Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. NA079138 James D. Otto, Judge. Affirmed.
Carey D. Gorden for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted Phalla Vinoukkun (defendant) of unlawful firearm possession in violation of Penal Code section 12021, subdivision (e) (count 1) and carrying a loaded firearm that was not registered in violation of section 12031, subdivision (a)(1) (count 2). Defendant admitted an allegation that he had suffered a conviction or juvenile adjudication of a serious or violent felony under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
All further references to statutes are to the Penal Code unless stated otherwise.
In count 1, the trial court sentenced defendant to the midterm of two years, doubled to four years under the “Three Strikes” law. In count 2, the trial court imposed the midterm of two years and stayed the sentence under section 654.
Defendant appeals on the ground that the trial court committed reversible error when it denied his motion for a mistrial. We affirm.
FACTS
Prosecution Evidence
On July 27, 2008, at approximately 11:50 p.m., Officer Ricardo Solorio (Solorio) of the Long Beach Police Department and his partner were in their patrol car traveling north on Martin Luther King Jr. Avenue near East 19th Street. Solorio saw two males running across Martin Luther King Jr. Avenue from an alley. Solorio followed the men by turning onto 19th Street in the patrol car. He lost sight of them for only a few seconds. He got a good look at the men as they entered a parking lot next to a church. Solorio shone his spotlight on them, and they tried to hide among the parked cars. One of the males was later identified as defendant. As Solorio got out of the patrol car, the two men jumped a fence on the side of a church and ran back toward Martin Luther King Jr. Avenue. Solorio caught up to the other male, identified as Samnang Pak (Pak). Defendant continued running west on 19th Street. As Solorio was taking Pak into custody, he saw defendant running into the grounds of a duplex at 1877-1879 Myrtle Avenue.
Seconds later Officer Steven Vanden Bosch (Vanden Bosch), who had been in the area, pulled up in his patrol car next to Solorio. Vanden Bosch told Solorio that he had been chasing a subject who had appeared to drop a gun. Vanden Bosch had seen the man slow from a jog to a stop when Vanden Bosch drove toward him. The man had then crouched down and reached toward his waistband. Vanden Bosch saw a silver object fall to the gutter near a Bronco automobile on the corner of 19th Street. The subject Vanden Bosch saw matched Solorio’s description of defendant. Vanden Bosch had seen the subject he was chasing enter the driveway of 1877-1879 Myrtle Avenue.
Vanden Bosch called for assistance, and more police officers arrived and set up a perimeter. The police shone lights on 1877-1879 Myrtle Avenue and asked the residents of first the front unit and then the rear unit to come out. Defendant exited the rear unit along with several other people. He had scratches on his forearms. Except for defendant, Vanden Bosch did not see anyone else come out of the units who matched the description of the subject he had seen.
Shortly thereafter, Vanden Bosch recovered a chrome Amadeo Rossi.38-caliber special revolver on 19th Street, just east of Myrtle Avenue on the southern curb. The gun was fully loaded. The officers decided to see if there were more firearms in the area. Vanden Bosch recovered another gun in the bushes near the church, which was just off 19th Street. The Amadeo Rossi revolver was not registered to anyone arrested in defendant’s case.
Defense Evidence
Chan Sarah Keo (Keo) and approximately 15 others, including defendant, had a Cambodian family barbecue at 1877-1879 Myrtle Avenue on the afternoon of July 27, 2008. Keo resided in No. 1879, the back house. At approximately 8:00 or 9:00 p.m. there was a shooting. The people at the barbecue, including defendant, ran in different directions. Defendant returned to the back house about 20 minutes later to see if everyone was okay. He and the others in the house waited for Keo’s brother-in-law, Jeffrey, to return. Then the officers arrived. They told everyone to come outside. When the residents complied, the officers took defendant and said he looked like someone for whom they had been searching. Keo and the others told the police defendant had been in the house “all this time.”
Chamnoun Norn (Chamnoun) lived at 1877 Myrtle Avenue, the front house. He remembered defendant being at the barbecue the entire afternoon and evening. At around 9:00 or 10:00 p.m., there was a shooting, and defendant and others ran inside Chamnoun’s house. Defendant stayed there about 20 minutes. Defendant then went to check on the people in the back house. The police came and took defendant away.
Saroeun Norn (Saroeun), Chamnoun’s brother, is defendant’s wife’s uncle, and he also lived in the front house. When the shooting began, he ran into the front house, as did defendant. After an hour, defendant went to the back house. Police came approximately one half hour later and pulled everyone out. Defendant was at the barbecue the entire day.
DISCUSSION
I. Defendant’s Argument
Defendant contends that his chance of receiving a fair trial was irreparably damaged by Solorio’s testimony, which contained a reference to defendant’s gang membership. Defendant argues that admonishing the jury was not sufficient to overcome the incurable prejudice, since the jury had to make a factual determination based on the credibility of prosecution and defense witnesses in this close case. Therefore, the trial court committed reversible error by not granting his motion for a mistrial.
II. Proceedings Below
Prior to trial, the defense moved to exclude any reference to gangs by any prosecution witness pursuant to Evidence Code section 352. The trial court granted the motion, which the People did not oppose.
During redirect examination of Solorio, the following dialogue occurred:
“Q. Okay. So you find one gun, and did you make the decision to go ahead and see if there were more firearms out there?
“A. Later, yes.
“Q. Why is that?
“A. Well, because both defendants were documented gang members.
“Q. “I’m sorry. I’m going to ask you to
“Ms. Smith [prosecutor]: Motion to strike that last.
“The Witness: Okay.
“The Court: It will go out. Ladies and Gentlemen, disregard that remark.
“Q. By Ms. Smith: Had you actually seen the other individual drop anything when you were chasing him?
“A. No. The reason I thought that there might be a second gun was because earlier in the day there was a shooting, and I thought maybe these two guys were going to retaliate because of the shooting that occurred at
“Mr. Lowerre [defense counsel]: Objection, may we approach, Your Honor?”
At sidebar, defense counsel moved for a mistrial because of the gang reference and Solorio’s use of the word “retaliate,” which was “kind of another gang reference.” The prosecutor explained that she did not intend to elicit the response Solorio gave, and she had admonished all the police officers. She suggested that the trial court give another curative instruction at the end of trial and stated she would abandon the line of questioning she had been pursuing.
The trial court responded, “Motion for mistrial is denied. I think the curative instruction I gave, along with one at the end, would be sufficient. I struck it and told the jury to disregard it. I think you need to move on.”
III. Relevant Authority
“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. [The Supreme Court has] 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, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421.) “‘It is not an abuse of discretion when a trial court denies a motion for mistrial after being satisfied that no injustice has resulted or will result from the occurrences of which complaint is made....’ [Citation.]” (People v. Gray (1998) 66 Cal.App.4th 973, 986.) The appellate court must examine the record to determine if the trial court abused its discretion. (People v. Woodberry (1970) 10 Cal.App.3d 695, 708.)
Although most motions for mistrial involve prosecutorial or juror misconduct, a witness’s volunteered statement may also provide the basis for a finding of prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565-566 [no incurable prejudice where witness “blurted out” that defendant “‘got the word out’” that witness was a “‘snitch’”].) 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 (Allen).)
IV. No Abuse of Discretion
We conclude the trial court did not abuse its discretion in denying the mistrial motion, since we believe defendant was not prejudiced by Solorio’s mention of gang membership. The trial court immediately sustained the objection to the improper evidence, ordered it stricken, and instructed the jury to disregard it. The trial 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.
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 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 same presumption is warranted in the instant case. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Even assuming some residual prejudice remained despite the court’s prompt admonition to the jury, any error was clearly harmless in light of the strong evidence of defendant’s guilt. The fact that the jury reached its verdict in so short a time further supports this view. The record shows that the jury retired at 10:45 a.m. to deliberate, and at 2:00 p.m. the jury informed the court it had a question. Between 3:10 and 3:50 p.m., certain portions of Solorio’s testimony were read back to the jury. At 4:30 p.m., the jury delivered its verdict. There is no reason to believe the jury did not disregard Solorio’s remark about gang membership.
In arguing that Solorio’s remark was incurably prejudicial, defendant relies on Allen, supra, 77 Cal.App.3d 924. The admission of improper evidence in Allen was prejudicial for two reasons. First, it was an “extremely close case” in which the defendant’s credibility was critical. (Id. at p. 935.) Second, the trial court committed another error by excluding evidence relevant to the primary prosecution witness’s motive to fabricate. (Id. at pp. 932-934.) This case does not involve multiple errors affecting witness credibility, and, as discussed, it is not close.
Even if the trial court erred in denying the motion for a mistrial, it was harmless. This case turned on whether the jury accepted Solorio’s identification of defendant as the suspect he and Vanden Bosch pursued. There was strong evidence that defendant was the suspect, and that he was the person whom Vanden Bosch saw dropping a gun. Solorio got a good look at the two men he chased. He described defendant as having shoulder-length hair, a black T-shirt, long black shorts, and holding a white T-shirt or white rag in his front waistband area. When defendant exited the house on Myrtle Avenue he wore a black T-shirt and black shorts. There was only a lapse of 10 to 15 seconds from the time Solorio saw defendant running up 19th Street while he took Pak into custody and his sighting of defendant running back onto Myrtle Avenue. Solorio was certain it was defendant who entered the Myrtle Avenue address. At the time defendant came out of the rear house, he was wearing a towel over his head as if he had just showered, but his hair was not wet. Defendant had fresh scratches on his forearms as well. Solorio identified defendant in court as the subject who ran from him.
The subject Vanden Bosch saw matched Solorio’s description of defendant. The subject, who stopped running on 19th Street when he saw Vanden Bosch’s patrol car, was a male Asian with shoulder-length black hair, wearing a black T-shirt and black pants, which may have been longer shorts. As Vanden Bosch made a U-turn after observing the man drop a gun, he saw the subject running south on Myrtle Avenue, and then crossing the street and turning into 1877 Myrtle Avenue. When the officers evacuated the two buildings, they saw no one, apart from defendant, who matched the subject’s description. Of the males who exited the back house, only defendant had shoulder-length hair.
Defendant’s witnesses, in addition to being related to him by marriage, gave contradictory testimony. Keo at first said that 30 minutes elapsed between the time of the shooting and the time defendant went to the back house to check on the inhabitants. About 30 minutes after that, the police arrived. Keo then said that about 20 minutes elapsed between the shooting and defendant’s arriving at the back house. She also changed the time between defendant’s arrival at the back house and the police arrival to a gap of 45 minutes. She said at first that she did not know or did not remember if any other males at the barbecue had shoulder-length hair. When asked again, she said there was someone but she did not know his name. Then she said there were “some” with long hair. She at first said that defendant ran into the front house, but then admitted that she did not actually see where he went.
Chamnoun, who was an uncle of defendant’s wife, stated several times that defendant ran inside his house when the shooting occurred and stayed there for a couple of hours. Defendant then went to the back house and had been there approximately 20 minutes when the police arrived. Chamnoun then said that the police arrived approximately 20 minutes after the shooting. He later stated that it was 20 minutes from the time of the shooting to when defendant went to the front house and then to the back house to check on the people. Chamnoun said that a lot of guests at the barbecue had long hair.
Saroeun, also an uncle of defendant’s wife, said that defendant ran into the front house after the shooting and remained there for about an hour. He then went to check on the back house. The police arrived a half hour later. He later admitted he did not remember how long defendant was gone before the police arrived. Saroeun acknowledged that he, Keo, and Chamnoun had discussed when they saw defendant that night and when they did not see him. Later, Saroeun stated defendant could have been in the front house for 10 or 15 minutes before he went to check on the people in the back house.
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 Solorio not blurted out the remark. (People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
I concur: BOREN P. J.
DOI TODD, J.-Dissenting
I dissent because I believe the defendant is entitled to a new trial. The trial court granted the defense motion to exclude any reference to gangs by the prosecution witnesses on the grounds that such evidence was not relevant and was unduly prejudicial, and the People voiced no opposition. The prosecutor asserted that she had admonished the police officers, but she nevertheless asked a question (as to why Officer Ricardo Solorio looked for another gun) that was very likely to elicit the prohibited information. Solorio did not make a vague reference to gang activity. Rather, he told the jury that “both defendants were documented gang members.” The trial court’s subsequent admonition was brief and cursory. When the prosecutor next asked whether Solorio had actually seen the other individual drop anything during the chase, Solorio answered, “No,” and was then allowed to expand upon his answer by relating that there had been a shooting that evening, and he believed the two suspects might be planning to retaliate. No admonition followed these remarks. The only admonition contained in the jury instructions was the sentence telling the jury to disregard any testimony stricken from the record, which was part of a lengthy standard instruction, CALCRIM No. 222.
The error in this case was not harmless. “Legions of cases and other legal authorities have recognized the prejudicial effect of gang evidence upon jurors. [Citations.]” (People v. Albarran (2007) 149 Cal.App.4th 214, 232, fn. 17.) Given the highly inflammatory nature of such evidence, there is a real danger that a jury will improperly infer that a defendant who is a gang member has a criminal disposition and is necessarily guilty of the charged crime. (People v. Williams (1997) 16 Cal.4th 153, 193.) Here, the testimony by the officers was open to challenge, since the chase occurred at night and their observations were brief and made from a distance. Officer Solorio was never closer than 30 feet from the second suspect, and it was his estimate that there was a span of 30 seconds from the time he saw the two men in the parking lot until he detained Mr. Samnang Pak. Officer Steven Vanden Bosch saw the second suspect for only a brief time. He did not estimate how close the suspect was when he dropped the gun, but did say he did not get a good look.
The discrepancies in the testimony of the defense witnesses, who gave defendant an alibi, were not significant, referring only to lapses of time as perceived by each witness. Given the pandemonium caused by the shooting during the barbeque and the arrival of the police, who ordered everyone out of their homes, such discrepancies are not unusual. They demonstrate that the witnesses did not compare and rehearse their testimony, even though they were part of defendant’s extended family. I believe the trial court should have granted defendant’s motion for a mistrial, and I would reverse the judgment.