Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C149505
NEEDHAM, J.
Tyrone T. Hill (Hill) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of possessing cocaine base for sale (Health & Saf. Code, § 11351.5). He contends reversal is required because: (1) the court denied his motion to suppress evidence; (2) the prosecutor committed prejudicial misconduct during voir dire, cross-examination of Hill, and closing argument; (3) the court admitted into evidence Hill’s 1997 conviction and 2004 arrest; (4) the court refused to give jury instructions he requested; and (5) the court imposed and then stayed sentence on a prior conviction enhancement, rather than striking it.
We will modify the judgment to make it clear that the prior conviction enhancement allegation is stricken. As so modified, the judgment will be affirmed.
I. Facts And Procedural History
An information charged Hill with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). It also alleged a prior felony conviction for sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), for purposes of both probation ineligibility (Pen. Code, § 1203.07, subd. (a)(11); Health & Saf. Code, § 11370, subds. (a) & (c)) and sentence enhancement (Health & Saf. Code, § 11370.2, subd. (a)). Hill denied the charge and the prior conviction allegations.
As described at length post, Hill filed a motion to suppress evidence of crack cocaine that was seized after an officer purportedly saw Hill throw it onto a roof. (Pen. Code, § 1538.5.) After a hearing, the court denied the motion. The court granted the prosecution’s motion to admit evidence of Hill’s January 2004 arrest for possession of crack cocaine for sale. The court denied the prosecutor’s motion to admit evidence of Hill’s 1997 conviction for sale of a controlled substance in the People’s case in chief, but warned that it would be admissible if Hill chose to testify. The matter proceeded to a jury trial.
A. Trial
The evidence at trial included the following.
1. Prosecution Case
Oakland Police Officer William Bergeron testified about the charged offense. Shortly before 1:00 a.m. on October 20, 2004, he and Oakland Police Officer Marcel Patterson were patrolling the area of 14th and Campbell Streets in West Oakland when they saw a man (later identified as Hill) standing at the bottom of a staircase in front of an apartment complex. Hill looked at the patrol car, immediately crouched, squatted, or dropped down partially out of sight, and began crawling up the stairs. When he reached the landing at the top of the stairs, he laid down. The fact that Hill appeared to be hiding from the police, late at night, in a “high narcotics area” was in Bergeron’s experience “consistent with somebody being involved in narcotics activity.”
Bergeron got out of the patrol car and walked through the open gate to the apartment complex. After Bergeron was nearly halfway up the stairs, he turned on his flashlight and shined it on Hill, who stood up, turned to the right, turned back toward Bergeron, and then made a “hook shot” throwing motion with his right arm toward the roof of the apartment complex. As Hill made the motion, he opened his fist and extended his fingers, and several small objects “consistent in size and shape with . . . rock cocaine” came out of Hill’s hand and landed on the roof.
Hill turned away from Bergeron and put his hand in front of his body, as if reaching for his waist area. Bergeron pulled out his gun and yelled at Hill to show his hands. After hesitating, Hill raised his hands. Bergeron handcuffed Hill, pat-searched him, and placed him in the patrol car. Bergeron recovered from Hill’s pants pocket a small burnt piece of marijuana cigarette and $92 (“two 20s, two 10s, five 5s, and seven 1s”) in denominations consistent with drug sales.
Bergeron requested a ladder truck from the fire department. He and firefighter Aaron Montes climbed the ladder to the roof, where Bergeron had seen Hill throw the suspected rock cocaine. Montes testified that Bergeron systematically searched the roof, picked up objects, and showed Montes the plastic bags he had collected. Bergeron recovered 10 small knotted and twisted plastic bags of suspected rock cocaine in the area where the objects had landed. In Bergeron’s experience, drug dealers do not leave their “drug stash” unguarded on inaccessible rooftops.
Bergeron delivered the seized objects to the police laboratory, which determined that they contained cocaine base. Oakland Police Officer Sekou Millington testified that, in his expert opinion, the cocaine base seized in this case was possessed for sale.
Oakland Police Officer Bernard Ortiz testified to a previous arrest of Hill in January 2004. Just before dusk on January 19, Officer Ortiz was conducting undercover surveillance of another location known for a high level of drug trafficking. Ortiz saw Hill standing in front of a building with his brother Tyrell and Andrew Douglas (Douglas). A man approached the entrance to the building, and Hill let him in. The man gave Tyrell money, and Tyrell took what looked like a small rock out of his mouth and gave it to him. The man looked at the rock, put it into his own mouth, and walked into a nearby residence.
Tyrell and Douglas went into the apartment building. A woman approached the building, and Hill let her in. The woman handed Hill money, and he handed her a small object that Ortiz suspected was cocaine base. She looked at it and drove away. As a patrol car turned the corner, Hill went inside apartment number 2. When Ortiz knocked on the door, a woman opened it and consented to a search of the apartment. Hill, Douglas, and Tyrell were inside. Hill and Tyrell were sitting on a couch, about three or four feet away from a closet shelf on which Ortiz found suspected cocaine base wrapped in six clear plastic “twists” inside a tennis shoe. Ortiz placed Hill, Tyrell, and Douglas under arrest for possession of cocaine base for sale. Ortiz later learned that the district attorney decided not to file charges.
2. Defense Case
Hill testified to his account of the October 2004 events underlying the charges in the instant case. He went to the apartment complex on 14th and Campbell Streets on the evening of October 19 to attend a going-away party. He smoked marijuana and drank, but he did not smoke or possess any crack cocaine. He went to a store and returned, and as he was standing at the bottom of the stairs about to enter the apartment he saw an approaching police car. Hill continued walking up the stairs to the apartment, because he did not want to be seen and harassed by the police. He was carrying a marijuana “blunt” in one hand and a wine cooler in the other. When the police car shined its “beam light” on him, he stopped and stood at the top of the stairs. Hill denied lying down. The officers got out of the car, and Officer Bergeron ascended the stairs. Bergeron handcuffed Hill and took him down the stairs without explanation. Hill denied throwing anything on the roof, possessing any drugs other than the marijuana, engaging in drug trafficking, or having any drugs “stashed” nearby. He also denied crouching down after seeing the police car.
Officer Bergeron testified that Hill had not been holding a crack pipe, an alcoholic beverage, or marijuana cigarette when Bergeron first saw him, and there were no alcoholic beverages on the stairs. He also testified that he had not turned on his patrol car’s spotlight.
Hill also denied using or selling crack cocaine on the evening of his January 19, 2004, arrest. By his account, Hill did not open the apartment entranceway for anyone, exchange money with anyone, or see anyone approach and talk to Tyrell. He did not possess the crack cocaine that Officer Ortiz recovered, the drugs found in the tennis shoe were not his, he did not know to whom they belonged, neither Tyrell nor Douglas were engaged in drug use or sales, and nobody in the apartment used crack cocaine. Hill also denied being a drug dealer. Specifically, he denied that he ever sold rock cocaine on the 1300 block of Campbell Street.
The prosecutor then asked Hill whether he had nonetheless pled guilty and been convicted of selling rock cocaine in September 1997 on the 1300 block of Campbell. Hill acknowledged his conviction, but insisted that he had not really sold any drugs and pled guilty merely to get out of jail. In particular, he denied that two undercover officers approached him and asked to buy a rock of cocaine, that he sold them cocaine, that he gave them a false name, that he had an alias of James Owens, and that the officers recovered an air pistol and some ammunition in the car. The prosecutor asked Hill whether the officers were incorrect in their account of the incident, and Hill said they were. When asked if Officer Bergeron was also incorrect when he testified that he saw Hill throw drugs onto the roof, Hill asserted: “Prior to these officers, I fought cases against all of them officers. Officer Bergeron, I did beat a gun case from him probably, what, last year or something. And the case that I caught in ’97, that was prior to the Riders case that I never got took off my record. Basically, I just pled guilty to a crime that I didn’t commit.”
Hill also acknowledged that he was arrested by Officers Patterson and Bergeron for selling crack cocaine again on January 28, 2004, but denied any guilt in that matter either. He recalled that he ran from the police when he saw them, but denied that he discarded a Glock pistol, insisting the officers were incorrect in that regard as well. Hill claimed that he “beat” the case before a jury was impaneled.
B. Jury Verdict and Sentence
The jury convicted Hill of possession of cocaine base for sale as charged. At a bifurcated proceeding, Hill admitted the prior conviction allegation. The court denied probation and sentenced Hill to the lower term of three years in prison.
This appeal followed.
II. Discussion
As mentioned, Hill contends: (1) the court erred in denying his motion to suppress the crack cocaine found on the apartment building roof; (2) the prosecutor committed prejudicial misconduct during voir dire, cross-examination of Hill, and closing argument; (3) the court erroneously permitted evidence of Hill’s 1997 conviction and 2004 arrests; (4) the court refused to give jury instructions he requested; and (5) the court improperly stayed his sentence on a prior conviction enhancement rather than striking the enhancement allegation. We address each contention in turn.
A. Denial of Motion to Suppress
Hill argues that the court should have suppressed evidence of the 10 items of crack cocaine Officer Bergeron found on the roof because, before Hill tossed them there, the officer had detained him on the stairway landing without a reasonable suspicion of criminal activity. In Hill’s words: “But for his illegal detention appellant would not have tossed the items in his hand.” The evidence at the suppression hearing demonstrates that Hill’s contention is without merit.
1. Suppression Hearing Evidence and Ruling
Officer Bergeron’s testimony at the suppression hearing was substantially identical to his testimony at trial. Around 1:00 a.m., he and Officer Patterson were patrolling a West Oakland neighborhood known to be a “high narcotics area, specifically in the sales of rock cocaine,” having “a high amount of violence, shootings, stabbings, assaults, that type of stuff.” Bergeron saw Hill standing alone at the bottom of the stairs of an apartment complex. As soon as Hill looked in the direction of the patrol car, he squatted or kneeled and, remaining in that position, began ascending the stairs. At the top landing, Hill lay down, even though “everything was still wet from [an] earlier rain.” Bergeron suspected that “something might not be right” due to Hill’s apparent attempt to hide from the police. The officers parked their patrol car and walked through the open gate to the foot of the stairs. While Patterson stayed below, Bergeron began walking up the stairs, turning on his flashlight to illuminate the top of the stairs towards Hill. Hill quickly stood up, “looked around nervously, and then with his right hand, which had been clinched in a fist, when he stood up, he made almost a hook – like a hook-shot type throwing motion, up towards the roof of the apartment complex.” Bergeron—who to that point had not said anything to Hill or displayed his firearm—saw several objects that looked like rock cocaine fly out of Hill’s hand when he made the “hook shot.”
Hill then turned his back to Bergeron, put his hands in front of his body, and appeared to be about to jump over the stair railing. (There was also room for Hill to walk past Bergeron on the stairs.) Because Bergeron could no longer see Hill’s hands and was concerned he might be reaching for a weapon, Bergeron took out his gun and yelled at Hill to show his hands. Hill at first hesitated but then complied and turned around. Bergeron handcuffed Hill and later recovered the rock cocaine from the roof.
In denying the suppression motion, the trial court found there had been no detention of Hill before he threw the crack cocaine onto the roof. The court stated: “First of all, I don’t conclude that there was a detention. At most, I think your argument would be based on what I conclude to be the facts that your client tossed the dope up onto the roof in anticipation of the detention that hadn’t happened yet. I think the act of the police walking toward him up the stairs, shining a flashlight on him at nighttime, doesn’t constitute a detention. They hadn’t said a word to him. And when he throws the dope in anticipation of being detained, basically, he’s relinquished any expectation of privacy, as to that dope, and the location where he threw it.”
In reviewing the denial of the motion to suppress, we defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. We exercise our independent judgment in determining whether, on those facts, the search or seizure was reasonable under the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)
2. Detention
The threshold question is whether Hill was detained (or “seized”), within the meaning of the Fourth Amendment, by the time he threw the crack cocaine on the roof. A person has been detained when, in the totality of the circumstances, a reasonable person would have believed that he was not free to leave. (United States v. Mendenhall (1980) 446 U.S. 544, 554.)
Hill was not detained by the police before he tossed away his cocaine. By that point, Officer Bergeron had merely begun to walk up the stairs and illuminate his flashlight in Hill’s direction. Neither Officer Bergeron nor Officer Patterson had said anything to Hill, gestured to Hill, or drawn a firearm. Merely illuminating Hill with a flashlight, under the circumstances, did not constitute a detention. (See People v. Perez (1989) 211 Cal.App.3d 1492, 1496 [“While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.]”].) A reasonable person in Hill’s position would have felt free to leave, such as by walking down the stairs past the officer. (See Mendenhall, supra, 446 U.S. at p. 554.)
3. Reasonable Suspicion
Even if Bergeron’s act of shining his flashlight on Hill constituted a detention, it was supported by a reasonable suspicion of criminal activity. “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.]” (Illinois v. Wardlow (2000) 528 U.S. 119, 123; internal citations and quotation marks omitted.)
Bergeron testified that the setting was a high-crime area known for drug dealing and violence. It was nearly 1:00 a.m. When Hill noticed the officers, he crouched down and began crawling up the stairs to an apartment complex. He then lay down on a landing even though it was wet from the rain. From these facts, it reasonably appeared to Bergeron that Hill was hiding from the view of the police. Bergeron, an officer of extensive experience and training, would have reason to suspect (and did suspect) that some sort of criminal activity was afoot, given Hill’s actions past midnight in a high-crime area. (See People v. Limon (1993) 17 Cal.App.4th 524, 532 [high-crime setting can lend meaning to a person’s behavior, and a police officer’s expertise “can attach criminal import to otherwise innocent facts”]. See also People v. Souza (1994) 9 Cal.4th 224, 233 [temporary investigative stop may be based on behavior also consistent with innocent activity].) For this reason as well, the trial court did not err in denying Hill’s motion to suppress.
The trial court also observed that, even if there was a detention, it would have been supported by a reasonable suspicion. The court cited Hill’s “hitting the deck at the top of the landing, when he sees the police approach him, and trying to be invisible. That’s the inference that I draw from it, and which means, in my mind, it’s completely reasonable for the police, at the very least, to suspect they might have a possible burglary in progress, among other possibilities.”
Hill’s reliance on People v. Perrusquia (2007) 150 Cal.App.4th 228 is misplaced. There, the defendant was sitting in his car at night in the parking lot of a convenience store in a high-crime area. When officers approached, he abruptly turned off the car engine, got out, and tried to walk quickly past the officers, claiming to be going to the store. (Id. at pp. 233-236.) The appellate court could not “disagree with the magistrate that the district attorney failed to” establish reasonable suspicion justifying a detention. (Id. at p. 234.) As the concurrence clarified, there was “no evidence [the defendant] repositioned himself in response to police presence.” (Id. at p. 235.) Here, by contrast, Hill reacted to the police suspiciously: he crouched down, began crawling up a wet staircase, and lay down on the wet surface at the top landing. He was hiding from police, not just attempting to walk away.
The trial court did not err in denying Hill’s motion to suppress.
B. Prosecutorial Misconduct
Hill makes three claims of prosecutorial misconduct: (1) implying during voir dire that Hill was eligible for probation and drug treatment; (2) asking Hill on cross-examination whether the officers were incorrect in their accounts of the events; and (3) showing the jury in closing argument a list of persons involved in Hill’s prior arrests and arguing that Hill’s defense required the jury to find those persons were lying.
1. Voir Dire
During voir dire, a prospective juror commented that the drug laws “need to be reformed” and “treatment is better approached than punishment.” After further questioning of that prospective juror, the prosecutor directed the following comment to all prospective jurors: “You raised some issue about punishment. And about [how] you feel that drugs and drug charges should be regulated by treatment instead of punishment. And I want to ask the jurors, all of you, a question, direct it to you all, as well. The judge is going to instruct you that you’re not to consider punishment in this case. That’s not the role of jurors. That’s the role of the judge. And we have a very fair judge here with many options available to him, if you find beyond a reasonable doubt that Mr. Hill is guilty of the charges.”
Hill contends that the prosecutor’s reference to the trial court’s “many options” unfairly implied that drug treatment was a possible sentencing choice in this case. We disagree.
The prosecutor never told the jury that drug treatment was a possible disposition for Hill. Even if his statement suggested that possibility, the statement was correct at the time: Hill had not admitted the prior conviction allegation and it was still possible, albeit unlikely, that Hill’s prior conviction would not be established and the court would have statutory authority to grant probation. (See Pen. Code, § 1203, subds. (b)(1) & (e).)
Hill argues that “because the prosecutor told the jury the judge was ‘fair’ the jury was led to believe that appellant would receive treatment in lieu of prison time if convicted.” No reasonable juror would reach that conclusion, which necessarily presupposes that only unfair judges send drug traffickers to jail.
Moreover, the overriding gist of the prosecutor’s comment was not that Hill might receive treatment instead of prison, but that the jury was not to consider the question of punishment, whatever those “many options” might be. This statement is fully in line with the law and presented no need for the court to admonish the jury or give a curative instruction. Furthermore, before deliberations the court instructed the jury “not discuss or consider the subject of penalty or punishment.” (See CALJIC No. 17.42.) We must presume the jury followed this instruction. (See People v. Fauber (1992) 2 Cal.4th 792, 823.) Under these circumstances, there is no reasonable likelihood that the jury construed or applied the prosecutor’s remarks in an objectionable manner. (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
Defense counsel later filed a motion requesting a curative instruction based on the prosecutor’s purportedly erroneous statement. The trial court refused. We discuss this issue post, along with Hill’s other claim of instructional error.
2. Cross-Examination
The trial court initially ruled in limine that the prosecution could not ask Hill whether prosecution witnesses were lying or mistaken when they testified. When the prosecutor pointed out the propriety of asking a witness whether another witness was incorrect rather than lying, the court indicated it would consider the matter if it arose at trial.
During cross-examination, Hill admitted that in 1997 he was arrested, pled guilty, and was convicted of selling rock cocaine. When he denied that he actually sold the cocaine, however, the prosecutor queried Hill about his account of the incident. After Hill denied some details, the prosecutor asked, “So these officers [in the 1997 case] were lying?” Upon objection by defense counsel, the prosecutor rephrased the question: “The officers then, if they would have written in their report that you sold them drugs, they would be incorrect?” Hill replied in the affirmative.
This portion of the examination was as follows: “Q. And the officers recovered some, an air pistol but also some ammunition from you in that car? [¶] A. No, they did not. [¶] Q. They didn’t? [¶] A. No. [¶] Q. So those officers were lying? [¶] [Defense counsel]: Objection, your honor. Improper question. [¶] [Prosecutor]: I’m sorry. Let me rephrase. [¶] Q. The officers then, if they would have written in their report that you sold them drugs, they would be incorrect? [¶] A. Yes, they would. [¶] Q. Just like Officer Ortiz would be incorrect when he says he saw you selling drugs? [¶] A. Yes. [¶] [Defense counsel]: Same objection, your honor. [¶] The court: Overruled. The answer may remain.”
The prosecutor continued to ask Hill about prior incidents, including five questions specifically inquiring whether officers were “incorrect” in their accounts: “Just like Officer Ortiz would be incorrect when he says he saw you selling drugs [on January 19, 2004]?”; “Just like Officer Bergeron would be incorrect when he said he saw you throw drugs [in October 2004]?”; “And you didn’t throw a gun, so those officers were incorrect that time, too [on January 28, 2004]?”; “So when Officer Ortiz testified you went into the apartment when police arrived [on January 19, 2004], he was incorrect about that?”; “He testified the African-American male you were with ran to the back [on January 19, 2004], he was incorrect about that?”
The prosecutor also asked Hill: “Q. Isn’t it true [that] when you’re caught selling cocaine, you’ll simply say that those people [who] caught you are just incorrect? [¶] A. No, that’s not true. [¶] Q. Isn’t it true when you’re caught with a gun on you, you’ll simply say those people are incorrect? [¶] A. No, that is not true.”
Hill contends this questioning constituted prejudicial misconduct, because it was designed to obtain Hill’s inadmissible lay opinion of the officers’ credibility. He relies on People v. Chatman (2006) 38 Cal.4th 344, 379, 381 (Chatman), which stated: “If a defendant has no relevant personal knowledge of the events, or of a reason that a witness may be lying or mistaken, he might have no relevant testimony to provide. No witness may give testimony based on conjecture or speculation. (See Evid. Code, § 702.) Such evidence is irrelevant because it has no tendency in reason to resolve questions in dispute. (Evid. Code, § 210.)” (Chatman, at p. 382, italics added.)
Here, however, Hill did have personal knowledge of his own conduct in the matter for which he stood trial and the earlier incidents. Asking whether the police officers were “incorrect” simply invited Hill to confirm or clarify his testimony and was not intended to elicit inadmissible evidence.
Hill’s reliance on People v. Zambrano (2004) 124 Cal.App.4th 228 (Zambrano) is misplaced. In Zambrano, the prosecutor asked the defendant whether the officers were lying about every aspect of their testimony that differed from the defendant’s testimony, and “used the questions to berate defendant before the jury and to force him to call the officers liars in an attempt to inflame the passions of the jury.” (Id. at p. 242.) Nothing remotely like that occurred here. The prosecutor merely asked whether the officers were correct, and withdrew his only question that asked whether an officer was lying.
Even if the prosecutor’s questions could be interpreted as asking, in effect, whether the officers were lying, Hill fails to establish prejudicial error. Questions inquiring whether police have lied may often be problematic because they call for the witness to testify not only that the police account was inaccurate, but that the police knew their statements were false. Such questions are nonetheless permissible if, rather than requiring the defendant to speculate as to the officer’s state of mind, the defendant has suggested that he knows of a reason they might have testified falsely. (Chatman, supra, 38 Cal.4th at pp. 381-383. See Zambrano, supra, 124 Cal.App.4th at p. 241 [questions were deemed improper where the defendant, a stranger to the officers, had no basis for insight into their bias, interest, or motive to be untruthful]; Chatman, supra, 38 Cal.4th at p. 381 [distinguishing Zambrano on this basis].) Here, Hill suggested that the officers in the instant case had a motive to lie because he had “fought cases against all of them officers” and had previously “beat a gun case” against Officer Bergeron. Indeed, when the prosecutor asked Hill whether Officer Bergeron was incorrect in his testimony that he saw Hill throw the drugs onto the roof in the instant case, Hill responded: “Prior to these officers, I fought cases against all of them officers. Officer Bergeron, I did beat a gun case from him probably, what, last year or something. And the case that I caught in ’97, that was prior to the Riders case that I never got took off my record. . . .”
In the final analysis, Hill took the stand and placed his veracity at issue. He urged that his account of the charged offense and the prior arrests should be believed, and that the police officers’ testimony should not. The jury had to decide who was more credible, and the prosecutor’s inquiry into the details of Hill’s story was germane to Hill’s credibility. Hill has failed to establish prosecutorial misconduct.
3. Closing Argument
During closing argument, the prosecutor stated: “. . . Mr. Cramer [defense counsel] is going to have to take a very unenviable position with you. He’s going to have to stand up in front of you and try to convince just one of you . . . not only to believe his client, but in order to believe his client, you have to believe that all these officers are perjuring themselves. You have to believe that officers are planting drugs. Mr. Cramer has to convince you that this is all untrue and that there’s all this deceit and corruption and lies and perjury going on. It’s just not there. [¶] So he’s going to have to tell you that in order for you to believe his client, what his client said on the stand was that the officers that arrested him in 1997 for which he pled guilty to a felony offense, they’re lying.” Defense counsel objected that the prosecutor was “arguing facts not in evidence.” The court overruled the objection.
The prosecutor continued: “He has to convince you that Officer Bernard Ortiz lied about his own observations of the defendant selling crack in January of 2004, that he perjured himself on the stand. He has to argue to you that the firefighter, Officer Montes, lied to us about the corroboration he gives us to Officer Todd Bergeron. And he’s got to tell you that Officer Bergeron himself not only perjured himself on the stand but planted evidence. Planted evidence. This is a question that’s going to be why. Why would these officers, all of these people, risk their jobs, their livelihoods, their families? Why would they get up here on the stand, not just here at trial, but you heard about hearings before, and lie under oath exposing themselves to felony convictions? To wrongfully convict [Hill]? Does that make sense to you? Is that reasonable?” (Italics added.)
The prosecutor added: “There is a theory, and it’s called Occams’ Razor. . . . essentially it’s this: That very often, the simplest explanation is the truthful one, and a conflict[ing] one, the one that involves coincidence after coincidence, the one that involves allegations of misconduct, conspiracy, is probably false. [¶] In order to believe the defense, you have to believe that everybody is out to get defendant Hill, and he’s done nothing wrong throughout his entire life, and that all of these officers, all of these arrests are wrongfully committed, that he’s done nothing.” (Italics added.) Around this point, the prosecutor apparently displayed a slide or chart on a screen, listing the names of officers from Hill’s prior arrests in 1997 and 2004. Defense counsel objected: “Objection, Your Honor. I’d like that screen deleted. There’s officers from 2004, from ’97. We’ve had no evidence as to who they were. He’s argued facts not in evidence by that screen there.” (Italics added.) The court agreed: “Yes. I don’t think there was much testimony as to those details. So just ignore that part.” The prosecutor agreed to “advance it.”
We find no prosecutorial misconduct. As to defense counsel’s initial objection that the prosecutor was arguing facts not in evidence, the facts that Hill was arrested in 1997 and pled guilty to a felony offense were in evidence, as were Hill’s repeated assertions that the officers were incorrect in their accounts of the charged crime and the prior incidents. The prosecutor was merely characterizing Hill’s denials as a defense argument that the officers were lying. To the extent the prosecutor might have suggested that Hill actually testified that the officers were lying (rather than testifying that the officers were incorrect), no undue prejudice arose. The jury was instructed that “statements made by the attorneys during the trial are not evidence.” We presume that the jury followed the court’s instruction and were not misled by this minor misstatement of the evidence. (See Fauber, supra, 2 Cal.4th at p. 823.)
Defense counsel’s second objection—regarding the display of the names of the officers who had arrested Hill in 1997 and 2004—fares no better. While the parties seem to agree that not all of the names were in evidence, the trial court promptly directed the jury to “ignore that part.” As mentioned, before deliberations the jury was also instructed that statements by the attorneys did not constitute evidence. Again, no undue prejudice arose.
Hill asserts that the court’s direction that the jury “just ignore that part” did not advise the jury to disregard the argument of the prosecutor, as opposed to the screen viewed by the jury. Again, however, the prosecutor’s argument was merely a characterization of what he believed the defense would assert in closing: that all of the officers had testified falsely. As it turned out, the defense was quick to point out to the jury that it was not pursuing that theory at all; indeed, defense counsel asserted that he did not have to call anyone a liar in order for Hill to be acquitted.
Lastly, Hill contends that the prosecutor improperly vouched for the credibility of prosecution witnesses, by asserting they would be risking “their jobs, their livelihood, their families” if they lied. “A prosecutor may make ‘assurances regarding the apparent honesty or reliability of’ a witness ‘based on the “facts of [the] record and the inferences reasonably drawn therefrom.” ’ [Citation omitted.] But a ‘prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.’ [Citation omitted.]” (People v. Turner (2004) 34 Cal.4th 406, 432-433. Italics added.)
Here, the prosecutor did not argue that the officers and firefighter would lose their jobs and families if they lied (which was not in evidence), but simply pointed out that the evidence disclosed no reason why these witnesses would “risk their jobs, their livelihoods, their families” to lie under oath about Hill. It is within the realm of fair argument to contend that police officers and firefighters would risk such consequences if they in fact engaged in a conspiracy to criminalize a defendant through repeated false arrests and prevarication. In any event, any prejudice arising from the prosecutor’s comments was nullified when defense counsel informed the jury that he was not asserting a theory that the officers were lying. Hill fails to establish prejudicial misconduct.
C. Prior 1997 Conviction and 2004 Arrest
The prosecutor moved in limine to admit evidence of Hill’s prior drug offenses as circumstantial evidence of Hill’s intent in the instant case. The court granted the motion as to Hill’s January 2004 arrest on the ground it was relevant to “his intent, his knowledge and his possession in an amount sufficient to be used for sale,” noting that the 2004 case involved an attempt to conceal contraband, similar to his alleged attempt to dispose of contraband in this case. As to the 1997 conviction for Health and Safety Code section 11352 (sale of a controlled substance), the court denied the prosecutor’s motion, considering the underlying offense to be more of a “routine hand-to-hand sale” that would be “more in the category of propensity evidence, at least in terms of the case in chief.” However, the court admonished: “but again, remember—I know you [counsel] know this, but this is [for] Mr. Hill’s benefit. If you testify, . . . it’s probably all going to come in.” The court also explained that the 1997 conviction was a crime of moral turpitude, “highly relevant to the defendant’s believability,” which should likely be “sanitize[d].” In addition, the court warned, the conviction might be admissible to show intent under Evidence Code section 1101, depending upon the nature of Hill’s testimony. The court stated: “I think the jury—if he testifies, I would suspect the jury, depending on what he says will probably hear all about it.”
Hill testified. Not only was his 2004 conviction admitted, his 1997 conviction was admitted into evidence without being sanitized, and the prosecutor was allowed to argue both his 1997 conviction and his 2004 arrest evinced Hill’s intent to sell the cocaine that had been in his possession. Hill now urges this was prejudicial error. It was not.
1. Impeachment With Unsanitized 1997 Prior Felony Drug Conviction
On cross-examination, Hill denied that he sold rock cocaine previously on the “1300 block of Campbell Street.” After an off-the-record discussion between the court and counsel, the following exchange occurred: “Q. So it’s your testimony, Mr. Hill, you don’t sell drugs on that block? [¶] A. That’s correct. [¶] Q. Mr. Hill, you were arrested in 1997? [¶] A. Yes. [¶] Q. And in 1997, you pled guilty to a felony offense for selling rock cocaine?” [¶] A. Yes, I did.” (Italics added.) Hill further acknowledged the offense was for selling rock cocaine on, indeed, the 1300 block of Campbell Street. Defense counsel did not object.
Hill nonetheless argues that the evidence of his 1997 conviction for sale of cocaine should have been sanitized by referring to it as a “felony conviction” or “a conviction involving drugs,” instead of a “felony offense for selling rock cocaine,” due to its similarity to the charged crime. (See People v. Beagle (1972) 6 Cal.3d 441, 453.) We disagree.
In the first place, although the defense requested in limine that the 1997 conviction be sanitized and the court was inclined to do so, defense counsel did not object when the prosecutor asked Hill whether he was guilty to “a felony offense for selling rock cocaine.” Because the defense neither objected nor requested an admonition or instruction when the matter arose, Hill cannot now complain that the court erred.
In any event, as defense counsel perhaps recognized in declining to object, the prosecutor’s question was proper. As a felony, Hill’s 1997 conviction was admissible for general credibility purposes (Evid. Code, § 788); as things stood in limine, perhaps sanitization would be required. But once Hill took the stand and denied ever selling cocaine—testimony that drew no objection—his 1997 conviction for sale of cocaine was admissible not just as a felony for general impeachment purposes, but as specific impeachment of his denial of having sold rock cocaine. Under those circumstances, it was not prejudicial error for the 1997 conviction to be referred to as a felony offense “for selling rock cocaine.”
2. Use of the 1997 Conviction to Argue Intent in Closing Argument
Before closing arguments, the court denied defense counsel’s request to limit the prosecutor’s discussion of Hill’s September 1997 conviction to Hill’s credibility, rather than his intent in possessing the drugs. Sure enough, in closing argument the prosecutor told the jury: “But we don’t just have that one arrest [referring to the 2004 arrest for sale of crack cocaine]. We have his conviction for sales of crack cocaine in 1997. He is a convicted felon for selling crack. Perhaps we need no other evidence of his intent in this case.”
The court did not err. Pursuant to Evidence Code section 1101, evidence of a criminal defendant’s prior acts may be admitted to prove a material fact other than the defendant’s character (or propensity to commit the charged crime)—such as his intent, where intent comprises an element of the crime. (Evid. Code, § 1101, subd. (b). See People v. Ewoldt (1994) 7 Cal.4th 380, 394 fn. 2.) The “least degree of similarity” between the prior act and the charged offense is required for the prior act to be admissible to prove intent. (Ewoldt, supra, 7 Cal.4th at p. 402.)
Hill’s 1997 conviction was for sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a).). His charged crime was for violation of Health and Safety Code section 11351.5, possession of cocaine base for sale. The charged crime required proof that Hill, among other things, possessed the drugs with an intent to sell. The evidence of his conviction for the sale of drugs in 1997 was relevant to whether he also had an intent to sell the drugs in his possession in the instant case. (Evid. Code, § 1101, subd. (b).) Hill’s 1997 conviction was admissible on the issue of intent.
Hill’s arguments to the contrary are unpersuasive. First, he argues that intent was not really an issue at all, because defense counsel advised the court in limine that intent was not an issue and conceded to the jury in closing argument that, if the rocks of cocaine found on the roof belonged to Hill, they were possessed for sale. However, at the time the trial court ruled on the use of the conviction and the prosecutor argued the conviction as probative of intent, Hill’s intent was still at issue: the jury was to be instructed (and was instructed) on the prosecutor’s need to prove intent to sell beyond a reasonable doubt, and the defense concession had not yet been made to the jury.
Indeed, even in this appeal Hill argues that he was denied his right to present his defense to the charge because the trial court did not instruct the jury with his proposed special instruction that the prosecutor had to prove he possessed the controlled substance with the intent to sell it. (See post.)
Next, Hill argues that the 1997 conviction was not sufficiently similar under Ewoldt to support the inference that he harbored the same intent in each instance. Specifically, he argues, since he denied the drug sale underlying the 1997 conviction, none of the facts of the 1997 conviction were in evidence, and there was thus no basis for the jury to infer that he harbored a similar intent. We disagree. The evidence showed that his 1997 conviction was for selling rock cocaine in the area at which he allegedly possessed cocaine base with intent to sell in this case. The prosecutor’s failure to establish the similarity between the two incidents in greater detail may go to the weight of the evidence, but not its admissibility. (See Ewoldt, supra, 7 Cal.4th at p. 402 [“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent”].)
Lastly, Hill argues that evidence of his September 1997 conviction was more prejudicial than probative, because the prior conviction was remote in time and suggested his propensity to commit the charged crime. (Evid. Code, § 352.) The “prejudice” referred to in Evidence Code section 352, however, applies not to evidence that is damaging to the defense case—such as proof of his intent—but to evidence that tends to inflame the jury against the defendant and motivate jurors to find him guilty for that reason. (People v. Branch (2001) 91 Cal.App.4th 274, 286.) Evidence of Hill’s September 1997 conviction was not inflammatory. Furthermore, the jury was repeatedly admonished not to use the prior conviction as evidence of propensity. Defense counsel informed the jury that the 1997 conviction could be used only for intent and knowledge and credibility. The trial court likewise instructed the jury that evidence of Hill’s prior offenses “may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you for the limited purpose of . . . determining if it tends to show the existence of the intent, which is a necessary element of the crime charged, or that the defendant had knowledge of the nature of things found in his possession.” The court also instructed the jury that evidence of Hill’s prior conviction could only be considered in deciding Hill’s credibility and the conviction did “not necessarily destroy or impair a witness’s believability.” The admission of the 1997 conviction was not unduly prejudicial.
3. Admission of January 2004 Arrest
Hill contends the court erred in allowing evidence of Hill’s January 2004 arrest as probative of his intent. Primarily he argues that intent was not at issue. As we have explained post, however, intent was still at issue when the evidence was admitted.
Hill also maintains that, because he was not prosecuted for the 2004 incident, there was a high risk that the jury would use it as propensity evidence, particularly due to its recency, the similarity to the charged crime, and the possibility that the jury would want to punish him for the 2004 crime that went unpunished. We disagree. This is not an instance in which the jury would want to retaliate against Hill in the belief he got away with a heinous crime. Rather, the January 2004 incident involved a low-level drug sale that Hill denied and the prosecutor opted not to pursue. In addition, both the court and defense counsel advised the jury that the evidence could not be used for purposes other than Hill’s intent or knowledge. The record gives us no reason to suspect that the jury might have disregarded the court’s limiting instruction and used the evidence of the 2004 arrest improperly.
D. Refusal to Give Special and Curative Instructions
1. Special Instructions
At the request of defense counsel, the court instructed the jury pursuant to CALJIC No. 12.01, regarding the elements of the charged crime. The instruction read in part: “Defendant is accused of having committed the crime of illegal possession for sale of a controlled substance, . . . Every person who possesses for sale cocaine base, a controlled substance, is guilty of a violation of [Health & Saf. Code, § 11352] . . . 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’ doesn’t not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons. ‘Sale’ means any exchange of cocaine base, for cash, favors, services, goods or other noncash benefits. . . . In order to prove this crime, each of the following elements must be proved: 1. A person exercised control over or the right to control, an amount of cocaine base, a controlled substance; 2. A person knew of its presence; 3. That person knew of its nature as a controlled substance; 4. The substance was in an amount sufficient to be used for sale or consumption as a controlled substance; and 5. That person possessed the controlled substance with the specific intent to sell the same.” (Italics added.)
The court also instructed the jury, pursuant to the defense’s request, with CALJIC No. 17.10 regarding the lesser offense of simple possession of cocaine base. That instruction provided in pertinent part: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless convict him of the lesser crime of possession of a controlled substance, if you are convinced beyond a reasonable doubt that the defendant is guilty of the lesser crime. [¶] The crime of simple possession of cocaine base is lesser to that of possession for sale of cocaine base . . .” The court then instructed on the elements of simple possession of cocaine base.
The court instructed the jury on reasonable doubt as well, pursuant to CALJIC No. 2.90, in accord with defense counsel’s request: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. [It] is that state of the case which, after the entire comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.” (Italics added.)
In addition to these instructions, however, defense counsel also requested the following instruction: “The prosecution has the burden of proving beyond a reasonable doubt that the defendant possessed the controlled substance with the intent to sell it. Unless the evidence proves this fact beyond a reasonable doubt, you must find the defendant not guilty.” The court denied this request, finding that the proposed instruction correctly stated the law but the subject matter was “adequately covered by the instructions we’re giving.”
The trial court did not err. The court accurately and adequately instructed the jury with the elements of the charge, reasonable doubt, and lesser included offenses. Hill’s redundant “special” instruction added nothing of substance, and he fails to demonstrate how its absence precluded him from presenting a defense.
Hill’s assertion that the absence of his requested instruction precluded him from presenting his defense is perplexing, given the defense’s statement to the court in limine, as well as in this appeal, that intent was not an issue in the case.
2. Curative Instruction
As discussed ante, the prosecutor referred in voir dire to the jury’s duty not to consider punishment in deciding Hill’s guilt. A week later, defense counsel requested an instruction to cure the purported prejudice of the prosecutor’s comment. The proposed instruction read: “During jury selection, you may have heard the prosecution discuss a ‘wide range of potential sentencing choices’ open to me if the defendant is convicted. This is inaccurate. If the defendant is convicted as charged, he will be sentenced to state prison, for a minimum of three years. Probation and drug treatment are not options in this case.” Hill contends that the court erred in declining to give the instruction.
According to Hill, “the prosecutor erroneously stated that appellant, if convicted of the charge against him, could receive probation.” The prosecutor said no such thing. See ante.
Hill’s argument is meritless. The prosecutor’s statement correctly emphasized that the jury should not consider punishment. To the extent anyone could read into his comments that Hill might receive treatment rather than jail time if guilty, the court’s subsequent instruction “not to discuss the subject of penalty or punishment” eliminated any potential prejudice. Far from curing any problem, Hill’s proposed instruction would have created a problem by suggesting to the jury that it should consider the potential punishment in deciding whether or not Hill was guilty, contrary to both the law and the court’s CALJIC No. 17.42 instruction.
E. Sentencing
At sentencing, the trial court denied probation on the ground that Hill was ineligible pursuant to Health and Safety Code section 11370. The court stated: “And as [defense] counsel points out, Mr. Hill is not eligible for probation pursuant to . . . Health and Safety Code Section 11370. Probation shall not be granted in any case such as this with the prior conviction. [¶] And I will indicate for the record that but for that law, I would seriously consider granting probation. But since you’re ineligible, probation is denied.” At the prosecutor’s request, the court also indicated that probation ineligibility was established under Penal Code section 1203.07.
The court imposed the low term of sentence: “In terms of the actual sentence, I’m going to sentence you to the low term, and the reason I’m doing that is that your criminal record is relatively minor, and it had been a rather significant period of time since your last conviction. [¶] So, you’ll be sentenced to three years in prison . . ..” The court also confirmed with defense counsel that Hill was entitled to 160 days credit.
The following exchange subsequently occurred: “THE COURT: Oh yeah, I’m not giving him the extra three years on the prior, for the same reason I gave him the low term. Do I have to give him that instead? [¶] DEFENSE COUNSEL: I believe so, Your Honor. [¶] THE COURT: All right, another three years, but that will be stayed pending completion of the three years. So whatever you need for your abstract. You don’t need to do more than three years.”
According to Hill, by giving him “another three years” but “stay[ing]” it, the court was staying the prior conviction enhancement of Health and Safety Code section 11370.2. Noting that a prior conviction enhancement cannot be stayed, but can be stricken under Penal Code section 1385, Hill urges that we remand the matter for the trial court to exercise its discretion to strike the prior. (See People v. McCray (2006) 144 Cal.App.4th 258, 267-268 [reversing the order staying enhancement and remanding for a new sentencing hearing so the trial court could exercise its discretion under Pen. Code, § 1385].)
We agree with Hill’s interpretation of the record. In addition to the court’s statement recorded in the reporter’s transcript, the clerk’s minutes of the sentencing hearing note: “3 years on 1st prior - stayed.” (Italics added.) This suggests the court was imposing but staying the three-year enhancement mandated by Health and Safety Code section 11370.2, subdivision (a), for Hill’s prior conviction under Health and Safety Code section 11352.
Respondent has a different construction of the record. According to respondent, when the court said “another three years, but that will be stayed,” the court was staying the probation ineligibility allegation under Penal Code section 1203.07, subdivision (a)(11), and that it struck the Health and Safety Code section 11370.2, subdivision (a) enhancement. Consistent with this view, the abstract of judgment indicates that an enhancement under Penal Code section 1203.07, subdivision (a)(11) was stayed, not stricken. However, the reference to Penal Code section 1203.07, subdivision (a)(11) appears erroneous. Subdivision (a)(11) of Penal Code section 1203.07 does not provide an enhancement, but instead precludes probation and suspension of sentence for a person who, like Hill, is convicted of violating Health and Safety Code section 11351.5 and has a prior conviction for Health and Safety Code section 11352. The reference to Penal Code section 1203.07, subdivision (a)(11), should be deleted from the abstract of judgment.
Despite their different views of the record, it appears that the parties are in agreement on the disposition: the court either should strike the Health and Safety Code section 11370.2 enhancement (Hill’s argument) or it already struck that enhancement (respondent’s argument). Because the record is clear that the trial court intended for Hill to serve “[no] more than three years,” and there is no dispute that as a matter of law the prior conviction enhancement can be stricken but not stayed, we need not remand the matter to the trial court to exercise its discretion in striking the prior conviction enhancement. Instead, we will modify the judgment to reflect that the prior conviction enhancement is stricken and order that the reference to Penal Code section 1203.07, subdivision (a)(11), be deleted from the abstract of judgment.
F. Cumulative Prejudice
Hill contends he was prejudiced by the cumulative effect of the errors he has alleged. Because he has not established any errors (except as addressed by our modification of the judgment), his claim of cumulative prejudice fails. (See People v. Calderon (2004) 124 Cal.App.4th 80, 93.)
III. DISPOSITION
The judgment is modified to reflect that the prior conviction enhancement allegation under Health and Safety Code section 11370.2 is stricken; the reference to Penal Code section 1203.07, subdivision (a)(11), shall be deleted from the abstract of judgment. As so modified, the judgment is affirmed.
We concur. JONES, P. J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.