Filed 10/29/15 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RANDY GARCIA,

Defendant and Appellant.

F068604

(Super. Ct. No. 12CM2042)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Robert S. 

Burns, Judge.

Michael Allen, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff 

and Respondent.

-ooOoo-

 

* Before Detjen, Acting P.J., Peña, J. and Smith, J.
2.

INTRODUCTION

Appellant Randy Garcia was convicted of first degree residential burglary. (Pen. 

Code, §§ 459/460, subd. (a).)

1 In addition, an enhancement allegation attached for three 

prior prison terms was found true (§ 667.5, subd. (b)). Appellant was sentenced to nine 

years in prison with credit for 376 days in custody. 

Appellant contends the trial court erred in denying his motion for mistrial after a 

police officer volunteered during his testimony that paperwork located in appellant’s 

vehicle indicated appellant was a possible suspect in other burglaries. Appellant argues 

that the testimony was incurably prejudicial. We disagree and affirm the judgment. 

FACTS

On June 14, 2012, Harold Van Heeringen left his home in Hanford, California 

around 4:30 a.m. At approximately 8:58 a.m., two of Van Heeringen’s neighbors, Bobby 

Robertson and Diana Trafny, saw people carry items out of Van Heeringen’s garage and 

load the items into a vehicle. Robertson saw two males and one female, one of the men 

drove off on Van Heeringen’s motorcycle; Trafny saw one male and one female. Trafny, 

approximately 10 to 15 feet away from the male, identified the male as appellant.2 

Appellant was carrying a box to a gold four-door Chevy Cavalier parked in Van 

Heeringen’s driveway. Trafny contacted Van Heeringen and then the police. 

Police Officer Anthony Pellouso from the Hanford Police Department arrived on 

scene and observed that the house appeared to have been rummaged through and doors 

appeared to have been broken into. When Van Heeringen arrived home, he discovered 

various items missing from his residence. Ten minutes after his arrival, Officer Pellouso 

 

1 All undesignated statutory references are to the Penal Code unless otherwise 

indicated. 

2 Robertson was unable to identify a suspect. Trafny was unable to positively 

identify appellant pursuant to an in-field show-up and misidentified him in a 

photographic lineup on June 14, 2012, but identified appellant at the courthouse both the 

day before trial and during trial. 
3.

responded to another residence where he located a gold Chevy Cavalier. Officer Pellouso 

searched the unlocked vehicle and discovered various items identified by Van Heeringen 

as some of the items taken from his home. Paperwork was also discovered in the vehicle 

containing appellant’s name. 

Appellant was questioned by Detective Mathews of the Hanford Police 

Department about the burglary. Appellant told Detective Mathews that his acquaintance, 

Juan, asked him for a ride that morning. Juan, an unidentified male, and appellant 

entered Van Heeringen’s residence after Juan brandished a firearm at appellant. Juan 

took appellant’s keys and appellant began walking. A friend who happened to drive by, 

Pete, gave appellant a ride back to Juan’s house, where appellant contacted his sister to 

tell her that someone stole his vehicle. 

After a 30-minute break in questioning, appellant indicated he initially went to the 

home of a man named “Weasel” (Jose Valdes), where Valdes and an unidentified male 

asked appellant for a ride. Valdes had brandished the firearm, forced appellant inside 

Van Heeringen’s garage, and taken appellant’s keys. Pete then drove appellant to 

Valdes’s home where appellant’s sister, a man named Guy Quinones, and Valdes’s 

daughter were waiting. Throughout police questioning, appellant referred to Juan and 

Valdes as two different people. 

Defense Case

At trial, appellant testified in his defense. On June 14, 2012, an acquaintance, 

Juan, called appellant repeatedly to ask for a ride. He testified that during police 

questioning, he learned that Juan was actually a man named Jose Valdes, who went by

the street moniker “Weasel.” Appellant picked up Juan, as well as another male Juan 

referred to as “Guy,” and drove them to a residential area using a Chevy Cavalier 

appellant borrowed.

3

 Juan brandished a firearm against appellant and forced him to exit 

 

3 Appellant referred to the Chevy Cavalier as his vehicle, this opinion does the same 

for purposes of clarity. 
4.

the vehicle and enter Van Heeringen’s garage. Juan took appellant’s car keys and then 

allowed him to leave. 

Appellant testified that after leaving Van Heeringen’s home, he was given a ride 

back to Juan’s home by his friend Pete. As he exited the vehicle, appellant saw his sister 

walking toward him. Appellant told his sister to contact the police and then left to meet 

with his parole officer for an appointment where he was picked up for questioning about 

the burglary. 

Appellant maintained during police questioning and at trial that he did not see a 

female participate in the burglary. 

Evidence of Prior Criminality 

During trial, the prosecution called Officer Anthony Pellouso to testify about his 

role in the burglary investigation. On direct examination, the prosecutor asked Officer 

Pellouso about the significance of a document recovered in appellant’s gold Chevy 

Cavalier. Officer Pellouso responded, “It had the name Randy Garcia on it, which was a 

possible suspect of other burglaries that we had prior to this one. And [he] was also the 

registered owner of the vehicle, I believe.” After the prosecution moved to admit items 

of evidence, a discussion was held outside the jury’s presence about Officer Pellouso’s 

testimony. 

Defense counsel moved for a mistrial. The trial court determined that the 

testimony was prejudicial, albeit inadvertently elicited, and withheld ruling on defense 

counsel’s motion until the following morning. The next day, the court ruled that an 

admonition would be sufficient to cure any prejudice from Officer Pellouso’s testimony. 

The court based its decision on the fact that the challenged testimony was brief and 

fleeting, it elicited no noticeable reaction from the jury, and the jury was already aware 

that appellant was a felon on parole. 

The trial court struck Officer Pellouso’s testimony referring to appellant as a 

possible suspect in other burglaries. The court further admonished the jury to disregard 
5.

the testimony, not consider it for any purpose, not discuss it, and not allow it to enter into 

their deliberations. Jurors indicated that they would not have difficulty following the 

court’s admonition. 

DENIAL OF MISTRIAL MOTION

A trial court should only grant a motion for mistrial when the opportunity for a 

fair trial has been irreparably lost and cannot be cured by admonition or instruction. 

(People v. Avila (2006) 38 Cal.4th 491, 573.) “‘“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.]’” (People v. Harris

(1994) 22 Cal.App.4th 1575, 1581; see also People v. Avila, supra, 38 Cal.4th at p. 573.) 

Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of 

discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.)

A witness’s inadvertent or volunteered statement can provide the basis for a 

finding of incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565

(Wharton).) A statement “exposing a jury to a defendant’s prior criminality presents the 

possibility of prejudicing a defendant’s case and rendering suspect the outcome of the 

trial.” (People v. Harris, supra, 22 Cal.App.4th at p. 1580 [witness’s reference to 

defendant’s parole officer on cross-examination resulted in harmless error where trial 

court struck the comment, instructed the jury to disregard it, and defendant’s guilt was 

overwhelming]; People v. Valdez, supra, 32 Cal.4th at p. 128 [although the issue was 

waived on appeal, curative instruction would have mitigated prejudice resulting from 

officer’s statement he interviewed defendant at Chino Institute, referencing additional 

criminality]; People v. Morgan (1978) 87 Cal.App.3d 59, 76 [testimony referring to

defendant’s parolee status was prejudicial but finding reversal inappropriate in light of 

defendant’s overwhelming guilt], disapproved on other grounds in People v. Kimble

(1988) 44 Cal.3d 480, 497-498.) 
6.

Here, Officer Pellouso testified that appellant was a possible suspect in other 

burglaries. While his brief statement referenced appellant’s possible involvement in 

other burglaries, the same type of crime appellant was on trial for, the trial court was well 

within its discretion to decline to declare a mistrial. There is insufficient evidence from 

which to conclude appellant’s chance of receiving a fair trial was irreparably damaged as 

a result of the foregoing statement. 

In Wharton, supra, 53 Cal.3d 522, our Supreme Court found no abuse of 

discretion in denying the defendant’s motion for mistrial. During trial, the court 

instructed the prosecutor to warn a witness, a jail inmate, that he could not implicate the 

defendant for injuries caused by another person. (Id. at p. 563.) The witness, who had 

visible facial injuries from a beating he sustained, made an unsolicited statement during 

his testimony that while the defendant did not beat him, he “got the word out.” (Id. at 

p. 564.) Outside the presence of the jury, defense counsel moved for mistrial based on 

the statement. (Ibid.) Following a weekend break, the court admonished the jury to 

disregard the witness’s statement. (Id. at p. 565.) 

The Supreme Court found the witness’s statement was not incurably prejudicial. 

(Wharton, supra, 53 Cal.3d at p. 566.) It reasoned that the defendant was not directly 

implicated in the beating based on the witness’s statement, a sufficient admonition was 

given to the jury, defense counsel’s argument that the jury would disregard the 

admonition after a weekend break was mere speculation, and most importantly, the 

witness clarified on cross-examination that a third party had beaten him. (Ibid.)

In both this case and Wharton, the challenged testimony was the result of 

inadvertent or volunteered statements which were not deliberately elicited by the 

prosecution. Similar to Wharton, the trial court here responded to Officer Pellouso’s 

brief and fleeting reference to appellant being a suspect in other burglaries with a strong 

and prompt admonition to the jury and by striking the challenged testimony. (Wharton, 

supra, 53 Cal.3d at p. 565.) Jurors indicated that they understood the admonition and 
7.

would not have a problem complying with it. The jury is presumed to be reasonable and 

to have followed the trial court’s instructions and advisements. (People v. Anzalone

(2013) 56 Cal.4th 545, 557; People v. Thomas (2012) 54 Cal.4th 908, 940; People v. 

Harris (1994) 9 Cal.4th 407, 426.) 

We further note that any prejudice resulting from Officer Pellouso’s testimony is 

outweighed by the strength of the evidence presented against appellant at trial. In People 

v. Rolon (1967) 66 Cal.2d 690, 693-694, the court held that “[a]n improper reference to a 

prior conviction may be grounds for reversal in itself [citations] but is nonprejudicial ‘in 

the light of a record which points convincingly to guilt....’ [Citation].” Here, the record 

points convincingly toward appellant’s guilt. 

Trafny identified appellant as the man she observed carrying a box from Van 

Heeringen’s garage to a gold Chevy Cavalier. Within one hour of Trafny’s call to police,

appellant’s gold Chevy Cavalier was located with items belonging to Van Heeringen 

inside the vehicle. Appellant told two different versions of the events of the burglary to 

the police. His testimony at trial was inconsistent with prior versions he told authorities, 

as well as the eyewitness testimony of Van Heeringen’s neighbors. 

During police questioning, appellant initially told Detective Mathews that he and 

two other men, Juan and an unidentified male, entered Van Heeringen’s residence after 

Juan brandished a firearm at him. After leaving Van Heeringen’s home, appellant was 

given a ride by his friend Pete, and then contacted his sister. 

After a 30-minute break in questioning, appellant changed his story. In this 

version of events, appellant referred to Juan and Jose Valdes (Weasel) as two separate 

people. Appellant indicated that he went over to Valdes’s home where he picked up 

Valdes and another unidentified male. Valdes brandished the firearm at appellant and 

then took appellant’s vehicle. In this version, Pete gave appellant a ride back to Valdes’s 

house where appellant’s sister, Guy Quinones, and Valdes’s daughter were waiting. 
8.

At trial, appellant testified that Juan and Valdes were actually the same person. 

He also indicated that Valdes had actually referred to the unidentified male participant as 

“Guy.” In each version, appellant claimed he never saw a female participant, contrary to 

the testimony of Van Heeringen’s neighbors. False statements by a defendant may be 

admitted to “support an inference of consciousness of guilt.” (People v. Showers (1968) 

68 Cal.2d 639, 643.) Appellant’s testimony, which conflicted with his own prior 

statements, as well as the testimony of eyewitnesses whose liberty interests were not at 

stake, support the inference that his versions were all false and reflect a consciousness of 

guilt. 

Appellant also testified that he was wearing a global positioning system ankle 

monitor at the time of the burglary because he was a felon on parole. The only 

reasonable inference to be drawn from his admission to being at the location of the 

burglary is that he had to manufacture an exculpatory version of events since his ankle 

monitor was tracking his location. Additionally, because the jury was already aware that 

appellant was a felon on parole, the fact that he was a suspect in another uncharged crime 

would not have been surprising for them to learn. 

Appellant’s proximity to the burglary, Trafny’s identification of appellant, the 

discovery of various items belonging to Van Heeringen in appellant’s vehicle, and 

appellant’s inconsistent version of events, point strongly toward his guilt. In light of the 

evidence against appellant, the brief and fleeting nature of the challenged testimony, the 

prompt and direct admonition by the court, and the jury’s indication that they would 

follow the admonition, we find that the trial court did not abuse its discretion in denying 

appellant’s motion for mistrial.

DISPOSITION

The judgment is affirmed.