P. v. Shephard
Filed 5/22/06 P. v. Shephard CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY SHEPHARD, Defendant and Appellant. | D046147 (Super. Ct. No. SCD175727) |
In re MICHAEL ANTHONY SHEPHARD on Habeas Corpus. | D047699 (San Diego County Super. Ct. No. SCD175727) |
APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge, and petition for writ of habeas corpus. Judgment is reversed and remanded; the petition is dismissed.
I.
INTRODUCTION
The People charged Michael Anthony Shephard and codefendant, Antoine Davis,[1] with robbing two women, Jamila K. (Jamila) and April J. (April), and kidnapping and sexually assaulting April. The People alleged that Shephard raped April, while acting in concert (Pen. Code,[2] §§ 261, subd. (a)(2), 264.1) (count 1); forced April to participate in an act of oral copulation (§ 288a, subd. (c)(2)) (count 2); kidnapped April for robbery (§ 209, subd. (b)(1)) (count 3); robbed April (§ 211) (count 4); robbed Jamila (§ 211) (count 5); and conspired to commit a robbery (§§ 182, subd. (a)(1), 211) (count 6). The jury found Shephard guilty as charged on counts 1, 4, and 6, and guilty of the lesser included offense of kidnapping on count 3. The jury found Shephard not guilty on counts 2 and 5, oral copulation of April and robbery of Jamila. The trial court sentenced Shephard to 30 years to life in prison.
On appeal, Shephard claims the trial court erred in allowing Davis's attorney, Pamela Lacher, and the prosecutor to extensively cross-examine him for impeachment purposes about two allegations of prior sexual misconduct for which Shephard was never convicted. Shephard claims the questioning constituted improper impeachment that exceeded the scope of direct examination and involved a collateral matter. Further, Shephard contends that any probative value of the testimony at issue was substantially outweighed by the likelihood of unfair prejudice because the allegations pertained to sex offenses similar to those charged, and there was no evidence that the prior allegations were true. Finally, Shephard claims the trial court's error was unfairly prejudicial in that the jury is likely to have considered the evidence for the purpose of establishing Shephard's propensity to commit sex offenses--a purpose for which the court had determined the evidence was inadmissible pursuant to Evidence Code section 352. Shephard asserts that it is particularly likely that the jury considered the evidence for this improper purpose in view of the fact that the jury was never instructed that the evidence could be considered only for impeachment purposes.
We conclude that the trial court improperly allowed Attorney Lacher and the prosecutor to cross-examine Shephard regarding the allegations of prior sexual misconduct. First, the trial court erred in permitting extensive cross-examination regarding the particular circumstances of the prior allegations, which went far beyond any possible probative value of the evidence for impeachment purposes. In addition, the trial court abused its discretion under Evidence Code section 352 in allowing cross-examination regarding the allegations of prior sexual misconduct for the purpose of impeachment, since the evidence had little or no impeachment value, and was almost certain to be extremely prejudicial. With regard to prejudice, the evidence against Shephard in this case was not overwhelming, and the jury clearly did not believe all of April's testimony since it acquitted Shephard of forcing her to orally copulate him, which she testified he had done. In view of the highly prejudicial nature of the evidence of allegations of prior sexual misconduct, the emphasis Attorney Lacher and the prosecutor placed on this evidence in closing argument, and the absence of any instruction limiting the jury's consideration of the inflammatory evidence, we cannot conclude that the error in permitting this cross-examination was harmless. Accordingly, we reverse the judgment.[3]
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's case-in-chief
1. The robbery, kidnapping, and sexual assault
On June 23, 2003, Jamila was in San Diego visiting her friend April, who was stationed in San Diego while serving in the Coast Guard. At approximately 11:00 p.m. that evening, after seeing a movie at Horton Plaza in downtown San Diego, Jamila and April were walking toward a nearby trolley station. As they walked, Shephard drove his red BMW convertible up next to them. Davis was in the front passenger seat. Shephard asked the two women what they were doing and whether they wanted to hang out with Shephard and Davis. Jamila tried to " shoo them off." Shephard continued to drive in the direction in which Jamila and April were walking for about a block, and stopped approximately one block ahead of them.
Davis got out of the car and walked back toward the women. When he was approximately 10 feet from the back of the car and an arm's length away from the women, Davis held a gun close to his side and said, " Check this out. This is a robbery." Davis directed Jamila and April to walk behind a van parked in a nearby parking lot. The van was approximately 15 to 20 feet from where Davis had initially approached them. Davis asked them for their money. Jamila gave Davis $40, but April did not have any money. Davis threatened to search them to see if they were hiding money. Sensing that Davis was angry that she had no money, and because he threatened to search her, April suggested that she could get money from an ATM.
Davis accepted April's offer to withdraw money from an ATM. He told Jamila not to move and told her that they would be right back. Davis followed April while she walked to the BMW. As April started to get into the back seat, one of the men told her to get in the front seat.[4] Davis got into the back seat and Shephard remained in the driver's seat. Shephard drove the group past several ATM machines. When April asked where they were going, Davis told her that everything would be okay and to be quiet and stop asking questions.
After three to five minutes of driving, Shephard stopped in an alley near a bank, and Shephard, Davis and April got out of the car. The men whispered to each other. Shephard checked April's pockets and the men took her backpack. Davis and April went to the ATM and discovered that it was out of service. Davis and April then walked back to the car and got in, as did Shephard. Shephard said that he knew where there was another ATM.
Shephard drove to a credit union that had an ATM. April testified that as they were riding in the car, Davis removed her cellular telephone from her backpack and placed a call during which he said, " Hey, I'm going to have that money for you tonight." During the drive, Shephard asked about April's past sexual history with men. When they arrived at the credit union, Shephard parked the car and told April that Davis wanted her to perform oral sex on him. April responded that she would do whatever she had to do in order to get back to Jamila. April climbed into the back seat with Davis.
When April got into the back seat, Davis pulled down his pants and exposed himself. April testified that she told Davis and Shephard that she did not know what she was doing. Shephard responded by telling her to use her lips. April orally copulated Davis. April testified that while she was sitting next to Davis in the backseat, she orally copulated Shephard who was between the two front seats, facing the backseat.
April testified that at this point, Shephard got out of the car and pulled her pants down. She said that as he was standing outside the car, he placed his penis in her vagina from behind while she was on her knees on the backseat orally copulating Davis. April testified that Shephard kept his penis inside of her for between 30 seconds and a minute. He then went to the trunk, retrieved either a shirt or towel, and wiped between her legs. April did not know whether or not Shephard had ejaculated. She testified that Davis had not.
April pulled up her pants, walked to the ATM and withdrew $20, which was all she could withdraw because she had only $22 in her account. She gave the money to one of the men and got back into the car. After Shephard had driven a short distance, Davis told April to get out of the car.
Approximately 45 minutes after the initial encounter with the two men, Jamila went to a nearby bar and called 911. During the 911 call, Jamila reported the robbery and April's abduction, and described the men and the BMW. A tape of the 911 call was played for the jury at trial. Jamila explained that she had not contacted police sooner because she feared that the men would harm April if they returned and Jamila was not where they had left her.
After she was let out of the car, April saw Shannon Perkins and her boyfriend in front of Perkins's residence and asked them if she could use their telephone. April told Perkins and her boyfriend that she had been raped and robbed, and Perkins called 911. The police, who had already received Jamila's call, responded to Perkins's call within minutes.
2. The investigation
San Diego Police Officers Roger Stonier and Jose Laguda responded to the 911 call. The officers told April that they were going to drive her to the locations where the events of that evening had taken place. April directed the officers to the credit union and the bank where Shephard and Davis had taken her, as well as the parking lot where the incident had begun. At the credit union, April directed the officers' attention to a cigarette butt on the ground. The officers retrieved the cigarette butt, which was later determined to have Davis's DNA on it.
The officers took April to the hospital where nurse Marta McDermand performed a sexual assault examination of her. McDermand testified that April's vagina was abraded, which was consistent with April's report of having been raped. McDermand collected swab samples from April's vagina.
Police monitored the activity of April's and Jamila's cellular telephones after the incident. They determined that a call was placed from April's phone to Davis's residence on Lise Avenue. Police also obtained photographs of April and Davis that were taken by a security camera at the bank where April first attempted to obtain cash.
On June 26, 2003, three days after the incident, San Diego Police Detective John Davis drove with his partner, Detective Carter, in an unmarked police car, to the Lise Avenue address. When they arrived at that location, Detective Davis saw a red BMW in the driveway. Two African-American males were standing near the car. After temporarily losing sight of the BMW, Detective Davis saw the car being driven down the street and followed it. When the BMW stopped a short while later, Detectives Davis and Carter detained Shephard, Davis and Shephard's wife. More police officers responded to the scene. The detectives took mouth swab samples from Davis and Shephard, seized a cellular telephone from Davis's pocket, and impounded the BMW. The detectives then released Davis and Shephard.
Police later determined that there was a semen stain in Shephard's BMW, on the floor in front of the front passenger seat. The stain contained Shephard's DNA.
3. Shephard's flight and arrest
On June 27, 2003, San Diego Police Detective Janna Beard determined that the cellular telephone seized from Davis the previous day belonged to either April or Jamila. Police executed a search warrant at Davis's residence and arrested Davis. Five days later, police searched Shephard's residence, but were unable to locate him. That same day, Beard prepared a warrant for Shephard's arrest.
In the ensuing months, Detective Beard attempted to locate Shephard through various means. Beard testified that eventually her contact with the Chicago Police Department " was successful in that Mr. Shephard soon arrived back in California." Beard testified that she first saw Shephard at his preliminary examination in this case, in June 2004.
B. Shephard's testimony regarding the incident
Shephard testified that he knew Davis through his cousin, but that he had spent time with Davis on only a couple of occasions prior to the incident.[5] On the night in question, Shephard encountered Davis in the parking lot of his aunt's apartment complex. Davis asked Shephard for a ride to a woman's house. Davis was holding a bottle of beer, and Shephard could smell alcohol on Davis's breath. Davis told Shephard that he had been smoking marijuana and PCP. Davis also said that he had some marijuana on him. Shephard agreed to give Davis a ride.
Shephard said that as he and Davis were driving downtown, he saw Jamila and April kissing each other. Shephard said to the two women out the car window, " God doesn't like ugly. That's not right." Davis told Shephard to pull over near the women because they had indicated to him with a hand signal that they wanted to buy marijuana. Shephard pulled over and waited in the car.
After Davis got out of the car, Shephard looked in his rear view mirror and saw Davis walking toward the women. Shephard watched in the rear view mirror as the group walked off toward a van. Shephard could not see the group while they were behind the van. Approximately three minutes later, Davis and April returned to the car. Davis told Shephard that they had to go to an ATM. Shephard presumed that they were going to the ATM so that April could obtain money to pay for the marijuana. Shephard said he did not know that Davis was armed or that April was an unwilling passenger.
Shephard drove to an ATM located at 12th and Imperial Avenues. When they arrived at that location, Davis showed Shephard the gun and said, " 'What the fuck are ya' doin?'" and, " 'There's too many police here.'" Davis told Shephard to drive and not to make Davis use the gun. Shephard said he drove Davis and April to the bank and the credit union because he feared that Davis would use the gun if he did not. Davis told Shephard to tell April to " go down on" Davis, and to " suck his dick." Shephard attempted to talk Davis out of the sexual assault, but Davis responded that he was in charge.
Shephard testified that he was sitting in the front seat of the car when April got into the back seat to orally copulate Davis, and that he " just turned around" as that started to occur. Shephard testified that he got out of the car while April orally copulated Davis. He denied that he had undressed and raped April, forced her to orally copulate him, or assisted in the robbery or in April's oral copulation of Davis.[6]
C. Procedural history
In July 2004, the People alleged in an information that Shephard had raped April, while acting in concert (§§ 261, subd. (a)(2), 264.1) (count 1); forced April to participate in an act of oral copulation (§ 288a, subd. (c)(2)) (count 2); kidnapped April for robbery (§ 209, subd. (b)(1)) (count 3); robbed April (§ 211) (count 4); robbed Jamila (§ 211) (count 5); and conspired to commit robbery (§§ 182, subd. (a)(1), 211) (count 6). With respect to all counts, the People alleged that Shephard was vicariously armed with a firearm within the meaning of section 12022, subd. (a)(1). With respect to counts 1 and 2, the People alleged that Shephard had kidnapped April within the meaning of section 667.61.
The jury found Shephard guilty as charged on counts 1, 4, and 6, and guilty of the lesser included offense of kidnapping on count 3. The jury also found true each of the firearm enhancements with respect to the offenses alleged in counts 1, 4, and 6, and with respect to the lesser included offense of kidnapping in count 3. In addition, the jury found true the kidnapping enhancements alleged in count 1. The jury found Shephard not guilty of counts 2 and 5, oral copulation of April and robbery of Jamila.
Shephard filed a motion for a new trial on various grounds, including that the trial court erred in allowing cross-examination pertaining to allegations of prior sexual misconduct. The trial court denied Shephard's motion for a new trial.
The court sentenced Shephard to 25 years to life on count one, plus one year for the companion firearm enhancement, and three years on count 4, plus one year for the firearm enhancement, with the terms to be served consecutively, for a total prison term of 30 years to life. The court stayed the sentences imposed on counts 3 and 6, pursuant to section 654.
Shephard timely appeals.
III.
DISCUSSION
The trial court committed reversible error in allowing Attorney Lacher
and the prosecutor to attempt to impeach Shephard with questions regarding
allegations that he had committed two prior acts of sexual misconduct
A. Procedural background
1. The court's pretrial rulings regarding evidence of allegations of
prior sexual misconduct
In November 2004, at a pretrial hearing, Shephard's counsel informed the court that he and the prosecutor had stipulated that the prosecutor would not seek to admit any evidence pursuant to section Evidence Code 1108[7] and that, based on that stipulation, Shephard's counsel had not filed a motion to exclude such evidence. Shephard's counsel and the court clarified that the People would not be precluded from introducing such evidence if Shephard were to testify in such a manner as to make the evidence relevant for impeachment.
During the same hearing, Attorney Lacher requested that she be allowed to present evidence that Shephard had previously been arrested for a rape, for which he was never charged, and evidence that Shephard had been charged with and acquitted of the misdemeanor offense of molesting a child (§ 647.6). Attorney Lacher admitted that the victim of the alleged rape was unavailable to testify and that she did not have the record of the misdemeanor molestation. Attorney Lacher argued that the evidence was admissible as propensity evidence to prove that Shephard had " been there before, done that before."
Shephard's counsel argued that he had not been provided with necessary discovery regarding the allegations of prior sexual misconduct and that, in any event, the evidence should be excluded pursuant to Evidence Code section 352. The People took the position that the evidence was not probative to exonerate Davis and that the evidence actually strengthened the People's case against him. The People argued that the evidence should be excluded under Evidence Code section 352 because its introduction would consume an undue amount of time.
The court denied Davis's request that he be allowed to introduce evidence of the allegations of prior sexual misconduct. The court ruled that Davis had presented no facts that would establish the admissibility of the evidence, and that, alternatively, even if there were a factual basis, the court would exclude the evidence pursuant to Evidence Code section 352.
2. Shephard's testimony on direct examination
Shephard testified on direct examination that on June 26, 2003, three days after the incident, he and his wife were with Davis in Shephard's BMW, attempting to surreptitiously tape record Davis's statements concerning the incident. Shephard testified that as he stopped the car, police contacted the group. Police officers placed Davis and Shephard in the same police car. Shephard said that he heard a police officer activate a recording device in the trunk of the car and that Shephard and Davis had a conversation in the car. Police returned approximately 10 minutes later and separated Shephard and Davis. A police officer obtained a swab specimen from inside Shephard's mouth before allowing Shephard to leave.
Shephard testified that he knew, as of June 26, that officers were investigating his BMW in connection with the events of June 23. Shephard explained that he did not tell the officers what he knew about the incident because he believed the officers had recorded his conversation with Davis, and that was the reason officers were not taking Shephard and Davis into custody on June 26. Shephard said that he figured that his BMW would be returned to him and that Davis would eventually be arrested. Shephard testified that he provided the officers with his contact information, and that he did not believe police would have any difficulty contacting him after the 26th. Shephard testified that he left town the following day for a number of reasons, including that he feared for his safety and that of his wife because Shephard had told Davis, who is " gang affiliated," that Shephard would " [go] to the police" if Davis did not. In addition, Shephard testified that he left the area because he feared that corrupt police officers might attempt to charge him with an offense he did not commit. Shephard also said that he left town because his wife, who was pregnant, had told him that she would have an abortion if he went to jail.
Shephard explained that he was skeptical that police would believe his version of the events because he had previously been the subject of racial profiling, including an incident in which he was stopped by police while driving and police found drugs that belonged to a passenger. Shephard explained that the police initially told him that he would be free to go if the passenger admitted that the drugs were his, but that after the passenger admitted as much, the police nevertheless arrested Shephard.
3. The trial court's rulings allowing cross-examination of Shephard regarding
the allegations of prior sexual misconduct
During the prosecutor's cross-examination of Shephard, he admitted that he left the San Diego area on June 27, the day after the initial police detention in this case. He initially went to Riverside, California, then to the San Francisco area, and finally left the state. Although Shephard learned in December 2003 that there was a warrant for his arrest, he did not return to California until May 2004. While he was away from San Diego, Shephard used a different name. Shephard testified that he had planned to contact the district attorney's office upon his return to California, but that he was arrested just before he was able to do so.
Attorney Lacher cross-examined Shephard over two court sessions. During her initial cross-examination, Shephard provided the following testimony:
" [Attorney Lacher]: Have you ever been, um, [a] victim of racial profiling when you weren't in the car?
" [Shephard]: Victim of racial profiling when I wasn't in the car?
" [Attorney Lacher]: Yes.
" [Shephard]: Well, not necessarily, no.
" [Attorney Lacher]: What do you mean 'not necessarily'?
" [Shephard]: I mean, have I been harassed or ─ no. No, I don't recall a police officer ever bothering me outside of a car.
" [Attorney Lacher]: So you've never been stopped outside of a car for a crime? Or accused of a crime?
" [Shephard's counsel]: Objection, relevance Your Honor.
" The Court: Sustained."
Shephard also testified in response to cross-examination regarding his decision to leave the area, " I said earlier, before I left California, I knew that [the police] were . . . planning on charging me with some type of crime."
After Attorney Lacher completed a portion of her cross-examination of Shephard, the court dismissed the jury for the evening. Attorney Lacher reiterated her request that she be allowed to " talk about the 1108." Although its not entirely clear from her statements, Attorney Lacher appears to have been requesting that she be allowed to cross-examine Shephard regarding the allegations of prior sexual misconduct, both to impeach Shephard and to establish that Shephard had committed the prior uncharged acts, for purposes of establishing that he had committed the charged offenses. Attorney Lacher argued that Shephard had " opened the door" to discussion of the allegations of prior sexual misconduct by testifying that he had been " a victim of racial profiling in the car." Specifically, she pointed out that one of the occasions on which Shephard had been stopped by the police was related to the investigation of prior sexual misconduct. Attorney Lacher also argued that there was authority holding that it is proper to prove prior uncharged offenses through cross-examination, citing People v. Delgado (1992) 10 Cal.App.4th 1837 (Delgado).
The court responded:
" At the moment, I'm still not planning to do it on my discussion of 352. I don't think that he has opened up his character for it. And it still runs into the issue of the nature of those offenses having been a not guilty verdict, as I recall, and then no charges on the others."
At the beginning of the next court session, prior to Attorney Lacher's resumption of the cross-examination of Shephard, and outside the presence of the jury, Attorney Lacher repeated her request that she be allowed to " ask [Shephard] about the 1108 evidence." Attorney Lacher stated that the Delgado case discussed cross-examination of a witness regarding prior bad acts for the purposes of impeaching the witness's credibility and proving " [Evidence Code section] 1101, [subdivision] (b) evidence. . . ." [8]
The People stated that they had no position on the " Delgado [Evidence Code sections] 1101 [and] 1108 argument . . . ." Shephard's counsel argued that Delgado was not controlling, and that Shephard had not said anything during his direct examination that opened the door in any way to impeachment with evidence of the allegations of prior sexual misconduct. In rebuttal, Attorney Lacher argued that " Delgado is right on point."
The trial court ruled on Attorney Lacher's request as follows:
" The Court: As far the 1108 evidence coming in in your case in chief to establish something, I still don't think it can. [¶] Do I think the door may have been opened a little bit, and you'll have a lot of fun opening it wider on cross-examination? Yes. [¶] If you ask the right questions, do I think that you're going to be able to ask some of the questions concerning his priors? Yes.
" [Attorney Lacher]: Okay.
" The Court: I can't tell you what it is because that would be inappropriate.
" [Attorney Lacher]: Okay. At least that will probably resolve that issue, Your Honor.
" The Court: The only thing I'm going to ask is before you ask the question, would you ask to approach sidebar so we can give [Shephard's counsel] one more shot at explaining why it isn't opened wide enough yet?
" I caught a couple things that raised my eyebrows enough that I'm not surprised you're approaching this, but I see a big difference in terms of impeachment use of it, as opposed to in your case in chief to establish an element." [9]
Later that day, Attorney Lacher resumed her cross-examination of Shephard:
" [Attorney Lacher]: You wanted nothing to do with sex stuff, right?
" [Shephard]: No.
" [Attorney Lacher]: That's not your bag, is it?
" [Shephard]: I didn't want nothing [sic] to do with this entire situation.
" [Attorney Lacher]: That's not my question. [¶] My question is, that's not your bag, is it? You do not go out and do things like that?
" [Shephard]: No, I don't.
" [Attorney Lacher]: That's why you wanted to turn your head when it was all occurring, right?
" [Shephard]: I didn't want nothing to do with this.
" [Attorney Lacher]: You never had that happen to you before when somebody accused you of that?
" [Shephard]: No."
At this point, Attorney Lacher requested a sidebar conference. During the sidebar conference, the following colloquy occurred:
" [Attorney Lacher]: I assume that that question opened the door; he denied ever having been accused of a sex crime.
" [Shephard's counsel]: It's the question, and the response, is vague, Your Honor. There is a whole panoply of civil offenses, 240, 243, working your way all the way down to 288. [¶] The question is so vague as to meaning. He could be charged with kissing somebody against their will. Constitutionally there needs to be some specificity here.
" The Court: I think that's about where she's going to start going. [¶] I'm going to allow her to inquire based upon the detail and circumstances. I need to know ─ first of all, any impeachment has to be based upon 'accused of.' "
The court further explained the purpose for which it was allowing the evidence to be admitted, stating:
" It has to be as to being charged, and knowing that you can get charged, and having to do with a reason to lie, which is the impeachment end of it. [¶] I'm short circuiting the sequence, but that's--so, if you want to go outside of that, and there's an objection, I'm going to be sustaining that.
" [¶] . . . [¶]
" 'Accused of.' That goes to his state of mind; it has to do with knowing that . . . he can get charged. I'm sorry.
" As far as the looking [at Davis's sexual assault of the victim] part, being aware it was going on, that aspect of it, I think you can go into it without going to his state of mind. What you're trying to do, I assume, is to impeach him."
4. Cross-examination regarding the allegations of prior sexual misconduct
After the sidebar conference, Attorney Lacher proceeded to cross-examine Shephard regarding the allegations of prior sexual misconduct:
" [Attorney Lacher]: Now, you indicated that you had never been accused of a similar type of crime; is that correct, or a sex crime?
" [Shephard]: Be more specific.
" [Attorney Lacher]: Have you ever been accused of rape?
" [Shephard]: Yes.
" [Attorney Lacher]: When was that?
" [Shephard]: 2002.
" [Attorney Lacher]: During that time, you weren't accused of molesting somebody at a trolley station?
" [Shephard's counsel]: Objection, Your Honor. The legal definition of molestation and rape are entirely different.
" The Court: Sustained.
" [Attorney Lacher]: Weren't you accused of raping somebody at a trolley station?
" [Shephard]: I was a bus driver; she wanted money from the company. I wasn't charged with that. [¶] I mean, it's ridiculous you even bringing that up.
" [Attorney Lacher]: Weren't you accused of pulling her pants down, her underwear down to her knees, and having her orally copulate you?
" [Shephard]: I don't remember the details of the report.
" [Attorney Lacher]: But you were accused of that crime?
" [Shephard]: I was accused of something of that nature, yes.
" [Attorney Lacher]: That was in 2002?
" [Shephard]: Yes.
" [Attorney Lacher]: In fact, you know what it's like to get accused of a sex crime, right?
" [Shephard]: There [were] no charges. I mean I don't ─
" [Attorney Lacher]: Well, were you accused of it?
" [Shephard]: I was accused, yes.
" [Attorney Lacher]: And, so, in your mind, when this was all going on, you're thinking about what might happen if you get accused of another sex crime?
" [Shephard]: No.
" [Attorney Lacher]: No?
" [Shephard]: No.
" [Attorney Lacher]: It wasn't the only time that you were accused of a sex crime. Wasn't there[] a misdemeanor you went to trial on?
" [Shephard]: Okay.
" [Attorney Lacher]: You got acquitted of that, right?
" [Shephard]: Yes.
" [Attorney Lacher]: But that's the second time. That was the first time you actually got accused of a sex crime against a minor, isn't that true?
" [Shephard]: Yes.
" [Attorney Lacher]: But the details of that are false too?
" [Shephard]: Of course. That's why I got acquitted.
" [Attorney Lacher]: Did they take a mouth swabbing from you in the 2002 case?
" [Shephard]: Yes.
" [Attorney Lacher]: Just like this one, right?
" [Shephard]: I believe so.
" [Attorney Lacher]: So, you know what happens when they take mouth swabbings, don't you?
" [Shephard]: I don't know the details, no.
" [Attorney Lacher]: But you knew that you were at least being looked into as a suspect for something at the time that your mouth swabs were being taken this time around?
" [Shephard]: This time around I knew what was going on. I knew what happened before. I know what happened, yes.
" [Attorney Lacher]: That's why you ran?
" [Shephard]: That's why I ran? No, that's not why I ran."
After brief cross-examination concerning another topic, Attorney Lacher resumed questioning Shephard regarding the allegations of prior sexual misconduct:
" [Attorney Lacher]: You were arrested on two different sex cases, right?
" [Shephard]: Wrong.
" [Attorney Lacher]: You weren't arrested?
" [Shephard]: I was not arrested.
" [Attorney Lacher]: You were just detained, right?
" [Shephard]: I was not even detained. [¶] The case you mentioned in 2002, I wasn't even detained. I volunteered to the give the People what they wanted, DNA, polygraph.
" [Attorney Lacher]: You did a polygraph?
" [Shephard]: Yes, I did.
" [Attorney Lacher]: Didn't you, in fact, cancel the polygraph on more than one occasion and never actually gave it?
" [Shephard]: I had ─
" [Shephard's counsel]: Objection. Relevance, Your Honor.
" The Court: Overruled as to that one question.
" [Shephard]: I did give it.
" [Attorney Lacher]: After what, five times of cancelling it?
" [Shephard]: I had family court, a work schedule.
" [Attorney Lacher]: There was a gun involved in that case too, wasn't there?
" [Shephard]: No there wasn't.
" [Attorney Lacher]: Well, you were accused of using a gun?
" [Shephard]: Yes.
" [Attorney Lacher]: But that wasn't true?
" [Shephard]: Of course not. They didn't press charges.
" [Attorney Lacher]: In that case, were you accused of talking dirty to the victim?
" [Shephard]: I don't remember.
" [Attorney Lacher]: Were you accused of unzipping your pants, removing your penis, and inserting it into her vagina? Do you remember that?
" [Shephard]: I don't remember the details.
" [Attorney Lacher]: Do you remember whether there was any DNA or not?
" [Shephard]: I gave them my DNA.
" [Attorney Lacher]: A mouth swab, right?
" [Shephard]: Yes.
" [Attorney Lacher]: In that crime, the crime you were accused of, the one we were just talking about, that occurred in the late hours, after 11 o'clock; isn't that correct?
" [Shephard]: No it wasn't that late.
" [Attorney Lacher]: What time was it?
" [Shephard]: I think it was around 9:30 p.m."
During redirect examination, Shephard's counsel elicited Shephard's testimony that he had previously been acquitted of a sex offense by a jury and that he had not had to appear in court to answer the 2002 rape allegation.
On recross-examination, the People questioned Shephard about the allegations of prior sexual misconduct. After the People established that Shephard had gone to trial on a sex offense in 1998, and that the jury had not reached a verdict, and that Shephard had been investigated in 2002 for an allegation of rape, the People asked Shephard whether his knowledge that the DNA swabs that were taken in this case could be used in a sex crime investigation had contributed to his decision to leave San Diego. Shephard said it had not. Shephard further testified, " I knew I didn't have any type of sexual relations with this April. I was not concerned."
Attorney Lacher also returned to the allegations of prior sex offenses during her recross-examination of Shephard. After establishing again that police had taken mouth swabs from him before he left San Diego, and that Shephard had not contacted police upon his return to California to explain his version of the events that resulted in the charged offenses, Attorney Lacher asked Shephard the following questions:
" [Attorney Lacher]: You knew you were going to be accused of a sex crime like you previously had been, right?
" [Shephard]: No.
" [Attorney Lacher]: In fact, you're one unlucky dude, aren't you?
" [Shephard]: I don't believe in luck."
5. Closing arguments
During closing arguments, both the prosecutor and Attorney Lacher reminded the jury that Shephard had been accused of committing sex crimes on two prior occasions, and argued that this evidence was relevant to prove Shephard's motive for leaving California after he was contacted by the police during the investigation of the charged offenses.
6. Shephard's motion for a new trial
Shephard filed a motion for a new trial in which he claimed that his testimony on direct examination had not " opened the door" to cross-examination regarding the allegations of prior sexual misconduct, and that the admission of this evidence had been unduly prejudicial. Specifically, Shephard claimed that allowing cross-examination regarding the allegations of prior sexual misconduct violated the corpus deliciti rule, which precludes proving the fact that a crime has been committed solely through the extrajudicial statements of the defendant, because there was no evidence that Shephard had in fact committed the prior acts. Shephard also argued that the evidence was inadmissible under Evidence Code section 352, and that the questions regarding the allegations of prior sexual misconduct were outside the scope of proper cross-examination.
The People argued that cross-examination pertaining to the allegations of prior sexual misconduct had been proper because the allegations were relevant to Shephard's " knowledge" that he could be charged with a sexual offense. Specifically, the People argued that, with respect to the rape allegation, Shephard had consented to providing a mouth swab as part of the investigation, as he had done during the investigation of the charged offenses, just before he left the area. The People maintained that Shephard's knowledge that taking a mouth swab is part of a sex crime investigation was relevant to prove his motive for leaving the area. The People also argued that the evidence of allegations of prior sexual misconduct was relevant to impeach Shephard's testimony that part of the reason he left the jurisdiction during the investigation was because he was skeptical that the criminal justice system would treat him fairly, given his race. The People reasoned that the fact that the allegations of prior sexual misconduct had not resulted in convictions impeached Shephard's claim that he was unlikely to receive a just result when faced with an accusation of sexual assault.
The trial court denied the motion for a new trial, stating in part:
" First of all, as to what everybody keeps calling 1108 evidence, first of all, the motion to admit the 1108 evidence at the beginning was denied. [¶] What happened was that in Mr. Shephard's direct examination, he portrayed himself in particular, one, he didn't want to look at the offense; two he was running because, or he left town because of his concerns about the criminal justice system. [¶] I think there was a third reason as well.
" In his cross examination by [Attorney] Lacher, it basically opened the door as far as impeachment. [¶] Now, this evidence about previous accusations, those were admitted for impeachment, period. I believe rightfully so, and I don't think that that's a basis for a motion for new trial. [¶] There is no requirement for corpus on those. [¶] Mr. Shephard answered the questions that were propounded to him as it might relate to the impeachment end of it, and the jury analyzed everything that was presented in that regard.
" So, as far as the argument on 1108 I think that's a misnomer, number one, and a dangerous misnomer; and number two, it was appropriate impeachment, and I am going to deny the motion on that ground."
B. The trial court erred in permitting cross-examination regarding the allegations
of prior sexual misconduct
Shephard claims the trial court erred in permitting cross-examination regarding the circumstances of the alleged prior sexual misconduct, and that the scope of the cross-examination went far beyond any possible probative value the evidence may have had to impeach him. A trial court's ruling regarding the admissibility of evidence for purposes of impeachment is reviewed for an abuse of discretion. (People v. Davis (1995) 10 Cal.4th 463, 530.)
1. Applicable law
Impeachment evidence is evidence that " calls into question the witness' veracity." (Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, 904.) To impeach a witness is to discredit the witness. (Witkin, Cal. Evid. (4th ed. 2000) Presentation at Trial, § 258, p. 329; see Howard Contracting, Inc. v. G.A. MacDonald Construction Co., Inc. (1998) 71 Cal.App.4th 38, 53 [a " broad definition" of impeach is " 'to dispute, disparage, deny, or contradict' " ].) Evidence Code section 780 provides that a jury may " consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony . . . ." It outlines a number of ways in which a witness may be impeached, including the " nonexistence of any fact" to which the witness has testified. (Id., subd. (i).)
Although a defendant who proclaims that he has never committed a particular bad act in the past may be met with evidence to the contrary (e.g., People v. Crume (1976) 61 Cal.App.3d 803, 811-812, disapproved on another ground by People v. Gaston (1978) 20 Cal.3d 476, 485, fn. 11), it is well established that " it is improper to elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it [citation]." (People v. Mayfield (1997) 14 Cal.4th 668, 748.) This is particularly so where, as here, the trial court has ruled the evidence inadmissible under Evidence Code section 1108, pursuant to Evidence Code section 352. Further, it is improper to cross-examine a witness on collateral matters degrading the witness's character where the witness has not presented evidence of his good character. (See, e.g., People v. Vanderburg (1960)184 Cal.App.2d 33, 39 [reversing conviction where prosecution impeached defense witnesses on collateral matters in an effort to degrade their character].)
" [T]he protection against collateral impeachment degrading character is especially important where a criminal defendant becomes a witness. Irrelevant inquiries about misconduct, criminal or otherwise, are a highly prejudicial means of injecting the defendant's bad character into the case. The cases on this point are numerous." (Witkin, Cal. Evid., supra, § 351, pp. 437, 438; see e.g. People v. Sims (1958) 165 Cal.App.2d 108, 115 [concluding trial court erred in permitting prosecution to present evidence of defendant's prior arrests that defendant had denied, on recross-examination because it was " error to compel the defendant to be a witness for the state and against himself, and to allow his own testimony to be used as the foundation for the impeaching testimony employed against him" ]; People v. Reyes (1976) 62 Cal.App.3d 53, 62 [" [h]ad this testimony [regarding defendant's prior conviction] been elicited by the prosecutor on cross-examination, the impeaching evidence of defendant's prior misdemeanor conviction for bookmaking would have been inadmissible by virtue of the rule that a cross-examiner may not elicit testimony on a collateral matter for the purpose of contradicting that testimony or proving it to be false" ].)
In People v. Epps (1981) 122 Cal.App.3d 691 (Epps), the defendant was accused of molesting a minor named Linda. On direct examination, the defendant denied that he had kissed Linda. (Id. at p. 696.) On cross-examination, the prosecutor was allowed to ask whether the defendant had ever kissed a different minor named Sandra. (Ibid.)
After the defendant denied having done so, the prosecution presented evidence that the defendant had kissed Sandra. (Ibid.) On appeal, this court concluded that the trial court had committed reversible error by allowing the improper impeachment:
" Epps made only a specific denial of kissing Linda. He did not make a blanket denial which could provide a basis for impeachment by extrinsic evidence of his kissing Sandra. Additionally, as was said in People v. St. Andrew (1980) 101 Cal.App.3d 450, involving similar impeachment: 'A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be thereafter contradicted.' (Id., at p. 461.) The trial court erred in admitting this testimony." (Epps, supra, 122 Cal.App.3d at p. 696.)
2. Allowing cross-examination regarding the allegations of prior sexual
misconduct to impeach Shephard was improper
Shephard did not testify on direct examination that he had never previously been accused of a crime, or specifically, of sexual misconduct. He did not in any way broach the subject of prior allegations of sexual misconduct against him. Yet, in posing questions to Shephard on cross-examination, Attorney Lacher mischaracterized his testimony in a manner that implied that he had denied having previously been accused of committing any crime and in particular, sexual misconduct, and then proceeded to " impeach" him with questions about the allegations of prior uncharged sexual misconduct. Because Shephard had not raised the subject during his direct examination, questions on cross-examination as to whether he had previously been accused of any other crimes, and specifically, sexual misconduct, were not relevant to establish the " nonexistence of a fact" testified to by Shephard, and thus, did not constitute proper impeachment.[10]
The trial court properly sustained an objection on the first day of Attorney Lacher's cross-examination of Shephard to the questions, " So you've never been stopped outside of a car for a crime? Or accused of a crime?" The court tentatively reaffirmed this ruling at the end of the first day of Shephard's cross-examination in rejecting Attorney Lacher's argument that Shephard's testimony regarding his having been the victim of racial profiling had " opened the door" to cross-examination pertaining to the allegations of prior sexual misconduct. However, during the next court session, the court observed that it might be proper to cross-examine Shephard regarding the allegations of prior sexual misconduct for impeachment purposes, because " the door may have been opened a little bit" by Shephard's testimony. There is no reasoned explanation for the court's ruling in either the argument Attorney Lacher offered in support of her request that she be allowed to conduct such cross-examination (see part III.A.3, ante), or in the case she cited to the trial court, Delgado, supra, 10 Cal.App.4th 1837. The Delgado case discusses cross-examination of a defendant for purposes of proving a prior bad act for substantive purposes under Evidence Code section 1101, not cross-examination of a defendant regarding a prior bad act for impeachment. (Delgado, supra, at pp. 1843-1846.) There is sim
