PEOPLE v. GILLIS

2d Crim. No. B224567.

THE PEOPLE, Plaintiff and Respondent, v. THORNTON A. GILLIS, Defendant and Appellant.

Court of Appeals of California, Second District, Division Six.


Attorney(s) appearing for the Case

Robert M. Sanger , Sanger & Swysen, and Donald M. Re , attorneys for Defendant and Appellant.

Kamala D. Harris , Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Pamela C. Hamanaka , Senior Assistant Attorney General, Jaime L. Fuster and Daniel C. Chang and Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COFFEE, J.

Thornton A. Gillis appeals from the judgment following his conviction by jury of continuous sexual abuse of a child and committing a lewd act on a child (Pen. Code, §§ 288.5, subd. (a); 288). The jury also found true allegations of substantial sexual conduct with a victim under 14 years of age and multiple victims. (Pen. Code, § 1203.066, subd. (a)(8); former Pen. Code § 667.61, subds. (b) & (e)(5).) The trial court sentenced appellant to 30 years to life in state prison (two consecutive 15-year- to-life terms). Appellant contends that evidentiary errors, instructional error, prosecutorial misconduct, and unlawful or improper police conduct compel the reversal of his convictions. We affirm.

BACKGROUND

Prosecution Evidence

Appellant is related by marriage to the victims of the charged and uncharged offenses. His wife, G., is the grandmother of the victims of the charged offenses. The victims of the uncharged offenses are a daughter and a niece of his former wife, B.B.

The Charged Offenses

Count I (T.)

For several years when appellant and G. lived in Ventura County, her granddaughter, T. stayed with them during the summer. T. started making summer visits in about 2000, when she was approximately six or seven years old. She continued to visit G. and appellant until she was 12 or 13 years old. When she was either six or seven years old, T. sat on appellant's lap, at his request. Appellant touched her genital area, through her clothing, by pressing it and rubbing it. He touched her that way for 10 or 15 minutes, until she got off his lap.

Each summer when T. visited appellant and G., at least once during her visit, appellant would put her on his lap and touch her vagina. Sometimes this happened while T.'s sister and grandmother were in the same room, watching television. T. was afraid to tell anyone about the incidents because she did not want to break her family apart. On the last occasion that appellant touched her while she sat on his lap, T. was about 12 years old. She was "sick of" and "fed up with it," so she arose to get water and went to play with her sister.

Count II (B.)

On February 29, 2008, appellant picked up G.'s nine-year-old granddaughter, B., from her friend's house. He took her for a short ride on a motorcycle. That evening, B. was sitting on appellant's lap in the living room while they watched television. She turned and saw appellant's penis sticking out of his partially lowered sweat pants. He was holding his penis with both hands, as if he were "squeezing it." Seeing that made B. feel disgusted. She went to the bathroom, where she felt safer.

B. returned to the living room. Appellant asked her to sit on his lap. After she did so, appellant put his hands beneath her underwear. She could feel his skin on her skin. To get away from him, B. said that appellant's soup had spilled, and she snuck back to the bathroom.

On March 12, 2008, B. told her mother that appellant was "odd." B.'s mother asked B. what she meant. B. said that when she and appellant were watching television in the living room, she looked back and saw "a big penis sticking out of his pants." B. also showed her mother how appellant had touched her by putting her hand inside her pants, on top of her vagina. Later, B. showed Sergeant Barbara Payton of the Ventura County Sheriff Department where appellant had touched her, by using a picture of a little girl. B. pointed to the little girl's pubic region just above her vagina.

T.'s 2008 Disclosure and the Pretext Call Evidence

In 2008, T.'s mother, T.C., learned of B.'s accusations against appellant. T.C. then asked T. whether appellant had ever done anything inappropriate to her. T. told T.C. that appellant had touched her in the area between her legs. T.C. advised the authorities of appellant's conduct with T.

On May 22, 2008, Ventura County Sheriff Department Detectives Luis Alvarez and Greg Tougas interviewed T. in her Henderson, Nevada, home. While there, they arranged for T. to make a "pretext" telephone call to appellant. Alvarez and Tougas taped the telephone conversation without appellant's knowledge. This method is designed to solicit a suspect's open conversation with the victim. Their conversation spanned two telephone calls that occurred with a minimal break between them.

During the May 22 pretext call, T. repeatedly confronted appellant about the times that he had touched her vagina. Appellant's responses included denying that conduct, not remembering it, denying that he would ever do such a thing, and stating that he would never touch her vagina intentionally. T. asked appellant why he was lying. He denied that he was lying and said he was being honest. During the conversation, at some points, appellant apologized by saying, "I'm sorry," and asking T.'s and God's forgiveness. Appellant denied ever having viewed T. in a sexual manner or having been attracted to young girls, or to anyone other than T.'s grandmother. T. asked appellant to promise that he would never do it again. He responded, "I would never do it again. I'll never do it again." Appellant also told T. he did not think she was lying, and he said he would never touch her vagina again.

The Uncharged Offenses

Appellant and his former wife, B.B., lived in Texas. In 1982 or 1983, B.B.'s nine- or ten-year-old daughter, R., was in the living room with appellant. He asked R. to sit on the couch, next to him. After she sat there, appellant touched her vagina, over her clothing, as they watched television. This kind of incident occurred almost every day, sometimes when other people were in the room. Within a week of the first incident, appellant started touching R.'s vaginal area under her clothing, as he masturbated. Sometime before R. was 12 years old, appellant had sexual intercourse with her, on the couch. That occurred about once a week for years. It last happened when she was 17 years old.

D.M.

D.M. started living with her aunt B.B. and B.B.'s husband, appellant, when D.M. was about 13 or 14 years old. D.M. slept on a bed in their basement. Appellant entered the basement when D.M. was on the bed. He sat on the bed and touched D.M.'s legs. He eventually touched her external vagina, over her clothes, and rubbed his "private area" under his clothing.

When D.M. was 14 or 15 years old, appellant called her into his bedroom and had sexual intercourse with her. He told her not to be scared, and said that it was "okay," it would feel good, and he wanted to teach her. He also warned D.M. that nobody would believe her if she told them about their sex, and that her own family did not care enough about her. After appellant and B.B. moved to California, D.M. lived with them. Appellant continued having sexual intercourse with D.M. He stopped having sex with D.M. when she moved out of his home, when she was either 17 or 18 years old.

Dr. Jody Ward, a clinical and forensic psychologist, testified about a syndrome called the Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Ward explained that many children who have been sexually abused exhibit the CSAAS pattern of behavior. The components of CSAAS are secrecy, helplessness, entrapment, delayed, unconvincing disclosure of the abuse, and retraction/recantation.

Defense Evidence

G., appellant's wife, testified that they had been married for 10 years. T. did not start coming to California to visit G. and appellant until 2003, after G. retired. As a school district employee, G. had learned that students made sexual allegations regarding teachers. Consequently, when T. and G.'s other granddaughters visited, G. never left them alone with appellant, not even to use the bathroom. G. also testified that when T. visited during the summer, she often stayed with B.'s family, rather than with appellant and G.

G. recalled that the date appellant had picked up B. from her friend's house was January 10, 2009, rather than February 29, 2009. Appellant watched B. on January 10 because neither her parents nor G. were able to watch her. When G. got home, appellant's business associate, Melody Higginbotham, was leaving. B. was at the house and she did not seem upset or scared.

Higginbotham testified that she went to appellant's home on January 10, 2008, at approximately 5:20 p.m., to discuss a business matter with him. Appellant had left their office early to pick up his granddaughter. Higginbotham had discussed the business with him on the telephone two or three times before she went to his house. When she arrived, appellant was wearing jeans, not sweatpants. B. was there, also. She was in a good mood, and talked and laughed with Higginbotham for 15 or 20 minutes.

Appellant testified and denied all of the charged and uncharged offenses. During T.'s telephone conversations with him, appellant believed that she was suicidal, and he made some of the statements to try to appease her. He did not deny her accusations during their telephone conversations because he did not want T. to hurt herself.

Appellant testified that T.'s mother, T.C., bore a grudge against him because he sold a business in 2002 where T.C. had a job. He also testified that in 2004, he escorted T.C. down the aisle at her wedding.

Christa Shook, appellant's former employee at a company called Ipayment, also testified at trial. In 2001 or 2002, when Shook worked in the accounting department, the company received notices of insufficient funds for checks drawn against its bank account. An investigation disclosed that the cancelled insufficient-funds checks were payable to R.

Shook was a teenager when she started working for appellant. He never touched her inappropriately. J.B., G.'s granddaughter, told Sergeant Payton that appellant never touched her inappropriately or in a sexual manner.

Shook and several other witnesses testified that appellant was honest. They also testified that they did not believe that he was a child molester, or capable of molesting children.

Dr. Patrick Barker, a psychologist, evaluated appellant. He opined that appellant showed no signs of being sexually deviant or at risk of sexually harming minors. Dr. Barker did not meet any of the victims. He considered appellant a trustworthy source of information. He acknowledged that the results of his evaluation would be meaningless if appellant had been untruthful with him.

Prosecution Rebuttal Evidence

Detective Alvarez testified that on June 4, 2008, appellant came to the sheriff's station and spoke with him. When Alvarez indicated that he wanted to discuss the allegations of sexual abuse, appellant "[i]mmediately . . . began to talk about a policy that he had with his wife . . . that he was not to be left alone with the girls." He indicated that he broke that policy when he was alone with B. for about two or three hours, approximately six weeks earlier.

Alvarez also discussed T.'s telephone conversation with appellant. Appellant told Alvarez that he did not have the details of what the improper touching was, and that T. had not mentioned anything specific during their conversation. Appellant did not recall that she mentioned his having touched her vagina. He also did not recall other portions of the conversation that are on the taped record, including comments about discussing T.'s complaint with G., and his stating that she would not want to be with a child molester. When he was at the station, appellant did not say that he had tried to appease T. during the conversation because he was worried that she might be suicidal and might harm herself. Alvarez asked if appellant had touched T. in the area around the vagina so that she could have believed there was vaginal touching. Appellant answered, "I guess it could." He said that when T. sat on his lap, he touched her near her "bellybutton area." Appellant demonstrated where he thought his hands may have gone while T. was on his lap, by placing his hand on his penis, or over his groin.

DISCUSSION

Pretext Call Issues

Appellant contends that the trial court committed reversible error by admitting the pretext call that was recorded in violation of Nevada law. We disagree.

This contention concerns the May 22, 2008, telephone conversation between T. and appellant that the detectives taped without his knowledge. Appellant argues that the pretext call evidence should have been excluded because his statements during the call were involuntary, as T. was acting as an agent of law enforcement during the conversation, and because the call violated a Nevada statute prohibiting the unauthorized interception of such communications. He further contends that the pretext conversation should have been excluded under Evidence Code section 352 because its prejudicial impact outweighed its probative value.1

Respondent asserts that appellant waived these contentions by failing to make a timely objection to the pretext call evidence. Waiver aside, we conclude that the error, if any, in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.

Both victims gave compelling testimony. The defense responded primarily by disputing the accuracy of the dates on which T. and B. were in appellant's home; by claiming that appellant was never alone with the victims, with the exception of the day in 2008 when appellant picked up B. from school; by attacking the plausibility of T.'s claims; by presenting opinion testimony regarding appellant's lack of sexual deviancy symptoms; and by presenting other witnesses to vouch for his character. During their rebuttal, the prosecution presented evidence that appellant told Alvarez that while holding T. on his lap, he placed his hands on her lap. He demonstrated that by placing his hand on his groin or penis. Viewing the record as a whole, the evidence of appellant's guilt is overwhelming.

Moreover, the pretext call evidence is exculpatory as well as inculpatory. During the call, appellant repeatedly stated that he did not touch T.'s vagina or remember having done so. He also denied that he was sexually attracted to young girls or to anyone other than his wife. During closing argument, appellant's counsel stressed that during the taped conversation appellant was "not admitting that he touched [T.] inappropriately," and that if you "listen to the whole thing from start to finish, . . . it is not bad." He later stated that appellant was telling T., "I'll do anything I can to help you get through it . . . . What can I do for you to help you? Not, oh, I am sorry for touching you. . . ." Counsel later states, "when [T.] was specific with him, he denies it. . . ." Thus, assuming that the pretext call evidence was admitted in error, it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.)

Appellant also claims that Alvarez's "failure to preserve the notes he used to prompt . . . T. during the pretext call violated [his] rights to due process, a fair trial and confrontation." We disagree.

Law enforcement agencies have a duty to preserve evidence "that might be expected to play a significant role in the suspect's defense." (California v. Trombetta (1984) 467 U.S. 479, 488; People v. Zapien (1993) 4 Cal.4th 929, 964.) To fall within the scope of this duty, the evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." (Trombetta, supra, at p. 489.) "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Arizona v. Youngblood (1988) 488 U.S. 51, 58.)

During trial, Alvarez testified that he wrote down questions for T. to ask appellant as she spoke with him, but appellant did not question Alvarez about the disposition of the notes. Appellant asserts that the prosecution did not disclose the notes during pretrial discovery.

Appellant raised the issue concerning the possible destruction of the notes for the first time in his motion for new trial. At most, he has raised a possibility that the information in the notes may ultimately prove exculpatory. In addition, the record before us does not establish the destruction or other disposition of the notes, or that law enforcement acted in bad faith with respect to them. We thus reject appellant's claim that the "destruction" of Alvarez's notes deprived him of his constitutional rights to due process, a fair trial and confrontation. (See People v. Catlin (2001) 26 Cal.4th 81,159-160.)

Uncharged Offense Evidence

Appellant contends that the trial court erred by admitting evidence of appellant's uncharged offenses and thereby denied him a fair trial and due process of law. We disagree.

Before trial, the prosecution moved to admit evidence regarding appellant's prior uncharged sexual acts with two girls (R. and D.M.) and prior uncharged acts with one boy (D.), pursuant to section 1108, to show appellant's intent to commit the charged offenses. Appellant argued that such evidence was inadmissible under sections 1108 and 352. The trial court excluded the evidence of appellant's uncharged acts involving the boy (D.). It admitted the evidence of his uncharged acts involving the girls (R. and D.M.) to show his intent to commit his charged acts against two other girls (B. and T.).

In general, evidence of a defendant's commission of an uncharged offense is inadmissible to show bad character or predisposition to criminality, but admissible to prove a material fact at issue, such as motive, intent, common plan, or identity. (§ 1101, subds. (a) & (b); People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) As an exception to the general rule, section 1108 provides that evidence of a prior uncharged sexual offense is admissible in a sexual offense case to show that the defendant has a disposition or propensity to commit such crimes. (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1013; People v. Falsetta (1999) 21 Cal.4th 903, 915.) To be admissible under section 1101, subdivision (b), the uncharged and charged offenses must be similar, with the degree of required similarity depending on the purpose for which the evidence is offered. (People v. Ewoldt, supra, at pp. 402-403.) In addition, evidence is subject to exclusion under section 352 when its probative value is substantially outweighed by the probability of undue prejudice. (§ 1108, subd. (a); People v. Cole (2004) 33 Cal.4th 1158, 1194-1195.)

Appellant argues that the uncharged offense evidence was not admissible because it lacked foundation and was not relevant. In so arguing, he stresses that the uncharged offenses of sexual intercourse and oral copulation were not sufficiently similar to the charged offenses. He also argues that the uncharged offenses did not result in any conviction, were not timely reported, and involved conduct alleged to have occurred as much as 30 years before the charged offenses.

The lack of prior reports concerning the uncharged offenses is mitigated by the evidence that many children who have been sexually abused never report the abuse. The fact that the uncharged offenses included sexual intercourse and oral copulation does not render them irrelevant. As the trial court stated, "the overall probative value [of the uncharged offenses was] extremely high because we have children of similar age, conduct that at least initially was similar, and of course the factor of being to some degree or another vulnerable and available to [appellant]." In the charged and uncharged offenses, the victims were females who were related to appellant through marriage, and the acts occurred in his home while the victims were living or staying with him and his wife. In each case, appellant initiated the abuse in a similar manner, by placing his hands on or under their clothing and touching their external vaginal area. In both charged offenses and one uncharged offense, he often did so after inviting the victim to sit on his lap. He also masturbated in the presence of the uncharged offense victims R. and D.M., as he did with B., the victim of a charged offense.

Citing section 352, appellant further contends that the uncharged offense evidence is inadmissible because its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. He stresses that the prosecution theory regarding the charged offenses was that appellant "became aroused by simply touching the sexual organs of the girls, and through self stimulation." In contrast, he argues, that "the `propensity `of the prior acts was that the touching was simply a prelude to intercourse or oral copulation."

In making a section 352 determination of whether the probative value of evidence of an uncharged offense is substantially outweighed by the probability of undue prejudice, the court must consider the nature, relevance, and possible remoteness of the uncharged offense, the degree of certainty that it was committed, the likelihood of confusing or misleading the jurors, its similarity to the charged offense, its likely prejudicial impact on the jurors, and other factors. (People v. Falsetta, supra, 21 Cal.4th at pp. 916-917; People v. Harris (1998) 60 Cal.App.4th 727, 737-740.) We review a trial court's decision under the abuse of discretion standard, and will uphold the ruling unless the court acted in an arbitrary, capricious, or patently absurd manner. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

As appellant notes, the absence of a conviction for the uncharged offenses may increase the danger the jury may punish the defendant for the uncharged offense. (People v. Falsetta, supra, 21 Cal.4th at p. 917; People v. Ewoldt, supra, 7 Cal.4th at p. 405.) But, the record provides no basis to indicate that the jury did so in this case. It was properly instructed, with CALCRIM No. 1191, on the limited purpose for which it could consider the evidence.

Appellant argues that the uncharged offenses against D.M. and R. were more inflammatory than the charged offenses because they involved intercourse and possibly oral copulation. This factor has been cited as a basis for excluding uncharged offense evidence, when there is a significant difference between the nature and quality of the crimes. For example, in People v. Harris, supra, 60 Cal.App.4th pages 730-733, a mental health nurse was convicted of sexual offenses involving two patients. The trial court admitted evidence that the defendant brutally raped a young woman 23 years before the charged offenses. In concluding that the uncharged crimes were admitted in error, the reviewing court stressed the "significantly different nature and quality [of the] charged crimes involving a breach of trust . . . of emotionally and physically vulnerable women [and the] violent and perverse attack upon a stranger [in the uncharged crime]." (Id. at pp. 738-739.) All sexual offenses with young victims who are related to the defendant are inflammatory. Even if the uncharged sexual intercourse or oral copulation offenses with teenaged victims could be considered more inflammatory than the charged offenses, the nature and quality of the charged and uncharged offenses was not significantly different. None of the prior offenses involved brutal violence upon a stranger, as did the uncharged offenses in Harris. Appellant took advantage of a position of trust, in his home, and he was related to the young victim through marriage in each charged and uncharged offense.

The age of the uncharged offenses does not compel their exclusion. Here the uncharged offenses occurred approximately from 13 to 25 years before the charged offenses. (The uncharged R. offenses began in 1983 or 1984, and continued for about seven years, until about 1990. The uncharged D.M. offenses began around 1980, and continued for about five years, or until about 1985. T's and B's charged offenses began in 2000 and 2008, respectively.) Courts have upheld the admission of uncharged offenses as old as 20 or 30 years. (See People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [prior offenses between 15 and 22 years were not too remote]; People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [prior acts 30 years old were not too remote].)

The trial court carefully considered the necessary factors before ruling on the admissibility of the uncharged acts. It excluded evidence of proffered uncharged conduct involving a male victim. As the court stated "the [section] 352 issue [was] extremely well briefed at length by both sides," and it had "carefully considered the whole [section] 352 picture" as it "read through the briefs and certainly . . . considered every argument by both sides. The prejudicial impact of the uncharged offenses involving R. and D.M. did not outweigh their highly probative value, as we have already discussed. The court acted within its discretion when it admitted those offenses.

CALCRIM No. 1191

We reject appellant's challenge to CALCRIM No. 1191 regarding the use of prior uncharged sex offenses. He claims that the instruction is fatally flawed, among other reasons, because it had the effect of altering the burden of proof. The California Supreme Court has rejected comparable arguments in upholding the constitutionality of the 1999 version of CALJIC No. 2.50.01. (People v. Reliford, supra, 29 Cal.4th at pp. 1012-1016.) The version of CALJIC No. 2.50.01 considered in Reliford is similar in all material respects to the version of CALCRIM No. 1191 that was given here in its explanation of the law on permissive inferences and the burden of proof. (People v. Johnson (2008) 164 Cal.App.4th 731; People v. Schnabel (2007) 150 Cal.App.4th 83, 87; People v. Cromp (2007) 153 Cal.App.4th 476, 480.)

CALCRIM No. 1191, as given below, provides in relevant part: "The People have presented evidence that the defendant committed the crimes of continuous sexual abuse on a child, lewd act on a child, digital penetration of a minor, and unlawful sexual intercourse with a minor that were not charged in this case. These crimes are defined for you in the instructions for those crimes. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. . . . [¶]. . . [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit and did commit the crimes charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged crimes. The People must still prove each charge and allegation beyond a reasonable doubt. [¶] Do not consider this evidence for any other purpose."

Appellant claims that CALCRIM No. 1191 is defective because it "tells the jury that proof by a preponderance of the prior sexual misconduct could justify a conclusion that the defendant `did commit the crimes charged here,'" that a "conclusion of guilt is not an inference of guilt," and that a "conclusion of guilt carries with it a finding of proof beyond a reasonable doubt." (Emphasis deleted.) Appellant acknowledges that the instruction cautions the jury that finding the defendant committed the uncharged offenses is "only one factor" to be considered and that it is not sufficient by itself to prove guilt of the charged crimes. He nonetheless argues that CALCRIM No. 1191 allows jurors to "conclude" that the defendant is guilty of the charged offense "so long as there is some other unspecified evidence regarding the current offense." Appellant's contention suggests that the instruction authorizes a jury to base guilt upon insignificant evidence concerning the charged offense, provided it finds by a preponderance of the evidence that the defendant committed the prior offenses. It does not.

In a related contention, appellant asserts that the instruction "had the effect of altering the standard of proof beyond a reasonable doubt . . . ." All of his claims discount the language in CALCRIM No. 1191 informing he jury that the "People must still prove each charge and allegation beyond a reasonable doubt." We are not persuaded that a reasonable juror would interpret these instructions to authorize a guilty verdict based on its finding that he committed the uncharged offenses, provided there was "some other unspecified evidence" regarding the current offense. (See People v. Reliford, supra, 29 Cal.4th at p. 1013.) Nor do we "find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof." (Id. at p. 1016.)

Prosecutorial Misconduct

Appellant contends that prejudicial prosecutorial misconduct deprived him of a fair trial. We disagree.

"`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 819, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Here, appellant cites two incidents which he claims constitute prejudicial misconduct. He failed to preserve the issue for review because he did not object on the ground of prosecutorial misconduct. Even if appellant had fully preserved the issue for review, the cited incidents would not constitute reversible error because little, if any, misconduct occurred. "`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.' [Citations.] `Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 176.)

Appellant claims that the prosecutor committed misconduct by questioning witness T.C., T.'s mother, as follows: "Q: Now, I'd like to ask you a few questions about T.'s relationship with her cousin B. [¶]. . .[¶] Q: Ms. C., do you have any reason to believe that your daughter [T.] is lying about what — [¶] [Defense objects, court overrules objection and directs prosecutor to continue.] [¶] Q: Do you have any reason to believe that your daughter [T.] is lying about what she told you? [¶] A: Not at all." (Italics added.) Even assuming that the cited questioning was improper, it did not infect the trial with unfairness.

Appellant also claims that the prosecutor committed misconduct by arguing that appellant had "to convince [the jury] that he didn't do anything." The challenged comment appears, in context, in the following segment of the prosecutor's closing argument: "Let's talk about the defendant's testimony. The defendant has no presumption of truthfulness and no presumption of credibility. What I mean by that is as soon as he decides to get up out of that chair, to walk over here and take the same oath under penalty of perjury that all the other witnesses took and as soon as he gets up on this stand and starts answering questions, he is subjected to the same scrutiny as every other witness. And you have to evaluate his testimony with the same scrutiny that you would any other witness. And the simple fact of the matter is that his testimony was not credible. First of all, he has to convince you that he didn't do anything. He obviously wants an acquittal. He's pled not guilty. He has invested in convincing you that nothing happened. And that fact that his story changed from the time of the pretext call, the time that he talked to Detective Alvarez and here today in court just goes to show how he has made it — pushed his version of what happened closer and closer to what he thinks will be in his best interest." (Italics added.) He thus argues that the uncharged offense evidence had minimal probative value.

Appellant argues that the challenged comment improperly suggested that the prosecution "`did not have the burden of proving every element of the crimes charged beyond a reasonable doubt . . . and by suggesting `that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.'" In assessing this claim of misconduct, we must determine whether there is a reasonable likelihood that the jury misconstrued or misapplied any of the prosecutor's remarks and view the allegedly improper comment in the context of the argument as a whole. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) Having done so, we conclude that the challenged comment does not constitute prosecutorial misconduct, for several reasons.

First, we note that after making the challenged comment, the prosecutor made frequent reference to the fact that the prosecution carried the burden of proof. For example, in discussing each crime, the prosecutor stated, "To prove the defendant guilty of this crime, the People must prove." In discussing the beyond a reasonable doubt standard, the prosecutor told the jury that "the People have to prove . . . that those elements are satisfied beyond a reasonable doubt." We further note that by testifying, appellant placed his credibility at issue, and the challenged comment related to appellant's purpose in testifying rather than the burden of proof. The challenged comment concerned appellant's bias — a factor the jury can properly consider in evaluating the testimony of any witness. (See CALCRIM No. 226 [jury can consider whether a witness's testimony was influenced by a personal interest in how the case is decided].) The challenged comment was brief, and constituted a small fraction of a lengthy closing argument.

DISPOSITION

The judgment is affirmed.

We concur:

GILBERT, P.J.

YEGAN, J.

FootNotes


1. All statutory references are to the Evidence Code unless otherwise stated.

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