Even if trial court erred by admitting evidence defendant committed uncharged rapes without instructing the jury he was acquitted of them, the error was not prejudicial. Poletti was charged with numerous sex offenses based on evidence that he sexually abused his stepdaughter. After his first trial, the jury acquitted Poletti of one count of forcible rape and one count of lewd acts upon a child aged 14 or 15, but convicted him of 15 other offenses. On appeal, the court reversed another forcible rape count for insufficient evidence. The court also reversed other counts of various forms of child molestation due to juror misconduct and remanded for a retrial of the remaining counts. At Poletti’s retrial, the prosecutor admitted evidence of the two forcible rapes during its case-in-chief. The trial court denied the defense’s request to instruct the jury that Poletti had been acquitted of those rapes. The jury found Poletti guilty of two counts forcible lewd acts upon a child aged 14. Poletti appealed. Held: Affirmed. In People v. Griffin (1967) 66 Cal.2d 459, the court held that evidence of an acquittal is admissible to rebut prosecution evidence of guilt of another crime. Courts have applied in this rule in cases involving the admission of uncharged sex offenses under Evidence Code section 1108. Here, the uncharged sex crimes were admitted for the limited purpose of assessing the victim’s credibility. Even assuming the court erred under Griffin, it was not prejudicial. The victim’s testimony was corroborated by videotapes Poletti made of his stepdaughter wearing lingerie and by Poletti’s own statements during a pretext phone call. Although the jury deliberated for more than three days and hung on 9 of the 11 charges, the court could not say that it was reasonably probable it would have reached an outcome more favorable to Poletti had it learned of the acquittals.
Prosecutor committed nonprejudicial misconduct by failing to disclose evidence, attempting to elicit inadmissible testimony, and exhibiting disrespect for the court. Poletti also raised four claims of prosecutorial misconduct. First, he contended that the prosecution violated Brady v. Maryland (1963) 373 U.S. 83, and Penal Code section 1054.1 by failing to disclose statements the victim made to him changing her story about when one of the alleged rapes occurred. The court found no Brady violation after concluding that the withheld evidence was no favorable to the defense. Although the failure to disclose the statement violated section 1054.1, there was no prejudice. The court also rejected Poletti’s argument that the prosecutor committed Griffin v. California (1965) 380 U.S. 609 because the prosecutor commented on the state of the evidence, not, not Poletti’s failure to testify. The court did, however, find that the prosecutor committed misconduct by repeatedly attempting to elicit testimony from a defense investigator about the time and expense associated with his investigation despite the trial court sustaining numerous objections to that line of questioning. But that misconduct was not prejudicial because the trial court sustained the objections. Finally, Poletti claimed that the prosecutor’s persistent questioning of the courts rulings in the jury’s presence was misconduct. The appellate court agreed that the prosecutor “behaved poorly and is deserving of rebuke.” However, there was no showing that the repeated expressions of disrespect for the trial court deprived Poletti of a fair trial. Although the appellate court affirmed the judgment, it found that several instances of the prosecutorial misconduct should be reported, and the court ordered a copy of the opinion forwarded to the State Bar for review and further proceedings.
