Filed 8/25/26 P. v. Morales CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089561
Plaintiff and Respondent,
(Super. Ct. No. BF199120A)
v.
WILDSON ERIBERTO TOL MORALES,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Tiffany E.
Organ-Bowles, Judge.
Jake E. Stanton, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and
Jessica A Eros, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2024, appellant Wildson Eriberto Tol Morales had a heated argument with his
wife, who locked herself inside a bedroom with their one-year-old toddler. Appellant
forced open the locked bedroom door with scissors, and, during the incident, his wife’s
fingers were cut on the scissors. Their teenaged son called 911 and reported that his
father was hitting his mother. The incident ended when the teenaged son intervened and
choked his father into unconsciousness. The wife reported to responding officers that
night that appellant tried to stab her while she was holding the toddler.
The jury convicted appellant of four felonies:
(1) Corporal injury to a spouse (Pen. Code, § 273.5, subd. (a); count 1).1 The
jury found true that appellant personally used scissors as a deadly or dangerous weapon
(§ 12022, subd. (b)(1));
(2) Assault with a deadly weapon (§ 245, subd. (a)(1); count 2);
(3) False imprisonment by violence (§ 236; count 3); and
(4) Child abuse (§ 273a, subd. (a); count 4).
For the corporal injury to his wife, appellant was sentenced to prison for the
midterm of three years, with a consecutive one-year enhancement for using the scissors
as a deadly and dangerous weapon. For the child abuse, appellant received a consecutive
term of one year four months. Midterm sentences were imposed in the remaining two
counts, which were stayed.
Appellant raises two issues in the present appeal. He contends the trial court erred
in failing to instruct the jury on misdemeanor child abuse. He also argues the prosecutor
made improper comments to the jury. We reject appellant’s claims and affirm.
1 All future statutory references are to the Penal Code unless otherwise noted.
2.
BACKGROUND
We summarize the relevant facts pertinent to the issues raised on appeal, viewing
the record in the light most favorable to the judgment. (See In re Jesus O. (2007)
40 Cal.4th 859, 861; People v. Johnson (1980) 26 Cal.3d 557, 578.)
I. The 911 Call.
On April 4, 2024, at approximately 1:00 a.m., law enforcement received a 911 call
from appellant’s 14-year-old son. The son reported that his father was drunk and “hitting
my mom.” The 911 operator heard a baby crying in the background. The son stated that
his “dad and mom are probably fighting right now,” the situation was “escalating” and
“my mom is calling for help.”
II. Law Enforcement’s Response.
A short time after the 911 call, multiple officers responded to the scene. Appellant
was found lying unconscious inside the residence. He had no visible cuts or injuries.
Officers observed blood in various spots in the residence, including splatters on
the floor and in the hallway, bloody handprints on a door, blood on a wall, and bloody
fingerprints near a light switch. A pair of orange scissors with blood on the blade and a
half-pair of black scissors were found. Appellant’s wife had visible injuries that were
photographed.
III. The Police Interviews.
Officers separately interviewed the 14-year-old son and appellant’s wife; the
recorded interviews were played for the jury.
On the night of this incident, the son reported that he heard screaming, saw his
father hitting his mother, and she was calling for help. He saw his father “on top of” his
mother and he believed his father had scissors in his right hand. The son reported that he
put his father in a chokehold and pulled him off his mother.
In her recorded interview, appellant’s wife stated they had returned from a party,
appellant was “very drunk,” and he “wanted to start hitting” her. She reported locking
3.
herself in her bedroom. According to the wife, she was holding their one-year-old
toddler in her arms while appellant attacked her with orange and green colored scissors.
However, she denied that the toddler had been in danger. The wife reported that
appellant tried to stab her two to four times, she grabbed the scissors while still holding
the baby, and she cut her hands in the process. She yelled for her 14-year-old son to help
her, and her son came and grabbed appellant.
As seen on an officer’s body camera, appellant’s wife received medical attention
on the night of this incident from a first responder. It appears that she had a small cut
near her mouth, as well as cuts to fingers on her left hand. She declined to be taken to a
hospital.2
IV. The Video Recording of the Incident.
A video camera inside the residence captured part of the incident. When the
recording starts, the toddler is alone in the living room. The toddler appears to wander
into the room where his parents are arguing; loud voices can be heard, and a young child
can be heard crying.
Approximately one minute and 48 seconds into the recording, the toddler wanders
out and returns to the living room. At about two minutes six seconds, the 14-year-old son
is seen exiting his bedroom, crossing the hallway, and entering the opposite room. The
son is seen bending over and he pulls his father into the hallway, wrapping his arms
around his father’s neck in a chokehold. His father is not resisting, and he is quickly
subdued. It appears that appellant becomes unconscious during this chokehold. A short
time later, officers arrive on scene.
2 At the close of its case, the prosecution dismissed great bodily injury
enhancements (§ 12022.7, subd. (e)) that had been alleged in counts 1 and 2 regarding
appellant’s wife.
4.
At trial, a responding officer observed nothing unusual about the toddler, who had
no apparent injuries. However, there was a small amount of blood on the baby’s
clothing. The officer confirmed the toddler seemed “fine.”
V. The Trial Testimony.
At trial, both the son (now 15 years old) and appellant’s wife gave testimony that
differed in significant respects from their statements on the night of the incident. The son
testified that he had only a vague memory of the events. He denied seeing his father on
top of his mother, could not remember seeing his father with scissors, and was not sure if
he saw his mother bleeding. He recalled putting his father in a chokehold and taking him
to the ground but had “no idea” why he did so. He denied having any trauma from this
event or fearing his father.
Appellant’s wife largely recanted her original account. She denied that appellant
attacked her with scissors. The wife claimed that appellant had only been trying to open
the locked bedroom door with the scissors while she and the toddler were inside. She
admitted that appellant pulled her hair but denied that he grabbed her by the neck or tried
to stab her. She acknowledged both she and appellant had been drinking that night.
Appellant testified at trial. He denied attacking his wife with scissors. He claimed
he used the scissors only to try to open the locked bedroom door, and his wife cut herself
by pulling the scissors away. He asserted that his wife then charged him, and a mutual
hair-grabbing struggle occurred. He acknowledged that their son had intervened.
DISCUSSION
I. Any Potential Instructional Error is Harmless Regarding Misdemeanor Child
Abuse.
In count 4, appellant was charged with felony child abuse (§ 273a, subd. (a)). The
jury was instructed on the elements necessary for this charge.
5.
In the present claim, appellant contends the trial court erred in failing to instruct
the jury on the lesser included offense of misdemeanor child abuse. According to
appellant, this error was prejudicial, requiring reversal of count 4.
A. The applicable law.
Section 273a, subdivision (a), makes it a felony when “[a]ny person who, under
circumstances or conditions likely to produce great bodily harm or death, willfully causes
or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully causes or permits the
person or health of that child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health is endangered.”
The sole distinguishing element between felony and misdemeanor child abuse is
the level of risk to the child. Felony child abuse requires the child to be endangered
under circumstances or conditions “likely to produce great bodily harm or death.”
(§ 273a, subd. (a); CALCRIM No. 821.) In contrast, the misdemeanor applies to the
same conduct but under circumstances or conditions “other than those likely to produce
great bodily harm or death.” (§ 273a, subd. (b); CALCRIM No. 823.) The term “great
bodily harm” means “significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm.” Actual injury to the child is not required for a
felony conviction. (CALCRIM No. 821.)
Misdemeanor child abuse is a lesser included offense of felony child abuse.
(People v. Moussabeck (2007) 157 Cal.App.4th 975, 980.) A trial court has a sua sponte
duty to instruct on a lesser included offense when there is substantial evidence from
which a reasonable jury could conclude the defendant committed the lesser offense but
not the greater offense. (People v. Shockley (2013) 58 Cal.4th 400, 403; People v. Cook
(2006) 39 Cal.4th 566, 596.)
6.
B. Any presumed error is harmless.
The parties dispute whether the trial court was obligated to instruct the jury on
misdemeanor child abuse. In general, appellant highlights portions of the trial evidence
that minimized the severity of this incident. He argues that, for the toddler, the
circumstances were not likely to produce great bodily injury or death. In contrast,
respondent contends that the trial testimony was “unreliable” and did not amount to
substantial evidence warranting an instruction on misdemeanor child abuse.
We need not resolve the parties’ disagreement on this issue. Instead, we agree
with respondent that, even if the court had a duty to instruct the jury on misdemeanor
child abuse, any assumed error is nevertheless harmless under the state standard of
People v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, appellant bears the
burden to demonstrate prejudicial error. (People v. Sivongxxay (2017) 3 Cal.5th 151,
178; People v. Hernandez (2011) 51 Cal.4th 733, 746; People v. Alexander (2010) 49
Cal.4th 846, 910.)
To demonstrate prejudice in this matter, appellant contends this was a “close” case
and there is a reasonable chance “a single juror would have found this incident
constituted a misdemeanor instead of a felony had they been instructed on the lesser
included offense of child abuse.”
Appellant relies primarily on his wife’s trial testimony, which minimized the
incident. Appellant also notes that, at the close of its case, the prosecutor dismissed great
bodily injury enhancements (§ 12022.7, subd. (e)) that had been alleged in counts 1 and 2
regarding appellant’s wife. According to appellant, the totality of the evidence reflects
“contested perspectives” regarding the level of potential harm surrounding this incident.
We are not persuaded. The totality of this record amply demonstrates that, even if
instructional error occurred—a finding we do not make—it is not reasonably probable
appellant would have received a more favorable outcome.
7.
During closing argument, the defense asserted that appellant was not guilty on all
counts. According to the defense, there was no evidence that appellant held scissors and
stood over his wife while she was holding the toddler.
Regarding the charge in count 4, the defense argued that the small “dot” of blood
on the toddler’s shirt could have been put there after the incident. The defense noted that
the toddler was seen on video in the living room during part of the altercation. No
scissors were visible in appellant’s hand when his son took control of him. The defense
maintained that the toddler was happy and did not remember anything afterwards.
According to the defense, nothing showed that appellant’s wife was actually holding the
toddler during this incident.
This record does not support appellant’s position that there is a reasonable chance
at least one juror would have convicted him of misdemeanor child abuse instead of the
felony had the court instructed on the lesser included offense. On the night of this
incident, officers observed blood throughout the residence and discovered bloody
scissors. Appellant was found unconscious lying on the floor. He did not have any
apparent cuts or injuries. The wife told officers that appellant attacked her with scissors
while she held the toddler in her arms, that appellant tried to stab her two to four times,
and that she cut her fingers while grabbing the scissors. Their teenaged son told officers
that night that he saw his father on top of his mother and believed his father had scissors.
The son intervened and put his father in a chokehold.
Based on the verdicts, the jury rejected appellant’s claim that he did not attack his
wife with scissors. In count 1, the jury convicted appellant of felony corporal injury to a
spouse (§ 273.5, subd. (a)) and found true the allegation that he personally used a deadly
or dangerous weapon, to wit, scissors (§ 12022, subd. (b)(1)). In count 2, the jury
convicted appellant of assault with a deadly weapon (§ 245, subd. (a)(1)). In count 3, the
jury convicted appellant of felony false imprisonment by violence (§ 236).
8.
The jury’s verdicts on counts 1, 2, and 3—including the true finding that appellant
personally used scissors as a deadly or dangerous weapon—demonstrate that it rejected
the minimized trial version and credited the violent account from the night of the
incident. The jury’s verdicts conclusively show that it found true the facts that
overwhelmingly established the toddler was exposed to circumstances that gave rise to
felony liability. (§ 273a, subd. (a); CALCRIM No. 821.)
The dismissal of the great bodily injury enhancement allegations regarding
appellant’s wife does not materially advance appellant’s argument. The issue under
section 273a, subdivision (a), is not whether great bodily injury was actually inflicted on
the wife or the toddler. Instead, appellant’s liability for felony child abuse is based on the
circumstances he created that were likely to produce great bodily harm or death. The
prosecution’s inability to establish great bodily injury on the wife does not significantly
diminish the force of the overall evidence that demonstrated the degree of danger created
by appellant’s conduct.
Based on this record, there is no reasonable probability appellant would have
received a more favorable outcome had the jury been instructed on the lesser included
offense of misdemeanor child abuse. (See Watson, supra, 46 Cal.2d at p. 836 [setting
this standard].) Accordingly, any presumed instructional error is harmless under Watson.
Appellant has failed to meet his burden to show prejudice, and this claim fails.
II. The Prosecutor Did Not Improperly Vouch on the State of the Evidence and
Any Assumed Error Is Harmless.
At the close of the prosecution’s case, the trial court granted the People’s motion
to dismiss great bodily injury enhancements (§ 12022.7, subd. (e)) that had been alleged
as to counts 1 and 2 regarding appellant’s wife. The following day, the court informed
the jury of this dismissal. In response to the court’s inquiry, the prosecutor stated: “Yes,
Your Honor. The People did not prove that beyond a reasonable doubt, so we move to
strike.”
9.
Outside the presence of the jury, defense counsel objected, arguing that the
prosecutor had improperly vouched to the jury when stating that the dismissed charges
had not been established beyond a reasonable doubt. The trial court disagreed, noting
that the prosecutor had an ethical duty not to pursue charges that could not be established
beyond a reasonable doubt. The trial court found no error.
In the present claim, appellant contends that the prosecutor’s statement constituted
improper vouching. According to appellant, the prosecutor offered his personal opinion
on the state of the evidence, invaded the province of the jury, and invited the jury to infer
that the prosecution would not have proceeded on the remaining counts unless it believed
appellant was guilty. Furthermore, appellant contends that this alleged vouching was
“exacerbated” during closing argument when the prosecutor stated that the jury did not
need to review any lesser included offenses because appellant was “guilty of the main
charges.” Appellant maintains that he was prejudiced from these statements, which
constituted misconduct. He seeks reversal of his judgment and a new trial on all counts.
We reject appellant’s arguments. The prosecutor’s comments did not constitute
improper vouching. Furthermore, appellant has forfeited his argument about the
statement made during closing argument based on a failure to object. Finally, we
conclude that, even if error occurred, appellant was not prejudiced.
A. The applicable law.
A prosecutor’s 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. (People v. Hill (1998) 17 Cal.4th 800, 819.) A
prosecutor commits misconduct under state law if he or she uses deceptive or
reprehensible methods to persuade the jury. (Ibid.)
It is misconduct for a prosecutor to vouch for the strength of the case by
suggesting he possesses information not presented to the jury or by invoking his personal
prestige or the prestige of the office. (People v. Anderson (2018) 5 Cal.5th 372, 415.)
10.
When a claim focuses upon comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood the jury improperly construed or
applied the remarks. (People v. Hubbard (2020) 52 Cal.App.5th 555, 562.)
B. The standard of review.
We review de novo whether the prosecutor’s remarks constituted misconduct.
(People v. Hubbard, supra, 52 Cal.App.5th at p. 562.) However, we apply an abuse of
discretion standard regarding the trial court’s ruling. (People v. Alvarez (1996)
14 Cal.4th 155, 213.)
C. The prosecutor’s comment about the dismissed enhancements.
When asked by the trial court if it was true that certain enhancements were
dismissed, the prosecutor said, “Yes” and briefly explained that the trial evidence did not
support a true finding on those allegations beyond a reasonable doubt. We agree with the
trial court’s assessment that the prosecutor’s disputed statement did not amount to
improper vouching.
The prosecutor’s statement was not an argument directed at the jury. It was a
short, responsive explanation to the court’s query about whether it was true these
enhancements were dismissed. The prosecutor was simply conceding that the trial
evidence did not support these allegations. This exchange cannot be construed as
conduct so egregious that it denied due process. Likewise, the prosecutor’s statement
cannot reasonably be viewed as a deceptive or reprehensible method to persuade the jury.
Accordingly, this brief moment did not amount to misconduct under either federal or
state law. (See People v. Hill, supra, 17 Cal.4th at p. 819.)
Moreover, the prosecutor’s statement did not suggest that the prosecution
possessed information outside the record, it did not express a personal belief in
appellant’s guilt on the remaining charges, and it did not reasonably invoke the prestige
of the prosecutor’s office. In short, this exchange did not amount to improper vouching.
We discern no abuse of discretion when the trial court rejected the defense’s concern.
11.
D. The prosecutor’s disputed statement during closing argument.
During closing argument, the prosecutor stated that the jury did not need to review
any lesser included offenses because appellant was “guilty of the main charges.”
Appellant contends that this statement was a further example of improper vouching. We
disagree.
As an initial matter, this portion of appellant’s claim is forfeited. He never
objected below or asked for an admonition when the prosecutor made this disputed
remark during closing. His failure to raise this issue below results in its forfeiture.
(People v. Lewis (2009) 46 Cal.4th 1255, 1314; People v. Gutierrez (2002) 28 Cal.4th
1083, 1146.)
Even if the forfeiture doctrine did not apply, this brief statement during closing
argument did not amount to misconduct or improper vouching. Instead, it was
permissible argument regarding the relationship between the charged offenses and the
lesser included offenses.
When the prosecutor made this statement, he was explaining to the jury how to fill
out the verdict forms. In doing so, the prosecutor noted that the court had instructed on
certain lesser included charges, which the prosecutor had failed to address with the jury.
The prosecutor explained that it had not mentioned the lesser charges because appellant
“is guilty of the main charges.” Viewed in context, the prosecutor’s comment was an
explanation why he did not address all of the charges before the jurors and that, if the jury
found the evidence sufficient to convict on the greater offenses, it need not consider the
lesser included offenses.
Based on this record, we conclude that neither statement—whether viewed
individually or collectively—constituted misconduct. As such, the trial court did not
abuse its discretion in rejecting appellant’s first concern, and appellant’s second concern
is deemed forfeited from a failure to object.
12.
E. Any assumed error is harmless.
Appellant contends that this was a close case. He notes that, during deliberations,
the jury posed two questions to the court. He further notes that, when dismissing the
great bodily injury enhancements, the trial court said it had not heard much evidence
supporting those enhancements. Appellant also notes that, in the bifurcated trial, the
court did not find true all of the alleged factors in aggravation. According to appellant,
the prosecution’s case lacked evidence of serious injuries. As such, the prosecutor
“artificially bolstered its narrative” by assuring the jurors that it would not move forward
with the charges unless he could prove them beyond a reasonable doubt, and the
prosecutor additionally directed the jurors to not consider lesser included offenses.
Appellant’s arguments are unpersuasive. Even assuming that one or both
statements were improper, any error was harmless under either the federal due process
standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) or the state standard
of Watson, supra, 46 Cal.2d 818.
The prosecutor’s comments were brief and isolated. They did not involve
deception or reprehensible methods, nor did they create a pattern of egregious behavior
that infected the trial with unfairness.
The jury’s questions to the court during deliberations in no way demonstrate that
the prosecutor’s comments were prejudicial. In one jury note, some of the jurors wanted
clarification if they could translate for themselves the Spanish heard in some of the
recordings. In the other note, the jury needed technical help to play some recordings.
Based on the verdicts rendered, it is apparent that the jurors rejected appellant’s
trial testimony that he did not attack his wife. To the contrary, the evidence
overwhelmingly demonstrated that appellant attacked his wife with scissors. His wife
was cut, and blood was found throughout the residence. Appellant’s son had to
intervene, rendering appellant unconscious. We reject appellant’s contention that this
was a close case.
13.
The jurors were properly instructed that they alone had to decide the facts based
only on the trial evidence. The jurors were told to follow the law as given to them by the
court, and to disregard any comments from the attorneys that were in conflict with the
court’s instructions. The jurors were directed to base their decisions solely on the
evidence presented, their evaluation of that evidence, their common sense and
experience, and the court’s instructions. The jurors were told that appellant was
presumed to be innocent, and the prosecution was required to prove his guilt beyond a
reasonable doubt. We presume the jury followed these instructions, and nothing
reasonably rebuts that presumption. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
Based on the totality of this record, we can declare beyond a reasonable doubt that
the prosecutor’s disputed statements did not contribute to the verdicts. (Chapman, supra,
386 U.S. at p. 24.) Likewise, it is not reasonably probable appellant would have obtained
a more favorable result in the absence of these disputed statements. (Watson, supra,
46 Cal.2d at p. 836.) Accordingly, even if one or both statements amounted to
misconduct, prejudice is not present under either standard, and this claim fails.
DISPOSITION
The judgment is affirmed.
LEVY, J, Acting P. J.
WE CONCUR:
DETJEN, J.
SANDHU, J.
14.