Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 04WF3724, Dan McNerny, Judge.
Cara DeVito, under appointment of the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
A jury convicted Jerry Cleveland Coleman of possessing marijuana for sale. He contends the conviction must be reversed because the prosecutor failed to instruct a witness not to testify that bullets were found in proximity to the marijuana. He also contends the trial court violated his Fourth Amendment rights by ordering him to submit to DNA testing for database purposes. We reject these contentions and affirm the judgment.
On November 12, 2004, the Garden Grove police executed a search warrant at Coleman’s residence and found about 24 grams — slightly less than one ounce — of marijuana. They also found digital scales and an aerosol can with a false bottom that contained two large baggies. There was marijuana residue on the scales and the baggies, and when interviewed at the scene, Coleman admitted he had been selling marijuana for a couple of months. At trial, however, Coleman denied making this admission and said he has never sold marijuana. He claimed the marijuana found at his residence was for his own personal use.
I
Detective Ed Leiva testified he found bullets at Coleman’s house during the search. Although defense counsel was the one who elicited this testimony, Coleman claims the prosecutor was guilty of misconduct for failing to advise Leiva not to mention the bullets. The claim is not well taken.
The issue surfaced pretrial, when the prosecutor moved to admit evidence of the bullets. During the motion hearing, Leiva testified he found two bullets on a shelf in Coleman’s bedroom closet, about 10 feet from the marijuana, and a third bullet in another bedroom. Although no firearms were found in the residence, Leiva testified the bullets were one of several factors which led him to believe Coleman possessed the marijuana for purposes of sale, as opposed to personal use.
The trial court, however, ruled the bullet evidence was inadmissible. Relying on Evidence Code section 352, the judge reasoned, “I don’t find the probative value [of the evidence] to be particularly significant. I think the prejudice that the court would be concerned with is that the presence of the bullets has the potential to cause the jury to view the defendant with possibly some violent propensities and speculate as to where the bullets came from and why they were there.”
At that point, the prosecutor asked the court for “a moment to talk with my officers that found the bullets to make sure they don’t blurt it out on the stand since the court precluded it.” The trial court reminded the prosecutor to make sure the officers were also aware of a stipulation pertaining to the search warrant, and the prosecutor said she had already informed them about that. The court then discussed an unrelated issue before taking a recess.
During trial, the prosecutor signaled her intention to “revisit the issue of bullets.” However, she did not do so, and the issue did not resurface until defense counsel brought it up. She was cross-examining Leiva about an interview he did with Coleman at the police station when the following exchange occurred:
“Q. And what did you discuss with [Coleman at the station]?
“A. I believe it was further contraband that was found at the house.
“Q. And is this in your police report?
“A. I believe so, yes.
“Q. That there was further contraband found in the house?
“A. Yes, ma’am.
“Q. Okay. And what was that contraband?
“A. I found bullets.
“Q. Okay. [¶] . . . I’m going to object as prosecutorial misconduct at this point.
“The Court: Overruled.
“[The Prosecutor]: Thank you.
“The Court: That answer will remain. Ladies and gentlemen, do not infer by anything said in the objection that indicates that the People have engaged in misconduct. [] [¶] Ask your next question.
“Q. Okay. [¶] . . . So you had a discussion with him about bullets at the police station?
“A. Yes, ma’am.
“Q. Okay. And nothing about narcotics?
“A. No.
“Q. Okay. Was this interview recorded?
“A. No, it wasn’t.
“Q. Okay. And no one else was present for it?
“A. Correct.
“Q. Okay. And you had no weapons that matched any of the bullets that you had found?
“A. Correct.”
As part of his defense, Coleman testified he found the bullets in his backyard. However, he claims he never should have had to explain how he acquired the bullets because the prosecutor failed to advise Leiva not to mention them. He claims the prosecutor committed misconduct in this regard, but the record does not support this allegation.
“A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. [Citation.]” (People v. Warren (1988) 45 Cal.3d 471, 481-482; accord, People v. Earp (1999) 20 Cal.4th 826, 865.)
Assuming the prosecutor had reason to believe Leiva might mention the bullets in his testimony, there is insufficient proof in the record she neglected her professional obligations regarding this possibility. Coleman accuses her of flouting the trial court’s ruling about the bullets and failing to advise Leiva not to mention them. But there is absolutely nothing to indicate she actually did fail to do so except that Leiva, under persistent cross-examination, mentioned them.
Immediately after the court ruled against the prosecution on the bullet evidence, the prosecutor indicated her intention to inform Leiva about the ruling so he would not say anything about the bullets. The logical inference from this is that the prosecutor — as an officer of the court — did tell Leiva not to mention the bullets during his testimony. (See Evid. Code, § 664; People v. Sullivan (May 29, 2007, A109149) __ Cal.App.4th __ [absent contrary proof, counsel are presumed to have carried out their duties].)
This inference would be less tenable if Leiva had eagerly blurted out the bullet evidence during unrelated questioning in an apparent attempt to blacken Coleman’s character in front of the jury. But the circumstances of his disclosure lead to the opposite conclusion. When first asked about the contents of the stationhouse interview, Leiva studiously avoided any specific mention of the bullets, saying only that he discussed “further contraband” with Coleman. It was only after defense counsel pressed the issue and pointedly asked Leiva to identify this contraband that he identified it as bullets. In the absence of any evidence to the contrary, this indicates to us that Leiva was aware of, and tried to comply with, the court’s ruling, but due to defense counsel’s direct and repeated questioning on the subject, may have believed it was okay for him to mention the bullets. As far as we can determine, any error was not merely invited by defense counsel but forced. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [defense counsel invited alleged evidentiary error by admitting the challenged evidence in the first instance].)
But we need not hang our hat on the invited error doctrine. Suffice it to say, we are not persuaded of the accuracy of the premise of Coleman’s argument: That the prosecutor failed to warn Leiva to steer clear of the bullet evidence. The record needs to be clearer than it is in this case to establish misconduct by any attorney. A hearing could have made it clearer. A stipulation or offer of proof might have established it. But speculation cannot. We therefore reject Coleman’s claim of prosecutorial misconduct.
II
Coleman’s remaining argument is that the court violated his Fourth Amendment rights by ordering him to provide DNA samples for use in the state’s data bank program. (See Pen. Code, § 295 et seq.) However, he admits the courts have uniformly rejected the arguments he puts forth. Indeed, he concedes he “cannot disagree” with the cases cited by respondent on the issue, all of which have affirmed nonconsensual DNA gathering for database purposes. (See People v. Johnson (2006) 139 Cal.App.4th 1135; People v. Adams (2004) 115 Cal.App.4th 243; Alfaro v. Terhune (2002) 98 Cal.App.4th 492; People v. King (2000) 82 Cal.App.4th 1363.)
Neither can we. Because Coleman’s challenge to the court’s DNA order is merely designed to preserve the issue for further review, we reject it for the reasons explained in the above-cited cases.
The judgment is affirmed.
WE CONCUR: SILLS, P. J. ARONSON, J.