Opinion
H042736
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. MILTON GUILLERMO MEZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1367377)
Following a jury trial, defendant Milton Guillermo Meza was convicted of two counts of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) (counts 1 and 5), forcible rape (§ 261, subd. (a)(2)) (count 2), assault by means of force likely to produce great bodily injury (§ 245, subd (a)(4)) (count 3), and making criminal threats (§ 422) (count 4). The jury also found true a kidnapping allegation pursuant to section 667.61, subdivision (d)(2), the "One Strike" law. Counts 1 through 4 involved one victim, and count 5 involved a different victim.
All further statutory references are to the Penal Code unless otherwise stated.
At sentencing, the court imposed a three-year term on the conviction of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 3) and a concurrent two-year term on the criminal threats conviction (§ 422) (count 4). The court imposed a 25-years-to-life term of imprisonment on the conviction of forcible rape (§§ 261, subd. (a)(2); 667.61, subds. (a), (d)) (count 2). It imposed an indeterminate life term on the conviction of kidnapping to commit rape (§ 209, subd. (b)(1)) (count 1) and stayed that sentence pursuant to section 654. The court imposed an indeterminate term of seven years to life on the conviction of kidnapping to commit rape (§ 209, subd. (b)(1) (count 5). Defendant's total sentence consisted of a determinate term of three years, consecutive to an indeterminate term of 25 years to life, consecutive to an indeterminate term of seven years to life.
On appeal, defendant contends that (1) in closing argument, the prosecutor engaged in prosecutorial misconduct by giving case law examples from judicial opinions and that (2) this court must correct the unauthorized sentence imposed by the trial court on the conviction of kidnapping to commit rape as charged in count 5.
We modify the judgment to reflect the statutorily authorized sentence on the count 5 conviction of kidnapping to commit rape. We find no basis for reversal, and affirm the judgment as modified.
I
Evidence
Y. Doe
At trial, Y. identified defendant as the man that raped her. She indicated that she had not agreed to any of the things that defendant did to her.
On the night of September 7, 2013, Y., who was then 18 years old, was working as a cashier at a Wendy's located on McKee Road, near the 680 freeway. Her shift ended at approximately 10:00 p.m. Her father usually picked her up at work, but that night he did not come. Y. tried to call him, but he did not answer his phone. After waiting 20 to 30 minutes for her father, Y. began walking on McKee Road toward the 680 freeway, on the same side as a McDonald's restaurant. She was still wearing her work uniform, which consisted of a black shirt and black pants. She was holding her iPhone and a bag of Wendy's food. It was very dark outside.
While walking on McKee Road, Y. was using her phone and "trying to put on some music." She crossed an exit from 680 south, and then she crossed the entrance to 680 south. Before she reached the freeway overpass and as she was trying to put in her earphones, defendant came out of the bushes near the freeway entrance. He looked at her, smiled, said he was Carlos, and "bear hugged" her from the back. Y. was screaming. He twice called her by her middle name. Defendant covered her mouth with his hand, and she was trying to scream, bite his hand, and fight back. Y. was then 4 feet 11 inches tall and weighed about 106 pounds. Defendant was approximately 5 feet 6 or 7 inches tall and weighed approximately 160 pounds.
Defendant pulled Y. into the bushes and somehow got her to the ground. Once they were in the bushes, he tried to pull down Y.'s pants. He told her to relax in English. He told her that he was going to kill her if she was not quiet. Y. believed him and stopped screaming.
Y. was lying on the ground, and "he had [her] legs open." He was on top of her, he was holding her hands with one of his hands, and he was pulling down her pants with the other hand. Defendant pulled her pants and underwear down around her knees, and he put his penis inside of her and thrusted. He tried to choke her with his hands for five to 10 seconds. He grabbed her head and hit it against the ground three or four times. Y. was scared, and she felt a little bit of pain on the back of her head. The rape continued for approximately 20 minutes. She "told him to stop," and he kept telling her "to relax." Y. "took a good look at" her assailant's face when he was on top of her.
During the attack, Y. smelled cologne and alcohol. Toward the end of the attack, defendant made a hand gesture like a gun and put it to the "temporal area of [her] head." Defendant ejaculated, and he got up, and pulled up his pants. He handed Y. the side of her pants that had come off, and he also handed her one of her shoes that had fallen off during the struggle. He then walked away.
Y. began walking and crying. She walked up to a car exiting the southbound 680 freeway onto McKee Road. She waved down the driver and asked for his help. At this point, Y. no longer had her cell phone, and she did know where it was. Y. "looked very scared" to the driver, she was crying, and her body was covered with leaves and grass. She told him that she had been raped and that she had lost her cell phone, probably in the bushes. The driver called the police, and he then lent his phone to Y. so that she could call her parents. Y. called her father. Her father and the police came.
San Jose Police Officer Keith Aldinger was working on the night of September 7, 2013, and he was dispatched on a reported rape. He went to the area of McKee Road and the 680 freeway. When he arrived, there was already an ambulance and a CHP officer at the scene. Officer Aldinger contacted the CHP officer. He then spoke with Y., who was sitting in the backseat of her parents' car, and she was crying, upset, and "extremely sad." He confirmed with Y. that she had been raped.
Y. showed the bushes where the rape had occurred to Officer Aldinger, and photographs were taken. She provided a description of her attacker. The officer issued a bulletin describing the suspect, a Hispanic male adult who was in his mid-20's, 5 feet 6 or 7 inches tall, 160 pounds, and wearing a black T-shirt and jeans.
The bushes where Y. was raped were approximately 10 to 15 feet from the sidewalk. The bushes were approximately six feet tall, and there was a cavity inside the bushes so that a person inside the bushes could not be seen from the sidewalk. There was dried grass all over Y.'s clothes and dirt on her clothes and on her. Officer Aldinger took photographs of Y. that night. Y. had a bruise on her left elbow and slight bruising or swelling on her neck. The police found Y.'s cell phone in the gutter by the sidewalk.
Y. was transported to Valley Medical Center (VMC), where she was examined by a registered nurse who was a SART (Sexual Assault Response Team) examiner. At trial, Y. recalled that, at that time, the back of her head, one of her fingers, and her hip were hurting and that her throat was sore.
The SART nurse examined Y. from head to toe. The nurse found vegetation and soil debris in multiple areas, including on Y.'s back, shoulder area, and neck area, and a "sticky tar-like substance" on her buttocks and lower back. Y. had four abrasions to her back, abrasions to the left side of her face under her eye and her cheek, abrasions around her jawline, there were injuries to her fingers, and tenderness on the back of her head. Vegetation and soil were collected from Y.'s vaginal area. The nurse found, "on the outside to the inside" of her "vaginal lips," "an abrasion, redness, some ["red-tinged"] moist secretions and some bruising." When the nurse examined the inside of the vagina, she found "a thick, pink-red liquid discharge." She observed an abrasion to the labia minora and light purple bruising to the peritoneal area on the right side. The nurse collected samples by swabbing Y.'s vaginal area, and when the wet-mount slide was examined under a microscope, she was able to see "positive motile sperm," which means that "the sperm are still swimming" and their "tails are still wiggling." In the nurse's opinion, her findings were consistent with sexual assault.
Officer Aldinger collected Y.'s clothes after she removed them for the medical examination. After the examination was completed, Officer Aldinger received a sealed SART kit from the SART nurse. He later booked the kit and Y.'s clothes into evidence at the police department.
Officer Aldinger interviewed Y. at VMC approximately 30 to 45 minutes after the initial call. The interview was recorded and later played for the jury at trial. When asked at trial about Y.'s demeanor, the officer described her as "really upset," "very sad," quiet, and crying at times. Y. indicated that her attacker did not have a weapon. She said that she would be able to identify him.
In the better lighting of the VMC, Officer Aldinger could clearly see that Y.'s neck had been bruised, her face was slightly scratched, there was "dirt all over her face," and "quite a bit" of "her hair was falling out," which indicated to him that "her hair [had] been pulled." The officer took additional photographs of Y. Y. was "moving slowly" like she was sore and in some pain.
On September 9, 2013, a couple of days after she was raped, Y. met with Detective Michael Nasser, who was a sexual assault investigator for the San Jose Police Department and the investigating officer for the case. Detective Nasser showed her two sets of six photographs. A photograph of defendant was not in either set. She did not see her attacker in any of the photographs.
On October 4, 2013, Detective Nasser received an email from the crime laboratory stating that a DNA profile, which had been derived from the semen collected during the victim's sexual assault examination, had produced a suspect match in the computer database. Based on this new information, a photo lineup that included defendant's photograph was compiled.
On October 4, 2013, Detective Palmer showed the new set of six photographs that contained a photograph of defendant to Y. This detective did not know what defendant looked like or whether his photograph was in the lineup. Y. did not initially recognize her attacker in any photograph, but she asked to look at the photographs again. The second time, Y. saw someone who looked like the rapist. She signed her name on a photograph of someone who looked "similar to" the man who had raped her with respect to "the shape of his face and his eyes." The man was defendant.
On October 7, 2013, Detective Nassar met with defendant and obtained buccal swabs from him. They were booked into evidence and submitted to the crime lab for analysis on October 8, 2013.
A criminalist with the Santa Clara County District Attorney's Office Crime Laboratory testified as an expert in forensic DNA analysis. He received Y.'s SART kit to analyze, and he prepared physical evidence examination reports. Based on "the sperm cell portion of the vaginal swabs," the criminalist "developed a single-source [DNA] profile that originated from an unknown male." When the DNA profile was checked against the state DNA Index System, a matching profile was found but the individual's name was not disclosed. The San Jose Police Department sent a reference sample taken from defendant to the crime laboratory. The criminalist compared the reference sample to "the sperm cells in the VG swabs." The criminalist concluded that defendant was "the source of the DNA from the sperm cell fraction of [Y.'s] VG swab." There was a one out of 300 billion probability of finding a match between those two profiles again. Based on that probability, the criminalist felt confident that defendant was the source of the DNA, unless he had an identical twin. K. Doe
On October 1, 2013 K., who was then 20 years old, was working at the retail store near McKee Road and the 680 freeway. K. got off work at 11:00 p.m. that night. Her boyfriend was supposed to pick her up in front of the store, but when she did not see him, she decided to walk home. She was wearing a red T-shirt and black leggings. She was carrying a backpack and a lunch box. She was walking on McKee Road toward the 680 freeway and a McDonald's restaurant, on the same side as the McDonald's. K. was talking on the phone with her boyfriend. She was walking across the 680 freeway overpass. As she was almost across the overpass and as she was approaching the entrance to southbound 680, K. was "snatched from behind." She was surprised and grabbed in a "bear hug" from behind and pulled backward. At trial, K. identified defendant as her assailant.
When she was grabbed, K. responded by kicking and screaming, and trying to push defendant's face away with her left hand, which was free. She smelled alcohol. Defendant covered her mouth. He dragged her into the bushes and somehow got her on the ground. Defendant hung up her phone. K. was shocked and scared. Defendant was saying, "Shhh, shhh, shhh, shhh, shhh." She stopped screaming because there was no one to hear her because she was "in the area of the bushes where nobody [could] see or find [her]." She was lying face up, and defendant was on top of her. She momentarily focused on defendant's face; defendant was Mexican, he had long, black wavy hair, and he was wearing "a plaid flannel" and a black baseball hat with the bill facing forward. K. bit defendant's hand. Defendant was tugging at her leggings and trying to take them off. K. was afraid, and she was trying to kick defendant and fight back. Defendant tried to grab her ankle. Somehow, K. got both legs free, got up, grabbed her cell phone from the ground, and ran toward the McDonald's, approximately 100 yards to the west.
K. could not use her phone because it was "dead." She was running and screaming. A boy on a bicycle stopped and called 911 on his phone for K., and she spoke with the 911 dispatcher. At trial, a redacted 911 call was played for the jury.
Within minutes of the 911 call, police responded to the McDonald's parking lot. K. gave a description of the defendant to police and showed them where the attack had occurred.
On the night of October 1, 2013, San Jose Police Officer James Ho and his field training officer, Michael Roberson, responded to a call of sexual assault. Officer Ho spoke with the victim, who was standing in front of the McDonald's parking lot. She appeared shaken and was a little bit scared and angry.
At approximately 11:15 p.m. on October 1, 2013, San Jose Police Officer Jeffrey Rickel responded to a report of a sexual assault near McKee Road and the 680 freeway. He was quite familiar with that area. He described McKee Road as "a very busy east-west divided highway" that generally had traffic at "all hours of the day and night." He indicated that there was "almost always" a vehicle traveling on the 680 freeway overpass.
Officer Rickel was shown the location of the attack, and he searched the vicinity. Officer Rickel found a dark-colored baseball cap on the sidewalk, and another officer photographed it and collected it as evidence. While Officer Ho was speaking with K., he was handed a dark-colored baseball hat found near the 680 freeway overpass.
At the time of the attack, K. was 5 feet 1 inch tall and weighed 130 pounds. She thought her attacker was in his mid-20's to 30's and had no facial hair. She estimated that he was 5 feet 7 inches tall. Later that same night, K. was shown three males in separate field showups, but none were identified by her as her attacker. The police placed the baseball cap on at least one of the suspects during the showups.
Detective Nassar was the investigating officer for the sexual assault against K.. The detective personally met with her on October 2, 2013, and, at that time, he collected the clothing she had been wearing at the time of the October 1, 2013 attack, including, including a red shirt and a pair of "black spandex type pants."
Approximately two days after the attack, Detective Nassar asked K. to come to the station. Another officer showed her six photographs, including one of defendant. Although the photograph of defendant had stood out, she had thought that he "look[ed] like the guy that did it," and she had looked at the photograph six or seven times, she did not identify defendant as her attacker. She explained that it was a serious accusation, she "didn't want to be wrong," and she was not sure.
On October 3, 2013, Detective Nassar went with K. to the crime scene and had her show him "exactly where it happened." The detective sent the baseball hat to the crime lab. The detective asked K. to submit to a SART exam at VMC, and she did. Her SART kit was sent to the crime lab on October 4, 2013.
On October 10, 2013, K. looked at a second photographic lineup that contained defendant's photograph, but she did not identify a suspect.
The same criminalist who had testified in Y.'s case testified that he performed DNA analyses on several items in K.'s case. The criminalist obtained a DNA mixture from scrapings of the black baseball hat, and he determined that it was derived from at least three individuals, one of which was a male. He created a "major DNA profile" of the largest DNA contributor and determined that the DNA "originated from an unknown male." A search of the crime lab's in-house database using the major DNA profile produced a match to "the sperm cell fraction of [the Y.] VG swab." Using a reference DNA sample obtained from defendant, which was provided by Detective Nasser, the criminalist determined that defendant was "the source of the major DNA profile" in the DNA mixture from the hat. He testified that "statistically," there was a "one in 300 billion" probability of again finding this profile in the population, aside from an identical twin.
The criminalist's DNA analysis of K.'s T-shirt and "jeggings" indicated that, as to each item, multiple individuals, including at least one male, contributed to the DNA mixture and that K. was the source of the major DNA profile. He was unable to draw any further conclusions as to the DNA mixture derived from K.'s clothing. The criminalist performed a DNA analysis on the fingernail swabs obtained from K., and he determined that defendant was "inconclusive as a possible contributor to the mixture" of DNA.
II
Discussion
A. Legal Background
At trial, there were issues whether the movement of the victims satisfied the legal requirements to prove the charged crimes of kidnapping to commit rape and the One Strike kidnapping allegation.
Section 209 defines the crime of aggravated kidnapping, which includes kidnapping to commit rape. "In 1997, the Legislature revised [section 209] to define aggravated kidnapping as kidnapping to commit robbery or certain sex offenses, and modified the asportation standard by eliminating the requirement that the movement of the victim 'substantially' increase the risk of harm to the victim. (People v. Martinez (1999) 20 Cal.4th 225, 232 & fn. 4; § 209, subd. (b)(1); Stats.1997, ch. 817, § 2, p. 5519.)" (People v. Vines (2011) 51 Cal.4th 830, 869, fn. 20 (Vines), overruled on another point in People v. Hardy (2018) 5 Cal.5th 56. 103-104.)
At the time of the charged offenses, section 209, subdivision (b), provided, as it still does: "(1) Any person who kidnaps or carries away any individual to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life with the possibility of parole. [¶] (2) This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." Thus, section 209, subdivision (b), "does not require that the movement 'substantially' increase the risk of harm to the victim. (Cf. People v. Daniels [(1969)] 71 Cal.2d [1119,] 1139.)" (People v. Martinez, supra, 20 Cal.4th at p. 232, fn. 4; see People v. Robertson (2012) 208 Cal.App.4th 965, 982 (Robertson); Vines, supra, 51 Cal.4th at p. 869, fn. 20.)
As to the requirement that the defendant move a victim more than whatever is merely incidental to the commission of the intended rape (§ 209, subd. (b)(2)), the jury may consider "the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.]" (Vines, supra, 51 Cal.4th at p. 870.) "There is, however, no minimum distance a defendant must move a victim to satisfy" that requirement. (Ibid.)
As to the requirement that the movement of the victim increase "the risk of harm to the victim over and above that necessarily present" in the intended rape (§ 209, subd. (b)(2)), the word "harm" includes both physical and psychological harm. (Robertson, supra, 208 Cal.App.4th at p. 984; People v. Nguyen (2000) 22 Cal.4th 872, 885-886.) In evaluating whether the movement of a victim increased the risk of harm, a jury should consider "various circumstances," including "whether the movement decreases the likelihood of detection, increases the danger inherent in a victim's foreseeable attempts to escape, or enhances the attacker's opportunity to commit additional crimes. [Citation.]" (People v. Dominguez (2006) 39 Cal.4th 1141, 1152 (Dominguez).) "Measured distance . . . is a relevant factor, but one that must be considered in context, including the nature of the crime and its environment." (Ibid.) "[E]ach case must be considered in the context of the totality of its circumstances." (Ibid.)
The One Strike law (§ 667.61) is "an alternative sentencing scheme, but it applies only to certain felony sex offenses. (People v. Jones (1997) 58 Cal.App.4th 693, 709, fn. 9.)" (People v. Anderson (2009) 47 Cal.4th 92, 102.) "Rape, in violation of paragraph (2) . . . of subdivision (a) of Section 261" is one of those offenses. (§ 667.61, subd. (c)(1).) Section 667.61, subdivision (a), states in pertinent part that "any person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) . . . shall be punished by imprisonment in the state prison for 25 years to life." Subdivision (d)(2) of section 667.61 requires proof that "[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." (Italics added.)
"Since 1997, there is a difference in the asportation standards for the crime of aggravated kidnapping to commit . . . rape and for aggravated kidnapping alleged as a [O]ne-[S]trike enhancement to a sex crime. The former requires a showing that the movement increased the risk of harm to the victim, while the latter requires a showing that the movement substantially increased the risk of harm to the victim. [Citations.]" (People v. Perkins (2016) 5 Cal.App.5th 454, 466, fn. 4, italics added; see CALCRIM Nos. 1203 and 3175.) B. Alleged Prosecutorial Misconduct
1. Contentions
Defendant argues that the prosecutor engaged in prosecutorial misconduct during closing argument, which was accompanied by a PowerPoint slide presentation. The prosecutor's argument included slides that summarized factual examples derived from case law, with abbreviated references to the cases. The case law examples related to the issues of whether a victim had been moved a substantial distance and whether the movement substantially increased the risk of harm to her for purposes of the One Strike kidnapping allegation and whether the movement of a victim increased the risk of harm for purposes of the kidnapping charge.
While the slides do not provide full case citations, it appears that the factual examples taken from case law were derived from the following cases: People v. Solano-Rosario (Feb. 27, 2013, A134242) [nonpub. opn.] [victim moved from driveway in front of her house at least 20 feet into the bushes]; Robertson, supra, 208 Cal.App.4th 965 [victim moved from the garage's back door into its interior near a baptismal tub filled with water]; Dominguez, supra, 39 Cal.4th 1141 [victim moved from side of road, down an embankment, and into an orchard]; People v. Aguilar (2004) 120 Cal.App.4th 1044 [victim moved down sidewalk to darker location]; People v. Shadden (2001) 93 Cal.App.4th 164 [owner of video store moved nine feet from front counter to small back room]; People v. Diaz (2000) 78 Cal.App.4th 243 [victim moved from vicinity of a bus stop into a dark park near a closed building's rear entrance]; People v. Jones, supra, 58 Cal.App.4th 693 [victim forced to drive her car to carport of an apartment complex].)
Defendant maintains that the prosecutor erred by giving factual examples taken from case law during closing argument because (1) the prosecutor instructed on points of law without complying with statutory requirements for jury instruction and in violation of due process, (2) the prosecutor improperly invoked the authority of the appellate courts, (3) the prosecutor was improperly arguing facts not in evidence, (4) the case law examples were tantamount to improper, argumentative instruction, and (5) the case law examples misled the jurors. Defendant maintains that "the error violated [his] federal constitutional rights" and the People cannot prove the error harmless beyond a reasonable doubt.
2. Challenging Prosecutorial Misconduct
"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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
3. Forfeiture of Defendant's Appellate Claims of Prosecutorial Misconduct
During a break in the prosecutor's closing argument and out of the jury's presence, defense counsel belatedly objected to "the various slides in [the prosecutor's] PowerPoint that cited cases . . . where the facts determined that substantial movement was present in those cases." The defense counsel did not specify a particular legal ground for her objection or cite People v. Jasso (2012) 211 Cal.App.4th 1354 (Jasso). The defense counsel indicated that pinpoint instructions had not been considered during their discussion of jury instructions, and she asked the trial court to provide a limiting instruction, something "along the lines of" an admonishment that "the court provides the law that the jury can rely on and nothing more." The trial court indicated that it would remind the jurors that what attorneys say is not the law and that the jurors must follow the law provided by the court if there is a conflict. Defense counsel did not indicate that her objection had been misconstrued or that the proposed corrective instruction would be inadequate.
Immediately upon the jury's return to the courtroom, the trial court told the jury: "Please remember what the attorneys say is not evidence. If anything they say conflicts with my instructions on the law, you are to follow my instructions on the law." Without any further objection, the prosecutor continued her closing argument.
In general, "[t]o preserve a claim of prosecutorial misconduct during argument, a defendant must contemporaneously object and seek a jury admonition. (People v. Demetrulias (2006) 39 Cal.4th 1, 30-31; People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Bradford (1997) 15 Cal.4th 1229, 1333.)" (People v. Bonilla (2007) 41 Cal.4th 313, 336.) A defendant's failure to object to alleged prosecutorial misconduct and request a curative admonition will be excused under limited circumstances: "(1) the objection and/or the request for an admonition would have been futile" (People v. Panah (2005) 35 Cal.4th 395, 462), "(2) the admonition would have been insufficient to cure the harm occasioned by the misconduct" (ibid.) and (3) "the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition." (Ibid.) "A defendant claiming that one of these [forfeiture] exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (Ibid.)
The People now contend that defendant forfeited his claims of prosecutorial misconduct by failing to contemporaneously object on the grounds now raised and requesting a jury admonition. Citing this court's opinion in Jasso, defendant maintains that "[d]efense counsel's objection was timely because it was made while there was time for the trial court to cure the error."
In Jasso, during a subsequent break in the proceedings and outside the jury's presence, the defense counsel belatedly objected to allegedly improper remarks made by the prosecutor. (Jasso, supra, 211 Cal.App.4th at p. 1364.) In a footnote, this court stated, without any citation to authority, that "[d]efense counsel's objection, though not immediate, was timely, because it came in time for the trial court to cure any harm made by the remarks." (Id. at p. 1364, fn. 5.)
The California Supreme Court has been somewhat flexible in holding that a prosecutorial misconduct objection is preserved when an objection is raised belatedly but with sufficient opportunity to admonish the jury before its deliberations. In People v. Peoples (2016) 62 Cal.4th 718 (Peoples), which defendant cites, the Supreme Court concluded that some non-contemporaneous defense objections to prosecutorial misconduct were preserved. On appeal in Peoples, the defendant challenged 10 statements in the prosecutor's closing argument. (Peoples, supra, at p. 799.) "The Attorney General argue[d] that [the] defendant ha[d] forfeited his challenge to statements (6) through (10) because defense counsel failed to contemporaneously object to these statements or request a curative admonition at trial." (Id. at p. 801.) The defendant had belatedly challenged statements (7) through (10) by moving for a mistrial the day following argument. (Ibid.) The Supreme Court concluded that the defendant had "preserved his challenges to statements (7) through (10)." (Ibid.)
The Supreme Court explained its decision in Peoples: "Our reasons for requiring contemporaneous and specific objection to a prosecutor's alleged misconduct argue in favor of finding defendant's claims preserved here. ' "It is now well settled that an appellate court will not consider a claim as to the misconduct of counsel in argument unless objection is so made." [Citation.] "The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.' " [Citation.]' (People v. Seumanu [(2015)] 61 Cal.4th [1293,] 1341.) . . . [D]efendant here raised the issue before defense closing arguments began, thus providing the trial court with an opportunity to admonish the jury prior to the start of deliberations. Moreover, defendant's objections were specific enough for the trial court to craft suitable corrective instructions. Although neither their form nor their timing was ideal, defendant's objections to statements (7) through (10) by way of a motion for a mistrial put the court on notice that misconduct was alleged in time for the court to instruct the jury and correct any error." (Peoples, supra, 62 Cal.4th at p. 801, italics added.)
In this case, the trial court understood defense counsel to be objecting to an allegedly improper statement of law, and it instructed the jury accordingly. Defense counsel did not inform the trial court that it had misunderstood her objection or interpose any further objection. Under those circumstances, we conclude that defense counsel's specific objection, as construed by the trial court, was timely raised because the trial court had an opportunity to provide a curative instruction to the jury before its deliberations. (See Peoples, supra, 62 Cal.4th at p. 801.)
"A prosecutor's misstatements of law are generally curable by an admonition from the court. (People v. Bell (1989) 49 Cal.3d 502, 548.)" (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).)
Defendant's contention on appeal that the court's admonition to the jury was insufficient to cure the asserted prosecutorial misconduct was forfeited by failing to object to the admonition given by the court below. (See People v. Fuiava (2012) 53 Cal.4th 622, 728 ["To the extent defendant contends on appeal that the trial court's admonition was insufficient, he forfeited such a claim by failing to request a different admonition"].) In addition, defendant's claims of prosecutorial misconduct that he raises for the first time on appeal were, in the absence of any showing of futility, forfeited because they were not timely and specifically raised below. As indicated, "[g]enerally, a claim of prosecutorial misconduct is not cognizable on appeal unless the defendant made a timely objection and requested an admonition. [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 444 (Doolin).)
4. Alleged Failure to Comply with Statutory Procedure for Requesting Instruction
Defendant now asserts that the prosecutor's citation of case law during closing argument was improper because such argument was essentially a jury instruction given without the prosecutor's compliance with section 1093.5, which governs requests for jury instructions, and that such argument violated his due process rights to notice and a hearing on the jury instructions. Those specific objections were not raised below, and, consequently, they were not preserved for review on appeal.
"In any criminal case which is being tried before the court with a jury, all requests for instructions on points of law must be made to the court and all proposed instructions must be delivered to the court before commencement of argument. Before the commencement of the argument, the court, on request of counsel, must: (1) decide whether to give, refuse, or modify the proposed instructions; (2) decide which instructions shall be given in addition to those proposed, if any; and (3) advise counsel of all instructions to be given." (§ 1093.5.)
Further, we note that section 1093.5 allows a trial court to give additional instructions upon request of counsel "if, during the argument, issues are raised which have not been covered by instructions given or refused." At the time of defense counsel's objection to "various" PowerPoint slides shown during the prosecutor's closing argument, the trial court indicated that the prosecutor had not misstated the law and defendant does not argue otherwise now. If the defense had objected to oral argument based on section 1093.5, the prosecutor would have been entitled to request further instruction on the relevant law related to movement of a victim to prove the charge of kidnapping to commit rape or the One Strike kidnapping allegation.
5. Claim that Prosecutor Improperly Invoked the Authority of Higher Courts
Defendant now claims that the prosecutor engaged in misconduct by invoking appellate court authority during closing argument. In Jasso, "the prosecutor counseled the jury that higher-level legal institutions had considered facts similar to those [in that case] and applied the law to those facts in ways not favorable to criminal defendants." (Jasso, supra, 211 Cal.App.4th at p. 1364.) This court considered whether "the prosecutor's statements that the California Supreme Court and California Court of Appeal had upheld guilty verdicts on facts the prosecutor viewed as comparable to those" in Jasso constituted prosecutorial misconduct. (Id. at p. 1363.) This court reasoned: "The California Supreme Court and the California Court of Appeal are, respectively, the highest and second-highest echelons of the state court system. The prosecutor erred in invoking their authority. He should not have invoked the authority of any court that one or more jurors could surmise outranks the trial court. A fortiori, he should not have implied that the California Supreme Court would expect the jury to return a guilty verdict." (Id. at pp. 1366-1367.) We concluded that invoking the authority of higher court did constitute prosecutorial error, pointing out that jurors "might understand the prosecutor's argument as inviting them to follow higher authority, as [the prosecutor] interpret[ed] it, rather than the trial court's instructions." (Id. at p. 1369.)
Here, however, defense counsel did not object to the prosecutor's closing argument on the basis that she improperly invoked the authority of higher courts. Consequently, that objection was forfeited for review on appeal.
6. Claim that Prosecutor Improperly Referred to Facts not in Evidence
Defendant now contends that, by "us[ing] the facts of other cases to argue that the jury . . . should find substantial movement," the prosecutor improperly argued facts not in evidence. "It is well settled that it is misconduct for a prosecutor to base argument on facts not in evidence. [Citation.]" (People v. Mendoza (2016) 62 Cal.4th 856, 906 (Mendoza).) Courts have "repeatedly warned 'that statements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct.' (People v. Kirkes (1952) 39 Cal.2d 719, 724; see also People v. Taylor (1961) 197 Cal.App.2d 372, 381-384.)" (People v. Bolton (1979) 23 Cal.3d 208, 212.) "It has also been suggested that prosecutorial argument 'which goes beyond the evidence admitted may be violative of the Sixth Amendment which provides that every accused has the right to be confronted by the witnesses against him.' [Citation.]" (Id. at p. 213.)
Defendant is not challenging the prosecutor's examples of victims moved from a motel walkway or a sidewalk into a motel room to commit rape. The prosecutor gave those examples to show the meaning of "substantial distance," but she did not attribute them to a specific judicial opinion.
But the defense did not object below that the prosecutor's closing argument referred to facts not in evidence. Therefore, that objection was forfeited regardless of its merits.
Moreover, while we recognize that the challenged case law examples discussed by the prosecutor were not merely hypothesized scenarios offered to aid the jury's understanding of the law, no reasonable juror would have misunderstood that those case law examples constituted facts in evidence concerning the charged crimes or defendant. In closing argument, defense counsel reminded the jury that those case law examples involved other cases, other facts, and other women. The trial court repeatedly admonished the jury that what attorneys say is not evidence. On appeal, defendant recognizes that the challenged prosecutorial argument had "nothing to do with the specific facts of [his] case."
We note that "[t]he use of hypotheticals is not forbidden" in closing argument. (Mendoza, supra, 62 Cal.4th at p. 907; see People v. Davis (1995) 10 Cal.4th 463, 538.) In Mendoza, "the prosecutor compared the facts of the case with common, obviously hypothetical scenarios that jurors readily could posit for themselves," "[i]n order to illustrate the concept of malice." (Mendoza, supra, at p. 907.) The Supreme Court determined that "there is no misconduct when, as here, '[n]o reasonable juror would have misunderstood the expressly hypothetical example to refer to evidence outside the record.' [Citations.]" (Ibid.)
In our view, the vice of a prosecutor citing factual examples derived from opinions of higher courts during closing argument is not that those examples relate facts not in evidence but that the argument may intimate that higher courts have already considered similar facts and would agree with the prosecution's theory of the case. As already indicated, however, defendant forfeited such a claim of prosecutorial misconduct by failing to timely and specifically raise it. 7. Claim that Prosecutor's Argument Tantamount to Improper Argumentative Instruction
Defendant argues that the prosecutor's case examples were tantamount to argumentative jury instructions. This claim was forfeited by defense counsel's failure to specifically object on that ground below.
In any event, the argument lacks merit. The very purpose of closing argument is to argue the law and its application to the facts in evidence. Thus, a prosecutor may comment on the law and is "given significant leeway in discussing the legal and factual merits of a case during argument. (See People v. Mendoza (2007) 42 Cal.4th 686, 702.)" (Centeno, supra, 60 Cal.4th at p. 666.) What a prosecutor may not do is misstate the law. (People v. Bell, supra, 49 Cal.3d at p. 538.)
As already observed, defendant is not contending that the prosecutor misstated law pertaining to the movement of a victim for purposes of proving the charge of kidnapping to commit rape or the One Strike kidnapping allegation.
In contrast, "[jury] instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation]." (People v. Wharton (1991) 53 Cal.3d 522, 570.) "A jury instruction is improperly argumentative if 'it would invite the jury to draw inferences favorable to the defendant [(or the prosecution)] from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.' (People v. Wright (1988) 45 Cal.3d 1126, 1135; see People v. Mincey (1992) 2 Cal.4th 408, 437.)" (People v. Santana (2013) 56 Cal.4th 999, 1012, italics added.)
The prosecutor's case law examples offered in closing argument cannot be deemed improper on the basis that courts should not give argumentative jury instructions. It is, however, improper for a prosecutor to invoke the case law authority of higher courts to argue that the evidence warrants conviction. (See Jasso, supra, 211 Cal.App.4th at pp. 1366-1367, 1369.)
8. Claim that Factual Examples Derived from Case Law were Misleading
Defendant contends that the case law examples favored the prosecution and were misleading because the appellate standard of review for the sufficiency of evidence "favors upholding the verdict," published cases addressing the sufficiency of the evidence are not a fair representation of the resolutions of the "substantial movement" issue at trial, and the jurors may not have comprehended the legal context or significance of the case law examples. We agree that a prosecutor should not suggest that opinions of higher courts in other cases have "precedential value" or are a guide to jurors in their fact-finding and decision process. But none of the foregoing arguments were raised by way of specific objection to the prosecutor's closing argument. Consequently, all such objections were forfeited for appellate review.
9. Alleged Prosecutorial Misconduct was Not a Denial of Due Process
Even if the prosecutorial misconduct claims had been preserved for appellate review, the alleged prosecutorial misconduct did not result in a deprivation of federal due process. Defendant argues that the prosecutor deprived him of due process by failing to comply with section 1093.5 and "by surprising [him] and defense counsel with unnoticed citations to case law in the middle of her argument." Defendant contends that section 1093.5 "serves to give the defendant notice and an opportunity to be heard before law is presented to the jury" and "[t]he prosecutor's violation of section [1093.5] had the additional effect of violating [his] due process rights."
Even if the prosecutor violated section 1093.5, the error is only one of state law. As the United States Supreme Court has recognized, "a 'mere error of state law' is not a denial of [federal] due process. [Citation.]" (Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21.) "If the contrary were true, then 'every erroneous decision by a state court on state law would [be] a federal constitutional question.' [Citations.]" (Ibid.) Due process does not safeguard "the meticulous observance of state procedural prescriptions . . . ." (Rivera v. Illinois (2009) 556 U.S. 148, 158 ["Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution"]; cf. People v. Letner and Tobin (2010) 50 Cal.4th 99, 195 ["violation of section 190.9, subdivision (a)(1), by itself, did not deprive defendants of a 'liberty interest' under Hicks v. Oklahoma (1980) 447 U.S. 343"].)
"Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.)" (People v. Cortez (2016) 63 Cal.4th 101, 130.) Defendant has not shown that the prosecutor misstated any law or urged the jurors to acquiesce to higher judicial authority. He has not demonstrated that the prosecutor engaged in a pattern of egregious conduct resulting in a fundamentally unfair trial. (Cf. People v. Hill, supra, 17 Cal.4th at p. 815 [prosecutor's conduct "outrageous and pervasive"], 821 [prosecutor engaged in a "constant barrage" of "unethical conduct"], 845 [prosecutor engaged in "pervasive campaign to mislead the jury on key legal points" and "unceasing denigration of defense counsel before the jury"], 847 [cumulative impact of prosecutor's misconduct during the guilt and penalty phases of the trial and other errors deprived defendant of a fair trial].) Defendant has failed to establish that his trial was rendered fundamentally unfair and he was deprived of his right to due process.
10. Any State Law Error was Harmless
Even if we assume that defendant's claims of prosecutorial misconduct had been preserved, reversal is not required under state law. The prosecutor did not argue that the case law examples dictated the outcome of this case, and she explained how the evidence of the charged crimes supported her theory of the case. "Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. (People v. Lucas (1995) 12 Cal.4th 415, 473.) Whether the inferences the prosecutor draws are reasonable is for the jury to decide. (Id. at p. 474.)" (People v. Dennis (1998) 17 Cal.4th 468, 522.) The jurors in this case remained free to determine the reasonableness of the inferences that the prosecutor asked them to draw.
The court's instructions plainly explained to the jury what was and was not evidence. The trial court instructed: "Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." The court told the jurors: "It is up to all of you, and you alone, to decide what happened based only on the evidence that has been presented to you in this trial." The jury was repeatedly admonished that what attorneys say is not evidence.
The trial court also instructed: "You must follow the law as I explain it to you, even if you disagree with it. If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." During closing argument, the trial court told the jurors, "If anything [attorneys] say conflicts with my instructions on the law, you are to follow my instructions on the law." It also stated, "[W]hat the attorneys say is not evidence, nor is it the law. If there is a dispute between the attorneys and the court, you will follow the instruction of the court."
The trial court also instructed the jury regarding the presumption of innocence, the requirement that the People prove a defendant guilty beyond a reasonable doubt, and the definition of "proof beyond a reasonable doubt." The trial court explicitly told the jurors that they "must impartially compare and consider" the evidence and that they must find defendant not guilty "[u]nless the evidence proves the defendant is guilty beyond a reasonable doubt." The court instructed: "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence, and another to guilt, you must accept that one points to innocence."
Further, with respect to the charges of kidnapping to commit rape (§ 209, subd. (b)), the trial court told the jury that the prosecution had to prove, among other things, that defendant moved the victim "a substantial distance," which meant "more than a slight or trivial distance." The court indicated that the movement must have increased the risk of physical or psychological harm to the victim beyond that necessarily present in the rape. The court also directed the jury to "consider all the circumstances relating to the movement" of the victim in deciding whether the movement was sufficient to prove kidnapping for the purpose of rape (§ 209, subd (b)).
With respect to the One Strike kidnapping allegation (§ 667.61, subds. (a), (d)(2)) attached to count 2 (forcible rape), the trial court told the jury that the prosecution had to prove, among other things, that (1) defendant moved Y. a substantial distance, which meant "more than a slight or trivial distance," and that (2) "the movement of [Y.] substantially increased the risk of harm to her beyond that necessarily present in the crime of rape." It told the jurors that they "must consider all the circumstances relating to the movement" "[i]n deciding whether the distance was substantial and whether the movement substantially increased the risk of harm."
In the absence of contrary evidence, "jurors are presumed to understand, follow, and apply the instructions to the facts of the case before them. [Citation.]" (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) In addition, "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see People v. Gonzales (1990) 51 Cal.3d 1179, 1224, fn. 21 ["[J]uries generally understand that counsel's assertions are the 'statements of advocates.' "], superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 690-691.)
In this case, there was evidence that defendant forcibly grabbed each victim and moved her from McKee Road, near the 680 freeway overpass and the entrance to 680 south, into the bushes where he could assault them out of sight of other people, that the bushes in which Y. was raped were approximately 10 to 15 feet from the sidewalk and six feet tall, and that K. was grabbed in the same vicinity and manner as Y. Given the evidence and the court's instructions to the jury, it is not "reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the [alleged prosecutorial misconduct]." (People v. Watson (1956) 46 Cal.2d 818, 836.) C. Sentences Imposed on the Kidnapping to Commit Rape Convictions
Section 209, subdivision (b)(1), makes kidnapping to commit rape punishable "by imprisonment in the state prison for life with the possibility of parole." But the trial court sentenced defendant to a term of seven years to life on count 5. Defendant maintains that that sentence was unauthorized and must be corrected. The People agree.
"An appellate court may 'correct a sentence that is not authorized by law whenever the error comes to the attention of the court.' [Citation.]" (In re Harris (1993) 5 Cal.4th 813, 842.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (People v. Scott (1994) 9 Cal.4th 331, 354.) We conclude that the authorized sentence is life imprisonment with the possibility of parole and that the judgment must be modified to reflect that sentence.
DISPOSITION
The judgment is modified to reflect that the sentence imposed upon defendant's conviction of violating section 209, subdivision (b)(1), in count 5 is imprisonment in the state prison for life with the possibility of parole. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the modification.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
MIHARA, J.