P. v. Silva

Filed 7/6/07 P. v. Silva CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A114165

v. (ContraCostaCounty

Super. Ct. No. 050510800)

JUSTIN SILVA,

Defendant and Appellant.

______________________________________/

Justin Silva appeals from a judgment entered after a jury convicted him of possessing methamphetamine for purposes of sale. (Health & Saf. Code,  11378.) He contends (1) the prosecutor committed prejudicial misconduct, (2) he received ineffective assistance of counsel, and (3) the trial court calculated his custody credits incorrectly. We reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant lived with his girlfriend Laura Woodmansee in a tri-level house located on South Crest Avenue in Martinez. On February 25, 2005, Deputy Sheriff Michael Commiskey and other law enforcement personnel went to appellants house to conduct a search of the residence. Commiskey was assigned to cover the back of the house while other officers went to the front. After a few minutes, Commiskey saw appellant run out the back door. Commiskey ordered appellant to stop, but appellant ran back inside. Commiskey followed appellant and found him hiding in the closet of a downstairs computer room. As Commiskey was placing appellant into handcuffs, he noticed a glass pipe and three small bags of what appeared to be methamphetamine. Commiskey also noticed a large hole, approximately five feet high, had been cut in the wall of the closet.

Deputy Commiskey walked appellant upstairs where other officers were detaining Woodmansee. He left appellant with the other officers and returned to the computer room to conduct a search. He seized the pipe, the three bags of suspected methamphetamine, and several empty plastic bags. The deputy also searched the hole in the closet wall and found a black pouch. Inside the pouch were two pills and a large bag of what appeared to be methamphetamine.

Deputy Commiskey returned to where the other officers were detaining appellant. After appellant waived his Miranda rights, Commiskey asked appellant if the stuff he had found was his. When appellant said no, Commiskey looked at Woodmansee and asked, Is this your house? She said yes. Commiskey then asked appellant again if the stuff was his. This time, appellant said yes, and he confirmed that the stuff was methamphetamine. The deputy showed appellant the four bags of drugs and said, Just to be clear, is this yours? Appellant said yes.

Based on these facts, an indictment was filed charging appellant with possessing methamphetamine for purposes of sale. The indictment also alleged appellant had one prior strike within the meaning of the three strikes law (Pen. Code,  1170.12^[1]), one prior conviction within the meaning of Health and Safety Code section 11370.2, and that appellant had served a prior prison term. ( 667.5, subd. (b).)

The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution also presented evidence from a forensic toxicologist who confirmed that the bags that had been found contained methamphetamine. The three small bags weighed .57, .89, and 1.2 grams respectively, while the large bag weighed 48.66 grams. Another expert opined that appellant possessed the drugs for purposes of sale. The prosecution also presented testimony from Woodmansee who confirmed that appellant admitted the drugs were his. However, Woodmansee remembered the incident somewhat differently. She said that after appellant initially denied owning the drugs, one of the officers said, If theyre not yours, then shes going to jail. According to Woodmansee, only then did appellant admit the drugs were his.

Appellant defended the charges by claiming the methamphetamine belonged to a friend named William Cox. Cox testified at trial. He said he was at appellants house the night before the search listening to music and playing on the computer. Cox had methamphetamine with him and he smoked some while appellant was out of the room. Cox said he put the methamphetamine and the pipe in a black pouch and stashed the pouch in a hole in the wall of the closet because he was too high and paranoid to take the drugs with him when he left. Cox said he encountered appellant while they both were in jail about a year later. After speaking with appellant about his arrest, on February 7, 2006, Cox prepared an affidavit in which he admitted the methamphetamine was his. In the affidavit Cox stated, incorrectly, that the three small bags that had been found contained cutter.

The jurors considering this evidence convicted appellant of possessing methamphetamine for purposes of sale. In a court trial that followed, the court found the prior strike, prior conviction, and prior prison term allegations to be true.

Subsequently, the court exercised its discretion to strike the strike, and then sentenced appellant to seven years in prison.

II. DISCUSSION

A. Prosecutorial Misconduct

1. Background

Appellant contends the prosecutor committed misconduct when presenting his evidence and when arguing the case to the jury. He bases his argument on the following five incidents at trial:

First, he focuses on the following colloquy in the prosecutors redirect examination of Woodmansee.

Q. Now, Ms. Woodmansee, you filled out a or wrote a some kind of letter in this case that you had notarized around February 16th of 2006; is that correct?

A. Yes.

Q. Which is approximately a year after this incident; is that right?

A. Yes.

Q. And you had never written anything down prior to that?

A. No.

Q. And you wrote it down at the request of the defendant or his mother or

A. He was acting as his own attorney at the time.

Q. Okay. And he called you?

A. His his legal runner.

Q. And is his mother in the courtroom today?

A. Yes.

Q. Okay. And when you came in the courtroom you actually sat down next to her; right?

A. Yes.

At that point, defense counsel objected and moved to strike on relevance grounds. The trial court overruled the objection.

Second, he focuses on the affidavit Cox prepared while he was incarcerated that was notarized by Tracy Romero. During cross-examination, the prosecutor asked Cox whether he knew Romero. Cox admitted that he knew her and that appellant knew her too.

Third, he focuses on the prosecutors calling Romero as a witness during his rebuttal case. Romero admitted she was the best friend of appellants sister, and that she had known appellant for many years.

Fourth, about halfway through the trial, the court and counsel discussed jury instructions. The prosecutor asked the court to instruct on fabrication of evidence using CALCRIM No. 371.^[2]

The court and prosecutor discussed the request as follows:

[The Court]: Consciousness of guilt. I wasnt sure what your theories were, [prosecutor]. Is this getting Mr. Cox to come up with a story? Is that your theory, that hes getting Mr. Cox to fabricate evidence or come up with testimony?

[Prosecutor]: Well, ultimately, I mean, thats going to be my theory. Whether its going to be substantiated by the evidence, well have to wait and see, you know.

[The Court]: Okay. So, the way I did it, I thought that that applied under 371, so well hold off on that, but thats what I thought your theory was.

Ultimately, the court declined to give an instruction on fabricating evidence. However, the court said the prosecutor could argue that theory because that certainly [could] be implied . . . .

Fifth, appellants argument involves defense counsels direct examination of Cox when defense counsel placed the black pouch and its contents in front of Cox while she questioned him. Defense counsel also placed a photograph of the hole in appellants closet in front of Cox while she questioned him.

During cross-examination, the prosecutor asked Cox whether he thought it might be difficult to question him about the pouch or the hole because defense counsel had already placed the pouch and a picture of the hole before him. Cox agreed.

The prosecutor mentioned this and other evidence during his final argument. First, counsel noted that Cox had misstated in his affidavit what was in the three small bags that had been found, saying they contained cutter instead of methamphetamine: And why do you think he said that? Because he gets the defendants best friend . . . the certified notary public, to come in whos contacted by the defendants mother to go down to the jail to take Mr. Coxs affidavit. Do you think theres a connection here? Defendants representing himself at the time, meets up with his buddy over at the jail.

The prosecutor returned to the same point a few moments later: . . . I submit to you, based on the evidence of the statement when Mr. Cox ends up in jail a year later in the same module as the defendant, ends up writing this affidavit, which is notarized by defendants sisters best friend over in the jail, that hes part of fabricating this evidence. Another factor of consciousness of guilt and circumstantial evidence that you can consider in your evaluation, that he knows hes guilty of the crime and is attempting to get away from it.

The prosecutor also argued Coxs testimony would have been more credible if defense counsel had asked Cox to describe the various items of evidence rather than show them to him and ask him questions: Thats how you judge the credibility of a witness. Are they able to, you know, recollect things and testify? If you stick something in front of them like that, is that the kind of thing in judging the credibility of a witness that you want? You want them to, you know, be able to do it from memory . . . and give you some details so you could judge what theyre saying; not have it spoon fed to them on the witness stand. [] You saw how many times I objected to leading questions that the Judge sustained the objection of defense counsel leading him. Its spoon feeding the information cause he wasnt telling the truth. It was a contrived story. And it was easier to present it to you . . . through a spoon than it was to have him testify to open-ended questions. It was easier to put the evidence in front of him . . . than to have him talk about it without that happening.

The prosecutor then summed up his argument as follows: [Y]ou cant look at this in a vacuum. The big picture is two people are living in this house. Its his dope. The circumstantial evidence is overwhelming . . . that its his. He runs. He puts on fabricated evidence. He admits its his.

(2) Controlling Law

A prosecutors 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. Furthermore, and particularly pertinent here, when 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.)

(3) Application

Appellant contends the prosecutor committed misconduct when he cross-examined Woodmansee, when he questioned Cox about Romero, when he called Romero as a rebuttal witness, and by adopting the theory that appellant had fabricated evidence. None of those incidents are misconduct under the controlling standard. The prosecutors questioning of Woodmansee simply highlighted the fact that she might be biased in favor of appellant. Appellant concedes evidence of bias was relevant. The same is true for the questions concerning, and testimony from, Romero. They simply pointed out that she knew appellant and thus that she might be biased in his favor. Again, appellant concedes that evidence of bias was proper. The prosecutor did not commit misconduct simply by adopting the theory that appellant may have fabricated evidence. The prosecutor could validly adopt and argue that theory if there was evidence to support it. (People v. Earp (1999) 20 Cal.4th 826, 863.) The pivotal question is not whether the prosecutor validly could adopt a theory, but whether there was sufficient evidence to support it. This leads us to appellants fifth argument. He contends the prosecutor committed misconduct when arguing the case to the jury because no evidence of fabrication had been presented. We disagree.

Here, there was ample evidence to support the inference that appellant had fabricated evidence. Appellants primary defense was provided by his good friend William Cox. Cox said the methamphetamine that had been found was his and that he left it in appellants house the night before the search. However, several aspects of Coxs story were suspicious. Cox did not come forward to admit his involvement until about a year after the crime and he did so only after he met with appellant while they both were in jail. Furthermore, Cox fundamentally misunderstood what drugs had been found. Cox stated, in his affidavit, that the three smaller bags contained cutter when in fact they contained methamphetamine. It would be reasonable to assume that Cox would know what he possessed and allegedly left in appellants house. The fact that he did not supports an inference of fabrication. We conclude there was sufficient evidence for the prosecutor to argue that appellant had induced his good friend Cox to lie for him in an attempt to evade responsibility for the crime.

As for the prosecutors cross examination of Woodmansee and the testimony regarding Romero, the evidence showed Woodmansee was appellants girlfriend, and that appellant had known Romero for many years. The prosecutor reasonably could argue that appellant used those close to him as tools to help him present the defense he had fabricated. A defendant may not complain on appeal that the prosecutors reasoning was faulty or his conclusions were illogical because those are matters for the jury to determine. (People v. Thomas (1992) 2 Cal.4th 489, 526.)

Appellants final argument on this point is that the prosecutor committed misconduct by suggesting during argument that defense counsel participated in appellants efforts to fabricate a defense.

While, as we have noted, a prosecutor properly may suggest, based on inferences drawn from the evidence, that a defense is fabricated (People v. Earp, supra, 20 Cal.4th at p. 863), [t]he unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct. [Citations.] (People v. Bain (1971) 5 Cal.3d 839, 847.) It is not necessary to find that such implication impinges upon defendants constitutional right to counsel. [Citation.] Instead it is sufficient to note that defendants conviction should rest on the evidence, not on derelictions of his counsel. [Citations.] (People v. Sandoval (1992) 4 Cal.4th 155, 183.) When determining whether misconduct has occurred, we must keep in mind the fact that a prosecutor has wide latitude to describe the deficiencies in opposing counsels tactics. (People v. Bemore (2000) 22 Cal.4th 809, 846.) An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)

Here, it is not reasonably likely the jurors interpreted the prosecutors remarks as suggesting defense counsel participated in appellants efforts to fabricate a defense. The prosecutor did not accuse defense counsel of misconduct. Instead he focused on the technique defense counsel used when examining Cox. Counsel argued the jurors should reject Coxs testimony because he was only able to describe the pouch that had been found and the closet in which appellant was hiding after the pouch itself and a picture of the closet had been placed in front of him. We will not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. (People v. Howard (1992) 1 Cal.4th 1132, 1192.)

The conclusion we reach is supported by case law. In People v. Frye (1998) 18 Cal.4th 894, 977-978, the defendant argued the prosecutor committed misconduct when she criticized defense counsel for attempting to blame someone else for the crime. Our Supreme Court disagreed, although the prosecutor called defense counsel irresponsible for raising suspicions about Ron Wilson, the point of her criticism was counsels lack of evidentiary support for such a claim. Because the focus of her comment was on the evidence adduced at trial, rather than on the integrity of defense counsel, it was proper. (Id. at p. 978.)

We reach a similar conclusion here. Although the prosecutor accused defense counsel of spoon feeding Cox, the point of his argument was that Cox should not be believed because he was only able to describe the critical evidence after it had been placed before him. As in Frye, [b]ecause the focus of [the prosecutors] comment was on the evidence adduced at trial, rather than on the integrity of defense counsel, it was proper. (Frye, supra, 18 Cal.4that p. 978.)^[3]

B. Whether Trial Counsel Provided Adequate Assistance

Appellant contends that if his claims of prosecutorial misconduct were waived because trial counsel failed to object in the court below, then he received ineffective assistance of counsel. Because we have rejected appellants claims of prosecutorial misconduct on their merits, we need not reach the ineffective assistance claim.

C. Custody Credits

The probation report prepared prior to sentencing stated that appellant was entitled to 286 days of actual custody credit. Defense counsel disputed that figure and stated that appellant was entitled to 328 days of actual custody credit. The trial court accepted defense counsels calculation and awarded appellant 328 days of actual credit, plus 164 days of good conduct credit, for a total of 492 days of credit.

Appellant now contends the trial court erred. Noting that he was arrested on February 25, 2005, and that he was sentenced on June 1, 2006, appellant contends he was entitled to 462 days of actual credit plus 230 days of good time credit.

We decline to address this issue on procedural grounds. Section 1237.1 states, No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.

Here, as the People note, nothing in the record indicates appellant filed a motion in the trial court seeking additional custody credits. Thus, appellant has failed to comply with section 1237.1.

Appellant implicitly concedes this fact. However, he contends he validly can raise

the custody credit issue under People v. Acosta (1996) 48 Cal.App.4th 411, 427-428, where the court ruled that an appellant may challenge custody credits for the first time on appeal where he has presented other legally cognizable issues. While appellant has characterized Acosta correctly, we note that in People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101, our Supreme Court interpreted Acosta narrowly to mean that an appellate court can, but is not required to address a presentence credit argument when it is presented for the first time on appeal along with other issues.

In this case, we exercise our discretion and decline to address the argument appellant has advanced. Appellants argument is premised on the assumption that he was in custody from when he was arrested on February 25, 2005 until he was sentenced on June 1, 2006. Appellant has not cited any portion of the record that proves this is true and we have no way of knowing whether it is correct. Under these circumstances, we believe the best course of action is for appellant to follow the procedures mandated by section 1237.1.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Needham, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] Unless otherwise indicated, all further section references will be to the Penal Code.

^[2] CALCRIM No. 371 states, in part, If the defendant tried to create false evidence or obtain false testimony, that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.

^[3] Because we have addressed appellants claim of prosecutorial misconduct on its merits, we need not decide whether trial counsel waived the issue by failing to object in the court below.