Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS061821A
Bamattre-Manoukian, ACTING P.J.
Defendant Jesse Talamantez was convicted after jury trial of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a)), misdemeanor obstructing a peace officer (§ 148, subd. (a)(1)), and 75 counts of misdemeanor criminal contempt for disobeying a protective order (§ 166, subd. (c)(1)). He admitted having served a prior prison term. (§ 667.5, subd. (b).) The trial court sentenced him to five years in state prison.
Further unspecified statutory references are to the Penal Code.
Defendant contends on appeal that the trial court abused its discretion by denying his motion for mistrial, that the prosecutor committed prejudicial misconduct, and that the court’s imposition of an upper term sentence violated his constitutional right to a jury trial. We disagree with all of defendant’s contentions and, therefore, affirm the judgment.
BACKGROUND
Defendant was charged by amended information with inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 1), misdemeanor disobeying a domestic relations court order (§ 273.6, subd. (a); count 2), misdemeanor obstructing a peace officer (§ 148, subd. (a)(1); count 3), and 75 counts of misdemeanor criminal contempt for disobeying a protective order (§ 166, subd. (c)(1), counts 4-78). The information further alleged that defendant had served a prior prison term. (§ 667.5, subd. (b).) The trial court granted defendant’s motion to bifurcate trial on the prior allegation.
The Trial Evidence
In March 2005, shortly after Hope Gladden and defendant began dating, they began living together.
On the morning of September 5, 2005, Gladden knocked on the door of her neighbor, Jeannette Copas. When Copas answered the door, Gladden handed her a cell phone, said that it was 911, and then collapsed, crying. Gladden had a huge bruise on her arm, a bruise over her left eye, and bruises on her ribs. Copas spoke to the 911 operator, telling the operator what Gladden told her to say. Gladden said that defendant had beat her and that her stomach hurt. She gave defendant’s name and birth date, and said that she did not want to see defendant again.
When Salinas Police Officer Chris Swinscoe arrived at Gladden’s apartment, Gladden was crying and hysterical. Gladden told Officer Swinscoe that defendant had been drinking heavily the past few days. She had left the apartment the night before because she was afraid that defendant might get violent. When she returned to the apartment that morning, he yelled at her about a car that he wanted her to repair. During their argument, while they were in the living room, defendant hit her on the left side of her face twice with his fist. He wrestled her to the floor in the bedroom, then stood up and kicked her on the ride side of her abdomen. He then went into the kitchen and got a beer bottle. When she came out of the bedroom, he threw the bottle at her but missed. She told defendant that she was going to call the police, so he ran out the front door. She called 911 but hung up. They called her back. Gladden told Officer Swinscoe that she did not want defendant arrested, that she simply wanted him to go away. She also said that she was going to stay with Copas.
Officer Swinscoe noted that the left side of Gladden’s face was swollen, but he did not see any bruising on the right side of her abdomen. He saw a beer bottle on the floor of the hallway between the bedroom and living room, and Gladden said that it was the bottle that defendant had thrown at her. Gladden declined medical assistance.
Copas took Gladden to the hospital later that evening because Gladden was complaining of pain. Gladden stayed with Copas the night of September 5, 2005, and the day of September 6, 2005, because she said that she was afraid that defendant was going to return. Gladden told Officer Stephen Sandoval, when he contacted her on the afternoon of September 6, 2005, that defendant had assaulted her after he had been drinking heavily. Copas returned to her home on the evening of September 6, 2005.
On September 25, 2005, defendant’s mother saw him approach the locked front screen door of her home. Because she had obtained a restraining order against him in 2003, defendant’s mother told him that he could not be there. He asked her for some money. She told him to go away and did not open the door. Afterwards she called the police.
On the morning of October 15, 2005, Copas called 911 because she heard defendant threaten to hurt Gladden. Copas stayed on the phone with the 911 operator until after the police arrived. The police knocked on Gladden’s door around 3:30 a.m. and announced their presence. Gladden did not answer the door. The police kicked in the door, entered the apartment, and continued to announce their presence. They found defendant in the bedroom closet and arrested him.
On October 20, 2005, at a court hearing at which defendant was present, defendant was ordered to have no personal, telephonic, or written contact with Gladden pursuant to section 136.2 through April 20, 2006. Between October 20, 2005, and January 10, 2006, Gladden and defendant had almost daily telephone conversations. They also exchanged letters.
The prosecutor had four CDs of portions of the telephone conversations between defendant and Gladden, totaling 165 telephone calls. The parties stipulated that Gladden listened to, and identified the beginnings of, 87 of these calls in the presence of district attorney investigator Jalaine Hogue. The prosecutor played a part of some of the telephone conversations for the jury. During these telephone conversations, defendant and Gladden talked about how Gladden would testify at trial.
Alexandra McCabe, the legal services outreach coordinator with the YWCA domestic violence services, testified that it is very common for a domestic violence victim to not report the violence to law enforcement authorities due to fear, shame, and sometimes denial. Domestic violence victims who have reported the violence often do not want anything to be done about it. In addition, domestic violence victims who have reported the violence often later minimize the violence or completely change their story.
Contrary to what she had previously reported to the officers, Gladden testified at trial as follows. On the evening of September 4, 2005, after she and defendant had watched movies and played games, defendant left, telling her that he was going to the store. However, he had not returned by the time she went to bed and he was not home when she got up the next morning. She went to the store about 8:00 a.m. and saw defendant there sitting in a car talking to a girl. Gladden walked up to the car and she and the girl ended up physically fighting each other, causing Gladden to sustain bruises on her arms. After the girl left in her car, Gladden went home and argued there with defendant about where he had been all night. During the argument Gladden threatened that she would call the police because she wanted to scare defendant. While she was on the front porch and defendant was walking away from her, she called 911. She hung up when they answered, but they called her back. She lied to Copas and to the police when they arrived, telling them that defendant beat her up, because she felt betrayed. Her face was swollen because she had been crying.
Motion for Mistrial , Verdicts, Admission of Prior, and Sentencing
On August 30, 2006, after the parties gave their closing arguments but before the court instructed the jury, defendant moved for a mistrial. The court denied the motion. The jury deliberated for approximately one hour and found defendant guilty of all substantive charges. On August 31, 2006, defendant admitted the prior allegation. On October 5, 2006, the court sentenced defendant to five years in state prison.
DISCUSSION
Motion for Mistrial
Prior to trial, the prosecutor informed the court that she intended to call defendant’s parole officer, Officer Sandoval, as a witness, but that she would refer to him “as ‘officer.’ ” The court then stated that both defendant and Gladden mentioned parole during their recorded telephone conversations, and that “[t]hose I can’t excise, and I’m not going to excise those. I’m just assuming that there’s enough of the other information on those tapes, that the jury must focus on, that they’re not going to take that into consideration. But if you feel that I need to make a further admonishment before we send them out to deliberate, I’ll do it, at that time.” Defense counsel agreed.
During trial, after the jury had heard some of the recorded telephone conversations between defendant and Gladden, defense counsel objected to the jury hearing all of the rest of them, arguing that the evidence was cumulative. The court agreed, but stated that the transcript of all the recordings that were to be played for the jury would be given to the jury during their deliberations. The transcripts of the recordings the jury had during the playing of the recordings and during their deliberations had the word “parole” excised out. However, the transcripts included defendant’s references to “my officer.” None of the witnesses mentioned defendant’s parole status during their trial testimony.
At defendant’s request, this court ordered a settled statement be prepared regarding defendant’s motion for mistrial. The settled statement states in part: “In oral argument, the DA, herself did not mention the parole status. However, during rebuttal, the DA attempted to play a three minute excerpt from the jail phone calls between the defendant and the victim, specifically tracks 31 through 34 from a disc that contained all 34 tracks. The redacted transcript of said calls was already admitted into evidence but not before the jury at the time of argument. The computer was prompted to start at track 31 by the Investigating Officer and tracks 31 and 32 were heard. Instead of proceeding to track 33, the computer on its own automatically jumped to track 16. Before the Investigating Officer could prompt the computer to return to track 33, the word ‘parole’ and/or ‘P.O.’ was heard at which point defense counsel made an objection and the sound was turned off.”
After the prosecutor’s rebuttal argument, the court called a recess. Then, outside the presence of the jury, defendant’s counsel moved for a mistrial. He argued that “parole” was the last thing that the jury heard. “I feel that it’s totally improper. I’m not comfortable of accusing her of wrongdoing, but I can see no other way. This does not appear to be an inadvertent mistake. This is something that has been a constant problem in this trial, that we’ve tried to address in the most discreet way possible, and it just has not happened. And there’s continued – what appears to be attempts to get this information to the jury, and I think it’s grounds for a mistrial.”
The court denied the motion for mistrial, but ordered the prosecutor to excise any reference to a Morrisey hearing in the transcripts. “I don’t know how much they might have heard, but they didn’t have the transcript in front of them.” The court later instructed the jury “that anything that’s been redacted or scratched out, you’re not to read anything into that. It’s just not relevant to this case. So don’t try to find out what it was that was scratched out.”
Morrisey v. Brewer (1972) 408 U.S. 471. Track 34 includes a reference to a Morrissey hearing.
On appeal, defendant contends that the trial court abused its discretion by denying his motion for mistrial. “The jurors may or may not have understood that ‘my officer,’ who had visited [defendant] in jail and exercised substantial control over [his] life, was a parole officer. However, the explicit reference to parole officer played immediately before the jury began deliberations eliminated any such doubt and elucidated this lengthy earlier discussion. In consequence, the record was replete with references to [defendant’s] parole status.”
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.] ‘A motion for mistrial is directed to the sound discretion of the trial court. We have explained that “[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] 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.” ’ [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 953.)
In People v. Allen (1978) 77 Cal.App.3d 924, a case cited by defendant, the appellate court determined that the trial court erred in denying the defendant’s motion for mistrial because it found that a witness’s volunteered statement that the defendant was on parole was incurably prejudicial. The appellate court noted the general rule that “ ‘[a]n improper reference to a prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial “in the light of a record which points convincingly to guilt. . . .” ’ [Citation.]” (Id. at p. 935.) The court determined that the volunteered reference to parole necessitated a mistrial because “[a]n examination of the record reveals an extremely close case in which the jury had to make its fact determination based upon the credibility of the [defendant] and his witnesses and on the credibility of the prosecution’s witnesses. In the light of these facts, it is reasonably probable that a result more favorable to [the defendant] would have been reached had the prejudicial information of [the defendant’s] parole status not been divulged to the jury. [Citation.]” (Ibid.)
In People v. Stinson (1963) 214 Cal.App.2d 476, another case cited by defendant here, the defendant moved for mistrial on the ground that a witness had volunteered a statement indicating the defendant was on parole. The appellate court followed the general rule that “[i]mproper evidence of prior offenses results in reversal only where the appellate court’s view of the trial record reveals a closely balanced state of the evidence. [Citations.]” (Id. at p. 482.) The court also observed that improper evidence of prior offenses is “consistently regarded as nonprejudicial” when “viewed in light of a record which points convincingly to guilt.” (Ibid.) Because there was no “reasonable probability” that the defendant would have been acquitted absent the improper reference to parole, the appellate court affirmed the trial court’s order denying the motion for mistrial. (Id. at p. 483.)
Respondent relies on People v. Bolden (2002) 29 Cal.4th 515, and People v. Valdez (2004) 32 Cal.4th 73. In Bolden, our Supreme Court upheld the trial court’s denial of the motion for mistrial the defense counsel made after a police officer mentioned a parole office in his testimony. The Supreme Court found that it was doubtful that any reasonable juror would infer from the officer’s testimony that defendant had served a prison term for a prior felony conviction, and that the incident was not significant in the context of the entire guilt trial. (Bolden, supra, at pp. 554-555.) In Valdez, the defendant argued on appeal that the prosecutor committed misconduct by intentionally eliciting from an officer a reference to a defendant’s custody status. Trial counsel had moved for a mistrial immediately after the officer testified that he interviewed defendant at “Chino Institute,” but the trial court denied the motion. (Valdez, supra, 32 Cal.4th at p. 124.) Our Supreme Court discerned no misconduct on the part of the prosecutor, as the prosecutor did not ask where the officer interviewed the defendant, but only how the interview was conducted. (Id. at p. 125.)
In the case before us, the record discloses that evidence against defendant was strong and not closely balanced. Gladden told her neighbor and the police shortly after the incident at issue that defendant assaulted her. She repeated the story the next day to Officer Sandoval. She stayed with her neighbor the night of the incident and the next day because she said that she was afraid that defendant would return to her apartment. Defendant’s mother called the police shortly after defendant appeared at her home in violation of a long-standing restraining order. Defendant was found and arrested by officers in the bedroom closet of Gladden’s apartment after they had to kick in the front door. Defendant was subsequently informed at a hearing that he was not to have telephonic or written contact with Gladden, but he and Gladden thereafter had almost daily telephone conversations. During those conversations, defendant and Gladden discussed how she would testify at trial. Gladden testified at trial consistent with her telephone conversations with defendant.
In addition, defendant’s credibility was not directly at issue here because he did not testify. The reference to defendant’s parole status was not mentioned by the prosecutor during argument. Nor was it mentioned in testimony. The trial court had all references to defendant’s parole status excised from the transcripts of the recorded telephone conversations before the transcripts were given to the jury for their deliberations, and the court instructed the jury to not speculate about what had been excised. We presume the jury followed the trial court’s admonition. (People v. Osband (1996) 13 Cal.4th 622, 718-719.) Under these circumstances, we find that there was no reasonable probability that the jury would have reached a more favorable verdict absent the references to defendant’s parole status (People v. Stinson, supra, 214 Cal.App.2d at p. 483), and that the trial court did not abuse its discretion in finding that the references were not “incurably prejudicial.” (People v. Cox, supra, 30 Cal.4th at p. 953.)
Prosecutorial Misconduct
In a related argument, defendant contends that the prosecutor committed prejudicial misconduct during her rebuttal argument when she played the recorded telephone conversations for the jury. Defendant argues that the CD the prosecutor played had not been admitted into evidence. “The references to parole and P.O. that were played for the jury had been excised from Exhibit 4, but not from the disk that was played.” “[H]ad the prosecution not attempted to play material for the jury that was not in evidence, the jury would not have been exposed to this injurious material during closing arguments.”
We understand defendant’s argument to be that the prosecutor attempted to play something other than exhibit No. 4, which is the exhibit described in the settled statement and which was admitted into evidence prior to closing argument. However, the record on appeal does not support defendant’s claim. Although the references to defendant’s parole status were excised from exhibit No. 4A, which is the transcript of the CD constituting exhibit No. 4, the references to parole were not excised from exhibit No. 4 itself. Prior to trial, the court stated that it was not requiring references to parole to be excised from the CDs, and the prosecutor stated at the time of defendant’s new trial motion that references to parole were only excised from the 911 tape and exhibit No. 4A. Accordingly, the record on appeal does not support defendant’s argument that the prosecutor committed prejudicial misconduct when it played parts of defendant’s recorded telephone conversations during her rebuttal argument.
Imposition of the Upper Term
The presentence probation report states that defendant became a ward of the juvenile court in 1989 due to assaultive behavior and drug and alcohol abuse problems. The wardship was continued several times due to defendant’s ongoing similar behavior. Shortly after the wardship terminated in 1991, defendant received the first of his 11 prior misdemeanor convictions. The first of defendant’s four prior felony convictions occurred in 1994. He was sentenced to state prison in 2004, and was later returned to prison after violating his parole.
The probation report also lists seven possible factors in aggravation for sentencing purposes in this case, including that “defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness,” that “defendant has served two prior prison terms,” and that “defendant was on probation and parole when the crime was committed.” (See, Cal. Rules of Court, rules 4.421(b)(2), (3) & (4).) The probation report does not list any possible factors in mitigation.
At sentencing, the prosecutor requested that the court impose the upper term for the felony count and a consecutive term for the prison prior. The prosecutor stated that the request was based on this being defendant’s fifth felony conviction. Defendant requested that the court impose the middle term, arguing that he “had a rather tumultuous family history,” that he had “a rather obvious problem with alcohol,” and that the victim’s injuries “were rather minor.”
The court imposed the upper term of four years, stating to defendant: “Factors in aggravation, each one of those listed [in the probation report], the Court has considered all of those in sentencing, and as possible factors in mitigation I will consider what you’ve asked.” The court then imposed a one-year consecutive term for the prison prior.
On appeal defendant contends that, because the jury verdict did not encompass any findings concerning the factors in aggravation the trial court relied on, the court violated his constitutional rights to a jury trial and due process when it imposed the upper term. (Blakely v. Washington (2004) 542 U.S. 296, 303; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).)
Defendant acknowledges that, subsequent to Cunningham, in People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that imposition of the upper term does not infringe upon a defendant’s constitutional right to jury trial as long as one legally sufficient aggravating circumstance, such as that the defendant’s prior convictions are numerous or of increasing seriousness, is justified based upon the defendant’s record of prior convictions. (Id. at pp. 812, 816.) Defendant also acknowledges that this court is bound to follow Black (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and that Black is controlling here. He states that he is raising the issue solely to preserve it for federal review. Accordingly, we reject defendant’s challenge to the trial court’s imposition of the upper term in this case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MCADAMS, J., DUFFY, J.