Opinion
E065658
08-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JED ARTHUR QUINN GREEN, Defendant and Appellant.
Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1500501) OPINION APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. Affirmed. Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jed Arthur Quinn Green denied that he hit his live-in girlfriend Jessica Knox multiple times on her back with a baseball bat. The jury rejected that denial and found him guilty of corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) with the special allegation that he personally used a deadly and dangerous weapon during the commission of the crime (§ 12022, subd. (b)(1)), and assault with a deadly or dangerous weapon other than a firearm (§ 245, subd. (a)(1)). Defendant was sentenced to four years to be served in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant claims on appeal as follows:
1. The trial court erred by limiting his cross-examination of Knox denying him his Fifth, Sixth and Fourteenth Amendment rights to expose her motives to falsely accuse him, question her about her bipolar hallucinations and her desire to keep him from gaining custody of their son.
2. The trial court erred by denying his motion for mistrial based on misconduct of the prosecutor, who asked defendant if he confessed to hitting Knox to a pastor, as the prosecutor did not have a good faith belief such confession existed and it was not disclosed to the defense prior to trial.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY
As of May 17, 2015, Knox and defendant had dated for over one year; they had a son, J.G., together. J.G. was almost two years old at the time of trial. J.G. was born in Texas; defendant and Knox had lived together in Texas. Knox also had a daughter, J.K., who was five years old at the time of trial.
Knox explained that while they lived in Texas, defendant hit her once. He hit her in the face and "busted" her lip. She did not report the incident to the police. Defendant apologized and promised he would not hit her again.
Knox and defendant moved to defendant's mother's house on Yale Avenue in Hemet three months prior to May 17. J.G. and J.E. (collectively, the children) came with them. On May 17 Knox, defendant, defendant's mother and the children were at home. Knox explained that she and the children were getting ready to go to church that day. Defendant yelled at J.K. to clean up. Knox got angry with him and yelled at him to leave J.K. alone. Defendant put his hand around Knox's neck and tried to choke her. She pushed him away. Defendant got the baseball bat. He hit her five times on the back with the bat. She was turned away from him and did not see him coming. She was covering J.K. so J.K. would not get hit.
On cross-examination, Knox stated that defendant never actually put his hands around her neck. He tried but she was able to push him away. --------
Knox grabbed the children and ran out of the house. She went to the parking lot. Defendant came out and threw her cellular telephone on the ground. Noreen, a woman from Knox's church, came to pick them up for church. Knox told Noreen, after Noreen picked them up, what defendant did to her. Knox tried to stay for the church service but the pain was too much for her. She began to cry and walked out. Noreen took her to the hospital.
Knox went to Hemet Valley Hospital. Photographs were taken of three distinctive welt marks on her back. The welts lasted for over one week. When a police officer showed up at the hospital, Knox was scared. She did not want defendant to go to jail. Knox denied that she was under the influence of any controlled substance while she was in the hospital.
Knox told the responding officer, Jeremy Green, that defendant hit her with the bat at least five times. Knox claimed at trial that defendant's mother tried to stop defendant. Knox only went to the hospital because her back was hurting; she did not go to get defendant in trouble.
After she was released from the hospital, Knox was escorted by a police officer back to the apartment to get her belongings, and defendant was arrested. Knox and the children stayed with a woman from church until her church paid for her to move back to Texas. Defendant contacted her the day after the incident and apologized. Knox believed that if she went back with defendant he would hit her again.
Less than one month after Knox returned to Texas, the children were placed in foster care. Defendant visited with J.G. through the children's services department. As of the time of trial, the children were in foster homes. The children being taken away was not due to the incident in this case.
Defendant contacted Knox on two occasions after Knox arrived in California the week before her testimony in court. They talked about how they were going to get back custody of J.G. She denied they talked about the case. Later, Knox claimed that defendant told her not to tell the truth about what occurred when they talked on the phone. She claimed she did not say anything at first because she did not want anyone to know; she was afraid it would cause a problem. She believed that defendant would get in trouble for having said that to her.
At approximately 2:00 p.m. on May 17, Officer Green was called to the Hemet Valley Hospital based on a report of domestic violence. He met with Knox at the hospital. Knox had her two young children with her. She told Officer Green that the incident had occurred at the apartment she shared with defendant on Yale Avenue in Hemet.
While Officer Green spoke with Knox she did not appear to be under the influence of any controlled substance. Officer Green admitted he was not looking for the symptoms. Knox told Officer Green that she and defendant got into an argument over J.K. not cleaning up her bed. Defendant grabbed Knox and wrapped both of his hands around her throat. She was able to push him away. Defendant told her that he was going to kill her. Defendant then grabbed a bat and struck her five times on the back. Officer Green observed three marks on Knox's back. Officer Green believed her injuries were consistent with being hit with the bat because the marks were long and slender. They appeared to be recent injuries. Officer Green was not involved in arresting defendant.
Sylvia Perez was a detective employed by the Riverside County Sheriff's Department. She testified as an expert in domestic violence and "Intimate Partner Battering." Relevant here, she testified that a victim of domestic violence may delay reporting abuse because of economic reasons or because of threats from the abuser. Additionally, domestic violence victims try to minimize their injuries and the abuse. Knox's medical records were admitted.
B. DEFENSE
Hemet Police Officer Matthew Hiatt was involved in the arrest of defendant. Knox had requested that an officer accompany her to the apartment so she could retrieve her personal belongings. Knox opened the door to the apartment with her key. Officer Hiatt did not find a bat or broken cellular telephone inside the apartment. Defendant was arrested.
Defendant testified. He admitted to having suffered two prior domestic violence convictions in 1999 and 2002. He claimed to have changed since that time. He had a troubled childhood.
Defendant met Knox in Texas. Defendant became aware of Knox's mental health issues after they started dating. Her symptoms included hearing things, being paranoid and being aggressive. Defendant insisted that Knox was not able to get the medication to control her symptoms in California. When the incident occurred, Knox was not on her medication and was exhibiting signs of schizophrenia. Defendant also believed that Knox was using methamphetamine immediately leading up to the incident.
The day before the incident, defendant had told Knox to leave the apartment and go somewhere to calm down because Knox had been yelling at him. Knox left with the children but returned late that night. Defendant asked Knox where she had been and she got angry. Defendant got close to Knox and smelled liquor on her. He also saw a bruise on her thigh and back. Defendant continued to ask Knox where she had been and she told him not to worry about it.
Defendant was upset and grabbed Knox. They were arguing. Defendant put her in a bear hug and she tried to get away. Defendant was afraid she may hit him or stab him with a knife she usually had for her protection. Knox knocked him to the ground. Knox then grabbed her keys and purse. She left with the children. He denied he ever hit her with a baseball bat.
Defendant denied his mother was in the apartment during the altercation. Defendant claimed that when Knox returned with the police to retrieve her belongings, she was screaming at him. He denied that he had ever owned a bat. He never hit Knox that night and never broke her cellular phone.
Defendant insisted that he told Knox to tell the truth in court when they spoke by phone. Defendant admitted he "busted" Knox's lip while they lived in Texas. She was suffering symptoms of schizophrenia at the time and they got in an argument because she was also taking methamphetamine.
Defendant spoke with Officer Green at the police station on the day after the incident. Officer Green told defendant he wanted to talk to him about the accusation of domestic violence. Defendant claimed he had memory problems. He told Officer Green that Knox grabbed a knife and he wrapped his arms around her to restrain her. Defendant insisted that Officer Green saw that he was cut by the knife. Defendant did not know why Officer Green did not recall seeing the cut. Defendant insisted the officers who arrested him saw the knife with his blood on it in his apartment.
C. REBUTTAL
Officer Green was recalled and testified defendant told him that Knox had grabbed a knife and he had put her in a bear hug. He did not recall that defendant had any stab marks.
Jocelyn Cases was a nurse practitioner who was employed at the Hemet Valley Hospital. She treated Knox at approximately 2:00 p.m. on May 17. Knox told her that Knox's boyfriend had hit her with a bat. Her injuries were consistent with being hit with a bat and appeared to have been received recently. Cases qualified that recent meant in the prior six weeks. Cases did not observe that Knox was under the influence of any controlled substance. Knox denied that she was taking any medication including for schizophrenia. Knox never reported she had been strangled or choked. Cases did not observe any symptoms of schizophrenia.
Noreen Hicks knew Knox from church. She did not know defendant. On May 17, around 7:15 a.m., Hicks planned to pick up Knox and the children to go to church. She received a call from Knox before she picked her up and Knox was crying. Knox told Hicks that her boyfriend had hit her with a bat. Hicks picked her up and she was still crying. Hicks saw a bruise on her arm. Knox wanted to go to church. After church, Hicks observed the injuries on Knox's back and thought they were severe. She immediately took her to the hospital. Hicks encouraged Knox to call the police but did not take her to the police station. Hicks did not call the police; they just showed up at the hospital. After Knox was released, Hicks found her and the children a safe place to stay. She also arranged to have her and Knox be accompanied by an officer to pick up Knox's things at Knox's apartment.
DISCUSSION
A. DENIAL OF CROSS-EXAMINATION
Defendant claims that the trial court's refusal to permit him to cross-examine Knox concerning her motives to fabricate, her mental state related to her bipolar disorder and her use of controlled substances as that impacted her child custody issue, was an abuse of discretion and denied him his right to a fair trial.
1. ADDITIONAL FACTUAL BACKGROUND
During direct examination, Knox was asked by the prosecutor, "With regard to Child Protective Services in Texas, does this case have anything to do with their case and their protection of your children." Knox replied "No." Knox explained her case worker had asked about J.G. and J.K. being given to defendant. Knox told her what happened because she was afraid for their safety if they were with defendant. She would rather have the children in child protective services custody than with defendant.
During cross-examination, defendant's counsel asked Knox why the children had been taken from her in Texas. The prosecutor objected and a hearing was held outside the presence of the jury. The trial court stated, "You're lucky that I've presided over dependency court for 18 months. Both of you are leaving the most important part out of these proceedings. It is not only between who gets custody between Ms. Knox [and defendant]. Both of you are forgetting that the State of Texas will have a definite say. The State of Texas may terminate the witness' parental rights. The State of Texas may also terminate [defendant's] parental rights. And the State of Texas can retain custody of both of these children. ¶ So this is not a typical custody battle where one parent runs off to another state, runs to the courtroom and says, 'Judge, I want to have custody of this child because [defendant] is a bad father.' The State of Texas has made a prima facia [sic] showing that [defendant] is a bad parent. The State of Texas has also made a prima facia [sic] showing that the mother is a bad mother. So this is not your typical family law custody battle. So therefore it is not relevant. There is no motive because it's not up to [defendant]. It is the State of Texas because the State of Texas has custody and control at this time of both children. So who wants to argue that my analysis is incorrect?" The prosecutor declined to make any comment.
Defendant's counsel stated that if Knox were to testify truthfully, she would admit to using drugs at the time of the incident and that drug use "spilled over to Texas," and that is why she lost custody of the children. Defendant's counsel wanted to inquire about her drug use and/or mental health issues that might have led to losing custody of the children.
The trial court responded that the only relevant time period was whether she was under the influence of some substance on May 17, which affected her ability to recall what actually happened. Whether or not the children were taken in Texas because of Knox's use of drugs was irrelevant. Defendant's counsel responded, "So long as I'm obviously permitted to get into a line of questioning about her drug use at the time or slightly before this incident, and I think if she were to deny any kind of drug use, that I would be permitted to impeach." The trial court did not see the relevance of her drug use prior to the incident.
Defendant's counsel responded that defendant felt Knox was an unfit mother because she was on drugs. Knox would leave the home and return under the influence. The trial court inquired, "So let me get your logic straight. So she uses drugs, [defendant] gets mad, [defendant] allegedly hits her with a bat, and—because we have not heard evidence that these were self-inflicted wounds, so once again I don't understand your motive. She indicated that these wounds were not self-inflicted. They were inflicted by a third party, and that was [defendant]. That's the status of the evidence. And you're stating that her motive is to fabricate all of this because she used drugs on or before May 17th?" Defense counsel responded, "I think it was part of the reason, yes." The trial court denied the request.
Cross-examination resumed. Defendant's counsel asked if Knox had been using prescription medication at or near the time of the incident. Knox acknowledged she took medication to control her bipolar schizophrenia. Knox explained that as long as she took her medication, she was not affected by her mental illness. Knox was asked "Okay. So aside from the bipolor and schizophrenia that you suffer from and you were taking medication, had you been taking any illegal drugs?" There was no objection. Knox responded "No." Defendant's counsel then asked, "And your testimony today is that you didn't have any issues or any problems or addictions with illegal drugs back at that time?" The prosecutor objected and it was sustained.
Later, defendant's counsel asked if the argument between her and defendant was because of her drug use and the objection was sustained. Defendant's counsel then asked if it was her testimony that the argument had nothing to do with suspected drug use and Knox adamantly denied the argument was over her drug use. On redirect, Knox insisted she was taking her medication at the time of the incident. She insisted her memory of the events was not altered based on taking the medication.
Defendant's counsel sought to cross-examine Knox using the medical records subpoenaed by the prosecutor. Defendant's counsel only wanted to refer to one page. The prosecutor advised the trial court, "I would ask that the Court take a look at Page 6. Defense apparently wishes to inquire of the witness with regard to whoever took the notes or made the inquiry into the notes—made a note that indicates altered state of consciousness in the—in the medical file. This witness isn't going to be able to testify as to why somebody wrote that or didn't write that or— [¶] . . . [¶] . . . or came to that conclusion. So again, I have no objection to the foundation for medical records, but in terms of its meaning or evaluation, it doesn't appear that we have an appropriate witness here that can establish it." Defendant's counsel responded, "The medical record that states that there is a—as far as the neurological condition is concerned, there is an altered level of consciousness. Obviously, the jury can take whatever weight from that statement that they wish."
The trial court stated it was not a statement made by Knox. Defendant's counsel responded that Knox had denied that she was under the influence that day. He wanted to ask, "Well, your medical records indicate that you have an altered level of consciousness." The trial court asked, "So how do we come to the conclusion that altered state of consciousness means that she is under the influence of a controlled substance? What reasonable—how do you tie that to be a reasonable inference?"
Defendant's counsel responded, "I think she is under—she is suffering from an altered state of consciousness. It could be a variety of reasons, but I want to put that to her, at least allow her to see that to see if she is able to shed any light as to why she was documented as having an altered state of consciousness. She might contradict herself and say, 'Yes, okay. I see, and actually I was taking drugs,' or 'Yes, I was on medication,' or—." The trial court ruled, "I know what you're trying to do, but I don't think it's appropriate. It's not appropriate by the rules of evidence that I was taught in law school. If you have the nurse up here, the person that actually put that down or the doctor, physician, you're good to go. But you don't. ¶ So that's inappropriate. It's not proper. I'll note your objection, but it's not proper according to the rules of evidence."
Defendant's counsel then asked if he could have her look at the report and read for the jury what was written regarding her neurological condition. The trial court dismissed that request stating, "You're assuming she understands what all that means because, remember, she didn't author the report. It was authored by someone who has medical training. This witness has a GED, all right? Keep that in mind. So I don't think it's appropriate." Defendant's counsel indicated that he had no further cross-examination. The trial court responded, "You sure? There is other stuff if you want to. I mean, I'm just precluding you from doing that area. If you want to discuss other things, you may. I'm not shutting you down."
Cases eventually testified about the medical reports. She indicated that the statement in Knox's medical report where it stated "altered level of consciousness" was a typographical error because it should have reflected that Knox denied an altered level of consciousness.
2. ANALYSIS
" '[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal. Indeed, . . . to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment's guarantee of due process of law.' " (People v. Brown (2003) 31 Cal.4th 518, 538.) " 'The constitutional right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility.' " (People v. Ardoin (2011) 196 Cal.App.4th 102, 118.) " 'As the high court has explained, cross-examination is required in order "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness." ' " (Ibid.)
However, " '[T]he accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.' " (People v. Ayala (2000) 23 Cal.4th 225, 269.) The trial court may restrict cross-examination based on concerns about harassment, prejudice, confusion of the issues or interrogation that is only marginally relevant. (People v. Hillhouse (2002) 27 Cal.4th 469, 494.)
" ' "As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." ' " (People v. Gurule (2002) 28 Cal.4th 557, 620.)
Defendant first complains that the trial court restricted his ability to cross-examine Knox on the reason the children were taken away in Texas. Defendant felt that if Knox testified truthfully, she would disclose the reason they were taken was because of her illegal drug use and mental health. He insists that this restriction kept him from arguing that her motive in accusing defendant of hitting her was to gain custody of J.G.
Such evidence as to why the children were taken from Knox was properly excluded as irrelevant. Knox testified that she lost custody of the children less than a month after the incident with defendant. Knox's drug use once she moved to Texas was not relevant as to whether she was under the influence at the time she claimed defendant hit her with a bat. Additionally, this did not restrict defendant's ability to question Knox whether she in fact was accusing defendant of hitting her because she was concerned he would get custody of J.G. She admitted that she did not want defendant to gain custody of J.G. Defendant could argue that Knox's motive in accusing defendant was that she wanted custody of J.G. without relying on why she lost custody of the children. The exclusion of her drug use did not improperly restrict his ability to question her motive in accusing defendant of hitting her.
Defendant complains that the jury was further prevented from learning about Knox's background, including whether she was considering returning to Texas even before her most recent argument with defendant; why she spent time away from the home to be with homeless people in the park; how her bipolar disorder caused her to hallucinate that characters on the television intended to harm her; and how that might have impact on her ability to recall the events of that Sunday morning or blame appellant instead of some person she might have met at the park.
First, defendant never asked Knox whether she had decided to move to Texas even before defendant hit her, or why she spent time at the park with homeless people. As a result, there is nothing in the record to support that her response would have been excluded by the trial court. Moreover, defendant was able to ask Knox if she suffered from bipolar schizophrenia and she responded yes. She also stated it was controlled by medication. "Mental illness, insofar as it affects a witness's ability to accurately perceive, remember, or describe the events about which the witness is testifying, or establishes a bias against the defendant, is relevant to credibility and may be established by cross-examination concerning the witness's clinical history of diagnosis or treatment." (People v. Anderson (2001) 25 Cal.4th 543, 608.)
Once Knox admitted she suffered from schizophrenia, defendant could have asked Knox if she hallucinated, but did not. The only cross-examination restricted by the trial court was what the medical record meant when it indicated "altered state of consciousness" because Knox did not write the comment. This did not restrict defendant's ability to question Knox about her drug use or mental health at the time of the offense.
Additionally, defendant was allowed to ask Knox about her illegal drug use. Knox was asked if the argument between the two of them was over her drug use, which she adamantly denied. Knox denied any drug use and any further examination would not have revealed a different answer.
Even if defendant could show that his right to cross-examine Knox was improperly restricted, "The test for determining whether a trial court has abused its discretion in restricting defense cross-examination of a prosecution witness is whether a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Anderson, supra, 25 Cal.4th 608; People v. King (2010) 183 Cal.App.4th 1281, 1314-1315.)
Here, the jury was informed of Knox's mental illness. Defendant was able to get Knox to admit Knox suffered from bipolar schizophrenia and that it was controlled by medication. The jury was aware that Knox suffered from a mental illness. Cases testified that Knox denied taking any medication to control her symptoms. Moreover, defense counsel pointed out that Knox had contradictory testimony as to whether defendant put his hands around her neck and also that she had no marks on her neck. Additionally, Knox never told Officer Green that defendant had broken her cellular telephone, that defendant had committed a prior act of violence against her, or that defendant's mother was present during the altercation. The inconsistencies reasonably could have been interpreted by the jury to mean that she was not telling the truth at trial.
Based on the foregoing, the jury would not have had a significantly different impression of Knox's credibility had defendant been able to explore why the children were taken from her in Texas, or further inquiry regarding her mental illness.
B. CONFESSION LETTER
Defendant contends that the trial court erred by refusing to grant his motion for a mistrial based on the prosecutor asking defendant during cross-examination if defendant sent a confession letter to the pastor at a church attended by his mother and Knox. Defendant insists that the information was not disclosed to him prior to the question being asked and the prosecutor did not have a good faith belief to ask the question. Such prosecutorial misconduct requires reversal and the trial court's denial of his motion for mistrial was an abuse of its discretion.
1. ADDITIONAL FACTUAL BACKGROUND
After Knox testified, the trial court adjourned on a Friday to return on Monday morning. On Monday, the prosecutor advised the trial court that over the weekend he had been able to determine the last name of the woman who took Knox to the hospital. It was Hicks. She was being interviewed by the district attorney's investigator. The report would be emailed immediately to defense counsel as soon as the investigator was finished.
After the lunch break on Monday morning, defense counsel stated he had reviewed the interview with Hicks and objected to Hicks being called as a witness, arguing the information should have been obtained prior to trial. Defense counsel complained he was not prepared to cross-exam the witness. The prosecutor insisted that the first time he became aware of Hicks was when Knox testified on the Friday before that she was taken to church by "Noreen." The prosecutor finally was able to get Noreen's last name and phone number on Saturday evening. The first opportunity to interview Hicks was on Monday morning.
The trial court stated it would allow Hicks to be called as a witness. She was not discovered until trial and she was available for defense counsel to interview. The trial court agreed to adjourn court early so that defense counsel would have time to prepare.
Thereafter, during cross-examination of defendant, the prosecutor asked the name of the church that his mother and Knox attended. He responded it was Parkway Baptist Church. Defendant did not attend the church. Defendant knew that the pastor at the church was named Kirk Beard. Defendant indicated that Pastor Beard came to their house every weekend. The following exchange then occurred:
"[Prosecutor]: And isn't it true that after your arrest for abusing Jessica Knox, you actually wrote to Pastor Beard?
"[Defendant]: Yes.
"[Prosecutor]: And isn't it true, in writing to him, you admitted to him that you committed the crime against Jessica Knox?
"[Defendant]: No, I did not. I don't remember writing no letter to—I asked him can he help me get to the state of Texas to see my child."
Defense counsel asked for a chamber's conference. Defense counsel objected that he had no idea where the information about the letter was obtained. It was clearly based on information possessed by the prosecution that defense counsel was not given. The trial court stated that this was impeachment evidence that the defense needed to be given and asked the prosecutor for an offer of proof.
The prosecutor explained that he did not have the letter and did not "have any statements as to what the letter contained." The prosecutor had told defense counsel prior to court that morning that he found Hicks by speaking with Pastor Beard. On Saturday, Pastor Beard told the prosecutor that he knew defendant's family better than he knew defendant, but admitted to having contact with defendant. When the prosecutor asked him what contact, specifically, Pastor Beard told the prosecutor that defendant had written him a letter. Pastor Beard was uncomfortable talking with the prosecutor about the letter. The prosecutor then asked Pastor Beard what was in the letter. He paused for five or six seconds and then said, "I'd rather not say." The prosecutor asked Pastor Beard if defendant confessed about the crime against Knox. Based on Pastor Beard's body language, the prosecutor believed that the letter contained a confession.
The prosecutor did not believe that this information was privileged. Pastor Beard could come into court and testify about the communication and the letter. The prosecutor concluded that he had good faith to ask the question and defense counsel had been advised that the prosecutor had been in contact with Pastor Beard.
Defense counsel confirmed that just before the afternoon session the prosecutor told him he found out about Hicks from Pastor Beard, because he spoke with Pastor Beard on Saturday. Defense counsel argued that the prosecutor spoke with Pastor Beard on Saturday and found out about the letter and possible confession. None of that information was disclosed to defense counsel.
The trial court first indicated that it thought the prosecutor had a good faith belief to ask the question. The trial court then asked if Pastor Beard was going to be subpoenaed and interviewed. Defense counsel stated that he was doing his best to speak to Pastor Beard but that a mistrial was required. Defense counsel argued that a written confession was "huge" and should have been provided. The trial court noted that the prosecutor could not anticipate what Knox would say during trial. Defense counsel believed the information from the church could have been obtained earlier. Defense counsel again asked for mistrial.
The trial court stated, "You can cross-examine as to whether or not if there's a letter what the contents were in the letter. Just ask him the question. Whether there was a letter is not evidence. I don't think the DA is producing the letter at this time, if one exists." Defense counsel did not feel comfortable asking defendant the question without further information. Defense counsel needed more time to speak with Pastor Beard. A mistrial was required.
The trial court felt the information was proper impeachment whether or not Pastor Beard was going to testify. The trial court felt the information was not discovered until the middle of trial and was not relevant until defendant chose to testify. Defense counsel argued the prosecutor would have introduced the evidence even if defendant did not testify.
The trial court denied the motion for mistrial finding, "No. I don't know how they would lay foundation to that. But, no, I think it's proper impeachment. Your objection is noted. But, I mean, obviously you haven't seen the letter. You can't talk about something that you haven't personally seen or handed over to the defense. As a matter of fact all it was, if anything, was a silent admission. There's two ways interpreting that. You can cross-examine whether or not there was any communication between the Pastor and the defendant that's relevant. That's proper impeachment."
When cross-examination resumed, the prosecutor asked if defendant had written to Pastor Beard. Defendant responded that he had written to the church several times for the purpose of obtaining money to go to Texas to see J.G. Defendant was unable to obtain the funds because he was not a member of the church. Pastor Beard was not called as a witness.
2. ANALYSIS
Defendant makes several claims in regards to the question by the prosecutor if defendant had written a confession letter to Pastor Beard. Initially, defendant argues that the prosecutor committed misconduct by asking defendant if he confessed to Pastor Beard without good faith that such a confession existed. The People claim that defendant waived his claim of prosecutorial misconduct because he did not object on this ground during the chambers conference and did not request an admonition be given to the jury. In response, defendant insists that if he waived the claim, he received ineffective assistance of counsel.
Defendant also claims that the prosecutor violated section 1054.1 by failing to disclose the information about the letter to defense counsel. The People essentially concede that the letter was not disclosed but argue any failure to disclose was not prejudicial. In addition, defendant argues that the trial court abused its discretion by failing to grant his motion for mistrial.
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Carter (2005) 36 Cal.4th 1215, 1263.) "[I]n order to preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection to the alleged misconduct and request the jury be admonished to disregard it." (People v. Seumanu (2015) 61 Cal.4th 1293, 1339.)
" 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] . . . [The defendant] bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.)
Section 1054.1 provides "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶] . . . [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial."
Reversal is required for failure to disclose evidence only if " ' "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." ' " (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)
" 'Denial of a motion for a mistrial is reviewed for abuse of discretion and should be granted " 'only when a party's chances of receiving a fair trial have been irreparably damaged.' " ' [Citation.] ' " '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.' " ' " (People v. Tatum (2016) 4 Cal.App.5th 1125, 1130.)
Here, we need not address the merits of each of defendant's claims. Even if there was prosecutorial misconduct, or there was a waiver of the misconduct claim resulting in a claim of ineffective assistance of counsel, or there was a failure to disclose evidence pursuant to section 1054.1, or there was an improper denial of the motion for mistrial, any of these errors require an assessment of prejudice. As such, we will only address whether the question by the prosecutor was prejudicial. The standards of prejudice are set forth, ante.
Here, the prosecutor asked only one question about whether defendant had written a letter to Pastor Beard confessing to the crime against Knox. There was no other evidence presented on the matter. The jury was instructed at the end of the trial, "Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses answers are evidence. The attorneys' questions are significant only if they help you to understand the witnesses answers. [¶] Do not assume that something is true just because one of the attorneys asked a question that suggested it was true."
We must presume that the jury followed the instructions. (People v. Montes (2014) 58 Cal.4th 809, 888.) The prosecutor did not repeat the question, no evidence of the letter was admitted and the prosecutor did not mention the letter in closing argument. This brief mention of the letter did not result in the admission of such prejudicial information that the results of the trial would have been different had the question not been asked.
Additionally, defendant explained that he wrote a letter to the church asking for money to get to Texas to see his son. He was denied the money because he was not a member of the church. This was reasonable considering the fact that Knox testified she obtained money from the church to get to Texas. Defendant was not prejudiced by the prosecutor's question.
Finally, the evidence that defendant hit Knox with a baseball bat was strong. Knox almost immediately told Hicks that defendant had hit her with a bat. She told Cases at the hospital that defendant had hit her with a bat. Her injuries were consistent with being been recently hit with a bat. She also told Officer Green that defendant had hit her with a bat. Knox's steady reporting of how she sustained the marks on her back, and the fact this was consistent with the injuries, strongly supported the jury verdict in this case.
Moreover, defendant acknowledged that he had two previous convictions for domestic violence. Also, defendant admitted that he hit Knox while they were living in Texas and "busted" her lip. Defendant's history of domestic violence convictions showed he had a propensity to commit these types of offenses. (Evid. Code, § 1109.) Based on the evidence, it is not reasonably probable that defendant would have received a more favorable verdict had the prosecutor not asked the question.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.