People v. Neal CA1/1

Filed 3/25/21 P. v. Neal CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159400
v.
SHARELL NEAL, (San Francisco City and County
Super. Ct. No. SCN230953)
Defendant and Appellant.
A jury convicted appellant Sharell Neal of various crimes in connection
with a fight with another woman over a man. She challenges only her
second-degree robbery conviction, for taking the victim’s jewelry during the
fight. Neal argues on appeal that the trial court erred by (1) admitting
evidence that property other than the jewelry also went missing from the
crime scene and (2) disallowing Neal’s testimony about the facts underlying a
grand theft conviction used to impeach Neal. We reject these arguments and
affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the afternoon of December 3, 2018, Neal and another woman were
looking for a man with whom they were both involved and with whom Neal
had a child. The other woman parked her car near the water on Treasure
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Island and got out to look for the man. When she was returning to her
vehicle, she saw another car hit hers, and Neal and several other women got
out. Neal smashed several windows in the other woman’s car, and then she
and her friends attacked the other woman after the other woman cut Neal’s
head with a knife. A bystander recorded part of the assault on his phone, and
the recording was played for the jury.
The victim was wearing a necklace and rings when she was attacked.
She testified that Neal said to the others at one point, “Get all this bitch’s
jewelry” and “I want that necklace,” and that “[her] necklace was snatched
from [her] neck.” The victim further testified that her two rings were taken,
at least one by Neal.
When the victim returned to her vehicle after the attack, she
discovered that several of her other belongings were gone: her telephone,
purse, wallet, social security card, and money. Neal was not charged with
taking those items.
Neal was charged by information with one count of assault with a
deadly weapon (a vehicle) (Pen. Code, § 245 subd. (a)(1));1 one count of
assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), with
an allegation of great bodily injury (§ 12022.7, subd. (a)); and one count of
battery with serious bodily injury, with an allegation of infliction of great
bodily injury (§§ 243, subd. (d), 1192.7, subd. (c)(8)). Neal also was charged
with one count of second degree robbery with an allegation of great bodily
injury (§§ 211, 12022.7, subd. (a)). The information specifically alleged that
the robbery charge concerned the jewelry that Neal was alleged to have taken
from the victim. During trial, the trial court granted a request to add a
1 All statutory references are to the Penal Code unless otherwise
specified.
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misdemeanor count of vandalism (§ 594, subd. (a)) to conform to proof after
testimony about Neal breaking the victim’s car windows.
Neal testified in her own defense at trial and stated that at no point did
she put her hand inside the victim’s vehicle or take anything from the victim.
Neal testified that she was defending herself during the incident and pushed
the victim to the ground only after the victim spoke to her aggressively and
then stabbed her in the head.
Toward the end of the jury’s second day of deliberations, the trial court
asked if the jury had reached any verdicts because the court knew it would
have to excuse a juror who had a previously planned vacation that started
the following day. The foreperson confirmed they had and provided the
verdict forms already completed for four of the five counts against Neal.
Jurors found Neal not guilty of assault with a deadly weapon as well as
several lesser included offenses, and it also found her not guilty of battery
with serious bodily injury. But they found her guilty of the lesser-included
offense of misdemeanor battery and misdemeanor vandalism. Jurors further
found Neal guilty of assault with force likely to cause great bodily injury but
found not true the allegation that Neal personally inflicted great bodily
injury. After the juror with the planned vacation was excused and replaced,
the jury continued deliberations the following day. The same day the jury
began deliberations again, after around six hours, jurors found Neal guilty of
second degree robbery, but it found not true the allegation Neal personally
inflicted great bodily injury on the victim.
The trial court suspended execution of a five-year prison sentence and
sentenced Neal to four years of probation, with nine months in county jail.
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II.
DISCUSSION
A. The Trial Court Did Not Prejudicially Abuse Its Discretion by
Admitting Evidence of the Missing Items that Were Not the
Subject of the Robbery Charge.
1. Additional Background.
Neal moved pre-trial to exclude any reference to the alleged theft of the
victim’s purse, wallet, or ID card, because they were not the subject of the
robbery charge. Defense counsel argued there was no evidence that Neal
took any of those items and that admission of such evidence was “not
appropriate [or] relevant” and would be “highly prejudicial.” Counsel further
argued that testimony about the other missing items might lead the jury to
“just generally decide to convict Ms. Neal of robbery based on [the victim’s]
testimony that her purse, phone, wallet, ID card of that nature were missing
after this incident, where she’s not charged with that, and that would not be
appropriate.” The prosecutor responded that the jury should be permitted to
hear “the entire story.” The trial court denied Neal’s request to exclude the
evidence and stated that “I do think that there’s relevance” and that the
evidence was “not overly prejudicial.”
At trial, the victim testified about her necklace being “snatched” from
her neck after Neal said she wanted it and that Neal took a ring she (the
victim) was wearing on her right middle finger. The prosecutor asked if the
victim lost anything else, and she testified, “My belongings. My earrings
were no longer in my ear when I got up. My belongings that were in my
vehicle were gone. My telephone, my purse, my wallet, me and my son’s
social [security card], my money, everything was gone.” At the end of the
victim’s testimony, the trial court permitted jurors to submit questions for
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the victim. Jurors asked several questions, including whether the victim was
able to locate her cell phone, purse, or jewelry, and the victim testified she
was not.
Neal was asked on direct examination whether she ever saw the
victim’s purse, phone, “or any of those items,” and Neal said she did not. On
cross-examination, the prosecutor asked a series of questions about the
victim’s purse, and Neal insisted she had no knowledge of what happened to
the purse, wallet, or other items. When the trial court permitted jurors to
ask questions, they asked whether one of the women with Neal during the
attack took the victim’s purse. Neal testified, “If she [the other woman] did, I
didn’t see her take it. And the back seat, you can’t see in the front on the
floor, so I didn’t see any purse in my car. So [I’m] not sure if she took it or
not.”
Jurors were instructed under CALCRIM No. 1600 that in order for
them to convict Neal of robbery, the prosecution had to prove Neal took the
victim’s “property,” with no specific reference to the taking of the victim’s
jewelry. The verdict form on the robbery count specified, however, that the
property in question was the victim’s jewelry.
During closing argument, the prosecutor referred to the other missing
items when highlighting the evidence that Neal took the victim’s jewelry. He
argued, “Look at circumstantial . . . evidence [in] this case. When [the victim]
arrived on Treasure Island from San Leandro, she had a necklace on her
neck, she had rings on her hand. When she left in the ambulance, she didn’t
have any of those items. She testified that the defendant said ‘I like that
necklace,’ and took it from her. She testified . . . that the rings were taken.
She couldn’t recall who took one ring, but she recalled the defendant took the
other. You heard testimony from a police officer that saw her an hour prior
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to the incident, and she had those items on her body. When she walked back
to her car, which is not used for the robbery, her purse was missing. Just a
fairy Godmother come and remove all these items out of nowhere? There
were four people that were present. Defendant, two associates, and [the
victim]. And [the victim] doesn’t have her items. We know what happened to
them. Defendant, or her associates, took them. And as it relates to her
necklace, she told you exactly who took it.” The prosecutor then played the
video of the attack and argued it showed Neal taking the victim’s jewelry.
Neal’s counsel stressed in rebuttal that the prosecution had the burden of
proving beyond a reasonable doubt that Neal took the victim’s jewelry by
force or fear and to not “be distracted by the stuff about the purse. [Neal] is
not charged with taking [the victim’s] purse. She’s not charged with it. She’s
charged with the forcible taking of [the victim’s] jewelry.”
As we have said, jurors reached verdicts on four of the five counts
against Neal before the jury started deliberations again on the robbery count
after the substitution of a juror who had vacation plans. During their
deliberations on the robbery count, jurors asked for and were provided with a
readback of the redirect examination of the victim (when she was asked
about stabbing Neal and other topics but was not asked about items taken
during the charged encounter) as well as the brief testimony of a police officer
called by the defense who interviewed the victim when she was in the
hospital. Later that day, the jury found Neal guilty of second-degree robbery
but found not true the allegation that Neal inflicted great bodily injury.
2. Analysis.
Neal argues that the trial court abused its discretion when it permitted
the victim to testify about evidence of items that went missing from her car
but that Neal was not charged with taking. (People v. Foster (2010)
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50 Cal.4th 1301, 1328–1329 [rulings under Evid. Code, § 352 reviewed for
abuse of discretion].) In doing so, she relies on cases analyzing the admission
of “other crimes evidence,” where the jury is permitted to hear about a
defendant’s separate crimes that are unrelated to the charged offenses. (E.g.,
People v. Rogers (2013) 57 Cal.4th 296, 325 [evidence of two previous murders
in different states]; People v. Ewoldt (1994) 7 Cal.4th 380, 386 [evidence of
prior, uncharged lewd act on complaining witness].)
We are sympathetic to Neal’s relevance arguments. (Evid. Code, § 352
[court in its discretion may exclude evidence where its probative value
outweighed by a substantial danger of undue prejudice].) Since the victim
was not charged with taking the other items, the evidence was not directly
relevant to the charged offense. At the same time, the evidence, while not
directly relevant, related to the attack on the victim. Respondent contends
that the trial evidence “was sufficient to permit the inference that the[] other
items were taken during the assault by appellant’s friends at her direction
and such evidence was relevant to the jury’s understanding of the extent of
the robbery.”
Ultimately, we need not decide whether the admission of the evidence
was improper, because it was harmless. (People v. Turner (2020) 10 Cal. 5th
786, 824; People v. Watson (1956) 46 Cal.2d 818, 837.) Substantial evidence
was presented that Neal took the victim’s jewelry, and the evidence of other
missing items was not so prejudicial so as to affect the outcome of the trial.
Neal first contends that the determination of whether Neal took the victim’s
jewelry was mostly a credibility determination and evidence of the other
missing items was used to bolster the victim’s credibility, but we disagree.
Jurors viewed a bystander video relied on by the prosecution to bolster its
theory of the case, and they also heard testimony that the victim was not
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wearing jewelry she had been seen with before the fight. Neal points to her
acquittal on the charge that she committed assault with a deadly weapon as
a sign that the prosecution relied on evidence of other stolen items to boost
the victim’s credibility on the robbery charge. To the contrary, the fact the
jury acquitted Neal on some charges indicates that jurors evaluated witness
credibility on all charges. And there were ample examples where Neal’s
credibility was undermined. Neal admitted that she lied to police when
questioned about the incident by failing to disclose that she hit the victim’s
vehicle. She also admitted that she broke the windows of the victim’s car.
And the prosecutor impeached Neal using two prior convictions, discussed
below.
We also disagree with Neal’s characterization of the jury deliberations
as revealing the jury “showed considerable difficulty with its verdict in
general.” True enough, jurors asked for a readback of two witnesses’
testimonies when deliberating on the robbery charge. But those testimonies
were related to actions the victim took during the attack, suggesting that
jurors were focused on the allegation that Neal personally inflicted great
bodily injury during the robbery, as opposed to whether she took items from
the victim.
Neal contends that the length of jury deliberations on the robbery
charge indicates a close case, but the cases upon which she relies are
distinguishable because they involved factors other than the length of jury
deliberations. (People v. Cardenas (1982) 31 Cal.3d 897, 907 [jury deliberated
for 12 hours in case involving “several evidentiary errors”]; People v. Rucker
(1980), 26 Cal.3d 368, 391 [jury deliberated for nine hours in case where
improperly admitted statements relevant to “excellent” defense provided and
statements “were most prejudicial”]; People v. Woodard (1979) 23 Cal.3d 329,
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341 [issue of guilt “far from open and shut” as shown by nearly six hours of
deliberations and “sharply conflicting evidence”], italics added.)
We reject Neal’s prejudice arguments.
B. The Trial Court Did Not Abuse Its Discretion by Excluding Facts
Underlying Convictions Used to Impeach Neal.
1. Additional Background.
The prosecution indicated before trial that if Neal elected to testify, it
would seek to impeach her credibility with two prior felony convictions. The
first, a 2011 perjury conviction, is not at issue in this appeal. The second was
a 2015 conviction for felony grand theft (§ 487, subd. (a)) in connection with
stealing from two grocery stores. Neal argued both that the trial court should
exclude the convictions (an argument she does not renew on appeal) and that
the court should sanitize the convictions. The court ruled that the prosecutor
could use both convictions for impeachment purposes. As for the perjury
conviction, the court ruled that it be “sanitized” so that it would be referred to
only as “a felony conviction involving moral turpitude.” And as for the felony
grand theft conviction, the trial court declined to identify it only as a felony of
moral turpitude because, it reasoned, “the phrase ‘felony grand theft’ is [not]
so inherently prejudicial that it would require sanitizing it to be fair to the
defense.”
Relying on People v. Dalton (2019) 7 Cal.5th 166 (Dalton), Neal’s
attorney asked that she be allowed to provide more information regarding the
grand theft conviction to minimize the risk the conviction would be used as
“impermissible . . . propensity evidence.” Counsel wanted to explain that the
prior theft was of a store and thus was distinguishable from the current
charged crimes that involved violence. She represented in a letter brief that
the defense did “not intend to elicit a protracted version of the events”
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underlying the conviction but that she was “permitted to mitigate the assault
on her credibility by providing truthful evidence supported by the police
reports regarding the nature of the offenses.” The trial court ruled that it
would not allow either side to provide facts behind either conviction. It
stated that allowing such facts was “not the law” and that “it [could] confuse
the jury” or “invite[] a response which requires more evidence and more
witnesses.”
On direct examination, Neal confirmed that she had been convicted in
2011 of felony for a crime involving moral turpitude, as well as in 2015 for
felony grand theft. The prosecutor also asked about the convictions at the
start of cross-examination. During his closing argument, the prosecutor
stated, “We know that the defendant has a 2011 felony conviction involving
moral turpitude. We know that she has a 2015 felony conviction for grand
theft, both out of San Mateo County.” The prosecutor emphasized the
convictions again during rebuttal in discussing the credibility of the victim
versus Neal, stating, “We have no reason to believe that [the victim] was not
trying to tell . . . the truth as she saw it, that she was not trying to be honest
with you. Defendant has a moral turpitude conviction. She has a conviction
for violating Penal Code Section 487, Grand Theft. She admitted to you on
the stand she was lying. Those are all things you can use to assess
credibility.”
Jurors were instructed under CALCRIM No. 316 that if they found a
witness had been convicted of a felony, they “may consider that fact only in
evaluating the credibility of the witness’s testimony” and that they could not
“use evidence of the defendant’s felony convictions to conclude the defendant
is a person of bad character, or that the defendant has a propensity to commit
crimes.” (Italics added.)
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2. Analysis.
Neal argues that the trial court abused its discretion when it denied
her request to offer testimony about her prior grand theft conviction to show
the conviction was for nonviolent theft from two grocery stores. (People v.
Lightsey (2012) 54 Cal.4th 668, 714 [trial court has broad power to control
presentation of impeachment evidence].) We are not persuaded.
True enough, the Supreme Court recently held that “admission of
relevant evidence of the circumstances underlying a felony conviction is no
longer generally barred in criminal cases.” (Dalton, supra, 7 Cal.5th at
p. 213.) That is because under the “Truth-in-Evidence” amendment enacted
by Proposition 8 in June 1982 (Cal. Const., art. I, § 28, subd. (f)(2)), “relevant
evidence shall not be excluded in any criminal proceeding.” (See Dalton, at
p. 213.) In Dalton, the defense was permitted to impeach a witness with
12 California burglary convictions but was not allowed to provide the
circumstances underlying those convictions to show the witness had a history
of being manipulative and a conman. (Id. at pp. 210, 213.) The Supreme
Court stressed that Proposition 8 includes no exception that would exclude
evidence where it relates to a witness’s conduct and is offered to attack or
support the witness’s credibility. (Dalton, at p. 214.) But the court also
emphasized that trial courts retain discretion under Evidence Code
section 352 to exclude evidence where its probative value is substantially
outweighed by the probability its admission will require undue consumption
of time, create substantial danger of undue prejudice, confuse the issues, or
mislead the jury. (Dalton, at p. 214.) Although the trial court in Dalton may
have been unaware it had discretion to admit circumstances underlying a
previous conviction, the Supreme Court held that any error in limiting cross-
examination was harmless because the additional evidence would not have
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cast the witness’s credibility in a “significantly different light.” (Id. at
pp. 213–215.)
Neal claims the trial court’s stated concern was “unwarranted” that
presenting more information about the conviction would require more
evidence and additional witnesses (and thus necessitate undue consumption
of time, Evid. Code, § 352, subd. (a)). We are not persuaded. Counsel
apparently had information about the grand theft conviction from “the
charging document for that offense” and “police reports.” Counsel represents
that additional evidence was needed “to show the jury that it was a crime of
need rather than one of malice.” But the prosecutor was not obligated to
accept that characterization of the offense and may very well have offered
additional evidence had Neal been allowed to testify as requested, even if the
prosecutor did not say so when the trial court was denying Neal’s request.
In any event, we agree with the trial court that there was a risk the
evidence would confuse the jury. (Evid. Code, § 352, subd. (b).) As the jury
was instructed, the conviction was to be used only for impeachment purposes
and not as proof that Neal had a propensity to commit crimes. She now
contends it was important that jurors have a clear understanding of what her
conviction entailed. (E.g., People v Kane (1946) 27 Cal.2d 693, 698–699
[important to instruct on both robbery and grand theft when both crimes at
issue because there is a “somewhat fine[] distinction” between the two].) But
the only information the jury needed was that they could use the prior
conviction for impeachment purposes, and having additional information
about the facts underlying the case was not relevant to that determination.
Even if we were to assume that the trial court erred, any such error
was harmless. Like the proposed testimony in Dalton, further information
about Neal’s prior conviction was not likely to cast Neal’s credibility in a
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“significantly different light.” (Dalton, supra, 7 Cal.5th at p. 215.) In arguing
that she was prejudiced, Neal raises the same issues we already have
rejected.
Finally, we reject Neal’s argument that the alleged errors she identifies
require reversal due to their cumulative prejudice.
III.
DISPOSITION
The order granting Neal probation is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
People v. Neal A159400
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