APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. (Super.Ct.No. FVA801798)
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PUBLICATION
A jury found defendant and appellant Jonis Centeno guilty of two
counts of willfully committing a lewd or lascivious act upon a child
under the age of 14 years old (Pen. Code, § 288, subd. (a)),*fn1
and one count of molesting a child under 18 years of age
(§ 647.6, subd. (a)(1)). The trial court sentenced defendant to
prison for a term of five years. Defendant raises six issues on
appeal. First, defendant contends the prosecutor committed misconduct
by misstating the State's burden of proof. Second, defendant asserts
his trial counsel was ineffective for failing to object to the
prosecutor's misconduct. Third, defendant contends the trial court
acted in excess of its jurisdiction by sentencing him to prison
because defendant was a juvenile at the time the crimes were
committed. Fourth, defendant asserts the trial court erred by not
considering probation as a sentencing option. Fifth, defendant
contends his due process rights were violated to the extent the trial
court relied on an outdated probation report when denying defendant
probation. Sixth, defendant contends the trial court erred by relying
on inaccurate information in the probation report when sentencing
defendant. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim is female and was born in April 2000. The victim lived with her father (Father) and brother. Defendant's aunt owned a home with a garage that was converted into two living areas, separated by a thin wall. Defendant lived in one of the garage living spaces in his aunt's home. The victim, her brother, and Father lived in the second garage living space. Approximately seven men lived in the house, in the various rooms. Defendant's living space did not have a door, so anyone walking by it could see inside.
One day (Father could not recall the exact date), Father walked by defendant's room and saw defendant lying on top of the victim. Father walked into defendant's room and defendant "quickly jumped off" the victim. The victim, who had been on the bed, ran out of the room. Father then left defendant's room. Later, Father and defendant's aunt confronted defendant, asking if anything inappropriate had taken place between defendant and the victim. The result of the confrontation was an agreement that defendant would not have contact with the victim and her brother for the sake of avoiding future problems.
On March 24, 2008, the San Bernardino County Sheriff's Department was asked to follow-up on a child protective services referral involving defendant being found lying on top of the victim. The initial report was made to child protective services on March 10, 2008. Deputy Ruiz interviewed defendant. Defendant denied touching the victim in an inappropriate manner. Defendant explained the victim went into defendant's room looking for her brother. Defendant and the victim began playing with a ball in defendant's room. The victim threw the ball at defendant while also running towards defendant to hug him. Defendant was sitting on the edge of his bed at the time, and the victim's hug threw him off-balance. Defendant accidentally rolled over on the victim, and was getting up from rolling over when Father walked in the room.
On June 25, 2008, San Bernardino Sheriff's Detective Brown observed a forensic interview of the victim through a two-way mirror at the Children's Assessment Center. During the interview, the victim said defendant laid on top of her on four separate occasions. During three of the incidents, defendant and the victim were clothed and defendant laid on top of the victim, not moving. During the fourth incident, while the victim was clothed, defendant exposed his penis and placed it on the victim's clothed genitals. The victim was seven years old when the incidents took place; the victim was seven years old during the interview in June 2008.
At trial, the victim testified that when she was seven years old, defendant laid on her two separate times. The victim laid on her stomach, while defendant laid on his stomach. During one of the incidents, the victim felt defendant's penis touching her clothed genitals.
During trial, Father testified that when he walked by defendant's room, he did not see defendant lying on top of the victim. Rather, he saw the victim, her brother, and defendant all trying to grab a ball or piece of candy that was on the ground. Since 2006, Father has attended the church where defendant's father (Denis)*fn2 worked as a pastor. People at the church sometimes gave Father financial assistance, as well as assistance with clothing, shoes, food, and transportation. For example, Denis drove Father to court to testify in the instant case.
Defendant testified at trial. Defendant explained the victim's brother came into defendant's room with a ball. Defendant and the victim's brother played with the ball, bouncing it against a wall. Then the victim entered defendant's room. The victim wanted the ball, so she, her brother, and defendant started trying to grab the ball on the floor. Father walked by while the three were "bunched up" on the floor trying to grab the ball. Father called the two children and they exited defendant's room.
During rebuttal closing argument, the prosecutor made the following statements: "Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the Elmo. Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is call Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable's handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.
"What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don't want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt."
Defendant contends the prosecutor committed misconduct by misstating the prosecution's burden of proof. The People assert defendant forfeited this issue for appeal by failing to raise an objection in the trial court. We agree defendant forfeited this issue for appeal. In examining the merits, we conclude the prosecutor did not commit misconduct.
"[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.) The record reflects defendant did not object to the reasonable doubt statements made by the prosecutor. There is nothing indicating that an objection would have been fruitless or that an admonition would not have cured the problem. The record reflects when the prosecutor characterized defendant's argument in a particular way, defense counsel raised an objection. The trial court heard the objection and explained its reasons for overruling the objection. Thus, it appears the trial court was responsive to objections raised by defense counsel during closing argument. In sum, defendant should not be raising this claim of prosecutorial misconduct for the first time on appeal. The time to raise it was during closing argument, and the place to raise it was the trial court. As a result, we conclude defendant has forfeited this issue for appeal. Nevertheless, we will address the merits of defendant's contention because it is easily resolved.
Defendant contends the prosecutor misstated the burden of proof by arguing: "You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle." Defendant interprets the foregoing argument as asserting the jury "could convict [defendant] if, from the evidence, it merely found that it was reasonably possible within the world of possibilities that he was guilty." Defendant contends this is not compatible with the reasonable doubt standard of proof.
"It is misconduct for a prosecutor to misstate the law during argument. [Citation.] This is particularly so when misstatements attempt 'to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]' [Citation.]" (People v. Otero (2012) 210 Cal.App.4th 865, 870-871 (Otero).) "'When, as here, the point focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained of remarks in an objectionable fashion.' [Citation.]" (People v. Thomas (2012) 53 Cal.4th 771, 797.)
Section 1096 defines reasonable doubt as follows: "'It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.'" No further information about the definition of reasonable doubt, other than that in section 1096, needs to be given to a jury. (§ 1096a.)
The prosecutor's description of the reasonable doubt standard was not eloquent, but it also does not constitute a misstatement of the law. The prosecutor explained to the jury, albeit in a roundabout manner, that reasonable doubt involves reflecting on the spectrum of possibilities that are supported by the evidence--from those that are impossible, to those that are unreasonable, and then to those that are reasonable and possible. The prosecutor argued that the jury's "decision has to be in the middle. It has to be based on reason. It has to be a reasonable account." Thus, the prosecutor argued the jury needed to reject the impossible, the unreasonable, and the mere possibilities in favor of a reasonable factual scenario that was supported by the evidence. The prosecutor did not lower the State's burden of proof by making this argument to the jury. Rather, the prosecutor took a somewhat circuitous path in telling the jury that reasonable doubt requires the jury to be reasonable. If anything, the prosecutor's statement was not a misstatement of the law, as much as a poorly worded redundancy of the reasonable doubt instruction. Therefore, we conclude the prosecutor did not commit misconduct.
As far as arguing to the jury that some evidence might be inaccurate or incomplete, that is yet another redundancy, which was explained to the jury by the trial court instructions. For example, the trial court informed the jury, "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (CALCRIM No. 226.) The trial court also informed the jury of its obligations related to conflicts in the evidence. (CALCRIM No. 302.) The overall point in the prosecutor's remark being--the evidence may not be perfect, but that does not mean the case is over. The trial court gave the jury the same information in a more complete and specific manner--you may find problems in the evidence, but you have an obligation to work through those problems. In sum, we are not persuaded the prosecutor committed misconduct.
Further, in regard to prejudice, to the extent the prosecutor's argument led to confusion on the part of the jury concerning the reasonable doubt standard, we note the trial court instructed the jurors that if they "believe[d] that the attorneys' comments on the law conflict with [the court's] instructions, [they] must follow [the court's] instructions." (CALCRIM No. 200.) The trial court also instructed the jury on the reasonable doubt standard of proof. (CALCRIM No. 103.) We presume the jury obeyed the admonition in CALCRIM No. 200, and disregarded any part of the prosecutor's argument that could have conflicted with the court's instructions on reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 836-837.) Defendant does not assert any errors concerning CALCRIM No. 200. Accordingly, defendant has not shown he was prejudiced by the prosecutor's statements.
Defendant relies on Otero, supra, 210 Cal.App.4th 865 to support his argument the prosecutor committed misconduct. Defendant did not cite Otero in his original briefs, because it had not yet been published, but includes it in a supplemental letter brief. In Otero, the prosecutor gave an example ...