Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County Super. Ct. No. TA081088. Jack W. Morgan, Judge.
Jeanine G. Strong, 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, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Fadi Z. Kamal appeals from the judgment following his convictions for grand theft and receiving stolen property. Because of prosecutorial misconduct, we reverse and remand for retrial.
FACTS AND PROCEEDINGS
Appellant Fadi Kamal began working for Darden Dental Supply in 2002. After several promotions over two years, he became the company’s warehouse inventory manager. In early May 2005, the company fired him, telling him new computer software made his job unnecessary. When it terminated him, the company offered appellant $2,000 in severance pay if he would sign a waiver not to sue. He refused and the next week filed with the Department of Fair Employment and Housing a discrimination complaint over the company’s workers’ compensation coverage.
In the meantime, company officials had started noticing about one month earlier that some items were inexplicably missing from its warehouse. Following appellant’s discharge, the company started spot-checking its inventory and in mid-June discovered $17,000 in inventory was missing. During appellant’s time working for the company, it had allowed him to sell opened or returned dental supplies on eBay. Searching eBay’s website, the company found two sellers named “Oasis 2 U” and “Midorispeed” who were selling what appeared to be the missing inventory. eBay told the company that Oasis 2 U was appellant’s user name and that Midorispeed was the user name for the uncle of appellant’s wife. On June 15, the company filed a police report reporting the thefts. Five days later, appellant sued for wrongful termination.
The police recommended company officials try to buy some of the items from eBay to confirm they were from the company’s warehouse. To avoid alerting appellant about the company’s suspicion of him, company officials asked friends to make the purchases. When the friends received the packages, they gave them unopened to company co-owner Daniel Zakowski, who opened them in front of the police.
The police confirmed the serial numbers on the delivered items matched serial numbers the company had supplied for the missing inventory. The police thereafter searched appellant’s home and the home of his father, where they found dental supplies of the sort missing from the company’s warehouse. But, the serial number on only one item recovered from the searches – a box of disinfecting towelettes – matched company records.
At trial, appellant claimed he had bought from other vendors the supplies the company alleged he had stolen from it. He asserted company officials were falsely accusing him of theft in order to discredit him in his wrongful termination lawsuit against the company. The jury convicted appellant of grand theft and receiving stolen property, and the court sentenced him to three years’ probation.
DISCUSSION
Appellant charges the prosecutor with misconduct that he contends denied him a fair trial, thus requiring reversal of his convictions. Prosecutorial misconduct occurs if (1) the prosecutor infects the trial with unfairness so as to violate due process or (2) uses deceptive or reprehensible methods to try to persuade the jury. (People v. Jablonski (2006) 37 Cal.4th 774, 835; People v. Frye (1998) 18 Cal.4th 894, 969.) We find such misconduct happened here.
The prosecutor’s misconduct was right off the starting block in his cross-examination of appellant. The prosecutor asked:
“In order to assess credibility, do you think the jury should be informed of your prior crimes. [¶] [DEFENSE COUNSEL]: Your honor, excuse me. Your honor, this is absolute nonsense. I move for a mistrial. That is not true. That is an absolute lie. [¶] [PROSECUTOR]: We can look at his rap. [¶] [DEFENSE]: This is totally improper. Absolutely improper. [¶] THE COURT: I don’t know if it is or isn’t. Come to sidebar.”
The court excused the jury, and counsel and the court discussed the matter. Noting the prior crime was appellant’s conviction for misdemeanor injury of a cohabitant who later became appellant’s wife, the prosecutor argued his question was fair rebuttal to appellant’s testimony of his good character, including his marriage to his “wonderful wife,” which the defense offered to support appellant’s credibility. The court deferred ruling at sidebar on the admissibility of the misdemeanor misconduct until counsel could argue the matter more fully. The prosecutor then resumed his cross-examination and turned to other matters.
In fact, regardless of what appellant’s violence toward his then future wife says about him, it says nothing about her wifely qualities, which is the evidence the prosecutor was ostensibly challenging. Appellant’s conviction for hitting his wife is unrelated to whether she is a wonderful spouse, because a victim of domestic violence never deserves a beating, no matter how wonderful or flawed the victim might be as a marriage partner.
The following court day, the court and counsel revisited the admissibility of the misdemeanor evidence. The court found the prosecutor had asked the question in good faith because it deemed appellant’s violence toward his wife relevant to appellant’s testimony of his good character. The court therefore denied appellant’s motion for mistrial. The court concluded, however, that on balance the evidence was inadmissible. The court did not state what factor weighed against admissibility, but its comments to counsel suggest the conviction’s remoteness.
Appellant contends the prosecutor committed misconduct by asking him about his “prior crimes.” In doing so, according to appellant, the prosecutor undermined his right to a fair trial in a case that turned mostly on his credibility. We agree.
First, misdemeanor convictions are inadmissible hearsay. (People v. Wheeler (1992) 4 Cal.4th 284, 297 fn. 7; but see People v. Duran (2002) 97 Cal.App.4th 1448, 1459-1460 [questioning whether Wheeler remains good law on inadmissibility of misdemeanor convictions].) Strictly speaking, the prosecutor did not mention appellant’s convictions, but instead asked about his crimes, which may, or may not, have focused the jury on appellant’s acts instead of his conviction. As phrased, however, the prosecutor’s question was too clever by half because it came perilously close to asking about inadmissible convictions. And lest there be any doubt about the point the prosecutor was trying to make as the jury listened on, he drove it home by suggesting “we . . . look” at appellant’s “rap” sheet. Hearing the exchange between counsel and the court, reasonable jurors were likely to accurately infer that appellant had been convicted of some unspecified crime – something they should not have learned.
Second, the prosecutor’s question was more an argument aimed at baiting appellant than a question seeking admissible evidence. It did not matter what appellant thought about the jury’s learning about his prior crimes. Evidence is either admissible or inadmissible, and the court decides which is which; a defendant’s thoughts about the matter are beside the point. We therefore must part company with the trial court’s conclusion that the prosecutor asked the question in good faith, because the prosecutor was not truly asking a question. He was instead making a point for the jury’s benefit using inadmissible and prejudicial evidence.
In any case, a prosecutor need not act in bad faith to commit misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839 [“Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct.”].) It would seem to follow, therefore, that good faith does not insulate a prosecutor from a charge of misconduct.
The prosecutor’s misconduct affected the trial’s fairness because the evidence against appellant was not overwhelming. The jury struggled to reach its verdicts. In its second day of deliberations, the jury reported it was deadlocked on both counts. On the grand theft charge, jurors were divided seven to five after four votes, and after two votes on the charge of receiving stolen property were split eight to four. Appellant’s alleged crimes were not factually complicated, strongly suggesting the jury’s difficulty in reaching unanimity arose from jurors’ competing assessments of the credibility of appellant and company witnesses. The company accused him of stealing supplies; he replied the company was falsely maligning him in retaliation for his reporting its unlawful failure to carry workers’ compensation insurance. Apparently his defense held sway at least for a time with a number of jurors because the jury reported when it was deadlocked that the “conspiracy theory is being discussed on behalf of [the company].” In light of the trial’s outcome hinging on credibility, the prosecutor’s improper attacks on appellant’s credibility more likely than not affected the jury’s deliberations and ultimate verdict. (People v. Crew, supra, 31 Cal.4th at p. 839 [prosecutorial misconduct requires reversal if more favorable outcome for defendant reasonably probable absent the misconduct].) Appellant is therefore entitled to a retrial before a jury untainted by prosecutorial misconduct.
DISPOSITION
The judgment is reversed and the matter is remanded for retrial.
WE CONCUR: COOPER, P. J., FLIER, J.