P. v. Bradford
Filed 12/10/07 P. v. Bradford CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BRADFORD, Defendant and Appellant. | B197656 (Los Angeles County Super. Ct. No. BA311212) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I. Sandoval, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Sonya Won, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Richard Bradford was convicted by jury of sale of a controlled substance, in violation of Health and Safety Code section 11352, subdivision (a). He was sentenced to state prison for the midterm of four years for the controlled substance sale. His sentence was enhanced by three years based upon defendants admission of a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a).
In this timely appeal, defendant argues the prosecutor committed misconduct during argument to the jury by comparing defendants conduct to that of a Columbian drug cartel. Defendant also requests this court to conduct an independent review of the sealed transcript of the in camera hearing pertaining to his motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We hold the prosecutors argument was neither improper nor prejudicial, and there was no error committed in the in camera hearing on the Pitchess motion. We therefore affirm the judgment.
FACTS
Officer Pedro Rodriquez was working as an undercover officer on October 19, 2006, as part of a team investigating narcotics sales. Officer Rodriguez came upon Troy Washington near the corner of Fifth and Crocker Streets. The officer asked Washington if he had cavee, a street term for rock cocaine.[1]
Washington walked down the block with Officer Rodriguez. He asked the officer how much he wanted. The officer said a dime, meaning $10 worth of cocaine. He gave a marked $10 bill to Washington. Washington caught up to defendant, who had earlier walked past Washington and Officer Rodriguez. Washington gave defendant the $10 bill. Defendant reached toward his waist and retrieved a small object, which was later determined to be .12 grams of rock cocaine. He handed the rock cocaine to Washington, who then delivered it to Officer Rodriguez.
After the delivery, defendant was observed by officers as he tried to secrete something in a hole in a brick wall next to a business. Defendant was arrested shortly thereafter in possession of the marked $10 bill used by Officer Rodriguez to buy the rock cocaine. A plastic baggie containing numerous rocks of cocaine weighing 5.82 grams was recovered from the hole in the brick wall.
Defendant testified on his own behalf that he had twice rebuffed Washingtons attempt to buy drugs from him. He did not remove anything from his waist area, nor did he deliver drugs to Washington. He did not place a plastic bag into a hole of a brick wall. Evidence was presented that there was an operational video camera located at the corner of Fifth and Crocker Streets, but no attempt was made by the police to review the tape.
DISCUSSION
I
THE PROSECUTOR DID NOT COMMIT
MISCONDUCT DURING ARGUMENT TO THE JURY
Defendant argues the prosecutor committed misconduct by comparing defendants conduct to that of a Columbian drug cartel. Defendant claims the argument was not reasonably objective and inflamed the passions of the jury. We disagree.
The disputed portion of the prosecutors argument was as follows: Now, did the defendant intend to aid and abet the perpetrator committing the crime. Obviously, I just described the scenario that you heard the undercover officer as well as Officer Jackson[[2]] describe for you. So, he intended to aid and abet the sale because hes the supplier. So lets get the supplier before we go on. How is this case any different, actually, than any of the cases you have seen on TV where you have a big drug cartel individual who is the supplier of the drugs and he has a go between, between him and its also a police officer who is trying to buy kilos of cocaine or kilos of heroin. That is always the situation. But if you think about it, this is exactly the same situation as that. The only difference between the big Columbian drug cartel people and the defendant is the defendant deals in smaller amounts.
Defense counsel objected on the grounds of improper argument. The trial court admonished the jury that the prosecutor was using an example. It is not your job or obligation to assume the same facts of her example. She is just using it as a way to argue. No prejudice should be drawn from the nature of her analogy, just an example.
The prosecutor continued, As I stated, the only difference between the defendant and the Columbian drug cartels is the amount he is selling. He doesnt have kilos and ships full of marijuana. He has a little baggie that has rocks of cocaine in it. He is still the supplier, and you cant sell drugs without a supplier.
A prosecutor is entitled to argue by analogy. In People v. Cole (2004) 33 Cal.4th 1158 (Cole), the prosecutor in a torture-murder case compared the defendants conduct to that occurring during the Spanish Inquisition. The prosecutor in Cole referred to how those who were suspected of heresy were tortured for months, and were given an opportunity to confess before being executed. The prosecutor argued, Hundreds, thousands of them at the last minute, either the night before, or actually some of them the next day after they were marched out, right when they were about to be taken to the stake, there was one more time, even though they were told the night before, this is the last time, confess now and well strangle you and you wont have to face the flames, and they did, because they had seen it.
There was nothingthere is nothing you can plan, there is nothing in the human psyche that is as terrifying as dying by burning, and these are people who were going to die while tied up to the stake, and the whole thing is going to take ten minutes.
Doesnt compare to what [the victim] went through. Doesnt even come close. They were allowed to be strangled first. . . . (Cole, supra, 33 Cal.4th at p. 1200.)
Our Supreme Court found no error in the argument in Cole. A prosecutors misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643.) In other words, the misconduct must be of sufficient significance to result in the denial of the defendants right to a fair trial. (United States v. Agurs (1976) 427 U.S. 97, 108.) A prosecutors misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Strickland (1974) 11 Cal.3d 946, 955; accord, People v. Farnam (2002) 28 Cal.4th 107, 167.)
When the issue focuses on 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. (People v. Berryman (1993) 6 Cal.4th 1048, 1072, overruled on another point in People v. Hill [(1998)] 17 Cal.4th 800, 822-823; accord, People v. Clair (1992) 2 Cal.4th 629, 663.) Moreover, prosecutors have wide latitude to discuss and draw inferences from the evidence at trial, and whether the inferences the prosecutor draws are reasonable is for the jury to decide. (People v. Dennis [(1998)] 17 Cal.4th 468, 522.)
We conclude the prosecutor did not overstep the boundary of permissible argument in mentioning the Spanish Inquisition and the persecution of early Christians. With those examples, the prosecutor made the point that fire has historically been used as an instrument of torture and is generally known to cause extreme pain. The point was appropriate in the context of the argument that defendant must have known that using fire to kill [the victim] was calculated to cause her extreme pain. While the historical events the prosecutor mentioned had religious significance, the prosecutor made no improper appeal to religious authority. (E.g., People v. Hill, supra, 17 Cal.4th [at pp.] 836-837 & fn. 6.) Defendant does not contend otherwise. Defendant does argue that references to [the victims] suffering were irrelevant and improper, and, thus, that references to historic examples of torture by fire were also improper. We disagree. As discussed above, evidence of [the victims] suffering was properly admitted to prove that defendant committed an act calculated to inflict extreme pain. [Citation.] Accordingly, for the prosecutor to use illustrative analogies to argue the point was not improper. (Cole, supra, 33 Cal.4th at pp. 1202-1203.)
As in Cole, the prosecutors argument in this case did not constitute misconduct. The prosecutors argument was intended to explain how the concept of aiding and abetting applied to the case of a small time drug transaction. In explaining the concept, the prosecutor referred to a method of drug sales frequently portrayed in the mediathat of a drug cartel. The argument merely illustrated how defendant could be found responsible on an aiding and abetting theory. An argument explaining aiding and abetting was proper, since defendant did not directly sell the rock cocaine to Officer Rodriguez, but instead used Washington to make the actual delivery.
Even if the argument were improper, it was nonprejudicial. The evidence against defendant was very strong. Multiple officers saw defendant supply the cocaine sold by Washington. Defendant was also observed secreting over five grams of cocaine in the hole in the brick wall. There is no reason to believe the example used by the prosecutor in argument was the decisive factor in the case. The trial court explained to the jury that the argument was merely an example, and no prejudicial inference should be drawn from it. It is not reasonably probable that a result more favorable to defendant would occur absent the error. (Cal. Const., art. VI, 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
II
THERE WAS NO ERROR AT THE IN
CAMERA HEARING ON THE PITCHESS MOTION
Defendant requests that we conduct an independent review of the sealed transcript of the in camera hearing held by the trial court in connection with defendants Pitchess motion. Pursuant to People v. Mooc (2001) 26 Cal.4th 1216, we have conducted an independent review of the record of the in camera hearing. There was no error.
DISPOSITION
The judgment is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
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[1] Cavee is a shorthand term for caviar.
[2] Officer Jackson was a member of the team investigating narcotics sales, and testified to aspects of the offense and investigation.
