Opinion
D040820.
10-17-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID LEE RIVERS, Defendant and Appellant.
A jury convicted David Lee Rivers of evading an officer with reckless driving. (Veh. Code, § 2800.2, subd. (a).) The court placed him on probation for three years, conditioned on serving one year in jail. Rivers appeals, contending the court erred in denying his motion for mistrial based on the admission of improper evidence. We affirm the judgment.
The court convicted Rivers of having an open container in his car, an infraction for which he was not entitled to a jury trial. (Veh. Code, § 23222, subd. (a).)
FACTS
Around 2:00 a.m. on December 29, 2001, California Highway Patrol Officers Ronald Harris and Steven Zelasco saw a man, later identified as Rivers, erratically driving a silver Lexus and nearly causing a collision. The officers, in their marked patrol car, chased Rivers for about a mile and a half on the freeway. They activated the patrol cars emergency lights, sounded the sirens and demanded Rivers pull over. Rivers did not respond. The officers ran a license plate check on the Lexus and determined the car had not been stolen and Rivers was the registered owner with an address on El Cajon Boulevard.
The officers followed Rivers into a restaurant parking lot, which was well lit. As Rivers was getting out of his car, he made direct eye contact with Harris. Rivers got back in his car and sped away, reaching speeds of 110 miles per hour. He also drove on residential streets, weaving in and out of traffic. While the officers drove directly behind Rivers, they could see his eyes become wide with nervousness in his rearview mirror.
Rivers continued to drive at high rates of speed, nearly colliding with a truck and failing to stop at a red light. He threw two plastic bags filled with a white substance out of the cars sunroof. Eventually, Rivers drove onto a cul-de-sac and the officers followed him. As Rivers got out of his car, the officers had a clear view of him. They demanded he stop, but Rivers fled on foot into a ravine and over a fence. The officers noticed Rivers had a close haircut and mustache and was wearing a pair of glasses with yellow lenses.
The officers did not find the plastic bags when they later looked for them.
The officers returned to the Lexus and searched it, finding a flask with alcohol and a small amount of marijuana. A half-filled bottle of liquor was in the trunk. There were no keys in the car and no signs of forced entry. The officers found a flyer addressed to "Our neighbor, 5634 Dream Street." They also found business cards with Riverss name and the same El Cajon Boulevard address as that of the Lexuss registered owner.
The officers went to 5634 Dream Street and spoke to Rivers wife, Mary, who said he was not there. The house was near where Rivers left the Lexus. The next day, Harris spoke to Rivers on the telephone. Rivers said he had not contacted the police earlier because he was trying to clear things up regarding the Lexus. On January 10, 2002, Rivers went to the police station and was arrested. He was wearing the same pair of glasses with yellow lenses that Harris had seen him wearing on December 29, 2001.
At trial, Rivers testified he was not the driver of the Lexus on December 29, 2001. He claimed that on December 28, he left the keys in the ignition of the Lexus while he worked on it in his driveway. Later, he could not find the keys. He believed someone stole the keys and then returned to steal the car. Rivers did not report the missing keys to the police. He drove his Chrysler New Yorker to a bar on December 28. He and his friend, Gregory Dockery, were at the bar from 9:30 p.m. until 1:30 a.m., and then they went to Dockerys house where Rivers stayed until 5:30 a.m. Leverne Medeste testified she saw Rivers at the bar between 12:00 and 12:15 a.m.
A clinical psychologist testified on behalf of Rivers, discussing factors that affect the accuracy of eyewitness identification.
DISCUSSION
Rivers contends the trial court erred in denying his motion for mistrial based on the introduction of evidence that the officers were not allowed to enter Riverss home at the time they spoke to his wife. He asserts this impermissibly allowed the jury to speculate that he was hiding from the officers following the pursuit of the Lexus driver, thus bolstering the officers identification testimony. He further asserts this damaging evidence was not curable by instruction or admonition.
A
Before trial, defense counsel sought to exclude evidence that after the pursuit, the officers went to Riverss home where his wife refused to allow them to enter to search for him. The prosecutor argued the evidence was admissible as tending to prove Rivers was the driver of the Lexus. The court excluded the evidence on the ground it was hearsay and its probative value was outweighed by its prejudicial effect under Evidence Code section 352. The court ruled the officers could testify that they went to the address believed to be the residence of the registered owner of the Lexus and spoke to Riverss wife, Mary, but had no contact with Rivers. The court further told the prosecutor: "You may ask [the officers] whether they went into the residence, and they may answer no. And I want you to very carefully discuss with them beforehand the courts ruling, and I dont want them deliberately or accidentally dumping a lot of information before the trier of fact that the court has now ruled inadmissible."
At trial, the prosecutor asked Harris if, after speaking to Riverss wife, he went inside the home. Harris responded, "I was not allowed to." The court sustained defense counsels objection and admonished the jury to disregard the answer because it had no relevance to the case. The prosecutor again asked Harris if he went inside the home and Harris replied, "No." Defense counsel unsuccessfully moved for mistrial. The court explained that the answer was stricken, the jury was admonished to disregard it and the isolated incident did not warrant granting a mistrial. At the conclusion of the evidence, the court instructed the jury as follows:
"There was inquiry made of Officer Harris during his initial testimony concerning his actions subsequent to the pursuit. And there was a question asked of him, Did you go inside the residence, referencing the residence on Dream Street. You are instructed, as a matter of law, that the officers did not have any lawful authority to enter the residence, period, and youre to accept that as a correct statement of the law and otherwise applicable to the evidence in this case as it has been presented to you."
B
A motion for mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282; People v. Woodbury (1970) 10 Cal.App.3d 695, 708.) Stated another way, a mistrial should be declared if the court is aware of prejudice it judges incurable by admonition or instruction. (People v. Gurule (2002) 28 Cal.4th 557, 615.) 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. (Ibid.; People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) We review the denial of a mistrial motion under the deferential abuse of discretion standard. (People v. Silva ( 2001) 25 Cal.4th 345, 372; People v. Williams (1997) 16 Cal.4th 153, 210.)
Here, Harriss statement that he was not allowed to enter Riverss home was brief and isolated. The officers inability to enter the home did not necessarily cause the jury to speculate Rivers was hiding inside. Further, the trial court was entitled to find an admonishment would cure any possible harm to Rivers. (People v. Cooper (1991) 53 Cal.3d 771, 838-839.) By admonishing the jury to disregard Harriss statement as irrelevant, the court acted quickly to minimize any effect it may have had on the jury. To prevent any possible inference that the officers were refused entry because Rivers was hiding, the court further instructed the jury the officers had no lawful authority to enter Riverss home. Jurors are presumed to follow the courts instructions. We assume the jury properly followed the trial courts admonition and instruction, thus preventing any conceivable harm. (People v. Millwee (1998) 18 Cal.4th 96, 140; People v. Wash (1993) 6 Cal.4th 215, 263.) Therefore, the trial court could have reasonably concluded any potential for prejudice from Harriss stricken testimony was "so minimal that it was cured by the admonition and a mistrial should not be granted." (People v. Hayes (1999) 21 Cal.4th 1211, 1264.)
In any event, it is not reasonably probable a result more favorable to Rivers would have occurred absent Harriss statement. (People v. Watson (1956) 46 Cal.2d 818, 836.) Although Rivers challenged the identification testimony of the officers, both Harris and Zelasco identified him as the driver of the Lexus. They first saw his face in a well-lit parking lot. Rivers made eye contact with Harris and also looked directly at the patrol car for several seconds, permitting Zelasco to see him. The officers then saw Riverss eyes in his rearview mirror as they pursued him. When Rivers got out of his car, Harris and Zelasco had a clear and unobstructed view of his face. The jury was properly instructed on the factors to consider when assessing an eyewitness identification. (CALJIC Nos. 2.91, 2.92; People v. Wright (1988) 45 Cal.3d 1126, 1143-1144.) Any factual matter relevant to the weight to be accorded the identification was completely within the jurys province to resolve. (People v. Sandoval (1994) 30 Cal.App.4th 1288, 1298.)
Moreover, Riverss defense that someone stole the Lexus was not credible. Although he testified someone took the keys from the ignition on December 28, 2001, and later returned to steal the car, he never reported this to the police. On the night of the pursuit, the Lexus was abandoned seven houses away from Riverss house. Further, when Rivers went to the police station on January 10, 2002, he was wearing the same glasses the officers saw him wearing on December 29, 2001. From this evidence, the jury could reasonably find Rivers was the driver of the Lexus. The brief reference to the officers inability to enter Riverss home did not irreparably damage Riverss chances of receiving a fair trial. (People v. Ayala, supra, 23 Cal.4th at p. 282.) The court properly denied Riverss motion for mistrial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. and HUFFMAN, J.