Filed 3/7/14 P. v. G uzman CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

JAIME GUZMA N,
Defendant and Appellant. B244562
(Los Angeles County Super. Ct. No. VA 121015)

APPEAL from a judgment of the Superior Court of Los Angeles County, John Torribio, Judge. Affirmed.

Judith Kahn, under appointment by the Court o f Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Re spondent.

* * * * * *2

Defendant Jaime Guzman challenges his five convictions for sexual penetration of
a child under 10. We affirm.
FACTS AND PROCEDURE
B.M. testified that in July 2011
, when she was eight years old
, Mario Ortega babysat her and took h er to defendant’s apartment and defendant’s girlfriend’s house

. B.M. saw defendant five days in a row. On Monday, defendant put his finger inside
B.M.’s vagina
, and it hurt her. Defendant also put his finger in her anus and a sked her to
lie down with hi m. On Tuesday, defendant put his finger in B.M.’s vagina , hurting her. B.M. w as upset and angry afterwards. On Wednesday, defendant put his finger in B.M.’s vagina, again hurting her. B.M. had told Ortega she didn’t want to go to defendant’s apartment, but he took her there anyway. B.M. also told her mother that she did not want t o go to defendant’s apartment. On Thursday defendant put his finger in B.M.’s vagina and to uched her breasts. B.M. was upset , but Ortega did not notice her anger. On Friday , defendant and B.M. went t o defendant’s girlfriend’s home

. B.M. was playing with dolls and watching a movie on television when d e fendant pulled down B.M.’s pajamas and put his finger inside her vagina. Defendant also kissed her buttocks
and bit her on t he left side of her buttocks

. B.M. worried that she needed to be hospitalized for the pain she felt when defendant penetrated her vagina

. B.M. was upset and ang ry when defendant touched her.
Defendant t old B.M. not to tell anyone about his conduct

. In a tape

- recorded interview, defendant admitted rubbing B.M.’s vag ina. He
admitte d putting his hand inside her. He said it happened two times. At trial, defendant denied touching B.M. or placing his finger in her vagina or

anus. He testifie d that he lied during his pretrial interview because h e was cold, tired,
and afraid. A lso a ccording to defendant, prior to the interview, he had been interviewed by another officer who was ver bally aggressive.3

Defendant testified that Ortega and B.M. never visited him inside his apartment. They visited once in the evening, bu t did not enter the apartment. B.M. played outside

. B.M. ran on the sidewalk and the street whil e defendant and Ortega talked. Defendant saw Ortega and B.M. a second time at the house where his girlfriend (who he referred to as his wife) lived. Defendant peered into the bedroom where B.M. played and slept but did not interact with her other than placing a blan k et on top of her. Defendant testified he never fondled B.M. at his apartment or at h is girlfriend’s house. During rebuttal, Ortega testified that he took B.M. to defendant’s apartment and once to defendant’s girlfri end’s house. Defense counsel did not cross

- examine Ortega. Defendant was charged and convicted of five counts of sexual pe netration with a
child under 10 (Pen. Code
, § 288.7, subd. (b) )

. The court sentenced defendant to
consecutive prison terms of 15 years

- to

- life on counts one and two
, and ordered the three remaining counts to run concurrently.
DISCUSSION Defendant argues that the court and the prosecutor committed misconduct, thereby prejudicing him. We find no judicial misconduct and no prejudicial prosecutorial
misco nduct.
1. Alleged Judicial Misconduct When defendant testified, defense counsel elicited testimony that Ortega and B.M. visited defendant at his apartment but neither entered the apartment. According to defendant, d efendant spoke to Ortega while B.M. ran on the sidewalk an d the street.
Cou nsel then asked whether B .M. was “ running to a particular location” and whether the

street “ was

. . . near

. . . .” The court cut off the question of whet her the street was near stating: “Counsel, we are getting into [ an ] awful lot of minutiae. Can we get to what
we’re here for ? It’s an awful lot of minutia e that’s be ing develo ped here
, so let’s move it
on.”
Ou tside the presence of the jury, defense counsel argued that a mistrial was warranted because the court’s statement diminished counsel’s integrity and that by using4

the term “ minutia e ,” the court imposed an opini on on the type of evidence to be elicited. 1 Counsel explained that he was trying to show that B.M. did not enter defendant’s

a partment as she had testified. The court reversed itself and allowed counsel to continue his questioning during redirect

. On re direct, counsel did not ask any fu rther questions regarding the details of where B.M. played o utside defendant’ s apartment

. On appeal, defendant argues that the court’s statement that counsel was focusing
on minutia e constituted judicial misconduct depriv ing defendant of his right to a fair trial.
Defendant argues that the court suggested to jurors h is “defense rested on trivia.”
Defendant further argues that “[t]he effect of characterizing the defense as trivia was to denigrate appellant’s case by sugge sting it was of minimal value and carried littl e weight.” Defendant’s premise is incorrect. The court made no comment about defendant’s
defense or the evidence in the case. The court simply told counsel that the location of where B.M. played on the stre et was minutia not probative of any material issue. The court was correct. Counsel had elicited testimony that according to defendant, B.M. never entered her apartment. That was the critical evidence, which if credited would
rebut B.M.’ s testi mony. Whe re B.M. played on the street was not probative of any material fact. Even after the court allowed defense counsel to further probe the issue,
counsel did not ask any additional questions. Similarly, d efendant’s argument that the court’s comment impugned defense counsel’s integrity is not supported by the record. The court made no comment about defense counsel and did not question counsel’s integrity. The court simply questioned the need for identifying the specific place outside defendant’s apartment wh ere B.M. was playing. As noted, whether B.M. was in the yard, on the sidewalk, o r on the street is
irrelevant.

1 Defendant did not forfeit the claim of error because he argued it in the trial court and moved for a mistrial

.5

The court has “both the duty and the discretion to control the conduct of the
trial

. . . . ” ( People v. Blacksher (2011) 52 Cal.4th 769, 824.) Here the court did nothing
more than control the admission of irrelevant evidence. 2 The court did the same thing on

numerous occasions with the prosecutor
, belying d efendant’s suggestion that the court created the appearance of allying itself with the p rosecution. 3 Defendant’s argument that the court “cast[] the defense case as frivolous and weak in contrast to the prosecutio n ’s ”
has no basis in the record.
2. Alleged Prosecutorial Misconduct Defendant argues that the prosecutor co mmitted misconduct. “ ‘ The standards governing review of misconduc t claims are settled. “ A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require
reversal under the federal Constitution when th ey infect the tr ial with such ‘ “ unfairness as to make the resulting conviction a denial o f due process. ” ’ [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. ” [Citati on.] “ In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for

2 Defendant’s reliance on cases in which the court commented on the defense is not helpful, because here the court did not comment on the defense . For example, d efendant relies on People v. Sturm (2006) 37 Cal.4th 1218, 1231, in which the tri al court told jurors that first degree murder was a “ ‘gimme here.’ ” (Italics omitted.) In contrast to Strum , the court’s request counsel move on cannot reasonably be understood as commentary on defendant’s defense

. 3 The trial court sustained its own ob jection under Evidence Code section 352 to the prosecutor’s question of B.M. wheth er she typically wore pajamas. The court asked the prosecutor to w rap up her questioning of B.M. When the prosecutor questioned the forensic nurse, the court told her “you c an move on” three times. The court sustained its own objection to the prosecutor’s efforts to introduce B.M.’s prior consistent statement when questioning a deputy sheriff. When the prosecutor questioned the detective who interviewed defendant, the cour t told the pro secutor to “get to the point.” The court sustained its own objection to the prosecutor’s question of the detective regarding why suspects minimize their conduct and asked the prosecutor to “move on. ”6

review. ” [Citation.] When a claim of misco nduct is based on the prosecuto r ’ s comments before the jury, “ ‘ the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained

- of remark s in an objectionable fashion. ’ ” [Citation.] ’ ” ( People v. Gonzales ( 2012) 54 Cal.4th 1234, 1275.)

a. Alleged Prejudicial Misconduct in the Prosecutor’s Closing Argument Additional background is necessary to analyze defendant’s argument that the prosecutor committed misconduct when she argued that B.M. was angry and juror s also should be angry about defendant’s conduct.
i. Background During closing argument, t he prosecutor argued: “You heard from [B.M.] and very reasonably so she is angry. Over and over again she said how angry she is. Is she faking tha t anger? Where would she come up with such an emotion like I’m angry. She’s angry because she got violated. She should be angry and I’m angry. ” Defense counsel objected and the court sustained the objection. The prosecutor then argu ed “You should be angry” and the c ourt sustained defense cou nsel’s objection. During his closing argument, defense counsel responded, “For the first two minutes or so of counsel’s argument you’ll notice it was designed to try to elicit all your emotions to try to get you a ngry, besides be ing improper.” The court sustain ed an objection.
Defense counsel continued: “It is something that should not even delve into your minds. T hese cases are re ally difficult. Sex cases are always difficult because of the nature of the case itself. Typica lly in these types of cases emotions run really high. Emotions with the victims, with family members and even emotions elicited by the prosecution. You yourself have probably felt some of that emotion. When emotions run really high, there’s a real dange r that you as jurors compromise your ability to be fair. There is a real danger that you’ll allow those
emotions to take over, to take over the ability to use reason and common sense.

“ I’ m asking you at this point in time, before you go back into that ro om to deliberate , to forget about those emotions. This is not a case about being emotional. This7

is not a case where you should actually look and get angry about anyt h ing. You have to basically look at the facts and analytically approach the law and mak e a decision based

on that, not based on emotion. “This case is about being fair. It is not about the color of my client’s skin or the language he speaks. It is not about the nature of the allegation or any unpleasantness that it might conjure up. [ ¶ ]

. . . [ ¶ ]

“ Certainly your j ob is not to convict my client simply because you feel an emotional bond to the victims or an emotional bond agains t my client. Your job is to be
f air and just and consider all the evidence that was submitted to you. ”
ii. An alysis “[A] n appeal for sympathy for the victim is out of place during an objectiv e determination of guilt.” ( People v. Stansbury (1993) 4 Cal.4th 1017, 1057, overruled on another ground in Stansbury v. California (1994) 511 U.S. 318
, 325

- 326; see also P eople
v. Vance (2010) 188 Cal.App.4th 1182, 1198

- 1199 .) The prosecutor should not have argued that the jurors should be angry. It “invited the jury to depart from their duty to
view the e v iden c e objectively, and instead to view the case through the eyes of the
victim

. ” ( People v. Fields (1983) 35 Cal.3d 329, 362.) Respondent’s argument that the prosecutor actually meant “ on e ” should be angry instead of “you” should be angry is not helpful because even th e argument that “one” should be angry constitutes an appe al for sympathy to the victim. We need not decide whether the prosecutor’s argument rose to the le vel of prosecutorial misconduct because
, under the facts of this case the prosecutor’s argument was harmless beyond a reasonable doubt. The evidence in this case was overwhelming. B.M. described the incidents of sexual penetration in detail distinguishing between each incident, and defendant admitted to two of the five incidents. Defendant’s subsequent explanation that he was cold , tired, and afraid was not credible and would not have been rendered more credible had the prosecutor refrained from making the challenged argument. Defense counsel eloquently argued that the jurors should focus on the evidence in the case, not their emotions
, and the court instructed jurors as follows: “Do8

not let bias, sympathy, prejudice, or public opinion influence your decision

. ” We must presume the jury followed its instructions. ( People v. Doolin (2009) 45 Cal.4th 390, 445.) Thus, even assuming the argument consti tuted misconduct, it was not prejudicial
and does not warrant reversal. (See People v. Sanders (1995) 11 Cal.4th 475, 527 [assumed misconduct in appealing to prejudices of jurors was not prejudicial].)
b. The Prosecutor’s Rebuttal Argument
Defendant’s c hallenge to the prosecutor’s rebuttal argument requires summarizing portions of defendant’s closing argument and portions of rebuttal

. During closing argument, defense counsel argued: “We know Mario [Ortega] doesn’t hear m y client say, ‘lay down next to me.’ Yet we do not ha v e his testimony concerning that. N o corroboration whatsoever about what happened. [ ¶ ] To accept [B.M.] ’s version of the story, ladies and gentlemen, is to accept only one of two plausible conclusions : one, either Mario was a part icipant in the molestation, or, two, it just didn ’t happen. It didn’t happen.” Counsel continued: “ [T] hink about it
, ladies and gen t le men

. . . . On two of
those occasions when this was happening, we have a perfect witness sitting there who
could corrob orate what happened, but, yet, where is that witness testifying about t his? It just did not happen.” In response to defense counsel’s argument that Ortega, who was present during the abuse was not asked about it, the prosecutor argued that Ortega “was br ought in here and, guess what, subject to cross

- examination. Why didn’t counsel cross

- examine him on all the points he just raised? I brought him in. He was there. Counsel declined to ask a single question and is saying that he

— we didn’t elicit this in formation. He was a
witness. Guess what? I g et to ask direct and he gets to ask cross

- exam. That’s the system. Counsel didn’t ask one single cross

- examination question.” Defense counsel objected and the court sustained the objection. The prosecutor continued: “Why wasn’t Mario [Ortega] brought in, in [his] case in chief? Well, I didn’t know that the defendant was going [to] take the stand and lie. And like I said, that witness was brought in and made available to the defense for all the9

questions he could have wanted to ask.” Defense counsel objected and the court
instructed the prosecutor to “ [ m ] ove on.” After argument defense counsel moved for a mistrial claiming that the prosecuto r was trying to shift the burden of proof to the defense. The c ourt denied the motion. On appeal, defendant argues the prosecutor committed prejudicial misconduct warranting
reversal. We disagree. “[I]t is neither unusual nor improper to comment on the failure to call logical witnesses.” ( People v. Gonzales
, supra , 54 Cal.4th at p. 1275.) The prosecutor’s argument, which directly responded to defense counsel’s argument, was a comment on the failure to call or question Ortega ; it did not shift the burden of proof. (See People v. Frye (1998) 18 Cal.4th 894, 973, ov erruled on another ground in People v. Doolin
, supra , 45 Cal.4th at p. 421
, fn. 22.) Moreover, it directly responded to defense counsel’s argument suggesting that the prosecution should have asked Ortega certain questions.
Defendant demonstrates no misco nduct from the prosecutor’s rebuttal argument

. DISPOSITION The judgment is affirmed.

FLIER, J.
WE CONCUR:

RUBIN, Acting P. J.

GRIMES, J.