Opinion
B199152
4-15-2008
THE PEOPLE, Plaintiff and Respondent, v. ALEX R. COLON, Defendant and Appellant.
Rebecca F. Thornton, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Alex R. Colon appeals from the judgment entered following a jury trial in which he was convicted of selling a controlled substance in violation of Health and Safety Code section 11352, subdivision (a) and a court trial in which he was found to have suffered a prior serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b) and previously been convicted of possessing a controlled substance for sale (Health & Saf. Code, § 11351) within the meaning of Health and Safety Code section 11370.2, subdivision (a). He was sentenced to prison for a total of 11 years and contends prosecutorial misconduct during closing argument denied him his rights under the Fifth Amendment to the United States Constitution. For reasons stated in the opinion, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On January 2, 2007, at approximately 4:20 p.m., Los Angeles Police Detective Charles Baley was on duty at the location of Gladys Avenue south of Sixth Street in Los Angeles monitoring the area for narcotics activity. He was parked in an undercover police vehicle on the west curb of Gladys Avenue when he saw appellant sitting on the sidewalk on top of blankets and clothes. Appellant was next to a woman, and they were facing southbound. Detective Baley was approximately 25 to 30 feet away, directly south of them looking north towards appellant.
Detective Baley used binoculars to enhance his observations. The woman sitting next to appellant was later identified as Louisa Gonzalez.
Detective Baley saw an individual, later identified as Christian Mendrano, walk up to appellant and stand next to him, holding an unknown quantity of folded money in his hand. Mr. Mendrano talked briefly with appellant and then extended his right hand and handed the money to him. Appellant accepted the money and placed it into his right front pants pocket. He opened his cupped left hand, revealing two off-white solids that resembled cocaine base, and tilted his hand, pouring the items into Mr. Mendranos right palm. Mr. Mendrano looked down at the items in his palm, placed his right hand into the right hand pocket of his sweatshirt and walked away northbound. Appellant looked up and down the sidewalk a couple of times, pulled out the folded money from his pocket and handed it to Ms. Gonzalez, who was sitting next to him.
Detective Baley broadcast Mr. Mendranos description and assisting officers stopped him on the southwest corner of Gladys Avenue and Sixth Street. From the time Mr. Mendrano received the cocaine base to the time he was detained, no more than two minutes had elapsed and he had walked approximately 100 to 150 feet. He passed other people but never stopped, talked to or exchanged anything with anyone else. Two off-white solids resembling cocaine base and a glass cocaine pipe were recovered from Mr. Mendrano.
The off-white solids were later analyzed and determined to contain cocaine base.
Approximately one minute after Mr. Mendrano was detained, other officers detained appellant and Ms. Gonzalez. Officers recovered $162 from Ms. Gonzalez and $19 from appellant.
DISCUSSION
Appellant contends the prosecutor committed misconduct during closing argument by commenting that an inference of guilt should be drawn from the fact that the prosecutions evidence was undisputed and that the presumption of innocence was wrong.
During closing argument, the prosecutor stated, "The defendant is indeed entitled to a presumption of innocence. That presumption only stands unless and until the elements of the crime have been established. And in this case, the evidence is undisputed. Each of the elements of the crime has been established. [¶] The presumption of innocence is now wrong. Once we establish the elements of the crime, there is no presumption of innocence because the evidence presented at trial — and again, the only evidence presented at trial, the evidence is undisputed. Its undisputed that the defendant handed over rock cocaine to the buyer. Its undisputed . . . ."
Following defendants objection that the defendant had a right not to testify, the court instructed the jury, "Well, again, ladies and gentlemen, as I indicated previously, the defendant has an absolute right not to testify and to rely on the state of the evidence. So do not take what the prosecutor is indicating in stating her argument that somehow the defendant has any obligation whatsoever to present any evidence."
The prosecution continued, "The evidence is undisputed that the defendant knew he had rock cocaine in his palm. The evidence presented at this trial is undisputed that the defendant knew he had a controlled substance. And the evidence presented at this trial is undisputed that the controlled substance that the defendant handed over to the buyer was indeed cocaine base. The evidence is undisputed."
The defense stated his continued objection. The court responded, "As I indicated before to the jurors, first of all, if any of the attorneys state the law to you differently than I stated it to you, you have to rely on what my statement of the law is. [¶] Number two, as I indicated before, the defendant has an absolute right not to testify and an absolute right not to present any evidence and to rely on the state of the evidence, and its the Peoples burden to prove each element of the crime beyond a reasonable doubt."
The prosecution continued, "Now, lets talk about the defense case, and lets discuss whether the defense case negates any of these elements. It doesnt." Appellants objection that the argument was "burden-shifting" was overruled and the prosecution continued arguing that the defense version of the case had not negated any elements. Appellants objection that it was "burden shifting" and that "[t]he defense doesnt have to negate anything" was overruled.
When the prosecution again argued, "The evidence is undisputed in this case," the court overruled the defense objection and stated, "As I indicated, counsel is indicating that the evidence is undisputed. The court is again reminding the jury that its the Peoples burden to prove the defendant guilty beyond a reasonable doubt, and the defendant does not have to put on any evidence or testimony."
"`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] [Citation.] `[W]hen the claim focuses upon comments made by the prosecutor 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. [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 960.)
"In Griffin v. California (1965) 380 U.S. 609, the United States Supreme Court held that the prosecution may not comment upon a defendants failure to testify in his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. [Citations.] Nonetheless . . . a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. [Citations.]" (People v.Bradford (1997) 15 Cal.4th 1229, 1339.)
Here the prosecutions remarks did not constitute Griffin error. The comments did not refer to appellants failure to testify but rather were comments on the state of the evidence. There were persons other than appellant who were witnesses who could have been called to testify but were not. (See People v. Hughes (2002) 27 Cal.4th 287, 372.) Further, the prosecutors comments regarding the presumption of innocence essentially were a restatement of the law as reflected in Penal Code section 1096 and not misconduct. (See People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190.)
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P.J.
MANELLA, J.