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People v. Moranchel5/21/2003
e was not proven, because "the movement did not substantially increase the risk of harm over and above that necessarily present in the crime itself." He reasoned that the movement of a "hundred thirty-four feet in broad daylight," in approximately three minutes, was a "heinously clumsy crime of opportunity" and not the sort that substantially increased the risk of harm.
The prosecutor responded to this argument as follows: "The Defendant asks you to find at that time movement of the victim did not substantially increase the danger to her or the risks that she was subjected to above and beyond the commission of the rape. Again, the risks[,] we are talking about risks not actuality[,] we are talking about things she was exposed to, potential risks she suffered. It's completely immaterial those risks may not have materialized. The risks can include mental as well as physical trauma. Again just to go over not only the most obvious one, the movement by a perpetrator of an individual is the subject of a crime. Anytime somebody is committing a crime on you and wants to take you somewhere that would in my mind, that would set off red lights and sirens and alarms. That if he can take you to commit the crime and take you to a place where he's completely in control of you and the situation and surroundings I believe your chances have just gone down substantially. It's the difference between the Polly Klas who was taken out of her bedroom and out into the yard and out into the defendant's vehicle, a trip from which she never returned. It's like the Onion Field case. The officers made a traffic stop on a vehicle and eventually one of them never returned. I believe in all crimes of this type the natural tendency of the rapist is to silence the witness upon completion of the crime." (Italics added.)
Defense counsel objected that it "is improper to suggest that she was going to be killed. It's misconduct. I object to it."
The prosecutor responded, "That's one of the risks. That's one of the risks. We are talking about the risks. That's proper argument. That's in the instructions."
The trial court ruled, "Ladies and Gentlemen, the attorney's statements are not evidence. They are only arguments. Objection overruled. You may proceed."
Analysis
The "`"applicable federal and state standards regarding prosecutorial misconduct are well established. `"A prosecutor's . . . intemperate 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.'"' [Citation.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves `"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
Defendant first contends the prosecutor's reference to the "reprehensible" Klass and Onion Field murder cases was an "obvious appeal to the jury's passion and prejudice." Defendant claims the prosecutor's argument that Norm
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