Opinion
C096222
06-02-2023
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROGER GULLETT, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. MAN-CR-FDV-2018-0000188)
BOULWARE EURIE, J.
A jury found defendant William Roger Gullett, Jr., guilty of inflicting corporal injury on a spouse or cohabitant. The trial court suspended imposition of sentence and placed defendant on probation for four years, ordering him to spend 360 days in county jail. On appeal, defendant contends his conviction should be reversed as a result of prosecutorial misconduct. He further contends the trial court failed to understand its discretion at sentencing, and the matter should be remanded accordingly. We affirm the judgment.
BACKGROUND
In February 2022, the People charged defendant with inflicting corporal injury on a spouse or cohabitant. (Pen. Code, § 273.5, subd. (a).) The People also alleged numerous factors in aggravation. During closing arguments at trial, the prosecutor argued the victim's version of events was more credible than defendant's. The prosecutor told the jury, defendant "lied to you. He lied to you on that stand, and he has every motive in the world to do so. He has a very personal interest in how this case is decided."
The prosecutor also explained the elements of the crime of inflicting corporal injury on a spouse or cohabitant, and explained the burden of proof. She told the jury it was her burden to prove each element beyond a reasonable doubt. She described to the jury what beyond a reasonable doubt means: "[B]eyond a reasonable doubt isn't beyond any doubt, beyond any imaginary doubt; it's beyond a reasonable doubt, and reasonable based on the evidence that's been presented to you over the course of this trial."
On rebuttal, the prosecutor again argued that defendant's testimony was not credible. She also argued that, contrary to defense counsel's argument, if there are two reasonable conclusions that may be reached, the jury was required to accept the one pointing to innocence. As she closed her rebuttal, the prosecutor said to the jury, "I know some of you are thinking, [prosecutor], this case happened five years ago. [Prosecutor], [the victim] didn't even call 911 to report this. [Prosecutor], this case was short. So, [prosecutor], why do we care? And you care because he needs to be held accountable for his actions. You care because he needs to be told you don't hit your girlfriend when you're in an argument with her. You care because he needs to take responsibility for what happened that night. You care because it's the right thing to do.
"And you all throughout your service have demonstrated that you do the right thing. You got that jury summons in the mail and you could have just tossed it under a pile of mail and forgotten about it, but you didn't. You came in, you answered that summons. Why, because it was the right thing. And then you got here and you listened to everyone around you give reasons why they couldn't serve on this jury and none of you did that. You sat here and you answered my questions, you answered the Court's questions, you answered [defense counsel's] questions, sometimes very personal questions, honestly and openly. Why, not because you don't have other things you could have been doing this week, not because you all don't have your own busy lives, but because it was the right thing to do. And then you sat here during this trial and you were respectful and you listened to the witnesses, and you listened to their testimony and you paid attention, you stayed awake. Why, because it was the right thing to do. Now none of this was easy. Oftentimes the right thing to do isn't, oftentimes the right thing to do is hard.
"But members of the jury, I am asking you to go back into that deliberation room and do one more right thing, do one more right thing during your service, hold this defendant accountable for what he did to [the victim]. Tell this defendant that it is not okay to hit your significant others when you are angry at them. Hold this defendant accountable for his actions because he refuses to do so when he sat on that stand and lied to you. Find him guilty."
The jury found defendant guilty as charged. At sentencing, the trial court suspended imposition of sentence, placed defendant on four years' probation, and ordered him to serve 360 days in county jail. The court explained its decision: "So that carries a sentence of two years, three years, or four years state prison. [¶] As far as probation, if probation were granted he could get anything from no jail to one year in jail. There are a number of factors that have to be looked at in determining whether probation is appropriate. The first is the details of the offense."
The court summarized the details of the offense and concluded that "this is a case where there was domestic violence. Fortunately there were no permanent injuries, she did not require surgery or sutures or really any medical attention. The negative side to this is that the defendant, while he does not have any felonies, he has a number of misdemeanors.... Four misdemeanors plus a driving under the influence, misdemeanor.
"The defendant has a background involving violence. Fortunately these crimes are not of significant violence or they would have resulted in felony convictions, but the number is building up and that concerns me. On the other hand, other than the driving under the influence . . ., two and a half years ago, he hasn't had any trouble since 2007, so that's 15 years.
"Also, on the positive side, it is a positive probation report recommending probation. The defendant is co-owner of apparently a successful business. There was a letter from a physician who is familiar with the defendant, it was a positive letter.
"And based on all these factors I am going to grant probation.
"However, there is a problem here, and that problem is he has these misdemeanor priors involving violence. Even though he went a long time without another conviction, now we have a felony involving violence. Fortunately it's not enough violence for me to say it should be state prison, but if the victim had received anything more serious or anything more significant as far as the injuries, had she required hospitalization or sutures or had there been broken bones, it would have been a state prison case. It's not, though.
"But, as I say, while I'm going to grant probation, I'm going to impose 12 months in the county jail. So I am going to grant probation.
"What is the period for probation on this, two years?
"[Prosecutor]: Four.
"THE COURT: I'm going to place the defendant on formal probation, suspend imposition of sentencing four years on the condition the defendant obey all laws. Serve 360 days in the county jail." Defendant timely appealed. After multiple granted requests for an extension of time by both parties, the case was fully briefed on February 24, 2023.
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in closing argument by urging jurors to "do the right thing" and find defendant guilty. Defendant, however, did not raise this objection in the trial court. The contention is thus forfeited. (See People v. Caro (2019) 7 Cal.5th 463, 510.) Anticipating forfeiture, defendant asks this court either to exercise its discretion and consider the claim on its merits, or find counsel ineffective for failing to object. Rather than address defendant's claim that trial counsel was ineffective for failing to object, we exercise our discretion and consider the merits of his claim. (See People v. Lewis (1990) 50 Cal.3d 262, 282.)
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim 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. Morales (2001) 25 Cal.4th 34, 44.)
"During opening and closing arguments, the prosecution is given wide latitude to make' "fair comment on the evidence, including reasonable inferences or deductions to be drawn from it." '" (People v. Parker (2022) 13 Cal.5th 1, 72.)" 'It is[, nevertheless,] improper [for the prosecutor] to make arguments to the jury that give it the impression that "emotion may reign over reason," and to present "irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response." '" (People v. Redd (2010) 48 Cal.4th 691, 742743.) We consider the challenged remarks "in the context of the argument as a whole. [Citation.] 'In conducting [our] 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. Covarrubias (2016) 1 Cal.5th 838, 894.)
Here, the prosecutor urged the jurors to "do the right thing" and hold defendant responsible for his conduct. She remarked that the jurors already had done many "right things" by responding to their jury summons and participating in the trial. Isolated and brief statements asking the jury to do the right thing for society and the victim is permissible argument. (See People v. Medina (1995) 11 Cal.4th 694, 759-760; see also People v. Adanandus (2007) 157 Cal.App.4th 496, 513 [collecting cases, no misconduct where prosecutor urged the jury to do "the right thing" and "to make a statement"].)
Moreover, when considered in context with the rest of the prosecutor's argument, these statements are neither emotional nor inflammatory. (See People v. Redd, supra, 48 Cal.4th at pp. 742-743 [improper to make emotional arguments and use inflammatory rhetoric].) The prosecutor's closing and rebuttal made clear the People bore the burden of proof, described the elements of the crime charged, and repeatedly focused on the evidence. Indeed, the focus of the prosecutor's argument was that defendant was a liar and his testimony was not credible. His fate thus lies in the jury believing the victim's testimony and not defendant's.
Accordingly, even had defendant preserved his claim of prosecutorial misconduct, the claim fails on the merits.
B. Sentencing Discretion
Defendant also contends the trial court failed to exercise "informed discretion" at sentencing because the court wrongly believed the minimum period of probation was two years when it imposed four years of probation. Defendant forfeited this claim by failing to raise his objection in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353-354.) Anticipating forfeiture, defendant claims his trial counsel was ineffective in failing to raise the objection. We are not persuaded.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result. [Citations.] A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) "If a claim of ineffective assistance of counsel can be determined on the ground of lack of prejudice, a court need not decide whether counsel's performance was deficient." (In re Crew (2011) 52 Cal.4th 126, 150.)
Defendant" 'must establish "prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." '" (In re Cox (2003) 30 Cal.4th 974, 1016.) Defendant failed to show that counsel's allegedly deficient performance prejudiced him. The trial court thoughtfully considered all relevant factors in setting the term of probation. The court noted the "positive" aspects of defendant's history as well as those aspects the court found concerning, including the number of prior offenses and the overarching theme of violence in defendant's history. Whether the trial court was mistaken about the minimum term of probation, the court amply demonstrated its intention to impose four years.
As a result, on this record, defendant cannot demonstrate a reasonable likelihood he would have received a more favorable result had counsel objected in the trial court.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., KRAUSE, J.