APPEAL from a judgment of the Superior Court of Los Angeles County. Patrick T. Meyers, Judge. Reversed and remanded. (Los Angeles County Super. Ct. No. VA102069).
The opinion of the court was delivered by: Rubin, Acting P. J.
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Neftali Navarrete appeals from the judgment following his conviction for committing a lewd act upon a child. Because of willful misconduct on the witness stand by a Maywood police officer, who in front of the jury intentionally violated a court order suppressing a statement by appellant, we reverse for retrial.
Appellant Neftali Navarrete lived in Maywood. His sister and her husband, Ayde and Jose M., lived on the same property, which appellant owned with a third party. Appellant lived in a house at the front of the property; his sister and her husband lived at the back in a separate house that they rented from appellant and the other owner.
On August 11, 2007, Ayde and Jose M.'s adult son, Antonio, moved into his parents' house with his wife, Alma, and his three young children. The next day, the oldest of those three children, four year old K., who was the granddaughter of Ayde and Jose M. and thus appellant's grandniece, went outside to play in the property's front yard. When K.'s mother, Alma, went outside to find K., she did not see her. Alma did, however, see appellant's van parked "across the yard" with its driver's side door wide open. Alma looked into the van's rear compartment, where she saw appellant lying face down. He was shirtless and his shorts were pulled down to his knees, exposing his buttocks. Alma did not immediately notice K. lying underneath appellant, but she saw appellant "jerking around . . . moving around" doing "something I shouldn't be seeing," which she described as "sexual-type movements." Alma then noticed K.'s curls of hair beneath appellant. Alma leapt into the van and began beating appellant. Pulling himself and his shorts up, appellant exclaimed "nothing happened." Alma then saw K.'s shorts were pulled down to her knees and she was not wearing underwear. Picking up K. and carrying her from the van, Alma noticed K. was missing a sandal. Returning with K. to their house, Alma called the police, who arrived within minutes. Police searched the van and found K.'s missing sandal. They arrested appellant and took K. to the hospital for a medical exam that established K. had suffered no physical injury.*fn1
The People charged appellant with committing a lewd act upon K. Appellant pleaded not guilty. A jury convicted him as charged. The court sentenced him to the midterm of six years. This appeal followed.
A. Detective Andrew Serrata's Willful Misconduct Before the Jury Requires a Retrial
Appellant moved pretrial to suppress a statement he made to detectives after his arrest. The trial court heard the motion over several days concurrently with jury selection and the jury's empanelment. The morning the People began their case in chief, the court granted appellant's motion to suppress because the court found the People failed to show by a preponderance of the evidence that the detectives, one of whom was Andrew Serrata, had advised appellant of his Miranda rights. Suggesting that it found the independent witnesses who testified in support of appellant's motion at least as, if not more, credible than the detectives, the court barred use of appellant's statement at trial.*fn2
The next day during the first day of testimony, the forensic nurse who examined K. hours after the assault testified. She explained she took at least 16 swabs from various parts of K.'s body seeking evidence of someone else's D.N.A. which she gave to Maywood police. The People's next witness was Detective Serrata. The detective testified he did not have the swabs tested. The prosecutor asked Detective Serrata why he decided against testing for D.N.A. The detective answered: "Well, for several reasons, the first of which it's a court rule that the defendant's statement is inadmissible. So I can't state the first reason."
Hearing the detective's reply, the court interrupted the proceedings and called counsel into chambers. The court asked the prosecutor "what do you have to say for yourself" about the detective's violation of the court's order suppressing appellant's statement to police. The prosecutor replied he had not expected the answer Detective Serrata volunteered. Defense counsel moved for mistrial based on Detective Serrata's reference to the suppressed statement, but the court denied the motion. Instead, the court struck the detective's testimony and excused him from testifying any further in the case.
The trial judge and counsel returned to the courtroom. The court informed the jury that the court had excused Detective Serrata and instructed the jury to disregard his testimony. Before moving to the next ...