P. v. Walden

Filed 3/5/07 P. v. Walden CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, George Lomeli, Judge. Affirmed in part, reversed in part with directions.

Koryn & Koryn and Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

I. INTRODUCTION

Defendant, Samuel Walden, appeals from his conviction for two counts of lewd act upon a child. (Pen. Code,^[1] 288, subd. (a).) Defendant argues that the prosecutor committed misconduct and there was insufficient evidence to support the trial courts order for Auto Immune Deficiency testing. We agree there was insufficient evidence to support the testing order but otherwise affirm the judgment.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v.Osband (1996) 13 Cal.4th 622, 690; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On July 30, 2005, eight-year-old Katherine P. was with her parents. Also, Katherines younger sister was present with them. Katherine went to a newspaper rack outside the Robinson-May store. While Katherine was attempting to buy the newspaper, defendant approached her. Defendant stood to the left of Katherine and touched her private part between her legs. Katherines mother was attempting to raise the door on the newspaper dispenser. Katherine moved toward the news rack. Katherine asked defendant why he touched her. Defendant walked away without responding. Katherine was frightened and began to cry. Defendant was carrying a bottle of beer and a backpack or duffel bag.

Katherine got into the family car. Katherines mother also got into the car. They advised Katherines father what had occurred. Katherine continued to watch defendant. Katherines father then followed defendant in the car. While they were following him, defendant approached another little girl. Katherine saw defendant touch the girls private area. The girl was with an older woman. Katherines father continued to follow defendant, who went to a Subway sandwich store. Defendant came out with a glass. Thereafter, defendant approached another girl. Katherine then saw defendant touch the vaginal area of the third girl. When defendant touched Katherine on July 30, 2005, he appeared to be drunk. Defendant had trouble walking.

Eleven-year-old Itzel G. accompanied a friend, Christine, to see a movie on the evening of July 30, 2005. While in the parking lot of the theatre, defendant approached them. Christines mother was also present. Defendant was walking sort of wobbly, like a drunk man would and smelled like alcohol. As defendant walked towards them, his pants dropped down to his knees. Defendant touched close to Itzels private part in the groin area, pressing his fingers against her. Defendant then passed between Itzel and Christine. Defendant was carrying a bag. Itzel heard the sound of glass breaking after defendant touched her.

III. DISCUSSION

A. Alleged Prosecutorial Misconduct

1. Factual and procedural background

Defendant argues that the prosecutor committed misconduct by maligning defense counsel and the credibility of the defense. Defense counsel argued defendant was unable to form the specific intent to commit a lewd act. In response, the prosecutor argued: Despite I think what [defense counsel] said I might be asking you to do, I think you should follow the law and you should consider the defendants intoxication. Thats what the law tells you to do. Im not afraid of your doing that. [] And I heard a lot from [defense counsel] in the vein of a circular argument, which is [defendant] was really drunk so he didnt have the intent. But he doesnt really address the total world of the case in this case. You cant pick each piece out and look at it in a vacuum and say, Well, he was drunk and thats a reason for this, and then look at another piece of evidence and say Absent anything, he was drunk, and thats a reason for this. [] The instruction of reasonable doubt tells you that you reach that state of mind, reasonable doubt or no reasonable doubt, after careful consideration and comparison of all of the evidence. The law is telling you look at all of these things together. Only together, as a whole, can you understand the course of events that took place on July 30. [] So what should you do? What was [defense counsel] telling you that you should do in this case? That the defendant was absolutely and unbelievably inebriated, and I think his argument is really, therefore, he couldnt have formed the intent . Defense counsel then objected: Your honor, I object. Counsel keeps talking about capacity. Its not about capacity. The trial court overruled the objection. The prosecutor continued that she was not arguing that defendant was not drunk. Rather, the prosecutor argued, [Y]ou should consider that and say to yourself, Well, given that he was under the influence of alcohol, could he form and did he form that mental intent thats necessary to prove this crime, the specific intent to arouse his sexual passions? The prosecutor continued, [Defense counsel] is proposing to you an explanation that isnt supported by the evidence. Defendant argues that the prosecutors comments constituted a personal attack on defense counsel.

2. Waiver

Preliminarily, the California Supreme Court has held that a reviewing court will generally not review a claim of prosecutorial misconduct unless an objection and request for admonishment was raised at trial, or unless a curative admonition would not have cured the harm. (People v. Sapp (2003) 31 Cal.4th 240, 279; People v. Navarette (2003) 30 Cal.4th 458, 507; People v.Ochoa (1998) 19 Cal.4th 353, 427.) The Supreme Court has held, The reason for this rule, of course, is that the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instruction the harmful effect upon the minds of the jury. [Citation.] [Citation.] (People v.Cox (1991) 53 Cal.3d 618, 682, quoting People v.Green (1980) 27 Cal.3d 1, 27, disapproved on another point in People v. Dominguez (2006) 39 Cal.4th 1141, 1155, fn. 8, and People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Defense counsel failed to request a curative admonition. Defendants claim of prosecutorial misconduct as to the prosecutors comments has been forfeited.

3. No misconduct occurred

Notwithstanding such forfeiture, we find no misconduct occurred. In reviewing the principles governing findings of prosecutorial misconduct the California Supreme Court has consistently noted: The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] 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 court or the jury. [Citation.] [Citation.] (People v.Hill (1998) 17 Cal.4th 800, 819, quoting People v.Gionis (1995) 9 Cal.4th 1196, 1214; People v.Espinoza (1992) 3 Cal.4th 806, 820, and People v.Samayoa (1997) 15 Cal.4th 795, 841; see also Donnelly v.DeChristoforo (1974) 416 U.S. 637, 642-643; People v.Harris (1989) 47 Cal.3d 1047, 1084, criticized on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.) The California Supreme Court has held: [A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . . . . . [He] . . .   . . . is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets . . . . (People v.Wharton [(1991)] 53 Cal.3d [522] 567-568 [].) [Citation.] (People v.Hill, supra, 17 Cal.4th at p. 819, quoting People v.Williams (1997) 16 Cal.4th 153, 221; People v. Brown (2003) 31 Cal.4th 518, 554.) The Supreme Court recently held: [W]hen 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. (People v. Morales (2001) 25 Cal.4th 34, 44; People v. Ayala (2000) 23 Cal.4th 225, 283-284.) Furthermore, the California Supreme Court has held that a prosecutors comments in closing argument must be viewed in context with the remainder of the summation. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318, 326; see also People v.Medina (1995) 11 Cal.4th 694, 759-760; People v.Pensinger (1991) 52 Cal.3d 1210, 1250.)

Here, the prosecutors comments were brief, isolated, and proper. The Supreme Court has held, It is not . . . misconduct to ask the jury to believe the prosecutions version of events as drawn from the evidence. (People v. Huggins (2006) 38 Cal.4th 175, 207.) The Huggins court further held that a prosecutors comments explicitly aimed at [defense] counsels closing argument and statement do not amount to an attack on defendants attorneys integrity. (Ibid.; see also People v. Stitely (2005) 35 Cal.4th 514, 560; People v. Sapp, supra, 31 Cal.4th at p. 279; People v. Navarette, supra, 30 Cal.4th at p. 507; People v. Cash (2002) 28 Cal.4th 703, 733 [prosecutor afforded wide latitude in describing factual deficiencies of the defense case].)

4. Prejudice

Moreover, there was overwhelming evidence of defendants guilt. As a result, even if the prosecutors comments were inappropriate, it was not reasonably probable the comments influenced the jurys guilt determination. (People v. Crew (2003) 31 Cal.4th 822, 839; People v Barnett (1998) 17 Cal.4th 1044, 1133; People v.Medina, supra, 11 Cal.4th at p. 760; People v. Stansbury, supra, 4 Cal.4th at p. 1057; People v.Pensinger, supra, 52 Cal.3d at p. 1250.) The jurors were instructed that the arguments of counsel were not evidence. (CALJIC No. 1.02.) The California Supreme Court has consistently stated that on appeal it is presumed that the jury followed the instructions they are given. (People v.Bradford (1997) 15 Cal.4th 1229, 1337; People v.Osband (1996) 13 Cal.4th 622, 714; Peoplev. Kemp (1961) 55 Cal.2d 458, 477; see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)

B. Evidence Requiring Section 1202.1, Subdivision (a) Testing

Defendant argues there was insufficient evidence to support the trial courts order that he submit to auto immune deficiency testing pursuant to section 1202.1, subdivision (a). The Attorney General agrees that the record does not indicate the trial court made the statutorily required determination that bodily fluid capable of transmitting the human immunodeficiency virus was transferred from defendant to his victims. Defendant argues that the order requiring such testing should be stricken. The Attorney General argues that the matter should be remanded to allow the trial court to determine whether the prosecutor has evidence to establish the probable cause for the imposition of such testing.

Section 1202.1 provides in pertinent part: (a) . . . [T]he court shall order every person who is convicted of . . . a sexual offense listed in subdivision (e) . . . to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) within 180 days of the date of conviction. . . . [] (e) For purposes of this section, sexual offense includes any of the following: [] . . . [] (6)(A) Any of the following offenses if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim: [] . . . [] (iii) Lewd or lascivious conduct with a child in violation of Section 288. [] . . . [] (B) For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared. In People v. Butler (2003) 31 Cal.4th 1119, 1126, the California Supreme Court held: [A] testing order is authorized under Penal Code section 1202.1, subdivision (e)(6)(A) upon specified conditions: conviction of an enumerated offense and a finding of probable cause. (Italics added.) The Butler court further held: [I]f the trial court orders testing without articulating its reasons on the record, the appellate court will presume an implied finding of probable cause. [Citation.] Nevertheless, because the terms of the statute condition imposition on the existence of probable cause, the appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record. (Id., at p. 1127; see People v. Stowell (2003) 31 Cal.4th 1107, 1114-1115.)

Here, the record does not provide evidentiary support for a finding that bodily fluids capable of transmitting human immunodeficiency virus were transferred from defendant to either victim. Defendant touched each victim with his hand in their vaginal area on top of their clothing. The Butler court addressed the remedy where, as here, the trial court did not specify that it found probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting human immunodeficiency virus has been transferred from the accused to the victim, Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. (People v. Butler, supra, 31 Cal.4th at p. 1129.) We therefore remand the matter to allow the prosecution the opportunity to offer additional evidence at further proceedings to establish the requisite probable cause for testing.

IV. DISPOSITION

The Penal Code section 1202.1, subdivision (a) testing order is reversed. Upon issuance of the remittitur, the trial court is to conduct further proceedings, if elected by the prosecution, at which evidence may be offered to establish probable cause to support the order. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

MOSK, J.

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