Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-080738-8.
Haerle, J.
I. INTRODUCTION
After a three-day jury trial, appellant was convicted of felony possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and misdemeanor driving on a revoked or suspended license (Veh. Code, § 14601.1). He appeals, claiming that, in her rebuttal argument, the prosecutor committed error by arguing to the jury that no evidence had been presented contradicting the prosecution’s evidence that appellant was the person who had been found to be in possession of heroin while driving a car. He contends that such an argument constituted error under Griffin v. California (1965) 380 U.S. 609 (Griffin). We reject this contention and affirm the judgment of conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On the morning of December 29, 2007, two Contra Costa County Deputy Sheriffs, Deputies Patchin and Ellison, were patrolling the North Richmond area. Both were part of a sheriff’s team known as the “J-team” which was responsible for investigating narcotics offenses. They were driving behind a blue Saturn when it failed to stop at a stop sign. The officers checked, and immediately discovered that the car’s registration had expired; they conducted a traffic stop and found a person they later identified as appellant (and hereafter referred to as such) to be the sole occupant of the Saturn.
Deputy Ellison approached appellant on the driver’s side of the Saturn and asked appellant for his driver’s license, car registration and proof of insurance. Appellant did not have a driver’s license or any other form of personal identification, but then opened the center console of the Saturn and took out the registration papers for the car. As he did so, he also picked up a clear or orange cylinder from the same console; Deputy Patchin, who was watching from the passenger side of the car, saw appellant try to hide the cylinder from Deputy Ellison’s view and alerted the latter to that fact. Ellison promptly asked appellant what was in the cylinder, but appellant quickly twisted off its cap and poured the contents down the inside of the driver’s side door, spilling some on his pants. (At the subsequent trial, photographs of the cylinder and the substance on both the car door and appellant’s pants were admitted into evidence.)
Deputy Ellison immediately recognized the substance poured from the cylinder as tar heroin because of its “strong pungent odor of vinegar” and the fact that it was a “brownish powdery substance” and the fact that “it can be very sticky.” Deputy Patchin had the same reaction for the same reasons, i.e., smell and substance, and immediately scooped up enough of the substance from the car door to conduct an in-field test of it. The test was positive for “heroin or opium.”
Appellant was arrested for possession of heroin, and identified himself to the officers as Jason Cyrus. He waived his Miranda rights and agreed to speak to the deputies. He told them that the heroin he had just spilled was “a dime quantity... a $10 dime bag... of heroin within the cylinder.” Appellant admitted to the officers that he had been using such for approximately a year.
After his arrest, the deputies offered appellant a way to avoid being taken to and booked in jail for possession of heroin by helping them locate drug dealers in the area. Appellant accepted, because, according to Deputy Ellison, he “opted to do something for us, so to say—[¶] He was willing to work off his case.” To that end, both deputies stayed with appellant for “approximately one hour” and drove around with him, talking about “the ongoing narcotics activity occurring in the area of North Richmond.” More specifically, he pointed out to them places where drugs were sold and weapons kept. They later released appellant, apparently pursuant to Penal Code section 849, but not until their supervisor, a sergeant (unnamed in the record), had arrived on the scene and learned that the two deputies who had arrested appellant had confirmed his identity by using a computer in their patrol car to access one of three types of computerized identification systems available to them.
As defense counsel later emphasized at trial, the officers neither photographed the person they had arrested, tape-recorded him, took his fingerprints, asked him to sign any papers, or took any fingerprints off the cylinder he had emptied.
On June 24, 2008, an information was filed charging appellant with felony possession of heroin and misdemeanor driving on a suspended or revoked license, per the statutory citations above. A jury trial commenced on September 22.
All further dates noted are in 2008.
Both Deputies Patchin and Ellison testified to the foregoing effect, and also both identified him in court as the same person they had stopped the previous December. They noted that the time of that stop and arrest was mid-morning, and the area was clearly illuminated. Deputy Ellison testified that she remembered appellant because, during the initial traffic stop, she was less than a foot away from him, at the driver’s side of the car with the window down, and was thus “a hundred percent sure” that he was the same man they had arrested before, that she had been with him for “about an hour” during and after the car stop, when the deputies discussed appellant’s helping them with their narcotics investigation in the area. She also testified that “I usually have a good keen recollection of remembering facial features for some reason.”
Deputy Patchin was also “one hundred percent” certain that appellant was the same man they had stopped in the Saturn the previous December, because he had subsequently driven around the area with him and “based on that fairly extended conversation and driving around with him, I was able to recognize his face.”
Both deputies also testified that, before they released him, they had verified the picture of him on their computer in their sheriff’s car “did indeed match the person who was claiming to be Mr. Cyrus.”
The third prosecution witness at the trial, a criminologist, testified that the powder recovered from the Saturn had tested positive for heroin, and that the 0.16 grams of heroin tested was a useable amount.
Regarding the charged misdemeanor count, the parties stipulated on the record, and before the jury, that appellant’s driver’s license had been suspended in 1999, that he had been notified of that fact before the December 2007 stop, and that he had never, thereafter, renewed his license.
After the prosecution rested, appellant opted to present no evidence. The jury deliberated for less than 40 minutes on the third day of trial, and returned a verdict of guilty on both counts.
On November 14, the trial court placed appellant on two years probation.
Appellant filed a notice of appeal on November 21.
III. DISCUSSION
Appellant’s only claim on appeal is that the prosecutor committed Griffin error by noting twice in her rebuttal argument to the jury that no evidence contrary to that introduced by the prosecution regarding whether appellant was the person stopped and arrested in December 2007 had been adduced by the defense. We will cite the relevant law on that issue shortly, but initially it is important to note that, in both attorneys’ closing arguments, the central issue was whether appellant was the person in fact stopped in North Richmond in December 2007.
Thus, in her opening argument to the jury, the prosecutor noted that the only issue in the case very soon to be considered by that jury was “who was driving that vehicle.” She argued that it would be totally unreasonable to assume that “a Martian [came] down and... morphed himself into a likeness of Jason Cyrus, and that’s who they actually saw that day.” Appellant, she continued, had admitted to Deputy Patchin that his license had been suspended, and that he knew such. And, of course, the jury had already heard a stipulation from counsel that precisely this was true of the person—the appellant, of course—in court before them.
Defense counsel commenced her argument by noting several issues in the case that were not in dispute, and then stated: “There is one issue that is in dispute and that is the identity of [the] person that was involved.” She continued to press this point throughout her argument, noting that the deputies could not recall which data base on their in-car computer they had used, and that just because the stopped driver had given appellant’s name did not, in fact, mean he was in fact the person before them in the courtroom.
She then discussed the prosecution’s burden of proof and argued: “I want to finish by talking about some of the evidence that you don’t have, evidence that would help or if not, conclusively show identity.”
The prosecutor objected that defense counsel’s argument was improper because the “jury has been instructed to consider what evidence they do have.” The court overruled the objection as follows: “I think it’s permissible to argue types of evidence that might have been produced, if the evidence was available. [¶] Refer to the instruction, ladies and gentlemen, that I gave you before that neither side has the obligation to produce all witnesses or evidence that might be available. [¶] The question is whether or not the evidence before you is sufficient for guilt beyond a reasonable doubt. [¶] This is an appropriate argument.”
After this ruling, defense counsel then argued that the two deputies had failed to provide three crucial pieces of potential evidence. First, the deputies failed to photograph the driver’s face although they photographed his pants covered with heroin powder. Next, the deputies failed to have the driver sign any document regarding the agreement to work for the police, they never booked him into jail, and thus they never took a booking photograph. Third, the criminologist failed to take fingerprints from the cylinder. Defense counsel concluded her argument thusly: “Ladies and gentlemen, the person in the car is not Mr. Cyrus. There is no reliable evidence that you have that it was him. And it’s based on that that I am asking you to find him not guilty of both counts.”
In her rebuttal argument, the prosecutor responded: “Now with respect to the items that defense counsel wrote on the board over there. Things you might wish you had. [¶] Well, I do wish Deputy Patchin took a picture of the defendant’s face that day. Yes. It would have made this a lot easier, but he didn’t. Does that matter? Not really. [¶] Because what do you have here, you had Deputy Patchin who told you what he saw. It’s not as if we have no evidence about who the driver of that vehicle was. And what is foremost, one thing she [defense counsel] added to that list, do you wish—were you there to see it? [¶] Now, if you had seen it, you would know what you saw, and you would be comfortable and confident that you saw the person who was driving that car. [¶] Well, you have two people who were there. And who did see the event of December 29th.
“Now, I want to go through—I hope I will hit every point that [defense counsel] made and respond to the ID issues. [¶] Now, first, [defense counsel] said the fact that the driver gave the name Jason Cyrus is not important. I have to disagree. It’s not as if this person who was driving the vehicle gave the name Joe Smith or Mike Jones or something more generic, more commonplace. Jason Cyrus. Not a typical name. Kind of unusual that he would randomly, our of the blue, pick that name.
“It’s true the driver never produced any physical form of photo identification, but I don’t think that is dispositive. That doesn’t matter. There is no evidence contradicting that the person in the car who identified [himself] as Jason Cyrus was Jason Cyrus....” (Italics added.)
Defense counsel promptly objected to that specific argument, but the court overruled her objection.
On rebuttal, the prosecutor argued that, in addition to appellant’s admission that his name was Jason Cyrus, there was evidence of the deputies in-court identifications, and evidence that both deputies were “one hundred percent” certain of their identifications because they spent nearly an hour talking to appellant and driving him around North Richmond. She said: “In this case, [the officers] identified Jason Cyrus with a photograph. Now, I will submit they can’t remember which data base that they used. It doesn’t matter. They had to use one of the tools available to them in order to actually release him at the scene and that’s what you have heard. [¶] There is no dispute. There is no contrary evidence that someone else was driving the car. That some random individual happened to call himself Jason Cyrus on this day and time and then the officers remembered the driver as the same person. It just doesn’t make any sense. [¶] So I ask you to go back into that jury deliberation room and consider the evidence and come back with a verdict of guilty....” (Italics added.)
Defense counsel did not object at this point. However, after the jury retired to deliberate, defense counsel made a record of the one objection she made during closing argument: “My objection was based on what I believe is a reference to Mr. Cyrus not testifying in the case by their... argument about there being no evidence that he was not the person in the car. I think that what that called for was his statement that he was not in the car. Therefore, I objected to that.”
The court disagreed and ruled: “I think that most vague sort of way that is true, but... the [prosecutor’s] comments were not so specific as to highlight to the jurors that your client had failed to testify, but in addition to when you [defense counsel] make an affirmative argument for the defendant that there is evidence that is not in the record that plausibly might have been in the record or what [the prosecutor] should have asked for or could have insisted upon as far as what the police should have done... then I believe that opens up a rebuttal argument... insofar as it pointed out the fact that there were things that [defense counsel] argues that weren’t there, that there was now affirmative evidence that the defendant wasn’t the person that, for example... I could think of three or four things that could have been offered other then the defendant’s testimony that could have fit the same description... [another] person... came [in]... I’m the person, and I could think of... possible circumstances, DMV records, that showed that there were a number of Jason Cyruses that are licensed in the State of California. That there is a possibility that this other Jason Cyrus was stopped.... It’s not the same thing [as saying your client did not testify].”
In his brief to us, appellant relies upon the three sentences italicized above from the prosecutor’s rebuttal argument as constituting Griffin error.
Our own Supreme Court has recently summarized the rule laid down in Griffin thusly: “Griffin... protects a defendant’s right not to have the prosecutor comment on his failure to testify. A prosecutor is permitted, however, to comment on a defendant’s failure to introduce material evidence or call logical witnesses. [Citation.] By directing the jury’s attention to the fact defendant never presented evidence that he was somewhere else when the crime was committed, the prosecutor did no more than emphasize defendant’s failure to present material evidence. He did not capitalize on the fact defendant failed to testify. Accordingly, there was no Griffin error.” (People v. Brown (2003) 31 Cal.4th 518, 554; see also People v. Hughes (2002) 27 Cal.4th 287, 371-375 (Hughes); People v. Bradford (1997) 15 Cal.4th 1229, 1338-1340 (Bradford).)
As noted above, the trial court denied both of appellant’s objections to the key portions (again, italicized above) of the prosecution’s closing rebuttal argument. We agree with its ruling, based on the specific language used by our Supreme Court in the several cases just cited, and even earlier cases. As the court noted in the passage from Brown just quoted, what the prosecutor was doing here was simply emphasizing “defendant’s failure to present material evidence.” The court has made the same point many times before. Thus, in People v. Jackson (1980) 28 Cal.3d 264, 304, it stated that the Griffin rule “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” (See also People v. Hovey (1988) 44 Cal.3d 543, 572.)
In Hughes, a Monterey County murder case, the court considered some very specific prosecutorial comments, and then rejected the appellant’s claim that they constituted Griffin error; it wrote: “Defendant first asserts that the prosecution made various references to the absence of defense evidence concerning events that took place inside the victim’s apartment, and he claims that because defendant was the only person who could have provided the information that the prosecution asserted was missing, the prosecutor’s comments improperly highlighted defendant’s failure to testify. As an example, defendant quotes the following comment by the prosecutor: ‘Where is there a single piece of evidence that [defendant] somehow killed—something snapped because they were surprised at [seeing] each other [in the apartment]? Where is there evidence of that? Where is there a witness to testify to that? Where is there a piece of physical evidence to suggest that?’ (Italics added.) Defendant asserts that this constituted the ‘functional equivalent’ of a comment characterizing the prosecution’s case as ‘uncontradicted’ when only the testimony of the defendant could have contradicted it. On the record before us, we cannot agree. Under the defense theory of the case, defendant was in an unconscious state during the killing, and hence could not be expected to have provided answers to the prosecutor’s questions, even had he taken the witness stand. In this setting, we view the challenged questions posed in the prosecutor’s closing argument, and other questions and statements like them, as nothing more than proper fair comment on the state of the evidence.” (Hughes, supra, 27 Cal.4th at p.372-373.)
The court then summarized its ruling as follows: “[W]e read the prosecutor’s statements as a comment on the general state of the evidence, rather than an assertion that the prosecution’s evidence was not contradicted by defendant personally.” (Hughes, supra, 27 Cal.4th at p. 373.)
Likewise, in Bradford, the court wrote: “In the present case, there were brief comments by the prosecution during closing argument noting the absence of evidence contradicting what was produced by the prosecution on several points, and the failure of the defense to introduce material evidence or any alibi witnesses. These comments, however, cannot fairly be interpreted as referring to defendant’s failure to testify. Neither the general comment directed to the lack of defense evidence or testimony, nor the more particularized comments regarding the possibly bloodstained mat, the coroner’s opinion, or the absence of alibi for a particular time period, would have required defendant to take the stand. Contrary to defendant’s assertion, the prosecutor’s comment that ‘there is no evidence to the contrary,’ in arguing the victims had been killed for pleasure, does not constitute Griffin error within the meaning of our decision in People v. Murtishaw [1981] 29 Cal.3d 733, 757-758, and footnotes 19-20, and similar cases. The prosecutor did not allude to the lack of refutation or denial by the sole remaining witness, defendant, but rather to the lack of evidence, which might have been presented in the form of physical evidence or testimony other than that of defendant.” (Bradford, supra, 15 Cal.4th at pp. 1339-1340.)
As the trial court in this case correctly observed, such was also the case here. The court pointed out in overruling the second objection made by defense counsel: “[F]or example... I could think of three or four things that could have been offered other than the defendant’s testimony that could have fit the same description.... I could think of... possible circumstances, DMV records, that showed that there were a number of Jason Cyruses that are licensed in the State of California. That there is a possibility that this other Jason Cyrus was stopped.... [It’s not the same thing] as saying your client didn’t testify. It’s not the same thing.”
We can and will expand on the trial court’s point. Here are a number of items of evidence which, without calling appellant to the stand, defense counsel theoretically could have produced—assuming, of course, that her client was not the person arrested in North Richmond in December 2007:
1. Testimony from someone that appellant was someplace other than in a car in North Richmond on December 29, 2007;
2. Testimony from someone that appellant never owned or drove a blue Saturn in 2007;
3. Testimony from someone that, according to DMV records, there are X number of men named Jason Cyrus licensed, or previously licensed, to drive a vehicle in California;
4. Similarly, according to the DMV photographs taken of these men, Y number of them are, racially similar to appellant, i.e., African American;
5. According to the DMV’s records, Z number of these African-American men once licensed to drive in California had their licenses suspended in 1999, and those licenses remained suspended through, at least, December 29, 2007.
Shortly stated, the record in this case does not even remotely indicate any Griffin error.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Kline, P.J., Lambden, J.