P. v. Aguilar

Filed 5/14/07 P. v. Aguilar CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert J. Schuit, Judge. Affirmed.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Martin Humberto Aguilar appeals from the judgment entered following his conviction by jury for committing grand theft. He contends the prosecutor committed prejudicial misconduct during closing argument. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Aguilar was charged by information with one count of grand theft in violation of Penal Code section 487, subdivision (a). The information also specially alleged Aguilar had served one prior prison term within the meaning of section 667.5, subdivision (b).

Summary of the Trial Evidence

Home Depot security guards Joshua Soto and Raul Estrada watched as Aguilar and a confederate entered the store together and began to fill their respective shopping carts with identical merchandise. Aguilar continued to walk around the store while his confederate went to a register, paid cash for the merchandise, and left the store with the receipt.^[1]Aguilar followed his confederate outside, retrieved the receipt, and reentered the store. After showing the receipt to a door security guard, Aguilar was able to leave the store with the unpurchased merchandise. Soto and Estrada immediately detained him until police arrived. Aguilar admitted he had accomplished this scam three times before. This time the value of the merchandise was $847.40.

Testifying in his own defense, Aguilar insisted that, as a self-employed contractor, he was at Home Depot to purchase items for a construction job when he struck up a conversation with another customer who was shopping for similar items. At one point the customer asked Aguilar for his telephone number, but Aguilar had left his business cards in his truck. As the customer was leaving the store, Aguilar went to his truck, to obtain a business card and gave it to the customer. Aguilar reentered the store, paid for the merchandise he had selected, and left the store. He was stopped outside by Soto and Estrada, who were verbally and physically abusive, especially Soto. Aguilar knew Soto from two prior contacts at another Home Depot involving Aguilars separate attempts to return some previously purchased merchandise. Aguilar denied the theft charge. On cross-examination he admitted to having a 2001 felony conviction for unlawfully taking a vehicle.

The jury found Aguilar guilty as charged. In a bifurcated proceeding he admitted having served a separate prison term for a felony. Aguilar was sentenced to an aggregate state prison term of three years.

DISCUSSION

Because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state, a prosecutor is held to a standard higher than that imposed on other attorneys. (People v. Hill (1998) 17 Cal.4th 800, 820.) Two separate standards govern prosecutorial misconduct, federal and state. Under federal law, Improper remarks by a prosecutor can so infect[] the trial with unfairness as to make the resulting conviction a denial of due process. [Citation.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citation.]. (People v. Huggins (1996) 38 Cal.4th 175, 206.)^[2]

Aguilar contends his due process rights under the federal and state constitutions were violated by improper remarks the prosecutor made during summation. Aguilar maintains the prosecutor engaged in misconduct by vouching for security guard Estradas credibility, when he told the jury that as a 15th juror he thought Estradas testimony was very straightforward.^[3]According to Aguilar, the prosecutors remarks impermissibly bolstered the Estradas credibility by placing the prestige of his office behind this witness, thus dissuading the jury from making an independent assessment of Estradas truthfulness and relying instead on the prosecutors view of his testimony.

Although defense counsel interposed an objection, he failed to request that the jury be admonished in light of the prosecutors remarks. Prosecutorial misconduct is subject to a strict rule of forfeiture. An incident of alleged misconduct may not be raised on appeal unless a timely objection was made to the trial court, the basis for the objection was identified, and a request was made to admonish the jury to disregard the conduct. (People v. Brown (2003) 31 Cal.4th 518, 553.) Contrary to Aguilars contention, the prosecutors remarks were not so inherently prejudicial that an admonition to the jury could not have cured any harm. (See People v. Dennis (1998) 17 Cal.4th 468, 521.) Aguilar, therefore, did not preserve his challenge to the judgment on grounds of prosecutorial misconduct. (People v.Huggins, supra, 38 Cal.4th at p. 205.)

In addition, Aguilars complaint does not constitute a cognizable claim of impermissible vouching. The general rule is that [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. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witnesss truthfulness at trial. [Citation.] However, so long as a prosecutors 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, [the prosecutors] comments cannot be characterized as improper vouching. (People v. Stewart (2004) 33 Cal.4th 425, 499, original italics, citing People v. Frye (1998) 18 Cal.4th 894, 971.)

This case turned on witness credibility. Although the prosecutors self-characterization as a 15th juror during summation was ill-advised, the thrust of his remarks was that a reasonable juror would believe Estradas straightforward testimony. This was fair comment on Estradas credibility and the anticipated argument by the defense to discredit both security guards, particularly Soto. (See, e.g., People v. Chilcott (1937) 18 Cal.App.2d 583, 587 [Prosecutors remark, My judgment tells me that the evidence in this case warrants a verdict of guilty, was proper comment on the record].) This is not a situation where the prosecutor hinted that he had superior knowledge unavailable to the jury that corroborated Estradas testimony (see, e.g., People v. Bolton (1979) 23 Cal.3d 208, 212-213); or invoked his great experience or prestige or his offices prestige to support the testimony (see, e.g., People v. Turner (2004) 34 Cal.4th 406, 431; People v. Medina (1995) 11 Cal.4th 694, 758; People v. Kirkes (1952) 39 Cal.2d 719, 722-724); or offered a personal opinion gleaned solely from facts outside the record (see, e.g., Donnelly v. De Christoforo (1974) 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431]). Prosecutorial assurances, based on therecord, regarding the apparent honest or reliability of prosecution witnesses, cannot be characterized as improper vouching, which usually involves an attempt to bolster a witness by reference to facts outside the record. (People v. Medina, supra, 11 Cal.4th at p. 757, original italics; see also People v. Huggins, supra, 38 Cal.4th at p. 207 [Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each partys interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument . . . .].) Indeed, defense counsel himself argued, We know definitely that Mr. Soto has a bias . . . Now, Mr. Estrada did sound more believable, but remember, he is relying in great part off [sic] what Mr. Soto told him. According to the defense theory, Soto, a supervisor, falsely accused Aguilar of theft because of a long standing prejudice against him, and Estrada, a trainee, simply accepted at face-value what his supervisor said about Aguilar and his purported commission of the crime.

In any event, even if arguably improper, the prosecutors remarks were certainly harmless, under any standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Watson (1956) 46 Cal.2d 818, 836.) The prosecutors single reference to himself as a 15th juror in arguing Estradas credibility did not infect the entire trial. (See, e.g., People v. Green (1980) 27 Cal.3d 1, 35-36.) And, as explained, defense counsel himself acknowledged Estradas credibility, but argued his testimony was false to the extent it was derived from what Soto, his supervisor, had told him. Moreover, the trial court instructed the jury both at the beginning of the case and before closing argument, Statements made by the attorneys during the trial are not evidence. The court also instructed the jury on the factors to consider in evaluating the believability of witnesses. It is presumed the jury followed these instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436 [alleged prosecutorial misconduct not prejudicial when trial court properly instructed on the law because jury presumed to have followed instructions]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 [jury presumed to have treated prosecutors comments as words spoken by an advocate in an attempt to persuade].)^[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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^[1] Joshua Soto testified that Aguilar and his confederate met up with a third confederate and the three of them transferred the merchandise from the shopping carts onto two lumber carts. Aguilar separated himself from his confederates who took one lumber cart to the register, paid for the merchandise in cash, and left the store. Aguilar left the store long enough to get their receipt before reentering the store and using the receipt to leave with the second lumber cart of unpurchased merchandise.

^[2] The issue of prosecutorial misconduct is currently pending before the Supreme Court in People v. Lopez, review granted July 19, 2006, S143615, which involves a prosecutors reference to the horrendous crimes committed by Catholic priests during closing argument in the trial of a priest accused of committing a lewd act on a child.

^[3] Specifically, the prosecutor commented during closing argument, I want to talk to you about something. I try and view a case - - yes, technically Im a D.A., but I try to view myself as a 15th juror, what I would think of these witnesses, how would I evaluate their testimony. Tell you what I thought, because I think you probably think the same thing I did. Raul Estrada, very straightforward -- Defense counsel interrupted the prosecutor by objecting to his remarks as improper vouching. The court advised the prosecutor, Perhaps you can just give the jury a synopsis of how you feel the witnesses performed without indicating what your particular preference is. The prosecutor responded, Will do.

^[4] Because the prosecutors remarks did not amount to an instance of prejudicial prosecutorial misconduct, we necessarily reject Aguilars alternative contention his trial counsel was ineffective for failing to request an admonition to the jury regarding the alleged misconduct. (Strickland v. Washington (1984) 466 U.S. 668, 686-687 [104 S.Ct. 2052, 80 L.Ed.2d 674] [ineffective-assistance claim requires not only a showing counsels performance was deficient but also a showing there is a reasonable probability that, but for counsels deficient performance, the result of the trial would have been different]; People v. Huggins, supra, 38 Cal.4th at pp. 205-206; People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)