Opinion
D057735
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. MAURICE MARLOW WOOLEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. FSB900794)
APPEAL from a judgment of the Superior Court of San Bernardino, Ronald M. Christianson, Judge. Affirmed.
I.
INTRODUCTION
During the prosecutor's rebuttal closing argument, after arguing that defense counsel had misrepresented the state of the evidence during his closing argument, the prosecutor stated, "[T]he only pimp in this courtroom is Mr. [defense counsel] as far as I'm concerned." Defense counsel objected, and the trial court admonished both counsel to refrain from making any "further personal attacks on each other." The prosecutor responded, "I apologize." Shortly thereafter, in discussing the reluctance of some women to report having been raped, the prosecutor stated, "[W]hen they do [report a rape] and they come into court and testify, they get raped again by the defense attorney. They get raped all over again." The prosecutor continued his argument, and, while discussing the hypothetical testimony of a rape victim concerning a violent rape, reiterated, "They get raped all over again."
On appeal, Wooley claims that the prosecutor committed misconduct in referring to defense counsel as a "pimp" and in suggesting that defense counsel had "raped" the alleged victims through his cross-examination. We conclude that the comments were entirely improper, had no place in the courtroom, and constituted prosecutorial misconduct. However, we further conclude that the misconduct does not require reversal under either the federal Constitution or California law. Accordingly, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural background
The People charged Wooley with committing a series of offenses against four women: Jackie (counts 1 through 4); Sheree (counts 5 though 10); Anita (counts 11 through 14); and Jane Doe 2 (counts 15 through 17). As to Jackie, the People charged Wooley with three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)) (counts 1, 2, and 3) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) (count 4). With respect to Sheree, the People charged Wooley with sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 5), three counts of forcible rape (§ 261, subd. (a)(2)) (counts 6, 7, and 8), sodomy by use of force (§ 286, subd. (c)(2)) (count 9), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 10). As to count 10, the People alleged that Wooley personally inflicted great bodily injury during the commission of the offense (§ 12022.7, subd. (a)). With respect to Anita, the People charged Wooley with sodomy by use of force (§ 286, subd. (c)(2)) (count 11), forcible rape (§ 261, subd. (a)(2)) (count 12), false imprisonment by violence (§ 236) (count 13), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 14). With respect to Jane Doe 2, the People charged Wooley with two counts of forcible rape (§ 261, subd. (a)(2)) (counts 15 and 16), and sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 17). The People also alleged that Wooley had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and two prior serious felony convictions (§ 667, subd. (a)(1)).
The information referred to each of the four women by the pseudonym, "Jane Doe," followed by a number, one through four. However, at trial, three of the four women allowed their first names to be used. For purposes of clarity, we refer to each woman as she was referred to at trial.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
A jury found Wooley guilty of two counts of forcible rape (§ 261, subd. (a)(2)) (counts 8 and 16), sodomy by use of force (§ 286, subd. (c)(2)) (count 9), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 10), and misdemeanor assault (§ 240) as a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 14). The jury also found true the great bodily injury allegation (§ 12022.7, subd. (a)) with respect to count 10. The jury found Wooley not guilty of counts 1 through 7, counts 11 through 13, count 15, and count 17. After the jury returned its verdicts, the trial court found the prior conviction allegations true.
Wooley filed a motion for a new trial, based in part on the remarks that the prosecutor made during closing argument, quoted in part I, ante. The People filed an opposition in which they conceded that the pimp comment was "inappropriate," but maintained that it was harmless. The People argued that the rape analogy was "totally warranted and in no way caused any prejudice to the defendant." The trial court held a hearing on the motion for new trial. After hearing argument from counsel, the trial court stated, "Certainly there were statements made during the closing arguments that can be construed as misconduct." However, the trial court ruled that there was "no chance that any misconduct, if it did occur, actually prejudiced Mr. Wooley." Accordingly, the trial court denied the motion for new trial.
The trial court proceeded to sentence Wooley to 80 years to life in prison, consisting of three consecutive terms of 25 year to life on counts 8, 9 and 16, pursuant to the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and an additional consecutive term of five years for the serious felony prior (§ 667, subd. (a)(1)). The court imposed a sentence of 180 days in jail on count 14 to be served concurrently with the other sentences, and stayed imposition of the sentence on count 10 pursuant to section 654. B. Factual background
1. The prosecution's evidence
a. Counts 1 through 4 (Jackie)
Jackie testified that on the night of November 11, 2008, she was walking down the street when Wooley grabbed her from behind. Jackie claimed that Wooley dragged her to a dirt lot, told her that he was going to rape her, and threatened to kill her if she resisted. Jackie stated that Wooley raped her while she was lying on her back. According to Jackie, Wooley then turned her on her stomach and raped her again. Jackie did not recall having told a police officer that Wooley had raped her a third time.
Jackie testified that she did not immediately call the police because she was scared. A few days after the incident, Jackie went to the hospital because her legs had become swollen. After Jackie told hospital personnel that she had been raped, a police officer came to the hospital to interview her. Jackie testified that she started to tell the officer about the alleged rape but became unsure whether she wanted "to press charges" because she thought that the officer was "acting . . . like [she] was lying."
San Bernardino Police Officer Andrew Leyva testified that he spoke with Jackie on November 15, 2008 at the hospital. According to Officer Leyva, Jackie told him that Wooley had raped her three times—twice while she was on her back, and once while she was on her stomach. Officer Leyva stated that Jackie would not provide many details about the alleged rape, that she appeared to be nervous, and that she refused to accompany him to the scene of the alleged crime.
On cross-examination, Jackie acknowledged that she had previously worked as a prostitute, but claimed that she was not working as a prostitute on the night in question.
As noted in part II.A., ante, the jury acquitted Wooley of all of the crimes allegedly committed against Jackie.
b. Counts 5 though 10 (Sheree)
Sheree testified that on October 25, 2008, Wooley approached her on the street and asked her for drugs. Sheree told Wooley that she knew where he could obtain some drugs, and took him to the home of one of her relatives, where she had been living. Sheree took Wooley inside the house. The relative was not home. There was no electricity in the house, and it was dark. Sheree claimed that shortly after they entered the house, Wooley attacked her by putting his arm around her neck and choking her.
According to Sheree, while Wooley was choking her, he said, "[B]itch, give me some pussy." The two struggled. Wooley punched Sheree in the face several times, and started to remove her clothes. Sheree said that Wooley then raped her "six [or] seven" times over an approximately three-hour period, ejaculating "six [or] seven" times. Sheree also claimed that Wooley put his penis in her rectum and removed a tampon from her vagina. After the attack, Sheree's eyes were swollen, and she could not see well. Sheree suffered several injuries to her face from the attack, and had to get stitches above one eye and on her lips.
Later that day, San Bernardino Police Officer Equino Thomas contacted Sheree at a neighborhood market. Officer Thomas testified that Sheree appeared to have been severely beaten. Her left eye was swollen shut, and she had a laceration above that eye. Sheree told Officer Thomas about the attack and rape. Officer Thomas contacted paramedics, who took Sheree to the hospital where she underwent a sexual assault examination. DNA taken from a vaginal swab obtained during the examination matched Wooley's DNA. A rectal swab was inconclusive.
On cross-examination, Sheree testified that she went to a friend's house after the incident. Sheree's friends took her to a phone booth and called the police.
On cross-examination, Sheree acknowledged that she had suffered prior convictions for prostitution, but denied that she was working as a prostitute on the night of the incident. On cross-examination, Officer Thomas testified that Sheree told him that Wooley had ejaculated three times during the attack.
As noted in part II.A., ante, with respect to the charged offenses pertaining to Sheree, the jury found Wooley guilty of one of three counts of forcible rape (§ 289, subd. (a)(1)) (count 8), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 10). The jury acquitted Wooley of two counts of forcible rape (§ 289, subd. (a)(1)) (counts 6 and 7), sexual penetration by a foreign object (count 5), and sodomy by use of force (§ 286, subd. (c)(2)) (count 9).
c. Counts 11 through 14 (Anita)
Anita testified that on the night December 1, 2008, she overheard Wooley asking Anita's friend, Nick, if he knew anyone who would like to make $20. Anita understood that Wooley was looking for a prostitute. Anita agreed to have sex with Wooley in exchange for $20. Anita went into an abandoned garage with Wooley. According to Anita, once the two were inside the garage, Wooley punched her in the face and told her that he was going to rape her. Anita stated that Wooley put her in a choke hold, and then placed his penis in her vagina and rectum several times. Anita estimated that the sexual assault lasted three or four hours. Anita claimed that she made several attempts to escape from the garage, but was unable to do so because Wooley grabbed her and prevented her from leaving. Anita stated that she was finally able to flee while Wooley went to the corner of the garage to urinate. Anita testified that she was naked when she initially fled the garage, and that she returned to retrieve her clothes after she determined that Wooley had left the area. After Anita got dressed, she ran to a liquor store and called the police.
At approximately 4:30 a.m. the following morning, San Bernardino Police Officer Francisco Gonzalez contacted Anita at a pay phone concerning the reported rape. Anita's sweater was torn. She was not wearing shoes, and her bottom lip appeared to be swollen. Anita told Officer Gonzalez that she had met Wooley at approximately 5:00
The record is unclear as to whether the alleged incident occurred on the evening of November 30 and early morning hours of December 1 or the evening of December 1 and early morning hours of December 2.
p.m. the prior evening, that the assault had begun at approximately 7:00 p.m., and that she had been able to flee the garage at approximately 4:30 a.m.
Anita was transported to the hospital where a nurse performed a sexual assault examination on her. Wooley's DNA was found on a swab taken from Anita's vagina. Wooley was excluded as a possible contributor of DNA found on a swab taken from Anita's rectum.
On cross-examination, Officer Gonzalez testified that Anita told him that Nick supplied her with crack. Defense counsel asked Officer Gonzalez whether Anita mentioned anything to him about a "prostitution deal." Officer Gonzalez responded that he did not recall Anita making any such statements. Officer Gonzalez also stated that Anita told him that she had put on her pants and sweater before fleeing the garage.
During cross-examination, Anita denied having told Officer Gonzalez that Nick supplied her with drugs.
As noted in part II.A., ante, with respect to the charged offenses pertaining to Anita, the jury found Wooley guilty of misdemeanor assault (§ 240) as a lesser included offense of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) (count 14). The jury acquitted Wooley of all of the remaining counts pertaining to Anita, including sodomy by use of force (§ 286, subd. (c)(2)) (count 11), forcible rape (§ 261, subd. (a)(2)) (count 12), and false imprisonment by violence (§ 236) (count 13).
d. Counts 15 through 17 (Jane Doe 2)
Jane Doe 2 testified that on the night of December 3, 2008, she met Wooley on the street. Wooley asked Jane Doe 2 if she wanted to smoke some drugs with him. Jane Doe 2 agreed, and the two went to a nearby abandoned house. Jane Doe 2 testified that after they were inside the garage of the abandoned house, Wooley grabbed her from behind and began to strangle her. According to Jane Doe 2, Wooley told her to bend over, and he placed his penis in her vagina. Jane Doe 2 stated that she attempted to break away three or four times, but that each time, Wooley grabbed her and put his penis inside her vagina. Finally, Jane Doe 2, who was naked, was able to break free and flee from the garage. As she fled the garage, Wooley attempted to grab her and pull her back into the garage.
When the prosecutor asked Jane Doe 2 whether she remembered Wooley doing anything else sexual to her, she replied, "No." The prosecutor then asked, "Do you remember if he put his fingers in your vagina at all?" Jane Doe 2 responded, "I think he did. Yeah."
At the same time, San Bernardino Police Officer Clifton Seevers was driving by the abandoned house in his marked patrol car. Officer Seevers saw Jane Doe 2, naked and on her hands and knees, crawling down the driveway of the house. Wooley was holding Jane Doe 2 by her legs and hips, attempting to drag her back into the garage. Officer Seevers could hear Jane Doe 2 screaming for help. As Officer Seevers was stopping his patrol car, Wooley ran away. Jane Doe 2 ran up to Officer Seevers and started screaming, "Help me, help me, he's going to kill me, he's going to kill me." Officer Seevers searched the area and found a jacket. In a pocket of the jacket, Officer Seevers found a wallet that contained Wooley's identification.
San Bernardino Police Officer Carlos Lariz responded to the scene and found Jane Doe 2 sitting on the curb, naked, "hysterical," and crying. Officer Lariz took Jane Doe 2 to the hospital for a sexual assault examination. Jane Doe 2 told the nurse that Wooley had penetrated her vagina with his finger and penis.
As Officer Lariz was driving back to the scene, he saw a male who fit Wooley's description. Officer Lariz detained Wooley and took him to the police station. Police
found Jane Doe 2's DNA on a penile swab taken from Wooley.
As noted in part II.A., ante, with respect to the charged offenses pertaining to Jane Doe 2, the jury found Wooley guilty of one of two counts of forcible rape (§ 261, subd. (a)(2)) (count 16). The jury found Wooley not guilty of one of the charged counts of forcible rape (§ 261, subd. (a)(2)) (count 15), and not guilty of sexual penetration by a foreign object (§ 289, subd. (a)(1)) (count 17).
2. The defense
Wooley testified in his own defense. Wooley acknowledged having had sex with each of the women, but claimed that each woman had engaged in a consensual act of prostitution with him. Specifically, with respect to Jackie, Wooley stated that she agreed to have sex with him for $20. According to Wooley, after the two had sex, Wooley told Jackie that he could not pay her immediately, and Jackie got angry and yelled at him. Wooley later saw Jackie on the street and called her a "whore." Jackie told Wooley that he had better pay her or she would tell the police that he was selling drugs.
Wooley claimed that Sheree had also agreed to have sex with him in exchange for money. Wooley claimed that he agreed to pay Sheree's pimp, Shorty, $10 worth of drugs and $20 in cash, in exchange for having sex with Sheree. Wooley stated that after he had sex with Sheree, he saw Shorty beat her up for smoking drugs that Wooley had given her.
Wooley testified that he arranged to have sex with Anita through her pimp, Nick. Wooley gave Nick $20. According to Wooley, after Wooley and Anita had vaginal and anal sex, Anita demanded an additional $20. When Wooley refused to pay, Anita grabbed at the back of his shirt and then fell on some wood, injuring her lip.
Wooley claimed that Jane Doe 2 agreed to have sex with him for either money or drugs. The two went into an abandoned house to have sex. According to Wooley, while they were having sex, Jane Doe 2 reached into his pocket, where he had some drugs. When Wooley accused her of stealing his drugs, Jane Doe 2 tried to flee. Wooley grabbed her by the arm and they both fell to the pavement. Jane Doe 2 dropped the bag that contained the drugs. Wooley was able to pick up the drugs and run away.
III.
DISCUSSION
A. The prosecutor committed clear misconduct by referring to defense counsel as a "pimp" and suggesting that defense counsel had "raped" the alleged victims again through his cross-examination
Wooley claims that the prosecutor committed misconduct in rebuttal closing argument by attacking the integrity of defense counsel, and suggesting that it was improper for defense counsel to vigorously cross-examine the alleged victims.
1. The prosecutor's rebuttal closing argument
The prosecutor began his rebuttal closing argument as follows:
"[The prosecutor]: After that [defense counsel's closing argument] I felt like I was sitting in a parallel universe. I guess we didn't see the same trial. I do take personal offense at some of the things [defense counsel] was saying, calling me a liar.
"[Defense counsel]: Your honor, I'm going to object. I didn't call the district attorney a liar.
"[The prosecutor]: Those aren't the words he used.
"The court: The attorneys get wide latitude in argument. And I will just remind the jury that you are going to decide what the facts are based on the evidence presented during the trial. If, during argument, either attorney misstates what they believe the evidence to be, you'll certainly take that into account in evaluating the argument that is made by either side.
"[The prosecutor]: [Defense counsel] told you that no sperm was found in Sheree's vaginal area. Said it didn't belong to the defendant. [Item] A-2 matches [item] A-7. Thirteen locations. Who's the liar? [¶] I don't like to get into this kind of stuff. I really feel attacked.
"[Defense counsel]: Your honor, misstates the evidence. That is a sperm fraction. That is not sperm that was tested. The jury could have that read back to them, but I just want to make that point.
"The court: Your argument is concluded. The jury will decide the case based on the evidence presented during the trial.
"[The prosecutor]: Sperm fraction means sperm. And it matches Mr. Wooley. So the only pimp in this courtroom is [defense counsel] as far as I'm concerned.
"[Defense counsel]: I'm going to object again.
"The court: Both counsel are admonished. I'm not going to allow any further personal attacks on each other.
"[The prosecutor]: I apologize. [¶] Sometimes I feel like no one takes responsibility for what happened to these women. Okay. It's amazing, it's utterly amazing why women do not report rape. You wonder why? You wonder why they don't report it? Because when they do and they come into court and testify, they get raped again by the defense attorney. They get raped all over again.
"They have to go over each account. Do you think they want to do that? Do you think it's fun for them to get up there and ask [sic] questions about a penis in their vagina, in their anus, fingers in their vagina? Getting beat up. Do you think they want to come in here and be subjected to that? They don't want to do that. They get raped all over again."
Later, the prosecutor argued, "I just ask that you look at these victims as human beings, not as street trash like the defense wants you to believe. It's funny how—." Defense counsel interjected, "Again your honor, object to the attack o[n] the defense counsel." The trial court overruled defense counsel's objection.
2. Governing law
" 'A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.' [Citation.] . . . ' "An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable." ' [Citations.]" (People v. Turner (2004) 34 Cal.4th 406, 429-430; accord People v. Sandoval (1992) 4 Cal.4th 155, 184 ["Personal attacks on opposing counsel are improper and irrelevant to the issues"].) Further, it is improper for a prosecutor to suggest that defense counsel's cross-examination of an alleged victim constitutes an improper attack. (People v. Turner (1983) 145 Cal.App.3d 658, 672 (Turner) disapproved on other grounds in People v. Majors (1998) 18 Cal.4th 385, 411 and People v. Newman (1999) 21 Cal.4th 413, 415.)
In Turner, supra, 145 Cal.App.3d 658, this court quoted the following portion of a prosecutor's closing argument in a rape case:
Although the Turner court did not expressly state that the prosecutor's comments came during closing argument, it implied as much. (See Turner, supra, 145 Cal.App.3d at p. 674.)
" 'Then, if that's not enough, [the victim] is brought to the District Attorney's Office where she tells the Deputy District Attorney what happened, another stranger. Then there is a preliminary hearing in front of a judge. Her attacker is there, an attorney for the attacker, and you can see what that's like being questioned by the attorney for your attacker. You've seen what that's like. That's not the end of it. Then there is a trial later on in front of a jury and alternates, total strangers who are all looking at her as she testifies. She tells about things that she doesn't want to remember which she feels ashamed of for no fault of herself, but that's the way society is; that's the way the crime is. Then she is attacked by a trained lawyer who's hired by the defendant. If after all of that credibility is questioned on the most insignificant details in the world, allegations are made that she's lying, that she's cheating her employer, that she's improperly got the position of a professional position that she's got, she has to put up with all of that.' " (Turner, supra, at p. 672.)
In evaluating the defendant's claim that the prosecutor committed prosecutorial misconduct by making this argument, the Turner court stated that the prosecutor had "overreacted when it included Turner's lawyer as an additional villain who was attacking the victim." (Turner, supra, 145 Cal.App.3d at p. 674.) The Turner court reasoned, "A criminal defense lawyer may properly attack a witness' credibility even though that witness is also the victim of the crime. The prosecutor, however, commits misconduct when, through careful use of words, he labels defense counsel as an additional attacker in a prosecution of a violent offense." (Ibid.; accord People v. Vance (2010) 188 Cal.App.4th 1182, 1201 [It is, of course, improper for the prosecutor 'to . . . portray defense counsel as the villain in the case. . . . Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.' " ' " (Citation.)].)
In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." [Citation.] When a claim of misconduct is based on the prosecutor's comments 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.' " [Citations.]' [Citation.]" (People v. Gonzales (2011) 51 Cal.4th 894, 920.)
3. Application
The prosecutor's statement that defense counsel was a "pimp" clearly constitutes casting an "aspersion[] on defense counsel" (People v. Turner, supra, 34 Cal.4th at p. 429), and was a wholly improper "[p]ersonal attack." (People v. Sandoval, supra, 4 Cal.4th at p. 184.) The trial court properly admonished the attorneys that the court would not "allow any further personal attacks."
Notwithstanding the trial court's admonishment, the prosecutor immediately proceeded to twice suggest that defense counsel had "raped" the victims by cross-examining them at trial. Defense counsel did not object to either statement. Despite defense counsel's failure to object to these remarks, because of the extraordinarily inflammatory nature of the prosecutor's comments, and in the interest of judicial economy, we exercise our discretion to consider the merits of Wooley's claim that these comments constituted misconduct. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1404 [addressing the merits of defendant's claims that prosecutor committed misconduct during closing argument notwithstanding lack of adequate objections "in the interests of judicial economy and to avert potential ineffective assistance of counsel claims"].)
In Turner, this court held that it was improper for a prosecutor to state during closing argument that a rape victim had been " 'attacked by a trained lawyer who's hired by the defendant.' " (Turner, supra, 145 Cal.App.3d at p. 672, italics omitted.) In this case, the prosecutor did not stop at suggesting that defense counsel had "attacked" the alleged victims, but expressly stated that rape victims are "raped" by defense attorneys at trial. There can be no question that the prosecutor's statements constituted misconduct. (Id. at p. 674 [a prosecutor commits misconduct during closing argument by "label[ing] defense counsel as an additional attacker in a prosecution of a violent offense"]; People v. Vance, supra, 188 Cal.App.4th at p. 1201, citations omitted [It is, of course, improper for the prosecutor 'to . . . portray defense counsel as the villain in the case' " ' "].)
As noted previously (see pt. III.A.1., ante), the prosecutor stated that victims of rape are reluctant to report a rape because "they get raped again by the defense attorney," and that rape victims do not want to testify in court because they "get raped all over again."
Accordingly, we emphatically reject the People's argument in their opposition to Wooley's motion for new trial that the rape analogy was "totally warranted."
Although Wooley notes that the prosecutor also stated, "I just ask that you look at these victims as human beings, not as street trash like the defense wants you to believe," Wooley does not specifically contend that this argument was improper. To the extent that Wooley maintains that this aspect of the prosecutor's argument constituted misconduct, we disagree.
During his closing argument, defense counsel repeatedly referred to the victims as prostitutes, and argued that they lived a lifestyle that the jury would be unable to understand. For example, defense counsel argued:
"We've got people out on the streets selling their bodies for twenty dollars. Selling themselves and going into these rat holes and having sex for twenty dollars. It's a lifestyle none of us are going to understand."
In light of defense counsel's statements, the prosecutor's comments in rebuttal constituted fair argument that the jury should disregard defense counsel's arguably degrading characterization of the alleged victims. (See People v. Redd (2010) 48 Cal.4th 691, 735.) [" '[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics . . . . [Citations.]' [Citation.]"].) Further, unlike the "pimp" and "rape[]" comments discussed in the text, the prosecutor's argument in this regard did not "attack[] the integrity of defense counsel, or casts aspersions on defense counsel." (Id. at p. 734.)
Accordingly, we conclude that the prosecutor committed misconduct by referring to defense counsel as a "pimp" and by suggesting that defense counsel had "raped" the alleged victims through his cross-examination of them. B. The prosecutor's misconduct does not require reversal of the judgment
In light of our conclusion that the prosecutor committed misconduct during closing argument, we must assess whether that misconduct requires reversal of the judgment.
1. Standard of prejudice
In People v. Letner and Tobin (2010) 50 Cal.4th 99, 169, the California Supreme Court outlined the well-established law governing whether prosecutorial misconduct requires reversal of a judgment under either California law or the federal constitution:
" 'Under California law, a prosecutor commits reversible misconduct if . . . it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant's invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " [Citation.]' [Citation.]"
2. Application
We consider first the prosecutor's "pimp" epithet. After defense counsel objected to the comment, the trial court admonished the attorneys that the court would "not . . . allow any further personal attacks on each other." The prosecutor responded to the court's admonishment by stating, "I apologize." The trial court properly characterized the prosecutor's comment as a "personal attack[]," and the prosecutor acknowledged the impropriety of the comment by immediately apologizing for the remark in front of the jury. The jury was therefore properly informed that the prosecutor's epithet was improper, and that it should disregard the comment. Under these circumstances, notwithstanding the crass nature of prosecutor's derogatory remark, there is no basis for reversing the judgment based on this comment pursuant to either California law or the federal Constitution. (See People v. Mendoza (2007) 42 Cal.4th 686, 701 ["the trial court sustained the defense objections and admonished the jury to disregard the comments; it is assumed the jury followed the admonishment and that prejudice was therefore avoided].")
Because defense counsel did not object to the prosecutor's comments that victims of rape "get raped" again by defense attorneys at trial, the trial court had no opportunity to admonish the jury to disregard the prosecutor's inflammatory characterization of the defense counsel's cross-examination of the alleged victims. However, the trial court did provide several instructions to the jury that served to diminish any potential prejudice from the prosecutor's remarks. To begin with, just after the prosecutor gave his rebuttal closing argument, and before providing final instructions to the jury, the trial court stated to the jury:
"Also, I just want to reiterate what comments I've made during some of the objections during argument. I've known Mr. [prosecutor] and Mr. [defense counsel] for many, many years. I can assure you that neither of them would ever intentionally misstate evidence to you. During the heated discussions that happen during argument, sometimes counsel might misstate something, but it certainly would not be done intentionally. [¶] You are the ultimate judges of what the facts are, and you will decide the facts based on the evidence presented during the course of the trial. And I will repeat that to you several times during the course of these instructions. Keep that in mind."
With this statement, the trial court properly instructed the jury to ignore any misstatements that the attorneys might have made during the "heated" closing arguments, and directed the jury to focus on evaluating the evidence presented at trial. (Cf. People v. Redd, supra, 48 Cal.4th at p. 735 [rejecting prosecutorial misconduct claim where prosecutor's comments "focused the jury upon the evidence rather than distracting it from its task"].) In addition, during its formal instructions to the jury, the trial court stated, "Do not let bias, sympathy, [or] prejudice . . . influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant or alleged victims . . . ." The court also instructed the jury, "You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. 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." These instructions also focused the jury on its task of impartially evaluating the evidence, and thereby further served to lessen any potential prejudice stemming from the prosecutor's improper condemnation of Wooley's exercise of his right to confront adverse witnesses.
Further, even assuming that Wooley is correct that the prosecutor's rape comments constituted "a plain invitation to the jury to disregard and disbelieve the defense because of the actions of counsel in asserting that defense, rather than based on the evidence," the record indicates that the jury declined to do so, and instead, carefully considered the evidence presented at trial. Far from blindly accepting the validity of the testimony of the alleged victims, the jury requested, and received, read backs of the testimony of three of the four alleged victims. Further, even assuming that Wooley is correct that the prosecutor's rape analogy "implied the victims should be given the benefit of the doubt," there is no indication that the jury in fact gave the victims such a benefit. The prosecutor provided the improper rape analogy in an apparent attempt to bolster the credibility of the complaining witnesses by arguing that victims of rape are reluctant to report a rape and to testify in court. However, the jury acquitted Wooley of 12 of the 17 charged offenses (counts 1 through 7, 11 through 13, 15, and 17), and acquitted Wooley of all of the offense against Jackie (counts 1 through 4), the one victim who had delayed reporting the alleged rape to law enforcement. Thus, the jury acquitted Wooley of all of the offenses that involved the alleged victim as to whom the prosecutor's misconduct had the greatest potential for prejudice.
The jury requested and received read backs of the testimony of Jackie, Sheree, and Jane Doe 2.
If the prosecutor had made this argument without the inflammatory rape analogy, he would have committed no misconduct. (See Turner, supra, 145 Cal.App.3d at p. 673 ["We have no quarrel with the prosecutor's theory that it was necessary for him to buttress Ms. B.'s credibility by explaining the rigors through which she had to proceed, starting with the indignity of the offenses and continuing through the numerous judicial proceedings"].)
The record also is clear that the misconduct (all of which occurred during rebuttal closing argument) was linked to the prosecutor's inability to control his emotions during the heat of closing arguments. Just prior to drawing the improper rape analogy, the prosecutor referred to defense counsel as a "pimp," and stated both that he took "personal offense at some of the things [defense counsel] was saying," and that he "really fe[lt] attacked." Without condoning the prosecutor's lack of professionalism, in assessing prejudice, the context of the prosecutor's remarks support the conclusion that the jury likely viewed the prosecutor's comments that rape victims are "raped" again at trial as nothing more than intemperate overstatements offered in the heat of rebuttal argument.
Further, the prosecutor did not misstate the evidence or the law, but rather, made an inappropriate analogy concerning the cross-examination of alleged rape victims. Fortunately, however, far from being consumed by the prosecutor's inflammatory suggestion that cross-examination was equivalent to the act of rape, as noted above, the jury manifested an awareness of its duty to carefully weigh all of the testimony presented at trial by requesting numerous read backs of the alleged victims' testimony. (Cf. People v. Gay (2008) 42 Cal.4th 1195, 1227 [considering jury's request for read back of testimony in assessing whether instructional error was prejudicial].) The context and nature of the prosecutor's remarks, combined with this indication that the jury was not consumed by the inflammatory nature of remarks, suggests that the jury likely viewed the prosecutor's rape analogy as mere hyberbole. (See People v. Sandoval, supra, 4 Cal.4th at p. 184 [concluding prosecutor's closing argument, which was improper in "denigrating counsel instead of the evidence," was harmless because the remarks were "a small part of the prosecutor's very lengthy review of the evidence presented," and "were clearly recognizable as an advocate's hyperbole"].)
Accordingly, after considering the whole record in the case, we conclude that the prosecutor's improper comments made during closing argument, whether considered alone or cumulatively, did not constitute reversible misconduct under either California law or the federal Constitution. (Accord Turner, supra, 145 Cal.App.3d at pp. 674 [concluding that prosecutor's misconduct, including labeling "defense counsel as an additional attacker in a prosecution of a violent offense," was harmless beyond a reasonable doubt].)
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.