1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL SCOTT BEAL,

Defendant and Appellant.

 A151336

 (Alameda County

 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 

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

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.)

2 Pursuant to California Rules of Court, rule 8.90(b)(4), we refer to the 

victim by her initials to respect her privacy.
2

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.
3

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.
4

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.
5

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 

8 N.J. testified on direct that the house cost $675,000. On crossexamination, she testified that it may have been only $560,000 or $565,000; 

however, she did not write down the exact amount.
6

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 

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

marry while he was active on the force.
7

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, 

10 Defendant 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.
8

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.

11 N.J. disputed defendant’s claim that he invested $40,000 (or any 

other amount) in her Chase account.
9

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 
10

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.

13 Defendant 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.
11

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 

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

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

help.
12

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 

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

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.
13

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 
14

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 
15

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 
16

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
17

(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 crossexamination: “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 
18

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 

16 Retired 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.”
19

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.”
20

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.
21

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.)

19 The 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.”
22

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 
23

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
24

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.
25

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 crossexamination, “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 
26

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.”
27

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-withjudges 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, 
28

“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 
29

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.)
30

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

22 Defendant argues the prosecutor engaged in further misconduct 

through her improper introduction of highly prejudicial evidence, including 
31

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.
32

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 
33

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 
34

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.
35

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 offthe-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
36

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 
37

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.
38

_________________________

Jackson, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Fujisaki, J.

A151336/People v. Michael Scott Beal