People v. Berg CA1/2

Filed 11/18/20 P. v. Berg CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A156886
v.
JEFFREY JOHN BERG, (Sonoma County
Super. Ct. No. SCR711894)
Defendant and Appellant.
Jeffrey John Berg was convicted of making criminal threats while
personally using a knife, and two counts of exhibiting a deadly weapon. Berg
contends that the criminal threats conviction must be reversed because the
trial court error in limiting his counsel’s cross-examination as to the
credibility of the complaining witness and in giving a special jury instruction
that reinforced the credibility of the complaining witness denied him a fair
trial. We agree, and we shall reverse this conviction. Berg also contends that
the trial court erroneously denied his Trombetta1 motion to dismiss the
criminal threats charge, or at a minimum give an adverse inference jury
instruction, based on the alleged failure of the police to collect exculpatory
evidence at the scene. On this issue we find no error.
1 California v. Trombetta (1984) 467 U.S. 479 (Trombetta).
1
BACKGROUND
A. Charged Offenses
The Sonoma County District Attorney charged Berg with making
criminal threats (Pen. Code,2 § 422, subd. (a) [count 1]); dissuading a witness
(§ 136.1, subd. (b)(1) [count 2]; and with two misdemeanor counts of
exhibiting a deadly weapon (§ 417, subd. (a)(1) [counts 3 & 4].) It was further
alleged that Berg personally used a knife during the commission of counts 1
and 2 (§ 12022, subd. (b)(1)).
B. Evidence at Trial
In the late afternoon of January 14, 2018, David Sean Sullivan, a
retired New York City police detective, was drinking beer and watching
football at the Hideaway Bar in Putnam Plaza in Petaluma. Sullivan had
been at the bar for two to three hours and, by his estimate, drank four to six
beers. When Sullivan went outside to smoke on a balcony overlooking
American Alley in the plaza, he saw Berg cursing and yelling at people.
Recognizing Berg from a previous encounter in the plaza about four days
earlier—during which Berg screamed obscenities and threw food at Sullivan
and at others in the plaza—Sullivan called the police.
Meanwhile, Robyn Williams was working at a bakery across American
Alley. Williams heard someone yelling outside, and, when she went to the
window, saw Berg walking down the alley. He was yelling obscenities and
appeared to be “doing . . . whippets,” which she believed was nitrous oxide
gas.
2 All further undesignated statutory references are to the Penal Code.
2
Williams went outside and called the police. She saw Sullivan on the
balcony at the Hideaway Bar and yelled up to ask if he was going to call the
police. Sullivan confirmed he was also on the phone with the police.
At that point, Berg started to come at Williams with a box cutter.
Williams was frightened; she ran back into the bakery and locked the door.
Berg tried without success to open the bakery door by bashing it with a chair.
Berg then went back into American Alley and yelled at Sullivan, still on the
balcony. Sullivan told Berg to calm down and said the police were on the
way. Sullivan admitted that he may have told Berg, “[W]hy don’t you go fuck
yourself now?”
Sullivan testified at trial that Berg reached into a bag, took out a blade
and said, “ ‘I’m going to cut you open. I’m going to fuck you up. I’m going to
kill you.’ ” However, when Sullivan was shown a transcript of what he said
to law enforcement at the scene, he admitted on cross-examination that he
told police, “I don’t remember now if he said kill me because it doesn’t matter
to me. . . . [¶] You got a blade in your hand and you’re rushing up the stairs at
me.”
Sullivan testified that Berg then ran up the stairs to the balcony. As
Berg was part way up the stairs, Sullivan took the lid from a Weber barbeque
grill to use as a shield and then hurled the grill at Berg. The grill squarely
hit Berg, who was stunned and staggered back down the stairs.
A passerby, Gregory Johnson, testified that as he walked into the plaza
that afternoon, Sullivan warned him not to go down American Alley.
Johnson started to walk in the other direction but returned when he heard an
exchange between Sullivan and Berg. Johnson could not hear everything,
but thought he heard Berg yell “faggot” and “come at me bro” to Sullivan.
Johnson heard Sullivan say to Berg, “This isn’t my first rodeo.” Johnson
3
described Sullivan as “very calm, very friendly,” and described Berg as “being
aggressive[.]” Johnson saw Berg run up the stairs towards Sullivan. He saw
Sullivan use the lid of a barbeque grill as a shield.
A Petaluma police officer who responded to the scene, Dario Giomi,
recognized Berg from previous contacts. Giomi searched Berg and found a
box cutter in his possession.
Giomi interviewed Sullivan at the scene. Sullivan told Giomi that Berg
had made a verbal threat. Giomi immediately noticed that Sullivan had been
drinking. Giomi could smell alcohol on Sullivan’s breath, but Sullivan did not
appear impaired. Giomi knew that Sullivan “had been hanging out in a bar.”
Because Giomi was aware that alcohol can impact a person’s perception and
recollection of events, he wanted to give Sullivan a test to determine his blood
alcohol level, although he did not tell Sullivan he wanted to administer the
test. By the time Giomi retrieved the Breathalyzer machine from his patrol
car and returned to the scene, Sullivan was gone.
After getting Sullivan’s statement, a woman came up to Giomi while he
was still at the scene in Petaluma. The woman said that when she came out
of a bathroom, she saw Sullivan talking to Berg, but Berg did not say
anything back, and he appeared confused. She then said, “[t]hat’s all I have”
and walked away, without Giomi obtaining any contact information from her
during their 20 to 30 second encounter. Giomi had the impression that the
woman had not seen the entire incident.
C. Verdict and Sentencing
The jury acquitted Berg of dissuading a witness (§ 136.1, subd. (b)(1)
[count 2]). The jury convicted Berg of making criminal threats (§ 422, subd.
(a) [count 1]) and found true the allegation that he personally used a knife
4
(§ 12022., subd. (b)(1)). The jury also convicted Berg of two misdemeanor
counts of exhibiting a deadly weapon (§ 417, subd. (a)(1) [counts 3 & 4]).
The trial court imposed the upper term of three years on the criminal
threats count (§ 422), and a one-year weapon use enhancement, for an
aggregate term of four years. The trial court sentenced Berg to time-served
on the two misdemeanor counts of exhibiting a weapon (§ 417, subd. (a)(1)).
This timely appeal followed.
DISCUSSION
I. Reversal is Required Based on the Cumulative Effect of the
Trial Court’s Errors
Berg argues that the trial court improperly limited defense counsel’s
cross-examination of Sullivan, and that the trial court gave a special jury
instruction that bolstered Sullivan’s credibility and disparaged defense
counsel. He claims the combined effect of these two errors deprived him of a
fair trial. We agree.
A. The Limits on Defense Counsel’s Cross-Examination of Sullivan
1. Background
Berg filed a written motion in limine to admit evidence that Sullivan
had a pending misdemeanor case for violating Penal Code section 484,
subdivision (a), in which he was “alleged to be a repeated shoplifter of food
items from Petaluma Market in Petaluma.” At the hearing on the motion,
defense counsel made the following offer of proof: “It’s an open 484 case from
May of this year where Mr. Sullivan was arrested for stealing a sandwich
from the Petaluma Market. There was also evidence that he had sort of an
MO of ordering sandwiches and just walking out without paying for them.
And I think it—to me it actually does shed a lot of light on who Mr. Sullivan
is, especially if he’s going to come up to the stand and talk about his past as a
former NYPD officer. He’s certainly not the totally clean character that he
5
would like to be portrayed as, and I do think some questioning on this is
relevant particularly given how fresh it was to what happened.” (Italics
added.)
The prosecution did not argue against the admissibility of the pending
theft case. But citing Evidence Code section 352, the prosecutor objected to
any questioning beyond, “Do you have a currently pending case for theft?”
The prosecutor stated that Sullivan had been offered Community
Accountability Diversion (CAD)3 and also expressed concern that Sullivan
would incriminate himself.
Defense counsel argued the underlying facts of the thefts were relevant
to Sullivan’s credibility. Counsel wanted to ask Sullivan “a little bit about . . .
his dishonest scheme in more detail.” The trial court noted that because
Sullivan’s case was pending he could invoke his right not to answer questions
about a dishonest scheme.4 The trial court took the issue under submission
until the following court date.5
Defense counsel stated he would assume “[f]or the moment” he could
only ask the basic question of whether Sullivan had a current pending case
for theft.
3 The record provides no information about this diversion program or
its requirements, other than statements by counsel and the court. No one
testified in front of the jury about Sullivan’s participation in CAD. In fact, as
the Attorney General notes, “[t]he name and nature of the diversion program
were beside the point. They were not facts in the case.”
4 This did not materialize and is not an issue on appeal.
5 The record does not reflect that any ruling was ever made in advance
of Sullivan’s testimony.
6
Five days later, at trial, Sullivan testified on direct examination that he
had a current misdemeanor theft case pending in Sonoma County, and that
he was not receiving any benefit in exchange for testifying at Berg’s trial.
During cross-examination, defense counsel asked Sullivan about his
“currently open theft case . . . in Sonoma County.” Sullivan acknowledged he
had been “charged with stealing from Petaluma Market.” Defense counsel
then asked Sullivan whether the allegation was that he had stolen from
Petaluma Market “12 times in the past.” The trial court sustained the
prosecutor’s objection and told Sullivan he did not need to answer the
question. On the prosecution’s motion, the trial court ordered the question
stricken from the record.
Defense counsel then asked Sullivan, “You’re getting a deal in that case
where you’re getting the case dismissed, right?” Again, the trial court
sustained the prosecutor’s objection. Then, defense counsel asked Sullivan,
“How many thefts have you committed in your life and gotten away with?”
and “[Y]ou did steal a $7 sandwich from Petaluma Market[,] right?” Both of
these questions drew objections from the prosecutor, which were sustained.
The court called counsel into chambers and stated: “He’s been
impeached with a prior theft conviction. You keep going to 12 thefts. You’ve
implied erroneously to the jury something that is clearly diversion eligible to
the entire state of California, and anymore misrepresentations to the jury
based on your cross-examination is not going to be tolerated, and I’m not
going to come into chambers. It’s going to be all on the record in front of the
jury.”
Defense counsel responded: “I certainly don’t mean to disrespect the
Court by any stretch. And what I’m referring to in terms of 12 thefts, I won’t
go into it if the Court is telling me that’s it. If that’s it. I won’t ask any more
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questions. [¶] I don’t believe that I’m misrepresenting what I was informed
of in the police report[6] for that theft case for Mr. Sullivan. That’s
information contained in that report that was given to me by the district
attorney’s office. I’m asking that in good faith.” The trial court, however,
barred any further inquiry: “So the fact that there’s a theft, quite frankly, it’s
questionable even admitting that into evidence where it’s a diversion case,
it’s already in the record. It’s already been asked and answered by [the
prosecutor]. Anything else concerning that is not relevant.”
2. Analysis
Under both the California and Federal constitutions, a defendant’s
right to confront the witnesses against him encompasses a right to impeach
those witnesses. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15;
Delaware v. Van Arsdall (1986) 475 U.S. 673, 678; Davis v. Alaska (1974) 415
U.S. 308, 316; People v. Quartermain (1997) 16 Cal.4th 600, 623.) But not
every restriction on a defendant’s desired method of cross-examination is a
constitutional violation. (People v. Chatman (2006) 38 Cal.4th 344, 372.) The
trial court “retains wide latitude in restricting cross-examination that is
repetitive, prejudicial, confusing of the issues, or of marginal relevance.
[Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on other
grounds by People v. Doolin (2009) 45 Cal.4th 390; People v. King (2010) 183
Cal.App.4th 1281, 1316.) And, absent a showing by defendant that the
prohibited cross-examination would have produced “a significantly different
impression of [the witness’s] credibility.” (Delaware v. Van Arsdall, supra,
475 U.S. at p. 680), there is no confrontation clause violation. (People v. Frye,
supra, 18 Cal.4th at p. 946.)
6The underlying police report is not included in the record. However,
the veracity of the report was not challenged in the trial court or on appeal.
8
Under California law, evidence of nonfelony conduct involving moral
turpitude is generally admissible to impeach a witness’s credibility as it may
suggest a willingness to lie. (People v. Wheeler (1992) 4 Cal.4th 284, 295-
296.) This is true even if the witness has charges pending or the conduct did
not result in a conviction. (People v. Martinez (2002) 103 Cal.App.4th 1071,
1080 [“It is longstanding law that a prosecution witness can be impeached by
the mere fact of pending charges”].) “[T]he test for admissibility of evidence
is not a strict one: As a general matter, evidence may be admitted if relevant
(Evid. Code, § 350), and ‘ “[r]elevant evidence” means evidence . . . having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action’ (id., § 210).” (Coffey v.
Shiomoto (2015) 60 Cal.4th 1198, 1213.) “ ‘ “The test of relevance is whether
the evidence tends, ‘logically, naturally, and by reasonable inference’ to
establish material facts . . . .” ’ ” (People v. Wilson (2006) 38 Cal.4th 1237,
1245.) However, even relevant evidence may be excluded if its “probative
value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
Code, § 352.)
The trial court has broad discretion to determine the relevance of
evidence, and a reviewing court will not disturb the court’s exercise of that
discretion unless it acted in an arbitrary, capricious or patently absurd
manner. (People v. Jones (2013) 57 Cal.4th 899, 947.)
Here, the trial court precluded defense counsel from exploring the full
extent of Sullivan’s misdemeanor misconduct on the ground that it was not
relevant. The jury was permitted to hear that he had stolen a sandwich once
from the Petaluma Market, but not that he had done so a dozen times.
9
But if one time was relevant and admissible to the issue of the
witness’s credibility, 12 times was plainly relevant, too, in assessing whether
Sullivan had a “willingness to lie” (People v. Wheeler, supra, 4 Cal.4th at p.
295), at the time he reported the crime and when he testified at trial. (See
People v. Gutierrez (2018) 28 Cal.App.5th 85, 91 [“ ‘[E]vidence that a
defendant committed a series of crimes is more probative of his credibility
than a “single lapse” ’ ”].) Sullivan’s credibility was a pivotal issue in the
criminal threats charge, since he was the only witness who heard Berg yell
that he was going to kill Sullivan. The prosecution presented Sullivan as an
experienced New York City police detective and a concerned citizen who had
had a one-time lapse in judgment. Had the jury heard evidence that Sullivan
had been involved with 12 thefts from the same market, they could very well
have had “a significantly different impression of [Sullivan’s] credibility.”
(Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.)
Relying on Evidence Code section 352, the Attorney General argues the
evidence was properly excluded because its probative value was minimal; the
alleged thefts had no bearing on whether Sullivan could perceive what had
occurred. The trial court, however, never appeared to engage in an Evidence
Code section 352 analysis. The proffered evidence had significant probative
value as it was offered to impeach Sullivan’s overall credibility and to
establish his willingness to commit acts of dishonesty. The evidence was not
so complex that it would have entailed an undue consumption of time or, as
the Attorney General now suggests, resulted in “12 trials within[7] the main
7The Attorney General contends the “details” of the offenses “could
have been time consuming and distracting without yielding relevant
information.” But this is speculation because the objection was never raised,
and the issue did not figure into the court’s analysis.
10
trial,” an argument not raised below. Nor was the evidence remote in time,
given that the theft case was apparently pending, or confusing.
Finally, any danger that the jury would use the evidence of 12 thefts for
an improper purpose was already taken into account by CALCRIM No. 3168
given to the jury on how to evaluate the credibility of witnesses who “may
have committed a crime or other misconduct . . . .” Sullivan was the only
witness to whom this instruction was applicable.
We thus conclude that it was error to restrict the cross-examination of
Sullivan as it severely limited defense counsel’s ability to impeach the
credibility of this key witness.
The next issue is what, if any, is the consequence. The
constitutionality of an improper denial of a defendant’s opportunity to cross-
examine an adverse witness on matters reflecting on the witness’s credibility
is subject to the harmless error standard set forth in Chapman v. California
(1967) 386 U.S. 18. (See Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
Under the Chapman harmless-error standard of review, “[t]he correct inquiry
is whether, assuming that the damaging potential of the cross-examination
were fully realized, a reviewing court might nonetheless say that the error
was harmless beyond a reasonable doubt. Whether such an error is harmless
in a particular case depends upon a host of factors, all readily accessible to
reviewing courts. These factors include the importance of the witness’
8 As given, CALCRIM No. 316 instructed: “If you find that a witness
has committed a crime or other misconduct, you may consider that fact only
in evaluating the credibility of the witness’s testimony. The fact that a
witness may have committed a crime or other misconduct does not
necessarily destroy or impair a witness’s credibility. It is up to you to decide
the weight of that fact and whether that fact makes the witness less
believable.”
11
testimony in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s
case. [Citations.]” (Delaware v. Van Arsdall at p. 684.)
We address the prejudicial effect of the trial court’s improper limitation
on cross-examination in part I.C., post.
B. The Special Instruction About Sullivan
1. Background
Towards the end of the prosecution’s case, at a conference outside the
presence of the jury, the prosecutor offered to call Sullivan’s attorney to
testify that Sullivan was not receiving a deal in exchange for his testimony.
The court declined the request but said the prosecutor could draft a special
instruction to that effect and that Sullivan was “participating in diversion.”
Over defense counsel’s objection to the instruction as written, the court
stated that without the special instruction the jury would have the
impression that Sullivan was receiving a dismissal for cooperating with law
enforcement. Defense counsel correctly noted that the prosecution had
already asked Sullivan if he was getting a deal for testifying.9 Defense
counsel also explained why he had a good faith belief that Sullivan had 12
pending cases (an uncontroverted police report) and why he believed that
9 The prosecutor asked four questions about Sullivan’s conduct.
Sullivan answered yes to the first two questions: “Mr. Sullivan, at the time
you—you lived in Petaluma?” and “And do you currently have a—a pending
theft case with my office?” The next question was: “And are you receiving
any sort of benefit in that case for testifying here today?” The witness said
no, and the prosecutor followed up, “Is that a misdemeanor?” To which the
response was “[y]es.”
12
Sullivan would not necessarily have qualified for diversion. Defense counsel
said that “[s]ometimes people get CAD who aren’t eligible for CAD,” adding
that Sullivan had been offered CAD in May, and then “rereferred” to CAD in
both August and October while Sullivan’s case was pending. Defense counsel
represented that “rereferrals” to CAD are not necessarily a matter of right
and that it was possible Sullivan received a benefit beyond basic diversion.
Accordingly, defense counsel averred that he had asked what he thought was
an accurate follow-up question on cross-examination.
The court gave this special instruction:
“During cross examination of witness Sean Sullivan, you may have
heard defense counsel suggest that Mr. Sullivan received some type of benefit
from the District Attorney’s Office in a pending misdemeanor case. Defense
counsel suggested that Mr. Sullivan will receive a dismissal of his petty theft
case in exchange for his testimony. This is inaccurate. You are not to
consider those questions for any reason. You are reminded that questions
from either attorney are not evidence. And nothing inferred from those
questions are to be considered as actual evidence in this case.
“You are further instructed as follows:
“1. In Mr. Sullivan’s pending case, he is eligible for Community
Accountability Diversion (CAD).
“2. First time offenders charged with specific misdemeanors,
including Petty Theft, are eligible by law to participate in this diversion
program.
“3. Upon successful completion of the CAD program the
misdemeanor charges are dismissed by law.
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“4. Participation in the CAD program was in no way a benefit
provided to Mr. Sullivan in exchange for his testimony in this case, rather it
was an opportunity provided to him by right.”
2. Analysis
Berg argues this instruction unfairly penalized him with an adverse
inference for defense counsel’s conduct. He analogizes the instruction given
here to that criticized in People v. Bell (2004) 118 Cal.App.4th 249, 257. Bell
involved untimely discovery provided by defense counsel, but the instruction
referred to “the Defendant” who was not responsible for the late discovery.
(Id. at pp. 254-255.) Here, the instruction did not assign blame to Berg, but
specifically referred to defense counsel’s “inaccurate” suggestion that Sullivan
had received some type of benefit in exchange for his testimony. The
instruction could not be reasonably interpreted to cast aspersions on Berg
himself.
Berg also contends the instruction violated his rights to due process
and assistance of counsel because it was duplicative and argumentative and
bolstered Sullivan’s credibility and disparaged defense counsel.
“A jury instruction is improperly argumentative if ‘it would invite the
jury to draw inferences favorable to the defendant [(or the prosecution)] from
specified items of evidence on a disputed question of fact, and therefore
properly belongs not in instructions, but in the arguments of counsel to the
jury.’ [Citations.] ‘In a proper instruction, “[what] is pinpointed is not
specific evidence as such, but the theory of the defendant’s [(or the
prosecution’s)] case.” ’ [Citation.] We review an argumentative instruction
for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836.” (People
v. Santana (2013) 56 Cal.4th 999, 1012.)
14
People v. Wright (1988) 45 Cal.3d 1126 is instructive. In Wright, the
California Supreme Court considered whether the trial court erred by failing
to give pinpoint instructions requested by the defense about eyewitness
identifications. (Id. at pp. 1134-1144.) The court disapproved as
“argumentative” an instruction that would have advised the jury to
“ ‘consider’ ” various items of evidence, such as the fact that all the robbers
wore ski masks, in assessing the defendant’s guilt. (Id. at pp. 1135, 1138.)
The Wright court explained: “We disapproved of ‘the common practice [of]
[selecting] certain material facts, or those which are deemed to be material,
and endeavoring to force the court to indicate an opinion favorable to the
defendant as to the effect of such facts, by incorporating them into
instructions containing a correct principle of law,’ and we explained, ‘An
instruction should contain a principle of law applicable to the case, expressed
in plain language, indicating no opinion of the court as to any fact in issue.’ ”
(Id. at p. 1135, quoting People v. McNamara (1892) 94 Cal. 509, 513.)
Turning to the case before us, we note that during defense counsel’s
challenged line of questioning, the trial court sustained three objections. The
jury also had been instructed with CALCRIM No. 222, which emphatically
tells jurors that “[n]othing” that attorneys say, including their questions and
argument, is evidence, and that they must not assume that something is true
“just because” an attorney “asked a question that suggested it was true.”
The Attorney General appears to concede that the instruction was
duplicative, but maintains it was necessary because “there was a risk that
the point needed emphasis beyond the standard instruction.” The problem is
that the instruction singled out defense counsel and implied that he had
acted improperly by suggesting “inaccurate” information about Sullivan’ s
pending case. The Attorney General counters that the challenged instruction
15
was not argumentative because it did not direct the jury to specific evidence.
Rather, it directed the jury to what was not evidence. In this regard, the
Attorney General claims the instruction was more in the nature of an
admonition that told the jury what they should not consider. Viewed under
this rubric, the Attorney General asserts the instruction could not be deemed
argumentative. We disagree.
People v. Peoples (2016) 62 Cal.4th 718 (Peoples) cited by the Attorney
General is distinguishable. In Peoples, the California Supreme Court
explained that although an admonition singled out defense counsel for
referring to stricken testimony in his questioning of an expert it was
appropriate under the circumstances because the question referred to facts
not in the record. (Id. at pp. 766-767.) There, defense counsel attempted to
ask an expert about her willingness to testify in the absence of data. (Id. at
p. 767.) The court allowed defense counsel to ask that question, but sought,
upon the prosecutor’s motion, to clarify that the reason the expert lacked
sufficient evidence was that defense counsel failed to comply with a discovery
order. (Ibid.) “The force of the trial court’s admonition was to correct a
possible misperception on the part of the jury that [the expert] had engaged
in an impropriety in her prior testimony, and to prevent defense counsel from
taking advantage of a situation he had created during the earlier
proceedings.” (Ibid.) Notably, the admonition did not instruct the jury to
alter the weight assigned to the evidence presented. (Ibid.)
Here, defense counsel was not permitted to ask Sullivan about the
nature of his pending theft offenses. The challenged instruction reinforced
the notion that Sullivan was a “first-time offender,” which the prosecutor
then exploited during closing argument by referring to Sullivan as a “first-
time offender” who had an “open theft case.” The net effect of the instruction
16
was to convey the court’s negative opinion about defense counsel and to invite
the jury to draw favorable inferences to the prosecution’s complaining
witness.
We address the prejudicial effect of the argumentative instruction in
part I.C., post.
C. Cumulative Effect of the Errors Requires Reversal
“The ‘litmus test’ for cumulative error ‘is whether defendant received
due process and a fair trial.’ [Citation.]” (People v. Cuccia (2002) 97
Cal.App.4th 785, 795.) “Under the ‘cumulative error’ doctrine, we reverse the
judgment if there is a ‘reasonable possibility’ that the jury would have
reached a result more favorable to the defendant absent a combination of
errors.” (People v. Jandres (2014) 226 Cal.App.4th 340, 361; see People v.
Williams (2009) 170 Cal.App.4th 587, 646.)
The criminal threats charge hinged on the testimony and the credibility
of Sullivan. A necessary element of this charge is a verbal statement. (§ 422,
subd. (a); People v. Toledo (2001) 26 Cal.4th 221, 227-228 [necessary elements
include verbal statement].) No other witness corroborated Sullivan’s
testimony at trial that Berg verbally threatened to kill him. It was thus
central to the prosecution’s case. (Delaware v. Van Arsdall, supra, 475 U.S.
at p. 684.) Further, conflicting evidence was presented on this essential
element. A year after the incident, Sullivan was clear in his trial testimony
that Berg had threatened to kill him. Yet, at the scene, Sullivan was
equivocal in his account of the incident. Sullivan admitted on cross-
examination that he told Giomi right after the incident, “I don’t remember
now if he said kill me because it doesn’t matter to me. . . . [¶] You got a blade
in your hand and you’re rushing up the stairs at me.” Also, Giomi testified at
17
trial about the unidentified witness who said Sullivan did the talking, and
that Berg said nothing.
This limitation on cross-examination, combined with the special jury
instruction, left the jury with the impression that Sullivan, a former police
officer, was a first-time offender who had experienced a single lapse of
judgment when he stole a sandwich from Petaluma Market. Taking one
sandwich might be chalked up to carelessness or mistake. However, taking a
dozen sandwiches from the same market (the “M.O.” defense counsel referred
to in arguing to admit the evidence) is altogether different in the jury’s
consideration of credibility.
The Attorney General contends that Berg was not prejudiced by the
limits put on the cross-examination of Sullivan because “the jury had
adequate information to evaluate the credibility” of Sullivan: his pending
theft case, his consumption of six beers, his acknowledgment that he could
have been wrong about Berg’s exact words and whether Berg said he would
kill him, and the unidentified witness who saw part of the incident and
reported that only Sullivan had been talking.
All of this evidence establishes that the criminal threats charge was a
close case. And yet, even though it was not disputed that Sullivan engaged in
misconduct involving more than one $7 sandwich on one day at the Petaluma
Market, the jury was not permitted to consider this fact, and then was led to
believe, by the limitation on testimony and the special jury instruction, that
Sullivan was a credible witness. This was not the complete picture.
The special instruction was argumentative and misleading and the
defense was effectively precluded from impeaching Sullivan on the critical
issue of his credibility. Taken together, these errors infringed Berg’s fair trial
rights to an unacceptable degree; we cannot conclude their combined effect
18
was harmless. There is a reasonable possibility at least one juror would have
had a reasonable doubt on the criminal threats charge in the absence of both
errors. (Buck v. Davis (2017) 137 S.Ct. 759, 776; Cone v. Bell (2009) 556 U.S.
449, 452.)
II. The Trial Court’s Denial of the Trombetta/Youngblood10 Motion
is Supported by Substantial Evidence
Berg argues the trial court erred in denying his motion to dismiss the
criminal threats count because police failure to collect exculpatory evidence
violated his due process rights under Trombetta and Youngblood. He further
asserts the trial court had a sua sponte duty to give an adverse inference jury
instruction, which it did not.
A. Background
Prior to trial, Berg moved to dismiss the criminal threats charge
pursuant to Trombetta and Youngblood, alleging police failed to obtain
contact information from a witness who approached Giomi at the scene.
The trial court conducted an evidentiary hearing at which Giomi
testified that he failed to obtain the contact information of the woman who
said she had heard Sullivan talking to Berg. Giomi believed the woman had
only heard a small portion of the incident.
The court denied the motion to dismiss, finding there was no failure to
preserve evidence. The court noted the evidence was “never deleted” because
it had “never [been] received by law enforcement so, . . . it’s really an
investigation issue.”
B. Analysis
“The federal constitutional guarantee of due process imposes a duty on
the state to preserve ‘evidence that might be expected to play a significant
10
Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).
19
role in the suspect’s defense.’ ” (People v. Montes (2014) 58 Cal.4th 809, 837
(Montes).) Whether the loss of evidence rises to the level of a due process
violation is governed by the principles set forth by the United States
Supreme Court in Trombetta and Youngblood. (People v. Alvarez (2014) 229
Cal.App.4th 761, 771 (Alvarez).) Under Trombetta, law enforcement agencies
must preserve evidence only if the evidence possesses exculpatory value that
was apparent before it was destroyed and if the evidence is of a type not
obtainable by other reasonably available means. (People v. Velasco (2011)
194 Cal.App.4th 1258, 1262 (Velasco); Trombetta, supra, 467 U.S. at pp. 488-
489.) As an alternative to establishing the apparent exculpatory value of the
lost evidence, Youngblood provides that a defendant may show that
“ ‘potentially useful’ ” evidence was destroyed as a result of bad faith.
(Velasco, supra, at p. 1262; see Youngblood, supra, 488 U.S. at p. 58.)
Although law enforcement has a duty to preserve exculpatory or
potentially exculpatory evidence in its possession, “due process does not
require the police to collect particular items of evidence. [Citation.] ‘The
police cannot be expected to “gather up everything which might eventually
prove useful to the defense.” ’ [Citation.]” (Montes, supra, 58 Cal.4th at p.
837 [no duty to collect blood samples]; Velasco, supra, 194 Cal.App.4th at p.
1263 [no duty to preserve prison clothing modified to conceal weapon]; People
v. Mills (1985) 164 Cal.App.3d 652, 656 [no duty to collect breath samples];
People v. Kelley (1984) 158 Cal.App.3d 1085, 1101-1102 [no duty to tape-
record confession]; see also People v. Harris (1985) 165 Cal.App.3d 324, 329
[“To date there is no authority for the proposition that sanctions should be
imposed for a failure to gather evidence as opposed to a failure to preserve
evidence”]; People v. Bradley (1984) 159 Cal.App.3d 399, 406 [“[W]e have
found no cases of precedential value which squarely hold that the
20
prosecution’s duty to preserve material evidence encompasses an initial duty
to affirmatively collect or gather or seize potentially material evidence in the
course of an investigation for defendant’s use”].)
“It is axiomatic that the constitutional due process guaranty is a
bulwark against improper state action. ‘[T]he core purpose of procedural due
process [is] ensuring that a citizen’s reasonable reliance is not frustrated by
arbitrary government action.’ [Citation.] If the state took no action, due
process is not a consideration, because there is no loss of evidence
attributable to the Government.” (Velasco, supra, 194 Cal.App.4th at p.
1263.) Here, a witness came up to the investigating officer at the scene, but
the officer took no action to obtain her contact information. Thus, at the
outset, this case appears to involve a failure to collect evidence rather than a
failure to preserve evidence already within the possession of the police, and
the due process considerations presented in Trombetta and Youngblood are
not applicable. (Id. at p. 1263.)
Nevertheless, we are mindful that the California Supreme Court and
United States Court of Appeals, Ninth Circuit, have at times suggested that
there may be an appropriate case where the failure to collect evidence might
warrant due process considerations. (Montes, supra, 58 Cal.4th at p. 838 [“we
have suggested that cases may arise in which the failure to collect evidence
could justify sanctions against the prosecution at trial”]; Miller v. Vasquez
(1989) 868 F.2d 1116, 1119 [sanctions for bad faith failure to collect
evidence].) While nothing in the record suggests that this is such a case, even
assuming the duty to preserve evidence extends to the officer’s failure to
obtain a witness’s contact information, we find no error.
“We review the trial court’s decision on a Trombetta/Youngblood motion
under the substantial evidence standard.” (Alvarez, supra, 229 Cal.App.4th
21at p. 774; see People v. Carter (2005) 36 Cal.4th 1215, 1246.) Our task “ ‘is to
review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value’ in support of the court’s decision.”
(Alvarez, supra, at p. 774.)
Here, substantial evidence supports the trial court’s ruling. At the time
the woman spoke to Giomi, it was not apparent she possessed exculpatory
evidence. From the officer’s perspective, the woman witnessed only a small
part of the incident, during which Berg was not talking. Giomi had no reason
to believe that the woman’s account was inconsistent with Sullivan’s version.
Sullivan never denied speaking to Berg. Numerous witnesses heard Berg
yelling in the alley. Thus, Giomi had no reason to conclude that the woman’s
statement, and thus her identity, had any evidentiary value.
Further, given the speculative value of obtaining the woman’s contact
information, Berg was required to show bad faith on part of the officer.
(Youngblood, supra, 488 U.S. at p. 58.) He did not do so. Giomi’s failure to
get the woman’s name, while although not ideal, is not enough to suggest he
acted in bad faith.
Because substantial evidence supports the trial court’s determination
that the investigating officer did not act in bad faith and that the uncollected
evidence did not have apparent exculpatory value, Berg has not shown a
violation of his due process rights under Trombetta or Youngblood.
Finally, Berg contends that, at a minimum, the court should have given
a favorable jury instruction under People v. Zamora (1980) 28 Cal.3d 88, 103
(jury instruction regarding the “approximate equivalent of the destroyed”
evidence). Although an adverse instruction may be a proper response to a
due process violation (see id. at pp. 96, 167), there was no such violation in
22
this case. When there is no Trombetta/Youngblood violation, “[t]he trial
court [is] not required to impose any sanction, including jury instructions.
[Citations.]” (People v. Cooper (1991) 53 Cal.3d 771, 811; see also People v.
Medina (1990) 51 Cal.3d 870, 893-894 [finding no sua sponte duty to give an
adverse instruction].)
III. Fines and Fees
Because we reverse the criminal threats conviction, Berg must be
resentenced. (See, e.g., People v. Leon (2008) 161 Cal.App.4th 149, 170.) This
outcome eliminates the need to address Berg’s argument that his attorney
was ineffective for failing to request a hearing on ability to pay various fees
and a restitution fine under People v. Dueñas (2019) 30 Cal.App.5th 1157.
On remand, Berg is free to make the arguments that he believes his attorney
should have made with respect to the fines and fees imposed with respect to
the two remaining misdemeanor convictions. (See People v. Hill (1986) 185
Cal.App.3d 831, 834 [“When a case is remanded for resentencing by an
appellate court, the trial court is entitled to consider the entire sentencing
scheme”].)
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings consistent with this opinion.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Kline, P.J.
_________________________
Stewart, J.
A156886, People v. Berg
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