Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10492.
BUTZ, J.
After a jury trial, defendant Raymond Michael Gutierrez was convicted of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and unlawful possession of a controlled substance, Vicodin (id., § 11350). He appeals from the ensuing order of probation.
Defendant contends that (1) the prosecutor committed prejudicial misconduct (a) in threatening a prospective witness for the defense and (b) by his statements made during closing argument; and (2) the trial court erred in granting motions in limine to admit (a) hearsay evidence in rebuttal if defendant adduced certain evidence tending to show the methamphetamine was possessed for personal use and (b) evidence that he admitted to the arresting officer that the room where narcotics were found was his bedroom. Finding no merit in his contentions of error, we shall affirm the judgment (order of probation).
FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 2005, Sacramento County Sheriff’s Department Detective Kevin Reali and other officers went to a residence at 4126 Greenlawn Way around 8:00 p.m. Reali noticed a little video cam lens in the front window pointing towards the front porch. The officers entered the house and detained two or three people in the living room adjoining the front door. As Reali crossed the room he saw defendant come out of a back bedroom and close the door behind him. Reali announced that the officers were with the Sheriff’s Department and put handcuffs on defendant. Reali asked whose bedroom he had come out of and defendant replied it was his. The parties stipulated that the entry into the house was lawful.
In a white desk in the bedroom Detective Reali found two pill bottles containing suspected Vicodin pills, three packages of one-inch by one-inch Ziploc baggies, a digital gram scale, and one little baggie containing 1.6 grams of a crystalline substance he suspected was methamphetamine. One of the pill bottles had a prescription label in defendant’s name; the other had no label. In a box on the floor next to a dresser six packages were found containing, respectively, 1.9, 2.5, 5.1, 2.9, 2.2 and 1.8 grams of suspected methamphetamine. Also in the box was a plastic cup containing 11.7 grams of suspected methamphetamine. The suspected methamphetamine was in five different forms, some was crystalline, some brown and chunky, some kind of brownish. On the bed was a cell phone.
Samples of the suspected methamphetamine were tested and found to contain methamphetamine. The pills were identified as Vicodin based on their markings. No test was made of the potency of the methamphetamine.
Detective Reali opined, based on the amount and lack of a prescription label on one of the pill bottles, that the Vicodin was possessed for sale. He further opined, based on the different amounts, the packaging, the gram scale, and the video cam lens, that the methamphetamine was possessed for sale. A tenth of a gram is an ordinary user dose of methamphetamine. Even a heavy user would take about 25 days to go through the amount found in the bedroom.
Detective Reali conceded he had come across substances that looked like methamphetamine in his narcotics work that was poor quality. However, he had never heard of users saving bad methamphetamine “for a rainy day.” Users sometimes bought in bulk, “the Costco effect” and sometimes possessed scales to check the weight of methamphetamine purchases. Normal users only buy enough for a day or two at a time. No money, pay owe sheets, or ledgers were found. Nor were glass narcotics smoking pipes or other user paraphernalia found. Reali did not determine whether anyone was sharing the room with defendant. Defendant’s girlfriend, Deanna Lopez, was at the house when the sheriff’s deputies arrived. It is unusual to find methamphetamine packaged for sale in different quantities; it was also unusual for a user to split a large quantity into smaller dose packages.
Joann Virata testified for defendant as follows. During trial, at an interview with defense counsel, Deanna Lopez made the following statements. She and defendant shared the bedroom that was searched. She is a methamphetamine user, at the half gram level. She owns the scale that was seized in the bedroom.
Further background will be related in the course of the discussion.
DISCUSSION
I. Prosecutorial Misconduct
A. Threatening a Prospective Witness for the Defense
Defendant contends that the prosecutor committed prejudicial misconduct in threatening Lopez with arrest if she testified on behalf of defendant and in “capitalizing” on that misconduct by noting that Lopez did not appear as a witness. Defendant failed to make a timely objection to the misconduct, if any, and has thereby forfeited any claim on appeal.
Background on witness intimidation
Near the end of the prosecution case-in-chief, defense counsel announced that she had just decided to call Lopez, a witness not previously disclosed under Penal Code section 1054.3, as an impeaching witness. Defense counsel requested that an attorney be appointed for Lopez to advise her on the privilege against self-incrimination. After a discussion the court decided it would allow the testimony, notwithstanding late discovery, and arranged for an attorney to represent Lopez.
Counsel appointed for Lopez informed the court that he had advised her to claim the privilege and not to testify. He believed she was leaning toward accepting that advice, but had not yet “actually indicated to [him] which way it is she wants to go.” The prosecutor said he would like an offer of proof and the court declared a recess so that counsel could discuss the matter.
Thereafter the court announced that it had spoken with counsel in chambers, decided that Lopez should be called to testify in an Evidence Code section “402 hearing,” and asked the defense to call her to the stand. She claimed the privilege against self-incrimination and refused to answer any of defense counsel’s questions. When it became clear she would not testify, she was excused. After agreement from both sides that her counsel was not needed any further, he was relieved.
During closing argument the following occurred:
“[Prosecutor]: They said it was for personal use, the methamphetamine, that is. That’s what you’re going to hear in this argument. Where were the pipes to ingest it? Where were the needles? Where were the little instruments, the roll of bills to snort it up your nose if it was for personal use? There was none.
“The scale. It’s another factor. You’ve heard evidence from a witness who isn’t even here that the scale was hers. Who cares? That scale is in his bedroom. He had just as much exercise and control over it as Ms. Lopez did.
“[Defense Counsel]: Your Honor, I’m just briefly going to object in terms of unavailability and due process as to the witness who is not present and the comment in closing.
“[THE COURT]: This is argument, and it is evidence that is not before the jury. I’m sure they will be able to sort it out. And if it is not evidence before the jury, I’m sure you will make mention of that in your closing.”
After the case was rendered to the jury for its deliberation, defense counsel announced that there was a matter on which she wanted to make a record. She said that during the earlier recess discussion between counsel, before Lopez testified, the prosecutor had indicated to counsel for Lopez that, based on the witness statement he had been given, if she so testified, he would order her arrested. Defense counsel argued that was misconduct and a violation of defendant’s right to a fair trial. Asked to respond, the prosecutor said he felt obliged to clarify for Lopez’s counsel “what she might be opening herself up to,” “what she was possibly exposing herself to . . . .” Defense counsel replied that the assertions by the prosecutor about arrest were unconditional: “I will have her ordered arrested.”
The trial court opined that it was appropriate for the prosecutor to mention to a witness about to testify to illegal behavior “that they are subject to criminal prosecution.” Further, that Lopez’s counsel probably did not need to be reminded of that and “would not have responded to a threat if it were merely something that were done to try to intimidate.” Finally, that it was important for Lopez to know that her testimony “was going to subject her to liability and [she] could find herself arrested.”
The claim of misconduct by threat is not cognizable
Defendant argues that the prosecutor’s threat to Lopez’s counsel was prejudicial prosecutorial misconduct in violation of his constitutional compulsory-process right. He argues that this statement was an improper threat unnecessary to the proper performance of the prosecutor’s duties. The Attorney General suggests in response that because the remark was not made directly to Lopez or in her presence it was not misconduct and the record does not afford the requisite inference that the misconduct was a cause of defendant’s inability to present the witnesses. As appears, this claimed misconduct was potentially subject to cure and hence was waived by failure to make a timely objection.
The general rule concerning appellate review of claims of prosecutorial misconduct is stated in People v. Green (1980) 27 Cal.3d 1: “[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.” (Id. at p. 34.) “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’” (Id. at p. 27.)
People v. Green, supra, 27 Cal.3d 1 was overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 233-237 and People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.
The defense failed to object to the claimed misconduct of the prosecutor until long after it occurred, after the case had been submitted to the jury. As a result, the trial court was deprived of any opportunity to cure it. If the matter had promptly been brought to the attention of the trial court it could have taken measures to counteract the effect of the prosecutor’s remark. For example, the court could have arranged for the prosecutor to recuse himself from any decision concerning prosecution of this witness. This would have restored the status quo ante the questionable remark.
Similarly, it is unfair to claim that the court should have upheld his cryptic objection during closing argument, “in terms of unavailability and due process as to the witness who is not present,” when he had not informed the court of any potential prosecution misconduct in making the witness unavailable.
Defendant argues that an earlier objection would have been futile because when he did object, the trial court indicated that the prosecutor’s remark was not misconduct. When defense counsel finally brought the claimed misconduct to the attention of the trial court, the claim was futile. No defense request for action by the trial court was made, because it was too late to act. Soothing remarks the court made in this situation are not a valid indication of how it would have responded to a timely objection and a request for a cure.
Alternatively, defendant argues that any discussion of a cure “is speculative on this record” and that the potential cure of recusal would have been ineffective because the witness was threatened with prosecution if she testified. To the extent that discussion of a cure is speculative, that is a consequence of the defense decision not to tender a timely objection. The argument that recusal could not have been effective is unpersuasive. The witness was not personally threatened, her lawyer was informed of that threat by a particular prosecutor. If that prosecutor was recused, the improper threat would be neutralized. The generic “threat” of prosecution that arose from the potential of self-incrimination is not improper.
By failing to object in a timely manner, defendant took advantage of submission of the case for a jury verdict with the core of the witness’s testimony adduced as admissions against interest. He is not now entitled to another bite at the apple.
B. Other Claimed Misconduct in Closing Argument
Defendant contends that the prosecutor also committed other prejudicial misconduct during closing argument. He asserts that this consisted of: (1) vouching for Detective Reali, (2) stating that exercise of the right to trial does not imply innocence, and (3) deprecating the doctrine of the presumption of innocence. Conceding that he failed to object to these instances of claimed misconduct at trial, he argues that the misconduct was so grave it was incurable or, alternatively, that his counsel was prejudicially incompetent in failing to object. The arguments are unpersuasive and the contention of error is not meritorious.
Background
During closing argument the prosecutor made the following remarks, without objection:
“[PROSECUTOR]: “Sometimes in our system--actually, all the time, it doesn’t matter what you’re charged with, it does not matter what the crime is, it does not matter how many tons--or how many tons of evidence are stacked against you. Doesn’t matter. The D.A. still has to prove his case beyond a reasonable doubt, even if there’s not one single issue.
“The defense counsel can say, ‘All right, you got us, I’m sunk. I don’t know what to do on this case, but do your job, Mr. D.A. Mr. Harry, do your job. And I’ll come up with whatever I can think of because you need to do your job. I can sit here and do nothing.’ And that is his constitutional right.
“Just because there’s a trial doesn’t mean that he’s innocent, folks. There are things there to talk about. There are things there to discuss.
“This is all about constitutional rights. This is not about he’s not guilty. Now, he’s presumed to be innocent until proven guilty, but that scale has changed now. There’s a lot more fact that you have today than you had during that jury selection process. So let’s talk about those facts and let me tell you why the facts in this case have proven that defendant is guilty beyond a reasonable doubt.
“[¶] . . . [¶]
“And finally, before we even get [Detective] Reali’s expert opinion that this was in fact possessed for sale, so you may be thinking--and you’ll hear why should we listen to Detective Reali--why should we care what he has to say? Of course, he’s going to come in here and say it was possessed for sale.
“It’s not true. It’s not true at all. He’s a narcotics detective. He has experience. If he didn’t think this was possessed for sale, then he would tell you that.
“Let’s talk about Detective Reali’s expert opinion. Let’s talk about why you should trust him and why you should believe the opinion that he gave you.
“[¶] . . . [¶] [Gives reasons.]
“And this one is probably most important, since this is exactly the issue at hand in this case. He’s arrested over fifty people that have been suspected of possessing narcotics for sale. Through those fifty arrests, you don’t think he knows the difference between an individual possessing for personal use versus then they possess to sell to others? He absolutely knows, and he would tell you otherwise.”
As no objection was tendered, the initial question to be decided as to each of defendant’s claims is whether a timely objection and admonition would have cured the harm. Defendant offers no persuasive argument that any of these remarks was significant damaging misconduct. A fortiori, if any of the remarks were misconduct it was curable. The failure to object was not ineffective assistance of counsel because the remarks, at worst, are not very pernicious and counsel might reasonably have chosen to let them lie.
The following remarks are generally applicable to defendant’s ineffective assistance of counsel claim: “‘Failure to object rarely constitutes constitutionally ineffective legal representation . . . .’ (People v. Boyette (2002) 29 Cal.4th 381, 424.) Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) These were not situations in which there could be no satisfactory explanation for counsel’s failing to object to the remarks of which defendant now complains. For example, counsel could have preferred not to draw the jurors’ attention to particular comments by the prosecutor by objecting to them. We cannot find on this record that counsel’s performance was deficient.” (People v. Huggins (2006) 38 Cal.4th 175, 206 (Huggins).)
There was no improper vouching
Defendant argues that the prosecutor improperly vouched for Detective Reali. In the interests of judicial economy we address that claim on its merits. “Vouching” is improper when the prosecutor attempts “to bolster a witness by reference to facts outside the record” or gives personal assurances that a witness was truthful. (People v. Williams (1997) 16 Cal.4th 153, 257, quoting People v. Medina (1995) 11 Cal.4th 694, 757, italics omitted.) “It is not, however, misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party’s interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument, and that is essentially what the prosecutor did here.” (Huggins, supra, 38 Cal.4th at p. 207; see also Annot., Propriety and Prejudicial Effect of Comments by Counsel Vouching for Credibility of Witness—State Cases (1986) 45 A.L.R.4th 602.) The prosecutor asserted that, based upon his service and experience as a narcotics officer, as shown in the record, Detective Reali’s expert opinion was trustworthy. This is not improper vouching. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107, 170; People v. Anderson (1990) 52 Cal.3d 453, 478-479.)
There was no improper comment on exercise of the right to trial
Defendant suggests that the prosecutor’s remark that going to trial does not mean you are innocent is analogous to Griffin error. Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106], proscribes prosecutorial comment on the failure of the accused to testify on his own behalf. The analogy is unpersuasive.
Defendant argues that this case is very similar to People v. Rodgers (1979) 90 Cal.App.3d 368, 371-372, in which the prosecutor was upbraided for remarking: “Simply because he exercises those [Fifth Amendment] constitutional protections does not mean that he’s innocent, does not mean that you are supposed to find him not guilty.” This remark is taken out of context by defendant in this case. In Rodgers it culminated and harkened back to a series of remarks attacking the defendant for failing to testify, e.g., “‘all a person would have to say is, “I didn’t do it.”’” (Id. at p. 371, italics omitted.) There was no such series of criticisms here. There is no analogy to Griffin error here. This was not an adverse comment on the exercise of the right to trial. There was no suggestion to hold the right to trial against defendant because he exercised it.
Misstatement of law re: the presumption of innocence
Defendant argues that the prosecutor improperly deprecated the presumption of innocence. He argues that the prosecutor misstated the law as to the presumption in the remark, “he’s presumed to be innocent until proven guilty, but that scale has changed now.” The argument is unpersuasive.
In context, all the prosecutor said is defendant is presumed innocent until proven guilty, but he has had a trial, and has been proven guilty. As the Attorney General notes, that is permissible. (See People v. Goldberg (1984) 161 Cal.App.3d 170, 189; Pen. Code, § 1096 [“A defendant in a criminal action is presumed to be innocent until the contrary is proved”].)
Assuming, arguendo, that any of the remarks of which defendant complains were improper, none was particularly pernicious. Each could have been cured by an appropriate admonition and none was so damaging that the defense counsel would have been ineffective in choosing to let them go without objecting.
II. Trial Court’s Rulings on Motions in Limine
A. Rebuttal Evidence of Tip to Law Enforcement That Defendant Was Selling Drugs
Defendant contends that the trial court erred in making a contingent motion in limine ruling that hearsay evidence could be admitted in rebuttal, if defendant chose to adduce a statement by Lopez that there were pipes for personal use of the methamphetamine in defendant’s bedroom. He argues the evidence was hearsay offered for a hearsay purpose and would have violated his Sixth Amendment right to confront the hearsay declarant. The evidence was offered for a nonhearsay purpose and hence, the right to confrontation would not have been implicated.
One of the statements that Lopez made to defense counsel in a pretrial interview was that there had been pipes to use methamphetamine on the bed in defendant’s room. The prosecutor asked for a ruling that this evidence would open the door to rebuttal evidence that the sheriff’s deputies had come to search because they had a tip that defendant was selling. The prosecutor argued that this was admissible for the limited purpose of showing the state of mind of the searching officers, that they would not have conducted a thorough search and not casually overlooked pipes. After an extended running colloquy the court opined that “how thorough and the thought process of the cops going in there and looking for it I think would be very relevant to that point.” The court said it would allow evidence that Detective Reali had reason to believe that defendant was selling, but would fashion a limiting instruction on state of mind to prevent use of the tip for the truth thereof. Defendant decided not to adduce Lopez’s statement about the pipe.
The Attorney General preliminarily argues that we should decide that the matter is not reviewable because the ruling was contingent and defendant decided not to adduce Lopez’s statement about the pipes. He suggests that the situation is analogous to failure to take the stand after an in limine ruling that a prior conviction would be allowed for impeachment. In that situation, the ruling is not reviewable unless the defendant actually testifies. (E.g., People v. Gonzales (2006) 38 Cal.4th 932, 958-959.) Because the point would involve making new law and defendant’s arguments on the merits are simply unpersuasive, we eschew answering the interesting question raised by the Attorney General.
As related, defendant argues that evidence that Detective Reali came to the residence with reason to believe that defendant was selling was hearsay offered for a hearsay purpose. He submits that the evidence was irrelevant for any purpose except to show that defendant was selling methamphetamine.
Defendant entirely fails to address the argument offered and accepted in the trial court, that the evidence was relevant to show the officer’s state of mind. “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence that the officers went to the residence with the expectation that a search would uncover evidence of felony sales of methamphetamine has some tendency to prove that they would have been more diligent in the search than if it were a mere unexpected fortuity that methamphetamine turned up.
Thus, defendant’s argument that the only relevance of the evidence was for the truth of the matter stated in the tip is unpersuasive. Insofar as the evidence was adduced to prove a matter other than the truth of the matter stated, it was not hearsay evidence. (Evid. Code, § 1200.) Insofar as the evidence was not hearsay evidence and would not have been admitted for a hearsay purpose, the Sixth Amendment would not have been implicated. (E.g., People v. Mendoza (2007) 42 Cal.4th 686, 698-699.) For all the foregoing reasons, defendant’s arguments are unpersuasive and the contention of error is not meritorious.
B. Evidence of Defendant’s Admission That Bedroom Was His
Defendant contends that the trial court erred in granting a motion in limine allowing evidence that he admitted to Detective Reali that the bedroom he had come out of was his bedroom. He argues this was a violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) because a Miranda admonition was not given before the admission was elicited. Defendant submits that a prior Miranda admonition was required because he was subjected to custodial questioning by Detective Reali’s question. The argument is unpersuasive and the contention of error is without merit.
The term “custodial interrogation,” which triggers the law enforcement officer’s duty to give the Miranda admonition, is a term of art. (See, e.g., Annot., What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation—At Suspect’s or Third Party’s Residence (2007) 28 A.L.R.6th 505.) Not every statement obtained from a suspect while the suspect is in custody is the product of “interrogation.” The duty arises when the officer should know the questioning is reasonably likely to elicit an incriminating response.
Nonaccusatory questions in communications needed to accomplish a lawful search or arrest or to process a custodial detention are not designed to elicit incriminating statements. (See People v. Jones (1979) 96 Cal.App.3d 820, 828.) Thus, it may not be readily apparent to an officer that such questions will likely elicit such a response. Moreover, as here, the imposition of a broad Miranda admonition obligation to all such questions could implicate other important values, e.g., other important rights and efficient administration of justice, with little practical gain in furthering the purposes of the Miranda rule. (Miranda, supra, 384 U.S. at pp. 445-450 [16 L.Ed.2d at pp. 707-710]; see generally People v. Terry (1970) 2 Cal.3d 362, 382-383.)
Thus, a peace officer was not required, under former subdivision (e) of Penal Code section 647, to give a Miranda admonition before asking a person who appeared to be loitering to identify himself. (People v. Weger (1967) 251 Cal.App.2d 584, 602-603.) Nor, is an admonition required to introduce evidence of a defendant’s giving his home address in response to a routine booking interview question. (People v. Herbst (1986) 186 Cal.App.3d 793, 798; see also, e.g., United States v. Sims (11th Cir. 1983) 719 F.2d 375, 378.)
In this case defendant was a probationer. One of the conditions of his probation was that property under his control was subject to search without a warrant. Such a search condition applies to the common areas of the probationer’s residence, but not of necessity to separate bedrooms of persons who share that residence. (See, e.g., People v. Woods (1999) 21 Cal.4th 668, 681 & id. at pp. 685-686 (dis. opn. of Brown, J.); People v. Alders (1978) 87 Cal.App.3d 313, 317-318.) From all that appears, Detective Reali’s single nonaccusatory question whether the bedroom defendant had come out of was his bedroom was necessary to determine what portion of the premises was within defendant’s control and thus subject to search. Such an inquiry advances the privacy interest of other residents. In these circumstances, for all the foregoing reasons, we conclude that a Miranda admonition was not required as a prerequisite to admission of evidence of defendant’s response.
DISPOSITION
The judgment (order of probation) is affirmed.
We concur: SIMS, Acting P.J., ROBIE, J.