Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09HF0204, Patrick Donahue, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P.J.
A jury found Jeanne Mundongo Manunga guilty of falsely reporting to authorities that Bibo Mbedi and Banda Tulandamandosi made harassing telephone calls and sent threatening text messages to her, reports that ultimately led to the arrest and subsequent incarceration of Mbedi and Tulandamandosi.
On appeal, Manunga claims the trial court erroneously permitted the prosecutor to impeach her with a newspaper article for which no proper foundation had been laid. Manunga may have a point. Nevertheless, any error does not warrant a reversal of her conviction because the prosecutor’s use of the article did not result in the erroneous admission of evidence that resulted in a miscarriage of justice. (Evid. Code, § 353.) Simply stated, even assuming error, there is no reasonable probability of a more favorable result in the absence of any reference to the newspaper article. We affirm.
I
FACTS
In April of 2008, Manunga became acquainted with Bibo Mbedi during a time he was living with his brother and his sister-in-law, Tulandamandosi. The relationship turned sour within months, and Mbedi obtained a restraining order against Manunga. About a month after Mbedi obtained the restraining order, Manunga started to appear at various police departments complaining that she had received harassing and threatening text messages and telephone calls, purportedly from Mbedi and Tulandamandosi. Each time she appeared, Manunga had text messages from a phone number ending in 8345. A detective at the Costa Mesa Police Department conducted an initial investigation into her claims and determined that the 8345 phone number was registered to Tulandamandosi. As a result, misdemeanor charges were filed against Mbedi and Tulandamandosi. Ultimately, Tulandamandosi was arrested and spent the night in jail.
This, however, would not be the last time Tulandamandosi saw the inside of a jail. Manunga continued to complain of harassment and text messages from the 8345 number, which led to felony charges being filed against Mbedi and Tulandamandosi. Tulandamandosi was again arrested, and she spent four nights in jail on the felony charges.
Tulandamandosi apparently decided to retain an attorney, and this attorney provided the detective with additional information that rekindled the investigation. As a result of further investigation, the detective determined that it was Manunga herself who had purchased the offending cell phone, using Tulandamandosi’s name, and it was she who had sent the threatening text messages. The charges against Mbedi and Tulandamandosi were eventually dropped and Manunga was arrested.
Manunga was charged with two counts of felony false imprisonment with respect to Tulandamandosi (Pen. Code, §§ 236, 237, subd. (a)), one count of felony false imprisonment of Mbedi (§§ 236, 237, subd. (a)), and two counts of misdemeanor false reports of a crime (§ 148.5, subd. (a)) as a result of her activities.
All further statutory references are to the Penal Code unless otherwise stated.
At trial, Manunga testified on her own behalf. She denied purchasing a cell phone in Tulandamandosi’s name and denied sending the threatening text messages and/or making threatening telephone calls. Her attorney asked a series of questions concerning her new boyfriend from the Congo, Bienvenu Massamba. When asked about his family’s success, Manunga claimed Massamba’s younger brother was D.J. Mbenga, who “play[s] on the [Los Angeles] Lakers.”
On cross-examination, the prosecutor questioned Manunga about her relationship to D.J. Mbenga, including the number of siblings in the family. Manunga testified Mbenga had ten brothers and sisters, including her new boyfriend, Massamba. The prosecutor then produced a two-page newspaper article and asked to have it marked as an exhibit. The prosecutor handed the article to Manunga and asked, “[N]ow looking at the article that I gave -- that I put before you, is it, in fact, true that D.J. Mbenga who plays for the Lakers only has one sibling?” Defense counsel objected on grounds the prosecutor failed to lay an adequate foundation for introduction of the newspaper article, which the court overruled. The prosecutor continued, pressing Manunga for a “yes or no” answer. She answered that “[h]ere in [the] U.S. only one, the one who is permanent here in Texas.” She went on to explain that the definition of “family... is completely different” in the Congo. Nevertheless, the prosecutor, again referring to the unidentified article, stated, “it says there is one brother, period.” Defense counsel again objected on foundation grounds, which the court again overruled.
The clerk’s transcript states only that the article came from the Orange County Register.
Manunga attempted to explain the discrepancy by testifying, “Because here you guys’ relationship, you guys describe that different. You guys use brother. It is like the same person that was born in [the] same mother and same father. Like me, I call Banda aunt, but she is not my aunt. We are from the same country but I call her aunt. But if I present her to you or to another person I am not going to say, ‘This is Banda.’ I will say, ‘This is my aunt.’ [¶] But for American tradition, you are going to be like, ‘Oh, maybe she is her momma’s sister or either on her dad’s side.’ The way we — that is the way we go with relationship. [¶]... [¶] They can be — you guys call cousins but we call brothers.” The prosecutor asked a couple of follow-up questions and then moved on to another topic. The exhibit was not admitted into evidence.
Before closing arguments and out of the presence of the jury, defense counsel moved for a mistrial, arguing the prosecutor’s reference to the newspaper article was improper because “it [was] evidence presented to the jury as true and it lack[ed] foundation.” The prosecutor countered that it was “proper impeachment” because nothing was “admit[ed]... into evidence.” The court agreed with the prosecutor and denied the mistrial motion. In the alternative, the court offered to provide a limiting instruction to the jury. Defense counsel declined the offer because he did not want to “draw[] more attention to the article.” However, the court did instruct the jury that “‘[n]othing the attorneys say is evidence.... Their questions are not evidence.’” Defense counsel renewed the mistrial motion during jury deliberations, which was again denied.
The jury found Manunga guilty on all counts. The court suspended imposition of sentence and granted three years’ formal probation under various terms and conditions, including the condition Manunga pay restitution to Mbedi and Tulandamandosi.
II
DISCUSSION
Manunga argues the prosecutor’s use of the newspaper article for purposes of impeachment violated her right to a fair trial. Citing People v. Gibson (1958) 160 Cal.App.2d 535 (Gibson), she contends, “An article from a newspaper or magazine is not admissible for the purpose of impeachment without further foundation.” For reasons that are not at all clear from the record or the briefs, the Attorney General counters with an argument concerning prosecutorial misconduct, Manunga’s failure to object and consequential waiver of the issue, and the court’s proper denial of the defense mistrial motions. We find the assertion of this argument, an argument Manunga did not raise, of little value to the resolution of the case. Nevertheless, we agree with the single relevant part of the Attorney General’s brief, i.e., the analysis of prejudicial error.
In order to prevail on appeal, Manunga must establish that the court’s ruling on counsel’s foundation objection and subsequent denial of counsel’s mistrial motions that had been asserted on the same ground were errors of such proportion that the resulting trial was unfair and a miscarriage of justice. “[A] ‘miscarriage of justice’ should be declared only when the 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. Watson (1956) 46 Cal.2d 818, 836 (italics added.) On this point, Manunga fails to persuade.
To the extent this trial presented a credibility contest, Manunga’s testimony was repeatedly impeached. For instance, she testified that she had only received one traffic ticket when in fact, she has received several. An employee of the store where the cell phone was purchased identified Manunga as its purchaser, not Tulandamandosi. Two other store employees identified Manunga as the woman who claimed to be Tulandamandosi, and they stated it was Manunga who sought their advice on how to use the phone. In fact, the employees sent several text messages from her cell phone to a demo phone in the store, which confirmed that the origin of the harassing threatening phone calls and text messages was the cell phone Manunga purchased in Tulandamandosi’s name. Moreover, records of cell tower usage demonstrated that 646 of the 750 calls made from the 8345 number were made from areas near Manunga’s home and job, and 90 percent of the text messages were in English. Manunga testified on cross-examination that when she spoke with Mbedi and Tulandamandosi, they “always spoke in Lingala.” Thus, the jury had ample reason to reject Manunga’s testimony regardless of the prosecutor’s brief reference to a newspaper article and impeachment on a collateral topic.
Lingala is a language commonly spoken in the Democratic Republic of the Congo and Republic of the Congo.
Under the circumstances, it is not reasonably probable that she would have achieved a more favorable result in the absence of any reference to a newspaper article, proper foundation or not. (People v. Watson, supra, 46 Cal.2d at p. 836.) Moreover, we would reach the same result had the issue called for analysis under the more stringent beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S.18. In sum, Manunga received a fair trial.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., FYBEL, J.