Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 07HF2006, M. Marc Kelly, Judge.
David L. Annicchiarico, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Miguel Preciado Barron appeals from his conviction on one count of sale of a controlled substance and one count of possession of a controlled substance for sale. (Health & Saf. Code, §§ 11351; 11352, subd. (a).) He contends: (1) he was denied effective assistance of counsel because his attorney failed to request a limiting instruction advising the jurors they could only consider evidence of his codefendant’s guilty plea for the purpose of assessing his codefendant’s credibility as a witness and not as substantive evidence of Barron’s guilt; (2) the jury was improperly instructed with Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 358 because the instruction was applied to his exculpatory oral statements; and (3) there was cumulative error. We reject his contentions and affirm the judgment.
FACTS
Prosecution Case
Costa Mesa Police Detective Matthew Selinske was involved in an ongoing investigation of drug sales activity by Paul Cannellini. In his career, Selinske had investigated and witnessed over 250 hand to hand drug sales. Selinske testified that about 90 percent of such transactions took place in cars and had very common traits including that the persons involved would sit inside the car, face to face, for a short period of time, and move their arms in a manner consistent with an exchange of something. For two weeks prior to this incident, Selinske observed Cannellini engage in eight to 12 possible drug transactions—each one taking place either in Cannellini’s car or the other person’s car in public parking lots.
On September 5, 2007, at about 3:00 p.m., Selinske and Costa Mesa Police Detective Andres Sepulveda, both in plain clothes and driving separate unmarked police cars, followed Cannellini driving his 1966 Mustang. Cannellini stopped at an ATM and withdrew cash, and then drove to an El Pollo Loco restaurant parking lot. The officers drove their cars into different entrances to avoid detection, losing sight of Cannellini for 10 to 30 seconds. When they regained sight of Cannellini, he was parked in the parking lot with Barron sitting in the front passenger seat of Cannellini’s car. Cannellini and Barron were facing each other, talking and moving their arms, in a manner consistent with an exchange taking place. They both got out of the car after one to two minutes and walked towards the trunk of Cannellini’s car. Barron had a wadded up paper towel in his hand. Cannellini opened the trunk, while Barron stood with his back to the trunk and appeared to be keeping a lookout. Cannellini began moving things around in his trunk for a few seconds then closed the trunk.
Selinske and Sepulveda approached the two men and arrested them. Barron had $600 cash in his pants pocket, $290 cash in his wallet, and a cellular telephone. Barron had no contraband on his person, nor was there any in his own car. Cannellini’s cellular telephone showed a call was made that day at 3:09 p.m. to “Miguel” at Barron’s cellular telephone number. The officers found two bags containing cocaine in Cannellini’s trunk—one bag contained 11 individual sale size bindles totaling 27.8 grams; the other contained a 27.6 gram cocaine rock worth between $600 and $800.
As they sat handcuffed on the curb, Barron said to Cannellini, “What did you do?” Sepulveda testified Barron did not seem concerned when he made this comment, but more agitated or bothered—like he was upset at having been implicated in the investigation of Cannellini.
Police did not search Barron’s home for indicia of drug dealing, nor did they dust the bags of cocaine for fingerprints. The two officers testified the transaction they witnessed was consistent with a resupply of drugs to a dealer. Sepulveda testified a drug supplier would not typically make such a transaction himself, but would use a trusted “runner” to make the sale. A runner would not be expected to possess the usual indicia of drug dealing such as pay owe sheets, scales, or packaging materials.
Cannellini testified for the prosecution after having pled guilty to charges stemming from the incident, including transportation and sale of cocaine, and being granted immunity from further prosecution. He testified he had arranged to meet Barron at the El Pollo Loco parking lot, and he paid Barron $600 for the bag of rock cocaine the officers found in his trunk. On cross examination, Cannellini testified he did not write the factual statement in his plea agreement and did not know who did. He understood it would violate his plea agreement to testify contrary to the factual statement in his plea agreement but nonetheless insisted his testimony was truthful.
Defense Case
Barron testified he had a side business of buying, fixing, and selling old cars. He and Cannellini were friends, had known each other for three years, and socialized. Barron conceded he had not known Cannellini’s last name until this incident. They had arranged to meet at the El Pollo Loco restaurant to eat and talk about old cars—a mutual interest they shared. When Cannellini arrived, Barron was inside the restaurant eating. Barron motioned for Cannellini to come in, but Cannellini motioned to Barron to come outside, indicating he was not hungry. Barron went to Cannellini’s car and got in, to discuss car repair work. They then got out because Barron wanted to look at the trunk and hood areas on Cannellini’s car. Barron conceded he did not offer this explanation to police at the time of his arrest.
During their arrest, Barron asked Cannellini, “What did you do?” out of surprise, because Barron had no idea what was going on. Barron testified the $600 found in his pants pocket was from having sold a car to his brother four days earlier. Barron’s brother testified that on September 1, he paid Barron $1050 cash for a car.
A jury convicted Barron on one count of sale of a controlled substance and one count of possession of a controlled substance for sale. He was placed on three years’ formal probation.
DISCUSSION
1. Ineffective Assistance of Counsel: Failure to Request Instruction Limiting Use of Evidence of Cannellini’s Guilty Plea
Cannellini testified for the prosecution. Evidence of his guilty plea was introduced first by the prosecution on direct examination, and then explored in detail by defense counsel on cross examination. While essentially conceding evidence of the guilty plea was relevant to Cannellini’s credibility as a witness to explain his motive for testifying, Barron argues he was deprived of effective assistance of counsel because his trial counsel did not request a limiting instruction to ensure the jurors did not consider the guilty plea as substantive evidence of his guilt. Although such an instruction would have been appropriate, we conclude Barron suffered no prejudice from its absence.
Barron’s ineffective assistance of counsel presupposes the trial court had no sua sponte duty to give a limiting instruction. (See People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3 [absent request by defendant, trial court has no sua sponte duty to give limiting instruction].)
To prevail upon a claim of ineffective assistance of counsel, Barron “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....’ [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 333; see also Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216 218.)
In responding to Barron’s argument, the Attorney General largely contends counsel had an obvious tactical reason for not objecting to admission of evidence of Cannellini’s guilty plea. The guilty plea was a relevant means for the defense to attack Cannellini’s credibility. Cannellini admitted he was bound by the plea agreement to testify consistently with his guilty plea. But Barron’s argument is not that the guilty plea evidence was inadmissible but that his trial counsel failed to request an instruction advising the jury of its limited use. We address his contention as so framed.
To avoid a conviction based on mere association with others, it is well established “‘evidence about the conviction of a [codefendant] is not admissible as substantive proof of the guilt of a defendant.’ [Citation.]” (UnitedStates v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240; People v. Cummings (1993) 4 Cal.4th 1233, 1322 [probative value of codefendant’s guilty plea was clearly outweighed by the prejudicial impact of the plea]; People v. Leonard (1983) 34 Cal.3d 183, 188 189 [evidence person involved in charged offense had pleaded guilty was inadmissible against defendant because it invited an improper inference of guilt by association].)
In UnitedStates v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1007, the court explained that when evidence of a testifying codefendant’s guilty plea is admitted, the jury must be given an instruction addressing the permissible use of the evidence—the evidence is relevant only in assessing the witness’s credibility—and “exclude[ing] from the jury’s mind the possibility that it may serve as evidence of guilt.” The Attorney General’s argument the pattern instruction CALCRIM No. 316 was sufficient, is not well taken. The pattern instruction told the jury that if it found a witness had suffered a felony conviction, that fact could be considered only in assessing the witness’s credibility. Although the instruction touches on the general principles at play, it does not address the situation of a co arrestee’s guilty plea to the same charges for which defendant is on trial, and does not address the concern of a finding of guilt by association.
Here, the prosecution elicited testimony from Cannellini that he had pled guilty to transportation and sale of cocaine as a result of this incident. Cannellini then went on to testify about what had transpired in the car with Barron, i.e., that Cannellini paid Barron $600 for the rock of cocaine later found in his trunk. Trial counsel did not request the jury be given an instruction limiting the use of the evidence of Cannellini’s guilty plea. But even assuming there was no reasonable tactical purpose for not requesting a limiting instruction, we can discern no prejudice.
We cannot say is it reasonably probable that had defense counsel requested a limiting instruction, and one been given, a more favorable result would have occurred. (Bolin, supra, 18 Cal.4th at p. 333; see also Leonard, supra, 34 Cal.3d at p.189 [applying the Watson test to find prejudicial error in admitting evidence of a codefendant’s guilty plea].) This is not a case like Leonard, supra, 34 Cal.3d at p.189. There, defendant and codefendant were detained together shortly after an armed robbery and identified by one of the victims. The trial turned on the credibility of the witness’s identification of the robbers. The codefendant did not testify, but the trial court informed the jury he had pleaded guilty to the offenses. The Supreme Court held admission of the evidence was prejudicial because there was “no evidence directly relating [codefendant’s] participation in the robbery to the issue of defendant’s guilt.” (Id. at p. 188.) “That some time after the robbery defendant was stopped and arrested with another man who then pleaded guilty to the commission of a robbery earlier in the evening invites an inference of guilt by association.” (Ibid.)
People v. Watson (1956) 46 Cal.2d 818, 836.
Unlike Leonard, here there was direct evidence of Barron’s guilt—this is not a case in which the fact of a codefendant’s guilty plea supplied a missing link. For example, Halbert, supra, 640 F.2d 1000, the case upon which Barron relies, was a mail fraud case in which two codefendants testified against defendant and told “the jury that they pleaded guilty to the conspiracy for which [defendant] stood trial.” (Id. at p. 1004.) Thus, although not specifically discussed in the case, inherent in the court’s finding of prejudice was an obvious concern the codefendants’ guilty pleas could have been used improperly as evidence of a substantive element of the conspiracy—e.g., the agreement to commit a crime.
Here, the prosecutor agreed Cannellini’s substantive testimony filled in some “little pieces” by providing direct evidence of what the police officers suspected. They had witnessed Barron and Cannellini engage in physical conduct consistent with a drug transaction but could not see what actually passed between the men. Cannellini was then immediately found to be in possession of a rock of cocaine worth between $600 and $800. Barron had $600 cash in his pocket; his other cash ($290) was in his wallet (where one would reasonably expect a large sum of cash to be placed). Cannellini testified he had paid Barron $600 for the rock of cocaine.
As acknowledged in Halbert, supra, 640 F.2d 1000, it was perfectly permissible for the prosecution to elicit testimony from Cannellini concerning Barron’s substantive guilt (id. at p. 1005); the jury was appropriately instructed with CALCRIM No. 335 stating an accomplice’s testimony is not alone sufficient to convict and should be viewed with caution.
But there is nothing suggesting Cannellini’s guilty plea (as opposed to his substantive testimony) filled in any gaps in the prosecution’s case. The record does not suggest it played a role in terms of proving the charges. The guilty plea was argued only as to how it affected Cannellini’s credibility as a witness. Defense counsel questioned Cannellini extensively about his guilty plea—that he had to testify consistently with the factual basis set forth in the plea, but he did not know who wrote the factual basis. At no time did the prosecutor argue Barron was guilty because Cannellini was guilty.
Barron suggests the prosecutor unfairly highlighted the importance of Cannellini’s guilty plea by arguing Cannellini had “‘paid his debt to society.’” But in context, the comment was in relation to how the guilty plea affected Cannellini’s credibility. The prosecutor argued Cannellini was not offered leniency in exchange for his testimony—he had pled guilty and already “paid his debt” and was not getting anything additional by testifying. We are satisfied it is not reasonably probable a limiting instruction would have resulted in a more favorable outcome.
2. CALCRIM No. 358
Barron contends the trial court erroneously instructed the jury in accordance with CALCRIM No. 358 on the use of his out of court statements. We find no prejudicial error.
Sepulveda testified that after Barron and Cannellini were arrested Barron said to Cannellini, “What did you do?” Sepulveda testified Barron did not seem concerned when he made this comment, but he seemed more agitated or bothered by being caught up in the investigation of Cannellini. Barron testified he made the statement out of surprise, because he had no idea what was going on. In closing arguments, the prosecutor made no reference to the statement. Defense counsel referred to the statement once, arguing that when Barron said to Cannellini, “What did you do?” it was “because he [knew] the police officers aren’t there because of anything he did. What did he do? He thought he was meeting a friend for lunch. That was it....”
The jury was given CALCRIM No. 358, which as given at the time of trial advised: “You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant’s oral statements unless it was written or otherwise recorded.”
Barron objects to the trial court’s inclusion of the final sentence of CALCRIM No. 358 in its charge to the jury. He argues his statement, “What did you do?” was exculpatory, and the final sentence directed the jury to view his exculpatory statement with caution and thus violated his constitutional rights.
The final sentence of CALCRIM No. 358 as given, “You must consider with caution evidence of a defendant’s oral statements unless it was written or otherwise recorded[,]” was a bracketed optional paragraph in the 2007 version of the instruction. The bench notes explain CALCRIM No. 358 is to be given sua sponte whenever there is evidence of an out of court statement by the defendant. The final cautionary sentence is to be included when there is evidence of an out of court incriminating statement by defendant that was not written or tape recorded. Furthermore, the bench notes direct that “If the jury heard both inculpatory and exculpatory, or only inculpatory, statements attributed to the defendant, give the [cautionary] paragraph. If the jury heard only exculpatory statements by the defendant, do not give the [cautionary] paragraph.” (Bench Notes to CALCRIM No. 358 (2009 2010); see also People v. Carpenter (1997) 15 Cal.4th 312, 392 393, superseded on other grounds by statute as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
We agree with Barron that because the cautionary language was not limited in application to inculpatory statements, the instruction was defective. We note the predecessor to CALCRIM No. 358, CALJIC No. 2.71, was repeatedly found proper because it limited its cautionary advice to inculpatory statements by defendant. (See People v. Vega (1990) 220 Cal.App.3d 310, 317 (Vega); see also People v. Williams (2008) 43 Cal.4th 584, 639; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) Furthermore, in the current version of CALCRIM No. 358, the cautionary paragraph has been modified to read, “Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded.” (CALCRIM No. 358.)
Although the instruction as given was defective, we find no prejudice. Barron argues the error deprived him of a fair trial because it deprived him of a defense, and therefore must be reviewed under the stringent harmless beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.) He is wrong. “Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution. [Citation.]” (People v. Dickey (2005) 35 Cal.4th 884, 935.) The standard of review is whether, absent the error, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Stankewitz (1990) 51 Cal.3d 72, 94.)
It is not reasonably probable the jury would have reached a more favorable result had the cautionary language of the instruction been omitted. “The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made.” (People v. Beagle (1972) 6 Cal.3d 441, 456, superseded by statute on other grounds.) There was no dispute the statement was made—Barron testified to it. The issue was how the words were said, and what Barron meant by them. Barron testified he made the comment out of surprise. Sepulveda testified it sounded more like he was annoyed. Arguably, Barron’s comment was susceptible to inculpatory and exculpatory meaning. Testimony that is exculpatory in one context may be inculpatory in another context. (Vega, supra, 220 Cal.App.3d at pp. 317 318.) And in such a case, certainly a defendant would be more helped than harmed if the entire testimony was viewed with caution. (People v. Frye (1998) 18 Cal.4th 894, 959, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Furthermore, we disagree with Barron’s assessment the statement was “central to his defense.” It was touched on in only one brief set of questions during his examination by defense counsel (i.e., do you remember saying it? What did you mean?), and referred to only once in passing in closing argument.
3. Cumulative Error
Barron contends the cumulative effect of the claimed errors compels reversal. The claim is one of due process. (See People v. Rogers (2006) 39 Cal.4th 826, 911). “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) “‘[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.’ [Citation.] The few errors that occurred during defendant’s trial were harmless, whether considered individually or collectively. Defendant was entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, whether considered individually or for their cumulative effect, any of the errors alleged by Barron did not affect the process or accrue to his detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565.) We are satisfied he received a fair trial and deny his claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.