Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1500723) OPINION APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant, Ulices Villavazo, of four counts of committing lewd acts on a child under 14 years old. (Pen. Code, § 288, subd. (a).) The jury also found true the allegation that the offenses were committed against multiple victims. (§ 667.61, subds. (c), (e)(4).) The trial court imposed a sentence totaling 60 years to life, which consisted of four consecutive terms of 15 years to life.
Unless otherwise noted, all statutory references are to the Penal Code.
On appeal, defendant contends his convictions should be reversed for prosecutorial misconduct or error, because the prosecutor made statements during the People's closing and rebuttal arguments that improperly shifted the burden of proof to the defense and misstated the reasonable doubt standard of proof. Defendant also contends that his attorney's failure to object to the prosecutor's statements constituted ineffective assistance of counsel (IAC).
The terms "'prosecutorial "misconduct"'" and "'prosecutorial error'" are interchangeable insofar as defendant need not show that the prosecutor acted deceptively or reprehensibly to establish his claim. (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno); People v. Espinoza (1992) 3 Cal.4th 806, 820.) Throughout this opinion, we will refer to the basis of defendant's claim as prosecutorial error. --------
We reject defendant's contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Molestation of Jane Doe 1
Jane Doe 1 was about nine years old when her parents would leave her at her grandmother's home for several hours after school each day. Her grandmother's home had an upstairs living room where Jane Doe 1 would play. The living room was adjacent to a bedroom where defendant slept. Defendant was one of Jane Doe 1's uncles who lived in her grandmother's home with other extended family members.
Defendant would leave his bedroom about twice a week while Jane Doe 1 was playing and no one else was around, go into the living room, sit down next to her on the couch, and touch her vaginal and anal areas with his hands, over and under her clothing. Defendant did this to Jane Doe 1 for about one year. Jane Doe 1 did not like what defendant was doing, she thought it was wrong, she would tell defendant to stop and tried to get away from him. Jane Doe 1 told her grandmother four times that defendant was touching her inappropriately, but her grandmother ignored her. At the time, Jane Doe 1 did not tell her parents what defendant was doing but did tell them she did not want to visit her grandmother's home.
B. Jane Doe 1 Discloses Molestation to Investigators
Jane Doe 1 eventually told a friend and her middle sister about defendant's touching. The friend told a teacher, who contacted child protective services, whose representative interviewed Jane Doe 1 at school and called the police. Jane Doe 1 was then interviewed by a forensic social worker at the police station. During the interview, Jane Doe 1 gave a detailed account of her molestation by defendant and said that defendant had previously done the same thing to Jane Doe 2, her oldest sister. The interview was recorded and ultimately offered into evidence at trial without objection.
C. Molestation of Jane Doe 2
After Jane Doe 1 told her middle sister about being touched by defendant, the middle sister told their mother and Jane Doe 2. Jane Doe 2 became angry. Jane Doe 2 had previously told the middle sister that defendant had done the same thing to her when she was about seven years old.
Jane Doe 2 accompanied Jane Doe 1 to the forensic interview and afterwards Jane Doe 2 told a detective what defendant had done to her. On five or six occasions, when the extended family members were all living with Jane Doe 2, defendant had touched her vaginal area over her underwear with his hand. Jane Doe 2 twice told her aunt (X.L.) what defendant had done, but no one in the extended family made defendant accountable for his actions.
D. Charged Offenses
Defendant was charged with four violations of section 288, subdivision (a), committing lewd acts on a child under 14 years old. Counts 1 and 2 charged defendant for molesting Jane Doe 1 on or about September 1, 2013, through November 20, 2014. Count 3 charged defendant for molesting Jane Doe 1 on or about October 31, 2014, through December 25, 2014. Count 4 charged defendant for molesting Jane Doe 2 on or about August 1, 2003, through September 30, 2003. The four violations were further alleged to be qualifying sex offenses under section 667.61, subdivision (c), perpetrated against more than one victim. (§ 667.61, subd. (e)(4).) Defendant pled not guilty to all charges and denied all allegations.
E. Defendant's Case-in-chief
At trial, defendant attempted to cast doubt on the People's case-in-chief with evidence showing that it was not possible for him to have molested Jane Doe 1. Jane Doe 1 testified she was usually at her grandmother's home on weekdays after school from 3:00 p.m. to 5:00 p.m. Her father, however, testified that Jane Doe 1 was at her grandmother's home only on the weekends. Jane Doe 1's aunt (A.V.) testified that, for 12 years, defendant was rarely home during the workweek because he worked with her in Costa Mesa, they both drove to work together, and they both returned home after 7:00 p.m. A.V. also testified that she drove defendant home from the Riverside train station at 7:00 p.m., after he would return from his new job in Long Beach. The grandmother testified that defendant was at work all day and did not return home before 8:00 p.m. The grandmother denied any molestation could have occurred because she had the ability to monitor everything happening to Jane Doe 1 in the living room through a mirror located by the staircase. The grandmother testified that she was never told defendant molested Jane Doe 1 at the time the offenses took place.
F. The Jury Instructions
Among its other instructions, the jury was given CALCRIM Nos. 200 and 220. CALCRIM No. 200 advised jurors that the trial court's instructions prevail if there are conflicts between those instructions and counsel's arguments. CALCRIM No. 220 described the presumption of innocence along with the requirement of proof beyond a reasonable doubt.
G. The People's Closing and Rebuttal Arguments
The prosecutor correctly stated the evidentiary burdens of proof in a criminal action at the outset of the People's closing argument. When he addressed defendant's case-in-chief, the prosecutor characterized it as an "impossibility" defense that could not even be considered by the jury unless defendant offered a history of interaction with Jane Doe 1 that "plugs everything" and "makes it impossible" for him to have molested her. The prosecutor then asked the jury to evaluate all the evidence and determine "what is the reasonable conclusion that this evidence presents." In rebuttal argument, the prosecutor told the jury that "[w]hen you do all of these things, there's only one verdict that is reasonable . . . ." Defense counsel did not object to any of these statements or seek a jury admonishment to disregard them.
Defendant bases his prosecutorial error claim on statements the prosecutor made during the People's closing and rebuttal arguments, which allegedly shifted the burden of proof to the defense and misstated the reasonable doubt standard of proof. Defendant acknowledges that his trial attorney failed to object to those statements and failed to "seek appropriate admonishments and correction." Defendant nonetheless contends that this issue is not forfeited on appeal because "'[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.'" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Regardless of whether defendant's appeal was forfeited, we reach the merits of defendant's prosecutorial error claim because his IAC claim is premised on alleged prosecutorial error. We assess whether the prosecutor erroneously shifted the burden of proof and misstated the reasonable doubt standard of proof in the People's closing and rebuttal arguments. We then assess defendant's IAC claim to forestall a habeas petition based on IAC.
A. Prosecutorial Error—Legal Principles
Claims of prosecutorial error are subject to federal and state standards of review. (People v. Jablonski (2006) 37 Cal.4th 774, 835.) The federal Constitution is violated when the prosecutorial error infects the trial with such a degree of unfairness as to render defendant's conviction a denial of due process. (Ibid.; People v. Shazier (2014) 60 Cal.4th 109, 127.) Prosecutorial error involving comments by prosecutors to jurors has generally been viewed by California courts as error of less than constitutional magnitude (see People v. Bolton (1979) 23 Cal.3d 208, 214, fn. 4), warranting "reversal only if it is reasonably probable the trial outcome was affected." (Shazier, supra, at p. 127.) Accordingly, to prevail on a claim of prosecutorial error based on remarks to the jury, a defendant must show by a reasonable likelihood that the jury understood or applied the prosecutor's comments in an improper or erroneous manner. (Jablonski, supra, at p. 835.)
We thus review challenged prosecutorial comments to determine whether there is a reasonable likelihood the jury misinterpreted or misapplied them as instructions. (People v. Harrison (2005) 35 Cal.4th 208, 244 [regarding prosecutorial comments made before a jury, the question is how reasonably likely is it that the jury misconstrued or misapplied the comments]; Estelle v. McGuire (1991) 502 U.S. 62, 72.) We do not consider the comments in isolation but in the context of the whole trial record. (Estelle, supra, at p. 72.)
B. No Shifting Burden of Proof
Defendant contends the prosecutor erroneously shifted the burden of proof from the prosecution to the defense during the People's closing argument. According to defendant, the prosecutor left the impression that the defense was obliged to establish defendant's "'impossibility defense'" beyond all doubt, or to "'plug every hole.'" Defendant argues that, "[a]t the very least, the effect of the prosecutor's misstatements was to confuse the jury" into understanding "the prosecutor's arguments to mean that they could not consider the defense theory and evidence supporting it unless the defense had plugged every hole in the prosecution's case . . . ." We reject this contention and argument.
A prosecutor can legitimately critique a defendant's attempt to cast doubt on the People's case-in-chief. A prosecutor has "wide latitude in describing the deficiencies in opposing counsel's tactics and factual account," and claims of prosecutorial error have been rejected when the prosecutor has anticipated flaws in defendant's closing argument based on trial evidence or when the prosecutor has criticized the lack of evidentiary support for the defense theory. (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, by means of his challenged statements, the prosecutor argued that defendant's case-in-chief could not undermine the People's case-in-chief absent a complete accounting of all defendant's movements. The prosecutor's statements only drew the jury's attention to a flaw in the defendant's case-in-chief and did not shift the burden of proof.
Moreover, the California Supreme Court has rejected claims of jury confusion in cases involving prosecutorial statements that were genuinely problematic, unlike those before us. In People v. Marshall (1996) 13 Cal.4th 799, the prosecutor was accused of having shifted the burden of proof onto the defense by remarking in closing argument that it was incumbent upon the defendant to identify the real killer if he wished to establish a reasonable doubt as to his guilt. (Id. at p. 831.) The Supreme Court rejected the claim that the jury would have understood the prosecutor's remarks as charging the defendant with the burden of establishing a reasonable doubt as to his guilt, since the prosecutor could legitimately argue that the defense needed to identify another possible perpetrator to cast doubt on the People's case. (Id. at pp. 831-832.) In Gonzalez, the prosecutor claimed in closing argument that "'[t]he defense has to create a reasonable doubt . . . . The reasonable doubt has to be created by the defense.'" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1214, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 694.) The Supreme Court characterized the prosecutor's remark as "brief and mild" and offset by proper jury instructions and the defense's closing argument. (Gonzalez, supra, at p. 1215.) The reasoning of Marshall and Gonzalez strongly suggests that defendant's claim of prosecutorial error in this case should be rejected for the same reason.
Defendant argues that People v. Lloyd (2015) 236 Cal.App.4th 49 and People v. Cowan (2017) 8 Cal.App.5th 1152 are highly instructive authorities on the facts of this case. Defendant's reliance on Lloyd and Cowan is misplaced.
In Lloyd, the prosecutor argued in closing that, "'If you find there is self-defense, you are saying his actions, the defendant's conduct was absolutely acceptable.'" (People v. Lloyd, supra, 236 Cal.App.4th at p. 62.) The Lloyd court held that "the prosecutor misstated the law with the effect of lightening her burden of proof, defense counsel objected, and the court overruled the objection. The court's action in overruling the defense objection gave the appearance of condoning the prosecutor's interpretation of the reasonable doubt standard and the law on self-defense as it relates to a not guilty verdict." (Id. at p. 63.) By contrast, the prosecutor in this case did not misstate the law, defense counsel did not object, and the court did not condone any misstatement of law.
In Cowan, the prosecutor stated during closing argument that the defendant was presumed innocent when the charges were read, but the presumption was gone once the evidence was heard. (People v. Cowan, supra, 8 Cal.App.5th at p. 1154.) The prosecutor's remark was challenged by the defense, but the trial court did not sustain the objection and simply cautioned the jury to consider only its previous instructions. (Id. at pp. 1159-1160.) The Cowan court found that the prosecutor offered the jury a gross and uncorrected misstatement of the burden of proof in a criminal action. (Id. at p. 1159 ["Even a novice prosecutor should know not to make such a fallacious statement to the jury."].) The Cowan court branded the prosecutor's misstatement as "an unfair attempt to lighten the prosecution's burden of proof . . . ." (Id. at p. 1160.) By contrast, the prosecutor's statements in this case legitimately highlighted the weakness of defendant's case-in-chief. The statements were also made against the backdrop of proper jury instructions and the prosecutor's own correct statement of the People's evidentiary burden in a criminal action.
Even so, defendant argues that the jury instructions could not have cured any prosecutorial misstatement of law because they were given before the People's closing argument. Defendant concludes that only a rereading of the reasonable doubt standard of proof could have cured any possible error. Defendant arrives at this conclusion based again on Cowan. In Cowan, jury instructions were given before the prosecutor argued "her misguided version of reasonable doubt." (People v. Cowan, supra, 8 Cal.App.5th at p. 1154.) The Cowan court remarked that "the trial judge would have been well advised to inform the jurors that the prosecutor had misstated the law and to again read to the jurors the reasonable doubt instruction." (Ibid.)
The Cowan court made clear, however, that this remark was made as a "suggestion." (People v. Cowan, supra, 8 Cal.App.5th at pp. 1154-1155.) It was not offered "as a rule to follow in every case when counsel misrepresents the law or evidence," but only "[i]n the extreme case," "when the law is so misrepresented that the case is likely infected with prejudicial error, the trial court must intercede to ensure a fair trial." (Ibid.) This case, by contrast, required no special rereading of the jury instructions, since the prosecutor merely highlighted the flaw in defendant's case-in-chief. To the extent the prosecutor's statements were open to misinterpretation, the jury is presumed to have disregarded them and followed the correct deliberation principles laid out in the jury instructions. (Centeno, supra, 60 Cal.4th at p. 676; People v. Homick (2012) 55 Cal.4th 816, 866-867.) The jury was instructed with CALCRIM Nos. 200 and 220, both of which correctly instruct jurors on how to deliberate. (People v. Aranda (2012) 55 Cal.4th 342, 352-354; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185; People v. Anderson (2007) 152 Cal.App.4th 919, 929.)
Therefore, on the record of this case, we conclude there is no reasonable likelihood the jury interpreted the prosecutor's remarks during the People's closing argument as erroneously shifting the burden of proof from the prosecution to the defense.
C. No Misstatement of Reasonable Doubt Standard of Proof
Defendant also contends that the prosecutor misstated the reasonable doubt standard of proof during the People's closing and rebuttal arguments. According to defendant, the prosecutor asked the jury to consider all the evidence and all the witnesses' biases and conclude "there's only one verdict that is reasonable that the evidence supports, and that is a verdict of guilty on all the counts . . . ." Defendant argues that, "[h]ere, there is a reasonable likelihood the jury understood the prosecutor's arguments to mean that they . . . need only decide whether the prosecution's case was 'reasonable' in order to return a guilty verdict on all counts." We reject this contention and argument as well.
A jury may be persuaded to reject impossible or unreasonable interpretations of the evidence. (Centeno, supra, 60 Cal.4th at p. 672.) In this case, the prosecutor argued there was no reasonable doubt as to defendant's guilt because it was impossible for the defense witnesses to account for all of defendant's movements, and it was unreasonable for them to claim they could. The prosecutor legitimately assessed the reasonableness of defendant's interpretation of the evidence by telling jurors that defendant's guilt was the only reasonable interpretation of the evidence. The prosecutor's statement was a proper application of the reasonable doubt standard of proof, namely, that "the jury must be firmly convinced that guilt is the only reasonable interpretation of the evidence." (People v. Cowan, supra, 8 Cal.App.5th at p. 1162.) He was not arguing for a reasonableness standard of proof in lieu of the reasonable doubt standard of proof, and "'we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Centeno, supra, at p. 667)
Centeno is distinguishable. In Centeno, the Supreme Court concluded it was "error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the [People's] burden of proof in a criminal action. (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor argued that the jury's ultimate decision "has to be based on reason. It has to be a reasonable account." (Id. at p. 671.) The prosecutor then concluded that defendant was "'good for it'" because "'[t]hat is what is reasonable.'" (Id. at p. 672.) Unlike the prosecutor in Centeno, the prosecutor in this case never suggested that the jury's ultimate decision had to be a reasonable account of the evidence and that the People had met their burden so long as the prosecutor's interpretation of the evidence was reasonable. The prosecutor here merely argued that defendant's alibi evidence had to be reasonable to be accepted as showing a reasonable doubt regarding his guilt.
Given that the Supreme Court in Centeno also acknowledged the validity of urging a jury to "'"accept the reasonable and reject the unreasonable,"'" and there was nothing in such urging that would lessen the People's burden of proof (Centeno, supra, 60 Cal.4th at p. 672), we conclude there was no misstatement of the reasonable doubt standard of proof during the People's closing and rebuttal arguments in this case.
D. No IAC
Finally, defendant contends that his appeal was not forfeited by his attorney's failure to object to the alleged prosecutorial error because he was deprived of his federal and state constitutional rights to effective assistance of counsel. We reject the defendant's contention and its supporting IAC claim.
To prove IAC, defendant must show that his counsel's performance was deficient in terms of "'"'"prevailing professional norms"'"'" and that he suffered actual prejudice because of such deficient performance. (People v. Mickel (2016) 2 Cal.5th 181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.) Concerning deficient performance, only if the record discloses no rational tactical purpose for defense counsel's act or omission will a judgment be reversed on appeal. (People v. Viray (2005) 134 Cal.App.4th 1186, 1212; People v. Lucas (1995) 12 Cal.4th 415, 442.) The record shows that defense counsel had a tactical purpose for not objecting to the statements made by the prosecutor during the People's closing and rebuttal arguments. That tactical purpose was to avoid asserting a meritless challenge to statements that did not constitute prosecutorial error. (See People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to advance meritless arguments . . . ."].) Consequently, defendant cannot establish IAC and, by implication, defendant's claim of prosecutorial error fails.
We therefore affirm the judgment.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: RAMIREZ
P. J. MILLER