Filed 1/21/14 P. v. Ortiz CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


THE PEOPLE,                                                         B241320

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA386275)
         v.

JOSE A. ORTIZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Monica
Bachner, Judge. Affirmed as modified.
         Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.


                                         _______________________
       Jose Ortiz was convicted of multiple sexual offenses for sexually abusing two
children. On appeal, he contends that he received ineffective assistance of counsel
because his trial attorney did not object to alleged prosecutorial misconduct and because
his counsel improperly conceded his guilt at closing argument. We correct Ortiz’s
presentence custody credits but otherwise affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND

       A full recitation of the facts of this case is unnecessary in light of the issues raised
on appeal, which pertain to closing argument and sentencing. Ortiz was charged with
five sexual offenses involving two children. At trial, both victims testified in detail to the
sexual abuse. Three additional witnesses testified pursuant to Evidence Code section
1108 that as children they had been victims of sexual abuse by Ortiz. Finally, the jury
was informed that Ortiz had been convicted of lewd and lascivious conduct upon a child
under the age of 14 years with respect to still another victim. Ortiz testified in his own
defense and denied all allegations of sexual abuse.
       Ortiz was convicted of all charges and was sentenced to a sentence of 255 years to
life in state prison. He appeals.


                                       DISCUSSION

       I.     Ineffective Assistance of Counsel Claim: Failure to Object to Alleged
              Prosecutorial Misconduct

       Ortiz claims that the prosecutor committed two types of misconduct in closing
argument: first, making an exhortation to convict him to prevent future victims; and
second, improperly shifting the burden of proof to him. Ortiz did not object to this
argument and therefore has waived any error in the closing argument (see, e.g., People v.
Cunningham (2001) 25 Cal.4th 926, 989). We address the merits of Ortiz’s contentions,
however, because he argues that his trial counsel’s failure to object constituted ineffective
assistance of counsel within the meaning of Strickland v. Washington (1984) 466 U.S.



                                               2
668 because there could be no valid tactical reason for failing to object. (See People v.
Nation (1980) 26 Cal.3d 169, 179.)

       A. Call to Convict Ortiz

       In her initial closing argument, the prosecutor outlined the “string of damage[d]
girls and/or women” Ortiz had left by presenting the six victims (the two who were the
subject of the instant charges and the four others concerning whom evidence was
received at trial) in chronological order and noting that Ortiz had been committing sexual
offenses from the early 1980’s through the 2000’s. The prosecutor said, “So it’s time to
stop him. He has to stop abusing children, and you have to stop him. He has to stop
destroying lives. And he needs to be held accountable for what he did to [the two victims
of the charged offenses]. So I’m going to ask you to do the right thing and convict this
man for the things he has done.”
       In her final closing argument, the prosecutor revisited this argument: “And so you
need to stop the defendant before he is allowed to get to the next generation of victims.
You need to hold him accountable for what he did to [the two victims of the charged
offenses].” Her final words to the jury were, “So in conclusion, I would just ask you to
hold the defendant accountable for what he did to [the two victims of the charged
offenses]. Stop him from committing crimes against future victims. We’ve heard from
five out of six victims in this case, and you need to hold him accountable so he may not
have the opportunity to abuse additional victims.”
       Ortiz argues that the prosecutor committed misconduct with these statements
because they “were calculated to arouse the jury’s passions and prejudices. The
prosecutor repeatedly urged the jury to punish appellant to protect potential future
victims. This argument impermissibly placed upon the jury the responsibility to prevent
future harm to other children.” We find no misconduct here. The prosecutor argued that
holding Ortiz accountable on the charged offenses would have the effect of stopping him
from committing still more sexual offenses against children. There was abundant
evidence in the record to support the argument that Ortiz was a serial sexual abuser,

                                             3
committing sexual crimes against six children over multiple decades, and this evidence
justified the prosecutor in arguing that Ortiz’s course of conduct led to the reasonable
belief that he would continue to commit sexual offenses against new victims.
“Suggesting that a defendant will commit a criminal act in the future is not an
inappropriate comment when there is sufficient evidence in the record to support the
statement.” (People v. Hughey (1987) 194 Cal.App.3d 1383, 1396.) The prosecutor was
not offering unsworn testimony that those who commit one sexual crime would likely
“do it again,” as in People v. Whitehead (1957) 148 Cal.App.2d 701, 705, or placing
upon the jurors the responsibility for the victims’ lives, as in People v. Pitts (1990) 223
Cal.App.3d 606, 702, as Ortiz suggests. Instead, the prosecutor repeatedly asked that the
jury hold Ortiz accountable for what he had done to the victims in this case and, by doing
so, to prevent him from reaching another generation of victims. We find no improper
attempt to appeal to sympathy, passion, or emotion here.

       B. Alleged Burden-Shifting

       After defense counsel made his closing argument, the prosecutor began her final
closing argument by telling the jury that this was her opportunity to respond to the
defense’s argument. She continued, “And first of all, Mr. Oliver (defense counsel) has a
really hard job today because he has to try to explain to you the unexplainable, how this
defendant could have—he has to explain how the evidence fails to meet that really high
standard. And the fact is the evidence is overwhelming that the defendant committed
these crimes.” Ortiz argues that with these words, the prosecutor was arguing that the
defendant was required to explain how the evidence failed to prove him guilty beyond a
reasonable doubt, thus impermissibly shifting the burden of proof. He argues that this
case is similar to People v. Hill (1998) 17 Cal.4th 800, at pages 831 through 832, in that
the prosecutor’s words could be understood as suggesting that she did not have the
burden of proving every element of the charged offenses beyond a reasonable doubt or
claiming that there must be some affirmative evidence demonstrating a reasonable doubt.



                                              4
       Taken in the context of the case, we do not believe the prosecutor’s statement is
susceptible to Ortiz’s interpretation. While a defendant may choose to rely upon the state
of the evidence and upon the failure, if any, of the People to prove beyond a reasonable
doubt every essential element of the charge, in this case, Ortiz did not choose to do that.
He took the witness stand and denied all wrongdoing. Once a defendant presents
evidence, it is subject to critical examination and comment. (People v. Chatman (2006)
38 Cal.4th 344, 403-407.) When the prosecutor made the challenged comments, defense
counsel had just finished his closing argument, in which he argued that while there might
be a preponderance of evidence of guilt, the People had fallen short of proving that Ortiz
committed the charged crimes beyond a reasonable doubt. The prosecutor, in her final
summation, responded critically to this contention. Rather than simply arguing that the
evidence was sufficient to convict, she framed her argument in terms of sympathy for
defense counsel’s position: in closing argument, defense counsel was placed by the
evidence in the difficult position of explaining how the evidence “fail[ed] to meet that
really high standard” of proof beyond a reasonable doubt, when the evidence was in fact
overwhelming in nature. With her comment on rebuttal, the prosecutor did not instruct
the jury on the law or allocate any burden of proof to the defense, but merely observed
that it was a significant challenge for defense counsel to make his argument of
insufficient evidence in light of the overwhelming nature of the evidence. Nor did the
prosecutor lessen her own burden of proof, for she emphasized that the prosecution’s
standard of proof is “really high,” and her observation was not reasonably likely to have
been construed as shifting the burden of proof to the defense. As we do not find any
prosecutorial misconduct occurred here, Ortiz’s trial counsel was not ineffective for
failing to object.

       II.     Ineffective Assistance of Counsel Claim: Arguing “Against” Ortiz

       At closing argument, defense counsel attempted to distinguish between the
charged and uncharged offenses and to convince the jury that no matter what it thought
about Ortiz or the uncharged offenses, the prosecution had not offered enough evidence


                                              5
to convict him on the charges in the present case: “You know, something I worried about
the entire weekend is [that] the prosecutor was going to get up and give a really powerful
argument like she did. And it just, like, threw me because there’s a powerful case, she’s
put together a powerful case that Mr. Ortiz committed crimes against these uncharged
victims. The problem is that she failed to put together a case that contains proof beyond a
reasonable doubt that he committed the specific crimes that he’s charged with.
Uncorroborated testimony. That’s all there is.” Ortiz argues that counsel “improperly
conceded appellant’s guilt” and therefore denied him effective assistance of counsel. He
argues that there was no valid tactical reason for making this concession; notes that
because Ortiz had denied not only the charged sexual offenses but the uncharged ones as
well, counsel was conceding crimes that Ortiz himself had denied; and asserts that the
argument undermined him and led the jury to convict him.
       “The decision of how to argue to the jury after the presentation of evidence is
inherently tactical.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) Concession of
some measure of culpability is not ineffective assistance of counsel when the evidence is
strong and the concession is made strategically in an attempt to gain some other
advantage. (See, e.g., People v. Bolin (1998) 18 Cal.4th 297, 334-335 [concession of
some criminal conduct a reasonable trial tactic in light of strong evidence where
concession permitted counsel to urge a guilty verdict on lesser included offenses and to
preserve credibility in case of a penalty phase].) It is clear from the closing argument that
counsel conceded the uncharged acts in an effort to establish a contrast between those
offenses—which could not be the basis for criminal liability in the present action—and
the charged offenses, which, if proven, exposed Ortiz to hundreds of years in prison.
After the opening set forth above, counsel discussed the difference between proof beyond
a reasonable doubt and proof by a preponderance of the evidence. He conceded that with
respect to the uncharged acts, the prosecutor had met the burden of proof by a
preponderance of the evidence, but argued that the same could not be said for the
elements of the charged crimes, which had to be proven beyond a reasonable doubt. He
said, “It is more likely than not, and that’s the standard, that these [uncharged crimes]

                                              6
were committed. Those crimes were committed. But with the crimes charged against the
two girls . . . it’s an entirely different thing, because it doesn’t rise to the level of proof
beyond a reasonable doubt. There’s no corroboration. There’s no proof independent of
their word. None. There’s no medical evidence. Both of the S.A.R.T. [sexual assault
response team] nurses came in and said that there was an examination of the vaginal
[and] anal area of these children, and they were normal.” Counsel argued that the
children were coached to make these allegations; reiterated the absence of medical
evidence of abuse; challenged the two victims’ credibility in a detailed manner; alleged
that the victims had a motive to fabricate their accounts; and, finally, returned to his
central theme, that there may have been “a lot of proof of the uncharged crimes, but
there’s not proof beyond a reasonable doubt” of the charged offenses.
       Trial counsel’s argument reflected the reasonable tactical decision to cede some
ground that was not critical in order to establish some credibility on the part of the
defense through candor (see, e.g., People v. Williams (1997) 16 Cal.4th 153, 219-220), to
highlight the operation of the different burdens of proof at play in the proceeding, and to
attempt to create a perception of a distinction between the strength of the evidence of the
charged and uncharged offenses. Under the circumstances, conceding some measure of
culpability was a valid tactical choice.


       III.    Presentence Custody Credits

       As noted by both Ortiz and the Attorney General, Ortiz’s presentence custody
credits were incorrectly calculated. First, Ortiz was awarded 270 days of actual credit,
although the records indicate that he served 316 days prior to sentencing. Also, he
received 20 days of conduct credits, but under Penal Code section 2933.1 he was entitled
to 47 days of conduct credits. We modify the judgment accordingly.




                                                7
                                     DISPOSITION

       The judgment is modified to reflect 316 days of actual custody credits in addition
to presentence credits in the amount of 47 days, for a total of 363 days of presentence
custody credits. The clerk of the superior court is ordered to prepare an amended abstract
of judgment as set forth in this opinion and to forward a copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed.




                                                 ZELON, J.
We concur:




       PERLUSS, P. J.




       SEGAL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                             8
