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People v. Hill

California Court of Appeals, Second District, Fifth Division
Jun 6, 2007
No. B188141 (Cal. Ct. App. Jun. 6, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JULIAN G. HILL, Defendant and Appellant. B188141 California Court of Appeal, Second District, Fifth Division June 6, 2007

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA280415, Anita H. Dymant, Judge. Affirmed as modified.

John P. Dwyer, Dwyer & Biggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

TURNER, P. J.

I. INTRODUCTION

Defendant, Julian G. Hill, appeals from his false imprisonment by violence conviction by a jury (Pen. Code, § 236) and the trial court’s finding that he was previously convicted of three serious felonies and served three prior prison terms. (§§ 667, subd. (b)-(i), 667.5, subd. (b), 1170.12.) Defendant argues: the trial court improperly failed to instruct on the lesser included offense of misdemeanor false imprisonment; he was denied his right to an impartial jury; and, the prosecutor committed misconduct. We reject these contentions but modify the fines imposed.

All further statutory references are to the Penal Code unless otherwise indicated.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On April 2, 2004, eleven-year-old R. G. attended an after-school program at a local school. R. G. asked Rene Alvarez, a staff member, for permission to use the faculty bathroom. The bathroom had one door, a single toilet, and a sink. R. G. stopped at the drinking fountain for water before entering the bathroom. There was no one in the bathroom when R. G. entered and closed the door behind her. At trial, R. G. could not remember whether she locked the bathroom door. After R. G. had used the bathroom, someone knocked on the door. R. G. responded, “‘Hold on.’” Thereafter, defendant walked into the bathroom. Defendant locked the bathroom door by using the latch. R. G. heard a boy say, “‘There’s a man and a girl in the bathroom.’” Defendant said, “‘I have to use the bathroom.’” Thereafter, R. G. said, “‘Can I get out[?]’” Defendant responded, “‘No.’” As R. G. attempted to leave, defendant closed the door. The door hit R. G.’s head and face. R. G. heard the janitor’s keys as defendant attempted to lock the door. R. G. went to the corner of the bathroom. Defendant told her, “‘Come here[.]’” After R. G. moved closer, defendant pulled down R. G.’s pants and underwear. R. G. began to scream. Defendant covered R. G.’s mouth and tried to kiss her. Defendant placed three fingers inside R. G.’s “private part.” Defendant was in front of R. G. on his knees. R. G. was screaming and crying when defendant had his fingers in her privates. Defendant told R. G. to pull her pants up. R. G. also heard Mr. Alvarez’s voice. Mr. Alvarez said, “‘Open the door.’” About two minutes later, defendant told R. G. to shut up. Thereafter, defendant unlocked the door.

The victim’s name is abbreviated to protect her identity.

Once the door was open, R. G. walked out ahead of defendant and went to Maria Torres, a playground supervisor at the elementary school. R. G. began crying. R. G. said she was scared. R. G. then joined her friends, who took her to the school office. R. G. spoke to a female police officer later that afternoon. R. G. was examined at a hospital after she spoke to the police. R. G. recalled her prior testimony that Mr. Alvarez had walked her to the bathroom. However, she was confused at that time because she had never been in a courtroom and was scared. R. G. still thought about what happened to her when defendant touched her. These thoughts made R. G. mad. R. G. also had nightmares about the incident.

Mr. Alvarez was a playground supervisor at a local school on April 2, 2004. Mr. Alvarez knew R. G. as an after school participant. Only the staff bathroom was available for use by those in the after school program. While supervising a group of children, Mr. Alvarez heard a scream and a door “shut hard.” Mr. Alvarez testified the children said, “‘There’s a man just ran in with the little girl.’” Mr. Alvarez directed the other children to walk toward another playground supervisor. Mr. Alvarez knocked on the door and asked, “‘Who’s in there?’” No one answered. Mr. Alvarez attempted to open the door by turning the doorknob. However, someone pulled the door closed and locked it from inside. Mr. Alvarez hit the door hard and then called for other adults to assist. Ms. Torres and Mr. Tyson came to the restroom door. Ms. Torres said, “‘Come out, come out, we need to know what is going on.’” Approximately four minutes had elapsed since Mr. Alvarez had first approached the restroom door.

Shortly thereafter, the door opened. R. G. ran out to Ms. Torres’s arms. R. G. was crying. R. G. said, “‘He touched me.’” Ms. Torres directed another girl to take R. G. to the office. Defendant came out of the restroom immediately after R. G. Defendant told Mr. Alvarez: “‘She hurt her head. I was giving her medical assistance.’” Mr. Alvarez told defendant to remain at the school while the police were summoned. Defendant began walking in circles. Defendant realized Mr. Alvarez was calling the police on a cellular phone. Defendant then said: “‘I didn’t do nothing, you know. She hurt her head.’” Defendant then walked toward the parking lot. Mr. Alvarez and other staff members followed him. They instructed defendant not to leave the school grounds. When the police arrived, defendant was approximately 70 yards from the school parking lot. Mr. Alvarez and the staff pointed defendant out to the police, who was immediately detained. Mr. Alvarez had never seen defendant before this incident. Although Mr. Alvarez did not unlock the bathroom door for R. G. on April 2, 2004, he may have on other occasions when it was inadvertently locked by other staff.

At 4 p.m. on April 2, 2004, Ms. Torres was supervising a group of children, including R. G. R. G. said she was going to the bathroom. Ms. Torres did not actually see R. G. enter the restroom. However, Mr. Alvarez later screamed, “‘Maria, Maria.’” Mr. Alvarez was standing outside the staff bathroom. When Ms. Torres came to the bathroom, Mr. Alvarez was knocking on the door saying: “‘Open the door. Who is in there.’” Mr. Alvarez told Ms. Torres that there was a man in the bathroom. Ms. Torres heard R. G. screaming. It sounded as though someone was covering R. G.’s mouth. When the restroom door finally opened, R. G. ran toward Ms. Torres. R. G. appeared to be frightened, was crying, and shook up. R. G. said defendant had touched her and hurt her head. Defendant came out of the restroom immediately thereafter. Ms. Torres gave instructions that R. G. should be taken to the school office. When Ms. Torres asked defendant what had happened, he became “very mad.” Defendant repeatedly stated that he did not do anything.

Julie Lister was a nurse practitioner at the Violence Intervention Program at the University of Southern California medical center who testified for the prosecution. Ms. Lister was certified as a sexual assault nurse practitioner. Ms. Lister had performed in excess of 4,000 sexual assault examinations. Ms. Lister reviewed a videotape of the sexual assault examination performed on R. G. on April 2, 2004, as well as the Office of Criminal Justice Planning report prepared in conjunction with that exam. Ms. Lister formed the opinion that her findings differed from those of the examining nurse. Ms. Lister believed that the superficial tear to the external part of R. G.’s genital area occurred during the examination. Ms. Lister did not observe any trauma or injuries to the genital or anal area. Ms. Lister noted that even if fingers had been inserted in R. G.’s private part, there is usually no trauma with such touching unless a finger is jabbed forcefully. In addition, estrogen provides some protection from injury to the genital area. There was no evidence of injury to R. G.’s hymen. In a hypothetical situation where an individual kneels before a child and extends his three fingers forward to her genital area, the fingers would not penetrate the genital area. The contact would probably be external to the vaginal canal.

III. DISCUSSION

A. Lesser Included Offense Instruction

Defendant argues that the trial court improperly failed to instruct the jury sua sponte on the lesser-included offense of misdemeanor false imprisonment. A trial court is obliged to instruct, even without a request, on the general principles of law which relate to the issues presented by the evidence. (§§ 1093, subd. (f), 1127; People v. Ledesma (2006) 39 Cal.4th 641, 715; People v. Wims (1995) 10 Cal.4th 293, 303; People v. Turner (1990) 50 Cal.3d 668, 690; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) When the evidence is minimal and insubstantial, there is no duty to instruct. (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5; People v. Bunyard (1988) 45 Cal.3d 1189, 1232; People v. Flannel, supra, 25 Cal.3d at p. 684.) The California Supreme Court has held: “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162, quoting People v. Flannel, supra, 25 Cal.3d at p. 684, fn. 12, original italics, and People v. Carr (1972) 8 Cal.3d 287, 294; see also People v. Birks (1998) 19 Cal.4th 108, 118.)

The Attorney General concedes that misdemeanor false imprisonment is a lesser included offense of false imprisonment. However, the Attorney General argues there was insufficient evidence that the offense was less than that charged; i.e., no misdemeanor conduct occurred. Section 236 provides, “False imprisonment is the unlawful violation of the personal liberty of another.” Section 237 provides in pertinent part: “(a) False imprisonment is punishable by a fine . . . or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud or deceit, it shall be punishable by imprisonment in the state prison.”

Defendant argues, “[T]he trial court erred in failing to instruct, sua sponte, on the lesser included charge of misdemeanor false imprisonment, if the evidence permitted the jury to find that [his] restraint of [R. G.] was not accomplished by ‘violence or menace,’ in the sense that those terms are used in the case law.” (Original italics.) Defense counsel argued that defendant merely walked into the bathroom not knowing R. G. was inside. Defense counsel concluded that defendant’s only contact was to put his hand over R. G.’s mouth when she screamed in order to tell her, “‘It’s okay.’”

We agree with the Attorney General that there was no substantial evidence to support a misdemeanor false imprisonment finding. The jury was instructed with CALJIC No. 9.60 regarding false imprisonment, which included the definitions: “‘Violence’ means the exercise of physical force used to restrain over and above the force reasonably necessary to effect the restraint. [¶] ‘Menace’ means a threat of harm express or implied by word or act.” If the jury accepted the defense version of what occurred, no crime was committed. On the other hand, if the jury believed R. G.’s testimony that defendant locked the restroom door, refused to allow her to leave the restroom, and covered her mouth when she screamed, then only the offense of felony false imprisonment occurred. In reaching the guilty verdict, the jurors necessarily found that the false imprisonment was by violence or menace. Had they not reached that conclusion, they would have found defendant not guilty of committing any crime against R. G. (People v. Beames (2007) 40 Cal.4th 907, ___; People v. Chatman (2006) 38 Cal.4th 344, 392.)

Even if misdemeanor false imprisonment instructions should have been given, any error was harmless. Because this is a non-capital case, there was no federal constitutional right to instructions on lesser included offenses. (People v. Breverman, supra, 19 Cal.4th at p. 178; People v. Cheaves (2003) 113 Cal.App.4th 445, 455.) Hence, the People v. Watson (1956) 46 Cal.2d 818, 836 standard of reversible error applies. (People v. Lasko (2000) 23 Cal.4th 101, 111; People v. Breverman, supra, 19 Cal.4th at p. 178.) No doubt, the case was closer on the sexual abuse allegation particularly in light of Ms. Lister’s testimony. But there is no reasonable probability the jury would have found defendant committed only a misdemeanor false imprisonment.

B. Jury Selection

1. Overview

Defendant argues the trial court denied his constitutional right to an impartial jury by: refusing to excuse several jurors for cause after he had exhausted his peremptory challenges; denying his requests for more probing voir dire; and rejecting his request for additional peremptory challenges. The California Supreme Court has held: “A criminal defendant is entitled to a trial by jurors who are impartial and unbiased. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) Although neither the state nor federal Constitution expressly mentions the impartiality of jurors, courts have long interpreted both charters to encompass the right to impartial jurors. [Citations.]” (People v. Roldan (2005) 35 Cal.4th 646, 689; see Turner v. Louisiana (1965) 379 U.S. 466, 471-472; People v. Wheeler (1978) 22 Cal.3d 258, 265, overruled on another point in Johnson v. California (2005) 545 U.S. 162, 165; People v. Earp (1999) 20 Cal.4th 826, 852.) In Roldan,our Supreme Court further held: “‘Voir dire examination serves to protect [an accused’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at pp. 689-690; see McDonough Power Equipment, Inc. v. Greenwood (1984) 464 U.S. 548, 554.) However, our Supreme Court has held: “A ‘for cause’ challenge to a prospective juror should be sustained when the juror’s views would ‘prevent or substantially impair’ the juror’s ability to perform his or her duties in accordance with the instructions and oath. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 169; accord, People v. Cain (1995) 10 Cal.4th 1, 60.)

Our Supreme Court has also held: “‘[T]he qualification[s] of jurors challenged for cause are “matters within the wide discretion of the trial court, seldom disturbed on appeal.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1146, quoting People v. Kaurish (1990) 52 Cal.3d 648, 675.) “If a prospective juror’s responses to voir dire questions are halting, equivocal, or even conflicting, ‘we defer to the trial court’s evaluation of a prospective juror’s state of mind, and such evaluation is binding on appellate courts.’ [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at p. 169, quoting People v. Fudge (1994) 7 Cal.4th 1075, 1094.) Moreover, our Supreme Court has held: “‘In order successfully to claim error in the denial of a challenge for cause of a prospective juror, a defendant on appeal must demonstrate that the ruling affected his or her right to a fair and impartial jury.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1179, quoting People v. Horton (1995) 11 Cal.4th 1068, 1093; see People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Garceau (1993) 6 Cal.4th 140, 174.)

2. Refusing to excuse for cause of jurors later peremptorily challenged

Defendant objects to the trial court’s denial of his challenges for cause of seven prospective jurors. (Nos. 7260, 4921, 3063, 4142, 6929, 1527, 2435.) However, defendant subsequently exercised his peremptory challenges as to each of those jurors. He may not therefore claim a constitutional error based upon the trial court’s denial of the challenges for cause. (See People v. Horton, supra, 11 Cal.4th at p. 1093; People v. Johnson (1992) 3 Cal.4th 1183, 1211.)

3. Denial of the defense request for additional peremptory challenges

a. factual and procedural background

Defendant also argues that the trial court’s denial of his request for additional peremptory challenges “in light of the remarkable number of jurors who demonstrated they would be unwilling or unable to fulfill their duty as jurors” denied him of the right to an impartial jury. After an extended jury selection period, which included numerous challenges for cause by the deputy public defender representing defendant, Terry Shenkman, the trial court made the following ruling: “Given how jury selection has been proceeding to date, the court has made the following determination and is going to issue the following ruling. [¶] The court is going to deem that defense counsel will challenge for cause every juror who is examined based on the court’s ruling enforcing its time limitation for attorney voir dire. [¶] The court will also in advance announce that it is overruling the challenge on that ground for the same reason I have already stated numerous times at sidebar. [¶] This means that we will not have sidebars on the issue of challenges for cause unless there is some other basis for a challenge for cause other than what I have stated. So I just want to make sure defense counsel understands that when I come to you I will say, ‘the court is inquiring whether there is any additional challenge for cause or any additional reason to approach for cause.’” The trial court added: “The court will not entertain sidebars for the simple purpose of counsel wanting the court – wanting more time to inquire of jurors as to – as to all of the things you asked the jurors in your – when you still had time before you used it all up. That’s what I am talking about. [¶] If there is some specific grounds for cause or some specific additional question that you want either the court to ask or you want to ask that is not part of what – I mean, it’s pretty obvious. You asked a lot of questions about presumption of innocence, reasonable doubt, whether they thought they could be fair, why they thought they could be fair, all of the questions that you asked in the 34 minutes that you were given, the 30 minutes plus the additional 4, is what I am talking about. [¶] . . . The court simply does not want to hear challenges for cause based on the same thing that the court has ruled on time and time again. There is – I can – I am going to deem that they have been made, and the court will overrule them at that time, and I am simply giving you a method by which you can ask to approach if you have something different, something additional, some other grounds to challenge for cause.”

Prior to exhausting all of defendant’s peremptory challenges, Ms. Shenkman requested that she be granted additional peremptory challenges, indicating that she used 13 of them to excuse those for whom she challenged for cause. The trial court denied the request noting: “I note that there have been a number of challenges for cause. They have been denied. There have been a smaller number that have been granted. There have been a number that have been stipulated to. [¶] We have called into this court 80 jurors; first 55, a second panel of 25. We’re still working our way through the second panel, but we had an enormous number of jurors in this case. The court is denying the request for the court to grant additional peremptory challenges. I find it to be without any basis given the circumstances and the number of jurors in this case.” The trial court also advised Ms. Shenkman that she had exhausted her time for further voir dire. Thereafter, Ms. Shenkman exercised defendant’s last peremptory challenge.

b. Specific challenges

i. prospective juror No. 4304

Prospective juror No. 4304 indicated that he had: two cousins that were police chiefs; another cousin who was a detective; another cousin who was a Los Angeles County Sheriff’s deputy; and a friend who was a sheriff’s lieutenant. In an answer to the written questionnaire, prospective juror No. 4304 wrote that he would tend to automatically believe or disbelieve a person because they were in law enforcement because he was brought up that way. When the trial court asked if he would be able to evaluate each witness using the same factors, prospective juror No. 4304 responded, “I would do my best to try to do that.” When asked if he could follow the rules as the court explained them, prospective juror No. 4304 responded, “Yes.” The trial court inquired, “Anything further from the defense beyond the court’s ruling?” Ms. Shenkman responded, “No.” Prospective juror No. 4304 was sworn in as juror No. 3. Defendant argues prospective juror No. 4304 admitted to being incapable of overcoming an admitted bias. This contention has no merit—the juror expressly stated he would follow the trial court’s instructions. Our Supreme Court has held: “‘“Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial court’s determination as to his state of mind is binding upon an appellate court . . . .”’ [Citation.]” (People v. McPeters (1992) 2 Cal.4th 1148, 1176, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1089; see also People v. Mendoza, supra, 24 Cal.4th at p. 169; People v. Fudge, supra, 7 Cal.4th at p. 1094.) The record does not reveal that the prospective juror’s answers evidence bias when considered with his indicated willingness to do his best and follow the court’s instructions. As a result, the trial court did not abuse its discretion in denying the challenge for cause.

ii. prospective juror No. 8859

Prospective juror No. 8859, a forensic specialist with the Glendale police department, informed the court that her job included documenting and processing crime scenes. She also stated that it might be more difficult for her not to analyze the evidence presented because of the nature of her position. The trial court inquired, “Knowing yourself, do you think you would be able to do that, to limit your consideration of the case to what you hear in the courtroom?” Prospective juror No. 8859 responded, “I think I could, but there’s a little bit of me that says just because of the way I think and I just from doing my career so long, I may have a little bit of hesitation saying I could absolutely say that it wouldn’t influence me.” Thereafter, the trial court inquired, “If you were selected on this case and if you felt that you were unable to limit yourself just to the evidence presented, would you be able to let us know that.” Prospective juror No. 8859 responded, “Yes.” Ms. Shenkman then asked prospective juror No. 8859, “[D]o you think if you were to sit on a criminal case you would be better suited as a juror where you haven’t done that type of work?” Prospective juror No. 8859 responded, “Yes.” When asked if she believed her background would affect her ability to be an impartial juror, prospective juror No. 8859 responded: “As long as I could separate it and not overthink something in my own role specifically when I am hearing information. So if I had to say I might not be able to be impartial, then in that realm.” However, when asked whether she would favor one side over the other, prospective juror No. 8859 responded, “No.” Ms. Shenkman did not pass for cause. At a sidebar conference, the trial court held: “Based on the responses of the juror, I don’t believe it’s risen to the level of cause. She did say she wouldn’t favor one side or the other. She did seem to understand the importance of basing her decision on the evidence presented. [¶] She does have specialized knowledge, but I believe she can follow the instructions based on her responses to the court. She said she had a concern. She said it would be difficult. That doesn’t mean she can’t do it, and she did say she could do it. [¶] The court is denying the challenge.” Prospective juror No. 8859 was seated as juror No. 11. No abuse of discretion occurred.

iii. prospective juror Nos. 7426, 0204, and 1247

Defendant argues that the trial court abused its discretion by failing to ask sufficient questions of prospective juror Nos. 7426, 0204, and 1247 and refusing to allow defense counsel to inquire further. Ms. Shenkman’s challenges for cause as to these jurors were based upon the inability to “discern their potential biases” based upon the information garnered during voir dire. The California Supreme Court has held: “It is established that a trial court ‘is in the best position to assess the amount of voir dire required to ferret out latent prejudice, and to judge the responses’ [citation], and hence a trial court has ‘“great latitude in deciding what questions should be asked on voir dire.”’ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 617, quoting People v. Earp, supra, 20 Cal.4th at p. 852, and Mu’Min v. Virginia (1991) 500 U.S. 415, 424.) In this case, as was the case in Robinson, the trial court had circulated a questionnaire to prospective jurors. Those jurors in question responded to those inquiries as well as others posed by the court. Prospective juror No. 7426 answered several questions regarding his: involvement in a volunteer disaster response group; prior jury service; and a prior arrest for street racing as a juvenile. Prospective juror No. 0204 was questioned about the ability to follow the rules as explained by the trial court and that defendant did not have a responsibility to present evidence. Prospective juror No. 0204 indicated he could follow those rules. He also responded “No” to the inquiry about whether he would have difficulty believing the testimony of a 12-year-old or require the prosecution to present physical evidence before a conviction. Prospective juror No. 1247 answered questions regarding her prior jury experiences. She indicated she could follow the rules set forth by the court and would be fair and impartial to both sides.

As set forth previously, the trial court was in the best position to “‘assess the amount of voir dire required to ferret out latent prejudice, and to judge the responses.’” (People v. Robinson, supra, 37 Cal.4th at p. 617.) While additional questions from defense counsel may have assisted him in the exercise of challenges, the United States Supreme Court has held: “To be constitutionally compelled, . . . it is not enough that such questions might be helpful. Rather, the trial court’s failure to ask these questions must render the defendant’s trial fundamentally unfair.” (Mu’Min v. Virginia, supra, 500 U.S. at pp. 425-426; People v. Stewart (2004)33 Cal.4th 425, 458 [“trial court acted within its discretion by channeling the voir dire examination of the jurors within reasonable bounds and in a manner designed to expedite the jury selection process”].) The questionnaires adequately probed the prospective jurors’ backgrounds and views. When coupled with the trial court’s voir dire questioning, there was an adequate basis for the parties to exercise challenges for cause as well as peremptory challenges. (People v. Robinson, supra, 37 Cal.4th at p. 618; People v. Boulerice (1992) 5 Cal.App.4th 463, 477.) Defendant’s right to an impartial jury was not violated. Any error in denying defendant’s motions to exclude the prospective jurors for cause would not have been prejudicial. (People v. Carter, supra, 36 Cal.4th at p. 1179; People v. Horton (1995) 11 Cal.4th 1068, 1093.)

C. Alleged Prosecutorial Misconduct

1. Overview

Defendant argues that the prosecutor committed misconduct by: improperly attacking defense counsel; appealing to sympathy for the accusing witness; and, urging the jurors to ignore the presumption of innocence. In reviewing the principles governing findings of prosecutorial misconduct, the California Supreme Court has consistently noted: “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820, and People v. Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643; People v. Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.)

The California Supreme Court has held: “‘“‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .’ . . . ‘[He] . . . “ . . . is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets . . . .”’” (People v. Wharton [(1991)] 53 Cal.3d [522] 567-568 [].)’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at p. 819, quoting People v. Williams (1997) 16 Cal.4th 153, 221; People v. Brown (2003) 31 Cal.4th 518, 554.) The Supreme Court held: “[W]hen 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.” (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Furthermore, the California Supreme Court has held that a prosecutor’s comments in closing argument “must be viewed in context” with the remainder of the summation. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318, 326; see also People v. Medina (1995) 11 Cal.4th 694, 759-760; People v. Pensinger (1991) 52 Cal.3d 1210, 1250.)

2. Waiver

Preliminarily, the California Supreme Court has held that a reviewing court will generally not review a claim of prosecutorial misconduct unless an objection and request for admonishment was raised at trial or unless an admonitory comment would not have cured the harm. (People v. Benavides (2005) 35 Cal.4th 69, 108 [defendant’s failure to object to prosecutor’s alleged plea to the passions and prejudices of the jury and failure to request an admonition resulted in forfeiture of the issue on appeal]; People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Navarette (2003) 30 Cal.4th 458, 507; People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Ochoa (1998) 19 Cal.4th 353, 427.) The Supreme Court has held, “‘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 instruction the harmful effect upon the minds of the jury.” [Citation.]’ [Citation.]” (People v. Cox (1991) 53 Cal.3d 618, 682, quoting People v. Green (1980) 27 Cal.3d 1, 27, disapproved on another point in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Defendant’s claim of prosecutorial misconduct as to the prosecutor’s various comments has been waived because defense counsel failed to either object on that ground to the specified portion of the argument or to request a curative admonition in those instances where the trial court overruled his objection. Notwithstanding such forfeiture, as will be set forth below, we find no misconduct occurred.

3. Comments regarding defense tactics

Defendant argues that the prosecutor suggested that defense lawyers routinely put on dishonest defenses when she stated: “My job is to present the evidence to you. The defense’s job is to tell you that we have not proven our case no matter what the evidence is.” Defense counsel’s improper argument objection to that argument was sustained. However, defense counsel did not request that the jurors be admonished.

Thereafter, the prosecutor explained: “It is a very common defense tactic for the defense to tell you that the burden of proof, the standard beyond a reasonable doubt is some insurmountable obstacle. It is not an insurmountable obstacle. We use it every day in every criminal case. It is about reasonableness, and reasonableness is about common sense.” Defendant argues that the prosecutor’s argument was improper as set forth in italics below: “Now, counsel says that the lack of genital trauma is inconsistent with R. G.’s report of what happened to her, and she is saying that you have to focus on what R. G.’s words were. Now, I’ve already explained to you why R. G. said that, and, you know, not only the statement that R. G. made, the three fingers went into her private, that wasn’t the only evidence you heard. You saw her demonstrate how he did this. You saw that. That’s evidence, and you have to consider that. [¶] Now, Julie Lister, she told you that she has conducted thousands of sexual assault examinations. I believe she said about 4,000 of these examinations, and the majority of them have been on children, and she told you that in one situation that she can remember she saw trauma in a case involving digital penetration, and in that case it involved a jabbing type of motion. [¶] You didn’t hear any testimony of any jabbing type of motion. Your common sense tells you that the manner – if this happened in the manner in which R. G. described, you wouldn’t find any injury. She said that she stood still when she backed up into that corner. The defendant told her, ‘come here.’ She came forward, and she stood there. She didn’t move. She didn’t fight him off. The defendant was not required to use force on her to put his fingers in there. [¶] He put his fingers in there, and logically speaking – and Julie Lister actually told you this – that if a man is coming at a girl, he’s kneeling down and he’s coming at her with three fingers, it’s going to be very difficult for him to get three fingers in her genitals. That is common sense. [¶] So you wouldn’t expect to see an injury in this type of case. If Julie Lister had walked in here and said, ‘there was an injury and I think it was caused by the defendant putting his fingers on her genitals,’ then the defense would be arguing, ‘Well, isn’t it true that injuries are actually inconsistent with genital penetration.’” (Italics added.)

Defense counsel’s improper argument objection was overruled. No request for admonition was interposed. When defense counsel persisted, the trial court responded: “It’s argument. [¶] The jury has already been admonished that attorney’s statements [sic] is not evidence. It’s simply argument and arguing inferences from the evidence.” The prosecutor then continued: “Defense would be arguing that you don’t find injuries in cases such as these, and therefore, it didn’t happen. No matter what the result, they would have said that it didn’t happen.” Defense counsel neither objected to this argument nor requested an admonition. Later, the prosecutor reviewed Ms. Lister’s testimony based on hypothetical situations posed to her. The prosecutor concluded: “And counsel wants you to focus on non-issues. That’s another common defense tactic.” Defense counsel’s improper argument objection was overruled. No request for admonition was made.

Defendant argues that the trial court improperly overruled Ms. Shenkman’s objections to the prosecutor’s argument. Our Supreme Court has held, “It is not . . . misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence.” (People v. Huggins (2006) 38 Cal.4th 175, 207; see People v. Navarette, supra, 30 Cal.4th at p. 510; see also People v. Stitely (2005) 35 Cal.4th 514, 560; People v. Sapp, supra, 31 Cal.4th at p. 279.) The prosecutor’s argument was not an attack on Ms. Shenkman’s integrity. The attack was on Ms. Shenkman’s argument.

4. Alleged appeal for sympathy for the victim

Defendant argues: “[T]he prosecutor ‘bookended’ her closing remarks by urging the jury to cast its verdict based, not on the evidence but, rather, on sympathy for the complaining witness, [R. G.].” Defendant objects to the following argument: “When [R. G.] walked into that bathroom that afternoon, she felt safe. She was at school. Why wouldn’t she feel safe? It was 4:00 in the afternoon. There were adults and children around. She didn’t have a care in the world. She didn’t even make sure to lock the door to the bathroom. That’s how safe [R. G.] felt. [¶] But when that stranger sitting right over there walked into that bathroom and he told her to shut up and he covered her mouth when she screamed and he smashed her head against the door when she tried to get out and when [R. G.] realized that she was trapped and that she had no choice but to back up into that corner and allow this stranger to put his hands on her, this feeling of safety was gone. It was probably gone forever. [¶] How can [R. G.] ever feel completely safe again?” Defense counsel’s “improper argument” objection was overruled. No request for admonition was made. The prosecutor continued: “So, ladies and gentlemen, when counsel gets up here and tells you, as I suspect she will, that this case is about [deoxyribonucleic acid] and insignificant – insignificant details that may have been forgotten or confused by an 11-year-old child, I want you to remember what this case is really about. It’s about an 11-year-old girl whose body and freedom were violated that day and whose sense of security was destroyed, and I want you to keep that in mind no matter what we say during these arguments.” Defense counsel neither objected nor requested an admonition. Defendant now objects to the prosecutor’s closing argument, “I think it’s time that we put this nightmare to rest for [R. G.], and the only way you can do that is by making sure that the person who did this to her is held accountable.” No objection or request for admonition was interposed by defense counsel.

The California Supreme Court has held: “‘[A]n appeal for sympathy for the victim is out of place during an objective determination of guilt.’ [Citations.]” (People v. Kipp, supra, 26 Cal.4th at p. 1130, quoting People v. Stansbury, supra, 4 Cal.4th at p. 1057; accord, People v. Arias (1996) 13 Cal.4th 92, 160; People v. Pensinger, supra, 52 Cal.3d at p. 1250.) However, in People v. Hinton (2006) 37 Cal.4th 839, 908, the California Supreme Court held an argument that defendant deserved “‘the same sympathy and mercy’” that he had shown to each of his four murder victims was permissible. (See also People v. Hughes (2002) 27 Cal.4th 287, 395; People v. Ochoa, supra, 19 Cal.4th at pp. 464-465.) In this case, defense counsel argued: “So instead of admitting [R.G.’s] caught in a lie – and the evidence tells us that, the lack of trauma and the lack of [deoxyribonucleic acid] – what she tells us is – to get sympathy is ‘I am confused,’ and she tells us that ‘I have nightmares,’ and that was just a manipulative attempt on her part to get sympathy because perhaps she’s embarrassed about the lie she told.” As a result, the prosecutor could properly comment on Ms. Shenkman’s argument as well as R. G.’s testimony at trial. And as noted, R. G. testified as to her nightmares and fears.

5. Comments regarding presumption of innocence

Defendant contends the prosecutor argued the jurors should ignore the presumption of innocence. Defendant cites to the prosecutor’s closing argument: “Now I ask you when you come into this courtroom, you have to presume the defendant innocent. When you are out in your daily lives, do you think anyone would presume that a man who was locked in a bathroom with a young girl who was screaming -- [¶] . . . [¶] – was not doing anything in there?” Defendant’s “improper argument” objection was overruled. No request for admonition was made. Defendant argues, “[T]he prosecutor told the jury that a different presumption applied in their daily lives and clearly communicated that was how they should look at the facts in this case.”

It is important to note that the prosecutor’s argument as set forth above, followed defense counsel’s efforts to convince the jurors that R. G. made up the entire incident: “And, first, when the defense first got up here, they said [R. G.] did this for the fun of it, but later they said she did this because she was embarrassed. So a girl who is in the bathroom is embarrassed because there are children and she feels they are going to laugh and she says something that is more embarrassing than what actually happened. She made this whole thing up in that short period of time. She made this whole thing up. That is the interpretation of the evidence that the defense wants you to believe. Is that reasonable? [¶] They also want you to believe that this entire case is a conspiracy against the defendant; Mr. Alvarez didn’t actually see what he told you; he made that whole thing up because he’s biased against the defendant, a man he has never seen before. [¶] Miss Torres, she made up the testimony as well because she has these feelings toward [R. G.], and, you know, she was being accusatory towards the defense so she made the whole thing up.” The prosecutor could properly comment on Ms. Shenkman’s argument and propose it was based on an unreasonable interpretation of what occurred.

6. Prejudice

In any event, even if the prosecutor’s comments were inappropriate, it was not reasonably probable the comments influenced the jury’s guilt determination. (People v. Medina, supra, 11 Cal.4th at p. 760; People v. Stansbury, supra, 4 Cal.4th at p. 1057; People v. Pensinger, supra, 52 Cal.3d at p. 1250.) The jury acquitted defendant of both aggravated sexual assault and lewd act upon a child. In addition, the jurors were instructed that the arguments of counsel were not evidence. (CALJIC No. 1.00.) They were also instructed regarding: witness believability (CALJIC No. 2.20); discrepancies in a witness’s testimony (CALJIC No. 2.21.1); and a witness who presents willfully false testimony. (CALJIC No. 2.21.2.) The California Supreme Court has consistently stated that on appeal it is presumed that the jury is capable of following the instructions they are given. (People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Osband (1996) 13 Cal.4th 622, 714; People v. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) It is not reasonably probable that the jury would have reached a result more favorable to defendant absent the prosecutor’s comments. (See People v. Kipp, supra, 26 Cal.4th at p. 1130; People v. Fields (1983) 35 Cal.3d 329, 363.)

D. Restitution Fines and Penalties

The trial court imposed a $1,000 section 1202.4, subdivision (b)(1) restitution fine and stayed the $1,000 section 1202.45 parole revocation restitution fine. These two restitutions fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, as we explained recently in People v. Chavez (Apr. 19, 2007, B190270) ___ Cal.App.4th ___, ___-___, there are additional penalties or surcharges applicable to the sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines. Government Code section 70372, subdivision (a), the state court construction penalty, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines. (People v. Chavez, supra, ___ Cal.App.4th at p. ___.) Therefore, a state court construction penalty of $500 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.)

The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

IV. DISPOSITION

The judgment is affirmed as modified to impose the state court construction penalty as noted. The trial court is to personally insure a correct abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.

We concur: ARMSTRONG, J., KRIEGLER, J.


Summaries of

People v. Hill

California Court of Appeals, Second District, Fifth Division
Jun 6, 2007
No. B188141 (Cal. Ct. App. Jun. 6, 2007)
Case details for

People v. Hill

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JULIAN G. HILL, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Jun 6, 2007

Citations

No. B188141 (Cal. Ct. App. Jun. 6, 2007)

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