Opinion
G053297
09-08-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER MICHAEL CROUCHER, Defendant and Appellant.
Kenall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15WF0928) OPINION Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed. Kenall Dawson Wasley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Christopher Michael Croucher of possession of methamphetamine for sale. (Pen. Code, § 11378.) The trial court sentenced him to the middle term of two years in state prison.
Defendant contends he received ineffective assistance because his counsel failed to object to the prosecutor's misstatements of law during closing argument. We conclude defendant's ineffective assistance claim fails because he cannot demonstrate prejudice.
I
FACTS
Around 9:40 p.m. one night, police officer Benjamin Jaipream went to a house where Tristen Padel was renting a room. Padel, defendant, defendant's girlfriend, and several others, were present. Jaipream searched defendant's person and found 25.11 grams of crystal methamphetamine, two cell phones, an i-Pod Touch, a syringe, and $45 dollars. The iPod Touch was searched but nothing pertinent was found on the drive and one of the cell phones did not have subscriber identity module (SIM) card.
After his arrest, defendant gave a statement to Jaipream. Defendant said he was 29 years old and had been a "dope fiend" since the age of 22. He admitted smoking methamphetamine that evening and sharing it with others at the house. Defendant stated he did not sell the methamphetamine and just "gave it away" so that those at the house, some of whom he did not know or barely met, could get high and have a good time. He believed he had "like 20 grams or something" in the bag in his pocket.
A redacted version of the recorded statement was played for the jury.
Defendant said he used "[a] little bit every day," "[l]ike a quarter gram" "every couple hours or so." Later, he stated he "slammed" the methamphetamine, meaning he would use a "rig" (a hypodermic syringe) to inject it. Because his girlfriend was pregnant with his baby, she did not smoke methamphetamine and defendant was trying to use less. Defendant would maybe "take like one hit just so it looks good" or "if [he] slam[med], in the morning, [he was] cool like all day because [he] just started slamming it." Defendant did not want his girlfriend to find out about the rig in his pocket. Although his girlfriend knew he smoked methamphetamine, defendant said she would not want him slamming it and would probably leave him if she found out. So he would slam the methamphetamine when his girlfriend was not around, such as in the mornings before she woke up, and then he would "be cool all day."
Defendant bought the methamphetamine earlier that day for about $200.00. He did not work and got his money from his parents. Defendant acknowledged he had bought a large amount but said "[w]hen you use a lot" "[y]ou get it cheaper the more you get." Nevertheless, he "smoke[d] out" others at the house, meaning he gave some of the methamphetamine free to other people at the house, including those he did not know.
Jaipream opined defendant possessed methamphetamine for sale based on the amount defendant had on his person on the day of his arrest, defendant's lack of a job, and the $45 found in defendant's pocket. In Jaipream's opinion, it was possible but not probable that a heavy user would purchase nearly an ounce of methamphetamine for personal use only. During his 11 years as a police officer, Jaipream has never spoken with anyone who possessed that much for personal use.
According to Jaipream, methamphetamine is a valuable commodity or "form of currency" for which people usually pay cash but will trade for services, such as sex, cell phones, televisions, and speakers. Methamphetamine can also be "fronted"; for example, "[i]f I were the drug dealer and I dealt with somebody on a normal basis pretty often and I trusted him, I could . . . give him up front an amount of narcotics knowing that he would pay me back later for it."
Retired police officer Joseph Klein testified as an expert for the defense. Before becoming a private consultant, Klein had been a police officer for 29 years, during which he worked undercover as a narcotics detective and four years as the narcotics bureau commander. In Klein's opinion, based on his review of the police reports, the preliminary hearing transcript, the drug report, and a transcript of defendant's statement, defendant did not possess the methamphetamine for sale. Kline opined that defendant's statement was "disorganized and scattered," which Klein said was consistent with someone under the influence of drugs. Klein noted defendant was also inconsistent in that he said the methamphetamine was for personal use, and yet he admitted to sharing it.
Klein did not listen to the audio recording of defendant's statement or view the photographs. --------
Klein testified the possession of 25.11 grams does not automatically mean the person possesses the methamphetamine for sale, as he has encountered individuals who possessed that amount for personal use. Additionally, Klein continued, users commonly buy in bulk because it is cheaper that way and it cuts down the number of times they have to go out on the street and risk arrest, injury, or being scammed. Klein illustrated: "[S]o if I know that I will use five grams a day, I'm going to try to at least have that supply available for a couple of days if I have the money and sources to do it." Klein acknowledged, however, that 20 grams would be a lot for a person who used only about one quarter of a gram per day.
In a hypothetical situation similar to defendant's, Klein opined the methamphetamine "definitely . . . could be possessed for the purpose of sales, but it could also be possessed for personal use." He believed the facts were insufficient for him to say it was possessed for purpose of sale.
Klein explained that individuals sometimes share their methamphetamine or smoke it with others without expecting money or something else in exchange: "[T]he drug culture is . . . a completely different world. Some users are very tight on their drugs . . . but the culture is if I have a little meth, these are my close friends, I'm going to share some with you. I don't expect money, but I would expect next time I don't have anything and you have a big bag, share it with me."
II
DISCUSSION
Defendant contends he received ineffective assistance because his counsel did not object when the prosecutor allegedly committed misconduct during closing argument by misstating the definition of "sell" in the following four statements:
"The definition of selling is in the instruction itself. It is exchanging methamphetamine for money, services or anything of value. Anything of value. Not any tangible thing of value, anything of value. Favors, services, goods or other non-cash benefits. There is not even a requirement.
"We know what it was that he was getting in exchange for meth. Just was there a benefit[?] Did he expect a benefit[?] Both experts agree - well, I'm sure this was not intentionally, but both experts agreed there was an expectation of some sort of benefit.
"You heard the defense expert in his last statement that [defense counsel] asked him, he said, yeah, if I have a big bag I would give it to my friends with the expectation that they would bump me later if I ran out, right? That's a benefit. That is a value. That is called fronting. That is fronting methamphetamine. I will front it to you, and when I run out if you have some you will give it to me.
"That is a benefit. That is sales. That's what's going on here."
According to defendant, the prosecutor misstated the law in advocating that a "potential future benefit of sharing . . . transformed the gift into a sale. . . . This argument ignores the requirement that a sale necessit[ates] some type of knowing exchange. . . . [¶] This misstatement of the law was then compounded by the prosecutor arguing this concept of sharing fell within the definition of 'fronting,' which it clearly does not."
Defendant asserts his counsel was ineffective because counsel did not object to the prosecutor's statements, which ordinarily forfeits appellate review of his prosecutorial misconduct claim. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1241, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) To prevail on a claim of ineffective assistance, a defendant must "establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 333.) "[P]rejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (Ibid.) "[W]hen considering a claim of ineffective assistance of counsel, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.' [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Here, even assuming the prosecutor misstated the law, we reject defendant's ineffective assistance of counsel claim because he failed to demonstrate a reasonable probability the outcome of his trial would have been different absent that error. As defendant acknowledges, the trial court properly instructed the jury with CALCRIM No. 2302 that "Selling . . . means exchanging methamphetamine for money, services or anything of value." Additionally, the court instructed the jury with CALCRIM No. 200, which provides in pertinent part that, "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." "The jury is presumed to have followed the trial court's instructions in the absence of any indication it was unwilling or unable to do so." [Citations.]" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196-197.)
Defendant argues that the presumption the jury followed the court's instructions was rebutted by the fact that after about 80 minutes of deliberating, the jury submitted the following question: "Is the definition of 'intent to sell' includes 'fronting' your friends and later they share the meth with you?" The court responded about an hour and 15 minutes later, after consulting with the parties, by asking the jury to clarify its query. Rather than clarify its question or wait for a response, the jury reached a verdict about 20 minutes later. Before accepting the verdict, the court asked the jurors if they needed a response to its question. The foreperson stated they did not.
According to defendant, the jury's question "goes directly to the prosecutor's misstatement of the definition of 'sales' and expanding that incorrect definition to fit within the boundaries of 'fronting[,' and] demonstrates that at least one juror was not clear on the definition of sales." But the jury overcame any uncertainty on its own without responding to the court's request for it to clarify its question. The record contains no indication that in doing so, the jury was unwilling or unable to follow the court's instructions. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 196.) As such, we must presume the jury followed the court's directive to follow its instructions, not the attorneys' comments on the law, to the extent there was a conflict. (People v. Gray (2005) 37 Cal.4th 168, 217; People v. Najera (2006) 138 Cal.App.4th 212, 224.) It would be speculative, at best, to assume the jurors based their verdict on the prosecutor's fronting argument. Prejudice must be proved "as a 'demonstrable reality,' not simply speculation." (People v. Williams (1988) 44 Cal.3d 883, 937.) Defendant has not carried his burden in this regard.
Moreover, even had there been a timely objection, the court likely would have given a curative admonition reminding jurors to follow its instructions and not the attorneys' arguments in the event of a conflict. Defendant does not suggest this would have been ineffective to remedy any perceived harm. (See People v. Tate (2010) 49 Cal.4th 635, 693 [curative admonition was adequate to cure harm from misconduct].) Indeed, the prosecutor reminded the jury of this obligation during rebuttal by stating, "What we say in our closing arguments, as the judge instructed you, is not evidence. It's also not the law. What the judge instructs you is the law. If you think anything we said disagrees with what the judge is about to instruct you on or has instructed you on, you go with the judge."
Under the circumstances we find in this record, we cannot conclude defendant was prejudiced by anything the prosecutor argued.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.