Opinion
E051118 Super.Ct.No. SWF018799
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. ARNEL DACUMOS TABAFUNDA, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent .
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Albert J. Wojcik, Judge. Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Arnel Dacumos Tabafunda guilty of two counts of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1 & 2) and one count of misdemeanor annoying or molesting a child under the age of 18 (§ 647.6, subd. (a); count 5). Defendant was sentenced to a total term of eight years in state prison. On appeal, defendant contends (1) there was insufficient evidence to sustain his convictions on counts 1 and 2; and (2) the prosecutor committed prejudicial misconduct during closing argument. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of two additional counts of committing a lewd act upon a child under the age of 14, as well as the lesser counts of simple assault in violation of section 240 (counts 3 and 4).
I
FACTUAL BACKGROUND
In November 2005, Riverside County Sheriff's Department Investigator David Tinker was dispatched to a home in Murrieta regarding a fight. The fight concerned defendant having sexually abused Jane Doe 1 (then age 11) and Jane Doe 2 (then age 16) at his home in Temecula. Defendant was married to Jane 1's mother; Jane 2 is Jane 1's cousin.
At the time of the abuse, defendant lived in a two-bedroom apartment in Temecula with Jane 1's mother, their two sons, Jane 1, and Jane 1's uncle. The uncle slept in one bedroom, while the rest of the family slept in the other bedroom, with defendant sleeping on the floor.
Detective Fred Collazo interviewed Jane 2 in August 2006. Jane 2 stated that on November 11, 2005, her mother had dropped her off at her aunt's apartment to spend the weekend with her cousin (Jane 1). Around midnight, Jane 2 was sleeping on the living room floor when she was awakened by defendant shaking her arms. Defendant asked Jane 2 if she would have sex with him. Jane 2 became "scared" and began "shaking." She told defendant "no." Defendant then attempted to bribe Jane 2 with an offer of buying her clothes or taking her shopping the next day if she would allow him to have sex with her. At that point, Jane 2 began shaking worse and told defendant, "No, please." Defendant then got up and went back to his bedroom.
At the time of trial, Jane 2 recanted her statements to Detective Collazo and claimed that defendant woke her up to ask her if she wanted to sleep on the couch. She explained that she misunderstood defendant's offer because he spoke in Tagalog and that she panicked because he was a stranger to her at that time and she thought he was going to rape her. Detective Collazo testified that Jane 2 never mentioned to him that defendant spoke in Tagalog or that she was afraid of being raped.
Jane 2 sat in the living room crying. She attempted to call her mother but could not reach her. Defendant came into the living room and asked Jane 2 what she was doing. Jane 2 called for her aunt, who came out of the bedroom. Jane 2 did not tell her aunt what had occurred because defendant was there; however, she said that she wanted to go to her other aunt's home in Murrieta and was taken there.
Investigator Tinker interviewed Jane 1. Jane 1 said there were four incidents that occurred within a 10-month period, with the most recent occurring a few weeks earlier. Jane 1 explained that, in the most recent occurrence, while she was in bed she felt defendant lie down next to her and put his arm around her. She felt his erect penis. When she began to stir, defendant got up and went to the bathroom. While pretending to sleep, Jane 1 saw defendant peering at her through a crack in the bathroom door. Defendant eventually took a shower. In another incident, Jane 1 was sleeping on her back and woke up to defendant's hand in her underwear, moving toward her vagina. When she rolled over, defendant pulled his hand out.
Investigator Tinker was unable to get detailed accounts of the other two incidents because Jane 1 became visibly upset and began crying.
At trial, Jane 1 confirmed her statements to Investigator Tinker. She stated that defendant's touching felt "weird" and "disgusting." She also felt uncomfortable and unsafe when defendant touched her. After the police were notified, Jane 1 explained that she began living with her aunt; however, she moved back to the apartment with her family, including defendant, after her aunt was laid off from work. Jane 1 stated that she and her mother had since forgiven defendant.
However, she denied telling the investigator that defendant had touched her vagina or slid his hand under her underwear to touch her vagina. She asserted that defendant never touched any private part of her body.
Jane 1 was also interviewed by a Riverside Child Assessment Team (RCAT) social worker on August 10, 2006. Jane 1 said that defendant would sometimes hug her while she slept and that, when he hugged her, she could feel his erect penis in her back. Defendant also touched the skin on her legs and her stomach over her clothes. He also touched the area of her vagina over her clothes with his hands. She would move around, and defendant would stop and leave. She explained that she did not tell her mother because her mother would not have believed her, and she did not want her brothers to miss their father if defendant went to jail.
Defendant was interviewed by Detective Collazo. He interviewed defendant in English, and they had no problem communicating. Defendant denied asking Jane 2 if she wanted to have sex with him; he explained that he had awakened her to ask her if she wanted to switch places with him and sleep in the bedroom. He also initially denied touching Jane 1 inappropriately. He ultimately admitted to putting his arm around Jane 1's abdomen, but he denied touching her vaginal area. He also admitted to having inappropriate thoughts about Jane 1, refrained from acting on his impulses. Defendant wrote an apology letter to Jane 1 acknowledging that he knew the touching was wrong and a mistake.
A child abuse accommodation syndrome expert also testified. After explaining the five identifiable components of the syndrome, the expert explained that recanting or minimizing the abuse is common. The expert further noted that many victims do not remember everything about being molested because the events are "traumatic" or "emotionally confusing," and they do not have the ability to articulate what occurred or are actively trying to forget.
II
DISCUSSION
A. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his convictions for lewd acts on Jane 1, a child under age 14 (Pen. Code, § 288, subd. (a)) (counts 1 and 2), because Jane 1's testimony was unreliable, inconsistent, and implausible. We disagree.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved of other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (Young, at p. 1181.)
"The 'inherently improbable' standard for rejecting testimony on appeal is not merely an enhanced version of implausibility, as [the defendant] seems to be asserting. 'Highly implausible' is still an argument reserved for the trier of fact. Inherently improbable, by contrast, means that the challenged evidence is 'unbelievable per se' (italics omitted), such that 'the things testified to would not seem possible.' [Citation.] The determination of inherent improbability must be made without resort to inference or deduction, and thus cannot be established by comparing the challenged testimony to other evidence in the case." (People v. Ennis (2010) 190 Cal.App.4th 721, 725.)
"Because [the defendant's] inherent improbability claim is based entirely on comparisons, contradictions and inferences, it amounts to nothing more than an attack on witness credibility, and cannot be the basis for a reversal of the judgment on appeal." (People v. Ennis, supra, 190 Cal.App.4th at p. 725.)
Section 288, subdivision (a) provides as follows: "Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
In assessing the sufficiency of the evidence in child molestation cases, our Supreme Court has acknowledged that such cases "frequently involve difficult, even paradoxical, proof problems." (People v. Jones (1990) 51 Cal.3d 294, 305.) In particular, children molested over a substantial period of time by an adult residing in their home may have "no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." (Ibid.)
Here, there was nothing implausible about Jane 1's testimony. She testified there were four incidents that occurred within a 10-month period and explained that while she was in bed she felt defendant lie down next to her and put her arm around her, and she felt his erect penis on her back. When she moved, defendant got up and peered at her through a crack in the bathroom door. In another incident, Jane 1 recalled that while she was sleeping on her back, she woke up to defendant's hand in her underwear, moving toward her vagina. When she rolled over, defendant pulled his hand out. Jane 1 confirmed her statements to Investigator Tinker and a RCAT social worker. Jane 1 informed the RCAT social worker that defendant would sometimes hug her while she slept and that when he hugged her, she could feel his erect penis on her back. She also stated that defendant also touched the skin on her legs, her stomach over her clothes and the area of her vagina over her clothes with his hands. When she would move around, defendant would stop and leave. Although defendant generally slept on the floor and Jane 1's mother slept near Jane 1, her testimony was not inherently improbable or implausible. Jane 1 explained that she would pretend to be asleep but move or change position to get defendant to stop touching her. The touching took place when defendant thought Jane 1 was sleeping and stopped when he thought she was waking up. Moreover, defendant admitted to inappropriately touching Jane 1. He also acknowledged that the touching was wrong and a mistake.
Defendant argues that Jane 1's testimony was so inconsistent that it was "perjurious" and "'so lacking in substantiality that it "amounts to no evidence at all,"'" quoting People v. Casillas (1943) 60 Cal.App.2d 785, 794. However, as our Supreme Court has made clear on repeated occasions, "'[g]enerally, "doubts about the credibility of [an] in-court witness should be left for the jury's resolution."' [Citation.] Except in . . . rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the jury's resolution . . . .' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 996.)
"While an appellate court can overturn a judgment when it concludes the evidence supporting it was 'inherently improbable,' such a finding is so rare as to be almost nonexistent. '"To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions."' [Citation.] Such cases are rare indeed. [Citation.]' [Citation.]
"The inherently improbable standard addresses the basic content of the testimony itself — i.e., could that have happened? — rather than the apparent credibility of the person testifying. Hence, the requirement that the improbability must be 'inherent,' and the falsity apparent 'without resorting to inferences or deductions.' [Citation.] In other words, the challenged evidence must be improbable '"on its face"' [citation], and thus we do not compare it to other evidence (except, perhaps, certain universally accepted and judicially noticeable facts). The only question is: Does it seem possible that what the witness claimed to have happened actually happened? [Citations.]
"Consequently, '[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citation.] 'Testimony may be rejected only when it is inherently improbable or incredible, i.e., "'unbelievable per se,"' physically impossible or "'wholly unacceptable to reasonable minds.'"' [Citation.]" (People v. Ennis, supra, 190 Cal.App.4th at pp. 728-729.)
In this case, defendant is making just that sort of "inferences and deductions" argument. He does not assert it would be impossible for him to have committed the acts of sexual molestation attributed to him but instead suggests the jury should have inferred or deduced from the circumstances in which these allegations arose, or the other evidence admitted in the case, that Jane 1 was lying. Specifically, defendant argues Jane 1's testimony is suspect because she gave "two contradictory testimonial versions about what she had told Deputy Tinker." He further posits that "[i]t cannot be both true that Jane Doe 1 remembered telling the deputies about the lewd acts while at the same time testifying that she fails to remember telling the officer about these incidents." None of these arguments is cognizable on appeal. The jury found the sexual molestation claims against defendant to be credible despite the weaknesses he points to on appeal, and we cannot second-guess that determination.
As noted by our brethren in Division 3 of the Fourth Appellate District: "A similar version of the inherently improbable argument was made in In re S.A. (2010) 182 Cal.App.4th 1128, 1149-1150 , a juvenile dependency case which also involved claims of sexual molestation, and was flatly rejected by the court: 'Kent points out discrepancies in the evidence as to exactly when the sexual abuse began and ended, where it occurred, and its frequency. He also claims S.A.'s testimony is implausible because, for instance, she wrote in her diary that she lost her virginity to David, and she did not write about any sexual abuse by Kent; . . . S.A. was happy to have Kent adopt her; her physicians never saw any sign of abuse; and she had earlier recanted allegations of abuse to a social worker and police officers. Kent also argues that because S.A. was sexually abused in Trinidad, her "acting out" cannot possibly be attributed to any sexual abuse by him. [¶] None of the matters Kent raises suggests S.A.'s testimony or other evidence supporting the court's ruling is inherently improbable. The matters do not show any physical impossibility, apparent falsity or extreme outlandishness. Rather, inconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court. . . . Under the guise of inherent improbability, Kent invites us to usurp the juvenile court's factfinding role, which we decline to do. [Citation.]'" (People v. Ennis, supra, 190 Cal.App.4th at pp. 730-731.)
Jane 1's testimony was not on the whole inherently incredible or physically impossible. Accordingly, the cases upon which defendant relies to support his challenge to the sufficiency of the evidence are distinguishable because in all of them the evidence relied upon by the prosecution was so improbable as to be incredible. (See, e.g., In re Eugene M. (1976) 55 Cal.App.3d 650, 658-659; People v. Reyes (1974) 12 Cal.3d 486, 497-499; People v. Lang (1974) 11 Cal.3d 134, 137, 139; People v. Carvalho (1952) 112 Cal.App.2d 482, 489-491; People v. Casillas, supra, 60 Cal.App.2d at pp. 792-794; People v. Headlee (1941) 18 Cal.2d 266, 273-275.)
It was the jury's function to resolve inconsistencies and contradictions in Jane 1's testimony. (See People v. Jones, supra, 51 Cal.3d at p. 322 [noting the victim's credibility is usually the "'true issue'" in child molestation cases].) On appeal, our function is limited to resolving inferences and inconsistencies in favor of the judgment. (People v. Cortes (1999) 71 Cal.App.4th 62, 73-74.)
Accordingly, viewing the evidence, as we must, in the light most favorable to respondent, we find the evidence is sufficient to support the counts of lewd acts upon Jane 1, a child under age 14.
B. Prosecutorial Misconduct
Defendant next argues that the prosecutor committed prejudicial misconduct during closing argument by appealing to the sympathy and passions of the jury and by interjecting her personal views. We again disagree.
Defendant complains that the prosecutor committed prejudicial misconduct by making the following statements during her closing argument: "You took an oath when you came in here to uphold the law, even if you didn't like it. Even if you felt that it was minimal. Even if your emotions came into play. If you felt sorry for him and thought that maybe he won't do something like this again, if you thought that the family had forgiven him and it was water under the bridge. He is still accountable for what he did in 2005 to her. And whether she wants to accept it, or her mother wants to accept it, or everyone's forgiven anyone, he still violated the law. And you promised to uphold that.
She has a right to feel comfortable in her own home. She has a right to not feel disgusted or afraid. And if her mother cannot protect her from that, at least he needs to accept responsibility for what he did. She has a right to be untouched. And that's something that we don't accept in this community, whether they do or not."
During recess, defense counsel objected to the prosecutor's argument, stating, "I didn't object during closing argument because I didn't want to call it to attention. But at this point, I wanted to object. I'm not certain about the issue, but I - I think that when the prosecution offered the statement of the defendant on the - in the PowerPoint presentation, that that wasn't . . . exactly what the police officer testified to. I could be mistaken about that. . . . [¶] I'm also asking for a mistrial based on that particular piece of evidence. . . . [¶] The other objection I had was simply at the end of the argument, that protecting the children now is not a valid reason to convict somebody of a crime. It's basically asking the jury, in a sense, to disregard the law and to err on the side of safety in terms of protecting children. And so I'm also asking for a mistrial based on that."
The prosecutor replied: "Your Honor, I think that the officer did testify to what the defendant told him, and I did read it to the officer while he was testifying. [¶] In addition, if the Court is inclined to give that instruction, I would ask that the Court just remind the jury that the evidence is what came in before them."
The trial court denied the motion for mistrial, noting, "[T]he jurors are well aware that comments, statements by Counsel are not evidence." The court further explained, "I don't believe that the People made any statements that were substantially inconsistent with what was presented during the course of trial. I don't believe any of her statements . . . attributed to the officers or statements regarding protecting children . . . as considered by the jurors would deny the defendant his right to a fair trial. . . . [¶] . . . [¶] The jurors are aware that they determine what the evidence is."
A prosecutor's conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) A prosecutor's comments are misconduct under the United States Constitution "when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) "To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct. [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 956.)
The People preliminarily argue that defendant has failed to preserve this issue by not requesting an admonition. However, defendant appears to claim that an objection to the argument would have been futile. In order to avoid a discussion of the waiver issue, and the for the sake of judicial efficiency, we will address the merits of defendant's prosecutorial misconduct claim.
"When, as here, the [prosecutorial misconduct] claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.) "'It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence . . . . [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 567.)
Defendant argues that the prosecutor's comments "appealed to the passions of the jury by implying that if [defendant] was not convicted, he would be let free to repeat his lewd conduct with Jane Doe 1." In support of his argument, defendant relies on In re Brian J. (2007) 150 Cal.App.4th 97 [Fourth Dist., Div. Two], which concerned proceedings to extend control of a person otherwise subject to discharge from the control of the California Youth Authority (now the Division of Juvenile Facilities) In that case, the prosecuting attorney told the jury in closing argument: "'I think we can serve both interests here by finding true. We can protect our community and insure that there are no other victims out there.'" (Id. at p. 121.) Following a sustained defense objection, "'[t]he prosecutor then concluded argument as follows: "By a finding of true, we can help that those four elements that you're saying are true, that he has a mental disorder, that he's physically dangerous to the public, that he has a problem, significant difficulties controlling that and that he's likely to reoffend. We can try our best to make sure that doesn't happen. [¶] I'd ask that you find the Petition true.'" (Ibid.) The prosecutor also "posited a scenario in which defendant's victim could later use his victimization to defend himself against molestation charges, although there was no evidence that the victim had molested or was likely to molest another." (Ibid.)
In support of a motion for mistrial, the minor's counsel had argued that the prosecutor had committed prejudicial misconduct in appealing to "'the jurors' passions, prejudices and fears by appealing to them to render a true finding in order to insure the safety of their community.'" (In re Brian J., supra, 150 Cal.App.4th at p. 121.) The trial court denied the mistrial motion but gave a curative instruction to the jury: " . . . 'You know, as I told you before, statements by the lawyers in argument are not evidence, but there's a couple [of] things I need to clarify. [¶] One, there's no evidence before you that [the victim] has molested anyone. And the second thing is your duty is not to ensure the protection of society as was implied in the argument. Your duty is to determine whether the Petition is true beyond a reasonable doubt. And that's what you must focus on in rendering your decision.'" (Id. at p. 122.) On appeal, the reviewing court determined that the trial court properly found that the prosecutor committed misconduct in his argument to the jury. (Id. at p. 123.) It concluded, however, that "the trial court's admonition to the jury was sufficient to cure any prejudice from the prosecutor's misconduct." (Ibid.)
Unlike the closing argument in Brian J., the prosecutor's closing argument in this case did not invite the jury to consider a speculative matter beyond the evidence. (See People v. Kirkes (1952) 39 Cal.2d 719, 724 [prosecutor's argument constitutes misconduct when it states as fact matters not supported by the evidence].) An appeal to the jurors' fear at the guilt phase of trial is prosecutorial misconduct (see People v. Pensinger (1991) 52 Cal.3d 1210, 1250) but, as indicated, "[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence" (People v. Ledesma (2006) 39 Cal.4th 641, 726). Insofar as the prosecutor's remark regarding community protection may be impliedly viewed as a comment on the likelihood of future reoffense by defendant, the statement was not misconduct. Defendant is taking the prosecutor's comments out of context.
We do not consider the prosecutor's comments reprehensible or deceptive. A prosecutor should not refer to facts not in evidence unless they are matters of common knowledge or drawn from common experience. (People v. Hill (1998) 17 Cal.4th 800, 819.) The prosecutor may generally comment on the danger to the community created by criminal conduct and remind the jury of its important role in the criminal justice system as long as he or she does not urge the jury to find the defendant guilty based on community sentiment or bias or as a means to "incite the jury against defendant." (People v. Adanandus (2007) 157 Cal.App.4th 496, 513.)
Even if we were to consider the prosecutor's comments to be misconduct, we would not find it reversible. "Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such "'unfairness as to make the resulting conviction a denial of due process."' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and "'it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation]." (People v. Davis (2009) 46 Cal.4th 539, 612.)
We cannot conclude the prosecutor's comments so infected the trial as to require reversal. There has been no claim or showing on appeal that the alleged prosecutorial misconduct rendered the trial fundamentally unfair. (See People v. Cash (2002) 28 Cal.4th 703, 733; Darden v. Wainwright (1986) 477 U.S. 168, 178-181 [106 S.Ct. 2464, 91 L.Ed.2d 144].) Neither does the record demonstrate a reasonable probability that a result more favorable to the defendant would have been reached in the absence of the alleged prosecutorial misconduct. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
The prosecutor's comment suggesting the community needed protection from defendant was brief and not inflammatory. (Cf. People v. Rundle (2008) 43 Cal.4th 76, 162, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The trial court fully instructed the jury regarding its responsibilities. "We presume that jurors are intelligent and capable of understanding and applying the courts instructions. [Citation.]" (People v. Butler (2009) 46 Cal.4th 847, 873.) The court told the jury, "You must not be influenced by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the People and the defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences." In addition, the court told the jury, at two different times, that "[y]ou must base the decision you make on the facts and the law," "you must determine the facts from the evidence received in the trial and not from any other source," "[i]f anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions," and "[s]tatements made by the attorneys during the trial are not evidence." Indeed, the record here suggests that the jury was not persuaded by the prosecutor's comments and did not base their decision on sympathy or passion, but followed the court's instructions as evidenced by them acquitting defendant of two counts of committing a lewd act upon Jane 1.
Under these circumstances, we find no basis for reversal on the ground of prosecutorial misconduct.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: RAMIREZ
P.J.
HOLLENHORST
J.