Filed 9/30/16 P. v. Bryant CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DANNON R. BRYANT,

Defendant and Appellant.

 B264128

 (Los Angeles County

 Super. Ct. No. NA099959)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. 

Kim, Judge. Reversed.

Sunnie L. Daniels, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General, and Michael Katz, Deputy Attorney General, for 

Plaintiff and Respondent.

——————————
2

A jury found Dannon R. Bryant (Bryant) guilty of (a) injuring a spouse, cohabitant 

or girlfriend, a felony violation of Penal Code1section 273.5, subdivision (f)(1) and 

(b) disobeying a court order, a misdemeanor and a violation of section 166, 

subdivision (a)(4). The court sentenced Bryant to nine years in state prison.

On appeal, Bryant advances two principal arguments. First, he contends that the 

trial court abused its discretion by discharging a seated juror without good cause prior to 

deliberations. Second, Bryant argues that his conviction must be overturned because the 

trial court failed to allow him to impeach the victim’s hearsay statements with her prior 

felony convictions and that this error prejudiced his defense. While the People reject the 

notion that the trial court abused its discretion in excusing the juror, they concede that the 

trial court did in fact err with regard to the exclusion of the victim’s prior felony 

convictions; however, the People contend that this error was harmless.

We hold that the trial court had good cause to excuse the juror and, as a result, did 

not abuse its discretion. We hold further that the trial court should not have precluded 

Bryant from impeaching the victim’s credibility with her prior convictions and that such 

an error was not harmless. Accordingly, we reverse the judgment.

BACKGROUND

I. The incident

On August 17, 2014, Dorothy Williams (Williams) called 911 from her apartment. 

According to the transcript of that call, Williams said that a man against whom she had a 

restraining order2 had walked into her apartment without her permission and, as a result, 

she had locked herself in the bathroom. While she was on the phone with the 911 

operator, she repeatedly pleaded for the operator to tell the police to “hurry up.” In 

 

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 According to a protective order running from August 21, 2013 through 

August 21, 2016, Bryant was supposed to stay at least 100 yards away from Williams 

(the 2013 protective order). The court issued the 2013 protective order because there had 

been a domestic violence incident between Bryant and Williams, with Bryant hitting 

Williams.
3

addition, Williams was heard yelling, “Get away from me,” “Leave me alone,” “He’s 

hitting me!. . . . Help me! Help me!” “Oh, oh my God! Help me!” The transcript also 

recorded a man’s voice calling Williams a “dumb bitch,” a “stupid ass bitch,” and a 

“bitch,” and telling her to “sit you[r] ass there” and “get the fuck out of there.”

When the police arrived, they found Williams outside her apartment and across the 

street. According to the police, she looked “very upset” and “beat up.” She was 

“shaking” and it appeared that she had been crying. She appeared to be happy to see the 

police. Photos of Williams showed a bloody lip, a swollen left eye, scratch marks on her 

face, and teeth “full of blood,” which appeared to be “fresh.” Williams told one of the 

responding officers that Bryant had punched her five or six times while she was standing 

and while she was prone on the floor of the apartment.

Police found Bryant in the alley behind Williams’s apartment. At that time, 

Bryant appeared “calm” and did not appear to be suffering from any injuries. Bryant told 

the police that he had merely stopped by Williams’s apartment to give her some money 

when she suddenly went “out of control,” and started “tripping.”

II. The preliminary hearing

On October 14, 2014, the court held a preliminary hearing stemming from the 

incident on August 17, 2014 at Williams’s apartment. Williams testified for the People, 

but her testimony was markedly different than the statements she made to the 911 

operator and to the responding police officers.

First, Williams testified that she had lied to the police when she told them that 

Bryant had just “walked in” to her apartment uninvited. According to Williams, Bryant 

had been living with her at her apartment for the last two years and had continued to live 

with her, at her invitation, despite the issuance of the 2013 protective order requiring

Bryant to stay 100 yards away from Williams. Second, Williams testified that she had 

lied to the police officers when she said that Bryant had punched her five or six times. 

Third, Williams testified that after finding some text messages on Bryant’s phone that 

suggested Williams may have been cheating on her, she became “very mad,” “very 

emotional,” and “pushed” and “hit” Williams, causing him to “hit [her] back.” In other 
4

words, she was the “aggressive one,” the one who “hit first.” Specifically, Williams 

testified that she pushed Bryant into the dining room table and then scratched his back. 

Williams also admitted that she had been drinking alcohol the night before and on the day 

of the incident and that drinking makes her “very aggressive.” Despite Williams’s 

testimony that she had lied to the responding police officers, the court found that there 

was “sufficient cause to believe that [Bryant was] guilty.”

On October 28, 2014, the People filed a two-count information, alleging that 

Bryant had injured a spouse, cohabitant or girlfriend (§ 273.5, subd. (f)(1)) and had 

disobeyed a court order (§ 166, subd. (a)(4)). At his arraignment later that same day, 

Bryant pleaded not guilty to both counts.

III. The trial

At trial, the People’s principal theme was “[h]e did it again,” arguing that Bryant 

was a serial abuser. In addition to the 2013 and 2014 incidents involving Williams, the 

People introduced evidence regarding a 2007 incident between Bryant and his former 

wife, Teresa Lopez (Lopez). Lopez testified that in 2007, during an argument, Bryant hit 

her while she was holding one of their children and then pushed her to the ground and 

kicked her, sending her to the hospital with scratches, bruises and a swollen bloody lip. 

A principal theme of the defense was relative credibility—that is, Bryant was more 

credible than Williams. In order to establish that Bryant was the more credible witness, 

the defense employed a two-pronged strategy. First, Bryant testified on his own behalf. 

On the stand, he freely admitted, inter alia, to his prior acts of domestic violence against 

Lopez in 2007 and Williams in 2013, accepted “full responsibility” for his misconduct 

and stressed that he was “apologetic” and “very sorry.” As to the 2013 incident involving

Williams, Bryant testified that he had pleaded “no contest” because he was guilty of the 

misconduct. The clear implication of this testimony about the prior incidents was that 

Bryant was contesting the 2014 charges because he was not guilty, a point that his 
5

counsel made express during closing argument.3 Second, the defense contrasted Bryant’s 

live, in-court testimony with the preliminary hearing testimony of Williams, which was 

read to the jury. The defense utilized the preliminary hearing testimony in which 

Williams admitted lying to the police on several relevant matters, because she elected to 

invoke her Fifth Amendment right against self-incrimination and, as a result, the court 

found her unavailable to testify at trial.

To bolster its argument that Bryant was the more credible witness, the defense 

attempted to introduce evidence of Williams’s prior convictions. Before the presentation 

of any evidence to the jury, defense counsel announced that he intended to present 

evidence of Williams’s prior convictions to impeach the credibility of her statements to 

the 911 operator. The trial court ruled, over the objection of Bryant’s counsel, that “[h]er 

prior record does not come in unless she testifies.” After the People rested, the 

prosecutor submitted to the trial court Williams’s “rap sheet,” which showed, inter alia,

that she had suffered felony convictions for receiving stolen property (§ 496) in 1998,

grand theft (§ 487) and receiving stolen property (§ 496) in 1999, and receiving stolen 

property (§ 496) in 2001. She had also suffered a misdemeanor conviction for joyriding 

(Veh. Code, § 10851) in 2008 and a possible conviction in 2013 for disobeying a lawful 

court order. After Williams invoked her Fifth Amendment privilege against self-

 

3 With regard to the 2014 incident, Bryant testified as follows: Williams, after she 

found suspicious photos on his cell phone, accused him of cheating on her and threatened 

to send him to jail for violating the 2013 protective order. Williams then took Bryant’s 

cell phone into the apartment’s bathroom and used its speaker phone function to call 911. 

When Bryant heard through the bathroom door that Williams was calling 911, he began 

to gather up his “stuff,” such as his shoes and shirt, in preparation for leaving the 

apartment, because under the terms of the protective order he was not supposed to be 

there. As he was preparing to leave the apartment, Williams exited the bathroom, pushed 

him, kicked him, and then hit him in the back with her key chain, scratching his back. 

When Williams hit Bryant in the back with her keys, Bryant “react[ed],” snapping 

backward and hitting Williams in the face with either the back of his head or his elbow. 

Bryant also admitted that he lied to the police when he told them he had never gone 

inside Williams’s apartment, because he did not want to be found in violation of the 2013 

protective order.
6

incrimination outside the presence of the jury, and after the defense read Williams’s

preliminary hearing testimony to the jury, Bryant’s counsel again sought to present 

evidence of Williams’s prior convictions. Once again, the court denied the request, 

ruling that the defense cannot introduce any of Williams’s prior convictions, explaining 

that the defense “can’t impeach somebody who is not here, just like the People cannot.”

On March 2, 2015, the jury, after deliberating for the better part of two days, 

found Bryant guilty on both counts. On May 12, 2015, the court, after striking one of 

Bryant’s two prior “strike” convictions, sentenced Bryant to nine years in state prison. 

Bryant timely appealed.

DISCUSSION

I. The trial court properly excused Juror No. 7

On February 25, 2015, the first day that the jury heard evidence, the court received 

a note from juror number 7 (Juror No. 7). The note stated, “Unfortunately, due to my 

beliefs and morals, I would not be able to . . . pas[s] judgment[] against defendant. Sorry I 

did not bring this to your attention yesterday.”

Outside the jury’s presence, the court told Juror No. 7, “Well, you are not making 

a . . . moral decision on the defendant. You are simply making a factual decision as to 

whether or not something happened. So if [the prosecutor] presents evidence and 

persuades you beyond a reasonable doubt, could you vote guilty?” Juror No. 7 replied, 

“Yes. If—yeah.” He also agreed that he could acquit Bryant if the People failed to prove 

their case. The court stated, “So you can, in fact, perform your duties as a juror, 

determine facts, apply the law, [and] come to a conclusion.” When Juror No. 7 agreed, 

the court then asked, “So what is this about, then?”

Juror No. 7 explained his changing positions as follows: “Sorry. You 

know, . . . —before coming into jury service, my family kind of shook me up a little bit 

about, you know, you know, doing jury duty, that’s why, but I thought about it for a little 

bit, you know. I honestly wish I hadn’t written that now.”

In response, the court repeatedly probed the strength of Juror No. 7’s position: “I 

want to make sure that we have 12 jurors who could be fair, [and] perform [their] duties. 
7

[¶] So are you saying that you wish to withdraw this note at this point?” Juror No. 7 

affirmed that he did. The court asked again whether Juror No. 7 could perform his duties 

and, again, Juror No. 7 stated that he could.

In a sidebar discussion with both counsel, the court stated that it was troubled by 

Juror No. 7’s alternating representations: “[H]e says that he cannot make a decision 

based on his moral issues, that he cannot judge people. So yesterday when I asked him 

initially he said he would be able to do his duties, then he writes a note that says he 

cannot do that, now he said he can.” The court was troubled because it is “pretty 

important for a juror to indicate whether or not they would be able to perform their 

duties.” The court summarized the problem as follows: “So, at this point, we have three 

separate stories. . . . [H]e told the court yesterday that he had no problem, he didn’t raise 

any of these issues, and this morning he sends a note indicating that he cannot perform 

his duties because he has got moral issues and that he doesn’t want to judge people. And 

then, after lunch he changes his mind and he says that, basically, he has been pressured 

by the family. Now he can, in fact, do it. [¶] . . . [H]e basically told the court three 

separate positions on two consecutive days, [and] two positions in one day. So, based on 

that, . . . I just don’t think that he could be a fair [and] impartial juror because he has not 

told the court an honest answer.”

After considering argument from Bryant’s counsel against dismissal, the court 

found good cause to excuse Juror No. 7: “I will find cause. He clearly has told the court 

three separate answers within two days. And we just took way too much time to make 

sure that we have 12 jurors and two alternates who could be fair and impartial. And based 

on his response, I just don’t think he can, in fact, be an impartial juror. I don’t think he 

can perform his duties. So, therefore, I am going to excuse him for cause.”

On appeal, Bryant argues that the dismissal of Juror No. 7 was improper because 

there was “no lawful justification” for the trial court’s decision. As discussed below, we 

disagree.
8

A. STANDARD OF REVIEW

“An accused has a constitutional right to a trial by an impartial jury. [Citations.] 

An impartial jury is one in which no member has been improperly influenced [citations] 

and every member is ‘“capable and willing to decide the case solely on the evidence 

before it.”’” (In re Hamilton (1999) 20 Cal.4th 273, 293–294.) “If at any time, whether 

before or after the final submission of the case to the jury, a juror dies or becomes ill, or 

upon other good cause shown to the court is found to be unable to perform his or her 

duty, . . . the court may order the juror to be discharged . . . .” (§ 1089; see People v. 

Farnam (2002) 28 Cal.4th 107, 140–141.) “What constitutes good cause rests largely in 

the discretion of the trial court.” (People v. Taylor (1961) 189 Cal.App.2d 490, 495; 

People v. Manriquez (1976) 59 Cal.App.3d 426, 431.)

1. Typical abuse of discretion standard for reviewing a trial court’s 

methods in determining whether to excuse a juror

“‘Once a trial court is put on notice that good cause to discharge a juror may exist, 

it is the court’s duty “to make whatever inquiry is reasonably necessary” to determine 

whether the juror should be discharged.’” (People v. Cunningham (2001) 25 Cal.4th 926, 

1029.) Because a court confronted with possible grounds for dismissal must thread the 

proverbial needle between conducting an inquiry that is “adequate” but not “overly 

invasive,” a court is accorded “‘broad discretion’” when it comes to “[t]he manner in 

which [it] conduct[s] its inquiry.” (People v. Fuiava (2012) 53 Cal.4th 622, 710, 712 

(Fuiava); People v. Clark (2011) 52 Cal.4th 856, 971.)

For example, the trial court need not engage in prolonged questioning of the juror 

who is at issue. As explained by Fuiava, supra, 53 Cal.4th 622: “We reject the notion 

that a trial court, having received an admission of disabling bias from a juror, is always 

required to attempt, in essence, to rehabilitate that juror by further exploring what the 

juror really meant. We have recognized—in the context of the evaluation of prospective 

jurors during voir dire—that a trial court has the ‘discretion to decide that a juror’s 

disqualification is so clear that further voir dire is pointless . . . .’” (Id. at p.714.)
9

2. Heightened abuse of discretion standard for reviewing a trial court’s 

decision to excuse a juror

While the “manner in which the trial court conducted its inquiry is subject to 

review for abuse of discretion under the typical standard” (Fuiava, supra, 53 Cal.4th 

at p. 712), “an appellate court’s review of the decision to remove a seated juror is not 

conducted under the typical abuse of discretion standard, but rather under the 

‘demonstrable reality’ test.” (Id. at p. 711, italics added.)

As explained by our Supreme Court in Fuiava, supra, 53 Cal.4th 622, “[t]he 

typical abuse of discretion standard involves an analysis of whether the trial court’s 

decision is supported by ‘“substantial evidence”’ and ‘has been characterized as a 

“deferential” standard.’” (Id. at p. 711.) Under this deferential standard, “‘[e]ven when 

there is a significant amount of countervailing evidence, the testimony of a single witness 

that satisfies the standard is sufficient to uphold the finding.’” (Ibid.) Fuiava further 

explained that, “[i]n contrast, ‘[t]he demonstrable reality test entails a more 

comprehensive and less deferential review. It requires a showing that the court as trier of 

fact did rely on evidence that, in light of the entire record, supports its conclusion that 

bias was established.’” (Id. at p. 712.) In applying the more stringent demonstrable 

reality standard of review, we consider “‘not just the evidence itself, but also the record 

of reasons the court provides.’” (Ibid..) The “heightened” and “more stringent” 

demonstrable reality standard “more fully reflects an appellate court’s obligation to 

protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased 

jury.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052)

However, as Fuiava, supra, 53 Cal.4th 622 also made clear, the demonstrable 

reality test does not permit the reviewing court to re-evaluate the evidence: “‘It is

important to make clear that a reviewing court does not reweigh the evidence under either 

test.’” (Id. at p. 712, italics added.) “As we have consistently cautioned, however, even 

under the demonstrable reality standard the reviewing court does not reweigh the 
10

persuasive value of the evidence.” (Id. at p. 714, italics added.4) “[E]ven when there is 

conflicting evidence of juror bias, an appellate court must recognize that it is for the trial 

court to ‘weigh the credibility of those testifying and draw upon its own observations of 

the jurors throughout the proceedings,’ and the reviewing court must ‘defer to factual 

determinations based on these assessments.’” (Ibid., italics added.) Accordingly, the 

assessment of equivocal or conflicting statements by a juror is usually left to the trial 

court. (See People v. Lynch (2010) 50 Cal.4th 693, 738–745, abrogated on other grounds 

by People v. McKinnon (2011) 52 Cal.4th 610, 636–643 [affirming dismissal of juror due 

to equivocal statements and conduct].)

For example, a juror’s professed willingness to serve impartially can be overcome 

by behavior and demeanor noted by the trial court. (See People v. Zamudio (2008) 43 

Cal.4th 327, 349; People v. Lucas (1995) 12 Cal.4th 415, 489.) Such intangibles are to 

be accounted in favor of the court’s decision: “The trial court was in the best position to 

assess the juror’s state of mind, . . . her demeanor, her vocal inflection and other 

nonverbal cues. ‘Even when “[t]he precise wording of the question asked of [the juror] 

and the answer [she] gave do not by themselves compel [exclusion] . . . ,” the need to 

defer to the trial court remains because so much may turn on . . . demeanor.”’” (People v. 

Wilson (2008) 44 Cal.4th 758, 780; see People v. Scott (2015) 61 Cal.4th 363, 340–341.)

 

4 This deference to the trial court’s assessment of a seated but potentially 

compromised juror is akin to the standard of review for claims regarding prospective 

jurors. “[T]he reviewing court generally must defer to the judge who sees and hears the 

prospective juror, and who has the ‘definite impression’ that [s]he is biased, despite a 

failure to express clear views.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 

1007.) “‘[A]ppellate courts recognize that a trial judge who observes and speaks with a 

prospective juror and hears that person’s responses (noting, among other things, the 

person’s tone of voice, apparent level of confidence, and demeanor) gleans valuable 

information that simply does not appear on the record.’” (People v. Jones (2012) 54 

Cal.4th 1, 41; People v. Riggs (2008) 44 Cal.4th 248, 282.) The United States Supreme 

Court has expressed a similar perspective: “Deference to the trial court is appropriate 

because it is in a position to assess the demeanor of the venire, and of the individuals who 

compose it, a factor of critical importance in assessing the attitude and qualifications of 

potential jurors.” (Uttecht v. Brown (2007) 551 U.S. 1, 9.)
11

Not surprisingly, “while many courts have considered the matter, few have 

disturbed a trial court’s decision to discharge a juror for good cause.” (People v. Bell

(1998) 61 Cal.App.4th 282, 287.)

B. THE TRIAL COURT’S DECISION TO EXCUSE JUROR NO. 7 WAS ROOTED IN A 

DEMONSTRABLE REALITY

Here, Bryant relies on Juror No. 7’s responses to the postnote questioning by the 

court, in which Juror No. 7 expressed the belief that he could render a fair verdict despite 

his written note expressing the exact opposite, a note that he gave to the court just one 

day after being seated as a juror in this case. Bryant’s argument is unpersuasive.

Substantial evidence in favor of the trial court’s decision exists in Juror No. 7’s 

doubts about his ability to render a fair verdict and his desire to be excused from the 

jury—doubts which he thought about overnight and became so convinced of their validity 

that he committed them to paper and delivered the note to the court. Moreover, the trial 

court had the opportunity not only to listen to Juror No. 7’s answers and demeanor during 

voir dire, but also to question and observe him closely following the receipt of his note. 

It is clear from the record that far from reassuring the court, Juror No. 7’s responses 

raised only more questions in the trial court’s mind about Juror No. 7’s ability to perform 

his duty. To the extent there was a conflict between the responses given by Juror No. 7 

prior to and after being seated, it was for the trial court to determine the juror’s true state 

of mind.

Accordingly, based on this record, we conclude the trial court reasonably found 

that, as a demonstrable reality, Juror No. 7 was unable to perform his duty. Thus, we 

reject Bryant’s contention that the trial court abused its discretion in dismissing 

Juror No. 7.

II. The trial court committed prejudicial error when it excluded evidence of 

Williams’s prior felony convictions

The parties agree that the trial court erred when it precluded Bryant from 

introducing evidence of Williams’s prior felony convictions. The only meaningful 
12

dispute between the parties is whether the error implicated Bryant’s federal constitutional 

rights and was harmless.

As discussed below, we agree with both parties that it was an error for the trial 

court to preclude Bryant’s impeachment of Williams via her prior felony convictions. 

However, while we disagree with Bryant as to whether the error violated the 

Confrontation Clause of the United States Constitution (it did not), we agree with him 

that error was not harmless. Accordingly, because the error was prejudicial, we reverse 

the judgment.

A. THE PRECLUSION OF WILLIAMS’S PRIOR FELONY CONVICTIONS WAS AN ERROR

A criminal defendant has federal and state constitutional rights to confront 

witnesses against him or her. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) In 

California, a defendant’s right to impeach the credibility of a witness with evidence of the 

witness’s prior convictions is found in the state constitution. Article I, section 28, 

subdivision (f), of the California Constitution, in pertinent part, provides as follows: 

“Any prior felony conviction of any person in any criminal proceeding . . . shall 

subsequently be used without limitation for purposes of impeachment . . . in any criminal 

proceeding.” (See People v. Jacobs (2000) 78 Cal.App.4th 1444, 1452.)

Even if this right were not enshrined in the state constitution, California courts 

have held that when two different provisions of the Evidence Code (§§12025 & 7886) are 

considered together, they authorize a defendant (or any other party) to attack the 

 

5 Evidence Code section 1202, in pertinent part, provides as follows: “Evidence of 

a statement or other conduct by a declarant that is inconsistent with a statement by such 

declarant received in evidence as hearsay evidence is not inadmissible for the purpose of 

attacking the credibility of the declarant though he is not given and has not had an

opportunity to explain or to deny such inconsistent statement or other conduct. Any other 

evidence offered to attack or support the credibility of the declarant is admissible if it 

would have been admissible had the declarant been a witness at the hearing. . . .”

6 Evidence Code section 788, in pertinent part, provides as follows: “For the 

purpose of attacking the credibility of a witness, it may be shown by the examination of 

the witness or by the record of the judgment that he has been convicted of a felony . . . .”
13

credibility of a hearsay declarant with the declarant’s prior felony convictions, provided 

those convictions show “moral turpitude.” (See, e.g., People v. Jacobs, supra, 78 

Cal.App.4th at pp. 1446, 1449; People v. Little (2012) 206 Cal.App.4th 1364, 1375–

1376; People v. Castro (1985) 38 Cal.3d 301, 313–317.)

Here, the People offered into evidence Williams’s hearsay statements to the 911 

operator and to one of the responding police officers. Accordingly, Bryant was entitled 

under Evidence Code sections 1201 and 788, and under article 1, section 28, 

subdivision (f), of the California Constitution, to impeach her credibility with evidence of 

her prior felony convictions involving moral turpitude. As a result, the trial court’s

refusal to allow Bryant to do so was an error.

B. THE ERROR DID NOT VIOLATE THE CONFRONTATION CLAUSE

The United States Supreme Court has held that “a criminal defendant states a 

violation of the Confrontation Clause by showing that he was prohibited from engaging 

in otherwise appropriate cross-examination designed to show a prototypical form of bias 

on the part of the witness, and thereby ‘to expose to the jury the facts from which 

jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”

(Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) However, as our Supreme Court 

has held that “the confrontation clause is concerned solely with hearsay statements that 

are testimonial, in that they are out-of-court analogs, in purpose and form, of the 

testimony given by witnesses at trial.” (People v. Cage (2007) 40 Cal.4th 965, 984, 

italics added.)

Here, because the hearsay statements at issue were Williams’s reports to the 911 

operator and to the responding police officers, they were nontestimonial in nature—that 

is, they were “‘made in the course of police interrogation under circumstances objectively 

indicating that the primary purpose of the interrogation is to enable police assistance to 

meet an ongoing emergency.’” (People v. Cage, supra, 40 Cal.4th at p. 982; see People v. 

Brenn (2007) 152 Cal.App.4th 166, 176–177 [statements to 911 operator & responding 

police nontestimonial]; People v. Banos (2009) 178 Cal.App.4th 483, 492–493, 499 

[statements to 911 operator nontestimonial]; People v. Byron (2009) 170 Cal.App.4th 
14

657, 661–662, 675 [same]; see generally Davis v. Washington (2006) 547 U.S. 813, 822, 

827; Crawford v. Washington (2004) 541 U.S. 36, 59, 68.)

Because the trial court’s error did not implicate the Confrontation Clause, it is not 

subject to the harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 

24—that is, the harmless “beyond a reasonable doubt” standard. Instead, it is subject to 

analysis under People v. Watson (1956) 46 Cal.2d 818, 836—that is, a defendant must 

demonstrate that “it is reasonably probable that a result more favorable to [the defendant] 

would have been reached in the absence of the error.” (See People v. Cudjo (1993) 6 

Cal.4th 585, 611–612 [applying Watson standard to erroneous exclusion of defense 

evidence].) A “‘reasonable probability’” does not mean more likely than not, but 

“merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. 

v. Superior Court (1994) 8 Cal.4th 704, 715.) In other words, a “‘reasonable probability 

is a probability sufficient to undermine confidence in the outcome.’” (People v. Bolin

(1998) 18 Cal.4th 297, 333.)

C. THE EXCLUSION OF WILLIAMS’S PRIOR FELONY CONVICTIONS WAS NOT 

HARMLESS

After considering all of the evidence, we hold that it is reasonably probable that 

Bryant would have achieved a more favorable result if the trial court had allowed him to 

introduce evidence of Williams’s prior felony convictions. Our decision is based on the 

following factors.

First, Williams was not merely one of many prosecution witness; she was the 

People’s single most important witness. The jury, however, never got a chance to see and 

evaluate her credibility, never had the opportunity to assess her demeanor and the 

veracity of her varying descriptions of the events at issue, because Williams never 

testified at trial.

Second, while there was other evidence contradicting Williams’s hearsay 

statements on material points, namely her own testimony at the preliminary hearing, the 

jury could have received a significantly different impression of Williams’s credibility had 
15

Bryant been permitted to pursue his proposed line of impeachment. As it was, the jury 

had to evaluate the credibility of Williams’s hearsay statements in a historical vacuum.

Third, because Williams did not testify at trial, no live, in court cross-examination 

was possible; as a result, the only cross-examination that could occur was through 

impeachment via the introduction of other evidence, such as the preliminary hearing 

transcript. Under such constrained circumstances, it would have been appropriate to 

allow as much impeachment evidence as was both practical and appropriate. Critically, 

other than its mistaken belief about the admissibility of the convictions, the trial court 

never stated (and the record does not suggest) that evidence of Williams’s prior felony 

convictions would have been inadmissible under Evidence Code section 352—that is, 

there is no indication that the probative value of Williams’s prior felony convictions 

would have been “substantially outweighed by the probability that [their] admission 

[would] (a) necessitate undue consumption of time or (b) create substantial danger of 

undue prejudice, of confusing the issues, or of misleading the jury.” Given that the issue 

of prior felony convictions was limited to just one witness, there was no danger of the 

trial “degenerating into [a] nitpicking war[] of attrition over collateral credibility issues.” 

(People v. Wheeler (1992) 4 Cal.4th 284, 296.)

Finally, the People’s case against Bryant, while strong, was not “overwhelming.” 

There were no third party eyewitnesses to the altercation between Bryant and Williams; 

there was only their contending (and, in the case of Williams, changing) versions of 

events. The People attempted to make up for the lack of other eyewitnesses by 

introducing, inter alia, evidence of Bryant’s history of domestic violence. Even though 

the People were able to put Bryant’s alleged conduct in a larger historical context, and 

Bryant was not able to do the same for Williams due to the exclusion of the prior felony 

convictions, the jury did not return an especially quick verdict. The jury began its 

deliberations at 10:47 a.m. on Friday, February 27, 2015. The jury deliberated through 

the end of the day without reaching a verdict. The jury resumed its deliberations on 

Monday, March 2. The jury did not reach its verdict until just a few minutes before noon 

on March 2. The fact that the jury was forced to deliberate for approximately eight hours 
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over the course of two days suggests that the verdict was anything but a foregone 

conclusion, making the exclusion of the prior felony convictions potentially quite 

significant.

This case was, in large part, a he said, she said controversy, making the credibility 

of the accused and his accuser of central, if not critical, importance to the jury. Because 

Williams did not testify in person, because the jury heard Williams’s voice only on the 

911 tape—her testimony at the preliminary hearing was read to the jurors—and because 

the jury apparently did not consider the case to be an open and shut, slam dunk, it is 

reasonably probable that Bryant would have achieved a more favorable result if the trial 

court had allowed him to introduce evidence of Williams’s prior felony convictions for 

crimes of moral turpitude. Accordingly, we hold that the trial court’s error was not 

harmless.

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

LUI, J