Filed 8/25/26 P. v. Morales CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, F089561
Plaintiff and Respondent, (Super. Ct. No. BF199120A)
v.
WILDSON ERIBERTO TOL MORALES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Tiffany E.
Organ-Bowles, Judge.
Jake E. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and Jessica A Eros, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2024, appellant Wildson Eriberto Tol Morales had a heated argument with his wife, who locked herself inside a bedroom with their one-year-old toddler. Appellant forced open the locked bedroom door with scissors, and, during the incident, his wife’s fingers were cut on the scissors. Their teenaged son called 911 and reported that his father was hitting his mother. The incident ended when the teenaged son intervened and choked his father into unconsciousness. The wife reported to responding officers that night that appellant tried to stab her while she was holding the toddler.
The jury convicted appellant of four felonies: (1) Corporal injury to a spouse (Pen. Code, § 273.5, subd. (a); count 1).1 The jury found true that appellant personally used scissors as a deadly or dangerous weapon (§ 12022, subd. (b)(1));
(2) Assault with a deadly weapon (§ 245, subd. (a)(1); count 2); (3) False imprisonment by violence (§ 236; count 3); and (4) Child abuse (§ 273a, subd. (a); count 4). For the corporal injury to his wife, appellant was sentenced to prison for the midterm of three years, with a consecutive one-year enhancement for using the scissors as a deadly and dangerous weapon. For the child abuse, appellant received a consecutive term of one year four months. Midterm sentences were imposed in the remaining two counts, which were stayed.
Appellant raises two issues in the present appeal. He contends the trial court erred in failing to instruct the jury on misdemeanor child abuse. He also argues the prosecutor made improper comments to the jury. We reject appellant’s claims and affirm.
1 All future statutory references are to the Penal Code unless otherwise noted.
BACKGROUND
We summarize the relevant facts pertinent to the issues raised on appeal, viewing the record in the light most favorable to the judgment. (See In re Jesus O. (2007) 40 Cal.4th 859, 861; People v. Johnson (1980) 26 Cal.3d 557, 578.)
I. The 911 Call.
On April 4, 2024, at approximately 1:00 a.m., law enforcement received a 911 call from appellant’s 14-year-old son. The son reported that his father was drunk and “hitting my mom.” The 911 operator heard a baby crying in the background. The son stated that his “dad and mom are probably fighting right now,” the situation was “escalating” and “my mom is calling for help.”
II. Law Enforcement’s Response.
A short time after the 911 call, multiple officers responded to the scene. Appellant was found lying unconscious inside the residence. He had no visible cuts or injuries.
Officers observed blood in various spots in the residence, including splatters on the floor and in the hallway, bloody handprints on a door, blood on a wall, and bloody fingerprints near a light switch. A pair of orange scissors with blood on the blade and a half-pair of black scissors were found. Appellant’s wife had visible injuries that were photographed.
III. The Police Interviews.
Officers separately interviewed the 14-year-old son and appellant’s wife; the recorded interviews were played for the jury.
On the night of this incident, the son reported that he heard screaming, saw his father hitting his mother, and she was calling for help. He saw his father “on top of” his mother and he believed his father had scissors in his right hand. The son reported that he put his father in a chokehold and pulled him off his mother.
In her recorded interview, appellant’s wife stated they had returned from a party, appellant was “very drunk,” and he “wanted to start hitting” her. She reported locking herself in her bedroom. According to the wife, she was holding their one-year-old toddler in her arms while appellant attacked her with orange and green colored scissors. However, she denied that the toddler had been in danger. The wife reported that appellant tried to stab her two to four times, she grabbed the scissors while still holding the baby, and she cut her hands in the process. She yelled for her 14-year-old son to help her, and her son came and grabbed appellant.
As seen on an officer’s body camera, appellant’s wife received medical attention on the night of this incident from a first responder. It appears that she had a small cut near her mouth, as well as cuts to fingers on her left hand. She declined to be taken to a hospital.2
IV. The Video Recording of the Incident.
A video camera inside the residence captured part of the incident. When the recording starts, the toddler is alone in the living room. The toddler appears to wander into the room where his parents are arguing; loud voices can be heard, and a young child can be heard crying.
Approximately one minute and 48 seconds into the recording, the toddler wanders out and returns to the living room. At about two minutes six seconds, the 14-year-old son is seen exiting his bedroom, crossing the hallway, and entering the opposite room. The son is seen bending over and he pulls his father into the hallway, wrapping his arms around his father’s neck in a chokehold. His father is not resisting, and he is quickly subdued. It appears that appellant becomes unconscious during this chokehold. A short time later, officers arrive on scene.
2 At the close of its case, the prosecution dismissed great bodily injury enhancements (§ 12022.7, subd. (e)) that had been alleged in counts 1 and 2 regarding appellant’s wife.
At trial, a responding officer observed nothing unusual about the toddler, who had no apparent injuries. However, there was a small amount of blood on the baby’s clothing. The officer confirmed the toddler seemed “fine.”
V. The Trial Testimony.
At trial, both the son (now 15 years old) and appellant’s wife gave testimony that differed in significant respects from their statements on the night of the incident. The son testified that he had only a vague memory of the events. He denied seeing his father on top of his mother, could not remember seeing his father with scissors, and was not sure if he saw his mother bleeding. He recalled putting his father in a chokehold and taking him to the ground but had “no idea” why he did so. He denied having any trauma from this event or fearing his father.
Appellant’s wife largely recanted her original account. She denied that appellant attacked her with scissors. The wife claimed that appellant had only been trying to open the locked bedroom door with the scissors while she and the toddler were inside. She admitted that appellant pulled her hair but denied that he grabbed her by the neck or tried to stab her. She acknowledged both she and appellant had been drinking that night.
Appellant testified at trial. He denied attacking his wife with scissors. He claimed he used the scissors only to try to open the locked bedroom door, and his wife cut herself by pulling the scissors away. He asserted that his wife then charged him, and a mutual hair-grabbing struggle occurred. He acknowledged that their son had intervened.
DISCUSSION
I. Any Potential Instructional Error is Harmless Regarding Misdemeanor Child Abuse. In count 4, appellant was charged with felony child abuse (§ 273a, subd. (a)). The jury was instructed on the elements necessary for this charge.
In the present claim, appellant contends the trial court erred in failing to instruct the jury on the lesser included offense of misdemeanor child abuse. According to appellant, this error was prejudicial, requiring reversal of count 4.
A. The applicable law. Section 273a, subdivision (a), makes it a felony when “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.”
The sole distinguishing element between felony and misdemeanor child abuse is the level of risk to the child. Felony child abuse requires the child to be endangered under circumstances or conditions “likely to produce great bodily harm or death.” (§ 273a, subd. (a); CALCRIM No. 821.) In contrast, the misdemeanor applies to the same conduct but under circumstances or conditions “other than those likely to produce great bodily harm or death.” (§ 273a, subd. (b); CALCRIM No. 823.) The term “great bodily harm” means “significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.” Actual injury to the child is not required for a felony conviction. (CALCRIM No. 821.)
Misdemeanor child abuse is a lesser included offense of felony child abuse.
(People v. Moussabeck (2007) 157 Cal.App.4th 975, 980.) A trial court has a sua sponte duty to instruct on a lesser included offense when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser offense but not the greater offense. (People v. Shockley (2013) 58 Cal.4th 400, 403; People v. Cook (2006) 39 Cal.4th 566, 596.)
B. Any presumed error is harmless. The parties dispute whether the trial court was obligated to instruct the jury on misdemeanor child abuse. In general, appellant highlights portions of the trial evidence that minimized the severity of this incident. He argues that, for the toddler, the circumstances were not likely to produce great bodily injury or death. In contrast, respondent contends that the trial testimony was “unreliable” and did not amount to substantial evidence warranting an instruction on misdemeanor child abuse.
We need not resolve the parties’ disagreement on this issue. Instead, we agree with respondent that, even if the court had a duty to instruct the jury on misdemeanor child abuse, any assumed error is nevertheless harmless under the state standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, appellant bears the burden to demonstrate prejudicial error. (People v. Sivongxxay (2017) 3 Cal.5th 151, 178; People v. Hernandez (2011) 51 Cal.4th 733, 746; People v. Alexander (2010) 49 Cal.4th 846, 910.)
To demonstrate prejudice in this matter, appellant contends this was a “close” case and there is a reasonable chance “a single juror would have found this incident constituted a misdemeanor instead of a felony had they been instructed on the lesser included offense of child abuse.”
Appellant relies primarily on his wife’s trial testimony, which minimized the incident. Appellant also notes that, at the close of its case, the prosecutor dismissed great bodily injury enhancements (§ 12022.7, subd. (e)) that had been alleged in counts 1 and 2 regarding appellant’s wife. According to appellant, the totality of the evidence reflects “contested perspectives” regarding the level of potential harm surrounding this incident.
We are not persuaded. The totality of this record amply demonstrates that, even if instructional error occurred—a finding we do not make—it is not reasonably probable appellant would have received a more favorable outcome.
During closing argument, the defense asserted that appellant was not guilty on all counts. According to the defense, there was no evidence that appellant held scissors and stood over his wife while she was holding the toddler.
Regarding the charge in count 4, the defense argued that the small “dot” of blood on the toddler’s shirt could have been put there after the incident. The defense noted that the toddler was seen on video in the living room during part of the altercation. No scissors were visible in appellant’s hand when his son took control of him. The defense maintained that the toddler was happy and did not remember anything afterwards. According to the defense, nothing showed that appellant’s wife was actually holding the toddler during this incident.
This record does not support appellant’s position that there is a reasonable chance at least one juror would have convicted him of misdemeanor child abuse instead of the felony had the court instructed on the lesser included offense. On the night of this incident, officers observed blood throughout the residence and discovered bloody scissors. Appellant was found unconscious lying on the floor. He did not have any apparent cuts or injuries. The wife told officers that appellant attacked her with scissors while she held the toddler in her arms, that appellant tried to stab her two to four times, and that she cut her fingers while grabbing the scissors. Their teenaged son told officers that night that he saw his father on top of his mother and believed his father had scissors. The son intervened and put his father in a chokehold.
Based on the verdicts, the jury rejected appellant’s claim that he did not attack his wife with scissors. In count 1, the jury convicted appellant of felony corporal injury to a spouse (§ 273.5, subd. (a)) and found true the allegation that he personally used a deadly or dangerous weapon, to wit, scissors (§ 12022, subd. (b)(1)). In count 2, the jury convicted appellant of assault with a deadly weapon (§ 245, subd. (a)(1)). In count 3, the jury convicted appellant of felony false imprisonment by violence (§ 236).
The jury’s verdicts on counts 1, 2, and 3—including the true finding that appellant personally used scissors as a deadly or dangerous weapon—demonstrate that it rejected the minimized trial version and credited the violent account from the night of the incident. The jury’s verdicts conclusively show that it found true the facts that overwhelmingly established the toddler was exposed to circumstances that gave rise to felony liability. (§ 273a, subd. (a); CALCRIM No. 821.)
The dismissal of the great bodily injury enhancement allegations regarding appellant’s wife does not materially advance appellant’s argument. The issue under section 273a, subdivision (a), is not whether great bodily injury was actually inflicted on the wife or the toddler. Instead, appellant’s liability for felony child abuse is based on the circumstances he created that were likely to produce great bodily harm or death. The prosecution’s inability to establish great bodily injury on the wife does not significantly diminish the force of the overall evidence that demonstrated the degree of danger created by appellant’s conduct.
Based on this record, there is no reasonable probability appellant would have received a more favorable outcome had the jury been instructed on the lesser included offense of misdemeanor child abuse. (See Watson, supra, 46 Cal.2d at p. 836 [setting this standard].) Accordingly, any presumed instructional error is harmless under Watson. Appellant has failed to meet his burden to show prejudice, and this claim fails.
II. The Prosecutor Did Not Improperly Vouch on the State of the Evidence and Any Assumed Error Is Harmless. At the close of the prosecution’s case, the trial court granted the People’s motion to dismiss great bodily injury enhancements (§ 12022.7, subd. (e)) that had been alleged as to counts 1 and 2 regarding appellant’s wife. The following day, the court informed the jury of this dismissal. In response to the court’s inquiry, the prosecutor stated: “Yes, Your Honor. The People did not prove that beyond a reasonable doubt, so we move to strike.”
Outside the presence of the jury, defense counsel objected, arguing that the prosecutor had improperly vouched to the jury when stating that the dismissed charges had not been established beyond a reasonable doubt. The trial court disagreed, noting that the prosecutor had an ethical duty not to pursue charges that could not be established beyond a reasonable doubt. The trial court found no error.
In the present claim, appellant contends that the prosecutor’s statement constituted improper vouching. According to appellant, the prosecutor offered his personal opinion on the state of the evidence, invaded the province of the jury, and invited the jury to infer that the prosecution would not have proceeded on the remaining counts unless it believed appellant was guilty. Furthermore, appellant contends that this alleged vouching was “exacerbated” during closing argument when the prosecutor stated that the jury did not need to review any lesser included offenses because appellant was “guilty of the main charges.” Appellant maintains that he was prejudiced from these statements, which constituted misconduct. He seeks reversal of his judgment and a new trial on all counts.
We reject appellant’s arguments. The prosecutor’s comments did not constitute improper vouching. Furthermore, appellant has forfeited his argument about the statement made during closing argument based on a failure to object. Finally, we conclude that, even if error occurred, appellant was not prejudiced.
A. The applicable law. A prosecutor’s behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) A prosecutor commits misconduct under state law if he or she uses deceptive or reprehensible methods to persuade the jury. (Ibid.)
It is misconduct for a prosecutor to vouch for the strength of the case by suggesting he possesses information not presented to the jury or by invoking his personal prestige or the prestige of the office. (People v. Anderson (2018) 5 Cal.5th 372, 415.)
When a claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury improperly construed or applied the remarks. (People v. Hubbard (2020) 52 Cal.App.5th 555, 562.)
B. The standard of review. We review de novo whether the prosecutor’s remarks constituted misconduct.
(People v. Hubbard, supra, 52 Cal.App.5th at p. 562.) However, we apply an abuse of discretion standard regarding the trial court’s ruling. (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
C. The prosecutor’s comment about the dismissed enhancements. When asked by the trial court if it was true that certain enhancements were dismissed, the prosecutor said, “Yes” and briefly explained that the trial evidence did not support a true finding on those allegations beyond a reasonable doubt. We agree with the trial court’s assessment that the prosecutor’s disputed statement did not amount to improper vouching.
The prosecutor’s statement was not an argument directed at the jury. It was a short, responsive explanation to the court’s query about whether it was true these enhancements were dismissed. The prosecutor was simply conceding that the trial evidence did not support these allegations. This exchange cannot be construed as conduct so egregious that it denied due process. Likewise, the prosecutor’s statement cannot reasonably be viewed as a deceptive or reprehensible method to persuade the jury. Accordingly, this brief moment did not amount to misconduct under either federal or state law. (See People v. Hill, supra, 17 Cal.4th at p. 819.)
Moreover, the prosecutor’s statement did not suggest that the prosecution possessed information outside the record, it did not express a personal belief in appellant’s guilt on the remaining charges, and it did not reasonably invoke the prestige of the prosecutor’s office. In short, this exchange did not amount to improper vouching. We discern no abuse of discretion when the trial court rejected the defense’s concern.
D. The prosecutor’s disputed statement during closing argument. During closing argument, the prosecutor stated that the jury did not need to review any lesser included offenses because appellant was “guilty of the main charges.” Appellant contends that this statement was a further example of improper vouching. We disagree.
As an initial matter, this portion of appellant’s claim is forfeited. He never objected below or asked for an admonition when the prosecutor made this disputed remark during closing. His failure to raise this issue below results in its forfeiture. (People v. Lewis (2009) 46 Cal.4th 1255, 1314; People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
Even if the forfeiture doctrine did not apply, this brief statement during closing argument did not amount to misconduct or improper vouching. Instead, it was permissible argument regarding the relationship between the charged offenses and the lesser included offenses.
When the prosecutor made this statement, he was explaining to the jury how to fill out the verdict forms. In doing so, the prosecutor noted that the court had instructed on certain lesser included charges, which the prosecutor had failed to address with the jury. The prosecutor explained that it had not mentioned the lesser charges because appellant “is guilty of the main charges.” Viewed in context, the prosecutor’s comment was an explanation why he did not address all of the charges before the jurors and that, if the jury found the evidence sufficient to convict on the greater offenses, it need not consider the lesser included offenses.
Based on this record, we conclude that neither statement—whether viewed individually or collectively—constituted misconduct. As such, the trial court did not abuse its discretion in rejecting appellant’s first concern, and appellant’s second concern is deemed forfeited from a failure to object.
E. Any assumed error is harmless. Appellant contends that this was a close case. He notes that, during deliberations, the jury posed two questions to the court. He further notes that, when dismissing the great bodily injury enhancements, the trial court said it had not heard much evidence supporting those enhancements. Appellant also notes that, in the bifurcated trial, the court did not find true all of the alleged factors in aggravation. According to appellant, the prosecution’s case lacked evidence of serious injuries. As such, the prosecutor “artificially bolstered its narrative” by assuring the jurors that it would not move forward with the charges unless he could prove them beyond a reasonable doubt, and the prosecutor additionally directed the jurors to not consider lesser included offenses.
Appellant’s arguments are unpersuasive. Even assuming that one or both statements were improper, any error was harmless under either the federal due process standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) or the state standard of Watson, supra, 46 Cal.2d 818.
The prosecutor’s comments were brief and isolated. They did not involve deception or reprehensible methods, nor did they create a pattern of egregious behavior that infected the trial with unfairness.
The jury’s questions to the court during deliberations in no way demonstrate that the prosecutor’s comments were prejudicial. In one jury note, some of the jurors wanted clarification if they could translate for themselves the Spanish heard in some of the recordings. In the other note, the jury needed technical help to play some recordings.
Based on the verdicts rendered, it is apparent that the jurors rejected appellant’s trial testimony that he did not attack his wife. To the contrary, the evidence overwhelmingly demonstrated that appellant attacked his wife with scissors. His wife was cut, and blood was found throughout the residence. Appellant’s son had to intervene, rendering appellant unconscious. We reject appellant’s contention that this was a close case.
The jurors were properly instructed that they alone had to decide the facts based only on the trial evidence. The jurors were told to follow the law as given to them by the court, and to disregard any comments from the attorneys that were in conflict with the court’s instructions. The jurors were directed to base their decisions solely on the evidence presented, their evaluation of that evidence, their common sense and experience, and the court’s instructions. The jurors were told that appellant was presumed to be innocent, and the prosecution was required to prove his guilt beyond a reasonable doubt. We presume the jury followed these instructions, and nothing reasonably rebuts that presumption. (People v. Boyette (2002) 29 Cal.4th 381, 436.)
Based on the totality of this record, we can declare beyond a reasonable doubt that the prosecutor’s disputed statements did not contribute to the verdicts. (Chapman, supra, 386 U.S. at p. 24.) Likewise, it is not reasonably probable appellant would have obtained a more favorable result in the absence of these disputed statements. (Watson, supra, 46 Cal.2d at p. 836.) Accordingly, even if one or both statements amounted to misconduct, prejudice is not present under either standard, and this claim fails.
DISPOSITION
The judgment is affirmed.
LEVY, J, Acting P. J.
WE CONCUR:
DETJEN, J.
SANDHU, J.