Opinion
H036461
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. KEITH RAUL RIOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS090900)
Defendant Keith Raul Rios appeals from a judgment of conviction entered after a jury found him guilty of six counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a) - counts 1, 2, 12, 14, 16, 18), eight counts of lewd acts on a child over the age of 14 and more than 10 years younger than defendant (§ 288, subd. (c)(1) -counts 19, 21, 23, 25, 27, 29, 32, 34), one count of corporal injury to a child (§ 273d, subd. (a) - count 36), two counts of child endangerment (§ 273 a, subd. (a) - counts 37, 38), and one count of criminal threats (§ 422 - count 39). The jury also found true the allegations that defendant engaged in substantial sexual conduct in connection with counts 1, 2, 12, 14, 16, and 18 (§ 1203.066, subd. (a)(8)) and that he personally inflicted great bodily injury in connection with count 23 (§ 12022.7, subd. (a)). The trial court sentenced defendant to 25 years in state prison. On appeal, defendant contends: (1) there was insufficient evidence to support counts 12, 14, 19, 21; (2) the trial court erred in admitting evidence that did not fall within the spontaneous statement exception to the hearsay rule; and (3) his counsel rendered ineffective assistance by failing to object to prosecutorial misconduct. We conclude that there was insufficient evidence to support count 21 (§ 288, subd. (c)(1)), and reverse the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of Facts
A. Prosecution Case
Defendant and Maria are the parents of J., born in June 2008, D., born in March 1996, and E., born in March 1994. At the time of trial, D. was 14 years old and E. was 16 years old. Defendant and Maria owned four stores where they sold cigarettes. Prior to March 7, 2009, the children had been living with their parents on Eisenhower Street for three years.
On March 5, 2009, D. got in trouble at school, and her teacher said that she was going to call her home. D. then told her teacher that the previous time that she had called her home her father hit her thighs with his belt. The marks were still present from the last beating. She had also seen defendant beat E.
That same day, Michelle O'Brien, a child protective services worker, spoke with D. D. told her that defendant had hit her with a belt, and she had bruises on both legs. D. reported that she was beaten on a regular basis. She also stated that defendant had sexually molested E. for many years, and he had threatened to kill them if she disclosed any of the abuse. D. was extremely upset, crying and shaking, and very fearful about talking. D. told O'Brien that she had seen her father on top of E. in her parents' bedroom a few months before the interview. At that point, her mother had come out of the shower and was yelling and screaming.
Priscilla Luna, a health aide at D.'s school, also spoke to D., who was very upset and crying. D. told Luna that defendant hit her with a belt and she showed her her injuries. D. also told Luna that defendant was touching E. "in the wrong way." The police were then contacted.
However, D. testified at trial that she never saw anything inappropriate between defendant and E., and he did not molest E. This testimony conflicted with her testimony at the preliminary hearing. At that time, D. testified that she saw defendant take E. into the back of the store, into her parents' room, or into the garage. She also heard E. screaming at defendant to get off of her and to stop. Defendant told D. to keep his relationship with E. a secret, and that if she ever told her mother, he would hurt her.
At time of trial, D. was not living with her family. She loved and missed defendant, and wished she could "undo all of this and live with her family." She also testified that her mother had asked her and her sister to falsely accuse defendant of sexual abuse. D. wrote a letter, dated March 19, 2009, in which she apologized to her mother for breaking up the family.
E. testified at trial that defendant hit her and her sister with a belt and he left marks on them once or twice. She also testified that she had never been sexually abused. However, she admitted that she had told a social worker on March 5, 2009 that defendant sexually abused her. She stated that she did so because her mother told her to do it and she felt pressured by the social worker. She explained that her mother was mad at defendant because he was having an affair. When the police officer arrived, E. stated that defendant had sexually abused her.
E.'s testimony was impeached by an interview on March 6, 2009 at the hospital. E. stated that the last time defendant sexually assaulted her was the previous Sunday at the Seaside store when defendant orally copulated and had sexual intercourse with her before the store opened for business. Defendant told D. to stay in the front of the store while he sexually assaulted E. in the back. E. also related defendant's previous sexual assaults. When she was in third grade, defendant used his hands to penetrate her vagina. He then began touching her with his mouth and progressed to "touching with his private part," which involved penetrating her vagina with his penis. When defendant started having sexual intercourse with her, he did so each time he molested her. Defendant had sexual intercourse with her whenever he could, which was about once a week.
The DVD of the interview was played for the jury, and a transcript of the interview was admitted as an exhibit.
In explaining how defendant touched her with his penis, E. described sexual intercourse.
During the interview, E. stated that defendant never wore condoms when he had sexual intercourse with her. Defendant kept track of her periods and gave her an at-home pregnancy test. She became pregnant while her mother was in the hospital for her brother's birth, and she had an abortion during the summer of 2008. She was in the "worst pain" for a week. She told her mother that she could not have the baby because of "inborn inbreeding."
Her trial testimony was also impeached by her testimony at the preliminary hearing. At that time, she testified defendant orally copulated her and had sexual intercourse with her. Defendant touched her vagina with his hands multiple times. He also continued molesting her after she turned 14. Defendant orally copulated her multiple times before she turned 14. Defendant also had sexual intercourse with E. while her mother was in the hospital.
At trial, E. testified that she did not tell the truth at the preliminary hearing, and explained that she was pressured to keep with her original story. She denied that she became pregnant with defendant's child, but she had previously testified that she was not having sex with anyone but defendant. E. told defendant that she did not want him touching her. When E. told her mother about the abuse, defendant hit her head against a brick wall.
After E. was removed from the home, her mother told her to tell the truth. However, she testified at the preliminary hearing that her mother asked her "to protect the family." Defendant's sister asked E. to send letters to her mother's attorneys, defendant's attorneys, an investigator with the district attorney's office, some judges, her mother, defendant, and her grandmother. Her mother also told her to write these letters.
Luis Diaz, E.'s and D.'s uncle, testified that his nieces have been living with him for a little over a year. In May or June of the previous year, E. told him the allegations were true. E. never told him that defendant did not sexually abuse her.
Jennifer Chavez, Diaz's girlfriend, testified that D. told her that she got hit a lot, and that she walked in on her sister and defendant. Recently, however, D. told her that the abuse had never happened. When Chavez told her to tell the truth, she replied, "I don't care. I just want my family back."
Linda Castillo, a social worker, testified that when she spoke with E. regarding the sexual abuse allegations, E. became "[t]eary eyed." E. told her that the abuse began in third grade, and had ended the Sunday before Castillo spoke to her. When E. heard that her younger brother J. would be placed into protective custody, she was upset, saying "if anybody asks me anything, I'm not going to say." However, E. did not say that defendant had not sexually abused her.
Kathryn Richards, a social worker, testified that she was assigned to E., D., and J. from March to August 2009. At the end of March, D. contacted her because E. was pressuring her to recant her allegations against her parents. Richards urged D. to tell the truth, but D. stated that she would lie and go along with E. because she did not want her parents mad at her.
Christina Gunter, an investigator with the district attorney's office, testified that she became involved in the present case in April 2009. When she spoke with D., D. did not indicate that the allegations were not true. On April 21, 2009, Gunter interviewed E., who indicated that the abuse did not occur and that being in foster care was worse than anything else. However, her attitude changed during their conversation, and she stated that she had told the police the truth. E. also told Gunter that she was writing the letters because she wanted to get her mother out of jail. She told Gunter that defendant had had sexual intercourse with her and that she had become pregnant with defendant's baby. Though E. acknowledged that what defendant had done was wrong, she still loved him.
On May 11, 2009, Gunter interviewed E. again. When Gunter confronted her about the letters, she responded, "I already told you that I made those up." She told Gunter that she had the abortion because she was concerned that the baby would have health issues. Gunter saw E. at the preliminary hearing. At that time, E. stated that she was afraid of testifying because she was scared to see her parents. Gunter next saw E. on August 7, 2009. E. told her that she was never going to get married and have kids because she could never trust the father to be with her kids. When E. expressed a desire to return home, Gunter asked whether she could give a 100 percent guarantee that the abuse would not continue if she returned home. E. replied that she could not. During this interview, E. did not say that the abuse never happened.
Meanwhile, Gunter spoke to D. a few times but they did not discuss the facts of the case. D. told her that she was considering lying at the court hearing. Gunter told her that she wanted her to tell the truth, and D. said, "I can't promise that."
On October 12, 2009, Gunter spoke with E. and defendant's attorney. E. stated that her mother had told her to report abuse by defendant because he was having an affair. She claimed that her mother did not tell D. of this plan. Gunter then called D., who said that her mother had told her that defendant was having an affair and that D. was to report abuse so that defendant could stay with the family. D. also stated that the physical abuse allegations were not true. She told Gunter that she was going to do whatever it took to get defendant out of jail.
B. Defense Case
Defendant's brothers and sisters testified that they spent a lot of time at their brother's home and he was always working. They never saw anything inappropriate or unnatural between defendant and E. Defendant's friends and coworkers testified to defendant's good character. They also testified that they had never seen him behave inappropriately with his daughters.
Defendant testified that he worked approximately 80 hours and sometimes 100 hours per week. Defendant admitted that he spanked D. and E. with a belt, but he denied that he ever spanked them so hard that it left marks on them. He estimated that he had spanked E. five or six times and D. eight or nine times when they were teenagers. He denied ever touching E. in a sexual manner. He also denied threatening them in connection with their testimony.
II. Discussion
A. Sufficiency of the Evidence
1. Standard of Review
In reviewing a claim of insufficient evidence, this court " ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" [Citation.]' " (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) " 'We presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citation.]' (People v. Prince (2007) 40 Cal.4th 1179, 1251.)" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
2. Counts 12 and 14
Defendant contends that there was insufficient evidence to support his convictions for lewd acts upon a child under 14 as charged in counts 12 and 14. The information alleged a first act (count 12) and a last act (count 14) of sexual intercourse at the Eisenhower Street house. These acts were alleged to have occurred between January 2, 2006 and March 10, 2008. E.'s 14th birthday was after March 10, 2008.
Here, E. testified that she was sexually molested numerous times at the Eisenhower Street residence before she turned 14. Defendant used his mouth, hands, and penis when he was molesting her. In her interview with the social worker, E. stated that he did not "do anything beside the finger" when she was in third grade. She did not know "exactly" when defendant started touching her with his penis. He would touch her with his penis "[s]ometimes once a week." Once he began touching her with his penis, he always touched her with his penis. The interviewer then asked her if she experienced any bleeding or pain the first time. After E. said that she had not, the interviewer stated, "so we're thinking it started about third grade and went on until now when you're in ninth grade," and E. replied, "Yes." Based on this evidence, the jury could have reasonably concluded that defendant began having sexual intercourse with E. on a regular basis beginning sometime after she was in third grade until she was in ninth grade. Thus, there was substantial evidence to support the jury's finding that defendant had sexual intercourse with E. on at least two occasions before she was 14.
3. Counts 19 and 21
Defendant next contends that there was insufficient evidence to support his convictions for lewd acts upon a child over 14 when the defendant was at least 10 years older. The information alleged a first act of sexual intercourse (count 19) and a first act of oral copulation (count 21). These acts were alleged to have occurred between March 11, 2008 and June 1, 2008.
Defendant testified that he was 35 years old, and E. testified that she was born in 1994, thus establishing the requisite age difference. As previously stated, the record established that defendant had sexual intercourse with E. on a regular basis beginning sometime after she was in third grade until she was in ninth grade. Thus, since the first act of sexual intercourse when she was over 14 occurred between March 11, 2008 and June 1, 2008, there was substantial evidence to support defendant's conviction as to count 19. As to count 21, E. testified that defendant put his mouth on her vagina more than once after she turned 14, but there was no evidence that any of these acts of oral copulation occurred between March 11, 2008 and June 1, 2008. Thus, there was insufficient evidence to support defendant's conviction as to count 21.
B. Admissibility of Evidence
Defendant also contends that the trial court abused its discretion by admitting testimony by D. that her mother yelled at defendant to "get off of her" when E. was in the bedroom with him. He claims this statement did not fall within any exception to the hearsay rule.
The prosecutor made an offer of proof. "The testimony I'm seeking to elicit from D[.], which I would add contained within the preliminary hearing transcript, is that her mother got into the shower. The father came and got E[.] and took her into the parents' room, closing the door behind him. Told D[.] to stay in her room. That D[.] could hear his belt coming because of the noise it makes when it comes off. [¶] And then she heard her mother yelling 'get off of her. Are you trying to get her pregnant again?' And that the mother cussed at him and told him he was a sorry excuse for a man. And that would be offered as an excited utterance, as the mother clearly walked in on the defendant having intercourse with their daughter." After defense counsel objected to the evidence on the ground that the declarant did not state that it was an excited utterance, the trial court ruled that the statement "get off of her" was admissible.
"A 'spontaneous utterance[]' is considered trustworthy, and admissible at trial despite its hearsay character, because 'in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.' [Citation.] Evidence Code section 1240 provides that '[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.' For admission of a spontaneous statement, ' "(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 925.) This court reviews a trial court's ruling admitting statements as spontaneous under the abuse of discretion standard. (Id. at p. 927.)
Relying on People v. Butler (1967) 249 Cal.App.2d 799, defendant argues that there must be substantial evidence of "the occurrence of the event which purportedly triggered the statement." In Butler, the victim ran out of the defendant's house and made statements to his mother immediately after the charged offenses were committed. (Id. at p. 805.) Butler described the " 'bootstrap' argument": "If the crimes were in fact committed as alleged, then there is the required nervous excitement, if not, then no excitement and no hearsay exception." (Ibid.) However, Butler concluded that since others had witnessed the charged offenses, there was "sufficient corroboration of the activities attested to by direct testimony to overcome any objection as to the source of the excitement." (Id. at pp. 803, 805.)
Here, E. told the social worker in the recorded interview that her mother exited the shower, saw defendant having sexual intercourse with her in the master bedroom, and started yelling and hitting him. As in Butler, there was sufficient corroboration of the mother's observation of the act triggering her statement. Thus, the mother's statement satisfied both prongs of Evidence Code section 1240. The mother described what she saw, that is, defendant on top of their daughter, and the statement was made spontaneously while she was under the stress of seeing defendant having sexual intercourse with their daughter. Accordingly, the trial court did not err by admitting the mother's statement as a spontaneous statement.
C. Ineffective Assistance of Counsel
Defendant contends that his counsel rendered ineffective assistance by failing to object to two instances of prosecutorial misconduct.
To prevail on an ineffective assistance of counsel claim, the defendant must first show that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) If the defendant meets this initial burden, he or she must then establish prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.)
A defendant must make a timely objection, state the basis of his or her objection, and request that the trial court admonish the jury in order to raise the issue of prosecutorial misconduct on appeal. (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) However, the " '[f]ailure to object rarely constitutes constitutionally ineffective legal representation. . . .' [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206.)
" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' " (People v. Smithey (1999) 20 Cal.4th 936, 960.)
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 829-830 (Hill), overruled on onother ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) If an allegation of prosecutorial misconduct " ' "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." [Citation.]' " (People v. Carter (2005) 36 Cal.4th 1215, 1263 (Carter).) " '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. [Citation.]' [Citation.]" (Brown, supra, 31 Cal.4th at pp. 553-554.)
Defendant first argues that the prosecutor committed misconduct in her statements regarding unanimity. He asserts that her statements lowered the prosecution's burden of proof.
In the present case, the prosecutor stated: "The issue is are you convinced. And I also want to be clear you do not need to be convinced beyond a reasonable doubt as to every detail of what happened. You only need to be convinced beyond a reasonable doubt as to the elements of the crimes charged, the specific things that the judge will tell you have to be proven. [¶] And you do need to be convinced. And what it takes for you to be convinced is ultimately the personal decision for you. Do you feel convinced? You may not find the same fact or same piece of testimony convincing as another juror does. And that's fine. You don't have to. [¶] And any doubts that you do have have to be based on evidence. Testimony of the witnesses, exhibits that were entered into evidence, the prior testimony, prior statements you've seen and heard. [¶] And I want to be clear that what reasonable doubt is not. I'm not required to prove beyond a reasonable doubt who broke the TV set. I'm not required to prove beyond a reasonable doubt what the meaning was behind this letter, this paper with the addresses and instructions. I'm not required to prove beyond a reasonable doubt that the mother was aware of the abuse and did nothing. [¶] And along with that, you don't have to unanimously agree about all of those things. The only thing you have to unanimously agree on are the elements of the crimes charged."
Defendant argues that the prosecutor "misleadingly conveyed to jurors that even if they disagreed on what facts and criminal acts had been proven, as long as they all agreed that facts had been proven which established the elements of the crimes charged, this would satisfy the prosecution's burden of proving each element of the crimes beyond a reasonable doubt. The argument advanced the idea that one juror might find that an element of one of the crimes had been proved based on a particular fact, act or particular testimony and another might find that element proven based on a different fact, act or body of testimony. Under this argument, as long as the jurors 'unanimously agree on . . . the elements of the crimes charged,' that would be sufficient."
In our view, the prosecutor's comments did not mischaracterize the law on unanimity. The prosecutor gave examples of the types of facts upon which the jurors were not required to agree. She also stated, however, that the jurors would "need to be convinced beyond a reasonable doubt as to the elements of the crimes charged, the specific things that the judge will tell you have to be proven." The prosecutor thus expressly directed the jury to follow the trial court's instructions as to those facts which the prosecution was required to prove beyond a reasonable doubt. Accordingly, there was no misconduct, and thus counsel did not render ineffective assistance by failing to object to the prosecutor's statements on unanimity.
Moreover, even if there was some ambiguity regarding the prosecutor's statements on unanimity, and assuming that counsel's representation was deficient, defendant has failed to show prejudice. The trial court properly outlined the charged offenses and the requirement of unanimity. The trial court instructed the jury: "You must follow the law that I -- as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." The trial court then set forth the charged offenses and the relevant time periods: "So the defendant is charged with the following crimes . . . that are alleged to have occurred on or during certain times as follows: Sometime during the period of September 1st, 2002, through January 1st, 2006, Count 1, lewd act upon a child under 14 by digital penetration, first time. . . . [¶] . . . [¶] Second count, lewd act upon a child under 14 by digital penetration last time. . . . The next period of time, sometime during the period of January 2nd, 2006, through March 10, 2008, Count 12, lewd act upon a child under 14 by sexual intercourse, first time at Eisenhower Street house. . . . [¶] Count 14, lewd act upon a child under 14 by sexual intercourse, last time at Eisenhower Street. . . . Count 16, lewd act upon a child under 14 by oral copulation, first time at Eisenhower Street house. . . . [¶] . . . Count 18, lewd act upon a child under 14 by oral copulation, last time at Eisenhower Street house before E[.] Doe turned 14. . . . [¶] Next period of time is sometime during the period of March 11, 2008 through June 1st, 2008. Count 19, lewd act upon a child 14 years old by sexual intercourse, first time after E[.] Doe turned 14 years old. . . . Count 20, unlawful sexual intercourse first time after E[.] Doe turned 14. . . . [¶] Count 21, lewd act upon a child 14 years old by oral copulation, first time after E[.] turned 14 years old. . . . Count 22. Oral copulation on a child under 18, first time after E[.] Doe turned 14. . . . [¶] . . . On or about June 4, 2008, Count 23, lewd act upon a child 14 years old by sexual intercourse while the mother was in the hospital. . . . [¶] . . . Count 24, that is unlawful sexual intercourse while the mother was in the hospital. . . . [¶] . . . [¶] Sometime during the period of July 1, 2008 through August 1, 2008, Count 25, lewd act upon a child 14 years old by sexual intercourse before the pregnancy test . . . . Count 27, lewd act upon a child 14 years old by sexual intercourse after the pregnancy test . . . . [¶] . . . Count 28, unlawful sexual intercourse after the pregnancy test . . . . [¶] Sometime during the period of September 1st, 2008, through February 29, 2009. Count 29, lewd act upon a child 14 years old by sexual intercourse, first time after the abortion . . . . Count 30, unlawful sexual intercourse first time after the abortion . . . . [¶] On or about March 1, 2009, Count 32, lewd act upon a child 14 years old by sexual intercourse at the Seaside store . . . . Count 33, unlawful sexual intercourse at the Seaside store. . . . [¶] Count 34, lewd act upon a child 14 years old by oral copulation at the Seaside store . . . . Count 35, oral copulation of a child under 18, the last time at the Seaside store . . . on or about February 25, 2009. Count 36, corporal punishment or injury to a child, D[.] Doe . . . . [¶] . . . [¶] Count 39, criminal threats on E[.] Doe . . . . Sometime during the period of September 1, 2002 through March 5, 2009. Count 37, child abuse on E[.] Doe . . . . [¶] Count 38, child abuse on . . . D[.] Doe."
The jury had a written copy of the instructions in the jury room. Before the trial court instructed the jury on the charges, the bailiff passed out a document listing the charges and counts. The trial court explained that this document was a "tool" to help the jury understand the later instructions.
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After instructing the jury on the elements of these offenses, the trial court instructed the jury on unanimity: "The People have presented evidence of more than one act to prove that the defendant committed these offenses. You must not find the defendant guilty unless, one, you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense, or, two, you all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged." Based on these instructions, it was not reasonably likely that " ' "the jury construed or applied any of the complained-of remarks in an objectionable fashion." [Citation.]' " (Carter, supra, 36 Cal.4th at p. 1263.)
Defendant also argues that the prosecutor committed misconduct in her comments regarding the reasonable doubt standard.
As part of her discussion of reasonable doubt, the prosecutor stated that "any doubts that you do have have to be based on evidence. Testimony of the witnesses, exhibits that were entered into evidence, the prior testimony, prior statements that you've seen and heard."
Hill, supra, 17 Cal.4th 800 is instructive. In Hill, the prosecutor referred to the reasonable doubt standard, and stated that " 'it must be reasonable. It's not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.' " (Id. at p. 831.) When defense counsel objected that the prosecutor was " 'putting the burden on me,' " the trial court overruled the objection, stating " 'No, that's not. That's your interpretation of it.' " (Ibid.) The prosecutor then continued, " 'There must be some evidence from which there is a reason for doubt. You can't say, well, one of the attorneys said so.' " (Ibid.) The California Supreme Court found the comments "somewhat ambiguous," but concluded that the prosecutor committed misconduct "insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution evidence. [Citation.] On the other hand, [the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind." (Id. at pp. 831-832.) Though recognizing that the issue was close, the court concluded that the jury understood the prosecutor's comments "to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt." (Id. at p. 832.)
Even assuming that the prosecutor committed misconduct under Hill and trial counsel failed to act as a reasonably competent attorney when he failed to object to the prosecutor's statements, it is not reasonably probable that the result would have been more favorable to defendant if trial counsel had objected and the trial court had stricken the comments. (Strickland, supra, 466 U.S. at p. 694.) In the present case, the trial court instructed the jury that it must follow the law as explained by the court, and that if the attorneys' comments conflicted with the trial court's instructions, the jury was required to follow the trial court's instructions. The trial court correctly instructed the jury on the presumption of innocence and the People's burden of proof in general. The trial court did not give any instructions suggesting that defendant had the burden of producing evidence demonstrating a reasonable doubt. Absent any contrary indications, we must presume that the jury followed the trial court's instructions rather than the prosecutor's statements. (People v. Valdez (2011) 201 Cal.App.4th1429, 1437.) Accordingly, there was no prejudice to defendant.
III. Disposition
Since there was insufficient evidence to support count 21 (§ 288, subd. (c)(1)), we reverse the judgment.
Mihara, J. WE CONCUR:
Elia, Acting P. J.
Bamattre-Manoukian, J.