Opinion
2d Crim. No. B224370
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSE SALOME MOLINA, Defendant and Appellant.
Linda C. Rush, 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, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2008033895)
(Ventura County)
Jose Salome Molina appeals the judgment following his conviction for two counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).) Molina had been charged with those offenses as well as one count of an unlawful sexual act with a child. (§ 288.7, subd. (b).) He was acquitted of the unlawful act with a child offense. The trial court suspended imposition of sentence and placed Molina on five years formal probation including a condition that he serve one year in county jail. He contends the trial court erred by failing to grant a mistrial based on purported prosecutorial misconduct in eliciting irrelevant and prejudicial testimony. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS
In early August 2008, nine-year-old S. went with her mother Marisol G. and father to visit her maternal grandmother and grandfather, Laura G. and G.G. The visit was at a ranch in the City of Fillmore which was co-owned by the grandparents and Molina. Molina was 56 years old and married to Laura G.'s sister.
On the morning of August 5, S. went to feed the goats. Molina walked up to her, placed his hand down the back of her pants, and squeezed her buttocks. S. ran into the house. She heard her grandmother in the shower and later saw her grandmother and grandfather, but did not tell either about the incident with Molina.
Later the same day, S. went swimming in the ranch's pool. Molina got in the pool and asked S. if she wanted to learn how to swim. When S. said "no," Molina swam towards her and asked if she wanted him to tickle her bottom. S. was frightened. Molina then lifted S. to the surface of the pool holding her at her stomach and crotch. S. felt his fingers touching her where she would go "pee." The touching hurt her. S. got out of the pool and ran towards the house. She looked for her grandparents but could not find them.
Later, S. went out and helped her grandfather cut chiles. Molina walked up, bit her on her back, and made signs with his hands which frightened her. She began crying and told her grandmother about the incidents with Molina. At some point during the day, Molina threatened S., telling her he would kill her family if she revealed what had happened.
S.'s grandmother called her daughter Marisol, S.'s mother, and told her about the incidents. Marisol G. called a doctor and upon the doctor's advice called the police. Other family members were telephoned and drove to the ranch. S.'s grandfather confronted Molina who denied any wrongdoing.
The police arrived at approximately 11:00 p.m. that evening and interviewed Molina, S. and other family members. S. was examined by a "sexual assault nurse examiner" at 2:45 a.m. the next morning. The nurse observed redness on S.'s hymen and labia which the nurse stated in a report "may be caused by sexual abuse or other mechanisms."
The defense called an expert witness, Doctor Steven Gafaeff, who reviewed the report and photographs from the sexual assault nurse examiner's report. He opined that there were no findings in the report suggestive of sexual abuse. He also opined that the nurse's examination was incomplete and fell below the standard of care. Several of Molina's family members testified to his good character and that they had never seen Molina engage in any inappropriate acts with young girls.
DISCUSSION
Molina contends the trial court erred by failing to declare a mistrial when the prosecutor elicited irrelevant and prejudicial testimony from the victim's mother that Molina's daughter attempted to bribe her. We disagree.
"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, quoted in People v. Collins (2010) 49 Cal.4th 175, 198.) A mistrial is not required unless the defendant's "chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 282.)
Prosecutorial misconduct may constitute an appropriate basis for granting a mistrial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154.) "Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor . . . is not a constitutional violation unless the challenged action '"so infected the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Riggs (2008) 44 Cal.4th 248, 298; see also People v. Letner (2010) 50 Cal.4th 99, 169.) Although merely eliciting evidence is not misconduct, it is misconduct for a prosecutor intentionally to elicit inadmissible testimony. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)
During redirect testimony of Marisol G., the prosecutor initiated a line of questioning ostensibly regarding ownership of the Fillmore ranch. In response to questions, Marisol repeated her prior testimony that she had no ownership interest in the ranch and was unfamiliar with its ownership. Redirect then continued as follows:
Question: "Has anybody ever--in connection with this case, has anybody ever offered you any money?"
Answer: "Yes."
Question: "Who was that?"
Answer: "My uncle's daughter."
Question: "Your uncle, the defendant?"
Answer: "Yes."
After these questions were asked and answered, defense counsel moved for a mistrial. Among other things, defense counsel argued that the questioning was a deliberate attempt to imply consciousness of guilt on the part of Molina despite the prosecutor's knowledge that the daughter denied offering a bribe. The prosecutor argued that the questions pertained to Marisol's credibility and to the issue of Marisol's possible financial motive in pursuing the prosecution based on Molina's part ownership of the ranch in Fillmore. Defense counsel responded that the questions were irrelevant to Molina's ownership of the ranch.
After reviewing prior testimony regarding ownership of the ranch, the trial court ruled that the questions were irrelevant and struck the testimony. The court admonished and instructed the jury as follows: "And at this point, I want to advise the jury that the last question that was asked of this witness, the Court has made a finding that that question was an improper question as it didn't go to any issue that is relevant to any issue that is currently before this jury. That there is no evidence connecting Mr. Molina, the defendant in this case, with any offer of money to anyone in Marisol's family. And that if the daughter in question were called to testify, she would deny having made any such offer of money."
The trial court deferred ruling on Molina's motion for mistrial but stated that, if a mistrial was granted, it would not be with a finding that the prosecutor "intentionally did something to inflict error into the trial." The court later denied the motion for mistrial.
We conclude that the trial court did not abuse its discretion in denying Molina's motion for mistrial, or by finding that the prosecutor did not intentionally elicit irrelevant and prejudicial testimony. There is no basis in the record for this court to question the trial court's conclusion that any error or prejudice was curable by an admonition. Also, the admonition and instruction given to the jury was strong and unequivocal, including a statement that there was no evidence connecting Molina to any offer of money and that the daughter would deny the accusation if called to testify. Without evidence to the contrary, we assume the jury followed the trial court's admonition and disregarded the subject questions and answers. (People v. Bennett (2009) 45 Cal.4th 577, 612; People v. Martin (1983) 150 Cal.App.3d 148, 163.)
Furthermore, although an attempt to bribe Marisol by Molina would have raised an inference of consciousness of guilt, Marisol's brief and incomplete testimony regarding a bribe by Molina's daughter during a telephone conversation is a different matter. Molina was not implicated in the bribe attempt and it is doubtful that any reasonable juror would infer that Molina was implicated by his daughter's reference to an offer of money.
Moreover, for largely the same reasons, there was no abuse of discretion on ruling that the prosecutor's conduct was not an intentional attempt to elicit prejudicial evidence. In light of other testimony regarding financial motivations, we cannot conclude that the record establishes that the prosecutor knew the testimony was inadmissible. Even if the challenged questions went too far, there is no showing that the prosecutor, intentionally or otherwise, engaged in a pattern of egregious conduct rendering the trial fundamentally unfair under federal law or used reprehensible and deceptive methods to attempt to persuade the jury under state law. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284; People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
COFFEE, J.
Rebecca S. Riley, Judge
Superior Court County of Ventura
Linda C. Rush, 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, Steven D. Matthews, Supervising Deputy Attorney General, Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.