IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
March 17, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BOBBY WAYNE ENDSLEY, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR083947)
The opinion of the court was delivered by: Robie ,j.
P. v. Endsley
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Bobby Wayne Endsley guilty of misdemeanor vandalism but acquitted him of felony assault with a deadly weapon, assault by means of force likely to produce great bodily injury, infliction of corporal injury on a cohabitant, and various other offenses. The trial court sentenced him to 6 months in jail and imposed 18 months of informal probation.
On appeal, defendant contends the trial court erred by denying his motion for a mistrial based on prosecutorial misconduct. The People assert that the trial court did not abuse its discretion by denying defendant's motion and further, defendant was not prejudiced. We agree with the People and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 11, 2008, an argument ensued between defendant and his live-in girlfriend, Donna Lee Koble.*fn1 Donna's son, Christopher Koble, was also present. At some point during the argument, defendant placed his hands onto Donna's shoulders. Christopher then stood up and provoked his 95-pound pit bull dog toward defendant. Defendant reacted by picking up a piece of wood and swinging it around to defend himself against the dog. As defendant swung the stick around, he knocked some plates to the ground and hit other items in the kitchen, such as pots and pans. When defendant left the apartment, he kicked a chair on the lawn. In addition, defendant broke chairs outside of the home. Donna locked defendant outside. When defendant attempted to get back inside the home, he broke the front window.
On November 30, 2009, the court decided motions in limine, including granting the prosecution's motion to exclude any "reference to punishment."
Defendant moved for a mistrial when Christopher made statements implicating defendant's prior criminal record and potential punishment in this case. During the prosecutor's direct examination of Christopher, the following exchange occurred:
"Q: Okay. And you don't think charges should be brought against Bobby Endsley in this case, do you?
"A: No, I don't.
"Q: You told me that in the hallway, didn't you?
During cross-examination, defense counsel asked Christopher, "What is your personal interest?" He answered, "I don't think he deserves to be charged with . . . 25 to life."
On redirect by the prosecution, the following exchange took place:
"Q: Who suggested to you that this was a 25 to life case?
"A: Because he is facing a third strike. I know that.
"Q: Okay. Who told you that?"
Defense counsel interrupted before Christopher answered the last question and asked to approach the bench. When redirect examination resumed, the prosecutor moved on to another topic.
Later that day, after Christopher had completed his testimony, defense counsel moved for a mistrial, arguing that the prosecutor committed misconduct. The court refused to rule on the oral motion and requested that the parties "file something."
In a written mistrial motion, defendant argued that the prosecutor committed misconduct by ignoring the in limine ruling that barred the mention of defendant's potential punishment. Further, defendant argued the jury was informed of his prior criminal history by Christopher's initial response to the prosecutor's question. Defendant asserted that this subject matter was so prejudicial that it prevented him from receiving a fair trial despite any admonition to the jury. Defense counsel further argued when the prosecutor alluded to a 25-to-life sentence the jury would perceive "that the defense is trying to hide something."
The prosecution opposed the motion and maintained that defendant suffered no prejudice. Further, the prosecutor argued the reference to a 25-to-life sentence "helps [defendant] considerably because the jury may conclude they are sending him away for a life sentence if they convict." Finally, the prosecutor asserted that the question went to exploring the witness's bias and credibility and whether defendant or Donna tampered with his testimony.
The trial court heard the motion for mistrial and denied it. The court found that the prosecutor should have advised the court he wanted to raise the questions; however, his failure to do so was not prosecutorial misconduct. The court found the prosecutor did not deliberately attempt to introduce improper material or to circumvent the court's earlier rulings. The court determined that since defense counsel "neither objected nor made a motion to strike" Christopher's initial testimony about defendant facing 25 to life, the prosecutor could have believed he was entitled to follow-up. The court reasoned that Christopher's testimony was his opinion, not a fact, and provided an explanation for "why he might have recanted or changed his testimony" at trial. The court further found that the questions asked by the prosecutor did not deny defendant the right to a fair trial. The court went on to say, "all these jurors said that they would follow the Court's instructions, whether or not they agreed with them and I believe that they will do that."
The trial court gave two instructions to the jury to address Christopher's testimony. The first advised the jury "not to discuss or consider the subject of penalty or punishment. That subject must not in any way affect your verdict." The second instruction directed the jury not to consider defendant's criminal history, and again the court warned, "[t]his subject must not in any way affect your verdict."
I Alleged Prosecutorial Misconduct
Defendant asserts that the trial court abused its discretion by denying his motion for a mistrial. Defendant states that when Christopher testified defendant was "charged with . . . [¶] . . . 25 to life" and "facing a third strike," the jury was apprised of defendant's prior criminal history and specifically that he was facing a third strike. In spite of the fact that defendant at trial did not object to Christopher making this statement, and in spite of the fact that defendant elicited the same information again on cross-examination of Christopher, he nevertheless contends on appeal that the prosecutor committed misconduct when he followed-up with Christopher on redirect. Further, defendant argues that the trial court's refusal to grant a mistrial based on the prosecutor's conduct was an abuse of discretion and a violation of defendant's constitutional rights.
"On appeal, we review the trial court's denial of a motion for mistrial under the deferential abuse of discretion standard." (People v. Maury (2003) 30 Cal.4th 342, 434.) The trial judge has considerable discretion and "his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.)
"'"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 its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."'" (People v. Harris (1994) 22 Cal.App.4th 1575, 1581, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.)
Prosecutorial misconduct may constitute an appropriate basis for a mistrial motion. (See People v. Wharton (1991) 53 Cal.3d 522, 565.) "'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's . . . 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. Navarette (2003) 30 Cal.4th 458, 506, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)
In this case, the prosecutor's two questions did not involve a pattern of egregious conduct nor the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. In any event, whether the prosecutor engaged in misconduct by asking questions that elicited answers bearing on the punishment defendant was facing in the case, the real issue is whether the testimony Christopher gave on that subject necessitated a mistrial, regardless of how that testimony was elicited.
"There is little doubt exposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial. . . . [¶] Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by . . . admonishing the jury rests in the sound discretion of the trial court." (People v. Harris, supra, 22 Cal.App.4th at pp. 1580-1581.) The question then is whether the trial court was reasonable in determining Christopher's testimony was not incurably prejudicial.
Christopher's testimony included two brief and oblique references to a potential three strikes sentence. If the jurors understood his testimony, they may have figured out that defendant had a criminal record. Christopher did not mention specific crimes; he, at best, suggested that defendant had a criminal history. Given the vague and fleeting references to defendant's prior criminal record and potential three strikes punishment, it was reasonable for the trial court to determine a jury admonition would cure any potential prejudice.
The trial court instructed the jury not to consider or discuss either defendant's potential punishment or criminal history. Defendant points to no specific evidence that suggests the jury in this case was unable to follow the trial court's admonition. Instead, defendant simply argues "the [trial] court did not consider the factual and legal impact of a limiting instruction in this case."
"Absent any evidence to the contrary, we assume the jury was able to follow the trial court's admonition and disregard the statement. Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured." (People v. Martin (1983) 150 Cal.App.3d 148, 163.)
Defendant further argues, essentially, that the presumption that juries follow instructions should not apply in cases of prior crimes evidence. Defendant relies on People v. Gibson (1976) 56 Cal.App.3d 119 for the suggestion that the prejudicial effect of prior crimes evidence cannot be overcome by giving the jury a limiting instruction. This argument is without merit. In Gibson, the information given to the jury happened to be prior crimes evidence; however, this was incidental to the volume and detail of prejudicial information the jury heard. The prior crimes evidence admitted in Gibson "establish[ed] that defendant committed prior criminal offenses against three victims: (1) a robbery involving injury to a female victim; (2) a battery against a crippled victim lying in bed; and (3) a battery against a third victim and a theft from this same victim." (Gibson, at p. 128.) This testimony portrayed the defendant as having "character traits for violence and theft." (Id. at p. 130.)
The instant case is distinguishable. Here, one witness made a few fleeting comments suggesting defendant's criminal history and potential punishment. Under these circumstances, the trial court was reasonable in deciding an admonition was not "an exercise in futility." (People v. Gibson, supra, 56 Cal.App.3d at p. 130.) The court reasonably could have concluded that any prejudice could be cured by an admonition or instruction to the jury to disregard the statements. Accordingly, we conclude the trial court did not abuse its discretion in denying defendant's mistrial motion.
II Federal Due Process
Defendant claims the admission of "the other crimes evidence in [this] case" deprived him of his federal constitutional right to due process. We disagree. To establish a federal due process violation, the defendant must, at the very least, show there were no permissible inferences the jury could have drawn from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246; People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.) Here, the jury could have inferred from Christopher's testimony that defendant was facing an undeserved sentence of 25 years to life that Christopher was biased, diminishing his credibility as a witness.
In any event, defendant's federal due process contention has no merit because the fleeting suggestion of defendant's criminal record and potential punishment were not evidence "'of such quality as necessarily prevents a fair trial.'" (People v. Albarran, supra, 149 Cal.App.4th at p. 229.) Indeed, the truth of this conclusion is shown by the fact that the jury acquitted defendant of all the felony charges against him, finding him guilty only on the misdemeanor vandalism. In light of this quite favorable result, defendant cannot complain that he did not receive a fair trial.
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J. DUARTE ,J.