Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. F05200279-8 of Fresno County, Gregory T. Fain, Judge.
Alister McAlister, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
A jury convicted appellant, Guillermo Guadalupe Paez, of being a felon in possession of ammunition (Pen Code, § 12316, subd. (b)(1)). In a separate proceeding, Paez admitted two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)). On September 7, 2006, the court sentenced Paez to an aggregate four-year term, the middle term of two years on his possession conviction, and two one-year prior prison term enhancements. On appeal, Paez contends the court abused its discretion when it denied his motion for a mistrial. We will affirm.
FACTS
The Prosecution Case
Fresno County Sheriff Deputy Robert Woodrum testified he had been a member of the sheriff’s department S.W.A.T. team the past five years, currently served on M.A.G.E.C., a gang task force, and the previous summer was on the sheriff’s boating unit. At approximately 8:00 p.m. on September 8, 2005, Woodrum and his partner, Deputy Mark Fam, parked their car down the road and walked up to a rural residence where Paez lived and saw him standing next to a shed. Paz made eye contact with Woodrum, turned away, and walked around the corner of the shed.
Woodrum and Fam went around the corner of the shed. Woodrum shouted “Sheriff’s department; stop” and detained Paez. The deputies handcuffed and searched Paez. Woodrum found a box of .32 caliber ammunition in one of Paez’s rear pants pocket and a knife in one of his other pockets. During an interview at the jail, Paez told Woodrum he had a friend buy the ammunition for him that day because he was on parole and knew he could not possess ammunition or a handgun. He planned to buy a gun of that caliber in the future to protect his family because he lived in the country “with a bunch of women.” No gun was found in the shed.
Deputy Fam testified he had worked on the S.W.A.T. team for two years and was currently assigned to M.A.G.E.C. Fam and Woodrum approached the house walking because they wanted to avoid detection and to get there before anyone had the opportunity to flee. As Fam and Woodrum walked up to the house, two patrol vehicles pulled into the driveway and two officers from M.A.G.E.C. contacted three people in a truck that was parked there.
Fam’s testimony was consistent with Deputy Woodrum including Woodrum’s account of Paez’s statements during the interview at the jail. Fam further testified that he knew who Paez was from a photograph he had seen.
The Defense Case
Paez testified his mother owned the property where he was arrested and that he lived there with his sister and brother. On that date, his 9-old-niece and his 4-year-old and 17-year-old nephews were on the property.
Paez had been at the residence approximately 10 minutes before the deputies detained him. Within five minutes after arriving, Paez went in the shop, found the ammunition on a table, and put it in his back pocket. Paez looked for a firearm in the shop but did not find one. He walked outside and saw Deputies Woodrum and Fam get out of a white car. He thought the deputies might want to speak with him because the previous day he went to “test” and his parole officer told him some officers might want to speak with him. The officers told him they wanted to speak with him and that he had a warrant for another case.
Paez told the officers he was on parole for a conviction for possession of a controlled substance and knew he was not supposed to possess ammunition or firearms. He denied telling Woodrum he intended to buy a handgun, he had a friend buy the bullets for him or that he wanted a gun because he lived in the country with females. Paez did not intend to keep the bullets. Instead he was going to notify his sister or mother and find out who the bullets belonged to and why they were left where the kids were playing. He did not leave the bullets where he found them because there were children at the house. Paez did not have time to call his mother and sister because the deputies arrived. He did not have his mother or sister pick up the ammunition because he was the male adult there, his mother and sister were in the house while the children were playing outside, and he thought it more responsible to just put them in his back pocket.
The officers took Paez downtown where Woodrum interviewed him in a booking area. Woodrum asked Paez who owned the bullets. Paez replied he found them and did not know. Woodrum asked Paez what the bullets were doing in his back pocket. Paez replied that he put them in his pocket because there were kids running around and Paez was going to find out who left the bullets there.
The Motion for a Mistrial
Deputies Woodrum and Fam arrived at Paez’s residence on September 10, 2005, to arrest him on an arrest warrant for an unrelated charge. In order not to disclose these circumstances to the jury, the following stipulations were introduced into the record during the trial: “In the lawful performance of their duties, the officers conducted a detention and search of Paez” and, “The defendant is a convicted felon having . . . been previously convicted of a felony, Health & Safety Code section 11350, possession of a controlled substance.”
After the prosecution rested, defense counsel complained that the prosecution elicited from Deputy Fam that he recognized Paez from a photo, that this was a clear indication the deputies were looking for Paez as “a wanted person” and that it violated the spirit of the stipulation that the officers conducted a lawful detention and search of Paez. Defense counsel also moved for a mistrial. Defense counsel later argued that the above statement along with the prosecutor’s assertion during opening statements that the officers were there to arrest Paez, and the testimony that other M.A.G.E.C. members were at Paez’s residence made it plain to the jury that the deputies arrived there to arrest Paez for something other than the instant charge.
After the court denied the motion for a mistrial, with the parties’ approval, the court read the jury the following limiting instructions:
“You heard testimony that the M.A.G.E.C. unit may have assisted the officers that were looking for Mr. Paez. Please disregard the nature of the unit that was seeking Mr. Paez. You’ve heard the stipulation of the attorneys in regard to the fact that this was a lawful stop and detention. I don’t want you to speculate in this area. The focus should be on the charge in this case and whether or not that charge has been proven beyond a reasonable doubt. Okay.
“Also, you’ve heard testimony about the prior felony conviction and the defendant being on parole. And there’s an instruction I want to give you in that regard as well and I’ll give it again as to how you’re to deal with this at the end of the trial. But just so you have a little clarity now and this comes from instruction 2591.
“The defendant and the People have stipulated or agreed that the defendant was previously convicted of a felony. This stipulation means you must accept this fact as proved. Do not speculate or discuss the nature of the conviction.”
DISCUSSION
Paez contends that the following references in the deputies’ testimony were irreparably prejudicial: 1) the affiliation of Deputies Fam and Woodrum to M.A.G.E.C., a gang task force unit; 2) the presence of three to five officers in addition to Deputies Woodrum and Fam at the residence; 3) Paez’s immediate detention when the deputies arrived; and 4) Paez’s statement to the deputies that he was on parole and planning to buy ammunition. According to Paez, Deputies Woodrum and Fam violated the spirit and intent of the stipulations by presenting this information to the jury. He further contends that once the intimation of another serious offense was planted in the jurors’ mind, the result completely undermined his credible explanation for possessing the ammunition. Thus, according to Paez, the court abused its discretion when it denied his motion for a mistrial. We will reject these contentions.
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “ ‘ “[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.” ’ Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953.)
First, even if the jury surmised the deputies were at Paez’s residence to arrest him on an unrelated offense, Paez was not prejudiced. “Jurors are presumed able to correlate, follow, and understand the court’s instructions. [Citation.]” (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1193.) Here, the court read to the jury an instruction specifically tailored to the defense’s concerns. This cured any possible prejudice that could have arisen. Second, none of the officers had their weapons drawn when they approached Paez, nor did they have him lay on the ground prior to approaching him. Therefore, even if the jury concluded that the deputies were there to arrest Paez on an unrelated offense, there was no reason for them to believe it was an offense more serious than the possession of ammunition offense he was being prosecuted for. Finally, the jury was informed during the prosecution case that Paez had a prior conviction for possession of a controlled substance and that he was on parole for that offense because the parties stipulated to these facts.
Moreover, Paez could not have been prejudiced because, in contrast to the strong prosecution case, Paez did not present a viable defense. Paez contended he possessed the ammunition only momentarily to give it to his mother and sister and to determine who left the ammunition where the children could get it. A defendant charged with being an ex-felon in possession of ammunition may have a defense to this charge if he found the ammunition and possessed it no longer than was necessary to deliver or transport it to a law enforcement agency for that agency to dispose of. (CALCRIM No. 2591.) Here, however, Paez admitted he possessed the ammunition for the sole purpose of protecting young children from the danger he perceived the ammunition presented to them and not for the purpose of delivering it to a law enforcement agency for disposal. (Cf. People v. Pepper (1996) 41 Cal.App.4th 1029, 1038 [possession for sole purpose of protecting a child from defendant’s perceived danger posed by a firearms presence did not justify the defendant’s possession of a firearm].)
For all these reasons, Paez failed to show he was prejudiced by the evidence he contends was improperly admitted. Accordingly, we conclude that the court did not abuse its discretion when it denied his motion for a mistrial.
DISPOSITION
The judgment is affirmed.