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People v. Banks1/24/2003
that ground. However, the motion to exclude the evidence had already been denied on that ground, as defense counsel himself observed when he explained that he was not attempting to revisit the issue, and we will review that ruling. We use the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) The evidence of Jackson's injuries was not gruesome or emphasized in any way, particularly since Jackson was not in court to testify and the evidence was introduced only through Mastick's testimony that he observed bruises and lacerations, without any description of the injuries. The evidence was not unduly prejudicial in the sense of uniquely tending to evoke an emotional bias against appellant without regard to its relevance; rather, it was prejudicial simply because it was highly probative on the criminal threats count. (Ibid.) Given the high probative value of the evidence, there was no abuse of discretion in the trial court's determination that the probative value of the evidence outweighed any prejudicial effect.
IV. The trial court did not abuse its discretion in denying the motion for mistrial based upon the claim of prosecutorial misconduct.
Appellant contends that the trial court's denial of his motion for mistrial, after the prosecutor engaged in prejudicial misconduct, deprived him of his rights to due process and a fair trial. This contention must fail.
As indicated above, when the prosecutor informed the trial court that Jackson was unavailable, she sought under Evidence Code section 1370 to admit the hearsay evidence of Jackson's statement to Mastick that her bruises were inflicted by appellant during a prior incident of physical abuse. During the discussion on the admissibility of the evidence, the trial court stated, ". . . I may agree with you on (a)(3) and (a)(4) when I hear testimony, which is why I can't rule on it now." The court further stated to the prosecutor, ". . . I need to hear a little bit more about the statements, what context it's in. [ ] You just said it was a fresh injury. I don't know whether or not it could have been years old."
During direct examination of Mastick, the prosecutor asked, "Why did [Jackson] tell you she was afraid?" Defense counsel renewed his objection. The trial court sustained the objection, ruling that the statement did not appear to qualify under subdivision (a)(3) of Evidence Code section 1370, which requires the proponent to establish that the statement was made "at or near the time of the infliction or threat of physical injury . . . ," and because it also might not qualify under subdivision (a)(1) of that section, requiring that it "purport to narrate, describe, or explain the infliction or threat of physical injury upon the declarant." The prosecutor argued that she would be able to lay a proper foundation by inquiring of the officer whether the bruises and scratches appeared to be fresh, and thus the statements would be admissible. The trial court replied, "The question, as phrased, the pending question does not call for that. [ ] Objection sustained. [ ] If there will be foundation, I will need to hear it."
The prosecutor asked if Mastick saw any physical injuries on Jackson. Defense counsel's relevancy objection was overruled, and Mastick testified that he saw bruises on her leg and lacerations on her wrist. The prosecutor asked, "When you say lacerations, did those lacerations appear to be fresh to you?" Mastick replied, "Not fresh. Hours old, but fresh. In the last few days." The prosecutor asked, "And did she ever tell you how she received those bruises?" Mastick replied, "From the defendant." Defense counsel stated, "Objection on the court's previous order." Th
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