Opinion
G057117
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS WILLIAMS, Defendant and Appellant.
Law Offices of Mark R. Pachowicz, Pachowicz Goldenring, Mark R. Pachowicz and Jonny R. Russell for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stacy S. Schwartz, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF0680) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed. Law Offices of Mark R. Pachowicz, Pachowicz Goldenring, Mark R. Pachowicz and Jonny R. Russell for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
John Thomas Williams appeals from a judgment after a jury convicted him of forcible rape and rape of an unconscious person. Williams argues the trial court made numerous evidentiary errors, the prosecutor committed misconduct, and the court erred in instructing the jury. None of his contentions have merit, and we affirm the judgment.
FACTS
I. Substantive Facts
Seventeen-year-old Jane Doe (Victim), who was a high school senior in Ventura County, went to a music festival in Santa Ana with 20-year-old Williams. Victim and Williams were friendly, having first met at a barbeque in Oxnard, but not romantically involved.
Because of the uniqueness of Jane Doe's name and initials, and to protect her identity, we refer to her as Victim. (Cal. Rules of Court, rule 8.90(b)(4).)
At the festival, Victim may have ingested marijuana. After the festival, Victim and Williams shared a motel room with one bed.
In the room, while Williams showered, Victim changed into a tank top and running shorts. Before she went to sleep, Victim put her coat on the bed to act as a barrier between them. Victim told Williams, "'Don't touch me.'" Victim fell asleep.
Victim woke up when she felt Williams on top of her and his penis inside her vagina; her shorts were off. She "froze" and started crying. Williams put Victim's coat over her throat and applied pressure so she could not scream. As Williams continued to thrust his penis inside her vagina, he put a pillow over her face and suffocated her. Victim thought she was going to die and pretended to be dead. After Williams ejaculated, he removed the condom, discarded it, and went into the bathroom.
Victim wrapped herself in a sheet and sat on the bed. She called her best friend, E.L. (Friend) and asked him to pick her up. Williams reentered the room.
Victim used her cellular telephone to record her conversations with Williams. In the first recording, Williams stated he "deserve[d] to get shot" and be "castrated." In the second recording, Victim reminded Williams she was 17 years old and stated, "[e]ven if it was consensual it would not be okay." Williams said, "I'm really sorry." Victim told Williams that Friend was almost there, and Williams left quickly.
Friend arrived and Victim told him that Williams had raped and smothered her. Friend eventually took Victim to a hospital.
Officer Ramiro Vergara interviewed Victim. Victim told him that Williams raped, choked, and smothered her.
Patricia Harris, a forensic sexual assault nurse examiner, interviewed and examined Victim. Harris did not discover any physical injuries to Victim. Victim told Harris that Williams raped, choked, and smothered her.
Later, after Victim's "cold call" to Williams from Santa Ana was unsuccessful, Oxnard Detective Terrance Dobrosky arranged for Victim to try again. During the call, Victim asked Williams why he "rape[d]" her. He responded, "I, I really genuinely like you, but I fucked up, I fucked up because I didn't know how to, how to communicate that in a healthy positive manner because I'm an asshole." Williams said he understood if she hated him forever. II. Procedural Facts
An information charged Williams with forcible rape (Pen. Code, § 261, subd. (a)(2), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), and rape of an unconscious person (§ 261, subd. (a)(4)) (count 2).
At Williams's first trial, Dobrosky testified. During cross-examination, it was discovered he gave the prosecution incomplete recordings of his interview with Victim. The trial court, Judge Cheri T. Pham, granted Williams's motion for a mistrial.
Before Williams's second trial, the parties filed numerous in limine motions, some of which we mention here and discuss in greater detail below. Williams filed a motion to dismiss or for evidentiary sanctions because Dobrosky recorded his interviews with Victim before and after the cold call and the prosecution failed to produce that evidence to the defense pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). The trial court denied the motion.
The prosecution sought to admit evidence of Victim's statements pursuant to the fresh-complaint doctrine and spontaneous statement exception. The trial court ruled the evidence was admissible pursuant to the fresh-complaint doctrine.
Williams filed a motion to exclude evidence of his "six-pack booking photograph" because identification was not at issue. At a hearing, after the trial court indicated the six-pack photograph was inadmissible unless identification was at issue, the parties stipulated Victim identified Williams from a six-pack photographic lineup.
Williams filed a motion requesting the trial court order the prosecution not to refer to Victim as "victim." At a hearing, the trial court denied the motion.
Williams filed a motion seeking to admit evidence of Victim's sexual conduct, i.e., her virginity, for impeachment purposes (Evid. Code, § 782). The trial court ruled the evidence was admissible only for impeachment purposes.
During opening statements, in a PowerPoint presentation, the prosecution displayed Williams's photograph taken from the six-pack photographic lineup. Williams objected. The trial court ruled the prosecution did not violate its Evidence Code section 402 ruling.
At trial, Victim testified, inter alia, concerning how she met Williams, a musician, and the incident. Victim stated the purpose of the vegan barbeque, where her friend first introduced her to Williams, was to discuss a non-profit organization Williams was starting for artists to promote themselves. She said her friends were supposed to go to the festival with her and Williams, but they canceled. Victim testified regarding the incident and her cell phone recordings, which were played for the jury. Victim stated she previously told police officers and nurses she was a virgin although she previously had nonconsensual sexual intercourse twice. She believed, based on a conversation with her pastor, that only she could "freely" give her virginity and it could not be taken from her.
Williams's counsel cross-examined Victim thoroughly about her prior inconsistent statements and testimony regarding the following: how many times she had met Williams before the concert; whether she texted him a photograph of the outfit she planned to wear to the festival; whether she was wearing a tampon or a sanitary pad when she went to sleep; and her marijuana possession and use the day of the festival. On redirect examination, Victim testified she was not sure whether she was wearing a tampon or sanitary pad when she went to sleep.
Friend testified Victim told him that the person who she went to the festival with raped and smothered her. Vergara testified Victim said she awoke to Williams thrusting his penis inside her vagina and he choked and smothered her.
At an Evidence Code section 402 hearing, Harris testified concerning her training and experience in sexual assault cases involving strangulation and a fact sheet from the Training Institute on Strangulation Prevention (TISP). The court ruled Harris's testimony was admissible but the TISP fact sheet was not. Harris testified Victim told her that when she awoke, Williams's penis was inside her vagina, and he choked and smothered her. Victim told Harris that the incident was the first time she had sexual intercourse. She also testified 50 percent of strangulation victims do not suffer an external injury.
Before Officer Javier Aceves testified, Williams objected to the introduction of evidence concerning his arrest. The trial court overruled the objection. Aceves, an officer with the Santa Ana Police Department (SAPD), testified he and his partner drove to the Oxnard Police Department (OPD) and took Williams into custody.
Later, at a hearing on the jury instructions, Williams requested a special instruction on the fresh-complaint evidence. The trial court denied the request.
Before counsel presented closing arguments, Williams filed a motion seeking an order prohibiting the prosecutor from making statements on seven categories that amounted to prosecutorial misconduct. At a hearing, the trial court discussed each item with counsel. After the court instructed the jury, counsel presented closing arguments. Williams asserts the prosecutor committed numerous instances of misconduct, which we discuss below.
The jury convicted Williams of both counts. After the trial court denied Williams's motion for a new trial, it sentenced him to six years in prison on count 1 and imposed and stayed the sentence on count 2.
DISCUSSION
I. Evidentiary Issues A. Pretrial Motions 1. Brady
Williams argues the trial court erred by denying his motion to dismiss or for sanctions because he was prejudiced by the nondisclosure of evidence. We disagree. a. Background
Before his second trial, Williams filed a motion to dismiss or to exclude Dobrosky's testimony and the cold call. He asserted the missing recordings of Dobrosky's interviews with Victim included 10 items of exculpatory evidence, two of which are relevant here. First, Victim told Dobrosky that she was wearing a "pad" and not a tampon. Second, after Dobrosky observed Victim touching her neck, he asks, "'Does your throat hurt or are you getting sick?'" Victim replied, "'No.'" The prosecution filed opposition.
At a hearing, Dobrosky testified there was a 50-minute video of his interview of Victim and her cold call with Williams. He admitted to forwarding only the 10-minute cold call to the SAPD. He also admitted he created two audio recordings and forwarded only one to the SAPD. He stated that in his written report, he did not include Victim denied using a tampon and having any injury to her neck.
The trial court stated Dobrosky's testimony was "disturbing" and "outrageous" and on one occasion made his head "almost explode[]." The court concluded there was a discovery violation. The court denied Williams's motion to dismiss or exclude the evidence. The court noted Williams had the evidence for a year. The court reasoned that although the nondisclosed evidence had "some" exculpatory value, it likely would not have made a difference. The court opined Dobrosky's conduct was egregious but not intentionally deceitful. The court opined that excluding Dobrosky's testimony and the cold call would "subvert[]" the administration of justice. b. Law
On page 25 of Williams's opening brief, appellate counsel states, "Judge Bromberg found the non-disclosed material was exculpatory Brady evidence." Appellate counsel cites to pages 323, line 24 to 324, line 2 of the reporter's transcript. Appellate counsel, who represented Williams at trial, is citing to his own argument at the hearing, and not the trial court's ruling.
"Under Brady . . . and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. The duty extends to evidence known to others acting on the prosecution's behalf, including the police. [Citations.] . . . [Citations.] For Brady purposes, evidence is material if it is reasonably probable its disclosure would alter the outcome of trial. [Citations.] [¶] 'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.]" (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709-710.) We review a Brady claim de novo but give great weight to the trial court's factual findings when supported by substantial evidence. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.) c. Analysis
Here, there was no Brady violation in the second trial because the evidence was not suppressed. Williams received the nondisclosed material about one year before the second trial. Additionally, Williams was not prejudiced. He complains the delayed disclosure forced him to alter his trial strategy and either (1) proceed with the first trial without investigating the potential Brady violation and capitalize on the impeachment evidence; or (2) move for a mistrial, investigate the potential Brady violation, and forfeit its impeachment strategy. Williams chose the latter option and was granted a mistrial. The court inquired of Williams whether he consented to that approach and he agreed. Finally, defense counsel cross-examined Victim extensively concerning her inconsistent statements about her sexual history, how many times she had met Williams before the festival, and her possession and use of marijuana the day of the festival. Thus, the court did not err by denying Williams's motion to dismiss or for sanctions. 2. Fresh-Complaint Doctrine
Williams contends the trial court erred by admitting Friend's, Vergara's, and Harris's testimony concerning Victim's statements about the rape pursuant to the fresh-complaint doctrine. We agree in part but conclude Williams was not prejudiced. a. Background
In its trial brief, the prosecution sought to admit Victim's statements she was raped pursuant to the fresh-complaint doctrine. The prosecution added Victim's statements to Friend would also be admissible as spontaneous statements.
At a hearing, the prosecution argued Victim's statements to Friend and Harris were admissible pursuant to the fresh-complaint doctrine. Over Williams objection, the trial court granted the prosecution's request, characterizing it as an "easy call" pursuant to the fresh-complaint doctrine.
Friend testified that after he picked up Victim, he drove around and parked. Victim told him that she had been raped. Victim added she awoke to Williams on top of her and smothering her with a pillow.
Harris, the nurse, testified Victim told her that when she awoke, the man's penis was inside her vagina. Victim said the man put his penis inside her multiple times and his finger one time. She said he held a coat over her throat for one minute and a pillow over her face for two minutes, and when she started to "black out," he put his fingers down her throat.
Vergara, the officer, testified Victim said she awoke to Williams thrusting his penis inside her vagina. Victim stated she screamed and tried to push Williams off of her but he first put her coat across her neck and then a pillow over her face and she could not breathe. She explained that when she was able to scream, Williams increased the thrusting of his penis. She stated Williams put his hand in her mouth and she gagged and could not scream.
Later, when discussing the instructions, Williams requested the trial court include the following special instruction: "You may only consider [Victim's] complaint only for a limited, purpose—namely, to establish the fact of, and the circumstances surrounding, . . . [V]ictim's disclosure of the assault to others if you find a disclosure was made and you decide the circumstances under which it was made are relevant to your determination as to whether the offense occurred." The prosecutor objected. Williams's counsel asserted Victim's complaint was admissible but her statements concerning the details to Lopez, Vergara, and Harris were inadmissible hearsay. The trial court denied Williams's request. b. Law
"[U]nder principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred." (People v. Brown (1994) 8 Cal.4th 746, 749-750, 763 (Brown).) "[O]nly the fact that a complaint was made, and the circumstances surrounding its making, ordinarily are admissible; admission of evidence concerning details of the statements themselves, to prove the truth of the matter asserted, would violate the hearsay rule. [Citation.]" (Id. at p. 760.)
"Caution in this regard is particularly important because, if the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault [citation], thereby converting the victim's statement into a hearsay assertion [citation]." (Brown, supra, 8 Cal.4th at p. 763.) On request, the trial court must instruct the jury as to the limited purpose for which the fresh-complaint evidence was admitted. (Id. at p. 757; People v. Manning (2008) 165 Cal.App.4th 870, 880 (Manning).)
The immediacy and voluntariness of the complaint are not determinative. (Brown, supra, 8 Cal.4th at pp. 750, 763.) The evidence must be relevant and not subject to exclusion pursuant to Evidence Code section 352. (Id. at pp. 760, 763.) We review a trial court's evidentiary rulings for an abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) c. Analysis
The Attorney General (AG) asserts Williams forfeited review of this issue because he did not identify the relevant portions of Friend's and Harris's testimony. (In re S.C. (2006) 138 Cal.App.4th 396, 406-407 [lack of record references forfeits claims].) We disagree, as it is clear Williams refers to those portions of their testimony where Victim told them the details of the crime.
Under Brown, the portions of Friend's, Harris's, and Vergara's testimony regarding Victim's statements disclosing the rape, and the surrounding circumstances of the disclosure, were relevant evidence pursuant to the fresh-complaint doctrine. (Brown, supra, 8 Cal.4th at p. 749.) Friend's testimony Victim said Williams raped her and Harris's and Vergara's testimony Williams put his penis inside her vagina, and the circumstances of those disclosures, was admissible for the nonhearsay purpose of establishing the circumstances under which Victim reported the offense to others.
However, Friend's, Harris's, and Vergara's testimony regarding Victim's other statements, such as the details and substantive content of Victim's complaint, exceeded the scope of the fresh-complaint doctrine. Their testimony included details of the offense, including the following: Williams used Victim's coat to choke her and a pillow to smother her; Williams put his penis inside her vagina multiple times and his finger inside of her vagina one time; Williams put his fingers down her throat; and when she screamed, Williams increased the thrusting of his penis. This evidence exceeded the scope of the fresh-complaint doctrine because it concerned the details of the offense, which the jury could rely on to prove the truth of the charged offenses.
The AG contends Victim's statements to Harris and Vergara were also admissible as prior consistent statements (Evid. Code, § 1236) and spontaneous statements (Evid. Code, § 1240). The trial court admitted the evidence pursuant to the fresh-complaint doctrine, and we will not now engage in analysis better suited in the trial court. (People v. Haskell (1960) 185 Cal.App.2d 267, 271.) Although the court mentioned Evidence Code section 1240, it was when Vergara testified Victim told him that she awoke to Williams having sexual intercourse with her. Vergara had just begun his testimony, and the trial court overruled defense counsel's hearsay objection, stating it was admissible pursuant to Evidence Code section 1240, "[a]t least what we heard so far anyway." At this point, Harris had not testified.
Additionally, the trial court erred by refusing Williams's request to instruct the jury on the limited purpose of this evidence. Brown stands for the proposition that when a defendant requests an instruction, "the trial court upon request must instruct the jury to consider such evidence only for the purpose of establishing that a complaint was made, so as to dispel any erroneous inference that the victim was silent, but not as proof of the truth of the content of the victim's statement. [Citations.]" (Brown, supra, 8 Cal.4th at p. 757.) The trial court erred by refusing to instruct the jury Lopez's, Vergara's, and Harris's statements concerning Victim's complaints could only be considered to establish she made a complaint. The court's error was compounded by CALCRIM No. 318, which stated the jury could consider a witness's prior statements for their truth.
Although the trial court erred by admitting some of the three witnesses' testimony pursuant to the fresh-complaint doctrine and refusing to instruct the jury on the proper use of the evidence, Williams was not prejudiced because it was not reasonably probable he would have attained a more favorable outcome if the fresh-complaint evidence had been excluded or if the court would have given the jury a limiting instruction. (Manning, supra, 165 Cal.App.4th at p. 880.)
The prosecution's case included direct testimony from Victim, and thus the jury was able to hear her directly and judge her credibility. The jury did not have to rely on Victim's secondhand statements to Friend, Vergara, and Harris, so their importance was diminished. Moreover, their testimony was consistent with and cumulative of Victim's testimony. Cumulative statements that repeat facts established by other means are not prejudicial. (Manning, supra, 165 Cal.App.4th at pp. 880-881 [failure to instruct on proper use of fresh-complaint evidence harmless error where victim testified and fresh-complaint statements consistent with and cumulative].) Williams attempts to distinguish Manning by stating the case might be more persuasive if the three nondeclarants testified instead of the declarant whose testimony was at issue. The three nondeclarants did testify. (Id. at pp. 873, 880, fn. 3.) Finally, during cell phone recordings and a cold call, Williams made several incriminating statements to Victim and apologized to her, which demonstrated a consciousness of guilt. Although the court committed error, Williams was not prejudiced. 3. Six-Pack Photograph
Williams first asserts the trial court erred in "handl[ing]" this pretrial motion but then asserts the prosecutor committed misconduct in violating the court's order. There was no error. a. Background
Williams filed a motion to exclude evidence of his "six-pack booking photograph." The motion repeatedly refers to the "six-pack booking photograph." The motion does refer to "the unflattering photograph" of him in jail clothing portraying him as "sordid," "shabby," "sullen," "disheveled," and "surly." Although the final sentence states Williams sought "an order excluding his booking photograph at trial," the motion elsewhere requests an "ordering the six-pack photograph inadmissible." The theme of the motion was the six-pack photograph was unduly prejudicial because Williams was surrounded by "five other menacing-looking men also wearing jail-issued clothing appearing to be convicts[]" and he was guilty by association.
At a hearing, when the trial court said the in limine motion was "to exclude the six-pack," Williams's counsel answered, "Yes." The prosecutor argued the six-pack photograph was relevant on the issue of identification. Williams's counsel asserted the six-pack photograph depicting Williams and five other men wearing "inmate gear" was prejudicial. The trial court opined the six pack photograph "dirties him up a little bit" and it was inadmissible unless identification became an issue. The parties stipulated Victim identified Williams from a six-pack photographic lineup.
During opening statements, the prosecution used a PowerPoint slide presentation and displayed Williams's photograph taken from the six-pack photographic lineup, labeled in part, "His booking photo." Williams objected because it violated the trial court's pretrial order. The prosecutor disagreed. The court instructed the prosecutor to take down the photograph and said they would discuss it later.
At a recess, the trial court stated "it was not a[n] [Evidence Code section] 402 to that level" and the issue arose with the six-pack photograph. The prosecutor said the issue concerned the six-pack photograph and not the picture itself, which he had a good faith belief he could use. Williams's counsel contended the photograph was improper character evidence and "we should start this whole process over." After the prosecutor repeated he had a good faith belief he could use the photograph because he used it at the first trial, the trial court stated the following: "I accept that. I actually take some responsibility for this. When we had the [Evidence Code section] 402 I excluded the six-pack and I excluded the six-pack because . . . [it was] more like a four-pack instead of a six-pack. . . . It was sloppy. I would not have recognized [Williams] in that picture by no chance. [¶] But again that falls into the so what category. It doesn't matter. I probably should have said something to the effect. I didn't think it was going to be an issue. Quite frankly, I had no clue it was going to be an issue that that picture might be coming in somehow. . . . [T]hat picture has no basis in here for any reason unless it becomes an identification issue other than to show that he looked differently."
Later, the court stated it had reviewed its rulings, and although it accepted "some responsibility" and the "picture should [not] have come in[,]" its ruling "relate[d] solely to the six-pack[,]" and the prosecutor did not violate the court's pretrial order. b. Law
It is well established that the trial court has the duty to control the proceedings during trial and to ensure evidence introduced pertains to relevant and material matters. (People v. Burnett (1993) 12 Cal.App.4th 469, 475.) A prosecutor's conduct violates 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 (Morales).) A prosecutor's conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.) We review a claim of prosecutorial error de novo. (People v. Uribe (2011) 199 Cal.App.4th 836, 860 (Uribe).) c. Analysis
Assuming this issue is preserved for review because Williams did not object based on prosecutorial error, but instead based on violating the trial court's pretrial ruling, we conclude the prosecutor did not commit error. Williams stresses that in his in limine motion he sought to exclude his booking photograph and the six-pack photograph lineup. It is true that in his motion he refers to the unflattering photograph depicting him sullen and in jail clothes and the final sentence of the motion "requests an order excluding his booking photograph." But he also repeatedly stated the basis for excluding the evidence was it depicted him with five other menacing men who were dressed in jail clothing and the jury would conclude he was guilty by association. And at the hearing Williams's counsel made that same argument. All of the motion headings reference the six-pack photograph. Nowhere does the motion indicate Williams sought to exclude (1) the booking photograph, and (2) the six-pack photographic lineup, like Williams now does in his appellate briefing. Williams's written motion and his oral arguments render the trial court's statement its pretrial ruling was limited to the six-pack photograph and the prosecutor did not violate the order reasonable.
Failure to object on grounds of prosecutorial misconduct and request an admonishment forfeits the issue. (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) A prosecutorial misconduct claim that has been forfeited can provide grounds for an argument of ineffective assistance of trial counsel in violation of the Sixth Amendment to our federal Constitution. (Ibid.)
Williams's claim the trial court was wrong in "pardon[ing]" the prosecutor's misconduct is belied by the record. The trial court believed Williams sought to exclude the six-pack photograph lineup and only belatedly accepted some responsibility for the confusion. The court did not absolve itself of its duty and commit error by allowing the prosecutor to display Williams's booking photograph.
Simply put, the prosecutor did not infect the trial with unfairness or use deceptive or reprehensible methods because he had a good faith belief, and the trial court agreed, the court's pretrial ruling was limited to the six-pack photograph lineup. The prosecutor's display of the booking photograph did not undermine the presumption of innocence, or lessen its burden of proof.
Williams's reliance on People v. Garcia (2014) 229 Cal.App.4th 302, is misplaced. In that case, the prosecution violated the trial court's pretrial ruling by eliciting evidence, including a booking photograph, and made closing arguments defendant was a lesbian to prove she sexually abused a girl she babysat. (Id. at pp. 307-310.) Another panel of this court reversed defendant's conviction because it could not conclude defendant received a fair trial. (Id. at pp. 317-318.) Garcia is inapposite because here, as we explain above, the prosecutor did not violate the trial court's pretrial ruling. Because the prosecutor did not commit misconduct, the trial court did not sanction any illicit misconduct. Our conclusion there was no error forestalls a prejudice discussion. 4. "The Victim"
Williams argues the trial court erred by denying his motion to order the prosecution to not refer to Jane Doe as "victim." We disagree. a. Background
Williams filed a motion requesting the trial court order the prosecution not to refer to Victim as "victim." At a hearing, Williams's counsel argued that if you call someone something enough times, people begin to believe it regardless of the evidence. The trial court denied the motion, reasoning it was not inflammatory and did not precondition the jury. b. Law
In People v. Williams (1860) 17 Cal. 142, 146 (Williams), the trial court referred to the deceased person as a "'victim'" when instructing the jury. Our Supreme Court cautioned against use of that word, stating the following: "The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. . . . We are not disposed to criticize language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. . . . The [c]ourt should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression." (Id. at p. 147.) While the Williams court cautioned that a trial court in a homicide case should not refer to the deceased person as a "'victim,'" the court did not address whether it was prejudicial for counsel to use the term "victim" and reversed the conviction based on a different claim. (Id. at pp. 146-148.)
In People v. Wolfe (1954) 42 Cal.2d 663, 666 (Wolfe), defendants contended the prosecutor committed prejudicial misconduct by referring to a defendant's knife as having been left in the "'victim's back.'" Relying on Williams, supra, 17 Cal. 142, defendants argued it "assume[d] the guilt of the defendant." (Wolfe, supra, 42 Cal.2d at p. 666.) Our California Supreme Court determined Williams was distinguishable, reasoning as follows: "[T]he expression did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was 'bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty.'" (Wolfe, supra, 42 Cal.2d at p. 666.) c. Analysis
The distinction between a prosecutor's use of the term "victim," as in Wolfe, and a trial court's use of it, as in Williams, is material. The prosecutor is an advocate whose role it is to prove the complaining party was the victim of a crime. The trial court is a neutral arbiter whose role it is to ensure the proceedings are conducted in a fair and orderly fashion. While it is natural for the prosecutor to argue the complaining party was the victim, it is unnatural for the court to do so because of the deference jurors give to the court's opinions, especially in a closely balanced case. Pursuant to Wolfe, it was not error for the prosecutor to refer to Victim as the victim.
Williams cites to a number of out of state authorities to support his contention the prosecutor's use of victim was error. Out-of-state authorities are not binding on California courts. (People v. Montes (2014) 58 Cal.4th 809, 884 (Montes).)
Assuming it was error, it was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonably probable].) We are convinced beyond a reasonable doubt the prosecutor's repeated use of the term victim, according to Williams at least 121 times, did not contribute to the jury's verdicts. The jury heard Victim's compelling and detailed testimony about the rape. The jury also heard Williams's incriminating statements from the recordings and the cold call. Finally, the trial court instructed the jury it "alone" was "to decide what happened" (CALCRIM No. 200), the defendant was presumed innocent and the prosecution must prove the defendant guilty beyond a reasonable doubt (CALCRIM No. 220), and nothing "the attorneys say is evidence" (CALCRIM No. 222). We presume the jurors were intelligent and capable of understanding and following all instructions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447 (Bryant).) B. Trial Motions 1. Williams's Arrest
Williams contends the trial court erred by admitting evidence of his arrest. Not so. a. Background
Williams objected to Aceves testifying concerning his arrest. The prosecutor contended the evidence was relevant for context, i.e., Aceves picked him up, brought him back, and identified him as the person arrested and in court. Williams's counsel argued the evidence was not relevant and permitted jurors to draw prejudicial inferences. After the parties would not stipulate Williams was arrested, the trial court overruled Williams's objection, ruling the evidence was relevant to demonstrate "a beginning and end" and the evidence was not unduly prejudicial.
Aceves testified he learned someone from the OPD arrested Williams and he and his partner drove there. When they arrived, officers led them to a detention cell where they took Williams into custody. Aceves identified Williams as the person who they took into custody. b. Law
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "'While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.' [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 491.)
However, relevant evidence may be excluded pursuant to Evidence Code section 352. "A trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. (Evid. Code, § 352 . . . .) . . . Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. . . . '"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. . . . [T]he statute uses the word in its etymological sense of 'prejudging' a person or cause on the basis of extraneous factors. [Citation.]" [Citation.]' [Citation.]" (People v. Scott (2011) 52 Cal.4th 452, 490-491.) The trial court has considerable discretion in determining the admissibility of evidence and we review its determination for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705 [upheld unless arbitrary, capricious, patently absurd].) c. Analysis
Here, the trial court did not abuse its discretion by admitting evidence of Williams's arrest. The jury heard evidence Victim and Williams traveled from Ventura County to Orange County to attend a music festival. The jury also heard evidence Williams raped Victim, Victim returned to Ventura County, and both SAPD and OPD were involved in the investigation. The jury heard evidence of the beginning and the middle of the story. The trial court's decision to admit evidence of the end of the story, Williams's arrest, was not patently absurd. Additionally, contrary to Williams's claim, the trial court did conduct an Evidence Code section 352 analysis. During a discussion concerning the admissibility of the evidence, the court stated, "I can't see why it's prejudicial to a [Evidence Code section] 352 issue where it's unduly prejudicial." Williams's federal constitutional rights were not implicated. 2. Nurse's Testimony
Williams asserts the trial court erred by admitting evidence concerning the visible injuries in strangulation cases. Again, we disagree. a. Background
Just before Harris was to testify, while the jury was waiting, Williams's counsel objected to admission of documents Harris relied on in forming her opinion, including the TISP fact sheet. When the trial court asked Williams's counsel to specify his request, counsel stated, "Exclude the material that she provided." At an Evidence Code section 402 hearing, Harris testified she attended a TISP training conducted by physicians and prosecutors. She opined that based on her experience the fact sheet was accurate because "some of the percentages correlate specifically with cases [she] had done." On cross-examination, Harris stated 50 percent of strangulation victims had no visible injuries. She added her personal experience supported the conclusion the TISP fact sheet was correct.
The court ended the hearing and ruled the TISP fact sheet was inadmissible. The court ruled, however, Harris could testify concerning her training, opinions, and items on the fact sheet she was familiar with subject to cross-examination. When the court inquired whether there were any other issues, Williams's counsel replied, "No."
At trial, Harris testified that based on her training and experience, 50 percent of strangulation victims do not suffer an external injury. On cross-examination, Harris agreed that in forming her opinion she was not relying on any written material. Later, she added the percentage "correlates with [her] training." b. Law
"An expert witness may give opinion testimony '[b]ased on matter (including [her] special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to [her] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [her] testimony relates, unless an expert is precluded by law from using such matter as a basis for [her] opinion.' [Citation.] 'The trial court's determination that a witness qualifies as an expert is a matter of discretion that will not be disturbed absent a showing of manifest abuse.' [Citation.]" (People v. Brown (2014) 59 Cal.4th 86, 99-100.) c. Analysis
Preliminarily, we note that at trial Williams sought to exclude the TISP fact sheet but he did not seek to prohibit Harris from testifying on this point. After the trial court ruled the fact sheet was inadmissible and Harris's testimony was admissible, Williams's counsel did not object. During Harris's testimony, Williams's counsel did not object on the grounds her opinion was improper. Williams did not raise this particular issue before the trial court, and thus it is forfeited. (People v. Partida (2005) 37 Cal.4th 428, 431, 435.)
In any event, Harris's testimony on this point was the proper subject of expert opinion. At the Evidence Code section 402 hearing, Harris testified her training and experience correlated with the TISP fact sheet. But she was clear her opinion that 50 percent of strangulation victims do not suffer visible injuries was based on her training, experience, and observations. This was proper expert opinion. (People v. Eubanks (2011) 53 Cal.4th 110, 148 [expert opinion based on extensive training and experience was proper].)
For the first time in his reply brief, Williams relies on People v. Julian (2019) 34 Cal.App.5th 878 (Julian), to argue Harris's reliance on statistical probabilities was improper. In Julian, the expert testified concerning false reporting percentages in child abuse accommodation syndrome cases. (Id. at p. 885.) The Julian court held this deprived defendant of a fair trial because her testimony went to the heart of the case, defendant's guilt. (Id. at p. 886.) Here, Harris's testimony did not go to the heart of the case, i.e., it did not invite the jury to presume Williams was guilty based on statistical probabilities. Her testimony, if believed, provided the jury with an explanation why Victim suffered no visible injuries.
Williams states Julian was decided "[n]ear the same time [his] opening brief was filed[.]" Julian was filed on April 29, 2019, and modified on May 13, 2019. Williams filed his opening brief nearly three months later on August 5, 2019.
Finally, Williams claims the trial court "abruptly ended [the Evidence Code section 402 hearing] without reason or comment[.]" The trial court's comments make it clear it was frustrated with counsel. Counsel admitted he was aware of the issue and had the documents, but he waited until just before Harris's testimony, while the jury was waiting, to raise the issue with the court. The court conducted an Evidence Code section 402 hearing to avoid any prejudice to Williams. The court allowed Williams's counsel to cross-examine Harris, and when the court heard Harris testify her opinion was based on her personal experience, the court, correctly, had heard enough. The court ruled and gave Williams's counsel the opportunity to raise any additional issues; he didn't. The court did not err. II. Prosecutorial Error A. Law
A prosecutor's conduct that infects the trial with unfairness violates the United States Constitution's due process protections. (Morales, supra, 25 Cal.4th at p. 44.) A prosecutor's use of deceptive or reprehensible methods to persuade the jury violates California law. (Ibid.) Our review is de novo. (Uribe, supra, 199 Cal.App.4th at p. 860.) Failure to object on grounds of prosecutorial misconduct and request an admonishment forfeits the issue. (Centeno, supra, 60 Cal.4th at p. 674.) B. Analysis
Williams raises numerous claims of prosecutorial misconduct. However, he did not object on grounds of prosecutorial misconduct and request an admonition to many of the statements he now complains about, and those claims are forfeited. (Centeno, supra, 60 Cal.4th at p. 674.) In any event, we will address the merits of all his claims.
Williams complains the trial court "did nothing to protect [his] right[s]." He adds, "Hearing the court say that 'objections are disfavored in argument,' the prosecutor felt free to give his most prejudicial closing and rebuttal arguments with his prepared PowerPoint slides." (Italics added.) Williams does not provide a record reference supporting his claim the court made the italicized statement. However, we found the statement, and what the court said was the following: "Argument is artful and I'm assuming and I am hoping that both of your arguments are going to be artful and going to go through seamlessly without interruption to the other side unless it's absolutely necessary. [¶] Breaking train of thought. Juries don't appreciate it and I know your oppositions don't appreciate it." The court also stated, "I'll take the objections as they come." The court added, "Argument is going to be argument. It's going to be within the confines of the law as to what can be argued. It's objectionable, then you'll make an objection and I'll deal with it."
True, the trial court has a duty to protect the fundamental rights of the accused. (People v. Fosselman (1983) 33 Cal.3d 572, 582.) But Williams cites to no place in the record where the court failed in its duty to protect his fundamental rights. Throughout closing and rebuttal argument, Williams's counsel made numerous objections, all of which the court ruled on. The court may have overruled most of those objections, but it did rule. 1. Presumption of Innocence
Williams argues the prosecutor undermined his presumption of innocence. Not so.
At the beginning of closing argument, the prosecutor stated the following: "Presumption of innocence. [Williams] is presumed to be innocent until proven guilty beyond a reasonable doubt. But there was a difference between whether somebody is presumed innocent here in court and out on the street whether something happened or not. So we start a trial and everybody is presumed innocent until the People have proven beyond a reasonable doubt that the crime occurred, all the elements of the crime. [¶] . . . [¶] Because when we have a presumption in the law, generally presumptions are there to start with, you presume something unless it's rebutted with some evidence and in this case we have a rebuttal presumption and with the evidence the People have proven [Williams] guilty beyond a reasonable doubt at this point, thus the presumption has been rebutted."
In his PowerPoint presentation, the prosecutor displayed a slide that read the following: "Presumption of Innocence (CALCRIM [No.] 220) [Williams] is presumed innocent until proven guilty beyond a reasonable doubt. Presumption of innocence vs. actual innocence; It is a rebuttable presumption. With the evidence the People have proven [Williams] guilty beyond a reasonable doubt. Thus, the presumption has been rebutted."
We have omitted PowerPoint formatting for ease of reading.
A defendant is presumed innocent until the prosecution proves him guilty. (People v. Booker (2011) 51 Cal.4th 141, 185 (Booker).) Here, the prosecutor did not contend presumed innocent did not mean actual innocence. There was no error. Williams's reliance on Patton v. Mullin (10th Cir. 2005) 425 F.3d 788, 811, where during voir dire, the prosecutor stated the presumption of innocence "[did] not mean he [was] innocent" is misplaced because the prosecutor made no such comment. Additionally, the trial court instructed the jury Williams was presumed innocent (CALCRIM No. 220), and the instructions control over any contrary argument (CALCRIM No. 200). 2. Beyond a Reasonable Doubt
Williams argues the prosecutor undermined the reasonable doubt standard. We disagree.
During his closing argument, the prosecutor stated the following: "Now, in this case there is [sic] two possible explanations; either [V]ictim is telling the truth and [Williams] is a rapist who should be convicted or [V]ictim framed [Williams] for no known reason and [Williams] lied when he admitted that he raped [V]ictim. That is not a reasonable conclusion. The only reasonable conclusion is [V]ictim is telling the truth and [Williams] is a rapist who should be convicted."
In his PowerPoint presentation, the prosecutor displayed a slide that read the following: "[Two] Possible Explanations[.] Either [V]ictim is telling the truth, and [Williams] is a rapist who should be convicted, or Victim framed [Williams] for no known reason and [Williams] lied when he admitted that he raped . . . [V]ictim." (All caps. omitted.)
The prosecution has the burden to prove the defendant guilty beyond a reasonable doubt as to each element of the offense. (Booker, supra, 51 Cal.4th at p. 185.) Here, assuming the issue was preserved for review because Williams did not object, the prosecutor's statement did not dilute the beyond a reasonable doubt standard. The prosecutor did not argue Williams had the burden to establish Victim was lying. The prosecutor was making reasonable inferences based on the evidence, either Williams raped Victim or Victim lied Williams raped her. Although there was at least one other explanation—Victim was impaired and she was mistaken—the prosecutor's either/or statement was a fair comment on the evidence. (People v. Powell (2018) 6 Cal.5th 136, 183-184 (Powell) [prosecutor's argument may be vigorous as long as fair comment on evidence and may include reasonable inferences].) There was no error.
Williams relies on a number of out-of-state cases, State v. Albino (2011) 130 Conn.App. 745, 768 , State v. Fleming (1996) 83 Wn.App. 209, 213 , People v. Cole (1980) 80 Ill.App.3d 1105, 1108 , to contend the prosecutor's statement the juror had two choices, one of which was Victim framed Williams, i.e., lied, diluted the prosecution's burden of proof. Again, we are not bound by out-of-state authority. (Montes, supra, 58 Cal.4th at p. 884.)
For the first time in his reply brief, Williams cites to Centeno, supra, 60 Cal.4th 659, to support his claim. But in that case, the prosecutor conflated the reasonable doubt standard with the concept of rejecting unreasonable inferences and "suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence." (Id. at p. 673.) The prosecutor did no such thing here.
Finally, the trial court instructed the jury that the prosecution must prove Williams guilty beyond a reasonable doubt (CALCRIM No. 220), Williams may rely on the state of the evidence and argue the prosecution failed to prove the charges beyond a reasonable doubt (CALCRIM No. 355), and the instructions control over any contrary argument (CALCRIM No. 200). (Bryant, supra, 60 Cal.4th at p. 447 [we presume the jury follows the court's instructions].) 3. Comments About Williams
Williams contends the prosecutor made improper comments about him for a number of reasons. Assuming the issues are preserved for review because Williams did not object (Centeno, supra, 60 Cal.4th at p. 674), his contentions are meritless.
Near the end of his closing argument, the prosecutor stated the following: "Who's . . . [Williams]? He is a chameleon who can change his appearance to suit his surroundings. . . . [Y]ou heard it from . . . [V]ictim. . . . [H]e was artistic, he was edgy, he was cool, mysterious, important, cares about issues, the vegan barbecue, physically harmless, artist collective, he is hip, he is a musician, he is passionate. For you he's changed his appearance; he is cleaned up, cut short hair, dress conservatively, non-threatening. Once again couldn't hurt a fly. [¶] [Victim] found out who he really was when she made the mistake of trusting him and going to sleep alone with him. He's someone who raped a 17-year-old girl." He added, "Now, as you hear that covert call again you can see that once again we have the chameleon, we have the wolf in sheep's clothing. . . . He goes back and forth between trying to be pathetic so she won't call the police and just trying to be matter of fact and talking his way out of it."
In his PowerPoint presentation, the prosecutor displayed four slides depicting Williams looking through a lens. Three of slides asked who Williams was and highlighted the differences in his persona to his friends and to the jury. The fourth slide stated, "He is a [c]hameleon. [Williams] is a chameleon who can change his appearance to suit his surroundings." a. Character Evidence
Williams relies primarily on People v. Garcia (1984) 160 Cal.App.3d 82 (Garcia), a case he describes as "on all fours" and a number of other California and out-of-state cases, to assert the prosecutor's comments suggesting he was a chameleon or wolf in sheep's clothing were improper character evidence. Not so.
"[A] defendant's nontestimonial conduct in the courtroom does not fall within the definition of 'relevant evidence' as that which 'tends logically, naturally, [or] by reasonable inference to prove or disprove a material issue' at trial. [Citations.] . . . Authorizing the consideration of such demeanor in the determination of guilt or innocence also runs the grave danger of inviting the jury to use the character of the accused to prove guilt—something that is wholly improper unless the defendant first presents evidence of his good character. [Citations.]" (Garcia, supra, 160 Cal.App.3d at p. 91, fn. omitted.)
"It goes without saying that a prosecutor may not compare a defendant to a beast for the purpose of dehumanizing him before the jury . . . ." (Powell, supra, 6 Cal.5th at p. 183.) However, "'[a]rgument may include opprobrious epithets warranted by the evidence.' [Citation.]" (Montes, supra, 58 Cal.4th at p. 890 [prosecutor called defendant "'monster,'" "'sociopath,'" "'reprehensible excuse for a human being,'" and "'urban terrorist'"].)
The prosecutor's statement Williams was a chameleon and a wolf in sheep's clothing were not so egregious that they dehumanized him before the jury. The prosecutor, in citing to evidence, was merely noting Williams changed his persona, his appearance between the time of the incident and the time of trial. There was no error.
Garcia, supra, 160 Cal.App.3d 82, is of no assistance to Williams. In that case, the court stated, "Our holding is limited to those instances where defendant's nontestimonial behavior at counsel table is not objectively relevant to any disputed issue at trial and is merely offered to show defendant's character or a trait of his character." (Id. at p. 91, fn. 7.) Williams's complaint does not concern his nontestimonial behavior at counsel table. The Garcia court added, "It should not be inferred from this analysis that we somehow disapprove of the routine practice of a jury viewing the defendant's physical appearance to see if it comports with a physical description given by a witness or to determine if the physical appearance of a defendant supports a factual finding that must be made by the trier of fact. [Citation.]" (Ibid.) The prosecutor's comments were warranted by the evidence. His out-of-state authorities are not binding on us. (Montes, supra, 58 Cal.4th at p. 884.) b. Facts not in Evidence
Williams grouses the record includes no evidence he was a chameleon or wolf in sheep's clothing. "It is misconduct for a prosecutor to refer to facts not in evidence. [Citation.]" (People v. Young (2019) 7 Cal.5th 905, 933 (Young).) We are certain the jury would understand the prosecutor's comments as metaphors. There was no error. (People v. Spencer (2018) 5 Cal.5th 642, 687-688 [use of Bengal tiger metaphor not error].) c. Griffin Error
Williams asserts the prosecutor's comments and PowerPoint slides constituted a comment on his failure to testify in violation of Griffin v. California (1965) 380 U.S. 609, 614-615 (Griffin) [prosecution may not comment on defendant's failure to testify]. Nonsense. Williams cites to no place in the record, and we found none, where the prosecutor commented on Williams's failure to testify.
In his opening brief, Williams states, "When the prosecutor could not get Williams' booking photograph admitted during closing argument to dirty him up, he decided to incorporate a PowerPoint slide that characterized Williams as a silent, loathsome reptile. (PP slide C-61)." (Italics added.) The slides in our record do not include identifying markers. But based on Williams's other references to slide C-61, we are convinced it is the slide that states the following: "[Williams] is a chameleon who can change his appearance to suit his surroundings." The slide does not mention "silent" anywhere. We caution appellate counsel not to overstate or misrepresent the record under the cloak of effective advocacy because it, at the very least, violates court rules. (Cal. Rules of Court, rule 8.204(a)(1)(C)). There was no Griffin error.
Williams relies on People v. Vance (2010) 188 Cal.App.4th 1182, but that case did not involve Griffin error. In his reply brief, for the first time, he also cites to People v. Sanchez (2014) 228 Cal.App.4th 1517, 1524-1528 (Sanchez), a case in which the court concluded there was Griffin error when the prosecutor stated defendant was "'hiding'" from the jury and asked the jury to "'pull him out.'" The prosecutor made no such comments here, and Sanchez is inapposite. 4. Appeal for Sympathy
Williams argues the prosecutor improperly appealed to sympathy by inviting the jury to view the crime through Victim's eyes. Not so.
During his closing argument, Williams's counsel argued Victim provided inconsistent statements concerning prior sexual intercourse, alcohol and marijuana use, and prior encounters and communications with Williams, and she was lying and exaggerating. As to her prior sexual intercourse, counsel said Victim's testimony concerning her pastor was initially compelling but ultimately fabricated. Counsel asserted Victim was manipulative, highlighting her changed demeanor while testifying, i.e., the helpless victim, with her recorded statements, i.e., a symbol for empowerment. When discussing the recorded conversations and her testimony concerning screaming, counsel stated, "If that is, in fact, true, that is one heck of an actress on that thing talking about something she didn't do . . . ."
During rebuttal argument, the prosecutor stated the following: "There is an issue of shame. Will God still love me if I fail? . . . There is always a pressure to conform to peer pressure, bullying, social pressures that can lead some kids to suicide; so pretty strong pressures out there." In his PowerPoint presentation, the prosecutor displayed a slide listing the pressures teenagers face, including "social pressures that often lead to suicide."
When addressing Williams's counsel's statement Victim was acting, the prosecutor said, "That sounds like an Oscar, that sounds like a whole hell of a lot of fun. [During a sexual assault examination], she gets pictures of her nude and of her private parts. Pictures become part of the case for all involved." In his PowerPoint presentation, the prosecutor displayed a slide corresponding to his argument regarding acting. The prosecutor said Williams's counsel "assassinate[d] her character" "treated [her] like garbage," and implied she was "a slut." Agreeing with the prosecutor, the trial court stated counsel was on the verge of calling Victim a slut. The court concluded counsel opened the door during argument, and the prosecutor had a right to respond.
Later, the prosecutor, when referring to a photograph of Victim wearing a short skirt she sent to Williams, argued the following: "She asked for it. That is the mentality. It's monstrous. It's absolutely monstrous. She did not deserve this. This happened to her. You heard the evidence. She did not deserve this." In his PowerPoint presentation, the prosecutor displayed a slide showing Victim wearing a hospital gown and hospital bracelet. The slide stated, "Because she didn't deserve this!"
"It is also misconduct for the prosecutor at the guilt phase of a criminal trial to 'appeal to the jury to view the crime through the eyes of the victim.' [Citation.]" (Young, supra, 7 Cal.5th at p. 933.) However, "'[r]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel.' [Citations.] Indeed, 'even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do[es] not constitute misconduct.' [Citations.] In such circumstances, the prosecutor 'cannot be charged with misconduct if his comments only spill over somewhat into a forbidden area; the departure from propriety must be a substantial one.' [Citation.]" (People v. Reyes (2016) 246 Cal.App.4th 62, 74.)
Assuming the issue was preserved for review because Williams did not object to much of what he now complains was error (Centeno, supra, 60 Cal.4th at p. 674), the prosecutor did not improperly ask the jury to view the crime through Victim's eyes. For example, he did not ask the jury to imagine the physical and emotional pain Victim must have suffered while Williams raped, choked, and smothered her. Williams's counsel during his closing argument stressed Victim's changed statements and demeanor, and contended she was an actress who was manipulative. The prosecutor's rebuttal argument fairly responded to the acting accusation by stating the investigation was burdensome and resulted in a loss of privacy. Williams's counsel also asserted Victim's testimony concerning her pastor was fabricated. The prosecutor again fairly responded by noting Victim was a religious person.
We are troubled by the prosecutor discussing teenage suicide. Williams asserts there was no evidence Victim contemplated suicide. Unfortunately, the AG does not respond to this claim. Our review of the record confirms Williams's assertion. However, the prosecutor's comment was an isolated event, included in his discussion of the pressures all teenagers face. And the trial court instructed the jury to "not let bias, sympathy, prejudice, or public opinion influence [their] decision" (CALCRIM No. 200).
Williams reliance on People v. Kipp (2001) 26 Cal.4th 1100 (Kipp), is misplaced. In that case, the prosecutor's statement concerning what the victim had lost through her death was improper but it was a brief, isolated comment that was harmless error. Here, the only comment we conclude was questionable was the prosecutor's reference to teenage suicide, but it too was brief and isolated. (Id. at p. 1130.) Kipp is of no assistance to Williams. 5. Misstated the Law
Williams contends the prosecutor misstated the law. His claim is meritless.
During closing argument, Williams's counsel highlighted evidence demonstrating Victim made false statements, including whether she was a virgin. In rebuttal, the prosecutor stated the following: "So whether [Victim] is a virgin or not, is that really relevant to whether she was raped or not? Does anybody -- once she is a victim of a crime, does anybody really have the right to know whether she is a virgin or not? Is that something that makes a difference? Is that in any way relevant to whether she was raped or not, whether she was a virgin? Of course not. That would be utterly ridiculous." The prosecutor continued, "Bottom line, whether she was a virgin or not is nobody's business." Later, the prosecutor said, "But whether she is a virgin or not is not relevant." In his PowerPoint presentation, the prosecutor displayed a slide stating, "Non virgins can be raped."
A prosecutor commits misconduct if he misstates the law. (Centeno, supra, 60 Cal.4th at p. 666.) We must consider the alleged misstatements in the context of the entire argument and the jury instructions and determine whether there is a reasonable likelihood the jury understood the comments in an erroneous manner. (Id. at p. 667.) "'[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (Ibid.)
Here, when viewed in context, the prosecutor did not misstate the law. The prosecutor argued that whether Victim had previously had sexual intercourse was not relevant to whether Williams raped her. That is correct. Evidence Victim had previously had sexual intercourse was relevant only as to her credibility, i.e., her prior statements she was a virgin, for impeachment purposes. The court admitted evidence of Victim's prior sexual history for this purpose. The prosecutor did not argue this evidence was not relevant for any purpose, i.e., impeachment, but only that it was not relevant on the issue of Victim's credibility in claiming Williams raped her. Contrary to Williams's claim, the prosecutor did not tell the jury Williams's counsel violated Victim's right to privacy. The prosecutor did not commit error. Additionally, the trial court instructed the jury on how to evaluate witness's testimony, including any untruthfulness (CALCRIM No. 226), and witness's prior statements, including believability (CALCRIM No. 318).
Williams's reliance on People v. Mendoza (1974) 37 Cal.App.3d 717, is misplaced. In that case, the prosecutor argued a violation of section 288, child molestation, required "'very little evidence.'" We agree the prosecutor may not misstate the law in an attempt to absolve itself of its burden of proof. (Centeno, supra, 60 Cal.4th at p. 666.) But that is not what happened here. 6. Facts Outside Evidence, Vouching, and Disparage Defense Counsel
Williams asserts the prosecutor referred to facts not in evidence, improperly vouched for Victim, and disparaged defense counsel. None of his contentions have merit.
During closing argument, Williams's counsel suggested Victim was not credible and may be acting. In rebuttal, the prosecutor stated the following: "She goes through a humiliating sexual assault exam. She had to have a speculum put inside her vagina so it can be spread out so they can take pictures of it. That sounds like an Oscar, that sounds like a whole hell of a lot of fun. She gets pictures of her nude and of her private parts. Pictures become part of the case for all involved. That sounds like fun. That sounds like something everybody would want to do. Loss of privacy."
After the trial court overruled Williams's counsel improper argument objection, the prosecutor continued: "Pictures to everybody involved, complete loss of privacy, police investigation, missed school, come to court, testify for long hours, sex life examined under a microscope, all of her mistakes with marijuana and alcohol examined, tell 14 strangers about her sex life and all these personal things. And not just the 14 here, you know, we have been pretty much standing room only out here too that she's got to face and talk about her sex life and all these personal things at the age of 19 years old. Tell 14 strangers about smoking marijuana, about drinking alcohol. Personal texts reviewed and scrutinized, what does this mean? Expose all these things to everybody; parents, teachers, friends, family, peers. It's all public record. Have the defense assassinate her character. She gets to be treated like garbage, then she gets to face the person who raped her."
After the trial court overruled Williams's counsel improper argument objection, the prosecutor continued: "You know, [Williams] was supposed to be like a mentor to her. She believed that [Williams] was going to give her an opportunity to do these great things, you know, this artist collective, help artists, be part of the community. And by reporting him all those doors closed, I mean. And then now her name is mud amongst all those people that would be in with [Williams]. She had every reason not to report him. And if she was just a slut, like [Williams's counsel] implies, by showing her cheesecake picture, why not be silent?" In his PowerPoint presentation, the prosecutor displayed a slide addressing what Victim endured, including, "Now, her name is mud." a. Facts not in Evidence
"It is misconduct for a prosecutor to refer to facts not in evidence. [Citation.]" (Young, supra, 7 Cal.5th at p. 933.) A prosecutor's argument may be vigorous as long as it is a fair comment on the evidence and may include reasonable inferences. (Powell, supra, 6 Cal.5th at pp. 183-184.)
Here, the prosecutor did not commit misconduct by referring to facts not in evidence. Although the prosecutor used the term "public record," it is clear from his argument his meaning was that all of this information was now publicly exposed. People v. Woods (2006) 146 Cal.App.4th 106, 115, a case that involved improper vouching and references to matters not in evidence, is of no help to Williams. The prosecutor did not commit error.
Williams cites to the prosecutor's statement Victim's "'name is mud'" and argues there was no evidence her reputation was harmed. The evidence demonstrated Victim was trying to participate in a community-based arts collective of which Williams was the founder. The prosecutor's comment was simply a reasonable inference the community would not welcome her with open arms based on her reporting the rape and the negative information that was publicly exposed. b. Vouching
"Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument. [Citations.]" (People v. Anderson (2018) 5 Cal.5th 372, 415, 420.)
Relying again on his incorrect interpretation of the prosecutor's statements regarding the sexual assault examination photographs being made public, Williams contends the prosecutor informed the jury "it was his personal and professional opinion that no young female would succumb to such an incredible invasion of physical privacy and the release of vagina photographs into the public record if that female was not in fact an actual rape victim." The prosecutor's comments did not convey that message at all. The prosecutor did not vouch for Victim because he did not suggest there was other evidence not available to the jury that supported her claim and he did not invoke his or his office's prestige to support Victim's accusation. Williams also claims the prosecutor's PowerPoint slides improperly vouched for Victim. He does not specify which slide, and his claim is forfeited. (People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [issues not supported with reasoned argument and analysis may be deemed forfeited].) c. Disparage Defense Counsel
It is prosecutorial misconduct for the prosecutor to disparage defense counsel in front of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1193 [accusing defense counsel of lying to the jury].) However, our Supreme Court has found no impropriety in egregious prosecutorial remarks aimed solely at the persuasive force of defense counsel's closing argument. (People v. Zambrano (2007) 41 Cal.4th 1082, 1155 [cataloguing cases and prosecutor's remarks], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22.)
Contrary to Williams's assertion, the prosecutor's statements Williams's counsel was assassinating Victim's character and treated her like garbage, did not improperly disparage or demean defense counsel. The prosecutor did not accuse counsel of fabricating a defense or deceiving the jury. (People v. Stitely (2005) 35 Cal.4th 514, 559-560 [prosecutor's comment defense's attempt to demean victim "'outrageous'" not misconduct but criticism of tactical approach].) The prosecutor simply made a fair inference Williams's counsel engaged in tactics designed to make Victim appear less sympathetic. The prosecutor did not commit error. 7. Impact on Victim's Family
Williams argues the prosecutor erred by inviting the jury to consider the impact of the crime on Victim's family. Again, we disagree.
During rebuttal, the prosecutor argued the following: "You might also wonder why . . . [V]ictim's family isn't here and that goes to things you shouldn't consider. You know, why isn't . . . [V]ictim not sitting here in the front row the whole time? Why is her family not sitting here? That's not something to consider and there is reasons for that. Why should they have to? Why should they have to deal with this anymore than they already have?" In his PowerPoint presentation, the prosecutor displayed a slide that stated the following: "Victim and family not here. Why should they have to be in room with this rapist? That is why [V]ictim came in, testified and left. She and her family have suffered enough."
"It is equally established that it is misconduct for a prosecutor to argue that the jury in a noncapital case . . . should consider the impact of the crime on the victim's family. [Citations.]" (People v. Vance (2010) 188 Cal.App.4th 1182, 1193.) "The justification . . . is that [it] deal[s] with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled . . . ." (Ibid.)
Assuming the issue was preserved for review because Williams did not object (Centeno, supra, 60 Cal.4th at p. 674), there was no error. The prosecutor did not ask the jury to consider the impact of the crime on Victim's family. To the contrary, during rebuttal, the prosecutor advised the jury they should not consider the reasons for the family's absence. The prosecutor's PowerPoint slide that stated Victim and her family had suffered was ill-advised but it was an isolated comment that when considered with his argument did not amount to misconduct. Because we have concluded the prosecutor did not commit error, we need not conduct a harmless error/prejudice analysis. 8. Cumulative Error
Williams asserts the cumulative effect of the prosecutor's errors was prejudicial and requires reversal. We have concluded there were two questionable comments (suicide and Victim and family suffered) but they were minor and did not amount to misconduct. Williams's cumulative error claim is thus meritless.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.