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People v. Katzenberger

November 2, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
HERBERT AARON KATZENBERGER, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Sutter County, James Dawson, Judge. Affirmed. (Super. Ct. No. CRF071883).

The opinion of the court was delivered by: Cantil-sakauye, J.

CERTIFIED FOR PUBLICATION

Defendant Herbert Aaron Katzenberger was convicted by a jury of inflicting corporal injury on the mother of his child in violation of Penal Code section 273.5, subdivision (a).*fn1 He separately admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to state prison for a total of four years, comprised of the middle term of three years for his section 273.5 conviction and one year for the prior prison term enhancement.

His sole claim on appeal relates to a Power Point presentation used by the prosecutor in her closing argument to illustrate the reasonable doubt standard. The Power Point presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came onto the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted "beyond a reasonable doubt" even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty. The trial court overruled defendant‟s objection to the presentation. Defendant now claims reversal is required because the prosecutor‟s Power Point presentation was prosecutorial misconduct denigrating the reasonable doubt standard. We conclude the presentation was improper, but not prejudicial in this case. We shall affirm the judgment.

FACTUAL BACKGROUND

Defendant and Erica Esquivel dated for two and a half years and had a daughter together.

In early June 2007, Esquivel agreed to meet defendant at his home, so that he could visit with their then 11-month-old daughter. When Esquivel arrived shortly before 10:00 p.m., defendant was not at the house, but a man named Rudy was on the front porch. Esquivel was unhappy that Rudy was there and defendant was not.

Defendant drove up and parked in the driveway as Esquivel was getting out of her car. Defendant got out of his car and walked over to Esquivel, who was standing by her car door. Defendant and Esquivel argued. Esquivel threw her hands up, either to protect her face when she thought defendant was going to hit her or as a gesture of her being upset. Defendant then punched her in her left ribs with his fist. Esquivel fell to the ground. Defendant told her to get in the house, but Esquivel got back in her car and locked the doors. She drove a short distance away and called the police.

When officers arrived at approximately 10:45 p.m., Esquivel told them defendant had punched her and lifted her shirt to show them where he had hit her. Yuba City Police Officer Thomas Mathews used a low-powered flashlight to examine Esquivel‟s side, but did not see anything abnormal. Yuba City Police Officer Jason Davis looked at Esquivel‟s skin under the available dim street light. He did not notice any marks either.

Esquivel was in pain and had been crying, but she did not request medical treatment.

The next day Esquivel went to the hospital because of the pain in her ribs. Hospital personnel took an X-ray of her chest, but not of her left side. Esquivel was told she had no broken bones and was given pain medication.

The following day Esquivel went back to the police department to have photographs taken of the bruise that had developed where defendant hit her. Yuba City Police Officer Bill Williams took photos of the bruise, which were shown to the jury at trial. The bruise was approximately four inches in diameter and red to dark purple in color.

In late July 2007, Esquivel went to see her doctor because the bruise had gotten bigger, the area was swollen and she was still in pain. The doctor sent her back to the hospital where an X-ray of her left side was taken. The X-ray showed two of Esquivel‟s ribs were broken.

Defendant presented one witness, Amber Lovell. Lovell was an acquaintance of defendant. Lovell was in defendant‟s car on the day in June 2007 when defendant met Esquivel at his home. From her position in defendant‟s SUV, Lovell heard defendant and Esquivel talking and arguing behind her. She was able to turn around and look out the back window between the headrests on the back seat and see defendant and Esquivel. She admitted she did not watch defendant for the entire time he was talking to Esquivel, but claimed she could hear everything that was said, even though the windows were rolled up. She testified she never heard any blows being struck and never saw Esquivel fall to the ground. Lovell testified ...


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