Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County Nos. LBF12935 & LBF14114. Roger Wayne, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
Defendant, Juan Ignacio Lopez, was convicted after a jury trial of one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) with an enhancement for having a prior conviction for the same offense (§ 11370.2, subd. (a)), and the court found he violated probation. He was sentenced to six years with an additional eight-month term for violating probation in his previous felony case.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On appeal, defendant contends the court improperly instructed the jury with CALCRIM No. 361 as to the defendant’s failure at trial to explain or deny evidence against him. He also contends the prosecutor committed prejudicial misconduct during her examination of the arresting officer, cross-examination of defendant, and closing argument, and defense counsel was prejudicially ineffective for failing to object. We will affirm.
FACTS
On the evening of May 14, 2007, Los Banos Police Officer Cortez was on foot patrol in an area known for frequent drug activity. He was walking toward the front yard of a duplex and encountered Francisco Monroy on the street. Monroy shouted in Spanish that Cortez was approaching. Cortez kept walking toward the duplex and saw defendant standing inside the front yard fence. Cortez knew defendant from prior contacts, and he had arrested defendant for methamphetamine sales in November 2005 when he found defendant in possession of individually-wrapped bindles of methamphetamine.
The court granted the prosecution’s request and took judicial notice that defendant had a prior conviction for the sale of methamphetamine.
Officer Cortez testified that as he approached the front yard, defendant’s back was toward him and defendant was bending over “like he was attempting to conceal something.” When defendant saw Cortez, he straightened up and walked to the officer. Cortez asked defendant if he could search his person and defendant consented. Cortez found defendant in possession of a cell phone and $740. The cash included seventeen $20 bills.
After searching defendant, Officer Cortez walked to the area of the yard where defendant had been bending over. Cortez found a plastic bag which contained 12 individually wrapped baggies of methamphetamine. Each baggie weighed approximately.33 to.36 grams and could be sold on the street for $20 each, for a total street value of $240. Cortez testified that as soon as he found the narcotics, defendant “voluntarily” and “immediately” said “he was selling drugs because he had a lot of bills and court fees.”
Defendant was arrested and transported to the police department. Cortez advised defendant of his constitutional rights, defendant waived his rights, and Cortez conducted a tape-recorded interview. Cortez asked defendant “if he had told me that he was selling narcotics to pay his bills and court fees, and he stated no.” Defendant told Cortez he never made that statement and denied he was selling drugs. Defendant said the cash was from working in the fields.
Defense evidence
Defendant testified at trial and admitted he previously pleaded guilty to possession of drugs and possession of drugs for sale. Defendant testified he was a farm labor foreman, and he also earned money by driving laborers to work. He drove six people to the fields “all over” the county on a daily basis, and they paid him $7 for gasoline. Defendant testified he had $740 because he had recently been paid for both jobs.
Defendant testified that he had been walking in the area and stopped in the front yard to urinate and told Cortez what he was doing. After Cortez searched him and found the cash, defendant asked Cortez “if he would take my money again because the other time he took away $2000 from me, and it was never returned to me.” Defendant testified he never told Cortez that he was selling drugs. Defendant testified that when Cortez conducted the tape-recorded interview, defendant told him to turn off the tape-recorder “because the other time he had recorded me, and I was not selling anything, and I had told him that I had given it away to someone else, and he said that was sales.”
On cross-examination, defendant was asked to identify his employers:
“Q. Who were you working for?
“A. I worked with a man whose name was—I don’t recall his name, but I have it on my check stubs. It’s a farm labor contractor.
“Q. And you don’t recall his name?
“A. Because I wouldn’t speak with him. It was the other gentleman that would talk to me. What’s his name? I don’t recall the name.”
Defendant had worked for that person over one year but he was not sure how many checks he received from that person. On further questioning, defendant testified he spoke to “Benjamin” about his job, but he did not know the man’s last name or telephone number. Defendant testified “Benjamin” and “Nora” would tell him where to work, but he was unable to provide their last names and thought one person’s name might be “Torres.” Defendant could not identify any ranches where he worked or drove the farm laborers and said there were “a lot of ranches.”
Also on cross-examination, defendant acknowledged that Officer Cortez previously arrested him for selling drugs but denied telling Cortez that he was selling drugs at that time. Defendant again claimed Cortez seized $2,000 from him during the earlier arrest, he insisted the cash was from work, and he denied the money was forfeited as drug proceeds. As for the money in this case, defendant testified he had cashed paychecks for $460, he received the balance in cash from the farm laborers he drove to work, and laborers primarily paid him in $20 bills.
Rebuttal
Officer Cortez testified that he previously arrested defendant for selling drugs at the same location where he arrested him in this case. Cortez was “100 percent positive” that when he arrested defendant in this case, defendant said he was selling drugs to pay his bills.
DISCUSSION
I. CALCRIM No. 361
Defendant raises several challenges to CALCRIM No. 361, which, as given to the jury in this case, stated:
“If the defendant failed in his testimony to explain or deny evidence against him and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
While defendant did not object to CALCRIM No. 361, a claim of instructional error in giving this instruction is subject to independent review on appeal. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066 (Rodriguez).)
Defendant contends CALCRIM No. 361 violates his constitutional right to due process because it singles out a defendant’s testimony for treatment markedly different from that of other witnesses. CALCRIM No. 361 is similar in content to former CALJIC No. 2.62, and both instructions have overcome the same constitutional and due process challenges which defendant raises in this case. (People v. Saddler (1979) 24 Cal.3d 671, 680-681 (Saddler); Rodriguez, supra, 170 Cal.App.4th at pp. 1066-1068; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471 (Lamer).) Saddler emphasized that CALJIC No. 2.62 cautions that a defendant’s failure to deny or explain “‘does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of defendant beyond a reasonable doubt.’” (Saddler, supra, 24 Cal.3d at p. 680.) As explained in Rodriguez, similar cautionary language is included in CALCRIM No. 361. (Rodriguez, supra, 170 Cal.App.4th at pp. 1066-1067.)
Defendant acknowledges Saddler but disagrees with the California Supreme Court’s reasoning in that case and contends CALCRIM No. 361 violates his constitutional rights because it does not treat a testifying defendant the same as any other witness. Both Saddler and Rodriguez rejected the similar argument that this instruction impermissibly singles out a defendant’s testimony. (Saddler, supra, 24 Cal.3d at pp. 680-681; Rodriguez, supra, 170 Cal.App.4th at p. 1067.) Evidence Code section 413 “allows a trier of fact to consider a party’s failure to explain or deny evidence, a principle expressed in CALCRIM No. 361. This distinguishes a criminal defendant from the other trial witnesses, whether prosecution or defense.” (Rodriguez, supra, 170 Cal.App.4th at p. 1068, italics in original.) We agree with the analysis in Saddler and Rodriguez that the instruction does not suffer from any constitutional infirmities.
Defendant next contends there was insufficient evidence to support CALCRIM No. 361 because he “explained or denied all incriminating evidence about which he was questioned,” particularly the source of the cash, and he was not required to produce pay stubs to support his testimony about how much he was paid. CALCRIM No. 361 is properly given when there are “facts or evidence in the prosecution’s case within [the defendant’s] knowledge which he did not explain or deny.” (Saddler, supra, 24 Cal.3d at p. 682.) A contradiction between the testimony of a defendant and other witnesses does not constitute a failure to deny that justifies giving the instruction. (Ibid.) “‘[T]he test for giving the instruction is not whether the defendant’s testimony is believable. [The instruction] is unwarranted when a defendant explains or denies matters within his or her knowledge, no matter how improbable that explanation may appear.’ [Citation.]” (Lamer, supra, 110 Cal.App.4th at p. 1469.) However, if a defendant elects to testify at trial and there are “logical gaps” in his testimony, the jury may be instructed with CALCRIM No. 361. (People v. Redmond (1981) 29 Cal.3d 904, 911.)
CALCRIM No. 361 was properly given in this case because defendant failed to explain the source of the cash found in his possession. While defendant claimed he had just been paid for his work as a farm laborer foreman and driver, he was unable to identify any of his various employers, where he worked, what communities he worked in, and where he drove the farm laborers. Defendant’s cross-examination answers created logical gaps in his testimony, such that the jury could conclude that defendant failed to explain circumstances about which he knew or should have known.
Defendant cites to Lamer in support of his argument that CALCRIM No. 361 is a “dangerous” instruction and should not have been given in this case. In Lamer, however, the trial court gave CALCRIM No. 2.62 because the defendant did not explain the victim’s motive for bringing molestation charges against him, even though the defendant was not asked to speculate about the matter. Lamer held the instruction was inappropriate because there was no evidence the defendant had facts or evidence in his knowledge as to his victim’s state of mind. (Lamer, supra, 110 Cal.App.4th at pp. 1470-1471.) In contrast, the defendant in this case was asked to explain the source of the cash found in his pocket, a matter within his knowledge, and defendant was unable to identify his income sources.
Even assuming it was error to give CALCRIM No. 361, it is not reasonably probable that a result more favorable to the defendant would have occurred if the instruction had not been given. (People v. Watson (1956) 46 Cal.2d 818, 836; Saddler, supra, 24 Cal.3d at p. 683; Lamer, supra, 110 Cal.App.4th at pp. 1471-1472.) For example, Saddler held the trial court erroneously gave the instruction in that case because there was simply a “clear conflict” between the defendant’s alibi and an eyewitness’s testimony, and “a contradiction is not a failure to explain or deny.” (Saddler, supra, 24 Cal.3d at pp. 682-683.) However, Saddler found the error was not prejudicial based upon the strength of one eyewitness’s testimony. (Id. at pp. 683-684.)
The evidence in this case was “significantly stronger” than in Saddler. (See, e.g., Lamer, supra, 110 Cal.App.4th at p. 1473.) Officer Cortez encountered defendant in the same location where he arrested defendant several months earlier for methamphetamine sales. On this occasion, another person was standing nearby and shouted a warning that Cortez was approaching. While defendant claimed he just happened to stop in that front yard to urinate, Cortez found the bag of $20 methamphetamine bindles in the exact location where defendant had been bending over. Defendant was found in possession of $740, including seventeen $20 bills, the exact denominations for which each baggie of methamphetamine would have been sold.
Moreover, CALCRIM No. 361 “‘does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).’” (Lamer, supra, 110 Cal.App.4th at p. 1472.) Thus, even if the jury erroneously receives CALCRIM No. 361, the error is not prejudicial because “the text of the instruction itself tells the jury that it would be unreasonable to draw an adverse inference if the defendant lacks the knowledge needed to explain or deny the evidence against him.” (Lamer, supra, 110 Cal.App.4th at p. 1472, italics in original.)
II. Prosecutorial Misconduct/Ineffective Assistance
Defendant next contends the prosecutor committed prejudicial misconduct by asking the arresting officer and defendant to look the jurors in the eyes and say they were telling the truth, and using her closing argument to assert that defendant was lying because he failed to do so.
A. Background
As set forth ante, the prosecutor extensively cross-examined defendant as to his claim that he possessed $740 because he had just been paid. Defendant was unable to identify his employers or the details and locations of the particular jobs he performed. The following exchange occurred at the conclusion of the prosecutor’s cross-examination:
“Q. Mr. Lopez, will you look at this jury and tell them that you did not possess the methamphetamine that day to sell it.
“A. And he knows I didn’t have it. The officer knows I didn’t have it.
“Q. Mr. Lopez, will you look at each member of this jury and tell them you did not possess it for sale?
“A. What should I tell them?”
Defense counsel did not object.
The prosecutor called Officer Lopez in rebuttal to testify about the first time he arrested defendant for methamphetamine sales, and the following exchange occurred:
“Q. Have you told the truth during your entire testimony here during this trial?
“A. Yes, I have.
“Q. Would you look at the jury and tell them that your entire testimony here during the pendency of this trial is truthful?
“A. Yes, I can. I can look at every juror in the eye and tell you that everything in that [police] report is 100 percent true what happened that day.”
Defense counsel did not object.
The prosecutor referred to these exchanges in closing argument:
“... Officer Cortez testified, he looked each one of you in the eye and said that the defendant in this case told him he was selling drugs. I asked the defendant to look at you twice and tell you that his testimony here is truthful, and he couldn’t do it. When you have two people that are telling different stories, you have to call on your experience to make that determination. Some of you have kids. Some of you have friends. When you have two people who are telling you two different stories, you look at them and say, who am I dealing with, what is the motive to lie, you call them together, and you ask them questions to determine which, if any one of them, are telling the truth. [¶]... [Y]ou heard from Officer Cortez. He looked you in the eye. There is only one person in this courtroom who couldn’t do it, and I urge you to return a guilty verdict for him.”
Defense counsel did not object to the prosecutor’s argument but used closing argument to assert that defendant was in the wrong place at the wrong time, that the baggies of methamphetamine were found in an area with high drug activity, and Officer Cortez simply assumed defendant was connected with the baggies without searching Monroy, investigating the occupants of the duplex, or searching defendant’s residence.
B. Analysis
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before 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. Samayoa (1997) 15 Cal.4th 795, 841.)
Defense counsel did not object to the prosecutor’s questions or her closing argument and has thus waived his prosecutorial misconduct claims. There is no evidence that an admonition would not have cured any purported harm, or that an objection or request for admonishment would have been futile. (See People v. Boyette (2002) 29 Cal.4th 381, 432.) There is no indication that the trial court repeatedly overruled valid objections or otherwise discouraged defense counsel from taking action. (See, e.g., People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.)
Defendant raises the alternative argument that defense counsel was ineffective for failing to object to the prosecutor’s prejudicial questions and closing argument. “In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 215.) We note that the failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) In any event, we will address the prosecutorial misconduct claim on the merits to the extent necessary to decide the ineffective assistance claim. (People v. Ochoa (1998) 19 Cal.4th 353, 431.)
Defendant argues the cumulative effect of the prosecutor’s questions and closing argument allowed “the prosecutor and police officer to invade the jury’s role in determining credibility.” Defendant is correct that it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The prosecutor’s questions in this case, however, “were designed merely to highlight the discrepancies between defendant’s testimony and that of the witnesses.” (People v. Guerra (2006) 37 Cal.4th 1067, 1126.) While the prosecutor would have been well-advised to refrain from the trial tactic of importuning witnesses, the questions did not call upon defendant and Cortez to characterize each other as liars. In addition, the jury was instructed with CALCRIM No. 105, that it was the sole judge of a witness’s believability. (People v. Guerra, supra, 37 Cal.4th at p. 1126.)
As for the prosecutor’s references to these exchanges in closing argument, “[t]he general rule is that improper vouching for the strength of the prosecution’s case ‘“involves an attempt to bolster a witness by reference to facts outside the record.”’ [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] Specifically, a prosecutor’s reference to his or her own experience, comparing a defendant’s case negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175, 206-207.) However, the prosecutor does not commit misconduct if he or she asks “the jury to believe the prosecution’s version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party’s interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument....” (Id. at p. 207.)
“Argument may be vigorous and may include opprobrious epithets reasonably warranted by the evidence. [Citations.]” (People v. Edelbacher (1989) 47 Cal.3d 983, 1030, disapproved on another ground in People v. Loyd (2002) 27 Cal.4th 997, 1007, fn. 12.) It is also permissible argument for the prosecutor to call the defendant a liar. (People v. Boyette, supra, 29 Cal.4th at p. 433.) “Referring to the testimony and out-of-court statements of a defendant as ‘lies’ is an acceptable practice so long as the prosecutor argues inferences based on evidence rather than the prosecutor’s personal belief resulting from personal experience or from evidence outside the record. [Citations.]” (People v. Edelbacher, supra, 47 Cal.3d at p. 1030.) “The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence, to comment on failure to produce logical evidence, [and] to argue on the basis of inference from the evidence that a defense is fabricated.... [Citations.]” (People v. Pinholster (1992) 1 Cal.4th 865, 948.) The prosecutor did not commit misconduct in closing argument and defense counsel was not ineffective for failing to object. (People v. Huggins, supra, 38 Cal.4th at p. 207.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, Acting P.J., Hill, J.