Filed 3/16/15 P. v. Moses CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C076037

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F00202)

         v.

LaSALLE RAMON MOSES,

                   Defendant and Appellant.




         Defendant LaSalle Ramon Moses appeals from a judgment of conviction
following a jury trial, contending the trial court abused its discretion in denying his
motion for a mistrial, which was premised on allegations the prosecutor committed
misconduct in questioning a defense witness regarding defendant’s prior act of domestic
violence. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         On November 16, 2012, while Jessica Celmer was walking her dog at her
apartment complex, she ran into defendant and a group of his friends. She saw that one

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of the women in the group turned away, and, thinking the woman was afraid of her dog,
Celmer said, “ ‘Don’t worry, he won’t hurt you.’ ” Defendant approached and
challenged Celmer, saying “keep walking your dog, bitch,” “keep going, and get out of
here, you bitch.” Celmer apologized, and defendant approached her with his arm raised
as if he were going to hit her. Another member of defendant’s group physically
intervened but defendant kept calling her “bitch,” told her to keep walking and he would
hurt her if he saw her, and spit in Celmer’s face.
       On the evening of November 19, 2012, Alan Jones, the manager of the apartment
complex informed a group of tenants and visitors who were gathered in an exterior
stairwell that they had to quiet down and go inside. The group complied and Jones went
back to his apartment. He heard noise outside and, through his window, saw defendant1
with an unleashed pit bull. Jones had previously received complaints about a man with
an unleashed pit bull at the apartment complex, so Jones went outside and told defendant,
who was not a tenant, he would have to leave and take the dog with him. Defendant
responded that Jones could not tell him what to do; Jones repeated his instruction to leave
and take the dog off the property. Defendant approached Jones and hit him in the face,
causing Jones to fall unconscious. Defendant continued to kick Jones after he had fallen.
As a result of the encounter, Jones had metal plates surgically attached to his jawbone,
had his mouth wired shut, has several broken teeth, has two smashed discs in his back,
has loss of hearing in both ears, and has loss of vision in one eye. At the time of the
incident, Jones was 62 years old, was five feet five inches tall, and weighed 150 pounds;
defendant was 24 years old, was six feet tall, and weighed about 200 pounds.




1      Jones was unable to positively identify defendant as this man but thought it was
possibly him, and Celmer positively identified the man as defendant. Neither Jones nor
Celmer were able to identify defendant in photo lineups prepared by law enforcement
officers.

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       Prior to trial, the People moved in limine to introduce evidence of defendant’s
prior misdemeanor conviction for domestic violence: (1) to impeach defendant should he
testify, and (2) as evidence of defendant’s propensity for violence if he were to offer
evidence of Jones’s propensity for violence. Defendant moved in limine to exclude
evidence of defendant’s prior violence unless he first proffered evidence of Jones’s
character for violence. The trial court ordered that no reference be made to defendant’s
domestic violence conviction.
       The prosecutor then asked to be permitted to question Ecoiah Winston regarding
defendant’s prior domestic violence, if she testified on defendant’s behalf, because
Winston was the victim of that incident and the incident may be relevant to her bias,
motive, or credibility in testifying on defendant’s behalf. The trial court ruled that though
she could be impeached with prior inconsistent statements about the assault of Jones,
“unless there’s something unexpected that comes from her testimony such as [defense
counsel] . . . opens the door for some reason about the issue of domestic violence . . .
your question of her would raise the same potentially inflammatory unduly prejudicial
impact that, that the jury would conclude that this man [(defendant)] has hit his girlfriend
so he was very likely to have the propensity to just hit . . . Mr. Jones. [¶] So I am not
inclined to allow you to do that and, in fact, my order will be to exclude all reference and
any reference to this 2011 act of domestic violence.”
       During trial, Winston, who was defendant’s ex-girlfriend and a tenant of the
apartment complex, testified on defendant’s behalf. Her testimony indicated that Jones
was the aggressor and that defendant only hit Jones one time. During cross-examination,
there was an unreported sidebar conference with counsel, and then the prosecutor asked
Winston if she had called the police in 2007 and spoken to them about defendant.
Defense counsel sought another conference; the trial court instead asked if counsel had an
objection; defense counsel asserted an unspecified objection; and the trial court overruled
the objection. The prosecutor then asked Winston if she had spoken with the police about

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defendant in April 2011, to which Winston responded that she was “not sure.” The
prosecutor asked again, “Isn’t it true that you spoke to the police because you called them
regarding an incident with the Defendant?” Before Winston could answer, the trial court
sent the jurors out of the courtroom.
       The trial court addressed counsel: “There was a discussion at side bar. [Defense
counsel] raised a concern about any reference to a domestic violence incident between
Ms. Winston and Mr. Moses in April of 2011. [¶] That concern is justified. [¶] The
Court made a pretrial ruling to exclude any reference to domestic violence, a report of
domestic violence, an incident thereof, between Ms. Winston and the Defendant. [¶]
Now, Ms. Wilson [the prosecutor], I know that you were anxious to impeach the witness
about her prior relationship with Mr. Moses, and you can do that. But I suggest to you, in
fact, I am directing you, do not refer to ‘police intervention, activity,’ quote, unquote
‘incident.’ [¶] That suggests to the jury that the police were invited to their residence, or
wherever the location was, to intervene between Ms. Winston and Mr. Moses. And then
the further inference that it probably was domestic violence related. [¶] I think you can
ask her, did she make certain utterances? Did she admit that she lived with the Defendant
previously? Did she admit he was a resident there? His belongings were there. I don’t
know what it is that you have in your report. But stay clear of quote, unquote, ‘incidents,
arrests,’ or reference to ‘violence.’ ”
       Defense counsel moved for a mistrial claiming the prosecutor had engaged in
misconduct by asking the witness if she had called the police regarding defendant in light
of the trial court’s pretrial order and its order at the side bar conference minutes earlier
directing the prosecutor not to talk about the domestic violence. The prosecutor
responded that she had not stated the call related to domestic violence and that she did not
violate the trial court’s orders. The trial court found the prosecutor had not committed
misconduct, that the “incident” referred to by the prosecutor had not been elaborated
upon, that there was no suggestion it involved domestic violence, and that it could as

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easily have suggested a dog being in the apartment or loud music. The trial court further
denied the request for a mistrial, finding “there was nothing about the last question by the
prosecutor that has denied [defendant] a right to a fair trial.”
       Ultimately, the jury found defendant guilty of assaulting Jones by means of force
likely to produce great bodily injury, found true the allegation that defendant personally
inflicted bodily harm on Jones in the commission of the assault, and found defendant
guilty of battery against Jones resulting in serious bodily injury. The jury also found
defendant guilty of assault and battery against Celmer.
       The trial court sentenced defendant to an aggregate term of seven years in state
prison. Defendant was also awarded statutory presentence credit and was ordered to pay
statutory fines and fees.
                                        DISCUSSION
       Defendant contends the trial court abused its discretion by denying his motion for
a mistrial based on the prosecutor’s question to Winston regarding a telephone call to the
police about an “incident” involving defendant. He asserts this question inappropriately
seeks inadmissible testimony regarding defendant’s prior domestic violence in
contravention of the trial court’s orders. Though intentionally eliciting inadmissible
testimony may constitute prosecutorial misconduct (People v. Abel (2012) 53 Cal.4th
891, 925) and “[p]rosecutorial misconduct may constitute an appropriate basis for a
mistrial motion” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154), here, the trial court
found the prosecutor’s question did not amount to prosecutorial misconduct. We need
not decide the propriety of that ruling because even if the prosecutor did commit
misconduct, defendant still has not shown prejudice to warrant a mistrial. Therefore, we
conclude the trial court did not abuse its discretion in denying defendant’s motion for a
mistrial.
       “A motion for ‘ “mistrial should be granted if the court is apprised of prejudice
that it judges incurable by admonition or instruction.” ’ ” (People v. Montes (2014)

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58 Cal.4th 809, 888.) “Whether a particular incident is so prejudicial that it warrants a
mistrial ‘requires a nuanced, fact-based analysis,’ which is best performed by the trial
court. [Citation.] We review the trial court’s order denying a motion for mistrial under
the deferential abuse of discretion standard. [Citation.] ‘Under this standard, a trial
court’s ruling will not be disturbed, and reversal of the judgment is not required, unless
the court exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v. Dunn (2012)
205 Cal.App.4th 1086, 1094.)
       Here, the prosecutor asked Winston a series of questions on cross-examination that
defendant contends were sufficiently prejudicial to warrant a mistrial:
       “Q: You mentioned on Direct Examination that you are not currently the
girlfriend of the Defendant, correct?
       “A: Correct.
       “Q: But you used to be, right?
       “A: A long time ago.
       “Q: Actually, you were as recently as April of 2011, weren’t you?
       “A: No.
       “Q: Would looking at a report help refresh your memory regarding that?
       “A: Sure.
       [Whereupon, the prosecutor provided the witness with a report to review.]
       “Q: [S]o I will ask you again: You were dating him as recently as April 19th,
2011, correct?
       “A: No, I was not.
       “Q: Okay. So you did speak with someone on that date and told that person that
you had been dating the Defendant for four years, correct?
       “A: I don’t recall that.
       [Whereupon an unreported sidebar conference occurred.]

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       “Q: Do you recall calling the police in April of 2007, Ms. Winston?
       “A: Yes.
       “Q: And speaking to the police about the Defendant?
       [Whereupon defense counsel raised an unspecified objection, which the trial court
overruled. Nonetheless, the prosecutor continued questioning the witness without
receiving a response to the previous question.]
       “Q: Do you recall speaking to the police in April 2011, about the Defendant?
       “A: At that address shown on the report?
       “Q: I am just asking, in April of 2011, you spoke with police about Mr. Moses,
didn’t you?
       “A: I am not sure.
       “Q: Isn’t it true that you spoke to the police because you called them regarding an
incident with the Defendant?”
       Defendant argues that when the prosecutor asked Winston whether she had spoken
to the police in April of 2011 about defendant, the jury was made aware of defendant’s
prior act of violence against Winston, the effect of which was prejudicial. The trial court
rejected this argument when it denied defendant’s motion for a mistrial; the trial court
found the “incident” had not been elaborated upon, there was no suggestion it was
domestic violence, the witness denied she was in a relationship with defendant at that
point, and the “incident” was as likely to involve some other type of incident involving a
dog in the apartment or loud music. We find no error in this conclusion.
       The trial court could reasonably conclude the jury was unlikely to draw from the
prosecutor’s questions the highly speculative inference that defendant had hit Winston,
and the even more speculative inference that since defendant hit Winston, he has a
violent character and therefore must have committed the charged acts of violence.
Further, any danger the court would draw such an inference was dealt with by the trial
court’s instruction that the attorneys’ questions are not evidence and that if a witness is

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not permitted to answer a question, the jury “must ignore the question.” Thus, any
possible prejudice in permitting the question to be heard is harmless because it was
dispelled by the trial court’s instruction to the jury to disregard the unanswered question.
(People v. Abel, supra, 53 Cal.4th at pp. 925-926.)
                                      DISPOSITION
       The judgment is affirmed.



                                                        ROBIE                  , Acting P. J.



We concur:



      MURRAY                , J.



      HOCH                  , J.




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