P. v. Gonzalez

Filed 8/17/07 P. v. Gonzalez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, John Conley, Judge. Affirmed.

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Freddy Gonzalez of first degree burglary (Pen. Code,  459, 460, subd. (a)),[1] three counts of robbery, ( 211, 212.5, subd. (a)), two counts of false imprisonment ( 236, 237, subd. (a)), assault ( 245, subd. (a)(1)), and misdemeanor vandalism ( 594, subds. (a), (b)(1)). The jury also found defendant personally used a deadly weapon to commit the robbery offenses. ( 12022, subd. (b)(1), 1192.7.) Defendant argues his attorney rendered ineffective assistance of counsel by failing to seek a mistrial or, alternatively, the trial court violated his right to a fair trial by failing to declare a mistrial sua sponte. Specifically, defendant contends a mistrial was required after a witnesss mother complained aloud in Spanish from the gallery that he made a threatening hand gesture at her during trial. Defendant also claims the trial court misinstructed the jury to view his oral statements to police with caution (CALCRIM No. 358). For the reasons discussed below, we conclude these contentions have no merit, and we therefore affirm the judgment.

I

Factual And Procedural Background

On July 19, 2005, defendant entered the apartment of two female roommates, Jesus Hernandez Acquino and Irma Baltazar. Baltazars 11-year-old daughter, Crystal, sat watching television in a bedroom when she saw defendant approach. Before she could close her door, defendant grabbed her and held a knife to her neck. Demanding money, defendant began rifling through drawers. Acquino returned home and defendant seized her as well, reiterating his demand for valuables. Defendant stuffed his victims necklaces and other jewelry in a backpack and forced them down a flight of stairs into a bathroom. According to Acquino, defendant ordered them to remain in the bathroom or he would kill them.[2]

As defendant continued to ransack the apartment, Baltazar came home with her two-year-old and five-year-old sons. She heard her daughters cries and, when she saw defendant across the room, she demanded to know what he was doing there. Exclaiming the lady that lives here stole it from me, defendant displayed some money, made an upward slashing motion towards Baltazar with his knife, and then fled the apartment.

Acquino and Crystal exited the bathroom, and Baltazar followed defendant out of the apartment, screaming for help. She pointed defendant out to a group of nearby young men. One of the men, Hector Ramirez, confronted defendant but retreated when defendant brandished a large knife. Ramirez ran to his vehicle and moved it to block defendants van. Defendant backed into Ramirezs car, causing about $400 in damage before he escaped.

The police later apprehended defendant and he gave a videotaped statement in which he claimed new medication he began taking that day to combat his drug addictions caused him to break into the apartment. He stated, I was talking crazy . . . . I almost got into a couple of accidents. Im fuckin, Im lost on this fuckin medication they gave me . . . . Its uncontrollable, it[] got me all fucked up . . . .

Defendant claimed he obtained the medication from his detox program. He claimed he selected Baltazars apartment because he believed he could buy illegal drugs from a dealer there, but he admitted scouting the home and entering through a back door. He admitted the events occurred largely as Acquino and Crystal had described them in their statements, including that he dragged them down the stairs and forced them into a bathroom. He recalled that when Baltazar arrived, he started acting like I was crazy, just talking nonsense, telling her they ripped me off. He claimed to know nothing about a knife until, when the young men confronted him, a large blade fell out of the backpack he had taken from the apartment. He was able to evade Ramirez by backing into his car to push it out of the way so he could drive off. According to defendants account to police, he threw away the proceeds of his heist.

At trial, Baltazar remained in the courtroom without objection from defense counsel after she testified. In the midst of Crystals testimony, Baltazar interrupted the proceedings with a statement in Spanish addressed to her daughter. The following exchange ensued: [Prosecutor]: This is the witnesss mother, Your Honor. She is saying she wants to take her child to go home. [] Alternate Juror[]: She is telling her daughter that she would like her to tell you that she wants her to leave the courtroom. [] The Court: All right, maam. Im going to ask you to leave the courtroom. Please escort her out. [] Alternate Juror[]: She is feeling that the defendant is threatening her with hand gestures. [] The Court: Well, I noticed no hand gestures, but I was looking down. The court ordered a brief recess, after which Crystal completed her testimony.

The next day, the trial court raised Baltazars outburst with counsel. According to the prosecutor, Baltazar explained that defendant prompted the interruption by reaching around his body and simulating a weapon with his fingers pointed at her. Defense counsel suggested questioning the jurors whether they observed anything and whether the incident would affect their deliberations. Alternatively, defense counsel noted, [T]he other option is to mistry the case. The trial court considered recalling Baltazar to describe what she saw exactly, but decided to first question the jurors before taking this step.

The court called the jurors into the courtroom, and addressed them as follows: I wanted to chat with you a little bit about the incident with Miss Baltazar getting up in the courtroom and saying something yesterday. Im wondering, first of all, do we have any other Spanish speakers on the jury besides Juror 222? We have Juror 123. [] Im wondering if any of you, based on that and just, I dont want to hear any words. Just raise your hand. If any of you, based on that statement that she made, feel you cannot be fair at this point, or you have some concerns about being fair at this point? Anyone feel that? Im seeing no hands. [] In respect to what she said, is there anyone who feels they saw something and dont tell me what it was, but just whether you saw something that when you get back in deliberations would become pertinent? Maybe? Im assuming like the rest of us you were focused probably on the witness. So, does anyone have anything that we should talk about maybe in private about that incident?

No juror responded affirmatively to the trial courts inquiry. No juror indicated he or she had seen the defendant make any gesture. The court concluded: In view of the facts of the uncertainty of the whole thing, Im going to order that you disregard that statement and the outburst and not consider it in your deliberations. The trial court determined the trial should proceed, and defense counsel responded, Thats fine. The prosecution continued with its case-in-chief. The defense called no witnesses.

As noted, the jury returned a verdict convicting defendant of burglary, three counts of robbery, two counts of false imprisonment, assault, and misdemeanor vandalism. The jury, however, acquitted defendant on the charge of making criminal threats against Crystal during the break-in. The trial court found defendants four prior felony convictions qualified as strikes, and imposed a prison term of 25 years to life on the first robbery count, with a consecutive 20-year term based on the priors. The court imposed concurrent sentences for the other two current robbery convictions, and stayed punishment pursuant to section 654 on the remaining counts. Defendant now appeals.

II
Discussion

A. No Grounds for Reversal in Counsels Failure to Seek a Mistrial, or in the

Trial Courts Failure to Declare a Mistrial Sua Sponte

Defendant contends his trial attorney rendered ineffective assistance of counsel by failing to seek a mistrial after Baltazars outburst. Alternatively, he argues the trial court should have declared a mistrial sua sponte to preserve his right to a fair trial. We conclude defendants arguments are without merit because no mistrial was warranted. No juror observed defendant make any threatening gesture; rather, the incident consisted only of a fleeting interruption and comment by Baltazar in Spanish, which the court admonished the jury to ignore. We presume the jury heeded the courts admonition and disregarded the matter. (People v. Holt (1997) 15 Cal.4th 619, 662 (Holt); People v. Houston (2005) 130 Cal.App.4th 279, 312.) Additionally, as we explain below, having admitted to police he committed the conduct underlying the charged offenses, defendant fails to demonstrate how Baltazars conduct or the trial courts thorough, considered response prejudiced him or influenced the jurys verdict. (Cal. Const., art. II,  13.)

Spectator misconduct is a ground for mistrial if it is of such a character as to prejudice the defendant or influence the verdict. (People v. Chatman (2006) 38 Cal.4th 344, 368-369.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter . . . . (People v. Avila (2006) 38 Cal.4th 491, 573.) 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 (Martin).)

Defendant suggests Baltazars outburst was somehow incurable because she was a witness herself, as if the jury thereby automatically gave her word greater credence. But admonitions are generally deemed to redress inflammatory interruptions by spectators and witnesses alike, since the jury is charged to decide guilt based only on admissible evidence. (People v. Lucero (1988) 44 Cal.3d 1006, 1022; Martin, supra, 150 Cal.App.3d at pp. 162-163.) Thus, we find no merit in defendants complaint the trial court allowed his purported hand gesture to be introduced as prejudicial uncharged misconduct; to the contrary, the court instructed the jury to ignore the matter entirely. Similarly, the incident did not amount to damning testimony unfairly exempt from confrontation; it was not evidence at all testimonial or otherwise.

Defendant implies the jury could not ignore the incident because it carried overtones of a physical threat the jurors may have believed extended to their personal safety. No juror, however, expressed any unease despite the trial courts precautionary offer of a private audience. No juror observed any untoward acts by defendant in the courtroom. At most, the jury heard a third-hand account via translation of an adversarial witnesss claim, which the court instructed the jury to ignore. The trial court characterized the whole disturbance as uncertain[], and it appeared to trouble neither the court, nor the jury. Because the trial court is in the best position to evaluate the impact of courtroom events, its decision whether to declare a mistrial is accorded wide discretion. (People v. Cornwell (2005) 37 Cal.4th 50, 87 (Cornwell).) We discern no abuse of discretion.

Due process requires that every criminal defendant has the right to be tried in an atmosphere undisturbed by public passion (People v. Houston (2005) 130 Cal.App.4th 279, 311), but prejudice is not presumed; the defendant must establish it. (Cornwell, supra, 37 Cal.4th at p. 87.) Thus, even assuming arguendo counsel should not have abandoned her initial mistrial suggestion, a defendant asserting ineffective assistance of counsel must demonstrate a reasonable probability a more favorable outcome would have resulted. (People v. Carter (2005) 36 Cal.4th 1114, 1189.) Defendant argues a mistrial would have been a more favorable outcome than conviction, but the trial court properly declined to order a mistrial.

Simply put, having admitted to police that he committed patently criminal actions at the scene, defendants case turned on his claim of voluntary intoxication, but since Baltazars outburst did not compromise that defense, there were no grounds for a mistrial. First, most of the charged crimes, including false imprisonment, assault, and vandalism, were general intent crimes. As the trial court correctly instructed the jury, voluntary intoxication is no defense to such offenses. (See, e.g., People v. Hood (1969) 1 Cal.3d 444, 455-458 [assault is a general intent crime that is not susceptible to negation through showing of voluntary intoxication].) Accordingly, Baltazars outburst cannot be said to have affected a defense that was nonviable.

Second, while the burglary and robbery offenses required specific intent, which voluntary intoxication may negate, defendants statement to the police did not suggest his asserted detox medication prevented him from forming the requisite intent. Rather, he was clear that, despite the medication, his driving motivation at the apartment was to obtain dope and money and he intended to deprive his victims of either or both. In sum, given defendants admissions concerning his conduct and capacity for specific intent, Baltazars outburst did not affect his defense or the verdict. In the absence of prejudice or any possible effect on the verdict, defendants claims a mistrial should have been requested or ordered are without merit.

B. No Instructional Error

Defendant contends that because his statement to police was videotaped, the trial court erred in instructing the jury with CALCRIM No. 358 in its entirety. The instruction provides, in two paragraphs: You have heard the defendant made an oral statement before trial. You must decide whether or not the defendant made any such statement in whole or in part. If you decide the defendant made such a statement, consider the statement, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give such a statement. [] You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded. (Italics added.) Below, defense counsel requested, I would assume we would just leave that last sentence in, though [we] obviously know that they saw a tape, and the trial court acquiesced.

Defendant contends his trial attorneys request constituted deficient assistance of counsel and that the court violated its duty to ensure the jury is instructed correctly. Defendant contends inclusion of the second paragraph was prejudicial because it caused the jury to abandon its deliberative role and accept without caution his admissions in the statement. We are not persuaded. Defendant fails to grasp that the second paragraphs purpose is foundational, directing the jurors to examine with caution the accuracy of statements attributed to the defendant by a witness, as where an officer recounts a police interview in court. By its terms, the second paragraph did not apply to defendants videotaped statement and we therefore presume the jurors disregarded it. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) We note the court provided the jurors with CALCRIM No. 200, alerting them explicitly that some of these instructions may not apply . . . .

Moreover, there is no reason to suppose the jury abandoned its deliberative role as defendant suggests, since the first paragraph of the CALCRIM No. 358 explicitly informed them, It is up to you to decide how much importance to give to such a statement, and other instructions reminded them, You must decide what the facts are and It is up to you, exclusively, to decide what happened . . . . (CALCRIM Nos. 200, 222; see Holt, supra, 15 Cal.4th at p. 644 [jurors are presumed to apply instructions as a whole].) We conclude the trial court did not err in giving an instruction trial counsel explicitly requested, and which posed no possible harm to defendant.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All further statutory references are to this code unless otherwise specified.

[2] Crystal did not recall any death threat, and declined to review her preliminary hearing testimony, believing it was consistent with her trial testimony.