P. v. Liwanag

 

 

 

 

 

 

 

 

 

Filed 7/12/13  P. v. Liwanag 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.   LYLE AARON LIWANAG,         Defendant and Appellant.

G046823            (Super. Ct. No. 10NF1809)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of Orange County,
Daniel J. Didier, Judge.  (Retired judge
of the Orange Super. Ct. assigned
by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed as modified.

                        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, Kristine A. Gutierrez and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

 

                        A jury convicted Lyle Aaron
Liwanag of committing multiple lewd acts on two girls under age 14 and
statutory rape of another girl.  It found
true allegations he committed a sexual offense against more than one victim
within the meaning of the “One Strike” law. 
(Pen. Code, § 667.61, subds. (b),(e)(5).)  The trial court sentenced Liwanag to a total
term of 15 years to life.

                        Liwanag argues the
prosecutor committed misconduct during closing argument.  He also contends the trial court failed to
award 50 days conduct credits.  The Attorney
General concedes the credits issue, and we modify the judgment to reflect the
proper award of presentence custody credits. 
In all other respects, the judgment is affirmed.

 

FACTS

 

                        Liwanag does not
challenge the sufficiency of the evidence so the facts compromising the
offenses may be briefly stated.

> 

>Lewd Acts

                        In 2009, 10-year-old
A.M. lived with her grandparents, her mother, and her uncle in a home in Anaheim.  Liwanag and A.M.’s uncle were close friends,
and he was a frequent visitor to the home. 
In October, Liwanag came to visit A.M.’s uncle.  Sometime during the visit, he came into
A.M.’s bedroom, closed the door, and told her he was going to give her a
massage.  He started to massage A.M.’s
shoulders over her pajamas, but then put his hand under her pajama bottoms and
underwear.  He first touched and then
penetrated her vagina with his index finger. 
Confused by Liwanag’s conduct, A.M. did not tell anyone what had happened.

                        About a month later,
Liwanag approached A.M. while she was in her grandparent’s room.  A.M. was sitting in a chair in front of a
computer when Liwanag came into the room and told her he wanted to use the
chair.  A.M. surrendered the chair and
sat down on the floor, but Liwanag directed her to sit on the chair with
him.  When she did so, he again massaged
her shoulders, slipped his hand under her clothing, touched and penetrated her
vagina and touched her breasts.  When
A.M. asked what he was doing, Liwanag said, “Just chilling.”

                        In March or April 2010,
A.M.’s 13-year-old cousin, J.D. came for a visit.  During the visit, Liwanag, J.D., and A.M.
were together in A.M.’s uncle’s bedroom. 
While J.D. and Liwanag were lying on the bed, Liwanag put his palm on
J.D.’s groin, just above her vagina. 
J.D. pushed his hand away and walked out of the room.  Later that night, Liwanag joined J.D. and
A.M. in bed while they watched television. 
At one point, he touched J.D.’s vaginal area over her clothing.  When J.D. asked him to move his hand, Liwanag
moved his hand, got up from the bed, and left the room.

                        In May, Liwanag
interrupted A.M. while she was working on her homework.  He sat next to her at the kitchen table and
massaged her shoulders.  He again reached
inside her clothing and touched her vagina. 
This time A.M. told her uncle what had happened.  Her uncle went to Liwanag’s workplace,
confronted him, and asked if A.M.’s report was true.  Liwanag replied, “It’s complicated.”  After further questioning, Liwanag admitted
the conduct, and A.M.’s family contacted police. 

 

>Statutory Rape

                        Liwanag met B.H. online
in 2008 when she was about 15 years old. 
Although he was 21 years old at the time, Liwanag told B.H. he was only
19 years old.  In February 2010, Liwanag
traveled to B.H.’s parents’ home in Washington,
stayed with the family, and had oral sex with B.H.  In May, B.H. came to visit Liwanag in California.  They spent three days at an Anaheim
hotel where they had sexual intercourse. 
Liwanag was arrested during this visit.

                        After his arrest,
Liwanag waived his Miranda rights (>Miranda v. Arizona (1966) 384
U.S. 436) and talked to a detective with the Anaheim Police Department.  He admitted lying to B.H. about his age,
having sexual contact with her when he visited her family’s home, and have
sexual intercourse when she came to Orange
County.  He admitted touching A.M.’s vagina, but
initially denied any digital penetration. 
Later, he said he was not sure whether he digitally penetrated her, and
claimed he stopped when she asked him to do so. 
He said he “probably” touched her breasts, and admitted he touched her
buttocks over and under her clothing.

                        As for J.D., Liwanag
said he once put his hand near her vagina, but said he was holding her hand and
trying to get in a comfortable position. 
He claimed he did not intend to touch her private parts.

                        At trial, Liwanag
admitted he touched A.M. three times and had sexual intercourse with B.H.  He denied touching J.D.’s vagina while they
were lying on a bed together, and denied he ever was on a bed with J.D. and A.M.  In essence, he denied any unlawful contact
with J.D.

> 

>Closing Argument

 

>                        During
closing argument, defense counsel stated, “Well, I don’t envy you; that’s your
job.  But remember the presumption of
innocence, and that’s what we went through the first day.  And I went through that several times, and
God knows it must have been very boring for you guys having to hear it over and
over and over again, and I apologize about that, but that’s something that we
have to stress as defense counsel.”  Counsel
conceded the evidence proved his client committed lewd acts with A.M. and
committed statutory rape with B.H., but denied any improper contact with J.D.,
asserting her testimony was the result of someone succumbing to the power of
suggestion.

                        The prosecutor responded
to the defense attorney’s indirect suggestion J.D. lied about the two incidents
involving her, and stated, “Presumption of innocence is over, for as much talk
as we’ve heard about it.  You’ve heard
all the evidence, you’ve heard all the arguments.  As soon as I shut up, we’re done with
everything you’re going to hear in this case. 
That presumption is done.  You
don’t have to presume anything because you’ve heard everything you need to hear
already to convict the defendant.  This
is all stuff we talked about already. 
I’m not going to keep going through it. 
[¶] Again, your job in this is to come back and give us the
truth . . . I’m asking you to give us every little detail
and to make sure that every part of that story gets told, that you don’t ignore
parts of that story just because the defense was willing to live with the other
ones . . . .  You
don’t leave out parts of that story and say, hey, [J.D.], sorry, we believed
you, we know he did it, but we kind of wanted to get out of there.  You make sure every single part of that story
is told and that he’s held accountable for every single thing that he did.”

 

DISCUSSION

 

                        Liwanag points to the
prosecutor’s statement, “the presumption of innocence is over” and argues the
prosecutor committed misconduct by misstating the law.  The Attorney General asserts Liwanag
forfeited the issue by failing to object at trial.                   On
appeal, a defendant may not complain of prosecutorial misconduct unless he
objected to the misconduct in the court below and asked that the jury be
admonished to disregard the impropriety. 
(People v. Cunningham (2001) 25 Cal.4th 926, 1000.)  If no objection was made, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct.  (Id. at pp.
1000-1001.) 

                        In this case, any harm
caused by the alleged misconduct could have easily been cured by an appropriate
admonition.  However, Liwanag made no
objection to the prosecutor’s remarks and thus has waived his claim.  “His appeal is foreclosed on that
basis.”  (People v. Morales (2001)
25 Cal.4th 34, 44.)  Moreover, even if
the claim had not been waived, it would lack merit.

                        “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, and particularly pertinent here,
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, supra, 25 Cal.4th at
p. 44.)        

                        name="sp_999_9">Applying these standards here,
when viewed in the
context of defense counsel’s argument and the entire rebuttal argument, the
prosecutor’s comment cannot reasonably be construed as urging the jury to
convict before deliberating.  name=FN14>While any prosecutor who explains the presumption of innocence
and the standard of proof beyond a reasonable doubt to a jury in a way that
blurs either principle is courting reversible error, in this case there is no
“reasonable likelihood that the jury construed or
applied . . . the complained-of remarks” in the manner
urged by Liwanag.  (People v. Morales, supra, 25 Cal.4th at p. 44.)

name=B013132025593276>                        People
v. Goldberg (1984) 161 Cal.App.3d 170 (Goldberg) is particularly instructive.  In Goldberg,
the prosecutor argued, “‘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.’”  (>Id. at p. 189, original
italics.) 

                        On appeal, defendant
argued the prosecutor committed misconduct by stating the presumption of
innocence no longer applied.  (>People v. Goldberg, supra, 161 Cal.App.3d at p. 189.)  However, the appellate
court looked to the trial court’s instructions and concluded these instructions
cured any prejudice.  (>Id. at pp. 189-190.) “Once an otherwise
properly instructed jury is told that the presumption of innocence obtains
until guilt is proven, it is obvious that the jury cannot name="SDU_190">find
the defendant guilty until and unless they, as the fact-finding body,
conclude guilt was proven beyond a reasonable doubt.”  (Ibid.) 

                        The same result should
obtain in this case and for the same reasons. 
Here, as in Goldberg, the
trial court properly instructed the jury on the presumption of innocence and
the prosecution’s burden of proof (CALCRIM Nos. 103, 220), and told the jury
any conflict between the attorney’s comments and the court’s instructions was
to be resolved in favor of the court’s instructions (CALCRIM No. 104).  Under these circumstances, there is no
reasonable likelihood the prosecutor’s comments affected the jury’s
deliberations in this case.

                        Liwanag’s reliance on name=SearchTerm>Mahorney
v. Wallman (10th Cir. 1990) 917 F.2d 469, is misplaced.  In Mahorney, the prosecutor misstated the presumption
of innocence during voir dire and closing argument.  On each occasion, defense counsel objected to
the prosecutor’s statements, but the trial court immediately overruled the
objection in the jury’s presence, thereby placing an “official imprimatur” on
the prosecutor’s misstatements.  (Id.
at p. 473.)  In this case, unlike
Mahorney, the prosecutor’s misstatement was much less significant, and
defense counsel likely made a tactical decision to remain silent in an effort
to avoid drawing attention to it. 

                        Finally, even if there
had been misconduct and no waiver, Liwanag’s related ineffective assistance of
counsel claim would fail because he cannot prove prejudice.  “To establish ineffective assistance of
counsel under either the federal or state guarantee, a defendant must show that
counsel’s representation fell below on objective standard of reasonableness
under prevailing professional norms, and that counsel’s deficient performance
was prejudicial, i.e., that a reasonable probability exists that, but for
counsel’s failings, the result would have been more favorable to the
defendant.”  (Strickland v. Washington
(1984) 466 U.S. 668, 687-688.)  In this
case, for all of the reasons we have discussed there is simply no reasonable
probability that, but for defense counsel’s alleged failings, the result would
have been more favorable to Liwanag.

 

DISPOSITION

 

                        The judgment is modified
to reflect an award of 50 days presentence conduct credits, plus 339 actual
days served for a total of 389 days of presentence custody credits.  The clerk of the superior court is directed
to amend the abstract of judgment and forward a copy to the Department of
Corrections and Rehabilitation.  In all
other respects, the judgment is affirmed.

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

 

O’LEARY, P.
J.

 

 

 

MOORE, J.