Filed 9/30/14 P. v. Castro CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G049023
v. (Super. Ct. No. 13CF0003)
MARIA CARACHURE CASTRO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed. Marianne Harguindeguy Cox, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for
Plaintiff and Respondent. * * * A jury convicted defendant Maria Carachure Castro of first degree
residential burglary. Castro contends the prosecutor engaged in prejudicial misconduct
during closing argument by improperly vouching for the credibility of witnesses and
impugning defense counsel’s motives and integrity. For the reasons expressed below, we
affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of December 31, 2012, Edward Murashie and his fiancée
Linda Grant arrived at the Santa Ana house they purchased in August 2012. Murashie
and Grant had hired workers to remodel the residence, which entailed restoring the
hardwood floors, tearing out the garage, redoing the driveway, and constructing brick and
tile work in the courtyard. Grant had moved furniture and personal effects into the home
in October 2012. The couple kept clothes and furniture in the home and the utilities were
on except when contractors turned the electricity off. According to Grant, she kept most of the property in boxes because of construction dust. Grant slept at the home four to five
nights a week after October, and Murashie also spent nights there.
The couple pulled into the driveway and noticed an older model van parked
on the street directly in front of the house. The rear passenger side door was open and
Murashie saw various items inside. Castro sat in the driver’s seat. As Murashie walked
down his driveway, the front door of the house opened, and he spotted someone standing
in the doorway. The person, later identified as Castro’s 14-year-old son F., wore a
hoodie and gloves, and carried a small flashlight. Murashie approached F., but F. ran
around him to the van, where he closed the door and then ran up the street and disappeared.
2 Murashie chased F. as far as the van, but believing the driver was about to
leave with his property, he opened the passenger door, jumped in, and grabbed Castro’s “hand which [was] on the keys to shut the car off.” He also shifted the transmission back
to park. As Murashie tussled with Castro, F. returned to intervene, pulling on Murashie’s
waist. A neighbor pulled the young man away from Murashie. Murashie responded he wanted Castro out of the car “so we can assess what’s going on here.” F. grabbed
Murashie’s dress shirts and tossed them at him, exclaiming, “Here’s your stuff.”
Murashie identified other items stolen from his house in the van, including more clothing,
his letterman jacket, a new area rug with tags attached, desert rose china dishware, and an
electrostatic ball. Other items had been placed by the front door. Moving boxes had
been torn open and packing material was scattered around. Wood had been chipped or
torn away from the lock area of the front door.
According to Officer David Garcia, Murashie told him Grant had moved
out of her apartment and was living at both the Santa Ana house and Murashie’s Fullerton apartment. Garcia testified at the preliminary hearing Murashie told him Grant
or he had slept two times or a “couple nights” at the house, a fact Garcia did not include
in his original police report. Garcia phoned Murashie after the preliminary hearing and
confirmed that information, and prepared a supplemental police report. Castro told
Garcia at the scene she and F. did not do anything wrong, although Garcia did not include
this statement in either of his police reports.
Garcia interviewed Castro at the police station. Castro stated she and her
son were collecting recyclables. She had parked near Flower and 19th Streets, a few
blocks south of Murashie’s and Grant’s house. F. told her the house appeared empty or under construction. She asked him to make sure no one was home. F. left to check, and
3 Castro parked in front of the residence. F. came out with a bundle of long-sleeved shirts,
placed them in the van, and announced there were “neat things” inside the home. Castro accompanied F. into the residence. She took a glass dish set, and told F. to carry an area
rug and place it in the van. Castro got back into the van while F. reentered the house.
The confrontation with Murashie occurred shortly afterward. Castro admitted it was a “dumb decision” to enter into the home and she apologized.
Castro told a different story on the witness stand. She claimed F. told her
he found the shirts in the trash outside the house and there were many other items outside
on the street. She and F. drove the short distance to the house. She walked up Flower
Street with her cart to collect items she believed were recyclables. She returned to the
van but did not see F. She waited about 15-20 minutes, then grew impatient and began
honking the horn. She saw a man approach the van, so she unlocked the doors and
started the engine. Murashie got in, sat down and yelled “my house” twice in English,
which she does not understand, and he grabbed her keys and exited the van. She did not know F. had gone into the house and did not see the other stolen items in the van until she
got out of the vehicle. Castro denied saying anything to the officer at the scene, but at
some point before they arrived at the police station she told him she “didn’t do anything.”
In the interview room, the officer asked if she entered the house. She said “no” and that
she “never did anything wrong.” Garcia warned her, “[F.] had already told him
everything.” She asked what would happen with F., and the officer replied it all
depended on whether she told the truth. She interpreted this to mean the officer wanted
her to admit going into the house. Frightened and intimidated, she acknowledged
entering the residence, believing this would make it easier for her son.
4 Following a trial in August 2013, the jury convicted Castro of first degree
residential burglary. In September 2013, the trial court suspended imposition of judgment and placed Castro on probation on various terms and conditions, including a
one-year jail term.
II DISCUSSION No Prosecutorial Misconduct
Castro contends the prosecutor engaged in prejudicial misconduct during
closing argument by improperly vouching for the credibility of witnesses and impugning
defense counsel’s motives and integrity.
During closing argument, the prosecutor stated defense counsel had “sort of
made a big deal” about Garcia’s report by asserting it was “shoddy” and Garcia did not
“take notes of every single person” he “talked to.” She continued “there was some talk
from [defense counsel] about . . . why didn’t you talk to this witness, the neighbor
[Martin, who Murashie testified pulled F. away during the struggle with Castro]? He
[Garcia] sat up there, took an oath to tell the truth, and told all of you . . . I talked to
everyone. I figured out who was important, who had actually seen what had happened, and I wrote that in my report. [¶] [Garcia] said the [neighbor] saw the tail-end of what
happened” and “didn’t have enough information for him to consider it valid to put in a
report. It was an honest answer. And does it affect anything about this case? No, it
doesn’t. [¶] You’ll hear the defense attorney probably want to make a big deal about that,
but both sides have the power of subpoena. If there’s someone you want – you think you
should have heard from, either side can call witnesses.”
5 The prosecutor then noted Garcia was a native Spanish speaker who could
communicate with Castro. She “told [Garcia] the whole story. And, again, he wrote a
detailed report about his conversation with her. [¶] You’ll probably hear defense counsel
say, oh, well, he didn’t record it so we can’t trust it. Well, Officer Garcia, this is his
living. He has to come in here on any case we call him in on and testify before you. Ask
yourselves would he risk his reputation, his livelihood . . . .”
Defense counsel objected, “Improper vouching.” The court overruled the
objection, declaring, “It’s absolutely proper commentary.” The prosecutor continued,
“Would he risk his livelihood, his career, his retirement, everything about his life to come
and lie to you, to make up a story about a woman he met one night that he arrested for a
crime that she had committed? He has no axe to grind. He doesn’t know her. He wrote
down the truth. He did his job.”
Later, the prosecutor made a similar argument: “Ms. Castro. What did she
tell the police that night? If you believe Officer Garcia wouldn’t put his career and
livelihood in jeopardy, come in here and completely lie and fabricate a story about a
woman he’s never met . . . .” Defense counsel again objected on grounds of “improper
vouching.” The court again overruled the objection. After recounting Garcia’s testimony concerning Castro’s statement, the
prosecutor stated, “Well, if Officer Garcia is such an awful person and lying and a
corrupt officer, why would he add in the fact that, oh, she actually said she – she
apologized, she felt bad, it was a dumb decision. Why make her sound like a nice,
remorseful person? It’s because he’s telling the truth.” Defense counsel did not object.
The prosecutor concluded closing argument by noting the only evidence
pointing to Castro’s innocence was her “self-serving testimony,” and she asked the jury
6 “to consider the evidence you heard from the witness stand. And I challenge [defense
counsel] to get up and not tell stories or anecdotes and just stick to the evidence that was
presented. Because that’s what’s important here, what you heard from three witnesses
and what happened that night.” Defense counsel did not object.
Defense counsel in closing argument described Castro’s purported
admissions as a “highly suspect, questionable confession that was eventually given by
[Castro] during aggressive police interrogation after her initial denials of any wrongdoing
were simply disregarded by the police and not even mentioned in any police report.”
Counsel denied suggesting Garcia was corrupt, but argued “[h]e made mistakes. His
memory was poor about many things,” and he assumed Castro’s guilt based on
“perceptions. To a hammer, everything looks like a nail. [¶] The police are in the
business of finding criminals, not innocent people.” Defense counsel referred to Castro’s
“so-called confession,” arguing it was not recorded and asked why “Officer Garcia made
the conscious decision to not record that interrogation[.]” Counsel emphasized Garcia’s
report did not include Castro’s initial denial of wrongdoing, failed to preserve his
interview notes, and “conveniently destroyed those notes and any reference to initial
denials of guilt.” Counsel also questioned the photographs showing clothes on the front passenger seat: “How do we know when those clothes . . . were placed there? Were they
moved before they were photographed?” Defense counsel argued Garcia’s credibility
was suspect: “Do you really believe that anyone ever told [Garcia] that somebody had
slept in that home” as “he testified [] at the preliminary hearing . . . when he was under
oath, even though he never recorded that important fact anywhere in his report.” Defense
counsel admonished the jury that if “somebody lied about something that you deem is
important, the law tells you you should consider not believing anything that they said.”
7 Counsel also questioned the prosecutor’s claim that Garcia had no motive to lie, arguing
“[h]uman beings have motives to embellish things . . . [and] even sometimes lie” and
police officers do lie “often[.] We read about it in newspapers. We hear about it on
television.” Counsel listed various examples of police corruption drawn from the news.
Counsel also stated “where is the evidence that if [Garcia] admitted to any of these
things, that his career is going to be gone? We don’t know that.”
The prosecutor rebutted defense counsel’s claim that he had not called “the
police corrupt, just incompetent. Well, let’s think about what he’s accused Officer Garcia
of doing. If that’s not being accused of corruption, I’m not sure what it is. [¶] He’s
saying Officer Garcia falsified his police report. A crime. He’s saying Officer Garcia
came in under penalty of perjury and lied to you.” Defense counsel objected this
misstated his arguments, but the court overruled him. The prosecutor continued, “A
serious crime. He’s saying Officer Garcia did a really shoddy investigation. Can’t be
trusted. Didn’t record anything so we can’t take anything he said to be the truth. . . .”
She noted defense counsel had suggested photographs had “been tampered with. How do
we know the clothes were there before the police might have moved them and took a
picture? It’s getting a little bit ridiculous at that point.” The prosecutor turned to defense counsel’s claim Castro was the victim of
aggressive interrogation. “He would have you believe she was strung up by her pinkie
toes and not given water, tortured, I don’t know. She was in a room speaking with a
police officer who spoke her language. I wouldn’t necessarily agree with the phrase
aggressively interrogated, but you can be the judge of that.” The prosecutor remarked the
“majority of the defense relies on the fact that you can’t trust Officer Garcia. Corrupt,
dishonest, whatever you want to call it, you can’t trust him.” The prosecutor concluded,
8 “Take Officer Garcia out of it. Disregard everything he said if you want to. And then
think about what’s left. It comes down to [Murashie and Grant], their credibility and
their version of what happened that night versus the story of the person sitting there on
trial.” The prosecutor then recounted some of their testimony, and stated “It’s that versus
a self-serving statement of I didn’t go in the house or my son did it. I didn’t know what
was going on. It’s enough. If you believe the victims and what they saw that night,
that’s enough. They were credible. They were honest. They had no reason to lie. They
remember that night.” Defense counsel objected to the prosecutor’s last statement as
“improper vouching,” but the court overruled the objection.
“A prosecutor may fairly comment on and argue any reasonable inferences
from the evidence. [Citation.] Comments on the state of the evidence or on the defense’s
failure to call logical witnesses, introduce material evidence, or rebut the People’s case
are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a
defendant has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.’ [Citations.] [¶] A prosecutor may not suggest the existence of “‘facts’”
outside of the record by arguing matters not in evidence. [Citation.] Nor may a
prosecutor suggest that matters outside the record establish the veracity of a witness; however, the prosecutor may assure the jury of a witness’s apparent honesty or reliability
based on matters in the record. [Citations.] It is also improper for a prosecutor to resort
to personal attacks on the integrity of opposing counsel. [Citation.]” (People v. Woods
(2006) 146 Cal.App.4th 106, 112-113.)
In People v. Anderson (1990) 52 Cal.3d 453 (Anderson), “the prosecutor
remarked that ‘A law enforcement officer is no good as a witness if his credibility is in
doubt,’ and in essence supported the credibility of the officers testifying in this case by
9 noting that ‘a number of them . . . are old, experienced officers. They’ve got 15, 20, 22
years of experience on the force.’ The prosecutor expressed her doubt that any of them
would ‘jeopardize’ his reputation by lying on the witness stand ‘just to convict one
defendant.’ The prosecutor continued by noting that defendant, on the other hand, would
only be testifying once, rather than a number of times, that he ‘doesn’t have anything else
to lose,’ and ‘so what if you do catch him in a few lies?’” (Id. at p. 478.) After noting
the general rule a prosecutor may not vouch for the credibility of prosecution witnesses,
or refer to evidence outside the record to bolster their credibility, the Supreme Court
observed “In the present case, the prosecutor limited her remarks to facts of record,
namely, the years of experience of the officers involved, and her ‘vouching’ was clearly
based on inferences reasonably drawn therefrom, rather than on her personal belief or
knowledge. [Citation.] We find no improper prosecutorial vouching here.” (Id. at
p. 479.)
Similarily, in People v. Caldwell (2013) 212 Cal.App.4th 1262, 1269, the
appellate court found no improper vouching “‘so long as a prosecutor’s assurances
regarding the apparent honesty or reliability of prosecution witnesses are based on the
“facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief.”’” (Id. at p. 1269.) The appellate court also
found no misconduct when the prosecutor argued “‘Why would [detectives] put their
career on the line for this case?’” and “‘What makes this case so special that these
officers would perjure themselves? What do they have against Mr. – poor Mr. Caldwell?
Nothing. . . . There is no reason for those officers to lie.’” (Id. at p. 1270.)
Castro argues “defense counsel never accused [Garcia] of being a corrupt
police officer in his questioning. Rather, he simply attempted to challenge him to what
10 he remembered, which was a proper method of cross-examination and providing a
defense. And even if defense counsel employed strident methods of questioning the
officer as to his sloppiness in reporting, this does not justify and make it fair game to
vouch for his credibility by means the prosecutor employed.”
We disagree. Despite defense counsel’s statements to the contrary, his
questions and argument at least implied Garcia had intentionally left material out of his
police reports, embellished his testimony, and manipulated evidence (the photographs of
items in the car) to bolster the case against Castro. Counsel’s reference to other police
corruption cases was hardly subtle. A police officer who lies or fabricates evidence does
place his career at risk. The prosecutor’s argument here did not stray beyond what
Anderson held was permissible.
As for the statements concerning Murashie and Grant, the prosecutor
argued, “They were credible. They were honest. They had no reason to lie. They
remember that night.” The prosecutor may properly comment on the credibility of
witnesses based on the witness’s testimony, demeanor, and other evidence presented at
trial. Here, the prosecutor did not suggest she had any information outside the record that
made these witnesses credible, instead relying on their demeanor during their testimony. These statements did not constitute improper vouching. (People v. Sully (1991)
53 Cal.3d 1195, 1235 [“Considered in context, almost all of the examples cited amounted
to argument from facts in the record directed to the credibility of witnesses, not the
personal statement of the prosecutor vouching for their credibility”].)
Castro also complains “the prosecutor directly attacked his lawyer’s
honesty and integrity, citing the prosecutor’s argument “to consider the evidence you
heard from the witness stand. And I challenge [defense counsel] to get up and not tell
11 stories or anecdotes and just stick to the evidence that was presented. Because that’s
what’s important here, what you heard.” Castro failed to object to this statement and
accordingly cannot now raise a claim of misconduct on appeal. (Anderson, supra,
52 Cal.3d at p. 478.) In any event, the prosecutor’s statement did not constitute a
personal attack on defense counsel or imply defense counsel had an improper motive or
lacked integrity. She simply urged the jury to focus on the evidence rather than counsel’s
illustrative personal and historical examples. (See People v. Taylor (2001) 26 Cal.4th
1155, 1166-1167 [prosecutor does not demean defense counsel’s integrity by
commenting on defense attorney techniques to “‘“try to draw some speculation, try to get
[jury] to buy something’”].)
Castro also argues the prosecutor “attack[ed] the integrity of defense
counsel . . . by misstating that defense counsel had accused the officer of a crime” or
corruption. As noted above, counsel’s argument did carry this implication concerning
Garcia. The prosecutor’s remark about what she perceived as the unwarranted maligning
of Garcia did not constitute an attack on counsel’s honesty, morals or character.
Finally, the prosecutor’s rebuttal argument disputing defense counsel’s
characterization of Castro’s interrogation did not constitute misconduct. We reject Castro’s claim the prosecutor attacked “defense counsel’s motives and integrity” when
she characterized defense counsel’s argument as urging the jury to “believe [Castro] was
strung up by her pinkie toes and not given water, tortured I don’t know.” The prosecutor
merely took issue with defense counsel’s characterization of “the highly suspect,
questionable confession that was eventually given by [Castro] during aggressive police
interrogation after her initial denials of any wrongdoing were simply disregarded by the
12 police and not even mentioned in any police report.” No basis exists to overturn the
judgment.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
THOMPSON, J.