Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F03489
BLEASE , Acting P. J.
A jury convicted defendant Phillip Victor Mathews of seven counts of violating Penal Code section 288, subdivision (c)(1) (commission of a lewd act upon a child; counts 1-7) and three counts of violating section 288a, subdivision (b)(2) (oral copulation of a child under the age of 16 by a person over the age of 21; counts 8-10). The victim was his stepdaughter, Mia, who was between 14 and 15 when the violations occurred.
References to an undesignated section are to the Penal Code.
The abstract of judgment incorrectly states defendant was convicted of six counts of violating section 288, subdivision (c)(1), and four counts of violating section 288, subdivision (b)(2). We shall direct the trial court to amend the abstract to reflect the counts as set forth above.
Defendant argues the trial court erred in failing to find a prima facie case of systematic exclusion of women from the jury, and the prosecutor engaged in misconduct in her closing argument. We shall conclude defendant did not raise an inference of impermissible bias against female jurors, and defendant’s claim of prosecutorial misconduct was forfeited because he failed to make a timely objection.
FACTUAL AND PROCEDURAL BACKGROUND
Mia’s mother, Marsha, adopted Mia from foster care. Mia was born premature, addicted to drugs, and suffered a brain hemorrhage at birth. Mia was in the tenth grade at the time of trial, but was being home-schooled and taking some special education classes. Mia testified it takes her a little longer to understand things.
Mia testified her mother married defendant on April 5, 2002. About two months after they were married, defendant began coming into Mia’s room at night. He would rub her “crotch” and breast with his hand, and touch her vagina with his tongue.
Mia did not tell her mother what was happening because she knew her mother would not believe her. However, she told the counselors at her after school programs. She also wrote about the situation in her journal.
An investigator for Child Protective Services (CPS) interviewed Mia in August 2003, but she denied anyone was touching her inappropriately. In October 2003 another CPS investigator interviewed Mia. This time, Mia told the investigator that her stepfather was touching her inappropriately.
Mia’s adoptive mother, Marsha, did not want her to testify, and was still married to defendant at the time of trial. At one point Mia told the defense investigator she made everything up because she was mad at her mom and step-dad. At trial, Mia testified she told the investigator she made it all up because she was tired of her mom “pressuring” her.
The jury convicted defendant on all counts. The jury also made findings on aggravating factors for purposes of sentencing. The trial court sentenced defendant to the upper term of three years on count one (§ 288, subd. (c)(1)), and one-third the middle term (eight months) for the remaining nine counts, all terms to run consecutively. Defendant’s aggregate sentence was nine years in state prison.
DISCUSSION
I
Jury Selection
Defendant made a Wheeler motion during jury voir dire, challenging the prosecutor’s use of peremptory challenges to exclude women from the jury. The prosecutor made eight peremptory challenges, six of which were against prospective jurors who were female. Defendant made his Wheeler motion after the prosecutor’s seventh challenge, and her sixth challenge of a woman.
People v. Wheeler (1978) 22 Cal.3d 258.
Defense counsel made the following statement: “It was my observation that I believe the first six challenges exercised by the prosecution were directed towards female jurors, and seven of the eight that were made were directed towards female jurors. And I am making a Wheeler challenge to that pattern of use of peremptory challenges.”
In response to the court’s query, the prosecutor stated she was not sure how many men she had excused. She stated, “I know at the end I excused three of them to allow three women to enter on the jury, knowing that those three female jurors would be on the jury, but preferring them over the men that I kicked off.”
The trial court stated: “I do not make the finding under Wheeler that there has been a pattern that developed, and I make that based on the fact that there are three women on this jury. We have three alternates, two of which are women. I further make the finding that as to the jurors that were challenged by the People, that she had a reasonable basis for making those peremptory challenges. [¶] Many of the women that were excused from jury service had personal issues that may have affected their ability to be fair in this case, and so I don’t find there is any kind of systemic exclusion of women by the prosecutor that would necessitate . . . explaining to the Court what her views were.”
“A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias - that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ - violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]
“The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]
“We review the trial court's ruling on the question of purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court's ability to distinguish ‘bona fide reasons from sham excuses.’ [Citations.]” (People v. Avila (2006) 38 Cal.4th 491, 541 (Avila).) For purposes of a Wheeler motion, gender, like race, may be the grounds for bias against an identifiable group. (People v. Macioce (1987) 197 Cal.App.3d 262, 280.) Thus, although Avila, supra, speaks in terms of race discrimination, it is equally applicable to instances of gender discrimination.
Defendant argues he presented a prima facie case of gender bias when he pointed out the fact that the prosecutor had used seven of her eight challenges against women. The prosecutor in fact only used six of her peremptory challenges against women. Defendant also states that the trial court decided the matter without the benefit of the United States Supreme Court’s decision in Johnson v. California (2005) 545 U.S. 162, 170 [162 L.Ed.2d 129, 139], which held that a defendant must show that the evidence is sufficient to permit the trial judge to draw an inference of impermissible group bias, but need not show it was more likely than not the challenge was based upon impermissible bias. People v. Cornwell (2005) 37 Cal.4th 50, 73 (Cornwell), a Supreme Court case decided after Johnson v. California, explained that regardless of the standard employed by the trial court, we review the record to resolve the legal question “whether the record supports an inference that the prosecutor excused a juror on the basis of race.”
Defendant also argues it was improper for the trial court to speculate about why the prosecutor excused the challenged jurors. He cites Johnson v. California, supra, which stated, “[t]he inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” (545 U.S. at p. 172 [162 L.Ed.2d at pp. 140-141].) However, Cornwell held that this cautionary language, “must be read in light of the high court's statement that a prima facie case is established when the ‘defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor's reasons - it should inquire of the prosecutor, as the high court directed. But there still is a first step to be taken by the defendant, namely producing evidence from which the trial court may infer ‘that discrimination has occurred.’ [Citation.]” (Cornwell, supra, 37 Cal.4th at pp. 73-74.)
We hold that the bare fact that the prosecutor used six of her eight challenges to strike women from the jury was insufficient, when considering the entire record, to raise a presumption of group bias. Four of the women had background or experiences that might have made them undesirable to the prosecutor. One was a rape victim who knew her rapist, and had been adopted out of foster care, as was the victim in this case. Her rapist had not been prosecuted. Another woman had a sister with two adopted children, and had served on a jury before. In describing her experience, she talked about having had one hold out juror who “knew” the defendant was guilty, and that the rest of the jurors had talked to her “for a long time” to explain the evidence to her. This potential juror’s prior experience, in which she apparently cast a vote favorable to the defense, was a sufficient gender-neutral reason for the prosecutor to excuse her. Another woman’s father had raped her sister. That excused juror also worked with special needs children. A fourth woman was an attorney and an ACLU member. The record on appeal contains no information on two of the excused women, other than their places of employment. However, the record does not contain the jury questionnaires. The questionnaires may well have contained information making those prospective jurors undesirable to the prosecution.
We also must consider that the defendant in this case was a male, and the victim a female. Thus, defendant was not in the group against which the prosecutor allegedly discriminated. Furthermore, three women were selected to be jurors, and all three of the alternates, one of which served as a juror, were female.
Defendant claims Juror two’s stepdaughter and mother had both been molested, yet she was seated without challenge. Actually, it was Juror one’s step granddaughter who was molested. He states Juror one’s gender “appears to be male although the record is not totally clear . . . .” We are unable to discern Juror one’s gender from our review of the record.
In light of all these circumstances, we agree with the trial court that defendant did not raise an inference of purposeful discrimination against women.
II
Prosecutorial Misconduct
Defendant claims the prosecutor committed misconduct in three of her arguments during closing. The first challenged remark is one the prosecutor made in response to the following argument of defense counsel:
“We heard testimony this morning that Mia wore a diaper. . . . In addition, to the astounding idea that [defendant] at over 50 years of age is going to start going into a diaper -- and I’ll talk more about that -- into a room with a child that has a bed wetting problem and sticking his face in there -- sorry, that’s the testimony.”
The prosecutor’s response was as follows:
“[Defense Counsel] said at one point something like why would [defendant] want to put his mouth in her crotch after she had a diaper on? . . . [¶] There are things in this world that [are] comfortable to ignore, that we feel safer and more secure because we don’t see it, and we don’t want to even hear about it. Do you remember a story a couple years ago where a 20-something-year-old gal was found overdosed? Although, I don’t know if that’s the right term because she tried to overdose, but she didn’t die. But she was found unconscious inside a hearse, and inside the hearse was a corpse.
The gal had written a letter. She’s later revived and actually interviewed several times regarding it. She had written a letter saying she overdosed because she liked to have sex with dead people. That she, in fact, had sex multiple times with the dead person in the car. That she worked at a mortuary, and that she had had sex with over 100 dead people. And all of that was true.
There are sick things out there that you and I wouldn’t understand for anything. There are people who like to have sex with animals. There’s an area of pornography dedicated to geriatric pornography, and it’s not meant for geriatric men. There is a fetish of every kind. The unimaginable’s out there. We don’t want to see it. We don’t want to hear about it. We wish it weren’t so, but guess what? There are sick people everywhere.
There are cases in our courthouse every single day. Every day a prosecutor meets with the defense attorney in some courtroom in this courthouse every day regarding child molest. Do you think they’re all 14 and 15? They’re not. Sometimes they’re three months, six months, a year, two years. Those children are sodomized, orally copulated. There’s full vaginal sex with infant girls by adult men. It is disgusting and it is horrifying.
All of those little girls, all of those little boys that are molested when they’re that young wear diapers. And guess what? There’s a market out there of child molesters who take that diaper off to commit those acts. [Defense counsel] wants you to believe that means, you know, who would do that? Well, you know what, who would have sex with dead people, and who would have sex with animals, and who would have sex with infant children? It’s disgusting, but doesn’t mean it didn’t or couldn’t happen. It just means [defendant] is that much more sick.”
Defense counsel also implied in his closing argument that Mia had been coached as to what to say, and that the case against the defendant was a campaign to appeal to the sympathies and prejudices of the jurors. In response to this, the prosecutor made the following argument:
“[A]ccording to [defense counsel] Detective Cockerton, Deputy Steindorf, Stephanie Linka, me, Rochelle Hao, we’re all a part of this conspiracy. You know, anytime . . . the truth comes to us, we try to suppress it if it ways that [defendant] didn’t commit this act. And we, you know, we react violently against any information that [defendant] may be innocent.
Like I get a toaster if I can go ahead and convict an innocent guy. Like that’s a real test of my skill. Well, guess what? I don’t get a toaster. Neither does Rochelle Hao, Detective Cockerton, Deputy Steindorf, or Stephanie Linka. We are not here to try to show that an innocent man committed a crime. We are here to report what happened. I’m not risking my career over a girl that I haven’t met until after the trial is started. [¶] . . . Our job is to call it like you see it.”
Finally, in response to defense counsel’s attack on the inconsistencies in Mia’s testimony, the prosecutor argued:
“She . . . hasn’t been able to see all the evidence. She doesn’t even have her own journal anymore because the police took it. And we tear her apart, and we tell -- [defense counsel] tells you to doubt her credibility that she’s lying. And, you know what, [defendant] sits there with his laptop every day typing, typing, typing all the stuff people are saying, tell his attorney all through jury selection, yeah, who is he going to keep, what question to ask next. Doesn’t -- I didn’t have to hear it. [¶] . . . [I]t doesn’t take a brain surgeon to figure out what he’s doing on his computer and the long conferences after each witness testified to see what question he thinks [defense counsel] should ask next. He’s got all the reports. He hears all the witnesses, and all he’s got to do is get up there and tell the story that doesn’t contradict all the other witnesses and the reports that he’s had forever.
See, there’s no accident Defendant’s testify last. They always do. Why? Because they get to sit here, and they get to watch every single witness, and they testify lastly. That there’s no chance that they’re going to be inconsistent with the witnesses that you’ve heard. And, in fact, they’re given the opportunity to conform their testimony to those witnesses and to these statements.”
Defense counsel made no objection to any of the above arguments. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless he asserted a timely objection and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823.) Defendant claims two exceptions to the requirement for an objection apply in this case.
We know witnesses are excluded during most trials by defense motion, but obviously defendants are never excluded during the trial.
First, he claims that no objection is necessary to preserve the issue on appeal when the prosecutor argues she would not have prosecuted the defendant were he not guilty. A prosecutor’s statement not based on legitimate inferences from the evidence that she has personal knowledge of a defendant’s guilt, or that she would not have prosecuted unless the defendant were guilty, is misconduct. (People v. Gioviannini (1968) 260 Cal.App.2d 597, 611.) Where such misconduct has been found, a number of cases have required reversal even in the absence of an objection. (People v. Conover (1966) 243 Cal.App.2d 38, 50, and cases cited therein.)
We find no misconduct here, because a prosecutor’s assertion of her personal belief in a defendant’s guilt is objectionable because it implies the prosecutor’s knowledge of guilt is based upon facts not in evidence. (People v. Kirkes (1952) 39 Cal.2d 719, 723-724.) In this case, the prosecutor’s remarks were aimed merely at countering defense counsel’s suggestion that the prosecutor and others who investigated the charges against defendant were conspiring to concoct a story to convict an innocent man. The prosecutor’s remarks did not indicate that she was aware of conclusive, but undisclosed, evidence of defendant’s guilt.
Citing People v. Kirkes, supra, defendant also argues the issue of prosecutorial misconduct is preserved on appeal where the objectionable statements were interspersed throughout closing argument such that repeated objection might have reinforced the prosecutor’s damaging assertions, and a series of admonitions would not have cured the harm. People v. Kirkes, supra, held that the exception to the rule requiring an objection and request for admonition arises “‘where the comment is of such a character that the error could not be cured and the harmful result would not be obviated by a timely admonition or instruction to the jury.’ [Citations.]” (39 Cal.2d at p. 726.) More recently the Supreme Court has explained that an objection is not necessary to preserve the issue for appeal if either a timely objection and/or a request for admonition would be futile. (People v. Hill, supra, 17 Cal.4th at p. 820 (Hill).)
In Hill, supra, the court found that defense counsel had been subjected to a “constant barrage” of unethical conduct, “including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods.” (17 Cal.4th at p. 821.) The court described the atmosphere of the trial as “poisonous” because of the trial court’s failure to “rein in” the prosecutor, and said that the defense counsel was placed on the “horns of a dilemma” because he risked incurring the wrath of the trial court by repeatedly objecting. (Ibid.) No such repeated or constant unethical conduct occurred here. Aside from the remarks we have determined were not misconduct, the prosecutor’s challenged argument was confined to two discrete subjects -- unnatural fetishes and the defendant’s ability to tell a consistent story because of his opportunity to hear all the evidence against him. This was not a case in which a timely objection would have been futile.
Defendant briefly states that trial counsel’s failure to object can only be explained by ineffective assistance of counsel, but does not further argue that his trial counsel rendered ineffective assistance. In any event, the failure to object rarely establishes incompetence. (People v. Ghent (1987) 43 Cal.3d 739, 772.) Where, as in this case, the record does not eliminate the possibility that counsel’s decision not to object “‘resulted from an informed tactical choice within the range of reasonable competence,’” a claim of ineffective assistance of counsel must fail. (People v. Jones (1997) 15 Cal.4th 119, 182, overruled on another point in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
DISPOSITION
The trial court is directed to amend the abstract of judgment to show that defendant was convicted on courts 1-7 of violating Penal Code section 288, subdivision (c)(1), and on counts 8-10 of violating Penal Code section 288, subdivision (b)(2). The trial court is further directed to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
We concur: NICHOLSON , J., BUTZ , J.