People v. Katzenberger

• Decision Date: 02 November 2009
• Docket Number: No. C058883.,C058883.
• Citation: 178 Cal.App.4th 1260,101 Cal. Rptr. 3d 122
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. HERBERT AARON KATZENBERGER, Defendant and Appellant.

178 Cal.App.4th 1260

101 Cal. Rptr. 3d 122

THE PEOPLE, Plaintiff and Respondent, v. HERBERT AARON KATZENBERGER, Defendant and Appellant.

No. C058883.

Court of Appeals of California, Third District.

November 2, 2009.

Kathleen M. Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Kari L. Ricci, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CANTIL-SAKAUYE, J. —

Defendant Herbert Aaron Katzenberger was convicted by a jury of inflicting corporal injury on the mother of his child in violation of Penal Code section 273.5, subdivision (a).¹ He separately admitted serving a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to state prison for a total of four years, comprised of the middle term of three years for his section 273.5 conviction and one year for the prior prison term enhancement.

His sole claim on appeal relates to a PowerPoint presentation used by the prosecutor in her closing argument to illustrate the reasonable doubt standard. The PowerPoint presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came onto the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted "beyond a reasonable doubt" even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty. The trial court overruled defendant's objection to the presentation. Defendant now claims reversal is required because the prosecutor's PowerPoint presentation was prosecutorial misconduct denigrating the reasonable doubt standard. We conclude the presentation was improper, but not prejudicial in this case. We shall affirm the judgment.

FACTUAL BACKGROUND

Defendant and Erica Esquivel dated for two and a half years and had a daughter together.

In early June 2007, Esquivel agreed to meet defendant at his home, so that he could visit with their then 11-month-old daughter. When Esquivel arrived shortly before 10:00 p.m., defendant was not at the house, but a man named Rudy was on the front porch. Esquivel was unhappy that Rudy was there and defendant was not.

Defendant drove up and parked in the driveway as Esquivel was getting out of her car. Defendant got out of his car and walked over to Esquivel, who was standing by her car door. Defendant and Esquivel argued. Esquivel threw her hands up, either to protect her face when she thought defendant was going to hit her or as a gesture of her being upset. Defendant then punched her in her left ribs with his fist. Esquivel fell to the ground. Defendant told her to get in the house, but Esquivel got back in her car and locked the doors. She drove a short distance away and called the police.

When officers arrived at approximately 10:45 p.m., Esquivel told them defendant had punched her and lifted her shirt to show them where he had hit her. Yuba City Police Officer Thomas Mathews used a low-powered flashlight to examine Esquivel's side, but did not see anything abnormal. Yuba City Police Officer Jason Davis looked at Esquivel's skin under the available dim streetlight. He did not notice any marks either. Esquivel was in pain and had been crying, but she did not request medical treatment.

The next day Esquivel went to the hospital because of the pain in her ribs. Hospital personnel took an X-ray of her chest, but not of her left side. Esquivel was told she had no broken bones and was given pain medication.

The following day Esquivel went back to the police department to have photographs taken of the bruise that had developed where defendant hit her. Yuba City Police Officer Bill Williams took photos of the bruise, which were shown to the jury at trial. The bruise was approximately four inches in diameter and red to dark purple in color.

In late July 2007, Esquivel went to see her doctor because the bruise had gotten bigger, the area was swollen and she was still in pain. The doctor sent her back to the hospital where an X-ray of her left side was taken. The X-ray showed two of Esquivel's ribs were broken.

Defendant presented one witness, Amber Lovell. Lovell was an acquaintance of defendant. Lovell was in defendant's car on the day in June 2007 when defendant met Esquivel at his home. From her position in defendant's SUV, Lovell heard defendant and Esquivel talking and arguing behind her. She was able to turn around and look out the back window between the headrests on the backseat and see defendant and Esquivel. She admitted she did not watch defendant for the entire time he was talking to Esquivel, but claimed she could hear everything that was said, even though the windows were rolled up. She testified she never heard any blows being struck and never saw Esquivel fall to the ground. Lovell testified Esquivel did appear to be upset and crying. Lovell also testified Rudy was sitting in a chair on the porch the entire time and saw everything. Defendant did not call Rudy to testify.

DISCUSSION

Background

The prosecutor finished her closing argument to the jury with several comments regarding the reasonable doubt standard. She quoted the portion of the jury instruction on reasonable doubt that informs the jury that "[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt." (CALCRIM No. 220.) She then informed the jury that "[t]here's a little picture that's going to come up here on the screen and I'm going to talk as the picture is coming up. It's [sic] relates to the jury instruction that I just read you. We know what this picture is even before all the pieces come up."

At this point, the prosecutor apparently started a PowerPoint program, which has been added to the record on appeal as part of a settled statement. The PowerPoint program begins with a blue screen. When the program is started, a slide show begins in which six different puzzle pieces of a picture come onto the screen sequentially. The picture is immediately and easily recognizable as the Statue of Liberty. The slide show finishes when the sixth puzzle piece is in place, leaving two rectangular pieces missing from the picture of the Statue of Liberty—one in the center of the image that includes a portion of the statue's face and one in the upper left-hand corner of the image.

Defendant objected to the picture and asked that it be marked as a court exhibit "because it certainly does demean the reasonable doubt instruction." The prosecutor responded that it was simply an illustrative example of reasonable doubt. "It's the same way a verbal example, a story would be used. I've chosen a picture." The trial court overruled defendant's objection, noting "the Court is not offended."

The prosecutor went on to tell the jury that "[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that's a picture of the Statue of Liberty, we don't need all the pieces of the [sic] it. And ladies and gentlemen, if we fill in the other two pieces [at this point the prosecutor apparently clicks the computer mouse again, which triggers the program to add the upper left-hand rectangle that includes the image of the torch in the statue's right hand and the central rectangle that completes the entire image of the statue], we see that it is, in fact, the [S]tatue of [L]iberty. And I will tell you in this case, your standard is to judge this case beyond a reasonable doubt." The prosecutor argued such standard was met by the evidence.

Defendant argued in his closing argument that there was "plenty of doubt in this case." He claimed "the picture of the Statue of Liberty, showing you what the prosecutor feels reasonable doubt [i]s a travesty and I object to it because that's not reasonable doubt at all." Defendant went on to describe the high standard required for beyond a reasonable doubt and argued it was not met in this case because defendant did not cause the injury to Esquivel.

After a brief rebuttal argument by the prosecution, the trial court told the jury that to "clarify things," it would read the instructions on reasonable doubt. It reminded the jury that it would have the instructions in the jury room. The trial court read the jury instructions.

After less than 45 minutes of deliberation, the jury returned with a verdict finding defendant guilty.

Analysis

Defendant claims on appeal "[t]he prosecutor committed misconduct when she presented her `illustration' of the reasonable doubt standard to the jury and equated the jury's fact-finding duty and process with the process used to identify an iconic image ...." Defendant claims the presentation lowered the burden of proof by impermissibly likening the reasonable doubt standard to the standard a juror would utilize in making everyday decisions. (People v. Brannon (1873) 47 Cal. 96, 97; People v. Johnson (2004) 119 Cal.App.4th 976, 980-982, 986 ; People v. Nguyen (1995) 40 Cal.App.4th 28, 36 .) Defendant claims the prosecutor told the jury that it could reach a guilty verdict even though information was missing, i.e., that the prosecutor essentially and improperly suggested the jury conclude "where there's smoke there's fire."

(1) As the California Supreme Court recently explained, "The standards governing review of misconduct claims are settled. `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,...