Opinion
B225326
11-03-2011
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER A. REINOSO, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA260255)
APPEAL from a judgment of the Superior Court of Los Angeles County. Leslie A. Swain, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Christopher A. Reinoso of second degree murder. Defendant's sole contention on appeal is that prosecutor engaged in prejudicial misconduct. We affirm.
This appeal arises out of a retrial of the second degree murder charge. Previously, after defendant pled no contest to charges of grand theft auto and unlawfully taking or driving a vehicle, a jury convicted him of second degree murder, driving under the influence causing injury and with a blood alcohol level in excess of 0.08 percent, misdemeanor hit and run driving, and driving with a suspended license. We reversed only the murder conviction because the trial court prejudicially erred in excluding expert psychological testimony regarding defendant's mental defects. In all other respects, we affirmed the judgment. (People v. Reinoso (November 21, 2007, B188142) [nonpub. opn.].) Following retrial, defendant was once again convicted of second degree murder. He was sentenced to 15 years to life in prison, to run consecutively to the sentence imposed on the other counts after the first trial. He timely appealed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People's Case
Viewed in accordance with the usual rules of appeal (People v. Zamudio (2008) 43 Cal.4th 327, 342), the evidence showed that in February 2004, Yolanda Hernandez was pregnant with her first child, due on April 6, 2004. Hernandez felt in perfect health and at her regular prenatal checkup on February 3, the doctor said everything was "right." Between 11:30 a.m. and noon the next day, February 4, Hernandez was driving on Bluff Road near Washington Blvd. in Montebello, on her way home from running errands. Bluff Road has one lane of traffic going in each direction. Suddenly, Hernandez saw a white van coming towards her, "head-on," at about 60 miles an hour. Hernandez tried to turn to avoid the van, but it hit the passenger side of Hernandez's Kia sedan. The impact caused Hernandez's car to spin until it stopped against a palm tree, trapping Hernandez inside. After she was cut out of her car, Hernandez was transported to a hospital by helicopter.
The traffic officer who investigated the collision opined that the white van caused it by driving in the middle of the street, partially in the lane of oncoming traffic. When the officer interviewed defendant at the hospital, defendant admitted drinking two or three shots of vodka directly out of the bottle, followed by one 40-ounce can of malt liquor. Defendant told the officer that his driving license had been suspended because of two previous DUI arrests.
The emergency room doctor who treated Hernandez at the hospital found, among other significant injuries, that she suffered an "abruption of the placenta," which is damage to the part of the uterus that supplies blood (and oxygen) to the fetus. The doctor pronounced the fetus dead; later that day labor was induced and Hernandez delivered the already dead baby. An autopsy determined that the cause of the baby's death was "intrauterine fetal demise" due to "abruptio placenta" resulting from Hernandez's abdominal injuries. The baby had no congenital defects and could have been delivered alive, but for the interruption in the blood supply.
When Police Officer Julio Martinez arrived at the scene of the collision he saw defendant, semiconscious, pinned by the steering wheel in the driver's seat of the white van. From defendant's blood shot watery eyes, dilated pupils, flushed face, slurred speech and the strong odor of alcohol emanating from him, Martinez deduced that defendant was intoxicated. A blood test taken at the hospital determined defendant's blood alcohol level to be 0.29 at 3:30 p.m.; the level could have been as high as 0.33 at the time of the collision. To have that blood alcohol level, a person of defendant's height and weight would have to have consumed about thirteen 12-ounce beers or a pint of hard liquor. A person with that blood alcohol level would be impaired.
On the day of the collision, defendant's license had been suspended. The van he was driving belonged to Economy Mail Service on Montebello Blvd., next door to where defendant lived at the time. At about 11:30 a.m. on the day of the collision, defendant was seen driving the van out of the Economy Mail Service parking lot after an employee left it parked with the keys underneath the driver's seat. A little while later defendant hit the back passenger side of a Trail Blazer driven by Timothy McClean as McClean was turning right into a driveway. Before actually hitting McClean, defendant almost rear-ended McClean several times over a one mile stretch. Defendant did not stop after hitting McClean, but Maria Ramsdale, who had noticed the van driving erratically before the collision with McClean, had taken down a description of it. When she saw it hit McClean, Ramsdale stopped and gave McClean the information he needed to make a police report. When the police arrived, they took McClean to the scene of the Hernandez accident where he verified that the van involved in that accident was the same van that hit him earlier that day.
Defendant had 8 prior convictions for driving under the influence and his license had been suspended 10 times. In 1994, he was driving with a 0.32 blood alcohol level when he was involved in a collision causing injury to him and the occupants of the other vehicle. In 2002, defendant drove an SUV into a light pole. In 2003, defendant was referred for 18 months of alcohol treatment and counseling, but he was expelled from the program for nonattendance.
The employee testified that he did not give defendant permission to drive the van; defendant told an investigating officer that the employee gave him permission.
2. The Defense Case
The theory of defense was that defendant was in such a drunken stupor when he was driving the van that he did not form the requisite intent for second degree murder: malice aforethought. There was evidence that defendant's family had a history of mental illness. As a child, defendant was diagnosed with hyperactivity and prescribed medication. He suffered a head injury in 1993 and more head injuries after that; these injuries impaired his short-term memory and thought processes. Defendant's mother and uncle repeatedly warned him not to drink and drive.
Dr. Michael Perrotti, a psychologist, met with defendant at the Men's County Jail in May and August 2005, and again in September 2009, as part of a psychological evaluation. Perrotti also reviewed defendant's medical and jail records, talked to his mother and uncle, listened to a recording of a conversation between appellant and his ex-wife and read letters defendant wrote. Perrotti testified that defendant was at various times diagnosed with Manic-Depressive Disorder, Attention Deficit Disorder, Atypical Bipolar Disorder, Cognitive Disorder, Bipolar Illness and Classic Attention Deficit Hyper Activity Disorder. He was prescribed various medications, including mood stabilizing drugs. Perrotti opined that defendant had poor to moderate impulse control. In 2005, Perrotti diagnosed defendant as mildly mentally retarded. But in 2010, Perrotti corrected his diagnosis to "borderline intellectual functioning." Perrotti concluded that defendant had a cognitive disorder that affected his reasoning capacity. The combination of mental illness and disabilities caused defendant to be impulsive, to lack judgment and to be unable to learn from his mistakes.
DISCUSSION
A. Prosecutorial Misconduct
Defendant challenges as prosecutorial misconduct various statements made by the prosecutor during closing argument. He argues that the statements improperly appealed to the sympathy and passions of the jury. We find no error.
1. Forfeiture
The People argue that defendant forfeited this argument by failing to make a timely objection and request for admonition. Defendant counters that he objected and requested an admonition when he asked the trial court to "cite the district attorney for misconduct in the repeated attempts to emotionalize the matter in the way she was referring to the baby and the mother." The fact is that almost all of the challenged remarks were made during the prosecutor's opening argument. Defendant did not object to any of those remarks until after the jury began deliberating, although he had ample opportunity to do so outside the presence of the jury during recesses. Instead, following the lunch recess, defense counsel began his opening argument with the statement: "I don't like to be jumping up and hollering when somebody is arguing objection, objection, objection. . . . She made some statements to you evoking the baby would be six years old now. Other comments about the victim that were totally irrelevant to all the legal arguments here and they were done to evoke your sympathy. The judge has already instructed you not to view the case based on sympathy. That kind of argument shouldn't be done. I hope she would refrain from it in her closing remarks. [¶] She also said that Dr. Perrotti had basically falsified his report . . . . So, I think she owes him an apology." When the court took a recess at the end of defendant's closing argument, defense counsel did not use that opportunity to request the trial court to admonish the jury. Not surprisingly, when the prosecutor began her closing argument she doubled down on her opening argument: "Ladies and gentlemen, defense got up here and the first thing he said is that the prosecutor should apologize for talking about the victim in this case and talking about Dr. Perrotti and how he's changed his opinion about the defendant's mental condition. . . . They should be apologizing to you for putting Dr. Perrotti on to insult every one of your intelligence. They should be apologizing to you that [he] got up here and argued the case without mentioning anything about the victim in this case. . . . [¶] . . . What about the victim that he killed." For the first time, defense counsel objected but did not request an admonition; the trial court sustained the objection. Later, the trial court sustained a second objection to the prosecutor's statement, "What about the victim?" It overruled a third objection to the following statement by the prosecutor: "Let's look at what happened on February 4, 2004, ladies and gentlemen. Yolanda Hernandez was going home after buying groceries. Yolanda got in her car happy, anxious, excited." After the jury was released for deliberations, defense counsel requested the trial court to "cite the district attorney for misconduct in the repeated attempts to emotionalize the matter in the way she was referring to the baby and to the mother. It's not relevant to the argument she's presenting and I would ask the court to admonish the jury." The trial court declined to take any further action, but observed that some of the prosecutor's comments reflected an attempt "in some fashion to inflame the sympathies of the jury in talking about the baby girl who didn't get to have a life."
This chronology demonstrates that defendant did not make a timely objection or request an admonition to any of the statements made during the prosecutor's opening argument. Accordingly, the claim of prosecutorial conduct as to those statements has been forfeited. (People v. Lopez (2008) 42 Cal.4th 960, 966.) As to the challenged statements by the prosecutor during her closing argument, we need not decide whether the objection and request for an admonition made after the jury began deliberation were sufficient. This is because, as we shall explain, none of the challenged statements - those made during opening argument and those made during closing argument - rises to the level of prosecutorial misconduct.
2. There was no prosecutorial misconduct
It is misconduct for a prosecutor to make arguments that appeal to the jury's passion or prejudice, to introduce inadmissible evidence through the backdoor of impermissible questions, to misstate the law, or to impugn the credibility of defense counsel. (People v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Hill (1998) 17 Cal.4th 800, 829, 832; People v. Hudson (1981) 126 Cal.App.3d 733, 735-740.) In short, it is misconduct to use deceptive or reprehensible methods to persuade the court or the jury. (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct includes appealing to the sympathy or passions of the jury. (People v. Vance (2010) 188 Cal.App.4th 1182, 1192 (Vance).) For example, inviting the jury to put itself in the victim's position and imagine what the victim experienced "is a blatant appeal to the jury's natural sympathy for the victim." (Id. at p. 1188.) Likewise, urging the jury to consider the impact of the crime on the victim's family is prosecutorial misconduct. (Id. at p. 1193.) It is also misconduct for the prosecutor to attack the integrity of or cast aspersions on defense counsel. " ' "It is, of course, improper for the prosecutor 'to . . . portray defense counsel as the villain in the case. . . . Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.' " ' [Citations.]" (Id. at p. 1201.) In Vance, a first degree murder case, the court found it to be prejudicial misconduct for the prosecutor to urge the jurors to "walk in [the victim's] shoes" and to "relive in your mind's eye" what the victim experienced. (Id. at p. 1194.) It also found to be misconduct the prosecutor's statement, " 'Defense is objecting because the defense believes that I'm painting too graphic a picture.' " (Id. at pp. 1200-1201.)
When the misconduct 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. Morales (2001) 25 Cal.4th 34, 44.) In Vance, for example, the court found the prosecutor's improper comments prejudicial because "they 'may have been the deciding factor which brought about his conviction of first degree murder.' " (Vance, supra, 188 Cal.App.4th at pp. 1206-1207.) We will reverse only if a different result was reasonably probable absent the misconduct. (People v. Ochoa (1998) 19 Cal.4th 353, 466.)
Here, defendant challenges as misconduct various statements made by the prosecutor during closing argument. These statements are of basically two types: (1) statements defendant characterizes as intended to appeal to the sympathy, and inflame the passions, of the jurors, including references to how happy Hernandez was to be expecting her first child, the victim as an "innocent baby" and the event as "tragic;" and (2) challenges to the integrity of Dr. Perrotti and defense counsel. We conclude that none of the challenged statements rise to the level of deceptive or reprehensible methods to persuade the jury. Characterizing the collision as "tragic" is not reprehensible, nor is referring to the victim as an "innocent child." The prosecutor's remarks also did not impugn the integrity of defense counsel. The statements defendant complains about challenged the credibility of the witnesses, not defense counsel and it is not misconduct for the prosecutor to challenge a witness's credibility.
Defendant challenges the following highlighted statements:
"February 4, 2004, changed everybody's lives forever. . . . Yolanda Hernandez who was about eight months pregnant was waiting for the delivery of her baby, and was so happy, as she explained and testified, to have that joy, to be able to have the baby, first baby of her and her boyfriend/husband. She knew she was going to have a baby girl. She was excited. She was happy. [¶] What happened? What happened was [defendant] got behind the wheel of another's car and became a loaded firearm and this time around when [defendant] shot with that firearm he hit the most innocent target on February 4, 2004, baby girl Yolanda Carrasco who wasn't even born. She didn't have to die the way she did." (Italics added.)
"It's not that he was driving erratically, because we have witnesses on the road who are saying, my God, we're going to have to get this guy's license plate number because he's begging to kill somebody and he did. It's not just that. It's that him driving that car causing the death of an innocent baby girl Yolanda Carrasco. So, now he can't really say, you know, I wasn't driving." (Italics added.)
"And the act was the defendant driving while he was under the influence of alcohol causing head on tragic collision with [Hernandez] which then caused the death of the fetus as the coroner testified . . . . [Defendant's] act caused baby girl Yolanda Carrasco not to be able to get any more oxygen from her mother to survive to be born, to be a happy sixyear old today." (Italics added.)
"[W]e have doctors who are going to come and testify the abruption of the placenta was caused due to this tragic traffic collision and the coroner is going to say the same thing, the cause of death to this innocent baby girl. So, that's not going to fly." (Italics added.)
"Never ever in these letters is [defendant] talking about man, I killed this innocent fetus who was going to be born alive and be six years old today. Never. He just says, you know, I'm sad I ran into that lady, really? That's the remorse that Dr. Perrotti tried to, you know, make it bigger and bigger with every sentence." (Italics added.)
"[I'm confident that you will] deliberate upon this cause and you're going to come back and find him guilty of second degree murder of baby girl Yolanda Carrasco who didn't live in this world a day. She was forced to be born dead by [defendant]." (Italics added.)
"Now, the charge is murder under implied malice, so now what can the defense come up with? What can they do to try to pull the smoke screen to your faces? Well, you know, they're going to say the excuse is going to be I'm special and I'm special in a different way and the excuse started not in 2010. The excuse began in 2004 when he got arrested and put in jail. He started writing the letters to his ex-wife. You're going to have the letters in the deliberation room to read. Yes. The letters were addressed to his ex-wife and his daughter Tania Reinoso and Kyra Reinoso, but when he was writing those letters, ladies and gentlemen, he had you in mind. You were the goal. He didn't know who you were going to be and he didn't know what you would be looking like, but he knew he was going to have to present something to 12 members of the community.
. . . He had no idea these letters were going to be read by each and every one of you, but he knew that he had to now come up with a new excuse. And he wrote the excuse in those letters. [¶] He knew that. The goal was to fool each and every one of you. And how he [is] going to do that in this case? Well, Dr. Perrotti, that's how he was going to do it in this case. He was going to come up and he was going to have Dr. Perrotti tell you that he'she has a bipolar disorder and that he is ADHD." (Italics added.)
"Unfortunately, when first Dr. Perrotti wrote his report in 2005, they didn't know these letters were going to surface, so Dr. Perrotti in his report wrote [defendant] is suffering from mild mental retardation and then in 2010, he admitted to you he wrote a letter to the district attorney's office to explain that it was a mistake, really? A psychologist calls somebody mild mentally retarded for five years and then realizes after reading these letters, oops, that's not going to fly, so I'm going to have [to] change the line. I'm going to make it better. I'm going to make it sound better so I don't lose my credibility. I'm going to call that a borderline intellectual functioning. That's not a typo. The doctor knew exactly what he was doing. Unfortunately, the doctor didn't know his exwife was going to provide the letters'" (Italics added.)
"[Defendant's letters suggest he thought,] "I just need to keep up my confidence and think positive because I can do this. I can go to court and I can put Dr. Perrotti on and I can fool 12 members of the community thinking they just fell off a turnip truck and they were born yesterday, so I'm going to go ahead and fool them." (Italics added.)
Defendant also challenges the following statements made by the prosecutor in her rebuttal argument:
"Ladies and gentlemen, defense got up here and the first thing he said is that the prosecutor should apologize for talking about the victim in this case and talking about Dr. Perrotti and how he's changed his opinion about the defendant's mental condition. . . . They should be apologizing to you for putting Dr. Perrotti on to insult every one of your intelligence. They should be apologizing to you that got up here and argued the case without mentioning anything about the victim in this case. Remember, we have a victim in this case." (Italics added.)
Even assuming, for the sake of argument, that the challenged statements crossed the line from heated argument to misconduct (which we do not believe they did), we find it unlikely the jurors would have applied any of the prosecutor's remarks in an objectionable fashion. There was no dispute that defendant was driving the van while intoxicated, that he caused the collision or that the injuries Hernandez suffered caused the death of her unborn baby. The only issue at trial was whether defendant had the requisite state of mind for second degree murder: implied malice. There was overwhelming evidence that he did. This includes the undisputed evidence that he had multiple prior convictions for driving under the influence; two of those convictions involved car collisions; and in one of those two collisions the occupants of the other vehicle were seriously injured. The only reasonable inference from this evidence was that defendant knew the natural and probable consequences of driving while under the influence are dangerous to life. Under these circumstances, it is not reasonably probable the jury would have reached a different result had the prosecutor not made the challenged statements.
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.