P. v. Bunn
Filed 7/3/13 P. v. Bunn CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
MARY ALLISON BUNN et al.,
Defendants
and Appellants.
E054196
(Super.Ct.No.
SWF026553)
OPINION
APPEAL
from the Superior Court
of
County. Ronald L.
Johnson, Judge. (Retired judge of the
San Diego Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Donna
L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant
Mary Allison Bunn.
Babak
Semnar, under appointment by the Court of Appeal, for Defendant and Appellant
William Steven Bunn.
Kamala
D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A.
Natasha Cortina and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff
and Respondent.
A
jury convicted defendant and appellant William Steven Bunn of cultivating
marijuana (Count I—Health and Saf. Code, § 11358); the lesser included
misdemeanor offense of child endangerment
prohibited to do so (Count III—Pen. Code, § 12021, subd. (c)(1)). The same jury convicted defendant and
appellant Mary Allison Bunn of cultivating marijuana, (Count I—Health and Saf.
Code, § 11358) and the lesser included misdemeanor offense of child
endangerment (Count II—Pen. Code, § 273a, subd. (b)).
16-month aggregate term of imprisonment.
It granted Mary probation.
On
appeal, Mary contends: (1) the trial
court erred by declining to quash the search warrant and exclude all evidence
discovered pursuant thereto; (2) the trial court erred in refusing to instruct
on possession of marijuana as a lesser included offense of cultivation; and (3)
that substantial evidence does not
support her conviction for misdemeanor child endangerment. William maintains the People committed
several acts of prejudicial misconduct depriving him of his constitutional
Special
Agent Eric Ball of the Drug Enforcement Administration (DEA) received
information regarding the indoor cultivation of marijuana at a residence on
Lilac Road in San Diego County (hereinafter “Lilac Roadâ€); he started
conducting surveillance of the home. On July 31, 2008, he noticed “a heap of
debris including . . . ventilation ducting, empty grow light boxes, and the
type of debris that [he] would expect to see from a marijuana-cultivation
operation.â€
On August 1, 2008, Ball again conducted
surveillance of Lilac Road. He followed two vehicles that left the
home. One was registered to a Dean
Childers and the other to a Christopher Yap.
The vehicles led him to Loring Road
in Murrieta; however, Ball had to terminate his surveillance when the road
turned from asphalt to dirt, because he feared his surveillance would be
discovered in such a remote location.
Ball
returned to Lilac Road in
order to obtain a closer look at the home.
He walked up to the front door where he observed the “strong odor of
marijuana, sounds of lights and ballasts humming within the residence. [He] could see the bright grow lights through
a seam in the window where a plastic tarp had been hung in the window but
enough seam where the bright light was shining through.†Such circumstances were consistent in Ball’s
experience with marijuana cultivation.
On August 20, 2008, Ball again conducted
surveillance of Lilac Road. He again observed Childers’s vehicle, which
he followed as Childers left the home.
Childers led him toward the same area in Murrieta to which he had
previously been led, but to a specific residence on Catt
Road (hereinafter “Catt
Roadâ€).
Ball surveilled the home with binoculars. He observed Childers exit his vehicle and
enter a detached garage on the property.
On August 21, 2008, Ball again conducted
surveillance of Catt Road. He observed three vehicles on the
property. One was registered to
defendants, one to Childers, and the remaining to Yap. Ball saw William, Childers, and Yap
exit the detached garage. It appeared
the three men were working together; they went to Yap’s car where they
retrieved a box.
Ball
witnessed Mary exit the residence with a child; the child was walking around
the driveway as Mary followed him. He
never saw Mary enter the garage. Yap
departed from the residence first and Childers left thereafter. William picked up the child and went back
into the house.
Childers had
previously been arrested for cultivation of marijuana. Ball noted Childers had left a location
suspected of being an active site for marijuana cultivation (Lilac
Road) to another address (Catt
Road), where his focus was on the detached
garage.
In August
2008, Detective Richard Holder of the Riverside County Sheriff’s Department was
assigned to the Southwest Corridor Narcotics Task Force, which consisted of a
group of local law enforcement officers who enforced drug laws within southwest
Riverside County. Holder conducted a separate surveillance of Catt
Road on August
26, 2008. Ball conveyed his
observations to Holder; Holder drafted an affidavit and declaration in support
of a search warrant for Catt Road.
Warrants were obtained for both Lilac Road
and Catt Road; they were
executed at the same time so the occupants of one residence could not notify
those in the other. Ball participated in
the search of Lilac Road.
On August 27, 2008, Holder participated
in a search of Catt Road,
defendants’ home. Presearch and
postsearch videos of the location were recorded and played for the jury. In the detached garage, officers found a
“grow-room†in which 79 live marijuana plants approximately one and a half to
two feet in height, some of which were budding, were found; the door to the
grow-room was unlocked.
The
grow-room had an electrical bypass, allowing the use of electricity directly
from the grid, bypassing that supplied to the residence; Holder testified this
is a technique typically used to hide illegal marijuana cultivation because the
high amount of electricity required does not then show on the residents’
electrical bills. Holder observed a
child’s wooden horse toy, a rocking horse, and stroller in the garage adjacent
to the grow-room.
Inside the
home, officers found a small, usable quantity of marijuana on a desk attached
to the kitchen area. On the ledge of a
window, they found a small, glass smoking pipe with burnt marijuana residue
inside. On the kitchen countertop, they
found a clear plastic baggie with marijuana inside. They also found another bag with over 50
tablets on the countertop.
name="_ftnref4" title="">[4] Holder recalled seeing a baby gate between
the living room and kitchen lying on the floor.
was there. Holder testified all the
drugs were within reach of defendants’ then 22-month-old child.
On the
nightstand in the master bedroom, officers found a lighter, a digital scale,
loose marijuana, and an ashtray. They
also found a number of “High Times†magazines which are typically found amongst
people who use, grow, and sell marijuana.
“[T]he home was unkempt. There
were items strewn about in literally every room of the house.â€
Officers
found a 12-gauge, pump-action shotgun and 13 live rounds of ammunition on the
shelf in the closet of the master bedroom.
They also found a semiautomatic .38-caliber handgun with a magazine and
two or three live rounds next to it on a shelf above the refrigerator.
to the search revealed he had a conviction for assault by force by means likely
to produce great bodily injury, which prohibited him from possessing a firearm. Based on the totality of the circumstances,
Holder came to the conclusion the grow-room was part of an illegal grow
operation.
William told
Holder he was involved with the marijuana grow because “he needed some extra
money and that times were hard.†William
admitted using marijuana. Mary indicated
she frequented the garage. Neither
defendant possessed a valid medical marijuana card nor recommendation at the
time of the search. Holder called child
endangerment investigators to the scene.
Denise
Moore, a forensic interviewer with the Department of Public Social Services,
responded to the residence. She
interviewed defendants. William told her
they had the firearms to scare off coyotes.
He told her he had been cultivating marijuana for at least two weeks
because he needed to supplement his income.
Mary said she knew nothing about the marijuana cultivation; however,
Moore found that difficult to believe due to the toddler toys found in the
garage. Defendants both admitted smoking
marijuana. Moore observed unsecured
marijuana in the home. She made the
decision to place defendants’ child in protective custody.
Detective
McRae also responded to the scene. He
observed a stroller and two rocking horses near the grow-room in the
garage. McRae testified the grow-room
represented a potential fire hazard and could pose a risk to the child because
people would want to rob the home for marijuana and any money associated with
its sale. There were also children’s
toys in the master bedroom; McRae was concerned that the child could ingest any
of the unsecured marijuana found in the home.
After
completing the search of defendants’ home, Holder executed a warrant at Yap’s
home and determined the marijuana growing at the home was within the confines
of the law; hence, Yap was not arrested.
Yap testified he was the current vice president, but former president of
the Human Kindness Center (HKC) for the past three years, which included August
27, 2008. He testified the HKC is “a
private patient collective. We cultivate
marijuana for patients . . . for various needs under [the California’s
Compassionate Use Program].†The parties
stipulated the HKC “‘was a valid authorized legal collective on or about August
27 of 2008.’â€
Yap
testified that he first met William in the beginning or middle of August
2008. He had a discussion with William
about using a portion of William’s garage to grow marijuana. Yap was responsible for purchasing all the
equipment. He and Childers set up the
irrigation systems, lights, temperature controls, and electrical
equipment. Yap intended to pay rent for
the room and recompense for water and electricity; once they became members of
the collective, defendants would receive some of the marijuana. Yap and
Childers brought the marijuana plants into the garage one week prior to August
27, 2008. The grow-room was completely
sealed from ground to ceiling and could be entered only through a door, on
which there was a lock to which Yap had the only key. Yap visited the room daily to care for the
plants; none of them were mature enough to contain any usable marijuana.
Yap
testified he never discussed the grow-room with Mary, nor did she have anything
to do with setting it up. William did
not purchase any of the equipment, set any of it up, or grow the plants for
him.
acknowledged defendants did not have legal medical recommendations to grow
marijuana.
Mary testified she
brought the handgun into the home, and her father-in-law gave her the shotgun.
lions and coyotes in the area. The
codeine pills and marijuana were in a can located in the kitchen cupboard, not
on the counter. There was no unsecured
marijuana in the home. The baby gate was
up and secure on August 27, 2008. Mary
testified she was not involved in the cultivation of marijuana, but knew of its
existence. The stroller and rocking
horses were being stored in the garage; they were not being used by her
child. There were no baby toys in the
master bedroom.
DISCUSSION
A. MOTION TO QUASH WARRANT
Mary
contends the court erred in refusing to quash the
deliberately or recklessly failed to disclose in his affidavit in support of
the warrant the fact that Yap was operating a legal medical marijuana
collective. We disagree.
Holder
submitted an affidavit in support of a search warrant of Catt Road on August
22, 2008. Holder recited his experience
as an investigator with the Riverside County Sheriff’s Department since June
2002; as a deputy with that office since July 1990; and previously as a deputy
with the Orange County Sheriff’s Department.
He declared he was part of a task force consisting of agents and
officers from the DEA, Ontario Police Department, United States Immigration and
Customs Enforcement, Riverside Police Department, Riverside County Sheriff’s
Department, San Bernardino County Sheriff’s Department, and the IRS.
Ball
had received information from a reliable, confidential informant regarding an
indoor hydroponic marijuana grow inside Lilac Road. Further investigation revealed the home
belonged to Childers. Holder noted
Childers had convictions for cultivation and possession of marijuana for sale
on December 14, 2005, for which he was placed on three years’ probation.
On July 31,
2008, Ball went to Lilac Road and observed discarded ventilation ducting,
ducting couplings, vents, fans, and a reflective hood box piled in the
driveway. Based on his training and
experience he believed such objects were used as part of marijuana
cultivations. On August 1, 2008, Ball
walked to the garage door of Lilac Road, where he observed an amber light
similar to that used by high intensity bulbs specifically used to grown indoor
marijuana. He also smelled the odor of
cultivated marijuana emanating from the slightly open garage window and window
next to the front door. He additionally
noted the sound of what he believed to be irrigation systems used in the
cultivation of marijuana.
On August
20, 2008, Ball followed Childers’s vehicle from Lilac Road to Catt Road. William had prior convictions on March 20,
2003, and November 5, 2005, for being under the influence of a controlled
substance. Ball saw Childers exit the
garage, obtain something from his vehicle, and then return to the garage.
On August
21, 2008, Holder spoke with a Southern California Edison Fraud and Revenue
Protection Investigator who informed him Catt Road had several spikes in
electrical usage, including recent bills showing three times that of what a
regular residence of its size uses.
Holder opined Catt Road was being used to cultivate marijuana, and
requested a warrant to search the home, garage, and vehicles. The search warrant was issued upon Holder’s
affidavit.
On June 18,
2009, Mary’s counsel filed a motion to quash the search warrant. Mary’s counsel argued Holder intentionally or
recklessly omitted the fact that Yap, one of the individuals witnessed at
defendants’ home, was the operator of a legal medical marijuana collective,
from the affidavit in support of the search warrant. Counsel attached the declaration of Yap in
which he affirmed he was the President of HKC, a nonprofit medical marijuana
cooperative, and that William had “agreed to build a grow house in his garage
for the collective. I am informed and
believe that [William] had a doctor’s recommendation for medical marijuana and
a valid identification card issued by the State of California for medical
marijuana. I never discussed the details
of the enterprise with Mary Bunn and she had absolutely nothing to do with the
operation.â€
Yap further
declared, “I was responsible for purchasing the plants and [William] was just
growing them for me because he had the facilities. Mary . . . did not know anything about the
operation, and I never discussed the operation with her . . . .†Yap asserted that Holder informed him Yap’s
operation was lawful under state law.
Without
holding an evidentiary hearing, the court denied the motion reasoning “your
argument today is that [Holder] should have known, I don’t have specific
declarations or factors in the moving papers or in the supplemental documents
that prove or meet the burden of proof.
[¶] Because there are no declarations
that specifically support the position Deputy Holder recklessly acted with
disregard for the truth or made false statements or omissions on statements
raised in argument and supposition by the defendant, the Court finds good cause
to deny the motion to quash.â€
“A
defendant who challenges a search warrant based on omissions in the affidavit
bears the burden of showing an intentional or reckless omission of material
information that, when added to the affidavit, renders it insufficient to
support a finding of probable cause.
[Citations.] . . . [T]he defendant must make his showing by a
preponderance of the evidence, and the affidavit is presumed valid.†(People
v. Scott (2011) 52 Cal.4th 452, 484; see also People v. Maestas (1988) 204 Cal.App.3d 1208, 1216.) If a defendant meets her burden, then the
court must determine whether the remaining content of the affidavit is
sufficient to establish probable cause.
If not, then “the search warrant must be voided and the fruits of the
search excluded to the same extent as if probable cause was lacking on the face
of the affidavit.†(Franks v. Delaware (1978) 438 U.S. 154, 156.) “[A] Franks
violation cannot be excused under the . . . good faith exception to the
exclusionary rule.†(
648 F.3d 690, 695, fn. 4.)
Here, Mary
failed to meet her burden to establish a substantial showing of reckless or
intentional omission of material facts.
Mary submitted no evidence that Holder, or any of the officers with whom
he was connected, knew Yap operated a legally valid medical marijuana
cooperative. Mary’s suggestion Holder
“very likely knew about Yap’s lawful operation†is pure conjecture. In fact, the only evidence of such knowledge on the part of Holder came during the
search on Yap’s residence after the
search of defendants’ residence had already been completed. Thus, Mary’s assertion is completely
contradicted by the fact that Holder also executed a search warrant on Yap’s
home. The court correctly denied Mary’s
motion to quash the search warrant.
B. INSTRUCTION ON POSSESSION AS A LESSER
INCLUDED OFFENSE OF CULTIVATION
Mary
contends the trial court erred in denying her request that it instruct the jury
on possession of marijuana as a lesser included offense of marijuana. We hold the court correctly refused the
instruction.
Prior to
trial, Mary’s counsel noted “a third affirmative defense, which is a complete
defense, is no possession. Clearly, if
you don’t have possession, then you don’t need to be a qualified patient, and
you don’t need to be a caregiver. Mr.
Yap’s testimony, as indicated in our report, will say that the marijuana that
was found in [defendants’] garage was within a room that was exclusive to his
control. There was a door that closed,
and there was a lock that only he held the key to. [¶]
Therefore, he had exclusive control of the marijuana.†The prosecutor responded “[Defense counsel]
is completely accurate. . . . [I]t
would be a defense if believed by the jury.â€
After the
People rested its case, but before the defense put on theirs, Mary’s counsel
requested the court instruct the jury on possession as a lesser included
offense of cultivation: “Your Honor, I
believe it’s just simple possession.
There was evidence in this case that there was marijuana in the master
bedroom and also in the kitchen area.
There was testing done, and I believe we had an expert that testified
that he tested a plant-like substance that revealed it was marijuana. That’s simple possession.†The court denied the request.
“[A]
trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence.
[Citation.] It is error for a
trial court not to instruct on a lesser included offense when the evidence
raises a question whether all of the elements of the charged offense were
present, and the question is substantial enough to merit consideration by the
jury. [Citation.] When there is no evidence the offense
committed was less than that charged, the trial court is not required to
instruct on the lesser included offense.
[Citation.]†(
181.)
The
obligation to instruct on lesser included offenses arises even where
inconsistent with the defense’s theory of the case or where specifically
objected to by the defense, so long as substantial evidence supports it. (People
v. Breverman (1998) 19 Cal.4th 142, 159.)
“[E]very lesser
included offense, or theory thereof, which is supported by the evidence must be
presented to the jury.†(
court erred in failing to instruct on a lesser included offense. [Citation.]†(People
v. Booker, supra, 51 Cal.4th at
p. 181.) Simple possession of marijuana
is a lesser included offense of cultivation.
(See People v. Dieck (2009) 46
Cal.4th 934, 938; CALCRIM No. 2370.)
Here,
instruction on possession as a lesser included offense was both inconsistent
with the defenses’ theory of the case and was not supported by substantial
evidence. A lesser included offense of
possession could not be based upon defendants’ control of marijuana within the
home, because they were not charged with any offenses for that behavior. As the court correctly pointed out,
defendants were charged with cultivation based on the live marijuana in the
grow-room, not on any marijuana in the house.
Thus, the court correctly denied Mary’s request.
C. SUBSTANTIAL EVIDENCE OF CHILD
ENDANGERMENT
Mary
argues insufficient evidence supports her conviction of misdemeanor child
endangerment. William joins her
argument. We hold substantial evidence
supported defendants’ convictions for child endangerment.
“‘In
reviewing a challenge to the sufficiency of the
facts ourselves. Rather, we “examine the
whole record in the light most favorable to the judgment to determine whether
it discloses substantial
evidence—
that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.†[Citations.]
We presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]
[¶] The same standard of review
applies to cases in which the prosecution relies primarily on circumstantial
. . [Citation.] “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled
a contrary finding.†[Citation.] We do not reweigh evidence or reevaluate a witness’s
credibility.’ [Citation.]†(People v. Houston (2012) 54 Cal.4th 1186,
1215.) “Any person who . . . willfully
causes or permits [a] child to be placed in a situation where his or her person
or health may be endangered, is guilty of a misdemeanor.†(§ 273a, subd. (b); CALCRIM No. 823.)
Here,
sufficient evidence was adduced that defendants’ actions placed their child in
a situation in which his health might be endangered. Although Holder testified he saw a baby gate,
he said it was down when the search warrant was executed, giving the child
access to the kitchen; in fact, he said he saw the child enter the kitchen
while he was there. Holder testified the
officers found a bag of marijuana and the codeine tablets on the kitchen counter
within reach of the child. Moore observed
unsecured marijuana in the home, including on the counter in the kitchen,
within reach of the child. Officers also
found a usable amount of marijuana on a desk attached to the kitchen area. On the ledge of a window, they found a small
glass smoking pipe with burnt marijuana residue inside. On the nightstand in the master bedroom in
which children’s toys were seen, officers found a lighter, a digital scale,
loose marijuana, and an ashtray.
name="_ftnref9" title="">[9] This evidence, in and of itself if believed,
was enough to support the conviction because it could have led to accidental
ingestion of the drugs by the child.
The People
additionally adduced evidence a shotgun was found on the bed in the master
bedroom.
title="">[10] Children’s toys were located in the garage
next to the grow-room. Despite Mary’s
testimony to the contrary, this was sufficient circumstantial evidence for the
jury to determine defendants’ child played in the garage. In fact, Mary indicated she frequented the
garage. Holder testified the door to the
grow-room was unlocked when he first encountered it. McRae testified the grow-room represented a
possible fire hazard. Moreover, there
was a danger the child might pick up and ingest marijuana clippings inside the
grow-room. Thus, sufficient evidence was
adduced below to support defendants’ convictions for misdemeanor child
endangerment.
D. PROSECUTORIAL MISCONDUCT
William
argues the People engaged in several acts of prejudicial prosecutorial
misconduct during its closing and rebuttal
arguments. We hold the People
committed no acts of misconduct.
Misconduct
by the prosecutor violates the federal
Constitution when it “‘“‘comprises a pattern of conduct “so egregious that
it infects the trial with such unfairness as to make the conviction a denial of
due process.â€â€™â€â€™â€ (People v. Hill (1998) 17 Cal.4th 800, 819.) “‘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 court or the jury.â€â€™â€ [Citation.]’
[Citation.]†(
We review de novo a defendant’s claim of prosecutorial misconduct. (People
v. Uribe (2011) 199 Cal.App.4th 836, 860.)
“‘“‘[T]he
prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.’†[Citation.]’
[Citation.] When we
claim of prosecutorial
remarks constituting misconduct, we examine whether there is a reasonable likelihood
that the jury would have understood
mischief complained of.
[Citation.]’ [Citation.] ‘To prevail on a claim of prosecutorial misconduct based on remarks to the
jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner. [Citations.]
In conducting this inquiry, we “do not lightly infer†that the jury drew
the most damaging rather than the least damaging meaning from the prosecutor’s
statements.’ [Citation.]†(People
v. Spector (2011) 194 Cal.App.4th 1335, 1403.)
1. ALLEGED
DISPARAGEMENT OF DEFENSE COUNSEL
During its
closing argument, the People argued, “Defense counsels want[] you to believe
this case is about medical marijuana.
But you didn’t hear any testimony about that because it’s
irrelevant. They want you to believe
this is about medical marijuana because they think that’s going to convince you
to come back with a verdict of not guilty.
But the stipulation is simply not relevant because [defendants] are
charged with cultivating marijuana, and they are the only defendants in this
case. Mr. Yap is not a defendant. No members of that collective are a defendant. The only people charged with cultivating
marijuana are the people who resided at the area in the land that had the
marijuana grow. Don’t be misdirected,
folks. It’s the defense attorney’s job
to misdirect you.â€
name="_ftnref11" title="">[11]
Mary’s
counsel objected on the grounds of improper argument. The court overruled the objection. The prosecutor continued, “Any argument about
medical marijuana or the Second Amendment rights or vicious mountain lions is
meant to misdirect you. The jury
instructions are meant to keep you on that path, that path of knowledge, that
path of understanding, that path of wisdom.â€
Although
we in no way condone such argument, we find no legal error in the People’s
single, passing statement that the job of the defense attorney is to misdirect
the jury. Indeed, the comment was less
objectionable than those made by prosecutors in People v. Breaux (1991) 1 Cal.4th 281, People v. Gionis, supra,
9 Cal.4th 1196, and People v. Cunningham
(2001) 25 Cal.4th 926, all of which were found to have been proper reminders
the jury should focus on the evidence and not on the arguments. (Breaux,
at pp. 305-306 [if the defense has neither facts nor law on its side, defense
counsel will attempt to confuse the jury]; Gionis,
at pp. 1215-1216 [defense counsel “arguing out of both sides of his mouth†and
had engaged in great lawyering]; Cunningham,
at pp. 1002-1003 [statement by prosecutor that defense counsel’s job was to put
up straw men, smoke, and red herrings].)
Thus, we hold no misconduct occurred.
2. CONTENTION
THAT EVIDENCE DID NOT EXIST
During its rebuttal
argument, the People argued, “Defense argues Christopher Yap could be ordered
to produce receipts. I [do not] know
where he gets that from. I know of no
such ability for us to order him to bring in something like that. What I was arguing is that if your position
is that you want this jury to believe that you purchased the equipment for the
collective operating lawfully, why not just bring the receipts in? Obviously, you need to keep them because you
have to charge each member of your collective their proportion[al] share. Surely, you have records. Why not bring them in? Because they don’t exist. Because this was [defendants] cultivating
this room.â€
Defendants
contend the People’s statement the documents did not exist constituted
prejudicial misconduct. First, neither
defendant objected below; thus, the argument was forfeited. (People
v. Tully, supra, 54 Cal.4th at p.
1049 [“‘Because we cannot assume that an objection and admonition would have been
futile or
ineffective, [defendants have] forfeited [their] appellate claim[s] of
People did not know for certain such documents did not exist, it is a logical
inference that had Yap possessed documents that would have substantiated his
testimony, defendants could have adduced them at trial. There is no evidence on this record the
People were apprised the documents did exist.
Thus, the People were not contradicting known but excluded evidence.
Third,
comments by the People on the absence of evidence adduced by the defense are
not misconduct if they do not imply the defense had a burden to produce such
evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339-1341 [“[B]rief
comments by the prosecution during closing argument noting the absence of
evidence contradicting what was produced by the prosecution on several points,
and the failure of the defense to introduce material evidence or any alibi
witnesses†did not constitute misconduct where the People made no “improper
statement that a defendant has a duty or burden to produce evidence, or a duty
or burden to prove his or her innocenceâ€].)
The People made no insinuation defendants had either the burden of
production or proof. Thus, the People
did not commit prosecutorial misconduct by asserting documentary evidence of
Yap’s purchase of the equipment did not exist.
3. APPEALING
TO THE PASSIONS
In
its rebuttal argument, the People argued defendants failed “to create a safe
living environment free of unsecured firearms, free of narcotics, free of
prescription drugs, free of fire hazards, free of dangerous smoke. [¶] .
. . [The child] now depends on you.â€
Mary’s counsel objected on grounds of improper argument. The court overruled the objection. The prosecutor went on to argue, “He is
dependent upon you now to say that that’s unacceptable. When you take on the role as parent, you need
to be a parent. You need to parent that
child in a safe and responsible way and create a safe environment. He depends on you to tell them this is
unacceptable.†Mary’s counsel renewed
his objection. The court overruled the
objection again.
title="">[12]
Defendants
contend the People committed prejudicial misconduct by appealing to the
passions of the jury. We disagree.
It is
improper for the prosecutor to appeal to the passions or prejudices of the
jury, particularly with respect to invoking sympathy for the victim. (People
v. Gonzales (2011) 51 Cal.4th 894, 952 [prejudicial misconduct where
prosecutor read an “extended and melodramatic oration couched as a letter to
the victimâ€]; People v. Vance (2010)
188 Cal.App.4th 1182, 1192-1202 [prejudicial misconduct where prosecutor made
repeated requests the jury put itself in the victim’s shoes and invocation of
“Golden Rule†even after the court’s sustainment of multiple defense
objections, but trial court’s refusal to issue admonition].)
However,
here the prosecutor made two minor and fleeting references to the victim that
we cannot conclude rendered the entire trial unfair. (People
v. Medina (1995) 11 Cal.4th 694, 759-760 [appellate court reviewing
prosecutor’s request the jury “‘do the right thing, to do justice, not for our
society, necessarily or exclusively, but for [the victim], an 18-year-old boy
who was just working at a gas station one night’ found “no reasonable
probability that the prosecutor’s brief and isolated comments could have
influenced the jury’s guilt determinationâ€].)
The remarks, here, are much closer to those in Medina than Gonzales or
not result in prejudice to defendants.
DISPOSITION
The judgment
is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We
concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
name="_ftn1" title=""> [1] The
jury found both defendants not guilty of the charged offense of felony child
endangerment. (Pen. Code, § 273a, subd.
(a).)
name="_ftn2" title=""> [2] All
further statutory references are to the Penal Code unless otherwise indicated.
