Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA078690, Bruce F. Marrs, Judge. Reversed.
Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Beverly K. Falk and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
MALLANO, P. J.
Oscar Cordero appeals from the judgment (order granting probation) entered following a jury trial in which he was convicted of simple assault as a lesser included offense of lewd and lascivious conduct and attempted lewd and lascivious conduct. Defendant contends that the judgment should be reversed as a result of a prosecution witness’s improper reference to an uncharged act. We agree and therefore reverse the judgment.
BACKGROUND
K.C. is defendant’s niece. (Her father, who is separated from K.C.’s mother, is one of defendant’s brothers.) One weekend in February or March, 2007, 14-year-old K.C. was staying at the residence of her paternal grandparents, where 28-year-old defendant and at least two other brothers (but not K.C.’s father) lived. Defendant slept in a downstairs den, in which there was a queen size bed that had many pillows. K.C. had a good relationship with defendant and often watched movies on the television set in his room.
One evening that weekend, defendant went out and K.C. watched a movie while lying on defendant’s bed. She had planned to go upstairs when the movie was over but fell asleep with the television on. Around 5:00 a.m., she awoke to find defendant’s hand “underneath [her] underpants,” “rubbing [her] butt.” K.C. trusted defendant and was “in shock,” never expecting that he would do something like that. She did not know how long the rubbing continued, but at some point it stopped when she turned around. K.C. then crawled over defendant so she could get out of the bed and went upstairs.
About a week after the incident, K.C. told the girlfriend of one of her uncles what had happened. In March 2007, K.C.’s father asked defendant what had happened. Defendant “basically said that he had touched [K.C.] on her butt.” Defendant apologized and said he was drunk at the time.
K.C.’s mother learned of the incident from K.C.’s father. On March 14, 2007, K.C.’s mother spoke with defendant by telephone. Defendant “started to cry and said he was sorry for what he did to [K.C.], that he was drunk, he didn’t know what he was doing.” He also asked if he could come to the house that evening to apologize. K.C.’s mother told him not to come.
The incident was reported to the police. Investigators contacted defendant, who came voluntarily to the police station and gave a statement to Detective Harvey. Defendant said he had been drinking with a friend that evening and arrived home in the early morning hours to find K.C. sleeping in his bed. The interview continued in pertinent part as follows:
“[Defendant]: I thought it was kind of odd that she was in my bed because she usually doesn’t sleep there um so I get into bed you know, um, you know obviously really intoxicated at this time at this point I put my arm around my niece you know to kind of hug her to go to bed and then my hand slipped down to her buttocks area um the next thing I remember was waking up later that night and her not being you know on the bed, so at this point I’m thinking man, hopefully this is a dream, hopefully this didn’t happen um because I didn’t really want to have to explain myself to my niece oh you know I had my hand on your butt what’s that all about?
“Det. Harvey: Uh-huh.
“[Defendant]: So in the morning she woke up...
“Det. Harvey: When it happened you knew that your hand slipped down there?
“[Defendant]: I did.
“Det. Harvey: Okay.
“[Defendant]: I did, you know, it was I had it, it was around you know around her back then you know I did notice it slipped down to her butt um and then you know I fell asleep, um and like I said I woke up and I you know she wasn’t there anymore.
“Det. Harvey: Okay.
“[Defendant]: So um the next morning I didn’t mention anything because I you know was hoping that you know that really didn’t happen and she didn’t mention anything you know.
“Det. Harvey: Uh-huh.”
“Det. Harvey: Okay and then um you said you put your arm around her why was the reason you putting your arm around her?
“[Defendant]: I usually sleep with a pillow around, around me.
“Det. Harvey: Uh-huh.
“[Defendant]: And I guess you know it’s just instinctively you know um...
“Det. Harvey: But you realize it was her there when you put...
“[Defendant]: I did realize it was her there, you know, I did.
“Det. Harvey: You were just intoxicated or something?
“[Defendant]: I was intoxicated, yes, but even though you know we, my background, we’re Nicaraguan, and we’re really affectionate with each other and that’s something you know that’s not weird to do that, you know, um you know I realize it was really bad judgment for me to get into bed with her, her being you know so young you know but you know unfortunately I wasn’t really thinking properly.
“Det. Harvey: Okay and you said your hand slipped down onto her buttocks.
“[Defendant]: Yeah.
“Det. Harvey: You mean like, was she lying on her back on side on her stomach?
“[Defendant]: She was laying on her um on her side.
“Det. Harvey: Facing away from you...
“[Defendant]: Facing away from me.
“Det. Harvey: Okay, so you had your arm around her, were you on your side or on your back or on your... ?
“[Defendant]: I was on um I was on my back and then I turned around and you know by this time we’re facing the same way.
“Det. Harvey: Okay, so you put your arm around her then your arm slid down. Describe how you mean when say slid down?
“[Defendant]: Slid down, I just you know it slid down to her butt.
“Det. Harvey: So it’s something you knew you were doing but you just...
“[Defendant]: Yeah.
“Det. Harvey: Unintelligible
“[Defendant]: I didn’t have, you know I just didn’t...
“Det. Harvey: Okay and did you said you slid it down keep it on her butt, did you squeeze her butt? Did were you just petting her butt? Or what were you doing?
“[Defendant]: It was just on her butt you know I don’t, I don’t recall you know squeezing it or, or you know petting it I just you know my hand was on her butt.
“Det. Harvey: And then um what was she wearing?
“[Defendant]: Um she was wearing her pajamas, she usually wears um either ah sweats or shorts.
“Det. Harvey: Do you know do you recall what she was wearing that night?
“[Defendant]: That night um she was probably wearing ah shorts.
“Det. Harvey: Okay and what kind of top?
“[Defendant]: Um I don’t know a t-shirt or something.
“Det. Harvey: Okay and what were you wearing?
“[Defendant]: I was wearing my sweats and I was wearing a t-shirt and that’s how I usually sleep.
“Det. Harvey: Okay and when you slid you hand down did you put your hand under her clothes or on top of her clothes?
“[Defendant]: No I didn’t. My the clothes my hand was just on top of the clothes.
“Det. Harvey: And how long would you say your hand was there before you fell asleep.
“[Defendant]: Ah...
“Det. Harvey: Or do you know?
“[Defendant]: I don’t know. I just, not that long, because I was really it was four in the morning I was tired by that time and I was just you know I couldn’t stay up.”
In defense, defendant’s girlfriend testified defendant told her he had wanted to apologize to K.C.’s mother because “that night when he was out, he came and he had touched [K.C.’s] buttocks.” Defendant had a habit of hugging the pillows on his bed during the night. When defendant’s girlfriend was in bed with him and he was hugging her, defendant would often touch her on the buttocks. Defendant told his girlfriend that he had called K.C.’s mother and apologized to her for touching K.C.
In final argument, the prosecutor focused on the sexual intent element of the charged offense of lewd conduct and the lesser offense of attempted lewd conduct, noting defendant’s acknowledgment of being aware that he touched K.C.’s buttocks, questioning defendant’s claim of not remembering details, and asking, “How often does your hand slip while you’re laying in bed?” The prosecutor also referred to defendant’s apologies for what he had done. Defense counsel agreed that the key issue was intent, noting that although voluntary intoxication was not a defense, it could be considered in determining defendant’s guilt.
DISCUSSION
During K.C.’s mother’s testimony, immediately after saying that defendant told her he did not know what he was doing with respect to K.C., K.C.’s mother continued: “And then [defendant] apologized [for] what he did to my son when he was little, too.” Defendant objected and moved to strike the answer. The motion was granted with respect to the reference to K.C.’s mother’s son, and the jury was instructed to disregard the reference. Defendant’s later motions for a mistrial and for a new trial were denied.
Defendant contends that he was prejudiced by the stricken portion of K.C.’s mother’s testimony. We agree.
K.C.’s mother’s reference to her son was improper. K.C.’s mother had previously referred to her son while testifying at the preliminary hearing. At trial, defendant moved in limine to preclude such testimony, which referred to an incident that occurred about 16 years earlier when defendant was 12. Defendant’s in limine motion was granted. During argument on the motion for a mistrial in the course of K.C.’s mother’s testimony, defense counsel expressed disbelief that the prosecutor had not told K.C.’s mother to refrain from mentioning her son. After the motion had been denied, the prosecutor added: “Your Honor, for the record, I would just like to point out that I, as a D.A., never coach any witness.”
We share defense counsel’s dismay about an opponent who fails to instruct a witness to avoid a topic on which evidence has been excluded. “‘A prosecutor has a duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement.’ [Citation.]” (People v. Leonard (2007) 40 Cal.4th 1370, 1406.)
As a general rule, and regardless of how K.C.’s mother came to give her objectionable testimony, “‘“[a] mistrial should be granted if the court 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.] Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. [Citation.]’ [Citation.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.)
It is true that, regardless of the stricken testimony, the jury was not impressed with the prosecution’s case. By finding defendant not guilty of the charged offense of lewd and lascivious conduct and guilty of simple assault, the jury rejected K.C.’s version of events that defendant’s hand was “underneath [her] underpants,” “rubbing [her] butt.” Nevertheless, a reasonable juror would find it difficult to disregard K.C.’s mother’s reference to conduct toward her son when he was “little” for which defendant had felt the need to apologize, especially because the jury did not know its nature or that it had occurred many years in the past.
Defendant’s statement to the police, while conceding that his hand had touched K.C.’s buttocks, did not constitute an admission of the necessary assault element of “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (People v. Williams (2001) 26 Cal.4th 779, 790.) As such, it is reasonably probable that had K.C.’s mother not volunteered testimony about defendant’s conduct toward her son, defendant would not have been convicted of any of the crimes on which the jury was instructed. Accordingly, defendant’s conviction cannot be allowed to stand.
DISPOSITION
The judgment is reversed.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.