P. v. Collaso

Filed 6/15/07 P. v. Collaso CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmond G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Guillermo Collaso challenges his conviction for kidnapping and carjacking, contending the trial court erred in denying his motions for mistrial. Collaso argues the prosecutor violated his right to a fair trial when she (a) asked the victim if he believed his assailant was a gang member; (b) introduced an audiotaped interview in which the word gangsters was heard; and (c) made a reference to gangs during closing argument.

We conclude the foregoing did not deny Collasos due process right to a fair trial. The witness never answered the prosecutors question on whether the assailant was a gang member and the trial court admonition to the jury cured any prejudice from the question. The audiotapes reference to gangsters was a barely audible and random reference without context, furnishing no basis for the jury to believe the comment referred to Collaso. Moreover, the defense did not request an admonition after the gangster reference. Finally, the prosecutors closing argument did not allude to gangs, but concerned a fair comment on the evidence presented regarding Collasos threat to the victim. Accordingly, we affirm.

I

Factual and Procedural Background

As Antonio Garcia entered his sons Honda parked at a car wash in Anaheim, Collaso got into the passenger side of the car, pointed a gun at Garcia, and ordered him to drive. A few blocks later, Collaso told Garcia to stop and get out of the car, and threatened to kill Garcia if he called the police. Garcia jumped out of the car, and Collaso climbed into the drivers seat and drove off. Garcia did not call the police, but walked home and told his wife what had happened. Garcias wife called their son, who then contacted the police.

The following day, the police found the Honda parked in a nearby neighborhood and placed it under surveillance. A woman, Anna Ponce, entered the car and drove it away. A pursuit ensued and ended when Ponce crashed the car into a police vehicle. After investigation, detectives arrested Collaso.

In a pretrial hearing, defense counsel sought to exclude any evidence or reference regarding gangs. The court did not grant a blanket exclusion, reasoning that a witnesss belief that Collaso was a gang member, whether correct or not, might be relevant to the charge of dissuading a witness from reporting a crime. At a later hearing, the court noted a witnesss belief that Collaso was a gang member might be relevant to the witnesss state of mind if the witness were fearful to testify. The court also observed, [T]he Supreme Court has been fairly consistent over the years that the term gang or gang member is such a prejudicial term, that, absent relevance, it is extremely prejudicial to bring those issues before the jury. The court represented it would not rule on the issue until it had heard the particular witness testify, and that it would require a sidebar conference, if not a 402 hearing before it will even be discussed in open court.

Garcia testified on direct examination that he did not recognize his assailant in the courtroom. The prosecutor then asked, The person that got in your car on the night of November 3rd, did you believe that person was a gang member? Collaso objected, and at a sidebar conference the court reprimanded the prosecutor for raising the gang issue in front of the jury and prohibited the prosecutor from raising the issue again without first asking for a hearing. The court declined Collasos request for mistrial, however, because the witness had not answered the question, and the court believed the prosecutor merely had made a good faith mistake. Collaso requested the court to admonish the jury there was no evidence that Collaso is or was a gang member, and that the issue of gangs had no relevance in the proceedings. The court declined this request, and instead issued the following admonishment: Ladies and gentlemen, yesterday I told you not to consider anything the attorneys say as evidence. Ill tell you to disregard the last statement from the prosecutor.

Five days later, the prosecutor played a tape recording of a police detectives interview with Ponce, which the court and counsel believed to have been redacted. As the tape started, the word gangsters could be heard. Collaso again moved for a mistrial. The court responded that the portion of the tape heard was pretty much unintelligible, and ruled: [T]his is a no harm, no foul, in that there was no context. Frankly, the only thing I heard in that passage was the word gangsters, without any further context or reference to anybody. The motion is denied. Defense counsel did not request a jury admonition, and the court did not give one.

The jury convicted Collaso of kidnapping during the commission of a carjacking (Pen. Code, 209.5, subd. (a);^[1]carjacking ( 215, subd. (a)); and dissuading a witness from reporting a crime ( 136.1, subd. (b)(1)). The jury also found true the allegation that Collaso personally used a firearm during the carjacking and when he dissuaded a witness ( 12022.53, subd. (b), 12022.5, subd. (a)). The court found two prior prison allegations ( 667.5, subd. (b)) to be true and sentenced Collaso to life without the possibility of parole, plus eight years.

II

Discussion

A trial court should grant a motion for mistrial only when a partys chances of receiving a fair trial have been irreparably damaged [citation], that is, if it 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. [Citation.] Accordingly, we review a trial courts ruling on a motion for mistrial for abuse of discretion. [Citation.] (People v. Avila(2006) 38 Cal.4th 491, 573.)

Collaso contends the prosecutor violated his right to a fair trial when he asked the victim about the assailants possible gang membership. Collaso complains the prosecutor compounded the error by introducing a reference to gangsters in a tape recording of a witnesss police interview, and when the prosecutor alluded to gangs during her closing argument. As Collaso notes, evidence of gang membership poses a substantial risk of prejudice and should not be admitted if it has minimal probative value. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Indeed, in many cases such evidence may be highly inflammatory. (People v. Cox (1991) 53 Cal.3d 618, 660.)

Here, no evidence was admitted linking Collaso to a gang. The prosecutor asked a single question of Garcia about his assailants possible gang membership, and the witness did not provide an answer. The court admonished the jury that questions are not evidence, and instructed the jury to disregard the prosecutors comment. The court later instructed the jury that the attorneys questions are not evidence.

Absent evidence to the contrary, we presume jurors will follow a courts admonitions and instructions. (People v. Houston(2005) 130 Cal.App.4th 279, 312). 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, Collaso cites nothing in the record indicating the jurors did not follow the courts admonitions and instructions.

The reference to gangsters on the audiotape was barely audible and lacked any context or reference to Collaso. Moreover, the jurys copy of the audiotape transcript did not contain the word gangsters. Perhaps in recognition of these facts, Collasos counsel did not request an admonition. It is unlikely the jury would have been prejudiced by a fleeting reference to gangsters on the audiotape, and any such prejudice could have been cured by admonition, had one been requested.

Finally, we disagree with Collasos assertion that the prosecutor alluded to gangs in her closing statement. The challenged allusion occurred in the opening paragraph of the closing statement: How terrifying, right? How terrifying would it be to be picking up dog food and tortillas and have somebody get in your car with a gun and force you to drive somewhere where you dont know where youre going? How incredibly terrifying. And that river of terror flows underneath this case because thats the defendants way of controlling the outcome, right? Intimidation, fear, and terror. Nothing in the foregoing alludes to gangs. True, gangs spread intimidation, fear, and terror. But an individual not connected with a gang may do the same thing. This portion of the closing statement merely refers to Collasos alleged intimidation of Garcia, in threatening to kill him if he contacted the police, and Garcias apparent unwillingness to identify Collaso as his assailant in court. We find nothing improper in this portion of the prosecutors closing statement.

We conclude the trial court did not abuse its discretion in denying Collasos mistrial motion.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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^[1] All statutory references are to the Penal Code.