Filed 4/29/13          P. v. Cuevas CA3
                                            NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

                                       THIRD APPELLATE DISTRICT

                                                  (Sacramento)

                                                          ----



THE PEOPLE,                                                                                  C070790

                   Plaintiff and Respondent,                                         (Super. Ct. No.
                                                                                        11F03397)
         v.

ROJELIO CUEVAS,

                   Defendant and Appellant.




         Appointed counsel for defendant Rojelio Cuevas has asked this court to review the
record to determine whether there exist any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Counsel advised defendant of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief, and defendant
has filed a brief claiming error. As we will explain, we are not persuaded by his claims;
further, we see no arguable error that would result in a disposition more favorable to
defendant. Accordingly, we affirm the judgment.




                                                             1
                    FACTUAL AND PROCEDURAL BACKGROUND
          People’s Case-in-Chief
          On May 16, 2011, while sixth grader M.D. was walking through Oki Park on her
way home from school, a man with a young child walked past her and said, “[y]ou‟re
hella sexy.” M.D. then saw the same man driving a car out of a restaurant parking lot.
The man said, “[c]ome here,” but M.D. just kept walking; she walked really fast because
she was scared.
          M.D. then walked through the parking lot of a flea market. A car pulled in and
blocked her path. The same man, later identified by her at trial as defendant, got out of
the car and tried to grab her arm. She pulled away and ran home. When she arrived
home she was crying and yelling. She told her mother that a man had walked by her, had
said, “[h]ella sexy” to her, and later had tried to “snatch” her. Her mother called the
police.
          The next day, police officers patrolling near M.D.‟s school saw a car and driver
that matched the description she had provided--a gold four-door Ford Taurus and a male
Hispanic with a mole on his face. The police stopped the car and identified the driver as
defendant. M.D. was brought to the scene for a field show-up. She was “98 percent
sure” the car was the same one that had followed her. About defendant, she said:
“I don‟t know. I don‟t think that‟s him. I see the mole. I don‟t remember. I don‟t want
to put the wrong person in jail.”
          The police obtained surveillance videos from businesses near the parking lots
where M.D. had walked the day of her various encounters with defendant. A video of the
restaurant‟s parking lot showed a car that looked very much like a Ford Taurus, with a
white sticker on the bottom of the front windshield. Police found a very similar white
sticker in the same place on defendant‟s car. The video also showed what looked like
M.D. walking through the parking lot, and the car following. The video did not show
where the car went after it left the parking lot.

                                               2
       Police took defendant into custody 10 days after the incident. When interviewed,
he told them he had picked up his son from school and had taken him to the park to play.
He originally denied seeing or talking to anyone at the park or when driving elsewhere,
but eventually admitted some limited contact with M.D. He told the police that when
M.D. had walked past them, he said to his son, “[o]h, she‟s pretty huh son.” Later, when
driving home, defendant saw M.D. and followed her into a parking lot. M.D. turned
around when defendant‟s brakes squeaked loudly and he drove home. He did not speak
to M.D., leave his car, grab her, or follow her to the flea market. He thought M.D. was
16 years old.
       Defense Case
       Defendant testified that, on the day of the incident, he picked up his son from
kindergarten and they went to Oki Park. While entering the park, they passed M.D.
walking in the opposite direction. Defendant asked his son, “[s]he‟s pretty, isn‟t she,
son?” Defendant believed M.D. was 16 or 17 years old.
       Twenty minutes later, defendant and his son left the park to drive home. After
deciding to stop at a fast food restaurant, defendant drove through a parking lot where he
noticed a female walking about 100 yards away. When he approached to within 30 to 50
feet, defendant realized that the female was the girl he had seen near Oki Park. He
applied his car‟s brakes, which made a loud screeching sound. M.D. turned and saw
defendant again. Defendant perceived that M.D. had been startled. Without saying
anything to her, he drove out of the parking lot and went straight home.
       Defendant initially lied to the police about seeing M.D., because he was mortified
at the thought of confessing that he had looked at a girl who possibly was under 18 years
of age. Defendant eventually told the police what had happened and expressed his
willingness to take a polygraph examination.




                                             3
        On cross-examination, defendant admitted that he had found M.D. physically
attractive and that, in his conversation with the police, he had called her “eye candy.”
However, her appearance had not excited him.
        Verdicts and Sentence
        The jury found defendant guilty of child annoyance. (Pen. Code,1 § 647.6, subd.
(a).) It found him not guilty of false imprisonment by menace (§ 237, subd. (a)) and the
lesser included offense of simple false imprisonment (§ 236). The court suspended
imposition of sentence and placed defendant on probation for five years on the condition,
among others, that he serve 179 days in custody (time served). The court ordered him to
pay a $300 sex crime fine (§ 290.3) plus penalty assessments, a $120 restitution fine
(§ 1202.4), a $40 court operations fee (§ 1465.8, subd. (a)(1)), a $30 court facilities
assessment (Gov. Code, § 70373), a $287.78 booking fee and a $59.23 classification fee
(Gov. Code, § 29550.2, subd. (a)), and a $227 presentence report fee.
                                       DISCUSSION
        Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant has filed a supplemental brief contending,
without cites to the record, that: (1) the trial court erred when it excluded several
photographs of M.D. that had been posted to her social media accounts, and (2) the
People committed misconduct in closing argument.
                                               I
                                  Exclusion of Photographs
        Defendant contends the trial court erred when it excluded several photographs of
M.D. posted to her social media accounts. He claims these photographs were relevant to




1   Further undesignated statutory references are to the Penal Code.

                                               4
rebut the People‟s argument that M.D. had no reason to falsely accuse defendant of the
charged crimes. Defendant argues these photographs were provocative and revealed that
M.D was seeking attention from adult males, demonstrating she had a motive to accuse
strangers of attempting to harm her. We find no abuse of discretion.
       A.     Background
       Pretrial, the trial court marked for identification 23 photographs of M.D. wearing
various articles of clothing (defense exhs. A-W) and three multiple-page printouts from
social media Websites (defense exhs. X-Z). The People objected to admission of the
photographs as irrelevant, unduly prejudicial, and improper impeachment on a collateral
matter. The People argued the photographs‟ only theoretical relevance was to show that
M.D. appeared older than her actual age of 12 years, which could be a defense to a charge
of violation of section 647.6; however; defendant had not seen any of the photographs
before the alleged incidents, so his actions could not have been informed by them.
       The defense sought to impeach M.D. with the photographs. Defense counsel
explained that the photographs were “put out on a public forum and on a Website to
trigger comments, and [M.D.] showed herself off to people. [¶] And my theory of
defense in this matter is she‟s lying about the allegation that he tried to snatch her and
kidnap her because she wanted attention, and they clearly show a pattern of seeking
attention. [¶] They are somewhat sexual in nature. She‟s provocatively dressed in
several of them. She‟s making kissing motions in one or two of the photographs. She‟s
actually hugging on somebody who appears to be an adolescent. [¶] In one of the
photographs . . . it shows some of . . . the comments that she‟s receiving from apparently
adult men as a result of the photographs that she‟s putting on the internet for people to
see her.” Counsel expressed concern that M.D. is “going to be presented as somebody
that she‟s not, and the jury is not going to have a sense of how she really behaves and
tries to draw attention to herself on a fairly consistent basis.” Counsel reiterated that
“the crux of the defense” is that M.D. “likes to draw attention, and that‟s the whole basis

                                              5
for her claiming that [defendant] tried to kidnap her when there‟s no clear evidence to
corroborate it.” The trial court deferred ruling on the issue until M.D. testified on direct
examination.
       At a hearing held during M.D.‟s testimony, defense counsel requested permission
to ask M.D. about one or two of the photographs “in light of her demeanor in court, her
appearance in court, and her testimony as well.” The People argued the evidence was
substantially more prejudicial than probative within the meaning of Evidence Code
section 352. The trial court found the evidence “extremely prejudicial, does not appear
[to] be probative or relevant to the issues in this case and has the potential to confuse the
jury” and excluded the evidence.
       Prior to sentencing, defense counsel moved for a new trial on the ground the
photographs were erroneously excluded. Noting that defendant had admitted in his
testimony that he had believed M.D. was under age 18, the trial court denied the motion.
       B.      Analysis
       “Under Evidence Code section 352, the trial court enjoys broad discretion in
assessing whether the probative value of particular evidence is outweighed by concerns
of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a
discretionary power is statutorily vested in the trial court, its exercise of that discretion
„must not be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. [Citations.]‟ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124-1125.)
       Defendant has not shown that the trial court‟s exercise of its discretion was
unreasonable, let alone arbitrary, capricious, or patently absurd. Although he argues that,
“if the jury could get a glimpse at the way [M.D.] was dressed on the day in question,
they would see that my noticing [M.D.] was not unnatural or abnormal[,]” he points to no
evidence that M.D. was dressed as she was in the photographs at the time of her

                                               6
encounter with defendant. Rather, the evidence showed only that M.D. was walking
home from her elementary school at the time defendant approached her.
          Further, any connection between M.D.‟s behavior in placing sexually provocative
photographs of herself on social media and making false accusations of kidnapping was
speculative at best. Speculative evidence is irrelevant evidence. (People v. Babbitt
(1988) 45 Cal.3d 660, 682.) Because the proffered evidence regarding M.D.‟s online
activities was irrelevant and thus devoid of probative value, the trial court was certainly
entitled to conclude the evidence was substantially more prejudicial than probative. No
abuse of discretion appears.
          Defendant does not make a separate argument with respect to the denial of his new
trial motion. For the reasons explained ante, that motion was properly denied.
                                               II
                                   Prosecutorial Misconduct
          Defendant contends the People committed prejudicial misconduct during his
summation when he told the jury that M.D. “clearly looked like a child and not even
close to the age of 17.” Defendant argues this statement was “absolutely false and
misleading,” and was prejudicial in that it “added to the jury‟s finding that my interest in
[M.D.] was abnormal and/or unnatural.”
          A.    Background
          In opening summation, the People argued that “the argument, the position that
[defendant] took, that he didn‟t know that [M.D.] is from that elementary school, to me,
is ludicrous. Why? Because you‟re walking about this far from a person. He says he
was looking at her body. Fine. You saw how she looked in court. 16? 17? Not even
close.”
          In closing summation, the People argued that “the idea that this individual thought
that girl was 16 or 17 just doesn‟t make common sense.        [¶] This is a girl with a



                                               7
backpack, walking home from the elementary school. He knew it. He knew what path
she was on, what street she was on. School was out. Here‟s some other kids.”
       The People continued: “So if you think [defendant] knew [M.D.] was not 16 or
17, but a child from the same school where his kid was coming from, find him guilty of
Count Two, because right off the bat, if you‟re expressing sexual intentions toward a girl
you know to be in elementary school, that‟s unreasonable conduct. You should find him
guilty just by that.”
       Defense counsel did not object to any of the foregoing remarks or request that the
jury be admonished to disregard any of them.
       B.      Analysis
       “A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such „ “unfairness as to make the resulting conviction a
denial of due process.” ‟ (Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d
144, 157]; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor
who uses deceptive or reprehensible methods commits misconduct even when those
actions do not result in a fundamentally unfair trial.” (People v. Cook (2006) 39 Cal.4th
566, 606; see also People v. Hoyos (2007) 41 Cal.4th 872, 923; People v. Ledesma (2006)
39 Cal.4th 641, 726.)
       “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.” (People
v. Thornton (2007) 41 Cal.4th 391, 454 (Thornton).)
       Defendant‟s claim of prosecutorial misconduct is forfeited by his trial counsel‟s
failures to object to the disputed remarks and to request an appropriate admonition.
(Thornton, supra, 41 Cal.4th at p. 454.) Further, because the record on appeal does not



                                             8
support defendant‟s claim that the People‟s argument was misleading, let alone deceptive
or reprehensible, we see no prosecutorial misconduct.
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                        DUARTE                   , J.



We concur:



          RAYE                      , P. J.



          BUTZ                      , J.




                                              9
