Opinion
G053875
05-15-2018
THE PEOPLE, Plaintiff and Respondent, v. RONNY GERARDO MIDENCE-ALLEN, Defendant and Appellant.
Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF2664) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
Ronny Gerardo Midence-Allen appeals from the judgment following his conviction on one count of possession of a controlled substance for sale. (Health & Saf. Code § 11378.)
He contends we must reverse the judgment because the prosecutor committed prejudicial misconduct when she argued to the jury she had satisfied her burden of proving guilt beyond a reasonable doubt by providing only "reasonable" evidence of his guilt. Further, Midence-Allen claims his own trial counsel was ineffective because he failed to object to the improper argument and request a curative instruction.
The argument is unpersuasive and we consequently affirm the judgment. To establish the prosecutor's argument was improper, Midence-Allen must show that in the context of the entire argument and the jury instructions, it was likely to have misled the jury. But in making his argument, Midence-Allen has ignored the pertinent jury instructions entirely, failing to acknowledge that the jury was instructed on both the burden of proof and on its obligation to reject unreasonable interpretations of the circumstantial evidence. When those instructions are considered as part of the context in which the prosecutor's comments were made, we conclude there was no reasonable likelihood those comments misled the jury.
I
FACTS
In December 2015, the police were called to the Motel 6 where Midence-Allen was staying, to investigate a claim he was occupying a room without paying. The officers found Midence-Allen in the room and searched him, finding a key ring, two cell phones and $100 in cash in the front pocket of his jeans.
The officers also searched the room, finding four pipes used for smoking methamphetamine along with other drug paraphernalia, two digital scales, a Ziplock bag containing a usable amount of methamphetamine, and 16 empty small Ziplock bags. The officers also found a safe near the side of the bed, and when they opened it with a key from Midence-Allen's key ring, they discovered it contained a bag with over 22 grams of methamphetamine.
Midence-Allen was arrested and charged with possession for sale of a controlled substance. (Health & Saf. Code, § 11378.) He did not dispute the assertion he was knowingly in possession of the methamphetamine, as well as the two scales and other paraphernalia. He contested only the assertion he intended to sell the methamphetamine. He claimed instead it was entirely for his personal use.
At trial, an expert testified regarding common practices of drug users and sellers. When asked about the largest amount of methamphetamine he had heard an individual use in a single day, the expert replied "there's nobody that I've contacted that can consistently have a large amount of methamphetamine. It's pretty hazardous to your health. . . . [A] gram, about the size of what you have in a sugar packet, that could kill you, you know. Some people say they use that in a day. I've heard people say they use three grams in one day, but not consistently for any period of time."
The expert explained that methamphetamine "stimulates the part of the brain that is fight or flight . . . . So these people are awake for prolonged periods of time and then after awhile your body is going to crash. You're going to have a downside affect [sic] and they'll sleep for prolonged periods of time after that. And bad things happen to you when you are sleep deprived. After you lose two or three days of sleep, in conjunction with the drug, you can get into something call[ed] meth psychosis. It can kill you. We don't see too often that people [who] use large amounts stay around."
Midence-Allen testified in his own defense, stating he had used methamphetamine for 25 years and developed a high tolerance for the drug. He claimed that around the time of his arrest, he was using approximately 3.5 grams of methamphetamine per day, smoking and snorting it regularly throughout the day. He described his tolerance level as so high that snorting or smoking a gram had little effect on him, similar to a cup of coffee to most people. He needed that amount just to get up in the morning, and then at various times to feel normal throughout the day. He testified that on the day he was arrested, he already had used methamphetamine about five times - including smoking and snorting a total of 1.5 grams about half an hour before the police arrived.
Under cross-examination, Midence-Allen acknowledged the individual amounts of methamphetamine he had testified to using throughout a typical day would actually total about 10 grams, rather than the 3.5 grams he claimed to use. He then adopted that 10 grams per day figure as his typical usage, and testified he satisfied that habit by purchasing about 30 grams of methamphetamine from his dealer about every three days, and then consuming all of it personally. He reiterated it had been his intention to personally "use every bit of" the methamphetamine found in his hotel room. He denied any intent to sell it.
After Midence-Allen concluded his testimony, the prosecutor recalled the drug expert to testify further. The expert explained that although he had significant contact with people who are heavily addicted to methamphetamine, he never had encountered anyone who claimed to use an amount even close to 10 grams per day. The greatest amount he had ever heard an addict claim to use was 3.5 grams over the course of two days, and he considered even that claim to be implausible. The expert also discounted Midence-Allen's assertion that a gram of methamphetamine had little effect on him, other than to make him feel normal. The expert explained that although he had encountered people who were so heavily addicted to methamphetamine that using it had no affect other than to make them feel normal, those people were using amounts in the range of 0.2 grams to half a gram per week, while trying to wean themselves off the drug.
In her closing argument, the prosecutor explained to the jury that this case came down to the issue of intent. She noted Midence-Allen had acknowledged he possessed the methamphetamine, and he knew what it was. Thus, the only question for the jury to resolve was whether Midence-Allen intended to sell the methamphetamine or use it personally. The prosecutor stated the court would instruct the jury it would rely on circumstantial evidence to prove Midence-Allen's intent, and that "when you are considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
She then summarized the evidence and focused on the expert's testimony about the amount of methamphetamine an addict might be expected to consume in a day, comparing it to the amount Midence-Allen claimed to be using - which she then characterized as "not even within the spectrum of reality." She told the jury it would have to think about Midence-Allen's claim and ask "Does it make sense what he's saying to you?"
The prosecutor then turned to the burden of proof, stating "proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] It says if you can dr[a]w two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you have to accept the one that points to innocence. However, you must accept only reasonable conclusions and reject any that are unreasonable."
The prosecutor pointed to apparent gaps and inconsistencies in Midence-Allen's story, including the fact that although he claimed to use "a lot of marijuana" to counter the effects of the methamphetamine so he could sleep, there was no evidence of marijuana in any form - or any paraphernalia associated with it - in the motel room. And she urged to jury to "look at all the facts and circumstances and the reasonable conclusion is right in front of you. He's in a motel that is known for methamphetamine, not just possessing, but that's where people go to buy and sell drugs. . . . And then look at what he's caught with."
The prosecutor again focused on the unreasonableness of Midence-Allen's claim, stating "he can sit here and try to explain away every little factor saying, 'It's all for me and this is why I possessed that and this is why I had that,' but if you look at his story as a whole does it make sense to you? And it doesn't. It is not reasonable. It is not a reasonable doubt that - there's no reasonable doubt that he possessed with the intent to sell that methamphetamine."
In his closing argument, Midence-Allen's counsel agreed the only issue in dispute was intent; i.e., whether Midence-Allen intended to sell the methamphetamine in his possession. He then emphasized the significance of the prosecutor's burden to prove her case beyond a reasonable doubt, equating that high standard to the one the jurors would employ when making a major life decision, such as the purchase of a home: "The decisions you make in the jury room are that profound . . . and that lasting."
Counsel then argued the evidence was not strong enough to support such a significant conclusion regarding Midence-Allen's intent. He claimed there was a "reasonable explanation" for Midence-Allen's possession of the large quantity of methamphetamine, and "that reasonable explanation is consistent with an individual who is consuming methamphetamine on a daily basis." Thus, he urged the jury to find the prosecution had not met its burden of proof regarding the disputed element of intent.
In her rebuttal, the prosecutor pointed out, "[i]n order for you to find that there is a reasonable interpretation in this case that points to innocence, you have to believe every word of his testimony on that stand today. You have to believe that he was telling the truth. You have to believe that it makes sense, that that is what he actually does and that it's reasonable. And it's not."
The prosecutor then summarized the competing views of the evidence before the jury: "You have to look at the evidence that was here in this case. And what you have in this case are his statements that are almost nonsense and the evidence that was found in his room, what he's caught red-handed with on December 7th. And you have to make a conclusion. And what is the reasonable one? That he's . . . not going through all that methamphetamine by himself, he has all the tools he needs to separate it out and sell it to other people. [¶] He may be using methamphetamine, I'm sure he was, but he's not using it all by himself. He has everything he needs to package it out, weigh it out, separate it, and sell it to other people because how else is he going to stay in this motel room for another month when all he has is $100 in his pockets. His version is not reasonable."
The prosecutor then told the jury that "making the decision as a juror in a case, you are just looking at what has been presented in front of you. You are not guessing about what's going to happen in the future. You don't have to guess about anything else. You just look at the evidence and decide what is the reasonable conclusion. And the only reasonable conclusion in this case is that he possessed it with the intent to sell. It's not reasonable that that was all for himself."
The trial court then instructed the jury on the applicable law, emphasizing "[y]ou must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions."
The court's instructions included CALCRIM No. 220, explaining the standard of proof beyond a reasonable doubt. It specifies "[a] defendant in a criminal case is presumed to be innocent" and it is the prosecution's burden to prove guilt beyond a reasonable doubt. It then defines "[p]roof beyond a reasonable doubt" as "proof that leaves you with an abiding conviction that the charge is true."
The court's instructions also included CALCRIM No. 225, explaining the permissible use of circumstantial evidence to demonstrate intent. It states "before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence."
II
DISCUSSION
Midence-Allen contends we must reverse the judgment of conviction because (1) the prosecutor committed misconduct when she "suggested during rebuttal argument that [the prosecution] had satisfied its burden of proving guilt beyond a reasonable doubt by providing a 'reasonable' account of evidence," and (2) his own counsel was ineffective for failing to object to that misconduct and requesting a curative instruction. Because we conclude the prosecutor's comments did not constitute misconduct, we need not address the second point.
Midence-Allen's specific complaint is that the prosecutor's references likely misled the jury into believing its finding of guilt boiled down to a determination of "which of the two parties' accounts of the evidence is the most 'reasonable,'" and thus relieved her of the responsibility of dispelling all reasonable doubt. (See People v. Frye (1998) 18 Cal.4th 894, 970 [misconduct is established if there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner"] "disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.".) And Midence-Allen relies on People v. Centeno (2014) 60 Cal.4th 659, 672 (Centeno), for the proposition that "[t]he standard of proof is a 'measure of the jury's level of confidence,' and it 'is not sufficient that the jury simply believe that a conclusion is reasonable.'"
While we agree with the latter proposition, Midence-Allen's characterization of the prosecutor's remarks in this case is unpersuasive for at least two reasons. First, when determining whether a prosecutor's argument to the jury was misleading, we do not consider the challenged comments in isolation. Instead, "defendant . . . need[s] to 'show that, "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner."'" (People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez), italics added.) Consequently, "[i]f the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.'" (Ibid.)
Moreover, "in determining how jurors likely understood the prosecution's arguments, we do '"not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations."'" (Cortez, supra, 63 Cal.4th at p. 131.) Thus, when the appellant's contention is that the prosecutor's comments likely misled the jury on the applicable standard of proof, "it is significant that the trial court properly defined the reasonable doubt instruction in both its oral jury instructions and the written instructions it gave the jury to consult during deliberations." (Ibid.) It is also significant that the trial court "emphasized . . . that jurors should follow its instructions rather than anything potentially contrary in counsel's arguments" and "that defense counsel emphasized the court's instructions on reasonable doubt numerous times during closing argument." (Id. at p. 132)
Here, the trial court did both of those things - it defined reasonable doubt in its instructions and it separately emphasized to the jurors that they were required to follow the law as set forth in the instructions, even if the attorneys' arguments suggested something different. Additionally, Midence-Allen's own counsel focused much of his argument on the significance of the proof-beyond-a-reasonable-doubt standard. (See, Cortez, supra, 63 Cal.4th at p. 132 ["It is also significant that defense counsel emphasized the court's instructions on reasonable doubt numerous times during closing argument"].) Viewed in context, we cannot conclude the jury likely was misled into believing the prosecutor had satisfied her burden of proof by offering what was merely the "most reasonable" account of the evidence.
And that brings us to the second, and more significant, reason we find Midence-Allen's complaint unpersuasive: the prosecutor did not actually argue her interpretation of the evidence was "more" reasonable than the explanation offered by Midence-Allen, or that it was the "most" reasonable. Instead, she argued that Midence-Allen's story was wholly unreasonable and implausible. That argument dovetailed neatly with CALCRIM No. 225, the instruction which explained to the jury the permissible use of circumstantial evidence to demonstrate intent. The instruction told the jurors they could not rely on the circumstantial evidence to conclude Midence-Allen had the intent to sell his methamphetamine unless that was the only reasonable conclusion supported by the evidence.
Thus, the prosecutor repeatedly emphasized in her argument that while her interpretation of the circumstantial evidence - the scales, the baggies, the large amount of methamphetamine - reasonably demonstrated Midence-Allen's intent was to sell the drug, his claim of personally consuming 10 grams of methamphetamine per day was not at all reasonable. Not only did the prosecutor characterize his story as unreasonable several times, she also claimed it "makes no sense whatsoever," and called it "not even within the spectrum of reality." She never suggested there was comparative reasonableness.
Finally, Centeno, supra, 60 Cal.4th 659, does not support reversal of the judgment in this case. In Centeno, the prosecutor misled the jury on the burden of proof in two ways. First, she attempted to illustrate the meaning of proof beyond a reasonable doubt by relying on a visual aid. She showed the jurors an unlabeled outline of the State of California and asked them to assume a series of hypothetical witnesses had offered specific anecdotes about their experiences in and near the place depicted. She then pointed out that even if some of the information offered by the hypothetical witnesses had been incomplete or inaccurate, the jurors would nonetheless be able to conclude, beyond a reasonable doubt, that the place was California. (Id. at pp. 665-666.) The Supreme Court held this analogy misstated the burden of proof, gave the jurors the impression they should draw on their own knowledge rather than the evidence presented at trial, encouraged guessing, and trivialized the deliberative process. (Id. at p. 669.)
The second way in which the prosecutor misstated the burden of proof bears superficial similarity to the prosecutor's comments in this case. Comparing the prosecution and defense evidence, she asked the jury to consider whether it was "'reasonable to believe'" the child victim "'made up an embarrassing, humiliating sexual abuse,'" and argued that "'what is reasonable [is] that he abused her.'" (Centeno, supra, 60 Cal.4th at p. 666.) The Supreme Court concluded that the prosecutor's remarks misstated the burden of proof because although "[i]t is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory" (id. at p. 672), the prosecutor "confounded the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt." (Id. at p. 673.)
In this case, however, the prosecutor did not confound the concept of rejecting unreasonable inferences with anything. She squarely argued that point, which was critical because the prosecution's evidence of Midence-Allen's intent was entirely circumstantial. Consequently, the trial court instructed the jury per CALCRIM No. 225 that it must conclude Midence-Allen lacked the requisite intent if it believed there was another reasonable conclusion other than the one pointing toward guilt. By contrast, the evidence in Centeno was not circumstantial; the child victim testified directly about what the defendant had done to her, and thus CALCRIM No. 225 played no significant part in the jury's analysis.
Moreover, in Centeno, the Supreme Court did not find that the prosecutor's argument about the reasonableness of the prosecutor's case, standing alone, constituted reversible error. Instead, it concluded that the combination of "the prosecutor's hypothetical and accompanying argument misled the jury about the applicable standard of proof and how the jury should approach its task." (Centeno, supra, 60 Cal.4th at p. 674.) In this case, there is no accompanying hypothetical to aggravate the potential misleading effect of the prosecutor's remarks.
One aspect of Centeno is analogous to what occurred here, but it undermines Midence-Allen's argument. Like the child victim in Centeno, Midence-Allen offered direct evidence of his intent when he testified he intended to personally use the methamphetamine. This direct evidence did not implicate CALCRIM No. 225 and therefore the prosecutor did not misstate the reasonable doubt standard or CALCRIM No. 225 when she argued Midence-Allen's testimony about his intent was unreasonable.
Consequently, we conclude the prosecutor's remarks about the reasonableness of her interpretation of the evidence - and more significantly about the unreasonableness of Midence-Allen's own explanation of that same evidence - was not likely to mislead the jury about the applicable standard of proof. We therefore need not address Midence-Allen's claim that his own trial counsel was ineffective for failing to object to those remarks and request a curative instruction.
Midence-Allen also claims, in conclusory terms, that the prosecutor improperly suggested to the jury it "need not determine that its conviction of guilt will abide in the future" when she argued "'You are not guessing about what's going to happen in the future.'" We presume - because Midence-Allen does not say - that he views the prosecutor's comment as inconsistent with the definition of proof beyond a reasonable doubt being "proof that leaves you with an abiding conviction that the charge is true." But the prosecutor did not tell the jury that their conviction need not be an abiding one. Instead, in direct response to defense counsel's comparing the proof-beyond-a-reasonable-doubt standard to the process of buying a house, she argued that while the decision to purchase a house necessarily involved some speculation about the future effects of that current decision, the determination of Midence-Allen's guilt or innocence did not. It required only that the jury "look[] at what has been presented in front of you. You are not guessing about what's going to happen in the future." We find no impropriety in that assertion. --------
III
DISPOSITION
The judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.