People v. Duarte-Lara
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Duarte-Lara was convicted of the felony offense of sexual penetration with a foreign object of a minor 14 years or older accomplished by force, violence, duress, menace, or fear of bodily injury. (Pen. Code 289(a)(1)(c)1.) He was sentenced to the lower term of six years' imprisonment.
The court of appeal affirmed and rejected an argument that the court assessed fines and assessments without determining his ability to pay. There was no substantial evidence of equivocal conduct on the part of the victim and no substantial evidence from which the jury could find that he reasonably and in good faith, albeit mistakenly, believed the victim had consented to sexual penetration with a foreign object. In context, the prosecutor’s closing argument is more akin to drawing inferences from the evidence than arguing facts not in evidence. Given the court’s admonition and instructions as to how the jury was to consider the prosecutor’s arguments, it is not reasonably likely the jurors understood or applied any of the complained-of remarks referring to rape in an improper or erroneous manner. Objections to the prosecutor’s closing remarks were either forfeited for review or the remarks were fair comment on the evidence and reasonable inferences to be drawn therefrom.
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