Filed 5/21/18 P. v. Miller CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

CORDERRO DONTE MILLER,

Defendant and Appellant.
C083193

(Super. Ct. No. 15F02265)



Defendant Corderro Donte Miller appeals from a judgment entered after jury verdicts finding him guilty of: (1) inflicting great corporal injury on a parent of his child (Pen. Code, § 273.5, subd. (a)), with a finding of true to the special allegation that in the commission of this offense he inflicted great bodily injury on the victim (§ 12022.7, subd. (e)); (2) forcible sexual penetration with a foreign object (§ 289, subd. (a)(1)); and (3) child endangerment (§ 273a, subd. (a)).
The jury found defendant not guilty of assault with a firearm (§ 245, subd. (b)) and two counts of making criminal threats (§ 422). It determined the use enhancements associated with these counts (§§ 1203.06, subd. (a)(1), 12022, subd. (b)(1), 12022.5, subds. (a)(1) & (d)) were not true.
Defendant contends the judgment must be reversed because: (1) the prosecutor’s closing argument impermissibly lowered the burden of proof violating the Sixth and Fourteenth Amendments and (2) the trial court’s failure to sua sponte instruct on lesser included offenses resulted in a miscarriage of justice.
We affirm.
I. DISCUSSION
A. Prosecutorial Misconduct
Defendant argues the prosecutor’s closing argument impermissibly lowered the burden of proof violating the Sixth and Fourteenth Amendments, requiring reversal. He contends this issue is cognizable despite his counsel’s failure to object in the trial court, and alternatively, that his counsel failed to provide effective assistance in not objecting to the People’s improper argument, which prejudiced him.
While defendant’s failure to object to the People’s argument has forfeited this claim on appeal (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno)), we retain discretion to decide this issue of constitutional importance. (People v. Marchland (2002) 98 Cal.App.4th 1056, 1061 [appellate court may exercise discretion to consider constitutional issues raised for the first time on appeal].) Addressing the merits of his claims, we find any prosecutorial misconduct was harmless and thus do not reach his ineffective assistance of counsel claim.
1. Factual Background
Before closing argument, the trial court properly instructed the jury on reasonable doubt, stating: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
In the People’s initial closing argument, the prosecutor clearly stated, “[I]t’s my burden to prove this case to you beyond a reasonable doubt . . . .” The People then argued concerning the evidence presented and how it met the applicable standards.
Defendant’s counsel then took his turn. After making introductory remarks, he reminded the jury of the prosecutor’s need to prove the case “beyond a reasonable doubt” and commented: “And the language that is set in stone on how to describe that main word is ‘abiding,’ it’s an abiding conviction when you make your decision that you made the right decision.” He continued: “Abiding I think boils down to it’s long term. If someone came back to you in six months and asked you about your decision, do you have any regrets? Anything you’d do differently? And your answer is no, no. That’s essentially the threshold that we’re talking about.
“This is the highest threshold in our legal system and it’s the most important. We’re talking about convictions, we’re talking about people’s lives on both sides, complaining witness/defendant. So I think it’s not something to take lightly, I think it’s something to understand and apply to each and every element that is required to be proven by the People. Please don’t forget that standard when you’re applying it. It’s very important.”
The challenged statements happened in the People’s rebuttal argument wherein the prosecutor stated in pertinent part:
“Reasonable doubt, this is the standard that I have to prove the case to you by. [¶] In deciding whether the case was proved beyond a reasonable doubt, you must consider all the evidence that was received throughout [the] entire trial. [¶] The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“So the doubt that you have to have must be reasonable, okay? Now, do not be intimidated by this standard. It’s the highest standard that we have in our judicial system. You have to have an abiding conviction, but do not be intimidated by that because you all know what reasonable doubt is, you use it every single day of your lives, you just don’t call it that because that is not the way people talk. I can tell you beyond a reasonable doubt that my favorite food is anything with buffalo sauce; okay? I know that beyond a reasonable doubt, I have an abiding conviction that that is true. So you all know what it is, do not be intimidated by this standard.” (Italics added.)
Defendant’s counsel did not object to this argument. The court’s final instruction did not discuss the People’s burden of proof. However, after the jury reported it was deadlocked on one count, the court reread the instructions pertaining to that count and reinstructed the jury in pertinent part that: “You must accept and follow the law that I’ve stated to you regardless of whether you agree with the law. If anything—if anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflict with my instructions on the law, including the instructions I just gave to you, you must follow my instructions.”
2. Analysis
As we have previously explained, “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].’ [Citation.] Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.] Improper comments falling short of this test nevertheless constitute misconduct under state law if they involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] To establish misconduct, defendant need not show that the prosecutor acted in bad faith. [Citation.] However, [he] does need to ‘show that, “[i]n the context of the whole argument and the instructions” [citation], there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ [Citation.]” (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).)
“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.]” (Centeno, supra, 60 Cal.4th at p. 667.) While there is no categorical rule prohibiting reasonable doubt analogies, we have repeatedly discouraged this practice by both members of the bench and bar because of “the ‘difficulty and peril inherent in such a task.’ ” (Ibid.) Accordingly, we have cautioned “[c]ounsel trying to clarify the jury’s task by relating it to a more common experience must not imply that the task is less rigorous than the law requires.” (Id. at p. 671.)
Relevant to the argument presented in this case, “ ‘[t]he judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of the evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. . . . There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence.’ ” (People v. Nguyen (1995) 40 Cal.App.4th 28, 36 (Nguyen), quoting People v. Brannon (1873) 47 Cal. 96, 97.) Thus, equating the reasonable doubt standard to decisionmaking in everyday life such as whether to marry or changing traffic lanes constitutes prosecutorial misconduct. (Nguyen, supra, at p. 36.)
The People argue the prosecutor’s argument here is permissible because rather than equating reasonable doubt to every day decisions, she argued “jurors have abiding convictions in their everyday lives that are tantamount to knowing something beyond a reasonable doubt.” We find this distinction unpersuasive. Having an abiding conviction in a favorite food is a judgment in everyday life and thus is governed by a preponderance of the evidence. (People v. Brannon, supra, 47 Cal. at p. 97.)
Nonetheless, we must decide whether “there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] 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. [Citation.]’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
Rather, “ ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] ‘[P]rosecutorial commentary should not be given undue weight in analyzing how a reasonable jury understood . . . instructions. Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel’s assertions are the “statements of advocates.” Thus, argument should “not be judged as having the same force as an instruction from the court.” ’ ” (Cortez, supra, 63 Cal.4th at pp. 131-132.)
Here, the trial court clearly instructed the jury on the reasonable doubt standard. It also twice instructed the jurors to follow the law as it explained it and to disregard any attorney argument that conflicted with its instructions; once before argument and then again after the jury temporarily deadlocked on one count. We presume the jury followed the court’s instructions. (Nguyen, supra, 40 Cal.App.4th at p. 37.)
The misconduct at issue here is distinguishable from the prosecution’s argument in Centeno, which used an inaccurate diagram of California to illustrate a suggested application of the reasonable doubt standard (Centeno, supra, 60 Cal.4th at pp. 665-666, 676-677) and wherein the jury was urged “to convict based on a ‘reasonable’ view of the evidence” (id. at p. 662.) Such “argument unduly risked misleading the jury about the standard of proof.” (Ibid.) As had been found by previous authorities, “[i]t [was] misleading to analogize a jury’s task to solving a picture puzzle depicting an actual and familiar object unrelated to the evidence.” (Id. at p. 670.) Such demonstrations “encourage[] the jurors to guess or jump to a conclusion” in their reasonable doubt determination. (Id. at p. 669.) Further, the prosecutor “repeatedly suggested that the jury could find defendant guilty based on a ‘reasonable’ account of the evidence[,]” which “clearly diluted the People’s burden.” (Id. at p. 673.)
Here, the prosecutor’s argument concerning her abiding conviction of her love of barbeque sauce did not encourage the jury to “guess or jump to a conclusion” in its determination. (Centeno, supra, 60 Cal.4th at p. 669.) Nor did it suggest the jury should convict based on a mere reasonable account of the evidence. (Id. at p. 673.) To the extent it invoked the preponderance of the evidence standard by reference to everyday life, such suggestion conflicted with the judge’s instructions, which we presume the jury followed. (Nguyen, supra, 40 Cal.App.4th at p. 37.) Under these circumstances, it is not reasonably likely the prosecutor’s comment concerning her abiding conviction about her favorite food caused the jury to misapply the reasonable doubt standard. (Cortez, supra, 63 Cal.4th at p. 130.) Accordingly, we find the prosecutor’s misconduct in this case does not require reversal.
B. Instructions on Lesser Included Offenses
Defendant argues the trial court’s failure to sua sponte instruct the jury on the “lesser included offenses of sexual battery [(§ 243.4, subds. (a), (e)(1))] and assault with intent to commit forcible sexual penetration [(§ 220)] resulted in a miscarriage of justice.” He contends both these crimes are lesser included offenses of forcible sexual penetration with a foreign object. (§ 289, subd. (a)(1).) The People concede these can be lesser included offenses under circumstances not present in the record and argue that any error in failing to give the corresponding instructions was harmless. We conclude there was no error because even though these may be lesser included offenses, there was not substantial evidence from which a reasonable jury could conclude that the lesser offenses, but not the greater, were committed.
As the Supreme Court recognized in People v. Hughes (2002) 27 Cal.4th 287 (Hughes): “ ‘ “The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.” ’ [Citation.] As we have explained, instructing on lesser included offenses shown by the evidence avoids forcing the jury into an ‘unwarranted all-or-nothing choice’ [citations] that could lead to an unwarranted conviction. [Citations.] [¶] ‘An offense is necessarily included in another if . . . the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater.’ [Citation.] In other words, when the greater crime ‘cannot be committed without also committing another offense, the latter is necessarily included within the former.’ [Citation.]” (Id. at pp. 365-366.)
“ ‘[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and] . . . an erroneous failure to instruct on a lesser included offense constitutes a denial of that right . . . .’ [Citations.] To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 645.)
“ ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’ that the lesser offense, but not the greater, was committed.” (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) “In deciding whether evidence is ‘substantial’ in this context, a court determines only its bare legal sufficiency, not its weight.” (Id. at p. 177.) “On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given.” (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
As found in People v. Ortega (2015) 240 Cal.App.4th 956, under the expanded accusatory pleading test, “sexual battery is a lesser included offense of forcible sexual penetration where, as here, the preliminary hearing testimony identified defendant’s fingers as the only object supporting the forcible sexual penetration charge.” (Id. at p. 967.) Likewise, assault with an attempt to commit forcible sexual penetration is a lesser included offense of forcible sexual penetration. (See In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [assault with intent to commit rape is lesser included offense to rape because “[e]very act of rape, of course, necessarily includes an assault”].)
However, instructions on sexual battery and assault with an attempt to commit forcible sexual penetration were only required if there was “substantial evidence” in the record from which a reasonable jury could have determined “the lesser offense, but not the greater offense, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.)
In a similar case the Supreme Court determined whether the lower court erred in not instructing on the lesser included offense of battery (§ 242) to the offense of forcible sodomy (§ 286, subd. (a)). (Hughes, supra, 27 Cal.4th at pp. 366-367.) It concluded that battery was a lesser included offense of forcible sodomy, but “there was insufficient evidence to require the sua sponte giving of an instruction on battery.” (Id. at p. 366.) Evidence that bruises “inside the victim’s rectum were consistent with penetration by either a penis or a finger (or another blunt object), and [that] there was no physical evidence of penile penetration . . . [did not amount] to substantial evidence that defendant was guilty of battery, but not forcible sodomy.” (Id. at p. 367.) Thus, the Hughes court implicitly rejected the need to instruct on battery where the evidence presented established that if a crime was committed it was forcible sodomy, not mere battery. (Ibid.)
Here, the People’s and defendant’s evidence show that the initial sexual encounter, including the digital sexual penetration was consensual. The disagreement concerned what occurred after the victim decided she no longer wanted to engage in sexual contact with defendant.
The victim testified she was no longer comfortable with the defendant’s digital penetration of her vagina when he started getting rough, causing pain. She “pulled his hands back and was like ‘stop.’ ” She tried to shift positions, and defendant then “got really forceful and grabbed [the victim] and was holding [her] down like onto his chest as he proceeded to stick his three fingers up [her] rectum.” The victim first asked defendant to stop and then she screamed, “Stop.” She held “his wrist as he was holding onto [her], to pull him out of [her] rectum.” In response, defendant told her that she “was going to take it.” Ultimately, she successfully extracted his fingers.
In contrast, defendant’s version of events was that the victim did not tell him “it was uncomfortable” and “just jumped off of [his] hand, like got off of [his] hand.” “She wasn’t happy, but nor was she upset either.” They “didn’t continue to have sex.”
Thus, the dispute concerned whether there was digital penetration by force after the victim revoked her consent. This is reflected in defendant’s attorney’s closing argument that stated: “The issue is, did he then try to pin her down after she moved away and/or, and/or said no?” He argued the encounter was consensual up until the victim’s moving away and that “it stopped because she moved away. No further event. It was consensual sex that had been executed many, many times before.”
Therefore, there was no substantial evidence before the jury from which it could have determined that defendant committed sexual battery or assault with an attempt to commit forcible sexual penetration without committing forcible sexual penetration. There was no evidence defendant attempted to continue sexual contact, but was unsuccessful; nor is there evidence that defendant made sexual contact, but did not penetrate the victim. The only evidence of sexual contact after the victim’s revocation of consent was forcible sexual penetration. Defendant said this contact did not occur. The jury found that it did.
Defendant’s reliance on People v. Ortega, supra, 240 Cal.App.4th 956 is unavailing because it does not analyze the substantial evidence inquiry this case turns upon. Here, like the court in Hughes, we must consider whether there was “ ‘ “ ‘evidence from which a jury composed of reasonable [persons] could . . . conclude[]’ ” that the lesser offense, but not the greater, was committed. [Citations.]’ ” (Hughes, supra, 27 Cal.4th at pp. 366-367, italics omitted, quoting Breverman, supra, 19 Cal.4th at p. 162.) We find there is not: If defendant was guilty of anything pertaining to the sexual contact, it was forcible sexual penetration. There is no basis other than “an unexplainable rejection of the prosecution’s evidence” upon which the jury could find that that the lesser, but not the greater had occurred. (People v. Kraft, supra, 23 Cal.4th at p. 1063.)
II. DISPOSITION
The judgment is affirmed.


/S/

RENNER, J.



We concur:


/S/

BUTZ, Acting P. J.


/S/

HOCH, J.