People v. Swogger CA4/1 ( 2024 )

Filed 10/16/24 P. v. Swogger CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082236
Plaintiff and Respondent,
v. (Super. Ct. No. FWV18002033)
CHARLES CALVIN SWOGGER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, John Nho Trong Nguyen, Judge. Affirmed.
Benjamin Kington, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Robin Urbansky and Namita Patel,
Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Charles Calvin Swogger of committing forcible lewd
acts upon a child (Pen. Code,1 § 288, subd. (b)(1); counts 1 and 2), aggravated
1 Undesignated statutory references are to the Penal Code.
sexual assault of a child (§ 269, subd. (a)(5); counts 3 and 4), sexual
penetration by foreign object of a minor age 14 or older (§ 289, subd. (a)(1)(C);
count 5), and forcible rape of a minor age 14 or older (§ 261, subd. (a)(2);
count 6). As to each count, it found true allegations that he had been
convicted of committing a lewd act upon a child (§ 288, subd. (a)) within the
meaning of the “Three Strikes” law (§§ 1170.12, subds (a)-(d); 667, subds. (b)-
(i)), and he was a habitual offender (§ 667.71).
The court sentenced Swogger to an indeterminate term of 300 years to
life: 25 years doubled to 50 years for each of the six counts.
Swogger contends: (1) The court erroneously admitted into evidence
the testimony of his stepdaughter under Evidence Code section 1108; (2) the
prosecutor committed misconduct by disparaging defense counsel during
closing arguments, and defense counsel provided ineffective assistance by
failing to object to those arguments; (3) the court erroneously found that
counts 5 and 6 were separate crimes for sentencing purposes and (4) it
erroneously awarded him zero conduct credits. The People concede and we
agree that the last contention has merit. Accordingly, we modify the
judgment and as modified, affirm it.
FACTUAL AND PROCEDURAL BACKGROUND
Swogger was married to Jane Doe’s mother, and started living with
them in Fontana, California when Doe was approximately 10 or 11 years old.
As to counts one and two, Doe testified that Swogger grabbed and kissed her
face and forcefully kissed her on the mouth on approximately ten occasions
when they were alone.
As to counts 3 and 4, Doe testified that when her family moved to
Rialto, California, she was under the age of 14. There, Swogger digitally
penetrated her vagina for approximately 10 minutes. He repeated that
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action on five to 10 separate occasions. Swogger told her not to tell anyone
about his actions.
As to counts 5 and 6, Doe testified that on one occasion, she was on the
couch at home and wearing a T-shirt and underwear. Swogger told her,
“We’re going to have some fun.” He sat down on the couch and reached
towards her vagina. She responded, “No.” He grabbed her wrist and
forcefully held it down, took off her underpants and began to touch her
vagina with his hand. Afterwards, he let go of her wrist and proceeded to
take off his pants. She started crying and covering her eyes. He moved her
legs, and forcefully pushed her knees towards her chest. He next rubbed his
penis on the outside of her vagina, inserted it inside of her vagina, and
roughly thrusted in and out for around ten minutes. Afterwards, he put his
clothes back on and left the room.
Over Swogger’s objection, his other stepdaughter testified that he
touched her inappropriately when she was approximately eight or nine years
old. As to that incident, Swogger pleaded no contest to committing a lewd
and lascivious act on a child under section 288, subdivision (a).
DISCUSSION
I. Propensity Evidence
Swogger contends the court’s admission of his other stepdaughter’s
testimony prejudicially violated his due process rights to a fair trial under the
federal Constitution. He argues that Evidence Code section 1108, which
permits the trier of fact to consider evidence of uncharged sexual offenses as
evidence of a defendant’s disposition to commit such crimes, is
unconstitutional. He concedes the California Supreme Court has rejected
such a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 912,
but raises the issue to preserve it for federal review. In light of Falsetta, we
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must reject this claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.)
II. Prosecutorial Misconduct Claims
Swogger contends the prosecutor committed misconduct during her
closing rebuttal arguments by improperly suggesting defense counsel was
personally dishonest, therefore depriving him of his due process right to a fair
trial. He argues that even if we found he forfeited his prosecutorial error
claim by failing to object, we should exercise our discretion to address the
matter on the merits. He alternatively contends his counsel provided
ineffective assistance by failing to object.
A. Background
Swogger references three specific statements the prosecutor made
during her rebuttal argument. First, the prosecutor argued, “Let’s talk about
some of these things that defense counsel said and the way he said them and
the way he said things in trial too. Okay. You all are tasked with deciding
what the truth is. You are the finders of fact. It is up to you to consider
when there were attempts by the defense to try to keep the truth from you.
Distortions of the truth, making you think that the truth isn’t plainly what it
is as it is stated in the record.”
Second, the prosecutor told the jury: “You really should be questioning
why the defense keeps trying to mislead you. It’s inviting you to speculate
and you have a closed universe of evidence, ladies and gentlemen. Of course
the defense wants you to speculate about all sorts of things. They want you
to fall down the rabbit hole, to follow what we call the red herring, right?
Red herring being a red sort of bird that doesn’t actually exist. They want
you caught up in all of those extraneous details that don’t actually matter
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because everything else presented in this case is a mountain of evidence
against his client.”
Finally, the prosecutor argued: “This is one of my favorite parts of the
trial where the defense, again, cherry-picked the transcript, hiding the truth
from you all, trying to make you believe that Jane Doe only testified that . . .
the fingers in the vagina only happened one time. That’s not the truth.
When she was able to refresh her recollection as to the entire transcript on
that particular issue, she clarified, well, it’s one specific instance that I can
recall the details; right. But she knows it happened more than one time. She
said it happened more than one time at the prelim[inary hearing], and she
said it in her testimony. And as I said, she is consistent on all of the major
details and many of the small ones as well.”
B. Prosecutorial Misconduct—Legal Principles
To preserve a claim of prosecutorial error, a “defendant must generally
object ‘in a timely fashion—and on the same ground,’ and must ‘request[ ]
that the jury be admonished to disregard the impropriety.’ ” (People v.
Miranda-Guerrero (2022) 14 Cal.5th 1, 29.) As Swogger did not object to any
portion of the prosecutor’s rebuttal argument and he did not request an
admonishment, he has forfeited his claims of prosecutorial error.
While we do have the discretion to excuse forfeiture, such discretion is
to be exercised sparingly. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Moreover, the forfeiture requirement serves an important purpose.
Defendants must raise prosecutorial error claims during trial, where it can be
remedied at once in a far more efficient and effective manner than on appeal.
(See People v. Peoples (2016) 62 Cal.4th 718, 801 [reason for the forfeiture
rule is that the trial court should be given the opportunity to correct the
misconduct of counsel and thus, if possible, prevent the harmful effect on the
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minds of the jurors].) We decline to exercise our discretion to excuse
Swogger’s failure to object because as we set forth below, even if he had
objected, it is not reasonably probable he would have received a different
result.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant
must show (1) counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficient
performance prejudiced the defendant. (Strickland v. Washington (1984) 466
U.S. 668, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To
demonstrate prejudice, a defendant must show a reasonable probability that
the defendant would have achieved a more favorable result had counsel’s
performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma,
supra, at pp. 217-218.)
The prosecution bears the burden of proving all elements of the crimes
charged beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.)
“When attacking the prosecutor’s remarks to the jury, the defendant 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.’ ” (People
v. Centeno (2014) 60 Cal.4th 659, 667.)
A prosecutor has wide latitude during closing argument and may argue
the case vigorously as long as the argument amounts to fair comment on the
evidence and the reasonable inferences or deductions therefrom. (People v.
Samayoa (1997) 15 Cal.4th 795, 841.) A prosecutor may give his or her
opinion on the state of the evidence, vigorously attack the defense case, and
focus on the deficiencies in defense counsel’s tactics and factual account.
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(People v. Redd (2010) 48 Cal.4th 691, 735.) “A prosecutor commits
misconduct if he or she attacks the integrity of defense counsel, or casts
aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832.)
“[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. Samayoa, supra, 15 Cal.4th at p. 841.)
Appellate courts “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.
(People v. Dykes (2009) 46 Cal.4th 731, 771-772.) An appellant “must show a
reasonable likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.” (Id. at p. 771.)
Here, the challenged statements by the prosecutor, viewed in context,
merely emphasized that the evidence of Swogger’s guilt was overwhelming,
and that jurors should rely on the truth as stated in the record, and not
become distracted by defense counsel’s irrelevant arguments that tended to
obfuscate the truth. Moreover, the prosecutor cautioned the jury that defense
counsel wanted it to “speculate about all sorts of things.” The arguments
were not improper. The California Supreme Court in People v. Medina (1995)
11 Cal.4th 694 stated it was unobjectionable for the prosecutor to state that
“ ‘any experienced defense attorney can twist a little, poke a little, try to draw
some speculation, try to get you to buy something.’ ” (Id. at p. 759.)
Similarly, the court concluded a prosecutor’s comments “concerning defense
counsel’s speculation ‘[did] not amount to a personal attack on counsel’s
integrity.’ [Citations.] [Citation.] In addition, these comments focused the
jury upon the evidence rather than distracting it from its task.” (People v.
Redd, supra, 48 Cal.4th at p. 735.) The same analysis applies here.
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Additionally, the court instructed the jury on how to interpret the
evidence and distinguish evidence from counsels’ arguments: “You must
decide what the facts are. It is up to all of you, and you alone to decide what
happened, based only on the evidence that has been presented to you in this
trial.” The court further explained that “ ‘[e]vidence’ is the sworn testimony
of witnesses, the exhibits admitted into evidence, and anything else I told you
to consider as evidence. [¶] Nothing that the attorneys say is evidence. In
their opening statements and closing arguments, the attorneys discuss the
case, but their remarks are not evidence. Their questions are not evidence.
Only the witnesses’ answers are evidence.” The court further instructed the
jury: “The court reporter has made a record of everything that was said
during the trial. If you decide that it is necessary, you may ask that the court
reporter’s record be read to you. You must accept the court reporter’s record
as accurate.” We presume a jury understands and follows the court’s
instructions, and treats the court’s instructions as a statement of the law by a
judge, and the prosecutor’s comments as words spoken by an advocate.
(People v. Cortes (2022) 75 Cal.App.5th 198, 205.)
Swogger relies on People v. Seumanu (2015) 61 Cal.4th 1293, in which
the California Supreme Court concluded: “The prosecutor thus committed
misconduct in closing argument in two ways: she implied defense counsel
knew his client was guilty, and that counsel ‘put forward’ a sham defense,
i.e., one he knew was false. Because defendant did not interpose timely and
specific objections to the improper argument, the errors were not preserved
for appeal. But even had the claims been preserved, reversal would not be
required because these two instances of improper argument, considered
together, could not have prejudiced defendant. As noted earlier, there was
strong evidence of defendant’s guilt[.]” (Id. at p. 1338.) We conclude that
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Swogger’s reliance on this case is misplaced, as the challenged statements
here were not as egregious or disparaging of defense counsel as those in
Seumanu. Moreover, even if defense counsel had preserved his claims for
appeal, the prosecutor’s arguments would not have required reversal in light
of the substantial evidence that Doe provided supporting each conviction. “A
substantial evidence inquiry examines the record in the light most favorable
to the judgment and upholds it if the record contains reasonable, credible
evidence of solid value upon which a reasonable trier of fact could have relied
in reaching the conclusion in question. . . . Even when there is a significant
amount of countervailing evidence, the testimony of a single witness that
satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell
(2007) 41 Cal. 4th 1038, 1052.)
III. Counts 5 and 6
Swogger contends no substantial evidence supports the court’s finding
that, under section 667.6 subdivision (d), he committed the count 5 and 6
crimes on separate occasions for sentencing purposes.
A. Background
At sentencing, the prosecutor argued the court should sentence
Swogger consecutively on the count 5 digital penetration conviction and the
count 6 forcible rape conviction because each incident was separate. She
explained that Swogger first digitally penetrated Doe’s vagina. After he did
that, he removed his pants, removed his belt, and pushed Doe’s legs up
towards her shoulder as she covered her face with her arms and cried. After
that, Swogger inserted his penis in her vagina and forcibly raped her. The
prosecutor asserted that Swogger could not accomplish the two crimes at the
exact same time, and he had sufficient time following the digital penetration
to reflect before he engaged in the forcible rape.
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Defense counsel argued there was only one continuous incident that
occurred on the same occasion, pointing out Swogger did not leave the room
and return in between the acts. He therefore argued for concurrent
sentences.
The trial court ruled that each act was separate: “The first act was
digital penetration, but the second followed by a breakdown in time for him
to do the things that he did in terms of raising the legs and whatnot.”
Relying on People v. Jimenez (2002) 99 Cal.App.4th 450 and People v.
Harrison (1989) 48 Cal.3d 321, it sentenced Swogger consecutively on the two
crimes. It ruled this sentence also was appropriate under California Rules of
Court, rule 4.425: “The crimes and the objective were predominantly
independent and distinct of each other.” It separately found that California
Rules of Court, rule 4.426 required it to impose a full consecutive term in
each violent sex offense committed on separate occasions.
B. Legal Principles and Analysis
Section 667.61 mandates consecutive sentences for each conviction of
forcible lewd conduct upon a child under section 288, subdivision (b) if the
offenses “involve[d] the same victim on separate occasions as defined in
subdivision (d) of Section 667.6.” (§ 667.61, subds. (c)(4), (i); People v. Lopez
(2022) 76 Cal.App.5th 287, 291.) Section 667.6 subdivision (d)(2) provides
that the court shall consider whether “the defendant had a reasonable
opportunity to reflect upon the defendant’s actions and nevertheless
resumed.” The standard is broad and does not require an obvious break in
the defendant’s behavior or control over the victim. (People v. Jones (2001) 25
Cal.4th 98, 104.) “Once a trial judge has found under section 667.6,
subdivision (d), that a defendant committed offenses on separate occasions,
we may reverse only if no reasonable trier of fact could have decided the
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defendant had a reasonable opportunity for reflection after completing an
offense before resuming his assaultive behavior.” (People v. Garza (2003) 107
Cal.App.4th 1081, 1092.)
Applying this deferential standard, we conclude the trial court could
reasonably decide to sentence Swogger separately on count 5 (digital
penetration of Doe’s vagina) and count 6 (forcible rape), based on its
conclusion Swogger had sufficient time and opportunity to reflect on his
conduct between acts but opted to continue with the rape, notwithstanding
Doe’s cries. The evidence set forth above supports this conclusion, as in
between the digital penetration crime and the rape crime, Swogger
unbuckled his pants, removed them, and repositioned Doe’s body to
accomplish his rape.
IV. Conduct Credits
Swogger contends, the People concede, and we agree the trial court
erred by awarding him zero conduct credits.
A. Background
At sentencing, the court considered the probation report, which
recommended Swogger receive credit for 1647 actual days in custody and 247
conduct credits under section 2933.1. Nevertheless, the court awarded him
1,671 actual days in custody for time spent in pretrial custody and “zero
credit for good time, work time.”
B. Analysis
It is the duty of the sentencing court to calculate the presentence actual
credit and presentence conduct credit to which a defendant is entitled, and to
record the total credits allowed on the abstract of judgment. (§ 2900.5, subd.
(d); People v. Black (2009) 176 Cal.App.4th 145, 154; see also Cal. Rules of
Court, rules 4.310, 4.472.) The failure to properly award custody and conduct
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credit is an unauthorized sentence that may be corrected on appeal. (See
People v. Cardenas (2015) 239 Cal.App.4th 220, 235; People v. Acosta (1996)
48 Cal.App.4th 411, 428, fn. 8. [“failure to award adequate amount of credits
is a jurisdictional error which may be raised at any time”]; People v. Guillen
(1994) 25 Cal.App.4th 756, 764 [computational errors concerning presentence
credits “result in an unauthorized sentence” and are subject to correction by
the appellate court].)
Under section 2933.1, a person who is convicted of a felony offense
listed in section 667.5, subdivision (c) “shall accrue no more than 15 percent
of worktime credit, as defined in Section 2933.”
“Awarding conduct credits under section 2933.1 is not a discretionary
matter. ” (People v. Goldman (2014) 225 Cal.App.4th 950, 961.) Since
Swogger’s convictions were for violent felonies and he did not waive his
presentence custody credit, he is entitled to 15 percent conduct credit or
250.65 days. We round that number down to 250 and award conduct credits.
(People v. Ramos (1996) 50 Cal.App.4th 810, 815-816 [trial court may not
round conduct credits up].) The court erred by awarding him zero credit for
good time.
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DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the
court to prepare an updated abstract of judgment awarding Charles Calvin
Swogger conduct credits consistent with this opinion, and forward a certified
copy of it to the Department of Corrections and Rehabilitation.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
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