Opinion
A154579
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. DEANGELO CORTIJO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 16CR012117)
The jury convicted defendant of second-degree murder (Pen. Code, § 187 ), together with a true finding that he personally used a firearm during the commission of the murder (§ 12022.53, subd. (a), (b), (g)). In reaching its decisions, the jury was faced with the difficult tasks of resolving conflicting evidence to determine defendant's intent when he pointed a loaded gun at the victim and whether the victim caused the gun to accidentally discharge by pushing it away.
All further unspecified statutory references are to the Penal Code.
Called as the People's first witness, the victim's girlfriend testified the victim had told her that he, the victim, had a prior gunpoint encounter with defendant. The court struck the testimony as inadmissible hearsay, admonished the jurors not to consider the testimony, and denied defendant's mistrial request. We agree with defendant that the denial of a mistrial was erroneous because the testimony concerned the very act for which defendant was now on trial and undercut the defense at its core. Because the error cannot be deemed harmless, we are compelled to reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The fatal shooting took place at approximately 10 p.m. in the parking lot of an apartment complex. A "very grainy" surveillance camera video captured some of the actions of the defendant and the victim before, during, and after the shooting. However, the video did not show what occurred in the crucial moment when the gun discharged and, therefore, the jury necessarily had to make its decisions regarding causation based on the credibility of the witnesses.
According to the People, the evidence (surveillance video together with testimony of several eyewitnesses) established that while the victim was leaving the parking lot, defendant, armed with a loaded gun, confronted the victim and told him to leave the area. When the victim did not leave, defendant came closer and pointed the gun, with his finger on the trigger, within six inches of the victim's face, and the victim pushed the gun away. Defendant, still holding the gun, "crouched, stepped back, pulled the trigger, shot [the victim] in the midsection." The prosecutor argued the evidence of defendant's actions refuted any claims that the shooting was either justifiable or excusable homicide.
According to defendant, the evidence established the shooting was justifiable or excusable homicide. Defendant testified that earlier that evening he was in an apartment with several children when the victim "erratically" attempted to gain entry by scraping against the front door lock, banging on the kitchen window, and kicking the back door. When defendant later saw the victim in the apartment complex parking lot, he was "shocked and frightened," because he thought the victim had left the area. Positioning himself between the apartment and the victim, and with his loaded firearm at his side, defendant told the victim to leave the area. The victim "aggressively" responded, in a loud voice, that he would not leave. When the victim said he would not leave, defendant took that as a threat that the victim was going to either harm him or attempt to gain entry into the apartment where he might harm the children. Defendant thought the victim would comply with his request to leave if he pointed his gun at him and, so, he pointed the gun at the victim and repeated his demand for the victim to leave. The victim again said no, he was not leaving and, acting "erratically," slapped at the gun in a downward motion. "[A]t the same time" the gun discharged a shot by accident, causing defendant to jump back in surprise. The jury was asked to consider evidence showing that defendant's traumatic family history had heightened his fear of the much larger victim and evidence that the victim's blood contained methamphetamine which might explain his erratic and aggressive conduct.
The court instructed the jury to consider the offenses of murder in the first and second-degree, voluntary manslaughter (unreasonable self-defense or defense of others), involuntary manslaughter (criminal negligence), and related firearm use allegations, as well as the concepts of justifiable homicide (reasonable self-defense or defense of others) and excusable homicide (accident). The jury found defendant guilty of second-degree murder and found true the related allegation that he had personally used a firearm. The jury found not true the related allegation that he had personally and intentionally discharged a firearm, causing the death of the victim.
DISCUSSION
TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
DEFENDANT'S REQUEST FOR A MISTRIAL
A. Relevant Facts
The prosecution called as its first witness the victim's girlfriend T.R. On direct examination, T.R. made an in-court identification of defendant as the man who shot the victim, but she was not questioned as to how she was able to identify defendant as the shooter. At the end of her direct examination, T.R.'s video recorded statement to a police officer, made 21 minutes after the shooting at the hospital where she had driven the victim, was played for the jury. In that recording, the officer asked T.R. who shot the victim, and she replied, "This girl he was roommated [sic] with - the brother shot him. . . . The brother just shot him. . . ." During cross-examination, T.R. was asked one question about her relationship with the victim's roommate, "Were you friends with [her]," to which T.R. replied, "I wasn't enemies with her." Defense counsel also elicited that T.R. had never seen defendant before the night of the shooting. No follow up questions were asked by either defense counsel or the prosecutor as to how T.R. was able to identify defendant as the assailant.
We refer to the victim's girlfriend by initials to protect her privacy. (Cal. Rules of Court, rule 8.90(b).)
Appellant's opening brief erroneously states T.R.'s recorded statement was made "several hours" after the shooting. As the court advised the jury: "During the course of the trial the court judicially noticed as true several matters. Because the court has judicially noticed these matters as true, you must also accept them as true. The following was judicially noticed by the court: . . . Greenwich Mean Time (GMT) is 7 hours ahead of Pacific Standard Time (PST) . . . ." Thus, T.R.'s statement was recorded at 10:18 p.m. California (PST) time, which was 21 minutes after the shooting that reportedly happened at 9:57 p.m. Defendant moved pretrial to exclude the recording, which request was denied on the basis that it was admissible as a spontaneous statement under Evidence Code section 1240.
Following the conclusion of T.R.'s testimony, the court asked the jurors if they had any questions for the witness and then took a short recess during which it considered the questions the jurors had for T.R. The court ruled that T.R. would not be asked whether she ever heard of a problem between defendant and the victim because "hearing about it is hearsay." But the court approved a question separately posed by two jurors as to how the witness knew the shooter was the roommate's brother, since T.R. had said in her recorded statement that the shooter was the roommate's brother, but on the witness stand T.R. said she had never seen defendant before the night of the shooting. Neither defense counsel nor the prosecutor objected to the proposed question.
"THE COURT: . . . [T.R.], you continue to be under oath as you provide your testimony. [¶] I need to ask a question: How is it that you knew [defendant] was [the roommate's] brother if you had never seen him?
"THE WITNESS: Because I - I wouldn't say that she was my friend, but I talked to [the roommate] on several occasions. [The victim] had told me about [defendant] - before, he had pulled a gun out on him, one day at home.
"DEFENSE COUNSEL: Objection. Move to strike.
"THE WITNESS: So that's how I knew who he was.
"THE COURT: Hold on. I am going to strike the part about [the victim] "told me," from that forward. That's stricken from the record. [¶] Ladies and gentlemen, again, what I strike from the record you are not to consider for any reason.
THE COURT: I think I want to ask it maybe just a little bit differently. [¶] Had you ever seen a photo or anything of [defendant]?
"THE WITNESS: No.
"THE COURT: Before that night?
"THE WITNESS: Nope.
"THE COURT: So again, without telling me anything anybody said to you - and I don't want to hear words and what they said - how did you know, because you said 'The brother just shot him' . . . ?
"THE WITNESS: Um-hum.
"THE COURT: Yes?
"THE WITNESS: Yes.
"THE COURT: How did you know he was the brother?
"THE WITNESS: Because he was the one in the apartment and [the victim] had told me that the brother is in the house.
"THE COURT: Okay. But again. I guess my question is
"THE WITNESS: [The roommate] and [the victim] had told me about [defendant], so I knew who he was.
"DEFENSE COUNSEL: Objection.
"THE COURT: Hold on. [The roommate] and [the victim] had just told me about [defendant], so I knew who he was, that's not hearsay, Counsel, because she is not saying it. They told me who he was. And so she is saying she knew who he was because of what they had said but not what they had actually said. [¶] On the night of this incident had you seen the person you said was the person that shot [the victim] come from - strike that. [¶] At the point when you saw - you pulled back up to and saw [the victim] standing with this other person, that person had not - you didn't see where that person had come from, correct?
"THE WITNESS: Correct. I didn't see where he came from.
"THE COURT: And what you are indicating - just let me clarify. Based on what you had heard from before from [defendant] [sic] and [the roommate], without telling me what you had heard, was it based on that that you knew this was the brother who was with [the victim] when he was shot? Is that correct?
"THE WITNESS: Correct.
"THE COURT: All right. . . ." (Bolding added.)
Following the conclusion of T.R.'s testimony, defense counsel moved for a mistrial because T.R. had "blurted out a nonresponsive statement" as to what she had been told by the victim. The court was not prepared to say that T.R.'s response was nonresponsive, but acknowledged it was hearsay, and noted that on the court's own motion the response had been stricken and the jury admonished to disregard it. In support of the request for a mistrial, defense counsel argued the case was "simple," concerning "a killing involving a gun," T.R. had intimated "there was a prior incident in which my client pulled a gun on the decedent," and because the evidence undermined the defense "to a huge degree," the error could not be corrected even if an instruction were given to the jury, and therefore the only solution was a mistrial.
The prosecutor opposed a mistrial, noting that the court had immediately stricken T.R.'s hearsay testimony and admonished the jury, and that "[t]he People have had discovery which includes this statement for some time now," but had no intention of eliciting the testimony even though it would have been admissible under Evidence Code section 1101, subdivision (b), as to defendant's intent. The prosecutor was not asked to explain the circumstances under which he had learned of T.R.'s claim regarding the victim's statement or what admonitions the prosecutor had given T.R. concerning her testimony despite the court's earlier ruling that prior bad acts evidence would not be permitted absent an Evidence Code section 402 hearing.
Defendant moved pretrial to exclude evidence of his prior bad acts and to require Evidence Code section 402 hearings before the introduction of any such bad acts. The court ruled that no prior bad act evidence could be introduced without an Evidence Code section 402 hearing.
Defense counsel then renewed his request for either a mistrial or, in the alternative, permission to question T.R. about the victim's prior acts of domestic violence against her "without further opening the door" to evidence of defendant's prior bad acts. Defense counsel stated he did not believe that T.R. had previously made a statement similar to her in-court testimony that the victim had told her about a prior gunpoint encounter with defendant. To which the prosecutor replied, "I do believe there was a similar statement of this kind of this nature throughout her statement to [the police]. It is one of the reasons why most of my questioning I tried to keep to just about what exactly happened that day of this incident." The prosecutor opposed allowing evidence of the victim's acts of domestic violence unless the court allowed evidence of defendant's prior bad acts. To which defense counsel replied it was T.R. who had "opened the door," and "she had a clear agenda."
The court denied defendant's request for a mistrial, explaining it would not speculate as to T.R.'s agenda in giving her objectionable response, the court had no basis to believe the jury would consider the stricken testimony, and there was a lot more evidence that would be presented to the jury. The court also denied defendant's alternative request to admit evidence of the victim's acts of domestic violence under Evidence Code section 352 as the probative value of that evidence, "to refute" the assumption that defendant "pulled a gun on [the victim] before . . . [because the victim] had some sort of character trait for violence," was not outweighed by its prejudicial effect, and to allow the domestic violence evidence would confuse the issue of "whether or not [defendant] shot [the victim] under circumstances of a murder." While recognizing "that the words were said," the court assumed the jury could follow the court's directive not to consider T.R.'s inadmissible testimony for any reason.
When the trial resumed, the court again admonished the jury as follows:
"Then ladies and gentlemen, first, some of the questions you posed were not asked. I just want to remind you that you are not to speculate about why your question may not have been asked or what the answer might have been if it had been asked. Again, it is only what the witness says that is the actual evidence in the case. And with that being said, I want to remind you that if a witness says something and I strike it from the record - and I did strike testimony at least twice today - you are not to consider it for any reason whatsoever. And not considering it for any reason, that means that you can't talk about it, you cannot discuss it, and, maybe most importantly, you cannot let it affect any of the decisions that you will make in this case. And that is up to and including the verdict. So again, the testimony that's stricken [from] the record means you cannot consider it for any reason whatsoever. [¶] Does everyone understand?" The jurors nodded their heads.
Despite the court's admonitions, the jurors continued to express an interest in the prior relationship between defendant and the victim. After defendant completed his testimony, the jurors asked the court to question defendant concerning his previous encounters with the victim. After discussing the matter with counsel, the court found the question was relevant as the jurors wanted to know "if there was any bad blood" between the men. Without objection, the court questioned defendant before the jury, eliciting that he knew and had interacted with the victim before the night of the shooting. The court followed up with, "And your interactions with [the victim] before . . . weren't negative; is that correct?", to which defendant replied, "Yeah. There was one interaction that was negative. [¶] Should I explain?," and the court replied, "No." The jurors were therefore left with evidence that the men knew each other and had previously had a negative interaction. However, they were not given any information regarding prior interactions other than the stricken testimony, "before, he had pulled a gun out on him, one day at home."
In closing instructions, the court again admonished the jurors that "[i]f [the court] ordered testimony stricken from the record" they "must disregard it and must not consider that testimony for any purpose." (CALCRIM No. 222.)
B. Applicable Law
"A motion for mistrial is directed to the sound discretion of the trial court. . . . '[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.]" (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) " 'Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment . . . .' " (People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429 (McNally).) But, "it is not always possible to cure error [by admonitions], for example, where the objectionable evidence goes to the main issue and the proof of guilt is not clear and convincing." (People v. Duncan (1960) 53 Cal.2d 803, 818; see also People v. Harris (1994) 22 Cal.App.4th 1575, 1580 ["[t]here 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"].)
We review a ruling on a motion for a mistrial based on the erroneous admission of evidence "for an abuse of discretion," recognizing that a motion for mistrial should be granted only when " ' " 'a [defendant's] chances of receiving a fair trial have been irreparably damaged' " ' " (People v. Collins (2010) 49 Cal.4th 175, 198) and where " ' "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions" ' " (McNally, supra, 236 Cal.App.4th at p. 1429). The denial of a mistrial based on the erroneous admission of evidence is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Welch (1999) 20 Cal.4th 701, 749-750.)
C. Analysis
We initially reject defendant's arguments that either the court erred or the prosecutor was at fault for T.R.'s objectionable testimony. Defendant contends the court ran "a serious risk" when it asked T.R. an open-ended question posed by the jurors. However, while T.R.'s objectionable testimony was inadmissible, "its inadmissibility was not apparent upon the face of the question; it became apparent only when the answer was given. As far as the question is concerned, [how did you know defendant was the roommate's brother], there was nothing perceptible from its terms which would indicate that any testimony given in response to it would be inadmissible" (People v. Lawrence (1904) 143 Cal. 148, 155), and especially it could not be anticipated that T.R. would give the highly prejudicial response. Defendant also asserts the prosecutor was at fault by failing to warn T.R. not to provide this testimony or by failing to warn the court not to ask the question as it could elicit impermissible testimony. However, the record does not include any information regarding the exact circumstances under which the prosecutor learned of what the victim had told T.R. about any prior gunpoint encounter between the men or what admonitions the prosecutor had given T.R. concerning her testimony.
Nonetheless, we conclude the court's denial of a mistrial was an abuse of discretion. T.R.'s objectionable testimony was revealed shortly after opening statements in which both the prosecutor and defense counsel made clear that the crucial issue would be defendant's intent on the night of the shooting. While the court struck T.R.'s objectionable testimony with a general admonition to disregard it, "the damage had been done and could not have been cured by the court's admonition[s]. The mere direction that the testimony should be disregarded was no antidote for the poison that had been injected into the minds of the jurors." (People v. Bentley (1955) 131 Cal.App.2d 687, 690 (Bentley), disapproved on another ground in People v. White (1958) 50 Cal.2d 428, 431.) Although T.R.'s objectionable testimony occurred at the beginning of the trial, defense "counsel no doubt realized the gravity of the situation," and therefore, when requested to do so, the court "should have declared a mistrial and discharged the jury." (Bentley, supra, at p. 691; see People v. Roof (1963) 216 Cal.App.2d 222, 224-227 (Roof) [despite ample evidence of guilt, defendant in grand theft case was deprived of fair trial when a police officer testified defendant stated he had been charged with contributing to the delinquency of minor; the objectionable testimony deprived defendant of his only available defense that he had not acted with fraudulent intent and was presumed to be of good character and an admonition to the jury to disregard the objectionable testimony would have been unavailing even though not requested or given]; Bentley, supra, at pp. 689, 690-691[trial court committed reversible error in child molestation case by failing to declare a mistrial when a prosecution witness gave unsolicited testimony that during a police interrogation defendant denied he had been a suspect in a previous molestation case; striking the objectionable evidence and admonishing the jurors to disregard it was inadequate to cure prejudice].)
We further conclude that the erroneous denial of defendant's motion for a mistrial was not harmless for the following reasons. In considering the impact of T.R.'s testimony, we find its prejudicial effect was not lessened by either its brevity or any ambiguity. There is no question that the record shows both the trial court and counsel believed the jury had interpreted T.R.'s response as asserting that defendant had previously pulled out a gun on the victim. While the dissent suggests that T.R.'s response was ambiguous because it "could just as logically have referred to an incident in which the victim previously pulled a gun on defendant" (italics added), the purported ambiguity does not cure the fundamental problem with the jury hearing the objectionable testimony. Given the nature of the charges concerning a gunpoint encounter, any prior incident, regardless of which man was armed, would undoubtedly have an impact on the jury's decisions. For example, if the victim had previously pulled a gun on defendant, then such evidence would be equally relevant to the central question of defendant's intent on the night of the shooting. Nor are we persuaded by the People's argument that T.R.'s objectionable testimony was not prejudicial because it was "less inflammatory" than the charged offense which resulted in the death of the victim. While the specific circumstances of the prior gunpoint encounter are not known, the encounter was the very same type of incident for which the People now sought to hold defendant liable for second-degree murder under an implied malice theory based solely on his act of pointing a loaded gun, with a finger on the trigger, six inches from the victim's face, which was " ' " 'an act, the natural consequences of which [was] dangerous to life,' " ' " he knew his conduct " ' " 'endanger[ed] the life of another . . . [and he acted] with a conscious disregard for life.' " ' " (People v. Cravens (2012) 53 Cal.4th 500, 508 [describing elements of physical and mental components of implied malice].)
We also see no merit to the People's argument that T.R.'s objectionable testimony was not prejudicial because it was "equally likely to be interpreted as supporting" defendant's defense. Earlier in the trial, a juror asked the court to question T.R. as to whether she had ever heard of a problem between the defendant and victim. While the court declined to ask T.R. that question, the witness unequivocally answered it by her objectionable testimony of a prior gunpoint encounter between the men. Despite the court's admonition to disregard T.R.'s objectionable testimony, the jurors continued to express particular interest in learning about prior encounters between the men. At the conclusion of defendant's testimony, a juror again asked the court to question defendant about prior encounters, and the jury was only informed the men had one prior negative interaction with no explanation allowed. Thus, it is extremely unlikely that knowledge of a previous gunpoint encounter, without any explanation of the specific circumstances, would be viewed by the jurors as supporting defendant's defense. Rather, the jurors would likely view the objectionable testimony as weakening defendant's testimony that on the night of the shooting his conduct was solely a self-defense response to a physically larger victim acting in an erratic and aggressive manner, and not due to a prior negative interaction with the victim.
The dissent's detailed recitation of the testimony in support of the position that the evidence overwhelmingly points to defendant's guilt of second-degree murder on a theory of implied malice, and casts serious doubt on his version of the incident, confirms the parties' strikingly divergent explanations for defendant's conduct before, during, and after the shooting. While defendant's testimony was not entirely consistent, he was doubtless much more focused than other witnesses on the victim's conduct throughout the evening. His testimony was not so unbelievable that evidence of a previous encounter between the men, one at gunpoint, would have had no impact; to the contrary, it might well have been pivotal in the jury's determination of the witnesses' credibility.
In sum, we conclude the denial of the mistrial motion was prejudicial because the crucial issue of defendant's intent "was not fairly tried." (Roof, supra, 216 Cal.App.2d at p. 227.) Defendant's only defense was that he did not intentionally shoot the victim; that his conduct that night was in self-defense or defense of others against a physically larger victim who had been acting in an erratic and aggressive manner and the gun accidentally fired when the victim slapped the gun away. Defendant's claim as to his only defense was confirmed by the prosecutor's closing remarks urging the jury to convict defendant of second-degree murder under an implied malice theory solely for his act of pointing a loaded gun, with a finger on the trigger, six inches from the victim's face. Because we are satisfied T.R.'s objectionable testimony when viewed in the context of the entire trial calls into question the jury's ability to objectively decide the crucial issue of defendant's intent, we are compelled to find a reasonable probability that the outcome of the trial would have been different had the jury not heard the testimony despite the court's admonitions to disregard the evidence. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we reverse the judgment.
In light of our reversal, we need not address defendant's other contentions concerning jury instructions, the prosecutor's closing remarks, cumulative error, or defendant's claim of ineffective assistance of trial counsel.
DISPOSITION
The judgment is reversed.
/s/_________
Petrou, J. I CONCUR: /s/_________
Jackson, J. J. Fujisaki, dissenting
I concur in the majority's conclusion that the trial court and the prosecutor were not at fault for T.R.'s hearsay testimony. But for the reasons below, I respectfully dissent from its conclusions that the trial court prejudicially erred in denying defendant's motion for a mistrial and that reversal of the second-degree murder conviction is required.
I.
Defendant's theory at trial was that he intentionally pointed his loaded handgun at the victim's face in self-defense, and that the gun discharged accidentally when the victim slapped the handgun down. The jury ultimately acquitted defendant of first-degree murder and found he did not intentionally discharge a firearm. But its verdict finding defendant guilty of second-degree murder reflects its rejection of his self-defense theory.
The prosecution's case-in-chief included testimony from T.R. (the mother of the victim's two children), who had driven the victim to the apartment complex the evening of the shooting. Although P.C. (the victim's former roommate and the sister of defendant) had given permission to the victim to sleep at her apartment that night, P.C. was away from the apartment and could not reach anyone to let the victim in. As part of its case, the prosecution presented a tape recording of T.R. telling an officer just after the shooting that P.C.'s brother had shot the victim. During T.R.'s cross-examination, however, defense counsel elicited her testimony that she had never seen defendant before that night.
As the majority notes, jurors were curious about prior interactions between defendant and the victim, and they submitted various questions for the trial court to ask T.R. (Maj. opn., ante, at p. 5.) Although the court declined one juror's inquiry whether T.R. had ever heard of a problem between defendant and the victim, the court approved a different juror question and asked T.R., "How is it that you knew [defendant] was [P.C.'s] brother if you had never seen him?" T.R. answered somewhat nonresponsively, "Because I — I wouldn't say that she was my friend, but I talked to [P.C.] on several occasions. [The victim] had told me about [defendant] — before he had pulled a gun on him, one day at home." (Italics added.) Defense counsel lodged an objection immediately, which the trial court sustained. The court then struck "the part about '[the victim] had told me,' from that forward" and admonished the jurors not to consider that testimony "for any reason." In response to later questioning, T.R. clarified she knew from the victim and P.C. that P.C.'s brother was with the victim when he got shot.
Following a recess, defense counsel moved for a mistrial, arguing T.R.'s testimony that defendant previously pulled a gun on the victim undermined the defense "to a huge degree" and could not be corrected with an instruction. Alternatively, counsel requested permission to question T.R. about the victim's prior acts of domestic violence against T.R. without further opening the door to evidence of defendant's prior bad acts. The court denied defendant's mistrial motion and his alternative request.
II.
The law governing mistrial motions is settled. A trial court should grant a mistrial when it determines that a defendant has been prejudiced by a trial event that cannot be cured by a jury instruction or other admonition to the jurors. (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) Generally, the trial court is in the best position to gauge the likely effect of an objectionable event on the jury. (See People v. Williams (2006) 40 Cal.4th 287, 323.) With reference to prior bad acts evidence, there is "little doubt" that "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." (People v. Harris (1994) 22 Cal.App.4th 1575, 1580 (Harris).) Moreover, while not typical, a witness's volunteered statement can give rise to a finding of "incurable prejudice." (Id. at p. 1581.) " '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.' " (Jenkins, at p. 986.) A trial court's denial of a mistrial motion is reviewed under the deferential abuse of discretion standard. (Id. at p. 985.)
I would uphold the trial court's decision as falling well within its discretion. I also conclude the denial of a mistrial was harmless in any event.
On the first point, I see no basis for disturbing the trial court's exercise of its discretion in denying a mistrial. T.R.'s statement was brief, and it was ambiguous. Although the trial court and the parties seemed to recall otherwise, T.R. did not in fact testify she was told that defendant previously pulled a gun on the victim. Rather, in response to a neutral question asking how T.R. knew defendant was P.C.'s brother if she had never seen him before the shooting, T.R.'s actual spoken words were: "Because I — I wouldn't say that she was my friend, but I talked to [P.C.] on several occasions. [The victim] had told me about [defendant] — before, he had pulled a gun out on him, one day at home." (Italics added.) Thus, as far as the jury was concerned, T.R.'s testimony could just as logically have referred to an incident in which the victim previously pulled a gun on defendant.
The statement was also ambiguous in the sense that T.R. never provided any details concerning the circumstances of the prior incident and so, for example, the jury had no information from which it could discern whether or to what extent the prior action may have been justified. Considering the complete absence of detail, it cannot be said T.R.'s statement about a prior encounter went to a main issue in this case, such as self-defense. (See generally People v. Duncan (1960) 53 Cal.2d 803, 818.)
Although the majority's review of the cold record leads it to conclude otherwise, the trial court was best situated to assess the likely effect of T.R.'s brief and ambiguous testimony on the jury and the efficacy of an admonition to address any perceived effect the stricken testimony might have on defendant's case. (Accord, People v. Williams, supra, 40 Cal.4th at p. 323; People v. Collins (2010) 49 Cal.4th 175, 198-199.) On appeal, "[w]e presume jurors 'generally understand and follow instructions.' " (People v. Myles (2012) 53 Cal.4th 1181, 1212.) Accordingly, "[w]e assume the jury followed the admonition and that prejudice was therefore avoided.' " (People v. Bennett (2009) 45 Cal.4th 577, 612.) Indeed, it is only in the exceptional case that the improper subject matter is of such a character that its effect cannot be removed by the court's admonitions. (See generally People v. Seiterle (1963) 59 Cal.2d 703, 710.) Here, there was nothing particularly significant or extraordinary about T.R.'s fleeting and nonspecific testimony that necessitated a mistrial.
Second, considering all the evidence introduced at trial, I conclude the jury's exposure to T.R.'s brief and ambiguous statement was patently harmless. Denial of a mistrial may be deemed nonprejudicial where, after the conclusion of a trial, an appellate court concludes it is not reasonably probable that the defendant would have obtained a more favorable outcome but for the admission of the material targeted in the mistrial motion. (E.g., People v. Welch (1999) 20 Cal.4th 701, 749-750 [denial of a mistrial based on the erroneous admission of evidence showing the defendant was a drug dealer reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836]; Harris, supra, 22 Cal.App.4th at p. 1581.)
Here, defendant and the majority appear to suggest that T.R.'s statement was unduly prejudicial because, by referring to an incident in which defendant previously pulled a gun on the victim, the statement completely undermined defendant's claims that he did not intend to shoot the victim and that his gun discharged accidentally. (See maj. opn., ante, at p. 12.) But even assuming T.R.'s statement supported the leap to the conclusion that defendant engaged in an unjustified prior bad act, the jury in fact accepted defendant's claim of an accidental shooting and found not true the allegation that he intentionally discharged a firearm. Thus, it cannot be said that T.R.'s statement prejudicially affected the outcome in the manner suggested.
Moreover, there was overwhelming evidence—independent of T.R.'s statement—pointing to defendant's guilt of second-degree implied-malice murder. Much of that evidence consisted of testimony from defendant's own mouth, including the following. At approximately 9:15 p.m. on October 24, 2016, the victim began banging loudly on the locked doors and window of P.C.'s apartment unit, trying to gain entry. After the banging stopped and the victim departed, defendant exited P.C.'s apartment with a loaded handgun, knowing the victim was unarmed. Upon confronting the victim in the parking lot of the apartment complex, defendant intentionally pointed the loaded gun within six inches or so of the victim's face, with his finger on the trigger. Defendant did not know how to use a gun, but he admitted knowing that pointing a loaded gun at someone is dangerous and that guns kill people.
Thus, despite believing that defendant did not harbor an intent to kill, defendant's own testimony established that his actions reflected a conscious disregard for human life, i.e., that he killed with implied malice. (See People v. Thomas (2012) 53 Cal.4th 771, 814-815 ["An unintentional shooting resulting from the brandishing of a weapon can be murder if the jury concludes that the act was dangerous to human life and the defendant acted in conscious disregard of life."]; People v. Valencia (2008) 43 Cal.4th 268, 288 [a claim of imperfect self-defense, like a claim of perfect self-defense, is unavailable where the defendant first assaulted the victim].)
Defendant attempted to justify the killing as self-defense or defense of others, based on the following factual contentions: (1) when the victim came to P.C.'s unit, defendant feared for his own safety and the safety of the children inside; (2) defendant's only option was to convince the victim to leave the area; and (3) the gun defendant carried was the only thing that could stop the victim from entering P.C.'s unit. Defendant took the stand to explain his actions and state of mind leading up to the shooting, but significant aspects of his testimony cut against a self-defense theory. Moreover, other evidence severely undermined defendant's credibility on certain key points.
Defendant testified that, beginning at approximately 9:15 p.m., the victim engaged in behavior that put defendant in fear of his safety and the safety of several children inside P.C.'s apartment. According to defendant, the victim banged in a loud and non-stop manner on P.C.'s front door (at one point for two to three minutes and at another point for 45 seconds). The victim then moved to the kitchen window where he again banged loudly and tried to slide it open. The victim thereafter banged at the back door with such force that it sounded like someone wearing a heavy boot was trying to kick the door down. The loud and intermittent banging lasted about 15 to 20 minutes from start to finish.
Defendant's testimony on this point was contradicted by four people from neighboring and nearby apartment units—Galtney, Smith, Tinsley, and McGowan—who testified they heard no knocking or other disturbance at P.C.'s unit, even when they were outside their units.
And contrary to defendant's testimony painting the victim as aggressive and threatening that evening, three witnesses—Galtney, Smith, and Tinsley—saw no aggressive or angry behavior on the victim's part and observed instead that the victim seemed "relaxed," "cool," "calm," and even "chipper" as he sat on the bench outside of P.C.'s unit, smoking a cigarette and using his cell phone. P.C.'s testimony aligned with the above testimony and did not support defendant's characterization of the victim's demeanor. In particular, P.C. testified she was texting with the victim during the relevant time period and told the victim he could stay overnight in her apartment. Her testimony made no mention of being in fear of the victim that evening. Moreover, at least one of the victim's text messages to P.C.—in which he responded "LOL" to a text from P.C.—likewise indicated the victim was not angry or threatening.
Defendant testified he was afraid of the victim because of the victim's bigger size, his alleged abusiveness toward P.C., and his loud knocking and attempts to enter P.C.'s apartment unit, which triggered defendant's memories of abuse he suffered as a child. But as indicated above, no one else in the complex heard or saw any sort of disturbance despite their close proximity to P.C.'s unit. Moreover, defendant admitted seeing that the victim had no weapon, and defendant acknowledged he did not call either 911 or his sister while the victim was outside the apartment unit and supposedly trying to break in. Instead, once the victim stopped knocking and departed the immediate area, defendant exited the safety of the locked apartment with a loaded handgun. And despite defendant's proclaimed fear that the victim would gain entry into P.C.'s unit and threaten the safety of the children, defendant left the children in the apartment without locking it up and without knowing where the victim might have gone. Relatedly, neither Smith nor Tinsley perceived that defendant seemed afraid as he went to confront the victim with his loaded handgun. Indeed, Smith testified he heard defendant say he was going to "pop" someone, which Smith understood to mean defendant intended to shoot someone. Tinsley similarly testified that defendant said the victim was "cookies," meaning defendant wanted the victim "off or dead."
Other evidence subverting defendant's self-defense theory included the following. Defendant testified he left P.C.'s apartment unit and confronted the victim as the victim was walking back toward the apartment. That testimony, however, was contradicted by all the other evidence. Tinsley testified he saw defendant approach the victim and point his gun after the victim had already exited the apartment complex gate and was walking toward the driveway. Galtney, who witnessed the shooting from ten feet away, similarly testified that after the victim exited the gate, defendant approached the victim from behind, which prompted the victim to stop and turn around. The testimony of these witnesses was partially corroborated by a surveillance video showing that defendant walked across the parking lot to confront the victim. That the victim was on his way out of the complex was further evidenced by his text messages to T.R. saying he was locked out of P.C.'s apartment and would not be sleeping there.
The foregoing evidence presented an overwhelming case establishing that defendant, not the victim, initiated the aggression. No one but defendant described the victim as acting in a threatening manner when the victim was at P.C.'s apartment or when defendant confronted him. To the contrary, Tinsley saw defendant threaten the victim, even though the victim had made no threatening motions and took no aggressive stance. Galtney more specifically testified that the victim did nothing aggressive toward defendant before defendant drew his gun and pointed it directly at the victim's face. Rather, she testified, the victim reacted calmly and said, "come on, Bro," before pushing the gun downward and away from his face.
Defendant's post-shooting conduct and deceptive statements likewise cast serious doubt on his credibility and his claim of self-defense. After the shooting, defendant, who was still armed with his handgun, prevailed upon Tinsley for a ride and fled the scene. While in the car with Tinsley, defendant seemed "nonchalant." Defendant also warned Tinsley not to tell anybody about what happened, which scared Tinsley.
Additionally, defendant lied to his sister P.C. and to police officers during a phone call that occurred a few hours after the shooting. In that call, defendant denied to P.C. that he did anything and told her he would not come back. When Officer Barnes got on the phone, defendant admitted he was at the crime scene, but lied and claimed he ran "as soon as they started shooting." When asked who was shooting, defendant elaborated on his lie and said "these people came up from the bottom and started shooting and I ran." After talking with Officer Barnes, defendant spoke with Sergeant Trevino and denied he was anything more than a witness at the shooting. Defendant did not mention during that phone call that the victim put him in fear for his life or that he shot the victim in self-defense. Not only was this evidence of consciousness of guilt, the jury could reasonably have viewed defendant's lying as warranting rejection of other aspects of his testimony.
Defendant's conversation with Barnes was recorded and played at trial.
As the majority observes, after the attorneys concluded their questioning of defendant, the jury requested that the trial court ask defendant about his previous encounters with the victim. (Maj. opn., ante, at p. 9.) But unlike the majority, I find it wholly speculative to conclude that the jury's request logically related to T.R.'s stricken testimony or somehow confirmed its supposedly prejudicial nature. Notably, the jury's interest regarding previous encounters was unsurprising given P.C.'s testimony that defendant and the victim saw each other at her apartment and were not strangers and defendant's testimony that, when he peeked out the kitchen window to see who was knocking, his fear heightened because he knew the victim as someone who had abused P.C. Moreover, the jury had exhibited the same curiosity regarding prior interactions between defendant and the victim even before T.R. mentioned the alleged prior gun-drawing encounter, as evidenced by the initial question a juror submitted asking whether T.R. ever heard of a problem between defendant and the victim. (Maj. opn., ante, at p. 5.)
Finally, there is no indication that the prosecutor took advantage of T.R.'s stricken testimony or otherwise exploited any circumstance of the trial court's striking of the testimony in order to make his case against defendant. And as discussed, we may presume that the jurors understood and adhered to the court's repeated admonitions—the first given after defendant's mistrial motion was denied and the second given during closing instructions—that the jurors were to disregard and not consider any stricken testimony for any reason.
On this record, I conclude T.R.'s brief and ambiguous statement was inconsequential to the jury's determination that defendant committed second-degree murder and its rejection of the self-defense theory. Not only should we presume that the jurors followed the trial court's admonitions to disregard any stricken testimony, but there is no reasonable likelihood that but for hearing T.R.'s statement, the jury would have been persuaded to reach a different outcome.
/s/_________
Fujisaki, Acting P.J.