Filed 1/15/14 P. v. Perez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047463

         v.                                                            (Super. Ct. No. 11HF2313)

OSCAR D. PEREZ PEREZ,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
                   Siri Shetty, 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, Erica A. Swenson and
Laura A. Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
               A jury convicted Oscar D. Perez Perez (defendant) of 22 counts of lewd
acts with a child under the age of 14 (Pen. Code, § 288, subd. (a)),1 four counts of lewd
acts with a child under the age of 16 (§ 288, subd. (c)(1)), and found true allegations
defendant committed sex crimes with multiple victims under the One Strike law
(§ 667.61, subds. (b), (c), (e)(5)). The trial court sentenced him to an indeterminate term
of 330 years to life.
               Defendant’s sole challenge to the judgment is that the prosecutor
committed prejudicial misconduct during closing argument. We find the contention
meritless and affirm the judgment.
                                           FACTS
               Defendant does not challenge the sufficiency of the evidence thus the facts
may be briefly stated. From 2007 until his arrest in 2011, defendant, a priest at a Laguna
Hills church, molested several young boys who volunteered to be “ministers” at various
church services. The boys said defendant committed acts of sodomy, oral copulation,
touching and rubbing penises, theirs and defendant’s, and open-mouthed kissing. The
acts of molestation usually occurred when the boys stayed overnight at defendant’s home,
although the boys also said they were uncomfortable when defendant would hug and kiss
them on each cheek as a form of public greeting.
               After his arrest, defendant initially denied any misconduct. However, he
later admitted touching the penis of two of the victims, but claimed he did so for the sole
purpose of advising their mothers about circumcision. He also admitted to kissing one of
the victim’s on the lips and that doing so had not been sensible.
               Five boys testified at trial, and defense counsel thoroughly cross-examined
each boy. Defendant called a girl who had also been a minister in the church to testify
that one of the victims seemed angry and upset the night before defendant’s arrest.


       1   All further statutory references are to the Penal Code.

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Defendant also called an investigator to testify one of the boys had disputed the accuracy
of a police report, and the victim’s initial statements that defendant had not touched him
in an inappropriate manner.
              Defense counsel argued his client had engaged in “noncriminal conduct”
that had been “transformed” into criminal conduct by hysteria and the undue influence of
police investigators. Defendant either denied committing the acts, or denied having the
requisite intent during the commission of those acts, and he challenged the sufficiency of
the evidence to prove otherwise.
                                      DISCUSSION
              During closing argument, the prosecutor focused on the circumstantial
evidence of defendant’s intent before discussing reasonable doubt and witness credibility.
When the prosecutor discussed one particular victim, a boy who testified defendant
performed the funeral service for his late father and admitted being angry with defendant,
she said, “This is a 14 or 15-year-old whose dad is dead, the defendant did the service for
his dad, and he’s totally confused because this man is molesting him, and now we’re to
expect that he’s supposed to not be around the defendant and protect other boys like he’s
some super figure in our movies? That’s not real life. He’s allowed to be mad at the
defendant. [¶] You know, where is the part in this case where we’ve heard this is how a
sexual assault victim is supposed to act, this is what they’re supposed to do? That’s why
I talked about that in jury selection, ‘Are you going [to] have preconceived notions of
what someone is supposed to do?’ We heard a woman in jury selection say, ‘I’m just
disclosing right now, I was raped.’ She said that. So we’re supposed to put a definition
on victims?” (Italics added.) A defense objection on grounds the prosecutor made an
“improper argument” was overruled.
              On appeal, defendant contends the above-italicized portion of the
prosecutor’s argument constitutes improper vouching for the credibility of a witness
and/or improper references to matters outside the record. We disagree.

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               “‘Under California law, a prosecutor commits reversible misconduct if he
or she makes use of “deceptive or reprehensible methods” when attempting to persuade
either the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not result in the denial
of the defendant’s specific constitutional rights . . . but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action “‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”
[Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
               “If a prosecutorial misconduct claim is based on the prosecutor’s arguments
to the jury, we consider how the statement would, or could, have been understood by a
reasonable juror in the context of the entire argument. [Citations.]” (People v. Woods
(2006) 146 Cal.App.4th 106, 111.) “‘“[A] prosecutor is given wide latitude during
argument. The argument may be vigorous as long as it amounts to fair comment on the
evidence, which can include reasonable inferences, or deductions to be drawn therefrom.
[Citations.] It is also clear that counsel during summation may state matters not in
evidence, but which are common knowledge or are illustrations drawn from common
experience, history or literature.” [Citation.]’” (People v. Ward (2005) 36 Cal.4th 186,
215 (Ward).)
               While a prosecutor may not vouch for the credibility of witnesses or
otherwise bolster the veracity of their testimony by referring to evidence outside the
record, “‘so long as a prosecutor’s assurances regarding the apparent honesty or
reliability of prosecution witnesses are based on the “facts of [the] record and the
inferences reasonably drawn therefrom, rather than any purported personal knowledge or
belief,” [her] comments cannot be characterized as improper vouching. [Citations.]’
[Citation.]” (Ward, supra, 36 Cal.4th at p. 215.)



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               Here, the prosecutor’s argument regarding the credibility of sex crime
victims who do not immediately report the crime did not amount to improper vouching.
The prosecutor did not suggest her belief in the victims’ credibility was based on any
facts outside the record or her own personal knowledge. (Compare People v. Turner
(2004) 34 Cal.4th 406, 433 [prosecutor referred to his prior experience with the
witnesses].) In the context of her argument, it was clear the prosecutor was referring to
the difficult task of assessing the credibility of sexual assault victims in general, not that
one particular victim was any more or less credible because of delayed reporting. Thus,
the prosecutor “properly relied on facts of record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief. [Citations.]” (People
v. Medina (1995) 11 Cal.4th 694, 757.)
               As indicated by the California Supreme Court, a prosecutor may state
matters not in evidence that are common knowledge or are illustrations drawn from
common experience. (People v. Stanley (2006) 39 Cal.4th 913, 951-952) In this case,
the prosecutor relied on an example common to all members of defendant’s jury to
illustrate her point. Under the circumstances, the prosecutor’s reference to what had
occurred during voir direct does not amount to misconduct.
               Defendant’s reliance on People v. Woods (2006) 146 Cal.App.4th 106
(Woods) and People v. Hall (2000) 82 Cal.App.4th 813 (Hall), is misplaced. In Woods,
the prosecutor committed numerous instances of misconduct in closing argument by
implying that 12 unidentified, mostly non-testifying police officers, would testify to the
same facts as the officers who did testify. (Id. at p. 115.) Thus, the prosecutorial
misconduct involved in Woods was pervasive and involved affirmative representations by
the prosecutor concerning the substance of testimony and facts outside the record, not
merely an example designed to assist the jury make a judgment regarding witness
credibility.



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              In Hall, supra, 82 Cal.App.4th 813, a police officer testified that he and his
partner had arrested the defendant for being under the influence of cocaine, and then
found cocaine in the defendant’s pocket when they searched him. (Id. at p. 815.)
Defense counsel challenged the testifying officer’s credibility and pointed out that the
officer’s partner had not been called as a witness. (Id. at p. 816.) In rebuttal, the
prosecutor argued the partner’s testimony would have been “repetitive.” (Ibid.) Thus, in
Hall, as in Woods, the prosecutor in effect told the jury that “the witness, if called, would
have testified exactly as Officer Williams did, in a manner favorable to the prosecution.”
(Hall at p. 817.) By contrast, the prosecutor here merely used something that occurred
during voir dire as an admonition against the notion that all sexual abuse victims who
wait to report the crime are inherently unreliable.
              Moreover, the trial court instructed the jury nothing the attorneys say
during opening and closing argument is evidence (CALCRIM No. 104), and we presume
jurors are intelligent people capable of understanding the instructions and applying them
to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130.)
              Finally, even if we were to assume misconduct occurred, defendant cannot
establish any prejudice. The People bear the burden of proving beyond a reasonable
doubt that misconduct did not contribute to the verdict. (Woods, supra, 146
Cal.App.4th at p. 117.) As explained above, the evidence defendant committed the
charged crimes was overwhelming. It is inconceivable the prosecutor’s brief reference to
statements made by a potential juror during voir dire had any effect on the verdict.




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                                 DISPOSITION
            The judgment is affirmed.




                                            THOMPSON, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.




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