Opinion
D079868
04-28-2023
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO CARDONA-CIFUENTES, Defendant and Appellant.
Thomas Owen, under appointment by Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, No. RIF1804259 Charles Koosed, Judge. Affirmed.
Thomas Owen, under appointment by Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
DO, J.
INTRODUCTION
A jury convicted Guillermo Cardona-Cifuentes of the crime of aggravated sexual assault against his then-minor stepdaughter. (Pen. Code, § 269, subd. (a)(5)). He does not dispute sufficient evidence supported the conviction, but contends the trial court abused its discretion in permitting the prosecution to impeach him with evidence of misdemeanor conduct involving moral turpitude (a sexual battery) when he testified and denied the allegations of sexual abuse made by his stepdaughter. He also contends the prosecutor committed prejudicial error by purportedly misstating the People's burden of proof in rebuttal closing argument. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Evidence
A. The People's Case
Jane Doe was 16 years old and in the 10th grade of high school when she testified against her stepfather, Cardona-Cifuentes. She was four years old when her mother began dating Cardona-Cifuentes. Soon after, the couple had a son together. Jane then lived with her mother, Cardona-Cifuentes, and her half-brother, who is five years younger.
Although she sometimes referred to Cardona-Cifuentes as "Guillermo," Jane saw Cardona-Cifuentes as her "dad," and she did as he told her. For example, if Cardona-Cifuentes told her to take out the trash or to clean her room, she did. When Jane got into trouble, Cardona-Cifuentes "[s]ometimes" disciplined or punished her. He would "smack" her with his hands anywhere on her body, including her face and bottom, or hit her with "sticks."
Jane explained she took "special classes" because she needed help with reading and writing. It is "hard" for her to say what she is thinking and feeling. (Jane's special education teacher, Mr. Y., who taught her in the seventh and eighth grades, testified Jane has a learning disability involving auditory processing issues. She has "[s]truggles with taking in information that [is] heard auditorily, and [her] mind has to take a while to process it." But otherwise Jane "operate[d] like a normal 13-year-old.")
Jane testified Cardona-Cifuentes "[t]ouched [her] body parts," on her breast and her "under," which she explained was "between [her] legs." It first happened when she was "[a]round ten years old." She was sleeping in her mother's room and woke up to Cardona-Cifuentes touching her vagina. His hand was under her clothing, and he rubbed her vagina with his finger and put his finger inside her vagina. "It felt horrible" but she did not scream or do anything because she "was scared of getting in trouble or him smacking [her]."
Cardona-Cifuentes touched Jane's vagina twice more, when she was sleeping or laying on the bed; "when no one is watching, he would just do it." She was "scared," looked away and tried to push him away but "[h]e would just shove [her] down." Both times happened at night around 3:00 a.m., after her mother left the house for work.
Cardona-Cifuentes also "used his body parts" to touch Jane. This happened three times, also when her mother was at work. She described it as his "number one" body part and explained "[h]e would usually put it inside" her vagina. She felt "a lot" of pain when he did this. She tried to stop him by pushing him away but he would "just push [her] down." He told her to be quiet and "don't make loud noises." She explained he stopped when he was tired, then he would lay on top of her and beside her. Cardona-Cifuentes told Jane that he would hurt her and she would get in trouble if she ever told anyone.
When she was 13 years old, Jane told E.R., a friend she trusted, about Cardona-Cifuentes's abuse because "[she] didn't want it to happen anymore." She told E.R. about the abuse "soon after the last time [Cardona-Cifuentes] did something." After E.R. told her to tell a teacher, Jane disclosed the abuse to Mr. Y. Mr. Y. reported the abuse and school officials then called the police.
E.R. testified she and Jane were close friends in middle school. In September 2018, when they were in the eighth grade, Jane told her that "[h]er father" had "touched her sexually." Jane said the abuse was currently taking place and had started the previous August. Jane was "very serious" during this conversation, which was unlike her usual demeanor of being "hyper" and "talkative." E.R. confirmed she told Jane "this sounded very serious and that she should tell someone like a teacher about it."
The trial court admitted evidence of what Jane told E.R., and later her teacher Mr. Y., not for the truth of the statements, but rather as evidence of a fresh complaint to show a disclosure was made and the nature of the disclosure.
Mr. Y. testified that Jane told him she was being sexually abused by "[h]er dad" on September 25, 2018. She "was very quiet and had her head down" and seemed "embarrassed." He told her that as a mandated reporter, he would have to tell the school counselor, and they went to the school office together. Police detectives responded to Jane's school that same day. Jane reported to the detectives that both digital and penile penetration had occurred the previous Friday, September 21, 2018.
That same day, a forensic nurse from a sexual assault and forensic evaluation clinic examined Jane. The exam did not reveal bruising or anything of significance to the hymen. But, as the nurse explained, the lack of any acute injury does not mean that penetration did not occur, as there could be "several different reasons that you don't see injuries on a child when even though penetration may have occurred," including that injuries to the genital area heal "very quickly."
B. Defense Case
Cardona-Cifuentes testified he began dating Jane's mother in 2006 and they had a son together. He moved in with Jane's mother when Jane was about two and a half or three years old. He lived with Jane for 11 years. He does not know Jane's birthday because, as he explained, "I'm not her father."
In response to his attorney's question whether Jane's "sexual allegations" are true, Cardona-Cifuentes responded, "For the moment, they are false." He explained that meant "these accusations [we]re made out of anger and hate." He denied he ever touched Jane's vagina, put his penis on or in her vagina, or touched her with "sexual intentions."
Cardona-Cifuentes explained "there was peace in the home" for the first 10 years he lived with Jane. But in 2018, when Jane's mother started working, Jane started disrespecting him. Jane would leave for school "very early" and when Cardona-Cifuentes tried to discourage her from leaving too early, she would tell him, "you are nothing to me" and "[y]ou are not my father." When Cardona-Cifuentes "would tell her something, she [would] talk back to [him] and she was not obeying." Jane also started going out with friends in the afternoon without permission. When Cardona-Cifuentes told Jane's mother about her misbehaviors, Jane "saw [him] with hateful eyes."
Under cross-examination, Cardona-Cifuentes again asserted "everything that [Jane] is saying is false." He agreed "touching a woman inappropriately" is "bad," and when asked if he would do that, he said "[o]f course not." He denied he touched his sister-in-law's breast when she was pregnant and came to his home to drop off a baby shower invitation. He testified Jane's older half-brother L.A. and "other people" were there when his sister-in-law dropped off the invitation. In response to the question whether he had permission to touch his sister-in-law's breast, he responded, "we know we cannot touch a person. It's forbidden."
C. People's Rebuttal Case
Cardona-Cifuentes's sister-in-law, C.P., testified in the People's rebuttal case. In April or May 2018, C.P. was pregnant and went to drop off a baby shower invitation to Jane's mother, her sister, at Cardona-Cifuentes's home. Jane's mother was not there and she found herself alone with Cardona-Cifuentes. She was sitting "adjacent" to Cardona-Cifuentes on a "love seat type sofa." They were talking when "he reached over and grabbed [her] breast."
C.P. did not give Cardona-Cifuentes permission to grab her breast. She was "startled" and "jumped," and left "[i]mmediately after." At the time of trial, C.P. had not told her sister about the incident, because she "felt ignored" when she had talked to her sister about another occasion when Cardona-Cifuentes commented about her breasts.
II.
Verdict and Sentencing
The prosecution charged Cardona-Cifuentes with five counts in a felony information:
In count 1, with sexual penetration of a child 10 years of age or younger (Pen. Code, §§ 288.7, subd. (b), 289);
In counts 2 through 4, with aggravated sexual assault of a child under 14 years of age and seven or more years younger than defendant by the act of rape (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2) or (6));
In count 5, with aggravated sexual assault of a child under 14 years of age and seven or more years younger than defendant by the act of sexual penetration with a foreign object or unknown object by force, duress, menace, fear or threat (Pen. Code, §§ 269, subd. (a)(5), 289, subd. (a)).
As we discuss in further detail later, the trial court instructed the jury that count 5 specifically involved "digital penetration."
On April 29, 2021, the jury convicted Cardona-Cifuentes of count 5. It found him not guilty of count 1 and a lesser-included offense of attempted sexual penetration of a child under age 11 (Pen. Code, §§ 664 and 288.7, subd. (b)). The jury deadlocked on counts 2 through 4, and other lesser-included offenses of count 1 and lesser-included offenses of counts 2 through 4.
In June 2021, a second jury trial commenced on counts 2 through 4, but it resulted in a mistrial based on an unintentional but prejudicial prosecutorial error related to an evidentiary ruling. The court later granted the People's motion to dismiss counts 2 through 4 in the interest of justice, with an agreement the charges would be reinstated if Cardona-Cifuentes was granted a new trial on count 5 after appeal. At sentencing in August 2021, Cardona-Cifuentes received a prison term of 15 years to life.
DISCUSSION
I.
There Was No Abuse of Discretion in the Admission of Impeachment Evidence
Cardona-Cifuentes asserts the trial court erred in permitting the prosecution to impeach him with evidence of the 2018 incident in which he grabbed his sister-in-law's breast (the sexual battery). On appeal, he appropriately does not dispute his conduct would constitute sexual battery, and thus would be conduct involving moral turpitude. (See People v. Chavez (2000) 84 Cal.App.4th 25, 27 (Chavez) [sexual battery held to be a crime of moral turpitude].) Cardona-Cifuentes instead claims the trial court abused its discretion in determining the probative value of the evidence was not substantially outweighed by the risk of undue prejudice under Evidence Code section 352, and he was prejudiced as a result. We conclude that although it was a close call, it cannot be said the trial court abused its discretion.
All further undesignated statutory references are to the Evidence Code.
Because "[m]isconduct involving moral turpitude may suggest a willingness to lie" (People v. Wheeler (1992) 4 Cal.4th 284, 290-296 (Wheeler)), a witness "may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352" (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark)." '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.'" (Clark, at p. 931, quoting Wheeler, at p. 296.)
We review a trial court's ruling to admit or exclude impeachment evidence for abuse of discretion and will not disturb the ruling "unless the trial court 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Ledesma (2006) 39 Cal.4th 641, 705.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (Clark, supra, 52 Cal.4th at p. 932.)
We first note the trial court denied the People's motion in limine to introduce evidence of the sexual battery in its case-in-chief under section 1108, ruling the uncharged conduct is "nothing at all like" the charged crimes. The court, however, cautioned defense counsel that its ruling to exclude the evidence under section 1108 "is not a wide open door" for Cardona-Cifuentes to take the stand "and pretend[ ] to be an angel," signaling its potential use as impeachment evidence.
Section 1108 provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352."
Defense counsel then filed a motion to preclude the People from impeaching Cardona-Cifuentes with evidence of the sexual battery, asserting he had not been convicted for the conduct; it was "unclear" whether sexual battery qualified as conduct involving moral turpitude (a claim he does not reprise on appeal); and the risk of prejudice from admission of the evidence was "extreme" because "[t]he jury will certainly misuse the information for propensity rather than its limited admissible purpose." In response, the People clarified that it intended to use the evidence of the sexual battery to impeach Cardona-Cifuentes if he testified or called character witnesses to testify he would not engage in this type of conduct.
Cardona-Cifuentes asserts in his opening brief on appeal that the People opposed his motion to preclude impeachment evidence of the sexual battery on the grounds "the breast-touching incident with Jane's aunt showed [Cardona-Cifuentes] had a breast-fixation, a lack of impulse control, and a willingness to act inappropriately when he had a female isolated." This is not accurate. The People made these arguments in support of its motion to admit evidence of the sexual battery as another sexual offense under section 1108, a motion the trial court had already denied by the time the parties were discussing its admission for impeachment.
The trial court correctly ruled that sexual battery is a crime of moral turpitude (see Chavez, supra, 84 Cal.App.4th at p. 27), and was relevant. Because Cardona-Cifuentes chose to testify and denied he sexually abused Jane, or that he would ever touch a woman inappropriately, he placed his credibility squarely in the middle. (Id. at p. 28 ["' "No witness[,] including a defendant who elects to testify in his own behalf[,] is entitled to a false aura of veracity."' "].) Thus evidence that Cardona-Cifuentes committed a sexual battery against his sister-in-law was relevant to his veracity, as it had"' "some tendency in reason" [citation] to shake one's confidence in his honesty.'" (Wheeler, supra, 4 Cal.4th at p. 295.)
Cardona-Cifuentes takes issue, however, with the trial court's section 352 analysis. He asserts the court abused its discretion in determining any probative value of the evidence is substantially outweighed by the risk of undue prejudice. Specifically, he contends the evidence of the sexual battery was prejudicial because it "inflamed the jury against [him], making him look like a pig of a man who would not only cheat on his wife, but [he] would do so with his pregnant sister-in-law." Under the applicable standard of review, we are compelled to reject his assertion.
The discretionary choice of the trial court to admit this evidence was a rather close call under section 352, but the discretionary ruling will" 'not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) We conclude that test has not been met here.
The trial court found the uncharged sexual battery was not remote; there was not a risk of undue prejudice because it is "not as serious as what is charged in this case"; there would not be an undue consumption of time because the prosecution indicated the sister-in-law's rebuttal testimony would be about 20 to 30 minutes; and there was not a risk of confusing the issues because the court will give, as defense counsel requested, a limiting instruction. These are factors "the court should consider" in determining whether to admit misconduct "other than a prior conviction" for impeachment. (Clark, supra, 52 Cal.4th at pp. 931-932 ["When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify."].) Having weighed the factors, the court concluded the evidence was "more probative of [Cardona-Cifuentes's] credibility given that it's a crime of moral turpitude than it is prejudicial[.]" The court's decision to admit this evidence was neither arbitrary, nor capricious, nor patently absurd.
"' "Prejudice" as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. 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 ability to do so is what makes evidence relevant.'" (People v. Doolin (2009) 45 Cal.4th 390, 438-439 (Doolin).)" '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. In applying section 352, "prejudicial" is not synonymous with "damaging." '" (People v. Karis (1988) 46 Cal.3d 612, 638.)" 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." (Doolin, at p. 439.)
Cardona-Cifuentes concedes that his commission of a sexual battery would be technically relevant in that it has some "tendency in reason" to diminish his credibility. (See § 210.) He nonetheless argues that its probative value on this point is minimal because, apart from being a crime of moral turpitude, the uncharged offense has little bearing on honesty and veracity. And because the crime is sexual in nature, he contends there is substantial risk that one or more jurors might think it indicates his propensity to engage in sexual misconduct, a prohibited inference. The argument is not without force, and it mandates a careful and delicate balancing analysis. But this is precisely the kind of balancing that we leave to the trial judge absent the most compelling of circumstances. Here, the trial court determined, among other factors, that there was insufficient risk of undue prejudice in admitting evidence of the sexual battery because it paled in comparison to the charged offenses that Cardona-Cifuentes sexually abused his stepdaughter, including by forcible sexual penetration, from the time she was 10 to 13 years old. The court's reasoning has support in California Supreme Court precedents. (See e.g., Doolin, supra, 45 Cal.4th at p. 439 [in a case involving charges of murder and attempted murder, impeachment evidence that defendant raped a 13-year-old and mistreated a former girlfriend held not unduly prejudicial because "it paled in comparison" to four witnesses' testimony that defendant tried to kill them]; People v. Eubanks (2011) 53 Cal.4th 110, 146 [concluding rebuttal character evidence that defendant mistreated her nephew by rubbing his face in feces was not unduly prejudicial where the charged offenses included first degree murder based on defendant killing her four children]; Clark, supra, 52 Cal.4th at p. 931 [holding no abuse of discretion where trial court admitted evidence of two robbery convictions as impeachment evidence despite the prior convictions being for the same crime as two of the charged offenses].)
Moreover, the court properly instructed the jury on the limited and permissible use of the evidence multiple times, including before Cardona-Cifuentes was asked about the sexual battery on cross-examination and when his sister-in-law testified about it on direct and redirect. We are required to presume the jury understood and followed the instructions they were given. (See People v. Martinez (2010) 47 Cal.4th 911, 957 (Martinez).)
The jury was instructed: "If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. [¶] Regarding the elements of a sexual battery, . . . [¶] [y]ou may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense.... [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. Do not consider this evidence for any other purpose."
In sum, we conclude the test for establishing the trial court abused its discretion in admitting the impeachment evidence has not been met here. Consequently, we conclude Cardona-Cifuentes has failed to carry his burden on appeal of affirmatively establishing error. Because we conclude there was no error, we need not and do not reach his claim of prejudice from the asserted error.
Cardona-Cifuentes also asserts the admission of the evidence of the sexual battery violated his constitutional rights to due process and a fair trial. We find no constitutional violation. The ordinary rules of evidence do not impermissibly infringe on a defendant's constitutional right to present a defense. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)" 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.'" (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) As we have just explained, the evidence was relevant and probative of Cardona-Cifuentes's credibility, and the record does not support that the jury used the evidence for an improper purpose.
II.
Cardona-Cifuentes Fails to Establish Prosecutorial Error
Cardona-Cifuentes next asserts the prosecutor committed prejudicial "misconduct" by purportedly misstating the People's burden of proof in rebuttal closing argument. The People respond that Cardona-Cifuentes forfeited this issue because he failed to request an admonition and, although his trial counsel objected to the prosecutor's arguments as burden shifting, he did not object on the ground of misstatement of the burden of proof. We exercise our discretion to reach the merits of Cardona-Cifuentes's claim without deciding forfeiture, and thus we need not reach Cardona-Cifuentes's alternative argument that reversal is required because of ineffective assistance of counsel. On the merits, we conclude there was no prosecutorial error.
"[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)
" 'The applicable federal and state standards regarding prosecutorial [error] are well established.'" (People v. Navarette (2003) 30 Cal.4th 458, 506.) "A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects' "the trial with unfairness as to make the resulting conviction a denial of due process." '" (People v. Mendoza (2007) 42 Cal.4th 686, 700.) "The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves '" 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" (Ibid.)" 'A defendant's conviction will not be reversed for prosecutorial [error], however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Tully (2012) 54 Cal.4th 952, 1010; accord People v. Young (2019) 7 Cal.5th 905, 932-933.)
Relevant here," '[i]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.'" (Hill, supra, 17 Cal.4th at p. 829.) "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).) We review a trial court's ruling on prosecutorial error for abuse of discretion and" 'objective[ly]' examine how a 'reasonable juror' would likely interpret the prosecutor's remarks." (People v. Collins (2021) 65 Cal.App.5th 333, 340.)
Defense counsel in his closing argument urged the jury to find that Jane was lying about the allegations of sexual abuse. Counsel argued Jane had made up a story and was forced to commit to it; there were "inconsistencies" in Jane's "story" and her failure to recall "the specifics" showed "where the cracks and fissures are in the story"; there was a lack of physical evidence from the forensic examination; Jane had a motive to assert false allegations against Cardona-Cifuentes because he was a "guy who is a pain in [her] ass, who is terrible to [her] mom, who treats [her] different"; and there was no "substantive reason not to believe" Cardona-Cifuentes.
In rebuttal argument, the prosecutor began by reminding the jury, "I've asked you from the beginning, hold me to my burden. Hold me to my burden to prove to you this case beyond a reasonable doubt." He then directed the jury to the instruction defining reasonable doubt. After reviewing the charged offenses and the lesser-included offenses, the prosecutor returned to the defense's argument, and said to the jury: "The defense is that it never happened. [Jane] is saying yes, it did happen over and over again. So it's either it did happen or if it didn't happen." He then addressed the specifics of defense counsel's closing argument and told the jury, "I also want to talk to you about why a lot of these arguments are unreasonable and why he's still guilty." (Italics added.)
At this time, the prosecutor displayed a PowerPoint presentation with five slides titled, "So . . . what do you believe?," and a list under a subheading titled, "Unreasonable Beliefs," that included the following bullet points:
"• Have to believe [Jane] is committed to this 'lie'
• Have to believe she wanted to lie about being sexually assaulted by [Cardona-Cifuentes] for the last 2 1/2 years
• Have to believe that she wanted to go through the trouble of having to talk to all of these people
• You'd have to believe she is so motivated by some desire to save face."
"• You'd have to believe that while she wants to get him in trouble she doesn't want to say he used his mouth at any time.
• You'd have to ignore your duty to apply the facts to the law.
• You'd have to ignore her testimony about how he forced her to have sex with him.
• Have to ignore duress, fear, menace part of instruction.
• Have to believe she knew she was lying but willingly submitted to all of these examinations"
"• Have to ignore that she is known as an honest person
• Have to ignore [E.R., Mr. Y. and the forensic nurse's] testimony
• Have to ignore that she has stayed consistent in her account since the beginning"
"• Have to ignore the dates from the last incident and the disclosure
• Have to ignore that the only issues [Cardona-Cifuentes] brings up is that she would leave the house in the morning • Have to believe that she chose the nuclear option from the beginning
• Have to assume she is able to describe sexual acts and details on the fly"
"• Have to ignore the points that she cries at
• Have to trust what he is telling you is the truth
• Have to ignore that he has no other choice but to lie.
• ULTIMATELY HAVE TO BELIEVE [Jane] IS EVIL"
Defense counsel objected to the slides and this portion of the prosecutor's argument on the grounds of prosecutorial error and improper burden shifting. The trial court overruled each objection, ruling the prosecutor's argument and slides were proper rebuttal.
On appeal, Cardona-Cifuentes asserts the prosecutor's rebuttal arguments, including the slides, "improperly mischaracterized" the People's legal burden of proof. We disagree. On this record, it is clear the prosecutor was responding to defense counsel's summation of reasons and theory as to why the jury should not believe Jane, and arguing that the defense's theory was "unreasonable." There was nothing improper about the prosecutor's rebuttal arguments. (See Centeno, supra, 60 Cal.4th at p. 672 [it is permissible to characterize the defense's theory as unreasonable].)
By way of examples, in response to defense counsel's argument that Jane made up a story and was forced to commit to it, the prosecutor argued:
"So you'd have to believe [Jane] committed to a lie and we talked about that, that even two and a half years later, she still wants to lie, but there's nothing for her to gain. You have to believe she wanted to lie about being sexually assaulted by [Cardona-Cifuentes] for the last two and a half years. You would have to believe she wanted to go through the trouble of having to talk to all of these people. You'd have to believe she's so motivated by some desire to save face."
These arguments referenced the first four bullet points in the PowerPoint presentation. In response to defense counsel's argument that Jane had a motive to lie about Cardona-Cifuentes, the prosecutor argued:
"You would have to believe that she chose the nuclear option from the beginning and that from the beginning she didn't start with a small lie . . . From the beginning, for some reason I don't like you and I don't like you so much that I'm going to come and say you're raping me, you're digitally penetrating me."
When placed in context, it is clear the prosecutor's rebuttal comments and the points in the PowerPoint slides were in direct response to defense counsel's theory that Jane made up a story about Cardona-Cifuentes' sexual abuse, had the motive to do so, and was compelled to stick to her story. In order to believe the defense's theory, the prosecutor summed up all the reasons the theory was unreasonable with the final point to the jury, that "at the end of the day, you would have to believe [Jane] is evil." As the trial court observed in overruling the defense's objections: This was "fair game for [the prosecutor] to comment on.... His comments were geared towards responding to [the defense's comments]. I don't think that's inappropriate if you say that this person is making all of this up because she has a vendetta against your client for disciplining her and telling on her and treating her differently, that she is going to make up such a heinous lie." We agree.
The prosecutor's rebuttal arguments were well within the bounds of permissible argument and did not shift or mischaracterize the People's burden of proof. Neither the prosecutor's rebuttal comments or slides referred to the People's burden of proof, nor did they attempt to characterize the burden of proof. His comments did not come close to arguments that have been found to run afoul of permissible commentary on the burden of proof. (See, e.g., People v. Ellison (2011) 196 Cal.App.4th 1342, 1351-1353 [concluding that prosecutor's comments-" 'you have to look at whether or not it's reasonable or unreasonable for the defendant to be innocent,'" " '[b]eyond a reasonable doubt is what [sic] the evidence that you're given,'" and" '[i]s it reasonable that the defendant's innocent?' "-improperly attempted to lessen the People's burden of proof by telling the jury "the beyond-reasonable-doubt standard required the jury to determine whether defendant's innocence was reasonable"].)
Here, "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.'" (Centeno, supra, 60 Cal.4th at p. 667.) Cardona- Cifuentes fails to make this showing. On this record, we find no reasonable likelihood the prosecutor's comments would have led the jury to apply the incorrect burden of proof. The court instructed the jury with CALCRIM No. 220 on reasonable doubt before opening statements, and again before closing arguments. It also instructed the jury that an attorney's remarks during closing argument are not evidence and to the extent an attorney's comments on the law conflicted with the court's instructions, the jury must follow the instructions. Again, the jury is presumed to have done so. (Martinez, supra, 47 Cal.4th at p. 957.) Moreover, the prosecutor told the jury at the start of his rebuttal argument to hold him to his burden to prove the case beyond a reasonable doubt, that he would not attempt to define "what that means," and directed the jury to the instruction defining reasonable doubt.
In sum, we conclude no prosecutorial error occurred and the trial court did not abuse its discretion in overruling defense counsel's objections. We therefore need not and do not reach Cardona-Cifuentes's claim he was prejudiced by the asserted error.
Cardona-Cifuentes further asserts the cumulative effect of the asserted evidentiary and prosecutorial errors requires reversal. "Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant." (People v. Capers (2019) 7 Cal.5th 989, 1017.) We have not found any error to aggregate. (See People v. Bolin (1998) 18 Cal.4th 297, 335 [rejecting defendant's contention that "even if harmless individually, the cumulative effect of the trial errors mandates reversal," because "we have rejected all of his claims, we perforce reject this contention as well"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DATO, Acting P. J. BUCHANAN, J.