Filed 8/17/20 P. v. Beal CA1/3
                  NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                DIVISION THREE


 THE PEOPLE,
             Plaintiff and Respondent,                                   A151336
 v.
 MICHAEL SCOTT BEAL,                                                     (Alameda County
             Defendant and Appellant.                                    Super. Ct. No. H58233)



         This is an appeal from judgment after a jury convicted defendant
Michael Scott Beal of nine counts of felony grand theft of real property with
enhancements for excessive loss and aggravated white collar crime.1
Defendant was sentenced to five years in prison and ordered to pay the
victim, N.J.,2 $476,000 in restitution. Defendant challenges the judgment on



        The trial court subsequently set aside the jury verdicts as to eight of
         1

these counts and dismissed them pursuant to People v. Whitmer (2014) 59
Cal.4th 733. In Whitmer, the court held that a defendant may be convicted of
multiple separate counts of felony grand theft even if committed pursuant to
a single overarching scheme. However, because, under the law that had
previously existed for decades, a defendant could only be convicted of one
count of grand theft under these circumstances, the court declined to apply
this new rule retroactively to the Whitmer defendant. (Id. at pp. 740–742.)
       Pursuant to California Rules of Court, rule 8.90(b)(4), we refer to the
         2

victim by her initials to respect her privacy.


                                                               1
several grounds,3 including prosecutorial misconduct that undermined his
state and federal rights to a fair trial and evidentiary errors.
      We conclude the prosecutor repeatedly used deceptive or reprehensible
methods that, given their cumulative impact, denied defendant his right to a
fair trial. We therefore reverse the judgment and remand for a new trial.
               FACTUAL AND PROCEDURAL BACKGROUND
      On December 21, 2015, defendant was charged by information with
nine counts of felony grand theft of property committed against N.J. between
January 1, 2007, and December 31, 2015 (first–ninth counts; Pen. Code,
§ 487, subd. (a)),4 and one count of forgery committed on June 2, 2011 (tenth
count; § 470, subd. (d)). As to the first, fifth, and sixth counts, it was alleged
defendant took property valued in excess of $200,000, $65,000 and $65,000,
respectively (former § 12022.6, subd. (a)). As to the first through the ninth
counts, it was alleged the underlying crimes constituted a pattern of related
felony conduct involving the taking of someone’s personal property by fraud
or embezzlement causing the person a loss in excess of $100,000 (§ 186.11,
subd. (a)(1)). The tenth count was subsequently dismissed pursuant to
section 1118.1. Trial began on December 5, 2016.


      3  Defendant raises four issues on appeal: (1) Did the prosecution
engage in an egregious pattern of misconduct or deceptive or reprehensible
methods to convince jurors of his guilt that prevented him from receiving a
fair trial? (2) Did the trial court prejudicially err by failing to grant his
motions for mistrial or abuse its discretion when failing to grant his motion
for dismissal, each of which was based on the prosecutor’s misconduct?
(3) Did the trial court prejudicially err when admitting into evidence
recordings N.J. made of her phone conversations with defendant or testimony
from five female witnesses regarding their romantic relationships with
defendant? (4) Does cumulative error warrant reversal?
      4   Unless otherwise stated, all statutory citations herein are to the Penal
Code.


                                         2
A.   Introduction.
      The facts of this case are cloudy and convoluted. The two primary
witnesses—defendant and his alleged victim, N.J.—presented vastly differing
accounts of the nature of their relationship, both personal and business, at
trial. When speaking to each other, they used a code language. They both
took pains to keep aspects of their dealings secret. They admittedly lied to
each other and others.
      That said, the fundamental issue in this case is the conduct not of
defendant or N.J. but of the prosecutor during trial. Simply put, the
prosecutor repeatedly crossed the lines of permissible professional conduct in
the jury’s presence, undercutting defendant’s right to a fair trial. However,
because prosecutorial misconduct is grounds for reversal for a new trial only
if prejudicial (People v. Brown (2003) 31 Cal.4th 518, 553–554), we must tell
the whole story, start to finish.
B.   Defendant and N.J.: Their Backgrounds and Relationship.
      N.J., in her early 50’s at the time of trial, began working independently
as a sex worker in her 20’s.5 She also earned money through her three years
of military service (1983–1986), recycling work, participation in focus groups
and other research programs, domestic service and panhandling. N.J.
managed to save quite a substantial sum of money with her earnings and
some inheritance, part of which she used to buy an ownership interest in her
mother’s house and, later, to pay off the house’s mortgage. With modest
personal expenses,6 she then placed the rest in an investment account at a




      5   N.J. refers to her work as prostitution.
      6  Her regular expenses consisted of a $20 disabled bus pass, $25 phone
bill, property taxes and food.


                                          3
large banking institution actively managed by a broker. Over the years, the
account grew substantially.7
      During this time, defendant was a police officer for the Hayward Police
Department, rising to the rank of sergeant in 2008. N.J. met defendant in
2002 while he was working undercover. Posing as a potential client,
defendant assisted in N.J.’s arrest for prostitution after she agreed to
perform oral sex for $40. N.J. later agreed to work as an informant for the
Hayward Police Department “to work [her prostitution] case off . . . .” She
worked as an informant supervised by defendant for about a year and a half.
According to defendant, the department stopped using N.J. as an informant
because of her rule-breaking and deceptiveness.
      In 2003, N.J. revealed to defendant that she had a sizable investment
portfolio worth “hundreds of thousands of dollars . . . .” Also in 2003, N.J.
began occasionally performing oral sex, for free, on defendant. N.J. testified
that she performed oral sex on defendant hundreds of times between 2004
and 2012 while he was on and off duty and in various places including his
vehicle and apartments. She kept track of how many times “[j]ust [as] a
score.” Defendant denied having sex with N.J.
      Around 2004, N.J. began helping defendant with his online business
selling decals, figurines and paints for an electric football game. According to
defendant, he hired N.J. for his business, which he started around 2000 or
2001, because she was destitute and needed help staying out of trouble. He



      7 When N.J. first started buying CD’s, money market accounts, and
other investment products in the 1990’s (at Great Western Bank, which was
acquired by Washington Mutual Bank), she primarily decided where to invest
her money after reading newspaper or magazine articles. Around 2008, after
Washington Mutual was acquired by Chase, N.J. began working with a
Chase portfolio manager.


                                        4
eventually agreed to let N.J. sell his products on her own, and she paid him
$4,000 for inventory. Defendant kept his business earnings in a PayPal
account and helped N.J. set up a PayPal account for her earnings. Defendant
had access to N.J.’s account. At first, defendant grossed about $12,000
yearly, but by 2006 he was grossing $22,000, receiving most payments in
cash, money order, or through PayPal.
      This collaboration stopped in 2006 or 2007, when N.J. returned to sex
work. In 2010 or 2011, defendant sold his internet business software for
$25,000.
C.   Defendant and N.J.’s Property Investment.
      In the mid-2000’s, defendant and N.J. began to discuss investing in
property together. Defendant told N.J. she likely would not be approved for a
loan because she did not use a credit card and lacked a credit history. He
convinced N.J. that he would have a better credit score if his own credit cards
were paid off. N.J. subsequently gave defendant nearly $10,000 in cash to
pay off his credit card debt. N.J. suggested that they purchase property
through a “ ‘C’ corporation,” which would cost them a fee but allow them to
hide their connection to the property. Defendant agreed to this plan.
      In 2007, N.J. gave defendant about $4,000 in cash for a down payment
or closing costs on some property. According to N.J., defendant subsequently
told her that they had purchased a 2,000-square-foot-plus house in Alameda
with four bedrooms and a guest cottage worth $2.3 million for around
$560,000 or $675,000.8 Defendant did not reveal the property’s precise
location, but he showed her some paperwork for their purchase with portions



      N.J. testified on direct that the house cost $675,000. On cross-
      8

examination, she testified that it may have been only $560,000 or $565,000;
however, she did not write down the exact amount.


                                       5
redacted. Beginning in July or August 2007, N.J. generally paid between
$1,300 and $1,500 each month for the mortgage.
      At trial, N.J. acknowledged that she had agreed that only defendant’s
name would appear on the title. N.J. also understood she would be investing
in the property “sight unseen” and would not initially be told of its location.
She trusted defendant because he was a police officer. According to N.J., the
initial plan was for the property to be rented. Once defendant retired,
however, they agreed that N.J. would move in and have her name added to
the title and the pair would get married.9 Rather than a marriage of love, it
would be primarily for the tax benefits. N.J. explained that once defendant
retired, “I was supposed to own half, yes, get half, yes.”
      In addition to making monthly mortgage payments, N.J. sometimes
gave defendant additional money to cover property expenses, including tax
assessments, repairs, and extra mortgage payments. These payments
included $5,000 to $7,000 in 2008 to repair the roof; $50,000 in 2010 to pay
down their mortgage and reduce their monthly payment; $140,000 in 2011 to
pay off her half of the outstanding mortgage; and $110,000 as a loan in 2012
to pay off his half of the mortgage (which he promised to repay). N.J. made
her last mortgage payment to defendant in January 2015.
      In his testimony, defendant disagreed with N.J.’s description of their
property deal in several respects. First, defendant denied telling N.J. the
house was in Alameda, explaining that, while she wanted a house in the East
Bay, he did not want to live near where he worked. Defendant chose
Modesto, although they had not discussed this location, because they were
priced out of the Peninsula. Defendant was prequalified for a mortgage on a


      Defendant told N.J. it was against department rules for them to
      9

marry while he was active on the force.


                                        6
house on Viader Drive in Modesto by a lender named S.N. S.N. did not
accept cash, so he recommended defendant obtain a “gift letter.” Defendant
obtained this letter from his then girlfriend, J.L.10 After closing on the
property, defendant’s ex-wife J.B. and their children moved into to N.J. and
defendant’s new house. He did not tell N.J. the property’s address because of
her intrusiveness but showed her a copy of one of the mortgage documents
with the address redacted. According to defendant, N.J. knew the house was
in Modesto because she snooped on his daughter’s social media.
      Defendant acknowledged the house was purchased with N.J.’s down
payment money. Per their agreement, N.J. was obligated to pay the monthly
mortgage and taxes through February 2015, after which defendant would
assume responsibility for these charges. He repaid N.J. for all or nearly all of
his half of the $75,000 down payment over time with no interest.
      Defendant also claimed N.J. had agreed that his ex-wife and children
would initially live in the house. When market conditions peaked, their plan
was to sell it, with defendant having the right to buy out N.J.’s interest.
They never agreed to marry or have N.J. live in the house. While N.J. could
add her name to the title at some point at her own cost, defendant did not
agree to joint survivorship because he wanted the house to go to his children.
      Defendant admitted this agreement was “very one-sided towards me”
but explained “[N.J.] agreed because she couldn’t have purchased the home
without me.” Defendant testified that, while the pair did not initially put
these terms in writing, in the fall of 2011, after the house was purchased,




      10Defendant lied on the loan application that he had no obligation to
pay alimony or family support, had not borrowed for the down payment, and
that no one else could claim an interest in the property.


                                        7
they drafted and signed a contract mostly written by N.J. No copy of this
contract was produced at trial.
D. The Pair’s Other Business Dealings.
      N.J. testified that she regularly loaned defendant cash for his personal
expenses, including in 2003 for gas and Christmas gifts for his children;
about $10,000 in 2006 to pay off credit cards; $10,000 in 2008 to buy a car;
several thousand in 2010 for car repairs and Christmas presents for his kids;
a “few thousand” in 2013 for medical-related expenses after he was diagnosed
with cancer; and $7,000 for dental work and vision correction surgery in
2014. She expected defendant to repay her for these items.
      Defendant disputed most of these “loans” but acknowledged they had
many business dealings over the years. Several times defendant invested
money with N.J. and generally received a return on it. For these
investments, defendant would take money from his internet business and
deposit it in N.J.’s PayPal account. Between 2008 and 2015, defendant
invested about $40,000 with N.J. This allowed her to take a percentage of his
return.11 N.J. sometimes charged him “a broker’s fee” when he took money
out that he had invested with her to cover a personal expense, such as the
$4,500 bill for his daughter’s teeth straightening. In addition, she sometimes
loaned him money on a short-term basis.
      Defendant disputed N.J.’s claims at trial that she once stole electronics
from a store at his direction and had her make “[h]undreds” of harassing
phone calls to someone called “ ‘douche bag’ ” at a phone number with a “408”
area code.




      11N.J. disputed defendant’s claim that he invested $40,000 (or any
other amount) in her Chase account.


                                       8
E.   The Ledger.
      Defendant testified at trial that N.J. kept a ledger in a notebook in
which she recorded all of their transactions. Defendant also testified that he
asked N.J. for a copy of it, but she never gave it to him.
      N.J.’s testimony at trial was unclear as to whether she recorded these
transactions. At one point, N.J. testified that she destroyed all records of her
loans to defendant in 2014; she later testified that, while “[h]e never signed
anything,” she kept some receipts or “scraps” of paper documenting these
loans. N.J. claimed some of these scraps could be in her house but most had
been thrown out. She never asked defendant for any receipts or to sign any
document indicating the amounts she gave him.
      At the preliminary hearing, N.J. testified at one point that she kept a
ledger of her financial transactions with defendant. Later at the same
hearing, however, N.J. testified that she did not know what a ledger was.
      At trial, no records of N.J.’s payments to defendant were produced.
N.J. nonetheless testified that every withdrawal listed on her bank
statements that she reviewed with the district attorney (which spanned from
2007 to early 2015) went to defendant except for some minor withdrawals.
She acknowledged twice in the past entering into financial deals with other
individuals that were put into written contracts that she saved. One such
deal was a $22,000 car wash investment in the 1990’s, and the other was a
$2,300 loan to a bus driver.
F.   The Investigation and Recorded Phone Calls.
      In February 2015, N.J. called the Hayward Police Department to find
out information about defendant and was upset to learn he had retired in
July 2013 without telling her. Defendant had said he would retire in 2018,
and at that point, they would marry and add her name to the title. After



                                        9
exchanging messages with the department, N.J. met with Sergeant David
Dorn of the internal affairs division and told him defendant was ripping her
off. After some investigation, the acting chief of police referred N.J.’s case to
the district attorney’s office.
      In March 2015, N.J. began meeting regularly with Inspector Jeffrey
Israel of the district attorney’s office. Earlier, N.J. told Inspector Israel in
voicemail messages that she was permanently disabled. She said that
defendant knew of her disability and that she feared him. She admitted
sometimes lying and being a “snoop.”12
      N.J. shared with Inspector Israel several recordings she had made of
her phone conversations with defendant. N.J. explained that defendant had
instructed her to use a code language in their conversations.13 For example,
when N.J. asked defendant, “ ‘What about the Mary deal,’ ” she was referring
to their agreement to get married and share title to their house; the term
“elixir” referred to her mortgage payment. She also told Israel that

      12 Both defendant and N.J. testified regarding her habit of making
harassing “crank” calls to “all kinds of people,” including defendant’s ex-wife.
In 2015, she called his ex-wife J.B. dozens of times, day and night, while
using a fake accent. She also impersonated defendant “[a]bout a dozen” in
phone calls to at least one financial institution where he had a credit card
account in order to obtain his personal information. Once, she called his
bank and was able to learn the address of his San Mateo apartment. Intent
on catching defendant in a lie, N.J. acknowledged “snooping” around in all
aspects of his life despite defendant’s insistence that she stop. N.J. also
acknowledged lying “in my ordinary life” and at times going “to great lengths
to get more money . . . .” According to N.J., “I don’t have to, but I might by
choice [do just about anything for $500,000].” She also described herself as
permanently disabled and once diagnosed with schizophrenia.
      13Defendant claimed N.J.’s explanations for their code words were
wrong or misleading because they had multiple meanings. “Marriage” or
“marry” meant putting her name on the title. He sensed during their calls
that she was making false or self-serving statements to set him up.


                                        10
defendant instructed her to use a blocked number when calling him, which
Israel confirmed.
         N.J. told Inspector Israel that their house was in Alameda, that
defendant promised to add her name to the deed after he retired, and that
she had seen a photograph of it. N.J. was surprised to learn from Israel that
defendant’s only property was in Modesto where his ex-wife and children
were living. N.J. had nothing to document their property except a 2014
property tax receipt. N.J. gave Israel bank statements that reflected her
cash withdrawals, which led him to conclude defendant had access to and
control over her account and was stealing from her. Israel believed defendant
had “no intention of ever giving her title, because he wants it to go to his
kids.”
         Israel directed N.J. to continue to record her conversations with
defendant on her cell phone.14 Israel surveilled one particular conversation
on April 9, 2015, when N.J. met with defendant at a fast food restaurant.
Defendant appeared suspicious from the start and asked N.J. if she was
wearing a wire. N.J. had promised to bring defendant money for the
mortgage and property tax bill, which were due. Defendant, in turn, had
promised to bring mortgage paperwork reflecting their balance. At the
restaurant, however, N.J. told him she was done giving him mortgage money.
Defendant told N.J. that he deleted the photograph on his phone of their
mortgage balance because he believed she was “ ‘setting him up.’ ” N.J. asked
several times for “ ‘the address,’ ” but defendant refused to give it. She
lamented having no paperwork of their investment despite paying him “ ‘half



        The court admitted over a dozen recorded phone calls between N.J.
         14

and defendant, some made on her own and others with Inspector Israel’s
help.


                                         11
a mil.’ ” Defendant replied nor did he. He also warned that if she did not pay
him within 10 days their investment would be in jeopardy.
      Israel continued to monitor defendant’s conduct after their meeting
ended and believed defendant was taking countersurveillance measures. To
ensure N.J.’s safety, Israel had them both followed.
G. The Experts.
      The prosecutor and defendant each called an expert to testify regarding
defendant’s and N.J.’s financial transactions. Michael Woo, a forensic
auditor, testified for the prosecution as an expert in certified forensic
accounting. After reviewing their financial records, Woo concluded defendant
received $476,457 in cash from N.J. between 2008 and 2014, a period during
which defendant spent $394,589 more than he earned and N.J. claimed to
have given him over $476,000.15 In Woo’s opinion, defendant got this extra
money by stealing or embezzling it from N.J.
      Woo acknowledged that because defendant and N.J. dealt in cash, it
was “very hard” to directly correlate her withdrawals and his cash deposits.
When asked whether he saw a correlation between the two, Woo responded,
“Some, not all.” Woo explained: “So if I see a 5,000, using your scenario,
coming out of [N.J.’s] account, am I going to see a correlating deposit of 5,000
on the same day, or day or two later? Maybe, maybe not. He could deposit it
in sequences. . . . It doesn’t have to be one deposit, 5,000, on that day or day
later. That’s the gem about cash; it’s liquid.” Ultimately, Woo counted
“[m]aybe less than a handful, at most,” of times that her withdrawals could


       Defendant’s expenditures during this time included $72,000 to
      15

purchase his house in 2011; $13,500 on roof repairs; $59,447 on mortgage
payments from 2011 to 2014; $62,384 to pay off his credit cards; $20,000 for a
used Hummer; $8,000 for a used Kia; a cash deposit on a new Land Rover;
and $14,379 on gifts for his girlfriends.


                                        12
be correlated with his deposits. However, defendant frequently deposited
cash into his bank accounts, which Woo found “very unusual” for a wage
earner. Woo also observed defendant would deposit cash in one account and
then withdraw it only to deposit it in another bank account, indicating he
may have something to hide. Woo also found it unusual defendant used cash
to make his credit card payments. Woo opined defendant’s credit union
account was a “slush account” serving no purpose but to disguise his
movement of money.
      The defense called Michael Sullivan, a self-employed certified public
accountant, to rebut Woo’s testimony. Sullivan reviewed defendant’s and
N.J.’s financial records from 2010 to 2014, acknowledging that he lacked
certain relevant information, including complete records from their PayPal
accounts. Sullivan found no direct connection between N.J.’s withdrawals
($486,000) and defendant’s cash deposits ($245,000) because the amounts
were “so wildly different.” Sullivan also found, contrary to Woo, that
defendant had a modest amount of residual cash for each year from 2010
through 2014 with the exception of 2011.
      Sullivan rejected Woo’s expert report as based upon an incomplete or
inaccurate computation of defendant’s income. Sullivan believed Woo ignored
defendant’s retirement payments and gross payroll receipts and incorrectly
assumed his alimony payments were drawn from his payroll. As a result, he
believed Woo underestimated defendant’s income by about $180,000.
H. Defendant’s Former Romantic Partners.
      The prosecution called five women, each of whom was one of
defendant’s former romantic partners, to testify regarding defendant’s
spending habits. The trial court instructed the jury to consider this
testimony only for the limited purpose of proving how much money defendant



                                      13
spent on his romantic partners; the details of their relationships were
irrelevant.
      Defendant’s ex-wife J.B. testified about the couple’s financial struggles,
including their 1999 bankruptcy, which she attributed to his “extracurricular
spending that I didn’t have a say [about].” After their divorce in 2007,
defendant paid her $3,000 monthly in family support. He later added $1,000
monthly so that J.B. could stay in her home. Eventually, J.B. had to sell it
because the mortgage rate climbed too high.
      Around 2009, while J.B. was renting property, she and defendant
discussed buying another Modesto house. The plan was for defendant to buy
the house and have J.B. live there rent-free until he retired and moved in, so
that he could have a reliable tenant. According to J.B, in July 2011,
defendant bought the Viader Drive house using cash from his online business
and Reno winnings. As planned, J.B. lived there rent-free until December
2014 while defendant continued to pay support.
      J.B. noticed defendant’s spending increased dramatically after their
2007 divorce. He bought expensive items for their house and children,
including furnishings, cars, and large cash gifts. Consistent with this
testimony, four women who dated defendant after his divorce—P.P., J.L.,
M.H. and J.M.—testified at great length regarding his habit of lavishing
them with expensive gifts. Among other things, he bought them jewelry,
watches, electronics, furniture, vacations, meals and, in one case, breast
augmentation surgery. Defendant also gave or offered to give money to these
women; for example, he gave $1,800 to M.H. to cover her daughter’s college
expenses and $1,000 to J.M. for a deposit on an apartment. M.H. described
defendant’s habit of using cash for purchases and keeping large amounts of
cash at hand. Despite the court’s limiting instructions, several of these



                                      14
witnesses testified regarding the personal details of their relationships with
defendant. This included testimony from one witness that defendant broke
up with her on Valentine’s Day and testimony from another witness that
defendant unexpectedly broke up with her on her birthday. In addition, two
women similarly described defendant’s discussing marriage with them just
months into their relationships.
I.   The Prosecutor’s Conduct in the Trial.
      This trial was by all means contentious, with multiple motions for
mistrial and dismissal based primarily on charges of prosecutorial
misconduct, which will be discussed at length below. Initial deliberations
began on February 9, 2017, and continued over a six-day span. On
February 16, 2017, a juror was dismissed for illness and replaced with an
alternate juror. This reconstituted jury then deliberated at least seven more
days. On March 1, 2017, the jury found defendant guilty on all counts and
found true the excessive loss and aggravated white collar crime special
allegations.
      On March 29, 2017, the trial court sentenced defendant to an aggregate
term of six years. On April 10, 2017, defendant moved to recall his sentence
pursuant to section 1170, subdivision (d). On May 5, 2017, the court granted
this motion and resentenced him to a five-year aggregate term. In doing so,
the court set aside the jury verdicts as to the second through the ninth counts
and dismissed these counts pursuant to People v. Whitmer, supra, 59 Cal.4th
733, which held that under the law existing at the time of the charged
offenses (which is no longer valid law), the defendant could only be convicted
of one count of grand theft where he was guilty of multiple acts of grand theft
arising from a common scheme. On May 10, 2017, defendant noticed this




                                      15
appeal, and on May 23 the court ordered him to pay $476,000 in victim
restitution.
                                   DISCUSSION
      Defendant seeks review of several issues, one of which we conclude
requires reversal of the judgment. Specifically, the prosecutor’s cumulative
acts of misconduct were prejudicial on this record and entitle defendant to a
new trial. Accordingly, we singularly focus our discussion on the issue of
prosecutorial misconduct, which in this case consisted mainly of the
following: (1) misleading the jury about whether the prosecution offered
defendant a plea deal; (2) impugning defendant’s character by referring to
him in the jury’s presence as a “dirty cop”; (3) stating before the jury that a
“female judge” had found N.J.’s story credible at the preliminary hearing; and
(4) insinuating that the trial judge or the court had an improper relationship
with defendant. We address each of these acts in turn after setting forth the
governing legal standards.
I.   Prosecutorial Misconduct.
      “A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make
the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” (People v.
Morales (2001) 25 Cal.4th 34, 44; see People v. Samayoa (1997) 15 Cal.4th
795, 841.)
      Under these standards, “ ‘ “ ‘[a] prosecutor may “vigorously argue his
case and is not limited to ‘Chesterfieldian politeness’ ” [citation], and he may
“use appropriate epithets . . . .” ’ ” [Citation.]’ [Citation.]” (People v. Hill



                                          16
(1998) 17 Cal.4th 800, 819.) “But, while he [or she] may strike hard blows, he
[or she] is not at liberty to strike foul ones.” (Berger v. United States (1935)
295 U.S. 78, 88.) When the alleged prosecutorial misconduct stems from the
prosecutor’s remarks or comments made before the jury, “the question is
whether there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion.” (People v.
Morales, supra, 25 Cal.4th at p. 44.)
      Moreover, where prosecutorial misconduct is found, the question under
state law becomes whether such misconduct was prejudicial, that is, whether
it is reasonably probable a result more favorable to the defendant would have
occurred if the prosecutor had refrained from the misconduct. (People v.
Haskett (1982) 30 Cal.3d 841, 866.) Prosecutorial misconduct requires
reversal under federal law unless the misconduct was harmless beyond a
reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.)
      Here, defendant identifies numerous acts by the prosecutor that he
contends constituted a pattern of egregious misconduct that undermined his
federal and state constitutional rights to a fair trial. We describe these acts
and assess their impact below.
      A.   Misleading the Jury About Plea Discussions and Referring
           to Defendant as a “Dirty Cop.”
      The prosecutor responded to an answer given by defendant on cross-
examination: “And you know for a fact that I’ve always said I’m not pleading
a dirty cop for conduct he did on duty[.]” The People acknowledge this
statement was improper but insist it did no harm.
      We begin with the appropriate context. Defendant testified on direct
examination that he rejected a plea deal that would have released him from
jail in two months because he “wanted the truth to be heard.” Outside the
jury’s presence, the prosecutor accused defendant of lying about a plea deal


                                        17
and stated her intention to cross-examine him on the issue. Defense counsel,
in turn, noted that while there was no firm plea deal, offers had been
discussed. On cross-examination, defendant mentioned a letter he wrote to
the prosecutor stating that he wanted to “hear what she had to say . . . .”
Defendant explained writing this letter after retired Hayward Police Officer
George Torres told him a “mutual party” asked Torres to convey to him a
message that the prosecutor wanted to discuss a deal. After asking
defendant about this letter, the prosecutor made the statement at hand in the
jury’s presence—that she would not plead a “dirty cop”—after which the court
sustained a defense objection, warning, “Counsel, you’re testifying. You can’t
do that.” Later, out of the jury’s presence, the trial court put on the record
his observation that when the prosecutor made the objected-to statement, she
said “in a very loud and aggressive tone, very forceful, you know there’s no
way I’d plead out a dirty cop. It was a very angry tone, very, very loud
voice . . . .”
       The trial court took several steps to try to cure the prosecutor’s
impropriety. First, the court permitted retired Officer Torres to testify
regarding what he had heard about a plea deal for defendant.16 Second, the
court permitted defense counsel to testify regarding an email he received


       16Retired Officer Torres testified that Sergeant James Javier asked
him to convey to defendant that the prosecutor wanted to discuss a plea deal
because it would be improper for Javier, as an active duty officer, to convey
the message himself. Specifically, Torres testified: “[Sergeant Javier] said
that [the prosecutor] asked him [at a law enforcement social event] if he could
relay that information [about a potential plea deal] to Beal somehow. And he
told me that he told her no, that being an active Hayward Police member,
that he felt that it was a conflict of interest. Sergeant Javier then told me
that she had informed him or implied that maybe he could somehow get that
information to Beal. And shortly thereafter that encounter, Sergeant Javier
called me and relayed me the information that I provided this Court.”


                                        18
from the prosecutor about their plea negotiations and admitted the email into
evidence.17 Last, the court struck the prosecutor’s remark and advised the
jury: “[The defense] made an offer of proof that they had received an email
that included multiple offers . . . that directly contradicts Ms. Campbell’s
statement in court last week, and the email confirms the defendant’s
testimony that there was an offer.”
      The People respond on several fronts. First, they argue the
prosecutor’s statement about not offering defendant a plea deal was
technically true because there was no “firm offer.” Next, the People note
Torres’s testimony regarding what Sergeant Javier said about the
prosecutor’s request that a message be conveyed to defendant about a plea
was inadmissible double hearsay. Last, they argue the court’s ruling to
strike the prosecutor’s dirty cop remark and permit testimony on the plea
issue erased any harm.
      We reject these arguments. Regarding the veracity of the prosecutor’s
remark, the People claim it is “possible” she “meant to say” they had
discussed offers or that she would accept nothing less than felony convictions
and restitution. The jury, however, heard: “And you know for a fact that I’ve
always said I’m not pleading a dirty cop for conduct he did while on duty[.]”
We take the prosecutor’s words at face value rather than, as the People
suggest, retroactively assigning them a wholly speculative, benign intent.


      17 The court explained to the jury that “normally counsel is not
supposed to testify. But you heard [the prosecutor’s statement that there
were no plea deals] and the defense wants to present evidence. He has the
email contradicting that statement. . . . I asked the prosecutor if she wanted
to accept the stipulation that that email was sent. She did not want that
stipulation. So normally we don’t want lawyers to testify, but [defense
counsel] will be allowed to present the email, and as an officer of the court,
testify to when he received it and who he received it from.”


                                       19
More importantly, however, the relevant standard when assessing
prosecutorial misconduct is objective, not subjective. (See People v. Hill,
supra, 17 Cal.4th at p. 822 [“ ‘ “[I]njury to appellant is nonetheless an injury
because it was committed inadvertently rather than intentionally” ’ ”].)
      With respect to the People’s hearsay argument, we find it misplaced.
The People have not appealed the trial court’s admission of Officer Torres’s
testimony on hearsay grounds, and the issue is therefore not before us. In
any event, we are concerned here with the propriety of the prosecutor’s
statement, not Officer Torres’s.18
      The impropriety of the prosecutor’s “dirty cop” remark was serious,
violating three fundamental principles of fairness in the prosecution of
criminal defendants. First, the prosecutor’s remarks expressed to the jury
her personal and professional belief that defendant was a “dirty cop” and
therefore guilty—in the middle of trial. Indeed, spoken in the past tense
(“I’ve always said I’m not pleading a dirty cop”), the prosecutor’s remarks
suggested to the jury that she had decided defendant was a criminal before he
received a trial, and told him as much. (Italics added.) (See People v.
Sandoval (1992) 4 Cal.4th 155, 183 [prosecutorial misconduct to express a
personal belief in defendant’s guilt “ ‘in part because of the danger that jurors




      18 Defendant argues that Officer Torres’s testimony proved the
prosecutor also violated ethical rules by conveying a plea deal to him without
going through his counsel. The People respond that the prosecutor told the
trial court that, in fact, she had instructed Sergeant Javier not to convey an
offer. Sergeant Javier did not testify at trial, and the trial court made no
finding as to whether the prosecutor’s assertion was true. On this
undeveloped record and in the absence of any lower court finding, we decline
to decide here whether there was any ethical violation by the prosecution in
this regard.


                                       20
may assume there is other evidence at his command on which he bases this
conclusion’ ”].)
      Second, the prosecutor’s statement was, if not false, at minimum
misleading in expressing that a plea deal was out of the question because
defendant was “dirty.”
      And lastly, her remark strayed from the prosecutorial role of seeking
truth through the questioning of witnesses and the presentation of evidence,
effectively taking the stand as a witness and testifying to his guilt.19 Worse,
in doing so she referenced an alleged out-of-court conversation she had with
defendant suggesting she had inculpatory evidence to which the jury was not
privy. (See People v. Anderson (1990) 52 Cal.3d 453, 479 [prosecutor “is
generally precluded from vouching for the credibility of her witnesses, or
referring to evidence outside the record to bolster their credibility or attack
that of the defendant”].)
      This sort of damaging statement from the mouth of an officer of the
court during the evidentiary phase of trial in front of the jury is not easily
abated. As the California Supreme Court explains, referring to facts not in
evidence is “ ‘clearly . . . misconduct’ ” because such statements “ ‘tend[] to
make the prosecutor h[er] own witness—offering unsworn testimony not
subject to cross-examination. It has been recognized that such testimony,
“although worthless as a matter of law, can be ‘dynamite’ to the jury because
of the special regard the jury has for the prosecutor, thereby effectively
circumventing the rules of evidence.” [Citations.]’ [Citation.]” (People v.
Hill, supra, 17 Cal.4th at p. 828.)

      19The People repeatedly characterize the prosecutor’s statement as a
“leading question.” We know of no question that begins, as this one did, with
the phrase “And you know for a fact” then proceeds with a statement of said
“fact.”


                                        21
      Nor may a prosecutor “ ‘place the prestige of [her] office behind a
witness by offering the impression that [she] has taken steps to assure a
witness’s truthfulness at trial.’ ” (People v. Ward (2005) 36 Cal.4th 186, 215.)
Rather, a prosecutor’s assurances regarding the apparent honesty—or
dishonesty—of a witness must be based on the “ ‘ “facts of [the] record and
the inferences reasonably drawn therefrom, rather than any purported
personal knowledge or belief” . . . .’ ” (Ibid.)
      Here, the prosecutor’s questioning and argument took improper
advantage of her position as a representative of the government to insist
upon defendant’s guilt in a case in which defendant vehemently denied
committing any crimes. Moreover, as we will discuss in detail below, the case
against him was largely about credibility, and the two primary witnesses—
defendant and N.J.—both admitted lying about a multitude of relevant facts.
The fact that the jury deliberated at least seven more days after being
reconstituted with an alternate juror before reaching a guilty verdict
underscores the closeness of this case. (See People v. Rucker (1980) 26 Cal.3d
368, 391.) Accordingly, we agree with defendant the prosecutor’s dirty-cop
remark and misrepresentation regarding their plea discussions in front of the
jury constituted clear misconduct.
      B.   Testifying as to Another Judge’s Opinion of N.J.’s
           Credibility.
      Defendant next complains about the prosecutor’s “testimony” before the
jury that another judge had found N.J.’s story credible. The relevant context
is as follows. Defendant testified on cross-examination that N.J. had lied at
trial when testifying she did not keep a ledger of their financial transactions.
Defendant then pointed out that N.J. admitted having a ledger at the
preliminary hearing before retracting her testimony and insisted that when
she made her retraction “everybody [at the hearing knew] that she was


                                         22
lying.” The prosecutor on cross-examination responded with this statement:
“Except for the judge, the female judge, right?”
      The trial court, without striking the prosecutor’s remark, immediately
interjected, “I’ll take judicial notice of the preliminary hearing. All that’s
required is a strong suspicion of a crime, very low burden of proof.” Later,
the court reprimanded the prosecutor for challenging defendant’s testimony
that N.J. kept a ledger given N.J.’s preliminary hearing testimony, noting, “It
has to be corrected. It’s exculpatory evidence. You’ll be blocking exculpatory
evidence . . . .” In addition, the court belatedly (several days later) struck the
prosecutor’s statement, “Except for the judge, the female judge, right?” The
court then admitted and took judicial notice of the following testimony from
N.J. during the preliminary hearing:
      “ ‘Do you keep a written ledger to handle all those transactions?
      “ ‘Answer: For what he owed me and yes.
      “ ‘Question: Yes, you did keep a ledger? And that was in regards to the
property; right?
      “ ‘Answer: Part of it, yes.’ ”
      On appeal, defendant contends the prosecutor was “again testifying
through the guise of cross-examination, purportedly informing the jury that
there had been a judicial decision in [N.J.’s] favor.” Defendant also contends
the prosecutor violated her duty to disclose exculpatory evidence by
suggesting to the jury that N.J. did not admit keeping a ledger at the
preliminary hearing. The People acknowledge the prosecutor’s reference to
the judge who presided over the preliminary hearing was improper. The
People nonetheless insist the remark was a reasonable response to
defendant’s testimony that “everyone in the courtroom” knew N.J. was lying




                                        23
about having a ledger. The People also deny the prosecutor was testifying,
insisting she asked a legitimate—and harmless—“ ‘Isn’t it true?’ question[].”
      As discussed above, “ ‘[s]tatements of supposed facts not in evidence . . .
are a highly prejudicial form of misconduct, and a frequent basis for reversal.’
[Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 828.) Here, the “ ‘supposed
fact’ ” suggested to the jury by the prosecutor was that another judge had
believed N.J.’s testimony that she was the victim of defendant’s alleged
crimes. In fact, however, the judge had found only that probable cause
existed to bring defendant to trial on the charged offenses. While this legal
distinction may be easily grasped by lawyers, it is not easily grasped by
laypersons, even where, as here, the court admonished the jury that “a strong
suspicion of a crime, [a] very low burden of proof,” is required at a
preliminary hearing. The court’s admonition, which was vague if not
confusing, failed to explain to jurors how the “low burden of proof” at the
preliminary hearing differed from the beyond-a-reasonable-doubt standard
they were required to apply in this case.
      As before, we cannot disregard the prosecutor’s impropriety. The
evidence at trial regarding the existence of a ledger or any form of
documentation laying out the details of defendant and N.J.’s financial
dealings was hotly disputed. N.J.’s testimony, while internally inconsistent
at times, was ultimately that she kept no ledger but may have kept some
receipts or scraps of paper. Yet defendant vehemently insisted N.J. kept a
ledger or notebook in which she recorded each and every one of their
transactions. On the other hand, in a recorded conversation played to the
jury, defendant appeared to concede their dealings were unwritten: When
N.J. complained about having no documentation of their deal, defendant
responded neither did he.



                                       24
      Thus, given the vastly different versions of what happened in this case
presented by these witnesses, the issue of whether documentary evidence
existed to collaborate either side was quite important. It was therefore
misconduct for the prosecutor to tip the scales of justice by suggesting to
jurors that a “female judge” believed N.J.’s story.
      C.    Insinuating There Was an Improper Relationship Between
            the Trial Court and Defendant.
      Defendant also argues the prosecutor committed misconduct by
repeatedly insinuating with her words and behavior in front of the jury that
the court was biased toward or had an improper relationship with him. In
the clearest example of this, the prosecutor asked defendant in cross-
examination, “Were you friends with a lot of judges when you were a
Hayward cop?” The trial court sustained the defense’s objection and asked
the prosecutor if she wanted to be heard on relevance. She responded, “No.”
Once the jury was excused, the court expressed concern that the prosecutor
had suggested it had an improper relationship with defendant: “You clearly
created the impression. There’s no relevance for that, to say—there was no
relevance whatsoever to ask about are you friends with judges. [¶] You were
standing; you made a dramatic statement about it, and the clear implication
to this jury was I’m friends with Mr. Beal. That’s clearly improper.” The
court returned to the subject the next day, labeling the incident “objective[]
prosecutor misconduct” and adding that she had preceded her question with,
“ ‘This is totally out of context.’ ”
      Rather than address this incident head on, the People make much of
the court’s apparent misstatement that the prosecutor preceded her question
with, “ ‘This is totally out of context.’ ” Both sides agree the reporter’s
transcript does not reflect that the prosecutor made this statement. The




                                        25
record does, however, comport with the court’s broader observation that her
question was out of context.
      Nonetheless, the People rely on the court’s apparent misstatement to
argue judicial bias, insisting that in “recalling dubious details, it is clear that
the trial court’s own feelings [toward the prosecutor] shaded its memory of
what happened,” as evidenced by its “many rulings favorable to [defendant].”
They also note the prosecutor’s own explanation for her comment, to wit, that
she was not insinuating defendant and the judge were friends but merely
attempting to show that defendant was using his familiarity with the
criminal justice system to take advantage of it.
      We begin with the obvious. It was highly improper for the prosecutor
to invite the jury under the guise of questioning to infer there was any sort of
improper relationship between defendant and the trial court. There was no
evidence of an improper relationship between them even though the
prosecutor made clear she had investigated the possibility of one prior to
trial.20 In the absence of actual evidence, the prosecutor’s question raised the

      20 Out of the jury’s presence, the prosecutor placed on the record
evidence that the trial judge, former head of the district attorney’s office, had
given defendant at least one commendation for work he did as a police officer
for the district attorney’s office, once writing “ ‘attaboy’ ” on one of his
personnel records. The prosecutor expressed that she had no intention of
moving for recusal; she merely wanted to place this information on the record
because it could give the appearance of impropriety. The trial judge
responded for the record that he recognized defendant but had no specific
memory or opinion of him and did not recall giving him any commendation.
He further stated that giving commendations such as “attaboy” to officers
was something he “frequently and continuously” did. The judge also stated
that, while head of the district attorney’s office, he had some contact with the
Hayward police officers under his supervision but that it was insubstantial.
He had previously acknowledged his son was a San Leandro police officer
who had previously been with the Hayward Police Department but left due to
“some conflicts there.”


                                        26
possibility that the jury would assume she had undisclosed knowledge of such
a relationship. Clearly, a prosecutor, as a representative of the state, does an
immense disservice to his or her office and indeed the entire legal system
when, without evidence, he or she casts aspersions on the integrity of the
judicial process in front of the jury. As the highest court has explained, “[the
prosecutor] is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling
as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As
such, he is in a peculiar and very definite sense the servant of the law, the
twofold aim of which is that guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor—indeed, he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones.”
(Berger v. United States, supra, 295 U.S. at p. 88.)
      Although defense counsel’s objection to the prosecutor’s friends-with-
judges question was sustained, we conclude the prosecutorial misconduct in
this instance “added to the growing mountain of deceit and unethical
behavior in this case.” (People v. Hill, supra, 17 Cal.4th at pp. 829–830.) The
court described the prosecutor’s use of dramatic facial expressions, “sarcastic”
and elevated tones of voice and other physical manifestations to insinuate to
the jury that the court was biased against her—in this instance and a
multitude of others. (See People v. Peoples (2016) 62 Cal.4th 718, 793 [while
calling the prosecutor’s behavior “unprofessional,” the court stated that the
use of “colorful or hyperbolic language will not generally establish
prosecutorial misconduct”].) The trial court repeatedly addressed this
conduct, describing for the record the prosecutor’s “obvious signs of
displeasure” at the court’s rulings, including making faces to the jury,



                                       27
“smiling,” furious notetaking and other “bodily reactions that show shock and
anger”—all taking place in front of this jury.
      The court also felt compelled to make a record of the prosecutor’s
“threatening” and “aggressive” behavior outside the jury’s presence. Indeed,
at one point after the prosecutor returned to a subject matter repeatedly
ruled off limits, the court appeared to reach a virtual breaking point.
Directing the prosecutor to relevant legal authority, the court warned: “You
can preserve your point for appeal, but you’re not allowed to attack the
integrity of the judge or to be complaining about the rulings after they’re
made.”21


      21  A more complete recitation of the court’s admonition is as follows:
“[Y]ou continually—you accused me of being biased, and you stated at the
end, ‘I think I know why,’ at one point.
       “You’re obviously threatening to me. You turned around and said, ‘At
least I have a witness here.’ You automatically turned around and motioned
to your colleague. When you made those comments, you raised your voice
beyond what you normally do, very, very loud, very, very aggressive.
       “You pointed your finger at me and waved it at me repeatedly. At one
point while standing, you stomped your foot several times. You accused me of
turning my head. I did it immediately upon—I looked away from you the
moment you began attacking my judicial integrity.
       “I’ve repeatedly warned you. You’ve done that repeatedly. When we’ve
been away from the jury, you repeatedly attack my judicial integrity. Those
comments are contemptuous, and I’m not going to respond to them, because
you’re not allowed by law to make them. So there is no reason for me to
respond to them.
       “There’s a case I’ve cited already at length to you twice, People versus
Chong, [citation]. There’s also in re Lawrence Buckley, [citation].
       “ ‘The settled law of the state, if an attorney commits a direct intent
that impugns the integrity of the court made in open court either orally or in
writing, insolence to the judge and the forward insulting words or conduct,
the court has judicially recognized in the common-law as constituting
grounds for contempt.
       “ ‘The judge of the court is well within its rights to protecting his own
reputation from groundless attacks upon his judicial integrity, and it is his

                                       28
      The People insist the court’s irritation and criticism of the prosecutor’s
conduct simply proved it was biased in favor of defendant. Asking that we
not take “at face value” the court’s observations, the People accuse the court
of: (1) “repeatedly admonish[ing] [her] for asking [N.J.] leading questions”
while permitting defendant to “testify in practically narrative form on direct
examination”; (2) “unilaterally rais[ing] discovery issues”; and (3) “repeatedly
threaten[ing] to hold the prosecutor in contempt and to grant [defendant’s]
mistrial motions” and yet not doing so.
      We reject the People’s reframing of this issue as one of judicial bias
somehow justifying the prosecutor’s behavior in the jury’s presence. At no
point did the prosecution move for recusal. Instead, the prosecutor
repeatedly accused the court of bias, while declining its warnings and
suggestion that she file a formal motion. It is well established on appeal we
presume the trial court met its duty to impartially apply the law in the
absence of evidence to the contrary. (People v. Asghedom (2015) 243
Cal.App.4th 718, 725.) As this court advised: “[I]f the ruling is adverse, it is



duty to protect the integrity of the court. However willing he may be to
forego the private injury, the obligation upon him by his oath to maintain the
respect due to the court in which he presides.’
      “Also, Sacher versus United States, 343 US 1, at page 9. ‘If the ruling is
adverse, it is not counsel’s right to resist it or to insult the judge. His right is
only respectfully to preserve his point for appeal.’
      “You can preserve your point for appeal, but you’re not allowed to
attack the integrity of the judge or to be complaining about the rulings after
they’re made. There’s numerous insults. One of which is you stated on the
record here, ‘Everyone says you knocked this off Tom Rogers.’ That was an
insult.
      “Also, you’re to act respectfully. In court you’ve had continually
insolent and rude behavior by consistently making faces, expressing obvious
exasperations by rulings of the Court or admonishment not to ask leading
questions.” (Sic., italics added.)


                                        29
not counsel’s right to resist it or to insult the judge—his right is only
respectfully to preserve his point for appeal.” (Sacher v. United States (1952)
343 U.S. 1, 9.)
      Accordingly, we stay focused on the prosecutor’s conduct rather than
the court’s. Well-established rules of professional conduct dictate (among
other things) that a prosecutor “ ‘should support the authority of the court
and the dignity of the trial courtroom by strict adherence to the rules of
decorum and by manifesting an attitude of professional respect toward the
judge, . . . defendants . . . and others in the courtroom,’ ” and “ ‘comply
promptly with all orders and directives of the court, [while maintaining his or
her] duty to have the record reflect adverse rulings or judicial conduct which
he [or she] considers prejudicial.’ ” (People v. Hill, supra, 17 Cal.4th at pp.
832–833, citing ABA Project on Stds. for Crim. Justice, Stds. Relating to The
Prosecution Function and The Defense Function (approved draft 1971)
(hereafter ABA Standards), std. 5.2(a), (d).) Moreover, it is “ ‘unprofessional
conduct for a prosecutor to engage in behavior or tactics purposefully
calculated to irritate or annoy the court . . . .’ ” (People v. Hill, at p. 832,,
citing ABA Standards, std. 5.2(c).) “ ‘The gravity of the human interests at
stake in a criminal trial demands that the proceeding be conducted in an
orderly and dignified manner. . . . [¶] Rudeness and intemperance have no
place in any court, especially in the relations between its professional
members, the judge and lawyers.’ (ABA Standards, supra, com. to std. 5.2,
pp. 113–114; [citation].)” (People v. Hill, at p. 833.) The prosecutor’s
behavior toward the trial court and defendant in front of the jury violated
these professional standards.22



       Defendant argues the prosecutor engaged in further misconduct
      22

through her improper introduction of highly prejudicial evidence, including

                                          30
II. The Impact of This Misconduct Was Prejudicial.
      We are convinced the prosecutor’s multiple acts of misconduct
constitute prejudicial error under California law, as it is reasonably probable
a jury would have reached a result more favorable to defendant absent her
objectionable behavior. (Cal. Const., art. VI, § 13; People v. Haskett, supra, 30


an exhibit consisting of a photograph of N.J. with the inflammatory hearsay
caption “ ‘Beal’s ex-wife!’ ” and evidence of N.J.’s alleged mental illness. We
find no misconduct here.
       With respect to the prosecutor’s introduction of evidence relating to
N.J.’s mental illness or disability, in fact, defense counsel first introduced
such evidence when questioning N.J. about whether she told Inspector Israel
that she was permanently disabled and that defendant knew it. Defense
counsel later questioned N.J. about whether she had submitted a doctor’s
letter with a diagnosis of mild depression in an application for a discounted
bus pass. While the parties may have used evidence of N.J.’s mental health
for distinct purposes—defendant to paint her as someone who used sham
diagnoses for her own benefit (e.g., to obtain a discounted bus pass) and the
prosecution to paint her as a vulnerable and unsophisticated target for
defendant’s crimes—the prosecutor’s use of this evidence was not wrongful.
As the parties’ briefs illustrate, the evidence of N.J.’s mental health was
relevant not just to her credibility as a witness but also to defendant’s motive
when engaging her in financial dealings.
       Turning to the prosecutor’s introduction of allegedly improper hearsay,
the record reflects she questioned Inspector Israel about a photograph of N.J.
standing outside of defendant’s parked car with him seated inside that was
attached to an email sent by Steve Brown with the caption: “ ‘Beal’s ex-wife,’
exclamation point.” Defense counsel moved for mistrial, and the court
expressed concern that defendant had been ambushed by this evidence. The
court denied the motion but struck the photograph and caption as hearsay.
       This evidence is clearly inflammatory. However, the prosecutor had at
least a colorable argument that the photograph and caption were not offered
for their truth and were relevant to N.J.’s claims that she and defendant had
oral sex hundreds of times and that he had promised to marry her and move
her into their house after he retired. Moreover, the trial court sustained
defendant’s hearsay objection and struck the evidence, thereby curing its
potential prejudice. The defendant’s indirect challenge to this evidence as
prosecutorial misconduct is thus misplaced.


                                       31
Cal.3d at p. 866; People v. Herring (1993) 20 Cal.App.4th 1066, 1074.) The
principal witnesses, defendant and N.J., had wildly divergent accounts of
their financial dealings. Yet there was no documentation proving either
witness’s account despite the number and scope of their transactions, aside
from bank statements reflecting withdrawals and deposits that may or may
not have been connected depending on which expert one believed. As such,
the prosecutor’s misconduct cut to the very heart of this case: Was N.J. a
quirky and cunning but no doubt shrewd investor or a mentally unstable and
vulnerable victim of a manipulative cop? Even if we were to conclude the
harm arising from any one act of misconduct was harmless or likely cured by
the court’s responsive measures, we remain concerned with the cumulative
impact of the prosecutor’s actions. (People v. Herring, at p. 1075; People v.
Bell (1989) 49 Cal.3d 502, 533–534.)
      Despite conceding multiple acts of misconduct, the People insist any
cumulative impact was insignificant. They rely on a collection of supposedly
“overwhelming” evidence of defendant’s guilt that included: (1) bank records
reflecting N.J.’s withdrawals of $476,000 in cash as compared to the records
of defendant’s deposits and expenditures; (2) testimony exposing defendant’s
numerous lies about the nature and number of his financial dealings with
N.J., including his lies about the property’s Modesto location and why he kept
her name off the title; (3) testimony relating to his “extravagant spending”;
and (4) evidence of his “fictitious investments and frauds” that proved his
criminal intent, including his use of a “gift letter” executed by a former
girlfriend to make the property down payment and his false statement on the
loan application that no one else could claim an interest in the property.
      The People’s analysis omits key parts of the record less favorable to
their case. For example, the evidence does reflect that N.J.’s cash



                                       32
withdrawals totaled approximately $476,000 over a seven-year period.
However, experts Woo and Sullivan disagreed about fundamental facts,
including whether defendant spent approximately $395,000 more than he
earned during this time frame (Woo) or had a modest amount of residual cash
(Sullivan). Woo and Sullivan also disagreed about defendant’s total income
during the relevant time, with Sullivan opining that Woo underestimated
defendant’s income by about $180,000. Both experts agreed, however, that
would be very hard to directly correlate N.J.’s withdrawals and defendant’s
deposits or expenditures.
      Moreover, the prosecution’s theory hinges on a claim that N.J. gave all
of the cash she withdrew to defendant, not spending any on herself or anyone
else aside from a modest amount for her essentials. N.J. no doubt preferred
to deal in cash (as did defendant). However, the evidence did not necessarily
require a finding that all of her cash went to defendant. According to
Inspector Israel, N.J. told her banker that she was withdrawing money at
various times to pay for her house, her mother’s car and surgery, not to invest
with or loan to defendant. Further, Woo himself testified when opining that
defendant stole from N.J. that an individual that deals strictly in cash “tends
to have something to hide.” To the extent Woo’s observation bears truth, it
likewise applies to N.J.
      Further muddying the waters, as we have already discussed, there was
not a single receipt or other shred of documentary evidence linking any
particular withdrawal made by N.J. to an expenditure or deposit made by
defendant. And yet there was evidence that when N.J. entered into
investments other people, she kept a signed contract or other written record.
      We agree with the People the property deal between defendant and
N.J. was wholly one-sided in his favor. Yet, again, this evidence does not



                                      33
necessarily require a finding of guilt on the nine charged offenses. Defendant
and N.J. actually agreed on numerous aspects of their deal, including N.J.’s
half-ownership of the house and her willingness not to know the address or
not to have her name on the title. While to the average person this no doubt
seems odd, N.J. herself acknowledged wanting to structure the deal this
way—even suggesting they use a “ ‘C’ corporation” to maintain their
privacy—in order to access defendant’s credit. Thus, while a wealth of
evidence supported the prosecutor’s theory that N.J. was victimized by
defendant, the evidence could also support a view that N.J. was a shrewd
investor capable of amassing over $400,000 in her bank account while
working on the streets as a sex worker and in other menial jobs, including
panhandling and doing surveys.
      As to the overwhelming evidence of defendant’s lies and questionable
business dealings, equally overwhelming was the evidence of N.J.’s lies,
including her own admission that she lies in her everyday life. In addition,
there was substantial evidence that N.J. gamed the system by, for example,
obtaining a sham medical diagnosis to qualify for a discounted bus pass;
impersonated people over the phone and on social media to obtain bank and
other information about defendant; and harassed people (including
defendant’s ex-wife) with crank phone calls. The evidence of lying and deceit
thus runs both ways.
      Finally, we agree with the People there was a wealth of evidence that
defendant had an extravagant lifestyle and excessive spending habits. But
this evidence in and of itself did not prove that he committed any of the
charged crimes. Simply put, overwhelming evidence that defendant lived far
beyond his means cannot, by itself, be equated with overwhelming evidence
that he committed nine specific counts of felony grand theft.



                                      34
      The People refer to comments by the trial court describing the evidence
of defendant’s guilt as “ ‘overwhelming’ ” and opining there was “ ‘no question
that, in fact, he embezzled, he stole.’ ” However, the trial judge also said he
had “never seen [such conduct] by a defense attorney or a prosecutor in my
over 40 years. It’s unbelievable.” When defendant moved for a mistrial, the
court acknowledged it had “seriously consider[ed]” ordering one “throughout”
the trial, and yet decided against it, reasoning: “[Defendant]’s been in
custody 19 months. It’s a very difficult trial to have to do over again. It
would also be unfair. I don’t know where the money is coming from for his
defense.” Similarly, when considering a defense motion for dismissal the
court stated, “I’ve never seen such egregious conduct, and so it is a denial of
due process.” Nonetheless, the court denied the motion, noting that a
dismissal “won’t let him clear his name.”
      As this record reflects, the court was deeply troubled by what went on
during this trial, notwithstanding its apparent opinion that there was
substantial evidence that defendant “ ‘embezzled, he stole.’ ” Importantly,
however, the trial court was not the trier of fact. It was the jury called upon
to determine whether defendant was guilty beyond a reasonable doubt as to
each of the charged counts—after he received a fair trial. The trial court’s off-
the-cuff comments about the weight of the evidence are therefore not
determinative.
      At the end of the day, for the reasons stated, we conclude the
prosecutor violated state law by using “ ‘ “ ‘deceptive or reprehensible
methods’ ” ’ ” in attempting to persuade this jury of defendant’s guilt. (People
v. Samayoa, supra, 15 Cal.4th at p. 841; People v. Hill, supra, 17 Cal.4th at p.
845.) Some of her actions were simply mean-spirited and unprofessional;
others constituted betrayals of the trust placed in her as a public prosecutor



                                       35
tasked with seeking the truth rather than obtaining a conviction at all costs.
While it is true defense counsel objected to the most egregious instances of
her misconduct and the trial court adopted broad curative measures that no
doubt diminished the prejudice, the breadth and consistency of her
misconduct, we fear, impacted the jury’s ability to remain impartial. The fact
that the reconstituted jury deliberated at least seven more days before
reaching a guilty verdict underscores the closeness of this case.
      Accordingly, we conclude there is a reasonable probability that absent
the prosecutor’s repeated acts of misconduct the jury might have reached a
different result. (People v. Hill, supra, 17 Cal.4th at pp. 845–846 [“ ‘ “You
can’t unring a bell” ’ ”]; People v. Bain (1971) 5 Cal.3d 839, 849 [under the
circumstances where the alleged perpetrator and alleged victim were the sole
or primary witnesses and their testimony was “in sharp conflict,” there was a
“grave danger that misconduct of counsel may [have] tip[ped] the scales of
justice”].) Reversal is necessary to ensure defendant is afforded due process.
      Given this result we need not address defendant’s remaining
arguments, which are either moot or unlikely to recur in a new trial in their
present form.23


      23 In the parties’ briefs, it was agreed that the issue of the admissibility
of the over a dozen recordings of N.J.’s phone conversations with defendant
hinged on the applicability of Proposition 8, approved in 1982. On
December 19, 2019, the high court decided People v. Guzman (2019) 8 Cal.5th
673, which held that the state constitutional right to truth in evidence under
California Constitution, article I, section 28, subdivision (f)(2) abrogated the
prohibition in section 632, subdivision (d) against the admission of secretly
recorded conversations in criminal proceedings because, inter alia, the
statute did not fit within any express exception and the state constitutional
right to privacy was not affected. Accordingly, should this issue arise again
upon retrial, the trial court will have the benefit of this new binding
precedent. Further, with respect to the court’s admission of testimony from
defendant’s former romantic partners, defendant concedes it was relevant so

                                       36
                               DISPOSITION
      The judgment is reversed. The matter is remanded to the trial court
for a new trial.




long as limited to his expenditures of money. The court erred, he contends,
by permitting these witnesses “to testify at length, and emotionally, about
their unhappy relationships with [him].” If this issue arises again on retrial,
defendant may propose more appropriate limits on their testimony.


                                      37
                                            _________________________
                                            Jackson, J.


WE CONCUR:


_________________________
Siggins, P. J.


_________________________
Fujisaki, J.




A151336/People v. Michael Scott Beal




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