P. v. Hernandez

Filed 12/2/08 P. v. Hernandez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Rogelio Torres Hernandez was convicted on two counts of committing lewd and lascivious acts on his stepdaughter, a child under the age of 14. (Pen. Code, 288, subd. (a).) He was sentenced to a term of six years in state prison.

On appeal, defendant raises various claims of error. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim was two years old when her mother met defendant. As time passed, the victim considered defendant to be her father. When her mother and defendant separated, the victim and her half siblings--defendants biological children-- often visited defendant at a two-bedroom duplex that he shared with two other men.

One night, when the victim was 12 years old and staying in the room she shared with her half siblings and defendant at his duplex. She fell asleep while fully dressed in a shirt, sweatshirt, bra, jeans, and underwear. She later awoke to find that she was wearing only her bra and underwear and that defendant was on top of her. She asked him what he was doing. He did not respond; instead, he took off her underwear. The victim hit defendant in the nose after he refused her request to stop what he was doing to her. But he continued assaulting her, putting his finger and then his penis in her vagina. After moving his penis back and forth inside the victims vagina for about three minutes, defendant went to the bathroom. The victim then put her clothes back on and lay down next to her half sister.

At trial, one of defendants roommates, Octavio Navarro, testified that he witnessed the sexual assault through the bedroom window when he went outside the duplex around midnight to urinate. As he walked by the window of defendants bedroom, Navarro looked inside through a gap in the blinds and, lit by the glow of the television, saw defendant making love to the victim.

Navarro, who was estranged from his wife, called her, left a message saying he needed to tell her something, and eventually told her what he had seen through the window. Because Navarros wife spoke better English than Navarro, she contacted the police and reported the assault. About 30 minutes later, Navarro told a Spanish speaking officer what had occurred. As Navarro said he had done, both investigating officers looked through the bedroom window and confirmed that they could see inside through gaps in the blinds.

When officers initially spoke with the victim, she denied having been assaulted by defendant. She later confirmed Navarros report of what had occurred. At trial, the victim testified that she initially lied to the officers because she was scared.

A sexual abuse examination performed by a physicians assistant resulted in an indeterminate finding. However, the victims statements to the assistant regarding the assault were consistent with the second statement she had given to the officers.

At trial, the defense attempted to discredit the victim by emphasizing inconsistencies in her statements about the assault. Defense counsel discounted as unreliable the testimony of Navarro because, counsel asserted, photographs of the room where the victim said she was assaulted showed no gaps in the blinds and no missing blinds through which Navarro could have seen inside the bedroom. According to counsel, Navarro fabricated his report of the assault in order to spend time with his wife. Counsel also asserted that the officers, with the prosecutors knowledge, concocted the claim that they went outside and looked into the room through a gap in the blinds. The falsity of their testimony was evident, counsel argued, because neither officer included this in the report.

DISCUSSION

I

Defendant contends he was denied due process because, in his view, the prosecutor knowingly used false testimony by Navarro and the officers to convict defendant. (Carothers v. Rhay (1979) 594 F.2d 225, 229 [a conviction violates the Fourteenth Amendment if it is obtained by the use of perjured testimony which the prosecutor knows to be false or later discovers to be false and allows to go uncorrected].) The claim is forfeited because he did not raise the constitutional objection at trial. (People v. Marshall (1996) 13 Cal.4th 799, 830831; People v. Morrison (2004) 34 Cal.4th 698, 714, citing People v. Marshall, supra, 13 Cal.4th at pp. 830-831.) In any event, the contention fails on the merits.

We have viewed the photographs introduced at trial and, contrary to defendants claim at trial and on appeal, they do not show that it was physically impossible for Navarro and the officers to have looked through the blinds and seen defendant and the victim in the bedroom. Actually, the photographs show gaps in between some of the vertical shades and a gap at the bottom of the shades.

In convicting defendant after hearing the testimony of Navarro and the officers, and viewing the photographs, the jury necessarily found to be credible their testimony that they could see inside the bedroom through gaps in the vertical blinds. Substantial evidence supports that credibility determination. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Clark (2000) 82 Cal.App.4th 1072, 1083.)

Because the evidence does not support defendants claim that the prosecutor knowingly presented false testimony, there is no merit to his contention that his right to due process of law was violated.

Also without merit is defendants suggestion that his conviction is undermined (1) by inconsistencies in the officers testimony, (2) by what defendant says was Navarros agenda, and (3) by variances in the victims account of the incident. (People v. Young (2005) 34 Cal.4th 1149, 1181 [mere conflicts and inconsistencies in testimony believed by the jury do not undermine its factual determinations; unless testimony is physically impossible or inherently improbable, it is sufficient to support a conviction].) Indeed, the evidence of defendants guilt was strong.

II

Defendant also claims the prosecutor committed misconduct during closing argument when, after explaining why the evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty as charged, the prosecutor told the jurors: [O]nce you get back in there, that presumption of innocence is shed. He has been proven guilty beyond a reasonable doubt. [] Once you start deliberating, he no longer stands presumed innocent. The proof has been presented.

A prosecutors conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury.  Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Morales (2001) 25 Cal.4th 34, 44.) Acts of prosecutorial misconduct do not justify reversal of a defendants conviction unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839.)

To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.] (People v. Earp (1999) 20 Cal.4th 826, 858.)

Defendant contends the prosecutors argument quoted above was egregious error that wrongly told the jurors not to apply the presumption of innocence, thereby reducing the prosecutions burden to prove its case beyond a reasonable doubt.

The claim of error is forfeited because no objection was made at trial to the argument challenged on appeal. (People v. Earp, supra, 20 Cal.4th at p. 858.) In any event, construed in context, the prosecutors argument regarding the presumption of innocence was inartful but not misconduct.

At the beginning of his opening summation, the prosecutor stated he would talk about the law to be applied by the jurors, said he would then talk about how the evidence fits in with that law, and stated when you [the jurors] consider all of it [the evidence] together, the only reasonable conclusion is that [defendant] is guilty of the charges that hes been accused of. The prosecutor then proceeded to outline the elements of the charge and identify the evidence that, in his view, proved defendants guilt beyond a reasonable doubt. In discussing the victims testimony, he told the jurors, [i]ts up to you to decide if any of [the] inconsistencies [in her account of the incident] convince you that [she] is lying . . . . The prosecutor then explained why the jurors should find the victims testimony to be credible. Next, he talked about Navarros testimony and why it, too, was credible and proved defendants guilt. After highlighting the officers testimony corroborating Navarros statement that he could see through gaps in the window blinds, the prosecutor noted that the evidence of defendants guilt was bolstered by the fact that officers found a box of condoms next to the bed, an empty condom wrapper in a trash bag, and a piece of condom wrapper in the bedding on which defendant was accused of sexually assaulting the victim.

Defense counsels summation challenged the credibility of all the prosecutions witnesses, asserting the officers were biased, Navarro was lying, and the victim should not be believed because she had provided different versions of the incident and could not remember certain details. At the end of her argument, defense counsel stressed that defendant was presumed innocent and the prosecution had failed to carry its burden of proving him guilty beyond a reasonable doubt.

The comment of which defendant complains occurred in rebuttal, when the prosecutor responded to the defense argument. Disputing the argument that the witnesses lied, the prosecutor explained why the evidence showed otherwise. The prosecutor concluded by telling the jurors: Use the evidence . . . [in] coming to your decision; Look at all of it, and you come to only one conclusion, that the defendant is guilty beyond a reasonable doubt; And once you get back in there, that presumption of innocence is shed. He has been proven guilty beyond a reasonable doubt. [] Once you start deliberating, he no longer stands presumed innocent. The proof has been presented. [] And it is overwhelming, and there is nothing from the cross-examination or the defense closing argument to suggest that it happened any other way than how [the prosecution witnesses] described it.

Viewed in context, it cannot be said that the passage quoted above was a deceptive or reprehensible method[] to persuade the jury. (People v. Morales, supra, 25 Cal.4th at p. 44.) Rather, it was an inartful way of telling the jurors that the prosecutions evidence constituted proof of defendants guilt beyond a reasonable doubt and that jurors should find that it overcame the presumption of innocence.

Reasonable jurors would not have construed or applied the remark in an improper fashion. (People v. Morales, supra, 25 Cal.4th at p. 44.) And because of the strong evidence of guilt, it is not reasonably probable that defendant would have obtained a more favorable result if the challenged argument had not been made. (People v. Crew, supra, 31 Cal.4th at p. 839.) Therefore, defendants claim of reversible error fails.

III

Defendant chastises the trial court for not acting sua sponte to cure the prosecutors constitutional error. Aside from the fact that a trial judge is not required to identify as misconduct, or correct sua sponte, improper prosecutorial argument (People v. Bell (1989) 49 Cal.3d 502, 542), we have explained that there was no constitutional error. Thus, there was nothing to correct.

IV

We also reject defendants contention that his trial counsel was ineffective for failing to object to the egregious errors defendant now claims on appeal. It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel. (People v. Constancio (1974) 42 Cal.App.3d 533, 546.)

DISPOSITION

The judgment is affirmed.

SCOTLAND , P. J.

We concur:

SIMS , J.

BUTZ , J.

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