Filed 11/27/13 P. v. Luong CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. HONG THAI LUONG, Defendant and Appellant. G047220 (Super. Ct. No. 08WF2195)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Mark D. Johnson, under appointme nt by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistan t Attorney General, Kristine A. Gutierrez and Felicity Senoski, Deputy Attorneys Gene ral, for Plaintiff and Respondent.
* * *2 A jury convicted Hong Th ai Luong of committing lewd acts upon four girls between the ages of eight and 10 in separate incidents as a school music teacher and at a tutoring center. (Pen. Code, §§ 288, subd . (a); 1203.066, subd. (a)(7) [punishment enhancement for multiple child victims].) He argues the trial court erre d in denying his mistrial motion when the prosecutor failed to redact the names of two other girls the victim mentioned in a videotaped interview with a so cial worker. Based on the context of the interview, Luong argues the jury may ha ve inferred the girls also were Luong’s victims. As we explain, the referenc e was brief, vague, and the context did not necessarily suggest the two gi rls were themselves additiona l victims of uncharged lewd acts committed by Luong. Consequently, the trial court did not abuse its discretion in denying a mistrial. Similarly, the prosecutor did commit reversible error or misconduct in failing to ensure the names were redacted fro m the video, or in a separate incident in cross-examining Luong. Luong’s challenges are therefore without merit, and we affirm the judgment.
I
FACTUAL AND PROCEDUR AL BACKGROUND In 2008, 52-year-old Luong was a music teacher and choir director at several schools, including St. Callistus Catho lic School (St. Callistus), and he tutored students at the Paramount Learning Center (t he Center). C. V. attended St. Callistus,
where she took music lessons with Luong and participated in the school choir he directed. During music class, Luong sat C. on his lap wh ile she played the piano, placing his hands on her waist and bouncing his le g up and down. On one occa sion when C. was in third grade, she helped Luong put chairs away after choir practice and he called her over to him, grabbed her hand, pulled her to him, kissed her on the lips and placed his hand3 underneath her shirt on her back. C. left the room for after-school daycare provided by the school, and reported the incident to her mother that night, who reported it immediately to the school principal. That same year, fifth-grader Meagan L., her sister Sydney L., and their friend T.T. attended the Center, which was ow ned by Luong’s girlfriend, with whom he had children. Luong fondled 10-year-old Meagan’s breasts under her clothing, while he was helping her with her homework. He also lifted Meagan’s head on another occasion while she was working on her home work, and kissed her on the lips. On another occasion, eight-yea r-old Sydney dropped her pencil. As she was bending over to pick it up, Luong drew near, pulled her pants open, put his hands inside the back of her pant s and touched her bottom.
T.T. attended the Center when she was nine years old. Luong kissed and touched T.T. inappropriately several times at the Center, touching her on her chest, between her legs, and on her bottom. He al so kissed her on the lips while helping with her homework. He put his hand inside T.T.’s shirt, touched her on the “pointy part” of her bare chest, and then quic kly removed his hand when a bo y walked past the room. On
other occasions at the Cente r, Luong touched T.T .’s “privacy” between her legs and on
her bottom. The girls did not tell their parents ab out what happened because they were
scared. Meagan, however, did confid e in her friend Julie Ann, and eventually she, Sydney, and T.T. talked about Luong’s advances. Julie An n told her mother, who called Meagan and Sydney’s father, T. When Meagan and Sydne y’s parents found out about the abuse, they contacted T.T.’s parents and the police.4 T., assisted by a Garden Grove po lice officer who spoke Vietnamese, made a covert call to Luong in October 2008. Luong initially denied touching the girls, but then fell back on an explan ation that “these touching incidents might have been
unintentional.” When T. confronted Lu ong about kissing the girls on the lips, Luong explained that if he did that, it was because he kissed his children and grandchildren in
the same manner. The police arrested Luong and in la te October and early November 2008, C., Meagan, Sydney, and T.T. were each interviewed by a member of the Child Abuse Services Team (CAST). Th e prosecution played video recordings of the CAST interviews at trial, each of the four girls te stified, and Luong also testified, denying the abuse. The jury convicted Luon g of lewdly touching each child in separate incidents, the trial court imposed an aggregate sentence of 12 years in prison, a nd Luong now appeals.
II
DISCUSSION
A. The Trial Court Did Not Err in Denying Luong’s Mistrial Motion 1. Procedural Background Luong contends the trial court erred in denying his mistrial motion after the prosecutor played for th e jury T.T.’s CAST interview vide o that included her reference to two of Luong’s other female students. T. T. did not say in mentioning the two names whether these girls had suffered any abuse. Th e parties had agreed before trial to redact
the names of other minors besides the four vi ctims, and the prosecutor apologized for his error in failing to omit all the names. At tria l, he inadvertently dist ributed to the jury a transcript of T.T.’s interview that included two female names, Tanya and Jacqueline, but managed to retrieve it and replace it before th e jury viewed T.T.’s interview. But the5 prosecutor did not realize the video itself had not been corrected, and when he played it for the jury, it included the two names, wh ich occurred at the end of the video, corresponding to the 38th page of the 42-page transcript. The prosecutor explained to the trial c ourt, “[T]his is my error, your honor. I apologize. I believed it had been corrected out.” He had submitte d the CAST video to his “tech services,” “[t]hey were supposed to have edited out the names of Tanya and Jacqueline,” and while he had “informed defe nse counsel those por tions had been edited out, . . . those edits weren’t actually done.” The prosecutor observed, “I think it’s a minor thing that went by very quickly. I don’t kn ow if the jurors caught anything other than, hey, these two names weren’t in the reports . . . .” Defense counsel complained the ju ry had been expos ed to excluded
evidence. The trial court had adopted the parties’ agreed-u pon redactions by delegating
the matter to them before trial. Counsel argued mistrial was the appropriate remedy instead of “trying to unring that bell.” According to counsel, only a mistrial would
suffice because an admonishment to the jury regarding the reference would “highlight[] the problem and it just draw s more attention to it.” The trial court agreed with defense co unsel that “[y]ou don’t want to really highlight it.” But the court concluded a mist rial was not warranted. “[I]t was just two
names. It was inadvertent. I don’t think it changes the dynamics of what we’re doing here. And, frankly, we will know if it become s an issue for any reason because . . . . The only way it could come out as a problem we really have to deal with is if the jury says, hey, what about these other two names I t hought I heard about? They’re not here anymore. [¶] But I have to tell you, at the end of four interviews, they were pretty well6 glazed over and, frankly, they were looking up and looking down. So they heard what they heard . . . .” Specifically, T.T.’s CAST intervie w reference to Tanya and Jacqueline arose in the following manner. After T.T. told the interviewing social worker about an initial incident at the tutoring center in which Luong grabbed he r by her wrist and touched her with his hand “somewhere on my st omach,” this colloquy ensued: “[Q]: Did you ever tell anybody about the time that he was holding onto your wrist? Who’d you tell? [¶] [A]: Meagan, Sydney, Tanya and Jacqueline . [¶] [Q]: Okay. Did you tell them on the same day that that happened or on a different day or what? [¶] [A]: Same day. [¶] [Q]: The same day? Okay, alri ght. And did any of them every say, did they say that anything happened to them when y ou told them on that day? Hum? Okay, alright. ‘Cause you had said that some, that certain things had happened to each one of the other girls? Except for not, not Julie Ann?” (Italics added.) A ringing telephone interrupted the social worker, and she did not return to her questions about whether “anything” had happened to the other girls, including Tanya and Jacqueline or, if so,
whether it was similar to L uong grasping T.T.’s wrist or of a different nature. Previously in the interv iew, the social worker had asked T.T. about a more explicit incident in which Luong reached in side her pants and underwear while she was sitting down and touched her “on [her] b- u-t-t,” and whether anything similar had happened to friends she told about that incident. T.T. mentioned only Meagan and Sydney. Specifically, th e following colloquy occurred: “[Q] : Okay, so you gave me the name of Meagan. Did you tell Meagan? Okay . Did Meagan say anything ever happened to her? You’re shaking your head up and down . And then you told Sydney. Okay. Did7 Sydney say anything ever happ ened to her? [A]: It only happened once to her. [Q]: And Julie Ann? [A]: No, she’ s not in our tutor [group].”

2. Governing Law and Analysis We review a trial court's ruling on whether to grant a mistrial under the
differential abuse of di scretion standard. ( People v. Cox (2003) 30 Cal. 4th 916, 953, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) “[E]xposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and renderi ng suspect the outcome of the trial. [Citations.]” ( People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581, overruled on another ground in People v. Scott (2011) 52 Cal.4th 452; see People v. Thompson (1980) 27 Cal.3d 303, 314 [cautioning that “evidence that involves crimes other than those for which a defendant is being tried has a ‘highl y inflammatory and prejudicial effect’ on the trier of fact”].) But “[j]uries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mi strial, it is axiomatic the prejudicial effect of these comments may be corre cted by judicial admonishme nt; absent evidence to the contrary the error is deemed cured.” ( People v. Martin (1983) 150 Cal.App.3d 148, 163 ( Martin ).)
Whether to admonish the jury rests in the trial c ourt’s sound discretion. ( Martin , supra , 150 Cal.App.3d at p. 163.) The trial court should grant a mistrial “only when a party’s chances of receiving a fair tr ial have been irrepara bly damaged . . . .” ( People v. Bolden (2002) 29 Cal.4th 515, 555.) “‘Whether a particular incident is incurably prejudicial is by its nature a specula tive matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” ( People v. Wharton8 (1991) 53 Cal.3d 522, 565; People v. Chatman (2006) 38 Cal.4th 344, 369-370 [“Whether a particular incident is incurabl y prejudicial requires a nuanced, fact-based analysis”].) The trial court did not err in declining to declare a mistrial. T.T.’s reference to Tanya and Jacqueline in the video was brie f, vague, and made in the context of telling them about an incident in which Luong held her wrist, which did not suggest Tanya and Jacqueline were additional victims of Luong. (Cf. People v. Valdez (2004) 32 Cal.4th 73, 128 [officer’s statement hinted at additio nal criminality in noting he interviewed
defendant at “‘Chino Institute ,’” but “brief and isolat ed” remark did not require mistrial].) Just as we may not mechanically infer the ju ry drew the most damaging meaning from a prosecutor’s statements ( People v. Frye (1998) 18 Cal .4th 894, 970, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22), there is no reason to suppose th e jury viewed T.T.’s referen ce to Tanya and Jacqueline in a prejudicial manner. The trial court found no prejudicial impact from the stray remark, candidly observing that by the end of the video th e jury’s attention had waned. We are in no position to second-guess this factual determination. Luong argues T.T.’s reference to Tanya and Jacqueline may have tipped what he terms “a very close case” against him (bold typefa ce omitted), given the “length of deliberations and the request for a readb ack” of a detective’s testimony. But “the length of a jury’s deliberation is related to the amount of info rmation presented at trial.” ( People v. Houston (2005) 130 Cal.App.4th 279, 301.) Here, after a six-day trial in which 17 witnesses testified, the jury deliberated only 10 minutes the evening they received the case, and then appr oximately five hours the next day. The jury did not ask any questions about Tanya or Jacqueline or T.T.’s CAST interview, but instead had9 Luong’s account of events in hi s police interview read back to them. The jury reached a verdict a half hour after convening the next mo rning. The case was not particularly close, given Luong’s pervasive conduct in separate locales and the consis tency of the testimony
from victims who did not know each other. Th e trial court reasonably could conclude an admonition would have only highlighted the unredacted reference, and that if it had caught the jury’s atten tion they would have asked about it. The court properly rejected Luong’s mistrial motion.

B. The Prosecutor Did Not Commit Re versible Error or Misconduct Luong contends the pros ecutor committed misconduct in failing to redact the two names in T.T.’s video and by referri ng to an English-language transcript of a
covert call in Vietnamese when he cross-ex amined Luong. As our Supreme Court has observed, “[T]he term prosecu torial ‘misconduct’ is some what of a misnomer to the extent that it suggests a prosecutor must act wi th 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 ), overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “Because we cons ider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.]” ( People v. Crew (2003) 31 Cal.4th 822, 839.) Under state law, prosecutorial miscon duct involves “‘“the use of deceptive or reprehensible methods to attempt to pe rsuade either the court or the jury.”’ [Citations.]” ( People v. Espinoza (1992) 3 Cal.4th 806, 82 0.) State law misconduct necessitates reversal where it is reasonably pr obable the prosecutor’s behavior affected the verdict. ( Id . at p. 820-821.) “‘A prosecutor’s . . . intemperate behavior violates the10 federal Constitution when it comprises a pattern of conduct “so egregious that it infects
the trial with such unfairne ss as to make the conviction a denial of due process.” [Citations.]’” ( People v. Gionis (1995) 9 Cal.4th 1196, 12 14-1215.) Such pervasive misconduct requires reversal unless it is ha rmless beyond a reasonable doubt. ( Hill , supra , 17 Cal.4th at pp. 819, 844.) The Attorney General argues Luong forfeited these contentions on appeal because he did not object on grounds of prosecutori al misconduct. (See People v. Riggs (2008) 44 Cal.4th 248, 298 [n oting forfeiture generally app lies “‘“unless in a timely fashion — and on the same gr ound — the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety”’”].) We reach the issue, however, because in both instances Luong challenged the prosecutor’s specific conduct though he did not label it prosecutoria l misconduct. Nevertheless, as noted, there was no prejudice in the prosecuto r’s failure to redact the isol ated reference to Tanya and Jacqueline in T.T.’s video interview. Absent prejudice, there is no basis for reversal. (Cal. Const., art. VI, § 13.) Similarly, the prosecutor’s reference to an English-language
translation or translations of a covert ca ll Luong received from Meagan’s and Sydney’s father (T.) does not require reversal. The translation transcript issue ar ose when Luong admitted that during a recorded, covert call with T. he may have kissed Meagan and Sydney like they were his own children, but on cross-examination he denied telling T. it was his “nature to kiss children as though they are my own. It’s a habit. So metimes it’s an acc ident.” Holding a transcript of the telephone conversati on between Luong and T. in his hand, the prosecutor had begun his cross-examination by confirming, “You had an opportunity to review this transcript before you testified; correct?” and he confirmed two or three more11 times in his questioning that Luong “reviewed the transcripts of that call . . . before you got on the stand,” but Luong steadfastly deni ed telling T. it was his “nature” to kiss
children as his own or that it was a “habit” or “accident.” Luong explained, “To me, for this translation, so many spot [s] that I disagree [with].” When defense counsel objected to the prosecutor’s references to the transcript, it emerged that the defense and pr osecution each had their own translations of the call, there was no agreed-upon translation, and Luong disagreed w ith portions of the defense’s own transcript. Neither transcript was admitted into evidence. The court acknowledged, “[W]hat I think is misleading, and the jury doesn’t know about any of this, they’re sitting there thinking there’s one transcript out there and I wonder why I haven’t heard it, if I’m guessing what jurors are doing, but really there are two, and I
don’t think that’s been made clear to the jury.” Luong re quested that the trial court admonish the jury that no agr eed-upon transcript existed, but the court instead simply instructed the prosecutor to “s tay away” from referring to any transcript. Luong does not challenge the trial court’s ruling on appeal , but instead argues the prosecutor’s initial references to his transcript constituted miscond uct or error and, left uncorrected, the error was prejudicial. The prosecutor should not have re ferred to a transcript without first establishing that Luong had seen the same transcript, but it is not more likely Luong
would have obtained a better tria l outcome absent the error, nor was he deprived of a fair trial. The prosecutor referred to the transc ript only a few times in his lengthy crossexamination, and Luong hims elf admitted he kissed his st udents in an affectionate manner as if they were his own.12 Luong denied the phrasing in the prosec utor’s transcript that it was in his “nature” to kiss young girls this way, or that it was a “habit” or an “accident,” but these
denials were consistent with his defense. Luong had explained in his testimony that he may have kissed Meagan and Sydney in a father ly way, and he said much the same thing to the detective who interviewed him, explai ning he did not often bestow kisses but “it just, it just probably just happens, you know, um, that kissing is to me like probably . . . just like timing, I don’t mean anything wron g, doing anything on purp ose[.]” In effect, Luong seeks reversal from the bare fact the transcript the prosecutor referred to had not been admitted into evidence, but since the transcript simp ly echoed ot her evidence instead of introducing someth ing new and harmful, Luong suffered no prejudice. And given the prosecutor’s two errors in relation to the CAST tape and the transcript were relatively minor and isolated in a lengthy tr ial, there was no “synergistic” due process violation requiring revers al based on pervasive or cumulative error. ( Hill , supra , 17 Cal.4th at p. 847.)
III
DISPOSITION The judgment is affirmed.

ARONSON, J.
WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.