Opinion
B229612
11-30-2011
THE PEOPLE, Plaintiff and Respondent, v. RAYFUS FULLER, Defendant and Appellant.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA368997)
APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis J. Landin, Judge. Affirmed.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
In an amended information filed by the Los Angeles District Attorney, appellant Rayfus Fuller (defendant) was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and attempted murder (§§ 187, subd. (a), 664). As to both counts, it was further alleged that defendant personally inflected great bodily injury upon the victim (§ 12022.7, subd. (a)). As to the attempted murder count, it was further alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission and attempted commission of the offense (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant pleaded not guilty and denied the special allegations. Trial was by jury. The trial court denied the defense motion for a mistrial.
Following trial, the jury found defendant guilty of assault with a deadly weapon and found the great bodily injury allegation to be true. It found defendant not guilty of attempted murder. The trial court denied probation and sentenced defendant to seven years in prison.
Defendant appeals, claiming that the trial court abused its discretion and violated defendant's right to due process in denying his motion for a mistrial. He argues that the inadvertent testimony of a witness was prejudicial, and the trial court's admonishment of the jury was ineffective.
We affirm.
FACTUAL BACKGROUND
I. Prosecution's Evidence
A. Background
Defendant was raised by his mother, Dorothy Braithwaite (Dorothy), and stepfather, Clifford Braithwaite (Clifford), since he was five years old. Defendant moved out of the house when he married. Defendant later separated from his wife and moved back into the house about six weeks before March 11, 2010. At that time, he was 40 years old, was about five feet-six inches tall, and weighed 200 pounds. Clifford was 66 years old, five feet-six inches tall, and weighed about 135 pounds. Clifford first learned that defendant would be living at his house on the date that defendant moved in there.
Initially after defendant moved back into his parents' house, there were no problems between defendant and Clifford. However, tensions between them grew because defendant was unemployed, would not help around the house, and continuously watched television or played video games. On one occasion, Clifford took defendant to a welfare office to look for a job and apply for food stamps, but defendant continued to do nothing at home. On more than one occasion, Clifford asked defendant to stop watching television every day. Defendant did not respond to Clifford and continued to watch television. Clifford also told defendant to get a job; defendant replied that Clifford was rushing him after he just moved back into the house and that Clifford had to wait until defendant "[g]ot his head together."
Clifford asked defendant to move out of the house more than once. Defendant responded to those requests by stating that what he did (or did not do) at home was none of Clifford's business because defendant was a grown man. Defendant refused to verbally communicate with Clifford, and told Clifford to communicate with him by written notes. Defendant continually tried to "stare . . . down" or give "evil looks" to Clifford in the house; Clifford did not say anything in response to those looks and left defendant alone.
A couple of weeks before March 11, 2010, in an attempt to remove defendant from the house, Clifford went to the police station and sought a restraining order against defendant. Clifford was not given the restraining order and was instructed to go downtown. Because he was attending trade school five days a week to become a carpenter, Clifford was unable to immediately travel downtown to obtain the restraining order.
On Dorothy's advice, Clifford had been ignoring defendant for more than a week before March 11, 2010.
B. The Stabbing on March 11, 2010
At about 6:00 p.m. on March 11, 2010, Clifford arrived home from school. He entered the house through the front door and saw defendant sitting on the living room sofa; Clifford ignored defendant and they did not exchange any words. Clifford then went to speak to his son Ramon Braithwaite (Ramon), who lived in a structure located in the backyard of the house. In the backyard, Clifford complained about defendant to Ramon. Clifford was frustrated and stated that he was going to obtain a restraining order against defendant the next day. Ramon said that once Clifford obtained the restraining order, "'everything w[ould] be cool.'" Ramon was aware that Clifford wanted defendant removed from the house for some time prior to March 11, 2010.
After speaking with Ramon for about 30 minutes, Clifford returned into the house through the back door. Defendant was still seated on the living room couch and had nothing in his hands. Clifford went into a bedroom where he stored his books, papers, and clothing. As Clifford was gathering his school materials to take to his friend's house to study, he heard defendant cussing behind him, but he ignored him. Defendant then stated, "'You got to be quick,'" and he stabbed Clifford on the back of his upper left shoulder. Clifford had not been holding anything in his hands at that time. As Clifford lay on the bedroom floor, defendant straddled him and pinned down his left arm. Defendant stated, "'I'm going to kill you'" more than once as he tried to stab Clifford with a knife. Defendant nearly cut off Clifford's thumb with the knife after Clifford had grabbed it to stop defendant from stabbing him in the chest. Defendant stated, "'I kill you'" while he struck Clifford in the face with his free hand and tried to stab him with his other hand. Defendant also stabbed Clifford on multiple areas of his body while he pinned Clifford to the floor: his side, under his left armpit, and his right arm.
Clifford called out twice to Ramon for help. Outside, Ramon heard two high-pitched screams. Although Ramon initially believed that his mother was screaming, his mother was not at home. Ramon ran inside the house through the back door. Clifford testified that Ramon entered the bedroom and told defendant "Stop it." Defendant jumped off of Clifford and grabbed a machete in the corner of the room. Clifford then ran out of the bedroom and to the kitchen, where he rinsed his injured and bleeding hand. Clifford was unable to move his left arm. Clifford heard defendant tell Ramon, "'I fucked him up.'" Clifford went outside into the backyard to rest because he felt as though he was going to pass out.
Ramon testified that once he entered the house, he went to the living room where Clifford ran past him to the kitchen. Ramon could not determine whether Clifford was injured at that time. Defendant ran toward Ramon with a knife in his hand. The knife had a black handle and was part of a set kept in the kitchen. Ramon stopped defendant from running outside and put his hand on defendant's chest in an effort to calm him. Defendant was very upset and "pissed off." Defendant stated, "'Did you see him? What did he say?'" Referring to Clifford, defendant then stated, "'I got that fool'" or "'I got him.'" Defendant mentioned his hair and Ramon saw a piece of defendant's braid on the floor between two of the bedrooms.
As he continued to hold the knife, defendant then stated, "'I'm about to finish him off.'" Defendant then grabbed a machete from his old bedroom and approached Ramon. Clifford owned two machetes to cut trees, but stored them outside. Ramon continued to try to calm defendant down.
Defendant suggested that Ramon call the police. Ramon subsequently went to check on Clifford. As he walked toward the backyard, Ramon saw blood on the floor and "tons of blood" in the kitchen. Clifford was lying down in the backyard and looked as if he was asleep.
Ramon called 911. The 911 call was played for the jury. Ramon stated that an ambulance was needed because his brother had stabbed his father, who was bleeding profusely. Ramon stated that defendant had a machete and knife in his possession and was yelling inside the house.
Los Angeles Police Officer John Walker and his partner, Officer Sinclair, received a call concerning an assault with a deadly weapon and responded to the house. As they approached the front of the house, Officer Walker saw defendant exit the front door and walk outside. Defendant held a small kitchen knife in his right hand and a machete in his left hand. Defendant had blood on his hands and clothes. Defendant did not appear to be injured, and he did not complain of any injury. Defendant complied with the officers' orders to drop the weapons and was taken into custody. Defendant stated that he was involved in a verbal fight with his father that had turned physical and he had stabbed his father multiple times.
Sergeant Mossy, who later responded to the scene, and Officer Walker entered the house. They observed small pools of blood leading from the front door into the kitchen, and they exited the house's back door. Officer Walker saw Clifford lying on the ground right outside the back door. Clifford had a large amount of blood on his face and body. His clothing was saturated with blood, and he had an open wound with flesh protruding from his right arm. Clifford went in and out of consciousness. Ramon was consoling and holding Clifford. Ramon appeared to be scared and "on edge." Officer Walker collected the knife and machete, which were later booked into evidence.
An ambulance arrived and transported Clifford to California Hospital. Clifford was bleeding excessively and he was categorized as a "trauma level [one]," which meant that he needed the immediate attention of a trauma surgeon. Trauma surgeon David Duarte assessed Clifford and determined that his injuries appeared to be stab wounds. The stab wound to the left axilla (armpit) was life threatening. Clifford also had stab wounds on the left side of his back, his right arm, and his right thumb. Dr. Duarte performed surgery on Clifford and successfully stopped the arterial bleeding of the left axillary area. That stab wound had penetrated about 1.5 to two inches below the skin's surface. Clifford's thumb was sutured. An orthopedic surgeon later performed surgery on Clifford's right arm that sustained tendon and nerve damage. Dr. Duarte opined that Clifford would have died had he not received emergency surgery.
As a result of his injuries, Clifford had limited movement in his right thumb; he did not have full mobility of his left arm; and he was unable to place his right arm behind his back. At trial, Clifford showed jurors a three-inch scar on his right arm, a three- to four-inch scar on his left shoulder, and a scar where defendant had stabbed him under his left arm. Photographs taken at the hospital of the sutures in Clifford's thumb and the stab wound on his back were also shown to the jury. Clifford was admitted to the hospital for five days.
II. Defendant's Evidence
Defendant testified on his own behalf. According to defendant, he moved back into the home on January 8, 2010, after he and his wife separated. Before he moved into the house, he asked Dorothy for permission. Dorothy told defendant that she needed to speak with Clifford; the following day, she told defendant that he could move in any time he wished.
Defendant was unemployed and had no car at the time he lived at his parents' home. He testified that he looked for a job more than 20 times using computers at two different libraries. Before March 11, 2010, defendant said that tension had been rising between him and Clifford, but defendant did not know why. Defendant testified that in February 2010, he felt threatened by the growing tension and decided to leave the house. However, he continued to stay and kept a kitchen knife in his bedroom because he had no other place to go. Defendant and Clifford had not been speaking to one another in the time leading up to March 11, 2010.
On the evening of March 11, 2010, defendant was watching television when Clifford arrived home at about 5:30 p.m. Clifford, who was not carrying any weapons, walked directly to the bedroom that he shared with Dorothy. About 10 to 20 minutes later, Clifford walked through the living room; as he was walking out of the front door, he leaned back and gave defendant a "staring mean glare." About 15 minutes later, Clifford walked into the house through the front door and went back to his bedroom. Clifford walked out of the bedroom about 15 minutes later into the living room, carrying a machete horizontally beneath his arm. Clifford glared at defendant as he walked into the bedroom that he used as a storage room and stayed there for about 20 minutes. According to defendant, Clifford kept his tools on the floor near the closet of that storage room.
Although defendant felt threatened, he decided to confront Clifford about why he was "continuing" to walk through the house with a machete. But, before doing so, he went to his bedroom to change his shoes and to arm himself with the kitchen knife that he kept in his bedroom. Defendant put the knife in his back pocket because of the growing tension in the house and Clifford's act of carrying the machete.
When defendant walked into the storage room, Clifford was standing in the middle of the room and he was not holding the machete. Defendant said something like, "'You need to stop walking around the house with the machete.'" As Clifford began walking past defendant, they suddenly pushed and hit each other. Defendant was unsure who struck the first hit. Defendant described a lengthy physical struggle between himself and Clifford during which defendant struck Clifford and tossed him to the floor as Clifford reached several times for the machete, which was near the door. Defendant testified that he believed that Clifford had grabbed the knife in defendant's back pocket during the struggle as Clifford was on his back. Thereafter, they struggled for control of the knife and machete. Defendant resisted the urge to stab Clifford in the chest. At some point, Clifford pulled out defendant's hair.
As they wrestled for the knife, defendant took the knife from Clifford and hit him. Clifford fell back, but persisted in approaching defendant. Defendant stabbed Clifford once in the front upper shoulder. Clifford fell back, but tried to get the machete and "jumped up" at defendant, who stabbed Clifford a second time in the same area. Defendant then stabbed Clifford for the third and final time in the same area after Clifford had persisted in aggressively approaching defendant and reaching for the machete. Defendant acknowledged that Clifford had no injuries on the front of his shoulder when he showed the jury the stab wounds. Clifford did not stab defendant during the struggle.
After the stabbing, Clifford walked out of the room and through the living room past Ramon. Defendant retrieved the knife and machete and held them in his hands while he spoke to Ramon for about 15 minutes in the living room. Ramon held both of defendant's wrists and told him to calm down. Defendant stated, "'It's your stupid, asshole father that continues to walk around with a machete.'" Defendant told Ramon to look after Clifford and to call 911.
Ramon went to Clifford while defendant remained in the living room and called 911 from his cell phone. Defendant's 911 call was played for the jury. During the call, defendant stated that he needed an ambulance and the police for his stepfather. Defendant further admitted that he stabbed his stepfather, who had come at him with a machete. As a result, defendant said that he protected himself. Defendant declined an ambulance for himself, noting that he was unaware of whether he had been stabbed. Defendant alluded to prior incidents by stating, "[t]his has been going on for a while" and "I know this has been going on for a while ever since . . . me and my wife separated" and "don't be pulling that machete on me anymore."
After the 911 call, defendant walked outside the front door and saw police arrive at his house. He complied with the police officers' orders to drop the knife and machete and was taken into custody.
Los Angeles Police Detective Eloy Ochoa also testified. He stated that during his interview with Clifford after the surgery at the hospital on March 15, 2010, Clifford had not indicated that defendant said "I'm going to kill you" or "You better be quick" at the time of the stabbing. Clifford appeared to be weak during the interview. However, he told Detective Ochoa that defendant had stabbed him. Consistent with his trial testimony, Clifford also had told Detective Ochoa about defendant's unemployment and watching television in the house, Clifford's attempt to help defendant apply for welfare benefits, Clifford's attempt to obtain a restraining order, the events immediately preceding the stabbing, and the stabbing itself. Clifford stated that he may have pulled out some of defendant's hair during the struggle. Detective Ochoa observed the stab wounds to Clifford's back and under his left arm. Clifford also explained that because he was originally from Belize, he owned a machete to cut weeds and trees in his yard.
DISCUSSION
Defendant contends that the trial court abused its discretion and violated his right to due process by denying his motion for a mistrial.
A. Relevant Facts
Before opening statements and outside the presence of the jury, defense counsel moved to exclude testimony from Ramon regarding prior verbal and physical confrontations between Ramon and defendant. The prosecutor stated that she would not introduce specific details of any prior fights between them, but would elicit testimony regarding defendant's growing agitation and hostility towards family members before the charged crime. The prosecutor argued that this evidence was relevant to defendant's state of mind and to refute his claim of self-defense. The trial court instructed the prosecutor not to mention the confrontations during her opening statement. The trial court indicated that it would revisit the issue immediately before Ramon's testimony.
Defense counsel also moved to exclude any testimony from Clifford regarding a prior confrontation between defendant and Ramon in which defendant allegedly brandished knives because Clifford was not a percipient witness to the alleged prior incident. The prosecutor stated that she would not elicit such testimony if Clifford had not been a percipient witness.
Immediately before Clifford's testimony, defense counsel again raised her concern regarding the prior confrontation between defendant and Ramon in which defendant allegedly brandished knives. Defense counsel argued that Clifford should not be allowed to testify regarding that incident because he had not been a percipient witness. The prosecutor stated that she had spoken to Clifford over the lunch break, and he stated that he never saw defendant brandish knives at Ramon. However, Clifford informed her that defendant had brandished two knives at him one or two days before the charged incident. The trial court instructed the prosecutor not to ask Clifford about that prior incident. Rather, the prosecutor was to approach the bench during direct examination if she believed that incident was relevant to her case. Regarding prior confrontations between defendant and Clifford, the prosecutor stated that she would elicit evidence, which had been introduced at the preliminary hearing, of an incident in which defendant and Clifford argued over a television.
During direct examination, the prosecutor asked Clifford if defendant had ever said anything to him to try to intimidate him. Over defense counsel's objection, Clifford stated that defendant told him that defendant's watching television or playing computer games in the house was not Clifford's business. The prosecutor asked if defendant had made any prior threats to Clifford during the time defendant was staying at the house. Clifford replied, "Yeah, [defendant] was telling me it was none of my business." After the trial court denied defense counsel's request for an offer of proof, the prosecutor asked, "What kind of threats did you hear?" Clifford responded, "He attacked me with two knives before."
At defense counsel's request, defense counsel and the prosecutor discussed Clifford's testimony at sidebar. Defense counsel requested a mistrial. The trial court denied defendant's request, electing instead to inform the jury that it was striking Clifford's last answer. Furthermore, the trial court admonished the jury to disregard Clifford's last answer and not consider it during deliberations.
At the conclusion of Clifford's testimony, the trial court allowed defense counsel to make an additional argument regarding the mistrial motion. The prosecutor stated that she told Clifford not to mention the prior incident, but he unexpectedly "blurted . . . out" the response regarding the two knives. The prosecutor argued that defendant was not prejudiced by Clifford's statement because the trial court had admonished the jury to disregard it and there was no further mention of the prior incident. The trial court denied the mistrial motion, ordered a transcript of the related questions and answers on direct examination, and indicated that the issue could be revisited the following day.
B. Relevant Law
We apply a deferential abuse of discretion standard in reviewing rulings on motions for mistrial. (People v. Wallace (2008) 44 Cal.4th 1032, 1068.) "'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.]'" (Ibid.)
"[A] witness's volunteered statement can . . . provide the basis for a finding of incurable prejudice." (People v. Wharton (1991) 53 Cal.3d 522, 565.) But, when the evidence of guilt is strong and the allegedly prejudicial volunteered testimony is brief, ambiguous, or insignificant, a trial may properly conclude that no incurable prejudice occurred requiring a mistrial. (People v. Bolden (2002) 29 Cal.4th 515, 555.)
"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.'" (People v. Allen (1978) 77 Cal.App.3d 924, 935.)
C. Analysis
The trial court did not abuse its discretion in denying defendant's motion for a mistrial. Clifford's unsolicited comment that defendant had attacked him with knives on a prior occasion was brief and was followed by a "direct and pointed admonition regarding the volunteered testimony." (People v. Wharton, supra, 53 Cal.3d at p. 566.) We presume that the jury followed the trial court's instruction. (People v. Avila (2006) 38 Cal.4th 491, 574.) It follows that there was no incurable prejudice from Clifford's statement.
We express no opinion on whether Clifford's statement was inadmissible.
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In urging us to reverse, defendant argues that the trial court should have been "more vigilant in exercising its gatekeeping duty." We disagree. Despite defendant's argument to the contrary, the trial court never expressly excluded testimony regarding a prior incident between defendant and Clifford regarding the brandishing of knives. Moreover, there is no indication from the record that Clifford was going to say something objectionable. Rather, according to the reporter's transcript, the prosecutor was interested in testimony from Clifford regarding verbal threats by defendant. She asked: "Would this defendant ever say anything to you to try to intimidate you?" (Italics added.) Later, she followed up with: "What kind of threats did you hear?" (Italics added.) Neither she nor the trial court could have anticipated that Clifford would respond as he did. And, in any event, after Clifford blurted out unanticipated testimony, the trial court spoke to counsel and immediately issued a curative instruction.
Relying upon People v. Allen, supra, 77 Cal.App.3d 924, defendant further argues that because the instant case was a "close case," and the jury was "clearly underwhelmed" by the prosecutor's evidence, there is a "reasonable likelihood" that the outcome would have been different had Clifford not mentioned the prior incident. Again, we disagree. There was overwhelming evidence of defendant's guilt, namely Clifford's testimony that he was stabbed in an unprovoked attack while his back was turned from defendant and the corroborating physical evidence. The jury's acquittal on the attempted murder count does not compel the conclusion that the evidence of defendant's guilt on the assault charge was less than substantial.
It follows that we reject defendant's argument that this case mirrors the facts in People v. Bentley (1955) 131 Cal.App.2d 687, overruled in part in People v. White (1958) 50 Cal.2d 428, 431 and People v. Guerrero (1976) 16 Cal.3d 719, superseded in part by statute as stated in Harris v. Martel (S.D. Cal., Feb. 25, 2010, No. 09-CV-503) 2010 U.S. Dist. Lexis 17036 at page 10. Rather, the trial court's admonition "cured the prejudice [if any] engendered by Clifford's voluntary comment."
D. Due Process
For the same reasons, we conclude that defendant's right to due process was not violated.
Moreover, the only legal authority offered by defendant in support of this contention is federal and admittedly "not controlling." We thus have no basis to reverse. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J. We concur:
BOREN, P.
DOI TODD J.