Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Ct. No. BA337665, Sam Ohta, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
A jury convicted appellant Jose Bonilla of corporal injury in violation of Penal Code section 273.5, subdivision (a); assault with intent to commit a felony in violation of Penal Code section 220, subdivision (a); criminal threats in violation of Penal Code section 422; and dissuading a witness in violation of Penal Code section 136.1, subdivision (c)(1).
Appellant appeals the corporal injury conviction for lack of sufficient evidence. He further appeals the entire judgment because he contends the prosecutor committed prejudicial misconduct by making improper comments during closing argument. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
I. Factual Background
A. Prosecution Evidence
1. December 7, 2007
Appellant and Flor R. had two children together, seven-year-old Stephanie and four-year-old Christopher, and lived in a one-bedroom apartment in Los Angeles. Flor testified, through a Spanish interpreter, that on the night of December 6, 2007, she and the children were without a mattress and were sleeping on the floor of the apartment.
Appellant arrived at the apartment at approximately 1:00 a.m. on December 7, 2007, appearing drunk and angry. He told Flor he had the right to have sex with her because he was her “man, ” but Flor told him she did not want to be with him. Appellant then began forcibly removing her clothes, tearing her panties “to pieces, ” and injuring the skin on her hip in the process. Despite her telling him “no” and “stop, ” he penetrated her and had intercourse with her for about 10 to 15 minutes, stopping without ejaculating. He then fell asleep.
At 3:00 a.m., Flor got up to get ready to go to work. That day, she did not call the police or tell anyone she had been raped, but she did show a coworker the “burn” mark appellant had left on her hip. After she returned from work, she told appellant she did not want to be with him anymore. Appellant moved out of the apartment, but kept the key.
2. December 18, 2007
In the early morning of December 18, 2007, while Flor was sleeping next to the children, appellant entered the apartment. He was very angry and said he heard Flor had been fooling around. He told Flor he was going to have sex with her, including anal sex, and tried to take off her panties. Flor struggled with appellant as he pushed her down, and told him to stop because their daughter had awakened. Appellant lifted up Flor’s legs and tried to have sex with her. Stephanie, the seven-year-old daughter, screamed, “Daddy, don’t do that.”
Appellant pulled Flor by her feet and her hand toward the living room couch. He threw her on the couch and tried to get on top of her, but she kicked him in the testicles. He ran into the kitchen and said he was going to get a knife to cut himself and Flor, and blame her for their injuries. While he was in the kitchen, Flor dialed 911. Appellant then ran back into the living room and tore the phone cord out of the wall. Appellant asked her why she called the police and, as he was running out of the apartment, said to her that one day he would get out of jail, but she would not get out of the cemetery, and that he was going to kill her. Flor was scared by the statement.
After appellant left, Flor called 911 from her brother’s upstairs apartment. The police arrived and Flor told them what happened. They took pictures of her, including of the injury to her hip.
B. Defense Evidence
Appellant testified on his own behalf, through an interpreter. He told the jury that he and Flor had separated in November 2007. Flor thought appellant had been unfaithful to her and she threw out the family’s mattress because she thought appellant had slept there with his lover. Appellant moved in with his uncle and saw Flor two or three times in November.
On December 7, 2007, appellant called Flor to tell her he would be coming over to pick up tax documents. When he arrived, Flor told him they should get back together, but appellant refused. Appellant said he did not touch Flor that night and left without incident.
Appellant returned to the apartment on December 18 to give Flor some car keys. When he entered the apartment, Flor and the children were sleeping on the floor. Flor told appellant to stay, but he refused. Flor accused him of being unfaithful, he told her she was crazy, and she pushed and kicked him. Flor also yelled for Stephanie, who woke up.
Appellant told Flor they should sit and talk, and he told Flor they could not live together because their “relationship was no good.” As appellant stood up to leave, Flor grabbed him to stay, and when he pulled away she kicked him in the testicles and cut him with her fingernails. Flor also ripped the telephone cord out of the wall and threw the telephone at appellant. As he was leaving, Flor told Stephanie to call the police. Appellant denied pulling the phone out of the wall himself and denied telling Flor he wanted to have sex with her.
Appellant said he went back to the apartment a week later, around 11:00 p.m. on Christmas Eve. When he arrived, his son was out in the street and his daughter was in the hallway. He confronted Flor, asking her why the children were outside. Flor told him if he would not be with her he was no longer considered family, that the children were none of his business, and that he should go. He gathered the children and brought them inside. Flor’s brother came and confronted appellant, and appellant left.
II. Procedural Summary
On May 14, 2008, appellant was charged with the following felony offenses: count 1—forcible rape in violation of Penal Code section 261, subdivision (a); count 2—corporal injury to a cohabitant or parent of the defendant’s child in violation of Penal Code section 273.5, subdivision (a); count 3—assault with intent to commit a felony in violation of Penal Code section 220, subdivision (a); count 4—criminal threats in violation of Penal Code section 422; count 5—dissuading a witness in violation of Penal Code section 136.1, subdivision (c)(1); and count 6—child abuse in violation of Penal Code section 273a, subdivision (a). Counts 1 through 2 were charged as being based on December 7, 2007 events, while counts 3-6 were charged as being based on December 18, 2007 events.
Count 6 was dismissed following appellant’s motion to dismiss pursuant to Penal Code section 995. Trial was by jury. The jury declared itself deadlocked as to count 1, but reached verdicts on the remaining counts. Appellant was found guilty as charged on counts 2 through 5. The trial court declared a mistrial on count 1, and the count was dismissed pursuant to Penal Code section 1382 on January 7, 2009.
On April 22, 2009, appellant was sentenced to the upper term of six years for count 3, concurrent terms of three years for counts 2 and 5, and a concurrent term of two years for count 4, making the aggregate term of imprisonment six years. Appellant filed a timely notice of appeal.
DISCUSSION
I. Substantial evidence supports appellant’s conviction for corporal injury of a cohabitant or parent of child.
Appellant contends that count 2, the only count relating to the events of December 7 for which he was convicted, lacks evidence sufficient to sustain his conviction. Penal Code section 273.5, subdivision (a), provides that a person who willfully inflicts “corporal injury resulting in a traumatic condition” on (among others) a cohabitant or mother of the person’s child, is guilty of a felony. “Traumatic condition” is defined as “a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature.” (Pen. Code, § 273.5, subd. (c).)
Appellant does not contend that there was no traumatic condition. Instead, appellant contends that the corporal injury could not have occurred on December 7, because the injury was “fresh” on December 18. The corporal injury was charged by the prosecution to have occurred on December 7 but, according to appellant, there was no substantial evidence that it actually occurred on December 7.
Appellant relies on the following trial testimony. Flor testified that after appellant arrived at the apartment on December 7, he tried taking off her underwear by force, and in the process of ripping off her underwear “he made the cut that I have here” on the hip. She testified that she did not call the police, but the next day showed a coworker the “burn” mark appellant had left on her hip. Flor also testified that she told the police officers on December 18 about all events that had occurred on December 7, including the rape. She said the injury had healed by December 18. Officer Piro, who responded to Flor’s December 18 call, testified at trial that she did not say anything to him about the December 7 rape. He said that on December 18 he saw the injury on her hip, and “[i]t was still pretty bright” and there “was still blood at the surface but not bleeding.” According to appellant, based on the inconsistent testimony, no rational jury could have found beyond a reasonable doubt that Flor’s injury was suffered on December 7.
In reviewing a challenge of the sufficiency of evidence, we “consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our function is to determine if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Marshall (1997) 15 Cal.4th 1, 34.)
We do not independently judge a witness’s credibility. “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
With these principles in mind, we find there was substantial evidence to convict appellant of corporal injury. The evidence did not eliminate the possibility that the victim’s traumatic condition was inflicted on December 7, nor did the testimony make such a conclusion physically impossible or inherently improbable.
One inconsistency identified by appellant was that Flor testified she told the police officers on December 18 that she was raped on December 7, while Officer Piro testified she did not mention a December 7 rape. Whether the issue of rape was discussed on December 18, however, had no bearing on whether the corporal injury was inflicted on December 7. Further, the eventual dismissal of the rape count does not compel a reversal of the corporal injury conviction. It is well established that “‘“[t]he disposition of one count [has] no bearing upon the verdict with respect to other counts, regardless of what the evidence may have been. Each count must stand upon its own merit.”’” (People v. Amick (1942) 20 Cal.2d 247, 251.)
Another inconsistency identified by appellant was that Flor testified that the injury had healed by December 18, while Officer Piro testified it was still bright and there was still blood at the surface. Again, this does not mean that the injury did not occur on December 7, and a reasonable deduction from the evidence presented was that the injury actually did occur on December 7. The injury may have improved to the point that Flor considered it “healed” on December 18. Contrary to appellant’s assertions, Officer Piro did not testify that the injury was “fresh” on December 18, and appellant provided no evidence that an injury inflicted 11 days prior could not still be bright or have blood at the surface. Furthermore, even if the injury had appeared fresh on December 18, the injury could have been re-aggravated that day.
The jury, as the judge of credibility, was entitled to believe Flor’s testimony that the corporal injury occurred on December 7. The subject matter of that testimony was not impossible or inherently improbable, and it is not for this court to reevaluate her credibility. Since a rational juror could have found beyond a reasonable doubt that appellant was guilty of the corporal injury charged, we will not reverse appellant’s conviction on this count.
II. The prosecutor’s comments did not constitute misconduct.
Appellant argues that a number of comments made by the prosecutor in his closing rebuttal argument crossed the line of permissibility into the realm of prosecutorial misconduct. As explained below, we disagree.
A prosecutor is given wide latitude to discuss the evidence in a case, and the inferences that may be drawn from it. (People v. Lucas (1995) 12 Cal.4th 415, 473.) “Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury.” (People v. Dennis (1998) 17 Cal.4th 468, 522). When conduct does not result in the denial of a defendant’s specific constitutional rights, but is still worthy of condemnation, there is “not a constitutional violation unless the challenged action ‘“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”’” (People v. Riggs (2008) 44 Cal.4th 248, 298.) Furthermore, when a claim is made that a prosecutor acted improperly, we do not view the prosecutor’s comments individually and out of context, but “must view the statements in the context of the argument as a whole.” (People v. Dennis, supra, 17 Cal.4th at p. 522.)
A. Comment about a nonexistent taped confession
Appellant first takes issue with the following comment from the prosecutor’s closing rebuttal argument: “Sure you would like a video, a taped confession. That would be great. That would be easy for me. I wouldn’t have to argue that long.” The defense’s objection to this statement was overruled by the trial court. On appeal, appellant argues that this comment violated his constitutional Fifth Amendment rights because the “comment surely led the jury to speculate on why appellant did not provide a statement to law enforcement upon his arrest.” This argument is unconvincing.
Looking at the context in which the comment occurred, the prosecutor was responding to defense counsel’s argument that if the jury “wanted more evidence, ” that meant there was reasonable doubt. The lack of a statement by appellant to law enforcement following his arrest was not an issue in either the prosecutor’s or the defense’s closing argument. Instead, the prosecutor argued that his job would be easier if there were a taped confession, which would be “more evidence, ” but that there was still enough evidence to find the defendant guilty beyond a reasonable doubt anyway.
“[W]e ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.) There is no reason to infer that the jury drew any improper meaning from the prosecutor’s comment, and certainly no reason to assume that it led the jury to think about whether appellant had provided a postarrest statement to law enforcement. While a prosecutor’s comment regarding a defendant’s failure to testify may constitute prejudicial misconduct (Griffin v. California (1965) 380 U.S. 609), lack of testimony was not an issue in this case, as appellant testified on his own behalf. The prosecutor’s comment was well within the bounds of proper argument, and not a ground for reversal of appellant’s conviction.
B. Comments that witnesses did not lie
Appellant also argues that the prosecutor improperly vouched for the credibility of Flor, Stephanie, and Officer Piro, all of whom testified at trial. “[A] prosecutor may not express a personal opinion or belief in a witness’s credibility when there is ‘“substantial danger that jurors will interpret this as being based on information at the prosecutor’s command, other than evidence adduced at trial.’” [Citation.]” (People v. Fauber (1992) 2 Cal.4th 792, 822.) Impermissible “vouching” occurs “where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.” (People v. Fierro (1991) 1 Cal.4th 173, 211.) “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, ’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 971.)
Appellant highlights the following two passages from the prosecutor’s closing rebuttal argument: (1) “[The Prosecutor]: Did you believe Flor based upon her own testimony, based upon her injuries, based upon what Stephanie told you, based upon what Officer Piro told you, based on the evidence presented? Were you convinced? Did you have an abiding conviction that on December 7th he raped her? Absolutely, because they did not lie. Flor did not lie. Stephanie didn’t lie. [¶] [Defense Counsel]: Objection. Improper argument. [¶] [The Prosecutor]: Officer Piro didn’t lie. [¶] The Court: Overruled.” (2) “[The Prosecutor]: She heard this because that’s what happened. She heard this and told you because she’s telling the truth. Again, look at the surrounding circumstances of the evidence presented and you’ll see Flor was telling the truth, Stephanie was telling the truth as to things that happened, and Officer Piro was telling the truth. [¶] [Defense Counsel]: Objection. Improper argument. [¶] The Court: Overruled.”
Standing alone, these comments likely would not be improper, as they are based on the evidence, and would not lead the jury to believe that the prosecutor had information outside of the record that proved the witnesses’ veracity. When the comments are considered in the context of the closing argument, however, their propriety is more apparent. These comments were part of a much longer argument, in which the prosecutor responded to defense counsel’s arguments that the prosecution witnesses had lied. The prosecutor argued in rebuttal that, based on the evidence presented, it was clear the witnesses were telling the truth, and the prosecutor made numerous references to the evidence in doing so.
“Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching, ’ which usually involves an attempt to bolster a witness by reference to facts outside the record.” (People v. Medina (1995) 11 Cal.4th 694, 757.) The prosecutor made no attempt to bolster the witnesses by using facts outside the record, or by implying that such facts existed. The jurors were instructed before closing argument that it was their responsibility to judge the credibility of the witnesses, and the prosecutor’s comments would not have swayed a reasonable juror to think otherwise.
C. Comment about exerting control
Appellant’s final contention is that the prosecutor improperly accused appellant of trying to exert influence over the jury: “[The Prosecutor]: I told you this is a crime of domestic violence, about power and control. And now the defendant wants to exert his power and control over all of you. [¶] [Defense Counsel]: Objection. Improper argument. [¶] [The Prosecutor]: His power and control. [¶] [The Court]: That’s sustained.”
Appellant argues that this was an unfair appeal to the jury’s sympathy, passion, or emotion.
First, this argument has been forfeited. It is well established that in order “[t]o preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.... Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile.” (People v. Brown (2003) 31 Cal.4th 518, 553.) Defense counsel objected to the prosecutor’s comment but did not seek any admonition, although an admonition surely would have cured any prejudice the comments may have caused. There is no indication that seeking an admonition would have been futile, and thus appellant’s argument is forfeited.
Second, and in any event, the comment was not prejudicial. Appellant cites to no authority in which any similar comment was found to unfairly appeal to the jury’s passions, and instead relies on cases in which prosecutors improperly appealed for sympathy for the victim. (E.g., People v. Arias (1996) 13 Cal.4th 92; People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) Those cases are not applicable here. The comment was brief and isolated, and had no reasonable probability of influencing the jury’s guilt determination. (See People v. Medina, supra, 11 Cal.4th at p. 760.)
The prosecutor did not employ deceptive or reprehensible methods, the defendant was not denied his constitutional rights, and the trial was not infected with unfairness. Reversal of the judgment is not warranted.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J. CHAVEZ, J.