Metropolitan News-Enterprise


Wednesday, February 3, 2010


Page 3


Court of Appeal Tosses Lewd Act Conviction Over Police Misconduct


By STEVEN M. ELLIS, Staff Writer


This district’s Court of Appeal reversed a Maywood man’s conviction for committing a lewd act on his 4-year-old grandniece because a police officer intentionally referred to the man’s excluded out-of-court statement on the witness stand in order to prejudice the jury.

Div. Eight said a mistrial should have been declared after Maywood Police Detective Andrew Serrata testified he could not explain why he did not test DNA swabs from the alleged assault because defendant Neftali Navarrete’s “statement is inadmissible.”

Los Angeles Superior Court Judge Patrick T. Meyers attempted to cure the error by instructing the jury to disregard the testimony. However, a colleague of the prosecutor later indicated that Serrata, while waiting to be called to testify, complained about Meyers’ order suppressing the statement and promised he “was going to show” the court.

A jury convicted Navarrete after his sister’s daughter-in-law, who lived on the same property with him and others, said she found Navarrete in his van shirtless, lying face down on top of her daughter with his shorts pulled to his knees and making “sexual-type movements.”

A medical exam showed the girl suffered no physical injury from the alleged assault, but police found her missing sandal in Navarrete’s van.

Navarrete made a statement to police when he was arrested, but Meyers suppressed it, finding that independent witnesses who said detectives—including Serrata—failed to advise Navarrete of his Miranda rights were more credible than the detectives.

After Serrata testified when trial began the following day, Los Angeles County Deputy District Attorney Robert C. Britton advised the trial court upon his return from lunch of what he learned from his colleague. Britton said the conversation was prompted when the colleague asked if Serrata had done “anything stupid on the witness stand.”

Sentenced to six years in prison, Navarrete sought a new trial, but Meyers suggested that a jury could distinguish a “statement” from a “confession,” and ruled that Serrata’s misconduct did not irreparably harm Navarrete’s defense.

The Court of Appeal, however, disagreed in an opinion by Justice Laurence D. Rubin, who noted that evidence of Navarrete’s guilt was “not overwhelming” insofar as it relied on the testimony of a single percipient witness and prior uncharged similar acts more than 20 years earlier, and because Navarrete was currently in a dispute over ownership of the property with his sister’s family.

Writing that “[a] jury’s belief that a defendant may have confessed eviscerates the presumption of innocence,” the justice said a curative instruction was insufficient.

He explained:

“A witness’s ambiguous and inadvertent reference to a defendant’s out of court statement previously excluded by the court may not always require the granting of a mistrial. Here, Detective Serrata’s testimony was neither ambiguous nor inadvertent; it was deliberate, triggered seemingly by his apparent pique at the court’s wondering the previous day about the detectives’ credibility when the court granted appellant’s motion to suppress. For that ruling, Detective Serrata admitted he was ‘going to show’ the court.

“We do not reverse because Detective Serrata’s misconduct was willful, but his willfulness reveals the effect he hoped his misconduct would have on the jury. He intended to tell the jury about appellant’s statement because he intended to prejudice the jury against appellant. On one point we agree with the detective: His misconduct more likely than not achieved the effect he sought. But for the price of his success, Detective Serrata cost the court, the parties, and the public the time and expense of a retrial.”

Justices Madeleine Flier and Tricia A. Bigelow joined Rubin in his opinion.

The case is People v. Navarrete, 10 S.O.S. 636.


Copyright 2010, Metropolitan News Company