P. v. Govedarov

Filed 6/14/06 P. v. Govedarov CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire, Judge. Affirmed.

Momtchil K. Govedarov appeals a judgment following his jury conviction on two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)).^[1] On appeal, Govedarov contends the prosecutor committed prejudicial misconduct that requires reversal of his convictions.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2001, Ms. S.H. met Govedarov at a San Diego nightclub. She gave him her telephone number. Govedarov called her and they dated a number of times. On those dates, she met him at the site of the date. She told him she was not interested in a sexual relationship and just wanted to be friends.

On July 9, S.H. allowed Govedarov to meet her at her apartment. They went on a date and returned a couple of hours later. Because he mentioned he wanted to show her a funny website on her computer, she allowed him to enter her apartment. After showing her the website, they talked and then Govedarov began to aggressively kiss her and push her down on the couch. Despite her requests that he stop, he picked her up, carried her to her bed, and raped her at least twice.

After Govedarov left her apartment, S.H. called police. On their arrival, she told them she thought Govedarov's name was Montiel and did not know his last name. The officers took her to a hospital, where she was examined and swabs for DNA testing were taken from her genital and rectal areas. When sperm from those swabs was later tested, a DNA profile was obtained.

On July 18, San Diego Police Detective Carlton Hershman interviewed S.H. about the incident. Hershman unsuccessfully attempted to identify S.H.'s attacker by performing a computer search using the name Montiel and the color and model of car that S.H. described to him. S.H. thought the investigation was placed on hold.

In July 2003 Govedarov was identified as a possible suspect in S.H.'s attack. On October 6 Hershman arrested Govedarov, obtained swabs from his mouth, and submitted those swabs for DNA testing and comparison with the DNA profile from S.H.'s swabs. Subsequent testing of Govedarov's swabs showed his DNA profile matched that from S.H.'s swabs.

An information charged Govedarov with two counts of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)(2)), and one count of attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2)). At trial, S.H., Hershman, and other prosecution witnesses testified substantially as described ante. Govedarov testified in his defense and maintained that his sexual acts with S.H. were consensual.

The jury returned verdicts finding Govedarov guilty on the two counts of forcible rape and not guilty on the other two counts. After denying Govedarov's motion for new trial, the trial court sentenced him to the middle term of six years on the first count and a concurrent six-year term on the second count.

Govedarov timely filed a notice of appeal.

DISCUSSION

I

Prosecutorial Misconduct Generally

"The standards under which we evaluate prosecutorial misconduct may be summarized as follows: A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon 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. Morales (2001) 25 Cal.4th 34, 44.)

"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1201.)

II

Govedarov's Contentions Regarding Prosecutorial Misconduct

Govedarov contends the prosecutor committed prejudicial misconduct during her opening statement, during her redirect examination of Hershman, and during her closing arguments.

A

In 2003 a DNA sample apparently was obtained from L.W., the victim of an alleged rape, and its DNA profile was entered in a law enforcement computer database. Govedarov apparently was identified as L.W.'s alleged attacker through a business card he had given L.W.'s friend. Because the DNA profile obtained from L.W. matched the prior DNA profile obtained from S.H., police suspected Govedarov also was S.H.'s alleged attacker. After police arrested Govedarov in the L.W. case, they determined that the DNA profile of a sample obtained from him matched the DNA profile of that obtained from S.H. after the 2001 incident.^[2]

Before trial, Govedarov filed an in limine motion, seeking an order excluding from evidence any references by the prosecution or its witnesses to his uncharged and/or unconvicted prior bad acts, including "the [L.W.] allegations." The prosecutor did not oppose that motion, stating she did not intend to introduce any of that evidence. Accordingly, the trial court granted that in limine motion and directed "both sides" (i.e., the prosecutor and Govedarov) not to refer to those matters.

During the prosecutor's opening statement, she stated:

"Those [i.e., S.H.'s vaginal swabs obtained after the incident] become very important because it's what was on those swabs that lead us eventually to Mr. Govedarov. [Hershman] took over the investigation. . . . He interviewed [S.H.]. He had the evidence processed, but pretty soon after it became apparent [S.H.] did not have a full name for Mr. Govedarov. She did not know his home address or where he worked. The investigation stalled.

"There was no place else for it to go. . . . Those vaginal swabs were processed for DNA. [Hershman] sent those to the San Diego Police crime laboratory with a request to process them.

"Semen was found on the vaginal swabs and a DNA profile was developed. In 2003, two years later, a DNA hit identified [Govedarov] as the person who matched the semen on that vaginal swab. After three years we now have a name to put to the suspect." (Italics added.)

On direct examination of Hershman, the prosecutor asked him: "In July of 2003, two years now after the sexual assault [of S.H.], was a person by the name of Momtchil Govedarov identified as a possible suspect in the [S.H.] case?" Hershman answered: "Yes," and identified Govedarov (sitting in the courtroom) as that suspect. On cross-examination, Govedarov's counsel asked Hershman: "So you arrested Mr. Govedarov for raping [S.H.] before you took his DNA swabs?" Hershman answered: "Yes."

During the prosecutor's redirect examination of Hershman, the following occurred:

"Q[:] As an investigator, would it be fair to say that you have several tools available for you in terms of determining the identity of the person who committed the crime?

"A[:] That is correct.

"Q[:] One of those tools would be the . . . victims and witnesses?

"A[:] Correct.

"Q[:] One of those tools would be DNA?

"A[:] Correct.

"Q[:] This case, DNA is the tool that eventually, two years later, after you got a cold hit, identified -- [¶] [defense counsel objects and requests a sidebar and then trial court sustains that objection to the question as leading] [¶] . . . Did the DNA tool in this case work?

"A[:] Yes, it did.

"Q[:] Did the DNA tool in this case identify the person who committed this crime? [¶] [trial court effectively sustains defense objection and directs the prosecutor to rephrase the question] [¶] . . . Did the DNA tool give you the evidence that pointed to the person who committed this crime?

"A[:] Yes, it did.

"Q[:] [S.H.] had told you in the summer of 2001 that she wanted to go on with her life?

"A[:] Correct.

"Q[:] In the interim, you get the evidence, the DNA evidence [¶] . . . [¶] . . . that allows you to continue on with this case, is that correct?

"A[:] That is correct." (Italics added.)

After Hershman's testimony was concluded, the jury was excused for a lunch break. After the lunch break, during a sidebar hearing outside of the jury's presence, Govedarov's counsel moved for a mistrial, arguing the prosecutor's prior references to a pre-arrest DNA hit directly referred to the L.W. hit, were inflammatory and overly prejudicial, and implied that Govedarov had "done this before." The prosecutor agreed that she was ordered not to refer to L.W., but argued she had not asked questions about any cases other than S.H.'s case. She then argued defense counsel had opened the door to her redirect questioning: "Defense counsel himself treaded on this very thin ice earlier this morning when he was talking with [Hershman] about the reason for Mr. Govedarov's arrest." Accordingly, the prosecutor argued there were no grounds for a mistrial. Defense counsel then raised his concern that the prosecutor's closing argument might emphasize the pre-arrest DNA hit. The trial court stated that defense counsel "did open it up when you talked about the legitimacy of the arrest, and you kept asking the question and trying to give the jury the impression that he was arrested prematurely . . . before there could be some sort of confirmation of the DNA." The trial court stated that it was "not making any allegations" that the prosecutor or Hershman had breached its in limine rulings. Regarding the prosecutor's closing arguments, the prosecutor agreed to limit her argument on the DNA identification issue to argument that "the investigation led [toward] Mr. Govedarov and then the DNA was done." The court denied Govedarov's motion for a mistrial and noted that the prosecutor agreed not to mention anything about the DNA tests prior to the swabs of Govedarov's mouth. The court then restated its understanding of the prosecutor's agreement to limit her closing arguments: "[S]he said she's fine to not state that, you know, it's a DNA hit that leads us to Mr. Govedarov, but the investigation leads us to Mr. Govedarov. And then there's . . . DNA tests done and it's him."

During the prosecutor's closing arguments, she stated:

"Fortunately, Detective Hershman's patience paid off and the fact that he went ahead and submitted the rape kit for DNA testing paid off. And the fact that we were able to identify Momtchil Govedarov as the suspect paid off, and we identified the rapist in the case using DNA, which I submit to you was much more reliable than any information [S.H.'s friend] could have given us.^[3]"

In denying Govedarov's postverdict motions for a mistrial and a new trial, the trial court stated: "The jury was going to be entitled to hear that there was a [DNA] match. That was going to happen. It was going to be awkward and cumbersome because of the way that this whole thing came about. [¶] . . . I really don't think it was done in such a way that it was too unduly suggestive to the jurors."

B

Govedarov contends the prosecutor committed prejudicial misconduct during her opening statement by referring (as quoted ante) to the "DNA hit" that helped identify Govedarov as S.H.'s attacker. He argues that reference to the "DNA hit" implied to the jurors that police must have first obtained his DNA sample or profile through his involvement in another crime and then matched it with the DNA sample or profile obtained in S.H.'s case.

However, Govedarov did not timely object to that statement or request a curative admonition.^[4] To avoid forfeiture or waiver on appeal of a claim of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown, supra, 31 Cal.4th at p. 553.) Absent a timely objection and request for a curative admonition, an appellate contention of prosecutorial misconduct is reviewable only if "an admonition would not have cured the harm caused by the misconduct" (People v. Price, supra, 1 Cal.4th at p. 447) or if either a timely objection or a request for an admonition would have been futile (People v. Cole, supra, 33 Cal.4th at p. 1201).

Govedarov makes only a conclusory assertion that a curative admonition, had he requested one, would not have cured the purported prejudice from the prosecutor's opening statement reference to the "DNA hit." Govedarov argues: "Even an admonition by the court for the jury to disregard these remarks could not have un-rung the bell: The jury now knew that [he] had been involved in another crime, which the court specifically told the prosecutor not to mention." He also argues: "[T]here was no way to explain away the fact that the police had a DNA profile on [him] outside the present case." We are not persuaded by, and the record does not support, Govedarov's conclusory assertion that he was not required to request an admonition because no admonition could have cured the harm caused by the prosecutor's opening statement reference to a "DNA hit." (People v. Cole, supra, 33 Cal.4th at p. 1201; People v. Price, supra, 1 Cal.4th at p. 447.) On the contrary, we conclude any alleged harm arising out of that reference would have been curable by an appropriate admonition. The prosecutor's reference to a "DNA hit" was not so unduly inflammatory that a court admonition to disregard it would not have been followed by the jury. Furthermore, the record does not support an argument that any objection or request for admonition would have been futile. (People v. Cole, supra, 33 Cal.4th at p. 1201.)

In any event, we cannot conclude, as Govedarov suggests, the jury necessarily inferred from the prosecutor's reference to a "DNA hit" that he must have committed another crime or was the subject of another criminal case or investigation. There presumably are means by which DNA samples can be obtained other than through a defendant's commission of another crime (e.g., voluntary submission of a sample, other direct procurement of a sample without the defendant's knowledge, etc.). Because Govedarov did not timely object and request a curative admonition and does not show either of those actions would have been futile or would not have cured any prejudice, we conclude he has waived or forfeited any contention on appeal that the prosecutor committed misconduct during her opening statement.^[5]

C

Govedarov contends the prosecutor committed prejudicial misconduct during her redirect examination of Hershman.

On redirect examination the prosecutor asked Hershman whether DNA evidence was a tool that gave him the ability to continue investigating S.H.'s case, which had been a cold case since 2001, and identify the person who committed the attack on S.H. Hershman answered those questions in the affirmative. In particular, Govedarov complains that the prosecutor asked Hershman: "In the interim, you get the evidence, the DNA evidence [¶] . . . [¶] . . . that allows you to continue on with this case, is that correct?" Hershman replied in the affirmative. Although Govedarov argues that questioning by the prosecutor constituted misconduct, we agree with the trial court's conclusion that he had opened the door to that questioning by asking Hershman on cross-examination a question that implied police had prematurely arrested him. Specifically, on cross-examination of Hershman, Govedarov's counsel asked: "So you arrested Mr. Govedarov for raping [S.H.] before you took his DNA swabs?" Accordingly, on redirect examination, the prosecutor reasonably asked questions of Hershman that countered Govedarov's implication that police had prematurely arrested him before obtaining DNA evidence that implicated him in S.H.'s attack. That questioning did not constitute misconduct. Accordingly, the trial court properly found the prosecutor had not committed misconduct (e.g., did not violate its pretrial order) and properly denied Govedarov's motions for a mistrial and a new trial.

Regardless of Govedarov's "opening the door" on cross-examination of Hershman, we are not persuaded by Govedarov's assertion that the prosecutor's questioning of Hershman on redirect examination was misconduct because it violated the trial court's in limine ruling and sought improper character evidence. First, before trial, the trial court granted Govedarov's in limine motion for an order precluding the prosecutor (and prosecution witnesses) from referring to his uncharged and/or unconvicted prior bad acts, including "the [L.W.] allegations." We conclude the prosecutor's questions, and Hershman's answers, on redirect examination did not violate that pretrial order. Those questions and answers merely involved the issue of whether Hershman obtained DNA evidence that allowed him to continue investigating the case and identify the person who committed the 2001 attack on S.H.; they did not explicitly or implicitly refer to the alleged attack on L.W. or any other of Govedarov's uncharged or unconvicted prior (or subsequent) bad acts. Rather, those questions and answers referred only generally to DNA evidence that helped Hershman to continue to investigate and identify the attacker in the 2001 attack on S.H. The prosecutor's questions and Hershman's answers would not support a reasonable inference by the jury that Govedarov had committed other crimes or bad acts for which he was uncharged or unconvicted.

Second, we are not persuaded by Govedarov's contention that the prosecutor's questioning of Hershman on redirect examination was misconduct because it sought improper character evidence. Although Govedarov argues the prosecutor's questions and Hershman's answers necessarily led the jury to conclude the DNA match was from another criminal offense he had committed, the record does not support a reasonable inference by the jury to that effect.^[6] Rather, the record was devoid of any testimony or other evidence on the circumstances in which that other DNA evidence was obtained. There presumably are means by which DNA samples can be obtained other than through a defendant's commission of another crime, including voluntary submission of a sample, and other direct procurement of a sample without the defendant's knowledge. It therefore is plausible that other DNA evidence identifying Govedarov could have been obtained in a manner outside of evidence from a crime he had committed. Accordingly, the questions and answers on redirect examination of Hershman did not ask for or present any evidence showing, or supporting a reasonable inference, that Govedarov had committed any prior or subsequent crimes or other bad acts or had any propensity to commit criminal or other bad acts.^[7]

Accordingly, we conclude Govedarov has not shown that the prosecutor's questions and Hershman's answers on redirect examination either involved the use of deceptive or reprehensible methods to attempt to persuade the jury or infected the trial with such unfairness as to make his convictions a denial of due process. (People v. Morales, supra, 25 Cal.4th at p. 44.) Therefore, he has not carried his burden on appeal to show there was misconduct by the prosecutor during her redirect examination of Hershman.^[8]

D

Govedarov contends the prosecutor committed prejudicial misconduct during her closing arguments by stating police were able to identify Govedarov as the attacker in S.H.'s case by using DNA evidence. He argues that reference to DNA evidence implied to the jurors that police must have first obtained his DNA sample or profile through his involvement in another crime and then matched it with that obtained in S.H.'s case.

However, Govedarov did not timely object to that statement or request a curative admonition. To avoid forfeiture or waiver on appeal of a claim of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown, supra, 31 Cal.4th at p. 553.) Absent a timely objection and request for a curative admonition, an appellate contention of prosecutorial misconduct is reviewable only if "an admonition would not have cured the harm caused by the misconduct" (People v. Price, supra, 1 Cal.4th at p. 447) or if either a timely objection or a request for an admonition would have been futile (People v. Cole, supra, 33 Cal.4th at p. 1201).

Govedarov makes only a conclusory assertion that a curative admonition, had he requested one, would not have cured the purported prejudice from the prosecutor's closing argument that police were able to identify Govedarov as the attacker in S.H.'s case by using DNA evidence. Govedarov argues: "Even an admonition by the court for the jury to disregard these remarks could not have un-rung the bell: The jury now knew that [he] had been involved in another crime, which the court specifically told the prosecutor not to mention." He also argues: "[T]here was no way to explain away the fact that the police had a DNA profile on [him] outside the present case." We are not persuaded by, and the record does not support, Govedarov's conclusory assertion that he was not required to request an admonition because no admonition could have cured the harm caused by the prosecutor's closing argument. (People v. Cole, supra, 33 Cal.4th at p. 1201; People v. Price, supra, 1 Cal.4th at p. 447.) On the contrary, we conclude any alleged harm arising out of the prosecutor's closing argument would have been curable by an appropriate admonition. The prosecutor's argument that police were able to identify Govedarov as the attacker in S.H.'s case by using DNA evidence was not so unduly inflammatory that a court admonition to disregard it would not have been followed by the jury. Furthermore, the record does not support an argument that any objection or request for admonition would have been futile. (People v. Cole, supra, 33 Cal.4th at p. 1201.)

In any event, we cannot conclude that the jury necessarily inferred from the prosecutor's closing argument that Govedarov must have committed another crime or was the subject of another criminal case or investigation. There presumably are means by which DNA samples can be obtained other than through a defendant's commission of another crime. Because Govedarov did not timely object and request a curative admonition, and does not show either of those actions would have been futile or would not have cured any prejudice, we conclude he has waived or forfeited any contention on appeal that the prosecutor committed misconduct during her closing argument.^[9]

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Although Govedarov was initially charged with the rape of L.W., that charge was later dismissed because she was unavailable to testify.

^[3] That friend testified for the defense that she could not identify Govedarov as the man she had seen S.H. with at nightclubs.

^[4] Although Govedarov argues he made an objection to the prosecutor's opening statement by complaining about it the following day during the sidebar conference after Hershman's testimony, that belated objection certainly cannot be deemed timely for purposes of preserving a claim of misconduct on appeal.

^[5] Although Govedarov asserts, for the first time in his reply brief, that he was denied effective assistance of counsel should we conclude this prosecutorial misconduct contention was waived or forfeited because of his counsel's failure to timely object and request an admonition, we decline to address that assertion because it was not timely raised in his opening brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)

^[6] We decline to consider any evidence cited by Govedarov expressing or relating to the subjective reasoning or mental processes of individual jurors. (Evid. Code, § 1150, subd. (a); People v. Danks (2004) 32 Cal.4th 269, 301-302.)

^[7] Unlike the records in People v. Wagner (1975) 13 Cal.3d 612, People v. Bolton (1979) 23 Cal.3d 208, and other cases cited by Govedarov, the record in this case does not support a conclusion that the prosecutor's questions insinuated he had committed other crimes. Furthermore, we conclude the prosecutor in this case did not invite the jury to speculate about evidence or facts not contained in the record.

^[8] Because we conclude the prosecutor did not commit misconduct in questioning Hershman on redirect examination, we need not, and do not, address the question of whether that purported misconduct was prejudicial.

^[9] Although Govedarov asserts, for the first time in his reply brief, that he was denied effective assistance of counsel should we conclude this prosecutorial misconduct contention was waived or forfeited because of his counsel's failure to timely object and request an admonition, we decline to address that assertion because it was not timely raised in his opening brief. (REO Broadcasting Consultants v. Martin, supra, 69 Cal.App.4th at p. 500; Reichardt v. Hoffman, supra, 52 Cal.App.4th at p. 766.)