Supreme Court of California Justia
Citation 42 Cal. 4th 960, 175 P.3d 4, 71 Cal. Rptr. 3d 253

People v. Lopez


Filed 1/28/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S143615
v.
Ct.App. 2/1 B182877
FERNANDO LOPEZ,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA271983

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
1



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
2

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
3

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; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a
4

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, italics added; see also People v. Hoyos (2007)
41 Cal.4th 872, 923; People v. Ledesma (2006) 39 Cal.4th 641, 726.)
“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.) 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.)
“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
5

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.)
We turn now to the three types of prosecutorial misconduct at issue here.
A. Guilt by Association
In her closing statement, the prosecutor argued to the jury: “[H]ow do we
assess [defendant’s] credibility? . . . [I]t is not enough to bolster his credibility
that the defendant is a priest in the Catholic Church. And I imagine [defense
counsel] will make much of that fact, the fact that he is a priest. And he will want
you, as the defendant did, . . . to think about the fact that priests do good works
and they are motivated by good intentions. But we know that priests are human
just like any other person. They commit sins as the defendant said, and they
commit crimes, and they commit horrendous crimes.” (Italics added.)
That comment, according to the Court of Appeal, was improper. Noting
“the almost daily news accounts of the scandal in the Catholic Church over
pedophile priests,” the Court of Appeal reasoned that “the jury was certain to think
the prosecutor was referring to this scandal and suggesting that defendant played a
part in it.” To argue “guilt by association,” the court stated, “constitutes
misconduct.”1 The latter statement correctly reflects the law. (See generally

1
Defendant claims that the prosecutor’s comment was also improper for a
reason different from the Court of Appeal’s “guilt by association” theory: the
prosecutor’s statement that priests “commit horrendous crimes” was misconduct,
defendant asserts, because the record contains no evidence of horrendous crimes
by priests. The prosecutor’s comment, however, simply expressed the idea that
because priests are human, they, like others, are capable of committing horrendous
crimes. There was no impropriety in the comment.
6



People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072; People v. Galloway
(1979) 100 Cal.App.3d 551, 563; People v. Chambers (1964) 231 Cal.App.2d 23,
28.) But the prosecutor here did not argue “guilt by association” by linking
defendant to highly publicized acts of sexual misconduct by Catholic priests.
The prosecutor pointed to testimony by prosecution witnesses that
defendant ordinarily dressed casually, wearing short-sleeved shirts, jeans, and
sandals. But at trial defendant wore his clerical collar, and defense counsel
mentioned in his opening statement that defendant was “loved in the church.” The
defense presented testimony that defendant was known as Father Fernando, that he
“became a priest to help people,” and that he was a “pretty popular priest” who
was still a clergyman notwithstanding the criminal charges against him. By
reminding the jury of defendant’s profession as a priest, the prosecutor argued, the
defense was conveying to the jury the subtle message that because defendant was
a priest he must be telling the truth when he denied the accusations of sexual
molestation, because, in the prosecutor’s words, “priests do good works and they
are motivated by good intentions.” The prosecutor urged the jury to judge
defendant by the evidence, not by his occupation as a priest. She explained: “[I]t
is not enough [for defendant] to just say he is a priest so you should believe him.
That’s a violation of what the jury instructions tell you.” That argument simply
asked the jury not to give defendant favorable treatment just because he happened
to be a priest. This was proper. (See generally People v. Gionis (1995) 9 Cal.4th
1196, 1219 [prosecutor’s argument that jury should not give the defendant
favorable treatment merely because he could afford a nationally known attorney
was proper].)
There was another argument by the prosecutor that the Court of Appeal
characterized as an improper theory of guilt by association. The prosecutor argued
to the jury: “The defendant also revealed in direct examination with me [sic] a
7

general philosophy, for lack of a better word, that rules do not apply for him. He
made it very clear that he was given a lot of training, that [his pastor] explained
to you as well, about how to behave with minors here in Los Angeles. And we all
know why those rules are in place. This is not a surprise to any of us that the
Church has these rules. [¶] What did the defendant tell you about those rules?
Well, he said they are in place for a good reason, but since I had a good reason to
violate them that was okay. What does that mean? That means that, in general,
the defendant thinks rules don’t apply to him.” (Italics added.) Unlike the Court
of Appeal, we do not view this comment as asking the jury to find defendant
guilty by association, by linking him to pedophile priests.
Both defendant and his superior, Father Jarlath Cunnane, testified at trial
that the Archdiocese of Los Angeles had a policy prohibiting priests from having
minors in their living quarters and discouraging priests from having minors alone
with them in their cars. It is reasonable to infer that the purpose of this policy was
to avoid accusations of sexual misconduct with minors by priests. Although the
prosecutor made a passing reference to this policy in her argument to the jury, she
did not tell the jury that it should find defendant guilty by association, by linking
him to pedophilic priests. Her mention of the archdiocese’s policy was simply to
point out to the jury that defendant knew of the rules and deliberately broke them.
Because the prosecutor’s arguments discussed above were not improper,
there was no reason for a defense objection. Therefore, the failure to object did
not result in a violation of defendant’s constitutional right to the effective
assistance of counsel. (People v. Dickey (2005) 35 Cal.4th 884, 915.)
B. Asking Jurors to Stand in the Victims’ Shoes
In her closing argument to the jury, the prosecutor said she expected
defense counsel to argue that the victims lacked credibility because they could not
8

remember certain details about the rooms in which the sexual misconduct
occurred. In anticipation of that argument by the defense, the prosecutor told the
jury: “[P]ut yourself in that situation. . . . I will pick someone at random. Juror
Number 12. I’m going to take Juror 12 back in the jury deliberation room. I’m
going to take a flashlight and beat him up bad. I won’t really. And it’s going to
last about 10 minutes. And then you are going to leave and you are never going to
go in that room again. And four years from now I’m going to put you on that
witness stand and I’m going to say ‘What magazines were on that side table?
What color was the rug?’ Are you going to remember the flashlight? Are you
going to remember me? Are you going to remember maybe what you are wearing
and how many stitches you got in your head? Probably. Are you going to
remember the color of the carpet? No. Does that mean that you are not going to
accurately remember and testify about me beating you up? No.”
Later, the prosecutor made a similar comment in discussing victim Gerardo
V.’s testimony that one of the acts of molestation occurred in defendant’s
bedroom, that the room had a piano, but that he could not remember other items in
the room. The prosecutor argued: “This means that the defendant is lying when
he says that Gerardo was never [in defendant’s bedroom]. Think about it this way:
If I picked one of you out at random. Juror Number Five. And I said, ‘Tell me
what’s in my bedroom.’ You could probably guess some stuff and get it right.
You’d say bed. You’d say dresser. You’d say alarm clock. And from those
answers no one would know whether you have been in my bedroom or not . . .
because I have all those things in my bedroom. Everybody has those things in
their bedroom. [¶] What if you said something really weird? I have this weird
clock that’s made from the head of a baby doll and then on top of it is this dial that
comes up. It’s very weird. . . . If you, Juror Number Five, said ‘There’s this weird
clock with a baby head and dial that freaked me’ people would know . . . that is
9

something specific and unusual that [lets] us understand that he’s actually been in
my bedroom. [¶] Well, a piano is a weird thing to have in your room, right? And
what did Gerardo describe when [defense counsel] was pushing him about what is
in that room? He didn’t say bed or chest of drawers. He said piano and there’s a
piano in that room. So what does that mean? Just like Juror Number Five, he was
in that room, because you are not going to pick piano off your top 10 list of things
. . . that is in somebody’s room.”
In holding that prosecutorial argument to be improper, the Court of Appeal
observed: “What the prosecutor was doing was asking the jurors to stand in the
shoes of the victim witnesses. This is misconduct. As stated in People
v. Stansbury (1993) 4 Cal.4th 1017, 1057 . . . , ‘an appeal to the jury to view the
crime through the eyes of the victim is misconduct at the guilt phase of trial . . .
.’ ”
It is true that ordinarily “a prosecutor may not invite the jury to view the
case through the victim’s eyes, because to do so appeals to the jury’s sympathy for
the victim.” (People v. Leonard (2007) 40 Cal.4th 1370, 1406; see also People
v. Stansbury, supra, 4 Cal.4th at p. 1057; People v. Fields (1983) 35 Cal.3d 329,
362.) In Leonard, which involved the cold-blooded killings of six persons, the
prosecutor told the jurors: “ ‘Imagine in that last millisecond before the lights go
out, when you hear the report of the gun, when you feel the wetness . . . the small
vapor of blood that is blown out the back or the side of their head and they fall to
the floor, and in their last moment of consciousness, they think, I misjudged this
man.’ ” (People v. Leonard, supra, 40 Cal.4th at p. 1407, fn. 7.)
Here, however, the prosecutor did not ask the jurors to view the crimes
through the eyes of the victims. Rather, she gave two hypotheticals in which the
victims did not at all figure. The first had her beat a juror with a flashlight in the
jury deliberation room. She then made her point that four years later the juror,
10

having never again visited the jury room, might not remember such details as the
magazines on the table or the color of the rug but might vividly remember that the
assault took place in the jury deliberation room. In the second hypothetical, the
prosecutor asked a juror to imagine going into the prosecutor’s bedroom and
remembering an unusual piece in the room, namely, a “weird clock . . . made from
the head of a baby doll.” The juror’s recollection of that one highly distinctive
item in the room, the prosecutor argued, would tend to show his actual presence in
the room containing that unusual item. Similarly, the prosecutor maintained, in
this case victim Gerardo’s testimony that he had been in defendant’s bedroom was
credible because he remembered a highly unusual item he saw there, namely, a
piano. In neither scenario did the prosecutor ask the jurors to stand in the shoes of
the victims, so as to evoke jury sympathy for the victims. We perceive no
impropriety in the prosecutor’s argument. Consequently, the Court of Appeal
erred when it held that defense counsel’s failure to object to that argument violated
defendant’s constitutional right to competent counsel. (See People v. Dickey,
supra, 35 Cal.4th at p. 915.)
C. Expression of Belief in Defendant’s Guilt
In his closing argument to the jury, defense counsel accused the prosecutor
of making personal attacks on him as a tactical maneuver to deflect the jury’s
attention away from the weaknesses in the prosecution’s case. A prosecutor who
does not “have the facts,” he said, will “attack the defense lawyer for being such a
mean person and being not so bright, because I asked dumb questions.”
In her rebuttal, the prosecutor responded: “One thing that I heard quite a
bit was that I made a lot of nasty comments about [defense counsel] yesterday.
That I said he was mean and I said he was stupid. And in fact I didn’t say any of
those things and I don’t think those things are true. [¶] In fact I think [defense
11

counsel’s] style of thorough cross-examination was very helpful to my case
because . . . [i]t showed over and over again the witness’s [sic] demeanor, and
their consistency from beginning to end. They weren’t going to be confused by
him. . . . They were going to listen to both of us and politely as best they could
and as articulately as they are capable answer the questions. [¶] I don’t think
[counsel] is mean or stupid. But I think his client is guilty.” (Italics added.)
The Court of Appeal viewed the latter comment as misconduct, explaining
that it reflected a personal belief in defendant’s guilt, under circumstances that
would cause the jury to conclude that the belief was based on evidence not
presented at trial. We disagree.
“A prosecutor may not express a personal opinion or belief in the guilt of
the accused when there is a substantial danger that the jury will view the
comments as based on information other than evidence adduced at trial.” (People
v. Mincey (1992) 2 Cal.4th 408, 447; see also People v. Huggins (2006) 38 Cal.4th
175, 207; People v. Frye (1998) 18 Cal.4th 894, 975-976.) The danger that the
jury will view the prosecutor’s expressed belief in the defendant’s guilt as being
based on outside sources “is acute when the prosecutor offers his opinion and does
not explicitly state that it is based solely on inferences from the evidence at trial.”
(People v. Bain (1971) 5 Cal.3d 839, 848.) Nevertheless, not all such comments
are improper. Rather, “[t]he prosecutor’s comments must . . . be evaluated in the
context in which they were made, to ascertain if there was a substantial risk that
the jury would consider the remarks to be based on information extraneous to the
evidence presented at trial.” (People v. Mincey, supra, 2 Cal.4th at pp. 447-448;
see also People v. Cummings (1993) 4 Cal.4th 1233, 1303, fn. 48; People v. Green
(1980) 27 Cal.3d 1, 35-36.)
Here, the prosecutor’s comment did not imply that she based her belief in
defendant’s guilt on evidence not presented at trial. To the contrary: Because her
12

statement that she believed defendant was guilty immediately followed her
comment that, in her view, defense counsel’s cross-examination of the victims
demonstrated that they were credible, a reasonable juror would most likely infer
that the prosecutor based her belief in defendant’s guilt on the credibility of the
victims’ testimony at trial.
Even if we were to assume, for argument’s sake, that the prosecutor’s
comment was improper, defendant would still not be entitled to relief. As
mentioned earlier, defense counsel did not object at trial to the comment, thus
forfeiting on appeal a claim of prosecutorial misconduct. Reversal of defendant’s
conviction would be warranted only if counsel’s failure to object violated
defendant’s constitutional right to the effective assistance of counsel. But as we
have pointed out, except in those rare instances where there is no conceivable
tactical purpose for counsel’s actions, claims of ineffective assistance of counsel
should be raised on habeas corpus, not on direct appeal. (People v. Mendoza
Tello, supra, 15 Cal.4th at pp. 266-267.) This is particularly true where, as here,
the alleged incompetence stems from counsel’s failure to object. “[D]eciding
whether to object is inherently tactical, and the failure to object will rarely
establish ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502;
see also People v. Dickey, supra, 35 Cal.4th at p. 914; People v. Boyette (2002) 29
Cal.4th 381, 433.) Here, the record shows that defense counsel had good tactical
reasons for not objecting to the prosecutor’s argument or asking the trial court to
tell the jury to disregard it.
In his closing statement to the jury, defense counsel expressed his personal
belief that defendant was innocent. Counsel said: “I believe Father Lopez. Father
Lopez has always said to me ‘Mr. Moore, I didn’t do this.’ ” Thus, one reason for
defense counsel’s failure to object when the prosecutor said that she believed in
defendant’s guilt may have been defense counsel’s concern that the jury would
13

find him a hypocrite for complaining about the prosecutor’s argument (“But I
think his client is guilty”) when defense counsel himself had used a similar tactic,
by expressing a belief in defendant’s assertion of innocence. And defense counsel
may have been concerned that asking the trial court to admonish the jury not to
consider the prosecutor’s expressed belief in defendant’s guilt could lead the trial
court to tell the jury to disregard the personal beliefs expressed by both the
prosecutor and defense counsel. Such an admonition, defense counsel may have
concluded, could have done the defense more harm than good by having the jury
disregard defense counsel’s expressed belief in defendant’s innocence.2

2
In his answer brief, defendant asserts that two other comments in the
prosecutor’s closing argument were misconduct. First, in discussing the jury
instruction pertaining to the charge that defendant violated subdivision (a) of Penal
Code section 647.6, which said that the prosecution had to prove that defendant
was “motivated by an unnatural or abnormal sexual interest” in the victim, the
prosecutor told the jury: “[W]e can probably have a debate out in the hall about
whether any sexual interest in a child is anything other than abnormal or
unnatural. But that’s what the law requires.” Second, the prosecutor argued that
the victims in this case were particularly vulnerable to defendant’s criminal acts
because they were Catholic and had been brought up to trust priests, and that the
prosecutor would not be similarly vulnerable because she was Protestant. Because
these comments are not discussed in the Court of Appeal’s opinion and are not
mentioned in the Attorney General’s petition for review, they are beyond the
scope of our review.

14



DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded for further proceedings consistent with this opinion.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

15



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lopez
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 138 Cal.App.4th 674
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143615
Date Filed: January 28, 2008
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Ruth Ann Kwan

__________________________________________________________________________________

Attorneys for Appellant:

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

__________________________________________________________________________________

Attorneys for Respondent:

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, for Plaintiff and
Respondent.

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.
1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark D. Lenenberg
P.O. Box 940327
Simi Valley, CA 93094-0327
(805) 526-5988

Michael A. Katz
Deputy Attorney General
300 South Spring street, Suite 1702
Los Angeles, CA 90013
(213) 620-6059

Roberta T. Schwartz
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5911

2


Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Did the prosecutor commit misconduct during closing argument?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 01/28/200842 Cal. 4th 960, 175 P.3d 4, 71 Cal. Rptr. 3d 253S143615Review - Criminal Appealclosed; remittitur issued

PEOPLE v. LOPEZ (S143615)


Parties
1The People (Plaintiff and Respondent)
Represented by Michael A. Katz
Office of the Attorney General/Writs Appeals Trials
300 S. Spring Street, Suite 1702
Los Angeles, CA

2Lopez, Fernando (Defendant and Appellant)
Represented by Mark D. Lenenberg
Attorney at Law
P.O. Box 940327
Simi Valley, CA

3Lopez, Fernando (Defendant and Appellant)
Represented by California Appellate Project - La
520 S. Grand Avenue, Suite 400
520 S. Grand Avenue, Suite 400
Los Angeles, CA

4Los Angeles County District Attorney (Amicus curiae)
Represented by Brentford J. Ferreira
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

5Los Angeles County District Attorney (Amicus curiae)
Represented by Lael Ronna Rubin
Attorney at Law
210 W. Temple Street, 18th Floor
Los Angeles, CA

6Los Angeles County District Attorney (Amicus curiae)
Represented by Roberta T. Schwartz
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA


Opinion Authors
OpinionJustice Joyce L. Kennard

Disposition
Jan 28 2008Opinion: Reversed

Dockets
May 23 2006Petition for review filed
  Respondent People Deputy Attorney General Michael A. Katz
May 24 2006Received Court of Appeal record
 
May 30 2006Record requested
  remainder of case record
May 30 2006Received Court of Appeal record
 
Jul 19 2006Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 7 2006Counsel appointment order filed
  Mark Lenenberg is appointed to represent appellant. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed.
Aug 10 2006Opening brief on the merits filed
  Respondent People Deputy Attorney General Michael A. Katz
Sep 8 2006Request for extension of time filed
  for appellant to file the answer brief on the merits, to 10-11-06.
Sep 12 2006Extension of time granted
  to 10-11-06 for appellant to file the answer brief on the merits.
Oct 10 2006Request for extension of time filed
  for appellant to file the answer brief on the merits, to Nov. 10, 2006.
Oct 13 2006Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 10, 2006. **11/10 is a holiday. Due date should be 11/13.
Nov 13 2006Answer brief on the merits filed
  Fernando Lopez, defendant and appellant Mark Lenenberg, counsel
Nov 29 2006Compensation awarded counsel
  Atty Lenenberg
Dec 1 2006Reply brief filed (case fully briefed)
  Fernando Lopez, counsel Michael A. Katz, Deputy Attorney General
Dec 29 2006Received application to file Amicus Curiae Brief
  & brief of Los Angeles County District Attorney, amicus curiae in support of respondent. (under same cover) Lael Rubin, Brentford J. Ferreira and Roberta Schwartz, Deputy District Attorneys'
Dec 29 2006Request for judicial notice filed (granted case)
  by The Los Angeles County District Attorney, respondent Lael Rubin, Brentford Jeffeira, Robert Schwartz
Jan 9 2007Permission to file amicus curiae brief granted
  The application of Los Angeles County District Attorney for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Jan 9 2007Amicus curiae brief filed
  Los Angeles County District Attorney in support of respondent. Roberta Schwartz, Dep. D.A.
Jan 29 2007Response to amicus curiae brief filed
  Fernando Lopez, defendant and appellant Mark Lenenberg, counsel Response to A/C brief of L.A. Dist. Attorney
Oct 2 2007Case ordered on calendar
  to be argued on Tuesday, November 6, 2007, at 9:00 a.m., in Sacramento.
Oct 10 2007Application filed to:
  Divide oral argument time Respondent People Deputy Attorney General Michael A. Katz
Oct 12 2007Order filed
  The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae Los Angeles County District Attorney ten minutes of respondent's 30-minute allotted time for oral argument is granted.
Oct 22 2007Request for Extended Media coverage Filed
  The California Channel
Oct 24 2007Request for Extended Media coverage Granted
  The request for extended media coverage, filed by The California Channel on October 22, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 31 2007Request for judicial notice denied
  The request for judicial notice filed on December 29, 2006, is denied.
Nov 6 2007Stipulation filed
  Counsel for the parties in the above-entitled action, having been informed by the Clerk of the Court that Justice Corrigan will not be present at oral argument because of illness, but will review the tape recording of the oral argument, hereby stipulate that they have no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Nov 6 2007Cause argued and submitted
 
Jan 25 2008Notice of forthcoming opinion posted
 
Jan 28 2008Opinion filed: Judgment reversed
  and remanded to the court of appeal for further proceedings. Majority opinion by Kennard, J. -------------------joined by George, C.J., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ
Feb 29 2008Returned record
  2 doghouses shipped to Pat Quinn at L.A. office on Tuesday, 3/11/08 via UPS Ground.
Feb 29 2008Remittitur issued (criminal case)
 
Mar 11 2008Note:
  Case record sent to L.A. Supreme Court office
Mar 27 2008Compensation awarded counsel
  Atty Lenenberg

Briefs
Aug 10 2006Opening brief on the merits filed
 
Nov 13 2006Answer brief on the merits filed
 
Dec 1 2006Reply brief filed (case fully briefed)
 
Jan 9 2007Amicus curiae brief filed
 
Jan 29 2007Response to amicus curiae brief filed
 
Brief Downloads
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People v Lopez - Respondent's Opening Brief on the Merits.aspx (535 bytes) - Respondent's Opening Brief on the Merits
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People v Lopez - Brief of Amicus Curiae Los Angeles District Attorney in support of Respondent.aspx (535 bytes) - Brief of Amicus Curiae Los Angeles District Attorney in support of Respondent
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People v Lopez - Petition for Review.aspx (535 bytes) - Petition for Review
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jul 5, 2011
Annotated by laura jacobsen

FACTS:

Defendant, a Catholic priest, was convicted by a jury of four counts of committing a lewd act on a fourteen- or fifteen-year old child who was at least ten years younger than defendant, sexual battery by restraint, and sexual battery. The trial court sentenced defendant to a total of six year eight months imprisonment.

At trial, the prosecutor engaged in three types of conduct in her closing and rebuttal arguments to the jury that the Court of Appeal concluded was misconduct: (1) The prosecutor asked the jury to view the crimes through the eyes of the victims; (2) she attempted to link defendant to other priests who had committed acts of molestation, arguing guilt by association; (3) she expressed that he personally believed that defendant was guilty. Defense counsel did not object to any of these statements.

PROCEDURAL POSTURE:

Jury convicted defendant of seven sex offenses involving three teenage youths. The Court of Appeal reversed the convictions after concluding that the prosecutor’s statements during closing and rebuttal arguments to the jury constituted misconduct, and that defense counsel’s failure to object to the misconduct constituted ineffective assistance of counsel.

ISSUE(S):

Whether the prosecutor’s statements during her closing and rebuttal arguments to the jury constituted prosecutorial misconduct warranting conviction. Whether defense counsel’s failure to object to prosecutor’s statements constituted ineffective assistance of counsel.

HOLDING:

The prosecutor’s comments during her closing and rebuttal arguments to the jury did not constitute misconduct and defense counsel’s assistance was not ineffective for not objecting. Reversed and remanded for further proceedings consistent with this opinon.

ANALYSIS:

A prosecutor commits misconduct when he or she uses deceptive or reprehensible methods to persuade the jury. Prosecutorial misconduct requires reversal under the federal Constitution when it results in such unfairness as to render the conviction a denial of due process. Under California law, a prosecutor can commit misconduct even when those actions do not render a trial fundamentally unfair.

However, a defendant cannot appeal a conviction on grounds of prosecutorial misconduct unless defense counsel objected to the action and also requested a limiting instruction for the jury. But where defense counsel did not object to the alleged prosecutorial misconduct, a defendant can argue on appeal that such inaction violated the defendant’s constitutional right to effective assistance of counsel. Such claims, however, are more appropriately litigated on habeas corpus, where an evidentiary hearing as to defense counsel’s reasons for not objecting can better be explored.

To establish a claim of ineffective assistance of counsel, defendant must demonstrate that: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s deficient performance resulted in prejudice, defined as a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

With regard to the prosecutor asking the jurors to stand in the victim’s shoes during her closing argument to the jury, the Court held the prosecutor did not commit misconduct because she was actually giving two hypotheticals that in no way involved the victims. Ordinarily a prosecutor may not invite the jury to view the case through the eyes of the victim because to do so impermissibly appeals to the jury’s sympathy for the victims. But the Court perceived no impropriety in her hypotheticals. Therefore the Court of Appeal erred when it held that defense counsel’s failure to object to her statements constituted ineffective assistance of counsel.

A prosecutor commits misconduct when she argues guilt by association. The Court of Appeal found that the prosecutor argued guilt by association in her closing arguments, including the statement that “we know that priests are human just like any other person. They commit sins as the defendant said, and they commit crimes, and they commit horrendous crimes.” The Court found, however, that the prosecutor did not argue guilt by association by linking defendant to the highly publicized sexual misconduct committed by Catholic priests in spite of the almost daily news accounts at the time of pedophile priests in the Catholic Church.

Moreover, the prosecutor did not commit misconduct when she asked the jury not to give defendant favorable treatment just because he was a priest. Because the prosecutor’s statements were not improper, there was no reason for defense counsel to object. Consequently, defense counsel’s failure to object did not violate defendant’s constitutional right to effective assistance of counsel.

Finally, the Court held that prosecutor’s statement that she believed the defendant was guilty did not constitute misconduct. It is generally true that a prosecutor may not express a personal belief in the guilt of the defendant. However, not all such comments are improper, and they must be evaluated in the context they were made in order to determine whether there was a substantial risk the jury would consider the comments to be based on evidence not presented at trial.

Here, the context demonstrates that a reasonable juror would infer that the prosecutor based her belief in defendant’s guilt on the victim witness’ credibility because her statement followed her comment that defense counsel’s cross-examination of the witnesses demonstrated their credibility. Furthermore, the record shows that defense counsel had good strategic reasons for not objecting this argument and therefore did not render ineffective assistance.

KEY RELATED CASES:
People v. Thornton, 41 Cal.4th 391 (2007)
People v. Ledesma, 39 Cal.4th 641 (2006)
People v. Leonard, 40 Cal.4th 1370 (2007)
People v. Mincey, 2 Cal.4th 408 (1992)

TAGS: prosecutorial misconduct, ineffective assistance of counsel

Annotation By: Laura Jacobsen