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People v. Moranchel5/21/2003
a would be killed was misconduct because defendant's knife "was believed to have fallen out of his pocket," and " othing in the facts of this case suggested had any intent to murder his victim at any point."
A prosecutor is given "`"`wide latitude'"'" during argument so long as it amounts to "`"`fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]'"'" (People v. Hill (1998) 17 Cal.4th 800, 819.) Because the sexual assault was thwarted, no evidence directly revealed whether defendant intended to use the knife during the attack. Rather, the evidence gave rise to conflicting inferences and deductions, including that the knife fell from defendant's clothing during his struggle with the citizen witnesses who effectively prevented him from retrieving it and using it on the victim. The prosecutor's advancement of the inference most favorable to him, as opposed to one more favorable to defendant, was not misconduct.
Defendant correctly contends that the present record did not contain any evidence regarding the "natural tendency of the rapist" to silence the witness in "all crimes of this type." However, "`"`counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' [Citation.]"'" (People v. Hill, supra, 17 Cal.4th at p. 819.) In this case, the prosecutor appears to have drawn his assertion from the widely known "experience" and "history" of cases such as the Klass and Onion Field murders. There was no misconduct.
II. Lesser Included Offenses
Background
Defense counsel argued during his summation that the jury should reject the charged crime of kidnapping for rape in favor of the lesser- included offenses of attempted rape, attempted kidnapping, and false imprisonment.
The prosecutor responded to this argument as follows: "This event was very nearly and was a young woman's or parent's worst nightmare. I believe the kidnapping for purpose of rape has been proved. Those other offenses are totally inadequate to address this defendant's conduct. Those other crimes involve much more, can involve much more innocent situations."
After the jury retired to deliberate, defense counsel requested that the jury be given curative instructions regarding portions of the prosecutor's closing summation. Defense counsel claimed the prosecutor "very shrewdly argued penalty and punishment" by suggesting that conviction of a lesser-included offense would reduce defendant's "level of culpability in the eyes of the law." Defense counsel also claimed it was "improper for a prosecutor to suggest a personal opinion to a jury and to suggest they offend him" if their verdict conflicts with that opinion.
The prosecutor responded that his argument "was that the lesser included offenses are not adequate to address his conduct. I don't think that's an argument meant on penalty. . . . The only time that it's error to argue the my personal belief in the defendant's guilt or innocence is when it implies that I have some knowledge that was not imparted to the jury . . . ."
The trial court denied the request for a curative instruction. It declined to find that the prosecutor's "remarks taken as a whole were a disguised argument for punishment or penalty although I understand counsel's argument in the way he construed the Prosecutor's closing remarks."
Analysis
Defendant reiterates his argument that the prosecutor improperly "argued penalty and punishment." He claims the prosecutor argued implicitly that the lesser-included offenses
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