P. v. Burgos




Filed 12/14/10 P. v. Burgos CA2/7





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN BURGOS, Defendant and Appellant.

B217426 (Los Angeles County Super. Ct. No. LA054588)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael C. Keller and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Benjamin Burgos appeals from the judgment entered following his conviction by a jury for the murder of his wife, Ana Larin Burgos, with true findings on the related firearm-use enhancements. Burgos contends the prosecutor’s egregious misconduct during closing argument requires the reversal of his conviction. We affirm.

factual and procedural background

1. The Disintegration of the Burgoses’ Marriage

Burgos[1] met Ana in 1994, and they married in 1997.[2] Burgos worked in real estate, first as a mortgage broker and then as a licensed agent; Ana worked at the Getty Museum. Their first child, a daughter, was born in May 1999, and the couple moved into a home in the San Fernando Valley. After their daughter was born, Burgos and Ana began to have financial problems; and their relationship became strained. Matters worsened when their son was born in 2003. Because Ana was working full-time and attending school in the evenings, Burgos was providing most of the care for the children; and his business was suffering.
In January 2006 Burgos and Ana went to Las Vegas for a few days, leaving the children with Ana’s parents. On their return their daughter complained her grandfather had touched her inappropriately. Burgos became angry and wanted to press charges against Ana’s father, but Ana refused. The issue became a recurring topic in arguments between Ana and Burgos.
In April 2006 Burgos suffered a serious anxiety attack and was taken to the hospital by paramedics. Although a doctor prescribed the drug Ativan to remedy his anxiety, Burgos refused to take it. In June 2006, after Ana reported seeing a man attempting to break into their home, Burgos purchased a revolver for self-defense and learned to use it at a local shooting range.
Burgos and Ana argued at least twice a week through the remainder of 2006. Ana had been accepted into an accelerated academic program, which required her to spend even more time away from home. Over the Thanksgiving holidays they heatedly discussed separating, and Burgos again threatened to have Ana’s father prosecuted. A similar argument occurred on New Year’s Eve and again on January 5, 2007. On that occasion, asked why she had stopped wearing her wedding ring, Ana told Burgos she was confused and did not love him anymore.[3] She stayed away from home one night and then asked Burgos to move out of the house.
Although Ana had denied it, Burgos suspected she was having an affair. Burgos contacted a law firm called Dadslaw, Inc., which specializes in fathers’ rights. An attorney at Dadslaw suggested Burgos keep a written log of the events relating to the breakup of his marriage. Burgos also collected emails from Ana’s account revealing her plans to move out of the home and leave the children with Burgos. Burgos assembled his notes, the emails and copies of forms from Dadslaw in a manila envelope. He also made an appointment to consult with a marriage and family therapist.
On the morning of January 11, 2007 Burgos and Ana again argued about her failure to assist in the care of the children. Ana left for work. According to Ana’s sister, Ana met with a therapist and then called the sister to inform her she had decided to divorce Burgos and would tell him that night. After taking the children to school, Burgos went to the office of the therapist for his appointment. According to Burgos, he felt much better after talking with the therapist and sent several emails to friends acknowledging his marital problems and advising his friends he intended to move on with his life.

2. The Shooting

a. The prosecution’s evidence

Shortly after midnight on January 12, 2007 Burgos called the police emergency number and told the operator, “I just killed my wife.” The operator, who heard muffled, gurgling sounds, asked, “What’s that noise‌” Burgos answered, “That’s my wife. She’s done. She’s done.” Moments later, the operator heard a gunshot and asked, “What’s that noise, Sir‌” Burgos said, “It’s my wife. You need to get here now. I’m done. I’m done with this. That’s enough of her fucking abuse.” Another gunshot was fired. The operator told Burgos to put down the gun and asked whether his wife was still breathing. He answered, “No.” He then told the operator he had placed the gun on the front porch of the house. An audio recording of this call was played for the jury.
Burgos did not resist when the responding officers arrived and arrested him. He told one officer, “I shot her. She was fucking with my head.” He also asked them not to take his children. Other officers entered the house and saw Ana’s body lying on the couch with her arms folded, covered with a blanket. Ana had been shot four times: One of the bullets entered her right cheek and exited near her right ear; a second bullet went between her lips, through the upper jaw and exited near her left ear; a third bullet penetrated her chest and exited from her back; a fourth bullet entered the midline of her forehead and was found in her hair. All bullets had been fired at close range, and Ana’s hands lacked any defensive wounds. According to the medical examiner, the bullet to Ana’s forehead must have been the last shot fired because it was “rapidly fatal” and she would not have been able to make the sounds heard on the recording of the call after it. A police detective testified Ana must have been lying on the couch when she was shot.
At the police station Burgos asked one of the officers whether the police had retrieved the manila envelope from his desk, explaining, “You need to get the envelope from my desk because I’ve documented everything that has happened between myself and my wife.” The detective found the envelope on top of the desk, along with the business card for Burgos’s therapist. The detective also found two lockboxes on the upper shelf of the master bedroom closet. One of the lockboxes was empty except for an earplug and a gun lock. The other lockbox contained a box of .38 caliber ammunition, which matched the caliber of the gun found on the front porch.

b. Defense evidence

According to Burgos’s testimony, on the evening of January 11, 2007 Ana came home around 8:30 p.m. The children were already asleep, and Burgos was getting ready for bed. He saw Ana using the computer in the office. They argued briefly, but Burgos went to bed and fell asleep. He was awakened by Ana slapping the bottom of his feet to rouse him. She pulled something from a dresser drawer and shoved it into his hands. It was the gun Burgos had believed was in the lockbox. She told him, “If you’re so damned depressed, why don’t you kill yourself‌ Shoot yourself.” She pulled him by the arm through the hallway into the living room, continuing to exhort him to kill either himself or her. Burgos testified he had the gun in his hand, and, while he was pulling the gun toward his head, it fired twice in rapid succession. He recalled pulling the trigger on those two shots although he did not realize the gun was pointed at Ana because it was dark and he was so confused and distraught. He never intended to kill her. When he realized she had been shot, he called the police emergency number and reported the shooting. He had no memory of the second two shots or of his conversation with the operator. He remembered placing one of the children’s blankets over Ana but did not remember putting the blanket on her that covered her. Nor did he remember folding her arms on her chest after shooting her. On cross-examination Burgos admitted the shooting had not been an accident; he did not want to kill her but had shot her in the midst of an argument while he was angry and upset.
The defense also called several character witnesses who testified they had never known Burgos to be violent. Burgos’s therapist and a forensic psychiatrist testified Burgos suffered from depression and anxiety. In the opinion of the forensic psychiatrist, a traumatic event such as this shooting could have resulted in a dissociative state in which the shooter would not remember what he had done.

c. Rebuttal evidence

In rebuttal the People called Los Angeles Police Officer Kelly Artz to whom Burgos had made spontaneous statements shortly after his arrest. During the booking process, Burgos began to cry and told Artz he had been having problems with Ana. According to Burgos, they argued, and Ana told him the marriage was a lie and she wanted a divorce. She then took a gun out of the kitchen drawer, put it down on the kitchen counter and stated, “Just do it.” She went to lie on the couch but kept taunting him, “Just do it; I know you can’t do it.” He then shot her.

d. The verdict and sentencing

The jury acquitted Burgos on the charge of first degree murder but convicted him of second degree murder (Pen. Code, § 187, subd. (a)),[4] with true findings on the related firearm-use enhancement allegations (§ 12022.53, subds. (b)-(d)). Burgos was sentenced to an aggregate state prison term of 40 years to life, consisting of an indeterminate term of 15 years to life on the murder count, plus a consecutive term of 25 years to life for the personal and intentional discharge of a firearm causing death. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)) and a $200 parole revocation fine (§ 1202.45), which was suspended.

discussion

1. Governing Law

We review a trial court’s ruling regarding prosecutorial misconduct for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution only when 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.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (People v. Navarette (2003) 30 Cal.4th 458, 506; accord, People v. Morales (2001) 25 Cal.4th 34, 44.) Improper prosecutorial conduct includes suggesting the existence of facts outside the record or otherwise arguing facts beyond the evidence before the jury. (People v. Valdez (2004) 32 Cal.4th 73, 133 [“counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence”]; People v. Benson (1990) 52 Cal.3d 754, 794 [“prosecutor may not go beyond the evidence in his argument to the jury”]; People v. Woods (2006) 146 Cal.App.4th 106, 113 [“prosecutor may not suggest the existence of ‘facts’ outside of the record by arguing matters not in evidence”].)
However, “‘[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.’ [Citation.] 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. The appellate record, however, rarely shows that the failure to object was the result of counsel’s incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel’s actions or omissions can be explored.” (People v. Lopez (2008) 42 Cal.4th 960, 966; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

2. The Allegedly Improper Argument by the Prosecutor

Burgos contends the prosecutor repeatedly argued facts that either had not been proved or were not reasonable inferences from the evidence. The prosecutor, asserting Burgos had planned to kill Ana, argued to the jury that, while Ana was “begging for her life,” Burgos “walks up to her and puts a bullet in her forehead, executing her.” Elsewhere he argued Ana had “played dead” to avoid being shot again and Burgos had “let her suffer” before firing the final two shots because, “if she showed she was alive, she would get shot again.” Later, Burgos “gets the keys to the gun, goes and gets the gun, loads it, and goes about his grisly scheme. While she’s asleep on the couch, he stalks her, and, like any predator, the prey was asleep, had no idea what was about to come, and while she slept, he shot.” Burgos contends these were speculative inferences unsupported by the physical evidence or testimony.
Burgos further contends the prosecutor argued evidence previously stricken by the court, citing as the example the court’s order striking a comment by a police officer that the envelope on the desk “appeared almost to have been staged.” Referring to the officer’s testimony about his discovery of the envelope, the prosecutor argued, “How about this packet‌ This packet that is posed perfectly . . . because he knew the police would be investigating later . . . . Definitely looked staged, without a doubt.”
Next, Burgos contends the prosecutor improperly equated the defense function with confusing the jury and the prosecutor’s function as a search for the truth. The prosecutor told the jury, “When the defense gets up here, it’s kind of a game of smoke and mirrors . . . it’s a shell game because, under one of the shells is the facts, and under the other shell is LAPD and under the other shell is the D.A.’s office, and if you move the shells around enough . . . , you’re going to pick the wrong shell. Don’t give in to their shell game. Keep your eyes on the facts, only, not what the facts could have been and not what the facts might have been.”
Finally, Burgos claims the prosecutor improperly attacked his counsel’s argument instead of making an objection. The incident occurred during defense counsel’s argument. The prosecutor objected the argument was improper. The trial court instructed both counsel to avoid personal attacks on opposing counsel and directed them to object if they believed an improper personal attack had been made. During his rebuttal argument, the prosecutor commented, “Now, when counsel started his closing argument, first thing he did is he attacked me, my ethics . . . . And the easiest thing would be for me to get up here and return the favor, but it reminds me of, when I was young, my aunt had a cat, and she always told me, ‘don’t ever corner him . . . he’s going to strike back at you. He’s going to cut you up and claw at you.’ And you know what‌ Let’s just leave it at that.”

3. The Claim of Prosecutorial Misconduct is Forfeited

Despite all of these allegedly improper comments by the prosecutor, defense counsel did not once object. Instead, in one instance he pointed out the improper argument to the jury, acknowledged he had not objected and reminded the jury not to be swayed by sentiment but to apply the law to the facts. In another, after the court acknowledged the evidence was sufficiently varied to allow diverging inferences, defense counsel, a seasoned attorney who had tried approximately 285 cases, stated, “For the record, I—tactically, I don’t like to object in [the] prosecutor’s arguments.”[5] This tactical decision by defense counsel not to object to potentially improper argument, even after the trial court had reminded both counsel to do so if opposing counsel made an improper argument, compels us to conclude the issue of prosecutorial misconduct is forfeited. (See People v. Lopez, supra, 42 Cal.4th at p. 966.)
Even were we not inclined to find forfeiture on this issue, none of the allegedly improper comments involved the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Navarette, supra, 30 Cal.4th at p. 506.) While aggressive, the argument never exceeded the prosecutor’s broad discretion to argue the inferences to be drawn from the evidence (see, e.g., People v. Cole (2004) 33 Cal.4th 1158, 1203 [“prosecutors ‘have wide latitude to discuss and draw inferences’”; whether inferences are reasonable is for jury to decide]; People v. Hawkins (1995) 10 Cal.4th 920, 956-957 [victim shot in head from close range and absence of struggle described as “execution-style” murder] overruled on another point by People v. Blakeley (2000) 23 Cal.4th 82, 89) or to comment on the theories advanced by the defense. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47 [“[a]n argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper”]; People v. Marquez (1992) 1 Cal.4th 553, 575-576 [prosecutor’s reference to defense as “smokescreen” not misconduct]; People v. Young (2005) 34 Cal.4th 1149, 1193 [prosecutor’s characterization of defense counsel’s argument as “idiocy” was fair comment on counsel’s argument].) The opposing parties in this case postulated widely different theories in an effort to secure the best possible verdict in their favor, that is, first degree murder for the prosecution and voluntary manslaughter for the defense: It is no surprise the jury rejected both theories and convicted Burgos of second degree murder.

disposition

The judgment is affirmed.


PERLUSS, P. J.


We concur:



WOODS, J.



JACKSON, J.
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