Filed 1/9/20 P. v. Gonzalez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MUCIO ESQUIVEL GONZALEZ,

Defendant and Appellant.

G056775

(Super. Ct. No. 17CF1543)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Mary Katherine Strickland, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

INTRODUCTION

A jury convicted Mucio Esquivel Gonzalez, as charged, of six counts of committing a lewd act upon a child under the age of 14 in violation of Penal Code section 288, subdivision (a). The jury found true an allegation that Gonzalez committed the offenses against more than one victim. (Pen. Code, §§ 667.61, subds. (b), (e)(4), 1203.066, subd. (a)(7).) He was sentenced to a total term of 45 years to life in prison.

On appeal, Gonzalez asserts a single ground for reversal. He contends the prosecutor committed error during closing argument by misstating the burden of proof and the presumption of innocence. We conclude the prosecutor did not misstate the law and therefore affirm.

FACTS

We present a short summary of the facts due to the single issue raised on appeal.

Over the course of several years, Gonzalez sexually molested his fiancée’s three minor nieces—J.R., K.R., and A.P. Gonzalez began molesting J.R. when she was about 11 years old. He began molesting K.R. when she was seven years old, and began molesting A.P. when she was about five years old.

During the period of time when the offenses were committed, Gonzalez lived in a two bedroom apartment with his fiancée, the victims’ aunt. Also living in the apartment were J.R., K.R., their sister and two brothers, and their parents. At some point, A.P. (a cousin) began staying in the apartment on weeknights. Although the sleeping arrangements changed over the years, for the most part J.R., K.R., and a third sister slept in one bedroom with Gonzalez and his fiancée, while K.R. and J.R.’s parents and brothers slept in the other bedroom.

On at least one occasion, Gonzalez molested J.R. while she was lying in bed. On many other occasions Gonzalez molested J.R. while she was in the kitchen. Gonzalez molested K.R. once while he was using the bathroom and again while she was watching television in the living room. Gonzalez molested K.R. up to three times a day until he was arrested. Gonzalez first molested A.P. when she was in kindergarten. He lay down next to her in bed, placed his hand underneath her underwear, and touched her vagina. In the following years, he continued to molest A.P.

Years later, J.R.’s family learned about the molestation from J.R.’s former boyfriend. When confronted by the family, J.R. and A.P. admitted they had been sexually abused. The family reported the crimes to the police.

K.R. initiated a recorded telephone call to Gonzalez from the police station. During the call, K.R. asked Gonzalez why he had touched her on the vagina, and he replied, “Sweetie, but those things already happened, they happened a long time ago.” K.R. asked, “But why did you do that to me uncle?” Gonzalez said, “Look, a lot of things happen and you need to learn to forget” and “forgive me sweetie, forgive me.”

After Gonzalez was arrested, he agreed to a custodial interview. When a police officer asked Gonzalez how many children he had and their names, he began to cry. The officer asked why he was crying, and Gonzalez answered it was “[f]or the errors that he committed.” The officer asked him what he meant by that, and Gonzalez said, “[f]or the reason why I am here.” When asked if he knew why he was being interviewed, Gonzalez said, “I’m here and I don’t deny anything” and “I am not saying it didn’t happen, um, it’s only fair that if you misbehave you pay for your wrong and that hurts me, pay for the time necessary.”

DISCUSSION

I.

The Challenged Portions of the Prosecutor’s
Closing and Rebuttal Argument

Gonzalez challenges four portions of the prosecutor’s closing and rebuttal argument.

First, in the opening part of closing argument, the prosecutor addressed the credibility of the three victims: “When you get to [CALCRIM No.] 226, it is a big, long list of factors that you can consider in the credibility and the believability of the witnesses. . . . [¶] Now, you are going to have all of these factors, but they are not weighted. There isn’t one factor that’s more important than any other factor, but in light of the burden of proof here, the fact that I have to prove this case to you beyond a reasonable doubt, I submit to you that the most important factor when you are evaluating the credibility and believability of witnesses is how reasonable is the testimony. Because every evaluation we make in this case comes down to what is reasonable.” (Italics added.)

Second, again in the opening part of closing argument, the prosecutor stated: “So when you go back in the jury room and you start talking to each other, you do what you want. This is your deliberation. Here’s what I would like to encourage you folks to do: Number 1, ask yourselves what is reasonable? What makes sense based on what I heard during the course of the trial. Who do I believe; what do I believe; evaluate the credibility or believability of each and every witness. Did they give me any reason to believe they made this up essentially?” (Italics added.)

In closing argument, defense counsel argued it was not reasonable to believe Gonzalez would have engaged in repeated acts of sexual molestation in a two bedroom apartment filled with other people. Defense counsel argued the victims were not credible witnesses because they never tried to protect themselves or move to another room.

Third, in rebuttal, the prosecutor argued: “[J]ust because the defendant’s conduct was brazen does not mean it didn’t happen. Let’s not forget that diagram that artistic little K[.R.] drew for you. This bedroom was separated by a hallway and two closed doors giving ample time to know what’s coming. And yes, there were possibly other people in the room while K[.R.] is covered with a blanket. This is touching. This isn’t intercourse. And this is someone who is touching over an extended period of time and knew what the reaction was going to be, whether they were going to scream out or yell or just lay there and take it. So brazen, yes, absolutely. Unreasonable, I submit to you, no. Just because it doesn’t make sense to individuals that have not experienced this or have not been perpetrating these types of crimes doesn’t mean it doesn’t make sense in the defendant’s mind. Again, brazen doesn’t equal didn’t happen.” (Italics added.)

Fourth, again in rebuttal, the prosecutor argued: “The last thing I want to point out to you is the scales of justice sitting right there in front of the judge and the defense counsel. I know I told you during jury selection I say crazy things sometimes. Here’s one thing defense counsel is right on. He has a presumption of innocence. You should look at that scale from the beginning of this case assuming one side is all the way at the bottom because he is presumed innocent, but every single time you get a piece of evidence added to that scale, A[.P.]’s testimony, K[.R.]’s testimony, J[.R.]’s testimony, covert call, these are weights. And eventually when you get to the end of the case and you look at all of the evidence, you get to say to yourself, K thunk guilty. I have proved this case beyond a reasonable doubt. That scale went from one side, K thunk, to the other. [¶] So as silly as this sounds, go back there in the jury room and think to yourselves, K thunk, K thunk, every time you go through the evidence . . . look at everything; K thunk. He has committed these offenses. It has been proved to you beyond a reasonable doubt.” (Italics added.)

II.

There Was No Prosecutorial Error.

Gonzalez argues that by making the statements quoted above—in particular the italicized passages—the prosecutor suggested the jurors did not have to presume he was innocent and instead could make a decision based on what was reasonable. The Attorney General argues Gonzalez forfeited any claim of prosecutorial error because his trial counsel did not object to any of the challenged argument or request an admonition. Gonzalez argues his trial counsel was ineffective for not objecting or requesting admonitions. We do not reach the issue of forfeiture or ineffective assistance of counsel because we conclude there was no prosecutorial error.

“Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, ‘it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].’ [Citations.] To establish such error, bad faith on the prosecutor’s part is not required.” (Centeno, supra, 60 Cal.4th at p. 666.)

To determine whether the prosecutor committed error, we must view the challenged statements in the context of the entire argument and the jury instructions to determine whether there was a reasonable likelihood the jury understood or applied the comments in an improper manner. (People v. Cortez (2016) 63 Cal.4th 101, 130 131 (Cortez); Centeno, supra, 60 Cal.4th at p. 667.) “‘In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’” (Centeno, supra, 60 Cal.4th at p. 667.)

Context is critical. “If the challenged comments, viewed in context, ‘would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.’” (Cortez, supra, 63 Cal.4th at p. 130.)

A prosecutor’s conduct violates the United States Constitution when the conduct “‘infects the trial with such unfairness as to make the conviction a denial of due process’”; that is, when the conduct is “‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’” (People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutorial error that does not render a trial fundamentally unfair violates California law only if the conduct involved the use of deceptive or reprehensible methods to persuade a judge or jury. (Ibid.)

A defendant is presumed innocent until proven guilty. (People v. Booker (2011) 51 Cal.4th 141, 185 (Booker).) The presumption of innocence continues during jury deliberations until the jury reaches a verdict (People v. Arlington (1900) 131 Cal. 231, 235). It is error for the prosecutor to assert or suggest the presumption of innocence is “over” or “‘gone’” at an earlier point in the proceedings. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1154, 1159; People v. Dowdell (2014) 227 Cal.App.4th 1388, 1407 1408.)

It is also “error for the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” (Centeno, supra, 60 Cal.4th at p. 672.) But a prosecutor may urge the jury to reject impossible or unreasonable interpretations of the evidence. (Ibid.) The prosecutor may argue “reasonably possible interpretations” to be drawn from the evidence and urge the jury to accept the reasonable. (Id. at pp. 672 673.) In determining the credibility of a witness, a jury may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony” (Evid. Code, § 780), including “[h]ow reasonable is the testimony when you consider all the other evidence in the case” (CALCRIM No. 226).

The first two challenged passages from the prosecutor’s closing argument, when read in context, did no more than to encourage the jury to consider the reasonableness of the testimony in evaluating witness credibility. In the first instance, the prosecutor explained CALCRIM No. 226 concerns assessment of witness credibility and added that reasonableness was the most important factor for the jury to use in its deliberations. Thus, when the prosecutor argued “every evaluation we make in this case comes down to what is reasonable,” it was clear the prosecutor was referring to evaluating witness credibility. In the second instance, the prosecutor encouraged the jurors to ask themselves “[w]hat is reasonable” and whom they believed. The context makes it clear the prosecutor was referring to witness credibility and was not suggesting a reasonable account satisfied the prosecution’s burden of proof.

In the third instance, the prosecutor was responding to defense counsel’s argument it was not reasonable to believe K.R.’s and A.P.’s testimony that Gonzalez molested them in a house filled with other people and that K.R. and A.P. never tried to protect themselves or move to another room. Defense counsel argued A.R’s testimony that A.R. was molested while other people were in the house “doesn’t make sense.” In response, the prosecutor argued, “just because the defendant’s conduct was brazen does not mean it didn’t happen” and “[j]ust because it doesn’t make sense to individuals that have not experienced this or have not been perpetrating these types of crimes doesn’t mean it doesn’t make sense in the defendant’s mind.” Thus, when the prosecutor argued, “So brazen, yes, absolutely” and “Unreasonable, I submit to you, No,” it was clear from context the prosecutor was arguing a reasonably possible interpretation to be drawn from the evidence, not a reduction in the burden of proof. (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor was not suggesting a reasonable account sufficed to satisfy the prosecution’s burden of proof.

As to the fourth instance of asserted prosecutorial error, Gonzalez argues the prosecutor suggested he was no longer to be presumed innocent once the jurors began deliberating. Here, the prosecutor’s argument, read in context, did not suggest the presumption of innocence was gone by the time the jury began deliberating. The trial court correctly instructed the jury on the presumption of innocence. The prosecutor confirmed Gonzalez was presumed innocent. The prosecutor encouraged the jurors to view the case as scales, not equally balanced, but with one side all the way at the bottom to reflect the presumption of innocence. The prosecutor urged the jurors to treat each piece of evidence as a weight to place on the raised end of the scale and “eventually when you get to the end of the case and you look at all of the evidence, you get to say to yourself, K thunk guilty.”

It is clear the prosecutor did not tell the jurors Gonzalez no longer was presumed innocent. Instead, the prosecutor argued the prosecution met its burden of proof and encouraged the jury to use the scales and weights as an analytical tool during deliberations to reach a verdict. Thus, the prosecutor argued, “So as silly as this sounds, go back there in the jury room and think to yourselves, K thunk, K thunk, every time you go through the evidence . . . look at everything; K thunk. He has committed these offenses. It has been proved to you beyond a reasonable doubt.” (Italics added.)

People v. Goldberg (1984) 161 Cal.App.3d 170, 189 (Goldberg) is instructive. There, the prosecutor argued in closing: “‘And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you’ve heard this case, once the case has been proven to you—and that’s the stage we’re at now—the case has been proved to you beyond any reasonable doubt. I mean, it’s overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence.’” The Court of Appeal, rejecting a claim of prosecutorial error, concluded those comments were rhetorical statements of the law as reflected in Penal Code section 1096 and the relevant jury instruction. (Ibid.)

In Booker, supra, 51 Cal.4th at pages 183 184, the prosecutor argued: “‘[T]he presumption of innocence is the point at which you start the case. At some point you come to the conclusion the person is guilty, the presumption is gone. On the other hand, if you find the person is not guilty, the presumption of innocence is always there.’” The prosecutor also argued “‘the defendant starts out with the presumption of innocence’” but “‘[t]hat doesn’t stay’” and “‘[o]nce the evidence convinces you he is no longer innocent, that presumption vanishes.’” (Id. at p. 184.) The defendant argued the prosecutor’s comments lessened the burden of proof and implied the defendant was not presumed innocent. (Id. at p. 185.) The California Supreme Court rejected that argument. Citing Goldberg, the court concluded the prosecutor “simply argued the jury should return a verdict in his favor based on the state of the evidence presented.” (Ibid.)

In People v. Panah (2005) 35 Cal.4th 395, 463 (Panah), the prosecutor argued the prosecution evidence “‘stripped away’” the presumption of innocence. The Supreme Court rejected the defendant’s claim of prosecutorial error because “the prosecutor’s references to the presumption of innocence were made in connection with his general point that, in his view, the evidence, to which he had just referred at length, proved the defendant’s guilt beyond a reasonable doubt, i.e., the evidence overcame the presumption.” (Ibid.)

Goldberg, Booker, and Panah stand for the proposition that a prosecutor may argue the prosecution evidence has overcome the presumption of innocence and proven guilt beyond a reasonable doubt. Arguing the prosecution evidence has “‘stripped away’” the presumption of innocence (Panah, supra, 35 Cal.4th at p. 463), has caused it to “vanish[]” (Booker, supra, 51 Cal.4th at p. 184), or means “‘[t]here is no more presumption of innocence’” (Goldberg, supra, 161 Cal.App.3d at p. 189, italics omitted) is permissible and does not equate to arguing the defendant is no longer presumed innocent when deliberations begin. The prosecutor’s statements in this case, like those in Goldberg, Booker, and Panah, did not suggest the presumption of innocence was gone when the jury began deliberating. The reference to scales and weights was a permissible analogy for the prosecution to argue it met its burden of proof. The prosecutor urged the jurors to review the evidence before reaching a verdict.

Additionally, the trial court correctly instructed the jury on the presumption of evidence and the prosecution’s burden of proof beyond a reasonable doubt. (People v. Meneses (2019) 41 Cal.App.5th 63, 74.) We presume the jury followed the court’s instructions in reaching a verdict. (Cortez, supra, 63 Cal.4th at p. 131.) “Those admonitions were sufficient to dispel any potential confusion raised by the prosecutor’s argument.” (People v. Barnett (1998) 17 Cal.4th 1044, 1157.)

The prosecutor’s comments, considered in the context of the whole argument and the jury instructions, did not lead the jurors to misapprehend the presumption of innocence or the prosecution’s burden of proof beyond a reasonable doubt. (Centeno, supra, 60 Cal.4th at p. 667.) There was no error.

DISPOSITION

The judgment is affirmed.

DUNNING, J.*

WE CONCUR:

THOMPSON, ACTING P. J.

GOETHALS, J.

*Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.