Opinion
E064706
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN CURTIS CANNON, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1305495) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Kevin Curtis Cannon of three counts of forcible rape of a child (Pen. Code, § 261, subd. (a)(2)) and one count of forcible sodomy of a child (Pen. Code, § 286, subd. (c)(2)(C)), and the trial court sentenced him to 44 years in prison (11 years for each count). The victim was the young teenage daughter of his longtime on again, off again girlfriend. Cannon challenges his conviction on three grounds: (1) the prosecution presented false evidence to support the sodomy charge; (2) the trial court committed reversible error when it excluded a recording of the victim's police interview; and (3) the prosecutor committed reversible error in her remarks during closing argument. We conclude Cannon's arguments lack merit and affirm his convictions.
I
FACTUAL BACKGROUND
A. Prosecution's Evidence
In late 2011, Jane Doe was 14 years old and living in a one-bedroom apartment in Victorville with her mother, younger brother, and her mother's live-in boyfriend, Cannon. Doe's mother worked during the day and Cannon, who was unemployed, was often home with the children. Sometime around September 2011, while Doe's mother was at work, Cannon followed Doe into the bedroom and kissed her. Doe tried to push him away, but he forced her into the bedroom closet and raped her.
At trial, Doe explained why she did not tell her mother about this first rape. She said about a year earlier when she was 13, Cannon had tried to kiss her while they were rough-housing. Doe immediately told her mother, but her mother ended up believing Cannon's story that he had accidentally bumped heads with Doe. Doe recalled feeling helpless at that point. "It made me feel like if she don't believe me, who going to believe me, so I just left it alone." After the rape, Cannon would say things to Doe when no one was around to hear like, "you liked it," and "you want to do it again."
Cannon raped Doe a second time a couple months later, again when Doe's mother was at work. Cannon had taken her brother to the library and quickly returned to the home by himself. He told Doe she "look[ed] good" and tried to kiss her. When she avoided his advance he pushed her onto the bed and raped her. She tried but was unable to fight him off. The attack lasted for about five minutes. Afterward, Cannon told Doe her mother would not believe her if she told her what happened.
In the spring of 2012, Doe's mother kicked Cannon out of the apartment for talking with a woman who lived downstairs, and several months later Doe's family moved to Highland. Although he no longer lived with them, Cannon would still come over to the house every day.
The third rape occurred in October 2013, when Doe was 16 years old. Her mother had gone away for the weekend and asked Cannon to check on the children. When Cannon arrived, he told them to pick up some aluminum cans that were outside of the house, and Doe's brother offered to do it himself. While her brother was outside, Cannon locked the door, pulled Doe into her mother's bedroom, and tried to have anal sex with her. At trial, Doe testified his penis had penetrated her anus, but "not very far" because it had hurt, causing her to jump and squeeze her buttocks. Cannon then vaginally raped her for a few minutes until her brother knocked on the front door to get back inside. Doe recalled Cannon had used a condom that time.
Doe finally told her mother about the abuse in December 2013 after she got in trouble for not coming home from school. She told her mother she had not come home "because you never believe me about your boyfriends," then disclosed that Cannon had raped her three times. Doe's mother testified she never suspected the abuse because she never noticed anything abnormal about Doe's behavior. However, as soon as Doe told her about the rapes she believed her and immediately called the police. She said Doe never wavered in the details of her account when talking to her or the police.
Deputy Leon from the San Bernardino Police Department interviewed Doe. He testified that Doe's trial testimony was "absolutely" consistent with what she had told him during the interview. He also said Doe had seemed scared during the interview and "ashamed of what had taken place."
The People played Doe's recorded pretext call to Cannon for the jury. Doe told Cannon she had just found out she was pregnant and thought it was his child because she had not had sex with anyone else and his condom had probably broken. Cannon replied, "No, I check that because I always check my leaks." Doe asked him what she should do and he said to wait where she was and he would pick her up. The police arrested Cannon based on his reaction during the pretext call.
The prosecution also played the video of Cannon's police interview for the jury. He initially denied having sex with Doe, saying he had only ever kissed her on the cheek and rough-housed with her. However, as the interview progressed, he admitted having sex with her twice when she was 15. He said Doe had come on to him, "touch[ing her] body parts with mine," and dancing provocatively. When asked how his DNA had ended up inside Doe (a questioning tactic—the police did not DNA test because the incidents were too distant), Cannon blamed Doe, saying she may have transferred his semen to her vagina on one occasion when she had unzipped his pants and performed oral sex on him. He said Doe had had sex with him willingly, that he had never used force, and that her mother had convinced her to accuse him of rape. Near the end of the interview, Cannon said it had never crossed his mind that Doe would have told anyone about the sex; he thought it would stay "in the closet."
B. Defense Evidence
Cannon's son testified he had read Doe's diary back when they were both about 13 years old. He said Doe had written about having seen Cannon's erection through his underwear and liking what she saw. He recalled another entry where Doe wrote about rubbing her body against Cannon's and "want[ing] to be with [him]." Cannon's daughter testified she once saw Doe rub her chest against her father. She said he had pushed Doe away in response.
Cannon testified in his own defense. He said Doe had been making sexual advances towards him for years and would rub her body against his and sit in ways that revealed her cleavage. He said Doe had once grabbed his "groin area" as he was walking out of the bathroom with his pants partially unzipped, and he had pushed her off him. He described another occasion when she came on to him as he was wrestling with her and her brother. "My back was against [her brother's] back and I was arched up. [He] is not a small guy, so I applied some pressure on to him and when I looked up, Jane Doe had her mouth on my penis." He said he immediately pushed her away and told her "that was very inappropriate and good girls do not do that." He also said he had once found a few pages of Doe's diary in the trash, and she had written about feeling sorry for having a crush on her mother's boyfriend.
According to Cannon, he and Doe had sex only once and it was vaginal and consensual. He said Doe had come on to him when her mother was in Las Vegas and he had stopped by to check on them. He said all of the admissions he made during his police interviews were lies because he was scared they had found his DNA inside Doe.
II
DISCUSSION
A. The Prosecution Did Not Present False Evidence
Cannon argues the prosecutor committed misconduct in allowing Deputy Leon and Doe to give false testimony. He claims both Doe and Deputy Leon misrepresented Doe's interview statements about anal penetration at the preliminary hearing and at trial, resulting in an improper sodomy conviction. As we explain, we find no misconduct because in fact the testimony did not contradict Doe's interview statements.
1. Additional factual background
During the interview, Deputy Leon asked Doe if Cannon had ever tried to have anal sex with her and she replied, "Yes." She said it happened the third time he had raped her. She said he threw her face down onto her mother's bed, and "tried to put it in my anus but obviously that did not work." The following exchange occurred:
Deputy Leon: You said he tried to put [it] in your anus. Did he actually penetrate? Did it hurt?
Doe: No because I didn't. Like I was squeezing my butt cheeks together (laughing) so he wouldn't do . . .
Deputy Leon: But he tried to?
Doe: Yeah
Deputy Leon: And you felt it?
Doe: Yeah.
Initially, the prosecution charged Cannon with three counts of forcible rape of a child. At the preliminary hearing, Deputy Leon said Doe told him during her interview that Cannon had "grabbed her by the arm, forced her into her mother's bedroom, and threw her down on the bed face down, . . . then got on top of her, pulled her shorts down underneath her buttocks, and inserted his penis into her anus." He added, "She said it hurt so she, for lack of a better term, she squeezed, and then at which time, he then placed his penis into her vagina." When asked for clarification on what "squeezing" meant, Deputy Leon explained, "She squeezed her buttocks to prevent him from further inserting his penis into her anus." The court found sufficient evidence to hold Cannon to answer for the three counts of forcible rape, as well as one count of forcible sodomy of a child, and the prosecution later amended the complaint to add the sodomy charge.
At trial, Doe gave the testimony recounted above, that Cannon had "tried to" insert his penis into her anus. She said his penis did actually "penetrate [her] butthole," but "[n]ot far" because when it started to hurt she "jumped" and squeezed her buttocks. On cross-examination, defense counsel challenged Doe on this point, asking "Did that happen . . . Did he actually put his penis—try to put his penis in your anus?" When Doe replied yes, counsel said, "You said something to the effect and you kind of laughed when you were talking to [Deputy Leon] that you squeezed your cheeks—your butt cheeks so he couldn't put it in. . . . So did he actually put his penis in your anus? Doe responded, "He tried to. He didn't put it all the way in there." Finally, as noted above, Deputy Leon told the jury Doe's trial testimony was "absolutely" consistent with her interview statements.
2. Analysis
A prosecutor's conduct violates the federal Constitution when it "comprises a pattern of conduct so 'egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Navarette (2003) 30 Cal.4th 458, 506.) Under our state's Constitution the question is whether the prosecutor used "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (Ibid.) In this vein, the prosecution "cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted." (People v. Avila (2009) 46 Cal.4th 680, 711 (Avila).) The act of presenting false evidence, on its own, does not violate due process, however. "[T]the violation consists of failure to disclose whatever other evidence there may be that the evidence presented is false." (People v. Morales (2003) 112 Cal.App.4th 1176, 1193.) In other words, there is no misconduct where the prosecutor provides discovery contradicting the purported false testimony and the defendant has the opportunity to point out the discrepancy to the jury. (People v. Riel (2000) 22 Cal.4th 1153, 1211-1212; Avila, at p. 712.)
Avila is instructive to our analysis. In that case, the victim testified at the preliminary hearing that the defendant had lunged at him with a knife somewhere between four and 13 times, but at trial testified it was 20 times. (Avila, supra, 46 Cal.4th at pp. 711-712.) The defendant did not attempt to impeach the victim on this point at trial, but on appeal argued the prosecutor had committed misconduct by allowing the victim to falsely testify. The California Supreme Court disagreed. It explained the difference between the victim's preliminary hearing and trial testimony was an "inconsistenc[y]"—not a falsehood—and the prosecutor did not commit misconduct because the defendant had the preliminary hearing transcript and could have brought the discrepancy to the jury's attention. (Id. at p. 712.)
Here, we do not see any inconsistency between Doe's interview statements and the challenged trial testimony. In the interview, Doe told Deputy Leon she had felt Cannon try to penetrate her anus. However, Cannon seizes on the part of the interview where Deputy Leon asks the compound question "Did he actually penetrate? Did it hurt?" and Doe responded, "No because I didn't. Like I was squeezing my butt cheeks together." Cannon argues this constitutes a clear statement that he never penetrated Doe's anus. We disagree. Deputy Leon asked Doe two questions and Doe gave one answer. From that exchange alone, it is unclear whether she was saying no to the question of penetration or pain. In the context of the entire exchange however, it is clear to us Doe was saying there had been anal penetration. She said Cannon had tried to penetrate her anus, and although he did insert his penis into her anus, she prevented him from going very far inside by squeezing her buttocks. At trial, Doe said the same thing—Cannon had inserted his penis in her anus but did not get "very far" because she reacted by tensing up. The only inconsistency we see between Doe's interview and Deputy Leon's testimony at the preliminary hearing is an irrelevant one—Deputy Leon testified the penetration had hurt but Doe never said that in her interview. Penetration, not pain, is the relevant issue for the sodomy charge.
However, even if there had been an inconsistency on the issue of penetration, the court's conclusion in Avila would apply and we would find no prosecutorial misconduct. Defense counsel had the preliminary hearing transcript and attempted to impeach Doe's credibility on the issue of anal penetration. (Avila, supra, 46 Cal.4th at p. 712.)
B. The Court Properly Excluded the Video of Doe's Interview
Before trial, defense counsel sought permission to play the video of Doe's police interview for the jury so it could compare her demeanor while describing past molestation by one of her mother's other boyfriends to her demeanor while describing Cannon's assaults. Counsel argued, "When she talked about the abuse by [Mr. X] and [Mr. Y], she was crying. She sounded very believable. When she talked about the incidents with Mr. Cannon, she was no longer crying." Counsel added, "I'm doing it to show that there's a difference in how she, when telling her story, how she acts when it's the truth and when it's not." After watching the video and reading the transcript of the interview, the court ruled the proposed use of the video was inadmissible hearsay. Cannon argues that ruling was erroneous.
We review evidentiary rulings for abuse of discretion. (People v. Gutierrez (2009) 45 Cal.4th 789, 827.) Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" and is inadmissible unless subject to an exception. (Evid. Code, § 1200, subds. (a) & (b).)
Cannon argues the court's hearsay ruling was erroneous because he was not offering the video to prove the truth of Doe's statements—that she had been molested in the past—but rather to show she "behaved differently when recounting the earlier instances than she did when recounting the purported rape." For support, he cites case law holding that emotional displays are nonassertive conduct falling outside the hearsay rule. (See, e.g., People v. Snow (1987) 44 Cal.3d 216, 227 [defendant's silence upon learning of the victim's death was not a statement under the hearsay rule and was admissible to show his prior knowledge of the killing].)
The problem with Cannon's argument is that he was not offering the video solely for Doe's nonassertive conduct. For her nonassertive conduct to be relevant to her credibility, the jury would have to accept her statements that she had been molested in the past. Cannon's counsel inadvertently conceded this fact while trying to argue against the application of the hearsay rule, when he said the video would "show that there's a difference in how she, when telling her story, how she acts when it's the truth and when it's not." (Italics added.)
Cannon's reliance on People v. Garcia (1986) 178 Cal.App.3d 814 (Garcia) and People v. Montes (2014) 58 Cal.4th 809 is misplaced. Garcia involved the "state of mind" exception to the hearsay rule, which applies only when the declarant is unavailable to testify, which was not the case here. (Evid. Code, § 1251, subd. (a).) Montes involved the exception for out-of-court statements "admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief." (Montes, at p. 863.) Defense counsel was not seeking to admit Doe's interview for the effect it had on the hearer, Deputy Leon. Rather, she sought to play the entire interview to argue to the jury that Doe acted one way when recounting the prior abuse because it had actually happened and another way when recounting Cannon's abuse because she was lying. We find no abuse of discretion in the court's decision to exclude the video as hearsay.
C. Closing Arguments
Cannon argues the prosecutor committed misconduct or reversible error in two places in her closing argument. We take each in turn.
1. Rebuttal of defense argument about rape victims' reactions
During closing argument, defense counsel argued Doe had willingly had sex with Cannon, describing her as a sexually aggressive teenager who had come on to Cannon and was now "cry[ing] wolf." Defense counsel argued Doe was a large, heavyset girl who could have "beat the shit out of [Cannon]" if she were unhappy with his sexual advances. Counsel said, "She don't take rape. Not this little girl. She is not a little girl. She is a big girl who can take care of herself." As support for this theory, counsel argued Doe would have reacted differently had she actually been raped.
"We are talking about rape. What happens when you are violated, when you are forced through sheer force to do a horrible act like this? This tears you up. This is a violation of your very, very being. It is not something that, you know, he stuck it in me and I'm going to keep going on with life. No. This is something that is going to destroy your heart. It's going to destroy your moral fiber. It's going to destroy your belief in human beings. It's going to destroy your belief in your father, your father figure. It's going to destroy your life. And what do you do? You scream. You scream rape. This little girl who could not put up with a kiss is going to scream rape when it happened. But she doesn't. And when you're raped, . . . your life is not your life. You are destroyed as a human being and you do not go on like a happy-go-lucky child, like her mother described her."
Later, counsel argued, "You don't keep in the closet something as vicious and violent as a rape. She has not—the D.A. has not brought anybody in here to talk to you about how people act—okay—or don't act when it comes to rape. I am talking to you about what common knowledge says happens when you have rape. You don't have rape here . . . When the police talked to her, the officer talks about the fact that, that was Officer Leon, that she was ashamed. Okay. Now, go again to pop psychology. You know, who is ashamed when you have been violated in a violent way? Who is ashamed to come in and tell the cop? Who is ashamed? You're not ashamed."
The prosecutor responded to this argument during rebuttal, stating, "Nowhere [in the statute] does it say that you are not a victim unless you are smaller than your attacker. You are not a victim unless it utterly destroys your life. You are not a victim if you just can't function in life anymore. [¶] . . . [¶] How do teenagers cope? I submit to you they are not going to cope the same as an independent, middle-aged woman who has a job, lives on her own, no. This is a child who lives with her mom, her mom's boyfriend who takes care of her, mom's boyfriend who takes care of the kids during the day while mom is at work. That's the dynamic that's inside Jane Doe's brain. [¶] And [defense counsel] wants you to believe that you can't be a victim of rape unless you are utterly destroyed and can't function. That's doing a disservice for every victim of every crime. [¶] . . . [¶] She didn't tell. She kept it to herself, until she finally had that breaking point and got her freedom. Finally told her mom, and mom went to the police and now here you are. So it doesn't stay in the closet anymore."
Cannon contends the prosecutor's statement that the jury would be "doing a disservice for every victim of every crime" if it believed that you "can't be a victim of rape unless you are utterly destroyed and can't function" improperly urged the jury to decide the case based on their emotions as opposed to the evidence. We are not persuaded. Defense counsel introduced the argument that all victims are necessarily destroyed by rape, and the prosecutor fairly responded to it.
"[A] prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." (People v. Dykes (2009) 46 Cal.4th 731, 768 (Dykes).) "Prosecutorial comment is reversible as misconduct under the federal Constitution when it '"'so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process.'"'" (People v. Cash (2002) 28 Cal.4th 703, 733, quoting Darden v. Wainwright (1986) 477 U.S. 168, 181.) Prosecutorial comment that falls short of rendering the trial fundamentally unfair is reversible error under California law when it involves "'"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (Cash, at p. 733.)
"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
Here, defense counsel argued Doe was not a believable witness because her reaction to the rapes was not extreme or immediate enough. Counsel repeatedly argued all rape victims are necessarily "destroyed" by the abuse, to the point where their "life," "heart," "moral fiber," and "belief in human beings" dramatically and visibly changes and they are "not ashamed" of their experience. She spent a significant amount of her closing argument trying to convince the jury that because Doe's behavior did not conform to how every other victim responds in such a situation, Doe had fabricated her story. The prosecutor responded by arguing not every rape victim responds to the trauma in the same way. Her single remark that accepting the defense's unsupported stereotype of rape victims would "do[] a disservice for every victim of every crime" was a legitimate response to an argument the defense made at length. (See Dykes, supra, 46 Cal.4th at p. 771 [concluding the prosecutor's comments about race did not urge the jury to decide the case based on passions or stereotypes, but rather "represented fair rebuttal to defense counsel's suggestion that the prosecution had attempted to play on the all-White jury's emotions and racial prejudice"].) We conclude the prosecutor's remark here "'did little more than urge the jury not to be influenced by [defense] counsel's arguments, and to instead focus on the testimony and evidence in the case.'" (Ibid., quoting People v. Stanley (2006) 39 Cal.4th 913, 952.) As such, it was a proper rebuttal to the baseless and, frankly, irresponsible contention that there is a proper response to rape.
The cases Cannon relies on are readily distinguishable. In United States. v. Barker (1977) 553 F.2d 1013, the Sixth Circuit concluded the prosecutor made an impermissible character argument when he described the defendants as "undesirable people," and argued that while "desirable people don't rob banks; undesirable people do." (Id. at p. 1025.) The prosecutor had also argued, "if you can't take this evidence and find these defendants guilty on this evidence th[en] we might as well open all the banks and say, 'Come on and get the money, boys, because we'll never be able to convict them.'" (Ibid.) The court found this remark rose to the level of misconduct because it suggested that if the jurors found the evidence insufficient, going forward it would be "impossible to maintain 'law and order' in the jurors' community." (Ibid.) Such a remark impermissibly "urge[d] jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking." (United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441.)
In People v. Pitts (1990) 223 Cal.App.3d 606, the prosecutor ended his closing argument by telling the jurors, "Tonight I Can Go Home for the First Time in Seven Months and Say to Myself, I'm Not Responsible Now for Those Six Lives. You Are." (Id. at p. 700.) The court found this an improper appeal to emotions because it was intended to make the jurors feel that the lives of the six child sexual assault victims were in their hands. (Id. at p. 702.)
The prosecutor's rebuttal argument here was unlike any of these comments. She did not attack Cannon as a bad person who would commit a crime like rape; argue an acquittal would affect the prosecution of sexual assault going forward; or appeal to the jurors' emotions by making them feel responsible for Doe's life or well-being. She simply appealed to the jurors' logic by asking them not to accept defense counsel's stereotype of how victims react to rape.
2. Remarks about the reasonable doubt standard
Cannon also challenges the prosecutor's comments about the reasonable doubt standard. During closing argument, the prosecutor said: "The reasonable doubt standard. It is not beyond all doubt. You use your common sense and ask yourself what is reasonable to believe? Jane Doe, who has absolutely nothing to gain, no reason to make this up? Or the defendant who is a predator? The only reasonable verdict in this case is guilty and guilty of the forcible charges."
In response, defense counsel argued, "This case is about doubt . . . The question is, is there a doubt? Has she met her burden? [¶] It's her burden. It's not my burden . . . I could twiddle my thumbs and it's still her burden to prove this case beyond a reasonable doubt. And I submit to you that this has not happened. What we are going to see is doubt, and you have to ask yourself, is this a reasonable doubt?" Later she added, "I suggest to you that there is no proof—not proof beyond a reasonable doubt, which is her burden. She has not proven beyond a reasonable doubt that these charges exist, because we have doubts and those are the doubts I have talked about with you."
After closing argument, the court instructed the jury, "[Y]ou heard passionate argument from both attorneys. That's their job. I want to emphasize, it's only argument. You heard the evidence in the case. You're going to determine what the facts are in this case and apply the facts as you find them to the law as I read it to you and we'll provide to you in the form of jury instructions." (Italics added.) Additionally, the court had instructed the jury on the reasonable doubt standard (CALCRIM No. 220) and on following the court's instructions over attorney comments (CALCRIM No. 200) before closing argument.
Cannon contends the prosecutor's comments violated the California Supreme Court's holding in Centeno. In that case, the prosecutor displayed an image of a map outline of California and argued that the jurors could figure out which state she was showing without her needing to fill in the rest of the map. She then analogized this example to the reasonable doubt standard, arguing the jury could know the defendant was guilty even if some information were missing. (Centeno, supra, 60 Cal.4th at p. 665.)
In addition to the California image and analogy, the prosecutor told the jurors, "your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account." (Centeno, supra, 60 Cal.4th at p. 666, italics added.) She asked: "'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her . . . Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it." (Ibid.)
Cannon argues the prosecutor's comments in his case were identical to the Centeno prosecutor's comments about reasonableness, and because the Centeno court found reversible error, we must too. The comparison to Centeno fails for several reasons.
First, the comments about reasonableness in this case and Centeno are not identical. The problem with the comments in Centeno was that they "confounded the concept of rejecting unreasonable inference,"— something the jury is authorized to do—"with the standard of proof beyond a reasonable doubt." (Centeno, supra, 60 Cal.4th at p. 673.) Proof beyond a reasonable doubt is commonly described as "proof that leaves you with an abiding conviction that the charge is true" however, the evidence "need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." (Id. at p. 665, fn. 3.) As the Centeno court explained, the prosecutor "repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence." (Id. at p. 673, second italics added.) The prosecutor repeatedly told the jury to believe "what is reasonable," and defined reasonable as the "defendant abused her" and was "good for it." (Id. at pp. 671-672.)
The Centeno court drew a distinction between those remarks and proper commentary on rejecting unreasonable inferences and using common sense to interpret the evidence. The court cited with approval the prosecutor's comment in People v. Romero (2008) 44 Cal.4th 386, 416, that "the jury must '"'decide what is reasonable to believe versus unreasonable to believe' and to 'accept the reasonable and reject the unreasonable"'" because '[n]othing in [that] explanation lessened the prosecution's burden of proof.'" (Centeno, supra, 60 Cal.4th at p. 672.) The comments in Centeno did, however, dilute the reasonable doubt standard because they suggested a '"reasonable' account of the evidence" would satisfy the People's burden. (Ibid.)
The prosecutor's comments in this case were like the acceptable comments in Romero. Her statement, "You use your common sense and ask yourself what is reasonable to believe? Jane Doe, who has absolutely nothing to gain, no reason to make this up? Or the defendant who is a predator?," permissibly argued the jurors should use their common sense when evaluating Doe's and Cannon's testimony and reject unreasonable interpretations of the evidence. "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory." (Centeno, supra, 60 Cal.4th at p. 672; see also People v. Barnett (1998) 17 Cal.4th 1044, 1157 [proper for prosecutor to urge jurors to "trust their gut feelings in assessing the credibility of witnesses and resolving the conflicts in the testimony"].) The prosecutor's other statement, that "[t]he only reasonable verdict in this case is guilty," is permissible for the same reason—it is an iteration of the point that the jury should "'"accept the reasonable and reject the unreasonable"' in evaluating the evidence before it." (Centeno, at p. 673; see also People v. Jasmin (2008) 167 Cal.App.4th 98, 114-116 [prosecutor's remarking "there is but one reasonable choice to make" and urging jurors to "apply our reason" to facts and not "do the unreasonable thing" "did not reduce reasonable doubt to a mere reasonable decision"].) At no point did the prosecutor suggest to the jury a reasonable account of the evidence could support a guilty verdict.
Second, in Centeno it was the combination of the comments about reasonableness and the use of the California image that, together, "misled the jury about the applicable standard of proof and how the jury should approach its task." (Centeno, supra, 60 Cal.4th at p. 674.) The court explained the image of California was "unrelated to the evidence" and encouraged the jurors to "jump to a conclusion" about the evidence by "purporting to relate the exacting process of evaluating the case to answering a simple trivia question." (Id. at pp. 669, 671.) The court warned against the use of visual aids meant to illustrate the reasonable doubt standard and "enliven closing argument" because it risks misleading the jury "by oversimplifying and trivializing the deliberative process." (Id. at pp. 668, 671.) Unlike in Centeno, the prosecutor here did not use visual aids to clarify the jury's task by relating it to a more common experience or presenting a hypothetical "whose answer involves a single empirical fact." (Id. at p. 671.)
Third, the Centeno court concluded the harm the prosecutor's comments and imagery caused was compounded by the fact "[her] argument was the last word on the subject." (Centeno, supra, 60 Cal.4th at p. 677.) Specifically, the trial court did not admonish the jury after closing argument that counsel's arguments were not law and to follow the law stated in its instructions—instead, it "gave additional instructions focusing on lesser included offenses and explaining the verdict forms." (Centeno, at pp. 676-677.) Here, however, in addition to instructing on attorney comment and the reasonable doubt standard before closing remarks, the trial court gave the very post-closing admonishment lacking in Centeno. It reminded the jurors they must follow its instruction on the law over the "passionate argument" the attorneys had just presented.
As a result, "[o]ur conclusion that the prosecutor's comments did not cause a misunderstanding of the reasonable doubt instruction is reinforced by the fact that the trial court had repeatedly admonished the jurors, both at the outset of . . . and after closing arguments, that they were required to follow the law and base their decision solely on the law and instructions as given to them by the court." (People v. Barnett, supra, 17 Cal.4th at p. 1157.) "Those admonishments were sufficient to dispel any potential confusion raised by the prosecutor's argument." (Ibid.; see also Centeno, supra, 60 Cal. 4th at p. 676 ["When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade"].)
Finally, the Centeno court was compelled to find the prosecutor's errors reversible because the evidence of guilt was not strong. The court pointed out the People "concede[d]" the case was "very close" because, among other evidentiary problems, the victim's credibility had been "called into question in several respects." (Centeno, supra, 60 Cal.4th at p. 677.) Our case was not a close one. Doe was a highly credible witness, and, because of his statements during the pretext call, Cannon was effectively forced to admit he had sex with her and contest only the element of force. For all of these reasons, we find this case unlike Centeno and reject Cannon's claim of prosecutorial error.
Cannon filed a petition for writ of habeas corpus along with his appeal, arguing his trial counsel rendered ineffective assistance by failing to properly address or object to the matters he raises on appeal. Because we have considered the substance of his challenges and found them meritless, we conclude he was not deprived of his right to effective assistance of counsel and deny his petition.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: CODRINGTON
Acting P. J. FIELDS
J.