Opinion
C039464.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JASON ALOISUS GROVE, Defendant and Appellant.
Jason Aloisus Grove (defendant) was convicted by jury of four crimes: stalking in violation of a court order (Pen. Code, § 646.9, subd. (b)), making criminal threats (Pen. Code, § 422), violating a court order (Pen. Code, § 273.6), and making annoying telephone calls (Pen. Code, § 653m, subd. (a)). In a bifurcated court trial thereafter, the court found true an allegation that defendant had previously been convicted of vehicle theft. On appeal, defendant argues that the court abused its discretion in denying his motion for mistrial based on the erroneous submission of an improper verdict form to the jury. We conclude the trial court did not abuse its discretion in denying the motion for mistrial, and therefore affirm the judgment.
FACTS
Defendant and the principal victim, Heidi Altamirano, were married in September 2000. Two months later, Heidi moved out of the marital residence and into her parents home. Defendant began telephoning Heidi, sometimes over 100 times per day, with harassing, annoying, and threatening calls. As a result, Heidi obtained a temporary restraining order against defendant. The restraining order failed to stop the calls and threats, however, and sheriffs deputies were called out to take reports from Heidi on several occasions during the period from November 2000 to January 2001.
On Christmas Day 2000, defendant called Heidi 89 times while her family was gathered at her parents residence for the holiday. On one such call, Heidis sister answered the telephone, and heard defendant say: "Hey Heidi, I know youre there and Im going to kill you." It was this call which formed the basis of the criminal threats conviction.
Defendant denied making this statement. Defendant admitted calling Heidi, but minimized the number of calls and denied making threats. Heidis testimony and telephone records contradicted defendant.
Prior to trial the court had granted a defense motion to bifurcate trial on the charge that defendant had suffered a prior conviction of vehicle theft. Despite this ruling, on a number of occasions during trial, evidence was adduced that defendant had been on probation or parole and that he had a prior conviction for vehicle theft.
When the jury retired to deliberate in the first phase of the bifurcated proceeding, it was erroneously given a copy of a verdict form for the vehicle theft prior. The jury was perplexed. It sent a note to the court stating it had reached a verdict on the four charged counts, but that it did not know why it had been given the verdict form for the vehicle theft prior. Defendant moved for a mistrial. In denying the motion, the court observed that there was no prejudice to defendant since the jury had already been informed of the prior by way of testimony at trial. The court recalled the jury, informed it that the verdict form had been submitted in error, and asked for its verdict on the counts submitted. The presiding juror handed the guilty verdicts to the clerk.
The form included the case caption and number, and notation "VERDICT FINDING." It instructed the foreperson to sign only the finding upon which all twelve jurors agreed. The form gave the choice of two findings:
"We further find that the prior conviction of a violation of Section 10851 of the VEHICLE Code as alleged in the Information on file is true and further find that a separate prison sentence was imposed and that the defendant did not remain free of both prison custody and the commission of a felony offense for a period of five years prior to the commission of the current offense, within the meaning of Penal Code section 667.5(b).
"Dated: ________________________ FOREPERSON
"We further find that the prior conviction of a violation of Section 10851 of the VEHICLE Code alleged in the Information on file herein is not true, within the meaning of Penal Code section 667.5(b)."
"Dated: ________________________ FOREPERSON
The note stated: "We do not understand this form? Vehicle Code? Otherwise we have reached a verdict on 4 counts?"
DISCUSSION
On appeal, defendant argues his mistrial motion was erroneously denied. "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. 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." (People v. Wharton (1991) 53 Cal.3d 522, 565, 280 Cal. Rptr. 631, 809 P.2d 290, citations omitted.)
Defendant argues that the erroneous submission of the verdict form was equivalent to a misinstruction of the jury that affected the structural integrity of the trial process. Although he does not expressly request it, we presume defendant believes the error requires reversal unless ""it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error."" (People v. Nguyen (2000) 24 Cal.4th 756, 765, citations omitted [misinstruction reviewed under standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (17 L. Ed. 2d 705, 710-711, 87 S. Ct. 824)].)
We cannot agree with defendants assertion that the erroneous submission of the verdict form was equivalent to a misinstruction of the jury. The jury received proper instructions. What it also received was a verdict form submitted in error. This erroneous submission is much more like the erroneous admission of evidence than it is like misinstruction. Such error warrants reversal only if it results in a miscarriage of justice, that is, when the reviewing court, "after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Rains (1999) 75 Cal.App.4th 1165, 1170, citation omitted [erroneous admission of evidence reviewed under standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243].)
Defendant does not challenge denial of the mistrial motion with respect to the counts related to Heidi. Instead, he limits his challenge to the criminal threats conviction where Heidis sister was the victim. Defendant argues: "It is true that the stalking charge was supported at trial by phone records, testimony and admissions of the defendant. However, the Criminal Threats charge, which is a strike, was not supported by strong evidence. The evidence came down to the denial of the defendant weighed against the memory of the wifes [sic] sister. Moreover the sister had never heard defendants [sic] voice on the telephone. . . . Accordingly the erroneously introduced verdict form which contained information suggesting that defendant had been only recently released from prison, could well have contributed to the jury disregarding the denial of Defendant of the Criminal Threat. One can only speculate what part it paid [sic] in the deliberations and mind of the jury."
We are unpersuaded. While Heidis sister admitted she had not previously heard defendants voice over the telephone, she also testified that she had spoken with defendant before, and that she recognized his voice. Considering that Heidis telephone log indicated that defendant called the residence nearly ninety times on the day of the offense, we think the chances of misidentification were remote. As far as credibility, the victims sister was unimpeached, while there were repeated references to defendants prior record at trial. The trial record also included a number of references to defendants prior vehicle theft conviction. Therefore, the erroneously-submitted verdict form did not inform the jury of anything it did not already know. The form did not even specify that defendant had suffered a prior conviction; rather, the form purported to ask the jury that question. Furthermore, defendants suggestion that the form indicated he had been "recently released" is an overstatement, since the form asked the jury whether defendant had suffered a conviction for vehicle theft within five years of the present offense. In any event, the jury already knew this fact by way of the testimony at trial. We conclude that it is not reasonably probable that defendant would have received a more favorable result if the erroneous verdict form had not been submitted to the jury.
Defense counsel asked Heidis sister: "What makes you so sure that it was him on the phone if you hadnt talked to him on the phone?" She replied: "Probably because it sounded like his voice when I talked to him."
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., and DAVIS, J.