Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF130899. Paul E. Zellerbach, Judge.
John F. Schuck, 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Defendant, Jaime Vizcaino was charged with one count of methamphetamine possession (Health & Saf. Code, § 11377 subd. (a)), and one count of battery (Pen. Code, § 242). The information also alleged that defendant had two prior felony convictions within the meaning of section 1203, subdivision (e)(1), and two separate prior prison terms (§ 667.5 subd. (b)). Defendant waived jury trial on the alleged prior prison terms. Following a jury trial, defendant was found guilty on all counts, and the trial court found the two prior prison term enhancements true. The trial court sentenced defendant to four years in prison. Defendant appeals, contending the trial court committed reversible error in denying his mistrial motion, and that there was insufficient evidence to find his prison priors true.
All further statutory references are to the Penal Code unless otherwise indicated.
II. STATEMENT OF FACTS
Defendant lived in a converted garage/studio next door to the main residence of his parents, Josefina and Jaime Vizcaino, Sr. On June 19, 2006, defendant walked into his parents’ kitchen while his sister, Cecelia Vizcaino, and mother were having lunch. Defendant asked if there was any soda in the refrigerator, to which Cecilia responded, “if there is no soda,” defendant should “go buy some.” After an exchange of explicit words between the two siblings, Cecilia perceived defendant to be looking at her in an angry and threatening manner. Defendant found a few sodas in the refrigerator, and after emptying two cans into a cup, he threw an empty can in Cecilia’s direction while cursing at her. Cecilia testified that the can hit her foot; Josefina testified that the can did not make contact with Cecilia’s person. While leaving the kitchen, defendant moved a chair, which Cecilia testified as being “shoved” into her arm; Josefina testified that the chair did not touch Cecilia and that defendant only bumped into the chair, moving it only “a little.” Cecilia called the police.
Nicholas Labella, an investigator with the Riverside County District Attorney’s office, testified that during an interview with Josefina, she recalled the can hitting Cecilia.
Riverside County Sheriff Deputies Eloy Delagarza and Michele Roth responded to the scene. After speaking with Cecilia, Deputies Delagarza and Roth attempted to make contact with defendant, who was then inside the converted garage/studio. Both deputies knocked on the door of the studio for approximately three to five minutes attempting to make contact with defendant. During this time, Deputy Delagarza heard some commotion coming from inside the studio. Defendant finally opened a window and stuck his hands out; he was subsequently removed from the studio and handcuffed. A search of the studio revealed a usable amount of methamphetamine in a kitchen drawer, as well as a glass methamphetamine smoking pipe inside the couch.
Deputy Roth and criminalist Anatoly Zolotaryov both opined that the amount of methamphetamine found was of usable quantity.
Josefina and Jaime, Sr., testified that although the studio had a locked door, it would remain unlocked at times. Both testified to seeing unidentified individuals entering and exiting the premises in the days prior to defendant’s arrest. Jaime, Sr., denied threatening to take away Cecilia’s use of his vehicle and forcing her to move out if she testified against defendant.
III. DISCUSSION
A. Did the Trial Court Err in Denying Defendant’s Mistrial Motion?
Defendant contends the trial court erred in denying his motion for mistrial, and thus denying his constitutional rights to due process and a fair trial.
1. Trial court proceedings
During pretrial hearings, the trial court ruled on a motion in limine brought by defendant’s counsel to disallow any evidence that would allude to defendant’s prior convictions or parole status. Without objection from the People, the trial court granted the motion and stated that “anything relating to [defendant’s] parole status, is not relevant to this trial at this point in time. And that there will be no mention made of his parole status by either — any civilian witnesses . . . or any law enforcement officers.” Both counsel took notice of the court’s ruling, and the prosecutor agreed to “admonish [the People’s] witnesses.” It was agreed that the legality of the search of the studio and defendant’s parole status were irrelevant to the proceedings.
During the direct examination of Deputy Delagarza, the following colloquy occurred:
“Q. (BY [PROSECUTOR]) You said you are familiar with that residence?
“A. Correct. That’s the second time I have been there.”
The objections of defense counsel were sustained; Deputy Delagarza’s testimony was stricken from the record, and the jury admonished to disregard it. There was a brief sidebar conference, after which the prosecutor admonished Deputy Delagarza again about the inadmissible evidence. Shortly after the deputy resumed his testimony, the following exchange occurred:
“Q. Okay, Now, when you are — so you have the defendant out and you are going to conduct a search of the bungalow. And you are conducting the search incident to arrest, and based on his consent, is that accurate?
“A. And the fact that he is on active CDC parole.
“THE COURT: Ask the next question please.”
Defense counsel did not object. After defendant’s trial counsel cross-examined Deputy Delagarza, the court adjourned for the day, and both counsel, along with defendant and the trial court judge, outside of the presence of the jury discussed the events which had just occurred. The prosecutor stated that Deputy Delagarza was admonished three times; including once mid-testimony when he was pulled off the witness stand. The court recognized “the record is clear that [the prosecutor] actually led [Deputy Delagarza] in that area by questioning him and asking him specifically did he search [defendant’s] residence, pursuant to search incident to arrest, as well as the consent or obtaining consent. Then [Deputy Delagarza] on his own initiative added, ‘Yes and also’ . . . [¶] ‘Also him being on CDC parole.’”
Defense counsel requested a mistrial and argued that a limiting instruction would not clear the jurors’ minds. He contended that a fair and impartial trial could not be had with this information in the jurors’ minds, connecting defendant’s parole status to a prior conviction or plea to a felony.
The trial court did not find any “bad faith” on the part of the People and denied defendant’s motion. The court gave the jury a specific, cautionary instruction to disregard the testimony, or alternatively to not consider defendant’s parole status during their deliberations.
The court instructed the jury at the close of the case, among other things: “Also, there was testimony by Deputy Delagarza that he searched the defendant’s bedroom or converted garage or studio — it’s been referred to as several different things during the course of the trial — and that he searched the room based upon [defendant] giving his consent to that search, as well as the fact that [defendant] was on parole. [¶] I am instructing you that [defendant’s] parole status is totally irrelevant to these proceedings and should not be considered by you in any way. It’s irrelevant. [¶] And I also want to inform you that Deputy Delagarza was also informed before trial began that he was not to make mention of the defendant’s parole status, as well, because again, it was irrelevant. Unfortunately, it did come out. But again I am instructing you that you are not to consider it in any way. It is totally irrelevant and has no effect or meaning whatsoever with respect to any decisions that you have to make in this case.”
Defendant now contends that the testimony regarding his parole status prejudiced the jury in a way not curable by cautionary instruction and thus requires reversal. We reject defendant’s contention for the reasons discussed below.
2. Standard of review
A trial court’s ruling denying a motion for mistrial is viewed under the deferential abuse-of-discretion standard. (People v. McLain (1988) 46 Cal.3d 97, 113; People v. Ayala (2000) 23 Cal.4th 225, 282 (Ayala).) “[A] motion for mistrial should be granted only when ‘“a party’s chances of receiving a fair trial have been irreparably damaged.”’” (Ayala, supra, at p. 282.) Reversal is warranted when it is reasonably probable that a result more favorable to the defendant would have been reached absent the incident. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
3. The trial court did not err in denying defendant’s motion for mistrial
Evidence of prior convictions may be admissible against a testifying witness, including a defendant, when attacking the witness’s credibility. (See People v. Allen (1978)77 Cal.App.3d 924, 931, fn. 8 (Allen); People v. Beagle (1972) 6 Cal.3d 441, 451-454; Evid. Code, §§ 352, 787, 788.) However, when it is not offered in attacking a defendant’s credibility as a witness, reference to a defendant’s parole status may constitute prejudicial error and grounds for a mistrial. (See Allen, supra, at p. 935 [denial of mistrial was error where witness referenced a defendant’s parole status]; People v. Stinson (1963) 214 Cal.App.2d 476, 480 (Stinson) [testifying law enforcement officer’s reference to a defendant’s parole officer was erroneous but error was harmless]; People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [witness’s reference to a defendant as “ex-convict” required reversal where the record revealed a close call on the issue of guilt]; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506 [reversible error found when a defendant was referred to as “doing time” in San Quentin]; People v. Valdez (2004) 32 Cal.4th 73, 128 [officer’s testimony referring to “Chino Institute” was a “fleeting reference” that was harmless error and reversal not required]; People v. Bolden (2002) 29 Cal.4th 515, 555 [officer’s testimony referring to a parole office in connection with obtaining defendant’s address was a “fleeting reference” that was harmless error].) “‘[A] witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.’” (People v. Harris (1994) 22 Cal.App.4th 1575, 1581 (Harris).)
Here, we must decide whether the “trial court cured the impropriety of the statement by ordering the volunteered answer stricken and immediately admonishing the jury to ‘disregard it completely, as if it were never said[,]’” (Allen, supra, 77 Cal.App.3d at p. 934), or alternatively, whether, after an examination of the entire cause, is it reasonably probable that the jury would have reached a result which would have been more favorable to the defendant had the defendant’s parole status not been heard. (Watson, supra, 46 Cal.2d at p. 836; Allen, supra, at p. 935, Harris, supra, 22 Cal.App.4th at p. 1581; Cal. Const. art. VI, § 13.) These questions are approached “in the light of a trial record which points emphatically to defendant’s guilt.” (Stinson, supra, 214 Cal.App.2d at p. 482.)
a. Deputy Delagarza’s comment regarding his second visit to defendant’s residence
During the first exchange between the prosecutor and Deputy Delagarza, during which the deputy stated it had been his second visit to defendant’s home, the court properly sustained the objections of defendant’s counsel, admonished the jury, and struck the inadmissible testimony. “‘A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that “the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.” [Citation.]’ [Citation.]” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404; People v. Holt (1997) 15 Cal.4th 619, 662.) The record does not show bad faith in the prosecutor’s line of questioning as evidenced by the People’s agreement to not refer to defendant’s parole status and to admonish their witnesses to that effect.
b. Deputy Delagarza’s comment that defendant was on “active CDC parole”
During the second exchange, although defense counsel did not object to Deputy Delagarza’s answer, the trial court immediately stepped in and instructed the prosecutor to ask the next question. A review of the record does not demonstrate any bad faith on the People’s presentation of the case, as even the trial court noted the prosecutor looked “surprised” at Deputy Delagarza’s voluntarily adding to his answer defendant’s parole status. Ruling on the defense motion for mistrial, the court denied the motion for the same reasons we find today; there was no showing of bad faith and the error could properly be cured by a cautionary instruction, which was given to the jury, as noted above.
In order to conclude that the trial court’s denial of the motion for mistrial amounted to reversible error, we must find this to be an exceptional case. “The finding of exceptional circumstances depends upon the facts in each case. ‘An improper reference to a prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial “in the light of a record which points convincingly to guilt . . . .”’ [Citation.]” (Allen, supra,77 Cal.App.3d at p. 935.)
In Stinson, the reviewing court found that the defendant was forced to testify in response to an earlier reference to his parole officer by the prosecution’s witness, thus giving up his constitutional right. (Stinson, supra,214 Cal.App.2d at pp. 480-482.) The prosecutor in Stinson refrained “meticulously” from any such reference to the defendant’s parole status, however, the witness, an experienced law enforcement officer, deliberately injected inadmissible and prejudicial evidence. (Id. at p. 481.) Despite this error, the court affirmed the denial of the defendant’s mistrial motion on the basis of the record convincingly showing guilt. (Id. at p. 483.) Stinson reiterated that reversal is required only when, after review of the entire record, the appellate court sees a “closely balanced state of the evidence.” (Id. at p. 482.)
Similarly, in Harris, the court deemed witness testimony referencing the defendant’s parole officer to be harmless error. (Harris, supra, 22 Cal.App.4th at p. 1581) Harris concluded along the same lines as Stinson, holding that where the record points convincingly to guilt, error in admitting otherwise inadmissible evidence will be deemed nonprejudicial when the issue of guilt is not a “close case.” (Harris, supra, at p. 1581.)
In the instant case, likewise, the evidence of defendant’s guilt of battery was overwhelming. Defendant’s sister testified that defendant threw a can at her direction, hitting her, and shoved a chair into her arm; a version corroborated by the District Attorney investigator’s recollection of the alleged facts when interviewing the victim and Josefina. In regard to the methamphetamine possession allegation, the evidence was likewise just as strong. Both Officers Delagarza and Roth testified as to defendant’s unwillingness to initially let the officers inside his studio upon their arrival. During their attempts to make contact with defendant, Deputy Delagarza heard some “commotion.” Defendant finally allowed the officers inside. A search of the premises revealed constructive possession of the illegal substance and the glass smoking pipe. This evidence was strong enough to warrant a guilty finding on both counts against defendant. (See Russell v. Superior Court of San Diego County (1970) 12 Cal.App.3d 1114, 1117-1118 [unlawful possession may be established by circumstantial evidence and any reasonable inference drawn from such evidence].)
See People v. Williams (1971) 5 Cal.3d 211, 216 (constructive possession alone will not supply element of knowledge of the character of the drug required for conviction); People v. White (1958) 50 Cal.2d 428, 431 (constructive possession of illegal substance, along with other circumstantial evidence, may be sufficient to sustain a conviction).
Thus, the single brief reference to defendant’s parole status was not significant in the context of the entire trial, and defendant’s chances of receiving a fair trial were not irreparably damaged. The fact that the jury required approximately two hours to render its verdict confirms this was not a close case on the issue of guilt. (See Harris, supra,22 Cal.App.4th at p. 1581 [jury deliberations of less than one hour confirm guilt was not a “close call” issue]; accord People v. Cardenas (1982) 31 Cal.3d 897, 907 [jury deliberations of six hours an indication that issue of guilt is not “open and shut” and can suggest that errors in admission of evidence are prejudicial].)
4. Conclusion
After reviewing the totality of circumstances, we are convinced that Deputy Delagarza’s injection of defendant’s parole status was harmless. Accordingly, we conclude it was not reasonably probable that defendant would have obtained a more favorable result had the incidental remark about his parole status not been made. (See People v. Williams (1981) 115 Cal.App.3d 446, 453; Stinson, supra, 214 Cal.App.2d at pp. 482-483.) Alternately, any perceived error was not so egregious as to infect the trial with such unfairness as to constitute a denial of due process. (See Chapman v. California (1967) 386 U.S. 18, 24.) Thus, the court did not abuse its discretion in denying defendant’s motion for mistrial.
B. Sufficiency of Evidence to Support a True Finding on the Prior Prison Term Enhancements
Defendant next contends the evidence is insufficient to support the true finding on one of the prior prison enhancements. Specifically, he argues that the two priors were served concurrently and hence are outside the scope of section 667.5. Subdivision (b) of section 667.5 states: “Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.” Section 667.5, subdivision (g), specifically states, “A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.” (Italics added.)
“Therefore, section 667.5 requires proof that the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of that conviction, (3) completed that term of imprisonment, and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]” (People v. Elmore (1990) 225 Cal.App.3d 953, 956-957.) Defendant’s contention that he served only one prison term for all of his convictions is misplaced.
Defendant was convicted on September 3, 2003, in Riverside County of violating Vehicle Code section 10851, subdivision (a). For this conviction, defendant was sentenced on January 6, 2004, to 14 months in state prison, to run concurrently with a May 2003 conviction for violating Health and Safety Code section 11377, subdivision (a), and a June 2003 conviction for violating Vehicle Code section 10851, subdivision (a). Records of the California Department of Corrections showed that defendant was received into North Kern State Prison on January 9, 2004, and paroled to the custody of San Bernardino County Sheriff’s office on September 7, 2004. On September 9, 2004, defendant was in custody in San Bernardino County to face parole violation charges and other new offenses. In December 2004 defendant was convicted of violating section 487, subdivision (a) in San Bernardino County, and was sentenced for both that conviction and a March 2003 conviction of violating section 496, subdivision (a). The sentences in these two cases were also to run concurrently. In January 2005 his parole was revoked.
This is a separate conviction from that of the September 2003 violation of Vehicle Code section 10851, subdivision (a). The September conviction has a case number of RIF111101, while the June 2003 conviction for the same offense has a case number of RIF110478.
Defendant relies on People v. Jones (1998) 63 Cal.App.4th 744, for the proposition that only one enhancement “is proper where concurrent sentences have been imposed in two or more prior felony cases. [Citation.]” (Id. at p. 747.) The defendant in Jones appealed the true findings on one of his four prison prior enhancements, contending that he was on probation for one of the convictions, and when the new crime was committed, his probation was revoked and he was sentenced concurrently for the new offense. (Id. at pp. 747-748) However, Jones is distinguishable on the grounds that the defendant in Jones was on probation when he was convicted of the new offense, whereas, defendant in the instant case had been paroled after approximately eight months in state prison for the Riverside County convictions. (Jones, supra, at pp. 747-748.)
Our Supreme Court addressed this issue in In re Kelly (1983) 33 Cal.3d 267 (Kelly), overruled on other grounds in People v. Langston (2004) 33 Cal.4th 1237, 1246. In Kelly, the defendant had been sent to prison five times for four offenses. On the fifth conviction, the trial court imposed four one-year enhancements pursuant to section 667.5, subdivision (b). The defendant argued in the Supreme Court that the enhancements were improper because he had not completed any prior separate prison term within the meaning of section 667.5, subdivision (b). (Kelly, supra, at pp. 269-270.)
In Kelly, the Supreme Court interpreted section 667.5, subdivision (g) as follows: “[A] prior separate prison term is defined as that time period a defendant has spent actually incarcerated for his offense prior to release on parole. In addition, if the defendant has violated his parole and has been sent back to prison, but has not received a new commitment, that time block is deemed to be continuing. If defendant has been returned with the addition of a new commitment, however, the time block is not continued, and only that portion of prison time spent prior to release on parole constitutes the prior separate prison term.” (Kelly, supra, 33 Cal.3d at pp. 270-271.) The court therefore concluded, “a prisoner who is incarcerated on both a parole revocation and a new commitment is subject to an enhancement for the offense for which he was on parole.” (Id. at p. 270.)
Defendant in the present case served concurrent sentences for the three felony convictions in Riverside County and was subsequently paroled. His parole was revoked for admitted violations, and defendant was sentenced for two new offenses in San Bernardino County to run concurrently with each other. The abstracts of judgment for the San Bernardino County convictions indicate only that the sentences are to run concurrently with each other, not in reference to the previous sentence handed down in Riverside County. Defendant was convicted not only of parole violations but also the new offenses in San Bernardino County. In the events leading up to the instant case, defendant was on active parole, violated the terms of his parole, and was subsequently charged with new offenses. In light of Kelly’s holding, to accept defendant’s assertion that his continual parole violations, commission of new offenses, and commitments amount to one continuous prison term would frustrate the legislative intent, as this type of behavior is exactly that which section 667.5 addresses and tries to deter. Therefore, we conclude the trial court did not err in finding true defendant’s two prior prison terms.
IV. DISPOSITION
Judgment is affirmed.
We concur: RICHLI, J., MILLER, J.