Opinion
D076542
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO CISNEROS, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Riverside County Super. Ct. No. RIF1311613) APPEAL from a judgment of the Superior Court of Riverside County, Eric G. Helgesen and Mac R. Fisher, Judges. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Teresa Torreblanca, and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Alejandro Cisneros of sexual penetration with a child 10 years of age or under in violation of Penal Code section 288.7, subdivision (b). The victim was his stepdaughter Jane Doe. The trial court sentenced him to a prison term of 15 years to life.
All statutory references are to the Penal Code.
A different jury in a previous trial convicted Cisneros of sexually penetrating Jane Doe in violation of section 288.7, subdivision (b), and engaging in a lewd act with Jane Doe in violation of section 288, subdivision (a). However, the court granted Cisneros's motion for new trial on the ground of ineffective assistance of counsel. In the second trial, Cisneros was represented by a different attorney and the court dismissed the count under section 288, subdivision (a), on the prosecutor's motion.
Cisneros contends (1) prejudicial prosecutorial misconduct during closing argument violated his due process and Sixth Amendment rights; (2) he was denied effective assistance of counsel and deprived of his Sixth Amendment rights when his trial counsel failed to object to the prosecutor's repeated misconduct during argument; (3) the court erred in denying his motion to suppress evidence obtained in violation of his Fourth Amendment rights; (4) even if he was not prejudiced by any of these errors individually, he was denied a fair trial by the cumulative effect of the errors, including the court's error in denying his motion to exclude statements obtained in violation of his Fifth and Sixth Amendment rights guaranteed by Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We affirm.
In addition to this appeal, Cisneros has filed a related petition for writ of habeas corpus, which we deny by separate order. (In re Alejandro Cisneros (June ___, 2020, D076820) [non.pub. ord.].)
FACTS
Jane Doe was born in May 2003. In 2013 she lived in a house with her mother, older sister, two younger brothers, and Cisneros, who was her stepfather. Cisneros had been in her life since she was three years old and she considered him her father. Jane Doe shared a bedroom with her oldest brother, who slept in his own bed. Her youngest brother Andrew occasionally slept in her bed with her.
On October 15, 2013 at around 6:30 p.m., Jane Doe's mother and Cisneros went to a friend's house to watch a sporting event on television. Jane Doe went to bed before they returned. At trial, Jane Doe testified that she woke up when someone laid Andrew next to her in her bed. That person then grabbed her arm and pulled on her pajamas. Jane Doe sat up and said, "Who are you?" The person said, "Oh shit," and ran out of the room. Jane Doe testified she was "scared" until she realized the person was Cisneros.
In response to being questioned about not having told the police that Cisneros grabbed her arm, Jane Doe testified that she was not sure if it was her arm; she "just remember[ed] being grabbed."
Jane Doe got out of bed and ran to the kitchen to get a telephone. She then locked herself in a bathroom and called 9-1-1. When the 9-1-1 dispatcher answered, Jane Doe said, "Hi. . . . I think I was being raped." The dispatcher responded, "All right. What's going on?" Jane Doe repeated, "I was being raped." After getting Jane Doe's name and address, the dispatcher asked, "And exactly what happened?" Jane Doe replied, "I was asleep and then I woke up in my room. I think it was my dad. And then [he] came and he started pulling down my pants and he - he started touching me." The dispatcher asked, "How did he touch you exactly?" Jane Doe replied, "Well he got his hands puttin' them in the middle of my legs and started touching me in - in the middle of my - of my place." At one point, Jane Doe told the dispatcher, "He's knocking at the door. Help me."
At trial, the prosecutor asked Jane Doe, "To you, what is the middle of your place?" She responded, "A vagina."
The police arrived shortly after 12:30 a.m. while Jane Doe was on the phone with the 9-1-1 dispatcher. Deputy Sheriff Michael Buelna went to the bathroom and called out, "Hey, it's the police," and Jane Doe came out of the bathroom. Buelna then took Jane Doe to the backyard patio and questioned her about what had happened. He recorded the interview with a body camera. At trial, Buelna testified that Jane Doe told him Cisneros pulled her pajamas and underwear down and removed them completely from her right leg. She said that Cisneros's hand went up between her thighs, he put his hand on her vagina, and placed his fingers inside her. After Buelna finished interviewing Jane Doe, he placed Cisneros under arrest.
Buelna's recording of his interview with Jane Doe was played for the jury and the jury was provided a written transcript of the interview. Jane Doe's responses to Buelna's questions were sometimes inaudible and the audio lagged behind the video. However, Buelna testified that his practice in an interview was to repeat back the interviewee's statements to make sure he heard the statement correctly and there was no misunderstanding, and he did that frequently when he interviewed Jane Doe. He testified that he did not repeat back anything that Jane Doe did not say.
Cisneros was taken to a police station where he was examined by a forensic nurse at 2:30 a.m. The nurse used swabs to collect DNA from Cisneros's fingers on both hands. The nurse also did a visual examination of Cisneros's body after having him remove all of his clothes and observed a clear sticky substance on his penis. When asked at trial, as a layperson, if the substance "appeared consistent with ejaculation," she responded, "It could have been."
The nurse collected a swab of the substance on Cisneros's penis but did not know whether it was tested. Nothing in the record indicates it was tested.
DNA testing revealed that the sample taken from Cisneros's fingers on his right hand contained DNA profiles from two persons-a major female profile and a minor male profile. The ratio of female DNA to male DNA was three to one. The female DNA profile was a match for Jane Doe, meaning the "random match probability" that it came from a southwestern Hispanic female other than Jane Doe was 1 in 170 quadrillion. The quantity of female DNA on Cisneros's fingers was not consistent with touching a dry surface, a blanket, or someone's arm in passing; it was more consistent with a more highly concentrated DNA source like saliva, mucus, or vaginal fluid.
On November 19, 2013, Ronald Braasch, an investigator for the Riverside County District Attorney, went to Jane Doe's elementary school to talk to her because her mother had called the district attorney's office and said there were inconsistencies in the police report. Jane Doe told Braasch that she had talked about the case with her mother. She denied that Cisneros had put his hand on her vagina or put his fingers inside her, and denied that she told officers on the night of the incident that he had done so. She also denied telling officers that Cisneros pulled down her pajamas or touched her leg. She admitted that Cisneros pulled the covers off of her and said he only touched her stomach.
At trial, Jane Doe testified that at the time of the incident, she did not know what the words "vagina" or "rape" meant, but she knew the difference between her leg and "the middle of your place" and that "middle of your place" meant "[a] vagina." She testified that she knew (at trial) that she had not been raped, contrary to what she reported to the 9-1-1 dispatcher. Regarding her reference to her "middle area" when Buelna questioned her, she testified, "I possibly could have been talking about my thighs, my leg, or talking about my vagina." When asked if Cisneros "put his fingers between, parting your vulva[,]" she replied, "No." When later asked if Cisneros "actually part[ed her] vagina and enter[ed her] genitals[,]" she again replied, "No."
DISCUSSION
I. Prosecutorial Misconduct
Cisneros contends the prosecutor committed various acts of prejudicial misconduct during her closing argument.
A. Applicable legal principles
" ' "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.] " ' [Citation.] 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury.' " (People v. Tully (2012) 54 Cal.4th 952, 1009-1010.)
The California Supreme Court has observed that " '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (Centeno, supra, 60 Cal.4th at p. 667.) "Advocates are given significant leeway in discussing the legal and factual merits of a case during argument." (Id. at p. 666.)
B. Forfeiture
The People contend Cisneros forfeited his claims of prosecutorial misconduct by failing to object to the misconduct or error at trial. Cisneros argues he should not be deemed to have forfeited any of his claims because (1) he objected five times to the prosecutor's closing argument; (2) further objections would have been futile; (3) an admonition would not have cured the harm caused by the misconduct; (4) his prosecutorial misconduct claim raises a pure question of law based on undisputed facts; and (5) this court should exercise discretion to review the claim even if it was inadequately preserved.
We will address Cisneros's prosecutorial misconduct claims on the merits in light of his argument that he received ineffective assistance of counsel to the extent any of his claims were forfeited by his trial counsel's failure to object. Assuming Cisneros preserved all of his prosecutorial misconduct claims, we have considered each of them and conclude there was no prejudicial misconduct.
C. Prosecutor's burden of proof
Cisneros contends the prosecutor improperly argued that the jury could find him guilty on a lower standard of proof than proof beyond a reasonable doubt at four points during her closing argument. We do not view any of the argument in question as an invitation to hold the prosecution to a lower burden of proof.
The court correctly instructed the jury that to prove Cisneros was guilty of engaging in sexual penetration with a child 10 years of age or younger, the People had to prove that he engaged in an act of sexual penetration with Jane Doe. The court further instructed that "[s]exual penetration means penetration, however slight, of the genital or anal opening of the other person by any foreign object, substance, instrument, or device for the purpose of arousal or gratification[,]" and that "[a] foreign object, substance, instrument, or device includes any part of the body except a sexual organ."
Cisneros contends the prosecutor attempted to reduce the People's burden of proof on the element of penetration in making the following statement: "When you put your fingers on the vagina of a child, I think logic dictates that if you're in the middle of the vagina, you're already within the lips." He contends the prosecutor again asked the jury to find him guilty even though she had not proved penetration beyond a reasonable doubt when she made the following comments regarding the video in which Jane Doe told Buelna that her underwear was down: "There is no confusion about that answer. Her underwear was down. She could have easily said no. What child doesn't know what underwear is? And if he touched her with her underwear down, penetration has occurred." Cisneros argues that by misstating the law, this argument had "the net effect of lowering the burden of proof."
Defense counsel objected that this comment misstated the law and the court responded: "The law doesn't say underwear is down. It's penetration. I think she was arguing implications of that."
We do not view the statement that "logic dictates that if you're in the middle of the vagina, you're already within the lips" as an invitation for the jury to apply a lower standard of proof than guilty beyond a reasonable doubt; at worst, it invited the jury to make an unreasonable inference. The same applies to the statement that "if he touched her with her underwear down, penetration has occurred." "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide." (People v. Dennis (1998) 17 Cal.4th 468, 522.) It may be unreasonable to infer that penetration in violation of section 288.7, subdivision (b), occurred solely from the fact the victim's underwear was down, but asking the jury to make an unreasonable inference does not equate with asking them to apply a lower standard of proof than proof beyond a reasonable doubt.
The prosecutor's invitation or suggestion during argument to draw unreasonable inferences from the evidence was not prejudicial misconduct because the jury presumably was intelligent enough to reject any unreasonable inferences, as the court instructed it to do and as a matter of common sense. The court instructed the jury with CALCRIM No. 224, which provides that "when you consider circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." " 'Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.' " (People v. Lewis (2001) 26 Cal.4th 334, 390; People v. McKinnon (2011) 52 Cal.4th 610, 670 [it was highly unlikely jurors understood they could infer the defendant orchestrated a threat and attack where there was no evidence from which that inference reasonably could be drawn].)
As Justice Compton observed in his dissenting opinion in People v. Mendoza (1974) 37 Cal.App.3d 717 (Mendoza), "[a]nyone with any experience in the trial of criminal cases knows that jurors conscientiously perform their duties and are not prone to convict individuals of crime on the basis of flimsy evidence simply because of statements made by the prosecuting attorney." (Mendoza, supra, at pp. 727-728, dis. opn. of Compton, J.)
Cisneros contends the prosecutor again attempted to reduce the burden of proof on penetration when she said, "Maybe he didn't go in there and put his fingers in. Maybe he was there and her DNA somehow was on the-her discharge was on the pillow and he touched it. You know, if it's unreasonable, that's not reasonable doubt." In making those comments, the prosecutor was not asking the jury to apply a lower standard of proof than proof beyond a reasonable doubt; the prosecutor was merely giving an example of an unreasonable inference and making the point that an unreasonable inference does not create reasonable doubt. She did not imply or suggest that the jury could convict based on inferences that did not support a finding of guilt beyond a reasonable doubt. "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory." (Centeno, supra, 60 Cal.4th at p. 672.) Arguing that the jury must decide what is reasonable to believe and what is unreasonable to believe, and must accept the reasonable and reject the unreasonable, is proper and does not lessen the prosecution's burden of proof because " '[t]he prosecution must prove the case beyond a reasonable doubt, not beyond an unreasonable doubt.' " (Id. at p. 672; People v. Romero (2008) 44 Cal.4th 386, 416.)
Cisneros argues that the prosecutor's argument here is similar to argument the California Supreme Court found to be improper in Centeno. The Centeno court observed that "it is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor in Centeno committed error because she "did not simply urge the jury to ' "accept the reasonable and reject the unreasonable" ' in evaluating the evidence before it. [Citation.] Rather, she confounded the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Centeno, supra, 60 Cal.4th at p 673.)
The prosecutor here did not confound the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt-i.e., she did not suggest the jury could find Cisneros guilty based on a reasonable account of the evidence or that the People's burden was satisfied if the jury found her account of the evidence reasonable; she merely told the jury that an unreasonable account of the evidence was not reasonable doubt. She did not commit error in doing so.
Cisneros contends the prosecutor "continued her assault on the reasonable-doubt standard" in her rebuttal argument by stating, "If any of the things that you're thinking about don't equate with the totality of the circumstances, that is what you have to look at, the totality of the circumstances, your doubt is unreasonable." Presumably, this statement was intended to be a reference to the court's instruction to the jury that "[i]n deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial." (CALCRIM No. 220, italics added.) Although it may have been inartful to refer to the "totality of the circumstances" instead of "all of the evidence," we fail to see how this choice of words would have led the jurors to conclude they were free to accept unreasonable conclusions from the evidence or find Cisneros guilty based on a lower standard than proof beyond a reasonable doubt. The prosecutor did not improperly argue that the jury could find Cisneros guilty without proof beyond a reasonable doubt.
This comment was a continuation of the prosecutor's argument, discussed above, that an unreasonable inference does not support reasonable doubt. The context of the comment is as follows: "That DNA [on Cisneros's fingers] did come from somewhere else. Maybe he didn't go in there and put his fingers in. Maybe he was there and her DNA somehow was on the—her discharge was on the pillow and he touched it. You know, if it's unreasonable, that's not reasonable doubt. If any of the things that you're thinking about don't equate with the totality of the circumstances, that is what you have to look at, the totality of the circumstances, your doubt is unreasonable."
D. Vouching for witnesses
Cisneros contends the prosecutor committed error by improperly vouching for the credibility of Jane Doe's statements to Buelna on the night of the incident and the credibility of other prosecution witnesses. He claims the following rebuttal argument constituted vouching for Jane Doe: "And the facts of this case come from [Jane Doe]. The facts of the case come from the physical evidence. [Defense counsel] is talking about, you know, he's scared that you're going to follow-or you're going to somehow fall prey to some sort of a-something I'm trying to sell to you, and it's offensive. It's offensive to me and offensive to what I stand for because that implies that I would somehow try to put false evidence on a[n] innocent person. Why would I do that?" Cisneros argues that this statement constituted vouching for Jane Doe by telling the jurors they should believe Jane Doe because the prosecutor would not present false evidence.
The prosecutor obviously did not vouch for Jane Doe's credibility as a trial witness because Jane Doe recanted her incriminating statements on the night of the incident at trial and the prosecutor challenged the credibility of her recantation.
This argument was in response to defense counsel's argument that he was "scared" the jurors were going to "fall prey" to the prosecutor's attempt to get them "to apply a standard of proof that is less than proof beyond a reasonable doubt."
Cisneros argues the following section of the prosecutor's argument constituted improper vouching for Jane Doe and all of the prosecution witnesses: "Every time there is a criminal jury trial, every time a defendant is facing charges, a defense attorney is going to be scared that the defendant is going to be found guilty. Of course, [defense counsel] is going to be scared that you may follow the evidence, that you may follow the law, and that you may convict his client. That is true in every trial.
Although we do not view these comments as prejudicial error, we view them as improper argument to the extent they suggest that all criminal defendants are guilty. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, fn. 14 [Prosecutor's argument implying that all criminal defendants are guilty standing alone did not rise to the level of reversible error, but contributed to the risk that the jury would convict on extraneous considerations rather than on the evidence, and was "relevant to the need for carefully framed instructions designed to assure the accused be judged only on the evidence."]
"Similarly, every DA is going to be scared that if you don't follow the law, you're potentially letting a criminal loose, talking about Ron Braasch who actually answered a mother's hysterical call that the police report is incorrect and wanted to follow up, when that child's mind was already tainted by her mother, screaming at the school and calling the DA's office and preventing her from talking to law enforcement. Imagine if the DA's office every time they got some sort of a family interference of lie, protect, if we drop the case. What would that say about us?
"What kind of protections would the community get from that? Mr. Braasch followed up. He tried to do what was right. He went to the school to try to talk to this child, but she was already tainted. And, thankfully, Investigator Braasch didn't say, she doesn't care. Mom doesn't want us to do anything. We're going to let it go. That would have been the easy way out. If you want to blame the system and talk about a system being corrupt and they're going after the wrong guy, why don't you talk about the system not giving up on a victim simply because her mother was influencing the situation. Simply because the mother was yelling saying, don't talk to the police. That would have been an unjust system, not one that cares when the victim has already spoken and told the truth. When a [10]-year-old child has told the truth."
Cisneros contends the prosecutor explicitly vouched for Jane Doe when she said: "That would have been an unjust system, not one that cares when the victim has already spoken and told the truth. When a [10]-year-old child has told the truth[,]" and she vouched for all prosecution witnesses by arguing that the district attorney's office is always correct and if it ever gave up on a case it would allow a guilty criminal to go free. Cisneros argues that the overall effect of the arguments was to vouch for all prosecution witnesses because "[t]he only way these arguments could be correct was if prosecution witnesses were testifying truthfully."
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [his or] her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye), italics added, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Cisneros's claim that the prosecutor improperly vouched for Jane Doe lacks merit because nothing in the prosecutor's argument suggested facts outside the record supported her view that Jane Doe spoke truthfully to the 9-1-1 dispatcher and Buelna immediately after the incident. To the contrary, she began the challenged argument by stating "the facts of this case come from [Jane Doe]" and "from the physical evidence" before she assured the jury she would not intentionally present false evidence to convict an innocent person.
Thus, the prosecutor effectively argued that the People's case was supported by evidence presented to the jury, specifically, Jane Doe's initial statements about the incident and the DNA evidence. The prosecutor's assurance that she would not put on false evidence to convict an innocent person did not suggest she was aware of facts or evidence outside the record supporting her argument that Jane Doe spoke truthfully immediately after the incident and not when she later recanted her initial statements. To borrow the words of our Supreme Court, although the jury might have believed the prosecutor thought Jane Doe was telling the truth on the night of the incident, " 'there is no reason to think [the jury] would have concluded the prosecutor had special information outside the record on which to base that belief, nor is there any reason to think this inference would have led the jury to conclude it no longer needed to evaluate [Jane Doe's] credibility for itself.' " (People v. Williams (2013) 56 Cal.4th 165, 193, quoting People v. Bonilla (2007) 41 Cal.4th 313, 337, fn. 9.) The prosecutor did not improperly vouch for Jane Doe.
Nor did the prosecutor improperly vouch for the credibility of all prosecution witnesses by arguing that the district attorney's office is always correct and would allow a guilty criminal to go free if it ever gave up on a case. The prosecutor did not say the district attorney's office is always correct or suggest that any time it decided not to pursue a prosecution a guilty criminal would go free. When she argued the "system" would be unjust if it gave up this case "when the victim has already spoken and told the truth. When a [10]-year-old child has told the truth[,]" she was merely emphasizing that Jane Doe's initial statements immediately after the incident were credible, and her later recantations were not. She did not suggest she knew of facts or evidence not presented to the jury that supported the credibility of Jane Doe's initial statements apart from the circumstances surrounding them, which were made known to the jury. The prosecutor's argument cannot be characterized as improper vouching for Jane Doe or for other prosecution witnesses.
E. Appeal to passion
Cisneros contends the prosecutor improperly attempted to sway the jurors by arousing their passions in her rebuttal argument when she stated: "Now, I'm being accused of somehow selling sympathy to you. These are the facts. How else can I explain to you what that child must have been going through, and why she said what she said? How else do we listen to the 9-1-1 call and not think about what she must have gone through?" Cisneros's counsel objected at that point and the court overruled the objection. Cisneros contends the prosecutor again appealed to the jurors' passions shortly after the court overruled his objection when she stated: "You have to consider what that child went through, what her emotional state is to figure out if what she was saying was the truth." Cisneros argues that asking the jury to consider what Jane Doe "went through" during and immediately after the incident, and to consider "what her emotional state [was] to figure out if what she was saying was the truth" were improper appeals to the juror's passions. We conclude no misconduct occurred.
Cisneros earlier successfully objected to the following argument: "The reality is, is if she's going to hide the truth and she's going to pretend like everything was okay, and if we're going to take her word for it and say okay, what happens to a child like [10]-year-old (Jane Doe)? What happens to a child like (Jane Doe) if she doesn't call the police?" The court sustained Cisneros's objection on the ground of improper appeal to passion and prejudice and instructed the jury to "disregard the last comment."
For context, we note the challenged statement was part of the prosecutor's following argument immediately after the overruling of the objection: "You have to consider it because that is how you understand what it is she is trying to say to you. That is part of the evaluation process. That is how you look at the totality of the circumstances and figure out if it happened or not. How else do you know if a child is telling the truth if you don't consider her emotional state when she is talking? Am I supposed to stay quiet and say, a finger entered a vagina. Then I won't be accused of being emotionally appealing. That is not my intent, folks. If you're only going to rule on this case based on sympathy, I'll tell you right now, do not do it. You have to consider what that child went through, what her emotional state is to figure out if what she was saying was the truth." (Italics added.)
" 'As a general rule, a prosecutor may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim.' " (People v. Leon (2015) 61 Cal.4th 569, 606.) It is also " ' "improper to make arguments to the jury that give it the impression that 'emotion may reign over reason,' and to present 'irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.' [Citation.]" [Citation.]' [Citation.] However, prosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it." (People v. Leon, supra, at pp. 605-606.)
Here, it was fair comment on the evidence for the prosecutor to ask the jurors to consider Jane Doe's emotional state during and immediately after the incident she reported to the 9-1-1 dispatcher and Buelna because her emotional state was highly relevant to whether she was being truthful then versus when she testified at trial. (See People v. Dykes (2009) 46 Cal.4th 731, 768 "[[T]he issue of defendant's demeanor and state of mind during his various statements to the police was relevant to the credibility of those statements."]; People v. Merriman (2014) 60 Cal.4th 1, 64 [A spontaneous utterance in response to a startling occurrence is " 'considered trustworthy, and admissible at trial despite its hearsay character, because "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." ' "].)
Jane Doe's emotional state-i.e., what she was "going through" on the night of the incident-was circumstantial evidence that she was speaking truthfully then and not when she recanted her initial statements after sufficient time had passed for her to reflect on their consequences and be influenced by her mother. Thus, it was not improper for the prosecutor to tell the jurors that they had to consider Jane Doe's emotional state when she made the 9-1-1 call and when Buelna interviewed her at the scene "to figure out if what she was saying was the truth." That argument was not an appeal to the jurors' sympathy; in fact immediately before making that argument, the prosecutor expressly told the jury not to base its decision on sympathy, stating: "If you're only going to rule on this case based on sympathy, I'll tell you right now, do not do it. You have to consider what that child went through, what her emotional state is to figure out if what she was saying was the truth."
Moreover, the court instructed the jury with CALCRIM No. 200, which includes the directive to "not let bias, sympathy, prejudice, or public opinion influence your decision[,]" and CALCRIM No. 222, which instructs that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." We presume the jurors understood and followed those instructions. (People v. Lewis, supra, 26 Cal.4th at p. 390.) Considering those instructions and the prosecutor's explanation of the relevance of Jane Doe's emotional state to her credibility on the night of the incident, we conclude there was no reasonable likelihood the jury interpreted the prosecutor's argument as an invitation to ignore the evidence and find Cisneros guilty on the basis of sympathy or passion.
F. Appeal to the need for law and order
Cisneros contends the prosecutor committed misconduct by appealing to the jurors' need for law and order when she said, "Imagine if the DA's office every time they got some sort of family interference of lie, protect, if we drop the case. What would that say about us? [¶] What kind of protections would the community get from that?" Cisneros cites seven cases as authority for his claim that the prosecutor erred by appealing to the need for law and order. None of those cases persuades us that the prosecutor committed such error.
In most of the cases that Cisneros cites, the prosecutor's prejudicial misconduct was not an appeal to the jury's need for law and order. Cisneros cites People v. Adams (1939) 14 Cal.2d 154 (Adams), a child molestation case in which the prosecutor committed prejudicial error by referring in opening statement to two highly notorious cases with egregious facts. (Id. at pp. 161-162.) Cisneros notes that the prosecutor asked the jury to "render a verdict such as you will be proud of," but the Supreme Court's focus in reversing was not on that statement but the prosecutor's prejudicial reference to the two highly publicized cases. The prosecutor's argument in the present case did not reference any other case or invoke civic pride or public duty as a reason to convict.
In context, the Supreme Court concluded: "[I]t is not entirely improbable of belief, that the purpose of the deputy district attorney in making reference to those cases was not confined to that of assuring and reminding the jurors that occurrences of the nature of that involved in the instant case were not uncommon,—but that, by recalling the [notorious] cases to the minds of the jurors, they might entertain a feeling of hostility toward defendant and thereby engender a hatred of him, with the consequence, as [the prosecutor] suggested, that they would 'render a verdict such as you will be proud of and can adhere to in the days to come'. No conclusion other than that the remarks were inflammatory and most objectionable may reasonably be reached." (Adams, supra, 14 Cal.2d at p. 162, italics added.)
Cisneros cites Mendoza, in which the majority concluded the prosecutor committed cumulatively prejudicial error by, among other things, asking the jury in closing argument to " 'take [the defendant] off the streets.' " (Mendoza, supra, 37 Cal.App.3d at p. 727.) The Mendoza majority stated: "California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury's responsibility is limited to the determination of the defendant's guilt or innocence of the charge against him." In dissent, Justice Compton stated: "The prosecutor's exhortation to the jury 'to take Mr. Mendoza off the streets' was nothing more than a plea to the jury to render a verdict of guilty." (Id. at pp. 727-728, dis. opn. of Compton, J.) We note the Mendoza majority did not characterize the prosecutor's exhortation as an appeal to the jury's need for law and order; it viewed it as an improper request to punish the defendant instead of simply determining his guilt or innocence.
Cisneros next cites People v. Talle (1952) 111 Cal.App.2d 650 (Talle), in which the appellate court concluded the prosecutor committed prejudicial error in numerous ways during his closing argument, which the court viewed as "highly inflammatory and improper in many respects." (Id. at p. 673.) Reversal was not based on an improper appeal to the jury's need for law and order but on the prosecutor's many other egregious and wide-ranging instances of highly improper argument over 200 pages of transcript. (Id. at pp. 673-678.)
The Talle court summarized the wide range of prosecutorial misconduct as follows: "It hardly needs citation of authority that an argument by the prosecution that appeals to the passion or prejudice of the jury, that asks for a verdict of guilty because of sympathy for the deceased, that repeatedly characterizes the defendant as a 'despicable beast,' that throws the dignity and prestige of the district attorney's office behind a personal assertion in the belief of the guilt of the accused, that avers that defendants have too many rights, that vilifies, without warrant, defense counsel and defense witnesses, that engages in fanciful inferences, not warranted by the evidence, and makes them as statements of fact not warranted by the record, that misstates the record, that uses evidence admitted for a limited purpose as substantive evidence of the facts there recited, that broadly implies the prosecution is possessed of much evidence tending to show guilt that has not been introduced, is erroneous and prejudicial." (Talle, supra, 111 Cal.App.2d at pp. 676-677.)
The prosecutor in People v. Hail (1914) 25 Cal.App. 342 (Hail), also committed many acts of prosecutorial misconduct in closing argument. Cisneros cites the following argument: " 'Men have been acquitted who have committed cold-blooded murder; and if you were to acquit this man under the testimony here, you would be allowing a cold-blooded murderer with human gore yet dripping upon his hands to go unwhipped of justice[.] Gentlemen, you cannot do it, you will not do it. Should you do it you would be afraid to go out on the street and meet your fellow-men.' " (Id. at pp. 356-357.) The Hail court did not view this argument as an improper appeal to the jury's need for law and order; it found it to be improper jury intimidation, stating: "That the effect of the statement that the jurors, in the event that they acquitted the defendant, would be afraid to go out upon the public streets and meet their fellow-men was to intimidate or influence them to return a verdict of conviction, regardless of their views as to the effect of the evidence, cannot for a moment be doubted." (Id. at p. 357.)
Cisneros also cites three federal cases that are distinguishable. In United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1148 (Weatherspoon) the prosecutor argued: " 'Convicting Mr. Weatherspoon is gonna make you comfortable knowing there's not convicted felons on the street with loaded handguns, that there's not convicted felons carrying around semiautomatic weapon . . . .' " (Id. at p. 1149.) The Weatherspoon court noted it had "consistently cautioned against prosecutorial statements designed to appeal to the passions, fears and vulnerabilities of the jury" and stated the rule that " '[a] prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking.' " (Ibid.) In the present case, the prosecutor did not argue that convicting Cisneros would protect the community, preserve civil order, or deter future lawbreaking; she argued that the district attorney's office had a responsibility to not abandon a case when a victim's family seeks to protect the defendant by pressuring the victim to retract accusations against him. We do not view this argument as a prejudicial appeal to the jury's need for law and order.
At that point the prosecutor's argument was interrupted by an objection from defense counsel. (Weatherspoon, supra, 410 F.3d at p. 1149.)
In Commonwealth of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475 (Mendiola) the court concluded the prosecutor improperly appealed to the passions, fears, and vulnerabilities of the jury by arguing: "[Defendant] deserves to be punished for what he did and that's your decision. And it's important because, as I said, that gun is still out there. If you say not guilty, he walks out right out the door, right behind you." (Id. at p. 486.) The court viewed the intent of these comments as being "to induce a level of fear in the jurors so as to guarantee a guilty verdict." (Id. at p. 487.) The prosecutor's comments here regarding the district attorney's obligation to prosecute cases it deems meritorious were not intended to induce fear in the jury or appeal to its vulnerabilities.
Finally, Cisneros cites United States v. Solivan (6th Cir. 1991) 937 F.2d 1146 (Solivan), in which the prosecutor improperly referred to the "war on drugs" in closing argument in a trial against a drug dealer. The Solivan court noted the illegal drug trade was "the specific focus of much national attention, concern and fear" and, that "[t]he almost daily attention given by the media and politicians to the drug trade and gang violence . . . have heightened the nation's awareness of, and hardened its attitudes towards, the drug problem. Thus, the prosecutor's appeal to the jury to convict a defendant as a blow to the drug problem or to send messages to drug dealers cannot be other than highly prejudicial given the specific context of the case in the current social-political environment." (Id. at p. 1154.) The court distinguished a case relied on by the government involving a prosecutor's permissible argument that amounted to "a mere innocuous reference to the community or societal need to convict guilty people." (Id. at p. 1155.)
The government relied on United States v. Alloway (6th Cir.1968) 397 F.2d 105, in which the prosecutor argued: " 'You, the jurors, are called upon in this case to be the world conscience of the community. And I'm calling on this jury to speak out for the community and let the John Alloways know that this type of conduct will not be tolerated, that we're not going to tolerate [armed robbery] . . . .' " (U.S. v. Solivan, supra, 937 F.2d at p. 1154.)
Needless to say, the prosecutor's remarks in the instant case were not an appeal to convict Cisneros as a blow to a national crisis like the drug problem, nor did they suggest the jury would be assisting in the solution of a pressing social problem by convicting Cisneros. They were more in the nature of an innocuous reference to the community or societal need to convict a guilty person, their focus being on the obligation of the district attorney to prosecute cases when the evidence supports prosecution and to not abandon them for improper reasons. The prosecutor did not prejudicially appeal to the jury's or society's need for law and order.
G. Disparagement of defense counsel and the defense bar
Defense counsel's closing argument to the jury included the following: "Misunderstanding and confusion, but not proof beyond a reasonable doubt. The problem with the theory the DA is trying to sell you is that she's asked you to walk this path in the evidence, this meandering path where she wants you to believe certain things that [Jane Doe] said beyond a reasonable doubt, and set aside, all together, whatever isn't compatible with her theory."
After arguing that the evidence created reasonable doubt as to Cisneros's guilt, defense counsel stated: "But I want to be realistic. And to be realistic, I'm going to tell you that I'm scared. I'm scared that these allegations in this case are so serious that you're going to fall prey to this, the concept of those little girls in the place of safety, that is not the evidence in the case. That is an appeal to your passion and prejudice. That's trying to get you to make a decision in this case, not based on what you actually heard, what came out of [Jane Doe's] mouth each and every time she told the story, it's trying to get you to go, Oh, if this was me, I would do this. If this was my child, I would feel this way. It's trying to get you to apply a standard of proof that is less than proof beyond a reasonable doubt. And, frankly, I'm scared that you're going to do that. [¶] And if you do that and you walk down that road that she's chosen for you where you ignore everything around you, every other account that [Jane Doe] has provided, even if you believe that account, that is not proof beyond a reasonable doubt that her genitals were penetrated. Period. That's it. That is not proof beyond a reasonable doubt. Because no one did the work to establish whether her vulva, whether her labia majora was really parted at all. And that is what's key in this case."
In rebuttal, the prosecutor responded to the defense counsel's above argument as follows: "It's offensive to stand up here and say that I'm selling you something. I'm stating the facts of the case, giving you every audio, every video, not the defense, the prosecutor played all of that for you. It's my burden to prove to you the case, and there's been nothing, absolutely nothing hidden from you.
"Every time there is a criminal jury trial, every time a defendant is facing charges, a defense attorney is going to be scared that the defendant is going to be found guilty. Of course, [defense counsel] is going to be scared that you may follow the evidence, that you may follow the law, and that you may convict his client. That is true in every trial.
"Similarly, every DA is going to be scared that if you don't follow the law, you're potentially letting a criminal loose, talking about Ron Braasch who actually answered a mother's hysterical call that the police report is incorrect and wanted to follow up, when that child's mind was already tainted by her mother, screaming at the school and calling the DA's office and preventing her from talking to law enforcement. Imagine if the DA's office every time they got some sort of a family interference of lie, protect, if we drop the case. What would that say about us?"
Cisneros argues that the prosecutor's rebuttal improperly disparaged defense counsel and the defense bar in general by arguing that defense counsel and all criminal defense attorneys were motivated by a desire to keep juries from following the law, while the prosecutor and prosecutors and law enforcement in general were interested only in presenting the jury with the truth. We do not view the prosecutor's argument as improper disparagement of defense counsel or the entire defense bar.
" ' "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." [Citations.] "In evaluating a claim of such misconduct, we determine whether the prosecutor's comments were a fair response to defense counsel's remarks" [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].' [Citation.] 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1336-1337.)
Here, the prosecutor's challenged argument was permissible rebuttal to defense counsel's argument that he was "scared " the "allegations in this case are so serious" that the jury was going to "fall prey" to the prosecutor's "appeal to passion and prejudice" and "apply a standard of proof that is less than proof beyond a reasonable doubt." The prosecutor did not say that prosecutors in general and law enforcement are interested only in presenting juries with the truth. She reasonably stated that prosecutors are "scared" (using defense counsel's word) that if a jury does not follow the law it is "potentially letting a criminal loose . . . ." (Italics added.) In other words, a prosecutor is concerned that if a jury does not follow the law as set forth in instructions, it potentially could acquit a guilty defendant, just as defense essentially argued that he was "scared" that if the jury did not follow the law set forth in the jury instructions regarding the prosecution's burden of proof, it potentially could convict a defendant who should be acquitted. The prosecutor's argument was a reasonable description of the prosecution and defense objectives in a criminal trial to obtain convictions and acquittals, respectively.
Cisneros contends the prosecutor's argument was "largely indistinguishable" from the following rebuttal argument found to be misconduct in People v. Perry (1972) 7 Cal.3d 756 (Perry): "[U]nlike the prosecutor whose only function is to expose the truth, defense attorneys will often cross-examine a prosecution witness and try to impeach him even if the witness is known to be telling the truth." (Id. at p. 789.) The Perry court did not find that the quoted statement constituted prosecutorial misconduct; it found that certain argument following that statement was misconduct, namely, the prosecutor's assertion that defense counsel was acting in bad faith in challenging the sufficiency of a police report and his implication that defense counsel had improperly secured statements from a witness. (Id. at p. 790.)
The Perry court concluded that the defendant had not timely objected to the improper argument and that the argument was not prejudicial. (Perry, supra, 7 Cal.3d at pp. 790-791.)
In any event, the argument in Perry that Cisneros cites implied that defense attorneys seek to keep the truth from the jury by attempting to impeach witnesses who are testifying truthfully. The challenged argument here did not imply that defense counsel was trying to keep the truth from the jury; the prosecutor merely argued that defense attorneys generally fear that if the jury properly evaluates the evidence and follows the law (i.e., jury instructions), the result may be a conviction. This argument was not improper disparagement and, in the words of our Supreme Court, "even if the comments were unfair to defense counsel, they 'did not comprise a pattern of egregious misbehavior making the trial fundamentally unfair.' [Citation.] Nor was it reasonably possible they affected the verdict." (People v. Winbush (2017) 2 Cal.5th 402, 484.) The prosecutor did not prejudicially disparage defense counsel.
H. Suggesting the prosecution had information the jury did not have
As a separate assignment of error, Cisneros argues the prosecutor improperly suggested to the jury that she had information they did not have when she (1) vouched for Jane Doe and (2) told the jurors she was interested only in presenting the truth and having the jurors follow the law in contrast to defense counsel, who was afraid the jurors would apply the law to the truth presented by the prosecutor and find Cisneros guilty. Cisneros argues the net effect of these arguments was to suggest to the jurors that the prosecutor possessed evidence of guilt that was not presented to the jury.
As discussed above, we have rejected Cisneros's claim that the prosecutor improperly vouched for Jane Doe, based on our conclusion that the prosecutor did not suggest that facts outside the record supported her argument that Jane Doe spoke truthfully on the night of the incident. We have also rejected Cisneros's claim that the prosecutor essentially told the jurors she was interested only in presenting them with the truth, and we have concluded that her argument regarding the fears of prosecutors and defense attorneys in criminal trials was a reasonable description of their respective trial objectives. In any event, we fail to see how the prosecutor's argument about Jane Doe's credibility immediately after the incident or the respective trial concerns of the prosecution and defense suggested to the jury that the prosecutor was aware of evidence of guilt that was not presented at trial.
I. Prejudice
Cisneros contends he was prejudiced by the prosecutor's pattern of egregious misconduct. We reject this contention because we have concluded the prosecutor did not engage in prejudicial misconduct. We further conclude that to the extent any of the prosecutor's argument in question was error, it was not prejudicial. This case turned on whether the jury believed Jane Doe's statements to the 9-1-1 dispatcher and Buelna on the night of the incident, which were corroborated by the DNA evidence taken from Cisneros's hand, or whether the jury found her later statements and trial testimony recanting her initial incriminating statements sufficiently credible to create reasonable doubt. Jane Doe's credibility weeks after the night of the incident was highly suspect due to circumstances made known to the jury, namely, her mother's influence, the financial hardship caused by Cisneros's incarceration, and her feelings for Cisneros, who had been a father figure in her life. Considering the strength of the incriminating evidence and Jane Doe's lack of credibility at trial and in interviews that occurred substantially after the incident, we conclude it is not reasonably probable that Cisneros would have obtained a more favorable outcome at trial but for the alleged prosecutorial misconduct.
II. Effective Assistance of Counsel
Cisneros contends on appeal and in a related petition for habeas corpus that he was denied effective assistance of counsel and deprived of his Sixth Amendment rights when his trial counsel failed to object to the prosecutor's repeated misconduct during argument. Because we have rejected Cisneros's claims of prosecutorial misconduct on the merits, we necessarily reject his claim that his trial counsel provided ineffective assistance of counsel by failing to object to the alleged misconduct.
III. Warrantless Search of Person
Cisneros contends the court erred in denying his pretrial motion to suppress certain evidence obtained from a warrantless examination of his person performed by a forensic nurse after his arrest. Cisneros asked the court to exclude all of the evidence obtained from the examination. The prosecutor opposed the motion.
The court (Judge Fisher) granted the motion as to blood drawn from Cisneros and a urine sample taken from him, expressing concern that the blood and urine was taken as part of an overbroad examination protocol that was not tailored to the specific facts of the case. The court denied the motion as to the DNA swabbed from Cisneros's hands and the clear substance on his penis on the ground exigent circumstances justified the examination as to that evidence. In his reply brief, Cisneros concedes that swabbing his hands to obtain DNA was justified as a search incident to arrest. Consequently, the only unsuppressed evidence at issue in this appeal is the substance found on Cisneros's penis.
In reviewing a trial court's ruling on a motion to suppress evidence, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.) We review trial court error in admitting evidence in violation of the Fourth Amendment under the harmless error standard of Chapman v. California (1967) 386 U.S. 18. Under that standard, the error is reversible unless the reviewing court is convinced the error was harmless beyond a reasonable doubt. (People v. Matthews (2018) 21 Cal.App.5th 130, 141; People v. Howard (1987) 190 Cal.App.3d 41, 45-46; People v. Avila (1995) 35 Cal.App.4th 642, 654.)
Cisneros contends the motion should have been granted as to the substance on his penis because the warrantless search of his genital area was not permissible as a search incident to arrest, and was not justified by exigent circumstances. He argues that because there were no allegations that his genitals were involved in his contact with Jane Doe, the police had no reason to believe that examining him naked would produce evidence of his guilt or that evidence would dissipate or be destroyed if the police waited to get a warrant before searching his nude body.
The People observe that "[o]utside of the institutional-security context, it is an open question whether, and under what circumstances, an arrestee may be required to undergo a warrantless close visual inspection while undressed." They argue there was a reasonable basis for the police in this case to believe there might be evidence of Cisneros's crime on his body because Jane Doe said she thought she was being raped in her 9-1-1 call, and she could have believed Cisneros was penetrating her with his penis but was minimizing the contact "to cover for him from the very beginning . . . ."
The People also argue that if the court erred in denying Cisneros's suppression motion as to the evidence of the substance the nurse found on his penis, the error was harmless beyond a reasonable doubt. We agree. Assuming the strip search was unconstitutional and the nurse's testimony about the substance she found on Cisneros's penis should have been excluded, the error in admitting it was harmless in light of the fact the prosecution sought to prove only digital penetration. Although the prosecutor argued to the jury that "the thick, clear sticky substance show[ed] you he had sex on his mind when he was doing whatever he's doing[,]" the prosecution's case turned on Jane Doe's statements on the night of the incident that Cisneros digitally penetrated her and the DNA evidence taken from Cisneros's hand, which corroborated those statements. Evidence of the untested substance on Cisneros's penis hours after the incident was circumstantial evidence that he may have been sexually aroused at some point that night, but it added nothing substantial to the prosecution's case. Accordingly, we conclude that its admission was harmless beyond a reasonable doubt.
III. Cumulative Error
Cisneros contends that even he was not prejudiced by any of the alleged errors individually, their cumulative effect denied him a fair trial. Cisneros's cumulative error discussion includes his argument that the court erred in denying his motion in limine to exclude statements the forensic nurse obtained from when she examined him after his arrest before he was advised of his Miranda rights. Cisneros asked the court to exclude his responses to the nurse's questions about when he last had intercourse and whether he was left-handed or right-handed. The court concluded the nurse's questions did not violate Miranda and denied the motion. At trial the nurse testified that she "found out" Cisneros was right-handed and that he told her he last had sexual intercourse with his wife on October 14, 2013.
" 'Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. [Citation.] After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. [Citation.] Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present.' " (People v. Williams (2010) 49 Cal.4th 405, 425, quoting Maryland v. Shatzer (2010) 559 U.S. 98, 103-104.) --------
Cisneros states that he included his discussion of the alleged Miranda error in his cumulative error argument because he cannot in good faith argue that he was prejudiced by the alleged Miranda error alone. The People contend the nurse did not violate Miranda by asking Cisneros if he was right-handed, but assume the nurse, as an agent of law enforcement, violated Miranda when she asked Cisneros when he last had sex. However, the People argue Cisneros's statement to the nurse about his dominant hand was not prejudicial because the nurse swabbed both of his hands and Cisneros told the police after he was advised of his Miranda rights that he had not had sex with his wife that night.
We agree that the admission of Cisneros's statements to the forensic nurse was not prejudicial, and we conclude Cisneros was not prejudiced by cumulative error. " 'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." ' [Citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Mireles (2018) 21 Cal.App.5th 237, 249.)
The only possible errors we have identified were the admission of evidence of the forensic nurse's warrantless examination of Cisneros's genital area and the admission of Cisneros's responses to the nurse's questions. Because these were, at most, minor errors and neither was prejudicial, we conclude there was no cumulative effect warranting reversal. (People v. Mayfield (1993) 5 Cal.4th 142, 197 [three meritorious claims of error were insufficient to show a reasonable possibility defendant would have achieved a better result but for the errors]; People v. Johnson (1992) 3 Cal.4th 1183, 1255 [no cumulative error when only "minor errors" occurred at trial].)
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J. WE CONCUR:
AARON, J.
GUERRERO, J.