Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA066314. Antonio Barreto, Jr., Judge.
Steven E. Moyer, 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, Daniel C. Chang and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Appellant Anthony Garcia (“Garcia”) appeals his conviction for one count of second degree robbery (Pen. Code, § 211) with a true finding that he personally used a firearm during the commission of the offense (§ 12022.53, subd. (b)). On appeal, Garcia contends that the prosecution improperly exercised two peremptory challenges in violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), and committed prejudicial misconduct in failing to instruct a witness not to testify about inadmissible evidence. Garcia also claims that the alleged instances of prosecutorial misconduct constituted cumulative error. For the reasons set forth below, we affirm.
All further statutory references are to the Penal Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On December 15, 2007, at approximately 11:00 p.m., Robert Montaro (“Montaro”) drove to his home in the city of Hawthorne. After parking on a residential street, Montaro remained in his car for a period of time while he worked on his laptop computer. His driver’s side window was partially open. The only personal possessions that Montaro had with him at the time were his laptop, cell phone, and wallet containing his driver’s license, ATM bank card, and $100 in cash.
Shortly after 11:00 p.m., Montaro heard footsteps running toward him and saw two men approaching his vehicle from behind. One of the men stopped and stayed across the street. The other man continued to approach Montaro’s car armed with a silver revolver in his hand. At trial, Montaro identified Garcia as the man who was holding the gun. Once Garcia was near the car, he opened the driver’s side door and demanded that Montaro “give him everything [he] owned.” Garcia then took Montaro’s laptop, cell phone, and wallet, and warned Montaro not to follow him. Garcia and the other man ran away in the direction of an alley.
Approximately two minutes later, Montaro saw Hawthorne Police Officer Erik Martin making a traffic stop on an unrelated matter. Montaro approached Officer Martin and reported that he had been robbed. Montaro initially described the suspect with the gun as a Hispanic man with spiky hair, approximately 25 years old, five feet six inches in height, 150 to 160 pounds in weight, and wearing a blue and white flannel shirt. He described the other suspect as a younger Hispanic man wearing a white t-shirt. Officer Martin broadcast a preliminary description of the two suspects and requested that other officers respond to the scene to handle the police report.
Within a few minutes, Hawthorne Police Officer Bradley Jackson and his partner arrived at the scene and met with Montaro for the formal police report. In his interview with Officer Jackson, Montaro described the suspect with the gun as a Hispanic man with a bald or shaved head, approximately 20 to 25 years old, five feet six inches in height, 160 pounds in weight, and wearing a blue and white flannel shirt. Montaro described the second suspect as a slightly shorter Hispanic man, but acknowledged that he never had a good view of him. Montaro reported that both men had robbed him. At trial, Montaro testified that he did not focus on Garcia’s hair, height or weight during the robbery, but “got a good look at his face.” According to Montaro, he paid particular attention to Garcia’s face and gun during the incident to get a sense of whether Garcia was likely to pull the trigger. Montaro testified at trial that he was 100 percent sure that Garcia was the person holding the gun.
After Montaro made the police report, he returned to his apartment. From his second-story window, he observed that a party was taking place at an apartment building across the alleyway. Montaro also noticed a man at the party wearing a blue and white flannel jacket, and upon seeing his face, Montaro believed that the man was the person who had robbed him. Montaro immediately called the police.
Approximately five minutes later, Hawthorne Police Sergeant Peter Goetz and other officers arrived. Upon approaching the apartment building where Montaro had seen the suspect, Sergeant Goetz observed Garcia and two other men standing at the top of a stairwell. The officers drew their weapons and ordered the men to put their hands up. All three men initially complied, but after a few seconds, Garcia dropped his hands, went inside a nearby apartment, and slammed the door shut. The officers ordered the occupants in the apartment to come out, and after approximately 10 minutes, nine individuals complied, including Garcia.
Shortly thereafter, the police arranged a field lineup in the alleyway with six to nine individuals from the apartment, including Garcia. Each of the men in the lineup was Hispanic. After being read a witness admonition, Montaro immediately identified Garcia as one of the robbers. He was unable to identify a second suspect. Garcia was arrested and placed in the back seat of a patrol car. At the time of his arrest, Garcia was approximately six feet tall and had short spiky hair.
With the tenant’s consent, the police conducted a search of the apartment where Garcia was arrested and recovered a loaded.9 millimeter semi-automatic pistol from the refrigerator and a loaded.38 caliber revolver from a kitchen drawer. Montaro later identified the revolver as the weapon used in the robbery. Officers also found Montaro’s laptop computer and cell phone in the kitchen area of the apartment. No latent prints could be recovered from the laptop, cell phone, or handguns.
Hawthorne Police Officer Thomas Heffner transported Garcia to the police station shortly after his arrest. Garcia was seated by himself in the back seat. Upon arriving at the station, Officer Heffner noticed a sock lying near Garcia’s feet in the patrol car, and inside the sock, he found Montaro’s driver’s license and ATM bank card. As Officer Heffner was examining the contents of the sock, Garcia exclaimed, “You got me.” While in police custody, Detective Port interviewed Garcia after obtaining a signed waiver of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). Detective Port’s supervisor, Sergeant Goetz, observed the interview via closed-circuit video from a separate room. According to Sergeant Goetz, Garcia admitted during the interview that he had robbed Montaro, but denied using a firearm. Garcia stated that he had simulated a handgun under his shirt during the robbery and that he had acted alone.
The custodial interview with Garcia was also videotaped, but the recording was not preserved due to a technical error.
Following a three-day trial, the jury found Garcia guilty of one count of second degree robbery, and found true the special allegation that he personally used a firearm during the commission of the offense. On September 25, 2008, the trial court sentenced Garcia to state prison for an aggregate term of 12 years, consisting of two years on the robbery conviction and 10 years on the firearm enhancement. On October 1, 2008, Garcia filed a timely notice of appeal.
DISCUSSION
On appeal, Garcia argues that the prosecution improperly exercised its peremptory challenges to exclude two African-American men from the jury panel in violation of his federal and state constitutional rights. He also contends that the prosecution committed prejudicial misconduct when it failed to admonish Sergeant Goetz prior to his trial testimony not to disclose his assignment as a gang intelligence officer, as the trial court had ordered. Finally, Garcia asserts that the alleged instances of prosecutorial misconduct amounted to cumulative error, requiring reversal of his conviction. We address each of these arguments in turn.
I. Peremptory Challenges
a. Relevant Proceedings
During jury selection, the prosecution exercised one of its peremptory challenges to excuse Prospective Juror No. 16, who had indicated during voir dire that his stepson currently was incarcerated on a probation violation. The juror also stated that he believed his stepson had been treated unfairly by the police, although he did not think it would influence his judgment in the present case. After the prosecution excused Prospective Juror No. 16, Garcia made a Wheeler motion, arguing that the prosecution had exercised two peremptory challenges against African-Americans on the basis of race. Defense counsel specifically stated as follows:
I would like to make a Wheeler motion at this time. I believe there’s a group of Black men, only two on the panel. Both were used as -- both were asked to be excused by the People, and I don’t believe either had any reason to show that they would not be fair in this matter. Even the most recent one, where he indicated he had an incident with his stepson, I believe it was, he did say that that was a completely separate matter, and he would have no problem being fair in this case at all. In fact, he was up front and explained his issue with the prior incident. I thought that was very forthcoming, but he still indicated he would be fair.
The trial court found that the defense had failed to state a prima facie case. While noting that the prosecution was not required to set forth the reasons for its peremptory challenges, the trial court advised the prosecutor that he could voluntarily make a statement if he wanted to do so. In response, the prosecutor stated that “[b]oth gentlemen indicated... an incident involving family members and criminal conduct or incarceration.” After defense counsel declined to make any further comment, the trial court denied the Wheeler motion.
Following the denial of the Wheeler motion, each side exercised two to three additional peremptory challenges and then accepted the jury panel. Juror No. 9 on the panel, a college student, had indicated during voir dire that he had an uncle who currently was incarcerated on an unknown charge, but he did not believe his uncle had been treated unfairly by the criminal justice system. Once the jury was empanelled, the trial court commented as follows:
Okay. All the jurors and the alternates have departed. The court wants to put on the record, since there was a Wheeler challenge made, that in our current jury composition Juror Number 9 is a young Black male. He’s a young man going to school in Boston, and against that juror the People exercised no challenge, and he was sworn as a member of the jury panel. [¶] That’s the only other comment I wanted to make regarding that. Either side may make any comment they wish further regarding the Wheeler matter that has already taken place, or make no comment, if that’s what you want.
Neither the prosecutor nor the defense counsel made any comment.
b. Applicable Law
Garcia first challenges the trial court’s denial of his Wheeler motion. The exercise of peremptory challenges to remove prospective jurors on the sole ground of group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing Wheeler, supra, 22 Cal.3d at pp. 276-277 and Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson).) “When a defendant moves at trial to challenge the prosecution’s use of peremptory strikes, the following procedures and standards apply. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 469.)
To state a prima facie case of discrimination, the defendant must (1) raise the issue in a timely fashion, (2) make as complete a record as feasible, (3) establish that the persons excluded are members of a cognizable class, and (4) produce evidence sufficient to permit the trial court to draw an inference that discrimination has occurred. (People v. Gray (2005) 37 Cal.4th 168, 186.) “‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (Ibid.) “When a trial court denies a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire. [Citation.]” (People v. Davenport (1995) 11 Cal.4th 1171, 1200.) “‘If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’ [Citations.]” (Ibid.)
“‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “‘with great restraint.’” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citations.]’” (People v. Lenix (2008) 44 Cal.4th 602, 613-614, fn. omitted.) We generally review the trial court’s denial of a Wheeler motion “deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).)
In this case, we conclude that the trial court properly found that Garcia had failed to establish a prima facie case. In arguing his Wheeler motion, Garcia asserted that the prosecution had exercised its peremptory challenges to excuse the only two Black males who were then in the jury box. However, our Supreme Court has cautioned under similar circumstances that “‘the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible.’” (Bonilla, supra, 41 Cal.4th at p. 343.) In Bonilla, the prosecution struck the only two African-Americans in a 78-person jury pool, but the Court nevertheless concluded that those challenges were not sufficient to support a prima facie case. (Id. at pp. 342-343.) As the Court explained, “‘“the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.”’ [Citations.]” (Id. at p. 343, fn. omitted; see also People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3 [“in the ordinary case... to make a prima facie case after the excusal of only one or two members of a group is very difficult”]; People v. Christopher (1991) 1 Cal.App.4th 666, 673 [“prosecutor’s challenge of one or two prospective jurors of the same racial or ethnic background as the defendant will not establish a prima facie case of impermissible group-based bias in the absence of other significant supporting evidence”].)
Moreover, the information elicited during voir dire demonstrated race-neutral reasons for excusing both prospective jurors. As the prosecutor explained, each of the prospective jurors had family members who were currently incarcerated or had suffered prior criminal convictions. “[A] prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution. [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107, 138.) Accordingly, “the use of peremptory challenges to exclude prospective jurors whose relatives and/or family members have had negative experiences with the criminal justice system is not unconstitutional.” (People v. Douglas (1995) 36 Cal.App.4th 1681, 1690; see also Bonilla, supra, 41 Cal.4th at p. 343 [no prima facie case shown where prosecutor excused prospective juror whose husband and father had suffered prior felony convictions]; People v. Gray, supra, 37 Cal.4th at p. 192 [no prima facie case shown where prosecutor challenged prospective juror who reported that someone close to her had been incarcerated]; People v. Cummings (1993) 4 Cal.4th 1233, 1282 [relative’s criminal conviction was a proper consideration justifying peremptory challenge to prospective juror].)
Garcia insists that the prosecution’s proffered reasons were spurious because one of the two challenged jurors -- Prospective Juror No. 16 -- stated that his stepson’s incarceration would not affect his ability to be fair. However, “[t]he fact that prospective jurors have indicated they could be fair and impartial does not suffice to establish a prima facie case.” (People v. Douglas, supra, 36 Cal.App.4th at p. 1690.) Furthermore, this same prospective juror also said that he believed his stepson’s arrest was the result of unfair treatment by his probation officer. Our Supreme Court has “‘repeatedly upheld peremptory challenges made on the basis of a prospective juror’s negative experience with law enforcement.’ [Citations.]” (People v. Lenix, supra, 44 Cal.4th at p. 628; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1124; People v. Turner (1994) 8 Cal.4th 137, 171, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn 5.) Garcia claims that the other challenged juror -- whom he identifies in his brief as Prospective Juror No. 2 -- never mentioned any family members with a criminal background. However, there is nothing in the record that demonstrates that when the parties were discussing the prosecution’s striking of two African-American men before the trial court, they were referring to Prospective Juror No. 2. Due to the parties’ use of peremptory challenges, several members of the jury pool had been seated in the jury box as prospective “Juror No. 2,” and at the time of the Wheeler motion, each side had excused two prospective jurors from that seat. The record also reflects that when the prosecutor explained to the trial court that both individuals in question had been excused based on their relatives’ criminal histories, defense counsel did not dispute this factual contention and declined to make any further comment. It was Garcia’s burden to make as complete a record as feasible to support an inference of discriminatory intent. (People v. Farnam, supra, 28 Cal.4th at p. 135.) Based on the record before us, we cannot conclude that Garcia produced sufficient evidence to establish a prima facie case.
Garcia contends that the trial court’s invitation to the prosecutor to respond to the Wheeler motion mooted its finding that no prima facie case had been shown. However, as the Supreme Court repeatedly has held, “[w]hen the trial court expressly states that it does not believe a prima facie case has been made, and then invites the prosecution to justify its challenges for the record on appeal, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied. [Citations.]” (People v. Howard (2008) 42 Cal.4th 1000, 1018; see also People v. Welch (1999) 20 Cal.4th 701, 746; People v. Davenport, supra, 11 Cal.4th at p. 1200; People v. Turner, supra, 8 Cal.4th at p. 167.) Indeed, “it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established. [Citation.]” (Bonilla, supra, 41 Cal.4th at p. 343, fn. 13.) That is what occurred here.
After hearing the basis for Garcia’s Wheeler motion, the trial court expressly found that Garcia had failed to establish a prima facie case. The court then stated that because no prima facie case had been shown, the prosecutor was not required to provide a response, but could voluntarily make a statement on the record if he chose to do so. The trial court never ruled on the issue of intentional discrimination in denying the Wheeler motion, but simply permitted the prosecutor to state the race-neutral reasons for the contested challenges without passing judgment on those reasons. Under these circumstances, the trial court’s finding that no prima facie showing had been made by Garcia was not rendered moot. (See People v. Hawthorne (2009) 46 Cal.4th 67, 79, fn. 2 [“Although the court asked the prosecutor for her reasons, the question whether a prima facie case has been made is not mooted, nor is a finding of a prima facie showing implied.”]; People v. Boyette (2002) 29 Cal.4th 381, 422 [“Although the trial court did not immediately rule on whether a prima facie showing had been made, it nevertheless asked the prosecutor for her reasons. As in other cases, we hold this did not moot the question of whether defendant had established a prima facie showing.”].)
Garcia also argues that the trial court erred in denying the Wheeler motion because it made no effort to evaluate the legitimacy of the prosecutor’s proffered reasons for his contested peremptory challenges. It is true that, once a trial court finds that a prima facie case has been shown and reaches the third prong of the analysis under Wheeler, it must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known.” (People v. Hall (1983) 35 Cal.3d 161, 167.) However, because the trial court in this case found that no prima facie showing of discrimination had been made, it was not required to engage in a third-stage analysis or to make findings related to the credibility of the prosecution’s reasons. (See People v. Hamilton (2009) 45 Cal.4th 863, 907 [“At the third stage of the Batson/Wheeler inquiry, ‘“the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible.”’”]; People v. Carasi (2008) 44 Cal.4th 1263, 1292 [The prosecution “was not obliged to disclose [its nondiscriminatory] reasons, and the trial court was not required to evaluate them, unless and until a prima facie case was made.”].) The trial court’s finding that Garcia had failed to state a prima facie case was sufficient to end the inquiry.
Garcia asserts that a discriminatory intent can be inferred from the fact that after his Wheeler motion was denied, the prosecution accepted two non-Black jurors with family members who had been incarcerated. However, a reviewing court need not engage in a comparative juror analysis when, as here, the trial court denies a Wheeler motion after concluding the defendant has failed to establish a prima facie case. (See People v. Hawthorne, supra, 46 Cal.4th at p. 80, fn. 3 [declining to subject prosecutor’s use of peremptory challenges to a comparative juror analysis in a “‘first-stage’ Wheeler/Batson case”]; Bonilla, supra, 41 Cal.4th at p. 350 [noting that “[w]hatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor’s proffered justifications for his strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution’s actual proffered rationales”].) In any event, the record does not support Garcia’s claim that these two jurors -- Juror Nos. 7395 and 6560 -- were similarly situated to the challenged Prospective Juror No. 16. Unlike Prospective Juror No. 16, both jurors indicated that they did not believe their incarcerated relatives -- a nephew in one case and a distant cousin in the other -- had been treated unfairly by the criminal justice system.
It is unclear from the record whether Juror No. 6560 was ultimately accepted as a member of the panel, but we will assume for purposes of our review that this prospective juror was seated.
Additionally, another prospective juror who ultimately was seated on the panel, Juror No. 6937, was a young Black man with an incarcerated relative, and he likewise stated that he did not believe his family member had been subjected to unfair treatment by the criminal justice system. As the trial court noted, the prosecutor’s acceptance of a jury panel containing a Black male juror provided further support for the conclusion that his use of peremptory challenges was not racially motivated. (See People v. Lenix, supra, 44 Cal.4th at p. 629 [“[t]he prosecutor’s acceptance of the panel containing a Black juror strongly suggests that race was not a motive in his challenge”]; People v. Reynoso (2003) 31 Cal.4th 903, 926 [“Although not a conclusive factor, ‘the passing of certain jurors may be an indication of the prosecutor’s good faith in exercising his peremptories....’”].) The trial court did not err in denying Garcia’s Wheeler motion.
II. Prosecutorial Misconduct
A. Relevant Proceedings
Prior to the start of testimony, the trial court granted Garcia’s motion to preclude any mention of gang activity by the prosecution’s witnesses. The court specifically ordered the prosecution not to present any evidence concerning Garcia’s connection to a criminal street gang or the testifying officers’ assignment to a gang enforcement unit. The court directed the prosecution to take whatever steps were necessary to ensure that none of its witnesses disclosed any gang-related evidence during their testimony.
On the second day of trial, Sergeant Goetz testified for the prosecution. At the start of the testimony, the prosecutor asked Sergeant Goetz to identify his occupation and assignment. In response, Sergeant Goetz stated that he was a sergeant for the Hawthorne Police Department and currently supervised the juvenile bureau and the gang intelligence unit. Defense counsel immediately objected and moved for a mistrial, arguing that the prosecutor had committed misconduct. The prosecutor admitted that he had failed to warn the witness not to mention his gang unit assignment in his testimony, but asserted that the error could be corrected with a prompt admonition to the jury.
After hearing the argument of counsel, the trial court denied the motion for a mistrial on the grounds that the prosecution’s improper inquiry was curable. The court thereafter struck Sergeant Goetz’ testimony regarding his assignment as a gang intelligence supervisor, and issued the following admonition to the jury:
Members of the jury, something has already taken place in the first answer that Sergeant Goetz has provided, and it’s caused a problem, and now I have to give you a very specific admonition and direct you to follow it. Here’s what’s happened: Sergeant Goetz, like many people in society, has, you know, a job that has different aspects to it. He has different things he does, and you’ve heard him describe a couple of those things.
Now, the problem is that in this case the prosecutor, Mr. Greenman, was to have instructed Sergeant Goetz not to mention, at any time, his -- one of his roles as a gang intelligence supervisor. The reason he was to have instructed him not to mention that is because this case has nothing whatsoever to do with any gang, or any suggestion of any criminal street gang. But the problem is if you, as jurors, hear that kind of information from the Sergeant, you start thinking that there must be some connection in this regard, and he wasn’t supposed to say it, and the District Attorney was to have instructed him not to say it. The D.A. didn’t do it, and, therefore, the Sergeant answered the question that was put to him, and said what he didn’t know he wasn’t supposed to say. This is the kind of stuff that happens in our world.
Now, here’s the problem as it goes: First of all, because there’s no connection in this case to any involvement of any criminal street gang related to anybody, that you’re not to consider that for any purpose at any time. There’s no evidence of it. It was inadvertent that job description was mentioned, and it has nothing whatsoever to do with this case. And the court is going to strike that part of Sergeant Goetz’s job description. The reason I’m striking it is because it has nothing to do with this case.
Later on, at the end of the case, you’re going to get a specific instruction essentially telling you what I just told you. That you’re not to consider for any purpose, at any time, any suggestion that there was any gang involvement of any kind in anything that happened in this matter, because there wasn’t, you know. It’s just one of those things.
So the court does strike the part of Sergeant Goetz’s testimony where he mentioned that as one of his job titles, as one of the things he does. The jury’s ordered to disregard that for the reasons that I’ve indicated. And now we’re going to proceed with further examination of the Sergeant to find out what he can tell us about what he did that night.
b. Applicable Law
Garcia contends that the prosecutor committed misconduct by failing to admonish Sergeant Goetz not to reference his gang unit assignment, as required by the trial court’s order. “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.) Misconduct may exist even in the absence of wrongful intent or bad faith. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Bradford (1997) 15 Cal.4th 1229, 1333.) However, reversal for prosecutorial misconduct is not required unless the defendant has been prejudiced thereby, that is “unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.) We review a trial court’s ruling regarding alleged prosecutorial misconduct for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
“It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.]” (People v. Crew, supra, 31 Cal.4th at p. 839.) If the prosecutor asks a question that is likely to elicit a reference to inadmissible evidence, the question may constitute “misconduct even if the prosecutor did not intend to elicit such a reference.” (People v. Leonard (2007) 40 Cal.4th 1370, 1405.) Therefore, “[a] prosecutor has the 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. Warren (1988) 45 Cal.3d 471, 481-482.)
Here, the parties dispute whether the prosecutor’s inquiry into Sergeant Goetz’s current job assignment constituted misconduct. The Attorney General asserts that the question itself was innocuous and was not aimed at eliciting any inadmissible evidence. However, the record reflects that both counsel and the trial court had anticipated that any references to gang-related activity were likely to arise in the testifying officers’ description of their job duties. The trial court thus expressly ordered the prosecutor not to conduct any inquiry into an officer’s assignment to a gang intelligence unit, and directed him to carefully craft his examination to ensure that no such information was voluntarily disclosed. Yet despite the trial court’s instruction, the prosecutor failed to admonish Sergeant Goetz to refrain from testifying about his role as a gang unit supervisor, and also failed to tailor his questions to guard against any inadvertent reference to gangs. The prosecutor’s conduct in this instance directly violated the court’s order.
We conclude, however, that the prosecutor’s conduct, although improper, did not amount to prejudicial misconduct under federal or state law. The single question about Sergeant Goetz’s current assignment did not constitute a pattern of conduct so egregious that it rendered the trial fundamentally unfair, and hence, it did not result in any federal constitutional error. (See People v. Prieto (2003) 30 Cal.4th 226, 260 [“prosecutor’s brief reference to an excluded witness... did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness”]; People v. Smithey (1999) 20 Cal.4th 936, 961 [prosecutor’s attempt to elicit inadmissible opinion evidence from an expert witness “did not amount to an egregious pattern of conduct that rendered the trial fundamentally unfair in denial of defendant’s federal constitutional right to due process of law”].) The prosecutor’s conduct was also not prejudicial under state law because it is not reasonably probable that Garcia would have obtained a more favorable verdict had the alleged misconduct not occurred. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard of prejudice to state law claim of prosecutorial misconduct].) The inquiry into Sergeant Goetz’s assignment was brief and isolated in nature, and the witness’s response that he supervised a gang intelligence unit related only to his identifying information. Sergeant Goetz never testified that Garcia himself had any gang affiliation.
Garcia argues that the prosecutor committed further misconduct in his questioning of Sergeant Goetz when he asked Sergeant Goetz if he knew the tenant of the apartment where Garcia had been arrested. Sergeant Goetz testified that he did know the tenant and had been in her apartment before. However, defense counsel never objected to this line of inquiry, and there was nothing in the testimony itself which would suggest that Garcia or the tenant had any connection to a criminal street gang.
The prosecutor’s conduct was also not prejudicial given the trial court’s timely admonition to the jury. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 [“only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm”].) Following Garcia’s objection, the trial court struck Sergeant Goetz’s testimony about his gang unit assignment, and promptly and thoroughly admonished the jury to disregard the testimony and not draw any inferences from it. In its admonition, the court explained that Sergeant Goetz had several job duties and that only one of those duties was serving as a gang enforcement officer. The court also made clear that the case had nothing whatsoever to do with gangs and that the jury was not to consider gang activity at any time for any reason. We presume that the jury followed that admonition. (See People v. Boyette, supra, 29 Cal.4th at p. 436 [no prejudicial misconduct where prosecutor arguably misstated the law because “the trial court properly instructed the jury on the law, and we presume the jury followed those instructions”]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury is presumed to have treated “the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].)
Garcia cites to People v. Glass (1975) 44 Cal.App.3d 772 (Glass) to support his contention that the prosecutor’s alleged misconduct could not be cured by an admonition. However, the Court of Appeal in Glass expressly declined to consider the prejudicial effect of a prosecutor’s misconduct in eliciting inadmissible evidence because reversal of the defendant’s conviction was required on other distinct grounds. (Glass, supra, at p. 782 [“in view of the reversal of the judgment on other grounds, it is unnecessary to decide if the error [of prosecutorial misconduct] would justify reversal in and of itself”].) Garcia’s reliance on Glass to show prejudice is therefore misplaced.
Garcia claims that the admonition alone was insufficient to cure the alleged misconduct because the prosecutor also asked the trial court to issue a limiting instruction, but the court failed to do so. Garcia misstates the record. During the parties’ discussion about Sergeant Goetz’s testimony, the prosecutor did not propose a jury instruction on the inadmissibility of gang evidence, but rather asked the trial court to issue a prompt admonition to the jury before resuming the witness examination. When the trial court informed the parties that it would issue an admonition as soon as the jury was called back in, defense counsel inquired about the possibility of a limiting instruction as well. The court indicated that if counsel wanted to propose an instruction, the court was willing to give it. However, at the conclusion of the trial when the court was ruling on jury instructions, defense counsel explained that he had decided not to request a limiting instruction on gang-related evidence. Given that the trial court invited defense counsel to propose a limiting instruction and counsel specifically declined to do so, the court had no sua sponte duty to issue one. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1052 [trial court had no sua sponte duty to give a limiting instruction on gang evidence where defendants failed to renew their request for an instruction at the appropriate time].)
Even assuming there had been error, reversal would not be required given the overwhelming evidence of Garcia’s guilt. The victim of the robbery positively identified Garcia as the perpetrator in a field lineup and later at trial. The victim’s laptop and cell phone were found in the apartment where Garcia was arrested, and the victim’s identification cards were found in Garcia’s sock following his transportation to the police station. Garcia exclaimed to one officer, “You got me,” as the officer was examining the contents of his sock, and confessed to another officer in a custodial interview that he had robbed the victim on impulse. In light of this evidence, it is not reasonably probable that Garcia would have obtained a more favorable result at trial absent the alleged misconduct.
III. Cumulative Error
Garcia last asserts that the alleged prosecutorial misconduct constituted cumulative error. In addition to the claimed errors addressed above, Garcia points to the prosecutor’s purported misconduct in making a late disclosure of his intent to introduce evidence of Garcia’s in-custody confession. According to Garcia, the prosecutor committed such misconduct when it failed to timely disclose that Sergeant Goetz had monitored Garcia’s confession to another officer and would testify about the confession at trial. However, based on the record before us, Garcia never moved to exclude this proposed testimony in the trial court, nor objected to its introduction on grounds of prosecutorial misconduct. Rather, defense counsel merely requested that the trial court issue a limiting instruction on the late disclosure of evidence, and the court gave the requested instruction. Garcia also does not raise this alleged act of misconduct by the prosecutor as a separate error on appeal, and no such error is apparent from our review of the record.
Finally, whether considered individually or for their cumulative effect, none of the errors alleged affected the process or accrued to Garcia’s detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565.) As our Supreme Court has observed, a defendant is “entitled to a fair trial but not a perfect one. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) In this case, Garcia received a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: WOODS, Acting P. J., JACKSON, J.