Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court No. BLF005133 of Riverside County. William S. Lebov, Judge. (Retired judge of the Yolo Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerald J. Miller, 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, and Rhonda Cartwright-Ladendorf and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
A jury found defendant and appellant Benerito Felipe Gabaldon guilty of robbery. (Pen. Code, § 211.) In a bifurcated proceeding, the trial court found true that defendant had suffered seven prior serious and violent felony convictions (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)), a prior serious felony conviction (§ 667, subd. (a)), and a prior prison term (§ 667.5, subd. (b)). As a result, defendant was sentenced to a total term of 31 years to life in state prison. Defendant’s sole contention on appeal is that the trial court prejudicially erred in denying his motion for mistrial based on prosecutorial misconduct. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
On September 25, 2007, about 11:00 a.m., Sheila Entwistle was walking with her nine-year-old daughter outside an Albertson’s grocery store in Blythe. As they were walking, with Entwistle alongside the curb and carrying her purse by its straps, Entwistle heard a car approach her from behind. Entwistle turned around and saw a gray or silver Chrysler four-door sedan, about 5 to 10 feet from her, traveling at approximately five miles per hour. According to a nearby Rite-Aid store employee, the car and its two male occupants had been cruising around the parking lot since about 10:00 a.m.
As the car came closer to her, Entwistle saw a male, identified as defendant, lean out the open passenger window of the car. Defendant reached out with one of his arms and snatched the straps of Entwistle’s purse and began pulling. As the car increased its speed, Entwistle and defendant struggled for the purse. During the struggle, the strap of the purse broke, allowing defendant to leave the scene with the purse.
About 40 minutes later, Arizona Department of Public Safety Officer John Gigous was on routine patrol on Interstate 10 when he determined the vehicle in which defendant was the passenger was stolen. Officer Gigous conducted a traffic stop on the vehicle and searched it. During the search, Entwistle’s purse was found under the passenger seat where defendant had been seated. The purse contained Entwistle’s driver’s license, “two Mexico ID cards and a Nevada driver’s license.” The name on the other identification cards was Maria Sobeyda Agramon. Both the driver and defendant stated they did not know to whom the purse belonged. Officer Gigous contacted the Blythe Police Department and discovered there had been a report of a stolen purse.
Subsequently, Entwistle and her daughter were driven to the location of the car for an infield identification of defendant and the car. Both Entwistle and her daughter separately identified defendant as the robber and the car as the one used during the robbery. Entwistle also identified her purse, as well as the contents of the purse. She noted that her purse was missing about $20 to $30 and a pair of embroidery scissors, and that it contained an identification card of an individual she did not know.
II
DISCUSSION
Defendant contends the trial court prejudicially erred in denying his motion for mistrial because the prosecutor improperly introduced evidence that the car defendant was traveling in was stolen, as well as evidence that defendant was found in possession of identification cards belonging to Agramon. In essence, defendant contends the trial court erred in denying the motion for mistrial following what he perceived to be prosecutorial misconduct. We find no error.
A. Additional Factual and Procedural Background
Defendant was charged with the robbery of Entwistle and with receiving stolen property, to wit, three identification cards belonging to Maria Sobeyda Agramon. Prior to trial, the prosecutor informed the court she was still attempting to locate Agramon to call as a witness.
At trial, Officer Gigous testified he found identification cards belonging to Agramon in Entwistle’s purse. Defense counsel did not object. Defense counsel did object as irrelevant whether Officer Gigous recalled who the registered owner of the vehicle was. The trial court sustained that objection. Defense counsel also objected on hearsay grounds when Officer Gigous was asked what he discovered when he did a registration/license plate check on the vehicle through dispatch. The trial court overruled that objection. Officer Gigous then testified he was advised the vehicle had been reported stolen earlier that day in California.
After the People’s case-in-chief, defense counsel made a motion for acquittal of the receiving stolen property charge pursuant to section 1118.1 in light of the fact Agramon did not testify. The motion was granted. Immediately thereafter, defense counsel made a motion for mistrial, claiming “the People knew all along there was no way they could prove Count 2 [the receiving stolen property offense] because they did not have a victim. And they elicited testimony on more than one occasion about the item. [¶]... [¶]... [and] they elicited testimony that the car was stolen.” Defense counsel explained that this evidence improperly prejudiced defendant to “make him turn out to be... a bad guy-basically character evidence of specific acts of misconduct for things that they cannot prove.”
Following argument from the prosecutor and further discussions between the court and the parties, the trial court denied the motion for mistrial. The court explained: “I have to accept the District Attorney’s representation that they were making an effort to locate the witness. And so I don’t fault her for bringing out the evidence since the charge was pending about the other cards that were there that belonged to Ms. Agramon. So that would not be, in this Court’s opinion, grounds for a mistrial.” In regard to the stolen vehicle evidence, although the court was “a bit concerned about the fact that it came out that it was stolen, ” the court concluded the evidence was not sufficiently prejudicial to warrant a mistrial. The court noted: “There is no charge of taking or stealing a car. There is another issue of-and he was not the driver of the car. And if the jury thinks about it, they could think that the driver was the person responsible for the stolen car. There is no evidence to show that this defendant knew he was [in] a stolen car.”
B. Relevant Law
A trial court’s ruling denying a mistrial is reviewed for an abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283.) A motion for mistrial “should be granted only when a party’s chances of receiving a fair trial have been irreparably damaged.” (Ibid.) Defendant based his mistrial motion on prosecutorial misconduct. “‘“[T]he applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]...”’ [Citation.]” (Id. at pp. 283-284.)
C. Analysis
At the outset, we note that defense counsel did not object to the prosecutor’s elicitation of the contested evidence on the grounds now challenged on appeal. “A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.) Arguably, because defense counsel did not request an admonition to the jury, defendant has not preserved the issue for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”].)
Defendant asserts that an objection and admonition would have been futile. But the same claim could be made whenever an attorney fails to object. Defendant’s “ritual incantation” that the futility exception applies is insufficient to preserve his claims for appellate review. (People v. Panah (2005) 35 Cal.4th 395, 462.)
Even if the issue has been preserved for review on appeal, the trial court did not abuse its discretion in denying the motion for mistrial based on prosecutorial misconduct. We conclude the conduct complained of did not amount to prosecutorial misconduct. “‘Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.’” (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)
Here, in regard to the stolen vehicle evidence, we find that the prosecutor merely elicited this evidence to show why the vehicle in which defendant was a passenger was stopped by Officer Gigous. Moreover, as the trial court noted, defendant was not charged with receiving or driving a stolen vehicle. In addition, defendant was not the driver of the car. The prosecutor’s conduct in this regard cannot be characterized as misconduct.
We also reject defendant’s claim the prosecutor committed misconduct by eliciting evidence of the identification cards belonging to Agramon. The prosecutor’s conduct demonstrated that the People were legitimately pursuing a guilty verdict for receiving stolen property. The information charged defendant with “wilfully and unlawfully” receiving “three identification cards belonging to Maria Sobeyda Agramon....” Prior to trial, the prosecutor informed the court she was attempting to locate Agramon to testify. The prosecutor also requested she be allowed to offer the testimony of the officer who took the stolen property report in the event Agramon could not be located. However, that request was denied. Moreover, the prosecutor did not elicit testimony concerning whether the identification cards were in fact stolen, let alone by defendant; merely that they were found in Entwistle’s purse. Even though the receiving stolen property charge was later dismissed, we cannot find that the prosecutor’s conduct under these circumstances “amount[s] to knowing misconduct, ” as defendant argues.
The elicitation of the challenged evidence by the prosecutor did not comprise “‘“‘“a pattern of conduct ‘so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.’”’”’” (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.) Therefore, the elicitation of the stolen property evidence did not constitute prosecutorial misconduct in violation of the federal Constitution.
The next question, therefore, is whether the prosecutor’s conduct amounted to a misconduct under state law-whether it involved “‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’” (People v. Ayala, supra, 23 Cal.4th at p. 284.) We cannot conclude the prosecutor’s elicitation of the challenged evidence constituted misconduct under state law because it does not involve the use of deceptive methods by the prosecutor. Here, it appears that the prosecutor was simply trying to show why the car in which defendant was a passenger was stopped. In addition, the prosecutor was attempting to make a good faith effort in locating the victim of the receiving stolen property count. Contrary to defendant’s contentions, we cannot find the prosecutor’s behavior constituted prosecutorial misconduct.
Defendant cites the cases of People v. Solis (1961) 193 Cal.App.2d 68, People v. Gill (1956) 143 Cal.App.2d 46, People v. Williams (1951) 104 Cal.App.2d 323, People v. Figuieredo (1955) 130 Cal.App.2d 498, and People v. Baker (1956) 147 Cal.App.2d 319 in support of his position of misconduct. These cases, however, are distinguishable. In Gill and Solis, the prosecutor called the defendant’s wife to testify with full knowledge that she could not be compelled to do so without the defendant’s consent. (People v. Gill, supra, at p. 51; People v. Solis, supra, at p. 78.) As the court in People v. Ney (1965) 238 Cal.App.2d 785 observed, those cases hold, in essence, that the mere calling of the spouse is not improper, but such act, joined with other conduct or considered with other events in the record, may constitute prejudicial misconduct. (Id. at pp. 800-801.)
Defendant’s reliance on People v. Williams, supra, 104 Cal.App.2d 323 is also misplaced. In that case, where the evidence was sharply conflicting, the robbery conviction was reversed on appeal because the prosecutor attempted to elicit from the defendant’s relatives, called as prosecution witnesses, their asserted previous statements, admittedly hearsay, and implied in his argument that the defendant did not call these witnesses because of the damaging effect of the statements. (Id. at pp. 330-331.)
People v. Figuieredo, supra, 130 Cal.App.2d 498 involved a case in which the prosecutor intentionally committed misconduct in eliciting information regarding the defendant’s prior prison time, even though the prosecutor had represented the defendant’s prior convictions would not be mentioned during the guilt phase. (Id. at pp. 505-506.) Finally, People v. Baker, supra, 147 Cal.App.2d 319 involved a case in which the evidence improperly elicited by the prosecutor was such as he should have anticipated and warned the witness against. (Id. at pp. 323-325.)
The prosecutor’s conduct in the present case does not even slightly resemble the conduct of the prosecutors in the above cases. There is no evidence to suggest that the prosecutor here engaged in deceptive conduct in an attempt to mislead the jury or in an attempt to persuade the jury or to deny defendant a fair trial.
Assuming, arguendo, that the prosecutor did commit misconduct and that the trial court abused its discretion in denying the motion for mistrial, prosecutorial misconduct does not require reversal unless it subjects the defendant to prejudice. (People v. Warren (1988) 45 Cal.3d 471, 480.) We conclude the conduct complained of did not cause prejudice under any standard. There was overwhelming evidence that defendant committed the robbery. Both the victim and her daughter separately identified defendant as the robber. They also identified the car in which defendant had been a passenger when the purse was snatched. Moreover, the victim’s purse and belongings were found in defendant’s possession. Further, the jury was told only that the purse contained identification cards belonging to a woman named Agramon and the car had been stopped because the officer was informed through dispatch that it was stolen. Defendant was repeatedly identified as the passenger of the vehicle and not the driver. There was no evidence that the identification cards had been stolen or that the car had been stolen by defendant. There was no mention of the receiving stolen property count in closing arguments or of the evidence offered in support thereof. Likewise, there was no mention that the vehicle in which defendant was stopped had been reported stolen during the prosecutor’s closing remarks.
In sum, there was no prosecutorial misconduct, and even if there were, because there was no prejudice, the trial court did not abuse its discretion in denying defendant’s motion for new trial.
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.
The trial court granted defendant’s motion for acquittal on the charge of receiving stolen property. (§ 496, subd. (a).)