P. v. Rojas

Filed 4/11/07 P. v. Rojas CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan M. Speer, Judge. Affirmed with modifications.

Rebecca F. Thornton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Following a jury trial, appellant Rogelio Bejar Rojas was convicted of one count of first degree residential burglary. At bifurcated proceedings, he admitted a previous conviction for burglary, which was alleged as a prior strike, a prior serious felony, and a prior prison term. He was sentenced to a total of 13 years in state prison, with 206 days of presentence credits. He appealed. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues.  Appellant was notified that he could file his own brief, and did not do so.

After reviewing the record, we asked for supplemental briefing on this issue: Should a mistrial have been declared after Officer Medina testified that the defendant told him he had just been released from prison?

Having reviewed the supplemental briefing from both sides, we have concluded that no prejudicial error occurred. We therefore affirm.

FACTS

Two of the burglary victims neighbors played an active role in the case.

Neighbor No. 1 lived directly across the street from the victims house. She saw appellant jump over the fence onto the victims property. She had never seen him before. His hands were empty. Ten or 15 minutes later, he walked out of the front door of the victims home. He now held a suitcase. He also was wearing a jacket and hat that he had not previously worn. Neighbor No. 1 lost sight of him.

Neighbor No. 2 saw appellant walking along the street. About 15 minutes later, when he again saw appellant walking on the street, appellant was carrying two items he had not previously held, a suitcase and another large item. Neighbor No. 2 spoke to neighbor No. 1. Neighbor No. 2 watched appellant walk several blocks and saw him go towards the parking lot behind a church. Neighbor No. 2 got in his car and drove to that parking lot. He saw the suitcase and other items against a wall, covered by some old carpeting. Appellant was not there.

Neighbor No. 1 drove around in the area, looking for appellant. About two blocks away, she saw him in the parking lot of a supermarket. She called the police on her cell phone. She followed appellant to his car, noting its color, type, and license plate number. She told appellant that she had seen him commit the crime, and the police were coming. He drove away. She gave the police the details about the car.

Several hours later, the police drove neighbor No. 1 and neighbor No. 2 to a field showup. They both identified appellant. The police found the victims missing property in appellants pockets, car, and apartment. When interviewed by Police Officer Medina, he confessed to the burglary.

No defense was presented.

DISCUSSION

1. The Motion for Mistrial

Officer Medinas summary of appellants confession began with the fact appellant said he was on parole and had recently been released from prison. Appellant maintains that the trial court should have granted the motion for mistrial that his counsel made following that unexpected testimony.

A. The Record

Medinas description of appellants statement began with these words: He said that he was driving around in a small neighborhood street because he doesnt like to drive in the major streets, hes afraid of the police because he just got out of prison. So they told him to stay away from the police, no contact with police, so he likes to avoid the major streets. Medinas direct examination then continued with appellants description of the commission of the burglary.

At the end of that direct examination, defense counsel moved for a mistrial. He complained that the summary of the interview in Medinas report did not mention that appellant said he had recently been released from prison, and Medina should have known not to blurt[] out gratuitously this kind of information . . . .

The prosecutor responded, I didnt know what he was gonna say in terms of that. He argued that the circumstances did not require a mistrial. Medina had given him a tape of the interview and he had provided a copy to defense counsel.

Both counsel told the court that they had listened to the tape. The interview was conducted in Spanish. The prosecutor spoke Spanish, but defense counsel did not. The court asked the prosecutor if appellants reference to state prison was on the tape. The prosecutor was nonresponsive in his answer. He stated: I speak Spanish fluently and I did listen to the tape. A lot of what the defendant said was hard to hear. Both counsel agreed that the tape was largely inaudible. There was no transcript of it, and it would be very difficult to make a transcript.

The trial court then ruled: It seems to me if the defense had a copy of the tape whether it was in good quality or not, they could have had it transcribed, asked the court to have it transcribed. But the fact it was on the tape, I think its fair game that it came out. If it wasnt on the tape and the defense had no notice, thats something different. Im not going to declare a mistrial, but I will instruct the jury to disregard.

No such instruction was given, as defense counsel asked the court not to give it, to avoid calling further attention to the statement. Outside of the jurys presence, under questioning by defense counsel, Medina said he had written notes of the interview, in addition to the summary of appellants statement in his report. The summary in the report was based on his notes and on his memory of the interview. The report was written soon after the interview. The reference to prison was in the notes, and also appeared on the tape, but it was not included in the section of the report that summarized appellants statement. The fact that appellant was on parole was set forth elsewhere in the report.

Defense counsel renewed the motion for mistrial. The trial court denied it, stating: I dont find its that prejudicial and I think defense was on notice that statement could be used. At counsels request, Medina was admonished to make no further references to prison, parole, or appellants other criminal history. The prosecutor promised not to refer to those subjects in his argument to the jury. That portion of Medinas testimony was stricken, in case the jury requested rereading of that testimony.

At the conclusion of testimony, the prosecutor wanted defense counsel to either testify or stipulate that the prosecutor gave him a copy of the tape of the interview. Defense counsel objected. The court denied the prosecutors request. Defense counsel promised not to argue that there had been any discovery violation. The court gave him permission to argue that the prosecution could have played a tape or presented a transcript of appellants statement, instead of having the officer testify regarding its contents.

B. Analysis

To summarize the record: Defense counsel was surprised by Officer Medinas testimony that appellant said he was on parole and had recently been released from prison, as the tape of the police interview was largely inaudible, and the summary of appellants statement in the police report did not mention those facts. The prosecutor, who spoke Spanish, equivocated about whether he himself had heard the reference to prison on the tape. Appellants parole status and recent release from prison was not mentioned at any other point in the trial.

Appellant maintains that the trial court abused its discretion when it denied his motion for mistrial, resulting in a violation of his rights to due process of law and a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution. We do not agree.

Courts have recognized the risk that evidence of a defendants other crimes will be improperly used to show criminal disposition. (People v. Guerrero (1976) 16 Cal.3d 719, 724; People v. Bracamonte (1981) 119 Cal.App.3d 644, 650, disapproved on another point in People v. Calderon (1994) 9 Cal.4th 69, 80.) Introduction of such evidence can result in a denial of due process of law. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1385.) However, even assuming arguendo that there was a violation of federal due process here, the error was harmless beyond a reasonable doubt. (Chapman v. California (1966) 386 U.S. 18, 24; People v. Bolden (2002) 29 Cal.4th 515, 554-555 [due process not denied through denial of mistrial motion arising from isolated reference to the defendants parole office]; People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [mistrial motion properly denied after a witness mentioned that the defendant was on parole; overwhelming and undisputed evidence of guilt].)

The information about appellants release from prison and parole status came before the jury only once, while Medina was describing what appellant told him during the interview. This is therefore not a case in which erroneously admitted evidence permeated the trial. Moreover, the strength of the prosecutions case was overwhelming. One neighbor saw appellant walk out of the victims front door with stolen property. Another neighbor saw him walking down the street with stolen property. The neighbors tracked him down, and were positive about their identifications. He was arrested with stolen property in his pocket. There was more stolen property at his apartment. He confessed to the crime. There was no defense. The jury returned its verdict in under half an hour. The combination of these circumstances compels the conclusion that appellant was not prejudiced by what Medina blurted out from the witness stand.

2. Clerical Error

We have detected a clerical error. The penalty for first degree burglary is two, four, or six years in prison. (Pen. Code, 461.) The reporters transcript shows that on March 21, 2006, at the sentencing hearing, the trial court imposed a 13-year sentence. The sentence was based on the midterm of four years, doubled for one strike, plus five years for the prior serious felony conviction. The abstract of judgment correctly reflects that penalty. However, page 1 and page 2 of the minute order for March 21, 2006, both state that the trial court selected the upper term of 4 years.

The record of the oral pronouncement of the court controls over the clerks minute order . . . . (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)

To avoid possible confusion, the language on pages 1 and 2 of the March 21, 2006 minute order must be changed, from the upper term of 4 years, to the midterm of 4 years.

DISPOSITION

The clerk of the superior court shall correct page 1 and page 2 of the March 21, 2006 minute order, to state the midterm of 4 years, instead of the upper term of 4 years. A corrected copy of that minute order shall be sent to the Department of Corrections. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BOLAND, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.