Opinion
A147751
07-10-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH TAYLOR, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 223770)
Based on two incidents, a jury convicted Joseph Taylor of felony assault with intent to commit forcible sodomy or forcible oral copulation (Pen. Code, § 220, subd. (a)(1)), felony false imprisonment (§ 236), misdemeanor false imprisonment (§ 236), and two counts of misdemeanor sexual battery (§ 243.4, subd. (e)(1)). The jury could not reach a verdict on count 4, a second felony count of assault with intent to commit forcible sodomy or forcible oral copulation (§ 220, subd. (a)(1)), and the court declared a mistrial as to count 4. The court sentenced Taylor to 17 years in state prison and one year in county jail to run consecutive to his state prison sentence.
All undesignated statutory references are to the Penal Code.
Taylor appeals. While acknowledging that trial counsel failed to make a motion for judgment of acquittal or assert insufficiency of the evidence as to count 4, Taylor contends the evidence was insufficient to support the charge in count 4 as a matter of law, barring retrial. Taylor also argues the court abused its discretion by denying his motion for a mistrial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from two separate incidents involving Taylor and victims Alexander E. and Morgan S. Based on a March 2014 incident involving Alexander E., the prosecution charged Taylor with assault with intent to commit forcible sodomy or forcible oral copulation (§ 220, subd. (a)(1)), felony false imprisonment (§ 236), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). Based on a June 2013 incident involving Morgan S., the prosecution charged Taylor with the same three offenses.
We refer to Taylor's victims by first name and last initial to protect their privacy. (Cal. Rules of Court, rule 8.90(b)(4).)
A. Pretrial Rulings on the Admissibility of Evidence
Before trial, the prosecution moved in limine to admit evidence of a prior incident to prove Taylor's propensity to commit the charged offenses, or to prove Taylor's intent, motive, and common plan. The prior incident involved Justice S., who was 13 years old in 2009. Based on the incident, Taylor pled no contest to contributing to the delinquency of a minor. (§ 272.) At the time of their encounters with Taylor, Alexander E. was 26 years old, and Morgan S. was 18. Taylor opposed admission of evidence of the prior incident involving Justice S., arguing it could suggest to the jury Taylor engaged in child molestation or was a pedophile, and "[a]ny suggestion that Taylor preys on children will serve to poison the jury against him."
At the hearing on the motion, the prosecution argued the 2009 incident was similar to the incidents giving rise to the charged offenses: Taylor's "target victim" in each case was "straight, white, male, young and slender." The prosecution viewed the youthfulness of Justice S. as relevant to showing a pattern. The court encouraged both sides to work out a stipulation to allow Justice S. to testify without disclosing his age. They agreed to tell the jury Justice S. was 18 years old at the time of the 2009 incident.
Later, the court addressed the issue a second time when Taylor learned the prosecution intended to introduce evidence of Justice S.'s height and weight in 2009, which Taylor worried might indicate he was a minor at the time of the incident. The prosecution argued the evidence was relevant to show Taylor's propensity to go after men much younger than himself. The court was concerned about Taylor "being viewed as a pedophile or somebody who preys on children." The court acknowledged it would be "grossly, grossly unfair and prejudicial to" Taylor if the jury were to view him as a pedophile. The court ruled Justice S. could testify, but evidence of his age, height, or weight in 2009 was excluded.
B. Prosecution Evidence
1. Alexander E.
In March 2014, Alexander E. was in the Tenderloin district of San Francisco attempting to purchase marijuana. At about 7:30 p.m., Taylor approached Alexander E., and told him he had marijuana. Alexander E. went with Taylor to Taylor's room in a single room occupancy hotel ("SRO").
In the room, pornography was visible on Taylor's laptop computer. Taylor told Alexander E. he loved " 'that straight white dick.' " Taylor said " 'I'm like a woman inside.' " Taylor kept asking Alexander E. to take out his penis so that Taylor could suck it. Alexander E. said he was not comfortable with that, and wanted to leave. When Alexander E. moved towards the door, Taylor got between him and the door. Taylor pushed Alexander E. back from the door several times. Alexander E. realized he was not as strong as Taylor, and felt terrified. Alexander E. begged Taylor to let him leave.
Taylor took off his shorts, took out his penis, and began rubbing himself. Taylor rubbed vaseline on his anus. Taylor said his friends would be bringing the marijuana. Taylor told Alexander E. if he was not sucking Alexander E.'s penis when the people came down with the drugs, they would beat them both up and rape Alexander E. Taylor repeatedly reached for, and groped at, Alexander E.'s penis. Taylor continued to block Alexander E. from leaving the room.
Alexander E. was crying, screaming, and begging to leave. At one point, Alexander E. thought Taylor was going to punch him. Alexander E. offered Taylor $120 if Taylor would let him leave. Eventually, Alexander E. pretended to go along with Taylor's demands, and moved closer to Taylor. Alexander E. managed to push Taylor to the floor, open the door, and he ran home as fast as he could. Alexander E. went to the police station the next day. He estimated the incident lasted between 30 minutes and one hour. Police went to Taylor's room and arrested him.
2. Morgan S.
In June 2013, Morgan S. was in the Tenderloin district of San Francisco. Morgan S., who was 18 years old at the time, was a heroin user, and homeless. At about 3:00 p.m., Taylor approached Morgan S., asked if he would like to smoke some marijuana, and said he had marijuana in his room. Morgan S. had not used heroin that day. Morgan S. went with Taylor to Taylor's room in an SRO, and Taylor locked the door.
Taylor told Morgan S. to sit on the bed, and Taylor asked if he could touch and "play" with Morgan S. When Morgan S. refused, Taylor offered him $100. Taylor offered Morgan S. methamphetamine, and asked if it made him "horny." Taylor showed Morgan S. a picture on his cell phone of a naked African American man, and Morgan S. believed it was Taylor. It was clear to Morgan S. that Taylor wanted to have sexual contact with him.
Taylor took off his shorts and underwear. Morgan S. thought he was just changing, but then Taylor sat on Morgan S.'s lap. Taylor was wearing a shirt, but nothing else. Morgan S. was able to slip out from under Taylor. Taylor touched Morgan S. over his shorts in the area of his genitals. Morgan S. backed up to avoid Taylor grabbing him. Taylor tried to pull down Morgan S.'s shorts.
Morgan S. told Taylor he had to leave because his aunt was going to pick him up. Morgan S. told Taylor he did not want to see the picture on the cellphone, and he was not gay. Morgan S. was terrified and scared. At the time, Morgan S. was very skinny, and weighed about 110 pounds. Taylor weighed about 200 pounds. Morgan S. began to cry and was begging Taylor to let him go. Morgan S. tried to leave through the door at least four times, but each time Taylor blocked the way. Morgan S. begged Taylor to let him go and offered Taylor $15.
Morgan S. heard someone vacuuming in the hallway, so he began talking loudly, hoping the person would hear him. Morgan S. did not yell or scream. Taylor told Morgan S. to be quiet because Taylor might get in trouble for having someone in his room. Taylor turned on the water faucet to mask Morgan S.'s voice.
While Taylor was at the sink, Morgan S. was able to get to the door, unlock it, and run downstairs. As Morgan S. was leaving, Taylor asked "You're going to come back, right?" Morgan S. said yes. Morgan S. told the people at the front desk that somebody just tried to rape him. They did not respond, and Morgan S. left. Morgan S. went to a homeless shelter and called the police. The incident lasted about 15 minutes. In a taped statement to the police, Taylor denied knowing Morgan S., and denied Morgan S. had been to his room in the SRO.
3. Justice S.
In February 2009, Justice S. and a friend were in San Francisco, close to Market Street and 6th Street. Taylor approached them, and offered marijuana. Taylor told Justice S. he would pay $800 to watch Justice S. having sex with a girl. Justice S. had no intention of having sex, but intended to take or steal Taylor's money. Taylor said he liked to watch younger guys have sex with younger females.
Justice S. and his friend went with Taylor to his room in an SRO. The desk clerk tried to stop Justice S. and his friend from entering the hotel, but they ran up the stairs. Taylor asked if Justice S.'s friend could leave, and Justice S. told his friend to wait outside. Taylor asked Justice S. what kind of girls he liked, and if he liked guys. Taylor was smoking methamphetamine, and Justice S. was smoking marijuana.
After about 20 or 30 minutes, Taylor tried to grab Justice S.'s leg. Justice S. thought Taylor was trying to touch his penis. Justice S. began to doubt a girl was coming to the room. Although he did not feel afraid or scared, Justice S. felt uncomfortable and wondered if he should steal Taylor's money, or just leave. Justice S. realized Taylor was "just some kind of 'phile [verbatim] or something." Shortly afterwards, the police broke down the door. Justice S. did not remember telling the officers Taylor tried to rape him.
Sergeant John Tack was dispatched to the SRO around 10:30 p.m. because after hours visitors were not permitted. The police found one of the two young men sitting on the staircase. Sergeant Tack and his partner knocked on Taylor's door and identified themselves as police. A male voice said he was in bed and needed time to answer the door. The police knocked again, and the person said he was naked and needed to get dressed. The police gained entry and saw a white male sitting on a chair and a black male standing. Both men were clothed. The white male blurted out Taylor tried to rape him. Sergeant Tack did not conduct a follow-up interview with Justice S., but juvenile inspectors did.
C. Defense Evidence
Taylor worked in the Financial District as an office assistant. He moved to the Tenderloin in 2003. Taylor was on disability. Taylor used methamphetamine, but did not consider himself an addict. Taylor is gay and has experienced discrimination. Taylor feels like a woman in a man's body. Taylor identified as a "bottom," which he described as someone who likes to be anally penetrated.
When Taylor asked Morgan S. if he would like to come to Taylor's room to smoke marijuana, Taylor was hoping to have sex with him. Taylor locked the door because he always does so. Taylor testified he did not intend to block the door. Taylor denied Morgan S. was crying or begging to leave. Taylor asked Morgan S. if he could sit on Morgan S.'s lap. Morgan S. refused, and Taylor denied doing so. Taylor denied touching Morgan S. Taylor testified he told Morgan S. he could leave when the janitor finished vacuuming. Taylor told the police no one had been in his room that day because he was defensive, scared and shocked.
Taylor testified Alexander E. asked Taylor where he could get Xanax. Taylor was interested in having sex with Alexander E. Taylor took off his shorts, shoes and socks, and tried to make Alexander E. feel comfortable. Taylor denied Alexander E. asked to leave, but acknowledged Alexander E. started crying. Taylor testified he told Alexander E. they did not have to have sex. Taylor claimed Alexander E. threw him to the floor, and left the room. Taylor denied holding Alexander E. or Morgan S. against their will or touching their penises.
Taylor claimed he was being flirtatious with Justice S., but was not interested in having sex with him. Instead, Taylor wanted to watch Justice S. have sex with a girl.
D. Verdict, Mistrial as to Count 4, and Sentence
With regard to the incident involving Alexander E., the jury convicted Taylor of felony assault with intent to commit forcible sodomy or forcible oral copulation (§ 220, subd. (a)(1)), felony false imprisonment (§ 236), and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). For the incident involving Morgan S., the jury found Taylor not guilty of felony false imprisonment, but guilty of the lesser-included offense of misdemeanor false imprisonment (§ 236), and guilty of misdemeanor sexual battery (§ 243.4, subd. (e)(1)).
The jury could not reach a verdict on count 4, which charged Taylor with felony assault with intent to commit forcible sodomy or forcible oral copulation against Morgan S. Initially, the jury was evenly split on count 4. After about 6 ballots, they were still deadlocked 10 to 2. The court polled the jurors, who did not think further deliberations would result in a verdict. The court discharged the jury, declared a mistrial as to count 4, and set it for "possible retrial tomorrow."
At the sentencing hearing, the court sentenced Taylor to a prison term of 18 years. However, the sentencing minutes and abstract of judgment indicate the court sentenced Taylor to 17 years in prison, and one year in county jail to run consecutive to his prison sentence. At the end of the sentencing hearing, and "in light of . . . [the] sentencing," the prosecution moved to dismiss count 4. The court granted the request.
DISCUSSION
I.
On Appeal, Taylor Cannot Challenge the Sufficiency of the Evidence Supporting the
Dismissed Charge
In an attempt to establish Taylor may not be retried for the offense in count 4, sexual assault against Morgan S. in violation of section 220, subdivision (a)(1), Taylor argues there was insufficient evidence to support the count 4 charge. Taylor argues the court should have entered "a judgment of acquittal for insufficiency of the evidence [because it] bars retrial under the double jeopardy clause of the Fifth Amendment." The Attorney General responds Taylor cannot appeal the dismissal of count 4, double jeopardy does not bar retrial, and, in any event, there was sufficient evidence to support the charge. We agree with the Attorney General's first and second arguments. Accordingly, we do not consider whether the evidence was sufficient to support count 4.
"The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute." (People v. Loper (2015) 60 Cal.4th 1155, 1159; People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) A criminal appeal may be taken by the defendant from "a final judgment of conviction," (§ 1237, subd. (a)) or from "any order made after judgment, affecting the substantial rights" of the party (§ 1237, subd. (b)).
Here, there was no judgment of conviction as to count 4, and we cannot construe the court's dismissal of count 4 as an order affecting Taylor's substantial rights. In People v. Stokes (1894) 102 Cal. 501, the California Supreme Court determined "a defendant is not entitled to an appeal from an order dismissing a prosecution which is pending against him. . . . This defendant was not injured by the order of the court dismissing the prosecution which resulted in his discharge." (Id. at pp. 501-502.) Similarly here, the dismissal of count 4 did not injure Taylor. Stokes is controlling authority, and it bars Taylor's appeal from the court's order dismissing count 4. (People v. Gwillim (1990) 223 Cal.App.3d 1254, 1265 [defendant's cross-appeal from order of dismissal was "unauthorized"].)
In his reply brief, Taylor argues "this court has the authority under California law to decide that the prosecution did not produce sufficient evidence to sustain a conviction on Count Four" and "the dismissal should have been granted on that ground." We disagree we have the authority to do so. In People v. Hatch (2000) 22 Cal.4th 260, the California Supreme Court determined a court can acquit for legal insufficiency of the evidence pursuant to section 1385, but where the record does not indicate an intent to dismiss for this reason, an order of dismissal should not be construed as an acquittal. (Id. at pp. 268-271.) Here, the prosecution moved to dismiss count 4 "in light of . . . [the] sentencing" for Taylor's other offenses, and the court granted the request. We cannot construe the order of dismissal as an acquittal.
Alternatively, Taylor argues that if the dismissal of count 4 was based on insufficient evidence, then there would be a double jeopardy bar to retrial for the offense. " 'The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense.' " (People v. Anderson (2009) 47 Cal.4th 92, 103-104.) But here, as the Attorney General points out, Taylor was not convicted, acquitted, or punished for the offense charged in count 4. Accordingly, retrial is not barred.
Taylor argues the court should have dismissed count 4 based on insufficiency of the evidence. But, as Taylor concedes, he "did not make a motion for judgment of acquittal under section 1118.1, nor did he argue that the evidence was insufficient at the time the prosecution moved to dismiss the charge." Nevertheless, Taylor contends "sufficiency arguments are never waived." But the cases Taylor cites are inapposite because, in each of them, the sufficiency of the evidence challenge was to an order or finding adverse to the defendant. (People v. Rodriguez (2004) 122 Cal.App.4th 121, 128-129 [challenging sufficiency of the evidence to support trial court's findings that prior felony convictions were serious felonies under California's three strikes law]; People v. Butler (2003) 31 Cal.4th 1119, 1126 [challenging sufficiency of the evidence to support order requiring defendant to submit to blood test]; People v. Viray (2005) 134 Cal.App.4th 1186, 1190 [reversing, for want of substantial evidence, an order requiring defendant to reimburse public defender's office].) Here, the court's dismissal of count 4 did not injure Taylor. Taylor cites no authority to support his contention he can challenge the sufficiency of the evidence used to support a dismissed charge. We conclude we cannot consider Taylor's sufficiency argument on appeal.
Taylor cites People v. Neal (1993) 19 Cal.App.4th 1114. The case does not assist Taylor. In Neal, the court determined the defendant waived a challenge by failing to object below. (Id. at p. 1117-1118.) Taylor also points to section 1259 of the Penal Code, but we fail to see how it helps him. It indicates an appellate court's scope of review encompasses "any question of law involved in any ruling, order, instruction, or thing whatsoever said or done at the trial or prior to or after judgment, which thing was said or done after objection made in and considered by the lower court, and which affected the substantial rights of the defendant." (§ 1259.) Taylor did not object to the order of dismissal and it did not affect his substantial rights.
II.
The Court Did Not Err in Denying Taylor's Motion for a Mistrial
At trial, Taylor moved for a mistrial based on statements made by Justice S. and Sergeant Tack. On appeal, he argues the court erred by denying the motion. We are not persuaded.
A. The Testimony, Taylor's Motion for a Mistrial, and the Court's Instructions
During the testimony of Justice S., the following colloquy occurred:
"[Prosecution]: And when he touched you on your leg, where was he trying to touch you? [¶] . . . [¶] . . .
"[Justice S.]: He was obviously going to try to touch my penis, obviously.
"[Prosecution]: Why do you say "obviously"?
"[Justice S.]: Because at that point I started — it just started to become clear like this dude is sick in the head. I started thinking like he's not calling a girl over, like — I mean he's just got me in this room probably like — and so it just kind of clicked, like he's just some kind of 'phile [verbatim] or something.
"[Defense]: I didn't catch the answer.
"[Justice S.]: Excuse me?
"[Defense]: I wasn't able to hear the —
"[Prosecution]: He was just trying to what?
"[Justice S.]: He was just trying to lure me into the room as just a distraction saying he had a girl. He never had a girl probably. He just wanted me and my friend in the room for whatever reason. You can speculate on that."
Sergeant Tack was the police officer who arrested Taylor based on the incident involving Justice S. Toward the end of his testimony, the following exchange occurred:
"[Prosecution]: Did you conduct a follow-up interview with Justice S.?
"[Sgt. Tack]: No, no, I did not. [¶] . . .
"[Prosecution]: Did someone — were you present when someone else conducted a follow-up interview?
"[Sgt. Tack]: We did — I believe juvenile inspectors came out, but we did have inspectors come out to do the follow-up investigation.
"[Prosecution]: And are juvenile inspectors part of the Special Victims Unit and cover all types of witnesses?
"[Sgt. Tack]: (No response.)
"[Prosecution]: They do; is that correct?
"[Sgt. Tack]: They do.
"[Prosecution]: I have no further questions."
When the jury left for its morning break, Taylor stated he would be requesting a mistrial based on Justice S.'s remark Taylor was "some kind of 'phile," and Sergeant Tack's reference to juvenile inspectors. The court did not hear the word "pedophile." The court determined it would tell the jury "that in this incident last described in 2009 there were no juveniles involved." Over defense counsel's objection, the court decided "I think it's prudent to intervene as soon as reasonably possible to clarify this particular point." When the jurors returned to the courtroom, the court instructed "there was no juvenile involved in the 2009 incident . . . ."
Later the same day, Taylor moved for a mistrial. Even though the court did not hear the word "pedophile," it accepted Taylor's offer of proof that a number of witnesses in the courtroom heard the word. The court denied the request for a mistrial, but indicated it was willing to give another curative instruction to "overcom[e] this ''phile' statement." The court stated "it is imperative on my part to do something, and not just sit back and take the chance that some juror may have heard or pieced together what your folks have said." The court did not believe a second curative instruction would be drawing attention to the issue because "it ties in with this interview of Mr. Taylor where there's a discussion about kids." In an interview with the police, Taylor referred to Morgan S. as a "kid."
Five days later, the next time the jury was present, the court gave them the following admonition: "Ladies and gentlemen, last week I did give you an oral admonition on a particular topic, and I've enhanced that admonition somewhat and I've reduced it to writing, and I've marked this admonition as Court Exhibit 102. So I'm going to read it to you and then the document will be in the evidence box, okay? [¶] So it's entitled: Admonition to the Jury. [¶] 'During this trial reference was made to juvenile police inspectors. Also, in certain testimony, words such as "kids" or "girls" have been used. This case does not involve juveniles or minors. Mr. Taylor has not been charged in the present case or any other matter, past or present, with having sexual interaction with minors. You are not to consider or discuss this topic or let it affect your deliberations in this case in any way.' "
B. Applicable Legal Principles
" '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.]' [Citation.] A motion for a mistrial should be granted when ' " 'a [defendant's] chances of receiving a fair trial have been irreparably damaged.' " ' " (People v. Collins (2010) 49 Cal.4th 175, 198.) "Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness's volunteered statement can also provide the basis for a finding of incurable prejudice." (People v. Wharton (1991) 53 Cal.3d 522, 565.) On appeal, "[w]e review a ruling denying a motion for mistrial for abuse of discretion." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1029.)
Cases where prejudice to the defendant from an improperly volunteered statement cannot be cured by an appropriate admonition to the jury tend to be the exception, not the rule. (People v. Allen (1978) 77 Cal.App.3d 924, 935.) They include cases where a codefendant's admission implicates the defendant. (Bruton v. United States (1968) 391 U.S. 123, 136-137; see also People v. Aranda (1965) 63 Cal.2d 518, 526 superseded by constitutional amendment as stated by People v. Fletcher (1996) 13 Cal.4th 451, 465 ["the erroneous admission into evidence of a confession implicating both defendants is not necessarily cured by an instruction that it is to be considered only against the declarant"].) But, in many cases, an instruction to the jury is sufficient to cure the harm. (See People v. Avila (2006) 38 Cal.4th 491, 573-574 (Avila) [improper reference to defendant's recent imprisonment curable by court's instruction not to consider it]; People v. Valdez (2004) 32 Cal.4th 73, 125 ["[t]he isolated reference to [the prison] was not so grave that a curative instruction would not have mitigated any possible prejudice to defendant"]; People v. Dement (2011) 53 Cal.4th 1, 40, overruled on other grounds by People v. Rangel (2016) 62 Cal.4th 1192 [no abuse of discretion in denying mistrial motion where witness's comments were brief and isolated and where court struck the statement, and repeatedly admonished the jury to disregard it].)
C. The Court Did Not Abuse Its Discretion
Here, we find no abuse of discretion in the court's conclusion its two admonitions cured any harm. The court's pretrial deliberations indicated it was sensitive to the prejudice that could occur if the jurors labeled Taylor a pedophile. When Sergeant Tack referred to juvenile inspectors, the court quickly instructed the jury there were no juveniles involved in the 2009 incident.
Taylor complains the jurors must have understood Justice S. was a minor because Sergeant Tack "failed to endorse the prosecutor's assertion that juvenile inspectors interview 'all types of witnesses' until she pointedly led him to agree with her." Taylor also argues the jurors' morning break was approximately one hour long, so when they came back, and the court told them there were no juveniles involved in the 2009 incident, they must have realized Justice S. was a minor at the time of his encounter with Taylor. In effect, then, Taylor would have us presume the jury did not follow the court's instruction there were no juveniles involved in the 2009 incident. But that is not the law. Instead, we presume they did. (Avila, supra, 38 Cal.4th at p. 574.)
In any event, later, based on an assumption some of the jurors also heard Justice S. refer to Taylor as a pedophile, the court expanded on the admonition, telling the jurors the case did not involve minors or juveniles, Taylor had never been charged with having sexual interaction with minors, and the jurors were not to consider or discuss this topic or let it affect their deliberations.
Taylor contends the jury could not follow the instructions because the suggestion he was a pedophile was "uniquely stigmatizing." Taylor relies on social studies indicating pedophiles are "social pariahs," and showing the label "pedophile" is laden with negative connotations such that it could have led the jury to believe Taylor deserved punishment no matter what the evidence showed. However, with regard to the incident involving Morgan S., the jury could not reach a verdict on count 4, and in count 5, the jury found Taylor guilty of the lesser-included offense of misdemeanor false imprisonment. These aspects of the verdict are inconsistent with Taylor's contention some of the jurors were "inclined to believe Mr. Taylor deserved punishment no matter what the evidence showed." (People v. Williams (2009) 170 Cal.App.4th 587, 613 [where jury found gang enhancement allegation not true, this result supported conclusion jury followed instructions not to consider gang evidence to prove defendant had a bad character or was disposed to commit a crime]; People v. Ledesma (2006) 39 Cal.4th 641, 681-684 [witness's volunteered statement defendant had been on death row was not incurably prejudicial].)
Taylor contends the court's curative instructions were ineffective and "exacerbated the harm." We disagree. The court unequivocally told the jury they were not to assume, based on volunteered statements, there were juveniles or minors involved in the case or that Taylor had ever been charged with sexual interaction with minors. Moreover, the court's second admonition gave the jurors direction: "You are not to consider or discuss this topic or let it affect your deliberations in this case in any way."
Taylor contends this second instruction "increased the prejudicial effect" because it suggested Taylor was not convicted based on the incident with Justice S., and some jurors could have concluded Taylor got away with additional sexual assaults against children. Taylor complains "the second instruction failed to give the jury any guidance about what to do with [Justice S.'s] description of Mr. Taylor as a pedophile." The Attorney General responds Justice S. presented as a confident and mature witness, and the jury may have understood Justice S.'s use of the term "'phile" to refer to the substantial age difference between Justice S. and Taylor.
Taylor cites People v. Ewoldt (1994) 7 Cal.4th 380, where the California Supreme Court noted evidence of uncharged misconduct can be prejudicial because if uncharged conduct did not result in criminal convictions, the jury might be inclined to punish the defendant for it. (Id. at p. 405.) But here, Sergeant Tack testified he took Taylor into custody on the night of the 2009 incident. It is not clear why Taylor thinks the jury would assume he was not charged or convicted. Taylor also relies on State v. Cox (2015) 272 Or.App. 390 . This Oregon case is not controlling authority. It is distinguishable because it concerned the prejudicial effect of statements made by the prosecutor in closing arguments. (Id. at pp. 409-412.)
We decline both parties' invitation to speculate regarding how the jurors may have understood Justice S.'s statement, or how they may have understood the court's curative instruction. Instead, we presume they followed the instruction telling them Taylor had never been charged with having sexual interaction with minors. (Avila, supra, 38 Cal. 4th at p. 574 ["We presume the jury followed the court's instructions"].) The trial court is "obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping proceedings up to that point." (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678, italics omitted.) We find no abuse of discretion in the court's decision its instructions were sufficient to cure any harm. (People v. Bryant (2014) 60 Cal.4th 335, 390 ["A merely debatable ruling cannot be deemed an abuse of discretion"].)
Where Taylor has not shown the court erred when it denied his motion for a mistrial, we do not address his argument it is reasonably probable the judgment would have been more favorable to him absent the error. For the same reason, we do not address Taylor's arguments the statements of Justice S. and Sergeant Tack violated his due process rights, or were not harmless beyond a reasonable doubt. --------
III.
Taylor's Sentence
At the sentencing hearing, the court sentenced Taylor to 18 years in state prison. However, the sentencing minute order and the abstract of judgment indicate the court sentenced Taylor to 17 years in prison, and, for count 5, Taylor was sentenced to one year in county jail to run consecutive to his prison sentence.
The Attorney General requested the abstract of judgment be corrected to reflect the court's oral pronouncement of judgment. Taylor did not address the request in his reply brief. We sought supplemental briefing because, for count 5, the jury convicted Taylor of misdemeanor false imprisonment, which is punishable by imprisonment in county jail, not prison. (§ 237.) In its supplemental brief, the Attorney General concedes the court did not have authority to sentence Taylor to one year in prison for count 5, and withdraws its request for modification of the abstract of judgment. Taylor does not disagree. Accordingly, we take no action with respect to the discrepancy. We presume the sentencing minutes and the abstract of judgment correctly describe Taylor's sentence.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.