Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA060444 Andrew Kauffman, Judge.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P.J.
INTRODUCTION
During appellant’s trial on an allegation of continuous sexual abuse, the prosecutor made a reference during a sidebar discussion to appellant’s “rap sheet” which was audible to some courtroom spectators. The defense objected and made a motion for a mistrial which the trial court denied. We hold that the motion was properly denied.
STATEMENT OF THE CASE
On April 3, 2006, the Los Angeles District Attorney filed an amended information charging appellant with continuous sexual abuse (count 1, Pen. Code § 288.5(a).) An extension of the statute of limitation was also alleged. (§ 803, subd. (d).) Appellant pled not guilty and denied the special allegations.
All further undesignated statutory references are to the Penal Code.
A jury trial was conducted and the jury found appellant guilty on the sole count of the amended information. Appellant was sentenced to the middle term of 12 years. Appellant was ordered to pay a fine of $1,000 (§ 1202.4, subd. (b)), and a $1,000 parole revocation fine was imposed and suspended. (§1202.45.) Appellant was given 157 days of presentence custody credit (137 days actual and 20 days conduct credits).
Appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Prosecution Case
“Mother” and “Father” were married and had two children, A. and “Victim.” When Victim was three years-old, the couple split up. When Mother split from Father, Mother and her two children moved to a residence in Redondo Beach, where they lived with Mother’s half-sister, Maria, and her two children. Appellant was Maria’s father, Mother’s stepfather and Victim’s “grandfather.” After one year, in 1993, Mother and her children moved into a one-bedroom apartment in Torrance. Victim was between four to four and one-half years old. Appellant lived with Mother and her children because Mother needed help to watch Victim. Mother and Victim slept in the bedroom and appellant slept on the couch in the living room.
Mother worked seven days a week from 7:00 a.m. to 5:00 p.m. as a waitress in a restaurant. Appellant took care of Victim when Mother was gone. He picked her up from daycare or school, fed her dinner and gave her baths.
The first instance when appellant touched Victim inappropriately occurred when she was approximately five years old. Appellant touched Victim’s vaginal area over her clothing. Victim was scared, but did not say “no.” At this time, her mother had never talked to her about what to do if someone touched her private parts. Appellant did not say anything and Victim couldn’t tell if it was intentional. It happened again the following day, and seemed intentional.
After this, appellant began touching Victim’s vaginal area two to three times per week. Appellant also rubbed Victim’s vagina. This would occur when they were home alone, usually around 4:00 or 5:00 p.m. Sometimes when Victim came out of her bath and while she was naked, appellant touched her vagina and chest. As Victim began to develop breasts, appellant started to touch her there more. Victim was scared and did not want appellant to touch her. Appellant told Victim not to tell anyone what he was doing and that Victim was his favorite granddaughter.
Between the time she was five and one-half and seven years old, appellant touched Victim about 1,000 times. Appellant also had Victim touch his penis and force her to “jack him off.” Victim estimated that appellant made her masturbate him “a lot of times.” Appellant ejaculated when Victim masturbated him. He would push her aside and run into the bathroom. Appellant would also force Victim to sit on him and face him. Appellant rotated Victim around. She felt his penis and it was hard. Appellant also rubbed his penis against Victim’s vagina.
During these events, no one was in the apartment. Victim did not tell appellant that she wanted to stop doing the things that he was making her do because she did not know any better. Every time appellant came into Victim’s room he would abuse her.
Approximately one year later, Mother and her children moved into a two-bedroom apartment in the next complex. Victim still shared a room with her mother. Mother never hired a babysitter because she trusted appellant.
When Victim was seven years old, appellant put his tongue inside her vagina. Appellant asked Victim to lick or put her mouth on his penis, but she refused. Appellant stopped putting is tongue in Victim’s vagina when she began to menstruate at age 11.
When Victim was nine years old, they moved again to a house in Torrance. Victim had her own bedroom. A. converted the garage into his bedroom. Victim developed breasts when she was nine years old. Appellant caressed her breasts. During the summer months, appellant took care of Victim.
Mother’s stepbrother, Gus, and his girlfriend and three sons moved into this home and stayed for three to four months.
Victim’s father, Father, used to visit Victim once a month. Twice he asked Victim about appellant, asking “Does that old man touch you in any way you don’t want? Does he make you feel uncomfortable.?” Victim never told her father about the abuse because appellant told her not to tell anyone.
The abuse stopped when Victim was 11 years old. One day, appellant asked Victim to masturbate him and she said “No,” and ran to a friend’s house. Appellant eventually moved out of the house and Victim and her mother moved to an apartment in El Segundo. During the period when appellant abused Victim, Victim had low self esteem and did not feel very good about herself.
In August 2004, Victim told her best friend Jacob (19 years old), that appellant abused her. Jacob was the first person she told about the abuse. Mother had hired Jacob to work at the restaurant. Jacob had never met appellant. Victim told Jacob that appellant had molested her from ages of five to eleven. She said that appellant had touched her, undressed her, made her touch him and put his mouth on her vagina. Victim started crying. Jacob became very angry and told Victim to tell her parents, or the authorities, or he would tell her parents.
Jacob called Mother and told her that she needed to talk with Victim about a “serious situation.” When Mother arrived home, Victim told her mother about the abuse. Mother got very upset and started to cry. Mother believed her daughter, but did not call the police because she was in shock.
On December 11, 2004, Father went to Victim’s house for dinner. Victim told her father about the abuse. She said that appellant had touched her private parts and made her “touch his thing.” Father became very upset and called the police. The following day, Victim’s mother and father took her to the Torrance Police Department where she was interviewed by a police officer.
On December 14, Torrance Police Detective Richard Carr interviewed Victim. Detective Carr also interviewed Mother, Father and Jacob and connection with this case.
During the investigation, Victim made a “pretext phone call” to appellant. Detective Carr gave Victim some general questions to ask appellant during the call. Detective Carr said that a pretext phone call was made in “almost every case” where a suspect was named.
A tape recording of the pretext phone call (Peo. Exh.1) was played in court.
A transcript was given to the jury to follow along when the tape was played. The excerpts of the phone call are from the transcript.
[Victim]: But um, you know, I do want to know something.
[Appellant]: Huh?
[Victim]: I want to ask you something.
[Appellant]: Yes.
[Victim]: Ok, do you remember when I was little?
[Appellant]: Huh?
[Victim]: Can you hear me?
[Appellant]: Yeah.
[Victim]: Ok, do you remember when I was little and we used to live in the apartment?
[Appellant]: Yeah.
[Victim]: Why did you used to touch me?
[Appellant]: [Victim], I don’t want to do that . . . I told you to stay away from me you know?
[Victim]: What?
[Appellant]: I told you not to come close to me, you know? I told you I don’t want to touch you baby.
[Victim]: Like, did you want me to come close to you or something?
[Appellant]: No, no.
[Victim]: It wasn’t my fault.
[Appellant]: Huh?
[Victim]: It wasn’t . . . was it my fault or something?
[Appellant]: I don’t know honey, I don’t know, I’m so sick I can’t even think right now, you know?
[Victim]: I know, but . . .
[Appellant]: Uhh.
[Victim]: But I would really, really like to talk about this cause it upsets me.
[Appellant]: Ahh, ahh.
[Victim]: I’m not going to tell anybody else, you know?
[Appellant]: Ahh, yeah, [Victim], I don’t want to do anything to you . . . I just wanna touch you . . . I don’t want any harm to . . . I don’t want anything, you know? I want you to be nice, uh, and I want you to be healthy and be something, someday you will be, anyway, you know?
[Victim]: I know but you didn’t make me healthy . . . do
[Appellant]: Huh?
[Victim]: You didn’t really, like . . .
[Appellant]: I don’t even want anything . . . [Victim], you know . . . I only touch, you know [] and that when I say go away you know . . . all the times, uh . . .
[Victim]: Why wouldn’t you tell me to go away?
[Appellant]: Uhh.
[Victim:] If you knew that wasn’t right.
[Appellant]: Uhh . . . uhh . . . so anyway, I need to . . . I haven’t done anything bad . . . I don’t think you’ve done anything bad either, you know . . . the only thing you know.
[Victim]: But are you sorry?
[Appellant]: Ohh, my god, yeah, uhh, yes . . . I’m thinking sometimes, yeah, sure, you know . . . uhh . . . telling you know somebody, but I don’t want to tell anybody . . . you know.
[Victim]: I’m not going to tell anybody, but you know it was wrong.
[Appellant]: I know it but I’m not going . . . forgive me for that [ ] you know, o.k.? Ok [Victim]?
[Victim]: Umhum.
[Appellant]: Yeah . . . uhh . . . I want you to be happy and be healthy and uh, you go to you . . . do you go anymore to the . . . uhh . . . how you call.
[Victim]: They still . . .
[Appellant: Traditions.
[Victim]: Well, uh, I want to stay on this topic, you know like.
[Appellant]: Uhuh.
[Victim]: It’s, this like is going to be me closure I guess, you know?
[Appellant]: Huh, I can’t hear you [Victim].
[Victim]: I said this, like talking about it, is going to bring me some closure so . . . I mean.
[Appellant]: Good, ok.
[Victim]: It’s gonna like, like put, you know what I mean, um but, like you know that.
[Appellant]: Uhuh.
[Victim]: Like me touching you wasn’t cool right?
[Appellant]: Uhuh.
[Victim]: Wasn’t, wasn’t right.
[Appellant]: Yeah.
[Victim]: It’s not normal.
[Appellant]: Yeah, I know … [Victim] … I know, but you ok right?
[Victim]: Uhum.
[Appellant]: You alright, I’m so glad.
[Victim]: I’m getting better.
[¶]. . . [¶]
[Victim]: Tell me that you won’t, you will never do that again.
Appellant] No, [Victim], no, not such a thing, you know, not even think it, you know.
[Victim]: You won’t make me ever touch you again, right?
[Appellant]: Huh?
[Victim]: You won’t make me touch you again, right?
[Appellant]: Huh?
[Victim]: No . . . no [Victim] . . . no no no . . . no.
[Victim]: And you’re sorry you made me touch you?
[Appellant]: Yeah, very sorry, you know, I am, you know, yeah, you know.
[Victim]: You’re sorry that touched me too?
[Appellant]: Yeah, yeah, I’m sorry, very, very, very, very sorry you know, but I don’t want to tell anybody, you, cause I don’t have . . . I don’t, I can’t explain to you … [Victim], you know? Uhh.
[Victim]: Umm, are you sorry that you used to like . . . kiss me down there?
[Appellant]: Ohh, yeah, very, very sorry, you know? Sometimes it’s . . . uhh . . . a lot of times to avoid, you know, go away, go away, uhh.
[Victim]: What, what are you talking about?
[Appellant]: Lot of times, you remember when I told you, said don’t come close to me . . . go away . . . not because I don’t like you . . . cause . . . I don’t want you to touch me or to touch you.
[Victim]: What?
[Appellant]: I don’t want you to touch me . . . you remember what I told you lot of times . . . I said go away [Victim].
[Victim]: You never told me that . . . .
[Appellant]: Yeah.
[Victim]: No, no way, no way I would do that . . . I didn’t even want you to be around me.
[Appellant]: Ahh, ok [Victim], alright . . . alright.
[Victim]: Just tell me your [sic] sorry and I’ll just . . . just forget about it.
[Appellant]: I . . . I’m very, very sorry, I tell you the truth, you know?
[Victim]: And you won’t ever do that again?
[Appellant]: Never, no, no [Victim], no.
Mother testified that she took Victim to the doctor as necessary, attended parent/teacher conferences as scheduled. There were never any signs that anything was amiss. Victim’s grades were all right until fourth grade, although Victim was never a good student. Mother had known appellant since she was two years old and described their previous relationship as “beautiful.” Appellant never molested Mother. From 1995 to 2001, Mother was aware that appellant had lung disease, as well as problems with his stomach and his knees, eventually requiring knee surgery. Appellant also took depression medication.
Defense Case
Appellant testified in his own defense. Appellant was 75 years old at the time of trial. Appellant spoke to his family in both English and Greek. Appellant had surgery for a hole in his lung in 1959. He said that the lung ailment currently affected him. Appellant had two operations on his stomach – one in 1975 and the other in 1996. He was also on medication for a heart problem. Appellant also had a kneecap replacement operation. Appellant suffered from depression from 1995 and 2004. His depression was greatest in 1998 when he lost his daughter Cheryl. Appellant loved Mother and Victim. Appellant took care of Victim.
Dr. Edward Bold was treating appellant for obstructive lung disease. Appellant had been Dr. Bold’s patient since 2001. Dr. Bold said that appellant was in very good health in July 1998. Appellant spoke English, but Dr. Bold had difficulty understanding him. Dr. bold said that appellant tended to “ramble a bit.”
Appellant testified that he never molested Victim between 1995 and 2001. Appellant never took off Victim’s clothes.
When Mother moved into an apartment on 180th Street, Mother asked appellant to come and live with them. Initially, appellant said “no.” Later, Mother asked appellant to help her with child care.
Appellant and his ex-wife, Margaret, were married for 25 years. Margaret was Mother’s biological mother and Victim’s biological grandmother. Margaret never saw appellant do anything that would lead her to believe that he liked “little girls” sexually.
Appellant was Maria’s father. Maria was a registered nurse. Appellant spoke better Greek than English. Appellant had a lung condition and problems with his stomach and knees. Mother was Maria’s half-sister. Victim was Maria’s niece.
In 1995, Maria and her two sons lived with Mother and her family. Maria never saw anything that would lead her to believe that appellant molested Victim.
At some point in 1995, Victim and her family moved a couple blocks to 180th Street in Torrance. Appellant moved in with Victim and her family. In 1995, Maria and her family moved to 182nd Street, two blocks away from Victim.
Maria visited Mother on a regular basis. Maria and Mother kept an eye out for each other’s children. Victim never said that she did not want to be near appellant. Victim looked and acted like a happy child. Maria said that appellant never behaved like a child molester.
In 2000 or 2001, appellant’s son, “Gus” lived with his half-sister Mother and her children. In 2004, Gus noticed appellant’s physical condition deteriorating. Gus said that appellant’s “mental condition ha[d] been going for awhile.” Appellant was not responsive and mumbled most of the time. Appellant never walked around the house in his boxers and was always dressed.
In 2000, Maria and Melissa S. applied for and received a license to run a daycare business. Anyone over 18 years old had to be fingerprinted. Appellant had to sign the application. In 2001, Dimitri had to sign the application. Dimitri did not recall signing the application. Dimitri visited appellant, his grandfather, all the time. In 2004, Dimitri said that appellant mumbled when they had conversations. Dimitri never saw appellant molest Victim.
In December 20024, Torrance Police Officer Erik Eidet interviewed Victim regarding the sexual molestation. Officer Eidet prepared a report. Victim said that she had been molested for the past nine years. Victim said that appellant” sexually touched” her for the last time in September 2004.
Rebecca H. (15 years old) knew Victim and appellant. Rebecca visited Victim at her house and spent the night there. Rebecca called appellant, “Papu.” Appellant never sexually touched Rebecca. He always treated Rebecca well.
Dr. Roger Engelbert was a psychiatrist. Appellant was his patient in 2004. Dr. Engelbert prescribed antidepressant medications for appellant. In December 2004, appellant complained that he was too sleepy and groggy from one of the medications. Thereafter he took half of the pill. Trazodone was known to cause sedation.
CONTENTIONS ON APPEAL
Appellant contends that appellant’s conviction must be reversed for prosecutorial misconduct. The contention of misconduct arose from the following event. During the cross-examination of Maria, the prosecutor asked whether Maria was aware appellant had applied to run a children’s day care on March 16, 2000. Maria explained that she, not appellant, had actually filled out the application. Maria herself wanted to open a home day care, but needed to license any adults that would be present during the hours of operation. At this point, defense counsel asked to approach sidebar; once there, counsel objected to the line of questioning based on the prosecutor’s failure to disclose the licensing documents to counsel. The prosecutor responded: “Actually, I don’t have the application. This is their witness and this is impeachment with regards to the defendant as part of the rap sheet and I have a certified.” Defense counsel interrupted, asking the prosecutor to “lower it.” The court excused the jury; after the panel left the courtroom, the prosecutor explained appellant’s “rap sheet” had been provided in discovery, and in that document, there was a notation that appellant had applied to run a family day care on September 12, 1985 and March 16, 2000. The prosecutor also noted Maria’s son filled out a day care application on December 27, 2001; on February 15, 2006, he applied to be a foster parent. According to the prosecutor, Maria had never applied to run a day care or be a foster parent. A discussion about what discovery or disclosure was appropriate and required followed.
During this discussion, defense counsel complained about the prosecutor referring to appellant’s “rap sheet” at side bar. Counsel stated “my understanding is that my client does not have a rap sheet. Now she said it loud enough, I think, for the jurors to hear it. At sidebar she used the words ‘rap sheet,’ ‘defendant’s rap sheet.’ [The prosecutor] doesn’t try to lower her voice when we’re at sidebar. Usually doesn’t cause me problems, but when the words ‘defendant’s rap sheet’ is uttered from the sidebar loud enough for the jurors to hear, I have to say that I just amazed.”
Defense counsel complained about the prosecutor’s failure to bring this discovery to her attention prior to trial and then stated “and I don't know what the jurors heard about my client’s rap sheet. I didn't realize that there was a rap sheet. So at this point I’m going to ask for a mistrial.” The trial court denied the motion for mistrial and sustained his own objection to the prosecutor’s question about Maria’s son’s application.
Defense counsel then argued “there was no reason to talk about the day care and foster care, and I think all of that should be excluded, stricken from the record.” He added “I would ask the court to inform the jurors that this part of the prosecutor’s cross-examination should not – it is stricken and the jurors should not give it any weight or even think about it.” Defense counsel continued to argue about the prosecution cross-examination, repeating “This day care center, foster care, I have no idea how to undo this problem . . . I would just ask the court to admonish the jurors to let them know that that information should be disregarded, has been stricken and then we can move on.” The court denied the motion to strike.
After further discussion, defense counsel asked that he be provided a copy of the rap sheet of his client because he did not believe his client had a prior conviction. At this time, the court asked the prosecutor whether appellant had prior convictions. The prosecutor said “no.” Defense counsel then said, “Then why was she waving that and saying defendant’s rap sheet at sidebar?” The prosecutor answered that it was a rap sheet and that it showed appellant’s application for a day care license “in ‘85, in ’86, no longer interested; in ’05 at the beginning; March 16th of 2000 he applied; 2005 he was no longer interested,” and his current arrest. Noting none of those items were admissible, counsel protested again, “Why would she be holding that up and using the word’s ‘defendant’s rap sheet’ at sidebar? There was no reason to do that.” The trial judge then stated “you’ve already made your motion for a mistrial and I denied it.”
After the trial, appellant filed a motion for release of personal identifying information on the trial jurors and a motion for a new trial. The basis for both motions was prosecutorial misconduct. The alleged misconduct was that the prosecutor withheld the information discussed above and “the most insidious part of her misconduct was when we approached side bar, where the jurors were still in their box, we got within about 15 feet of the court and she holds up a piece of paper and says, ‘I’ve got the defendant’s rap sheet right here,” which was a clear misstatement because, as the court knows, Mr. Sklavos has no prior convictions, has no prior arrests.” Defense counsel argues that appellant’s friends and family heard the reference “clearly and loudly” and “if they heard it, there is a great chance that the jurors heard it.” And “if they heard it – and they heard it clearly – there is more than a substantial probability that the jurors heard it. And if the jurors heard it, then there is a substantial probability that their verdict was based in part of in whole on this information that was untrue that should never have been part of the evidence.” Defense counsel wanted the juror’s personal information so that a defense investigators could contact the jurors and “ask . . . if they actually heard it and if they actually – if their verdict was based in some part on what they heard.”
Appellant’s motion for a new trial contained the affidavits of seven members of appellant’s family and/or friends who were in the courtroom at the time of the incident in question. They each declared that they saw the prosecutor raise a sheet of paper and “say loudly (or ‘shout’) ‘I have his rap-sheet in my hand,’ ‘I have his rap-sheet here,’ or ‘It’s on his rap-sheet.’”
The trial court denied the motion for a new trial and stated the following:
“The jury was specifically instructed that they were to base their verdict on the evidence, that statements of counsel were not evidence. The questions were not evidence. The jury is presumed to follow the court’s instruction.”
“So despite the fact that other persons may have heard [the prosecutor’s] comments at side bar, in the court’s view that is not sufficient to either justify this disclosure of personal identifying information of the jurors or for the granting of a new trial.”
The trial court also gave its impression that “the fact of the matter is that the evidence in this case as entered by the People was overwhelming and was not a closely balanced case.”
Based on these events, appellant contends that “[t]he prosecutor here knew appellant had no prior convictions, yet used the term ‘rap sheet’ – commonly understood as a criminal record – loudly and publically to suggest appellant had such a record. Not only were the existence of priors implied, but by framing the implication during a sidebar conference, the prosecutor was able to further imply that proof of these priors was somehow being kept from the jury.” Appellant also adds that as part of appellant’s motion for a new trial “there were seven affidavits from appellant’ family and friends sitting in the courtroom” and Maria was in the witness stand and that all of these individuals heard and saw “the prosecutor raise a sheet of paper and say loudly (or ‘shout’) ‘I have his rap-sheet in my hand,’ ‘I have his rap-sheet here,’ or ‘it’s on his rap-sheet.’”
Appellant argues to this court that the prosecutor effectively told the jury that appellant had priors of such a prejudicial nature that they were being kept from the jury and that this error was not cured by “the court’s standard instruction that statements of counsel are not evidence . . . .”
Respondent argues in reply that “the jury did not even hear the prosecutor use this term” and that “any alleged prosecutorial misconduct was harmless.” During the discussion in court, the prosecutor also advised the court that the investigating officer was sitting at counsel table and did not hear the conversation.
DISCUSSION
Standard of Review
To support a claim of prosecutorial misconduct, a defendant must show either a pattern of egregious conduct or employment of persuasion methods so deceptive as to create a reasonable likelihood that the behavior prejudicially affected the jury. (People v. Morales (2001) 25 Cal.4th 34, 44.)
The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Harrison (2005) 35 Cal.4th 208, 242; See also, People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Hill (1998) 17 Cal.4th 800, 820; People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
With respect to the references to a rap sheet, the record reflects that trial counsel only requested that the trial court grant a mistrial. Even if we assume that the events transpired exactly as appellant proposes, he did not ask for a specific admonition that would cure whatever prejudice may have occurred “if” the jurors heard the reference to appellant’s “rap sheet.” This was an “all-or-nothing” strategy that proved unsuccessful. As stated by the Supreme Court, “‘“[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant . . . requested that the jury be admonished to disregard the impropriety. [Citation.]”’” (People v. Ayala (2000) 23 Cal.4th 225, 284.) It is abundantly clear that a proper admonition could have resolved the situation in its entirety. All parties agreed at the side bar that appellant had no prior convictions. It is entirely probably that a request for an appropriately limited admonition, rather than a mistrial, would have resulted in either the delivery of that admonition or a determination that such admonition was not required.
A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged. A reviewing court uses the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. (People v. Silva, (2001) 25 Cal.4th 345, 372.) Prosecutorial misconduct is one of several grounds that can justify a mistrial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154.)
Further, contrary to appellant’s contention, the prosecutor’s remarks were not so inherently prejudicial that an admonition to the jury could not have cured any potential harm. (See People v. Dennis (1998) 17 Cal.4th 468, 521.) Appellant, therefore, did not preserve his challenge to the judgment on grounds of prosecutorial misconduct for this alleged blunder. (People v. Huggins (2006) 38 Cal.4th 175, 205.) In any event, even if arguably improper, the prosecutor’s remarks were certainly harmless, under any standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, citing People v. Clair (1992) 2 Cal.4th 629, 662-663.) In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)
We agree with appellant that an average juror would understand a reference to a “rap sheet” to be to some official document which lists the prior police contacts of a person. We feel it is also likely that such a juror would understand the document to include convictions, but are less comfortable that the average juror would understand a “rap sheet” to also include references to arrests and/or any other information; such as the license application indicated in this case.
However, regardless of the sophistication of the jury, the evidence against appellant was strong and persuasive, such that there was no likelihood the jury was misled or unduly influenced by the reference to a “rap sheet.” Even if the jury heard the word “rap sheet,” that mere reference by itself could not constitute such a prejudicial comment that it would influence the deliberations of a jury. We could locate no cases where a simple reference to a rap sheet without any additional information was found to constitute prejudicial error. Additionally, we hold that given the overwhelming evidence of appellant’s guilt, he was not prejudiced by the challenged remark. (People v. Roybal (1998) 19 Cal.4th 481, 520-521.)
DISPOSITION
The judgment is affirmed
We concur: RUBIN, J., FLIER, J.