Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF021505, Dennis A. McConaghy, Judge.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Michael Murphy and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant and appellant James Leon Small guilty of one count of rape of a child under the age of 14, and 10 or more years younger than defendant (Pen. Code, § 269, subd. (a)(1); count 1); one count of a lewd act on a child under the age of 14 by force, fear, duress, or menace (§ 288, subd. (b)(1); count 2); three counts of a lewd act on a child under the age of 14 (§ 288, subd. (a); counts 3-5); and five counts of a lewd act on a child under the age of 16 while being 10 years older (§ 288, subd. (c)(1); counts 6-10). In a bifurcated proceeding, defendant admitted that he had suffered one prior prison term (§ 667.5, subd. (b)). Defendant was sentenced to a total determinate term of 24 years 4 months and a total indeterminate term of 15 years to life in state prison. Defendant’s sole contention on appeal is that the trial court erred in denying his motion for a mistrial. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Defendant and Krista W., Jane Doe’s mother, had a nonmarital relationship from 2000 through 2007. In 2004, when Jane was about 13 years old, she and her brother moved to California from Louisiana to live with their mother and defendant at a home in Hemet. During 2004 through 2006, Jane’s mother drank heavily. Jane viewed defendant as a father figure.
Jane and her brother moved back to California after their father began beating them.
On Mother’s Day 2005, when Jane was 13 years old, defendant began molesting her. He touched her hips and buttocks. About a week later, while her mother was away, defendant came up behind Jane in a hallway, pulled down her pants, bent her over, and proceeded to rape her from behind. Jane told defendant “no” several times, but he would not stop. Jane was crying and upset; the penetration was painful. Defendant told Jane that he wanted a relationship with her and not to tell anyone. Jane did not tell anyone because she believed her mother would blame her and send her back to Louisiana. She was also afraid. Following the rape, Jane noticed that she was bleeding and believed it was her menstrual cycle. Jane had never had a sexual relationship prior to that incident.
Thereafter, defendant continued to have sex with Jane about once a week while living at that home. The family then moved to a second home in Hemet, where defendant continued to sexually abuse Jane. Defendant generally came into Jane’s room when Jane’s mother was asleep, tapped her on her shoulder to wake her, and then had sexual intercourse with her.
The family subsequently moved into yet a third house in Hemet. At that location, defendant had sexual intercourse with Jane more often because Jane had her own room. In addition, Jane’s mother went to jail in April 2007 for embezzlement, and defendant continued to reside in the home. Sometimes Jane would sleep in bed with defendant because he told her to. On one occasion, over Jane’s protestation, defendant put his penis in her mouth.
On three different occasions, Jane missed her menstrual cycle and believed she might have been pregnant. Defendant did not use a condom and did not react when Jane told him once or twice that she might be pregnant.
Over the two-year period, defendant had sexual intercourse with Jane about 100 times. Jane was afraid of defendant; he had repeatedly threatened to kill her and “them” if she told anyone. Jane’s mother and defendant argued, yelled, and cursed at each other often. Jane had seen defendant violent toward her mother. Defendant had hit Jane’s mother twice; once at their first home and again at the second home.
Jane eventually disclosed the abuse to her mother in April 2007. In a letter to her mother in jail, dated April 30, 2007, Jane wrote that defendant had been sexually abusing her since Mother’s Day 2005. She exclaimed that she “never told you because he said not to or he would kill me and the person I would tell. But, mommy, I can’t take it anymore. [¶] He makes me sleep in his bed and he’ll do things to me all night. Mommy, I am so scared.” After Jane told defendant that she had written the letter, defendant left, and she never saw him again until the time of trial.
The letter was read to the jury.
On May 1, 2007, Jane gave a taped forensic interview, which was played for the jury.
In September 2007, defendant wrote a letter to Jane. In the letter, which was intercepted by Jane’s aunt, defendant admitted to having sex with Jane but claimed that it was not rape or forcible. He further exclaimed that he loved Jane and that he still had feelings for her. Defendant believed the love was mutual and that he and Jane were romantically involved. Jane testified that she had repeatedly told defendant that she did not love him and, in her mind, she and defendant were never in a romantic relationship.
The letter was read to the jury.
II
DISCUSSION
Defendant contends the trial court prejudicially erred in denying his motion for a mistrial after the victim testified that defendant was in a gang. We disagree.
A. Additional Factual and Procedural
During Jane’s direct testimony, the prosecutor asked Jane, “Can you tell us in your own words why you were scared of [defendant]?” Jane replied, “I was scared of him because of the person that he is. You know, he’s in a gang, you know.”
Immediately thereafter, defense counsel objected on relevance grounds. The trial court responded, “Might want to ask the question differently.” The prosecutor stated, “Okay.” The court thereafter sustained the objection, struck the answer, and admonished the jury to disregard the testimony.
The following day, defense counsel brought the motion for a mistrial. Counsel stated, “Your Honor, I completely forgot, based upon the alleged[] victim’s testimony on Thursday, she said in her testimony at one point in time that [defendant] is a gang member. That got out and was heard by the jury. Because of that, I feel that it is very prejudicial for a jury to even hear that. Even though they were admonished not to hear it, I think the cat’s out of the bag on that. She said she was scared of him because of the person he is. He’s a gang member. For that, I would ask for a mistrial, based on prejudicial testimony that came out. That hurts my client.”
The prosecutor objected, noting that the court had admonished the jury and that it was not prejudicial. The trial court asked defense counsel if she wished the court to “fashion a jury instruction that there’s absolutely no evidence of any gang.” The court further stated, “I don’t know if you want to ring that bell again.” Defense counsel agreed. The court thereafter denied the motion for a mistrial noting, “I think we have to assume that the admonishment works.”
B. Relevant Law
A trial court’s ruling denying a mistrial is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283.) “Although most cases involve prosecutorial or juror misconduct as the basis for [a mistrial] motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. [Citations.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) It is “only in the exceptional case, ” however, that the trial court’s admonition will not cure the effect of improper prejudicial evidence. (People v. Allen (1978) 77 Cal.App.3d 924, 935.)
A motion for mistrial “should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (Ayala, supra, 23 Cal.4th at p. 283.) That is, “‘“[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.]”’” (Harris, supra, 22 Cal.App.4th at p. 1581.) “‘A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith[.] [Citations.] It is only in the exceptional case that “the improper subject matter is of such a character that its effect... cannot be removed by the court’s admonitions.” [Citation.]’” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) “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.)
C. Analysis
Defendant was not deprived of a fair trial or due process of law by the brief statement of the victim that he was in a gang. Nor did the trial court abuse its discretion in denying the motion for mistrial based on this testimony.
The trial court immediately sustained the objection to the improper evidence, ordered it stricken, and instructed the jury to disregard it. The court also instructed the jury to disregard what it had stricken when it read the jury instructions. Although gang evidence is potentially prejudicial (People v. Hernandez (2004) 33 Cal.4th 1040, 1049), the single and fleeting reference to gang membership in the instant case was not incurably prejudicial.
We presume that the jury followed the court’s instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.) As one court observed, “Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured.” (People v. Martin (1983) 150 Cal.App.3d 148, 163.) Here, defendant cites nothing in the record indicating the jurors did not follow the court’s admonitions and instructions.
In an analogous situation in People v. Avila (2006) 38 Cal.4th 491, the Supreme Court held that the trial court did not abuse its discretion in denying a mistrial motion after a prosecution witness testified that a codefendant had told him to “keep cool” about the crimes because defendant had recently been released from prison, was crazy, and would kill him. (Id. at p. 571.) Before he testified, the witness had been admonished not to refer to several topics, including the defendants’ criminal convictions. (Ibid.) The defendant moved for a mistrial based on the reference to his prison term. (Id. at p. 572.) He argued that the prosecutor had the duty to prevent the witness from testifying about improper matters and that the statement was prejudicial. The trial court found that the state of the evidence against the defendants was strong, and the reference did not prejudice them. (Id. at p. 572.) The statement about prison was stricken, and the jury was admonished not to consider it for any purpose. (Id. at pp. 572-573.) The reviewing court found no abuse of discretion and concluded, “As for the portion of Rodriguez’s testimony referring to defendant recently having been in prison, the court admonished the jury not to consider it for any purpose.... We presume the jury followed the court’s instructions.” (Id. at p. 574.)
The Supreme Court has repeatedly held that the one-time-only use of a similarly prejudicial word does not necessarily require a mistrial. (People v. Valdez (2004) 32 Cal.4th 73, 124, 128 [because witness’s reference to the defendant having been at “‘Chino Institute’ was brief and isolated, the trial court properly denied the motion for mistrial”]; People v. Bolden (2002) 29 Cal.4th 515, 554-555 [witness’s reference to obtaining the defendant’s address from “parole office” was “not significant in the context of the entire guilt trial”].)
In any event, it is highly improbable that defendant would have realized a more favorable result had the jury not heard Jane’s reference to defendant being a gang member. (People v. Harris, supra, 22 Cal.App.4th at p. 1581 [applying reasonable probability standard of harmless error to erroneous introduction of evidence that defendant had been on parole].) Jane, who was 18 years old at the time of trial, testified that defendant had continuously engaged in sexual intercourse with her beginning when she was 13 years old for about a two-year period. As to the nonforcible counts, defendant admitted the allegations. As to the forcible counts, Jane specifically recalled defendant coming up behind her in a hallway, rubbing her, pulling her pants down, bending her over, and inserting his penis into her vagina from behind. Jane recalled telling defendant to stop and crying during the incident. After the incident, she noticed that she was bleeding; Jane had never had sexual intercourse before. Jane further testified that she was afraid of defendant and that defendant made her have sex with him about once a week while she was still 13 years old. Jane consistently and repeatedly testified that she acquiesced to defendant’s sexual encounters because she was afraid of defendant. This is supported by her forensic interview, as well as her letter to her mother. Jane’s brief comment that defendant was in a gang added little to the evidence that she was afraid of defendant.
In sum, we believe the record “demonstrates the absence of any incurable prejudice of the sort that would require the granting of a motion for mistrial.” (People v. Jenkins (2000) 22 Cal.4th 900, 986.) The trial court could reasonably conclude that the brief reference to gang membership did not irreparably damage defendant’s chances of receiving a fair trial, and it did not abuse its discretion by denying the mistrial motion. Given the testimony and the trial court’s admonitions, we cannot conclude that there is a reasonable probability the outcome of the verdict would have been more favorable to defendant had the victim not blurted out the gang membership remark. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., CODRINGTON, J.