Filed 8/6/24 P. v. Kroll CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID FERN KROLL

,
Defendant and Appellant. B3 19888

Los Angeles County Super. Ct. No. SA103166

APPEAL from a judgment of the Superior Court of
Los Angeles County, Joseph J. Burghardt , Judge. Affirmed.

Maria Leftwich

, under appointment by the Court of Appeal,
for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris

, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________2 A jury convicted David Fern Kroll of stalking a woman

. On appeal, Kroll argues the trial court erred by limiting the scope
of his expert ’s testimony concerning the effect s of his mental
illness and substance abuse on his mental state at the time of
the crime . He also argues the trial court should have granted a
mistrial after the jury heard unprompted testimony that he had
been in prison. We find no prejudicial error and affirm.
FACTS AND PROCEDURAL BACKGROUND In November 2019, Talia Landman moved into an apartment with a balcony overlooking an alley. Shortly after moving in , Landman noticed Kroll was living in a tent in the alley. Kroll would sometimes play loud music, talk to himself,

or start screaming at no one in particular. He also has a history of methamphetamine use. Landman decided to document Kroll’s behavior by videotaping him with her cell phone. One day in May 2020,
Kroll noticed Landman videotaping him and became upset.
Kroll threw rocks at Landman and her dog. He yelled,

“ ‘ Bitch, you think I won’t climb up there and fuck you up. ’ ”
A few months later

— around August 2020

— Landman
called the police after Kroll got into an argument with one
of her neighbors. Landman talked to the responding officers outside the apartment building. After the officers left, Kroll

w alked past Landman’s balcony and said, “ ‘ You’ll get yours tonight, bitch. ’ ” Landman was inside her apartment at the time.
About a week later

— on August 19

— Landman woke up in the early morning to a loud noise. She looked outside and saw Kroll climbing up onto her balcony. Kroll looked at Landman and screamed that he was going to kill her and her dog. Landman
was terrified and called 911. Kroll ran to a dark corner in the3

alley and continued to talk about killing Landman and her dog. Kroll left before the police arrived. After the balcony incident, Landman bought pepper spray and a taser, and she started sleeping with a knife next to her bed. Landman rearranged her sleep schedule so she would be awake during the early morning hours. Landman went for a run on the morning of August 24. Kroll rode past her on his bicycle and said, “ ‘ Y ou want to play, bitch, I’ll fuckin’ kill you. ’ ” Landman reported the incident

to the police, and an officer helped her obtain an emergency protective order. An officer handed the order to Kroll. Three days later

— on August 27

— one of Landman’s neighbors alerted her that Kroll was riding his bicycle in the alley near her balcony. Landman needed to take her dog on

a walk, so she left the apartment through a different door than usual to try to avoid Kroll. However, Kroll was waiting outside the apartment and saw Landman immediately. Kroll rode past Landman on his bi cycle , and Landman started videotaping him with her phone. Kroll took out his phone and appeared to videotape Landman. Kroll started riding toward Landman again, and she got out her pepper spray. Kroll reached his hand behind his body , and Landman thought he was trying to get something out of his backpack. When Kroll was two feet from Landman, she sprayed him with pepper spray and yelled for him to stay away from her. Kroll backed off and said something like,

“ ‘ I’ll fu ckin’ kill you, bitch. ’ ” Kroll ran to a nearby gas station and washed his face with
the water used to clean windshield s. He then grabbed a squeegee from the gas station and started running back toward Landman. Landman’s neighbors and a parking enforcement officer stopped4

Kroll and surrounded him. They prevented Kroll from fleeing
while Landman called 911. The police responded to the call and arrested Kroll. According to one of the responding officers, Landman was shaking and visibly upset. Kroll appeared to be angry, but
he answered the officer’s questions appropriately. One of the officers searched Kroll’s backpack and found a copy of the protective order. The People charged Kroll with stalking ( Pen. Code, § 646.9, subd. (a)) 1 and alleged he committed the crime while a temporary restraining order was in effect ( id ., subd. (b)). The People also charged Kroll with disobeying a court order (§ 166, subd. (a)(4)), and two counts of making criminal threats (§ 422, subd. (a)).
The People alleged Kroll had a prior conviction for making criminal threats, which qualified as a strike for purposes of
the Three Strikes law. Landman was the People’s primary witness at trial,
and she testified to most of the facts summarized above. The People also presented testimony from Landman’s neighbor, police officers, and the parking enforcement officer who came to
Landman’s aid. In his defense, Kroll presented expert testimony from Dr. Katy Drorit Gaines , who is a neuropsychologist. We discuss Dr. Gaines’s testimony in more detail below. The jury convicted Kroll of stalking and found him not guilty of the other charges. Kroll waived his right to a jury trial on the prior conviction allegation, and the court found it to be

true. The court sentenced Kroll to six years in prison, consisting of the high term of three years doubled for the prior strike.

1 Statutory reference are to the Penal Code.5 Kroll timely appealed.

DISCUSSION

1. The trial court did not deny Kroll a full defense Kroll argues the trial court violated his right to present a
full defense by restricting expert testimony concerning his mental
conditions and their e ffect on his mental state at the time of the alleged crimes.

a. Relevant law and standard of review
S talking, in violation of section 646.9

, has three elements: (1) repeatedly following or willfully and maliciously harassing another person, and (2) making a credible threat (3) with the intent to place that person in reasonable fear for his or her safety

. (§ 646.9, subd. (a). ) It is a specific intent crime. (See People v.
Carron (1995) 37 Cal.App.4th 1230, 1233.)
Sections 28 and 29 limit the admission of evidence concerning a defendant’s mental illness to show or negate the
mental state element of a crime

. S ection 28 states , in relevant part, evidence of a defendant’s “mental disease, mental defect,

or mental disorder shall not be admitted to show or negate the capacity to form any mental state .” (§ 28, subd. (a).) Instead, such evidence is admissible “solely on the issue of whether

or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought.” ( Ibid .) Section 29 states an expert may not testify “as to whether the defendant had or did not have the required mental states,
which include [s] . . . intent.” “[S]ections 28 and 29 do not prevent the defendant
from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense,6

as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged.” ( People v. Cortes (2011) 192 Cal.App.4th 873, 908 ( Cortes )

. ) We review the trial court’s decision to exclude expert testimony for abuse of discretion. ( People v. Pearson (2013)
56 Cal.4th 393, 443.)
b. Background Before trial, the People moved to preclude Dr. Gaines from testifying , arguing her testimony would be irrelevant and would not negate any element of the charged crimes. T he court was skeptical of the motion, noting mental illness evidence has the potential to “negate specific intent.” The court also indicated
Dr. Gaines’s testimony would be admissible to the extent it concerned Kroll’s mental illness at the time of the crimes
and how it affected his specific intent. After listening to Dr. Gaines ’s testimony at an Evidence
Code section 402 hearing, t he court denied the People’s motion

. However, th e court ordered Dr. Gaines not to testify to Kroll’s capacity to have the required intent or whether he actually
had the required intent. On direct examination during the defense case , Dr. Gaines testified that she interviewed Kroll over the course of six hours, evaluated him using standardized tests, reviewed his mental health records, and watched videos Landman had taken of him.
Dr. Gaines diagnosed Kroll with schizophrenia paranoid type

, major neurocognitive disorder multiple ideologies, and prenatal alcohol exposure

.7 Dr. Gain e s explained that Kroll’s conditions cause delusions, hallucinations, and disorganized speech. The conditions may cause a person to struggle to maintain relationships, react strongly to criticism, and perceive his environment as threatening, even if it is not. In addition, individuals who suffer from schizophrenia may use methamphetamine to self medicate. According to Dr. Gaines, Kroll scored in the “impaired” range on an I.Q. test and scored extremely poorly on a test measuring planning and organizing information. His profile showed impairment in executive functioning, memory and learning, and impulse control. Those impairments are commonly found in persons suffering from schizophrenia and those with a history of long

- term methamphetamine use. Kroll also displayed difficulty modulating his behavior, thoughts, and emotions.
Defense counsel asked Dr. Gain e s to discuss how Kroll’s diagnoses “address the issue of whether or not Mr. Kroll had

an intent . . . that a threat be[ ] taken as a threat?” Dr. Gaines responded that it is “not possible for [her] to say what his intent is or was at a particular moment in time,” nor was she able

to know his mental state at the time he acted. She could only “opine on whether the conditions that [Kroll] has . . . can impair thought processes that have to do with the formation of intent.” Dr. Gaines went on to explain that Kroll has several serious mental health and neurocognitive disorders that affect the way his thoughts are formulated and processed. She noted that intent has to be formulated for a person to then elect to take
an action. Given Kroll’s conditions, it is possible there was

an “interruption” to the process of the formulation of intent. Moreover, a person with impaired executive functioning may8

have trouble inhibit ing reactions and emotions. Therefore,
such a person might “blurt” something out that they later regret.
Defense counsel asked Dr. Gaines to watch some of the
videos Landman had taken of Kroll. Dr. Gaines remarked
that Kroll’s presentation in the videos was consistent with

a person suffering from schizophrenia and under the influence
of a substance. One video showed Kroll talking to himself,
which Dr. Gain e s said is a common behavior for people suffering from schizophrenia and paranoia. In another video, Kroll was riding a bi cycle and videotaping Landman. Dr. Gain e s was
not surprised that Kroll was videotaping Landman, explaining
it was a common reaction for people with paranoia.
Another video apparently showed Landman taunting Kroll.
Dr. Gain e s explained that this type of interaction could elicit a reaction from someone with Kroll’s conditions. She noted that Kroll did not react to Landman’s taunts in the video, which suggested his schizophrenia may have been less active at the
time the video was taken. Dr. Gaines also suggested Kroll might become more volatile while under the influence of methamphetamine.
Defense counsel asked Dr. Gaines if she could form an opinion on Kroll’s mental state based on evidence showing he

was coherent while talking to a police officer after an encounter
with Landman. Dr. Gaines said it would be “inappropriate” for an expert to formulate an opinion based on a single piece of data. Defense counsel then asked, “So given Mr. Kroll’s psychological setting in August of 2020, particularly August 19th through 27th of 2020, do you have an opinion as to whether the type of encounters Mr. Kroll had with Ms. Landman on those dates could have resulted in him making threats that he did not9

intend as actual threats?” The prosecutor objected, and the court sustained the objection. At defense counsel’s request, the parties and the court discussed the objection at a sidebar. The court explained it sustained the objection because Dr. Gain e s testified she could

not opine as to Kroll’s intent on a particular day, yet it seemed defense counsel was “getting into the specific day and his specific
mental state.” Defense counsel disagreed, stating he asked about Kroll’s “psychological setting,” not his specific mental state. Counsel
noted that he asked the expert whether Kroll could form the requisite intent, not whether he actually did so. The court responded that Dr. Gain e s had already answered that question when she testified Kroll’s mental illness and methamphetamine
use could affect his decision

- making

, impulse behavior, and thought process. The court also noted Dr. Gain e s “already told us
that she’s not fam iliar and not able to opine on what his mental state was that particular day.” Defense counsel suggested the court was conflating the issue of whether Kroll’s conditions could affect his intent with
the issue of whether he did, in fact, form the requisite intent. The court disagreed and clarified that defense counsel could ask the expert if, “based on her knowledge of his mental illness, her testing of him, that it could affect his ability to form the processes
and intent.” Defense counsel said he would “ask it that way.” After the sidebar, defense counsel asked Dr. Gaines one question

, “ [ H ] ow does the diagnosis that you talked about

— how does that describe or impact [Kroll’s] mental state ? ”
Dr. Gaines responded, “These types of diagnos [e] s can impact
the consciousness and the awareness and the clarity of the10

thought process and therefore a person may do things or

say things that they don’t mean to.”

c. Application Kroll argues the trial court erroneously excluded
Dr. Gaines’s expert testimony concerning the effect s of his mental conditions at the time of the alleged offenses. Specifically, he contends the court erred by precluding defense counsel from asking Dr. Gain e s, “So given Mr. Kroll’s psychological setting in August of 2020, particularly August 19th through 27th of 2020, do you have an opinion as to whether the type of encounters
Mr. Kroll had with Ms. Landman on those dates could have resulted in him making threats that he did not intend as
actual threats?” According to Kroll, the record shows the court sustained the objection based on the erroneous belief that experts are prohibited from testifying about the effects of a defendant’s
mental condition at the time of an offense. Contrary to Kroll’s contention, the trial court neither expressed, nor implied, it sustained the objection for that reason.
The record instead makes clear the court understood the scope
of sections 28 and 29, including that an expert may testify to
the effects of a defendant’s mental conditions at the time of an alleged crime. Indeed, w hile discussing the People’s pretrial motion to preclude Dr. Gain e s from testifying, the court explicitly
stated her testimony would be admissible if she opined that
he was suffering from a mental illness “on that day at that particular time.” The court also noted evidence of a defendant’s mental illness may “negate specific intent.” It is apparent from
th ese comment s that the court understood Dr. Gaines could testify to Kroll’s specific conditions at the time of the offenses
and how those conditions may have affected his intent.11 Kroll nevertheless suggests the court must have misunderstood the law because the wording of defense counsel’s question was substantially similar to the language the court approved in People v. Nunn (1996) 50 Cal.App.4th 1357 ( Nunn )

. In Nunn , a jury convicted the defendant of attempted murder after he fired gunshots at several people standing next to a road. ( Id . at p p

. 1359

– 136 0 .) On appeal, the defendant argued
the trial court erred by excluding expert testimony that the defendant’s “ ‘tendency to overreact, coupled with his level
of inebriation, resulted in his impulsive firing of the weapon’ ”

at the victims. ( Id . at p p

. 1359, 1362.) The court rejected the argument, explaining section s 28 and 29 precluded the expert
from testifying “th at [defendant] had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought.” ( Id . at p. 1365.) In dicta, the court noted the expert could have testified to other issues, including whether
the encounter with the victims “was the type that could result
in an impulsive reaction from one with [defendant’s] mental condition.” ( Ibid .)
Kroll’s reliance on Nunn is misplaced. At the outset, the
Nunn court did not approve specific language that defendants may use to question experts at trial. Instead, the language

on which Kroll relies comes from dicta concerning potential topics the expert could have testified to in that particular case. Therefore, although Nunn may be relevant to whether the subject matter of Kroll’s question was appropriate, the fact that defense counsel used similar language while questioning Dr. Gaines is
not determinative. In any event, Kroll’s question differed from the Nunn dicta in a meaningful way. In Nunn , the court noted the expert could12

have testified to whether the circumstances of the case might

cause a hypothetical person with the defendant’s mental condition
to act with a certain mental state. ( Nunn, supra , 50 Cal.App.4th at p. 1365.) Here, in contrast, defense counsel asked Dr. Gaines
whether the circumstances of the case could have caused Kroll

, himself

, to act with a certain mental state

. By making Kroll the focus of the question

— rather than

a hypothetical person with the same mental condition

— defense counsel’s question came perilously clos e to asking D r. Gain e s to opine on whether Kroll actually possessed the requisite mental

state for the crime

. Therefore, e v en if counsel did not intend

to ask for an opinion on Kroll’s actual mental state, there was

a significant risk Dr. Gaines or the jury would interpret it that

way. Th e risk was compounded by the fact that defense counsel ’s question was relatively long, contained multiple clauses

, and

was somewhat difficult to follow. Under these circumstances,
the court acted reasonably and appropriately by sustaining
the objection to defense counsel’s question

. Even if the court erred by sustaining the objection

, the error was harmless under any standard. (See Chapman

v. California (1967) 386 U.S. 18, 24 [reversal is required unless
the error was harmless beyond a reasonable doubt]; People v.
Watson (1956) 46 Cal.2d 818, 836 [reversal is required only
if it is “reasonably probable that a result more favorable to
the appealing party would have been reached in the absence
of the error”].) Contrary to Kroll’s suggestions, the court did not categorically preclude him from presenting evidence explaining how his mental illness and drug use may have affected his
mental state at the time of the offenses. Instead, the court13

consistently stated Kroll could explore those topics with his expert. B efore trial, for example, the court stated Dr. Gaines’s testimony would be admissible if it concerned the effects of
his mental illness at the specific time he committed the alleged
crimes. The court also suggested Dr. Gaines could testify a bout
how this affected Kroll’s specific intent. Moreover, e ven a fter sustaining the objection to defense counsel’s question , the

court allowed him to ask Dr. Gaines how Kroll’s mental illness “could affect his ability to form the processes and intent.”
Consistent with the court’s s tatements
, defense counsel
asked Dr. Gaine s to explain how Kroll’s diagnoses “address the
issue of whether or not Mr. Kroll had an intent . . . that a threat be[ ] taken as a threat

. ” In response, Dr. Gain e s testified at length concerning how Kroll’s mental conditions affect intent generally, and how they could have caused Kroll specifically to
verbalize a threat he did not intend to make. Dr. Gaines also reviewed videos showing Kroll interacting with Landman and discussed how Kroll’s mental conditions may have affected his behavior during those interactions. On this record , there is simply no merit to Kroll’s contention that the court prevented him from presenting a full defense concerning the effects of
h is mental conditions at the time of the offenses. Nor is there merit to Kroll’s contention that the prosecutor “capitalized” on the court’s ruling during her closing argument. Kroll points to the prosecutor’s comment that Dr. Gaines “can’t say what [Kroll’s] intent is or was at a particular time. That i s what you decide as the jury.” T he prosecutor accurately quoted Dr. Gaines’s testimony

, and her comments were consistent with
the law. Section 29 plainly states an expert “shall not testify

as to whether the defendant had or did not have the required14

mental states.” Instead, the “question as to whether the defendant had or did not have the required mental states shall
be decided by the trier of fact.” ( Ibid .) Simply stated, t here
is nothing improper about the prosecutor’s remarks. Cortes, supra , 192 Cal.App.4th 873 and People v. Herrera (2016) 247 Cal.App.4th 467 are inapposite

. The trial courts in those cases broadly prohibited expert testimony concerning the defendants’ mental conditions at the time of the alleged crimes.
The trial court in Cortes , for example, excluded testimony “about defendant’s particular diagnoses and mental condition and their effect on him at the time of the offense.” ( Cortes , at p. 909.)
The trial court in Herrera similarly excluded expert testimony

con cerning “ ‘ anything related to ’ ” the defendant’s mental state
at the time of the crime. ( Herrera , at pp. 474

– 475.) Both rulings

were prejudicial because they “robbed” the expert testimony of relevance and left the jury no basis to infer the defendant did not act with the requisite mental state. ( Cortes , at p. 912; Herrera

, at p. 478.)
The trial court did nothing comparable in this case. T he court sustained an objection to a single question from defense
counsel

, but it did not categorically exclude evidence concerning Kroll’s mental conditions at the time of the alleged offense s

. I nstead, the court repeatedly ruled Kroll could elicit e xpert testimony on the issue. Dr. Gaines, in turn, testified at length concerning how Kroll’s mental conditions may have led him

to make statements that resembled threats, but without having
intended to threaten Landman. Considering the entire record and all the circumstances

, any error in sustaining an objection to defense counsel’s question was harmless beyond a reasonable doubt. (See People v. Nieves15

(2021) 11 Cal.5th 404, 441 [court’s limit on expert testimony
under section 29 was harmless error where the “defense experts were otherwise able to testify concerning the substance of what defendant sought to present”].) Accordingly, it does not provide grounds to reverse the judgment.
2

. The trial court properly denied Kroll’s motion for

a m istrial Kroll argues the trial court erred in denying his motion
for a mistrial after the jury heard unprompted testimony that
he had been in prison.

a. Background During Landman’s direct testimony, the prosecutor asked
if she had changed her daily routine because of her interactions
with Kroll. Landman responded that she no longer slept through the night and had started intensive therapy. Landman continued: “I live

— you know, just because he was in prison doesn’t mean that every

— . ” The court interrupted Landman, telling her to “ [ h ] old on.” The court then immediately instructed the jury , “That statement is not to be considered by the jurors. Jurors to disregard that statement.”
Defense counsel requested a sidebar, at which he moved
for a mistrial. Counsel argued the comment painted Kroll as
the “ kind of person that’s fairly consistent with that conduct that
he’d been in prison.” The prosecutor opposed the motion, noting it seemed Landman was referring to the fact that Kroll had been in jail in connection with the charged crimes. Defense counsel disagreed, pointing out that Landman had referred specifically

to prison. The court denied the motion, stating it would instead give a nother admonition.16 After the sidebar, the court instructed the jury

, “ [ T ] he witness just made a comment. There’s no evidence that the defendant either has been to prison or he’s in prison. You’re

to completely and totally disregard that.” The prosecutor then
continued her direct examination.
b. Analysis
We review the denial of a mistrial motion under the deferential abuse of discretion standard. ( People v. Wallace (2008) 44 Cal.4th 1032, 1068.) “ ‘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.’ ” ( Ibid .) Here, the trial court did not abuse its discretion in denying Kroll’s motion for a mistrial. Contrary to Kroll’s contentions, it
is un likely the jury underst oo d Landman ’s comment to imply he
had a prior conviction. Landman made the improper comment while discussing changes she made to her routine as a result of
her encounters with Kroll. Given this context, it is reasonable

to infer she was referring to the fact that Kroll had been
incarcerated as a result of one of those interactions. If the jury understood the comment in that way, Kroll suffered no prejudice

. Kroll did not object when another witness testified that the police took him to jail following his most recent
encounter with Landman. Kroll later played for the jury a video of that arrest, which showed him lying in the street while officers held him at gunpoint. That Kroll voluntarily introduced evidence
of his arrest

— and declined to object to evidence that the officers took him to jail

— strongly suggests he suffered no prejudi ce from17

Landman’s brief reference to his incarceration. 2 (See People v.
Collins (2010) 49 Cal.4th 175, 196

– 199 [ where the defendant established his incarceration as part of his defense strategy, the trial court properly denied a motion for a mistrial after a witness mentioned the incarceration].) Even if the jury understood the comment to refer to a prior
conviction , the trial court’s quick and decisive actions were more
than sufficient to cure any potential prejudice. The trial court interrupted Landman’s testimony

— even before defense counsel had a chance to object

— and immediately instructed jurors not

to consider her statement that Kroll had been in prison

. After

a brief discussion with counsel, the court again instructed the jur ors to “completely and totally disregard” Landman’s comment

, and told them there was “no evidence” that Kroll had been in prison

. That the jury acquitted Kroll on the majority of the charges strongly suggests Landman’s comment was not so outrageous or inherently prejudicial that an admonition could

not have cured it. Accordingly, we may presume the jury followed the court’s instruction to disregard the testimony,
which was sufficient to cure any potential prejudice. (See People
v. Avila (2006) 38 Cal.4th 491, 574 [trial court’s admonition cured prejudice from testimony that the defendant recently had been
in prison]; People v. Valdez (2004) 32 Cal.4th 73, 123 [a witness’s “fleeting reference to ‘jail’ was not ‘so outrageous or inherently prejudicial that an admonition could not have cured it’ ”]; People
v. Navarrete (2010) 181 Cal.App.4th 828, 834 [“Ordinarily, a

2 We acknowledge the officers took Kroll to jail, whereas Landman said he had been in prison. Nevertheless, we think it is unlikely the jurors would have recognized that distinction

or inferred anything from it.18

curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of [improper] testimony, and, ordinarily, we presume a jury is capable of following such

an instruction.”].)
Kroll’s reliance on People v. Ozuna (1963) 213 Cal.App.2d 338, and People v. Allen (1978) 77 Cal.App.3d 924 ( Allen ) , is misplaced. In Ozuna, the prosecutor purposely elicited testimony that the defendant was an “ex

- convict.” (See Ozuna , at p. 341.) On appeal, t he court concluded a curative admonition was not sufficient to remove any prejudice, explaining the “objectionable testimony was produced in order to strengthen the People’s case by generating prejudice in the minds of the jurors. . . . [I]ts use for that purpose was not only serious misconduct but was fraught with such harm to defendant as to be irremediable.” ( Id . at

p. 342.)
In Allen, supra , 77 Cal.App.3d 924, a witness improperly
testified that the defendant had been on parole. ( Id . at p. 929.) The reviewing court concluded an admonition was not sufficient

to cure the testimony’s prejudice because it was an extremely close case that turned on the defendant’s credibility. ( Id . at

p p

. 934

– 935.) Under those circumstances, the court explained, knowledge that the defendant had a prior conviction may have been enough to convince the jury to convict him. ( Id

. at p. 935. ) The circumstances of this case are not comparable to
Ozuna or Allen . Unlike O z una , there is nothing even to suggest
Landman or the prosecutor acted in bad faith. (See Allen, supra

, 77 Cal.App.3d at p. 934 [ suggesting the presumption the jury followed an admonition to disregard improper testimony may
not apply where there is bad faith ].) Moreover, unlike Allen

, this case did not turn on Kroll’s credibility. Instead, it turned19

on whether the jury believed Kroll’s mental illness and drug use caused him to act without the requisite intent. That Kroll had
been in carcerated

— either in connection with the charged crimes or a prior conviction

— had little, if any, releva nce to that issue.
3. We reject Kroll’s cumulative error contention
Kroll argues the cumulative effect of the trial court’s errors deprived him of a fair trial and requires reversal of his conviction. “In examining a claim of cumulative error, the critical question is whether defendant received due process and a fair trial.” ( People
v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Here, w e are satisfied that Kroll received a trial that was fair and comported with due process.
DISPOSITION
We affirm the judgment

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

ADAMS , J

.