Opinion
G054643
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLIOTT MICHAEL EVANS, Defendant and Appellant.
James M. Kohoe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier, Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1774) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. James M. Kohoe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, and Collette C. Cavalier, Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Elliot Michael Evans guilty of aggravated mayhem on Jennifer S. (Pen. Code, § 205; count 3), of torturing her (§ 206; count 4), and of torturing Jonathan P. (count 5). The trial court imposed a life sentence on the aggravated mayhem conviction and a consecutive life term for the torture of Jonathan P.
All undesignated statutory references are to the Penal Code.
Evans contends the trial court erred in failing to grant a mistrial after a prosecution witness repeatedly violated the trial court's order not to mention a previous fire while testifying and made other objectionable statements in front of the jury. We find no error and affirm the judgment.
FACTS
Evans is Jennifer's ex-boyfriend. They met in 2014, and a couple of months later started a romantic relationship lasting approximately two months.
Jonathan also is an ex-boyfriend of Jennifer, who resumed her relationship with Jonathan after Evans went to jail. Jennifer broke up with Evans, who was jealous of Jonathan and did not want Jennifer seeing anyone.
Jennifer had an on and off relationship with Evans because of Evans's volatile nature. She said Evans always scared her, explaining she would see him when he was "nice," but often he would be "crazy again" or "psycho."
Evans who was homeless during this period, threatened Jennifer in person and via text messages on a number of occasions. Evans sent a text message to Jennifer stating, "Jonathan will die by my hand tonight. Put that in stone." In other text messages Evans stated, "Your flesh will burn," and "the fire rises." Jennifer called the police about the threats.
On August 9, 2016, at approximately 5:30 p.m., Jennifer met Jonathan at the Deodara Park in Garden Grove. She noticed Evans, who was dressed like the Joker, standing next to her "all of a sudden." Evans said something to the effect of "[w]ow, I can't believe you guys are here," "[t]his is it," "I hope you're ready," "it's going to happen," and "it's happening now." Evans was holding something. Jonathan woke up and told Jennifer they should leave because he did not know what Evans would do.
The next thing Jennifer knew, something broke behind her, there was a ball of fire and her legs were burning. A bike fell on the back of her legs and she could not get up. Jonathan tried to help her put out the flames on her legs when she noticed he also was burned. She rolled on the grass until the fire was out. She jumped on her bicycle and headed "towards the sirens" with Evans behind her, giving chase. Both her legs hurt from having been burned and her skin was hanging off the back of one of her calves. During the chase, Evans warned, "Wait, it's not over. There's more. Don't leave yet, there's more. It's not over. I hope you die. If I can't have you, no one will." After attacking Jennifer, Evans sent another text, declaring, "My last two words to both of you are boom."
Police and paramedics treated Jennifer and transported her to the hospital. Jennifer told an officer she thought Evans was holding a bottle before the fire. She noticed his pockets were "bulging out," but she was not sure whether he had a bottle in his pocket.
Jennifer remained in the hospital's burn unit for three weeks. To treat Jennifer, doctors took skin from her thigh and grafted it onto her calves. Jennifer's legs were scarred and still hurt when she testified at trial.
Jonathan testified he rode his bicycle to the park after smoking marijuana and found a place to take a nap. Jennifer woke him up shortly after 4:30 p.m., but he fell asleep again. When he woke up, Jennifer was seated to his right. He saw Evans arrive on his bicycle and pull "a big butcher knife" out of the bike's basket. Evans was dressed all in purple, like the Joker from Batman.
Evans put the knife in his waistband, pulled out a paper bag and lit it on fire. Jonathan told Jennifer they should leave. Evans said, "here it comes," threw the paper bag into the air and when it hit the ground, Jonathan and Jennifer were engulfed in flames. Evans laughed, telling Jennifer, "Yeah, you're going to get what you deserve. Everybody is getting what they deserve."
Jonathan tried to push Jennifer out of the flames, but she tripped over his bicycle. They both were "on fire." Jennifer put out the flames by rolling on the ground. Once the flames were out, Jonathan directed Jennifer to a nearby bathroom sink so they could put water on their burns. Both his legs were burned, but before he could put water on his left leg Evans approached them with the knife. Jonathan "rushed" Evans and struck him. James Jacobson arrived, grabbed Evans by the neck and threw him to the ground. Jacobson testified he did not see a knife on Evans.
Evans rode away on his bicycle and Jonathan ran after him. When the police arrived on the scene, they tackled Jonathan and placed him in handcuffs. Paramedics arrived, poured water on him, and bandaged his wounds. Jonathan refused to go to the hospital. He testified he lost part of his calf muscle from the burns and was still in pain.
Jonathan also testified Evans threatened him with a meat cleaver and hammer before the day he was burned. Evans warned Jonathan that Jennifer belonged to him and to "[l]eave her alone."
Police officers found Evans in the park minutes after arriving on the scene. Evans was shirtless and from his neck hung a lanyard with a lighter on it. Police also found purple clothing, a bike, and a knife. The purple pants had Evans's identification in a pocket.
Near the restroom in the park, investigators found a charred piece of glass and two wads of burnt material that smelled of gasoline. Testing indicated it contained an ignitable substance.
DISCUSSION
In a pretrial motion, Evans sought to preclude Garden Grove police officers from testifying about a shed fire that occurred the day before the charged incident. The prosecutor stated he did not know anything about it and had no intention of bringing up the matter.
Jonathan was in custody on drug charges at the time of trial. During a pretrial discussion about Jonathan receiving immunity for his testimony, counsel for Jonathan stated, "I don't think this is a witness who can be admonished. I think he is going to do what he wants and say what he wants when he wants." At that point defense counsel voiced her concern about the possibility of Jonathan raising the issue of the shed fire the night before the incident in the park. The court ordered Jonathan not to talk about the shed fire and Jonathan agreed.
During trial, Evans's lawyer cross-examined Jonathan. She attempted to learn which day of the week the charged incident occurred, when Evans explained he was in the park because he had nowhere else to go after his "pad" burned down the night before. Evans moved for a mistrial based on that statement, but the trial court denied the motion because Jonathan did not implicate Evans.
Later during cross-examination, Jonathan testified Evans had attacked him in the past with a meat clever, another time with a hammer, and two days later he "lit my place on fire" and then burned Jonathan's BMX bike. At a side bar discussion, defense counsel moved for a mistrial because, when questioning Jonathan about Evans chasing him with a meat cleaver, Jonathan "went through a whole litany of all the things that he believes [Evans] had done to him, including the fact that he lit his stuff on fire the day before."
The trial court found the standard for declaring a mistrial had not been met, but gave the jury the following admonishment: "The witness indicated his belief that [Evans] was responsible for burning some of his property before the August 9th incident. That is not to be considered by you. That is stricken from the record. We have no evidence of that activity. [¶] Okay? So please erase that from your mind."
When cross-examination resumed, defense counsel told Jonathan she wanted to discuss "the bike." He asked if she meant his "BMX bike that got burnt." The court decided to take a five-minute recess because Jonathan appeared agitated. In chambers after the recess, defense counsel told the court that as the jury was leaving the courtroom and the judge left the bench, Jonathan said he wanted to talk about how Evans burned his bicycle. The prosecutor told the court Jonathan was talking so fast he did not hear what was said. The court acknowledged Jonathan spoke rapidly. Defense counsel represented that while the jury was leaving Jonathan also stated, "I'm not supposed to talk about what [Evans] did."
The statements of Jonathan are not contained in the reporter's transcript. --------
The trial court denied Evans's mistrial motion. Although the trial court had admonished Jonathan not to discuss the burning of the shed the night before the charged incident, the court was not asked to admonish Jonathan about discussing his bike. The court concluded Jonathan's statement about the bike was ambiguous, explaining his bicycle was present when Evans assaulted Jonathan on August 9th and presumably the bike was damaged by the fire because it was on top of Jennifer's legs.
Evans contends the trial court prejudicially erred in failing to declare a mistrial. "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.]" (People v. Bolden (2002) 29 Cal.4th 515, 555.) In other words, a mistrial should not be declared if admonishing the jury could remedy the situation. (People v. Haskett (1982) 30 Cal.3d 841, 854 [court should grant mistrial when prejudice is "incurable by admonition or instruction"].) Because the trial court is in the best position to evaluate the impact, if any, from a witness's statements, the court is afforded wide discretion in evaluating the effect of the witness's statements on the jury. (See People v. Lucero (1988) 44 Cal.3d 1006, 1022 [trial court in best position to evaluate effect of spectator misconduct occurring in the courtroom].)
The trial court did not abuse its discretion. In response to Evans's first mistrial motion, the court correctly observed Jonathan did not implicate Evans when he testified his "pad" had burned down the night before. This statement did not prejudice Evans.
As to Jonathan's testimony that Evans "lit" his place on fire, the trial court admonished the jury to ignore the witness's statement. We presume the jury abided by the admonishment. (People v. Boyette (2002) 29 Cal.4th 381, 436.) "A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that 'the improper subject is of such a character that its effect . . . cannot be removed by the court's admonitions.' [Citation.]" (People v. Allen (1978) 77 Cal.App.3d 924, 934-935.) Although a witness volunteering information not responsive to a question may cause prejudice to a defendant, the court's strong admonition here negated the potential harm from Jonathan's testimony. (People v. Price (1991) 1 Cal.4th 324, 428.)
Contrary to Evans's contention, the jury was not exposed to his "'prior criminality.'" (See People v. Harris (1994) 22 Cal.App.4th 1575, 1580 [exposing defendant's prior criminality to jury may prejudice the defendant's case].) There was no direct evidence defendant set fire to Jonathan's dwelling place, only Jonathan's belief that it had happened. To address potential prejudice, the court directed the jury to disregard Jonathan's unsupported belief.
Defense counsel also made a mistrial motion after Jonathan asserted Evans had burned his bike as the jury was leaving the courtroom. We assume the statement was made, although the trial court made no determination whether the jurors heard Jonathan's accusation. Even if some of the jurors heard Jonathan's comment, the court did not abuse its discretion in declining to declare a mistrial. As the court noted, Jonathan did not say the bike was burned the night before the charged incident when his "pad" burned. Although the jury could conclude Evans set fire to Jonathan's bike the day before he attacked Jonathan, the jury also may have viewed the statement as referring to the damage caused by the fire when Jennifer tripped over his bicycle.
Finally, we conclude any conceivable error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836.) Evan's defense was that Jonathan was the culprit, but offered no evidence to support his theory. Regardless, the evidence of Evans's guilt was overwhelming. Both Jennifer and Jonathan testified he threw a Molotov cocktail at them, causing severe injuries. An independent witness, who also knew Evans, placed him in the area at the time of the attack. There was testimony he wore purple clothing during the attack and, when the police found Evans, they also found purple clothing. In addition, Evans had a lighter hanging on a lanyard from his neck. Both witnesses testified to Evan's prior threats, and the jury saw the threatening texts Evans sent to Jennifer's cellphone. No basis exists to overturn the judgment.
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.