Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. County Super. Ct. No. BA 293187 Barbara R. Johnson, Judge.
Tara Selver, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Moises Tomas Valera was convicted of committing multiple sex crimes against a minor, E.J. Valera appeals, arguing that the trial court erroneously admitted the opinion of a lay witness concerning the victim’s credibility and that the prosecutor committed misconduct in her closing argument. We agree. The evidentiary error and misconduct were, in combination, sufficiently prejudicial to warrant reversal of Valera’s conviction.
BACKGROUND
The amended information charged Valera with one count of lewd conduct upon a child in violation of Penal Code section 288, subdivision (a), (count 1); eight counts of forcible oral copulation in violation of section 288a, subdivision (c), (counts 2-9); one count of forcible rape in violation of section 261, subdivision (a)(2), (count 10); one count of continuous sexual abuse in violation of section 288.5 (count 11); two counts of lewd conduct upon a child, with a special allegation that Valera was at least 10 years older than the victim, in violation of section 288, subdivision (c)(1) (counts 12-13); and one count of aggravated sexual assault of a child in violation of section 269, subdivision (a)(1) (count 14).
All subsequent statutory references are to the Penal Code.
A jury acquitted Valera on six counts of forcible oral copulation (counts 4-9) but convicted him on all other counts. The trial court sentenced Valera to 15 years to life on count 14, plus the midterm of 6 years in state prison on count 1, plus 2 years in state prison (i.e., one-third of the midterm) on each of counts 2 and 3, plus 8 months in state prison (i.e., one-third of the midterm) on each of counts 12 and 13, all to run consecutively, for a total sentence of 15 years to life plus 11 years and 4 months in state prison. The court also sentenced Valera to the midterm of 6 years on count 10 but stayed the sentence pursuant to section 654, and the court dismissed count 11. The court credited Valera with 460 days of presentence custody. And the court imposed a restitution fine of $300, a victim restitution award of $1,000, and a parole revocation fine of $300, the last of which was stayed.
At trial, the victim, E.J., testified that in 1996, when she was 11 years old, her father arranged for her to leave her home in a small village in Oaxaca, Mexico, and come to Los Angeles to live in the apartment shared by Valera, his wife (Gisilia), their young child, and several members of their extended family. In addition to E.J.’s testimony concerning her age, the prosecution introduced a Mexican birth certificate stating that she was born in 1985.
E.J. testified that at Valera’s apartment she slept on the floor in a closet and was forced to clean the apartment, cook for Valera’s family, and take care of Valera’s child. E.J. testified that because she speaks a Oaxacan dialect she was unable to communicate with, and in fact did not speak with, anyone in the apartment; she has learned some Spanish only in the last few years. When E.J. was roughly 13 years old, Valera, his family, and E.J. moved from the apartment to a house. At the house, E.J. shared a bedroom with Ana (a cousin of Gisilia’s), but E.J. slept on the floor and Ana slept in a bed.
This testimony appears to be inconsistent with E.J.’s further testimony that, for example, Gisilia told E.J. to clean the apartment, take care of the child, and be sure to have the apartment clean when she got home from work, and that at age 12, E.J. herself complained to Gisilia about Valera’s inappropriate touching. Valera and Gisilia are also from Oaxaca.
According to E.J., Valera first touched her sexually when she was “almost 12.” On that occasion, he began by touching her breasts and vagina under her clothes with his hands, and he also kissed her on the mouth. While holding both of her hands in one of his, he removed her blouse and underwear and his pants, got on top of her, and rubbed his penis on top of her vagina until he ejaculated. A few days later, he did the same thing and also tried to put his penis inside her vagina, but she pushed him away.
E.J. testified that, when they were living at the house, Valera touched her body “every time he had the opportunity.” She said that he forced her to orally copulate him no fewer than 10 times when she was 12, no fewer than 10 times and “perhaps” more than 20 times when she was 13, and no fewer than 10 times and “perhaps” more than 20 times when she was 14. She also testified that on more than two occasions when she was 14, he forced her to have sexual intercourse with him.
E.J. testified that she learned she was pregnant just a few days before she gave birth. On June 2, 2000, at age 15, E.J. delivered her baby girl herself on the bathroom floor at Valera’s house. The defense stipulated that Valera has taken a DNA paternity test according to which there is a 99.6 percent probability that Valera is the father of E.J.’s daughter.
Valera and Gisilia were in Oaxaca when E.J. gave birth. Soon thereafter, E.J. and her daughter moved to an apartment of their own, for which Valera initially paid the rent. Valera visited weekly for about the first year but then stopped. Later, Valera filed suit against E.J. She testified that she did not know why he sued her, but Valera testified that he sued to obtain joint custody of their daughter.
E.J. told the lawyer who represented her in the custody dispute “about everything that had happened with [her].” The lawyer, Jimena Vasquez, encouraged E.J. to make a report to the police, and this prosecution is the result.
Vasquez testified for the prosecution. Toward the end of direct examination, the prosecution asked her, “At any time did you feel that [E.J.] was not credible?” The defense objected, “Calls for a conclusion. Lack of foundation.” The court overruled the objection, and Vasquez answered, “No. I think she’s very honest.”
The prosecution also called detective William Sera as a witness. Sera had interviewed E.J. and arrested and interviewed Valera. In his interview with Sera, Valera admitted he had sex with E.J. but said he did not know how old she was and did not know she was a minor. Sera testified that in the course of the interview Valera never said “that there was any consensual part” of his relationship with E.J. Sera did not, however, clarify whether the issue of alleged lack of consent was mentioned or addressed in the interview at all.
Valera and members of his family who had lived in the apartment and the house testified to a version of events that was very different from E.J.’s. According to Gisilia and the wife of one of her cousins (Marciana), E.J. did not cook, clean, take care of Valera’s child, or sleep in a closet. And according to Ana, E.J. followed Valera around the house and flirted with him “all the time.” Valera too testified that E.J. flirted with him, and he testified that when he and E.J. had sexual intercourse it was consensual. For her part, Gisilia testified that she never saw E.J. flirt with Valera. Gisilia further testified that after she learned that E.J. had given birth, she spoke to her in person about the nature of her contact with Valera: “I asked what had happened. I asked her why did you do this to me? All she did was bend her head and I asked her tell me the truth. Tell me the truth. Did he force you? Tell me, because at this very moment I’m going to call the police. I’ll call the police. She bent her head and she said no.” The defense also introduced both a baptismal certificate indicating that E.J. was three years older than she claimed and testimony indicating that her birth certificate was inaccurate.
DISCUSSION
I. Evidentiary Error
Valera argues that the trial court abused its discretion when it overruled his objection to the question “At any time did you feel that [E.J.] was not credible?” thereby allowing Vasquez to answer, “No. I think she’s very honest.” We agree.
At the threshold, respondent argues that Valera waived the issue because defense counsel’s objection—“Calls for a conclusion. Lack of foundation.”—was insufficient to preserve it. Respondent cites People v. Coffman and Marlow (2004) 34 Cal.4th 1, for the proposition that a foundation objection is inadequate to preserve a claim that a witness offered an impermissible opinion as to the credibility of another witness. We disagree with respondent’s reading of Coffman and Marlow, and we conclude that defense counsel’s objection was adequate to preserve the issue in this case. The relevant portion of Coffman and Marlow dealt with a witness who had been qualified as an expert. (34 Cal.4th at pp. 81-82.) That case is therefore distinguishable, because Vasquez was not an expert witness. The Supreme Court has explained that a lay opinion concerning credibility “does not constitute properly founded character or reputation evidence[.]” (People v. Melton (1988) 44 Cal.3d 713, 744.) Defense counsel therefore preserved the issue by raising a foundation objection.
Respondent next contends that the trial court did not err in overruling the defense objection, because the prosecution “was merely attempting to ascertain whether [E.J.] said or did anything to cause Vasquez to question her credibility.” We disagree with respondent’s suggestion that the prosecution’s question sought only information about Vasquez’s observations of E.J.’s conduct. The prosecution asked Vasquez, “At any time did you feel that [E.J.] was not credible?” That question sought Vasquez’s lay opinion (i.e., how Vasquez “feel[s]”) about E.J.’s credibility. Respondent does not contend that such an opinion is admissible. It is not. (People v. Melton, supra, 44 Cal.3d at pp. 743-744.) We therefore agree with Valera that the trial court abused its discretion.
II. Prosecutorial Misconduct
Valera argues that the prosecutor committed misconduct in her closing argument by deliberately misleading the jury concerning facts outside the record. We agree.
In her closing argument, the prosecutor argued that Valera had fabricated his consent defense at trial. She told the jury: “[T]here’s no evidence that you have seen other than conjecture and questioning that anything was consensual. As a matter of fact, when the defendant had an opportunity to speak to Detective Sera back in November of 2005, he had the opportunity to say it was consensual right then, but he hadn’t spoken to Mr. Schwartz [i.e., defense counsel] yet so he didn’t know that consent was a good defense yet. . . . So consent only became an issue during this trial when he realized what an important aspect consent would be to those other counts. [¶] . . . [¶] . . . There has not been any evidence that suggests that [E.J.] consented in any way other than defendant’s now contrived statement that he came up with yesterday on the stand.” The defense objected to this line of argument, but the court overruled the objection.
The prosecutor later returned to this theme of Valera’s allegedly recent fabrication of the consent defense, as evidenced by his failure to mention consent to Sera. Referring to Valera’s statements to Sera, she argued: “[H]e did not mention anything about consent in there. And if it was a consensual relationship and you had a love affair or a flirtatiousness, don’t you think that would be something you would want to mention to the police when they’re arresting you?” She then proceeded to discuss some of Valera’s specific statements to Sera, which she introduced by saying “Let’s look at the defendant’s own statements, the things that came out of his mouth before he was prepared for trial, before we were in court.” Thus, a central component of the prosecutor’s attack on Valera’s credibility was her argument that he started claiming his sexual contact with E.J. was consensual only when this criminal prosecution compelled him to come up with a defense.
Valera argues that the prosecutor’s argument constituted misconduct because in the civil trial concerning custody of Valera and E.J.’s daughter, which took place in August 2005, Valera testified that all of his sexual contact with E.J. was consensual. Thus, Valera had given sworn testimony supporting his consent defense before he was ever contacted by Sera in November 2005 and long before there was even a preliminary hearing in this case. Moreover, the prosecutor knew all of this, because she made use of certain portions of the transcript of the civil trial during cross-examination. The transcript was never admitted into evidence, however, so the jury had no way of determining that the prosecutor’s contention—that Valera’s consent defense was something “that he came up with yesterday on the stand”—was false.
We conclude that Valera’s argument is sound. “A prosecutor’s ‘vigorous’ presentation of facts favorable to his or her side ‘does not excuse either deliberate or mistaken misstatements of fact.’” (People v. Hill (1998) 17 Cal.4th 800, 823, quoting People v. Purvis (1963) 60 Cal.2d 323, 343.) Reference to “matter outside the record” is also “clearly . . . misconduct.” (People v. Pinholster (1992) 1 Cal.4th 865, 948.) “[S]uch statements ‘tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” [Citations.]’” (People v. Hill, supra, 17 Cal.4th at p. 828, quoting People v. Bolton (1979) 23 Cal.3d 208, 213.) “Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 576, p. 824.)
The prosecutor in this case committed misconduct by both deliberately misstating facts and referring to facts not in evidence. The prosecutor told the jury that Valera’s consent defense was something “that he came up with yesterday on the stand,” but the prosecutor knew that was not true—Valera had given testimony supporting his consent defense before this prosecution began. The prosecutor supported her false claim by suggesting that Valera did not come up with his consent defense until after Sera interviewed him, but that too was not true—Valera’s testimony in the civil suit preceded his interview with Sera. All of this involved implicit reference to matters outside the record—the jury was likely to infer that Valera had not previously said his sexual contact with E.J. was consensual, because otherwise the prosecutor would not be claiming that he made it up “yesterday on the stand.” And there was nothing in the record that the jury (or defense counsel) could look to in order to counteract the prosecutor’s false statements, because the transcript of the civil trial had not been admitted.
Respondent’s argument to the contrary boils down to a single sentence: “Although the prosecutor may have been off as to the timing of when appellant first ‘contrived’ the defense (i.e. appellant came to the realization during the civil custody matter that he would benefit by asserting that the sexual activity was consensual), no misconduct occurred because the gist of the prosecutor’s argument was fair.” The argument fails for three reasons.
First, the prosecutor was not merely “off as to the timing.” Defense counsel objected after the prosecutor first argued that Valera “contrived” his consent defense “yesterday on the stand.” At sidebar, defense counsel explained to the court that the prosecutor “was in possession of the transcript of the civil trial” and that “[i]t is improper for her to represent that [Valera] never before said that the act was consensual when in fact he testified last year that it was consensual.” The court overruled the defense objection and denied the defense’s motion for mistrial. The court then instructed the jury that “closing argument is argument” and that the jury should rely on its own recollection of the evidence “if either counsel misstates,” and the court stated that, during closing argument, “generally for objections or misstatements of the facts as you heard them, I do not sustain objections for either one.” Having thus been given a free hand by the court, the prosecutor thereafter continued to return to her false theme that Valera had said nothing about consent “before he was prepared for trial, before we were in court.” That is not merely being “off as to the timing.” Even after being reminded of the timing, the prosecutor continued to falsely suggest to the jury that Valera had contrived his consent defense for purposes of this case.
Second, we do not agree that “the gist of the prosecutor’s argument was fair.” The prosecutor argued that Valera had invented his consent defense at the eleventh hour in order to avoid (or minimize) criminal liability. In fact, Valera had testified that the acts were consensual before he knew he was threatened with criminal liability. If the prosecutor had thought it would have been equally persuasive to argue that Valera invented his consent defense in order to gain an advantage in the civil suit, she could have presented that argument to the jury. But we see nothing “fair” in the prosecutor’s deliberately misleading the jury on this point and then claiming after the fact that her argument would have been just as strong if she had told the truth.
Third, respondent does not dispute that the prosecutor deliberately misstated facts and referred to facts not in evidence. That is misconduct under the authorities cited ante. Respondent cites no authorities to the contrary.
For all of these reasons, we agree with Valera that the prosecutor committed misconduct.
Valera also argues that the prosecutor committed misconduct in several other ways. Respondent argues that these other misconduct claims were not properly preserved at trial and also that they fail on the merits. We need not address these issues, because we conclude that the evidentiary error and the misconduct we have already identified are, in combination, sufficient to warrant reversal.
III. Prejudice
Valera argues that, taken together, the evidentiary error and the prosecutorial misconduct were sufficiently prejudicial to warrant reversal. Under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, which respondent urges us to apply, we conclude that it is reasonably probable that a result more favorable to Valera would have been reached in the absence of the errors.
On the disputed facts concerning Valera’s sexual contact with E.J., including the issue of consent, the case boiled down to a credibility contest between E.J. and Valera. The defense evidence came entirely from Valera and members of his extended family, and the prosecutor predictably attacked their credibility on the basis of familial bias. In this context, it is reasonably probable that the jury accorded significant weight to the erroneously admitted opinion of Vasquez—a third party and an attorney who does pro bono family law work (she testified that she has been working for Break the Cycle for two years)—concerning E.J.’s credibility. At the same time, it is reasonably probable that the jury accorded significant weight to the prosecutor’s repeated argument that if the sexual contact between Valera and E.J. had been consensual, Valera would have said something about it some time before he took the stand in this case. Unbeknownst to the jury, he had.
Valera’s admissions were not sufficient to convict him on any of the charges or on any lesser included offenses, and he introduced evidence that would support acquittal. Valera admitted having sexual intercourse with E.J. as early as January 1999. He denied ever engaging in oral copulation with her. He introduced evidence (i.e., a baptismal certificate) that she turned 17 in January 1999, and he testified that she “didn’t look like a minor” and that he believed she was 18 or 19. Thus, although Valera admitted to the elements of unlawful sexual intercourse in violation of section 261.5, subdivision (a) (which is a lesser included offense under count 14), his testimony that E.J. appeared not to be a minor and that he believed she was 18 or 19, if believed, would provide a defense. (People v. Hernandez (1964) 61 Cal.2d 529, 530.) He did not admit to the elements of any other charge or lesser included offense.
The testimony of Valera’s family members was generally consistent and coherent. Marciana testified that, at Valera’s apartment, she cooked for her own family, and Gisilia cooked for hers. Marciana also did half the cleaning, took care of her own child, and took care of Valera’s child when Gisilia worked outside the home. Marciana testified that she never saw E.J. do any cooking or cleaning and that E.J. never slept on the floor or in a closet but rather slept in a bed in the living room. Gisilia too testified that at the apartment she took care of her own child and cooked and cleaned for her own family, that Marciana took care of Marciana’s child, that E.J. did not do any cooking or cleaning or childcare, and that E.J. slept in a bed in the living room. Ana’s testimony about life at the house was similar: She never saw E.J. cook for the family (E.J. cooked “only for herself”), clean, or take care of Valera’s child. Even Gisilia’s testimony that she never saw E.J. flirt with Valera was not inconsistent with Ana’s testimony that E.J. flirted with him “all the time,” because (1) beginning in September 1998 Ana was at the house only two days per week as a result of her job, and (2) E.J. may not have flirted with Valera when Gisilia was present.
In contrast, E.J.’s testimony was uncorroborated (the other prosecution witnesses could testify only to what E.J. and Valera had told them) and was not even internally consistent. For example, she testified that because of her Oaxacan dialect she was unable to communicate with, and did not in fact speak with, any members of the Valera household. But on the same page of the transcript of her direct examination she testified that Gisilia told her to clean the apartment, take care of Gisilia’s child, and be sure to have the apartment clean when she got home from work. (E.J. testified that Gisilia worked outside the home “every day”; Gisilia testified that she worked only twice a week.) E.J. later testified that at age 12 she told Gisilia about Valera’s inappropriate touching, again without explaining how she could have told Gisilia anything given that she did not and could not speak with anyone in the home. In addition to such internal inconsistencies, E.J.’s testimony was implausible on its face at certain points. For example, in explaining why she had never reported Valera’s alleged abuse while it was taking place, she testified that she did not know how to use or even answer a telephone, and that until she spoke to an attorney in or about 2005 she thought it was legal for Valera to force her to have sex with him.
We do not mean to suggest that the record reveals Valera to be wholly credible or E.J. to be not at all credible, and we recognize that the portions of the testimony we have highlighted do not themselves go directly to the crucial issues of E.J.’s age and consent. The point is that E.J.’s testimony on its own was not unproblematic, and Valera’s version of the facts had considerable evidentiary support. In this context, it is reasonably probable that the combination of a third-party witness’s improper vouching for E.J. and the prosecutor’s improper argument concerning Valera’s credibility brought about a more unfavorable result than the defense would otherwise have obtained.
We have reviewed the entire record and considered the prosecution and defense evidence in detail (including Gisilia’s testimony that E.J., when asked whether Valera forced her, “bent her head and she said no”). We conclude that it is reasonably probable that Valera would have obtained a more favorable result in the absence of the evidentiary error and prosecutorial misconduct.
DISPOSITION
The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a), the clerk of this court is directed to send a certified copy of this opinion to the State Bar.
We concur: MALLANO, Acting P. J. VOGEL, J.