Filed 7/11/17 P. v. Orozco-Ramirez CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE ,

Plaintiff and Respondent,

v.

ARTEMIO MISAEL OROZCO-RAMIREZ,

Defendant and Appellant.

F071022

(Fresno Super. Ct. No. F10905182)


OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant/defendant Artemio Misael Octavio Ramirez was charged with committing four felony sexual offenses against M., a nine-year-old girl who lived in the house where he was renting a room from her family: count I, intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a)); count II, oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)); count III, assault with intent to commit rape (§ 261, subd. (a)(2)); and count IV, commission of a lewd act on a child (§ 288, subd. (a)). Counts I and II carried indeterminate terms.
Defendant was arrested after the victim’s family discovered sexually explicit photographs of a naked female on a cell phone which defendant had used. They believed the photographs were of the victim, based on the clothing and the body type. After defendant was arrested, he agreed to give an interview to a detective. He initially denied touching the victim, but then admitted that physical contact occurred with the victim’s body, claimed the victim jumped on him and took the photographs, and denied committing any sexual acts.
What initially appeared to be a relatively straightforward case has returned to this court a second time on what has become a convoluted procedural maze. We must determine whether a constitutional error was harmless beyond a reasonable doubt. In doing so, we must examine the entirety of the record, including the evidence introduced at two trials, the court’s evidentiary rulings at the second trial, defense counsel’s tactical decisions, the instructions given and omitted, and the parties’ arguments before the jury. As we will explain, these considerations lead us to the unavoidable conclusion that the impeachment of defendant’s testimony at his second trial, with prior convictions that were constitutionally invalid, was not harmless beyond a reasonable doubt and requires reversal of his convictions.
Defendant’s first jury trial and convictions for counts III and IV
As we will explain, there were two separate jury trials held on the charges. The victim and defendant testified at both trials. At the first trial, defendant testified and said he never touched the victim. Defendant was impeached with his prior inconsistent statements to the investigating officers; defendant claimed he lied to the detective when he said some physical contact occurred between them because he felt intimidated and just said what the officer wanted to hear. Defendant did not have any prior convictions and was not impeached with any offenses. Defendant was convicted of count III, assault with intent to commit rape, and count IV, commission of a lewd act on a child. The jury was unable to reach verdicts for the penetration charges in counts I and II, and a mistrial was declared.
Defendant’s second jury trial and convictions for counts I and II
At the beginning of his second trial for counts I and II, it was determined that the prosecution had previously failed to disclose information to the defense that the victim had made a prior false sexual assault accusation against another man, which was unrelated to any of the charges against defendant. During the second trial, the victim again testified, but she was impeached with this evidence. Defendant also testified and was again impeached with his prior inconsistent statements to the investigating officer. In addition, he was also impeached with the two prior convictions that had resulted from the first trial, and with his inconsistent statements as to whether he had previously testified or been tried on the same charges. Defense counsel apparently made the tactical decision not to object to the impeachment. Defendant was convicted of counts I and II.
Motion for new trial and dismissal of counts III and IV
After his convictions in the second trial, defendant moved for a new trial for the convictions obtained in the first trial for counts III and IV. Defendant argued the convictions were obtained in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), based on the prosecution’s admitted failure to disclose the victim’s prior false accusation before the first trial. Defendant asserted his convictions in counts III and IV were constitutionally invalid because of the Brady error. The prosecution did not oppose the motion. The court granted the new trial motion as to counts III and IV. The prosecution dismissed those charges and did not retry him.
Failure to move for new trial for counts I and II
When the court ruled on the new trial motion for counts III and IV, defendant’s sentencing hearing for counts I and II was pending. However, defendant did not move for a new trial for counts I and II, even though the prosecution had used the prior convictions from the first trial (counts III and IV) to impeach his credibility at the second trial, and those convictions had just been reversed because of the Brady error.
As a result of his convictions from the second trial, defendant was sentenced to 25 years to life for count I, with a concurrent term of 15 years to life for count II.
Defendant’s first appeal
In his first appeal, defendant challenged his convictions in the second trial for count I, intercourse or sodomy with a child 10 years of age or younger, and count II, oral copulation or sexual penetration with a child 10 years of age or younger. Among other issues, defendant argued that defense counsel should have moved for a new trial as to all his convictions, including those from the second trial, based on the Brady error that occurred prior to the first trial.
We agreed. We held that once the court granted a new trial for counts III and IV based on the Brady error in the first trial, defense counsel was ineffective for failing to similarly move for a new trial for defendant’s convictions in the second trial for counts I and II. As a result of the Brady error, defendant had been impeached at the second trial with the two constitutionally invalid prior convictions that had resulted from the first trial.
We found that defense counsel’s error was prejudicial because the trial court may have granted a new trial motion for counts I and II. We ordered a conditional reversal and remand for the court to consider such a new trial motion on the merits and determine whether the impeachment of defendant with two constitutionally invalid prior convictions at the second trial was harmless beyond a reasonable doubt within the meaning of Chapman v. California (1967) 386 U.S. 18 (Chapman).
Remand
On remand, defendant filed a motion for new trial as to his convictions in the second trial for counts I and II. Defendant argued that the use of the constitutionally invalid prior convictions to impeach his trial testimony was not harmless beyond a reasonable doubt because that impeachment destroyed his credibility. The People generally opposed the motion but did not file a written opposition.
The court conducted a series of hearings, and found the error was harmless beyond a reasonable doubt, and denied defendant’s new trial motion for counts I and II.
The instant appeal
In this appeal, defendant contends the court improperly denied his motion for new trial for his convictions for counts I and II from the second trial. Defendant argues the prosecution’s failure to file a formal opposition amounted to a waiver of any prejudice argument, and the use of the constitutionally invalid prior convictions to impeach his testimony at the second trial was not harmless beyond a reasonable doubt.
Given the importance of the issues before this court, we again review the entirety of the record that was before this court in the first appeal, which included the transcripts for both the first and second trials, the nature of the Brady error, this court’s first opinion, the proceedings that were held on remand, and the superior court’s lengthy findings that denied the new trial motion.
We find that the use of the two constitutionally invalid prior convictions to impeach defendant’s testimony at the second trial was not harmless beyond a reasonable doubt, and defendant’s motion for new trial on remand should have been granted.
We reverse defendant’s convictions and the sentences imposed therein for counts I and II, and remand the matter for further appropriate proceeding.
PART I
FACTS OF THE CHARGED OFFENSES
In 2010, Isidro and Celia A. (Celia) lived in a house in Fresno County with several family members. Isidro’s brother, Mo., and his nine-year-old daughter, M. (the victim), lived in a separate structure behind the house.
Defendant and his brother were farm laborers. They were not related to the A. family, but they lived in the same detached structure with Mo. and M. as tenants. Defendant had to walk through the living space of Mo. and M. to reach the room where he slept.
Celia loans a cell phone to defendant
Celia testified she loaned an inactive cell phone to defendant. Defendant told Celia that he wanted to use the cell phone’s camera to get evidence on his brother because he was beating his wife. At some later point, defendant told Celia that he had left the cell phone in the main house’s bathroom when he took a shower, and someone had taken it. Defendant said he recorded something on the cell phone. Celia told him that she did not know where it was, and she would look into it.
The next day, Isidro told Celia that he found the cell phone in their bathroom, and he gave it to her. Isidro said defendant had activated telephone service on it without telling them.
Discovery of the cell phone’s photographs
On or about October 12, 2010, Celia gave the cell phone to her adult daughter, Leticia. Leticia had previously used that cell phone to take pictures of her own children. She looked through the cell phone and discovered the pictures of her children were gone.
Celia and Leticia testified they discovered a series of new photographs. One photograph clearly showed defendant’s face. The other photographs were sexually explicit images of a man’s body and “a private part of a girl.” The faces of the male and female were not visible.
However, one photograph showed a female either getting dressed or disrobing and partially showed the lower portion of the female’s mouth and chin. (Exhibit No. 2.) Leticia went into M.’s closet and found the clothing depicted in that picture. Based on the clothing, Leticia and Celia believed M. was the female in all the sexually explicit pictures.
Celia testified the date stamps on the sexually explicit photographs were for the previous day. Celia knew that all of the adults had not been home that day, except for Leticia, and that M. had been “on another location on the back side of the house.” Celia and Leticia told M.’s father about the photographs, and they called the police.
M.’s initial statement
When M. arrived home from school that day, Leticia asked M. if anything happened or anybody tried to touch her inappropriately. Leticia testified M. became “a little nervous,” and looked confused, and “then she started crying and said that something had happened to her.”
Leticia testified M. told her about an incident which occurred the previous day. M. said she arrived home from school, and her father was not home. Defendant offered her candy to go in his room. M. said she went into defendant’s room, and he “took her clothes off and started kissing her whole body and then kissed her mouth.” M. said defendant put “his private spot on hers and put something nasty, so she had to go take a shower because she felt nasty.” M. said he put his private “on her,” and not “in” her. M. said he gave her a rash on her private spot. Leticia saw a rash on that part of M.’s body.
Defendant’s initial statement
Celia testified that when defendant returned home from work that day, she asked him “why he had done that to the little girl.” Defendant said he did not do anything. Celia insisted that he did something, and defendant repeatedly denied it. Celia asked him “who took those pictures, and he said no.” Celia insisted he took the pictures. Defendant finally said he took the pictures, but the pictures showed him with “a woman of the street,” meaning a prostitute. Celia replied, “That’s not the body of a woman, but of a little girl.” Celia testified the police arrived and defendant did not say anything else to her.
THE INVESTIGATION
M.’s statement to the police
On October 12, 2010, Fresno Police Officer Chadwick spoke to M. at her house. Chadwick asked M. if defendant used the cell phone to take any pictures of her. She said yes. M. said she arrived home from school, and defendant asked if she wanted some candy. She said yes and went into his room. M. said defendant grabbed her arm and pulled her into his room. He had her lie down on the bed and touched her. Chadwick asked if defendant put his fingers inside her. M. said yes and pointed to her vaginal and pelvic areas.
Officer Chadwick testified M. was “bashful,” “hesitant,” and “reluctant to answer” when they talked about the sexual touching. Chadwick asked M. if defendant did “more touching.” M. said defendant kissed her and touched the rest of her body. Chadwick asked M. if defendant put anything else inside her. M. became “even more closed to the answering,” but ultimately said yes. M. said defendant put his “private” part inside her.
Defendant was arrested that day.
The photographs
A forensic examiner recovered several photographs from the cell phone. The pictures had been taken on different days. The first picture showed a “head shot” of a “shirtless male,” identified as defendant; it was taken on a different day than the other three photographs.
The examiner recovered three photographs taken within a few minutes of each other, around 6:00 p.m. on October 11, 2010. One photograph was a close-up of a female’s vaginal area. Another picture showed a female’s buttocks and “a male … penis.”
The third picture showed “a female putting clothes on or taking them off.” There were two videos on the cell phone which appeared black and contained no discernible audio or video images. There were no other images on the cell phone.
DEFENDANT’S POSTARREST INTERVIEW
Later on October 12, 2010, Detective Rodriguez interviewed defendant after he was arrested. Rodriguez advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and he agreed to answer questions. The interview lasted for one hour and 16 minutes. It was conducted entirely in Spanish and videotaped.
During the interview, Detective Rodriguez falsely told defendant they had DNA and fingerprint evidence which showed he committed the sexual acts. Defendant said he did not touch or penetrate her. Rodriguez suggested that maybe both of them wanted to do it, and that some girls want to experiment and do such things. Defendant said no.
Detective Rodriguez asked defendant whether he should write the report to say defendant lied or he regretted it. Rodriguez said that if defendant testified and said it did not happen, the jury would know he lied and would be mad at him.
Defendant said he had been told that the same little girl in the past had “accused another person and again now today.” Detective Rodriguez dismissed his comment and said defendant’s DNA was inside the victim. Defendant said he did not touch or penetrate her.
Detective Rodriguez told defendant he was getting frustrated, and he would leave defendant alone in the interview room. Rodriguez said he was the only person there who spoke Spanish, and defendant would be placed in jail. Defendant again said it did not happen. Rodriguez said defendant did it by force, and urged defendant not to take the blame if it was something they both wanted to do. Defendant said nothing happened.
Defendant said they were blaming him because he did not get along with the girl’s uncle. Detective Rodriguez said it did not matter because they had defendant’s DNA. Rodriguez again advised defendant that he needed to say what happened because if he used force, “they will get you badly, seriously.”
Defendant said he came home from work, took a shower, and the cell phone was missing. He asked “the Mr.” about the cell phone, and he got mad (apparently referring to Isidro). Detective Rodriguez said he was mad because of what defendant did to the girl. Rodriguez suggested the girl was flirtatious and may have hugged or jumped on him. Defendant said the woman in the house knew the girl was flirtatious, and the girl was allowed to watch pornographic movies with “the Mr.” Defendant again said he did not do anything with the girl.
Detective Rodriguez asked defendant to explain the pictures on the cell phone. Defendant said the girl used to walk in and out of his room, and she took the picture that showed his face.
Detective Rodriguez told defendant they were going to get him once they reviewed the time stamps on the pictures. Defendant said the adults were “coaching” the girl on what to say. Rodriguez said it did not matter because the DNA was there, and he had better explain whether or not it was by force. Defendant again said nothing happened.
Detective Rodriguez said he was not there to “mess” him up, but the others were blaming him for raping the girl by force. Rodriguez said they would do the test, but defendant would have problems when it came back positive.
Detective Rodriguez suggested the girl wanted to do something with defendant, and that would be better than if defendant used force against her. Defendant said he let the girl borrow the cell phone, she took one picture when he was lying on his bed without his shirt on, and the other people in the house allowed her to watch pornographic movies. Rodriguez said the jury would not like to hear defendant claim that the girl watched pornographic movies, and that she started it. Defendant said the lady in the house told his sister-in-law that she saw the girl watching pornographic movies. Defendant also said the girl repeatedly walked through his room because the door did not have a lock.
Detective Rodriguez asked defendant to explain how the DNA “from her private parts got on your hands.” Defendant said he was lying on the bed when the girl walked into his room. She took off her pants and “threw” herself on top of him.
“[Defendant:] And then my hand was there underneath.
“[Rodriguez:] Underneath her private part?
“[Defendant:] Yes.”
Defendant said when the girl threw herself on his bed, he put his hand over his private area so he would not get hurt, and his hand touched her private parts. Defendant said the girl took the picture but nothing happened, and his finger did not penetrate her.
Detective Rodriguez told defendant to wait, and he left the interview room. When Rodriguez returned, he told defendant he was checking the other test results. Rodriguez asked defendant what the girl said. Defendant said she grabbed his face and kissed him. Defendant said the girl pulled down the zipper on his pants. Defendant said the girl grabbed his penis, put it in her rear private part, and she took a picture. Defendant told her no, got up, and took a shower.
Detective Cabrera entered the room, and Detective Rodriguez reported what defendant just said. Rodriguez told defendant that Cabrera had the DNA results that showed his penis went on the girl’s private parts.
Detective Rodriguez asked defendant if he took the picture after he penetrated the girl. Defendant said the girl took the picture, and he never penetrated her. Defendant said there was just “the slight touch and then I told her to get out.”
“[Rodriguez:] The contact was skin to skin right, your penis to her private parts right, you made contact to the skin?
“[Defendant:] Right.”
Detective Rodriguez told defendant the DNA test showed his penis touched the girl’s private parts. Defendant said the test was wrong because he did not penetrate. Rodriguez said the results did not mean penetration, but that his penis touched her private parts. Defendant said that was correct.
Detective Rodriguez said the DNA tests also showed his hand touched her private parts. Defendant said the girl grabbed him. Rodriguez asked why he did not push her away. Defendant said he could not do so.
Defendant said the girl turned his body over and she got on top of him “like [a] doggy,” and took one of the pictures. Detective Rodriguez said defendant took the picture. Defendant said no, and he did not realize she had taken the picture.
Detective Rodriguez said they were going to do a test to tell if defendant was lying. Defendant said he would take the test. Rodriguez said that if the test showed he was not lying, then “I will take away that charge,” but if the test showed he was lying, then he would “double your charge.”
Detective Rodriguez asked defendant about another sexually explicit picture on the cell phone. Defendant said it showed a girl named “Morena,” who lived near the alley.
Detective Rodriguez asked defendant if he regretted touching the victim. Defendant said the girl jumped and grabbed him, he did not touch her, and he should have told her to leave.
Detective Rodriguez asked defendant what he would tell the girl if she was there. Defendant said he would tell her to stop lying about what she did, and he would apologize for “not letting the lady know” what the girl did. Defendant said he regretted that he let the girl grab his body.
Rodriguez’s trial testimony about the interview
Detective Rodriguez testified defendant seemed “pretty intelligent” during the interview, but he was not sophisticated. Rodriguez admitted he made false statements to defendant during the interview about DNA and fingerprint evidence to see his reaction. He falsely told defendant that DNA tests showed that he penetrated her.
M.’S INTERVIEW
On October 20, 2010, M. was interviewed by law enforcement officers about whether defendant sexually molested her. The interview was videotaped.
M. said defendant lived with her family and he did “something nasty” to her more than once. M. said the first incident happened when defendant came into her room. M. and her father were asleep in separate beds. Defendant went to M.’s bed, opened the blankets, got in, and he “sleep [sic] with me.” Defendant kissed her mouth and it was “nasty.” M. said defendant “made love” to her. M. was asked to explain what “making love” meant. M. said defendant kissed her mouth and “felt my parts.” Defendant pulled down M.’s pajama pants and removed her underwear.
M. said defendant kissed her mouth, chest, neck, and her “little thing.” M. also said defendant put his penis “inside” her and it felt “nasty.” Defendant also did something to her “bottom.” Defendant said, “That’s good.” Defendant also took her hand and put it on his private area.
M. said she pushed him away and said she did not love him. M. washed in the restroom. Defendant told M. not to tell her dad or anyone else. Defendant went back to his own room. M. said she told her cousin about it later on, and her cousin had the photographs that defendant took during this incident.
M. said that during another incident, defendant went into her room and took pictures of the “nasty” things he did to her bottom. Defendant got in her bed, kissed her mouth, chest, and private area, and “made love.” He licked her private part. He put his penis “in” her private part. M. pushed him and tried to run away, but the door was locked. M. said defendant took pictures of her with the cell phone while she was asleep. She woke up and pushed him away.
Medical evidence
M. was examined by a family nurse practitioner, who reported her genital examination was normal. The nurse was unable to say whether or not M. had been sexually abused. M. told the nurse that defendant penetrated her body with both his penis and a finger, and fondled her anal and genital areas.
M.’S TRIAL TESTIMONY
M., who was 10 years old at the time of second trial, testified defendant did “bad things to me” and “made love to me.” Defendant “touched” her more than one time and took pictures of her with the cell phone.
M. testified about one incident when she came home from school and everyone was asleep. Defendant asked if she wanted candy, and she went into his room. Defendant pushed her down on the bed and took off her clothes. He lowered his pants but kept on his shorts. He kissed her “[o]n my thing and my mouth.” He “licked his finger and put it on me,” inside her body. He put his tongue and penis in the private part of her bottom. He also put his penis in her private part. M. testified defendant took pictures of their bodies and private parts during this incident.
On cross-examination, M. testified defendant touched her four times. The first time it happened on his bed. It was in the daytime after she got home from school, and no one was home. They took off their clothes and he touched her.
M. testified that everyone was home during the second incident, which happened in the bedroom she shared with her father. The third incident happened at night, when her father was home. She could not remember which room they were in. M. testified the fourth time happened in her room, and defendant took pictures during the last incident.
Defense counsel impeached M. with her preliminary hearing testimony and prior inconsistent statements as to when, where, and how these incidents happened.
EVIDENCE ABOUT M.’S PRIOR FALSE SEXUAL ACCUSATION
Celia, who appeared as a prosecution witness, testified she knew M. previously accused another man of sexually molesting her, and the accusation was false. M. told Celia she made the sexual molestation against the man because something happened at “Elizabeth’s” house. M. claimed the man took her into a room and played pornographic movies. Celia testified the police were called about this accusation, and M. went to therapy. Celia testified M. later said she lied about “what happened at Elizabeth’s house.”
During M.’s direct examination testimony, the prosecutor asked her about an incident in 2009, when she lived with her cousin Elizabeth. M. testified she knew men named “Pato” and “Armando” at that time. She was eight or nine years old.
The prosecutor asked M. whether, in August 2009, she told her school principal or the police that Pato did something bad to her. M. replied that she did not remember, and the man did not do anything to her. The prosecutor showed a police report to M., and M. said it was something about a movie but “nothing happened.”
“Q So you told [the police] that Pato had done something inappropriate to you but he had not, is that what you’re telling us now?
“A Yes.
“Q Okay. Why did you do that, M.?
“A I don’t know.
“Q Did you have a problem with Pato, M.?
“A Yes.
“Q Okay. Tell us about that. What was the problem?
“A He would yell at me and hit me.
“Q And this happened at Elizabeth’s house?
“A Yes.
“Q So that’s why you told the police that Pato had touched you and done bad things to you?
“A Yes.”
The prosecutor asked M. if she was telling the truth about defendant touching her, and not making it up because she did not like defendant. M. said she was telling the truth about defendant. M. knew it was wrong to lie, and she came forward and admitted that nothing happened with Pato.
“[The prosecutor:] … I’ll ask you one final time, you’re not making any of this up, the things that we have talked about here that [defendant] did to you; is that correct?
“A Yes.”
On cross-examination, M. testified she got along “bad” with Pato because he hit and yelled at her when no one was around. She made up the story because she was mad at him. M. testified she told the police that Pato took her into his bedroom, he had her sit on the bed, he held her hand, and he put on a movie with naked people.
M. testified she also told the police that Pato touched her private part where she urinated; he put tape over her mouth; and he tied her hands and feet while she was on his bed. M. said these stories were not true, and she said these things because she was mad at Pato. She got the idea to say he tied her up from something on the news.
Also on cross-examination, M. testified she actually watched a movie with Pato that showed naked people, and Pato told her not to tell her father about it. M. testified she knew what it meant to “make love,” and learned the word in a book.
EXPERT TESTIMONY
Dr. Randall Robinson testified as the prosecution expert on child sexual abuse accommodation syndrome (CSAAS). She testified CSAAS was a “descriptive term that explains why children allow themselves to be sexually abused and why they don’t report it.” There is a “misconception” that children act rationally, but it was “very uncommon that children report having been sexually abused.” When a child actually makes such a report, the report is “generally inconsistent” and the child would not disclose everything that happened because the child would not comprehend what the perpetrator had done. Dr. Robinson explained that a child could be so overwhelmed by disclosing the sexual molestation and answering questions, that the stress makes the child say the incident was imagined or a dream.
On cross-examination, Dr. Robinson testified she would be interested to know if a child had previously made a false sexual molestation report because “it’s so unusual for children to fabricate allegations of sexual abuse .…” Defense counsel asked Dr. Robinson why a child would lie about sexual abuse. Dr. Robinson replied, “[G]enerally children do not lie,” and she had seen examples in custody disputes and where “children lie about things that make them look good to people,” but “they don’t lie about something that is scary to them.”
Defense counsel asked Dr. Robinson about a documented situation where a child lied about a sexual event, and then the child later reported being molested by another person, and whether “you at least have to be careful when you discuss the matter with that child and take the prior known false accusation into account.” Dr. Robinson agreed, and said it was unusual because most children underreport molestation incidents, and she would have to “know so much information about that child” to know what happened.
DEFENDANT’S TESTIMONY AT THE SECOND TRIAL
Defendant’s testimony about the charged offenses
Defendant testified he never touched M. in any way, he never offered candy to get her in his room, and he did not take the sexually explicit photographs found on the cell phone.
Defendant testified he borrowed the cell phone from Celia to photograph fights between his brother and sister-in-law. He knew an adult woman named “Morena,” who was homeless and “hung out” in an alley near the house. He had a sexual relationship with Morena in his bedroom at Celia’s house. Morena used the cell phone to take a photograph of him.
Defendant said he last saw Morena on the day before he was arrested, when they had sex at Celia’s house. Celia was angry about his relationship with Morena, and told him that he had to leave the house because of her.
Defendant testified that one day, he arrived home after work and left the cell phone on his bed when he took a shower in the main house. The door to his room did not lock. The cell phone was gone when he returned. Defendant testified he had a problem with M. walking in and out of his room. He denied taking any of the sexually explicit photographs on the phone, and he did not know who did it.
Defendant testified he was “exasperated” during the interview with Detective Rodriguez because he was arrested for something he did not do. When Rodriguez talked about the DNA, defendant thought they had “invented something” and “fabricated some evidence” because he knew he did not touch M.
Defendant testified he repeatedly told Detective Rodriguez that he did not touch M. because that was the truth. Defendant knew M. had watched pornographic movies. Rodriguez accused him of lying and said he forced himself on the girl. When Rodriguez said he was going to leave defendant alone in the room, defendant thought “nobody was going to come back for me.”
Defendant testified he finally made certain admissions to Detective Rodriguez because he was afraid and thought Rodriguez was “getting angry.” Rodriguez changed the way he talked to defendant because he was not “getting anything” from him. Rodriguez said he wasn’t there to mess him up, but defendant thought just the opposite because Rodriguez used a Spanish word which meant “tough,” or to be beaten. Rodriguez accused defendant of showing disrespect, and defendant was afraid because the police were “bad” in Mexico.
Defendant testified he was frightened when Detective Rodriguez said he would “double” the charge if he was “lying.” He believed Rodriguez was going to “screw” him. Defendant felt he had to say something besides denying the charges so Rodriguez would “chang[e] his mood.”
Defendant testified he lied to Detective Rodriguez when he said the girl jumped on him, grabbed his private parts, his finger and private parts touched her private parts, and she took the pictures. Defendant was “frightened” and “terrified,” and he made the false statements because Rodriguez “had already gotten very angry with me,” and defendant thought he could “get out of there” if he admitted something. He told Rodriguez that Morena took one of the photographs, but Rodriguez confused him when he asked about the other pictures.
Defendant’s testimony about the first trial and his prior convictions
When defendant testified at his first trial, he was not impeached with any prior convictions. At the conclusion of that trial, defendant was convicted of count III, assault with intent to commit rape; and count IV, commission of a lewd act on a child; the jury was unable to reach verdicts for count I, intercourse or sodomy with a child 10 years of age or younger; and count II, oral copulation or sexual penetration with a child 10 years of age or younger.
At his second trial for counts I and II, a major portion of defendant’s testimony concerned his inconsistent testimony about whether he had any prior convictions and had previously testified before a jury in this case. As we will explain, these same prior convictions were later stricken because of the Brady violation.
The following sequence of defendant’s testimony is relevant to his appellate contentions that the impeachment of his testimony with prior convictions later found constitutionally invalid was not harmless beyond a reasonable doubt.
Direct examination
During direct examination at his second trial, defense counsel asked defendant if he was nervous and why. Defendant testified he was nervous because he had never appeared “before people like this,” apparently referring to the jury. Defense counsel asked him if he had ever been convicted of a crime. The prosecutor objected, and the court overruled it.
Defense counsel again asked defendant if he had ever been convicted of a crime in Mexico, the United States, or anywhere else. Defendant said no. Defense counsel asked if he had ever been accused of committing a sexual crime. Defendant said no. The prosecutor again objected, and the court excused the jury.
The court’s ruling
Outside the jury’s presence, the prosecutor complained defendant had just been convicted of two felonies committed against M. in the first trial, but he was falsely testifying that he had never been convicted of anything. The court replied the prosecutor could impeach him on cross-examination. Defense counsel interjected: “Sure can, we can talk about the other trial.”
The court said if defendant wanted to put his character in evidence then he could do so, and defense counsel agreed. The court recalled the jury and defendant’s testimony continued.
Continued direct examination
Defense counsel again asked defendant if he had been convicted of anything. Defendant said he had been convicted six months ago in California.
“Q. When I asked you previously about whether or not you had ever received a conviction, why didn’t you include that one in your answer?
“A. I understood if it was only Mexico.
“Q. But I think I asked you specifically whether or not you had suffered any convictions in California. When I asked you that question why didn’t you include this other conviction you’re talking about? Any reason?
“A. Yes.
“Q. Why?
“A. I thought that maybe the jury should not know about it.
“Q. Okay. When you said also that you have never testified before, now that we have had a chance to talk about this other conviction, I’ll ask you the question again: Have you ever testified before concerning this or any other case?
“A. As to this case, yes.
“Q. Okay. As to any other case?
“A. No.” (Italics added.)
Cross-examination
On cross-examination, the prosecutor asked defendant why he initially claimed he had never testified in a courtroom.
“Q. [Y]ou said that you were nervous here in court, correct, testifying right now?
“A. Yes.
“Q. And you said that because—that that was because you had never been in front of a group of people like this before, right?
“A. Yes.
“Q. But that wasn’t true; isn’t that correct?
“A. No.
“Q. That wasn’t true, right?
“A. As to what I said that I had never had?
“Q. Right, that you had never been in front of a group of people like this before.
“A. Yes, because I didn’t know if I was to say about the other time.
“Q. Okay. But you’re under oath, you know that, right?
“A. Yes.
“Q. And you have taken an oath to tell the truth, correct?
“A. Yes.
“Q. And you were asked why you were nervous and you said it’s because you have never been in front of a group of people like this before. That was not true; isn’t that correct?
“A. No. [¶] … [¶]
“Q. You have been in front of a group of people in this situation before?
“A. Yes.
“Q. And you told these people that you haven’t.
“A. Yes, because I didn’t know if I was to say if I had been in a trial before.” (Italics added.)
The prosecutor next asked defendant about his prior convictions.
“Q. … You also told these people when you were questioned that you had never been convicted of a crime in Mexico or in the United States, correct?
“A. Yes.
“Q. And you have been convicted of a crime in the United States, correct?
“A. Yes, but not for what is being done now.
“Q. You were convicted of a crime related to this case, correct?
“A. Yes. From the last time, yes.
“Q. All right. And you told these people that you had not been convicted of a crime?
“A. Yes.
“Q. All right.
“A. I was confused.
“Q. What were you confused about? It was a simple question: Have you been convicted? You said no. That wasn’t the truth.
“A. I didn’t know. I didn’t know about the law. [¶] … [¶]
“Q. You know that you have been convicted, don’t you? Yes or no.
“A. I don’t know.
“Q. You don’t know if you have been convicted of a crime related to this case, is that what you’re saying?
“A. From what I know, they did not reach a decision.” (Italics added.)
The prosecutor asked defendant if he previously said that he thought the jury “shouldn’t know about it.” Defendant said yes, but added that he did not know anything.
“Q. What do you mean you didn’t know anything?
“A. If I – if I should say it or not.” (Italics added.)
After further cross-examination about the charged offenses, the prosecutor asked defendant whether he testified on direct examination that he had been convicted of an offense six months earlier. Defendant said yes.
“Q. [W]hen I got up and asked you if you had been convicted you said the jury didn’t reach a decision and it wasn’t your understanding that you had been convicted, correct?
“A. Yes.”
Redirect examination
On redirect examination, defense counsel brought up the conviction issue.
“Q Tell the jury, please, why you said you had never been convicted by a jury in America or in Mexico?
“A The other day or last week I heard like the judge said that that should not be revealed about the past trial. That’s why I said no.[ ]
“Q Okay. Were you, in fact, convicted by a previous jury of some counts related to what you’re here now for?
“A No.
“Q Were you – were you convicted of anything in the last trial?
“A Yes.
“Q Okay. In the last trial were you convicted by a jury of the counts which you are now facing with this jury?
“A No.
“Q Okay. Is that why you said you did not have a conviction?
“A Yes.” (Italics added.)
Defendant testified he thought that he was not supposed to reveal that he testified before the jury during the previous trial. Defendant testified he was not trying to mislead the jury, but he was “just following what I had heard” from the judge.
Defense surrebuttal
Defense counsel called Detective Alfred Lopez. Lopez testified he sat through the entirety of defendant’s first trial, and he had been present during defendant’s second trial as chief investigating officer. Lopez testified that he first heard about M.’s prior false molestation claim when she testified in this second trial.
INSTRUCTIONS AT THE SECOND TRIAL
The court’s instructions about the first trial and defendant’s prior convictions
After presentation of the defense evidence, the court advised the parties that it would read an instruction to the jury regarding defendant’s testimony about the first trial because “it’s obvious now that the jurors have heard that there has been a previous trial in this case.” The court read the proposed instruction, and defense counsel and the prosecutor agreed with it.
When the jury returned, the court read the following instruction that the parties had agreed to:
“[Y]ou now all know that there was a previous trial in this case. [Y]ou are not to speculate as to why the charges that are before you are being tried again. And in addition, you’re not to speculate as to the nature of any crime that the defendant may have been convicted of in that previous trial.” (Italics added.)
Neither party asked the court for any additional instructions about defendant’s testimony regarding the first trial or the impeachment with the two prior convictions.
During the instructional phase, the court gave CALCRIM No. 226, the pattern instruction on witness credibility, that listed numerous factors to decide the credibility or believability of witnesses including the following:
“If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject. If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things, but told the truth about others, you may simply accept the part that is true and ignore the rest.” (Italics added.)
The pattern version of CALCRIM No. 226 contains three additional factors for the jury to evaluate the credibility of witnesses that would have been supported by the evidence in this case: “Did the witness admit to being untruthful? [¶] What is the witness's character for truthfulness? [¶] Has the witness been convicted of a felony?” (CALCRIM No. 226.) However, the court did not include these three factors when it read CALCRIM No. 226 to the jury in defendant’s second trial. Neither party objected to the omission.
The jury did not receive any additional instructions about how to consider the impeachment of defendant with the two prior felony convictions based on the same victim, that the prior convictions were only admissible to impeach his credibility, or that the evidence was not admissible to show his propensity to commit crimes or the charged offenses.
CLOSING ARGUMENTS AT THE SECOND TRIAL
The prosecutor did not address defendant’s prior convictions in her initial closing argument.
In his closing argument, defense counsel reminded the jury that he asked defendant if he had ever testified or been convicted of a crime. Defense counsel declared defendant thought the judge told him not to talk “ ‘about that prior jury’ ” and “ ‘the other one.’ ” Defense counsel argued the prosecutor unfairly “jumped on” defendant’s confusion and made the jury think defendant was deliberately lying, when he thought he was following the court’s orders. Counsel continued:
“So now you know it. I mean, it’s out there. He was tried by another jury and they hung. That’s – we have talked about it. That’s evidence. He thought he didn’t have a conviction. He thought he was told not to talk about it.” (Italics added.)
In her rebuttal, the prosecutor relied on the prior convictions to attack defendant’s credibility, and asserted defendant repeatedly lied to the jury about everything when he testified:
“… I’m going to say to you that he lied to you. I’m just going to straight out say it. He lied to you again and again and again.”
The prosecutor cited defendant’s claim that he thought he was following the court’s orders not to mention his prior convictions, and added:
“… [Defendant] was not following orders to tell you that he had never been convicted or testified before. There was no order from this court that you not be told that.” (Italics added.)
Defense counsel objected. The court overruled the objection and instructed the jury that it heard the evidence; it could decide what it heard; and counsel could argue what they believed the evidence showed. The prosecutor resumed and again asserted there was never a specific order not to talk about it.
The prosecutor moved on to other matters, particularly M.’s credibility and the impact of her prior false molestation accusation against another man. The prosecutor argued M.’s allegations against defendant were still credible because of the cell phone pictures and defendant’s statements to the police. The prosecutor then returned to defense counsel’s statements about the first trial.
“[W]hen I was talking about defendant’s testimony of whether or not he had been convicted and counsel said he was tried and they hung. There is a little more to that. They did hang, but there was also a conviction. And you heard me get that from defendant, although he backtracked on that, but there was a conviction as well.” (Italics added.)
Verdict and sentence
After the second trial, defendant was convicted of count I, intercourse or sodomy with a child 10 years of age or younger; and count II, oral copulation or sexual penetration with a child 10 years of age or younger.

PART II
POSTVERDICT MOTIONS
Motion for new trial for counts III and IV from the first trial
After defendant was convicted in the second trial, he filed a motion for new trial only as to his convictions in the first trial for counts III and IV. Defendant filed this motion while his sentencing hearing for counts I and II were pending.
Defendant argued his convictions in the first trial were obtained in violation of his constitutional right to due process because of the Brady violation. Defendant argued the evidence about M.’s prior false accusation was material because it would have undermined M.’s credibility in the first trial, the prosecution was responsible for law enforcement’s failure to comply with discovery, and an alleged negligent failure to disclose still violated Brady. Defendant further argued the disclosure of this evidence would have changed the defense strategy in the first trial about how to impeach M.’s credibility.
On November 9, 2011, Judge Vogt, who presided over defendant’s first trial, heard defendant’s motion for new trial. The prosecutor did not file opposition and did not offer argument against it “based on the subsequent verdict and our in-chambers discussion.”
The court granted a new trial for defendant’s two convictions from the first trial: count III, assault with intent to commit rape; and count IV, commission of a lewd act on a child. (People v. Orozco-Ramirez, supra, F063817, at p. 27.)
Sentencing hearing for second trial
After Judge Vogt granted the new trial motion for counts III and IV from the first trial, defendant did not file a motion for new trial for counts I and II from his second trial, or argue that the prosecutor improperly used the constitutionally invalid convictions from the first trial to impeach his testimony in the second trial.
On November 16, 2011, Judge Ellison conducted the sentencing hearing for defendant’s convictions for counts I and II from the second trial; this hearing was held after Judge Vogt had granted defendant’s new trial motion for counts III and IV based on the Brady error. Neither the court nor the parties addressed the possible impact of the Brady error on the convictions used to impeach defendant’s testimony at the second trial. Defendant was sentenced to 25 years to life for count I, with a concurrent term of 15 years to life for count II.
After imposing the sentence, the court granted the People’s motion to dismiss counts III and IV, which had been the subject of the new trial motion, and defendant was not retried for those charges. (People v. Orozco-Ramirez, supra, F063817, at pp. 27–28.)
PART III
DEFENDANT’S FIRST APPEAL
Defendant filed an appeal as to his convictions in the second trial for count I intercourse or sodomy with a child 10 years of age or younger; and count II, oral copulation or sexual penetration with a child 10 years of age or younger. Defendant’s appeal did not address any issues from the first trial since the court had granted his new trial motion for the convictions that resulted in that case because of the Brady error, and the People decided not to retry him for counts III and IV. However, the record before this court included the entirety of the record from both trials.
On appeal, defendant argued his trial counsel was prejudicially ineffective for failing to object to the prosecutor’s use of his two prior convictions from the first trial to impeach his credibility when he testified at the second trial, and for allowing the jury to learn that he had been convicted in another trial involving the same victim. (People v. Orozco-Ramirez, supra, F063817, at p. 28.)
As a separate matter, defendant argued counsel was also prejudicially ineffective for failing to make a second motion for new trial as to counts I and II, once the court had granted such a motion as to counts III and IV because of the Brady error in the first trial, since those prior convictions had been used to impeach his testimony at the second trial. Defendant argued counsel’s failure to make a new trial motion was prejudicial because he had been impeached with constitutionally invalid prior convictions in the second trial. (People v. Orozco-Ramirez, supra, F063817, at pp. 33–34.)
This court’s opinion
On March 17, 2014, this court filed the opinion in defendant’s appeal and conditionally reversed his convictions in counts I and II from the second trial.
We began with the People’s failure to disclose M.’s prior false molestation accusation during the first trial. We held that defendant’s constitutional right to due process under Brady was violated in the first trial.
“The evidence of M.’s prior false molestation accusation was favorable and material to the defense because it impeached the credibility of the alleged victim of the charged offenses. The evidence was in the possession of the investigating agency. It would not have been cumulative since M.’s testimony at the first trial was not impeached with any evidence about a prior false report.... [D]efendant’s due process rights were violated under Brady even if the failure to disclose was inadvertent and not in bad faith. (Brady, supra, 373 U.S. at p. 87; In re Sodersten [(2007)] 146 Cal.App.4th [1163,] 1225.)
“Defendant suffered prejudice as a result of the Brady error in the first trial because he did not receive a fair trial, i.e., ‘a trial resulting in a verdict worthy of confidence.’ (Kyles v. Whitley [(1995)] 514 U.S. [419,] 434.) M. testified about her allegations against defendant without the jury [at the first trial] learning that she had made a false sexual molestation allegation against another man who had lived with her, and that her prior false allegations featured rather lurid details.
“ ‘[T]he term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence – that is, to any suppression of so-called ‘Brady material’ – although, strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.’ (Strickler [v. Greene (1999)] 527 U.S. [263,] 281 [(Strickler)].)
“Defendant’s first trial was obviously the exception to this rule because a ‘real “Brady violation” ’ occurred, material evidence was suppressed, and his convictions in counts III and IV were obtained in violation of his constitutional right to due process of law. (Strickler, supra, 527 U.S. at p. 281.) Indeed, the prosecution conceded as much since it did not file any opposition to defendant’s motion for new trial, and the court granted the motion because of the impact of the Brady error on the convictions from the first trial. (Ibid.)” (People v. Orozco-Ramirez, supra, F063817, at pp. 31–32.)
While defendant’s first trial was tainted by the Brady violation, we found there was no Brady violation in the second trial since the evidence of M.’s prior false accusation was disclosed and introduced to impeach her credibility at the second trial. (People v. Orozco-Ramirez, supra, F063817, at p. 32.)
Next, we found defense counsel was not prejudicially ineffective for failing to object when the People impeached defendant’s testimony at the second trial with his prior convictions from the first trial. We found the convictions from the first trial were still valid at the time defendant testified at the second trial, and defense counsel made a reasonable tactical decision to allow the jury to learn about the first trial and defendant’s prior convictions from that trial (counts III and IV).
“[Defense counsel believed] that it would help defendant if this jury also learned that another jury had been unable to convict defendant of similar charges which were now before it. The crucial point would have been that another jury had not believed M.’s testimony about the specific sexual acts which defendant was accused of committing. Such an inference would have been further bolstered by the impeachment evidence against M. about her prior false molestation accusation. This reasonable tactical decision serves to explain defense counsel’s willingness to allow the jury to hear about the first trial, his decision not to object to the prosecutor’s use of the prior convictions to impeach defendant’s testimony at the second trial, and the nature of his closing argument.” (People v. Orozco-Ramirez, supra, F063817, at p. 37.)
“[D]efense counsel was determined for the jury to learn that another jury had been unable to convict defendant of similar charges [in counts I and II]. Defense counsel’s tactical decisions were reasonable even though the prior convictions may have been tainted by the Brady violation in the first trial.” (People v. Orozco-Ramirez, supra, F063817, at p. 38.)
We explained that after defendant was convicted in the second trial of counts I and II, defense counsel properly filed a motion for new trial for his convictions for counts III and IV based on the Brady error in the first trial. We reviewed the procedural history that led to Judge Vogt’s decision to grant the motion for new trial based on the Brady error in the first trial as to counts III and IV.
However, we held that once Judge Vogt granted the new trial motion for defendant’s convictions for counts III and IV based on the Brady error at the first trial, defense counsel was prejudicially ineffective for failing to move for a new trial for defendant’s convictions for counts I and II from the second trial.
We held that such a motion should have been made because the convictions in counts III and IV had been used to impeach defendant’s testimony at the second trial, and those convictions were constitutionally invalid because of the Brady error. While counsel may have had a valid tactical reason for allowing impeachment at the second trial, “the reason for defense counsel’s tactical decision ceased to exist” once defendant was convicted of counts I and II in the second trial, and the prior convictions were found invalid. (People v. Orozco-Ramirez, supra, F063817, at p. 38.)
“Once Judge Vogt granted defendant’s new trial motion for counts III and IV based on the Brady violation, there was no tactical reason defense counsel should not have moved for a new trial for counts I and II from the second trial. The suppression of evidence in violation of Brady violates a defendant’s constitutional right to due process. (Brady, supra, 373 U.S. at p. 87; Strickler, supra, 527 U.S. at p. 280.) The use of a constitutionally invalid prior conviction for impeachment purposes is error of constitutional dimension. (United States v. Brito-Hernandez [(1993)] 996 F.2d 80, 81–82; Bates v. Nelson (9th Cir.1973) 485 F.2d 90, 95; People v. Coffey (1967) 67 Cal.2d 204, 218–219.) Based on Judge Vogt’s decision to grant a new trial as to counts III and IV because of the Brady violation in the first trial, defense counsel should have filed a motion for new trial before Judge Ellison, and argued defendant’s convictions in counts I and II in the second case were tainted because his trial testimony was impeached with prior convictions which were constitutionally invalid.” (Id. at pp. 38–39.)
We held that defense counsel was prejudicially ineffective for failing to file a motion for new trial for counts I and II from the second trial, but remanded for further specific findings:
“Based on the record before this court, we believe that a motion for new trial as to counts I and II might have been meritorious, and defense counsel was prejudicially ineffective for failing to make such a motion. However, we cannot say that the trial court should have granted a new trial motion on the merits. We believe it would be more appropriate to conditionally reverse and remand the matter for defendant to make the appropriate new trial motion as to counts I and II, based on the impact of using the constitutionally invalid prior convictions to impeach his testimony at the second trial.
“A motion for new trial may be based on federal constitutional error. (See People v. Homick (2012) 55 Cal.4th 816, 894; People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27, reversed on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.) Upon such a motion, the superior court must determine whether the use of the defendant’s constitutionally invalid prior convictions was harmless beyond a reasonable doubt, pursuant to [Chapman, supra,] 386 U.S. [at p. 24.] (United States v. Brito-Hernandez, supra, 996 F.2d [at p.] 81–82; People v. Alvarez (1996) 14 Cal.4th 155, 216, fn. 21.)
“We believe this remedy is appropriate so the new trial motion may be brought and heard before the same court which presided over defendant’s second trial, in order for that court to consider defendant’s legal and factual contentions. (See, e.g., People v. Drake (1992) 6 Cal.App.4th 92, 97–98; People v. Braxton [(2004)] 34 Cal.4th 798, 818–819.) If the court denies the new trial motion, the court shall reinstate defendant’s convictions for counts I and II. If the court grants the motion, defendant may be retried.” (People v. Orozco-Ramirez, supra, F063817, at pp. 39–40, italics added.)
We thus conditionally reversed counts I and II and remanded for further appropriate proceedings for the superior court to determine whether the impeachment of defendant’s testimony at the second trial with constitutionally invalid prior convictions was harmless beyond a reasonable doubt.
Neither party filed a petition for rehearing or a petition for review. On May 20, 2014, this court filed the remittitur.
PART IV
PROCEEDINGS ON REMAND
As a result of this court’s conditional reversal of counts I and II on appeal, Judge Ellison, who presided over defendant’s second trial, conducted all hearings on remand in this case, heard defendant’s motion for new trial as to counts I and II, and denied the motion after finding the use of the two constitutionally invalid prior convictions to impeach defendant’s testimony at the second trial was harmless beyond a reasonable doubt. The court’s decision on remand is the subject of this appeal.
Appointment of new counsel
On June 5, 2014, the court held the first hearing on remand. At both trials, David Mugridge had represented defendant and Deputy District Attorney Michelle West appeared for the People. They were present at the first hearing on remand.
The court relieved Mr. Mugridge given this court’s finding of ineffective assistance. The court appointed Michael Aed to represent defendant for all proceedings on remand.
Attempted resolution
In July, October, and December 2014, the court held several hearings at which Mr. Aed and Ms. West stated they were trying to reach a resolution of the matter. In the course of these hearings, the court advised the parties that the situation was not similar to pretrial plea negotiations because defendant’s convictions from the second trial had only been conditionally reversed. The court stated that it would not consider a plea agreement unless defendant filed a new trial motion and the parties stipulated to the legal grounds for granting a new trial motion.
As we will discuss below, defendant filed his motion for new trial in December 2014.
As of January 2015, Ms. West had left the district attorney’s office and was replaced by David Shabaglian. Mr. Shabaglian stated that the People opposed defendant’s new trial motion, but declined to file a formal written opposition and submitted the matter on the court’s findings. Mr. Aed stated that once the People decided to oppose the motion, it was not possible to resolve the matter unless the court granted his motion for new trial. The court concurred there had not been a meeting of the minds as to a court-approved resolution.
DEFENDANT’S MOTION FOR NEW TRIAL
On December 29, 2014, Mr. Aed filed a motion for new trial as to defendant’s convictions for counts I and II from the second trial. The motion extensively summarized the facts of the case, the Brady error at the first trial, and the prosecutor’s use of the two prior convictions from the first trial to impeach defendant’s testimony at the second trial. The motion also summarized the prosecutor’s closing argument at the second trial, that defendant lacked credibility because he had repeatedly lied to the jury about whether he had prior convictions and had testified in another trial, and that while the jury in the first trial had hung on some counts, the jury had convicted him on other counts.
Mr. Aed argued that defense counsel properly filed a motion for a new trial as to counts III and IV from the first trial based on the Brady error. Once Judge Vogt granted that motion, defendant’s prior convictions in counts III and IV were constitutionally invalid. Defense counsel should have filed another motion for new trial for his convictions in the second trial because defendant’s credibility had been impeached with the two constitutionally invalid prior convictions from the first trial.
Mr. Aed asserted the error was not harmless beyond a reasonable doubt under Chapman because the case was close. Mr. Aed argued the first jury had deadlocked on the same two counts, the victim had made prior false allegations that were very detailed and explicit, and “[g]uilt or innocence turned on whether the jury believed [the victim] or [defendant].” The prior convictions played a crucial role in the jury’s decision to believe the victim rather than defendant since the jury learned defendant had been convicted of prior convictions involving the same victim that were similar to the charged offenses.
The court’s tentative ruling
On January 29, 2015, the court convened a hearing on defendant’s new trial motion. Mr. Aed and Mr. Shabaglian were present. The court asked Mr. Shabaglian if he wanted to file a written response to defendant’s motion for new trial. Mr. Shabaglian said no and added: “We do oppose, but I did not intend to file an opposition to it.”
The court advised the parties that since neither attorney had participated in the prior trial, the court had been “left to rely on its own recollection about the facts of this case,” and that it would make a tentative ruling “based upon my recollection about what the evidence was in this case, and let you argue whether or not … this error was harmless beyond a reasonable doubt at a some future date.” (Italics added.) The court would then invite the parties to introduce any contrary evidence and/or arguments.
The court stated that it was settled that the People committed a Brady violation at the first trial by failing to disclose evidence of M.’s prior false accusation, those convictions were used to impeach defendant at the second trial, and the Brady violation amounted to federal constitutional error.
“… And so the issue, as you have just framed it a moment ago and as the Fifth District Court of Appeals did as well, is as follows: This court’s directed to determine whether the use of the invalid priors in that second trial was harmless beyond a reasonable doubt.”
The court noted that Mr. Aed argued it was a close case because of the first jury’s inability to reach convictions on the same counts. The court disagreed with defendant’s view of the case.
“In this Court’s view, this was not a close case.· Based on my recollection of the evidence, it was not a close case. I’m going to summarize as I recall it and then I’ll allow you to review in the trial record in this case the following:
“Prosecution evidence – first of all, this case began with the discovery by a witness who testified in the case of, essentially, photographs of a nine-year-old victim’s naked private parts on the defendant’s cell phone. That’s what triggered the report to the police. Those – those photos were admitted in evidence and seen by the jury in this case. In addition, the jury saw a videotaped statement made by the defendant to the police following his arrest in which he said, I believe, several things. One was he admitted that he engaged in improper touches of the victim’s private parts. He admitted having possession of photographs of her private parts on his cell phone. He asserted that the victim herself took that photographs, not him. He also contended that it was the victim who initiated this touching, not him. That was seen by the jury. That was presented as evidence to the jury both by the videotape itself, as well as the testimony of the officers. In addition, the victim herself, of course, testified. She described the defendant engaging in the sexual acts that are the basis of the conviction in this case. She also identified herself from that photograph that was taken from the defendant’s phone as being her. That’s just a part, of course, of the prosecution evidence.
“The defense in this case, the defendant testified at the second trial. I’ll be honest with you, I don’t know whether he testified at the first trial, but, of course, it’s a fact that he testified in the second trial that has led us all to be here on this remittitur. In his testimony before the jury, after having heard all that evidence, he denied ever touching the nine-year-old in any improper way. He denied having any photograph of her on his cell phone. He denied knowing how any of those photographs might have gotten on his cell phone. I would note, obviously, completely inconsistent with the videotaped statement that he made to the police shortly after his arrest. He was confronted in the trial with his videotaped interview. He testified that the officers who did the interview confused him. That he got angry with them at some point during the interview and that’s why he made the admissions that he made, but testified that none of those things were true. I think it was also important -- and this, again, is based on my recollection, not some review of the transcript. Of course, the jury was able to view the defendant and his demeanor in the courtroom, as well as that of the interviewing detective to evaluate these allegations about having exasperated or confused him. I believe it was his testimony at trial that, in fact, the photographs of the naked female body parts on his telephone were an ex-girlfriend. An adult ex-girlfriend, not the nine-year-old victim in this case.
“I think the importance of all that is this jury had adequate opportunity, in my view, to evaluate the credibility of his testimony. Of course, what’s brought us here is that when defense counsel asked the defendant if he’s ever been convicted of a crime, after the Court having already ruled that the conviction from the previous case that was a hung jury would not come in evidence, counsel invited that inquiry, which led the district attorney, of course, to impeach the defendant with the fact that he had indeed been convicted. It wasn’t limited it that, however. That impeachment was not only the fact that he suffered a conviction, which it turns out was invalid because of the Brady violation, but he also testified in the presence of the jury he had never testified before a jury before – and now I realize from that recollection – which, in fact, was also false. There was some attempt, which the court of appeals has concluded was a tactical decision on the part of defense counsel, to suggest to the jury that the defendant’s testimony before them, perhaps, was he was nervous and some explanation about his behavior during the course of his testimony. And in response to the question whether he testified before, the defendant denied ever testifying before a jury. And, of course, the prosecution, correctly, was allowed to impeach the defendant with the fact that he testified in the first trial in this very case. All of that, by the way, having been brought to the attention of the jury because of the defense having initiated that examination, really inconsistent with the pretrial rulings by the Court and the pretrial agreement of counsel not to talk about what happened in that first trial other than there had been a first trial.[ ]
“Invited error is not a [principle] that applies here in this Court’s view. And the court of appeals has already made the decision about whether or not such conduct constituted ineffective assistance. But all of that, I think, is important to reflect upon for the simple reason that this was not a close case. And whatever consequence there may have been for that jury to hear about the prior conviction from the earlier trial, it seems to me would be so minimal that there’s really no argument to be made from the evidence in this case that constitutional error in allowing his impeachment with that conviction from the previous trial is anything other than harmless beyond a reasonable doubt. It’s this Court’s view that’s exactly what it is, harmless beyond a reasonable doubt. And for that reason, therefore, it’s the Court’s tentative ruling to deny the motion for new trial. That’s tentative and I’ve reflected it. As I said, I haven't really had a chance to look at a transcript or remember in detail from several years ago.” (Italics added.)
Mr. Aed advised the court that he did not have access to the transcript for defendant’s first trial, and he did not know about certain evidentiary issues, such as the nature of defendant’s testimony and whether the cell phone photographs were introduced to the first jury. Mr. Aed believed these issues were relevant to his argument that the first jury heard the same evidence, excluding the Brady material, but it was unable to reach verdicts on counts I and II.
The court stated:
“Well, I’m not going to guess at it, either, but I did not want to make it clear in the ruling here that there is no doubt from the Fifth District Court’s opinion that there was, number one, a Brady violation. The People conceded it later on, even though it perhaps could have been arguably apparent to defense counsel. That’s what appellate counsel argued in the second trial. Nevertheless, there’s a clear Brady violation. So the use of that impeachment was constitutional error. There’s no question about that either, which is why the standard that I discussed here applies. The other thing … is … again, I’m trying to reflect on this from years ago – but I believe it’s very clear from the appellate court opinion that the defendant, in fact, did testify at the first trial. They even put a portion of the transcript of that trial in there, noting that during the course of the second trial, Mr. Mugridge having asked his client if he ever testified before in front of a jury and he answers no, that after the jury is sent out the confrontation is had about, well, counsel, that’s not true. Because Ms. West, of course, had done that first trial and knew that he testified. And so I don’t think there’s any question he testified. What he said, of course, I don’t have a transcript of either of those trials.” (Italics added.)
The court stated that they would “just play it out as best was can here” at the next hearing.
The court’s denial of the new trial motion
On February 19, 2015, the court reconvened the continued hearing on the new trial motion. Mr. Aed was present with defendant. Mr. Shabaglian said he did not prepare any written opposition, but continued to oppose the motion and submitted the matter on the court’s tentative ruling.
The court stated it had already set forth a detailed tentative ruling “based upon the facts as I recall them.” The court assumed that both Mr. Aed and Mr. Shabaglian had “the transcript from the court of appeals as to the actual evidence presented before the jury.” Mr. Aed said he had a transcript but had not conducted an in depth review.
The court again stated that the error was harmless beyond a reasonable doubt “based upon the weight of the evidence as I perceived it.” The court asked the parties whether its recollection about the second trial and evidence was erroneous in any way. Mr. Aed said no. Mr. Shabaglian said he had not reviewed the record but again submitted the matter “based on the Court’s reputation.”
The parties’ arguments
Mr. Aed argued the court should grant the new trial motion and attacked the court’s tentative ruling as to whether the error was harmless beyond a reasonable doubt under Chapman. Mr. Aed asserted that Chapman placed the burden on the People to “present evidence before the court to establish facts and circumstances in the court’s ruling that it’s harmless beyond a reasonable doubt, and the People have not submitted any response in this case.”
Mr. Aed argued the error was not harmless, and noted that the jury in the first trial was unable to reach a decision on the more serious charges in counts I and II. The first jury did not hear the Brady evidence about M., and defendant was not impeached with any prior convictions at the first trial.
Mr. Aed argued that as a result of the first appeal, the issue before the court on remand was whether the use of the prior convictions from the first trial, to impeach defendant’s testimony at the second trial, was harmless beyond a reasonable doubt since those prior convictions had been reversed for Brady error. Counsel argued the constitutional error was not harmless:
“… I don’t see how the Court could determine anything other than the error was of significant proportion and therefore was not harmless beyond a reasonable doubt. Because there’s been two trials in this case, and in one of the trials there were – there was doubt. There was reasonable doubt, at least in the minds of some jurors, which led to the inability to reach a decision in this case. So for this Court to make a determination that based upon the second trial when inadmissible evidence was admitted, and not necessarily due to the information that the court knew at the time it made those rulings, I don’t see how there could be any plausible or reasonable argument that the error was harmless beyond a reasonable doubt.
“I didn’t have the benefit, in the transcripts that I had, of determining whether or not there were requests by the prosecution in the second trial to argue [Evidence Code section] 1108-type of evidence.· I don’t know that.· I don’t know ultimately because I did not have a copy of the jury instruction conference or the instructions that were requested in the trial before this·Court. If there was [section] 1108 evidence that was admitted and if there was argument as to the issue of [section] 1108, I think that would be even further evidence that the error was not harmless beyond a reasonable doubt.
“You know, this is a difficult case. This Court did hear the evidence in the case; I did not. The Court – but I will say that two separate juries on the facts and circumstances related to this case listened to the evidence and in the first case, regardless of how it occurred, there was no conviction. Whether or not it was because of a mistrial or a granting of a motion for new trial, when you look at it in a vacuum there was no conviction on the first trial and there was at least some doubt in the eyes of the jury in the first trial, and in that first trial that jury did not have any evidence of prior convictions and that jury was precluded from hearing evidence of Brady material. And in the second trial, the Court did allow evidence of the prior conviction in order to impeach Mr. Orozco-Ramirez, the Court did allow some Brady evidence to be presented during that trial, but ultimately there was a conviction.”
Mr. Aed reviewed the sequence that led to the impeachment of defendant at the second trial, noted that defendant’s trial attorney made the tactical decision not to object to the prior convictions from the first trial, and addressed the prosecutor’s attack upon his credibility.
“Ms. West argued that [defendant] was not to be believed and his testimony should not be believed. It should be given very little credit because of the fact that he had a prior conviction for what I would consider to be not only impeachable conduct, but similar character conduct that, at least under my understandings of [section] 1108, would be admissible for purposes of determining whether or not [defendant] was the type of person that would commit this type of conduct. The only thing I haven’t been able to confirm is whether or not that, in fact, was argued because I don’t have the transcripts in any of the material that I have to support that contention. I just don’t see, under any view of the facts in evidence in this case that I’ve known, that a court can make a determination that the error was harmless beyond a reasonable doubt. There’s been two trials and there’s been a – there was doubt in at least one of them. So I would say at this point we’re at a 50 percent conviction rate, so to speak, or agreement as to two separate juries who heard essentially the same facts and circumstances of the case, but for the prior convictions that were admissible in trial two and not hearing the Brady material in trial one.”
The court asked if the parties knew the numerical division of the first jury that was unable to reach verdicts. The parties said they did not know.
The court asked Mr. Shabaglian if he had any comments. Mr. Shabaglian submitted the matter on the court’s tentative ruling, and argued that Mr. Aed had not questioned any of the court’s prior factual findings and it was not a close case because the defendant admitted to “touching; he admitted to possessing the photos that were on the phone that showed the victim in the sexually compromising situation; his lie was that the victim initiated this; the victim testified about the sexual acts; the victim identified herself on the phone, and other reasons the Court gave….”
Mr. Aed believed defendant testified at the first trial, and the court agreed that he did. Mr. Aed said that while the court believed it was not a close case, such a conclusion was based on defendant’s testimony in the second trial. “It’s my understanding he did, in fact, testify in the first trial. Presumably, similar issues related to inconsistencies or statements that were about [defendant’s] admissions were considered by that first jury and ultimately were rejected, at least by some of those jurors in the first trial.”
The court replied that the first jury could have been unable to reach verdicts because of only a single juror. Mr. Aed said it did not matter because the jury was not able to reach verdicts on the two counts in the first trial, and “one juror is simply enough.” Mr. Aed continued:
“[H]armless beyond a reasonable doubt essentially means that there would be no reasonable doubt, and unless there’s a finding that whatever jurors were hung in the first trial were unreasonable in their findings or inability to find [defendant] beyond all reasonable doubt, we’ll never know that. We’ll never know unless a finding could be made in that regard. I just don’t see how looking at the case in the posture that it’s in now, there’s a logical basis or a sound basis to make a determination that the error was harmless beyond a reasonable doubt.”
The court’s denial of motion
The court denied defendant’s new trial motion:
“I’ve already stated, I think, at some great length in the last occasion we were in court here the basis for the Court’s tentative ruling to deny the motion for new trial. And frankly, nothing that I’ve heard here this morning has changed my view on that subject. We could speculate about what happened in that first trial, but, fundamentally, the issue of the first trial is unimportant or at least unpersuasive on what happened in the trial that I conducted. I heard the evidence. Of course, it’s true that the defendant was impeached, among other things, with the fact of what became ultimately an unconstitutional prior conviction. Nevertheless, the jury also heard in that second trial, unlike the first, all the things that attacked the credibility of the victim in this case who identified him as the perpetrator in this matter. So overall, it seems to me that if there’s a construct to make of this, that the second trial was in fact more fair to the defendant in allowing the impeachment of the victim in a fashion that did not occur in the first. How the jury might have been hung in that first trial and what their reasons for a hung jury, there’s no way for any of us to know, as you point out. But it seems to me the fundamental question is whether the defendant here received a fair trial and whether this – what became an error in this case was harmless beyond a reasonable doubt….” (Italics added.)
DISCUSSION
We turn to the issues raised in defendant’s appeal from the superior court’s denial of his motion for new trial as to his convictions in counts I and II from the second trial.
First, defendant contends the court’s ruling must be reversed because the People failed to file any opposition to meet its burden to prove the constitutional error was not harmless beyond a reasonable doubt. As a related issue, defendant argues the court’s findings are not entitled to deference because it stated that it had not reviewed the transcript and relied on its recollection of the evidence at the second trial, and it failed to consider certain matters that occurred at the second trial.
Next, defendant contends that the court relied on an erroneous standard when it decided to deny the new trial motion, and it failed to properly apply the Chapman standard of review to determine whether the error was harmless beyond a reasonable doubt, and failed to consider how the People relied on this impeachment to attack defendant’s credibility.
Finally, defendant argues that as to the merits of the motion, the People’s impeachment of his testimony at the second trial with the two constitutionally invalid prior convictions was not harmless beyond a reasonable doubt based on the nature and circumstances of the evidence and the People’s argument at the trial.
The People acknowledge that this court remanded the matter for the determination of whether the impeachment of defendant’s testimony with the prior convictions was harmless beyond a reasonable doubt under Chapman, and that any error was harmless because it was not a close case. Nevertheless, the People also assert that this court must review the superior court’s denial of defendant’s new trial motion under the deferential abuse of discretion standard. The People further assert defendant failed to establish prejudice or show the superior court abused its discretion.
A. Standard of Review
It is well-recognized that when reviewing a trial court’s ruling on a motion for new trial, appellate courts apply the deferential abuse of discretion standard. (People v. Howard (2010) 51 Cal.4th 15, 42–43.) However, it is important to note the circumstances under which this matter was remanded to the superior court. Defendant’s first trial was marred by the Brady violation based on the People’s failure to disclose that M. had falsely accused another man of sexually molesting her. The superior court properly granted defendant’s motion for new trial for counts III and IV from the first trial because defendant’s constitutional right to due process was violated by the Brady error.
In defendant’s prior appeal, this court found that once the superior court granted a new trial as to counts III and IV from the first trial, defense counsel was ineffective for failing to also file a motion for new trial as to counts I and II from the second trial, since defendant’s trial testimony had been impeached at the second trial with the prior convictions that had been found constitutionally invalid. We further found counsel’s ineffective assistance was prejudicial because a new trial motion might have been meritorious.
We remanded the matter for defendant to file a motion for new trial as to his convictions in counts I and II from the second trial. We directed the superior court to determine whether the impeachment of defendant’s testimony at the second trial with the two constitutionally invalid prior convictions from the first trial was harmless beyond a reasonable doubt under to Chapman. (People v. Orozco-Ramirez, supra, F063817, at pp. 42–44.) Neither party filed a petition for rehearing or review to challenge this order.
On remand, the superior court acknowledged that it was bound by the Chapman standard to determine the prejudicial impact of the error, and concluded the error was harmless beyond a reasonable doubt. We will thus review the proceedings on remand to determine whether the error was harmless beyond a reasonable doubt.
“Under Chapman, a federal constitutional error is harmless when the reviewing court determines ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ [Citation.] When there is ‘ “a reasonable possibility” ’ that the error might have contributed to the verdict, reversal is required. [Citation.]” (People v. Aranda (2012) 55 Cal.4th 342, 367 (Aranda).) “The reviewing court conducting a harmless error analysis under Chapman looks to the ‘whole record’ to evaluate the error’s effect on the jury’s verdict. [Citation.]” (Ibid.)
“The question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. [Citation.] Harmless-error review looks, we have said, to the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279–280, italics added in original; People v. Lewis (2006) 139 Cal.App.4th 874, 887.
Defendant argues that the People had the burden to prove the constitutional error was not harmless beyond a reasonable doubt. However, the People never filed a formal opposition to defendant’ new trial motion, and simply submitted the matter on the court’s findings. Defendant asserts that by failing to state grounds in opposition, the People did not carry its burden of proving the constitutional error was harmless beyond a reasonable doubt.
The procedural history of the remand may explain the People’s position. As set forth in part IV, ante, the parties attempted to reach a negotiated resolution of this case before defendant filed the new trial motion. The court clarified that since this court had only conditionally reversed defendant’s convictions, the parties had to stipulate to the basis for granting a new trial motion before they could enter into plea negotiations. At that point, defendant filed his motion and the People verbally opposed it, clarifying that the People would not stipulate to a resolution of the new trial motion or a negotiated plea. At the hearings on the motion, the court repeatedly asked the People if more time was needed to file a formal opposition and the People declined. The People never filed a formal opposition to the new trial motion, and instead agreed with the court’s lengthy findings when the court ultimately found harmless error.
The review of a constitutional error under Chapman requires reversal of the conviction “unless the People can demonstrate that the error was harmless beyond a reasonable doubt. [Citation.]” (People v. Reese (2017) 2 Cal.5th 660, 671; People v. Jackson (2014) 58 Cal.4th 724, 748; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.) While the People had the burden and verbally opposed the motion, the failure to file written opposition is not fatal to the People’s position in this appeal. The superior court made lengthy findings that the error was harmless, the People concurred, and those findings are now before this court.
B. Relevance of Defendant’s First Trial
There are additional procedural points we must address before we reach the merits of this appeal.
At the hearings on defendant’s new trial motion, defense counsel argued the impeachment of defendant’s testimony at the second trial with the two constitutionally invalid prior convictions from the first trial, based upon the same victim, was not harmless. Defense counsel argued that the constitutional error was prejudicial because defendant was not impeached with any prior convictions at the first trial, and that jury had been unable to reach verdicts in that case on counts I and II.
The superior court discounted defense counsel’s efforts to draw contrasts between the evidence introduced at the first and second trials, and his argument that the impeachment evidence destroyed defendant’s credibility at the second trial. However, the court noted that M. was impeached with the Brady evidence at the second trial but not at the first. The court also stated that the first jury may have been unable to reach verdicts because of only a single juror, and found that “the issue of the first trial is unimportant or at least unpersuasive on what happened in the trial that I conducted.”
Defense counsel’s arguments on these points were relevant. In conducting a prejudice analysis for evidentiary errors, it is “persuasive that the first trial ended in a hung jury when deciding whether the error that occurred in the retrial was prejudicial. [Citations.]” (People v. Soojian (2010) 190 Cal.App.4th 491, 520; see, e.g., People v. Sergill (1982) 138 Cal.App.3d 34, 38–40; People v. Linder (1971) 5 Cal.3d 342, 346–348.)
In such circumstances, the courts considered defendants’ first trials in assessing evidentiary errors under “the less stringent” test of People v. Watson (1956) 46 Cal.2d 818 (Watson), and concluded the evidentiary errors in the second trials were prejudicial. (People v. Sergill, supra, 138 Cal.App.3d at p. 41; People v. Linder, supra, 5 Cal.3d at pp. 347–348.) We believe such an analysis is also relevant to determine prejudice under “[t]he more stringent Chapman test” for federal constitutional errors. (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1179.)
Also on remand, the court de-emphasized the significance of the results from a jury trial and stated a single juror could have been responsible for the first jury’s inability to reach verdicts on the more serious charges. However, defendant’s argument on this point was also relevant to a harmless error analysis. “Federal cases … have proceeded on the presumption that prejudice occurred if the absence of error would change a single juror’s mind. [Citation.]” (People v. Soojian, supra, 190 Cal.App.4th at p. 520, italics added.) For example, in Cone v. Bell (2009) 556 U.S. 449, 452, the court remanded the matter for a habeas hearing as to whether improperly suppressed evidence might have been material to the jury’s imposition of the death penalty. In doing so, the United States Supreme Court directed the lower court “to determine in the first instance whether there is a reasonable probability that the withheld evidence would have altered at least one juror’s assessment of the appropriate penalty for [the defendant’s] crimes.” (Ibid., italics added.)
In Duncan v. Ornoski (9th Cir. 2008) 528 F.3d 1222, 1245, the court found the defense counsel was prejudicially ineffective for failing to introduce certain evidence because there was a “reasonable probability that at least one juror would have harbored doubt about [the defendant’s] intent, and that undermines our confidence in the special circumstance finding.”
Thus, defendant’s arguments about the first jury’s inability to reach verdicts on counts I and II was appropriate, even if a single juror may have caused that mistrial.
C. Admission of Prior Felony Convictions
We ordered the matter remanded for the superior court to determine whether it was harmless beyond a reasonable doubt to impeach defendant with the prior convictions from the first trial, since those convictions were later reversed for the constitutional error resulting from the Brady nondisclosure.
As relevant to this issue, prior felony convictions are admissible and probative under several different circumstances. First, “[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court’s exercise of discretion under Evidence Code section 352. [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted.) At defendant’s first trial, he was convicted of count III, assault with intent to commit rape (§ 261, subd. (a)(2)); and count IV, commission of a lewd act on a child (§ 288, subd. (a)). Both offenses are crimes of moral turpitude and could be used to impeach the credibility of a witness’s testimony. (People v. Bonilla (1985) 168 Cal.App.3d 201, 205; In re Lesansky (2001) 25 Cal.4th 11, 17.)
CALCRIM No. 226 is the pattern instruction on determining the credibility of a witness. (People v. Anderson (2007) 152 Cal.App.4th 919, 934–936.) The introductory paragraphs state:
“You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. [¶] You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.”
The pattern instruction lists numerous factors for the jury to consider a witness’s credibility, including whether the witness admits to being untruthful, and whether the witness has been convicted of a felony. (People v. Anderson, supra, 152 Cal.App.4th at pp. 935–936.) The trial court has a sua sponte duty to give the substance of CALCRIM No. 226 in every criminal case, although it may omit factors that are not supported by the evidence. (People v. Horning, supra, 34 Cal.4th at p. 910; People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 883–884.)
As a related matter, “[c]haracter evidence, sometimes described as evidence of a propensity or disposition to engage in a type of conduct, is generally inadmissible to prove a person’s conduct on a specified occasion. [Citations.] This ban against admitting character evidence to prove conduct, however, does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity [citation], and does not affect the admissibility of evidence regarding the credibility of a witness [citation]. [Citation.]” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159; Evid. Code, § 1101, subds. (a), (b).)
In addition, Evidence Code section 1108 creates an exception to the exclusion of character evidence in cases of sexual offenses: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, subd. (a); People v. Nguyen (2010) 184 Cal.App.4th 1096, 1115–1116; People v. Villatoro, supra, 54 Cal.4th 1152, 1159–1160.)
CALCRIM No. 375 addresses the limited admissibility of evidence about the defendant’s prior acts that are admitted to prove motive, intent, identity or other factors pursuant to Evidence Code section 1101, subdivision (b). CALCRIM No. 1191 addresses evidence introduced under Evidence Code section 1108, and permits the jury to infer the defendant has a disposition to commit sex crimes based on evidence that he or she has committed other sex offenses, and that the jury may, but is not required to, infer from this predisposition that the defendant is likely to commit and did commit the charged offense. (People v. Reliford (2003) 29 Cal.4th 1007, 1012–1013; People v. Villatoro, supra, 54 Cal.4th at pp. 1167–1168.) The court does not have a sua sponte duty to give either instruction, but must give them on request when evidence of other offenses has been introduced pursuant to Evidence Code sections 1101, subdivision (b) and section 1108. (People v. Collie (1981) 30 Cal.3d 43, 63–64; People v. Falsetta (1999) 21 Cal.4th 903, 924; People v. Cottone (2013) 57 Cal.4th 269, 293, fn. 15.)
In general, however, “a court is not required to instruct sua sponte on the limited admissibility of evidence of a defendant’s prior crimes. [Citations.] Notwithstanding this general rule, we have recognized the possibility there might be ‘an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.’ [Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1094, original italics.)
Analysis
As we explained in our prior opinion in this case, defense counsel made a tactical decision at the second trial to withdraw any objections to the People’s intent to impeach defendant with the fact of his prior convictions from the first trial. Counsel apparently believed it would be advantageous for this jury to also learn that a prior jury had been unable to reach verdicts on the same charges. The People extensively cross-examined defendant about his initial denial that he had prior convictions or that he had previously testified before a jury. In doing so, the People relied upon this impeachment to undermine the credibility of defendant’s testimony that he never touched M., and that he lied when he made admissions to Detective Rodriguez.
In addressing the prejudicial impact of the constitutional error in this case, however, we are not bound by defense counsel’s tactical decisions or any matters of invited error. Instead, we must determine whether the impeachment of defendant’s testimony at the second trial with constitutionally invalid prior convictions from the first trial was harmless beyond a reasonable doubt under Chapman. Neither the superior court nor the parties challenged the nature of this finding during the proceedings on remand.
We further note that during the proceedings on remand, the superior court relied on its recollection of the evidence in finding the error harmless, and acknowledged it had not reviewed the transcript of the second trial. The court invited the parties to raise any objections if its recollections were inconsistent with the record, and the parties declined. On appeal, defendant complains that the court’s findings on these points are not entitled to any deference since it admittedly did not review the transcript.
Having reviewed the record of the second trial, however, we find the court’s recollections about the evidence at the second trial were accurate – the graphic nature of the photographs recovered from the cell phone, defendant’s pretrial statements to Detective Rodriguez and his eventual admissions that he touched M.; M.’s pretrial statements and trial testimony that consistently described certain sexual acts; the impeachment of M. with her prior false accusations that another man had sexually molested her in an unrelated case; and defendant’s trial testimony, in which he denied touching M., claimed the photographs showed an adult female acquaintance, and claimed that he felt pressured by Detective Rodriguez to falsely say certain things.
Also during the proceedings on remand, the court initially was not sure if defendant testified at the first trial, but subsequently clarified that he had testified at the first trial and discounted comparisons of the evidence from the first and second trials. It also discounted the impact of the first jury being unable to reach verdicts on counts I and II. Nevertheless, the court concluded the second trial was “more fair” to defendant because M. was impeached with the Brady evidence.
With this background in mind, we find the constitutional error at the second trial was not harmless beyond a reasonable doubt because of additional factors that the superior court did not address.
First, we review the court’s statements at the hearing on remand about an evidentiary ruling it made before the second trial began. The court correctly recalled that at the second trial, defense counsel decided to waive any objections to evidence about the first trial and defendant’s convictions from that trial. The court further recalled that defense counsel made this tactical decision “after the Court having already ruled that the conviction from the previous case that was a hung jury would not come in evidence,” and that counsel’s decision was “really inconsistent with the pretrial rulings by the Court and the pretrial agreement of counsel not to talk about what happened in that first trial other than there had been a first trial.”
As noted above, we have reviewed the transcript of the second trial and have not found this ruling. In any event, the court’s recollection that it made this ruling is not inconsistent with the record since it would have been made outside the jury’s presence, it was likely made in chambers before trial, and the court’s other findings on remand are supported by the evidence.
In light of the court’s recollection of that evidentiary ruling, it is important to note the sequence in which defendant was impeached with the convictions from the first trial and whether he had even testified before a jury. At the beginning of defendant’s direct examination, defense counsel asked if he was nervous and why. Defendant testified he was nervous because he had never appeared “before people like this,” apparently referring to the jury. Defense counsel asked him if he had ever been convicted of a crime. The prosecutor objected, and the court overruled it. Defense counsel again asked defendant if he had ever been convicted of a crime in Mexico, the United States, or anywhere else. Defendant said no. Defense counsel asked if he had ever been accused of committing a sexual crime. Defendant said no. The prosecutor again objected, the court excused the jury, and the prosecutor complained that defendant was misrepresenting what happened at the first trial.
At that point, defense counsel made the tactical decision to waive any objections to questions about the first trial. The court replied that if defendant wanted to put his character in evidence then he could do so, and defense counsel agreed.
Defendant’s direct examination continued, and counsel again asked if he had any prior convictions. Defendant said he had been convicted six months earlier, and he did not mention the conviction earlier because he thought “that maybe the jury should not know about it.”
On cross-examination, the prosecutor repeatedly impeached defendant with his initial denials that he had ever testified in front of a jury or that he had prior convictions of any kind. Defendant admitted he had not given truthful answers to those initial questions, but testified it was “because I didn’t know if I was to say about the other time,” “I didn’t know if I was to say if I had been in a trial before,” and he denied having a prior conviction because he did not know if he had been convicted or “if I should say it or not.”
Defense counsel returned to this issue on redirect examination and sought to show that the first jury had convicted him of some counts and failed to reach verdicts on other counts. In response to further questions, defendant testified that he initially said he had never been convicted by a jury because “[t]he other day or last week I heard like the judge said that that should not be revealed about the past trial. That’s why I said no.” Defendant testified he thought that he was not supposed to reveal that he testified before the jury during the previous trial, he was not trying to mislead this jury, and he was “just following what I had heard” from the judge. (People v. Orozco-Ramirez, supra, F063817, at p. 21.)
Defendant’s explanations for why he initially claimed that he had never testified before a jury and he did not have any prior convictions are consistent with the superior court’s recollection during the hearing on remand. In addressing defendant’s new trial motion, the court recalled that prior to the beginning of the second trial, it “already ruled that the conviction from the previous case that was a hung jury would not come in evidence,” and that counsel’s subsequent decision to waive any objections about the first trial was “really inconsistent with the pretrial rulings by the Court and the pretrial agreement of counsel not to talk about what happened in that first trial other than there had been a first trial.” If defendant was indeed following the court’s order, he was not being “untruthful” when he initially testified that he had never appeared before a jury and he did not have any prior convictions. It was only after that point when defense counsel withdrew any objections and made his tactical decision to ask defendant about the first trial.
Second, defendant was not simply impeached at the second trial with the two prior felony convictions of moral turpitude from the first trial. During cross-examination, defendant admitted that he had been convicted of a crime “related to this case” that was “[f]rom the last time.” Defense counsel asked defendant whether he was convicted in the last trial “of the counts which you are now facing with this jury,” and defendant said no. In closing argument, defense counsel declared that defendant was “tried by another jury and they hung.” (People v. Orozco-Ramirez, supra, F063817, at p. 35.) In rebuttal, however, the prosecutor clarified what happened at the first trial: “There is a little more to that. They did hang, but there was also a conviction.” (Id. at p. 36.)
Third, the jury at the second trial was never instructed as to how to consider or evaluate evidence that defendant had been convicted of offenses “related to this case” involving the same victim, or that such evidence was only relevant to impeach his credibility. Instead, the court gave a special instruction that highlighted the prejudicial impact of the prior convictions:
“[Y]ou now all know that there was a previous trial in this case. [Y]ou are not to speculate as to why the charges that are before you are being tried again. And in addition, you’re not to speculate as to the nature of any crime that the defendant may have been convicted of in that previous trial.” (Italics added.)
In case the jury missed the point during defendant’s testimony, this instruction advised the jury that there had been a previous trial in this case—a case that was obviously based on M.’s allegations that defendant sexually molested her, the charges were being tried again, and the jury could not speculate on the nature of the convictions that resulted from the prior case.
When considered with defendant’s testimony and the closing arguments, the jury was advised that defendant had testified at another trial, that trial involved M.’s allegations, the prior jury had hung on the counts that were being retried, but that same prior jury also convicted defendant of other charges based on M.’s allegations.
Fourth, the prosecutor at the second trial did not expressly argue that the jury could rely on defendant’s prior convictions as propensity evidence pursuant to Evidence Code section 1108, or evidence of defendant’s intent or motive under Evidence Code section 1101, subdivision (b). While the court gave a special instruction for the jury not to speculate about the nature of the crimes at the first trial, the jury was not instructed about how to consider this evidence or defendant’s possible confusion as to whether he could mention the first trial and the prior convictions.
As noted above, a trial court has a sua sponte duty to instruct a jury with CALCRIM No. 226, the pattern instruction on the numerous factors to evaluate the credibility of a witness, and to include those factors supported by the evidence. (People v. Horning, supra, 34 Cal.4th at p. 910; People v. Rincon-Pineda, supra, 14 Cal.3d at pp. 883–884.) The optional factors include: “Did the witness admit to being untruthful? [¶] What is the witness’s character for truthfulness? [¶] Has the witness been convicted of a felony?” (CALCRIM No. 226.)
CALCRIM No. 226 was given to the juries at both trials with an important distinction. At the first trial, the court included the factors as to whether a witness had a prior conviction or had been untruthful in his or her testimony, even though defendant was not impeached at the first trial with any prior convictions.
At the second trial, the court read CALCRIM No. 226 to the jury but did not include relevant factors that were clearly supported by the evidence – that the jury could evaluate a witness’s credibility based on whether the witness admitted to being untruthful or whether the witness had been convicted of a felony. The court had a sua sponte duty to instruct the jury on these factors stated in CALCRIM No. 226 since they were supported by the evidence, based on defendant’s direct and cross-examination testimony at the second trial, and those factors would have guided the jury to consider defendant’s prior conviction as to his credibility.
During the hearing on remand, the superior court stated that the jury was able to view defendant and his demeanor, and evaluate the credibility of defendant’s testimony. However, the court did not consider that jury was never instructed about how to consider defendant’s prior convictions “in a related case” to decide this particular case, or whether the jury knew the convictions were admissible to impeach his credibility, or to prove his propensity or intent to commit the charged offenses.
Fifth, the version of CALCRIM No. 226 given to the jury contained the only guidance on how to consider defendant’s prior convictions, and his testimony about those convictions and the prior trial, but could have added to the confusion. The instruction stated:
“If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or if you think the witness lied about some things, but told the truth about others, you may simply accept the part that is true and ignore the rest.” (Italics added.)
While this language was legally correct, it did not clarify how the jury should consider the evidence about defendant’s prior convictions or the first trial, and completely undermined defendant’s credibility given the absence of any other instructions on the point. The prosecutor extensively relied on this principle in closing rebuttal argument, when she cited the prior convictions to attack defendant’s credibility, and asserted defendant repeatedly lied to the jury about everything when he testified:
“… I’m going to say to you that he lied to you. I’m just going to straight out say it. He lied to you again and again and again.”
The prosecutor cited defendant’s claim that he thought he was following the court’s orders not to mention his prior convictions, and added:
“… [Defendant] was not following orders to tell you that he had never been convicted or testified before. There was no order from this court that you not be told that.” (Italics added.)
At this point, defense counsel objected. The court overruled the objection and instructed the jury that it heard the evidence, it could decide what it heard, and counsel could argue what they believed the evidence showed. The prosecutor resumed her rebuttal argument and again asserted there was never a specific order not to talk about it.
The court’s response to defense counsel’s objection is at odds with its recollections at the hearing on remand. As we have explained, in addressing defendant’s motion for new trial, the superior court correctly recalled the evidence introduced at the second trial, stated that it had previously excluded evidence about the first trial before defense counsel made the tactical decision to withdraw any objections, and found the jury at the second trial had ample opportunity to evaluate defendant’s credibility. In making these findings, however, the court failed to consider the impact of its previous evidentiary ruling on defendant’s initial testimony, the prosecutor’s impeachment and rebuttal argument, and the absence of even a pattern instruction that was applicable to these issues, even though Mr. Aed brought these issues to the court’s attentions at the hearings on remand.
At the second trial, when defense counsel initially asked defendant about whether he was nervous and if he had any prior convictions, the parties were still bound by the court’s apparent ruling that excluded evidence about the nature and circumstances of the first trial. At the hearing on remand, the court recalled that defense counsel waived any objections to evidence about the first trial even though it had previously excluded this evidence. Once defense counsel waived the objections, he again asked defendant the same questions and defendant replied that he had testified before and been convicted, but he thought he was not supposed to mention the first trial.
In light of defense counsel’s tactical decision, the prosecutor properly impeached defendant with the fact of his prior convictions. The prosecutor went further and impeached defendant with his initial testimony that he had never appeared before a jury and did not have any prior convictions. But according to the court’s recollection, defendant’s initial testimony about these points was made when the parties were still bound by the court’s ruling to exclude evidence about the first trial. During cross-examination, defendant repeatedly testified that he thought he was not supposed to talk about the first trial and the prior convictions.
As we have already explained, the prosecutor cited these inconsistencies in closing rebuttal argument, and argued defendant repeatedly lied to the jury about everything, rejected defendant’s claim that he was “following orders” not to talk about the first trial, and asserted “[t]here was no order from this court that you not be told that.” Defense counsel objected, and that objection again appears consistent with the court’s recollection that it had previously excluded evidence about the first trial. However, the court overruled the objection and instructed the jury that it had heard the evidence, it could decide what it heard, and counsel could argue what they believed the evidence showed.
While we have given deference to the superior court’s recollection of the evidence introduced at the second trial, its evidentiary rulings, and its finding that the jury had the opportunity to observe his demeanor and determine his credibility, the court failed to consider how this sequence undermined all aspects of defendant’s credibility. The prosecutor repeatedly impeached defendant’s credibility not just with the fact of a prior conviction, but with his initial testimony that he did not have any prior convictions and had never appeared before the jury. Defendant’s initial testimony on these points would have occurred when both parties were still bound by the court’s initial evidentiary ruling and before defense counsel made his tactical decision to waive his objections. Defendant’s initial testimony would have been consistent with the court’s recollection that it excluded evidence about the first trial, and would not have been “untruthful” under the unique circumstances of this case.
Nevertheless, the prosecutor relied on defendant’s inconsistent statements to argue that defendant lied to the jury about whether he had ever testified and if he had a prior conviction, there were no court orders to the contrary, and that he lied about everything. The prosecutor’s arguments were consistent with the only instruction the jury received about how to consider the evidence about the first trial and the prior convictions – the final paragraphs of CALCRIM No. 226, that if the jury decided that a witness deliberately lied about something significant, it could consider “not believing anything that witness says.”
There are additional considerations that show the constitutional error in this case was not harmless beyond a reasonable doubt. At the hearing on remand, the superior court disagreed with defense counsel’s arguments that compared the evidence from the first and second trials, but it noted that the Brady evidence of M.’s prior false molestation accusations were not introduced at the first trial, that evidence was introduced at the second trial and, as a result, the second trial was fairer to defendant.
As discussed above, it is relevant to compare the evidence introduced at the first and second trials, and the evidence was virtually identical: M.’s initial statements and her lengthy pretrial interview; defendant’s initial statements and his lengthy postarrest interview; the nurse’s testimony, and the cell phone photographs were introduced at both trials. Also at both trials, defendant testified and claimed he lied to Detective Rodriguez and tried to explain why he felt compelled to make certain admissions to him. There was obviously at least one juror at the first trial who found a reasonable doubt as to the more serious penetration charges, and that jury was unable to reach verdicts for counts I and II.
The two primary evidentiary contrasts between the first and second trials concerned the impeachment of M. with the Brady evidence, and the impeachment of defendant with his prior convictions. M. was extensively impeached at the second trial with the evidence that she made graphic accusations that another man who had lived in her family’s household had sexually molested her, and she admitted these allegations were false and she made the claims because the man had been mean to her. This evidence was obviously damaging to M.’s credibility.
But to the extent M.’s credibility was impeached, it was also bolstered by the sequence in which defendant was impeached with his prior convictions from the first trial. Defendant was not simply impeached with prior felony offenses of moral turpitude, but the jury learned that defendant was convicted of other offenses in a related case involving M. Given the sequence of the impeachment questions, the prosecutor’s closing argument, and the absence of appropriate instructions, the jury could have decided that M. was credible since another jury convicted defendant of committing other offenses against her.
In contrast, defendant’s credibility was completely undermined at the second trial, both by his confusion as to whether he should admit that he had testified in a prior case, his apparent compliance with the court’s initial evidentiary ruling, and the paucity of instructions as to how the jury could consider the prior convictions. The only applicable instruction given to the jury stated that if it found a witness deliberately lied about something significant, it could consider not believing anything the witness said.
On remand, the superior court found the constitutional error was harmless because of the impact of the evidence from the cell phone pictures, M.’s statements and testimony, defendant’s admissions to Detective Rodriguez, and his trial claim that he lied to Rodriguez. The superior court also found that the jury was able to view defendant and his demeanor in the courtroom, and evaluate his allegations that he felt he had to lie to Rodriguez, and concluded: “I think the importance of all that is this jury had adequate opportunity, in my view, to evaluate the credibility of his testimony.” The superior court acknowledged that defendant was subject to impeachment with the prior convictions and his inconsistent statements about the first trial, but held that whatever consequence there may have been for that jury to hear about the prior conviction from the earlier trial, “it seems to me would be so minimal that there’s really no argument to be made from the evidence in this case that constitutional error in allowing his impeachment with that conviction from the previous trial is anything other than harmless beyond a reasonable doubt.”
In reaching this finding, the court failed to address the absence of any instructions to the jury as to how to consider the evidence of the prior convictions from a related case involving the same victim, and the prosecutor’s argument that made defendant’s impeachment the centerpiece of the case. While the court may have presumed the jury relied on the prior convictions simply to impeach defendant’s credibility, the jury was never instructed on this point since that factor was omitted from CALCRIM No. 226.
We are thus compelled to conclude that the impeachment of defendant’s testimony with prior convictions that were constitutionally invalid was not harmless beyond a reasonable doubt pursuant to Chapman. Given that conclusion, we also find the superior court abused its discretion when it denied defendant’s motion for a new trial as to counts I and II.
DISPOSITION
Defendant’s convictions in counts I and II, and the sentences imposed therein, are reversed.
The matter is remanded for further appropriate proceedings consistent with this opinion.


POOCHIGIAN, J.
WE CONCUR:


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HILL, P.J.


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FRANSON, J.