Opinion
G031216.
11-14-2003
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY JOSE GRIFFITH, Defendant and Appellant.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Johnny Jose Griffith argues his judgment of conviction for possession for sale of a controlled substance, possession of a controlled substance, and being under the influence of a controlled substance must be reversed because (1) the trial court erroneously denied a motion for mistrial, and (2) the prosecutor committed misconduct during closing argument. We disagree and affirm the judgment.
The trial court denied defendants motion for a mistrial after a prosecution witness testified he had conducted a probation search of defendants storage unit. The court determined a jury admonition would cure the witnesss inadvertent statement, but defendant rejected the courts offer to admonish the jury. Even if the court abused its discretion by denying defendants motion for a mistrial, any error was harmless.
During closing argument, the prosecutor referred to the different levels of methamphetamine found in defendants storage unit. The prosecutor argued a methamphetamine seller would likely have more than one type of methamphetamine for different customers, just as a marijuana dealer frequently has different levels of marijuana for different customers. There was no misconduct in this case because the prosecutor commented on evidence elicited by defendant. Even if the prosecutor had committed misconduct, the error was harmless.
FACTS
On February 23, 2001, Deputies William Baker and Lance Gilbert of the Orange County Sheriffs Department Gang Enforcement Team went to defendants storage unit in a storage facility in the City of Stanton. Defendants pickup truck was parked in front of the storage unit.
Deputy Gilbert announced "Sheriffs Department" as he and Deputy Baker approached the units open door. Defendant and Bradley Englebrick were standing inside the "cluttered" unit. The deputies entered through a small, cleared aisle and approached defendant and Englebrick.
Defendant was standing behind a five-foot tall blue stackable toolbox. A glass methamphetamine pipe and a torn plastic baggie were on the shelf on the toolbox. Deputy Baker searched the toolbox and found a baggie containing methamphetamine, a methamphetamine pipe, and a scale. Deputy Baker found eight grams of methamphetamine and a methamphetamine pipe in Englebricks pocket. Deputy Gilbert found a torn piece of plastic bag with about a gram of methamphetamine, similar in kind to the methamphetamine found on Englebrick, in the toolbox.
On top of the toolbox there was a scanner tuned to a police frequency. A small black-and-white monitor displaying the front of the storage unit was on a shelf next to the toolbox. The camera feeding the monitor was on top of a safe at the entrance to the storage unit.
Inside the storage unit Deputy Baker found 27 unused baggies "identical to or similar to the torn baggie on the toolbox and to the baggie that was found in Mr. Englebricks pocket with the eight grams of methamphetamine." Deputy Baker also found a blue lighter in the storage unit. Defendant had $ 343 in denominations of ones, twenties, and hundreds, and a cell phone on his person. The cell phone rang about 15 times during the two hours the deputies were present.
In defendants truck, Deputy Baker found defendants wallet with an additional $280 in cash and a pager. Defendant received 10 pages during the deputies search of the unit. The numbers "100" or "200" followed two of the phone numbers on the pager; according to Deputy Baker, this signified the amount of methamphetamine the caller wanted, i.e., $100 or $ 200 worth.
Defendant voluntarily showed Deputy Baker a small hidden room behind a false wall in the storage unit where defendant kept an entertainment center and some bedding. Deputy Baker and other deputies searched the room and three other storage units leased by defendant, but did not recover additional drugs or other drug paraphernalia. The other storage units housed cars, and contained two or three guns.
Approximately two months later on April 26, 2001, Deputies Baker and Gilbert returned to defendants storage unit with Deputy Hoag, Deputy Cherman and Investigator Beeman. Deputy Hoag called defendants name, but there was no response. The aisle into the storage unit was blocked by boxes and large items, making entry difficult.
Deputy Baker entered the storage unit and found defendant in the small hidden room behind the false wall. Deputy Baker saw the other deputies recover two bags of methamphetamine, containing 2.3 and 3.4 grams, respectively. The deputies found a cell phone, keys, and a scanner in a round tool bin.
The deputies arrested defendant and walked him out of the storage unit. Investigator Beeman observed defendant "spoke rapidly[,] . . . was extremely fidgety, and he had a hard time standing still." Investigator Beeman stated, "the symptoms of a sped-up central nervous system [are] hyperactivity of fingers, twitches of small muscles. It increases your speech. You talk rapid[ly]." Investigator Beeman engaged in a drug evaluation to determine if defendant was under the influence of methamphetamine. Defendant told Beeman he had just consumed eight wine coolers.
PROCEEDINGS IN THE TRIAL COURT
An information charged defendant with one count each of: (1) possession for sale of a controlled substance (Health & Saf. Code, § 11378), (2) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and (3) being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
Defendant pleaded not guilty to all counts. The jury returned a guilty verdict on all the charges. Defendant timely appealed.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING
DEFENDANTS MOTION FOR A MISTRIAL.
"[W]e review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a partys chances of receiving a fair trial have been irreparably damaged." (People v. Ayala (2000) 23 Cal.4th 225, 283.) Defendant contends the trial court should have granted a mistrial because (1) the prosecutions witness, Deputy Baker, testified he went to defendants storage unit on April 26, 2001, to conduct a probation search, which testimony violated a pretrial agreement not to admit evidence related to defendants prior convictions; and (2) such evidence was highly prejudicial to defendants case.
During the direct examination of Deputy Baker, the prosecutor asked what was the purpose of the search at defendants storage unit on April 26, 2001. Deputy Baker replied, "It was a probation search." Defendants counsel immediately objected and moved to strike. In chambers, defendants counsel moved for a mistrial. After discussing the matter in chambers, the trial court acknowledged its dissatisfaction with Deputy Bakers response, denied the motion for a mistrial, but preserved the objection. The court offered to admonish the jury, but defendants counsel rejected the offer because "the court mentioning it [was] just going to focus further attention on it." Defendant contends it was reversible error to deny the motion for a mistrial.
Introducing evidence of defendants past criminality presents the possibility of prejudicing defendants case and rendering the outcome of the trial suspect when a jury admonition will not cure the mistake. (People v. Price (1991) 1 Cal.4th 324, 431 [jury admonition was sufficient to cure the improper statements of a witness regarding defendants past time in jail].) "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Here, the court determined the reference to a probation search was not sufficiently prejudicial to require a mistrial, but nevertheless offered to admonish the jury. Defendants counsel, however, refused the admonition, fearing it would focus further attention on the matter.
Defendant argues the prosecutor agreed before trial not to mention defendants past criminal record. The record does not support this argument. During a pretrial conference, the prosecutor stated he did not plan on using defendants prior criminal record to impeach defendant if he took the stand. The court determined there was no agreement to completely disregard defendants prior conviction. Even if there were such an agreement, under the circumstances the trial court was well within its discretion to conclude Deputy Bakers statement about conducting a probation search was not so prejudicial as to require a mistrial. (People v. Williams (1981) 115 Cal.App.3d 446, 453 [witnesss inadvertent reference to conversation with parole officer was not so prejudicial as to require a mistrial even when the court had previously decided such evidence should not be brought before the jury].)
Even if the trial court abused its discretion in denying the motion for mistrial, any error was harmless. Evidence of defendants guilt was overwhelming and virtually undisputed at trial. The deputies found the following items in defendants storage unit, in his truck, or on his person: a scale, a police scanner, a surveillance camera and monitor trained on the entrance to the storage unit, baggies (some of which contained methamphetamine), a methamphetamine pipe, large quantities of methamphetamine, large amounts of cash, a cell phone, and a pager. When arrested, defendant showed signs of being under the influence of methamphetamine. It is not reasonably probable defendant would have received a more favorable result had the remark regarding his probation not been made. (People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [witnesss statement referring to a conversation with the defendants parole officer was not prejudicial given the evidence against the defendant].)
II. THE PROSECUTOR DID NOT ENGAGE IN MISCONDUCT.
Defendant argues his conviction must be reversed because the prosecutor committed prejudicial misconduct. During closing argument, the prosecutor said: "So weve got about three baggies of methamphetamine. Defendant uses and cuts them up, different qualities. Yeah, maybe. Maybe he sells a little stiffer brand to some person and a little bit milder brand to the other person. [¶] Happens with marijuana. They call it skunk weed, and they call it other different types. Marijuana has different potencies; why cant they have it in methamphetamine. Im sure it happens, and Im sure sellers would rather have a variety."
Defendant objected, contending the argument improperly assumed facts not in evidence and therefore constituted prosecutorial misconduct. The trial court overruled the objection stating, "its an analogy."
Prosecutorial misconduct includes the use of deceptive or reprehensible methods to persuade the jury, even if such action does not render the trial fundamentally unfair. (People v. Frye (1998) 18 Cal.4th 894, 969; People v. Hill (1998) 17 Cal.4th 800, 819; People v. Strickland (1974) 11 Cal.3d 946, 955; People v. OBryan (1913) 165 Cal. 55, 66.)
To preserve a claim for prosecutorial misconduct, the defendant "must generally object and request the court to admonish the jury to disregard the misconduct" (People v. Cox (2003) 30 Cal.4th 916, 952) unless "a request for admonition . . . would be futile" (People v. Hill, supra, 17 Cal.4th at p. 820). Here, because the court overruled the objection, any request for an admonition would have been futile. Defendants objection to the argument preserved the issue for appeal. (Ibid.)
The prosecutors closing argument did not rise to the level of misconduct. During the cross-examination of Deputy Baker, defendant established: (1) the existence of varying qualities of methamphetamine; (2) the methamphetamine found in Englebricks pocket differed from the methamphetamine found in another baggie in the storage unit; (3) some of the methamphetamine found in the storage unit "look[ed] like pretty decent stuff" and some of it "look[ed] like real good methamphetamine"; and (4) it is probable for a seller to have more than one type of methamphetamine on hand, i.e., a low-end type for personal use and other types for sale. In light of this evidence elicited by defendant, the prosecutors closing argument did not assume facts not in evidence, but rather was proper commentary on the evidence.
Even if the prosecutors closing argument assumed facts not in evidence, it did not prejudice defendant. "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we `do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.]" (People v. Frye, supra, 18 Cal.4th at p. 970.) "We often have explained that a prosecutor may engage in vigorous argument before the jury, drawing reasonable deductions from the evidence." (People v. Brown (2003) 31 Cal.4th 518, 554.) The prosecutors analogy was a small part of the closing argument, asserting nothing defendants own evidence did not suggest. Any error was harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J. and MOORE, J.