Opinion
G052642
08-25-2017
THE PEOPLE, Plaintiff and Respondent, v. OSWALDO DAMIAN, Defendant and Appellant.
Dennis P. O'Connell for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13CF1044) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Dennis P. O'Connell for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Oswaldo Damian challenges his convictions for violation of Penal Code section 288.7, subdivision (a). As explained post, we affirm. Our analyses of the three issues on appeal are as follows:
1. Before the jury was sworn, in response to a juror's question, the trial court made a statement regarding the filing of charges. Defendant moved for a mistrial based on the court's statement. The statement constituted improper vouching by the court, and the first of the court's two admonishments to the jury merely made general statements regarding the presumption of innocence and the burden of proof. The second admonishment, at the request of defendant's trial counsel, however, tied the important constitutional concepts to the specifics of the court's earlier statement, and corrected the error. For reasons we explain, defendant suffered no prejudice as a result of the court's statement.
2. Defendant's trial counsel waived the right to cross-examine the victim, who was nine years old when the incidents occurred and 11 years old at the time of trial. Counsel argued that, because the victim's statements to an interviewer before trial and in his testimony were ambiguous as to whether penetration occurred, the prosecution failed to establish a necessary element of the offenses. Defendant does not establish ineffective assistance of counsel and he does not show it is reasonably probable that cross-examining the victim would have resulted in a better result.
3. Finally, defendant argues that the prosecutor committed prejudicial misconduct during final closing argument. We conclude the prosecutor did not make an improper personal attack on defendant's counsel, but rather argued the jury should not be misled by defendant's counsel's argument.
STATEMENT OF FACTS
The victim lived with his mother, V.H., and his two older brothers in one bedroom of a three-bedroom apartment in Santa Ana. Defendant and two of his brothers shared the second bedroom, and defendant's parents shared the third bedroom.
In October 2012, the victim was nine years old and in the fourth grade. Defendant was 19 years old. One evening, V.H. went to pick up dinner and left her three boys at home. When she returned, the victim came out of defendant's bedroom looking "all beaten up." He was crying and holding his stomach, his hair was messed up, and he appeared to be in pain. Defendant emerged from his bedroom after the victim. The victim told V.H. that defendant "had pressed his penis up against his butt, and . . . it had hurt him." V.H. asked defendant what he had done to the victim, and defendant responded, "it's just that."
When defendant's parents got home, V.H. told them what had happened. Defendant's mother asked V.H. not to call the police. Defendant moved out of the apartment after that night.
The next day, V.H. planned to take the victim to the hospital for a medical examination. Defendant's mother told V.H. that if she told the authorities what happened, V.H.'s children would be taken away by social workers. Defendant's mother asked V.H. to "understand her situation as a mother." After that, V.H. decided not to take the victim to the hospital and not to call the police.
V.H. and her children continued living in the apartment with defendant's parents. The victim did not want to go home after school ended; he wanted to stay in the school's after-care program. V.H. noticed that the victim started getting upset easily, would cry at night, and had trouble sleeping. When she asked him about what happened, he would not talk about it.
In March 2013, V.H. reported the sexual assault to the police.
The victim, who was 11 years old by the time of trial, testified that one day when he was in the fourth grade, he came home from school and started playing on the computer in his bedroom. Defendant, who was the only other person in the apartment at the time, came into the room and put the victim on the bed. Defendant unzipped his pants and the victim's pants, and pulled down the victim's pants. The victim tried to run away, but defendant grabbed him by the ribs. Defendant pulled both his and the victim's underwear down and then put his penis "in [the victim's] butt." The victim was is pain and said "ouch" out loud. The victim explained that defendant did not put his penis "into the part where the poop comes out"; he put it "next to" that part. Defendant stopped when one of the victim's brothers knocked on the bedroom window. Defendant threatened to beat up the victim if he told anyone what happened; the victim was scared.
The second time something happened, the victim's mother had left the apartment to buy food. While she was gone, defendant said to the victim, "let's wrestle." He then picked up the victim, carried him into defendant's bedroom, and put him on the bed. Defendant got into the bed with the victim and covered them both with a blanket. The victim was scared. Defendant unzipped his own pants, pulled down the victim's pants, and put "his penis in [the victim's] butt again." Defendant's actions again caused the victim pain. The victim tried to get away, but defendant told him to "stop moving." Defendant stopped when the victim's mother came home.
Defendant's trial counsel waived cross-examination of the victim.
In March 2013, the victim had been interviewed by the Child Abuse Services Team (CAST). A video recording of that interview was played for the jury. The victim told the interviewer he had been raped by defendant twice, once in September and once in October 2012. The victim's statements to the interviewer were consistent with his testimony at trial regarding both incidents. With respect to the September incident, the victim said defendant put his penis "[j]ust inside like a little, inside a little." With respect to the October incident, the investigator asked, "he put [his penis] in more, in that hole more?" The victim responded, "Yeah like almost where the poop comes out." The investigator clarified, "What do you mean almost where . . . like inside your body where the poop almost comes out?" The victim replied, "Yeah."
In April 2013, defendant was arrested and interrogated. A tape recording of that interview was played for the jury. Defendant told the police that he and the victim were wrestling in the victim's room before defendant carried the victim to defendant's room, threw him on the bed, and started "smacking him." Defendant claimed the victim got on top of defendant and "was kind of humping" him. Defendant unzipped his pants, pulled down the victim's shorts, and then put his "penis in his ass."
When the police officer asked defendant to be more specific, defendant said he put his penis between the victim's "cheeks," just under but not inside his anus. He stopped because he "thought that wasn't right" and because the victim's mother came home and he got scared. Defendant told the victim not to say anything about what happened.
Defendant admitted doing something to the victim one other time before the October incident. They were watching television and started wrestling in the victim's room. Defendant claimed he only humped the victim over his clothes that time, and the victim humped him, too. Later, defendant changed his story claiming that the victim pulled down his own shorts. Defendant admitted that his penis got hard during this incident. Defendant stopped because he did not feel right doing it. Although defendant knew these things were wrong, he "just got excited" and "wasn't thinking."
A jury convicted defendant of two counts of sodomy with a child 10 years of age or younger by a person 18 years of age or older (Pen. Code, § 288.7, subd. (a)). The trial court sentenced defendant to two concurrent terms of 25 years to life in prison. Defendant timely filed a notice of appeal.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION TO STRIKE THE JURY.
Immediately before the trial court was to swear in the jury, the following colloquy took place between Juror No. 11 and the court:
"Juror Number 11: From a prosecution standpoint, does it make more sense to have fewer counts towards him because the burden of proof is not as high? [¶] Do you know what I mean? Like
"The Court: Whether there's one count or a hundred counts, it really doesn't matter. The process is as follows: [¶] The crime is reported. The police department investigates the crime, the crimes, or whatever it may be. The police department files a report with the district attorney's office. The district attorney's office, in turn, not the police department, the district attorney's office reviews the matter. They determine what charges to file. Okay? They determine that by the law. [¶] The law is very specific. You can't just throw everything out there and hope something sticks. Okay? They have an ethical and legal obligation as to what they file and don't file. [¶] And so whether, again, they file one case three—one count, three counts, twenty counts, it really doesn't matter. That's more or less, in a nutshell, the process. [¶] Does that seem to answer your concern?
"Juror Number 11: If I hear you correctly, if you have fewer counts, it's easier to prevent acquittal?
"The Court: No. [¶] Again, it doesn't matter if you have one count or a hundred counts. Again, sir, each count needs to be looked at separately from all the rest. Okay? And each count you will have to determine—make a decision—okay?—As to each count individually, separately, standing alone by itself, not in conjunction with one or the other. There's no blending one count, another count, another count. You've got to be unanimous. [¶] So don't over-think this. Don't start anything—you know, it's completely irrelevant as to, well, if they file this many charges, that many charges, this or that or any strategy or any of that chess game, that is not your responsibility. That is not your job. [¶] Simply, your job is to listen to the evidence, determine what the facts are, assess the credibility of the witnesses, apply the law as I give it to you, and then render a decision."
In chambers, defendant's trial counsel stated that he had "problems" with the court's explanation about how cases are filed because he felt there "was some endorsement of the district attorney's decision to file a charge a certain way." Defendant's trial counsel asked the court to admonish the jury regarding "innocence until proven guilty, the burden of proof, some kind of admonition showing that there isn't any type of judicial approval of the charges here." Specifically, defendant's trial counsel asked the court to provide the jury with "clarification that the filing [of] a charge is not evidence of guilt."
Back in the courtroom, the court admonished the jury with CALCRIM No. 220 as follows: "The fact a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. [¶] Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. . . . [T]he defendant, again, is innocent—is presumed innocent of all the charges, just like everybody else in this room or country who is charged with a crime. The burden of proof always remains, never leaves the People, and they have the burden to prove each and every element to you beyond a reasonable doubt."
Defendant's trial counsel requested another sidebar, and moved the court to strike the jury panel. The court offered to allow both sides to question the jurors about potential bias or to instruct the jury that nothing the court said could be considered evidence or an opinion the court might have about the case. Defendant's trial counsel asked the court to admonish the jury that it did not "intend to convey the message that the filing of charges is evidence of guilt or an endorsement of the prosecutor's decision to file charges."
The trial court denied the motion to strike the jury panel because "[t]he court does not feel that it has done anything at this point that would prejudice this panel." The court then admonished the jury as follows: "I just want to indicate to everybody that during the court's discussion with juror [11] and its attempt to briefly explain to you how cases move through the system, so to speak, the court did not in any way, shape, or form intend to indicate or infer that the filing of charges by any agency is evidence of guilt. [¶] As I've read to you and you'll be instructed at the end of the case, just the fact that charges have been filed against an individual is not any indication whatsoever of guilt, nor did this court mean in any way in trying to offer such an explanation to endorse any particular side or any type—or any police department or any prosecutorial agency as to whether or not the filing of any charges were proper and correct. [¶] When the day is done, you'll . . . be given jury instructions that no matter what I say, my role is not to tell you how to do something and you are not to derive or indicate or infer from anything I've said anything about what I might think about the facts, the witnesses, or what your verdict should be. [¶] When the day is done, what I have to say, if I say anything that might touch on those areas, is irrelevant and not to be considered by you. [¶] When the day is done, you are to determine what the facts are based on what you hear from the witness stand and what's admitted into evidence. You are to assess the credibility of those witnesses. [¶] And, when the day is done, your oath to follow the law . . . will include following the law as I give it to you."
It is error for a judge to display bias against the defense or in favor of the prosecution during voir dire. (People v. Fatone (1985) 165 Cal.App.3d 1164, 1169.) The Attorney General contends the court's statements were not improper: "Even if the court's comments could be seen as a suggestion that the prosecution must possess some evidence of guilt before filing charges, the court was merely stating the obvious, and no reasonable prospective juror would have taken the comments to mean that the court thought appellant was guilty. Contrary to appellant's suggestion, the court's comments did not come close to a suggestion that the court believed the charged crimes occurred." We disagree. The court's comments went beyond suggesting that the prosecution must possess some evidence of a defendant's guilt before filing charges. Rather, the only reasonable inference the jury could draw from the court's statement that the prosecutor's legal and ethical obligations determine whether or not to file certain charges was that the charges actually filed were those the prosecutor could legally and ethically support.
In People v. Alvarado (2006) 141 Cal.App.4th 1577, a majority of the appellate court concluded the prosecutor committed misconduct during closing argument by impermissibly vouching for the strength of her case. "[T]he prosecutor impermissibly invited the jury to convict Alvarado based on her opinion that he was guilty and on the prestige of her office by responding: 'I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.' The only reasonable inference from these comments is that (1) the prosecutor would not have charged Alvarado unless he was guilty, (2) the jury should rely on the prosecutor's opinion and therefore convict him, and (3) the jurors should believe Pedraza for the same reason. This argument constituted misconduct." (Id. at p. 1585.)
The majority of the panel in People v. Alvarado, supra, 141 Cal.App.4th at pages 1583-1584, concluded that the prosecutor's statement was so serious it amounted to structural error. Although no admonishment was sought or given in People v. Alvarado, the majority decided that no admonishment could cure the prosecutorial misconduct. (Id. at pp. 1585-1586.)
In the present case, the erroneous statement was made by the court, not the prosecutor. The court is properly viewed by jurors (and prospective jurors) as a neutral who is not an advocate. Thus, a pro-prosecution statement by a judge is a more serious matter than a statement made by a prosecutor, as in People v. Alvarado.
However, there are two material differences between the statements in People v. Alvarado and the one made by the trial court here. First, the statement made by the trial court in this case was a single statement, which was not phrased as personal vouching. Second, the court's statement was followed by two admonishments to the jury. For these reasons, we do not believe the court's error amounted to structural error. Consequently, we next address whether the error was prejudicial.
The applicable standard of appellate review for assessing prejudice depends on whether the error amounts to federal constitutional error. If it does, we apply the standard of Chapman v. California (1967) 386 U.S. 18, and decide whether the error is harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman v. California, supra, 386 U.S. at p. 24.) If the error does not rise to that level, we apply our state Constitution's standard under People v. Watson (1956) 46 Cal.2d 818 to determine if there is a reasonable probability of a different result. (People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson, supra, 46 Cal.2d at p. 835.)
In this case, the Chapman rule would apply because the judge's error went to the presumption of innocence and the burden of proof, implicating defendant's federal constitutional rights. In the absence of the trial court's admonishments to the jury, we would conclude the error was prejudicial.
The court, however, provided two admonishments to the jury regarding its improper statement. While the first admonishment would not have been enough alone, the second admonishment connected the general statements about the presumption of innocence and the burden of proof to the specifics of the court's statement about a prosecutor's responsibilities, and emphasized the court's statement was not indicative of the court's views on the case.
Penal Code section 1138 is not directly implicated in this case because the jury had not yet been sworn. But the statute shows that judges must be vigilant when answering questions from the jury or the venire at any time.
"After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (Ibid.) --------
In conclusion, we strongly caution the trial court to avoid this or similar statements in the future. The court's statement was not neutral, and absent the court's agreement with defendant's trial counsel's request for a second admonishment, would have resulted in a reversal of defendant's conviction.
II.
DEFENDANT'S TRIAL COUNSEL WAS NOT INEFFECTIVE IN
WAIVING CROSS-EXAMINATION OF THE VICTIM.
Defendant argues that his trial counsel was ineffective for failing to cross-examine the victim. To prevail on a claim of ineffective assistance of counsel, the defendant must prove (1) the attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) the attorney's deficient representation subjected the defendant to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, at p. 694.)
Defendant contends there were "numerous inconsistent statements" in the CAST interview about which counsel should have cross-examined the victim. Defendant fails to identify any of those statements or explain how or why they were inconsistent with the victim's trial testimony.
Defendant's theory of the case was that the sodomy charges could not be proven because the prosecution had not established penetration. Defendant's trial counsel repeatedly raised this issue during his closing argument. It is true that there was some ambiguity between the victim's CAST interview and trial testimony, as well as within the CAST interview, with regard to the issue of penetration. This ambiguity allowed defendant's trial counsel to argue that the prosecution had failed to prove penetration. Based on the record before us, we do not believe there was deficient representation by defense counsel.
In any event, defendant was not prejudiced by his trial counsel's failure to cross-examine the victim. The victim testified that in both incidents, he experienced pain "where the poop comes out." V.H. observed her son crying in pain after the October 2012 incident. The jury could reasonably infer that the pain the victim suffered was caused by penetration. Defendant cannot show it is reasonably probable the jury would have acquitted him if his counsel had cross-examined the victim.
III.
THERE WAS NO PROSECUTORIAL MISCONDUCT.
Defendant contends his conviction must be reversed because the prosecutor committed prejudicial misconduct during final closing argument. "'"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] . . . When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."'"'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 427.) "'A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.'" (People v. Redd (2010) 48 Cal.4th 691, 734.) However, "'[t]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account.'" (Id. at p. 735.) Where the prosecutor's argument "would be understood by the jury as an admonition not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel," the claim will be rejected. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Indeed, the California Supreme Court has rejected prosecutorial misconduct claims targeting statements that "'any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something'" (People v. Medina (1995) 11 Cal.4th 694, 759); and a "'heavy, heavy smokescreen . . . has been laid down [by the defense] to hide the truth from you'" (People v. Marquez (1992) 1 Cal.4th 553, 575).
Over defense counsel's objection, the prosecutor talked about the "nah, nah, nah defense" during closing argument. She explained, "You know, . . . on the playground, like when one kid is talking to another one, "nah, nah, nah, you can't get me." The nah, nah, nah defense."
The prosecutor argued:
"[Defendant's trial counsel] told you I had no one who could get up here and tell you his penis went into his anus. All I had was the penis went into the butt. So nah, nah, nah, she can't prove penetration.
"But what else do I have? I have everything else. I have all the other circumstantial evidence. I'm not going to beat a horse because the horse is dead. You guys know what the evidence is of penetration. I'm just going to talk about a couple of things that Mr. Okamoto talked about and then I'm going to sit down and you guys are going to go to lunch and come back fresh.
"But Mr. Okamoto wants you to disregard evidence. He wants you to rely on the fact that . . . I do not have a witness who's going to say that a penis went into the anus. I don't. You already know that. I don't have a witness that can say that, but I have everything else.
"He wants you to disregard [V.H.] because [V.H.] is not a percipient witness to penetration. She couldn't come in here and say his penis with into the anus, so nah, nah, nah. Cross her off the list.
"Who else? [The victim]. And [the victim] can't say the magic words. He's probably never even heard the word 'anus,' but he can't say the magic word so nah, nah, nah. Can't take his testimony. Cross him off.
"We have the defendant's statement. What does the defendant say? He says at first 'I put it in his butt,' but then he minimizes and says 'No. No. It was just on the outside.' So he doesn't say penis into the anus, so nah, nah, nah, you can't use his."
The prosecutor concluded her argument as followed:
"Nah, nah, nah doesn't work on smart jurors, it does not work on diligent jurors who are going to look at all the evidence. It doesn't work and it's not fair for the defense to be able to say because he's a child and because he's 9 or 11 and because he can't use the magic words that his penis went into my anus that you get to take advantage of him again for the third time. It doesn't work and nah, nah, nah is not going to work."
After defendant was convicted, his counsel filed a motion for a new trial in which the prosecutor's statements during final closing argument were challenged for having impugned the integrity of defendant's trial counsel. The court rejected this argument:
"The Court: Well, wasn't the 'nah, nah, nah' defense more of an analogous argument that was being made by the People rather than a direct affront to Mr. Okamoto? I mean, it wasn't a reference that this was a playground and Mr. Okamoto is this naughty little kid. It was more analogous to like—well, that sometimes both counsel often do in closing statements; they'll take some analogous situation that the jury can relate to, whether it be a 'nah, nah nah' that one might experience as a child on a playground or field or whatever it be a sports analogy or whether it be a TV show analogy. [¶] I mean, isn't it more of an analogy than a personal affront as to the attorney himself?
"Mr. O'Connell [defendant's appellate counsel]: This analogy wasn't directed to [defendant]. This analogy was directed to the tactics of Mr. Okamoto. [¶] I mean, you can use analogies. Lawyers use them all the time as to witness' credibility at trial. This doesn't involve the integrity of the lawyer. Well, John Smith came in and told you A, B and C. Remember this story when I was a kid, blah, blah, blah.
"The Court: Well, how is that any different than saying, well really what defense counsel is arguing is a big red herring? It's a big red herring. Let me tell you what a red herring is. It's a stinky old fish. . . . [¶] . . . You're commenting, again, on the defense attorney's theory, his argument, whatever it may be, but not himself. It's different than saying, the defense attorney himself is a red herring."
Defendant likens this case to People v. Herring (1993) 20 Cal.App.4th 1066, in which the appellate court concluded that the prosecutor's personal attacks on the defendant and defense counsel required reversal. During final argument to the jury, the prosecutor said, among other things: "'My people are victims. His people are rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth.'" (Id. at p. 1073.) These statements "inferred that all those accused of crimes whom defense counsel represented are necessarily guilty of heinous crimes. Additionally, he impliedly denigrated the presumption of innocence and the requirement that guilt be proved beyond a reasonable doubt. More egregious, he inferred that defense counsel suborned perjury." (Id. at p. 1075.) The prosecutor also called defendant a parasite, a dog in heat, and a primal man who believed women enjoyed being forced to have sex. (Id. at pp. 1073-1074.) The appellate court concluded these "uncalled for aspersions on defense counsel's character and integrity directed the jury's attention to irrelevant maters and were not proper comments on the evidence or inferences to be drawn therefrom." (Id. at p. 1075.)
The Attorney General draws our attention instead to People v. Cunningham, supra, 25 Cal.4th at page 1003, where the California Supreme Court rejected a claim of prosecutorial misconduct where the prosecutor's argument "would be understood by the jury as an admonition not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel." In that case, the prosecutor said the job of the defense attorneys "is to put up smoke, red herrings. And they have done a heck of a good job. And my job is to straighten that out and show you where the truth lies." (Id. at p. 1002.) The court in People v. Cunningham, supra, at pages 1002-1003, also cited other cases in which it had approved prosecutors' arguments that a "'heavy, heavy smokescreen has been laid down [by the defense] to hide the truth from you'" (People v. Marquez, supra, 1 Cal.4th at pp. 575-576), and that the defense was "attempting to hide the truth" like the metaphorical "'ink from an octopus'" (People v. Cummings (1993) 4 Cal.4th 1233, 1302, overruled on another ground in People v. Merritt (2017) 2 Cal.5th 819).
We conclude the prosecutor's argument in this case was not improper because it did not lead to improper inferences or assumptions, and did not denigrate defendant's constitutional rights. Rather, as defendant's appellate counsel acknowledged at the hearing on the motion for a new trial, the argument was the equivalent of an argument that defense counsel's arguments were a red herring—a type of argument that has been approved by the California Supreme Court.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. THOMPSON, J.