P. v. Perez
Filed 1/15/14 P.
v. Perez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
OSCAR D.
PEREZ PEREZ,
Defendant and
Appellant.
G047463
(Super. Ct. No. 11HF2313)
O P I N I O N
Appeal
from a judgment of the Superior Court of
Orange County, Steven D. Bromberg, Judge.
Affirmed.
Siri
Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Erica A. Swenson and Laura A. Glennon, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury
convicted Oscar D. Perez Perez (defendant) of 22 counts of lewd acts with a
(Pen. Code, § 288, subd. (a)),
four counts of lewd acts with a child under the age of 16 (§ 288, subd.
(c)(1)), and found true allegations defendant committed sex crimes with
multiple victims under the One Strike law (§ 667.61, subds. (b), (c),
(e)(5)). The trial court sentenced him
to an indeterminate term of 330 years to life.
Defendant’s
sole challenge to the judgment is that the prosecutor committed prejudicial
misconduct during closing argument. We
find the contention meritless and affirm the judgment.
FACTS
Defendant
does not challenge the sufficiency of the evidence thus the facts may be
briefly stated. From 2007 until his
arrest in 2011, defendant, a priest at a Laguna Hills
church, molested several young boys who volunteered to be “ministers†at
various church services. The boys said
defendant committed acts of sodomy, oral copulation, touching and rubbing
penises, theirs and defendant’s, and open-mouthed kissing. The acts of molestation usually occurred when
the boys stayed overnight at defendant’s home, although the boys also said they
were uncomfortable when defendant would hug and kiss them on each cheek as a
form of public greeting.
After
his arrest, defendant initially denied any misconduct. However, he later admitted touching the penis
of two of the victims, but claimed he did so for the sole purpose of advising
their mothers about circumcision. He
also admitted to kissing one of the victim’s on the lips and that doing so had
not been sensible.
Five
boys testified at trial, and defense counsel
thoroughly cross-examined each boy. Defendant
called a girl who had also been a minister in the church to testify that one of
the victims seemed angry and upset the night before defendant’s arrest. Defendant also called an investigator to
testify one of the boys had disputed the accuracy of a police report, and the
victim’s initial statements that defendant had not touched him in an
inappropriate manner.
Defense
counsel argued his client had engaged in “noncriminal conduct†that had been
“transformed†into criminal conduct by hysteria and the undue influence of
police investigators. Defendant either denied
committing the acts, or denied having the requisite intent during the commission
of those acts, and he challenged the sufficiency of the evidence to prove
otherwise.
DISCUSSION
During
closing argument, the prosecutor focused on the
intent before discussing reasonable doubt and witness credibility. When the prosecutor discussed one particular
victim, a boy who testified defendant performed the funeral service for his
late father and admitted being angry with defendant, she said, “This is a 14 or
15-year-old whose dad is dead, the defendant did the service for his dad, and
he’s totally confused because this man is molesting him, and now we’re to
expect that he’s supposed to not be around the defendant and protect other boys
like he’s some super figure in our movies?
That’s not real life. He’s
allowed to be mad at the defendant. [¶]
You know, where is the part in this case where we’ve heard this is how a sexual
assault victim is supposed to act, this is what they’re supposed to do? That’s why I talked about that in jury
selection, ‘Are you going [to] have preconceived notions of what someone is
supposed to do?’ We heard a woman in jury selection say, ‘I’m just disclosing right now,
I was raped.’ She said that. So we’re supposed to put a definition on
victims?†(Italics added.) A defense objection on grounds the prosecutor
made an “improper argument†was overruled.
On
appeal, defendant contends the above-italicized portion of the prosecutor’s
argument constitutes improper vouching for the credibility of a witness and/or
improper references to matters outside the record. We disagree.
“‘Under
California law, a prosecutor commits reversible misconduct if he or she makes
use of “deceptive or reprehensible methods†when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a
prosecutor that does not result in the denial of the defendant’s specific
constitutional rights . . . but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action
“‘so infected the trial with unfairness as to make the resulting conviction a
denial of due process.’†[Citation.]’ [Citation.]†(People v. Fuiava (2012) 53 Cal.4th
622, 679.)
“If a
prosecutorial misconduct claim is based on the prosecutor’s arguments to the
jury, we consider how the statement would, or could, have been understood by a
reasonable juror in the context of the entire argument. [Citations.]†(People v. Woods (2006) 146 Cal.App.4th
106, 111.) “‘“[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.] It is also clear that counsel during summation
may state matters not in evidence, but which are common knowledge or are
illustrations drawn from common experience, history or literature.†[Citation.]’†(People v. Ward (2005) 36 Cal.4th 186,
215 (Ward).)
While a
prosecutor may not vouch for the credibility of witnesses
or otherwise bolster the veracity of their testimony by referring to evidence
reliability of prosecution witnesses are based on the “facts of [the]
than any purported personal knowledge or belief,†[her] comments cannot be
characterized as improper vouching. [Citations.]’ [Citation.]†(Ward, supra, 36 Cal.4th at p. 215.)
Here, the prosecutor’s
argument regarding the credibility of sex crime victims who do not immediately
report the crime did not amount to improper vouching. The prosecutor did not
suggest her belief in the victims’ credibility was based on any facts
knowledge. (Compare People v. Turner
(2004) 34 Cal.4th 406, 433 [prosecutor referred to his
prior experience with the witnesses].) In
the context of her argument, it was clear the prosecutor was referring to the difficult task of assessing the
credibility of sexual assault victims in general, not that one particular
victim was any more or less credible because of delayed reporting. Thus, the prosecutor “properly relied on
facts of record and the inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief. [Citations.]â€
(People v. Medina (1995) 11
Cal.4th 694, 757.)
As indicated
by the California Supreme Court, a prosecutor may state matters not in evidence
that are common knowledge or are illustrations drawn from common experience. (People v. Stanley (2006)
39 Cal.4th 913, 951-952) In this case,
the prosecutor relied on an example common to all members of defendant’s jury
to illustrate her point. Under the
circumstances, the prosecutor’s reference to what had occurred during voir direct
does not amount to misconduct.
Defendant’s
reliance on People v. Woods (2006)
146 Cal.App.4th 106 (Woods) and
Cal.App.4th 813 (Hall), is
misplaced. In Woods, the prosecutor committed numerous instances of misconduct in
closing argument by implying that 12 unidentified, mostly non-testifying police
officers, would testify to the same facts as the officers who did testify. (Id.
at p. 115.) Thus,
pervasive and involved affirmative representations by the prosecutor concerning
the substance of testimony and facts outside the record, not merely an example designed
to assist the jury make a judgment regarding witness credibility.
In
testified that he and his partner had arrested the defendant for being under
the influence of cocaine, and then found cocaine in the defendant’s pocket when
they searched him. (Id. at p. 815.) Defense counsel challenged the testifying
officer’s credibility and pointed out that the officer’s partner had not been
called as a witness. (Id. at p. 816.) In rebuttal, the prosecutor argued the
partner’s testimony would have been “repetitive.†(Ibid.)
Thus, in Hall, as in Woods,
the prosecutor in effect told the jury that
called, would have
testified exactly as
Officer Williams did,
in a manner
prosecution.â€
something that occurred during voir dire as an admonition against the notion
that all sexual abuse victims who wait to report the crime are inherently
unreliable.
Moreover,
the trial court instructed the jury nothing the attorneys say during opening
and closing argument is evidence (CALCRIM No. 104), and we presume jurors are
intelligent people capable of understanding the instructions and applying them
to the facts of the case. (
Cal.4th 109, 130.)
Finally,
even if we were to assume misconduct occurred, defendant cannot establish any
prejudice. The People bear the burden of
proving beyond a reasonable doubt that misconduct did not contribute to the
verdict. (Woods, supra, 146 Cal.App.4th at p. 117.)
As explained above, the evidence defendant
committed the charged crimes was overwhelming.
It is inconceivable the prosecutor’s brief reference to statements made
by a potential juror during voir dire had any effect on the verdict.
DISPOSITION
The
judgment is affirmed.
THOMPSON,
J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
name="_ftn1" title=""> [1] All further statutory
references are to the Penal Code.
