Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FVI025745. Jules E. Fleuret, Judge.
Laurel M. Nelson, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Felicity Senoski, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
I. INTRODUCTION
Defendant Carlos Anthony Aguilar appeals from his conviction of possession for sale of a controlled substance (Health & Saf. Code, § 11378), and from the trial court’s true finding on his three prior convictions (Pen. Code, § 667.5, subd. (b)). Defendant contends (1) the trial court abused its discretion in admitting testimony regarding his parole status and a taped telephone conversation between defendant and an unidentified male; (2) the trial court erred in failing to perform a factual inquiry prior to denying his motion for mistrial; and (3) there was insufficient evidence to support the trial court’s finding that his 1997 guilty plea to a charged violation of section 245, subdivision (a)(1), constituted a violent or serious felony (§ 667.5, subd. (c); § 1192.7, subd. (c)) for purposes of the “Three Strikes” law.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
A. The Prosecution Case
On November 3, 2006, shortly before midnight, Deputy Gregory Jones of the San Bernardino County Sherriff’s Department was on patrol in Oro Grande. Deputy Jones observed a white truck he believed to be unoccupied in the parking lot of the Oro Grande Park. Given the hour and inclement weather conditions, Deputy Jones found the presence of the vehicle unusual, and he notified dispatch of his location and intention to commence a vehicle check. Deputy Jones activated his emergency lights and used his spotlight to illuminate the vehicle’s interior.
When Deputy Jones approached the vehicle, defendant was in the passenger’s seat, and his girlfriend, Maegan Scorza (Scorza), was seated on the driver’s side. Deputy Jones identified himself, requested identification from Scorza and defendant, and asked whether either was on probation or parole. Scorza was “extremely cooperative” and indicated she was not on parole. Defendant admitted he was on parole, but when asked for his identification, he became “[h]ostile, defensive, argumentative.” Deputy Jones asked defendant to step out of the vehicle, and defendant stated, “This is bullshit. You guys are always fucking with me.”
Defendant consented to a patdown search. In his left pocket, Deputy Jones found a small scale he believed was used to weigh out narcotics. When questioned about the scale, defendant responded, “Man, you know what that is. Why are you playing games? You know I’m going back.” Deputy Jones also found a spoon and plastic baggies in defendant’s left pocket which the deputy believed were used in the packaging of methamphetamine or other narcotics. When Deputy Jones asked what they were used for, defendant responded, “You know what they’re used for . . . . You’re playing games.” Defendant also had $75 on him.
Deputy Jones asked defendant if there were any drugs in the vehicle, and defendant indicated that whatever was found in the vehicle belonged to him. Deputy Jones found a glass methamphetamine pipe wedged between the seat cushions where defendant had been sitting. The deputy also found a white circular container on the floor behind the passenger seat within arm’s reach.
The container held three baggies with a “white crystal-like substance.” A medium-sized baggie contained 5.58 grams of methamphetamine. A smaller baggie contained a gross weight of 0.17 grams of methamphetamine. Deputy Jones testified that a usable quantity of methamphetamine, or “one hit,” or “a bowl,” consists of 0.05 to 0.08 grams.
The substance in the medium-sized baggie and one of the smaller baggies tested positive for the presence of methamphetamine. The third baggie was not analyzed but contained a gross weight of 0.44 grams of what appeared to be the same substance.
During Scorza’s testimony, the prosecution played the tape of a phone call the defendant made from prison to an unidentified male acquaintance. Scorza positively identified defendant’s voice. In the tape, defendant admitted to the unidentified male, “They caught me with a quarter ounce and a scale dude.” He then described the events of the night of his arrest: “I’m going to pick up this dope and I’m just gonna [sic] go straight to the, to the bar . . . . [¶] . . . [¶] . . . and weigh . . . some shit out as soon as . . . I run into these people. [¶] . . . [¶] . . . I weigh couple . . . half sixteenth’s out dude, and I go back to the bar, . . . [¶] . . . [¶] [S]o then I’m just sitting there kicking it with her, inside her truck . . . . [[¶] . . . [¶] And getting ready to smoke a bull dawg and then [the police] roll up. [¶] . . . [¶] . . . So when the cops fucking got me outta of [sic] the car and shit, they’re like hey what’s this, in your pocket? I’m like, man you know what the fuck that is dude! [¶] . . . [¶] He’s like well, is there anything in the truck, is there any drugs in the truck? And I’m like, check this out man, whatever you find in there is mine. [¶] . . . [¶] . . . [H]e comes back with the dope, and he’s like well what’s this stuff? I go man, don’t be playing games whatever you do, just put the fucking cuffs on me and send me back to state.”
Scorza testified that “smoke a bowl” indicated defendant was preparing to smoke drugs.
Defendant explained that he wouldn’t normally carry the scale with him, but he “didn’t feel like sitting down and weighing nothing [sic] out.” Instead, he went to a bar to “catch[] a buzz.” Defendant planned to go to “this dude’s pad” and “weigh out” the drugs. Defendant also described why he confessed so quickly. He said he was tired of “running” and that he had admitted to the police whatever they found was his.
Defendant discussed attending a parole hearing and bragged about a potential deal wherein he would only serve an additional seven months that would run concurrent with his last deal. The tape also contained excessive profanity, crude references to defendant’s girlfriend’s bisexuality, and banter between the two men on various other topics.
B. The Defense Case
The defense did not call any witnesses or present any evidence. The defense theory, which was advanced in closing arguments, was that the drugs in the vehicle actually belonged to Scorza and that defendant had only claimed responsibility at the scene in order to protect her.
C. Procedural Background
The San Bernardino County District Attorney charged defendant with possession of methamphetamine for sale in violation of Health and Safety Code section 11378. The district attorney alleged that defendant had suffered two prior felony assault convictions (§ 245, subd. (a)(1)) in 1997 and 1999, and one conviction for felony driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (b)) in 2004. The district attorney further alleged that defendant’s 1997 conviction was a serious or violent felony (§§ 667, subd. (b), 1170.12, subd. (a)) for purposes of the Three Strikes law.
After a jury trial, defendant was convicted of the possession for sale charge. At a bifurcated bench trial, the trial court found the prior conviction allegations true, including the allegation that defendant’s 1997 conviction qualified as a “strike” prior. Defendant waived a probation report, and the trial court sentenced him to a total term of six years, as follows: the middle term on the principal count, doubled to four years under the Three Strikes law; a consecutive one-year term for the 1997 prison prior; and an additional consecutive one-year term for the 2004 prison prior. The enhancement for the 1999 prison prior was stayed.
Defendant filed a timely notice of appeal.
III. THE TRIAL COURT PROPERLY EXERCISED DISCRETION IN ADMITTING EVIDENCE UNDER EVIDENCE CODE SECTION 352
A. Background
In limine, defense counsel moved to exclude all statements from the night of arrest referencing defendant’s parole status or the fact he was “going back” to prison on the grounds they would be unduly prejudicial. The trial court ruled that the question by Deputy Jones regarding defendant’s parole status and defendant’s response would not be allowed, but defendant’s voluntary statements about police harassment and the fact he was “going back” to jail would be.
Defense counsel then moved to exclude a telephone call (the tape) between defendant and an unidentified male that was recorded while the defendant was in prison. Defense counsel objected to the tape on the following grounds: (1) defendant’s parole status was mentioned; (2) it would confuse the issues; and (3) any probative value the tape might have would be outweighed by its prejudicial effect.
In denying defendant’s motion, the court stated, “[A]lthough there is possibly some prejudicial effect to the jury in knowing about the parole, I think that it is very relevant on the issue of the credibility of the statements at the scene. And the transcript is full of statements regarding the use, sale, and knowledge of drugs and this is a possession for sale case. So I think it’s very relevant on that ground. [¶] As far as the references to parole and going back to jail, those comments specifically bear on the credibility of what he said at the scene, and any prejudicial effect I think can be alleviated by an instruction to the jury . . . .”
Defendant contends the trial court abused its discretion in denying his motions to exclude evidence.
B. Standard of Review
Evidence Code section 352 provides, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
“When [an Evidence Code] section 352 objection is raised, the trial court ‘must weigh the admission of [the challenged] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect its admission would have on the defense.’ [Citation.]” (People v. Cardenas (1982) 31 Cal.3d 897, 904.) “‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’ [Citation.]” (Ibid.)
We reverse a trial court’s ruling to admit evidence under Evidence Code section 352 only (1) if the challenged evidence was not relevant under Evidence Code section 210, or (2) if the evidence was relevant, the trial court abused its discretion in finding that the probative value of the evidence was not substantially outweighed by its prejudicial effect. (People v. Heard (2003) 31 Cal.4th 946, 972.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
C. Testimony of Deputy Jones
Defendant contends that his objections to Deputy Jones’s testimony regarding defendant’s hearsay statements that he will be “‘going back to jail’” should have been sustained.
At trial, Deputy Gregory Jones was the prosecution’s primary witness. His testimony made up 70 pages of the reporter’s transcript. Deputy Jones’s lone reference to defendant’s prior conviction consisted of only three lines in the reporter’s transcript and reflected defendant’s verbatim response to a question regarding his possession of drug paraphernalia:
“[District Attorney] Q And what exactly did he tell you?
“[Deputy Jones] A Quote, ‘Man, you know what that is. Why are you playing games? You know I’m going back.’
“[District Attorney] Q Going back to, did he say where?
“[Deputy Jones] A Jail.”
A trial court is vested with broad discretion in weighing the prejudicial effect of proffered evidence against its probative value. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.) Here, defendant’s volunteered statement, “You know I’m going back,” was probative in showing defendant’s consciousness of guilt. It was also probative in rebutting the defense theory that defendant had falsely assumed responsibility for the methamphetamine and paraphernalia in order to protect Scorza. Given the probative value of this evidence, we cannot conclude the trial court’s decision to admit it was arbitrary, capricious, or patently absurd. (Ibid.)
D. Testimony of Maegan Scorza
Defendant next contends that he was prejudiced by the trial court’s admission of Scorza’s testimony regarding defendant’s parole status.
The prosecutor asked Scorza the open-ended question, “What happened exactly . . . ?” Scorza responded, “[Deputy Jones] asked if anyone was on parole or probation. I told him no. [Defendant] told him yeah.” Defendant claims Scorza’s testimony violated the trial court’s earlier ruling regarding questions and answers referencing defendant’s parole status, and should not have been admitted. The problem with defendant’s claim is that he failed to timely object and move to strike Scorza’s testimony. Thus, the trial court never had an occasion to rule on the admissibility of Scorza’s testimony.
Notwithstanding the above, even if we assume that the trial court erred in failing to exclude Scorza’s testimony regarding defendant’s parole status, we find such error to be harmless under People v. Watson (1956) 46 Cal.2d 818. As we noted above, defendant volunteered evidence that he had been to prison by stating that he would be going back. Second, the jury was instructed on how to treat the evidence of defendant’s parole status. And we find ample evidence to support defendant’s conviction. Thus, even if Scorza’s testimony had been excluded, we find it is not reasonably probable the result would have been more favorable to defendant.
E. The Tape of Defendant’s Telephone Conversation
Defendant contends admission of the tape was erroneous because (1) the prosecution failed to establish sufficient foundation and the tape’s relevance was not established; (2) the tape impermissibly introduced evidence of a plea bargain; and (3) the tape was highly prejudicial because it introduced further evidence of defendant’s parole status, revealed defendant’s “obvious” experience with the prison system, and the remainder of the “expletive-laden” conversation was irrelevant and inflammatory.
1. The tape’s relevance and probative value were established
Defendant first contends the tape is “wholly speculative” because no foundation was ever laid, the date and accuracy of the call were not authenticated, the purpose for the call was unknown, and the identity of the other male voice was also unknown. Defendant argues such “speculative” evidence is unreliable, untrustworthy, and therefore irrelevant. “‘The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.]’ [Citation.]” (People v. Heard, supra, 31 Cal.4th at p. 973.)
The cases relied upon by defendant are distinguishable and do not persuade us that insufficient foundation was laid. (See People v. Lucas (1995) 12 Cal.4th 415, 466-468 (Lucas) [evidence defendant’s car was moved and cleaned not relevant to prove guilty knowledge without first establishing defendant was responsible for the car’s new condition]; People v. Collins (1975) 44 Cal.App.3d 617, 628 (superseded by statute on another ground as stated in People v. Cole (1982) 31 Cal.3d 568, 577-578) [evidence of threatening phone call to witness not relevant unless the caller’s identity is established].)
While we address the merits of the claim, defendant’s newly-advanced objection on this ground has been waived. “The failure to object to evidence at trial on the same ground urged on appeal precludes raising that issue on appeal. [Citation.] [¶] One of the reasons courts give for precluding review of a newly advanced objection on appeal is that the prosecution might have been able to offer additional evidence on the question if it had been faced with a proper objection. [Citations.]” (People v. Smith (1986) 180 Cal.App.3d 72, 80.) Here, defense counsel only made generalized objections to the tape based upon references to defendant’s parole status and upon his belief the jury would be unable to understand the “drug trade” slang used by defendant without foundation being laid. If a foundational objection had been raised, it is likely the prosecution could have provided additional evidence so as to lay the proper foundation.
Certain preliminary facts are needed to establish the relevance of disputed evidence. (Lucas, supra, 12 Cal.4th at pp. 466-468; Evid. Code, § 403, subd. (a).) “The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion. [Citations.]” (Lucas, supra, at p. 466.) Here, Scorza identified defendant’s voice. Defendant’s identity was also confirmed, along with the location from which the call was made, when the tape began playing, “[T]his call will be recorded and monitored, I have a Collect from . . . [¶] [Defendant] . . . [¶] An inmate at Adelanto Detention Center.” Further, defendant’s conversation indicates the call took place after he was arrested on the charged offense. The purpose of the call and the identity of the other male voice were wholly irrelevant to the purpose for which the tape was being admitted.
The entire conversation was replete with references to the drug trade. Defendant admitted, “They caught me with a quarter ounce and a scale.” He then went on to admit weighing out a “couple of . . . half sixteenth’s” before returning to Scorza’s bar. He also admitted telling the police that whatever they found in the truck belonged to him. At no time during the conversation did he say the drugs belonged to Scorza, nor did he deny the drugs belonged to him.
Defendant contends the tape also shows that defendant was merely taking responsibility to prevent the police from impounding Scorza’s truck; thus rendering the tape ambiguous and minimizing its probative value. This interpretation, however, is inconsistent with the defendant’s earlier admissions of carrying the scale in order to “weigh some shit out.”
The probative value of any evidence “‘depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).’ [Citations.]” (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20.) Here, the probative value of the tape on the issues of defendant’s credibility and defendant’s use, sale, and knowledge of illegal drugs, particularly in light of the drug sales charge, was substantial. Thus, the tape was relevant to rebut the defense’s theory that the defendant took responsibility for the drugs only to protect his girlfriend, Scorza. While the tape’s revelation that defendant knew he was going back to jail was cumulative to the testimony from Deputy Jones, the tape was necessary to refute defendant’s contention that he had lied to Deputy Jones in the first place.
2. The evidence of a plea bargain
In the tape, defendant discussed in detail his intention to accept a deal wherein he would serve 16 months, to run concurrent with his 12-month sentence for violation of his parole. Defendant contends that evidence of this plea bargain was improperly admitted under section 1192.4 and Evidence Code section 1153.
Section 1192.4 provides: “If the defendant’s plea of guilty pursuant to Section 1192.1 or 1192.2 is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.” (Italics added.)
Evidence Code section 1153 provides: “Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.” (Italics added.)
“The obvious purpose of the statutes is to promote the public interest by encouraging the settlement of criminal cases without the necessity of a trial. [Citations.]” (People v. Sirhan (1972) 7 Cal.3d 710, 745-746; overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7.) “[T]he rule of inadmissibility applies, not merely to admissions of guilt, but also to ‘any incidental statements made in the course of plea negotiations . . . .’ [Citation.] That construction promotes candor, because ‘[t]he accused and defense counsel are assured that anything said will not be used against them if the negotiations are unsuccessful.’ [Citation.]” (People v. Crow (1994) 28 Cal.App.4th 440, 450.) The protections created by these statutes, however, apply only to those “admissions made in the course of bona fide plea bargaining negotiations.” (People v. Tanner (1975) 45 Cal.App.3d 345, 351-352.) They do not apply to statements made outside the context of bona fide plea negotiations. (People v. Magana (1993) 17 Cal.App.4th 1371, 1377.)
In People v. Posten (1980) 108 Cal.App.3d 633 (Posten), for example, the defendant made offers to plead guilty to lesser included offenses to officers who were transporting him across the country after his arrest. The court declined to extend statutory protection to these offers because they “were not made in the course of bona fide plea negotiations but were merely unsolicited admissions by appellant without any understanding that they would be inadmissible.” (Id. at p. 648; see also People v. Sirhan, supra, 7 Cal.3d at pp. 745-746 [defendant’s unsolicited offer to plead guilty to first degree murder during outburst in court was admissible because it was not made as part of a plea negotiation].)
Here, as in Posten, defendant did not make admissions during the course of bona fide plea negotiations with an understanding that they would be inadmissible. Rather, defendant’s admissions were volunteered to an unidentified acquaintance during a telephone call the defendant knew was being monitored and recorded. Because defendant’s statements were not made within the context of bona fide plea negotiations, evidence of this plea deal was properly admitted.
3. Defendant’s remaining claims of prejudice resulting from the tape
Defendant next contends the tape was prejudicial because much of the recorded conversation revealed his prior convictions, parole status, and previous time in prison. Defendant further argues that the remainder of the conversation which did not address his arrest was likely found inflammatory by the jury in light of the defendant’s excessive use of profanity and crass references to women. Defendant asserts these subjects were inappropriate for introduction to the jury and should have been redacted.
“Under [Evidence Code] section 352, exclusion of evidence is permissible only if its probative value is ‘substantially outweighed’ by the ‘probability’ that its admission will create a ‘substantial’ danger of ‘undue’ prejudice.” (People v. Branch (2001) 91 Cal.App.4th 274, 286.) “‘“‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against [the defendant] as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” [Citation.]’” (Ibid.)
Here, while the tape presented a danger of evoking an emotional bias against defendant, it cannot be said that it had very little effect on the issues. At various points throughout the tape, defendant acknowledged acquiring, weighing, preparing to use, and owning the methamphetamine found in the truck on the night of his arrest. These admissions were obviously probative in showing defendant’s consciousness of guilt and in disproving his claim at trial that these narcotics belonged to Scorza. Notwithstanding the tape’s overall substantial probative value, defendant contends that the trial court abused its discretion in failing to redact the tape’s individual references to content defendant has deemed objectionable.
The trial court considered the possibility of redacting information regarding defendant’s prior convictions, but defendant’s admissions were so widespread throughout the conversation that it concluded, “I don’t know how we can redact that.” Instead of redacting the objectionable content, the trial court gave defense counsel the opportunity to provide an appropriate limiting instruction in order to mitigate against any prejudicial effect. Defense counsel was unable to devise such an instruction on his own, but he readily accepted the trial court’s proposed instruction. Accordingly, we conclude the trial court did not abuse its wide discretion by failing to redact the references to defendant’s parole status, prior convictions, or prison experience.
As to defendant’s remaining contentions regarding the numerous expletives and unrelated banter, the trial court was never presented with a redaction request and did not have the opportunity to exercise its discretion. Even assuming, arguendo, the trial court had improperly failed to redact those portions of the tape, we find any such error would have been harmless under People v. Watson, supra, 46 Cal.2d at pp. 835-836. As discussed above, there was ample evidence to support defendant’s conviction, and it is not reasonably probable a more favorable result would have occurred if the remaining objectionable content had been redacted.
“Where evidence offered is in part admissible and in part inadmissible, and an objection is made to the evidence in its entirety and is not specifically directed to the inadmissible portion, the objection is insufficient . . . .” (Hammel v. Lindner (1964) 224 Cal.App.2d 426, 431.) As a result, defendant’s claim that the court erred by failing to order redaction has been waived. (People v. Champion (1995) 9 Cal.4th 879, 914, disapproved on another ground in People v. Ray (1996) 13 Cal.4th 313, 369, fn. 2 (conc. opn. of George, C. J., joined by a majority of the court).) “A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. [Citation.]” (Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
F. Cumulative Error
Because we find all of the contested evidence was properly admitted, we do not address defendant’s claim of cumulative error.
IV. DEFENDANT’S MOTION FOR MISTRIAL WAS PROPERLY DENIED
Defendant alleges the trial court erred in denying his motion for mistrial without first conducting a factual inquiry into an out-of-court incident involving defendant’s father and an unknown individual which took place in the presence of “a few” jurors.
A. The Incident
During a break prior to the prosecution’s first witness, defense counsel was walking with defendant’s father in the hallway outside the courtroom. In the presence of “a few” jurors, an unidentified man approached defendant’s father and made a comment along the lines of, “Damn. Are you here again? Can’t you stay out of trouble?”
After the jury was seated, defense counsel made a motion for mistrial as follows: “I think as we’re in day two of this trial I would imagine that somehow the members of the jury might somehow connect that to [defendant] and may have some type of prejudice against his family and/or have some type of presumption about his family. I don’t know but that’s a motion I’m going to make.”
The trial court denied the motion on the grounds “it’s not clear from what you told me that it was obvious that he was [defendant’s] father to the listening jurors. And furthermore, I’ve already instructed them that they are not to take into consideration anything that they see or hear outside of the courtroom or outside of the trial.”
B. Discussion
Defendant has couched his argument on appeal as an issue of spectator misconduct. Spectator misconduct is grounds for a mistrial only if “what the jury ‘saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial. . . .’ The trial court is entrusted with broad discretion to determine whether spectator conduct is prejudicial. [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 369.)
The trial court has no duty to conduct an inquiry where the court determines an admonition will suffice. (People v. Houston (2005) 130 Cal.App.4th 279, 319-320.) Further, “‘[P]rejudice is not presumed. Indeed, it is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice.’” (People v. Hill (1992) 3 Cal.4th 959, 1002, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “[T]he defendant must establish prejudice.” (People v. Cornwell (2005) 37 Cal.4th 50, 88.) Here, defense counsel’s only argument was that the jury “might” connect the statements to defendant and “may” have some prejudice against defendant and his family as a result. Defendant’s belief that he was prejudiced amounted to pure speculation at the trial level. Thus, he has failed to carry his burden at the lower court and on appeal.
The trial court’s proper exercise of discretion is further validated by comparison to the results of other cases addressing spectator misconduct. In People v. Cornwell, supra, 37 Cal.4th at pp. 84-85, the victim’s family was observed gesturing, whispering, and frowning in response to testimony, and the victim’s romantic partner twice made audible statements regarding the defendant; however, the trial court found them to be “minor and innocuous in their impact.” (Id. at p. 86.) In People v. Lucero (1988) 44 Cal.3d 1006, 1022, the mother of a murdered child had to be physically removed from the courtroom while screaming incriminating information about the defendant. The trial court admonished the jury to disregard the outburst. (Ibid.) Both of these cases represent far more extreme examples of misconduct than is present here, but the trial court’s denial of a mistrial was found proper in both instances. (People v. Cornwell, supra, at p. 87; People v. Lucero, supra, at p. 1024.) Even the case defendant relies upon, People v. Slocum (1975) 52 Cal.App.3d 867, 882-883, upheld the propriety of the trial court’s denial of a mistrial where the jury was informed on four occasions that the defendant had previously been tried for the murder of his daughter.
Further, the jury was adequately instructed to disregard the incident. Immediately prior to adjourning for the noon recess, the trial court admonished the jurors, “You must not allow anything that happens outside of the courtroom to affect your decision unless I tell you otherwise. [¶] . . . [¶] If you receive any information about this case from any source outside the trial, even unintentionally, do not share the information with any other juror.” “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Therefore, in this case, we presume the jurors followed the trial court’s instruction to disregard anything which occurred outside the courtroom. No further admonition was required.
For the foregoing reasons, we discern no abuse of discretion in the denial of defendant’s motion for mistrial.
V. TRIAL COURT’S FINDING THAT DEFENDANT’S 1997 CONVICTION QUALIFIED AS A SERIOUS VIOLENT FELONY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE
Defendant contends there was insufficient to support the trial court’s finding that the crime to which he pled guilty was a serious felony under the Three Strikes law.
At a bifurcated bench trial on defendant’s prior convictions, the prosecution presented evidence of defendant’s 1997 assault conviction in support of its prior strike allegation. That evidence included: (1) the felony complaint alleging defendant had committed assault with a deadly weapon, to wit, an unknown stabbing instrument, by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and further alleging the offense was a serious felony (§ 1192.7, subd. (c)(23)); (2) the probation officer’s presentencing report; (3) the minute order; (4) defendant’s guilty plea to a violation of section 245, subdivision (a)(1), “Assault Deadly Weapon or By Means of Force Likely To Produce GBI”; and (5) the abstract of judgment reflecting the conviction as “ASSLT DDLY WPN — GBI.”
The defendant’s plea form did not include a factual basis for the guilty plea.
As defendant correctly notes, not all assaults under section 245, subdivision (a)(1), are serious or violent felonies within the purview of the Three Strikes law. The enhancement statutes apply only to those felony assaults committed by use of a deadly weapon (§ 1192.7, subd. (c)(31)) or which result in the infliction of great bodily injury on any person other than an accomplice (§ 667.5, subd. (c)(8)). Assault by mere use of force likely to produce great bodily injury is not listed as a serious felony and may not be counted as a strike. (People v. Haykel (2002) 96 Cal.App.4th 146, 149.)
Defendant asserts the trial court impermissibly relied upon the probation officer’s presentence report in finding defendant used a deadly weapon in the commission of the assault, thereby making it a serious felony and a strike prior. Defendant argues that in the absence of that probation report the record of conviction only supports a finding of the least offense punishable which does not constitute a strike prior.
A. Standard of Review
“To establish a prior conviction enhancement allegation, the prosecutor must prove beyond a reasonable doubt all elements of the enhancement, i.e., the defendant was convicted, the conviction was of an offense within the definition of the particular statute invoked, and any other element required by the statute alleged . . . .” (People v. Haney (1994) 26 Cal.App.4th 472, 475.) We review the evidence to determine “‘“. . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, [we] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [conclusion . . . ], not whether the evidence proves guilt beyond a reasonable doubt.”’ [Citations.]” (People v. Jones (1995) 37 Cal.App.4th 1312, 1315.)
1. The probation officer’s report should not have been considered
In People v. Trujillo (2006) 40 Cal.4th 165 (Trujillo), the California Supreme Court held that a trial court may not consider a statement in a probation officer’s report in determining whether a defendant had suffered a prior conviction for a serious felony. (Id. at p. 175.) The Trujillo court reaffirmed its previous holding in People v. Guerrero (1988) 44 Cal.3d 343, 355, 356, that “in determining the truth of a prior conviction allegation, the trier of fact may ‘look beyond the judgment to the entire record of the conviction’ [citation] ‘but no further’ [citation].” (Trujillo, supra, at p. 177.) The Trujillo court then found, “[A] defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation officer’s report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.]” (Id. at p. 179.)
“A statement by the defendant recounted in a postconviction probation officer’s report does not necessarily reflect the nature of the crime of which the defendant was convicted.” (Trujillo, supra, 40 Cal.4th at p. 179 .) Here, as in Trujillo, “the prosecution did not attempt to prove that defendant used a knife and, instead, entered into a plea bargain in which it dismissed the allegation that defendant used a deadly or dangerous weapon and committed an assault with a deadly weapon. The prosecution could not have compelled defendant to testify, and thus could not have used defendant’s subsequent admission that he stabbed the victim to convict him. Once the court accepted his plea, defendant could admit to the probation officer having stabbed the victim without fear of prosecution, because he was clothed with the protection of the double jeopardy clause from successive prosecution for the same offense. [Citation.] Defendant’s admission recounted in the probation officer’s report, therefore, does not describe the nature of the crime of which he was convicted and cannot be used to prove that the prior conviction was for a serious felony.” (Ibid.)
The People concede, in light of Trujillo, that defendant’s postconviction statements contained in the probation officers report are insufficient to establish the nature of appellant’s assault conviction as a prior strike but maintain that the remaining supporting documents were sufficient.
2. The remaining record of conviction
When a record of a prior conviction does not disclose any of the facts of the offense actually committed, the record establishes only the “least adjudicated elements” of the offense. (People v. Rodriguez (1998) 17 Cal.4th 253, 261.) Here, the People urge us to find that the allegations in the felony complaint, the charges as listed on defendant’s plea form, and the abstract of judgment constituted sufficient factual basis to find defendant pled guilty to a serious felony offense.
The People rely on People v. Luna (2003) 113 Cal.App.4th 395, 397-399 (Luna), to support their contention the remaining documentary evidence was sufficient to support the trial court’s finding. In Luna, the court was presented with three documents: (1) an abstract of judgment stating the defendant’s conviction was for violation of “‘PC 245(a)(1)’ ‘ASSLT GBI W/DLY WPN’”; (2) a Department of Corrections fingerprint card which indicated the defendant's conviction was for “‘PC 245(a)(1) ASSLT GBI W/DL WPN’”; and (3) a Department of Corrections booking photograph of the defendant. (Id. at p. 397.) There the language used in both the abstract of judgment and the fingerprint card unambiguously indicated the assault was with a deadly weapon.
In the instant case, the plea form indicates defendant pled guilty to “Assault Deadly Weapon or By Means of Force Likely to Produce GBI.” (Italics added.) The abstract of judgment does not help to clarify the plea and merely reflects the conviction was for “ASSLT DDLY WPN — GBI.” Unlike in Luna, the language used on the plea form and in the abstract of judgment merely restates and abbreviates the statutory language and is ambiguous, at best, as to whether or not defendant either used a deadly weapon or inflicted great bodily injury.
The People contend that the allegations contained in the complaint, i.e., that the assault was committed with an unknown stabbing instrument, present further evidence that defendant pled to assault with a deadly weapon. That contention is undermined, however, by the plea agreement’s failure to comply with section 969f, subdivision (a). That section provides, “Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading. . . . If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant.” (Italics added.) “The section was enacted in order to ‘prequalify a crime as a serious felony’ for purposes of the three strikes law. [Citation.] The section allows ‘“the fact that a crime is a serious felony to be proven at the time the first crime is tried so that it may become a matter of record.’” [Citations.] Where the prosecution includes a serious felony allegation and the defendant pleads guilty or no contest, section 969f, subdivision (a), requires the defendant to admit or deny the allegation. [Citation.]” (Bold added.) (People v. Bueno (2006) 143 Cal.App.4th 1503, 1509, quoting in part, People v. Leslie (1996) 47 Cal.App.4th 198, 204 (Leslie).)
In Leslie, the court found that where a defendant has neither admitted nor denied that the offense constituted a serious felony, and where the trial court has made no finding to that end, the serious felony allegations in the complaint were “in essence dismissed.” (Leslie, supra, 47 Cal.App.4th at pp. 203-204.) Leslie does not preclude a finding in a later case that the conviction was a serious felony. It merely requires that if section 969f is not complied with, either by choice or by accident, the district attorney in a subsequent case, “instead of having a ‘slam-dunk’ admission by the defendant that the prior case was a serious felony, will be saddled with the burden of proving the same.” (Leslie, supra, at p. 205.) There is no evidence in this record that suggests defendant admitted the serious felony allegation contained in the complaint, and we must treat the allegation as dismissed. (People v. Bueno, supra, 143 Cal.App.4th at p. 1510.)
We recognize that “‘“[a]s a practical matter, . . . prior convictions are normally proven by the use of documentary evidence alone.”’” (Luna, supra, 113 Cal.App.4th at p. 399, quoting People v. Prieto (2003) 30 Cal.4th 226, 258.) Where, as here, however, the documentary evidence is ambiguous on its face and fails to comply with section 969f, the prosecution must present such further evidence as is necessary for a reasonable trier of fact to find the conviction was a serious or violent felony beyond a reasonable doubt.
The prosecution failed to do that here.
VI. DISPOSITION
The finding that defendant’s 1997 prior conviction constitutes a strike is reversed, and the sentence is vacated. The matter is remanded to the trial court for resentencing or (at the prosecutor’s election) retrial of the strike allegation. In all other respects, the judgment is affirmed.
We concur: RAMIREZ P.J. KING J.