Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge, Super. Ct. No. F06600679-5.
Before Levy, Acting P.J., Gomes, J., Dawson, J.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
A jury convicted appellant Mario Parra Gaona of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1) and infliction of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a); count 2). The court imposed a two-year lower term on each count, and stayed execution of sentence on count 2 pursuant to section 654.
All statutory references are to the Penal Code.
At trial, as discussed more fully below, the complaining witness was assisted at various times by two support persons, pursuant to section 868.5. Appellant argues that the numerous references to these support persons as “victim” advocates, and the testimony of one of the support persons that she was employed by the prosecution, constituted impermissible vouching for the credibility of the complaining witness in violation of appellant’s constitutional right to due process of law. We will affirm.
Section 868.5 provides, in relevant part: “(a) Notwithstanding any other law, a prosecuting witness in a case involving a violation of [certain enumerated statutes, including section 273.5], shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at the preliminary hearing and at the trial, or at a juvenile court proceeding, during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony…. [¶] (b) … In all cases, the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness.”
BACKGROUND
Instant Offense
Maria Gonzalez testified to the following. She had been involved in a romantic relationship with appellant, off and on, for approximately 13 years. During that time the two lived together intermittently. On Monday, May 29, 2006, they argued. Appellant had been staying at Gonzalez’s house since the previous Saturday. At one point during this argument, appellant grabbed an iron and burned Gonzalez’s arm three or four times.
References to Support Persons
Immediately after the prosecutor called Gonzalez as a witness, the following exchange occurred:
“MRS. DIAZ [prosecutor]: And, your Honor, for the record she would also be accompanied by Joyce Sanders. She [is] with the Witness Victim Advocates Office.
“THE COURT: And you are a trained victim witness advocate; is that correct?
“MRS. SANDERS: Yeah. I [am] with the D.A.’s office, but I [am] a witness victim advocate….
“THE COURT: Okay. And ladies and gentleman, this person will be allowed to be nearby the witness during the testimony. She is provided simply for purposes of providing moral support and comfort in her surroundings during the course of her testimony.”
At that point, the court, addressing the support person, stated: “I will give you the admonition that you are already aware of. You are not in any way to be involved in the providing of testimony and prompting of the witness or in any way interfere with the questions or answers.”
Later in the trial the court, after noting for the record that “[o]ur witness, Mrs. Gonzalez has returned to the witness stand,” and “[a]lso present is our witness advocate,” noted further that the prosecutor had informed the court that “our advocate present today” knew one of the jurors. The court then stated: “[Y]ou understand that she is just serving the function of an advocate. I explained that function earlier and she is not a witness in this case. She is -- her presence is not to be considered by you in any way whatsoever. She is here just to simply to make sure that the proceedings go smoothly…. [¶] I am going to advise you that at some point whenever another witness advocate does arrive she will be replacing our current advocate for several reasons, part of which is the fact that she had that personal acquaintanceship with you.”
Earlier, outside the presence of the jury, defense counsel informed the court that the support person “may be sick.”
Subsequently, the following exchange occurred in the presence of the jury:
“THE COURT: … I would note that there is a new witness advocate present in court …. Would you please state your name for the record?
“MR. VILLELA: My name is Tony Villela ….
“THE COURT: Thank you. And you are employed by?
“MR. VILLELA: Fresno County Victim Services.
“THE COURT: Okay. And you were brought here at the request of the district attorney; is that correct?
“MR. VILLELA: That is correct.”
Later in the trial, after a recess, the court noted for the record that Gonzalez was back on the witness stand, “assisted by . . . the presence of Mr. Villela, who is a witness advocate.” After another break, the court told the jury Gonzalez was “being assisted by . . . having the presence of Mr. Villela from the victim witness service.” And after another break, the court stated Gonzalez was about to resume her testimony, and “[a]lso present is Mr. Tony Villela, who is a victim witness advocate, present in court to assist the witness in her providing of testimony today.”
DISCUSSION
Our summary of the relevant background indicates the following: During the course of the trial, appellant was assisted by two section 868.5 “support persons.” (§ 868.5, subd. (a).) The court and the prosecutor referred to these persons as “victim” advocates, as did the support persons themselves. And on one occasion, support person Joyce Sanders stated she was employed by the district attorney’s office.
Appellant argues as follows: These repeated references to the support persons as victim advocates told the jury that Gonzalez was, in fact, the victim of the charged offenses, and, considered in conjunction with Sanders’s statement that she was employed by the district attorney’s office, “constituted improper vouching for Gonzalez by placing the imprimatur of the prosecution on her testimony, inducing the jury to trust the prosecution view of the evidence rather than reach it own conclusions,” in violation of appellant’s right to due process of law.
In challenging statements by both (1) the prosecutor (and prosecution witnesses) and (2) the court, appellant raises claims of both prosecutorial and judicial misconduct. Appellant bases both these claims on the following principles: “The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.” (U.S. v. Young (1985) 470 U.S. 1, 18-19.)
With respect to claims of prosecutorial misconduct, if an allegation of such misconduct “‘“focuses upon comments made by the prosecutor 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. Carter (2005) 36 Cal.4th 1215, 1263.) “‘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. Brown (2003) 31 Cal.4th 518, 553-554.)
It is not reasonably likely that the jury viewed statements by the prosecutor and the support persons impliedly referring to Gonzalez as a “victim,” and/or Sanders’s statement that she was employed by the district attorney’s office, as placing the government’s imprimatur on the prosecution’s implied characterization of Gonzalez as the victim of appellant’s offense(s). Rather it is more likely that the jury concluded from the evidence of Sanders’s affiliation that the prosecutor’s office, in connection with its prosecution of persons it alleges has committed crimes, employs persons to act as “advocates,” i.e., to provide, as the court told the jury, “moral support and comfort” for persons it alleges are the victims of those crimes. Such an inference would not “‘“so infect[] the trial with unfairness as to make the resulting conviction[s] a denial of due process.”’” (People v. Farnam (2002) 28 Cal.4th 107, 167.)
Moreover, not every expression of opinion by the prosecutor that a defendant has committed an offense constitutes impermissible vouching for the credibility of a witness. “[A] prosecutor may state his opinion formed from deductions made from evidence introduced at the trial .…” (People v. Heishman (1988) 45 Cal.3d 147, 195.) What a prosecutor may not do is “express a personal opinion as to guilt if there is substantial danger that a juror will interpret it as being based on information not in evidence.” (Ibid.) Here, to the extent the statements of the prosecutor and the support persons, including Sanders’s statement regarding her affiliation with the prosecutor’s office, suggests that the prosecutor was of the opinion appellant committed a crime and that Gonzalez was the victim, nothing suggests that opinion was based on information not in evidence.
The numerous instances of the court’s use of the word “victim” in connection with the support persons require a different analysis. However, regardless of whether appellant’s claim is characterized as one of judicial misconduct, prosecutorial misconduct, or a combination of the two, such claims have not been preserved for appeal.
“As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.] However, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile. [Citations.]” (People v. Sturm (2006) 37 Cal.4th 1218, 1237.) The same principles apply to claims of prosecutorial misconduct. (People v. Earp (1999) 20 Cal.4th 826, 858.) Here, as appellant does not dispute, appellant raised no objection to any of the statements of the court, prosecutor and support persons he now claims constituted impermissible vouching.
Appellant argues that his claims are preserved based on the exception to the general waiver rule set forth above. Specifically, he argues, “Once the prosecutor announced [Sanders’s] presence and title and the court and Sanders established she was employed by the district attorney, the bell had been rung. An objection and request for an admonishment would have been futile.” We disagree. There was nothing so inherently prejudicial about Sanders’s affiliation with the district attorney that any damage caused by the revelation of that information could not have been cured by an admonition.
Appellant also argues his claims are not forfeited because “repeated vouching here deprived appellant of his fundamental due process rights to a fair trial by an impartial jury,” and “[f]undamental constitutional rights are not forfeited by failure to object.” We disagree.
Appellant bases this contention on the following principle, set forth in People v. Vera (1997) 15 Cal.4th 269, 276-277 (Vera): “[n]ot all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights. [Citations.]” (Italics added.) However, as the court stated in People v. Viray (2005) 134 Cal.App.4th 1186, 1209 (Viray), “[t]he proposition that ‘certain’ constitutional challenges are preserved without a trial objection hardly establishes that all such claims are preserved, or that defendant’s claim is preserved.” In Viray, in holding that the defendant had forfeited his claim that his Sixth Amendment right to counsel had been violated, the court stated: “None of the examples cited in Vera bears any resemblance to the constitutional-evidentiary issue defendant seeks to raise here. (See People v. Saunders (1993) 5 Cal.4th 580, 592, 589, fn. 5 … [plea of once in jeopardy]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 …, quoting former Cal. Const., art. I, § 7; see now Cal. Const., art. I, § 16 [objection to defective jury waiver]; see also People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 77, fn. 20 … [former jeopardy].)” (Ibid.) Similarly, in the instant case, the issues appellant raises on appeal do not resemble the examples cited in Vera. Appellant’s claims do not implicate nonwaiveable fundamental constitutional rights.
As the United States Supreme Court recognized in United States v. Olano (1993) 507 U.S. 725, 731, “‘[n]o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’” By his failure to object below appellant has forfeited his claim of impermissible vouching by the prosecutor and/or the court. (People v. Williams (1997) 16 Cal.4th 153, 256 [claim that prosecutor vouched for credibility of witness waived by failure to object]; People v. Medina (1995) 11 Cal.4th 694, 757 [same]; People v. Boyd (1990) 222 Cal.App.3d 541, 571 [same].)
Finally, appellant argues that because the Fresno County District Attorney employs victim advocates “it would not be surprising” if the errors appellant claims here “were to recur,” and because the instant case “presents an important legal issue,” this court should address his claims notwithstanding his failure to object in the trial court.
We recognize that “application of the forfeiture rule is not automatic.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.) But although an appellate court retains “inherent discretion” to entertain forfeited claims (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6), such discretion “should be exercised rarely and only in cases presenting an important legal issue” (In re S.B., supra, 32 Cal.4th at 1293). Appellant’s speculation as to the recurring nature of the error claimed here does not persuade us that this is the rare case in which we should exercise our discretion to not apply the forfeiture rule.
DISPOSITION
The judgment is affirmed.