IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
May 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ETHAN ROBERT THOMPSON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F9123)
The opinion of the court was delivered by: Butz ,j.
P. v. Thompson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Ethan Robert Thompson of one count of criminal threats, and the trial court found, among other enhancements, that he had a prior strike conviction for first degree burglary. (Pen. Code, §§ 422; 667, subd. (a)(1); 1170.12.)*fn1 Defendant was sentenced to seven years eight months in state prison.
On appeal, defendant contends the trial court erred when it denied his motions for mistrial after victim Ronald B. (Ronald) improperly referred to defendant's parole status and mentioned that witness Katrina H. (Katrina) had been arrested. We find no reversible error and shall affirm the judgment.
On December 6, 2009, Ronald and his 10-year-old son, M.B., were at their residence in Redding. Ronald lived across the street from defendant and his girlfriend, Katrina. Just before 7:00 p.m., Katrina came running into Ronald's home after an altercation with defendant. She was crying hysterically and defendant was chasing her. Ronald stopped defendant at the door and said he was not allowed to come inside. This was a common scenario. At least seven or eight times prior, Ronald provided a "safe zone" for Katrina after physical altercations with defendant.*fn2 Before December 6, 2009, defendant never challenged Ronald's refusals to allow him inside.
On this evening, however, defendant did not back down. While standing less than an inch from Ronald's face, defendant screamed and threatened to kill Ronald and put him "in the ground." Defendant said he would burn the house down, cut him up, and make M.B. an orphan. M.B. listened to these threats from a nearby room, and Katrina crouched crying in the kitchen.
Fearing for his own safety, as well as the safety of M.B. and Katrina, Ronald called the police. Defendant continued to scream, but ultimately left the property.
Around 7:30 p.m., defendant came back and apologized to Katrina while lying on the ground crying. Katrina left with defendant, but Ronald continued to hear defendant screaming later in the night. Ronald was afraid because defendant had threatened to kill him or send someone to kill him and his son. He also explained he knew defendant frequently used methamphetamine and was worried the situation would escalate.
The next morning, Ronald dropped M.B. off at school and returned to find defendant screaming threats and obscenities from his own porch across the street. Chad Mikesell, a neighbor, overheard defendant's outburst. Mikesell described defendant as very agitated, irate, and with "veins bulging." According to Ronald, defendant threatened him by stating, "You're done," "punk bitch," and "cop caller." Ronald told defendant that "there was going to be war," which he explained as meaning he would call defendant's parole officer. He knew defendant had a violent history and a vicious, "big, burly" friend. Afraid for his and his son's life, Ronald called 911 and said he wanted defendant "violated."*fn3
After the incident, Katrina visited defendant in jail. In a recorded conversation, defendant referenced Ronald and told Katrina she needed to "get that dude," "do it like they did me," and "cry your little eyes out." He referenced letters with instructions, and told Katrina, "this is it . . . [o]ne last evil."
Defendant contends the trial court deprived him of due process and a fair trial by denying his multiple motions for mistrial after victim Ronald repeatedly violated the trial court's order prohibiting reference to defendant's parole status and Katrina's arrest for methamphetamine possession. We disagree.
I. Relevant Proceedings
The trial court ruled in limine to exclude any reference to defendant's parole status or the fact that Katrina had been arrested for possession of methamphetamine. In relation to defendant's parole status, the court explained this was "walking a bit of a fine line" because it was impossible to whitewash defendant's entire history and persona. This information was relevant to Ronald's threat perception because if Ronald "knew that . . . defendant was an abuser of methamphetamine and . . . [had an] awareness that people do strange things under [its] influence . . . , that's relevant." The prosecution instructed Ronald to not refer to defendant's parole status or his parole officer.
At trial, Ronald on direct examination related the events of December 7, 2009, when defendant called him a "punk bitch", and Ronald responded that "there was going to be war." When asked what he meant by this response, Ronald explained he was "going to go call [defendant's] parole officer."
Based on Ronald's "parole" testimony, defendant moved for a mistrial outside the jury's presence. The trial court stated that Ronald should not have referenced the parole officer, but denied defendant's motion. This testimony was not unduly prejudicial, the trial court reasoned; if the jurors were going to know that defendant frequently used methamphetamine, "how much more [did] it really add to say [Ronald] thought he was on parole?" The court told the prosecutor to re-admonish Ronald during a break in testimony to not mention parole again. The defense declined the trial court's offer to admonish the jurors, fearing a second exposure to the word "parole."
In cross-examining Ronald, defense counsel questioned Ronald's fear of defendant's "big, burly" friend. Ronald responded that defendant's parole officer had previously warned him about defendant's friends. Defense counsel immediately asked for a sidebar conference, which was held but not reported. During cross-examination Ronald also referenced Katrina's arrest, but did not mention that it was for methamphetamine possession. Defense counsel immediately asked to "reserve a motion."
At the next break, defendant renewed his motion for a mistrial "based on two additional reasons"--Ronald's reference in cross-examination to defendant's parole officer and his disclosure that Katrina was arrested. The trial court determined the reference to defendant's parole officer was not unduly prejudicial because it was elicited under cross-examination, was not gratuitous, and the jurors were already aware of the parole issue. The court concluded that mention of Katrina's arrest was not unduly prejudicial. The trial court denied defendant's second motion for a mistrial.
After the jury returned a guilty verdict, defendant moved unsuccessfully for a new trial based on the court's denial of his two motions for mistrial.
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Silva (2001) 25 Cal.4th 345, 372.)
Gratuitous testimony that a criminal defendant is on parole is improper. (People v. Stinson (1963) 214 Cal.App.2d 476, 481-482.) Here, the trial court properly excluded the parole evidence in limine, but it came in anyway. This situation is analogous to the erroneous admission of evidence, which does not require reversal unless it is reasonably probable that the appellant would have obtained a more favorable outcome had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) And, "[a]bsent fundamental unfairness," as here, the erroneous admission of evidence does not rise to a constitutional violation involving due process or fair trial. (People v. Partida (2005) 37 Cal.4th 428, 439; Estelle v. McGuire (1991) 502 U.S. 62, 67 [116 L.Ed.2d 385, 395-396].)
The trial court did not abuse its discretion in denying defendant's motions for mistrial. Here, there was convincing evidence of defendant's guilt absent the improper portions of Ronald's testimony. Three witnesses--Katrina, Mikesell, and M.B.--corroborated Ronald's version of the events. Katrina admitted she came to Ronald's house in tears after fighting with defendant, and that she felt the need to check on M.B. during defendant's outburst. Mikesell testified he heard defendant screaming at Ronald, so he came to Ronald's house to help while Ronald called the police. Finally, M.B. testified he heard defendant threaten to kill Ronald in a "mad" tone of voice, and that he was frightened for his father.
Furthermore, the jury was told defendant used and manufactured methamphetamine, and had a history of violent and erratic behavior. The jury listened to the 911 call recordings, as well as the tape of defendant trying to convince Katrina to fabricate false evidence. Even without knowledge of defendant's parole status or Katrina's arrest, the remaining evidence provided ample support for the jury's guilty verdict.
Therefore, we conclude the trial court did not abuse its discretion in finding that defendant's chances of receiving a fair trial were not "irreparably damaged" by Ronald's testimony regarding defendant's parole status and Katrina's arrest. Consequently, the trial court did not abuse its discretion in denying defendant's motions for mistrial.
The judgment is affirmed.
NICHOLSON , Acting P.J.
The trial court did not have to exclude the parole evidence since it was highly relevant. However, given the trial court action, I concur in the opinion.