Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR 182854, VCR 185686.
Pollak, J.
Defendant Marvin James Hatch appeals from a judgment convicting him of one count of possession for sale of cocaine base and sentencing him to seven years in prison. He contends that the court erred by failing to give a limiting instruction regarding the proper use of hearsay evidence relied on by an expert witness and that the prosecutor committed misconduct in the closing argument. We affirm.
Defendant also filed a notice of appeal from an order revoking his probation in a separate drug-related case and sentencing him to three concurrent four-year prison terms. However, defendant has not asserted any error with regard to the probation revocation proceedings.
Factual and Procedural History
Defendant was charged by information with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The information also alleged that defendant had three prior convictions for selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).)
At trial, Vallejo Police Detective William Badour testified that on the evenings of August 11 and 12, 2006, he conducted surveillance on defendant’s apartment. During the three hours that he watched the apartment on August 11, he saw 14 people knock on the door, enter and leave within five minutes. During the three hours he observed the apartment the following night, he saw eight people do the same thing. Based on his experience with narcotic sales, he believed that this activity was consistent with narcotics being sold from the residence. Badour was unable to see who was opening the door.
Police Officer John Garcia testified that around 5:20 p.m. on August 18, 2006, he stopped defendant and his brother on the street in an area known for narcotic sales. Garcia found small pieces of suspected rock cocaine in the brother’s pocket, but no narcotics on defendant.
After defendant’s arrest, Badour searched defendant’s apartment. In defendant’s bedroom he found a plastic bag with four individually wrapped pieces of base cocaine, totaling 1.11 grams. He also found a small diaper bag in the corner of the bedroom in which he found a plastic bag containing 11.35 grams of base cocaine, and a digital scale. Badour believed that the cocaine was possessed for sale and estimated that it had a street value of $500. In the kitchen, Badour found 15 to 20 clear sandwich baggies with the corners torn off, which supported his belief that the cocaine was intended for sale.
Badour testified that $576 was found on defendant when he was searched at the police station after his arrest. After refreshing his recollection by reviewing a report, he testified that the denominations include one $50 bill, eleven $20 bills, six $10 bills, forty-two $5 bills, and thirty-six $1 bills. Badour opined that these denominations were important because rocks of cocaine base would sell on the street for $10 to $20 dollars. On cross-examination, Badour acknowledged that he was not present when the money was recovered or counted and that he had never personally observed the money.
Badour interviewed defendant after his arrest. Defendant admitted that he lived at the apartment and that he put the cocaine into the diaper bag earlier that day.
The jury found defendant guilty as charged. Thereafter, the court found true the allegation that he had suffered three prior convictions for selling cocaine. The court sentenced defendant to the midterm of four years for the offense and a consecutive three-year term for the enhancements. Defendant filed a timely notice of appeal.
Discussion
1. The jury was properly instructed.
Detective Badour testified that officers found $576 on defendant when he was arrested and that the denominations of the bills supported his opinion that defendant possessed the narcotics for the purpose of sale. On cross-examination, defendant’s attorney moved to strike Badour’s testimony on the ground that it was hearsay. The trial court overruled the objection, stating in the hearing of the jury, “it goes to his expert opinion. Likewise, the money issue goes to—it’s hearsay, but as an expert, he’s allowed to rely on it.” Defense counsel began to ask the court to require the facts to be expressed hypothetically, but then withdrew his request, stating, “the court’s comments have made it clear. I withdraw my comment. [¶] Thanks, Your Honor.”
During closing arguments, the prosecutor briefly mentioned that $576 was found on defendant as one of many facts on which Badour based his opinion that defendant possessed the narcotics for sale. Defendant’s attorney responded as follows: “One of the factors that the officer wants you to rely on for his opinion is the money and denominations. [¶] Well, you know what? I asked him some follow-up questions of that, ‘Did you get that money off [defendant]?’ [¶] ‘No.’ [¶] ‘Did you see that money come off [defendant]?’ [¶] ‘No.’ [¶] ‘Were you present when that money was taken off [defendant]?’ [¶] ‘No.’ [¶] That’s hearsay. He doesn’t know about that money. Now, as an expert, he’s allowed to rely on hearsay and say, ‘Well, if he had $576 on him in those denominations, that would make me think he’s selling drugs,’ but you know what? If you go back, there’s no evidence in front of you from any witness who says that they know for sure that [defendant] had that much money in those denominations. [¶] This Detective is saying, ‘This is what I’ve heard happened’ and he can use that to base his opinion on, but that doesn’t mean that that fact’s been established for you. You need to have heard from the officer who took that money off [defendant] and have that officer come in here and tell you, ‘I counted the money. I wrote it down. I wrote the report’ and Detective Badour was not the one who did that, and he admitted that. [¶] So you know what that means? That means, throw out any consideration of the money, since it’s hearsay and not in evidence in front of you. You can’t even consider it. You shouldn’t even talk about it.”
The prosecutor made two limited references to the money in closing arguments. First, he stated, “So, . . . you have Officer Badour’s opinion. He’s an expert, and you have all these facts: $576 that was—Officer Badour, Detective Badour testified that is part of his opinion, that was found on [defendant] . . . .” In rebuttal, he again noted, “you have the money that [defendant] had on his person that became part of Officer Badour’s opinions.”
The jury was instructed with CALCRIM No. 332 as follows: “A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”
Defendant argues that CALCRIM No. 332 was insufficient and that the court should have given either CALCRIM No. 303 or CALCRIM No. 360, or both. CALCRIM No. 303 provides, “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” CALCRIM No. 360 provides “<Insert name> testified that in reaching (his/her) conclusions as an expert witness, (he/she) considered [a] statement[s] made by <insert name>. [I am referring only to the statement[s] <insert or describe statements admitted for this limited purpose>.] You may consider (that/those) statement[s] only to evaluate the expert’s opinion. Do not consider (that/those) statement[s] as proof that the information contained in the statement[s] is true.” Defendant’s attorney requested that No. 303 be given but did not request No. 360. Because the court had not previously stated directly that testimony was being admitted for “a limited purpose,” No. 303 would not have been meaningful to the jury. Although the court did not have a sua sponte obligation to give the limiting instruction that was not requested (Evid. Code, § 355; People v. Simms (1970) 10 Cal.App.3d 299, 311), we nonetheless will consider defendant’s argument with respect to CALCRIM No. 360 in light of his additional claim that he received ineffective assistance of counsel based on his attorney’s failure to request the additional instruction.
“The law governing this issue is well settled. ‘Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] . . . [¶] . . . And because Evidence Code section 802 allows an expert witness to “state on direct examination the reasons for his opinion and the matter ... upon which it is based,” an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, “has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.” [Citation.] A trial court also has discretion “to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.” [Citation.]’ [Citation.] [¶] ‘Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (People v. Bell (2007) 40 Cal.4th 582, 608.)
As set forth in full above, the jury was instructed pursuant to CALCRIM No. 332 that it “must decide whether information on which the expert relied was true and accurate” and it “may disregard any opinion that [it] find[s] . . . unsupported by the evidence.” Although not using the words “limited purpose,” the court did indicate during the mid-trial colloquy with defense counsel that the testimony concerning the currency, although hearsay, related to the detective’s opinion. In his closing argument, defendant’s attorney very clearly explained that there was no admissible evidence regarding the amount or denominations of money taken from defendant at the time of his arrest. The prosecutor did not dispute the defense attorney’s argument. Even though the trial court might well have given CALCRIM No. 360, the essence of the instruction was contained in No. 332 and the failure to give the more expansive instruction was not prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.) There is little likelihood that the jury improperly relied on the hearsay statements as substantive evidence of defendant’s guilt or that, in view of the substantial evidence, the outcome of trial would have been affected by the inclusion of the additional instruction.
2. The prosecutor did not commit misconduct in his closing argument.
Defendant contends that the prosecutor committed prejudicial misconduct by commenting on his “failure to deny his guilt to the police or to present his own testimony at trial” in violation of his Fifth Amendment privilege against self-incrimination. We disagree.
Defendant’s defense to the charged crimes was that he possessed the cocaine but he was not selling it. Consistent with this defense, his attorney argued in closing that “one reasonable explanation [for why the cocaine was in his diaper bag] is exactly what [defendant] told the police, and exactly what I told you when this case started: That sure, he possessed that cocaine. He put it in that bag, but he was not selling it.”
In rebuttal, the prosecutor argued, “[Defendant’s attorney], I think, either said or implied that somewhere during [defendant’s] interview, that he said that he was not possessing these drugs for sale or that these drugs belonged to [his brother], the four baggies. [¶] . . . [¶] . . . [T]here’s a court reporter taking down every word said in this courtroom. She’s preserving the evidence in this case, the testimony in this case. You can go back, look at the transcript of Officer Badour’s testimony. There is no statement from [defendant] saying he is not a drug dealer. [¶] There is no statement from [defendant] during his interview with Officer Badour that these drugs belonged to [his brother]. The statements that are in evidence that were testified by Detective Badour is that the defendant admitted that he placed this bag in the diaper bag and that he knew it was cocaine. [¶] The only person that said [defendant] is not a drug dealer is not possessing these drugs for sales is [defendant’s attorney]. [¶] It’s the only time that statement ever appears is in [defendant’s attorney’s] closing statement. That is not ever testified to with either Officer Garcia or Officer Badour. [¶] Okay. That’s my point here, that there’s nothing that was ever said, . . . there’s no statement in evidence that -- that he ever stated that he was not possessing these drugs for sale. [¶] You can go, look back, look at the testimony of Officer Badour. . . . [I]t was implied by what [defendant’s attorney] said [defendant] said. [¶] This, no, it’s not. That statement is not in evidence. You can go back, look at the record.”
The prosecutor’s comments were proper response to the statement made by defendant’s attorney that defendant told the police he was not selling drugs. The prosecutor may have belabored the point, but defendant did not object and thus waived his claim on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 30-31.) Moreover, we reject defendant’s argument that the failure to object constituted ineffective assistance of counsel, because the prosecutor was entitled to respond to what he perceived as a misstatement of the record by defendant’s attorney. An objection would not have been well taken. While perhaps longer than necessary, the prosecutor’s comments were relatively benign. There is no reason to believe that the result of the trial would have been different had there been an objection. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
Disposition
The judgment is affirmed.
We concur:McGuiness, P. J., Siggins, J.