Opinion
D072845
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD DIAZ AGUILERA, JR., Defendant and Appellant.
Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1314870) APPEAL from a judgment of the Superior Court of Riverside County, Randall D. White, Judge. Affirmed. Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Richard Aguilera guilty of transport of methamphetamine for sale (count 1, Health & Saf. Code, § 11378, subd. (a)), possession of methamphetamine for sale (count 2, Health & Saf. Code, § 11378), attempt to destroy and conceal evidence (count 3, Pen. Code, §§ 664/113), and resisting a peace officer (count 4, Pen. Code, § 148, subd. (a)). The court sentenced Aguilera to prison for seven years.
On appeal, Aguilera argues the prosecutor committed misconduct. Aguilera contends the misconduct created a fundamentally unfair trial and it was reasonably probable a more favorable result would have been reached absent the misconduct. We find the error harmless and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Deputy Morgan Johnson and District Attorney Investigator Douglas Collier were on patrol in Corona when Johnson noticed Aguilera on a motorcycle, pulled up beside a parked vehicle. Johnson thought the scene looked suspicious and started driving towards Aguilera. Johnson stated that Aguilera "looked up, saw our car, and immediately jumped on the motorcycle and tried to flee away from us."
James Fry was the driver of the parked vehicle. Fry stated he and Aguilera were discussing Aguilera's motorcycle. Fry told Aguilera to go to Fry's home so he could adjust the carburetor. Both Aguilera and Fry then drove to Fry's house.
Johnson and Collier followed Aguilera to Fry's residence. When Johnson and Collier exited their vehicle, Aguilera removed a tape measure from his waistband and threw it over and behind the officer's heads. The tape measure contained 16 bindles of methamphetamine.
Aguilera also had $102 on him, made up of five $20 bills and two $1 bills. Aguilera was not under the influence and was not carrying any tool to use the methamphetamine. Aguilera was not carrying a weapon, adulterants (substances used to increase the amount of drugs), or any scale to measure the drugs.
Deputy Russell Williams gave his professional opinion that the evidence in Aguilera's case supported carrying drugs for sale. Williams stated the 16 "equal-size packages speaks to sales" because users avoid carrying multiple, smaller packages since that packaging is indicative of drug sales. Aguilera was not high at the time, which makes it less likely Aguilera was carrying the methamphetamine for use. Williams stated most users would not be able to resist using methamphetamine if they were carrying such a large quantity. Finally, Williams testified the five $20 bills were possibly indicative of five recent sales.
During closing argument, the prosecutor stated that being a juror "is probably one of the best ways, even more than voting, that you can control what happens in your community, where your kids grow up and your parents grow old." Aguilera did not object to this statement. The prosecutor continued and stated, "[t]ake this opportunity, seriously, to have a very important say in what goes on in your community, your streets where you live." Aguilera objected to this statement as inflammatory and prejudicial. The court overruled the objection.
DISCUSSION
Aguilera contends the prosecutor committed misconduct. Aguilera argues he did not forfeit this challenge because an objection would have been futile, the review involves fundamental constitutional rights, or alternatively, Aguilera received ineffective assistance of counsel. Respondent contends Aguilera forfeited his right to appeal and, regardless of forfeiture, the prosecutor's argument was proper. Respondent also argues any error would be harmless. We conclude that although Aguilera did not forfeit his claim, and the prosecutor's statements were improper, the error was harmless. Accordingly, we affirm the judgment.
I
FORFEITURE
Failing to object to prosecutor misconduct during trial forfeits the right to challenge the misconduct on appeal. (People v. Panah (2005) 35 Cal.4th 395, 462.) However, two exceptions to such forfeiture are: (1) if the objection would have been futile, and (2) sustaining the objection would not have cured the harm caused by the misconduct. (Ibid.)
Aguilera argues he did not forfeit his right to appeal because an objection to the prosecutor's first statement would have been futile. The two statements under review are similar. In both, the prosecutor told the jurors they have an important opportunity to impact what happens in their communities. It is likely the court would have overruled an objection to the first statement because the court overruled Aguilera's objection to the second statement. We agree any objection to the first statement would have been futile, and Aguilera did not forfeit his right to raise the challenge on appeal.
Aguilera also argues that forfeiture does not apply because the issue involves fundamental constitutional rights and he received ineffective assistance of counsel. We need not address these arguments because we will consider the merits of Aguilera's challenge.
On appeal for a claim of ineffective assistance of counsel, an appellant must show the trial counsel acted unreasonably and the conduct was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Aguilera's claim for ineffective assistance of counsel is based on his trial counsel's failure to object to the prosecutor's closing. Because we do not find forfeiture, we do not need to analyze Aguilera's ineffective counsel claim. --------
II
MISCONDUCT
Prosecutor misconduct must "infect the trial with such unfairness as to make the conviction a denial of due process" to be unconstitutional. (People v. Morales (2001) 25 Cal.4th 34, 44.) A trial is fundamentally unfair when prosecutor misconduct " ' "involves ' "the use of deceptive or reprehensible methods to attempt to persuade" ' " ' " the jury. (People v. Cunningham (2001) 25 Cal.4th 926, 1000, quoting People v. Earp (1999) 20 Cal.4th 826, 858.) It is improper for the prosecutor to appeal to the passion or prejudice of the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 92.) It is also improper for prosecutors to persuade jurors to convict " 'in order to protect community values, preserve civil order, or deter future lawbreaking' " because of increased probability the jurors will make decisions not based on the guilt or innocence of the accused. (United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252, 1256.)
Aguilera contends the prosecutor's statements were improper because they "shifted the jury's focus from Aguilera's individual guilt or innocence to the broader social problem of illegal drug abuse." The prosecutor told jurors to protect their communities, their streets, and their loved ones. Through the statements, the prosecutor was persuading the jurors that they could protect their family and their homes through a conviction. The statements certainly appeal to the passions and prejudices of the jury. We agree the statements were improper. (Cf. People v. Turner (1983) 145 Cal.App.3d 658, 674 [improper to emotionally appeal to the jurors but finds the conduct did not affect the verdict].)
III
HARMLESS ERROR
On appeal, reversal is proper only when is it reasonably probable a more favorable result would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The prosecutor statement's made at closing argument did not rise to reversible error. Aguilera contends that but for the prosecutor misconduct, at least one juror would have had a reasonable doubt as to whether Aguilera possessed the drugs for sale. We do not agree.
Aguilera was found with 16 separate baggies of methamphetamine and no device for using the methamphetamine. The packaging of the drugs alone strongly speaks to sales. It was reasonable for the jurors to believe most drug users are aware of the consequences of being convicted for sales and thus avoid carrying drugs in separate packages. Further, the five $20 bills could imply recent sales of $20 baggies. Overall, there was overwhelming evidence to support the jury's finding that Aguilera was guilty of carrying methamphetamine for sale. It is not reasonably probable any juror would have reached a different conclusion absent the prosecutor's comments.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.