1

Filed 9/29/23 P. v. Dekalb CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DEKALB,

Defendant and Appellant.

A162755

(Contra Costa County Super. Ct.

No. 05-190796-3)

Defendant James Dekalb seeks reversal of a judgment of conviction 

issued upon a jury verdict finding him guilty of first degree burglary and two 

misdemeanors. He was sentenced to 12 years in state prison for the burglary 

offense. 

At trial, Dekalb presented an expert psychologist who testified that 

Dekalb had a mental disorder and that the disorder impaired his thinking 

and planning ability. On the strength of this testimony, Dekalb argued he 

lacked specific intent to commit burglary. 

Dekalb claims error for multiple reasons, but principally because the 

trial court allowed the prosecutor to impeach his expert psychologist with 

inadmissible testimonial hearsay from medical records prepared the day 

before the subject incident. Dekalb also argues that the prosecutor engaged 

in prejudicial prosecutorial misconduct. 
2

We reject these arguments. Assuming arguendo that there was court 

error or prosecutorial misconduct, we conclude any such error or misconduct 

was harmless on this record. Accordingly, we affirm.

I. BACKGROUND

A. The Charges Against Dekalb

In May 2019, the Contra Costa District Attorney filed an information 

charging Dekalb with first degree burglary (Pen. Code, § 459),

1 illegal 

possession of tear gas with a prior conviction (§ 22810, subd. (a)), and illegal 

possession of a stun gun (§ 22610, subd. (a)), all arising out of an incident 

that occurred on February 25, 2019. The district attorney further alleged 

that Dekalb had been convicted of several different serious or violent felonies 

(§§ 667, subds. (a)(1), (d) & (e), 667.5, subd. (b), 1170.12, subds. (b) & (c), & 

1203, subd. (e)(4)).

B. Pre-Trial Proceedings

After his counsel expressed a doubt about his competency to stand trial,

Dekalb was examined by a court-appointed psychologist, Dr. Marlin Griffith.

In July 2019, the court, based on a report by Dr. Griffith, found that Dekalb 

was unable to understand the nature and purpose of the proceedings or work 

with his counsel in presenting a defense and committed him to the 

Department of State Hospitals for restoration of his competency. Sixteen 

months later, in November 2020, the court, based on a report by Dr. Griffith,

found Dekalb competent to stand trial and reinstated criminal proceedings. 

Prior to trial, the prosecutor moved in limine to exclude as not relevant 

police officer testimony that, beginning two days before the subject incident, 

on February 23, 2019, Dekalb was placed on a psychiatric hold under Welfare 

and Institutions Code section 5150. Dekalb’s counsel contended the evidence, 

1 Undesignated references are to the Penal Code.
3

including a report that the officer found Dekalb wandering into traffic and 

talking nonsensically, was relevant because it showed Dekalb, just a few days 

before the incident, exhibited the kind of “non-linear, non-planned, 

disorganized thinking” that was at the heart of the defense. The court 

granted the prosecutor’s motion. 

Dekalb’s defense sought to raise a reasonable doubt that he intended to 

steal things when he entered the victim’s home, a necessary element of first 

degree burglary,

2 contending his mental condition impeded his ability to form 

that intent. His defense counsel retained Dr. Griffith to conduct another 

psychiatric examination of Dekalb about a month before trial and sought to 

introduce Dr. Griffith as an expert witness. The prosecution moved to 

exclude testimony by him regarding Dekalb’s mental state at the time of the 

incident or, in the alternative, for the court to hold a hearing under Evidence 

Code section 402 to consider the issue. 

The trial court held the section 402 hearing. It barred Dr. Griffith from 

testifying about Dekalb’s competency to stand trial; limited his testimony to 

mental diseases, defects, or disorders that affect a person’s ability to form 

specific intent; and issued a ruling regarding Dekalb’s psychiatric hold that is 

at the heart of this appeal. 

The background and specifics of that ruling are as follows. Prior to the

section 402 hearing, the defense sought to have Dr. Griffith testify regarding 

medical records created during the psychiatric hold, on February 23 and 24, 

2019 (5150 records), that the defense had subpoenaed. The prosecution and 

2 See section 459 (“Every person who enters any house . . . with intent 

to commit grand or petit larceny or any felony is guilty of burglary”); section 

460, subdivision (a) (“Every burglary of an inhabited dwelling house . . . is 

burglary of the first degree”).
4

the court thought such testimony would raise “a Sanchez hearsay problem,”

3

but the court allowed defense counsel to question Dr. Griffith on the subject

at the section 402 hearing. Defense counsel neglected to ask Dr. Griffith 

about the records, but proffered that Dr. Griffith would testify they were 

relevant to the question of Dekalb’s mental state at the time of the 

February 25, 2019 incident. The court ruled that Dr. Griffith could not

volunteer any testimony about the records because it would constitute 

hearsay under Sanchez. It directed Dr. Griffith to make “no mention about 

that 5150 . . . , so I don’t want you to volunteer any testimony on it, . . . so just 

don’t mention it.” It also denied defense counsel’s request to present more 

limited testimony about the records, stating the defense had “enough with 

Dr. Griffith based on his own personal evaluation of Mr. DeKalb that he 

exhibited all the symptoms of being bipolar,” the records did not add 

anything to Dr. Griffith’s testimony, and the defense would be able to ask a 

hypothetical drawing from the facts of the case. 

Dekalb’s counsel then noted the prosecutor, in her cross-examination of 

Dr. Griffith at the hearing, had referred to a note in the 5150 records 

indicating that Dekalb “had a coherent and goal-oriented thought process at 

one point” and asked the court to exclude this reference as also involving 

inadmissible hearsay. The court denied this request, telling Dekalb’s counsel 

there was a difference in how the two sides were using the records because

the prosecutor was “not using [the 5150 records] for the truth of the matter. 

It could be completely false that he was goal directed. The difference . . . is 

that . . . [Dr. Griffth] says he relied upon those records and it’s not consistent 

with his diagnosis and impression and opinions. [¶] So it almost doesn’t 

matter what it was except that it’s different from what the doctor says his 

3 See People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). 
5

opinion is. So there’s a big difference between letting it come in for the truth 

of the matter, which is what you want to do, which is not proper because it’s 

hearsay, and [the prosecutor’s] use of it as impeachment.” At Dekalb’s 

counsel’s request, the court said it would instruct the jury that the 

prosecutor’s use of the 5150 records was “solely for impeachment and . . . not 

for the truth of the matter,” but did not so instruct to the jury.

C. The Prosecution’s Case

1. Eyewitness Testimony

At trial, the prosecution presented three eyewitnesses of the subject 

incident and its immediate aftermath. First, Andrea Z., testifying through an 

interpreter, said that she returned to her Antioch, California home at about 

1:00 p.m. on February 25, 2019, after doing an errand to find a strange man 

in her home. Her testimony on direct was somewhat confused. At first, she

indicated she was by her car when she saw the man and began running after 

him, but then said she first saw the man inside her house. The man carried a 

briefcase that was not hers, some candles, some boxes, and two of her jewelry

chains, which she took back from him. When she took the chains, he threw 

the boxes down and pepper-sprayed her. 

After a lunch recess, Andrea Z. testified that she was nervous and the 

details of the incident, two years old at the time of trial, were fuzzy. Asked 

further about the incident, she said she was inside her house when she saw 

the strange man in her bedroom. She saw him take her chains (which she 

also called bracelets), which she had left out on a bedroom vanity. She 

chased him and her jewelry fell to the ground. She picked them up and 

continued to chase the man to see what else he had. He then pepper-sprayed 

her, which prevented her from seeing anything else. 
6

Andrea Z. further testified that at the time of the incident, she always 

left her house doors unlocked. The front fence around the house was closed 

but a back fence was open. 

On cross-examination, Andrea Z. said she had had two strokes since

the incident, which she said on redirect “blocked” her memory. On cross, she 

again said she saw the strange man when getting out of her car, and also said

that she “saw something weird” and went into her house. 

Asked on cross if she recalled speaking twice to a defense investigator, 

she said she recalled speaking by phone once in March 2021 to a woman, with

her daughter’s translation help. She denied telling the investigator that she 

saw the man coming out of her house when she got out of her car, saying she 

told her she saw him coming out her room, and she denied telling the 

investigator that she took things out of the man’s hands when she chased 

him. Rather, she said, when she chased him, “he had a lot of stuff in his 

hands” and let go of her chains. She also said he pepper-sprayed her from 

about a meter away, and denied telling a female police officer in February 

2019 that he sprayed her from about 30 feet away. She acknowledged that 

she did not see the man had any crowbars or pry bars or the like, nor see any 

damage to her door or windows. 

The second eyewitness was H.S., who lived across the street from 

Andrea Z. At about 1 p.m. on February 25, 2019, he saw Dekalb walking 

away from his family’s car and papers from the car everywhere, as if the car 

had been rummaged through. From a distance, he followed Dekalb, who was 

“pacing down the street frantically,” and called 911. Dekalb started yelling 

things at him. Andrea Z. also followed Dekalb and said he had broken into 

her home and stolen things. Dekalb pepper-sprayed Andrea Z. from a 

distance of five to ten feet away and she stopped pursuing him, but H.S. 
7

continued on. Dekalb threw the spray can down and speed walked away, 

though he stopped to tie his shoes many times. He also briefly spoke to a 

neighbor sitting on a stoop. About 15 to 20 minutes after H.S. began 

following him, police arrived and detained Dekalb. H.S. showed police the 

location of the pepper spray can. 

The third eyewitness was an Antioch police detective, who testified that 

H.S. flagged him down and directed him to Dekalb, who matched the 

dispatcher description of a fleeing suspect wearing a dark-colored hoodie and 

bandana over his face; that Dekalb did not resist police, and was found to 

have a working stun gun in his sweatshirt pocket and nothing else of 

significance, such as stolen items; that he detained Dekalb and placed him in 

his patrol car in less than five minutes, told him his Miranda4 rights, which 

Dekalb said he understood, and five minutes later drove Dekalb for about five 

or 10 minutes to a police station. 

The detective further testified that Dekalb continually cursed at the 

detective and rambled about unrelated matters without the detective talking 

to him. In the middle of doing so, Dekalb spontaneously made comments 

about the burglary, saying, “ ‘That jewelry wasn’t even that nice,’ ” “ ‘The 

bitch was coming at me so, yeah, I sprayed her,’ ” and, “ ‘That place wasn’t 

even locked, and all that shit was just lying there.’ ” The detective wrote 

these statements down as soon as he arrived at the police station and 

included them later in his report. 

2. Testimony About a Prior Incident

Dekalb’s grandmother testified that Dekalb stole items from her house

on a weekend in 2015 when she was out of town. She returned to her house

after her neighbor called and said her truck was gone to find her truck and 

4 See Miranda v. Arizona (1966) 384 U.S. 436.
8

numerous items from her home missing, including all of her and her 

husband’s jewelry, a laptop, a pistol, and three long guns. A security door in 

the garage was torn open and the house keys hanging inside the garage door 

were gone. Police recovered a missing gun and jewelry from Dekalb’s 

backpack. When the grandmother called Dekalb about the gun, he said he 

did not know what she was talking about and that he had been at Bible 

study. 

During cross-examination, the trial court, upon the prosecutor’s 

relevance objection, prohibited the grandmother from testifying about 

whether Dekalb began acting strangely when he was 18 or 19 years old and 

denied the defense request for a side bar on the subject.

D. The Defense Case

At trial, Dr. Griffith, who said he was a clinical forensic psychologist,

was allowed to testify as a defense expert in the field of clinical and forensic 

psychology and the diagnosis of bipolar disorder. On direct, he testified that, 

as a court-appointed psychologist, he examined Dekalb in June 2019. He 

concluded at the time that Dekalb’s “diagnosis was unclear” but thought his 

behavior, demeanor, and comments “were consistent with . . . schizoaffective 

disorder bipolar type.” 

According to Dr. Griffith, the “schizo” part of schizoaffective disorder

involves “hallucinations, delusions, [and] thought disorder” and the 

“affective” part involves “unstable moods, be it manic or depressive mood 

states.” “Bipolar type” identifies “the mood aspect of the disorder as more 

prominent.” A manic state involves an “elevated and expansive mood or 

increased level of energy,” a person being “hyper verbal,” and “excessive 

activities” with the person having “several balls in the air . . . without 

completing anything.” With bipolar disorder, “the thought process is . . . not 

focused, jumping from one subject to another. It’s disorganized in that sense. 
9

The person is distractible, not able to . . . really think things through or plan 

things in a normal fashion.” “The thought process is not focused in the sense 

that the person is thinking through . . . what the situation is or what they are 

about to engage in. Their thought process is sort of jumping back and forth.” 

A person might exhibit impulsive behavior. 

Dr. Griffith further testified that he met with Dekalb in June 2019 for 

about 40 minutes. Dekalb “was extremely agitated, he lacked focus, he was 

rambling nonstop. I was not able to get him to respond to the questions that 

I was asking him. He was on his own course.” Dr. Griffith “did not observe 

any psychotic symptoms,” such as hallucinations, and thought it was 

“questionable” whether Dekalb was having any delusions, but he “just wasn’t 

on subject long enough to kind of understand what was going on.” 

Dekalb’s counsel then posed a hypothetical to Dr. Griffith that was 

tailored to the defense view of the facts. The hypothetical included that a 

man walks into a stranger’s house in the middle of the day without any 

burglary tools and walks back out with a few bracelets and candles, which he 

returns or discards upon being confronted by the homeowner. He then speed 

walks down the sidewalk without running into other properties, stopping to 

talk briefly to a person sitting on his stoop, does not run from police, and 

upon being detained continues to make obscene and off-topic comments, 

mostly speaking to himself. Four months later, he’s observed being 

“extremely agitated, non-focused, rambling nonstop, unresponsive to simple 

questions.” Dekalb’s counsel asked Dr. Griffith if the man displayed 

symptoms consistent with schizoaffective disorder bipolar type. 

Dr. Griffith said his “diagnostic impression” was that “many of the 

behaviors . . . would be consistent” with that disorder based on “some 

rambling, disorganized thought process, [and] disorganized behavior”; he 
10

clarified upon further questioning, “I guess not necessarily disorganized 

behavior, but certainly not goal-directed behavior.” 

On cross-examination, Dr. Griffith was asked about his March 2021 

report, in which he concluded that Dekalb was suffering from schizoaffective 

disorder, bipolar 1, which was the manic type. He testified that he based his 

conclusion on “[a] review of medical records that I had access to at that time, 

to add to my observations of, and conclusions.” Asked about whether 

planning could be present for those with bipolar disorder who experience 

disorganized planning, Dr. Griffith said that planning was not a single 

activity, and that “[i]t certainly can vary from one end of mild planning to 

extremely excessive planning. So I guess the answer would be yes, there 

could be some planning even if the person is disorganized. It’s probably more 

on the disorganized . . . plan end of the spectrum.” Also, Dr. Griffith 

acknowledged that the DSM-5, which was the recognized manual of all the 

mental illnesses in his field, notes an increase in goal-directed activity in 

both bipolar 1 and 2 types. 

The prosecutor then asked, “Are you aware of medical records from 

February 24th, 2019, that note Mr. DeKalb’s thought process was goaldirected and coherent?” Dr. Griffith said he saw the note. On redirect, he 

testified that he did not prepare the note, and that it did not change his 

diagnosis of Dekalb’s bipolar disorder because the disorder could be in 

remission at any particular point and could be exacerbated by stress 

conditions and trauma. 

After Dr. Griffith testified, Dekalb’s counsel again asked that the 5150 

records subpoenaed by the defense be admitted into evidence, indicating that 

they came with a declaration by the custodian of records so as to overcome a 

hearsay objection, an apparent reference to the business records hearsay 
11

exception.5 Counsel argued the prosecutor’s cross-examination opened the 

door to the records, contended the prosecutor had misleadingly left out that 

the 5150 records indicated Dekalb displayed a goal-oriented and coherent 

thought process at a time when he was given antipsychotic medication, and 

argued a violation of Dekalb’s state and federal due process rights had 

occurred that should be remedied by the admission of the 5150 records. The 

court said it continued to find any evidence of Dekalb’s 5150 hold “not 

relevant to the charges,” that the prosecutor’s questioning did not “open the 

door to the 5150 by any stretch of the imagination,” and denied the defense 

request. 

Dekalb also presented the testimony of his defense investigator, who 

said she spoke by phone in Spanish to Andrea Z. in April 2019 and March 

2021; and also testified that Andrea Z. said in both phone calls, with minor 

differences, that on the day of the incident she came home to find a man in 

her driveway holding two of her chains, that she took the chains out of his 

hands, that the man pepper-sprayed her from about 25 feet away, and that 

she was never in the house with the man at the same time. 

E. Verdict, Sentence, and Appeal

During deliberations, the jury’s written questions to the court included,

“Do we have to all agree that there was intent in order for a guilty verdict on 

count one (459)?” The court responded, “Yes.” 

The jury found Dekalb guilty of all three counts. The court found 

Dekalb had suffered a May 2017 prior conviction for a serious or violent 

felony, which satisfied certain enhancement or strike allegations, and 

dismissed the two section 667.5, subdivision (b) allegations. The court 

sentenced Dekalb to the aggravated term of six years for first degree 

5 See Evidence Code sections 1271, 1560–1567.
12

burglary, which it doubled because of the prior strike allegation to 12 years in 

state prison. It sentenced him on the remaining two misdemeanor counts to 

terms of 364 and 60 days in county jail that were already satisfied by 

Dekalb’s custody credits, awarded him additional conduct credits, and 

imposed various fines and fees. 

Dekalb filed a timely notice of appeal. 

II. DISCUSSION

A. Any Trial Court Error Regarding the Prosecutor’s Impeachment

of Dr. Griffith Was Harmless

Dekalb argues the trial court prejudicially erred by letting the 

prosecutor impeach Dr. Griffith with a portion of the 5150 records which 

noted that Dekalb displayed a goal-oriented and coherent thought process the 

day before the incident. 

In support of this claim, Dekalb contends that the prosecutor’s 

impeachment evidence should have been excluded under Evidence Code 

section 352 and was inadmissible “testimonial” hearsay in violation of his 

Sixth Amendment right to confrontation under Crawford v. Washington 

(2004) 541 U.S. 36. But his primary contention is that the trial court erred

because the impeachment evidence involved case-specific hearsay prohibited 

from admission under Sanchez, supra, 63 Cal.4th 665. 

In Sanchez, our Supreme Court held in relevant part that case-specific 

statements related by a prosecution expert concerning the defendant’s gang 

membership constituted inadmissible hearsay under California law. 

(Sanchez, supra, 63 Cal.4th at p. 670.) The court adopted the following rule:

“When an expert relates to the jury case-specific out-of-court statements, and 

treats the content of those statements as true and accurate to support the 

expert’s opinion, the statements are hearsay. It cannot logically be 

maintained that the statements are not being admitted for their truth. If the 
13

case is one in which a prosecution expert seeks to relate testimonial hearsay, 

there is a confrontation clause violation unless (1) there is a showing of 

unavailability and (2) the defendant had a prior opportunity for crossexamination, or forfeited that right by wrongdoing.” (Id. at p. 686, fn. 

omitted.) The court disapproved of its prior decisions holding that the 

matters upon which an expert relied in forming an opinion are not offered for 

their truth or that a limiting instruction, coupled with a trial court’s 

evaluation of the potential prejudicial impact of the evidence under Evidence 

Code section 352, sufficiently addresses hearsay or confrontation concerns. 

(Sanchez, at p. 686, fn. 13.)

Dekalb further contends that the trial court’s error here was similar to 

that found by the appellate court in People v. Malik (2017) 16 Cal.App.5th 

587 (Malik). In Malik, the trial court allowed the prosecution, in the course 

of cross-examining a defense expert in post-traumatic stress disorder, to 

relate certain case-specific testimonial hearsay statements contained in 

various police and sheriff reports spanning more than a decade indicating 

that the defendant had engaged in violence in the past. (Id. at pp. 594–596.) 

The appellate court “found no authority standing for the proposition that the 

breadth of permissible cross-examination extends to the admission of casespecific testimonial hearsay in violation of a defendant’s right of 

confrontation,” characterized the circumstances before it as “arguably 

represent[ing] the flip side of Sanchez,” and concluded that “the reasoning of 

Sanchez applies equally in these circumstances.” (Id. at pp. 597, 598.) It 

concluded the trial court’s admission of the testimonial hearsay via crossexamination violated the defendant’s right of confrontation, although it also 

concluded the error was harmless. (Id. at pp. 598–600.) 
14

We agree that the circumstances of this case are similar to those 

discussed in Malik insofar as they suggest the court’s admission of the 

prosecutor’s impeachment evidence violated Sanchez. Nonetheless, we 

conclude we do not need to decide this issue, nor further discuss the merits of 

any of Dekalb’s other arguments, because, assuming there was error, it was 

harmless, as we now discuss.6

As Dekalb acknowledges, “[w]e evaluate prejudice resulting from the 

allowance of expert testimony in violation of Sanchez under the standard of 

People v. Watson (1956) 46 Cal.2d 818, which requires reversal if ‘it is 

reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of error.’ (Id. at p. 836; see People v. 

Ochoa (2017) 7 Cal.App.5th 575, 589.)” (People v. Jeffrey G. (2017) 

13 Cal.App.5th 501, 510.) We evaluate Evidence Code 352 error under the 

state standard as well. (People v. Marks (2003) 31 Cal.4th 197, 226–227.)

It is true that, in one strand of this argument, Dekalb invokes

Crawford v. Washington, thereby suggesting we should apply the federal 

standard for prejudice. But “[t]estimonial statements are those made 

6 The trial court initially excluded the 5150 records on Sanchez hearsay 

grounds during the section 402 hearing. Later, during trial, when Dekalb’s 

counsel began arguing to the court that the 5150 records were admissible, 

apparently under the business records exception to the hearsay rule, the 

court said that, regardless, it would exclude the records as not relevant to the 

issues of the case, despite the defense contention that Dekalb’s mental 

condition raised a reasonable doubt that he entered Andrea Z.’s house with 

the intent to steal. On appeal, Dekalb does not challenge the court’s view of 

the relevance of the 5150 records and, in any event, the issue is of no 

consequence in light of our conclusion that any error was harmless under the 

circumstances of the incident and the limited significance of Dr. Griffith’s 

trial testimony.
15

primarily to memorialize facts related to past criminal activity, which could 

be used like trial testimony. Nontestimonial statements are those whose 

primary purpose is to deal with an ongoing emergency or some other purpose 

unrelated to preserving facts for later use at trial.” (Sanchez, supra, 

63 Cal.4th at p. 689.) Dekalb does nothing to establish the testimonial 

nature of the 5150 records used by the prosecutor and nothing in the trial 

record indicates they were testimonial in nature. Regardless, our conclusion 

that any error by the trial court was harmless would be the same under the 

“harmless beyond a reasonable doubt” federal standard for evaluating 

prejudice articulated in Chapman v. California (1967) 386 U.S. 18, 24.

Dekalb argues the trial court’s error was prejudicial because this was a 

close case, as indicated by the jury’s question to the court on the issue of 

intent, in which relatively minor changes in the record can be important, and 

because the court’s error went directly to the heart of his defense. 

We conclude this was not a close case regarding Dekalb’s intent to 

burglarize Andrea Z.’s house, notwithstanding the jury’s question for the 

court, and that there was an overwhelming amount of circumstantial 

evidence indicating that Dekalb entered Andrea Z.’s house with the intent to 

steal things, none of which Dekalb grapples with in arguing prejudice. This 

evidence includes Andrea Z.’s testimony that she found Dekalb at around 

1:00 p.m. taking jewelry from her bedroom after he entered her house, that 

he ran out of the house when she discovered him in her bedroom, that he 

dropped stolen items as she chased him, and that he pepper-sprayed her as 

she approached him; H.S.’s testimony corroborating that he encountered 

Dekalb acting suspiciously in the vicinity of his family’s car and that he and 

Andrea Z. followed Dekalb, who pepper-sprayed Andrea Z., discarded the 

spray can, and speed walked away; and the detective’s testimony indicating 
16

that Dekalb, when he was detained, matched the description of a fleeing 

suspect wearing a hoodie and a bandana, was found to have a working stun 

gun in his sweatshirt pocket, and volunteered to the detective that the 

jewelry “wasn’t even that nice,” that he deliberately sprayed Andrea Z., and 

that her house “wasn’t even locked” and the items he took from the house 

were “just lying there.” 

This evidence strongly points to the conclusions that Dekalb, having 

with him a hoodie, bandana, pepper spray, and a working stun gun in order 

to prevent his identification and arm himself, found and entered an unlocked 

house in the middle of the day, when people were more likely to be at work or 

school, in order to search its interior for items to steal, found and took 

potentially valuable items—jewelry—in a bedroom and, knowing he was 

caught in the act of burglary, fled upon being discovered and, aware he was 

being followed, discarded the items he had stolen before the police could 

arrive. These conclusions are confirmed by his spontaneously offered 

statements to a police detective in the minutes after the incident that 

pointedly highlighted matters directly relevant to his entering an unlocked 

house to steal things. To add to this evidence, Dekalb’s own grandmother 

testified that he had broken into her home in 2015 and stolen things from her 

as well, providing further support for the conclusion that Dekalb committed a 

burglary of Andrea Z.’s house. 

Dekalb’s theory about his lack of intent is a stretch given the facts of 

the case: in effect, he contends that, in the thrall of a mental disorder, he just 

happened to enter a fenced-off, unlocked house in the middle of the day with 

no particular intent in mind before being discovered taking jewelry from a 

vanity in the bedroom of the house and seeking to evade those who followed
17

after him as he fled. This theory is fatally undermined by the evidence we 

have discussed.

Further, Dr. Griffith’s testimony, without the prosecutor’s challenged 

impeachment evidence, was far less than definitive regarding whether

Dekalb entered Andrea Z.’s house with the intent to steal things. Dr. Griffith 

acknowledged that, though during his June 2019 examination of Dekalb, 

Dekalb behaved in a manner consistent with schizoaffective disorder bipolar 

type, Dr Griffith could not reach a diagnosis for him at that time. Further, 

Dr. Griffith, while he testified that in his opinion Dekalb suffered from a 

schizoaffective disorder, bipolar 1, that could result in disorganized thinking

and affect his ability to plan, did not testify that the disorder prevented 

Dekalb from entering Andrea Z.’s home with the intent to steal things. To 

the contrary, his testimony merely suggests this might be the case, while also 

stating that “disorganized” planning “can vary from one end of mild planning 

to extreme excessive planning. So . . . yes, there could be some planning even 

if the person is disorganized.” Dr. Griffith also acknowledged that the “DSM” 

manual, which all psychologists use to diagnose mental illness, states that in 

a bipolar and manic episode there is an increase in goal-directed activity for 

bipolar 1 (Dr. Griffith’s specific diagnosis for Dekalb in March 2021). And he 

further testified that the disorder can be in remission at any time. In short, 

Dr. Griffith’s testimony amounted to little more than speculation about 

Dekalb’s state of mind when he entered Andrea Z.’s house on February 25, 

2019.

In sum, assuming the trial court erred in allowing the prosecutor’s 

challenged impeachment, it was not reasonably probable that Dekalb would 

have fared better in the absence of such an error and, further, any error was 

harmless beyond a reasonable doubt. 
18

B. Any Prosecutorial Misconduct Also Was Harmless

Dekalb also argues the prosecutor engaged in prejudicial misconduct in 

violation of his federal and state rights to due process. 

1. Relevant Proceedings Below

The parties’ closing arguments focused primarily on whether or not 

Dekalb entered Andrea Z.’s house with the intent to steal things, some 

portions of which are relevant to Dekalb’s misconduct claim.

Specifically, in his closing argument, Dekalb’s counsel argued that the 

“[p]rosecutor also, in her cross-examination, referred to, well, how come your 

opinion’s not affected by this note from the day before, February 24, 2019? A 

note that at that time Mr. DeKalb was goal-oriented and coherent. Who 

produced that note? Dr. Griffith told you it wasn’t him. [¶] The prosecution 

has presented this note as a reason to doubt Dr. Griffith’s testimony. She’s 

presented zero evidence about where that note came from, who authored it 

and under what circumstances.” The court interrupted to admonish counsel 

that he had “crossed the line” because “that was subject to a motion outside 

the presence of the jury” and a court ruling, and was not the prosecutor’s 

fault. When counsel continued, he added, “And, in any event, Dr. Griffith 

told you that it did not affect his opinion.” 

In rebuttal, the prosecutor, in arguing that Dr. Griffith’s testimony was 

unreliable, said, “I also asked [Dr. Griffith], as [Dekalb’s counsel] also 

addressed in his closing, . . . if [he] was aware that there were medical 

records on February 24, 2019, which . . . noted Mr. Dekalb possessed goaloriented behavior or thought process. Dr. Griffith conceded and said, ‘Yes.’ 

And so just only last month were we provided with this bipolar diagnosis.” 

Also in rebuttal, the prosecutor said, “Mr. DeKalb might have bipolar. 

I don’t know that that was proven to you based on Dr. Griffith’s testimony at 

all. [Dekalb’s counsel] perhaps raised the possibility, but is it reasonable? 
19

No.” Dekalb’s counsel objected that this was improper argument that 

constituted prosecutorial misconduct and, when the court asked for a further 

explanation, suggested a side bar so that he could explain his objection. The 

court indicated it would discuss the matter later on the record and the 

prosecutor continued with her argument. The prosecutor went on to argue, 

“Even if we accept that Mr. DeKalb has bipolar, it does not negate the intent. 

Mental health might make us do things we don’t like, but it doesn’t mean 

that we did not intend to do those things.” 

At the conclusion of closing argument, the trial court gave further

instructions to the jury, including, “The People have the burden of proving 

beyond a reasonable doubt that the defendant acted with the required intent 

or mental state, specifically the intent to commit a theft when he entered a

building. If the People have not met this burden, you must find the 

defendant not guilty of burglary. [¶] I want it clear to all jurors that at no 

point in time does the burden shift to the defense, okay? There may have 

been some—a little bit of slippage there, [the prosecutor], on that aspect, but 

it’s clear, Ladies and Gentlemen, that it is the People’s burden all around. 

You understand that? Okay.” 

Later, after the jury was dismissed for the day, Dekalb’s counsel argued 

that a mistrial was in order. He contended the prosecutor committed 

misconduct by her remarks, since she “knows full well that Mr. DeKalb does, 

in fact, have schizoaffective disorder bipolar type,” including because he spent 

months during the pendency of the case being “treated precisely for that 

disorder,” and, therefore, the prosecutor deliberately made false statements 

to the jury. The court rejected the misconduct claim because the prosecutor 

was entitled to argue from the evidence presented by Dr. Griffith and said 
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that any improper inference by the prosecutor did not rise to such serious 

misconduct as to require a mistrial. 

The court appears to have agreed with Dekalb’s counsel that the 

prosecutor’s remarks had improperly shifted the burden to the defense to 

prove Dekalb had a bipolar disorder, but ruled that its re-instruction to the 

jury that the defense had no burden of proof cured the impropriety.

2. Legal Standards

“Under the federal Constitution, a prosecutor commits reversible 

misconduct only if the conduct infects the trial with such ‘ “unfairness as to 

make the resulting conviction a denial of due process.” ’ (Darden v. 

Wainwright (1986) 477 U.S. 168, 181.)” (People v. Davis (2009) 46 Cal.4th 

539, 612.) “ ‘[B]efore a federal constitutional error can be held harmless, the 

court must be able to declare a belief that it was harmless beyond a 

reasonable doubt.’ ” (People v. Dworak (2021) 11 Cal.5th 881, 914 [regarding 

a prosecutorial misconduct claim].)

“By contrast, our state law requires reversal when a prosecutor uses 

‘deceptive or reprehensible methods to persuade either the court or the jury’

(People v. Price (1991) 1 Cal.4th 324, 447) and ‘ “it is reasonably probable that 

a result more favorable to the defendant would have been reached without 

the misconduct” ’ (People v. Wallace [(2008)] 44 Cal.4th [1032,] 1071). To 

preserve a misconduct claim for review on appeal, a defendant must make a 

timely objection and ask the trial court to admonish the jury to disregard the 

prosecutor's improper remarks or conduct, unless an admonition would not 

have cured the harm. (People v. Tafoya [(2007)] 42 Cal.4th 147, 176.)” 

(People v. Davis, supra, 46 Cal.4th at p. 612.)

3. Analysis

Dekalb contends the prosecutor engaged in misconduct by using a 

hearsay statement—her reference to 5150 records indicating that Dekalb 
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displayed a goal-oriented and coherent thought process the day before the 

incident—under the guise of impeachment, arguing in closing that Dekalb 

was not bipolar when she knew he was in fact bipolar, and shifting the 

burden to prove intent to the defense, thereby deliberately misleading the 

jury into concluding Dekalb had the intent to commit burglary when he 

entered Andrea Z.’s house. 

The parties debate various issues regarding Dekalb’s misconduct claim, 

including the People’s contentions that Dekalb forfeited the claim by failing 

to ask for an admonition below and, regarding the merits, that the prosecutor 

was merely commenting on the persuasiveness of Dr. Griffith’s testimony and 

on the state of the evidence during closing argument. 

We need not address these issues because, assuming solely for the sake 

of argument that the prosecutor engaged in misconduct and Dekalb 

preserved his claim for appeal, conclusions we do not reach here, the 

misconduct was harmless beyond a reasonable doubt for the same reasons 

that caused us to conclude that any trial court error regarding the 

prosecutor’s impeachment of Dr. Griffith was harmless. 

In addition, Dekalb gives us no reason to doubt that the trial court 

acted within its discretion when it concluded that its further instruction to 

the jury after closing argument that the prosecution alone bore the burden of 

proof cured any burden-shifting suggested by the prosecutor’s rebuttal 

remarks argument about the defense failure to show Dekalb suffered from 

bipolar disorder. (See People v. Schultz (2020) 10 Cal.5th 623, 673–674 

[“ ‘ “Whether a particular incident is incurably prejudicial is by its nature a 

speculative matter, and the trial court is vested with considerable discretion 

in ruling on mistrial motions,” ’ ” which ruling is reviewed for abuse of 

discretion].)
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III. DISPOSITION

The judgment is affirmed.

STREETER, J. 

WE CONCUR:

BROWN, P. J.

GOLDMAN, J.