Opinion
A154851
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. LARRY DARYL NEAL, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-171654-7)
In this tragic case, defendant Larry Neal shot and killed a stranger, Robert Hopkins, after Hopkins—who had significant mental-health problems and was on methamphetamine—charged at Neal and his pregnant girlfriend while they were eating ice cream. A jury acquitted Neal of murder but convicted him of one count of voluntary manslaughter based on imperfect self-defense or defense of another, as well as one count of unlawful firearm activity based on Neal's prior juvenile adjudication for robbery. The trial court sentenced him to 10 years in prison.
On appeal, Neal claims that his voluntary-manslaughter conviction must be reversed because the trial court erred by "severely limiting" evidence of Hopkins's character, including his mental-health and substance-abuse problems and related violent and suicidal tendencies. He also claims that much of the evidence involving his juvenile adjudication should have been excluded. Finally, he claims these errors "were compounded by prosecutorial misconduct" throughout the trial.
Although we reject most of Neal's evidentiary claims, we conclude that the trial court erred by excluding some of the proffered evidence of Hopkins's character. While this error alone would not necessarily require reversal, its prejudicial effect was compounded by the prosecutor's improperly referring to the facts underlying Neal's juvenile adjudication to attack Neal's credibility. These errors bore on issues—Hopkins's behavior and Neal's credibility—that were both critical in the jury's evaluation of whether Neal's belief that he needed to use deadly force was objectively reasonable. We conclude that absent these errors, there is a reasonable likelihood the jury would not have convicted Neal of voluntary manslaughter. We therefore reverse that conviction, although we affirm the conviction of unlawful firearm activity.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Neal and His Girlfriend Get Ice Cream.
The shooting occurred around 3:00 p.m. on July 19, 2017, outside a Baskin-Robbins in a Pittsburg strip mall. It was about 90 degrees outside, and 19-year-old Neal and his girlfriend, who was about the same age, decided to get ice cream after eating burgers nearby. Neal's girlfriend was eight months pregnant with their first child. At the time of trial, she was five feet, two inches tall and weighed 108 pounds.
Neal was in a good mood, having listened to the baby's heartbeat for the first time the day before. He testified that the experience "filled [him] with . . . excitement, nervousness, [his] first child, becoming a father," and he "actually started crying and it was just [a] beautiful thing to [him]." The Baskin-Robbins employee who served Neal and his girlfriend confirmed that both seemed "happy," recalling that while tasting a few flavors before ordering Neal "said one of them tasted like a bundle of joy."
After buying ice cream, Neal and his girlfriend sat outside the store to eat. Facing toward the stores from the main parking lot, the Baskin-Robbins was on the left end of a row, with a Verizon store to the right and a Togo's to the right of the Verizon store. The table where Neal and his girlfriend sat was pushed against the Baskin-Robbins's full-length front windows. Neal sat in a chair with his back against the windows, and Neal's girlfriend sat in another chair to the left, farther away from the Togo's.
B. Neal and His Girlfriend Encounter Hopkins.
Neal's girlfriend testified that as she and Neal ate, she saw Hopkins, whom she described as a white man wearing overalls, "peeking around the corner" at the other end of the row of stores, by the Togo's. Neal noticed his girlfriend looking past him and turned to see "a guy standing on the corner of the Togo's." Neal and his girlfriend agreed Hopkins's behavior was "weird."
Hopkins had just bought and eaten deli meat at the Togo's, and a surveillance video recording of him inside the store was played for the jury. A Togo's employee testified that Hopkins seemed "really hyper, kind of nervous," and she thought he might be on drugs. The parties stipulated that Hopkins "[had] methamphetamine in his blood at the time of his death."
After first noticing Hopkins, Neal went back into the Baskin-Robbins to get spoons and then went to his car to get money to pay his girlfriend back. At the car, he struck up a "friendly conversation" with a man in the car parked next to his. Neal's girlfriend testified that while Neal was gone, Hopkins walked down the breezeway toward her but then turned and disappeared around the corner.
Neal also saw Hopkins walk toward his girlfriend, and Hopkins "kind of looked at [him] and just instantly turned around." Neal felt this behavior was "a red flag," because it was the second time Hopkins looked at them "and now he's actually walking towards her." Neal also found it strange that Hopkins had "black gloves on, black overalls, and black long sleeves," since it was a hot day.
Neal returned to his girlfriend and sat down in the same chair. Neal testified that he wanted to leave without upsetting Hopkins, because he found Hopkins's behavior suspicious. As Neal tried to figure out where he and his girlfriend could go, Hopkins approached, walking his bicycle.
Neal testified that Hopkins was "just staring at [him] real hard, like . . . with hatred, just anger." Similarly, Neal's girlfriend testified that Hopkins was "staring at [the couple]" as if he was "angry or like he had a problem." Hopkins stopped near their table, and, in an attempt "to ease the tension," Neal said something like, "How are you doing?" Hopkins replied, "What the fuck are you staring at?" Neal told Hopkins, "Go on about your business," in what Neal described as a "nonchalant" or "calm" voice. At the time, Hopkins was standing six to eight feet away from Neal's girlfriend.
Hopkins yelled, "Oh, don't fucking talk to me like that. Don't fucking talk to me like that." Neal's girlfriend said to Hopkins, "Why don't you just walk away?" She got up and walked around the table to Neal, intending "[t]o calm the situation down, to stop them from arguing." She stood over Neal, with one of his legs between hers as she touched his knee, and told him, "Let it go." Meanwhile, Hopkins "threw his bike down" and seemed like "he wanted to fight."
Neal's and his girlfriend's testimony about Hopkins's bizarre and confrontational behavior was corroborated by two other witnesses. A UPS driver testified that on his way out of the Verizon store, he noticed Neal with his girlfriend, "just relaxing, enjoying the day, having an ice cream." The driver also noticed Hopkins, whom he described as "a little bit ragged, little bit dirty," walking his bicycle from the Togo's toward the Baskin-Robbins. As the driver prepared to leave in his truck, he heard "some sort of argument" between Neal and Hopkins that sounded "a bit heated and . . . a bit ugly." As he was about to pull away, the driver heard Neal's girlfriend say, as if to defuse the situation, "Let it go. Let it go."
Another Baskin-Robbins customer, P.G., who testified for the defense, also saw Neal and his girlfriend eating ice cream. P.G. then saw Hopkins, whom she described as a white man with a bicycle, "c[o]me up arguing." Hopkins seemed "as if he was arguing . . . basically with [himself]. He was trying to start something; that's what it look[ed] like." P.G. testified that it "sounded like the young man and the young lady . . . [were] trying to get him to leave, and he was not trying to leave," and she heard Hopkins angrily say, "No, you shut the fuck up." Then, P.G. saw Hopkins, who seemed to be in "aggressive fighting mode," drop his bicycle and a backpack onto the ground.
C. Neal Shoots Hopkins.
1. Neal's and his girlfriend's testimony
As Neal's girlfriend stood over Neal, she was facing away from Hopkins but could see him out of the corner of her eye standing "a couple feet" away from her. She saw Hopkins pull up the pants of his overalls, "a little below his pockets," and formed the impression he was "getting ready to fight, . . . like . . . in a stance to fight."
The Pittsburg police detective who interviewed Neal and his girlfriend after the incident testified that the girlfriend never said she saw Hopkins "reach for his pockets." At trial, she testified that she saw Hopkins touching his pants but did not see anything in his hands before Neal shot him.
Neal testified that after dropping the bicycle, Hopkins ran toward him and his girlfriend. Hopkins, who was five feet, nine inches tall and weighed 181 pounds, seemed "hostile, aggressive[, and] . . . angered." P.G. also saw Hopkins "charge" toward Neal and his girlfriend, who was between Neal and Hopkins. Based on the demeanor of Hopkins, who P.G. agreed was "the aggressor in [the] situation," she thought a fight was imminent.
Neal did not initially react because he did not want Hopkins to think he had successfully intimidated the couple. Neal testified that as Hopkins approached, however, he saw Hopkins "start to reach for a sharp object in his [right] pocket[,] . . . with his other hand reaching for [Neal's girlfriend]." Neal explained that although he never saw the object, he could tell it was sharp and "long" because it was "poking through the pants." Neal became "terrified," because his girlfriend "was eight months pregnant, and . . . [he] really didn't want to lose [his] child or her."
The detective who interviewed Neal testified that Neal never said he saw Hopkins reach for a weapon or for his girlfriend. Neal said he thought he mentioned both details, but the detective interrupted him as he reached that part of the story.
Neal moved his girlfriend out of the way, screaming at her to watch out. Still seated, he pulled out his gun, shot once, and "waited for . . . a reaction," but Hopkins "still had a[n] angered face and he still was . . . coming." Neal testified that he did not know whether the shot hit Hopkins because he did not see any blood and Hopkins "still had this angry look and still was . . . reaching for" Neal and his girlfriend, so Neal stood up and continued to shoot. According to Neal, he was aiming at Hopkins's legs: "Because I wasn't trying to kill him. . . . I was just trying to get him to the ground so he wouldn't be reaching for a weapon or reaching for [my girlfriend] any more."
Neal testified that he stopped shooting once Hopkins fell to the ground. Neal admitted that he pointed the gun at Hopkins while he was on the ground, because Hopkins "was still moving" and "hyper[,] . . . like he was about to get up." Neal denied shooting Hopkins after he was down, however, explaining, "[H]e was no longer coming after us; he was no longer a threat." Neal's girlfriend confirmed that Hopkins never actually touched her or Neal during the encounter.
2. The testimony of other witnesses
Other witnesses offered inconsistent testimony about key details, including whether Neal continued to shoot at Hopkins after Hopkins was on the ground. S.S., another Baskin-Robbins customer, testified that he heard someone else inside the store "shout out, 'Looks like they're about to fight.' " S.S. looked outside and saw Neal stand up, "pull[] out a gun," and start shooting at Hopkins, who was facing Neal from a few feet away. S.S. testified that he did not pay attention to where Neal's girlfriend was positioned, but he knew she was standing with her back to the window and was not between Neal and Hopkins. S.S. heard three shots before Hopkins fell and, after a "quick pause," two more once Hopkins was on the ground.
S.S. acknowledged that he did not mention any pause when he spoke to the police after the incident, and the detective who interviewed him on the scene testified that S.S. never said that Hopkins had been shot while he was on the ground.
A Baskin-Robbins employee testified that he heard four to five "pretty consecutive" shots, after which Hopkins "stumbled a little bit" before falling. The employee said he "believe[d]" he heard all the gunshots before he saw Hopkins fall.
An off-duty paramedic sitting in his car heard "some gunfire and some screaming kind of simultaneously." "[A]fter the first couple of pops," he heard "a round kind of go zipping by, kind of make this little ripping sound as it went by [his] window." The paramedic looked toward the Baskin-Robbins and saw Neal shooting at Hopkins from about 10 to 15 feet away. Hopkins "[made] this kind of a twirl almost and then hit the ground."
The paramedic recalled hearing three to four gunshots, a pause, and then one or two more. He was not sure whether Neal continued to shoot after Hopkins was on the ground, testifying, "I believe the three to four [gunshots] is what drew my attention . . . to sit up and look around, and . . . as [Hopkins] was spinning, I believe that's when I heard the . . . other couple shots." The paramedic exited his car and took cover, although at one point he peeked out and glimpsed Neal "walk up and stand over the person on the ground" with "the gun kind of clasped in both hands and squared up over the victim." The UPS driver, who was driving away when he heard gunshots, turned his truck around in time to see Neal standing and pointing a gun downward, but he never actually saw Neal shoot.
P.G. was not looking at Hopkins when she heard the gunshots. Scared, she ran into the parking lot and left immediately, and she testified that she did not see anything else that happened.
3. The surveillance recording
An interior Baskin-Robbins security camera captured some of the encounter, and the recording was played for the jury. The camera was pointed directly toward Neal and Hopkins, but posters blocked large portions of the full-length windows the men were behind. The recording, which we reviewed, shows Hopkins walk by Neal's table and stop several feet past it. Neal gestures with his arm, and shortly afterward his girlfriend gets up and stands by him, with her back toward Hopkins. A few seconds later, Hopkins crouches down and charges toward the couple in that position.
The actual shooting is blocked by the posters, but about three seconds after Hopkins reaches the table he stumbles from behind the posters, toward the Verizon store, and falls to the ground. He immediately tries to get up, at which point Neal and his girlfriend quickly run past him. Neal's arms are stretched toward Hopkins, but the video does not clearly show whether Neal shoots as he runs. After Neal disappears, Hopkins crawls back toward the store windows and sits on the ground briefly before collapsing.
D. The Aftermath and Physical Evidence
Neal's girlfriend testified that she was "shell-shocked" after hearing the gunshots, and she and Neal ran to Neal's car and left. Other witnesses saw the car drive away quickly. Neal testified that his girlfriend was "hysterical" and he wanted to "g[e]t her away from the scene." He testified that he did not call the police because he was "panicked" and scared they would not believe his story, and he "didn't know what [he] was going to do."
Meanwhile, while speaking to the 911 dispatcher, the paramedic rendered aid to Hopkins. As he removed Hopkins's clothes, he noticed a pair of "large red-handled pliers" in the right pocket of Hopkins's overalls. In addition, "a long-handled screwdriver" was "[t]ucked . . . between [Hopkins's] coveralls and his pants or shorts that he had on . . . underneath" them, "in line with his right leg." The paramedic testified that the pliers' red handles were visible against Hopkins's overalls before he removed Hopkins's clothes, but the screwdriver was not visible.
The shooting was reported at 3:05 p.m., and a Pittsburg police officer arrived at the scene about five minutes later. He observed a 10-inch screwdriver and pair of pliers on the ground. The pockets of Hopkins's overalls contained several items, including a Leatherman knife with the blade closed in the left front pocket. The police officer who collected the knife testified that "it was not visible from the outside" of the pocket.
Five nine-millimeter shell casings, which were lying within five feet of Hopkins, were located at the scene. The casings were all fired from the same semiautomatic gun, a type of weapon that can fire successive shots very quickly. The gun itself was never recovered.
Hopkins bled to death from multiple gunshot wounds. He was shot five times, in his right groin, his left buttock, the back of his upper left shoulder, both wrists, and the right side of his chest. The forensic pathologist who performed the autopsy could not determine the order in which the wounds were inflicted, and he agreed that Hopkins's wounds were "consistent with . . . a very dynamic moving shooting incident."
A criminalist testified that he was unable to find any gunshot residue on Hopkins's clothing, tending to suggest the gunshots were not fired at close range. The criminalist was unable to opine about what the minimum distance between the gun and Hopkins's clothing was, however, given a number of unknown variables (including the type of gun used).
E. Neal Flees After the Shooting.
Neal drove himself and his girlfriend back to his mother's Antioch home, where he was living while working and attending community college. Later that afternoon, after Neal and his girlfriend had left again, a Pittsburg detective arrived at the home to serve a search warrant and attempt to locate Neal. Neal's mother called Neal, and the detective indicated that Neal's mother was "hysterical" while she was talking to her son. Neal described her as "screaming" as if someone was "physically harming her."
During the call, Neal's mother handed the telephone to the detective. The detective testified that he told Neal he "needed to speak with him and for him to . . . meet [the detective] down at the Pittsburg Police Department." According to the detective, Neal promised to be there within half an hour, but he never arrived. Neal testified that he never intended to go to the police station and agreed to do so only to get the detective "away from [his] mom" so she would calm down.
Instead, Neal and his girlfriend drove to Sacramento and spent the night in the car. Neal explained he "just wanted to get away from the chaos and just be able to calm down for a moment and get [his] bearings." The next day, Neal dropped his girlfriend off in Vacaville so her mother could take her home. He returned to Sacramento and disposed of the gun in a river.
Neal spent the next few days driving around, pondering what to do. In his words, "I knew I had a big decision to make," which was either to "evade the police and risk not even being able to just have a happy, just comfortable moment around my daughter without the police looking for me or turning myself in and hoping that they would get my story." Neal ultimately returned to Contra Costa County to turn himself in, four days after the shooting.
F. Neal Is Charged and Convicted.
Neal was charged with one count of murder, with an accompanying enhancement allegation that he personally and intentionally discharged a firearm causing death. He was also charged with one count of unlawful firearm activity based on a prior juvenile adjudication for second degree robbery, which was separately alleged to be a strike.
The murder charge was brought under Penal Code section 187, subdivision (a), and the firearm enhancement was alleged under Penal Code section 12022.53, subdivision (d).
The charge of unlawful firearm activity was brought under Penal Code section 29820, subdivision (b), based on the allegation that Neal was adjudged a ward of the juvenile court for committing robbery in violation of Penal Code sections 211 and 212.5. The juvenile adjudication was alleged to be a strike under Penal Code sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c).
The jury found Neal not guilty of second degree murder but guilty of the lesser included offense of voluntary manslaughter, and it found true that he personally used a firearm while committing that offense. The jury also found Neal guilty of unlawful firearm activity and found true the prior-strike allegation. At sentencing, the trial court granted Neal's motion to strike the prior-strike finding and imposed a total term of 10 years in prison, composed of a term of six years for voluntary manslaughter and a consecutive term of four years for the firearm enhancement. A two-year term for unlawful firearm activity was imposed and stayed.
The conviction for voluntary manslaughter was under Penal Code section 192, subdivision (a), and the firearm enhancement was found true under Penal Code section 12022.5, subdivision (a).
II.
DISCUSSION
Although Neal's claims on appeal have distinct legal bases, they revolve around how Hopkins and Neal were portrayed to the jury. Because of some trial court rulings that improperly excluded evidence about Hopkins's mental-health and substance-abuse problems, which were of a type bearing on his character for violence, Hopkins was portrayed as more sympathetic than he otherwise would have been. At the same time, because the prosecutor disregarded court rulings that limited references to Neal's prior juvenile adjudication, Neal was portrayed as less credible and sympathetic than he otherwise would have been. These errors might not separately compel reversal of Neal's voluntary-manslaughter conviction, but cumulatively they do.
A. Some Evidence of Hopkins's Character Was Improperly Excluded.
Neal first claims that the trial court erred by excluding a large amount of evidence of Hopkins's character and prior acts, which Neal claims was relevant to whether he responded reasonably to Hopkins's threatening behavior. We conclude the court properly limited much of this evidence under Evidence Code section 352, but it erred in excluding evidence of Hopkins's mental-health and substance-abuse issues on relevance grounds.
All further statutory references are to the Evidence Code unless otherwise noted.
1. Additional facts
a. The initial ruling
Before trial, Neal moved to admit evidence of Hopkins's "violent and aggressive character" under section 1103, arguing it was relevant to whether his reaction to Hopkins was objectively reasonable. Specifically, Neal sought to admit medical records and records of Hopkins's statements to police in relation to 20 separate incidents during which Hopkins was subject to a hold under Welfare and Institutions Code section 5150 and/or involuntarily hospitalized. Neal argued the records were relevant because Hopkins's "violent and aggressive behavior [was] inextricably linked to his mental illness and methamphetamine abuse, which required increasingly frequent intervention by law enforcement, and subsequently, involuntary hospitalization."
The motion's summary of these incidents described paranoid, delusional, suicidal, and aggressive behavior by Hopkins, as well as heavy ongoing methamphetamine use. As summarized by Neal's trial counsel, the incidents at issue, all but three of which occurred in the two years before the shooting, "involve[d] either the police['s] having to restrain [Hopkins] in some way and [his] physically confronting them or [his] asking them to shoot him." As an example, counsel describe a July 2016 encounter during which Hopkins "screamed at [an] officer [to] shoot him between the eyes, lunged at officers, and was trying to suicide by officer, screaming that they would have to kill him."
The prosecutor argued that Hopkins's prior history was irrelevant because Neal did not know about it before the shooting. The prosecutor also argued that to the extent Hopkins's conduct was admissible under section 1103, it was unduly prejudicial. The prosecutor took the position that Hopkins's behavior on the day in question was undisputed, including his statements to Neal and his girlfriend during their initial interaction, his dropping of his bicycle and running at them, and the fact he never touched either of them.
The trial court and parties continued to discuss the issue at length. The court then ruled that much of the evidence about Hopkins's mental-health issues was inadmissible because Neal was unaware of Hopkins's history. Apparently under a similar rationale, the court also excluded evidence of Hopkins's "history of methamphetamine use," but it ruled that the fact Hopkins "had meth in his system" when he died would be admitted. The court later reaffirmed this ruling, explaining that the fact Hopkins was on methamphetamine was "part of the whole picture of who Mr. Hopkins was that day," including because it "explain[ed] why [he], perhaps, wasn't using good judgment and being an aggressor."
As for evidence of Hopkins's character for violence, the trial court initially decided that, subject to section 352, it would "let enough come in to show that how [Hopkins] was acting that day is consistent with violence because a lot to do with whether or not someone thinks they're under attack is how does someone appear." In doing so, the court disagreed with the prosecutor's position that Hopkins's behavior was undisputed, observing that the prosecution's "case is that . . . there wasn't enough there for [Neal] to defend himself the way he did. The [d]efense is saying, yes, there was; [Hopkins] was scary when he was coming at [Neal], and it wasn't just somebody [who], you know, put his bicycle down and came after him." Explaining further, the court said, "In movies, they don't always tell you what's going on in someone's head, but you can tell the difference in a movie when someone's rushing at somebody, and . . . you know they're going to have maybe a barroom brawl, . . . [versus] when . . . they show someone rushing somebody [who] you know is crazy and is going to do something really, really bad."
After further consideration, however, the trial court reversed course. Relying on the prosecutor's promise to refrain from arguing that Hopkins "wasn't the aggressor here," the court ruled that evidence of Hopkins's violent character was inadmissible because his acts toward Neal were undisputed. The court indicated that if the prosecutor did argue that Hopkins was not the aggressor, it would "probably" permit the defense "to use some limited amount" of evidence of Hopkins's prior violent behavior.
b. The ruling after the prosecutor's opening statement
Despite the prosecutor's promise not to argue that Hopkins wasn't the aggressor, the prosecutor's opening statement failed to acknowledge the extent of Hopkins's role in initiating the encounter with Neal. Although the prosecutor stated that Hopkins dropped his bicycle and "ran up to [Neal] . . . and the girlfriend . . . to confront [Neal]," the prosecutor painted this as "a bad decision" that Hopkins made because he
"didn't know who he was dealing with. He didn't know that [Neal] was armed there at the ice cream store. He didn't know where the gun was, didn't see the gun, didn't know the gun was loaded. He also didn't know that [Neal] was not supposed to have this gun. He didn't know [Neal] had a prior criminal case. He didn't know that [Neal], just a few years earlier, committed an armed robbery with a firearm. He didn't know who he was dealing with. He didn't realize who he was getting into a confrontation with, and it cost him his life."
Neal did not contemporaneously object to these statements. But toward the end of the prosecution case, he filed a motion for reconsideration of the trial court's ruling excluding evidence of Hopkins's character for violence. The motion argued that "[t]hroughout the opening statement, examination of witnesses[,] and in arguments since the in limine ruling, the prosecution repeatedly insinuated and directly stated that Mr. Neal was the initial aggressor, Mr. Hopkins lacked the behavior and actions that would justify Mr. Neal's use of self-defense, and Mr. Neal subjectively and objectively had no right of self-defense. This is not the 'concession' that the prosecution explained to the court at the earlier hearing on this issue."
The trial court agreed with Neal that the prosecutor's opening statement and presentation of certain evidence justified revisiting the earlier ruling. The court observed that "it's definitely coming across as Mr. Neal is a bad person who's just going to use his gun no matter what for anything and he's the aggressor," and it found that the prosecutor was indeed attempting to "paint[] [Neal] as being a person prone to violence . . . [and] almost vouching for Mr. Hopkins." Addressing the prosecutor, the court stated, "[H]ow do you know that if [Neal] hadn't shot [Hopkins], we wouldn't be sitting here trying Mr. Hopkins for taking out that screwdriver and putting it through somebody's chest or, you know, . . . [Neal's girlfriend was] a pregnant lady, through her abdomen killing the fetus. I mean, you seem to . . . take as a given that Mr. Hopkins was . . . of pure heart and all he really wanted to do is maybe [have them] slap each other up, but that's not what's being tried here." The court ruled the defense could now introduce evidence about a single encounter Hopkins had with law enforcement during which he was "very aggressive" and had to be tased, excluding other evidence of Hopkins's violent behavior under section 352.
Neal later filed a motion renewing a request to introduce expert testimony on methamphetamine use and a motion to admit evidence of Hopkins's reputation for aggression among people other than law enforcement officers. The trial court denied both motions with little discussion.
Accordingly, the defense called a Contra Costa County sheriff's deputy to testify about a February 2017 incident at the Bethel Island mobile-home park where Hopkins lived. The deputy testified that the other deputies present at the scene told him Hopkins was known to have "violent tendencies." Based on this knowledge, the deputies grouped together to approach Hopkins, who was outside his mobile home "yelling pretty loud."
Hopkins, who was "very agitated" and had "clenched fists," approached the sheriff's deputies. He stopped when ordered to do so but "began throwing items out of his pockets," including "a screwdriver that was about a foot long." He also had "what appeared to be a pocket knife in . . . his pants pocket." Concerned that Hopkins might use the screwdriver as a weapon, the deputy directed him to back away from it, but Hopkins failed to comply.
Several seconds later, Hopkins retreated toward his mobile home. Believing that Hopkins might "retrieve a weapon or go and barricade himself inside his house," the sheriff's deputy tased him. Hopkins fell to one knee but "was able to fight through it somewhat," requiring two other deputies to subdue him. The deputy tased Hopkins again, and he could finally be handcuffed.
c. The ruling involving Hopkins's tattoo
While presenting its case, the defense sought to introduce evidence that Hopkins had a woodpecker tattoo. According to Neal's trial counsel, "the woodpecker . . . is frequently a tattoo that is worn . . . by members of the Peckerwoods, who are a white supremacist gang. They are . . . prevalent in Contra Costa County, particularly east Contra Costa County." Neal's counsel argued the evidence was relevant to "who was the aggressor and helps to explain to the jury . . . why this incident may have transpired and why Mr. Hopkins may have fixated on Mr. Neal and [his girlfriend], both of whom are African-American."
The trial court denied the defense's request on the basis that the proffered evidence was irrelevant and unduly prejudicial under section 352. In explaining its ruling, it told Neal's counsel, "[T]here's nothing in this . . . litigation that would in any way indicate that it's racially motivated, nor does it matter. You've got what you needed with the aggressiveness itself."
2. Discussion
Generally, "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) Section 1103, subdivision (a) (section 1103(a)), creates an exception to the rule barring character evidence whereby a criminal defendant may offer evidence "to prove conduct of the victim in conformity with the [victim's] character or trait of character." Even if evidence of a victim's character is relevant and admissible under section 1103(a), it may be excluded "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) We review evidentiary rulings, including those under sections 210 and 352, for an abuse of discretion. (People v. Sanchez (2019) 7 Cal.5th 14, 39; People v. Fuiava (2012) 53 Cal.4th 622, 663; People v. Gurule (2002) 28 Cal.4th 557, 614.)
Neal claims the trial court erred by "exclud[ing] a massive amount of evidence of Hopkins'[s] character, reputation for and prior acts of threats, aggression[,] and violence, his long-standing use of methamphetamine, his suicidal and homicidal ideation, his potential racial animus, and his significant ongoing irrational behavior and mental health issues." In so arguing, Neal does not clearly distinguish between the various categories of evidence or explain his legal theory for why each type was improperly excluded. The wide-ranging discussions below of this evidence makes it harder to parse the trial court's reasoning as to each category, but the rulings can be divided into two general categories: those excluding evidence as irrelevant under section 210 and those excluding evidence as unduly prejudicial under section 352. We discuss each in turn.
a. The evidence excluded as irrelevant
The trial court determined that much of the evidence of Hopkins's history of mental-health issues and methamphetamine abuse, including incidents that occurred in hospital settings, was irrelevant because Neal was unaware of this history. "Relevance is a two-part inquiry" requiring that (1) the fact to be proven be " 'of consequence to the determination of the action' " and (2) the evidence "have some 'tendency in reason' to prove that fact." (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1307, quoting § 210.) We agree with Neal that the evidence at issue met a basic threshold of relevance, because it bore on disputed issues involving whether he genuinely and reasonably believed the shooting was necessary to neutralize the threat Hopkins posed. Even though Neal did not know that Hopkins had mental-health and substance-abuse issues, evidence that Hopkins did have such issues, including suicidal impulses, that tended to make him confrontational corroborated Neal's testimony that the other man behaved erratically during their encounter—including, crucially, by continuing to approach even after Neal began shooting.
In arguing otherwise, the Attorney General relies on the principle that " '[e]vidence that a victim . . . previously threatened or harmed others is relevant to a defendant's claim of self[-]defense only if the defendant knew of the victim's prior threatening conduct.' " (Quoting People v. Bates (2019) 35 Cal.App.5th 1, 9-10 (Bates).) This statement is not as broad as it may first appear, and it does not establish that evidence of Hopkins's particular mental-health and substance-abuse issues was irrelevant merely because Neal did not know about them. In Bates, "there was no issue regarding the admissibility of [the victim's] prior threatening conduct," evidence of which was presented to the jury. (Bates, at p. 11.) Rather, "the instructional issue [on appeal] centered on whether the jury could consider [the victim's] alleged prior acts of violence in determining whether [the] defendant's beliefs and actions in killing him were reasonable." (Id. at p. 12.) Thus, while the quoted statement may stand for the proposition that evidence of a victim's prior acts is not relevant to proving the defendant's mind state, Bates does not suggest that such evidence is irrelevant per se in a self-defense case.
Rather, as Bates explained, there is a distinction between "[t]he admissibility of evidence to show a victim's conformity with a violent character" and its admissibility to show "whether a defendant's conduct or belief was reasonable when the defendant had no knowledge of the victim's violent character. While the former focuses on the victim's conduct, the latter focuses on the defendant's state of mind." (Bates, supra, 35 Cal.App.5th at p. 11.) Here, even putting aside the issue of Neal's mind state, Hopkins's history bore on disputed issues involving Hopkins's own conduct on the day in question. Although the Attorney General may be correct that it was "uncontested that Hopkins began a verbal confrontation and later charged at [Neal]," contested issues about Hopkins's conduct remained, including whether he reached for a weapon and whether he continued to approach after Neal began shooting.
Moreover, Bates involved the victim's prior threatening conduct, not a history of mental-health or substance-abuse problems that would bear on a person's appearance. In many cases, it will be true that a victim's past behavior unknown to the defendant will not permit any rational inferences about how the defendant perceived the victim. The evidence excluded as irrelevant here is different, however, because, contrary to the Attorney General's suggestion otherwise, Hopkins's mental-health and drug issues could have affected his "outward presentation" to an objectively reasonable person. (See, e.g., Crawford v. City of Bakersfield (9th Cir. 2019) 944 F.3d 1070, 1078-1079 [evidence that man killed by police officer was actually mentally ill relevant to whether man appeared mentally ill, and thus whether officer reasonably shot him, even though officer was unaware of man's past behavior].)
In reaching this conclusion, we do not mean to suggest that a person's mental-health or substance-abuse issues will necessarily affect his or her outward presentation, much less permit any reasonable inference that the person acted aggressively. As we discuss, however, Hopkins's particular issues did bear on his character for violence.
It is also significant that the trial court excluded the evidence at issue early in the trial, when the understanding was that evidence of Hopkins's character for violence would not be introduced. Even if this initial determination was within the court's "broad discretion to determine the relevance of evidence" (People v. Gurule, supra, 28 Cal.4th at p. 614), the evidence of Hopkins's mental-health and substance-abuse issues became significantly more relevant once evidence of his character for violence could be presented. For example, the descriptions of Hopkins's encounters with law enforcement and involuntary hospitalizations reveal reports of his "homicidal ideation" and explicit threats to kill others. As recently as a month before his death, Hopkins was "yelling about murdering people" and "told officers he could hear voices that were instructing him to hurt people."
Hopkins's heavy use of methamphetamine also bore on his character for violence. In renewing its request to introduce expert testimony on methamphetamine after the trial court ruled that evidence of Hopkins's character for violence would be admitted, the defense made an offer of proof that the expert would testify, among other things, that "[s]cientific studies consistently show increased violence and aggression in meth users" and "[m]eth psychosis generally is associated with violence." But the court apparently did not reevaluate the relevance of the challenged evidence once it determined that some evidence of Hopkins's character for violence would be admitted, stating its continuing belief that "mental health . . . [was not] an issue here" and that the fact Hopkins was on methamphetamine at the time of his death was sufficient "to put into context maybe how somebody appeared."
Having concluded the trial court erred by excluding the evidence at issue on relevance grounds, we cannot affirm the ruling on the ground that the court could have properly excluded it under section 352. As we discuss below, the court's rulings under section 352 did not constitute an abuse of discretion, and it is certainly conceivable that the court would have excluded much of the mental-health and substance-abuse evidence under that statute even if it determined the evidence was relevant under section 210. Unless "the evidence would have been excluded as a matter of law under . . . section 352," however, we cannot substitute our own judgment for the court's discretion. (People v. O'Shell, supra, 172 Cal.App.4th at p. 1309.) Here, the evidence that Hopkins had serious mental-health and substance-abuse issues was quite probative of disputed issues, and its "proper treatment" under "section 352 was, at most, a question upon which reasonable judges could disagree." (Ibid.) Thus, the error cannot be redeemed by the real possibility the court would have excluded the evidence under section 352.
The Attorney General suggests that the trial court did exclude "additional instances of Hopkins's history of aggression, drug use, or instability as more prejudicial than probative" under section 352. The portion of the record cited involved the court's determination under section 352 that it would not admit evidence of additional instances of Hopkins's violent behavior, but the court did not separately address evidence of mental-health or substance-abuse issues.
b. The evidence excluded under section 352
The trial court excluded the remaining evidence, most involving Hopkins's aggression and violence, under section 352. Neal argues at length that such evidence was relevant, but he does not articulate why the court abused its discretion under section 352. In particular, he does not acknowledge any ways in which the court might have permissibly limited this evidence, apparently contending it was error to exclude any of it. Given the sheer amount of evidence bearing on Hopkins's violence and aggression that the defense sought to introduce, Neal fails to show the court erred by excluding most of it under section 352.
Nor did the trial court err by excluding evidence of Hopkins's tattoo, which was unduly prejudicial if it was relevant at all. As the court correctly observed, there was no evidence that Hopkins's aggression toward Neal and his girlfriend was racially motivated. At best, the tattoo suggested Hopkins might be associated with a white supremacist gang and this might be why he targeted the couple, but Neal does not explain why Hopkins's motivations—which were unknown to him—bore on any material issue in the case. Although " ' " 'section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his defense[,]' " [citation] [t]his does not mean that an unlimited inquiry may be made into collateral matters; the proffered evidence must have more than "slight-relevancy" to the issues presented.' " (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457.) In short, the court did not abuse its discretion under section 352.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of the Facts Underlying Neal's Juvenile Adjudication.
Neal also claims that the trial court erred by allowing "a significant amount of testimony, evidence[,] and argument regarding the facts underlying [his] juvenile robbery case." In this section of our opinion, we reject the claim and conclude that the court properly allowed the introduction of this evidence to establish Neal's character for violence. But in the following section, we conclude that the prosecutor violated the court's evidentiary rulings regarding this evidence by using it to attack Neal's credibility.
1. Additional facts
Neal was charged in Count Two with unlawful firearm activity based on an alleged prior juvenile adjudication for robbery, which was also alleged to be a strike. Briefly, in 2014, when he was 16 years old, he was accused of stealing items from a group of six other minors after threatening them with a gun, and he later pleaded no contest to one count of second degree robbery.
Before trial, the trial court and parties discussed how the juvenile adjudication could be used other than to prove an element of Count Two and the strike allegation. The court had not yet made its initial ruling excluding evidence of Hopkins's character for violence, and the prosecutor agreed that if such evidence was admitted, he could not present evidence of Neal's character for violence until the prosecution's rebuttal case. The prosecutor indicated he also intended to use the juvenile adjudication, a crime of moral turpitude, to impeach Neal, and the court confirmed the adjudication could be used for this purpose.
It eventually became clear that Neal would not enter a plea to Count Two or stipulate to the juvenile adjudication. The trial court and parties then discussed what the prosecutor could say in his opening statement about the adjudication. The court ruled that the prosecutor could mention "a robbery with a gun and juvenile adjudication and it bars [Neal] from having a firearm until age 30," but not that "it was a robbery of [six] kids."
As mentioned above, the prosecutor's opening statement prompted Neal to file a motion for reconsideration of the trial court's ruling excluding evidence of Hopkins's violent character. In addressing the issue, the trial court observed that by arguing that Hopkins "didn't know who he was dealing with," the prosecutor "took [the] prior [adjudication] out of being relevant for Count Two, having the firearm when you're not supposed to, and started making it that there's a person here [Neal] who . . . has a character trait for aggressiveness." The court also agreed with the defense that "the way it came across is that [the adjudication] was not being used just for the discrete purpose of proving up Count Two; that fact, [the prosecutor] was signaling to the jury, is something that you should consider when evaluating the subjective and objective reasoning of [Neal's] actions."
After the trial court ruled that Neal could introduce evidence about the February 2017 encounter between Hopkins and the sheriff's deputies, the discussion turned to what evidence the prosecutor could now introduce about the facts underlying the juvenile adjudication. The court indicated it would admit evidence that there were six robbery victims, at which point Neal objected under section 352 on the basis that he had "admitted to [only] a single robbery and single use" as part of his plea. The court affirmed that the prosecution could establish the basic conduct underlying the juvenile adjudication, not just the fact of the adjudication itself, including evidence that Neal committed a robbery of six victims with a gun. The court observed that so long as Neal admitted to those facts during his testimony, there would be no need for the prosecution to call one of the victims to testify, but that otherwise a victim's testimony would be admissible for impeachment, in order to "prov[e] up the crime."
Subsequently, the prosecutor and Neal's trial counsel informed the trial court they had agreed the court could take judicial notice of the juvenile wardship petition—which reflected five other alleged counts that were dismissed after Neal's plea—instead of admitting the petition into evidence. After clarifying that Neal did not intend to stipulate to the element of unlawful firearm activity requiring a previous adjudication for a specified offense (see Pen. Code, § 29820, subd. (a)), the court declined to take judicial notice of the petition.
In so ruling, the trial court left open the possibility the parties could agree to a "sanitized" version of the petition removing references to the other offenses charged, but it declined "to pick and choose what gets sanitized." Neal objected under section 352 to introducing the entire petition, and the court reaffirmed that it had no duty to sanitize the petition. Ultimately, the parties agreed to redact from the petition the other five counts alleged.
During his direct testimony, Neal admitted that he "suffered a juvenile adjudication in juvenile court for a robbery with a use of a gun." He testified that he started carrying the gun he used to shoot Hopkins "for protection" after an incident during which four men, believing he was in a rival gang, pulled guns on him. On cross-examination, he stated he found the gun on some railroad tracks a few weeks after the men threatened him. He admitted that he "knew it was illegal for [him] to have a gun," at which point the prosecutor asked, "And you knew it was illegal because of your violent past, correct?" The trial court sustained the defense's objection to this question. The prosecutor then asked, "You knew it was illegal because you robbed someone before, correct?," drawing another sustained objection.
The prosecutor then questioned Neal about the details of the four men threatening him, eventually drawing a relevance objection that was sustained. The prosecutor also questioned Neal at length about why he carried the gun everywhere, including to innocuous locations like the hospital and Baskin-Robbins. Neal explained that "it didn't matter where [he and his girlfriend] were going" because he wanted to be ready for unexpected threats. He testified, "I'm not a[n] aggressive type of dude to where I act very tough with a gun[,] and I'm not quick to use it. I was just carrying it for protection."
The prosecutor seized on this statement to question Neal about the underlying facts of the juvenile case, asking, "[I]n the past [you] have been aggressive with a gun, correct?" Neal denied he had a gun during the incident and denied robbing anyone. He testified, "I was accused of this robbery, and I walked up to the police officer as these kids were there and . . . I was explaining to the police officer that this wasn't me, but at the time I was the only black kid in the neighborhood and these were kids that knew me." The prosecutor asked whether he was "wrongfully convicted of a robbery," and Neal responded, "No, I didn't say I was wrongfully convicted. I actually took a deal because all these kids were saying it was me."
The prosecutor also questioned Neal's girlfriend about Neal's juvenile record. The prosecutor asked whether she had "heard about [Neal's] violent past," and she responded that she did not "know the exact details, so [she did not] know if [it was] violent or not." The prosecutor then asked whether she knew about the robbery, and she stated that all she knew was that Neal had been in juvenile hall a few years earlier, where she was unable to visit him.
A.C., one of the robbery victims, was permitted to testify during the prosecution's rebuttal case. He testified that in November 2014, when he was 13 years old, he and a group of friends were in Antioch walking from one friend's house to another. Neal rode toward the boys on a bicycle and dismounted a few feet away. According to A.C., Neal then pulled a gun from his waistband, cocked it, and told the boys "to take off [their] stuff." Neal searched through their things and took certain items from A.C.'s friends.
The trial court originally suggested such testimony would be admissible to impeach Neal if he denied committing the robbery, but it later clarified that the testimony was admitted under section 1103 to show that "on a different occasion, [Neal] apparently had a gun and made threats."
The prosecutor also elicited from A.C. tangential details about the robbery, including a description of Neal's gun and the fact that the boys were on their way to play hide and seek when Neal confronted them. The defense objected when the prosecutor asked A.C. whether he knew "the difference between a revolver and semiautomatic," and the trial court directed, "These parts aren't relevant, just for to the 1103 issue, so narrow it down." After a few more questions, the defense objected, and the court agreed, that the questioning was "well outside the scope of what this is being intended for." The prosecutor asked for and obtained "permission to lead to get right to the point" and then asked A.C., "Did the [d]efendant tell you he would shoot you in the face if you guys didn't cooperate?" A.C. responded affirmatively. The prosecutor started to question A.C. about which items Neal had stolen from his and his friends, drawing another sustained objection, and the prosecutor concluded his examination.
After the parties presented their cases, the trial court admitted People's Exhibit 78, consisting of the redacted juvenile wardship petition, the minute order reflecting Neal's no-contest admission to the robbery, and the redacted dispositional-hearing minute order reflecting he was adjudged a ward of the court. Although the petition did not include the other five counts charged, the first minute order indicated that the petition was dismissed as to "Cts. 2, 3, 4, 5, 6."
2. Discussion
Neal claims that "[w]hile the fact of [his] prior juvenile adjudication for a single count of robbery may have been admissible," the trial court erred by admitting "far more than this, including . . . highly damaging testimony from [A.C.] as to the facts of the underlying robbery, [as well as] . . . the Juvenile Wardship Petition and related minute orders in the juvenile robbery case, which contained additional prejudicial and irrelevant information." Again, we review the court's evidentiary rulings for an abuse of discretion. (People v. Sanchez, supra, 7 Cal.5th at p. 39.)
a. Exhibit 78
Neal argues that Exhibit 78 was not "necessary" to prove an element of Count Two or the prior strike allegation, because "court records reflecting, simply, the juvenile adjudication for robbery . . . and the fact of [his] having been adjudged a ward of the juvenile court based on that offense" would have sufficed. Indeed, he claims that no documentary evidence at all was necessary, because even though he "declined to stipulate to [the] adjudication as an element of Count Two or as a prior strike, [he] admitted the . . . adjudication during his direct testimony."
We are not persuaded. Neal does not identify any records from the prior adjudication other than those in Exhibit 78 that were available and admissible to prove the fact of the adjudication. Although he sought to avoid admission of the wardship petition in particular by agreeing that the trial court could take judicial notice of it, on appeal he does not challenge the court's refusal to do so. In any case, because he declined to stipulate to the adjudication, the court could not have properly taken judicial notice of it. (See People v. Barre (1992) 11 Cal.App.4th 961, 965-966 [trial court deprived defendant of right to jury trial on prior-conviction allegation by taking judicial notice of conviction].)
We are also unpersuaded by Neal's claim that his admission to having a juvenile adjudication sufficed to prove that element of Count Two and the strike allegation. Neal testified only that he had a "juvenile adjudication in juvenile court for a robbery with a use of a gun." He did not identify which statute he was found to have violated or state whether he was adjudged a ward of the juvenile court, however, information generally needed to prove a violation of Penal Code section 29820. (See Pen. Code, § 29820, subd. (a).) Nor did he testify that the adjudication occurred in California. If his testimony had been the only evidence of the adjudication, these omissions would have thwarted the jury's ability to determine whether Penal Code section 29820's requirements were met, not to mention to the trial court's ability to determine whether the adjudication was a strike. (See People v. Gallardo (2017) 4 Cal.5th 120, 123.)
Neal also contends that even if Exhibit 78 was generally admissible to prove the fact of his prior adjudication, it contained the following extraneous, unduly prejudicial information that the trial court should have excluded under section 352: that the sustained juvenile count was against a victim other than A.C.; that Neal "admitted to using a firearm; that 'wardship with no termination date' was imposed; that five additional unspecified counts were dismissed; that [he] was facing up to 15 years in a locked facility including 'DJJ'; and that [he] was detained on November 24, 2014, and remained in custody in Juvenile Hall for some period thereafter." But once the court declined to take judicial notice of the wardship petition, Neal did not ask that any particular portions of it or the other documents in Exhibit 78 be redacted, much less argue that redactions were required under section 352. Some redactions were made with the prosecutor's agreement, and Neal never suggested they were insufficient. He thus forfeited this objection by failing to raise it below, as we cannot find that the court abused its discretion by admitting Exhibit 78 without redactions that were never requested. (See § 353, subd. (a); People v. Gomez (2018) 6 Cal.5th 243, 286.)
b. A.C.'s testimony
Neal contends that A.C.'s testimony, the primary evidence of the conduct underlying the juvenile adjudication, was inadmissible under any of the following theories: (1) to prove an element of Count Two or the prior-strike allegation; (2) to prove Neal's character for violence under section 1103, subdivision (b) (section 1103(b)); or (3) to impeach Neal's testimony.
To begin with, we need not discuss Neal's argument that the conduct underlying the juvenile adjudication was inadmissible to prove either Count Two or the prior-strike allegation. In response to this claim, the Attorney General argues that the prosecution was not limited to proving its case in a particular manner, namely, by introducing only the documents from the adjudication as such proof. Although we tend to agree with Neal that A.C.'s testimony contained several details about the underlying conduct that were unnecessary to establish an element of Count Two or a prior strike, we need not resolve the issue. As the Attorney General points out, it does not appear that A.C.'s testimony was even admitted on this basis. And even if it was, the other justifications for the testimony's admission authorize a broader range of potential information about the underlying conduct.
Therefore, we turn to whether A.C.'s testimony was properly admitted on another basis. We conclude that the trial court did not err by admitting the testimony to show Neal's character for violence and did not abuse its discretion by declining to exclude the testimony under section 352.
1. A.C.'s testimony was generally admissible under section 1103(b).
As mentioned above, evidence of a victim's character for violence is admissible in a criminal case to prove conduct in conformity with that character. (§ 1103(a).) If a defendant introduces such evidence, the prosecution may then introduce evidence of the defendant's character for violence. (§ 1103(b).) "In other words, if . . . a defendant offers evidence to establish that the victim was a violent person, thereby inviting the jury to infer that the victim acted violently during the events in question, then the prosecution is permitted to introduce evidence that . . . the defendant was a violent person, from which the jury might infer it was the defendant who acted violently." (People v. Fuiava, supra, 53 Cal.4th at p. 696.)
A prior felony conviction involving moral turpitude is admissible to impeach a witness on the theory that, even if the prior crime did not involve dishonesty, "moral depravity of any kind has some 'tendency in reason' [citation] to shake one's confidence in [the witness's] honesty." (People v. Castro (1985) 38 Cal.3d 301, 315; People v. Gutierrez (2018) 28 Cal.App.5th 85, 88.) "Evidence of circumstances underlying a conviction is admissible to impeach credibility if the proponent demonstrates that the evidence has 'any tendency in reason' to disprove credibility," although such evidence remains subject to exclusion under section 352. (People v. Dalton (2019) 7 Cal.5th 166, 214; Gutierrez, at p. 89.) In addition, "[i]f a witness seeks to mislead the jury or minimize the facts" about the prior conviction, some "further questioning is proper." (People v. Smith (2003) 30 Cal.4th 581, 634.) These principles apply to juvenile adjudications. (See People v. Bedolla (2018) 28 Cal.App.5th 535, 551.)
The record is somewhat ambiguous about the basis on which the trial court admitted A.C.'s testimony. Originally, the court indicated that A.C.'s testimony would be admitted if Neal denied committing a robbery of six victims with a gun, stating that it was "easiest [to] . . . look[] at it as impeachment, but it would be proving up the crime." After Neal admitted the juvenile adjudication but denied committing the robbery, the court stated that A.C.'s testimony was admissible under section 1103 to prove Neal's character for violence. Given that the court cited section 1103 in sustaining a relevance objection to A.C.'s testimony, and in light of its later treatment of the prosecutor's reliance on the adjudication in closing argument (discussed in more detail below), we believe the court's ruling is best understood as follows: A.C. could testify about the details of the robbery to establish Neal's character for violence under section 1103, but the testimony could not be used to impeach Neal's denial that he committed a robbery.
Neal complains that the prosecutor violated section 1103 by raising Neal's character for violence in the opening statement, before Neal introduced any evidence of Hopkins's character for violence. But as discussed above, the prosecutor's opening statement enabled Neal to successfully move for reconsideration of the initial ruling excluding evidence of Hopkins's violent character. In ruling that such evidence would now be admitted, the trial court sought to confirm with Neal's trial counsel that "even though procedurally it didn't go quite right" under section 1103, he was "satisfied" that the new ruling "somewhat cure[d]" the fact that the prosecutor had raised the issue first. Neal's counsel responded that he "[could not] change what happened" and was "not asking for a mistrial at this point." Thus, to the extent Neal now argues that the procedural irregularity was grounds to exclude evidence about the conduct underlying his juvenile adjudication, he forfeited the issue. And other than this procedural irregularity, Neal does not identify any reason that A.C.'s testimony failed to meet the requirements of admissibility under section 1103(b). Therefore, we conclude that it was admissible under that provision.
2. A.C.'s testimony was not unduly prejudicial under section 352.
Neal claims that even if A.C.'s testimony was otherwise admissible, the trial court should have excluded it under section 352 because it had "minimal probative value" yet was "highly prejudicial." No abuse of discretion appears.
Neal argues that A.C.'s testimony was of very limited relevance as evidence of either Neal's character for violence or his lack of veracity. As to his character for violence, Neal argues that the fact "Hopkins was the aggressor" was essentially undisputed, so "[t]he issue was not who was the aggressor, or whether [Neal] was a violent person, but rather, the reasonableness of [his] belief in the need to use deadly force." Thus, Neal claims, "[t]he focus should have been on how Hopkins appeared to a reasonable person, and how a reasonable person would respond, not on [Neal's] prior robbery case." And as to his own credibility, Neal claims that "for the most part, [it] was not at issue," pointing to the relative lack of evidence contradicting his claims that (1) Hopkins had a weapon, (2) he did not shoot Hopkins while the other man was on the ground, and (3) he remained "calm" during the encounter.
We agree with Neal that the crucial issue was whether he reasonably believed he needed to use deadly force to respond to the threat Hopkins posed. But Neal's character for violence and his credibility were both clearly relevant to this issue. For example, contrary to Neal's claim that his testimony about the shooting was essentially uncontradicted, the evidence conflicted as to whether he shot Hopkins after Hopkins was already on the ground. If Neal did shoot Hopkins after the other man was down, then it tended to prove that Neal's use of force against Hopkins was unreasonable. And the evidence that Neal used a gun to threaten the six minors during the prior robbery tended to support the conclusion that he shot Hopkins after Hopkins was down, despite his own testimony to the contrary, because it suggested a readiness to act violently.
Neal also fails to demonstrate that the evidence's probative value was substantially outweighed by a danger of undue prejudice. He does not discuss the prejudicial nature of the evidence except to characterize it as demonstrating he committed "robbery with a gun of [six] children." " ' "In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citations.]' [Citation.] ' "Undue prejudice" refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) As suggested above, the fact that Neal used a gun during the prior offense was probative of his character for violence. While the detail that six other minors were involved was of minimal relevance, we cannot say that it was so inflammatory as to prompt the jury to convict Neal on an improper basis. Other factors tended to reduce the danger that the jury would rely on the juvenile adjudication or A.C.'s testimony to do so, including that robbery is a less serious offense than the charged offense of murder, Neal committed the robbery when he was also a minor, and the legal system already held him accountable for it. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) In sum, the trial court did not abuse its discretion in admitting evidence of the underlying facts of the juvenile adjudication to establish Neal's character for violence.
C. The Prosecutor Improperly Relied on the Facts Underlying the Juvenile Adjudication to Argue that Neal Was Not Credible.
Neal argues that the prosecutor committed misconduct throughout the trial. To prevail on such a claim, " 'the defendant need not show that the prosecutor acted in bad faith or with appreciation for the wrongfulness of the conduct, nor is a claim of prosecutorial misconduct defeated by a showing of the prosecutor's subjective good faith.' " (People v. Sandoval (2015) 62 Cal.4th 394, 438.) Thus, " 'the term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853 (Daveggio).) "Such error occurs, as a matter of state law, when a prosecutor 'engage[s] in deceptive or reprehensible tactics in order to persuade the trier of fact to convict.' [Citation.] Federal constitutional error occurs only when the prosecutor's actions 'comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant's right to due process of law.' " (Id. at p. 854.)
Neal identifies numerous instances of alleged prosecutorial error, most of which relate to his juvenile adjudication. Although we conclude that most of Neal's objections were either forfeited or fail on the merits, we agree that the prosecutor erred in closing argument, which we discuss separately from the other complained-of conduct.
1. The alleged misconduct during the prosecutor's opening statement and presentation of evidence
First, Neal claims that during the opening statement the prosecutor improperly relied on the juvenile adjudication to paint him as "a bad and violent person with a criminal past," in contravention of pre-trial rulings. Specifically, Neal contends that the prosecutor's statements were contrary to the trial court's initial ruling excluding evidence of Hopkins's character for violence, based on section 1103 and the prosecutor's supposed concession that Hopkins was the aggressor, as well as the court's ruling that the prosecutor could state only that Neal committed "a robbery with a gun and [had a] juvenile adjudication and it bars him from having a firearm until age 30."
The Attorney General argues that this argument is forfeited because Neal "neither contemporaneously objected to the prosecution opening statement nor requested an admonition." Generally, "in 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.) As mentioned above, Neal did not object during the opening statement. Although it did prompt him to renew his request to introduce evidence about Hopkins's character for violence, he specifically declined to move for a mistrial on the basis of the opening statement, and he did not ask the trial court to admonish the jury. We agree with the Attorney General that Neal thereby elected to pursue the remedy of introducing additional evidence. In doing so, Neal forfeited his claim that the prosecutor's violation of the initial ruling warrants reversal. (See People v. Valdez (2004) 32 Cal.4th 73, 124-125.)
Similarly, Neal complains that during the prosecution's case-in-chief the prosecutor continued trying "to establish both that [Neal] was in fact the aggressor . . . and that he was a violent person with a violent past, despite the alleged concession that Hopkins was the aggressor." Neal does not identify any specific instances of such objectionable conduct, and it appears he is referring to questioning that occurred before the trial court reconsidered its initial ruling and determined that evidence of Hopkins's violent character would be admitted. But again, by choosing to introduce evidence of Hopkins's violent character instead of seeking a mistrial, Neal forfeited his objections to any violation of the initial ruling.
Neal also claims that "the prosecutor was overzealous in his presentation of evidence" involving the robbery and Neal's possession of a gun at Baskin-Robbins, based on the prosecutor's examination of Neal, his girlfriend, and A.C. According to Neal, the prosecutor "grilled him extensively about his having robbed [six] children at gunpoint," "grilled [him] about how and why he had obtained the gun used in the current case," "questioned [him] extensively about the incident in which four guys pulled guns on [him]," and "sarcastically" questioned him about carrying a gun everywhere. Neal also complains that the prosecutor elicited prejudicial details about the robbery from A.C., including that Neal "held up [six] children at gunpoint, asked them to strip, and demanded their things, while they were on their way to play hide-and-seek," as well as "the additional prejudicial fact" from Neal's girlfriend that Neal went to juvenile hall for the robbery.
To the extent Neal complains that the prosecutor's questioning elicited inadmissible evidence, we reject the claim. " 'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.' " (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) Rather, claims that a prosecutor elicited inadmissible testimony are generally equivalent to claims that the evidence was erroneously admitted. (See id. at p. 380.) As we have discussed, much of A.C.'s testimony about the robbery, and by extension Neal's testimony about the same, was admissible under section 1103(b). In addition, the trial court ultimately sustained relevance objections to several of the prosecutor's questions of Neal and A.C., limiting the damage. (See People v. Trinh (2014) 59 Cal.4th 216, 248-249.) Although the court later suggested that the prosecutor elicited some irrelevant testimony about the robbery and related topics, the prosecutor did not persistently ask questions ruled impermissible. (Cf. ibid.)
Neal also objects to the prosecutor's tone in questioning him. "An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking . . . relevant testimony. Often it is apparent that the questioner does not even expect an answer. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (People v. Chatman, supra, 38 Cal.4th at p. 384.) On the other hand, "[e]ffective and legitimate cross-examination may involve assertive and even harsh questioning," and the fact that questioning "is confrontational does not make it argumentative." (People v. Armstrong (2019) 6 Cal.5th 735, 796.) In particular, "harsh and colorful attacks on the credibility of opposing witnesses are permissible." (People v. Arias (1996) 13 Cal.4th 92, 162, italics omitted.)
As the Attorney General observes, the defense did not object to the prosecutor's questioning of Neal about the circumstances under which he found the gun or why he kept and carried it. The only question objected to, on relevance grounds, was why the four men thought Neal was in a gang, and the trial court sustained the objection. Thus, the argument is forfeited. In any case, Neal does not identify any questions that crossed the line from confrontational to argumentative, and we conclude that as a whole, the prosecutor's cross-examination of him did not rise to the level of prosecutorial error.
Neal identifies two "other examples of overreaching by the prosecutor" that occurred before closing arguments and are unrelated to the juvenile adjudication. He complains that after one witness testified that he heard a woman say "Let it go" a "couple times," the prosecutor characterized that testimony as being that the woman said the phrase "repeatedly." We agree with the Attorney General that this is "a distinction without any difference" and the prosecutor's statement was not objectionable.
Neal also objects to the prosecutor's questioning of his girlfriend about her acknowledgment that, immediately after the shooting, she asked him, "Why did you do that?" The prosecutor asked several questions to highlight that she had not seen anything, such as a weapon, to indicate that the shooting was justified. The trial court later commented that this testimony was not probative, since Neal's girlfriend's back was to Hopkins when the shooting occurred. We conclude that while the questioning may have made too much of the girlfriend's statement, it did not rise to the level of prosecutorial error.
2. The prosecutorial error in closing argument
Neal also claims that the prosecutor committed misconduct in closing argument. " ' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom." ' " (People v. Ward (2005) 36 Cal.4th 186, 215.) A prosecutor cannot, however, " ' "make arguments to the jury that give it the impression that 'emotion may reign over reason,' [or] present 'irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.' " ' " (Daveggio, supra, 4 Cal.5th at p. 859.) When a claim of prosecutorial error " 'focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Smithey (1999) 20 Cal.4th 936, 960.)
During closing argument, the prosecutor focused on Neal's credibility about various topics, including the robbery underlying the juvenile adjudication. On that point, the prosecutor argued that Neal "lied about his prior robbery offense. I mean, he got on the stand, looked at you and said, no, I didn't do it. I didn't do it. I didn't rob those kids as they were just on their way to play hide and seek. Didn't happen." Continuing on this point, the prosecutor then told the jury it would get an exhibit (Exhibit 78) "where there's a sustained juvenile petition," at which point the defense objected to "[i]mproper use of this evidence" and the trial court sustained the objection.
During the lunch break that immediately followed, the trial court and parties discussed the objection in more detail. Neal's trial counsel argued that the prosecutor was "trying to use the [juvenile adjudication] to say that [Neal is] lying about the [section] 1103" incident while "also implying that a single no-contest plea somehow is evidence that [Neal is] lying about robbing six people, which is mixing the uses of this evidence and is highly inappropriate." The court agreed, explaining the adjudication could be used to "impeach . . . [Neal's] credibility because it's moral turpitude," but A.C.'s testimony could not be used "to then start saying that when [Neal] said he didn't rob all these kids that he's lying up here."
In particular, the trial court explained that despite admitting the juvenile adjudication, Neal "didn't lie in court" by denying the robbery, because "[i]t was a no-contest. How many people every day come through these courts and they plead out to things that maybe they don't really feel are right? Whether they feel that if the law actually got applied a certain way, they wouldn't be guilty, whatever, they are figuring out what to do with it based upon advice of counsel." The prosecutor said the defense could "argue it that way" and he could "certainly argue it the other way," but the court disagreed, indicating that the jurors "don't understand all this." After emphasizing the prior adjudication could be used only to demonstrate "moral turpitude, so it goes to credibility, and . . . for an element of Count Two, period," the court cautioned the prosecutor, "[Y]ou're overreaching. You're going to end up with problems."
Before resuming after lunch, the trial court and parties discussed the issue again. The court emphasized that "we're not going to re-try that juvenile adjudication" and expressed its view that the cross-examination of Neal about the robbery's details "went too far." Addressing the prosecutor, it explained, "You can argue that [Neal] admitted to the adjudication. You can then talk about what [A.C.] had testified to about what came in as evidence. You can use those facts to say [Neal] has been violent in the past. [¶] . . . [¶] . . . [B]ut we don't re-try the whole case."
The defense moved for a mistrial, pointing out that the prosecutor had "been on notice of this point" since opening statements but continued to make improper arguments. The trial court denied the motion and a request for a curative instruction, but it cautioned the prosecutor to be careful about using the facts underlying the robbery to impeach Neal: "[I]t is a side issue and one that you really can't use. . . . [O]nce [Neal] admitted the conviction, he's not required to then go through the facts and say they were all right, that they were all correct and he didn't disagree with some of the things alleged . . . . [¶] . . . [¶] You know, if your case, if you're feeling it's so weak you need to overreach, I think you need to rethink your case, but you are overreaching, not enough to get a mistrial, but if more stuff keeps coming in like this, I will be listening to it because this is overreaching with the facts."
Upon resuming his closing statement, the prosecutor displayed the following PowerPoint slide:
THE DEFENDANT LIES:
#1 He lied to the police.
#2 He lied about his prior robbery offense.
#3 He lied about remaining calm.
How do you know that is not true:
The UPS worker hear[d] two men arguing.
The defendant's girlfriend tried to calm the defendant down.
"Let it go." "Let it go."
The defendant has a violent history.
The defendant's girlfriend knew his history.
The prosecutor went through the list of evidence to support the third argument, that Neal lied about remaining calm when Hopkins confronted him. Over the defense's objection, the prosecutor argued the following in regard to the point that "[t]he defendant has a violent history": "His prior violent history came in to show he's a person with a violent character, and in certain situations, he will act out aggressively and violently. [¶] There is zero chance that as he's sitting there at [three] o'clock in the afternoon and he's having a verbal argument with this guy that he's remaining perfectly calm. It just didn't happen. There's no way that happened. [¶] And on his violent history, you heard from his girlfriend who said she didn't know about that, which again—" The defense objected again, and the trial court halted the proceedings to discuss the issue outside the jury's presence.
The trial court observed that the slide improperly made it sound like Neal "lies because he has a violent history." The prosecutor explained that he meant that Neal's violent history demonstrated that "he doesn't remain calm," contrary to Neal's claim that he was calm during the encounter with Hopkins. The court and Neal's trial counsel also took issue with the slide's claim that Neal's girlfriend knew about his "violent history," questioning whether there was any evidence to support that claim. As the court indicated, she was truthful about not visiting Neal in juvenile hall, since minors are not allowed to visit other minors. As for the prosecutor's claim that it was "completely unreasonable" to believe she did not know why Neal was in juvenile hall, the court stated that if she had talked to Neal about it, "then she knows he doesn't have a violent past, right, because she believed the boyfriend when he said I didn't do it." The court told the prosecutor, "You keep trying to try this case . . . by overreaching, and it's really getting tedious."
Neal's trial counsel again moved for a mistrial, arguing that the prosecutor was "[o]nce again . . . trying to retry the juvenile case. That's not what it came in for. He's muddying the waters. He's doing it again." The prosecutor responded that he showed the slide to Neal's counsel before closing argument, and the trial court responded, "You know what? I don't care right now. I—I just want to make sure I don't have a mistrial." It directed the prosecutor "to clarify for [the jurors] that . . . it's not true that [Neal] remained calm, and these are the things." It also indicated that the prosecutor could "argue based on circumstantial evidence" that Neal's girlfriend "lied on the stand," but it cautioned, "You know, if you really are going to go down that path, you better be very careful about what you say . . . . [¶] . . . [¶] . . . [I]t gets over the line again and . . . we're going to have a problem."
Once the jurors returned, the prosecutor explained the "violent history" point on the slide by saying it demonstrated Neal was "not a person [who] remains calm." As to the slide's point about Neal's girlfriend, the prosecutor clarified that it "has nothing to do [with] whether or not [Neal] lied about remaining calm; it has more to do with the girlfriend's credibility. [¶] She took the stand, she said that she didn't know anything about his past . . . , which, again, is not believable. They were together before it happened, they were together after it happened and the entire time." After another defense objection, the prosecutor concluded, "To say that a girlfriend wouldn't know what's going on with her boyfriend is ridiculous, right? I'll just leave it at that."
There is no real dispute that the prosecutor committed error in closing argument. The trial court made clear that the prosecutor was not to use A.C.'s testimony about the robbery to impeach Neal, yet he did exactly that, arguing that Neal was a liar because he denied committing the robbery. In doing so, the prosecutor deceptively suggested that by admitting to the juvenile adjudication, Neal effectively admitted he committed the robbery. The court explained why this was legally untrue and found the jury would not appreciate the distinction.
Yet after being warned not to argue that Neal was a liar because he denied committing the robbery, the prosecutor immediately displayed a slide that again conveyed that message. As the trial court explained, the slide improperly made it sound as if Neal was lying because he had "a violent history," i.e., because he committed a robbery during which he threatened the other boys with a gun. The reference to Neal's girlfriend's knowledge of that history was also misleading because, as the court explained, there was little indication that Neal's girlfriend was lying about not knowing any details about the juvenile adjudication. Moreover, it enforced the suggestion that Neal's commission of the robbery was linked to the issue of credibility.
The Attorney General presents no serious argument that prosecutorial error did not occur, as he appears to misinterpret Neal's claim as being that the prosecutor's closing argument improperly "contended that [Neal] and [Neal's girlfriend] had lied." We agree that the trial court did not generally bar the prosecutor from attacking Neal's and his girlfriend's credibility. But the court did rule that details about the robbery could not be used to impeach Neal's testimony, and the prosecutor did violate that ruling in a way that was reasonably likely to mislead the jury, as the court effectively found. This constituted prosecutorial error.
D. The Evidentiary and Prosecutorial Errors Were Prejudicial.
To summarize, the trial court erred by excluding considerable evidence of Hopkins's history of mental-health issues and methamphetamine abuse, and the prosecutor erred in closing argument by attacking Neal's credibility on the basis that Neal denied committing robbery. We conclude that the cumulative impact of these errors was prejudicial.
We begin with the appropriate standard for assessing prejudice. Neal claims that since the excluded evidence of Hopkins's character "would have supported [Neal's] main defense at trial, i.e., that he acted in reasonable self-defense," the exclusion "violated [his] federal constitutional due process rights to a fair trial and to present a defense." As a result, he argues, the applicable standard for assessing prejudice is that of Chapman v. California (1967) 386 U.S. 18, 24. We disagree. "[O]nly evidentiary error amounting to a complete preclusion of a defense violates a defendant's federal constitutional right to present a defense." (People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4, italics added.) Here, Neal was permitted to present significant other evidence to support his defense, including the sheriff deputy's testimony about the incident at Hopkins's home, other witnesses' descriptions of Hopkins's erratic behavior on the day in question, and the fact that Hopkins was on methamphetamine when he died. As a result, the applicable standard for assessing the effect of the trial court's evidentiary error is that of People v. Watson (1956) 46 Cal.2d 818, 836.
Similarly, despite Neal's cursory claim that the prosecutor's conduct " 'so infused the trial with unfairness as to deny due process of law,' " we conclude that the prosecutorial error we have identified should also be assessed under the state-law standard. (See Daveggio, supra, 4 Cal.5th at p. 854.) The prosecutor's conduct in closing argument, while deceptive, did not in and of itself deny Neal a fair trial.
Were the exclusion of evidence of Hopkins's mental-health issues and substance abuse the only error that occurred, we might well conclude it was harmless. When we consider the evidentiary ruling alongside the prosecutorial error, however, the collective prejudice is apparent. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' [Citation.] When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required." (People v. Williams (2009) 170 Cal.App.4th 587, 646.) A cumulative-error analysis is especially apt in this case because the erroneous exclusion of evidence of Hopkins's character, which protected Hopkins's image, was compounded by the prosecutor's improper reliance on the facts underlying Neal's juvenile adjudication, which tarnished Neal's image. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 847; People v. Holt (1984) 37 Cal.3d 436, 458-459; People v. Jandres (2014) 226 Cal.App.4th 340, 361.)
Here, we ask whether it is reasonably probable that, absent the errors, at least one juror would have voted to acquit Neal. (See People v. Soojian (2010) 190 Cal.App.4th 491, 520-521 [hung jury is more favorable result than guilty verdict].) In turn, a vote for acquittal instead of a conviction of voluntary manslaughter would require a finding that Neal's actual belief in the need for self-defense or defense of another was objectively reasonable. (See People v. Barton (1995) 12 Cal.4th 186, 199-200.)
The jury was instructed on voluntary manslaughter based on both imperfect self-defense or defense of another and heat of passion, but the defense's closing argument exclusively urged acquittal based on reasonable self-defense or defense of another.
The Attorney General claims that "[t]he facts of this case were largely undisputed, and any evidentiary dispute or prosecutorial statement was not material." We cannot agree. As discussed, there were significant factual disputes bearing on whether Neal's belief in the need to use deadly force was objectively reasonable, including whether he saw Hopkins reach for a weapon and whether he kept shooting at Hopkins after Hopkins fell. In turn, resolution of those issues hinged on Hopkins's behavior and Neal's credibility, which the evidentiary and prosecutorial errors directly affected.
Nor does the Attorney General identify any jury instructions or other circumstances that may have cured the errors. We recognize that after being told to do so, the prosecutor explained the PowerPoint slide to mean that Neal's "violent history" was proof Neal did not remain calm, as opposed to proof Neal was a liar in general. But the trial court did not admonish the jury on this point, and the jury instruction on the juvenile adjudication did not dispel the risk of confusion. To the contrary, the instruction's statement that the prior adjudication could be considered "for the limited purpose of assessing credibility of the defendant," while technically correct, did not clarify the underlying facts could not be considered for that purpose.
The record suggests the evidence about the robbery strongly affected the jury. After the verdicts, the trial court described the jury's reaction when Neal denied committing the robbery. Addressing Neal, it stated that "the jury was going with you," but then "you sat there and said, I didn't rob those kids; I didn't have a gun. You could literally hear the air change in here and the jurors went, Oh, my goodness. This person who has been presented to us as just a nice guy out with his girlfriend, he's not." --------
Moreover, although Neal forfeited his claims of error as to some of the prosecutor's conduct and we have concluded that other instances of that conduct did not rise to the level of error, this does not preclude us from considering the prosecutor's conduct as a whole in assessing the prejudicial impact of the errors that we have identified. The prosecutor engaged in a pattern of, if not intentionally violating the trial court's rulings, significantly misunderstanding those rulings, and did so to the defense's detriment. From the allusions to Neal's character for violence in opening argument, to the elicitation of irrelevant details about the robbery and Neal's gun possession, to the improper suggestions in closing argument that Neal was not credible because of the robbery, the prosecutor's overzealousness was a persistent issue, ultimately bringing the court to the brink of granting a mistrial. Given the record as a whole, the errors were cumulatively prejudicial.
III.
DISPOSITION
The conviction for voluntary manslaughter is reversed, and the conviction for unlawful firearm activity is affirmed. The sentence is vacated, and the matter is remanded for further proceedings consistent with this opinion.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Margulies, J. /s/_________
Sanchez, J.