# People v. Bell > California Supreme Court · September 5, 1989 · 49 Cal. 3d 502 URL: https://www.frixlaw.com/law-library/cases/9855581 ## Case - **Full name:** The PEOPLE, Plaintiff and Respondent, v. RONALD LEE BELL, Defendant and Appellant - **Court:** California Supreme Court - **Decided:** September 5, 1989 - **Citations:** 49 Cal. 3d 502; 262 Cal. Rptr. 1; 778 P.2d 129; 1989 Cal. LEXIS 1602 - **Precedential status:** Published - **Opinion:** Dissent by Mosk - **Judges:** Eagleson, Kaufman, Arguelles, Mosk, Broussard - **Cited by:** 262 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855581 ## How later opinions describe it (automated extraction) - recognizing that "[w]ere statistical evidence of recurring disparity alone adequate to establish a prima facie violation of the cross-section guaranty, the third prong of the Duren test would be surplusage," and further noting that "[b]y including as an element of aprima facie… - observing that "it is one thing to say that a probability calculation is useful evidence; it is quite another to say that it embodies a constitutional standard" - stating that felons cannot possess a firearm, even after receiving a certification of rehabilitation - describing the different tests, but declining to adopt a particular one ## Opinion text MOSK, J. I dissent. When this cause was originally before us, I concluded in the opinion prepared for the court that the prosecutor’s misconduct at the guilt phase, although serious, did not subject defendant to prejudice. Having closely considered the question again after we granted rehearing, I must depart from my former view and conclude that the misconduct cannot be deemed harmless. The crucial issue at trial was the identity of the person who committed the crimes of murder, attempted murder, and robbery at Wolff’s Jewelry *558 Store on February 2, 1978. The prosecution set out to establish that defendant was the perpetrator through the testimony of three eyewitnesses. For its part, the defense attempted to show that defendant was not involved. It introduced evidence pointing to defendant’s brother as the culprit. Perhaps more important, it presented the expert opinion of Dr. Robert Shomer challenging the reliability of eyewitness testimony in general and specifically the eyewitness testimony relied on by the prosecution. As the discussion in the majority opinion demonstrates, the prosecutor engaged in misconduct that can only be characterized as deliberate and egregious. For example, reading from a police report as he posed a question to Dr. Shomer on cross-examination, the prosecutor put before the jury a double-hearsay statement by an unidentified informant that defendant “had been observed in possession of a small-barreled gun and was cleaning the weapon the day before the crime.” The prosecutor’s act was plainly intentional and just as plainly improper. Also, the prosecutor suggested to the jury that in People v. Guzman (1975) 47 Cal.App.3d 380 [ 121 Cal.Rptr. 69 ], the Court of Appeal implied Dr. Shomer’s opinion on the unreliability of eyewitness testimony was not worthy of belief. During cross-examination, he asked Dr. Shomer: “[D]o you agree [with the Guzman court] that your testimony should be placed in the category of polygraph operators, hypnotists, truth drug administrators, and purveyors of general psychological theories?” In closing argument, he remarked: “Okay. Just a couple more comments on Shomer. I can’t do any better than the Appellate Court did when they classified his testimony along with hypnotists, truth drug administrators, purveyors of general psychological theories.” The prosecutor’s characterization was clearly immaterial to the present proceeding—and even more clearly lacking in any support whatever in the opinion of the Guzman court (see People v. Guzman, supra, 47 Cal.App.3d at pp. 384-386). Of course, prosecutorial misconduct requires reversal if it subjected the defendant to prejudice. (See, e.g., People v. Bolton (1979) 23 Cal.3d 208, 214-215 [ 152 Cal.Rptr. 141 , 589 P.2d 396 ].) Generally, prejudice is not presumed but is determined “ ‘after an examination of the entire cause, including the evidence[.]”’ (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ], quoting former art. VI, § 4½, of Cal. Const., the predecessor of current art. VI, § 13.) Prejudice is found when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Watson, supra, at p. 836 )—or stated differently, when it is reasonably probable the error *559 marginally contributed to the outcome. A review of our cases reveals that “reasonable probability” as here used bears substantially the same meaning as the identical phrase employed to define the prejudice component of a claim of constitutionally ineffective assistance of counsel. A “reasonable probability” is not a probability that the error “more likely than not altered the outcome in the case” (Strickland v. Washington (1984) 466 U.S. 668, 693 [ 80 L.Ed.2d 674, 697 , 104 S.Ct. 2052 ]), but simply “a probability sufficient to undermine confidence in the outcome” {id. at p. 694 [ 80 L.Ed.2d at p. 698 ]). In my view, the misconduct committed by the prosecutor in this case must be considered prejudicial. To begin with, the issue of identity was not only crucial but also close. The record of the trial establishes the point. To be sure, the eyewitness testimony inculpating defendant in the crimes at Wolff’s Jewelry Store was not insubstantial. But also not insubstantial was the evidence exculpating him from responsibility. The closeness of the issue of identity is confirmed by the following fact; at this second trial the jury came close to deadlock on the second day of deliberations and arrived at its verdict only on the third; on substantially similar evidence, the jury at the prior trial was unable to reach a verdict on the murder, attempted murder, and robbery charges. Further, the prosecutor’s misconduct bore directly and heavily on the issue of identity. For example, his improper reading of the unidentified informant’s statement supported the challenged testimony of his eyewitnesses: “on the very eve of the events at Wolff’s Jewelry Store,” he insinuated, “defendant did not merely have possession of what may have been the weapon employed in the crimes, but was actually preparing it for use.” Also, his improper suggestion that the Guzman court implied Dr. Shomer’s opinion on the unreliability of eyewitness testimony was not worthy of belief undermined the defense challenge to his eyewitnesses. Thus, the prosecutor’s misconduct improperly strengthened his case on the crucial and close issue of identity and at the same time improperly weakened that of the defense. When as here the conflict between prosecution and defense is near to equal, such misconduct must be deemed to have had a prejudicial effect on the jury’s balancing of inculpating and exculpating evidence and on its consequent determination of the question of guilt or innocence. The majority, however, find no prejudice. The premise underlying their conclusion appears to be that the crucial issue of identity was not in fact close. But as shown above, the record is otherwise. It is true that defendant was identified by three eyewitnesses. But “[t]he vagaries of eyewitness *560 identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” (United States v. Wade (1967) 388 U.S. 218, 228 [ 18 L.Ed.2d 1149, 1158 , 87 S.Ct. 1926 ]; see generally People v. McDonald (1984) 37 Cal.3d 351, 363-365 [ 208 Cal.Rptr. 236 , 690 P.2d 709 , 46 A.L.R.4th 1011 ].) Moreover, the record shows that the testimony of the eyewitnesses in this case is of problematical reliability. The majority conclude no prejudice arose from the prosecutor’s improper reading of the unidentified informant’s statement that on the eve of the crimes in question defendant had a small-barreled gun in his possession and was in fact cleaning the weapon. In support they assert that the statement did not directly implicate defendant in the crimes. But even if the implication was not direct, it was nevertheless clear and strong. The majority also rely on the “fact” that the unidentified informant’s statement was cumulative to evidence that defendant had obtained a handgun from his father “not long before the crimes.” (Maj. opn., ante, at p. 534.) The evidence, however, was that defendant obtained the gun in the latter part of December 1977. A statement that defendant had a gun and was in fact cleaning it on the very eve of the crimes is altogether different in nature and effect from evidence that defendant had obtained a gun more than a month earlier. The majority next cite the trial court’s admonition to the jury concerning the unidentified informant’s statement. After the prosecutor read the statement and defense counsel made his objection, the court excused the jury. Defense counsel then moved for a mistrial. The court denied the motion, but decided “to strike the comment and admonish the jury to disregard it . . . .” After ordering the bailiff to bring the jury back in, the court made the following statement; “The record may reflect the jurors are all back in their assigned places. [¶] At this time, ladies and gentlemen of the jury, I’m going to let the jury go to lunch. There are matters engaging the Court’s attention that are taking some time here. Rather than keep you here about the noon hour—and Mondays are busy days in Martinez, and there is a full panel of other jurors—so we’ll let you get in ahead of them. [¶] At this time, however, the comments read by [the prosecutor] have been stricken by the Court from the record, and the jury is admonished to disregard those in all respects with the same force and effect as if you had never heard them, and they are not to be considered by you for any purpose whatsoever. [¶] I also would like to suggest that if we are able to get going a little bit after 1:00 o'clock, if that’s not too difficult for everybody, if we’re ready, try to be here at about 1:00 o’clock. [¶] Have a pleasant luncheon, and we’ll see you at 1:15 at the latest.” *561 To my mind, the prosecutor’s reading of the unidentified informant’s statement was of such significance to the crucial and close issue of identity as to be beyond nullification. In any event, the court’s weak, casual, and nonspecific admonition, sandwiched as it was between unremarkable comments about routine court business, was manifestly unequal to the task. Finally, the majority may be understood to rely on the trial court's general instructions to the jurors that they “must not consider as evidence, any statement of counsel made during the trial”; they “must never speculate to be true, any insinuation suggested by a question asked a witness”; and they “must not consider, for any purpose, . . . any evidence that was stricken out by the court; such matter is to be treated as though you had never heard of it.” But in view of the grave prejudice inherent in the prosecutor’s reading of the unidentified informant’s statement, such instructions must be deemed to be too little and too late. The majority also conclude no prejudice arose from the prosecutor’s improper suggestion that the Guzman court implied Dr. Shomer’s opinion on the unreliability of eyewitness testimony was not worthy of belief. In support they speculate that in view of the evidence presented on Dr. Shomer’s qualifications and the instructions delivered on expert testimony, the jury would have understood the prosecutor’s suggestion to go to the weight to be given to Dr. Shomer’s opinion and not to its admissibility. I am not altogether persuaded. But even if the majority is correct, their argument proves too little: the weight to be given Dr. Shomer’s opinion was crucial. That the prosecutor’s suggestion—as they assert—may have called into question only the opinion itself and not its basis is of no practical importance on the record here. The majority then assert that “[t]he impact of [the prosecutor’s suggestion] may have been diminished ... by the trial court’s comment that there are times when appellate courts should be ignored . . . .” (Maj. opn., ante, at p. 537.) I simply cannot agree. It must be emphasized that the court did nothing at all to cure the harm threatened by the prosecutor’s words. Specifically, it did not correct the suggestion or admonish the jury not to consider it for any purpose. Rather, it merely engaged in the following colloquy with counsel after defense counsel made an objection to the prosecutor’s questioning of Dr. Shomer on the opinion of the Guzman court. “[Defense Counsel]: Your Honor, I’m going to object. This is improper. There is no relevancy to this proceeding at all what an Appellate Court has said in another case. [¶] [The Prosecutor]: Let me rephrase the question, Your Honor. [¶] [The Court]: I hesitate to say that I should ignore Appellate Courts, but sometimes we do.” *562 I doubt whether the prosecutor’s improper suggestion could have been “diminished” by an admonition. But I have no doubt it was not “diminished” by the court’s flippant remark. Indeed, its comment can actually be understood to imply that the Guzman court did in fact consider Dr. Shomer’s opinion on the unreliability of eyewitness testimony to be unworthy of belief. Finally, the majority may be understood to rely on the trial court’s general instructions to the jury referred to above. But in view of the grave prejudice inherent in the prosecutor’s improper suggestion, such instructions must be held to have been entirely ineffectual. For the reasons stated above, I am of the opinion that it is reasonably probable the prosecutor’s deliberate and egregious misconduct marginally contributed to the verdict of guilt: on this record, his misconduct was of sufficient significance as to undermine confidence in the outcome. 1 Accordingly, I would reverse the judgment in its entirety. (Mosk. J.)Because I have come to the conclusion that the prosecutor’s misconduct requires reversal under the “reasonable probability” test of People v. Watson, supra, 46 Cal.2d 818 , I need not and do not reach the question whether the misconduct amounts to error of federal constitutional dimension. If it does, reversal follows a fortiori. The general rule is that federal constitutional error is subject to harmless-error analysis under the “beyond a reasonable doubt” test of Chapman v. California (1967) 386 U.S. 18 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]—which is stricter than the Watson test; the exception is automatic reversal. (Rose v. Clark (1986) 478 U.S. 570, 576-579 [ 92 L.Ed.2d 460, 469-471 , 106 S.Ct. 3101 ].) (Broussard. J.) j agree with Justice Arguelles that defendant was not an “ex-felon” under Penal Code section 12021 because he had obtained an honorable discharge from the Youth Authority under Welfare and Institutions Code section 1772 following his 1972 manslaughter conviction. (See Arguelles, J., * cone, and dis. opn., ante, at p. 556.) Section 1772 expressly provides that an honorable dischargee is released “from all penalties and disabilities resulting from the offense or crime for which he or she was committed. . . .” As Justice Arguelles points out, even the Attorney General, in his brief, virtually concedes that defendant’s section 12021 conviction should be reversed because of the language of section 1772 and past authorities construing similar language. I only differ with Justice Arguelles in that I believe defendant was prejudiced by the section 12021 conviction at the penalty phase. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855581. Public record. Not legal advice.