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C.A. Says No Reversible Error Due to Prosecutor Saying in Closing That Facts ‘Broke His Heart’
Opinion Says Attorney’s Citation to His Own Emotions, Telling Jury to ‘Do Justice’ Did Not Undermine Validity of Defendant’s Attempted Murder Conviction
By a MetNews Staff Writer
A prosecutor’s closing argument, in which he said that the circumstances of the case “broke my heart,” asked the jury to “do justice,” and likened the crime to a “Hollywood slasher movie,” did not mandate reversal of the defendant’s attempted murder conviction relating to a domestic violence incident in which the accused stabbed his then-girlfriend with a broken bottle, Div. Five of this district’s Court of Appeal has held.
In an unpublished opinion, filed Friday and authored by Acting Presiding Justice Lamar Baker, the court pointed out that the defendant failed to object to the prosecutor’s remarks during the closing argument and found that he could not now “attempt to avoid the consequences of the forfeiture by arguing ineffective assistance of counsel” because his trial attorney “could have appropriately believed any objection on misconduct grounds would have been meritless.”
Challenging his conviction was Matthew Fernandez, who was charged with a single count of premeditated attempted murder after he stabbed his romantic partner, identified in the opinion only as “W.M.,” in the face and neck with broken glass in July 2021, resulting in 19 wounds and requiring restorative surgery. The assault occurred at a Los Angeles homeless shelter where Fernandez had been living.
Closing Argument
The prosecutor assigned to the case, identified in superior court records as Los Angeles County Deputy District Attorney Alexander Bott, remarked during closing argument:
“[I]t broke my heart to hear she said that she went back with him….Look what happened when she went back with him. She was so close to being killed by him. It really was just going to be a matter of time.”
In describing the crime scene, he said that “it honestly reminds me of something from a Hollywood slasher movie” and, during rebuttal, repeatedly asked the jury to “[d]o justice for [W.M.].”
After a jury found Fernandez guilty in October 2023, Los Angeles Superior Court Judge James R. Dabney sentenced him to 25 years to life in prison based on the attempted murder charge and certain prior convictions on Jan. 17, 2024.
On appeal, Fernandez claims that the prosecutor attempted to garner sympathy for the victim by referring to his own emotional reaction to the evidence and asserted that the attorney’s plea that the jury “do justice” was tantamount to telling the panel to “do its job” by convicting the defendant.
Friday’s opinion, joined in by Justices Dorothy C. Kim and Carl H. Moor, affirms the judgment of conviction.
Assertion of Pervasive Misconduct
Baker noted:
“In sweeping terms, defendant accuses the prosecution of engaging in ‘pervasive’ misconduct—asserting that the prosecution’s closing argument ‘was riddled with multiple instances of prosecutorial misconduct in the form of invoking the passions and prejudices of the jury, from the beginning to the end.’ ”
Pointing out that the failure to raise a meritless objection is not ineffective assistance of counsel, he addressed each of the allegedly improper statements.
The jurist acknowledged that the 2007 California Supreme Court decision in People v. Mendoza, in which the court held that a prosecutor engaged in misconduct by saying that the evidence “choked me up” despite being “an old war horse” who had “been through a lot of these.” Distinguishing the case, Baker opined:
“The prosecution would have done better to avoid the remark because it is irrelevant—the prosecution’s reaction to the evidence doesn’t matter. But defense counsel could reasonably determine it was not reversible misconduct because the expression of heartbreak was not framed as being informed by professional experience or other evidence outside the record. That distinguishes this case from…Mendoza.”
‘Do Justice’ Comment
As to the “[d]o justice” appeal, Baker said:
“The prosecution’s exhortation here did not tie the jury’s job to returning a conviction—only to ‘justice.’ The difference is meaningful because the prosecution here did not intrude on the jury’s prerogative to determine what justice requires. Moreover, our Supreme Court has held remarks comparable to those defendant complains of are not reversible misconduct.”
Saying that the “Hollywood slasher” comparison was “a fair comment” that “in no way provokes juror sympathy in a way that the evidence presented at trial alone would not” and rejecting other arguments, the jurist asserted that “defendant’s cumulative error argument fails.”
The case is People v. Fernandez, B336838.
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