People v. Rodriguez CA1/1 ( 2016 )


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  • Filed 1/19/16 P. v. Rodriguez CA1/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION ONE
    THE PEOPLE,
    Plaintiff and Respondent,
    A143416
    v.
    ORLANDO RODRIGUEZ,                                                   (San Mateo County
    Super. Ct. No. SC075263A,
    Defendant and Appellant.                                    SC076373A)
    Appellant was convicted of assaulting his girlfriend on one occasion, and a year
    later, violating a stay-away order pertaining to the same person. He challenges his
    convictions based on a response by the girlfriend’s mother to a particular question asked
    by the prosecutor during his jury trial. The judge sustained the defense objection and
    admonished the jury several times to not consider the answer. The court properly denied
    a mistrial motion by defense counsel. We have reviewed the record and find no error and
    therefore affirm the conviction.
    STATEMENT OF THE CASE
    On February 29, 2012, and then on August 23, 2012, the District Attorney of San
    Mateo County filed separate informations, case Nos. SC075263 and SC076373. The trial
    court consolidated the two informations on November 30, 2012.
    On December 12, 2012, the district attorney filed an amended information
    charging appellant with infliction of corporal injury within seven years of three prior
    qualifying convictions (Pen. Code, § 273.5, subd. (a) & former subd. (e), now subd. (f)1
    (count 1)) and alleged an enhancement for having committed the offense while on bail
    and probation ineligibility based on having committed two prior felony offenses
    (§§ 12022.1, 273.5, 1203, subd. (e)(4)); misdemeanor violation of a stay-away protective
    order (§ 166, subd. (c)(1)) (count 2); and misdemeanor battery on a cohabitant (§ 243,
    subd. (e)(1)) (count 3).
    On December 17, 2012, the jury found appellant guilty of all charges. On
    December 18, 2012, the trial court found true the alleged prior convictions and bail
    enhancement allegation.
    On October 17, 2014, the trial court sentenced appellant to a term of 16 months
    consecutive to an 13-year term imposed for the offenses pending when appellant
    committed these offenses.
    On October 27, 2014, appellant filed his timely notice of appeal.
    STATEMENT OF FACTS
    A. The July 8, 2011 Incident.
    At trial, victim Amanda Sanchez was deemed unavailable and the district attorney
    was permitted to use the transcript from the preliminary hearing occurring on
    February 16, 2012, concerning the attack on July 8, 2011. The transcript was admitted
    pursuant to Evidence Code section 1291.
    Amanda Sanchez had been dating appellant for approximately four years.
    Sanchez stated she had been living with appellant for approximately one year on this date
    and she had a child who was 20 months old. On the night of July 7, 2011, Sanchez had
    gone out with her girlfriends after work. Appellant was entrusted with the care of the
    infant while she was out. Sanchez arrived home around 11:00 p.m. When she entered,
    Sanchez was irritated appellant had asked her to return sooner than she wanted. The
    1
    Unless otherwise stated, all statutory references are to the Penal Code.
    2
    couple began to argue, triggering crying from the infant and awakening the neighbors.
    The neighbors indicated they heard Sanchez scream several times during the
    confrontation and also noted banging on the walls.
    At the end of the fight, appellant left the apartment. Sanchez waited for a while
    until she was certain he was not returning. Around 12:55 a.m., she called police to report
    the matter. Sanchez advised the police appellant punched her in the face and threw her to
    the floor several times.
    Officer Keller was one of the police responders. He noticed an abrasion on her
    forehead and a laceration on the neck. Her face manifested redness consistent with
    punches to the area and Sanchez had recent carpet burns on her elbows and chest,
    suggestive of a struggle on the floor of the apartment. The victim also showed a large
    bruise on her hip. Photos were taken of her injuries. At the end of the interview,
    Sanchez asked for and received an emergency protective order from the officers.
    Around 11:00 a.m. that morning, Sanchez called police to tell them appellant had
    returned to the apartment and was taking a shower. Officer Basurto came to the
    residence and found appellant in the bathroom. Basurto also noticed Sanchez’s facial
    injuries. When Basurto saw appellant in the bathroom, Rodriguez was shirtless and
    exhibited no injuries at all. The officer arrested appellant based on the midnight incident
    and served him with a copy of the protective order. A few days after appellant’s arrest,
    the police came to the apartment and photographed the injuries to Sanchez. Her left eye
    was considerably darker in color and bruising on her leg was evident.
    During her testimony at the preliminary examination, Sanchez conceded she and
    appellant had scuffled that night, but she stated she was the aggressor and her injuries
    depicted in the photos arose as appellant tried to defend himself. Nevertheless, the
    magistrate held appellant to answer for the incident and issued a stay-away order
    precluding appellant from coming within 100 yards of Sanchez.
    3
    At the trial of the consolidated matters, appellant testified regarding the July 2011
    incident. He contended Sanchez was the aggressor and he acted only in self-defense.
    B. The July 16, 2012 Incident.
    On July 16, 2012, one year after the charged domestic violence matter and six
    months after the issuance of the stay-away order by the magistrate at the end of the
    preliminary examination, appellant returned to the Sanchez apartment. During this time,
    Amanda’s mother, Sandra Sanchez, was present in the home visiting her daughter and
    grandchild. Appellant came to the home around midnight and began banging on the front
    door. Sandra Sanchez suspected appellant had arrived because she had heard his
    motorcycle outside on the street.
    Amanda answered the pounding by appellant at the door but she would not allow
    him inside the unit. Sandra Sanchez noticed appellant appeared inebriated and was very
    hostile. He insisted on entering the apartment. He demanded that Sandra Sanchez leave
    the home. He eventually tried to push his way into the unit. This behavior terrified
    Sandra Sanchez and she closed the children’s bedroom door, grabbed her phone, and
    locked herself in the bathroom. She also called 911. The police quickly responded;
    however, appellant had already left.
    A few hours later, the police found appellant on a public street. He maintained he
    had left his own home because he was asked to leave after having a fight with his current
    wife and her uncle.
    Regarding the incident on July 16, 2012, at trial, appellant testified he was not at
    the Sanchez apartment. He claimed he had been home that evening with his wife and her
    uncle. He therefore did not violate any stay-away order.
    At the start of the trial of these matters, counsel stipulated appellant had sustained
    two prior domestic violence-related convictions in the County of San Mateo and that
    Amanda Sanchez was not the victim in either incident.
    4
    DISCUSSION
    At the outset, we observe the trial in this matter concerned two separate incidents
    occurring a year apart. The state prison sentence imposed here was for the act of
    domestic violence happening in July 2011. In that matter, the jury relied on the
    preliminary hearing transcript and police officer testimony. Amanda Sanchez provided
    no testimony at trial on the incident. The jury rejected appellant’s contention he was
    acting in self-defense when his girlfriend sustained the several blows depicted in the
    photographs and observed by the police.
    During the portion of the trial regarding the violation of a stay-away order, Sandra
    Sanchez stated her “belief” that while she was in the locked bathroom making a 911 call,
    appellant choked her daughter, Amanda. Counsel for appellant objected. The trial judge
    sustained the objection and told the jury to disregard the statement. A mistrial motion
    was denied. This is the sole challenge presented here on appeal.
    The witness, Sandra Sanchez, was relating the events on July 16, 2012. She was
    asked by the prosecutor:
    “[Q]: And as far as you know did [Amanda] have any injuries as a result of the
    pushing that had gone on at the front door if you know?
    “[A]: Other than he was choking her while I was in the bedroom.
    “[DEFENSE COUNSEL]: Objection.
    “[THE COURT]: No. Only testify to what you saw, not what you think might
    have happened.
    “[WITNESS]: Okay.
    “[THE COURT]: Please disregard the answer. It is not to be considered. There’s
    no evidence to that effect.
    “[PROSECUTOR]: Did you see any injuries on your daughter at all?
    “[WITNESS]: No.”
    5
    The defense then asked but two questions of Sandra Sanchez, when the trial for
    the day concluded. The defense then moved for a mistrial out of the jury’s presence. The
    defense stated: “[E]vidence that was not going to come in came in through hearsay. That
    was something that the witness did not see but the jury has now heard. And that will
    greatly affect the ability to defend on Count 1.” The trial judge denied the motion for
    mistrial. Both defense counsel and the court agreed the question by the district attorney
    to Sandra Sanchez was a proper question. The issue was the answer by the witness. The
    court then stated the issue was “whether the curative comment by myself is sufficient to
    solve this problem which admittedly is an improper statement by the witness.” The court
    then stated: “[A]t this point I’m going to deny the motion. If I think differently after a
    few hours reflection. At this point it happened quickly. It was dealt with quickly. It was
    one comment, not several, or extreme, or an extended one. It was one quick sentence. I
    believe it is cured. I promise I will think about it some more, but at this point, I deny the
    motion, the mistrial motion.”
    The following day, again outside the presence of the jury, the judge again
    reaffirmed his prior conclusion on the mistrial. He advised defense counsel that “I’ll
    leave it to you whether you wish me to say anything more to the jury or not. That’s your
    choice.” Defense counsel requested the jury be instructed on the blurted remark. In
    satisfying this application, the court told the jury at the start that morning: “Before we
    commence with the next witness I want to reiterate at the end of the day yesterday a
    statement was made by the last witness which I told you you were to disregard. I want to
    repeat there is no evidence to what was said by that witness at all. It is not part of this
    case. You are to assume it didn’t happen. And I mean I just have to trust that you are
    able to just set that aside. It is not part of this case in the least. So with that in mind we’ll
    proceed.”
    At the lunch break, defense counsel renewed his mistrial motion. He claimed the
    court should have advised the jury the choking remark was not true. Answering the
    6
    contention, the prosecutor advised the court and counsel the choking statement could
    have been true because it was based on the victim’s statements to police—a person who
    was unavailable—and the statements were only inadmissible because of that fact. The
    court acknowledged the arguments by defense counsel and the rebuttal by the district
    attorney. It concluded the ruling on the mistrial would not be changed.
    We review the denial of a motion for mistrial under the deferential abuse of
    discretion standard. (People v. Cox (2003) 
    30 Cal.4th 916
    , 953 (Cox); People v. Price
    (1991) 
    1 Cal.4th 324
    , 428.) A mistrial should be granted if the court is apprised of
    prejudice that it judges incurable by admonition or instruction. “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. Jenkins
    (2000) 
    22 Cal.4th 900
    , 985–986.)
    In People v. Leavel (2012) 
    203 Cal.App.4th 823
    , a witness from the San
    Bernardino County Sheriff’s Department testified on direct examination he was asked to
    obtain a swab of defendant’s DNA. He indicated he obtained the item with a search
    warrant from the accused while he was housed at the “West Valley Detention Center.”
    The trial court ordered a recess and questioned the prosecutor regarding the deputy’s
    answer identifying the custodial status of the defendant. The district attorney advised the
    court he did not anticipate the reference to the custodial facility being disclosed. The
    court denied the mistrial motion by defense counsel. The court did tell the jury they were
    to disregard the reference by the deputy sheriff. There was no evidence the jury did
    consider the stricken answer in any way in the record. (Id. at pp. 830–831.)
    The Court of Appeal noted: “[T]he [trial] court acted within its discretion by
    denying Leavel’s mistrial motion. The single reference to a detention center was easily
    cured by striking the evidence and admonishing the jury to disregard it. A presumption
    arises that the jury followed the court’s admonishment [citation], and Leavel has not
    rebutted the presumption.” (People v. Leavel, supra, 203 Cal.App.4th at p. 831.)
    7
    Here we are also dealing with a single remark by a witness. The court
    immediately advised the jury to disregard the volunteered statement and repeated this
    admonition the very next day before the beginning of the trial. Additionally, the
    statement was given by a lay witness whose answer went beyond the actual question by
    the prosecutor. The record does not support any complicity by the district attorney in
    what the witness stated. There was no “ ‘intentional’ ” effort to “ ‘elicit inadmissible
    testimony.’ ” (Cox, 
    supra,
     30 Cal.4th at p. 952; People v. Bonin (1988) 
    46 Cal.3d 659
    ,
    689.) It is also true this trial judge gave several specific and unambiguous admonitions to
    the jury on the heels of the volunteered statement to disregard the improper remark. This
    is generally sufficient to address the issue. (People v. Pitts (1990) 
    223 Cal.App.3d 606
    ,
    692.) The general rule is that jurors are presumed to have followed the court’s
    instructions on the law and evidence. (People v. Sanchez (2001) 
    26 Cal.4th 834
    , 852.)
    Appellant has not demonstrated any basis to disregard these principles.
    It is also the case that any error here is evaluated under People v. Watson (1956)
    
    46 Cal.2d 818
    , 836. While appellant contends the error violates due process and is of
    federal constitutional dimension, the fact remains any error in the receipt of evidence in a
    criminal trial is subject to the Watson standard of prejudice. (People v. Gamache (2010)
    
    48 Cal.4th 347
    , 376.)2
    Appellant contended at the trial he was not present at the apartment when Sandra
    Sanchez related the incident challenged here. His uncorroborated defense was alibi. He
    did not violate the stay-away in any fashion, let alone touch Amanda Sanchez, because he
    was not present. The jury could elect to believe the testimony of Sandra Sanchez and the
    911 tape on the July 2012 incident. Also, appellant was not found at his home but instead
    was arrested on the street. As to the effect of the remark on the July 2011 battery,
    2
    If we assume the error was one of federal constitutional dimension, we would find it
    harmless beyond a reasonable doubt. It would not satisfy the standard of Chapman v.
    California (1967) 
    386 U.S. 18
    , 24.
    8
    appellant contended he was the victim of Amanda Sanchez’s aggression. Yet the jury
    had the photos and evaluated the locations of her physical bruising. They also had the
    testimony of several police officers and the observation by Officer Basurto, who saw
    appellant shirtless and without any evidence of physical trauma.
    In summary, the trial court properly exercised its discretion when it denied the
    mistrial motion. A lone blurted remark by a lay witness promptly cured by the trial court
    on successive days of the trial was enough to correct any contrary spin by appellant here.
    CONCLUSION
    Finding no merit to the challenge, we affirm the judgment in this case.
    9
    _________________________
    DONDERO, J.
    We concur:
    _________________________
    MARGULIES, Acting P.J.
    _________________________
    BANKE, J.
    A143416
    10
    

Document Info

Docket Number: A143416

Filed Date: 1/19/2016

Precedential Status: Non-Precedential

Modified Date: 1/20/2016