Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA079174. James B. Pierce, Judge.
Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Tannaz Kouhpainezhad, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Defendant Eric Hester appeals from the judgment entered following a jury trial in which he was convicted of forcible rape, forcible sodomy, and criminal threats. Defendant contends that numerous instances of prejudicial prosecutorial misconduct in argument require reversal of the judgment. We agree. The prosecutor committed prejudicial misconduct by arguing matters not in evidence, mischaracterizing the evidence, appealing to the jury’s passion and prejudice, and suggesting that the jury convict defendant to prevent him from committing future crimes.
BACKGROUND
C.G. and her friend Amy moved into an apartment in Long Beach in July of 2006. (Unless otherwise noted, all date references pertain to 2006.) While they were moving in, a man approached C.G. and asked if she had a boyfriend, if she wanted to go out with him, and if only women would be living in the apartment. C.G. was frightened and told the man she and her roommate had boyfriends who would be “there all the time.” As he walked away, the man said he would be seeing her soon. She did not give the man her phone number.
On the night of August 5 and the early morning hours of August 6, a man known as Solo visited Amy in the apartment. C.G. sat with them in the living room as they drank whiskey and smoked marijuana. Amy had a sip of whiskey to humor Solo, but she did not smoke. Solo left about 2:00 a.m. and C.G. closed and locked the doors and windows and both women went to bed.
Sometime later, C.G. awakened to the sound of someone walking around inside the apartment. She got up to investigate and was met at her bedroom door by a man with something covering his face. C.G. asked who he was. He pushed her back into her room, placed a double-edged knife against her throat and asked, “‘Do you feel this?’” The man told her to get down onto the floor and to “shut up.” C.G. complied. The man made her get onto her knees, stuffed a pair of her underwear in her mouth, and removed her pajama pants, which “were like boxers.” She testified she “heard a condom, ” meaning she “heard a wrapper.” The man sodomized her, then raped her for about 10 minutes. Afterward, he wiped her with something, tied her hands with her bra, told her “not to say anything because he had [her] I.D., ” and left.
C.G. freed her hands, crawled to Amy’s bedroom, and screamed. Amy testified C.G. was on the floor, rocking back and forth and crying. C.G. told Amy, “‘A man broke into our house, and he had a knife, and he raped me, and he said that if we called the cops or something that he was going to kill... me.’” C.G. refused to get up from the floor. Amy phoned 911. A recording of her call was played repeatedly at trial.
Long Beach Police officers arrived at the apartment and C.G. made a statement to an officer. The police took her to a hospital for a sexual assault examination in which “a lot of uncomfortable pictures” were taken. The prosecutor asked C.G. why she allowed “them to do that.” She responded, “Because if there’s any chance of the person being caught, they needed to do that.” The nurse who examined C.G. testified that her findings, including several tears around C.G.’s anus, were consistent with C.G.’s statement that she had been sodomized and raped. The nurse took a number of swabs which were ultimately sent for DNA analysis. In August of 2008, defendant was arrested after he was identified as a match for the male profile developed through DNA analysis.
C.G. testified that at a later, unspecified time, she found that the boxer-style pajama pants she had been wearing before the sexual assault and her purse, which contained her I.D., were missing. She also testified that the condom wrapper and the unidentified item her assailant had wiped her with were gone.
Police officers who examined C.G.’s apartment on August 6 found no signs of forced entry. Detective Jennifer Kearns testified she could not get inside the apartment, but noticed a lock box in the back of the building, so she called the apartment manager to see if there was a key in the lock box. The prosecutor attempted to ask Kearns what she learned “in regards to access to keys to apartments, ” but the court sustained defendant’s hearsay objection. The court then asked Kearns whether she tried “any of those keys” herself. She responded, “Actually, there wasn’t a key in the lock box. He says once someone moves in-” The court interrupted Kearns, and the prosecutor asked no further questions.
Defendant testified that on August 6 he was living with his mother in an apartment located just across an alley from C.G.’s apartment, about 30 yards away. He and his mother had been living there a little more than a year, and he continued to live there until the beginning of 2008. He met C.G. and Amy when they were moving in. He talked to C.G. and told her about the neighborhood, “what to look out for, ” where he lived, and where things were in the area. He asked for her telephone number and stored it in his “chirp phone, ” which was a “walkie-talking type phone.”
On one occasion before August 6, defendant had been in the living room of C.G.’s apartment with C.G. and Amy. On August 6, he called C.G. on his chirp phone and asked if they could “hang out” after he got off work. She said yes. She told him to knock on her door. He went over to her apartment sometime around 1:00 a.m. and knocked on the front door. The porch light went on, C.G. opened the door, and he went inside. He saw that her eyes were red. C.G. told him to be quiet and not speak loudly. She led him into her bedroom and they sat down on some blankets on the floor that appeared to be what she was using for a bed. They talked for awhile about work, then he gave her a massage. She removed her shorts and they had consensual vaginal intercourse. At some point C.G. asked him to place “fingers inside her bottom, ” and he did so after she demonstrated to him what she wanted. When they finished, he noticed his condom had broken. He threw it away in a trash can in the bathroom. C.G. wiped herself with a towel and threw it on a pile of laundry. She said she was going to sleep. Defendant hugged her and went home.
On cross-examination, the prosecutor asked defendant if previously he had been in C.G.’s apartment with a maintenance person. Defendant said he had not. Defendant testified that around the time he and his mother moved into the neighborhood, the apartment that C.G. later moved into was vacant. He saw a “guy... working out there” in the yard and asked how many bedrooms were in the vacant apartment. The “guy” told him it was “two or one.” C.G. did not live there at the time.
Defendant admitted on cross-examination that he had been convicted of forgery in 2004 and robbery in 2001.
C.G. testified that on August 6 she did not have a chirp phone or receive a call on a chirp phone. Records for C.G.’s mobile phone showed she made a one-minute call to a friend in Temecula at 11:15 p.m. on August 5, but there were no incoming calls between “around 11:00 p.m. on the 5th and the beginning of the 6th.” C.G. denied that she had ever given defendant her phone number and denied defendant’s version of the events of August 5 and 6.
The jury convicted defendant of forcible rape, forcible sodomy, and criminal threats and returned true findings on allegations that defendant personally used a knife in the commission of each of these crimes. (Pen. Code, §§ 667.61, subds. (a), (b), (e), 12022, subd. (b)(1); all undesignated statutory references pertain to the Penal Code.) The jury could not reach a verdict on a charge of first degree burglary or allegations that the two sex crimes occurred during the commission of a first degree burglary. Defendant admitted allegations that he had suffered a prior robbery conviction that constituted both a prior serious felony (§ 667, subd. (a)(1)) and a “strike” under the “Three Strikes” law. He also admitted allegations that he had served two prior prison terms within the scope of section 667.5, subdivision (b). The court sentenced defendant to a second strike term of 66 years to life in prison, consisting of two consecutive, doubled terms of 15 years to life under section 667.61, subdivision (b), plus 6 years for the prior serious felony and prior prison term enhancement.
DISCUSSION
Defendant contends that Deputy District Attorney Robert Hight committed prejudicial misconduct in his rebuttal argument by repeatedly mischaracterizing the record, misleading the jury, and making an argument that was both calculated to arouse the jury’s passion and prejudice and invited the jury to consider punishment as a factor in determining guilt. The Attorney General argues that the challenged statements were fair responses to defense counsel’s argument, fair comment on the evidence, and not reasonably likely to mislead the jury.
A prosecutor’s misconduct violates due process if it infects a trial with unfairness. (People v. Harrison (2005) 35 Cal.4th 208, 242 (Harrison).) Less egregious conduct by a prosecutor may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.)
If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. (People v. Dennis (1998) 17 Cal.4th 468, 522 (Dennis); Peoplev.Benson (1990) 52 Cal.3d 754, 793 (Benson).) A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. (Dennis, supra, 17 Cal.4th at p. 522.) But a prosecutor may not suggest the existence of “facts” outside of the record by arguing matters not in evidence (Benson, supra, 52 Cal.3d at pp. 794–795); mischaracterize the evidence (Harrison, supra, 35 Cal.4th at p. 249; People v. Hill (1998) 17 Cal.4th 800, 823 (Hill)); appeal to the jury’s sympathy, passion, or prejudice (People v. Fields (1983) 35 Cal.3d 329, 362; People v. Mendoza (1974) 37 Cal.App.3d 717, 727); or suggest the jury should consider a defendant’s possible punishment (People v. Holt (1984) 37 Cal.3d 436, 458). Remarks by a prosecutor that would otherwise be improper may be permissible if they are fairly responsive to argument by defense counsel and based upon the record. (Peoplev.McDaniel (1976) 16 Cal.3d 156, 177 (McDaniel).) While a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629] (Berger).)
1. The arguments in controversy
Defendant bases his prosecutorial misconduct argument on four statements by Hight. Hight made the first two statements in issue at the start of the rebuttal argument. He stated, “I want to start out by just a thought of it’s almost a perfect crime: mask, gloves, acquired a key, has a rubber.” Hight continued, “Defense counsel says [defendant] didn’t run. Remember that? Where’s the evidence he didn’t run? We don’t know. Statements of counsel are not evidence by the way.” Defense counsel asked for a sidebar conference, at which he moved for a mistrial based upon Hight misleading the jury by arguing that defendant ran. Defense counsel did not mention the “acquired a key” argument. The court denied the motion for mistrial, characterized Hight’s argument as “totally improper, ” and directed him “not to argue any running. There’s no evidence of running, ” but did not admonish the jury.
Hight made the third controversial statement a little later, when he returned to his “perfect crime” and access to a key themes: “It happened, I suggest to you-it’s your decision-that somebody that had the perfect scenario. Someone had contact with an out of county management company, the maintenance people cleaning in that apartment, asked about that particular apartment. There’s a lock box with no key in the lock box-” Defense counsel again asked for a conference at sidebar and objected that Hight was knowingly misstating the evidence and misleading the jury. The court told Hight to “wrap it up.”
Hight made the fourth argument in issue near the conclusion of his rebuttal argument: “And I-I’d like you just last to think of the complaining witness. And think of her behavior, and think of her willingness. Do you remember what she said why she’s testifying? She’s testifying so this won’t happen to anybody else. That’s why she’s under oath telling this. [¶] It’s the perfect crime. It’s the perfect crime, except the DNA evidence resulted from the violence that she incurred. It’s him. The scenario’s the same. And her motive to testify I’ve just explained.” Hight then thanked the jury, and the court immediately began reading the jury instructions.
2. Subsequent discussions between counsel and the trial court
Just before the court finished instructing the jury, defense counsel asked for another conference at sidebar and reported, “Your Honor, Mr. Hight’s asked me, and I would like to spend some time with the court and Mr. Hight regarding perhaps fashioning some instruction for the jury regarding Mr. Hight’s closing argument as to the keys.” Hight told the court, “I have several I’ve written potentially.” The court declined to consider such an instruction at that time.
A little later, while the jury was deliberating, the court and counsel returned to the issue of a potential instruction regarding Hight’s argument. Defense counsel stated, “The situation as I see it is that perhaps inadvertently the People led the jury to believe and the court that access to either the lock box or keys for that apartment was available... to my client Mr. Hester. [¶] My understanding of the reports is that, when interviewed by Detective Kearns and other members of the Long Beach Police Department, the management company advised them that the locks had been changed and that new locks had been installed and new keys had been issued. And I think it’s a grave issue. It’s a very important issue that needs to be addressed. Whether we can correct it as suggested by Mr. Hight, and I really frankly don’t have any problem with the record being corrected. I think it’s better for the jury. I think it’s very important.”
Hight explained, “The lock boxes were changed. In there are keys. Keys are accessible to the maintenance personnel of which the defendant testified that it was vacant. He’s wondering about renting it. He knew the houses, and he conversed with the lock box people. When the tenants then eventually move in, those keys are given to the tenants. [¶] The only comment that I think is causing concern, and I don’t want to mislead in anyway [sic], is that there were no keys there.... People are bringing [sic] in and out. They were given-maintenance had it. He had contact with maintenance. [¶] I don’t want to infer [sic], though, or have any worry and address counsel that there’s any suggestion that they’re supposed to be there, and they’re now gone.” Hight said he did not oppose an instruction or stipulation “in an abundance of caution and for any kind of appellate purposes....”
The court responded, “The problem here, Mr. Hight, is your problem that you created by your words that you used in argument. This also happened in the exact same area of flight. There’s no flight instruction that was given in this case, and yet you stood before this jury and said I don’t know if he ran or not. He may have. Now, there’s no evidence of that whatsoever. [¶] Now, how you could say that statement based on the evidence that’s in this court is the same way that you made the statement of the keys. This court is not going to engage in additional stipulations of counsel to correct errors that you deliberately make in argument. [¶] Now, I know you’re going to contend that, hey, this is just a slip of the tongue, and I didn’t mean to infer [sic] this or that. It has happened too often in this courtroom, not just in this case but in other cases. [¶] I don’t believe you, Mr. Hight. You are a very intelligent man. You know exactly what you’re arguing at all times that you’re arguing. You do it in a very stumbling fashion, but you know exactly what you’re saying. You knew what you were saying in regards to flight. You knew what you were saying about those keys. Both were improper statements by you. [¶] The only way to correct it in the future is for you to not make those statements. You need to learn that. You can’t go back and unring a bell. You need to stop making false statements to jurors. You do it repeatedly, and I believe you do it on purpose.”
Hight argued that his argument on flight was responsive to defense counsel’s argument that defendant did not leave the area and was right down the street, then argued, “I thought the comment was-it was from the point that the officers were there. They took the swab. He participated. He was there.” Hight also attempted to justify his argument regarding the key: “[H]e testified that he had access to the maintenance. The maintenance has access to the keys. They were there. He inquired about the apartment. He knows the building well.” The court asked Hight, “If you’re satisfied that you only speak the truth in argument, why would you even be concerned about it?” Hight argued that an instruction was warranted “in abundance of caution.” After listening to additional argument by Hight in support of a stipulation or instruction, the court asked, “You wouldn’t deliberately make a statement that is incorrect; would you?” Hight said he had not done so. The court replied, “Then if you’re satisfied that you did not, we don’t need anything to correct your only statement on closing argument.”
After the court addressed the prior conviction allegations, defense counsel argued that Hight’s statement about why C.G. testified was “flat out error... because it calls for the passion and prejudice of the jury, and it’s just like it’s a bomb.” Counsel explained he had not objected because the court immediately began instructing the jury. The court agreed it was “error because it’s calling for punishment.” Hight argued that he was simply commenting on C.G.’s testimony and noted that he told the jury that “what attorneys say is not evidence.” The court declined to grant a mistrial, saying, “We’ll let the Court of Appeals [sic] handle it.”
3. Misconduct claim not forfeited
Although defense counsel eventually objected to all of the arguments raised on appeal, some of his objections were arguably untimely. Defense counsel never asked the court to admonish the jury to disregard the objectionable argument, although he joined in the prosecutor’s request to attempt to avert prejudice from the arguments through a stipulation or instruction to the jury.
“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ [Citation.]” (Hill, supra, 17 Cal.4th at p. 820.) “The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile.” (Ibid.) The purpose of the general rule is “‘remedial, ’” that is, to permit the court to take steps to eliminate or alleviate the potential prejudice and thus avoid a retrial. (People v. Brown (2003) 31 Cal.4th 518, 553.)
The Attorney General does not assert that defendant forfeited his prosecutorial misconduct claim with respect to any of the instances raised on appeal. Given the trial court’s response when defense counsel objected to Hight’s arguments about running and the second, more detailed argument about the key, together with court’s statements in the subsequent discussion with counsel-remarks that clearly suggested that the court had apparently decided to let the prosecutor face an appellate reversal for his misconduct-it is apparent that more timely objections and requests for admonitions would have been futile and thus would not have served the remedial purpose of the general rule. Applying the general rule here, which we reiterate is not sought by the Attorney General, would also fail to serve the goals of holding prosecutors to “an elevated standard of conduct” (Hill, supra, 17 Cal.4th at p. 819) and protecting defendant’s right to a fair trial (People v.Bolton (1979) 23 Cal.3d 208, 214 (Bolton)).
4. Analysis: arguments that defendant had a key
In both the first and third arguments in issue, Hight argued or attempted to argue that defendant had obtained a key to C.G.’s apartment. The first time Hight argued this point, he simply stated that defendant had “acquired a key.” But there was no evidence that defendant had obtained a key to C.G.’s apartment.
When he returned to this theory, he attempted to explain, in a somewhat elliptical fashion, how defendant had obtained the key: “Someone had contact with an out of county management company, the maintenance people cleaning in that apartment, asked about that particular apartment. There’s a lock box with no key in the lock box.” Two aspects of this argument had some basis in fact. Detective Kearns testified that there was an empty lock box on the outside of the apartment building and defendant testified that he asked a maintenance man working in the yard about the size of the apartment C.G. ultimately rented. But Hight’s argument portrayed these two segments of testimony in a misleading fashion. Nothing linked the absence of the key to defendant or the charged crimes. Notably, the prosecutor and court cut Kearns off when she apparently began to explain why the lock box was empty. Defendant testified that he inquired about the size of the apartment when he first moved to the neighborhood, about a year before the charged offenses. There was no evidence about defendant or anyone else being in touch with the management company and no evidence that the management company was “out of county.” Hight had asked Amy whether, when she and C.G. sought to rent the apartment, “a management company that’s out of town somewhere” showed it to them. Amy testified that it was a management company, but she did not know where it was located. Hight’s argument wove together a misleading portrayal of some testimony with matters that were not in evidence.
Hight’s arguments regarding the key clearly told the jury that defendant had the key to C.G.’s apartment and implied that he obtained it from the lock box, the maintenance staff, or the “out of county management company.” These arguments were not based on matters in evidence and not fair comment on the evidence. They mischaracterized the evidence and were misleading and unfair. Through such statements Hight effectively offered “‘unsworn testimony not subject to cross-examination.’” (Hill, supra, 17 Cal.4th at p. 828, quoting Bolton, supra, 23 Cal.3d at p. 213.) Although such “testimony” has no evidentiary value, it can be extremely persuasive to the jury, which tends to have a “‘“special regard”’” for the prosecutor. (Hill, at p. 828.) These arguments suggested that Hight “had information not presented to the jury that pointed to defendant’s guilt.” (Ibid.)
As the trial court found, there is every reason to believe that Hight made these arguments with the intention of misleading the jury. He raised the possibility that defendant entered using a key in his opening statement, although he had no evidence defendant had a key. He ceased questioning Kearns after she testified that the lock box was empty. The lock box testimony was a dead end. Hight had no evidence linking the absence of keys in the lock box to any wrongdoing, let alone wrongdoing by defendant. The only purpose served by introducing this irrelevant evidence was to build a foundation for an improper argument that defendant had obtained the key to C.G.’s apartment from the lock box. Hight then expanded the foundation for his improper argument by asking defendant on cross-examination about his inquiry to a maintenance worker regarding the apartment about one year before C.G. moved in. And perhaps the best indication that Hight intended to mislead the jury was his weak, occasionally nearly incoherent attempt to persuade the court that his key arguments were based upon the record. “[B]ut even if innocently done it nevertheless had the effect of confusing the jury to the prosecution’s advantage.” (Hill, supra, 17 Cal.4th at p. 825.)
The obvious purpose of these arguments was to negate defendant’s testimony that C.G. let him into her apartment-which tended to support defendant’s testimony that the sexual conduct was consensual-while providing an alternative explanation for the absence of any signs of forced entry. The repetition of the assertion that defendant had the key to the apartment and Hight’s detailed suggestion of three specific means by which defendant might have obtained the key exacerbated the inherent risk that the jury would conclude that Hight had information not introduced during trial that proved that defendant had obtained the key to C.G.’s apartment. (Hill, supra, 17 Cal.4th at p. 828.) Such proof obviously undermined a significant aspect of the defense, namely the consistency between defendant’s testimony that C.G. let him into the apartment and the absence of signs of forced entry, while enhancing the prosecution’s theory that defendant’s entry into the apartment was unauthorized and unknown to C.G. until defendant appeared in her bedroom doorway.
The Attorney General contends that Hight’s arguments were a fair response to the following argument by defense counsel: “He mentioned, well, the maintenance man. I don’t know anything about the maintenance man. If someone is suggesting that somehow my client had keys from someone, prove it. They’ve had over two years. Bring it on, as Mr. Hight says in the basketball world. [¶]... If my client had a key, we would know big time. If he had access to someone who had a key, we would know.” But a prosecutor is not allowed to argue matters outside the record or attempt to mislead the jury in order to respond to an argument by defense counsel. In People v. Hill (1967) 66 Cal.2d 536, the California Supreme Court explained the leeway granted to prosecutors in responding to argument by defense counsel: “While [the prosecutor] was not entitled to go beyond the scope of the argument and comment in a manner otherwise proscribed, he cannot be charged with misconduct if his comments only spill over somewhat into a forbidden area; the departure from propriety must be a substantial one.” (Id. at p. 561.) As noted in McDaniel, supra, 16 Cal.3d at page 177, the otherwise improper remarks by the prosecutor must be based on the record and fairly responsive to defense counsel’s argument. Hight’s argument regarding the key was not based upon the record. His resort to matters outside the record and misleading interpretations of the evidence constituted a substantial departure from propriety.
5. Analysis: argument about flight
The second challenged argument pertained to flight. Defense counsel had argued, “[Defendant] didn’t flee. He didn’t go anywhere after this alleged event. He continued to live 30 yards down the street and down the alley.” Hight responded, “Defense counsel says he didn’t run. Remember that? Where’s the evidence he didn’t run? We don’t know.” This argument mischaracterized counsel’s argument and the record. Defendant had testified that after August 6, he remained living with his mother in the same apartment, which was just the other side of an alley from C.G.’s apartment. In addition, Hight’s use of the word “run” was potentially misleading because it changed the focus from defendant continuing to live in the same area to the possibility that defendant ran from C.G.’s apartment on the morning of August 6, which was sheer speculation. Hight’s argument also effectively told the jury that defendant had failed to prove that he had not run from C.G.’s apartment, notwithstanding defendant’s testimony.
6. Analysis: argument about why C.G. testified
Near the conclusion of his rebuttal argument, Hight asked the jury to recall why C.G. said she was testifying, then said, “She’s testifying so this won’t happen to anybody else.” This was improper for two reasons: it was not based upon any evidence and suggested that if the jury did not convict defendant, he would sexually assault someone else. The only evidence bearing any remote resemblance to the prosecutor’s statement was C.G.’s testimony that she underwent the sexual assault examination and allowed “uncomfortable pictures” to be taken “[b]ecause if there’s any chance of the person being caught, they needed to do that.” This testimony merely addressed the recording and collection of evidence through the sexual assault examination that might assist the police in their investigation. It neither explained her reasons for testifying nor included any implicit or explicit request to convict defendant “so this won’t happen to anybody else.” The inclusion of this suggestion that if defendant were not convicted he would sexually assault another person was an improper appeal to the jury’s passion and prejudice and invited it to convict defendant to prevent him from committing another sexual assault.
7. Prejudicial effect of the misconduct
Prosecutorial misconduct constituting federal constitutional error is subject to harmless error analysis under the standard of Chapmanv.California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]: the Attorney General has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (Bolton, supra, 23 Cal.3d at p. 214.) Prosecutorial misconduct that does not rise to the level of federal constitutional error is harmful when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor not engaged in misconduct. (Ibid., citing People v. Watson (1956) 46 Cal.2d 818, 836.)
In assessing prejudice, we consider the cumulative effect of Hight’s misconduct because the number and gravity of incidents “raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone.” (Hill, supra, 17 Cal.4th at p. 845.) We must also factor in the “‘special regard the jury has for the prosecutor.’” (Bolton, supra, 23 Cal.3d at p. 213.) In Berger, supra, 295 U.S. at page 88, the United States Supreme Court explained the basis of this special regard: “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. [¶] It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”
As previously noted, Hight’s arguments about defendant acquiring the key to C.G.’s apartment and suggesting that he obtained it from the lock box or the maintenance staff or the “out of county management company” amounted to unsworn testimony that was not subject to cross-examination. This violated defendant’s Sixth Amendment right to confrontation and to his right to the effective assistance of counsel. (Bolton, supra, 23 Cal.3d at p. 213; People v. Herring (1993) 20 Cal.App.4th 1066, 1076–1077.) Thus, the prosecutorial misconduct in this case involved federal constitutional error.
Credibility was the core determination for the jury in this case. If the jury believed defendant, no crimes were committed. If the jury believed C.G., defendant was guilty of all of the charged offenses. The evidence before the jury would thus have supported either conviction or acquittal. Defendant’s testimony was supported by the absence of any sign of forced entry. Hight’s improper arguments that defendant had the key to C.G.’s apartment were “‘“dynamite”’” (Bolton, supra, 23 Cal.3d at p. 213) in the context of this trial, not only due to the jury’s special regard for the prosecutor (ibid.) but because these arguments provided the jury with a way to make sense of the otherwise utterly irrelevant lock box evidence and to reconcile the absence of any sign of forced entry with C.G.’s testimony that defendant was not invited or authorized to be in her apartment. These factually unsupported, completely improper arguments thus went directly to the core of the case and “tip[ped] the scales of justice” in favor of the prosecution. (People v.Bain (1971) 5 Cal.3d 839, 849.)
Hight’s other improper arguments about defendant running and C.G. testifying to prevent anyone else from experiencing the same thing added to the prejudicial effect of the arguments about the key. Hight appealed to the jury’s sympathy and urged conviction to prevent anyone else from falling victim to defendant.
In addition, Hight made numerous other improper arguments to which defense counsel did not object. Hight argued that defendant never had a “chirp phone” and that such phones have no records. These assertions were not supported by any evidence and also served to undermine the credibility of defendant’s testimony by improper means. Hight further argued that C.G. gave “a complete statement to... Officer Hampton.... Detective Kearns takes a full report. Not one inconsistency presented before you. On the money.” This argument was not supported by the evidence. C.G. testified she “made a statement” to an officer who came to the apartment and whose name she did not know. There was no evidence that she gave “a complete statement” to Hampton or any other officer. Kearns testified that she responded to the hospital for C.G.’s sexual assault exam, but did not testify that she “[took] a full report” or any report. This unsupported argument also tended to support C.G.’s credibility to the detriment of the defense by suggesting that the statements C.G. gave various police officers-statements that were not in evidence-were identical to her testimony. Hight also argued, without any evidentiary support, that C.G. had never seen the written report of the sexual assault exam. He also argued, “The DNA comes even on the predischarge.” This was not supported by any evidence and not a fact within the common knowledge of jurors. Hight also argued, “Why didn’t she tell the police I’ve a chirp phone. He’s texted in.” Defendant never testified that he sent C.G. a text message, but only that he stored her phone number in his phone and later called her.
Hight also argued, “The cops hold off, secure the scene, recover all items.” This argument was also based upon matters not in evidence. During the trial, Hight had recalled Kearns and had her give hearsay testimony about items “not recovered from the scene, ” including a condom, condom wrapper, C.G.’s boxer shorts, and “the item that the suspect used to wipe her.” Cross-examination revealed that Kearns was not present when C.G.’s apartment was searched. The court struck the testimony after rebuking Hight outside the presence of the jury: “Mr. Hight, you misled us. First of all, you said she’s going to correct Cellmark [as not being in] Sylmar. Then she ended up testifying on hearsay on other items that she had nothing to do with.” The court warned, “[D]on’t play games with me, and don’t play games with counsel. It’s not appropriate.”
Under the circumstances, we conclude the prosecutorial misconduct here was prejudicial under either the Chapman or the Watson standard.
A significant factor in our assessment of the prejudicial effect of Hight’s challenged misconduct is the trial court’s refusal to take any action to attempt to eliminate or alleviate the potential prejudice to defendant. The court’s remarks reveal that the court had essentially given up on attempts to correct Hight and believed that Hight deserved to suffer the consequences of his bad behavior through appellate reversal. Although the trial court’s exasperation was understandable in light of its observations that Hight had repeatedly and purposely made false statements to jurors during both defendant’s trial and other trials, “the trial court’s failure to rein in [his] excesses” (Hill, supra, 17 Cal.4th at p. 821) permitted Hight to violate defendant’s constitutional rights without a guaranty that the constitutional violations would be corrected on appeal. Even crediting the trial court’s confidence in appellate reversal, defendant’s liberty interests were potentially harmed, in that, had the court dealt with Hight’s misconduct before the jury, defendant may have been acquitted and would have been released from custody rather than remaining incarcerated. In addition, the public’s interest in fair trials and the conservation of judicial and public resources is poorly served by a policy of refusing to take corrective action in response to known prosecutorial misconduct. In Bolton, supra, 23 Cal.3d at page 216, footnote 5, the California Supreme Court advised, “[W]hen the defense counsel requests cautionary instructions, the trial judge certainly must give them if he agrees misconduct has occurred. He should aim to make a statement to the jury that will counteract fully whatever prejudice to the defendant resulted from the prosecutor’s remarks.” Here, counsel agreed that a stipulation or instruction regarding the keys was appropriate. An appropriate instruction or stipulation that squarely addressed the absence of any evidentiary support for Hight’s arguments that defendant had the key might have neutralized a great deal of the prejudice caused by Hight’s misconduct and possibly have avoided the necessity and burden of a retrial.
Although the trial court instructed the jury that statements by the attorneys were not evidence and Hight attempted to inoculate his improper arguments by repeating a similar statement throughout his arguments, we do not believe such an admonition could begin to dispel the prejudice Hight created. The most insidious aspect of his arguments was to suggest the existence of unadmitted evidence. Even if the jury abided by the principle that Hight’s argument was not itself evidence, the argument created a potent inference that Hight possessed evidence that he had been unable to introduce at trial that proved defendant’s guilt. Thus, the jury could have adhered to the admonition, but still have been improperly influenced by Hight’s improper arguments implying the existence of damaging unadmitted evidence.
We thus conclude that Hight engaged in prejudicial prosecutorial misconduct requiring reversal. It is unnecessary to address the sentencing issues, which may not recur upon retrial.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court. Pursuant to Business and Professions Code section 6086.7, subdivision (b), the clerk of this court is directed to send a certified copy of this opinion to the State Bar.
We concur: ROTHSCHILD, J., CHANEY, J.