Im gonna make you lose your house, Im gonna make you lose frickin everything and I can do that. Just remember that. Ill fuckin make up lies to fuckin . . . to get you fucked up, bitch. Watch, Im fuckin after you. Watch. He said he would see Doe the next day at work and you aint gonna like it. Hah, hah, bitch! and said he would keep calling all night long.

Officer Griffin stayed with Doe for about an hour. He told her about protective measures the police could take if he were unable to locate defendant that night. Doe seemed less agitated by the time he left.

Defendant left one more message that night after Officer Griffin left. In this message he apologized and asked Doe to erase his prior messages.

Officer Griffin arrested defendant around 8:00 p.m. Defendant said he had been drinking, but Officer Griffin did not observe any signs that would indicate defendant was intoxicated. Around 8:30 or 9:00 p.m., Doe learned defendant was in custody and stopped fearing for her life.

Defense Case

Sometime between June 29, 2007, and July 9, 2007, Doe spoke with social worker Jeanne Oliver about whether she should get a restraining order against defendant. Doe told Oliver that defendant had been coming to her work place and leaving her notes. According to Oliver, Doe felt defendants behavior was not threatening and she believed he would stop. It was Olivers practice to encourage clients to seek restraining orders if they were fearful. However, she also thought it was possible that Doe might have construed her response as advice to ignore defendants behavior.

Defendants friend Justin Noble saw defendant with Doe at the Santa Rosa fairgrounds around 6:30 p.m. on July 4, 2007. Noble also saw defendant with Doe at a Narcotics Anonymous meeting sometime between July 10 and July 15. Defendants friends Trina Green and Richard Stevenson also saw defendant with Doe at the fairgrounds watching the fireworks show. Doe and defendant acted affectionately, like a couple.

On July 7, 2007, defendant went to Santa Rosa Memorial Hospital. Hospital records showed that he was accompanied by someone identified as a significant other.

Thomas Boman was the safety manager at Amys Kitchen. On July 8, 2007, Boman was told by employees Harry Singh and Joseph Nicastro that defendant had been seen on the premises that night. Singh also told Boman he had seen defendant and Doe hugging and kissing. Pursuant to a company policy that did not permit former employees on the grounds, Boman issued the security guards a bulletin with defendants photograph to make sure he stayed off the premises.

Defendant rode his bike to Green and Stevensons house around 5:30 p.m. on July 15, 2007. He was drunk when he arrived, and he continued to drink at their home. He was upset about an argument with Doe. Defendant left his friends house sometime between 6:00 and 7:30 p.m.

Records showed defendant called Doe from his home 21 times between 6:00 and 7:00 p.m. on July 15, 2007.

The jury found defendant guilty of making a criminal threat in violation of Penal Code section 422.[2] Defendant admitted two prior strike convictions and three prior prison terms. Defendant was initially sentenced to 25 years to life in prison under the three strikes law, plus three consecutive one-year enhancements for the prior prison terms, for a total term of 28 years to life. However, the court recalled the sentence and commitment pursuant to section 1170, subdivision (d) and resentenced defendant to a term of nine years. Defendant timely appealed.

DISCUSSION

I. Sufficient Evidence Supports the Conviction

Defendant contends the evidence was insufficient to support his conviction under section 422 for making a criminal threat. Specifically, he asserts that two elements required to prove a criminal threat proscribed by section 422 were not proven: his threat was insufficient to convey the gravity of purpose and immediate prospect of execution, and Does fear was not reasonable. We disagree.

A. Legal Principles

In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person, (2) that the defendant made the threat with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, (3) that the threatwhich may be made verbally, in writing, or by means of an electronic communication devicewas on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, (4) that the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate familys safety, and (5) that the threatened persons fear was reasonabl[e] under the circumstances.[3] (People v. Toledo(2001) 26 Cal.4th 221, 227-228.)

We independently review the record to determine whether there is sufficient evidence supporting defendants conviction. As the Supreme Court explained in In re George T. (2004) 33 Cal.4th 620, 633-634, the current version of section 422 was enacted by the Legislature after this court held the prior version unconstitutionally vague under the California Constitution . . . . The current version of section 422 was drafted with the mandates of the First Amendment in mind, incorporating language from a federal appellate court true-threat decision, to describe and limit the type of threat covered by the statute. [Citation.] While Toledo has explained the nature of our review by enumerating the necessary elements for a criminal threats prosecution, independent review permits an appellate court to ensure that the Toledo test is satisfied and that the suppression of speech is constitutionally permissible. Therefore, we defer to the jurys credibility determinations but independently examine the entire record and exercise our independent judgment to determine whether the facts satisfy the rule of law. (Id. at p. 634.)

B. Analysis

Defendant challenges the sufficiency of the evidence to show his conduct was grave in purpose or capable of immediate execution by characterizing his threat to kill Doe as merely an emotional outburst[] during a lovers quarrel and the incoherent ravings of a drunkard. In context, he argues his words would not reasonably cause a fear of death or great bodily injury. The jury rejected his position. Our independent review of the record supports its verdict.

Section 422 requires that the threat be so unequivocal, unconditional, immediate, and specific [that it] convey . . . a gravity of purpose and an immediate prospect of execution of the threat . . . . It is clear that the nature of the threat cannot be determined only at face value. Section 422 demands that the purported threat be examined on its face and under the circumstances in which it was made. The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137.) Here, the circumstances demonstrate that it was real and genuine. Defendant said: Im going to fucking kill you. On its face, his statement was specific and unconditional. In the weeks leading up to July 15, 2007, defendant had come to Does workplace looking for her, left unwanted notes on her locker, made harassing calls to her at her family home, and, the night before his threatening call, left a torn-up picture of Doe and her baby on her front doorstep. Moreover, Doe knew of defendants long and violent criminal history. There was ample evidence that defendants phone message, on its face and under the circumstances, was sufficient to convey the requisite gravity of purpose and real and immediate threat.

The evidence of escalating harassment also supports the jurys finding that Does fear was reasonable. In addition to the above described history of harassment, defendants threatening phone call came just moments after Does family had left her alone in the apartment. Both the timing and the sound of wind Doe could hear in the background of the phone message, particularly in the context of defendants unwanted appearances at Does workplace and apartment pool, led Doe to reasonably fear that defendant was watching the apartment from a nearby pay phone. These factors, combined with Does knowledge of defendants criminal history, support the jurys findings that Doe was afraid and that her fear was reasonable.

Defendant relies on In reRicky T., supra, 87 Cal.App.4th 1132, to argue the evidence was insufficient to support the conviction. His reliance is misplaced. The juvenile defendant in Ricky T. thought that his teacher intentionally struck him with a door. He cursed and threatened to get the teacher, but did not make a specific threat. (Id. at p. 1135.) There was no evidence of any prior hostility or violence between the minor and the teacher, no evidence that a physical confrontation was imminent, and the school did not call the police until the day after the threat was made. (Id. at p. 1138.) In those circumstances the minors vague threat to get his teacher did not convey the gravity of purpose and . . . immediate prospect of execution of the threat required for a conviction under section 422. This, however, is a very different case. Defendant explicitly threatened to kill his former girlfriend. The threat came in the wake of a pattern of stalking and harassment from a defendant with a known history of violent criminal acts. Ricky T. is therefore inapposite.

II. Intoxication Instruction

Defendant contends the court erred when it instructed the jury that evidence of his intoxication bore only upon whether defendant had the requisite intent to make a criminal threat. Defendant says the instruction unduly limited the jurys consideration of the intoxication evidence, thereby lessening the Peoples burden of proof. We do not address the merits of this contention because defendant himself requested the instruction in the trial court.

A. Background

Defense counsel and the prosecutor proposed variations of a voluntary intoxication instruction. The court gave the jury the CALCRIM voluntary intoxication instruction proposed by defense counsel, as follows: You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. [] You may consider that evidence only in deciding whether the defendant acted with the specific intent that his statement be understood as a threat. [] A person is voluntarily intoxicated if sheif he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [] In connection with the charge of Penal Code section 422, the People have the burden of proving beyond a reasonable doubt that the defendant acted with the specific intent that his statement be understood as a threat. [] If the People have not met this burden, you must find the defendant not guilty of Penal Code section 422. [] You may not consider evidence of voluntary intoxication for any other purpose. (CALCRIM No. 3426.)

B. Analysis

Defendants challenge to this instruction is barred by the doctrine of invited error. The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction. (People v. Lucero (2000) 23 Cal.4th 692, 723; see People v. Hughes (2002) 27 Cal.4th 287, 345 [instructional error was invited where defendant focused solely on theory of unconsciousness to negate intent, and did not seek instruction on voluntary intoxication falling short of unconsciousness].) Here, defense counsel expressly sought the instruction that limited the jurys consideration of voluntary intoxication evidence to its bearing on specific intent. The court gave that instruction. Defendant is therefore barred from claiming the court gave the instruction in error.

Anticipating that we may conclude his requesting the instruction was invited error, defendant asserts he received ineffective legal representation. Instead of requesting the CALCRIM instruction, he argues, his attorney should have asked the court to instruct the jurors that they could consider the intoxication evidence in evaluating whether his threat caused Doe to feel fear, whether her fear was reasonable, and whether the threat conveyed an immediate sense that it would be carried out. The record does not support his argument.

A defendant who claims ineffective assistance of counsel on appeal must establish deficient performance based upon the four corners of the record. If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.  (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Here, the record is silent on counsels reason for requesting the form instruction. On the other hand, there appears a valid reason why defense counsel would not want the jury to consider his clients apparent intoxication in assessing Does reaction to the phone message. The prosecutor elicited the following testimony from Doe. Q: [Defendant] mentions, I believe, in these phone calls that hes drunk. Do you remember hearing that? [] A: I think that was on one of the first two messages. [] Q: Okay. Did that make you less afraid of him, these are just the drunk ravings of a drunk person? [] A: Exactly the opposite. [] Q: Why is that? [] A: Because hes already loony. Add a little booze, Im a dead woman. (Italics added.) Defense counsels request for the CALCRIM instruction thus might well have been a reasonable tactical decision intended to minimize the likelihood that the jury would view the intoxication evidence as making defendants threat more, rather than less, credible, frightening, and immediate.

III. Unanimity Instruction

Defendant argues it was error for the trial court to instruct the jury, pursuant to CALCRIM No. 3500, that: The People have presented evidence of more than one act to prove that the defendant committed this offense. [] You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed. Defendant contends this unanimity instruction erroneously suggested that he made multiple statements that could qualify as criminal threats, and asserts the court should instead have specifically instructed the jury that it must find the statement, Ill kill you, satisfied each element of section 422. Again, defendant has forfeited this claim.

The prosecutor asked the court to give a unanimity instruction out of a concern that some of the other messages defendant left on July 15th contained statements that in light of all the circumstances conceivably could be taken as threats in addition to the, quote, main statement in which defendant threatened to kill Doe. The court proposed to give the form instruction. Defense counsel agreed to the instruction, as did the prosecutor. His claim of error, therefore, is waived. (People v. Bolin (1998) 18 Cal.4th 297, 326.)

In light of his trial counsels concurrence in the instruction as given, defendant relies on the principle that an appellate court may ascertain whether asserted instructional error resulted in a miscarriage of justice, making it reasonably probable he would have obtained a more favorable result in the absence of the error. If so, we may reverse the conviction if error occurred despite defendants failure to object in the trial court. (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Defendant specifically claims the instruction invited the jury to improperly convict him of making a criminal threat based on the torn-up photograph left on Does doorstep on July 14, the day before his threatening phone message.[4] Assuming merely for purposes of argument that the instruction was erroneous, we are satisfied there is no reasonable probability that it affected the jurys verdict.

From the beginning of opening statements through closing arguments, the prosecutors focus was squarely on one question: whether defendants July 15, 2007, threat to kill Doe was a criminal threat under section 422. Defendant asserts, to the contrary, that in closing argument the prosecutor identified the July 14, 2007, incident with the torn photograph as yet another event that could support a conviction. His claim has some superficial resonance, but falls apart upon close inspection. The prosecutor argued: That gesture is a threat. Its a threat toward you and its a threat toward your infant as contained in that photograph. [] So not only did he intend to threaten her when he told her he was going to kill her, he started threatening her the night before when he left her that torn-up picture on her doorstep. Viewed in context, there is no likelihood the jury would have understood this comment as defendant claims. When she opened her argument, the prosecutor reminded the jury that the evidence defendant committed the charged crime was on the recording of the July 15, 2007, telephone call. She emphasized that, as the jury was instructed, the case was about an oral threat. She repeatedly identified the charged threat as defendants July 15, 2007, taped statement that Im going to kill you. It is clear, in this context, that the prosecutors discussion of the photograph left at Does door identified that event not as another potentially criminal threat, but as evidence supporting the reasonableness of Does fear when she received defendants phone message the following day. There appears no reasonable probability that the form unanimity instruction misled the jury to erroneously convict defendant on the basis of his conduct on July 14th.

IV. Sustained Fear Instruction

Defendant contends the trial court erroneously instructed the jury on the meaning of the sustained fear element required for conviction under section 422. Here too, we disagree.

CALCRIM No. 1300 sets forth the elements of a criminal threat. It instructs, inter alia, that the People must prove the alleged threat actually caused the recipient to be in sustained fear of her own safety or that of her immediate family, and it defines sustained fear as fear for a period of time that is more than momentary, fleeting, or transitory.

Defendant did not object to this definition of sustained fear. On appeal, however, he contends (for the first time) that the definition was erroneous and that it deprived him of his Fifth Amendment right to have the jury determine for itself whether any fear of Jane Does was sustained.  This challenge, too, was forfeited by defendants failure to raise it in the trial court. (See People v. Solis (2001) 90 Cal.App.4th 1002, 1014-1015 [where defendant did not request further definition of sustained, court had no sua sponte duty to define it because it is a commonly understood word and was not being used in a technical sense]; People v. Estrada (1995) 11 Cal.4th 568, 574-575.)

Defendants contention that this court should nonetheless reverse his conviction because the instruction resulted in a miscarriage of justice is no more persuasive than his foregoing argument concerning the unanimity instruction. Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claimat least to the extent of ascertaining whether the asserted error would result in prejudice if error it was. (People v. Andersen, supra, 26 Cal.App.4th at p. 1249.) No such prejudice is apparent here.[5]Defendant suggests the definition allowed the jury to convict on the basis of a fear that was more than transitory but less than sustained. But this argument ignores the manner in which the case was presented to the jury. The prosecutor argued that the 911 tape, which was played to the jury, showed unequivocally that Doe was afraid for her safety for at least the 11-minute duration of the phone call, and that Doe did not feel comfortable until she learned defendant had been arrested hours later. The prosecutors argument was amply supported by the evidence, and by the case law. (People v. Allen, supra, 33 Cal.App.4th at p. 1156 [15 minutes of fear sufficient to support finding of sustained fear].)

On the other hand, defendant never maintained at trial that Does fear was too short-lived to support a conviction under section 422. His defense, rather, was that Doe was a liar and was never frightened by his threator, if she was, that her fear was unreasonable. The juryrejected those arguments.It is not reasonably probable defendant would have been acquitted had the court instructed the jury on the definition of sustained fear differently than as prescribed in the form instruction. (See People v.Solis, supra, 90 Cal.App.4th at pp. 1014-1015.)

V. Prosecutorial Misconduct

Defendant next argues the court abused its discretion when it denied his motion for a mistrial based on alleged prosecutorial misconduct. We disagree.

A. Background

Prior to trial, the court ruled that neither Doe nor any other prosecution witnesses would be permitted to testify about an alleged incident of child abuse concerning defendant and Does baby. The court ordered all references to the incident deleted from the 911 transcripts before they were given to the jurors.

During the trial, the prosecutor called Christopher Crowe, an Amys Kitchen employee, as a rebuttal witness. When asked whether Doe told him why she was afraid of defendant, Crowe responded: Yes. She said that he had hurt her and he had hurt her baby. Defense counsel objected, and the prosecutor moved to strike the response. The trial court immediately admonished the jury: Ladies and gentlemen, this gentleman just answered a question that is improper. [] And what Im going to do at this point in time is instruct you to disregard it. Im going to strike it from the record. [] And you are not to consider it for any reason whatsoever.

Defendant moved to dismiss the case with prejudice, claiming that the prosecutor solicited Crowes answer in violation of defendants right to a fair trial and that the testimony was extremely prejudicial. The prosecutor acknowledged the gravity of what had occurred. She explained she did not intend to elicit Crowes comment about the baby and was shocked at his response to her question. The prosecutor expected Crowe to testify that Doe was afraid for her life and at her wits end, as he had when she interviewed him the previous day. She said she had only 15 minutes during a break to question Crowe because he had been in the hospital the previous day, and that he did not mention the baby during their brief interview. She admitted, however, that Crowe had previously mentioned something about defendant hurting Doe and her baby, but she mistakenly failed to tell him not to mention this when she prepared him to testify.

The trial court initially said it did not find that the prosecutor elicited Crowes response intentionally. It said: Im going to indicate for the record that I was well aware of this situation as it unfolded and in fact based upon the representations by [the prosecutor] do not find that it was intentional. By that I mean an intent to interject this statement into the testimony. I do believe that we were all surprised by the statement that was made by this witness. [] Its unfortunate that he was not aware of the Courts previous rulings on this point. However, the court stated that it would look further into defendants motion before ruling.

The court subsequently denied defendants motion for a mistrial. It explained: Ive had a chance to look at the case citations and do some research on my own, and I should indicate that, as I said earlier, I dont think that the alleged misconduct by the district attorney was intentional. [] . . . [] I have reviewed only my notes and not the testimony, and I dont think theres a pattern of misconduct on behalf of the prosecution. [] Based upon my review of the citations you gave me and others, I dont think the testimony that was given by Christopher Crowe was as injurious as you have indicated, and I think that the fact that its been stricken from the record and that the jury was immediately instructed to disregard it would cure any potential error in the trial. [] And I have drafted a jury instruction on point which we can address.

Before deliberations, the court instructed the jury as follows: During the trial, I ordered certain testimony be stricken from the record. [] All such testimony ordered stricken shall be disregarded and shall not be used for any purpose by you. The court also instructed the jury that: During the trial, I ordered certain testimony be stricken from the record. [] All such testimony ordered stricken shall be disregarded and shall not be used by you for any purpose.

B. Analysis

 The applicable federal and state standards regarding prosecutorial misconduct are well established.  A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process   [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves   the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.     (People v. Ochoa (1998) 19 Cal.4th 353, 427.)

A trial court should grant a motion for mistrial only when  a partys chances of receiving a fair trial have been irreparably damaged   [citation], that is, if it is apprised of prejudice that it judges incurable by admonition or instruction [citation]. 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.  (People v. Avila (2006) 38 Cal.4th 491, 573; People v. Williams (1997) 16 Cal.4th 153, 211-212.) We therefore review the trial courts ruling for abuse of discretion. (Avila, supra, at p. 573.)

Here, the prosecutor did not directly elicit Crowes objectionable testimony, and after his response strayed into forbidden territory she provided a plausible explanation for her inadvertent failure to warn him not to mention the topic. The court credited that explanation. It was well within the courts discretion to do so and reject defendants accusation of intentional misconduct. Moreover, the jurors were immediately admonished to disregard Crowes response, and were instructed three times that the stricken testimony could not be considered for any purpose. Without any evidence to the contrary, the presumption that the jurors followed those instructions stands unrebutted. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) We find no abuse of discretion here.

DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

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McGuiness, P.J.

_________________________

Pollak, J.

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[1] When they met defendant was working at Amys Kitchen in Santa Rosa. He left his job there in approximately March 2007, and Doe began working at Amys Kitchen in June 2007.

[2] Unless otherwise noted, all further statutory references are to the Penal Code.

[3]Although defendants opening brief also mentions that Does fear was not lasting, he makes no argument that evidence was insufficient to support a conclusion that Doe was in sustained fear for her safety.

[4] The People do not dispute defendants point that the July 14 incident does not amount to a criminal threat because, inter alia, it did not constitute a threat to commit a violent crime, was not unequivocal, unconditional, immediate and specific ( 422), and did not cause Doe to experience sustained fear.

[5] To be clear, we have not addressed and do not decide the merits of defendants attack on the definition of sustained fear in CALCRIM No. 1300which, we note, is taken almost verbatimfrom People v. Allen (1995) 33 Cal.App.4th 1149, 1156.