Opinion
F061557 Super. Ct. No. 09CM7611
12-12-2011
THE PEOPLE, Plaintiff and Respondent, v. FERNANDO RIOS, Defendant and Appellant.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Franson, J.
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Fernando Rios, of possession of heroin in prison (count 1/Health & Saf. Code, § 4573.6) and furnishing heroin (count 2/Health & Saf. Code, § 11352, subd. (a)). In a separate proceeding, Rios admitted six prior prison term enhancements (Pen. Code, § 667.5, subd. (b)).
Rios's first trial on these charges ended in a mistrial after the jury deadlocked 11-1 in favor of conviction.
All further statutory references are to the Penal Code.
On December 8, 2010, the court dismissed one prior prison term enhancement on the People's motion. It then sentenced Rios to an aggregate 15-year term, which it imposed consecutive to the eight-year term Rios was serving when he committed the current offenses.
On appeal, Rios contends: 1) the prosecutor engaged in prejudicial misconduct during closing argument; and 2) one of his convictions does not qualify as a prior conviction within the meaning of section 667.5, subdivision (b). We will find merit to this latter contention and modify the judgment accordingly. In all other respects, we will affirm.
FACTS
The Trial Evidence
Correctional Officer Ronaldo Gallegos testified that on August 14, 2009, he was working in the 3A dining hall supervising inmates who worked there. At approximately 12:15 p.m., he was standing just outside the dining hall when he saw Rios, who worked as an inmate cook, 15 to 20 feet away by a gate on a fence that separates the area where the dining hall is located from the recreation yard. Rios reached through the gate with his right hand and touched inmate Grant's right hand, which was open. Grant then closed his hand into a fist and put his fisted hand into his right rear pants pocket. When Grant took his hand out of his pocket it was open.
Officer Gallegos kept his eye on Grant as he called Correctional Officer Lee Cahlander over and told him what he saw. Gallegos then watched Grant walk to a medical clinic window located 30 to 40 feet away from Gallegos. He did not see Grant make contact with any other inmates as he walked to the clinic. Although there were three or four inmates by the clinic, none were by the window.
Officers Gallegos and Cahlander detained Grant as he walked away from the clinic window toward them. Four to five minutes elapsed from the time that Gallegos saw Rios and Grant touch hands until the time the officers detained Grant. During that time, Gallegos took his eyes off inmate Grant for only a moment while he locked the gate. However, at that time there were no inmates around Grant who could have retrieved something from him.
Officer Cahlander testified that he searched inmate Grant after he was detained. In Grant's rear pants pocket, he found two bindles containing a brownish substance that were wrapped in clear plastic.
Thomas Sneath, a controlled substance analyst, testified that the bindles recovered from Grant contained heroin.
The defense did not present any evidence.
DISCUSSION
The Alleged Prosecutorial Misconduct
During his rebuttal argument, the prosecutor asked the jury rhetorically if they had heard the same trial as defense counsel. He then stated that during his opening statement, defense counsel had promised the jury that '"[t]he evidence will show that the defendant never possessed heroin'" and that was why the prosecutor asked whether defense counsel had heard a different trial than the prosecutor and the jury. The prosecutor also told the jury, "I'm not asking [you to] speculate, folks. I'm asking you to make a decision based on the evidence." Later, the prosecutor stated, "This case is about the evidence; It's not about [defense counsel]; It's not about me; It's not about the judge; It's not about the correctional officers." A bit later, he stated, "Without any evidence And, again, one of the things that I do agree with [defense counsel] -- and I know it might shock some of you that [p]eople on two sides of a dispute can agree on something, but we can agree his client doesn't have to put any evidence on at all. He's absolutely right. But if [defense counsel] is going to stand here and argue to you he needs some evidence to argue from and he doesn't have any."
Rios contends the prosecutor committed misconduct through the above comments because "[b]y emphasizing repeatedly the absence of evidence supporting a claim of not guilty, the prosecutor improperly [led] the jury to believe that a reasonable doubt cannot arise from lack of evidence." We disagree.
"'"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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." [Citation.]' [Citations.]" (People v. Carter (2005) 36 Cal.4th 1215, 1263-1264.)
Defense counsel did not object to the prosecutor's alleged improper comments or request a curative admonition. Rios, however, contends that no objection was necessary because the court would have simply charged the jury with an instruction defining reasonable doubt and this would not have explained to the jury that reasonable doubt can arise from the absence of evidence. He also contends that defense counsel may have feared the jury might infer that the admonition was a rebuke to him for objecting and this would intensify the force of the prosecutor's misconduct. Rios is incorrect.
Assuming the prosecutor's comments amounted to misconduct, the prejudice claimed by Rios could have been cured by an instruction to the jury that reasonable doubt can arise from the absence of evidence. (Cf. People v. Price (1991) 1 Cal.4th 324, 460.) Further, the second reason proffered for defense counsel's failure to object is speculative because it is not based on any evidence in the record or reasonable inferences drawn there from. Thus, we conclude that Rios forfeited his claim of prosecutorial misconduct by his failure to object and seek a curative admonition in the trial court.
Alternatively, Rios contends he was denied the effective assistance of counsel by defense counsel's failure to preserve this issue on appeal by objecting and requesting a curative admonition in the trial court. To prove he was denied the effective assistance of counsel, a defendant must establish that "(1) trial counsel's performance was below an objective standard of reasonableness under prevailing professional norms and (2) the deficient performance prejudiced the defendant. [Citations.] To show prejudice, a defendant must show there is a reasonable probability he or she would have received a more favorable result had trial counsel's performance not been deficient." (People v. Battle (2011) 198 Cal.App.4th 50, 76.) However, since we will conclude, infra, that no misconduct occurred, Rios cannot prevail on the first prong of this test. Further, since we will also conclude, infra, that any prejudice was harmless beyond a reasonable doubt, he cannot prevail on the second prong either. Thus, we also reject Rios ineffective assistance of counsel claim.
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However, even if this issue were properly before us, we would reject it. The prosecutor did not argue that there must be some affirmative evidence demonstrating a reasonable doubt. Nor do we find it reasonably likely that the jury would have interpreted the prosecutor's comments in that manner. Instead, we read the comments at issue as simply an argument to the jury that defense counsel had not cited any evidence in the record that supported his assertion during opening statements that "the evidence will show that [Rios] never possessed heroin." Accordingly, we conclude the prosecutor's comments did not constitute misconduct. (Cf. People v. Hill (1998) 17 Cal.4th 800, 831-832 [court concluded prosecutor's comment that "[t]here must be some evidence on which to base a doubt" although presenting a close question, could reasonably have been interpreted by jury to mean defendant had the burden of producing evidence to demonstrate reasonable doubt].)
Moreover, even if the prosecutor's comments amounted to misconduct, they did not prejudice Rios. Officer Gallegos observed Rios put his hand through a gate and touch inmate Grant's open hand. Grant then closed his hand into a fist, put his fisted hand into his rear pants pocket, and when he removed it, his hand was no longer formed into a fist. The only reasonable explanation for the conduct observed by Officer Gallegos was that Rios passed something to Grant and Grant placed whatever he received in his pants pocket. Moreover, except for the few moments it took Gallegos to secure the gate, Gallegos kept his eyes on Grant from the time he witnessed the exchange until he and Officer Cahlander detained Grant, and during that time, no other inmates approached Grant. Further, the only items found during the search of Grant were two bindles of heroin that were in his rear pants pocket. The only reasonable conclusion from these circumstances is that Rios passed one or both of the heroin bindles found in Grant's pocket to Grant when Rios's and Grant's hands touched.
The defense did not provide any evidence contradicting the prosecution's version of events. Instead, defense counsel attempted to undermine the prosecution's case by making several speculative arguments including that Grant may have already had the heroin on him prior to encountering Rios because there was no evidence that he had been searched prior to the encounter, that an exchange of heroin required planning and there was no evidence that Grant and Rios were able to communicate to plan the exchange, and that it was unlikely Rios would pass heroin to Grant because Rios had never been involved in prior "drug behavior" at the prison. Accordingly, we conclude the alleged prosecutorial misconduct could not have prejudiced Rios because the evidence of his guilt was overwhelming.
The Prior Prison Term Enhancement
When Rios committed the instant offense, he was serving a prison term for his conviction in Riverside Superior Court case No. INF048367. One of his prior prison term enhancements was based on this conviction and the prison term he was serving on it. Rios contends the conviction in case No. INF048367 could not serve as a basis for a prior prison term enhancement because he had not completed serving his prison term for that offense. Respondent concedes and we agree.
Section 667.5, subdivision (b), provides that "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony...."
"[A] prior separate prison term for purposes of section 667.5 is defined as 'a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes .... ' [Citations.] A prior separate prison term is defined as that time period a defendant has spent actually incarcerated for his offense prior to release on parole. [Citation.]" (People v. Johnson (2006) 145 Cal.App.4th 895, 908.) Therefore, since Rios had not yet completed serving the prison term imposed for his conviction in case No. INF048367 when he committed the current offenses, that conviction and prison term could not serve as the basis for imposing a prior prison term enhancement.
DISPOSITION
The prior prison term enhancement imposed based on Rios's conviction in case No. INF048367 is stricken. The trial court is directed to prepare an amended abstract of judgment consistent with this opinion and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.