People v. Alvarado-Cisneros CA1/5

Filed 8/25/20 P. v. Alvarado-Cisneros CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent, Case No.: A158059
v. (San Mateo County Super. Ct.
MARCO ANTONIO ALVARADO- No. SF399919A)
CISNEROS,
ORDER MODIFYING OPINION
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
BY THE COURT:
It is ordered that the opinion filed herein on August 24, 2020, be
modified as follows:
On page 1, the caption should reflect the San Mateo County Superior
Court Case Number as: SF399919A.
The modification does not change the judgment
Dated: _______________ ___________________________, Acting P.J.
1
Filed 8/24/20 P. v. Alvarado-Cisneros CA1/5 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FIVE
THE PEOPLE,
Plaintiff and Respondent, A158059
v.
MARCO ANTONIO ALVARADO-
CISNEROS, (San Mateo County
Defendant and Appellant. Super. Ct. No. SF39919A)
Eighteen-month old Dante M. died from head injuries which
manifested while he was in the care of his mother’s boyfriend, appellant
Marco Antonio Alvarado-Cisneros. Appellant was convicted following a jury
trial of assault on a child causing death and involuntary manslaughter as a
lesser included offense of murder. (Pen. Code, §§ 273ab, 192, subd. (b).)1 He
was sentenced to 25 years to life on the child assault count, with sentence on
the involuntary manslaughter count stayed under section 654, and now
appeals.2 Appellant argues the prosecutor committed prejudicial misconduct
1
Further references are to the Penal Code.
Appellant also plead guilty to several counts arising from crimes
2
committed against Dante’s mother that occurred after Dante’s death: two
counts of kidnapping under section 207, subdivision (a), one count of first
degree residential robbery under sections 211 and 212.5, three counts of
inflicting corporal injury on a spouse or cohabitant under section 273.5,
1
during closing argument and urges us to remand the case for a hearing on his
ability to pay fines and fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Family History
Dante was born in 2013 and is the only child of Maria N. and her
former husband Jesus M. His head was somewhat abnormal, with a flat spot
and an unusually large circumference (in the 99th percentile), conditions
which concerned Maria and were the subject of discussions with Dante’s
doctors. Dante was delayed in his ability to walk, and by 18 months still
needed to hold on to furniture to assist him. Maria took Dante to the
emergency room three times before he was five months old reporting that he
was turning blue; he was released after doctors were unable to diagnose
anything. He was also taken to the hospital once in April 2014 with
complaints of a cough, fever and congestion. Despite this, Dr. Tricia Tayama,
a pediatrician who later reviewed Dante’s medical records, described his
early history as unremarkable. She noted that a flat head is a common
consequence of the current recommendation that babies sleep on their back
and that Dante’s head circumference, although large, had been stable.
Following some incidents of domestic violence, Maria and Jose
separated in March or April of 2014 and Jesus left for Mexico. Shortly
afterwards, appellant moved in with Maria.
For a period of time, Dante lived with and was primarily cared for by
his grandmother (Maria’s mother) at her own apartment. When Maria took
Dante back into her home, the grandmother did not want him to go as she did
subdivision (a) and one count of misdemeanor false imprisonment under
section 236. He received an aggregate sentence of seven years four months
on these counts, consecutive to his 25-year-to-life term. This aspect of the
judgment is not at issue on appeal.
2
not want him to be with appellant. Appellant told the grandmother he would
“hurt [her] where it hurts the most.”
Maria’s sister, Estrella G., had helped her mother care for Dante and
never saw any strange injuries on his body. She never saw him biting
himself when she cared for him and never saw bite marks on his body. Dante
would move his hands up and down when he wanted something, and on one
occasion when he did this appellant told him “no hands” and hit Dante’s
hands 10 or 15 times. When Estrella told appellant he had no right to hit
Dante, appellant responded that she and her mother had spoiled him and
Dante could develop a habit and he might start biting his hands. Appellant
once put Dante in the bedroom and told him, “if you are going to cry, you are
going to cry for a reason.”
With a couple of exceptions, Maria never noticed any unusual bruises
or marks on Dante’s body. One exception occurred on a day when she took
Dante to the San Jose flea market with appellant, his five-or six-year-old son
Sebastian, and some other people. When Maria returned to the group after
leaving to go to the bathroom, Sebastian pointed to Dante’s upper arm and
said something had happened. Maria saw a mark on Dante’s arm that later
started to look like a bite. When she mentioned it to appellant, he said
maybe Dante had bitten himself. Another exception occurred when she was
changing Dante’s diaper and saw a long red mark on his leg.
B. The Incident
Maria worked evenings for a janitorial service. On August 12, 2014,
she spent the day with Dante and he seemed in good health. Maria watched
appellant’s son Sebastian while appellant slept and the two boys ate
breakfast and then played together. In the afternoon, the family went to
Safeway. At about 5:00 p.m., Maria changed into her uniform and, as was
3
her routine, gave Dante a sippy cup of milk and put him down in his crib for
his evening nap. She then went to work and left Dante in appellant’s care.
She saw appellant’s mother on the way out as she came to pick up Sebastian.
Shortly after 8:00 p.m., appellant called 911. The responding
paramedic arrived to find Dante lying on his back on the floor, not moving
and not responding to stimuli. Appellant said he had been watching Dante at
home, that Dante began screaming “nonstop,” that appellant went to the
closet to get supplies to change Dante’s diaper and that when he turned back,
Dante was rigid with his arms clenched. Appellant denied that Dante had
suffered any recent traumatic injury. There was bruising on Dante’s arm
that appeared to be bite marks, and appellant told the paramedics they were
self-inflicted. Appellant’s mother was at the apartment when the paramedics
arrived.
Appellant gave essentially the same version of events to a detective
that responded to the scene as he did to the paramedics. He also said that
Dante usually bit himself, but had not done so that day. Maria arrived home
as the ambulance was departing, having received a call to tell her that Dante
had fainted. Dante was taken to the emergency room and then to the Lucille
Packard Children’s hospital for surgery. Dante died on the operating table.
C. Prosecution’s Medical Experts
The prosecution called Dr. Samuel Cheshier, the pediatric
neurosurgeon who performed emergency surgery on Dante at approximately
11:00 p.m. on the night of the incident. He testified that when he received
the call, Dante was comatose but not quite brain-dead. The CT scan showed
a “very large blood clot inside [Dante’s] skull, but outside his brain, in a space
we call the subdural.” The neuroradiologist who had reviewed the CT scan
before the surgery (Dr. Patrick Barnes) had indicated in his report that he
4
read the scan to show an acute subdural hematoma but he “could not rule out
chronic” based on the image. Dr. Cheshier said that was a common phrase
used in medicine to make sure nothing is overlooked, and explained that both
a hyperacute bleed, which is actively bleeding, and a chronic bleed, which he
defined as at least two weeks old, may appear the same on a CT scan.
Observations made during surgery can rule out a chronic bleed.
Dr. Cheshier performed a left hemicraniectomy, which involved making
a large incision on Dante’s head to expose the skull and removing the entire
left side of the skull. He found a subdural hematoma so large it pushed the
brain over to the other side of the skull. He observed an acute bleed,
meaning it had happened that day, and hyperacute bleeding, meaning it was
actively bleeding. Blood was spurting from the sagittal sinus, a very large
vein in the middle of the brain that neurosurgeons are loathe to deal with
because if injured it is difficult to repair and if the surgeon sacrifices the vein
the patient usually dies. Dr. Cheshier had no doubt that Dante’s subdural
hematoma was hyperacute because he saw it when he opened the skull.
Once he opened Dante’s skull, Dr. Cheshier was able to rule out the
possibility of a chronic bleed, something which could not have been done from
reading the CT scan alone. Chronic bleeds are very rare in 18-month-old
children in any event: “Those are things that . . . elderly people get.”
Another indication the bleed was not chronic was that once the blood was
removed from the surface of the brain, the brain went back into position; if
the bleed had been chronic, it would have remained relaxed because it would
have had time to adjust to the pressure. Dr. Cheshier got control of the
bleeding using clotting material (which showed that Dante had the ability to
clot normally) and removed the hematoma from the surface of the brain.
5
After the hematoma was removed, Dante’s blood pressure dropped and his
condition began to spiral down until he was declared dead at 11:41 p.m.
An autopsy performed by Dr. Thomas Rogers revealed that a number of
bruises had been inflicted before death, including three marks that appeared
to be bite marks on Dante’s wrist, arm and cheek, six bruises on each leg, and
seven bruises on his torso. Bruises on the left side of Dante’s head might
have occurred during surgery, but bruises on the right side of his head were
not in the surgical area. All the bruises on Dante’s body were in hemorrhage,
and from the amount of iron present in the bruises, they could have been
inflicted from a few hours prior to death to three days earlier. Dante had no
trauma to his inner organs nor skull fractures.
The area of hemorrhage on Dante’s brain was consistent with blunt
force trauma. Dr. Rogers concluded that the cause of death was blunt
injuries to the head. A short fall onto a hard surface could be blunt force
trauma. Dr. Rogers could not say whether the injuries were accidental or
intentional.
Dr. Peter Egbert was an ophthalmologist and pathologist who
examined Dante’s eyes after his death. He discovered a hemorrhage in the
retina and around the optic nerve, of a type seen almost exclusively in
abusive injuries. He had not had any patients who had suffered retinal
hemorrhages after a short fall. A slow increase in pressure in the brain
would not cause a retinal hemorrhage. The hemorrhage seen in Dante’s eyes
was consistent with a subdural hematoma and consistent with a
nonaccidental injury.
Dr. Hannes Vogel, a neuropathologist, examined Dante’s brain after his
death. He found bleeding in the arachnoid membrane covering the brain,
diffuse cerebral edema (swelling), an intracranial hemorrhage, a swollen and
6
distended sagittal sinus, and diffuse axonal injury. In cases of severe head
trauma, the axons, which are the wiring of the brain, get sheared or torn.
The injuries Dante received were consistent with blunt force injury, and a
very severe force would have been required—a fall from a three story
building, for example, or a high speed car accident. The axonal injury was
consistent with rotational force, which could also explain the eye injuries
noted by Dr. Egbert. The lack of a skull fracture did not affect Dr. Vogel’s
opinion as it was well known that diffuse axonal injuries and subdural
hematomas can occur without fractures. The amount of force necessary to
account for Dante’s injuries would render him unconscious immediately and
could have caused a seizure.
Dr. Tayama, a pediatrician who specialized in the area of child abuse,
reviewed Dante’s medical records for the purpose of forming an opinion about
his death. She did so at the request of the county’s child protective services
agency, because the disposition of a related child was at issue (appellant and
Maria’s son, who was born after Dante died). Dr. Tayama believed the
injuries to his eyes and brain were consistent with shaking or forceful impact.
A short fall two to three weeks prior to his death would not account for his
injuries and would probably not account for more than a bruise. Some of
Dante’s bruises were concerning because they were not in a location one
would expect from a fall. There was no evidence of hydrocephalus.
D. Defense Evidence
Appellant’s defense at trial was that the prosecution had not carried its
burden of proving that Dante’s injuries were caused by an assault while he
was in appellant’s care. Instead, there was a reasonable doubt regarding
appellant’s guilt because there was evidence that Dante’s injuries could have
7
been the product of a bleed in the brain that was caused by a preexisting
medical condition and/or prior falls.
The defense elicited testimony that during the investigation into the
cause of Dante’s death, Maria revealed a history of prior short falls. A week
or two before his death, Dante fell down the front concrete steps of their
apartment when Maria was taking out the garbage. He received a scratch on
the right side of his nose and a medium bump on his forehead. Another time,
he was crawling on a stack of laundry when he fell from the top of it and bled
from his nose. On another occasion when Maria was at her older sister’s
house, Dante fell from a chair at the kitchen table as he tried to grab a falling
toy. When Maria was still with Dante’s father, Jesus, Dante fell from the bed
onto a tile floor while she was looking for some papers. Dante never lost
consciousness, got sleepy or threw up after these prior falls.
Maria told investigating detectives that Dante might have died as a
result of these earlier falls. She thinks a detective told her it was either her
or appellant who was responsible for Dante’s death. Appellant said for many
months that Dante’s death was an accident and he and his mother told Maria
not to trust the police during the investigation. Maria was pregnant with
appellant’s child and afraid the authorities would take the baby away from
her (which they did). On Facebook, Maria told an acquaintance, “since Dante
had a blood clot on his brain and he fell down on me when I had him they
think we are lying to them and according to them I or Marco are suspected of
giving him a blow to the head.” She continued, “Dante didn’t even know how
to walk. He would hit himself all the time. And that day when he fell down,
he fell down from the stairs at the entrance to where I was living before. And
he hit his head and he got a real huge bump on his forehead and blood came
out of his nose. I think the clot was caused by that blow. He fell down about
8
three times in a short time. Two in the house and another at my sister’s
house and all three blows were in the head. But those Goddamn people don’t
understand that accidents happen.”
The defense also presented the testimony of experts to contradict the
prosecution’s evidence that Dante’s injuries could not have been caused by
the falls described by Maria or by a medical condition that also resulted in his
large and/or flattened head. Dr. Patrick Barnes, the pediatric
neuroradiologist who performed the CT scans on Dante when he was brought
to the hospital, was called as a defense witness and reported a mixed-density
hemorrhage to the brain, with some of the bleed being hyperacute and some
being three hours to seven days old. Had Dante been stable enough for an
MRI, they could have more accurately identified the time of the bleed. Dr.
Barnes believed the doctors should have looked into whether Dante had a
condition that predisposed him to his injuries. It was impossible to tell
whether the axonal injury was due to trauma or to a lack of blood flow such
as what happens when one has a stroke. A big head can predispose a child to
hemorrhage either spontaneously or with minor trauma.
In Dr. Barnes’s opinion, Dante was not developing normally because he
could not yet walk unassisted; a male who could only say a few words at 18
months is cognitively delayed. Photographs of Dante show the left eye
turning in, which could be a sign of increased cranial pressure. A short fall of
three to six feet is sufficient to produce a subdural hematoma. Dante’s
subdural hematoma could have been caused by his prior falls, which in turn
could have resulted in a slow bleed. Children with brain bleeds can present
normally for days and then spontaneously become unconscious.
Dr. Jan Leetsma was called as the defense expert in neuropathology.
Dante’s head circumference caused him concern, as did the flattened head.
9
Sixth nerve palsy is caused by pressure in the skull, and Dante’s eyes were
indicative of this because photographs of him taken before his death showed
them to be turned in.3 Dante’s prior falls could have caused a subdural
hematoma, and it was not realistic to think his injuries could only be caused
by a high velocity accident or a high fall. There was evidence of an axonal
injury but not from trauma. It was possible Dante was beaten but one would
expect to see a skull fracture. There was a neomembrane that indicated an
old injury. The injury to the sagittal sinus could have been torn during
surgery.
E. Rebuttal
Dr. Terri Haddix is a neuropathologist called as a rebuttal witness.
She testified that Dante was not hydrocephalic, and that his brain filled due
to trauma. A child would not have a slow bleed of the brain or a slow leak of
the sagittal sinus and not show symptoms. Some of his axonal injuries were
due to trauma and some were due to the lack of oxygen, but they all
originated in the same traumatic event. His symptoms were all consistent
with the infliction of trauma.
DISCUSSION
A. Prosecutorial Misconduct
Appellant argues the prosecutor made a number of statements during
closing argument that attacked defense counsel’s integrity, injected his own
personal views into the case, improperly vouched for prosecution witnesses
and resorted to emotional appeals. He contends that these statements
constituted prejudicial prosecutorial misconduct requiring reversal, and that
3Dr. Cheshier testified that this condition is diagnosed after a very
detailed neurological examination. In his opinion, it would be malpractice to
make a diagnosis based only on a photograph.
10
defense counsel provided ineffective assistance to the extent she failed to
object. We do not agree that the remarks complained of amounted to
misconduct, and in any event, counsel forfeited all but one of his challenges in
failing to object. He cannot prevail on an alternative theory of ineffective
assistance of counsel when counsel may have had a tactical reason in failing
to object and prejudice was not proven.
1. Challenged Argument
Appellant identifies several comments by the prosecutor as being
problematic. The prosecutor referred to the cross-examination of Dr.
Tayama, a prosecution expert, as being by “the defense attorney” and
suggested that questions about whether Dante’s head could be from parental
neglect spoke to “the ceaselessness, to the insincerity of the defense’s attempt
to deflect, to find something, anything . . . to explain away this guy’s assault
on this defenseless child.” The prosecutor also argued that testimony about
Maria’s statement on Facebook about the police wanting someone to be guilty
was made just to “dirty her up” and “made [her] look bad and that is really
shady.” According to the prosecutor, the defense was “in a sense” blaming
Dante for his own death by focusing on his history of falls.
Appellant complains the prosecutor referred to the defense “still
try[ing] to create all this evidence of [a] big head . . . as being something
related to how he died. We know it’s not.” He notes that the prosecutor
described Dr. Leetsma as being part of the “deflection that they engaged in to
find some other excuse for the evidence,” and suggested in his testimony that
Dr. Cheshier might have cut the sagittal sinus during surgery as “almost
uncomfortable. It was uncomfortable.” The prosecutor described Dr.
Cheshier as a skilled surgeon and argued it was “outrageous, and it is
shameful, shameful” to “impugn the capability and honesty of a surgeon like
11
Dr. Cheshier. That is shameful.” The prosecutor argued that to suggest the
surgeon who was trying to save Dante’s life actually caused the bleed to the
sagittal sinus was a “conspiracy.”
Appellant argues the prosecution improperly attacked the defense
witnesses Drs. Barnes and Leetsma by talking about what they were trying
to “sell” the jury. He notes that the prosecutor attacked Dr. Barnes for his
testimony suggesting Maria should have been concerned about Dante’s prior
fall from a pile of laundry and said that testimony was “shameful. That is a
shameful statement to make of the state of the evidence in this case.” And
the prosecutor suggested Dr. Barnes had “sandbagged” the prosecution by
testifying beyond what was in his two-page report, stating that was
“inherently unfair and inherently unprofessional.” Defense counsel only
objected to the last comment. In response to the defense objection that this
was improper argument, the court advised the jury, “Comments during
arguments by counsel are up to the [jury] to take them as you wish.”
2. General Principles
“Prosecutorial misconduct involves the use of deceptive or
reprehensible methods in an effort to attempt to persuade the jury (People v.
Hill (1998) 17 Cal.4th 800, 819 (Hill) [misconduct violating state
Constitution]) or actions so egregious as to infect the trial with unfairness
(People v. Gionis (1995) 9 Cal.4th 1196, 1214 [(Gionis)] [misconduct violating
federal Constitution]).” (People v. Carter (2003) 30 Cal.4th 1166, 1207.) Our
focus is on the effect of the action on the defendant, not on the intent or bad
faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.)
When the alleged misconduct consists of remarks to the jury, “ ‘the
defendant must show a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.
12
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (People v. Brown (2003) 31 Cal.4th
518, 553–554.) Generally, “ ‘ “ ‘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.’ ” ’ ” (Hill, supra, 17 Cal.4th at p. 819.)
“ ‘ “ ‘A prosecutor may “vigorously argue his case and is not limited to
‘Chesterfieldian politeness’ ” [citation], and he may “use appropriate
epithets. . . .” ’ ” ’ [Citation].” (Ibid.) “To demonstrate misconduct, we must
view the statements in the context of the argument as a whole.” (People v.
Dennis (1998) 17 Cal.4th 468, 522.)
One example of prosecutorial misconduct during closing argument is
disparaging opposing counsel. (Gionis, supra, 9 Cal.4th at p. 1215.) Another
brand of misconduct involves vouching for the strength of the prosecution’s
case by invoking the prosecutor’s personal prestige, reputation, or depth of
experience, or the prestige or reputation of the office, in support of it. (People
v. Huggins (2006) 38 Cal.4th 175, 206–207 (Huggins).) Prosecutors also may
not offer personal opinions regarding the evidence that are based on facts
outside the record. (Id. at p. 207.) And they may not appeal to the jury’s
passion or prejudices: “It is, of course, improper to make arguments to the
jury that give it the impression that ‘emotion may reign over reason,’ and to
present ‘irrelevant information or inflammatory rhetoric that diverts the
jury's attention from its proper role, or invites an irrational, purely subjective
response.’ ” (People v. Redd (2010) 48 Cal.4th 691, 742 (Redd).)
“To preserve a prosecutorial misconduct claim for appeal, the defendant
‘ “must make a timely and specific objection and ask the trial court to
13
admonish the jury to disregard the impropriety” ’ unless doing so would be
futile or an admonition would not cure the harm.” (People v. Whalen (2013)
56 Cal.4th 1, 52.) Failure to make a timely objection generally forfeits the
claim. (Ibid,)
“ ‘A defendant whose counsel did not object at trial to alleged
prosecutorial misconduct can argue on appeal that counsel’s inaction violated
the defendant’s constitutional right to the effective assistance of counsel.’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 674.) To prevail on a claim of
ineffective assistance of counsel, a defendant must show trial counsel’s
performance was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms and those deficiencies
resulted in a “reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” (Strickland v.
Washington (1984) 466 U.S. 668, 688, 694; accord, Centeno, at pp. 674, 676.)
“ ‘Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence
and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” ’ [Citations.] When the record on direct appeal sheds
no light on why counsel failed to act in the manner challenged, defendant
must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s
act or omission. [Citations.]’ [Citation.] ‘[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[.]’ ” (Centeno, supra, 60 Cal.4th at pp. 674–675.) If there is “no
sound legal basis for objection, counsel’s failure to object to the admission of
the evidence cannot establish ineffective assistance.” (People v. Cudjo (1993)
14
6 Cal.4th 585, 616; People v. Jackson (2016) 1 Cal.5th 269, 349; People v.
Weaver (2001) 26 Cal.4th 876, 925–926.)
3. The Prosecution Did Not Denigrate Counsel or Vouch for Witnesses
Appellant complains that the prosecutor impermissibly denigrated
defense counsel by characterizing her cross-examination of Dr. Tayama as
insincere and an attempt to deflect, and by stating that it was “really shady”
for defense counsel to present evidence of Maria’s statements to the police
about Dante’s prior falls. The prosecution’s comments were strong, but were
focused upon counsel’s actions in examining witnesses and not on counsel’s
integrity. (People v. Pearson (2013) 56 Cal.4th 393, 432; Huggins, supra, 38
Cal.4th at p. 207 [not misconduct for prosecutor to argue defense counsel
tried to “smoke one past us”]; People v. Marquez (1992) 1 Cal.4th 553,
575–576 [no misconduct in referring to defense as “smokescreen”].)
Our Supreme Court has made clear that “wide latitude” is the standard
applied to a prosecutor’s comments on defense counsel’s tactics and factual
accounts: “It is generally improper for the prosecutor to accuse defense
counsel of fabricating a defense [citations], or to imply that counsel is free to
deceive the jury [citation]. Such attacks on counsel’s credibility risk focusing
the jury’s attention on irrelevant matters and diverting the prosecution from
its proper role of commenting on the evidence and drawing reasonable
inferences therefrom. [Citations.] [¶] Nevertheless, the prosecutor has wide
latitude in describing the deficiencies in opposing counsel’s tactics and factual
account. . . . Misconduct claims also have been rejected . . . where the
prosecutor criticizes the defense theory of the case because it lacks
evidentiary support.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
Appellant also complains that the prosecutor vouched for Dr. Cheshier.
We disagree. “Prosecutorial assurances, based on the record, regarding the
15
apparent honesty or reliability of prosecution witnesses, cannot be
characterized as improper ‘vouching,’ which usually involves an attempt to
bolster a witness by reference to facts outside the record.” (People v. Medina
(1995) 11 Cal.4th 694, 757, italics omitted.) The prosecutor suggested that
Dr. Cheshier was a competent surgeon—an assertion supported by the
record—and urged the jury to credit his testimony, but he did not do so based
on facts outside the record.
Nor are we persuaded that the cited remarks were an improper
statement of the prosecutor’s opinion, as opposed to simply his view of the
evidence presented, or invited an emotional or irrational response to the
evidence. (People v. Redd (2010) 48 Cal.4th 691, 743; People v. Ghent (1987)
43 Cal.3d 739, 772.) “It is not [] misconduct “to ask the jury to believe the
prosecution's version of events as drawn from the evidence. Closing
argument in a criminal trial is nothing more than a request, albeit usually
lengthy and presented in narrative form, to believe each party’s
interpretation, proved or logically inferred from the evidence, of the events
that led to the trial. It is not misconduct for a party to make explicit what is
implicit in every closing argument, and that is essentially what the
prosecutor did here.” (Huggins, supra, 38 Cal.4th at p. 207.)
4. Appellant Has Not Demonstrated Ineffective Assistance of Counsel
Even if we assume some of the remarks crossed the line into
prosecutorial misconduct, we would affirm. Appellant objected only to the
argument that Dr. Barnes “sandbagged” the prosecution by failing to write a
more detailed report. Thus, he has largely forfeited his claims of
prosecutorial misconduct, unless he can demonstrate that his counsel was
ineffective in failing to object. This he cannot do.
16
On direct appeal, we “ ‘will reverse convictions on the ground of
inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for his act or omission.’ ” (People v.
Zapien (1993) 4 Cal.4th 929, 980.) “[D]eciding whether to object is inherently
tactical, and the failure to object will rarely establish ineffective assistance.”
(People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
A failure to object in closing argument can often be explained by an
attorney’s tactical determination that: (1) the objectionable statement is not
sufficiently damaging to warrant objection; and/or (2) an objection would
highlight the objectionable statement (or inference to be drawn from that
statement), causing more prejudice than the objectionable statement alone.
Given these considerations, and the split-second decision required to lodge a
timely objection during an opponent’s closing argument, courts routinely
have recognized that “the 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.” (People v. Padilla (1995) 11 Cal.4th 891, 942,
overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
In the instant case, defense counsel’s failure to object could easily have
been based on permissible tactical considerations. The gist of the
objectionable comments was that appellant, though clearly responsible for
Dante’s injuries, was trying to blame them on other circumstances—on prior
falls, on issues involving Dante’s abnormal head shape and circumference, on
Maria’s negligence in caring for him, and on his medical treatment. Defense
counsel effectively addressed these comments in her own closing argument.
Counsel also specifically addressed the points that are alleged to be
misconduct, including Dr. Leetsma’s opinion that the sagittal sinus may have
been severed during the surgery performed by Dr. Cheshier. “Now talking
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about [the] sagittal sinus, I know [the prosecutor] said how could Dr.
Leetsma literally accuse or somehow imply that Dr. Cheshier created this
injury? No, that was never the implication. If you recall his testimony, the
question was how does one get an injury to the sagittal sinus. Well, if you
really want to know the answer, here are the various ways. Right? And one
of them could be surgical. That’s not saying Dr. Cheshier did it. And it
certainly wasn’t us trying to deflect or pinning the blame on Dr. Cheshier.”
Counsel also addressed the testimony about Maria’s statements on
Facebook about the authorities saying it was either her or Marco, and
wanting someone to be guilty, which was alleged by the prosecution to have
been elicited only to “dirty her up.” “Why is she saying this in May? Is she
saying it because she’s being told to say it? Of course not, these are personal
Facebook messages she’s having. . . What does that tell us? Because that’s
what she’s believing herself.”
Thus, defense counsel might have believed it was more effective to
rebut the prosecutor’s argument through her own argument rather than to
object and therefore highlight it. This is not a situation where “there simply
could be no satisfactory explanation” for counsel's failure to object, and
reversal on the ground of ineffective assistance of counsel is therefore not
warranted. (People v. Gray (2005) 37 Cal.4th 168, 207; People v. Wharton
(1991) 53 Cal.3d 522, 567 [finding no ineffectiveness where counsel failed to
object to prosecutor's reference to evidence outside the record, because
counsel might not have wanted to highlight the point with the jury]; People v.
Milner (1988) 45 Cal.3d 227, 245 [finding no ineffectiveness where counsel
would have acted well within the bounds of reasonable competence had he
chosen to ignore the statements rather than draw attention to them with an
objection].)
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5. The Comments to Which Defense Counsel Objected Were Not
Misconduct
Defense counsel did make one objection during the prosecution’s closing
argument. We conclude the remarks objected to, which had to do with the
credibility of Dr. Barnes, a defense witness and a treating neuroradiologist
who read Dante’s CT scan, did not amount to misconduct. “[D]iscrediting a
defense witness does not constitute misconduct provided that the
‘prosecutor’s argument merely focused on the evidentiary reasons why [an
expert’s opinions] could not be trusted.’ ” (People v. Rivera (2019) 7 Cal.5th
306, 335.)
When the prosecutor cross-examined Dr. Barnes, he questioned him
about why his report regarding the CT scan in this case was only two pages
long and did not contain many of the opinions he offered at trial. During
rebuttal, the prosecutor argued, “And what [Dr. Barnes] was offered for by
[defense counsel] was so far beyond what was in those two pages [of his
report] that it became unfair. That’s not the way the expert witness should
testify. That’s not the way the evidence should be presented in court by an
attempt not to record statements [to] be able to give to the other side, to be
able to prepare and anticipate for it. So you are not sandbagged.” After an
objection was lodged to these comments, the prosecutor characterized Dr.
Barnes’s preparation of a report that did not give notice of what his testimony
would be as “inherently unfair and inherently unprofessional when the scope
of why he was relevant was reading the CT scan to say I– remember this: I
don’t know. That’s why he said, can’t rule out chronic because I’m limited by
the CT. It doesn’t tell me everything I need to do. Even Dr. Barnes would
agree, did agree what would tell you is the MRI, the surgeon, the pathologist.
[¶] So that’s who we call, the surgeon [and] the pathologist, to help flush that
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out. There wasn’t anything more relevant to the reading of the CT scan other
than it was, I don’t know what it shows. It might show an acute, it shows an
acute and might show a chronic, rule it out; and that’s what they did.”
The thrust of this argument was that if you looked at Dr. Barnes’s
report, it was limited to stating that a chronic bleed could not be ruled out
based on the CT scan, yet his testimony regarding the possibility that this
injury was caused by a prior bleed was far more extensive. This was in
response to defense counsel’s own argument urging the jury that Dr. Barnes’s
testimony had raised a reasonable doubt as to whether Dante’s subdural
hematoma was caused by a prior injury, and that the prosecutor had the
opportunity to talk with Dr. Barnes as a treating physician but failed to do
so.4 “ ‘[H]arsh and colorful attacks on the credibility of opposing witnesses are
permissible.’ ” (People v. Parson (2008) 44 Cal.4th 332, 360.) The
prosecutor’s comments were a reasonable critique of a defense expert witness
and do not amount to misconduct.
B. Fines and Fees
Although appellant does not present a separate argument regarding
the fines, fees and assessments imposed at sentencing, in the conclusion of
his opening brief he suggests that if the convictions are not reversed the case
should nonetheless be remanded for a hearing on his ability to pay those fees
and fines. Any contention regarding ability to pay is forfeited as improperly
presented. (Cal. Rules of Court, rule 8.204 [briefs must “[s]tate each point
4 Defense counsel argued, “And I would ask you to consider this—I was
actually pretty surprised . . . that [the prosecutor], when Dr. Barnes came in
to testify and cross-examination started by [the prosecutor], he literally
raised his voice and was on the attack with Dr. Barnes. . . . [¶] It’s
interesting [] that Dr. Barnes was the treating neuroradiologist who did the
CAT scan. He was on the prosecution witness list. He is someone who has
been known to the prosecution just like all the other doctors they called.”
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under a separate heading or subheading summarizing the point, and support
each point by argument and, if possible, by citation of authority”];
Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187,
201 [failure to comply with rule requiring that each argument be presented
under a separate heading forfeits the arguments]; County of Butte v.
Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, 1196,
fn. 7 [contention not supported by citation to legal authority is forfeited].) In
any event, appellant clearly had the ability to pay the $330 restitution fine
imposed out of his prison wages. (People v. Jones (2019) 36 Cal.App.5th 1028,
1035.)
DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Alvarado-Cisneros / A158059
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