Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct.No. SS062906A
Duffy, J.
A jury convicted defendant Rafael Guerrero of possessing methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court sentenced defendant to formal probation for 18 months under Proposition 36 and suspended imposition of sentence.
On appeal, defendant contends that the trial court erred in giving an instruction on constructive possession, that he received ineffective assistance of counsel when counsel failed to object to a prosecutorial remark at closing argument, and that the court erred in failing to give an instruction on his extrajudicial statements.
Finding no reversible error or ineffective assistance of counsel, we will affirm the judgment.
FACTS
Defendant was prosecuted for possessing methamphetamine found in a chewing-tobacco tin at the beach.
I. Prosecution Case
On September 26, 2006, at approximately 2:00 a.m., Monterey County Sheriff’s Deputies Conan Hickey and Dustin Hedberg were on patrol in the area of Monastery Beach. They saw an unoccupied Ford Ranger parked along an otherwise empty shoulder of southbound Highway 1 and parked. The deputies saw defendant walking from the beach toward the Ranger. Defendant was about 20 feet away from them at that point. The deputies aimed one or both of their bright patrol car spotlights and their hand-held flashlights toward defendant. In the spotlighted glare, Hickey saw defendant throw an unrecognizable object to the ground when he looked in the deputies’ direction. Hedberg saw the same action, and before the item left defendant’s hand Hedberg recognized it as being a tin originally manufactured to contain Skoal brand chewing tobacco. Hedberg recovered the tin after noting the general area in which it appeared to have had landed—unlike Hickey, Hedberg did not see it hit the ground—and noticed that the item was not dirty, nor was it covered in sand or other debris. Inside the tin was a small piece of plastic containing what the deputies both recognized as methamphetamine. The lid of the tobacco tin had two attached magnets to allow it to be fastened to a vehicle undercarriage or under a vehicle dashboard for concealment.
The deputies searched the immediate area where defendant had discarded the tin and found nothing else. At the location where the deputies had first spotted defendant, however, they found a lighter and a glass pipe used for smoking methamphetamine. The area was deserted.
The deputies searched defendant and found another Skoal-brand tin on him. That tin, however, contained only chewing tobacco. Additional tins labeled for Skoal brand tobacco were found in defendant’s vehicle, but most were empty and none contained contraband. Laboratory tests identified the substance found in the tin the deputies picked up off the ground as consisting of 0.62 grams of methamphetamine, a usable quantity.
II. Defense Case
At trial, defendant presented no evidence of his own, instead relying on the state of the evidence presented by the prosecution’s witnesses on direct examination and cross-examination. That evidence included testimony that after the deputies removed the suspected methamphetamine from the container, defendant said, “you didn’t find that on me. I didn’t have that on me when you talked to me.” Defendant was arrested at the scene and thereafter volunteered several times that the tin with the suspected methamphetamine was not found on him. No fingerprint tests were done on the tin that was recovered from the ground, the lighter, or the glass pipe.
DISCUSSION
I. Instructing on Constructive Possession
Defendant claims that the trial court erred in instructing the jury that it could convict him on a theory of constructive possession of methamphetamine.
“The elements of possession of narcotics are physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. [Citations.] Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.” (People v. Newman (1971) 5 Cal.3d 48, 52, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.)
All of the prosecution evidence presented to the jury pointed to defendant’s actual, rather than constructive, possession of the methamphetamine. At the parties’ request, however, the trial court instructed the jury on constructive possession as well as actual possession. Defendant requested that the jury be instructed in the language of CALJIC Nos. 1.24 and 12.00, but the court gave the instruction, pursuant to the prosecution’s request, in the language of CALCRIM No. 2304. Both of these instructions permit the jury to convict a defendant on constructive possession of a controlled substance.
CALJIC No. 1.24 provides, as relevant here, that “There are two kinds of possession: actual possession and constructive possession. [¶] Actual possession requires that a person knowingly exercise direct physical control over a thing. [¶] Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.” CALJIC No. 12.00 is materially identical, varying only in punctuation. CALCRIM No. 2304 dropped the “constructive possession” term of art found in CALJIC instructions. Following the pattern language of CALCRIM No. 2304, the court instructed the jury that “A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”
Defendant argues that in so doing, the trial court erred. We conclude that defendant invited any error the court may have committed and therefore he cannot complain of the court’s action on appeal.
“ ‘ “The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a ‘conscious and deliberate tactical choice’ to ‘request’ the instruction.” ’ ” (People v. Thornton (2007) 41 Cal.4th 391, 436.) As relevant to defense counsel’s action in this case, “the record must show only that counsel made a conscious, deliberate tactical choice between having the instruction and not having it. . . . If . . . the record shows this conscious choice, it need not additionally show counsel correctly understood all the legal implications of the tactical choice. Error is invited if counsel made a conscious tactical choice. A claim that the tactical choice was uninformed or otherwise incompetent must, like any such claim, be treated as one of ineffective assistance of counsel.” (People v. Cooper (1991) 53 Cal.3d 771, 831.) The reason for the foregoing rule is not hard to discern. “[T]he invited error doctrine applies so long as counsel made a conscious, tactical choice even if such choice was based on a misunderstanding of the law. The legal theory for complaining about counsel’s misunderstanding of the law is ineffectiveness of counsel, not invited error. To hold otherwise puts a trial court in the position of being a guarantor of counsel’s tactics: if the tactical decision . . . turns out to have been unknowledgeable, the error should be charged to counsel, not the trial court.” (People v. Duncan (1991) 53 Cal.3d 955, 970.)
Whether it was a good idea or not, defense counsel invited any error and defendant may not complain on direct appeal that the trial court did the very thing his counsel consciously chose to ask it to do.
II. Ineffective Assistance of Counsel Based on Prosecutorial Misconduct
Defendant claims that he received ineffective assistance of counsel because counsel failed to object to an assertedly improper prosecutorial remark at closing argument. We disagree.
As noted, defendant presented no evidence of his own, instead relying on the state of the evidence presented by the prosecution’s witnesses on direct examination and cross-examination.
The prosecutor stated in essence during closing argument that the People have the burden of proving every element of a crime to the trier of fact’s satisfaction beyond a reasonable doubt. This was, of course, a correct statement of the law. “[T]he United States Supreme Court [has] held that the due process clause of the Fourteenth Amendment to the United States Constitution demands that the state prove every element of a crime beyond a reasonable doubt to the satisfaction of the jury.” (People v. Posey (2004) 32 Cal.4th 193, 208, fn. 6.) At one point, however, the prosecutor also stated: “Everybody charged with a crime has with them a presumption of innocence and a guarantee that if they refute charges brought against them, that they will have their day in court to make the People prove the case beyond a reasonable doubt.”
Defendant argues in effect that the “if they refute” language had the effect of telling the jury there is a lower burden of proof than the beyond a reasonable doubt standard when a defendant, like he, fails to present evidence to “refute” the prosecution’s case-in-chief. We see defendant’s point. The prosecutor should have avoided that comment. Nothing in the record suggests a deliberate or reckless misstatement of the law, but there is no requirement that “a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Turning to the heart of defendant’s claim—that he received ineffective assistance of counsel because counsel failed to object to the prosecutor’s remark—we will assume for purposes of discussion that defense counsel acted deficiently for failing to object to the remark. A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
Even if defense counsel was professionally deficient for failing to object to the prosecutor’s comment and seek an admonition by the trial court for the jurors to disregard it, we see no prejudice. The court instructed the jurors that “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.” “ ‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Thornton, supra, 41 Cal.4th at p. 441.) Accordingly, we presume they would have given primacy to the court’s instruction and not the prosecutor’s fleeting reference to refutation. To be misled with regard to the law, not only would the jurors have had to disregard the court’s instruction, but they would also have had to fail to notice that the prosecutor himself had acknowledged his office’s duty to prove the crime beyond a reasonable doubt. There is no reasonable probability that counsel’s failure to object to the remark had an adverse effect on the outcome, and hence no ineffective assistance of counsel.
III. Failing to Instruct Regarding Defendant’s Extrajudicial Statements
Defendant claims that the trial court erred in failing to instruct the jurors sua sponte on the need to view the extrajudicial statements he made to the sheriff’s deputies at the beach with caution. The People concede error but contend it was harmless. We agree.
As alluded to, Sheriff’s Deputy Hickey testified that defendant more than once denied possessing the Skoal tobacco tin in which they found methamphetamine. Before so testifying, the deputy asked for and received leave to refer to his written report before providing the testimony. The trial court did not instruct the jury how to weigh the evidence of defendant’s extrajudicial statements. (See CALCRIM No. 358.)
“When evidence is admitted establishing that the defendant made oral admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that such evidence must be viewed with caution.” (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) To the extent that defendant’s statements could be viewed as inculpatory, the court erred in failing to give the instruction.
The error, however, was harmless. Applying the reasonable probability test of People v. Watson (1956) 46 Cal.2d 818, 836, for errors under state law, we discern no prejudice. The prosecution’s case rested primarily on the deputies’ testimony about defendant’s actions in holding and discarding a chewing-tobacco tin that was found to contain methamphetamine. We find no reasonable probability that if the trial court had given the instruction the outcome would have differed. (Cf. People v. Henry (1972) 22 Cal.App.3d 951, 958-959 [prosecution’s case raised numerous questions].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.