IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
LUIS GUTIERREZ, DEFENDANT AND APPELLANT.
Super. Ct. No. 07F05576
The opinion of the court was delivered by: Scotland,j.*
P. v. Gutierrez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Luis Gutierrez sexually molested the daughter of his girlfriend, beginning when the daughter was 5 years old and continuing until she was 13 years old. The evidence against him was overwhelming. When confronted by investigating officers, defendant admitted engaging in oral copulation and numerous acts of sexual intercourse with the young girl. At trial, it was undisputed that he engaged in lewd and lascivious acts with the girl; his only defense was the prosecution had failed to prove beyond a reasonable doubt that the acts were committed by "force, fear, menace, duress or retribution," rather than with the girl's consent. The jury found otherwise.
Defendant was convicted of two counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)(1); further section references are to the Penal Code unless otherwise specified), 16 counts of lewd and lascivious acts by force (§ 288, subd. (b)(1)), and two counts of aggravated sexual assault, namely, oral copulation (§ 269, subd. (a)(4)) when the victim was under 14 years old. He was sentenced to state prison for two indeterminate term of 15 years to life, to be served consecutively to each other and consecutively to an aggregate determinate term of 36 years.
On appeal, defendant contends (1) jury instructions given by the trial court regarding other-crimes evidence (CALCRIM No. 1191), and the prosecutor's argument regarding the other-crimes evidence, unconstitutionally reduced the prosecution's burden of proof; (2) the court erred in denying his request to introduce the entire transcript of an incriminating telephone conversation he had with a woman named Lila (the prosecution introduced the portion of the conversation in which defendant incriminated himself); (3) the prosecutor committed misconduct during closing argument to jurors; and (4) the cumulative effect of these errors requires reversal of the judgment.
We shall affirm the judgment.
The prosecution charged defendant with acts that he committed against the victim when she was between eight and 13 years of age. However, over defendant's objection that the evidence was cumulative and unduly prejudicial, the trial court granted the prosecution's in limine motion to introduce testimony by the victim that defendant molested her between the ages of five and eight.
In closing argument, and without any objection by defense counsel, the prosecutor talked to the jury about the uncharged molestations of the victim: "We have evidence of other sexual offenses and what that relates to, because in this particular case our charges start when [the victim] is 8 years old, [defendant] admits to forty times of doing this to [her]. . . . [¶] He admits to starting it at age 8. Well, that is where we decided to start charges. But we know from the testimony of [the victim] it didn't start at 8, it started at 5. And so, do you not hear about what happened starting at age 5? Well, obviously for you to get the full picture of the circumstances of the molestation, of the relationship of the Defendant to [the victim], you have to get the full picture here. [¶] Now that you are getting the full picture, you can do something with that evidence. You can consider it. You can consider that it corroborates what she says. Evidence has been introduced for the purpose of showing the Defendant engaged in sexual offenses on more than one occasion other than what is charged in this case. And what I'm talking about is from age 5 up to age 7, he is not charged with those crimes, but she did describe that conduct. [¶] If you find the Defendant committed a prior sexual offense, you may find he has a disposition to commit further sexual offenses. Wow, that is huge. He has a character -- if you believe what [the victim] tells you about being molested starting at age 5 up until age 7, you can find that he has a character to commit sexual crimes against [the victim]. If you find the Defendant has this disposition, this character, you may, but are not required, to infer that he was likely to commit and did commit the crimes for which he is accused of [sic]. So you can see that that is a very, um [sic], powerful piece of evidence that you can consider and you can see how you would use that evidence. [¶] Of course, there is a burden of proof with respect to presenting that evidence and you have to find beyond a preponderance of the evidence that that occurred. It's not the reasonable doubt standard. If you believe [the victim] by a preponderance of the evidence, which is actually a lower burden, you can use that evidence to show he has a character to commit the crimes and that he likely committed the crimes charged."
Later, without defense objection, the trial court instructed the jury with CALCRIM No. 1191 regarding the evidence of uncharged crimes: "The People presented evidence that the defendant committed the crime of lewd or lascivious act with a child by use of force that was not charged in this case. . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit a lewd or lascivious act with a child by use of force, as charged here. If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of a lewd or lascivious act with a child by use of force. The People must still prove the charge beyond a reasonable doubt."
For reasons that follow, we reject defendant's challenges to the prosecutor's argument and the court's instructions on evidence of uncharged crimes.*fn1
Evidence Code section 1108 "allows evidence of the defendant's uncharged sex crimes to be introduced in a sex offense prosecution to demonstrate the defendant's disposition to commit such crimes." (People v. Reliford (2003) 29 Cal.4th 1007, 1009 (hereafter Reliford); see People v. Falsetta (1999) 21 Cal.4th 903, 910-922.) By enacting Evidence Code section 1108, the Legislature "'declared that the willingness to commit a sexual offense is not common to most individuals; thus, evidence of any prior sexual offenses is particularly probative and necessary for determining the credibility of the witness.'" (People v. Falsetta, supra, 21 Cal.4th at p. 912.)
Defendant argues that CALCRIM No. 1191 improperly reduced the prosecution's burden of proof and "over-emphasized a portion of the victim's testimony over that of her remaining testimony." He also contends the prosecutor committed misconduct in arguing incorrect uses of the other-crimes evidence and "exploiting the improper instruction." Both contentions fail.
Defendant's claim that the prosecution unfairly reduced the burden of proof is forfeited by his failure to so object in the trial court. (E.g., People v. Pierce (2002) 104 Cal.App.4th 893, 898.) In any event, it fails on the merits.
Defendant's claim of error is based on his view that the jury instructions on use of prior sex offenses allowed the jury to apply a reduced burden of proof (a preponderance of the evidence, rather than beyond a reasonable doubt) to the charged offenses. However, the California Supreme Court rejected this argument when it upheld the constitutionality of the 1999 version of CALJIC No. 2.50.01. (Reliford, supra, 29 Cal.4th at pp. 1012-1016.) The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to CALCRIM No. 1191 (given here) in its explanation of the law on permissive inferences and the burden of proof. By analogy to Reliford, we reject defendant's argument that CALCRIM No. 1191 unconstitutionally reduced the prosecution's burden of proof.*fn2
Having concluded that the jury was properly instructed with CALCRIM No. 1191, we reject defendant's claim that the prosecutor "exploit[ed] the improper instruction."
Defendant also takes issue with the prosecutor's argument that the victim's testimony about uncharged offenses was evidence "corroborating" her testimony about the charged offenses. In his view, a witness "cannot thus corroborate herself with additional accusations" because "corroboration" requires support from evidence independent of the witness's testimony.
Even if the prosecutor's use of the word "corroboration" was incorrect, it is apparent from the use of the word in context that the prosecutor was urging the jury to accept the victim's testimony that defendant began molesting her as early as age five and, if it believed her testimony on this point, to infer that defendant had a propensity to, and did in fact, commit the crimes with which he was charged. That argument is consistent with CALCRIM No. 1191 and was not error.
The victim's mother (hereafter mother) testified that, after defendant was arrested for molesting her daughter, mother received a telephone call from a man in Mexico. She described the call as follows: "He told me that if I loved my family in Mexico very much and that the same way that I had put [defendant] in jail, that he [the caller] would give me eight days to get [defendant] out and if I didn't do it, my family would pay for it. And that unless I wanted for him to do something to my family, to get [defendant] out, and that he -- he was [defendant's] brother and that his name was Gabriel. That he would call me in eight days -- eight days later because he wanted [defendant] out and if not my family would pay for it." The call made her afraid and worried about testifying at trial.
The prosecutor also obtained the trial court's permission to introduce two pages of a transcribed jail telephone call between defendant and a woman named "Lila." The transcript can be summarized as follows: Defendant told Lila to arrange for mother "to be called from Mexico" and be told that "if she doesn't get me out, you know what can happen" because "she has her parents over there in Mexico." "Just like she put me in, she has to get me out," defendant said to Lila.
When the trial court overruled defense objections that the telephone call evidence was irrelevant and prejudicial (Evid. Code, § 352), defense counsel argued defendant's statements to Lila could be interpreted as a continuation of a conversation about money that occurred in the same telephone call. Thus, counsel sought to have more pages of the telephone conversation transcript introduced into evidence "for completeness" pursuant to Evidence Code section 356, and to "put it in context [so] that [defense counsel could] argue about the money."
Responding that defense counsel "can always introduce evidence. I'm not precluding you from introducing evidence," the trial court suggested that a witness to the telephone conversation could testify about it. But the court denied defendant's motion to add additional pages to the portion of the transcript sought to be introduced by the prosecutor. The court reasoned that the additional pages of transcript of the telephone conversation between defendant and Lila do "not seem to be connected in terms of the statements that are being made" about mother and about her having put defendant in jail.*fn3
The prosecutor then introduced the two-page portion of the transcribed taped jail telephone conversation allowed by the trial court.
There was no error, as we will explain.
Evidence Code section 356 states: "Where part of [a] . . . conversation . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . 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." The purpose of Evidence Code section 356 "'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. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which "have some bearing upon, or connection with, the admission . . . in evidence."' [Citation.]" (People v. Williams (2006) 40 Cal.4th 287, 319.)
Defendant contends that the court's ruling -- preventing him from presenting evidence of other statements made during his phone conversation with Lila -- violated his constitutional rights to present a defense and to get a fair trial. Because he did not object at trial on this ground, he has not preserved the issue for review on appeal. (See People v. Harrison (2005) 35 Cal.4th 208, 239.) In any event, the claim lacks merit.
"Evidence Code section 356 permits introduction of statements 'on the "same subject"' or which are necessary for the understanding of the statements already introduced. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 419-420.) This "same subject" requirement should not be read to "'draw narrow lines around the exact subject of inquiry.'" (People v. Zapien (1993) 4 Cal.4th 929, 959.) However, the statute will not support the introduction of statements unless they have "'"some bearing upon, or connection with"'" statements that have been admitted. (Id. at p. 959, italics omitted; see also People v. Arias (1996) 13 Cal.4th 92, 156.)
A trial court's decision to exclude evidence will be upheld unless it constitutes an abuse of discretion. (People v. Williams, supra, 40 Cal.4th at pp. 317, 319; People v. Parrish (2007) 152 Cal.App.4th 263, 274.)
The 22-page transcript of the entire telephone conversation between defendant and Lila can be summarized as follows: Referring to mother generally as "the lady" or "her," defendant denied to Lila in the first part of their telephone conversation that the accusations against him are true; and Lila explained she told their mother what had happened. When Lila said she had not yet received a letter he sent, defendant warned her "you can't speak too much here" and asked her to take photographs of "her and another one of the little girl" to his "Ma." Defendant then told Lila that "the bitch already left me like a dog," took from him $30,000 in cash, and sold his truck. He and Lila discussed whether Lila could retrieve his bank card, tell the bank "[n]ot to let the woman go take out even a nickel" from his account, and retrieve his things from mother.
The portion of the telephone conversation allowed in evidence then begins with defendant saying: "And you, I wish you'd come for me to explain to you one thing that I want to tell you because over the telephone I can't say anything . . . . Because in the end you're going to have to do something else from here for her to get me out. . . . We have to do something else. You can imagine what else is what can be done." This is the beginning of the two-page segment shown to the jury. After defendant directed Lila to have someone call "her," i.e., mother, from Mexico because mother's parents are there, he told Lila: "Just like she put me in, she has to get me out. Lila responded: "Yes, well, yes, uh, give it a try for her to get you out," and defendant said: "Yeah, you guys, you guys are the ones who should speak. Like you should be the one to call from over there because I can't speak at all from here . . . . Call my Ma or Guero, call Guero, for someone, someone to call." Thus ended the portion of the transcript provided to the jury.
The remaining portion of defendant's conversation with Lila continued as follows: Defendant told Lila, "In that letter that I sent you. . . . I gave her mother's telephone number. I have around 70 thousand, 80 thousand pesos over there." Defendant then told Lila to send his brothers to fetch the money. The telephone conversation ended with a discussion of how long it takes the mail to travel, and how much it costs for defendant to call from jail. Defendant also urged Lila again to open a bank account and explain to the bank (using his birth date and social security number) that "this fucking bitch" should not be allowed to take money from his account. Lila promised to speak to Guero; and defendant instructed Lila to tell Guero what to say. Finally, defendant told Lila that his boss was going to speak to mother "to see if she would withdraw the charges."
Defendant insists on appeal that the portion his conversation with Lila allowed into evidence "was taken out of context and its meaning distorted by the exclusion of the telephone conversation leading up to it" and prevented him from "putting his alternative explanation" before the jury. We are not persuaded.
We agree with the trial court that defendant's instruction to Lila about arranging for someone in Mexico to contact mother and communicate "that if she doesn't get me out, you know what can happen" was not the "same subject" (Evid. Code, § 356) as his unhappiness that mother had sold his belongings, or his desire to make sure she did not take more money out of his bank account. And the trial court did not abuse its discretion in concluding that the excluded statements were unnecessary to make the other statements understood.
Because the omitted parts of the telephone conversations were neither on the "same subject" nor "necessary" for the understanding of defendant's statements in the portion of the conversation that was introduced in evidence, Evidence Code section 356 did not compel the trial court to create an opportunity for the defense to offer an "alternative explanation" for the damaging evidence.
Having concluded the court did not err, we reject defendant's assertion that the error was made prejudicial by the prosecutor's reliance on the evidence during closing argument.
The prosecutor argued to the jury that defendant's conversation with Lila showed an awareness of guilt and corroborated (1) mother's testimony about having received a threatening call from defendant's brother, (2) mother's testimony that she feared defendant, and (3) the victim's testimony that defendant threatened her.
Specifically, the prosecutor stated: "Defendant's threat to [mother]. This is, again, huge. . . . If you find that someone who is authorized by the Defendant tried to create false evidence --provide false testimony or conceal or destroy evidence, it may show the Defendant was aware of his guilt. [¶] Again pretty powerful piece of evidence there and this is just another layer on top of a layer on top of layer. You could have convicted with [the victim's] testimony alone, if you believed it beyond a reasonable doubt, but that is not all we have. [¶] He says, I wish you'd come for me to explain to you one thing that I want to tell you because over the phone I can't say anything. We have to do something else. You can imagine what else has to be done. Like for her to be called from Mexico. For her to be called that if she doesn't get me out, you know what can happen, huh? Because she has her parents over there in Mexico. And for someone to call from over there and, well, you can imagine what has to be said to get me out of here. She has to get me out of here. [¶] And you heard [mother] testify about getting a phone call from someone, a man claiming to be the Defendant's brother from Mexico, telling her if she does not get him out in eight days something is going to happen to her family in Mexico. And she cried when she explained that to you and testified about that because of her fear. [¶] You wonder if this man is capable of threatening a 5 years [sic] old, you got it in black and white. He is capable and he -- we have him arranging for [mother] to be threatened to get him out. Why does [mother] have to get him out? This is a man that is still refusing to take any responsibility for what he has done to this family. [¶] The value of the threat is that it corroborates [mother] for whom the Defense wants to discredit. . . . [¶] Or you can just check it off as, okay, and you can see [mother] is corroborated by that jail threat, by the call because we have him arranging for it. And you can say, so what about [mother], that doesn't mean what [the victim] is telling us here is not the truth and it doesn't mean she came in here and lied to you. It explains her fear, why she is still fearful of him. And it shows what he is capable of."
Later, in rebuttal, the prosecution argued: "That threat that was made to her on the phone is verified in black and white. And it's not just a little simple side issue, ladies and gentlemen. That shows you what he's capable of. That shows desperation. He knows what is going to get to [mother] and that's her family in Mexico. Get him out. She didn't, did she? And she cried in here and that wasn't an act, that was fear and you saw it."
At this point, defense counsel objected, and the trial court sustained the objection.
The prosecutor then continued: "That was just a little bit of what's going on with [mother], and I want you to keep that in mind when you evaluate the evidence in this case."
In this regard, the jury was instructed with CALCRIM No. 371 as follows: "If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
Defendant contends the prosecution's argument was "clear misconduct" because the assertion that defendant's orchestration of a threat to mother from Mexico showed what he is "capable of" constituted improper character or propensity evidence.
The claim of prosecutorial misconduct is forfeited because there was no such objection in the trial court and no request for the court to admonish the jury that argument as to defendant's character for threat making was improper. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007.)
Defendant urges us to conclude that his counsel's failure to object to the prosecutor's comments constituted ineffective assistance of counsel. To prevail on this claim, defendant must establish that his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [80 L.Ed.2d 674].)
Defendant does not argue, much less demonstrate, that there is a reasonable probability the outcome of his trial would have been different if his trial attorney had objected and the jury had been admonished not to consider the argument now challenged by defendant. (People v. Mesa, supra, 144 Cal.App.4th at pp. 1008-1009 ["reasonable probability" standard applies to the evaluation of a Sixth Amendment claim of ineffective assistance of counsel, even when defense counsel's alleged error involves the failure to preserve the defendant's federal constitutional rights].)
Thus, even if the argument constituted misconduct (a point we need not address), defendant has failed to establish reversible error based on ineffective assistance of defense counsel in not objecting to the argument. (In re Fields (1990) 51 Cal.3d 1063, 1079; People v. Mesa, supra, 144 Cal.App.4th at pp. 1008-1009.)
In conclusion, there is no error, alone or cumulatively, that would require reversal of the judgment. (Cal. Const., art. VI, § 13.)
Pursuant to this court's miscellaneous order number 2010-002, filed March 16, 2010, we deem defendant to have raised the claim that amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits.
However, the amendments to section 4019 do not operate to modify defendant's entitlement to credit because he was convicted of serious felonies. (§ 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50; § 1192.7, subd. (c)(5),(6).)
The judgment is affirmed.
* Retired Presiding Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.