People v. Guinn

1

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DAVID GUINN, Defendant and Appellant.

F085404

California Court of Appeals, Fifth District

March 13, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tuolumne County, No CRF66266 Douglas C. Boyack, Judge. (Retired Judge of the Tuolumne County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

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

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

Joseph David Guinn, appellant, argues prosecutorial misconduct when the prosecutor, during closing argument, referred to statements made by potential jurors. Appellant further argues the trial court improperly relied on aggravating factors not found true by a jury when imposing an upper term. We affirm the conviction but vacate the sentence and remand the instant case for resentencing pursuant to Penal Code section 1170 subdivision (b).^[1]

PROCEDURAL HISTORY

On May 7, 2021, in a complaint deemed an information, the Tuolumne County District Attorney charged appellant with two counts of lewd acts upon a child under the age of 14 (§ 288, subd (a)). The information further alleged appellant had a prior serious or violent felony conviction from 2015^[2] and prior sexual assault convictions against minors, precluding him from receiving probation.^[3]

Appellant admitted the prior conviction allegations in the information. Following a jury trial, appellant was convicted of one count and acquitted of one count of violating section 288 subdivision (a).

On January 27, 2023, the trial court sentenced appellant to the aggravated term of eight years, doubled pursuant to his prior strike conviction on count I, and five years for his prior prison term, for a total of 21 years.

STATEMENT OF FACTS

On April 11, 2021, appellant encountered John Doe, who was 12 years old at the time, at a family function in a park. Appellant was a guest of Doe's relative.

At the park, appellant made comments to Doe, which made Doe uncomfortable, about "trying to get with [Doe's] cousin." Later, when the family convened at their home, appellant asked Doe about the length of his penis and made comments that he wanted to "hook up" with Doe, but that he was underage. Appellant then grabbed Doe's penis over his clothing.

Doe told his mother about appellant's conduct, and Doe's mother went to confront appellant. The police were called and ultimately detained appellant at the family home. In an "in-field show-up," Doe identified appellant as the person who had touched him.

DISCUSSION

I. The Prosecutorial Misconduct Claim is Forfeited, and Error, If Any, was Harmless

Appellant argues that in closing argument, the prosecutor made various references to statements made by prospective jurors during jury selection about their personal experiences with sexual abuse. Appellant contends these references amounted to prosecutorial misconduct. Appellant further argues that defense counsel's failure to object to these statements amounted to ineffective assistance of counsel. We find the issue forfeited, and the error, if any, harmless.

A. Background

During jury selection, several prospective jurors recounted their personal experience with sexual assault. One juror stated he had an 11-year-old niece who was molested about 12 years prior. Another juror worked with a child in kindergarten who was abused. A third juror was abused and did not report it. Another juror stated she was also abused, and she believed it was "partly [her] fault."

In closing, the prosecutor presented the following arguments:

"Counsel, ladies and gentlemen of the jury, there's a couple of what I would call truths that I think anybody in modern day times could agree on.

"One of them is that child molest, lewd acts, they happen, more often than we like to think. And you got a piece of that when the jury was selected and people recounted their experiences. Child molest happens. Grown men touch young boys. [¶] ... [¶]

"You know that John Doe told his mom pretty quick. Okay. We already talked about that. There's people that came into this courtroom for this jury trial that had been molested and hadn't told anybody or at least never reported it, so you know that happened. The fact that [John Doe's sister] empowered him or encouraged him-unless you're going to go down the route of this is some kind of conspiracy, it doesn't make any difference what made him finally say. If his sister had to say, you know, 'Boys can be the victims of sexual molest too,' well, we know that. We also know that men react differently or boys react differently. So why he came forward, I submit to you, is not a sign of any conspiracy. [¶] . . . [¶]

"I mean, John Doe told you that he didn't think that-that men or males could be victims of this. Just like there were people who said, 'I was abused and I was partially at fault.'

"Wow. Someone gets abused and they think they're-because they were at the wrong place at the wrong time. No, no, no, no, no.

"And males can be abused. And it took [John Doe's sister] to tell him."

Appellant did not object to the above arguments.

B. Legal Standard

" 'A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.' [Citation.] 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. Lopez (2008) 42 Cal.4th 960, 966.)

"' "The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]"' [Citation.] Additionally, '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.'" (People v. McCullough (2013) 56 Cal.4th 589, 593.)

" 'The lack of a timely objection and request for admonition will be excused only if either would have been futile or if an admonition would not have cured the harm.'" (People v Hoyt (2020) 8 Cal.5th 892, 942-943.) "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.] [¶] When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)

Alternatively, "[i]n order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶] ... under prevailing professional norms.' [Citations.] 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.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Ledesma (2006) 39 Cal.4th 657, 745-746.)

C. Analysis

Appellant argues the prosecutor's reference to prospective juror statements during closing arguments amounted to a violation of both state law and his federal due process rights. Appellant asserts that the prosecutor's argument suggested Doe's testimony was credible based on facts not in evidence.

Primarily, we find appellant's failure to object to the prosecutor's statements forfeited the issue on appeal. (People v. Lopez, supra, 42 Cal.4th at p. 966.) Appellant has not shown that an objection would have been futile or an admonition would not have cured the alleged harm. (People v. Hoyt, supra, 8 Cal.5th at pp. 942-943.) We further find no state law or federal due process violation, nor ineffective assistance of counsel, because the error, if any, was harmless.

A prosecutor's statements that are attributable to a specific prospective juror can amount to misconduct. (People v. Freeman (1994) 8 Cal.4th 450, 517-518 ["If counsel should not address individual jurors by name, they should similarly not quote individual jurors."]) However," 'it does not...