P. v. Davis

Filed 8/29/06 P. v. Davis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Larry Davis of one felony, viz., possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378; count 1), and two misdemeanors, viz., possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c); count 3), and possession of narcotics paraphernalia (Health & Saf. Code, § 11364; count 4). The court imposed a two-year prison sentence on count 1 and concurrent six-month terms on each of counts 3 and 4. The court also ordered that appellant register with appropriate law enforcement entities, pursuant to Health and Safety Code, section 11590.^[1]

On appeal, appellant contends (1) the court erred in instructing the jury in accordance with CALJIC No. 2.06 that jurors could infer consciousness of guilt from attempts to suppress evidence; (2) the prosecutor committed misconduct during closing argument; and (3) if appellant’s claim of prosecutorial misconduct is barred by counsel’s failure to object, such failure violated appellant’s constitutional right to effective assistance of counsel. We will affirm.

FACTS

On May 2, 2005, Bakersfield Police Department detectives and officers went to a house in Oildale, where they encountered appellant. One of the detectives found, in a search of appellant’s person, a baggie containing approximately one-half gram of a white substance suspected to be methamphetamine and approximately three and one-half grams of marijuana.

A motorcycle registered to appellant was parked approximately 10 feet away from the front door of the house. Inside a nylon bag affixed to a handle bar was a plastic bag containing a crystalline substance that looked like, but was not, methamphetamine. According to the expert testimony of one of the detectives, drug dealers commonly use such substances as “cutting agent[s].”

Inside the house detectives found a safe. Appellant claimed that the safe did not belong to him and that he did not know the combination. Detectives broke open the safe and inside found a metal box and a digital scale of the kind commonly used by drug dealers. The metal box contained, inter alia, the following: a plastic bag containing 17.8 grams of a substance containing methamphetamine; more than 10 small plastic bags that could be used for packaging methamphetamine; a cell phone bill in appellant’s name; a wallet containing a driver’s license and Social Security card, each bearing appellant’s name; syringes; two metal spoons containing what appeared to be methamphetamine residue; a pipe for smoking marijuana; and two separate quantities of marijuana, of 1.5 grams and 37.2 grams, respectively.

A detective found a glass pipe of the kind used for smoking methamphetamine under the cushion of the couch in the living room.

On top of the refrigerator in the kitchen a detective found 3.5 grams of marijuana and two syringes.

Appellant told detectives the following. He had lived in the house “intermittently” for the past two months. His wife and the couple’s two children had lived there “until recently,” but his wife had taken the children and moved out because of what appellant described as his “habit.” Appellant stated he was a “junky.”

One of the detectives opined, based on his training and experience, that given the amount of methamphetamine found and the presence of the scale and the packaging material, the methamphetamine was possessed for the purpose of selling it.

Another one of the detectives, based on his training and experience, opined as follows. Although it is “possible” that a person who possessed methamphetamine for personal use rather than for sales would own a scale, “it [is] most common that the dealers are the ones who actually are weighing [methamphetamine].” Methamphetamine users are typically “unable” to buy the drug “in bulk” because it is “very expensive”

In closing argument, defense counsel conceded that methamphetamine was found on appellant’s person; did not seriously dispute the methamphetamine found in the safe belonged to appellant; and devoted her argument to the claim that it was mere “speculation” that appellant possessed methamphetamine for purposes of selling it. She made no reference to the misdemeanor charges.

DISCUSSION

CALJIC No. 2.06

The court instructed the jury, in a modified version of CALJIC No. 2.06, as follows: “If you find that the defendant attempted to suppress evidence against himself in any manner, such as by the intimidation of a witness, by an offer to compensate a witness, . . . by concealing evidence[] by use of the safe that was part of the evidence, this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”^[2]

Appellant contends the evidence adduced at trial did not support the inference he suppressed evidence, and therefore the court erred prejudicially in instructing the jury pursuant to CALJIC No. 2.06 as set forth above. Specifically, he argues “[t]here was no evidence whatsoever” that he intimidated any witness, offered to compensate any witness, destroyed evidence or, “after the police became involved and any contraband became evidence,” attempted to conceal evidence.

“ ‘It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.’ “ (People v. Hart (1999) 20 Cal.4th 546, 620; accord, People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case”].) “Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference.” (People v. Hannon (1977) 19 Cal.3d 588, 597.)

We first address appellant’s contention that the evidence did not support an instruction appellant concealed or attempted to conceal evidence in the safe. In support of this claim, appellant asserts “the contraband was there [in the safe] before the arrival of the police,” and he suggests his actual reason for keeping contraband in the safe was not to conceal it from law enforcement, but to keep his valuable, albeit illegal, property safe from thieves.

Appellant’s challenge to this portion of the instruction is without merit. From the evidence, one reasonably could draw several possible conclusions, including that appellant kept contraband in his safe for security reasons. However, another permissible conclusion is that appellant wanted to conceal his contraband from all prying eyes, including those of police who might happen to enter his house. Thus, the evidence supports the instruction that the jury could infer consciousness of guilt if it found appellant “conceal[ed] [or attempted to conceal] the evidence[] by use of the safe,” regardless of whether he put the contraband in his safe before or after the police arrived on May 2, 2005.

However, we agree with appellant that there was no evidence he attempted to influence any witness by intimidation or compensation or that he destroyed or attempted to destroy evidence. Therefore, the references to those activities in the challenged instruction constituted error. We turn now to the question of whether such error requires reversal.

Appellant argues we must apply the standard of review set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman), and therefore reverse unless the People establish the erroneous instruction was harmless beyond a reasonable doubt. He bases this claim on People v. Quach (2004) 116 Cal.App.4th 294. As appellant notes, in that case the court applied the Chapman harmless error test. However, the error involved there was the court’s failure to instruct correctly on self-defense. Nothing in Quach suggests the Chapman test is applicable to the type of instructional error involved here. Rather, our Supreme Court has indicated, in People v. Hannon, supra, 19 Cal.3d 588, that such error is subject to review under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and therefore is not prejudicial unless it is reasonably probable that a verdict more favorable to appellant would have resulted if the erroneous version of CALJIC No. 2.06 had not been given. (People v. Hannon, supra, 19 Cal.3d at p. 603 [applying Watson standard to giving of CALJIC No. 2.06 where instruction not supported by evidence, and finding error prejudicial].)

Alternatively, appellant argues, relying on People v. Hannon, supra, 19 Cal.3d 588, the error was prejudicial under the Watson standard because, he asserts, the challenged instruction, by suggesting to the jury that appellant bribed and intimidated witnesses and destroyed evidence, had the likely effect of “destroy[ing] the credibility of [appellant]” and “utterly emasculat[ing] whatever doubt the defense has been able to establish on the question of guilt.” (People v. Hannon, supra, 19 Cal.3d at p. 603.) We disagree.

Hannon was a “close case,” and the prosecutor specifically argued to the jury that it should draw an inference of consciousness of guilt from purported efforts by the defendant to suppress evidence. (People v. Hannon, supra, 19 Cal.3d at pp. 602-603.) Here, by contrast, there was no serious dispute appellant possessed the contraband found on his person and in and around his house; the only seriously disputed issue was whether appellant possessed the methamphetamine for purposes of sales; and the evidence on that point, as on each of the elements of each offense, was overwhelming. Moreover, the prosecutor, in closing argument, never alluded to the challenged instruction or urged the jurors to infer consciousness of guilt from appellant’s conduct.

In our view there is no reasonable likelihood the jury concluded appellant bribed or intimidated any witness or destroyed or attempted to destroy evidence. As appellant asserts, there was no evidence of such matters. And the jury was instructed as follows: “you must determine what facts have been proved from the evidence received in the trial and not from any other source”; “[a] fact is something proved by the evidence or by stipulation”; “[y]ou must decide all questions of fact in this case from the evidence received in this trial and not from any other source”; “[y]ou must not . . . consider or discuss facts as to which there is no evidence”; “[w]hether some instructions apply will depend on what you find to be the facts”; and “[d]isregard any instructions which apply to facts determined by you not to exist.” We presume the jury understood, correlated and followed these instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852 [“[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions”].)

As our Supreme Court stated in finding “harmless under any standard” the giving of CALJIC No. 2.04, a similar consciousness-of-guilt instruction,^[3] “ ‘[A]t worst, there was no evidence to support the instruction and . . . it was superfluous. As previously explained, evidence of defendant’s guilt was strong. Under the circumstances, reversal on such a minor, tangential point is not warranted.’ “ (People v. Jackson (1996) 13 Cal.4th 1164, 1225.)

Prosecutorial Misconduct

Appellant argues that in two instances during closing argument, the prosecutor engaged in misconduct, thereby violating appellant’s due process rights.

The first instance of claimed misconduct occurred when the prosecutor told the jury that a request by the jury that testimony be read back “involves a great deal of work on the part of the court reporter . . . . [I]t takes some considerable effort to locate and read back that testimony. So just be aware that it does involve that . . . effort, but it is, of course, available to you.” The foregoing comments, appellant contends, violated his right to a fair trial and due process of law.

The second instance of claimed misconduct occurred when the prosecutor told the jury that its obligation was “to determine on the basis of the evidence what that evidence justifies,” and “not to compromise,” but that “[defense] [c]ounsel would like very much to see you compromise . . . .” (Emphasis added.) Appellant contends the italicized portion of the preceding quotation constituted an impermissible attack on defense counsel’s integrity.

Prosecutors are given “ ‘ “ ‘wide latitude during argument . . . .’ “ ‘ “ (People v. Hill (1998) 17 Cal.4th 800, 819.) “Prosecutors, however, are held to an elevated standard of conduct.” (Ibid.) The imposition of this higher standard is justified by their “unique function . . . in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.) “The applicable federal and state standards regarding prosecutorial misconduct are well established.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Under federal constitutional standards, a prosecutor’s “ ‘ “intemperate behavior” ‘ “ constitutes misconduct if it is so “ ‘ “ ‘egregious’ “ ‘ “ as to render the trial “fundamentally unfair” under due process principles. (Ibid.) Under state law, a prosecutor commits misconduct by engaging in “deceptive or reprehensible” methods of persuasion. (Ibid.) Where a prosecutor has engaged in misconduct, the reviewing court considers the record as a whole to determine if the alleged harm resulted in a miscarriage of justice. (People v. Duncan (1991) 53 Cal.3d 955, 976-977.)

However, “ ‘ “To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.” [Citations.]’ “ (People v. Farnam (2002) 28 Cal.4th 107, 167.)

Appellant concedes he made no objection to the claimed instances of prosecutorial misconduct but, he argues, in summary fashion, his claim is cognizable on appeal because any objection would have been “[f]utile.” We are not persuaded. Assuming for the sake of argument that the prosecutor engaged in misconduct as appellant contends, the court immediately could have corrected the prosecutor’s statements and warned him not to repeat them. Accordingly, appellant’s claim of prosecutorial misconduct is barred.

Ineffective Assistance of Counsel

Appellant argues that if his claim of prosecutorial misconduct is deemed forfeited by his trial counsel’s failure to object, such failure constituted constitutionally inadequate representation and therefore reversal is required. We disagree.

“A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 386.) However, “ ‘there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ “ (People v. Cox (1991) 53 Cal.3d 618, 656.)

We need not reach the merits of appellant’s claim. As indicated above, the evidence against him was overwhelming. It is virtually inconceivable appellant would have achieved a more favorable result in the absence of counsel’s purported failings.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the sentences imposed on counts 3 and 4 and the Health and Safety Code section 11590 registration order. The trial court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

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^* Before Cornell, Acting P.J., Gomes, J., and Dawson, J.

^[1] As the People note, the abstract of judgment reflects neither the sentences on counts 3 and 4 nor the Health and Safety Code section 11590 registration order. The People contend, and appellant does not dispute, this court should direct the trial court to amend the abstract to judgment to correct these omissions. We agree, and will do so. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of abstract of judgment].)

^[2] CALJIC No. 2.06 provides: “If you find that a defendant attempted to suppress evidence against [himself] [herself] in any manner, such as [by the intimidation of a witness] [by an offer to compensate a witness] [by destroying evidence] [by concealing evidence] [by _______], this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”

^[3] CALJIC No. 2.04 instructs that the jury may infer consciousness of guilt “if you find that a defendant attempted to or did dissuade a witness to testify falsely or tried to fabricate evidence to be produced at trial . . . .”