P. v. Hosaka

Filed 1/12/07  P. v. Hosaka CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge.  Affirmed and remanded for correction of the record.

            A jury convicted Dayton Maui Hosaka (Hosaka) of resisting an executive officer.  (Pen. Code, §  69.)^[1]  Hosaka waived trial by jury on allegations of prior convictions, and the court found he had a prior strike (§§  667 subds. (b)-(i), 1170.12, 668) and had served three prior prison terms (§§  667.5 subd. (b), 668).  The court sentenced him to prison for seven years:  double the two-year middle term for resisting an executive officer with a prior strike conviction enhanced by three one-year terms for the prior prison terms.

FACTS

            On September 9, 2005, Oceanside Police Officer Marc Kalb stopped the vehicle Hosaka was driving for a seatbelt violation.  Kalb learned that Hosaka driver's license was suspended.  Kalb ran a radio check and found that Hosaka had an outstanding arrest warrant.  Kalb reached into the car Hosaka was driving and grabbed his wrist.  Hosaka started to squirm, jerked his shoulders, and head butted Kalb.  A struggle ensued and Hosaka struck Kalb several times.  Hosaka broke free and ran.  Eventually four officers overcame Hosaka's resistance.

            In 1995 Hosaka entered a guilty plea to residential burglary, (Pen. Code §§  459, 460) and served a prison term for that conviction.  In 2000 he began serving a prison term for a conviction for possessing a controlled substance (Health & Saf. Code, §  11377, subd. (a)), and again for a 2003 conviction for receiving stolen property (Pen. Code §  496, subd. (a).)

DISCUSSION

            Appointed appellate counsel has filed a brief setting forth the evidence in the superior court.  Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.

            We granted Hosaka permission to file a brief on his own behalf.  He has responded.  Hosaka contends the trial court prejudicially erred in failing to adequately admonish the jury after the People introduced evidence barred in the in limine hearing, erred in failing to grant a motion for a mistrial, and that a new record should be prepared in light of apparent discrepancies regarding the date the guilty verdict was entered.

Admonishment of the jury

            In a written trial brief and motion in limine, the People asked the court to admit evidence that Hosaka had the prior felony convictions referred to above, and to show the reason for the stop was that a parole violation warrant had been issued.  At the motion in limine the court ruled the prior felony convictions could be used to impeach Hosaka if he testified, and the People could introduce evidence that there was an outstanding warrant for Hosaka's arrest but could not introduce evidence that it was a parole violation warrant.  During examination of Office Kalb, the officer testified that he checked on the status of Hosaka's driver's license and learned it had been suspended for driving under the influence.  The court sustained objection to the evidence.  At sidebar, the court denied a motion for a mistrial but noted that the evidence was a clear violation of its ruling at the in limine hearing.  Having reviewed the record, we find nothing in the in limine rulings that was violated through testimony that the officer learned Hosaka's driver's license had been suspended for driving under the influence.  However, only relevant evidence is admissible.  (Evid. Code, §  351.)  Evidence is relevant if it has a tendency in reason to prove or disprove any disputed fact.  (Id., §  210.)  Evidence that Hosaka's driver's license was suspended for driving under the influence had no tendency to prove or disprove any disputed fact here.  Evidence of the prior misdemeanor conviction for driving under the influence was thus inadmissible.  The trial court properly sustained the objection to the evidence and admonished the jury to disregard it.

Motion for a mistrial

            A motion for a mistrial is addressed to the sound discretion of the trial court.  (People v. Eckstrom (1986) 187 Cal.App.3d 323, 330.)  A trial court does not abuse its discretion when it denies a motion for a mistrial after it is properly satisfied no prejudice or injustice has resulted or will result from the occurrences to which counsel objects.  (People v. Dominquez (1981) 121 Cal.App.3d 481.)  A mistrial should be granted only following incurable prejudice or error.  If the trial court, in its discretion, finds an error is curable and takes affirmative steps to cure it, we must uphold the trial court's decision unless it results in a miscarriage of justice.  (People v. Woodberry (1970) 10 Cal.App.3d 695, 708; People v. Haskett (1982) 30 Cal.3d 841, 854.)

            Here, the trial court admonished the jury to disregard the testimony Hosaka's driver's license had been suspended for driving under the influence.  The issue before the jury, as viewed by the defense, was whether Officer Kalb used excessive force when he arrested Hosaka.  The People presented their case through a witness of the event and police officers.  Hosaka presented no witnesses.  Given this record, it is extremely unlikely that Hosaka suffered prejudice through mention that his driver's license had been suspended for driving under the influence.

Discrepancies regarding the date the guilty verdict was entered

            The jury verdict was recorded on March 10, 2006.  The abstract of judgment reflects that the jury entered its verdict on March 13, 2006.  We remand for the trial court to correct the date of conviction reflected in the abstract of judgment.

            A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue.  Competent counsel has represented Hosaka on this appeal.

DISPOSITION

            The judgment is affirmed.  The trial court is directed to amend the abstract of judgment accordingly, and to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

McCONNELL, P. J.

WE CONCUR:

                                McDONALD, J.

                                         AARON, J.

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