Filed 7/25/13 P. v. Dacosta CA2/1 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TONYA DACOSTA, 

 Defendant and Appellant. 

 B240178 

 (Los Angeles County 

 Super. Ct. No. LA063800) 

 APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas 

Rubinson, Judge. Reversed. 

 James Koester, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, James William Bilderback 

II, Supervising Deputy Attorney General, Sonya Roth and Seth McCutcheon, Deputy 

Attorneys General, for Plaintiff and Respondent. 

_________________________________ 
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 Defendant Tonya Dacosta appeals from the judgment entered following a jury trial 

in which she was convicted of child abuse. Defendant contends the prosecutor engaged 

in prejudicial misconduct, and the trial court should have granted her motion for a 

mistrial. We agree that the prosecutor engaged in prejudicial misconduct when she 

introduced evidence the trial court had ordered excluded. Accordingly, we reverse. 

BACKGROUND 

 Defendant’s 14-month-old son Ryan died at Kaiser Hospital on the morning of 

November 14, 2009, a little less than 24 hours after firefighters and paramedics first 

arrived at defendant’s apartment in North Hollywood in response to a 911 call. (Date 

references pertain to 2009.) Defendant was in the street and appeared to be panicked and 

extremely emotional. She directed the firefighters and paramedics to her apartment. 

Firefighter Marvin Toledo testified that when he ran into the apartment, he saw a man, 

later identified as Ryan’s father, Roger Shackelford, kneeling next to a baby, attempting 

to administer “rescue breathing.” Shackleford stepped aside for the rescue team. Toledo 

testified that Ryan was not breathing, his pupils were dilated and fixed, he was pale or 

yellowish, and his stomach was bruised and appeared distended. Paramedic Kuniyuki 

Kasahara testified he saw two half-inch bruises on Ryan’s abdomen. Paramedic Robert 

Barocas testified he overheard defendant say Ryan had been vomiting throughout the 

night. Toledo did not see any signs of vomiting in the apartment or on Ryan. Toledo 

scooped Ryan up and ran to the ambulance, which took Ryan to St. Joseph’s Hospital. 

 Dr. Stephen Kishineff, who treated Ryan in the emergency room at St. Joseph’s 

Hospital, testified that Ryan was dead on arrival, but hospital personnel were able to 

resuscitate him after 40 minutes. Kishineff saw tiny bruises on Ryan’s chest and 

abdomen, but testified there were no bruises on Ryan’s back or ear. Some of the injuries 

Kishineff saw on Ryan could have been “consistent with poor or improper respiratory 

efforts.” A CAT scan revealed Ryan’s brain was swollen, but not bleeding. Kishineff 

opined that Ryan’s brain swelling was due to a very prolonged period of oxygen 
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deprivation. Brain swelling could also result from blunt force trauma, but it could not 

cause a skull fracture. 

Ryan’s health plan, Kaiser, transferred Ryan to its own hospital after about three 

hours. The physician on the team that transported Ryan testified she saw redness 

consistent with early-stage bruising on Ryan’s upper abdomen, sternum, and midthoracic back. Dr. Johnny Luu treated Ryan in the pediatric intensive care unit when 

Ryan arrived at Kaiser Hospital on the morning of November 13. He noted one- to twomillimeter, semi-circular, “new” bruises on Ryan’s abdomen, back, and one ear. These 

bruises grew larger over time. Dr. Luu opined that the bruises were caused by a fist. A 

CT scan revealed fluid outside Ryan’s abdominal tract and raised concerns about 

abdominal bleeding. Dr. Raymond Parungao, a Kaiser physician who treated Ryan 

during the night, testified he also saw bruises on Ryan’s back and behind both ears. 

Parungao testified that the bruises were mostly inconsistent with efforts to perform CPR, 

except the bruises on the back could have resulted from hard “smacks” on the back to 

attempt to dislodge an object obstructing breathing. Defendant remained with Ryan all 

night. 

Luu testified that Ryan had been born at Kaiser Hospital and had been seen 

regularly for “well baby visits.” A Kaiser pediatrician had seen Ryan on October 22 and 

noted no injuries. Physicians were required to report “signs of abuse” on a child, and 

Kaiser treated this requirement seriously. Luu further testified that children learning to 

walk often receive bruises, bumps, and cuts from falling down. Parungao testified that 

Kaiser records indicated prior reports of Ryan having difficulty keeping food down, and 

he had been given an appointment to see a specialist regarding that issue. 

Notwithstanding the efforts of Kaiser personnel, Ryan died. Luu, who was present 

at Ryan’s death, testified that defendant asked if she and Shackelford could hold Ryan for 

a while before his body was taken away. 

Dr. Raffi Djabourian performed the autopsy upon Ryan. Djabourian opined that 

the cause of Ryan’s death was bleeding in the abdomen, caused by blunt force trauma 
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and resulting in brain damage through insufficient blood flow to the brain. Djabourian 

testified Ryan had abrasions on both sides of his face, his left shoulder, and his chest. 

Ryan had a one-inch bruise and a one-quarter-inch bruise on his abdomen, a five-eighthsinch bruise on his chest, and a one-inch bruise on the upper rear portion of his left ear. 

Djabourian opined the bruises on Ryan’s abdomen, back, and ear were caused by blunt 

force trauma, not by CPR attempts or falling down. The bruises on the abdomen and 

chest were acute, occurring less than three days before Ryan’s death. The bruise on the 

ear was older, occurring three or four days before death. 

Djabourian further testified that Ryan had two tears in his liver: an acute threequarter-inch tear suffered within two or three days of death and a larger, deeper tear that 

was a couple of weeks or a month old. Ryan also had a one and-one-quarter-inch tear in 

his mesentery, a four-inch laceration of the rear peritoneal wall, and a corresponding 

injury to the jejunum portion of the small intestine. Djabourian opined these injuries 

occurred within two or three days before death. He further opined that all of these 

injuries were caused by blunt force trauma, and they could not have resulted from CPR, 

improperly performed CPR, falling, Ryan’s throwing himself on the floor, or playing 

with a three-year-old child. Djabourian opined that a child Ryan’s age with the same 

injuries to his liver would likely vomit and be lethargic and nauseous, but capable of 

some normal activities. 

Djabourian further testified that Ryan had a three-inch, nondisplaced skull fracture 

and three bruises beneath his scalp, ranging from one inch to one and one-half inches in 

diameter. Djabourian opined that all of these injuries were caused by blunt force trauma. 

The skull fracture could have been asymptomatic. Ryan had no traumatic or hemorrhagic 

brain injuries. 

Djabourian opined that the fatal injuries were inflicted within 24 hours of Ryan’s 

death and would have resulted in death within one hour, absent resuscitative efforts. 

 Los Angeles Police Department detectives interviewed defendant seven times. 

Evidence regarding six of those interviews was introduced at trial. The first interview 
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occurred on the morning of November 13 at St. Joseph’s Hospital, just as Ryan was 

about to be transported to Kaiser. An audio recording of this interview was played at 

trial. Defendant told Detective Anthony Washington that she, Shackelford, and Ryan 

lived at the apartment in North Hollywood. Only defendant and her mother took care of 

Ryan. Ryan had never been able to digest solid food and would vomit after eating. 

About four days earlier he was vomiting constantly, but after two days he stopped 

vomiting and was walking and playing and seemed fine. Defendant said Ryan had not 

fallen down or suffered any injuries within the last three days, but he had thrown himself 

on the floor in a temper tantrum two days earlier. Defendant said she and Ryan returned 

to the apartment from her mother’s house about 2:00 a.m. that morning. Ryan appeared 

to be fine at that time. Defendant put him to bed in his crib and gave him a bottle of juice 

or Pediasure. Shackelford was already up when defendant arose around 7:00 a.m. 

Defendant walked by Ryan and noticed he was not breathing. Shackelford grabbed Ryan 

and began chest compressions. 

 Washington testified that he made numerous attempts to contact defendant and 

Shackelford between November 14 and November 16. On November 17, the police 

searched defendant’s apartment pursuant to a warrant. They found no women’s clothing 

and no items for a baby. Later that day, police found defendant and Shackelford in a 

motel in Gardena, registered under the name of defendant’s sister, who was not present. 

A bag in the motel room contained $97,000 in cash. 

 Police detained defendant and interviewed her at the police station. A recording 

of this interview was played at trial. Defendant said she and Ryan were with her mother 

all day on November 12. Defendant and Ryan went to dinner with her friend Jamealia, 

then she and Ryan returned to her mother’s house. She left Ryan there for about an hour 

while she went grocery shopping. When she returned, the house was dark and everyone 

was asleep, including defendant’s three-year-old daughter Lexi, who lived with 

defendant’s mother. Defendant slept until about 2:00 a.m., when Shackelford called her 

and told her to come home. Defendant picked up Ryan and drove to the North 
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Hollywood apartment. She put him to bed on the couch and gave him a bottle. The next 

morning, she noticed Ryan was not breathing and panicked because she did not know 

what to do to help him. Defendant denied seeing any bruises on Ryan, hitting him, or 

ever disciplining him. She also denied that Shackelford disciplined Ryan. She did not 

know who hurt Ryan, but thought it may have happened at her mother’s house. She 

referred to her mother acting “crazy” and suggested the police talk to her mother. 

Defendant also said she sometimes left Ryan with her mother or grandmother. 

 The police released defendant at the conclusion of the interview and drove her 

back to the motel. Before they reached the motel, about 4:00 a.m. on the morning of 

November 18, they interviewed her again. Little evidence regarding this interview was 

presented, but apparently defendant told Washington she thought Shackelford may have 

killed Ryan and explained that as she was returning to the apartment after getting 

clothing from her car, she looked through the front window and saw Shackelford’s arms 

swinging. 

 The fourth interview of defendant occurred on November 19 after the police 

phoned defendant and asked her to return to the police station. A surreptitiously recorded 

video of the interview was played at trial. Defendant told the detectives that Shackelford 

sometimes took care of Ryan when she was sleeping, and he also took Ryan with him to 

visit his family and friends. She had never seen Shackelford hit Ryan and did not believe 

he would do so. But on the morning of November 13, she went out to her car to get 

clothing. When she got back upstairs to the apartment, the door was locked and she 

could not get in. Through a gap at the edge of the blinds on the front window, defendant 

saw Shackelford’s arms moving near the area of the couch where Ryan was lying and 

heard three soft “bangs,” as if something were being hit against the couch. She knocked 

on the door and after a slight delay, Shackelford opened it, carrying Ryan against his 

chest. Defendant asked what was going on, and Shackelford told her to just get ready. 

Shackelford put Ryan down on the bed and defendant went toward Ryan. Shackelford 

said, “Leave him. He’s fine. Just finish getting ready.” Defendant spent about 10 
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minutes getting ready, then noticed and exclaimed that Ryan was not breathing. 

Shackelford began pushing on Ryan’s chest to try to make him breathe, and defendant 

phoned 911. Defendant again told the detectives that she did not hit or otherwise 

discipline her children. Defendant did not see any bruises on Ryan before he went to the 

hospital. She saw bruises on him at the hospital, but thought they were caused by the 

chest compressions used during CPR. She did not see a bruise on Ryan’s ear and she 

never pulled on his ear, but there was a time when the color of Ryan’s ears had changed. 

 Defendant’s fifth interview occurred on November 23 when Washington phoned 

defendant. A recording of that interview was played at trial and is the subject of the 

issues raised in this appeal. Defendant asked Washington about releasing the seized 

money so that she could pay the mortuary that had Ryan’s body. As further described 

later in this opinion, Washington then asked defendant how her daughter Lexi broke her 

“ankles.” 

 The sixth interview of defendant occurred on December 9, after defendant’s arrest. 

It was recorded on video, but the recording was not played at trial. Detective Washington 

was present, but Detective Cathy Luke, who was present for most of the interview, 

testified regarding defendant’s statements. Defendant again told the detectives that she 

was not able to open the door to the apartment after she returned from her car, she saw 

arms moving, and heard a sound like something hitting the sofa. When Shackelford 

opened the door to let defendant in, he immediately took Ryan into the bathroom and 

began bathing him. Defendant tried to go into the bathroom, but Shackelford repeatedly 

told her to get out. Defendant expressed concern because Shackelford poured a lot of 

water over Ryan’s head. Shackelford said Ryan was fine and told defendant to get 

dressed. As she was getting dressed, Shackelford brought Ryan into the bedroom and 

threw him on the bed. Defendant told Shackelford not to play so roughly with Ryan. 

Shackelford often played roughly with Ryan, and Ryan did not like it. Luke testified that 

she had heard from other detectives that defendant had told them about the bathing 

sometime before December 9. Defendant repeatedly stated that, although the police 
8

insisted she knew what happened to Ryan, she actually did not know and was trying to 

figure it out. She thought that Ryan must have been injured either at her mother’s house 

the night of November 12 or when she went out to her car on the morning of 

November 13. Defendant also said Shackelford was applying pressure to Ryan’s 

midsection when he attempted to perform CPR on him, and defendant thought that might 

have caused Ryan’s injuries. Defendant reiterated that Shackelford never hit Ryan. She 

remembered that three to seven days before he went to the hospital, Ryan had fallen on 

his face and had scratches, a lip wound, and a mark on his ear. She also stated that 

Ryan’s ears had been different colors when he was born and they kept changing color. 

 Shackelford’s mother, Romaine Robinson, testified that she believed defendant 

and Ryan lived with defendant’s mother, not with Shackelford. Robinson testified she 

saw Ryan once or twice a week for his entire life. Whenever she wanted to see Ryan, she 

would call defendant and defendant would bring Ryan to visit her. Defendant never 

refused any request by Robinson to bring Ryan to see her. From the time Ryan began 

trying to walk, he frequently had bumps and bruises on the back and the sides of his 

head. The bumps looked like the kind a child would get from hitting his head on a table 

corner. When Robinson would ask defendant what had happened to Ryan, defendant 

would say that Lexi had pushed Ryan or Ryan had fallen off the bed. Once, Ryan had a 

large bruise on his back. Defendant told Robinson she did not know how he received it. 

Robinson described Ryan as a sad child who did not play or laugh. He was always 

vomiting and only wanted his mother to hold him. Robinson admitted on crossexamination that Ryan was smiling in several photographs introduced by the prosecution. 

Robinson saw Ryan three days before his hospitalization when she and defendant went to 

a karaoke bar. Robinson did not see any bruises on Ryan that day. Robinson and 

defendant left Ryan with Robinson’s friends in West Covina while they went to the bar. 

Ryan was projectile vomiting at that time. When they returned from the karaoke bar they 

were having drinks with Robinson’s friends. Ryan spilled defendant’s drink and she 

became angry and said, “Get away from me.” 
9

 Robinson testified she went to Kaiser Hospital after she heard that Ryan had been 

taken there. She stayed at his bedside off and on through the night and until he died. She 

denied that defendant was with Ryan when he died, but testified that defendant pulled a 

sheet over Ryan’s head after the medical staff had stopped working on Ryan, before they 

pronounced him dead. Robinson denied that Dr. Luu was the physician who was taking 

care of Ryan when he died and insisted there was a female physician caring for Ryan at 

that time. Robinson testified that only she and Shackelford held Ryan after he died, and 

she denied that defendant held Ryan. Defendant did not appear to be upset when Ryan 

died, but later she faked being upset by pounding on the floor and screaming, “My baby, 

my baby.” The hospital staff prepared a keepsake box and attempted to give it to 

defendant, but she said she did not want it, so Robinson took it. 

 Robinson testified that defendant did not seem to be in mourning because she went 

out “clubbing” and shopping. Robinson testified that defendant went clubbing around 

Christmas of 2009, but then agreed defendant was in custody from December 9. 

Robinson was aware that defendant tried to raise money for Ryan’s funeral. Robinson 

visited defendant in jail before their relationship soured, but she could not remember 

when. In February or March of 2010, Robinson learned that defendant was blaming 

Shackelford for Ryan’s death. Robinson denied that Shackelford ever took care of any of 

his children when they were young. She initially testified Shackelford had five children, 

including Ryan, and later testified he had three children other than Ryan. She testified 

“[a]t least five” of his girlfriends were pregnant at the same time defendant was. 

Robinson further testified that Ryan had a birthmark, but she could not recall where it 

was. 

 Robinson admitted she had been convicted of welfare fraud, but denied that it was 

a felony. The prosecutor told defense counsel and the court, outside the presence of the 

jury, that records indicated the conviction was a felony, but Robinson had told her it was 

reduced to a misdemeanor. In the presence of the jury Robinson insisted the offense was 

always a misdemeanor and denied telling the prosecutor it had been reduced to a 
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misdemeanor. She further admitted that she had “mental health issues” and was taking 

psychotropic medications. She had also had two strokes during Ryan’s life. 

 Defendant’s grandmother, Virginia Hyde, testified that she saw defendant and 

Ryan almost every day. Defendant would leave Ryan with Hyde when she went to work, 

Mondays through Fridays, except for about one month around September 2009, when 

defendant was sick and not working. When defendant recovered and went back to work, 

she resumed leaving Ryan in Hyde’s care while she worked. On one occasion, 

Shackelford picked up Ryan from Hyde’s house by himself. Hyde never saw defendant 

abuse Ryan, and she never saw any injuries on Ryan except one he received at Hyde’s 

house before he was able to walk. He was trying to pull himself up using her coffee table 

and bumped his head on it, causing a small bump on his forehead. Hyde had forgotten 

about that incident when the prosecutor interviewed her. Ryan was a happy, active, but 

quiet child. He smiled a lot and loved to dance to loud music. But he could not eat solid 

food and would sometimes vomit. Three days before Ryan went into the hospital Hyde 

asked defendant to take her shopping. They cut the shopping trip short because Ryan 

was sleepy. Hyde did not see any bruises on Ryan that day. 

 Pamela Bell, a friend of defendant’s mother, testified that she saw Ryan with 

defendant twice before Ryan began walking. Bell never saw any injuries on Ryan and 

never saw defendant mistreat him. Ryan was a happy baby who laughed and played. 

 Although Washington did not interview Hyde during his investigation, he testified 

in rebuttal that he was present with counsel for an interview during trial. At that 

interview, Hyde did not mention Ryan hitting his head on her coffee table. 

 The jury convicted defendant of child abuse in violation of Penal Code section 

273a, subdivision (a). The jury found not true an allegation that defendant had “under 

circumstances or conditions likely to produce great bodily harm or death, willfully 

cause[d] or permit[ted] any child to suffer, or inflict[ed] thereon unjustifiable physical 

pain or injury that results in death, or having the care or custody of any child, under 

circumstances likely to produce great bodily harm or death, willfully cause[d] or 
11

permit[ted] that child to be injured or harmed, and that injury or harm result[ed] in 

death.” (Pen. Code, § 12022.95.) The trial court denied defendant’s motion for a new 

trial and sentenced defendant to six years in prison. 

DISCUSSION 

Defendant contends that the prosecutor, Nancy Yaghoubian, committed 

prejudicial misconduct by violating the trial court’s order to redact recordings and 

transcripts to eliminate all references to defendant’s daughter Lexi suffering two fractures 

to the same ankle, two weeks apart. She argues the misconduct violated due process and 

the trial court should have granted her motion for a mistrial based on the misconduct. 

 Before trial, Yaghoubian filed a motion seeking to introduce evidence of “prior 

acts of child abuse at the hand of defendant against her daughter, Lexi.” Yaghoubian 

explained Lexi had suffered “two separate broken ankles for which she sought medical 

attention for [sic], five months prior to this child’s death. After the second broken ankle 

the hospital personnel got suspicious, called DCFS.” Yaghoubian continued, “[S]ocial 

workers interviewed the defendant several different times, and the defendant gave, by my 

last count, four or five different explanations as to how her daughter sustained these 

injuries.” Upon questioning by the court, Yaghoubian revealed that the DCFS 

investigation “found that there was no abuse” and the agency closed the case. 

Yaghoubian also revealed that Lexi “never lived with the defendant. She was living with 

the defendant’s mother for six months prior to that.” 

 Defense counsel objected, noting there was no finding of abuse, defendant was not 

present when Lexi suffered her injuries, defendant’s statements were based upon what 

others told her had happened to cause the injuries, and her statements were not actually 

inconsistent. Counsel argued the court should exclude the evidence as “more prejudicial 

than probative.” After much additional argument, the trial court denied Yaghoubian’s 

motion, noting that Yaghoubian had no evidence of prior acts of child abuse by 

defendant. The court further explained there had been no showing defendant was either 

present or in any way responsible for Lexi’s injuries. It continued, “And under those 
12

circumstances, when you’re talking about a defendant who’s being tried for the crime of 

child abuse likely to produce GBI or death, and you want to bring in prior evidence of—

or evidence of prior child abuse, that is very, very powerful evidence, and I just don’t see 

it as—I just don’t think you can link the prior injuries to this defendant, like I said, in any 

kind of meaningful way. [¶] And it is highly prejudicial evidence. That’s not to say it 

wouldn’t be probative, as well, but the prejudicial effect of this type of evidence is very, 

very substantial, and in this particular case I think it’s substantially more prejudicial than 

probative, and pursuant to [Evidence Code section] 352 it’s not going to be admitted in 

this trial.” 

 On the fourth day of testimony, Yaghoubian argued that the court should 

reconsider its exclusion of the evidence regarding Lexi’s injuries. The court did not 

change its ruling. 

 Before Yaghoubian played the recording of Washington’s fifth interview with 

defendant, defense counsel asked, outside the presence of the jury, to “make sure that 

these have been redacted and you’ve gone through and taken out anything 

objectionable.” Yaghoubian responded, “Well, what do you find objectionable in these?” 

Defense counsel replied, “The stuff that’s been ruled out. Anything that you would know 

would not be generally admissible based upon the facts.” Yaghoubian did not respond to 

the inquiry about redaction, but instead asked defense counsel if he knew “which call this 

is,” then stated it was Washington’s phone call to get information regarding Jamiela [sic] 

and Claudia, which included an “exchange about, ‘Where’s my money?’” 

 Yaghoubian began playing the recording, which was not reported by court 

reporter, then stopped it before it ended and asked to approach. The court stated, “I think 

that concludes the relevant parts of the call.” Yaghoubian asked to “retrieve the 

transcripts,” and the court replied, “Yes, please.” Jurors had been allowed to keep their 

individual copies of the transcripts of other recordings played during the trial. 

 In the course of the subsequent discussion between the court and counsel outside 

the jury’s presence, the court noted that the recording was stopped at a point 
13

corresponding to page 11 of the transcript. Yaghoubian later asserted, without 

contradiction by the court or defense counsel, that she stopped the recording at a point 

corresponding to line 21 or 22 on page 11 of the transcript. Using line 22 as the end 

point, the jury would have heard the following regarding Lexi: 

 “Detective Washington: Briefly, could you just tell me before I let you go, ’cause 

it’s just part of the thing that I have to do to finish what I’m doing is [sic]. How Lexi hurt 

her ankles—or what was actually hurt on Lexi? 

 “[Defendant]: It was—it was broke. Well, fractured. 

 “Detective Washington: What was broke? 

 “[Defendant]: It wasn’t broke, it was fractured. 

 “Detective Washington: Okay. What was fractured? 

 “[Defendant]: Just her ankle. 

 “Detective Washington: Her ankle. Just one or two? 

 “[Defendant]: One. 

 “Detective Washington: Only one. You never” 

 If jurors continued to read the remaining three lines of page 11 before Yaghoubian 

collected their transcripts, they would have seen Washington’s completed question: 

“You never went to the hospital twice for two different ankle fractures?” and the 

beginning of defendant’s response: “Yeah. Yes. Yeah, went twice.” 

 After Yaghoubian stopped the recording and collected the transcripts, she asked 

Washington a few more questions, then the court sent the jury out for a break and 

addressed counsel: “I’m really not happy with what just happened here. And the record 

should reflect, because it wasn’t being transcribed, but this tape and transcript were not 

properly redacted. References to Lexi, Lexi’s ankles, Lexi’s ankles being hurt, Lexi’s 

ankles being broken and fractured remained on this tape—or this CD and on this 

transcript after the court not only made a specific ruling that they be removed from this 

trial, but [defense counsel] asked to go to side-bar to confirm that nothing like this was 

going to be in here. And there it is. And it’s in here over multiple pages. [¶] Miss 
14

Yaghoubian stopped the recording, stopped the jury from hearing more of the recording 

and doing further damage, but as I’m looking at this transcript, it goes on for three, four, 

five pages about the broken ankle and how it happened and—broken ankles. [¶] I just 

don’t understand how this happened, and I’m very concerned about it.” 

 Yaghoubian apologized and denied that the failure to redact was intentional, citing 

long hours she and detectives spent redacting recordings and transcripts. She then argued 

that “there’s no death knell of anything that’s wrong here.” The court asked, “How do 

you unring the bell?” Yaghoubian responded that evidence about Lexi’s broken ankles 

was going to be admitted anyway because the defense was going to present character 

witnesses. 

 Defense counsel moved for a mistrial and noted that he “had no intention of doing 

anything to open the door about Lexi because it’s so damaging that I wanted it out.” 

Defense counsel continued, “You should have seen—I don’t know if the court watched 

the jurors’ faces when they heard that. There’s no way that the defendant can have a fair 

trial at this point with this in it.” 

 The court stated, “It doesn’t matter whether it was intentional or not. I don’t think 

it was intentional. But damage has certainly been done here. Significant damage.” After 

interruption by Yaghoubian, the court continued, “The whole point of that [Evidence 

Code section] 402 and the ruling that I made was to keep exactly this from happening, 

keeping the jury from hearing exactly this because of the prejudicial effect that it has.” 

After further interruption, the court continued, “I did not look at the reaction that the jury 

was having specifically because I didn’t want the jury to think that I thought that ‘Oh, my 

God,’ a moment had just happened, and I tried to play it off as if no big deal. ‘Stop the 

tape. Okay. Let’s just collect the transcripts now and move on.’ So I don’t know what 

their reaction was.” 

 Yaghoubian argued there was really no damage from the portion the jury heard 

because the detective had not accused defendant of breaking Lexi’s ankles. The court 

responded, “The damage is and can be when you’ve got a mother sitting here on trial for 
15

either abusing or permitting her child to be abused and killed and the defense is, ‘I didn’t 

do anything, and I didn’t know about . . . anybody else doing anything either,’ and 

you’ve got evidence that she has another child who came up with, shall we say, an 

unusual set of injuries not very long before this child died. [¶] You cannot tell me that 

isn’t something that a jury is going to utilize. That is human nature. And where there is 

smoke, there’s fire; that sort of thing. And that’s specifically why the evidence is so 

prejudicial that it led me to make the [Evidence Code section] 352 ruling that I did. The 

only reason—but that’s also why the evidence is so probative. Were the People able to 

tie it to the defendant, it would have been devastating evidence against her.” 

 After the court and defense counsel discussed the possibility that the jury had read 

ahead in the transcript, Yaghoubian again argued that the jury had heard very little 

information compared to what Yaghoubian had wanted to admit, and jurors would not 

make “the leap” that the court feared. The court stated, “Counterbalancing that is the 

very fact that the tape had to be stopped in the middle, the transcripts had to be collected. 

It was obvious something was going on here.” Yaghoubian replied, “Well, it’s been 

obvious throughout the whole trial.” The court responded, “No, it hasn’t. Not to the jury 

it hasn’t. That information about Lexi was being removed from their consideration, that 

has not been obvious to the jury. Now it is.” 

 The court nevertheless denied the mistrial motion and decided to admonish the 

jury, over defendant’s objections. When the jury returned from a break, the court stated, 

“Ladies and gentlemen, the recording of the phone call and the transcript that you were 

following along with, it was starting to get into some information about the defendant’s 

daughter, Lexi, having suffered a broken ankle at some point in the past. That evidence 

is something that I had ordered to be—it’s not even evidence—that I had ordered to be 

taken out of the recording and the transcript. That was not done. I don’t think it was 

intentional. It may have been inadvertent. But, nevertheless, it was left in there by 

mistake. [¶] What I want you to know is that the reason that I was removing it from this 

case is because there’s never been any finding, any evidence or anything like that to show 
16

that [defendant] had anything to do with her daughter breaking her ankle. There’s never 

been anything to suggest that this was anything other than a normal childhood accident, 

and that’s why I didn’t want it to come before you, because I didn’t want anybody to 

make any inference that, ‘Oh, she had a child who broke an ankle. Now she’s had a child 

who died.’ [¶] It has no relevance because there’s nothing to suggest that she had 

anything to do with the broken ankle. Those of you who have had children know 

sometimes children get hurt and it’s nobody’s fault. And that’s the situation with the 

ankle. [¶] So that’s why we had Miss Yaghoubian stop the recording and take the 

transcripts from you. I didn’t want anybody to be considering the ankle situation with 

Lexi for any purpose. It’s not part of this trial. It’s not relevant to anything in this trial. 

And I don’t want you to consider it for any purpose.” The court asked jurors if anyone 

had any questions, then noted there were no questions. It asked, “Everybody’s real clear 

on that?” then noted there were “[h]eads nodding up and down.” 

 Defense counsel asked for a sidebar conference, where he noted that a specified 

juror “was basically rolling her eyes during the court’s speech and smirking.” The court 

stated it did not see that, but saw the same juror “sort of smirk and smile when I said, 

‘Those of you who have children know that sometimes children just get injured.’” 

Defense counsel stated, “It started way before that.” The court said it had not seen that 

portion. 

 Defense counsel renewed his mistrial motion at the start of the next day of trial, 

noting that Yaghoubian committed “two misconduct violations yesterday. One was the 

fact that these things were not redacted when the court had made its ruling. Then there 

was a second one because I called her up with the court, and she told the court and myself 

that they had been redacted.” After argument by counsel, the court stated it had “thought 

about it a lot overnight, and it seems to me that the impact of what the jury saw on the 

transcript through page 11 and what they heard on the tape and saw on the tape [sic] is 

not very significant. [¶] What the jury knows is that Lexi at some point in her life had a 

broken ankle. They don’t know when it was. They don’t know that there was a DCFS 
17

investigation. They don’t know what any of the circumstances were other than what I 

told them, which is there’s no evidence that the defendant had any involvement in this 

and that this was anything other than an accident like many, many children have. That’s 

all they know. [¶] They don’t know—most of what I excluded they still don’t know. 

The investigation. Her conflicting—or what one could interpret to be conflicting 

statements about it. They don’t know any of that. Those are the aspects of this that were, 

frankly, the most prejudicial or potentially prejudicial, which is what motivated me to 

make the ruling that I did on [Evidence Code section] 352 grounds. Most of what I 

excluded this jury still has not heard and will not hear. What they did hear, to me, is 

relatively minor, nonprejudicial and not sufficient to affect the fairness of the trial.” The 

court further stated that it believed its admonition cured any potential prejudice and 

denied the renewed motion for mistrial. 

 A prosecutor’s misconduct violates due process if it infects a trial with unfairness. 

(People v. Harrison (2005) 35 Cal.4th 208, 242.) Less egregious conduct by a 

prosecutor may nonetheless constitute misconduct under state law if it involves the use of 

deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.) “It is 

misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit 

inadmissible evidence in violation of a court order. [Citation.] . . . Because we consider 

the effect of the prosecutor’s action on the defendant, a determination of bad faith or 

wrongful intent by the prosecutor is not required for a finding of prosecutorial 

misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.) 

 Given the simple, sparse text of the unredacted transcript, the apparently abrupt 

halt to playing the recording, and the close proximity to the end of page 11 when the 

playing of the recording stopped, it is reasonably probable, that at least some jurors read 

ahead to the end of page 11. In this regard we note that the trial court seemingly reached 

the same conclusion. In denying the renewed motion for mistrial, the court referred to 

“the impact of what the jury saw on the transcript through page 11,” and it later stated, “I 

know they read through page 11. I don’t know that they read a single word, any of them, 
18

beyond that.” Accordingly, we consider the improperly admitted statements to include 

all of page 11. 

 The evidence Yaghoubian improperly introduced in violation of the trial court’s 

order excluding it was extremely prejudicial. As the trial court noted, “The damage is 

and can be when you’ve got a mother sitting here on trial for either abusing or permitting 

her child to be abused and killed and the defense is, ‘I didn’t do anything, and I didn’t 

know about . . . anybody else doing anything either,’ and you’ve got evidence that she 

has another child who came up with, shall we say, an unusual set of injuries not very long 

before this child died. [¶] You cannot tell me that isn’t something that a jury is going to 

utilize. That is human nature. And where there is smoke, there’s fire; that sort of thing. 

And that’s specifically why the evidence is so prejudicial that it led me to make the 

[Evidence Code section] 352 ruling that I did.” We note, in addition, Detective 

Washington’s knowledge of Lexi’s injuries and his inquiry to defendant about them 

implied there was enough suspicion about the way they occurred that at some time 

someone had reported it to law enforcement and Washington felt it had potential 

relevance to his investigation of Ryan’s death. 

 Not only did the improperly admitted statements permit the jury to infer that 

defendant harmed Lexi, allowed someone else to do so, or knew that someone to whom 

she had entrusted Lexi had harmed her, it improperly allowed the jury to infer that 

defendant lied to Washington to attempt to minimize her culpability regarding Lexi’s 

injuries. Defendant told Washington that Lexi broke only one ankle; Washington had 

referred to “ankles” and responded to defendant’s assertion that Lexi broke only one 

ankle by repeating “[h]er ankle” and asking, “Just one or two?” After defendant 

reiterated it was one ankle, Washington got her to admit that she “went to the hospital 

twice for two different ankle fractures.” Because the jury never learned that Lexi broke 

the same ankle twice, this portion of the questioning supported a strong, but erroneous 

inference that defendant was lying to Washington and minimizing what had happened 

with Lexi’s “ankles.” This strengthened Yaghoubian’s arguments to the jury that 
19

defendant had minimized her own culpability regarding the injuries that led to Ryan’s 

death throughout her numerous statements to the police. Indeed, the statements about 

Lexi’s “ankles” provided a powerful, seemingly objectively confirmed instance of 

defendant minimizing the injuries to Lexi in one of those police statements. 

 Under the circumstances, Yaghoubian’s improper introduction of the highly 

prejudicial testimony the trial court had ordered excluded portrayed defendant as a liar 

and someone with a history of significant, suspicious injuries to her young children. 

Given the erroneous nature of the inference that defendant was lying to Washington 

about Lexi’s “ankles” and the absence of any facts showing defendant was in any way 

responsible for Lexi’s broken ankle, Yaghoubian’s improper introduction of this 

evidence infected defendant’s trial with such unfairness as to violate due process. 

Accordingly, the Attorney General has the burden of proving beyond a reasonable doubt 

that the improper introduction of this evidence did not contribute to the verdict. 

(Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824].) 

 The Attorney General argues that “the trial court’s admonition was more than 

sufficient to cure any prejudice.” Given the multiple, severely damaging aspects of the 

improperly introduced evidence, it is unlikely that any admonition could have cured the 

prejudice to defendant. But even if that prejudice were potentially remediable, the 

admonition actually given by the trial court was insufficient. It addressed, at best, only 

the possibility that defendant directly caused Lexi’s broken ankles and did not address 

the possibility that defendant caused or willfully permitted Lexi to be placed in a 

situation where she was endangered, which paralleled the prosecution’s theory and jury 

instructions regarding the injuries to Ryan. In addition, the court’s statements (“there’s 

never been any finding, any evidence or anything like that to show that [defendant] had 

anything to do with her daughter breaking her ankle. There’s never been anything to 

suggest that this was anything other than a normal childhood accident”) did not actually 

inform the jury that defendant was not responsible in any way for Lexi’s broken ankle, 

just that there was no evidence establishing her responsibility. And the jury could 
20

reasonably infer from Detective Washington’s knowledge of Lexi’s injuries and his 

inquiry to defendant about them that Lexi’s injuries were suspicious, not just “a normal 

childhood accident.” Thus, the admonition could not dispel the extremely powerful 

prejudicial inferences recognized by the court, the prejudicial inference inherent in 

Washington’s knowledge of the injuries and inquiry about them, the extremely powerful 

prejudicial inference inherent in a child having two separate ankle fractures, or the 

extremely prejudicial but erroneous inference that defendant had lied to Washington to 

minimize her culpability for Lexi’s injuries. Indeed, the jury could infer from the court’s 

admonition that defendant got away with harming Lexi or permitting her to be harmed. 

 The improperly admitted evidence was extremely inflammatory in the 

circumstances of this case, where there was no direct evidence and only weak 

circumstantial evidence that defendant had either inflicted the injuries on Ryan or 

knowingly permitted him to be placed in a situation where his body or health was 

endangered; the significant injuries were either so recent that they may have been 

inflicted just before Ryan stopped breathing or they were undetectable (skull fracture, 

older liver tear) and had not been detected by Ryan’s pediatrician when he saw Ryan 

during an October 22 appointment. Although Robinson testified that she frequently saw 

bruises and bumps on Ryan, her credibility was subject to significant doubt, given her 

welfare fraud conviction; her admitted “mental health issues” and use of psychotropic 

drugs; her apparent memory impairment from two strokes; her obvious bias in favor or 

her son, Shackelford, upon whom defendant cast blame; and apparent falsities in her 

testimony, such as her insistence that Dr. Luu was not attending Ryan when he died, that 

only Robinson and Shackelford held Ryan after he died, and that defendant was out 

“clubbing” around Christmas, when in fact she was in jail. Under these circumstances, it 

is highly improbable that, notwithstanding the admonition, every juror completely 

disregarded and remained uninfluenced by hearing about Lexi’s “ankles” being broken, 

and defendant’s seemingly lying about whether both of Lexi’s ankles were broken. 
21

Accordingly, we cannot conclude beyond a reasonable doubt that Yaghoubian’s 

misconduct did not contribute to the verdict. Reversal is thus required. 

 We note that the fairness of defendant’s trial was further impaired by several other 

errors. The trial court allowed Robinson to testify, over defendant’s hearsay objection 

and motion to strike, that after Ryan’s death defendant’s mother said, “‘It’s going to all 

come out. It’s going to all come out how she is, what she did.’” When the trial resumed 

four days later, the court told counsel it realized it erred, then informed the jury of its 

error, sustained the objection, and struck the testimony. 

 In addition, Yaghoubian argued several matters not supported by the record, 

although defendant failed to object in the trial court and thus forfeited the errors for 

appellate purposes. For example, she argued, based on testimony by Washington that 

was stricken for lack of personal knowledge and as based upon hearsay, that defendant 

lied about her apartment door locking and being delaying in getting back inside: “She 

gives them the story that doesn’t check out with the self-locking door. The detectives 

were there. They never found such a door.” Yaghoubian also argued, based upon 

embellishment of testimony that was stricken for lack of foundation, that the $97,000 in 

the motel room was “in a diaper bag of a dead baby.” This was not merely a minor 

detail, but one carrying a heavy emotional charge and portraying defendant as callous. 

Yaghoubian also argued, without support in the record, that defendant “treated [Ryan] 

like a purse and took him as an accessory to get the attention of [Shackelford].” 

Defendant objected, to no avail, when Yaghoubian misstated Hyde’s testimony to 

support her argument that Ryan was in defendant’s care and defendant “ran out of people 

to blame” for his injuries: “Think back to the testimony of [defendant’s] grandmother, 

and what she was able to tell us is that she used to take care of him, [defendant] stopped 

working and then [defendant] had the baby. She no longer brought it to [Hyde’s] house.” 

 Finally, we note that Yaghoubian was on notice of inadequate redaction of the 

recordings and transcripts before she played the recording of Washington’s fifth 

interview with defendant. After Yaghoubian played the DVD of Washington’s fourth 
22

interview with defendant, defense counsel noted on the record that the recording 

contained a reference to Shackelford being in jail and on probation, even though the court 

had granted Yaghoubian’s motion to exclude evidence of his criminal history. 

DISPOSITION 

 The judgment is reversed. Pursuant to Business and Professions Code section 

6086.7, subdivision (a)(2), the clerk of this court is directed to send a certified copy of 

this opinion to the State Bar. 

 NOT TO BE PUBLISHED. 

 MALLANO, P. J. 

We concur: 

 ROTHSCHILD, J. 

 JOHNSON, J.