P. v. Levell

Filed 4/25/07 P. v. Levell CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant Andre Kevin Levell of possession of methamphetamine for sale and possession of drug paraphernalia. On appeal, defendant contends that (1) the trial court abused its discretion by denying his request for a continuance made at the trials end, (2) the prosecutor engaged in misconduct during argument by commenting on his failure to testify (Griffin v. California (1965) 380 U.S. 609 (Griffin)), and (3) the trial court abused its discretion by denying his motion for a new trial based on newly discovered evidence. We disagree and affirm the judgment.

background

Defendants girlfriend, Chanel Henderson, failed a probation-condition drug test. At 11:00 a.m. on January 14, 2005, San Jose Police Officer David Wilson and other officers went to Hendersons residence to arrest her and search the premises. Henderson answered the door, and Officer Wilson detained her outside the door. Officer Wilson learned from Henderson that defendant and two others were inside the residence. From the bottom of a stairway, leading up to bedrooms, Officer Wilson ordered everyone outside. Defendant, defendants niece, Yasmine Wright, and Tracey Lee exited. Defendant told the officers that he had been in the upstairs bathroom when Wright told him that the police were at the door. At some point, the officers placed the group in the living room where defendant told Officer Wilson that the south bedroom belonged to Henderson and him. Officer Wilson searched the south bedroom and observed adult male clothing, a letter from a physician addressed to defendant at the residence address, and cell phones, one having a screen-saver picture displaying defendant and Henderson. He also found 1.66 grams of methamphetamine powder smeared on a table, methamphetamine chunks on the floor, a plastic pipe, a grinder having methamphetamine residue, an electronic scale, and a box of baggies. In the bathroom wastebasket underneath a plastic lining, he discovered a baggie containing 3.5 grams of methamphetamine. He also found in the bathroom a glass pipe having methamphetamine residue. At the police department, defendant told Officer Wilson that he had lived on and off at Hendersons residence since Henderson had become pregnant but did not know anything about drugs in the house. He offered that he sometimes lived with his estranged wife but that Henderson had resumed using drugs during her pregnancy and he went to Hendersons so as to stop Henderson from using drugs.

Defendant offered two witnesses. Defendants wife testified that (1) defendant had spent the night of January 13, 2005, at her home, (2) she saw defendant there on the morning of January 14, and (3) defendant told her that he planned to help Henderson that morning. A friend of Hendersons testified that she (1) believed that defendant did not live at Hendersons home, and (2) had never seen defendant smoke or sell methamphetamine.

Henderson, who was also tried and convicted of the two charges, offered her mother and herself as witnesses. Hendersons mother testified that defendant had once told her outside Hendersons home that he was dealing drugs because he and Henderson could not make it any other way. Henderson testified that (1) she and defendant were at her home using methamphetamine on the evening of June 13, 2005, (2) they fell asleep at 5:00 a.m. the next morning, (3) they awoke when the police arrived, (4) she went downstairs to answer the door, (5) defendant went into the bathroom, (6) the baggie of methamphetamine found in the bathroom wastebasket belonged to defendant, and (7) she had seen that baggie on the bedroom table within a few days before her arrest.

request for continuance

After Henderson rested her case, the following colloquy occurred.

THE COURT: Any rebuttal by the District Attorney?

[The prosecutor]: No, your Honor.

THE COURT: Any rebuttal by [defendant]?

[Defendants counsel]: Actually, your Honor, yes, if we can approach.

THE COURT: No. Call the witness.

[Defendants counsel]: Your Honor, I would ask for a continuance so that I can present some rebuttal witnesses first thing tomorrow morning.

THE COURT: That will be denied.

[Defendants counsel]: Based on the Courts ruling I dont have any further witnesses.

[T]he trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citations.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. [Citations.] When a continuance is sought to secure the attendance of a witness, the defendant must establish he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.] The court considers not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. [Citation.] The trial courts denial of a motion for continuance is reviewed for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)

Defendant argues that the trial court prevented him from showing good cause to justify his request for a continuance by denying his request to approach the bench. He contends that such denied him due process. We disagree.

[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. (Ungar v. Sarafite (1964) 376 U.S. 575, 589.) Instead, [t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge. (Ibid.) Even in a capital case, if the defendant cannot show he or she has been diligent in securing the attendance of witnesses, or that specific witnesses exist who would present material evidence, [g]iven the deference necessarily due a state trial judge in regard to the denial or granting of continuances, the courts ruling denying a continuance does not support a claim of error under the federal Constitution. (People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040.)

Here, though the trial court unquestionably rebuffed defendants request for a sidebar conference, that rebuff did not prevent defendant from justifying his request for a continuance. Indeed, defendant did proffer that the continuance was necessary to produce some rebuttal witnesses first thing tomorrow morning. But this proffer is patently vague. At the very least, it fails to summarize the expected testimony and demonstrate the materiality of that testimony. The trial court could have rationally denied defendants motion on this basis. More importantly, however, the trial court could have rationally concluded that a continuance was unnecessary. Defendants request for a continuance was made at the end of the day for the averred purpose of producing witnesses the next morning. After denying defendants request, the trial court did no more than call a recess until the next morning. Defendant could have simply produced his witnesses the next morning and requested time for rebuttal. He argues now that such a request would have been futile. But this is no more than speculation. The trial court itself commented on this point during the new-trial hearing: Counsel could have made a motion again to reopen, knowing again at that time that they had Ms. Wright there in court. Counsel chose not to do that. Counsel has put forward reasons that they didnt tell the Court, which is they didnt think the Court was going to grant it anyway. Well, you dont know unless you ask. In short, the trial court did not transgress defendants rights to due process.

Griffin

After the trial court instructed the jury, the parties argued the case. The prosecutors theme was that (1) defendant had to admit being in the bathroom when the police ordered him outside because he did not know whether the police knew he was in the bathroom and could not risk an incriminating lie, and (2) defendant had to therefore suggest that he did not live in Hendersons home so as to disassociate himself from the baggie hidden in the bathroom and the implication that he had hidden the baggie, rather than flush the contents down the toilet, because he needed the methamphetamine to sell. Defendants theme was that (1) he was at home with his wife on the evening of June 13, 2005, and went to help Henderson in the morning, (2) he showered while Henderson gathered up the drugs and paraphernalia from the previous nights party so as to hide the drugs from him, (3) Henderson must have hidden the drugs and pipe in the bathroom after the police knocked and while he was outside the bathroom, and (4) he would not have admitted to being in the bathroom had he known drugs were there. The prosecutor then argued the following in rebuttal (defendant relies on the italicized portion).

This is the point: Lets say [defendant] did not possess any drugs for sale and nobody possessed drugs for sale, theyre just a couple of addicts. Okay? Hes on trial for possession for sale. Is he going to--lets put it this way: Will people such as the witnesses who are aware of the facts try to have you totally distanced from her and from all the drugs if all this is is a couple of people getting high? [] What [defendant], if those drugs are possessed for sale--Ill put it this way. Ill be careful how I phrase this. The smart thing to do if youre [defendant] and youre living with Ms. Henderson and all the two of you are doing is getting high, is to say yeah, I lived with her. I hope my wife doesnt find out. I feel really bad, but I lived with her. Yeah, Im the father of the baby, but all the dope was hers. She was just getting high all the time, and I kept trying to talk her out of it, I kept trying to talk her out of this. [] I knew the drugs were there. I didnt possess it illegally. It was in the same room with me, but I spent the whole time trying to get her off drugs but yeah, you know, I knew the drugs were there, and I did a lot of really bad things, but Im not guilty of either the felony of possession for sale, because no one was possessing them for sale, and Im not guilty of possession of the drugs. Those are her drugs. She wasnt selling. Shes never sold in her life, but they werent my drugs. [] Why havent you heard that defense, which is a much stronger defense than saying I didnt live there, its not my baby. [At this point defendants counsel objected on the ground of prosecutorial error, the prosecutor withdrew the last comment, and the trial court overruled the objection.] It sounds like Im going somewhere where I shouldnt go, and it was reasonable to think Im going somewhere thats improper argument, so I better state my point now to show where Im going. [] [Defendant] knows those drugs are possessed for sale, and he knows theres plenty of evidence if those drugs in that room are possessed for sale--Im sorry, if hes connected to the drugs in that room, hes connected to drugs that are possessed for sale. [] Because if those drugs are there for personal use, its easy for him to distance himself from it without going way out on a limb with the defense that I wasnt--I didnt live there, I didnt know anything about the bedroom. Thats a defense where we know theres going to be evidence that thats not true and that hes lying. [] Now, why take such a big risk and say I have no connection with any of this, all these witnesses are lying. The mother is lying, [Henderson] is lying. The officer is wrong. This kind of stuff. Is because [defendant], being an experienced seller of drugs, knows that the evidence in that room adds up to possession for sale. [] Thats why hes distancing himself from that entire room, because he knows whats in that room is narcotics possessed for sale. If in his mind whats in that room is narcotics possessed for personal use, I submit to you that its very easy for witnesses to say [defendant] didnt use but she used. [] But its obvious that the drugs in that room were possessed for sale, and thats where [defendant] has to distance himself entirely from the drugs. And the only way he can do that is say thats not my room, I dont live there. [] I again submit to you the evidence is true that his wife already knew this stuff, and hes on trial for this now, so if he didnt want his wife to find out, would his friend come in and--[Hendersons friend] said he didnt live there. Why does [Hendersons friend] lie and say he doesnt live there? Because if he does live there, hes guilty of possession for sale. [] If he lives with someone that uses, does that make him guilty? No. But if he lives in a room where someone is selling out of that room, its got to be him, him and her, maybe, but its going to be him. [] I dont even know if my point made sense, but the point is that distancing himself from that room is because he knows that room adds up to possession for sale.

Defendant argues that the prosecutors statements in rebuttal argument, highlighted above, violated his right against self-incrimination because they called attention to his failure to testify since they commented on facts to which only [he] could have testified. Defendants analysis is erroneous.

The doctrine of Griffin error bars the prosecutor from arguing that the jury should draw an inference adverse to the defendant because he did not testify at trial in legitimate reliance on his Fifth Amendment privilege against self-incrimination. (Griffin, supra, 380 U.S. at p. 615.) However, [a] prosecutor may fairly comment on the state of the evidence, including a nontestifying defendants failure to proffer material evidence or witnesses to rebut the Peoples case. Such comment crosses the Griffin line only if the defendant alone could have given such evidence. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.) So may a prosecutor make comments in rebuttal that are fairly responsive to defense counsels argument and are based on the record. (People v. Daya (1994) 29 Cal.App.4th 697, 715.) And comments by a prosecutor that the defendant failed to provide a rational explanation for the prosecutions evidence or theory of guilt do not constitute Griffin error. (People v. Medina (1995) 11 Cal.4th 694, 755-756.) We apply a reasonable likelihood standard for reviewing prosecutorial remarks, inquiring whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question. (People v. Roybal (1998) 19 Cal.4th 481, 514.)

Here, defendants argument asked the jury to accept the evidence supporting that defendant lived with his wife and simply went to Hendersons to help her with a drug habit--the theory being that defendant was not associated with the drugs in Hendersons home. In rebuttal, the prosecutor urged the jury to disbelieve that evidence because the overwhelming evidence, which included defendants police admission, was to the contrary--the theory being that defendant was associated with the drugs in Hendersons home. To support that defendants evidence was unbelievable and theory was untenable, the prosecutor simply explained that defendant could not have relied on the overwhelming evidence (defendant lived with Henderson) to embrace a tenable theory (Henderson possessed the drugs for her--or their--use) because that would associate himself with the drugs and mean a certain conviction for selling. In this context, the remarks to which defendant objects (the smart thing to do . . . is to say . . .) refer to defendants failure to argue a theory presented by the facts rather than testify about facts. There is no reasonable likelihood that the jurors understood the remarks to refer to defendants failure to testify.

motion for new trial

Defendant based his motion for a new trial on the declarations of his counsel and Wright.

Counsel declared that (1) he had informed the trial court during trial that he had been searching for Wright, and the trial court informed him that he could call Wright so long as the evidence portion of the trial had not concluded, (2) the trial court had informed the parties that jury deliberations must begin by Friday, December 16, 2005, because it had vacation leave thereafter, (3) he located Wrights residence on the afternoon of December 15, and believed he could serve Wright with a subpoena, (4) at 4:30 p.m. on Thursday, December 15, he tried to explain the situation to the trial court at a sidebar conference and then unsuccessfully requested a continuance, (5) he believed that Wright would refute Henderson, (6) Wright attended the trial on December 16 and would have testified if allowed by the Court, and (7) he took Wrights statement on December 23.

Wright declared that (1) she appeared at trial on December 16, 2005, but defendants counsel told her that the trial court had refused to allow him to call her because she had not been present the day before, (2) she was at Hendersons home on the evening before the arrest burned out from using drugs, (3) she loaned her methamphetamine pipe to Henderson for Hendersons use with friends, (4) defendant was not at the home, (5) defendant arrived the next morning, (6) defendant was in the bathroom when the police arrived, (7) when she announced that the police had arrived, defendant exited the bathroom and went downstairs, she followed defendant downstairs, and Henderson remained upstairs, and (8) Henderson was the last person to come downstairs and only then did Henderson open the door for the police.

In denying the motion, the trial court observed that defendant had no witnesses when it asked for rebuttal on Thursday, December 15, 2005, and did not ask to reopen for a witness on Friday, December 16. It then articulated the following: [Wrights] [a]ffidavit does not tell me [when Wright was there the night before] that it was the early evening, late evening, all of the above, whether it carried on in the morning hours. [] If I recall the testimony Ms. Henderson went to sleep. Did Ms. Wright go to sleep there? Doesnt tell me that. Was she so burned out on drugs she passed out? Doesnt tell me that. If she passed out on drugs, if she fell asleep, if she--who knows what happened? Who knows if she had the ability to know what happened that night with respect to [defendant] either being in the house or not being in the house if she had used so much drugs. [] Its pretty clear from Ms. Henderson that she used a lot of methamphetamine that night. Quite frankly, even if Ms. Wright had used drugs with Ms. Henderson, if that is a fact, that doesnt preclude the fact that Ms. Henderson also was using drugs with [defendant] at some other point. [] She says in eleven: [Defendant] was not at Mr. [sic] Hendersons house that night before she was arrested. How does she know that? How is she able to know that unless she was awake all night to see that [defendant] was at the house? Doesnt tell me she was. It tells me she was using drugs with Henderson at some point that evening and burned out. [] . . . [] Most importantly, Ms. Wright was not in the bathroom when [defendant] was in the bathroom. Drugs and paraphernalia were found by the police in plain view in the other part of the home. [] And I think an incredibly important piece of evidence for this jury, and I cant stress this enough, while other things were found laying around the house--the powder on the table, the pipe, all of that, the big bindle of drugs, one that substantially went to, I would infer, the jurys reasoning that drugs were possessed for sale, the biggest bindle was in the bathroom where [defendant] was, secreted between--in the waste can between the liner and the can itself. That, quite frankly, is a damning piece of evidence. [] Given the substance of this affidavit and the things Ive mentioned, in my opinion, even if the Court did err in having the defense produce their witness on Thursday or resting, even if the Court did err, the other point Ive made, defense had an opportunity at 9:00 to tell me Ms. Wright was there and did not. They chose not to. [] But perhaps most importantly, as [the prosecutor] suggested in his responsive papers, I dont believe it would have made any difference, given the relationship that Im hearing that she had to [defendant], to wit, his niece, the fact she was a burned-out drug user, and the scarcity of the affidavit that would assist in [defendants] defense, if its true as to the averments in here.

To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial. (People v. Ochoa (1998) 19 Cal.4th 353, 473.) In other words, newly discovered evidence for purposes of new trial motions is evidence material to the question of guilt of the defendant. (People v. Smink (1930) 105 Cal.App. 784, 789.) [T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable. (People v. Delgado (1993) 5 Cal.4th 312, 329.)

In upholding the denial of a motion for new trial grounded upon juror misconduct, the Supreme Court explained: As Witkin has observed, The trial judge is familiar with the evidence, witnesses and proceedings, and is in the best position to determine whether, in view of all the circumstances, justice demands a retrial. [Citation.] Since the affidavits and oral testimony present questions of fact for the trial court, we do not disturb the findings of that court in the absence of a showing of a clear abuse of discretion. (Bardessono v. Michels (1970) 3 Cal.3d 780, 795.)

When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. (Ibid.) This rule requires that the reviewing court engage in all intendments and presumptions in support of the decision and consider the evidence in a light most favorable to the prevailing party. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) It also requires that the party claiming abuse of discretion affirmatively establish the point. (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.)

The newly discovered evidence in this case consisted of Wrights testimony. The import of this evidence, according to defendant, would be to contradict Hendersons version of events in the sense that Wright could have testified to the fact [defendant] was not present in the townhouse and could have testified to Henderson being the last one to leave the upper floor where all of the drugs and paraphernalia were found.

Defendant plainly fails to demonstrate an abuse of discretion.

First, contradictory evidence is material to the question of guilt when the newly discovered evidence contradicts the strongest evidence introduced against the defendant. (People v. Delgado, supra, 5 Cal.4th 312, 329.) Here, the strongest evidence introduced against defendant was the evidence that linked him to the drugs, i.e., defendants own admission that he lived with Henderson and the documentary evidence corroborating that admission. Wrights testimony does not contradict that defendant admitted residing with Henderson. (See, e.g., People v. Dyer (1988) 45 Cal.3d 26, 51 [defendants own trial testimony contradicted the declarations which formed the basis of his new trial motion].)

And second, the trial court made clear that its conclusion as to defendants prospects in a new trial rested upon its view that Wright was hopelessly vague about what occurred, admittedly oblivious from drugs during what occurred, and utterly unbelievable due to her familial relationship with defendant. (See, e.g., People v. Cole (1979) 94 Cal.App.3d 854, 860, disapproved on another ground in In re Kelly (1983) 33 Cal.3d 267, 277 [trial court concluded that new trial affiant had zero credibility].) In short, it is rational to conclude that a different result at a new trial would not be reasonably probable were an unbelievable witness to give vague testimony about events secondary to what incriminated defendant.

Defendants fallback argument is that trial counsel was ineffective because counsel failed to get Wright onto the witness stand. Ineffective assistance of counsel for failure to call a witness requires that the witnesss testimony be material. (People v. Hill (1969) 70 Cal.2d 678, 690.) Our previous point that Wrights evidence was not material for purposes of a new trial is therefore dispositive for purposes of ineffective assistance of counsel.

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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