Opinion
D050843
7-1-2008
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO BRAVO MUZQUIZ, Defendant and Appellant.
Not to be Published
A jury convicted Francisco Bravo Muzquiz of assault with intent to commit sexual penetration by a foreign object (Pen. Code, §§ 220, 289); attempted sexual penetration by a foreign object (§§ 289, subd. (a), 664); false imprisonment by violence (§§ 236, 237, subd. (a)); and misdemeanor sexual battery (§ 243.4, subd. (e)(1)). Prior to trial, Muzquiz pled guilty to the charge of failing to register as a sex offender. (Former § 290, subd. (g)(1).) The trial court sentenced Muzquiz to four years imprisonment.
All further statutory references are to the Penal Code.
Former section 290, subdivision (g)(1) was renumbered as section 290.018, subdivision (a). (Stats. Stats. 2007, ch. 579, § 52.)
Muzquiz contends (1) that he was improperly convicted of both the greater offense of assault with intent to commit sexual penetration by a foreign object and the lesser included offense of attempted sexual penetration by a foreign object; (2) that insufficient evidence supports his conviction for (a) attempted sexual penetration by a foreign object, and (b) false imprisonment by violence; (3) that conviction for false imprisonment should be reversed because the trial court misspoke when giving an applicable jury instruction; and (4) the prosecutor committed misconduct by misstating the facts during closing argument.
The attorney general concedes that Muzquizs first argument has merit, and we agree. Muzquiz was improperly convicted of both the greater offense of assault with intent to commit sexual penetration by a foreign object and the lesser included offense of attempted sexual penetration by a foreign object. However, we conclude that Muzquizs remaining contentions lack merit. Accordingly, we reverse the conviction on the lesser included offense of attempted sexual penetration by a foreign object, and we affirm the remainder of the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of September 3, 2006, Gabriella R. was walking home while pushing her 22-month-old daughter in a stroller. Muzquiz approached Gabriella from behind and touched his hand to her buttocks through her clothing with a light slapping motion. Gabriella turned to look at Muzquiz and told him not to touch her again or she was going to scream and call the police. When Gabriella started walking away, Muzquiz attacked her by placing one of his arms around her from behind and across her chest, squeezing both of her arms. The force was enough to leave a bruise on Gabriellas arm. Muzquiz placed his other hand under Gabriellas skirt. With his fingertips, Muzquiz touched the part of Gabriellas underwear that covered her anus. Muzquiz applied pressure to Gabriellas anus, through her underwear for about three and a half seconds with his fingertips, causing Gabriella to feel burning pain. Gabriella defended herself by turning and hitting Muzquiz on his head with her closed fist. Muzquiz released Gabriella and ran away.
A man walking on the other side of the street observed part of the incident. The man followed Muzquiz as he fled, but Muzquiz was able to elude him. Police officers arrived shortly after Muzquiz fled. While Gabriella was talking to a police officer outside of her apartment, she noticed Muzquiz walking on the street and pointed to him. Muzquiz was arrested.
Muzquiz was charged with assault with intent to commit sexual penetration by a foreign object (§§ 220, 289) (count 1); attempted sexual penetration by a foreign object (§§ 289, subd. (a), 664) (count 2); false imprisonment by violence (§§ 236, 237, subd. (a)) (count 3); failing to register as a sex offender (former § 290, subd. (g)(1)) (count 4); and misdemeanor sexual battery (§ 243.4, subd. (e)(1)) (count 5). Prior to trial, Muzquiz pled guilty to count 4.
At trial, the jury heard testimony about a similar incident involving Muzquiz. In October 2004, Muzquiz approached a 16-year-old girl and her 12-year-old sister from behind when they were walking home. Muzquiz squeezed the buttocks of both girls. When the girls started yelling, Muzquiz grabbed the older girl by the arm and shook her around. When the younger girl started to hit Muzquiz, he hit back at her and then walked away.
The jury convicted Muzquiz on all counts. The trial court sentenced Muzquiz to four years in prison.
The trial court designated count 1 as the principal term with a sentence of four years, ordered the sentence for counts 2, 4 and 5 to run concurrently, and stayed the sentence on count 3 pursuant to section 654.
II
DISCUSSION
A. The Conviction on Count 2 Must Be Reversed Because It Is a Lesser Included Offense of Count 1
Muzquizs first argument is that he should not have been convicted of both assault with intent to commit sexual penetration by a foreign object (count 1) and attempted sexual penetration by a foreign object (count 2) because count 2 is a lesser included offense of count 1.
"A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act." (People v. Sanchez (2001) 24 Cal.4th 983, 987.) In this context, we apply the "elements test" to determine whether one offense is a lesser included offense of another. (People v. Reed (2006) 38 Cal.4th 1224, 1228.) "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) Put another way, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (People v. Lopez (1998) 19 Cal.4th 282, 288.) "The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given." (People v. Breverman (1998) 19 Cal.4th 142, 154.)
During in limine motions, the prosecutor took the position that count 2 was a lesser included offense of count 1, but the trial court rejected that position in favor of the view that count 2 was a lesser related offense to count 1. Accordingly, the jury was not instructed to treat count 2 as a lesser included offense to count 1.
Our Supreme Court has held that an assault with the intent to commit rape necessarily includes an attempt to commit the crime of rape. (People v. Ghent (1987) 43 Cal.3d 739, 757 ["`[A]n assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.] "An `assault with intent to commit a crime necessarily embraces an `attempt to commit said crime." [Citation.], "quoting People v. Rupp (1953) 41 Cal.2d 371, 382].) Similarly, "[a]ttempted oral copulation is a necessarily included offense of assault with intent to commit oral copulation," and "one cannot commit an assault with intent to commit oral copulation without also committing attempted oral copulation." (People v. Saunders (1991) 232 Cal.App.3d 1592, 1598.)
Based on this authority, the Attorney General concedes that "attempted sexual penetration by foreign object in count two was a necessarily included offense of assault with intent to commit sexual penetration by foreign object in count one." We agree. The application of the elements test establishes that attempted sexual penetration by a foreign object (§§ 289, subd. (a), 664), is a lesser included offense of assault with intent to commit sexual penetration by a foreign object (§§ 220, 289). Specifically, to convict Muzquiz of assault with intent to commit sexual penetration by force, the jury was required to find that "[w]hen [Muzquiz] acted, he intended to commit sexual penetration by force." Further, the jury was instructed: "To decide whether the defendant intended to commit sexual penetration by force please refer to Instruction which defines that crime." Thus, as shown by the jury instructions and confirmed by the case law cited above, the crime of attempted sexual penetration was necessarily included in the elements of the crime of assault with the intent to commit sexual penetration. Accordingly, count 2 is a lesser included offense of count 1, and Muzquiz should not have been convicted of both of those offenses.
In this case, even though Muzquiz twice touched Gabriellas buttocks, it is clear that the convictions on counts 1 and 2 were both based on the same act, as the jury was instructed that "Counts 1, 2, and 3, relate to the second phase of the incident to which Gabriella . . . testified."
Our Supreme Court has explained the proper remedy when a defendant is convicted of both a greater and a lesser included offense. "If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed." (People v. Moran (1970) 1 Cal.3d 755, 763 (Moran); see also People v. Cole (1982) 31 Cal.3d 568, 582 (Cole).) Accordingly, as the Attorney General concedes is the proper course, we reverse Muzquizs conviction on count 2, which is the lesser included offense.
B. Muzquizs Contention that His Constitutional Rights Were Violated Because the Jury Was Not Instructed that Count 2 Was a Lesser Included Offense of Count 1
Muzquiz presents a second argument arising out of the fact that the trial court did not treat count 2 as a lesser included offense of count 1. Muzquiz argues that his "federal and state constitutional rights to due process and a fair trial" were violated because "[t]he jury was never informed that the offense of attempted penetration with a foreign object was a necessarily included offense to the charge of assault with intent to commit sexual penetration with a foreign object." Muzquiz further argues that he "was prejudiced because he suffered felony convictions for both Count One and Count Two when by law he could only be convicted on one of those counts."
The Attorney General contends that we need not reach this second argument if we have already decided to reverse the conviction on count 2 based on Muzquizs first argument. In his reply brief, Muzquiz contends that we should nevertheless reach the issue. We agree with the Attorney General. By reversing the conviction on count 2 on the ground that Muzquiz could not be convicted of both the greater and lesser included offense, Muzquiz has received any relief that he would be due as a result of any violation of his constitutional rights arising out of the instructional error, and we thus need not reach the alternative ground for reversing that conviction.
Muzquiz argues in his reply brief that "[b]ecause of the instructional error it is not possible to know whether the jury would have convicted on the lesser included rather than the greater charge." We imply from this statement that Muzquiz is contending that as a remedy for the instructional error we should do something other than reverse count 2, such as to reverse both counts 1 and 2. We disagree.
As we have explained, case law establishes that when a defendant is convicted of both a greater and lesser included offense due to the fact that the jury was permitted to return a verdict on both the greater and lesser included offenses, the proper course is for the court to reverse the conviction on the lesser included offense. (Moran, supra, 1 Cal.3d at p. 763; Cole, supra, 31 Cal.3d at p. 582.) We have accordingly reversed count 2. Further, there is no basis to question the propriety of the conviction on the greater offense under the circumstances. As our Supreme Court has explained, when a jury has convicted on both greater and lesser included offenses, "reversal or vacation of the sentence for the [lesser] included offense, and dismissal of the count charging that offense, whether by the trial court or an appellate court, would not affect the integrity of the conviction and sentence for the greater." (People v. Tideman (1962) 57 Cal.2d 574, 582.)
C. Sufficiency of the Evidence to Support Convictions on Counts 1 and 3
Muzquiz contends that there was insufficient evidence to convict him of assault with intent to commit sexual penetration by a foreign object (§§ 220, 289) (count 1) and false imprisonment by violence or menace (§§ 236, 237, subd. (a)) (count 3).
"`In reviewing a challenge to the sufficiency of the evidence . . ., we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.] `The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412 (Martinez).) Significantly too, "`[i]f the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury." (People v. Love (1960) 53 Cal.2d 843, 850-851, italics added.)
1. Sufficiency of the Evidence that Muzquiz Committed Assault with the Intent to Commit Sexual Penetration by a Foreign Object
Muzquiz contends that the evidence was insufficient to convict him of assault with the intent to commit sexual penetration by a foreign object because there was insufficient evidence that he had an intent to sexually penetrate Gabriella. Muzquiz contends that the evidence establishes no more than that Gabriella felt Muzquizs fingers putting pressure on her anus because of the position of her body as she turned to get away from Muzquiz. Muzquiz argues, "When viewed from the totality of the evidence, it can be seen that [Gabriella] only felt pressure on her anus as she was turning to get away from [Muzquizs] grasp, and she opined that [Muzquizs] fingers pushed her anus because she fought back." As we will explain, we reject Muzquizs argument.
Gabriellas testimony was sufficient to allow a jury to conclude beyond a reasonable doubt that Muzquiz was attempting to sexually penetrate Gabriella with his fingers. Specifically, Gabriella testified that during the second incident, Muzquiz applied pressure in her anus for three and a half seconds, and that the pressure was strong enough to cause her a burning sensation of pain. Based on this evidence, the jury could reasonably infer that Muzquiz was applying pressure because he was attempting to sexually penetrate Gabriella.
We note that sexual penetration may occur through fabric. (Cf. People v. Ribera (2005) 133 Cal.App.4th 81, 85 [sodomy committed when defendants penis penetrated the victims anus through her underwear].)
Relying on Gabriellas testimony at the preliminary hearing as it was described at trial, Muzquiz argues that there is another explanation for the pressure that Gabriella felt on her anus, namely, that the pressure occurred because Gabriella was turning to try to get away from Muzquiz. Referring to her testimony at the preliminary hearing, defense counsel asked Gabriella, "[D]o you recall the question, `When he stuck his fingers there, did he push with those fingers? And you gave the answer, `A little bit because I fought back?" Gabriella answered, "Yes." According to Muzquiz, this testimony reasonably permits no other conclusion that that the Gabriella felt pressure on her anus only because she was resisting Muzquizs attack. We disagree for two reasons.
First, Gabriellas statement at the preliminary hearing, as read at trial, is ambiguous. Muzquiz interprets the statement to mean that Gabriella felt Muzquizs finger putting pressure on her anus because she fought back against Muzquiz. However, the statement could also be interpreted to mean that Gabriella felt pressure from Muzquizs finger only for "`a little bit," i.e., for a short duration, because she quickly fought back and was able to free herself. This second interpretation of Gabriellas ambiguous statement is reasonable, and is fully consistent with the jurys finding that Muzquiz pressed on Gabriellas anus because he intended to penetrate her.
Second, Gabriella was asked at trial whether she felt the pressure on her anus during the time that she was resisting the attack, and she stated that she did not. Defense counsel asked, "The second time that the man was grabbing your buttocks and you felt the pressure against the underwear or the cloth near your anus: when you turned to hit him, is that when you felt the pressure?" Gabriella answered, "No." This testimony provides a further reasonable basis in the record to reject Muzquizs contention that Gabriella felt pressure on her anus because she was turning to get away from Muzquizs grasp.
Muzquiz also contends the evidence of the incident in 2004 in which he touched the buttocks of the two girls as they walked home (the 2004 incident) supports his claim that he did not intend to sexually penetrate Gabriella. Muzquiz argues that because there was no evidence that he attempted sexual penetration during the 2004 incident, the only reasonable inference is that he also did not intend to sexually penetrate Gabriella. We reject this argument. The issue before us is whether the totality of the evidence at trial was sufficient to permit a finding that Muzquiz intended to sexually penetrate Gabriella. Although the jury could have viewed the 2004 incident as weighing in favor of a finding that Muzquiz did not intend to sexually penetrate Gabriella, it was not required to do so. As we have explained, "it is not within our province to reweigh the evidence." (Martinez, supra, 113 Cal.App.4th at p. 412.) Regardless of the weight a trier of fact might chose to give to the 2004 incident, we conclude that Gabriellas testimony contains sufficient evidence in itself to support a finding that Muzquiz intended to sexually penetrate Gabriella.
2. Sufficiency of the Evidence that Muzquiz Committed Felony False Imprisonment
Muzquiz argues that there was insufficient evidence to convict him of felony false imprisonment. False imprisonment is "the unlawful violation of the personal liberty of another." (§ 236.) It is punishable as a felony if, and only if, it is "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).) When a felony conviction for false imprisonment is premised on the "violence" involved, the term "violence" is defined as "`the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint." (People v. Babich (1993) 14 Cal.App.4th 801, 806, italics added; see also People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462 (Hendrix) ["Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint"].) Put another way, "violence in this context implies the use of force beyond that required for simple restraint." (Babich, at pp. 808-809.) Muzquiz argues that the evidence does not support a finding that he used force beyond what was necessary to restrain Gabriella.
We conclude that the evidence was sufficient for the jury to reasonably conclude that Muzquiz used force greater than necessary to effect the restraint. Specifically, Gabriella testified that Muzquiz squeezed her arm so hard that she developed a bruise. She further testified that Muzquiz put enough pressure on her anus with his other hand to cause burning pain. The pain caused by both of Muzquizs hands as he restrained Gabriella was sufficient to permit the jury to conclude that Muzquiz used force greater than necessary to keep Gabriella in place.
Muzquiz relies on three cases to argue that the evidence was not sufficient to support a conviction of felony false imprisonment. First, Muzquiz relies on Hendrix, supra, 8 Cal.App.4th 1458, in which the victim testified that the defendant grabbed her on the neck, pushed her onto the bed and began to choke her, pinning her down with his body. (Id. at p. 1460.) Hendrix held that because the facts could have supported a verdict on the misdemeanor, the trial court erred in not giving an instruction of misdemeanor false imprisonment as a lesser included offense. (Id. at p. 1462.) Hendrix is not applicable here because it does not discuss whether the conviction for felony false imprisonment was supported by substantial evidence. Second, Muzquiz relies on People v. Castro (2006) 138 Cal.App.4th 137. In Castro, the defendant "grabbed the victim and turned her around" and then "pulled her toward his car," which was "more than what was required to stop her and keep her where she was located," and thus provided sufficient evidence for a conviction of felony false imprisonment. (Id. at p. 143.) Castro is consistent with the verdict in this case. Here, as in Castro, Muzquiz used more force than was required because he caused pain and bruising to Gabriella. Third, Muzquiz cites People v. Matian (1995) 35 Cal.App.4th 480. In Matian, after the defendant sexually assaulted the victim, he grabbed her arm, yelled at her not to leave, and then glared at her and began to approach her each time she tried to leave. (Id. at p. 485.) The prosecution did not attempt to argue on appeal that the defendant used force greater than necessary to restrain the victim, but instead relied on the theory of menace. (Ibid.) Matian is not analogous to this case. The only physical contact restraining the victim in Matian was the defendants grabbing of her arm. Muzquiz, in contrast, did not merely grab Gabriellas arm. Instead he applied force both to her arm and her anus that was enough to cause pain and bruising.
D. Erroneous Jury Instruction on False Imprisonment
The trial court instructed the jury with respect to felony false imprisonment and, as a lesser included offense, misdemeanor false imprisonment. The jury convicted Muzquiz of felony false imprisonment (§§ 236, 237, subd. (a).) Muzquizs next argument is that the felony false imprisonment should be reversed because, according to the reporters transcript, the trial court misspoke while giving the jury instruction for misdemeanor false imprisonment. The jury received the correct written jury instruction for misdemeanor false imprisonment, based on CALCRIM No. 1242. The instruction stated:
"Misdemeanor False Imprisonment is a lesser included offense to the charge of False Imprisonment charged in Count Three.
"To prove that the defendant is guilty of this lesser included offense crime, the People must prove that:
"1. The defendant intentionally and unlawfully restrained, or detained, or confined a person;
"AND
"2. The defendants act made that person stay or go somewhere against that persons will.
"An act is done against a persons will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act.
"False imprisonment does not require that the person restrained or detained be confined in jail or prison."
However, according to the reporters transcript, the trial court misspoke while reading the last sentence of this instruction to the jury. The trial court stated, "False imprisonment does not require that the person be restrained or detained, be confined in jail, or imprisoned."
Muzquiz argues that the erroneous instruction violated his federal and state constitutional rights to a jury trial and due process. He argues that "[b]y instructing the jury that false imprisonment does not require that the person be restrained or detained, yet instructing that the defendants act made that person stay or go somewhere against their will, the trial court significantly lowered the prosecutions burden of proof for proving either felony or misdemeanor false imprisonment." Muzquiz contends that the error was prejudicial with respect to his conviction for felony false imprisonment.
We note that the jury received the correct oral and written instruction regarding felony false imprisonment, which stated that "[f]alse imprisonment does not require that the person restrained be confined in jail or prison."
Muzquizs argument fails because the error was harmless beyond a reasonable doubt with respect to the conviction for felony false imprisonment. (Chapman v. California (1967) 386 U.S. 18 (Chapman).) Our Supreme Court has ruled that "misreading instructions is at most harmless error when the written instructions received by the jury are correct." (People v. Box (2000) 23 Cal.4th 1153, 1212; see also People v. Prieto (2003) 30 Cal.4th 226, 255 ["the misreading of a jury instruction does not warrant reversal if the jury received the correct written instructions"]; People v. Andrews (1989) 49 Cal.3d 200, 216 ["The trial courts error in misreading [the instruction] was harmless. The court provided the jury with written copies of all the instructions, including an accurate version of [the misread instruction]"].) Here, the jury received accurate written instructions.
Because Muzquiz contends that federal constitutional principles are implicated, we assume for the purposes of our analysis that Chapman, supra, 386 U.S. 18, provides the appropriate standard for our harmless error review. However, in so doing, we express no opinion as to whether federal constitutional principles are in fact implicated by the facts presented.
Moreover, in determining whether the error was harmless we may also inquire whether the error "could not have been prejudicial in light of the other instructions given." (People v. Garceau (1993) 6 Cal.4th 140, 190.) Here, shortly before being given the incorrect oral instruction that "[f]alse imprisonment does not require that the person be restrained or detained, be confined in jail, or imprisoned," the jury was properly instructed that to provide misdemeanor false imprisonment "the People must prove that . . . [t]he defendant intentionally and unlawfully restrained or detained or confined a person." Significantly also, the erroneous instruction here concerned the lesser included offense of misdemeanor false imprisonment. However, the jury convicted on the greater offense of felony false imprisonment, and the instructions for that offense were all correct. Indeed, with respect to felony false imprisonment, the jury was instructed that "[f]alse imprisonment does not require that the person restrained be confined in jail or prison." Because the conviction on the greater offense made it unnecessary for the jury to reach a verdict on the lesser included offense, the jury would not have relied on the erroneous instruction for misdemeanor false imprisonment in reaching its verdict. In sum, in light of all of the instructions gizven by the trial court (including the correct written instruction) and the fact that the error was in the instruction for the lesser include offense, the trial courts mistake in reading the instruction for misdemeanor false imprisonment was harmless beyond a reasonable doubt.
In our harmless error analysis we may also focus on "whether, in light of the argument of counsel, the trial courts slight misreading of the instruction could have been prejudicial." (People v. Crittenden (1994) 9 Cal.4th 83, 138.) In his closing argument, the prosecutor stressed that a finding of false imprisonment requires that "the defendant intentionally and unlawfully restrained, confined, or detained someone by violence or menace." Thus, by restating that false imprisonment required that the victim be restrained, confined or detained, "[r]ather than exacerbating the trial courts misreading, this argument served to reinforce the correct written version of the instruction." (Id. at p. 139.) The content of the closing argument thus contributes to our conclusion that the error was harmless.
E. Muzquizs Claim of Prosecutorial Misconduct During Closing Argument
Muzquiz contends that the prosecutor committed misconduct during closing argument by purportedly misstating the evidence. Specifically, Muzquiz contends that the prosecutor improperly and incorrectly stated that Gabriella "resisted and . . . fought back. . . and she prevented further penetration from happening." Muzquiz argues that this was an improper statement "because [Gabriella] testified that [Muzquiz] pressed a little on her anus because she fought back." He also argues that the statement was improper because by stating that Gabriella prevented "further penetration from happening," the prosecutor was incorrectly representing that some penetration had occurred.
Muzquiz also objects to several other similar statements that the prosecutor made during closing argument and rebuttal. These statements include the following: "The defendant was pushing his fingers to get in and didnt get in because she was resisting, because she was squirming. She was fighting and he wasnt able to get through"; "Its just you didnt get in because the victim was resisting"; and "Counsel says, oh, its her twisting that forced the fingers to go whether they did. It was him pushing and pulling to get the fingers where he was trying to get them."
Prosecutorial misconduct exists "`under state law only if it involves "`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).) "`[W]hen 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. Ochoa (1998) 19 Cal.4th 353, 427 (Ochoa).) A reviewing court must keep in mind that "`"[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom" [citation], and that the prosecutor `may "vigorously argue his case" . . ., "[using] appropriate epithets warranted by the evidence."" (People v. Welch (1999) 20 Cal.4th 701, 752-753.) In more extreme cases, a defendants federal due process rights are violated when a prosecutors improper remark "`"`infect[s] the trial with unfairness,"" making it fundamentally unfair. (Earp, at p. 858.)
We will address the issue of prosecutorial misconduct only if it has been properly preserved for appeal. The general rule stated by our Supreme Court is that "`[t]o preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition . . . ." (Earp, supra, 20 Cal.4th at p. 858; see also Ochoa, supra, 19 Cal.4th at p. 427 ["`As a general rule 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"].) However, several exceptions exist. "A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if `"an admonition would not have cured the harm caused by the misconduct." [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill).)
Defense counsel did not object to the statements that Muzquiz now claims to constitute prosecutorial misconduct, and none of the exceptions to the general rule requiring an objection are applicable here. Although Muzquiz argues that an objection would have been futile, nothing in the record supports his argument. Further, if defense counsel had objected and asked for an admonition, the jury could have been admonished to disregard the prosecutors alleged misstatements of fact. Accordingly, we conclude that because defense counsel did not object to the statements that Muzquiz now assigns as prosecutorial misconduct, the issue is not preserved for appeal.
Contrary to Muzquizs contention, the situation here is nothing like Hill, supra, 17 Cal.4th 800, where the prosecutors "continual misconduct, coupled with the trial courts failure to rein in her excesses, created a trial atmosphere so poisonous that [defense counsel] was thrust upon the horns of a dilemma. On the one hand, he could continually object to [the prosecutors] misconduct and risk repeatedly provoking the trial courts wrath, which took the form of comments before the jury suggesting [defense counsel] was an obstructionist, delaying the trial with `meritless objections" or "could decline to object, thereby forcing defendant to suffer the prejudice caused by [the prosecutors] constant misconduct." (Id. at p. 821.) Hill concluded, under the unique circumstances presented, that defense counsels failure to object to the specific instance of prosecutorial misconduct did not prevent review of the issue on appeal. (Id. at p. 822.) The unique facts of Hill are not present in this case. The trial atmosphere was not "poisonous." Although defense counsel could easily have objected, she did not interpose any objections to the allegedly objectionable statements that Muzquiz identifies on appeal, and thus counsel came nowhere near to appearing like an obstructionist. Further, unlike in Hill, there is no indication in the record that the trial court was hostile to proper objections raised by defense counsel.
If, however, we were to reach the merits of Muzquizs claim of prosecutorial misconduct, we would point out, as we have in another portion of this opinion, that the evidence simply does not support Muzquizs theory that the only reason Gabriella felt pressure on her anus was because she was turning to fight with Muzquiz.
DISPOSITION
The conviction on count 2 is reversed. In all other respects, the judgment is affirmed. The trial court is directed to modify the abstract of judgment accordingly and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.