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Court of Appeal, Fifth District, California.

 The PEOPLE, Plaintiff and Respondent, v. Ricardo MURILLO, Defendant and Appellant.


Decided: April 23, 1987

 Kent A. Barkhurst, San Francisco, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., and Gary A. Binkerd, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.


On July 31, 1984, an information was filed in the Madera County Superior Court charging appellant, Ricardo Murillo, with one count of violating Penal Code section 288, subdivision (a),1 lewd and lascivious conduct with a child under the age of fourteen years.   It was also alleged within the meaning of section 1203.066 that (1) appellant occupied a position of trust and committed an act of substantial sexual conduct with the victim;  (2) appellant caused bodily injury to the victim;  and (3) he committed an act of substantial sexual conduct with a victim under the age of 11.

After jury trial, appellant was found guilty as charged and the special allegations were found to be true.   He was sentenced to state prison for the upper term of eight years.

Appellant filed a timely notice of appeal.


P. was a seven-year-old girl attending school on April 13, 1984, when her stepfather, the appellant, arrived on his bicycle either during or shortly after  the lunch break to give her a ride on his bicycle.   The school day was not scheduled to be completed until 2:15 p.m.   Appellant did not ask for any of P.'s brothers who also attended the same school.   He had never taken P. out of school early before.

P. testified she did not wish to leave school early because of an Easter party scheduled for that afternoon.   Despite this, appellant placed P. on his bicycle and gave her a ride to the park.   He took her into the dugout of the baseball field and told her to lie down and remove her clothing.   Appellant masturbated and ejaculated in front of her and then had sexual intercourse with her, resulting in a second ejaculation.   The intercourse was painful to her.   After appellant removed himself from her, she noticed she was bleeding between her legs.   Appellant told her the blood was his, and wiped away the blood with her T-shirt and underpants and discarded them.

On cross-examination, P. testified appellant took her over a bridge in the park to an “island” where she and appellant raced and played hide-and-seek.   Appellant performed sexual intercourse upon her in the tall grass on the island.   P. cried and appellant told her not to be a “cry baby.”   He threatened to spank her if she told her mother what had happened.

On April 28, 1984, appellant went fishing with one or more of P.'s brothers.   At this time, P. told her mother what had happened to her in the park.   P.'s mother confronted appellant with P.'s accusations later that day.   An argument ensued.   P.'s older brother telephoned the police.

Subsequently, the police arrived, and P.'s mother was yelling at appellant.   The mother was taken outside of the house with one officer while a second officer approached appellant who was seated on the bedroom floor.   The officer attempted to question appellant but appellant did not respond.   The officer went outside the house and talked with other family members.   At this time, he was informed by one of P.'s brothers that a possible sexual molestation of P. had occurred.   When the officer reentered the house to arrest appellant, appellant had fled through a bedroom window.

On May 1, 1984, P. underwent a physical examination which revealed the condition of P.'s hymen was consistent with sexual penetration.


Appellant testified he picked P. up at school on April 13 and took her for a bike ride in the park.   He testified they did not get off the bike and afterward he took her directly home.   He denied doing anything in the park to hurt P.

 Appellant admitted he and P.'s mother argued over the alleged molestation incident.   The argument caused someone to call the police.   One of the responding officers, Sergeant Noblett, tried to talk to appellant but then talked to one of P.'s brothers outside the house.   Appellant stated the police were called because he was intoxicated and he was fighting with P.'s mother.



Appellant contends the prosecutor improperly referred to information not in evidence and offered improper opinions to the jury during closing argument.   In discussing P.'s credibility, the prosecutor said to the jury:

“Ladies and gentlemen, [P.] doesn't lie.   She never has.   At least not in the time that I've delt [sic ] with her and these police officers have delt [sic ] with her.   If all she's doing is being led into a story by ․ the prosecution and by the police, if all that happened here is that she created the story by our leading questions, then where do we get the questions from?   Where did I get the questions to ask her what happened unless she had told me what happened to her?”

Referring to appellant in closing argument, the prosecutor also said:

“․ [T]he defendant corroborated [P.]'s story.   I'm not talking about his testimony on the stand, I'm talking about the way he acted while she was testifying.   If you watched the Defendant you will note that when she was testifying the entire time she was on the stand, he looked her straight in the eye and he grined [sic ] at her.   Almost as if he was enjoying what he was seeing happening.

“But what did he do when [P.'s mother took] the stand.   He didn't once look at her.   He—he hung his head down, he looked in his lap almost as if he was ashamed and he never once looked at her.”


 Comments by the prosecutor on the reputation and credibility of prosecution witnesses have been condemned as prejudicial misconduct.   (People v. Adams (1960) 182 Cal.App.2d 27, 35, 5 Cal.Rptr. 795.)   Implication of superior knowledge of a witness's credibility from sources unavailable to the jury “tended to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination.”  (People v. Bolton (1979) 23 Cal.3d 208, 213, 152 Cal.Rptr. 141, 589 P.2d 396.)   The comments by the prosecutor in this case informed the jury that P. had been investigated and interrogated by police officers and implied the faith and integrity of the district attorney's office and the police department were pledged in support of the veracity of P.'s testimony.  (See People v. Adams, supra, 182 Cal.App.2d 27, 34–35, 5 Cal.Rptr. 795.)   Thus, the prosecutor used the prestige of her office to assist in establishing the veracity of the complaining witness.  (Id. at p. 35, 5 Cal.Rptr. 795.)   These “ ‘statements of facts not in evidence by the prosecuting attorney in [her] argument to the jury constitute misconduct.’ ”  (People v. Bolton, supra, 23 Cal.3d 208, 212, 152 Cal.Rptr. 141, 589 P.2d 396, quoting People v. Kirkes (1952) 39 Cal.2d 719, 724, 249 P.2d 1.)   The opinion that P. never lied is clearly a reference to interviews the prosecutor and police had with the child in the weeks before trial.   The substance of these interviews was not in evidence.

Since defense counsel failed to object to the aforementioned misconduct, we must first determine whether a timely objection and admonition would have cured the harm.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.)   If it would, the contention must be rejected;  if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.  (Ibid.)

 In the instant case, we must conclude that a timely objection and request for admonition would not have cured the harm.   Once the prosecutor uttered the statement “․ [P.] doesn't lie.   She never has,” the prosecutor had already used the prestige of her office to assist in establishing the veracity of the complaining witness.   In our view, the damaging force of the prosecutor's remarks would not have been negated by admonishing the jury to disregard them.   Therefore, the error was not waived.


During closing argument, the prosecutor further commented upon appellant's demeanor and conduct during the testimony of two other witnesses.   However, the record is void of any evidence as to appellant's demeanor while not testifying.   There can be no presumption that, during this time, the jurors witnessed appellant's conduct for themselves.   Their attention would have been properly focused on the witnesses testifying on the witness stand.   Therefore, by her comments in this respect, the prosecutor became an unsworn witness not subject to cross-examination, referring to matters not before the jury.

 Ordinarily, a defendant's nontestimonial conduct in the courtroom does not fall within the definition of “relevant evidence” as that which “tends  logically, naturally, [or] by reasonable inference to prove or disprove a material issue” at trial.  (People v. Jones (1954) 42 Cal.2d 219, 222, 266 P.2d 38;  People v. Garcia (1984) 160 Cal.App.3d 82, 91, 206 Cal.Rptr. 468.)   Neither can it be properly considered by the jury as evidence of defendant's demeanor since demeanor evidence is only relevant as it bears on the credibility of a witness.  (Ibid.;  Evid.Code, § 780.)   If anything, focusing the jurors' attention on a defendant's courtroom conduct distracts their attention from and may diminish the weight they assign to the permissible factors identified by the instructions as legitimately aiding in the determination whether the defendant committed the alleged offense.   Authorizing the consideration of such demeanor in the determination of guilt or innocence also runs the serious risk of inviting the jury to use the character of the accused to prove guilt which is wholly improper unless the defendant first presents evidence of his good character.  (Evid.Code, § 1102;  People v. Terry (1970) 2 Cal.3d 362, 400, 85 Cal.Rptr. 409, 466 P.2d 961.)

In Garcia, the prosecutor reviewed the brutal nature of the crimes charged in closing argument and then asked:  “Why?   I can't explain the why of it no more than I can explain why two people could sit in a courtroom and hear [the victim] relate that horrendous experience, how close she came to death and sit here listening to that testimony and snicker and jeer and laugh about it.”   (People v. Garcia, supra, 160 Cal.App.3d 82, 93, 206 Cal.Rptr. 468.)   The Garcia court held the prosecutor's reference to defendant's courtroom behavior was improper as it invited the jury to speculate the defendant's courtroom conduct showed him to be the type of person willing to participate in unlawful activity and therefore is likely to have committed the crimes in question.  (Ibid.) 2

Respondent herein contends the comment was permissible in that appellant's demeanor was relevant to show a consciousness of guilt on his part.   Respondent relies on People v. Butler (1970) 12 Cal.App.3d 189, 90 Cal.Rptr. 497 in which the court stated:  “ ‘Any conduct of a defendant subsequent to the commission of the crime tending to show consciousness of guilt is relevant and admissible․’ ”  (Id. at p. 193, 90 Cal.Rptr. 497.)   However, the ruling in Butler refers to the admissibility of evidence, not the commenting upon nontestimonial conduct not in evidence or not being offered in evidence.   (Ibid.)  Respondent also cites People v. Mullen (1953) 115 Cal.App.2d 340, 252 P.2d 19 regarding alleged misconduct of the district attorney in commenting upon the appellant's signaling a prospective witness by placing his fingers to his lips.   The Mullen court held the conduct of the appellant  in that case to be relevant.   No further comment was made by the court regarding that assignment of error.   It should be noted, however, the only objection to the prosecutor's comment was as to relevancy and not on the ground of misconduct.  (Id. at p. 345, 252 P.2d 19.)   Thus, it may be inferred the court found the error of prosecutorial misconduct, if any, had been waived and the only question before the court was the relevancy of the comment.

 In the instant case, while appellant's demeanor during the testimony of P. and P.'s mother might have been relevant as to appellant's consciousness of guilt, it was a violation of his Sixth Amendment right to confront and cross-examine the witnesses against him for the prosecutor to comment to the jury as to appellant's demeanor.   Thus, the prosecutor's statements in this regard not only constituted prosecutorial misconduct but also violated appellant's Sixth Amendment rights.

Although defense counsel again failed to object to these comments of the prosecutor in closing argument, it does not appear a timely objection and admonition would have cured the harm.   The jurors were likely to have accepted the accuracy of the prosecutor's remarks, particularly if they had not observed appellant's demeanor for themselves.   It has been recognized that statements of the prosecutor improperly referring to matters not in evidence “ ‘although worthless as a matter of law, can be “dynamic” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ ”  (People v. Bolton (1979) 23 Cal.3d 208, 213, 152 Cal.Rptr. 141, 589 P.2d 396.)

As the harm caused by the prosecutorial misconduct could not have been cured by a timely objection and admonition, this court must reach the issue of whether the error requires reversal of the judgment.

“It has also been suggested that prosecutorial argument ‘which goes beyond the evidence admitted may be violative of the Sixth Amendment which provides that every accused has the right to be confronted by the witnesses against him.’  [Citation.]”  (Ibid.)

“Courts of this state have generally assumed that prosecutorial misconduct is error of less than constitutional magnitude.  (See, e.g., People v. Chi Ko Wong (1976) 18 Cal.3d 698, 723 [135 Cal.Rptr. 392, 557 P.2d 976]․)  However, Chapman itself recognized that a prosecutor's closing argument could be so improper as to create federal constitutional error.  (Chapman v. California, supra, 386 U.S. 18, 25–26 [87 S.Ct. 824, 828–829, 17 L.Ed.2d 705]․)  Commentators have also chided courts for downplaying the inroads on a defendant's constitutional rights often accomplished by misconduct.   [Citations.]

 “Though this court need not decide this issue in the present case, it seems probable that the prosecutor's attempt to characterize the defendant as a ‘bad guy’ in violation of the rules of evidence was a violation also of defendant's Sixth Amendment right of confrontation.   The prosecutor, serving as his own unsworn witness, is beyond the reach of cross-examination.   However, recent decisions of the Supreme Court have noted the importance of cross-examination to the Sixth Amendment right of confrontation.  ‘If one were to translate the Confrontation Clause into language in more common use today, it would read:  “In all criminal prosecutions, the accused shall enjoy the right to be present and to cross-examine the witnesses against him.” ’   [Citations.]  And, although the Supreme Court has allowed certain out-of-court statements, never subjected to cross-examination, to be admitted at trial, it has indicated that the absence of cross-examination at the time of the out-of-court statement was made is not crucial ‘as long as the declarant is testifying as a witness and subject to full and effective cross-examination’ at trial.   (California v. Green, supra, 399 U.S. 149, 158 [90 S.Ct. 1930, 1935, 26 L.Ed.2d 489]․)

“Therefore, in cases such as the present one, a strong argument exists that a violation of a constitutional right is involved and the Chapman standard of prejudice should be applied.”  (People v. Bolton, supra, 23 Cal.3d 208, 214–215, fn. 4 [152 Cal.Rptr. 141, 589 P.2d 396].)

 As we have stated, the instant case involves two incidents of a prosecutor improperly commenting to the jury under the guise of making closing argument regarding matters not in evidence thus violating appellant's Sixth Amendment right to confront and cross-examine witnesses against him.   Where, as here, federal constitutional error is involved, and, as in most sex offense cases, the alleged perpetrator of the crime and the alleged victim are the sole or principal witnesses, and there is a sharp conflict between their testimony, there is grave danger that misconduct of counsel may tip the scales of justice.  (People v. Bain (1971) 5 Cal.3d 839, 849, 97 Cal.Rptr. 684, 489 P.2d 564.)   Similar misconduct has been held in other cases to require reversal.  (See People v. Bain, supra, at pp. 849–850, 97 Cal.Rptr. 684, 489 P.2d 564;  People v. Kirkes (1952) 39 Cal.2d 719, 725–726, 249 P.2d 1;  People v. Talle (1952) 111 Cal.App.2d 650, 674–677, 245 P.2d 633.)   In a case such as this, where the victim of tender years produces testimony with many inconsistencies to the extent it becomes unclear whether there were one to three alleged instances of sexual molestation and a question as to the location of those occurrences, the defendant testifies on his own behalf and adamantly denies the conduct, and the critical issue is one of credibility, it cannot be said that the prosecutorial misconduct did not contribute to the verdict obtained.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Therefore, the judgment of conviction must be reversed.


The judgment is reversed for the reasons stated in part I of this opinion and the cause is remanded for retrial.


1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The Garcia court limited its holding to those instances where a defendant's nontestimonial behavior at the counsel table is not objectively relevant to any disputed issue at trial and is merely offered to show the defendant's character or a trait of his character.  (Id. 160 Cal.App. at p. 91, fn. 7, 206 Cal.Rptr. 468.)

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Judge.

BEST and BALLANTYNE, JJ., concur.