People v. Camba CA2/4 ( 2021 )

Filed 2/11/21 P. v. Camba CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301621
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA478693)
v.
JAVIER VICTOR CAMBA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, William N. Sterling, Judge. Affirmed.
Patrick J. Hoynoski, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________________________________
INTRODUCTION
Appellant Javier Victor Camba was convicted by a jury
of receiving a stolen car. At trial, Los Angeles County
Sheriff’s Department Deputy Manan Butt testified that he
found appellant seated in the driver’s seat of the stolen car,
in which the steering column had been removed and a
screwdriver had been inserted into the ignition. Appellant
was in possession of a shaved car key, a tool commonly used
by car thieves. Immediately after he was advised of his
Miranda rights, appellant asked whether the deputy had
seen him driving the car (suggesting, as appellant now
concedes, his knowledge that he should not be associating
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with the car). Appellant also told the deputy that someone
had given him the car for a wash, but failed to either identify
that person or answer when Deputy Butt asked where
appellant’s cleaning materials were.
The trial court struck additional testimony from
Deputy Butt, and instructed the jury to disregard it. The
stricken testimony had advanced Deputy Butt’s
interpretation of appellant’s question as reflecting
1
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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knowledge that the car was stolen. Appellant’s counsel
moved for a mistrial on the ground that the stricken
testimony was incurably prejudicial. The court denied the
motion, finding no prejudice in light of the strong
prosecution evidence.
Appellant neither testified nor presented evidence. His
counsel’s principal defense theory was that had appellant
known the car was stolen, he would have fled. The jury
convicted appellant.
On appeal, appellant contends the court abused its
discretion by denying his motion for a mistrial, arguing he
was prejudiced by Deputy Butt’s stricken testimony despite
the court’s instruction to the jury to disregard it. We
disagree and affirm.
PROCEEDINGS BELOW
A. The Evidence at Trial
1. The Stolen Car, Shaved Key, and
Screwdriver
Frederick Leister testified that on June 4 or 5, 2019, he
reported to the police that someone had stolen his car, a
black SUV with a Mississippi license plate. Deputy Butt
testified that on June 13, 2019, he was patrolling an
industrial area in East Los Angeles in his uniform and
marked police vehicle. He noticed a black SUV with a
Mississippi license plate (later identified as Leister’s stolen
car) parked at a curb. Appellant was seated in the driver’s
seat, with his body partially emerging from the open
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driver’s-side door. A woman was sitting on a motorized
scooter directly behind the car. Deputy Butt stopped his
vehicle close behind the scooter, ran the car’s license plate
number in a stolen vehicle database, and almost
immediately received a notice that the car had been reported
stolen. Meanwhile, appellant had looked in Deputy Butt’s
direction, exited the car, walked to and knelt behind the
scooter, and started speaking with the woman.
Deputy Butt detained appellant and the woman and
waited until Deputy Danny Galvez and other officers arrived
as backup. He saw Deputy Galvez search appellant’s person
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and discover a shaved car key (for a different type of car).
Deputy Butt testified that shaved keys “are used . . . by
criminals to unlock vehicles and to start cars.”
Looking into the car, Deputy Butt saw that the
driver’s-side door panel and the steering column had been
removed. Further, the ignition had been punched out, and a
screwdriver had been inserted into it, for use as a makeshift
key.
2. Appellant’s Question to Deputy Butt
After testifying as described above, Deputy Butt
testified that he advised appellant of his Miranda rights. At
that time, neither the deputy nor any other person present
had mentioned a stolen car. Deputy Butt further testified
2
Deputy Galvez later testified that he found two shaved
keys in appellant’s possession.
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that immediately after appellant confirmed he understood
his rights, appellant asked, “‘Did you see me drive it?’”
Defense counsel did not object to this testimony.
The prosecutor asked Deputy Butt what he believed
appellant’s question referred to. Deputy Butt responded,
“When he made that statement [sic], he let me know that he
knew that this vehicle was stolen.” Appellant’s counsel
objected to this testimony on the grounds that it was
speculative and went to an ultimate issue in the case. The
court struck the challenged testimony and admonished the
jury to “disregard that statement about what [the deputy]
indicated the defendant knew or didn’t know. You’re to
disregard that.”
Outside the presence of the jury, defense counsel
moved for a mistrial, stating, “I believe we can’t unring that
bell.” The court denied the motion, stating, “I think the
evidence in this case -- from what’s been presented already
and what, based on the [Evidence Code section] 402
[hearing], I expect to hear, and opening statement -- that the
3]
evidence is pretty strong.[ And I don’t think there’s any
harm.”
3
During a pretrial hearing held under Evidence Code section
402, Deputy Butt had testified that (1) appellant said he had
been washing the car for someone; (2) Deputy Butt asked
appellant how he had planned to wash the car without water,
soap, or other cleaning materials; (3) appellant remained silent in
response; and (4) Deputy Butt asked appellant no further
questions. During opening statements, the prosecutor had
(Fn. is continued on the next page.)
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3. Appellant’s False Claim to Deputy Butt
After the court denied appellant’s motion for a mistrial,
Deputy Butt testified that he asked appellant why he had
been inside the car, and appellant responded that he had
been washing the car for someone. Deputy Butt asked
appellant to identify or describe the person, but appellant
said he could not. Deputy Butt asked appellant where he
was keeping his cleaning materials, such as water and soap
(none of which was present). Appellant did not respond.
Deputy Butt asked appellant no further questions.
Appellant neither testified nor presented evidence.
B. Closing Arguments
The prosecutor argued appellant had known the car
was stolen at the time he was in possession of it. The
prosecutor identified “the most persuasive evidence” as the
removal of the steering column and insertion of a
screwdriver into the ignition. He also relied on (1)
appellant’s possession of a shaved car key; (2) appellant’s
effort to distance himself from the car after he saw Deputy
Butt; (3) appellant’s false claim to have been given
possession of the car for a wash, which the prosecutor argued
reflected consciousness of guilt; and (4) appellant’s question
whether Deputy Butt had seen him driving the car, which
previewed nearly all the prosecution evidence. Appellant’s
counsel had mentioned no affirmative defense evidence.
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the prosecutor argued was motivated by appellant’s
knowledge that the car was stolen.
Appellant’s counsel argued the prosecution had failed
to prove beyond a reasonable doubt that appellant knew the
car was stolen. As “the most important factor” in appellant’s
defense, he relied on the fact that appellant had not fled
after seeing Deputy Butt, arguing that appellant would have
fled had he known the car was stolen.
C. Deliberations and Verdict
During deliberations, the jury submitted a request for
readback. The request is not in the record. The court quoted
it as follows: “‘We the jury submit the following request or
questions.’ The court -- ‘Deputy Butt’s testimony where he’ --
I don’t know what that word is -- something ‘where he made
the statement about not driving the vehicle,’ quote, ‘Did you
see me drive it,’ unquote.” With the parties’ consent, the
jury received a readback of a portion of Deputy Butt’s
testimony, which the court marked as court’s exhibit 1. We
have reviewed the exhibit, which shows that the readback
included Deputy Butt’s testimony about the fact of
appellant’s question, but omitted Deputy Butt’s stricken
testimony interpreting the question. The foreperson
confirmed that the readback had satisfied the jury’s request.
The jury convicted appellant.
The court sentenced appellant to the high term of three
years (to be served in county jail). Appellant timely
appealed.
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DISCUSSION
Appellant contends the trial court abused its discretion
by denying his motion for a mistrial, arguing he was
prejudiced by Deputy Butt’s stricken testimony despite the
court’s instruction to the jury to disregard it. A trial court
should grant a defendant’s motion for mistrial if the court is
“‘“apprised of prejudice that it judges incurable by
admonition or instruction.”’” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 634.) “‘“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.”’” (Ibid.) Consistent with the
general presumption that jurors follow the trial court’s
instructions, courts presume that jurors disregard stricken
testimony when they have been admonished to do so. (See
4
People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292.)
4
As appellant observes (without acknowledging that he is
quoting Justice Carter’s dissenting opinion), “‘It has been truly
said: “You can’t unring a bell.”’” (People v. Wein (1958) 50 Cal.2d
383, 423 (dis. opn. of Carter, J.).) But this aphorism has no force
of law. (See People v. Coddington (2000) 23 Cal.4th 529, 631
[“We do not agree that it is not possible, through instructions, to
‘unring the bell’ heard earlier. Rather, we assume the jury was
capable of following the court’s instruction here to disregard
evidence”], overruled on another ground in Price v. Superior
Court (2001) 25 Cal.4th 1046; People v. Maciel (2013) 57 Cal.4th
482, 529 [“Contrary to defendant’s contention that there ‘was
nothing the trial court could have done to “unring the bell,”’ had
defendant promptly raised the issue, the court could have . . .
(Fn. is continued on the next page.)
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The trial court acted well within its discretion in
finding no prejudice from Deputy Butt’s stricken testimony,
which it unequivocally admonished the jury to disregard.
Because appellant never renewed his motion for a mistrial,
we evaluate the court’s ruling at the time it was made, viz.,
immediately after Deputy Butt’s testimony was stricken.
(See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2020)
§ 647.) At that time, the jury had heard nearly all the
prosecution evidence, including unchallenged evidence that
(1) appellant had been found seated in the driver’s seat of
the stolen car, in which the steering column had been
removed and a screwdriver had been inserted into the
ignition; (2) appellant had been in possession of at least one
shaved car key, commonly used to steal cars; and (3)
unprompted, appellant had asked whether the deputy had
seen him driving the car, reasonably supporting an inference
that he knew the car was stolen. Indeed, appellant concedes
any reasonable juror would have interpreted appellant’s
question as reflecting knowledge that “‘he should not be
associating with that car.’” Further, the court was aware of
Deputy Butt’s anticipated testimony regarding appellant’s
false claim to have been washing the car, which reasonably
supported an inference of consciousness of guilt. Finally, the
court reasonably could have predicted that little or no
considered whether [prosecutorial] misconduct had occurred, and
if so, whether any prejudice was ‘“incurable by admonition or
instruction”’”].)
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defense evidence would be presented, given defense counsel’s
failure to mention any affirmative defense evidence in his
opening statement. In sum, in light of the overwhelming
prosecution evidence, the court had ample ground to find no
prejudice.
Appellant improperly relies on events that occurred
after the court denied his motion. Specifically, he argues
that the incurably prejudicial effect of the stricken testimony
was revealed by the prosecutor’s closing argument and the
jury’s request for readback. Even had the court known of
these matters at the time it ruled on the motion, they would
not have come close to compelling a finding of incurable
prejudice. Contrary to appellant’s characterization of the
prosecutor’s argument, the prosecutor placed no special
emphasis on appellant’s question, instead emphasizing the
evidence that the steering column had been removed and a
screwdriver had been inserted into the ignition. To the
extent the prosecutor did rely on appellant’s question, he did
so permissibly; the question itself had properly been
admitted, and the prosecutor merely advanced a reasonable
interpretation of the question as reflecting knowledge that
the car was stolen. Finally, the jury’s readback request
concerned appellant’s question, not Deputy Butt’s stricken
interpretation of it -- as shown by the foreperson’s
confirmation that the readback, which omitted the stricken
testimony, had satisfied the jury’s request.
People v. Navarrete (2010) 181 Cal.App.4th 828, the
principal case on which appellant relies, is distinguishable.
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There, a defendant charged with a lewd act on a minor made
an incriminating pretrial statement, which he successfully
moved to suppress. (Id. at 829-831.) At trial, a detective
willfully violated the suppression ruling, testifying that his
principal reason for foregoing DNA testing was a statement
the defendant had made, which he could not discuss further
because the court had ruled it inadmissible. (Id. at 831,
836.) The trial court struck this testimony and instructed
the jury to disregard it, but denied two defense motions for a
mistrial. (Id. at 831-832.) On appeal from the defendant’s
conviction, the Court of Appeal held that the trial court had
abused its discretion in denying the mistrial motions. (Id. at
834-836.) It reasoned that (1) because the prosecution
evidence had been “not overwhelming,” the jury likely had
inferred from the detective’s testimony that the defendant
had confessed; and (2) “even a single reference to an
inadmissible confession can be the sort of ‘exceptional
circumstance’ that supports granting a mistrial because a
curative instruction cannot undo the prejudice to the
defendant.” (Id. at 834-836.)
Here, the prosecution evidence was overwhelming, and
there were no exceptional circumstances akin to a reference
to an inadmissible confession. Appellant’s question was
neither inadmissible nor a confession. Deputy Butt’s
stricken testimony merely advanced a reasonable
interpretation of the question as reflecting knowledge that
the car was stolen -- an interpretation which the prosecutor
permissibly advanced in argument, and which the jury likely
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would have drawn had it never heard Deputy Butt’s stricken
testimony. We conclude the trial court acted within its
discretion in finding no prejudice and denying appellant’s
motion for a mistrial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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