Opinion
F076284
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. LUIS FRANCISCO LOPEZ, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF297204)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Luis Francisco Lopez, a middle school employee, was convicted by jury of sexually abusing two minor students on the school's campus. Many witnesses testified during the trial, but Lopez did not.
On appeal, Lopez claims the prosecutor, during the trial's closing arguments, improperly commented on his constitutional right not to testify. We disagree. The judgment is affirmed.
BACKGROUND
The Tulare County District Attorney charged Lopez with 15 separate counts. The first eleven counts charged 11 separate Penal Code section 288, subdivision (c)(1) violations against victim one. The last four counts charged four separate section 288, subdivision (a) violations against victim two. Three of the four counts involving victim two included an allegation of substantial sexual misconduct pursuant to section 1203.066, subdivision (a)(8).
Unlabeled statutory references are to the Penal Code.
The special allegation renders a defendant ineligible for probation.
Trial Evidence
Lopez was a "campus supervisor." "When a student would get in trouble, one of [Lopez's] tasks was to go to their classroom or where they were at and bring them to the office." Lopez perverted this authority to abuse victim one during school.
The first victim testified she and Lopez developed a friendly relationship during school as he would chat with her and her friends during lunch. Eventually, Lopez expressed a sexual interest to the victim. His expression turned physical when he began taking the victim out of class as a ruse and into a separate locked room on campus.
Once inside the separate room, Lopez orchestrated various sex acts with the victim. This occurred several times while the victim was a student at the middle school.
The abuse happened one last time when the victim was a high school student. On that final incident, the victim was walking through the middle school campus on the way home when Lopez saw her and took her into a nearby classroom. His abuse abruptly ended when the victim refused to engage in sexual intercourse.
A few days later, Lopez abused a second student. The second victim testified Lopez took her to the office for an unrelated investigation. She was placed in the nurse's office with Lopez. While they were alone in the nurse's office, Lopez touched her inappropriately four times.
Neither victim immediately reported the offenses. In fact, victim one never reported the abuse. Victim one's friend reported the offenses, leading to Lopez's arrest. Victim two reported her abuse after Lopez was arrested and hearing a teacher comment "he'll probably get out, he didn't do it." Hearing he would be released prompted victim two to "cr[y] her eyes out," and she immediately went to the office and "told them what had happened."
During the investigation, law enforcement conducted many interviews with the victims and other witnesses. These interviews generated many audio recordings, but only one recording was introduced as evidence in the trial.
The prosecutor also introduced some school records to corroborate the first victim's testimony. The principal testified the records relating to the room in which Lopez abused the victim appeared incomplete.
Arguments
Defense counsel argued the victims were not credible. Counsel specifically highlighted the lack of certain corroborating evidence. Counsel argued victim two's claim that "she cried when she heard [Lopez] was getting out" was not corroborated by any witness.
In reference to the sole recorded interview in evidence, counsel argued "evidence should be robust and should be complete, and we should have candor. There's all these tapes. It's the only one that you got."
Finally, counsel questioned the incomplete school records. The lack of complete records left victim one's testimony "unsubstantiated."
In response, the prosecutor rebutted, "We've got two sides of a coin, and the defense is arguing both. The People failed to put on this evidence. The People failed to call this witness.
"I have the burden of proof here. It is my job to prove to you beyond a reasonable doubt every element of that crime, but that does not prevent the defense from bringing in witnesses or putting on evidence."
Defense counsel twice objected to this argument. The objections were overruled.
Verdict and Sentence
Lopez was convicted as charged. The substantial sexual misconduct allegations were found true. Lopez was sentenced to serve 12 years in prison.
Although neither party raises the issue, our review discloses a clerical error in the abstract of judgment. Count 15 did not include an allegation of a violation of section 1203.066. The error does not impact the judgment but we nonetheless order its correction in the disposition, post. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [power to correct clerical errors in abstract of judgment].) --------
DISCUSSION
Lopez claims the prosecutor's argument "infringed on [his] right to remain silent and amounted to prejudicial error" by commenting "that [Lopez] failed to bring in any witnesses or put on any evidence despite the fact that the only logical source for such evidence would have been [Lopez's] ... testimony." We find no error.
Griffin v. California (1965) 380 U.S. 609 (Griffin) "held that 'the prosecution may not comment upon a defendant's failure to testify on his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses.' " (People v. Gomez (2018) 6 Cal.5th 243, 299 (Gomez).) " '[A] prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.' " (Ibid.)
No such error occurred in this case. The prosecutor never argued "certain testimony or evidence is uncontradicted ...." (Gomez, supra, 6 Cal.5th at p. 299.) Nor did the prosecutor's comments imply Lopez's silence " '[w]as substantive evidence of guilt.' " (United States v. Robinson (1988) 485 U.S. 25, 32 (Robinson).)
On the contrary, the prosecutor argued nothing "prevent[ed] the defense from bringing in witnesses or putting on evidence." No one could reasonably interpret either "bringing in witnesses," or "putting on evidence" to mean Lopez's testimony. Indeed, "bringing in witnesses" necessarily means witnesses other than Lopez who is a single witness and not brought in to testify—he is already present in the courtroom during trial.
While Lopez contends on appeal "the only person who could have presented such evidence was" himself, he is mistaken. Because the defense argument was made in connection to victim two crying upon hearing a teacher opine Lopez would "probably get out," the prosecutor's response is best understood in that context.
A potential witness the defense could "bring[] in" to testify to impeach victim two would be the teacher who made the comment, anyone else present during the comment, or the person or persons to who victim two immediately reported the incident. If that person did not remember victim two crying, or denied making the statement, or knew victim two did not cry, then that witness's testimony would potentially impeach the victim's testimony.
The prosecutor further distinguished witnesses from "putting on evidence." In this context, "evidence" meant something other than testimony. For example, nothing prevented Lopez from introducing the complete school records or other audio recordings if he so chose. Such an argument is an appropriate response to defense counsel's argument impugning the prosecution's presentation.
In sum, "the prosecutor's comments were framed in terms of [Lopez's ability] to call some person other than [himself] who would testify," including his ability to introduce audio recordings and documents into evidence. (People v. Thomas (2012) 54 Cal.4th 908, 945.) "The prosecutor's argument [did not] refer to the absence of evidence that only [Lopez's] testimony could provide." (People v. Brady (2010) 50 Cal.4th 547, 565-566.) There was simply no "suggesti[on] to the jury that it may treat [Lopez's] silence as substantive evidence of guilt." (Robinson, supra, 485 U.S. at p. 32.) Accordingly, we find no error.
DISPOSITION
The judgment is affirmed. The matter is remanded with directions to correct the abstract of judgment by removing the allegation of a violation of section 1203.066 attached to count 15. The trial court shall forward the corrected abstract of judgment to all appropriate parties.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
DE SANTOS, J.