THE PEOPLE v. PAUL ENRIQUEZ DIZON (2011)

“THE COURT:  Nonresponsive.   Sustained.

“Q By Ms. Vo:  The question was, you continued to have a conversation with the girl who you knew was 14 years old;  isn't that correct?

“A I continued to have conversation.   I did not fully know who this person was.

“Ms. Vo:  Objection;  nonresponsive.   Move to strike.

“THE COURT:  Sustained as to the latter part.

[¶] ․ [¶]

“Q By Ms. Vo:  ․ this is a photo of a naked man․  Is that something you would normally send to a 14–year–old girl?

“A No.

“Q Did you think it was appropriate in this instance?

“A It was an adult chat room.   I don't know who it was.

[¶] ․ [¶]

“Q But the question was is it appropriate to send it to a 14–year–old girl?

“A No, it's not.

“Q And you sent it to her, actually?

“A Yeah. Did I know she was 14?

“Ms. Vo:  Objection;  move to strike as nonresponsive.

“THE COURT:  It's stricken.   Just answer questions.

[¶] ․ [¶]

“Q Isn't it true that after you had asked ‘TaylorGurl’ about whether or not she wanted to have sex with you that you actually asked if it would be okay that you meet her that very day to have sex with her?   Isn't that true?

“A Yes. But, again, we are fantasizing here.

“Ms. Vo:  Objection;  move to strike as being nonresponsive.

“THE COURT:  Stricken.

[¶] ․ [¶]

“Q And the text that you sent to her was sexual in nature;  correct?

“A If those were the fantasies, yes.

“Q That isn't my question, Mr. Dizon.   Move to strike, your honor.

“THE COURT:  Stricken.”

We conclude that the prosecutor's questions and argument were proper and, in any event, they resulted in no prejudice to appellant in the context of the strong evidence against him.   The prosecutor's questions were proper cross-examination given that appellant testified in his defense that he made numerous attempts to obtain more information about Taylor, and he never intended to engage in a lewd act with a minor.   The prosecutor's direct questions were intended to prohibit appellant from providing narrative answers that were inconsistent with the prosecution's evidence.   On each occasion when appellant attempted to explain his answer it was stricken as nonresponsive.   The prosecutor was testing appellant's credibility and had wide latitude in the scope, subject matter and technique of the questioning.  (In re Anthony P. (1985) 167 Cal.App.3d 502, 506–507.)   The prosecutor's precise questions prevented appellant from dictating the terms of the cross-examination and being neither deceptive nor reprehensible, did not constitute misconduct.  (People v. Chatman (2006) 38 Cal.4th 344, 382.)

During closing argument, the prosecutor stated, “The defendant is a sexual predator.   He's a pedophile who is a grown man, who went on the Internet to troll for young children who would be willing to have sex with him.”

2. Closing Argument

“[T]he prosecutor has a wide-ranging right to discuss the case in closing argument.”  (People v. Lewis (1990) 50 Cal.3d 262, 283.)   The prosecutor may discuss the facts and law as he or she sees fit, advance any theory fairly within the evidence and urge any conclusions deemed proper.  (People v. Hardy (1969) 271 Cal.App.2d 322, 329–330.)  “Counsel have a right to present to the jury their views of the proper deductions or inferences which the facts warrant.   Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel.”  (People v. Willard (1907) 150 Cal. 543, 552.)

It is well established that a prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial.  (People v. Bain (1971) 5 Cal.3d 839, 848.)   Appellant contends that the prosecutor should be held to a higher standard in her use of words because the term “pedophile” refers to a psychological diagnosis, but appellant also concedes that the term is frequently used in public.   The prosecutor's comments must be “evaluated in the context in which they were made, to ascertain if there was a substantial risk that the jury would consider the remarks to be based on information extraneous to the evidence presented at trial.  [Citation.]”  (People v. Mincey (1992) 2 Cal.4th 408, 447–448.)

A sexual predator is one who engages in conduct that is motivated by an unnatural sexual interest in children and directs that conduct towards a child with the intent to be observed.  (People v. Phillips (2010) 188 Cal.App.4th 1383, 1394.)   The evidence showed that appellant visited chat rooms on the Internet, engaged in a sexual conversation, transmitted pornographic photos (purportedly of himself), and arranged to meet and have sexual intercourse with a 14–year–old girl.   The prosecutor's statements were permissible arguments within the wide latitude afforded her in putting forth a reasonable view of the evidence and were neither deceptive nor reprehensible.  (People v. Letner and Tobin (2010) 50 Cal.4th 99, 179.)

Finally, no harm could have resulted.   Prior to opening statements and also before closing argument and the commencement of deliberations, the trial court told the jury that what the attorneys said in closing arguments was not evidence (CALCRIM No. 222).   We presume the jury followed this instruction, which was sufficient to dispel any prejudice created by the prosecutor's argument.  (People v. Waidla (2000) 22 Cal.4th 690, 725 [“The presumption is that limiting instructions are followed by the jury”];  People v. Mickey (1991) 54 Cal.3d 612, 689, fn.   17 [“The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions”].)

We cannot conclude that the prosecutor's argument was an impermissible comment upon the evidence.   Whether the inferences the prosecutor suggested were reasonable was for the jury to decide.  (People v. Letner and Tobin, supra, 50 Cal.4th at p. 179.)

C. Forfeiture

Respondent argues that these contentions were waived because prosecutorial misconduct is subject to a strict rule of forfeiture and appellant failed to object to the prosecutor's questions and failed to object during closing argument.

‘ “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.  [Citation.]’ ”  (People v. Hill (1998) 17 Cal.4th 800, 820.)   The record shows that defense counsel did not object to the complained-of questions and argument on the basis of prosecutorial misconduct, nor did he request an admonition based on this ground.   None of the exceptions to these requirements apply in this case, and the issue is therefore forfeited.   In any event, appellant's contentions are without merit.

IV. Ineffective Assistance of Counsel

Appellant contends his trial counsel provided ineffective assistance by failing to object to the prosecutor's compound questions during cross-examination of appellant, and failing to object to the prosecutor's closing argument that characterized appellant as a sexual predator and a pedophile.

To establish ineffective assistance of counsel, a defendant must prove that (1) counsel's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsel's failings, the defendant would have received a more favorable result.  (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694;  People v. Waidla, supra, 22 Cal.4th at p. 718.)

Because we have concluded that asking appellant compound cross-examination questions was not prosecutorial misconduct (People v. Chatman, supra, 38 Cal.4th at p. 382), therefore it was not objectively unreasonable for trial counsel to fail to object.   Also, because CALCRIM No. 222 properly instructed the jury that closing argument was not evidence and the jury would decide if the prosecutor's inferences were reasonable (People v. Letner and Tobin, supra, 50 Cal.4th at p. 179), it was not objectively unreasonable for trial counsel to fail to object to the prosecutor's closing argument.

Given the overwhelming evidence of appellant's guilt in this case, we conclude that there was no reasonable probability that had trial counsel made the objections now asserted, appellant would have obtained a more favorable verdict.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_, J.

DOI TODD

We concur:

_, P. J.

BOREN

_, J.

ASHMANN–GERST