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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Kenneth Andrew WILLIAMS, Defendant and Appellant.

No. B118817.

Decided: January 21, 1999

Alexander Lambrous, Santa Barbara, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.

Kenneth Andrew Williams was convicted after a jury trial of one count of corporal injury to a cohabitant (Pen.Code,1 § 273.5, subd. (a)) and one count of making a terrorist threat.  (§ 422.)

Prior to trial Williams entered a plea of no contest and then withdrew his plea.   At trial the prosecution improperly asked questions about the no contest plea.   The trial judge instructed the jury not to consider the plea as an admission of guilt.   We reverse the judgment because there is a reasonable probability Williams would have obtained a more favorable result absent the improper questions.  (People v. Cahill (1993) 5 Cal.4th 478, 509-510, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)


Williams and Barbara B. lived together in Ventura.   On November 30, 1995, they went to a local dance club.   When they returned home in the early morning hours of December 1, 1995, they began to argue.   Williams believed Barbara had kissed another man at the dance club.

Williams pushed Barbara onto her back on the floor.   He straddled her chest and threatened to take her to Ojai and have his friends gang rape her.   He ripped her shirt and bit her lower lip, breaking the skin on the inside.   The attack lasted 15 to 20 minutes, after which Barbara fell asleep.   After she awoke, she went to work.

Later that day, Williams wanted to drive with Barbara to Granada Hills to pick up her son at her ex-husband's home.   Barbara agreed because Williams was persistent and had her daughter with him.   Barbara's daughter and Williams' son went along on the trip.

During the drive Williams and Barbara began arguing.   Barbara said that due to the incident that morning she would have to reconsider their relationship.   Williams became angry.   He told Barbara he would take her off the freeway and kill her.   He left the freeway and began driving on a side street.   Barbara believed that Williams would kill her and attempted to leave the van.   She got her legs outside the passenger door when Williams grabbed her hair and pulled her back.   He slammed her face against the passenger window and the dashboard and hit her in the nose.   He put his fingers in her mouth and pulled her head down between the seats.   She was bleeding from her nose and mouth.   She received a black eye, an injury to her left temple and there was an area on her head from which the hair was missing.

 The attack lasted 10 to 15 minutes.   Williams stopped when Barbara's daughter began pounding on Williams' shoulder.   A resident of the area saw the van and heard children screaming inside.   She called 911.

Williams, Barbara and the children continued on their way to pick up Barbara's son.   When they returned to Ventura, Barbara attempted to leave their home but Williams prevented her.   Barbara called her mother and told her Williams had given her a black eye and a bloody nose.   Later a police officer arrived at her home.   Williams left by the back window.

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Williams testified and said he and Barbara began dating on August 1, 1995, and he moved in with her two months later.   They argued but did not have a physical confrontation until December 1, 1995.

Early that morning Williams and Barbara were arguing about the kiss.   They smoked some marijuana and argued some more.   They began to wrestle but not in anger.   Wrestling was something they did all the time.   While they were on the floor they had sex.   During sex he nibbled on her lip.   Williams denied he threatened her.

Later that evening as they were driving to Granada Hills they got into an argument over Barbara's plans for Christmas visitation with her son.   He pulled off the freeway because things were becoming too chaotic in the van.

After he pulled off the freeway, Barbara began screaming to her daughter that Williams was going to kill her.   She hit him on the side of the head and began kicking at him.   The door came open and she tried to get out.   They were traveling at approximately 25 miles an hour.   He reached over and pulled her in.   He did not know where he grabbed her.

Back inside the van she resumed hitting and kicking him.   He pushed her away.   He did not intentionally push her face into the dashboard.   He was driving when he pushed her.   He did not know what happened.

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Barbara's sister testified that Barbara's behavior at times was explosive.   She has seen Barbara engage in physical violence.   She described an incident in which Barbara came to her house with a male friend.   Barbara and the friend had been arguing.   Barbara jumped out of a chair and began choking her friend.   Barbara's friend had not struck Barbara.   Barbara's sister also recalled seeing a cut on the back of the friend's head after an incident at her grandmother's house.

Barbara's ex-husband testified that Barbara hit and kicked him on two occasions during their marriage.



 Williams contends the trial court erred in admitting evidence that he had pled guilty or no contest.

Williams called probation officer, Diane Hubbard.   Hubbard testified she interviewed Barbara.   Barbara told her she had not seen Williams since December 1, 1995.   At trial Barbara admitted she had seen Williams on a number of occasions after that date.

The following occurred during the prosecutor's cross-examination of Hubbard:  “[PROSECUTOR]:  Miss Hubbard, you spoke with [Barbara] on October 21st, 1996.   Why were you speaking with her?  [¶] [DEFENSE COUNSEL]:  Objection, relevance.  [¶] [THE COURT]:  Overruled.  [¶] [THE WITNESS]:  Mr. Williams had been referred to the Probation Department following a conviction of a battery against the victim, and I was preparing a probation report instructed by the Court, and in the course of my investigation I contacted the victim to get a statement from her.  [¶] [PROSECUTOR]:  And this was regarding an incident from December 1st, 1995, correct?  [¶] [THE WITNESS]:  Yes. [¶] [THE PROSECUTOR]:  And you said that the defendant had been convicted.   Hadn't he in fact pled guilty to the charge?  [¶] [THE WITNESS]:  Correct, he had pled guilty.  [¶] [THE PROSECUTOR]:  Do you know if he ever changed that plea after your report?  [¶] [THE WITNESS]:  Yes. [¶] [THE PROSECUTOR]:  Do you know how long after your report he changed his plea?  [¶] [THE WITNESS]:  Um, I'm going to say two to three months, perhaps.  [¶] [THE PROSECUTOR]:  And you were preparing a report which included a sentencing recommendation for the defendant, correct?  [¶] [THE WITNESS]:  Yes.”

The prosecutor raised the matter again on cross-examination of Williams:  “[THE PROSECUTOR]:  Finally, I want to raise the issue with you.   Your attorney clarified that in fact you had not pled guilty in this case approximately a year ago.   You had pled no contest, correct?  [¶] [WILLIAMS]:  Yes․  [¶] [THE PROSECUTOR]:  Isn't it true that you had been informed by both your attorney and the judge that a no contest plea would result in a finding of guilt and a conviction in a criminal case, and that the only difference between a no contest plea and a guilty plea would be if there were later a civil suit?”   The trial court sustained defense counsel's relevance objection.

Two court days after Hubbard's testimony, the prosecutor requested and the trial court gave the following limiting instruction:  “[THE COURT]:  During the testimony of Diane Hubbard and then again through the testimony of the defendant, you heard evidence that over one year ago the defendant pled no contest in regard to this case and that he later withdrew his plea.  [¶] The evidence was received for the limited purpose of explaining why Miss Hubbard was preparing a report and interviewing Barbara [ ]. [¶] It should not be considered by you for any other purpose, and I now admonish you that you may not consider [it] for any other purpose except for the purpose which I just indicated it was received.”

The Attorney General concedes, as he must, that evidence of Williams' withdrawn plea was inadmissible.  (§ 1192.4;  Evid.Code, § 1153.)   The Attorney General argues, however, that Williams waived the issue by failing to raise the proper ground for objection.   Williams objected to the questions as irrelevant.

 If, in fact, the evidence was offered to explain why Barbara was being interviewed, it had no relevance.   The defense's point on direct examination was to show that Barbara had lied to Hubbard about not having seen Williams after December 1, 1995.   Why Barbara was being interviewed had nothing to do with it.   That Williams had pled guilty or no contest had even less to do with it.   A proper objection was raised.   The only question is whether the error was harmless.

 Williams likens evidence of a guilty plea to evidence of a confession.   In People v. Cahill, supra, 5 Cal.4th 478, 503, 20 Cal.Rptr.2d 582, 853 P.2d 1037, our Supreme Court recognized that “ ‘the confession operates as a kind of evidentiary bombshell which shatters the defense.’ ”   Thus it is more likely than other kinds of evidence to be prejudicial.   Nevertheless, where as here no federal constitutional question arises, the Watson test is appropriate for measuring prejudice.  (Id., at pp. 509-510, 20 Cal.Rptr.2d 582, 853 P.2d 1037.)   Under that test the burden is on Williams to show it is reasonably probable he would have obtained a better result in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

Here there was evidence that both Williams and Barbara had a propensity toward unprovoked violence.   Although Barbara's daughter supported Barbara's version of the events, the daughter's young age and her bias may well have led the jury to discount her testimony.   The trial was essentially a credibility battle between Williams and Barbara.   Evidence that Williams had pled guilty or no contest to the charges had the effect of disarming Williams in the middle of the battle.

 Generally the jury is presumed to follow the trial court's instructions.  (People v. Ryan (1981) 116 Cal.App.3d 168, 179, 171 Cal.Rptr. 854.)   This rule is not absolute.   Here the jury was instructed not to take Williams' plea for what it was:  an admission of guilt.   It would be extremely difficult for the jury to disregard Williams' judicial confession that he had battered Barbara.

There is a reasonable probability Williams would have obtained a more favorable result in the absence of the error.

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The judgment is reversed.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.  FN†<> See footnote *, ante.

GILBERT, Acting P.J.

STONE, J.††, YEGAN, J., concur.