Opinion
G052279
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO DOMINGUEZ MONROY, Defendant and Appellant.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12CF3718) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant, Gustavo Dominguez Monroy, of 11 counts of lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a); counts 1-8 & 10-12); furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (a); count 14) and unlawful sexual intercourse (§ 261.5, subd. (c); count 15.) The jury also found true as to counts 4 through 8, 11, and 12 the special allegation defendant had substantial sexual conduct with a child (§ 1203.066, subd. (a)(8).) The court sentenced defendant to prison for an aggregate term of 26 years, 8 months.
All statutory references are to the Penal Code unless otherwise stated.
Defendant contends the prosecutor engaged in prejudicial prosecutorial misconduct during closing argument by (1) lessening the burden of proof in arguing the jury should decide the case on "what's reasonable to believe" and (2) asking the jury to put itself in the victim's position and to imagine what the victim experienced. We agree the prosecutor committed misconduct. However, defendant forfeited the issue by failing to object when an admonition to the jury would have cured the harm. Further, the error was harmless given the overwhelming evidence of defendant's guilt. Finally, we disagree with defendant that his counsel's failure to object to the prosecutor's misconduct constituted ineffective assistance of counsel. Accordingly, we affirm.
FACTS
In 2000 defendant married A.R. (mother) who had a three-year-old daughter (the victim). The victim eventually came to view defendant as her father and called him "Dad." Defendant and mother also had a biological daughter, and the family lived together, moving several times. At times, there were two older sisters and a brother that lived with the family.
Between 2002 and 2007, the family spent most of that period living at the Sandalwood Mobile Home Park. When the victim was about six years old, defendant grabbed her buttocks. The victim thought the grab seemed different from when she was spanked, and it "didn't feel right." She told mother, but mother thought she was talking about a spanking. After defendant grabbed the victim's buttocks, he began engaging in increasingly sexual conduct. He touched her breasts and put his fingers in her vagina. He also tried to put his penis in her vagina. The victim said it hurt, and she tried to push him off. He made the victim touch his penis with her hands and mouth, and he put his mouth on her vagina. He also licked and kissed her breasts.
When the victim was seven years old, defendant began having sexual intercourse with her. Once defendant tried to place his penis between her buttocks, but she was able to "squirm" away.
When the victim was eight years old, defendant saw her laying on her bed with her buttocks sticking up and later told her he wanted her in that position. The victim saw a white substance come out of defendant's penis, but she could not remember whether it was solid or liquid. The victim estimated defendant put his fingers in her vagina a few hundred times during the time they were living at Sandalwood and that intercourse and oral sex occurred more than once. She never told anyone what was happening, because she was afraid of defendant, and he was stronger than she was. She was also worried it would cause problems for the family and she did not know where they would go. After a while she got used to the abuse.
The family then moved to a house on Raitt Street. Defendant was working and had to leave early in the mornings, but on approximately 10 occasions he entered the victim's bedroom before he left for work and touched her vagina. The victim felt uncomfortable, shocked, and paralyzed.
The family next moved to a house near Washington Avenue. On more than one occasion, defendant entered the bedroom before work and touched the victim's breasts. She was about 11 years old at this time.
The family next moved to Fifth Street. The victim and her sister slept in the living room. At this location, defendant touched her vagina and breasts in the early mornings. On at least one occasion he put his mouth on the victim's vagina.
In November 2007, the victim was sleeping when defendant began taking her pants off and touching her vagina. Mother entered the room and saw defendant in bed with her daughter. She was undressed from her waist down. Defendant stood up quickly and said he was tying his shoes. Mother asked defendant, "Why? Why did you do it?" but defendant did not answer. He stayed home from work that day. Mother was afraid to call the police because defendant threatened her and would humiliate her, but she called a couple of days later. Defendant hit mother and told her not to say anything; otherwise something would happen to mother and her daughters. The victim spoke with police, but she told them nothing happened, because she was afraid she might be taken away from mother and was afraid of change. Defendant did not touch her again for several years.
By late 2012, the victim was 16 years old, and the family was living at the Bentley Parke Apartments. In November, defendant told the victim he still had feelings for her. He told her he would get her an iPhone if she would do "certain things" and have sex with him in a hotel for a day. He said he just wanted one more time with her and then he would not bother her any more.
Sometime between December 1 and December 22, 2012, defendant was sitting in his van outside the apartment and mother sent the victim to ask defendant for money. Defendant told her to get into the van, then grabbed her forcibly, put his hand down her pants and started touching her vagina. Defendant told her she "had a lot of hairs" and it was "different from when he used to do it back then." She squirmed, pushed and hit him. He pulled up the victim's shirt and grabbed and kissed her breasts.
On December 23, 2012, defendant was giving the victim a ride to visit a friend, but the friend cancelled at the last minute. Defendant had planned to have sex with the victim for a whole day but said they "might as well do it right now because your mom is at church." Defendant parked at a hotel, but the victim refused to go in. Defendant was still insisting and the victim was crying and fed up and tired of him insisting. She suggested they have sex in the car. They ended up going back to the apartment. Defendant wanted time to get erect, but she told him to do it fast and get it over with. They had sex in the victim's bedroom. Defendant later told her they only had sex for two minutes and they had agreed to two or three hours so it did not count and they needed to do it again. The victim denied ever agreeing to have sex with defendant for two or three hours. Defendant never bought the victim an iPhone.
On December 27, 2012 the victim was crying and told mother defendant raped her. When mother asked defendant about it, he initially denied it but then admitted it. Mother called the police. Defendant left before they arrived and called mother while the police were there saying he had already bought a ticket to Mexico. Defendant was later arrested. During closing argument, the defense conceded defendant told police he had sexual relations with the victim, but he denied committing any of the other sexual offenses.
DISCUSSION
The Prosecutor Committed Misconduct
Defendant argues counts 1 through 13 must be reversed due to prosecutorial misconduct (1) in describing the reasonable doubt standard as "what's reasonable to believe" and (2) in asking the jury to imagine themselves as the victim. We agree the prosecutor committed misconduct.
The jury found defendant not guilty of counts 9 and 13. --------
"'When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.'" (People v. Jablonski (2006) 37 Cal.4th 774, 835 (Jablonski ).) "'Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.'" (Ibid.)
1. "What's Reasonable To Believe"
"[J]udges and advocates have been repeatedly admonished that tinkering with the explanation of reasonable doubt is a voyage to be embarked upon with great care." (People v. Centeno (2014) 60 Cal.4th 659, 671 (Centeno).) A prosecutor's misstatement of the reasonable doubt standard is misconduct. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268-1269 [prosecutor's use of Statue of Liberty puzzle along with suggestion of quantitative measure of reasonable doubt combined to convey impression of lesser standard of proof than constitutionally required proof beyond a reasonable doubt].)
Defendant urges us to follow Centeno. In Centeno, the prosecutor used a diagram showing the boundaries of California and urged the jury to convict based on a "reasonable" view of the evidence. (Centeno, supra, 60 Cal.4th at p. 662.) The prosecutor argued, "'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' . . . She continued: 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.'" (Id. at pp. 671-672.)
Our high court found the prosecutor's argument "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 671.) The prosecutor left the jury with the impression that as long as her interpretation of the evidence was reasonable the People had met their burden. (Id. at p. 672.) "These remarks clearly diluted the People's burden." (Id. at p. 673.)
The prosecutor's remarks in this case are equally troubling. Here during the initial closing argument the prosecutor argued, "Ultimately, just like a lot of things in life, this case comes down to what you believe. And in order to determine what you believe in this case, it's going to depend on who you believe. It's going to depend on what you find reasonable. That's an important word. Reasonable to believe based on the totality of the evidence, and applying your common sense, and your life experience to that evidence." The prosecutor also said, "But when you think about this case, what's important to think about is not just what you believe or what is reasonable to believe; right? Because you're not going — and like people don't make decisions off illogical or unreasonable facts. You make decisions based off your common sense . . . ."
During rebuttal, the prosecutor argued, "The defense also mentioned reasonable doubt and stated it's an abiding conviction. You have no reasonable doubt, and you have to be certain about what you know. [¶] I'm going to be the first one to tell you that unless a person is there watching this molest as it's going on, there's no way to be certain. That's why in the actual jury instruction that you get for the burden of proof, you're not going to see anything about that. What you're going to get is a simple statement that says that proof beyond a reasonable doubt is proof that leaves you with an abiding conviction, standing belief, something you believe in, that the charge is true. [¶] The evidence need not eliminate all possible doubt. The law is acknowledging that. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. That's why it goes back to what's reasonable to believe based on your common sense and life experience." (Italics added.) Also, "The evidence has been presented. It is what it is. I do trust that you do have common sense, and I do trust that you do have life experience and use that in evaluating the evidence and in determining what is reasonable to believe. It's not about possibilities. It's about reasonable. What's reasonable to believe. [¶] Is it reasonable to believe that a 16-year-old girl who has never been molested before in her life has a father that's the salt of the earth, been nothing but a great father to her for 16 years pretty much to that point, is all of a sudden going to say in January of 2012, 'Dad, get me an iPhone and have sex with me. I want your penis, Dad, in my vagina or else I'm going to tell mom that you want to have sex with me,' which the defendant ended up doing anyway?" (Italics added.)
Defendant argues the prosecutor linked his description of reasonable doubt to the extensive arguments regarding reasonableness and common sense. "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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.'" (Centeno, supra, 60 Cal.4th at p. 667.)
We cannot discern a meaningful distinction between the Centeno prosecutor's reasonableness argument (words like, "Is it reasonable to believe there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child?") and the reasonableness argument made by the prosecution in this case (words like, "Is it reasonable to believe that a 16-year-old girl who has never been molested before in her life has a father that's the salt of the earth, been nothing but a great father to her for 16 years pretty much to that point, is all of a sudden going to say in January of 2012, 'Dad, get me an iPhone and have sex with me. I want your penis, Dad, in my vagina or else I'm going to tell mom that you want to have sex with me'"). The prosecutor committed misconduct because the closing argument remarks had the potential to dilute the People's burden of proof.
The People argue People v. Romero (2008) 44 Cal.4th 386 is analogous. In Romero, the prosecutor asked "jurors to decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable.'" (Id. at p. 416.) The court found this argument did not lessen the prosecution's burden of proof. (Ibid.) However, Romero is not controlling on the issue. Romero involved the defendant's automatic appeal from a death sentence. The Supreme Court affirmed the judgment in a 44-page opinion that addressed seven legal challenges. Within the opinion, only one paragraph contained the quoted language. (Id. at p. 416.) The sub-issue was embedded in a discussion of defendant's challenge to several jury instructions. (Id. at pp. 415-416.) Romero did not include a direct attack on the prosecution's closing argument.
The People also argue we should follow People v. Cortez (2016) 63 Cal.4th 101. In Cortez, the prosecutor stated: "'The court told you that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt. Basically, I submit to you what it means is you look at the evidence and you say, "I believe I know what happened, and my belief is not imaginary. It's based in the evidence in front of me."'" (Id. at p. 130.) The court found no misconduct because the trial court properly defined the reasonable doubt instruction (id. at p. 131); the court instructed the jury if the attorneys' comments on the law conflicted with jury instructions, the jury must follow the instructions; defense counsel emphasized jury instructions on reasonable doubt (id. at p. 132); the prosecutor referred the jury to instructions on reasonable doubt (ibid.); and the challenged statement was a brief, isolated remark (id. at p. 133).
Significantly, here the prosecutor's remarks cannot be characterized as brief, isolated remarks. Instead the prosecutor made numerous references to the concept of what is reasonable to believe. We count eight instances. This alone distinguishes the instant case from Cortez, supra, 63 Cal.4th 101. (See Centeno, supra, 60 Cal.4th at p. 667 [prosecutor's remarks viewed in context of whole argument].)
The prosecutor's actions in this case unduly risked misleading the jury about the standard of proof. Defendant has established the prosecutor committed misconduct in urging the jury to decide the case based on "what's reasonable to believe."
2. Asking the Jury to Put Itself in the Victim's Position and to Imagine What the Victim Experienced
"There is a tactic of advocacy, universally condemned across the nation, commonly known as 'The Golden Rule' argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim." (People v. Vance (2010) 188 Cal.App.4th 1182, 1188.) Thus, in Vance, the Court of Appeal reversed a conviction for first degree murder because the prosecutor committed misconduct in asking the jury to view the crime through the eyes of the victim during the guilt phase of trial. (Id. at p. 1192.)
Here during closing argument, the prosecutor argued, "She got used to the defendant sexualizing her and she even testified 'it began to feel normal.' Can you imagine being seven, eight, nine, ten, eleven years old, a girl, okay, or if this was a boy, a boy, who had been sexually molested to such an extent that that becomes your norm? Not playing ball. Not shooting hoops with your dad. Not playing with a doll house. Not going to the beach. But having your father put his penis in your vagina. Have [your] father put his tongue in your vagina. Having your father guide your head towards his penis so you could suck it. That became her norm."
The prosecutor improperly appealed to the passions of the jury in urging them to imagine being a young child and having the norm in life be father's placing his penis and tongue in your vagina and guiding your head towards his penis.
Forfeiture
Even though we agree the prosecutor committed misconduct in two distinct ways, the issues were forfeited, because defense counsel failed to object when an admonition would have cured any harm.
Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The reason for this rule is that "'[i]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.'" (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 185, fn. 1.) "[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error." (People v. Kennedy (2005) 36 Cal.4th 595, 612, disapproved on a different ground in People v. Williams (2010) 49 Cal.4th 405, 458-459.)
The rule applies to arguments of prosecutorial misconduct. In general "'"'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.'"'" (People v. Young (2005) 34 Cal.4th 1149, 1184-1185.) In the absence of a timely objection the claim is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
Defendant contends an admonition would not have cured the harm. We disagree. Nothing in this record indicates an objection would have been futile. A simple instruction to the jury reminding them of the proof beyond a reasonable doubt standard and telling them not to imagine themselves as a victim would have sufficed to neutralize any harm from the prosecutor's improper arguments. (People v. Price (1991) 1 Cal.4th 324, 454 [court's prompt and forceful response to prosecutor's misconduct sufficient to prevent any reasonable juror from being influenced by remark in manner adverse to defendant].)
Defendant Did Not Suffer Prejudice
Even if defendant had not forfeited the issue on appeal, the error was harmless, because the evidence of defendant's guilt was overwhelming. (People v. Barnett (1998) 17 Cal.4th 1044, 1133 ["Even assuming for purposes of argument that the prosecutor's actions constituted misconduct, we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence"].) The victim testified at length to what defendant did to her beginning at the age of six and continuing and escalating through the victim's teenage years. There is no argument on appeal the jury lacked substantial evidence to reach its conclusion defendant was guilty of the offenses for which he was convicted. Moreover, "[i]t has often been emphasized that arguments of counsel 'generally carry less weight with a jury than do instructions from the court.'" (Centeno, supra, 60 Cal.4th at p. 676.) Here, the court instructed the jury orally and in writing it must follow the law as the judge explained it even if they disagreed with it. The court instructed if the attorneys' comments on the law conflicted with the court's instructions, the jury must follow the instructions.
Jurors are presumed to be intelligent and capable of understanding instructions and applying them to the facts of the case. (People v. Lewis (2001) 26 Cal.4th 334, 390.) Here the jury was given CALCRIM No. 220 on reasonable doubt orally and in writing. The instruction reads, "The fact that 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 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."
Given the jury was properly instructed and the overwhelming evidence of defendant's guilt, on this record, defendant was not prejudiced by the prosecutor's misconduct in asking the jurors to decide the case on "what's reasonable to believe" and to imagine themselves as childhood victims of repeated sexual abuse.
Defense Counsel Did Not Render Ineffective Assistance
Finally defendant argues to the extent an objection to the prosecutor's closing argument was required, defense counsel rendered ineffective assistance of counsel. The benchmark for evaluating a claim of ineffective assistance is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686.) A defendant alleging ineffective assistance of counsel must meet a two-pronged test: (1) defendant must show counsel's performance was deficient and (2) defendant must show he was prejudiced by the deficient performance. (Id. at p. 687.)
Here we need not decide whether counsel's performance was deficient, because we have already found defendant has not suffered prejudice. (People v. Camino (2010) 188 Cal.App.4th 1359, 1377 [court need not address both components of ineffective assistance inquiry if defendant makes insufficient showing on one]; Strickland v. Washington, supra, 466 U.S. at p. 691 ["An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment"].)
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.