Opinion
A145847
08-23-2017
THE PEOPLE, Plaintiff and Respondent, v. RACHEL JEAN KING, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR223168)
Appellant Rachel Jean King was convicted, following a jury trial, of evading a peace officer and receiving stolen property. On appeal, she contends (1) the trial court erred when it permitted the prosecution to impeach her with evidence that she had threatened and assaulted other people; (2) the prosecutor committed misconduct by misstating the evidence during closing argument; (3) the court erred when it refused to admit relevant evidence critical to the defense; and (4) the court erred when it refused to instruct the jury on the defense of necessity. Appellant further argues that even if none of the errors, standing alone, were prejudicial, the cumulative effect of the errors requires reversal. As we shall explain, because we find that appellant was prejudiced by numerous errors that occurred during her trial, we shall reverse the judgment.
PROCEDURAL BACKGROUND
Appellant was charged by information with evading a peace officer (Veh. Code, § 2800.2, subd. (a)—count 1), and receiving stolen property, i.e., a motor vehicle (Pen. Code, § 496d, subd. (a)—count 2).
On May 20, 2015, a jury found appellant guilty as charged.
On June 17, 2015, the trial court suspended imposition of sentence and placed appellant on three years of formal probation.
On July 21, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Vincent Cruz testified that on February 24, 2015, he reported his 2000 Honda Civic automobile missing to the Richmond Police Department. He had last seen the car the night before, parked at 33rd and Nevin Streets in Richmond. On February 27, Cruz happened to see his car being pursued by police officers. He retrieved the car from police that same day. Cruz identified keys he had found on the floor of the car once it was returned to him, which he then turned in to police.
Vallejo Police Officer Mark Galios testified that on February 27, 2015, about 10:00 a.m., he was driving in a marked patrol vehicle when he saw a white Honda Civic, ran the license plate number through his computer, and learned the vehicle was stolen. He saw that the car's driver was a white female in her 20s, with bright pink hair. At trial, he identified appellant as the driver. Galios was able to get behind the car, intending to initiate a traffic stop, when it made "an immediate, abrupt" turn and accelerated. Galios contacted dispatch, activated his vehicle's overhead emergency lights and siren, and began to pursue the car, which appellant was driving through a residential neighborhood, running several stop signs as she drove about 40 miles per hour. As appellant approached Interstate 80 with Galios still in pursuit, she increased the car's speed and merged onto the freeway, going westbound toward and across the Carquinez Bridge at speeds of 75 to 100 miles per hour.
Galios and three other patrol cars pursued the car into Richmond, as appellant steered the car back and forth across the four-lane freeway, at speeds averaging 90 to 100 miles an hour. Appellant abruptly exited the freeway onto Carlson Boulevard in Richmond, where the police cars followed as she again merged onto Interstate 80 before exiting the freeway at Potrero Street. Appellant drove along surface streets in Richmond at speeds of about 65 miles per hour, running 7 to 10 stop signs. On MacDonald Avenue, another officer positioned his patrol vehicle to initiate a so-called " 'pursuit intervention' " technique, the purpose of which was to discontinue the chase. The maneuver caused the car to spin out in the roadway and stop. The pursuit had covered 22 miles in just over 20 minutes.
There were two people in the car, including appellant and William Hall, who was in the front passenger seat. After both appellant and Hall were taken into custody, Galios noticed that the motor of the Honda was still running, but there was no key in the ignition. He saw that the ignition was damaged and also noticed a "shaved" key on a key ring that was on the driver's side floorboard. Galios later returned the car to its owner.
Hall, who was on felony probation in Contra Costa County, was taken into custody for a violation due to being a passenger in a stolen car engaged in a high-speed pursuit.
Galios described a shaved key as a tool commonly used by car thieves "to basically bypass the lock tumbler inside the ignition."
Vallejo Police Officer Jason Bahou testified that he assisted in the pursuit of the stolen Honda Civic. He saw appellant—the car's driver—engage in "pretty reckless" driving: speeding, running stop signs, and weaving in and out of traffic. Bahou obtained approval to conduct a "pursuit intervention technique," which involved using his patrol car to disable the vehicle appellant was driving. Hall, who was in the front passenger seat of the car, was arrested after the car was stopped, and Bahou transported him to the Vallejo Police Department.
Defense Case
Appellant testified that Hall was her boyfriend and pimp. They had been in an on and off again relationship for five years. Hall had been violent with her at least a hundred times over the five years she had known him. She testified, "I have been beaten up, punched, choked, hit with a metal bar in my head, hit with a belt buckle, different things," which also included a gun that "split [her] head open." These assaults occurred when she did not bring him money or drugs. She never called the police on Hall because "I know he, um, bails out really quick when he does get arrested, so it scared me that even if I were to call them that day or the very next day he'd be home and he would have beat me up or done something worse." Appellant had seen Hall with a handgun more than 15 times, and had also seen him with an AK-47. Appellant identified photographs from Hall's Facebook page, one of which showed him holding a semiautomatic handgun and another showing him with an AK-47; both guns looked similar to guns she had seen him with.
Appellant explained, "I go out and work, exchange sex for money, and I pay him."
Hall had also talked to appellant about his past relationships, including with a former partner, Aniya P., with whom he had a child. Hall told appellant he had punched and beaten up Aniya P. a couple of times, and had also pulled a knife and gun on her. He said he had threatened someone else with a firearm over Aniya P. She also heard from a friend about a time when Hall pulled a gun on Aniya P.'s brother, and she had heard about him pulling guns on friends and neighbors.
Appellant testified that on February 27, 2015, she was in Richmond with Hall, who drove them to Vallejo, where appellant's children lived. They were going to take her daughter to a doctor's appointment. Hall stopped at a gas station just after shooting up a "speedball," a mixture of crystal methamphetamine and heroin. He had become "really tired" and therefore asked appellant to drive. When she got behind the wheel, she did not pay attention to the car's ignition and did not notice if it had been damaged. Shortly after leaving the gas station, appellant saw Officer Galios drive by. Hall got mad and told appellant to put her seat belt on, which she did. They both then heard the officer coming up fast behind them, and Hall said, " 'Oh shit. Just go. Just go. Just go.' " At that point, he told her the car was stolen and said, " 'Just get me back to Richmond. Get me to the hood.' " He also said he did not want to go back to jail; he had just gotten out of jail five days earlier. Appellant had not known the car was stolen initially, when she drove it away from the gas station in Vallejo.
When asked why she did not pull over for the officer, appellant testified that the police "can protect you for the few moments, not later." This belief was based on the fact that Hall hardly ever got arrested, "and when he does . . . get arrested, he get[s] right out and nothing happens usually." Appellant was afraid that Hall "would hurt me really badly or worse" if she did not drive him back to Richmond. Asked why she had stayed with appellant if she was afraid of him, appellant explained, "It's just less complicated. It's easier. It's safer to stay with him than to be away from him" because "he knows where I'm at all times [sic]. We run in the same circles and people tell him. People are afraid of him, so they tell [him] things about me [sic] and where I'm at." Appellant also knew Hall had hurt women with whom he was in a relationship and who worked for him, if they did not pay him. She was afraid of him because "if I don't have enough money; if I don't have drugs; if I'm not doing something he wants me to do, he hits me." At the time he told her to drive, his tone of voice was angry, and she testified that when he was angry and she did not do what she was told, "I usually get hurt."
On cross-examination, appellant acknowledged that she knew Hall would not kill her, but was aware someone could die due to the way she was driving during the police chase.
After the car chase, once the vehicle was stopped, appellant told the police as soon as she could about her fear of Hall and that she felt she had no choice in the matter. When an officer asked why she did not stop the car when the police were behind her if she was afraid of Hall, she responded, "I was more afraid of him than them." On cross-examination, appellant said she believed she told the officers she feared for her safety. On redirect examination, she explained that when a police officer asked her why she did not submit to the police, who would protect her, she said something like, " 'You don't get to go home at night with him,' " by which she meant the police did not 'have to deal with the aftermath of stopping."
Also on cross-examination, appellant testified that Hall had threatened to kill her "a handful" of times, but did not threaten her while in the stolen car. Just before the police chase, however, when he told her to take him back to Richmond, appellant initially said, " 'Nah, I'm just going to pull over,' " and Hall said, " 'Bitch, get me back to the hood.' "
Appellant acknowledged that she had been convicted of a felony crime of moral turpitude on November 5, 2014, and that she was on probation in "a few different cases" at the time of the present incident. She was not thinking about her probation status when she was driving the car. She also acknowledged that she fled on foot from the police in the November 2014 case, and that she was on her own when she did so. After appellant testified that it was easier to be with appellant than to leave, she acknowledged that she had previously threatened to harm people and had engaged in physical confrontations with people, including men.
DISCUSSION
I. Impeachment of Appellant
Appellant contends the trial court erred when it permitted the prosecution to impeach her with evidence that she had threatened and assaulted other people.
A. Trial Court Background
Defense counsel moved for a pretrial order precluding the prosecutor from presenting any evidence of appellant's prior bad acts and/or convictions. If the court did allow use of any prior bad acts, counsel requested a hearing under Evidence Code section 402 beforehand and also requested that the prior conviction be sanitized to reflect only a conviction for " 'a crime involving moral turpitude.' "
All further statutory references are to the Evidence Code unless otherwise indicated.
At a hearing on that motion, the prosecutor noted that appellant had been charged with robbery in Contra Costa County in 2014, but was ultimately convicted of grand theft under Penal Code section 487, subdivision (c). Defense counsel did not object to admission of evidence that appellant was still on probation for the prior offense at the time of the present offense, but argued that the underlying facts of the prior conviction were irrelevant to the present case and would be unduly prejudicial. The prosecutor stated he did not intend to raise the prior conviction in his case in chief, but did want to use it for impeachment purposes if appellant testified.
The court ruled that the prior conviction could only come in as impeachment and, at least initially, it would be sanitized such that the prosecutor could ask only whether appellant had been convicted of a crime of moral turpitude and was on probation at the time of the current offense. The court stated that it would revisit the admissibility of the facts underlying the prior conviction if necessary, depending on appellant's testimony. The court reserved ruling on defense counsel's request for a section 402 hearing regarding the relevance of the facts underlying the prior conviction.
On cross-examination, appellant acknowledged that she had suffered a felony conviction in November 2014, for a crime of moral turpitude and that she was on probation in more than one case at the time of the present incident. The prosecutor then asked, "This isn't the first time you ran from the police; correct?" Appellant responded, "No." The prosecutor then asked if she had run from police in the November 2014 case, and appellant responded, "Yeah." Defense counsel objected and during a sidebar conference, moved for a mistrial on the ground that the prosecutor had asked appellant about her flight after the court had ruled that he was not to go into any facts underlying the prior conviction.
The prosecutor responded that in the prior case, appellant "robbed a store and ran off. A couple of days later officers saw her, and she fled." According to the prosecutor, this fact was relevant to impeach appellant's claim that she only fled in the present case because Hall directed her to do so. Defense counsel countered that the prosecutor was merely trying to introduce character evidence. The court stated that it would allow the question about flight, to which appellant had already responded in the affirmative. The court also said it would allow questions about whether she had fled on foot and whether anyone had told her to flee, but "[a]nything more than that it seems to me is unnecessary and 352 [sic]. I do think this is a different issue than the idea of sanitizing the prior. I do think her state of mind that you're asserting is a defense, Mr. Swartz [defense counsel], as to why she would flee is relevant."
The prosecutor then told the court that he also "would like to get into the fact that she's not easily messed with. That she stands her ground. She fights back. That she herself has participated in robberies involving guns all go to her actual state of mind whether or not she is fearful of Mr. Hall." The court responded, "Why don't you ask her questions about her state of mind at the time, and maybe you address those issues. But I don't think going back prior alleged robberies [sic], that character evidence I think is accurate, I think. As to if we go down to her state of mind, I guess go, and we'll see where we end up. Again, so far the record is pretty thin as to this issue. But anyway, why don't we just do this, why don't we keep going[;] you can finish up on this last issue about the fleeing, and keep going, and we'll see where we end up."
Defense counsel stated, "I just want to make sure we don't end with counsel back dooring her questions about the underlying initial allegation from [Penal Code section] 211 from the store, which is where it sounds like it happened." The court said it agreed that it had already ruled on that point, but that it had said it would "revisit those in limine motions if the doors were opened. No doors [have] been opened yet, so let's keep going."
The prosecutor then interjected, "Just so the court knows just in case the court is not familiar with the underlying facts of the report I turned over to counsel. The underlying facts of the [grand theft conviction under Penal Code section] 487(c) is she goes to the grocery mart outlet in Richmond[,] she walks in, grabs a backpack and put a bunch of different items in the backpack. She is then confronted by, I think, the owner of the store. When she's confronted, she, basically threatens her saying something to the effect, 'I'm going to kill you.' [¶] . . . . Then additional store employees try to detain her, and she gets into a physical fight with three of them, including men. She threatens to kill them and come back and shoot them up. . . ." The court responded, "I think what you just said is basically either [a section] 1101(a) or character and neither of those, I think we allowed—we discussed the priors for purpose of moral turpitude, impeachment, and we allowed the probationary status as to a motive to flee, it seems to me those are the universe of things." The court concluded that it was not going to change any of its in limine rulings at that point, other than regarding the fleeing, which it saw as different from other facts underlying the prior conviction.
On further cross-examination, appellant acknowledged that she fled from the police on foot on a prior occasion and that no one had told her "to be somewhere like in the hood"; she had fled on her own. Appellant then agreed that while in the car with Hall in the present matter, he had no weapons, did not threaten to kill her, and she did not think he was going to kill her "at that moment." She also testified that she stayed with Hall because it was easier to be with him than to leave.
The following exchange then took place between the prosecutor and appellant:
"Q. In fact, you're kind of a tough person yourself; correct?
"A. When I need to be, depending on the situation, yes.
"Q. Well, you're not a person who generally people mess with; correct?
"A. No, but that's not based on me, that's based on him.
"Q. Had there been instances where you protected yourself physically when necessary without he [sic] being there?
"A. Yes.
"Q. Okay. And this protecting yourself has sometimes been physical; correct?
"A. Yes.
"Q. And sometimes you, in fact, have threatened to harm people; correct?
"A. Yes, I have.
"Q. You threatened to kill people; correct?
"A. I don't recall saying it that way but
"Q. How do you recall staying [sic] it?
"A. I think I recall that 'somebody was going to come back,' I didn't necessarily say somebody was going to get killed.
"Q. And do you remember saying that you were going to come back and kill somebody?
"A. I don't remember saying 'kill somebody.' I remember saying—"
After trial counsel objected on relevance grounds, the court said to "[h]old on" and "let her finish the answer and we'll see." Appellant therefore testified, "I didn't necessarily tell them I was going to kill them. I was going to have somebody come back. I didn't say 'I'm going to kill you,' or 'I'm going to come back and kill you,' I was, like, 'I'm going to have somebody come back,' but words 'kill' were not in my vocabulary."
The prosecutor then continued the cross-examination, as follows:
"Q. So your suggestion to this person was that you were going to have somebody come back and take care of this person?
"A. Yes.
"Q. Okay. And these physical confrontation[s] that you had in the past with people have included men; correct?
"A. Yes.
"Q. Did you at one time punch a woman by the name of Ms. Hernandez?
"A. Yes.
"Q. You punched her several times in the neck?
"A. No.
"Q. Did you punch her in the chest?
"A. Yes.
"Q. Did you—"
After defense counsel interjected, "Your Honor," the court called an unreported sidebar conference, after which, the prosecutor continued to cross-examine appellant:
"Q. At the time you confronted these people, did you intend to carry out your threats?
"A. No.
"Q. So you know people didn't always carry out there [sic] threats?
"A. Yeah." Appellant further testified that, in the current matter, stopping the car and going to the police for safety was "just a band-aid. That fixes it for a moment, it's not long-term."
During a recess, the prosecutor told the court that appellant had made admissions about participating in robberies or burglaries with the use of a firearm, and he would like to question her about her purported fear of Hall because he had guns, given her experiences. The court stated: "All right. So here is what I think. I think there may be meaningful—there may be ways to generate this issue, but I think by bringing up her prior alleged criminal activity, I think that is probably unduly prejudicial to her and opened up the sideshow of litigating each of those issue[s]. So I'm going to rule that her—that specific examination of her as to her prior criminal act in order to establish—or undermine her fear of argument [sic] is excluded under [section] 352. I think it's prejudicial to her by bringing up her prior criminal acts. I mean, frankly, I don't—the ideas aren't usually [sic] exclusive. I mean, Bonnie could have been afraid of Clyde regardless of Bonnie's criminal history. So I think it's sort of—I don't think they're mutually exclusive issue[s] here, but I think it's pretty prejudicial to [appellant]."
B. Legal Analysis
"Under California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense. [Citations.]" (People v. Casares (2016) 62 Cal.4th 808, 830 (Casares), citing § 786 [evidence of character traits other than honesty or veracity, or their opposites, is inadmissible to support or attack a witness's credibility] & People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 (Heckathorne) [finding that prosecutor's impeachment of defendant with facts underlying his prior felony conviction was prejudicial error].) Impeachment with the facts underlying a prior offense are thus "inadmissible for impeachment purposes, unless the witness has first attempted to mislead the jury or minimize the facts of the prior offense." [Citations.]" (People v. Ardoin (2011) 196 Cal.App.4th 102, 120 (Ardoin).) "The rationale for the rule confining the nature and extent of impeachment with prior convictions to the name, type, date, and place of conviction is that a witness may not be impeached on the basis of specific instances of conduct tending to show a trait of the witness's character. [Citations.]" (Ibid.)
We review for abuse of discretion the trial court's ruling on the admission of past misconduct involving moral turpitude to impeach a witness. (Ardoin, supra, 196 Cal.App.4th at p. 121.)
In the present case, respondent does not dispute that the challenged cross-examination was based on the prior conviction, which the court had stated could only be described, for impeachment purposes, as a prior felony conviction involving moral turpitude. Nor does respondent claim that appellant's testimony regarding the prior conviction was in any way misleading with respect to the underlying facts. Without even acknowledging the rule that a witness may not be impeached with facts underlying a prior conviction (see Casares, supra, 62 Cal.4th at p. 830; Heckathorne, supra, 202 Cal.App.3d at p. 462), respondent merely asserts that the court reasonably found the challenged impeachment evidence was relevant to whether appellant was truly afraid of Hall when she fled from police after Hall directed her to drive back to the hood, and that the evidence was more probative than prejudicial under section 352.
Although the prosecutor did not state during the cross-examination that the questions about prior threats and violence arose from the prior conviction, from its discussions with the court, the questions plainly were based on the facts surrounding that offense.
We conclude the court abused its discretion in permitting the prosecutor to engage in extensive cross-examination of appellant regarding the underlying facts of her prior felony conviction—specifically as to her alleged threats and violent conduct—given that there is no showing that she attempted to mislead the jury as to the prior conviction or otherwise minimize the facts of that conviction. (See Casares, supra, 62 Cal.4th at p. 830; Ardoin, supra, 196 Cal.App.4th at pp. 120-121; Heckathorne, supra, 202 Cal.App.3d at p. 462.)
The question therefore becomes whether it is reasonably probable that a result more favorable to appellant would have been reached in the absence of this error. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also Heckathorne, supra, 202 Cal.App.3d at pp. 463-464 [applying state standard of error].)
In Heckathorne, the appellate court found that the prosecutor improperly cross-examined the defendant in a murder trial with the facts underlying a prior conviction for assault with a deadly weapon. (Heckathorne, supra, 202 Cal.App.3d at pp. 461-462.) The court concluded the error was prejudicial under Watson, first, because circumstantial evidence supported, but did not compel, a murder conviction. (Heckathorne, at p. 463.) Second, the defendant's "credibility was critical. Much depended on the jury's impression of [the defendant] as an individual who would or would not deliberately shoot a gun into a common apartment wall in conscious disregard of a neighbor's life. The prosecutor's improper questioning elicited inadmissible evidence of a disposition to commit violent crimes without serious provocation or motive and gave him an opportunity to inappropriately describe and characterize the previous incident in the guise of a question . . . . In short, during the brief colloquy the prosecutor was able to portray [the defendant] as a violent hothead." (Ibid.) Third, the prosecutor "repeatedly harped on this theme [during] closing argument, labeling the defendant a 'bad dude,' 'violent,' 'abrasive' and 'macho.' " (Ibid.)
Like Heckathorne, this was a case that hinged on appellant's credibility, in light of her claim that she acted solely out of fear of Hall when she fled in the stolen car. (See pt. IV., post [addressing necessity defense claim].) We need not determine, however, whether the improper admission of this evidence suggesting that appellant was a tough, violent person who would not be easily intimidated was prejudicial on its own because, as we shall discuss in part IV., post, this error combined with other errors to deprive appellant of a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 819 (Hill) [finding cumulative error deprived defendant of a fair trial]; see pts. II., III. & IV., post.)
In light of this conclusion, we need not address appellant's claim that the error implicated her constitutional right to due process.
II. Prosecutor's Statements during Closing Argument
Appellant contends the prosecutor committed misconduct by misstating the evidence during closing argument.
A. Trial Court Background
During closing argument, while the prosecutor was discussing the elements of the crime of receiving stolen property, he stated, "The second element [of the crime] was that when . . . the defendant received or withheld the property, she knew that the property was stolen. So even if she gets in the car, again, if you believe her, if you believe that she didn't know that the car was stolen when she got in it, even though this is her boyfriend of [four] years and has done numerous bad, bad things with him, including you know allowing him to be her pimp." (Italics added.) Defense counsel objected, stating, "Misstates the evidence," but the court overruled the objection.
B. Legal Analysis
" ' " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it " ' "involves the use of deceptive or reprehensible methods to attempt to persuade either the court or jury." ' " [Citation.]' [Citation.]" (Hill, supra, 17 Cal.4th at p. 819.) The defendant need not show that the prosecutor acted in bad faith. (Id. at p. 822.)
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' " (Hill, supra, 17 Cal.4th at pp. 820-821.)
Here, defense counsel objected to the comment, asserting that the prosecutor had misstated the evidence, but the trial court overruled the objection and the prosecutor immediately continued with his argument. In these circumstances, respondent does not claim that appellant forfeited this issue on appeal due to the failure to request an admonition.
"Argument is improper when it is neither based on the evidence nor related to a matter of common knowledge." (People v. Pitts (1990) 223 Cal.App.3d 606, 702, superseded by statute on other grounds.) In the present case, we conclude the prosecutor committed misconduct when he attempted to cast doubt on appellant's claim that she did not initially know the car was stolen, based on the fact that Hall was her longtime boyfriend and she had "done numerous bad, bad things with him . . . ." This statement was not based on any evidence in the record or reasonable inferences drawn therefrom. (See Hill, supra, 17 Cal.4th at pp. 819-820; Pitts, at p. 703.) The evidence showed only that Hall had been appellant's pimp, and the prosecutor's unsupported statement that she had done many other "bad, bad things with him" constituted misconduct "because such statements 'tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' " (Hill, at p. 827.)
The improper comment was particularly harmful in that it exacerbated the court's error in permitting the prosecutor to impeach appellant with facts underlying her prior conviction. (See pt. I., ante.) Together, the impeachment evidence and the prosecutor's comment allowed the prosecutor to portray appellant as a violent, dangerous criminal, who likely had participated in this offense with Hall, given that she had done numerous other "bad, bad things with him." Moreover, even if, standing alone, the prosecutor's comment did not prejudice appellant, we find this error combined with other errors at trial to prejudice appellant. (See pts. I., ante, III., & IV., post.)
III. Exclusion of Defense Evidence
Appellant contends the court erred when it excluded relevant evidence critical to the defense.
A. Trial Court Background
Before trial, defense counsel informed the court that he had subpoenaed witnesses for trial who would testify that Hall was a violent person who had a "habit or custom of threatening people when police get involved in his actions, and there are specific instances when he has threatened to kill people for contacting the police and to get revenge." Counsel explained that appellant knew about some of those acts and knew some of the alleged victims. Counsel argued that this evidence would go to appellant's state of mind when she failed to submit to police. The court reserved ruling on the admissibility of this evidence.
At a subsequent hearing held under section 402, Officer Marshall Pagaling testified that on January 6, 2013, he was dispatched to an address in response to a report that Hall had brandished a weapon against Aniya P. during a domestic violence incident. Aniya P.'s brother, who was also at the scene, told Pagaling that Hall had threatened both him and Aniya P. with a knife and had waved the knife at Aniya P. Aniya P. felt threatened and called the police, at which point, Hall yelled at her that she ought to stay out of Richmond and told her brother, " 'I'll shoot you.' " Pagaling also saw a text message from Hall on Aniya P.'s phone, in which he threatened to break her jaw. Aniya P. and her brother had come to appellant's house to drop off Aniya P.'s child. Both said they were upset because Hall got upset over watching Aniya P.'s child and because he "comes to her work, acting out there, disturbing her at work and texting her all day."
Pagaling subsequently spoke with Hall, who admitted having a knife in his hand during the altercation and threatening Aniya P. He further admitted that he had hit Aniya P. in the past, saying, " 'I know I've gone too far in the past, but this [the current incident] is not a big deal.' " Hall said that on that day, there were "mutual threats" between him and Aniya P. Both Aniya P. and her brother were taller and heavier than Hall.
After Pagaling's testimony, defense counsel told the court that Aniya P. had been subpoenaed for trial and that Officer Pagaling's testimony could be used to impeach her, and his police report could be used to refresh her recollection if needed.
During a break in appellant's testimony, the attorneys and the court discussed the admissibility of evidence showing Hall's violent behavior and threats. The court stated, "It's [appellant's] state of mind that's relevant, not the objective truth of it. She's testified as to her state of mind." Defense counsel argued that, "[i]f Hall has a habit or custom of threatening people when the police are going to be involved in his bidding or threatening people when he doesn't get his way, I think the jury should be able to hear that and that's [section] 1105." The court noted that it had allowed appellant to testify about Hall's violence and threats because it was relevant to her state of mind. Counsel responded that under People v. Minifie (1996) 13 Cal.4th 1055, 1344 (Minifie), the evidence was relevant to explain appellant's "state of mind, rather than to prove her actual intentions." Thus, under Minifie, the evidence would be admissible "to support the credibility of [appellant's] assertion that she believes him to be violent, that he is in fact a violent person." The court disagreed, tentatively ruling "that these other witnesses regarding [Hall] are not relevant to the analysis. And even if they were, it's cumulative since no one has impeached [appellant] about any of these things. There's no evidence in controversy about . . . whether or not [Hall] is a bad guy or not. And so at this point, it would be . . . just be cumulative anyway under [section] 352."
After appellant finished testifying, the court confirmed its ruling excluding the proposed defense testimony about Hall: "I'm going one, I think they're irrelevant to her state of mind. She has testified [and] none of those facts had been really contradicted in any particular way. [¶] Secondly, I think it would be cumulative. And or [section] 352 because again, it's really not in dispute this additional evidence. If it is relevant for some reason, I don't think it's pivotal because, again, the information would be cumulative and not otherwise really contested. And so I'm going to—I agree. I'm going to exclude those witnesses." When counsel stated that he was offering the witnesses "to support her testimony not attack," the court responded that counsel's statement had proved both of the court's points.
B. Legal Analysis
Except as otherwise provided by statute, all relevant evidence is admissible. (§ 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Under section 352, a trial court may exclude relevant evidence "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."
We review the trial court's decision to exclude appellant's proposed evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292; Minifie, supra, 13 Cal.4th at p. 1070.)
Appellant cites Minifie in support of her claim that the trial court abused its discretion when it excluded the challenged evidence. In Minifie, the defendant attempted to support his claim of self-defense by presenting evidence of prior threats by members of the victim's crowd, but the court excluded the proposed evidence. (Minifie, supra, 13 Cal.4th at pp. 1069-1070.) Our Supreme Court found the evidence was relevant in that the defendant " 'was "entitled to corroborate his testimony that he was in fear of his life" [citation] with evidence of threats from the [victim's] crowd, and with evidence of their reputation for violence. The character evidence, no less than the evidence of threats, tended to show that [defendant's] apprehension of great bodily harm was reasonable.' " (Id. at p. 1067.)
The Minifie court also found the trial court had abused its discretion when it excluded the evidence under section 352, explaining: " '[Defendant] was entitled to present evidence of his circumstances so that the jury could see them from his point of view. He was entitled to argue that the perceptions of a reasonable person in his position would have been colored by the Knight crowd's threats and their reputation for violence. [¶] None of the considerations supporting the discretionary exclusion of relevant evidence substantially outweighed the probative value of the evidence at issue here. Presentation of evidence at the heart of the defense would not have represented an "undue" consumption of time. There was no risk of prejudice associated with the evidence. "The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against . . . [one party] . . . and which has very little effect on the issues." [Citation.] Evidence bearing on [defendant's] state of mind was highly probative, and had no "unique tendency" to evoke any emotional bias against the prosecution. Evidence that [defendant] might have had reason to fear for his life would not have "confused the issue." It would have further illuminated the situation the jury was required to evaluate.' " (Minifie, supra, 13 Cal.4th at pp. 1070-1071.)
Although the defendant's situation in Minifie differs from the present circumstances, our Supreme Court's analysis sheds light on questions at issue here: whether the court reasonably found that the proposed evidence (1) was not relevant and (2) was cumulative and more prejudicial than probative under section 352. As in Minifie, the proposed evidence of Hall's violence and threats against Aniya P.—including in response to her reporting him to police—was relevant and therefore should have been admitted because it would have corroborated appellant's testimony regarding her fear of Hall based on his violence and threats against her, as well as against Aniya P., and supported her credibility in a case in which her state of mind when she fled police in the stolen car was at issue. The court therefore unreasonably concluded the proffered evidence was not relevant. (See Minifie, supra, 13 Cal.4th at p. 1067; § 210; see also pt. IV., post.) Likewise, because the evidence corroborated appellant's testimony regarding her state of mind and supported her credibility regarding her stated reason for fleeing from police in a stolen car and, moreover, did not " ' "uniquely tend[] to evoke an emotional bias against . . . [one party]," ' " the court abused its discretion when it found that the evidence was cumulative and more prejudicial than probative under section 352. (Minifie, at pp. 1070-1071; see also People v. Jackson (1991) 235 Cal.App.3d 1670, 1681 [exclusion of defense testimony corroborating defendant's testimony was not "merely cumulative" under § 352].)
Also, as appellant notes, section 1101, subdivision (a) was not implicated by this evidence because the purpose of its admission was to corroborate appellant's testimony regarding her state of mind when she followed Hall's direction to drive to Richmond. As the court in Minifie explained regarding the limits on the use of character evidence to prove conduct on a specific occasion in subdivision (a) of section 1101: " 'This limitation is irrelevant because the group's reputation was offered to explain [defendant's] state of mind, rather than to prove [the victim's] actual intentions. Moreover, the statute does not limit "the admissibility of evidence offered to support or attack the credibility of a witness" (Evid. Code, § 1101, subd. (c)), and evidence of the group's reputation for violence lent credibility to [defendant's] claim that he lived in fear of them.' " (Minifie, supra, 13 Cal.4th at p. 1067.)
As with the admission of improper impeachment evidence (see pt. I. ante), we need not determine whether the erroneous exclusion of this evidence was prejudicial on its own because, as we shall discuss in part IV., post, we conclude the error combined with other errors to deprive appellant of a fair trial. (Hill, supra, 17 Cal.4th at p. 819; see pts. II, III. & IV., post.)
In light of this conclusion, we need not address appellant's claim that the error implicated her constitutional right to present a defense. --------
IV. Trial Court's Refusal to Instruct on the Defense of Necessity
Appellant contends the court erred when it refused to instruct the jury on the defense of necessity.
A. Trial Court Background
Defense counsel requested that the court instruct the jury on the defense of necessity because, unlike with duress, necessity did not require an immediate threat. The court asked what was "the lesser of two evils if she's not under any threat?" to which counsel responded that the lesser of two evils was obeying Hall's direction to drive the stolen car instead of reporting him to the police. The court then stated that the necessity defense was not available in the absence of an immediate threat and that, "[u]nder your theory, any person that would commit any crime could assert, as a defense, any crime if they thought someone was going to beat them up or hurt them in the future if they commit the crime [sic] . . . ." Counsel responded that appellant "indicated that even if she reports him to the police, he is going to bail out immediately and he's going to come and hurt her, like he has done in the past and she knows he had done to other people." The court said it would consider case citations offered by counsel and rule on the issue later.
During a subsequent discussion, defense counsel further stated that appellant had driven as "she did to avoid an imminent evil, significant imminent evil which was bodily harm sometimes to the tune of being bludgeoned with a firearm splitting open her head, attack with a belt buckle, hit with a metal bar, I guess a crutch. Various other things that she suffered." He further asserted "there were no reasonable legal alternative[s to] commission of the acts because she indicated that he's likely to get out of custody in the immediate future . . . and thereby put her at risk that the police can't protect [her] from. . . . She entertained [a] good faith belief that the act was necessary to keep her out of greater harm."
The court denied the request for a necessity instruction as follows: "I think there are several of the elements where there's not substantial evidence to support the defense."
B. Legal Analysis
A trial court must instruct on a defense "for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant . . . ." (People v. Salas (2006) 37 Cal.4th 967, 982.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' [Citations.]" (Ibid.) Any doubt as to the sufficiency of the evidence to warrant such an instruction should be resolved in the defendant's favor. (People v. Tufunga (1999) 21 Cal.4th 935, 944.) We review de novo the trial court's refusal to give a requested instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
" 'The necessity defense is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile.' [Citation.] 'By definition, the necessity defense is founded upon public policy and provides a justification distinct from the elements required to prove the crime.' [Citation.] 'Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime.' [Citation.]" (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164 (Verlinde).) The defendant has the burden of proving the necessity defense by a preponderance of the evidence. (People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath); CALCRIM No. 3403.)
" 'To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [she] violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [she] did not substantially contribute to the emergency.' [Citation.]" (Verlinde, supra, 100 Cal.App.4th at pp. 1164-1165.)
In the present case, respondent argues that appellant failed to meet her burden of showing she evaded police " 'to prevent a significant and imminent evil' " and " 'with no reasonable legal alternative.' " (Verlinde, supra, 100 Cal.App.4th at p. 1164.)
First, the Fifth District Court of Appeal's decision in Heath is relevant to the question whether appellant presented sufficient evidence that she fled from police in the stolen car to prevent a significant and imminent harm. In Heath, the appellate court rejected a defendant's claim that he was prejudiced by the trial court's mislabeling of a necessity instruction as "justification or duress." (Heath, supra, 207 Cal.App.3d at pp. 901-902.) In finding that the mislabeling of the instruction was harmless error, the court explained: "Appellant's own testimony presents sufficient justification to warrant instructions on both the duress and necessity defenses. He was first subject to an immediate and imminent threat to his life when Darryl Sodersten allegedly held a loaded gun to him in the vehicle. Such an imminent threat to his life clearly falls within the ambit of the duress defense. However, after he allegedly left the vehicle, walked to the King's residence, threw the planter through the window to secure entry and rummaged through the house, appellant was no longer subject to the same imminency of harm as when threatened in the vehicle. Once appellant was outside the immediate presence of Sodersten, the threat became one in the immediate future allowing appellant an opportunity, albeit brief, to balance his options, which is the very essence of the necessity defense. Appellant actually benefitted from both instructions because his own testimony negated the imminent harm element consistent with the duress defense.
"The jury could have found from the evidence presented that appellant was threatened in the vehicle with death by Sodersten, but that the burglary was not committed by appellant until hours later. Under such circumstances, the necessity instruction would be of more value to appellant than the duress instruction." (Heath, supra, 207 Cal.App.3d at p. 902.)
Although the court in Heath was not addressing the precise issue involved here—the trial court's refusal to give a necessity instruction—its evaluation of facts warranting such an instruction supports appellant's assertion that acting to "prevent a significant and imminent evil" (Verlinde, supra, 100 Cal.App.4th at p. 1164) does not require the level of immediacy the court in the present case suggested when it rejected appellant's request for the instruction. The harm feared by appellant did not have to be so immediate that it would take place while she and Hall were still in the car, but could encompass the violence she believed he would subject her to after he bailed out of jail, which she knew could occur as soon as that same day.
Second, in arguing that appellant did not satisfy her burden of showing that there was no reasonable legal alternative available, respondent argues that she "had a number of legal alternatives available," i.e., "[s]he could have submitted to responding police, made a report of domestic abuse and obtained a temporary restraining order against William Hall." This possible scenario envisioned by respondent does not, however, negate evidence supporting the reasonableness of appellant's belief that the police could not protect her, given her fear of Hall based on his repeated violence and threats against her and other women. Appellant thus satisfied her burden of presenting evidence to establish, inter alia, that she evaded police because to resort to legal authorities " 'would be futile' " in light of her history with Hall. (Verlinde, supra, 100 Cal.App.4th at p. 1164.)
We conclude appellant presented sufficient evidence at trial to require the court to resolve any doubts in her favor and instruct the jury on the defense of necessity. (See People v. Salas, supra, 37 Cal.4th at p. 982; People v. Tufunga, supra, 21 Cal.4th at p. 944.) We also conclude the court's error in failing to so instruct the jury was prejudicial under any standard of review, particularly in light of the other errors already discussed. (See Salas, at p. 984 ["We have not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense"].) That is because, even under the state standard of error, it is reasonably probable the jury would have found appellant satisfied her burden of proving the necessity defense by a preponderance of the evidence, had the evidence corroborating her testimony been admitted and the evidence and improper argument undermining her credibility not been admitted. (See Heath, supra, 207 Cal.App.3d at p. 902; CALCRIM No. 3403; pts. I., II. & III., ante.)
The success of a necessity defense turned on appellant's credibility as to her claims that she acted out of fear of Hall when she fled from the officers in the stolen car and that the police could not protect her. The Aniya P. evidence, which supported appellant's testimony that Hall threatened and engaged in violence against other partners, would have bolstered appellant's claim that stopping the car and reporting Hall to police would have endangered her and been futile in terms of protecting her from Hall's wrath. The various other errors thus both negatively affected appellant's ability to show that a necessity defense instruction was warranted and more generally undermined the defense theory regarding appellant's state of mind and intent when she fled from police in the stolen vehicle.
In sum, all of the errors at trial, which (1) kept the jury from considering whether appellant's conduct was justified by necessity; (2) kept relevant, corroborating evidence from the jury regarding her fear of Hall; and (3) allowed the prosecution to portray her as a dangerous, violent person, combined to deprive appellant of a fair trial. (See Hill, supra, 17 Cal.4th at p. 847 [due to cumulative effect of numerous errors that occurred during trial, "defendant was deprived of that which the state was constitutionally required to provide and he was entitled to receive: a fair trial"].)
DISPOSITION
The judgment is reversed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.