P. v. Edison

Filed 4/19/06 P. v. Edison CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Gregory L. Edison appeals from the judgment entered after a jury convicted him of possession of cocaine base. (Health & Saf. Code, § 11350, subd. (a).) Appellant admitted suffering a prior serious felony conviction within the meaning of the Three Strikes law (Pen. Code, § 667, subd. (a)–(i); 1170.12, subds. (a)–(d)) and was sentenced to four years state prison. The trial court ordered him to pay a $200 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $200 parole revocation fine (Pen. Code, § 1202.45), a $50 lab analysis fee (Health & Saf. Code, § 11372.5, subd. (a)), and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)).

Appellant contends that the prosecutor engaged in misconduct and requests that we review the sealed, in-camera hearing transcripts of his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) and motion to discover the identity of a confidential informant. We affirm with directions to amend the abstract of judgment to reflect that appellant was ordered to pay the $50 lab analysis fee and the $20 court security fee.

Facts and Procedural History

On the morning of December 17, 2003, the Los Angeles County Sheriff executed a search warrant for narcotics and weapons at a Christmas tree lot in Los Angeles. The officers arrived shortly after appellant parked his pickup and started his work shift.

Eight deputies, led by Detective Jonas Shipe, searched a metal shed and Christmas trees enclosed by a chain link fence. The pickup was parked outside the fenced area and also searched. Detective Douglas Jensen found five plastic baggies under the bed liner near the rear wheel well. The baggies contained 6.1 grams of cocaine base.

Appellant claimed the narcotics were planted by the officers and brought a Pitchess motion (Pitchess v. Superior Court, supra, 11 Cal.3d 531) to discover Detective Shipe's personnel records. The trial court reviewed the personnel records in camera and determined that there was no discoverable material.

Appellant also brought a motion to unseal the search warrant affidavit. The trial court conducted an in camera hearing, found good cause to seal portions of the affidavit, and provided appellant a redacted version of the search warrant affidavit. Appellant brought a second motion to discover the identity of a confidential informant mentioned in the affidavit. The trial court conducted an in camera hearing with the affiant and found that the identity of the informant was not material to the issue of appellant's guilt or innocence.

At trial, the officers testified that they found the drugs about 40 minutes after arriving at the Christmas tree lot. Detective Jensen lifted up the bed liner of the truck and found the plastic baggies before a police dog arrived to sniff for drugs. Inside the pickup, was a receipt with appellant's name on it, pawn shop receipts, and a vehicle registration in the name of appellant's mother.

Appellant defended on the theory that the officers planted the drugs. His friends, Lionel Morris and Gilbert McGowan, stated that the officers searched the pickup twice, the second time with a police dog, and found nothing. The drugs turned up during a third search.

The jury acquitted appellant of the offense of possession for sale (Health & Saf. Code, § 11351.5) and returned a guilty verdict on the lesser offense of possession of cocaine base (§ 11350, subd. (a)).

Prosecutorial Misconduct

Appellant contends that the prosecutor engaged in misconduct in closing argument by shifting the burden of poof and vouching for the credibility of the officers. He claims that the jury was left with the impression that it was appellant's burden to prove that he did not own or possess the drugs. We find no misconduct and conclude that, even if there was, there was no prejudice.

In closing argument, appellant stated that the drugs were planted in the pickup or "perhaps someone coming by and suddenly seeing a police raid frightened [and dropped] their drugs down in there." Appellant argued: "The police go out there, eight police, nine police, twelve police show up there that morning. They're videotaping. But let's look at what is[,] what was not presented as . . . evidence. Did we hear anything about fingerprints? . . . Possession ownership is an issue. Where's the fingerprints?"

In rebuttal, the prosecutor argued: "This bit about no fingerprints [and that [the] police knew that the whole case here was going to be about possession and the ownership was going to be the issue. Well, it's going to be the issue for the defense. But not for the prosecution. The police went there. They knew they didn't plant it. They recovered it. . . . They turn it over."

Appellant made a general objection which was overruled. Because he did not state the grounds for the objection or ask the trial court to admonish the jury, the alleged misconduct was waived. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Appellant points to nothing in the record that would indicate that a specific objection and/or request for an admonition would have been futile. (People v. Boyette (2002) 29 Cal.4th 381, 432.)

Waiver aside, the alleged misconduct did not deny appellant a fair trial. (People v. Samayoa (1997) 15 Cal.4th 795. 841.) "A prosecutor's conduct 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. 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 trial court or the jury. . . . [W]hen 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.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)

The assertion that the prosecutor's comments shifted the burden to disprove possession is without merit. "Although [appellant] singles out words and phrases, or at most a few sentences, to demonstrate misconduct, we must view the statements in the context of the argument as a whole. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 522.)

Appellant argued that unlawful possession was not established unless his fingerprints were on the plastic baggies. The prosecutor, in rebuttal, argued that the absence of fingerprint evidence is "going to be the issue for the defense. But not for the prosecution."

The statement that the officers "knew they didn't plant it," referred to why the officers did not examine the baggies for fingerprints. The officers did not think ownership "was going to be the issue" at trial. The thrust of the argument was that the jury was not to infer that the officers had lied or planted the drugs merely because there was no fingerprint evidence. A prosecutor may argue that a witness is credible based on reasonable deductions and inferences from the evidence. (People v. Frye (1998) 18 Cal.4th 894, 971.) A court will not " 'lightly infer' " that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. (Id., at p. 970.)

The alleged "vouching" was based on inferences reasonably drawn from the evidence. (See People v. Anderson (1990) 52 Cal.3d 453, 479.) It was proper rebuttal to the defense argument that the officers planted the drugs. (See e.g., People v. Panah (2005) 35 Cal.4th 395, 464 [argument that defense failed to produce fingerprint or DNA evidence proper rebuttal]; People v. McDaniel (1976) 16 Cal.3d 156, 177 [prosecutor may in rebuttal, respond to defense argument that other persons were responsible for bomb].) This was clarified when the prosecutor stated: "Did these cops get up here and lie to you and plant the drug[s]? If you believe that then, yes, walk this man. If you really think they planted them, then he's not guilty."

Assuming, arguendo, that the prosecutor's comments were improper, there was no prejudice. (People v. Crew (2003) 31 Cal.4th 822, 839.) The jury was instructed that the counsel's argument was not evidence (CALJIC 1.02), that it must base its decision on the evidence (CALJIC 1.00), and that only it could determine the credibility of a witness (CALJIC 2.20). The jury was instructed that actual or constructive possession was an element of the charged offense and lesser offense (CALJIC 1.24, 12.01, 12.00), and that it must acquit if the prosecution failed to prove possession beyond a reasonable doubt (CALJIC 2.90).

It is presumed that the jury relied on the instructions, not the arguments, in convicting appellant. (People v. Morales (2001) 25 Cal.4th 34, 47.) Based on the trial court's instructions and the context of the prosecutor's remarks, it is not reasonably likely that the jury understood the rebuttal argument to mean that appellant had the burden of proving his innocence. (People v. Frye, supra, 18 Cal.4th at p. 973.) The alleged misconduct did not prejudice appellant or result in an unfair trial. (See e.g., People v. Hardy (1992) 2 Cal.4th 86, 172-173.)

Pitchess Motion

Before trial, appellant made a Pitchess motion to discover prior citizen complaints against Detective Shipe. (Evid. Code, §§ 1043, 1045; Pitchess v. Superior Court, supra, 11 Cal.3d 531.) The trial court examined the personnel records in camera and determined that there were no complaints or allegations of the detective planting evidence. Pursuant to appellants' request, we have reviewed the sealed transcript and conclude that the trial court did not abuse its discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221; People v. Hughes (2002) 27 Cal.4th 287, 330.)

Confidential Informant

Appellant also requests that we review the transcript of the in camera hearing on his motion to unseal the search warrant affidavit. The trial court found good cause to seal portions of the affidavit and provided appellant a redacted version of the affidavit. In a second in camera hearing, the trial court found that the identity of the confidential informant mentioned in the search warrant affidavit was not material to the issue of appellant's guilt or innocence.

Pursuant to appellant's request, we have reviewed the transcript of the in camera hearing and conclude that the trial court properly ordered the disclosure of all relevant information. There was no abuse of discretion. (People v. Hobbs (1994) 7 Cal.4th 948, 976-977.)

Amended Abstract of Judgment

At the sentencing hearing, the trial court ordered appellant to pay a $50 lab analysis fee (Health & Saf. Code, § 11372.5, subd. (a)) and a $20 court security fee (Pen. Code, § 1465.8, subd. (a)(1)). The Attorney General notes that the abstract of judgment does not list the lab fee or court security fee. In the interest of judicial economy, an appellant court may correct the abstract of judgment to conform to the trial court's pronouncement of judgment. (People v. Smith (2001) 24 Cal.4th 849, 854; People v. Rodriguez (2000) 80 Cal.App.4th 372, 378-379.)

The abstract of judgment is modified to reflect the $50 lab analysis fee and the $20 court security fee. The clerk of the superior court is ordered to prepare and forward an amended abstract of judgment to the Department of Corrections.

As modified, the judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Raul Anthony Sahagun, Judge

Superior Court County of Los Angeles

______________________________

Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Alan D. Tate, Deputy Attorney General, for Plaintiff and Respondent.

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