Filed 5/22/20
                CERTIFIED FOR PARTIAL PUBLICATION*

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FIRST APPELLATE DISTRICT

                              DIVISION THREE


THE PEOPLE,
  Plaintiff and Respondent,
                                            A157186
v.
                                            (City and County of San Francisco
RAFAEL DUARTE-LARA,                         Super. Ct. No. SCN228229)
  Defendant and Appellant.


       Rafael Duarte-Lara (defendant) was convicted of the felony offense of
sexual penetration with a foreign object of a minor 14 years or older
accomplished by force, violence, duress, menace, or fear of bodily injury.
(Pen. Code § 289, subd. (a)(1)(c)1.) He was sentenced to the lower term of six
years in state prison.
       Defendant challenges his conviction on two grounds: (1) the trial court’s
refusal to instruct the jury on the defense of reasonable and good faith belief
in consent (CALCRIM No. 1045); and (2) remarks made during the
prosecutor’s closing arguments. Defendant challenges his sentence on the
basis that the court imposed fines and assessments without determining his



*
  Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of Part II and Part III of
the Discussion.
1 All further statutory references are to the Penal Code.




                                        1
ability to pay. As defendant’s challenges to his conviction and sentence are
either without merit or not preserved for appellate review, we affirm.
              FACTUAL AND PROCEDURAL BACKGROUND
         In 2017, defendant sexually assaulted a 16-year-old female relative by
penetrating her vagina with his finger. The People’s case consisted of two
days of testimony from three witnesses—the victim and two family members
to whom the victim reported the sexual assault within an hour of its
occurrence.
         The victim described her family circumstances, living arrangements,
and relationship with defendant. She had known defendant her entire life
and called him her uncle, even though he was actually her second cousin.
Defendant was around the same age as her father and about five inches taller
than the victim. In the two years leading up to the incident, and at the time
of the incident, the victim was living in her father’s apartment with
defendant and other family members. Because she did not get along with her
father, defendant was a “father figure” to her. Defendant talked to the victim
every day, asked if she was hungry or needed a ride to school, and gave
her money when she needed it for school.
         On the evening of the incident, the victim took a shower and went to
her bedroom, where she put on a large tee shirt and sweatpants and got into
bed. Defendant came into the room for some keys. He took the keys, left the
room, and returned about five minutes later. By the time he returned, the
victim had taken off her sweatpants and was under the blankets ready to
sleep.
         Defendant confirmed with the victim that she needed money for school.
He put a $100 bill on the nightstand and told the victim to use $20 and
return the rest. The victim said she was going to sleep, and they hugged



                                         2
goodnight. The victim felt “uncomfortable” as the hug lasted much longer
than usual and defendant was “kind of holding on.” Defendant asked if she
wanted a back massage. His mother often gave the victim a shoulder
massage, and the victim thought defendant wanted to give her a massage
because he knew she been asking for one from his mother. She replied,
“ ‘[N]o, I’m okay.’ ” When defendant “insisted on giving” the victim a
massage, repeatedly saying, “ ‘I’ll give you one. I’ll give you one,’ ” the victim
said “ ‘Fine’ ” and flipped onto her stomach. She thought he would give her a
normal back massage like his mother would and she trusted him.
      While standing over her, defendant proceeded to massage her
shoulders with light pressure. As he moved his hands toward her lower back,
he asked if she “liked it.” The victim responded, “ ‘Huh-uh,’ ” meaning,
“ ‘No,’ ” because he was moving his hands towards her lower back. Defendant
moved his hands lower, brushing her buttocks and massaging her thighs. He
again asked her if she liked it, and she again responded “ ‘Huh-uh.’ ” At that
point, she felt worse and “went like into shock, basically.” Defendant
returned to her buttocks and massaged her there for 30 seconds, again asking
if she “liked it.” She again responded, “ ‘Huh-uh.’ ” Defendant then pulled
the victim’s underwear down. She wondered why this was happening, was
afraid, and she did not know why she did not scream or stop him. Defendant
asked the victim if she needed new underwear and said he would buy them
for her, to which she did not respond. He again asked her if she like it and
she responded, “ ‘Huh-uh.’ ” Defendant did not push or hold her down but she
continued to be in fear.
      After removing her underwear, defendant touched her buttocks, asking
her if she liked it and again she responded, “ ‘Huh-uh.’ ” The victim felt like
she was in shock, “frozen.” Defendant then touched her vaginal area,



                                         3
repeatedly asking if she liked it, and repeatedly receiving the response,
“ ‘Huh-uh.’ ” He then inserted his finger into the victim’s vagina for five to
ten seconds. At that point he told her to turn over. The victim pulled up her
underwear, rolled away from defendant, sat up and said, “ ‘No.’ ” She had
wanted to move away earlier but her “body was in shock.” After she said no,
he did not touch her again, told her good night, and tried to hug her but she
did not hug him back.
      Defendant made the victim promise not to tell anyone what had
happened and said the victim could keep the money he had left on the
nightstand. Once he left the bedroom, the victim locked the door, got
dressed, and then quietly left home so as to avoid waking anyone. She felt
she had to tell someone what happened because otherwise defendant might
continue to abuse her or someone else. She took a bus to her grandfather’s
home in San Francisco and arrived at the door crying uncontrollably and
unable to speak. Eventually, she was able to tell her cousin’s mother
that “her uncle had touched her in her private area.” The victim then called
her mother, who in turn called the police. The victim spoke to the police and
went to the hospital.
      Defendant did not testify or present any witnesses. He challenged the
prosecution’s case through cross-examination, eliciting testimony that the
witnesses did not know him to be angry, violent, or threatening and instead
knew him as an easygoing person who was the “life of the party.”
                                   DISCUSSION
I.    The Trial Court Did Not Err in Refusing to Instruct the Jury on
      the Defense of Reasonable and Good Faith Belief in Consent
      (CALCRIM No. 1045)

      Defendant contends the trial court erred in refusing to instruct the jury
on the defense of reasonable and good faith belief in the victim’s consent


                                        4
under People v. Mayberry (1975) 15 Cal.3d 143 (hereinafter referred to as the
Mayberry instruction or defense; CALCRIM No. 1045). We see no merit to his
claim of error.
       A. Relevant Facts
      During the jury instruction conference, defendant asked the court to
give a Mayberry instruction, which would allow the jury to find defendant not
guilty of criminal sexual penetration if he had a reasonable and good faith,
albeit mistaken, belief the victim consented to his sexual conduct. Defense
counsel argued that the jury could find, based solely on the victim’s
testimony, that her conduct led defendant to believe that she had consented
to sexual penetration.
      The trial court denied the request for a Mayberry instruction because
there was “no evidence that . . . shows that she actually consented, or that
she did anything that would give a reasonable person the belief that he could
do what he’s charged of doing. [¶] There was no equivocal conduct on the
part of [the victim] that would cause a reasonable person to believe that they
could, at that point, insert their finger in her vagina. [¶] . . . [¶] The fact she
didn’t say, ‘No, stop’ is not evidence of equivocal behavior that would give
permission to do what was done to her.” Defense counsel responded by
urging the court to consider the acts prior to the sexual penetration.
Specifically, and according to the victim, defendant massaged various parts of
her body including intimate areas without the victim ever clearly saying “No”
or “Stop” or physically moving away from defendant. “I think the totality of
circumstances would give a reasonable person the belief she is consenting.”
The court replied that defense counsel’s “reasonable person is somebody I do
not know.”




                                         5
      The court went on to explain that, contrary to defense counsel’s
recitation of the facts, the victim had not been silent: “She said, ‘No’ every
time he asked her, ‘Are you enjoying yourself?’ [¶] Or she said, ‘Huh-uh,’
indicating ‘no.’ . . . . [¶] Everything . . . cited [by defense counsel] is passive.
Passive in a situation that happened in a very short time period. [¶] This
wasn’t a very long event – 30 seconds, 15 seconds. . . . [¶] She was basically
froze[n], according to her own testimony . . . . [¶] . . . [¶] Her passivity, if
that’s the right word, or inaction, is not consent. . . . [¶] I’ve looked at the case
law. [¶] . . . [¶] . . . [I]n all these cases, there’s some . . . affirmative equivocal
conduct which . . . imparted a reasonable belief on the defendant that they
were consenting to the next act. [¶] And I don’t see the point where that
happened in this case. [¶] You said in your opening statement . . . that . . .
defendant . . . believed there was a ‘moment.’ [¶] . . . [¶] He didn’t testify, so
I don’t know what that ‘moment’ was; but I certainly didn’t hear it from the
witness that at any time she did anything to give him the green light to put
his fingers where he put his fingers. [¶] So I don’t think there’s substantial
evidence in order to support that [instruction].”
      Following further argument, the court again explained that the focus
was on reasonable belief: “[T]here’s no evidence of any reasonable belief. [¶]
And I do think that it’s proper to take into consideration, in terms of what is
reasonable in the situation that, in addition to having no affirmative conduct
of any type on the [victim] that would permit, or would . . . infer any consent
to this, we have a situation where this is a 16-year-old girl; this is her
[relative] who she calls Tio who is 25 years older than her, when would a
reasonable person think that, ‘I can do that.’ [¶] . . . [¶] So I think that it’s
proper to consider that. I would [make] the same ruling, even if there wasn’t
an age difference and a relationship in this situation.”



                                           6
      B. Analysis
      In Mayberry, supra, 15 Cal.3d 143, our Supreme Court “held that a
defendant’s reasonable and good faith mistake of fact regarding a person’s
consent to sexual intercourse is a defense to rape. [Citation.] Mayberry is
predicated on the notion that . . . reasonable mistake of fact regarding
consent is incompatible with the existence of wrongful intent. [Citation.]”
(People v. Williams (1992) 4 Cal.4th 354, 360, fns. omitted (Williams).)
      “The Mayberry defense has two components, one subjective, and one
objective. The subjective component asks whether defendant honestly and in
good faith, albeit mistakenly, believed that the victim consented to sexual
[conduct]. In order to satisfy this component, a defendant must adduce
evidence of the victim’s equivocal conduct on the basis of which he
erroneously believed there was consent. [¶] In addition, the defendant must
satisfy the objective component, which asks whether the defendant’s mistake
regarding consent was reasonable under the circumstances. Thus, regardless
of how strongly a defendant may subjectively believe a person has consented
to sexual [conduct], that belief must be formed under circumstances society
will tolerate as reasonable in order for the defendant to have adduced
substantial evidence giving rise to a Mayberry instruction.” (Williams, supra,
4 Cal.4th at pp. 360-361.) “[B]ecause the Mayberry instruction is premised on
mistake of fact, the instruction should not be given absent substantial
evidence of equivocal conduct that would have led a defendant to reasonably
and in good faith believe consent existed where it did not.” (Williams, supra,
at p. 362.)
      1. The Victim’s Age Did Not Preclude a Mayberry Instruction
      The People argue that the Mayberry defense was not available because
a minor is not legally able to consent to sexual conduct and thus, even if



                                       7
defendant had mistakenly believed the victim had consented, he would still
be guilty of the crime of sexual penetration of a person under the age of 18
under subdivision (h) of section 289. This argument was not raised to the
trial court.
      In support of the argument on appeal, the People rely on inapposite
cases involving possible good faith mistaken belief as to the age of a minor
victim. (In re Jennings (2004) 34 Cal.4th 254, 279; People v. Branch (2010)
184 Cal.App.4th 516, 521-522; People v. Scott (2000) 83 Cal.App.4th 784,
800.) Here, we are concerned with the request for a Mayberry instruction
based on substantial evidence of mistaken but good faith belief as to a
minor’s consent, which is an element “incompatible with the existence of
wrongful intent.” (Williams, supra, 4 Cal.4th at p. 360.)
      By enacting both the crime of forcible sexual penetration under
subdivision (a) of section 289, requiring an act to be committed against the
victim’s will or consent, as well as the crime of sexual penetration under
subdivision (h) of section 289, which makes no reference to a victim’s ability
or inability to consent, the Legislature acknowledged (as it did when it
amended the rape law to provide for forcible and statutory rape), that “in
some cases at least, a minor may be capable of giving legal consent to sexual
relations.” (People v. Tobias (2001) 25 Cal.4th 327, 333; see People v.
Hillhouse (2003) 109 Cal.App.4th 1612, 1620 [“[t]he existence of such consent,
of course, is the distinction between the crimes” of forcible and statutory
rape].) Accordingly, when a defendant such as the one in this case is charged
with forcible sexual penetration of a person 14 years or older under
subdivision (a)(1)(c) of section 289, “the jury must set aside the statutory
presumption that a person under 18 years of age is incapable of giving legal
consent and must determine whether the elements of the more serious crime



                                        8
are met” (People v. Giardino (2000) 82 Cal.App.4th 454, 467, fn. 6.), and
whether the defendant is entitled to avail himself of the Mayberry defense.
(People v. Anderson (1983) 144 Cal.App.3d 55, 60-62 [court held defendant
entitled to avail himself of Mayberry instruction against two counts of forcible
rape and two counts of forcible oral copulation on two girls 14 and 15 years of
age]; see also People v. King (2010) 183 Cal.App.4th 1281, 1317-1318
[allowing defendant to avail himself of Mayberry instruction against forcible
sexual penetration]; People v. Dillon (2009) 174 Cal.App.4th 1367, 1368
[accord]; see CALCRIM No. 1045.)
      2. There was No Substantial Evidence Supporting a Mayberry
      Instruction

      In seeking reversal, defendant focuses primarily, if not exclusively, on
whether there was substantial evidence that the victim’s actions leading up
to the sexual penetration were equivocal by evaluating whether the victim
reacted or failed to react during every step of his conduct. He also
emphasizes that it was only when he asked her to flip over that she told him
to stop, and he complied. However, we conclude the court properly
considered both the requisite subjective and objective components of the
Mayberry defense when deciding not to give the requested instruction.
      In addressing the subjective component of the Mayberry defense, the
trial court found no substantial evidence of equivocal conduct on the part of
the victim and no substantial evidence from which the jury could find
defendant reasonably and in good faith, albeit mistakenly, believed the victim
had consented to sexual penetration with a foreign object. We agree. The
parties’ relationship was one closely akin to a father and daughter or uncle
and niece. There was no evidence of a sexual relationship before that night.
Her agreement to a massage was clearly not an agreement to sexual



                                       9
touching. Rather, her testimony gives rise to only one reasonable conclusion:
that once he moved away from her shoulders she became frightened, froze,
could say nothing more than “Huh-uh” (meaning “No”), and only found an
ability to get away from him when he asked her to flip over and she was
terrified of what might happen. In this context, and as the trial court
correctly noted, the fact that the victim did not say, “No,” or “Stop,” or earlier
move away from defendant is not substantial evidence of equivocal behavior
that would lead a reasonable person to believe she was consenting to his
conduct. In other words, defendant’s “[c]riminal invasion of [the victim’s]
sexual privacy does not become [consensual] merely because the victim is too
fearful or hesitant to say something to the effect that ‘I guess you know I
don’t want you to do this?’ ” (People v. Bermudez (1984) 157 Cal.App.3d 619,
622.)
        Defendant’s reliance on People v. Andrews (2015) 234 Cal.App.4th 590
(Andrews) is misplaced. In that case, the appellate court found a Mayberry
instruction appropriate because “there was evidence – adduced through
defendant’s testimony – that the sequence of events that led to defendant’s
touching of the victim’s breast commenced with [the victim] Elizabeth’s
poking of defendant with her finger while she was in the kitchen and then
tugging on his clothes in a ‘playful manner.’ According to defendant, shortly
thereafter, Elizabeth followed him to the living room and wrapped herself
around him from behind. They then hugged. After he picked her up and they
had accidentally fallen to the floor, Elizabeth told him her leg hurt and he got
off of her. According to defendant, she then wrapped her legs around his
waist and pulled him on top of her. After defendant unbuckled Elizabeth’s
belt and unsnapped her pants, thinking that she wanted to have sex, she
placed her hands over her zipper, which defendant interpreted as her



                                        10
nonverbally telling him to stop. Not saying anything, according to defendant,
Elizabeth then pulled her shirt up over her bra. Defendant touched her
breast over her bra. Defendant testified that at the time, he did not think he
was doing anything that was unwanted. Elizabeth instructed defendant
‘ “No. Stop. Get off.” ’ She seemed angry. Defendant said he complied
immediately and Elizabeth left the apartment.” (Id. at pp. 603-604.) The
mere recitation of the scenario in Andrews demonstrates that it does not
support the giving of a Mayberry instruction in this case.
      Finally, even if defendant subjectively believed the victim consented to
the penetration of her vagina, we agree with the trial court that the evidence
of the victim's multiple and unequivocal "Huh-uh" responses to defendant's
questions leading up to the sexual penetration fails to support the objective
component of the Mayberry defense. As our Supreme Court has cautioned,
“regardless of how strongly a defendant may subjectively believe a person has
consented . . ., that belief must be formed under circumstances society will
tolerate as reasonable in order for the defendant to have adduced substantial
evidence giving rise to a Mayberry instruction.” (Williams, supra, 4 Cal.4th
at p. 361; italics added.) Here, the circumstances are not within those that
“society will tolerate as reasonable.” (Ibid.)
      In sum, we conclude the trial court did not err in refusing to instruct
the jury on the Mayberry defense. Therefore, we do not reach defendant’s
claim that the failure to give the instruction was prejudicial.
II. The Prosecutor’s Closing Argument Does Not Require Reversal
      A. Relevant Facts
      1. Trial Court’s Instructions
      Prior to closing arguments, the court instructed the jury on the law
applicable to the case. In pertinent part, the jurors were advised as follows:



                                        11
they must decide the facts based only on the evidence presented at the trial;
evidence is the sworn testimony of witnesses; nothing the attorneys said in
opening statements, closing arguments, or during the course of the trial
constituted evidence; bias, sympathy, prejudice, or public opinion could not
influence their decisions; defendant was presumed to be innocent; the People
had to prove defendant’s guilt beyond a reasonable doubt; they had to follow
the law as explained by the court even if they did not agree with it; and if the
attorneys’ comments on the law conflicted with the court’s instructions they
must follow the court’s instructions.
      The jury was asked to consider both the charged offense (sexual
penetration) and the lesser offenses of sexual battery (§243.4(e)(1)), simple
battery (§ 242), and simple assault (§ 240).
      2. Prosecutor’s Closing Remarks
      The prosecutor began her closing remarks as follows:
      “Innocent, vulnerable, and unsuspecting. [¶] That man preyed upon
an innocent, vulnerable, and unsuspecting young girl. [¶] Innocent because
she did nothing wrong or to cause this. [¶] Innocent because her mind
couldn’t even imagine that something like this would happen in her own
home. [¶] Vulnerable because she had a mother who lived an hour away.
Her dad, who had custody of her, she said the relationship was completely
broken. [¶] Vulnerable because this young girl bounced between homes,
schools, and family members, with the people tasked and obligated to protect
her not paying 100-percent attention to where she was at or what was going
on. [¶] Unsuspecting because, like she told you, she trusted him. [¶] She
had no reason to believe that this man, who she said she felt like had looked
out for her when her own father didn’t; this man who had given her rides to
school, who had made sure she had food to eat; who had given her money



                                        12
when she needed it, that he would do something like this. [¶] Unsuspecting
because she trusted the person who she went to oftentimes to cry about the
very family situation she was in.
      “But in all truthfulness, that’s why he picked her. That is how and why
this happened to her. How he selected his prey. [¶] Because people like him
don’t go after the girls whose parents are paying close attention to them, the
girls whose fathers are attentive and whose mothers are nearby. [¶] They go
after young girls like her who appear to be weak --
      “[Defense Counsel]: I’m going to object.
      “[Prosecutor]: -- and unprotected.
      “[Defense Counsel]: Assumes facts not in evidence. Objection.
      “THE COURT: The attorneys’ statement[s] are not evidence. [¶] . . .
[¶] The facts are what you determine to be the facts based on your review of
the evidence. [¶] Go ahead.”
      The prosecutor continued:
      “He didn’t see that brave and courageous young girl that we saw on the
stand last week. [¶] He saw a girl who appeared to be shy, nervous, and
insecure, like most 16-year-olds are. [¶] He saw a girl who had likely no one
to run to. Again, oftentimes she ran to him. [¶] In his mind, this was the
one person who he could probably get away with this . . . . [¶] And he
groomed her, make no mistake, the rides, the money, that was grooming. [¶]
Nothing about this situation . . . occurred at a moment’s notice in his mind.
[¶] Nothing about what happened that night was something that just came
to his mind in a matter of seconds when he walked into that room. [¶] He
was waiting. He was waiting, much like a predator stalks its prey. He was
waiting for his moment to strike. [¶] He had prepared her by gaining her
trust. He knew all of her surroundings, and he knew her home. [¶] Why?



                                      13
Because he lived there. And he waited. He waited until the moment that she
was alone in that room, at a time when everyone else practically was asleep
and no one would come to her rescue.”
      The prosecutor at this point changed topics and went on to discuss
the reasons for the victim’s reaction or responses to defendant’s sexual
conduct during the massage:
      “In jury selection, I talked to some of the jurors about whether or not
they had talked to their children about how to react or respond when
something like this happens. What they would do. [¶] And I remember
talking to the former juror . . . about whether they had talked to their
children about what to do if someone tries to touch them in an inappropriate
place. [¶] And we had some discussion about the fact that, while these
conversations take place, most of us – myself included – don’t talk to our
children specifically about family members. [¶] It wasn’t until I started
doing this work I realized that, while I may have talked to my daughter, who
is old enough to understand, about the stranger at the park or outside of her
school, that I never specifically warned her about an uncle, a cousin, or even
a grandfather who may do something like this. [¶] And for that reason, most
of our children are unprepared. They don’t know how to react when it’s
somebody trusted within the family who does something like this. [¶]
And much like our children, [the victim] was that child who was unprepared
for the night that he came into that bedroom. [¶] And like she said, she was
afraid and she couldn’t believe this was happening. And she was literally
paralyzed from it. [¶] We often think of the people who do these kinds of
things as being creepy or strange or having a particular look to them. [¶]
But the truth is, they don’t. They look normal and unassuming. They look




                                       14
just like him (indicating). [¶] They’re the last person that we would suspect
would do this. This is how they often get access to children like [the victim.]
      Defense counsel objected and was heard at side bar, which was not
reported. After the side bar, there was no instruction to the jury and the
prosecutor continued:
      “They often have jobs, and even families [] and that is how he got access
to [the victim]. [¶] The reason why we often don’t talk to our children about
family members doing these types of things is because we don’t want to rob
them of every ounce of their innocence at a moment in their life when they
should be entitled to it. [¶] But [defendant] stole [the victim’s] innocence that
night. [¶] He stole and abused her trust and belief not only in herself, but in
mankind. And in the members of her family who she should have been able
to trust. The men in her family who should have been able to protect her the
way that her father wasn’t. [¶] That is what he stole from her. [¶] And she
told you on that witness stand just how it played out.”
      The prosecutor then reviewed in great detail the victim’s testimony and
how that testimony established the elements of the charged offense. The
prosecutor asked the jury to consider that defendant was guilty of the
charged offense because he had sexually penetrated the victim by duress and
fear. The prosecutor argued that while the victim could not articulate exactly
what she feared during the massage, the jury’s job was to draw inferences
from all the evidence, and that “somebody’s pulling down your underwear
and you’re a girl, that rape could be down the line, some other form of sexual
assault.” At this point defense counsel objected on the ground the prosecutor
was assuming facts not in evidence, to which the court replied: “The
argument is not facts. The evidence is what you’ve heard and the inferences
that you can draw from it.”



                                       15
      The prosecutor then continued, without drawing further objections, by
arguing: “She wasn’t a child . . . [¶] A four- or five-year-old child may not . . .
have a concept of what sex is, what rape is. But a 16-year-old does. [¶] A 16-
year-old would have an understanding of the horrible types of things that
could come in a situation like what she was in, if you don’t comply. [¶] They
could have a fear of what’s to come and all the possibilities that follow with
that. She was old enough to have that understanding.” The prosecutor later
argued that fear of bodily injury did not just mean fear of “being beaten or
attacked,” but “can consist of a number of things, including being raped,
including being sexually assaulted.” Defense counsel did not object.
      The prosecutor began to wrap up her initial closing argument by
stating:
      “I just want to mention a few things to you, as you prepare to now
receive the defense’s closing argument. [¶] [Defense counsel], in his jury
selection line of questioning, asked . . . whether or not you would agree to
scrutinize the evidence from a critical standpoint. [¶] And I invite you to do
that, of course. That’s your job. [¶] But I also ask that you scrutinize the
defense from a critical standpoint. [¶] Be wary of attempts to minimize what
happened here . . . .
      “[Defense counsel]: Burden shifting.
      “THE COURT: You’ve been instructed on the burden of proof here, and
that the People have the burden of proving the elements of this charge.”
      The prosecutor continued:
      “And be wary of attempts to minimize the conditions under which it
happened. [¶] Also, watch out for gross misstatements of [the victim’s]
testimony. [¶] Now it was four hours of testimony, of course, right? We’re
not all gonna remember everything perfectly. [¶] And you will have the right



                                        16
and opportunity to ask our lovely court reporter to read back to you any
portion of [the victim’s] testimony that you want to hear again. [¶] But I ask
for you to watch out for gross misstatements that are designed to serve the
purpose of making this seem like she wanted it to happen, or she wasn’t
afraid -- ‘cause we all know what she told us.
      “At the end of this incident and before the defendant left the room, he
told her not to say anything. ‘Don’t tell anyone.’ [¶] And he didn’t just say,
‘Don’t tell anyone.’ [¶] He said, ‘Promise me that you won’t tell anyone.’ [¶]
He then told her that she could keep the rest of the money. [¶] So not only
did he demand her silence, but he tried to pay her for it as well. [¶] But
what she told us is that, when he told her not to tell, she knew at that
moment that she had to. Because otherwise, this would happen again. [¶]
And that’s very likely the truth. Because most often situations like this don’t
end on the first attempt.
      “[Defense counsel]: Object. That’s moving towards people’s
sympathy. [¶] Violation of the instructions, Your Honor.
      “THE COURT: Let’s stop that from there, that part of it.”
      The prosecutor then continued:
      “[The victim] found her voice that night, both in that room and after
she left it. [¶] And she found her voice in this courtroom. You heard her
voice, you saw her trauma, and you witnessed her courage. [¶] The evidence
points very clearly to one conclusion, and it’s that [defendant] is guilty of
unlawful sexual penetration.”
      3. Defendant’s Motion for Mistrial
      Following the prosecutor’s initial closing remarks, and outside the
jury’s presence, defendant made a motion for a mistrial on the ground of
prosecutorial misconduct committed during closing argument.



                                        17
      Defense counsel spoke about the sidebar conference that took place
when he objected immediately after the prosecutor’s comments about how
people look, or do not look, who commit these kinds of offenses. At sidebar,
he made an objection that the prosecutor was in violation of CALCRIM No.
200 advising the jurors that they were not to “ ‘let bias, sympathy, prejudice,
or public opinion influence your decision.’ ” Defense counsel noted the
prosecutor had referred to defendant as “ ‘those people, and what they do to
our children’ ” for approximately fifteen minutes and the comments were
improper because she urged the jurors to convict defendant in order to protect
community values, preserve civil order, or deter future law-breaking.
Defense counsel also complained that the prosecutor several times used the
word, “ ‘rape,’ ” which was never uttered from the witness stand.
      The prosecutor responded that her initial remarks set the stage for her
explanation as to why the victim had reacted the way she did under the
circumstances. She asserted the only time she used the term “ ‘rape’ ” was in
the context of danger, which is something that had to be explained in the
context of duress, and at no time was the jury asked to convict defendant to
prevent him from doing some future harm. According to the prosecutor, the
“only voice” she talked about was the victim’s voice, and the jurors were not
asked to be the victim’s voice or “a voice.”
      The court denied the motion for a mistrial:
      “I think that the arguments did not cross the line . . . . [¶] [E]ach
[statement made by the prosecutor] . . . was not . . . to invoke an irrelevant or
subjective reaction. It was tethered, tied to a specific element of the case and
applying those elements to it. [¶] I did not like . . . the reference to “ ‘rape.’ ”
And I think it was said more than once, and it was written in all-cap letters
on there [sic]. [¶] But as I heard the argument, I realized that . . . the



                                         18
purpose of the rape goes back to our . . . colloquy in jury instructions in terms
of afraid; afraid of what. [¶] Afraid of - - in terms of the definition of
“ ‘duress,’ ” what is danger in this context; and in terms of fear, fear of what.
[¶] [Under the jury instructions,] [y]ou can argue . . . that she was in fear,
the evidence to support that she feared greater sexual abuse than she got. [¶]
So I see why you did it . . . And I’m not granting a mistrial on that. I don’t
think that crossed a line that would give rise to a mistrial. . . .”
      4. Defense Counsel’s Closing Argument and Prosecutor’s
      Rebuttal

      In closing argument, defense counsel conceded that the conduct
occurred and that it “crossed boundaries,” but he urged the jury to acquit
because the prosecutor had not charged “correctly” as “there was no force, no
violence, no duress, no menace, no fear, no threats.” (Italics in original.)
Defense counsel reminded the jury that while the prosecutor threw out the
term “ ‘rape,’ [n]obody said ‘rape’ on the witness stand. Nobody said that.”
He also urged the jury not to “ ‘let sympathy, prejudice or public opinion
influence your decision. ’ ”
      The prosecutor gave a short rebuttal argument focused on the element
of fear of immediate bodily injury. “[S]he didn’t feel like she could do
anything else to get out of that situation. [¶] And it is absolutely because of
that that he is appropriately charged and that he should be found guilty of
that charge. [¶] . . . [¶] The charged crime captures what happened here.
And that was abundantly clear during that four hours that we sat and
watched that girl testify. [¶] And I ask that you do whatever you need to, as
far as hearing what she said, to hear that voice, to hear her tell you that
story, and to hold him responsible for exactly what he did.”




                                        19
      5. Deliberations and Verdict
      During their two days of deliberations, the jurors asked for clarification
of the instruction on the fear element: “An act is accomplished by fear if the
other person is actually and reasonably afraid or she is actually but
unreasonably afraid and the defendant knows of her fear and takes
advantage of it.” The court replied in writing that the phrase “defendant
knows of her fear and takes advantage of it” modified only the phrase “she is
actually but unreasonably afraid.”
      The jurors also asked for a read back of the entirety of the victim’s
testimony “to confirm exactly what she said in her own words (vs. reviewing
our notes).” Approximately one hour after the read back, the jury returned
its verdict, finding defendant guilty of the charged offense.
      B. The Claims of Prosecutorial Misconduct Based on Improper
      Appeal to Jurors’ Prejudices and Passions Were Not Preserved

      Defendant argues the prosecutor committed misconduct because her
initial closing remarks were designed to improperly appeal to the jurors’ fears
of child sexual molestation and to inflame their passions regarding such
cases. In support of this argument, defendant asks us to consider the
following remarks:
      (1) “That man preyed upon an innocent, vulnerable, and unsuspecting
young girl.” “But in all truthfulness, that’s why he picked her. That is how
and why this happened to her. How he selected his prey.”
      (2) “Because people like him don’t go after the girls whose parents are
paying close attention to them, the girls whose fathers are attentive and
whose mothers are nearby. . . . They go after young girls like her who appear
to be weak . . . and unprotected.”




                                       20
      (3) “He didn’t see that brave and courageous young girl that we saw on
the stand last week. He saw a girl who appeared to be shy, nervous, and
insecure, like most 16-year-olds are. . . . In his mind, this was the one person
who he could probably get away with this. . . . And he groomed her, make no
mistake, the rides, the money, that was grooming.”
      (4) “Nothing about this situation . . . occurred at a moment’s notice in
his mind. . . . He was waiting. He was waiting, much like a predator stalks
its prey. He was waiting for his moment to strike. . . . He had prepared her
by gaining her trust. He knew all of her surroundings, and he knew her
home. . . . He then waited until the moment she was alone in that room, at a
time when everyone else practically was asleep and no one would come to her
rescue.”
      (5) “In jury selection, I talked to some of the jurors about whether or
not they had talked to their children about how to react or respond when
something like this happens. . . . And we had some discussions about the fact
that, while these conversations take place, most of us – myself included–
don't talk to our children specifically about family members. . . . It wasn’t
until I started doing this work I realized that, . . . I may have talked to my
daughter, who is old enough to understand, about the stranger in the park or
outside of her school, that I had never specifically warned her about an uncle,
cousin, or even a grandfather who may do something like this. . . . [M]ost of
our children are unprepared. They don’t know how to react when it’s
somebody trusted within the family who does something like this. . . . And
much like our children, [the victim] . . . was unprepared for the night that he
came into that bedroom . . . . And like she said, she was afraid and she
couldn’t believe this was happening. And she was literally paralyzed from it.”




                                       21
      (6) “We often think of people who do these kinds of things as being
creepy or strange or having a particular look to them. . . . But the truth is,
they don’t. They look normal and unassuming. They look just like him
(indicating) . . . . They’re the last person that we would suspect would do this.
This is how they often get access to children like [the victim].”
      (7) “The reason why we often don’t talk to our children about family
members doing these types of things is because we don’t want to rob them of
every ounce of their innocence at a moment in their life when they should be
entitled to it. . . . But [defendant] stole [the victim’s] innocence that
night. . . . He stole and abused her trust and belief not only in herself, but in
mankind.”
      (8) “But what [the victim] told us is that, when he told her not to tell,
she knew at that moment that she had to. Because otherwise, this would
happen again. . . . And that’s very likely the truth. Because most often
situations like this don’t end on the first attempt.”
      Defendant contends he preserved his claim of error because his trial
counsel repeatedly objected to the improper argument and misconduct only to
be overruled by the court and made a mistrial motion that was also
unsuccessful. However, what the record clearly shows is that defense counsel
made no timely and specific objections (other than two limited objections,
discussed infra) to the challenged remarks despite the fact that the
prosecutor’s theory of the case–namely that defendant was a sexual predator
who had planned his attack on the victim, a teenager who could not
anticipate or handle the situation and therefore reacted in the manner she
did–was clear from the outset. Because the true basis for an objection was
always clear, defendant had plenty of time and opportunity to object and a
timely objection and request for admonition “would have been effective in



                                        22
preventing the harm that could have resulted from the alleged improper
argument[s], and the failure to object thus forfeited the issue for appeal.”
(People v. Seumanu (2015) 61 Cal.4th 1293, 1342 (Seumanu).)
      During the prosecutor’s closing argument, defense counsel lodged only
two objections to the challenged remarks. First, at the end of remark (2),
discussed above (argument that people like the defendant go after girls whose
fathers are inattentive and who are weak and unprotected), counsel objected
that the prosecutor was assuming facts not in evidence; in response, the court
admonished the jury that the prosecutor’s arguments were not facts. Second,
at the end of remark (8), discussed above (argument based on the victim’s
testimony that when defendant told her not to tell anyone what happened she
knew she had to so that something like that would not happen again, and the
victim was likely correct), counsel objected that the prosecutor was
improperly appealing to the jurors’ sympathy; in response, the court
admonished the prosecutor not to continue the argument and the prosecutor
complied by switching to another topic. The failure to make a specific
objection to remark (2) on the ground of an improper appeal to the prejudices
and passions of the jury, and the failure to ask for a further or different
admonition and instruction regarding both remarks (2) and (8) forfeits review
of the challenged remarks. (See People v. Fuiava (2012) 53 Cal.4th 622, 728
(Fuiava).)
      While defendant did make a motion for a mistrial,2 it did not function
to preserve his claim of prosecutorial misconduct as to remarks (1) and (3)

2
   Defendant does not contend the mistrial motion was improperly denied. In
fact, no meritorious argument could be made that the trial court abused its
discretion in denying the motion for a mistrial, which should be granted only
if the court finds the misconduct is incurable by admonition and instruction.
(People v. Haskett (1982) 30 Cal.3d 841, 845; see People v. Ayala (2000) 23


                                       23
through (7) on the basis of an improper appeal to the jurors’ prejudices and
passions. In People v. Peoples (2016) 62 Cal.4th 718 (Peoples), our Supreme
Court held that the defendant had preserved his claim of prosecutorial
misconduct by making a mistrial motion in which he quoted the specific
remarks made by the prosecutor. (Id. at pp. 800-801.) In finding adequate
preservation, the Peoples court noted the trial court had been provided “with
an opportunity to admonish the jury prior to the start of deliberations” and
“defendant’s objections were specific enough for the trial court to craft
suitable corrective instructions.” (Id.at p. 801.)
      Here, the record shows that defense counsel argued, in pertinent part,
that during the sidebar conference (at the end of the remark (6) about how
people look who commit these kinds of crimes) he had complained to the court
that the prosecutor was improperly appealing to the jurors’ bias, sympathy,
prejudice or public opinion, noting the prosecutor had made reference to “my
client as ‘those people, and what they do to our children’ for 15 minutes.
While the mistrial motion was timely made, it did not delineate the
prosecutor’s remarks with sufficient specificity to impose on the court a sua
sponte duty to craft corrective instructions to the extent the remarks (1) and
(3) through (7) may have been viewed as an improper appeal to the jurors’
prejudices and passions. Accordingly, we conclude defendant’s challenges to
remarks (1) and (3) through (7) are forfeited for appellate review.
       C. The Prosecutor Did Not Improperly Assume Facts Not In
          Evidence During Closing Argument




Cal.4th 225, 282 [motion for mistrial should be granted when “ ‘ “a
[defendant’s] chances of receiving a fair trial have been irreparably damaged”
’ ”].)


                                        24
      Defendant argues the prosecutor committed misconduct by assuming
facts not in evidence, thereby bolstering the prosecution’s case. Defendant
asks us to consider the prosecutor’s remarks regarding the element of fear of
immediate bodily injury, during which the prosecutor argued that while the
victim could not articulate exactly what she feared during the massage, the
jury’s job was to draw inferences from all the evidence, and that “somebody’s
pulling down your underwear and you’re a girl, that rape could be down the
line, some other form of sexual assault.” Defense counsel objected on the
ground the prosecutor was assuming facts not in evidence, to which the court
replied: “The argument is not facts. The evidence is what you’ve heard and
the inferences that you can draw from it.” The prosecutor then continued,
without drawing further objections, by arguing: “She wasn’t a child . . . . A
four- or five-year-old child may not . . . have a concept of what sex is, what
rape is. But a 16-year-old does. . . . A 16-year-old would have an
understanding of the horrible types of things that could come in a situation
like what she was in, if you don’t comply. . . . They could have a fear of
what’s to come and all the possibilities that follow with that. She was old
enough to have that understanding.” The prosecutor later argued that fear of
bodily injury did not just mean fear of “being beaten or attacked,” but “can
consist of a number of things, including being raped, including being sexually
assaulted.” Defense counsel did not then object. Thereafter, as part of the
motion for a mistrial, defense counsel complained that the prosecutor several
times used the word, “ ‘rape,’ ” which was never uttered from the witness
stand.
      We initially conclude defendant’s challenge to the prosecutor’s use of
the term “rape” is preserved for review by defendant’s specific objection
during the prosecutor’s remarks to the jury and by the motion for a mistrial



                                       25
based on the ground the word “rape” had never been spoken by the victim
during the trial. (See Peoples, supra, 62 Cal.4th at p. 801.) Nonetheless, we
see no merit to defendant’s complaint.
      The challenged remarks were prefaced by the prosecutor informing the
jury that the victim had testified repeatedly that she was afraid of defendant
during the incident but could not articulate why she was afraid. The
prosecutor proffered that a reasonable inference one could draw from the
situation, a 16-year-old girl whose underwear had been pulled down by a
father figure, was that the victim feared she was potentially at risk for a
sexual assault including rape. In response to defense counsel’s objection that
the prosecutor was assuming facts not in evidence, the trial court
admonished the jury that the prosecutor’s argument was not evidence –
evidence was what they heard from the witnesses and the inferences the
jurors drew from that evidence. These admonishments mirrored the
instructions given to the jurors before argument began.
      Thus, when viewed in context, the prosecutor’s argument is more akin
to drawing inferences from the evidence than arguing facts not in evidence.
Given the court’s admonition and instructions as to how the jury was to
consider the prosecutor’s arguments, it is not reasonably likely the jurors
understood or applied any of the complained-of remarks referring to rape in
an improper or erroneous manner. (Seumanu, supra, 61 Cal.4th at p. 1337.)
      D. Defendant Forfeited Claims of Prosecutorial Misconduct
      Based on Improper Shifting of Burden of Proof to Defense and
      Disparagement of the Defense

      Defendant additionally argues the prosecutor improperly shifted the
burden of proof to the defense and disparaged the defense. Defendant focuses
on the prosecutor’s remarks that the jurors should “scrutinize the defense
from a critical standpoint;” “[b]e wary of attempts to minimize what


                                       26
happened here;” “be wary of attempts to minimize the conditions under which
it happened;” “watch out for gross misstatements of [the victim’s] testimony;”
“watch out for gross misstatements that are designed to serve the purpose of
making this seem like she wanted it to happen, or she wasn’t afraid -- ‘cause
we all know what she told us.” However, defendant forfeited review of the
challenged remarks by failing to make timely and specific objections on the
grounds he now asserts on appeal.
      As to defendant’s claim that the prosecutor improperly shifted the
burden of proof to the defense, his counsel lodged only one objection and the
court admonished the jury that the People had the burden of proof. The
failure to ask for a further admonition and instruction forfeits review on
appeal. (Fuiava, supra, 53 Cal.4th at p. 728.)
      As to defendant’s claim that the prosecutor disparaged the defense, his
counsel made no timely and specific objection on this ground either during
the closing remarks or in his motion for a mistrial. While defendant moved
for a new trial based on a claim that the prosecutor disparaged defense
counsel, a post-verdict new trial motion is insufficient to preserve a claim of
prosecutorial misconduct for which no timely and specific objection was made
during the trial. (People v. Adams (2014) 60 Cal.4th 541, 577.)
      In sum, we conclude reversal is not warranted. Objections to the
prosecutor’s closing remarks were either forfeited for review or the remarks
were fair comment on the evidence and reasonable inferences to be drawn
therefrom. In light of our determination, we need not address defendant’s
contentions that the prosecutor’s comments were not harmless error.




                                       27
III.   Defendant Has Forfeited His Challenge to Fines and
       Assessments at Sentencing

       Defendant challenges the imposition of all “fines” and “assessments” on
the basis that the court did not hold a hearing and consider his ability to pay
those sums. This claim of error was forfeited as there was no such objection
raised at sentencing. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [generally,
a defendant’s failure to object to any financial obligations imposed at
sentencing forfeits the issue for appellate review]; see also People v. Acosta
(2018) 28 Cal.App.5th 701, 707 [absent a defense request, a trial court is not
obligated to inquire into a defendant’s ability to pay a sex offender
registration fine].)
       As part of defendant’s sentence, the court imposed the following fines
and assessments: (1) $300 sex offender registration fine (§ 290.33), (2) $40
court operations assessment (§ 1465.84); (3) $30 immediate critical needs
assessment (Gov. Code, § 70373, subd. (a)5), and (4) the minimum $300
restitution fine (§ 1202.46), together with an additional $300 restitution fine


3 Section 290.3, subdivision (a) requires the trial court to impose a $300 fine
on a defendant convicted of a first violation of an offense subject to sex
offender registration under section 290 “unless the court determines that the
defendant does not have the ability to pay the fine.”
4 Section 1465.8 requires the trial court to impose a $40 court operations

assessment for every criminal conviction. There is no provision allowing the
court to waive the fine based on a defendant’s inability to pay.
5 Government Code section 70373 requires the trial court to impose a $30

immediate critical needs assessment for every criminal conviction. There is
no provision allowing the court to waive the assessment based on a
defendant’s inability to pay.
6 Section 1202.4 requires the trial court to impose a restitution fine to be paid

by every person convicted of a crime; the imposition of the minimum fine, as
in this case, does not require the court to consider a defendant’s ability to
pay. If the court elects to impose more than the minimum fine, the court is


                                       28
that was suspended unless defendant’s parole, mandatory supervision, or
PRCS were revoked (§ 1202.45). The court also ordered defendant to pay
direct victim restitution in an amount to be determined by the parole
department, including “a 15% administrative fee”; the court retained
jurisdiction in the case of a dispute as to the amount of direct victim
restitution.
      Defense counsel objected “to any type of restitution at all. There’s been
absolutely no evidence at all that there’s any type of restitution owed. And
just even ordering restitution will cause additional fines and fees just to
determine if there’s restitution, and so far there’s been no hint of any type of
restitution.” The prosecutor responded by arguing that the victim was
entitled to restitution, and if the victim made a request for restitution she
would have to provide documentation and defendant could dispute the
request. As noted by the court: “And that was the extent of my order. That
will be determined by the parole department. And if there’s any dispute in
that, I’ll retain jurisdiction to resolve that and any such dispute, and you can
make those arguments at that time. . . .”
      Defense counsel made no further objections to the court’s sentence.
       While defendant concedes he failed to object to the sex offender
registration fine and the court facilities and operations assessments, he
claims his appellate arguments are properly before us because his counsel
objected to “restitution fines,” citing to the reporter’s transcript at page 3046.
We disagree. Defense counsel’s objection, which is set forth verbatim above,
was directed at the court’s order concerning direct victim restitution. This
was clearly insufficient to alert the court or the People to the specific


expressly authorized to consider a defendant’s ability to pay. (Id., subds. (b),
(d).)


                                        29
arguments now raised on appeal concerning the court’s failure to
consider defendant’s ability to pay the imposed fines and assessments.
      Defendant also contends the forfeiture rule does not apply because his
claim of error is premised on violations of his fundamental federal and state
constitutional rights to due process and equal protection and the prohibition
against excessive fines. However, at the time of his May 2, 2019 sentencing,
defendant could have made a meaningful constitutional challenge to the
imposition of the fines and assessments on the basis of his inability to pay
those sums, supported by existing substantive law including People v. Dueñas
((2019) 30 Cal.App.5th 1157) and Timbs v. Indiana ((2019) __ U.S. __ [139 S.
Ct. 682]), as well as the other cases cited in his appellate briefs. Having
failed to make such a challenge, defendant is now foreclosed from advancing
his constitutional arguments on appeal. “We reject his further argument that
his constitutional claim[s] [are] of such magnitude that principles of
forfeiture should not apply.” (People v. Geier (2007) 41 Cal.4th 555, 611,
overruled sub silentio on other grounds by Melendez-Diaz v. Massachusetts
(2009) 557 U.S. 305, 315-316, 321-322.)
      Nor do we see any merit to defendant’s argument that the imposition of
fines and assessments, without a finding of defendant’s ability to pay, results
in a legally unauthorized sentence that is subject to correction at any time.
(See People v. Avila (2009) 46 Cal.4th 680, 729 [Supreme Court rejected
argument that, because the defendant did not have the ability to pay,
imposition of restitution fine under § 1202.4 was an unauthorized sentence
not subject to the forfeiture rule]).
      In sum, we see no reason to deviate from “the traditional and
prudential value of requiring parties to raise an issue in the trial court if they




                                        30
would like appellate review of that issue.” (People v. Frandsen (2019) 33
Cal.App.5th 1126, 1154-1155).
                                  DISPOSITION
      The judgment is affirmed.




                                      31
                                     _________________________
                                     Petrou, J.


WE CONCUR:


_________________________
Fujisaki, acting P.J.


_________________________
Jackson, J.




A157186/People v. Duarte-Lara


                                32
Trial Court:        San Francisco County Superior Court


Trial Judge:        Hon. Michael McNaughton

Counsel:            Office of Attorney General, Xavier Becerra, Attorney
               General, Lance E. Winters, Chief Assistant Attorney General,
               Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K.
               Schalit, Supervising Deputy Attorney General, Katie L. Stowe,
               Deputy Attorney General, for Plaintiff and Respondent.


                    First District Appellant Project, Jennifer A. Mannix for
               Defendant and Appellant.




                                        33
