P. v. Haghighi

Filed 10/24/06 P. v. Haghighi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.

Mansour Haghighi appeals a judgment following his jury conviction on one count of possession for sale of opium, a controlled substance (Health & Saf. Code, § 11351)^[1] and one count of possession of opium (§ 11350, subd. (a)). On appeal, he contends the trial court erred by: (1) not giving a unanimity instruction; (2) denying his Penal Code section 1118.1 motion to dismiss the possession for sale count for insufficiency of the evidence; (3) denying his motion to dismiss the possession count for vindictive prosecution; (4) admitting a belatedly disclosed letter into evidence; (5) denying his in limine motion to exclude evidence of his 1963 residential burglary conviction; and (6) committing cumulative error.FACTUAL AND PROCEDURAL BACKGROUND

In August 2004, the United States Drug Enforcement Agency (DEA) was informed by German authorities that they had intercepted a suspicious package, which might contain opium, addressed to Haghighi at the San Diego business address of United Brokers Realty (UBR). The package was sent by "Marry Jones" from Mumbai (formerly Bombay), India.

On the package's arrival in the United States, the DEA arranged to have Daryl Brooks, an undercover postal inspector, conduct a controlled delivery of the package to Haghighi. At about noon on August 24, Brooks, wearing a mail carrier uniform and driving a mail truck, took the package to UBR's address and asked for Haghighi. UBR's receptionist informed Brooks that Haghighi had just left. She called Haghighi and he agreed to accept delivery of the package at his home address.

At about 3:00 p.m., Brooks went to Haghighi's home address and found Haghighi outside the home. When Brooks asked him if he knew Marry Jones, Haghighi said he did. When asked if he was expecting a package, Haghighi said, "No." Brooks then asked Haghighi: "You sure you know Marry Jones?" Haghighi replied, "Yes, I know Marry Jones." Brooks then had Haghighi sign for the package. Haghighi took the package and began walking back toward his home. Brooks asked him to stop and engaged him in conversation, allowing DEA agents to approach. As the agents approached, Haghighi dropped the package over the front yard fence onto the sidewalk.

Agents detained and questioned Haghighi. Haghighi denied the package belonged to him. Agents retrieved and opened the package. It was a wooden box, wrapped in burlap, and contained decorative elephant pieces. It had a false bottom. When agents opened the false bottom, they found a flat, pliable substance, wrapped in brown packing tape, the size of a sheet of paper and about one-fourth of an inch thick. Agents asked Haghighi if he knew what the substance was, and he replied he did not. A subsequent laboratory test showed the substance contained approximately 491 grams of opium.^[2]

Haghighi consented to a search of his home. In a bedroom/office closet, agents found a computer carrying case containing a black, tar-like substance wrapped inside clear cellophane. A field test showed the substance contained opium.^[3] A subsequent laboratory test showed the substance contained approximately 10 grams of opium.

After waiving his Miranda^[4] rights, Haghighi told agents he had received packages before at both his home and business addresses. He received packages for friends from India and other countries. He also said he received packages containing rugs and trinkets, which he would sell in Orange County. However, he could not tell the agents the locations, businesses, or names of those places in Orange County. Haghighi said "Firouz Abbassi" was a man to whom he had delivered packages before, but he did not provide further details about Abbassi. When agents placed the substance found in the closet in front of Haghighi and asked him what it was, he stated it was opium he kept in the house for friends who visited and liked to smoke it. Haghighi said he used the office space at UBR to meet with clients. Agents did not arrest Haghighi that day. Haghighi told them he would call them if he received another package containing opium.

On October 4, German officials seized another suspicious package addressed to Haghighi at his UBR address. It was sent by "K. Rowsi" from Mumbai, India. On its arrival in the United States on October 6, agents opened the package and found four flat panels of opium hidden in the sides of the box. The box also contained some tea, incense sticks, hair ornaments, and other decorative items. The agents removed the opium and repackaged the box to attempt a controlled delivery. A subsequent laboratory test showed the seized opium had a net weight of approximately 900 grams.

At about 11:30 a.m. on October 7, Suzette Cadena, an undercover postal inspector, posing as a mail carrier, went to UBR's address to deliver the package to Haghighi. When she was told Haghighi was in a meeting, she left the package with a secretary. After Cadena left, Haghighi left the building without the package and walked to his car. Agents arrested him. After waiving his Miranda rights, Haghighi told agents that he did not know anything about the package and was on his way home to get the telephone number of one of the agents. However, his wallet contained that agent's business card. Agents found a note inside Haghighi's briefcase that stated: "There's a package for you below." Agents showed Haghighi a copy of a letter from K. Rowsi, written in Farsi, they found inside the package and asked him what it said. Haghighi stated the letter said the package was sent from a friend and asked him to hold it until he received further instructions for its disposition.

An information charged Haghighi with three offenses: (1) count 1 for possession for sale of opium, a controlled substance, on October 7, 2004; (2) count 2 for possession for sale of opium on August 24, 2004; and (3) count 3 for possession of opium on August 24, 2004. At trial, DEA agents and postal inspectors testified regarding the events described ante. The prosecution also presented the testimonies of some of Haghighi's coworkers at UBR. Elissa Lujan, the receptionist at UBR on October 7, 2004, testified that when she tried to hand the package to Haghighi he stated it was not his. He seemed abrupt and left the office in a hurry. Fred Gregory, UBR's manager, testified Haghighi worked as a real estate agent/independent contractor at UBR since January 28, 1999. Haghighi received packages from international addresses, including Pakistan, every few months. The packages were noticeable because they were wrapped in whitish heavy cloth. UBR's records showed Haghighi had not earned any commissions for two years before the October 2004 incident. Sherry Varner testified that she worked at UBR from March 2001 until July 2004, first as a receptionist and then as an administrator. During that period, Haghighi received packages wrapped in burlap from international addresses. Haghighi would pick up the packages and go to the parking lot. He would later reenter the office with trinkets, such as incense, a wood-carved box, or a pencil cup. He told Varner he could earn between $2,000 and $3,000 by selling the package's items in Los Angeles.

Glendale Police Officer Joe Allen, an expert on opium, testified that opium was often imported into the United States in packages delivered by FedEx, UPS, or DHL. Recipients of those packages were either distributors who broke down the opium and parceled it to other persons, or facilitators who delivered the package to another person for distribution. Facilitators usually were persons not considered to be involved in a criminal organization. Facilitators get paid for their services. He testified that opium is smoked in small quantities, usually about one-half gram to one and one-half grams at a time. Opium is distributed in "cells," usually consisting of close-knit friends and acquaintances of Middle Eastern descent. In Allen's opinion, a box shipped from India containing 500 grams of opium and addressed to a specific individual would, on its receipt, constitute possession for sale of that opium.

Haghighi did not testify or present the testimony of any witnesses in his defense. In closing argument, his counsel argued Haghighi was an innocent recipient of the packages, which he held for friends and acquaintances, and had no knowledge they contained opium. Counsel also argued Haghighi never accepted delivery of the October 7, 2004 package.

The jury found Haghighi guilty on counts 2 and 3 (relating to the August 24, 2004 incidents) and not guilty on count 1 (relating to the October 7, 2004 incident). The trial court imposed a middle term of three years for count 2 and a concurrent middle term of two years for count 3.

Haghighi timely filed a notice of appeal.

DISCUSSION

I

Unanimity Instruction

Haghighi contends the trial court erred by not giving a unanimity instruction (e.g, CALJIC No. 4.71.5 or CALJIC No. 17.01) regarding agreement on the specific acts committed on August 24, 2004, that constituted the offenses alleged in counts 2 and 3. He argues that absent a unanimity instruction, the record is not clear regarding which batch of opium found on August 24 (i.e., in the package or in the closet) was the basis for each of the jury's guilty verdicts on counts 2 and 3.

A

"[T]o find a defendant guilty of a particular crime, the jurors must unanimously agree that the defendant committed the same specific act constituting the crime within the period alleged. [Citation.]" (People v. Crow (1994) 28 Cal.App.4th 440, 445; see also Cal. Const., art. I, § 16; People v. Jones (1990) 51 Cal.3d 294, 321.) "When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] The duty to instruct on unanimity when no election had been made rests upon the court sua sponte. [Citation.]" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)

B

Haghighi asserts the trial court was required to give a unanimity instruction regarding the specific acts that constituted the offenses alleged in counts 2 and 3, impliedly arguing the prosecutor did not elect the specific act (i.e., which batch of opium) on which each of those counts was based. However, the premise of Haghighi's assertion is not supported by the record. The record shows the prosecutor did elect the specific act (or batch of opium) that provided the basis for each of counts 2 and 3. As the People note, the jury verdict forms themselves also identified the batch of opium related to each count. The verdict form for count 2 stated the possession for sale charge was "as charged in Count Two of the Information. (to wit: Opium in the package) (8/24/04 incident)." The verdict form for count 3 stated that the possession charge was "as charged in Count Three of the Information. (to wit: Opium in the house) (8/24/04 incident)." Therefore, the verdict forms showed count 2 related to the 491 grams of opium found in the package on August 24, 2004, and count 3 related to the 10 grams of opium found in the computer carrying case in the closet on that date.

Furthermore, the prosecutor in closing argument selected which specific acts or batches of opium related to counts 2 and 3. He stated: "Count [2] is also possession of opium for sale, and that's going to deal with the August package, the first package. So we've got counts 1 and 2, both possession for sales counts, both deal with the two different packages, although in opposite numerical order. And then count 3 is possession of opium not for sale, just straight possession. And that deals with the opium that was found in the closet. So we've got these three different crimes. The opium in the second package, the opium in the first package, and the opium in the closet. And you're going to be asked to decide on each." Later in arguing Haghighi's guilt on count 2, the prosecutor stated: "Now, let's look at the facts in the case, so let's talk about the first package. And this is actually count 2, but I'm talking about the August 24th package and you remember [it] was delivered first to his work and then they went to his home." Finally, in arguing Haghighi's guilt on count 3, the prosecutor stated: "Let's talk briefly about count 3, which is the possession of opium, that's the opium in the closet. And that one, I don't think there's going to be much argument on that. . . . . . . . . . So in this case, the opium in his house, he admitted to agent Pullen that it was his; he admitted that he knew it was opium; he admitted that he gave it to others, for others to use; and we heard also expert testimony that 10 grams is more than sufficient for, you know, several doses of opium. . . . That opium in his house, clearly, even though it's in his closet, not in his hand, he has the control and the right to control over than opium . . . ." The prosecutor also clarified for the jury that the verdict form for count 2 related to the August 2004 package and the verdict form for count 3 "deals with the opium in the closet, and that will say opium in the house."

Finally, Haghighi's counsel in closing argument acknowledged the specific acts or batches of opium related to counts 2 and 3. In arguing on count 2, he stated: "Let's move on then to the August 24th, that's count 2. Now, on that occasion, we have a package and it's wrapped pretty crudely. And now apparently this package here contains approximately 500 grams of opium." Later, in arguing on count 3, he stated: "Now, we do have count 3 to deal with. And you know what, I'm not going to pull any rabbits out of the hat. My client possessed that 10 grams of opium that was in the closet." He conceded Haghighi was guilty on count 3.

Based on the jury verdict forms, the prosecutor's closing argument, and the closing argument of Haghighi's counsel, we conclude the prosecutor "elect[ed] the specific act relied upon to prove" each of count 2 and 3. (People v. Melhado, supra, 60 Cal.App.4th at p. 1534.) The prosecutor elected the batch of 491 grams of opium found in the August 24, 2004 package as the basis for count 2 and the batch of 10 grams of opium found in Haghighi's closet on that date as the basis for count 3. By finding Haghighi guilty on counts 2 and 3, the jury necessarily agreed unanimously on the specific act constituting each of those offenses. Accordingly, the trial court had no duty to instruct on unanimity with either CALJIC No. 4.71.5 or CALJIC No. 17.01 as suggested by Haghighi (Melhado, at p. 1534) and the court did not err by not so instructing.

II

Penal Code Section 1118.1 Motion to Dismiss Count 2

Haghighi contends the trial court erred by denying his Penal Code section 1118.1 motion to dismiss count 2 based on insufficiency of the evidence.

A

Penal Code section 1118.1 provides:

"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. . . ."

"A trial court should deny a motion for acquittal under [Penal Code] section 1118.1 when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged. [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 175.) Therefore, in deciding a Penal Code section 1118.1 motion to dismiss, a trial court applies the same substantial evidence standard of review as an appellate court applies when it reviews the sufficiency of the evidence to support a conviction.

When a defendant challenges his or her conviction for insufficient evidence on appeal, we apply the substantial evidence standard of review. "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ' "isolated bits of evidence." ' [Citation.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics added in Cuevas.) We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones, supra, 51 Cal.3d at p. 314.) Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (Ibid.)

B

In moving for dismissal of count 2 (possession for sale of the August 24, 2004 package) pursuant to Penal Code section 1118.1, Haghighi argued there was insufficient evidence only as to elements of knowledge and control.^[5] He argued he "never had control of that package because agents immediately jumped that fence and confiscated that package" and therefore lacked knowledge that there was opium inside the package. The trial court denied Haghighi's motion to dismiss count 2.

On appeal, Haghighi argues there was insufficient evidence regarding the element that he possessed the August 24, 2004 package "for sale" (i.e., that he possessed it with the specific intent to sell it or that it be sold by another).^[6] (See generally CALJIC No. 12.01; People v. Palaschak (1995) 9 Cal.4th 1236, 1242.) Haghighi's entire substantive argument is as follows:

"The trial court allowed hypothetical expert evidence to meet the prosecution's burden . . . . . . . . . . In the present case, the prosecution did not present any evidence of sales and only presented the opinion of an expert to bolster its position."

Therefore, Haghighi argues there was insufficient evidence of his specific intent to sell because the prosecutor was allowed to present expert testimony and did not present any evidence that he (or anyone else) sold any opium.

Considering the record favorably to support the trial court's finding, we conclude there is substantial evidence to support a finding that Haghighi had the requisite specific intent for count 2 (possession for sale). The package delivered to Haghighi on August 24, 2004, was found to contain 491 grams of opium. A DEA agent testified at trial that the street value of that opium was $15,000 to $20,000. Allen, the opium expert, testified that the wholesale value of a kilogram of opium was about $20,000 and its street value (after being broken down) was $30,000 to $35,000. He further testified that a person would use only one-half to one and one-half grams of opium at a time. He testified that a box shipped from India with 500 grams of opium would constitute possession for sale.^[7] Haghighi's possession of such a large amount of opium would, in itself, support a reasonable inference that he possessed it for sale. (People v. Grant (1969) 1 Cal.App.3d 563, 570 [possession of a large amount of drugs "itself affords a reasonable inference of possession for sale."], disapproved on another ground in People v. Fleming (1981) 29 Cal.3d 698, 707.) This inference is further supported by Allen's expert testimony that a large amount (i.e., 491 grams) of opium would be possessed for sale. Furthermore, Varner, Haghighi's former coworker, testified that he told her he sold the items in the boxes (e.g., trinkets) in Los Angeles for between $2,000 and $3,000, which also supports an inference that Haghighi possessed the August 24, 2004 package for sale. The trial court (and jury) could reasonably infer that the trinkets and other presumably lost-cost items shipped in the boxes Haghighi received could not possibly, by themselves, be worth $2,000 to $3,000. It could be reasonably inferred that Haghighi sold items other than those trinkets and low-cost items (i.e., opium hidden in the boxes) in Los Angeles and earned $2,000 to $3,000 from each sale.^[8]

Finally, the record shows Haghighi was familiar with the quantity of opium necessary for personal use, because he admitted the 10 grams of opium found in his closet was possessed for use by friends who came to visit. Inferring therefrom that Haghighi did not personally use opium, it could be reasonably inferred his possession of the large quantity of opium in the August 24, 2004 package (i.e., 491 grams) was not for personal use, but rather for sale. Based on the whole record, we conclude there was substantial evidence to support a reasonable inference that Haghighi possessed the August 24, 2004 opium in the package with the specific intent to sell it or that it be sold by another. Therefore, the trial court did not err by denying Haghighi's Penal Code section 1118.1 motion to dismiss count 2.

III

Motion to Dismiss Count 3 for Vindictive Prosecution

Haghighi contends the trial court erred by denying his motion to dismiss the possession count (i.e., count 3) for vindictive prosecution.

A

On July 19, 2005, Haghighi filed a joint motion to dismiss the count 3 possession charge based on vindictive prosecution together with a Penal Code section 995 motion to set aside count 3 of the amended information based on the ground that he was bound over for trial without reasonable or probable cause. In moving for dismissal of count 3 based on vindictive prosecution, Haghighi noted that on October 14, 2004, the People filed a felony complaint alleging two counts of possession for sale. After the preliminary hearing on January 13, 2005, the court bound Haghighi over on only one of the two counts (count 2 based on the August 2004 incident), finding the element of possession was not supported by the evidence on the other count (count 1 based on the October 2004 incident). However, on January 27, the People nevertheless filed an information alleging again both counts of possession for sale (i.e., counts 1 and 2). Haghighi filed a Penal Code section 995 motion to dismiss both counts of possession for sale, but the court denied that motion and set a trial date for July 7. On July 7, the People filed an amended information adding count 3 (possession based on the August 2004 incident). Haghighi was arraigned on the amended information and pleaded not guilty. In Haghighi's July 19 motion to dismiss based on vindictive prosecution, he (apparently) argued count 3 should be dismissed because the People added that count vindictively to punish him.

The People opposed Haghighi's motions, arguing they had the power to amend the information after Haghighi was arraigned on the original information. Furthermore, they argued Haghighi was aware of the basis for count 3 (regarding his possession of 10 grams of opium found in the closet) since the time of exchange of discovery in October 2004. They also argued there was no presumption of vindictiveness because count 3 was added before trial, thereby (presumably) imposing on Haghighi the burden to prove the addition of count 3 was vindictive.

In reply, Haghighi appeared to clarify that his motion to dismiss was based on the People's vindictive addition of count 3 because he successfully obtained dismissal of count 1 (possession for sale based on October 2004 incident) after the preliminary hearing and also because he exercised his right to a jury trial.

Although the record does not contain any documents (e.g., reporter's transcript or clerk's minutes) in which the trial court expressly denied Haghighi's motion to dismiss based on vindictive prosecution, in the court's minutes dated August 10, 2005, the court checked the appropriate boxes to select the following printed statement: "Defendant's motion to dismiss pursuant to PC 995 is . . . denied . . . ." In so doing, we assume the trial court effectively denied Haghighi's July 19 joint motions to dismiss count 3 (i.e., both his Penal Code section 995 motion to set aside the amended information and his motion to dismiss based on vindictive prosecution).

B

Under the doctrine of prosecutorial vindictiveness, in certain circumstances "[w]here the defendant shows that the prosecution has increased the charges in apparent response to the defendant's exercise of a procedural right, the defendant has made an initial showing of an appearance of vindictiveness. [Citation.] The defendant need not demonstrate that the prosecution in fact acted with a retaliatory motive. [Citation.] Once this prima facie case is made, the prosecution bears a 'heavy burden' of dispelling the appearance of vindictiveness as well as actual vindictiveness. [Citations.]" (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.)

However, no presumption of prosecutorial vindictiveness arises before trial. (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544; People v. Johnson (1991) 233 Cal.App.3d 425, 447.) "California decisions have refrained from presuming vindictiveness in a prosecutor's pretrial charging determinations." (Johnson, at p. 447.) People v. Farrow (1982) 133 Cal.App.3d 147 explained the reason for this limitation:

"The first information could have been amended at any time, including up to the time of trial, to include additional offenses shown by the evidence at the preliminary hearing. [Citations.] Unless the [presumption of prosecutorial vindictiveness] is limited to the postconviction appeal context, it becomes totally unworkable. Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system. [Citations.] Up to the time of verdict, the prosecution may amend the information to include additional offenses shown by the evidence at the preliminary hearing. To extend [the presumption of prosecutorial vindictiveness] to the pretrial and trial context would unduly hamper the legitimate exercise of this prosecutorial discretion. From the very commencement of proceedings, a criminal defendant has innumerable 'rights' which are exercised prior to and during the trial. Whenever the prosecution attempted to amend the information, the defendant could assert that the amendment was really in retaliation for some right that the defendant had theretofore exercised, or attempted to exercise. If the assertion of such a claim required the prosecution to come forward with explanations of the motivations for exercise of its discretion to amend the charges, the defendant could delay the proceedings and deflect them from the true issue, the defendant's guilt or innocence." (People v. Farrow, supra, 133 Cal.App.3d at p. 152.)

Likewise, the United States Supreme Court noted: "There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance." (U.S. v. Goodwin (1982) 457 U.S. 368, 381.) In contrast, Goodwin noted: "[A] change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision." (Ibid., italics added.) Accordingly, Twiggs stated: "Both Goodwin and Farrow suggest that to extend the presumption of vindictiveness to the pretrial setting would unduly hamper prosecutorial discretion." (Twiggs v. Superior Court, supra, 34 Cal.3d at p. 373.)

"The prosecution . . . has a burden to explain the reasons for its exercise of prosecutorial discretion only when there is a reasonable likelihood of vindictiveness, i.e., when the presumption applies. [Citations.]" (People v. Bracey, supra, 21 Cal.App.4th at pp. 1545-1546.) Because the presumption of vindictiveness does not apply to a prosecutor's charging decisions made before trial, the prosecutor does not have any burden to explain those pretrial charging decisions. Rather, it is the defendant's burden to show the prosecutor's pretrial charging decisions were vindictive. "Absent a presumption, [a defendant's motion alleging] a denial of due process on grounds of prosecutorial vindictiveness requires objective evidence 'that the prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.' [Citation.] 'The charge of vindictive prosecution is not a substitute for evidence.' [Citation.]" (Id. at p. 1549, italics added.)

C

In this case, Haghighi's motion to dismiss based on vindictive prosecution merely alleged that the People filed the amended information adding count 3 because he successfully obtained dismissal of count 1 after his preliminary hearing and because he requested a jury trial. Because both actions occurred before Haghighi's trial, no presumption of prosecutorial vindictiveness applies. (People v. Bracey, supra, 21 Cal.App.4th at p. 1544; People v. Johnson, supra, 233 Cal.App.3d at p. 447.) Therefore, Haghighi had the burden below to show that the prosecutor's decision to add count 3 was, in fact, motivated by a desire to punish Haghighi for those two actions. (Johnson, at p. 1549.) However, the record is devoid of any objective evidence showing the prosecutor's charging decision to add count 3 was, in any way, based on those two pretrial actions. We cannot reasonably infer from the mere fact that the prosecutor amended the information by adding count 3 that the decision was based on Haghighi's prior conduct in obtaining the dismissal of count 1 after his preliminary hearing or his exercise of his right to a jury trial. Absent any objective evidence showing that charging decision by the prosecutor was based on those two pretrial actions, we conclude the trial court properly denied Haghighi's motion to dismiss count 3 of the amended information based on prosecutorial vindictiveness.

IV

Admission of Letter

Haghighi contends the trial court erred by admitting into evidence a belatedly disclosed letter found in the October 7, 2004 package.

Without discussing the details of the letter and its admission into evidence, our review of the record shows Haghighi did not object to admission of the letter on grounds of violation of the prosecutor's discovery obligations or otherwise. Accordingly, he cannot raise on appeal the contention that the letter was erroneously admitted. (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7.) Benson stated: "It is, of course, 'the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' [Citation.]" (Benson, at p. 786, fn. 7, quoting People v. Rogers (1978) 21 Cal.3d 542, 548.) Because Haghighi did not make a specific and timely objection to the admission of the belatedly disclosed letter, he cannot now contend on appeal that it was erroneously admitted into evidence.^[9]

V

1963 Residential Burglary Conviction

Haghighi contends the trial court erred by denying his in limine motion to exclude evidence of his 1963 residential burglary conviction. His entire argument in his opening brief is:

"The trial court correctly held that [Haghighi's] commercial burglary conviction was not admissible, but erroneously ruled that the residential burglary conviction [from] the same year [i.e., 1963] would be admissible [for impeachment purposes were he to testify in his defense]. (C.T. at page 4.) This ruling affected [Haghighi's] trial and decision not to testify, and requires reversal."

We conclude Haghighi has waived this contention on appeal by not making, in his opening brief, any substantive analysis showing the trial court erred or, if so, that he was prejudiced by that purported error.^[10] Haghighi did not make any coherent, substantive argument showing the trial court erred by denying his in limine motion to exclude evidence on his 1963 residential burglary conviction. "Where a point is merely asserted by counsel without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, overruled on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Accordingly, we deem Haghighi's argument to be waived by his failure to provide any coherent, substantive argument showing the trial court erred by denying his in limine motion. (Ibid.; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"]; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["The dearth of true legal analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as such."].)

In any event, assuming arguendo Haghighi has not waived his contention of error on appeal, we further conclude he has not carried his burden on appeal by his failure to present any substantive analysis in his opening brief showing he was prejudiced by the purported error (i.e., absent the purported error it is reasonably probable he would have received a more favorable judgment). (People v. Watson, supra, 46 Cal.2d at p. 836.) There is no presumption that error, if committed, is prejudicial. Accordingly, it is Haghighi's burden on appeal to show the purported error was prejudicial. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) However, Haghighi "makes little effort to show prejudice. The conclusory claims he does tender [in his opening brief] do not persuade [us]. Accordingly, we find the [purported] error harmless." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) "[O]ur duty to examine the entire cause [for prejudicial error] arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of the error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citations.]" (Id. at p. 106.) Haghighi's opening brief argues summarily: "This ruling affected [Haghighi's] trial and decision not to testify, and requires reversal." That argument does not set forth a sufficient substantive analysis on the issue of prejudice and therefore Haghighi has waived any contention that the purported error was prejudicial. (Ibid.)

VI

Cumulative Error

Haghighi contends the cumulative effect of trial court errors resulted in a denial of a fair trial. Because we have found no prejudicial errors, we conclude he was not denied a fair trial on this basis.

DISPOSITION

The judgment is affirmed.

McDONALD, Acting P. J.

WE CONCUR:

AARON, J.

IRION, J.

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^[1] All further references are to the Health and Safety Code unless otherwise specified.

^[2] At trial, a DEA agent testified that the street value of the opium was $15,000 to $20,000.

^[3] The substance, together with its packaging, weighed approximately 34 grams.

^[4] Miranda v. Arizona (l966) 384 U.S. 436.

^[5] Haghighi also moved for dismissal of count 1 based on insufficiency of the evidence.

^[6] For purposes of this opinion, we assume Haghighi may challenge on appeal the sufficiency of the evidence to prove the specific intent element even though he did not make that argument in moving for dismissal in the trial court.

^[7] Haghighi does not show that the trial court erred by admitting Allen's expert testimony or, alternatively, that Allen's expert testimony violated any of his constitutional or other rights.

^[8] It alternatively could reasonably be inferred that Haghighi was a "facilitator," as Allen described, who received an opium package and delivered it to an actual distributor in Los Angeles, receiving $2,000 to $3,000 in compensation for his services.

^[9] In any event, Haghighi also makes only a conclusory assertion that the purported error was prejudicial and requires reversal of his conviction(s). However, because he has not offered any substantive analysis showing that it is reasonably probable he would have received a more favorable result at trial had the letter been excluded, we further conclude he has not carried his burden on appeal to show that the purported error was prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.)

^[10] To the extent Haghighi attempts to cure those deficiencies in his opening brief by providing substantive discussions of purported error and prejudice in his reply brief, we disregard those discussions as untimely presented, depriving the People of an opportunity to answer them. (Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal.App.4th 263, 270; Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 138, fn. 3; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [points raised in the reply brief for the first time will not be considered unless good reason for that delay is shown]; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [withholding of a point until the reply brief deprives the respondent of an opportunity to answer it]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.)