Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 07CF0359 Everett W. Dickey, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Pamela Ratner Sobeck, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Thomas Richard Ramirez appeals from a judgment after a jury convicted him of possession for sale of a controlled substance and street terrorism, and found true he committed the possession for sale of a controlled substance offense for the benefit of a criminal street gang. He argues the prosecutor committed numerous instances of misconduct. As we explain below, we agree the prosecutor committed misconduct, and we reduce Ramirez’s conviction for possession for sale of a controlled substance to possession of a controlled substance. In all other respects, we affirm the judgment as modified.
FACTS
Officer John Mancini and Officer Ted Taketa were on patrol late one evening when they spotted Ramirez and another man, later identified is Daniel Chomina, standing in the street. Mancini shined the marked patrol vehicle’s spotlight on the two men, and Ramirez walked away. Mancini, who recognized Ramirez from prior encounters with him, got out of the car and shouted at Ramirez to stop, but Ramirez continued to walk away. Mancini saw Ramirez remove a dark object from his right front pants pocket. As Ramirez entered a gated apartment complex, Mancini saw Ramirez throw the object into the patio area. Mancini lost sight of Ramirez momentarily, and Mancini drew his weapon and ordered Ramirez out of the patio area-he complied. Mancini searched Ramirez and found only a cellular telephone. After he handcuffed Ramirez, Mancini recovered a black shopping bag containing a clear rock, which was later determined to be 27.8 grams of a substance containing methamphetamine. Mancini judged Ramirez to be sober at the time of the encounter.
An information charged Ramirez with possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 1), and street terrorism (Pen. Code, § 186.22, subd. (a)) (count 2). As to count 1, the information alleged he possessed for sale 14.25 grams of heroin (Health & Saf. Code, §§ 11351, 11352.5, subd. (1); Pen. Code, § 1203.07, subd. (a)(1)), and he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The information alleged he suffered a prior Health and Safety Code conviction (Health & Saf. Code, § 11370.2, subd. (c), and served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
On the prosecutor’s motion, the trial court dismissed this allegation.
At trial, the prosecutor offered Mancini’s testimony. Mancini testified a rock such as the one Ramirez possessed was worth more money than what the person paid for it because the owner can smash the rock and add cutting agents to produce more substance to sell. Mancini opined the amount of methamphetamine possessed was a usable amount but it was more consistent with an amount a seller would possess because of the high cost. Mancini stated that just one week prior to the offense here, he arrested Ramirez for possession of narcotics paraphernalia, a pipe. Mancini said the pipe had burn marks and white residue, consistent with someone smoking methamphetamine.
After detailing his background, training, and experience, Mancini testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs. Mancini explained gang members commit financial crimes to perpetuate further criminal activity and boast about their crimes to earn respect within the gang and instill fear in the community. Based on his professional training and experience in the gang suppression unit, Mancini opined Varrio Modena Loco (VML) is an ongoing organization and its primary activities are illegal drug sales, firearm possession, and felony vandalism. He explained VML has more than three members, it claims territory in Orange, VML’s rival is Orange Varrio Cypress, its members wear the University of Michigan clothing to correspond with Modena, and its members committed the statutorily required predicate offenses, including one by Ramirez’s brother, Frank Ramirez (Frank), who he opined was an active participant in VML.
Mancini opined Ramirez was an active participant in VML at the time of the offenses based on the following: his personal contacts with Ramirez; his review of documentary evidence, including police reports, STEP notices, and field identification cards; and conversations with other police officers, Ramirez, Ramirez’s family, and other gang members. The prosecutor offered and the trial court admitted photographs depicting Ramirez wearing University of Michigan clothing one month prior to the offenses charged here. Based on a hypothetical mirroring the facts of this case, Mancini opined the offense promoted the gang’s criminal conduct and it was done for the benefit of the gang because drug sales proceeds were contributed to the gang to purchase guns and drugs to commit further criminal activity.
On cross examination, Mancini initially testified Ramirez had $7 when he was arrested. Later, however, Mancini stated Ramirez had a large amount of money, and Mancini put the money in his truck. Mancini could not remember how much money Ramirez had or where in the truck he put it. Mancini admitted he did not include this information in his police report. Mancini testified he searched Ramirez’s truck but did not find any drugs or drug paraphernalia.
The prosecutor also offered the testimony of Officer Ron Garwood pursuant to Evidence Code section 1101, subdivision (b). Garwood testified that in 2003, he arranged by telephone to purchase an ounce of methamphetamine from an unknown individual for $850 at a supermarket in Huntington Beach. At the supermarket, the driver and Frank got out of the car, and Ramirez stayed inside the car. When the driver returned to the car, officers descended on the parking lot and the driver sped away. Frank ran but was caught. Officers arrested all three men, and Ramirez was convicted of possession of methamphetamine with intent to sell. Garwood believed Ramirez was acting as a lookout. In 2002 and 2004, Ramirez was convicted of possession of methamphetamine for personal use.
Ramirez offered the testimony of Steven Strong, a licensed private investigator and retired 20-year detective from the Los Angeles Police Department. Strong explained a person with a bindle of methamphetamine could be a dealer or a user, and to determine whether a person is a dealer corroborating evidence such as scales, Ziploc baggies, or pay/owe sheets are needed. He stated it would not be unusual for a longtime methamphetamine addict to possess a large amount of methamphetamine. Strong did not believe Ramirez possessed the methamphetamine with the intent to sell. Strong opined most gang members do not sell drugs to give the proceeds to the gang but to support themselves. He explained that the fact a person’s family member is in a gang does not mean he or she is also in a gang. Strong stated there was insufficient evidence to conclude Ramirez was an active participant in VML at the time of the offense. Finally, he said that in a possession of drugs for sale case he would book into evidence any money recovered.
In rebuttal, the prosecutor recalled Mancini. He disputed Strong’s opinion gang members typically sell drugs for their personal benefit and not for the benefit of the gang. Based on conversations with other gang members, he repeated his belief Ramirez was an active participant in VML at the time of the offenses.
The jury convicted Ramirez on all counts and found true the criminal street gang allegation. At a bifurcated court trial, the trial court found true he suffered a prior Health and Safety Code conviction, and served two prior prison terms. The trial court sentenced Ramirez to a total term of 10 years in prison.
The trial court stayed the sentence on count 2 pursuant to section 654.
DISCUSSION
Ramirez alleges the prosecutor committed misconduct on several occasions. We will address each of his contentions in turn.
General Legal Principles
“A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
“Regarding the scope of permissible prosecutorial argument, ‘“‘a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets....”’” [Citation.]’ [Citation.]” (People v. Stanley (2006) 39 Cal.4th 913, 951-952 (Stanley).)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).)
Closing Argument
During closing argument, the prosecutor stated: “Ladies and gentlemen, it is true that the People have the burden of proof in this case. Absolutely. And as I stated to you at the outset, and I’ll state to you until the end, that is a burden that we honor and we carry very cautiously, because it’s a burden that we’re proud of. But that doesn’t mean that we have the burden and that opposing side can put forth a speculative theory.” Defense counsel stated: “Objection, your honor. That’s shifting the burden. That’s shifting the burden. I would request an instruction.” (Italics added.)
The trial court said: “I will give the jury an instruction. But you shouldn’t suggest, Ms. Price, that in any way the People do not have the burden.” The prosecutor replied, “Absolutely[, ]” and the court stated, “Because that’s inconsistent with the law.”
The prosecutor resumed her argument: “Absolutely. [¶] Let me just be clear. The burden is our burden. It’s the People’s burden to prove the case beyond a reasonable doubt. We have to prove to you, we have to give you evidence that supports our theory of the case. But if you hear another theory, another conclusion, and you have to make a determination as to whether that conclusion is reasonable or not, you have to ask yourself, what fact or evidence did I receive to support that conclusion? [¶] For you to find that there were two reasonable conclusions in this case, you have to believe that the conclusion that was made is a valid conclusion. One of the things that is very, very important to know that is that although the People have the burden of proof, anybody can subpoena witnesses. [¶] And [defense counsel], himself, at the outset said that given the means, and to have it, it is not unreasonable for somebody to possess a gram of methamphetamine. [¶] But you have zero evidence in this case that [Ramirez] had the means to spend $1[, ]500 on an item. [¶] The evidence -- you didn’t hear from a boss --” (Italics added.)
Defense counsel again objected on the grounds the prosecutor was shifting the burden. The trial court overruled the objection. The prosecutor continued on the theme Ramirez did not offer any evidence he had $1,500 to spend on anything, much less methamphetamine.
The prosecutor continued: “Ladies and gentlemen, the defense attorney told you in his opening statement this client had had a drug problem since he was a teenager. You didn’t hear any evidence of that. You cannot consider that. I know it’s hard to do. But this is a court of law and it is unfair, fundamentally unfair, for us to tell you things that you’re not going to get evidence of, because you’re human and you can’t get it out of your mind. [¶] But it’s not evidence. I don’t know why it was told to you. But it’s not evidence. There is no evidence. There is no evidence that [Ramirez] was even using drugs in January of 2007. None.” (Italics added.) The trial court overruled defense counsel’s objection the prosecutor misstated the evidence.
The prosecutor continued: “If you heard evidence that he was using drugs in 2007, then you can disregard my statement. But there is no evidence that he was using drugs in 2007. I understand he was found with a pipe two weeks before. Yes, that -- generally users use pipes. But he was never under the influence any time that the officer saw him. And even if, even if he was using drugs in January of 2007, there is no evidence that his habit was of such a nature to justify this quantity of methamphetamine. [¶] This officer has had numerous prior contacts with [Ramirez], and he’s never seen him to be under the influence of a controlled substance. [¶] Ladies and gentlemen, [defense counsel], himself, [said] that if there is a means and a habit, if there’s a means and a habit, it’s not unreasonable to possess that quantity of methamphetamine. [¶] But in this case we have no evidence of a means. We have no evidence --” (Italics added.)
Defense counsel objected the prosecutor was committing misconduct by shifting the burden of proof to the defense. Defense counsel moved for a mistrial or alternatively, an admonition. The trial court overruled the objection and denied the mistrial motion and request for an admonition. The prosecutor persisted: “Let me repeat that. [¶] There is no evidence of means or of habit in this case.”
Defense counsel argued the jury should reject Mancini’s testimony because he was not credible and could not be trusted. Defense counsel noted Mancini testified Ramirez had a large amount of money, but he did not remember how much and he did not include this information in his police report. Defense counsel mused it was strange Mancini could not remember this information, but he was able to recall numerous gang members by name and moniker. Defense counsel also noted Garwood and Strong both testified it was standard practice in a suspected possession of drugs for sale case to confiscate money and book it into evidence, and they would never return a large sum of money to a suspected seller by placing it in his truck. Defense counsel also stated Mancini wrote in his report Ramirez had bindles of methamphetamine, which he did not. Defense counsel argued that if a juror concluded a witness deliberately lied, the juror should consider not believing anything the witness said.
During rebuttal argument, the prosecutor in responding to defense counsel’s claim Mancini was not credible stated: “But here’s the bottom line. And counsel said it, himself. The defense has a right to defend themselves [sic]. The defense has a right to call witnesses. And... Taketa was with... Mancini on [the night of the offense]. He was on the witness list. If you’re going to call someone a liar, and say, oh, there was no money. Oh, you didn’t put the money back in the [truck]. Why not call... Taketa to say, you know what. I don’t remember any money. I don’t remember anything about money. I don’t remember it that way at all. The only reason you wouldn’t call him is because maybe he would corroborate and give credibility to the person that you’re calling a liar... Mancini. [¶] They had a right to call... Taketa. They are the ones that are alleging... Mancini can’t be trusted. They chose not to do that. It’s their decision.” (Italics added.)
A little later, the prosecutor implored the jury to consider the evidence “from the witness stand[]” and not be distracted by defense counsel’s argument. The prosecutor continued: “If you believe... Mancini is a slime bag, unworthy of your consideration, then you know what? Say thank you to [Ramirez], apologize to him for the inconvenience this has caused and send him on his way. Because... Mancini’s credibility is the heart of this case. He is a human being. He makes mistakes. I’m going to talk about those in just a moment. But he’s not the lying, cheating, television cop that you would see. And I’ll tell you right now, he’s not going to risk his pension, his retirement, his family’s well-being for this defendant.” (Italics added.) The prosecutor explained the money Mancini found in the truck was not the basis of the possession for sale of a controlled substance count, and Mancini did not confiscate the money because it was not a sales case.
Later, the following colloquy occurred:
“[Prosecutor]: Some people, ladies and gentleman, make accusations very freely. Foot loose and fancy free with allegations. Yesterday with an also [sic] there was an allegation I committed prosecutorial misconduct.
“[Defense counsel]: I’m going to object to that. That is prosecutorial error. There is a legal basis for that. If [the] court wants to explore that at sidebar, I would because if it is going to impu[gn] me, it’s going to deny my client the right to a fair trial at this time.” The trial court overruled defense counsel’s objection, and the prosecutor continued.
“[Prosecutor]: Yesterday, as I was standing before you, an allegation was made that I committed prosecutorial misconduct. I had done no such thing.
“[Defense counsel]: Your honor, I’m going to object. It is misconduct to shift the burden to the defense. The burden of proof is on the prosecution and that’s what was happening. I need to have that [sic] set the record straight on that. If that’s the accusation, it is prosecutorial error. It is frequently called misconduct, because it’s error. It’s a legal phrase[]. It has nothing to do with her.
“[Trial judge]: You may proceed, Ms. Price.
“[Prosecutor]: I was accused of prosecutorial misconduct in front of the 13 of you. That’s a huge allegation. It’s much like... Mancini being told that he can’t be trusted. You will mesh your life and your career into a type of services. And you work hard at it. So accusations should come with some basis. [¶] I’d ask you to think about that, when you think about the accusations made against... Mancini.” (Italics added.)
Forfeiture
“‘To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.’ [Citation.] There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition. A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 462.)
Here, Ramirez complains of the following instances of alleged prosecutorial misconduct: the prosecutor shifted the burden of proof; the prosecutor denigrated defense counsel; the prosecutor argued facts not in evidence; and the prosecutor vouched for Mancini’s credibility.
Ramirez concedes he objected only to the first two instances of alleged misconduct but not to the latter two claims. However, he asserts any objection to the other two alleged instances of prosecutorial misconduct would have been futile because the trial court overruled nearly all his objections. We agree. At the time the prosecutor made the statements Ramirez complains about, the trial court had overruled all but one of defense counsel’s objections. Ramirez risked alienating the jury if defense counsel continued to object and the trial court continued to overrule his objections. Thus, we conclude any objection to these alleged instances of misconduct would have been futile, and we will address the merits of all his claims.
Legal Analysis
Shifted Burden of Proof
Ramirez claims that during closing argument the prosecutor improperly shifted the burden of proof to him in violation of his federal constitutional rights. Not so.
“A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.]” (People v. Woods (2006) 146 Cal.App.4th 106, 112-113 (Woods).)
Here, the prosecutor argued that defense counsel offered no evidence that Ramirez had the financial means to purchase $1,500 worth of methamphetamine. Further, the prosecutor argued that defense counsel offered no evidence Ramirez was using methamphetamine at the time of the offense or that he was an addict justifying possession of such a large amount. Ramirez admitted he possessed the methamphetamine but claimed it was for his personal use and not for sale as he was a long-time drug user. Therefore, evidence he had the means to purchase such a large amount and whether he was an addict was relevant to the case. Focusing on the complained of language, the prosecutor merely pointed out Ramirez failed to offer any evidence he had the financial means to purchase $1,500 worth of methamphetamine or that he was an addict who used a significant amount of methamphetamine on a daily basis. The prosecutor was permitted to comment on Ramirez’s failure to call logical witnesses or introduce material evidence supporting his defense. The prosecutor did not argue Ramirez was required to present any evidence.
There is one comment, however, that is troubling but that does not rise to the level of prosecutorial misconduct when read in context. After stating the prosecution has the burden of proof, the prosecutor stated, “But that doesn’t mean that we have the burden and that opposing side can put forth a speculative theory.” When read in its entirety, we interpret the prosecutor’s comment to mean the prosecution has the burden of proof and the defense cannot offer a speculative theory. But when parsed, a juror could construe the prosecutor’s statement to mean the prosecution does not have the burden of proof and the defense cannot offer a speculative theory but must instead offer evidence to support its theory. It is clear this is not the law as the prosecution bears the burden of proof and the defense can rest on the state of the evidence. We caution the prosecutor to be more careful in choosing her words.
Ramirez’s reliance on People v. Hill (1998) 17 Cal.4th 800 (Hill), and Woods, supra, 146 Cal.App.4th 106, is misplaced. In Hill, supra, 17 Cal.4th at page 831, the California Supreme Court concluded the prosecutor committed misconduct when she stated: “‘There has to be some evidence on which to base a doubt.’... ‘There must be some evidence from which there is a reason for a doubt.’” In Woods, supra, 146 Cal.App.4th at page 112, the court concluded the prosecutor committed misconduct when she stated, “No, [defense counsel] is obligated to put the evidence on from the witness stand.” As we explain above, the prosecutor neither said Ramirez had to produce evidence to create a reasonable doubt nor said he was obligated to do so. Therefore, the prosecutor did not commit misconduct by improperly shifting the burden of proof to Ramirez.
Denigrated Defense Counsel
Ramirez contends that during rebuttal argument the prosecutor committed misconduct when she denigrated defense counsel and argued facts not in evidence. We disagree.
Although it is misconduct to attack the defendant’s attorney personally (Hill, supra, 17 Cal.4th at p. 832), including challenging the attorney’s personal honesty (see People v. Bemore (2000) 22 Cal.4th 809, 846), it is not misconduct to disparage the merits of the defense or artful tactics used to make the defense seem stronger than it is. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154-1155, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
During rebuttal argument, the prosecutor stated defense counsel’s comment she committed misconduct by shifting the burden of proof was irresponsible. The prosecutor stated she did not commit misconduct, and asserted defense counsel’s contention was baseless. She mused how hard she worked to “mesh” her life and her career. She concluded by saying the jury should consider defense counsel’s baseless allegations against her when evaluating the defense counsel’s allegations against Mancini.
The prosecutor did not denigrate defense counsel but instead commented defense counsel’s claim she committed misconduct by shifting the burden of proof to Ramirez was without foundation. But defense counsel’s assertion was not completely without foundation as the prosecutor’s statement regarding the burden of proof was at best confusing, as we discuss above.
More troubling though are the prosecutor’s other two statements, although we conclude these brief comments were not prosecutorial misconduct. It is improper for a prosecutor to try to inflame the passions of the jury. (People v. Medina (1995) 11 Cal.4th 694, 759-760.) The prosecutor’s attempt to inflame the jury’s passions by suggesting she had been victimized by defense counsel’s objections was improper. Needless to say, the prosecutor’s personal life and career were simply irrelevant to this or any other case. To comment on the legal merits of defense counsel’s claim of prosecutorial misconduct is one thing but to portray herself as the victim of defense counsel’s baseless claim of misconduct is another. Additionally, the prosecutor should not have asked the jury to consider defense counsel’s allegations against her in evaluating defense counsel’s characterization of Mancini’s testimony. Counsel’s duty was to convince the jury who was the more credible witness, Mancini or Strong, based upon the evidence presented at trial. The jury was charged with evaluating Mancini’s and Strong’s testimony based upon those factors provided in CALCRIM No. 226, “Witnesses.” The prosecutor should not interject herself personally into the dispute to seek sympathy from and inflame the passions of the jury.
Vouched for Prosecution Witness
Ramirez argues the prosecutor improperly argued facts not in the record and vouched for Mancini’s credibility. We agree.
“A prosecutor may not suggest the existence of ‘“facts”’ outside of the record by arguing matters not in evidence. [Citation.] Nor may a prosecutor suggest that matters outside the record establish the veracity of a witness; however, the prosecutor may assure the jury of a witness’s apparent honesty or reliability based on matters in the record. [Citations.]” (Woods, supra, 146 Cal.App.4th at p. 113.)
During rebuttal argument, the prosecutor stated, “The only reason you wouldn’t call [Taketa] is because maybe he would corroborate and give credibility to the person that you’re calling a liar... Mancini.” A little later, the prosecutor added, “But he’s not the lying, cheating, television cop that you would see. And I’ll tell you right now, he’s not going to risk his pension, his retirement, his family’s well-being for this defendant.”
In Woods, supra, 146 Cal.App.4th at page 115, the prosecutor committed numerous instances of misconduct in closing argument. The prosecutor rebutted defense counsel’s attack on a testifying officer as being a “bad cop” by implicitly suggesting all 12 unidentified, mostly non-testifying officers, would testify to the same factual version of what occurred as the officers who did testify, the 12 officers had been involved in higher stakes cases but had not risked their careers, and the 12 officers had mortgages, car loans, and children in private schools. The court opined the prosecutor committed misconduct because she argued facts not in evidence by stating the officers would testify to the same facts as the officers who did testify, and she improperly vouched for witnesses by essentially stating the officers who did testify would not risk their careers by lying and thus they must be credible. (Ibid.)
In People v. Hall (2000) 82 Cal.App.4th 813, 817 (Hall), the prosecutor represented to the jury an officer’s testimony would have substantively corroborated another officer’s testimony regarding defendant’s guilt. The court held this was reversible error, reasoning that “the prosecutor went too far when he told the jury the absent witness’s testimony would have been repetitive. The effect of this argument was to tell the jury that the witness, if called, would have testified exactly as [the officer] did, in a manner favorable to the prosecution. This was misconduct. [Citation.]” (Ibid.)
In U.S. v. Weatherspoon (9th. Cir. 2005) 410 F.3d 1142, 1146 (Weatherspoon), the prosecutor stated officers who had testified at trial “had no reason to come in here and not tell you the truth. And they took the stand and they told you the truth.... These are officers that risk losin’ [sic] their jobs, risk losin’ [sic] their pension, risk losin’ [sic] their livelihood. And, on top of that if they come in here and lie, I guess they’re riskin’ [sic] bein’ [sic] prosecuted for perjury.” The Ninth Circuit Court of Appeals concluded the prosecutor had improperly vouched for the officers based on matters outside the record when he “clearly urged that the existence of legal and professional repercussions served to ensure the credibility of the officers’ testimony.” (Ibid.)
The Attorney General asserts the prosecutor was simply responding to defense counsel’s statements that Mancini was not credible and should not be trusted. The prosecutor’s statements were more than mere pleas Mancini was honest and reliable, and should be believed.
Like Woods and Hall, the prosecutor urged the jurors to consider matters outside the record by representing what testimony Taketa would have given. The prosecutor went further than simply arguing defense counsel failed to call Taketa. The prosecutor told the jury essentially that if Taketa testified he would corroborate Mancini’s testimony. That the prosecutor stated Taketa would “maybe” corroborate Mancini’s testimony does not dissipate the harm as the prosecutor also stated that is “the only reason you wouldn’t call [Taketa].” Thus, the prosecutor’s argument left the jury with the impression the only reason defense counsel did not call Taketa to testify was because he would corroborate Mancini’s testimony. Thus, the prosecutor effectively told the jury Taketa would corroborate Mancini’s testimony and Ramirez was unable to cross-examine Taketa in violation of his Sixth Amendment rights to confront and cross-examine the uncalled prosecution witness. (Woods, supra, 146 Cal.App.4th at p. 115.)
And similar to Woods and Weatherspoon, the prosecutor vouched for Mancini’s credibility by informing the jury that Mancini was credible, and that he would not lie and risk his career. The prosecutor insinuated that if Mancini lied, he would be terminated and he would lose his pension and jeopardize his family. These were matters outside the record that bolstered Mancini’s credibility. The prosecutor’s statement was improper because she informed the jury everything Mancini testified to was truthful. The prosecutor’s comments vouching for Mancini’s credibility based on matters outside the record were such that a curative admonition would not have remedied the error. (People v. Alvarado (2006) 141 Cal.App.4th 1577, 1584 [admonition would not have cured harm in credibility contest].) We remind the prosecutor that “[b]ecause of ‘“the unique function... she performs in representing the interests, and in exercising the sovereign power, of the state, ”’ [she] is held to a standard higher than that imposed on other attorneys.” (Hill, supra, 17 Cal.4th at p. 820 [prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean prosecutor’s office and people they serve].)
Because we have concluded the prosecutor committed misconduct by arguing facts not in the record and vouching for the credibility of a witness, we must now determine whether Ramirez was prejudiced by the error. As we explain below, we conclude he was prejudiced as to count 1 but not as to count 2.
Prejudice
In assessing prejudice, we consider the cumulative effect of the prosecutor’s misconduct because the number and gravity of incidents “raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone.” (Hill, supra, 17 Cal.4th at p. 845.) In assessing the effect of the misconduct, we must factor in the “special regard the jury has for the prosecutor.” (People v. Bolton (1979) 23 Cal.3d 208, 213.) Because one of the improper arguments was of federal constitutional magnitude, we assess the cumulative effect of the misconduct under the standard applicable to federal constitutional errors that are not reversible per se. The Attorney General has the burden of proving beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24.)
Street Terrorism Substantive Offense
As to count 2, based on our review of the entire record, the prosecutor’s statements do not undermine our confidence in his conviction for street terrorism. Although the outcome of the case turned on who the jury believed was the more credible witness, Mancini or Strong, we conclude beyond a reasonable doubt the prosecutor’s misconduct did not contribute to the jury’s verdict on this count.
There are three elements to the substantive street terrorism offense: (1) active participation in a criminal street gang; (2) knowledge the gang’s members have engaged in a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal conduct by members of the gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.)
There was sufficient evidence VML was a criminal street gang because Mancini testified VML was an ongoing organization with approximately 15 active members, its primary activities were illegal drug sales, firearm possession, and felony vandalism, and its symbol was “VML” and the University of Michigan clothing. There was evidence of the statutorily required predicate offenses, one of which Frank committed. And there was evidence Ramirez willfully promoted felonious criminal conduct either by possessing for sale or simply possessing methamphetamine. Finally, there was evidence Ramirez was an active participant in VML as Mancini stated Ramirez admitted he was a former member, there were photographs showing Ramirez was wearing the VML symbol months before the offense, and he was contacted near a known VML residence weeks before the offense. Thus, based on the entire record before us we conclude beyond a reasonable doubt the prosecutor’s misconduct did not contribute to the jury’s verdict on count 2.
Possession for Sale of a Controlled Substance
With respect to count 1, Ramirez admitted he possessed the methamphetamine but argued it was for personal use and not for sale. As we explain above, this case was a credibility contest between Mancini and Strong. Mancini testified that despite the fact there was no indicia of sales and the large amount of money he claimed Ramirez possessed was not confiscated, Ramirez possessed a substantial amount of methamphetamine to sell. Strong countered Mancini’s testimony by stating possession of a large amount of methamphetamine alone does not mean the drugs were possessed for sale where the person possessing the drugs is an addict. Thus, the jury was left to decide which expert to believe. When the prosecutor stated Taketa would corroborate Mancini’s testimony and that Mancini would be terminated if he did not tell the truth, the prosecutor improperly used the weight of the prosecutor’s office to bolster her case. Thus, the prosecutor’s conduct has undermined our confidence in Ramirez’s conviction on count 1. What then is the remedy?
“An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]” (People v. Smith (1984) 155 Cal.App.3d 1103, 1188, fn. 49, disapproved on other grounds in Baluyut v. Superior Court (1996) 12 Cal.4th 826, 835.)
As our confidence in Ramirez’s conviction for count 1, possession for sale of a controlled substance, is undermined, we reduce his conviction. At trial, Ramirez admitted he possessed the methamphetamine, and the trial court instructed the jury on simple possession. Thus, we reduce Ramirez’s conviction on count 1 from possession for sale of a controlled substance to simple possession of a controlled substance.
Street Terrorism Enhancement
As to count 1, the jury found true he possessed for sale a controlled substance. The street terrorism enhancement, section 186.22, subdivision (b)(1), increases the punishment for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....” At trial, Mancini testified possession for sale of a controlled substance would benefit the gang because the profits benefit the criminal street gang. Because we have reduced Ramirez’s conviction on count 1 we must also strike the jury’s finding he committed count 1 for the benefit of a criminal street gang because there is no evidence a person who simply possesses a controlled substance does so with the specific intent to benefit a criminal street gang.
DISPOSITION
We reduce Ramirez’s conviction on count 1 from possession for sale of a controlled substance to simple possession of a controlled substance. We strike the jury’s finding he committed count 1 for the benefit of a criminal street gang. We affirm the judgment as modified. The trial court is to resentence Ramirez for simple possession of a controlled substance and street terrorism. Upon the completion of resentencing, the superior court clerk is directed to issue an amended abstract of judgment which correctly reflects the sentence imposed and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.