Opinion
F060681
09-14-2011
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARCUS MENDOZA, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F09900838)
OPINION
THE COURT
Before Gomes, Acting P.J., Dawson, J. and Detjen, J.
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Kathleen A. McKenna, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted appellant, Robert Marcus Mendoza, of aggravated sexual assault (oral copulation) of a child (Pen. Code, § 269, subd. (a)(4); count 1), aggravated sexual assault (sexual penetration) of a child (Pen. Code, § 269, subd. (a)(5); count 2); and committing a forcible lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); count 3). On counts 1 and 2, the court imposed consecutive terms of 15 years to life in prison. The court stayed execution of sentence on count 3 pursuant to Penal Code section 654.
On appeal, appellant's sole contention is that the prosecutor committed misconduct in his closing argument. We affirm.
FACTS
On February 8, 2009, S. went to visit her cousin, R., who lived with S.'s aunt and appellant, the husband of S.'s aunt. That night, S. fell asleep on the couch, but got up later to go to the bathroom. She entered the bathroom and locked the door behind her, but somehow appellant opened the door. Earlier, S. had seen appellant drinking whiskey.
Except as otherwise indicated, our factual statement is taken from S.'s testimony.
Appellant entered the bathroom. He repeatedly told S., who was wearing a shirt and pants and, underneath, a bra and panties, to take off her clothes. S. refused. Appellant threatened to kill S. if she did not comply, and reached toward his back pocket where, S. knew, he kept a knife. At about the time appellant was telling S. to remove her clothes, he hit her several times on the side of the head with an open hand.
Appellant removed S.'s shirt, pants, bra and panties and "started touching [her]." He touched her "butt" and her vagina. When asked if appellant's finger was "at least somewhat inside [S.'s] vagina," she answered, "It was just touching my skin like right there."
While S. was on her knees, appellant grabbed her by the hair and forced his penis into her mouth. She removed his penis from her mouth and he struck her. Thereafter, appellant forced her to lie on the floor, on her stomach, and inserted one of his fingers in her anus.
At about that time, S. heard her aunt drive up to the house. Shortly thereafter, her aunt, who had been "tr[ying] to get into the bathroom," "finally got in" and "jumped on top of [appellant]." At that point, S. ran out of the bathroom, went outside and got into her aunt's car.
City of Fresno Police Officer Paul Hill testified to the following. At approximately 2:44 a.m. on February 9, 2009, he was dispatched to a location in Fresno, after the police had received a 911 call. When he arrived, S. was seated in a van parked in the driveway. S. told the officer she had been trapped in the bathroom and appellant had forced her to lick his penis and had inserted his finger into her anus. Thereafter, Officer Hill and other officers entered the house. Officer Hill heard appellant, who was in the bathroom, repeatedly yelling "kill me." Appellant was "not compliant" but eventually officers were able to take him into custody.
The 911 call was apparently placed by a 10-year-old male cousin of S.'s. A recording of the call was played for the jury.
Patricia Spiro testified to the following. She is a registered nurse. She works in the Sexual Assault Forensic Examiners (SAFE) Program at Community Regional Medical Center. On the morning of February 9, 2009, she examined S., who was 12 years old at that time. S. told Spiro that appellant penetrated her anus and vagina with his finger, and that "there was oral copulation of [appellant] by [S.]" S. had a "moderate amount" of blood on her "external vagina" and "anal area." She was on her menstrual cycle.
A forensic toxicologist testified that a test of blood samples provided by appellant approximately three hours after the 911 call showed that appellant had a blood alcohol content of .025 percent.
A police criminalist testified to the following. Blood reference samples were taken from appellant and S. Swabs taken from appellant's hands tested positive for blood, from which the criminalist extracted DNA. Testing of the DNA revealed the following. Blood from the left hand swab came from two persons, a "major male contributor" and "at least one minor contributor ...." "The major profile is consistent with [appellant]. [S.] cannot be eliminated as a possible minor contributor." The DNA taken from the right hand swab came from "one major female donor" and "at least one minor male donor." "The major profile is the same as [S.]." Appellant "cannot be eliminated as a possible minor donor .... "
DISCUSSION
Appellant contends the prosecutor committed misconduct. Specifically, appellant argues that the prosecutor presented a "very brief closing argument" and then, after defense counsel's closing argument, presented an "elaborate pre-prepared rebuttal argument that went far beyond the defense closing," thereby "'sandbag[ging]'" the defense and "undermin[ing] the fundamental fairness of appellant's trial" by "failing to afford defense counsel an opportunity to respond to the argument." (Unnecessary emphasis omitted.)
Background
The prosecutor's closing argument to the jury consisted of an opening portion and a rebuttal. The opening portion takes up slightly less than nine pages of the reporter's transcript. The defense closing argument takes up slightly less than 17 pages. The opening portion of the prosecution argument and the defense closing took 48 minutes, suggesting that the prosecutor spoke for approximately 16 minutes and the defense counsel spoke for 32 minutes.
The prosecutor's rebuttal is reported in slightly less than 14 pages of transcript. As part of his rebuttal, the prosecutor played recordings of the 911 call and seven portions of a video and sound recording of a police interrogation of appellant that had been played for the jury. The content of the 911 call and the video/sound recordings was not reported. The prosecutor's rebuttal, including the playing of the recordings, took 35 minutes.
The appellate record includes "Court Exhibit #4," a compact disc containing a "PowerPoint" presentation consisting of two parts, entitled, respectively, "Trial Presentation - First Close" (first part) and "Trial Presentation - Second Close" (second part). The first part consists of 26 slides, each containing text only, and corresponds to the opening portion of the prosecutor's closing argument. The second part consists of 28 slides containing text; six slides of still photographs; video and sound recordings of seven separate portions of the police interrogation of appellant; and an audio recording of the 911 call. The recording of the 911 call is approximately 15 minutes long. The total running time of the seven video recordings is approximately 90 seconds. As discussed in more detail below, the second part corresponds to the prosecutor's rebuttal argument.
At the outset of the opening portion of the prosecutor's argument to the jury, the prosecutor noted he was having "technical" difficulties. At one point during the prosecutor's rebuttal, defense counsel raised an objection that was discussed in an unreported sidebar conference. Defense counsel raised a second objection to the prosecution's discussion of DNA evidence on the ground that "[t]here is no evidence to support" the prosecution's assertions. The court instructed the jurors to use their judgment in evaluating the prosecutor's argument.
After the jury retired to deliberate, appellant moved for a mistrial on grounds of prosecutorial misconduct. Defense counsel argued that the prosecutor, in his rebuttal, "[brought] up additional items ... not cover[ed]" in the defense closing argument, thereby "sandbag[ging]" the defense. Specifically, counsel stated, "In no way did I comment on the 911 call ...." Defense counsel asserted, "It is obvious it was ... calculated as [the prosecutor] had it all on his Powerpoint as well as keyed in his closing arguments by way of the audio."
The prosecutor responded that his "primary reason" in playing the recording of the 911 call was to "support the credibility of [S]." He also stated, "I was experiencing technical difficulties on my first opening which substantially truncated my initial opening statement."
The court denied the motion. The court stated it was "certainly clear" from the prosecutor's rebuttal, which, the court noted, "had been prepared very carefully well in advance," that the prosecutor "had, if nothing else, anticipated what the Defense closing might be." The court "[did] not believe that rises to the level of the term sandbagging." Applicable Principles
"'The applicable federal and state standards regarding prosecutorial misconduct are well established. "'A prosecutor's ... 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.] 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."'" [Citation.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 960.)
"When the evidence is concluded," the parties "may argue the case to the court and jury." (Pen. Code, § 1093, subd. (e).) The prosecutor has the right to open the argument and "the right to close." (Ibid.) And "a prosecutor is justified in making comments in rebuttal ... which are fairly responsive to argument of defense counsel and are based on the record." (People v. Hill (1967) 66 Cal.2d 536, 560.) However, a prosecutor commits misconduct if he "sandbags" the defense by giving a perfunctory initial closing argument followed by a lengthy rebuttal: "Section 1093, subdivision (e) ... does not permit the prosecutor to give a perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply, and then give a 'rebuttal' argument--immune from defense reply--10 times longer (35 reporter transcript pages) than his opening argument. [Citations.]" (People v. Robinson (1995) 31 Cal.App.4th 494, 505 (Robinson).)
Analysis
At the outset, we seek to clarify what is not at issue. As appellant suggests, and the People do not dispute, from the record it appears as follows: In advance of the defense closing argument, the prosecutor prepared, for use in his closing argument, a two-part PowerPoint presentation. Due to technical difficulties, he was unable to use either part of the PowerPoint presentation in the opening portion of his closing argument but he did present the second part to the jury in his rebuttal. In addition, appellant concedes that the portion of the prosecutor's rebuttal reported in the first five pages of transcript of the rebuttal responded directly to the defense closing argument and did not constitute misconduct. Appellant bases his claim of "sandbagging" on the remainder of the prosecution rebuttal, to which we now turn.
We note that defense counsel did not request an opportunity to respond to the prosecutor's rebuttal. Rather, he waited until the jury had retired to deliberate before raising his claim of "sandbagging" in his motion for a mistrial. We assume without deciding that this claim is properly before us on appeal. In general, "To preserve a [prosecutorial] misconduct claim for appellate review, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the remark (or conduct) unless such an admonition would not have cured the harm." (People v. Booker (2011) 51 Cal.4th 141, 184.) Arguably, the purported misconduct of the type complained of here could not be cured by admonishment to disregard, but could be cured by granting a defense request to respond to the challenged argument. We are aware of no published case that addresses the question of whether a claim of prosecutorial misconduct of the type at issue here is forfeited because trial counsel does not request an opportunity to respond to the argument claimed to have "sandbagged" the defendant.
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In the first part of the challenged portion of the prosecutor's rebuttal—beginning with an approximately 12-second video recording of appellant's interrogation, followed by argument accompanied by several PowerPoint slides--the prosecutor argued that S. was a credible witness. This was in direct response to the defense counsel's challenge to S.'s credibility. Defense counsel, in closing argument, referring to the evidence regarding DNA, and in particular noting "[t]here was no DNA evidence of the defendant's DNA located anywhere in the vaginal area on [S.] or within her mouth," asserted: "The burning question remains, do you believe [S.] as to the oral copulation ... and disbelieve [S.] as to the lack of insertion, either vaginal or anal, when the DNA is lacking[?] Alternatively, do you believe [S.] as to the anal activities where there may or may not be supporting DNA[?] And is [S.] a person who has amplified the defendant's activities because she was angry with him and has a legitimate axe to grind based upon his mistreatment of her[?]"
Next, the prosecutor played an approximately 10-second video of the interrogation in which appellant, upon being asked if it was "possible" S. had told police the truth, answered, "Anything's possible." The prosecutor characterized this as appellant's "best denial The prosecutor also referred back to the previous video in which appellant told the detective "everything is just a blur." In this portion of the rebuttal argument, which was accompanied by a slide with text arguing that S.'s account was corroborated, the prosecutor again sought to persuade the jury that S. was truthful in her account of events. Thus, this portion of the rebuttal was also a response to the defense attack on S.'s credibility.
Next, the prosecutor played two more video segments of the interrogation, with a combined running time of less than one minute, accompanied by slides indicating the detective's questions and appellant's responses, which suggested that appellant committed the instant offenses out of sexual frustration and in an effort to "use" S. to "get back at" his wife. In a very brief argument, reported in three lines of transcript, the prosecutor argued that the prosecution "[did] not have to prove motive." Defense counsel, however, in his closing argument did not assert that the prosecution was required to prove motive, nor raise any other issue with respect to motive.
Next, the prosecutor played the fifth video segment, in which appellant told the detective that "[his] DNA should not be on [S.] period." The prosecutor's very brief comment was "His DNA was not on her, but hers was certainly on his. Her menstrual blood was on his fingers." This was a direct response to defense counsel's argument that "[t]here was no DNA evidence of the defendant's DNA located anywhere in the vaginal area on [S.] or within her mouth."
Next, the prosecutor played the sixth video segment, in which appellant stated he did not specifically remember grabbing S. by the hair. The prosecutor then argued, with the aid of several PowerPoint slides, that appellant did, in fact, grab S. by the hair and that this factor helped show that appellant had the requisite specific intent to commit the offenses charged in counts 2 and 3, notwithstanding the evidence that appellant was intoxicated. This was in direct response to defense counsel's argument in closing that appellant lacked the ability to form the requisite specific intent due to voluntary intoxication.
Next, utilizing PowerPoint slides containing text, photographs and the final video segment in which appellant indicates that he does not believe S. lied to police and Nurse Spiro in her (S.'s) account of appellant's attack, the prosecutor addressed the use of circumstantial evidence, what constitutes penetration for purposes of the aggravated sexual assault charged in count 2, S.'s credibility and the reasonable doubt standard. Defense counsel touched on all these matters in his closing argument.
Finally, the prosecutor played a recording of the 911 call, in order, he suggested immediately thereafter, to convey to the jury "a sense of the horror of what happened
Appellant likens the instant case to Robinson, where, as indicated above, the court found the prosecutor committed misconduct by giving a "perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply," followed by "a 'rebuttal' argument" that was "10 times longer (35 reporter transcript pages) than his opening argument." (Robinson, supra, 31 Cal.App.4th at p. 505.) Here, however, the prosecutor did not give a perfunctory opening argument, and his rebuttal, which was roughly the same length as the defense closing argument, was twice as long, not 10 times as long, as the opening portion of his closing argument. Moreover, as our summary of the prosecutor's rebuttal indicates, notwithstanding that the prosecutor apparently prepared his entire PowerPoint presentation in advance of the defense closing argument, the vast majority of the prosecution rebuttal was a fair response to that argument. On this record, it cannot be said that the prosecutor's conduct was so egregious that it infected the trial such that the trial was fundamentally unfair, or that the prosecutor used deceptive or reprehensible methods. (See People v. Hill, supra, 66 Cal.2d at p. 565 [rejecting claim of prosecutorial misconduct where "for the most part, the remarks [of the prosecutor in rebuttal closing argument] constitute reasonable and proper response to defense counsel's closing arguments" (italics added)].) Therefore, appellant's claim of prosecutorial misconduct fails.
DISPOSITION
The judgment is affirmed.