People v. Lopez

• Decision Date: 28 January 2008
• Docket Number: No. S143615.,S143615.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Fernando LOPEZ, Defendant and Appellant.

71 Cal.Rptr.3d 253

42 Cal.4th 960

175 P.3d 4

The PEOPLE, Plaintiff and Respondent, v. Fernando LOPEZ, Defendant and Appellant.

No. S143615.

Supreme Court of California.

January 28, 2008.

Mark D. Lenenberg, under appointment by the Supreme Court, Simi Valley, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Kristofer Jorstad, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, Steve Cooley, District Attorney (Los Angeles), Lael Rubin, Brentford J. Ferreira and Roberta T. Schwartz, Deputy District Attorneys, for Los Angles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

KENNARD, J.

In this case, a jury convicted defendant, a Catholic priest, of seven sex offenses involving three teenage youths. The Court of Appeal reversed the convictions, concluding that the prosecutor committed misconduct in her closing and rebuttal arguments to the jury, and that defense counsel's failure to object to the misconduct violated defendant's constitutional right to the effective assistance of counsel. We hold that the prosecutor's comments were not misconduct and that defense counsel was not incompetent for not objecting.

I

A. Victim Gerardo V.

Gerardo V., who lived with his grandmother, attended school and religious services at Saint Thomas the Apostle Parish (St. Thomas), a Catholic church in Los Angeles. One day when he was approximately 13 years old, he made his confession to defendant, a priest at St". Thomas. In the confession, which took place in an office rather than a confessional because the church had been destroyed in a fire, Gerardo said he had engaged in sexual activity with his girlfriend. Defendant asked for details. At the end of the confession, defendant hugged Gerardo, who noticed that defendant had an erection.

When Gerardo's grandmother later became terminally ill, defendant helped out Gerardo in running errands for his family in defendant's car. On four different occasions when Gerardo was 13 or 14 years old, defendant engaged in sexual conduct with him in the car, once touching his penis, twice masturbating him, and once orally copulating him. Another time, when Gerardo was working in the church office, he asked defendant if he could confess. Defendant told Gerardo to come to defendant's bedroom, where he masturbated Gerardo and orally copulated him.

B. Victim Luis B.

When Luis B. was 19 or 20 years old, he attended church services at St. Thomas and got in line for confession. Defendant, the priest on duty, told Luis to come to his office. When Luis did so, defendant escorted Luis to his bedroom. After removing his own shirt, defendant helped to take off Luis's shirt. When Luis tried to leave, defendant locked the bedroom door and told him not to leave because it would not look good for Luis to come out of defendant's bedroom without a shirt on. Defendant then removed Luis's pants and put his hand on Luis's penis. When Luis asked him not to do so, defendant told Luis that "all the guys liked it." Defendant kept Luis's hand on defendant's penis and masturbated. Defendant told Luis to swear that he would never tell anyone what happened.

C. Victim Nicolas M.

When Nicolas M. was 16 years old, he visited his brother Edgar, an employee at St. Thomas. Edgar introduced Nicolas to defendant, who put his arm around Nicolas and squeezed his chest. Thereafter, defendant repeatedly telephoned Nicolas at home to talk about sports and Nicolas's confirmation. Once when Nicolas was 17 years old, defendant telephoned and invited Nicolas to dinner. As they were driving to the restaurant, defendant held Nicolas's hand and rubbed Nicolas's leg above the knee. After the meal, defendant said he was going to take Nicolas to visit defendant's mother. Instead, he drove to a deserted area, where he took off his seat belt, pulled Nicolas's head over so that they were cheek to cheek, and rubbed Nicolas's legs and groin outside of his clothing. When defendant tried to put his hand inside Nicolas's pants, Nicolas asked where defendant's mother worked. Defendant put his seat belt on and drove Nicolas home.

On another occasion, Nicolas attended a church-sponsored retreat in Victorville Southern California. When Nicolas went to make his confession, it was defendant who heard the confession, which took place in a room with bunk beds. After Nicolas confessed to defendant that he had been sexually active, defendant rubbed Nicolas's leg and held his hand. Placing his hand on Nicolas's neck, he drew Nicolas over so that their heads were cheek to cheek. When they were back in Los Angeles, they attended a ceremony at St. Thomas for people who had attended the Victorville retreat. After the ceremony, defendant took Nicolas to the church basement to get a broom. There he sat next to Nicolas and rubbed Nicolas's leg and inner thigh.

D. Criminal Charges

Defendant was charged with five felonies: with respect to Gerardo V., four counts of engaging in a lewd act on a child who was 14 or 15 years old and at least 10 years younger than defendant (Pen.Code, § 288, subd. (c)(1)); and as to Luis B., one count of sexual battery by restraint (id., § 243.4, subd. (a)). With respect to Nicolas M., defendant was charged with three misdemeanors: one count of sexual battery (id., § 243.4, subd. (e)(1)), and two counts of annoying or molesting a child under the age of 18 (id., § 647.6, subd. (a)(1)). At trial, Gerardo, Luis, and Nicolas testified as described above. Testifying in his own defense, defendant denied engaging in the sexual conduct attributed to him by the three victims. The jury convicted defendant on all counts, and the trial court imposed a prison term totaling six years eight months.

II

The Court of Appeal held that the prosecutor engaged in three types of misconduct in her closing and rebuttal arguments to the jury: (1) She asked the jury to view the crimes through the eyes of the victims; (2) she argued a theory of guilt by association, attempting to link defendant to other priests who had committed acts of molestation; and (3) she expressed her personal belief in defendant's guilt. The Court of Appeal acknowledged that the lack of an objection at trial barred defendant from arguing on appeal that the prosecutor's conduct required reversal of his convictions. Nevertheless, the Court of Appeal reversed the judgment because, in the court's view, defense counsel's failure to object denied defendant his constitutional right to the effective assistance of counsel. We examine that holding below.

We begin with a summary of the well-established legal principles governing claims of prosecutorial misconduct and ineffective assistance of counsel, followed by an analysis of the three types of prosecutorial misconduct at issue here.

"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, 106 S.Ct. 2464, 91 L.Ed.2d 144; see People v. Cash (2002) 28 Cal.4th 703, 733, 122 Cal.Rptr.2d 545, 50 P.3d 332.) 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, 47 Cal.Rptr.3d 22, 139 P.3d 492, italics added; see also People v. Hoyos (2007) 41 Cal.4th 872, 923, 63 Cal.Rptr.3d 1, 162 P.3d 528; People v. Ledesma (2006) 39 Cal.4th 641, 726, 47 Cal.Rptr.3d 326, 140 P.3d 657.)

"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, 61 Cal.Rptr.3d 461, 161 P.3d 3.) A defendant Whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, 62 Cal.Rptr.2d 437, 933 P.2d 1134.)

"In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it `fell below an objective standard of reasonableness [¶] ... under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that `counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record `sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected `unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a `reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (People v. Ledesma, supra, 39 Cal.4th at pp. 745-746, 47 Cal.Rptr.3d 326, ...