Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF014792 Albert J. Wojcik, Judge.
Lauren E. Eskenazi, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Daniel B. Rogers and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Richard Din, Jr., was found to have three “eightballs” of suspected methamphetamine in his sock, plus a “teener” of suspected methamphetamine in his pocket. Only one of these four items was tested and actually found to be methamphetamine. Based on expert testimony that the possession of three separate eightballs indicated an intent to sell, defendant was found guilty of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) He was also found guilty of falsely identifying himself to a police officer (Pen. Code, § 148.9, subd. (a)). Defendant admitted a prior drug-related conviction enhancement (Health & Saf. Code, § 11370.2, subd. (c)), two 1-year prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), and one “strike” prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). As a result, he was sentenced to a total of nine years in prison.
Defendant appeals, contending:
1. There was insufficient evidence that the eightballs in defendant’s sock were methamphetamine, and therefore there was insufficient evidence of the intent to sell.
2. The trial court erred in responding to one juror’s request to ask a question.
3. The trial court erred by failing to give a unanimity instruction.
4. The prosecutor committed misconduct in closing argument by misstating the burden of proof.
We will conclude that defendant has not shown any prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
On December 22, 2005, in a patdown search, Deputy Orlando Castaneda found methamphetamine on defendant’s person, in two separate locations. In defendant’s right sock, he found a cigarette box. Deputy Castaneda asked what was in the box; defendant said methamphetamine. Deputy Castaneda looked inside and found three baggies, each containing a white crystalline substance. The total weight of the baggies and their contents was 11.8 grams.
In addition, in defendant’s front pants pocket, Deputy Castaneda found a white crystalline substance wrapped in tissue. He did not weigh it, but he estimated that it weighed about four grams.
According to Deputy Castaneda, the substance in the tissue in defendant’s pocket looked different than the substance in the box in his sock: “It’s a little bit more pure, and the crystals that were inside the box are more dirtier, more not so high quality.”
According to an expert on methamphetamine, all four items appeared to be methamphetamine.
All four items were submitted to a criminalist; however, he tested only one of them, which he selected at random. The one he tested was in a baggie; he did not test “the rock.” The item he tested weighed 2.81 grams and did contain methamphetamine.
When asked why he did not test all four items, the criminalist explained: “First, it is the taxpayers’ money. It is expensive to examine these items. The second and the most important reason is that . . . this case was submitted under early disposition program. Under that program, we examine one item per defendant, per charge, per case.”
Defendant did not have any paraphernalia for using methamphetamine; he did not have any money. The police also searched the van in which he was living, but they found no paraphernalia; on the other hand, they also found no pay-owe sheets, baggies, scales, or weapons. The police did not test defendant to see if he was under the influence of methamphetamine.
Initially, defendant gave the Deputy Castaneda a false name, Manuel Armando Din. When he was booked, however, he gave his true name, Richard Din.
According to the methamphetamine expert, the fact that defendant was in possession of three eightballs, each packaged in a separate baggie, indicated that he had the intent to sell. The expert explained that an eightball is an eighth of an ounce, or about 3.5 grams, and retails for $100 to $150. Each of the three baggies found in defendant’s sock contained roughly an eightball of methamphetamine. Thus, they were worth a total of almost $500.
By contrast, a typical user takes 0.1 grams of methamphetamine at a time (although a long-time user might take up to 0.5 grams). A user “wouldn’t have more than a few doses” in his or her possession. Also, a user would have it all in a single baggie or other package.
The expert conceded, however, that the amount in the tissue was just a little more than a teener — i.e., a sixteenth of an ounce — and hence only about two doses.
II
DISCUSSION
A. The Sufficiency of the Evidence That the Substance Found in Defendant’s Sock Were Methamphetamine.
Defendant contends that there was insufficient evidence that the substance found in his sock was methamphetamine. He further contends that, because the evidence of the intent to sell methamphetamine was premised on the assumption that the substance in his sock was, in fact, methamphetamine, there was insufficient evidence of the intent to sell.
“Ordinarily the narcotic character of a substance is proved by a trained expert who has made a chemical analysis thereof.” (People v. Galfund (1968) 267 Cal.App.2d 317, 320.) In this case, such a chemical analysis was, in fact, performed; it simply was not performed on all of the suspected methamphetamine. Nevertheless, “the nature of a substance . . . may be proved . . . by evidence that the substance was a part of a larger quantity which was chemically analyzed [citations] . . . .” (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369.)
For example, in People v. Ihm (1966) 247 Cal.App.2d 388, an undercover officer was present when codefendant Muns took 17 capsules out of a package; 16 were full, and one was half full. Muns handed the half-full capsule to defendant Ihm, saying, “‘There’s a half a cap for you, man.’” Ihm put the capsule in his mouth, tasted it, then put it in his pocket. Eventually, the 16 capsules were tested and found to contain heroin; the 17th capsule could not be found. (Id. at p. 390.) Nevertheless, the court held that there was sufficient evidence that the 17th capsule contained heroin. It observed: “Identification by chemical analysis of a narcotic that has become unavailable at the time of trial is not required. [Citations.]” (Id. at p. 392.) “There was evidence that the capsule that passed into defendant’s possession had the same provenance as the other 16 capsules, all of which contained heroin. It was not unreasonable to infer, therefore, that the white powder in the 17th capsule likewise contained heroin. The process of reasoning is that by which the identity of a substance in gross is established by the identity of a sample. [Citations.]” (Ibid.)
Similarly, in People v. Stump (1970) 14 Cal.App.3d 440, an undercover officer bought three balloons, and the defendant bought two balloons, from the same supplier at the same time. The officer’s balloons were tested and found to contain heroin. The defendant, however, swallowed his balloons. (Id. at p. 443.) The appellate court held that there was sufficient evidence that the defendant’s balloons contained heroin: “‘All the balloons were taken from the same box and were similar in appearance. Further, [the supplier] “dumped” them into her hand after opening the box and made no apparent effort to differentiate among the balloons while distributing them. These facts strongly imply that the balloons received by [the officer] were taken at random from the group and thus constituted a representative sample. Since [the officer’s] sample contained heroin, it is reasonable to infer that defendant[’s] samples also contained heroin.’” (Id. at pp. 443-444.)
Defendant argues that the principles of Ihm and Stump are limited to cases in which a suspect substance was not tested because — and only because — it became unavailable. Admittedly, in Ihm, the court said, “Identification by chemical analysis of a narcotic that has become unavailable at the time of trial is not required. [Citations.]” (People v. Ihm, supra, 247 Cal.App.2d at p. 392, italics added.) However, it did not indicate that its reasoning would be inapplicable in other situations. Indeed, we cannot see how it could be. Certain evidence is either sufficient or insufficient. If it is sufficient, the fact that the People failed to produce other, stronger evidence may lead the jury to find that the evidence is not convincing; nevertheless, that evidence remains sufficient.
Defendant also argues that Ihm and Stump apply only if the untested substance is “from the same place of origin” as the tested substance. Defendant asserts that here, the tested substance was the substance in his pocket; that substance not only was found in a somewhat different place, but also looked somewhat different than the substance in the sock.
Alas, the record does not support defendant’s assertion. The criminalist testified that he received “four separate bindles . . ., three of them plastic, and one of them . . . tissue . . . .” He tested only “one of the four specimen[s].” In the following questioning (by defense counsel), he indicated that the substance that he tested was from one of the three plastic baggies:
“Q So in the four [sic] baggies that you have and that were submitted to you to be evaluated, you only tested one of the baggies; is that right?
“A Yes.
“Q So you can really only say in this case that there is just one baggy, and in that baggy there is approximately 2.81 grams of methamphetamine; is that right?
“A Yes.
“Q . . . [Y]ou didn’t evaluate or test the other two baggies; right?
“A Yes.
“Q And you can’t say for sure what is in the other two baggies; can you?
“A No, I can’t say anything about them.
“Q And you can’t say how much methamphetamine might be in those other two baggies; can you?
“A No.” (Italics added.)
Finally, the criminalist testified:
“Q What about the rock? Did you test that one rock in there?
“A No. I tested one, whatever is indicated in my notes.” (Italics added.)
Significantly, in closing argument, defense counsel argued that the prosecution had not proved possession for sale, only possession for personal use. Nevertheless, he conceded that the substance in defendant’s sock was methamphetamine. He also stated: “Quantity. How much can we really say for certain existed in this little baggy? We really only have clear-cut evidence . . . that we have one baggy containing 2.81 grams of methamphetamine.” Thus, he clearly understood — indeed, virtually conceded -- that the criminalist’s testimony meant that he had tested one of the baggies from defendant’s sock.
In support of his claim that the criminalist tested the substance in his pocket, defendant cites the following testimony by Deputy Castaneda:
“Q Now, the fourth item in there, what looks like a piece of tissue paper, do you recall what that is?
“A Yes. . . .
“Q Can you tell us what it is?
“A It’s crystallized rock. Later tested, it was methamphetamine.” (Italics added.)
Deputy Castaneda did not have personal knowledge as to what the criminalist tested or what the criminalist found. Although there was no objection to this testimony, it was simply not substantial evidence in the face of the criminalist’s own contradictory testimony. Deputy Castaneda may have simply leaped to the conclusion, based (not unreasonably) on the later testing, that all of the items found on defendant were methamphetamine. In any event, even assuming that Deputy Castaneda’s testimony was, in fact, substantial evidence on this point, the criminalist’s own testimony was at least equally substantial evidence that he actually tested one of the items in the sock.
Under Ihm and Stump, once the substance in one of the baggies in the sock was tested and found to be methamphetamine, it was a reasonable inference that the substances in the other two baggies were also methamphetamine. Accordingly, there was substantial evidence that defendant was in possession of three separately packaged eightballs. This in turn, was substantial evidence that he was in possession for purposes of sale.
B. The Trial Court’s Response to a Juror’s Request to Ask a Question.
Defendant contends that the trial court erred in responding to one juror’s request to ask a question.
1. Additional factual and procedural background.
After both sides had rested, there was this exchange:
“[THE COURT:] Okay. What we are going to do, we are going to take our recess. We are going to reconvene tomorrow morning at 9:30 a.m. You will hear from me initially with almost all the jury instructions being read at that point. You will then hear from [c]ounsel. And then it will be your matter . . . to start deliberating on.
“Yes, Juror No. 6?
“JUROR NO. 6: Am I allowed to ask the prosecutor a question?
“THE COURT: Oh, no. No. No. No.
“JUROR NO. 6: No? Okay.
“THE COURT: About this trial, you mean?
“JUROR NO. 6: Yes.
“THE COURT: No, you can’t. No, you can’t. No.
“JUROR NO. 6: Can I ask you?
“THE COURT: Well, no, not really, because I don’t know what you are going to ask, to be specific. And you do have all of the evidence. And if you do have a question regarding testimony, you get it right from the horse’s mouth. You get a readback.
“JUROR NO. 6: Okay.
“THE COURT: But as far as addressing a question to [c]ounsel, no. And the question that you have for [c]ounsel, I’m going to request that you keep it to yourself, not tell the others about it, either. Okay?
“JUROR NO. 6: Okay.
“THE COURT: Okay.
“JUROR NO. 6: That’s a tough one.”
2. Analysis.
Defendant claims that the trial court’s response was erroneous in two distinct respects.
First, defendant asserts that “the trial court should have clarified whether Juror No. 6’s question was factually or legally based and explained that the jury decides facts while the judge explains the law. In addition, the trial court should have emphasized that there would be an opportunity for questions during deliberations and the proper procedure for submitting questions would be reviewed in the instructions the next day.”
Preliminarily, defendant’s trial counsel forfeited this contention by failing to raise it below. A claim that the trial court failed to respond adequately to a question from the jury must be raised at trial. (People v. Boyette (2002) 29 Cal.4th 381, 430; People v. Kageler (1973) 32 Cal.App.3d 738, 745-746.)
Separately and alternatively, the trial court had no duty to respond as defendant suggests. Penal Code section 1138, as relevant here, provides: “After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given . . . .” (Italics added.)
By contrast, we know of no authority (and certainly defendant cites none) that requires a trial court to respond to an individual juror’s question before the jury has retired for deliberation. Defendant argues that such a distinction is artificial and unreasonable. The trial court, however, has considerable discretion to control the proceedings during trial. (Pen. Code, § 1044.) Here, the trial court had just indicated that it was going to instruct the jury the next day. And, indeed, the next day, it did in fact instruct: “You have two duties to perform. First, you must determine what facts have been proved from the evidence received in the trial and not from any other source. . . . Second, you must apply the law that I state to you to the facts as you determine them, and in this way arrive at your verdict.” (CALJIC No. 1.00.) It further instructed: “During deliberation, any question or request you may have should be addressed to the Court on a form that will be provided.” (CALJIC No. 17.43.) In addition, it had previously told the jury: “If, in your deliberations, you have a question regarding the jury instructions, you could let us know and we could try to respond. We’ll give you a form, you fill out the form and you submit it to us.” These instructions conveyed all of the information that defendant now contends the trial court should have conveyed. The trial court had discretion to wait until the following day to convey it. Finally, even assuming the trial court erred by failing to give all this information immediately, in response to the juror’s question, we cannot see how the one-day delay could have prejudiced defendant.
Second, defendant asserts that the trial court erred by telling the juror to “keep [the question] to yourself” and “not [to] tell the others about it.” He argues that this prevented Juror No. 6 from participating fully in deliberations. Unlike defendant’s claim that the trial court failed to respond to the question, this is a claim that the trial court affirmatively misinstructed; hence, it is not waived by defense counsel’s failure to object. (Pen. Code, §§ 1259, 1469.)
“Challenges to the wording of jury instructions are resolved by determining whether there is a reasonable likelihood that the jury misapplied or misconstrued the instruction. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 848.) We do not believe there is any reasonable likelihood that Juror No. 6 understood the trial court to be precluding any appropriate discussion. The trial court simply told the juror not to discuss the question itself with the other jurors. It did not preclude any discussion of the subject matter of the question.
To illustrate: Defendant speculates that Juror No. 6 may have wanted to ask why the substance found in defendant’s sock was not tested. The trial court essentially told the juror that he (or she) could not ask the prosecutor or the trial court this. That would be legally correct. The trial court then essentially also told the juror not to tell the other jurors that she (or he) had wanted to ask this question. The juror’s desire to ask the question would not be relevant; hence, such an instruction would be legally correct and would not interfere unduly with deliberations. However, the trial court did not preclude Juror No. 6 from discussing with the other jurors the fact that the substance had not been tested No reasonable juror would have understood it to be doing so.
We do not mean to suggest that the trial court was required to respond the way it did. It had discretion to find out what the juror’s question was — either by talking to the juror at sidebar or in chambers, or by asking the juror to submit it in writing — before responding. Even assuming that the trial court would still have responded the same way, Juror No. 6 probably would have felt better about how he or she had been treated.
Nevertheless, we conclude that defendant has not shown that the trial court’s response to Juror No. 6’s question was error.
C. Failure to Give a Unanimity Instruction.
Defendant contends that, because there was evidence of two distinct stashes of drugs, the trial court erred by failing to give a unanimity instruction.
“A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses. [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 422-423.) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.]” (Ibid.)
We may assume, without deciding, that the evidence showed two discrete instances of the crime of possession of a controlled substance for sale. (See People v. Martin (1971) 17 Cal.App.3d 661, 673; but see People v. Schroeder (1968) 264 Cal.App.2d 217, 228 ; In re Johnson (1966) 65 Cal.2d 393, 394-395.) We may further assume, without deciding, that a unanimity instruction was therefore required. On that assumption, we must reverse, unless we are convinced beyond a reasonable doubt that the assumed error was not prejudicial. (People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.)
Here, the evidence of possession with respect to both stashes was identical — Deputy Castaneda testified that he found them both on defendant’s person. However, the evidence of intent to sell was stronger with respect to the methamphetamine in defendant’s sock than with respect to the methamphetamine in his pocket. Thus, a reasonable juror could have concluded that defendant intended to sell both, or neither. Alternatively, a reasonable juror could have concluded that defendant intended to sell the methamphetamine in his sock, but not the methamphetamine in his pocket. No reasonable juror, however, could have concluded that defendant intended to sell the methamphetamine in his pocket, but not the methamphetamine in his sock.
Accordingly, we are convinced, beyond a reasonable doubt, that all 12 jurors did agree unanimously that defendant did intend to sell the methamphetamine in the sock. They might not have agreed that defendant intended to sell the methamphetamine in the pocket; nevertheless, they did agree on one discrete crime. Under these circumstances, the assumed error is harmless. (People v. Wolfe, supra, 114 Cal.App.4th at p. 188.)
D. Prosecutorial Misconduct in Closing Argument.
Defendant contends that the prosecutor committed misconduct in closing argument by misstating the burden of proof.
1. General legal principles.
“A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202, quoting People v. Morales (2001) 25 Cal.4th 34, 44, United States v. Agurs (1976) 427 U.S. 97, 108 [96 S.Ct. 2392, 49 L.Ed.2d 342], and People v. Strickland (1974) 11 Cal.3d 946, 955, respectively.)
“A prosecutor has wide latitude to challenge a defendant’s evidence, and so long as the argument is fair comment on the evidence or a reasonable inference drawn therefrom, it is permissible. [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 216.) “Although a prosecutor is forbidden to comment ‘“either directly or indirectly, on the defendant’s failure to testify in his defense,”’ the prosecutor may comment ‘“on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.”’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 90, quoting People v. Turner (2004) 34 Cal.4th 406, 419.) “A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
“Although counsel have ‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’ [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 702, quoting People v. Bell (1989) 49 Cal.3d 502, 538.) “Although a prosecutor may comment that a defendant has not produced any evidence, he or she may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1195-1196, quoting People v. Bradford, supra, 15 Cal.4th at p. 1340.)
“When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 244, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
“Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor’s improper remarks. [Citation.] In the absence of an objection, ‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176, quoting People v. Earp (1999) 20 Cal.4th 826, 858.)
2. Analysis.
a. First asserted instance of misconduct.
In closing argument, the prosecutor stated: “No evidence was presented that defendant is a user. None. He had no means of ingesting it. He couldn’t smoke it. He couldn’t inject it. He didn’t have a straw. He didn’t even have a dollar bill to roll up to snort it. There is no evidence that he was under the influence at the time. Deputy Castaneda did not even evaluate him. No evidence whatsoever that the defendant uses, never mind that this was for his personal use. There is no evidence that he is a user at all.”
Defense counsel did not object to this portion of the prosecutor’s argument and thereby forfeited defendant’s present contention. In any event, we perceive no misconduct. Elsewhere in his argument, the prosecutor summarized and discussed the evidence that defendant was in possession for the purpose of sale. In this challenged passage, he was simply commenting on the failure of the defense to introduce any contrary evidence. This did not in any way shift the burden of proof; it simply pointed out that the prosecution’s evidence was unrebutted.
b. Second asserted instance of misconduct.
Later, the prosecutor also stated: “Now, there’s a couple of things that you can’t speculate about. You can’t speculate about whether or not the defendant uses. You have no evidence at all. Zero. There’s going to be an argument by [d]efense [c]ounsel that he is a user. Perhaps he is a heavy user. . . .
“You have no evidence that this person uses. None. And you can’t speculate that perhaps he does. There is no evidence. He wasn’t high at the time he was contacted. He wasn’t evaluated to symptomology at the time he was contacted. He didn’t have any means of ingesting it. Nothing. There is no evidence, period. There is nothing to support an alternative theory that he is a user.”
Once again, defense counsel forfeited defendant’s present contention by failing to object at this point. And, once again, the prosecutor was merely commenting on the failure of the defense to introduce evidence to rebut the inference of possession for sale. Defendant claims that the very fact that he was in possession of drugs was some evidence that he was a user. While it might be one rational inference from evidence of possession, standing alone, that the possessor is a drug user, it would be an equally rational inference that the intent behind the possession has not been established. The prosecutor argued that he had presented evidence of possession, plus evidence of intent to sell. He could then appropriately argue that, absent contrary evidence of intent solely to use, the jury should find that defendant in fact intended to sell.
c. Third asserted instance of misconduct.
Finally, the prosecutor stated: “Any type of a question that I or [c]ounsel may have asked to insinuate an answer is not evidence. Questions are sometimes asked to sort of condition you to think something. If enough questions are asked about users and heavy users, then you’re going to think, ‘Maybe he’s a user.’ Maybe he is a heavy user. Possibly he is a heavy user that uses impure stuff so he has to buy tons of it. There’s only one flaw. There is no evidence that he’s actually ever ingested methamphetamine a single time in his life. That evidence could have been presented. And it wasn’t. We have nothing to base that opinion on. And you can’t speculate as if he did. No friends were brought in. No counselors were brought in. No family was brought in.
“[DEFENSE COUNSEL]: Your Honor, I’m going to object as improper, shifting the burden on the defense.
“THE COURT: Yeah, relative to the defense not presenting evidence. Defense has a right to — and I think one of the jury instructions indicated that the defendant need not testify, could rely upon what he believed the state of the evidence to be. So I will sustain the objection.
“Last comment about not bringing people in, that’s to be stricken. Jurors disregard that statement.”
Thus, this time, defense counsel did object to the assertedly improper argument. Moreover, the trial court did admonish the jury. Ordinarily, this is deemed to cure any potential prejudice. (E.g., People v. Young, supra, 34 Cal.4th at p. 1196.) Defendant argues that the admonition was insufficient because the trial court struck only the prosecutor’s “[l]ast comment,” and not the other objectionable portions of the prosecutor’s argument. Defense counsel forfeited this argument, however, by not asking the trial court to make a broader ruling or to give a broader admonition.
In any event, in this instance, the trial court erred in defendant’s favor. In theory, defendant could have tried to bolster his contention that he was in possession solely for personal use by presenting evidence, including the testimony of friends and family members, that he was a methamphetamine user. Of course, this strategy might have had the downside of further tarnishing him in the eyes of the jury. Nevertheless, the prosecutor could properly comment on the failure of the defense to introduce evidence or to call witnesses that would have been logically supportive of the theory of the defense.
We therefore conclude that the prosecutor did not commit misconduct.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING J.