People v. Saucedo-Zepeda CA1/3 ( 2021 )

Filed 12/28/21 P. v. Saucedo-Zepeda CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A160101
v.
ENRIQUE SAUCEDO-ZEPEDA, (City & County of San Francisco
Super. Ct. No. SCN230061)
Defendant and Appellant.
Defendant Enrique Saucedo-Zepeda appeals after a jury found him
guilty of two counts of rape. On appeal, defendant argues: (1) the prosecutor
engaged in misconduct; (2) defense counsel provided ineffective assistance;
(3) insufficient evidence supported the verdicts; and (4) multiple errors
caused cumulative prejudice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged defendant with rape of a person who was
unconscious or asleep (Pen. Code, § 261, subd. (a)(4)(A),1 count I), and rape of
a person who was prevented from resisting by any intoxicating or anesthetic
substance, or controlled substance (§ 261, subd. (a)(3), count II), both
occurring on or about May 20, 2014. A jury convicted defendant of both
counts. The trial court sentenced defendant to six years in prison on count I
1 All further statutory references are to the Penal Code unless otherwise
indicated.
and, pursuant to section 654, imposed but stayed a three-year term on
count II.
The following is a brief summary of some of the trial evidence. The
victim, W.V., testified that in May 2014, she attended a party at defendant’s
home with her then-boyfriend, E.Y.2 The victim is four feet 10 inches tall,
and at the time weighed about 125 pounds. She arrived at the party around
noon, and by 4:00 p.m. she had consumed four to five beers and two shots of
tequila, and started to feel sleepy. She told E.Y., who obtained defendant’s
permission for her to lie down in his room. The victim and E.Y. went to
defendant’s room, where E.Y.’s cousin was asleep on another bed. The victim
fell asleep fully clothed.
The victim awoke when she felt she was being penetrated, and she
knew it was not E.Y. She opened her eyes and said “no,” to which defendant
responded by pulling his penis out of her, pulling up his pants, and leaving.
She did not see him remove a condom and did not think he wore one. After
defendant pulled out, her vagina felt wet, like he had ejaculated. The victim
pulled up her clothes and, shortly thereafter, E.Y. entered the room and she
asked him to get her out of there.
The victim testified she cried and was in disbelief after the incident,
but did not immediately tell E.Y. what happened because she was
embarrassed and scared that he may have had some role in it. Around 2:00
a.m., she heard E.Y. receive a call from defendant asking why they had left
and if something happened; E.Y. responded they were fine and asleep.
Around 8:00 a.m., the victim finally told E.Y. what happened. Shocked, E.Y.
2 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy
in opinions,” we refer to the victim and her former boyfriend by their initials
only.
2
called defendant and confronted him, asking why he had done that if they
were friends, and saying that he could not believe defendant had abused the
victim. Defendant asked E.Y. to excuse him and said he was drunk. After
the call, E.Y. tried to calm the victim down, but seemed not to want to report
the matter to the police. Later that day, the victim disclosed the incident to a
friend who called the police.
The police took the victim to the hospital for a sexual examination,
which revealed some injuries to her genitalia. The forensic nurse specialist
swabbed various parts of the victim’s body and collected her underwear. One
prosecution criminalist who analyzed the deoxyribonucleic acid (DNA)
evidence testified it was “pretty conclusive” that defendant was a contributor
to the sperm mixture found on vaginal swabs taken from the victim.3
After the examination, the police and victim conducted a pretext call,
which was recorded and admitted into evidence. During that pretext call, the
victim accused defendant of having sex with her while she was sleeping.
Defendant responded that he owed her an apology, then the phone line
disconnected. The victim called him back and asked for the truth and if he
had diseases. She indicated she did not want to tell the police because she
knew he had a family. He responded he had no diseases and said he knew
and accepted that he messed up. He also repeatedly apologized. The victim
asked if defendant had “finished” inside of her, and he responded: “No, I did
not finish. As I said, I was just starting to try to have sex. [¶] . . . [¶] When
3 This criminalist, who worked with the San Francisco Police
Department, conducted DNA analysis to determine the statistical probability
that defendant contributed to the DNA mixture. While testifying the results
were “pretty conclusive” that defendant was a contributor, the criminalist
acknowledged that DNA can be indirectly transferred without intimate
touching, such as by sleeping in someone else’s bed.
3
you woke up and said no, I said ‘Ok.’ I pulled out.” The victim responded, “I
did not say no. I just woke up . . .” Defendant then explained, “Yes, I mean
you woke up and said ‘Oh, no,’ that’s when I stopped and pulled out.”
Defendant admitted he took advantage of the fact that she was alone to go
inside the room. At one point, he tried to deny penetrating the victim. When
pressed, however, he soon conceded, “Maybe once” and then “Yes, you — I
penetrated you, you woke up and I pulled out. Okay? I did not finish.”
E.Y. testified when the victim went to lie down in defendant’s bedroom
at around 2:00 or 3:00 p.m., they had sex. He then left her in the bedroom for
about two hours while he played cards with the others in the yard. E.Y.
recalled that at some point, defendant said he needed to use the bathroom
and was gone for 10 to 15 minutes. E.Y. went back to the bedroom at around
4:00 or 5:00 p.m. The victim was crying on the bed and asked him to “get her
out of the room as soon as possible.” After leaving, the victim was
inconsolable and later disclosed that defendant had raped her. E.Y. further
recalled that defendant called at around 11:00 p.m., asking why he left, and
E.Y. just said he had things to do. The next day, E.Y. called and confronted
defendant, asking why he abused the victim, to which defendant responded
by asking for forgiveness and saying he was drunk. E.Y. and the victim
subsequently ended their relationship.
Defendant took the stand in his defense. He testified that E.Y., E.Y.’s
brother, and E.Y.’s cousin arrived around 9:30 a.m. the day of the party. The
victim—whom defendant never met before—arrived around noon. Defendant
saw the victim drink beer and tequila, and he himself drank a lot that day.
At some point, he felt drunk, so he went to his room to rest not knowing the
victim was there. When he woke up, the victim was in his bed, and he saw
she was awake. Her eyes were open, and she “responded” to his touch—
4
meaning she did not say “no” and she touched him back, though he could not
remember how she touched him. He testified on direct examination that he
took off her pants and underwear, did not put on a condom, and they started
having sex. He could not remember if he penetrated her, but he tried to. On
cross-examination, he said he remembered penetrating her, but only once.
According to defendant, E.Y. called him the next day upset and asked
generally “why did [he] do that,” to which defendant apologized. E.Y. told
defendant he was going to call the police, to which defendant responded,
“that’s fine.” The victim called him, too, and he agreed with her accusations
because she sounded angry and he did not want to anger her more. That
night, while defendant was at the store, the police went to his house. His
uncle told him to leave because all the residents were immigrants and he did
not want any problems. Afraid of the police and of being arrested, defendant
left that night for Fresno, where he was arrested about three years later in
April 2017.4
After his arrest, defendant was interviewed by Sergeants Wendy Bear
and Priscilla Kenney of the San Francisco Police Department. He told them
he went to Fresno because he was afraid. He affirmed he walked into the
bedroom, saw the victim asleep, and thought to have sex with her. He said
he used a condom and had sex with the victim while she was asleep. When
they asked if he had questions or anything to say that could help him,
defendant responded he felt bad and said, “Nothing is to my favor.” During
4 Defendant, E.Y., and E.Y.’s brother all worked for the same employer.
The employer testified that when the alleged incident occurred, he heard E.Y.
and another employee having an intense conversation at work. When the
employee told him what had occurred, the employer told E.Y. to go home
because he thought he should be with his girlfriend. Defendant never picked
up his last paycheck, and the employer never heard from defendant again.
5
trial, defendant testified he made admissions during this interview because
Sergeant Bear had been insistent, he was scared, and he wanted to agree
with the police.
DISCUSSION
A. Alleged Prosecutorial Misconduct During Closing Argument
Defendant alleges the prosecutor committed misconduct during closing
argument in several ways. We address the claims below, but first set out
some general principles.
“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.” (People v.
Morales (2001) 25 Cal.4th 34, 44.) “Misconduct that does not constitute a
federal constitutional violation warrants reversal only if it is reasonably
probable the trial outcome was affected.” (People v. Shazier (2014) 60 Cal.4th
109, 127.) To prevail on a claim of prosecutorial misconduct based on
remarks to the jury, the defendant must show “ ‘[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. [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.’ ” (People v. Centeno (2014) 60
Cal.4th 659, 667 (Centeno).)
6
1. Argument that even if the jury believed defendant, he was
guilty
Defendant contends the prosecutor misstated the law by arguing that
even if the jury believed his testimony, he was still guilty. More specifically,
with regard to the offense of rape of an unconscious person (count I),
defendant claims the prosecutor wrongly told the jurors he would still be
guilty even if they believed his testimony that he thought the victim was
awake when they started having sex because her eyes were open and she
responded to his touch. Starting from the premise that an element of the
offense is the defendant’s knowledge that the victim was unable to resist
because she was unconscious of the nature of the act, defendant contends the
jurors should not have found him guilty if they believed his testimony that
the victim’s eyes were open and that she responded to his touch.
Defendant makes a similar argument concerning the charge of rape of
an intoxicated person (count II). Noting the offense requires proof that the
defendant knew or reasonably should have known that the effect of the
intoxicating substance prevented the victim from resisting, he highlights his
testimony that the victim walked, talked, and danced during the party before
she went to his bedroom. He also highlights that before having sex, she woke
up and began touching him, and then told him to stop. Because all these
actions that he observed “would have led a reasonable person to believe that
[the victim] was capable of consenting to intercourse” and “that alcohol did
not prevent her from resisting,” he argues the jurors should have found him
not guilty if they believed his testimony.
“As a general rule, ‘ “[a] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion, and on the same ground,
the defendant objected to the action and also requested that the jury be
admonished to disregard the perceived impropriety.” ’ ” (Centeno, supra, 60
7
Cal.4th at p. 674.) We excuse a defendant’s failure to do so only “if an
objection would have been futile or if an admonition would not have cured the
harm caused by the misconduct.” (Ibid.)
Here, defense counsel did not object to the portions of argument at
issue, and nothing in the record indicates that an objection would have been
futile or that an admonition could not have cured the alleged harm.
Defendant has forfeited review of this claim.
Anticipating this forfeiture, defendant posits defense counsel rendered
ineffective assistance. Specifically, defendant argues there was no rational
tactical reason for not objecting, and the failure to do so was prejudicial
because the prosecutor’s argument “allowed the jury to find [him] guilty on
an erroneous legal theory.” We are unpersuaded.
To demonstrate ineffective assistance, a defendant must show both that
counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms, and that the deficient performance was
prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
“A defendant who raises the issue on appeal must establish deficient
performance based upon the four corners of the record. ‘If the record on
appeal fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory
explanation, the claim must be rejected on appeal.’ ” (People v. Cunningham
(2001) 25 Cal.4th 926, 1003.)
In assessing whether defense counsel rendered deficient performance,
we first evaluate whether there was prosecutorial error or misconduct
necessitating an objection and admonition. While it is improper for a
prosecutor to misstate the law to the jury (Centeno, supra, 60 Cal.4th at
8
p. 666), a defendant who attacks the remarks of a prosecutor “must 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. [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.’ ” (Id. at p. 667.)
Here, the prosecutor never urged the jury to ignore any of the elements
of the offenses. Taken in context, the prosecutor’s argument properly focused
the jury’s attention on the elements of the charged offenses and reasonably
sought to counter defendant’s claim of innocence based on his testimony that
the victim’s eyes were open, she was responding, and she did not resist when
he took her clothes off.
As defendant points out, the prosecutor did in fact tell the jurors that
“even if you believe him, he’s still guilty of Count 1 and Count 2.” Reasonably
understood, however, the prosecutor was not encouraging the jurors to ignore
the elements of the offenses. Rather, the thrust of the prosecutor’s argument
for count I was that even if the jurors believed defendant’s testimony that the
victim’s eyes were open and she was responding, this should not impact their
assessment of the element of the offense requiring that the victim be “unable
to resist because she was unconscious of the nature of the act.” And later,
with regard to count II, the prosecutor was emphasizing that defendant’s
testimony did not undermine the evidence proving that defendant either
knew or reasonably should have known the effect of the alcohol on the victim
prevented her from resisting, because, despite his testimony that her eyes
were open and she was responding, he had no real reason to believe she was
9
capable of consenting or resisting, nor would a reasonable person entertain
such a belief.
In sum, we conclude no prosecutorial misconduct or error necessitating
an objection occurred. Having heard the trial court’s instructions as to the
elements of counts I and II,5 and given the context of the prosecutor’s
remarks, there is no reasonable likelihood the jurors believed they could
convict defendant even if they believed his testimony negated elements of the
charged offenses. While we could end our analysis here, we briefly add that
“ ‘[t]he decision facing counsel in the midst of trial over whether to object to
comments made by the prosecutor in closing argument is a highly tactical one
. . . .’ [citations], and ‘a mere failure to object to evidence or argument seldom
establishes counsel’s incompetence’ [citation].” (Centeno, supra, 60 Cal.4th at
p. 675.) In this case, the record is silent as to the reason for defense counsel’s
alleged omissions, and it cannot be said there could be no satisfactory
explanation. Counsel might reasonably have believed his own arguments,
coupled with the court’s instructions, could best counter the prosecutor’s
arguments. (People v. Frierson (1991) 53 Cal.3d 730, 749 [“[I]n the heat of a
trial, defense counsel is best able to determine proper tactics in the light of
the jury’s apparent reaction to the proceedings. The choice of when to object
is inherently a matter of trial tactics not ordinarily reviewable on appeal.”].)
In any event, defendant fails to establish prejudice resulting from
counsel’s alleged deficiency, i.e., “a ‘reasonable probability that, but for
5 As to count I, the record discloses the trial court correctly instructed
that the jury must find defendant “knew that the woman was unable to resist
because she was unconscious of the nature of the act.” As to count II, the
court correctly instructed that the jury must find defendant “knew or
reasonably should have known that the effect of an intoxicating substance
prevented the woman from resisting.”
10
counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” (Strickland, supra, 466 U.S. at p. 694.) The specific statements
during argument at issue were relatively brief; the court properly instructed
the jury as to the elements of counts I and II; and defense counsel offered
direct counterargument explaining the elements.6 Moreover, the court
explicitly instructed that if “the attorneys’ comments on the law conflict[ed]
with [the court’s] instructions,” the jury “must follow [the court’s]
instructions.” (People v. Osband (1996) 13 Cal.4th 622, 717 [“ ‘[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.’ ”].)
Additionally, this was not a close case and the evidence against
defendant was overwhelming. The victim testified, and other evidence such
as E.Y.’s testimony and the DNA evidence generally corroborated her
testimony.
Moreover, the evidence showed that defendant made a number of
damaging inculpatory statements. When E.Y. confronted defendant about
“abus[ing]” the victim, defendant did not deny the accusation; instead, he
apologized and told E.Y. that he was drunk. Defendant made more explicit
6 Consistent with the trial court’s instructions, defense counsel
emphasized the offense of rape of an unconscious person required that
defendant subjectively know the victim was unconscious. Similarly, defense
counsel emphasized the offense of rape of an intoxicated person required
evidence showing defendant subjectively knew, or reasonably should have
known, that alcohol prevented the victim from resisting. Defense counsel
also stated: “the burden is on the DA to prove to you that [defendant] did not
really and reasonably believe that [the victim] was capable of consent. If they
don’t meet to [sic] burden, you must find him not guilty.” Defense counsel
then went on to discuss why defendant could believe the victim was
consenting.
11
and damaging admissions during the pretext call with the victim.
Significantly, he admitted to the victim that “you woke up and said ‘Oh, no,’
that’s when I stopped and pulled out.” Defendant tried only once to claim he
did not penetrate the victim, but quickly capitulated when the victim pushed
back. Defendant also admitted that he fled from San Francisco to Fresno
knowing the police were looking for him. Then, when he was arrested three
years later, he again admitted having sex with the victim when she was
asleep.
Finally, defendant was the defense’s sole witness, and his testimony did
little to create a reasonable doubt. He testified he knew the victim was
drunk at the party and claimed he woke up next to her in his room. When he
touched her, she appeared to be awake and touched him back in response.
But defendant could not recall any details about how she allegedly touched
him. Though he initially testified he did not remember penetrating her,
eventually he testified that he did. Once she told him “no,” he pulled up his
pants and “got out of there” without asking why she suddenly wanted to stop.
He tried to explain his earlier incriminating statements to E.Y., to the victim
during the pretext call, and during the police interview, but his attempts to
justify his prior statements could easily be viewed as self-serving. On this
record, there is no reasonable probability that the result of the proceeding
would have been different had counsel objected to the portions of
prosecutorial argument at issue.
2. Appeals to sympathy and emotion
Defendant next contends that the prosecutor improperly appealed to
emotion and for victim sympathy, and that she invited the jurors to put
themselves in the victim’s shoes. The following are the challenged portions of
argument.
12
The prosecutor started her closing argument by stating: “Can you see
her? Can you see her in that room waking up to the defendant standing over
her, grasping her hips with himself fully inside of her? Can you see the look
of shock on her face when she wakes up to that? [¶] Can you see her and
hear her say, no, I don’t want this? And can you see the defendant pull up
his pants and run out of the room? Can you see her as the weight of what
just happened to her washed over her, and she pulls herself together, and the
reality that she had just been raped crashes down on her? [¶] Can you see
her trying to hold it together when [E.Y.] comes in the room? And can you
hear and see her say get me out of here? [¶] Six years. Six years, [the victim]
has been living with what happened to her that day. She has replayed it over
and over and over. Can you see her in bed that night, unable to sleep,
looking at her phone, trying to piece together the timeline of what happened.”
Shortly afterward, the prosecutor stated: “But if you remember what she told
you, what she told the police, what she told [E.Y.], if you remember those
things, then the six years of waiting will not be for nothing, and [the victim]
will finally be able to know that her rapist was held accountable.”
Near the end of her closing argument, the prosecutor said: “[The
victim] told you at the end of her testimony why she was here. She just
wants him to admit what he did. She has nothing to hide. The thing that
sticks with her is him hovering over her in between her legs, with his penis
inside of her, grabbing onto her hips. That’s the first thing that comes to her
mind when she thinks about that day. And it’s the thing that has stuck with
her as she’s tried to move on, as she’s tried to make sense of what happened
to her, as she looks town [sic] at her own baby girl and tries to recover from
that.”
13
“It has long been settled that appeals to the sympathy or passions of
the jury are inappropriate at the guilt phase of a criminal trial.” (People v.
Fields (1983) 35 Cal.3d 329, 362.) “[A]n appeal to the jury to view the crime
through the eyes of the victim is misconduct at the guilt phase of trial . . . .”
(People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) But even assuming the
cited portions of the prosecutor’s argument were improper, defendant lodged
no objection and made no request for an admonition.
Defendant suggests an objection would have been futile because the
trial court overruled relevance objections when the victim was asked how
thinking about and describing what happened to her made her feel. This is
unpersuasive. There is no reason to believe the court’s overruling of two
different objections raised during the victim’s earlier testimony might
portend the overruling of a prosecutorial misconduct objection during
argument and the refusal of an admonition. (See, e.g., People v. Seumanu
(2015) 61 Cal.4th 1293, 1339 (Seumanu).) We conclude that review of this
claimed error was forfeited.
As for defense counsel’s failure to object, defendant again has not
established either prong of an ineffective assistance claim. On the deficient
performance prong, even assuming the prosecutor made an improper appeal
to the sympathy or passions of the jury, defense counsel might reasonably
have believed he could best counter the argument—not by objecting, which
might appear insensitive or dismissive of the victim’s emotions—but through
his own argument. Notably, the trial court had instructed the jurors not to
allow bias or sympathy to influence their decision and cautioned that nothing
the attorneys said, including in closing arguments, is evidence. Coupled with
those instructions, defense counsel argued: “If you empathize with [the
victim’s] need for closure, that cannot erase the fact that on that night at a
14
critical moment, there was a big gap in her memory. She was for that
moment fully functioning, blackout drunk. And to this day, she still doesn’t
know it. Completely sure and totally wrong.” And defense counsel pointedly
reminded the jurors of their sworn oath to be fair and impartial, to presume
defendant innocent until proven guilty beyond a reasonable doubt: “Don’t let
your feelings influence your decision. You should critically analyze the DA’s
case with the voice of reason and no other voice. It’s not a competition of who
tips the scale. It’s not a gut feeling.” Based on the appellate record, we
cannot conclude counsel’s performance fell below professional standards.7
Defendant also fails to demonstrate prejudice. The prosecutor’s alleged
appeals to sympathy were a relatively brief part of her overall initial closing
argument, and we presume the jury followed the trial court’s instructions.
And as discussed, this was not a close case. We conclude there is no
reasonable probability the result of the trial would have been different but for
counsel’s failure to lodge an objection. (Strickland, supra, 466 U.S. at p. 694.)
3. Attacking defense counsel’s integrity
Defendant also claims the prosecutor attacked the integrity of defense
counsel and stated, or at least implied, that defendant and his counsel
fabricated the defense to deceive the jury and absolve defendant.
Near the end of her initial closing argument, the prosecutor said
defense counsel was going to try to explain away why defendant might not be
guilty and, “when you hear these things or something that sounds like these
things, what they really mean is something completely different. He’s going
7 Having reached this conclusion, we need not and do not address the
People’s alternative argument that the prosecutor’s argument was not error
or misconduct. We suggest no outcome as to the arguments we do not
address. This applies to the People’s alternative arguments regarding
defendant’s other claims, addressed below.
15
to package them nicely. He’s going to say them like the good guy, but it’s all,
every single one of them hits at the underpinnings of why it’s taken this long
to believe women who say that they’re raped. [¶] She came onto him. She
wanted it. It was a regrettable experience. She changed her mind, so she
made up the rape story. What that’s really saying is that she’s a ho. . . .
She’ll sleep with whoever, and she didn’t want to look bad, but that makes no
sense given the evidence that you’ve heard.”
During her rebuttal argument, the prosecutor indicated defense counsel
argued the jury should ignore the DNA evidence “because it validates and
confirms the direct testimony.” The prosecutor indicated defense counsel
made arguments to distract the jury from the evidence: “Talk about the
system. Talk about immigration. Talk about what’s at stake for [defendant].
Don’t pay attention to the evidence. That’s essentially what [defense counsel]
told you to do. He told you to disregard the oath you took.” (Italics added.)
The prosecutor also asserted E.Y. and the victim had no reason to lie and
“[t]he person who has a motive to lie here is the defendant. And he’s the only
one with all of the information. That’s how he knows what to lie about.”
Further, the prosecutor remarked: “They gave him opportunity after
opportunity to explain himself. And only now six years later, do we get a
fabricated story that would completely magically absolve him of any guilt. So
a witness’s testimony is only suspicious if there’s alcohol involved . . . .
[Defense counsel] said that.”
As with the preceding claims of prosecutorial misconduct, defendant
largely forfeited this claim of error by failing to make specific objections or
request admonitions. While counsel objected generally after the prosecutor
argued defense counsel “told you to disregard the oath you took” by stating
“improper argument,” she failed to specify the impropriety of the argument as
16
presented on appeal and to ask for an admonition.8 (People v. Pearson (2013)
56 Cal.4th 393, 425.) However, even if we were to overlook the lack of
objections or a more specific objection than the one made, we would reject the
claim of misconduct.
“ ‘ “A prosecutor commits misconduct if he or she attacks the integrity
of defense counsel, or casts aspersions on defense counsel.” ’ ” (Seumanu,
supra, 61 Cal.4th at pp. 1336–1337.) “The unsupported implication by the
prosecutor that defense counsel fabricated a defense constitutes misconduct.”
(People v. Bain (1971) 5 Cal.3d 839, 847.) “ ‘ “In evaluating a claim of such
misconduct, we determine whether the prosecutor’s comments were a fair
response to defense counsel’s remarks” [citation], and whether there is a
reasonable likelihood the jury construed the remarks in an objectionable
fashion [citation].’ [Citation.] ‘. . . 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.’ ” (Seumanu, at
p. 1337, italics added.)
Here, the prosecutorial comments complained of were largely fair
argument either in anticipation of or in response to the defense’s case.
Indeed, the prosecutor correctly anticipated defense counsel’s closing
argument that the victim consented. The remark that defense counsel was
going to package the defense in saying things “like the good guy,” was “clearly
recognizable as an advocate’s hyperbole,” not a personal attack on defense
counsel’s integrity. (People v. Sandoval (1992) 4 Cal.4th 155, 184.)
The prosecutor’s comment that defense counsel told the jurors to
“disregard the oath you took” appeared responsive to defense counsel’s
argument that the jury should essentially disregard the DNA evidence
8 The court overruled the objection.
17
because it was “totally useless” and “the only reason to put it on, it’s
sympathetic appeal.” It also appeared directed toward the defense’s
argument that the evidence of the victim’s genital injuries was “completely
useless.” That said, the prosecutor’s remark nevertheless seemed to
personally attack defense counsel, and the trial court should have sustained
counsel’s objection. (See ante, fn. 9.) All the same, this inappropriate
comment did not amount to prosecutorial misconduct because it cannot be
said to have “infect[ed] the trial with such a degree of unfairness as to render
the subsequent conviction a denial of due process” in violation of the federal
Constitution. (People v. Shazier, supra, 60 Cal.4th at p. 127.) Nor did it
involve “ ‘ “the use of deceptive or reprehensible methods to persuade the trial
court or the jury.” ’ ” (Ibid.) In any event, even assuming, generously, that
this comment was misconduct, it was harmless because it is not reasonably
probable that the trial outcome was affected by it. (Ibid.) The jurors were
instructed to decide the case based on the evidence presented, and were
cautioned that nothing the attorneys said, including in closing arguments, is
evidence. Moreover, as already discussed, the evidence of guilt in this case
was overwhelming. (See, e.g., Seumanu, supra, 61 Cal.4th at p. 1338.)
With regard to the contention that the prosecutor suggested
fabrication, we do not agree with defendant that the prosecutor improperly
accused both defendant and defense counsel of concocting defendant’s story.
The prosecutor never mentioned defense counsel when making the
challenged remarks and at various other points in her argument the
prosecutor clearly suggested defendant alone made up his story. For
example, the prosecutor said: “[Defendant is] the only one that says that he’s
drunk, and he’s the only one that says that she was awake. Because in his
mind those are the only two things that make him not a rapist. They’re the
18
most significant lies that he can say because in his mind, they absolve him.”
(Italics added.) Moreover, the prosecutor argued, “he’s just up here telling
you what he thinks you want to hear to absolve him of any guilt.” Considered
as a whole, the prosecutor’s argument contended that defendant alone
fabricated his story for trial. That is not misconduct. (People v. Dykes (2009)
46 Cal.4th 731, 773–774 [while a prosecutor cannot suggest “the jury draw
inferences concerning defendant’s guilt from conclusions regarding
defendant’s general bad character,” “ ‘[r]eferring to the testimony and out-of-
court statements of a defendant as “lies” is an acceptable practice so long as
the prosecutor argues inferences based on evidence rather than the
prosecutor’s personal belief resulting from personal experience or from
evidence outside the record’ ”]; see People v. Turner (2004) 34 Cal.4th 406,
430 [“ ‘The prosecutor is permitted to urge, in colorful terms, that defense
witnesses are not entitled to credence [and] to argue on the basis of inference
from the evidence that a defense is fabricated . . . .’ ”].)
Defendant contends “[e]veryone in the courtroom knew that [he] was
limited intellectually,” so the prosecutor was clearly implying that he could
only make up his defense with “the guiding hand of counsel.” In support, he
points to a jury deliberation note, asking if the jurors could consider
defendant’s intellect or their perceptions of his intellect. This is speculative
and unpersuasive. The note does not reveal what anyone thought of
defendant’s intellect, much less support that “everyone” thought he was so
intellectually limited that he could not have fabricated the story he told on
the stand on his own. Defendant has failed to show misconduct based on the
cited remarks.
Because there was no misconduct, prejudicial or otherwise, defense
counsel did not render ineffective assistance in failing to object to the
19
challenged portions of the prosecutor’s argument. (People v. Sanchez (2019)
38 Cal.App.5th 907, 915.) Nor is reversal warranted based on the one
instance in which the trial court should have sustained counsel’s objection to
the prosecutor’s assertion that defense counsel was urging the jurors to
disregard their oath.
4. Pretrial silence
Defendant’s last claim of misconduct is that the prosecutor improperly
remarked on his pretrial silence, as follows. First, while discussing
defendant’s testimony that the victim responded to his touch, the prosecutor
said: “He never says that when he’s talking to [the victim]. He never says I
thought you were into it. He never says it until he’s up here, and he’s had six
years to think about this multipart lie that absolves him magically.” Second,
the prosecutor argued that defendant was “the only one that ever says that it
happened, and he waits six years, six years he waits to tell it.” Third, the
prosecutor stated: “[The police officers who interviewed him] gave him
opportunity after opportunity to explain himself. And only now six years
later, do we get a fabricated story that would completely magically absolve
him of any guilt.”
Again, the claim is forfeited because defendant neither objected nor
requested admonitions. In any case, we cannot agree the prosecutor
improperly commented on defendant’s right to silence, and consequently,
cannot conclude his ineffective assistance of counsel claim has merit.
In petitioner’s view, the prosecutor’s arguments were improper under
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) and violated his right to remain
silent after appointment of counsel. In this regard, defendant relies
principally on People v. Belmontes (1988) 45 Cal.3d 744, wherein the court
commented that, on the one hand, the prosecutor’s questions on cross-
20
examination could properly have served to impeach the defendant by
“point[ing] out the inconsistencies between defendant’s extrajudicial
statements and trial testimony,” but which “[a]s worded . . . just as readily
could have elicited defendant’s testimony that he made no statements about
the crime between his third jailhouse statement and trial, and thus
technically ran afoul of Doyle, supra, 426 U.S. 610.” (Belmontes, at pp. 785–
786, first italics added.) For the reasons below, no error appears.
As the California Supreme Court explains, Doyle held it was a violation
of due process and fundamental fairness to use the postarrest silence of a
defendant following the receipt of Miranda9 warnings to impeach the
defendant’s trial testimony.10 (People v. Collins (2010) 49 Cal.4th 175, 203
(Collins).) “An assessment of whether the prosecutor made inappropriate use
of defendant’s postarrest silence requires consideration of the context of the
prosecutor’s inquiry or argument. [Citation.] A violation of due process does
not occur where the prosecutor’s reference to defendant’s postarrest silence
constitutes a fair response to defendant’s claim or a fair comment on the
evidence.” (People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) “ ‘[A]
prosecutor is given wide latitude to vigorously argue his or her case and to
make fair comment upon the evidence, including reasonable inferences or
deductions that may be drawn from the evidence.’ ” (People v. Dykes, supra,46 Cal.4th 731, 768.)
For example, in Anderson v. Charles (1980) 447 U.S. 404, a defendant
was charged with murder after being found in possession of the victim’s car.
9 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
10 The People contend the rule in Doyle only applies to the impeachment
of a testifying witness. We will assume, for the sake of argument, that Doyle
error can apply to a prosecutor’s closing argument. (Seumanu, supra, 61
Cal.4th at p. 1334 & fn. 10.)
21
(447 U.S. at p. 404.) During a police interview, he told the police he obtained
the car from one place, but he testified at trial he obtained it from another
place. (Id. at p. 405.) The prosecutor asked why he did not say the same
thing about where he got the car when he was arrested, and if this was a
“ ‘recent fabrication.’ ” (Id. at pp. 405–406.) The high court found no
violation of Doyle: “The quoted colloquy, taken as a whole, does ‘not [refer] to
the [defendant’s] exercise of his right to remain silent; rather [it asks] the
[defendant] why, if [his trial testimony] were true, he didn’t tell the officer
that he stole the decedent’s car from the tire store parking lot instead of
telling him that he took it from the street.’ [Citation.] . . . The questions
were not designed to draw meaning from silence, but to elicit an explanation
for a prior inconsistent statement.” (Anderson, at pp. 408–409.)
In Collins, the defendant presented an alibi defense at trial that he
never mentioned before, despite making several statements to the police.
(Collins, supra, 49 Cal.4th at p. 199.) The prosecutor questioned why the
defendant never mentioned his alibi before, and during closing argument,
asserted that the defendant’s reasons for not telling anyone about his alibi
were “unbelievably ludicrous” and “preposterous.” (Id. at pp. 200–202.) The
California Supreme Court found no violation of the defendant’s right to
postarrest silence under Doyle, explaining: “Defendant was not ‘silent’ on his
whereabouts at the time of the murder; he chose to provide varied
explanations that differed from his trial testimony.” (Collins, at pp. 203–
204.) The court also held the prosecutor properly focused on the
inconsistencies in defendant’s statements rather than a failure to reveal his
alibi. In the court’s words, “the prosecutor properly questioned defendant
about the different explanations he gave [the police]. . . . [T]he prosecutor’s
questions regarding defendant’s failure to come forward earlier with his alibi
22
were asked in the context of those interview statements. The questions were
a legitimate effort to elicit an explanation as to why, if the alibi were true,
defendant did not provide it earlier. As such, neither the questions nor the
prosecutor’s remarks in closing argument were ‘designed to draw meaning
from silence.’ ” (Id. at p. 204.)
The same is true here. Considered in context, the prosecutor’s remarks
during argument were not meant to draw meaning from any post-Miranda or
post-appointment-of-counsel invocation of silence. Defendant made
statements prior to trial that directly contradicted his trial testimony, and
the record makes reasonably clear that the prosecutor meant to impeach
defendant’s trial testimony and credibility with his earlier conflicting
statements. (See, e.g., Anderson v. Charles, supra, 447 U.S. at pp. 408–409;
Collins, supra, 49 Cal.4th at p. 204.) Indeed, the law is settled that it is
“within the broad bounds of permissible argument to suggest that defendant’s
trial testimony . . . , far from representing the truth, differed from his prior
statements and was framed to coincide with an imagined defense.” (People v.
Dykes, supra, 46 Cal.4th at p. 769.) Because we conclude there was no
prosecutorial misconduct, counsel’s failure to object was not deficient. (People
v. Sanchez, supra, 38 Cal.App.5th at p. 915.)
Finally, even assuming there was error and no rational purpose for not
objecting to the challenged portions of argument, no prejudice appears.
(Strickland, supra, 466 U.S. at p. 694.) Such arguments were brief and,
again, the evidence of guilt overwhelming. We would reach the same
conclusion even under the Chapman standard applicable to Doyle errors.
(People v. Thomas (2012) 54 Cal.4th 908, 936–937.)
23
5. Cumulative Prejudice
Defendant claims reversal is warranted because of cumulative
prejudice from the claimed prosecutorial misconduct and counsel’s failure to
object and request admonitions. Because we have found defendant forfeited
the claims of misconduct and has not established ineffective assistance, we
reject this claim as well.
B. Ineffective Assistance and Miranda
Next, defendant argues defense counsel was ineffective in failing to
present evidence showing that he was not fully informed of his rights under
Miranda, supra, 384 U.S. 436, and that his purported waiver of those rights
was not knowing and intelligent. We set out some additional facts before
analyzing this claim.
1. Additional Background
On February 4, 2020, defense counsel moved to exclude defendant’s
police interview statements on the ground they were obtained in violation of
Miranda. At the hearing to determine admissibility, Sergeant Bear testified
that defendant appeared to only understand Spanish, so she asked Sergeant
Kenney to assist her. Sergeant Kenney testified that Spanish is her first
language and that she is a certified Spanish translator for the San Francisco
Police Department. She has been so certified since around 2005, though
there was gap in her certification from 2014 to 2018, which included the date
of defendant’s interview. Sergeant Kenney indicated her human resources
representative notified her of the gap and the need for retesting because of
“some discrepancy on the list,” but she was never told she needed to recertify
because of a deficiency in her translation skills.
Sergeant Kenney testified she read defendant his Miranda rights
directly from a department-issued Miranda card in Spanish. While Sergeant
24
Kenney was on the stand, the recording of her “Mirandizing” defendant was
played and the transcript provided to her. She affirmed that the portion of
the transcript was accurate in terms of the Spanish transcription and the
accompanying English translation. This portion of the transcript was
admitted into evidence, as was the recording of the interview.
Defense counsel indicated at the hearing that his intended witness
Ricardo Winkel, Ph.D., a psychologist, was unavailable, so the court
continued the hearing. Two days before the continued hearing date, the
defense provided Dr. Winkel’s report to the prosecutor.
Among other things, Dr. Winkel reported that defendant said he had
not understood his Miranda rights and, had he understood, he would have
asked for an attorney at the time of the interrogation. Dr. Winkel, a native
and fluent Spanish speaker, stated his review of a transcript of the interview
showed “key errors” in how Sergeant Kenney conveyed defendant’s Miranda
rights to him. As relevant here, Dr. Winkel stated this transcript showed
that when telling defendant that anything he said could be used against him
in court, Sergeant Kenney allegedly used the terms “ ‘tribulum’ ” and
“ ‘tribunum’ ”—which have no meaning in “any version of Spanish”—instead
of “tribunal.” Moreover, when informing defendant that if he could not afford
an attorney, one would be provided to him before questioning, Sergeant
Kenney used the words “contrar” and “se-semos”—again, words without
meaning—but Dr. Winkel indicated Sergeant Kenney may have meant
“contratar,” (to hire) and “hacemos las preguntas,” (ask the questions),
respectively. Dr. Winkel concluded that because of these alleged errors,
defendant did not comprehend his Miranda rights.
Dr. Winkel also stated he administered several psychological tests, one
of which showed that defendant is “prone to offering false statements when
25
intimidated or confronted with authority.” Dr. Winkel opined that defendant
“is a highly suggestible individual with a propensity to conform to authority
and offer false statements in a custodial interrogation.” Further, he stated,
“[w]hile there was no indication that the investigators applied improper
pressure on [defendant], the misinterpretation of his Miranda rights in
conjunction with his personal attributes (i.e., below-average intellectual
ability, passive-dependent personality traits, vulnerability to offering false
statements) may have compromised the validity of his confession.”
The prosecutor filed a motion to preclude Dr. Winkel from testifying
and to admit defendant’s statements during his police interview. The
prosecutor argued nothing was presented to establish Dr. Winkel’s
qualifications to administer the psychological tests to defendant or interpret
their results. Nor was there any showing that such tests were regularly
relied upon by experts in the field. Finally, the prosecutor argued that Dr.
Winkel’s opinions were conclusory and general and that the defense untimely
produced the report.
At the continued hearing, defense counsel stated he would not be
calling Dr. Winkel, after all, and had no evidence to present. Defense counsel
did note his belief that the Miranda admonition was incorrectly given in
Spanish, and that he would have his research team look into the matter and
provide additional briefing if necessary. 11 The trial court denied defendant’s
motion, finding that defendant was properly advised of and waived his
Miranda rights, and that the defense had not presented any evidence
11 Jury selection in the case occurred on February 4–6, 2020, with opening
statements scheduled for February 24, 2020. According to the prosecutor, the
defense had the Miranda statement since defendant’s arraignment in April
2017.
26
countering Sergeant Kenney’s testimony that the translation of the recorded
Miranda advisement was accurate.
2. Discussion
Defendant contends defense counsel was ineffective by failing to
present testimony from Dr. Winkel or some other qualified Spanish speaker
to show that defendant was not properly advised of his Miranda rights and
thus did not knowingly and intelligently waive his rights.
Defendant fails to establish deficient performance. First, defendant’s
argument on appeal relies on Dr. Winkel’s report that a transcript showed
Sergeant Kenney essentially misspoke or mispronounced three words when
giving the Miranda advisement: she said “ ‘tribulum’ ” and “ ‘tribunum’ ”
instead of “tribunal,” and she said “contrar” and “se-semos” when she may
have meant “contratar” and “hacemos las pruguntas,” respectively. Based on
these perceived errors, Dr. Winkel opined that defendant did not knowingly
and intelligently waive his rights. But that opinion is unsupported and
misses the mark.
In assessing the sufficiency of Miranda warnings, “[t]he essential
inquiry is simply whether the warnings reasonably “ ‘ “[c]onvey to [a suspect]
his rights as required by Miranda.” ’ ” (People v. Wash (1993) 6 Cal.4th 215,
236–237; California v. Prysock (1981) 453 U.S. 355, 359 [no “talismanic
incantation” is required when relaying one’s Miranda rights].) Even
assuming Sergeant Kenney mispronounced or misspoke the aforementioned
words, there is nothing in the record indicating that the advisements, taken
as a whole, failed to reasonably convey defendant’s Miranda rights to him.
Defendant himself never so testified. Indeed, defendant himself affirmed,
when asked by Sergeant Kenney after each advisement, that he understood
what she was saying. Sergeant Kenney herself testified that Spanish is her
27
first language and that the English translations of her advisements were
accurate. After the February 13, 2020 hearing, defense counsel also never
pursued the matter further, despite indicating he was going to have his
research team look into it and submit additional briefing if an issue arose.
Even assuming defense counsel could have proven a Miranda violation
and barred its presentation as part of the prosecution’s case-in-chief, a
statement obtained in violation of Miranda can still be presented during
cross-examination as impeachment. (Harris v. New York (1971) 401 U.S. 222,
225–226; People v. Hoyt (2020) 8 Cal.5th 892, 936.) Considering the strength
of the prosecution’s case, and defendant’s defense that the victim was awake
and consented to sex, defendant had to testify in order to get his defense
before the jury. This, in turn, would have led to the admissibility of the
police interview as impeachment. Knowing this, defense counsel might
reasonably have figured that the jury would ultimately hear defendant’s
interview statements, and so decided to focus on arguing that defendant
made untrue admissions because he was afraid of the police. Indeed, defense
counsel did make this argument. For instance, seizing on defendant’s
statement during the interview that he wore a condom, defense counsel
pointed out this was impossible given the prosecutor’s DNA evidence which
showed he ejaculated inside the victim. Defense counsel claimed defendant
made this and other untrue admissions—both during the interview and
pretext call—due to fear of the police.
We note the admission of the police interview as impeachment evidence
would have entitled the defense to a limiting instruction that such evidence
could be used only to assess defendant’s credibility rather than as
substantive evidence of guilt. (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 62–63.) But counsel could reasonably have believed that fighting
28
the admission of the interview statements as part of the People’s case-in-chief
would provide only marginal benefit in this particular case, and that the
better tactic would be to focus on using the admitted police interview to argue
that defendant made untrue admissions.
Even assuming defense counsel performed deficiently, defendant
cannot establish prejudice. The admissions made to the police were
damaging, but the jury heard that defendant made other extremely
damaging admissions during the recorded pretext call with the victim and
that he never denied E.Y.’s accusation that he “abused” the victim. Even if
the police interview had been relegated to consideration for impeachment
purposes, the fact that defendant admitted to the crime three years after
making similar admissions during the pretext call would have severely
damaged the credibility of his testimony at trial, which his defense hinged on.
On this record, there is no reasonable probability that the jury would have
reached a different conclusion but for counsel’s alleged deficiency.
C. Sufficiency of the Evidence
Finally, defendant contends there is insufficient evidence to support the
convictions. With regard to his conviction for rape of an unconscious person,
he claims the record does not establish that the victim “was unable to resist
because she was unconscious of the nature of the act or was unaware that the
act occurred or was occurring.” He contends the victim “was aware of the
nature of the act as it occurred and instantly protested.” Additionally, he
claims her testimony “was not substantial.” We are unpersuaded.
“In assessing the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value such that a
reasonable trier of fact could find the [minor] guilty beyond a reasonable
29
doubt. [Citations.] Reversal on this ground is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Rape of an unconscious person is an act of sexual intercourse
accomplished against a person who is not the perpetrator’s spouse and who
“is at the time unconscious of the nature of the act, and this is known to the
accused.” (§ 261, subd. (a)(4).) In this context, “ ‘unconscious of the nature of
the act’ means incapable of resisting because the victim meets any one of the
following conditions: [¶] (A) Was unconscious or asleep. [¶] (B) Was not
aware, knowing, perceiving, or cognizant that the act occurred.” (Ibid.) “[A]
victim need not be totally and physically unconscious in order for the statute
. . . to apply.” (People v. Ogunmola (1987) 193 Cal.App.3d 274, 279.)
In this case, the evidence amply shows that defendant penetrated the
victim while she was unconscious of the nature of the act because she was
asleep. The victim testified that she woke up to defendant penetrating her.
She testified upon waking, she said “no,” and defendant pulled out and left,
but her vagina was “very wet,” as if he ejaculated. There was evidence that
defendant’s DNA was on the exterior and interior of the victim’s vagina. And
during the pretext call, defendant admitted he penetrated the victim while
she was sleeping. The facts here bear no resemblance to those in People v.
Lyu (2012) 203 Cal.App.4th 1293, which defendant relies on. (Lyu, at
pp. 1296, 1301–1302.)
As for the charge of rape of an intoxicated person, defendant contends
the record does not establish that the victim was so intoxicated she could not
give legal consent. He notes the victim testified she was not feeling the
effects of the alcohol when she awoke, and the evidence showed she walked
and danced without losing her balance, talked without slurring, remembered
30
what occurred, dressed herself, told defendant “no,” and told E.Y. she wanted
to leave. Defendant claims this shows the victim “possessed sufficient mental
capacity to give legal consent despite her earlier drinking.” Again, we are
unpersuaded.
Rape of an intoxicated person is an act of sexual intercourse
accomplished against a person who is not the perpetrator’s spouse who is
“prevented from resisting by any intoxicating or anesthetic substance, or any
controlled substance, and this condition was known, or reasonably should
have been known by the accused.” (§ 261, subd. (a)(3).) “[T]he statutory
requirement that the victim was prevented from resisting by the intoxicating
or anesthetic or controlled substance has been interpreted to mean that the
victim was ‘not capable of giving legal consent because of intoxication.’ ”
(People v. Lujano (2017) 15 Cal.App.5th 187, 193.) “Legal capacity is the
ability to exercise reasonable judgment, i.e., to understand and weigh not
only the physical nature of the act, but also its moral character and probable
consequences.” (People v. Giardino (2000) 82 Cal.App.4th 454, 466.)
Here, there was evidence that the victim, a fairly small person, drank
four to five beers and two shots of tequila in the span of about four hours.
She was not very used to drinking, and had drank tequila only once or twice
before. She testified she felt dizzy and intoxicated after drinking and by
“4:00 in the afternoon, I felt like I was asleep.” She indicated she did not, in
fact, consent to the intercourse; she woke up to it.
That there may have been evidence tending to support defendant’s
claim that the victim “possessed sufficient mental capacity to give legal
consent despite her earlier drinking” is of no moment. The bottom line is that
substantial evidence supports the jury’s ultimate conclusion that the victim
was incapable of exercising reasonable judgment and consenting to sex.
31
D. Cumulative Error and Prejudice
Defendant claims reversal is warranted because of cumulative
prejudice from the alleged prosecutorial misconduct and defense counsel’s
alleged ineffective assistance. Although we have assumed error when the
prosecutor, without objection, appeared to appeal to juror sympathy and
emotion, and when the prosecutor made a comment that appeared to attack
the personal integrity of defense counsel, defendant fails to demonstrate any
attendant prejudice or ineffective assistance of counsel, and such errors were
cumulatively harmless under any standard especially in light of the
overwhelming evidence of his guilt. (See parts A.2 and A.3, ante; People v.
Williams (2009) 170 Cal.App.4th 587, 646; People v. Woods (2006) 146
Cal.App.4th 106, 117.)
DISPOSITION
The judgment is affirmed.
32
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A160101/The People v. Enrique Saucedo-Zepeda
33