Filed 10/29/15 P. v. Garcia CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068604
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 12CM2042)
                   v.

RANDY GARCIA,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
         Michael Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-




*        Before Detjen, Acting P.J., Peña, J. and Smith, J.
                                   INTRODUCTION
       Appellant Randy Garcia was convicted of first degree residential burglary. (Pen.
Code, §§ 459/460, subd. (a).)1 In addition, an enhancement allegation attached for three
prior prison terms was found true (§ 667.5, subd. (b)). Appellant was sentenced to nine
years in prison with credit for 376 days in custody.
       Appellant contends the trial court erred in denying his motion for mistrial after a
police officer volunteered during his testimony that paperwork located in appellant’s
vehicle indicated appellant was a possible suspect in other burglaries. Appellant argues
that the testimony was incurably prejudicial. We disagree and affirm the judgment.
                                          FACTS
       On June 14, 2012, Harold Van Heeringen left his home in Hanford, California
around 4:30 a.m. At approximately 8:58 a.m., two of Van Heeringen’s neighbors, Bobby
Robertson and Diana Trafny, saw people carry items out of Van Heeringen’s garage and
load the items into a vehicle. Robertson saw two males and one female, one of the men
drove off on Van Heeringen’s motorcycle; Trafny saw one male and one female. Trafny,
approximately 10 to 15 feet away from the male, identified the male as appellant.2
Appellant was carrying a box to a gold four-door Chevy Cavalier parked in Van
Heeringen’s driveway. Trafny contacted Van Heeringen and then the police.
       Police Officer Anthony Pellouso from the Hanford Police Department arrived on
scene and observed that the house appeared to have been rummaged through and doors
appeared to have been broken into. When Van Heeringen arrived home, he discovered
various items missing from his residence. Ten minutes after his arrival, Officer Pellouso

1      All undesignated statutory references are to the Penal Code unless otherwise
indicated.
2      Robertson was unable to identify a suspect. Trafny was unable to positively
identify appellant pursuant to an in-field show-up and misidentified him in a
photographic lineup on June 14, 2012, but identified appellant at the courthouse both the
day before trial and during trial.


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responded to another residence where he located a gold Chevy Cavalier. Officer Pellouso
searched the unlocked vehicle and discovered various items identified by Van Heeringen
as some of the items taken from his home. Paperwork was also discovered in the vehicle
containing appellant’s name.
       Appellant was questioned by Detective Mathews of the Hanford Police
Department about the burglary. Appellant told Detective Mathews that his acquaintance,
Juan, asked him for a ride that morning. Juan, an unidentified male, and appellant
entered Van Heeringen’s residence after Juan brandished a firearm at appellant. Juan
took appellant’s keys and appellant began walking. A friend who happened to drive by,
Pete, gave appellant a ride back to Juan’s house, where appellant contacted his sister to
tell her that someone stole his vehicle.
       After a 30-minute break in questioning, appellant indicated he initially went to the
home of a man named “Weasel” (Jose Valdes), where Valdes and an unidentified male
asked appellant for a ride. Valdes had brandished the firearm, forced appellant inside
Van Heeringen’s garage, and taken appellant’s keys. Pete then drove appellant to
Valdes’s home where appellant’s sister, a man named Guy Quinones, and Valdes’s
daughter were waiting. Throughout police questioning, appellant referred to Juan and
Valdes as two different people.
       Defense Case
       At trial, appellant testified in his defense. On June 14, 2012, an acquaintance,
Juan, called appellant repeatedly to ask for a ride. He testified that during police
questioning, he learned that Juan was actually a man named Jose Valdes, who went by
the street moniker “Weasel.” Appellant picked up Juan, as well as another male Juan
referred to as “Guy,” and drove them to a residential area using a Chevy Cavalier
appellant borrowed.3 Juan brandished a firearm against appellant and forced him to exit

3      Appellant referred to the Chevy Cavalier as his vehicle, this opinion does the same
for purposes of clarity.

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the vehicle and enter Van Heeringen’s garage. Juan took appellant’s car keys and then
allowed him to leave.
       Appellant testified that after leaving Van Heeringen’s home, he was given a ride
back to Juan’s home by his friend Pete. As he exited the vehicle, appellant saw his sister
walking toward him. Appellant told his sister to contact the police and then left to meet
with his parole officer for an appointment where he was picked up for questioning about
the burglary.
       Appellant maintained during police questioning and at trial that he did not see a
female participate in the burglary.
       Evidence of Prior Criminality
       During trial, the prosecution called Officer Anthony Pellouso to testify about his
role in the burglary investigation. On direct examination, the prosecutor asked Officer
Pellouso about the significance of a document recovered in appellant’s gold Chevy
Cavalier. Officer Pellouso responded, “It had the name Randy Garcia on it, which was a
possible suspect of other burglaries that we had prior to this one. And [he] was also the
registered owner of the vehicle, I believe.” After the prosecution moved to admit items
of evidence, a discussion was held outside the jury’s presence about Officer Pellouso’s
testimony.
       Defense counsel moved for a mistrial. The trial court determined that the
testimony was prejudicial, albeit inadvertently elicited, and withheld ruling on defense
counsel’s motion until the following morning. The next day, the court ruled that an
admonition would be sufficient to cure any prejudice from Officer Pellouso’s testimony.
The court based its decision on the fact that the challenged testimony was brief and
fleeting, it elicited no noticeable reaction from the jury, and the jury was already aware
that appellant was a felon on parole.
       The trial court struck Officer Pellouso’s testimony referring to appellant as a
possible suspect in other burglaries. The court further admonished the jury to disregard

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the testimony, not consider it for any purpose, not discuss it, and not allow it to enter into
their deliberations. Jurors indicated that they would not have difficulty following the
court’s admonition.
                           DENIAL OF MISTRIAL MOTION
        A trial court should only grant a motion for mistrial when the opportunity for a
fair trial has been irreparably lost and cannot be cured by admonition or instruction.
(People v. Avila (2006) 38 Cal.4th 491, 573.) “‘“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.]’” (People v. Harris
(1994) 22 Cal.App.4th 1575, 1581; see also People v. Avila, supra, 38 Cal.4th at p. 573.)
Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of
discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.)
       A witness’s inadvertent or volunteered statement can provide the basis for a
finding of incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565
(Wharton).) A statement “exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the outcome of the
trial.” (People v. Harris, supra, 22 Cal.App.4th at p. 1580 [witness’s reference to
defendant’s parole officer on cross-examination resulted in harmless error where trial
court struck the comment, instructed the jury to disregard it, and defendant’s guilt was
overwhelming]; People v. Valdez, supra, 32 Cal.4th at p. 128 [although the issue was
waived on appeal, curative instruction would have mitigated prejudice resulting from
officer’s statement he interviewed defendant at Chino Institute, referencing additional
criminality]; People v. Morgan (1978) 87 Cal.App.3d 59, 76 [testimony referring to
defendant’s parolee status was prejudicial but finding reversal inappropriate in light of
defendant’s overwhelming guilt], disapproved on other grounds in People v. Kimble
(1988) 44 Cal.3d 480, 497-498.)



                                              5.
       Here, Officer Pellouso testified that appellant was a possible suspect in other
burglaries. While his brief statement referenced appellant’s possible involvement in
other burglaries, the same type of crime appellant was on trial for, the trial court was well
within its discretion to decline to declare a mistrial. There is insufficient evidence from
which to conclude appellant’s chance of receiving a fair trial was irreparably damaged as
a result of the foregoing statement.
       In Wharton, supra, 53 Cal.3d 522, our Supreme Court found no abuse of
discretion in denying the defendant’s motion for mistrial. During trial, the court
instructed the prosecutor to warn a witness, a jail inmate, that he could not implicate the
defendant for injuries caused by another person. (Id. at p. 563.) The witness, who had
visible facial injuries from a beating he sustained, made an unsolicited statement during
his testimony that while the defendant did not beat him, he “got the word out.” (Id. at
p. 564.) Outside the presence of the jury, defense counsel moved for mistrial based on
the statement. (Ibid.) Following a weekend break, the court admonished the jury to
disregard the witness’s statement. (Id. at p. 565.)
       The Supreme Court found the witness’s statement was not incurably prejudicial.
(Wharton, supra, 53 Cal.3d at p. 566.) It reasoned that the defendant was not directly
implicated in the beating based on the witness’s statement, a sufficient admonition was
given to the jury, defense counsel’s argument that the jury would disregard the
admonition after a weekend break was mere speculation, and most importantly, the
witness clarified on cross-examination that a third party had beaten him. (Ibid.)
       In both this case and Wharton, the challenged testimony was the result of
inadvertent or volunteered statements which were not deliberately elicited by the
prosecution. Similar to Wharton, the trial court here responded to Officer Pellouso’s
brief and fleeting reference to appellant being a suspect in other burglaries with a strong
and prompt admonition to the jury and by striking the challenged testimony. (Wharton,
supra, 53 Cal.3d at p. 565.) Jurors indicated that they understood the admonition and

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would not have a problem complying with it. The jury is presumed to be reasonable and
to have followed the trial court’s instructions and advisements. (People v. Anzalone
(2013) 56 Cal.4th 545, 557; People v. Thomas (2012) 54 Cal.4th 908, 940; People v.
Harris (1994) 9 Cal.4th 407, 426.)
       We further note that any prejudice resulting from Officer Pellouso’s testimony is
outweighed by the strength of the evidence presented against appellant at trial. In People
v. Rolon (1967) 66 Cal.2d 690, 693-694, the court held that “[a]n 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].” Here, the record
points convincingly toward appellant’s guilt.
       Trafny identified appellant as the man she observed carrying a box from Van
Heeringen’s garage to a gold Chevy Cavalier. Within one hour of Trafny’s call to police,
appellant’s gold Chevy Cavalier was located with items belonging to Van Heeringen
inside the vehicle. Appellant told two different versions of the events of the burglary to
the police. His testimony at trial was inconsistent with prior versions he told authorities,
as well as the eyewitness testimony of Van Heeringen’s neighbors.
       During police questioning, appellant initially told Detective Mathews that he and
two other men, Juan and an unidentified male, entered Van Heeringen’s residence after
Juan brandished a firearm at him. After leaving Van Heeringen’s home, appellant was
given a ride by his friend Pete, and then contacted his sister.
       After a 30-minute break in questioning, appellant changed his story. In this
version of events, appellant referred to Juan and Jose Valdes (Weasel) as two separate
people. Appellant indicated that he went over to Valdes’s home where he picked up
Valdes and another unidentified male. Valdes brandished the firearm at appellant and
then took appellant’s vehicle. In this version, Pete gave appellant a ride back to Valdes’s
house where appellant’s sister, Guy Quinones, and Valdes’s daughter were waiting.



                                              7.
         At trial, appellant testified that Juan and Valdes were actually the same person.
He also indicated that Valdes had actually referred to the unidentified male participant as
“Guy.” In each version, appellant claimed he never saw a female participant, contrary to
the testimony of Van Heeringen’s neighbors. False statements by a defendant may be
admitted to “support an inference of consciousness of guilt.” (People v. Showers (1968)
68 Cal.2d 639, 643.) Appellant’s testimony, which conflicted with his own prior
statements, as well as the testimony of eyewitnesses whose liberty interests were not at
stake, support the inference that his versions were all false and reflect a consciousness of
guilt.
         Appellant also testified that he was wearing a global positioning system ankle
monitor at the time of the burglary because he was a felon on parole. The only
reasonable inference to be drawn from his admission to being at the location of the
burglary is that he had to manufacture an exculpatory version of events since his ankle
monitor was tracking his location. Additionally, because the jury was already aware that
appellant was a felon on parole, the fact that he was a suspect in another uncharged crime
would not have been surprising for them to learn.
         Appellant’s proximity to the burglary, Trafny’s identification of appellant, the
discovery of various items belonging to Van Heeringen in appellant’s vehicle, and
appellant’s inconsistent version of events, point strongly toward his guilt. In light of the
evidence against appellant, the brief and fleeting nature of the challenged testimony, the
prompt and direct admonition by the court, and the jury’s indication that they would
follow the admonition, we find that the trial court did not abuse its discretion in denying
appellant’s motion for mistrial.
                                       DISPOSITION
         The judgment is affirmed.




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