Filed 4/19/16 P. v. Garcia CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B261601

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA416187)
         v.

MANUEL HAROLDO GARCIA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa B. Lench, Judge. Affirmed.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff
and Respondent.
      Manuel Haroldo Garcia appeals from the judgment entered following his
conviction by jury of one count of sexual intercourse or sodomy with a child 10
years old or younger (Pen. Code, § 288.7, subd. (a))1 and two counts of oral
copulation or sexual penetration with a child 10 years old or younger (§ 288.7,
subd. (b)). The trial court sentenced appellant to state prison for 55 years to life.
Appellant contends trial counsel rendered ineffective assistance in failing to object
to prosecutorial misconduct and the court prejudicially erred in failing to instruct
sua sponte pursuant to CALCRIM No. 302 concerning weighing conflicting
testimony. We find no prejudicial error and therefore affirm.


                                     BACKGROUND
Prosecution Case
      In 2013, appellant and his family were neighbors of seven-year-old S. and
her family. S. frequently visited in appellant’s apartment to watch movies or play
with appellant’s wife and child. When S. was there on or about September 4,
2013, and on one or two other occasions, appellant put his hand under her clothes
and his finger inside her vagina. It was painful. Appellant told S. not to tell
anyone, and she complied because she was afraid.
      On September 11, 2013, during another visit, appellant told S. to go into his
bedroom. Appellant’s wife and child were in the bathroom taking a shower. S.
told appellant her mother was calling her, but appellant pulled her inside the
bedroom, and told her to lie down on the bed. Appellant pulled down S.’s pants
and underwear as well as his own and put his penis in S.’s vagina. This hurt. He
moved his body up and down. S. felt wetness and pain. When appellant’s wife


1
      Except where otherwise noted, statutory references are to the Penal Code.

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and child finished showering, appellant told S. to get dressed. S. ran back to her
apartment. In shock and tears, she told her parents appellant had done something
nasty to her. She took a shower, because it felt wet in her vagina and she felt dirty.
Her brother called the police.
      A forensic examination on September 13, 2013, revealed the following: an
abrasion/laceration in the vaginal opening; and redness in the hymenal tissue area
and labia minora. S. reported tenderness in the hymenal area and diffuse
tenderness throughout. The findings were consistent with a blunt force penetration
to the vaginal area. Appellant’s DNA was found in anal, vestibular, and vulvar
swabs taken from S.
      Appellant told the police he touched S. between the legs and her vagina, put
his finger in her vagina, and stroked her vagina but did not put his penis inside her.
When asked if his finger went all the way in or just part way, he stated, “I only
touched her a little but I didn’t . . . imagine it was such a big deal, you know.”


Defense Case
      The defense rested without presenting evidence. Counsel focused his
argument on the two digital penetration counts, arguing there was a paucity of
evidence. “[J]ust because he’s guilty of one offense [i.e., sexual intercourse]
doesn’t mean he’s guilty of all.” Counsel told the jury to consider whether each
individual count was proved beyond a reasonable doubt.




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                                    DISCUSSION
I. Ineffective Assistance of Counsel for Failure to Preserve Objection to
   Prosecutorial Misconduct

      Appellant contends the prosecutor committed misconduct when she told the
jury it should send appellant a message, and teach him the lesson, that the things he
did to S. were a big deal and he must not do them.2 We conclude the contention
was forfeited and, in any event, we disagree with the contention. Accordingly, we
reject appellant’s attempt to recast the forfeited issue as one of ineffective
assistance of counsel.


      A. Forfeiture
      “‘“‘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.’” [Citations.] Under state law, a
prosecutor who uses such methods commits misconduct even when those actions
do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a
claim of misconduct, a defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the harm is the claim of


2
        In closing argument, the prosecutor reminded the jury about the statement
appellant made when he was asked how many fingers he put in S.’s vagina: “The truth
is, but I didn’t imagine it was such a big deal, you know?” The prosecutor then stated:
“Now, that statement is important. Because the defendant didn’t imagine it was such a
big deal. Well, this was a big deal to S. This was a big deal to her mom, to her dad. And
this is a big deal to society. [¶] And you need to send this defendant a message that this
is a big deal. You cannot go around sticking your penis in a seven-year-old girl’s vagina,
and you cannot go around sticking your fingers in a seven-year-old’s vagina. It’s a big
deal. [¶] He may not know it, but he needs to learn that you can’t do things like that.”

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misconduct preserved for review.’”’ [Citation.]” (People v. O’Malley (2016) 62
Cal.4th 944, 1010 (O’Malley).)
      Appellant failed to object to the remarks he now asserts were misconduct,
thus forfeiting the misconduct claim on appeal. (O’Malley, supra, 62 Cal.4th at p.
1009.) Moreover, the misconduct claim is without merit.


      B. Misconduct
      “‘“It is, of course, improper to make arguments to the jury that give it the
impression that ‘emotion may reign over reason,’ and to present ‘irrelevant
information or inflammatory rhetoric that diverts the jury’s attention from its
proper role, or invites an irrational, purely subjective response.’”’ [Citation.]”
(O’Malley, supra, 62 Cal.4th at pp. 1010-1011.)
      The prosecutor’s remarks were not an appeal to emotion and did not divert
the jury’s attention from its proper role. The prosecutor made comments while
going over in detail the specific evidence that proved the charges. Immediately
after making the remarks, the prosecutor concluded the argument by summarizing
that evidence: “[s]o the bottom line is S. told you what [appellant] did. He put his
private part in her private part. He put his fingers in her vagina two to five times.
He admits the digital penetration over and over. DNA proves his sperm is in her
vagina. And she has the significant vaginal injuries past her labia, proving blunt
force penetration by that penis. [¶] So the overwhelming evidence is the
defendant is guilty of all charges. And I would ask [you to] find so.” We conclude
that, in the context of the argument in which it was made, the remarks were an
appeal to the jury to take the case seriously even though appellant may not have
done so and to focus on the evidence of guilt. The prosecutor did not commit
misconduct.

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      Assuming, arguendo, the remarks were misconduct, there was no prejudice.
The comment was “‘brief and transitory’” and did not suggest the jury should
bypass the evidence and find defendant guilty in order to send him a message or
teach him a lesson. (O’Malley, supra, 62 Cal.4th at p. 1012.) Thus, there is “no
reasonable possibility the prosecutor’s brief remark could have affected the jury’s
decision.” (People v. Fierro (1991) 1 Cal.4th 173, 244.)


      C. Ineffective Assistance of Counsel
      Conceding that counsel’s failure to object forfeited the issue, appellant
recasts the issue as one of ineffective assistance of counsel. As we find no
misconduct, and, even if there was misconduct, no prejudice, counsel’s failure to
object was not ineffective assistance, and appellant was not prejudiced by
counsel’s failure to object.3 (See O’Malley, supra, 62 Cal.4th at p. 1010, fn. 12.)


II. CALCRIM No. 302
      Appellant contends the court prejudicially erred in failing to instruct sua
sponte pursuant to CALCRIM No. 302, which provides the jury with guidance on
how to evaluate conflicting evidence. We conclude there was no prejudicial error.
      CALCRIM No. 302 states: “If you determine there is a conflict in the
evidence, you must decide what evidence, if any, to believe. Do not simply count
the number of witnesses who agree or disagree on a point and accept the testimony
of the greater number of witnesses. On the other hand, do not disregard the

3
       “To establish ineffective assistance of counsel, a defendant must show that (1)
counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was
prejudicial[.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211.) If the defendant was not
prejudiced by counsel’s alleged deficiency, we need not decide whether counsel’s
performance was deficient. (In re Cox (2003) 30 Cal.4th 974, 1019-1020.)
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testimony of any witness without a reason or because of prejudice or a desire to
favor one side or the other. What is important is whether the testimony or any
other evidence convinces you, not just the number of witnesses who testify about a
certain point.”
      The instruction must be given in every criminal trial in which corroboration
is not required. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885
[addressing CALCRIM No. 302’s predecessor instruction, CALJIC No. 2.22].)
Where there is no reasonable probability the jury would have reached a result more
favorable to the defendant had the instruction been given, the judgment is not
reversible, because in that case, the failure to give the instruction would be
harmless. (See People v. Virgil (2011) 51 Cal.4th 1210, 1261-1262 [discussing
CALJIC No. 2.22].) (See also People v. Diaz (2015) 60 Cal.4th 1176, 1195
[failure to give a cautionary instruction].)
      The jury heard conflicting evidence concerning whether appellant had sexual
intercourse with S. and on how many occasions he engaged in digital penetration.
CALCRIM No. 302 should have been given, and the court’s failure to give it was
error. However, the error was harmless in the circumstances of this case.
      The jury received sufficient guidance on considering, evaluating and
weighing the evidence from other standard instructions, including CALCRIM Nos.
101 [cautionary admonitions: “keep an open mind throughout the trial”; “do not
let bias, sympathy, prejudice, or public opinion influence your decision”]; 220
[reasonable doubt: “you must impartially compare and consider all the evidence”];
223 [direct and circumstantial evidence defined – both “are acceptable . . . to prove
or disprove the elements of a charge”]; 226 [witnesses – guidance on determining
credibility]; 301 [single witness’s testimony]; 330 [testimony of child 10 years of
age or younger]; and 358 [evidence of defendant’s statements].

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      Moreover, the prosecutor did not suggest the jury could or should resolve
conflicts in the evidence solely on the number of witnesses who testified on each
side of the conflict or because of prejudice or a desire to favor one side over the
other. Further, there was no imbalance in the number of witnesses whose
testimony or statements conflicted: there was only S. on one side and appellant on
the other.
      As the instructions as a whole provided ample guidance to the jury on how
to evaluate the conflicting evidence in this case and there was no suggestion the
jury should or could resolve conflicts in an impermissible way, it is not reasonably
probable the jury would have reached a different result had CALCRIM No. 302
been given. Accordingly, the error in failing to give the instruction was harmless.
(See People v. Virgil, supra, 51 Cal.4th at p. 1262.)


                                  DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, J.




             We concur:




             EPSTEIN, P. J.                   COLLINS, J.

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