ZULMA UNZUETA, Plaintiff and Appellant, v. ASMIK AKOPYAN, Defendant and Respondent.
B284305
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
11/18/19
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. BC495137)
McMurray Henriks and Yana G. Henriks for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson, Zena Jacobsen; Packer, O’Leary & Corson, Robert B. Packer and Paul M. Corson for Defendant and Respondent.
We conditionally reverse for the limited purpose of conducting the second and third steps of the Batson/Wheeler inquiry as to all six challenged Hispanic jurors. The prohibition against the exercise of peremptory challenges to exclude prospective jurors on the basis of race or other group bias applies to civil as well as criminal cases. We credit the trial court for raising a Batson/Wheeler challenge on its own motion. But once the court found a prima facie showing of racial bias as to all six Hispanic prospective jurors, it was required to elicit from Dr. Akopyan’s attorney justifications for each of the six prospective jurors, including the four prospective jurors excused the prior day and the two excusals that immediately precipitated the court’s sua sponte motion. On remand the court should
Unzueta also contends the trial court erred in excluding evidence of Dr. Akopyan’s dishonesty in representations she made to obtain her medical license and denying Unzueta’s motion to exclude testimony from Dr. Akopyan’s expert for failure to designate the witness as an expert. Further, Unzueta asserts defense counsel’s closing argument was improper. As to these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
On November 6, 2012 Unzueta filed her complaint against Dr. Akopyan, Adventist Health White Memorial Medical Center (White Memorial), and 50 Doe defendants alleging medical malpractice in the delivery of her first child. Unzueta alleged Dr. Akopyan’s negligent administration of an epidural injection resulted in “paralysis of her right leg from the knee down.”
On August 5, 2014 White Memorial served its designation of expert witnesses on Unzueta. White Memorial designated Mark Zakowski, M.D., and stated, “The general substance of the testimony that this expert witness is expected to give: standard of care, causation and damages.”
On March 12, 2015 White Memorial served its second designation of expert witnesses on Unzueta, in which it again designated Dr. Zakowski to testify on the “standard of care, causation and damages.” Dr. Akopyan did not include Dr. Zakowski in her expert witness designations. However, Dr. Akopyan reserved “the right to call any expert witness identified by any other party.” On July 2, 2015 Unzueta deposed Dr. Zakowski.
Before trial, White Memorial settled with Unzueta and withdrew its designation of Dr. Zakowski. On February 3, 2017 Unzueta filed a motion in limine (No. 3) to exclude Dr. Zakowski’s testimony at trial on the basis Dr. Akopyan had failed to designate him as her expert witness. Unzueta also argued Zakowski’s testimony was cumulative of the testimony of Dr. Akopyan’s designated anesthesiology expert, Dr. Kevin Becker. Dr. Akopyan opposed the motion, arguing she could properly rely on the expert designation by codefendant White Memorial because Unzueta deposed Dr. Zakowski on July 2, 2015. The trial court denied the motion to exclude Dr. Zakowski without prejudice.2
At a hearing on March 1, 2017 during trial, the court clarified it had granted motion in limine No. 4, precluding Dr. Zakowski from testifying about standard of care, but allowing him to testify about causation.
C. Unzueta’s Offer of Proof Regarding Dr. Akopyan’s Criminal Record and Medical License Applications
On February 8, 2017 Unzueta filed a written “offer of proof,” seeking to admit evidence Dr. Akopyan was convicted in 1992 of theft (
After a hearing, the trial court excluded all evidence of Dr. Akopyan’s criminal record and medical license applications. The trial court found, “[T]here’s no question she failed to disclose a misdemeanor conviction from 1992. [¶] That is extremely remote to the point where I think
D. Testimony at Trial
1. Unzueta’s case
On August 26, 2011 White Memorial admitted Unzueta for the delivery of her baby. Unzueta testified she was in great pain when she arrived at the hospital to give birth. Dr. Akopyan
During the final stage of the delivery, the nurses, the baby’s father, and the baby’s paternal grandmother held Unzueta’s legs. Unzueta gave birth to a healthy baby. After the birth, Unzueta was numb in both of her legs. Her left leg regained feeling, but her right leg did not. Unzueta never regained full use of her right foot.
Unzueta presented expert testimony from Drs. Karl Norris, Hyman Gross, and Sherman Shlomo Elspas that Dr. Akopyan’s conduct fell below the standard of care and caused Unzueta’s injury either by the administration of epinephrine in the epidural injection or by the epidural needle damaging the nerve root through direct contact.3
Dr. Akopyan testified as to her procedure for administering epidural injections. She acknowledged the first epidural injection she administered to Unzueta was not effective, but explained, “It’s a common practice to replace epidurals.” Dr. Akopyan opined she could not have damaged the nerve responsible for Unzueta’s injury because the damaged nerve was in Unzueta’s leg above the knee, whereas the epidural needle was placed in her back. Dr. Akopyan also testified that damage to the nerve in the leg was a “very common complication” for a person who gives birth in the position Unzueta was in.
Dr. Becker, an anesthesiologist, opined Dr. Akopyan’s treatment of Unzueta met the standard of care and did not cause Unzueta’s injury. He testified anesthesiologists commonly need to administer a second epidural when the first proves unsatisfactory, which is not a sign of medical negligence. Dr. Becker found from his review of Dr. Akopyan’s records that she recorded inaccurate blood pressure readings, but the errors did not contribute to Unzueta’s injury. He opined the epidural injection administered to Unzueta’s back was too far from the damaged nerve in Unzueta’s leg to have caused the injury. Further, there was no evidence Dr. Akopyan struck a nerve during the administration of either epidural injection.
Dr. Zakowski, an obstetric anesthesiologist, opined it was reasonably medically probable Unzueta’s injury was caused by the force of labor or external compression by the positioning of her legs during the labor and delivery. Further, there was “zero” probability Unzueta’s injury was caused by epinephrine contained in a test dose for the epidural placement, and there was “no way physically” for an epidural needle in the lower part of Unzueta’s back directly to strike the nerve root located above
E. Closing Arguments
During closing arguments, Dr. Akopyan’s attorney, Robert Packer, argued Unzueta had failed to prove Dr. Akopyan’s care caused Unzueta’s injury, arguing it “was the result of a rare but well-described phenomenon of nerve compression, both external and internal, from forces of labor.”
Packer continued, “Now, we discussed at length, I believe during our jury selection, opening statements, that in California and the United States, our system of what we call civil justice, as opposed to criminal justice, we don’t impose liability. We don’t take Dr. Akopyan’s purse and give it to Ms. Unzueta . . . .” As he spoke, Packer motioned with his hands as if to move an object from one place to another. Unzueta’s attorney, Yana Henriks, made an objection, which the court overruled. Packer continued, “without a proof of fault. We are a fault-based system.” Packer went on, “In a civil case for money damages, based upon negligence, professional or otherwise, the plaintiff has to prove that the defendant was at fault, just as a plaintiff who might sue you or you might sue somebody some day in the future has that burden of proof.”
With respect to economic damages, Packer argued, “[T]here’s no evidence of income loss in this—in the past or reasonably certain to occur in the future.” Packer asserted Unzueta’s injury did not prevent her from being employed, but “[i]nstead she would like to be supported the rest of her life by Dr. Akopyan at an enormous amount of money. I think the figure was $875,000.” Henriks did not object. Packer continued, “From
F. Verdict
The jury returned a special verdict for Dr. Akopyan, finding Dr. Akopyan was “negligent in the care and treatment” of Unzueta, but Dr. Akopyan’s negligence was not “a substantial factor in causing harm” to Unzueta.
On April 13, 2017 the trial court entered judgment in favor of Dr. Akopyan.
G. Unzueta’s Motion for New Trial
Unzueta moved for a new trial based on the trial court’s exclusion of evidence of Dr. Akopyan’s conviction and misrepresentations to the Medical Board; denial of Unzueta’s motion to exclude the testimony of Dr. Zakowski; and Packer’s asserted misconduct during closing arguments by referencing Dr. Akopyan’s “purse” and stating Unzueta wanted Dr. Akopyan to support her for “the rest of her life.” Unzueta also raised issues related to Batson/Wheeler, discussed below. After a hearing, the trial court denied the motion. Unzueta timely appealed.
A. The Trial Court Erred by Failing To Require Defense Counsel To Justify Excusal of the First Four Hispanic Prospective Jurors
1. The challenged jurors
Jury selection began on February 6, 2017. The next day Dr. Akopyan’s attorney, Packer, exercised four peremptory challenges to excuse prospective jurors R. Medina, J. Quintero, G. Henriquez, and R. Villarreal.
Medina was a civil engineering student, unmarried, without children, with no prior jury experience. She had “indifferent” medical experiences and no experience with childbirth or epidural treatment for pain.
Quintero was a sanitation worker for the City of Los Angeles, was married with four adult children, and was raising one grandchild. He had served on four criminal and one civil juries, all of which reached verdicts. One of his children did not work because of a disability.
Henriquez was a child specialist, married, with no prior jury experience. Her husband was disabled and did not work. Henriquez had a pending workers’ compensation case for an injury sustained in a workplace fall. She stated she would be able to distinguish between the standard of negligence at issue in Unzueta’s case and the no-fault standard for workers’ compensation.
Villareal was a children’s social worker who supervised investigative teams responding to reports of child abuse. She had two adult children and no prior jury experience. As a supervisor, Villareal was responsible for deciding based on the social workers’ investigations whether to file a petition in juvenile court
Unzueta exercised all six of her peremptory challenges; Dr. Akopyan accepted the panel without exercising her final two peremptory challenges. On February 7, 2017 the jury panel was sworn.
On February 8 voir dire continued for the selection of the alternate jurors. Packer exercised three peremptory challenges to excuse prospective jurors D. Winfrey,4 D. Zaldana, and A. Marquez.
Zaldana was a broadcast engineer, married, with three adult children. He had experience on one civil jury, which reached a verdict. A relative of Zaldana received heart surgery at one of the hospital’s other locations, but “had items left in him” as a result of the surgery. Zaldana explained, “I have a doubt about medical practices,” but promised to “be as objective as I can be.” Zaldana’s father had developed symptoms of Parkinson’s disease about two months after having an angiogram performed. Zaldana questioned whether the symptoms were brought on by the angiogram test. Zaldana believed medical complications could “arise in any circumstances” without “necessarily [being] the doctor’s fault,” although it may be “the doctor’s responsibility.”
Marquez was single and a sales associate at a hardware store, with no prior jury experience. He had previously broken an ankle, which was a painful injury and disrupted his daily living
After Packer exercised peremptory challenges to excuse Winfrey, Zaldana, and Marquez, the trial court requested all jurors and prospective alternate jurors leave the courtroom so the court could speak with the attorneys.
2. The trial court’s Batson/Wheeler motion and ruling
Outside of the presence of the jury, the trial court stated, “Mr. Packer, the only peremptories you exercised yesterday were against Hispanic jurors. Today you have exercised peremptories against two Hispanic jurors. [¶] I find a prima facie case that you have violated the Wheeler/Batson rulings, and you are going to have to justify your peremptories right now.” The court continued, “I’m surprised the plaintiffs haven’t made a Wheeler/Batson challenge, but I would have from what I’ve seen.”
Packer responded as to Marquez, “[T]his is what’s in my notes.” The trial court noted, “For the record, it looks like just about five lines. [¶] . . . [¶] . . . With just a couple of words on each line . . . .” Packer described his reasons for challenging Marquez: “He’s single. He has no jury experience. I didn’t know anything about him. Either I didn’t get to him closely enough or the plaintiff didn’t ask any questions, but he appeared to me to be disinterested in the case. He didn’t volunteer anything during the course of questioning of the other jurors, many of whom had a lot of things to say about medicine and about chronic pain, about the things I asked about, the facts that we talked about. I felt that he, at this point, was completely unknown to me compared to the other jurors. That’s why I excused him.”
The trial court responded, “Very well.” Unzueta’s attorney, Henriks, interjected, “Your Honor, we did notice yesterday that
Packer reminded the court the panel as constituted included at least three Hispanic jurors. The court responded that “[o]ne juror improperly challenged justifies the Wheeler/Batson motion.” However, the court reiterated, “That’s yesterday’s news. I’m not dealing with it now. Plaintiff, for whatever reason, failed to raise it. But today, based on what happened yesterday and today, that’s why I raised it on my own motion.”
The trial court did not ask Packer to explain his use of a peremptory strike to excuse Zaldana, and Packer did not provide an explanation. The court denied the Batson/Wheeler motion, finding Packer had justified his use of peremptory challenges as to the alternates.
3. Unzueta’s motion for new trial
On June 5, 2017 Unzueta moved for a new trial, arguing, among other things, the trial court failed to require Packer to justify the four peremptory challenges he exercised as to the Hispanic jurors on February 7. Unzueta also asserted the court erred by failing to elicit an explanation from Packer for his removal of Zaldana on February 8.
As reflected in its July 10, 2017 minute order, the trial court denied Unzueta’s motion for a new trial. With respect to Dr. Akopyan’s late-proffered explanation for striking Zaldana, the court reasoned, “[I]f a post-trial evaluation is permissible on remand following an appeal, it should be permissible at a hearing on a motion for a new trial, which occurs much more closely in time to the complained-of event.” The court explained, “[I]n light of the hearing on [Unzueta’s] new trial motion, the court is satisfied that no Wheeler/Batson violation occurred. During the hearing which this court initiated, [d]efense counsel pointed to several portions of the reporter’s transcript as reasons for exercising a peremptory challenge against [Z]aldana. The [c]ourt is more than satisfied that those reasons are not pretextual.” With respect to prospective jurors Medina, Quintero, Henriquez, and Villareal, the trial court found Unzueta had not made “a motion at any time,” and “[t]he language on which [Unzueta] relies in the transcript does not rise to the level of a motion.” The
4. Applicable law
Unzueta, who is Hispanic,5 contends Dr. Akopyan’s exercise of six of her seven peremptory challenges to excuse Hispanic prospective jurors was based on race and deprived Unzueta of her federal constitutional right to equal protection (Batson, supra, 476 U.S. at p. 88) and state constitutional right to a trial by a jury drawn from a representative cross-section of the community (Wheeler, supra, 22 Cal.3d at pp. 276-277). Specifically, Unzueta argues the trial court erred in failing to evaluate whether Dr. Akopyan exercised her peremptory challenges as to the first four Hispanic prospective jurors based on their race.
“‘[A] party may exercise a peremptory challenge for any permissible reason or no reason at all’ [citation] but ‘exercising
The prohibition against the exercise of peremptory challenges to exclude prospective jurors on the basis of race or other group bias applies to civil as well as criminal cases. (Di Donato v. Santini (1991) 232 Cal.App.3d 721, 731 [“a party to a civil lawsuit may not use peremptory challenges to exclude women from the jury panel on the basis of their gender“]; accord, Holley v. J & S Sweeping Co. (1983) 143 Cal.App.3d 588, 592 [concluding as to Batson/Wheeler motion, “[w]e are persuaded that substantially similar constitutional concerns compel a uniform application to civil jury trials“].)
“‘Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge.’” (Smith, supra, 4 Cal.5th at p. 1147; Winbush, supra, 2 Cal.5th at p. 433 [“‘[I]f the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.’“].) “[T]he prosecutor ‘must provide a “‘clear and reasonably specific’ explanation of his [or her] ‘legitimate reasons’ for exercising the challenges.” [Citation.] “The justification need not support a challenge for cause, and even a ‘trivial’ reason, if genuine and neutral, will suffice.” [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.’” (Winbush, at p. 434; accord, Hardy,
We independently review the legal question whether the trial court was required to elicit justifications for the first four jurors Packer excused. (People v. Parker (2017) 2 Cal.5th 1184, 1211 [“‘[W]e review the record independently to “apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror” on a prohibited discriminatory basis.’“]; People v. Harris (2013) 57 Cal.4th 804, 834 [“Regardless of which standard the trial court used, we independently review the record and apply the standard required by the high court.“]; People v. Edwards (2013) 57 Cal.4th 658, 698 [“[W]e independently review the record and determine whether it ‘supports an inference that the prosecutor excused a juror on the basis of race.’“].)
5. Unzueta did not forfeit her Batson/Wheeler argument
Dr. Akopyan contends Unzueta forfeited her Batson/Wheeler argument by failing timely to raise an objection to the first four peremptory challenges, and, when she did object, by failing to identify the four jurors, make a prima facie showing, and request the jury panel be discharged. Unzueta argues she joined in the trial court’s sua sponte motion by asserting
As the trial court observed, six of the seven peremptory challenges Packer made were to Hispanic prospective jurors. The court specifically identified all six jurors in finding a prima facie case of discrimination, stating, “[T]he only peremptories [Packer] exercised yesterday were against Hispanic jurors. Today you have exercised peremptories against two Hispanic jurors.” Henriks’s response—that “yesterday . . . some very good jurors that . . . could have been very fair were challenged,” and “all of [the defense’s] challenges” were made “because they’re Hispanic“—sufficiently identified the challenges she contended were discriminatory (those made “yesterday“), as well as the alleged discriminatory intent (challenges made “because they’re Hispanic“).
Although Henriks’s articulation of Unzueta’s Batson/Wheeler challenge was not a model of clarity, in contrast to the authorities cited by Dr. Akopyan, Henriks’s colloquy with the trial court left no ambiguity as to which peremptory challenges she identified as racially discriminatory and on what basis. (Cf. People v. Cunningham (2015) 61 Cal.4th 609, 662 [defendant’s objection “‘Batson again’” was not sufficient to raise Batson/Wheeler challenge where record did not reflect “what cognizable class defendant was asserting as the basis” for his motion]; People v. Booker (2011) 51 Cal.4th 141, 161-167 [defendant who objected to excusal of four Black prospective jurors under Batson/Wheeler on grounds of racial discrimination forfeited argument dismissals were due to impermissible religious discrimination]; People v. Lewis (2008) 43 Cal.4th 415, 481 [defendant who challenged excusal of five Black prospective
Further, “neither forfeiture nor application of the forfeiture rule is automatic.” (People v. McCullough (2013) 56 Cal.4th 589, 593 [finding defendant forfeited challenge to imposition of booking fee because failure to raise his ability to pay the fee in the trial court did not raise purely legal issues]; accord, In re S.B. (2004) 32 Cal.4th 1287, 1293 [“application of the forfeiture rule is not automatic,” although “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue”].) As the Supreme Court explained in S.B., the purpose of the forfeiture rule “is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.” (S.B., at p. 1293.) Here, Unzueta identified the peremptory challenges against the first four Hispanic prospective jurors as racially discriminatory, and the trial court addressed Unzueta’s contention by finding her objection was untimely, describing the challenges as “water . . .
6. The trial court’s Batson/Wheeler motion during selection of the alternate jurors was timely as to prospective jurors excused during selection of the jury panel
Dr. Akopyan alternatively argues any attempt by Unzueta to join the trial court’s motion was untimely as to the peremptory challenges exercised the prior day because Unzueta did not raise her objection “at the earliest opportunity during the voir dire process.” Unzueta contends her objection was timely because Packer’s pattern of systematic exclusion of Hispanic jurors was not fully manifested on February 7. We agree with Unzueta.
“A Batson/Wheeler motion is timely if it is made before jury impanelment is completed, which does not occur ‘“until the alternates are selected and sworn.”’” (People v. Scott (2015) 61 Cal.4th 363, 383; accord, People v. McDermott (2002) 28 Cal.4th 946, 970 [“[T]he defense motion was timely because it was made before the alternate jurors were selected and sworn.”].) As the Supreme Court has recognized, “discriminatory motive may become sufficiently apparent to establish a prima facie case only during the selection of alternate jurors, and a motion promptly made before the alternates are sworn, and before any remaining unselected prospective jurors are dismissed, is timely not only as to the prospective jurors challenged during the selection of the alternate jurors but also as to those dismissed during selection of the 12 jurors already sworn.” (McDermott, at p. 969; see People v. Gore (1993) 18 Cal.App.4th 692, 705 [“[T]he
While there may have been sufficient evidence to support a prima facie finding of group bias by the time Packer excused the fourth Hispanic juror on February 7, the showing of discriminatory bias was strengthened by Packer’s request to excuse two additional Hispanic prospective jurors the following day. The trial court’s motion, raised during the selection of alternate jurors and joined by Unzueta, was timely as to the prospective jurors Packer excused from the panel the day before.
7. The trial court erred by failing to question defense counsel regarding his peremptory challenges to the first four Hispanic prospective jurors
Dr. Akopyan argues the four Hispanic prospective jurors challenged on February 7 were not within the scope of the court’s sua sponte motion, so the trial court did not err by failing to elicit explanations for why they were excused. But the trial court’s motion identified both the four Hispanic prospective jurors who were excused on February 7 and the two who were excused on February 8. The court added its motion was “based on what happened yesterday and today.”
Contrary to Dr. Akopyan’s assertion, the Supreme Court’s holding in Avila, supra, 38 Cal.4th 491, which addressed the
On appeal, the defendant argued the trial court erred in failing to require the prosecutor to state his reasons for excusing the first Black prospective juror after it found a prima facie case based on excusal of the second prospective Black juror. (Avila, supra, 38 Cal.4th at p. 548.) The Supreme Court rejected this contention, explaining the trial court had “no sua sponte duty to revisit earlier Batson/Wheeler challenges that it had previously denied,” although it had discretion to do so upon request when a subsequent challenge “casts the prosecutor’s earlier challenges of the jurors of that same protected class in a new light, such that it gives rise to a prima facie showing of group bias as to those earlier jurors.” (Id. at p. 552; accord, Armstrong, supra, 6 Cal.5th at p. 767 [“Trial courts are no longer obligated to revisit their rulings on earlier Wheeler/Batson motions when they conclude the defendant has made out a prima facie case in connection with a later motion.”].) The Avila court concluded, “[I]f a trial court finds a prima facie showing of group bias at a later point in voir dire, the court need only ask the prosecutor to explain ‘each suspect excusal.’ [Citation.] Each suspect excusal includes the excusals to which the [moving party] is objecting and which the court has not yet reviewed.” (Avila, at p. 551.)
8. Conditional reversal and limited remand are appropriate
Unzueta contends we should remand for a new trial because given the passage of time Dr. Akopyan’s attorney will not be able to recall the reasons for excusing the prospective jurors or the appearance and demeanor of the jurors, and the trial court will not have sufficient information on which to conduct a complete Batson/Wheeler inquiry. But it is for the trial court to determine in the first instance whether it can conduct a complete Batson/Wheeler analysis.
The Supreme Court’s decision in People v. Johnson (2006) 38 Cal.4th 1096 (Johnson) is directly on point. There, after the United States Supreme Court held the trial court erred in finding
In this case, although jury selection took place almost three years ago, as in Johnson, there is a transcript of the jury selection proceeding that will assist the trial court and parties in conducting a further Batson/Wheeler analysis. In addition, the parties’ attorneys may still have their notes from the trial, which Packer referenced during his discussion of the reasons he challenged Marquez. On remand the trial court should require defense counsel to provide Packer’s reasons for challenging the first four prospective jurors (Medina, Quintero, Henriquez, and Villarreal),8 evaluate the explanations, “and decide whether
B. The Trial Court Did Not Err in Allowing Dr. Zakowski To Testify as an Expert Witness
Unzueta contends the trial court erred by allowing Dr. Zakowski to testify even though Dr. Akopyan did not designate him as an expert witness prior to trial pursuant to
Generally, upon a proper objection, “the trial court ‘shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed,’ inter alia, to designate that expert in its expert witness list.” (Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 546; accord, Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 641 [“The general rule, set forth in
Dr. Zakowski was designated by White Memorial and was later deposed by Unzueta. Without citation to the record, Unzueta asserts Dr. Akopyan “elicited expert opinions from [Dr.] Zakowski on subjects not disclosed during his deposition.” But Dr. Zakowski testified at trial only as to the cause of Unzueta’s injury, a subject on which White Memorial expressly designated Dr. Zakowski as an expert. Moreover, White Memorial’s attorney
C. The Trial Court’s Exclusion of Dr. Akopyan’s Criminal Record and Medical License Applications Was Harmless
Unzueta contends the trial court erred by excluding evidence of Dr. Akopyan’s 1992 conviction for theft and her applications and renewals to the Medical Board for her medical license, which Unzueta argued showed Dr. Akopyan failed to report her 1992 theft conviction to the Medical Board.11 The trial court ruled that under
“The law provides that any criminal act or other misconduct involving moral turpitude suggests a willingness to lie and is not necessarily irrelevant or inadmissible for impeachment purposes. [Citations.] However, to the extent such misconduct amounts to a misdemeanor or is not criminal in nature, it carries less weight in proving lax moral character and dishonesty than does either an act or conviction involving a felony. [Citations.] Hence, trial courts have broad discretion to exclude impeachment evidence other than felony convictions where such evidence might involve undue time, confusion, or prejudice.” (People v. Contreras (2013) 58 Cal.4th 123, 157, fn. 24; accord, People v. Doolin, supra, 45 Cal.4th at p. 443 [Under
However, it is a closer call whether Dr. Akopyan’s deception in the procurement of her medical license, even over a decade earlier, should have been admitted to impeach her credibility and competence to provide a medical opinion at trial.12
It is not reasonably probable the jury would have returned a verdict for Unzueta on the issue of causation if the impeachment evidence had been admitted. Despite Dr. Akopyan’s testimony her conduct met the standard of care, the jury found her not credible, concluding she provided negligent care. Further, the proposed impeachment evidence would not have negated the expert testimony of Drs. Becker and Zakowski that it was not reasonably medically probable Dr. Akopyan’s conduct caused Unzueta’s injury. Both doctors testified the site
D. Defense Counsel’s Statements During Closing Argument Do Not Require Reversal
Unzueta argues Packer falsely suggested during his closing argument Dr. Akopyan was not insured, and Packer improperly appealed to the jury’s sympathies based on the hardship Dr. Akopyan would suffer from a verdict for Unzueta. We conclude Packer’s statement and gesture regarding “tak[ing] Dr. Akopyan’s purse and giv[ing] it to Ms. Unzueta” was not improper, and Unzueta forfeited her argument as to Packer’s statement Unzueta “would like to be supported the rest of her life by Dr. Akopyan” by failing timely to object and request a curative instruction.
Unzueta’s reliance on Hoffman v. Brandt (1966) 65 Cal.2d 549 and Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174 is misplaced. Hoffman involved defense counsel’s statement during
Here, by contrast, Packer did not state (or suggest) an award of damages would cause financial hardship to Dr. Akopyan, nor did Packer imply Dr. Akopyan was not insured. Rather, Packer’s statement and gesture regarding Dr. Akopyan giving Unzueta her purse were made in the context of Packer’s argument that liability requires proof of fault.
Unzueta has forfeited her argument of misconduct with respect to Packer’s statement Unzueta “would like to be supported the rest of her life by Dr. Akopyan,” because Unzueta’s attorney failed to object during trial. “‘[T]o preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial and the party must also
Henriks did not object to Packer’s statement or request a curative instruction. Henriks’s later objection to Packer’s reference to Unzueta’s reliance on Medi-Cal did not raise a concern about Packer’s prior statement.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the trial court to conduct a complete second and third stage Batson/Wheeler analysis. On remand, the trial court is to elicit defense counsel’s justifications for the peremptory challenges to prospective jurors Medina, Quintero, Henriquez, and Villarreal, then make a sincere and reasoned evaluation of those explanations. If the court finds, because of the passage of time or other reason, it is unable to conduct the evaluation, or if any of the challenges to the six Hispanic prospective jurors were based on racial bias, the court should set the case for a new trial. If the court finds defense counsel’s race-neutral explanations are credible and he exercised the six peremptory challenges in a permissible fashion, the court should reinstate the judgment. In
FEUER, J.
WE CONCUR:
ZELON, Acting P. J.
SEGAL, J.