Opinion
A156286
05-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE CLAUDIO MUNOZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-170188-7)
Defendant Jose Claudio Munoz was convicted of first degree murder and child abuse. On appeal, he contends the prosecutor committed four instances of misconduct during her closing argument, which deprived him of a fair trial. We disagree and affirm the judgment.
I. BACKGROUND
A. Statement of Facts
The victim and defendant were married with one child. They resided with the victim's parents. On the day of the incident, the victim's brother-in-law dropped off his children with the victim. When he returned to pick them up in the afternoon, only his children, the victim, defendant, and their child, were present. The brother-in-law testified defendant did not greet him and was speaking loudly and angrily at the end of the hallway. He further testified the victim appeared "a bit sad."
About half an hour after the brother-in-law picked up his children, defendant called 911. Defendant informed 911 his wife had been shot. Upon being asked if the shooter was present, defendant stated, "I'm doin' a confession. I—I shot my wife." He further stated, "I have my son with me. I'm—I know she's been cheating on me. I'm okay." Another call was made to 911 around the same time from the victim's phone. A child was crying in the background and a woman informed the operator she had been shot.
Police responded to the home and found defendant outside the house with his child, who was crying and "visibly upset." The minor informed the police, "Mommy is dead." When the police entered the home, they saw the victim "slumped over" on the floor with two bullet wounds. The police observed no signs of a struggle. A forensic pathologist concluded both gunshots were fired from a distance of more than 18 inches, and the paths of the two gunshot wounds were at opposite angles, indicating either the victim or the shooter changed positions between the two shots. The police attempted CPR but were unable to revive the victim.
Following a search of the house, the police located a gun underneath the bed and a backpack containing a pistol magazine and an identification card for defendant. In the closet of that same room the police located an empty firearm case and two boxes of ammunition, neither of which were full. Subsequent testing indicated the gun located under the bed had fired the cartridge cases found by the victim's body.
Defendant acknowledged a history of domestic violence between him and the victim. He stated that a few weeks prior to the incident, he got into a fight with the victim and struck her in the face.
Data extracted from defendant's and the victim's phones indicated defendant texted the victim from August 26 to September 4, 2015, accusing her of cheating on him. On September 3, the victim sought to end the relationship and asked defendant to move out of the house. On September 10, the date of the shooting, defendant called the victim eight times in a six-hour span. The victim had a contact in her phone as "my love" that was not associated with defendant's phone, but she had no contact with that number since May and there were no texts found on her phone that appeared to be from a romantic interest. B. Procedural Background
Defendant was charged by information with murder (Pen. Code, § 187, subd. (a); count 1) and child abuse (§ 273a, subd. (a); count 2). As to count 1, the information alleged that defendant personally discharged a firearm resulting in great bodily injury and death (§ 12022.53, subd. (d)), and in count 2, that he used a firearm in the commission of the offense (§ 12022.5, subd. (a)).
All statutory references are to the Penal Code.
During trial, the prosecution introduced evidence of prior acts of violence by defendant toward the victim. The victim's mother testified that approximately four years before the incident, defendant had refused to allow the victim out of a car and told her he would kill her. A year or two before the incident, the victim's sister testified, she saw defendant push his body weight on the victim and yell, "What? What are you gonna do? What are you gonna do?" She further testified defendant appeared very mad, and she later noticed the lock on the front door had been newly broken. The victim's cousin testified that about a month before the incident, she was driving with the victim, and the victim received an "excessive" number of telephone calls during which the victim stated where she was, what she was doing, and who she was with. The cousin believed defendant was driving on the same freeway as them because of a comment about her car. A few weeks before the incident, the victim's mother saw the victim with an injury to her nose, and later observed the victim's glasses broken "right in the middle."
In 2018, a jury convicted defendant of both counts and found all the special allegations true. The court sentenced defendant to 50 years to life in prison. Defendant timely appealed.
II. DISCUSSION
Defendant contends the prosecutor committed misconduct during her closing argument by (1) commenting on legislative intent in allowing uncharged domestic violence evidence; (2) providing an improper voluntary manslaughter example and opining that infidelity does not justify voluntary manslaughter; and (3) commenting on the " 'cycle of violence' " characteristic of domestic violence relationships. He contends these errors were prejudicial and deprived him of a fair trial. A. Applicable Law
Prosecutors have wide latitude during closing arguments to argue their cases vigorously and to discuss and draw fair inferences from the evidence presented at trial. (People v. Stanley (2006) 39 Cal.4th 913, 951 (Stanley); People v. Fields (1983) 35 Cal.3d 329, 363.) However, a prosecutor commits misconduct when he or she uses deceptive or reprehensible methods to persuade the jury. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1238 (Hajek), abrogated on other grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Strickland (1974) 11 Cal.3d 946, 955 (Strickland).)
" ' "When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated." ' [Citations.] ' "Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." [Citation.]' [Citation.] Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected." (People v. Shazier (2014) 60 Cal.4th 109, 127.)
Where, as here, a 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." (People v. Woods (2006) 146 Cal.App.4th 106, 111.) "No misconduct exists if a juror would have taken the statement to state or imply nothing harmful." (Ibid.) The ultimate question the court must decide when a defendant asserts that the prosecutor committed misconduct is whether it is reasonably probable that a result more favorable to the defendant would have occurred absent the disputed conduct. (Strickland, supra, 11 Cal.3d at p. 955.) B. Allegations of Prosecutorial Misconduct
For the reasons set forth below, we conclude the prosecutor did not commit misconduct with the exception of one statement, that misconduct was harmless, and, even if any of the other statements were misconduct, the cumulative effect of any such misconduct was harmless.
1. Legislative Intent
a. Relevant facts
During the prosecutor's closing statement, in which she addressed the evidence of prior domestic violence, the following exchange occurred:
"[Prosecutor:] You also heard evidence about prior domestic violence. And the reason that we instructed you—or you got to hear evidence about that, it's actually unusual in a criminal case. Usually you do not hear about other bad things that somebody has done. You're only to determine what happened on this day.
"[Defense counsel]: Objection. Improper argument.
"The Court: I've provided the jury with instructions on how the prior domestic violence evidence can be used, so you're limited to using it for those purposes.
"[Prosecutor]: The legislature determined that because domestic violence is a crime that usually occurs in secret, people don't always find out about it. And because it is a pattern crime that tends to repeat itself, that when you have a person who is on trial with a case involving domestic violence and you have evidence of other prior domestic violence, you can consider that to determine if the defendant has a propensity for violence towards the victim. [¶] And basically, what I've heard people say is if you don't know a horse, look at its track record. And that's what we're saying in this case. We've just met [defendant]. What do we know about him?"
Defense counsel did not raise any other objections. However, the following day defense counsel submitted written objections to various parts of the prosecutor's closing statement. In discussing those objections, defense counsel stated "referencing the legislative intent of passing a law . . . is nothing that was in evidence nor is it anything which common jurors would be aware. And so I think that was clearly improper." In response, the court ruled: "It is a close call whether it's within the realm of common knowledge that the legislature carved out these exceptions, but I hear those arguments quite frequently in trials, that, you know, this is how the—this particular evidence provision works. I don't think it is beyond the realm of fair argument and so I don't find it to be prosecutorial misconduct."
b. Analysis
Defendant contends the prosecutor's reference to legislative intent constituted error because there was no evidentiary support regarding such intent. We agree. No evidence supports the prosecutor's statement as to what "[t]he legislature determined." However, this error is harmless.
"In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner." (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) A judgment of conviction will be reversed based on prosecutorial misconduct "only when, after reviewing the totality of the evidence, we can determine it is reasonably probable that a result more favorable to a defendant would have occurred absent the misconduct." (People v. Castillo (2008) 168 Cal.App.4th 364, 386.) Here, the problematic comment constituted one sentence of a 52-page closing argument. The prosecutor then correctly informed the jury that evidence was introduced about prior acts of domestic violence and the jury could consider that evidence to "determine if the defendant has a propensity for violence towards the victim." This statement aligned with the trial court's jury instructions on CALCRIM No. 375 (stating prior domestic violence evidence may be used "for the limited purpose of determining whether the defendant had a propensity to commit domestic violence") and CALCRIM No. 852 ("if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence," the jury "may, but [is] not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit First Degree Murder, as charged in Count 1").
The prosecutor's comment was so brief and fleeting that we do not believe it could have been negatively applied by the jury or that a more favorable result would have occurred absent the misconduct. (See People v. Kipp (2001) 26 Cal.4th 1100, 1130 [an improper brief and mild comment by the prosecutor in closing argument is harmless error].) Moreover, the trial court instructed the jury, in response to defense counsel's objection, to follow the court's instructions on how to consider and use prior domestic violence evidence. Barring evidence to the contrary, we assume the jury followed the court's instructions. (People v. Morales (2001) 25 Cal.4th 34, 47 ["we presume that the jury relied on the instructions, not the arguments, in convicting defendant"].) Accordingly, it is not reasonably probable that a result more favorable to defendant would have occurred absent the misconduct.
2. Voluntary Manslaughter Statements
a. Relevant facts
During the prosecutor's closing statement, she discussed the difference between murder and voluntary manslaughter. She stated voluntary manslaughter "requires that the defendant was provoked. Importantly, by the victim." The prosecutor then set forth "an example of what a voluntary manslaughter would entail." The prosecutor described a scenario in which a mother and toddler were playing in front of their house, and a driver was speeding up and down the street and refused to slow down after multiple requests.
Defense counsel interrupted the example and objected. In response, the court informed the jury: "[T]he law that I read to you is what you'll get in the instruction. Counsel can argue how it applies and give examples of it, but the law that I give you is the one that controls, but I'll permit the example."
The prosecutor then continued with her example, stating the driver hit the toddler when the child went into the street to retrieve a ball, and the mother killed the driver when he stopped to apologize. The prosecutor concluded by stating, "[T]hat's the level of provocation that we are talking about," before being interrupted by another objection.
In response to this second objection, the court again clarified, "[T]he definition of provocation is the definition I gave you in the jury instructions. That's the one that controls."
The prosecutor argued there was no evidence the victim provoked defendant. The prosecutor specifically noted there was no evidence the victim was cheating on defendant and defendant had made such allegations for weeks prior to the incident.
Defense counsel, during his closing statement, informed the jury the "ultimate question" is whether the prosecution proved "beyond and to the exclusion of each and every reasonable doubt that [defendant] was not acting under the heat of passion or because of a sudden quarrel when he killed [the victim]." Defense counsel then argued defendant was provoked because of the victim's cheating, stating: "When you know that your wife has been cheating on you, of course you're going to act rashly and under the influence of intense emotion. And the provocation would have caused an average person to act rashly and without due deliberation."
On rebuttal, the prosecutor responded to defense counsel's argument. She first noted no evidence demonstrated the victim was cheating. The prosecutor then stated: "[E]ven if there was cheating, it has be a standard that we as a society are willing to recognize, that it is such a level that any person would act so rashly and throw all caution to the wind. [¶] And in this day and age, I do not agree that cheating meets that standard. We have—it is upsetting, absolutely. That's why we have divorce courts. It happens. It's not to be rewarded, but is it something that [sic] better to say is so upsetting that any person would lose all sense of reason? I don't think so."
Defense counsel objected on the basis the instruction "says nothing about losing all sense of reason." The court then informed the jury: "I have instructed you on the law. You'll have written copies of the articulation of the standard, whether a reasonable person would act under the heat of passion. It's articulated specifically. So follow the written instructions and—you know, every time you phrase it it comes out slightly differently but I don't think it's inconsistent with the instruction."
The prosecutor continued her rebuttal argument by noting numerous television shows were based around the premise of infidelity and commenting: "So as a society, these are things that are in our entertainment field. They're not things that we're accepting that people are going to lose complete judgment and act so rashly. Otherwise, we would not have these shows on air."
b. Analysis
Defendant contends the young mother example undermined the jury's understanding of provocation and replaced it with a "bar . . . so high that [defendant] could not meet it." Defendant further contends the young mother example was reaffirmed by the prosecutor's statements that infidelity does not meet the standard for provocation.
The Attorney General contends defendant forfeited this argument by failing to specifically object to the statement that the prosecutor did not accept that infidelity met the standard of provocation. We disagree. While defense counsel did not specifically object to that sentence, he objected to the line of argument that included the disputed statement.
The trial court did not err in allowing the prosecutor to give the young mother example, while reminding the jury to follow the court's instructions. The prosecutor did not suggest her example provided the only basis for provocation or set the standard for provocation, merely that it was an example of what could constitute voluntary manslaughter. Defendant does not dispute the example constituted voluntary manslaughter, but argues the example presented an extreme situation. He cites no authority for the proposition that only ambiguous examples of voluntary manslaughter may be presented. Nor does the record reflect the example inflamed the jury's passions, as he suggests. The relevance of the example was an issue defense counsel was able to—and did—address in his closing statement. There is no reasonable possibility the jury construed or applied the prosecutor's example in an objectionable manner. (See People v. Cunningham, supra, 25 Cal.4th at p. 1019.)
More challenging, however, are the prosecutor's comments that "even if there was cheating, it has to be a standard that we as a society are willing to recognize, that it is such a level that any person would act so rashly and throw all caution to the wind. [¶] And in this day and age, I do not agree that cheating meets that standard." Generally, it is improper for a prosecutor to express his or her personal belief if "the jury will view the comments as based on information other than evidence adduced at trial." (People v. Mincey (1992) 2 Cal.4th 408, 447.) However, counsel may fairly comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Ward (2005) 36 Cal.4th 186, 215; People v. Lewis (1990) 50 Cal.3d 262, 283 [explaining that a prosecutor "has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper"]; People v. Willard (1907) 150 Cal. 543, 552 ["Counsel have a right to present to the jury their views of the proper deductions or inferences which the facts warrant. Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel."].)
In the context of the prosecutor's rebuttal, her statement appears to directly respond to defense counsel's closing, in which he repeatedly argued cheating "would have caused an average person to act rashly and without due deliberation." Immediately prior to the statement, the prosecutor recounted the lack of evidence of cheating—i.e., no suspicious text messages, no calls in the months prior to the incident, and no admission of cheating. The prosecutor then disputed defense counsel's conclusion by stating, "I do not agree that cheating" would cause "any person [to] act so rashly and throw all caution to the wind." She then noted how infidelity is a premise of many television shows and argued: "They're not things that we're accepting that people are going to lose complete judgment and act so rashly. Otherwise, we would not have these shows on air." In this context, her statement represents a reasonable argument as to what conclusions the prosecution believes is proper from the evidence.
However, even if we presumed the statement was improper, we find any such misconduct harmless. " '[A]rguments of counsel "generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." ' " (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268; accord People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37 [concluding prosecutor's closing argument that misstated reasonable doubt standard constituted harmless error where trial court properly instructed the jury on reasonable doubt standard].) The court repeatedly reminded the jury to follow the court's instructions on the law, and it properly instructed the jury on the applicable law for provocation and voluntary manslaughter. The court also informed the jury during the course of closing arguments that "what counsel says is not evidence" and instructed the jury, "Nothing that the attorneys say is evidence." We presume the jury followed these instructions absent evidence to the contrary. (People v. Morales, supra, 25 Cal.4th at p. 47.)
We conclude it is not reasonably probable that the jury interpreted the example and the prosecutor's statement, either separately or together, in an objectionable manner. Nor is it reasonably probable that a result more favorable to defendant would have occurred absent any alleged misconduct, particularly given the strength of the evidence that the victim denied having an affair, the record did not contain any evidence of an affair, and defendant and the victim had been arguing about the alleged affair for weeks prior to the incident.
3. Cycle of Violence
a. Relevant facts
In arguing to the jury that the evidence demonstrated premeditation and deliberation, the prosecutor recounted various exchanges between defendant and the victim prior to the incident. The prosecutor first discussed a fight between defendant and the victim, which resulted in defendant hitting the victim in the face and an exchange of angry text messages. Those text messages culminated with the victim asking defendant about his plans to move out and stating she does not want to be with him.
The prosecutor then noted, shortly after that exchange: "[W]e see a classic move with a domestic violence relationship. He's extraordinarily apologetic. He says, 'Good morning, Mija. My love. My one and only. I'm so extremely sorry for all of my mistakes I've made, that words can't even explain. . . .' " The prosecutor then read to the jury various text messages between defendant and the victim over the following week indicating how defendant and the victim began to make amends and subsequently reverted to anger. The prosecutor explained the importance of these messages: "[T]he buildup is important because what we see is that, one, this was not a sudden thing that came up. It had been weeks. The defendant had been stewing on this. And festering. And getting more and more angry."
Defense counsel did not object at any point during this portion of the argument.
b. Analysis
"To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) Failure to object or seek an admonition results in forfeiture. (Ibid.) Here, defendant failed to object and thus did not preserve this argument for appeal.
Defendant contends further objections would have been futile because the court "immediately overruled all the defense objections." However, the record belies this allegation. For example, defense counsel made three objections to examples raised by the prosecutor in her closing statement. While the court allowed the examples, it provided clarifying instructions to the jury after each objection. In response to another objection regarding prior domestic violence evidence, the court informed counsel that she was "limited to using [prior domestic violence evidence] for those purposes [provided in the jury instructions]." Following another objection regarding improper argument and lack of evidence, the court provided another clarification to the jury that they are "the fact finders so you decide what the evidence has shown. And if anything the attorneys say is not consistent with your findings, it's your findings that control." A similar objection resulted in the court providing a lengthy clarification, informing the jury they were "entirely in control" of deciding the facts and any inferences therefrom, and a reminder that "what counsel says is not evidence." In connection with an objection to a PowerPoint slide, the court and prosecutor agreed with defense counsel's objection. The prosecutor agreed to remove the slide and not reference it, and the court offered to issue an admonition if defense counsel desired. The court also agreed with another of defense counsel's objections, corrected the prosecutor's statement of the law, and stated he would provide the jury with an additional instruction to clarify the law on voluntary manslaughter. These examples demonstrate the court thoughtfully considered and addressed defense counsel's objections at each instance. The record does not reflect a single instance in which the court merely overruled defense counsel's objection. Accordingly, we reject defendant's argument that any objection would have been futile.
Defendant also contends counsel did not object because he "did not want to give further weight to the improper arguments." But defense counsel raised objections throughout the prosecutor's argument, including after this disputed argument. --------
Defendant alternatively argues his counsel was ineffective for failing to object. " 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] Defendant advances that claim here. He bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674.) In order to demonstrate prejudice, "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694.)
" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' [Citation.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission. [Citations.]' [Citation.] '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . . .' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence' [citation]." (People v. Centeno, supra, 60 Cal.4th at pp. 674-675.)
Here, defendant has failed to demonstrate a reasonable probability that the outcome of his trial would have been different absent his counsel's failure to object. The prosecutor did not make any argument regarding the cycle of violence. Instead, she mentioned that defendant's apologetic text message following his physical and verbal abuse was "a classic move with a domestic violence relationship." The prosecutor did not elaborate on this statement. Rather, she then read various text messages between defendant and the victim leading up to the incident, noting they were first amiable and then increasingly hostile. Her comments were tied directly to the evidence in the record regarding the victim's tumultuous relationship with defendant. The statement was consistent with the trial testimony and did not impliedly refer to any facts or evidence outside the record. (People v. Ward, supra, 36 Cal.4th at p. 215 [counsel may fairly comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom].) In light of the court's reminders to the jury that closing arguments are not evidence and the prosecutor's focus on the evidence, defense counsel was not ineffective by failing to object.
4. Cumulative Error
Finally, defendant contends the cumulative effect of the errors in his case require reversal of the judgment. " 'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence." ' [Citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." ' " (People v. Mireles (2018) 21 Cal.App.5th 237, 249.)
Any errors in this case were relatively minor and were not prejudicial. Moreover, the evidence against defendant was strong. It is not reasonably probable that the result would have been different had there been no error. (People v. Mireles, supra, 21 Cal.App.5th at p. 249.) Defendant received due process and a fair trial, and we accordingly reject his claim of cumulative error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P. J. We concur: /s/_________
Banke, J. /s/_________
Sanchez, J.