Opinion
E076009
04-27-2022
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY ANTHONY CONDOLUCI, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. BAF1900738 James S. Hawkins, Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I. INTRODUCTION
A jury convicted defendant and appellant Timothy Condoluci of second degree murder for stabbing and killing his brother, Michael Condoluci, and the trial court sentenced him to 16 years to life. He argues the trial court prejudicially erred by denying his motion for a mistrial, inadequately admonishing the jury about a witness's improper testimony, and failing to instruct the jury on involuntary manslaughter. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
In 2009, Michael let defendant borrow his truck. Defendant moved to Colorado with their father, William, and took Michael's truck without his permission, which upset Michael and created animosity between the brothers.
We refer to the Condolucis by their first name for clarity because of their shared last name. We mean no disrespect.
In late 2018, their mother, Barbara, learned that defendant was "struggling" in Colorado. Defendant decided to move back in with his mother in California, where Michael also was living. Barbara did not tell Michael about defendant's plans at the time because he was in "one of his moods." Barbara described Michael as a "bully" and did not like to interact with him when he was angry.
About one week before defendant moved back to California, he pulled a knife on William, but William knocked the knife out of his hand with a piece of wood. Defendant took the piece of wood, repeatedly hit William on the back with it, then put it around William's throat, threw him to the ground, and tried to choke him. William got up, took the wood away from defendant, and ended the altercation.
Michael was not happy when defendant moved back in to their mother's house. He was still upset that defendant took his truck to Colorado nearly a decade ago.
Shortly after defendant's return, the family began to struggle financially. They decided to rent out a room in Barbara's house to Michael's friend, T.B., and his three children. Around the same time, defendant decided to move in to a trailer in the backyard because Michael was taunting him, giving him dirty looks, and threatening him. Because of the animosity between them, defendant would not go in to the house if Michael was there and would leave if he came inside.
Although defendant tried to avoid Michael, they still frequently got into physical and verbal fights. Michael often yelled at defendant for not having a job and not contributing to the household. Defendant was fearful of Michael, who was two inches taller and about 60 pounds heavier.
Shortly after defendant moved into the trailer, Michael hooked it up to his truck and tried to tow it off the property. Defendant used Barbara's Jeep to try to block Michael from towing the trailer away. Michael rammed his truck in to the front of the Jeep, jumped out of his truck, and "went after" defendant.
On another occasion, Michael saw defendant and Barbara having dinner and said, "'What are you doing here?'" Defendant tried to run away, but Michael chased after him. The brothers fought, leaving defendant with injuries to his face.
In April 2019, about three months before Michael's death, Michael called the police. He reported that he was arguing with defendant about money when defendant pulled out a large hunting knife and threatened to stab Michael in the neck.
After this incident, Michael pressured Barbara to get a restraining order against defendant. In her restraining order application, Barbara recounted what Michael had told her about the incident. She described defendant as mentally unstable and unpredictable. Although Barbara received a restraining order against defendant, she decided not to serve it on defendant, but did not tell Michael about her decision.
Barbara started a new job a few months later. She took the job not only for the money, but because her sons were "driving [her] crazy" and she needed to get out of the house.
In the evening on the day after Barbara started her new job, T.B. was in the house when he heard defendant walk in. Defendant said something along the lines of "'What are you looking at?'" or "'None of your business.'" T.B. then "cussed him out" and they verbally fought until defendant went outside. In the morning, T.B. noticed a hole in the windshield of a truck he was trying to sell.
The next day, Michael told Barbara that they needed to call the police. Barbara thought to herself, "'Here we go again, '" and did not call the police because she did not want to get involved with her sons' fighting.
However, someone at the house called law enforcement. Michael informed the responding officer that he had just gotten into an argument with defendant about T.B.'s windshield, which ended when defendant stood up and held a kitchen knife "in a somewhat defensive posture." The responding deputy tried to contact defendant, but could not find him.
Later that evening, Barbara came home from work and saw Michael in the driveway. Michael was angry and said they needed to talk. When they went inside, defendant yelled at T.B.'s children something like, "'Your dad don't run the show here. I do.'" T.B. told defendant not to talk to his children. Defendant left and went to his trailer.
Michael and T.B. started talking about defendant. Michael yelled, "'F-k that shit'" and went outside, slamming the door behind him. M.B., who also lived at the house at the time, asked Barbara if he should go after Michael. Barbara said no, and to let the brothers "'just do their thing.'"
T.B. briefly followed Michael, but went back inside to get a flashlight because it was very dark outside. While doing so, T.B. heard Michael and defendant arguing. When T.B. went outside, he saw defendant shine his flashlight at a knife he was holding and show it to Michael before running away into the dark. Defendant testified that he retrieved the knife for self-defense and showed it to Michael so Michael would know that he was armed.
T.B. followed the sound of the brothers yelling until he was about 10 feet away from them. He then saw Michael holding his chest and bleeding. Michael said, "'He stabbed me. [Defendant] stabbed me.'" "'I'm bleeding bad. I don't want to die.'" T.B. did not see what had just happened, but it sounded like skin-on-skin contact, as if someone had hit another person.
Defendant immediately ran away while T.B. helped Michael go back inside, where someone called 911. Law enforcement responded and found Michael seated on the front porch bleeding profusely. Michael told one of the officers, "I'm dying." The officer asked if defendant said anything to Michael before the stabbing. Michael responded, "Said he wanted to kill me." Michael then became unresponsive.
Michael died from a stab wound to his right armpit. The wound was four to five inches deep and penetrated Michael's tendon, bicep, axillary artery, and grazed his humerus bone. The stabbing caused profuse arterial bleeding.
Defendant was charged with murdering Michael with a knife (Pen. Code, §§ 187, subd. (a); 12022, subd. (b)(1)). Defendant testified that the stabbing was unintentional and happened because he and Michael each other in the dark and Michael accidentally ran into him. Defendant admitted, however, that he ran toward Michael's direction while holding the knife outstretched.
A jury found defendant not guilty of first degree murder, but found him guilty of second degree murder. The jury also found true the knife-use enhancement (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced defendant to 15 years to life for the murder conviction, plus one year for the knife-use enhancement.
III. DISCUSSION
Michael contends the trial court prejudicially erred by denying his mistrial motion arising from William's improper testimony. He also argues the trial court failed to admonish the jury completely about William's improper testimony and failed to instruct the jury on involuntary manslaughter.
A. Mistrial Motion
1. Background
William testified that defendant sometimes struggled with drug use and homelessness when they lived in Colorado. According to William, defendant used methamphetamine and "was going to jail for meth." When asked about his fight with defendant, William said defendant was "all tweaked out" at the time, meaning that he was high on methamphetamine. William testified that just before defendant moved back to California, he told Barbara that defendant "has bad mental problems" and if she did not "get him on his medication, he's going to pull a knife on somebody."
Defense counsel requested a sidebar. The trial court granted the request, but William continued testifying unprompted. He said, "He's a good kid, Your Honor. He really is. He got messed up on drugs." Defense counsel objected and moved to strike William's comments.
The trial judge and the parties left the courtroom and had a sidebar in the hallway. Defense counsel argued that William's testimony violated the trial court's pre-trial ruling that evidence about defendant's prior arrests and criminal history was inadmissible. Counsel told the court that he did not immediately object because he "thought there would be maybe a singular outburst and it was going to stop." But when defense counsel concluded that William's "outbursts" might continue, he decided to raise the issue with the trial court.
While the parties and trial judge were in the hallway, William remained on the witness stand. He said to defendant, "'Don't worry, Son. It was self-defense. I love you.'" "'I have five years to live. I can't visit him in jail.'"
When the court and the parties returned, the court admonished William to respond only to the questions asked and to avoid volunteering information. William was excused after a brief cross-examination by defense counsel.
Shortly afterward, the courtroom deputy informed the trial court and counsel about the comments William made while they were in the hallway. After a short break, defense counsel moved for a mistrial based on William's improper testimony and comments during the sidebar. The trial court denied the motion but agreed to admonish the jury. The court indicated it would admonish the jury to disregard the statements William made during the sidebar, and to disregard testimony concerning methamphetamine use and mental health issues.
The trial court then admonished the jury as follows: "Well, I assume all of you realize that the outbursts by William [] is not evidence. It's not admissible. Those things you shouldn't consider or have it enter your decision at all. Part of your decision cannot be based on, remember, bias, sympathy, prejudice or public opinion. So to evoke sympathy is not admissible and not something you should consider. [¶] Also, speculation on the reasons for his conduct, such as self-defense or medication, things like that, are not admissible. They're not part of this trial. He's not an expert. It's just his opinion as an obviously upset father. So I don't think I have to stress it too much. We didn't know about it when we were outside of the room. It's not things that you should take into consideration or even discuss during your deliberations. It's just not part of this trial. If it was, the attorneys would bring it up. Okay. Sorry about that. [¶] Like I said, it's like a puzzle box' right? Human nature-you never know what's going to come in. Trials are dynamic. They're not scripted, and people aren't used to coming into court and abiding by the rules. [¶] There's also that instruction that you should ignore anything that you learn outside the evidence because it may not be admissible for legal reasons and the attorneys haven't had a chance to discuss it and respond to it. [¶] So anyway, can't control everybody."
Defense counsel did not object to the admonition, and the trial continued.
2. Applicable Law and Standard of Review
"In reviewing rulings on motions for mistrial, we apply the deferential abuse of discretion standard. [Citation.] '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. [Citation.]'" (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) The trial court "should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Bolden (2002) 29 Cal.4th 515, 555.)
When the trial court instructs the jury to disregard improper testimony, we review the trial court's reliance on a curative instruction instead of declaring a mistrial for an abuse of discretion. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834.) An admonition is insufficient only in "exceptional circumstances." (People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).)
3. Analysis
Defendant argues William's comments irreparably damaged his chance of receiving a fair trial. He also contends the trial court's admonition was prejudicial because the court failed to tell the jury not to consider William's testimony about defendant's drug use and contacts with law enforcement as discussed during the sidebar. In defendant's view, the trial court's incomplete admonition implicitly told the jury that it could consider that testimony, even though the court ruled it would be excluded at trial.
As to the trial court's admonition, we conclude defendant forfeited any challenge to it because defense counsel did not object. (See People v. Partida (2005) 37 Cal.4th 428, 433.) Defendant argues he may still raise the argument because the trial court had a sua sponte duty to completely admonish the jury about all of William's improper testimony as discussed at the parties' sidebar. We disagree. By failing to object, defendant forfeited any argument that the admonition was incomplete. (See People v. Edwards (2013) 57 Cal.4th 658, 702 [capital defendant forfeited argument that jury admonition about prospective juror's comment was incomplete because it did not include all agreed-upon terms]; see also People v. Dennis (1998) 17 Cal.4th 468, 514 ["If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions."].)
Defendant alternatively argues that his counsel was ineffective for failing to object to the admonition. We disagree.
To prevail on an ineffective assistance of counsel (IAC) claim, the defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; accord, People v. Johnson (2015) 60 Cal.4th 966, 979-980; see People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1148.) A "'"reasonable probability"'" is a probability sufficient to undermine confidence in the outcome of the proceeding. (People v. Mbaabu, supra, at p. 1149; Strickland v. Washington, supra, at p. 697.) The defendant bears the burden of demonstrating by a preponderance of the evidence that defense counsel's performance was deficient and it resulted in prejudice. (People v. Centeno (2014) 60 Cal.4th 659, 674.)
"[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) We will not find ineffective assistance of counsel "unless there could be no conceivable reasonable for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
As for not objecting to the admonition as incomplete, defense counsel may have had a legitimate tactical reason not to do so. Defense counsel "may well not have desired the court to emphasize" William's testimony about defendant's drug use and contacts with law enforcement. (People v. Freeman (1994) 8 Cal.4th 450, 495.) Defense counsel thus may have reasonably concluded that objecting and asking the trial court to give an additional admonition about that testimony may have been more harmful to defendant's overall defense than not objecting. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934 ["[T]he decision not to request [a limiting instruction] was a reasonable tactical choice by defense counsel to avoid directing the jury to focus on the evidence that proved the gang-related charges."].) Because defense counsel may have reasonably decided not to object to the admonition as incomplete, we reject defendant's IAC claim.
The People argue defendant also forfeited any challenge to William's testimony because he did not immediately object after William had made several improper statements and instead waited to request a sidebar. We disagree.
Despite not immediately objecting to William's challenged testimony, defendant objected shortly afterward. Not long after William made the improper statements, defense counsel requested a sidebar to discuss his concerns about William's testimony, including that it may have violated the court's pre-trial ruling excluding certain evidence. This notified the trial court of defendant's argument that William's testimony was improper and gave the court an opportunity to respond. The objection was therefore timely. (See People v. Hubbard (2020) 52 Cal.App.5th 555, 563 [objection to prosecutor's statement in closing argument made after prosecutor finished the argument was timely because it "put the court on notice that misconduct was alleged in time for the court to issue a curative instruction"].)
We conclude, however, that the trial court did not abuse its discretion in finding that defendant's right to a fair trial was not incurably damaged by William's improper testimony. Although William improperly blurted out that defendant was a "good kid," that he thought defendant acted in self-defense, and that he loved him, the trial court reasonably found that these comments may have actually helped defendant's case and thus did not warrant a mistrial.
As for William's comments about defendant's drug use and run-ins with the law, the trial court reasonably found that they did not irreparably damage defendant's right to a fair trial given all of the other evidence. Among other things, the jury heard evidence that defendant often used knives during confrontations, he armed himself with a knife immediately before stabbing Michael, he ran toward Michael while holding the knife outstretched, he stabbed Michael in the armpit with significant force, T.B. heard what sounded like someone punching someone else right before he saw Michael bleeding profusely, and that defendant's last words to Michael were that he wanted to kill Michael.
In short, the evidence of defendant's guilt was very strong. When viewed in that context, the trial court did not abuse its "considerable discretion" in finding that William's statements did not irreparably damage defendant's right to a fair trial such that a mistrial was necessary. As the People correctly note, our Supreme Court has consistently held that far more damaging improper testimony about a defendant's criminal history did not require a mistrial. (See, e.g., People v. Dalton (2019) 7 Cal.5th 166, 240 [testimony that the defendant "had molested [the witness's] children was not 'so incurably prejudicial that a new trial was required"']; People v. Johnson (2018) 6 Cal.5th 541, 581 [testimony that defendant '"had already beat two cases like this already"' did not require mistrial]; People v. Perez (2018) 4 Cal.5th 421, 459 [testimony that defendant '"just got out of the penitentiary"' did not require mistrial].)
Relying on Allen, supra, 77 Cal.App.3d 924, defendant argues a mistrial was nonetheless required. Allen does not help defendant. In that case, a witness improperly testified that the defendant was "'on parole'" at the time of the charged offense. (Id. at p. 929.) The trial court struck the testimony and directed the jury not to consider it. (Ibid.) The Allen court held that the trial court's curative instruction was insufficient, and thus a mistrial was necessary, in large part because it was "an extremely close case" that turned mostly on the credibility of the defendant and the prosecution's witnesses. (Id. at p. 935.) It was therefore reasonably probable that evidence of defendant's parole status tipped the scale in favor of the prosecution. (Ibid.)
Unlike Allen, this was not "an extremely close case." (Allen, supra, 77 Cal.App.3d at p. 935.) As explained above, the evidence of defendant's guilt was very strong. Allen therefore does not alter our conclusion that the trial court properly denied defendant's mistrial motion.
B. Instructional Error
Defendant contends the trial court improperly failed to instruct the jury on involuntary manslaughter. We conclude defendant invited the error, if any.
Defense counsel initially requested an instruction on involuntary manslaughter, reasoning that the instruction was proper based on defendant's brandishing the knife at Michael before running away. Defense counsel contended that defendant's running while carrying the knife was lawful, but criminally negligent, and thus an involuntary manslaughter instruction was appropriate.
The prosecutor argued the instruction would confuse the jury because defendant's defense was that he acted in self-defense, and involuntary manslaughter requires that the defendant did not act in self-defense. Defense counsel then agreed that an involuntary manslaughter instruction was inapplicable given defendant's claim of self-defense. When the trial court asked whether the instruction should be withdrawn, defense counsel agreed.
The People thus argue that defendant invited any error the trial court made in failing to instruct the jury on involuntary manslaughter. We agree.
"'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) Thus, "[a] party forfeits his or her right to attack error by implicitly agreeing or acquiescing at trial to the procedure objected to on appeal. [Citation.] A party who requests the court to act as it did has invited error. [Citation.]" (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1408.)
When the trial court asked if it should give an involuntary manslaughter instruction, defense counsel said no. As a result, the trial court's failure to give the instruction was, if anything, an invited error on defendant's part. (People v. Reynolds, supra, 181 Cal.App.4th at p. 1408.) He is therefore estopped from arguing the trial court erred in not giving the instruction. (See In re Jamie R. (2001) 90 Cal.App.4th 766, 772.) Defendant "may not now complain that the court did exactly what he insisted upon." (People v. Cooper (1991) 53 Cal.3d 771, 827.)
Defendant contends defense counsel only withdrew his objection to the instruction insofar as the instruction was based on his brandishing the knife. We disagree.
The prosecutor argued that the proposed involuntary manslaughter instructions would confuse the jury because one its elements was that defendant did not act in self-defense and defendant was arguing he acted in self-defense. Defense counsel immediately replied, "[b]ased on [the prosecutor's] statement in regards to the requirement for brandishing to not be done in self-defense, I would say that probably the involuntary manslaughter is not applicable just because obviously we're arguing heavily for . . . self-defense." Defense counsel therefore conceded that the involuntary manslaughter instructions "would confuse the jury if a brandishing can't happen in self-defense." The trial court asked if defense counsel was withdrawing his request for the involuntary manslaughter instructions, and he confirmed that he was. Defense counsel did not then argue that involuntary manslaughter instructions should be given based on the commission of a lawful act with criminal negligence, as he now argues on appeal. Defendant thus invited any error in the trial court's failure to instruct the jury on involuntary manslaughter.
IV. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., SLOUGH J.