Opinion
A164358
09-07-2023
THE PEOPLE, Plaintiff and Respondent, v. SERINA DIANA MENDOZA, Defendant and Appellant.
NOT TO BE PUBLISHED
(County of Contra Costa Super. Ct. No. 05-170308-1)
GOLDMAN, J.
A jury convicted Serina Diana Mendoza of felony murder, robbery, and burglary of an inhabited dwelling. She was sentenced to life in prison without the possibility of parole.
Mendoza's trial took place in July and August 2021, during a resurgence of the COVID-19 pandemic. Her first two claims of error are based on the conditions under which the trial proceeded. First, the trial court required testifying witnesses to wear transparent face shields, which Mendoza contends deprived her of her right to confront the witnesses against her. Second, the court required the jurors and counsel to wear masks, and Mendoza herself to wear either a face shield or mask, which she contends deprived her of her right to an impartial jury trial.
In her third and final claim of error, Mendoza argues that the prosecutor engaged in prejudicial misconduct while cross-examining her. Mendoza acknowledged that she participated in the burglary, robbery, and murder, but contended that she did so only because she feared her alleged accomplice and putative boyfriend, Eduardo Contreras. In response, the prosecutor asked Mendoza whether she and Contreras planned for her to fabricate testimony blaming him for her participation in the crimes, and whether she was aware that Contreras had admitted the existence of such a plan during a child custody proceeding. Mendoza contends that these questions constituted prosecutorial misconduct because they implied facts that the prosecutor neither had reasonable grounds to believe Mendoza would confirm nor was prepared to prove by other means.
We find no prejudicial error and affirm.
BACKGROUND
Mendoza was convicted for her participation in the burglary, robbery, and homicide of Jabbaar Mahmood in his home. Except where otherwise stated, our recitation of the facts below is taken from Mendoza's testimony at trial.
Several months before the murder, Mendoza met Mahmood while working as an exotic dancer at a club in Stockton. They had a "love/hate relationship" that at times was romantic and at other times more oriented towards making money.
Not long after she met Mahmood, Mendoza met Eduardo Contreras at the Stockton club. Mendoza and Contreras went on two dates and then became intimate. Shortly thereafter, and less than a month before the murder, Contreras moved in with Mendoza. Three days before the murder, Contreras's friend, known as "The Done," came to stay at Mendoza's home as well. During this time, Mendoza continued to text Mahmood and communicate with him through social media, which made Contreras jealous. Mendoza gave Contreras her phone password and he frequently went through her phone.
Earlier on the day of the crimes, Mendoza and Contreras were in a fight. Later, Mendoza texted with Mahmood and planned to go to his home at 9:00 p.m. When Contreras arrived at her home in the evening, he was with The Done and another man named "Kilo." Contreras discovered her plans, became angry, and took her phone. He texted Mahmood, "On my way," from that phone. Contreras then told Mendoza they "were going for a ride."
Mendoza, Contreras, and The Done left Mendoza's home and got into her car, while Kilo got into her other car. The Done was driving the first car, with Mendoza and Contreras in the rear seats. Contreras had a gun that he passed back and forth with The Done. Contreras, laughing, stated The Done was wanted for murder.
When they arrived at Mahmood's house, Contreras's gun was sitting in his lap, pointed at Mendoza while he put on gloves. Contreras dialed Mahmood's phone number and handed the phone to Mendoza. Mendoza exited the car and approached Mahmood's house with another woman who had ridden in the car with Kilo. Mendoza knocked on the door. Mahmood answered and let both women enter. Shortly afterwards, one of the women went back to the door and opened it for Contreras, Kilo, and The Done. A struggle ensued, and Mahmood was shot and killed. Contreras took Mahmood's wallet. The Done told Contreras they should kill Mendoza and threatened to kill her mother.
The prosecution called as a witness Christina Martinez, who was friendly with Mendoza growing up and had reconnected with her in the months after the murder. At the time of the trial, Martinez was serving a 30-month federal sentence for narcotics sales and received a benefit for her cooperation. According to Martinez, Mendoza admitted to planning the robbery, but said she did not want to participate in it. Martinez testified that Mendoza told her she participated because Contreras made her or wanted her to participate. According to Martinez, Mendoza had an ongoing relationship with Contreras, and referred to him as her boyfriend. Martinez also testified that Mendoza told her that, later in the same year, Mendoza and Contreras planned and executed another robbery that ended in a shootout. The victim was Mendoza's ex-boyfriend.
A former police officer testified that he arrested Mendoza several months after Mahmood's murder. The officer testified that Mendoza was riding in the passenger seat of her car, while Contreras was driving. According to the officer, Mendoza instructed him to release her car to Contreras.
A different officer testified that approximately a year after the murder, he arrested Mendoza a second time. The officer testified that Mendoza was at her home, where her car and Contreras's car were parked next to each other. Mendoza testified that, by the time of the second arrest, she had developed romantic feelings for Contreras and was pregnant with his child. Mendoza and the officer both testified that she instructed the officer to leave her two children in Contreras's care. The officer testified that Mendoza called Contreras her "boyfriend," and that she also instructed him to leave her cell phone with Contreras. The officer testified that he brought the children and cell phone to Mendoza's apartment, where Contreras answered the door and agreed to take them. Shortly thereafter, according to the officer, a different officer returned to retrieve Mendoza's cell phone. The officer testified that Contreras answered the door once again, and that he returned the cell phone.
While jailed after the second arrest, Mendoza regularly called Contreras, who, with her stepfather, was trying to help her. Contreras was listed on jail visiting logs as Mendoza's boyfriend.
An investigator for the District Attorney's office testified that one day during trial, he surveilled Mendoza's home in Galt. He observed a car driving away from the home and returning later that day. The investigator testified that the car was registered to Contreras. Mendoza later testified that she had dropped Contreras off at the airport that day and then picked up her children and returned home. She testified that Contreras's employer owned the home, Contreras was on the rental agreement, and Contreras used the address to receive mail for his utilities.
DISCUSSION
Mendoza makes two related, but distinct, arguments regarding the COVID-19 protocols in place during her trial. She contends that the trial court's requirement that testifying witnesses wear transparent face shields-and in one instance a mask-impermissibly infringed her right to confront the witnesses against her. She also argues that she was deprived of her right to an impartial trial because she could not see jurors' facial expressions, and the masks dehumanized her before the jury and interfered with communication between her counsel and the jury.
Mendoza also contends that the prosecutor engaged in prejudicial misconduct by questioning her regarding Contreras's inadmissible hearsay statements in the separate custody proceeding without a good faith basis to believe that Mendoza was aware that Contreras made those statements and could testify to them.
We address her arguments in turn.
1. Mendoza's Confrontation Right
a. Factual Background
Before the January 2021 pretrial conference, Mendoza's counsel moved to continue the trial to no earlier than July 2021, citing COVID-19-related impacts on Mendoza's rights to confrontation and to an impartial jury trial.
The trial began July 19, 2021. By the next day, due to a new wave of COVID-19 infections, the superior court issued a general order requiring "anyone entering publicly-accessible Court facilities . . . to wear compliant facemasks at all times. Compliant face masks must completely cover the nose and mouth ...." (Superior Court of California, County of Contra Costa, Public Information Office Press Release <https://cc-courts.org/general/docs/PressRelease-MaskingSocialDistancing-20210719.pdf> [as of July 19, 2021].)
Consistent with the general order, the trial court ordered everyone in the courtroom, including the jurors, to wear masks, except that witnesses were ordered to wear transparent face shields while testifying. The court stated it would enforce "the masking requirement in all public spaces in the courthouse for everybody," and reminded jurors, courtroom spectators, attorneys, and non-testifying witnesses to wear their masks to cover their mouths and noses. The court instructed each witness to don a face shield before they testified. At the beginning of their testimony, the court reminded testifying witnesses to speak up and into the microphone or to otherwise adjust their position, ensuring the witnesses' testimony could be heard.
When the People called Dr. Arnold Josselson to the stand, he refused to remove his mask, stating "[i]t's a health issue," and that he was "afraid of the Delta variant." The court asked counsel if Mendoza would agree to waive her Sixth Amendment confrontation right, including the "right to both see and have the jury see his face, his full face, while he's testifying." Mendoza and her counsel conferred and agreed she waived the right. When the court queried a second time, both confirmed the agreement as to "this witness in particular." The court then referenced, without objection, "the agreement of all parties" that Dr. Josselson would remain masked during his testimony.
During the trial, the court emphasized that trial procedure was unavoidably impacted by the resurgence of the pandemic. One witness could not testify on the day originally planned because she was in COVID-19 quarantine in the jail where she was housed. Part way through trial, a juror who had been in the hospital had to be excused and an alternate empaneled so as not to disrupt the proceedings further, increase the risk of illness to trial participants, and potentially cause a mistrial.
b. Constitutional Principles
Mendoza's argument rests on the Sixth Amendment to the United States Constitution and its counterpart in Article I, section 15 of the California Constitution. Consistent with Mendoza's briefing, we treat the federal and state rights as coextensive. (See People v. Arredondo (2019) 8 Cal.5th 694, 699 (Arredondo) [applying Coy v. Iowa (1988) 487 U.S. 1012 (Coy) and Maryland v. Craig (1990) 497 U.S. 836 (Craig), along with California precedent, to confrontation issue]; People v. Sharp (1994) 29 Cal.App.4th 1772, 1780, 1782 [treating federal and state rights as coextensive], overruled on other grounds by People v. Martinez (1995) 11 Cal.4th 434, 452.)
The confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him ...." (U.S. Const., 6th Amend.; see also Cal. Const., art. I, § 15 ["The defendant in a criminal cause has the right . . . to be confronted with the witnesses against the defendant"].) The "ultimate goal" of the clause is to "ensure reliability of evidence." (Crawford v. Washington (2004) 541 U.S. 36, 61.) The confrontation right includes" 'the right physically to face those who testify against [the defendant]'" (Coy, supra, 487 U.S. at p. 1017), as well as the right "to ensure that the witness gives his statement before the jury so the jury may observe the witness's demeanor" (United States v. de Jesus-Casteneda (9th Cir. 2013) 705 F.3d 1117, 1119). "[T]he right to face-to-face confrontation is not absolute" (People v. Lopez (2022) 75 Cal.App.5th 227, 230 (Lopez)), and "may be satisfied . . . where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." (Craig, supra, 497 U.S. at p. 850.)
Even assuming the use of face shields impinged on Mendoza's right to face-to-face confrontation in a cognizable way, the court did not err in balancing that right against competing policy interests during a resurgence of the pandemic. (People v. Bharth (2021) 68 Cal.App.5th 801, 817-818 &fn. 4 (Bharth).)
c. Standard of Review
"When, as here, there are no disputed facts, our review of the court's determination that its mask order did not violate [the defendant's] rights under the confrontation clause is de novo." (People v. Alvarez (2022) 75 Cal.App.5th 28, 36 (Alvarez).)" 'We review de novo a claim under the confrontation clause that involves mixed questions of law and fact. [Citation.] Under this standard, we defer to the trial court's determination of "the historical facts" . . . but not the court's "application of [the] objective, constitutionally based legal test to [those] historical facts." '" (Bharth, supra, 68 Cal.App.5th at p. 813.)
d. Dr. Josselson's Testimony
We begin by dispensing with Mendoza's challenge to Dr. Josselson's masked testimony. Mendoza, after conferring with counsel, expressly waived any such challenge. Mendoza, through counsel, then confirmed that waiver as to Dr. Josselson "in particular." When, shortly thereafter, the court referred to the parties' agreement that there would be no challenge to Dr. Josselson's masking, Mendoza did not object or attempt to correct the court's understanding.
In her reply brief, Mendoza suggests, without factual support or citation, that the issue is one of forfeiture-that is, that trial counsel merely failed to raise the issue. That is not true. "[T]he terms 'waiver' and 'forfeiture' long have been used interchangeably . . . [but] '[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right" '" (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
After conferring with counsel, Mendoza knowingly relinquished her right to challenge Dr. Josselson's masked testimony; explicitly confirmed that relinquishment; and then implicitly reconfirmed that relinquishment. The issue is therefore waived, not forfeited. Mendoza specifically acknowledged the waiver in her opening brief's recitation of facts, and she has not argued or cited any facts indicating her waiver was ineffective. (Cal. Rules of Court, rule 8.204(a)(1)(C) [appellant bears the burden of citing facts in record to show error below]; cf. People v. Collins (2001) 26 Cal.4th 297, 304-312 [waiver of jury trial right was not voluntary in context of guilty plea].) We will not review the waived claim.
e. Important Interest
With respect to the other witnesses' face shields, Mendoza does not dispute that protecting trial participants from the spread of COVID-19 is an important interest. We agree that this interest is important. (Roman Catholic Diocese of Brooklyn v. Cuomo (2020) 141 S.Ct. 63, 67 ["Stemming the spread of COVID-19 is unquestionably a compelling interest . . ."]; Alvarez, supra, 75 Cal.App.5th at p. 36 [masking requirement "served an important state interest in protecting the public from a contagious, and too often, lethal, disease"]; People v. Coulthard (2023) 90 Cal.App.5th 743, 774 [pandemic conditions in August to September 2021 were adequate justification, under Craig, to allow witness in criminal trial to testify remotely].)
f. Necessary to Achieve that Interest
The next question is whether the face shields were necessary to serve the important interest of limiting the spread of COVID-19. Our analysis is informed by the three published California cases that have examined the impact of pandemic-era masking on defendants' confrontation rights. (See Alvarez, supra, 75 Cal.App.5th at pp. 34-39; Lopez, supra, 75 Cal.App.5th at pp. 232-236; People v. Edwards (2022) 76 Cal.App.5th 523, 525-527 (Edwards).)
Initially, we note that the trial courts in Alvarez, Lopez, and Edwards all required safety protocols more burdensome on the defendants' rights than those here: All individuals in the courtroom, including testifying witnesses, were required to wear masks covering their noses and mouths. (Alvarez, supra, 75 Cal.App.5th at p. 31; Lopez, supra, 75 Cal.App.5th at p. 230; Edwards, supra, 76 Cal.App.5th at p. 526.) In each case, however, the courts concluded that the measures were necessary to reduce the risk of transmitting COVID-19. (Alvarez, 75 Cal.App.5th at pp. 36-37; Lopez, 75 Cal.App.5th at p. 234; Edwards, 76 Cal.App.5th at pp. 526-527.) Here, by contrast, testifying witnesses wore transparent face shields, which allowed the jurors, Mendoza, and counsel to observe the witnesses' faces during their testimony. We agree with the courts in Alvarez, Lopez, and Edwards that the safety protocols it adopted were necessary to reduce the risk of viral transmission, both inside and outside the courtroom.
Mendoza argues that the trial court could have continued the trial, presumably to a time when the risk of viral transmission was lower and face shields were not necessary. That argument ignores the fact that the trial court had already delayed the trial at Mendoza's request from January to July 2021. Nothing in the record suggests Mendoza requested a further continuance. (See Lopez, supra, 75 Cal.App.5th at p. 234.) And nothing in the record indicates that a further delay would reduce the risk to trial participants and those with whom they interacted outside the courtroom, particularly given the "unpredictable" course of the pandemic to that date. (Edwards, supra, 76 Cal.App.5th at p. 527; United States v. Trimarco (E.D.N.Y. Sept. 1, 2020, No. 17-CR-583) 2020 U.S.Dist. Lexis 159180, at p. *21 (Trimarco) ["Without a clear end date to the pandemic, the Court cannot simply delay justice indefinitely, as Defendant would prefer"].) While Mendoza acknowledges that the trial court also limited the number of people in the courtroom, she points to no record evidence suggesting that trial participants could have been better socially distanced or that other options to reduce the risk of viral transmission were available. (Lopez, at pp. 234-235.) Not only are these arguments forfeited, but they are also pure conjecture.
In short, requiring witnesses to wear face shields was necessary to reduce the spread of COVID-19. Mendoza has not shown otherwise.
g. Reliability of Witness Testimony
"Determining '[w]hether the reliability of the testimony is otherwise assured turns upon the extent to which the proceedings respect the four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.'" (United States v. de Jesus-Castaneda, supra, 705 F.3d at p. 1120.) While all of the witnesses were physically present in the courtroom and testified under oath, Mendoza contends that the reliability of their testimony could not be assured because the witnesses' face shields obscured their demeanors and impeded cross-examination.
We agree with Alvarez, Lopez, and Edwards that the trial court's COVID-19 safety protocols minimally impacted trial participants' ability to perceive the witnesses' demeanor and counsel's ability to cross-examine them effectively. (Alvarez, supra, 75 Cal.App.5th at pp. 38-39; Lopez, supra, 75 Cal.App.5th at p. 234; Edwards, supra, 76 Cal.App.5th at p. 527.) And we emphasize that the witnesses' faces here were even less obscured than those in Alvarez, Lopez, and Edwards. Mendoza has identified no specific way in which the shields obscured the witnesses' faces and demeanors. Instead, she relies on generalities, suggesting the shields might have impacted cross-examination or a clear view of the witnesses. To the extent we may suppose there was occasional glare on the face shields, some portion of the shields blocked some peripheral part of the witnesses' faces, or the shields in some other way obscured the witnesses' faces, any such theoretical impact would be minimal and would not meaningfully undermine the other procedural protections in place to ensure the reliability of their testimony.
Mendoza has not shown that the face shields rendered the witnesses' testimony unreliable.
2. Mendoza's Right to an Impartial Jury Trial
Mendoza contends that the jurors' masks impermissibly interfered with jury selection, and that the jurors' masks, along with her counsel's and her own face covering (the record is silent about whether she availed herself of the option to wear a face shield instead of a mask), otherwise precluded an impartial jury trial. In support of her argument, she cites cases where defendants were either physically not present during jury selection (see Lewis v. United States (1892) 146 U.S. 370 (Lewis)), or were severely impaired during trial due to the administration of medications (Riggins v. Nevada (1992) 504 U.S. 127; People v. Gurule (2002) 28 Cal.4th 557, 598 &fn. 8). She argues that because she was not able to view jurors' faces during jury selection and trial, she could not evaluate their impressions, prejudices, and physical and emotional reactions to questioning, and therefore could not "form a sincere, honest" opinion of the jury. She also states that without being able to view jurors' faces, counsel could not effectively exercise challenges to prospective jurors. She argues that jury selection was particularly important here because she faced a sentence of life in prison without the possibility of parole.
Both the federal and state constitutions generally protect a criminal defendant's right to be present at trial, including during jury selection. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15 ["The defendant in a criminal cause has the right . . . to be personally present with counsel . . ."]; see Lewis, supra, 146 U.S. at p. 376.) That right is not, however, absolute. (Illinois v. Allen (1970) 397 U.S. 337, 342 [overruling Lewis insofar as it held that a defendant's right to be present at trial is absolute].)
Although neither party has identified the operative standard to review Mendoza's claim, we conclude that for the same reasons the trial court acted within its authority to require witnesses to wear face shields, it was permissible to require all trial participants-except, of course, testifying witnesses-to wear masks covering their noses and mouths. To begin with, a trial court's inherent authority gives it "broad discretion to control courtroom proceedings in a manner directed toward promoting the safety of witnesses" and other trial participants. (People v. Pena (2012) 207 Cal.App.4th 944, 949.)
The courts that have considered the specific issue raised here have uniformly ruled that reasonable safety precautions that may impair some minor aspect of the jury trial right fall squarely within a trial court's discretion. (See, e.g., United States v. Thompson (D.N.M. 2021) 543 F.Supp.3d 1156, 1164 ["Unlike with the Confrontation Clause issue with masked witnesses, the Court is aware of no authority, nor has [defendant] cited any, holding that the Sixth Amendment right to an impartial jury . . . demand[s] that the defendant have unimpeded visual access to prospective jurors' facial expressions during jury selection. [Citation.] .... [Defendant]'s ability to ask questions during voir dire and to see the upper half of prospective jurors' faces is enough to satisfy his constitutional rights during jury selection, at least during an ongoing [] global pandemic"]; accord United States v. Tagliaferro (S.D.N.Y. 2021) 531 F.Supp.3d 844, 851; United States v. Crittenden (M.D. Ga. Aug. 21, 2020, No. 4:20-CR-7) 2020 U.S.Dist. Lexis 151950, at pp. *22-*24 (Crittenden).) Indeed," [a]lthough a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.'" (People v. Capers (2019) 7 Cal.5th 989, 1017.)
In this case, any impact on Mendoza's jury trial right was minimal; viewing jurors' noses and mouths is not essential to evaluating their demeanor. (United States v. Thompson, 543 F.Supp.3d at p. 1164; United States v. Tagliaferro, supra, 531 F.Supp.3d at p. 851; Crittenden, supra, 2020 U.S.Dist. Lexis 151950, at p. *23.) Jurors completed written questionnaires that provided information for voir dire. (See Crittenden, at pp. *23-*24; Trimarco, supra, 2020 U.S.Dist. Lexis 159180, at p. *16.) During voir dire, much of the jurors' faces were visible, including their eyes, the tops of their cheeks, and their foreheads, as were at least some of their facial expressions. There is no evidence that masks obscured jurors' posture and body language, their answers to oral questions, or any meaningful pauses, intonations, changes in volume or speed, or other variations in their speech during jury selection. (See Crittenden, at pp. *20-*21, *23.)
The same reasoning applies with respect to Mendoza and her counsel's ability to observe jurors during the trial, and jurors' reciprocal ability to observe Mendoza and her counsel. The Sixth Amendment does not guarantee that each trial participant be able to view and assess every aspect of other trial participants' demeanor throughout trial. (Crittenden, supra, 2020 U.S.Dist. Lexis 151950, at pp. *22-*24; Trimarco, supra, 2020 U.S.Dist. Lexis, at pp. *15-*16; cf. People v. Kocontes (2022) 86 Cal.App.5th 787, 879-880 [social distancing only during defendant's presentation of his defense, requiring jurors to sit between 10 and 45 feet away from witnesses and at times interfering with jurors' ability to see and hear witnesses, did not render trial fundamentally unfair]; Bharth, supra, 68 Cal.App.5th at pp. 818-819 [finding no confrontation clause violation where testifying witness looked down and to the side; turned her chair sideways; and allowed her hair and hand to cover her face at times during testimony].)
Mendoza argues that the trial court should have allowed jurors to wear face shields instead of masks. But she did not make this request at trial. Even if she had, it was within the court's discretion to decide that it was not essential for jurors' faces to be fully visible, in contrast to testifying witnesses', with respect to whom Mendoza had a right to "face-to-face" confrontation. (Cf. People v. Pena, supra, 207 Cal.App.4th at p. 949.) If anything, the court's decision to require testifying witnesses to wear face shields-while other trial participants wore masks-shows that the court was very carefully balancing the risk of viral transmission against Mendoza's rights. (Cf. ibid.)
Mendoza also argues that the trial court should have made specific findings, as in Riggins, as to why it was necessary for her, specifically, to wear a mask. She did not make this argument in the trial court, perhaps because the court allowed her to choose whether to wear a mask or a face shield. In any event, the court's conclusions regarding the need to protect all trial participants from the risk of COVID-19 transmission apply equally to Mendoza. And as noted above, Mendoza has cited no authority requiring jurors to have a completely unobstructed view of her face at trial.
Mendoza's rights to an impartial jury were not violated.
3. Structural Error and Prejudice
Because we find no error in the trial court's orders requiring trial participants to wear face shields and masks, we need not consider whether to review its rulings for harmless or structural error. (See Coy, supra, 487 U.S. at pp. 1021-1022 [reviewing court should consider whether a confrontation clause violation was harmless beyond a reasonable doubt within the meaning of Chapman v. California (1967) 386 U.S. 18, 24; accord Arredondo, supra, 8 Cal.5th at pp. 709-710; cf. Neder v. United States (1999) 527 U.S. 1, 8 ["[E]rror [is] 'structural,' and thus subject to automatic reversal, only in a 'very limited class of cases' "].) Similarly, having concluded "that [defendant's] claims of error lack merit, we in turn reject his claim of cumulative prejudice resulting from the asserted errors. There is no prejudicial error to cumulate." (People v. Coulthard, supra, 90 Cal.App.5th at p. 775.) 4. Prosecutorial Misconduct
Mendoza next argues that the prosecutor engaged in prejudicial misconduct by asking her whether she and Contreras had planned for her to fabricate testimony blaming him for forcing her to participate in the crime, and whether she was "aware" that he admitted to such a plan in testimony he gave in a child custody proceeding.
a. Factual Background
At trial, the prosecution sought to prove that Mendoza was a direct perpetrator and/or that she aided and abetted the burglary and robbery, and that she was a major participant in the homicide of Mahmood. Mendoza argued that because she acted under duress and due to her fear of Contreras, she did not act of her own free will and could not have formed the intent required to convict her.
At the start of trial, the court orally instructed the jurors as to general trial procedures. The instructions included the admonition that "[n]othing the attorneys say is evidence.... Their questions are not evidence...."
Later, the prosecutor questioned Mendoza about Contreras's testimony in a separate judicial proceeding concerning custody of his children with another woman. The prosecutor's questions suggested Mendoza and Contreras had formulated a plan for her trial testimony. The prosecutor asked:
"Q. Actually, the same week that you were referring to a few moments ago, talking about getting an article sent to you, Mr. Contreras had stood up in court a few days before that and had been confronted with that article, correct? ....
"The witness: I don't know. ....
"[Prosecutor]. Q. You were aware that Mr. Contreras had a court custody case a few days before when you are saying you got this text message, right? ....
"The Witness: I didn't know about the child custody, but I don't know about his court dates.
"[Prosecutor]. Q. For those court dates, that's when he's been served before at the [Galt] address, right?
"A. No.
"Q. So, you were aware that he had a hearing on that Thursday, [August 5th], for that custody issue unrelated to your child, correct?
"A. That day, yes. ....
"[Prosecutor]. Q. So you were aware that he stood up in court and explained that he was aware of your child, correct?
"A. I wasn't there. I don't know what he did.
"Q. But you talked to Mr. Contreras about this?
"A. We didn't talk about anything.
"Q. So, did you and Mr. Contreras have a plan of how you were going to handle the blaming-him testimony that you expected to give in this trial? ....
"The Witness: No, I would never. ....
"[Prosecutor]. Q. Are you aware that Mr. Contreras stood up in court on that Thursday, [August 5th], and explained that this was part of the plan and that the two of you are about to get married?
"A. No. No."
Defense counsel moved for a mistrial, arguing that the questioning was excessively prejudicial and the prosecutor did not have a good faith basis for the questions. The prosecutor responded that she did have a good faith basis and that an individual at the proceeding reported to her that Contreras testified that Mendoza's testimony in this case "was just part of their plan to be able to move forward to get married." The prosecutor stated she would submit certified court documents from that proceeding to prove Contreras's statements. All agreed that Mendoza was not present at the child custody proceedings.
The court denied the motion for a mistrial, noting that the jurors had already received instructions that the attorneys' statements were not evidence, and that she would further admonish them to disregard the specific exchange regarding Contreras. The court believed the prosecutor had a good faith basis for the questioning and invited the prosecutor to call Contreras to testify. The court then instructed the jury: "I want to remind you-this is an instruction that I already read-nothing the lawyers say is evidence. Only the witnesses' answers are evidence. The lawyers' questions are helpful, if they help you understand the witnesses' answers. I am going to ask you to disregard any statements and questions that relate to the proceedings in a custody hearing that the witness said she did not attend."
During a break in testimony, Mendoza's counsel renewed the mistrial motion, arguing that the bell could not be "unrung" with the jury and that if the prosecution did not intend to call any witnesses to prove Contreras's statement, there was no good faith basis for the questions. Defense counsel later repeated objections to the testimony. The defense had conducted its own investigation and concluded that the child custody proceedings occurred, but were confidential. The prosecutor reaffirmed her good faith basis for asking Mendoza the questions, citing information she received from the mother who was present in the child custody proceedings. The prosecutor explained she would not, after all, be able to call a witness to those proceedings to testify in Mendoza's trial, and agreed that due to the short turnaround time, she was not able to produce the court documents as she had intended. The court once again agreed that the prosecution had a good faith basis for the questions. The prosecution did not call Contreras to testify, offer documents regarding his testimony, or otherwise refer to or attempt to prove his statements.
Before sending them to deliberate, the court again instructed the jury that the lawyers' statements were not evidence. The court admonished the jurors of the same twice during the prosecution's closing argument. The written jury instructions contained the same admonition.
b. Legal Standard
"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." (People v. Morales (2001) 25 Cal.4th 34, 44.) Prosecutorial conduct "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 . . . the jury." (Ibid.) When the defendant objects to statements the prosecutor made before the jury, the question is whether there is a reasonable likelihood the jury applied the prosecutor's statements in an improper manner. (People v. Jackson (2016) 1 Cal.5th 269, 349; People v. Gurule, supra, 28 Cal.4th at p. 657.) "[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)
Mendoza points to two potential prosecutorial errors. First, she argues that the prosecutor questioned Mendoza without a good faith basis to believe she was aware that Contreras made the statements at issue and that Mendoza could testify to them. Second, she argues that any evidence the prosecutor would attempt to use to prove the statements would be inadmissible hearsay. "[A] prosecutor commits misconduct by asking 'a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means.'" (People v. Earp (1999) 20 Cal.4th 826, 859-860, quoting People v. Price (1991) 1 Cal.4th 324, 481.)
c. The Prosecutor's Error
The record indicates that the prosecutor had a good faith basis to believe Contreras made the statements in the child custody proceeding. But the record does not show that the prosecutor had a good faith belief that Mendoza knew about Contreras's statements and therefore that she could testify about them. (See People v. Earp, supra, 20 Cal.4th at pp. 859-860.) Mendoza was not present at the child custody proceedings and testified that she had not talked with Contreras and did not know what happened at the proceedings. The prosecutor, therefore, did not have a reasonable basis to anticipate that Mendoza would be able to answer her questions and confirm that Contreras stated in those proceedings that he and Mendoza had formed a plan for her to blame him for the crimes. (See ibid.)
As to the second question-whether any evidence the prosecutor would have used to prove the statements was admissible-the Attorney General concedes there was no clear solution to the hearsay problem, as it did not appear the prosecutor could establish the elements of the statement-against-penal-interest hearsay exception. We conclude, however, that the prosecutor's relatively limited error followed by prompt instructions from the court did not rise to the level of a violation of Mendoza's federal due process rights. (See People v. Morales, supra, 25 Cal.4th at p. 44; cf. People v. Trinh (2014) 59 Cal.4th 216, 249 (Trinh) [prosecutor's repeated posing of questions the trial court had already ruled were improper did not deny defendant due process].) Given the prosecutor's error, we consider next whether the prosecutor's questions were prejudicial.
d. Prejudice
To evaluate prejudice under the state law standard, we ask whether it was reasonably probable that Mendoza would have achieved a more favorable result had the error not occurred. (Trinh, supra, 49 Cal.4th at p. 249.) Mendoza has not shown that the prosecutor's error was prejudicial.
First, Mendoza has identified only one relatively limited instance of prosecutorial error, rather than a series of errors or a pattern by the prosecution of repeating the same error notwithstanding the court's rulings to the contrary. (See People v. Bonin (1988) 46 Cal.3d 659, 690, overruled on other grounds by Hill, supra, 17 Cal.4th at p. 823, fn. 1 [isolated instance of prosecutor eliciting from witness inadmissible evidence of defendant's confession to other murders was not prejudicial in context of "lengthy and otherwise well-conducted trial"]; cf. Hill, 17 Cal.4th at p. 818 ["constant and egregious" pattern of prosecutorial misconduct was prejudicial]; People v. Earp, supra, 20 Cal.4th at p. 865 [no prejudice notwithstanding multiple instances of error].)
Second, the trial court promptly and specifically instructed the jury not to consider the prosecutor's statements about Contreras's statements. Before opening arguments, during closing argument, and before sending the jury to deliberate, the court instructed the jurors that the lawyers' statements were not evidence. Jurors received the same instructions in writing. Such admonitions are generally sufficient to cure any prejudice from prosecutorial error. (See People v. Morales, supra, 25 Cal.4th at pp. 47-48 [instructions cured any prosecutorial error]; People v. Kocontes, supra, 86 Cal.App.5th 787, 850 [trial court's repeated admonitions throughout trial were sufficient to dispel any prejudice]; People v. Prysock (1982) 127 Cal.App.3d 972, 997-998 [prompt curative instruction was sufficient to dispel any prosecutorial misconduct].) The isolated nature of the error and the court's prompt and repeated admonitions were sufficient to dispel the prosecutor's error here. (People v. Young (2005) 34 Cal.4th 1149, 1196 [isolated, non-deceptive prosecutorial statements followed shortly thereafter with instruction were not prejudicial].)
Third, given the evidence in the record, we do not see a likelihood that the verdict would have been different in the absence of the prosecutor's questions. (Cf. People v. Wagner (1975) 13 Cal.3d 612, 621; People v. Lambright (1964) 61 Cal.2d 482, 486 [inadmissible testimony risked an inerasable impression on jury, where it addressed "main issue" in case, of which scant evidence was adduced at trial].) Mendoza did not dispute that she was present at the scene of the burglary, robbery, and murder, or that she facilitated the crimes. Instead, she relied on a duress defense and further argued that she did not have the requisite mental state because she acted out of fear of Contreras. The prosecutor's questions regarding Contreras's statements implied that Mendoza was following a plan with Contreras and falsely testifying that Contreras coerced her into committing the crimes. But even assuming all of Mendoza's testimony was truthful, the bulk of the evidence did not support her asserted defenses, which were the only material disputed issues.
Although there was evidence that Contreras asked Mendoza to participate in the robbery, and that she at times was afraid of him, the only concrete threats to which she testified came after the crimes were complete. The remaining evidence did not show that any coercion rose to the level of duress. Nor did Mendoza provide unambiguous testimony tending to show that she failed to form the intent required to commit the crimes. Martinez testified that Mendoza told her that she had set up the robbery. Mendoza had indeed planned to meet with Mahmood, and she called him after arriving at his home, knocked on his door, and entered with the second woman. At the time, she knew that Contreras had a gun and, it is reasonable to infer, that there was a substantial risk he would use it. Nevertheless, despite having opportunities to do so, Mendoza testified that she did not alert Mahmood to any danger or otherwise attempt to prevent or interfere with the commission of the crimes. Even relying on her own testimony, the evidence tended to show that she knew the crimes would occur and subjectively appreciated the risk of harm to Mahmood, but nevertheless facilitated them.
Ample evidence of Mendoza's longstanding, voluntary, and cooperative relationship with Contreras also substantially undermined her defenses. Not long after Mahmood's murder, Mendoza planned another very similar robbery with Contreras, in which the victim was Mendoza's ex-boyfriend. Mendoza maintained a relationship with Contreras for at least a year after the crimes; consistently referred to him as her boyfriend; developed romantic feelings for him and became pregnant with his child; left her two children in Contreras's care at her home when she was arrested; continued to communicate regularly with Contreras while she was in jail after her second arrest; dropped him off at the airport during the trial, driving a car registered to him; and at the time of the trial lived in a home owned by Contreras's employer, at an address Contreras used to receive mail related to his utilities, with Contreras on the rental agreement.
The overwhelming evidence of Mendoza's voluntary participation in the crimes substantially outweighed any evidence indicating that she acted under duress or otherwise did not have a sufficiently culpable mental state to support the conviction. (See People v. Shazier (2014) 60 Cal.4th 109, 150-151 [any prejudice arising from prosecutor's misconduct was not sufficient to support reversal, where misconduct was "relatively isolated"; the court admonished the jury not to consider the prosecutor's statements as evidence; and the evidence supporting the verdict was "very strong"].)
In sum, we conclude that "the consequences of the improper questions fell far short of 'infect[ing] the trial with such unfairness as to render the subsequent conviction a denial of due process' [citation], and there is no reasonable probability they influenced the verdict.'" (Trinh, supra,59 Cal.4th at p. 249.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J., STREETER, J.