Opinion
B224775
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRELL BLUE, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA351105)
APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Jerrell Blue (Blue) appeals from the judgment entered following his conviction for sale or transportation of marijuana and possession of marijuana for sale. (Health & Saf. Code, §§ 11359, 11360, subd. (a).) Blue contends that his conviction must be reversed because during trial the prosecutor committed prejudicial misconduct by suggesting that Blue would receive a lenient sentence if convicted. We agree that the prosecutor's reference to punishment was improper. However, we find no prejudice to Blue because the trial court issued a curative instruction and because the evidence of Blue's guilt was so overwhelming that it is not reasonably likely that Blue would have obtained a more favorable result if the prosecutor had not made the improper statements. Thus, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
August 5, 2008
Blue came to the attention of the Los Angeles Police Department when Detective Roger Gilbert sent Randy Morris, a convicted felon and regular informant, to buy narcotics at the "The Cottage Bar," a bar on Pico Boulevard near downtown Los Angeles. On August 5, 2008, Detective Gilbert met Morris on a residential street, and Morris was searched for contraband, given two $20 bills, and equipped with a body wire as well as an audio-visual recording device.
Detective Robert Quezada observed Morris ride his bicycle to the Cottage Bar and go inside. After a few minutes, he came back out and briefly went into a neighboring business, the Oki Dog Restaurant, speaking en route with three or four other people, at least two of whom appeared to be drug dealers. He then returned to the Cottage Bar, and according to a transcript of a videotaped encounter inside the bar, had a brief conversation with Blue, asking him, "You got some?" Blue responded, "Yea. Go in the bathroom." As Morris went into the bathroom, he relayed for the benefit of the police listening on the wire that someone was selling "weed" in the bar and described the person. Blue then followed him into the bathroom. Morris asked him, "What they call you man?" Blue responded, "They call me Blue." Then Blue said, "Check it out, all I do is $25 so you'll owe me $5." Morris then asked him for his number, but Blue responded "You just hit me in here. . . . I come in here. I sit in here." After leaving the bar, Morris returned to the meeting place and handed Detective Gilbert a bag of what was later confirmed to be marijuana.
At trial, the prosecution played the video of the encounter in the bar and introduced into evidence the transcript of the audiotaped recording. The videotape shows no display of the bag of marijuana or currency.
August 18, 2008
On August 18, 2008, Detective Gilbert met Morris on the same residential street as on August 5. As before, he was searched for contraband and provided two $20 bills.
Morris entered the Cottage Bar and found Blue there. According to the transcript of the videotaped encounter, Blue asked Morris for the $5 Morris owed him. Morris said he was willing to spend $40. Morris said he had dealt with another man a few times when Blue was not there, and Blue responded, "And it ain't as good as mine, huh?" The video of the transaction was played for the jury, and the prosecution also presented a still shot from the video, in which two $20 bills could be seen in Morris' hand; another still shot revealed a small baggie near Blue's mouth. Morris asked if he could come to Blue's house next time "and get it," but Blue told him he would meet him at the bar instead.
When Morris returned to the meeting spot shortly afterwards, he handed Detective Gilbert a bag containing what was later confirmed to be marijuana.
Morris was paid $300 for his services on August 5 and August 18, 2008, and has received more than $32,000 over his career as an informant.
July 14, 2009
On July 14, 2009, Officer Allan Rabina and Detective Quezada observed Blue come out of his residence and enter the passenger side of a car. Traveling in separate vehicles, Officer Rabina and Detective Quezada followed the car containing Blue for a few blocks as it drove eastbound on Pico Boulevard, in the direction of the Cottage Bar, before Officer Rabina stopped the vehicle and arrested Blue on an outstanding felony warrant for selling narcotics. Blue was found in possession of seven Ziploc bags each containing approximately one gram of what was later confirmed to be marijuana. No smoking paraphernalia was found on his person; the vehicle was not searched.
At trial, Detective Gilbert, an expert in narcotics sales, testified that in his opinion, a person found with seven individual baggies, each containing approximately one gram of marijuana, who had no drug paraphernalia on his person, and who had just left his residence, possessed the marijuana for sale. He acknowledged that, given the small total amount of marijuana, it could have been possessed for personal use.
Procedural History
The Los Angeles County District Attorney filed an amended information charging Blue with three counts of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a) (counts 1-3)), and one count of possession of marijuana for sale (§ 11359 (count 4)). As to all counts, it was alleged that Blue had served a prior prison term. (Pen. Code, § 667.5, subd. (b).) Blue waived his right to a jury trial on the prior. During trial, the parties stipulated that the marijuana in count 3 was less than 10 grams, and thus the trial court amended the count to allege it as a misdemeanor rather than a felony.
At trial, during his closing argument, the prosecutor said the following: "I'll talk about the 900-pound elephant in the room. He [Blue] is in a wheelchair, all right? He is in a wheelchair. It makes him sympathetic. I understand that. There is no exception in the Penal Code for you can sell marijuana as long as you're in a wheelchair. Doesn't work that way.
It appears from the record that Blue suffers from multiple sclerosis. The evidence at trial showed that during the transactions at issue, Blue walked with a cane. At trial, however, he used a wheelchair.
"Really what we're talking about is, is he accountable versus his liability? Here's what I mean by that. The system works only when each part of the system does the correct thing. Your only job -- I mean, sole, only is to decide did he commit any or all of these four crimes? Your answer is either, 'Yes, he did,' or, 'No, he didn't.'
"Some of you undoubtedly will be concerned about, well, if I convict him, what's going to happen? That's all Judge Klein's decision. Not yours. He can decide probation; no time whatsoever. He can decide other things if he wants. His decision, not yours. And it's important that they be separate."
At this point, defense counsel objected, and in a sidebar conference argued that the prosecutor's statements violated the rule against mentioning punishment or the consequences of a conviction to the jury. Defense counsel requested that the court instruct the jury that "one of the possibilities besides probation is state prison" in order to "un-ring that bell," but the court refused. Instead, the court immediately instructed the jury as follows: "Ladies and gentlemen, I of course instructed you earlier during jury selection, maybe in the instructions, 'You are not to consider punishment.' There are a variety of options. I'm not going to go through what all those options are. So disregard any references to any choices for sentencing, all right?" The prosecutor then continued with his closing argument and made no further reference to Blue's potential punishment.
At the beginning of the trial, the court instructed the jurors that "[y]ou must reach your verdict without any consideration of punishment."
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At the conclusion of the trial, defense counsel moved for a mistrial based on the prosecutor's statement during closing arguments, but the trial court denied the motion on the ground that he had already issued a curative instruction to the jury. The following day, before the jury had begun deliberating, Blue's counsel requested again that the court instruct the jury that it had the power to sentence Blue to state prison for up to eight years. Defense counsel asserted that it was disingenuous for the prosecutor to suggest to the jury that probation was an option for Blue given that the prosecutor's best offer in plea bargaining was two years' imprisonment. Counsel also requested that the court instruct the jury that Blue had been in jail for the past 10 months, in order to counteract the prosecutor's suggestion that Blue might be sentenced to no jail time at all. The court refused both requests, noting that it had admonished the jury after the prosecutor's improper comment and told the jury at the beginning of the case not to consider punishment. The court stated its belief that "the jury understands they're not to consider punishment . . . and that all options are on the table."
The jury found Blue guilty on all counts. Defense counsel moved for a new trial on the ground that the prosecutor had committed prejudicial misconduct by referencing punishment. The court denied the motion, finding that the prosecutor's comments did not rise to the level of misconduct, and even if they did, the timely admonition to the jury cured any prejudicial impact and, further, the evidence of Blue's guilt was overwhelming.
The court sentenced Blue to a total of three years' imprisonment: for count 1, two years plus one additional year for the prior prison allegation, and concurrent sentences for counts 2, 3 and 4.
DISCUSSION
It is well-established that a defendant's potential punishment, including the possibility of parole, is not a proper matter for jury consideration. (People v. Thomas (2011) 51 Cal.4th 449, 486 (Thomas))"Information regarding the consequences of a verdict is . . . irrelevant to the jury's task. . . . [P]roviding jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion. [Citations.]" (Shannon v. United States (1994) 512 U.S. 573, 579.)
During closing argument in Blue's trial, the prosecutor referenced the "elephant in the room" - Blue's confinement to a wheelchair - and noted that some jurors might be concerned about what would happen to him if he was convicted. The prosecutor then said that the court "can decide probation," "no time whatsoever," or "other things if he wants."
Blue argues that these statements suggested to jurors that Blue would receive a lenient punishment if convicted, and thus constituted prosecutorial misconduct necessitating reversal of his conviction. Respondent disagrees, arguing that the prosecutor's statements constituted a mere reminder to the jurors that, in deciding whether Blue was guilty, they should not consider the punishment that Blue would receive. (See People v. Kegler (1987) 197 Cal.App.3d 72, 91 [finding prosecutor's remarks that defendant could either get probation or spend time in custody "do not suggest a lenient disposition; rather they were references to the fact that in this case the matter of penalty or punishment was not to be considered by the jury"].)
When a prosecutor is alleged to have made improper comments before the jury, "'"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."'" (People v. Carter (2005) 36 Cal.4th 1215, 1263.) "'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements."'" (People v. Brown (2003) 31 Cal.4th 518, 553-554.) In this case, the prosecutor made the statements at issue directly after acknowledging that Blue was sympathetic because he was in a wheelchair and that jurors might be worried about what would happen to him. The jury reasonably could have concluded from the prosecutor's statements that they did not need to be concerned about returning a guilty verdict because Blue was likely to receive a light sentence if convicted. As such, the prosecutor's statements were improper.
Nonetheless, we find no prejudice. Immediately after the prosecutor's statements, the trial court reminded the jurors of its earlier instruction that they not consider potential punishment, and the court further instructed them to disregard any references to the choices for sentencing. Blue argues that the court's admonition failed to cure the harm because it did not inform the jury that imprisonment was an option. However, the trial court's simple reminder that the jury not consider punishment or sentencing options was sufficient to cure the harm from the prosecutor's isolated reference to Blue's possible punishment. (Thomas, supra, 51 Cal.4th at p. 487 [prosecutor's improper argument did not prejudice defendant where trial court gave curative admonition to jury].) We "presume[] that the jury followed the court's instruction not to consider penalty in determining the defendant's guilt." (Ibid.; see People v. Stevens (2007) 41 Cal.4th 182, 206.)
Moreover, it is not "'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Holt (1984) 37 Cal.3d 436, 458, superseded by statute on another ground.) The evidence against Blue on all counts was strong. After the transactions on both August 5 and August 18, 2008, the informant Morris turned over marijuana to the police. While Blue suggests that Morris could have obtained the marijuana from someone else because Morris interacted with other people in the vicinity of the bar, including other possible drug dealers, the transactions between Blue and Morris were sufficiently captured on video and audiotape to render this a far-fetched defense. Although the video of the August 5, 2008 encounter in the bar did not show the actual exchange of drugs for money, the audio recording demonstrates that after Morris asked Blue if he "got some," Blue said yes and told Morris to meet him in the bathroom of the bar, where Morris gave Blue $20, and Blue said Morris would owe him $5 because "all I do is $25." The evidence of a drug exchange was more than ample.
With respect to the August 18, 2008 transaction, the video revealed two $20 bills in Morris' hand and a small baggie near Blue's mouth, and the transcript of the audiotape fully supports the conclusion that a narcotics deal was taking place between the two men.
The evidence was also overwhelming with respect to the final count of possession of marijuana for sale based on the traffic stop and search conducted on July 14, 2009. Blue was apprehended with seven bags of marijuana, each containing approximately one gram. Presented with a hypothetical in which a person had just left his residence with marijuana packaged in seven baggies containing a similar amount of marijuana in each bag and with no paraphernalia, the prosecutor's expert reasonably opined that the marijuana was possessed for sale. The fact that he acknowledged the possibility that the total amount of marijuana was small enough to have been for personal use does not undermine the reasonable opinion that, given all the circumstances, the marijuana was possessed for sale. In sum, we conclude that the evidence against Blue was so strong that it is not reasonably likely that he would have received a more favorable result in the absence of the prosecutor's error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.