Opinion
G054679
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. AMADOR RAMIREZ, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Laura Baggett, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF2156) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Amador Ramirez was convicted of multiple counts of committing lewd acts against a child under 14 years of age. Defendant raises two claims of error on appeal. We reject both and therefore affirm.
First, defendant claims the prosecutor misstated the law regarding voluntary intoxication during closing argument. We reject defendant's argument because he failed to object to the alleged misstatement in the trial court, the argument did not contain an error of law, and the admittedly correct jury instructions cured any prejudice.
Second, defendant claims the trial court interfered with the jury's deliberations. Again, defendant failed to object in the trial court. Further, there was no error because the trial court's statements merely addressed scheduling, and did not place any time restraints on the jury.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Because of the limited nature of the issues on appeal, we provide an abbreviated summary of the facts of the offenses.
In April 2014, four-year-old B.T. reported to her father, G.T., that defendant had "touched me all over." G.T. and defendant's son, Jose Ramirez, confronted defendant, who initially denied B.T.'s claims. At the request of the investigating police officers, G.T. placed a pretext phone call to defendant. During the recorded conversation, defendant admitted touching B.T.
Defendant was later interviewed on two occasions by the police, once at his home and once at the police station. During the first interview, defendant denied touching B.T., but claimed she had touched him. During that interview, defendant denied he had been drinking on the day of the offenses.
During the second interview at the police station, defendant admitted having committed multiple lewd acts against B.T.
Defendant was charged with two counts of lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a); counts 1 and 2), and two counts of sexual penetration with a child 10 years of age or younger (id., § 288.7, subd. (b); counts 3 and 4). A jury convicted defendant of all charges. The trial court sentenced defendant to 15 years to life in prison. Defendant timely filed a notice of appeal.
DISCUSSION
I.
PROSECUTORIAL MISCONDUCT
A.
Standard of Review
Defendant contends the prosecutor engaged in misconduct during his trial. "[S]tate law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and '"it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."'" (People v. Davis (2009) 46 Cal.4th 539, 612.) It is misconduct for a prosecutor to misstate the law in closing argument. (People v. Gray (2005) 37 Cal.4th 168, 217.) "When a claim of misconduct is based on the prosecutor's comments 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. Thompson (2010) 49 Cal.4th 79, 121.)
B.
Complained-of Argument
The prosecutor's closing argument included the following: "[I]n terms of the intoxication. You can look at the defendant's memory. You can look at the things that he is able to describe. Whether or not the witnesses said that he was acting pretty normal for him. You can look at those as the surrounding circumstances of what his intoxication level really was."
The prosecutor continued: "You're going to receive an instruction on voluntary intoxication. You first have to decide that he was truly impaired. And I think the evidence in this case shows that he wasn't truly impaired. Based on Jose [Ramirez]'s testimony, statements from defendant, his memory of the circumstance. [¶] So you decide whether or not he had mental impairment. If so, it's not an excuse and not a defense. It is something that you can consider, but it has to make sense. And then you can only consider it as to specific intent. [¶] And that doesn't mean that somebody displayed poor judgment, right? Because you can get intoxicated and display poor judgment. It doesn't mean that you didn't mean what you did. . . . [¶] So it doesn't mean you're not intending to do what you want to do. Sometimes alcohol, yes, does allow people to do what's in their hearts already. They might act out on thoughts they have when they are intoxicated. But it doesn't mean they didn't mean to do it."
In rebuttal, the prosecutor argued: "The defendant was completely aware of his surroundings. He knew details. This man can recall events. And you know that his memory of those events are valid, because they are corroborated by the details that B[.T.] gives and by the details that G[.T.] gives. [¶] So this is not somebody who is out of his mind, did not know what he was doing. This is something that Jose [Ramirez] came in and said he was competent to have a conversation right then. His reactions were appropriate under the circumstances. And he was competent to have a conversation again later that night. That is not somebody who is intoxicated that they don't know what they are doing. He knew exactly what he was doing."
C.
Defendant Failed to Object at Trial
Defendant's trial counsel did not object at trial to the challenged portion of the prosecutor's argument. "To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct, unless an admonition would not have cured the harm." (People v. Davis, supra, 46 Cal.4th at p. 612.) "'The objection requirement is necessary in criminal cases because a "contrary rule would deprive the People of the opportunity to cure the defect at trial and would 'permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.'"'" (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081.)
Defendant contends that any objection to the prosecutor's argument regarding voluntary intoxication would have caused more harm by calling more attention to the argument and making the prejudice worse. However, he offers no evidence or reasonable inferences that an objection would have failed to cure the potential harm of prejudice. Therefore, defendant forfeited his prosecutorial misconduct claim.
D.
No Prejudicial Error
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . ." (Pen. Code, § 29.4, subd. (b).) A defendant is entitled to a voluntary intoxication instruction only when there is substantial evidence that (1) the defendant was intoxicated, and (2) the defendant's intoxication affected his or her "'actual formation of specific intent.'" (People v. Williams (1997) 16 Cal.4th 635, 677; see People v. Ivans (1992) 2 Cal.App.4th 1654, 1661 ["an intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state"].)
All of the crimes with which defendant was charged are specific intent crimes. (People v. Olivas (2016) 248 Cal.App.4th 758, 770 [Pen. Code, § 288 requires commission of offense with specific intent to gain sexual arousal or gratification]; People v. Ngo (2014) 225 Cal.App.4th 126, 156-157 [Pen. Code, § 288.7, subd. (b) requires commission of offense with specific intent to gain sexual arousal, gratification, or abuse].)
Here, evidence was offered that defendant was an alcoholic who was often drinking. G.T. testified that on the day of the offenses, he did not see defendant drinking, that defendant was not slurring his speech, that defendant understood G.T. when G.T. talked to him, and that G.T. would not have left his children with defendant if G.T. did not believe defendant was able to watch them. Defendant's son did not observe defendant drinking the day of the offenses, and testified he did not notice defendant slurring his speech, although his eyes were droopy and red. An expert witness for the defense testified that defendant suffers from alcohol abuse disorder; that diagnosis was based solely on what defendant reported to the expert about his past drinking. During his police interview, defendant himself claimed he had not been drinking on the day of the offenses. There was no evidence of defendant's voluntary intoxication on the day of the offenses.
The prosecutor's comments were an accurate statement of the law concerning voluntary intoxication. When considered in context, these comments demonstrate that the prosecutor correctly argued voluntary intoxication as it relates to specific intent. (See People v. Cortez (2016) 63 Cal.4th 101, 130-131 ["to find prosecutorial error, we must view the challenged statements in the context of the entire argument and the jury instructions to determine whether there was a reasonable likelihood the jury understood or applied the comments in an improper or erroneous manner"].) The prosecutor noted that the evidence and the application of voluntary intoxication required a two-step analysis: (1) whether there was any evidence of voluntary intoxication; and (2) whether this intoxication prevented defendant from forming the specific intent required for the crimes charged. Accordingly, the prosecutor's statement that "[voluntary intoxication is] not an excuse and not a defense," is not a misstatement of the law, when considered in context with all of her other comments. (See People v. Forrest, supra, 7 Cal.App.5th at p. 1083 ["prosecutor's argument appropriately emphasized the evidence showing that despite his voluntary intoxication appellant actually had the requisite mental state for first degree murder."]) Because the prosecutor correctly argued the law of voluntary intoxication as it related to the facts of this case, there was no error and defendant's claim fails.
Even if there had been any error in the prosecutor's argument, the jury instructions ensured defendant suffered no prejudice. The jury was instructed with CALCRIM No. 3426 on voluntary intoxication as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication in only a limited way: You may consider that evidence only in deciding whether the defendant acted with the specific intent required in counts 1 through 4. . . . [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance, knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charges in counts 1 through 4[,] the People have the burden of proving beyond a reasonable doubt that the defendant acted with a specific intent. If the People have not met this burden, you must find the defendant not guilty of counts 1 through 4. [¶] You may not consider evidence of voluntary intoxication for any other purpose." The trial court correctly instructed the jury regarding voluntary intoxication, and we presume the jury followed that instruction. (People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Forrest, supra, 7 Cal.App.5th at p. 1083.)
II.
INTERFERENCE WITH DELIBERATIONS
A.
Trial Court's Statements Regarding Scheduling
Before the jury's deliberations began on a Thursday afternoon, the trial court told the jury:
At the Attorney General's request (to which defendant did not object), we take judicial notice that January 12, 2017 was a Thursday, and that January 16, 2017 was Martin Luther King, Jr., Day, a national holiday. (Evid. Code, §§ 451, subd. (f), 452, subd. (h).) --------
"All right. Before I have the clerk swear in the bailiff to take charge of you, let's talk a little bit about scheduling. It's almost 2:30. When a jury is deliberating they take breaks any time they like, for . . . how long they like. You just tell the bailiff we're going to be gone for 15 minutes, or whatever you want to do. [¶] We normally stop at 4:30. Occasionally jurors feel they are very close and want to go a little past 4:30. If you think you're in that situation, we need to know by about 4:00, because people have carpools and other things that have to be rearranged if we go past 4:30. So that's an option. [¶] The other option you want to consider is do you want to deliberate tomorrow. I don't [want] to welsh on the deal. I told you that you would be free on Fridays and you may have made important, you know, arrangements, doctors appointments, whatever it might be. That's a deal. But occasionally despite that, juries would like to deliberate on Friday. If everyone agrees to that, that's fine. We can accommodate that. If not, you'd be back on Tuesday, because Monday is Martin Luther King Day, at 9:00."
The jury began deliberating at 2:29 p.m. At 3:20 p.m., the jury notified the bailiff that they had reached a verdict.
B.
Defendant Failed to Object
Defendant did not object to the trial court's statement to the jury regarding scheduling, and therefore forfeited any claim on appeal that the court interfered with the jury's deliberations. "Because defendants did not object to the trial court's comments regarding scheduling, they have forfeited their state law claim that it interfered with the jury's deliberations and coerced a verdict. [Citation.] They also have forfeited their related constitutional claims." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038.)
C.
The Trial Court Did Not Interfere with Deliberations
Even if we were to reach the merits of the issue, we would conclude the trial court did not interfere with the jury's deliberations. A trial court may not place time pressure or time limits on a jury's deliberations. (People v. Anderson (1990) 52 Cal.3d 453, 469.)
The holding in People v. Gurule (2002) 28 Cal.4th 557 is controlling. In that case, the defendant's trial had been conducted Monday through Thursday, with Fridays off. (Id. at p. 632.) Closing arguments finished on a Thursday. (Ibid.) "[T]he trial court inquired whether it would be inconvenient to begin deliberations the next day. The court explained it would instruct the jury at 9:00 a.m., and then the jury would retire to deliberate. The court further explained that the jury would break for the weekend around 4:30 p.m., unless it indicated it was close to concluding its deliberations. Defendant did not object to this procedure. The jury was instructed the next day as indicated and reached a verdict at 2:45 p.m." (Ibid.) The defendant argued on appeal that the trial court improperly rushed the jury to a verdict. (Ibid.)
The California Supreme Court held that, because the defendant did not object in the trial court, he had failed to preserve the claim for appeal. (People v. Gurule, supra, 28 Cal.4th at p. 632.) The court further held that it would not have found any error because "[t]he record here fails to support defendant's claim that the trial court pressured the jury or implied that it believed the deliberations would not take long." (Ibid.)
Here, too, the record does not support a claim that the trial court pressured the jury into reaching a quick verdict or that it believed the deliberations would not take long. To the contrary, the court's statement indicates it believed the deliberations, which were beginning on a Thursday afternoon, would continue into another day and was essentially asking the jury whether it would like to continue its deliberations the following day or to wait until after the long weekend.
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.