Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge, Super.Ct.No. RIF118830
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of lewd and lascivious behavior with a minor under the age of 14 (count 1—Pen. Code, § 288, subd. (a)). On appeal, defendant contends that prosecutorial misconduct committed during the People’s final closing argument deprived him of a fair trial requiring reversal of his conviction. We find that defendant forfeited the issue by failing to request the court issue an admonition to the jury. We find that such a request would not have been futile and that such an admonition would have been sufficient to cure the harm caused by any misconduct. Therefore, we affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
On July 20, 2004, Jane Doe, who was 12 years old, was staying at her grandmother’s home in Whittier. Defendant, who previously lived at the grandmother’s home, now worked for Doe’s parents and was a family friend. Defendant intended to stop over at the grandmother’s home to pick up a camera. Both Doe and defendant currently lived in Moreno Valley, approximately one mile away from one another. Defendant’s wife called Doe’s mother and asked her if she would like defendant to pick Doe up to take her home. Doe’s mother called Doe to tell her defendant would be taking her home. Defendant picked her up in his van, in which Doe sat in the front seat and defendant’s stepson sat in the back.
The drive from Whittier to Moreno Valley took between 45 minutes to an hour, during which defendant leered at Doe, played with her hand and fingers, and kissed her hand twice. Defendant asked her how old she was, guessing that she was 13 or 14; however, she informed him she was 12. Doe felt uncomfortable and scared due to defendant’s conduct during the trip.
At some point, Doe noticed that they were not taking the route to her home so she asked defendant where they were going. Defendant told her he needed to go to his house to drop something off. Defendant asked her if she had seen his home. When she replied that she had, he asked her if she had seen the upstairs, to which she replied she had not. When they arrived at defendant’s house he told her to get out of the car; he took her directly upstairs.
Defendant showed Doe his stepson’s and daughter’s rooms while his stepson accompanied them. Afterward, his stepson went downstairs. Defendant then took Doe into his room and showed her around. As they were preparing to exit the room, defendant turned around, blocking her path out. He asked Doe for a kiss and hug whilst he put his arms around her. Defendant kissed her, putting his lips on hers. Defendant attempted to close the bedroom door, but Doe put her foot over the threshold to block it and told him they should leave. They both heard defendant’s stepson coming upstairs yelling for defendant; defendant then quickly let go of Doe.
They began making their way down the staircase with Doe in front and defendant behind when defendant touched her butt. Doe characterized the touching as intentional and “purposeful.” Defendant made his way to the garage, turned on the stereo, told his stepson to go away, and asked Doe to come inside. Doe decided to follow defendant’s stepson into another portion of the house. Doe walked toward the front door where defendant joined her. Defendant told his stepson to go into the kitchen to get defendant a soda. Defendant, again, “purposely” touched Doe’s butt. All three returned to the van.
On the way to Doe’s house, defendant asked her if they were still friends. She told him they were because she was scared and did not know if he was actually returning her to her home. Defendant ensured that she knew his cell phone number, telling her she could call him whenever she needed anything. When he drove onto her driveway, he put his finger to his mouth telling her “shhh,” not to say anything.
When she arrived home she was upset and crying. She called her best friend and told him what had happened. Her friend told her she should tell someone. She told her sister-in-law, who in turn told her brother, who in turn told her mother. Her mother called the police with whom Doe later also spoke.
On August 4, 2005, the police had the grandmother initiate a pretext phone call to defendant, which they recorded and listened in on. A “[p]retext phone call is a call made to the suspect in the case, usually by a relative or actually sometimes the victim, to talk about the situation on the phone and try to obtain further information or evidence in the case.” Defendant initially denied that anything happened with Doe. However, after the grandmother told him that if he did not tell her what happened, she would tell Doe’s mother and father and call the police, defendant began to admit certain things had occurred. Defendant admitted hugging her. Defendant admitted kissing Doe; however, he maintained it was only a friendly kiss and that their lips touched only because she had moved, i.e., he intended only to kiss her cheek. He admitted touching her butt, but said it was an accident. He admitted touching her hand, but only as a friend. He admitted taking her upstairs to his room and that the hug and kiss had occurred in his room. He told the grandmother that he thought Doe was older than she was because she looks older than her age, although he admitted he actually knew how old she really was. Defendant contended that Doe came onto him, but that he told her she was too young for him. Defendant apologized for what he had done with Doe.
Police later requested defendant to come into the station for an interview, which defendant promptly did. During the initial portion of the interview, defendant repeatedly denied that anything happened between he and Doe on the day he drove her home. Defendant indicated he stopped at his house first because he wanted to drop off some food in the refrigerator. He told the officers that after giving Doe a tour of his home, she told him she liked him more than the house. He replied that she was too young for him. When the officers questioned defendant regarding his conversation with the grandmother, defendant denied telling her that he kissed Doe. After repeated denials, the officers played him a tape of the pretext phone call. Defendant then started making some admissions. Defendant admitted hugging Doe. Defendant admitted kissing her, although only as a friend. Defendant contended the kiss was only on the cheek; however, when the officer told him they had DNA evidence on Doe’s lips, he admitted the kiss was partially on Doe’s lips. He admitted the kiss and hug occurred in his bedroom. Defendant said he kissed her instinctually and that “his mind kind of lost it.” He admitted touching her hand. Defendant admitted kissing her hand because she was a friend and because she was pretty. Defendant admitted that what he had done was wrong. Defendant indicated he told Doe that he would not say anything. Defendant admitted telling Doe she could call him if she needed anything as a friend.
The People charged defendant with lewd and lascivious behavior with a child under the age of 14 (count 1—§ 288, subd. (a)). The court granted defendant formal probation for a period of four years including terms and conditions requiring defendant serve 150 days of custody in a work release program with credit for time served, register as a sex offender for life, and receive 12 months of counseling.
II. DISCUSSION
Defendant contends that certain comments made by the prosecutor during the People’s final summation were “improper and inflammatory” such that they deprived defendant of a fair trial on the mens rea requisite to convict him of the charged offense. He characterizes the prosecutor’s statements as “highly unprofessional”; “reprehensible”; an “attack[] [on] the integrity of counsel and defense attorneys in general”; and an “appeal[] to the raw emotions of the jurors, rather than to facts.” We quote at length below the portions of the People’s closing argument that defendant finds so objectionable:
“[PEOPLE:] One of the things that we are taught in law school is this. We professors—and oftentimes we play different roles in law school. Sometimes we’re the prosecution. Sometimes we’re the defense. When we’re learning how to do things. And one of the things they say to you when you’re learning to be the defense, and you’re learning what kind of arguments you might make to try to get your client off
“[DEFENSE COUNSEL:] Your Honor, I’m going to object to that.
“THE COURT: Yeah. That’s sustained. That comment, ‘to try to get your client off,’ is stricken. [¶] . . . [¶]
“[PEOPLE:] One of the arguments that you might make is—particularly where the evidence, the facts are against you, the law is against you. What they tell you to do is stand up and argue reasonable doubt and pound. Start yelling to the jury. Somebody’s going to believe you. Maybe just one of you guys is going to go, ‘Maybe that was true. Even though I sat here and heard the evidence, and they didn’t say that.’ Maybe somebody will latch on. They only need one.
“[DEFENSE COUNSEL:] Your Honor, I’m going to object.
“THE COURT: Yeah, it’s not in evidence what the professors teach. That’s stricken. [¶] . . . [¶]
“[PEOPLE:] What they did, however, and it’s actually—it’s a technique, but it’s actually pretty good. You turn this whole thing around and try to make it like the cops, they messed this whole thing up. What he wants you to do, oh, since the cops screwed this up—which the cops didn’t screw this up—then we have got to let him go.
“[DEFENSE COUNSEL:] Your Honor, I’ve got to object to ‘let him go.’
“THE COURT: That part’s stricken.
“[THE PEOPLE:] Your Honor, that’s fair argument.
“THE COURT: It suggests what punishment may or may not be, and the jury’s not to consider punishment. I don’t know that a lot turns on it. [¶] Try not to use those three words in the argument.”
“‘“It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion”—and on the same ground—“he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, italics added, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800; People v. Samayoa (1997) 15 Cal.4th 795, 841.) “The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.’” [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’” (People v. Hill, supra, at p. 820.)
Here, rather than immediately overruling defendant’s objection, which may have excused defendant from requesting an admonition, the court sustained the objection and ordered the allegedly objectionable comments stricken from the record. Thus, defendant had the opportunity to request a curative instruction, but he simply failed to do so. “By failing to press the trial court for an admonition to the jury, defense counsel waived the issue of prosecutorial misconduct as effectively as though the issue had never been raised.” (People v. Heldenburg (1990) 219 Cal.App.3d 468, 475.) Moreover, nothing indicates that such a request would have been futile. Indeed, defendant was batting a thousand with his objections to the People’s summation. If anything, the only rational implication to be taken from the record is that the trial court would have readily agreed to give such an instruction had one been requested. The court had already instructed the jury “not [to] consider for any purpose any offer of evidence that is rejected, or any evidence that is stricken by the Court. Treat it as though you had never heard of it.” Despite the court’s instruction that “[s]tatements made by the attorneys during the trial are not evidence[,]” there is no reason to believe the jury would not or did not disregard the comments by the prosecutor which the court explicitly struck.
Furthermore, we do not believe that the prosecutor’s comments amounted to prejudicial misconduct. “‘A prosecutor’s rude and intemperate behavior 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.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.] Included within the deceptive or reprehensible methods we have held to constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel. [Citation.]’ [Citation.]” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215 (Gionis).)
In Gionis, the prosecutor commented in final summation that defense counsel “was arguing out of both sides of his mouth . . . [and] that this was an example of ‘great lawyering’ which ‘doesn’t change the facts, it just makes them sound good.’” (Gionis, supra, 9 Cal.4th at pp. 1215-1216, fn. omitted.) The prosecutor also read a number of quotations regarding attorneys which strongly suggested that attorneys’ jobs required lying, deceit, and distortion. (Id. at p. 1216.) The court concluded that “[t]aken in context, the prosecutor’s remarks simply pointed out that attorneys are schooled in the art of persuasion; they did not improperly imply that defense counsel was lying.” (Ibid., fn. omitted.) It noted that statements that indicated “defense counsel was expected and permitted by law to disregard the truth in defense of his client[,]” clearly would constitute misconduct, but “[h]ere, however, the quotations did not seek to distinguish between the roles of the prosecutor and defense counsel and did not imply that counsel was offering a dishonest defense. In the context of this case, we are satisfied that the remarks properly served to remind the jury to focus on the relevant evidence and to not be swayed by argument alone.” (Id. at p. 1217, fn. 13.) Likewise, in People v. Breaux (1991) 1 Cal.4th 281, the prosecutor stated in his rebuttal argument that in law school, “students are taught ‘that if you don’t have the law on your side, argue the facts. If you don’t have the facts on your side, argue the law. If you don’t have either one of those things on your side, try to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense.’” (Id. at p. 305.) The court concluded that the prosecutor’s statements did not amount to misconduct because they “could only have been understood as cautioning the jury to rely on the evidence introduced at trial and not as impugning the integrity of defense counsel.” (Id. at p. 306.)
This is precisely what the prosecutor’s comments in the instant case were designed to do. They reminded the jury not to disregard the evidence in favor of defense counsel’s argument: “‘Maybe that was true. Even though I sat here and heard the evidence, and they didn’t say that.’” They reminded the jury that attorneys are schooled in the art of persuasion: “One of the things that we are taught in law school is this. . . . When we’re learning how to do things. And one of the things they say to you when you’re learning to be the defense, and you’re learning what kind of arguments you might make to try to get your client off—”[;] “What they tell you to do is stand up and argue reasonable doubt and pound. Start yelling to the jury”[;] “it’s a technique. . . .” The prosecutor in no way suggested that defense counsel was lying or that defense counsel, in general, were permitted to use deceit, as opposed to prosecutors who are not. Indeed, the prosecutor’s argument does not even remotely imply the use of deception by defense counsel; rather, it implies the use of “lawyering” to persuade the jury to find for defendant despite the state of the evidence. This is a perfectly legitimate argument that does not constitute misconduct.
Moreover, to the extent that defendant contends that the prosecutor’s comments comprised misconduct because they indicated that defense counsel’s job was to get defendant off, we disagree. Defense counsel’s job is to get defendant cleared of the charges, or to obtain a more favorable result than that which would occur were the defendant to be convicted as charged. This is no secret. Every member of the jury, presumably, already knows this. However, saying that this is defense counsel’s job is completely different than saying that defense counsel are permitted to and do use any method, no matter how ethically, morally, or legally taboo, to accomplish it. This the prosecutor did not do. Saying that a contractor’s job is to build a house does not imply that the contractor may and does use substandard materials to accomplish it.
Likewise, defendant’s apparent contention that the prosecutor’s repeated characterization of the defense’s closing as “pounding and yelling reasonable doubt” amounted to misconduct is not well taken. From the context of the record as a whole, it is apparent that defense counsel actually and literally did “pound” on the podium with a raised voice. The prosecutor began her argument by noting that “just because [defense counsel] is in here and he’s screaming and pounding on the podium doesn’t make what he says . . . true.” Later, she says “[w]hat they tell you to do is stand up and argue reasonable doubt and pound. Start yelling to the jury.” Anon, counsel states “[j]ust because [defense counsel] is standing here screaming and yelling and pounding on the thing, he’s talking about facts that didn’t even come in, or you didn’t hear. . . . It doesn’t mean it’s true . . . .” This pounding and yelling apparently occurred contemporaneously with defense counsel’s argument on the reasonable doubt standard. Thus, the prosecutor’s comments were an appropriate response to both the content of the defense’s summation and the manner of its exposition.
Similarly, defendant’s objection to the prosecutor’s commentary regarding letting the defendant go free due to police errors is unavailing. While the trial court did characterize the prosecutor’s remarks as improper because they were suggestive of punishment, we do not necessarily agree. The comments are nothing more than a characterization of the weakness of one of defendant’s arguments. The prosecutor was not arguing that the jury should not let defendant go free, but was simply criticizing defense counsel’s argument that the jury should find him not guilty due to alleged errors made by the police. Indeed, defense counsel stated, “[police officers] get paid very well. Do a job and do it right. Take the time to do it right. Just take the time. That’s all what I say. Take the time to do it right. [¶] But they were rushing through it. They were just rushing through it, and they didn’t go back to talk to anybody else.” Thus, the prosecutor was not improperly requesting the jury to take the defendant off the streets, but was properly responding to defense counsel’s remarks. (People v. Mendoza (1974) 37 Cal.App.3d 717, 727.)
Finally, to the degree that any of the prosecutor’s comments could be deemed improper, we find defendant suffered no prejudice. Contrary to defendant’s contention, the evidence of defendant’s specific intent to arouse, appeal, or gratify the lust, passion, or the sexual desire of himself or Doe was not weak. Defendant leered at Doe for the duration of the 45 minute to one hour drive from Whittier to Moreno Valley. All the while he played with her hand and fingers, twice kissing her hand. Defendant’s rationale for stopping at his home was simply unbelievable. There was no need for him to drop food off at his home because there was no possible way the food would spoil in the 10 to 20 additional minutes it would take him to get to Doe’s home and back. Rather, the rational inference of the evidence was that defendant was trying to get Doe alone on his own territory. Once at the house, defendant guided her into his bedroom, got her alone, attempted to hold and kiss her, and tried to close the bedroom door. When defendant’s stepson approached, defendant quickly released Doe, demonstrating a consciousness that his behavior was wrongful. Indeed, defendant admitted his conduct was wrong and apologized. Defendant subsequently, intentionally touched Doe’s butt twice. Defendant tried to lure Doe into the garage, in which he had turned on the stereo and told his stepson to leave. Defendant asked her if they were still friends and told her not to tell anyone, again showing a consciousness of guilt. Defendant’s behavior was clearly directed at arousing Doe’s passions so that she could fulfill his own. Doe was simply too clever to fall for defendant’s bait. The injection of the three comments by the prosecutor at the People’s final summation were neither improper nor prejudicial.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Miller, J.