PEOPLE v. HIGGINS







Filed 1/13/11

CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND HIGGINS, Defendant and Appellant.

D055649 (Super. Ct. No. SCD212359)

APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. Reversed.
Charles M. Sevilla for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.

I.
INTRODUCTION
A jury convicted defendant Raymond Higgins of burglary of an inhabited dwelling, assault with a deadly weapon or by means likely to cause great bodily injury, and assault with a firearm. Higgins's convictions stem from an incident in which Higgins broke into a neighbor's home with two guns in his possession.
On appeal, Higgins challenges his convictions on a number of grounds, including: (1) that he was not provided with sufficient notice that the prosecutor was going to rely on false imprisonment as a predicate crime for the burglary charge; (2) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on the defense of mistake of fact; (3) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on a number of offenses that Higgins maintains are lesser included offenses to the charged crimes, including simple assault, misdemeanor false imprisonment, and brandishing a weapon; (4) that the prosecutor engaged in a number of instances of improper conduct, any one of which, he contends, requires reversal; and (5) that the prosecutor's pattern of improper conduct resulted in cumulative prejudice that requires reversal.
We conclude that Higgins's convictions must be reversed on the ground that the prosecutor, Deputy District Attorney Christopher M. Lawson, engaged in a pervasive pattern of misconduct that rendered the trial fundamentally unfair.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
Laurie Arnold and Higgins had been neighbors for approximately 15 years. Higgins lived with his wife and daughter a few houses down from Arnold. Arnold lived with her daughter Alana, who was 19 years old, and her son Jamie, who was 15 years old. Alana and Higgins's daughter had been "very good friends" when they were younger. The relationship between Arnold and the Higgins family had been sufficiently close that Arnold had memorized the Higgins family's home telephone number.
Arnold divorced her husband approximately four years prior to the incident at issue in this case. After Arnold and her husband separated, her son Jamie went through "tough times" and started getting into trouble. Arnold had asked Higgins to keep Jamie "on course." Arnold did not know whether Jamie had been spending time with Higgins recently, but over the prior year, the only contact she had had with Higgins was exchanging casual greetings.
On May 30, 2008, at approximately 9:00 p.m., Arnold and her boyfriend, Eric Wuerfel, were upstairs in Arnold's home when the doorbell rang. Arnold and Wuerfel decided to ignore the doorbell. A short time later, the front door began "rattling" and/or "violently shak[ing]." Wuerfel went downstairs to see who was at the door. When he got to the door, no one was there.
While Wuerfel was downstairs, he heard Arnold's dog barking in the garage. Wuerfel eventually came into contact with Higgins, who was in Arnold's garage. When Wuerfel encountered Higgins, he asked Higgins who he was. Higgins replied, "I'm a neighbor. I'm a friend of Laurie's." Wuerfel introduced himself to Higgins and continued to ask Higgins to identify himself, which Higgins eventually did. Higgins said that he wanted to talk to Arnold. Wuerfel told Higgins to stay where he was while Wuerfel went to see whether Arnold wanted to talk to Higgins.
Wuerfel went to the master bedroom, which was on the second floor, and closed the door behind him. Once he was in the bedroom, Wuerfel told Arnold that "Ray" was downstairs and that he wanted to talk to her. While Wuerfel and Arnold were discussing Higgins's behavior, they heard Higgins outside the bedroom door saying, "Laurie, Eric. . . . I just want to talk to you." Arnold opened the bedroom door and saw Higgins on the stairs, talking to Arnold's dog. Higgins repeatedly said that he "just want[ed] to talk to Laurie," and mentioned something about Jamie and his friends. Higgins gave no other reason for being present in Arnold's home.
Arnold told Higgins that he was "freaking [them] out," and demanded that he leave. Arnold escorted Higgins downstairs and out of the house. Once Higgins was outside, Arnold closed the front door and locked it.
After Arnold locked the front door, she and Wuerfel locked all of the doors to the house and set the alarm. Wuerfel and Arnold then returned to the bedroom. Shortly after they returned to the bedroom, the doorbell rang. Arnold and Wuerfel believed that it was Higgins ringing the doorbell. Arnold looked out the peephole and saw Higgins standing outside the front door. Although Arnold did not see a gun, she knew that Higgins owned guns. Arnold said to Wuerfel, "I think he's got a gun." Higgins said, "Laurie, Eric, open the door. I just want to talk to you." Wuerfel told Higgins to leave, and warned him that if he did not leave, they would call the police or Higgins's wife. At this point, Higgins began to shake the door violently.
Arnold and Wuerfel ran upstairs to the master bedroom. When they reached the bedroom, Arnold called 911. While Arnold was talking to the 911 operator, the house alarm went off, and a verbal warning indicated that a door in the dining room had been opened. Arnold and Wuerfel could hear Higgins walking around the house, repeatedly saying, "Laurie, Eric, I just want to talk to you." Wuerfel pushed a couch up against the master bedroom doors, to keep Higgins out. Higgins hit the doors "really hard," pushing both Wuerfel and the couch back about a foot. Wuerfel pushed the couch back to the doors and tried to brace himself against the doors again.
Higgins continued to try to force open the doors to the master bedroom. At one point, Wuerfel saw what appeared to be the barrel of a gun poking through an opening between the two doors. Wuerfel shouted, "He's got a gun," but then said, "Maybe it's a crowbar." After getting a closer look at the object, Wuerfel could see that it was, in fact, a gun barrel. Wuerfel again shouted, "He's got a gun." In response, Higgins asked, "You're not afraid of this little thing, are you‌"^[1]
At one point, Arnold handed the telephone to Wuerfel while she used her cell phone to call Higgins's wife. When Higgins's wife answered the call, Arnold said something like, "Ray's here. I think he has a gun. I think he's going to kill me. Why would he kill me‌"
Much of Arnold and Wuerfel's encounter with Higgins was audible on the recording of Arnold's 911 call. Arnold told the 911 operator that she thought Higgins must be drunk, and that there was no history of violence between them. Arnold punched out a screen from her bathroom window, thinking that she might have to jump. At this point, the police arrived.
When San Diego Police Officer Thomas Kowalczyk arrived at Arnold's residence, he saw Higgins running away from Arnold's house, through an adjacent yard. Higgins appeared to be running in a straight line with no difficulty. Kowalczyk drew his firearm and ordered Higgins to get down on the ground. Higgins initially continued running, but then put up his hands and turned around. Kowalczyk again ordered Higgins to get on the ground, and told Higgins that he knew Higgins was armed. Higgins responded, "Yeah, whatever," and turned away from Kowalczyk. Because Higgins had not complied with Kowalczyk's order to get on the ground, Kowalczyk struck Higgins with the butt of his shotgun, causing Higgins to fall to the ground, on his back. Kowalczyk held Higgins at gunpoint until other police officers arrived.
After Higgins was placed under arrest, police officers found a loaded .45-caliber semiautomatic pistol and a loaded .38-caliber revolver in his right front pants pocket. In Higgins's left front pants pocket, officers found two speed loaders and five loose rounds of .38-caliber ammunition.
2. The defense
a. Higgins's Testimony
Higgins testified that he graduated from the Naval Academy in Annapolis, Maryland in 1977 and had twice been awarded the Navy's humanitarian medal for his conduct during the Vietnam War. In 1979, while Higgins was deployed, his younger sister committed suicide. He was not permitted to return home for her funeral.
According to Higgins, after Arnold and her husband divorced, her son Jamie became "unglued." He started using drugs and was getting into trouble for fighting. Higgins had talked with Arnold about Jamie's issues, and had tried to take Jamie "under [his] wing."
Two months before the incident at issue, Sean Canepa, the 19-year-old best friend of Higgins's daughter, died from a drug overdose. The young man had spent a great deal of time with Higgins's family, and had his own room in the Higgins home. Higgins "broke down sobbing" when he learned of Canepa's death. Higgins testified that after Canepa's death, he started drinking heavily.
On May 30, 2008, Higgins, who owned a money management business, worked in his home office until after the stock market closed. At approximately 2:00 p.m., Higgins began drinking vodka to celebrate having had a good business day, and also to celebrate his mother's birthday. As Higgins drank, he prepared his guns and range bag for a trip to the firing range that he was planning to take that weekend. Higgins said that he put the two handguns in his pocket because he intended to work on them later. According to Higgins, the two guns "were in and out of [his] pockets a couple of times in the course of the day."
Higgins drank a significant amount of alcohol over the rest of that day, including approximately half a bottle of vodka, a bottle of red wine, and part of a bottle of white wine. He later went to a nearby sushi restaurant, where he drank three or four bottles of sake.
Upon returning home, Higgins saw some of Jamie's friends standing in the street, and stopped briefly to talk with them. Higgins believed that these teenagers were "bad kids." Higgins "started thinking about Jamie [¶] . . . [and became] obsessed with going down to [Arnold's] house and talking to [Arnold] about Jamie."
The next thing that Higgins remembered was standing in a garage talking to Wuerfel. He also remembered lying on the stairs in Arnold's house, talking to Arnold's dog.
Higgins recalled that he had gone home sometime after these events. Higgins's wife was at home when he returned, but at some point, she left to go to McDonald's. After his wife left, Higgins went back to the Arnold house. He remembered going through a side gate and opening a sliding glass door which, according to Higgins, was unlocked. Higgins recalled walking through Arnold's home, calling for Arnold and Wuerfel. He did not recall hearing the house alarm go off.
The next thing that Higgins remembered was being at the top of the stairs in Arnold's home, and pushing on the bedroom doors to try to get them to open. He leaned against the doors and could hear Arnold inside the bedroom. Higgins realized that there was something in his pocket. When he removed the item, he saw that it was his .38‑caliber revolver. Higgins stuck the barrel of the gun between the two bedroom doors in an effort to pry them open. When Higgins heard someone yell, "He's got a gun," he had a "moment of clarity" and thought to himself, "What am I doing here‌" He immediately left Arnold's house. Higgins next remembered seeing flashing lights, and his wife handing him some shoes.
b. Dr. Kalish's Testimony
Mark Kalish, M.D., a psychiatrist, testified as an expert for the defense. Dr. Kalish testified that people who are depressed may self-medicate with alcohol. In order to evaluate Higgins's mental state, Dr. Kalish had interviewed Higgins, reviewed the police reports concerning the incident, read transcripts of prior hearings in the case, listened to the 911 audiotape, and reviewed the audiotape and videotapes of Higgins's interviews with police. Dr. Kalish diagnosed Higgins as suffering from alcoholism and a recurring depressive disorder.
Dr. Kalish discussed a number of tragic events that he believed had exacerbated Higgins's disorder, including an incident during the Vietnam War, and Higgins's sister's suicide. According to Dr. Kalish, Sean Canepa's recent death also contributed to Higgins's condition. Dr. Kalish stated that in his opinion, Higgins's conduct at the Arnold house on the night of May 30, 2008, was consistent with that of a person who was depressed and who had self-medicated with alcohol.
B. Procedural background
On November 13, 2008, the San Diego County District Attorney filed an amended information charging Higgins with burglary of an inhabited dwelling (§§ 459, 460; count 1); assault with a deadly weapon or by means likely to cause great bodily injury (§ 245, subd. (a)(1); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). As to counts 1 and 2, the information also alleged that Higgins personally used a firearm in the commission of the charged offenses (§ 12022.5, subd. (a)).
A jury trial began on November 10, 2008. The jury began deliberating on November 18. The jury deliberated on November 19 and for most of the day on November 20, before reporting to the trial court that it was hopelessly deadlocked. The trial court declared a mistrial.
A second jury was impaneled on June 25, 2009. The second jury began deliberating on the afternoon of July 7, 2009. After deliberating all day on July 8, the second jury returned guilty verdicts on all three counts, and found true the allegations of personal use of a firearm.
The trial court sentenced Higgins to five years in state prison.
Higgins filed a timely notice of appeal.
III.
DISCUSSION
Higgins argues that the prosecutor engaged in a pervasive pattern of misconduct throughout the trial, and that this conduct deprived him of his constitutional right to a fair trial, under both the state and federal Constitutions. Higgins asserts that these instances of misconduct, either alone or in combination, require reversal of the guilty verdicts.
We agree.
In considering the effect of the prosecutor's conduct, we are mindful that "[p]rosecutors . . . are held to an elevated standard of conduct. 'It is the duty of every member of the bar to "maintain the respect due to the courts" and to "abstain from all offensive personality." (Bus. & Prof. Code, § 6068, subds. (b) and (f).) A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. [Citation.] As the United States Supreme Court has explained, the prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." [Citation.]' " (People v. Hill (1998) 17 Cal.4th 800, 819-820 (Hill).)
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.[^[2]] [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citation.]" (People v. Riggs (2008) 44 Cal.4th 248, 298.)
"When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' [Citation.]" (People v. Friend (2009) 47 Cal.4th 1, 29.)
A. The challenged conduct
Higgins maintains that the prosecutor posed improper questions throughout the trial, often repeatedly and despite objection, and made improper and inflammatory remarks during closing argument, all of which were intended to undermine Higgins's credibility, as well as the integrity of defense counsel and the defense expert.
1. Impugning defense counsel and the defense expert
Higgins contends that the prosecutor posed a number of improper questions and made a series of improper statements attacking the integrity of Higgins's defense attorney and his defense expert, Dr. Kalish, and that this conduct caused unfair prejudice to Higgins.
a. Mentioning that defense counsel and Dr. Kalish had worked
together on a prior "rape trial" and asserting that they had
"attacked" the rape victim in that case

On cross-examination of Dr. Kalish, the prosecutor questioned Dr. Kalish about the concept of "back filling," which Dr. Kalish agreed was a process that individuals who have gotten so drunk that they blacked out use to attempt to reconstruct past events. According to Dr. Kalish, these individuals "go to other sources and try to piece together the memory which [they themselves] do not have." During this line of questioning, the following colloquy occurred:
"Q. Well, you've testified for Mr. Warwick[^[3]] before in a rape trial where you talked about the victim —

"Mr. Warwick: Objection. May we approach the bench, Your Honor‌

"The Court: Overruled.

"By Mr. Lawson: [¶] . . . You've testified for Mr. Warwick several times, before, haven't you‌

"A. Yes.

"Q. And in this particular case, your testimony is you don't remember how many billable hours you acquired up to this point‌

"A. Correct.

"Q. You don't keep a log of that‌

"A. Sure. At the office.

"Q. Have you ever been cross-examined about how much you've been paid for your testimony before‌

"A. I'm sure.

"Q. Don't you think that that might be an important thing to come armed to court with‌

"A. Not particularly.

"Q. When you testified in this previous trial, Mr. Warwick asked you, 'When someone has a failure to lay down memory tapes'—that would be the amnesia, right‌

"A. Right.

"Q. -- 'It's predictable that all people will back fill that lack of memory.' [¶] Your answer, 'Pretty much.' [¶] Does that sound[] like something you would say‌

"A. It's what I said here.

"Q. 'And is it predictable that all people will back fill that memory in a fashion that's favorable to them‌' [¶] 'Answer: More often than not.'

"A. Which is exactly what I said here.

"Q. Almost.

"A. I said, 'Pretty much.'

"Q. Okay. Well, back filling is not a malicious thing, right‌

"A. No.

"Q. It's just something that is natural to do. When you get that drunk and you want to know basically what happened, you're going to back fill those memories.

"A. Hold on a second. The back filling is a consequence of having the amnesia. When people don't remember things, it's uncomfortable. We want to know what happened. And the natural thing that people do is they ask around, they look at things and they try to piece together, you know, what happened. And that process is called back filling.

"Q. I think your terminology was they want to make themselves feel right about what happened.

"A. Okay. Isn't that what I just said‌ It's uncomfortable. They want to figure out what happened.

"Q. And they want to make themselves feel right about what happened. Not just figure out what happened, but make themselves feel better about the actions they did.

"A. They want to understand it."

The prosecutor asked Dr. Kalish how long his interview with Higgins had lasted, and then moved on to question Dr. Kalish about other topics.
The prosecutor's reference to Dr. Kalish having testified for Higgins's defense counsel in a "rape trial" was clearly improper. The question served only to provide the jury with the irrelevant and potentially inflammatory information that Dr. Kalish and Higgins's attorney had worked together in the past to defend someone accused of rape—a fact that could have caused the jurors to regard both Higgins's counsel and Dr. Kalish in an unfavorable light. The potential prejudice from the prosecutor's mentioning the rape trial was exacerbated by the fact that the trial court overruled defense counsel's objection to the remark.
The prejudice from the prosecutor's initial reference to the prior rape trial was amplified by an extremely prejudicial remark that the prosecutor made later in the case. During closing argument, in describing Dr. Kalish and defense counsel's conduct with respect to the victim in the prior case, the prosecutor asserted that Attorney Warwick and Dr. Kalish had "attack[ed] a victim in a rape trial" regarding back filling. (Italics added.) The prosecutor made this allegation and then proceeded to argue, "And [Dr. Kalish's] words were, 'More often than not, people do it in a favorable way, though.' " The prosecutor continued, "And I asked him a question, and, no, he did not say it in the same fashion, because it's being spun a different way now. But when I confronted him on it, 'Yeah, that's exactly what I said.' You're the trier of the fact. You heard what he said the first time, and then when I asked him about what he said before when he was talking about that rape by intoxication victim, the one who, according to his opinion, could completely give consent, she was just back filling."
At this point, Attorney Warwick objected. The following colloquy then occurred:
"The Court: Sustained. Ladies and gentlemen, disregard the last comment, please.

"Mr. Warwick: And the earlier comment. He's done it twice in a row now.

"The Court: The earlier comment I think was supported by the evidence. The latter I'm going to strike."

Later that day, outside the presence of the jury, the trial court returned to the issue of the prosecutor's remark about Dr. Kalish and defense counsel "attacking a victim in a rape trial." Recognizing that the prosecutor's comment was irrelevant and that it might constitute prejudicial misconduct, the trial court stated:
"I want to revisit an objection that Mr. Warwick made during Mr. Lawson's opening argument. Mr. Warwick lodged an objection to Mr. Lawson's reference in argument to a statement previously made by Dr. Kalish and admitted by Dr. Kalish to the effect that people tend to back fill their memories in a way that is most favorable to them or that puts themselves in a favorable light. [¶] Mr. Warwick's objection was to the reference made by the prosecutor that this statement was previously made by Dr. Kalish in connection with the defense of a rape case for Mr. Warwick and to attack a victim in a rape trial. I sustained Mr. Warwick's objection.

"I'm mentioning the matter now because I'm going to invite Mr. Warwick to tell me if he wants a further limiting or curative instruction having to do with this issue.

"[¶] . . . [¶]

"It's not relevant, and, indeed, may border on prejudicial misconduct, in my view, however unintended that might have been, to suggest that this occurred in an effort to attack a rape victim. Where it occurred has zero proper relevance before this jury. [¶] It's certainly not proper for a prosecutor to impugn defense counsel where the effect of that impugning is to create some form of prejudice that the defense attorney is engaged in some form of improper conduct by vigorously defending his client. I'm also mindful that sometimes trying to unring the bell tends to ring it again and further emphasizes the point."

Defense counsel reiterated that he believed that the prosecutor's statement that Dr. Kalish and Attorney Warwick had "attack[ed]" a rape victim "was presented in a way that was, arguably, an attempt to inflame the jury against Dr. Kalish," and sought a cautionary instruction from the court telling the jury that it should not consider the prosecutor's remark. After hearing counsel's argument on the issue, the trial court decided to include in its concluding instructions to the jury an instruction directing the jury not to consider the prosecutor's improper comments about the prior rape trial.
The court ultimately provided the jury with the following instruction concerning the prosecutor's comments about Dr. Kalish's prior work with defense counsel in a rape trial:
"At this time I'm going to strike an item or two of evidence and also a statement that was made by Mr. Lawson during his argument. As we know, the arguments of counsel are not evidence; however, I'm going to direct that you not consider these matters in any way in your deliberations.

"There was some evidence that Dr. Kalish testified that in a previous case he had made the statement during testimony in that case that people tend to back fill their memories, and, when they do so, they tend to do it in a way that is favorable to themselves or make themselves look favorable. I'm sure you remember that testimony.

"There also may have been evidence given by Dr. Kalish back when that questioning was occurring to the effect that he made this statement while testifying in the defense of a rape case. Also, as you know, during argument Mr. Lawson referred to that statement. I believe he referred to it twice. I believe once he said it was in defense of a rape case and the other time he said words to the effect that Dr. Kalish had made that statement while they were attacking a rape victim.

"Ladies and gentlemen, any reference, either in Dr. Kalish's testimony or in Mr. Lawson's argument that it was a rape case or a sexual assault case or that it was attacking a rape victim, is stricken. You must treat those things as if they were never said. Please do not consider those references or allow them in any way to affect your deliberations.

"You may consider Dr. Kalish's testimony about the back filling and how it occurs. You may consider the fact that he told you he had been retained by defense counsel, including Mr. Warwick in the past, as he has been retained by prosecuting agencies in the past; however, you must not infer that there was anything improper about the defense of that other case and you must disregard any emotions that might be triggered by the notion of defending a person charged in a sexual assault case.

"The bottom line is, ladies and gentlemen, you need to assess the evidence in this case without any emotions being triggered by the term 'rape case' or 'rape victim.' Can everybody do that‌ Of course you can, and I see all affirmative responses."

" 'A prosecutor is allowed to make vigorous arguments and may even use such epithets as are warranted by the evidence, as long as these arguments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury.' [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1195.) However, "[a] prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.]" (Hill, supra, 17 Cal.4th at p. 832; see also People v. Sandoval (1992) 4 Cal.4th 155, 184 [it is misconduct when a prosecutor in closing argument "denigrat[es] counsel instead of the evidence" because "[p]ersonal attacks on opposing counsel are improper and irrelevant to the issues"].)
" 'An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.' (5 Witkin & Epstein [Cal. Criminal Law (2d ed. (1988)], Trial, § 2914, p. 3570.)" (Hill, supra, at p. 832.)
While the fact that Dr. Kalish had previously worked with defense counsel may have been relevant, and the subject of Dr. Kalish's previous testimony regarding the process of back filling may have been a legitimate area of inquiry, the prosecutor's argument to the jury that Dr. Kalish and defense counsel had "attack[ed] a victim in a rape trial" was inexcusable. The remark was irrelevant and potentially inflammatory, served no legitimate purpose, and unfairly maligned defense counsel and Dr. Kalish. Based on the prosecutor's choice of language, one can only conclude that the prosecutor was attempting to prejudice the jury against defense counsel and the defense expert―and, by association, Higgins.


TO BE CONTINUED AS PART II….

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