Opinion
D070467
08-31-2017
THE PEOPLE, Plaintiff and Respondent, v. TYRONE YANCY, Defendant and Appellant.
Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF34888) APPEAL from a judgment of the Superior Court of Imperial County, Raymundo Ayala Cota, Judge. Reversed. Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tyrone Yancy was charged by first amended information with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The amended information also alleged that defendant personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)); that defendant had two prior strikes (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)); and that he had four prison priors (§ 667.5, subd. (b)).
Unless otherwise noted, all further statutory references are to the Penal Code.
A jury found defendant guilty of the charged offense and made a true finding on the great bodily injury enhancement. In a bifurcated proceeding, defendant admitted the truth of the two prior strikes and the four prison priors. The court sentenced defendant to 25 years to life on the charged offense, plus consecutive sentences of three years for the great bodily injury enhancement and four years for the prior prison convictions, for a total term of 32 years to life.
On appeal, defendant contends the prosecutor committed prejudicial misconduct in cross-examining defendant when the prosecutor asked defendant if he was an "angry person" and, when defendant said, "Well I can be . . . I think anybody can," next asked defendant if he had threatened the same prosecutor a few weeks before, which defendant denied. The prosecutor then asked defendant, "You don't remember telling the Court you threaten[ed] me a couple of weeks ago," to which defendant said, "No, I didn't."
Based on this questioning, defendant contends the court erred in denying his motions for mistrial and/or new trial. We agree. As such, we find it unnecessary to reach defendant's other contentions including that the court erred in admitting prior bad acts evidence under Evidence Code section 1101, subdivision (b). Reversed.
OVERVIEW
City of Brawley Sergeant Martha Heidelberg testified she was on patrol on the night of May 21, 2015 when she received a call about a fight at a trailer park. On arrival at the scene about 9:00 p.m., Sergeant Heidelberg contacted a male standing in front of a trailer. The man was bleeding. Once paramedics arrived and began treatment, Sergeant Heidelberg saw the man had cuts on his face and head, including a large cut to his nose, which appeared to be "hanging" from the man's face.
Agent Daniel Santiago testified he was working as a police officer for the City of Brawley on the night of the fight when he too was dispatched to the trailer park. Agent Santiago recalled there was no overhead lighting at the trailer park and it was quite dark when he arrived on scene. Once the victim received medical attention, Agent Santiago located the crime scene on the east side of a trailer, near where the victim had been contacted. Agent Santiago saw evidence of a scuffle in some gravel. There, he found a cellphone and a knife sheath, and observed blood droplets on the ground. Agent Santiago collected the knife sheath as evidence.
After obtaining a search warrant, the police forced entry into defendant's trailer. Because the trailer had no power, police had to use their flashlights to conduct the search. Agent Santiago testified they found a "fillet knife" on the countertop, next to the kitchen sink. Because there was water around the knife, Agent Santiago surmised the knife had been recently washed. Agent Santiago testified the fillet knife appeared to fit inside the knife sheath he found at the fight scene. Police also found a bloody tissue inside the trailer.
Victim Damien Flores testified that he knew defendant from the trailer park; that defendant approached him on the night of the fight and asked if Flores had any money; that in response, Flores just ignored defendant; that after retrieving his jacket, Flores went to his friend's trailer and opened the door; and that defendant in response pushed the trailer door closed. Flores testified this angered him and he said, " 'Let's handle this.' " When asked at trial what he meant by " 'Let's handle this,' " Flores stated if defendant wanted to fight, then they were going to fight because Flores did not want defendant to continue to "punk" him.
Flores testified that as he walked down some steps, defendant tackled him, causing Flores to fall to the ground. After Flores stood up, defendant rushed him. In response, Flores swung his fists at defendant, hitting him in the face. Flores then got on top of defendant. According to Flores, defendant overpowered him and rose to his feet. Flores, who was on his knees, grabbed one of defendant's arms, but defendant used his other arm to swing at Flores. It was then Flores realized that he was bleeding. Flores had not seen anything in defendant's hand as defendant swung at him. Shortly thereafter, defendant said, " 'Let go,' 'Let go of me.' " When Flores complied, defendant walked away. At that point, Flores asked a friend to call paramedics because blood was "squirting" from his face.
Flores testified he was contacted at the trailer park by Sergeant Heidelberg. On questioning, he denied knowing who had cut him. When asked on the witness stand why he then did not identify this person as defendant, Flores said, "That's just the way it is in the streets. You know? We just don't do stuff like that." When asked what he meant, Flores explained we just " 'don't snitch on each other.' "
Flores denied having a knife on the night of the fight. Flores testified that when he agreed to fight defendant, he did not believe weapons would be involved.
Flores on cross-examination testified that he met defendant a few months before the night of the fight; that at one point, he and defendant became friends and that he even stayed the night a few times in defendant's trailer after they partied together; that at some point, he gave "drugs" and some money to defendant; and that defendant believed Flores owed defendant more money because Flores had sold some "items" for defendant and he felt Flores had given him too little money in return.
Flores nonetheless denied the May 21 fight was over money. Instead, Flores testified they fought because defendant was "punk[ing] him" because that was defendant's "nature." When asked what he meant by "punk[ing]," Flores testified that because defendant did not work, defendant tried to intimidate him into giving defendant money. Flores further testified that defendant did not "know" him; that if defendant had known him, defendant would have realized that was "exactly the wrong thing to try to intimidate [Flores]" because Flores had been "picked on as a little kid"; and that, now older, Flores was "going to deal with it."
Flores nonetheless admitted there had been a dispute over money between him and defendant when Flores "went to go trade the drugs." When asked when he had made that trade, Flores stated it was about a week before the fight. Flores stated during that week, he had seen defendant at the trailer park and defendant had asked for money. Flores in response just ignored defendant.
Flores testified that, as a result of the fight, he received 21 staples and 17 stiches to his head and face region. Flores knew defendant had a "reputation" for carrying a knife, but Flores stated he was a "real man" and "[fought] with his hands."
Witness Monica Gonzalez testified she was working as an assistant manager at the trailer park when the fight took place; that sometime between 9:00 and 10:00 p.m. on May 21, she heard a "loud noise" that caught her attention; that after looking out the window and not seeing anything, she sat back down on her couch only to hear someone outside say, " 'Help me' " and " 'Let me go' "; and that the next time she looked out the window, she saw two people facing each other, arguing.
Gonzalez testified that she recognized the two men as defendant and Flores and that it was Flores who was saying " 'Help me' " and " 'Let me go.' " Although it was dark, Gonzalez could make out the identities of the men from the lights of nearby trailers. Gonzalez saw defendant punching and hitting Flores. As the fight continued, Gonzalez saw them go around the corner of a trailer.
Gonzalez called, but initially could not get through to, police. Shortly thereafter, Gonzalez, who was still looking out her window, saw the two men come back into view. This time, Gonzalez saw one of defendant's arms around Flores's neck and saw defendant using his other arm to punch Flores in the "facial area." Gonzalez did not see anything in defendant's hand as he swung at Flores. Gonzalez called police a second time and reported the fight. Scared, she closed the curtains in her window and waited for police.
Gonzalez testified that she had seen defendant with a knife before the night of the fight. She testified that on one occasion, defendant and a friend were in a trailer space belonging to someone else. Gonzalez told defendant and his friend to return to defendant's trailer. She estimated it was about 3:00 p.m. on a Friday when she made this request. About 9:00 p.m. later that night, defendant knocked on her door and told her to come outside. When she opened the door, defendant said, "Next time if you F'ing this -- with the B word -- coming and embarrassing me in front of my friends. I don't care. You're nobody here. You're going to see what I'm going to do." As defendant made this statement, Gonzalez testified he had a knife in his hand and was shaking it at her. Gonzalez estimated the knife was about nine inches long. In response, she slammed her door and called police.
Gonzalez described another incident before the fight when she saw defendant with a knife. While she was inside her trailer watching television, someone threw gravel at her trailer. Thinking it was kids, Gonzalez went to her window and saw defendant and another man arguing. Gonzalez saw defendant holding a knife, while the other man (not Flores) had his hands up and was saying, " 'Come on.' "
Gonzalez's daughter, A.C., testified she was home with her mother on May 21 when her mother yelled out to her about the fight. A.C. looked out her bedroom window and saw defendant striking Flores with his fists while on top of Flores. A.C. did not see any objects in defendant's hands as he repeatedly struck Flores. At some point, A.C. saw defendant get up and walk away. As he left, A.C. saw light "reflecting" from something "shiny" in defendant's hand but testified it "could have been anything."
A.C. testified before the night of the fight, defendant on one occasion came at her "with a knife." On this occasion, A.C. stated her family was in the process of moving between trailers. As she was carrying some items to another trailer, A.C. saw defendant. After defendant angrily said something to her, A.C. in response said the "F word." A.C. testified that defendant went inside his trailer; that she heard noises as if he was looking through "forks and spoons"; that when he came back outside he came towards her carrying a "kitchen knife"; and that she ran inside the trailer and called her mother and sister.
Witness Mike Pricola testified he was visiting a friend at the trailer park on the night of the fight. At some point while sitting outside, Pricola heard yelling. Pricola saw defendant, whom Pricola had previously encountered at the trailer park, on top of Flores, who Pricola also knew. Pricola heard Flores yell more than once, " 'Stop' " and " 'Get off me.' " On questioning later that night, Pricola told police that defendant had been in "control" of the fight with Flores. Pricola estimated the fight lasted about three or four minutes.
City of Brawley Detective Richard Davey II testified that, on the night of the fight, he arrived at the trailer park about 10:00 p.m.; that he saw the victim had several lacerations to his head and facial area; that at least one of those wounds was "deep," as Detective Davey could see "white" from the victim's skull while the victim was being treated at a hospital; and that after leaving the hospital, Detective Davey obtained a warrant and went back to the trailer park to search defendant's trailer.
Detective Davey testified that when they arrived to search defendant's trailer, defendant refused to come outside. After officers "breached" the door, they found defendant inside, in the bathroom. Defendant was arrested.
A search of the trailer revealed blood-soaked clothing and an 11-inch fillet knife on the kitchen counter next to the sink. Detective Davey testified the knife appeared to have just been washed and there were "reddish stains on the counter" where the knife was found. In addition, the knife appeared to have dried blood on its handle. Subsequent investigation showed the same " 'manufacturer's mark' " appeared both on the knife and the sheath found on the ground where the fight had taken place.
The day after the fight, Detective Davey interviewed defendant. Detective Davey noted defendant's hands had no lacerations or injuries. During the interview, defendant admitted he had washed the bloody knife. Defendant also admitted he cut Flores with a knife.
Defendant testified in his own defense. He testified he moved into the trailer park in November 2013 and lived there until his arrest in May 2015 for the fight with Flores. With respect to Gonzalez, defendant testified she became angry when he refused to become romantically involved with her; that he never threatened her with a knife; that he was arrested as a result of the incident with Gonzalez but ultimately this charge was dropped for lack of evidence, after he pleaded no contest to misdemeanor resisting arrest; and that he also never brandished a knife at A.C.
Regarding Flores, defendant testified that they met about two months before the May 21 fight; that they met at the trailer park; that Flores had lived with defendant for about a month, up until about a week before the fight; that at some point defendant asked Flores if Flores could sell some "old silver," "five diamonds" and "a lot of old stuff"; that after taking possession of such items, Flores never paid defendant any money; that as a result, defendant on several occasions approached Flores about the money; and that Flores finally gave defendant $40 out of Flores's unemployment check. Defendant estimated the diamonds were worth about $2,500 and the silver about $600 to $700.
Defendant continued to press Flores either for more money or for Flores to return the items. According to defendant, Flores ignored these requests. On the night of the fight, defendant saw Flores inside the trailer park. Defendant testified that he called over to Flores several times, but each time Flores ignored him. As a result, defendant approached Flores and said to Flores, "$20 and a half a gram of crystal methamphetamine for all of my property?" Flores said nothing in response.
Defendant testified that when Flores walked away, defendant followed and continued to make the same statement about $20 and a half-gram of methamphetamine. As they went up some trailer stairs, Flores told defendant, " 'You know what, I'm tired of this shit. Let's do this. Let's handle it.' " Believing Flores wanted to fight, defendant testified he told Flores, " 'Man, I don't want to fight. I just want to know what you've done with my property. I'm not here to fight. I want to know what you've done with my property.' "
As defendant continued to follow Flores, and after defendant repeated he did not want to fight, according to defendant Flores turned around and started "swinging" his "fists" at defendant. Defendant testified he swung back at Flores. As they fought, defendant lost his footing and fell to the ground. Defendant testified Flores in turn jumped on top of him and pinned him to the ground. Worried that somebody was going to get hurt, defendant testified he repeatedly yelled at Flores to "let [him] go."
While pinned on the ground, defendant next saw Flores's knife on the ground. Defendant described Flores's knife as a "black special ops knife" and stated he had seen Flores with that knife on "numerous occasions." Defendant testified that both he and Flores reached for the knife; that defendant grabbed the knife first; that once in possession of the knife, he "warned" Flores "again" to " 'Let [him] up' "; and that Flores again refused to let go of him.
Defendant stated he also had his own knife on his person on the night of the fight. When asked why he had a knife, defendant testified he carried it around the trailer park for "general purposes." When asked where defendant's knife was during the scuffle, defendant stated he "couldn't see it" and it likely was on the ground, "under [them]."
Because Flores refused to let defendant up despite defendant's repeated requests, defendant testified that he "took the knife and I went on the top of his head like that (demonstrating) about three or four times." The court described defendant's motion on the record as "two or three thrusting motions up and down as [defendant] testified when he mentioned his acts with the knife." After defendant again demanded he be let up, Flores stated, " 'You've cut me.' " Defendant testified that in response he said, "Yes, I did" because Flores still would not let defendant go. It was at that point defendant wrestled with, and rolled, Flores over, who ended up on his knees. Defendant testified they both then agreed to let each other go. Defendant then returned to his trailer.
DISCUSSION
A. Additional Background
The record shows that there was a lengthy conversation in chambers shortly after the prosecutor began his cross-examination of defendant; and that during this reported conversation, the issue was whether the prosecutor could rebut defendant's testimony that the charge against defendant for threatening Gonzalez with a knife was allegedly dismissed for lack of evidence.
After questioning resumed, the prosecutor established that the criminal threat charge was dismissed in return for defendant pleading no contest to the misdemeanor charge of resisting arrest. The record shows the prosecutor also impeached defendant with various prior convictions, in accordance with the court's in limine rulings. The prosecutor then turned to the instant case and questioned defendant about the valuation of the jewelry and silver that Flores sold for defendant, including why defendant gave these items to Flores to sell instead of himself going to a pawn shop or jewelry store and trying to sell them.
The prosecutor next questioned defendant about his relationship, or lack thereof, with Gonzalez. The prosecutor asked defendant if the reason for defendant's "bad relationship" with Gonzalez was because she had accidently turned off the power to his trailer, as she testified, as opposed to the fact defendant had turned down her advances, as he testified. The defendant in response stated, "[t]he power incident had nothing to do with it."
As the prosecutor pursued the issue of who turned off defendant's power, the following colloquy took place:
"[Prosecutor:] So [Gonzalez] . . . told you that [the owner of the trailer park] asked her to tell you [about the power]?
"[Defendant:] If I could be specific, my brother and I were standing behind my trailer. [¶] She [i.e., Gonzalez] was in another trailer. [¶] And I asked what had happened to my power. [¶] She said she didn't know at the time.
"Q. You didn't get anger [sic] at that time?
"A. No, I didn't.
"Q. You didn't get mad?
"A. No, I didn't.
"Q. Your power got cut off.
"A. No, I didn't.
"Q. You're not an angry person?
"A. Well, I can be. I think anybody can.
"Q. Did you threaten me a couple of weeks ago?
"A. No, I didn't.
"Q. You don't remember telling the Court you threaten [sic] me a couple of weeks ago?
"A. No, I didn't. No." (Italics added.)
The record shows defense counsel immediately asked to be heard at sidebar, and the court instead suggested they proceed in chambers. Outside the presence of the jury, defense counsel argued that the prosecutor's questioning of defendant concerning a threat defendant allegedly made to the prosecutor was "going to cause a lot of problems " because the prosecutor "put[] himself in a position of [being] a potential witness, complaining witness of a potential crime when he used the word 'threat.' " The prosecutor responded that while defendant made what the prosecutor believed was a "threatening statement" to him, the prosecutor did not consider the threat to rise to the level of a crime; that the statement was made in connection with a "Marsden/recusal motion"; and that two days after making this statement, defendant allegedly admitted in a different courtroom before a different judge that he made this threatening statement to the prosecutor.
See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court then cogently addressed the prosecutor as follows:
"Well, aside from the issue of the fact whether it happened or not, I think you've sort of thrown a monkey wrench into this thing because, first of all, you're talking about allegations of prior bad conduct. [¶] And the issue, at least it seems that you put into question, is whether this is a person that gets angry. I think that's where it all started. And then all of a sudden you end up testifying that you have been the subject of a threat, twice. [¶] And I think as far as it goes, [defense counsel] is right. You have just put yourself in a position of being cross-examined on whether this incident took place and the circumstances. And plus, you know, it arguably is a subject of a[n Evidence Code section] 352 analysis as well. [¶] We've had a witness here who has testified about the allegations against Mr. Yancy. We've had allegations of prior convictions that have been admitted. We've had allegations of the use of knives by certain witnesses, all of them admitted. All of us, we've discussed these in limine. [¶] But you never once discussed that you were going to try to also introduce evidence of prior misconduct against you. And now you have put the force of the district attorney's office and all that it has, along with all of its resources and indicia of dignity and respectability and reliability behind evidence that is to be used against the defendant. That's pretty tough. [¶] Now we've got a problem. And frankly, I don't know what to do with it." (Italics added.)
Defense counsel raised the issue of a mistrial. The court responded that such questioning "impact[ed] . . . defendant's right to a fair trial." The court noted, "That on top of everything else that [defendant] is denying any and all of these different things, then you [i.e., the prosecutor] put now into the equation one more alleged lie against the defendant, you know, about this threat against you. Personally. [¶] And we, you know, in all fairness, this is not something that was readily foreseeable that we would have an issue about anger, at least it didn't seem apparent to me."
The record shows the prosecutor suggested the court admonish the jury not to consider this line of questioning and to strike defendant's responses thereto. The defense argued that admonishment would not cure the impropriety because by asking defendant questions about the alleged threat, the prosecutor had put himself into the position of being a "potential witness against [defendant]. And -- who does represent the People of the State of California through the Imperial County District Attorney's Office[?]"
The record shows the court next made an inquiry into the circumstances around the alleged threat made by defendant. The prosecutor responded: "He [i.e., defendant] made the statement -- he saw me laughing after -- or I guess I was chuckling to myself. I don't remember laughing -- but after [defense counsel] came up and told me that he was going to Marsden her again. [¶] And he yelled across the courtroom from me, 'You think that's funny? Wait till you see what happened next,' something to that effect."
During the chambers conference, the prosecutor stated that, at the recusal hearing two days after defendant made the alleged threat, the prosecutor then informed the court, albeit a different judge, about the statement defendant had made and suggested it was done in a "threatening-type manner." According to the prosecutor, defendant then allegedly told the court, " 'Yes, I did. I sure did.' " The prosecutor argued this exchange allegedly was reflected in the court record.
During the chambers conference, the record shows the defense continued to argue that defendant was "completely prejudice[d]" by this line of questioning; and that because of such questioning, defense counsel also had become a witness, given she was present both when defendant made the initial statement and when, two days later, he allegedly confirmed making such a statement. The defense also argued that nothing from the Marsden hearings could come in as evidence because such hearings were confidential.
The record shows the court decided to end the proceeding for the day; to inform the jurors they should return at 1:30 p.m. the following day; and for counsel to return at 9:30 a.m. the next day to "continue the discussions."
The following day, the court asked the prosecutor if he wished to make a comment after the court noted they were there to discuss "what if any problem there might be with respect to the [threat evidence] and what if any impact it may have on this trial." The prosecutor responded as follows: "Yes, your Honor. I understand the comments that we made in chambers yesterday after I made the question. [¶] I do believe that it was a proper question, considering the fact that it is cross-examination. The defendant has put his character and credibility at issue in his testimony. The defendant has been through this process before and understands that on cross-examination, sometimes questions that are not favorable to the defendant will be asked. And you know, this was impeachment at the same time. That's part of what cross-examination is about." (Italics added.)
The prosecutor continued that it was not improper to question defendant regarding the threat, inasmuch as it was made on the record; that he did not believe a limiting instruction was necessary, even if the court deemed the questioning improper; and that the court, in any event, already instructed the jury that attorney questions and comments are not evidence.
Defense counsel found the prosecutor's comments "very troubling." Citing Rule 5-210 of the Rules of Professional Conduct (rule 5-210), defense counsel argued that the prosecutor, by asking defendant about the threat, made himself a trial witness; that it was a fundamental tenet of the justice system that juries were "to ground their decisions on the facts of a case and not on the integrity of the credibility of the advocates"; and that in her view, the jurors would be "unduly influenced by the prestige and prominence of the prosecutor's office and [would] base their credibility determinations on improper factors." Defense counsel further argued that, while defendant was asserting a theory of self-defense, this theory was "not tantamount" to defendant's character being "put in evidence."
The court addressed the issue as follows: "I tend to agree with the defense on this. First of all, I don't think that is something that Mr. Yancy opened the door to. [¶] . . . I don't recall anything said where he put his character, you know, on the line. [¶] If anything, one might argue that it is the People who put his character on the line under [Evidence Code section] 1101[, subdivision] (b) by bringing into the evidence of the prior bad conduct that's been alleged by those two witness[es], including Ms. Gonzalez."
The court continued that it doubted the threat evidence was admissible under Evidence Code section 1101, subdivision (b)—even assuming the threat occurred—and that even if it was, such evidence was not "very probative at all" on the issues in this case, including the issue of self-defense. As such, the court also expressed doubt that evidence of the threat was admissible under Evidence Code section 352.
After a recess, defense counsel moved for a mistrial, arguing a limiting instruction would not be sufficient to cure what the defense considered was a "primal and basic . . . accusation by the very prosecutor in the case" concerning defendant's alleged threat against him.
In response, the prosecutor again argued the questions he asked defendant about threatening him were not improper because defendant "put himself as a witness on the witness stand" and put his "character in question as far as he did not get into arguments with people, he never pulled knives on people. [¶] He also tried to characterize a relationship with Ms. Gonzalez, who testified . . . in the People's case, that after a few days of renting to him, that it was a very bad relationship based upon a misunderstanding that Mr. Yancy got very aggressive and angry about. He tried to mischaracterize that as well. I was merely trying to cross-examine and impeach him." Despite believing he had done nothing improper, the prosecutor suggested the matter could be resolved by admonishing the jury and giving a limiting instruction.
The court denied the motion for mistrial. In so doing, the court found the alleged threat was not admissible, but that because the defendant merely denied making the threat, his answers were not prejudicial. The court found there was "not enough information in the question nor in the answer that . . . cause[d] irrevocable damage."
When the trial resumed, defendant again took the witness stand. Before questioning resumed, the court made the following statement to the jury: "First of all, the Court would like to take note that just before the evening recess yesterday that, towards the end of the evening before we adjourned, that [the prosecutor] had been cross-examining Mr. Yancy. And the Court took a recess to deal with a matter and adjourned to chambers to consult with counsel. And after a while, I came back out and excused the jurors for the rest of the day and here we are back again." The record shows the defense, on the court's invitation, objected to the last two questions from the day before and moved to strike both the two questions and the two answers thereto. After sustaining the objections, the court gave the jury the following "special instruction":
"The People's questions to Mr. Yancy whether defendant had, during a previous court hearing, threatened [the prosecutor] and any responses to those questions, these will be stricken from the record. [¶] The jury is hereby admonished to completely disregard both the questions and answers. And they are not to be considered by you for any purpose whatsoever. You are to disregard them, both questions and answers, and not consider them nor discuss them in any way during your deliberations."
The record shows before sentencing, the defense filed a motion for new trial based on this issue. The defense argued the threat allegedly made by defendant to the prosecutor was conduct "similar [in] nature to what [defendant] was being charged with in the underlying case," which involved "assaultive conduct" with a deadly weapon.
The court denied the motion. In so doing, the court found the conduct of the prosecutor in questioning defendant about making the threat was not prejudicial. Specifically, the court found defendant had not shown that but for this questioning, the defendant's verdict would have been different. Because the court found the prosecutor's questioning did not "materially affect[] the outcome of the case," the court denied the motion.
B. Guiding Principles and Analysis
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises . . . conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' (People v. Samayoa (1997) 15 Cal.4th 795, 841.) '[W]hen the claim 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.' (Ibid.)" (People v. Smithey (1999) 20 Cal.4th 936, 959-961.)
"It is, of course, misconduct for a prosecutor to 'intentionally elicit inadmissible testimony.' " (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Such misconduct is exacerbated if the prosecutor continues to attempt to elicit such evidence after defense counsel has objected. (People v. Bell (1989) 49 Cal.3d 502, 532.)
Here, we conclude on this record that the prosecutor's questioning of defendant about threatening the prosecutor was misconduct, which deprived defendant of a fair trial. (See People v. Centeno (2014) 60 Cal.4th 659, 666-667 [noting " '[t]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind' " and further noting " '[a] more apt description of the transgression is prosecutorial error' "].)
First, the record shows the prosecutor's improper questioning was not unintentional. Indeed, as summarized at length ante, the record shows that before the prosecutor asked whether defendant had threatened him, there was a lengthy chambers conference concerning information the prosecutor could and could not use to impeach defendant, after defendant testified on direct that his charge of threatening Gonzalez with a knife was allegedly dismissed for lack of evidence. Clearly, the prosecutor then had ample opportunity to apprise the court of his intention to impeach defendant with respect to the threat defendant allegedly made against him.
The record further shows that when cross-examination of defendant resumed, the prosecutor sought to impeach defendant's testimony that the reason why the relationship between Gonzalez and defendant had soured was because defendant had been angry after Gonzalez accidently turned off the power to his trailer, as Gonzalez testified, as opposed to defendant's refusal to become romantically involved with Gonzalez, as he testified. It was in this context that the prosecutor asked defendant if he was an "angry person." When defendant responded he could get angry, like "anybody can," it was then the prosecutor twice asked defendant if defendant had threatened him. In our view, the questions regarding the alleged threat were designed not only to impugn defendant's credibility and character before the jury, but also to show defendant was an "angry person" and ostensibly, to then make defendant angry to show the jury defendant in fact possessed such a character trait.
Second, even after the court stated in conference that the prosecutor had "thrown a monkey wrench" into the trial and created a "problem" the court was unsure how to solve, the prosecutor continued to argue his questioning of defendant regarding the alleged threat was proper. And, when the court took up the issue the following day and asked the prosecutor if he wanted to "comment" on the issue, after having a night to think about it, the prosecutor again argued his questioning of defendant on this subject matter was proper because the defendant allegedly had "put his character and credibility at issue" by his taking the stand. (See Evid. Code, § 1101, subd. (a).)
Evidence Code section 1101, subdivision (a) provides in part: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, 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." (Italics added.)
What's more, the record shows it was not until the following afternoon when the court finally admonished the jury to disregard the threat questions posed by the prosecutor and defendant's answers thereto, after the court denied defendant's mistrial motion. Thus, the jury had almost a day to ponder this line of questioning before being told to disregard it (i.e., "unring the bell"). (See People v. Hill, supra, 17 Cal.4th at pp. 845-846.)
Third, not only was the information sought to be elicited by the threat questions inadmissible, but in our view what makes this line of questioning even more inappropriate is that it came from a prosecutor. " 'Prosecutors . . . are held to an elevated standard of conduct. "It is the duty of every member of the bar to 'maintain the respect due to the courts' and to 'abstain from all offensive personality.' [Citation.] A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.] As the United States Supreme Court has explained, the prosecutor represents 'a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.' " ' " (People v. Peoples (2016) 62 Cal.4th 718, 792.)
Fourth, by asking defendant whether he had in fact made a threat, the prosecutor became a potential witness in the very case he was prosecuting. This made the prosecutor potentially subject to cross-examination concerning such subject matters as the circumstances of the alleged threat, including whether defendant's statement of "You think that's funny, Wait till you see what happened next," was in fact a threat and if so, to do what, if anything; whether defendant confirmed to a judge two days later that he allegedly had in fact threatened the prosecutor, as the prosecutor reported; what, if anything, the judge did as a result; whether the prosecutor in fact felt threatened; and so forth.
We say potential and potentially because the defense ultimately did not request that the prosecutor be sworn as a witness and examined on the witness stand.
By engaging in such impropriety, the prosecutor also potentially violated rule 5-210, which, with a few exceptions, prohibits a lawyer from acting as both an advocate and a witness in a jury case. The case of People v. Donaldson (2001) 93 Cal.App.4th 916 informs our decision on this issue.
Rule 5-210 provides: "A member shall not act as an advocate before a jury which will hear testimony from the member unless: [¶] (A) The testimony relates to an uncontested matter; or [¶] (B) The testimony relates to the nature and value of legal services rendered in the case; or [¶] (C) The member has the informed, written consent of the client. If the member represents the People or a governmental entity, the consent shall be obtained from the head of the office or a designee of the head of the office by which the member is employed and shall be consistent with principles of recusal."
There, the credibility of the key prosecution witness was the critical issue, as this was the only witness who provided law enforcement with inculpatory information. "Defendant's trial attorney did not object when the prosecutor took the stand to impeach the exculpatory testimony of that witness. Defendant's trial attorney then took the prosecutor on cross-examination and elicited evidence of her personal belief in the credibility of that witness at the time when she gave inculpatory information to law enforcement. In argument, without objection by defendant's trial attorney, the prosecutor expressed her personal belief, as both advocate and witness, in defendant's guilt." (People v. Donaldson, supra, 93 Cal.App.4th at p. 919.)
The court in People v. Donaldson found the defendant received ineffective assistance of counsel as a result of his counsel's failure to object to the prosecutor acting as both advocate and witness and thus, reversed his conviction. (People v. Donaldson, supra, 93 Cal.App.4th at p. 919.) The court based its decision on due process grounds: "The foundations of the prohibition against a lawyer's acting as both advocate and witness lie in due process [citation]: 'The prohibition against a lawyer serving as advocate and testifying as a witness in the same matter is essentially aimed at eliminating confusion over the lawyer's role. This confusion could prejudice one or more of the parties or call into question the impartiality of the judicial process itself. As an advocate, the lawyer's task is to present the client's case and to test the evidence and arguments put forth by the opposing side. A witness, however, provides sworn testimony concerning facts about which he or she has personal knowledge or expertise. The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer's testimony, the lawyer's advocacy, and the fairness of the proceedings themselves.'
"The prohibition against a lawyer's acting as both advocate and witness 'is a necessary corollary to the more fundamental tenet of our adversarial system that juries are to ground their decisions on the facts of a case and not on the integrity or credibility of the advocates.' (United States v. Prantil (9th Cir. 1985) 764 F.2d 548, 553.) The enforcement of that prohibition 'is more than just an ethical obligation of individual counsel' but rather 'a matter of institutional concern implicating the basic foundations of our system of justice.' (Ibid.)
"Within the criminal justice system, the prohibition against a prosecutor's acting as both advocate and witness addresses 'the concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors.' (U.S. v. Edwards (9th Cir. 1998) 154 F.3d 915, 921.) 'That counsel should avoid appearing both as advocate and witness except under special circumstances is beyond question.' (United States v. Morris (7th Cir. 1983) 714 F.2d 669, 671.) The maxim ' "justice must satisfy the appearance of justice" ' reflects the 'especially acute' need for public confidence in the administration of justice where the testifying attorney represents the 'prosecuting arm' of government. (United States v. Johnston (7th Cir. 1982) 690 F.2d 638, 643.) Judicial condemnation of the 'practice of serving as both prosecutor and witness' has deep roots not only in English and American law but also in Roman law. (United States v. Birdman (3d Cir. 1979) 602 F.2d 547, 551.) 'Combining the roles of advocate and witness can prejudice the opposing party' and confers on the opposing party 'proper objection where the combination of roles may prejudice that party's rights in the litigation.' [Citation.] 'A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.' [Citation.]" (People v. Donaldson, supra, 93 Cal.App.4th at pp. 928-929.)
We recognize the misconduct of the prosecutor in the instant case did not rise to the level of misconduct of the prosecutor in People v. Donaldson, who took the witness stand and testified regarding a key witness's prior inconsistent statements. Nonetheless, some of the same concerns expressed by the court in People v. Donaldson apply here, including our concern that " 'juries are to ground their decisions on the facts of a case and not on the integrity or credibility of the advocates.' " (See People v. Donaldson, supra, 93 Cal.App.4th at p. 928, quoting United States v. Prantil, supra, 764 F.2d at p. 553.) By twice asking defendant on cross whether defendant had threatened him, the prosecutor in our view injected his own credibility into the case and opened up the possibility that he could be called as a witness.
Fifth, that defendant denied threatening the prosecutor did not cure the impropriety of the questioning. Our high court's decision of People v. Wagner (1975) 13 Cal.3d 612 informs our decision on this point. There, the defendant was being prosecuted for selling marijuana. The prosecutor asked questions of the defendant such as " 'Isn't it true that you in fact sold heroin?' " and " '[B]ut you are also in the business . . . of furnishing cocaine a drug, for sale, illegally, isn't that correct?' " and " '[I]sn't it true that . . . you had in your possession approximately three kilograms of pure pharmacy cocaine?' " (Id. at p. 616.)
Our high court in People v. Wagner concluded that, like the prosecutor in the instant case, the prosecutor there committed misconduct by impeaching the defendant with specific acts of misconduct for which the prosecutor offered no independent evidence. (People v. Wagner, supra, 13 Cal.3d at pp. 616-617.) Although the defendant in People v. Wagner answered "no" to such questions and the trial court later admonished the jury not to consider the attorneys' statements as evidence, as was also the case here, the court nonetheless reversed the defendant's conviction. In so doing, the court observed a prosecutor may not "interrogate witnesses solely 'for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.' " (Id. at p. 619.) The court concluded that in light of such questions and despite the defendant's negative responses thereto, it was "reasonable to assume . . . the jurors were led to believe that, in fact, defendant had engaged in extensive prior drug transactions." (Id. at p. 620.)
Moreover, because the record showed the "question of defendant's guilt depended to a very large degree on the jury's determination of the relative credibility of the witnesses" (People v. Wagner, supra, 13 Cal.3d at p. 621), the court there found the "highly prejudicial implications arising from the questions asked of defendant on cross-examination could serve only to reduce and impair his credibility and to present him to the jury as a person of criminal tendencies" (ibid.).
Here, the main issue in the case was not whether defendant cut Flores with a knife, but rather whether defendant did so in self-defense. (See CALCRIM No. 3470.) This claim required the jury to consider and decide such issues including whether defendant reasonably believed he was in "imminent danger of suffering bodily injury" (ibid.); whether he reasonably believed the "immediate use of force was necessary to defend against that danger" (ibid.); and whether he used "no more force than was reasonably necessary to defend against that danger" (ibid.).
The jury was instructed as follows with a slightly modified version of CALCRIM No. 3470: "Self-defense is a defense to Assault with a deadly weapon. The defendant is not guilty of that if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [¶] The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. [¶] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of Assault with a Deadly Weapon."
In addition, the jury also was required to decide whether defendant started the fight or engaged in "mutual combat" in connection with defendant's self-defense claim (see CALCRIM No. 3471); and whether defendant in "good faith" tried to stop fighting with, and indicated his intent to do so to, Flores, among other issues.
The court also gave CALCRIM No. 3471, as modified: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND ONLY FOR MUTUAL COMBAT [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
As summarized ante, the record shows Flores, the victim, testified he summoned defendant to fight when Flores said, " 'Let's handle this,' " after Flores claimed he got tired of defendant "punking" him. Flores also testified that defendant made a mistake by "punking" him for money because Flores had been picked on as a kid and learned to "deal" with such people now that he was older.
What's more, although Gonzalez, A.C. and Pricola testified they believed defendant was winning and/or controlling the fight, Flores himself testified that, during the fight, he was on top of defendant at one point and at other times was on his knees, swinging at defendant. In addition, Gonzalez testified that the two men went around the corner, outside of her view, during the fight. And multiple witnesses testified that on the night of the fight, it was very dark outside and there was minimal lighting in the trailer park. This evidence further supports the inference that it was difficult to see who was doing what to whom during the fight. Indeed, Flores testified he did not even know defendant had a knife until Flores started bleeding.
Defendant also testified that Flores was on top of him and would not let him go, despite defendant's pleas to do so. Gonzalez also testified she repeatedly heard someone say during the fight, " 'Let me go.' " Although Gonzalez attributed these words to Flores, Flores himself testified it was defendant who said, " 'Let go,' 'Let go of me.' " While law enforcement ultimately searched defendant's trailer and found a knife with blood on it, this does not answer the overarching issue of whether defendant used the weapon in self-defense, as he claimed.
The issue of self-defense largely turned on the jury's determination of the credibility of the witnesses, including defendant. Because the questions about the threat were designed to impugn defendant's credibility, attack his character, and potentially incite defendant to establish before the jury that he was an "angry person" with a violent disposition, and because this questioning went to the key issues in the case and injected the prosecutor's own credibility into it, we conclude defendant was prejudiced by such questions and, thus, was denied a fair trial. (See People v. Wagner, supra, 13 Cal.3d at p. 621.)
In light of our decision, as noted we decline to address defendant's remaining contentions. --------
DISPOSITION
The judgment of conviction is reversed.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.