Filed 8/4/26 P. v. Flores CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065324
v. (Super. Ct. No. 19NF1039)
JUAN CARLOS MENDEZ FLORES, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Jeannie M. Joseph, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Cobi S. Furdek, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Juan Carlos Mendez Flores1 (Mendez) appeals from
his convictions for child sex offenses, contending the prosecutor committed
misconduct by improperly vouching for one victim’s credibility. We read the
prosecutor’s statements as reasonably commenting on that victim’s candid
concessions in her testimony. We therefore affirm.
FACTS
When she was eight years old, the victim lived with six other
people, including her older sister and Mendez, who was the brother of her
mother’s boyfriend. One night, Mendez slept in the same bed as the victim
and her sister. The victim woke up to Mendez touching her vaginal area with
his hand, trying to insert a finger into her vagina. The victim tried to get him
to stop, but Mendez just moved her hand away. Mendez also grabbed her face
and kissed her on the cheek. The victim then moved to the floor and fell back
asleep.
When questioned by the police about the incident, the victim lied
and told the officers that her father had touched her inappropriately. The
victim was later interviewed a second time at a Child Abuse Services Team
(CAST) facility. In that interview, she described sleeping in the bed with her
sister and Mendez that night and said she felt him tickling her “privacy
1 At the start of trial, the court thoughtfully asked defendant
what he preferred to be called, and he said, “Mendez is fine.” We will honor
that preference in this opinion, though he has been input into our electronic
case management system as Flores. We join others with lamenting
systematic difficulty with accommodating “the dominant custom throughout
all of Latin America and Spain,” which is “to utilize both paternal and
maternal surnames in self-identification.” (Cherena Pacheco, Latino
Surnames: Formal and Informal Forces in the United States Affecting the
Retention and Use of the Maternal Surname (1992) 18 T. Marshall L. Rev. 1,
11 [discussing the primer apellido (paternal surname) and segundo apellido
(maternal surname)].)
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part.” She said she screamed when he touched her and she did not know why
no one could hear her. During this interview, she admitted lying about her
father touching her, and said Mendez asked her to lie and threatened to
touch her again. The victim said in the same interview her mother had also
told her to lie to police about Mendez, and she was afraid her mom would hit
her if she found out she had told the truth. She said this was the only
incident involving Mendez, but she added later in the CAST interview that
Mendez sometimes smacked her on her butt.
Mendez was initially charged with 21 offenses against four
victims. Two charges were later dismissed. As is relevant here, he was
charged with one count of sexual penetration of a child 10 years old or
younger (Pen. Code, § 288.7, subd. (b)2) and three counts of lewd acts upon a
child under 14 (§ 288, subd. (a)), one count each for touching her genitalia,
kissing her cheek, and touching her buttocks.
At trial, the victim testified Mendez put two fingers between her
labia but did not penetrate her vagina. She testified: “Q. And when you felt
his hand touching your vagina, at any point did he insert a finger inside your
vagina? A. No. Q. You don't remember him—A. No. Q.—inserting a finger at
all? A. No.”
The victim also testified she did not remember if Mendez ever
touched her buttocks. She testified: “Q. Do you remember if [Mendez] ever
touched your—your butt, your buttocks area at all? A. No. Q. Do you
remember him ever touching your anus specifically? Do you remember
anything like that? A. I don't remember.”
2 All statutory references are to this code.
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The victim also conceded she had exaggerated in the CAST
interview when she described “screaming” when Mendez touched her. She
said she originally accused her dad because her mother told her if she told
the truth about Mendez, she and her sister would have to go and stay with
their father, who she hated.
In closing argument, the prosecutor told the jury: “[the victim]
came into court as a 14-year-old girl. She did not try to embellish anything.
She didn’t try to make herself look better. She admits on the stand that when
she was younger, she lied about these things with her dad. But she was clear
and unwavering that this defendant, Juan Mendez, touched her vagina; that
he kissed her cheek. [¶] And she was honest from that stand when she said
she didn’t remember a finger going inside her vagina. She was honest when
she said ‘I don’t remember him touching my butt.’ She’s not lying about that.
She honestly doesn’t remember. That’s a hallmark that you can trust her as a
credible witness.”
Defense counsel objected that the prosecutor was vouching for the
victim. The court told the jury, “All right. Again, you will follow the law as I
provide it to you, and what the attorneys say is argument.” The prosecutor
then said the victim had “zero motive to lie” and was “not testifying with any
agenda.”
The jury found Mendez guilty on 18 counts. It acquitted Mendez
of one count of committing a lewd act by touching the victim’s buttocks. One
count had been dismissed before trial. The court sentenced Mendez to 75
years to life plus 2 years.
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DISCUSSION
Mendez contends the prosecutor’s comments during closing
arguments were improper vouching. 3
A “‘prosecutor is prohibited from vouching for the credibility of
witnesses or otherwise bolstering the veracity of their testimony by referring
to evidence outside the record.’” (People v. Fernandez (2013) 216 Cal.App.4th
540, 561 (Fernandez).) “Misconduct arises only if, in arguing the veracity of a
witness, the prosecutor implies she has evidence about which the jury is
unaware.” (Ibid.) Otherwise, “‘so long as a prosecutor’s assurances regarding
the apparent honesty or reliability of prosecution witnesses are based on the
“facts of [the] record and the inferences reasonably drawn therefrom, rather
than any purported personal knowledge or belief,” her comments cannot be
characterized as improper vouching.’” (Ibid.)
The prosecutor’s statements about the believability of the victim
were adequately “‘based on the “facts of [the] record and the inferences
reasonably drawn therefrom.”’” (Fernandez, supra, 216 Cal.App.4th at
p. 561.) The prosecutor expressly noted the victim “admit[ted] on the stand”
that she had falsely blamed her father. Similarly, the prosecutor expressly
noted the victim “was honest from that stand when she said she didn’t
remember a finger going inside her vagina. She was honest when she said ‘I
don’t remember him touching my butt.’” In other words, the prosecutor
reasonably drew an inference about the victim’s honesty from the evidence—
namely, from her own candid concessions about her prior inconsistent
3 Mendez contends the court failed to sustain his objection. It
certainly did not say the word “sustained,” nor did it expressly strike the
statements. We will presume the court impliedly overruled the objection for
sake of argument, despite its immediate admonition to the jury.
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statements and her memory lapses. The prosecutor said nothing that
reasonably suggested the prosecutor was basing that inference on “‘evidence
outside the record’” “about which the jury [was] unaware.” (Ibid.)
Mendez relies on a case that illustrates the distinction between
proper, evidence-based inferences and improper vouching. He cites United
States v. Kerr (9th Cir. 1992) 981 F.2d 1050, 1053 for the proposition that
“the prosecutor’s assurances that his witnesses were ‘candid,’ ‘honest,’ and
‘not hoodwinking you’ were likely to have affected the jury’s verdict.” But in
Kerr, the prosecutor repeatedly suggested he knew something about the
witness’s candor: “‘I think he . . . was very candid,’” “‘I think he was honest,’”
and “‘were they hoodwinking you when they testified? I think not.’” (Ibid.,
italics added.) Expressing this kind of personal knowledge about a witness’s
credibility is what impermissibly puts “‘the prestige of the government
behind the witness[es]’” (Ibid.) In contrast, here the prosecutor never told the
jury what the prosecutor thought, instead permissibly offering an evidence-
based conclusion based on the victim’s testimony.4
Mendez also asserts the word “‘hallmark’” shows the prosecutor
was referring to his “own experience as a player in the judicial system,” and
conveying “an experienced-based [sic] judgment that certain styles of
testimony are more associated with truth than others.” We’re not so sure. We
read that comment as merely invoking the commonsense principle that a
person who can admit her mistakes and uncertainty is more credible than
someone who does not take responsibility for prior inconsistencies or memory
lapses.
4 Having concluded there is no prosecutorial misconduct, we need
not address whether the conduct was prejudicial to Mendez.
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DISPOSITION
The judgment is affirmed.
SCOTT, J.
WE CONCUR:
GOODING, ACTING P. J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution
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