Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. TA089062, Gary E. Daigh, Judge.
Frank Duncan for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
Deshon Lavell Pree appeals from his judgment of conviction by jury trial of possession of marijuana for sale. He claims prosecutorial misconduct because the prosecutor repeatedly sought to prevent him from presenting the defense that he possessed the marijuana for personal use based on a doctor’s order, but argued to the jury that a doctor’s order produced after the arrest was fabricated. We find the claim is not substantiated and that no misconduct was shown. Appellant also argues the trial court deprived him of a hearing on his motion under Penal Code section 1538.5 to traverse or quash a search warrant. Alternatively, if we find the issue forfeited, appellant claims his counsel was ineffective in failing to preserve the issue on appeal. We conclude that even if the motion to traverse was timely, it was insufficient on the merits. Finally, appellant has not demonstrated ineffective assistance of counsel.
In his opening brief, and again in his reply brief, appellant asserts there was insufficient evidence to support his conviction. He provides no argument, no discussion of the evidence, and cites no legal authority to support the assertion in either brief. We reject this perfunctory claim as not properly raised. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
FACTUAL AND PROCEDURAL SUMMARY
Los Angeles County Sheriff’s deputies executed a search warrant at appellant’s home and seized two bags of marijuana, more than 50 small empty baggies, a digital scale, and scissors with a saw blade. Appellant was arrested and charged with possession of marijuana for sale in violation of Health and Safety Code section 11359. A jury convicted him as charged. Imposition of sentence was suspended and appellant was placed on formal probation for a three-year period, conditioned on serving 180 days in county jail. He was ordered to pay fines, fees, and assessments. This timely appeal followed.
DISCUSSION
I
We first address appellant’s claim that the prosecutor committed misconduct in her summation argument. That issue requires a detailed review of the evidence and arguments that preceded this argument. Appellant’s claim of prosecutorial misconduct arises from the prosecutor’s rebuttal argument concerning appellant’s delay in providing evidence that he had a medical prescription to use marijuana. Whether appellant would invoke the compassionate use defense under Health and Safety Code section 11362.5 was a subject of repeated colloquy between counsel and the court before and during the trial. Health and Safety Code section 11362.5, subdivision (d) provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.”
Before the trial began, the prosecutor asked for an Evidence Code section 402 preliminary fact hearing. She noted that the defense had stated that appellant was not going to raise a medical marijuana or compassionate use defense. She had received no discovery relevant to that issue. The prosecutor objected to allowing the jury to see medication bottles clearly visible in a bag appellant had with him in court and “to any mention or any kind of evidence coming in suggesting such defense.” Defense counsel offered to place appellant’s bag inside his own bag. He said: “I have never indicated that there would not be a medical-medicinal marijuana use defense. I indicated I did not have any discovery. I asked my client this morning to bring me medical documentation regarding his condition and if he had any medications, I wanted to see those....”
Defense counsel told the court: “I do want to indicate that Mr. Pree told the officers at the time that he was arrested that he used marijuana for medicinal purposes, so without going into the details of what the defense will be, I will say at the time I made the representation to the People I did not have the medical marijuana. I did not have any documentation regarding medicinal use.” When asked whether he had given the prosecutor his witness list, defense counsel said he did not have a list, intending perhaps to call his client.
The trial court and defense counsel agreed that while medicinal marijuana use is not a defense to a charge of possession of marijuana for sale, it was relevant to the lesser-included offense of simple possession of marijuana (Health & Saf. Code, § 11357, subd. (c)). The prosecutor argued it would be prejudicial to allow a suggestion that appellant suffered from a condition that requires treatment with medical marijuana “without any doctors coming in or experts or anybody that has prescribed such marijuana use,...” The prosecutor clarified that she wanted an offer of proof as to what evidence the defense would offer, and discovery of the evidence.
Defense counsel contended the prosecution was only entitled to discovery of documents in possession of the defense, and that he did not have any documentation to indicate appellant had been prescribed medical marijuana. He said appellant might testify that he had been prescribed marijuana, and “[i]f I don’t have doctors and other persons who prescribed it, then that’s a weight issue as opposed to an exclusionary issue.” The prosecutor took the position that it would be improper to allow the appellant to testify his use of marijuana was at a physician’s direction unless he had documentation supporting that assertion. The trial court deferred its ruling until it had an opportunity to research the medical use defense.
During a recess, the trial court reviewed the CALCRIM instruction on medical marijuana use under the Compassionate Use Act (Health & Saf. Code, § 11362.5). The prosecutor again sought discovery of all materials relevant to the compassionate use defense. The trial court asked defense counsel whether he was going to present the defense, but counsel said he did not know. He contended that appellant was entitled to testify he has a medical marijuana prescription, and if no corroborating documentary evidence was introduced, the issue was the weight to be given appellant’s testimony rather than its admissibility. The prosecution and defense disagreed as to whether the jury should be voir dired about the medical marijuana defense.
CALCRIM No. 2363 provides in pertinent part: “Possession... of marijuana is not unlawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess... marijuana for personal medical purposes... when a physician has recommended [or approved] such use. The amount of marijuana possessed... must be reasonably related to the patient’s current medical needs.... The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess... marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”
The trial court indicated that appellant could testify that he possessed marijuana for his own use, and that he needed the amount seized because of his medical condition. That testimony, the court said, would be relevant to whether appellant had marijuana for personal use rather than for sale, and was independent of the medical marijuana defense.
Later, during the prosecutor’s redirect examination of Barry Fitchew, a narcotics investigator for the Los Angeles Sheriff’s Department, the trial court sustained a relevance objection to a question about whether diabetes is a recognized medical condition under the medical marijuana law. When the prosecutor began to ask whether Fitchew was familiar with the medical marijuana law, the trial court interrupted and called counsel to the bench. The court explained that the relevance objection was sustained because there was no evidence of medical marijuana use. The prosecutor said Fitchew would not be available later, and that she did not know whether appellant would testify or what he might say about his medical condition or use of marijuana for that condition. The trial court offered to order Fitchew back, but would not allow questions on the defense because it was irrelevant at that point.
Following a recess, defense counsel announced that appellant would testify that he possessed the marijuana for personal use. Counsel explained: “At this point he is using without a prescription. He has since obtained a prescription. I don’t really want to use that prescription. I’m not going to enter it, but his testimony regarding the individual baggies is going to be that he combines his medication with them.” The trial court ruled that any prescription obtained after appellant’s arrest would be irrelevant, and precluded appellant from testifying about it. The prosecutor said she would object to such testimony. Since the defense asked the court to instruct on the lesser included offense of simple possession, the trial court ruled that appellant could testify that he uses the marijuana to self-medicate. The court also ruled that the jury instruction on compassionate use would not be given because there would be no evidence to support it.
Appellant testified on direct examination that he told the deputies that he used marijuana for pain, and that on his job he has a lot of pain. Appellant explained that he used some of the empty baggies found in the search to hold pills he takes for his diabetes. He described his conditions and medications, saying he had used marijuana for 20 years, and that it helped with his pain. He explained that he purchased the large quantity seized, nearly eight ounces, so he did not have to buy more for a month or two.
The prosecutor began her cross-examination with the details of appellant’s medical condition. When she asked about the doctor appellant was seeing for back and neck pain, defense counsel asked to approach the bench. He advised the court that if the prosecutor continued this line of questioning, appellant would likely testify that he had obtained a prescription for medical marijuana after his arrest. The prosecutor continued to ask about appellant’s doctors and what he was prescribed to alleviate pain. Appellant said: “Well, it depends on what you mean by ‘prescribe’ because he didn’t really give me a written prescription. He gave me a say-so. He told me a half ounce to eight ounces of marijuana per day.”
The prosecutor then questioned whether a medical doctor would suggest the use of marijuana “without writing it down on paper.” Appellant answered: “He did write it down on paper. Like I told you, a half ounce to eight ounces every three days.” The prosecutor continued to press the issue, asking appellant whether he was given a prescription. Appellant said he did not get the kind of prescription he could take to a pharmacy. The prosecutor then asked whether the doctor gave appellant “a piece of paper that says you can have marijuana?” Appellant said the doctor had done so, that he received it prior to his arrest, and that his lawyer had the paper. Appellant explained that he did not show the deputies the paper from his doctor during the execution of the search warrant because everything happened so fast. He also said he did not think it was necessary to give the paper to the deputies because he already had been taken to jail for something he did not do. The prosecutor also cross-examined appellant about whether the doctor who treats his diabetes had given him a prescription for marijuana. Appellant said that he had not.
At the prosecutor’s request, the court ordered production of the prescription for marijuana about which appellant testified. The prosecutor then sought an instruction regarding the defense’s late production of permission to use medical marijuana. That morning the defense had turned over a letter by Dr. Edward Alexander dated February 19, 2007 saying that appellant had been under his care as a cannabis patient since January 23, 2007. Appellant was arrested on January 25, 2007. Appellant also produced a card on letterhead from Edward Alexander that was largely in print too small to read but which referenced Health and Safety Code section 11362.
Defense counsel objected to the proposed instruction on delayed discovery, saying that he had not intended to introduce the documents, and that he had not questioned his client about them because they were irrelevant since no compassionate use defense was planned. But the prosecutor’s cross-examination focused on the medical use defense and opened the door to the introduction of the documents. The prosecutor said she did not recall how the subject of appellant’s permission to use marijuana arose during her examination. The trial court said: “I recall because the... entire focus of your cross-examination for the first 14 minutes was this medical marijuana which from day one you objected to bringing in.” The trial court reviewed the prosecution’s repeated objections to evidence about appellant’s medical marijuana use. The court observed: “You not only opened the door, you drove a truck right through it so the late discovery instruction will not be given.” Based on the testimony elicited by the prosecutor, the court ruled that it now would allow the compassionate use defense and would so instruct the jury.
In her opening summation, the prosecutor did not mention the medical marijuana defense. In his closing, defense counsel asked the jury not to speculate on why he did not question appellant about a prescription to use marijuana. He then discussed the prosecutor’s cross-examination of appellant about his prescription for the use of medical marijuana, and suggested: “Well, I’m sure all of you went home and said I would like to see that. Well, bottom line is, he had it.” Counsel argued that if the jury concluded appellant had not possessed the marijuana for sale, then “the question becomes[,] do you believe he had it for the purpose of medicinal use,... [¶] So the question becomes did the People prove beyond a reasonable doubt that the marijuana he had was not used for medicinal purposes? The answer is no.” Defense counsel argued that appellant’s testimony that he used marijuana for pain was uncontroverted by any expert testimony for the prosecution, who had the burden of proof. He also argued that in appellant’s mind, his possession of marijuana was not an offense because he had a prescription and was using it for medicinal purposes. Later in the argument, defense counsel again asserted that appellant’s failure to give the prescription to the deputies did not matter because at that time he did have the prescription. In conclusion, he again argued that the prosecutor had failed to present evidence to challenge appellant’s testimony that he used marijuana for medicinal purposes because of pain.
In her rebuttal argument, the prosecutor reminded the jury of the instruction that argument of counsel is not evidence. After discounting asserted inconsistencies in testimony by the deputy sheriffs, the prosecutor argued: “But let’s talk about some real inconsistencies that took place right here before your very eyes when this defendant took the stand. He brings in this letter. Today last day of trial here is my letter from this doctor. This is my get-out-of-the-charge-free card, right? I get this today six months after the incident took place and nine court appearances after. I get it today. No opportunity for the People to verify this information, to call up this doctor to put on a rebuttal because they slammed me with it today. And because we want to go forward and finish this case as quickly as possible, I said okay, let’s look at this letter that you are bringing in today.”
Appellant contends that this argument by the prosecutor in rebuttal was misconduct because it cast appellant and his attorney in a false light. “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) When the claim focuses upon comments made by the prosecutor before the jury, the test for misconduct is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Ibid.)
A defendant forfeits the misconduct issue on appeal “‘“unless in a timely fashion”—and on the same ground—“[the defendant] made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”’” (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; see also People v. Gionis (1995) 9 Cal.4th 1196, 1215 [timely objection and request for admonition required unless admonition would not have cured the harm].) Here, appellant did not object to the prosecutor’s rebuttal argument and also did not request that the jury be admonished to disregard the argument. Under the circumstances presented here, a request for an admonition would not have been futile to cure the harm. (People v. Hill (1998) 17 Cal.4th 800, 820.) The issue was not preserved for appeal.
Nevertheless, even had the issue been preserved, no misconduct is demonstrated on this record. Defense counsel repeatedly argued that the prosecution had failed to controvert appellant’s evidence that he was using marijuana for medical purposes pursuant to a prescription from a doctor. The prosecutor’s remarks were a fair response to this argument, pointing out that appellant had withheld this evidence until the last day of trial and explaining why no rebuttal evidence was presented.
In People v. Hill (1967) 66 Cal.2d 536, the Supreme Court held that prosecutorial misconduct cannot be based on remarks responsive to defense counsel’s argument which do not go beyond the record. (Id. at p. 562.) In People v. Mendibles (1988) 199 Cal.App.3d 1277, 1313, the Court of Appeal held: “It is settled that ‘even otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, does not constitute misconduct.’ (People v. McDaniel (1976) 16 Cal.3d 156, 177; People v. Hill [, supra, ] 66 Cal.2d [at p.] 560.)”
As in People v. Hill, supra, 66 Cal.2d 536 and People v. Mendibles, supra, 199 Cal.App.3d 1277, the prosecutor’s rebuttal argument was a fair response to the defense attorney’s closing argument. This conclusion disposes of appellant’s alternative argument that he was deprived of effective assistance of counsel by his trial attorney’s failure to object to the prosecutor’s argument. In order to establish a claim of ineffective assistance of counsel, a defendant must show prejudice under the test of a reasonable probability of a different outcome. (People v. Memro (1995) 11 Cal.4th 786, 818.) Since there was no prosecutorial misconduct, an objection would not have led to a different outcome.
II
Appellant also argues he was improperly denied a hearing on his motion to traverse the search warrant under Penal Code section 1538.5, subdivision (h). We granted his motion to augment the record on appeal with the warrant and supporting affidavit, but those documents could not be located by the trial court. A review of the argument on the motion to traverse indicates that the affidavit supporting the warrant was based on information from a citizen informant and from the observation and detention of two people who went to appellant’s home for the ostensible purpose of obtaining marijuana.
The first individual stopped was a man. He drove up to appellant’s house, got out, went into the house for a brief time, left, and was stopped by law enforcement officers. Two bags of marijuana were found in his sock. The second individual, a woman, drove up to appellant’s house, was there for a short period, left, was stopped by law enforcement officers, and was found to be in possession of marijuana. According to the trial court, the statement of probable cause for the warrant also said a citizen informant had told the affiant that there were narcotic sales out of appellant’s house and that Deshon Pree (appellant) was selling the narcotics. The statement of probable cause was found sufficient by a magistrate.
After the jury was selected but before testimony began, the defense moved to traverse the search warrant. It did so by a handwritten motion, undated and unsigned, without supporting declarations. Defense counsel explained he had prepared it over the noon recess. He had learned the identity of the two people detained at appellant’s house two to three weeks previously and had only been able to contact them late the previous week. He had been unsuccessful in obtaining declarations from them. Defense counsel argued that the affidavit supporting the search warrant incorrectly said that these two people had been arrested, but that they were cited instead. In addition, although he referred to no evidence supporting the claims, he contended that factual omissions were made as to each of the two buyers. As to the man, according to defense counsel, the affidavit did not say that the smell of marijuana was emitted from the man’s car when he was apprehended at appellant’s house. Counsel argued that this evidence supported a conclusion that the man was in possession of marijuana before he went into appellant’s house. Counsel for appellant also argued the affidavit was false and misleading as to the woman apprehended at appellant’s house because it did not reveal that she lived in the house with appellant. He contended that the marijuana the officers found on her person could have been her own, rather than purchased from appellant.
According to defense counsel, he was supposed to meet his paralegal over the recess to pick up a formal motion to traverse, but could not find the paralegal at the appointed location.
The prosecutor argued the motion was untimely because defense counsel had a copy of the search warrant from the inception of the case and never had requested the police report of the arrests of the two individuals. Copies of the police reports were given to defense counsel on July 18th, but the motion was not made until August 6, 2007. The prosecutor argued the discrepancy between the statement in the affidavit that the two were arrested and the claim that they were only cited was not material and would not have changed the probable cause determination.
In response, defense counsel conceded that he did not want to contact the two alleged buyers earlier for tactical reasons. First, he did not want to create a suggestion that his client was retaliating against them in any way. Second, he took the position that if the People planned to call the buyers as witnesses, their names would be turned over. He said: “I have no real interest in finding them.” It was only when the prosecutor turned over documents relating to the two buyers that he decided to contact them. Defense counsel argued that the distinction between arrest and citation could have been significant to the magistrate because an arrest implied that larger amounts of marijuana were involved. But when the court inquired, defense counsel abandoned that position and said the citation or arrest question had nothing to do with the issues.
The trial court denied the motion to traverse: “Even assuming that it’s timely, it’s wholly inadequate on its face. There is absolutely nothing other than argument of counsel to show that there are any material misrepresentations. There’s no declarations of these two people that apparently allegedly were forthcoming.... [¶] Even assuming—and you don’t meet your burden.” The trial court found that appellant had not met his burden of establishing misrepresentations. It concluded that even if the claimed misrepresentations had been demonstrated, enough probable cause remained to support the warrant.
Appellant acknowledges that although the trial court found the motion was untimely, it heard full argument from counsel. He characterizes the only issue as whether his motion was sufficient to allow a full evidentiary hearing. We agree with the trial court that the timeliness of the motion to traverse was problematic. (See People v. Frazier (2005) 128 Cal.App.4th 807, 828-829.) And, like the trial court, we also conclude that the motion was insufficient on the merits.
“‘Probable cause to issue an arrest or search warrant must... be based on information contained in an affidavit providing a substantial basis from which the magistrate can reasonably conclude there is a fair probability that a person has committed a crime or a place contains contraband or evidence of a crime.’ [Citation.] As to the sufficiency of the affidavits, such ‘affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” [Citation.]’ (Illinois v. Gates (1982) 462 U.S. 213, 235.).... Furthermore, ‘[i]n cases where an officer had in mind facts which justified an arrest, and made an arrest upon those facts, the arrests have been held lawful despite the officer’s having cited some other closely related offense at the time of arrest or in testifying.’ (People v. Howell (1973) 30 Cal.App.3d 228, 235.)” (People v. Richardson (2008) 43 Cal.4th 959, 989.) “A court reviewing the issuance of a search warrant defers to the magistrate’s finding of probable cause unless the warrant is invalid as a matter of law. [Citation.] The duty of the reviewing court is to ensure there was a substantial basis for magistrate concluding there was probable cause to issue the warrant. (Illinois v. Gates, supra, 462 U.S. at pp. 238-239.)” (People v. Varghese (2008) 162 Cal.App.4th 1084, 1104.)
“‘[A] defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant.... [T]he lower court must conduct an evidentiary hearing [only if] a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth; and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause.... Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] “Moreover, ‘there is a presumption of validity with respect to the affidavit....’”’ (People v. Panah (2005) 35 Cal.4th 395, 456, citing Franks v. Delaware (1978) 438 U.S. 154; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1297; see People v. Luttenberger (1990) 50 Cal.3d 1, 9-10.)” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 988-989.)
The asserted discrepancy as to whether the two alleged buyers were arrested or merely cited for marijuana possession, is not material to the issue of probable cause. In his motion to traverse, defense counsel said: “This is material because the connotation of a marijuana related arrest, and the context for the particular arrest in this case.” But, as we have seen, he abandoned this position in argument before the trial court. In any event, the distinction is not significant to the probable cause determination. (People v. Richardson, supra, 43 Cal.4th at p. 989.)
Although he did not refer to evidence to support his position, appellant claims the probable cause affidavit omitted the information that when the affiant approached the male buyer, “he detected the strong odor of marijuana from the inside of the vehicle and therefore he was already in possession of marijuana when he arrived.” He also relies on the omission that the female buyer lived in the home with appellant, although no evidentiary basis for that claim is provided. Neither factor undermines the showing of probable cause. The affidavit included information from a citizen informant that appellant was selling marijuana. Two people were observed by officers entering appellant’s home, staying briefly, and leaving in possession of marijuana. Based on the affidavit, we conclude there was a fair probability that appellant had committed the crime of possession of marijuana for sale and that his home contained marijuana or other evidence that he was selling it. This was sufficient to support the warrant. (People v. Richardson, supra, 43 Cal.4th at p. 989.)
Our conclusion disposes of appellant’s alternative argument that he was deprived of effective assistance of counsel because the motion was untimely and was not supported by declarations from the two buyers. He cannot show prejudice under the test of a reasonable probability of a different outcome in light of our conclusion that because the warrant was supported by probable cause, a timely motion with declarations from the buyers supplying the omitted information would not have undermined the determination of probable cause.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.