P. v. Elpedes

Filed 6/20/08 P. v. Elpedes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Ruben S. Elpedes was convicted by a jury of perpetrating a lewd act on a child (Pen. Code,  288, subd. (a)), and was sentenced to the midterm of six years in prison.[1] Defendant contends on appeal that the judgment must be reversed because the prosecutor committed misconduct in his opening statement, and the court abused its discretion in denying his motion for a mistrial based on the allegedly improper remarks. We find no misconduct, prejudice, or abuse of discretion, and we affirm the judgment.

I. BACKGROUND

The victim, (V.), is defendants daughter; she was eight years old at the time of the offense. Defendant and V.s mother (Mother), separated in 1999, and defendant had visitation with V. every other weekend. V. was visiting with defendant on January 22, 2005, at a time when he lived with his friends Edwin and Bella T. and their children in their home. Defendant slept on a sofa in the living room in the T.s house; when V. came to visit he put a cot next to the sofa to make a bed for them to sleep in. The T.s went to Tracy that day and left defendant and V. alone from 6:00 p.m. to 9:30 p.m.

Bella testified that V. was crying when they returned home; defendant said that V. was in pain and having a hard time urinating. When Bella noticed a spot of blood on a tissue V. used to wipe herself in the bathroom, Bella told defendant to call Mother. Defendant spoke with Mother on the phone and agreed to return V. to her. They met, defendant gave V. to Mother, and Mother and her niece (Flores) drove V., who was shaking and crying, to Washington Hospital. Flores and V. went into an examination room while Mother filled out documents for V.s admission to the emergency room for vaginal bleeding. Flores testified that V., still shaking and crying, broke down and told her, He touched me.

V. testified at trial that while she was trying to sleep at the T.s house earlier that evening, defendant pulled down her pajama pants and rubbed her vagina over her panties, causing it to bleed. She said that defendant had touched her like that once before when she was seven years old, and had washed her private part in the shower on a number of occasions; he sometimes stopped washing her when she told him to stop and told him that she could wash herself.

Mother had taken V. to see Dr. Chi Co for a check up in December 2004 and Co found a trace of blood in V.s urine, a symptom consistent with a urinary tract infection. Cos notes of the appointment stated: Mother concerned of child visiting father, and father would give child a bath and claim to wash her, including her private part. Mother testified that about three months before the January 22 incident, V. told her that defendant was bathing her. Mother said she got angry when she heard this and told defendant that it was inappropriate for him to be bathing V. at V.s age. Although Mother, a child protective services worker, realized that the bathing could have involved conduct of a sexual nature, she thought that defendant was just being stupid, and was shocked to learn of V.s revelation at the hospital.

The police were summoned to Washington Hospital and escorted V. to Childrens Hospital, where she was examined on the morning of January 23, 2005, for sexual abuse by Dr. Rachel Gilgoff. Gilgoff found no injuries that would have caused bleeding; it was an unremarkable exam with non-specific findings. Gilgoff said that a study had found that physical exams were inconclusive in 96 percent of cases of suspected child sexual abuse.

V. was interviewed on January 24, 2005, at the Child Abuse Listening Interview and Coordinating Center (Calico) in San Leandro, and gave an account that was consistent with her trial testimony.

Gail Payton, an emergency room nurse at Washington Hospital on the night of V.s admission, testified that she saw blood on V.s panties; the blood was dried and dark, not the pink color of blood mixed with urine seen with urinary tract infections. The panties were not preserved as evidence by the police.

A prosecution witness testified about the behavior associated with Child Sexual Abuse Accommodation Syndrome.

Defendant testified and professed his innocence.

Mother told the officer who was dispatched to Washington Hospital on the night of the incident that she had recently petitioned for full-time custody of V., but the court had instead increased V.s time with defendant. The officer said Mother found that result shocking and felt that the system had failed her.

Mother testified on direct examination that defendant was emotionally abusive of her in front of V., calling her a whore and throwing bags and shoes at her. She said that she was really fearful of him after we got separated. She testified on cross-examination that she had wanted sole custody of V. because defendant was homeless. She admitted that she had not feared for V.s safety in defendants custody, and said that she did not believe defendant would harm V. [i]f hes sober and not on drugs. She said that she separated from defendant because he was abusive toward her and had an anger problem. They had been in and out of the courts, and had both been ordered to take anger management classes.

When Mother was interviewed by the District Attorneys office in April of 2006, she said that, on the drive to Washington Hospital with V., Flores was in the backseat questioning V. about what had happened to her and why her vagina was bleeding. In an April 2006 interview and at trial, Flores denied asking V. any questions in the car. Mother testified at trial that, when they were in the car, she and Flores asked V. what had happened; when V. just cried without answering, Mother decided to take her to the hospital. When Mother was cross-examined about her statement that Flores had questioned V. in the backseat, she said that she had meant a seat at the hospital, where Flores was sitting behind her. When she was quoted more of the statement showing that it referred to the drive to the hospital, Mother said that her memory of the event was better at trial than it was when she furnished the statement.

In her Calico interview, V. said that the first person she told about defendants conduct was [t]he doctor. At trial, V. initially testified that she told Mother and Flores on the way to the first hospital that he [defendant] touched me and it was bleeding. She later testified that she did not tell them before they got to the hospital what defendant had done to her.

Flores and Kathleen Pelton, another nurse on duty at Washington Hospital on the night of the incident, testified that Mother appeared to be in shock after V.s disclosure. The prosecutor argued to the jury that Mothers reaction showed that she had not coached V. to accuse defendant.

II. ISSUES

A. Prosecutorial Misconduct

(1) Record

Defendant filed a pretrial motion in limine 4B to exclude other crimes evidence on the grounds that such evidence would be inadmissible propensity evidence, and more prejudicial tha[n] probative. When the matter was discussed before opening statements, the prosecutor argued: If the defense intends to get into evidence that there was a custody dispute between mom and dad, thentheres a lot of reasons for this custody dispute. And, basically, the only reason to get into that is to attack the moms credibility, and then Im attempting to rehabilitate or establish the credibility of my witnesses. So that opens up a lot of doors. There have been many police reports, including the one the defendant is on probation for now, involving drug use, involving threats against the victim, involving display of a knife against the victim, involving violation of the stay-away order. So if the defense is going to get into this custody battle, then that opens the door. Defense counsel said he did plan to introduce evidence that Mother had tried to get full custody of V., but argued whether that opens the door to all of his prior run-ins with this woman, I would suggest that might be going a little overboard.

After further discussion, the prosecutor said that he might be able to get his point across with a single question [to Mother]: Did you make any reports to law enforcement concerning . . . these activities? Something to that effect. And thats the most I would ask about it. And I havent thought through entirely in my mind how I would ask it . . . . Defense counsel later elaborated that [i]ts not just the custody issue that I intend getting into. Its simply the relationship between the father and the mother, that it was a relationshipcertain amount of animosity there that gives rise to the possibility that because of this animosity, its more likely that . . . theyre going to assume something happened to this child and, to a certain extent, they coached this child to a certain extent because of this animosity. The prosecutor responded: I think [defense counsel] stated it well. The point is to attack the moms credibility to show . . . mom has a vendetta and is coaching the daughter. And thats why I need to establish her credibility first. The court replied to the prosecutor: So you can get into that to whatever extent you think is necessary in your case in chief . . . .

While it thus appeared that the in limine motion had been overruled, the clerk asked the court to confirm its ruling and the court said, 4B is granted. And 4B is granted because its not propensity evidence. Its granted to the extent that its not propensity evidence, but they can get into it for other reasons. So its granted.

The court instructed the jury before opening statements that: You must determine what the facts are in this case. You must use only the evidence that is presented in the courtroom. [] Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I tell you to consider as evidence. [] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys will discuss the case, but their remarks are not evidence.

The prosecutor made the following remarks in his opening statement, with those at issue in the appeal in italics: Now, the defense is going to point out that mom and dad dont like each other. In fact, its pretty fair to say that they hate each other. When mom was with dadand theres pretty good reason for that. But when mom was with dad, he was abusive. When [V.s] mom was with the defendant, he was abusive to her. She had to call the police on him. He used methamphetamine on a regular basis. And so, basically, she broke up with him, and he kind of never got over her. And so he continued to harass her, to call her house, to call her names. Even [V.] would remember, when he would drop [V.] off to her mom, calling the mom the F word, B word, stuff like that. So mom doesnt like the defendant at all, and the defendant doesnt like mom. And so thats going to be a defense for you to consider, because Im sure the defense will try to present evidence that mom is somehow coaching the daughter.

The defense requested a sidebar conference and moved for a mistrial based on the statements about spousal abuse and methamphetamine use, which counsel submitted were outrageous and ha[d] nothing to do with this trial. The parties argued about whether the statements were authorized by the in limine rulings, and the court said that it would excuse the jury for lunch and check the record. After consulting the court reporter, the court said that while there was no specific mention of methamphetamine [or] spousal abuse in the in limine discussions, there was a general understanding that [the prosecutor] would be allowed to get into the level of contentiousness in the relationship and the custody battles.

After further argument, the court denied the mistrial motion as follows: I would have preferred that the People be more specific about what they wanted to bring up, particularly in opening statements. I would have preferred some specifics regarding drug use and some specifics regarding any spousal abuse. However, given that the history of this relationship and the relationship itself has become the focus of the trial and will be the focus of the defense, I am goingI think that the relationship thats been going on has to come out. So I will deny the motion for mistrial.

Defense counsel then asked if there would be any limit to the information the prosecution could elicit concerning the relationship. Counsel specifically objected to any reference to defendant being a regular methamphetamine user unless Mother could testify that she actually saw him using methamphetamine. Following further argument, the court said it would allow Mother to testify that she found a meth pipe and suspected that defendant was using methamphetamine because of the pipe, but would not permit evidence of any arrests for methamphetamine. The court told the prosecutor to make no further mention of drug use or domestic violence in his opening statement. When the jury returned from lunch, the court repeated the instruction that statements of counsel were not evidence.

The subject of other crimes evidence resurfaced during Mothers direct testimony, when the prosecutor asked for a sidebar conference after she said that she was very fearful of defendant following their separation. After the court excused the jury for the day, the prosecutor advised the court that the reason Mother was fearful was because of his methamphetamine use and his violence when they were together. A contentious discussion ensued in which the court told the prosecutor at one point it was not going to play these games with you, but the court initially indicated that it would allow the prosecution to explore defendants violence and drug use with Mother, and ultimately said that it would rule on the admissibility of such evidence in the morning. When the trial resumed the next day, the court told the prosecutor, I am not going to allow you to get into any meth use or domestic violence. Well . . . see how far the defense opens the door, and then well go from there. The prosecution did not raise the subjects again.

(2) Discussion

Defendant contends that the prosecutor committed deliberate misconduct by referring in his opening statement to evidence the court had excluded in ruling on the in limine motion. The People respond that the prosecutors opening remarks about abuse of Mother and methamphetamine use fell squarely within that ruling. Both sides have room for argument on the propriety of the opening statement because the decision on the in limine motion was unclear.

On the one hand, the court said that it was granting the motion to the extent that its not propensity evidence, a puzzling statement given that the motion sought to exclude evidence that was propensity evidence. On the other hand, the court said, they [the prosecution] can get into it [other crimes evidence] for other reasons [reasons other than propensity, presumably]. The latter statement appeared to permit use of other crimes evidence on the prosecution theory that the evidence was relevant to explain Mothers desire for sole custody of V. This interpretation was consistent with what the court told the prosecutor shortly before it explained its ruling on the motion, namely, that you can get into that [evidence bearing on Mothers credibility] to whatever extent you think is necessary in your case in chief. Since the opening remarks were at least arguably permitted by the courts ruling, making them cannot be deemed deliberate misconduct.

Defendant submits that the prosecutor sought to mislead the court as to the scope of the other crimes evidence he wanted to elicit when he said, during argument on the in limine motion, that he might need to ask Mother only a single question about her reports to law enforcement concerning these activities. However, this statement did not disclaim an intent to inquire into the activities of drug use and spousal abuse because the prosecutor had previously identified drug use, threats, and display of a knife as the subjects of the police reports of defendants other crimes.

Defendant notes that the court stated, in ruling on the mistrial motion, that it wished the prosecutor had been more specific about what he wanted to broach in the opening statement, but that remark was not tantamount to an accusation of misconduct. Further discussion of the other crimes evidence showed that, when it ruled on the mistrial motion, the court was entertaining the possibility that evidence of defendants methamphetamine use might be admissible. Thus, while the prosecutor was instructed to avoid further mention of drug use or domestic violence in the opening statement, he had not necessarily strayed into a forbidden area in mentioning those subjects.

In defendants view, any doubt about the prosecutors misconduct was dispelled by his later attempt to introduce evidence of defendants methamphetamine use and domestic violence during Mothers examination. However, it was not misconduct to argue out of the presence of the jury for admission of such evidence. Although there was some friction between the court and the prosecutor during discussion of the issue, the court did not reject the argument out of hand; it took the matter under submission and ruled on it the next day. These subsequent developments did not confirm the impropriety of the opening statement; they showed that the subjects the prosecutor mentioned remained in play well into the trial.

Accordingly, we hold that no prosecutorial misconduct occurred.

Even if the prosecutors opening remarks could be characterized as misconduct, the error was not prejudicial. Prosecutorial comment is reversible as misconduct under the federal Constitution when it  so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process  ; improper comment that falls short of rendering the trial fundamentally unfair is error under state law. (People v. Cash (2002) 28 Cal.4th 703, 733.) [I]n cases where jurors are improperly exposed to certain factual matters, the error is usually tested under the standard set out in People v. Watson (1956) 46 Cal.2d 818, 836 [Watson]. (People v. Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12.)

Since the comments about methamphetamine use and spousal abuse in the opening statement were not repeated and did not render the trial fundamentally unfair, the Watson standard applies. The jury learned of Mothers custody dispute with defendant, and the reasons for that dispute were relatively immaterial. The subjects mentioned by the prosecutor were brought out in Mothers testimony when she alluded to drug use on the part of defendant and described his abusive behavior toward her. The jury was instructed three timesbefore opening statements, during opening statements, and before deliberationsthat statements of counsel were not evidence. For these reasons, it is not reasonably probable that the challenged comments could have affected the outcome.

B. Mistrial Motion

Defendant contends that his motion for a mistrial was erroneously denied, but the trial court has broad discretion with respect to such motions (People v. Chatman (2006) 38 Cal.4th 344, 370), and there was no abuse of that discretion in this case. Defendants mistrial argument hinges on his claim of prosecutorial misconduct and fails along with that contention. The court could reasonably decide that the prosecutors remarks would cause no incurable prejudice because the problems in the parents relationship, including other crimes evidence, would eventually be revealed.

III. DISPOSITION

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

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Swager, J.

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Margulies, J.

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[1] The jury was unable to reach a verdict on a charge of continuous sexual abuse (Pen. Code,  288.5, subd. (a)), a mistrial was declared as to that count, and it was dismissed on the prosecutions motion.