P. v. Tourville

Filed 9/27/06 P. v. Tourville CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Larry Tourville was convicted of possession of heroin for sale and simple possession of heroin. This appeal asserts instructional error, prosecutorial misconduct, and sentencing error. We reverse the conviction for simple possession and order the judgment modified to correct the fines imposed. In all other aspects we affirm.

BACKGROUND

Lori Thornley (also known as Lori Mason) was a good friend of defendant’s. On October 3, 2005, Thornley called him. He sounded very ill, so she went to see him at his parents’ home on Barker Street to take him to the emergency room. Thornley was highly intoxicated at the time. A former heroin addict, she testified that she had been clean for a year and did not bring any heroin or heroin paraphernalia with her.

Defendant and his friend Josh were there when Thornley arrived. Defendant was injecting heroin. At Thornley’s request, defendant told Josh to “cook” heroin for her. Thornley’s next recollection after injecting the drug was coming to and being told she had overdosed.

The police responded to a telephoned report that a woman overdosed at the home on Barker Street. Defendant directed Deputy Sheriff Daniel Schneck to a bathroom, where Thornley was unconscious. The cap to a hypodermic syringe was on the bathroom counter. Concerned that an uncapped needle was dangerous, Schneck asked defendant for the needle so he could properly dispose of it. Defendant led him to a bedroom and lay down on the bed. An uncapped needle was on the nightstand, along with two other capped needles, a prescription bottle with defendant’s name on it, an unmarked clear box containing pills, a cotton ball and a spoon with a brown residue on it.

Defendant’s wallet, containing $205 in cash, was on the bed. Under a pillow near where defendant was lying, officers found a red balloon in a plastic bag containing what appeared to be a large amount of heroin.^[1] Also in the bedroom was the cut-off bottom of a soda can containing a cotton ball and brown residue. A police scanner, a digital scale, marijuana, marijuana pipes, and a torn plastic Wal-Mart bag were in the living room. There was a brownish substance resembling heroin on top of the scale and a knife and razor blades usable for chopping heroin next to it, as well as a strip from the Wal-Mart bag. Deputy Schneck testified that heroin dealers use pieces of such bags for packaging.

The main defense theory was that the heroin belonged to Thornley or Josh rather than defendant. Defendant told the police he was house-sitting for his parents, although mail addressed to him was found in the house. No “pay owe sheets,” used by some drug dealers to keep track of their customers’ transactions, were found.

Defendant was convicted of one count of possession of heroin for sale and one count of simple possession. The court denied probation, imposed the two-year lower term on the possession for sale count and the 16-month lower term for simple possession, and stayed the latter pursuant to Penal Code section 654.^[2] Defendant filed a timely appeal.

DISCUSSION

I. CALCRIM No. 103

The court instructed the jury using the new, “plain English” CALCRIM instructions, rather than CALJIC. (See 5 Witkin & Epstein, Cal. Criminal Law (2006 supp.) Criminal Trial, § 628B, p. 278.) Defendant challenges the validity of CALCRIM No. 103. The specific language he challenges is: “I will now explain the presumption of innocence and the People’s burden of proof. The defendant has pled not guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. (Italics added.)

Defendant contends the last two sentences (in italics) of the instruction prejudicially misstate what constitutes evidence. He concedes the instruction correctly states that jurors must not be biased against the defendant simply because he has been arrested, charged with a crime, or brought to trial, and that the filing of a criminal charge is not evidence the charge is true. But he claims the instruction deviates from the law because it fails to also state that the defendant’s being arrested and brought to trial are not evidence of guilt. He asserts: “The jury must have been struck by the difference in the two sentences in CALCRIM 103. The sentence relating to bias listed three things that the jury could not consider on that question: arrest, charge, or bringing the charge to trial. But the sentence about what could not be considered evidence listed only one item: the charge. (CALCRIM 103.) The most reasonable interpretation for the average juror is that there must be a reason for the difference: that the jury could consider as evidence that the appellant had been arrested, and had been brought to trial.”

We question his premise that the wording of the instruction would in fact cause a juror to reach such a tenuous conclusion. It seems most unlikely that a juror listening to CALCRIM No. 103 would conclude that while he or she should not be biased against defendant because he was arrested and brought to trial, the juror could consider those events as evidence of his guilt. To state the proposition is to refute it.

But there is no need to delve into that question because the instructions as a whole refute defendant’s interpretation. “It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 756.) Accordingly, “ ‘[T]he fact that each instruction does not cover the whole case[] does not make such instruction erroneous, if the instructions, as a whole, did so . . . .’ “ (People v. Wade (1995) 39 Cal.App.4th 1487, 1491.) The jury was instructed to “decide what the facts are in this case. You must use only the evidence that is presented in the courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence and everything else I tell you to consider as evidence.” (CALCRIM No. 104.) This instruction dispels any conceivable suggestion that the jury could consider defendant’s arrest and being brought to trial as evidence.

II. CALCRIM No. 302

Defendant contends that CALCRIM No. 302 improperly invited the jurors to decide which side to believe by “count[ing] up the number of witnesses on the issue.” We disagree.

The court instructed the jury that: “If you determine there is a conflict in the evidence, you must decide what evidence if any to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, [do] not disregard the testimony of the greater number of witnesses or any witness without a reason or because of prejudice or desire to favor one side over the other. What is important is whether the testimony or any other evidence convinces you not only the number of witnesses who testifies [sic] about it.” (CALCRIM No. 302, italics added.)

Defendant argues that the italicized language in the final sentence of CALCRIM No. 302 misrepresents the law because it suggests the jury may consider the relative number of witnesses on either side as a relevant factor in deciding which side to believe. He argues that CALCRIM No. 302 conflicts with the parallel CALJIC instruction, CALJIC NO. 2.22, which states: “You are not required to decide any issue of fact in accordance with the testimony of a number of witnesses, which does not convince you, as against the testimony of a lesser number or other evidence, which you find more convincing. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim or prejudice, or from a desire to favor one side against the other. You must not decide an issue by the simple process of counting the number of witnesses [who have testified on the opposing sides]. The final test is not in the [relative] number of witnesses, but in the convincing force of the evidence.” (CALJIC No. 2.22; see People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 & fn. 8 [approving CALJIC No. 2.22 as a correct statement of law]; People v. Clay (1984) 153 Cal.App.3d 433, 462 [same].)

The two instructions do not conflict. CALJIC No. 2.22 does not forbid the jurors from considering the number of witnesses on a side as one potential factor; rather, it cautions that number alone, without convincing force, is not a proper basis for deciding whom to believe. Similarly, CALCRIM No. 302 directs the jurors that the critical point is whether the testimony or any other evidence is convincing: “What is important is whether the testimony or any other evidence convinces you not just the number of witnesses who testify about a certain point.” (CALCRIM No. 302.) Moreover, CALCRIM No. 302 pointedly instructs the jurors that they are not to “simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses.” (CALCRIM No. 302.) This plain language defeats defendant’s contention.

III. Prosecutorial Misconduct

A. Eliciting Testimony

Defendant asserts the prosecutor committed misconduct by eliciting testimony that a firearm was found under the bed. We disagree.

The prosecutor asked Drug Task Force Deputy Gerald Harwood a series of questions about incriminating items recovered from the bedroom. Deputy Harwood described finding items including the heroin, heroin paraphernalia, and cash. Then, when the prosecutor asked whether he found “anything” else in the bedroom, Deputy Harwood replied “I believe we found a shotgun lying under the bed.” Defense counsel objected that the testimony was irrelevant because the house was not defendant’s residence. The prosecutor responded, “That’s fine, Judge. I’ll strike the question or ask the court strike the answer with respect to the gun.” The prosecutor’s next questions elicited testimony about the prescription bottles found near the bed.

On cross-examination, defense counsel asked: “Q: And at some point I gather you walked into bedroom number two, is that correct? A: Yes. Q: Where you see three hypodermic needles? A: Yes, they were pointed out to me. All the evidence was pointed out to me with the exception of the gun.” On defense counsel’s request, the court struck the reference to the gun.

Defendant argues the discussion about the gun amounted to prejudicial misconduct because the gun was irrelevant to any of the charges.^[3] “A prosecutor has the duty to guard against statements by his witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement.” (People v. Warren (1988) 45 Cal.3d 471, 481-482.) There is no indication the prosecutor had any reason to believe Deputy Harwood would mention the gun. The gun was first mentioned in response to a general question that was one of a series of questions seeking testimony about the drugs and drug paraphernalia found in the bedroom and when there was further testimony about admissible items found in the bedroom. The second reference was in response to defense counsel’s questioning. Assuming that the prosecutor had a duty to prevent inadmissible testimony in this situation (see People v. Earp (1999) 20 Cal.4th 826, 865), nothing in the record suggests the prosecutor had any reason to anticipate Deputy Harwood would mention the firearm again after the court, at the prosecutor’s request, struck his initial reference to it.

In any event, we find no prejudice. Deputy Harwood’s second, cursory reference to the gun added nothing in either substance or weight to the previous testimony. The court immediately struck both statements and admonished the jury to disregard them. In the absence of any contrary evidence, we presume the jury heeded these admonitions. (People v. Burgener (2003) 29 Cal.4th 833, 874; People v. Wash (1993) 6 Cal.4th 215, 263.)^[4]

B. Argument

Defendant next contends the prosecutor twice committed misconduct in his closing argument. First, he claims, the prosecutor “introduced his own version of the ‘facts’ in the case” by rebutting defense counsel’s argument that the pieces of plastic bag found at the house were innocent: “[Prosecutor]: [Defense counsel] indicates that ripped bags can exist anywhere. I submit to you I have ripped plastic bags at my house and-- [Defense Counsel]: I object to testimony introduced by putting himself in place of the jury. He’s testifying to his personal experiences, Your Honor. The Court: The objection is overruled. [Prosecutor]: But I would submit to you that I don’t have little pieces of Wal-Mart bags lying next to digital scales, next to a police scanner . . . next to digital scales . . . .”

Defendant contends that in representing there were torn plastic bags in his own house, the prosecutor improperly introduced facts not in evidence. Even assuming arguendo that this innocuous comment exceeded the wide latitude accorded the prosecutor during argument (People v. Dickey (2005) 35 Cal.4th 884, 915), we again cannot conceive how any prejudice could have resulted--and defendant fails to identify any.

Defendant’s second claim of misconduct concerns the prosecutor’s commentary on Thornley’s credibility. The prosecutor argued: “If you recall, Ms. Mason came into court--testified that she plead guilty. She was sentenced on January 4th to 90 days. So what’s her motive? Well, she testified that she initially didn’t want to come forward and didn’t talk to the police because defendant is her friend--was her friend. Motive to deal with the D.A.? I’m not cutting her any deals. She’s still going to do her 90 days. I didn’t promise her anything for her testimony.” Then, “Ms. Mason took responsibility for her actions. Ms. Mason pled guilty. Ms. Mason has no motivation to lie. Ms. Mason is not getting out of jail. Ms. Mason is not going to be charged. [Sic.] We’re not going to not file charges against Ms. Mason because she came to court and testified.”

Defendant contends this was improper vouching “since the prosecutor personally averred that neither he nor anyone else in his office had cut a deal with Mason.” Because he made no objection to the foregoing remarks, he waived the right to complain of it on appeal. (People v. Medina (1995) 11 Cal.4th 694, 756-757; People v. Fierro (1991) 1 Cal.4th 173, 211.) But even if he did, a prosecutor’s assurances as to a witness’s honesty or reliability are not improper vouching if they are based on the record and reasonable inferences drawn from it. (People v. Frye (1998) 18 Cal.4th 894, 971; People v. Medina, supra, at p. 757.) The comments defendant complains of are supported by Thornley’s testimony that she was incarcerated at the time of trial; that she was given no promises in return for her testimony; that her sentence was not going to be reduced because of it; and that she was reluctant to testify against defendant, who was her friend. There was no impermissible vouching.

IV. The Sentence Imposed For Simple Possession

The abstract of judgment indicates that the sentence on the simple possession conviction (count 2) was to run concurrent with the sentence on the conviction for possession for sale (count 1). The parties agree that the abstract fails to reflect the trial court’s stay of the sentence on count 2. Although defendant asks us to order that the abstract of judgment be amended, the People correctly point out that the conviction on count 2 must be reversed because it is a lesser included offense of count 1. (People v. Magana (1990) 218 Cal.App.3d 951, 954 [conviction must be reversed or vacated].)

V. The Section 290.3 Fee

The court imposed a $100 “lab” fee pursuant to section 290.3. The parties correctly agree that this fee was not authorized by section 290.3, which provides for a fine of $200 or $300 for certain sex offenders. Accordingly, it must be stricken.

The People point out that the trial court failed to impose the $50 drug laboratory analysis fee (Health & Saf. Code, § 11372.5) plus the applicable penalty assessments of $50 (§ 1464) and $35 (Gov. Code, § 76000, subd. (a).) As these are mandatory fees, we modify the judgment to reflect imposition of these amounts. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153-1157; People v. Taylor (2004) 118 Cal.App.4th 454, 456.)

DISPOSITION

The conviction on count 2 is reversed and the fee imposed under section 290.3 is stricken. The judgment is modified to reflect imposition of a drug laboratory analysis fee of $50 (Health & Saf. Code, § 11372.5), a state penalty assessment of $50 (§ 1464), and a county penalty assessment of $35 (Gov. Code, § 76000.) In all other respects, the judgment is affirmed.

_________________________

Siggins, J.

We concur:

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McGuiness, P.J.

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Parrilli, J.

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^[1] Testing subsequently revealed the material was 26.123 grams of heroin.

^[2] All further statutory references are to the Penal Code unless otherwise noted.

^[3] The People argue for the first time on appeal that the gun was relevant, despite the absence of firearms charges, because it tended to prove defendant was dealing heroin. Because the prosecutor made no such argument at trial, and defendant had neither the occasion nor the need to refute it, we deem it waived.

^[4] Although another witness, Deputy Sheriff Joseph Garcia, also mentioned the gun when he testified about items found in the bedroom, defendant waived any claim of misconduct in connection with this testimony by failing to raise it in his opening brief. In any event, as with the other testimony discussed above it was unsolicited and immediately stricken by the trial court, who instructed the jurors that they should disregard it and it should bear no part in their deliberations. Defense counsel indicated then that he was satisfied with the admonition.