Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1309929 James F. Iwasko, Judge.
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Alfredo Soria was convicted by jury of six counts of aggravated sexual assault of a child, specifically oral copulation (Pen. Code, § 269, subd. (a)(4) - counts 1, 6, 7, 8, 10, 11), two counts of aggravated sexual assault of a child, specifically rape (id. (a)(1) - counts 2 and 4), and three counts of forcible lewd act upon a child (§ 288, subd. (b)(1) - counts 3, 5, 9).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court denied probation and sentenced appellant to a total indeterminate term of 120 years to life in state prison and a total determinate term of 6 years in state prison, calculated as follows: As to count 1, the court imposed a sentence of 15 years to life. In each of counts 2, 4, 6, 7, 8, 10 and 11, appellant was sentenced to a consecutive term of 15 years to life. As to count 9, the court imposed the mid-term of six years. In counts 3 and 5, the court imposed and stayed the six-year mid-term sentence pursuant to section 654. Appellant contends that the prosecutor engaged in multiple instances of misconduct, requiring reversal, and alleges instructional error. We affirm.
FACTS
In 2000, the victim was eight years old and in the second grade. She lived with her mother, her brother, and appellant. Appellant and the victim's mother were married, but had been separated for 20 years. They reunited in 2000. The victim was born during the couple's separation and appellant is not her biological father.
We have withheld family members' names to protect the privacy of the victim. She is referred to in respondent's brief simply as "Jane Doe."
During a six to eight-month period in 2000, the victim lived with her family in an apartment in Santa Maria. The apartment had one bedroom which they all shared. Appellant and the victim's mother slept in one bed, and the victim and her brother shared the other bed. At the time of trial, the victim was age 17 and appellant was 57. She testified to four incidents that occurred at age 8, in which appellant committed the sex offences against her.
On the first occasion, appellant forced the victim to move her hand back and forth on his exposed penis. He touched her breast and vagina over her clothing and then he removed her pants and touched her vagina. He kissed her with his tongue in her mouth. On a second occasion, appellant exposed his penis, removed the victim's pants and underwear and touched and licked her vagina. He grabbed her buttocks and forced her to orally copulate him.
The next incident occurred while the victim was sleeping. During the night, appellant moved the victim from her bed into his. The victim's mother was not in the room. Appellant pulled the victim's underwear down and placed his exposed penis between her legs. He moved it back and forth in a "rough" manner, and penetrated her labia, causing her to feel pain. He turned her over and placed his penis between her legs and moved it back and forth. Appellant then told her to go back to bed and pretend to be asleep.
During a fourth incident, appellant removed the victim's pants and underwear and sat her on top of him, with his penis touching her vagina. He moved her body in a circular motion against his penis and penetrated the exterior of her vagina, causing her pain. Appellant kissed her with his tongue in her mouth. The victim testified that appellant touched her almost daily and had licked her vagina about 20 to 40 other times, in addition to the four incidents described above. He had also forced her to orally copulate him an additional 20 to 40 times. After each incident, appellant threatened to harm the victim or her loved ones if she told anyone. She was afraid of him and took his threats seriously.
In 2000 or 2001, the victim's mother sent the victim and her brother to live with their aunt in Oxnard. In 2008, at age 16, the victim told her aunt what had occurred with appellant. The victim had begun cutting herself on her thighs and arms, had nightmares about appellant chasing her, and had attempted suicide. The police were called after the victim told her aunt of the abuse.
The victim was interviewed at the Sexual Assault Response Team facility, and later participated in a pretext call to appellant. He asked the victim to forgive him, acknowledged that he had kissed and licked her "down there." Appellant told her to pretend nothing had happened. After his arrest, appellant admitted that he had kissed the victim's vagina three times when she was age 8. He demonstrated to the interviewing detective how he had orally copulated the victim and acknowledged that he may have committed other sexual acts with her. In his written confession, appellant admitted he had kissed the victim's vagina and knew it was wrong, and was sorry.
In a pre-trial proceeding, defense counsel informed the prosecutor that "Any offer besides life would be entertained." The prosecutor responded he would not consider any offer other than life. In a separate proceeding, the court indicated that it assumed there was no point in trying to have further discussion regarding settlement. Defense counsel responded that he had been trying to settle and had offered a plea to a high term of 16 years as to count 1. Counsel stated that appellant was 60 years old and had no record.
The prosecutor said the People's position was that appellant would be likely to reoffend. Eight of the eleven counts carried a sentence of 15 years to life. He stated that if appellant was willing to plead to a life sentence, counsel might have more fruitful settlement discussions. Otherwise, the prosecutor wished to try the case. The matter went to trial.
DISCUSSION
Prosecutorial Misconduct
Appellant's argument consists of a list of separate instances of alleged prosecutorial misconduct. He asserts that the cumulative impact constitutes reversible error. Appellant acknowledges that defense counsel failed to timely object to each instance of alleged misconduct cited in his brief. He contends, however, that failure to object was excusable because it would have been futile.
Before closing argument, the court told counsel that it did "not really appreciate... objections during argument unless it's egregious. If [opposing counsel] says something that you think is slightly different than what the evidence is, you can comment on it when you argue, and vice versa...." Appellant contends that this created an inference that an objection would have been futile, so the general rule barring appellate review does not apply. There is nothing in the trial court's statement that would suggest, however, that it would have been futile for defense counsel to object. Moreover, since appellant now characterizes the prosecutor's statements as misconduct severe enough to require reversal, certainly trial counsel would have been expected to object if he viewed the statements as "egregious" enough to warrant an objection.
"Prosecutorial misconduct is reversible under the federal Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) "'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (Ibid.) Appellant has forfeited his claim by failing to object to the prosecutor's comments at the time they were made. (People v. Redd (2010) 48 Cal.4th 691, 734; People v. Montiel (1993) 5 Cal.4th 877, 914.) His claim also fails on the merits.
1) Comments by Trial Court and Prosecutor
Appellant claims that the court and prosecutor made improper comments to the jury that they were only having a trial because appellant wanted one. He asserts he was therefore deprived of federal and state due process and penalized for the exercise of his right to a jury trial.
The trial court addressed the prospective jurors, explaining that "[t]his is a very busy court. We have hundreds and hundreds of cases here each week, and we try our best to resolve all those cases, and we do resolve most of the case[s]. We try not to waste your valuable time on cases that can otherwise be resolved. Some cases are just not capable of resolution prior to trial, and this is one of them. [¶] As hard as we've worked to resolve this matter, we're going to work just as hard to try to get it finished as fast as possible. If you had prior experience on a jury, this may be a little bit different here. [¶] I am a real stickler for time. We try to start on time every day. If I tell you to be here at a particular time, you should be here. I will do my absolute best to start exactly at the time that I tell you."
The trial was one day long. The defense presented no evidence, and the jury rendered its verdict in 30 minutes. During closing argument the prosecutor stated that the jury was probably wondering why the matter went to trial. "The reason is every defendant has a constitutional right to a jury trial. [Appellant] was given his jury trial, and the People are confident that you're going to convict him on each and every count for which he's charged."
Defense counsel did not object. Outside the presence of the jury, he later asked if he could respond to the prosecutor's statement. Counsel was concerned that the jury interpreted the comment to mean that appellant did not want to settle the case. He wished to inform the jury that the case did not go to trial because the parties could not settle. The court indicated that it viewed reference to settlement as improper argument and denied the request.
Appellant claims the court's statements constituted an improper comment upon his right to a jury trial. Specifically, he objects to the trial court's statement that "We try not to waste your valuable time on cases that can otherwise be resolved. Some cases are just not capable of resolution prior to trial, and this is one of them. [¶] As hard as we've worked to resolve this matter, we're going to work just as hard to try to get it finished as fast as possible."
Appellant asserts that the prosecutor's statement during closing argument, quoted supra, likewise constituted a remark on the exercise of his right to stand trial. Appellant claims that these comments implied that he was guilty and expressed a "scornful attitude" for his failure to settle the case before trial. He asserts that the comments penalized him for exercising his right to a jury trial and violated his right to due process. He makes no assertion that he received harsher treatment as a result of taking the matter to trial.
Both the state and federal constitutions confer upon a defendant the right to a trial by jury. (U.S. Const., 6th Amend.; Duncan v. Louisiana (1968) 391 U.S. 145, 149-150, 155-156 [federal]; Cal.Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th297, 304 [state].) "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort...." (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) A court cannot punish a person for exercising a constitutional right, or treat a defendant more harshly because he has exercised his right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 278-279; People v. Collins, supra, 26 Cal.4th at p. 307.)
Appellant had a right to a jury trial, regardless of the weight of the evidence against him, or his failure to settle. In light of this basic constitutional right, the court's statements were improper. They were a direct comment upon appellant's decision to stand trial. Despite their impropriety, the statements do not appear to have penalized appellant in any way, or to have been made in retaliation for his exercise of his constitutional rights. We conclude that there was no violation of due process. While the prosecutor's statements unquestionably rose to the level of misconduct, appellant was not prejudiced. The remarks were not "deceptive or reprehensible, " nor did they render the trial fundamentally unfair. (People v. Guerra, supra, 37 Cal.4th at p. 1124.)
2) Reference to Victim's Demeanor and Credibility
During closing argument, the prosecutor commented on the victim's demeanor and credibility during the pretext call and while on the stand. He stated that "it seemed that it was very important for [the victim] not to come in here and cry, but to be strong...." The prosecutor told the jury that a child molestation victim may display "the whole gamut of emotion" when testifying. A victim might be "very nonchalant" and "have no affect at all, " while another might so withdrawn that "they almost come across like a robot, like it's just very methodical what they're saying."
Appellant contends that the prosecutor's assertion that victims have different demeanors "strayed outside the facts in evidence." He claims this had the effect of attempting to persuade the jury that the victim's "unaffected or unemotional demeanor should not be considered in assessing her credibility." Appellant asserts that, because there was no expert testimony introduced to explain the victim's demeanor, the prosecutor's statement was an improper attempt to bolster his argument about her credibility. There was no misconduct. A prosecutor may state matters outside the record that are drawn from common experience. (People v. Williams (1997) 16 Cal.4th 153, 221; People v. Cunningham (2001) 25 Cal.4th 926, 1026.) Any reasonable juror would know that individuals can respond differently to the same situation, and a person's demeanor will vary accordingly.
3) Appeal to Jurors for Sympathy
Appellant next asserts that the prosecutor improperly appealed to the jurors for sympathy for the victim by asking it to imagine a victim's probable discomfort in testifying about a sex offense. In his closing argument the prosecutor said, "Imagine what it would be like to be a 17-year-old girl and having a [district attorney] ask very probing questions about the parts of your vagina, and what did he do next, in front of a room full of strangers with somebody recording everything that's going on and the defendant watching while she's testifying."
Appellant cites a number of cases in which it was misconduct for a prosecutor to ask the jury to speculate about a victim's feelings: asking the jurors to think of themselves as the victim; speculating about what a murder victim might have felt as she lay dying; and to consider what a victim lost through her death. However, those cases involve very different circumstances. Here, the jury was not asked to speculate about the victim's feelings as she was being molested. Rather, it was asked to consider what was directly before it as the event had unfolded--the victim's courtroom experience during the trial. This was a proper subject for their consideration and was a necessary part of the jurors' determination of the victim's credibility. It did not constitute an improper appeal for their sympathy.
The prosecutor later made the statement, "Now, I asked about her labia. It didn't even appear like she even now [sic] what the labia what was, [sic] and I wasn't going to get into a sex education lesson. It had to be embarrassing enough for her to be here testifying." This comment was offensive. It was unnecessary to the argument and could have served to make the jury feel discomfort or embarrassment. Although the prosecutor exercised poor judgment, we cannot say these statements prejudiced appellant.
4) Appeal to Passion and Prejudice of Jury
Appellant claims that the prosecutor improperly appealed to the passion and prejudice of the jury by characterizing appellant's behavior as "horrible, " stating that he had "deviant sexual desires" and describing the contents of his confession as "offensive." He claims that these comments were calculated to evoke disdain and cloud the jury's determination of his guilt.
We disagree. This was proper argument. Moreover, they were conclusions a reasonable jury could have drawn based solely on the evidence before them. We reject appellant's contention that the jury's decision-making process would have been compromised by these descriptions. There is not a reasonable likelihood that the jury construed these remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.)
As to all of the foregoing claims of prosecutorial misconduct, any error was harmless in light of the overwhelming evidence of appellant's guilt. In addition to the victim's detailed testimony, appellant had admitted in his police statement and confession that he had engaged in sexual conduct with the victim and was sorry. Appellant has failed to show that it was reasonably probable that he would have received a more favorable result absent the alleged prosecutorial misconduct. (People v. Welch (1999) 20 Cal.4th 701, 753.)
Alleged Instructional Error
1) Reasonable Doubt Standard
Appellant argues that the prosecutor misstated the reasonable doubt standard by saying that reasonable doubt is "one that you can articulate and defend based on evidence." He claims this diluted the standard proof, reducing it to something less than an "abiding conviction that the charge is true." Appellant asserts that this "eliminated the jury's duty to 'compare and consider' all of the evidence in reaching its decision." (CALCRIM No. 220.)
Incorporating his previous arguments, appellant contends that, although he admitted that he committed three acts of oral copulation, his conviction on the remaining charges rested entirely on the victim's testimony. He reargues the allegations of misconduct, claiming that the prosecutor impermissibly bolstered the victim's credibility, influenced the jury and lowered the standard of proof. We reject these contentions for the reasons outlined above. We also reject his claim of instructional error. The jury was instructed with the reasonable doubt standard (CALCRIM No. 220) and we presume it followed the instructions given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.) Moreover, it was not error for the jury to rely entirely on the victim's testimony because it did not require corroboration. The testimony of a complaining witness in a sexual assault crime need not be corroborated. (People v. Gammage (1992) 2 Cal.4th 693, 700.)
2) Instruction with CALCRIM No. 226
The trial court instructed the jury with CALCRIM No. 226, concerning the jury's duty to evaluate the credibility of witnesses. While discussing jury instructions, the court and counsel agreed that the court would remove the text which read, "If the evidence established that a witness's character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness's character for truthfulness is good." Nevertheless, the court inadvertently failed to remove this text. Appellant claims this was error because it was unsupported by the evidence and could have been misconstrued by the jury.
No evidence was presented concerning lack of a discussion of the victim's character for truthfulness among the people who knew her. Any reasonable juror would have understood that this part of CALCRIM No. 226 did not apply. Moreover, the jury was instructed with CALCRIM No. 200, which informs it that some of the instructions may be inapplicable. That instruction states in part "... After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Any alleged error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.