Attempted Murder Verdict Undone by Prosecutorial Misdeeds

Thursday, October 30, 2025

Page 3

Court of Appeal:

Attempted Murder Verdict Undone by Prosecutorial Misdeeds

Opinion Says Los Angeles Deputy District Attorney Committed Prejudicial Misconduct by Implying to Jury That Accused Hired Lawyers to ‘Get Acquitted,’ Bringing Up Failure to Testify at Earlier Hearing; Draws Dissent

By Kimber Cooley, associate editor

Div. Eight of this district’s Court of Appeal has overturned two attempted murder convictions due to prosecutorial misconduct by a Los Angeles deputy district attorney who improperly suggested to the jury that the defendant hired lawyers to help him get away with the crime and commented on the accused’s failure to raise his defense earlier by testifying at the preliminary hearing, drawing dissent as to whether the remarks require reversal.

The question arose in a case in which the defendant, David Charles, was accused of brutally beating his wife, Tamara Charles, at the family home in Santa Clarita on Sept. 2, 2019, before leaving the house with his teenage son, driving the wrong way onto the freeway into traffic, exiting the car, and throwing his child in front of moving vehicles, causing the minor to be struck by two separate automobiles.

At issue is whether the deputy, Cathy Lee, committed misconduct under the U.S. Supreme Court opinions in Griffin v. California, decided in 1965, and Doyle v. Ohio, filed in 1976, which stand for the proposition that a prosecutor may not comment at trial on a defendant’s exercise of his right against self-incrimination or the invocation of his right to counsel as evidence of the accused’s guilt.

Prosecutorial Misconduct

Presiding Justice Maria E. Stratton authored Tuesday’s unpublished majority opinion, joined in by retired Div. Five Presiding Justice Laurence D. Rubin, sitting by assignment, finding that Lee’s remarks amounted to misconduct and saying:

“When the prosecutor’s comments invite the jury to infer guilt from silence or from retention of counsel, we must reverse and remand for a new trial unless we are convinced beyond a reasonable doubt that the jury would have returned the same verdict absent the misconduct. Given the calculated nature of the prosecutor’s improper questioning, the lack of overwhelming evidence of specific intent to kill, and the prosecutor’s direct attack on the ‘live nerve’ of the defense case, we cannot say with confidence that the verdict would have been the same absent the contaminating comments.”

Stratton also faulted Los Angeles Superior Court Judge Michael Terrell for “sidestepping…many of defendant’s objections” by instructing Lee to “move on” without making a ruling. She wrote:

“The trial court worsened the effect of the misconduct and emboldened the prosecutor by declining to rule on defendant’s many objections. By failing to rule on the objections and giving no admonishment, the trial court allowed the jurors to wonder about the prosecutor’s inferences and certainly, by its own inaction, diluted the curative and protective effect of the standard instruction to the jury to give no effect to what the attorneys say.”

Justice Victor Viramontes penned a separate opinion, agreeing that Lee’s comments amounted to misconduct but disputing that the conclusion that they were prejudicial.

Defendant’s Testimony

During a February 2023 jury trial, David Charles testified that the incident erupted after his wife turned on him with a wooden cooking utensil after threatening to stab the couple’s 13-year-old son. He claimed that he knocked her, face-first, against a wall while swinging his arms to deflect her attacks before leaving the house with the teen, mistakenly driving the wrong way on the freeway onramp.

He asserted that he carried his child onto the freeway to get away from onlookers yelling at him after a collision. During cross-examination of the defendant, Lee asked:

“So the first time that you’re telling anybody about your wife hitting you was yesterday when you were testifying in a case where you are being charged with attempted murder against your wife, correct?”

When he denied this, saying that he had earlier spoken with his attorneys about what happened, she responded:

“So you hired your attorneys to help you get acquitted of the charges that you’re charged with, correct?”

After Terrell sustained a defense objection, Lee challenged his assertion that trial was the first opportunity he had to tell his side of the story, saying:

“That’s not true. We had a preliminary hearing, correct?”

During rebuttal, Lee said that David Charles executed a “Plan C” involving “mak[ing] up a story, hir[ing] some lawyers,” and “bank[ing] on” the hope of convincing a single juror to acquit.

Tamara Charles was a reluctant prosecution witness. Medical records showed that she suffered facial fractures, causing her to require a metal plate to be inserted into her skull, and a liver laceration, among other injuries.

Intent to Kill

Stratton said that the defendant’s testimony was “critically important” to the case because the issue of whether the defendant had the intent to kill his wife and son “was far from cut and dried” due to the defendant’s lack of criminal history and Tamara Charles’ testimony that she did not remember the incident. Under those circumstances, Stratton opined:

“Because defendant’s credibility was the key to whether he was convicted of the charges, the Griffin/Doyle error, directed at defendant’s credibility, takes center stage. It was not harmless.”

She continued:

“[T]here was only one reason to comment…on the defendant’s retention of counsel after the event ‘in order to get an acquittal,’ or on his failure to tell ‘anyone’ else his version of events until the trial commenced, or on his failure to testify at the preliminary hearing. Those comments were designed to impermissibly communicate to the jury that defendant’s testimony was of recent vintage, was invented for trial, [and] therefore…should not be believed.”

The jurist added:

“To compound the legal error…is the fact that one of the responding officers, Deputy Rafael Sierra, wrote in his report that defendant had said he had struck his wife. Thus, the prosecutor pursued a line of questioning she knew to be false. When defense counsel asked for permission to call Deputy Sierra as a witness to correct any misimpressions caused by the prosecutor, the trial court refused to permit it….Instead, the trial court simply admonished the prosecutor not to mention the subject in her closing argument. The misimpression went uncorrected.”

Report to State Bar

In a footnote, the presiding justice pointed out that “we are required to report the prosecutor to the State Bar ‘[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct’ ” and declared:

“The Clerk of this court is directed to…transmit a copy of this opinion to the State Bar.”

She also declared that Terrell erred by not instructing on the lesser included offense of attempted voluntary manslaughter, saying that “[i]f a defendant attempts to kill in the unreasonable but good faith belief of having to act in defense of another, that belief negates what would otherwise be malice and the defendant is guilty of attempted voluntary manslaughter, not attempted murder.”

Stratton said:

“Having found defendant guilty of attempted murder, the jury plainly rejected defendant’s claim that he struck Tamara with an actual, reasonable belief in the need to protect his son. That does not mean however, the jury, if properly instructed, would necessarily have rejected a theory, based on the above-cited evidence, that defendant acted with an actual, but unreasonable belief that Tamara presented an imminent threat.”

Viramontes’ View

Viramontes wrote:

“I concur in the majority’s conclusion the trial court erred in failing to instruct on imperfect defense of others…and that the conviction on count 1 must be reversed.

“I also concur in the majority’s conclusion there were acts of misconduct committed by the prosecutor. However, I dissent on the question of prejudice.”

Characterizing Lee’s improper statements as “brief” and noting that Terrell did instruct the jury that questions from lawyers are not to be considered evidence, he remarked:

“I share the majority’s concern with the prosecutor’s intemperate and unprofessional behavior. I do not condone the prosecutor’s inappropriate comments and argument asserting defendant hired counsel to help him tell lies, but…I find them harmless beyond a reasonable doubt. Considering the totality of the evidentiary record, I do not find it likely a reasonable jury would have been misled by the prosecutor’s gratuitous and improper comments.”

The case is People v. Charles, B330253.