Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 29965, Ronald W. Hansen, Judge.
James F. Johnson, 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, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On March 2, 2006, a felony complaint was filed in the Superior Court of Merced County charging appellant Albert Angelo Campos with count I, felony evading arrest (Veh. Code, § 2800.2, subd. (a)); count II, misdemeanor hit and run driving (Veh. Code, § 20002, subd. (a)); count III, misdemeanor resisting arrest (Pen. Code, § 148); and count IV, misdemeanor possession of an instrument with “burglarious” intent (Pen. Code, § 466). Appellant pleaded not guilty.
On May 16, 2006, appellant pleaded no contest to count IV. Thereafter, his jury trial began. On May 18, 2006, appellant was convicted of counts I, II, and III.
On June 29, 2006, appellant was sentenced as to count I for the midterm of two years, with a consecutive term of 90 days for count IV, and concurrent terms of 90 days for counts II and III. The court granted the prosecution’s motion to dismiss another pending case, No. 29974, since appellant received a prison term in this case.
On July 6, 2006, appellant filed a timely notice of appeal.
FACTS
Appellant was a parolee assigned to the caseload of Parole Agent Ron Keeler. As of January 3, 2006, appellant was a missing parolee. On that day, Detective John Fister of the Merced Police Department received a note that appellant was living at a particular address on Cameron Lane in Merced. Fister was aware that appellant was a missing parolee.
Around 4:00 p.m., Detective Fister drove to the residential area near that address, and another officer advised him that appellant had been seen at that residence, entering a white vehicle. Detective Fister and other officers parked in separate cars on Bear Creek Drive, a street just off Cameron Lane. Cameron Lane is a dead end street which leads to an elementary school and playground area.
As Detective Fister waited, appellant arrived in the area driving a car which was headed toward Bear Creek Drive. Appellant stopped at the corner of Cameron and Bear Creek, and Fister believed appellant was about to turn right on Bear Creek. Fister pulled his unmarked car diagonally into the street to block the forward path of appellant’s car, and activated the red signal light located directly behind the rear view mirror on the front windshield of his car.
Officer Jeffrey Horn was also waiting in the area. Horn was in uniform and driving a marked police car with signal lights. When appellant’s car arrived, Horn activated the overhead flashing signal lights on his squad car, and pulled his squad car in front of appellant’s car at an angle to block his path.
Detective Fister emerged from his unmarked vehicle, walked in front of appellant’s car, pulled his weapon, pointed his weapon at appellant and his passenger, and ordered appellant to turn off the car and show his hands. Detective Fister was in plain clothes and not in uniform, but he was wearing a Navy blue bullet-proof vest. The vest displayed his badge on the front left side, and the word “police” in letters two inches high and six inches long on the front right side. Fister testified he looked directly at appellant and his passenger as he displayed his weapon and ordered appellant out of the car.
Detective Fister testified appellant extended his middle finger and “flipped me off,” smiled, and immediately backed up his vehicle. Appellant drove in reverse at a fast speed toward his residence, but he crossed into the opposite side of the street, backed into a deep drainage gutter on the shoulder, hit and knocked down a metal mailbox, drove over the mailbox, and the left rear tire deflated. The mailbox had been affixed to a steel pole embedded in cement, and the entire chunk of cement was pulled out of the ground when appellant drove over the mailbox.
Officer Horn testified that as appellant backed up, Horn activated the siren on his marked squad car and pulled directly in front of appellant’s car, “nose to nose.” Horn testified appellant accelerated and drove backwards at approximately 40 miles per hours in a 25 miles per hour residential zone. Appellant did not look behind him as he drove in reverse, and instead maintained eye contact with Officer Horn the entire time as his car crossed to the other side of the street, seemed to turn, backed into the drainage gutter, ran down the mailbox, and slid to a stop in the driveway of another house. Appellant drove about 100 feet in reverse at a high rate of speed.
Appellant got out of the car and ran around the west side of his residence. Detective Fister returned to his own car and tried to drive parallel to appellant’s path. Officer Horn and two other officers pursued appellant on foot and repeatedly yelled at him “to stop, it was the police.”
Officer Arthur Court was about three to four car lengths behind appellant’s car when appellant began to drive in reverse. Court immediately activated the siren and flashing lights on his marked police car. After appellant crashed into the mailbox and ran away, Officer Court remained in his patrol car and tried to follow the foot pursuit, then emerged from his car and ran after appellant. Officer Court repeatedly yelled “‘police’” and for appellant to stop. Court testified appellant ran “at a dead sprint” and “as fast as he could.”
Officer Horn testified appellant ran alongside a structure and jumped over a four-foot fence into a residential backyard. Appellant fell down and Horn caught up to him, but stayed outside the fence. Horn, who was in uniform, produced his Taser, ordered appellant to stay down, and said, “‘police, don’t move. You move you’re going to be tazed.’” Horn was about six feet from appellant. Appellant looked directly at Horn, got up, and again ran away. Horn fired the Taser but it malfunctioned and did not hit appellant. Other officers jumped the fence and continued the chase, while Horn remained outside the fence, ran ahead of them, and tried to get in front of appellant’s route. Appellant was eventually detained by the officers.
Defense Evidence
Appellant did not testify. Wally Broughton, a defense investigator, testified the distance between the mailbox and the location where appellant started to drive in reverse was 129 feet. Broughton determined the distance between the mailbox and the location where appellant stopped his car was no more than 20 feet. Broughton did not see any posted speed limit signs on Cameron. Broughton testified the speed limit in an unposted county residential area was 35 miles per hour, while the limit in an unposted city residential area was 25 miles per hours.
Deputy Horn, recalled as a defense witness, testified the officers did not use any electronic speed detection instruments to determine appellant’s actual rate of speed as he drove in reverse. Horn determined the speed of appellant’s vehicle simply based on his own observations, training, and experience.
Appellant pleaded no contest to count IV, misdemeanor possession of an instrument with “burglarious” intent, and was subsequently convicted by a jury of count I, felony evading arrest; count II, misdemeanor hit and run driving; and count III, misdemeanor resisting arrest. On appeal, he contends the court improperly permitted the prosecution witnesses to refer to his status as a parolee, and that the court should have granted a mistrial and dismissed the entire jury pool based on statements made by two members of the venire who did not serve on the jury.
DISCUSSION
I.
ADMISSIBILITY OF APPELLANT’S PAROLE STATUS
Appellant contends the court abused its discretion when it allowed the prosecution witnesses to testify that appellant was on parole and was a missing parolee at the time of the incident, and the admission of this evidence violated his state and federal due process rights to a fair trial.
A. Background
On May 16, 2006, the court conducted voir dire for the entire day, and the jurors were selected, sworn, and excused around 6:00 p.m. After the jury left the courtroom, defense counsel complained that during voir dire, the prosecutor disclosed that Agent Keeler was with the parole agency.
As we will discuss in section II, post, appellant moved for a mistrial because a prospective juror stated he knew appellant because he was a prison guard. The court heard argument on May 16 and 17, 2006, and denied appellant’s motion for mistrial.
On May 17, 2006, appellant filed two motions in limine in open court, to exclude, among other things, evidence that the gang suppression unit contacted the police and requested assistance to apprehend appellant, a parolee at large; any mention that appellant was on parole or a parolee at large; any mention that Agent Keeler was a parole officer or agent, or assigned to supervise appellant; that appellant had a no-bail, parolee at large warrant and a second felony warrant; and that appellant had been previously arrested or the reasons for those arrests.
Also on May 17, 2006, the court heard argument on appellant’s motions in limine. The court asked the prosecutor whether gang evidence was going to be introduced. The prosecutor replied no, and the court agreed gang evidence was irrelevant and could not be mentioned. As for appellant’s parole status, the court found it was “very relevant” to “motive and intent for flight.” The court heard further argument from defense counsel, and stated it would allow the prosecutor to introduce evidence of appellant’s parole status.
“… I’m just going to say it’s relevant to the issue of intent, motive, and that would let the prosecution bring it in its case in chief. It’s been represented the [appellant fled] because he didn’t recognize one of the officers, saw a gun pulled, he was going to get the heck out of there. That has to do with issue of mistake and it would be relevant on a rebuttal basis to the issue of absence and mistake. But it comes in the case in chief because it’s relevant to the issue of intent which is an element of the offense. It’s also motive which is kind of interrelated.”
Defense counsel replied that appellant’s parole status was inadmissible character evidence that he had been convicted of a felony and sent to prison, and the evidence was “incredibly prejudicial.” The court stated the key element was specific intent. Defense counsel replied intent was just one element and the prosecution had the burden of proving the other elements. The court disagreed and found the evidence of his parole status “very probative as to why he would not want to have contact with any law enforcement officer.”
Defense counsel conceded there was “some logical relevancy” as to the reason for appellant fleeing, but it was “barely logically relevant in one way, not logically relevant at all in many others and is of such prejudicial value as character evidence” it should be excluded. In the alternative, defense counsel offered to stipulate that the police officers were “lawfully situated” when they “pulled up in front of” appellant’s car. The court asked the prosecutor whether he would accept such a stipulation. The prosecutor declined because the charged offense of felony evading required proof of appellant’s specific intent, so that appellant’s “status as a parolee and parolee at large at the time shows what his intent was.” The prosecutor argued appellant’s parole status was also relevant to the misdemeanor violation of section 148, as to absence of mistake.
The court disagreed as to the violation of section 148, but found appellant’s parole status was “key” to the specific intent element of felony evading, and was very probative. However, the court excluded any evidence of appellant’s underlying felony. The prosecutor replied that he only intended to introduce evidence that appellant was a parolee at large.
Defense counsel objected to the phrase “parolee at large” as “devastating.” The court replied: “That’s what makes it relevant. It doesn’t show propensity to commit the crime, it shows why he’s running or possible reason why he’s running.” The court suggested “non-reporting parolee,” but the prosecutor replied the phrase had to show he was wanted by parole, “that it was more than just we want to make an inquiry. We want to talk to you. It has to show his intent was to evade.” The court agreed. Defense counsel suggested the explanation that the police were lawfully present and within their rights to speak to appellant. The court replied, “No, it doesn’t satisfy the true picture.”
The court requested an offer of proof from Parole Agent Ron Keeler. Agent Keeler was sworn and stated appellant’s status on January 3, 2006, was as a “missing parolee” and an active warrant was issued. The court asked why appellant was wanted. Agent Keeler explained he had information that appellant allegedly threatened to kill someone and presented a firearm or replica.
The court instructed Agent Keeler not to mention the circumstances surrounding appellant’s prior offenses. The court held the witnesses could say appellant was a “‘missing parolee’” instead of “a parolee at large,” but could not mention the reasons the officers were looking for him because “that goes too far.” The court also excluded any reference to the involvement of the gang suppression unit.
“[THE PROSECUTOR]: As far as I know, they were there for being a missing parolee.
“THE COURT: That’s the limit.”
The court again clarified the witnesses could not mention appellant’s alleged gang affiliations or his prior arrests, they could say he was a missing parolee, there was a warrant out for his arrest, and they wanted to talk to him, but not the reason for the warrant. The court noted the defense theory was that appellant saw someone pull a gun and he took off, and the evidence was necessary to explain why the officer drew his gun. The court again stated appellant’s parole status was highly relative and the probative value was significant because “it explains why they were wanting to detain” appellant.
The court obtained an offer of proof from Detective Fister, who was sworn and testified he drew his gun on appellant, even before appellant drove in reverse, because appellant was a wanted felon. The court stated Fister could testify he received a report from another officer that appellant, a missing parolee with an outstanding warrant, was in the area. The court also stated that Fister could not mention the gang suppression unit conducted surveillance on appellant, but that Fister received information on appellant’s whereabouts and sent an officer “out there just to watch.” Fister could say he pulled his weapon because it was his standard practice “in dealing with missing felons subject to outstanding warrants.” The court stated:
“That’s it. That’s as about sanitized a picture we can get and still keep everything relevant without creating inferences of missing information, which could be more damaging.”
After the court completed the motions, defense counsel complained these issues caught him by surprise and the court’s ruling on appellant’s parole status should have been made prior to jury selection so he could have discussed it with the prospective jurors, and requested a few minutes to explore these issues with the jury. The prosecutor objected that appellant’s counsel failed to request the court to consider the evidentiary motions prior to jury selection. The court agreed.
“THE COURT: Okay. The Court feels that the jury selection process was fair. I’m not sure I fully accept the defense’s representation that this issue was—they were caught by surprise by this issue. It would seem to be very material to the case, so the motions in limine—some amended motion in limine was filed this morning. And the second motion was just filed this morning. So it was only after jury selection last night that someone mentioned a[n] [Evidence Code section] 402 issue. And it was after the jury was selected that the—I inquired [pursuant to section 402] to find out what it’s about. And it triggered your memorandum this morning and I believe your motion in limine Number 2 ....”
As set forth ante, Agent Keeler testified before the jury appellant was on parole and a missing parolee. Detective Fister testified he knew appellant was “a missing parolee or wanted missing parolee.” Fister testified that several other officers joined him on Bear Creek Drive as they waited for appellant, including Officers Horn and Court, and two other parole officers.
When the prosecutor called Officer Horn, he was to identify himself and where he worked. Horn testified he was employed by the Merced Police Department, “Gang Violence Suppression Unit.” Defense counsel did not object. Horn further testified he was asked by Detective Fister to assist him in detaining appellant.
After the prosecution rested, defense counsel made a motion for mistrial because appellant’s parole status was inadmissible character evidence, based on People v. Stinson (1963) 214 Cal.App.2d 476 (Stinson), but conceded Stinson was an old case.
As we will discuss post, Stinson held an officer’s inappropriate reference to the defendant’s parole status did not warrant reversal where “the trial court promptly instructed the jury to disregard the offending information,” and there was not a reasonable probability the reference affected the verdict. (Stinson, supra, 214 Cal.App.2d at p. 482.)
The court denied appellant’s mistrial motion and made a lengthy ruling.
“The Court’s admission or sanitization of the events by allowing the evidence that [appellant] was a missing parolee, that’s all the jury has heard, they haven’t heard about any outstanding warrants. All they heard he was a missing parolee. Is to assure that the jury gets a fair picture of the events of January 3rd and not a distorted picture or prejudicial picture.
“And without that information what the defense would like to present to this jury is the picture that [appellant] is stopped at a stop sign and all of a sudden there is a convergence of a detective, a patrol officer who blocked his advancement, two law enforcement vehicles converged and blocked his advancement. One officer jumps out of the car and pulls his weapon and points it at [appellant]. The other officer has no opportunity to get out of the vehicle before he flees. Another officer is going down Bear Creek, makes a U-turn and returns to the scene, so we have this convergence. And what the defense would like to paint the picture is that [appellant] is there and what you offered was that it was a lawful stop. And that paints the picture that the defense wants which the Court feels is distorted and unfair picture that would give rise to the argument that he would have been justified in seeing this when he sees plain clothes men jump out of a car and point a gun at him, that he put it in reverse and backed out of the way and speed [sic] away. And that would create a distorted picture in the Court’s mind and I expressed that to you. And for that reason I allowed the evidence of his missing parole status in evidence.
“The other thing I note is I don’t even know if his status is subject to [an Evidence Code section] 1101(B) I’m giving you the benefit of the doubt that it is. Because in a sense it’s character evidence. In this case it’s the very basic reason there is more to it that the jury hasn’t heard as to why these officers are there and trying to capture [appellant]. I’m not even sure it’s [Evidence Code section] 1101(B) but I give you the benefit of the doubt that it should be subject to that scrutiny, because it does create an inference of some type of character evidence.”
The court modified CALCRIM No. 375 to instruct the jury that it could only consider this evidence for a very limited purpose. Defense counsel objected that character evidence would result in the jury convicting appellant “because they think he may be disposed to commit to be bad,” and the court should have simply advised the jury that the officers’ stop and contact were legal. Defense counsel argued the admission of the parole evidence violated appellant’s state and federal due process rights. The court replied it had balanced appellant’s constitutional rights with “maintain[ing] a fair picture of the events in the interest of justice.”
Defense counsel next objected to a prosecution witness referring to surveillance by the gang suppression unit. Counsel conceded the prosecutor did not expect that answer, and the prosecutor insisted he was very careful not to use those words. The court could not remember the reference and decided to review the transcript.
After the defense rested, the court stated it reviewed the record and found Officer Horn mentioned his current assignment with the gang enforcement unit, defense counsel moved for mistrial during the following recess, and the court denied the motion at that time.
The court instructed the jury pursuant to CALCRIM No. 375:
“Evidence was received that the defendant was a missing parolee. You may, but are not required to, consider this evidence for the limited purpose of deciding whether or not:
“The defendant acted with the intent to evade a peace officer as charged in Count 1 or the lesser offense thereto; or
“The defendant had a motive to commit the offenses alleged in this case; or
“The defendant’s alleged actions were not the result of mistake or accident.
“Do not consider this evidence for any other purpose.
“The evidence that the defendant was a missing parolee is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the offenses involved in this case. The People must still prove each element of every charge beyond a reasonable doubt.”
B. Analysis
On appeal, appellant renews the arguments made below, that the court abused its discretion when it admitted evidence of appellant’s status on parole, and such evidence was irrelevant and prejudicial and violated his state and federal due process rights to a fair trial.
Appellant herein was charged in count I with a felony violation of Vehicle Code section 2800.2, subdivision (a), which provides in pertinent part:
“If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year.”
Vehicle Code section 2800.1 provides in pertinent part: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursing peace officer’s motor vehicle, is guilty of a misdemeanor ....” (Veh. Code, § 2800.1, subd. (a), italics added.) If the peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp; the peace officer’s motor vehicle is sounding a siren as may be reasonably necessary; the peace officer’s motor vehicle is distinctively marked; the peace officer’s motor vehicle is operated by a peace officer wearing a distinctive uniform. (People v. Hudson (2006) 38 Cal.4th 1002, 1007-1008.) The prosecution herein thus had the burden of proving appellant willfully fled or otherwise attempted to elude a pursuing officer with the intent to evade.
Character evidence is not admissible to show conduct on a specific occasion, or evidence of criminal disposition or propensity. (Evid. Code, § 1101, subd. (a); People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter).) This rule of exclusion, however, is qualified by Evidence Code section 1101, subdivision (b), which provides that evidence of uncharged crimes is admissible when relevant to prove motive, intent, preparation, plan, knowledge or identity. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402, fn. 6 (Ewoldt); Carter, supra, 36 Cal.4th at p. 1147.) Even if the evidence is admissible pursuant to Evidence Code section 1101, the court must also consider whether its probative value is outweighed by the potential prejudice under Evidence Code section 352. (Ewoldt, supra, 7 Cal.4th at p. 404.)
A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse. (People v. Alvarez (1996) 14 Cal.4th 155, 201; Carter, supra, 36 Cal.4th at p. 1147.) Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10; People v. Jones (1998) 17 Cal.4th 279, 304.)
“There is little doubt exposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial. [Citations.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) Such evidence can create “a possible tendency on the part of some jurors to convict a defendant not on proof that he committed the offense but because he has a criminal past.” (Stinson, supra, 214 Cal.App.2d at p. 480.)
Evidence that a defendant is on parole is admissible, however, if relevant and not unduly prejudicial under Evidence Code section 352. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1020, fn. 2; People v. Powell (1974) 40 Cal.App.3d 107, 155; People v. Durham (1969) 70 Cal.2d 171, 188-189.) “Service of a prison term is highly probative to show a motive to flee apprehension for the current crime, i.e., to avoid service of future additional prison time. [Citations.]” (Scheer, supra, 68 Cal.App.4th at p. 1020, fn. 2.)
As applicable to the instant case, the court did not abuse its discretion when it permitted the prosecution witnesses to testify about appellant’s parole status. Appellant tried to raise the defense that he attempted to flee because he was confronted by an unknown man in plainclothes who brandished a gun at him. However, the evidence of appellant’s parole status was relevant to show his motive and intent in backing up his car in a willful and wanton disregard for the safety of others when confronted by the officers who blocked the forward path of his vehicle.
Moreover, the admission of this evidence was not prejudicial under Evidence Code section 352. “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging.’” (People v. Yu (1983) 143 Cal.App.3d 358, 377; People v. Bolin (1998) 18 Cal.4th 297, 320.) As set forth ante, the trial court carefully examined the entirety of the circumstances and excluded evidence of appellant’s prior offenses, the reason that appellant was a wanted parolee, and that his current offenses involved gang activities. While Officer Horn mentioned he was employed by the Merced Police Department, “Gang Violence Suppression Unit,” that inadvertent reference was limited to his introductory testimony as to his current assignment. Moreover, the court instructed the jury on the limited admissibility of appellant’s parole status, and that such evidence could not be relied upon to prove the elements of the offense. We must presume the jury understood and followed this limiting instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139 (Yeoman); People v. Johnson (1991) 233 Cal.App.3d 425, 446.)
II.
DENIAL OF MISTRIAL MOTIONS
Appellant contends the court abused its discretion when it denied his motions for mistrial. Appellant asserts the motions should have been granted based upon statements of two members of the venire during voir dire. Appellant acknowledges these two individuals were excused and did not serve on the jury, but argues their statements during voir dire were prejudicial to appellant, infected the entire venire, and the court should have granted a mistrial and dismissed the jurors.
A. Background
As noted ante, the court conducted jury selection during the entirety of May 16, 2006. During voir dire, the court asked a prospective juror if that person heard everything that had been asked of the other prospective jurors. The prospective juror said yes.
“THE COURT: I saw you raise your hand several times. You tell us.
“PROSPECTIVE JUROR: I know [appellant] through my current occupation?
“THE COURT: You know [appellant]?
“PROSPECTIVE JUROR: Yeah.
“THE COURT: Okay.
“PROSPECTIVE JUROR: I work as an institutional officer for Juvenile Hall and he was locked up there.
“THE COURT: Okay. You’re excused. Thank you.”
The court then asked another prospective juror if that person heard everything that was asked, and that prospective juror said yes.
“THE COURT: And would you have shared information or have answers responsive to any of the questions if they were asked of you?
“PROSPECTIVE JUROR: Just that I thought the attorney for [appellant] was obnoxious before, and I think I would have a hard time finding his client guilty—innocent, because he just kind of ticked me off.
“THE COURT: Okay. That’s a pretty strong feeling. But you realize that it’s [appellant’s] case, not [defense counsel’s case]?
“PROSPECTIVE JUROR: But then during the break [appellant] was talking to people sitting in the very back row and making fun—
“THE COURT: We’ll excuse you.
“PROSPECTIVE JUROR: Thank you.”
After the jury was selected, sworn, and excused for the evening, defense counsel objected to the court going so late during jury selection. Defense counsel also noted that a prospective juror was excused when he admitted he knew appellant because he was a youth counselor. Counsel argued the “cat was out of the bag, the bell was rung and everybody on the jury heard and then the jury pool heard” character evidence about appellant. Counsel moved for a mistrial or, in the alternative, to admonish the jury, although counsel doubted an admonishment could cure the prejudice.
The prosecutor replied a mistrial motion was “a little bit premature” because “[w]e do not know what evidence will be introduced as far as his status.” Defense counsel conceded that if the court admitted the evidence that appellant was on parole, then “presumably there would be no prejudice because the jury would hear that evidence.” The court heard argument on other issues and adjourned for the day.
Also as noted ante, on May 17, 2006, appellant filed motions in limine in open court to exclude evidence of appellant’s parole status. On that day, the court resumed hearing argument on appellant’s motion for mistrial based on the prospective juror’s comment during jury selection. The court noted that defense counsel moved for mistrial because the prosecutor identified a witness as a parole officer, and a prospective juror knew appellant because he was a guard at juvenile hall. The court noted resolution of this objection could depend on whether it admitted evidence of appellant’s parole status.
However, the court denied appellant’s motion for mistrial and rejected any potential prejudice from the prospective juror’s comment that he knew appellant because he was a guard.
“[THE COURT:] … [The prospective juror] just blurted it out, and he knew [appellant] and he made sure the circumstances of how he knew him were expressed in open court and that was troubling. I do acknowledge that was troubling . But I can’t find that it rose to the level where [appellant] is denied due process. I look at this jury and I think the jurors you’ve selected are fair and open minded, all 13 of them, so I can’t find that [appellant] was prejudiced.
“And further, the Court emphasized during voir dire that the case—they had to decide the case based solely on the evidence presented in the trial. And that thing is again emphasized by this court that we don’t want them to consider extraneous matters.”
The court intended to admonish the jury that it could only decide the case “based upon evidence and I’ll emphasize evidence to make that clear, received in the courtroom and I think that should address the issue adequately.” Thereafter, the court returned to appellant’s motions in limine about his parole status, as set forth ante.
Prior to the introduction of evidence, the court instructed the jury that evidence “usually includes witness’ testimony and exhibits,” and it must not “allow anything that happens outside of the courtroom to affect your decision.” The court also instructed the jury on the prosecution’s burden of proof, and that “[y]ou must decide what the facts are in this case. You must use only the evidence that is presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and anything else I tell you to consider as evidence.” The court further instructed that the jury must “disregard anything you see or hear when the court is not in session, even if it is done or said by one of the parties or the witnesses.
“Ladies and Gentlemen, just a reminder that this case is to be decided based solely on the evidence that’s received in the courtroom and that is from the witnesses who have been placed under oath and any exhibits or physical evidence that may be received, may be diagrams or something, but it has to be received in evidence. And that is an important admonition, not to be decided upon any other extraneous facts that may have occurred at any time during the trial or outside of the—of these proceedings. Base your decision and deliberations solely on the evidence presented in the course of the trial that will be commenced shortly after counsel make their opening remarks.…”
Thereafter, the parties made their opening statements.
B. Analysis
A criminal defendant has the constitutional right to have a fair and impartial jury determine guilt or innocence. (Yeoman, supra, 31 Cal.4th at p. 114.) A motion to dismiss the jury panel is the standard method of addressing prejudicial remarks that irrevocably infect the jury panel, and is made before the jury is sworn. The issue may also be raised with a motion for mistrial, which is necessarily made after the jury has been sworn. (People v. Silva (2001) 25 Cal.4th 345, 372-373.)
The court should grant a motion for mistrial only if a party’s chances of receiving a fair trial have been irreparably damaged, and the court finds the prejudice “to be insusceptible of being cured by admonition or instruction. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 444.) The court’s conclusion on the question of individual and group bias and prejudice by a jury is reversed on appeal only on a clear abuse of discretion. (Ibid.; People v. Martinez (1991) 228 Cal.App.3d 1456, 1466-1467 (Martinez).) “We believe the trial court possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889 (Medina).)
In People v. Vernon (1979) 89 Cal.App.3d 853 (Vernon), the prospective jurors were asked if anyone close to them had been a crime victim. A prospective juror responded that the defendant had been tried for raping her niece. The court immediately excused the juror on its own motion and continued with voir dire. The defendant did not move for a mistrial or ask the court to admonish the panel, and an admonishment was not given. (Id. at p. 865.)
“… We do not perceive that this early in the trial an admonishment would have accomplished anything of aid to defendant. It would have had a more deleterious than beneficial effect by emphasizing the remark. The failure of defense counsel, who the record shows to be competent, to request an admonishment confirms our view. It was a wise tactical decision on counsel’s part. Insofar as a mistrial is concerned, it is within the sound discretion of the trial court. It should not be declared where the court is satisfied no injustice has resulted or will result. [Citations.] Nor will a new trial be granted for remarks overheard by jurors where neither party to the case was at fault, unless it can be said the remarks probably influenced the verdict. [Citations.] In light of the evidence against [the defendant] in this case, we deem it unlikely the remarks influenced the verdict.” (Vernon, supra, 89 Cal.App.3d at p. 865.)
In People v. Fimbres (1980) 104 Cal.App.3d 780 (Fimbres), during voir dire questioning by the trial judge, two potential jurors indicated they would be more likely to believe a police officer than an average citizen. Upon further questioning and explanation from the judge, both indicated they understood they were to make a credibility determination without relying upon the fact that the witness was a police officer. The defendant challenged both jurors for cause and moved to dismiss the entire jury panel. The trial court denied the motion, and Fimbres affirmed:
“We begin with the proposition that in carrying out its duty to select a fair and impartial jury (Pen. Code, § 1078), the trial court is not only permitted but required by inquiry sufficient for the purpose to ascertain whether prospective jurors are, through the absence of bias or prejudice, capable of participating in their assigned function in such fashion as will provide the defendant the fair trial to which he is constitutionally entitled. [Citations.] That fundamental precept, however, does not mean that examination must cease and a venireman be discharged upon an indication in his response to questioning, however preliminary, that he may harbor attitudes or convictions which upon amplification would lead to his disqualification for cause. Rather, as in the opposite case where his initial answers might indicate freedom from such attitudes or convictions, what is necessary is an inquiry calculated in its design and broad enough in its extent to accomplish its intended object, that is, to ascertain whether one satisfies constitutional requirements having to do with jurors. Stated otherwise, the mandate of section 1078 is not ordinarily satisfied by a trial court’s voir dire of prospective jurors which terminates at the first suggestion of possible disqualification of a member of the panel nor is it necessarily overreached when questioning continues beyond responses which seemingly suggest prejudice. Thus it may well be that the answer given to any particular question posed, which would taken alone tend toward those results might, when augmented by further response, clearly be seen to avoid them. Such we believe to have been the case here, and upon the record set out above we are not prepared to say there was error in the trial court’s procedure.” (Fimbres, supra, 104 Cal.App.3d at pp. 788-789.)
In People v. Henderson (1980) 107 Cal.App.3d 475 (Henderson), a prospective juror revealed the defendant had been her client in psychotherapy “‘this year.’” The prospective juror was excused but the defendant moved to dismiss the entire venire and argued the jury was prejudiced by her remarks. Henderson held the trial court did not abuse its discretion in declining to dismiss the venire. (Id. at p. 493.)
In Martinez, several prospective jurors made statements that indicated “strong opinions” about persons charged with crimes, the criminal justice system, defendants who do not speak English, and about police officers. The defendant moved to excuse these jurors, and the court excused all but one individual. The defendant then claimed their statements tainted the entire jury panel and moved to discharge that panel. The court denied the motion and voir dire continued, and the court asked the remaining members of the panel if they felt they could be fair and impartial after hearing the earlier comments. Each person replied the comments would not affect their deliberations. (Martinez, supra, 228 Cal.App.3d at pp. 1460-1462.)
On appeal, Martinez acknowledged the defendant’s argument was that the comments of the prospective jurors were so inflammatory that “we must presume no unbiased and impartial jurors remained on the panel and any doubt regarding the effect of the comments must be resolved in favor of a presumption of prejudice.” (Martinez, supra, 228 Cal.App.3d at p. 1463.) Martinez rejected the argument that juror bias should be evaluated by the same standard as juror misconduct cases. (Id. at p. 1464.) Martinez held that a presumption of prejudice resulted from juror misconduct but not from the responses of a prospective juror to question during voir dire. Instead, the abuse of discretion standard applied to questions of group bias and prejudice. (Id. at pp. 1466-1467.)
“Just as a finder of fact is in a better position than the reviewing court to judge the credibility of a witness, the trial judge is in a better position to gauge the level of bias and prejudice created by juror comments. Several jurors expressed biased opinions with which the remaining jurors did not agree. To the extent the remaining jurors may have found some merit in the comments, it does not appear they were unable to set aside their frustration with the system in order to judge the case against [the defendant] fairly and impartially.” (Martinez, supra, 228 Cal.App.3d at p. 1466.)
Martinez concluded that upon reviewing the totality of the circumstances, the trial court did not abuse its discretion by failing to dismiss the entire panel. (Martinez, supra, 228 Cal.App.3d at p. 1467.)
In Medina, the defendant in a capital case argued the trial court should have discharged the entire venire based on the remarks of several prospective jurors, such as “‘even [the defendant’s] own lawyers think he’s guilty,’” “‘they out to have [sic] him and get it over with,’” and “‘in frontier justice style’ the authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then hang him.’” (Medina, supra, 51 Cal.3d at p. 888.) None of the offending prospective jurors sat on the jury. After the remarks were made, defense counsel argued all the jurors were tainted and moved to dismiss the entire jury. The trial court denied the motion without prejudice, and advised the defendant to conduct further voir dire and that a renewed motion could be made at that time. (Id. at pp. 888-889.) Defendant declined to conduct such voir dire and argued it was impossible to further explore juror group bias without antagonizing the jurors and creating additional bias against the defendant. (Id. at p. 889.)
Medina held the trial court did not err when it refused to discharge the entire venire. (Medina, supra, 51 Cal.3d at p. 889.)
“… Defendant cites no case, and we have found none, indicating that such a drastic remedy is appropriate as a matter of course merely because a few prospective jurors have made inflammatory remarks. Unquestionably, further investigation and more probing voir dire examination may be called for in such situations, but discharging the entire venire is a remedy that should be reserved for the most serious occasions of demonstrated bias or prejudice, where interrogation and removal of the offending venirepersons would be insufficient protection for the defendant. The present case falls short of that mark.…” (Medina, supra, 51 Cal.3d at p. 889.)
In People v. Nguyen (1994) 23 Cal.App.4th 32 (Nguyen), the defendant was Vietnamese, and a Vietnamese prospective juror indicated he feared retaliation from the Vietnamese community if he sat on the case. The prospective juror was excused when the defendant exercised a peremptory challenge, and the trial court denied the defendant’s motion to dismiss the jury panel. (Id. at pp. 40-41.) On appeal, the court affirmed the denial of that motion:
“‘[T]he trial judge is in a better position to gauge the level of bias and prejudice created by juror comments [during voir dire].’ It is within the trial court’s discretion to determine that a prospective juror’s statement was not prejudicial and thereby deny a defendant’s motion to dismiss the jury panel. [Citations.]” (Nguyen, supra, 23 Cal.App.4th at p. 41.)
In the instant case, appellant asserts this issue should be decided based on the presumption of prejudice that is trigger upon a showing of juror misconduct. Appellant relies on a series of cases which involved misconduct committed by sworn jurors during the presentation of evidence and/or deliberations. (See People v. Marshall (1990) 50 Cal.3d 907, 951; People v. Stanley (2006) 39 Cal.4th 913, 950.) As explained in Martinez, however, the impact of biased statements made by prospective jurors on the rest of the venire is not evaluated by the same standard as juror misconduct which occurs during trial or deliberations. (Martinez, supra, 228 Cal.App.3d at pp. 1463-1464.) Martinez held that a presumption of prejudice resulted from juror misconduct, but not from the responses of a prospective juror to questions during voir dire. Instead, the abuse of discretion standard applied to questions of individual and group bias during voir dire. (Id. at pp. 1466-1467.)
Appellant complains the court failed to take the same steps as in Martinez and examine the remaining jurors to determine if they were influenced by the comments, and thus asserts it is “not possible” to conclude the jurors were not prejudiced by the comments of the excused jurors. We note, however, that the trial courts in Vernon, Fimbres, Henderson, and Nguyen did not conduct an inquiry of the remaining jury venire after the removal of prospective jurors who made prejudicial or biased remarks. (Vernon, supra, 89 Cal.App.3d at p. 865; Fimbres, supra, 104 Cal.App.3d at pp. 788-789; Henderson, supra, 107 Cal.App.3d at p. 493; Nguyen, supra, 23 Cal.App.4th at pp. 40-41.) In Martinez, the court and defense counsel asked the remaining jurors about the impact of the biased statements, but the defendant argued on appeal that the venire should have been dismissed because the court failed to conduct a more extensive inquiry. (Martinez, supra, 228 Cal.App.3d at pp. 1463-1464.) Instead, these cases held the trial court did not have a sua sponte duty to conduct such an inquiry, and that the court had broad discretion to determine the impact of the statements of a prospective juror on the remaining members of the venire.
The entirety of the record reflects the court acknowledged the comments made during voir dire were “troubling,” but denied appellant’s motion for mistrial and found the comments did not rise “to the level where [appellant] is denied due process. I look at this jury and I think the jurors you’ve selected are fair and open minded, all 13 of them, so I can’t find that [appellant] was prejudiced.” Moreover, the court extensively admonished the sworn jurors of their duty to decide the case only based on the evidence introduced at the trial, disregard anything that happens when the court is not in session. “And that is an important admonition, not to be decided upon any other extraneous facts that may have occurred at any time during the trial or outside of the—of these proceedings. Base your decision and deliberations solely on the evidence presented in the course of the trial that will be commenced shortly after counsel make their opening remarks.” We again presume the jurors followed this admonition, described as “[t]he crucial assumption underlying our constitutional system of trial by jury.” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17; Yeoman, supra, 31 Cal.4th at p. 139.)
“… A crucial assumption underlying that system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.” (Parker v. Randolph (1979) 442 U.S. 62, 73; Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9.)
Finally, the impact of the prospective juror’s statements was necessarily muted based on the court’s evidentiary ruling. As discussed in section I, ante, the trial court did not abuse its discretion in admitting evidence of appellant’s parole status, given the relevance and probative value of this evidence as to his motive and intent to evade the officers. The prospective juror stated he knew appellant because he worked as an institutional officer at juvenile hall and appellant “was locked up there.” The court permitted evidence appellant was on parole, which necessarily inferred that appellant had a prior conviction of some type, but also excluded any references to the prior offense which resulted in the parole release, or the current reason appellant was a wanted parolee. In addition, the court instructed the jury on the limited admissibility of the parole evidence, and we again presume the jury followed the court’s limiting instructions.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HILL, J. KANE, J.