Opinion
2d Crim. No. B225300
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY BROWN, Defendant and Appellant.
Wayne C. Tobin, under appointment by the Court of Appeal, for Appellant. Kamala D. Harris. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2010001777)
(Ventura County)
Mark Anthony Brown appeals his conviction, by jury, of attempted grand theft from the person of another. (Pen. Code, §§ 487, subd. (c), 664.) The trial court sentenced appellant, as a second strike offender to a total term in state prison of three years. He contends the trial court erred when it excluded from evidence the recording of the victim's 911 call, when it denied his motion for mistrial after a police officer testified that appellant was on parole at the time of his arrest, and when it failed to instruct the jury that appellant was not on parole at the time of trial. Appellant further contends he received ineffective assistance of trial counsel because counsel failed to request an instruction informing the jury that his parole status did not involve a theft-related offense. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
Facts
At about 10 p.m. on January 14, 2010, Kaylyn King was visiting a friend's house in Ventura when she received a cell phone call from her boyfriend who was then stationed in Afghanistan. King went outside to take the call. While she was talking, King walked up the sidewalk in front of the friend's house, toward the corner of Gardner and Darling Streets. Although it was dark out, the street was well lit by street lights. In addition, a motion sensitive light illuminated the driveway of the friend's house.
At the corner, King noticed appellant standing about one-half block away. Continuing her conversation, King walked back to her friend's driveway and sat down on a short wall that separates the friend's driveway from the neighbor's. She looked up the street and saw that appellant was now standing at the corner. Within a few moments, King felt her purse being pulled from her left shoulder. She heard appellant say, "hey, hey, hey," and looked up to see his face. Appellant was standing right next to her. King screamed and appellant ran off without gaining possession of her purse.
King abruptly ended her phone conversation and knocked on her friend's door to go inside. No one came to the door. She called to her cousin at 10:21 p.m. After they talked for a few minutes, King calmed down. She ended that call and again called her friend, to get back inside his house. When she got back inside, King told her friends what had happened. Then she called a family friend who is a police officer. He advised King to call 911 and report the incident. She followed his advice.
King testified that she told the 911 operator "someone had just tried to steal my purse and I just wanted to give them a description of the person who had just in case he caused any trouble in that area, I wanted them to have a description of the suspect on file." She described appellant as, "quite tall. I said he was six-two. I said that he was bald and had a mustache and that he was Hispanic and he was wearing dark clothing and carrying a back pack." King also told the dispatch officer that the person was built like a linebacker, and was wearing a gray hooded sweatshirt and dark pants that were like dress pants, not jeans. She did not describe the person as wearing a jacket.
Ventura police officer Matthew Thompson received a dispatch call concerning the incident at 10:58 p.m. Thompson soon saw a man near a liquor store, about six blocks from the site of the incident. He detained that man, but released him when he realized that the man did not fit King's description. As they were talking, Thompson saw appellant on the opposite side of the street, walking past the same liquor store. Thompson described appellant to dispatch as, "Hispanic male, six two, shaved head, mustache, black jacket or dark jacket wearing a backpack." Thompson and another Ventura police officer detained appellant within about 10 minutes after King called 911.
Officer Thompson called King and asked her to come to the scene, to determine whether they had the right person in custody. She complied. At the in-field "show up," King positively identified appellant. King testified that she recognized him immediately. When she saw appellant, she became teary eyed and she started shaking. King said she was "100 percent sure" that appellant was the person who tried to steal her purse.
A photograph taken of appellant at the time of his arrest shows that he has closely cropped, graying hair and a mustache. He was wearing a blue denim jacket with a tan collar, a dark green crew-neck shirt and dark blue jeans. Appellant was not wearing a gray hooded sweatshirt or dark dress-type pants. The backpack he was carrying was light brown or olive green, with black straps.
Appellant told the officers he had been visiting his grandmother at her nearby house. He was walking to the liquor store to buy something. Officers searched his pockets and backpack, however, and found no cash, credit cards or ATM cards. Appellant said that he left his grandmother's house at about 10:00 p.m., which would have allowed him to reach the scene of the crime by the time King said she was accosted. Appellant's grandmother confirmed that he had been visiting her that night. She further testified that, when appellant's backpack was returned to her, it contained a $20 bill, a "bundle of money," appellant's wallet, his ATM card and his "regular credit cards."
In addition to appellant's grandmother, the defense at trial called Dr. Robert Shomer as an expert witness. Dr. Shomer is a psychologist who testified concerning the weaknesses of eye witness identification testimony and the suggestive nature of single-person, in field "show up" identification procedures. He had not visited the scene of the crime or observed the nighttime lighting conditions there. Dr. Shomer agreed that he could not arrive at any conclusions concerning the accuracy of King's identification testimony.
Discussion
Recording of Victim's 911 Call
The trial court denied a defense request to admit the recording of King's 911 call into evidence. It concluded the recording was hearsay to which no exception applied and that it would be cumulative of King's live testimony, because she described the call in detail and admitted there were significant differences between her initial description of the perpetrator and appellant's physical appearance. Appellant contends the recording was relevant to impeach King's identification of appellant, because he did not match several key aspects of the description she gave to the 911 operator. He contends that the recording is not cumulative of her testimony acknowledging those discrepancies because it conveys the certainty with which she described the perpetrator. Hearing her "audible certainty," appellant contends, would have given the jury more information to use in determining the credibility and reliability of King's identification.
The trial court has wide discretion to determine the admissibility of evidence and the applicability of the hearsay rule. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) A decision to exclude evidence as inadmissible hearsay will not be overturned on appeal unless it is a manifest abuse of discretion. (People v. Milner (1988) 45 Cal.3d 227, 239.) We must affirm the judgment unless we are convinced, after a review of the entire record, that it is reasonably probable a result more favorable to the appellant would have been obtained had the evidence been admitted. (People v. Guerra, supra, 37 Cal.4th at p. 1116; People v. Watson (1956) 46 Cal.2d 818, 836.)
No abuse of discretion occurred here. As the trial court correctly determined, King's statements to the 911 dispatcher were not subject to the hearsay exception for "spontaneous statements" because King waited about 30 minutes to report the crime. (Evid. Code, § 1240.) The recording was also not admissible as a prior inconsistent statement because King acknowledged each statement she made on the recording and agreed that her verbal description of the perpetrator differed in many ways from appellant's physical appearance. (Evid. Code, §§ 770, 1235.)
Nor was it an abuse of discretion for the trial court to conclude that the recording was cumulative of King's live testimony and therefore inadmissible under Evidence Code section 352. The jury heard King acknowledge the verbal description she gave to the 911 operator and the many ways in which appellant's physical appearance and clothing differed from her description. After hearing her testimony and seeing the photograph taken of appellant at the time of his arrest, the jury found that King had accurately identified the person who attempted to steal her purse. There is no reasonable likelihood this result would have been different had the jury heard the recording of King's 911 call.
Motion for Mistrial
On cross examination, one of the arresting police officers, Brandon Conger, testified that he thoroughly searched appellant's brown backpack before handing it off to Officer Jackson. Officer Conger did not find any cash, debit cards or credit cards in the backpack. Defense counsel asked Officer Conger, "What were you looking for?" He replied, "The defendant is on parole with search terms so --[,]" and defense counsel interrupted with an objection. The trial court immediately admonished the jury, "Disregard that comment. It has nothing to do with this case. I trust you will do what a judge would do in a case like that. Absolutely ignore it. It has nothing to do with this case and I'm telling you all individually and collectively to ignore it."
Counsel later moved for a mistrial based on the officer's reference to appellant's parole status. She contended that the officer's statement may have been intended to prejudice appellant by informing the jury of his parole status. Even if the statement was inadvertent, counsel argued, the prosecutor committed misconduct by failing to inform witnesses to avoid any reference to parole. Either way, the testimony was prejudicial. According to defense counsel, "I can't unring that bell no matter how many admonishments you give the jurors to tell them not to pay attention to that. If they found out that he's on parole which at the time he was and now he's discharged I think that's fatal to my case and I want a new jury." The trial court denied the motion, concluding that the officer's statement had been inadvertent and the admonition sufficient to dispel any prejudice.
We review the denial of a motion for mistrial under the deferential abuse of discretion standard. (People v. Davis (2005) 36 Cal.4th 510, 553.) "A trial court should grant a mistrial only if the defendant will suffer prejudice that is ' " 'incurable by admonition or instruction.' " ' (People v. Lucero [2000] 23 Cal.4th [692] at p. 713; People v. Hines [(1997)] 15 Cal.4th 997 at p. 1038.) In making this assessment of incurable prejudice, a trial court has considerable discretion. (People v. Hines, supra, at p. 1038.)" (Id. at pp. 553-554.) Although a volunteered statement by a witness can, under some circumstances, provide the basis for a finding of incurable prejudice, "we do not presume that knowledge that a defendant previously has been convicted and is being retried is incurably prejudicial." (People v. Ledesma (2006) 39 Cal.4th 641, 683.)
Again, we conclude there was no abuse of discretion. The statement was very brief and the trial court immediately admonished the jury to disregard it. We presume the jury followed the trial court's admonition. Under these circumstances, the trial court did not abuse its discretion when it determined that that Officer Conger's statement was not incurably prejudicial.
People v. Allen (1978) 77 Cal.App.3d 924, relied on by appellant, is not to the contrary. There, a minor and an adult where accused of a purse snatching. Appellant offered an alibi defense and there was no physical evidence tying him to the crime. Although the victim's identification testimony was "marginal," the minor testified that appellant was his accomplice. (Id. at pp. 929-930.) In addition, the minor's mother testified that appellant's sister told her he " 'was on parole and he couldn't stand another beef.' " (Id. at p. 934.) The trial court prevented defense counsel from asking either the minor or his mother whether the minor had any other pending robbery charges or whether he had received any promises of leniency in exchange for his testimony. It also denied a motion for mistrial after the mother mentioned appellant's parole status. The court of appeal held this was error because, "An examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of the appellant and his witnesses and on the credibility of the prosecution witnesses. In the light of these facts, it is reasonable probable that a result more favorable to appellant would have been reached had the prejudicial information of appellant's parole status not been divulged to the jury." (Id. at p. 935.)
Allen, supra, is distinguishable on its facts. The appellant in Allen was not found near the crime scene or positively identified by the victim. He testified on his own behalf, presented a credible alibi defense and was erroneously prevented from impeaching the prosecution's key witnesses. The court of appeal reversed because it concluded appellant was prejudiced by both the exclusion of impeachment evidence and the reference to his parole status. (Id. at pp. 938.) Here, by contrast, appellant was arrested near the crime scene and positively identified by the victim. He did not testify or present an alibi defense and was not prevented from thoroughly cross-examining the prosecution witnesses. For all of these reasons, the case against appellant was not as "extremely close" as the one described in Allen, supra. As a consequence, the single, brief reference to his parole status was not incurably prejudicial. The trial court did not abuse its discretion when it denied appellant's motion for mistrial.
Failure to Instruct on Current Parole Status
Appellant was on parole at the time of his arrest, but had been discharged from parole by the time of trial. In light of Officer Conger's statement that appellant, "is on parole," defense counsel requested that the trial court instruct the jury that he had been discharged from parole by the time of trial. The trial court declined to do so. Appellant contends this was prejudicial error. We disagree, for the reasons stated above. The trial court's admonition that the jury disregard Conger's reference to parole was sufficient to dispel any prejudice that may have resulted from the statement. There is no reasonable likelihood that a result more favorable to appellant would have been reached had an additional admonition been given.
Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel at trial because counsel failed to request an admonition that his parole did not involve a theft-related offense. To prevail on this contention, appellant must demonstrate that trial counsel's representation fell below an objective standard of reasonableness and that the deficient representation prejudiced appellant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice exists when "there is a reasonable probability that, but for counsel's failings, the result would have been more favorable" to appellant. (Id.) On appeal, we defer to counsel's reasonable tactical choices and there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. (People v. Holt (1997) 15 Cal.4th 619. 703.) For example, counsel may make a reasonable tactical choice to forego a limiting instruction concerning a prior conviction, to avoid calling further attention to it. (People v. Hinton (2006) 37 Cal.4th 839, 878.)
Appellant has not demonstrated that trial counsel's performance was deficient or that he suffered resulting prejudice. It would have been a reasonable tactical choice to forego additional limiting instructions that might serve only to remind the jury that appellant was on parole at the time of his arrest. Second, we have already concluded that appellant was not prejudiced by the brief reference to his parole status because the trial court admonished the jury to disregard it. There is no reasonable likelihood appellant would have obtained a more favorable result had the trial court repeated or expanded upon its admonition.
Conclusion
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P.J.
COFFEE, J.
John E Dobroth, Judge
Superior Court County of Ventura
Wayne C. Tobin, under appointment by the Court of Appeal, for Appellant.
Kamala D. Harris. Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.