People v. Figueroa CA2/3 ( 2022 )

Filed 12/13/22 P. v. Figueroa CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B322584
Plaintiff and Respondent, Kern County
Super. Ct. No. BF178319A
v.
GREGORIO FIGUEROA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Gregory A. Pulskamp, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Julie A. Hokans, Timothy L. O’Hair, and
Galen N. Farris, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Gregorio Figueroa of assault with a deadly
weapon and found true the allegation that Figueroa had
personally inflicted great bodily injury upon the victim. On
appeal, Figueroa contends that his conviction should be reversed
because (1) the jury was instructed with three consciousness of
guilt instructions that were unsupported by any evidence; and (2)
the trial court abused its discretion in denying defense counsel’s
motion for a mistrial after a witness alluded to Figueroa’s
purported association with a gang. We conclude that substantial
evidence supported the consciousness of guilt instructions and
that the court did not abuse its discretion in denying the motion
for mistrial. Further, even if Figueroa’s claims of error had merit,
any error was harmless. We therefore affirm the judgment.
PROCEDURAL BACKGROUND
By information dated December 18, 2019, the Kern County
District Attorney charged Figueroa with assault with a deadly
weapon on Jesse Leal (Pen. Code,1 § 245, subd. (a)(1); count 1)
and with assault by means of force likely to produce great bodily
injury on Brandy Rivera (§ 245, subd. (a)(4); count 2). For both
counts, the information alleged that Figueroa personally inflicted
great bodily injury upon the victims (§ 12022.7), causing both
offenses to be serious felonies (§ 1192.7, subd. (c)(8)). It was
further alleged that Figueroa had served three separate prior
terms in a state or federal prison for felony offenses (§ 667.5,
subd. (b)). The court dismissed the prison priors before trial.
1 All undesignated statutory references are to the Penal Code.
2
The jury found Figueroa guilty of count 1 and not guilty of
count 2. The jury also found true the allegation that Figueroa had
inflicted great bodily injury on Jesse Leal.
The court sentenced Figueroa to the upper term of four
years for assault with a deadly weapon enhanced by three years
for personally inflicting great bodily injury. Figueroa timely
appealed.
FACTUAL BACKGROUND
1. Prosecution Evidence
On September 10, 2019, Rivera hosted a party at her house
to celebrate her birthday. Rivera’s sister, Vanessa Hernandez,
Hernandez’s eleven-year-old daughter, J.C., and Hernandez’s
boyfriend, Figueroa, were in attendance, as were several of
Rivera’s coworkers. While the guests gathered in the garage to
sing “Happy Birthday” to Rivera, Figueroa attempted to push her
face into the birthday cake. The table slid and Rivera’s head hit
the edge of the table instead. Rivera went inside the house to
collect herself. Rivera’s husband, Christopher Garcia, confronted
Figueroa and they walked out into the driveway to speak.
Figueroa asked if Garcia wanted to fight and Garcia replied that
he just wanted Figueroa to leave the party. Rivera’s manager,
Bryan Leal,2 approached Garcia to encourage him not to get into
a fight at his wife’s birthday party. Garcia agreed and the two
men were turning back to the garage when Figueroa struck
Bryan in the face, knocking him to the ground. Bryan’s brother,
Jesse, approached Figueroa and the men fought briefly before
2Because Bryan and Jesse Leal share a last name, we refer to both by
their first names. We intend no disrespect.
3
Garcia broke them up. Jesse told Figueroa that he was not
interested in fighting anymore and that Figueroa should leave,
then went to sit inside his brother’s car.
Rivera returned to the party and repeatedly asked
Figueroa and Hernandez to leave. Figueroa struck Rivera in the
face, knocking her to the ground. Several men, including Garcia,
Bryan, and Jesse, started to punch and kick Figueroa. Once the
fight broke up, most guests returned to the garage to attend to
Rivera. Jesse went to smoke a cigarette near the corner of the
garage, on the grass between Rivera’s house and her neighbor’s.
He and his brother believed that Figueroa had left. However,
Figueroa approached Jesse again and the two briefly fought
before Figueroa stabbed Jesse in the throat and slashed him on
the stomach and the back. He left the scene in Hernandez’s car.
Jesse returned to the garage, bleeding profusely from his wounds.
He was hospitalized for over a week and had lasting paralysis of
the left side of his face due to his neck injury.
2. Defense Evidence
Figueroa, Hernandez, and J.C. testified for the defense.
After Hernandez informed Rivera that she, Figueroa, and J.C.
had to leave the party, Rivera brought out the cake. While
everyone sang “Happy Birthday,” Figueroa touched the back of
Rivera’s head. Rivera was intoxicated and slipped forward and
hit her chin on the table. Everyone at the party got upset with
Figueroa. Figueroa apologized to Rivera and to Garcia. The two
men were speaking in the driveway while Hernandez backed her
car out with J.C. in the back seat. Garcia asked Figueroa
repeatedly “Why did you do that?” Bryan then approached and
got in Figueroa’s face and told him to calm down. Figueroa
pushed Bryan’s face away and then Jesse ran up and punched
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Figueroa. Jesse then got inside a car. When Figueroa asked who
had hit him and approached the car where Jesse was sitting,
Jesse again rushed at Figueroa and began to hit him. After Jesse
got off of Figueroa, Rivera came up from behind Figueroa and
asked him to leave. She grabbed his arm and Figueroa was
startled and turned around and swung at her. Rivera fell to the
ground but was not knocked unconscious. Immediately, all the
men at the party ran up and began hitting, kicking and punching
Figueroa. Figueroa was knocked unconscious during part of this
beating.
Figueroa attempted to get up several times, bracing himself
against Hernandez’s car. He eventually stood and took the pocket
knife from his utility belt, holding it out to scare off those
attacking him. Figueroa then addressed Garcia, asking why he
had hit him. As Hernandez was urging Figueroa to leave, Jesse
ran and tackled him again. While the two were on the ground,
Jesse punched Figueroa and attempted to get the knife from him.
The knife ultimately came out of Figueroa’s hand and Jesse got
off him, at which point Figueroa got into Hernandez’s car and
left.
Figueroa was arrested that evening and informed the
officer that he had been knocked out. He testified that he “may
have” also told the officer that he did not know what happened
that night because he was knocked out.
3. Rebuttal Evidence
Bakersfield Police Officer Frederick Martinez interviewed
J.C. on the evening of September 10, 2019. J.C. informed Officer
Martinez that Figueroa had been jumped by three to four men.
She also stated that Hernandez told Figueroa to get into the car
so they could leave, but that Figueroa continued to challenge
5
multiple individuals to a fight. J.C. told the officer that Figueroa
stabbed an unknown person in the back and stabbed Garcia on
the arm. She stated that she believed that Figueroa was at fault
because others asked him to leave but he continued to challenge
people to a fight.
DISCUSSION
Figueroa contends that the trial court erred in instructing
the jury that false statements, the fabrication of evidence, and
flight from the scene, if supported by the evidence, could support
an inference of consciousness of guilt, as there was insufficient
evidence to support these instructions. He further contends that
the court erred in denying his motion for mistrial following a
witness’s allusion to his affiliation with a gang. We disagree with
both contentions and affirm.
1. The court did not err in instructing the jury on
consciousness of guilt.
For consciousness of guilt instructions to be given, “facts
giving rise to an inference of consciousness of guilt” do not need
to be conclusively established; “there need only be some evidence
in the record that, if believed by the jury, would sufficiently
support the suggested inference.” (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 102; People v. Bowman (2011) 202
Cal.App.4th 353, 366 [same].)
“It is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the
case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Such an
error is subject to the state law test under People v. Watson
(1956) 46 Cal.2d 818. (Guiton, at p. 1130.) Under this test, we
determine, based on our examination of the entire record,
6
whether it is reasonably probable that the defendant would have
achieved a more favorable verdict had the trial court not given
the instruction. (Id.; see People v. Rankin (1992) 9 Cal.App.4th
430, 436 [applying Watson standard of review to error in giving
CALJIC No. 2.03, precursor to CALCRIM No. 362]; People v.
Turner (1990) 50 Cal.3d 668, 695 [applying Watson standard of
review when court instructed jury with CALJIC No. 2.52,
precursor to CALCRIM No. 372].)
We conclude that sufficient evidence to support the
consciousness of guilt instructions was present here and the
instructions were properly given. Even if we were to assume that
the evidence was insufficient, we conclude any instructional error
was harmless.
1.1. CALCRIM No. 362
1.1.1. Additional Facts
The prosecutor requested that the jury be instructed with
CALCRIM No. 362, which states: “If the defendant made a false
or misleading statement before this trial relating to the charged
crime, knowing the statement was false or intending to mislead,
that conduct may show that he was aware of his guilt of the
crime and you may consider it in determining his guilt. [¶] If you
conclude that the defendant made the statement, it is up to you
to decide its meaning and importance; however, evidence that the
defendant made such a statement cannot prove guilt by itself.”
The court’s tentative decision was to delete CALCRIM
No. 362 from the instructions. The court explained: “This is when
a defendant makes statements prior to the trial which are
objectively false. Now, not just maybe having an argument over
credibility. It’s something that is objectively false and from that
7
the jury’s allowed to infer consciousness of guilt. For example, if
somebody gives a false name at the scene, that’s a classic
example, and it’s proven up definitively that it’s not the person.
[¶] Here I couldn’t think of anything . . . .”
The prosecutor argued that the evidentiary basis for the
instruction was that Figueroa “said that he was knocked
unconscious and didn’t remember anything, which is completely
contrary to his testimony.” The prosecutor referred the court to
Figueroa’s testimony concerning what he had told the police
officer after he was arrested.
Defense counsel argued that testimony supported that
Figueroa was in and out of consciousness. He asserted that the
statement to the officer was supported by the evidence and, by
the time Figueroa testified at trial, “he had more of a
recollection.”
The court reconsidered its tentative and concluded: “I think
there is a sufficient factual basis in the record to justify giving
that instruction.”
In addition to CALCRIM No. 362, the court instructed the
jury with CALCRIM No. 200, which states, in relevant part: “You
must decide what the facts are. It is up to all of you, and you
alone, to decide what happened based only on the evidence that
has been presented to you in this trial. [¶] . . . [¶] Some of these
instructions may not apply, depending on your findings about the
facts of the case. Do not assume just because I give a particular
instruction that I am suggesting anything about the facts. After
you have decided what the facts are, follow the instructions that
do apply to the facts as you find them.”
8
1.1.2. Analysis
In determining whether CALCRIM No. 362 was properly
given, we consider whether there was any evidence in the record
that could support the conclusion that Figueroa made a false
statement before trial. (See People v. McGowan (2008) 160
Cal.App.4th 1099, 1104 [“trial court properly left it for the jury to
determine whether defendant’s statement to police was false or
deliberately misleading, and if so, what weight should be given to
that evidence”].) Figueroa conceded that, at the time he was
arrested, he “may have” told a police officer that he did not
remember what happened because he had been knocked out. If
the jury believed that Figueroa told the officer he did not recall
what happened, his testimony at trial explaining the events of
that night in detail would suggest that his earlier statement was
untrue. This was sufficient grounds to provide the instruction.
Contrary to Figueroa’s suggestion, we cannot properly reweigh
the evidence and determine that the instruction was improper
because what he told the officer was “true.”
Even if we assume that the court erred in instructing the
jury with CALCRIM No. 362, Figueroa suffered no prejudice. It is
not reasonably probable that Figueroa would have achieved a
more favorable result had the instruction not been given.
Testimony from multiple witnesses who attended the party
supported that the stabbing was not accidental or in self-defense
but was the result of Figueroa initiating another fight with Jesse
after refusing to leave. The consciousness of guilt instructions
had no bearing on this testimony.
Moreover, “the jury need not believe the prosecution’s
evidence suggesting that the statement was false, and even if it
finds that the statement was false, it need not conclude that
9
defendant deliberately lied to hide his complicity in the crime.”
(People v. Kimble (1988) 44 Cal.3d 480, 498.) “CALCRIM No. 362
limits the reach of any adverse inference both by telling the jury
that it decides the ‘meaning and importance’ of the evidence and
by telling the jury the making of a willfully false statement
‘cannot prove guilt by itself.’ [Citation.] CALCRIM No. 362 . . . is
[thus] designed to benefit the defense, ‘ “admonishing the jury to
circumspection regarding evidence that might otherwise be
considered decisively inculpatory.” [Citation.]’ [Citation.] And
because the evidence cannot prove guilt by itself, a jury would
understand that the consciousness of guilt—however deep it
ran—was not the equivalent of a confession. [Citation.] Thus, a
jury would understand both that false statements were not the
equivalent of a confession and that they were not themselves
sufficient to prove guilt of the charged crimes.” (People v. Burton
(2018) 29 Cal.App.5th 917, 925.) The jury was also instructed by
CALCRIM No. 200 that some instructions might not apply,
depending on the jury’s findings of fact, and that it should not
assume anything about the facts just because the court gave a
particular instruction. “We presume jurors understand and follow
the instructions they are given.” (People v. Buenrostro (2018) 6
Cal.5th 367, 431.)
In sum, in light of the conditional nature of CALCRIM
No. 362, the court giving CALCRIM No. 200, and our
consideration of the entire record, we conclude that any error was
harmless.
10
1.2. CALCRIM No. 371
1.2.1. Additional Facts
CALCRIM No. 371 provides, in relevant part: “If the
defendant tried to create false evidence or obtain false testimony,
that conduct may show that he was aware of his guilt. If you
conclude that the defendant made such an attempt, it is up to you
to decide its meaning and importance; however, evidence of such
an attempt cannot prove guilt by itself. [¶] If someone other than
the defendant tried to create false evidence, provide false
testimony, or conceal or destroy evidence, that conduct may show
the defendant was aware of his guilt, but only if the defendant
was present and knew about that conduct, or, if not present,
authorized the other person’s actions. It is up to you to decide the
meaning and importance of this evidence; however, evidence of
such conduct cannot prove guilt by itself.”
J.C. testified that her mother had helped her practice
questioning concerning what is a truth and what is a lie and
helped her come up with examples. She also testified that she
had lied to the police officer she spoke to the night Figueroa was
arrested. She did not recall what she lied about but stated, “I
remember my mom told me it was something important
[¶] . . . [¶] She told me that what I had said was one of the cases
why this is going on or is one of the reasons why this is
happening . . . .” When asked again to confirm that she did not
remember what she lied about to the officer, J.C. stated, “No, I
just remember my mom saying—telling me that what I said—or
why did I say the stuff that I said because some of it wasn’t true.
She said now because of what I said, all of this is going on.” J.C.
also testified that she lived with Figueroa and would see him that
evening after her testimony.
11
Hernandez testified that she discussed J.C.’s testimony
with her, but only to tell J.C. that “she has to tell the truth when
she testifies.” Hernandez also testified that she had discussed the
case with Figueroa, stating: “Just our future, planning to buy a
house. We have to wait for the case is over. I can’t afford a house
without him, you know, so we can’t go do anything else. We can’t
have a life, trying to have a baby. We can’t do any of that. So
yeah, we’ve been talking about it.”
While discussing jury instructions with counsel, the court
explained that its tentative was to allow CALCRIM No. 371,
alternatives B and C. With regards to alternative B, the court
explained, “I think there is some evidence, based on the evidence,
and reasonable inferences from that evidence that the defendant
did try to create false evidence or obtain false testimony and the
jury may conclude from that an attempt to—can infer negative
inferences from that effort to basically create false evidence.”
With respect to alternative C, the court stated, “[T]hat’s
fabrication by a third party, and specifically what I had in mind
there is not the defendant himself, but Ms. Vanessa Hernandez
as it relates to her daughter. I think that makes that instruction,
alternative C, appropriate. [¶] [J.C.] that [sic] testified that her
mother did tell her, for example, that the basis for the
prosecution was pretty much her fault based upon what she said
to the officers, or words to that effect, and from that I think it’s a
reasonable inference that she had applied pressure to [J.C.] to
tell the jury something different than what she told the police
officers.”
The court acknowledged that there was no express
testimony from J.C. that Figueroa had influenced her testimony,
but observed that “there’s a very strong inference, since they’re a
12
family and her mother is engaged with the defendant and she
lives with the defendant, that that pressure may have come from
the defendant as well.” Consistent with its tentative, the court
instructed the jury with alternatives B and C to CALCRIM No.
371.
1.2.2. Analysis
We conclude that there was sufficient evidence to support
giving alternatives B and C to CALCRIM No. 371. As the
Attorney General contends, alternative B to CALCRIM No. 371,
which addresses actions by the defendant to create false
evidence, was supported by Figueroa’s testimony that he told a
police officer that he had been unconscious and did not recall
anything. As discussed above, a jury could reasonably conclude
from the fact that Figueroa was later able to testify as to the
events of that evening in detail that these statements were false.
Our Supreme Court previously concluded that “[t]here is no
reason why a false statement designed to conceal inculpatory
evidence cannot be the basis for giving” CALJIC No. 2.06, the
predecessor to CALCRIM No. 371. (People v. Jackson (1996) 13
Cal.4th 1164, 1225.) Further, as the court noted, the jury could
reasonably infer that Figueroa had an opportunity to influence
the testimony of Hernandez and J.C. because they all lived
together, including during the trial, and because Figueroa’s plans
with Hernandez (i.e., buying a house, having a child) were on
hold unless he was acquitted.
There is also sufficient evidence supporting the court’s use
of alternative C to CALCRIM No. 371, which addresses the
creation of false evidence, provision of false testimony, or
concealment or destruction of evidence by a third party in the
defendant’s presence or with their authorization. J.C. testified
13
that Hernandez told her that she had lied when she told police
that the stabbing was Figueroa’s fault and that J.C.’s statement
was the reason that Figueroa was being tried. Hernandez also
testified that she had discussed J.C.’s testimony with her before
trial. This evidence supports that Hernandez influenced J.C.’s
testimony to benefit Figueroa. Because Figueroa lived with
Hernandez and J.C., a finder of fact could reasonably infer that
he was either present and aware that these conversations were
taking place or asked Hernandez to influence J.C.’s testimony.
Even if there were no substantial evidence to support the
instruction, there was no prejudice to Figueroa. As discussed
above, there was strong evidence against Figueroa from multiple
other witnesses. CALCRIM No. 371 also told the jury that
evidence of creating or concealing evidence, if any existed, was
not sufficient itself to prove guilt and left it to the jury to
determine its “meaning and importance” and “whether the
inference [of consciousness of guilt] should be drawn in light of
the whole record; and . . . how the evidence is to be weighed.”
(People v. Mackey (2015) 233 Cal.App.4th 32, 113.) “The
cautionary nature of the instruction[ ] benefits the defense,
admonishing the jury to circumspection regarding evidence that
might otherwise be considered decisively inculpatory.” (People v.
Jackson, supra, 13 Cal.4th at p. 1224.)
CALCRIM No. 200 also made clear to the jury that it could
disregard instructions that were irrelevant to its factual findings.
In People v. Avila (2009) 46 Cal.4th 680, at pages 709–710, the
Supreme Court assumed without deciding that the court had
erred by instructing the jury with CALJIC No. 2.06, a precursor
to CALCRIM No. 371, but concluded that the error was harmless
where “[t]he jury was also instructed that ‘[w]hether some
14
instructions apply will depend on what you find to be the facts.
Disregard any instruction which applies to facts determined by
you not to exist. Do not conclude that because an instruction has
been given, I am expressing an opinion as to the facts.’ ”
The conclusion that the instruction was not prejudicial,
even if unsupported by substantial evidence, is further supported
by one of the cases on which Figueroa relies, People v. Kerley
(2018) 23 Cal.App.5th 513. The court in Kerley concluded that the
evidence was insufficient to support that the defendant
authorized or was present when his mother purportedly wrote a
letter to police implicating another person as the victim’s
murderer. (Id. at pp. 564–566.) However, the court concluded
that the “error was rendered harmless by the balance of the
instruction.” (Id. at p. 566.) The jury was instructed that an
adverse inference was permissible only if the defendant was
present and knew that a third party had created false evidence
and was further instructed that some instructions might not
apply. (Ibid.) The court “presume[d] the jury understood and
followed these instructions,” and noted that, “[a]t worst, there
was no evidence to support the instruction and it was
superfluous.” (Ibid.) These circumstances were also present here
and render any error harmless.
1.3. CALCRIM No. 372
1.3.1. Additional Facts
CALCRIM No. 372 states: “If the defendant fled or tried to
flee immediately after the crime was committed or after he was
accused of committing the crime, that conduct may show that he
was aware of his guilt. If you conclude that the defendant fled or
tried to flee, it is up to you to decide the meaning and importance
15
of that conduct; however, evidence that the defendant fled or
tried to flee cannot prove guilt by itself.”
When asked by the court to identify facts that supported
providing CALCRIM No. 372 to the jury, the prosecutor
explained: “[T]here was considerable evidence that at the time
that the birthday cake was brought out that the defendant and
Vanessa and [J.C.] were all going to leave at that moment, and
they extended their time so that they could sing happy birthday
and then the plan was for them to leave, and they never left and
never left and never left. [¶] As soon as the stabbing occurred,
they were out of there in a heartbeat. He left his shoes there—or
a shoe there and fled the scene, and it wasn’t like—there was no
evidence that they called 911 or contacted the police. They were
avoiding the crime scene. And so I think this instruction 372 is
highly appropriate.” Although defense counsel argued that
Figueroa was not aware of the injuries to Jesse until trial, the
court concluded that there was sufficient evidence to provide the
instruction, and that the instructions would allow the jury to
disregard instructions that were inapplicable based on its
findings of fact.
1.3.2. Analysis
“Evidence showing consciousness of guilt, such as flight or
escaping from jail, is generally admissible within the trial court’s
discretion.” (People v. Anderson (2018) 5 Cal.5th 372, 391; see
also People v. Lucas (1995) 12 Cal.4th 415, 471.) “To obtain the
instruction, the prosecution need not prove the defendant in fact
fled, i.e., departed the scene to avoid arrest, only that a jury could
find the defendant fled and permissibly infer a consciousness of
guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41
Cal.4th 313, 328.)
16
Although testimony supports that Figueroa was planning
to leave the party around the time they sang “Happy Birthday,”
extensive evidence also supports that he was subsequently asked
to leave multiple times by multiple people but refused to go. The
record further supports that Figueroa departed immediately after
Jesse was stabbed. From this evidence, a jury could reasonably
infer that he fled the scene to avoid arrest.
“Moreover, even if we were to conclude the instruction
should not have been given, any error would have been harmless.
The instruction did not assume that flight was established, but
instead permitted the jury to make that factual determination
and to decide what weight to accord it.” (People v. Carter (2005)
36 Cal.4th 1114, 1182–1183.) “In the absence of any evidence of
flight after accusation, the jury would have understood that the
instruction was to that extent inapplicable. The superfluous
reference to flight after accusation caused defendant no
prejudice.” (People v. Elliott (2012) 53 Cal.4th 535, 584.)
Once again, CALCRIM No. 200 also mitigates any harm
from this instruction being given. In People v. Pettigrew (2021) 62
Cal.App.5th 477, at page 502, the court held that instructing the
jury with CALCRIM No. 372 based on the defendant’s suicide
attempts was instructional error, but that this error was
harmless because CALCRIM No. 372 and CALCRIM No. 200
instructed the jury “to decide for itself whether defendant’s
suicide attempts had any relevance when deciding guilt and the
degree of murder on count 1 and, if it decided the evidence was
irrelevant, it knew to disregard the flight instruction. [Citation.]
[¶] By instructing the jury to disregard inapplicable instructions,
17
the trial court mitigated the potential for prejudice from the
erroneously given flight instruction.”3
2. The court did not abuse its discretion in denying
Figueroa’s motion for mistrial.
“A trial court should grant a motion for mistrial ‘only when
“ ‘a party’s chances of receiving a fair trial have been irreparably
damaged’ ” ’ [citation], that is, if it is ‘apprised of prejudice that it
judges incurable by admonition or instruction’ [citation].
‘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.]
Accordingly, we review a trial court’s ruling on a motion for
3 We are not persuaded that the prosecutor’s reference to the
consciousness of guilt instructions during closing argument renders
any error in giving them prejudicial. The prosecutor discussed the
instructions, but also correctly explained that (1) they only applied if
the jury believed that the evidence supported them, (2) they could not
prove guilt alone, and (3) the jurors were “the sole judges of the
credibility of the witnesses.” Figueroa cites People v. Medellin (2020)
45 Cal.App.5th 519 for the proposition that “[a] prosecutor’s reliance in
argument on an improper instruction highlights the prejudicial nature
of the error.” However, Medellin and the other cases on which Figueroa
relies involved misstatements of law by the prosecutor, ambiguous or
misleading instructions by the court, or improperly admitted evidence.
(See id. at pp. 532–536; People v. Maurer (1995) 32 Cal.App.4th 1121,
1126–1127; People v. Hendrix (2013) 214 Cal.App.4th 216, 248–253.)
None were cases concerning legally correct but purportedly
inapplicable instructions. Because our review of the entire record does
not “affirmatively demonstrate[ ] a reasonable probability that the jury
in fact found the defendant guilty solely on [an] unsupported theory,”
affirmance is appropriate. (People v. Guiton, supra, 4 Cal.4th at p.
1130.)
18
mistrial for abuse of discretion. [Citation.]” (People v. Avila (2006)
38 Cal.4th 491, 573.)
“Although most cases [where a mistrial is requested]
involve prosecutorial or juror misconduct as the basis for the
motion, 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.) “[A] trial court can almost always
cure the prejudice of an improperly volunteered statement by
granting a motion to strike and charging the jury with an
appropriate curative instruction.” (People v. Navarrette (2010)
181 Cal.App.4th 828, 836.) “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.]” (People v. Allen (1978) 77 Cal.App.3d
924, 934–935.)
The erroneous denial of a mistrial motion is prejudicial only
if it is reasonably probable that, but for the admission of the
material upon which the motion was based, the defendant would
have obtained a more favorable outcome. (See People v. Welch
(1999) 20 Cal.4th 701, 749–750 [Watson harmless error standard
applies to the denial of motion for a mistrial based on erroneous
admission of evidence].)
2.1. Additional Facts
Before trial, defense counsel moved to exclude references to
Figueroa being a gang member or affiliated with gangs. The
prosecutor explained that photos of Figueroa taken at the police
station, which the prosecutor intended to use for the purpose of
showing the lack of injuries, showed tattoos suggesting a gang
19
affiliation. The court stated: “[G]ang affiliation information can
be extremely prejudicial, and so at the very least there should be
no reference at all from any of your witnesses about any type of
gang affiliations.” The court urged the prosecutor to try and find
a way to present the photos in a manner that would not include
any gang indicia. The court reiterated: “[R]egardless of what
photos we allow in, no witnesses should be talking about any type
of gangs, assuming that that’s not going to come in otherwise in
this case.” The prosecutor stated that he did not believe this was
a case with “gang undertones” and defense counsel agreed. The
court therefore ordered that “there will be no discussion of gangs
on any level.”
While discussing how Figueroa appeared to want to
continue to fight after he struck Bryan and Jesse intervened,
Shawnta Brown, a witness who attended the birthday party,
testified that “[Figueroa] kept running around—I don’t recall
exactly what gang it was, but it’s—.” The prosecutor began to ask
another question, but the court intervened and instructed the
jury: “Ladies and gentlemen, disregard that evidence. All right?
You should not consider that for any purpose.” Defense counsel
then moved for a mistrial at a sidebar conference.
Outside the presence of the jury, the court heard argument
on the motion. Defense counsel relied on the court’s prior “ruling
on witnesses not blurting out anything about gangs.” 4 In
response, the prosecutor argued that “all [the witness] said was I
don’t know what gang he is, what gang he’s affiliated with”; that
her testimony was “extremely brief” and “wasn’t specifics”; and
4Defense counsel also cited his “prior argument.” Any arguments made
during the sidebar conference were not reported.
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“the Court gave an immediate admonishment and we moved on.”
The prosecutor contended that “the admonishment was
satisfactory and the transgression was minimal, at best.” The
court agreed that the testimony was brief and that it immediately
admonished the jury, and noted that it could provide an
additional admonishment. However, the court stated: “I’m afraid
it was real clear what she said. Didn’t specify what gang it was,
but clearly that he was a member of a gang.”
Notwithstanding his prior agreement that the case did not
involve gang undertones, the prosecutor argued that the evidence
was relevant because Figueroa had claimed a gang affiliation to
intimidate others at the party. The prosecutor asserted that a
police report stated that the witness had heard Figueroa yelling
“South Side Bakers” and throwing gang signs with his hands.
The prosecutor explained that he did not intend to elicit further
testimony on this point, but that the small amount of evidence
that did come in should not trigger a mistrial.
In response, defense counsel stated: “Thinking back, in
regards to my motion for mistrial, we probably aren’t there yet,
but we could get there if—you know, if it continues, but —and
that’s the concern.” The court asked defense counsel whether, if
the motion was denied, he would prefer that the court provide an
additional admonition or whether the existing admonition was
sufficient. Defense counsel stated that the admonition given was
“perfect.”
The court concluded: “[M]y thought, then—and it’s a very,
very close call, by the way—is that I think my curative
instruction was very, very timely, and although it’s succinct, I did
that on purpose because I didn’t want to display to the jury shock
or awe or anything like that. I think we all just kind of coolly and
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calmly went about our business, and my impression is that
within a few minutes, allowing the witness to continue to testify,
with all the activity and the fights, it was just a little blurb, and
what she said almost kind of came and went and the focus was
never on that information and we moved on to other information,
but I’ve got to tell you, it was a very, very close call.” The court
therefore denied the motion, with instructions to the prosecutor
to ensure that Brown and other witnesses make no references to
gang affiliation.
While instructing the jury on the law before trial began, the
court informed the jury that it must disregard any testimony that
the court ordered stricken from the record and must not consider
that testimony for any purpose. The court repeated this
admonition when instructing the jury on the law at the end of
trial.
2.2. Analysis
The court did not abuse its discretion in denying the motion
for mistrial based on a witness’s brief allusion to his affiliation
with a gang.5 Even if we assumed it had, the error would not be
prejudicial.
5Although defense counsel ultimately appeared to agree that the
witness’s gang reference did not require a mistrial, he did not
expressly withdraw his motion. Thus, we choose not to address
Figueroa’s alternative argument that defense counsel was ineffective if
he withdrew the motion. Even if the motion was withdrawn and
defense counsel had no tactical reason for doing so, we would conclude
that there is no reasonable probability the outcome would have been
different if not for the error, and thus Figueroa was not prejudiced. (In
re Hardy (2007) 41 Cal.4th 977, 1018.)
22
The court immediately ordered the admonished the jury to
disregard the evidence and, as the court observed, counsel and
the court proceeded “coolly and calmly” and drew no further
attention to the comment. The court twice instructed the jury to
disregard testimony it had ordered stricken from the record.
Although gang evidence in cases not involving gang
enhancements is potentially prejudicial (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049), we presume that the jury followed
the court’s instructions and disregarded the single, fleeting
reference to gang affiliation. (People v. Boyette (2002) 29 Cal.4th
381, 436.) “Juries often hear unsolicited and inadmissible
comments and in order for trials to proceed without constant
mistrial, it is axiomatic the prejudicial effect of these comments
may be corrected by judicial admonishment; absent evidence to
the contrary the error is deemed cured.” (People v. Martin (1983)
150 Cal.App.3d 148, 163.) Because Figueroa cites nothing in the
record indicating the jurors did not follow the court’s admonitions
and instructions, we assume that they did and that the error was
cured. (See People v. Abel (2012) 53 Cal.4th 891, 925 [possible
prejudice from brief reference to defendant’s past gang affiliation
was “dispelled by the court’s admonition to disregard that portion
of [the] testimony”]; cf. People v. Burgener (2003) 29 Cal.4th 833,
875 [brief and isolated reference to uncharged crimes, followed by
a clear admonition not to consider it for any reason, “did not
irreparably damage defendant’s chances of a fair trial”].)
Further, as Figueroa concedes, the cases on which he relies
to support his contention that the court abused its discretion bear
little similarity to the case before us. In People v. Tatum (2016) 4
Cal.App.5th 1125, at page 1128, the trial court told prospective
jurors in a murder trial that they would judge witness credibility
23
and should not automatically give someone more or less credit
before a witness took the stand. To explain the concept, the trial
court related an anecdote: because the court had horrible
experiences with plumbers, it would not think a plumber was
telling the truth and would not be able to be fair. (Ibid.)
Thereafter, the defendant’s alibi witness testified that the
defendant was with him at the time of the murder. (Id. at
p. 1129.) The alibi witness was a plumber. (Ibid.) The appellate
court in Tatum found that the trial court’s comments allowed the
jury to discredit a witness without determining credibility in
accordance with the proper instructions. (Id. at p. 1131.) The
comments exceeded the scope of proper judicial comment and
interfered with the defendant’s constitutional right to a jury trial,
requiring reversal. (Ibid.) However, a dissenting justice stated
that the anecdote was improper but, when viewed in context, did
not usurp the jurors’ function as judges of witness credibility. (Id.
at p. 1132 (dis. opn. of Rothschild, P. J.).)
In People v. Murillo (2014) 231 Cal.App.4th 448, “[t]he trial
court allow[ed] the prosecutor to ask [a prosecution] witness more
than 100 leading questions concerning the witness’s out-of-court
statements to prove defendant guilty of several criminal
offenses.” (Id. at pp. 449–450.) For example, the prosecutor asked
the witness: “ ‘Isn’t it true . . . that you were shown six
photographs [in January] and asked whether you could identify
anybody in those photographs? . . . [D]o you recall telling the
detectives that it looks like, but you're not sure, [it is] number
four [(Murillo)]? . . . [D]o you recall circling number four
[(Murillo)] and putting your initials, the date, and the time on
that document? . . . [D]o you recall writing a statement that says,
“Number four [(Murillo)] looks like him, but not completely sure.
24
Kind of the same face structure”? . . . [O]n page one of this
exhibit, do you recall signing it under signature of witness in
front of the detectives?’ ” (Id. at p. 451.) The witness refused to
answer or said he had nothing to say. (Ibid.) In concluding that a
mistrial should have been granted, the appellate court noted that
the witness’s “out-of-court statements constituted the only
eyewitness identification of Murillo and were a crucial link in the
proof” (id. at p. 455) and that the prosecutor’s “questions
create[d] the illusion of testimony” and thus “deprived defendant
of a fair trial because he could not exercise his constitutional
right of cross-examination.” (Id. at p. 450.)
The statement at issue in this case was not by the judge
discrediting the credibility of a key witness for the defense, nor
did the court permit extensive, inappropriate questioning of the
only witness to identify the defendant as the culprit. Here, one of
the eight prosecution witnesses made a single, brief, and
tangential allusion to a gang that the trial court immediately
admonished the jury to disregard. It is highly unlikely that the
court’s actions were unable to cure any potential prejudice to
Figueroa. Thus, the court properly exercised its discretion in
denying the motion for mistrial.
Even if the court had abused its discretion, which it did not,
any error was harmless. As discussed above, there was strong
evidence of Figueroa’s guilt. It is highly unlikely that he would
have realized a more favorable result had the jury not heard the
witness’s passing reference to a gang. Thus, any error in denying
the motion for a mistrial was harmless under the Watson
standard.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
RICHARDSON, (ANNE K.) J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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