Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F03220
Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant sold $20 of cocaine base to an undercover officer and a jury found him guilty of sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)). The trial court found true allegations that defendant had a prior serious felony conviction pursuant to Penal Code sections 667.5, subdivision (b); 667, subdivisions (b) through (i); and 1170.12. Sentenced to seven years in state prison, defendant appeals. He contends the trial court erred in denying his motion for a mistrial after a community service officer testified he took custody of a red bandanna. This testimony violated an earlier ruling that evidence that defendant had a red rag was not to be admitted into trial. We find the single reference to the red bandanna did not prejudice defendant and affirm.
FACTS
On March 28, 2007, Officer David Putnam was assigned to a walk-buy operation in the Oak Park area of Sacramento. As a plain-clothes officer he was to attempt to buy narcotics. He approached the Bonfair Market and was contacted by Londell Cobb, who asked what he wanted. Putnam told Cobb he wanted “some white,” slang for rock cocaine or cocaine base. Cobb said he knew where to get some and got in Putnam’s truck. They drove five blocks to an apartment complex. Cobb asked for money and Putnam gave him a $20 bill, whose serial number had been recorded. Putnam took Cobb’s wallet and necklace as collateral. Cobb returned without contacting anyone at the apartment complex, but told Putnam he knew somewhere else to go.
Cobb directed Putnam to 10th Avenue and 36th Street. Defendant approached the passenger side of the truck and asked what they needed. Cobb said “2 for $20”, which meant two rocks of cocaine base for $20. Defendant spit out two rocks wrapped in cellophane. When Cobb complained about the size, defendant said, “This is the bomb. Give it back then; I ain’t going to fuck around.” Defendant gave the rocks to Cobb and Cobb gave defendant the money. Putnam drove away and gave the predetermined bust signal. He dropped Cobb back at the Bonfair Market. Cobb wanted to smoke some of the cocaine base. Putnam told him no, but gave him two $1 bills that had been prerecorded.
Putnam relayed a description of both defendant and Cobb. Within half an hour, both of them were contacted by the police and their pictures taken. Putnam identified both men by the pictures. Putnam was positive of his identification of defendant, although he had not noticed defendant’s distinctive clothing. There were red bands on his shorts and red stripes on his shoes. Putnam also did not recall the distinctive tattoos on defendant’s forearms.
The $2 in prerecorded funds were found on Cobb. No pre-recorded funds were found on defendant. A member of the problem oriented police team testified it was not uncommon for drug sellers to get rid of funds, either by giving them to someone else or cashing them in at a store.
DISCUSSION
Background
Prior to trial defendant moved to exclude from evidence that when arrested he had $65, a cell phone and a red rag on him. The prosecutor had no objection to excluding the red rag and the court granted the motion as to only that item.
At trial, a community service officer testified to the chain of command of the seized evidence. When asked what items “of evidentiary value” he took custody of, the officer responded, “I took custody of two . . . pieces of rock cocaine that were packaged, a cell phone, a red bandanna, and the undercover-buy funds.” The court adjourned for the day after this testimony. Outside the presence of the jury the court admonished the officer to speak to the prosecutor about rulings that had been made. The defense objected to the officer’s testimony about the red bandanna and the “unmistakable” inference that defendant was involved in gang activity.
The next morning, the defense moved for a mistrial. The trial court denied the motion. It found the prosecution did not intentionally violate the court’s in limine ruling. The court had ruled the red bandanna was inadmissible because it was irrelevant, not because it established gang activity. The court ruled no evidence about gangs or the color red would be admitted.
Analysis
Defendant contends the trial court erred in denying his motion for a mistrial. He contends the evidence of the red bandanna was unduly prejudicial because it inferred defendant’s gang membership. He argues the trial court erred in focusing on whether the testimony was inadvertent rather than whether it was prejudicial. This testimony also affected the defense cross-examination of Officer Putnam. Defendant argues that pointing out that Putnam overlooked the red details on defendant’s clothing, when coupled with defendant’s possession of a red bandanna, further indicated defendant’s gang affiliation.
“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.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) While most cases involve prosecutorial or juror misconduct as the basis for a mistrial, a witness’s volunteered statement can provide the basis for finding incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565.) “Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis.” (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) We review the trial court’s ruling on the motion for a mistrial for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573.)
The parties agree the trial court’s ruling on defendant’s motion in limine to exclude evidence of the red bandanna was correct. The issue, therefore, is whether the inadvertent mention of the red bandanna was incurably prejudicial. We agree with the trial court that it was not. There was only a single mention of the bandanna; no other witness and neither attorney mentioned it. While evidence of gang membership may be prejudicial (see, e.g. People v. Cardenas (1982) 31 Cal.3d 897, 904), here the evidence did not unequivocally establish gang membership. The officer testified only that he collected the bandanna as evidence. He did not indicate from whom the bandanna was collected or its significance. There was no evidence that it was “ostentatiously displayed” as a gang sign.
This case turned on whether the jury accepted Officer Putnam’s identification of defendant as the seller. Strong arguments were presented on both sides. The defense argued the officer was mistaken, pointing out defendant had no drugs or recorded money and Putnam failed to notice several distinguishing features of defendant, both his clothing and his tattoos. The prosecution stressed the short time frame between the sale and the identification, Putnam’s certainty, and his correct identification of Cobb. The prosecution offered an explanation for the absence of the recorded funds and argued including the tattoos in the suspect’s description would not have aided finding the suspect on the street. In the context of the trial, the red bandanna played an extremely minor role, if any. The trial court did not abuse its discretion in denying the motion for a mistrial. (See People v. Rhinehart (1973) 9 Cal.3d 139, 152, disapproved on another point in People v. Bolton (1979) 23 Cal.3d 208, 213, [witness’s inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial].)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.