P. v. Perez
Filed 2/27/13 P. v. Perez CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A131692
(
Super.
Christian
Perez (Perez) appeals from a judgment of
conviction and sentence imposed after a jury found him guilty of murder,
torture, and other crimes upon two young children. Perez contends: (1) the charges that he assaulted one young
child in his care should not have been joined with charges that he scalded to
death another young child in his care; (2) the prosecutor committed
to give a follow-up statement to police, misrepresenting evidence, and
comparing abortion to murder or child abuse; and (3) his attorney provided
ineffective assistance of counsel by failing to move for severance of the
charges, failing to recall a witness to testify, and failing to object to the
prosecutor’s closing argument.
We
will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Perez
was charged in an information with aggravated
mayhem (Pen. Code, § 205), torture (§ 206),
murder (§ 187, subd. (a)), and two counts of child abuse (§ 273a, subd. (a)).
Perez inflicted great bodily injury on a child under the age of five. (§ 12022.7, subd. (d).)
The
matter proceeded to a jury trial.
A. Prosecution
Case
The prosecution produced evidence
that Perez abused two children left in his care by different mothers on
separate occasions.
1.
N.B.
is the mother of victim K.G., a girl born in June 2004, and T.B., a boy born in
2002. N.B. broke up with the children’s
father, and the children were removed from her care so she could attend to
personal issues, including drug and alcohol counseling.
In
2006, N.B. married Perez and began caring for her children on weekends. N.B. and Perez lived in a house on Melbourne
Avenue in Hayward with Perez’s father (Rigoberto), brother, and cousin. In January 2007, N.B. began a 30-day trial
reunification with K.G. and T.G.
K.G.’s bruises and head injury
One
day in January 2007, N.B. left her children with Perez and his family while she
went grocery shopping. When she
returned, she noticed bruises on K.G.’s face.
N.B. took K.G. to Washington Hospital in Fremont for treatment; the
police arrived at the hospital but allowed N.B. to take K.G. home.
On
January 24, 2007, N.B. again left K.G. with Perez. When she returned, she saw that K.G. had an
open cut on her head and blood in her hair.
Perez claimed that K.G. had fallen in a park. N.B. took K.G. to Children’s Hospital in Oakland
for treatment of the cut, and to have other bruises examined as well.
Perez’s explanations to police
Hayward
police officer Aurel Agustin was dispatched to Children’s Hospital, where he
observed that K.G. had purple, yellow, green, and red bruises. Officer Agustin spoke with N.B. and
interviewed Perez, neither of whom were under arrest at the time.
N.B.
claimed that the bruises had occurred over four to five weeks, and Perez’s
parents, sister, cousins, and friends and other relatives had been in the house
during this period. In her view, K.G.
did not appear afraid of Perez.
Perez
told Officer Agustin that K.G. had sustained a bruise on her back the previous
day, when she slipped in the bath and hit her back on a soap dish. He did not attempt to explain K.G.’s other
bruises. He claimed, however, that K.G.
had bruises on her cheek and legs when they first received her from her foster
parents.
Perez
also told police that K.G. had hit her head on a park bench earlier in the
day. He recounted that he was leaving
the park with K.G., realized she had left her jacket behind, and went to
retrieve it, when he heard K.G. cry.
Perez turned and saw K.G. on her stomach with her arms out, crying. He picked her up and realized she was
bleeding from the back of her head.
Officer
Agustin observed that K.G. was active and engaged with N.B. at the hospital,
but K.G. was very quiet with Perez, who was “fixated†on watching television.
Officer
Agustin accompanied Perez to the park where Perez said K.G. had fallen. Perez showed Agustin the bench on which Perez
claimed K.G. had struck her head, but the officer did not see blood or hair on
the bench or others nearby.
Officer
Agustin also accompanied Perez back to his house. When Perez’s father (whom Perez would later
blame for the injuries at trial) and brother arrived, neither of them seemed
overly nervous notwithstanding the officer’s presence, and both appeared
tired. Perez told Agustin that his
father and brother worked two full-time jobs, were rarely home, and did not
take an active role in caring for the children.
N.B. also informed police that K.G. had not been alone with anyone other
than N.B. and Perez.
Detective
Scott Navas subsequently contacted Perez and N.B. and asked if they would speak
with him. N.B. gave Detective Navas a
statement. Perez, however, told the
detective that he had already given a statement and, if the detective had
anything to ask, he should contact Perez’s lawyer.
c. Dr.
Crawford’s opinion that K.G. was beaten
Dr.
James Crawford-Jakubiak (Dr. Crawford), a pediatrician and the medical director
of the Center for Child Protection at Children’s Hospital in Oakland, observed
K.G. and photographs of her taken around the time of her admission to the
hospital.
Dr.
Crawford noted that before K.G. lived with Perez, she had been described as
healthy and uninjured. After about three
weeks in Perez’s home, K.G. had serious injuries in locations not normally seen
in the type of accidents typical of young children. When K.G. was removed from Perez’s home, the
injuries went away. Based on the time
frame in which K.G.’s injuries appeared and resolved, as well as the number,
pattern, and locations of the injuries, Dr. Crawford opined that K.G. “was
clearly being physically beaten, injured by somebody.†Noting the facial bruising observed earlier
in the month at a different hospital, the additional significant bruising
indicated that K.G. had suffered at least two incidents of abuse. He ruled out the possibility that K.G.’s
injuries could have been inflicted by her four-year-old brother.
K.G.
had a contusion on her liver from being struck with something on her
abdomen. Her other injuries
included: two bruises on her upper left
thigh, caused by separate blows from a solid object like a wooden dowel; a
bruise on her earlobe, which is very uncommon except in cases of abuse and
tends to be “highly correlated with serious, sometimes fatal child abuseâ€; a
“very large bruise†on her cheek that was “very unusualâ€; unusual bruises on
her shoulders; an upper arm bruise, deepest around the edges, suggesting K.G.
had been bitten; several bruises on her back that were “exceedingly uncommon in
children this ageâ€; uncommon bruises on the inner part of both knees; and an
uncommon bruise in the middle of her chest.
Neither
K.G. nor T.G. was returned to N.B.’s care and custody, as N.B. agreed they
should be placed with their grandparents.
N.B. saw her children once a year and never again observed bruises on
K.G.
2.
Eli
was born in November 2006 to Katherine Rojas (Rojas). Rojas met Perez in October 2007, and in
February 2008 she moved into the Melbourne Avenue house with Perez and his
father Rigoberto, brother, and cousin.
About one week earlier, Perez had told her that N.B.’s little girl,
K.G., had bruises all over her body because she had cancer.
Around
February 2008 – roughly two months before Eli was injured – Rojas became
pregnant with Perez’s child. When Rojas
informed Perez, he told her that he did not want a baby and she should have an
abortion. Nonetheless, Rojas thought
that Perez was kind to Eli, he had not objected to Eli living with him, and Eli
appeared comfortable around him.
Typically,
Rojas would leave the house for work by 6:00 a.m., Perez would take Eli to a
babysitter at 7:00 a.m., and Rojas would return around 2:30 p.m. and cook and
take care of Eli. On April 24, 2008,
however, Eli was sick and stayed home with Perez.
Eli burned
Rojas
checked her cell phone around noon and noticed she had missed calls from
Perez. She called Perez, who informed
her that Eli had burned his hands and they looked red. Perez’s voice sounded normal, and he did not
disclose how Eli had been burned or that Eli needed to see a doctor.
At
some point, Perez called his sister Patricia Perez (Patricia), saying that Eli
had been burned and that Patricia and her husband, Jose Gamez (Gamez), should
come to his house on Melbourne Avenue.
When they arrived, Gamez asked Perez and his cousin what happened to
Eli; Perez did not reply, and his cousin said he did not know. Perez later told Patricia that he was giving
Eli a shower in the tub and had run out to get a towel, but he refused to give
Patricia any further details. Perez’s
father was not there.
Eli
was on the bed wearing only a diaper.
His legs were very red but his upper body had a different skin
tone. Gamez recalls that he immediately
said Eli needed to go to the hospital, Perez looked worried, and Patricia was
crying. Patricia recalls that Perez also
said Eli had to be taken to the hospital.
Although
the witnesses recalled the events somewhat differently, around this time
Patricia spoke with Rojas on the phone, told her that Eli was burned without
elaborating on the burn’s severity, initially told Rojas that she needed to
come home, and then later arranged to pick up Rojas from work and proceed to
the hospital. As Gamez drove Perez,
Patricia, and Eli towards Rojas’s workplace, however, Patricia said that Rojas
had told her to get burn cream for Eli, so they stopped at a store and
purchased some.
Perez,
Patricia, Gamez, and Eli then went to Patricia and Gamez’s house, where
Patricia took Eli to the master bedroom and instructed Perez to fill a basin
with cold water. Patricia was crying as
she applied the burn cream.
Suddenly,
Eli began foaming at the mouth and convulsing, and his eyes rolled back in his
head. They put Eli in the car and drove
toward the hospital, without fetching Rojas.
On the way, Patricia screamed, “The baby is dying. The baby is dying. Call 911.â€
Perez called 911, and the dispatcher told them to pull over. Gamez pulled into the Department of Motor
Vehicles (DMV) parking lot, and soon the fire department and ambulance arrived.
Observations of paramedics Hamre
and Buck
Ryan
Hamre and Christopher Buck were paramedics with the Hayward Fire Department who
received the initial dispatch regarding a child having seizures in the DMV
parking lot. When they arrived, they saw
a woman holding an unclothed child with severe red burns over half of his
body. The child was not crying, which
Hamre considered “an extremely bad sign.â€
The paramedics provided oxygen and inserted an interosseous line.
After
the ambulance arrived, ambulance paramedic Ben Lopez ventilated Eli while
paramedic Buck performed CPR (cardio-pulmonary resuscitation). At trial, Buck testified that a bruise
apparent in a photograph of Eli’s chest was higher than the area in which he
would have been pressing during CPR.
Lopez testified that he saw Buck perform chest compressions using “[a]n
approved method of encircling the hands around the chest with the thumbs over
the sternum at roughly the nipple line, so the line that would be drawn
horizontally across your chest at the area of the nipples,†and compressing
with the thumbs. Lopez further confirmed
that Buck had performed CPR on Eli properly.
Buck
rode with Eli in the ambulance. He
established a nasopharyngeal airway to keep Eli’s airway open. Eli did not gag when the tube was inserted in
his throat, another sign that his condition was “really deteriorating.â€
Officer Stiver’s observations at
the parking lot
Hayward
Police Sergeant Keith Stiver had responded to the parking lot, where he found
Eli lying naked on a gurney with the worst immersion burns he had ever seen
outside of training. Stiver believed the
burns resulted from an intentional act and the child was not likely to
survive. It was clear from the burn
pattern that Eli had been held in water that was already scalding. It was not possible that Eli had been in a
bath that gradually overheated: Eli’s
burns were “incredibly traumatic and no child would sit there while that water
heated up to that extent and allow themselves to be burned like that. They
would be struggling to get out of the water.â€
The absence of a significant amount of splash burns on Eli’s upper body
showed he had been held in the water.
Perez’s statements to police
Sergeant
Stiver interviewed Perez in the parking lot.
Perez stated he was in the shower with Eli when the burns occurred, but
it was apparent to Stiver that Eli’s burn pattern could not have been caused by
a shower.
A
short time later, Hayward Police Officer William Edwards interviewed Perez
after the medical personnel had departed with Eli. He found Perez to be “strangely calm.†In over 200 calls in which he spoke with an
adult who had care or custody of an injured child, he never observed a demeanor
so calm. Perez gave Officer Edwards a
“very quick†statement that he was bathing Eli when the water suddenly turned
very hot, scalding him.
Officer
Edwards asked Perez to accompany him to the police station for a further
interview. During the interview, Perez
never asked how Eli was doing or showed any concern for him. After the interview, Perez was arrested.
e. Police Officer Edens’ observations at the hospital
Aaron
Edens, a Hayward police officer and formerly a paramedic, responded to the
Children’s Hospital Pediatric Intensive Care Unit (ICU) to photograph Eli. When
he arrived, Eli was semiconscious and writhing, and medical personnel were
administering pain medication and chemical paralytics to prevent Eli from
dislodging his breathing tube. It was
the most morphine Edens ever saw administered to a child.
Edens
observed second degree burns over half of Eli’s body. There was a clear line of demarcation around
the level of Eli’s nipples, with the skin above that point intact. There were some less significant burns on
Eli’s right arm. The skin around his
knees had fallen off. In addition, Edens
noticed bruising to the right of Eli’s sternum.
The bruise on Eli’s chest was unlike anything Edens had seen on a child,
and he did not believe it was inflicted by someone performing CPR (unless the
rescuer’s hands had been misplaced).
Rojas’ return home and stay with
Eli until his death
Rojas
– whom Perez and Patricia never picked up – arrived home after work, expecting
to see Eli. An officer drove her to the
hospital, where she learned that Eli was in surgery and she could not see
him. Rojas was then taken to the police
station for questioning and returned to the hospital later to see Eli. Rojas slept with Eli at the hospital that night. The next day, Eli was taken to Children’s
Hospital in Sacramento, where Rojas stayed with Eli until he died on June 24,
2008.
Inspection of the water heater
On
April 30, 2008, police and building inspector Dennis Zafiratos checked the hot
water at Perez’s house on Melbourne Avenue.
Hayward Police Inspector Coffey confirmed that the setting on the water
heater was the same as the day Eli was burned.
Zafiratos noted that the temperature control on the water heater was set
“unusually high.†The bathtub did not
have a stopper, and the residents used a sock instead.
Rojas
had testified that, if a person was showering and the faucet in the kitchen or
bathroom was turned on, the water in the shower became “really, really hot,â€
but not so hot that it caused burns.
Zafiratos confirmed that turning on the cold water in the kitchen or
bathroom or flushing the toilet increased the bath water temperature by only
about two or three degrees.
Adjusting the temperature on the water to the maximum, the tub water
measured 150 degrees.
Dr. Crawford’s examination of Eli
at the hospital
Dr.
Crawford saw Eli shortly after he was transported to Children’s Hospital, where
he was in ICU with very serious burns to a large percentage of his body. The burns had been “horribly painful†and
were clearly caused by being enveloped in hot liquid.
On
the front of Eli’s body, all of the skin from the belly button down had peeled
off. On his back, there was a diagonal
burn line extending up towards his right shoulder. His right upper arm had been
under water only in the back, and everything from the hand up to the elbow was
unburned.
The
burn pattern showed that Eli had been exposed to very hot water. Eli’s groin and the backs of his knees were
relatively unburned. If the water had
been cooler, he would have been moving over time and those areas would have
been more evenly burned.
Dr.
Crawford concluded that Eli had been “placed into a standing reserve of very
hot water†in a somewhat reclined position.
When a child of Eli’s age sits in a bathtub, he supports himself with
his hands and cannot recline without using his hands, so the hands are always
wet. But Eli’s hands were not burned,
indicating that Eli had not gotten in or out of the tub on his own, and he had
not been “in the water in an uncontrolled fashion.â€
The
burn pattern also showed that Eli had not been sitting in comfortable bath
water that suddenly turned hot. If he
had been, there would have been unburned marks on his buttocks. The water temperature was at least 140
degrees and Eli had been held in the water for about five to 10 seconds.
On
cross-examination, Dr. Crawford confirmed that Eli was likely burned in a
single act; he was placed in the water and then removed by the same
person. His burns did not give the
appearance of one person putting him in the water and another struggling to
keep him out. The only likely scenario
was that someone turned on the water, waited for it to get hot, put in the
stopper, waited for the basin to fill, put Eli in and then took Eli out. If perpetrated by more than one person, it
would have to have been an “orchestrated two-person activity,†“a
choreographed, I’ll-put-him-in, you-take him-out thing.â€
Dr.
Crawford also observed a bruise on Eli’s chest that occurred some time before
Eli was burned. The bruise was “pretty
close to the same location†as the bruise he had observed on K.G.’s chest.
Autopsy of Eli
In
June 2008, Dr. Mark Super, a forensic pathologist, performed an autopsy on Eli
at the coroner’s office. Eli’s back
showed a clear demarcation of burned skin from the mid-back down. The bottoms of his feet and the back of his
knees had been spared, “characteristic of inflicted scald injuries in which the
child has folded their legs.†Eli’s
lungs were severely damaged, his small bowel was perforated, his kidneys showed
evidence of shock, his liver was inflamed, and he had a medication-resistant
staph infection caused by the lack of skin.
Dr.
Super determined the cause of death to be sepsis (infection) and “organizing
ARDS [adult respiratory distress syndrome] due to complications from scald
burns.†Eli had “multiple complications,
but they’re all directly related to the fact that he had injury to his overall
system from burn, because burn injures skin, which is the protection of our
internal organs. When our skin is
injured, we can’t protect our internal organs from infection and shock. That’s how burns kill.â€
B. Defense Case
At trial, Perez changed his story
and, for the first time, blamed his father, Rogoberto, for both the injuries to
K.G. and the death of Eli.
1. Injuries
to K.G.
Perez testified that his father
Rigoberto did not approve of his marriage to N.B. and did not agree to have
N.B.’s children move into the house.
Rigoberto disliked N.B., argued with her, and wanted her to move out. The children irritated him when he was
watching television, and he got mad at them for waking him in the morning. He told Perez and N.B. to find another place
to live, but they had nowhere to go.
After less than a month of living in
the house, K.G. began getting bruises.
Perez did not know their source; Rigoberto denied inflicting them and
was upset at Perez’s accusation. After
Perez spoke with Rigoberto, however, K.G. did not get bruises for about a
week. When bruises started to appear
again, Perez believed Rigoberto was responsible and told him to stop. Rigoberto then ordered Perez to leave the
house, but N.B. decided it would be best if the children went to live with
their grandparents. N.B. eventually
moved out as well, after an argument with Rigoberto. Perez claimed that he loved K.G. and T.G.,
played with them, and had no discipline problems with them.
When the police were investigating
K.G.’s bruises, Perez did not tell them about his father because Perez wanted
to protect him, since his father had had “problems with the law.â€
2. Death
of Eli
Rojas moved in with Perez a few
months after N.B. moved out. Perez was
still married to N.B. but had developed a romantic relationship with
Rojas. According to Perez, he loved Rojas’s
son Eli, who called him “dada.â€
When Eli woke up on April 24, 2008,
Perez gave him his bottle, went to make coffee, and then started Eli’s
bath. Perez made sure the water was the
right temperature and stuffed the drain with a sock to fill the tub. He filled the tub with 12 to 18 inches of
water, put Eli in, and washed and shampooed him for less than five
minutes. Perez had forgotten to bring a
towel, so he asked Rigoberto to watch Eli while he got one. While he was getting the towel, he received a
telephone call and talked for about three minutes, until he heard Eli
screaming. Perez went to the bathroom
and saw Rigoberto putting Eli in the tub or taking him out. Perez tried to grab Eli away from Rigoberto,
got Eli out of the tub, rinsed him, and took him to the bedroom. Eli was crying, and Perez saw that he was
burned. Perez told Rigoberto he was
going to take Eli to the hospital, but Rigoberto urged him not to because the
police would come and Rigoberto would get in trouble. So Perez called his sister Patricia instead.
Perez told Patricia what happened to
Eli and asked her to come to the house.
He tried to call Rojas, but she did not answer her phone. Perez told Rigoberto he was going to take Eli
to the hospital when Patricia arrived, so Rigoberto left the house. Rigoberto said he did not want to be there
when the police came because he had been deported twice, and he instructed
Perez not to tell the police that he or Perez’s cousin had been home.
When Patricia arrived, Perez told
her they were going to take Eli to the hospital. Patricia, however, took over
and they went to the store to buy burn cream, after she had spoken with Rojas
on the phone. Perez did not know how
serious the burn was until they were at Patricia’s house.
On the way to the hospital, Perez
called 911 to get an ambulance; he tried to tell the dispatcher where they
were, but Gamez would not stop driving.
Finally the dispatcher told them to pull into the DMV parking lot. In the parking lot, the police asked Perez if
they could interview him at the station and he agreed.
Perez did not tell the police that
his father was the one who burned Eli, because Perez was trying to protect
him. Perez loved his father and was
grateful that he brought him to the United States from
and worked hard so Perez could get a good education. Since the incident with Eli, however,
Perez had seen Rigoberto only twice, and
on one occasion Rigoberto reminded Perez not to mention him to the police. It was not until a month after Perez was
arrested that Perez realized the severity of the matter. He denied putting the hot water in the tub
and felt terrible about Eli’s scalding.
3. Cross-Examination
On cross-examination, Perez testified
that on the day K.G. was taken to Children’s Hospital, he and his father had
taken K.G. and T.G. to the park. When he
talked to the police about her injury, he neglected to mention that T.G. and
Rigoberto were also there. Perez’s story
to the police – that Perez walked back to retrieve K.G.’s jacket – was
untrue. Instead, Perez had been playing
with T.G., and Perez’s father was playing with K.G., when Perez heard K.G.
scream. K.G. was on the ground and Perez
picked her up; he did not know she was bleeding until he saw blood on his
clothes. Perez brought K.G. home to N.B.
and then left for work.
Perez admitted that he told Patricia
that Eli had been accidently burned in the shower, and that he had never told
anyone before trial that his father had burned Eli.
C. Prosecution’s
Rebuttal Evidence
Steven Worthington, the co-owner of
A&B Roofing, testified that Rigoberto worked for him in January 2007 (when
K.G. was hurt) and April 2008 (when Eli was killed). Employees work from 7:00 a.m. to 3:30 p.m. or
later, with a 30-minute onsite lunch break starting anywhere from 11:00 a.m. to
12:30 p.m. Employees are not to leave
the site during the lunch break, although Worthington acknowledged that he
would not know if an employee left the site unless another person reported it
to him. Worthington paid his employees
only for the hours they actually worked.
Rigoberto worked on January 24,
2007, and was paid for eight hours of work in Redwood City on April 24, 2008,
indicating that either Worthington or his brother had seen Rigoberto at the
start and completion of the work day.
D. Jury
Verdict and Sentence
The
jury convicted Perez on all counts before it.
The
court sentenced Perez to an aggregate term of 30 years, four months, to life in
state prison, comprised of the following:
25 years to life on count 3 (§ 273ab); a consecutive four years on
count 5 (§ 273a, subd. (a)); and a
consecutive one year four months on count 6 (§ 273a, subd. (a)). Sentence on counts 2 and 4 was imposed but
stayed pursuant to section 654.
This
appeal followed.
II. DISCUSSION
Perez
contends: (1) the charges against him as to victim K.G. were improperly joined
with the charges against him as to victim Eli; (2) the prosecutor committed
misconduct; and (3) his attorney provided ineffective assistance of
counsel. We address each of Perez’s
contentions, albeit in a different order than set forth in Perez’s opening
brief.
A. Joinder
of the Charges
Perez
argues that the joinder of the charges involving K.G. with the charges
involving Eli denied him due process, because the charges involving K.G. were
weaker than those involving Eli. Perez has waived this argument.
Under
section 954, offenses of “the same class of crimes or offenses†may be alleged
in one pleading for joint trial.
name="_ftnref6" title="">[6] The court has discretion to sever the
offenses in the interest of justice and upon a showing of good cause. (§ 954.)
Here,
however, Perez never asked the trial court to sever the charges. As California courts have held for nearly 150
years, the failure to object to the joinder of charges in the trial court
precludes a challenge to the joinder in this court. (See People v. Champion (1995)
9 Cal.4th 879, 906; People v. Saunders (1993)
5 Cal.4th 580, 589-590; People v. Garnett
(1866) 29 Cal. 622, 625-626.) Moreover,
the trial court has no sua sponte duty to sever. (People
v. Hawkins (1995) 10 Cal.4th 920, 940.)
Because Perez did not object to the joinder of the charges, he cannot
challenge it now.
title="">[7]
B. Prosecutorial
Misconduct
Perez
argues that the prosecutor committed misconduct during closing argument
by: (1) mentioning Perez’s refusal to
give a follow up statement in the investigation of the abuse of K.G.; (2)
misrepresenting the evidence by stating that K.G. and Eli each had a bruise in
the same place on their chests; and (3) comparing Perez’s desire for Rojas to
have an abortion with the abuse of K.G. and Eli.
The
standard for review of alleged prosecutorial misconduct is
well-established. “ ‘A prosecutor’s
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.’ [Citation.] When a claim of misconduct is based on the
prosecutor’s comments before the jury, as all of defendant’s claims are,
‘ “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.†’ [Citations.]†(People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
1. Prosecutor’s
Argument that Perez Did Not Give A Follow-Up Statement
In
closing argument, the prosecutor referred to evidence that Perez had not given
the police a follow-up statement in K.G.’s abuse investigation. Perez urges that this remark was analogous to
the error identified in Doyle v. Ohio
(1976) 426 U.S. 610 (Doyle), in which
the court held “that the use for impeachment
purposes of petitioners’ silence, at
the time of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.†(Doyle,
supra, 426 U.S. at p. 619, italics added.) The court in Doyle explained that, once people have been arrested and advised of
their right to remain silent, a comment on that silence unfairly penalizes them
for exercising their rights under Miranda v. Arizona (1966)
384 U.S. 436. (Doyle, supra, at pp.
616-618.) Doyle is inapposite to the prosecutor’s remark that Perez now
challenges.
The prosecutor’s argument
At
trial, Hayward Police Detective Navas testified to his understanding that K.G.
had been taken to Children’s Hospital on January 24, 2007. As part of his investigation into K.G.’s
injuries, he asked Perez and N.B. to meet him at the Hayward Police Department
on January 29, 2007. Perez and N.B. –
arrived at the police department together.
N.B. provided a statement. But
when Detective Navas asked Perez if he would speak with him, Perez replied
“that he’d already given a statement, and that if I had anything to ask him, to
contact his lawyer.†Perez and N.B.
left.
During
closing argument, the prosecutor stated:
“[N.B.] told Detective Scott Navas that she and [Perez] were the only two
people who cared for K.G. And [Perez]
told Officer Agustin that he and [N.B.] were the only two people who cared for
K.G. [Perez’s] written statement to Officer Valencia states over and over and
over that he was the only person with K.G. when she split her head. I, I, I,
I. [¶] And [Perez’s] immediate
response was not let’s go to the hospital together, not let’s get this baby the
care that she needs. His immediate response
was, here you go, I’m going to go to work.
That was his response. [¶]
follow-up statement. Here’s this
baby who you care about and you love, bruised from head to toe, and you’re not
willing to tell the police everything you know.†(Italics added.)
Defense
counsel objected in the following colloquy:
“MR. GRIM [DEFENSE COUNSEL]: Your Honor, I object to that as using a
constitutional right, arguing that shows guilt, and that’s against the
law. [¶] THE COURT: Overruled.
The defendant’s testimony speaks for itself. Whatever was said and whatever the jury
decides in the facts, that’s at issue here.
Move on, Counsel. [¶] MS.
PETTIGREW [PROSECUTOR]: My reference
with that was in reference to him accompanying [N.B.] to the police department,
everyone out of custody, and [N.B.] doing everything she can to figure out what
happened to her baby.â€
Analysis
As
Perez acknowledges, the prosecutor’s remark that Perez had not given a
follow-up statement was not Doyle
error, because Doyle dealt with a
defendant’s assertion of his right to remain silent after arrest and after
being advised by the police of this right under Miranda. At the time Perez
refused to speak with Detective Navas, Perez had not been arrested, had not
been told he had to answer police questions, and had not been Mirandized.
Nonetheless,
Perez contends this was “Doyle-like
error†because Perez’s refusal to give a follow-up statement could have been an
assertion of his Sixth Amendment right
to have a lawyer present at any follow-up interview or his Fifth Amendment right
not to give any further statement based on advice of counsel. Perez argues that his situation should be
protected because the prosecution should not be permitted to use his invocation
of a constitutional right by arguing it showed his guilt.
Perez
is incorrect. In a case decided after Doyle,
the United States Supreme Court held that “the Fifth Amendment is not violated
by the use of prearrest silence to impeach a criminal defendant’s credibility,â€
and “impeachment by use of prearrest silence does not violate the Fourteenth
Amendment.†(Jenkins
v. Anderson (1980) 447 U.S. 231, 238, 240.) As to the latter, the court in Jenkins
explained: “In this case, no governmental action
induced petitioner to remain silent before arrest. The failure to speak occurred before the
petitioner was taken into custody and given Miranda
warnings.
Consequently, the fundamental unfairness present in Doyle
is not present in this case.†(Id.
at p. 240.)
Here
too, no governmental action induced Perez to remain silent before arrest. His refusal to speak to Detective Navas
occurred before he was taken into custody and given any Miranda warning. Under
Perez’s prearrest silence to impeach his testimony at trial – that he loved
K.G. and was not the one who harmed her – did not violate his constitutional
rights; accordingly, there was no prosecutorial misconduct.
Perez’s
reliance on Hurd v. Terhune (9th
Cir. 2010) 619 F.3d 1080 (Hurd) is
misplaced. In Hurd,
read his Miranda rights,
he agreed to talk to the police without his attorney present, but then refused
the officer’s request to demonstrate how a shooting had occurred. Throughout the trial, the prosecutor referred
to Hurd’s refusal to re-enact the shooting as affirmative evidence of his
guilt. (Id.
at p. 1084.) The
court held that, because the defendant invoked his Miranda
rights when he refused to demonstrate how the shooting
occurred, the prosecutor’s comments on his silence violated his rights under Doyle. (Id. at
pp. 1088-1089.) Hurd is inapposite, since Perez’s refusal to give a follow-up
statement occurred before he was
arrested and without receiving a
In
any event, the prosecutor’s argument did not infringe on Perez’s right to
remain silent. After all, Perez
testified at trial, and he fails to show how a comment on his prior refusal to
speak could violate the self-incrimination privilege that he ultimately waived. (See People v. Redmond (1981)
29 Cal.3d 904, 910-911 [prosecutor’s argument, that defendant’s two-month delay
in disclosing the location of a knife was evidence of defendant’s guilt, did
not violate the Fifth Amendment right against self-incrimination where
defendant testified at trial].)
Perez
fails to establish prosecutorial misconduct.
2. The
Prosecutor’s Argument That K.G. and Eli Had Bruises On Their Chests
Perez
next contends the prosecutor misrepresented the evidence when she asserted in
closing argument that K.G. and Eli had “the exact same bruise in the exact same
place.†This, Perez argues, insinuated
that Perez had inflicted both bruises and had abused both children. He urges:
“This was a very serious misrepresentation of the evidence since Eli had
been burned, not beaten, and the evidence showed that his chest bruising near
the sternum was caused by the fire department paramedic performing CPR on the
baby on the way to the hospital and not any act of an abuser. (RT, vol. 1 pp. 139-144, 170-171, 222.)†To support this contention, he represents
that paramedics Buck, Lopez, and Edens testified “that the bruise on Eli’s
chest near his sternum was caused by Eden performing CPR / chest compressions
on [Eli] in the back of the ambulance on the way to the hospital.†Perez’s argument is untenable.
Here,
it is Perez – not the prosecutor – who misstates the evidence. Contrary to Perez’s representation, there was
no evidence from the paramedics that Eli’s bruise was caused by CPR. Buck testified that he performed CPR on Eli
in the ambulance en route to the hospital, and that a photograph of Eli showed
a bruise “pretty close†to, but higher
than, where he performed the chest compressions. Lopez did not even mention bruising in his
testimony in the pages of the reporter’s transcript that Perez cites. Edens looked at a picture of Eli’s bruise and
stated he had “never seen bruising like that on a pediatric patient,†if it had
been associated with CPR “it would indicate that the rescuer’s hands were
someone performing CPR. Edens did not
state that Buck’s hands were misplaced or contradict Buck’s testimony that the
bruise was higher on the chest than the location on which Buck was pressing
during CPR. To the contrary, Lopez
testified that he saw Buck perform CPR properly
using an “approved method.â€
Moreover,
“[a] prosecutor is given wide latitude to vigorously argue his or her case and
to make fair comment upon the evidence, including reasonable inferences or
deductions that may be drawn from the evidence.†(People v. Ledesma (2006)
39 Cal.4th 641, 726.) Here, the
prosecutor’s remark was taken almost verbatim from the testimony of Dr.
Crawford. Dr. Crawford testified that
K.G. had a bruise in the middle of her chest that, while not large, was a
significant indicator of nonaccidental injury because of its unusual location
for a two-year-old child. Dr. Crawford
also noted that Eli also “had a bruise pretty
close to the same location as [K.G.] did above the nipple line, below his
neck in the middle of his chest.â€
Furthermore, Dr. Crawford opined that Eli’s chest bruise occurred
before he was burned. The prosecutor’s
remark was a fair commentary on the evidence.
Perez
fails to establish prosecutorial misconduct.
3. Prosecutor’s
Reference to Perez’s Desire that Rojas Obtain an Abortion
Lastly,
Perez contends the prosecutor committed misconduct by repeatedly arguing that
the jury could use Perez’s desire for Rojas to get an abortion as evidence that
he had beaten K.G. and murdered Eli. Acknowledging
that defense counsel did not object to the prosecutor’s remark, Perez urges
that we nonetheless review the prosecutor’s statement because it was so
contrary to the public interest; he warns that the “prosecutor’s argument would
literally make thousands of law-abiding women in California criminal
suspects.†Without accepting Perez’s
characterization, we will consider the matter on the merits.
Prosecutor’s statement
At
trial, Rojas testified that about two months before Eli was burned, she told
Perez she was pregnant with his child.
Perez told Rojas he did not want the child and she should abort it, but
she refused. Perez, on the other hand,
testified that he loved K.G., T.G., Eli, and the family life he shared with
them.
In
closing argument, defense counsel used Perez’s testimony to argue that Perez
had a good relationship with the children and no motive to harm them, while
Rigoberto did not like the children and had a motive to harm them so they would
move out.
In
rebuttal, the prosecutor countered defense counsel’s argument that Perez had no
motive to hurt the children: “As far as
motive, [Perez] talked about Rigoberto . . . not liking kids, not wanting the
kids around, wanting them to leave.
[N.B.] told you that she got into it with him, but never told you
anything about him having anything to do with K.G. or treating her badly. [¶] [Perez] didn’t want kids. Out of his own mouth, he told [Rojas] to
abort that baby less than a month before he burned Eli. Get an abortion. I don’t want kids. Do you think it’s just a coincidence that
both of these babies were brutally injured within a month of moving into his
house? What clearer motive do you need
that he doesn’t want to be stuck taking care of these babies?â€
Analysis
Perez
suggests that the prosecutor was appealing to anti-abortion sentiments or
divine justice, or asking
County jurors to dislike Perez and convict him because he wanted Rojas to
have an abortion. No reasonable juror
would have believed, however, that this was the purpose of the prosecutor’s
argument. The prosecutor did not mention
Perez’s abortion request until after defense counsel argued that Perez loved
the children so much that he had no motive to harm them. When the prosecutor did mention Perez’s
preference for an abortion on rebuttal, it was clearly intended to counter the
defense argument that he had no motive to harm the children, in that Perez’s
telling Rojas to abort his own child demonstrated that he “doesn’t want to be
stuck taking care of these babies†already in the house. While it may not have been the most prudent
or tasteful argument, it was nonetheless a fair commentary on the evidence
introduced at trial and, as such, not misconduct. (Ledesma, supra, 39
Cal.4th at p. 726.)
Perez fails to establish
prosecutorial misconduct.
C.
Ineffective Assistance of Counsel
To
prevail on a claim of ineffective assistance of counsel, a defendant must
show: (1) counsel’s performance was
deficient because his representation fell below an objective standard of
reasonableness under prevailing professional norms; and (2) prejudice
flowing from counsel’s performance or lack thereof. (People
v. Lucas (1995) 12 Cal.4th 415, 436-437.)
To establish deficient performance, an appellant must establish that
“the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for his act or omission.â€
(People v. Fosselman (1983) 33
Cal.3d 572, 581.) To
establish prejudice, the appellant must demonstrate “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.†(Strickland
v. Washington (1984) 466 U.S. 668, 694.)
1. Failure
to Move for Severance
Perez
asserts that trial counsel was ineffective because he did not move to sever the
charges involving K.G. from the charges involving Eli. But Perez fails to establish either element
necessary for relief – that counsel’s
failure fell below an objective standard of reasonableness or that there is a
reasonable probability the outcome would have been better for Perez if his
attorney had moved for severance – since he fails to establish that the joinder
of the charges was prejudicial.
Section
954 permits the joinder of “offenses of the same class of crimes.†Clearly, the charges as to K.G. and the
charges as to Eli met this standard: two
child abuse offenses, one resulting in death and one resulting in multiple
injuries, are of the same class of crimes.
(See People v. Maury (2003)
30 Cal.4th 342, 395 [rape and murder are properly joinable under § 954 as
“ ‘offenses of the same class of crimes,’ †since both are
assaultive].)
Where,
as here, the statutory requirements for joinder are met, a trial court still
has discretion to sever charges in the interest of justice and upon a showing
of good cause. (§ 954.) However, a denial of severance is within the
court’s discretion – and will be upheld on appeal – unless the defendant makes
a sufficiently clear showing of prejudice arising from the joinder. (See People v. Sullivan (2007)
151 Cal.App.4th 524, 557 (Sullivan).) Moreover, there is a strong preference for
joint trials of similar offenses committed by a defendant, in light of the
case-specific efficiencies and systemic economies that result. (People
v. Soper (2009) 45 Cal.4th 759, 771-772 (Soper); Sullivan, supra,
151 Cal.App.4th at p. 557; Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1218.)
A
motion to sever will properly be denied where the evidence underlying the
charges as to one victim would be cross-admissible in the prosecution of the
charges as to the other victim. (
774-775.) Indeed, “[i]f the evidence
underlying the charges in question would be cross-admissible, that factor alone
is normally sufficient to dispel any suggestion of prejudice and to justify a trial
court’s refusal to sever properly joined charges.†(Ibid.)
Here,
the evidence as to the offenses upon K.G. and the evidence as to the offenses
upon Eli was cross-admissible. Perez was
charged with abusing two children with whom he lived. Under Evidence Code section 1109, evidence of
the events involving one child was admissible in the trial for the events
involving the other child, as both child abuse and domestic violence. (People v. Dallas (2008)
165 Cal.App.4th 940, 952-957.) And
although the admissibility of this evidence would have been subject to Evidence
Code section 352, Perez does not show that the evidence would have been
inadmissible under that statute.
name="_ftnref10" title="">[10]
Because
the cross-admissibility was apparent when a timely motion to sever would have
been brought, it was not incompetent for Perez’s attorney to refrain from
bringing a motion to sever. Moreover,
there is no reasonable probability that the outcome would have been better for
Perez if his attorney had brought the motion, since the motion would have
likely been denied, with the denial upheld on appeal.
Furthermore,
even if the evidence was not entirely cross-admissible, there is no reasonable
probability that counsel’s filing a severance motion would have done Perez any
good. In the absence of cross-admissibility,
the question becomes “ ‘whether the benefits of joinder were sufficiently
substantial to outweigh the possible “spill-over†effect of the “other-crimesâ€
evidence on the jury in its consideration of the evidence of defendant’s guilt
of each set of offenses.’
[Citations.]†(
p. 775.) Factors considered in this
determination are: (1) whether some of
the charges are likely to inflame the jury against the defendant; (2) whether a
weak case has been joined with a strong case or another weak case so that the
total evidence may alter the outcome of some or all of the charges; and (3)
whether one of the charges is a capital offense or converts the matter into a
capital case. (Ibid.) Any such prejudice is
then weighed against the state’s interest in a joint trial. (Ibid.)
Perez’s
attempts to show prejudice are unpersuasive.
Primarily, he argues that the case against him as to K.G.’s injuries was
weak, and the joinder hurt him because the case against him as to Eli’s
injuries was stronger. The record,
however, does not show such a marked difference in the merit of the cases that
would suggest an improper and prejudicial joinder. “[A]s between any two charges, it always is
possible to point to individual aspects of one case and argue that one is
stronger than the other. A mere
imbalance in the evidence, however, will not indicate a risk of prejudicial
‘spillover effect,’ militating against the benefits of joinder and warranting
severance of properly joined charges.†(Soper,
supra, 45 Cal.4th at p. 781.)
Indeed,
the case against Perez in regard to K.G. was not particularly weak. K.G. suffered the injuries while she was in
Perez’s care. Perez maintained to police
that her injuries were caused by accidental falls in the park and the bathroom
– claiming that K.G. was “clumsy†– but they occurred only when he was
around: K.G. did not have this type of
bruise until she started living with Perez, and she did not have them after she
left. Nor did Officer Agustin find any
blood stains in the park where Perez claimed she fell and bled from her
head. While Perez points out there were
no witnesses who said that Perez abused K.G., there were also no witnesses to
corroborate Perez’s story. Moreover,
Dr. Crawford testified that K.G. suffered bruises of a severity, number,
and location that left no doubt they were not
the result of accidents, but of abuse.
Perez
argues that the case as to K.G.’s injuries was weak because at trial –
charges and Perez had failed to make any objection to their joinder – Perez
changed his tune and claimed that his father inflicted the injuries upon
K.G. But his argument is unconvincing
for several reasons. First, Perez’s
change of story at trial does not demonstrate that the charges would have been
severed upon a motion brought before
trial. Second, Perez’s eventual attempt
to blame his father for the abuse actually favors a continued joinder of the
charges, since Perez made this claim not only as to the injuries inflicted on
K.G., but also as to the injuries inflicted upon Eli. Third, Perez’s claim that his father abused
K.G. (and Eli) did not weaken the case as to K.G.’s injuries (at least no more
than it weakened the case as to Eli’s injuries), in light of the significant
evidence that Perez’s father was not around to cause those injuries. N.B. testified that she never left K.G. in
Rigoberto’s care, and she told the police that K.G. had not been alone with
anyone besides N.B. and Perez. On
January 24, 2007, the day K.G. was injured, Rigoberto was not home when N.B.
left the house, and Rigoberto’s employer (Worthington) testified that Rigoberto
was at work that day. Worthington
further testified that Rigoberto’s work day began at 7:00 a.m. and his
30-minute lunch break began no earlier than 11:00 a.m., disputing Perez’s claim
at trial that Rigoberto was with him when he took K.G. to the park at 10:00
a.m.
Perez
further contends the evidence that he abused K.G. was weak because “Officer
Agustin readily agreed that, following his investigation, he did not have
probable cause to charge either appellant or [N.B.] with abusing K.G. (RT, vol. 3, p. 602.)†Officer Agustin, however, testified only that
he did not have probable cause to arrest Perez or N.B. after taking Perez’s
initial statement at Children’s Hospital, before K.G. had been seen by Dr.
Crawford. The officer was
conclusion after completing his investigation.
Furthermore, joinder is not improper where one “relatively weak†charge
was not filed until the evidence regarding the second charge was
uncovered. (People
v. Ruiz (1988) 44 Cal.3d 589, 606-607.) Indeed, “that circumstance is one favoring,
rather than disfavoring, joinder of these offenses.†(Ibid.)
Pursuing
yet another theory, Perez now suggests that the case against him as to K.G.’s
injuries was weak because the injuries might have been inflicted by K.G.’s
it was his father, Rigoberto, who was responsible for K.G.’s injuries, and
never tried to shift blame to N.B.
Furthermore, Gamez testified that although N.B. was “eccentric,†she was
a “very good mother,†and Officer Agustin testified to the obvious affection
between K.G. and her mother, in contrast to the mutual disinterest between K.G.
and Perez at the hospital.
In
short, Perez fails to show that the case against him as to K.G.’s injuries was
particularly weak, especially since – as Perez sets out in his opening brief –
there were some weaknesses in the case as to Eli’s injuries as well. Perez therefore fails to establish that
joining the offenses was prejudicial on this basis.
Perez’s
other arguments are unconvincing as well.
He urges that the joinder permitted the prosecutor to argue Perez’s
propensity to perpetrate child abuse and domestic violence, and that Perez’s
stories to police about an accident in each case were nearly identical (he was
with the child, turned away, and the child became injured). However, the propensity of an offender who commits
an act of child abuse or domestic violence to continue to commit such acts is
the very reason the Legislature enacted Evidence Code section 1109, which
allows such evidence. (People
v. Cabrera (2007) 152 Cal.App.4th 695, 705-706; see People
v. Jennings (2000) 81 Cal.App.4th 1301, 1315 [upholding Evidence Code
section 1109 against due process challenge].)
Lastly,
in his reply brief, Perez contends that the facts surrounding Eli’s death were
inflammatory, noting that the court stated during sentencing that he found
himself “not being able to look at those pictures of that little baby, little
Eli,†and called the facts surrounding Eli “sick†and “disturbing.†But given at least some degree of
cross-admissibility of the evidence and the entirety of the circumstances, the
joinder was not so prejudicial that there is a reasonable probability Perez
would have won a severance motion and obtained a better outcome if his attorney
had objected to the joinder. The general
preference for joint trials of offenses properly joined under section 954,
as well as the heightened efficiencies from trying the charges together in this
case – where both incidents occurred while Perez was supposedly taking care of
the victims, and both victims were examined by the same child abuse physician –
were amply sufficient to outweigh the claims of prejudice Perez now makes.
In
sum, Perez has failed to make an adequate showing of prejudice arising from the
joinder of the charges as to the abuse of K.G. and the charges as to the abuse
of Eli. (See Soper, supra,
45 Cal.4th at p. 774.)
Accordingly, he fails to establish that his trial attorney was
incompetent for not seeking severance, that it would have been error for the
trial court to refuse to sever, or that his attorney’s failure to seek
severance was prejudicial. He has no
ineffective assistance claim on this ground.
2. Failure
to Recall Patricia to Testify
Perez
next asserts his trial counsel was ineffective for failing to recall his sister
Patricia to testify about alleged physical abuse of family members by their
father, Rigoberto.
The
record of defense counsel’s cross-examination of Patricia at trial includes the
following discourse: “Q. Would you
describe your father as mean?
[¶] A. Well, he’s kind of – he’s a nice man, but sometimes he’s
strong, rude, but he’s okay. He’s cool,
I think. [¶] Q. How old are you
now? [¶] A. Twenty-four. [¶] Q. Isn’t true that your dad whipped
you severely occasionally until you were about 16? [¶] MS. PETTIGREW: Objection. Relevance.
[¶] THE COURT:
Sustained. You don’t have to
answer that. [¶] BY MR. GRIM: Q. Do you know of any instance if your dad
committing violence against members of your family? [¶] MS. PETTIGREW: Objection. Relevance.
[¶] THE COURT:
Sustained. You don’t have to
answer. [¶] BY MR. GRIM: Q. Were you in a sense afraid of your
father? [¶] MS. PETTIGREW: Objection.
Relevance. [¶] THE
COURT: Sustained.â€
Perez
acknowledges that the court ruled correctly because at the time there was no
evidence Rigoberto committed child abuse.
But once Perez blamed his father for K.G.’s and Eli’s injuries, Perez
argues, trial counsel should have recalled Patricia to ask her again about her
father’s alleged abuse.
As
Perez concedes, however, we do not know what Patricia would have said if called
again to testify. Perez states that he will therefore pursue the issue in a
separately filed petition for writ of habeas corpus. Specifically, he states: “Appellant contends that defense counsel was
ineffective not to recall Patricia as a defense witness. This
issue cannot be fully explored on direct appeal because the record does not
disclose what answers Patricia would have given in response to defense
counsel’s questions. Appellant intends
to file a companion habeas corpus petition in which the existing record can be
expanded with the answers Patricia would have given and defense counsel’s
ineffectiveness fully explored.â€
(Italics added.)
We
agree that the record before us in this appeal is insufficient for Perez to
establish ineffective assistance of counsel on this ground. In addition, Perez has not established in
this appeal that Patricia’s being recalled to the stand would have changed the
result of the trial – regardless of what she would have said about Rigoberto’s
actions against her or other family members – in light of the evidence that
Rigoberto was not with the children on the days they were injured.
Perez
has failed to establish ineffective assistance on this ground.
3. Failure
to Object to Prosecutor’s Argument About Chest Bruises
As
mentioned, the prosecutor stated in closing argument that K.G. and Eli had “the
exact same bruise in the exact same place.â€
Perez argues that his attorney’s failure to object to this argument as a
misrepresentation o
| Description | Christian Perez (Perez) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of murder, torture, and other crimes upon two young children. Perez contends: (1) the charges that he assaulted one young child in his care should not have been joined with charges that he scalded to death another young child in his care; (2) the prosecutor committed misconduct by mentioning Perez’s refusal to give a follow-up statement to police, misrepresenting evidence, and comparing abortion to murder or child abuse; and (3) his attorney provided ineffective assistance of counsel by failing to move for severance of the charges, failing to recall a witness to testify, and failing to object to the prosecutor’s closing argument. We will affirm the judgment. |
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