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People v. Banks1/24/2003
under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
The trial court had overruled defense counsel's objection on relevancy grounds to the evidence of Mastick's observations and his objection on Evidence Code section 352 grounds to the evidence of Mastick's observations and Jackson's statement to him explaining how she had sustained the injuries. As the trial court observed, its ruling with respect to the admissibility of Jackson's statement to Mastick under Evidence Code section 1370 was ambiguous. The prosecutor explained why she believed that the required foundation had been established, permitting her to elicit the testimony, and that she believed defense counsel had opened the door with his questions suggesting that the injuries might have been self-inflicted. The trial court found that no misconduct had occurred. (See People v. Morris (1991) 53 Cal.3d 152, 204, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)
We conclude that the prosecutor did not act in a deceptive or reprehensible manner in asking the questions and that appellant was not denied due process or a fair trial. Even were we to find that prosecutorial misconduct occurred, however, it would have been non-prejudicial. Evidence of the injuries was properly before the jury, as was evidence of appellant's prior instance of domestic violence, and the jury demonstrated that it was not unduly influenced by evidence of prior acts, since it did not reach verdicts on the assault and criminal threats charges and was leaning 11 to one for acquittal on the assault charge. Reversal on this ground would not be warranted. (People v. Barnett (1998) 17 Cal.4th 1044, 1133-1134.)
Moreover, the trial court properly determined that it was not required to grant the request for a mistrial because the evidence was simply not prejudicial. "`"A mistrial should be granted if the court 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.]" (People v. Lucero (2000) 23 Cal.4th 692, 713-714.)
The trial court sustained defense counsel's objections, struck the officer's testimony, and admonished the jury to disregard it. It thereafter admonished the jury in accordance with CALJIC No. 1.02 that it was not to consider for any purpose any evidence that it had stricken, and that it was to treat such evidence as if it had never heard of it. The jury is presumed to have understood and obeyed the trial court's instructions. (People v. Chavez (2000) 84 Cal.App.4th 25, 30-31.) The admonition sufficed to cure any prejudice inherent in the question and answer. (People v. Hines (1997) 15 Cal.4th 997, 1038; see People v. Gutierrez (2002) 28 Cal.4th 1083, 1147, mod. 29 Cal.4th 141b.)
As the trial court aptly observed, there was very little prejudice in the question and answer, particularly in light of the Evidence Code section 1109 prior act evidence before the jury. Although defense counsel argued that the challenged evidence was prejudicial because it might lead the
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