Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF210994. Paul A. Vortmann, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
Ardaiz, P.J.
Gregory Pina Montion appeals from a sentence of 20 years in prison for attempted voluntary manslaughter of his former girlfriend. On appeal, Montion contends that the trial court erred by using a system of referring to jurors by numbers, by denying a motion for mistrial when a prosecution witness mentioned that Montion was on parole, and by permitting read back of witness testimony during jury deliberations outside of his presence or of his defense counsel’s presence. For the following reasons, we affirm.
STATEMENT OF THE CASE
On December 10, 2008, the Tulare County District Attorney filed an information charging appellant with willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664) of victim Y.C. The information also alleged that appellant had personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a dangerous and deadly weapon (§ 12022, subd. (b)(1)), to wit, a knife. The information further alleged that appellant had suffered a prior conviction in 2003 for assault with a deadly weapon (§ 245, subd. (a)(1)), a serious and violent felony (§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)) following felony convictions in 1997 and 2003. On December 19, 2008, appellant pleaded not guilty and denied the special allegations.
All further section citations are to the Penal Code, unless otherwise stated.
On February 2, 2009, a jury was empanelled. During jury selection, the trial judge informed counsel that he would identify jurors by number instead of by names (the “number selection process”). Counsel for the parties, however, would have a list of the names of the jurors with the associated number next to it. Appellant objected pursuant to Code of Civil Procedure section 237, which generally provides that the names of qualified jurors should be made available to the public upon request absent a compelling interest. The trial court indicated that the press and public would be entitled to the names of the jurors on request. Defense counsel further objected that prospective jurors might want to know each other’s names. The trial court clarified that it was not prohibiting jurors from sharing their names among themselves. Finally, defense counsel suggested that the trial court’s procedure might cause the jurors to believe that they were at risk from appellant or his family. The trial court responded that it would explain to the jurors that it followed this procedure in every trial.
After the clerk called the first 18 prospective jurors into the jury box, the trial judge explained to the prospective jurors that he used the number selection process in every case. The trial court further stated, “I hope you’re not offended we’re going to use a number rather than your name. I often mispronounce names and that’s embarrassing to the Court.” The trial court then proceeded to use the number selection process and a jury was selected.
Before trial, defense counsel orally made “a motion to exclude that my client is a convicted felon or on parole in the -- in their case in-chief. Of course, if my client takes the stand, that may be a different issue.” The trial court granted the motion. However, during trial, when defense counsel cross-examined a police detective on whether the police had obtained a search warrant for appellant’s residence, the police detective answered, “Not a search warrant. But we did conduct a search of his residence. He’s on parole.”
Defense counsel moved for a mistrial but did not state the reason. The trial court overruled the motion, and told defense counsel that they would discuss it at the break. During the break, the prosecutor asserted that she had told the police detective “that we couldn’t bring up any issues of the defendant in gangs and we couldn’t bring up his past criminal history at all. I don’t recall if I actually used the word parole or not with him, whether or not he can mention parole, but, you know, did say about the prior criminal history.” After expressing some dismay, the trial court concluded that it would admonish the jury to disregard the police detective’s answer regarding the fact that defendant was on parole. The trial court did so immediately after the break, and reminded the jury about stricken testimony during jury instructions.
On February 4, 2009, jury deliberations commenced in the late afternoon. The next day, the jury reconvened in the morning. Both parties stipulated that the “court reporter may do a read back to the jury off the record.” Later the same day, the jury requested readback of the testimony of Y.C. Both parties entered the same stipulation. Read back of the testimony then occurred outside the presence of the trial judge, counsel, or appellant.
That afternoon, the jury found appellant not guilty of count 1, but found him guilty of the lesser-included charge of attempted voluntary manslaughter (§ 192, subd. (a), 664). The jury further found true the special allegations that appellant had personally inflicted great bodily injury and used a deadly weapon.
Appellant had waived his right to a jury trial on the priors. At a bench trial on February 20, 2009, the trial court determined that appellant had suffered the prior convictions as alleged in the information.
On March 23, 2009, the trial court denied appellant’s application for probation and sentenced him to prison for a total term of 20 years.
On April 16, 2009, appellant filed a timely notice of appeal.
FACTS
Y.C. dated appellant until Friday, September 26, 2008, when they broke up. The next day, appellant visited Y.C. at her house. Y.C. was at her home with her son, her mother, her mother’s fiancé, as well as a friend, Clarice Avila, and Avila’s son. Appellant stayed until evening, and even had some beer with Y.C. and Avila.
That evening, shortly before midnight and after Y.C. had put her son to sleep, she noticed that appellant was acting strangely. Appellant was sitting on the bed, but then he “was going in and out and then he was on the phone like every two seconds.” Avila also was in the room; she was on the computer playing on the internet. When Y.C. lay down next to her son, appellant tried to climb on top of her. After she pushed him off and told him to stop, appellant said, “We’ll see about that.” Appellant then went to the side of the bed, pulled out a butcher knife, grabbed Avila by the hair, put the knife to her throat, and said, “You’re first, bitch.” When Y.C. tried to leave the room with her son, appellant grabbed her and then started stabbing her. After stabbing her several times, appellant left the room, taking the knife with him.
Avila called the police. Appellant turned himself in to the police several days later.
Y.C. received stab wounds in her arm, her leg, her right side, and her chest. She suffered a laceration to her liver that was potentially life threatening. She underwent two surgeries and was hospitalized twice for a total of four weeks.
DISCUSSION
A. Number Selection Process
On appeal, Montion first contends that the trial court violated his federal due process rights and California statutory law by using the number selection process. Primarily, he contends that the number selection process contaminated his trial from the outset and implicated his constitutional right to a presumption of innocence because it “conveyed to jurors the impression that appellant was an individual who could not be trusted with the knowledge of their names.” We disagree that there was reversible error.
As the parties acknowledge, a similar claim of error was raised by the appellant and rejected by the reviewing court in People v. Goodwin (1997) 59 Cal.App.4th 1084 (Goodwin). In that case, the appellate court held that appellant’s right to a public trial was not violated by the use of a number selection process where “the court and counsel were not barred from access to juror identifying information.” (Id. at p. 1090.) The court also noted that the number selection process is “not fatally inconsistent with any statute and thus not invalid.” (Id. at p. 1091.) We agree with the conclusions of the Goodwin court.
Here, the number selection process did not violate appellant’s right to a public trial because counsel was provided with the names of the prospective jurors. Moreover, the trial judge explained to the prospective jurors that he used this number selection process in every trial. The trial judge also gave the further explanation that he used the number selection process because he was embarrassed about mispronouncing names. This explanation sufficiently obviates any prejudicial belief that the jurors may have that they would face any danger from appellant or his family. Furthermore, appellant has not presented a specific reason why he was prejudiced and, on this record, we cannot find that appellant was prejudiced by the use of the number selection process. (Cf. People v. Phillips (1997) 56 Cal.App.4th 1307, 1309 [finding no prejudice where defense counsel was not provided with the names of the prospective jurors].)
Thus, we conclude that there was no reversible error in the trial court’s use of the number selection process.
B. Prosecutorial Misconduct
Appellant next contends that the trial court erred in denying his motion for mistrial because the prosecutor committed misconduct when she failed to prevent the police detective from mentioning that appellant was on parole. We disagree.
“The standards governing review of misconduct claims are settled.” (People v. Friend (2009) 47 Cal.4th 1, 29.) “In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.” (Id. at p. 29 [internal quotations and citations omitted].) Even if we construe appellant’s motion for a mistrial as an objection based upon prosecutorial misconduct, we conclude that any misconduct was cured by the trial court’s admonishment to the jury to strike the police detective’s testimony. (See People v. Mickey (1991) 54 Cal.3d 612, 689-690, fn.17 [“The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.”].) Thus, any misconduct claim was not preserved for review.
Alternatively, we conclude that there was no prosecutorial misconduct. Here, the prosecutor told the police detective that he should not bring up the defendant’s criminal history and may have told the police detective not to mention that defendant was on parole. There is no indication that the prosecutor was attempting to use a deceptive or reprehensible method to persuade the jury that appellant was guilty. Thus, “the stricken testimony did not render the trial fundamentally unfair, nor did the prosecutor’s failure, if any, to prevent the testimony amount to ‘a deceptive or reprehensible method of persuasion. Accordingly, it did not constitute misconduct under federal or state standards.’ [Citations.]” (People v. Erickson (1997) 57 Cal.App.4th 1391, 1403 [holding that there was no prosecutorial misconduct in a case involving the failure of a prosecutor to prevent an expert from giving testimony in violation of a court’s in limine order].)
Therefore, we reject appellant’s claim that misconduct occurred.
C. Read back of Witness Testimony
Next, appellant contends that his federal constitutional right to be present at trial was violated when the trial court permitted read back of Y.C.’s testimony outside of his defense counsel’s presence. We disagree.
In People v. McCoy (2005) 133 Cal.App.4th 974, 982 (McCoy), this Court rejected a similar claim because we concluded that the trial court did not violate a constitutional right when it permitted read back of witness testimony over express defense objections. We noted that, although the Federal Court of Appeals for the Ninth Circuit has recognized such a right, the United States Supreme Court has never ruled on this issue. However, the California Supreme Court has never recognized such a right. (See People v. Horton (1995) 11 Cal.4th 1068, 1120-1122.) Here, there were no express defense objections but a stipulation that permitted read back outside of counsels’ presence. On this record, we conclude that the trial court did not commit any constitutional error.
D. Cumulative error
Finally, appellant contends that there was cumulative error. However, we have found no merit in any of appellant’s claims of error. “Accordingly, we find no cumulative deficiency in the trial proceedings sufficient to support reversal on that basis.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Hill, J. Poochigian, J.