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THE PEOPLE, Plaintiff and Respondent, v. CURTIS WALTER HEALAN, Defendant and Appellant.
INTRODUCTION
Defendant Curtis Walter Healan appeals from a judgment of conviction entered after a jury trial. Defendant was convicted of the continuous sexual abuse of a child (Pen.Code, § 288.5, subd. (a)) 1 and 10 counts of lewd acts with a child under the age of 14 (§ 288, subd. (a)). The trial court sentenced defendant to 72 years in state prison: 12 years for the continuous sexual abuse and, pursuant to section 667.6, subdivision (c), consecutive full terms of six years for each of the lewd acts.
On appeal, defendant claims evidentiary and sentencing error, and prosecutorial misconduct. He also claims the trial court failed to conduct a full inquiry into his claim of ineffective assistance of counsel. We agree with his claim of sentencing error and modify the judgment accordingly. We reject his remaining claims of error.
Defendant additionally petitions this court for a writ of habeas corpus based on ineffective assistance of counsel. We deny the petition.
FACTS
A. Prosecution
A.O. lived with her grandmother and defendant, her grandmother's boyfriend, in a house on Rives Street in Downey from the time she was in kindergarten through the middle of second grade, when she was four to seven years old. Her mother, two brothers, and the father of one of her brothers lived with them.
When A.O. was in the first grade, defendant began touching her inappropriately. The first time, he began rubbing her back over her clothes. He then moved his hand down her back and rubbed her behind in a circular motion. This happened on more than five occasions.
Defendant also touched A.O.'s knee, then moved his hand up her thigh and rubbed her vagina over her clothes. This occurred on more than five occasions. At other times, defendant touched her chest and rubbed his hand back and forth, over her clothes. This, too, occurred on more than five occasions.
When A.O. was in the second grade, she moved with her mother and brother to an apartment in Downey. That summer, she moved to an apartment on Lakewood Street with her grandmother and defendant. While she lived there, defendant continued to touch her behind, vagina and chest, both over and under her clothing. He took her hand and made her rub his penis, both over and under his clothing. He also touched her vagina, both over and under her clothes, with two penis-shaped objects, one of which vibrated. In addition, he showed her movies of adults having sexual intercourse. The touching incidents happened on more than five occasions.
Shortly after school started in the fall, A.O. moved into a recovery home in Whittier with her mother and brothers. Near the end of fourth grade, they moved into her grandfather's house in Norwalk.
While she was living with her grandfather, A.O. told her aunt what defendant had done to her. Then she spoke to the police, who told her to speak to defendant and her grandmother. When she did this, her grandmother did not believe that defendant would do something like that. Her grandmother warned A.O. to be careful about what she said, because something could happen to defendant.
A couple of weeks later, another relative took A.O. to the police station to tell the police that she had lied about defendant touching her. She also told a cousin that her accusations were not true.
When A.O. was in the fifth grade, she moved to Bell Gardens with her mother, brothers, grandmother and defendant. On an almost weekly basis, defendant touched her behind, vagina and chest over her clothes.
The following year, they moved to Pimenta Street in Lakewood. When A.O. was in the ninth grade, she moved out and went to live with her aunt and uncle.
A.O. again reported the molestation. On May 30, 2007, A.O. met with Detective Gerardo Lucio of the Los Angeles County Sheriff's Department. He had her make a telephone call to defendant, which he recorded. In the call, A.O. told defendant she wanted him to say he was sorry for molesting her and asked defendant “why'd you do it to me cause I was, cause I was only like six or seven?” Defendant acknowledged, “I'm sure I did-I probably did a little bit um more than what I should but ․ it wasn't meant like that. I mean nothing was meant like anything was bad.” He acknowledged using a vibrator on A.O. but claimed “that wasn't a sexual thing, that was just like m[a]ssaging thing․”
On May 31, Detective Lucio went to defendant's home and placed him under arrest. In subsequent interviews, defendant admitted using a vibrator on A.O. and touching her vagina, but he claimed that she never touched his penis.
B. Defense
Diane Tafoya (Tafoya), A.O.'s grandmother, was separated from A.O.'s grandfather, Joe Tafoya. In 1996, Tafoya lived with defendant and with A.O. and her family in a house on Burns Street in Downey. In 1999, Tafoya and defendant moved to the Stonewood Village Apartments; A.O. lived with them there for two and a half months. While A.O. lived with her there, Tafoya took A.O. to and from school. A.O. did not live with Tafoya again until Tafoya moved to Pimenta Avenue in Lakewood.
During the 12 years that Tafoya and defendant were together, defendant worked outside the home, Monday through Friday. Tafoya never saw defendant molest A.O.
Tafoya's sister, Carol Merrit (Merrit), had a conversation with A.O. in which A.O. said that defendant molested her. Merrit took A.O. to the sheriff's station in February 2002 to report the molestation. A.O. later said she lied about the molestation.
Carol's husband, Lonnie Merrit, employed defendant for about 12 years. He also employed Frank Granado (Granado). Granado lived with defendant at various times, including the times defendant lived on Burns Street, in the Stonewood Village Apartments, and on Pimenta Avenue. Granado never saw defendant molest A.O.
Defendant testified in his own behalf. He had lived with Tafoya for about 12 years. He did not learn that A.O. had accused him of molesting her until after she recanted her accusation.
During the time A.O. lived with him on Pimenta Avenue, he was working for Lonnie Merrit. He left for work at about 6:00 a.m. and returned home at about 7:00 p.m.
Defendant was arrested on May 31, 2007 at about 6:30 a.m. The sheriff's deputies put him in a cell, did not give him anything to eat and did not permit him to make a telephone call.
Defendant initially denied molesting A.O. or touching her vagina, buttocks or breasts. The deputies told him that he was either a child molester or someone who had made a mistake and needed help. He then admitted touching A.O.'s vagina three times and touching her 10 times. He still denied molesting her, however, explaining that he touched her as part of a game.
Defendant explained that when A.O. called him the day before his arrest, he did not deny molesting her because he had heard that she was contemplating suicide and he did not want to upset her. When he talked to her about using a vibrator, he was referring to a three-pronged massager, not a sex toy.
Defendant further explained that in the interview with the sheriff's deputies, he admitted touching A.O.'s vagina while he was on “speed” because he thought the deputies would believe that explanation and see him as a person who needed help.
DISCUSSION
A. CALCRIM Nos. 1110 and 1120
Defendant contends CALCRIM Nos. 1110 and 1120, which set forth the elements of continuous sexual abuse of a minor and lewd acts on a minor, are constitutionally flawed because they remove an essential element of the offenses from the jury's consideration. Specifically, he challenges the portions of the instructions which state that: “Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. The touching need not be done in a lewd or sexual manner.” (Italics added.) 2
Defendant's contention is based on section 288, which provides that “[a]ny person who willfully and lewdly commits any lewd or lascivious act ․ upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony․” (Italics added.) Defendant argues that CALCRIM Nos. 1110 and 1120 “expressly tell the jury that the acts in question need not be done in the very manner in which the statute requires that act to be done, namely ‘lewdly.’ ” 3
As the Supreme Court explained in People v. Martinez (1995) 11 Cal.4th 434, because the purpose of section 288 is to protect children from sexual misconduct, the statute “prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act.” (Martinez, supra, at p. 444.) Therefore, “ ‘[i]f [the] intent of the act, although it may have the outward appearance of innocence, is to arouse ․ the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute․’ [Citation.]” (Ibid.) For this reason, there is no restriction on “the form, manner, or nature of the offending act.” (Ibid.) Indeed, it “need not be ‘sexual in character.’ ” (Ibid.) Rather, “any touching of an underage child is ‘lewd or lascivious' within the meaning of section 288 where it is committed for the purpose of sexual arousal.” (Id. at p. 445; accord, People v. Lopez (1998) 19 Cal.4th 282, 289.)
Stated otherwise, it is not the touching which must be “lewd” but the intent of the perpetrator in committing the act. CALCRIM Nos. 1110 and 1120 therefore correctly state the law.
B. Sentencing
Defendant contends the trial court erred in imposing full consecutive sentences on the 10 counts of lewd or lascivious acts on a child. The People claim he has forfeited this contention by failing to challenge the sentence below and, in any event, the trial court did not abuse its discretion in imposing the sentence.
The trial court imposed full consecutive sentences on the 10 counts of lewd or lascivious acts under section 667.6, subdivision (c). That section provides: “In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e)․” The offenses specified in subdivision (e) includes “(5) Lewd or lascivious act, in violation of subdivision (b) of Section 288.”
Defendant was convicted of lewd or lascivious acts in violation of subdivision (a) of section 288. It is not an offense specified in subdivision (e) of section 667.6. Therefore, the provisions of subdivision (c) do not apply. (See People v. Jones (1988) 46 Cal.3d 585, 592 [“section 667.6, subdivision (c), permits the imposition of a full, separate, and consecutive term ‘for each violation of’ the enumerated sex offenses”].)
Defendant's contention is not forfeited by the failure to raise it below. As a general rule, claims of sentencing error involving factual questions or an exercise of discretion by the trial court must be raised below or they are waived. (People v. Scott (1994) 9 Cal.4th 331, 351-352.) However, a claim that a sentence is unauthorized may be raised on appeal even absent an objection below. (Id. at p. 354.) An unauthorized sentence is one which cannot lawfully be imposed under any circumstances in a particular case. (Ibid.) That description fits the sentence here.
The People inexplicably argue that even if the sentence was unauthorized under section 667.6, subdivision (c), the trial court acted within its discretion pursuant to section 667.61, subdivision (i). Subdivision (i) of section 667.61 mandates consecutive sentences for certain convictions of offenses specified in paragraphs (1) to (7) of subdivision (c) of that section. These offenses include lewd or lascivious acts in violation of subdivision (b) of section 288. Violation of subdivision (a) of section 288, of which defendant was convicted, is listed in paragraph (8) of section 667.61, subdivision (c). Section 667.61, subdivision (i), did not give the trial court the discretion to impose full, consecutive sentences for defendant's convictions of lewd or lascivious conduct.
People v. Rodriguez (2005) 130 Cal.App.4th 1257, on which the People rely, is inapplicable. Rodriguez addresses the question whether the trial court has the discretion to consider concurrent sentences under section 667.61, subdivision (b), which provides mandatory 15-years-to-life terms for persons convicted of offenses listed in paragraph (c) if one of the circumstances listed in subdivision (e) is present. It does not hold that the trial court has the discretion to impose consecutive sentences under subdivision (i) for an offense other than those specifically included within its purview.
Inasmuch as section 667.6, subdivision (c), does not apply, the proper sentence is as follows: On count 1, the middle term of 12 years. Pursuant to subdivision (d) of section 667.6, this “term shall not be included in any determination pursuant to Section 1170.1.” Therefore, a full consecutive middle term of six years may be imposed on count 2, as the principal term. Section 1170.1 provides for consecutive sentences for each of the subordinate terms of one-third the middle term for each offense. (Id., subd. (a).) The middle term for violation of section 288, subdivision (a), is six years. Therefore, on counts 3 through 11, a consecutive term of two years for each offense, for a total of 18 years, is authorized. We will modify the judgment accordingly.
C. Effective Assistance of Counsel
Defendant moved for a new trial based on ineffective assistance of counsel, on the ground his “trial counsel, Mr. George, failed to remain awake during relevant parts of the trial.” 4 The motion was supported by declarations from Tafoya and Barbara Contreras, who observed Mr. George fall asleep numerous times during the trial. Additionally, Tafoya stated that Mr. George was unavailable for a three-week period prior to trial, became forgetful and confused and fell asleep during pretrial conferences with defendant, cancelled conferences due to medical appointments, and took much of his argument from material she had prepared for him.
At the hearing on the motion, the trial court observed: “The court has read and considered the motion[ ]. I would indicate that the court realizes that Mr. George is not the attorney that he was many years ago, but the court also notes that he did not fall asleep during the trial. Court watched him very carefully during the trial. He never once slept, and all of his conduct was appropriate to the matters going on before the court.”
When defendant's counsel brought up the pretrial matters in Tafoya's declaration, the court responded that the question was not whether Mr. George's conduct at pretrial hearings was inappropriate but whether there was “inappropriate conduct by the lawyer ․ regarding trial, calling witnesses, or interrogating witnesses, or being alert to the trial, or all of the things that a trial lawyer's expected to do.” To the court, “the question is how did he perform during this trial? Was there some defense not asserted? Was there some appropriate motion not run that there's no explanation for? [¶] He ran the motions regarding the confession, the appropriate arguments were made.”
The trial court added that it would “state on the record, I was concerned about Mr. George's mental condition as a consequence. It was a very heightened sensitivity towards what was being done to ensure-and I didn't say anything at any time during the trial, it's just that I can understand the family's reaction to some of his actions, and I can-I can say unequivocally that he did not sleep during the trial because I was watching him very carefully. [¶] I was also watching examination, what was being done, and there was nothing that I saw that fell below the standard of care.” The trial court therefore denied the new trial motion.
On appeal, defendant contends that the trial court failed to conduct an adequate inquiry into defendant's claim of ineffective assistance of counsel. Specifically, defendant claims the trial court should have inquired of Mr. George and court personnel present during the trial about Mr. George's attentiveness and representation during trial.
Defendant analogizes his situation to that of a defendant seeking to substitute appointed counsel. In that situation, a defendant who seeks to substitute counsel has the right to a hearing to explain the reasons for the request. (People v. Marsden (1970) 2 Cal.3d 118, 124.) The trial court “must inquire on the record into the bases of defendant's complaints and afford him an opportunity to relate specific instances of his attorney's asserted inadequacy.” (People v. Hill (1983) 148 Cal.App.3d 744, 753.) The court may also have a duty to inquire further and ask specific questions in order to get sufficient information to exercise its discretion in ruling on the motion. (People v. Miranda (1987) 44 Cal.3d 57, 77, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) The court properly may consider its own observations of the attorney's performance in determining whether defendant is receiving adequate representation. (People v. Hines (1997) 15 Cal.4th 997, 1026.) However, where defendant's complaints are based on counsel's performance outside of the courtroom, the court has a duty to inquire as to those complaints. (Ibid.)
Had defendant moved to substitute counsel during trial, the foregoing principles would have been applicable. He did not do so, however. He waited until the trial was over and then moved for a new trial.
While section 1181 does not provide a statutory basis for addressing a claim of ineffective assistance of counsel in a new trial motion, it has been held that “in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.” (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Andrade (2000) 79 Cal.App.4th 651, 659.)
On a motion for new trial, defendant has the burden of demonstrating reversible error. (People v. Guerra (2006) 37 Cal.4th 1067, 1159, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.) Defendant cites no authority for the proposition that if he is unable to meet this burden, the trial court has a duty to assist him in doing so by conducting its own investigation into his claims of impropriety. We might see some merit to this proposition if defendant were still represented by the counsel he claims to have been ineffective. But where, as here, defendant has obtained new counsel to move for a new trial, we see no basis for imposing such a duty on the trial court.
A motion for new trial is addressed to the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (People v. Guerra, supra, 37 Cal.4th at p. 1159.) There is a strong presumption that the trial court properly exercised its discretion, so abuse must appear clear and unmistakable. (Id. at pp. 1159-1160; People v. Davis (1995) 10 Cal.4th 463, 524.) In reviewing the trial court's ruling, we defer to the court's factual findings if supported by substantial evidence. (See Guerra, supra, at p. 1159.)
Here, the trial court relied on its own observations of Mr. George's courtroom performance in determining that Mr. George was not sleeping during trial and provided defendant with effective assistance during trial. We defer to the trial court's findings, since it was in the best position to observe Mr. George's performance.
As to Mr. George's claimed inadequacies outside the courtroom, defendant presented no evidence that they affected the trial. They are thus insufficient to establish ineffective assistance of counsel. (In re Cudjo (1999) 20 Cal.4th 673, 687.)
Defendant failed to meet his burden of establishing ineffective assistance of counsel. The trial court therefore did not abuse its discretion in denying his motion for new trial.
Defendant also raises the issue of ineffective assistance of counsel in his petition for writ of habeas corpus. In support of his petition, he submitted the declaration of his appellate counsel, indicating that he contacted Mr. George after being appointed to represent defendant and, based upon his contact, he “believe[d] there may be an issue as to [Mr. George's] competency at the time of trial.”
Counsel's belief that “there may be an issue” falls far short of a prima facie case for habeas corpus relief. Accordingly, defendant's petition must be denied. (In re Lawler (1979) 23 Cal.3d 190, 194.)
D. Prosecutorial Misconduct
Prosecutorial misconduct “involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462.) There may be prosecutorial misconduct even in the absence of intentionality or bad faith. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) However, reversal for prosecutorial misconduct is not required unless defendant has been prejudiced thereby (People v. Fierro (1991) 1 Cal.4th 173, 209), i.e. if it is reasonably probable defendant would have obtained a more favorable result absent the misconduct (Cal. Const., art. VI, § 13; People v. Hill (1998) 17 Cal.4th 800, 844; People v. Watson (1956) 46 Cal.2d 818, 836). “[T]he burden of proof is on the defendant to show the existence of misconduct.” (People v. Van Houten (1980) 113 Cal.App.3d 280, 292.)
Defendant claims two types of prosecutorial misconduct: arguing facts not in evidence and being abusive and rude to defendant when he was testifying. It is misconduct for the prosecutor to argue matters not admitted as evidence. (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) It also is misconduct to disparage or insult the defendant. (People v. Travis (1954) 129 Cal.App.2d 29, 39; People v. Edgar (1917) 34 Cal.App. 459, 465-466; see also People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
1. Argument
In closing argument, the prosecutor told the jury: “One of the things about these types of crimes, the court told you is that when you are talking about a sexual abuse of a child-and this is the law-remember, we all agreed to follow the law whether we like it or not-the court has instructed us in these types of crimes, sexual acts on a child, your decision in these types of cases may be based upon the testimony of the victim alone. You don't need one witness, one iota, one grain of corroboration.
“And the law is drafted that way because of how these crimes are committed and because of the disparity in sort of the uneven playing field, if you will, of the perpetrator as opposed to the child victim; beyond even playing field where the perpetrator is often in a position of trust, is often a position of authority, is often someone who was close to the child who the child looks up to for protection and any other need that any sibling that a child would look to, to a parent figure for.
“The perpetrators of these types of crimes often manipulate a child and abuse that position of trust to induce the child into not only participating in these acts, these sex acts with the adult perpetrator, but also to not disclose these acts.
“These acts are often, if not always, done in secret. They are often, if not always, done in private. They're often, if not always, done when the perpetrator and the child are alone.
“These are not things that the perpetrator is going to discuss out in the open, because obviously he doesn't want anybody to know what he's doing. These are not things that the child is going to discuss, because often in these types of cases the child is afraid, the child thinks he or she has done something wrong, the child feels ashamed of all of these sex acts that an adult perpetrator is committing upon his or her bodies and the child fears rejection.
“The child fears the breakup of his or her home; any number of reasons why any child victim does not immediately disclose. And these types of-in these types of cases, it's almost customary that a child discloses late. The perpetrator knows it and that's how he keeps his cover.
“So with all of that said, the law tells us that these types of cases, conviction may be based upon the victim's testimony alone. That means the victim telling you what happened to her.”
The prosecutor later commented on perpetrators of sex crimes against children, noting that they “think they are cunning, they think they are crafty and they think they can talk theirself [sic ] out of trouble simply because they've gotten away with it for so long. And that's what we have here. That's why we have the defendant's confession, because the defendant, like almost every other perpetrator of sex offenses on a child, thought he could talk his way out of it.”
Mr. George, in his argument, first focused on defendant's statements in the interviews with the sheriff's deputies. He gave reasons, other than guilt, why defendant said the things that he did in the interviews. He then turned to questions regarding A.O.'s credibility, including reasons why members of the family would want to see defendant prosecuted and A.O.'s recanting of the claims she made against defendant.
In her rebuttal closing argument, the prosecutor noted that Mr. George “said how [A.O.'s] life was messed up. Well, yeah, that's true. And we all know how vulnerable [A.O.] was. And we all know how vulnerable victims of child sexual abuse often are. That specifically is what adult abusers of children target. They target vulnerable victims. They target victims who don't have the support structure that is designed there to protect her․” At this point, the trial court sustained its own objection to the argument, noting that there was no evidence to support it.
While argument generally is limited to matters in evidence, the prosecutor also may argue matters based on common knowledge or experience. (People v. Cunningham, supra, 25 Cal.4th at p. 1026.) To a certain extent, the matters the prosecutor argued were ones of common knowledge or experience.
In People v. Sandoval (2008) 164 Cal.App.4th 994, for example, the court discussed the admissibility of expert testimony as to child sexual abuse accommodation syndrome to rehabilitate an abuse victim's credibility when the defense has suggested a delay in reporting is inconsistent with a claim of abuse. (Id. at p. 1001.) The court noted that “ ‘where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust. Where an alleged victim recants his story in whole or in part, a psychologist could testify on the basis of past research that such behavior is not an uncommon response for an abused child who is seeking to remove himself or herself from the pressure created by police investigations and subsequent court proceedings. In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony. [Citation.]’ [Citation.]” (Id. at p. 1002.)
In other words, certain information about how child molesters and their victims act are matters of common knowledge and experience. That child molesters operate in secret, for example, that they may use their positions of trust or authority to intimidate their victims into remaining silent, are matters which have been discussed in the media, both in connection with high-profile molestation cases and in television shows and movies.
To the extent the prosecutor argued matters not of common knowledge and experience, and assuming this constituted misconduct, the question before us is whether defendant was prejudiced thereby. We conclude he was not.
It is true, as defendant points out, the case was basically a credibility contest between defendant and A.O. But it was not the prosecutor's attempt to bolster A.O.'s credibility which condemned defendant; it was his own admissions.
Defendant acknowledged in A.O.'s telephone call that he “probably did a little bit um more than what I should,” but he claimed he did not mean anything bad by it. He also acknowledged using a vibrator on A.O., but claiming it “wasn't a sexual thing.”
In his interviews with the sheriff's department, after denying touching A.O.'s vagina, he acknowledged rubbing the outside of A.O.'s vagina about three times. He said it made him sick and he was sorry about it. He then added that the last time it happened was “[a]bout the time I quit doing speed, probably.” He later admitted that he touched A.O.'s vagina “[u]nder ten times.” He knew it wasn't right but kept doing it “[b]ecause it felt good and because she liked it ․ I guess.”
Defendant said he apologized to A.O. in the telephone call because “I know it was wrong.” He then admitted, in tears, that he was guilty of putting his fingers on A.O.'s vagina and moving them so she would be stimulated. He explained, however, that he “was doing speed at the time and, and I know that's not an excuse. It's just that when I do speed, it makes me do ․ more things like this, some things like that, you know․”
Despite his tearful confession in the interview, at trial he claimed that in the interview when asked about why he touched A.O.'s vagina, “I probably made up something.” In reality, he did not touch her vagina but he was “trying to figure out what I can say to get to move beyond this.” He was “trying to think of an excuse [the detective] would go for at the time.” He added, “I really-I really don't think I was crying on any of the time, but that's what-you know-I'm saying-that's not an excuse for-nothing is an excuse for that․”
If anything destroyed defendant's credibility, it was defendant himself, not the prosecutor's argument. It is not reasonably probable defendant would have been acquitted had the prosecutor not included improper material in her argument. Defendant therefore is not entitled to reversal based on prosecutorial misconduct during argument. (People v. Hill, supra, 17 Cal.4th at p. 844.)
2. Cross-examination
During the prosecutor's cross-examination of defendant, the trial court had the jury step into the jury room. It then warned “the people in the audience, if there's any more outburst, you will be excluded from the courtroom.” It also admonished the prosecutor, “[Y]ou have to stop yelling. You are screaming. It's not an appropriate tone of voice in a courtroom.”
The prosecutor later questioned defendant about his admission in the telephone call by A.O. that he used a vibrator on her. He explained that he was not referring to a sex device but was “talking about vibrators, massaging vibrators, three-spider prong things.” A short time later, the prosecutor returned to the issue of the kind of vibrator defendant used on A.O. She referred to it as a sex toy, and defendant reiterated that “a sex toy is not a vibrator, not a massager. I'm talking about different things.” The following day, the prosecutor returned to the issue of the vibrators. The trial court instructed her to call them “massagers.” She then started to ask defendant about “[t]he vibrators that you now call massagers.” The court interrupted, stating: “Court sustains its own objection because the defense denies using that. Ma‘am, just call them massagers and then you can argue what they mean․ You are arguing with the witness.”
The prosecutor's questions were not disparaging or insulting. The prosecutor was challenging defendant's credibility, not his character. Contrary to defendant's claims, the questions did not rise to the level of “ ‘rude and intemperate behavior [which] violates the federal Constitution [because] 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.]’ ” (People v. Gionis, supra, 9 Cal.4th at pp. 1214-1215.)
In any event, it is not reasonably probable that defendant would have been acquitted had the prosecutor refrained from arguing with him over the nature of the vibrators/massagers he used on A.O. Consequently, there was no prejudicial misconduct. (People v. Travis, supra, 129 Cal.App.2d at p. 39.)
DISPOSITION
The judgment is modified to provide a consecutive term of two years for each violation of section 288, subdivision (a), counts 3 through 11, for a total of 18 years on these counts. As so modified, the judgment is affirmed. The petition for writ of habeas corpus is denied. The clerk of the court is directed to prepare a modified abstract of judgment and forward a copy to the Department of Rehabilitation and Corrections.
We concur:
FOOTNOTES
FN1. Unless otherwise specified, all further statutory references are to the Penal Code.. FN1. Unless otherwise specified, all further statutory references are to the Penal Code.
FN2. The quoted material is taken from CALCRIM No. 1120. The language in CALCRIM No. 1110 differs, but the italicized portion is the same.. FN2. The quoted material is taken from CALCRIM No. 1120. The language in CALCRIM No. 1110 differs, but the italicized portion is the same.
FN3. Defendant notes that the challenged language does not appear in CALJIC Nos. 10.41 and 10.42, the counterparts to CALCRIM Nos. 1110 and 1120.. FN3. Defendant notes that the challenged language does not appear in CALJIC Nos. 10.41 and 10.42, the counterparts to CALCRIM Nos. 1110 and 1120.
FN4. Defendant was represented by new counsel.. FN4. Defendant was represented by new counsel.
JACKSON, J.
PERLUSS, P. J. ZELON, J.
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Docket No: B210963
Decided: February 03, 2010
Court: Court of Appeal, Second District, California.
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