Opinion
G048137
2013-10-17
THE PEOPLE, Plaintiff and Respondent, v. VALENTIN AGUILAR, Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09CF2380)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
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Valentin Aguilar was convicted of seven counts of lewd acts on his daughter, who was 11 or 12 years old at the time. He was also convicted of one count of an attempted lewd act on her. He was acquitted of having used a knife during the commission of the lewd acts. His overall sentence was 18 years.
Aguilar raises but a single issue in this appeal: He claims the prosecutor, in closing argument, improperly reversed the presumption of innocence. The basis for this contention is this passage from the argument: "The presumption of innocence. This is where I want to start. This is where we started with jury selection. What does it mean? Well, you can't consider the fact that he has been charged as evidence of guilt. The judge told you that repeatedly when we were selecting a jury. He has a right to a fair trial. We talked about that. Absolutely a fair trial is his right. [¶] What this does, this presumption, is it puts the burden on this side of the table. It states that the People must prove their case beyond a reasonable doubt. I would submit to you that that presumption is now gone because the trial is over and we have proven each and every element of these crimes so that you can return a verdict of guilty."
Aguilar's argument is not persuasive. Occasionally, prosecutors do get a little carried away with the perceived strength of their case and want to declare victory by telling the jury they have already carried their burden of proof in the trial, thus rebutting the presumption that controlled the case at the beginning of the trial. Such boasts to the jury may be inelegant, but they do not constitute prosecutorial misconduct, as established first in People v. Goldberg (1984) 161 Cal.App.3d 170, and most recently reiterated by our Supreme Court in People v. Booker (2011) 51 Cal.4th 141.
In Goldberg, the prosecutor's declaration of victory consisted of this statement: "'And before this trial started, you were told there is a presumption of innocence, and that is true, but once the evidence is complete, once you've heard this case, once the case has been proven to you - and that's the stage we're at now - the case has been proved to you beyond any reasonable doubt. I mean, it's overwhelming. There is no more presumption of innocence. Defendant Goldberg has been proven guilty by the evidence. Thank you.'" (Goldberg, supra, 161 Cal.App.3d at p. 189.) The Goldberg court held that the comment was not misconduct. The prosecutor was merely restating "albeit in a rhetorical manner," the otherwise noncontroversial point that a defendant is presumed innocent "'until the contrary is proved.'" (Ibid.)
Comparing the two, we find the prosecutor's comment in the case before us to be, if anything, less likely to mislead the jury than the comment that passed muster in Goldberg. Here, the prosecutor's statement the "presumption is now gone because the trial is over" emphasized the prosecutor's rhetorical point that he had already proved the contrary of the innocence presumption by the end of the trial.
A more recent Goldberg variation is to be found in Booker. There, the prosecutor told the jury: "I had the burden of proof when this trial started to prove the defendant guilty beyond a reasonable doubt, and that is still my burden. It's all on the prosecution. I'm the prosecutor. That's my job. [¶] The defendant was presumed innocent until the contrary was shown. That presumption should have left many days ago. He doesn't stay presumed innocent." (Booker, supra, 51 Cal.4th at p. 183, italics added.) The Supreme Court rejected a contention of prosecutorial misconduct, stating: "Although we do not condone statements that appear to shift the burden of proof onto a defendant (as a defendant is entitled to the presumption of innocence until the contrary is found by the jury), the prosecutor here simply argued the jury should return a verdict in his favor based on the state of the evidence presented." (Id. at p. 185.)
The same again can be said here, and again the comment here is, if anything, more innocuous than the one that withstood challenge in Booker. The comment in Booker focused on a time-frame in the middle of the trial, while evidence was still being presented, whereas here the prosecutor was rooting the jury in the "now" - when all the evidence had closed.
Aguilar attempts to distinguish Goldberg (he doesn't mention Booker) on the theory that in Goldberg the prosecutor was simply saying the presumption of innocence continues until the jury decides otherwise, but here the prosecutor's comment "cannot be read that way." Au contraire. We believe the prosecutor's comments here were more focused on the "now" of jury deliberation than the comments in Goldberg and Booker.
We will add in passing that even any arguable error was wholly harmless even under the harmless-beyond-a-reasonable-doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. Appellate defense counsel is to be commended for presenting an honest and complete summary of the evidence against Aguilar, but it must be admitted it is not a pretty picture. There was evidence from the victim that Aguilar touched her breasts more than 10 times, touched her vagina one time, masturbated in front of his daughter on two occasions, and once put on a pornographic movie in her room and told her to look at it. Moreover, the fact the jury rejected the allegations that Aguilar used a knife in these molestations does not cast doubt on the molestations themselves, but does confirm the jury was in no way misled by the prosecutor's "presumption is now gone because the trial is over" remark.
Accordingly we affirm the judgment. But, like the Supreme Court in Booker, we would add that prosecutors would do well to avoid the sort of premature declarations of victory that generated the appeals in Goldberg, Booker, and now here.
BEDSWORTH, J. WE CONCUR: RYLAARSDAM, ACTING P. J. ARONSON, J.