P. v. Aguilar

 

 

 

 

 

 

 

 

 

 

Filed 10/17/13  P. v. Aguilar 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   VALENTIN AGUILAR,         Defendant and Appellant.

G048137            (Super. Ct. No. 09CF2380)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of Orange County,
Gary S. Paer, Judge.  Affirmed.

                        Steven A. Torres, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein
Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

*                      *                      *

                        Valentin Aguilar was
convicted of seven counts of lewd acts on his daughter, who was 11 or 12 years
old at the time.  He was also convicted
of one count of an attempted lewd act on her. 
He was acquitted of having used a knife during the commission of the
lewd acts.  His overall sentence was 18
years.

                        Aguilar
raises but a single issue in this appeal: 
He claims the prosecutor, in closing argument, improperly reversed the
presumption of innocence.  The basis for
this contention is this passage from the argument:  “The presumption of innocence.  This is where I want to start.  This is where we started with jury
selection.  What does it mean?  Well, you can’t consider the fact that he has
been charged as evidence of guilt.  The
judge told you that repeatedly when we were selecting a jury.  He has a right to a fair trial.  We talked about that.  Absolutely a fair trial is his right.  [¶] 
What this does, this presumption, is it puts the burden on this side of
the table.  It states that the People
must prove their case beyond a reasonable doubt.  I would submit to you that that presumption
is now gone because the trial is over and we have proven each and every element
of these crimes so that you can return a verdict of guilty.”

                        Aguilar’s argument is
not persuasive.  Occasionally,
prosecutors do get a little carried away with the perceived strength of their
case and want to declare victory by telling the jury they have >already carried their burden of proof in
the trial, thus rebutting the presumption that controlled the case at the> beginning of the trial.  Such boasts to the jury may be inelegant, but
they do not constitute prosecutorial misconduct, as established first in >People v. Goldberg (1984) 161 Cal.App.3d
170, and most recently reiterated by our Supreme Court in People v. Booker (2011) 51 Cal.4th 141.

                        In Goldberg, the prosecutor’s declaration of victory consisted of this
statement:  “‘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.  Thank you.’”  (Goldberg,
supra, 161 Cal.App.3d at p. 189.) 
The Goldberg court held that
the comment was not misconduct.  The prosecutor was merely restating “albeit
in a rhetorical manner,” the otherwise noncontroversial point that a defendant
is presumed innocent “‘until the contrary is proved.’”  (Ibid.) 

                        Comparing the two, we
find the prosecutor’s comment in the case before us to be, if anything, less
likely to mislead the jury than the comment that passed muster in >Goldberg.  Here, the prosecutor’s statement the
“presumption is now gone because the trial is over” emphasized the prosecutor’s
rhetorical point that he had already proved the contrary of the innocence
presumption by the end of the trial.

                        A
more recent Goldberg variation is to
be found in Booker.  There, the prosecutor told the jury:  “I had the burden of proof when this trial
started to prove the defendant guilty beyond a reasonable doubt, and that is
still my burden.  It’s all on the
prosecution.  I’m the prosecutor.  That’s my job.  [¶] 
The defendant was presumed innocent until the contrary was shown.  That presumption should have left many days ago. 
He doesn’t stay presumed innocent.” 
(Booker, supra, 51 Cal.4th at
p. 183, italics added.)  The Supreme
Court rejected a contention of prosecutorial misconduct, stating:  “Although we do not condone statements that
appear to shift the burden of proof onto a defendant (as a defendant is
entitled to the presumption of innocence until the contrary is found by the
jury), the prosecutor here simply argued the jury should return a verdict in
his favor based on the state of the evidence presented.”  (Id.
at p. 185.)

                        The
same again can be said here, and again the comment here is, if anything, more
innocuous than the one that withstood challenge in Booker.  The comment in >Booker focused on a time-frame in the
middle of the trial, while evidence was still being presented, whereas here the
prosecutor was rooting the jury in the “now” – when all the evidence had
closed.

                        Aguilar
attempts to distinguish Goldberg (he
doesn’t mention Booker) on the theory
that in Goldberg the prosecutor was
simply saying the presumption of innocence continues until the jury decides
otherwise, but here the prosecutor’s comment “cannot be read that way.”  Au contraire. 
We believe the prosecutor’s comments here were more focused on the “now” of jury deliberation than the comments in
Goldberg and Booker.

                        We
will add in passing that even any arguable error was wholly harmless even under
the harmless-beyond-a-reasonable-doubt standard articulated in >Chapman v. California (1967) 386 U.S.
18, 24.  Appellate defense counsel is to
be commended for presenting an honest and complete summary of the evidence
against Aguilar, but it must be admitted it is not a pretty picture.  There was evidence from the victim that
Aguilar touched her breasts more than 10 times, touched her vagina one time,
masturbated in front of his daughter on two occasions, and once put on a
pornographic movie in her room and told her to look at it.  Moreover, the fact the jury >rejected the allegations that Aguilar
used a knife in these molestations does not cast doubt on the molestations
themselves, but does confirm the jury was in no way misled by the prosecutor’s
“presumption is now gone because the trial is over” remark.

                        Accordingly we affirm
the judgment.  But, like the Supreme
Court in Booker, we would add that
prosecutors would do well to avoid the sort of premature declarations of
victory that generated the appeals in Goldberg,
Booker, and now here.

 

 

 

 

 

                                                                                   

                                                                                    BEDSWORTH,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
ACTING P. J.

 

 

 

ARONSON, J.