APPEAL from a judgment of the Superior Court of San Diego County, Charles G. Rogers, Judge. (Super. Ct. No. SCD212359)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Raymond Higgins of burglary of an inhabited dwelling, assault with a deadly weapon or by means likely to cause great bodily injury, and assault with a firearm. Higgins's convictions stem from an incident in which Higgins broke into a neighbor's home with two guns in his possession.
On appeal, Higgins challenges his convictions on a number of grounds, including: (1) that he was not provided with sufficient notice that the prosecutor was going to rely on false imprisonment as a predicate crime for the burglary charge; (2) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on the defense of mistake of fact; (3) that the trial court committed reversible error in failing to instruct the jury, sua sponte, on a number of offenses that Higgins maintains are lesser included offenses to the charged crimes, including simple assault, misdemeanor false imprisonment, and brandishing a weapon; (4) that the prosecutor engaged in a number of instances of improper conduct, any one of which, he contends, requires reversal; and (5) that the prosecutor's pattern of improper conduct resulted in cumulative prejudice that requires reversal.
We conclude that Higgins's convictions must be reversed on the ground that the prosecutor, Deputy District Attorney Christopher M. Lawson, engaged in a pervasive pattern of misconduct that rendered the trial fundamentally unfair.
FACTUAL AND PROCEDURAL BACKGROUND
Laurie Arnold and Higgins had been neighbors for approximately 15 years. Higgins lived with his wife and daughter a few houses down from Arnold. Arnold lived with her daughter Alana, who was 19 years old, and her son Jamie, who was 15 years old. Alana and Higgins's daughter had been "very good friends" when they were younger. The relationship between Arnold and the Higgins family had been sufficiently close that Arnold had memorized the Higgins family's home telephone number.
Arnold divorced her husband approximately four years prior to the incident at issue in this case. After Arnold and her husband separated, her son Jamie went through "tough times" and started getting into trouble. Arnold had asked Higgins to keep Jamie "on course." Arnold did not know whether Jamie had been spending time with Higgins recently, but over the prior year, the only contact she had had with Higgins was exchanging casual greetings.
On May 30, 2008, at approximately 9:00 p.m., Arnold and her boyfriend, Eric Wuerfel, were upstairs in Arnold's home when the doorbell rang. Arnold and Wuerfel decided to ignore the doorbell. A short time later, the front door began "rattling" and/or "violently shak[ing]." Wuerfel went downstairs to see who was at the door. When he got to the door, no one was there.
While Wuerfel was downstairs, he heard Arnold's dog barking in the garage. Wuerfel eventually came into contact with Higgins, who was in Arnold's garage. When Wuerfel encountered Higgins, he asked Higgins who he was. Higgins replied, "I'm a neighbor. I'm a friend of Laurie's." Wuerfel introduced himself to Higgins and continued to ask Higgins to identify himself, which Higgins eventually did. Higgins said that he wanted to talk to Arnold. Wuerfel told Higgins to stay where he was while Wuerfel went to see whether Arnold wanted to talk to Higgins.
Wuerfel went to the master bedroom, which was on the second floor, and closed the door behind him. Once he was in the bedroom, Wuerfel told Arnold that "Ray" was downstairs and that he wanted to talk to her. While Wuerfel and Arnold were discussing Higgins's behavior, they heard Higgins outside the bedroom door saying, "Laurie, Eric. . . . I just want to talk to you." Arnold opened the bedroom door and saw Higgins on the stairs, talking to Arnold's dog. Higgins repeatedly said that he "just want[ed] to talk to Laurie," and mentioned something about Jamie and his friends. Higgins gave no other reason for being present in Arnold's home.
Arnold told Higgins that he was "freaking [them] out," and demanded that he leave. Arnold escorted Higgins downstairs and out of the house. Once Higgins was outside, Arnold closed the front door and locked it.
After Arnold locked the front door, she and Wuerfel locked all of the doors to the house and set the alarm. Wuerfel and Arnold then returned to the bedroom. Shortly after they returned to the bedroom, the doorbell rang. Arnold and Wuerfel believed that it was Higgins ringing the doorbell. Arnold looked out the peephole and saw Higgins standing outside the front door. Although Arnold did not see a gun, she knew that Higgins owned guns. Arnold said to Wuerfel, "I think he's got a gun." Higgins said, "Laurie, Eric, open the door. I just want to talk to you." Wuerfel told Higgins to leave, and warned him that if he did not leave, they would call the police or Higgins's wife. At this point, Higgins began to shake the door violently.
Arnold and Wuerfel ran upstairs to the master bedroom. When they reached the bedroom, Arnold called 911. While Arnold was talking to the 911 operator, the house alarm went off, and a verbal warning indicated that a door in the dining room had been opened. Arnold and Wuerfel could hear Higgins walking around the house, repeatedly saying, "Laurie, Eric, I just want to talk to you." Wuerfel pushed a couch up against the master bedroom doors, to keep Higgins out. Higgins hit the doors "really hard," pushing both Wuerfel and the couch back about a foot. Wuerfel pushed the couch back to the doors and tried to brace himself against the doors again.
Higgins continued to try to force open the doors to the master bedroom. At one point, Wuerfel saw what appeared to be the barrel of a gun poking through an opening between the two doors. Wuerfel shouted, "He's got a gun," but then said, "Maybe it's a crowbar." After getting a closer look at the object, Wuerfel could see that it was, in fact, a gun barrel. Wuerfel again shouted, "He's got a gun." In response, Higgins asked, "You're not afraid of this little thing, are you?"*fn1
At one point, Arnold handed the telephone to Wuerfel while she used her cell phone to call Higgins's wife. When Higgins's wife answered the call, Arnold said something like, "Ray's here. I think he has a gun. I think he's going to kill me. Why would he kill me?"
Much of Arnold and Wuerfel's encounter with Higgins was audible on the recording of Arnold's 911 call. Arnold told the 911 operator that she thought Higgins must be drunk, and that there was no history of violence between them. Arnold punched out a screen from her bathroom window, thinking that she might have to jump. At this point, the police arrived.
When San Diego Police Officer Thomas Kowalczyk arrived at Arnold's residence, he saw Higgins running away from Arnold's house, through an adjacent yard. Higgins appeared to be running in a straight line with no difficulty. Kowalczyk drew his firearm and ordered Higgins to get down on the ground. Higgins initially continued running, but then put up his hands and turned around. Kowalczyk again ordered Higgins to get on the ground, and told Higgins that he knew Higgins was armed. Higgins responded, "Yeah, whatever," and turned away from Kowalczyk. Because Higgins had not complied with Kowalczyk's order to get on the ground, Kowalczyk struck Higgins with the butt of his shotgun, causing Higgins to fall to the ground, on his back. Kowalczyk held Higgins at gunpoint until other police officers arrived.
After Higgins was placed under arrest, police officers found a loaded .45-caliber semiautomatic pistol and a loaded .38-caliber revolver in his right front pants pocket. In Higgins's left front pants pocket, officers found two speed loaders and five loose rounds of .38-caliber ammunition.
Higgins testified that he graduated from the Naval Academy in Annapolis, Maryland in 1977 and had twice been awarded the Navy's humanitarian medal for his conduct during the Vietnam War. In 1979, while Higgins was deployed, his younger sister committed suicide. He was not permitted to return home for her funeral.
According to Higgins, after Arnold and her husband divorced, her son Jamie became "unglued." He started using drugs and was getting into trouble for fighting. Higgins had talked with Arnold about Jamie's issues, and had tried to take Jamie "under [his] wing."
Two months before the incident at issue, Sean Canepa, the 19-year-old best friend of Higgins's daughter, died from a drug overdose. The young man had spent a great deal of time with Higgins's family, and had his own room in the Higgins home. Higgins "broke down sobbing" when he learned of Canepa's death. Higgins testified that after Canepa's death, he started drinking heavily.
On May 30, 2008, Higgins, who owned a money management business, worked in his home office until after the stock market closed. At approximately 2:00 p.m., Higgins began drinking vodka to celebrate having had a good business day, and also to celebrate his mother's birthday. As Higgins drank, he prepared his guns and range bag for a trip to the firing range that he was planning to take that weekend. Higgins said that he put the two handguns in his pocket because he intended to work on them later. According to Higgins, the two guns "were in and out of [his] pockets a couple of times in the course of the day."
Higgins drank a significant amount of alcohol over the rest of that day, including approximately half a bottle of vodka, a bottle of red wine, and part of a bottle of white wine. He later went to a nearby sushi restaurant, where he drank three or four bottles of sake.
Upon returning home, Higgins saw some of Jamie's friends standing in the street, and stopped briefly to talk with them. Higgins believed that these teenagers were "bad kids." Higgins "started thinking about Jamie [¶] . . . [and became] obsessed with going down to [Arnold's] house and talking to [Arnold] about Jamie."
The next thing that Higgins remembered was standing in a garage talking to Wuerfel. He also remembered lying on the stairs in Arnold's house, talking to Arnold's dog.
Higgins recalled that he had gone home sometime after these events. Higgins's wife was at home when he returned, but at some point, she left to go to McDonald's. After his wife left, Higgins went back to the Arnold house. He remembered going through a side gate and opening a sliding glass door which, according to Higgins, was unlocked. Higgins recalled walking through Arnold's home, calling for Arnold and Wuerfel. He did not recall hearing the house alarm go off.
The next thing that Higgins remembered was being at the top of the stairs in Arnold's home, and pushing on the bedroom doors to try to get them to open. He leaned against the doors and could hear Arnold inside the bedroom. Higgins realized that there was something in his pocket. When he removed the item, he saw that it was his .38-caliber revolver. Higgins stuck the barrel of the gun between the two bedroom doors in an effort to pry them open. When Higgins heard someone yell, "He's got a gun," he had a "moment of clarity" and thought to himself, "What am I doing here?" He immediately left Arnold's house. Higgins next remembered seeing flashing lights, and his wife handing him some shoes.
b. Dr. Kalish's Testimony
Mark Kalish, M.D., a psychiatrist, testified as an expert for the defense. Dr. Kalish testified that people who are depressed may self-medicate with alcohol. In order to evaluate Higgins's mental state, Dr. Kalish had interviewed Higgins, reviewed the police reports concerning the incident, read transcripts of prior hearings in the case, listened to the 911 audiotape, and reviewed the audiotape and videotapes of Higgins's interviews with police. Dr. Kalish diagnosed Higgins as suffering from alcoholism and a recurring depressive disorder.
Dr. Kalish discussed a number of tragic events that he believed had exacerbated Higgins's disorder, including an incident during the Vietnam War, and Higgins's sister's suicide. According to Dr. Kalish, Sean Canepa's recent death also contributed to Higgins's condition. Dr. Kalish stated that in his opinion, Higgins's conduct at the Arnold house on the night of May 30, 2008, was consistent with that of a person who was depressed and who had self-medicated with alcohol.
On November 13, 2008, the San Diego County District Attorney filed an amended information charging Higgins with burglary of an inhabited dwelling (§§ 459, 460; count 1); assault with a deadly weapon or by means likely to cause great bodily injury (§ 245, subd. (a)(1); count 2); and assault with a firearm (§ 245, subd. (a)(2); count 3). As to counts 1 and 2, the information also alleged that Higgins personally used a firearm in the commission of the charged offenses (§ 12022.5, subd. (a)).
A jury trial began on November 10, 2008. The jury began deliberating on November 18. The jury deliberated on November 19 and for most of the day on November 20, before reporting to the trial court that it was hopelessly deadlocked. The trial court declared a mistrial.
A second jury was impaneled on June 25, 2009. The second jury began deliberating on the afternoon of July 7, 2009. After deliberating all day on July 8, the second jury returned guilty verdicts on all three counts, and found true the allegations of personal use of a firearm.
The trial court sentenced Higgins to five years in state prison.
Higgins filed a timely notice of appeal.
Higgins argues that the prosecutor engaged in a pervasive pattern of misconduct throughout the trial, and that this conduct deprived him of his constitutional right to a fair trial, under both the state and federal Constitutions. Higgins asserts that these instances of misconduct, ...