Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1284956, Jed Beebe, Judge.
Sanger & Swysen, Robert M. Sanger and Stephen K. Dunkle for Appellant.
Edmund G. Brown Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Theresa A. Patterson, Deputy Attorneys General, for Respondent.
PERREN, J.
Courts recognize the perils inherent in elaborating on the jury instruction defining the standard of proof beyond a reasonable doubt. (CALCRIM No. 220.) Our Supreme Court has admonished trial courts to avoid explaining the concept of reasonable doubt, and prosecutors to avoid attempts "to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart." (People v. Medina (1995) 11 Cal.4th 694, 745.) Another court expressly cautioned prosecutors against use of visual aids to "enliven closing argument." (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269.) Here, the prosecutor attempted to illustrate the concept of reasonable doubt through a power point presentation. Although we agree with Medina and Katzenberger, the prosecutor's reliance on the reasonable doubt jury instruction and detailed analysis of the evidence saved his argument from crossing into forbidden territory.
Steven Eric Bosell appeals the judgment following his convictions for rape through intoxication (Pen. Code, § 261, subd. (a)(3)), sodomy through intoxication (§ 286, subd. (i)), oral copulation through intoxication (§ 288a, subd. (i)), committing a lewd act on a 14- or 15-year-old child (two counts) (§ 288, subd. (c)(1)), misdemeanor battery (§ 240), and furnishing alcohol to a minor (four misdemeanor counts) (Bus. & Prof. Code, § 25658). Bosell was sentenced to 14 years in state prison, consisting of an eight-year upper term for sodomy, a full separate and consecutive six-year midterm for rape (§ 667.6, subd. (d)), and a concurrent eight year upper term for oral copulation. He was also sentenced to 86 days in county jail for the battery, and fined $1,000 for each furnishing alcohol count. Sentences for the lewd act offenses were stayed pursuant to section 654.
All statutory references are to the Penal Code unless otherwise stated.
Bosell contends the prosecutor engaged in prejudicial misconduct during argument. We affirm.
FACTS
Bosell was divorced and living with his 15-year-old daughter K.B. Teenage friends of K.B. often slept over at Bosell's house. Bosell allowed the teenagers to drink and smoke marijuana in his house and provided them with alcoholic beverages.
In May or June of 2008, 15-year-old Jane Doe 2 slept over at Bosell's house. Jane Doe 1 and K.B.'s boyfriend were also at the house. Bosell provided vodka for the teenagers. He was the only adult in the house. Jane Doe 2 became intoxicated from the vodka and vomited. After changing her clothes, Jane Doe 2 went to sleep in Bosell's bedroom. Bosell planned to sleep on a couch in another room.
Bosell came into the bedroom where Jane Doe 2 was sleeping. He removed the girl's shorts and underwear, and placed his fingers in her vagina. He then raped her. Jane Doe 2 did not say anything because she was shocked and drunk, and did not believe what was happening. When Bosell removed his penis, she pushed him off her. The next morning Jane Doe 2 told Jane Doe 1 what had happened. Jane Doe 2 also told K.B. what happened but did not tell her mother or report the incident to the police.
In June or July of 2008, 15-year-old Jane Doe 1 spent the night at Bosell's house. She drank alcohol provided by Bosell and became intoxicated. Bosell told her to go into his bedroom and lie down. She did. Bosell came into the room, got into bed with her, removed her underwear, and orally copulated and sodomized her. Jane Doe 1 pretended to be asleep and did nothing. The next morning, Jane Doe 1 told K.B. what happened and later told a friend but did not tell her parents. At some point after the incident, Bosell apologized to Jane Doe 1 and acknowledged that his conduct that night had been inappropriate.
Jane Doe 1 eventually told her mother what had happened with Bosell and reported the event to the police on September 3, 2008.
Santa Barbara County Sheriff's Deputy Ruby Wolff interviewed Jane Doe 1. As part of the investigation, Jane Doe 1 made a pretext telephone call to Bosell which was taped by the police. During the telephone call, Bosell denied that he had sex with her but admitted that he entered the room, got into bed with her, cuddled up to her and rubbed his hand on her leg. When Jane Doe 1 told him about the incident with Jane Doe 2, Bosell admitted that Jane Doe 2 had rolled on top of him, but that nothing else happened.
Detective Wolff interviewed Jane Doe 2 who revealed that Bosell had raped her while she was intoxicated and in Bosell's bed. Other teenage girls who spent time at Bosell's house testified that he provided the girls with alcohol.
DISCUSSION
Bosell contends that prosecutorial misconduct deprived him of a fair trial. He argues that the prosecutor's rebuttal argument misstated the burden of proof in a power point presentation, vouched for the prosecution's case, and appealed to the passion and prejudice of the jury. We conclude that none of these events constituted misconduct and, to the extent there was improper argument, it was not of such severity to affect the verdict or result in an unfair trial. (People v. Friend (2009) 47 Cal.4th 1, 30; People v. Hardy (1992) 2 Cal.4th 86, 173.)
Bosell claims a violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 7, 15, and 24 of the California Constitution. No separate constitutional discussion is required when, as here, rejection of a claim on appeal necessarily leads to rejection of any constitutional theory or "gloss" raised for the first time on appeal. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
A prosecutor who uses a pattern of deceptive or reprehensible methods to persuade the jury commits misconduct, but requires reversal of a conviction under the federal Constitution only when the misconduct infected the trial with such unfairness as to constitute a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181; People v. Friend, supra, 47 Cal.4th at p. 29.) Under state law, the use of deceptive or reprehensible methods to persuade the jury may require reversal even when the methods do not render the trial fundamentally unfair. (Friend, at p. 29.)
When a claim of misconduct is based on the prosecutor's argument before the jury, "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor has wide latitude during argument and argument may be vigorous as long as it is fair comment on the evidence and reasonable inferences or deductions from the evidence. (People v. Ward (2005) 36 Cal.4th 186, 215.)
Power Point Presentation
Bosell argues that a power point presentation during rebuttal argument conveyed the impression to the jury that a lesser standard of proof was required for conviction than proof beyond a reasonable doubt. We disagree.
The power point presentation was not a trial exhibit and is not part of the appellate record. The appellant has the burden to provide an adequate record for review, and failure to do so may be deemed a waiver of the issue on appeal. (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) Here, the prosecutor's comments during the presentation are in the record and it is undisputed that an image of California was placed on the monitor. It is unclear, however, whether other slides were used during the presentation. We evaluate the presentation based on the prosecutor's verbal argument and use of a single image of California in his presentation.
During rebuttal argument, the prosecutor correctly told the jury that a conviction requires proof beyond a reasonable doubt and such proof is "proof that leaves you with an abiding conviction that the charge is true." The prosecutor also stated that the jury should consider the evidence "in its totality."
The prosecutor then stated that he would present a "useful example of reasonable doubt" involving the identification of the state of California. The prosecutor displayed an image of the State of California on a computer monitor and related to the jury information received from several hypothetical persons. Each hypothetical person was unable to identify the State for various reasons, but provided some information about the State. The prosecutor stated that the first hypothetical person said the state "looks something like that, " referring to the image of California on the monitor. The next person said, "I know there's this large ocean next to it." Another said "there's a state next to it with a city down there where the dollar sign is where you can win lots of money." Another said, "I know there's a city San Francisco about there and that's a city of Los Angeles located about there." Another said the first three letters of the state capital are "S-a-c." The last hypothetical person said, "there's a city named San Diego way up at the northern border."
After the information was related to the jury, the prosecutor stated: "Does anybody have any reasonable doubt that that's California? No.... Somebody thought San Diego was in the northern border. Of course it's not. [¶] Do we have all the information? Is every city, every river, every mountain [there]? No. But do we not know that that's California? [¶]... Only the first three letters of Sacramento, but yet we know there's no reasonable doubt that this is California. [¶] So what--what is the defense arguing to you that is the San Diego in this case? Well, obviously the most glaring is the fact that Jane Doe number 1's brothers were involved in some kind of sodomy deal." The prosecutor then discussed specific evidence in the case at some length.
Bosell contends the prosecutor's argument inferentially diminished the legal requirements for a finding of proof beyond a reasonable doubt. He claims the presentation quantified the proof necessary to satisfy the reasonable doubt standard, and improperly compared the identification of an instantly recognizable image of California with a finding of guilt beyond a reasonable doubt.
Bosell relies on People v. Katzenberger, supra, 178 Cal.App.4th 1260, for the proposition that the use of a visual aid diminished the prosecution's burden of proof. In Katzenberger, the prosecutor made a power point presentation during closing argument consisting of an eight-piece jigsaw puzzle forming a picture of the Statue of Liberty. Six of the eight pieces were displayed on the screen sequentially and the prosecutor then stated to the jury: "'[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that's a picture of the Statue of Liberty, we don't need all the pieces....'" (Id. at pp. 1262, 1264-1265.)
The court concluded that the presentation constituted misconduct because "use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt." (People v. Katzenberger, supra, 178 Cal.App.4that p. 1268.) The court stated that the presentation left "the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence" and invited the jury "to guess or jump to a conclusion." (Id. at p. 1267.) The court, however, held that the error was harmless due to the presumption that the jury followed the trial court's instructions that correctly defined the reasonable doubt standard. (Id. at pp. 1268-1269.)
The instant case is distinguishable from Katzenberger. Here, the prosecutor utilized "an easily recognizable iconic image" as in Katzenberger, but did not divide the image into pieces of a puzzle or suggest a quantitative measure for negating reasonable doubt. The prosecutor revealed the image of California to the jury at the beginning of its presentation. No puzzle pieces had to be assembled in order to identify the image.
The power point presentation did not purport to denigrate the beyond a reasonable doubt standard. Instead, it properly illustrated the gathering of "evidence" from various people which might be combined in its totality to reach a conclusion. The prosecutor presented different "witnesses" with different pieces of evidence that could add up to guilt beyond a reasonable doubt. The prosecutor urged the jury to examine all of the evidence and to consider reevaluating certain evidence if it did not seem reasonable in light of other evidence. To use the prosecutor's example, there might be evidence that San Diego is on the northern border of California, but the jury had to consider the totality of the evidence to determine the weight to be given to the San Diego evidence. The prosecutor then connected the power point presentation to an assessment of the actual evidence by asking the jury what the defense claims "is the San Diego in this case."
We conclude that there was no prosecutorial misconduct regarding the prosecution's power point presentation in this case.
Vouching
Bosell contends that the prosecutor improperly vouched for his case by stating that the People have an obligation to be ethical and to "root out" false allegations. Bosell forfeited this claim by failing to object during trial. "To preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition." (People v. Bonilla (2007) 41 Cal.4th 313, 336.) Bosell concedes that he did not object to the challenged comment and does not claim an objection would have been futile. (See People v. Friend, supra, 47 Cal.4th at p. 29.) In any event, there was no impermissible "vouching" by the prosecutor.
It is misconduct for prosecutors to bolster their case "by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it." (People v. Huggins (2006) 38 Cal.4th 175, 206–207.) Conversely, a prosecutor's assurances regarding the honesty or reliability of prosecution witnesses based on the trial record rather than purported personal knowledge or belief is not improper vouching. (People v. Ward, supra, 36 Cal.4th at p. 215.)
Here, the prosecutor's comments were in direct response to defense counsel's closing argument which criticized the police investigation of the case sharply and at length. (People v. Bryden (1998) 63 Cal.App.4th 159, 184 [prosecutor may respond to defense counsel's arguments in rebuttal].) Defense counsel stated that law enforcement can become a "competitive enterprise" where officers fail to challenge victim stories, focus on convicting the defendant, and sometimes "look the other way." In rebuttal argument, the prosecutor responded by stating that the People "have an obligation to be ethical, and to accuse us of not using our resources to root out false allegations is totally unfair and improper." This was fair argument. The prosecutor's comment was a general defense of the police department and district attorney's office. The prosecutor did not refer to any facts that were not in evidence, or vouch for the honesty or reliability of the investigating officers in this particular case. (See, e.g., People v. Anderson (1990) 52 Cal.3d 453, 479; People v. Hall (2000) 82 Cal.App.4th 813, 817.)
Even if the prosecutor's argument was improper, no prejudice was demonstrated under either the state or federal standards for harmless error. (People v. Arias (1996) 13 Cal.4th 92, 161.) We see no possibility the jury would have interpreted the prosecutor's comments as "vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record." (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Appeal to Passion and Prejudice
Bosell also contends that the prosecutor committed misconduct by appealing to the jurors' passion and prejudice. In support of his contention, Bosell cites a comment by the prosecutor of a "never ending desire to avoid accountability" on the part of persons who commit crimes, and another comment that the jury can send a message to Bosell by either letting him go or holding him "accountable for his exploitation of these teenage girls." Bosell also challenges the prosecutor's remark that the jury should not "waste [the] courage" of the victims in taking "a chance that the criminal justice system would work."
It is improper for a prosecutor to appeal to the passion and prejudice of the jurors. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) Such appeals invite jurors to depart from their duty to view the evidence objectively and allow sympathy for victims to influence their verdict. (See People v. Fields (1983) 35 Cal.3d 329, 362.)
Here, the comments regarding "accountability" and "sending a message" are sometimes discouraged; they do not constitute misconduct. It is permissible to comment on the serious menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors. (People v. Escarcega (1969) 273 Cal.App.2d 853, 862–863.) The prosecution's comments properly asked the jury to take its duty seriously. (People v. Wash (1993) 6 Cal.4th 215, 261–262 [no misconduct where prosecutor urged the jury "to make a statement" and do "the right thing"]; People v. Lang (1989) 49 Cal.3d 991, 1041 [no misconduct to tell the jury that it is the jury's opportunity "to have a voice in your community"]; People v. Adanandus (2007) 157 Cal.App.4th 496, 511-512 [not misconduct to tell the jury that its verdicts could restore the "sense of order, the sense of law" in the community].)
The remark regarding the "courage" of the victims could be construed as appealing for sympathy for the victims. A prosecutor may not invite the jury to view the case through the victim's eyes and, thereby, appeal to the jury's sympathy for the victim. (People v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Lopez (2008) 42 Cal.4th 960, 969-970.) But, here, the prosecutor did not ask the jury to relive the experience of the victims. (See Leonard, at p. 1418.) He only asked the jury to view their willingness to report the incidents to the police as praiseworthy.
Also, we review the prosecutor's comment in the context of the argument as a whole to determine whether there is a reasonable likelihood that the jury understood the remark as asking jurors to decide the case from the point of view of the victims. (See People v. Cole (2004) 33 Cal.4th 1158, 1203.) The isolated and brief comment did not inject any degree of unfairness into the trial. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.