Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CF1137, Daniel J. Didier, Judge, and Duane Neary, Temporary Judge (pursuant to Cal. Const., art. VI, § 21).
Cathy A. Neff, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FYBEL, J.
OPINION
Introduction
A jury found defendant William Edward Molson guilty of simple possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) and possession of controlled substance paraphernalia in violation of section 11364. The trial court placed defendant on three years’ formal probation and ordered him to participate in a drug treatment program under Penal Code section 1210.
We appointed counsel to represent defendant on appeal. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738, appointed counsel suggested we consider possible issues pertaining to the trial court’s (1) denial of defendant’s motion for a mistrial based on the prosecutor’s opening statement commenting on whether defendant would testify at trial (see Griffin v. California (1965) 380 U.S. 609) and (2) admission of a police officer’s testimony he had received numerous complaints about drug sales occurring in the area where defendant was arrested.
On June 19, 2008, this court provided defendant 30 days to file written argument on his own behalf. That period of time has passed, and we have received no communication from him.
Defendant’s attorney informed the court that according to defendant’s probation officer, defendant’s whereabouts have been unknown since June 4, 2008. This court mailed a copy of its June 19 order to defendant’s last known address.
We have examined the entire record and counsel’s Wende brief, and find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
Facts and Proceedings in the Trial Court
Defendant was charged in an information with felony possession of cocaine base for sale in violation of Health and Safety Code section 11351.5 and misdemeanor possession of controlled substance paraphernalia in violation of section 11364. With regard to the felony possession of cocaine base for sale charge, the information further alleged, within the meaning of Penal Code section 1203.07, subdivision (a)(11) and Health and Safety Code section 11370.2, subdivision (a), that defendant was previously convicted of violating Health and Safety Code sections 11351 and 11352, subdivision (a).
At trial, evidence was presented showing that about 5:16 a.m. on April 1, 2007, two police officers were patrolling an area in the City of Santa Ana, known for the regular presence of crack cocaine users and sellers, when they saw a parked car with its dome light on. The officers saw a person sitting in the driver’s seat and defendant leaning into the car while standing next to the open front passenger door. The officers got out of their police car and approached the parked car. Defendant dropped two T-shirts he had been holding to the ground.
One of the officers conducted a patdown search of defendant and found a clear tubular glass pipe, consistent with the type of pipe used to smoke crack cocaine, inside a package of cigarettes in one of defendant’s pockets. The officer also found about two grams of crack cocaine contained within the T-shirts defendant had dropped when the officers arrived. After defendant was arrested and taken to the police department, a second crack pipe and about $38 were found on defendant.
The jury found defendant not guilty of felony possession of cocaine base for sale as alleged in the information, but guilty of the lesser included offense of simple possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). The jury also found defendant guilty of possession of controlled substance paraphernalia as alleged in the information. The trial court dismissed the prior conviction allegations. The court suspended the imposition of sentence and placed defendant on three years’ formal probation. Defendant appealed.
Analysis of Potential Issues
Appointed counsel suggested we consider the following possible issues: (1) “Under the rule in Griffin v. California (1965) 380 U.S. 609 . . ., did the trial court commit error in denying the defense motion for a mistrial based upon the prosecutor’s opening statement in which she commented on whether appellant would testify at trial?” and (2) “Did the trial court err in admitting a police officer’s testimony that he had received numerous complaints about people selling drugs in the area where appellant was arrested?” We address each possible issue in turn.
First, in Griffin v. California, supra, 380 U.S. 609, the United States Supreme Court held the prosecutor may not comment on a defendant’s failure to testify on his or her own behalf. During her opening statement, the prosecutor stated, “[y]ou’re going to learn that [defendant] was homeless. At the time he was a transient at the mission. You’re going to learn that from, I anticipate not only from my officers, but maybe from [defendant] if he takes the stand, I don’t know.” The trial court sustained defense counsel’s unspecified objection to the prosecutor’s statement and admonished the jury that “[w]hat the attorney says is not evidence.” The prosecutor continued her opening statement, stating: “Certainly the defendant doesn’t have to take the stand. And in any way that he does, you will learn that the defendant was a homeless transient at the time.”
Here, the prosecutor did not comment on defendant’s failure to testify. Instead, she informed the jury that the prosecution’s witnesses (and defendant if he were to testify) would state defendant was homeless. The prosecutor’s comments, therefore, did not constitute error within the meaning of Griffin v. California, supra, 380 U.S. 609. Even if the prosecutor’s comments constituted error, any such error was harmless because the prosecutor’s reference to whether defendant might testify was brief and benign. (People v. Bradford (1997) 15 Cal.4th 1229, 1340 [a prosecutor’s “‘indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error’”].)
Second, we review the trial court’s decision to admit or exclude evidence for an abuse of discretion. (People v. Williams (2006) 40 Cal.4th 287, 317.) One of the police officers testified that the Santa Ana Police Department had received numerous complaints on a weekly basis from residents and business owners that narcotics sales were occurring day and night in the area where defendant was arrested. Defendant’s counsel objected to that testimony based on “relevance [Evidence Code section] 352, hearsay, [and] Crawford[ v. Washington (2004) 541 U.S. 36].” (Italics added.) The trial court overruled defense counsel’s objections. The record does not show the admission of this testimony constituted an abuse of discretion. (See, e.g., People v. Souza (1994) 9 Cal.4th 224, 240 [“An area’s reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable”].)
Our review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appointed counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented defendant in this appeal.
Disposition
The judgment is affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.