Opinion
D056836 Super. Ct. No. SCE290589
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. AWRANG ABDULAHMAD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.
A jury convicted Awrang Abdulahmad of one count of making a criminal threat in violation of Penal Code section 422 (undesignated statutory references will also be to the Penal Code). At sentencing, the court granted him three years' formal probation.
Abdulahmad appeals, contending (1) the evidence is insufficient to sustain his conviction for making a criminal threat "because the testimony was too conflicting, chaotic, and uncertain to justify a finding of any concrete specific threat"; and (2) the court erred in denying his motion for a mistrial. We affirm the judgment.
FACTUAL BACKGROUND
A. The People's Case
On May 12, 2009, Officer Manuel Sandoval of El Cajon Police Department was dispatched to an El Cajon apartment in response to a 911 call from Joseph Ziauddin, director of the East County Refugee Center (the Center). When Sandoval arrived, Ziauddin's wife, Megan Joseph, who also worked at the Center, acted as a translator for Abdulahmad's wife, the victim, because Sandoval did not speak the victim's native language. Sandoval observed the victim crying and shaking, and, through Joseph's translation, the victim told him that Abdulahmad had threatened her.
All further dates are in calendar year 2009 unless otherwise specified.
Joseph testified that on the morning of May 12 Ziauddin sent her to pick up Abdulahmad and the victim at their apartment and bring them back to the Center. When Joseph arrived, Abdulahmad was intoxicated and very upset. Abdulahmad believed the victim was having an affair with a man named Jalal and demanded that Jalal be present at the Center before he (Abdulahmad) would go there with Joseph. Abdulahmad also insisted that his meeting with Jalal at the Center be recorded with a video camera so that he would have proof that Jalal was doing something wrong. The victim was crying and afraid and said she was innocent and did not have a relationship with Jalal. After indicating he was willing to go with Joseph to the Center, Abdulahmad changed his mind and ordered the victim to stay with him. The victim said she would not go back to the apartment with Abdulahmad and stated, "[A]nything can happen to me."
Joseph also testified that she and the victim went to the Center without Abdulahmad, but they returned to the apartment at around 2:00 p.m., accompanied by her husband, Ziauddin, because she felt she and the victim would not be safe without him there. When Ziauddin, Joseph, and the victim arrived back at the apartment, they saw Abdulahmad on the sofa. Abdulahmad stood up and, while holding the wall, became very loud and upset. Joseph testified he smelled of alcohol, his eyes were red, and she believed he was more intoxicated than he had been in the morning. Abdulahmad explained to Ziauddin why he was upset and mentioned an affair between his wife and Jalal. Eventually, Abdulahmad ordered Ziauddin and Joseph to leave the apartment, and loudly said to Ziauddin: "This is my home. This is my law, my rules, my home, my family, my wife. I kill, I cut, I do anything. I don't want you to be here, so get out from this place." Joseph and the victim were about five or six feet away. Joseph also heard Abdulahmad say to Ziauddin, "I will kill Jalal. I will kill [the victim], and I will kill you."
The victim testified that when she heard Abdulahmad make those threats, she was very afraid, cried, and said she was innocent and did not have a relationship with Jalal. The victim followed Ziauddin and Joseph out the door. When they were outside, Ziauddin called the police, who arrived about 10 minutes later.
When other police officers arrived to assist Officer Sandoval, they went into the apartment. According to Sandoval, Abdulahmad had alcohol on his breath, he was very aggressive and unsteady on his feet, and he yelled at the officers. When they arrested Abdulahmad, he again loudly threatened to kill the victim and also threatened to kill Joseph.
The victim, through Joseph, told Officer Sandoval she was very afraid of Abdulahmad and wanted something to be done. The victim also stated she feared for her life. Sandoval asked the victim to write a statement about what was going on, which she did in her native language; Joseph did not help her write the statement. In her written statement, which was translated into English by a court-certified translator and admitted into evidence as People's exhibit No. 1 (exhibit No. 1) without objection, the victim detailed Abdulahmad's threat:
"Three days ago had drunk alcoholic [beverages] and wanted to attack me with a knife. I took the knives and left the apartment. Presently, the knife is at the neighbor's house. Drinks alcohol limitless. Starts drinking from the morning until midnight. I want to raise my four children, not to be killed and my children to be left without destiny (good future). And my children are extremely afraid of their father and hate their father[.] I want to live with my children in peace. I emphatically ask you to guarantee (safeguard) my life and that of my children.
"I am afraid that once he has drunk a lot, he [might] destroy me or my children[.] And he took the knife and wanted to attack me[.] I left the house at once and left the knives at the neighbor's house.
"My life is very bad and I ask you to guarantee (safeguard) my life and that of my children.
"Today, he said[:] nobody can change me[;] my law [rules] at my home and I will do whatever I want[.] And he said[:] I will cut you into pieces with knife."
Officer Sandoval testified that when he questioned Abdulahmad's oldest son, the son stated Abdulahmad drank a lot and hit his mother "all the time." At trial, the then 10-year-old son recanted and said he did not tell Sandoval that his father hit his mother "all the time." He did admit telling the officer that his father drank alcohol. He stated he loved his father and did not want his father to get in trouble.
A neighbor testified that on May 10 the victim came to her apartment sad and crying, saying the words "my husband," and gave her about 15 knives, while making a slashing motion across her throat from left to right with her right index finger.
The victim testified she and Abdulahmad had been married in Afghanistan over 13 years. They had four children whose ages ranged from four to 10 years. They had moved to the apartment in El Cajon in December 2008, about five months before Abdulahmad's arrest in this case. At trial, the victim recanted her previous statements and stated that Abdulahmad was only "a little drunk" on May 10. She denied Abdulahmad had been drinking vodka all morning that day, and she denied she found him holding a knife in the kitchen that day. She also testified Abdulahmad did not raise a knife over his head to attack her. The victim also stated that she took the knives to her neighbor "because [her] husband ha[d] drunk some . . . alcohol, and [she] did not want him to hurt himself, and he had heart problems, and he had to stop alcohol." She denied taking the knives out of the apartment because she was afraid after he tried to attack her. She denied telling Lisa Ogle, an investigator with the district attorney's office, that the next day, May 11, Abdulahmad drank all day, shouted and cursed at her the entire day, and she was scared. The victim also denied telling Ogle that on May 12 Abdulahmad had begun drinking very early, as was his custom.
The victim also testified she went to Joseph's office at 10:00 or 10:30 a.m. on May 12, and Abdulahmad stayed at home. She denied that before she arrived, Abdulahmad told her he was really going to kill her that day, threatening to cut her up in little pieces, because she was a woman. She also denied he had been violent with her in the past or that she had told Ogle he had been violent with her in the past. She stated she only went to Joseph's office that day because Joseph asked her to, not because she was afraid for her safety if she stayed at home. She also denied crying and being scared.
The victim testified Abdulahmad had been drinking when she, Joseph, and Ziauddin returned to the apartment at 2:00 p.m. on May 12. Abdulahmad told Joseph and Ziauddin, "Do not interfere in our lives. You have problems in your own marital lives. You can't solve your own problems. How can you solve our problems? And if we have any problems, we, ourselves, will go to the court." The victim denied that Abdulahmad, in the presence of Joseph and Ziauddin, accused her of having a romantic relationship with someone named Jalal. She denied that Abdulahmad, in the presence of Joseph and Ziauddin (People's exhibit No. 1), threatened to kill her and Jalal. When shown the statement she had written to the contrary, the victim claimed Joseph had helped her to write the statement and told her what to write, stating Joseph "took me to her office, she said, 'This is what you need to write when the police arrive.' " The victim testified she only wrote, "My life is very bad and I request to you to help me and my kids," "by order of" Joseph.
The victim denied telling Officer Sandoval she was afraid of Abdulahmad and feared for her life, and she denied she was afraid of her husband or feared for her life. She stated she loved Abdulahmad, who paid the bills and supported her and her children. When asked whether she needed him financially, she replied, "We need him in every sense." She also indicated she did not want him to "get in any kind of trouble." She referred to Joseph as an "instigator" who would "provoke" her "against [her] husband."
B. The Defense Case
Ziauddin testified for the defense. Abdulahmad and the victim were referred to the Center when it was reported Abdulahmad was abusing her and the children because he was "drink[ing] too much." Abdulahmad accused the victim of having a relationship with another man. As Ziauddin did not speak their language, he relied on his wife, Joseph, to act as a translator.
Ziauddin spoke with Abdulahmad on May 11 at Abdulahmad's apartment regarding the complaint about Abdulahmad's excessive drinking. Abdulahmad brought up his suspicions that his wife was unfaithful. During the meeting, Ziauddin did not threaten his wife and was very polite. Abdulahmad and the victim had had an argument, and Ziauddin told Abdulahmad, "Now you are upset. I can't talk to you. Come tomorrow with your wife to my office."
The next day, when the victim, her two younger children, and Joseph came to the Center without Abdulahmad, they reported he was drunk and insisting that two other people, including Jalal with whom Abdulahmad believed was having an affair, should be there at the Center with a camera and a tape recorder to record everything. Ziauddin told the victim to wait until the afternoon and he would join them to go back to the apartment. Ziauddin testified his wife translated, and the victim did not report to him any threats made by Abdulahmad against her.
Ziauddin also testified that when they returned to the apartment, with Joseph translating, Abdulahmad began to be aggressive when Ziauddin asked why he was making accusations against the victim and said Abdulahmad was scaring her and the children. Abdulahmad said, "This is my home, my law, my home, [these] are my children, my wife, my law in this house. I drink today. I drink tomorrow. No one has the right to interfere in my life." Abdulahmad did say, "I cut, I do, no one has a right to interfere." Ziauddin eventually called 911 when Abdulahmad "started to disrespect everyone" and said, "This is my home. This is my law. Today, tomorrow, next week. I kill my wife, my children. I kill them. I kill. No one has the right to interfere in my home." Ziauddin testified he called the police for the safety of Abdulahmad and his family because Abdulahmad was "so intoxicated." Ziauddin, who did not speak to a police officer, heard Joseph tell the police that Abdulahmad was telling her, "I will kill you, and I will kill Joseph." Ziauddin acknowledged that about two months after the incident, he was arrested as a result of a domestic incident involving his wife and the charges against him were still pending.
On cross-examination, Ziauddin testified "it's painful" when a man accuses his wife of having an affair, and in "their country" a man who can prove his wife is having an affair has the right to kill her.
Abdulahmad testified in his own defense. Abdulahmad stated he tried not to drink in the presence of his children and on May 12 he had one or two glasses of vodka after 12:00 or 12:30 p.m., after the victim and the children left the apartment. He did not finish the bottle that day. When the victim and children returned with Ziauddin and Joseph, he became upset and "respectfully asked" Ziauddin and Joseph "not to intervene into my family." Abdulahmad testified he did not threaten to kill anybody, he did not intend to harm anyone, and he wanted to "resolve the issue on a friendly basis." He also testified he "may have said things that [he did not] remember." He did not remember making any statements that might be deemed as threatening to kill his wife or Joseph that day.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE (§ 422 )
Abdulahmad contends the evidence is insufficient to sustain his conviction of making a criminal threat in violation of section 422 "because the testimony was too conflicting, chaotic, and uncertain to justify a finding of any concrete threat." We conclude his conviction is supported by substantial evidence.
A. Applicable Legal Principles
1. Section 422
To prove a violation of section 422, the prosecution was required to establish: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
Section 422 provides in part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison."
The reviewing court looks to all the surrounding circumstances to determine whether there was substantial evidence to prove the elements of making a criminal threat. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340.) In determining whether words constitute a threat within the meaning of the statute, the focus is not on the precise words uttered but rather on the effect of the words on the victim. (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1158.)
2. Standard of review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
The uncorroborated testimony of a single witness is sufficient to sustain a conviction or true finding on an enhancement allegation, "unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
B. Analysis
Here, the record contains substantial evidence satisfying each of the five elements of section 422 discussed in Toledo, supra, 26 Cal.4th at pages 227-228. First, the prosecution presented ample evidence from which a reasonable jury could find beyond a reasonable doubt that on May 12 Abdulahmad willfully threatened to commit a crime that would result in death or great bodily injury to his wife. (See ibid.)Specifically, Joseph testified that when she, Ziauddin, and the victim returned to the apartment in the afternoon that day, she heard Abdulahmad loudly and angrily say to her husband, Ziauddin: "I will kill [the victim], and I will kill you." Joseph also testified that, when the police arrived, Abdulahmad loudly repeated, in English and in the victim's presence, "I kill [the victim]." Although he was a defense witness, Ziauddin testified he called 911 when Abdulahmad aggressively said, "I kill my wife, my children. I kill them. I kill. No one has the right to interfere in my home." Officer Sandoval testified that, when he arrived at the apartment in response to Ziauddin's 911 call, he observed the victim crying and shaking, and, through Joseph's translation, the victim told him Abdulahmad had threatened her.
Abdulahmad urges this court to disregard the foregoing incriminating testimony, claiming it is "too conflicting, chaotic, and uncertain to justify a finding of any concrete specific threat." In support of this claim, he challenges the credibility of the witnesses. For example, he points to the fact that the victim at trial recanted her earlier alleged statements that Abdulahmad had threatened to kill her and had been violent with her, and he asserts there was "an unavoidable doubt created by the translation of threats, by a woman [(Joseph)] with a personal agenda to combat domestic violence of which she herself had been the victim" and who was "a very biased witness."
The record indeed shows that key witnesses gave testimony that conflicted with evidence of prior incriminating statements the prosecution argued they made. However, under well-established principles governing the applicable substantial evidence standard of appellate review, if (as is the case here) the verdict is supported by substantial evidence, we "must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, supra, 51 Cal.3d at p. 314.) " 'Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.' " (People v. Ochoa, supra, 6 Cal.4th at p. 1206, quoting People v. Jones, supra, 51 Cal.3d at p. 314.) Thus, here, we will not reevaluate the credibility of the victim, Joseph, Ziauddin, and the prosecution's other witnesses.
In any event, the prosecution presented evidence that the victim and her son had a motive to falsely recant their out-of-court statements. Specifically, when asked whether Abdulahmad paid the family's bills and supported her and her children, the victim replied, "Yes." When asked whether she financially needed him, she stated, "We need him in every sense." The prosecutor also asked the victim, "So you don't want him to get in any kind of trouble; is that correct?" She answered, "Correct." The prosecutor similarly asked the victim's son, "[Y]ou don't want your dad to get in trouble, right?" The son replied, "No."
The jury also heard testimony from both Joseph and her husband, Ziauddin, indicating Ziauddin, who testified for the defense, had a motive to suggest Joseph, who testified for the prosecution, was not truthful. Specifically, Joseph testified she had twice filed for a restraining order against Ziauddin, who was arrested on domestic violence charges based on statements she had made. Ziauddin testified he was arrested in early July, about two months after the May 12 criminal threat incident, the arrest stemmed from a domestic violence incident between himself and Joseph, domestic violence charges were filed against him, and those charges were still pending at the time of trial in this case.
Furthermore, as noted, the uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Scott, supra, 21 Cal.3d at p. 296.) Here, Joseph's and Ziauddin's testimony showing Abdulahmad threatened to kill the victim was neither physically impossible nor inherently improbable. Substantial evidence supports the jury's finding that Abdulahmad willfully threatened the victim with "death or great bodily injury" as required by the first element of section 422.
The prosecution also presented substantial evidence from which a reasonable jury could infer beyond a reasonable doubt that Abdulahmad made his willful criminal threat " 'with the specific intent that the statement . . . be taken as a threat, even if there [was] no intent of actually carrying it out,' " as required by the second element of section 422. (Toledo, supra, 26 Cal.4th at pp. 227-228.) The jury considered exhibit No. 1, the victim's written and translated statement in which she stated Abdulahmad told her, "I will cut you into pieces with knife." The jury credited the testimony of Joseph and Ziauddin that Abdulahmad threatened the victim by aggressively and loudly stating he would kill her. That express threat of violence evinces on its face a specific intent that the victim interpret and take it as such, even if Abdulahmad, who was intoxicated when he made the threat, had no intent of actually carrying it out. The evidence is sufficient to sustain the jury's specific intent finding.
The prosecution's evidence is also sufficient to support the jury's finding that Abdulahmad's threat to kill the victim was, " 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' " as required by the third element of section 422. (See Toledo, supra, 26 Cal.4th at p. 228.) At trial, one of Abdulahmad and the victim's neighbors, Sanchez, testified that on May 10—just two days before Abdulahmad made the criminal threat at issue here—the victim came over to her apartment sad and crying, saying the words "my husband," and gave Sanchez about 15 knives while making a slashing motion across her throat from left to right with her right index finger. This testimony was corroborated by Joseph's testimony that the victim told Investigator Ogle that (1) on May 10 she (the victim) went into the kitchen and found Abdulahmad with a knife in his hand; (2) when she asked Abdulahmad what he was doing, he said, "I will do whatever I want," which she took as a threat; and (3) she took all of the knives and gave them to the neighbors. Ogle provided additional corroborating testimony regarding the May 10 knife incident, stating the victim told her she found Abdulahmad holding a knife in the kitchen. The victim asked him, "What are you going to do with the knife?" and he answered something to the effect, "None of your business, I will do what I want," and, "I was born one day, and I will die one day," which, according to the victim, was a clear threat in their culture. The victim felt so threatened she gathered up the knives and took them to her next-door neighbor for safekeeping. We conclude the foregoing testimony constitutes substantial evidence from which a reasonable jury could find beyond a reasonable doubt that Abdulahmad's May 12 threat to kill the victim just two days after the May 10 knife incident was "so unequivocal, unconditional, immediate, and specific as to convey to [the victim] a gravity of purpose and an immediate prospect of execution of the threat," as required by the third element of section 422.
Ample substantial evidence also supports the jury's findings both that Abdulahmad's May 12 threat to kill the victim actually caused her " 'to be in sustained fear for . . . her own safety or for . . . her immediate family's safety,' " and that her sustained fear was reasonable under the circumstances, as required by the fourth and fifth elements of section 422. (See Toledo, supra, 26 Cal.4th at p. 228.) Officer Sandoval testified that, when he questioned Abdulahmad's oldest son, the son told him Abdulahmad drank a lot and hit his mother "all the time." Sandoval also testified that when he arrived at the apartment on May 12, he observed the victim crying and shaking, and she told him, through Joseph's translation, that Abdulahmad had threatened her. Joseph testified the victim was scared, crying, and shaking when she (Joseph) arrived at the apartment earlier that morning. Joseph also testified that, in the afternoon, the victim was crying and very afraid when Abdulahmad threatened to kill her.
The foregoing evidence is sufficient to support Abdulahmad's conviction of making a criminal threat in violation of section 422. Accordingly, we affirm his conviction.
II
DENIAL OF MOTION FOR MISTRIAL
Abdulahmad also claims the court erred in denying his motion for a mistrial. This claim is based on Abdulahmad's assertion that the court was required to declare a mistrial because it found the prosecution's "star witness," Joseph, improperly spoke twice to Officer Sandoval, another prosecution witness, during the trial, and, on one of those occasions, "shar[ed] her distress" about defense attacks on her credibility. Abdulahmad's claim is unavailing.
A. Background
On November 12, after the prosecution's last witness (Officer Sandoval) testified and the People rested, defense counsel brought the following to the court's attention:
"[DEFENSE COUNSEL]: And lastly, I have a situation, another situation, that I had no control over. [¶] According to [Abdulahmad's] oldest son, who testified here, he witnessed [Joseph] come out of the courtroom, according to him, in sort of tears, upset, walks out of the courtroom, talks for more than 15 minutes to Officer—I believe it's Officer Sandoval. But at this point, I am not 100 percent sure whether he is referring to Officer Sandoval. And in the course of that conversation, she is pointing to [Abdulahmad's] wife, and the kid is walking around the hallway.
"THE COURT: Who is pointing to the wife?
"[DEFENSE COUNSEL]: [Joseph], while she is talking to the police officer. [¶] And this was approximately more than 15 minutes, according to the nine-year-old. And that in the course of the conversation, [Joseph] hands to Officer Sandoval, several pieces of papers which are typed. And Officer Sandoval takes it, and that's basically what transpired during the course of their conversation. [¶] This was, of course, immediately after [Joseph] was advised by this court, not to discuss this case with anybody, her testimony.
"THE COURT: This report was made to you by the nine- or ten-year-old boy?
"[DEFENSE COUNSEL]: Yes.
"THE COURT: And he told you that he witnessed a 15-minute conversation and pages were handed over to [Officer] Sandoval?
"[DEFENSE COUNSEL]: Yes, and he is outside.
"THE COURT: The young boy?
"[DEFENSE COUNSEL]: Yes."
When asked by the court, defense counsel indicated it had not been reported to him that any jurors were present during the conversation between Joseph and Officer Sandoval. The prosecutor interjected that Sandoval had been on call that day and had come running to testify and was not in the courthouse until he arrived to testify. The prosecutor then stated:
"After [Officer Sandoval] testified, he was the last witness, they were talking outside at the table outside the cafeteria. When I came out of the courtroom, they were both there. And if I believe what I heard, they were talking about [Joseph's] case. They were not talking about this case."
The prosecutor added that the only thing in Joseph's hands was her purse, and Officer Sandoval "had his police report." The court asked, "Do either of you intend to call [Joseph] as a witness in this case from this point forward?" Defense counsel replied, "I was not intending to," and the prosecutor indicated she might call Joseph as a rebuttal witness. The record shows, however, that the prosecutor called no rebuttal witnesses.
1. Court's findings and ruling
After Ziauddin testified for the defense, the court conducted a hearing outside the presence of the jury to examine the witnesses (Abdulahmad's son, Joseph, and Officer Sandoval) regarding the discussion between Sandoval and Joseph. After examining the witnesses, the court made the following findings:
"I think it's been established that [Officer Sandoval and Joseph] may have had two conversations, one in the morning on either Monday[] or Tuesday[], and one after—late afternoon on Tuesday.
"Clearly, the one that occurred outside the courthouse late on Tuesday, occurred at a time when both [Joseph] and Officer Sandoval had concluded all testimony in this case. [] They never testified again after that, I don't believe either of them. Wednesday was a holiday. On Thursday, they didn't testify.
"I don't see any possible issue of any tainted testimony occurring as a result of any conversation that occurred on Tuesday afternoon after they had both finished testifying, even though they were both on call, they could have been recalled as witnesses, but they were not. So if there was a violation, it's a violation without any issues attached to it.
"Now, [Joseph] testified she had a short conversation with Officer Sandoval in the hallway near the elevators. Officer Sandoval ultimately recalled that conversation as well. He does not know if it happened on Monday morning or Tuesday morning. He was standing with other officers. He does not remember the length of the conversation nor the subject matter. And it probably occurred prior to [Joseph's] testimony. I don't know that either one of them had yet appeared as witnesses in this case at the time of that conversation. It may have been at the first trial call. It was first called on
Monday.[] It might have been on . . . Tuesday. But neither one of them testified that they talked about this case, or anything having to do with it."
Monday, November 9, was the day the court ruled on in limine motions and commenced the trial. Joseph and Officer Sandoval testified the next day.
On Tuesday, November 10, the prosecution presented its case-in-chief and rested.
The court's November 10 minutes indicate that Joseph, who was the prosecution's first witness, testified in the morning, Officer Sandoval commenced his testimony at 3:49 p.m., and the People rested at 4:20 p.m. at the conclusion of Sandoval's testimony.
The court's minutes show that Monday, November 9, was the trial call.
--------
The court concluded that it "ha[d] heard no evidence and ha[d] no evidence to suggest anybody's testimony was improperly tainted or affected by any conversation[] that Joseph and [Officer] Sandoval may have had." The court denied the defense motion for a mistrial.
B. Applicable Legal Principles
We review a trial court's denial of a mistrial motion for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).) A trial court should grant a mistrial motion only when a party's chances of receiving a fair trial have been irreparably damaged, that is, when the court is " 'apprised of prejudice that it judges incurable by admonition or instruction.' " (Ibid.) " '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.' " (Ibid.)
C. Analysis
We conclude Abdulahmad has not met his burden of showing the court abused its broad discretion by denying his request for a mistrial because he has not shown Joseph's two conversations with Officer Sandoval prejudiced him by irreparably damaging his defense. (See Avila, supra, 38 Cal.4th at p. 573.) The testimony adduced at the hearing on Abdulahmad's mistrial motion shows that Joseph had two conversations with Sandoval at the courthouse during the trial in this matter. The court examined both Joseph and Sandoval and found it "ha[d] heard no evidence and ha[d] no evidence to suggest anybody's testimony was improperly tainted or affected by any conversation[] that Joseph and [Sandoval] may have had." The record of the mistrial motion proceedings supports the court's finding. When the court asked Joseph the subject matter of the first conversation, which took place in the morning inside the courthouse, she testified it was "[m]ostly about what was going on in [her] own life" and they did not discuss "any details about this case" or "anything about what [was] going on in the courtroom." Sandoval testified he did not recall what they discussed.
With respect to the second conversation, the court asked Joseph, "[D]id you talk to Officer Sandoval about anything that happened in the courtroom about your testimony?" Joseph answered, "No, because I know it's against the law." She indicated she talked to him about her life and what was going on with her relationship with her husband. The court also asked Sandoval what he and Joseph talked about during that second conversation. Sandoval stated "[s]he said she was upset at the defense attorney because he was trying to attack her credibility, bringing in her other case that is a pending case of some sort that's open with her and her husband." Sandoval also indicated that when the prosecutor arrived, she (the prosecutor) "seemed a little upset at [him]" because his testimony "was kind of rushed," and Joseph "kept talking to [the prosecutor] about, I believe, her case as well, and that was pretty much it."
Although the foregoing record shows that Joseph improperly discussed with Officer Sandoval defense counsel's attempt that day to attack her credibility, Abdulahmad has not, and cannot, show this portion of the conversation prejudicially affected the testimony of any witness or somehow irreparably damaged his defense, as he is required to do to prevail on his claim the court abused its discretion by denying his mistrial motion. (See Avila, supra, 38 Cal.4th at p. 573.) As noted, the record shows the second conversation between Joseph and Sandoval occurred after they had both testified for the prosecution and after the People had rested.
With respect to defense counsel's allegation that, according to Abdulahmad's oldest son, Joseph handed several pieces of typewritten paper to Officer Sandoval during her first conversation with Sandoval, Joseph testified she did not give any documents to Sandoval during her first conversation with him. The court asked Sandoval, "Do you recall [Joseph], during that conversation, or at any other conversation, ever handing you documents or a rolled up set of documents for some reason?" Sandoval replied, "No."
We conclude Abdulahmad has failed to meet his burden of showing the court prejudicially abused its discretion by denying his mistrial motion. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.