Filed 1/8/14 P. v. Gonzales CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
FREDRICK GONZALES,
Defendant and Appellant. B244935
(Los Angeles County Super. Ct. No. VA119346)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Robert J. Higa, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2 Appellant Fredrick Gonzales appeal s from the judgment entered upon his conviction by jury of two counts of lewd acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)). 1 Appellant contends the prosecut or committed prejudicial misconduct requiring reversal of the judgment.
We find no e rror and affirm.
FACTS 1. Procedural Background Appellant was charged by amended inform ation with four counts of committing lewd acts on a child between September 1, 20 01 and June 1, 2002. The jury found appellant guilty on counts 2 and 3, and not guilty on count 4. The jury wa s deadlocked
on count 1. The trial court d eclared a mistrial as to that count and it was dismissed. Appellant brought a motion for new trial based in part on prosecutorial misconduct. The
trial court denied the motion. The trial c ourt sentenced appellant to the low terms of three years on counts 2 and 3 and or dered them to run concurrently.
2. Prosecution Evidence C. G. is appellant’s half sister. They ha ve the same father but different mothers.
C. testified that when she wa s a child she lived in a three bedroom house with appellant, her sister Emily G., her brother Francisco, her aunt Cathy, her uncle Ralph, and her grandparents. C. and Emily shared a bedroom. Appellant and Francisco slept in the den. On January 25, 2011 C. reported to law enfo rcement that appellant performed lewd acts on her between September 1, 2001 and June 1, 2002. Appellant was 19 years old at the
time of the incidents described herein. 2 C. was in the fifth grade and was 11 years old. C. was cleaning her bedroom when appe llant walked in and closed the bedroom door. Appellant guided C. to the bed and star ted rubbing her vagina over her clothes. He

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

2 Only the facts pertaining to counts 2 a nd 3 for which appellant was convicted are presented here.3 then rubbed her vagina under her clothes, pulled her shorts down and orally copulated her. Appellant stopped after a few minutes, laid on the bed and masturbated. He told C. to “get on” but she said no, and left the room.
On another occasion C. was sleeping in her bedroom with her sister Emily. C. woke up because she felt someone touching her. Appellant fondled her over her clothing and then C. felt his fingers go under her clot hing. She tried but was unable to wake up Emily and she turned away from appellant so that he could not touch her. Appellant stopped and then crawled out of the bedroom.
Evidence of two additional incidents wher e appellant performed sexual acts on C. against her will was introduced at trial under Evidence Code section 1108. The incidents occurred prior to the charged o ffenses. On one occasion when they were sitting next to each other watching television in the den, appe llant told C. to pinch his nipples. C. pinched one of appellant’s nipples even though she did not want to do it. She felt she had to do it because appellant was much bigger than she. When thei r grandmother walked into the den appellant told C. to stop. Appellant told thei r grandmother that he did not know why C. was touching him. On another occasion appellant asked C. to stay in the pool after everybody else got out. Appellant sat on the pool step beside C. and fondled her over her bathing suit. C. testified that appellant had fondled her “probably twenty times” prior to the incidents when she was in the fifth grade. C. did not report the incidents involv ing appellant to an yone until after her grandfather passed away. In January 2011, while at her boyfriend Manuel’s house, C. told Manuel about her relationship with appella nt and why she had a conflict with him. C. told Manuel what appellant did to her beca use “brothers don’t do certain things to their sister.” The same day, C.’s father Fredrick , her younger brother Francisco, her older half brother Robert, and appellant, drove to Ma nuel’s house to pick up C.. Appellant
remained in the car with Fred rick while Robert and Francisc o went inside. Robert got very upset when C. told him that appella nt inappropriately touched her. He became angry when he went outside and did not want C. to be in the car with appellant. Robert4 told appellant, “you walk. You walk.” Fredrick asked appellant, “what’s going on?” Appellant stated that C. was lying. C. had not revealed the allegations of sexual abuse to appellant or her father prior to appellant’s statement. Upon arriving at her grandmother’s house, C. told her aunt Cathy and her grandm other that, in the past, appellant touched her inappropriately. They told her that she should have said something when her grandfather
was still alive because he “would have done something abou t it.” C. told them that her uncle Ralph also molested her in his car when she was in the sixth grade. C. felt that her father, her aunt, and her gra ndmother did not believe her. She packed her “stuff” and
moved in with Robert. C. needed time to “t ake it all in” and after a few days reported the
incidents to law enforcement because she “felt that it wa s the right thing to do.” Emily was having lunch with her boyfrien d when she received a call from her aunt Cathy who asked her if uncle Ralph had ever touched he r inappropriately. Emily was unaware of what had happened earlier at he r grandmother’s house. Cathy relayed to Emily that C. told the family that appellant had sexually assaulted her in the past. Emily told Cathy that Ralph had not touched her ina ppropriately but that appellant had molested
her two or three times when she was about seven or eight years old. The incidents occurred when Emily and C. ha d to sleep in the den because family from out of town were visiting and using their bedroom. On two separate occasions appellant laid down next to Emily and placed his fingers inside her vagina. Emily stretched and moved and appellant quickly pulled his fi ngers out and left. On anot her occasion, appellant laid down next to Emily and took her hand and placed it on his pe nis. Emily pretended to stretch and yawn and pulled her hand away. Emily did not say anything about appella nt touching her inap propriately until C.
came forward with her accusations. She did no t want to be “blamed for anything” and she acted “like it never happen ed” because she wanted to s how that her family “was perfect.” C. and Emily both testified that since they revealed the allegations of appellant’s sexual abuse, appellant’s side of the family “turned th eir back” on them.5 Whittier Police Detective Kenneth Woods interviewed C. and Emily. Detective Woods was assigned to the Sex Crimes Unit and had conducted in excess of 150 sexual assault investigations. He testified that it was common for victims of child molestation to delay reporting the incidents. He testified that while C. had been inconsistent on the order in which the incidents happened, she was consistent in describing the details of the incidents she alleged.
3. Defense Evidence Several of appellant’s family members, including his mother and grandmother, testified that appellant did not live at his grandparents’ house with C. during the time period in which the charged incidents occu rred. Appellant’s mother testified that appellant and his girlfriend lived with her in a different city and produced documentation to support her claim. She pr oduced a driver’s license for appellant’s girlfriend that was issued on December 14, 2001, and appellant’s W-2 tax form which indicated that he made $27 for the year 2002. Appellant’s grandmother testified that she and her husband loved appellant “dearly” and “loved him like a son because he was always” with them. Several family members testified that appellant kept clothe s at his grandmother’s house but appellant’s grandmother testified that he never spent the night at her house and that he only visited her house on two occasions during the one -year time period in which the incidents
occurred. She also testified th at prior to C. making the allegations against appellant she told C. and Emily that appella nt would inherit her house when she died and that they would not be inheriting anythi ng from her estate. At the tim e of trial, there was no will showing the grandmother’s intent and there ha d been no disputes over inheritance. Several witnesses opined that C. was not a truthful person and that she had a reputation for lying. One witness said she wa s “a liar and manipulative,” another said she told “lies,” and another said “she fibs.” C.’s father Fredrick testified that on two different occasions she falsely accused someone of inappropriat ely touching her.6 Several witnesses testified to appellant’s good character and reputation, and that
he had been around other children without in cident. A psychologica l evaluation prepared by Dr. Jennifer Bosch indica ted that appellant’s highest sexual interest group was adolescent females, ages 14 to 18. Dr. Busch opined that this was considered normal
because it was not indicative of attraction to prepubescent children. She acknowledged that she had no way of verifying the vera city of appellant’s statements during the assessment, and that her assessment was relevant to appellant’s current age of 29, and not when appellant was 18 years old when it was alleged he committed the crimes.
4. Prosecution’s Rebuttal C. denied making false accusations and telling her father that someone had inappropriately touched her. The prosecution introduced a recording of a telephone call between C. and appellant, in which she accuse d him of sexually molesting her. C. told him that she wanted to hear him say he was sorry. She said she wa s attending counseling and wanted to put everything behind her. Appellant responded, “Well put it behind you. I mean, it’s behind me.” Appellant said he forgave C. for him being in jail and explained “I respect whatever it is that I did to you that makes you the way you are or whatever then you know, I hope that you forgive me.” When C. told appellant that she could not move on until he expressed remo rse, he responded, “Well this is the best you can get. I mean it’s that I forgive you and I hope you forgive me and . . . .”
DISCUSSION
Contention Appellant contends that the prosecuto r committed prejudicial misconduct during rebuttal argument. Appellant argues that the pr osecutor “suggested to the jury that there
were documents or exhibits that had been generated, but that were not admitted into evidence, of which counsel for both sides were aware, that somehow conclusively proved that the prosecution’s witnesses were telli ng the truth.” Appellant also argues the prosecutor’s remarks impugned defense counse l’s integrity by implying that defense
counsel tried to deceive the jury.7 Applicable Law “The applicable federal and state standa rds regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . in temperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregi ous that it infects the trial
with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade e ither the court or the jury.’”’ [Citation.]” ( People v. Samayoa (1997) 15 Cal.4th 795, 841.) “A dditionally, when the claim focuses upon comments made by the pros ecutor before the jury, the qu estion is whether there is a reasonable likelihood that the ju ry construed or applied any of the complain ed-of remarks in an objectionable fashion. [Citation.]” ( Ibid. ) Proceedings Below In her rebuttal argument, the prosecutor focused on the defense theory that C. made up the accusations against appellant and that both she and her sist er were liars. The prosecutor stated “this is a case about credib ility of the witnesses. If you believe Emily, if you believe C., and what they have to say, you have enough to convict.” The prosecutor discussed the jury instruction on evaluating th e credibility of witnesses (CALJIC No. 2.20) and stated that C. and Emily answered the questions in a straightforward manner. She continued, “When I asked them the question basic questions, where do you live? Who do you live with? What happened to you, et cetera; very basic. We’re not hiding the ball on anything, it’s just a question. What can you tell the jury, because this is the first time that you are hearin g the evidence. The defense attorney and I, we both know what happened in this case based upon everything that is generated . . . .” Defense counsel objected and the trial court overruled the objection. The prosecutor continued, “Um, I [] lost my train of thought. I’m sorry. Um, the way that these girls testified in court . . . is very truthful. I was te lling you that when I asked them a question, they answered it directly. As jurors you are hearing the8 information firsthand, so it’s very new to you.” The prosecu tor further argued that C. and Emily had no motive to lie a nd their accounts of what occu rred were not embellished or exaggerated. The prosecutor asked the jury to remember the instru ction on the use of
evidence of other sexual act s that appellant committed (C ALJIC No. 2.50. 01) and urged the jury to follow the law and find appellant guilty. At this point the trial court ordered a
break for lunch and defense counsel renewed her objection outside the presence of the jury. Defense counsel stated that her specific objection was to the prosecutor’s statement that “the defense attorney and [the prosecuto r] know what really ha ppened in this case,
we know what the facts are.” The trial cour t responded, “Well, in a way she could be bolstering your argument as to everything you said too; right? It cuts either way, but I
didn’t hear . . . .” After appellant was found guilty, defens e counsel moved for a new trial, arguing among other grounds that the prosecutor’s rebuttal argument was improper and
constituted misconduct. The tria l court denied the motion. Specifically addressing the prosecutorial misconduct argument, the court st ated, “I had our reporter transcribe that portion and I read and reread that, and after c onsidering the language there I do not think this really amounts or reaches the level of prosecutorial misconduct.” Analysis As with most child molestation cases, th e issue was credibility. The vast majority of argument of both defense counsel and the pr osecution consisted of a series of attacks on the credibility and character of witnesses. Here, the prosecutor’s comments were grounded in the evidence and constituted a valid argument. The majority of the defense
consisted of witnesses who atte mpted to convince the jury that appellant did not live with C. during the time period at issue, and that C. was a liar. In her closing argument, defense counsel vigorously emphasized that C. was “damaged” and was “famous” for making “false allegations.” The prosecutor so ught to focus the jury on C. and Emily’s tenacity in sticking to their individual storie s over the course of time and in the face of hostility aimed at them from their paternal relatives.9 Appellant singles out the prosecutor’s rema rk that “The defense attorney and I, we both know what happened in this case based upon everything that is generated . . . .” as if implying there was additional evidence of appella nt’s guilt that the jury did not get to see. Generally, a “ prosecutor may not go beyond the evidence in his argument to the jury. [Citations.] To do so may su ggest the existence of ‘facts’ outside the record—a suggestion that is hard fo r a defendant to challenge and hence is unfair.” ( People v.
Benson (1990) 52 Cal.3d 754, 794–7 95.) But that is not a reasonable interpretation of the prosecutor’s statement in this case. Defense counsel wa s premature in objecting as we note that the prosecutor was interrupted befo re completing her remark. Moreover, when
read in context of the entire rebuttal argument, but particularly the comments immediately preceding and subsequent to defe nse counsel’s objection, the remark does
not constitute misconduct. Prior to the stat ement at issue here, the prosecutor talked about C. and Emily’s demeanor while answer ing questions on dir ect examination and stressed how important it was that they tell th eir story because this was the first time the jury heard the evid ence. After making the challenged statement, the prosecutor continued to emphasize that C. and Emily were truthful and stated, “I was telling you that when I asked them a question, they answered it directly. As jurors, you are hearing the information firsthand, so it’s very new to you.” In preparation for trial, the prosecut or and defense attorney had heard and
reviewed the evidence numerous times and had strong opini ons regarding the credibility of the witnesses. The jury on the other hand was hearing th e evidence for the first time and was required to make an in dependent determination of cr edibility regardless of what defense counsel or the prosecutor argued at trial. The prosecutor’s comment was nothing
more than a statement of thei r respective roles as zealous ad vocates for their side in the legal process and did not imply that there wa s specific evidence ou tside of the record. For the reasons discussed herein, we also reject appellant’s assertion that the prosecutor’s remark implied that defense co unsel was attempting to deceive the jury. Appellant points to no other remark by the prosecutor, nor has our review disclosed any,10 that rises to the level of misconduct under e ither federal or state standards. On this record, it cannot be said that th e prosecutor’s conduct was so egregious that it infected the trial making it fundamentally un fair or that the prosecutor used any deceptive or reprehensible methods. The prosecutor’s remarks were permissible rebuttal on the pivotal issue of witness credibility. ( See People v. Tully (2012) 54 Cal.4th 952, 1016; People v. Stanley (2006) 39 Cal.4th 913, 952.) Appellant’s claim of prosecutorial
misconduct fails.11 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________ _____, J. *
FERNS
We concur:

_____________ _______________, P. J.
BOREN

___________________ _________, J.
CHAVEZ

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.