Filed 12/7/18 P. v. Munoz-Guerrero CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Megan L. Wagner, Judge. Affirmed.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Angel Munoz-Guerrero was arrested and convicted for possession and transportation of methamphetamine for sale. He was given probation. On appeal he raises one major issue concerning prosecutorial misconduct and one minor issue regarding Penal Code section 1464 assessments on the two $50 laboratory analysis fees he was ordered to pay.[1]

While we recognize the issue of possession for sale was a close one for the jury, the issue of the prosecutor’s “misconduct” amounted to nothing more than a de minimis misstatement about the respective origins of the defense expert’s referrals – whether 75 percent of them came from the Orange County Public Defender’s office as distinct from public defender’s offices in general. That comment did not constitute misconduct and did not mar the fairness of the trial.

The minor issue on the penalty assessment on the lab fee was settled by the Supreme Court after briefing closed. The issue did not go Munoz-Guerrero’s way. Lab analysis fees are within the scope of section 1464. Accordingly we affirm the judgment.

II. BACKGROUND

Munoz-Guerrero was arrested in May 2015 for playing loud music at an intersection. He consented to a search of his car which turned up methamphetamine and a digital scale. He was subsequently tried for both possession and transportation of methamphetamine for sale, and convicted of both.

The evidence at trial in favor of possession for sale, as distinct from for personal use, could have gone either way. The quantity was large enough that a reasonable jury could conclude it was being held for sale, but not so large as to compel such a conclusion. Munoz-Guerrero was arrested with 5.24 grams of methamphetamine, in the form of two large crystalline rocks, beside him in his car. Such a quantity might, or might not, be enough to constitute a dealer’s inventory for sale: On the one hand the prosecution pointed out that a mere .1 gram might be sold as a “dime bag.” Thus 5.24 grams would be enough for 52 such bags. On the other hand, as defense counsel noted, some addicts require as much as half a gram of methamphetamine per “hit,” and some addicts can consume between 3.5 and 7 grams a day. That means the 5.24 grams might have been barely enough for a few days personal use.

Then there was fact that Munoz-Guerrero was clearly a user of methamphetamine. That was apparently suggested by his physical appearance: Both experts were allowed to testify that he looked like a user. They said he exhibited the teeth and sunken cheeks and jaw of a long-time user.

When he was arrested, he was found with a methamphetamine pipe with burn marks, indicating he had used it to smoke methamphetamine. And he was not found with items that dealers typically have, such as baggies, cell phones, accounting records (called “payo” or “pay-owe” sheets) or even some sort of tool by which the methamphetamine, in rock form, might have been divided. He would have had to divide the rocks up by hand if he was going to sell some part of those two rocks while dealing from his car.

Nor were any adulterants found to dilute the drug, as dealers often have. And Munoz-Guerrero was initially arrested for driving around a low crime area playing very loud music – and drug dealers normally do not want to call attention to themselves.

Then again, Munoz-Guerrero was found with a scale of the sort dealers use. He was also found, in addition to the two crystalline rocks, with a baggie containing some unusable residue of methamphetamine in it, and $118 in cash – both items at least consistent with low-level dealing by an addict who needs the money to support his habit. And even though methamphetamine retailers might indeed not want to draw attention to themselves by playing loud music, mere users have no reason to just drive around with a significant quality of the drug in their car instead of heading straight home.

And so the trial of the case became, in large measure, a battle of dueling experts. On the prosecution side was the arresting officer, Trevor Nelson, who had four and a half years on the force, a certificate in narcotics training, and experience with over 100 field investigations – in some of which he had come to the conclusion the drug involved was possessed only for personal use. On the defense side was Joseph Klein, who had spent 29 years with the Fullerton Police Department as a narcotics detective and narcotics commander, including participating in many undercover drug sales and is the author of several books used in police training.

Officer Nelson based his opinion on the quantity of methamphetamine found in Munoz-Guererro’s car, and the presence of two baggies and the scales. By contrast, retired detective Klein opined that, all things considered, including the conspicuous absence of items normally associated with methamphetamine dealing, had he been the arresting officer he would only have arrested Munoz-Guerrero for possession, not possession for sale.

Not surprisingly then, in closing argument Munoz-Guerrero’s counsel emphasized the disparity in experience between Officer Nelson, a comparative newbie in the narcotics field, and retired detective Klein, who has “twenty-five years of teaching and training experience.” Defense counsel also emphasized Klein’s independent judgment, pointing out that he often doesn’t testify when he’s consulted. The implication was Klein only testifies when he really believes that a defendant is not guilty – or at least not guilty of possession for sale.

In his reply to the defense closing argument, the prosecutor all but called Klein a prostitute. Klein, said the prosecutor, “goes from courtroom to courtroom throughout this county” with “those magical words for a case like this,” namely “‘the defendant possessed it with the intent only for personal use.’” To make up for Klein’s greater experience in the field, the prosecutor emphasized Klein’s personal stake in the case: “He makes a living testifying. He makes a living being an expert witness, quote/unquote, expert witness, a paid witness.” The prosecutor then segued to contrasting Officer Nelson’s compensation with retired detective Klein’s – we quote all four important paragraphs of the relevant swath of the prosecutor’s argument in the margin to provide context.[2]

III. DISCUSSION

Two aspects of the closing argument just quoted are the main focus of this appeal – the reference to Officer Nelson’s not being “get[ing] paid any more based on his testimony” and the allusion to retired detective Klein’s receiving “75 percent of his cases” from the public defender’s “law firm” plus the idea that the public defender’s office was not going to continue to use him if he actually started “telling the truth of what’s going on.” On appeal, Munoz-Guerrero contends both statements constitute prejudicial prosecutorial misconduct because they involve facts not in evidence.

We take it as given that it is misconduct for a prosecutor to argue facts not in evidence, a point perhaps most eloquently expressed by our high court in People v. Bolton (1979) 23 Cal.3d 208 (Bolton): “In the present case, the prosecutor implied that there was additional evidence about the appellant’s past known to him but unavailable to the jury. These implications tended to make the prosecutor his own witness – offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’” (Id. at p. 213, quoting Vess, Walking a Tightrope: A Survey of Limitations On The Prosecutor’s Closing Argument (1973) 64 J.Crim.L. & Criminology 22, 28.)

That said, we do not think the prosecutor crossed the line here, for three reasons: One, with regard to Officer Nelson’s compensation, there was no misstatement at all. Retired detective Klein had testified that when he was on the Fullerton police force, he was paid a salary and got time and a half for testifying. It is a reasonable inference from that evidence that Officer Nelson likewise was not donating his time to come to court, but was also being paid his regular salary (“set payroll” might or might not include being paid extra or not for coming to court). As such, Officer Nelson would not suffer a decrease in that salary if, perchance, the jury rejected the theory of possession for sale. We would expect that most sentient jurors would know that anyway. It would be an extremely unsophisticated juror indeed who might believe an arresting officer is not going to be paid for testifying in court.

Two, with regard to retired detective Klein’s compensation, the prosecutor’s statement was only a slight misstatement of the evidence and on a point of minimal importance. Klein had testified that since 2014 “probably 50 to 75 percent” of his referrals “come from the public defender’s office.” When the question was repeated to emphasize the higher figure, “So about 75 percent?” Klein added that “Again, I’m talking not only Orange County Public Defender’s Office, but I am retained by other counties also.”

There was nothing in the prosecutor’s statement to suggest (a la Bolton) secret knowledge. Just the opposite in fact. The jury had already heard Klein’s qualification as to the make up of 75 percent of his referrals and could easily figure out the prosecutor had simply misheard that evidence, or – worse for the prosecution – was overstating it. But the point carried no weight. Whether Klein was typically hired by one public defender’s office or several made no difference: a juror who found the point persuasive would find it equally persuasive either way.

We recognize that the prosecutor gained a miniscule rhetorical advantage in his ancillary comment about the referrals coming from the Orange County Public Defender’s office qua “law firm.” The implication was that 75 percent of Klein’s work came from the Orange County Public Defender’s Office, making him marginally more vulnerable to loss of future business from that particular “firm,” as distinct from, say, the San Diego Public Defender’s Office.

But, we cannot conclude this marginal misstatement affected the jury’s verdict. Bad results in cases handled by one public defender’s office will doubtless have little effect on the hiring decisions of others, so the difference was largely nugatory. “A defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.) That is simply not the case here. Like Officer Nelson’s compensation, the point was obvious anyway.

We need merely note in passing that the prosecution’s argument about defense counsel’s failure to object, as well as Munoz-Guerro’s own appellate argument that his trial counsel committed ineffective assistance by failing to object, are equally unpersuasive.

Defense counsel had an obvious tactical reason not to object – why underscore to the jury what they probably could figure out anyway? To do so would only emphasize the best part of the comparison between the experts from the prosecution’s point of view – that Klein had been specifically retained (and thus paid) to testify while Nelson was just doing his regular job. Additionally, making a to-do about the distinction between the Orange County Public Defender’s Office and other public defender’s offices risked irritating the jury by hairsplitting. We cannot say this was an unreasonable decision on counsel’s part and we see no reason to address the waiver argument in light of our conclusion on the merits.

Munoz-Guerrero also presents one sentencing argument. He was sentenced to probation, and ordered to pay a $50 lab analysis fee “plus penalty assessment.” On appeal, he challenges the imposition of the “penalty assessment” on the lab analysis fee.

The penalty assessment is imposed under section 1464, which acts as a surcharge on criminal fines: “[T]here shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses . . . .”

Appellate courts have recently split over whether a lab analysis fee imposed under the Health and Safety Code is subject to section 1464’s surcharge; appellate counsel picked up on that divide and argued it in Munoz-Guerrero’s behalf. However, in May 2018, after briefing was concluded in this case, our Supreme Court provided the definitive answer: It is. (See People v. Ruiz (2018) 4 Cal.5th 1100.) The trial court thus did not err in imposing the penalty assessment.

IV. DISPOSITION

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.