Opinion
B267825
07-17-2017
THE PEOPLE, Plaintiff and Respondent, v. MARC GITELMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA106849) ROTHSCHILD, P.J., concurring and dissenting:
A jury convicted Marc Gitelman of one count of oral copulation with a minor, one count of sexual intercourse with a minor, and one count of committing a lewd or lascivious act on a minor. (Pen. Code, §§ 288a, subd. (b)(1), 261.5, subd. (c), 288, subd. (c)(1).) Gitelman contends that the court made numerous prejudicial evidentiary errors and that the prosecutor committed several acts of misconduct.
Although the majority agrees with Gitelman that the trial court made certain evidentiary errors, my colleagues conclude that the errors do not individually or cumulatively require reversal.
In addition to the errors the majority recognizes, I agree with Gitelman that the court erred in other respects. Based on the cumulative effect of the errors, I conclude that it is reasonably probable that Gitelman would have obtained a more favorable verdict absent the errors. I would therefore reverse the judgment.
BACKGROUND
Gitelman was a Tae Kwon Do instructor. According to Yasmin Doe, one of Gitelman's former students, the oral copulation and sexual intercourse upon which counts 1 and 2 were based took place in Gitelman's car during a weekend when the two attended a tournament in Long Beach. Yasmin was 17 years old at the time.
According to Kendra Doe, another one of Gitelman's students, Kendra played a drinking game in a hotel room with Gitelman, Yasmin, and Krystal Doe. Kendra was 15 years old at that time. (Krystal was about 24 years old.) After Yasmin left the room, Gitelman touched Kendra's breasts, her buttocks, and her vagina while Krystal lay next to her on a bed. Gitelman also touched Krystal in the same way.
The prosecution presented extensive evidence of uncharged sexual acts involving Gitelman and Brianna Doe, another former student of Gitelman's, as well as additional uncharged acts involving Yasmin, Kendra, and Krystal. Krystal did not testify.
Three persons—a trainer at Gitelman's school and two parents of children enrolled at Gitelman's school—testified that Gitelman had admitted to them that he had relationships with Yasmin, Kendra, Brianna, and Krystal.
Gitelman testified at trial and denied that the charged acts took place. The defense presented numerous witnesses, who testified generally that Gitelman behaved professionally with his students and is an honest person.
The majority opinion includes additional facts in its factual summary, which, for the sake of brevity, I will not repeat. Where relevant, I will refer to additional facts below.
DISCUSSION
I concur with the majority's reasoning and the conclusions they reach in parts II, VI, X, and XIII of the majority opinion. For the reasons that follow, I disagree with the conclusions they reach in parts I, III, IV, V, VII, VIII, IX, XI, and XII.
For the reader's convenience, I will use the same headings as the majority opinion.
I. Exclusion of Evidence of Brianna's and Kendra's Romantic Relationships
Brianna, one of Gitelman's former Tae Kwon Do students, testified that she had a two-year sexual relationship with Gitelman that began in 2007 when she was 15 years old. She said that she and Gitelman had a "falling out" after an incident during a tournament that took place on a cruise ship in 2009 (shipboard incident). Brianna explained that Gitelman became upset with her as a result of this shipboard incident involving Brianna, an athlete named Kyle, and others. On cross-examination, defense counsel sought to establish that Kyle was Brianna's boyfriend. The prosecution objected based on the court's pretrial ruling that evidence of sexual conduct by complaining witnesses would be excluded. In response, defense counsel said he would not refer to any sexual activity between Brianna and Kyle; instead, he would seek to show that Gitelman's disapproval of Brianna's boyfriend was a motive for Brianna to make false accusations against Gitelman. The trial court sustained the prosecutor's objection and prevented the defense from introducing evidence that Kyle was Brianna's boyfriend.
The court also prevented Gitelman from introducing evidence that Kendra had dated Gitelman's stepson, and excluded a writing by Kendra stating that the stepson was her "first boyfriend," and that Gitelman "disapproved, which tore his stepson away." Gitelman argued below that the evidence was relevant to show that Kendra believed that Gitelman interfered with her relationship with the boyfriend, and that this belief motivated Kendra to fabricate her accusations against Gitelman.
In excluding evidence of Brianna's and Kendra's boyfriends, the trial court relied on Evidence Code section 782. That statute governs the use of "evidence of sexual conduct of [a] complaining witness . . . offered to attack the credibility of the complaining witness." (Evid. Code, § 782, subd. (a).) The majority correctly observes that " 'Evidence Code section 782 is designed to protect victims of molestation from "embarrassing personal disclosures," ' (People v. Bautista[ (2008)]163 Cal.App.4th at p. 782), not from disclosure of a romantic relationship." (Maj. opn. ante, at p. 8.) Nevertheless, the majority concludes that the court acted within its discretion in excluding any reference to Brianna's and Kendra's boyfriends, as boyfriends, because the probative value of the existence of those romantic relationships was outweighed by the danger that such existence would expose the women's sexual conduct. I disagree.
I note initially that the majority relies on a balancing of probative value and prejudice, invoking an analysis under Evidence Code section 352. (Maj. opn. ante, at p. 8.) The trial court, however, relied solely on its pretrial ruling under Evidence Code section 782; it did not rely on Evidence Code section 352 or exercise the judicial discretion available under that section. (See People v. Mickey (1991) 54 Cal.3d 612, 656 [when relying on Evidence Code section 352, the record must affirmatively show the court relied on that statute].) When a court does not exercise its discretion under Evidence Code section 352, we have no basis for determining that the court acted within such discretion. (See People v. Jackson (1985) 174 Cal.App.3d 260, 266.)
Even if the court had exercised its discretion under Evidence Code section 352 to exclude the evidence of Brianna's and Kendra's boyfriends, I would hold that it abused such discretion. Evidence that (1) Brianna had a boyfriend who was involved in the shipboard incident that caused the falling out between her and Gitelman and (2) Gitelman disapproved of Kendra's boyfriend (Gitelman's stepson) and "tore [him] away" from Kendra has some tendency in reason to support the defense's theory of a motive for fabricating the accusations against Gitelman. The potential risk of undue prejudice for purposes of Evidence Code section 352 was slight. The mere fact that the women had boyfriends and felt that Gitelman either disapproved of or interfered with the relationships would not have, as the majority concludes, created a "danger [of] expos[ing] the women's sexual conduct." (Maj. opn. ante, at p. 8.) There was thus no valid basis for excluding evidence of Brianna's and Kendra's boyfriend relationships. Although the exclusion of such evidence might not, by itself, require reversal of the judgment, as discussed in part XII, post, the cumulative effect of it and the other errors discussed below require reversal.
II. Exclusion of a Defense Reenactment Video
Gitelman contends that the trial court erred by excluding a defense video showing a purported reenactment of what he contends occurred during the time he and Yasmin allegedly engaged in the sexual acts that gave rise to counts 1 and 2. I agree with the majority's analysis and conclusion that the court acted within its discretion in excluding the exhibit.
III. Uncharged Acts Involving Yasmin and Kendra
Gitelman contends that the trial court abused its discretion in allowing Yasmin and Kendra to testify over defense objections about particular uncharged sexual activity involving Gitelman. In particular, Yasmin testified that during a camping trip in Arizona, she, Gitelman, and Krystal engaged in a drinking game that led to "pass[ing] around favors" involving three-way oral and vaginal sex. Kendra testified about two incidents. During one incident, Gitelman took Kendra's clothes off and placed her on an exercise machine, orally copulated her, and then inserted a sex toy—vibrating metal balls—inside her vagina while continuing to orally copulate her. They then had sexual intercourse on the machine. The second incident involved a three-way sexual encounter with Kendra, Krystal, and Gitelman, during which Kendra, at Gitelman's request, performed oral sex on Krystal. The three of them ended up forming a "weird triangle" in which they simultaneously orally copulated each other. The three also engaged in sexual intercourse.
Gitelman does not dispute that the court could have reasonably concluded that the evidence was relevant as common scheme or propensity evidence, but contends that it should have been excluded under Evidence Code section 352. The majority rejects this argument, concluding that evidence of the uncharged acts were no more "unusual and disturbing" than the fact that Gitelman, as "a trusted mentor," had sexual contact with "a decades-younger student, a minor." (Maj. opn. ante, at p. 14.) I disagree.
I note initially that the challenged evidence was introduced through Yasmin and Kendra, the alleged victims in the charged counts, and was uncorroborated. Our Supreme Court has cautioned that "uncorroborated testimony by the complaining witness concerning the defendant's uncharged misconduct may have less probative value than testimony that is corroborated or testimony provided by a third party, and the probative value of this evidence must be considered by the trial court in conducting the weighing process mandated by Evidence Code section 352." (People v. Ewoldt (1994) 7 Cal.4th 380, 407-408; compare People v. Edwards (2013) 57 Cal.4th 658, 713 [probative value of evidence of uncharged acts was "strong" because its source was unconnected to the victim of the charged crime].) In the instant case, the testimony of the uncharged acts deserves less weight because it is neither corroborated nor presented by independent witnesses. On the other hand, it is extremely prejudicial. The uncharged acts, involving vibrating sex toys and multiparty sex acts, reflect a degree of promiscuity and sexual adventurism that sets them far apart from the comparatively more conventional charged acts. Counts 1 and 2 are based upon acts of oral and vaginal sex between Gitelman and Yasmin in a parked vehicle. Count 3 is based on Gitelman's acts of touch and fondling Kendra, without engaging in sexual intercourse or oral sex. Although a second woman was present during the charged incident involving Kendra, there was no evidence that the two women engaged in any acts upon each other or upon Gitelman. The uncharged acts, by contrast, involved acts between women, "weird" simultaneous three-way sexual conduct among the women and Gitelman, and the insertion of vibrating metallic balls into Kendra's vagina while Gitelman orally copulated her.
Compared to the charged acts, it is highly likely that jurors perceived the evidence of the uncharged acts as more lewd and licentious. As such, the evidence was highly inflammatory and likely to evoke an emotional bias against Gitelman. Moreover, because of the absence of evidence that Gitelman had been convicted of any crime arising from the uncharged acts, there was a significant danger that jurors would be tempted to convict him of the charged acts to ensure that he was punished for something. (See People v. Falsetta (1999) 21 Cal.4th 903, 917.) I therefore conclude that the limited probative value of the uncharged acts was substantially outweighed by the risk of undue prejudice to Gitelman, and that the court abused its discretion in admitting the evidence.
IV. Admission of a Witness's Opinion of the Truth of the Students' Accusations
Gitelman's former wife, Barbara Snyder, testified for the prosecution. Synder stated that she learned of Yasmin's accusations against Gitelman on Facebook and "believed the girls the moment [she] saw Yasmin's statement—" Defense counsel objected on grounds of relevance and moved to strike the statement. The court overruled the objection.
The majority correctly holds that a witness cannot express an opinion concerning the guilt, innocence, or truthfulness of a defendant. (Maj. opn. ante, at p. 15.) Moreover, a lay witness's opinion about the veracity of a particular statement by another witness is also irrelevant because "such an opinion has no 'tendency in reason' to disprove the veracity of the statements." (People v. Melton (1988) 44 Cal.3d 713, 744.)
The majority holds that Gitelman forfeited the argument that Snyder's comment constituted an inadmissible lay opinion by failing to object on the ground below. But Gitelman objected on grounds of relevance below and reasserts that ground on appeal. Even if he forfeited the argument that Snyder's comment was an inadmissible lay opinion, he has preserved the meritorious relevance argument. I therefore disagree with the majority's conclusions on this point.
V. Hypothetical Situations Posed to Defense Character Witnesses
Several defense witnesses testified that, in their opinion, Gitelman was an honest and truthful person. On cross-examination, the prosecutor asked six of these witnesses whether their opinions of Gitelman would change if the then-pending allegations were found true or if "he were to be convicted and found guilty of these charges." Some witnesses responded that their opinion would not change, some said it would change, and others refused to answer the question due to its hypothetical nature. Gitelman contends that the prosecutor's questions were improper. I agree.
"[T]he opinion of a good-character witness must have some basis, and the prosecution must be permitted to cross-examine to test that basis and bring into question the validity of the opinion." (People v. Hurd (1970) 5 Cal.App.3d 865, 880.) The prosecutor may, therefore, ask the witness whether he or she has heard of conduct by the defendant that is inconsistent with the witness's opinion of the defendant's character. (People v. Payton (1992) 3 Cal.4th 1050, 1066.) This practice, however, may " 'open[] a veritable Pandora's box of irresponsible gossip, innuendo and smear.' " (People v. Eli (1967) 66 Cal.2d 63, 78-79, quoting Michelson v. United States (1948) 335 U.S. 469, 480.) To avoid such abuse, prosecutors "must act in good faith and with the belief that the acts or conduct specified actually took place." (People v. Wagner (1975) 13 Cal.3d 612, 619; accord, People v. Payton, supra, 3 Cal.4th at p. 1066.) Trial courts also bear a "heavy responsibility . . . to protect the practice from any misuse" (Michelson v. United States, supra, 335 U.S. at p. 480) and prevent prosecutors from cross-examining character witnesses "based upon mere fantasy" (People v. Eli, supra, 66 Cal.2d at p. 79).
The trial court's responsibility is fulfilled by limiting the prosecutor to "asking whether the holder of the opinion has knowledge of events or acts which have indisputably occurred." (People v. Hempstead (1983) 148 Cal.App.3d 949, 954 (Hempstead) (italics added); see also People v. Clair (1992) 2 Cal.4th 629, 682-685 [discussing Hempstead].) When the event is disputed, the court can ascertain whether it "actually occurred" outside the presence of the jury. (Hempstead, supra, 148 Cal.App.3d at p. 953; see, e.g., Michelson v. United States, supra, 335 U.S. at p. 481 [trial court "took pains to ascertain, out of the presence of the jury, that the target of the question was an actual event"].)
Here, the prosecutor asked several character witnesses whether their opinions of Gitelman's honesty and truthfulness would change if the allegations in the pending trial were found true or if Gitelman was found guilty of the charges. These hypothetical events necessarily could not have "actually occurred" at the time the prosecutor posed the questions: The jury had not found any allegations true and Gitelman had not been convicted of the charges. By asking such questions, the prosecutor failed to act with a good faith belief that the acts actually took place, and the trial court failed to fulfill its heavy responsibility to prevent the prosecutor's misuse of cross-examining the defense character witnesses.
Although these conclusions follow directly from the Hempstead rule discussed above, the majority is correct that California courts have not addressed the precise question whether a prosecutor may properly ask a defense character witness if his or her opinion would change if the witness assumed the defendant's guilt in the pending case. Federal courts that have faced the issue overwhelmingly hold that guilt-assuming hypothetical questions to defense character witnesses are improper. (See, e.g., U.S. v. Woods (4th Cir. 2013) 710 F.3d 195, 207 [questions to defense character witnesses that assume a defendant's guilt of the crime for which he was charged are improper]; U.S. v. Shwayder (9th Cir. 2002) 312 F.3d 1109, 1121 ["the use of guilt assuming hypotheticals undermines the presumption of innocence and thus violates a defendant's right to due process"]; U.S. v. Guzman (11th Cir. 1999) 167 F.3d 1350, 1352 [the prosecution may not pose hypothetical questions that assume the guilt of the accused]); U.S. v. Oshatz (2d Cir. 1990) 912 F.2d 534, 539 [hypothetical questions based on an assumption of guilt should not be asked]; U.S. v. McGuire (6th Cir. 1984) 744 F.2d 1197, 1204 [it is error to allow the prosecution to ask the character witness to assume defendant's guilt of the offenses for which he is then on trial].) Courts in other states have also consistently rejected the posing of guilt-assuming hypothetical questions to defense character witnesses. (See Annot., Cross-Examination of Character Witness (1982) 13 A.L.R.4th 796, § 5[a] and cases cited (Westlaw supp. as of July 10, 2017).)
Two federal courts have held that guilt-assuming hypotheticals are improper when asked to a character witness who testifies on behalf of defendant's reputation in the community, but are allowed when the witness testifies regarding his or her opinion of the defendant's character. (U.S. v. White (D.C. Cir. 1989) 887 F.2d 267, 274-275; U.S. v. Kellogg (3d Cir. 2007) 510 F.3d 188, 195-197.)
In the case the majority relies on—People v. Qui Mei Lee (1975) 48 Cal.App.3d 516 (Qui Mei Lee)—the court held that when, as in that case, the character witness gives his or her opinion as to the defendant's reputation for honesty as of the time of the witness's testimony, the prosecutor could properly ask whether the witness had "heard that the defendant committed the act or acts for which he is on trial." (Id. at p. 526.) The court explained that "[n]o one can seriously maintain that a character witness comes into a criminal trial unaware that the defendant is charged with a crime." (Id. at p. 527.) A question concerning the witness's awareness of the charge, the court explained, is thus "highly relevant, and therefore proper." (Ibid.)
Although Qui Mei Lee concludes that such evidence is "highly relevant," it seems to me that it undercuts the presumption of innocence in the same way that a guilt-assuming hypothetical question does and is therefore improper. Even, however, assuming that Qui Mei Lee was correctly decided, it does not support the majority's conclusion. The fact that the character witness has "heard" of the charges against the defendant is a fact that has "indisputably occurred." (See People v. Clair, supra, 2 Cal.4th at pp. 684-685 [discussing Hempstead and citing Qui Mei Lee].) Here, however, Gitelman's character witnesses were not asked merely whether they had heard of the charges against him, but asked them to assume that he has been found guilty of them. A fact that had indisputably not occurred. Because Qui Mei Lee does not address the propriety of a guilt-assuming hypothetical (as was asked repeatedly in the instant case), it is therefore inapposite.
Accordingly, based on Hempstead and the persuasive decisions from other jurisdictions, I disagree with the majority's conclusions on this issue.
VI. Lay Opinion Concerning the Victims' Appearance
I agree with the majority's conclusion in part VI of the opinion (maj. opn. ante, at pp. 16-17) that the court erred in preventing defense witness Karen Jacquez from stating whether she had ever observed anyone who appeared to be suffering from a hangover.
VII. Gitelman's Opinion as to Why the Victims Would Accuse Him
Defense counsel asked Gitelman: "Do you have any idea as to why, if it wasn't true, these young ladies would be making such seemingly specific and firmly believed allegations?" The court sustained the prosecutor's objection that the question called for speculation. The Attorney General concedes that the ruling was error, and I agree. A defendant may be able to "provide relevant, nonspeculative testimony as to the accuracy of [prosecution witnesses'] information and any motive for dishonesty. If he provided a reason for one of them to have testified inaccurately, the jury could consider that reason for whatever value it believed it had." (People v. Chatman (2006) 38 Cal.4th 344, 383.) The majority agrees. The trial court erred.
The majority does not expressly acknowledge the error, but states that "[t]he error was nonprejudicial." (Maj. opn. ante, at p. 17.)
VIII. Argumentation
During the prosecutor's cross-examination of Gitelman, the following colloquy took place:
"[The prosecutor:] . . . Are you saying they're all lying? Everyone who testified for the People are lying?
"[¶] . . . [¶]
"[The defendant:] I believe they were manipulated into the situation and it blossomed from that point.
"[The prosecutor:] So are you saying they were manipulated into lying?
"[The defendant:] Yes, ma'am.
"[The prosecutor:] What did you do to allow seven people to lie about you?"
Defense counsel objected on the grounds that the question was argumentative. Before the court ruled, Gitelman said: "I can break each one down for you, if you would like. I'd be happy to do so." Defense counsel then moved to strike the answer, which the court denied. The prosecutor had no further questions.
"An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony." (People v. Chatman, supra, 38 Cal.4th 344, 384.) Such questions are improper and objections to them should be sustained. (People v. Virgil (2011) 51 Cal.4th 1210, 1252; People v. White (1954) 43 Cal.2d 740, 747; 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2016) Method and Scope of Examination of Witnesses, § 28.43, pp. 28-28—28-29.)
Here, the prosecutor's question suggests that Gitelman did something to "allow" others to lie about him, and implies that even if the prosecution witnesses had lied, Gitelman must have done something awful to cause them to be willing to lie. The fact that the prosecutor had no follow-up question further indicates that her purpose was to make a speech to the jury, not to elicit relevant testimony. The court, therefore, should have sustained the defense objection.
The majority agrees that the question was argumentative, but concludes that Gitelman's argument is without merit because defense counsel failed to object to the prosecution's argumentative question before it had been posed. (Maj. opn. ante, at pp. 18-19.) Attorneys are not clairvoyant, however, and cannot be expected to foresee a prosecutor's argumentative question; indeed, an objection asserted before the question is asked would be premature. If an argumentative question cannot be stopped before it is asked and, according to the majority, an objection made after the question would be too late, the rule prohibiting argumentative questions would be effectively meaningless.
Even if an argumentative question is like the proverbial bell that cannot be unrung, the court can and must point out its impropriety by sustaining a proper objection and, where appropriate, admonish the jury to disregard the question. This, at a minimum, will bring the prosecutor's misconduct to the jury's attention and mitigate the prejudicial effect of the question. The court erred by failing to do so.
IX. Evidence Concerning Kendra's Ability
Kendra testified that Gitelman had served her alcohol in his hotel room, and because of that, she performed poorly in her tournament competition the next day. She may have won her first match, she said, but "ended up losing the rest of the matches." To impeach this testimony, Gitelman introduced evidence that she had won a silver medal at the tournament and that her loss in the finals was to "a very high level athlete." The court sustained the prosecutor's objection to Gitelman's testimony on relevance grounds. The majority concludes there was no error because "testimony that Kendra lost to a worthy opponent had no tendency in reason to establish her relative athletic ability." (Maj. opn. ante, at p. 19.) I disagree.
If Kendra had lost the finals to a person of middling or little athletic ability, it would have supported Kendra's view that she performed poorly and added credence to her testimony that she had been drinking with Gitelman the night before. The statement that she was beaten only by a high level athlete excludes the possibility that she had lost to a lower level athlete, and implies that she only lost because of the high quality of her competition. Because the evidence tended to impeach Kendra's testimony regarding her tournament performance, it tended to weaken the credibility of her testimony generally. It was therefore relevant and should have been admitted.
X. Hearsay Text Message
Defense witness Melissa Walter testified that her children have attended Gitelman's Tae Kwon Do school for many years, and she decided to keep her children at his school after Yasmin publicized her prior relationship with Gitelman. On cross-examination, Walter denied that she had ever decided to pull her children from Gitelman's school or that she considered other Tae Kwon Do programs. She also denied that she had told her husband that Gitelman had lied to her on multiple occasions. The prosecution then introduced over the defense's hearsay objection certain text messages that indicated that she had considered pulling her children from Gitelman's school and that Gitelman had lied.
The majority correctly concludes that the text messages were inadmissible hearsay and that the court erred by allowing it into evidence. I agree.
XI. Prosecutorial Misconduct
Gitelman asserts that the prosecutor committed misconduct during closing argument by allegedly (1) mischaracterizing evidence; (2) urging the jurors to imagine themselves in the victims' situation and implying a commonality between the prosecutor's and the jurors' views; (3) impermissibly vouching for Snyder's veracity by referring to evidence outside the record; and (4) denigrating defense counsel and misstating the law.
As Gitelman concedes, his counsel made no objection to most of the challenged conduct. For that reason, the majority concludes that he has forfeited his misconduct arguments. (Maj. opn. ante, at pp. 21-22.) I disagree.
Early in the prosecutor's closing argument, defense counsel thrice objected to statements by the prosecutor, and each time was overruled with the court commenting that: (1) "This is argument, ladies and gentlemen"; (2) "It's within the ambit of the evidence"; and (3) "This is argument." By the time the third objection was overruled, it was undoubtedly apparent to counsel that further objections would be futile and create a risk that defense counsel was being obstreperous. Each of the instances of misconduct about which Gitelman complains on appeal occurred after these trio of overruled objections. Under these circumstances, I would hold that counsel did not forfeit his misconduct arguments.
The majority does address, and ultimately rejects, the merits of Gitelman's misconduct arguments in the context of Gitelman's alternative claim that his counsel was ineffective for failing to object. In doing so, the majority fairly summarizes the applicable law, including the rules that a prosecutor must not vouch for the credibility of a witness (People v. Boyette (2002) 29 Cal.4th 381, 433), or appeal to the jury's sympathy, passion, or prejudice (People v. Fields (1983) 35 Cal.3d 329, 362).
I agree with the majority's views as to the merits of all but one of Gitelman's prosecutorial misconduct claims. The meritorious argument is that the prosecutor improperly appealed to the sympathy and passions of the jurors by asking them to view the case from the victims' points of view. In particular, the prosecutor argued: "Imagine that these 15- and 16-year old girls, they know who he is. They know that he is this masterful teacher, this coach. . . . [¶] And then imagine that these girls who trust this man, who have developed a relationship, some . . . who grew up with him, starts to do these things to them. And that every single one of them used the same word: I was confused. Which makes sense. You would be confused if this person, who meant all these things to you, starts touching you like that. And you haven't asked for it, you're not interested in it, it just starts to happen. [¶] And now imagine with all of that, that you have to say no, you have to tell him to stop. You're 15 and he's 45, and you have to tell him no, no, you can't do that. [¶] . . . [¶] You have to say no to that. You have to say no to someone who knows better. You have to say no to that person that you trust, that you think has your best interests in mind. That person that cares about you. And you have to tell him no, that it's wrong, when you're confused because now you're not even sure it is wrong, because this person you trust is doing this to you."
In general, the prosecution may not invite the jurors to put themselves in the victims' position and imagine what the victims experienced or to view the case through their eyes. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318; People v. Leonard (2007) 40 Cal.4th 1370, 1406.) "This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim." (People v. Vance (2010) 188 Cal.App.4th 1182, 1188.)
The Attorney General contends that there was no misconduct because " 'a [p]rosecutor may ask the jurors to put themselves in the shoes of the victim.' " This exception to the general rule, however, applies only during the penalty phase of capital cases. (People v. Vance, supra, 188 Cal.App.4th at p. 1199.) It does not apply in this case.
The prosecutor repeatedly asked the jurors to "imagine" what the victims were experiencing and urged them to consider how "you"—the individual jurors—would feel and behave if they were in the victims' situations. Although I do not believe that these improper comments infected the trial with such unfairness as to deprive Gitelman of his right to due process, they do constitute a "reprehensible method[]" of attempting to persuade the jury. As such, the prosecutor violated our state standards for prosecutorial misconduct. (See People v. Hill (1998) 17 Cal.4th 800, 819.)
XII. Cumulative Error
The majority holds that the court committed "three minor errors": (1) precluding Jacquez from testifying whether she had ever observed someone suffering the effects of a hangover; (2) precluding Gitelman from offering an opinion as to why Yasmin and Kendra would lie about the events in his hotel room in 2010; and (3) admitting Walter's husband's hearsay text message. The majority further holds that these errors, individually or collectively, were harmless under the Watson test for prejudice. (Maj. opn. ante, at p. 24.)
People v. Watson (1956) 46 Cal.2d 818, 836.
As explained above, the court committed six errors in addition to those recognized by the majority: (1) The court precluded evidence of the romantic relationship between Brianna and Kyle and between Kendra and Gitelman's stepson, and evidence suggesting that Gitelman interfered with those relationships; (2) The court allowed the prosecution to introduce extensive evidence of highly inflammatory uncharged sexual activity; (3) The court failed to strike Snyder's opinion of the truth of Yasmin's accusations; (4) The court allowed the prosecution to challenge the opinions of Gitelman's character witnesses by asking guilt-assuming hypothetical questions; (5) The court allowed the prosecutor's argumentative question, "What did you do to allow seven people to lie about you?"; and (6) The court precluded Gitelman from testifying as to the athletic level of Kendra's tournament finals opponent. In addition, the prosecutor committed misconduct by asking the jurors to imagine themselves in the victims' situations and view the case from the victims' point of view.
Regardless of whether any of these errors were prejudicial in isolation, the cumulative effect of the errors requires reversal. (See, e.g., People v. Hill, supra, 17 Cal.4th at p. 844, People v. Holt (1984) 37 Cal.3d 436, 459.) This case depended largely upon the credibility of the witnesses. Yasmin was the only witness to the alleged crimes committed against her, and Kendra was the only witness who testified to the crime against her. Their veracity and, conversely, their motive to lie were critical to the determination of guilt. The trial court, however, prevented Gitelman from answering his counsel's question to explain why the complaining witnesses would lie. Moreover, Gitelman was precluded from introducing evidence suggesting a motive for Kendra to lie: Kendra's "first boyfriend" was Gitelman's stepson, and Kendra believed that Gitelman "tore" them apart. The absence of motive-to-lie evidence allowed the prosecutor to tell the jurors: "You know what the big problem the defense never answered for you? What is their motive? Why are these girls lying? They can't tell you. Because there is no motive. Because they're telling you the truth." If not for the trial court's erroneous rulings, this compelling point could not have been made. The inability of Gitelman to present evidence to establish a motive for the witnesses to lie was compounded by the trial court's erroneous ruling allowing Snyder's improper opinion that Yasmin was telling the truth when she made her accusations.
Gitelman's veracity and the testimony of witnesses who vouched for his character were also critical to his defense. The trial court, however, allowed the prosecution to ask the defense witnesses whether their favorable opinion of Gitelman as an honest man would change if, "hypothetically," Gitelman was found guilty of the pending charges. Such guilt-assuming questions are prejudicial because they "allowed the prosecution to foist its theory of the case repeatedly on the jury and to force an unsuspecting witness to speculate on the effect of a possible conviction." (U.S. v. Williams (7th Cir. 1984) 738 F.2d 172, 177.) Indeed, such questions strike "at the very heart of the presumption of innocence" and "have no place in a criminal trial." (U.S. v. Candelaria-Gonzalez (5th Cir. 1977) 547 F.2d 291, 294.)
The court's error in allowing the extensive and detailed evidence of uncharged acts, much of which, as explained above, should have been excluded or limited, was extremely prejudicial. Without diminishing the seriousness of the charged acts, the evidence of the uncharged acts, which might well have shocked members of the jury who abide by more traditional sexual mores, created a serious danger that the jurors would seek to punish Gitelman for such conduct even if they harbored reasonable doubts about the charged crimes. This danger is particularly great because Gitelman had not been convicted of any of his more unconventional behavior.
State law trial errors require reversal when "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.) This standard is met "when there exists 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.' " (People v. Mower (2002) 28 Cal.4th 457, 484.) In light of the numerous and significant errors in this case, I have such doubt, and would therefore reverse the judgment.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed as modified. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Marc Gitelman appeals from his conviction for three sex crimes, contending the trial court made numerous prejudicial evidentiary errors and the prosecutor committed misconduct. We disagree, and therefore affirm the judgment with a slight modification.
BACKGROUND
Gitelman, age 44, was a tae kwon do instructor in Nevada whose students included teenage girls. In an information filed in Los Angeles, he was charged with one count each of unlawful sexual intercourse and oral copulation with Yasmin Doe, a person under 18 years old (Pen. Code, §§ 261.5, subd. (c), 288a, subd. (b)(1)), and one count of commission of a lewd or lascivious act involving Kendra Doe, a child (§ 288, subd. (c)(1)). Trial was by jury.
Undesignated statutory references will be to the Penal Code. --------
Three complaining witnesses, including the two victims, testified. Brianna Doe testified she had sexual encounters with Gitelman for two years beginning in 2007 when she was 15 years old. While attending a tae kwon do tournament in Fresno, he kissed and orally copulated her in his hotel room. When she was 16 years old, they had sexual encounters at tournaments across the country, including California, and in an equipment room in Nevada. The last encounter occurred in 2009, when Brianna was 17, at a tae kwon do tournament that Gitelman's school hosted onboard a cruise ship. Brianna and Gitelman then had a serious falling out over her failure to help with administrative tasks at the tournament, and she later left his training program because of the sexual abuse.
Yasmin Doe, another of Gitelman's former students, testified that in May of 2010, when she was 16 years old, she traveled with him, Kendra Doe, and a third female student to an invitational tournament in Long Beach. On their first night there, Gitelman invited the three students to his hotel room, where they drank alcohol. Gitelman kissed Yasmin's thighs and fondled her buttocks under her shorts. They had frequent sexual encounters over the ensuing months while attending tournaments around the country. In November 2010, Gitelman, Yasmin, and Krystal Doe, age 24, engaged in three-way oral and vaginal sex at a campsite in Arizona. During a break in a seminar in Long Beach in May 2011, Gitelman and Yasmin went to the hotel parking lot, where he smoked a cigarette. They then went to Gitelman's truck in the back row of the lot, where Yasmin orally copulated and had sexual intercourse with him. (These are the charged offenses as to Yasmin.) Yasmin testified she and Gitelman had sexual encounters three or four times a week in his studio, his car, and his house, the last occurring around June of 2013, when she was 19.
Kendra Doe testified that in 2010, when she was 15, she traveled with Gitelman from Las Vegas to the City of Industry for a tae kwon do festival. While in a hotel room in California, Gitelman touched her breasts and vagina and rubbed her clitoris with his fingers (this is the charged offense as to Kendra), and also fondled Krystal Doe, who was lying on the bed beside Kendra. At Gitelman's studio back in Nevada, he strapped Kendra into an exercise machine designed for working the inner thighs, then performed oral sex on her, inserted sex toys into her vagina, and had sexual intercourse with her. A month or two later, Kendra, Gitelman and Krystal performed oral sex on one another in what Kendra described as a "weird triangle," which evolved into intercourse. Early the following year, Kendra left Gitelman's studio.
Gitelman denied all the allegations. He testified that on the cruise ship in 2009, Brianna and Kendra were instructors as well as students, and were required to assist with the tournament. Two other students, Kyle and Spencer (Gitelman's stepson) were also required to help. Instead, the four accessed drinks left half-finished by other passengers, and hid from the adults. Gitelman became upset with and disciplined them, which caused "a massive amount of defiance." Brianna left his program shortly thereafter. She approached Gitelman in 2013, upset over a recent breakup with her then boyfriend, and inquired whether he was dating anyone. He informed her he was dating Yasmin, who was by then 19.
A jury convicted Gitelman of all three charges, and he was sentenced to serve four years and four months in prison. He timely appealed.
DISCUSSION
I. Exclusion of Evidence of Brianna's and Kendra's Romantic Relationships
In a prosecution for unlawful sexual intercourse, evidence of a complaining witness's "sexual conduct" is inadmissible to prove consent but may be admitted to challenge the witness's credibility if the defendant first files a written motion accompanied by an affidavit explaining the need for the evidence, and the court finds the evidence is both relevant and not unduly prejudicial. (Evid. Code, §§ 782, subd. (a), 1103, subd. (c)(1 & 5).) Here, the prosecution moved before trial to exclude evidence of any victims' or witnesses' sexual conduct until such time as Gitelman made an offer of proof concerning the relevance of the evidence. During oral argument on the motion, it was revealed that on the cruise ship in 2009, Brianna, Kendra, Spencer and Kyle were discovered in a cabin, undressed and under the influence of alcohol and drugs. The trial court granted the prosecution's motion to exclude reference to any sexual conduct by Brianna or Kendra. Gitelman does not contest that ruling.
However, Gitelman contends the trial court erred when it extended its ruling to evidence that Kendra was dating Spencer, Gitelman's stepson, and that Brianna was dating Kyle. We disagree.
At trial, Brianna Doe testified on direct examination that by 2013, her boyfriend blamed her for the abuse she suffered at Gitelman's hands. She confronted Gitelman in March of 2013, but was upset to learn he was by then openly dating Yasmin, who was 19 years old. During cross-examination, Gitelman's counsel attempted to elicit testimony from Brianna that part of the shipboard argument between Gitelman and herself—and part of the reason for her current accusations against him—was that she felt Gitelman disapproved of her "partying" with her boyfriend aboard the cruise ship "and not doing what they normally would do, which is showing up on time, helping set up for the tournament." The trial court sustained the prosecution's objection on the ground that evidence that Brianna was with her boyfriend aboard the ship was irrelevant and violated the court's pretrial exclusion of evidence of any witness's sexual conduct.
At sidebar, the trial court expressed concern that any discussion of the women's boyfriends would reveal that Brianna and Kendra were sexually active. Gitelman's counsel represented that he wished to establish only that Brianna was fabricating her accusations because she resented Gitelman's disapproval of her spending time with her boyfriend on the cruise rather than helping with the tournament; he did not intend to reveal the sexual nature of the relationship. The trial court rejected the argument, stating, "I don't care if she's sleeping with Santa Claus[]. We're not going down that road. [¶] You can ask her if she violated the team rules with the alcohol and not following the training regulations. But we're not going anywhere into these other areas."
In accordance with its ruling prohibiting reference to Brianna's boyfriend, the court later ordered stricken both Gitelman's testimony that Brianna "decided to go with her boyfriend to [another] school and take a different path," and another witness's testimony that Brianna left Gitelman's school "because of her boyfriend at the time."
The court made a similar ruling regarding Kendra. Gitelman offered evidence that Kendra was dating his stepson and had written the following in a timeline of events: "My first boyfriend was [Gitelman's] stepson, who I met, he disapproved, which tore his stepson away." Gitelman's counsel explained he wanted to establish that Gitelman's interference with the relationship was relevant to Kendra's credibility. The trial court stated Gitelman could mention that Kendra and his stepson were friends, but not that they were dating. The court further ordered that the reference to her boyfriend in the timeline be stricken.
During closing statements, the prosecution argued, "You know what the big problem the defense never answered for you? What is their motive? Why are these girls lying? They can't tell you. Because there is no motive. Because they're telling you the truth."
"A defendant generally cannot question a sexual assault victim about his or her prior sexual activity." (People v. Bautista (2008) 163 Cal.App.4th 762, 781; accord, People v. Fontana (2010) 49 Cal.4th 351, 362.) For example, a defendant cannot introduce evidence of specific instances of the victim's previous sexual conduct with persons other than the defendant to prove the victim consented to the sexual acts alleged. (Evid. Code, § 1103, subd. (c)(1).) But evidence of past sexual conduct may be admissible to impeach the victim's credibility. (Evid. Code, § 1103, subd. (c)(5); People v. Chandler (1997) 56 Cal.App.4th 703, 708.) The term "sexual conduct" for these purposes "encompasses any behavior that reflects the actor's or speaker's willingness to engage in sexual activity. The term should not be narrowly construed." (People v. Franklin (1994) 25 Cal.App.4th 328, 334.)
Evidence Code section 782 provides that a defendant seeking to adduce a victim's sexual conduct to impeach credibility must file a written motion accompanied by an offer of proof in the form of an affidavit explaining the relevancy of the evidence. If the court finds the offer to be sufficient, it shall permit the defense to question the complainant out of the presence of the jury. If the court finds the proposed evidence is relevant and not unduly prejudicial, it shall permit the evidence to be introduced. (Evid. Code, § 782, subd. (a); People v. Chandler, supra, 56 Cal.App.4th at p. 708; People v. Daggett (1990) 225 Cal.App.3d 751, 757.)
"'A trial court's ruling on the admissibility of prior sexual conduct will be overturned on appeal only if appellant can show an abuse of discretion.'" (People v. Bautista, supra, 163 Cal.App.4th at p. 782.)
Here, Gitelman's defense counsel studiously avoided making any reference to Brianna's and Kendra's past sexual conduct, and repeatedly acknowledged such evidence could not be introduced until such time as he complied with the procedure set forth in Evidence Code section 782. He argues evidence that Brianna and Kendra were in romantic relationships did not necessarily reflect on their willingness to engage in sexual activity.
We agree, to a point. "Evidence Code section 782 is designed to protect victims of molestation from 'embarrassing personal disclosures,'" (People v. Bautista, supra, 163 Cal.App.4th at p. 782), not from disclosure of a romantic relationship. But the trial court was nevertheless within its discretion to exclude evidence disclosing the romantic nature of Brianna's and Kendra's relationships because its probative value was outweighed by the danger it would expose the women's sexual conduct.
Gitelman theorized that Brianna left his school not because of his abuse, as she claimed, but because her boyfriend induced her to do so. Therefore, he argues, the existence and identity of the boyfriend were necessary to impugn her credibility. We disagree. Gitelman was free to elicit that Brianna's friend induced her to leave his studio. But the additional fact that the friend was a boyfriend would have been gratuitous, adding nothing. On the other hand, if the boyfriend was identified as Kyle, who was known to have misbehaved on the cruise ship along with Brianna while under the influence of alcohol, the jury could easily have inferred the behavior involved sexual conduct.
Similarly, Gitelman theorized that Kendra fabricated accusations against him because she felt he interfered with her relationship with Spencer. But he was free to inquire into those matters. The court excluded only evidence that the relationship was that of a boyfriend and girlfriend, which was irrelevant and could have led to the inference that the pair's misbehavior aboard the cruise ship in 2009 involved sexual conduct.
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.) Here, we cannot conclude the court's decision to exclude evidence concerning Brianna's and Kendra's boyfriends was irrational or arbitrary.
Even if the trial court erred in precluding disclosure of the nature of Brianna's and Kendra's relationships, any error was harmless because no reasonable probability exists that the verdict would have been different.
A judgment may be reversed due to an erroneous exclusion of evidence only if it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (Evid. Code, § 354; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Guiton (1993) 4 Cal.4th 1116, 1130.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Here, nothing prohibited Gitelman from exploring the intensity of Brianna's and Kendra's friendships or showing the extent to which Kyle influenced Brianna or to which Kendra resented Gitelman for disrupting her relationship with Spencer. Gitelman argues that the emotions of someone in a romantic relationship are more intense than in a platonic one, and can give rise to greater feelings of resentment toward anyone who disrupts them and therefore to a greater motive to retaliate by making false accusations. We appreciate the nuance, but if the jury rejected Gitelman's theory that Brianna and Kendra resented his interference with their friendships, it would reject the theory even had it known the friendships were romantic.
II. Exclusion of a Defense Reenactment Video
The charged offenses pertaining to Yasmin occurred during a break in a tae kwan do seminar in Long Beach, during which Yasmin testified she and Gitelman went to the parking lot, smoked a cigarette, then engaged in oral and vaginal sex in Gitelman's truck. Gitelman denied the accusation and offered a video depicting a 10-minute reenactment in which he exited the Long Beach Marriott Hotel to the side entrance to smoke, then went to his truck in the parking lot, and then, as his counsel explained, stayed "in the pick-up truck for a couple of minutes moving things around" before walking back to the seminar. Trial counsel said the video would serve as a backdrop to Gitelman's testimony concerning the occurrence—"I would be asking questions of Mr. Gitelman as the video is playing and as he recounts his recollection of what occurred that Friday afternoon at this venue"—but did not explain what probative value it would have.
The trial court sustained the prosecution's objection to the video on the ground that it had little probative value and would likely generate confusion, as no evidence established (1) that breaks in the forms seminar in Long Beach were 10 minutes long, (2) that Gitelman and Yasmin could not have taken a longer break, (3) that the layout inside the hotel on the day of the tournament was similar to that depicted in the video, or (4) that Gitelman's truck was parked in the same place, a factoid he admitted he could not remember. The court stated Gitelman could describe the events orally and use still pictures to depict the scene.
On appeal, Gitelman argues the trial court erred in excluding the video because it would have demonstrated that the events Yasmin recounted could not have occurred within the confines of a 10-minute break from the forms seminar. We disagree.
Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) Nevertheless, relevant evidence should be excluded if the trial court, in its discretion, determines that its probative value is substantially outweighed by the probability that its admission will create a substantial danger of undue prejudice. (Evid. Code, § 352.) In this context, unduly prejudicial evidence is evidence that would cause the jury to "prejudge" a person on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.) We review the trial court's decision on whether evidence is relevant and not unduly prejudicial for abuse of discretion. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.) "Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must 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.)
Here, the video of Gitelman reenacting a 10-minute break in a seminar in Long Beach would have had little if any probative value. Nothing in the record supports his assumption on appeal that the offenses could not have occurred within 10 minutes (an assumption he did not express when introducing the video at trial). And although Gitelman observes on appeal that breaks in the tournament were 10 minutes long, the actual evidence was that participants were given "like" 10 minutes, and there was no evidence that Gitelman and Yasmin (or anyone) complied with the limit.
But the possibility for confusion was clear. As defense counsel described it, the video showed Gitelman "in the pick-up truck for a couple of minutes moving things around." That couple of minutes in the truck, along with appellate counsel's intimation that the offenses of oral copulation and underage sex could not have been committed in the time depicted, leads to the suggestion that the offenses could not have been committed in the span of a couple of minutes, a proposition unsupported in either reason or fact, and one that neither Gitelman's defense nor appellate counsel has seriously espoused. Such a suggestion could only have confused the jury.
Given that Gitelman was permitted to relate the events at issue by way of his testimony, accompanied if he wished by still photographs, we conclude it was well within the trial court's discretion to exclude the video.
III. Uncharged Acts Involving Yasmin and Kendra
Yasmin testified that in November 2010, she, Gitelman, and Krystal Doe, age 24, engaged in three-way oral and vaginal sex in a campsite in Arizona. Kendra testified that she, Gitelman and Krystal performed oral sex and intercourse on one another. Kendra also testified that at Gitelman's studio in Nevada, he took off her clothes, strapped her into an exercise machine and inserted sex toys into her vagina.
Gitelman contends the trial court erred in declining to exclude inflammatory testimony about multiparty sex and sex toys because its probative value was substantially outweighed by its unduly prejudicial effect. We disagree.
In a criminal action where the defendant is accused of a sexual offense, the jury is permitted to consider evidence of the defendant's propensity to commit sexual offenses, so long as the evidence is not made inadmissible by Evidence Code section 352. (Evid. Code, § 1108, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1164.)
Here, Yasmin's and Kendra's testimony about multiparty sexual encounters with Gitelman and Krystal Doe was relevant to their credibility. When two witnesses describe separate but similar events, it is unlikely the details will match if the descriptions are fabricated. That the details of Yasmin's and Kendra's stories were similar suggests the witnesses were truthful. The testimony was also relevant to show that the charged offenses actually occurred. Because it is unusual for a 44-year-old man and a 16-year-old girl to engage in a sexual encounter, the prosecution was burdened to explain what normalized the practice in the minds of the participants. Gitelman's willingness to engage in multiparty sex suggests he perceives intimacy unconventionally, which rebuts the presumption that he adheres to conventional norms. And the presence of an older student—serving possibly as a groomer, a normative model, or even a protector—could explain how the teacher was able to overcome his much younger student's natural reservations.
Gitelman argues the evidence of multiparty sex was irrelevant because those acts were dissimilar to the charged offenses. We find the dissimilarity to be superficial. The charged offenses occurred after Gitelman leveraged his role as trusted companion and mentor to overcome his students' reservations. In the uncharged acts he additionally leveraged the calmative and normative influence of an older student, to the same effect. That he engaged in the latter acts tends in reason to show he was able to commit the charged offenses.
Gitelman argues the evidence of multiparty sex was extraordinarily inflammatory and unduly prejudicial because it would have overborne the sensibilities of the jurors and compelled them to convict him for the uncharged acts even if the charged offenses were unproven. We disagree. Sexual contact between a trusted mentor and a decades-younger student, a minor, is so unusual and disturbing of itself that the addition of a second student to the scenario is unlikely to be significantly more inflammatory.
The same considerations pertain to Kendra's testimony about Gitelman using devices during their sexual encounters. Use of such devices is not discordant with—and no more inflammatory than—the charged offense.
The probative value of evidence concerning multiparty sex and the use of devices was not outweighed by its prejudicial effect.
IV. Admission of a Witness's Opinion of the Truth of the Students' Accusations
Barbara Snyder, from whom Gitelman was divorced in 2012, testified that during the last few years of their marriage she would find articles of women's clothing not belonging to her in their laundry. Gitelman would tell her that students had left the clothing at the studio. After learning of Yasmin's accusations on Facebook, Snyder disbelieved his explanation, and she wrote a letter to USA Taekwondo, the sport's national governing body, accusing Gitelman of inappropriate behavior with his students. On cross-examination, the defense questioned Snyder about the disarray of her finances after she separated from Gitelman, presumably to suggest she bore animus toward him, and therefore had reason to falsely accuse him. On redirect, the prosecutor asked Snyder why she wrote the letter. She testified, "Because I believed the girls the moment I saw Yasmin's statement . . . ." The trial court overruled defense counsel's motion to strike the response as irrelevant.
Gitelman contends the trial court erred in failing to order the testimony stricken as improper lay opinion.
A witness cannot express an opinion concerning the guilt, innocence, or truthfulness of a defendant. (People v. Torres (1995) 33 Cal.App.4th 37, 46; People v. Melton (1988) 44 Cal.3d 713, 744 ["Lay opinion about the veracity of particular statements by another is inadmissible on that issue"].) But Gitelman forfeited his argument by failing at trial to object to Snyder's statement on the ground it constituted improper lay opinion. (In re Seaton (2004) 34 Cal.4th 193, 198.) In any event, the argument is without merit because Snyder's statement was not admitted as an opinion about Yasmin's veracity but to rebut the defense's suggestion that Snyder's accusations against Gitelman were founded on personal resentment.
V. Hypothetical Situations Posed to Defense Character Witnesses
Gitelman called six witnesses to testify as to his good character. On cross-examination, the prosecutor asked each witness if his or her good opinion of Gitelman would change if he or she discovered the accusations against him were true. Gitelman argues a hypothetical question of this nature may only assume the existence of accusations, not the truth of them. For example, Gitelman argues, a prosecutor may ask whether a defense character witness's opinion would change if the witness knew the defendant had been accused of wrongdoing, but may not ask the witness to assume the accusation is true. Gitelman cites no authority in support of the argument, and we have discovered none.
When a character witness testifies that a defendant's reputation for honesty and integrity is such as to make the truth of accusations against him unlikely, the prosecution may test the credibility of the witness by asking whether the opinion would change if the witness knew of a specified hypothetical fact. (See People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, 527.) No principle supports permitting the hypothetical to the posit only the existence of an accusation but not the truth of one. If a jury should know whether a character witness will overlook an accusation, it should know whether the witness will overlook guilt itself.
VI. Lay Opinion Concerning the Victims' Appearance
To rebut Yasmin's and Kendra's testimony that Gitelman served them alcohol in a hotel room at a tournament in 2010, defense counsel called Karen Jacquez, another student's mother, who was also at the tournament, to testify as to the women's appearance the next day. Jacquez testified she observed nothing out of the ordinary about them. Defense counsel then asked whether Jacquez had ever observed anyone who appeared to be suffering from a hangover. The prosecution objected that the question called for improper lay opinion. The trial court sustained the objection. Gitelman argues the court erred in cutting off Jacquez's testimony, but he concedes this error standing alone was not prejudicial.
A lay person is capable of observing that someone shows no signs of a hangover. The foundation for such an observation can be established by asking if the witness has ever observed someone who was suffering from a hangover. (See People v. Navarette (2003) 30 Cal.4th 458, 493-494 [foundation for lay opinion about intoxication can be established by asking whether the witness has ever seen someone who was intoxicated].) Whether such an observation tends in reason to establish the absence of a hangover goes to the weight of the observation, not its admissibility. The trial court therefore erred in cutting off Jacquez's testimony. The error was nonprejudial, however, because Jacquez had already testified she observed nothing out the ordinary about Yasmin and Kendra, which means she observed no sign of a hangover.
VII. Gitelman's Opinion as to why the Victims Would Accuse Him
During Gitelman's testimony, he denied he molested Yasmin and Kendra in his hotel room in 2010. Defense counsel then asked why he thought the women would lie about the events. The prosecution's objection that the question called for speculation was sustained, a ruling Respondent concedes was error.
Any error was nonprejudicial. Throughout trial, Gitelman explored the foundation of Yasmin's, Kendra's, and others' accusations at length. He hypothesized that the women resented him for disciplining them, interfering with their relationships, and being inattentive or unfaithful, and he speculated they and Brianna were manipulated into colluding to present a unified but fabricated story. When asked by the prosecutor whether he thought the witnesses against him were lying, Gitelman said, "I believe they were manipulated into the situation and it blossomed from that point." Gitelman offers no indication what more he could or would have said had he been permitted to answer this one question.
VIII. Argumentation
During cross-examination, the prosecutor asked Gitelman, "What did you do to allow seven people to lie about you?" Defense counsel objected that the question was argumentative, while Gitelman simultaneously answered, "I can break each one down for you, if you would like. I'd be happy to do so." Defense counsel then moved to strike the answer. The court ruled the answer would stand, after which the prosecutor indicated she had no further questions.
Gitelman argues the court erred in permitting the prosecutor to ask an argumentative question. The argument is without merit.
An argumentative question is one designed not to elicit information from the witness but to inform the jury of the questioner's position on a matter, i.e., to make "a speech to the jury masquerading as a question." (People v. Chatman (2006) 38 Cal.4th 344, 384.) "An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (Id. at p. 384) But a trial court has no power to prevent the asking of a question absent a timely objection. Here, defense counsel failed to object to the prosecution's argumentative question until after it had been posed and answered.
IX. Evidence Concerning Kendra's Ability
Kendra testified that she performed poorly at the tournament the day after Gitelman served her alcohol in his hotel room. When reminded that she had taken a silver medal, Kendra testified the result was "purely out of luck," as she was never very good at tae kwon do, notwithstanding Gitelman's continuous praise.
To rebut the implication that Gitelman disingenuously exaggerated Kendra's ability in order to groom her for a sexual relationship, defense counsel asked him about her final match at the tournament. Gitelman identified Kendra's opponent and stated she was a high level athlete. The prosecutor objected that the testimony was irrelevant, and the trial court sustained the objection.
Gitelman argues the trial court erred in excluding this testimony, but concedes that the error standing alone was not prejudicial.
Evidence is relevant if it tends in reason to prove or disprove a material fact. (Evid. Code, § 210.) Here, the prosecution intimated that Gitelman exaggerated Kendra's athletic ability as a way to groom her for sexual abuse. His testimony that Kendra lost to a worthy opponent had no tendency in reason to establish her relative athletic ability. The testimony was therefore irrelevant to rebut the evidence that Gitelman exaggerated Kendra's athletic ability.
X. Hearsay Text Message
Melissa Walter, a defense witness, testified her children attended Gitelman's tae kwon do school. The prosecutor asked if it were true that she told her husband, Craig Walter, that Gitelman lied to her multiple times, and she decided to remove her children from the school and look for another school. Melissa denied she had ever told her husband Gitelman lied to her, and denied deciding to remove her children from his school.
Gitelman argues the text message was inadmissible hearsay, but concedes the error standing alone was not prejudicial.
"'Hearsay evidence' 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." (Evid. Code, § 1200, subd. (a).) Hearsay is inadmissible unless an exception applies. (Id. at subd. (b).)
Here, Craig's text message contained statements made outside of court by a nonwitness. It was offered to prove the truth asserted by Craig in the message, that his wife disapproved of Gitelman and his school. It was therefore inadmissible.
Respondent argues the text message was not admitted for the truth of its contents, but only to impeach Melissa. The argument is without merit, as the message would have no tendency to impeach Melissa if it was not considered for its truth. Respondent argues the message was admissible under an exception to the hearsay rule applicable to a witness's prior inconsistent statements. (Evid. Code, § 1235.) The argument is without merit because Craig was not called as a witness.
XI. Prosecutorial Misconduct
During closing arguments, the prosecutor made four statements that Gitelman argues constituted misconduct. The prosecutor said: (1) Gitelman testified he "distinctly remembered" that an uncalled witness observed certain events and would be able to exonerate him, yet never produced the witness; (2) "You would be confused" if you were in the victims' shoes; (3) "we get" that Snyder (the ex-wife) would finally realize Gitelman was a predator; and (4) the reason Gitelman was on the stand "for six or seven hours is because they know that the longer they leave him up there talking to you, the more he can try to ingratiate himself with you. The more he can try to pander to you." Gitelman objected to none of these statements, but had objected on several prior occasions that the prosecutor mischaracterized evidence during closing argument. The objections were uniformly overruled.
Gitelman argues these statements constituted misconduct in that they respectively (1) mischaracterized the evidence (he testified he only thought the witness observed certain events, but was uncertain); (2) inflamed the jurors by implying their allegiance and commonality with the victims; (3) impermissibly vouched for Snyder's veracity; and (4) denigrated Gitelman and defense counsel.
Respondent preliminarily argues Gitelman forfeited his misconduct claim by failing to object to the prosecutor's comments or seek a jury admonishment. Generally, a defendant may not complain on appeal of prosecutorial misconduct absent a timely objection at trial and a request that the jury be admonished to disregard the impropriety, unless an objection or request for admonition would have been futile or the harm could not have been cured. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) On this record, nothing suggests either that a proper objection would have been overruled or an immediate jury admonition ineffective. Gitelman was required to assert a timely and specific objection, and his failure to do so forfeits his claim of prosecutorial misconduct on appeal. (People v. Turner (2004) 34 Cal.4th 406, 421.) However, Gitelman also argues his attorney's failure to object to the prosecutor's misconduct constituted ineffective assistance. An ineffective assistance claim may be raised for the first time on appeal. (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
A prosecutor's misconduct violates due process if it infects a trial with unfairness. (People v. Harrison (2005) 35 Cal.4th 208, 242.) Less egregious conduct may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument and determine whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Dennis (1998) 17 Cal.4th 468, 522.) A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. (People v. Samayoa (1997) 15 Cal.4th 795, 837.) But a prosecutor may not suggest the existence of facts outside of the record by arguing matters not in evidence (People v. Benson (1990) 52 Cal.3d 754, 794-795); mischaracterize the evidence (People v. Hill (1998) 17 Cal.4th 800, 823); vouch for the credibility of a witness (People v. Boyette (2002) 29 Cal.4th 381, 433), or appeal to the jury's sympathy, passion, or prejudice (People v. Fields (1983) 35 Cal.3d 329, 362). Although a prosecutor "may strike hard blows, he is not at liberty to strike foul ones." (Berger v. United States (1935) 295 U.S. 78, 88.)
Here, there is no reasonable likelihood the jury would have construed or applied any of the remarks complained of in an objectionable fashion. First, the distinction between Gitelman having "distinctly remembered" that an uncalled defense witness could exonerate him versus only thinking the witness could exonerate him is so minor that it is unlikely the jury's decision whether to fault him for failing to call the witness would hinge on it. Second, the prosecutor's invitation to the jury to empathize with the victims ("You would be confused" too), and the call to appreciate Snyder's experience ("we get" her situation), merely put into words the tacit purpose of closing argument. Every attorney arguing to a jury implicitly appeals for understanding and credence. It is unlikely that expressing that appeal overtly would sway a juror actually to side with a party where absent the verbalization the juror would not. Finally the prosecutor's observation that Gitelman took a long time trying to win over the jury was wholly unremarkable. "'The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence . . . [and] to argue on the basis of inference from the evidence that a defense is fabricated . . . .'" (People v. Boyette, supra, 29 Cal.4th at p. 433.)
XII. Cumulative Error
Gitelman contends that even if any of the claimed errors individually do not mandate reversal, the cumulative effect of such errors denied him his right to a fair trial.
A "series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) However, "[l]engthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (Ibid.; see Bruton v. United States (1968) 391 U.S. 123, 135 ["'A defendant is entitled to a fair trial but not a perfect one'"].)
We discern three minor errors. The trial court erred in (1) precluding Jacquez from testifying whether she had ever observed someone suffering the effects of a hangover; (2) precluding Gitelman from offering an opinion as to why Yasmin and Kendra would lie about the events in his hotel room in 2010; and (3) admitting Craig Walter's text message containing hearsay statements that impeached Melissa Walter's testimony about her approval of Gitelman and his school.
Each of the errors was harmless in itself, and on this record did not combine to result in an unfair trial. First, as discussed, Jacquez was permitted to testify that she observed nothing out of the ordinary about Yasmin and Kendra in 2010 after Gitelman purportedly plied them with alcohol. Further testimony that the women did not appear to be experiencing hangovers would have added nothing. Second, Gitelman had ample opportunity throughout trial to explain why he believed Yasmin and Kendra were untruthful. The court's foreclosing one instance of such testimony detracted nothing from the jury's understanding of his position. Third, the fact that at some time in the past a parent disapproved of a teacher and his school for unstated reasons had only minimal relevance to the credibility of that witness's current opinion, and even less to the central issue at trial.
In sum, the errors were de minimus individually and cumulatively, and their effect was too slight to warrant reversing the judgment of guilt.
XIII. Clerical Error in the Judgment
The abstract of judgment states that Gitelman's conviction for commission of a lewd or lascivious act involving a child constitutes a serious or violent felony. It does not. (See §§ 1192.7, subd. (c) [defining serious felonies] & 667.5, subd. (b) [defining violent felonies].) We will therefore order that the abstract be corrected.
DISPOSITION
The judgment is modified to reflect that violation of section 288, subdivision (c)(1) does not constitute a serious or violent felony. In all other respects the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment to reflect the judgment as modified and forward a copy of it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
CHANEY, J. I concur:
JOHNSON, J. I will be filing a dissent.
ROTHSCHILD, P. J.