Filed 12/17/12 P. v. Cortez CA5
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERTO
CORTEZ,
Defendant and
Appellant.
F063795
(Super.
Ct. No. CRF34387)
APPEAL
from a judgment of the Superior Court of
County. Eric L. DuTemple, Judge.
Carol
Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
A jury convicted appellant, Roberto Cortez, of committing
a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288,
subd. (a); count 2), and appellant admitted enhancement allegations that he had
served three separate prison terms for prior felony convictions (Pen. Code, §
667.5, subd. (b)). The jury was unable
to reach a verdict on a charge of committing a forcible lewd or lascivious act
upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1); count 1), and
pursuant to the prosecution’s motion, the court dismissed the count 1
charge. The court imposed a prison
sentence of 11 years, consisting of the eight-year upper term on the
substantive offense and one year on each of the three prior prison term
enhancements.
Appellant’s appointed appellate
counsel has filed an opening brief
which summarizes the pertinent facts, with citations to the record, raises no
issues, and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Appellant himself has filed with the court a document, to which we will
refer as a letter brief, in which it appears he argues that he was denied his
right to the effective assistance of trial and appellate counsel, and that the
prosecutor committed misconduct. We affirm.
FACTS
title="">[1]
In December
2010, Y.’s household included her daughter, referred to at trial as Jane Doe
(Jane), then 12 years old; Y.’s “babies,†i.e., her twins, then two years old,
and her youngest daughter, then one year old; and appellant, her husband.
babies. He is not Jane’s biological
father.
On the
morning of December 27, 2010, as Y. was getting ready to go to work, appellant
asked her to call Jane to come to the couple’s bedroom, where the babies also
slept, to help with the babies. Y. did
so, Jane came into the room, and Y. left for work.
Later that
afternoon, after she had come home from work, Y. found Jane in the corner of a
room, crying. When Y. questioned her as
to what was wrong, she mentioned appellant’s name. Eventually, Y. asked Jane if appellant “had
sex with [her],†and Jane said “‘Yes.’â€
Y. questioned Jane further, and Jane told Y. “her back was against … his
penis,†“there was a lot of movement,†and appellant “touched her
private .…†Jane also told Y. that
she changed her clothes because she “had a lot of sticky stuff .…â€
At some
point on the afternoon of December 27, Y. noticed appellant’s boxer shorts hanging
on the shower door. This was unusual
because during their marriage “he’s never done laundry .… So for him to do something like that, it was
not right.†A police officer testified
that appellant stated he hand-washed his shorts because he had set them on the
floor and they had gotten wet.
Jane
testified to the following: One morning
in December 2010, when she first woke up in her bedroom, her mother asked her
to help appellant with the babies. Jane
entered her mother’s room; appellant and the babies were there. After changing a diaper on one of the babies
and giving her a bottle, she lay down on the bed. She was wearing pajama bottoms and a shirt. Appellant was also lying on the bed. He was wearing underwear. He “skidded close†to Jane and began
“hugging†her. He “push[ed] [Jane] close
to him like really hard.†She could
“feel his privates†touching her “[b]etween [her] legs.†Appellant was “moving his [penis] between
[her] legs†and “moving [her] privates so he could touch it.â€
DISCUSSION
Appellant
charges the prosecutor with three instances of
impermissibly made reference to appellant’s decision not to testify. He relies on Griffin v. California (1965) 380 U.S. 609. There, the United States Supreme Court held
that “the Fifth Amendment … forbids … comment by the prosecution on the
accused’s silence .…†(
determined that the prosecutor at no time, either directly or indirectly,
referred to appellant’s decision not to testify. Therefore, his claim of Griffin error fails.
Second,
appellant argues that the prosecutor impermissibly vouched for the credibility
of one or more witnesses. Appellant
bases this claim on the following principle:
“A prosecutor may comment upon the credibility of witnesses based on
facts contained in the record, and any reasonable inferences that can be drawn
from them, but may not vouch for the credibility of a witness based on personal
belief or by referring to evidence outside the record. [Citations.]â€
(People v. Martinez (2010) 47
Cal.4th 911, 958.) Based on our review
of the record, we conclude that the prosecutor presented argument concerning
the credibility of witnesses, but in
doing so, did not impermissibly vouch for their credibility.
Finally,
appellant argues that the prosecutor failed to “correct†the testimony of a
“star†prosecution witness that contradicted that witness’s statements to
police.
“The applicable federal and state
standards regarding prosecutorial misconduct are well established. A prosecutor’s … intemperate behavior violates
the federal Constitution 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.†(
215-216, internal quotation marks omitted.)
Under this standard, any failure by the prosecutor to note
inconsistencies in a witness’s testimony did not constitute misconduct.
Ineffective Assistance of Counsel
To
establish a violation of the Sixth
Amendment right to the effective assistance of counsel, “a defendant must
show both that his counsel’s performance was deficient when measured against
the standard of a reasonably competent attorney and that counsel’s deficient
performance resulted in prejudice to defendant .…†(People
v. Lewis (2001) 25 Cal.4th 610, 674.)
Appellant argues that trial counsel was ineffective for failing to
object to the claimed instances of prosecutorial misconduct and that appellate
counsel was ineffective for failing raise the issue on appeal. These claims also fail. As demonstrated above, appellant’s claims of
prosecutorial misconduct are meritless.
Therefore, the failure to raise such claims, either at trial or on appeal,
did not constitute constitutionally deficient performance.
Appellant also argues that trial
counsel was ineffective because at trial he did not present evidence that Y.
committed perjury in a civil action, was “pregnant with another man’s baby,†and
has a “history of crying wolf, and sending suitors to prison.†None of this purported evidence is reflected
in the appellate record. Therefore,
appellant’s claims based on this evidence are not cognizable on appeal. (People
v. Barnett (1998) 17 Cal.4th 1044, 1183 [“review on a direct appeal is
limited to the appellate recordâ€].)
Independent Review of the Record
Following
independent review of the record, we have concluded that no reasonably arguable
legal or factual issues exist.
DISPOSITION
The judgment is affirmed.
name="_ftn1" title="">* Before
Levy, Acting P.J., Cornell, J., and Poochigian, J.
name="_ftn2" title="">[1] Our
factual summary is limited to the count 2 offense.
