People v. Berg

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY JOHN BERG, Defendant and Appellant.

A156886

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

November 18, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Sonoma County Super. Ct. No. SCR711894)

Jeffrey John Berg was convicted of making criminal threats while personally using a knife, and two counts of exhibiting a deadly weapon. Berg contends that the criminal threats conviction must be reversed because the trial court error in limiting his counsel's cross-examination as to the credibility of the complaining witness and in giving a special jury instruction that reinforced the credibility of the complaining witness denied him a fair trial. We agree, and we shall reverse this conviction. Berg also contends that the trial court erroneously denied his Trombetta¹ motion to dismiss the criminal threats charge, or at a minimum give an adverse inference jury instruction, based on the alleged failure of the police to collect exculpatory evidence at the scene. On this issue we find no error.

BACKGROUND

A. Charged Offenses

The Sonoma County District Attorney charged Berg with making criminal threats (Pen. Code,² § 422, subd. (a) [count 1]); dissuading a witness (§ 136.1, subd. (b)(1) [count 2]; and with two misdemeanor counts of exhibiting a deadly weapon (§ 417, subd. (a)(1) [counts 3 & 4].) It was further alleged that Berg personally used a knife during the commission of counts 1 and 2 (§ 12022, subd. (b)(1)).

B. Evidence at Trial

In the late afternoon of January 14, 2018, David Sean Sullivan, a retired New York City police detective, was drinking beer and watching football at the Hideaway Bar in Putnam Plaza in Petaluma. Sullivan had been at the bar for two to three hours and, by his estimate, drank four to six beers. When Sullivan went outside to smoke on a balcony overlooking American Alley in the plaza, he saw Berg cursing and yelling at people. Recognizing Berg from a previous encounter in the plaza about four days earlier—during which Berg screamed obscenities and threw food at Sullivan and at others in the plaza—Sullivan called the police.

Meanwhile, Robyn Williams was working at a bakery across American Alley. Williams heard someone yelling outside, and, when she went to the window, saw Berg walking down the alley. He was yelling obscenities and appeared to be "doing . . . whippets," which she believed was nitrous oxide gas.

Williams went outside and called the police. She saw Sullivan on the balcony at the Hideaway Bar and yelled up to ask if he was going to call the police. Sullivan confirmed he was also on the phone with the police.

At that point, Berg started to come at Williams with a box cutter. Williams was frightened; she ran back into the bakery and locked the door. Berg tried without success to open the bakery door by bashing it with a chair. Berg then went back into American Alley and yelled at Sullivan, still on the balcony. Sullivan told Berg to calm down and said the police were on the way. Sullivan admitted that he may have told Berg, "[W]hy don't you go fuck yourself now?"

Sullivan testified at trial that Berg reached into a bag, took out a blade and said, " 'I'm going to cut you open. I'm going to fuck you up. I'm going to kill you.' " However, when Sullivan was shown a transcript of what he said to law enforcement at the scene, he admitted on cross-examination that he told police, "I don't remember now if he said kill me because it doesn't matter to me. . . . [¶] You got a blade in your hand and you're rushing up the stairs at me."

Sullivan testified that Berg then ran up the stairs to the balcony. As Berg was part way up the stairs, Sullivan took the lid from a Weber barbeque grill to use as a shield and then hurled the grill at Berg. The grill squarely hit Berg, who was stunned and staggered back down the stairs.

A passerby, Gregory Johnson, testified that as he walked into the plaza that afternoon, Sullivan warned him not to go down American Alley. Johnson started to walk in the other direction but returned when he heard an exchange between Sullivan and Berg. Johnson could not hear everything, but thought he heard Berg yell "faggot" and "come at me bro" to Sullivan. Johnson heard Sullivan say to Berg, "This isn't my first rodeo." Johnsondescribed Sullivan as "very calm, very friendly," and described Berg as "being aggressive[.]" Johnson saw Berg run up the stairs towards Sullivan. He saw Sullivan use the lid of a barbeque grill as a shield.

A Petaluma police officer who responded to the scene, Dario Giomi, recognized Berg from previous contacts. Giomi searched Berg and found a box cutter in his possession.

Giomi interviewed Sullivan at the scene. Sullivan told Giomi that Berg had made a verbal threat. Giomi immediately noticed that Sullivan had been drinking. Giomi could smell alcohol on Sullivan's breath, but Sullivan did not appear impaired. Giomi knew that Sullivan "had been hanging out in a bar." Because Giomi was aware that alcohol can impact a person's perception and recollection of events, he wanted to give Sullivan a test to determine his blood alcohol level, although he did not tell Sullivan he wanted to administer the test. By the time Giomi retrieved the Breathalyzer machine from his patrol car and returned to the scene, Sullivan was gone.

After getting Sullivan's statement, a woman came up to Giomi while he was still at the scene in Petaluma. The woman said that when she came out of a bathroom, she saw Sullivan talking to Berg, but Berg did not say anything back, and he appeared confused. She then said, "[t]hat's all I have" and walked away, without Giomi obtaining any contact information from her during their 20 to 30 second encounter. Giomi had the impression that the woman had not seen the entire incident.

C. Verdict and Sentencing

The jury acquitted Berg of dissuading a witness (§ 136.1, subd. (b)(1) [count 2]). The jury convicted Berg of making criminal threats (§ 422, subd. (a) [count 1]) and found true the allegation that he personally used a knife(§ 12022., subd. (b)(1)). The jury also convicted Berg of two misdemeanor counts of exhibiting a deadly weapon (§ 417, subd. (a)(1) [counts 3 & 4]).

The trial court imposed the upper term of three years on the criminal threats count (§ 422), and a one-year weapon use enhancement, for an aggregate term of four years. The trial court sentenced Berg to time-served on the two misdemeanor counts of exhibiting a weapon (§ 417, subd. (a)(1)).

This timely appeal followed.

DISCUSSION

I. Reversal is Required Based on the Cumulative Effect of theTrial Court's Errors

Berg argues that the trial court improperly limited defense counsel's cross-examination of Sullivan, and that the trial court gave a special jury instruction that bolstered Sullivan's credibility and disparaged defense counsel. He claims the combined effect of these two errors deprived him of a fair trial. We agree.

A. The Limits on Defense Counsel's Cross-Examination of Sullivan

1. Background

Berg filed a written motion in limine to admit evidence that Sullivan had a pending misdemeanor case for violating Penal Code section 484, subdivision (a), in which he was "alleged to be a repeated shoplifter of food items from Petaluma Market in Petaluma." At the hearing on the motion, defense counsel made the following offer of proof: "It's an open 484 case from May of this year where Mr. Sullivan was arrested for stealing a sandwich from the Petaluma Market. There was also evidence that he had sort of an MO of ordering sandwiches and just walking out without paying for them. And I think it—to me it actually does shed a lot of light on who Mr. Sullivan is, especially if he's going to come up to the stand and talk about his past as a former NYPD officer. He's certainly not the totally clean character that hewould like to be portrayed as, and I do think some questioning on this is relevant particularly given how fresh it was to what happened." (Italics added.)

The prosecution did not argue against the admissibility of the pending theft case. But citing Evidence Code section 352, the prosecutor objected to any questioning beyond, "Do you have a currently pending case for theft?" The prosecutor stated that Sullivan had been offered Community Accountability Diversion (CAD)³ and also expressed concern that Sullivan would incriminate himself.

Defense counsel argued the underlying facts of the thefts were relevant to Sullivan's credibility. Counsel wanted to ask Sullivan "a little bit about . . . his dishonest scheme in more detail." The trial court noted that because Sullivan's case was pending he could invoke his right not to answer questions about a dishonest scheme.⁴ The trial court took the issue under submission until the following court date.⁵

Defense counsel stated he would assume "[f]or the moment" he could only ask the basic question of whether Sullivan had a current pending case for theft.

Five days later, at trial, Sullivan testified on direct examination that he had a current misdemeanor theft case pending in Sonoma County, and that he was not receiving any benefit in exchange for testifying at Berg's trial.

During cross-examination, defense counsel asked Sullivan about his "currently open theft case . . . in Sonoma County." Sullivan acknowledged he had been "charged with stealing from Petaluma Market." Defense counsel then asked Sullivan whether the allegation was that he had stolen from Petaluma Market "12 times in the past." The trial court sustained the prosecutor's objection and told Sullivan he did not need to answer the question. On the prosecution's motion, the trial court ordered the question stricken from...