Opinion
F072350
02-22-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE GUADALUPE RAMOS-GUERRERO, Defendant and Appellant.
Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F15901153)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza, Judge. Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Appellant Jose Guadalupe Ramos-Guerrero appeals his conviction on one count of inflicting injury on a spouse (Pen. Code, § 273.5, subd. (a)). Appellant argues prosecutorial misconduct during closing arguments impinged upon his constitutional rights. Alternatively, appellant contends his counsel's failure to object to the allegedly improper remarks demonstrates ineffective assistance of counsel. For the reasons set forth below, we affirm.
All future statutory references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted, following a jury trial, of inflicting corporal injury upon a spouse, in violation of section 273.5, subdivision (a). According to the supporting evidence offered at trial, during a party held at his house, appellant struck his wife's face with the heel of his palm, knocking her unconscious. A witness called the police, describing the scene as one involving domestic violence, identifying appellant as the aggressor, and stating appellant and his wife had been swinging at each other.
When the police arrived to investigate the call, a different story began to emerge. By trial, the victim, Ms. Corina Nunez, claimed her injury occurred while she was breaking up a fight between two party guests, Ms. Laura Pano Garcia and Ms. Yolanda Gamino. While the victim conceded appellant could have been the one to strike her, she testified that was because she was breaking up a fight and anybody could have hit her during that act. The witness from the party who called 911, Ms. Garcia, testified to facts supporting this claim and further claimed to have lied when she previously told officers that appellant had struck his wife.
During closing arguments, the prosecutor made two arguments alleged as improper in this appeal. First, during the initial closing arguments, the prosecutor presented an argument dealing with the conflicting stories heard at trial. After detailing what he believed the evidence showed based on the 911 call and initial statements, the prosecutor described how appellant had berated officers when detained, how the victim had yelled to him to claim she had been breaking up a fight, and how that version of the facts was not corroborated by the investigation. The prosecutor then argued:
"Defense counsel will ask you to believe the second version of the story. The second version of the story that was provided by Ms. Gamino, Ms. Garcia, Ms. Nunez, packaged up into some really nice statements, delivered to Mr. Lindhal's office by Ms. Nunez. I assume these are going to be the biggest challenges for you in deciding which of these two stories to believe."
After further argument, the prosecutor returned to the subject of the conflicting accounts and what to make of them, arguing:
"Something else to consider is the Defendant's behavior on the scene. He was belligerent. He was threatening officers. He was cursing and not cooperative at all. A week after this happens, all of a sudden the victim remembers what happened and she provided a statement to Mr. Ramos-Guerrero's counsel about what happened."
At this point, appellant's counsel objected that the argument misstated the testimony and the court admonished the jury that "it's up to you to determine what the evidence has shown. As I told you, if the attorneys misstate the evidence, it's up to you to determine what the evidence showed." The prosecutor then continued:
"She provides a statement, even though on the night that all this happened she said, 'I don't know what happened. I bit my lip. Oh, no, maybe I got hit while I was breaking up this fight between these two girls. Maybe that's how I got injured.' Now, all of a sudden, she has this detailed statement about how these things happened and how she remembers she was hit during this girl fight. You have Ms. Garcia's testimony and Ms. Nunez's testimony on both sides because it was intended to support the theory of the girl fight and Ms. Nunez breaking up a girl fight. But because of its inconsistencies and unreasonableness, it tends to prove that Mr. Ramos-Guerrero, in fact, caused the injuries."
In another argument on this issue, the prosecutor again tried to explain why the testimony might change, this time focusing on the victim's motives:
"[Ms. Nunez] knows what Mr. Ramos-Guerrero does for a living. She knows that once law enforcement is involved, as we discussed during jury selection, she has very little say-so on what happens. And that made her mad. I don't know if you guys could tell, but she doesn't want me in her business. She doesn't like me very much. She does not want me, my office, law enforcement telling her and her family what's okay in their home. So what did she do? Because Ms. Garcia was concerned about her safety - - and you heard the call. Ms. Garcia wasn't seeking Mr. Ramos-Guerrero's arrest. She wasn't saying, 'You need to get her right now and arrest this guy. He just hit my friend.' She said, 'My friend needs an ambulance. She's knocked out. She's unconscious and she's bleeding all over.' She was worried about helping her friend. And Ms. Nunez, knowing the consequences of this, contacted everybody. Drove Ms. Gamino to the Defense attorney's office to provide her statement....[¶] [¶] Informed Ms. Garcia where she could submit her statement, her new statement, and encouraged character witnesses to come forward and testify. They said that. Who asked you to come here today? Ms. Nunez. She does not want anyone telling her how to live her life. She has a personal interest in the outcome of this case and she would do anything to make this go away."
During this argument, appellant's counsel again objected that the prosecutor was misstating the trial testimony, and the court again reminded the jury "it's up to you to determine what the evidence has shown."
The second contested argument arose in the prosecutor's rebuttal closing. Claiming to rebut an assertion from defense counsel that changes in domestic violence laws have led to shaky prosecutions designed to ensure all allegations of domestic violence are pursued, the prosecutor argued:
"The second misconception is Mr. Lindahl asserted to you that the DA's office has to prosecute domestic violence cases. And this isn't true. The police department sends cases to the district attorney's office, the district attorney's office reviews the cases, decides whether or not there is enough evidence to prove the case beyond a reasonable doubt, files the case. There's a lot of things that happen in between that and the trial, and at any time during that those proceedings the district attorney's office can dismiss the charges if we feel there's not enough evidence to prove the case beyond a reasonable doubt. The district attorney's office does not have to prosecute domestic violence just because somebody says domestic violence.
"Mr. Lindahl is correct in one thing, that this case is unusual. Usually, in domestic violence cases nobody sees the violence except the victim. So if that were the case in this case, we probably wouldn't have enough evidence to be able to proceed on the case and to prove the case beyond a reasonable doubt. But in this case there were witnesses."
The prosecutor then continued to recount some of the evidence supporting the charges. No objection was raised by counsel to this portion of the argument.
As noted, appellant was ultimately convicted by a jury. The jury found untrue, however, an allegation appellant personally inflicted great bodily injury on the victim. Appellant was ultimately granted probation, following a custodial period of 180 days. This appeal timely followed.
DISCUSSION
Appellant contends the People's closing arguments show prejudicial prosecutorial misconduct warranting reversal. With respect to the discussion of conflicting stories, appellant argues the People implied that defense counsel had orchestrated a change in testimony and thus impugned defense counsel's integrity. With respect to the charging decision discussion, appellant argues impermissible vouching on behalf of the People. To the extent these issues have been forfeited, appellant alleges the failure to object constitutes ineffective assistance of counsel. Standard of Review and Applicable Law
" 'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " ' [Citations.] In addition, ' "a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" ' [Citation.] Objection may be excused if it would have been futile or an admonition would not have cured the harm." (People v. Dykes (2009) 46 Cal.4th 731, 760.)
Where properly preserved, allegations of prosecutorial misconduct are reviewed, on the merits, de novo. (See People v. Fuiava (2012) 53 Cal.4th 622, 681.) The Contested Arguments Were Not Improper
As an initial matter, we note that appellant failed to object to the alleged vouching by the prosecutor. Appellant's arguments have thus been forfeited on this ground. (People v. Rangel (2016) 62 Cal.4th 1192, 1219.) We find, however, appellant's express objection that the prosecutor was misstating testimony was sufficient to preserve the allegation of impugning defense counsel's integrity. Although not expertly stated, counsel's objection is sufficient to suggest the misstated facts were the alleged implication defense counsel was involved in the stories changing. As explained below, however, both of appellant's claims of error are also meritless.
Looking first at the contention the prosecutor's closing argument impugned the integrity of defense counsel, we see no error. It is true that a "prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill (1998) 17 Cal.4th 800, 832.) But mere references to the existence of defense counsel, or their basic role in the trial, are not necessarily indicative of an attack on counsel's integrity. Indeed, in the context of this case, the references to defense counsel pointed to on appeal do not implicitly or explicitly attack the credibility of counsel. Rather, in context, the attacks are to the credibility of the victim. While it is true that the prosecutor noted defense counsel would ask the jury to believe the victim's story, the prosecutor spent considerable time arguing the victim not only created a false narrative, but did everything in her power to ensure that false narrative was properly packaged and explained to the jury through character witnesses identified by the victim herself. The prosecutor went so far as to try to explain the victim's motives for covering up what had happened, none of which involved defense counsel or suggested counsel's integrity was questionable. Rather, it was the integrity of the victim and the witnesses she allegedly brought to the case that was directly questioned. We see no prosecutorial misconduct in such attacks on the evidence.
Considering, next, the alleged vouching, we find no error. In his closing argument, appellant's counsel argued there are now many cases "where domestic violence victims decide they don't want to press charges and the district attorney's offices must press forward, whether the victims want that or not. And I submit to you that what we have here is a case of it going from one extreme to the other. Where it used to be the case that these things weren't handled, now they're all being handled." In response to this argument, the prosecutor explained that the "district attorney's office does not have to prosecute domestic violence just because somebody says domestic violence." After responding to appellant's counsel's argument, the prosecutor went on to explain that this case was different from the normal domestic violence case because there were witnesses, and followed that up by discussing the impact of those witnesses' testimony on the charges. Given the brief and responsive nature of the prosecutor's argument, coupled with the immediate transition to argument concerning the evidence properly admitted in this case, we conclude the prosecutor's arguments were not placing the prestige of the office behind the decision to go to trial or otherwise impermissibly vouching for the credibility of the charges against appellant. (See People v. Caldwell (2013) 212 Cal.App.4th 1262, 1270-1271 [brief comments responding to closing arguments not considered impermissible vouching].) While the reasons why charges were not dismissed before trial are not a proper basis to argue for conviction, the totality of the circumstances as presented here do not rise to the level of impermissible vouching.
Having concluded appellant's arguments are meritless, we need not reach his ineffective assistance of counsel argument. (People v. O'Malley (2016) 62 Cal.4th 944, 1010, fn. 12.)
DISPOSITION
The judgment is affirmed.