Opinion
C087858
06-15-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY AKINSETE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16FE002881)
Defendant Anthony Akinsete challenges his convictions for elder and dependent adult abuse, arguing the trial court abused its discretion in denying his request for a mistrial following the introduction of improper evidence by a prosecution witness. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Given defendant's contentions on appeal, we provide only a brief recitation of the facts. Defendant operated three room and board facilities for disabled and elderly individuals. At trial, multiple witnesses testified about the extremely poor conditions in the three homes, and at least one home was described as uninhabitable. They described seeing and smelling rotting food and maggots, little to no food or other essentials such as toilet paper, unsecured medications, garbage throughout, foul smells, as well as no lock on the front door of at least one residence. Residents also said they had not been fed, given medication, or otherwise properly cared for. In addition, an individual confined to a wheelchair lived in one residence that did not have a wheelchair-accessible shower or toilet.
In July 2018, a jury found defendant guilty of six counts of elder or dependent adult abuse likely to cause great bodily harm or death. (Pen. Code, § 368, subd. (b)(1).) In August 2018, the trial court sentenced defendant to state prison for an aggregate term of seven years.
DISCUSSION
I
Defendant contends the trial court violated his Fourteenth and Sixth Amendment rights to fundamental fairness and a fair trial when it denied his request for a mistrial after a prosecution witness made an incurably prejudicial statement during testimony. We find defendant's contentions without merit.
A. Additional background
The first witness at trial was S.B., who testified that she was interviewed by defendant in 2015 for a caregiver position and toured the three homes with him. During cross-examination, defense counsel asked S.B. if she had ever returned to any of the homes. S.B. responded that she went to one of the homes a couple of days after she had toured it with defendant, since it was near her then-current workplace. She testified that she saw something written on the steps of the home that "tormented" her, but defense counsel did not ask her to specify what she had seen. During redirect, the prosecutor asked S.B. what she had seen, and she replied, "[T]he steps . . . had [defendant's] name and it said rape me." The prosecutor started to ask, "It said Akinsete," and S.B. replied, "Rape me." When the prosecutor asked, S.B. twice confirmed it said, "Rape me." Defense counsel did not object, and the prosecutor did not ask any additional questions about the issue.
During re-cross, defense counsel asked whether she reported this information to Sacramento County Adult Protective Services, and S.B. said she had. Still, S.B. testified she could not recall if she told investigators about the writing on the steps when she spoke to them in 2017. S.B. declined to look at the report to refresh her recollection. Neither defense counsel nor the prosecutor asked further questions, and S.B. was excused as a witness.
After the jurors exited the courtroom, defense counsel moved for a mistrial. She argued the evidence was not included in any of the discovery, including the investigator's report. She reasoned the evidence was "extremely inflammatory," prejudicial, and irrelevant, and she would have asked to exclude the evidence had she known about it. She continued that no admonishment from the court could cure the harm of the statement. The prosecutor disagreed, reasoning that defense counsel had asked about the issue, and that any harm could be mitigated with an admonition from the court.
The court denied defendant's motion. Although the testimony was irrelevant and "highly prejudicial and inflammatory," the court believed it could be "cured" with an instruction.
When the jury returned, the court gave the following instruction: "Ladies and gentlemen, before we call our next witness I do have an admonishment to give you and further instruction. Towards the end of the testimony of the last witness she mentioned a message that she testified that she saw on the return trip to one of the homes. I will tell you now that her testimony with respect to the substance of that message is totally irrelevant. Has nothing to do with the charges for which the defendant is accused. So I'm going to ask that you disregard her testimony in that regard. Whatever she testified to cannot enter into your deliberations in any way." The court individually asked each juror to confirm he or she understood and would follow the instruction, and each juror agreed. The trial then proceeded.
B. Analysis
A motion for mistrial should be granted " 'only when " 'a party's chances of receiving a fair trial have been irreparably damaged' " ' [citation], that is, if it 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. Avila (2006) 38 Cal.4th 491, 573.) We review a trial court's ruling on a motion for mistrial for abuse of discretion. (People v. Welch (1999) 20 Cal.4th 701, 749.)
Applying these standards, we conclude that the trial court did not abuse its discretion in denying the mistrial motion. Immediately after S.B.'s testimony, the court instructed the jury that the evidence regarding the writing was "totally irrelevant." The court further admonished that the jury should "disregard" the testimony in question and not allow it to "enter into your deliberations in any way." (See People v. Avila, supra, 38 Cal.4th at p. 574 [trial court did not abuse its discretion in denying a mistrial motion after a witness mentioned the defendant recently got out of prison, because the court admonished the jury not to consider it for any purpose].) Each juror confirmed for the court that he or she understood and would follow the instruction, and we assume the jurors did so. (See People v. Mooc (2001) 26 Cal.4th 1216, 1234.) We find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: ROBIE, Acting P. J. BUTZ, J.