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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

B319888

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 effects 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

walked 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 the 
3

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, “ ‘You 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 bicycle, 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 fuckin’ kill you, bitch.’ ”

Kroll ran to a nearby gas station and washed his face with 

the water used to clean windshields. He then grabbed a squeegee 

from the gas station and started running back toward Landman. 

Landman’s neighbors and a parking enforcement officer stopped 
4

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 effect on his mental state at the time of the 

alleged crimes.

a. Relevant law and standard of review

Stalking, 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. Section 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. The 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, the court denied the People’s motion. 

However, the 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. Gaines 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. Gaines 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 may 
8

have trouble inhibiting 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. Gaines said is a common behavior for people suffering 

from schizophrenia and paranoia. In another video, Kroll was 

riding a bicycle and videotaping Landman. Dr. Gaines 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. Gaines 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 not 
9

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. Gaines 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. Gaines 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. Gaines “already told us 

that she’s not familiar 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 the 
10

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 effects of his mental

conditions at the time of the alleged offenses. Specifically, he 

contends the court erred by precluding defense counsel from 

asking Dr. Gaines, “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, while discussing the People’s pretrial 

motion to preclude Dr. Gaines 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 

these comments 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 pp. 1359–1360.) 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 pp. 1359, 1362.) The court rejected the

argument, explaining sections 28 and 29 precluded the expert 

from testifying “that [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 could 
12

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 close to asking Dr. Gaines to 

opine on whether Kroll actually possessed the requisite mental 

state for the crime. Therefore, even 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. The 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 court 
13

consistently stated Kroll could explore those topics with his 

expert. Before 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 about

how this affected Kroll’s specific intent. Moreover, even after 

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 statements, defense counsel 

asked Dr. Gaines 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. Gaines 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 

his 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 is 

what you decide as the jury.” The 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 required 
14

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, there

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 

concerning “ ‘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. The 

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 offenses. 

Instead, the court repeatedly ruled Kroll could elicit expert 

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. Nieves 
15

(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 mistrial

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 another 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 unlikely the jury understood 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 prejudice from 
17

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 

jurors 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, the 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 

pp. 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 Ozuna, 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 turned 
19

on whether the jury believed Kroll’s mental illness and drug use 

caused him to act without the requisite intent. That Kroll had 

been incarcerated—either in connection with the charged crimes 

or a prior conviction—had little, if any, relevance 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, we 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.