Opinion
D070707
06-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MARTIN ANDRADE, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF30233) APPEAL from a judgment of the Superior Court of Imperial County, Raymond A. Cota, Judge. Affirmed. Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Martin Andrade of first degree murder (Pen. Code, § 187, subd. (a)). As part of a negotiated agreement with the prosecution, Andrade admitted the truth of the allegation under section 186.22, subdivision (b)(1), that he committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members (gang enhancement allegation). In a bifurcated proceeding, the court found Andrade had a prior strike conviction (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)). The court sentenced Andrade to 50 years to life in prison (25 years doubled for the prior strike), and imposed a 15-year minimum parole eligibility for the gang enhancement.
All statutory references are to the Penal Code unless otherwise indicated.
Andrade contends (1) the trial court violated his federal and state rights to a fair and impartial jury when it dismissed a juror without evidence that he was unable to perform his duty as a juror; (2) his chance of receiving a fair trial was irreparably damaged when the jury was given an incorrect verdict form that called for a finding on the gang enhancement allegation in violation of his negotiated agreement (plea agreement), and a finding on the prior strike conviction allegation; and (3) the court committed reversible error by allowing the prosecution to introduce evidence of a knife that had no connection to the case. Andrade raised the first two issues in a motion for new trial, which the court denied. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of January 5, 2013, murder victim Martin Garza, his sister Yulinda Garza, and their friends Lloyd Johnson, Aaron Garcia, Joe Delgado, Juan Sanchez, and Daniel Camargo attended a birthday party on the outskirts of Brawley. Around midnight, Garza received a text message from a friend informing him of a party in a house in El Centro with an unfamiliar address. The entire Brawley group decided to drive to El Centro to attend the party. Garza, Sanchez, Johnson, and Camargo drove in Sanchez's truck, and Yulinda, Delgado, and Garcia followed them in Garcia's car.
Because Yulinda Garza shares the victim's surname, we will refer to her by her first name. For convenience, we will sometimes refer to Garza, Yulinda, Johnson, Garcia, Delgado, Sanchez, and Camargo collectively as "the Brawley group."
The Brawley group arrived at the El Centro address around 1:00 a.m. and parked the two vehicles across the street from each other near the house where the party was taking place. They all met at the corner and started to walk toward the house. Before they reached the house, a group of about six men, including Andrade, stopped and confronted them. Andrade identified his gang membership by stating, "North Side Centro." He then asked the Brawley group where they were from and inquired about their gang affiliation by asking, "What do you bang?" Andrade repeatedly asked Garza in particular what he "banged." Garza responded that they were from Brawley and did not "bang."
Yulinda became angry that Andrade was harassing Garza. She stepped in between them and said to Andrade, "Leave my brother alone. He does not bang." Andrade responded, "This is grown man's business." He then whistled and a group of about nine to 15 of his friends came from the party to join him. Andrade's group included Brandon Quevedo, who recognized Garza, Johnson, and Camargo. Quevedo told the group from the party that he knew Garza, Johnson, and Camargo and that they were "cool." He shook hands with them. Although Quevedo's greeting appeared to calm the situation, Yulinda observed that Andrade "still seemed a little bothered." She, Delgado, and Garcia felt uncomfortable and started to walk back to Garcia's car.
Before Yulinda, Delgado, and Garcia reached the car, Andrade said, "Nah, nah, nah, fuck these fools, North Side Centro." He then took a knife with a black blade out of his pocket and stabbed Garza. Immediately after Andrade attacked Garza, a fight broke out between Andrade's group and Garza and his friends, Johnson, Sanchez, and Camargo. After Andrade stabbed Garza, someone else tried to stab Johnson, but Johnson knocked his attacker to the ground. Another member of Andrade's group attacked Camargo with a knife. Camargo grabbed the knife by the blade and took it away from his attacker. He folded the knife and placed it under the rear passenger seat of Sanchez's truck.
After Johnson was free from his attacker, he went to Garza who had fallen to the ground. Johnson helped Garza stand up and tried to help him get back to Sanchez's truck, but he fell again. Garza was eventually able to get up and run back to the truck. Johnson, Camargo, and Sanchez tried to help him get into the truck, but he fell out and collapsed. He got up again and tried to run on the sidewalk, but then fell and lost consciousness. Delgado saw that Garza was bleeding heavily from a stab wound in his chest so he asked Garcia to get a rag from his car. Garcia gave Delgado a rag and Delgado used it to apply pressure to Garza's wound while Garcia called 911. Police and paramedics soon arrived and Garza was taken from scene in an ambulance.
Garza died as a result of being stabbed in the chest. An autopsy revealed three stab wounds on his body-the one on his chest, another on his left upper arm, and a third on his back. The stab wound to Garza's chest perforated his heart and was the only fatal wound. Five eyewitnesses identified Andrade as the person who stabbed Garza, including Johnson and Camargo.
In April 2013, Daniel Figueroa's probation officer searched Figueroa's home and found a pocket knife in Figueroa's room. Figueroa told the officer the knife was the murder weapon in the Andrade case. When questioned by a detective the following day, Figueroa said he saw Andrade stab Garza in the chest. After witnessing the stabbing, Figueroa became afraid and ran to his house. Andrade, Quevedo, and "some girls" followed Figueroa to his house, where Andrade gave Figueroa the pocket knife and told him to get rid of it. Figueroa put the knife in a shoe box and kept the box in his room. A cousin he shared his room with had been using the knife to cut wire.
The forensic pathologist who performed the autopsy testified that the fatal wound had the characteristics of being made by a single-edged weapon-i.e., a knife with one sharp side and one blunt side. The margins of the wound were smooth, which "correspond[ed] to a nonserrated or smooth edged blade." When shown the knife recovered from Figueroa's home, the pathologist testified that it was a "very likely candidate for the weapon that caused [Garza's fatal] wound[,]" but he could not say to a reasonable degree of medical certainty that it was the murder weapon.
In addition to the knife Camargo placed in Sanchez's truck and the knife recovered from Figueroa's house, police recovered three other knives: a knife from a bedroom in the house where the party the Brawley group attempted to attend occurred, a large kitchen knife that a passerby found on a newsstand rack five blocks away from the crime scene, and a folding knife from Andrade's house.
DISCUSSION
I
DISMISSAL OF JUROR
Andrade contends the trial court violated his federal and state rights to a fair and impartial jury when it dismissed a juror without evidence that the juror was unable to perform his duty. We conclude the court properly dismissed the juror.
A. Background
On the second day of jury deliberations, the court received a jury note stating: "Juror No. 10 is taking an economics class and witness Yulinda Garza is in his class. [R]ealized 2 weeks ago. Advise[.]" The court and counsel questioned Juror No. 10 about the note outside the presence of the other jurors.
Juror No. 10 explained that two weeks before during his economics class, he turned around and saw Yulinda in his class and realized who it was when he made eye contact with her. He never conversed with Yulinda; he only made eye contact with her. However, a woman he was dating showed Yulinda his picture and asked her if she knew him. Yulinda responded that she had seen Juror No. 10 in court that day wearing a plaid shirt. The court asked Juror No. 10 if being in the same class with Yulinda might affect his ability to be a fair and impartial juror. Juror No. 10 responded, "No."
The court excused Juror No. 10 from the courtroom and expressed the view that there was no need to take immediate action on the matter because Juror No. 10 and Yulinda had no interaction in their class. Defense counsel stated he "would like to sleep on it and go do research on it." The court encouraged both counsel to "sleep on it" and give the matter some consideration, and then asked the prosecutor, Marco Nunez, if he presently had any thoughts about it.
Nunez responded: "I have something extra to throw into the mix and this is kind of strange." Nunez then revealed that he used the professional networking website LinkedIn and that Juror No. 10's picture had appeared on his LinkedIn page, indicating Juror No. 10 had "looked him up." Nunez stated that "out of an abundance of caution, [he] would stipulate to having [Juror No. 10] removed because the jurors are told not to get on the internet and look up anything case related." Counsel and the court agreed to discuss the matter further the next day.
The next morning, the court asked Nunez how he came to the conclusion that Juror No. 10 had looked him up or "researched" him on LinkedIn. Nunez explained, "LinkedIn is for professionals who want to connect with other professionals, and usually in their area of expertise. [¶] And if somebody wants to connect with you on that website, they literally have to type your name in, and your name has to come up, and then, they have to go to your web page . . . ." Nunez further explained that Juror No. 10 could have found his LinkedIn page by typing his name in a search engine like Google. The information about Juror No. 10 on Nunez's LinkedIn page revealed that Juror No. 10 had looked up Nunez two weeks ago. Nunez was concerned that Juror No. 10 had been using the internet to research parties to the case in violation of the court's jury instructions. He was also concerned about Juror No. 10's waiting two weeks to disclose that he had recognized Yulinda in his economics class.
The court suggested bringing Juror No. 10 into the courtroom for questioning. Nunez suggested Juror No. 10 first be asked "a broad question . . . : Have you ever talked to anyone using the internet or social media to conduct any research or background investigation regarding any of the case facts, witnesses or parties to this case? And then see how he answers. And then the court can ask him the follow-up questions."
Defense counsel objected to "the entire procedure" and questioned why Nunez had not brought Juror No. 10's researching Nunez to the court's attention two weeks earlier when Juror No. 10 appeared on Nunez's LinkedIn page. The court had Nunez sworn as a witness and allowed defense counsel to question him. After discussing how LinkedIn works with the court, defense counsel agreed with the court's suggestion that Juror No. 10 be brought back into the courtroom for questioning. However, defense counsel later expressed the view that bringing in Juror No. 10 for questioning was "a fishing expedition by the prosecution, at this point, to get the juror they perceive harmful to them off the jury." Counsel stated: "I would ask the court not to single out [Juror No. 10]. I would ask the court to follow up with all the jurors . . . and ask them the same question that's been proposed by Mr. Nunez."
Nunez explained that Juror No. 10 seemed familiar to him when he came into the courtroom for questioning and Nunez then realized that Juror No. 10 was "the one who tried to contact me on LinkedIn."
The court denied counsel's request to question all of the jurors and had Juror No. 10 brought into the courtroom for questioning. The court asked Juror No. 10: "Following up on yesterday's session, have you talked to anyone, using the internet or social media, to conduct any kind of research or background investigation with regard to any of the facts of this case, or witnesses, or parties?" Juror No. 10 responded, "No." Nunez then showed Juror No. 10 his (Juror No. 10's) picture on Nunez's LinkedIn account and pointed out that "it says you found me on Home Page two weeks ago[.]" Juror No. 10 admitted that he looked for Nunez.
Nunez stated that "Home Page" is a "third-party website," indicating it was similar to a search engine like Google.
The court then asked Juror No. 10 if he had typed in Nunez's name. Juror No. 10 replied that he typed in "Carlos Nunez," who was one of his friends, and prosecutor Marco Nunez's name "popped up on the list and I clicked on it." The court asked him why he did that and Juror No. 10 responded, "It was . . . a familiar face and I clicked on the link[.]" However, he said he did not recognize Nunez in the "small picture" that came up, he "just happened to click on it." He did not do any kind of follow-up research or attempt to connect with Nunez.
The court asked Juror No. 10 if he knew who it was when he clicked on Nunez's name next to the thumbnail photograph of Nunez. Juror 10 responded, "Not at the moment. But you start looking through people. See, it populates a list and you start clicking. It happens to be that my friend's name is Carlos Nunez. And if you are looking for their pictures or you are actually going through the links-and it just happened to be that he is also Nunez and I just went on there." The court then asked, "But it didn't dawn on you that this was the prosecutor in this case?" Juror No. 10 replied, "A little bit, but I just curiously clicked on it. I shouldn't have done it." The court then asked Juror No. 10 if before he clicked on Nunez's name, he "a little bit" thought that it was "Mr. Nunez, the prosecutor in the case[.]" Juror No. 10 replied, "Yeah." On questioning by defense counsel, Juror No. 10 said that once he realized it was the prosecutor, he exited the page "right away." He did not do any research on the internet or social media.
Out of Juror No. 10's presence, Nunez stated: "He said that he found me by . . . typing in somebody else's name, Carlos Nunez. But that's not the way it works. You actually have to type the person's name in. [¶] And then, he said that he saw a small picture of me that maybe looked familiar but didn't really know who it was. That's kind of hard to believe. We have been in this trial for months." Defense counsel disagreed with Nunez about how LinkedIn works, stating: "Mr. Nunez is not an expert on LinkedIn. I object to him testifying as such, as to how it works. [¶] Mr. Nunez has himself indicated he's not very involved in social media. He rarely uses it. So he doesn't know how it functions. The only information before the court is that [Juror No. 10] was looking for a friend of his named Carlos Nunez and Marco Nunez's name came up. [¶] That's been my experience as well. If you type in the last name of somebody, you will see everybody else with that name, in that area that you have typed in, for example, in Imperial County. So then, the information before the court is that the juror . . . clicked on that picture, that thumbnail, as he described it, realized it was Mr. Nunez, the prosecutor, and clicked right out. He did no additional research or information." Defense counsel "strongly oppose[d]" excusing Juror No. 10.
The court responded to defense counsel as follows: "One thing I wanted to point out to you, which is, frankly, uppermost in my mind, is that even assuming what you say is accurate, that fails to explain why he decided to click on Mr. Nunez's name, even though he suspected that it was Mr. Nunez. And he admitted that. It wasn't just like he saw some person whose name came up and an image that he didn't recognize after he had clicked on the other Nunez person. Mr. Nunez, the prosecutor here, he came up and he purposefully clicked on Mr. Nunez, our prosecutor here, knowing or suspecting it was him. [¶] At that point, what justification does he have for pursuing that if he knows or has reason to know or suspect it is Mr. Nunez? [¶] Irrespective that this all began as an effort to contact somebody else, and even if it is accurate, like you say, that names come up, as he said, and then he starts indiscriminately clicking on other Nunezes, or other people's names who come up that he is searching for-even if some of that is all true, as I understood what he said there, my last question concerning this topic addressed if he still intentionally, purposefully clicked on Mr. Nunez, the prosecutor's name, knowing then that this was probably the prosecutor. And he had no explanation for that."
The court noted the jury was instructed with CALCRIM No. 201 to "not use the internet, a dictionary, or other source of information or means of communication in any way in connection with this case." Defense counsel argued that Juror No. 10's conduct did not violate that instruction.
The court disagreed and stated: "[I]t seems what I have here, at least to my satisfaction, is an admission by this juror that he clicked on Mr. Nunez, the prosecutor's name, when he either realized it was him or had every reason to know that it was him. [¶] And that alone seems to me, in spite of [defense counsel's] argument to the contrary, is-in my mind, is a violation of the instructions that I have given to the jury. And it's a communication, in some way, in connection with this case. I don't know how much more general one can phrase, don't do anything by using the internet in connection with this case. And Mr. Nunez is an attorney connected to this case. [¶] And then, quite frankly, the issue involving his . . . knowing or realizing who Yulinda was is somewhat suspect. But I can understand if one thinks he is just simply exercising maybe bad judgment in not bringing it to our attention. I'm not prepared to say that he has done something knowingly untoward by not reporting as he should have, but my . . . ruling here is based on mostly what appears to be a violation of the rule involving the research in this case. And specifically under the circumstances that I have just outlined in my ruling with Mr. Nunez. [¶] So I'm going to excuse him, if that's your motion, Mr. Nunez." The court then excused Juror No. 10 on Nunez's motion and over defense counsel's objection.
B. Legal Principles Regarding Discharge of Jurors
Section 1089 provides, in relevant part: "If at any time, whether before or after the final submission of the case to the jury, a juror . . . upon . . . good cause shown to the court is found to be unable to perform his or her duty, . . . the court may order the juror to be discharged and draw the name of an alternate, who shall then take a place in the jury box, and be subject to the same rules and regulations as though the alternate juror had been selected as one of the original jurors." "A trial court learning of grounds for dismissal 'has an affirmative obligation to investigate.' [Citation.] However, '[b]oth the scope of any investigation and the ultimate decision whether to discharge a given juror are committed to the sound discretion of the trial court.' " (People v. Duff (2014) 58 Cal.4th 527, 560 (Duff).)
"A juror who refuses to follow the court's instructions is 'unable to perform his duty' within the meaning of Penal Code section 1089." (People v. Williams (2001) 25 Cal.4th 441, 448.) The fact that a juror may be able to disregard the court's instructions without recourse "does not diminish the trial court's authority to discharge a juror who, the court learns, is unable or unwilling to follow the court's instructions." (Id. at p. 449.) "[A] court may exercise its discretion to remove a juror for serious and wilful misconduct . . . even if this misconduct is 'neutral' as between the parties and does not suggest bias toward either side." (People v. Daniels (1991) 52 Cal.3d 815, 863-864 (Daniels).)
"[I]n reviewing a decision to excuse a juror, we do not ask only whether substantial evidence supports the decision—i.e., whether there is evidence from which a reasonable trial court could have concluded dismissal was warranted—but further whether it appears as a 'demonstrable reality' that the trial court actually did rely on such evidence as the basis for its decision." (Duff, supra, 58 Cal.4th at p. 560.) "The [demonstrable reality] requirement we add to traditional substantial evidence review is that the record establish the actual basis for the trial court's decision. So long as it does, we ask only whether the evidence relied upon was sufficient to support that basis as grounds for dismissal; we do not independently reweigh the evidence or demand more compelling proof than that which could satisfy a reasonable jurist." (Ibid.)
C. Analysis
We conclude the record supports the court's exercise of discretion to dismiss Juror No. 10-i.e., there was sufficient evidence for the court to reasonably find dismissal of Juror No. 10 was warranted, and the record shows a demonstrable reality that the court actually relied on that evidence as the basis for its decision to excuse Juror No. 10.
The court's preliminary instructions to the jury included the following directive: "During the trial, do not read, listen to or watch any news report or commentary about the case from any source. [¶] Do not use the Internet . . . or other source of information . . . in any way in connection with this case either on your own or as a group." (Italics added.) The court also instructed the jury: "I want to emphasize that you may not use any form of research or communication, including electronic or wireless research [or] communication to research . . . regarding any subject of the trial. If you violate this rule, you may be subject to jail time, a fine or other punishment." The court's closing instructions included the directive to "not use the Internet, a dictionary, or other source of information or means of communication in any way in connection with this case either on your own or as a group." (Italics added.) The court later instructed: "It is very important that you not use the Internet, a dictionary or other source of information in any way in connection with this case during your deliberations." (Italics added.)
When the court brought Juror No. 10 into the courtroom for questioning during deliberations, the court asked generally whether he had used "the internet or social media, to conduct any kind of research or background investigation with regard to any of the facts of this case, or witnesses, or the parties[.]" Juror No. 10 denied that he had done so. However, when Nunez showed Juror No. 10 his (Juror No. 10's) picture on Nunez's LinkedIn account, establishing that Juror No. 10 had searched for and found Nunez on LinkedIn, Juror No. 10 admitted that he had searched for Nunez, but then claimed he had typed in the name of a person other than the prosecutor with the surname Nunez. Juror No. 10 initially denied that he recognized the prosecutor when his picture came up and claimed that when he clicked on the prosecutor's name, he did not realize it was the prosecutor. But on further questioning by the court, he admitted that he knew "a little bit" that it was the prosecutor's name he was clicking on and that he just "curiously clicked on it." He added, "I shouldn't have done it." Juror No. 10 then admitted that before he clicked on Nunez's name, he "a little bit" thought that it was Nunez, the prosecutor.
This exchange established that Juror No. 10 violated the court's express instruction to not use the internet to conduct any research regarding the case. Based on Juror No. 10's violation of that instruction, the court could reasonably conclude that Juror No. 10 would not follow other instructions. (See Daniels, supra, 52 Cal.3d at p. 865 ["[A] judge may reasonably conclude that a juror who has violated instructions to refrain from discussing the case or reading newspaper accounts of the trial cannot be counted on to follow instructions in the future."].)
In denying Andrade's motion for new trial, the court stated, "Now when I have a person who seems to . . . misrepresent the truth, one who purposefully seeks to undermine the integrity of the process of this court for the defendant to receive a fair and just trial as well as the People of the State of California, and then seeing . . . him acknowledging that he had done something wrong even though he had been informed not to, then this violation of the Court's instruction leaves this Court [with] a serious doubt . . . whether this person will be a fair, impartial juror, whether he will follow the instructions of the Court that the Court subsequently will give to this juror."
Although Juror No. 10 asserted that when he realized he had clicked on the prosecutor and not a different Nunez he "clicked right out" and did no additional research, the court could reasonably find that assertion was not credible in light of Juror No. 10's initial misrepresentations to the court that he had done no internet research regarding the case and was unaware that the name he clicked on was the prosecutor's name until after he clicked on it. Juror No. 10 quickly admitted these representations were false upon further questioning. Given Juror No. 10's misrepresentations, the court could reasonably find Juror No. 10 was not credible when he told the court he had done no further research on the prosecutor after clicking on his name. In denying Andrade's motion for a new trial brought in part on the court's dismissal of Juror No. 10, the court noted Juror No. 10's initial denial that he had done any research on the internet and stated, "So right from the get-go, I've got a problem here with a person who is now seemingly misrepresenting the truth." The court later stated, "I don't know what other research he may have done that was unknown to us." The court's concern that Juror No. 10 had conducted additional research on the prosecutor despite asserting otherwise was reasonable. Given Juror No. 10's violation of the court's instruction to not conduct any research on the internet regarding the case and his initial misrepresentations to the court regarding his violation of the instruction, the court acted well within its discretion in dismissing Juror No. 10.
II
ERRONEOUS VERDICT FORM
Andrade contends his chance of receiving a fair trial was irreparably damaged when the jury was given an incorrect verdict form that called for a finding on the gang enhancement allegation in violation of his plea agreement, and a finding on the prior strike conviction allegation.
A. Background
As noted, Andrade admitted to the gang enhancement allegation under a plea agreement with the prosecution. The agreement included the parties' written stipulation to the following facts: "1. North Side Centro (NSC) is a criminal street gang in the County of Imperial. [¶] 2. Martin Gabriel Andrade is a member of the NSC criminal street gang. [¶] 3. At the time of the alleged offense in this case (1/6/13), Martin Gabriel Andrade was a member of the NSC criminal street gang. [¶] 4. Martin Gabriel Andrade's gang moniker is 'Tiny.' " This stipulation was presented to the jury.
The parties further agreed that as a result of the stipulation, neither party would introduce evidence or make reference to the following: "1) "[Andrade's] prior conviction . . . for purposes of establishing a predicate [offense] . . . under Penal Code Section 186.22(b)(1). . . . [¶] 2) Any mention of [Andrade's] tattoos or their meaning. [¶] 3) Any so-called 'gang' related writings or drawings seized from [Andrade's house . . . . [¶] 4) Any photographs of [Andrade's] tattoos or the meaning thereof. [¶] 5) Any photographs of [Andrade] allegedly 'throwing' or displaying gang signs. [¶] 6) Any jail records or information (Kites) which has or may have gang connotations. [¶] 7) Any 'Field Interviews' of [Andrade]. [¶] 8) The robbery/theft/assault of the 7-Eleven store which took place on or about 1/6/2013 allegedly involving [Andrade]. [¶] 9) The fight which allegedly took place between [Andrade] and [another] on 1/5/2013. [¶] 10) Prior contacts between [Andrade] and law enforcement. [¶] 11) Alleged gang related photos on [Andrade's] face book page or cellphone. [¶] 12) Crimes by other members of NSC to establish the predicate element of [section] 186.22(b)(1)."
When the jury began deliberations, they were inadvertently given verdict forms that had the correct case title, but identified "Neil Evan Green" as the defendant. On the forms to be used for a verdict of guilty of first or second degree murder, the first paragraph called for a finding that Neil Evan Green was guilty of murder, and the second paragraph asked the jury to make a finding of "true" or "not true" as to whether "the defendant, Martin Gabriel Andrade, committed the above-entitled offense for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members." (Italics added.) The third paragraph asked the jury to make a "true" or "not true" finding as to whether Andrade suffered a "prior conviction of a serious or violent felony: . . . Penal Code section 245(a)(1); Conviction Date 9/21/12. . . [.]" The forms to be used for a not guilty verdict also identified the defendant as "Neil Evan Green."
As noted, the court found Andrade had a prior strike conviction in a bifurcated proceeding after Andrade waived his right to have the jury decide that issue. During discussion of the erroneous verdict forms, defense counsel pointed out that the court had granted his motion in limine to exclude the facts of Andrade's prior conviction. The reporter's transcript of the parties' in limine motions indicates that after lengthy argument regarding Andrade's motion to exclude his prior conviction, the court ruled the conviction would be admissible for impeachment purposes if Andrade testified, but the specific date of the conviction would be excluded.
During the jury's deliberations, its foreperson sent a note to the court stating, "We were given verdict forms for Neil Evan Green?" The court and counsel discussed the matter out of the presence of the jury. Defense counsel moved for a mistrial, arguing that because the incorrect verdict forms referenced Andrade's prior conviction, Andrade was denied his right of confrontation with respect to the prior conviction, and that his right to due process and right to counsel were violated because counsel was not able to litigate the issue of the prior conviction. The prosecutor argued there was no prejudice because the jury's note showed they realized they were given the wrong verdict forms.
The court denied Andrade's motion for a mistrial. The court concluded the jury would easily be able to follow an instruction to disregard the incorrect verdict forms because the forms contained the wrong information and belonged to another case. The jury returned to the courtroom and the court instructed them regarding the incorrect verdict forms as follows: "Ladies and gentlemen, the aforementioned verdict forms for Neil Evan Green are jury forms for the wrong case. And they were erroneously given to you. They contain the wrong information. We will be giving you new verdict forms, as soon as we can, sometime this afternoon. Probably sooner, rather than later. [¶] Please do not consider the initial verdict forms for any reason. Do not discuss them, nor allow them to enter into your deliberations in any way."
B. Applicable Legal Principles
A motion for mistrial "should only be granted when a defendant's 'chances of receiving a fair trial have been irreparably damaged.' " (People v. Valdez (2004) 32 Cal.4th 73, 128.) In other words, " ' " '[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.] Accordingly, '[w]e review a trial court's denial of a motion for mistrial for abuse of discretion.' " (People v. Lightsey (2012) 54 Cal.4th 668, 718 (Lightsey).)
Similarly, " ' "[w]e review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard." [Citations.] " 'A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.' " ' " (Lightsey, supra, 54 Cal.4th at p. 729; People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.) [" 'Under this standard, a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' "].)
The denial of a motion for mistrial or new trial is not prejudicial and, therefore, not an abuse of discretion if it is not reasonably probable that a result more favorable to defendant would have resulted if the claimed error forming the basis of the motion had not occurred. (People v. Welch (1999) 20 Cal.4th 701, 749-750, citing People v. Watson (1956) 46 Cal.2d 818, 836; People v. Haldeen (1968) 267 Cal.App.2d 478, 482 [trial court in the exercise of its broad discretion in ruling on a motion for new trial determines whether error is prejudicial].)
C. Analysis
The trial court did not abuse its discretion in concluding that the incorrect verdict forms initially given to the jury did not irreparably damage Andrade's chance of receiving a fair trial. The court reasonably concluded that any potential prejudice to Andrade resulting from the incorrect forms was curable by the court's instruction that the jury had received forms for the wrong case, the forms contained wrong information, and the jury was not to consider them for any reason or discuss them in their deliberations. The jury is presumed to follow the court's instructions (People v. Cruz (2001) 93 Cal.App.4th 69, 73), including curative instructions (People v. Osband (1996) 13 Cal.4th 622, 717; People v. Yeoman (2003) 31 Cal.4th 93, 139 ["[T]he presumption that jurors understand and follow instructions [is] '[t]he crucial assumption underlying our constitutional system of trial by jury.' "]).
Accordingly, the court could reasonably assume the jury readily followed its instruction to disregard the incorrect verdict forms. Because the jury recognized it was given incorrect forms and the court instructed them that the forms were "for the wrong case," contained wrong information, and were not to be considered for any purpose, it is highly unlikely the jury considered the gang enhancement and prior conviction references on the forms in any way that was prejudicial to Andrade. The jury was given no instructions regarding gang enhancement findings or prior conviction findings, and the court could reasonably assume the jury would disregard the gang enhancement and prior conviction references on the incorrect verdict forms after the court instructed them that the forms were for another case.
Moreover, the jury was instructed with CALCRIM No. 104 that it was required to decide the facts in the case using only the evidence presented in the courtroom, "evidence" being limited to trial testimony, exhibits admitted into evidence, and anything else the court told them to consider as evidence. Given that instruction, the jury would not have considered any information on the incorrect verdict forms as evidence in the case. In any event, we conclude the court's error in presenting the incorrect verdict forms to the jury was harmless in light of the overwhelming evidence that Andrade was guilty of first degree murder. Given the evidence that five eye witnesses identified Andrade as the person who fatally stabbed Garza, it is not reasonably probable that the jury would have returned a verdict more favorable to Andrade if it had not been given the incorrect verdict forms.
The jury's receipt of the incorrect verdict forms did not violate the parties' plea agreement because the gang enhancement references on the incorrect forms did not provide any of the gang-related information or other specific information that the parties agreed would not be introduced or referenced at trial as part of the agreement. The prior conviction reference was simply a reference to a "serious or violent felony" followed by a case number and "Penal Code Section 245(a)(1)," which likely did not apprise the jury of the nature of the prior conviction. The prior conviction reference did not disclose "[t]he robbery/theft/assault of the 7-Eleven store which took place on or about 1/6/2013 allegedly involving [Andrade]," "[t]he fight which allegedly took place between [Andrade] and [another] on 1/5/2013[,]" or any "[p]rior contacts between [Andrade] and law enforcement."
The court did not abuse its discretion in denying Andrade's motions for mistrial and new trial based on the incorrect verdict forms.
III
EVIDENCE OF MULTIPLE KNIVES
Andrade contends the court committed prejudicial error by allowing the prosecution to introduce evidence of "knives recovered from [his] residence [that] had no relevance to the charged offenses."
A. Background
As we noted in our statement of facts, only one of the five knives of which evidence was introduced at trial was recovered from Andrade's residence; the other four were recovered, respectively, from Figueroa's house, a bedroom in the house where the party the Brawley group attempted to attend occurred, a newsstand rack five blocks away from the crime scene, and under the rear passenger seat of Sanchez's truck. Andrade's objection at trial that he notes in his opening brief was to the evidence of the single knife recovered from his residence. Accordingly, we assume that Andrade's objection on appeal is to the court's admission of evidence of that knife, and that his plural reference to "knives recovered from his residence" is inadvertent.
When the prosecution introduced the knife recovered from Andrade's residence, Andrade's counsel objected on the grounds that the knife had "nothing to do with this case whatsoever" and therefore was irrelevant and inadmissible under Evidence Code section 352, and that its admission violated Andrade's due process rights. The court overruled the objection, finding the knife was "probative" because it was "consistent with the characteristics of the knife that may have been used in the alleged murder[,]" and its admission would not be unduly prejudicial.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
B. Applicable Legal Principles
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; italics omitted.)
Even if the trial court errs in admitting or excluding evidence, the error does not require reversal unless it "caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
"When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant's possession some time after the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Riser (1956) 47 Cal.2d 566, 577.)
C. Analysis
We conclude the court did not abuse its discretion in allowing the prosecution to introduce evidence of the knife recovered from Andrade's residence. Although the forensic pathologist who performed the autopsy testified that Garza's fatal stab wound had smooth margins and corresponded to a nonserrated or smooth edged blade, and that the knife recovered from Figueroa's home was a "very likely candidate" for the murder weapon, he could not say to a reasonable degree of medical certainty that the knife recovered from Figueroa's home was the murder weapon. On cross-examination he admitted that a serrated knife will not always leave a scalloped wound, and he was reminded that he told a detective that the knife recovered from the newsstand could have caused Garza's stab wounds. The forensic pathologist who testified for the defense testified that he could not determine whether Garza's fatal stab wound was made by a straight edge blade or a serrated blade. He opined that the knife recovered from Figueroa's home did not inflict Garza's fatal wound because the wound was too deep for the length of the blade of that knife.
Thus, the specific weapon that inflicted Garza's fatal wound was not conclusively determined and the prosecution did not rely exclusively on the knife recovered from Figueroa's house as being the murder weapon. There was no evidence that conclusively eliminated the knife recovered from Andrade's house as the murder weapon. Because the knife found in Andrade's residence could have been the murder weapon, the court did not abuse its discretion in allowing the prosecution to introduce evidence of that knife. (People v. Riser, supra, 47 Cal.2d at p. 577.)
To the extent the court erred in admitting evidence of the knife recovered from Andrade's residence, the error was harmless in light of the overwhelming evidence supporting Andrade's conviction. As we noted above, five eye witnesses identified Andrade as the person who fatally stabbed Garza, including Figueroa, who told a detective that shortly after the murder, Andrade gave Figueroa the pocket knife that Figueroa's probation officer recovered from Figueroa's house and told him to get rid of it. In light of the overwhelming evidence that Andrade fatally stabbed Garza, and the evidence that he attempted to conceal the murder weapon, it is not reasonably probable that the jury would have returned a verdict more favorable to Andrade if the court had excluded evidence of the knife found at his residence.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.