Opinion
2d Crim. No. B227063
10-11-2011
THE PEOPLE, Plaintiff and Respondent, v. PATRICK IAN LOWE, Defendant and Appellant.
Gilbert W. Lentz, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 2007032362)
(Ventura County)
Patrick Ian Lowe appeals from judgment after conviction by jury of four counts of committing lewd acts on a child (Pen. Code, § 288, subd. (a)) and one count of dissuading a witness by force or threat. (§ 136.1, subd. (c)(1).)
All statutory references are to the Penal Code unless otherwise stated.
Appellant contends the court erred when it denied his motion for mistrial based on witness comments. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant sexually touched a 13-year-old girl while he was visiting her parents' home. She told police that, among other things, he put her hand on his pants and she could feel his erect penis. He threatened that he would hurt her if she told anyone.
Appellant testified at trial that he never touched or threatened the child. He also testified that he had a decreased sexual libido and was unable to get an erection because he was taking Effexor for "depression." He said he was also taking Lexapro for his "blood pressure" and Lamictal as a "mood stabilizer." He presented prescription records for his psychiatric medications and they were received into evidence without objection.
Appellant also presented the testimony of a psychiatrist, James Rosenberger, M.D., who testified that a side effect of Effexor is a decrease in sexual function. Dr. Rosenberger testified that it is a psychiatric medication that is used to treat "[m]ajor depression, a severe type of depression; a generalized anxiety disorder; social anxiety and panic disorder," among other conditions. He testified that the dose that appellant had been prescribed was in "the upper range of what the FDA and manufacturing approve for the medication."
In rebuttal, the prosecution presented testimony of psychiatrist Douglas Tucker, M.D., who testified that the dose was in the mid-range and that a novel sexual stimulus or preferred sexual partner can facilitate arousal in a person who is otherwise experiencing sexual difficulty due to Effexor.
While describing his professional background, Dr. Tucker said that he deals with dual diagnosis cases and focuses on addictions, "but I especially work with people similar to the defendant here today, who would have a mental disorder --." (Italics added.) The court sustained a defense objection to the comment and admonished the jury that "[t]he motion to strike the comment that was just made with regard to the defendant is stricken, that motion is granted, and I will further tell the jury that Dr. Tucker has not met with the defendant or had an opportunity to make a diagnosis, nor [do] I believe[,] been given any medical records. So please disregard that last statement."
The court denied appellant's motion for a mistrial based on the comment. It also denied his subsequent motion for new trial.
DISCUSSION
The trial court did not abuse its discretion when it determined that any prejudice that may have resulted from Dr. Tucker's characterization of appellant as suffering from a "mental disorder" was cured by the court's admonition.
A trial court should grant a mistrial if it is apprised of prejudice that it judges incurable by admonition or instruction. (People v. Wharton (1991) 53 Cal.3d 522, 565.) A witness' volunteered statement can constitute incurable prejudice. (Ibid.) The trial court has broad discretion to determine whether a particular incident is incurably prejudicial. (Ibid.) We review denial of a motion for mistrial under the deferential abuse of discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113.)
We first note that appellant mischaracterizes Dr. Tucker's testimony. He did not testify that appellant was bipolar, or even that he "was suffering from a mental illness similar to one suffered by [his] dual diagnosis, bipolar patients." Dr. Tucker testified that appellant had "a mental disorder." He testified that he treats patients with dual diagnosis and that he focuses on addictions, "but I especially work with people similar to the defendant here today, who would have a mental disorder --."
Appellant argues that Dr. Tucker's statement was prejudicial because it is of the type that jurors cannot put out of their minds. (People v. Anderson (1987) 43 Cal.3d 1104, 1122.) But appellant had already put his mental disorder in the jurors' minds when he testified that he takes psychiatric medications to treat his depression and to stabilize his mood. He presented a psychiatrist who testified that he takes a particularly high dose of a psychiatric medication that is designed to treat specific mental disorders: "[m]ajor depression, a severe type of depression; a generalized anxiety disorder; social anxiety and panic disorder." Dr. Tucker's statement that appellant has a mental disorder added nothing and could not have come as a surprise. To the extent that it created any prejudice at all, it was cured when the court advised the jury to disregard it and explained that Dr. Tucker had neither examined appellant nor reviewed his medical records.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Rebecca S. Riley, Judge
Superior Court County of Ventura
Gilbert W. Lentz, 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, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Alene M. Games, Deputy Attorney General, for Plaintiff and Respondent.