Opinion
D073609
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD STEVEN BISHOP, Defendant and Appellant.
Law Offices of Dennis P. O'Connell and Dennis P. O'Connell, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1300615) APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey Gunther, Charles E. Stafford, Jr., Dean Benjamini, and Samuel Diaz, Jr., Judges. Affirmed. Law Offices of Dennis P. O'Connell and Dennis P. O'Connell, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Ronald Steven Bishop of 12 counts of committing a lewd act with a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1); counts 26-37), eight counts of sodomy of a person under 16 years of age (§ 286, subd. (b)(2); counts 18-25), eight counts of oral copulation of a person under 16 years of age (§ 288a, subd. (b)(2); counts 38-45), five counts of sexual penetration of a person under 16 years of age (§ 289, subd. (i); counts 13-17), three counts of sodomy of an unconscious person (§ 286, subd. (f); counts 6-8), three counts of sexual penetration of an unconscious person (§ 289, subd. (d); counts 9-11), one count of sexual penetration of an intoxicated person (§ 289, subd. (e); count 12), one count of possession of child pornography (§ 311.11, subd. (a); count 5), one count of contacting a minor with intent to commit a lewd or lascivious act with a child 14 or 15 years of age (§ 288.3, subd. (a); count 1), and a misdemeanor count of annoying or molesting a minor (§ 647.6, subd. (a)(1); count 2). The court sentenced Bishop to a total of 43 years in state prison for the felony counts (counts 1, 5-45) plus 364 days for the misdemeanor (count 2) to be served at any penal institution.
All further statutory references are to the Penal Code unless otherwise stated.
Counts 3 and 4, involving an individual designated as John Doe 2, were dismissed prior to trial.
Bishop contends (1) the search warrant of his home was invalid and the court erred in denying his motion to quash and supplemental motion to suppress evidence, (2) there was insufficient evidence to convict him of count 1 for contacting a minor with the intent to commit a sex crime, (3) the addition of charges after the preliminary hearing constituted vindictive prosecution, (4) the court erred in denying his motion for mistrial after a police officer said one of the videos found in Bishop's home depicted Bishop having sex with a piece of fruit, and (5) the court erred in denying his motion for new trial because there was insufficient evidence to support eight convictions for sodomy (counts 18-25). We disagree with each of these contentions and we affirm the judgment.
BACKGROUND
A
1
In 2012, 15-year-old John Doe 1 took a high school course from Bishop. When John Doe 1 raised some personal issues during a class discussion, Bishop made a negative comment. Toward the end of class, Bishop gave a note to John Doe 1. Bishop's note said he was sorry for his comment and provided Bishop's phone number for John Doe 1 to call or text message Bishop about the incident.
A few days later, Bishop contacted John Doe 1 through social media. They began exchanging messages through social media and text. The frequency of the messages increased over time leading to messages throughout the day and "all the way into the night." Bishop asked John Doe 1 to delete the messages they exchanged on social media.
The conversations ranged from John Doe 1's relationship with his parents to sexually related topics. Bishop asked John Doe 1 to come over to Bishop's house and asked if John Doe 1 needed a ride. Bishop gave John Doe 1 a new video game for Christmas.
Bishop called John Doe 1 over to his desk during class one day. He asked John Doe 1 to provide urine for another student to use for a drug test because Bishop knew John Doe 1 did not use drugs and his urine would be clean. John Doe 1 provided the urine. Bishop later sent John Doe 1 a message asking if he gave the student the urine. When John Doe 1 said "yes," Bishop then asked John Doe 1 if he would give the student his sperm if John Doe 1 were asked to do so. When John Doe 1 said "no," Bishop asked why not since John Doe 1 would "do it every other day."
Bishop's messages with John Doe 1 began to discuss and offer advice about masturbation. Bishop asked about the size of John Doe 1's penis and whether he was circumcised.
Bishop told John Doe 1 his own son was "messed up" and Bishop felt closer to John Doe 1 than he felt to his own son. Bishop began calling John Doe 1 "son" and asked John Doe 1 to call him "dad." Bishop said he loved John Doe 1 as a son and John Doe 1 said he loved Bishop back.
Bishop does not have a son.
Bishop offered John Doe 1 a room in Bishop's house and asked John Doe 1 to live with him. Bishop said John Doe 1 would be able to have his own privacy. Bishop sent John Doe 1 pictures of Bishop's home and a picture of a bed John Doe 1 could use. In conversations about masturbation, Bishop told John Doe 1 he could use his own private bathroom at Bishop's house where John Doe 1 could take his time.
John Doe 1 told Bishop he was afraid of dolls as depicted in horror movies. Bishop said he would put dolls in the room he had for John Doe 1 to make John Doe 1 "wet your bed," but then said he would not want John Doe 1 to mess up his bed. Bishop said, "I have a better idea that's more evil." When John Doe 1 asked what it was, Bishop responded, "If I tell you, then it won't be scary now, will it?"
Bishop showed favoritism to John Doe 1 in class. He left food for John Doe 1 on John Doe 1's desk. John Doe 1 felt Bishop was more lenient toward John Doe 1 in grading, giving him As or Bs even though John Doe 1 was not good at public speaking.
John Doe 1 felt uncomfortable about the text messages with Bishop. Eventually, he reported them to law enforcement.
2
Witness N.D. also took a class from Bishop. Bishop asked for N.D.'s phone number during class. Bishop communicated with N.D. through text messages and social media.
Bishop called N.D. "Chiquita Gordita," meaning "my chunky girl." Bishop constantly suggested spending time with N.D. outside of class. Bishop invited N.D. to come to his house after school to play video games, garden, or eat. Bishop offered to adopt N.D. and said he could provide more than N.D.'s mother. When N.D. declined adoption, Bishop showed N.D. pictures of Bishop's house and kept bringing up adoption.
Bishop saw N.D. walking home and offered to give N.D. a ride. Bishop appeared offended when N.D. declined. Bishop also offered to take N.D. out to eat, which N.D. declined.
At some point, the relationship began to feel creepy. If N.D. did not respond to Bishop's text messages, Bishop said, "[T]hanks for the reply." Bishop once said, "I bet all you do at your house is jack off." Bishop texted N.D. during class and looked at N.D. seriously while Bishop was talking with other students. N.D. began skipping Bishop's class because he felt uncomfortable. Bishop commented it was not fair N.D. would skip class but would not go with Bishop. N.D. eventually spoke to law enforcement.
B
After receiving John Doe 1's report, police detectives downloaded text messages, call logs, photographs, and images from John Doe 1's cellular phone.
Pursuant to a search warrant, officers searched Bishop's residence in Indio. They collected CDs, DVDs, VHS tapes, desktop and laptop computers, digital hard drives for media storage, USB type devices, and video and still cameras.
In reviewing the VHS tapes, an officer noticed one in which a video of a child in an orange shirt appeared in the middle of a tape with recordings of sports shows or television reruns. The tape was marked with John Doe 3's initials, the at sign, and "3HR." The video was of a child showing his buttocks to the camera. Another video depicted Bishop orally copulating and digitally penetrating the same child as the child was sleeping.
There were numerous videos involving sexual activity between young boys, and young boys performing masturbation acts. An information technology computer forensic examiner for the district attorney's office located and compiled five videos from various media storage devices, which were compliant with a request for videos or photographs of young people in stages of undress or engaging in sexual activity.
Although only portions of the videos were shown to the jury, complete exhibits were available to the jury. Additionally, some of the photographs of potential child pornography were shown to the jury.
An officer ran a criminal history check on Bishop and discovered an out-of-state report. The officer contacted the out-of-state department to see if they could identify the child in the video, which turned out to be John Doe 3. A detective from California then went to interview John Doe 3.
C
John Doe 3 lives out of state. Bishop, who is 20 years older than John Doe 3, visited John Doe 3's family every summer when John Doe 3 was growing up. John Doe 3 also thought Bishop was his best friend. They talked on the phone during the school year when Bishop was in California. John Doe 3 thought he could talk to Bishop about anything.
At age 11, John Doe 3 became curious about his body and asked Bishop about sex. He felt comfortable with Bishop and trusted him. Bishop taught John Doe 3 how to masturbate by sitting next to John Doe 3, providing lubrication, and telling him what to do. Thereafter, Bishop participated by masturbating and orally copulating John Doe 3's penis. When John Doe 3 was 13 or 14, Bishop began digitally penetrating John Doe 3's anus while also masturbating John Doe 3's penis. Bishop introduced sodomy when John Doe 3 was 15 years old. As these events occurred, Bishop told John Doe 3 about the female and male anatomy as though he was providing a lesson or demonstration.
Bishop recorded the sexual acts with a video camera. John Doe 3 identified himself as the child in the videos recovered by police that showed John Doe 3's buttocks and Bishop orally copulating and digitally penetrating John Doe 3 as he slept. The videos were taken by Bishop when John Doe 3 was 10 years old during one of Bishop's out-of-state visits.
When John Doe 3 was 15 years old, he came to California to visit Bishop for three weeks in the summer. During the visit, Bishop performed sexual acts on John Doe 3 including masturbation and oral copulation of John Doe 3's penis, digital penetration of John Doe 3's anus, and sodomy. Bishop masturbated John Doe 3 approximately 12 times. Bishop performed oral copulation on John Doe 3 six to eight times. Bishop digitally penetrated John Doe's anus eight times. John Doe 3 recalled Bishop sodomized him four to six times.
Bishop provided John Doe 3 with alcoholic beverages to subdue John Doe 3's mind and motor functions. The alcohol acted as a tranquilizer or anesthetic, particularly to sodomize John Doe 3. It was easier for Bishop to perform sexual acts on John Doe 3 because John Doe 3 would not complain when he was under the influence of alcohol. On one occasion, John Doe 3 became severely intoxicated. Bishop photographed John Doe 3 when he was asleep and later showed him the picture. Bishop said John Doe 3 could barely walk and was slurring his speech.
A video taken during the California visit depicted Bishop digitally penetrating John Doe's anus while John Doe 3 was under the influence of alcohol. Another photograph and a video showed Bishop performing sex acts on him, including sodomy, when he was "knocked out cold." John Doe 3 had no memory of this incident.
John Doe 3 talked to out-of-state law enforcement officers when John Doe 3 was 17 years old after Bishop visited John Doe 3's home for the summer. John Doe 3 was angry when out-of-state law enforcement decided not to file charges. Three years after his initial report, John Doe 3 was contacted and interviewed by law enforcement officers from California.
DISCUSSION
I
Validity of Search Warrant
A
Prior to the preliminary hearing, Bishop moved to quash the search warrant and to suppress the evidence found during the search of his home contending the warrant was defective because it did not contain a date or location where it was signed. He also contended there were insufficient facts to support a conclusion that evidence of a crime of child pornography would be found. Bishop sought to traverse the warrant based on a sentence in the declaration referring to parties from another case.
The court denied the motions finding the search warrant met the required standards. The court found the officer swore before the judge who issued the warrant that the facts contained in the affidavit were true and correct and the affidavit met the required standard. The court found the inclusion of other names from another case in the declaration was a mistake. The court found it appropriate to excise the information, but, having done so, there was sufficient information for the warrant to issue properly.
Prior to trial, Bishop twice more challenged the validity of the search warrant and moved to suppress evidence based on the experience of the officer and the mistaken inclusion of other parties' names in the declaration. The court denied the motions.
Bishop reasserts these contentions on appeal. We conclude the court did not err.
B
"We defer to the trial court's express and implied factual findings if supported by substantial evidence, but we independently determine the legality of the search under the Fourth Amendment. [Citation.] Because courts accord a preference to searches and seizures conducted pursuant to a search warrant, 'in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.' " (People v. Eubanks (2011) 53 Cal.4th 110, 133.)
C
Section 1526, subdivision (a), provides a "magistrate, before issuing the warrant, may examine on oath the person seeking the warrant and any witnesses the person may produce, and shall take his or her affidavit or their affidavits in writing, and cause the affidavit or affidavits to be subscribed by the party or parties making them."
After interviewing John Doe 1, the detective obtained a search warrant to search Bishop's residence. The detective appeared and swore under oath before the judge who issued the search warrant that the information contained therein was true and correct to the best of his knowledge. The detective signed the affidavit, located at the top of the search warrant, stating he "swears under oath that the facts expressed by him in the attached and incorporated Statement of Probable Cause are true and that based thereon he has probable cause to believe and does believe that the articles, property, and persons described below are lawfully seizable pursuant to [section] 1524, as indicated below, and are now located at the location(s) set forth below." He also signed the attached declaration "[u]nder penalty of perjury." Thus, the court met the requirements of section 1526 by examining the detective under oath, taking his affidavit in writing, which he subscribed. (Doe v. Superior Court (2011) 194 Cal.App.4th 750, 754 [" ' "Subscribe" means "to sign with one's own hand" ' "].)
We are not persuaded by Bishop's contention an affidavit required under section 1526 in support of a warrant must also comply with Code of Civil Procedure section 2015.5, which requires the date and place of signature. Code of Civil Procedure section 2015.5 applies to unsworn statements or declarations made in place of a sworn statement or affidavit and gives them the same legal effect. (See People v. Nagel (1970) 4 Cal.App.3d 458, 461 [a penalty of perjury declaration may be used to support the issuance of an arrest warrant].) Code of Civil Procedure section 2015.5 has no application here.
Code of Civil Procedure section 2015.5 provides in pertinent part, "Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California." --------
D
" 'Probable cause to issue an arrest or search warrant must ... be based on information contained in an affidavit providing a substantial basis from which the magistrate can reasonably conclude there is a fair probability that a person has committed a crime or a place contains contraband or evidence of a crime.' [Citation.] As to the sufficiency of the affidavits, such 'affidavits "are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area." [Citation.]' [Citation.] 'Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed ... and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner. ... [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' " (People v. Richardson (2008) 43 Cal.4th 959, 989.)
Here, the declaration in support of the search warrant listed the detective's experience, education, and training. This included courses in identifying and handling evidence, courses in search and arrest warrants, and education about interviewing child victims. The detective stated he investigated hundreds of cases, including cases about sexual assaults and child molestation.
The detective's declaration included detailed information from his interview with John Doe 1 and the messages located on John Doe 1's phone. The declaration described how Bishop pursued a relationship with John Doe 1 by contacting him through social media and then through text message, buying gifts for John Doe 1 and another boy in class, calling John Doe 1 "son," and encouraging John Doe 1 to call him "dad." Bishop hugged John Doe 1 before a school break. The declaration described how Bishop sent messages to John Doe 1 at all hours of the day and night about masturbation. The declaration described the photographs Bishop sent of a bedroom he wanted John Doe 1 to use and the messages about how John Doe 1 could masturbate in his own bathroom. The detective described generally how criminals may store or share images or messages between phones and a main computer or tablet. He also described, based on his training and experience, how people who possess child pornography typically obtain and store images and videos on electronic devices.
The declaration concluded, "Based on my training and experience, and through my investigation, I know the suspect Bishop has a cellular phone and internet access which would lead to me [sic] believe he owns a computer, laptop or small notebook, (IPAD) type device in which he was communicated [sic] with my victim. Stored on these devices will be evidence of this crime of child annoying and evidence of messages pertaining to this investigation between Bishop and the victim."
In a paragraph about the habits of individuals who possess child pornography, one sentence mistakenly referred to names of individuals from another case. The detective admitted this was a mistake. The trial court concluded this erroneous information could be excised and the declaration still established probable cause. We agree. Innocent or negligent misrepresentations in an affidavit of probable cause are not sufficient to traverse a warrant. (People v. Scott (2011) 52 Cal.4th 452, 484.) Further, excision of the sentence with the improper names did not render the affidavit insufficient to establish probable cause. (Ibid., citing Franks v Delaware (1978) 438 U.S. 154, 155-156.)
The United States Supreme Court long ago reaffirmed "the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. [Citations.] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... [concluding]' that probable cause existed." (Illinois v. Gates (1983) 462 U.S. 213, 238-239.)
The description about the unusual nature of Bishop's relationship with John Doe 1, Bishop's interest in discussing sexual matters with John Doe 1 through electronic media, and Bishop's offer to John Doe 1 of a bedroom and bathroom in Bishop's home where John Doe 1 could masturbate, demonstrated a fair probability that evidence of a crime could be located on electronic devices. At a minimum, there was probable cause to believe evidence of the crime of child annoyance or contacting a minor with a sexual intent would be obtained on electronic devices. (See People v. Ulloa (2002) 101 Cal.App.4th 1000, 1007 [warrant upheld where defendant communicated with a minor by computer because it was "reasonable to assume that the computer would contain relevant incriminating information"]; People v. Shaw (2009) 177 Cal.App.4th 92, 103 ["there can be no normal sexual interest in any child and it is the sexual interest in the child that is the focus of the [§ 647.6, subd. (a)(1)]'s intent"].) This alone would be sufficient for the search and the discovery of child pornography would have been incidental to the other search. Nevertheless, we conclude the evidence presented along with the detective's experience also gave reason to believe there was a fair probability evidence of child pornography would also be found at Bishop's house. Therefore, the judge issuing the warrant had a substantial basis for concluding probable cause existed. The court also did not err in denying Bishop's third supplemental motion to suppress as procedurally barred by section 1538.5, subdivision (i). (People v. Bennett (1998) 68 Cal.App.4th 396, 405 [defendant entitled to only one full evidentiary hearing on a suppression motion].)
II
Sufficiency of the Evidence for Section 288 .3 Conviction
Bishop contends there was insufficient evidence he was communicating with John Doe 1 for a purpose enumerated in section 288.4 because he did not provide "obscene photographs of himself or others," he did not ask about John Doe 1's sexual preferences, and he did not ask John Doe 1 to "spend the night with him." We disagree.
" ' "When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.] In so doing, a reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.) We will reverse only if it appears " ' "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)
"Section 288.3[, subdivision] (a) prohibits contact or communication with, or attempted contact or communication with, a minor, or a person who reasonably should be known to be a minor, with the intent to commit an enumerated sexual offense involving the minor, including rape, sodomy, lewd or lascivious acts, oral copulation, forcible sexual penetration, or distribution, possession, or creation of child pornography. To establish a violation of this statute, a prosecutor must prove a defendant (1) directly or indirectly communicated with or attempted to communicate with a person, (2) with the intent to commit an enumerated offense involving the person, and (3) knew or reasonably should have known the person was under the age of 18." (San Nicolas v. Harris (2016) 7 Cal.App.5th 41, 46.)
Bishop undisputedly communicated with John Doe 1 who he knew was a minor. He discussed masturbation with John Doe 1 and asked about the size and appearance of John Doe 1's penis. He suggested John Doe 1 come to his home to masturbate. He also said John Doe 1 had a bed in his home and said he had something "evil" in mind. This was ample evidence to support a conviction under section 288.3 for contacting John Doe 1 with the intent to commit a lewd act, which is an enumerated offense. The touching necessary for conviction under section 288 for a lewd act with the intent of arousing or gratifying the sexual desires of the defendant or a minor " 'may be done by the child victim on its own person providing such touching was at the instigation of a person who had the required specific intent.' " (People v. Imler (1992) 9 Cal.App.4th 1178, 1182; see People v. Villagran (2016) 5 Cal.App.5th 880, 892 ["a defendant may commit the crime of attempt to commit a lewd act on a minor ... through the medium of text messaging"].) In addition, there was evidence of Bishop's intentions based on his communications with another student about masturbation and requests for the child come to his home, as well as evidence of what Bishop did to John Doe 3.
III
Vindictive Prosecution Claim
Bishop next contends his constitutional rights were violated because the prosecutor amended the charges against him after he exercised his right to a preliminary hearing. We disagree.
A
At the preliminary hearing, John Doe 3 testified he visited Bishop for three weeks before John Doe 3's 16th birthday. John Doe 3 said Bishop engaged in masturbation, oral copulation, and sodomy with John Doe 3. Bishop also digitally penetrated John Doe 3's anus. Bishop's counsel objected to questioning John Doe 3 about the number of times each act occurred as beyond the scope of the operative complaint and without proper notice. The court acknowledged multiple instances were not pleaded in the charging document. The prosecutor argued the People have a right to change or add to an information up to a jury trial as testimony provides. The court allowed the questioning.
John Doe 3 testified masturbation occurred up to 12 times during his visit with Bishop. Oral copulation and sodomy occurred eight times each during the visit. Bishop digitally penetrated John Doe 3's anus five times. Bishop also provided John Doe 3 with alcohol four times during the three-week visit. John Doe 3 became severely intoxicated to the point he fell asleep. John Doe 3 identified Bishop as the person in two videos sodomizing him as he was sleeping. John Doe 3 did not know this recording existed previously.
The court found there was sufficient evidence to hold Bishop to answer the charges as plead at the time of the preliminary examination. The court stated it would not allow an amendment to the charges at the preliminary hearing, but recognized amendments could be made thereafter.
Thereafter, the prosecutor filed an information charging 40 counts related to John Doe 3. Bishop moved to set aside the information pursuant to section 995 on vindictive prosecution grounds. The prosecutor opposed the motion explaining the case was initially under-filed because they could not confirm the identity of the victim in one of the videos in which Bishop is seen sodomizing an unconscious minor until the preliminary hearing, when John Doe 3 arrived from out of state and confirmed his identity in the video. The court denied the motion.
B
"Under the due process clause, prosecutors may not 'tak[e] certain actions against a criminal defendant, such as increasing the charges, in retaliation for the defendant's exercise of constitutional rights. [Citations.] ... [Citations.] In the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or ... the potential penalty. [Citations.] Rather, the defendant must "prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something the law plainly allowed him to do." ' " (People v. Grimes (2016) 1 Cal.5th 698, 736.) "While a defendant's exercise of some pretrial procedural right may present an opportunity for vindictiveness, 'a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule.' " (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544.)
Here, although the prosecutor commented Bishop could have "locked" the charges if he waived the preliminary hearing, there is no evidence of vindictiveness in amending the charges prior to trial after an out-of-state victim was able to identify himself being subjected to additional chargeable conduct. " 'A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct.' " (People v. Grimes, supra, 1 Cal.5th at p. 736.)
IV
Motion for Mistrial
A
During his testimony, the investigating detective was asked if there were other items of interest found in Bishop's residence during the search to establish Bishop's identity. The detective commented Bishop is seen in one video tape masturbating and having sex with a piece of fruit. The court sustained an objection based on relevance. Defense counsel later asked the court to admonish the jury. The court told the jury it had sustained an objection about other images and admonished anyone who heard the answer to disregard it.
The defense moved for mistrial stating the testimony of Bishop having sex with fruit was inflammatory and irrelevant. The court denied the motion saying it had admonished the jury.
Defense counsel said Bishop heard jurors talking about fruit and others laughing during a sidebar. Someone said, "that's deplorable." The police officer who was testifying did not hear the comment. The court denied the motion for mistrial and again admonished the jury. During closing statements, defense counsel raised the issue of an improper comment and again admonished the jury it was inappropriate to consider the comment.
B
Bishop contends the court erred in denying his motion for mistrial. We disagree. "Denial of a motion for a mistrial is reviewed for abuse of discretion and should be granted 'only when " 'a party's chances of receiving a fair trial have been irreparably damaged.' " ' [Citations.] The motion should be granted only if the trial court is informed of the prejudice and it judges the prejudice to be insusceptible of being cured by admonition or instruction." (People v. Panah (2005) 35 Cal.4th 395, 444.) " ' "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. Lucero (2000) 23 Cal.4th 692, 714.)
Here, the fruit comment was brief and the judge admonished the jury more than once. We presume the jury followed the instructions of the court absent any contrary indication. (People v. Gray (2005) 37 Cal.4th 168, 217.) We conclude the court did not abuse its discretion in determining the comment was not incurably prejudicial in the context of the entire trial.
V
Motion for New Trial
Prior to sentencing, Bishop's counsel moved for new trial as to counts 18 through 25 stating John Doe 3 was unsure how many times sodomy occurred in California. The court denied the motion. There was no error.
On appeal, we review a trial court's ruling on a motion for new trial under section 1181 for sufficiency of the evidence using a deferential abuse-of-discretion standard and will not disturb the ruling absent a manifest and unmistakable abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.)
Bishop acknowledges John Doe 3 testified at various points that Bishop sodomized him between five and eight times that he could recall. There was also video evidence Bishop repeatedly sodomized John Doe 3 when he was asleep. Given the totality of the evidence, we cannot conclude the court abused its discretion in denying the motion for new trial.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. O'ROURKE, J.