Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF132805, Robert George Spitzer, Judge.
Patrick J. Hennessey, Jr., 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, Assistant Attorney General, and James D. Dutton, Melissa Mandel and Marrisa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
INTRODUCTION
Defendant Oscar Gonzalez appeals his convictions for violations of Health and Safety Code sections 11379, subdivision (a) and 11366.8, subdivision (a). Defendant contends (1) the trial court erred in allowing drug courier profile testimony; (2) the evidence was not sufficient to establish his convictions; and (3) prosecutorial misconduct during closing argument prejudiced the jury against him. We find no error and affirm.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
A. Procedural Background
On December 27, 2006, an information was filed in the trial court charging defendant with four criminal counts. Count 1 charged defendant with willfully and unlawfully possessing methamphetamine for sale (Health & Saf. Code, § 11378) in an amount exceeding one kilogram of solid substance (Health & Saf. Code, § 11370.4, subd. (b)(1)). Count 2 charged defendant with willfully and unlawfully transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) in an amount exceeding one kilogram of solid substance (Health & Saf. Code, § 11370.4, subd. (b)(1)). Count 3 charged defendant with willfully and unlawfully possessing, using, and controlling a false compartment with the intent to store, conceal, smuggle, and transport a controlled substance within the false compartment. (Health & Saf. Code, § 11366.8, subd. (a).) Finally, count 4 charged defendant with willfully and unlawfully conspiring (Pen. Code, § 182, subd. (a)(1)) to possess a controlled substance for sale (Health & Saf. Code, § 11378). Count 4 also alleged that defendant possessed methamphetamine in an amount exceeding four kilograms of solid substance. (Health & Saf. Code, § 11370.4, subd. (b)(2).)
The jury found defendant guilty of counts 2 and 3, but not guilty of counts 1 and 4. Additionally, the jury found defendant did not willfully and unlawfully transport or possess for sale methamphetamine in an amount exceeding one kilogram, as alleged under count 2.
The trial court sentenced defendant to the midterm of three years for count 2 and to a concurrent midterm of two years on count 3.
B. Facts
1. The Incident
On October 13, 2006, Roland Acevedo, a senior detective for the Riverside County Sheriff’s Department, was leading a team which was conducting surveillance on a house in Corona. Around 8:00 p.m., Acevedo saw a silver truck approach and park in front of the driveway. A minute or two later, a GMC truck pulled up behind the silver truck. The driver of the silver truck, later identified as Moises Garcia, stepped out and retrieved a black bag from the back of his truck’s cab. Two men then got out of the GMC truck and Garcia handed them the black bag, after all three looked inside it. Acevedo watched as the two men entered the house and Garcia got back into his truck and drove away. Because Acevedo believed he had witnessed a drug transaction, he sent a few members of the surveillance team to follow Garcia.
City of Riverside Police Officer Randal Hecht was one of the team members who followed Garcia’s truck. Hecht followed Garcia to a house in La Mirada. While en route, Hecht noted Garcia did not take the most direct route, but instead made four or five additional turns. At the La Mirada location, Garcia entered the house, and 30 minutes later he drove away with defendant as his passenger. Hecht followed Garcia and defendant to an apartment complex in Buena Park, where Garcia parked his truck, and both he and defendant got out and entered an apartment. Neither defendant nor Garcia was carrying anything in his hands. Five minutes later, Hecht saw Garcia and defendant exit the apartment. Defendant was holding a black plastic bag, which appeared to contain “somewhat of a heavy object.” As defendant and Garcia were leaving the apartment, they saw Hecht, who was dressed in civilian clothes. Hecht described both as appearing panicked and having “deer-in-the-headlights” looks.
Alfredo Medina of the Riverside County Sheriff’s Department also followed Garcia and defendant to the Buena Park apartment. Medina made the same observations as Hecht regarding Garcia’s and defendant’s actions. Medina also observed Garcia and defendant leaning in and reaching around in the back of the truck’s cab for more than five minutes before the two got into the truck and drove away. Medina and Hecht each radioed to Acevedo about Garcia’s and defendant’s movements.
Upon hearing from Medina and Hecht, Acevedo requested assistance from California Highway Patrol Canine Officer Gilbert Carrera. Acevedo asked Carrera to watch for a silver Dodge pickup truck. Shortly thereafter, Carrera observed a truck matching that description travelling 80 miles per hour in a 50 or 60 miles-per-hour zone heading east on State Route 91. Consequently, Carrera pulled the truck over for speeding.
Carrera testified that neither occupant made any sudden movements when he pulled the truck over. After reviewing the driver’s license and talking to both truck occupants, Carrera learned Garcia was the driver and defendant was the passenger. Carrera described both Garcia and defendant as acting surprised and nervous. Specifically, Garcia appeared “startled” and “not at ease.” Carrera testified that defendant “was unsteady on his feet. He kept shifting his weight around while [he was] outside the vehicle,” and he stammered a little although it did not appear that defendant was sweating.
Carrera ran his drug detection dog around Garcia’s truck. The dog alerted to the passenger side rear quarter panel, and Carrera discovered a hidden compartment in which there were three containers holding approximately three pounds of a substance. A similar, but empty, compartment was found on the driver’s side rear quarter panel. A field test indicated the substance was methamphetamine. Additionally, an empty black plastic bag was found in the rear of the cab. Carrera placed Garcia and defendant under arrest.
Riverside County Sheriff’s Department Detective Aaron Kent was responsible for recovering narcotics from Garcia’s truck. Kent found plastic gloves, a screwdriver, some compact discs and a garage door opener within the cab of the truck. Kent noted the empty black plastic bag in the back of the cab. Kent did not think the bag was significant, so he did not keep it in police custody.
Acevedo and Medina interviewed defendant. Most of the interview was conducted in Spanish. Defendant told the officers he was from San Francisco and was visiting a friend named Alfredo. Defendant also explained he was not “that much” involved in this incident.
The next morning, Riverside County Sheriff’s Department Investigator David Gorlicki executed a search warrant for the Buena Park apartment. The apartment was two stories. Gorlicki and his team found no one in the apartment, but on the floor along the wall in the living room were wrapping materials and latex gloves. The upper level was completely empty of clothing or furniture. In the kitchen, Gorlicki found more wrapping materials, Tupperware containers, latex gloves, and an electronic scale. In the entry closet across from the kitchen, 19 containers of methamphetamine were discovered in a hole in the ceiling. Police later determined that the 19 containers weighed approximately 17 pounds. An expert witness testified that 20 pounds of methamphetamine had a wholesale value of about $250,000. Gorlicki did not find anything specifically connecting defendant to the apartment, like mail or fingerprints. During trial, Hecht, who assisted with the search, testified that the condition of the Buena Park apartment was consistent with a typical drug “stash house.”
At trial, a criminalist testified that the three containers found in the false compartments of Garcia’s truck weighed a total of 2.9 pounds, or 1.3 kilograms. Hecht estimated the value of this amount of methamphetamine to be between $35,000 and $40,000.
2. The Defense
Defendant testified on his own behalf. Defendant stated that he met Garcia in his hometown in Mexico a few years earlier when defendant was dating Garcia’s sister. Until two days prior to the incident, defendant had resided for the previous five years in Ukiah, California. In Ukiah, defendant held two jobs but resigned from both in order to start his own business in Southern California. Defendant had reestablished contact with Garcia when both were visiting Mexico earlier in the year. Defendant had asked Garcia, now a resident of Southern California, if he could stay with Garcia for a few days while he looked for a place of his own. Garcia let defendant stay in the La Mirada house.
On the night of the incident, defendant testified that Garcia picked him up at the La Mirada house so that they could attend a Friday the 13th party. Garcia then drove to the Buena Park apartment but never explained to defendant why they were going to the apartment. Defendant did enter the apartment with Garcia, but stood in the kitchen talking on his cell phone while Garcia went to the back. After a minute or so, Garcia came back into the kitchen and handed defendant a black plastic bag to carry. Defendant stated he did not look in the bag, but the bag felt very light. Defendant and Garcia went back to the truck and got in. Defendant said that he only put the black bag in the back seat and then looked for a bag containing compact discs before they drove away.
Defendant testified that he knew nothing about drugs in the truck and that Garcia had told him that he worked in construction. Defendant also stated that he was not nervous when he left the Buena Park apartment with Garcia or during the traffic stop.
DISCUSSION
A. Drug Courier Testimony
1. Background
Defendant contends the trial court erred in allowing testimony by Hecht regarding his “belief that [defendant’s] actions and presence, given the amount of contraband, fit within a drug organization profile indicating knowing participation on [defendant’s] part in the drug trafficking organization.” Defendant argues this type of expert testimony was inadmissible and inherently prejudicial because “the clear thrust of it was to establish that [defendant] fit a certain profile or must have been presumed to be part of a narcotics trafficking operation.”
Prior to trial, defendant moved to exclude testimony regarding drug distribution networks. Following a hearing, the trial court denied the motion because it found “[t]he areas that are touched on about how drugs are distributed, and in this case, particularly large quantities of drugs, or at least medium quantities of drugs, certainly at what we’ll call the wholesale as opposed to the retail level, do not necessarily appear to be the province of most jurors . . . .” But the court stated that if the prosecution asked for an opinion in regards to defendant’s behavior, then defendant should object and the court would sustain. “The basis of his opinion, facts upon which he relies, it is, after all, just opinion evidence. And insofar as he’s not speaking about the defendant directly but about general operation of these distribution networks, then the area of expertise, the jury is free to disregard it if they find it to be unbelievable, unreasonable, or unsupported by the evidence.”
Testifying as an expert, Hecht educated the jury on drug distribution networks. Hecht described what a “stash house” was and that the Buena Park apartment was consistent with one. A stash house will have “very little furniture. There will be scales. Packaging material. Scales are used to weigh the drugs to the desired amount for delivery. The packaging material would be used to package the drugs that would be delivered. Often there would be a lot of trash and packaging material laying [sic] around.”
Hecht testified that drugs are commonly given to dealers on credit and once the drugs are sold, the money is paid back. If the drugs are stolen, then the drug organization is still responsible for the drugs and if the organization can’t pay for the drugs, then “somebody could be killed.” Thus, Hecht explained it is extremely important that people within the drug organization be highly trusted. “[D]rug dealers like to have—they like to be anonymous. They don’t want people to know their business, so to speak. Again, if somebody comes over [to their stash house], they’re not just going to take anybody there out of fear that that person could tell somebody else about it who would come and steal the drugs or try to rob them. I would say they would definitely not take anybody not involved.” Therefore, Hecht stated it would be very uncharacteristic for a dealer to bring an innocent bystander to a stash house, to have a nondrug dealer carry drugs for a dealer who operates out of a stash house, or to show an innocent bystander a hidden compartment in a vehicle.
2. Standard of Review
The trial court has broad discretion to admit or exclude expert testimony. “The decision of a trial court to admit expert testimony ‘“will not be disturbed on appeal unless a manifest abuse of discretion is shown.”’” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1083.)
3. Analysis
When considering expert testimony, trial courts look to Evidence Code section 801, which states: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
Here, Hecht testified as an expert regarding drug trafficking operations’ typical procedures and operation. As the trial court stated, this subject is sufficiently beyond common experience of most, if not all, of the jury. Thus, Hecht’s knowledge gave the jury a basic framework for the drug distribution culture. Based on Hecht’s special knowledge and experience, he formed the opinion that the Buena Park apartment searched by police and described to the jury was typical for a stash house. Hecht never stated any opinion as to defendant’s activity in and around the stash house.
Had Hecht gone into detail regarding the typical profile for a drug courier, then his testimony would have been inadmissible because “[d]rug courier profiles have been held to be ‘“inherently prejudicial because of the potential they have for including innocent citizens as profiled drug couriers. . . .”’” (People v. Robbie, supra, 92 Cal.App.4th at p. 1084.) Such a profile is “inherently prejudicial because it requires the jury to accept an erroneous starting point in its consideration of the evidence. We illustrate the problem by examining the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way.” (Id. at p. 1085.)
Defendant argues that People v. Martinez (1992) 10 Cal.App.4th 1001, 1007-1008 (Martinez), is analogous to his case. In Martinez, the prosecution used profile evidence to show that the defendant fit a profile of those involved in moving stolen vehicles to imply that defendant stole a vehicle. (Id. at p. 1006.) “Presumably the purpose of the evidence was to show that defendant was lying when he claimed he bought the car on a street corner and did not know it was stolen. The prosecution tried to prove this by showing that other drivers found driving similar vehicles under similar circumstances made the same claim. Here the prosecution implicitly asked the jury to use defendant’s disavowal of knowledge to bolster the theory that the other drivers were lying when they denied knowledge and then using that conclusion in turn to reach the conclusion that defendant knew the vehicle was stolen. This sort of bootstrap reasoning is impermissible, and the trial court erred in admitting the evidence of other crimes without first requiring proof that defendant was connected with the other crimes.” (Id. at pp. 1007-1008.)
In this case, no evidence was given regarding other drug couriers nor was defendant’s behavior linked to behavior of other drug couriers. Instead, Hecht’s testimony was used to educate the jury on drug trafficking and explain why the Buena Park apartment was in the condition it was. Additionally, Hecht’s testimony was most relevant with respect to the conspiracy charged under count 4, of which defendant was found not guilty. The jury was able to take Hecht’s knowledge and make logical inferences for themselves; the inferences were not made for them as was done in Martinez. Therefore, we find the trial court did not abuse its discretion by allowing Hecht’s testimony.
B. Sufficiency of Evidence
1. Background
Defendant contends the evidence “was not sufficient to establish beyond a reasonable doubt that [he] was in knowing possession or exercised knowing dominion and control over the three pounds of methamphetamine or that he had any interest or knowledge of the secret compartments in the back of the vehicle.” He asserts that the evidence “establishes nothing more than he was a passenger in a vehicle in which the three pounds of methamphetamine were found.” Furthermore, defendant claims there was no evidence showing he had any ownership interest in Garcia’s truck or the Buena Park apartment or that he knew there were drugs in Garcia’s truck. According to defendant, his presence in the pickup truck does not establish his knowledge of a controlled substance or the false compartment, and thus, his “convictions on both counts must be reversed.”
2. Standard of Review
“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Additionally, “‘[t]he standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]” [Citation.] “‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’”’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
3. Analysis
(a) Count 2—Transporting Methamphetamine
Section 11379, subdivision (a), in relevant part, reads: “[E]very person who transports, . . . offers to transport, . . . or attempts to . . . transport any controlled substance . . . shall be punished by imprisonment in the state prison . . . .” The trial court instructed the jury: “To prove this crime, the People must prove four things: One, the defendant transported a controlled substance. Two, the defendant knew of its presence. Three, the defendant knew of the substances [sic] nature or character as a controlled substance. And four, the controlled substance was methamphetamine. [¶] A person transports something if he or she carries it or moves it from one location to another, even if the distance is short. The People do not need to prove that the defendant knew which specific controlled substance he transported, only that he was aware of the substance’s presence, and that it was a controlled substance.”
Thus, the first element to prove is that the defendant transported the methamphetamine. “‘“Transport,” as used in this statute, has no technical definition,’ but rather ‘as used in the statute is “commonly understood and of a plain, nontechnical meaning.” [Citations.] . . . “‘The crux of the crime of transporting is movement of the contraband from one place to another.’ [Citations.]”’” (People v. Ormiston (2003) 105 Cal.App.4th 676, 682.)
Evidence established that officers observed defendant entering the Buena Park stash house empty-handed, walking from the stash house with a black plastic bag containing an object, leaning into and reaching around in the back of the truck’s cab over a period of about five minutes, then getting into the truck as a passenger and driving away until the truck was pulled over with three pounds of methamphetamine found in the false compartment and an empty black plastic bag found in the back of the truck’s cab. Given these facts, the jury could reasonably infer defendant was transporting methamphetamine from one place (the Buena Park apartment) to another (the false compartment in the truck and then to some unknown destination). Therefore, this movement falls within the meaning of “transport” as given in People v. Ormiston, supra, 105 Cal.App.4th at page 682.
The second and third elements are that the defendant knew of the controlled substance’s presence and knew the substance was controlled. Proving knowledge can be difficult. “As might be expected, no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant’s knowledge of the presence of a narcotic . . . .” (People v. Redrick (1961) 55 Cal.2d 282, 287.) Typically, to prove knowledge, courts have previously considered evidence such as the defendant’s secretive acts and suspicious conduct (People v. Williams (1971) 5 Cal.3d 211, 216) or showing a defendant’s familiarity with the substance (People v. Simmons (1971) 19 Cal.App.3d 960, 965).
Defendant relies on People v. Tripp (2007) 151 Cal.App.4th 951, to argue that the evidentiary link to prove his knowledge of the false compartment was missing. In Tripp, the Fifth District held that the People did not prove that the defendant knew a substance found on a nightstand in the defendant’s bedroom was methamphetamine when two other adults lived in the house, one of whom shared the bedroom. (Id. at p. 957.) The appellate court stated: “Nowhere in this evidence was there proof that defendant knew the powder was methamphetamine. There was no evidence of any methamphetamine paraphernalia nearby or on defendant’s person that would connect the powder to ingestion or smoking. There was no evidence of any type of packaging characteristic of methamphetamine . . . . There was no evidence that defendant attempted to flee or to hide the methamphetamine that would suggest a consciousness of guilt. And there was no evidence that defendant used methamphetamine generally or on any occasion including that night specifically, such that his knowledge of its narcotic nature could be inferred from his familiarity with it. In sum, there was nothing other than the methamphetamine’s presence on the nightstand in his room and that was not enough. An evidentiary link was missing.” (Ibid., fn. omitted.)
Here, in contrast, based on the evidence given at trial, along with the inferences that could be made from Hecht’s testimony on drug trafficking operations, there was clearly enough to support the jury’s finding that defendant knew of the controlled substance’s presence and knew the nature of the controlled substance. First, the apartment defendant and Garcia walked into was a stash house where officers later found hundreds of thousands of dollars worth of methamphetamine. Defendant admitted he remained in the kitchen throughout his stay in the apartment. During the search, police found nothing but plastic containers, plastic gloves, packaging materials, rolls of duct tape, and electronic scales within the kitchen cupboards. Before leaving, he was given a black plastic bag to carry. Additionally, two officers testified that defendant appeared nervous after leaving the apartment with the black plastic bag and when contacted after the traffic stop. Given this evidence, the jury could reasonably infer defendant knew he was in the presence of drugs because all of these facts taken together would lead a reasonable individual to conclude that something suspicious was going on.
Finally, the fourth element was proven by subsequent tests on the substance found in the truck. Both the field test and the crime lab determined the substance to be methamphetamine.
Thus, although all the evidence was circumstantial, there was substantial, reasonable, and credible evidence to justify the jury finding defendant guilty beyond a reasonable doubt of transporting methamphetamine.
(b) Count 3—False Compartment
Section 11366.8, subdivision (a) reads: “Every person who possesses, uses, or controls a false compartment with the intent to store, conceal, smuggle, or transport a controlled substance within the false compartment shall be punished by imprisonment . . . .” The trial court instructed the jury: “To prove that the defendant is guilty of this crime the People must prove the defendant used or controlled a false compartment with intent to transport a controlled substance in the false compartment in a vehicle.”
Defendant argues that his presence in the truck does not establish knowledge of a false compartment. Defendant primarily relies on U.S. v. Pena (6th Cir. 1993) 983 F.2d 71, 72, where the Sixth Circuit determined that there was insufficient evidence to sustain the defendant’s conviction for aiding and abetting the driver of a car in his possession of 17 kilograms of cocaine for distribution. The court held the evidence was insufficient to show that the defendant, who was a passenger in the car, had any knowledge of the existence of the cocaine that was hidden in the car “or took any steps to assist in the transportation or delivery of the cocaine.” (Ibid.) Although the defendant in Pena had admitted she “felt” there was probably something illegal going on, the court stated that “[t]here must be some additional proof offered by the government that [the defendant] knew something more about the nature of the enterprise and assisted in carrying it out.” (Id. at p. 73.)
In this case, the People did offer additional proof that defendant knew the nature of what was happening and that he assisted in carrying out the illegal activity. During trial, Medina testified he watched both defendant and Garcia stand “at the driver’s side while it was opened. Opened up the door, stood at the driver’s side and kind of reached into the back seat of the truck. And it looked like one would go in there. I couldn’t tell you what order one would reach his hand back there while they were still kind of standing outside reaching toward the back, and then the other one would reach back there. And they did that for about almost five minutes maybe, maybe less than that. Then they closed the driver’s door and walked over to the passenger’s side.” Medina testified that the same activity occurred on the passenger side before the two got into the truck. During Carrera’s traffic stop, false compartments containing methamphetamine were discovered behind the driver and passenger seats, right where Medina observed defendant and Garcia reaching, only a short time earlier.
Coupled with the evidence to prove defendant transported methamphetamine and Hecht’s testimony on drug distribution networks, the jury had enough substantial, reasonable, and credible, although circumstantial, evidence to find that defendant utilized and was aware of a false compartment for the purpose of transporting methamphetamine.
C. Prosecutorial Misconduct
1. Background
Defendant contends that three statements made during the prosecution’s closing argument, either singularly or in combination, constituted misconduct and require defendant’s convictions be reversed.
2. Forfeiture
The People contend defendant failed to preserve the issue. “To preserve for appellate review a claim of prosecutorial misconduct, a defendant must raise a timely objection and, if practicable, request a curative admonition; except where a timely objection would be futile, absent such an opportunity for the trial court to consider the claim of misconduct and to remedy its effect, any error is waived and we will not review it.” (People v. Noguera (1992) 4 Cal.4th 599, 638.) The reason an objection should be made and a curative admonition should be requested “is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.” (People v. Williams (1997) 16 Cal.4th 153, 254.)
During closing argument, defense counsel objected to three statements, and the trial court sustained those objections. However, for all three, defense counsel did not request a curative admonition; thus, according to Noguera, any error is waived. Nonetheless, since a prosecutor is held to a high standard “because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state,” we will address each statement. (People v. Hill (1998) 17 Cal.4th 800, 820.)
3. Analysis
(a) Statement One
The first statement objected to was: “Detective Acevedo can’t read minds. He doesn’t know what one officer is seeing. He’s not gathering a script. They’re not trying to frame the defendant. These are seasoned veterans of the force. Are they going to risk their careers, they’re [sic] 20 plus years . . . .” (Italics added). Defendant claims “the prosecutor injected his own opinion as he vouched for the veracity of the officers by noting that they would not jeopardize their 20-year careers to knowingly seek prosecution of an innocent individual.”
Typically, “‘[i]mpermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’” (People v. Williams, supra, 16 Cal.4th at p. 257 quoting People v. Fierro (1991) 1 Cal.4th 173, 211.) But, impermissible vouching does not occur “where ‘the prosecutor properly relie[s] on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief.’” (People v. Williams, supra, at p. 257.)
Here, the prosecutor made no personal assurances, but instead relied on the facts given to the jury regarding the officers’ work history. The “20-plus years” comment was not simply personal knowledge, but testimony given by the officers. Additionally, this statement was made during the prosecution’s rebuttal, after the defense attorney had made a number of negative comments regarding the memory, professionalism, and integrity of the police officers who testified. Defense counsel specifically focused his comments on Medina. Defense counsel argued that Medina “has problems with his memory, or worse, and he’s stated in fact here, which is simply not correct.” Later, defense counsel argued, “[a]nd here’s the problem with Deputy Medina. He’s so wrong so many times, and it’s hard to figure whether he’s wrong just because he’s got a bad memory or for whatever reasons, and it doesn’t matter. But it does matter.” And, “[h]e’s got a bad memory. He’s something worse than that.” Finally, defense counsel insinuated Medina had not correctly translated what defendant said during his initial interview with police. “It’s serious, serious stuff when an officer’s testifying to a statement made by a defendant in the middle of major prosecution . . . . It’s a deliberate misquote.”
Consequently, given these statements made during defense counsel’s closing argument, the prosecutor was justified in making the comment he did and was not impermissibly vouching during his rebuttal. Therefore, there was no misconduct.
(b) Statements Two and Three
The other two statements objected to involved references to the defense attorney’s style and tactics and, like statement one, also occurred during the prosecution’s rebuttal. The second statement objected to was: “The defense attorney had an opportunity to confront Medina on those comments [regarding defendant’s choice of words during his initial police interview]. He didn’t in a single question. Didn’t concede. Wasn’t calling him a liar like he’s doing now. He had his opportunity. He blew it. So he’s trying to pull a fast one over you.” (Italics added.)
The final statement was: “So the defense attorney can huff and huff all he wants, but he’s doing his job. Cop’s lying. Everybody’s lying. My client has a job. Not guilty. And if we brought in the bag, he would have other arguments to make. We’re not sure the cops are lying. Cops are lying. His job is to make arguments. [¶] . . . [¶] . . . His job is to try to convince you, guilt or innocence aside, that his guy didn’t do it. So no matter how much evidence I brought into it, a creative defense attorney will . . . .” (Italics added.) Again, defendant objected and the trial court told the prosecution to “stick to evidence as opposed to personal again.”
Usually, “[a] prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill, supra, 17 Cal.4th at p. 832.) An attack on the defendant’s attorney can be seriously prejudicial because it may be perceived as an attack on the defendant. (Ibid.) But, in People v. Cunningham (2001) 25 Cal.4th 926, 1002, the California Supreme Court stated that a prosecutor’s comments regarding defense counsel tactics constitute a proper argument when made in response to what the defense presented. Typically, these comments are to be understood by juries “as nothing more than urging the jury not to be misled by the evidence.” (Id. at p. 1003.)
In this case, during closing argument, defense counsel made statements regarding the prosecutor’s take on the evidence. For example: “The [prosecutor] wants you to just accept that, okay. He said it, it’s true. And he’s trying to fool you or something. But we all have our view of the evidence, and his is wrong, and it’s not supported by the evidence because he wants you to assume that those three packages were in [the black plastic bag]. And there’s no evidence of that.”
We agree with the Cunningham court that the prosecutor’s remarks would have been understood by the jury as an admonition not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel. Therefore, we find no misconduct.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.