Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA354909, Sam Ohta, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Jose Aldana appeals from the judgment entered following a jury trial in which he was convicted of five counts of second degree robbery, two counts of home invasion robbery, two counts of false imprisonment by violence, two counts of assault with a firearm, and one count each of first degree burglary and misdemeanor sexual battery. Firearm enhancement allegations were found true with respect to most of the charges. Defendant contends the trial court erred by informing the jury that he had escaped during trial. We affirm.
BACKGROUND
Defendant, codefendant Winder Barrios, and a third man committed four robberies in the Hollywood area between about 9:30 and 10:00 p.m. on March 26, 2009. (All further unspecified date references are to 2009.) Each victim was alone in a parked car when a black pickup truck pulled alongside the victim’s car. Two men emerged from the truck, one pointed a shotgun at each victim, and they demanded money. Each victim handed over one or more items to the men. Three of the four victims (Jerry Baxter, Julio Licon, and Kate T.) identified defendant and Barrios at trial as the robbers. Baxter testified that the robbers’ truck was a Nissan, and victims Dane Woodward, Baxter, and Licon testified that the black truck had a paper license plate that said “Miller” and appeared to be the same truck in which defendant and Barrios were riding when arrested. Kate T. dropped her mobile phone when startled by the robbers. Barrios opened the door of Kate T.’s car, and defendant began searching near her feet. He took her mobile phone and GPS system and put his hand up her skirt and groped her. Kate T. identified as hers a GPS system recovered from the black truck in which defendant and Barrios were arrested.
On the morning of March 27, defendant, Barrios, and a third man went to the gated Encino home of Robert Smith. Smith’s 19-year-old daughter Jenna and the family’s housekeeper, Olga Carpio, were in the house. Carpio opened the gate for the men, who stated over the intercom that they were the gardeners. A black truck drove in, and few minutes later, defendant and Barrios appeared outside the glass entry door, which Carpio was cleaning. Defendant pointed a shotgun at Carpio’s stomach and demanded that she open the door. After she did, they forced her back to the kitchen, where they taped her to a chair and covered her eyes with masking tape. A little later, Jenna awoke and entered the kitchen. She saw Carpio taped to a chair and a man standing behind Carpio pointing a “rifle” at Carpio’s head. Jenna ran, but the men chased her, threw her down, and carried her to the kitchen, where they taped her to a chair and taped her eyes nearly shut. Jenna felt the barrel of the gun pressed against her cheek and heard the men moving around quickly. After she heard the front door close and no longer heard the men in the house, she phoned her father and 911. The men had ransacked the house and taken two large flatscreen televisions and two laptop computers. Smith identified as his two laptops recovered from Barrios’s apartment.
The Smith’s real gardener arrived the same morning and saw a black Nissan Frontier pickup truck with a paper dealer plate that said “Miller” parked near the house with televisions in the truck bed. The truck in which defendant and Barrios were arrested looked like the truck the gardener saw. Security camera footage from the home of one of Smith’s neighbors showed a black Nissan truck driving toward the Smith house with an apparently empty bed, then driving in the opposite direction about 30 minutes later with what appeared to be big screen televisions in the bed.
About 9:00 p.m. on March 30, defendant robbed Wesley Swafford as she sat in her parked car in the Hollywood area. A silver Escalade pulled up next to Swafford’s car, defendant got out of the passenger side, pointed a shotgun at Swafford’s face and demanded that she give him “everything.” She handed over her purse, car keys, and phone. Swafford identified as hers a phone recovered on the rear floorboard of a silver Escalade registered to Barrios.
Defendant and Barrios were arrested in the Hollywood area on the night of April 2 in the black Nissan truck with “Miller” plates. The police found Kate T.’s GPS system, a loaded shotgun, and additional shotgun shells inside the truck. Over the course of two interviews, defendant admitted committing the five robberies in the Hollywood area and the home invasion robberies, burglary, and false imprisonments at the Smith home. He further admitted that he put his hand up Kate T.’s skirt. He admitted carrying the shotgun at the Smith house, but denied pointing the shotgun at any person at any time. A videotape of defendant’s second interview was played at trial. The prosecution also introduced a surreptitiously recorded video of defendant and Barrios conversing in a holding cell. Barrios urged that defendant “[o]nly accept four” robberies “[a]nd no more.”
Defendant and Barrios were tried by separate juries. Defendant offered no evidence in defense. Defendant’s jury convicted him of five counts of second degree robbery, two counts of home invasion robbery, two counts of false imprisonment by violence, two counts of assault with a firearm, and one count each of first degree burglary and misdemeanor sexual battery. Various firearm enhancement allegations were found true for every offense except the assault with a firearm of Jenna Smith and the sexual battery of Kate T., as to which no firearm enhancements were alleged. The court sentenced defendant to prison for 28 years 6 months.
DISCUSSION
On the fourth day of trial, a representative of the Los Angeles County Sheriff’s Department informed the trial court that defendant and Barrios had escaped from custody. Jailers realized they were missing at 3:00 a.m. and began searching the Pitchess facility, grounds, and surrounding area for them. The sheriff’s department had already put out news releases, including photographs of defendant and Barrios, and had asked for the public’s help in locating them. The trial court found defendant and Barrios had escaped from custody and exercised its authority, pursuant to Penal Code section 1043, subdivision (b), to proceed with the trial in their absence.
The trial court told counsel that it had decided to inform the juries of the escape: “The information concerning the defendants’ escape is now out in the news media, their names have been revealed. I do not believe this information can be contained. Most people already know that this escape has happened. [¶] So it seems to me that not revealing that fact would be ineffectual, that they will indeed find out sooner or later. And if they find out in the trial process, that itself can lead to misuse of that information.” The court went through its proposed admonition to jurors with all counsel, who requested no changes. Defendant’s attorney argued that the evidence was insufficient to find that defendant was voluntarily absent and suggested defendant might have been coerced into escaping by Barrios. The court rejected this argument.
When the court brought defendant’s jury into the courtroom, the court explained the situation: “I just spoke to [Barrios’s] jury about this issue, and I’m now going to talk to you about it. [¶] You see in the courtroom that neither of the defendants are here. The fact that the defendants are not here does not alter the rules that relate to the trial process. [¶] Each defendant is still entitled to the presumption of innocence. Each defendant still retains their right not to be compelled to testify. The burden of proof still rests with the prosecution, and the standard of proof remains beyond a reasonable doubt. [¶] A fair trial depends upon the jurors’ ability and competence to follow these rules. [¶] Now, why am I telling you this? I’m telling you this because it has come to my attention that the defendants have escaped from jail. Now, this is on the local news and on the Internet. Basically, if you turn on the T.V., they are talking about it right now, so there is no way for me to have kept this from you. So I’m letting you know that. Now, their escape, if that is a fact, is not evidence of guilt. [¶] Remember I said at the beginning of this trial process the evidence has to be presented in the courtroom. So that isn’t a fact to be presented in the courtroom and to be used by the jurors in this trial.”
The court continued, “Now, the jury again cannot use that fact against the defendant as evidence of guilt in this case. It cannot become a subject of discussion during deliberations. So once the jury begins to deliberate, you cannot talk about this, you cannot be discussing about this purported escape as any tendency of evidence to prove guilt against either of the defendants. [¶] It cannot be used as evidence to establish any of the elements of the charged offenses against them. Each juror must be able to abide by these rules. So the integrity and fairness of the jury trial process requires each juror to strictly adhere to these rules that I am now enunciating. Each juror must be able to set this fact aside and not use it as evidence of guilt against either of the defendants. [¶] And to the extent that it is within your control, each juror must not read, listen to, or watch any news reports about this purported escape. [¶] Now, as I said, it’s on the Internet, it’s on the local channel news, it’s going to be one of the topics of discussion today when you go home. And again, what I’m saying to you now is you cannot read or watch or listen to it. I’m not saying don’t watch the news. But if you’re watching the news and this story comes up, you have to turn it off or leave the room. You cannot be curious about it and continue to listen to it. [¶] Now, during the day, will this thought come into your awareness? I suppose it will. And will you be curious about it? I suppose you will, but you cannot use it as evidence of guilt against either Mr. Barrios or [defendant].”
The court continued, “Again, it is not evidence being presented in the courtroom by the district attorney to prove that they are guilty of these crimes. Your job is to limit your analysis to the evidence presented in the trial process. And if you’re able to do so, listen and collect that information that you receive in the trial, and discuss only that which is presented in the courtroom in deciding whether the prosecution has met their burden of proving guilt in each of the counts alleged against the defendant. [¶] So for you, that would be the case against [defendant]. You just take the evidence and decide whether the prosecution has met its burden of proof. You cannot use the fact that they might have escaped from jail as any evidence against [defendant]. [¶] Is that clear with everybody? Okay.”
The court then inquired of each juror, including the alternates, whether he or she understood the admonition and would be able to follow it. Every juror answered both questions affirmatively.
Defendant’s attorney then unsuccessfully sought a mistrial.
The next day, defendant and Barrios were both present for trial. The trial court explained the circumstances and re-admonished defendant’s jury: “Okay. So, ladies and gentlemen, yesterday I had a discussion with you. I gave an admonishment to you and I indicated to you by starting the conversation in this manner: ‘You see in the courtroom that neither of the defendants were here.’ That is what I said yesterday. Well, the flip is true now. You now see that both defendants are back in the courtroom. [¶] Now, I also spoke to you about the admonishment, which was that the defendants are entitled to the presumption of innocence, that each defendant retained the right to remain silent, not to be compelled to testify, the burden of proof is on the prosecution, and that the standard of proof was beyond a reasonable doubt. I indicated that to you. [¶] I also talked to you about the fact that the purported escape of the defendants was not evidence in the case and is not to be used by you as evidence against either of the defendants in determining their guilt or innocence; and then I also asked you, to the extent that it was possible, to not listen to, watch, or read any news accounts of the alleged purported escape. [¶] I then asked you whether or not you understood that. You all indicated to me that you understood it. And then I asked you can you follow it, and you indicated that you can. None of that has changed; so whether the defendants are in the courtroom, whether the defendants are not in the courtroom, that is irrelevant. The standard of proof remains the same. You cannot use the purported escape as evidence against them, and you must give them a fair trial. [¶] Do all of you understand that?” All of defendant’s jurors responded affirmatively, and no juror indicated he or she would be unable to follow the admonition.
Defendant challenges the denial of his motion for a mistrial on the ground that the “trial court erred by informing the jury that [he] had escaped from custody because this evidence was highly inflammatory and prejudicial and had not been established by evidence presented to the trier of fact.” Defendant concedes that he had, in fact, escaped from custody during trial. He argues the jury would inevitably consider his escape as evidence of consciousness of guilt. Defendant does not challenge the trial court’s decision to proceed with the trial during his absence.
The trial court should grant a mistrial 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.’” (People v. Collins (2010) 49 Cal.4th 175, 198, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369–370.) We review the denial of a motion for mistrial for abuse of discretion. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.)
Defendant argues that de novo review is required because “[i]t was undisputed that the trial court informed the jury” that he had escaped. He cites as his sole authority People v. Jones (2007) 157 Cal.App.4th 1373, 1380, footnote 5, a case citing the usual standard of de novo review of a trial court’s interpretation of a statute. The issue on appeal does not pertain to the interpretation of a statute. In most cases, the occurrence giving rise to a motion for mistrial is undisputed, but the undisputed nature of the occurrence has nothing to do with the appropriate standard of review, which is abuse of discretion.
We initially note that defendant’s two arguments are inherently contradictory: he contends both that the jury should not have been told of his escape and that a determination that he had escaped should have been made “through competent evidence presented before the jury.” But seeking such a determination would have focused the jury’s attention on the escape information by directing them to determine whether he had escaped. Defendant’s rationale for arguing that the jury should have made a finding on whether he escaped is that the escape was a matter that would be used in determining his guilt. Yet the trial court did not instruct upon consciousness of guilt as shown by the escape or any other act, and the prosecutor did not argue consciousness of guilt upon any factual theory. The court prohibited the jury from considering the escape at all, and repeatedly told the jury that the escape was not evidence and could not be considered in determining defendant’s guilt.
Penal Code section 1043, subdivision (e)(4) allows the trial court to “[p]roceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held.” Here, the trial court made such a finding, as permitted, and was faced with having to explain to the jury defendant’s absence in the midst of trial. Rather than allowing the jury to speculate, the trial court explained that defendant had escaped—a fact conceded on appeal—and admonished the jury not to consider the escape in determining defendant’s guilt.
We conclude that the trial court did not abuse its discretion by determining that the jury should be informed of defendant’s escape, given the sheriff’s decision to publicize it. Although the trial court had already told the jury to disregard any news stories pertaining to the trial in this case, the jury might well have inadvertently heard or viewed news stories regarding the escape, without realizing—until too late—that the story related to the trial on which they were serving as jurors. The trial court’s conclusion that “not revealing that fact would be ineffectual, that they will indeed find out sooner or later” appears to have been well-founded and was not arbitrary, capricious, or patently absurd. Similarly, the court’s decision to inform and admonish the jury to attempt to prevent them from (1) inadvertently being exposed to news coverage of the escape and (2) considering the escape as evidence of defendant’s guilt was not an abuse of discretion. It appears that the escape was a major news story, and it may have involved additional inflammatory information about defendants, as indicated by statements made by Barrios’s attorney the next day, citing statements in the news regarding defendants’ immigration status.
The court also repeatedly told the jury that the escape could not be considered at all, much less considered as evidence of guilt. The court reminded the jury of its instructions that the jury could only base its verdicts upon evidence presented in court, and repeatedly told the jury that the escape was not evidence in the case and could not to be used as evidence against defendant to determine guilt or innocence. The court also reminded the jury that it should not only ignore any news reports or discussion about the escape, but also should not discuss the escape during deliberations. We presume that the jury followed the court’s instructions (People v. Williams (2010) 49 Cal.4th 405, 469), and here the trial court’s individual inquiries to the jurors regarding their ability to follow the admonition provided additional reason to believe that jurors obeyed the admonition.
The court’s second admonition, after defendant’s return to court, reminded the jurors that they could not “use the purported escape as evidence against them, and you must give them a fair trial.” The jurors agreed they understood the court’s admonition, which we also presume they followed.
Finally, defendant brought this on himself by escaping. (People v. Concepcion (2008) 45 Cal.4th 77, 84.)
Even if we were to conclude that the trial court abused its discretion, we would find no prejudice, even applying the more stringent standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]. The evidence against defendant with respect to every count was extremely strong. He was identified by three of the four March 26 robbery victims, and the fourth identified the truck in which he was arrested, which also happened to contain the GPS system stolen from Kate T. that night. Carpio identified defendant as one of the home invasion robbers, and Swafford identified him in the March 30 robbery. In addition, defendant essentially confessed to all of the charged crimes, although he attempted to minimize his use of a firearm. And the behavior of defendant’s jury indicates that it had not concluded that the escape demonstrated defendant’s guilt: it asked the court three questions, requested that certain testimony be reread, and deliberated for about four and one-half hours over the course of two days. It thus appears beyond a reasonable doubt that informing the jury of defendant’s escape did not contribute to the jury’s verdict.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., CHANEY, J.