P. v. Smyth







Filed 9/30/11 P. v. Smyth CA1/4




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE SMYTH, Defendant and Appellant.

A129263 (Contra Costa County Super. Ct. No. 05-1003680-0)

Charged with (1) assault with a deadly weapon (count one), accompanied by a great bodily injury enhancement and (2) making a criminal threat (count two), with further allegations of a prior prison term and a prior strike conviction, a jury found appellant Robert Lee Smyth guilty of making a criminal threat.[1] The court sentenced him to four years in prison. Now appellant challenges the denial of his motion for mistrial based on the jury hearing nonresponsive testimony about his prior jail stint. He claims violation of his federal and state constitutional rights to due process and a fair trial. We conclude no due process violation occurred; the state law error was nonprejudicial; and the trial court did not abuse its discretion in denying appellant’s motion for mistrial. Accordingly, we affirm the judgment.
I. FACTS
Willie Jones was appellant’s friend of 36 years. Appellant loaned Jones $500; the loan led to acrimony and threats.
On March 1, 2010, appellant and Jones had a telephone conversation about the debt. They agreed that Jones would pay down $200 on March 3 when Jones received a check, with the balance forthcoming from his next paycheck. The next day they spoke again. Appellant was unpleasant and loud, demanding all his money.
On the morning of March 3, 2010, Jones and his friend John Williams picked up Jones’s granddaughter on North Jade Street in Richmond. As Jones backed out of the driveway, appellant approached the driver’s side window of the SUV. According to Jones, appellant said, “[H]ey, MF you going to give me my money today‌ I’m going to kill you.” Williams testified he heard appellant talking about chasing down the mail carrier, “he wanted the F’ing money, he don’t get his money he is going to kill Mr. Jones.” Appellant’s demeanor was very serious; he “meant business” that day.
Jones drove to Market Street to the home of his brother-in-law, Albert Peterson, where he was expecting a check in the mail later that day. The three men went next door to play dominoes outside. After the check arrived, they all left to cash it. As they pulled out of Peterson’s driveway, appellant appeared, standing in the middle of the street. Appellant seemed angry, saying he wanted “his f’ing money out of the check” and “I’m going to f’ing kill” Jones.
Jones drove to the grocery store and went inside to cash the check. Jones testified that when he came out of the store, he walked to the vehicle, handed the money to Peterson, and got inside on the driver’s side. Appellant came to the window, saying “MF you going to give me this” and hit the mirror, window and back door with the back of his knife.
Williams testified that as Jones walked back to the SUV, appellant approached him in front of the vehicle, stood real close to him and demanded “all his fucking money,” again saying “he is going to kill” Jones. Appellant was upset. Worried that his friends would get into a fight, Williams got out of the vehicle and tried to calm appellant down. Williams further stated that while trying to calm appellant down, the two were “in each other’s face” and he pushed appellant back with his hand. They were close, “face to face,” and Williams was “pushing him, bumping, pushing him back.”
Appellant stabbed Williams two times in his arm, once on his side. He pulled off his shirt and exclaimed, “[O]h, I am stabbed.” Appellant was standing there as Williams was bleeding, but Williams did not see the knife. Jones passed Williams a baseball bat. Appellant ran into the grocery store and when he came out, Williams said he was going to kill him, and chased him back into the store, twice. Eventually Williams, Jones and Peterson decided to leave. Williams testified that appellant approached the vehicle and banged on the car windows with his knife.
Driving back to Market Street, they spotted appellant standing by a tree. Jones called the police. When the police came, appellant tried to give his knife to a bystander, but the bystander refused to hold it. Appellant dropped the knife prior to being arrested at gunpoint. Appellant made incoherent statements and resisted arrest. Inside the patrol car, he tried to kick out the windows.
About a month prior to the March 3, 2010 incidents, appellant, Jones and others went to a casino in Reno. Appellant was upset about the money Jones owed him, and was very aggressive toward Jones. Appellant said, “If you don’t [make] a payment, I’m gonna do something to you.” And shortly thereafter, “M.F., you going to pay me.” At one point appellant hit Jones with an umbrella. Jones pulled out a knife, and then appellant did the same. Jones drove off.
II. DISCUSSION
During his testimony, Jones stated, without prompting, that appellant had been in jail for 30 days or so. Defense counsel objected. The court instructed the jury to disregard the statement and not give it any consideration. Defense counsel moved unsuccessfully for mistrial.
Now appellant argues that Jones’s statement was “so prejudicial that it rendered [his] trial fundamentally unfair and deprived him of his constitutional due process rights.” Moreover, appellant contends that reversal is required under Chapman v. California (1967) 386 U.S. 18 because the People cannot establish that the constitutional error was harmless beyond a reasonable doubt.
Even in cases where the admission of evidence is erroneous under state law, no due process violation occurs unless the evidence is so prejudicial as to render the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70.) Certainly we recognize that exposing a jury to the prior criminality of a defendant presents the possibility of prejudicing his or her case, thereby rendering the outcome of the trial suspect. (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) However, Jones’s unsolicited statement did not result in a fundamentally unfair trial for appellant. There was no due process violation here.
To begin with, as a general matter we presume that a jury follows the trial court’s admonition to disregard improper evidence, especially in the absence of bad faith. (People v. Wash (1993) 6 Cal.4th 215, 263; People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.) Nonetheless there are exceptional circumstances, turning on the facts of each case, in which the admonition is insufficient to overcome the prejudicial effect of the improper subject matter. (People v. Olivencia, supra, at p. 1404.) This is not such a case.
As the prosecutor pointed out, the court had already instructed the jury on several occasions to disregard statements made by Jones that were rambling or off track. Additionally, the statement itself was nonspecific and brief, revealing no information as to why Jones was under the belief that appellant was in jail, and certainly nothing about the nature of any offense. We are not talking about a prior conviction or time in prison, but rather a short, 30-day jail stint. As such, the comment does not imply the commission of a violent act and was not of such an inflammatory or hateful nature that might make it difficult for jurors to unregister from their consciousness. (See People v. Ozuna (1963) 213 Cal.App.2d 338, 342, cited by appellant [prosecutor committed prejudicial misconduct in soliciting evidence that defendant referred to himself as an “ex-convict,” “a hateful word” that the jurors would have read in defendant’s features as he sat before them].) And we further note that throughout the remainder of the trial, neither party made further reference to the jail stay.
Moreover, this is not a situation where the jury was faced with making fact determinations based on assessing the credibility of a defendant and his or her witnesses versus the credibility of the prosecution’s witnesses. (See People v. Allen (1978) 77 Cal.App.3d 924, 934-935, also cited by appellant [testimony about defendant’s parole status was prejudicial and not cured by admonition and striking of the improper statement where jury had to decide facts in close case based on credibility of prosecution and defense witnesses (including the defendant)].) Appellant did not testify, nor did he offer any witnesses.
Further, at the close of trial, the court delivered additional curative instructions, reminding the jury that the attorneys may have objected to questions or moved to strike answers, and if the court “ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose.” Similarly, the court told the jurors that they must decide the case “based only on the evidence that has been presented to you in this trial. Do not let bias, sympathy, prejudice, or public opinion influence your decision.”
And finally, the jury acquitted appellant of the assault with a deadly weapon count, a charge more serious, and inherently violent, than the criminal threat charge. The verdict itself cuts against the notion that the jury disregarded the court’s directive not to consider Jones’s allusion to appellant’s time in jail, and allowed the reference to influence their deliberations.
Appellant argues to the contrary that the acquittal on count one, plus inconsistencies in the count two victim’s testimony, rendered this a close case in which the improper reference to his prior criminality caused the jury to want to convict him of something even though the weight of the evidence did not emphatically point to his guilt on the charged offenses. In other words, the improper reference played an adversely pivotal role. This argument is unconvincing. Had the jury been prejudiced against appellant because of prior criminality, it would have convicted him of both charges. Moreover, it was not a close case. Appellant asserts that the evidence was closely balanced on issues of whether his angry words communicated a serious intention to kill Jones; whether Jones had sustained fear for his own safety; and whether any such fear was reasonable given the nature of the relationship and Jones’s testimony that he was more sad or in fear of prison than in fear of being harmed. There was ample evidence of appellant’s guilt on the charge of criminal threats.
As to the seriousness of the threat, Williams testified that when appellant threatened to kill Jones, his demeanor was very serious, and he “meant business.” Jones, the object of the criminal threats, said he was scared for appellant’s life and his own, and he understood under the circumstances that appellant was prepared to follow through and he took the threat seriously. Further, Jones knew appellant routinely carried a knife, and believed he might have been armed with a gun or knife.
Jones was clear that he feared for his life, appellant had stalked him the entire day, and thus he was trying to keep his distance. His fear was reasonable given that appellant followed him that day and made repeated threats to kill him. Although Jones’s testimony was confusing at times and sometimes inconsistent, he was clear about the threats and how they affected him. Further, that Jones was also sad and feared going to prison more than he feared for his life, does not negate the fear for his safety. Indeed, the fear of going to prison solely pertained to the reality that he might have to defend himself. The situation between Jones and appellant had been festering for a month, and just one month prior, the two pulled knives on each other over the same dispute. Additionally, that appellant stabbed Williams points to the reasonableness and accuracy of Jones’s fear that appellant would use deadly force against a friend.
Appellant also apparently believes that the jury’s request for clarification of certain instructions indicates that the case was close and the unintentional blurt from Jones contributed unfairly to the verdict. We disagree. During the deliberations, the jury asked for guidance concerning the meaning of the term “unconditional” as used in the criminal threats jury instruction. The court responded that the word “unconditional” was meant “to prohibit prosecution based on threats whose conditions preclude them from conveying a gravity of purpose and imminent prospect of execution.” It further elaborated that unconditionality “must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect that the threat would be carried out.” Appellant leaps to the conclusion that the nonresponsive testimony referring to his prior jail time injected “a level of seriousness and criminality into the overall context in which the jury was instructed to consider” the criminal threats count. This comment is nothing more than pure speculation.
Appellant also maintains that even if the error did not amount to a violation of his due process rights, reversal is warranted under the prejudice test for state law error. No. For the same reasons outlined above, there is no reasonable probability that appellant would have enjoyed a more favorable outcome had Jones not spoken out of turn about his jail time. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Finally, the trial court did not abuse its discretion in denying appellant’s motion for mistrial on grounds that there was a “substantial risk” the jury would use the information from Jones’s statement “against him.” People v. Ayala (2000) 23 Cal.4th 225, 283 sets out our standard: “[W]e review a [trial court’s] ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” Stated a little differently: “ ‘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.]” (People v. Ledesma (2006) 39 Cal.4th 641, 683 (Ledesma).)
Denying the motion, the trial court first acknowledged that Jones’s statement referring to 30 days in jail was unsolicited and very brief. The court went on to state that it had stricken the answer and instructed the jury to disregard it, without repeating the content of the answer. In addition, the jurors had no information suggesting why Jones believed appellant was in jail or indicating that any act of violence occurred, and the stint in jail was relatively brief. The court further explained: “I fully recognized the concern of ringing the bell and the difficulty or the concern about the jur[or]s’ ability to disregard it, but my experience is that jurors do make a conscientious effort to disregard matters when they are told to. I think they fully understand that that was neither intended [nor] appropriate and that they will be able to decide the case fairly based on the evidence and that they will make every effort to follow my admonition. [¶] So I don’t think it [rises] to such a level of prejudice that the defendant cannot receive a fair trial . . . .”
Realistically, we know “ ‘it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.’ ” (Ledesma, supra, 39 Cal.4th at p. 683, quoting Smith v. Phillips (1982) 455 U.S. 209, 217.) And, although under certain circumstances a witness’s volunteer statement can support a finding of incurable prejudice, we do not presume that knowledge of a defendant’s prior criminality is incurably prejudicial. (Ledesma, supra, 39 Cal.4th at p. 683.) For example, the Ledesma court concluded that the jury’s knowledge that the defendant previously had been convicted of murder and sentenced to death was not incurably prejudicial. (Ibid.) So, too, denial of mistrial was proper because the lower court instructed the jury not to consider reference to the defendant’s recent imprisonment for any purpose, and the Supreme Court presumed the jury followed those instructions. (People v. Avila (2006) 38 Cal.4th 491, 573-574.)
This case falls squarely within the above authority. The isolated reference to time in jail was not so grave as to escape cure by admonition; denial of appellant’s mistrial motion was well within the bounds of the trial court’s discretion.
III. DISPOSITION
The judgment is affirmed.

_________________________
Reardon, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.


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