Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC061269A
Haerle, Acting P.J.
I. INTRODUCTION
After a one and a half-day jury trial, appellant was convicted of one count of selling methamphetamine (Health & Saf. Code, § 11379); the jury found an alleged firearm enhancement to also be true. (Pen. Code, § 12022, subd. (c).) On appeal, appellant contends his conviction should be reversed because (1) his trial counsel was deprived of an adequate opportunity to cross-examine a key prosecution witness, thus denying him the constitutional right of confrontation, (2) that counsel was ineffective for failing to raise a Fourth Amendment claim to suppress evidence of a gun seized by police when appellant was arrested, and (3) prosecutorial misconduct. We reject all of these contentions and thus affirm appellant’s conviction.
II. FACTUAL AND PROCEDURAL BACKGROUND
On April 10, 2006, appellant sold a plastic bag of methamphetamine to a confidential informant for the San Mateo County Narcotics Task Force (task force). The informant, Marian Lerna, paid appellant $200, consisting of two $100 bills, the serial numbers of which had been pre-recorded by the task force. The sale took place in Lerna’s car, parked on a street in Redwood City. During the course of the transaction, appellant pulled a gun from his waistband and showed it to Lerna.
Lerna promptly turned the drugs she had purchased over to Agent Daniel Guiney of the task force, who sent out an alert to law enforcement authorities to find and detain appellant. Approximately an hour later, two Redwood City police officers stopped appellant’s car. Appellant was driving it, and there was a passenger in the passenger seat. Appellant got out of the car and went toward the officers, but the passenger ran away from them. One of the officers pursued the passenger and caught him; when he was brought up and handcuffed, a gun fell from the passenger’s waistband. Lerna testified at trial that the gun was the same one appellant had shown her earlier.
Agent Guiney booked appellant and advised him of his Miranda rights. Appellant waived them and told the agent that he had, indeed, sold Lerna the methamphetamine for $200 and that he had shown her a handgun at the time. He also told Guiney that Lerna had given him two $100 bills; they matched the bills that the task force had given to Lerna to permit her to purchase the drugs.
On June 9, 2006, the San Mateo County District Attorney charged appellant with the one count noted earlier and the firearm enhancement. Appellant’s jury trial commenced on August 1, 2006, and the following day the jury found him guilty and the charged enhancement true. On August 30, 2006, the court sentenced appellant to five years in state prison. Appellant filed a timely notice of appeal.
III. DISCUSSION
As noted earlier, appellant presents three arguments on appeal. We will discuss these in the order presented by him in his briefs to us.
With regard to the alleged denial of the right of confrontation, that claim is based entirely on the trial court’s sustaining of prosecution objections to defense counsel’s cross-examination of Lerna. The cross-examination to which the objections were sustained pertained to Lerna’s understanding of her possible criminal liability:
“Q. (by defense counsel): As part of your arrangement with Officer Guiney, Special Agent Guiney, you are going to have to plead guilty or no contest to your case, correct?
“A. Not to Special Agent Guiney but to the D.A.
“Q. Okay, Well, with your agreement with the D.A. Is that you will have to plead guilty or no contest, correct?
“A. Yes, sir.
“Q. And are you hoping that it will be to a reduced charge?
“A. Hoping.
“Q. And if it becomes a reduced charge like simple possession, that would mean you wouldn’t go to jail? He told you that correct?
“Mr. Nightengale: Your honor, I’m sorry. Objection. Calls for speculation. Also facts not in evidence.
“The Court: I think calls for a legal conclusion. Sustained.
“Mr. Rekoon: Q. Did your attorney explain to you what the possible punishments are for simple possession of narcotics?
“Mr. Nightengale: Same objection, your honor.
“The Court: Yeah. Sustained.
“Mr. Rekoon: Q. Did your attorney tell you that in a lot of cases a first time conviction for possession results in no jail?
“Mr. Nightengale: Same objection. May we approach?
“The Court: Yeah. No I think I will sustain an objection. Any further questions with regards to communications with counsel, apart from all other problems, it may invade the attorney-client privilege. Sustained.
“Mr. Rekoon: Maybe this way.
“Q. Do you believe that if your charge is reduced that you may not go to jail?
“Mr. Nightengale: Objection. Relevance and calls for speculation.
“The Court: Yes. I think so. Sustained.”
Appellant argues that the trial court’s action in sustaining the prosecutor’s various objections denied him his right to confront Lerna. The People respond that (1) this contention was waived by the failure of defense counsel to specifically assert it at the time, (2) the trial court acted within its discretion in sustaining the objections, and (3) the error was harmless in any event. We agree with the last two arguments, and hence do not reach the “waiver” issue raised by the People.
Both the United States Supreme Court and our Supreme Court have made clear that, under the confrontation clause, trial judges retain substantial discretion to limit cross-examination of witnesses. Our Supreme Court has summarized this law as follows: “‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.”’ [Citations.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 946; see also, to the same effect: Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680; People v. Quartermain (1997) 16 Cal.4th 600, 623-624; People v. Jennings (1991) 53 Cal.3d. 334, 372; People v. Cooper (1991) 53 Cal.3d 771, 816-818; People v. Sully (1991) 53 Cal.3d 1195, 1219-1221; People v. Belmontes (1988) 45 Cal.3d 744, 780-781.)
This principle was not violated here. In the first place, on direct examination the jury was informed that Lerna expected to receive less time in custody because of her cooperation with the task force:
“ Q. (by the prosecutor): So with regard to criminal investigations, what is it that you are supposed to do?
“A. Oh, cooperate in providing some informations. But in part with those informations, I have to provide the truth –– the true informations, and if ever it needs to be that I should testify.
“Q. And that in return for you doing that, what, if anything, is part of the proposed agreement.
“A. Right now, I’m not sure, sir, because it’s not yet –– I’m –– well, we are just hoping for small consideration with my case since my case is kind of serious.
“Q. So have you been promised anything at all, or is it just that possibly you might get some consideration on your case?
“ A. No promises, but they are considering possibly a big consider –– consideration in this case.
“ Q. And to cut to the chase, it’s basically you would get less time to do; is that correct?”
“A. Yes, yes, yes.
“Q. But would you still have to plead guilty or no contest to the charges that are pending?
“ A. Yes, sir.
“Q. And you would –– is it your understanding that you would receive supervised probation as well as fines?”
“A. Yes, sir.”
Then, in the admitted part of the cross-examination quoted above, she again conceded that she had (1) agreed to plead guilty or no contest to the charge against her and (2) was “hoping” such would be “a reduced charge.” All in all, it was clearly no secret to the jury what the situation was regarding Lerna’s understandings and hopes regarding her own potential criminal liability.
The trial court’s rulings on the prosecution’s several objections were correct for the additional reason that all of the pertinent questions by defense counsel were objectionable on one ground or another. Thus, the first question clearly called for a legal conclusion, the next two equally clearly invaded the attorney-client privilege between Lerna and her attorney, and the last one called for Lerna’s speculation.
Further, there were obviously non-objectionable questions that could have been asked of Lerna based on her earlier answers. For example, defense counsel could have followed up Lerna’s “Hoping” answer with a question such as: “And you are also hoping, are you not, that you will not go to jail for that charge?” Or: “What did the D.A. tell you about the likelihood of your going to jail if you plead guilty or no contest to a reduced charge?” But neither these nor other equally appropriate questions regarding Lerna’s expectations concerning her own situation were asked on cross-examination. Under the principles of law cited above, the trial court clearly acted within its discretion in sustaining the objections it did.
Even if the trial court’s rulings were in error, there was no prejudice to appellant. In the first place, the substance of the agreement between Lerna and the prosecution was spelled out fairly thoroughly in her direct examination, quoted above. Second, and again as noted above, Special Agent Guiney testified that, after appellant had been given his Miranda admonitions, he fully and freely admitted to the substance of the transaction. Third and finally––although not noted in the briefs filed by the parties––the transaction between Lerna and appellant was videotaped by the Narcotics Task Force and the videotape shown to the jury. In light of this evidence and the lack of any evidence at all offered by the defense, it is hardly surprising that the jury took less than two hours to reach its guilty verdict.
In light of these considerations, even under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, any error by the trial court in sustaining the prosecutor’s objections to a portion of defense counsel’s cross-examination of Lerna was harmless beyond a reasonable doubt.
Appellant’s second and third arguments fare the same. Appellant’s ineffective assistance of counsel argument rests on the premise that trial defense counsel should have objected to the admission into evidence of the gun which fell from the person of the passenger who tried to flee from appellant’s car after it was stopped by the police. Appellant argues that (1) the “traffic stop” of appellant’s car was unjustified and inappropriate, (2) the police had no probable cause to detain the passenger, who thus had every right to leave the scene after the car was stopped, and (3) appellant has standing to raise this issue because of the charged firearm enhancement and the prosecution theory underlying it, i.e., that appellant originally had possession of the gun when he was with Lerna, but then gave it to the passenger when the police commenced their stop of his car.
The problem with all of this is that, as the People point out in their brief to us, on direct appeal an ineffective assistance of counsel claim simply doesn’t work “‘“[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . .” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) In that case, the court went on to explain: “An appellate court should not declare that a police officer acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed and the police and prosecution had a full opportunity to defend the admissibility of the evidence.’” (Id. at p. 267.)
In any event, appellant’s second premise, that the stop of appellant’s car was without probable cause, does not withstand scrutiny. At the trial, Agent Guiney testified that (1) he had telephone contact with Lerna both before and after her transaction with appellant, (2) another task force agent, Agent Reyes, had visual contact of Lerna as that transaction unfolded, (3) Guiney had arranged to have the transaction videotaped and it was, and (4) after Lerna phoned him and advised him that the drug transaction with appellant was completed, he had given radio directions to law enforcement officers in the area to stop appellant’s car.
That stop was made about an hour and a quarter later by two Redwood City police officers. Under these circumstances, the stop clearly had probable cause because the arresting officers had the requisite “reasonable suspicion” to detain and arrest appellant. (See, e.g., United States v. Sokolow (1989) 490 U.S. 1, 7-8; People v. Souza (1994) 9 Cal.4th 224, 230-231 (Souza); People v. Limon (1993) 17 Cal.App.4th 524, 531-533.) As the court summarized the law in Souza: “A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (Souza, supra, at p. 231.) Such was clearly the case here.
In any event, any ineffective assistance of counsel regarding the admission of the gun which fell from the passenger’s person was clearly not prejudicial to appellant under the standards articulated in Strickland v. Washington (1984) 466 U.S. 668, 691-694. This is so for all the reasons noted earlier in connection with appellant’s first claim concerning the cross-examination of Lerna, i.e., appellant’s admissions to Agent Guiney after being given his Miranda warnings, the videotaping of the transaction between Lerna and appellant, and Lerna’s uncontradicted testimony.
Finally, we also reject appellant’s final claim, i.e., misconduct of the prosecution during the course of the trial. In his opening brief, appellant asserts that the prosecutor committed misconduct by (1) “testifying in summation” that the passenger got the gun which later fell from his person from appellant, (2) arguing to the jury that Lerna should be believed because she might otherwise serve time in jail or prison, and (3) by misstating to the jury the constitutional standard of proof beyond a reasonable doubt. However, as the People point out, none of these issues were raised by any objection below and are therefore waived. (See, e.g., People v. Kipp (2001) 26 Cal.4th 1100, 1130; People v. Scott (1997) 15 Cal.4th 1188, 1217; People v. Arias (1996) 13 Cal.4th 92, 159; People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215; People v. Davis (1995) 10 Cal.4th 463, 537; People v. Price (1991) 1 Cal.4th 324, 447;.)
In any event, and for the reasons noted regarding appellant’s first argument, even if there was any misconduct in any of these portions of the prosecution’s closing argument, it was not prejudicial under the circumstances of this case. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Lambden, J. Richman, J.