Filed 8/31/18 P. v. Schmidt CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer L. Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Michael Schmidt was convicted by jury of possessing and transporting a controlled substance for sale. The issue at trial was whether his admitted possession of methamphetamine had been for personal use or resale. The claims on appeal concern statements made during the People’s rebuttal argument; defendant alleges prosecutorial misconduct and ineffective assistance of counsel. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 2015, deputies from the Kern County Sheriff’s Office conducted a parole search of the then-40-year-old defendant. He had been pulled over while driving a red Chevrolet Corvette convertible and was travelling with a 19-year-old passenger. Defendant had $45 in his wallet and a plastic bag containing 9.5 grams of methamphetamine in his pants pocket. The passenger was found in possession of a hypodermic syringe and a small vial containing 0.038 grams of methamphetamine. In the vehicle’s center console, deputies found a scale with traces of white crystalline residue.

Defendant was charged with transportation of methamphetamine for sale (Health & Saf. Code, § 11379), possession of methamphetamine for sale (id., § 11378), and misdemeanor driving on a suspended or revoked license (Veh. Code, §14601.1, subd. (a)). He was alleged to have suffered two prior convictions for the transportation or possession for sale of a controlled substance (Health & Saf. Code, § 11370.2, subd. (c)) and to have served five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant pleaded no contest to the misdemeanor charge and successfully moved to have the enhancement allegations determined in a bifurcated bench trial. The drug charges were tried before a jury in April 2016.

The trial evidence showed defendant was unemployed at the time of his arrest. According to the People’s theory, his alleged involvement in the sale of methamphetamine explained how he was able to support himself and drive a recently purchased Corvette. In arguing defendant was a dealer rather than a user, the prosecution noted the presence of a scale inside of the car, the lack of physical signs of methamphetamine use, and the amount of narcotics he had been carrying. In contrast, the younger passenger had a syringe and possessed a much smaller quantity of the drug. The passenger was portrayed as defendant’s customer.

Deputy Conrado Curiel testified as an expert witness based on his training and experience as an undercover narcotics investigator. He explained that the average dose for a typical methamphetamine user is 0.1 grams, though longtime addicts might ingest upwards of 0.3 grams and in extreme cases as much as 0.5 to 0.7 grams. In his experience, it is uncommon for mere users to purchase more than an eighth of an ounce at a time unless they intend to sell some of their supply. Responding to a hypothetical question designed to mirror the underlying facts, Curiel opined defendant’s possession of 9.5 grams of methamphetamine was for purposes of sale rather than personal use.

Defendant testified on his own behalf. He described a 23-year history of methamphetamine abuse, which had negatively impacted his school performance and job prospects. To preempt impeachment of his credibility on cross-examination, he admitted to suffering felony convictions for unspecified crimes of moral turpitude in the years 2000 and 2013.

From April 2014 until October 2015, defendant worked as a machinist, earning $9 an hour, but lost the job because of his drug addiction. He had allegedly managed to save $4,500, which he was living off of at the time of his arrest in December 2015. He resided with his mother, paying monthly rent of $600, and consumed about a gram of methamphetamine on a daily basis.

The Corvette was purchased from a dealership in mid-2015, but it had been sold and registered to defendant’s mother because “She [had] better credit than [him].” He paid her an unspecified amount to drive the car and also covered fuel expenses, which were estimated at $50 per week. Defendant testified to purchasing the 9.5 grams of methamphetamine for $70 just a half hour before his arrest, alleging the quantity represented about a one-week supply given his customary usage. Denying any intent to resell the drugs, he claimed to have brought his scale to the point of purchase to ensure he “wasn’t being cheated, [i.e.,] ripped off.” On rebuttal, Curiel opined the value of the drugs would have been closer to $100–$150, not $70.

Defendant was convicted as charged and all enhancement allegations were found to be true. For the transportation crime, the trial court imposed the upper term of four years in prison, which was increased to 10 years because of the prior conviction enhancements. Punishment for the possession charge was stayed pursuant to Penal Code section 654, and a concurrent jail term was imposed for the misdemeanor driving offense. The prior prison term enhancements were stricken for purposes of sentencing.

DISCUSSION

Prosecutorial Misconduct

Additional Background

Defendant’s first claim is based on the following excerpts from the People’s rebuttal argument. He alleges the italicized statements constitute improper vouching, misstatements of the law, and/or an attempt to lower the prosecution’s burden of proof.

“You decide what the facts are. You, not me. And certainly not the defense attorney. [¶] So who do you believe?”

“If you believe Officer Curiel, an officer who didn’t make the arrest, who wasn’t on scene and had really no dog in this fight, he’s coming in as an abstract. He’s coming in with his years of experience and training, reading the police report, looking at the laboratory result, looking at how the defendant is acting and what the defendant said, looking at the cash, looking at the denominations and looking at the amount, as well as the scale, and he opined it’s for sales. You decide the facts. [¶] Officer Curiel is telling the truth, and you believe him, you’re gonna take page one and sign here.” (Italics added.)

Defense counsel interrupted with an objection that the prosecutor was “misstating the burden of proof.” The objection was overruled, and the prosecutor continued: “Page two, leave it blank. But don’t throw it away, give it back to the judge. [¶] Page three, sign right there. [¶] Page four, leave it blank.” (Italics added.)

In addition to the above statements, defendant complains of the prosecutor’s comments about the car he drove on the day of his arrest. During closing argument, the prosecutor apparently displayed a photograph of a Chevrolet Corvette. The trial court said, “That picture is just for illustrational purposes. You’re not representing that that’s the defendant’s vehicle?” The prosecutor replied, “That’s correct, Your Honor. This is actually from Google Images.” Later, on rebuttal, the prosecutor displayed the image again and said, “I don’t have a picture of the defendant’s car. But we’re talking about a brand new Corvette.” (Italics added.)

Defense counsel objected to the “brand new” remark as a misstatement of the evidence, and the objection was sustained. Counsel then asked for the photograph to be removed since it did not depict the subject vehicle, which prompted the following exchange between the trial court and prosecutor:

“[THE COURT]: Well, we’ve already established that, but there was no evidence as to how new or how old or what condition the Corvette was in.

“[PROSECUTOR]: From my memory, I think the defendant talked about how he bought the Corvette a few months prior to being contacted.

“[THE COURT]: But he didn’t say it was a new Corvette.

“[PROSECUTOR]: Yes, Your Honor.

“[Resuming argument:] Unemployed, driving a really nice car, lots of cash and lots of methamphetamine.” (Italics added)

Standard of Review

Allegations of prosecutorial misconduct are analyzed under federal and state law standards. “A prosecutor’s misconduct 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.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally unfair’ violates California law ‘only if it “ ‘involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Harrison (2005) 35 Cal.4th 208, 242 (Harrison).)

“As a general matter, an appellate court reviews a trial court’s ruling on prosecutorial misconduct for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213.) The overruling of an objection to the prosecutor’s statements implies a finding that prosecutorial misconduct did not occur. (See ibid.) In the absence of a due process violation, reversal for prosecutorial misconduct is not warranted unless there is a reasonable probability a result more favorable to the defendant would have been reached without the misconduct. (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew); People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

Statements re: Burden of Proof

“It is improper for the prosecutor to misstate the law, and in particular to attempt to reduce the People’s burden of proof beyond a reasonable doubt.” (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.) “When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘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.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)

Viewing the challenged statements in the context of the entire argument, we conclude the defense objection was properly overruled. The prosecutor began her closing argument by stating, “I have the burden to prove to you the truth of the charges beyond a reasonable doubt.” She correctly recited the People’s burden again at the start of her rebuttal and made no discernable attempt to imply the standard was anything other than beyond a reasonable doubt. As noted in the People’s briefing, the remarks about Curiel spoke to the jury’s province to make credibility determinations, and it is unlikely the statements were construed in the manner suggested by defendant. The prosecutor did not misstate the law or suggest a lesser burden of proof by urging jurors to find defendant guilty as charged if they “believed,” i.e., agreed with, Curiel’s opinion regarding possession/transportation for purposes of sale.

Furthermore, “arguments of counsel ‘generally carry less weight with a jury than do instructions from the court.’ ” (People v. Mendoza (2007) 42 Cal.4th 686, 703.) “When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Osband (1996) 13 Cal.4th 622, 717.) Here, the jury was correctly instructed on the reasonable doubt standard and presumption of innocence, and were cautioned, “If you believe that the attorneys’ comments on the law conflict with [the court’s] instructions, you must follow [the] instructions.” There is nothing in the record to suggest the jury was misled by the prosecutor’s statements or disregarded the trial court’s instructions. Insofar as the challenged remark may be construed as improper, defendant fails to show prejudice.

Alleged Vouching

Defendant contends the prosecutor vouched for the credibility of a witness by saying, “Officer Curiel is telling the truth.” Reading the entire statement in context, we question whether the court reporter inadvertently omitted the word “if” from the beginning of the sentence. Assuming the transcription is accurate, no improper vouching has been shown.

“ ‘[A] prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [the prosecutor’s] comments cannot be characterized as improper vouching.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 499.)

In short, a prosecutor engages in vouching by making statements that are “understood to refer to facts available solely to the government or to the prosecutor’s personal knowledge or beliefs or the prestige of her office.” (People v. Mendoza (2016) 62 Cal.4th 856, 907.) The record in this case discloses no such behavior. “That a jury may infer the prosecutor believes the witness is testifying truthfully does not mean there has been misconduct. There is misconduct only if the prosecutor’s questions or arguments suggest his or her belief in the witness’s veracity is based on information to which the jury is not privy or otherwise encourage the jury to rely on the prosecutor’s belief rather than assessing the witness’s credibility for itself.” (People v. Price (2017) 8 Cal.App.5th 409, 464.) We thus reject defendant’s assertion of error.

Statements re: Defendant’s Corvette

A prosecutor commits misconduct by misstating the evidence presented at trial. (People v. Davis (2005) 36 Cal.4th 510, 550.) Defendant contends the prosecutor misstated the evidence by describing his Corvette as “brand new” and “a really nice car.” The People concede, and we agree, the first comment was improper. The second remark, however, fell within the permissible scope of argument.

“ ‘ “It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” ’ ” (People v. Williams (1997) 16 Cal.4th 153, 221.) Regarding the “really nice car” statement, we believe it is common knowledge that a Corvette is a luxury sports car. Whatever the vintage, it is not a vehicle typically associated with someone who is paid at or below minimum wage (in this instance $9 per hour), much less a twice convicted felon with a methamphetamine addiction who is unemployed and lives with his mother. Moreover, defendant’s testimony that the car had recently been purchased from a dealership and required financing only available to a creditworthy buyer permitted some inferences about its condition and value. Since the term “really nice” has no precise meaning and is open to interpretation, its use in this context did not amount to prosecutorial misconduct.

The statement about the car being “brand new” clearly did not “ ‘infect[] the trial with such unfairness as to make the conviction[s] a denial of due process.’ ” (Harrison, supra, 35 Cal.4th at p. 242.) The question is whether the error was prejudicial under state law. As noted, the test 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. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa)), and if so, “it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” (Crew, supra, (2003) 31 Cal.4th at p. 839.)

Considering the totality of the circumstances, the prosecutor’s misstatement was “not so extreme or so divorced from the record that [it] could not have been cured by prompt objections and admonitions,” which is exactly what occurred. (People v. Carrera (1989) 49 Cal.3d 291, 320; see McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 539 [“Misstatements of the record bearing a potential for prejudice may possibly be cured by a prompt objection and an admonition by the court”].) After sustaining the defense objection, the trial court made clear what attentive jurors would have already known: “there was no evidence as to how new or how old or what condition the Corvette was in.” We thus conclude the trial court’s statements cured the error.

The record further indicates the jury was focused on the believability of defendant’s testimony. It made one request for guidance during deliberations: “What is the definition for moral turpitude? He was convicted twice and the question came up for credibility of witness.” Regardless of the Corvette’s condition and value, defendant’s lifestyle was at odds with his purported financial means. He had earned $9 per hour until losing his job in October 2015, but two months later was still keeping up with monthly expenses of $600 in rent, at least $280 to feed his drug addiction ($70 x 4), $200 in fuel costs ($50 x 4), plus unknown amounts for car payments to his mother and basic necessities such as food. The chances of a more favorable verdict largely hinged on the believability of his testimony about having saved $4,500 before losing his job and his explanation about having a scale only to avoid being “ripped off” by drug dealers. Viewing the record as a whole, we conclude the misstatement about his car being “brand new,” which was promptly corrected by the trial court, was not prejudicial.

Ineffective Assistance of Counsel

Defendant’s second claim concerns references in the People’s rebuttal argument to the film Scarface (Universal Pictures 1983). As stated in defendant’s briefing, Scarface is “a 1983 movie starring Al Pacino as a Miami drug kingpin who started with nothing and through violence and murder rose to control a vast cocaine empire and liv[e] in a heavily guarded estate, bragging that he killed people for fun.” Since the prosecutor’s comments were made without objection, the claim is presented as one of ineffective assistance of counsel.

Additional Background

Curiel’s expert testimony addressed the distinction between “high-end-level drug dealers” and “street-level drug dealers.” High-end dealers “traffic usually in kilos or in pounds,” while those at the street level handle smaller quantities, “mainly ounces, half ounces,” and occasionally as much as half pounds. Toward the end of the testimony, on redirect examination, the prosecutor asked, “So, is it pretty rare in—the image I kind of pictured on cross was the Scarface, just piles of drugs, firearms, stacks of cash in a big mansion with surveillance video. Is that kind of a rare drug sales investigation?” The expert replied, “Yes.”

During rebuttal argument, the prosecutor mentioned the above-quoted exchange:

“When I was making this Power Point last night, I remembered asking Officer Curiel about Scarface and how not every single drug sales case is going to look like the guy in the mansion sitting reclined with mountains of cocaine in front of him and bricks [of packaged drugs] behind him. But listening to the defense closing argument right now, I was struck with[,] would he think that was a case involving sales? Because if you look at the images that come up with Scarface, that’s really all you see is the nice house and then lots and lots and lots of drugs. . . . [I]t’s just him sitting back in a chair with tons of drugs, because common sense tells us that the amount, alone, can indicate possession [for] sales. Bricks of cocaine is indicative of sales, right?”

Standard of Review

“A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel’s incompetence.” (People v. Lopez (2008) 42 Cal.4th 960, 966.) To establish a claim of ineffective assistance of counsel, an appellant must show “(1) counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficiencies resulted in prejudice.” (Centeno, supra, 60 Cal.4th at p. 674.)

The standard of review is deferential. (People v. Lucas (1995) 12 Cal.4th 415, 436.) “A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence.” (People v. Gamache (2010) 48 Cal.4th 347, 391.) On direct appeal, we “ ‘will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980.) This burden is not easily satisfied. (Lucas, at p. 437.)

Analysis

Defendant contends his trial attorney should have objected to the prosecutor arguing “facts not in evidence” because, contrary to her statements on rebuttal, she did not actually “ask Officer Curiel about Scarface.” We are not persuaded. It is elementary that questions posed by counsel do not constitute evidence. (CALCRIM No. 222; see Samayoa, supra, 15 Cal.4th at pp. 843–844.) Any misstatements by the prosecutor regarding the nature of her questions to Curiel cannot, as defendant argues, be characterized as “statements of facts not in evidence.” Even if the prosecutor had recited her earlier questions verbatim, she would not have been referring to facts in evidence. Therefore, deficient performance has not been shown.

Next, defendant labels as prosecutorial misconduct the statement, “It’s not Scarface, but it’s close,” which was made in reference to defendant’s ability to convert ounces to grams and his alleged sale of narcotics in those quantities. We disagree. The prosecutor’s reasoning was obviously exaggerated, almost to the point of absurdity. First, defendant’s expression of a quarter of an ounce in terms of grams required only a grade school education and the ability to perform basic arithmetic (1 ounce = 28 grams; 28 ÷ 4 = 7). Second, any juror who had seen Scarface would have known that a street-level dealer who “buys in ounces” and “sells in grams” does not remotely resemble the film’s protagonist.

Even those unfamiliar with Scarface would have understood defendant’s possession of 9.5 grams of methamphetamine, allegedly valued somewhere between $70 and $150, was a far cry from the prosecutor’s description of drug kingpin “with mountains of cocaine,” “piles of drugs, firearms, [and] stacks of cash in a big mansion.” A competent defense attorney could have reasonably concluded the remarks did not warrant an objection. In any event, there is no prejudice because the prosecutor’s argument undoubtedly “would have been recognized by the jurors as an advocate’s hyperbole and would accordingly have been discounted.” (People v. Poggi (1988) 45 Cal.3d 306, 340; see People v. Sandoval (1992) 4 Cal.4th 155, 184 [no reasonable probability the jury would have reached a more favorable result absent objectionable comments that “were clearly recognizable as an advocate’s hyperbole”].)

Cumulative Error

Invoking the cumulative error doctrine (see People v. Hill (1998) 17 Cal.4th 800, 844–847), defendant claims multiple instances of prosecutorial misconduct collectively resulted in prejudice. As we have found only one instance of improper behavior, namely the description of the Corvette as “brand new,” there are not multiple errors to cumulate. Accordingly, and pursuant to the foregoing analyses regarding possible prejudice from other alleged transgressions, we reject the claim of cumulative error.

DISPOSITION

The judgment is affirmed.

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HILL, P.J.

WE CONCUR:

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POOCHIGIAN, J.

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MEEHAN, J.