Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD203184 George W. Clarke, Judge.
BENKE, Acting P. J.
A jury convicted defendant and appellant Luther John Espy of selling cocaine base (Health & Saf. Code, § 11352, subd. (a)) and possessing cocaine base for sale (§ 11351.5). The court sentenced Espy to prison for a total term of nine years.
All further statutory references are to the Health and Safety Code unless otherwise specified.
Espy appeals, contending the prosecutor's statements in her closing and rebuttal arguments constitute prejudicial misconduct warranting reversal. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2006, San Diego Police Officer Jessie Zaldivar was acting undercover as a purchaser of narcotics in a "buy-bust" operation in downtown San Diego. At around 9:30 p.m. Zaldivar approached two women on the corner of 15th Street and Island Avenue and asked if anybody was "serving," which means "selling cocaine base." The women led Zaldivar to a group of people standing near 14th Street. As Zaldivar walked toward the group, he was approached by Drew Nesbit. Nesbit asked Zaldivar what he wanted, and Zaldivar stated he was "looking for a 20" (i.e., looking to purchase $20 worth of rock cocaine). Zaldivar complied with Nesbit's request to follow him.
Nesbit led Zaldivar to a woman, later identified as Deanna Jenkins, and a man, later identified as Espy. Nesbit informed Espy that Zaldivar was looking for a "20." Espy walked a few steps, put his fingers in his mouth and removed a rock of cocaine base. Espy handed the rock to Nesbit and said: "Here. Give him this." Nesbit broke the rock into three pieces, giving two pieces to Zaldivar and keeping one for himself. Nesbit told Zaldivar to pay for the rock by placing the money in Nesbit's hand. Zaldivar gave four pre-recorded $5 bills to Nesbit, who then handed the money to Espy.
As Espy, Nesbit and Jenkins walked away, Zaldivar gave suspect descriptions and a pre-arranged arrest signal to the other police officers waiting nearby. In their marked patrol cars, uniformed Officers Francis Bradley and Ricardo Rivas saw Espy, Nesbit and Jenkins walking away. Rivas arrested Nesbit and Jenkins without incident. Espy, however, began to run.
When Bradley saw Espy begin to run, he got out of his patrol car and ordered Espy to stop. Because Espy continued to flee, Bradley began chasing Espy on foot. Bradley pursued Espy as he crossed 13th Street, ran between two parked cars, got back onto the sidewalk and then ran into the intersection. Espy entered a vacant lot and finally stopped running. Bradley then arrested Espy. As Bradley escorted Espy back to Bradley's patrol car, Zaldivar, riding in a patrol car, drove by and identified Espy as the man who sold him the rock cocaine.
After securing Espy in the patrol car, Bradley retraced Espy's flight path in an attempt to find evidence relating to the purchase. Between the two parked cars where Espy had run, Bradley found the four prerecorded $5 bills Zaldivar used in the purchase. Bradley also recovered an additional $72 in crumpled bills underneath one of the parked cars.
Espy's defense at trial was that Nesbit made the sale on his own. Nesbit testified for the defense that he was acting alone, and it was he, not Espy, who sold the drugs to Zaldivar. Nesbit testified he was currently in custody for selling cocaine base to Zaldivar on November 30, 2006. Nesbit said Zaldivar approached him and asked: "Does anybody have a 20?" Nesbit told Zaldivar to walk with him down the street "because I don't do nothing, like, in one spot." "[I]t looks too obvious." Nesbit stated he stopped walking, took a piece of rock cocaine from his mouth, broke it and gave a piece of it to Zaldivar. Nesbit said Zaldivar then paid Nesbit a total of $20, sliding it to him "like on the low." Nesbit testified Zaldivar paid with seven bills consisting of five $1 bills, a $5 bill and a $10 bill.
Nesbit further testified that as he began walking away, he noticed police cars approaching him and quickly threw the money into the gutter or drainage ditch. Nesbit said he was arrested on "13th and Island, 14th, whatever." Officers placed Nesbit into a patrol car with Espy. Nesbit testified Espy had nothing to do with the sale and that he did not even see Espy until he was arrested.
After the four-day trial, including one day of deliberation, the jury convicted Espy of both selling cocaine base (count 1) and possessing cocaine base for sale (count 2). The court sentenced Espy to prison on count 1 for the middle term of four years, doubled under the three strikes law. The court imposed but stayed an eight-year term on count 2 under Penal Code section 654. The court imposed an additional one-year term for the prison prior enhancement (Pen. Code, § 667.5), for a total term of nine years.
DISCUSSION
I
Prosecutorial Misconduct in Closing Argument
Appellant contends the prosecutor engaged in misconduct in closing and rebuttal argument by (1) vouching for the credibility of Officers Zaldivar and Bradley, (2) maligning the veracity of Nesbit's testimony, (3) erroneously arguing Nesbit had nothing to lose by committing perjury on the witness stand, (4) inflaming the passions and prejudices of the jury by urging them to base the verdict on the social good, (5) introducing facts not in evidence and (6) diluting and dismissing the beyond a reasonable doubt standard. Appellant asserts the misconduct resulted in a miscarriage of justice and requires reversal.
A. Procedural Background
In closing argument, the prosecutor urged the jury to believe the testimony of Zaldivar and Bradley over that of Nesbit. The prosecutor argued Zaldivar was a police officer with eight years' experience whose credibility in court was crucial to his job. The prosecutor told the jury Zaldivar was not "just any eyewitness" or "someone off the street," but rather was an "experienced police officer" who witnessed a crime. Additionally, the prosecutor argued Nesbit was a drug dealer who had nothing to lose in this case by lying on the witness stand because he pleaded guilty and had already been sentenced.
In response, the defense argued the case was really about gentrification and the officers' casting too wide a net to clean up a neighborhood that citizens were complaining about. Defense counsel told the jury Zaldivar, as an undercover officer, was a trained "deceiver," and that the narcotics undercover officers "set up a system that limits any kind of independent review of what they're doing." The defense emphasized the officers failed to (1) record the transaction on Zaldivar's one-way transmitter, (2) take a photograph of the location where they retrieved the prerecorded money and (3) find the extra piece of cocaine base Nesbit kept for himself. Further, defense counsel questioned the accuracy of Zaldivar's suspect description identifying Nesbit and Espy on the scene.
During rebuttal argument, the prosecutor responded to defense counsel's characterization of the case being about gentrification. The prosecutor argued the officers lacked the financial resources to record every undercover narcotics transaction due to the San Diego Police Department's "budget crisis." The prosecutor told the jury they could not even "consider that" Zaldivar altered evidence or embellished his story to support the additional arrest of Espy, based on the absence of any evidence supporting such an allegation. The prosecutor also commented Nesbit appeared to be deceitful while testifying and stated: "The word of the officers in this case is enough. When you compare it to the word of the only defense witness, it's no contest."
Defense counsel did not object to any of the prosecutor's arguments.
B. Prosecutor Has Wide Latitude during Argument
Improper remarks by a prosecutor can so infect the trial with unfairness as to make the resulting conviction a denial of due process. (People v. Earp (1999) 20 Cal.4th 826, 858; Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464].) The defendant need only show the prosecutor's misconduct prejudiced his right to a fair trial, regardless of whether the misconduct was intentional or inadvertent. (People v. Hill (1998) 17 Cal.4th 800, 822.) "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 trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) When the claim focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Frye (1998) 18 Cal.4th 894, 970.)
A prosecutor may not misstate the law generally or in an attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. (People v. Hill, supra, 17 Cal.4th at p. 829.) Nevertheless, a prosecutor is given wide latitude during argument. Prosecutorial argument may be vigorous, as long as it amounts to fair comment on the evidence, including reasonable inferences or deductions that may be drawn from that evidence. During closing argument, counsel may state matters that are not in evidence but that are common knowledge or illustrations drawn from common experience, history or literature. (Id. at p. 819.)
Further, a prosecutor is entitled to comment on the credibility of a witness based on evidence adduced at trial. (People v. Thomas (1992) 2 Cal.4th 489, 529.) Prosecutorial assurances regarding the honesty or reliability of a prosecution witness, supported in the record, do not constitute improper "'vouching.'" (People v. Medina (1995) 11 Cal.4th 694, 757.) However, a prosecutor may not suggest he or she has information undisclosed to the jury bearing on the issue of credibility, veracity or guilt. The danger in such remarks is jurors will believe that some inculpatory evidence, known only to the prosecution, has been withheld from them. (People v. Green (1980) 27 Cal.3d 1, 35; People v. Padilla (1995) 11 Cal.4th 891, 945-946, overruled on another ground in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
The defendant has the burden of showing the existence of prosecutorial misconduct. Whether prosecutorial misconduct warrants a mistrial is a determination within the sound discretion of the trial court. (People v. Price (1991) 1 Cal.4th 324, 430.)
1. Vouching
Appellant contends the prosecutor committed misconduct by vouching for the credibility of Officers Zaldivar and Bradley.
Impermissible vouching occurs "where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness's veracity or suggests that information not presented to the jury supports the witness's testimony." (People v. Fierro (1991) 1 Cal.4th 173, 211.) However, when the prosecutor's assurances about the truthfulness of the witness's testimony are based on facts from the record or reasonable inferences therefrom, the comments cannot be characterized as vouching. (People v. Zambrano (2007) 41 Cal.4th 1082, 1167.)
Here, to counter defense counsel's characterization of the officers as "deceivers," and "eager beavers," the prosecutor was entitled to argue Zaldivar's training and experience supported the conclusion that he had no motive or reason to lie and every reason to tell the truth. The prosecutor properly attempted to illustrate her point by stating Zaldivar had "been a police officer for eight years" and "[h]is credibility is one of the greatest tools he has to do his job." The prosecutor stated if Zalidvar "came in and made up all of the testimony that he related to you, he has an awful lot to lose."
Contrary to Espy's position, the prosecutor's comments did not make her an unsworn witness to Zaldivar's credibility. The prosecutor did not imply she knew facts not in evidence nor did she express her personal opinion of Zaldivar's credibility. (People v. Stansbury (1993) 4 Cal.4th 1017, 1059, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318 [argument that witness was credible and had done great deal of soul searching was proper comment on the evidence, not an attempt by prosecutor to vouch personally for witness's credibility]; cf. People v. Herring (1993) 20 Cal.App.4th 1066, 1076-1077 [misconduct occurred when prosecutor argued that defense counsel told his clients murderers, rapists, robbers and child molesters what to say and did not want the jury to hear the truth].) There was no reasonable likelihood the jury construed the prosecutor's comments in an objectionable way, and thus no prosecutorial misconduct resulted.
2. Impugning Nesbit's Credibility
Espy also asserts the prosecutor improperly impugned Nesbit's credibility. A prosecuting attorney may permissibly comment on facts showing the lack of credibility of a defense witness and ask the jury to disbelieve that witness. (People v. Monterroso (2004) 34 Cal.4th 743, 783-784.)
Here, the prosecutor was likewise allowed to ask the jury to disbelieve Nesbit based on his guilty plea and demeanor on the witness stand. On cross-examination, Nesbit testified he pleaded guilty in this case to the two charges the jury was considering against Espy. In rebuttal, the prosecutor told the jury Nesbit was a drug dealer who pleaded guilty and had already been sentenced. The prosecutor argued Nesbit appeared to be deceitful during his testimony.
The prosecutor's remarks about Nesbit's credibility was a fair comment on the evidence and inferences to be drawn from that evidence. (People v. Hill, supra, 17 Cal.4th at p. 819.)
3. The Prosecutor Did Not Lie In Stating Nesbit Had Nothing to Lose In This Case
Espy claims the prosecutor lied regarding the consequences Nesbit could face if he lied under oath. In argument, the prosecutor may make fair comments on the evidence and inferences to be drawn from that evidence. (People v. Hill, supra, 17 Cal.4th at p. 819.)
In this case, Nesbit testified on cross-examination that his case had concluded. The prosecutor asked Nesbit: "So as far as you're concerned this case is behind you, it has no impact on you for the future?" Nesbit responded: "It was supposed to be behind me. I don't know what happened. I was in prison and somebody woke me up and told me I had to go to court. It was behind me. But I guess it's not now, huh. In argument, the prosecutor stated: "This case is in his rearview mirror. It's behind him. He has nothing to lose by coming in here. It's not as if a sentencing date is pending for Drew Nesbit in the future. And if he came in here and lied, that might be taken into account by [the sentencing] judge. He's been sentenced. There is nothing hanging over his head with respect to this particular case."
The prosecutor permissibly told the jury to consider Nesbit's felony conviction in assessing his credibility. Although the prosecutor did not explicitly state Nesbit could face charges for perjury, in context, the prosecutor's statement that Nesbit had nothing to lose in this case by lying on the witness stand clearly referred to the fact that Nesbit had already pleaded guilty and had been sentenced. Thus, there was no reasonable likelihood the jury construed the prosecutor's comments in an objectionable way, and no prosecutorial misconduct resulted.
4. Inflaming the Passions and Prejudices of the Jury
Appellant further contends misconduct occurred when the prosecutor appealed to the passions and prejudices of the jury by urging them to focus on the social ills created by drug dealing in general. A prosecutor commits misconduct by making comments designed to arouse passion or prejudice. (People v. Mayfield (1997) 14 Cal.4th 668, 803.) Comments will not be construed in this manner, however, unless a reasonable juror would have so interpreted them. (People v. Bradford (1997) 15 Cal.4th 1229, 1379.)
Here, defense counsel argued the narcotics team was conducting buy-busts in the downtown area because new people and businesses were moving into the neighborhood, and these new residents wanted to clear the area of undesirable groups. Defense counsel asserted the officers unfairly targeted Espy and other young African-American males in an effort to rid the neighborhood of unwanted individuals.
The prosecutor permissibly responded to this argument in rebuttal, stating: "They are out there trying to clean up the mess. . . . I don't think I'm the only one here that would prefer, given the choice, to not have a drug deal going on outside my bedroom window." At the end of argument, the prosecutor also told the jury to consider only the evidence and the law and stated: "Don't consider any pity or prejudice in one direction or another." Accordingly, reasonable jurors would not have construed the prosecutor's comments as an appeal to the passion or prejudice of the jurors. (People v. Bradford, supra, 15 Cal.4th at p. 1379.)
5. The Prosecutor Introduced Facts Not In Evidence
Appellant contends the prosecutor committed misconduct when she introduced facts not in evidence. A prosecutor may not mischaracterize the evidence, make reference to facts not in evidence, or even imply facts not in evidence. (People v. Purvis (1963) 60 Cal.2d 323, 343; People v. Bain (1971) 5 Cal.3d 839, 847-850.)
In this case, defense counsel argued the police department had the ability to procure recording devices to record undercover narcotics transactions but intentionally choose not to, so as to avoid any department oversight.
In rebuttal, the prosecutor responded: "[E]veryone is aware of the incredible budget crises [the San Diego Police Department has]." The prosecutor expounded: "They don't even have enough officers right now. They certainly don't have the resources to record each of these transactions using video cameras. They are on a very, very short leash financially right now. They aren't recording all of these transactions. They are out there every single night." Respondent asserts the financial difficulties referenced were proper subject for closing argument because they were on the news and were matters of common knowledge.
Although the record contains no facts relating to a budget crisis or the availability of recording devices, the testimony of the only defense witness, Nesbit, was nevertheless contradicted by the other witnesses and by the physical evidence presented at trial. Thus, even though the prosecutor asserted facts not in evidence by mentioning budgetary constraints, this did not likely prejudice the jury's verdict under either state or federal constitutional standards. (See People v. Hill, supra, 17 Cal.4th at p. 828.)
6. The Prosecutor Did Not Misstate the Law
Appellant contends the prosecutor committed prejudicial misconduct in rebuttal by misstating and dismissing as "irrelevant" the "beyond a reasonable doubt standard." A prosecutor commits misconduct when her comments dilute and trivialize the People's burden of proof. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37.) Prosecutors may, however, routinely use the same or similar examples to assist juries with legal concepts. (See People v. Smith (2003) 30 Cal.4th 581, 602-603 [district attorney did not commit misconduct during voir dire by using example of shopping trip to illustrate difference between "considering" death penalty and "choosing" to impose it].)
Here, the prosecutor stated the People had the burden of proof beyond a reasonable doubt, the highest burden of proof in the court system. The prosecutor told the jury reasonable doubt meant "proof that leaves you with an abiding conviction that the charge is true." Further, the prosecutor routinely explained abiding conviction to mean a decision which the jurors would believe was correct in the coming weeks, months and years. After giving this example, the prosecutor stated: "I don't think that even really is relevant here in this case because I don't think there is a lot of room for doubt."
The prosecutor permissibly argued the evidence in this case was clear cut and plainly told the jury the fact the People need not prove the case beyond all possible doubt was not relevant because even this burden had been met. When viewed in their entirety, the prosecutor's remarks were not likely to mislead jurors about the reasonable doubt standard. (People v. Stewart (2004) 33 Cal.4th 425, 508.)
C. Prejudice
There is no reasonable likelihood the jury construed or applied any of the prosecutor's remarks in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The prosecutor's closing argument did not render Espy's trial fundamentally unfair nor did it involve the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Ayala, supra, 23 Cal.4th at pp. 283-284.) Accordingly, the prosecutor's remarks did not amount to prejudicial misconduct warranting reversal. (People v. Ervin (2000) 22 Cal.4th 48, 101.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., NARES, J.