Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050307603
RIVERA, J.
Fernando Edward Gamez appeals from a judgment upon a jury verdict finding him guilty of possession for sale of methamphetamine (Health & Saf. Code, § 11378 (count 1)), possession of a controlled substance (id., § 11377 (count 2)), and possession of a smoking device (id., § 11364 (count 3)). In a bifurcated proceeding, the court found true the allegations that defendant suffered a strike conviction, served two prior prison terms, suffered a prior controlled substance conviction, and was ineligible for probation (Pen. Code, §§ 1170.12, 667.5, subd. (b); Health & Saf. Code, § 11370.2, subd. (c); Pen. Code, § 1203.07, subd. (a)(11)). Defendant contends that the court: (1) erred in allowing the prosecution to withdraw a plea bargain offer upon which he had detrimentally relied, (2) abused its discretion in denying his motion for a continuance of the trial, (3) erred in excluding an out-of-court statement, and (4) committed sentencing error. He also argues that the prosecutor committed misconduct in her argument to the jury. We affirm.
I. FACTS
At approximately 7:00 p.m. on October 2, 2002, Sergeant Chris Simmons and other officers executed a search warrant at 447 Winslow Street in Crockett. The police searched the house and found a baggie containing over 16 grams of methamphetamine in plain view on the top of a cabinet in the hallway near the top of the stairway. In a bedroom to the left of the stairwell, they found a shoebox at the foot of the bed. The box was labeled, “women’s seven and a half.” It contained several baggies filled with methamphetamine ranging from.12 of a gram to 5.58 grams.
The shoebox also contained a scale that was the type used by sellers of methamphetamine, a notebook with pay-owe sheets recording names and amounts of drugs sold, and an AT&T bill and a child support document in defendant’s name. One page in the notebook referred to transactions relating to car parts; Simmons testified it was a common practice in the drug trade to use a euphemism to make it appear that the transactions are not drug sales. In addition, the box contained a yellow plate and spoon, both with some drug residue on them, and an empty box of Glad sandwich bags typically used for the dissemination of drugs.
As Simmons proceeded with the search, defendant and Teresa Brookshier arrived at the house. Simmons searched defendant and found that he had $705 in cash—three $100 bills, twenty $20 bills and five $1 bills. Simmons read defendant his Miranda rights. Defendant told Simmons that he understood his rights and agreed to talk. Defendant indicated that he lived in the house and initially denied that he knew anything about any drugs found there. When admonished by Simmons to be honest, however, he said, “They [the drugs] have to be mine. There, you got what you wanted.” Defendant also told Simmons that he “slings ice” which Simmons testified was a slang term for selling methamphetamine. Defendant also told Simmons that he and Mike DeCarlo sold methamphetamine in the Crockett area. Defendant said that he sold drugs to “get by,” and that he did not know how much of the money he had in his possession was from drug sales because he did not keep track of it that way.
Simmons searched Brookshier and found that she had two baggies of a substance that appeared to be methamphetamine. Simmons arrested Brookshier for possession of methamphetamine.
On January 8, 2003, Simmons and other officers executed a second search warrant on defendant’s house. Defendant did not respond to the door, so the officers forced entry. Upon entering, they saw defendant at the top of the stairwell. Defendant was detained. Simmons searched the house and found a police scanner in the living room. He also noticed a Ziploc baggie containing 1.83 grams of methamphetamine and a pipe used for smoking methamphetamine on top of a table next to the couch. Simmons found a letter addressed to defendant from child support services near the scanner. Defendant’s California identification card was found in one of the bedrooms.
Simmons opined that the methamphetamine found during the first search was possessed for sale. The methamphetamine found during the second search, however, was more indicative of personal use.
Simmons further testified that after the first search he received a telephone call from Brookshier. During the call, defendant was also on the line and Simmons spoke to him as well.
II. DISCUSSION
A. Plea Bargain
Defendant contends that the court erred in allowing the prosecution to withdraw a plea bargain upon which he had detrimentally relied. We conclude that the record fails to support defendant’s argument.
While the record indicates that the prosecutor offered a plea bargain, the offer was tendered in 2004, not 2008. On September 1, 2004, the court, outside the presence of the prosecutor, who agreed to be absent, discussed the prosecutor’s offer—a four-year prison term and dismissal of the “strike” in exchange for defendant’s guilty plea—with defendant and his counsel. Defendant did not accept the offer. Defense counsel claimed that the offer was not accepted because defendant was hospitalized pursuant to Welfare and Institutions Code section 5150, and that he was subsequently in and out of hospitals.
Welfare and Institutions Code section 5150 provides that a peace officer may take a person, who as a result of a mental disorder is a danger to others or himself, into custody and place him in a facility designated by the county for a 72-hour treatment and evaluation.
Yet, assuming defendant was committed under Welfare and Institutions Code section 5150 for 72 hours, there is nothing in the record to establish that defendant was hospitalized beyond that period nor is there anything in the record indicating that he was committed for any length of time. Rather, the record shows that defendant failed to appear on September 2, 2004, and a bench warrant issued. Defendant was not apprehended until June 2007 when he was arrested in another case in Richmond. Hence, for almost three years, whether defendant was in and out of hospitals as claimed by defense counsel, he nonetheless absconded.
In 2008, the prosecutor’s offer was to plead as charged with no offer as to time in prison. Prior to trial, however, the court offered defendant a plea agreement of four years but was not willing to dismiss the strike allegation, thus limiting defendant’s conduct credits to 20 percent under Penal Code section 1170.12, subdivision (a)(5). Defendant refused the offer, insisting that he wanted the four years previously offered and that the prosecutor had agreed to the offer subject to looking at the Richmond case to determine whether she could offer a global resolution. The prosecutor, however, never made a global offer.
Defendant’s claim on appeal that he had accepted the 2004 offer is not supported by the record. Nor does the record support defendant’s claim that the prosecutor offered defendant the same deal in 2008. To the contrary, the record shows that the prosecutor contemplated a deal but did not offer one, presumably due to the new charge in Richmond or the fact that defendant absconded for several years. There is nothing in the record to support defendant’s claim that the court permitted the prosecution to withdraw from the plea bargain since there was never an agreement between the parties.
People v. Rhoden (1999) 75 Cal.App.4th 1346 is instructive. There, the court held that a prosecutor can withdraw from a plea bargain before a defendant pleads guilty with court approval or otherwise detrimentally relies on the bargain. (Id. at p. 1352.) “ ‘[W]here the People have withdrawn from negotiations before the defendant has pleaded guilty and waived his constitutional rights, the court has no authority to impose over the People’s objection an earlier bargaining position.’ ” (Id. at p. 1352, quoting People v. Anderson (1982) 129 Cal.App.3d 491, 495, italics omitted.) In Rhoden, the parties agreed to a plea bargain on the morning of the second day of trial but before it was submitted to the court for approval that afternoon, the prosecution informed the trial court that it was withdrawing the offer in light of the court’s ruling on the scope of the cross-examination of a prosecution witness. (Rhoden, supra, 75 Cal.App.4th at p. 1349.) The Rhoden court held that the prosecutor could withdraw from the plea bargain because the defendant had not yet pled guilty. (Id. at pp. 1353-1354.) The court further determined that the defendant had not detrimentally relied on the plea bargain. “Rhoden did not plead guilty, partially perform the plea bargain, provide any information or other benefit to the government based on the plea bargain, or otherwise detrimentally rely on the plea bargain.” (Id. at p. 1355.) The court noted that detrimental reliance is not demonstrated by simply the passage of time or the defendant’s failure to prepare a defense, absent a showing of prejudice. (Ibid.)
Rhoden is dispositive of defendant’s claim here. The record establishes that the prosecutor did not in fact offer a plea bargain to defendant in 2008. While one was initially contemplated during pretrial proceedings, the prosecutor never committed to the offer. Hence, this is not a case, as defendant posits, where the prosecutor withdrew from a plea bargain, but rather one where the prosecutor ceased negotiations with the defendant before trial. There was no bargain for the court to enforce.
Even if there had been an agreement, defendant failed to demonstrate that he detrimentally relied on it. Although defendant argues that he did not have sufficient time to locate Brookshier as a witness, he cannot show any prejudice.
Defendant argues that Brookshier would have testified that the drugs found in defendant’s house belonged to her. His argument is based on Simmons’s testimony during an Evidence Code section 402 hearing. In that hearing, Simmons testified that he received a telephone call on October 10, 2002, from a person who identified herself as Brookshier. He testified that he was fairly certain that the person on the phone was Brookshier. Brookshier told Simmons that defendant was in the room with her. At times Simmons could hear defendant in the background. Brookshier told him that the drugs he found in defendant’s house belonged to her. Simmons asked her some questions about the shoe box and Brookshier said the box was on the bed and that something for defendant’s dog was in the box. Simmons testified that the box was at the foot of the bed and that there was nothing in the box relating to a dog. Brookshier did not know why defendant’s mail was in the box and then said that she placed the mail there. She also said that defendant wanted his money back. Simmons explained the asset forfeiture procedures to her. Defendant became irate and told Simmons that he was lying and used some expletives. The court excluded the evidence because there was no showing that Brookshier was unavailable and defendant had not exercised due diligence to locate her. Further, the court found that the circumstances of the statement did not indicate its trustworthiness inasmuch as defendant was overheard in the background, and it appeared he was exerting pressure over Brookshier to admit liability and when it seemed not to work, defendant became angry and upset.
Not only did defendant fail to exercise due diligence in locating Brookshier for trial, he also failed to demonstrate how her testimony would have been of any benefit to him. As the trial court found, her statements to Simmons lacked credibility, particularly given that defendant was with her when she made the call, it appeared that she was under pressure to admit that the drugs belonged to her, and her description of the contents and location of the box were not accurate. Moreover, the evidence against defendant at trial was overwhelming. He admitted to Simmons that he sold methamphetamine in the Crockett area and that the drugs found in the house belonged to him. In sum, defendant failed to show that he detrimentally relied on the plea bargain by failing to secure Brookshier as a witness for his defense. (See People v. McClaurin (2006) 137 Cal.App.4th 241, 249-250 [detrimental reliance on plea bargain not demonstrated where defendants waived time and agreed to continue the preliminary hearing for 28 days].)
B. Motion for a Continuance
Defendant also contends that the trial court abused its discretion in denying his motion for a continuance. We conclude that this contention has no merit.
On the date set for trial, defense counsel moved for a continuance, arguing that he had not prepared for trial based on assurances by the prosecutor that there would be a plea bargain. Consequently, when he learned the previous day that there was no agreement, he attempted to locate three defense witnesses for the trial but was unsuccessful. He claimed that Pete Contestable would testify as to the location of certain items at defendant’s house, that Brookshier would testify that the drugs in the house were hers, and that Michelle Jensen, who lived at the house, was a percipient witness as to the home’s content. Defense counsel therefore sought a continuance contending that he had not earlier made attempts to secure these witnesses because he did not think the case was going to trial based on his negotiations with the prosecutor. The court denied the motion.
“ ‘ “The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the discretion of the trial judge who must consider 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.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 840.)
No abuse of discretion appears. The trial date had been set for two and a half months and the case had been pending for over five years. Moreover, defendant had been represented by the same defense counsel since April 2004. Although defense counsel claimed that he did not prepare for trial because he assumed that the case would resolve before the trial date, it was incumbent upon him to subpoena and prepare for trial when no plea agreement was forthcoming from the prosecutor. Further, the fact that defendant absconded for several years and that he had another case pending in Richmond should have put defendant on notice that the prosecutor might not be willing to resolve the case on the same terms as in 2004. That the Richmond case was pending appears to have been a factor the prosecutor considered in determining whether the case could be resolved. Finally, defendant cannot claim prejudice due to his inability to secure Brookshier to testify. Defense counsel himself effectively abandoned his request for a continuance in order to locate Brookshier once the court ruled that Simmons’s testimony about Brookshier’s purported admission would not be allowed into evidence. On this record, we discern no error in the denial of defendant’s request for a continuance.
C. Exclusion of Brookshier’s Statements
Defendant sought to offer Brookshier’s admission to Simmons as a declaration against interest under Evidence Code section 1230. The trial court did not abuse its discretion in excluding the evidence.
“A party who maintains that an out-of-court statement is admissible under [Evidence Code section 1230] as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Cudjo (1993) 6 Cal.4th 585, 607.)
Here, the trial court found that it had no evidence that Brookshier was unavailable and that defendant had not exercised due diligence in finding her in that he only attempted to locate her two days earlier that week. The court remarked that declarations against interest in which a third person admits guilt for the offense are to be looked upon with suspicion. The court concluded that the circumstances of Brookshier’s statements did not demonstrate trustworthiness, noting that the call was made “when the defendant is clearly partnering this conversation both in terms of being overheard in the background and then actually coming on the phone in a very excited, upset and I guess profane state.... [It] certainly sounds like some pressure [was] being put on her to get him off the hook on these things, and when it isn’t working he gets mad and upset. And... the pressure from that kind of conversation I think has to do with the trustworthiness.”
The court properly excluded Brookshier’s statement as untrustworthy. “The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” (People v. Frierson (1991) 53 Cal.3d 730, 745.) Here, the circumstances demonstrated that Brookshier was under pressure from defendant to admit the drugs were hers, and that she was not familiar with the inculpatory evidence. Not only did she not know where the shoebox was located, she did not know what items were found in the box. She also asked questions prompted by defendant, in particular asking how defendant could secure the return of money that was seized. When Simmons explained the asset forfeiture procedures, defendant became upset, and angrily got on the phone and uttered expletives at Simmons. These facts tended to show that Brookshier only took responsibility for the offense at defendant’s behest. Given these circumstances, the court did not abuse its discretion in concluding that the statement lacked sufficient indicia of trustworthiness for admission.
D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during closing argument by (1) mentioning that the defense had failed to call Brookshier to testify, and (2) commenting on defense counsel’s argument that reasonable doubt was “nagging doubt.” Neither of the prosecutor’s remarks amounted to misconduct.
“ ‘ “[A] prosecutor commits misconduct by the use of deceptive or reprehensible methods to persuade either the court or the jury.” [Citation.]’ ” (People v. Alvarez (1996) 14 Cal.4th 155, 213.) Where, as here, the challenge is to the prosecutor’s comments during her argument to the jury, “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion [Citation].’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 1001.)
Here, defendant claims that the prosecutor’s remarks concerning his failure to call Brookshier to testify constituted misconduct. In her argument, the prosecutor rebutted defense counsel’s argument that she had failed to present the testimony of other officers to corroborate Simmons by arguing that while it was the People’s burden to prove the case, “the defense has exactly the same subpoena power that the D.A. does. Exact same. You want to subpoena Teresa Brookshier? Go ahead.” The court overruled defendant’s objection to the prosecutor’s argument.
Defendant acknowledges that it is permissible for the prosecutor to comment on the failure of the defense to call logical witnesses. (People v. Ford (1988) 45 Cal.3d 431, 447.) He argues, however, that it was improper for the prosecutor to comment on Brookshier’s failure to testify when she knew that defense counsel had been unsuccessful in locating her. While the Ford court recognized that it is improper for the prosecutor to comment on a defendant’s failure to call a witness when the prosecutor is aware that the defendant cannot locate the witness (People v. Frohner (1976) 65 Cal.App.3d 94, 108-109), it noted that no misconduct is shown when the defendant fails to show a witness’s unavailability. (Ford, supra, 45 Cal.3dat p. 445.) When a defendant has made no showing that a witness could not be located or was not otherwise unavailable, a prosecutor may invite the jury to speculate that the defendant’s failure to call the witness reflects recognition that the testimony would be unfavorable to the defense. “An invitation by the prosecutor to speculate that the failure to call them as witnesses was because their testimony would not corroborate that of defendant was not conduct which would mislead the jury as to the reason that they were not called, and would not impinge on the exercise of a privilege by either defendant or the codefendants.” (Ibid.)
Here, as in Ford, defendant failed to demonstrate that Brookshier was unavailable. Although defense counsel was unable to locate her during the week of trial, the case was pending for several years and the trial date had been set for two and a half months, providing ample time for defendant to make attempts to locate her. The evidence supports the court’s finding that defendant failed to show Brookshier’s unavailability.
Defendant’s second assignment of prosecutor misconduct concerns the prosecutor’s comment on defense counsel’s argument regarding reasonable doubt. Defense counsel argued that “some people have described reasonable doubt as nagging doubt, so if you look at all the evidence and you wind up thinking, you know, that piece of evidence really nags at me, then you have reasonable doubt.” The prosecutor objected that defense counsel had misstated the law. The court then admonished the jury, “I think the law is as I gave it to you, ladies and gentlemen. Counsel may argue inferences from it, but the law is proved to an abiding conviction, I’m sure you all know.” Defense counsel then continued with his argument stating, “[s]omething nags at you, you may not have an abiding conviction of the truth of the charge....”
In rebuttal, the prosecutor argued, “the defense talks about the burden of proof, right? And what he wants is he wants you to somehow not follow the law and to get this idea about—” Defense counsel objected. The court overruled the objection noting, “[t]his is characterizing argument. You may do that.... The prosecutor went on to argue that “nagging” was not part of the law of reasonable doubt.
The prosecutor’s argument did not constitute misconduct. Her argument did not disparage defense counsel, and the court immediately explained to the jury that the prosecutor’s remarks were simply characterizing defense counsel’s argument. Moreover, the court, when the question of defense counsel’s interpretation of the reasonable doubt instruction arose during argument, immediately explained to the jury that it had given the jury the law it must follow and that counsel could argue inferences from it. Any error was thus cured by the court’s admonition.
E. Health & Safety Code Section 11370.2 Enhancement
Defendant contends that the trial court erred in imposing the Health & Safety Code section 11370.2, subdivision (c) enhancement because its comments reflect that it believed it had no discretion to strike it under Penal Code section 1385.
Health & Safety Code section 11370.2, subdivision (c) provides in pertinent part that “[a]ny person convicted of a violation of... Section 11378 or 11379 with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of subdivision (d) of Section 11055 shall receive, in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code, a full, separate, and consecutive three-year term for each prior felony conviction of, or for each prior felony conviction of conspiracy to violate, Section... 11378,... whether or not the prior conviction resulted in a term of imprisonment.”
In People v. McCray (2006) 144 Cal.App.4th 258, 267, the court held that while a sentencing court does not have authority to stay an enhancement under Health and Safety Code section 11370.2, it does have the discretion to strike the enhancements under Penal Code section 1385. Here, the trial court’s remarks at sentencing are ambiguous as to whether or not the court understood that it had the discretion to strike the Health and Safety Code section 11370.2 enhancement. Although the court struck the prior conviction alleged under Penal Code section 1170.12, it remarked that in doing so there were sentencing options available to it to “satisfy society’s needs.”
After striking the prior conviction pursuant to Penal Code section 1385, the court invited defense counsel to make his sentencing recommendation. The following colloquy occurred: “[Defense Counsel]:... I would like the Court obviously to give him four years at half [50 percent conduct credits]. [¶] The way to get there—well, there [are] a couple ways. Some courts think that they cannot stay the 11370.2. I don’t know what this Court— [¶] [The Court]: And that does what? [¶] [Defense Counsel]: Some courts say 11370.2—some courts think you can’t do it. [¶] [The Court]: I have no case law that I have ever found that says I can— [¶] [Defense Counsel]: Stay it? [¶] [The Court]: —when the statute says do it. [¶] [Defense Counsel]: So what I would ask this Court to do is give him the low term on the 11370 (a) for 16 months, impose the 11370.2 for three years for an aggregate term of four years four months, and then stay the 667.5(b) prison priors. That’s my position....”
In imposing sentence, the court found that the aggravating factors balanced out the mitigating factors so that it imposed the midterm of two years on count 1 and a concurrent midterm of two years on count 2. It then stated, “I feel that I must impose the 11370.2(a), which is as far as the two 667.5’s are concerned—I’m going to do this: The second 667.5, 11378, is based on—was the five years—sorry. Let me back up again. That was an 11378, and I have used it for the 11370.2, so I choose to use it again to add a year. So I’ll call it the second 667.5, I will strike under 1385 of the Penal Code in the interest of justice as it seems to me it’s a double use of that prior. I’ve already used it for the 11370.2. [¶] However, the 667.5 that has to do with the—by the first degree burglary conviction succeeded to the 1201.1 conviction, I see no valid ground to strike that. And accordingly, I will add the one year for that. [¶] So the—so the sentence in this matter is going to be a total of six years against which the defendant will receive 197 actual days of credit and 98 good time days.”
The record demonstrates that the court appears to have misunderstood whether it had discretion to strike the section Health and Safety Code 11370.2, subdivision (c) enhancement as it suggests that the court believed it was mandated by statute to impose the enhancement. The court’s remarks, however, make clear that it would not have exercised its discretion to strike the enhancement. In particular, the court indicated that it wished to impose a certain term to protect society, and it rejected defense counsel’s proposal of four years four months. In exercising its discretion to strike the “strike” prior, the court expressly stated that it was doing so cognizant of the fact that there were sentencing options open to it to “satisfy society’s needs.” Given the court’s remarks and its imposition of a six-year prison term, a term significantly less than defendant’s sentencing exposure, it is not reasonably probable that it would have stricken the enhancement had it known it could. (People v. Avalos (1984) 37 Cal.3d 216, 233.) In light of our disposition, defendant’s argument concerning restitution and revocation fines is moot.
The judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.