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P. v. Zavaleta

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P. v. Zavaleta

P. v. Zavaleta

Filed 3/9/17 P. v. Zavaleta CA5


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



Plaintiff and Respondent,



Defendant and Appellant.


(Super. Ct. No. CRL008354)


APPEAL from a judgment of the Superior Court of Merced County. Marc A. Garcia, Judge.
Michael Aed and Amy K. Guerra for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Tomas Zavaleta, charged and convicted as Thomas Zavaleta, was convicted by a jury as charged with nine counts involving two victims on two separate dates: sodomy of an unconscious person (Pen. Code, § 286, subd. (f));[1] sodomy of an intoxicated person (§ 286, subd. (i)); oral copulation of an unconscious person (§ 288a, subd. (f)); oral copulation of an intoxicated person (§ 288a, subd. (i)); false imprisonment (§§ 236, 237, subd. (a)); sodomy of an unconscious person (§ 286, subd. (i)); sodomy of an intoxicated person (§ 286, subd. (i)); rape by foreign object of an unconscious person (§ 289, subd. (d)); and sexual penetration of an intoxicated person (§ 289, subd. (e)).The trial court sentenced Zavaleta to a total term of 12 years 8 months in prison.
On appeal, Zavaleta contends the trial court abused its discretion when it omitted his relevant, contextual, and exculpatory statements under Evidence Code section 356, and that prosecutorial misconduct and cumulative errors denied him a fair trial. We affirm.
Michael B.
Zavaleta and Michael B. met in the summer of 2012through a gay social networking application called Grindr. After a few days of texting back and forth, the two agreed to meet at Zavaleta’s apartment for drinks and a movie. Michael asked to stay the night at Zavaleta’s apartment because he did not want to drive home after he had been drinking. They did not discuss having sex, nor did Michael intend to have sex with Zavaleta that night.
On June 23, 2012, Michael drove a distance from his home to Zavaleta’s apartment, arriving sometime between 9:00 and 10:00 p.m. Zavaleta invited Michael into the apartment and the two then went to the grocery store to purchase alcohol. Back at the apartment, each took a shot of vodka before going into the living room to watch a movie. Michael consumed a total of three or four shots of vodka while the two watched the movie.
When Michael began to feel the effects of the alcohol, he told Zavaleta he wanted to slow down the drinking. At this point, he felt slightly dizzy, but was still in control of his body.Zavaleta continued to pour shots for himself and Michael, but Michael was not certain Zavaleta was drinking the same amount as he was.Zavaleta insisted Michaelcontinue drinking. Not wishing to be a killjoy, Michael did and, after drinking two more shots, began to lose consciousness.
Michael went in and out of consciousness and could not control his bodily movements. When he went to the bathroom to vomit, he noticed he was naked, but he did not know how his clothes were removed. He next remembered waking up in Zavaleta’s bed naked, but he did not know how he got there. He was weak and felt cramps throughout his body. Michael felt something had happened and he was embarrassed and just wanted to get dressed and leave.
Michael never consented to having any type of sex with Zavaleta. He went home and slept the rest of the day because his body was cramping and it hurt to get up. Michael did not file a police report because he did not know what, if anything, had happened.
Oscar M.
During the summer of 2012, Oscar M. and his brother Jose M. worked at the same restaurant where Zavaleta was the assistant manager.The three became friends and, at times, the brothers talked to Zavaleta about their girlfriend problems.
In late July of 2012, Oscar turned 21. He did not have a good birthday, so Zavaleta invited him to his apartment for drinks and to talk. Oscar accepted the invitation.
On August 8, 2012, Oscar and Jose arrived at Zavaleta’s apartment around 8:30 p.m.Zavaleta made himself and Oscar a mixed alcoholic drink, gave Jose a vitamin water, and the three sat at the kitchen table and played a drinking game.Zavaleta made Oscar another drink, the same as the first.
At approximately 10:30 p.m., Jose stepped outside to take a telephone call.At that point, Oscar was feeling a slight “buzz,”but he was not drunk.Zavaleta appeared sober.
While Jose was outside, Zavaleta made Oscar a third drink. Oscar did not drink more than half of the third drink before he blacked out. He went in and out of consciousness throughout the rest of the night and had only flashes of memory of what happened from that point on.
Jose tried to reenter the apartment after about 30 minutes, but found the door locked. No one responded to his knocks on the door. Jose repeatedly called and sent text messages to both Oscar and Zavaleta’s cell phones, but neither responded.
Around midnight, Jose called the police. An officer arrived around 1:00 a.m. and knocked on the apartment door, but no one answered.The officer told Jose they were probably asleep and he should go home, which he did.
Inside the apartment, after losing consciousness, Oscar remembered waking up naked in Zavaleta’s bathroom, vomiting. He did not remember taking his clothes off. Oscar saw camera flashes as Zavaleta took pictures of him naked on the bathroom floor. Oscar told him to stop, but Zavaleta just laughed and continued. Oscar triedbut could not move his body.
The next thing Oscar remembered was being in the shower with Zavaleta, who was rubbing his hands all over Oscar. Oscar implored him to stop, but he felt weak and could not remember if he tried to push him away. Oscar noticed blood on the bathroom floor next to the toilet, and he also noticed blood inside his buttocks.
Oscar remembered being in Zavaleta’s bed, but was not sure how he got there. While he was in bed, Zavaleta anally penetrated Oscar, despite Oscar’s telling Zavaleta not to and trying to push him away. Zavaleta told Oscar to orally copulate him, but Oscar refused. Zavaleta then orally copulated Oscarwhile Oscar repeatedly told Zavaleta to stop.
When Oscar woke up around 3:00 a.m., he sent a text message to Jose asking, “Why did you leave me here?”Still dizzy and weak, Oscar got dressed and told Zavaleta he was going to leave. Zavaleta said, “‘No, I already called your brother, and you’re staying here with me.’” Oscar knew this was not true as he had already contacted Jose, who said he was coming to get him. Although Zavaleta tried to stop Oscar from leaving, Oscar was able to push Zavaleta out of the way and leave.
Oscar did not immediately tell Jose or his mother what had happened, as he was embarrassed. Oscar tried to sleep, but couldn’t, as he continued to vomit and have chills.Later that morning, Oscar told his mother and brother what had happened.
The Investigation
Police Detective Eduardo Solis arrived at Oscar’s home mid-morning on August 9, 2012, and Oscar reported he had been sexually assaulted.Detective Solis took Oscar to the police stationwhere Oscar made a monitored pretext telephone call to Zavaleta, which was played for the jury.
During the telephone call, Oscar told Zavaleta he did not remember what had happened the night before and asked Zavaleta to tell him. Zavaleta claimed he did not remember much, but he did remember he used a condom. When Oscar asked Zavaleta if he had given him anything because he felt sick, Zavaleta said, “What do you mean did I give you anything?” Zavaleta neither confirmed nor denied he had drugged Oscar.
Zavaleta was arrested and agreed to speak to detectives. Portions of the video-recorded interview were played for the jury.Zavaleta told detectives Oscar and Jose came to his apartment between 8:30 and 9:30 p.m. Zavaleta made Oscar a drink and gave Jose, the designated driver, a glass of water. He and Oscar then played a drinking game. When Jose received a telephone call, he stepped outside.
Zavaleta told the detectives that, after Jose went outside, he and Oscar “were intimate with each other.” He admitted locking the door, but claimed he never heard Jose or the officer knock on the door, probably because he and Oscar were in the bedroom with the door closed and music on.
Zavaleta admitted he and Oscar were in the shower together, but he denied there was any blood in the bathroom. Zavaleta admitted he orally copulated Oscar and that they had anal sex. Zavaleta did not recall Oscar vomiting, but did say he passed out on the bathroom floor and had to be helped back to bed.
Zavaleta’s cell phone was seized during the search of his apartment. A detective found a photograph on Zavaleta’s cell phone taken August 9, 2012, at 12:30 a.m., showing Oscar lying on the bathroom floor of Zavaleta’s apartment.When questioned about the photograph, Zavaleta admitted taking the picture and that he took pictures—and sometimes videos—of all the men he has sex with.Zavaleta did not acknowledge any wrongdoing, stating, “One thing led to another and it happened. I don’t look at it as rape.”
Detectives also found a photograph on Zavaleta’s cell phone taken June 23, 2012, showing Michael B. unconscious on the bathroom floor of Zavaleta’s apartment.They also found a video on Zavaleta’s cell phone showing Michael, unconscious, being sodomized and digitally penetrated by Zavaleta.Michael did not know Zavaleta had filmed him.The video was played for the jury.
Zavaleta was further questioned and admitted he took the pictures, but denied drugging Oscar or forcing him to have sex with him. He continued to deny drugging anyone.Zavaleta eventually admitted Michael was passed out when he stuck his finger and then his penis in Michael’s rectum. But he claimed that when Michael regained consciousness, the two “made out” and had sex before falling asleep. Zavaleta continued to deny Oscar was passed out when he had sex with him.
A sexual assault examination on Oscar on the afternoon of August 9, 2012, revealed an injury to his rectum consistent with forcible penetration. There was a ruptured blood vessel in Oscar’s rectum, which could have been the source of blood on the bathroom floor. And broken blood vessels on the roof of Oscar’s mouth were found to be consistent with oral copulation.
A drug consultant and expert on “GHB,” a date rape drug,reviewed police reports, audiotapes of witnesses, photographs, the video, the forensic nurse’s report, and symptoms reported by Oscar and concluded Oscar was drugged, most likely with GHB.According to the expert, it was not a surprise that no GHB was found in Oscar’s blood, as GHB is “gone from blood in four hours.”The expert opined Oscar did not have the ability to physically stop Zavaleta’s advances, nor did he have the ability to consent to the sexual conduct.The expert opined the same was true of Michael.
Zavaleta testifiedin his own behalf, at length, that all of his encounters with Oscar and Michael were consensual. Zavaleta admitted he locked the apartment door when Jose left, but he did so for security purposes.He also admitted he took pictures of both Oscar and Michael that they were unaware of.
Salvador Agundez testified he met Oscar in 2010 and the two had a consensual sexual encounter. Agundez claimed he did not know Zavaleta.On cross-examination, it was revealed Agundez and Zavaleta knew each other from school and that Agundez was homeless and unemployed in December of 2012 when he met with Zavaleta’s family, who asked him to testify at Zavaleta’s trial. Agundez admitted going to Oscar and Jose’s house in 2013, but denied telling them he was just playing along because he was homeless and unemployed. He also admitted speaking to a police officer, but denied telling the officer that Zavaleta’s family was paying him for his testimony.
Oscar testified that, on the evening of March 24, 2013, Agundez came to his house and told him he had been paid to testify that he and Oscar had been sexually involved and to say that Oscar was a homosexual. Agundez acknowledged he knew this was a lie.Oscar called the police and an officer came to the house. Oscar told the officer Agundez had said Zavaleta’s sisters offered Agundez money to testify falsely about a sexual encounter between him and Oscar. Agundez confirmed to the officer that he was offered money to lie about a sexual encounter with Oscar.
On December 31, 2013, following Zavaleta’s conviction, Zavaleta’s trial counsel filed a new trial motion, alleging prosecutorial misconduct and insufficient evidence to justify the verdict.On February 21, 2014, counsel withdrew the motion after he was substituted out for another attorney.On April 25, 2014, substitute counsel filed a new trial motion, alleging abuse of discretion on the part of the trial court in omitting some of Zavaleta’s police interview statements under Evidence Code section 356, and prosecutorial misconduct.On July 22, 2014, the trial court denied the motion and sentenced Zavaleta.
On appeal, Zavaleta repeats the allegations made in the April 25, 2014, new trial motion. However, his opening brief is not clear whether he is making these arguments in the context of the denial of his motion for new trial or as stand-alone claims. Zavaleta has failed to make the transcript of the hearing, at which the trial court considered and denied his new trial motion, part of the record on appeal. As such, the record is inadequate to address the claim in the context of the denial of the motion for new trial, and we will address each issue separately.
1. Excluded Portions of Police Interview
Portions of Zavaleta’s interview with police officers was played for the jury. Zavaleta contends the trial court abused its discretion in violation of Evidence Code section 356 in omitting relevant, contextual, and exculpatory statements he made. We find no prejudicial error.
A. Procedural Background
At the beginning of trial, the People filed a motion in limine requesting they be allowed to introduce select portions of Zavaleta’s recorded statements to the detectives, explaining the interview in its entirety was “over 3 hours.”On the first day of trial, the prosecutor explained the interview was on four disks and there were “pretty clear portions” that she wished to play for the jury.The trial court asked that the prosecutor alert defense counsel as to which portions she wished to play, and the court would make a subsequent determination.
When the trial court next took up the issue, it methodically addressed the parts of the interview the prosecutor wished to play, as well as those she did not wish to play but defense counsel wished to include. For clarification, the interviews were characterized as “Interviews1, 2, 3, and 4,”presumably in reference to the four disks.Interview 2 was not at issuebecause the prosecutor did not intend to play any part of that interview; Interview 4 was not at issue, because the prosecutor intended to play it in its entirety.
As for Interview 1,the prosecutor sought to admit lines 12 through 301, and lines 452 through 552.Zavaleta wished to include lines 302 through 451.The trial court denied Zavaleta’s request, explaining the interview, at this point, sets up some preliminary foundational facts about the incident involving Oscarup until the point where Jose leaves the apartment to take the telephone call:
“Now, contained in that … is a brief allusion to the sex act or aspect of it, but it’s really brief and not really in context with the interview’s main subject matter which is what happened at the apartment and the issues regarding the alcohol consumption and [Jose M.’s] departure from the apartment. In other words, the sex aspect isn’t discussed in any great detail, there is just a brief allusion to it.
“Now, the portion that the defense wants introduced which is lines 302 to 451 in the Court’s opinion is of a self-serving nature where essentially he is attempting to absolve himself of any responsibility because he blacked out. Those may have been the detective’s words, but the clear allusion is that he didn’t have any responsibility because of this level of intoxication ….
“Now the rest of the conversation is about the defendant’s mobile phone, and that’s clearly not relevant to the conversation’s subject matter …. I don’t believe there’s any context to it where the defendant would be permissibly allowed to include lines 302 to 451.”
As for Interview 3,the prosecutor intended to introduce lines 403 through 423, 541 through 664, and 784 through 820.Zavaleta also wanted to include lines 396 through 402, 665 through 783, and 821 through 834.The trial court granted Zavaleta’s request to admit lines 396 through 402, as well as 665 through 783, as they included references to Zavaleta slipping Oscar or Michael some sort of drug and Zavaleta denying it.As for the lines 821 to 834, the trial court found “apropos of nothing, some discussion about the next morning. That’s not relevant to anything in the Court’s opinion and therefore that will be excluded.”
B. Applicable Law
Evidence Code section 356 reads:
“Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
Evidence Code section 356 is known as California’s “statutory version of the common law rule of completeness.” (People v. Parrish (2007) 152 Cal.App.4th 263, 269, fn. 3.) The statute provides that when one party puts into evidence one part of a conversation or statement, the remainder of the conversation or statement is admissible under Evidence Code section 356 “‘“provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence.…”’” (People v. Zapien (1993) 4 Cal.4th 929, 959.)
Evidence Code section 356 permits introduction of statements on the same subject or which are necessary for the understanding of the statements already introduced. (People v. Maury (2003) 30 Cal.4th 342, 419.) The purpose of the statute is “to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.) The statute requires that the two portions of the statement be on the same subject, and the proponent must show some connection between the matters. (People v. Zapien, supra, 4 Cal.4th at p. 959; People v. Hamilton (1989) 48 Cal.3d 1142, 1174.)
We apply an abuse of discretion standard of review to a trial court’s determination of whether evidence is admissible under Evidence Code section 356. (People v. Parrish, supra, 152 Cal.App.4th at p. 274.)
C. Analysis
Zavaleta notes the prosecutor was allowed to introduce Zavaleta’s statement that he did not give Oscar a “roofie,” a specific date rape drug. He further notes the prosecutor’s argument was that the exact drug alleged to be used on the victims was unknown. As a result, he argues, the introduction of Zavaleta’s denial, without the inclusion of lines 373 through 394 in Interview 3, specifically implied he only denied slipping Oscar a roofie, leaving open the possibility he gave him some other drug. The interview lines Zavaleta wanted included were those in which, when asked if he gave Oscar some type of drug, he stated, “I didn’t give him anything.”Zavaleta argues the exclusion of these lines in the interview left the jury with the impression Zavaleta only denied giving Oscar a roofie, and did not clearly convey that Zavaleta denied giving Oscar any kind of drug.
We disagree. When asked whether he slipped Oscar a roofie, Zavaleta stated,
“I didn’t give him any roofie’s [sic] or anything—no date rape drug—whatever you guys are talking about—no. I don’t do drugs myself. I can get drugs, but I’m afraid of drugs.”
In addition, in other portions of the interview played for the jury, Zavaleta repeatedly denied drugging Oscar.And the trial court granted Zavaleta’s request to include the allegation by the interviewer: “You slipped him something,” and Zavaleta’s reply, “I didn’t slip him anything.”
It is not reasonably likely the jury could have mistakenly believed Zavaleta never denied drugging Oscar with something other than a roofie. We find no abuse of discretion on the part of the trial court in denying Zavaleta’s request to include the specific lines he complains of here.
Zavaleta also argues the trial court erroneously excluded lines 821 through 834 of Interview 3 in which Zavaleta repeats a conversation he and Michael B. had the morning after the sexual assault in which Michael allegedly asked Zavaleta if he wanted to have sex again but Zavaleta declined.The trial court denied Zavaleta’s request, stating the statements were “apropos of nothing” and not relevant.
Whether Michael consented to having sex with Zavaleta the following day was irrelevant to whether he consented to the sex acts occurring the night before when he was unconscious and unable to give consent. We find no abuse of discretion on the part of the trial court in excluding this portion of Zavaleta’s statement as it was not relevant and not necessary to understand the admitted portions. (See, e.g., People v. Farley (2009) 46 Cal.4th 1053, 1103 [finding admitted portions “‘independently comprehensible’” on the relevant topics and finding no abuse of discretion in concluding excluded evidence was not necessary].)
2. Prosecutorial Misconduct
Zavaleta contends the prosecutor committed misconduct in various instances during her closing argument and thus violated his right to due process and a fair trial. He asserts the prosecutor engaged in misconduct by disparaging a witness, vouching for a witness, improperly stating evidence, and appealing to the passions of the jurors. We find no prejudicial error.
A. Applicable Law
“‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citation.]” (People v. Navarette (2003) 30 Cal.4th 458, 506.)
Prosecutorial misconduct requires reversal only if it prejudices the defendant. (People v. Fields (1983) 35 Cal.3d 329, 363.) Where it infringes upon the defendant’s constitutional rights, reversal is required unless the reviewing court determines beyond a reasonable doubt the misconduct did not affect the jury’s verdict. (People v. Harris (1989) 47 Cal.3d 1047, 1083.) Prosecutorial misconduct violating only state law is cause for reversal when it is reasonably probable a result more favorable to the defendant would have occurred had the prosecutor refrained from the objectionable conduct. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, “‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct” [citations]’” (id. at pp. 1000-1001),or if an objection would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
Here, defense counsel objected only once on the grounds of prosecutorial misconduct, and the jury was admonished.He has, therefore, forfeited the remainder of his claim on appeal. (People v. Cunningham, supra, 25 Cal.4th at p. 1000.) But even on the merits, we find Zavaleta’s claim lacking, and for that reason do not need to discuss his further claim of ineffective assistance of counsel for failing to object.
B. Analysis
(1) Disparaging a Witness
Zavaleta first argues the prosecutor engaged in misconduct by expressing her personal opinion Zavaleta was a “predator and a serial rapist.”We disagree.
In the course of summation, in explaining Zavaleta’s actions on the nights in question, the prosecutor referred to Zavaleta as a predator, a sexual predator, or a sexual deviant.For instance, at one point the prosecutor argued:
“He invites them over for drinks, he spikes their drinks with GHB, he sexually assaults them, and then he memorializes events with pictures and video to add to his collection so he can masturbate to them later because to him, this is sex, and to him, having sex with unconscious people turns him on. That’s a sexual predator. That’s a sexual deviant.”
Zavaleta also objects to the prosecutor’s opinion of him as
“narcissistic, he’s bold, he likes to be in control, and he has no problem engaging in conversation and standing up for himself. He’s also a bit manipulative in his statements and he … likes to use being drunk as an excuse when he can’t come up with a good enough lie to explain away his behavior.”
Zavaleta relies on People v. Herring (1993) 20 Cal.App.4th 1066, 1074-1075 (Herring), in which the court held the prosecutor’s statement that the defendant was “‘like a parasite … never works, stays at people’s homes …[d]rives people’s cars … steals from his own parents to get anything … won’t work for it,’” was improper because it “had nothing to do with the crimes alleged [intent to commit rape, attempted rape, and sexual battery] and inferred that people who do not work, live with others, and drive other people’s cars are bad people and more likely to do criminal acts.” (Ibid.)
We find Zavaleta’s reliance on Herring misplaced for several reasons. First, in Herring, the prosecutor’s comments had nothing to do with the crimes alleged. And because, in determining prosecutorial misconduct had been committed, the court also took into consideration additional statements made by the prosecutor. For instance, the prosecutor’s comments that defense counsel
“‘and I aren’t any different in a couple of respects. I chose this side and he chose that side. My people are victims. His people are rapists, murderers, robbers, child-molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth.’” (Herring, supra, 20 Cal.App.4th at p. 1073.)
Helpful to our analysis is People v. Alvarez (1996) 14 Cal.4th 155, in which the defendant was convicted of murder, attempted robbery of one victim, rape of a second victim, robbery of a third, and automobile theft of a fourth victim. (Id. at pp. 178-180.) In closing, the prosecutor made comments characterizing the defendant, including remarks to the effect he was a “‘creep,’” was worse than a “‘predator[]’ because he ‘enjoy[ed] … unnecessary violence,’ was ‘your worst nightmare, … society’s worst nightmare.’” The trial court overruled the defendant’s objection to the remarks as “‘disparaging.’” Our Supreme Court found no abuse of discretion on the part of the trial court in overruling the objection. (Id. at pp. 241-242.)
“The superior court was not unreasonable in effectively determining that the prosecutor did not commit misconduct. For it was not unreasonable in impliedly finding that he did not use any method of persuasion that may be deemed deceptive or reprehensible, including inflammatory comments. Such remarks as those quoted above did indeed characterize defendant in negative terms. Although perhaps unnecessarily colorful, they were consistent with the evidence. Hence, they were not improper.” (Ibid.)
Here, too, while the words may have been unnecessarily colorful, they were consistent with the evidence and not improper.
(2) Vouching for a Witness
Zavaleta argues the prosecutor engaged in improper vouching by referring to Oscar as “hardworking” and “a sweet kid.”Zavaleta also claims it was misconduct to vouch for the GHB expert witness by stating she had a “really impressive resume” and that her testimony was “uncontested [and] unchallenged.”
Prosecutors may comment on the credibility of witnesses based on facts contained in the record and any reasonable inferences therefrom; however, they may not vouch for the credibility of witnesses based upon personal belief or by referring to evidence outside the record. (People v. Redd (2010) 48 Cal.4th 691, 740.) “Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching,’ which usually involves an attempt to bolster a witness by reference to facts outside the record. [Citation.]” (People v. Medina (1995) 11 Cal.4th 694, 757.)
Here, the prosecutor did not voice her own opinion of either witness or suggest there was evidence not before the jury that would corroborate the witness’s testimony or bolster either witness’s credibility. There was evidence before the jury that Oscar worked at the restaurantwhere he met Zavaleta, and it could be inferred he was a hard worker.And because Oscar testified, the jury could judge his credibility and demeanor for themselves. The same is true for the GHB expert, who testified as a qualified expert witness, and no evidence contrary to her findings was introduced.No improper vouching occurred.
(3) Misstating Evidence
Zavaleta also contends prosecutorial misconduct occurred when the prosecutor argued Agundez, a defense witness, was bribed, a claim Zavaleta claims was “wholly unsupported by the evidence.”The argument was as follows:
“[PROSECUTOR:] Now, I just want to briefly talk about Mr. Agundez. That was the first defense witness, the gentleman that came in here and said—gave some story about having consensual sex with—oral sex with Oscar. He was bribed.
“[DEFENSE COUNSEL]: Your Honor, I object. That’s factually inaccurate according to the testimony.
“THE COURT: Ladies and gentlemen, what the attorney is saying is you will read the instructions, it’s not evidence. So what I’m going to advise you that it’s your responsibility—if you have any questions about anything that any of the attorneys argue, to go back to the evidence itself as that will rule the day, so to speak, and it will be the evidence only that you are to consider in making your decision. [¶] The objection is overruled.
“[PROSECUTOR]: And I will clarify that. We’re not sure if money ever actually changed hands. At least there was an attempt to bribe him. The evidence shows that the defendant’s family was looking for someone to come in and tell a story in court. They were looking around and they found a downtrodden, homeless man and offered him money and perhaps a job … to come to court and lie and say that Oscar wanted to have oral sex and anal sex, and it was consensual basically insinuating that Oscar consented to this activity and that’s what makes what happened here with the defendant okay.”
In commenting about the truthfulness of a witness, a prosecutor commits misconduct only if she “implies she has evidence about which the jury is unaware.” (People v. Fernandez (2013) 216 Cal.App.4th 540, 561.) Insinuating the defense has been fabricated is misconduct only if that claim is unsupported by the evidence. (People v. Earp (1999) 20 Cal.4th 826, 862.)
For instance, in People v. McLain (1988) 46 Cal.3d 97, 112-113, a case relied on by Zavaleta, the court held it was improper for a prosecutor to state that “‘obviously, what happened, [defense investigators] shopped around, found somebody who was willing to come in and lie, but they didn’t get his story straight enough .…’” Finding the statement implied the defense intentionally presented perjured testimony, the court held it improper. (Ibid.)
But here, on cross-examination, Agundez admitted he was homeless and unemployed when Zavaleta’s family asked him to testify at Zavaleta’s trial.The admonishment to the jury was therefore sufficient.
(4) Appealing to the Passions of the Jury
Finally, Zavaleta argues the prosecutor improperly appealed to the passions of the jury by talking about the crimes from the victims’ perspective.The prosecutor asked the jury in closing arguments to “[i]magine being [Oscar’s] little brother … knowing that you were this close to where someone was doing this to your brother and you were unable to help him ….”The prosecutor argued, “This is a nightmare that they’re going to live with forever, and he did that and he needs to be held responsible for that.” The prosecutor also stated the victims were courageous in coming forward because rape carries an even greater stigma with respect to men.
A prosecutor may generally not appeal to sympathy for the victims by exhorting the jurors to step into the victims’ shoes and imagine their thoughts and feelings as crimes were committed against them. (See, e.g., People v. Shazier (2014) 60 Cal.4th 109, 146; People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Millwee (1998) 18 Cal.4th 96, 137.) By directing the jury to see the crime through the eyes of the victims, the prosecutor appealed to the jury’s sympathy for the victims, and as such, the statements were improper.
However, it is also true that a litigant’s appeal to sympathy does not grant a reviewing court carte blanche to reverse the judgment of the jury. Generally, “[a] defendant’s conviction will not be reversed for prosecutorial misconduct … 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.) In light of the extensive and substantial evidence of Zavaleta’s guilt presented at trial, we find there is no reasonable probability of a more favorable result in the absence of this misconduct. The testimony of the victims, the expert, and the police, as well as the photo and video evidence, supported the jury’s verdicts and findings.
3. Cumulative Impact
Zavaleta contends finally that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected Zavaleta’s claims of error and/or found any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
The judgment is affirmed.




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[1]All further statutory references are to the Penal Code unless otherwise stated.

Description Tomas Zavaleta, charged and convicted as Thomas Zavaleta, was convicted by a jury as charged with nine counts involving two victims on two separate dates: sodomy of an unconscious person (Pen. Code, § 286, subd. (f));[1] sodomy of an intoxicated person (§ 286, subd. (i)); oral copulation of an unconscious person (§ 288a, subd. (f)); oral copulation of an intoxicated person (§ 288a, subd. (i)); false imprisonment (§§ 236, 237, subd. (a)); sodomy of an unconscious person (§ 286, subd. (i)); sodomy of an intoxicated person (§ 286, subd. (i)); rape by foreign object of an unconscious person (§ 289, subd. (d)); and sexual penetration of an intoxicated person (§ 289, subd. (e)).The trial court sentenced Zavaleta to a total term of 12 years 8 months in prison.
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