(Super. Ct. No. CR083947)
The opinion of the court was delivered by: Robie ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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?
"Q: You told me that in the hallway, ...