Opinion
G053795
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DANIEL MILLER, Defendant and Appellant.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16HF0004) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed as modified. Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury convicted Joseph Daniel Miller as charged of one count of transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)), one count of possession of methamphetamine for sale (id., § 11378), and one count of misdemeanor possession of drug paraphernalia (id., § 11364, subd. (a)). After Miller admitted the allegation of three prior prison convictions (Pen. Code, § 667.5, subd. (b)), the trial court sentenced him to a total of four years six months in jail.
Miller contends the prosecutor committed error in closing argument by equating the beyond reasonable doubt standard with the jury's experience and common sense and with simple reasonableness. Although a few statements in the prosecutor's closing argument did misstate the law when viewed in isolation, we conclude there was no prosecutorial error because in the context of the entire argument and the jury instructions it was not reasonably likely the jury understood or applied the statements in an erroneous manner.
We use the term prosecutorial error rather than prosecutorial misconduct because prosecutorial misconduct "'is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind.'" (People v. Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno).) "'A more apt description of the transgression is prosecutorial error.'" (Id. at p. 667.)
We agree with Miller that the trial court should not have added penalty assessments to the criminal laboratory fee imposed under Health and Safety Code section 11372.5, subdivision (a) (section 11372.5(a)) and that the abstract of judgment incorrectly reflects a drug program fee under Health and Safety Code section 11372.7, subdivision (a). We shall modify the judgment by striking the penalty assessments on the criminal laboratory fee and the drug program fee, and shall affirm the judgment as modified.
FACTS
I.
Evidence of Possession for Sale
On January 3, 2016, at 4:05 a.m., Irvine Police Officer James Litchfield conducted a traffic stop in the area of Von Karman Avenue and Michelson Drive in Irvine. Miller, who was the passenger in the vehicle, was lawfully arrested and taken to the Irvine police station. He was searched during booking. A cell phone and a sunglasses case were found in his trouser pockets. Inside the case were a glass pipe with residue in it, a used syringe, four baggies containing a white crystalline substance, and nine unused baggies.
The white substance in the four baggies tested presumptively positive for methamphetamine. Without the packaging, the substance in each bag weighed, respectively, 8.3 grams, 7.3 grams, 1.3 grams, and 0.3 grams, for a total of 17.2 grams. Laboratory tests later confirmed the 8.3 grams of substance in one baggie contained methamphetamine. Three of the used baggies were similar to the unused baggies, and one of the used baggies was larger than the others. Both the glass pipe and the syringe could be used for ingesting methamphetamine.
The cell phone found on Miller had two text messages from "Kris 10" that were received at 4:47 a.m. on the day before he was arrested. One text message was "half and whole pieces $" and the other was "how much each." There were also calls to and from "Kris 10" made just before and after the text messages were received.
Litchfield, who had been involved in about 100 methamphetamine investigations, testified that a methamphetamine user would use between 0.2 grams and one gram per day, depending on the user's tolerance and length of use. An average user would carry one to two grams for personal use, but Litchfield had seen users carry five or six grams. Litchfield had never seen a heavy methamphetamine user with 17 grams, and he testified it was not reasonable to believe someone would carry 17 grams of methamphetamine for personal use.
Based on the quantity of drugs, its packaging in four different amounts, the nine unused bags, and the single location, Litchfield testified that, in his opinion, Miller possessed the methamphetamine for sale.
City of Irvine Police Detective Matthew Yparrea, who served as a drug recognition expert for the Irvine Police Department, testified a user will typically use between .25 grams to one gram of methamphetamine a day. Yparrea had heard of heavy users using up to two grams a day. Methamphetamine is commonly sold in "dime bags," which are generally .125 grams for about $10. His experience taught him that methamphetamine users do not buy more than one or two weeks' worth of drugs at a time for fear of getting robbed or losing the drugs, or because they cannot afford to buy more at one time. The most Yparrea had seen on one user for personal use was an "eight ball," which is 3.5 grams.
Yparrea testified the text messages from "Kris 10" on Miller's cell phone were requests for the price of one half ounce or one full ounce "of whatever drug they're wanting." The methamphetamine found on Miller had street values of $20 to $30 (0.3 grams), $100 to $200 (7.3 grams), and $150 to $250 (8.3 grams), and, according Yparrea, drugs are not typically distributed in weights ending in 0.3 grams. In Yparrea's opinion, the larger quantities of methamphetamine were going to be broken into smaller quantities that would be packaged in the nine new and unused baggies found on Miller.
Based on the totality of circumstances, Yparrea concluded that Miller possessed the methamphetamine for sale. Yparrea believed Miller was a low level dealer because he was found with 17 grams of methamphetamine rather than a larger amount.
The fact that Miller was found with drug paraphernalia did not change the opinion of either Litchfield or Yparrea that Miller possessed the methamphetamine for sale because drugs dealers often are users too. The fact that Miller was not found with cash, a scale, or pay/owe sheets also did not alter Litchfield's opinion or Yparrea's opinion. Yparrea testified he would not expect a drug seller going to a location for a sale (a "drug drop") to carry a large amount of cash due to fear of losing the money, being robbed, or being stopped by law enforcement.
II.
Defense Expert Witness
Joseph Klein, a private consultant who had spent 29 years with the Fullerton Police Department, testified as an expert witness for Miller. Klein testified that, in his opinion, Miller possessed the methamphetamine for personal use. According to Klein, 17 grams is not a large quantity of methamphetamine, and simply possessing that amount alone does not indicate whether possession is for sale or personal use. Klein knew someone who had possessed a pound of methamphetamine for personal use, had personally seen someone use seven grams of methamphetamine over the course of several hours, and had spoken to users who claimed to have used 14 grams in one day.
Klein's opinion was also based on the fact that Miller had divided the methamphetamine into quantities of 8.3 grams, 7.3 grams, 1.3 grams, and 0.3 grams, which are odd weights not consistent with possession for sale. In addition, Miller was found without scales, but with a used pipe and a syringe, which indicated heavy personal use. Klein thought that Miller was a methamphetamine addict and his use was not recreational. Klein testified that whether or not a person is in possession of money, empty baggies, adulterants, scales, or drug paraphernalia could go either way on the issue whether possession was for sale or personal use. It is not uncommon for users to buy large quantities of drugs and package the drugs into smaller quantities for personal use, or for users to carry empty baggies as containers for mixing methamphetamine with water to create an injectable solution.
Klein testified the meaning of the text messages found on Miller's cell phone was unclear and attributing any meaning to them would be speculation. The text messages could mean that "Kris 10" was asking about a sale, making a general inquiry about the price of drugs, or asking Miller how much he had paid for drugs. Klein believed, based on that totality of circumstances, there was not enough evidence to determine whether Miller possessed the methamphetamine for sale.
DISCUSSION
I.
There Was No Prosecutorial Error.
A. The Challenged Statements Made by the Prosecutor
Miller argues the prosecutor committed error during closing and rebuttal argument by making statements that lowered the prosecution's burden of proof by equating it with experience, common sense, and simple reasonableness. At trial, it was not disputed that Miller had been in possession of methamphetamine. The issue for the jury to decide was whether Miller had possessed the methamphetamine for sale or for personal use. Both the prosecutor and defense counsel presented expert testimony on that issue.
The prosecution's burden of proof is codified in Penal Code section 1096, the first sentence of which states: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to an acquittal, but the effect of this presumption is only to place upon the state the burden of proving him or her guilty beyond a reasonable doubt." --------
At the outset of closing argument, the prosecutor commented: "As we spoke about extensively in voir dire, the jury's job is just to look at the facts, the case using your common sense and experience, and determine: Do the facts of this case meet the elements of the charges?" The prosecutor then explained the charges and their elements and reviewed some evidence on the subject of the amount of methamphetamine a user might take in a day.
The prosecutor next argued:
"This case is all about common sense, reasonability.
"My burden to you is prove to you beyond a reasonable doubt. And I'm asking you to use your common sense. And, in fact, the law that the judge is going to instruct you on, says in it, 'in deciding whether testimony is true and accurate, use your common sense and experience.'
"Ask yourself: Is it reasonable that a methamphetamine user, knowing what you know from the testimony in this case and your common sense about what you know about methamphetamine users, is it reasonable that a methamphetamine addict, a methamphetamine user, not a dealer, just a user, would be able to afford large quantities, weeks' worth of methamphetamine?
"No. Of course that's not reasonable. That a methamphetamine user, not a dealer just a user, would take large quantities of drugs and split them up into various packets and carry it on themselves in various packets?
"There's absolutely no explanation for doing that. It's not reasonable.
"Why would a methamphetamine user, if they [sic] had a lot of drugs, walk around with all of it on their person, knowing what the culture is like, with theft being very high, with people being addicts and wanting that drug? It's not safe to walk around with large quantities.
"Is it reasonable, does it make sense that a user would carry around multiple new and unused baggies?
"No. There's absolutely no purpose for that for a user.
"What about driving from one location to another at 4:00 in the morning with a large quantity of drugs on their person, split up in multiple baggies. Why would a user be doing that?
"It's not reasonable.
"And, finally, text messages on your phone indicating sales. Why would a user have those text messages on their [sic] phone?
"It's not reasonable."
The prosecutor then addressed the evidence, including expert testimony, on the issue of whether Miller possessed the methamphetamine for sale or possession. The evidence included the text messages found on Miller's cell phone. The prosecutor argued "[t]here's no other reasonable explanation for these texts and calls, other than the person receiving these texts is selling." The prosecutor acknowledged that Yparrea testified in response to defense questioning that it was possible the text messages were sent for a reason other than asking about a sale, but stated, "ask yourself: Is that reasonable?"
The prosecutor concluded by arguing: "Because common sense and reasonability show that the defendant is guilty of each of these counts, I'm confident that the jury will find the defendant is guilty of possession of controlled substance, paraphernalia; possession of methamphetamine with the intent to sell; and transportation of methamphetamine with intent to sell."
In rebuttal, the prosecutor argued: "Proof beyond a reasonable doubt, that is absolutely my standard, and I welcome that standard. I submit to you that I met that standard in this case." The prosecutor continued her argument by stating: "Proof beyond a reasonable doubt is not proof beyond all doubt. It's what's reasonable. That's what this whole case is about. This case is about your common sense and what is reasonable. [¶] In this case, there is no reasonable doubt that [Miller] is guilty of intent to sell. [¶] Proof beyond a reasonable doubt, it's higher than preponderance, it's higher than all the other standards that counsel just had on . . . his chart."
The prosecutor turned to the subject of circumstantial evidence and, in particular, Klein's testimony. The prosecutor reminded the jury that its job was to consider the witnesses' testimony and determine which witnesses were "credible and reasonable." The prosecutor argued that Klein "was anything but reasonable" and was not credible. The prosecutor argued: "He defied common sense. This is a case about common sense, and I submit to you Dr. Klein defied all common sense."
After reminding the jury that Klein had testified he knew someone who used 14 grams of methamphetamine in one day, the prosecutor argued: "Use your common sense, use what you learned about how little a use of methamphetamine is needed and ask yourself if it's reasonable that somebody is using 14 grams of methamphetamine." At that moment, defense counsel made an objection based on "burden shifting." The trial court overruled the objection. The prosecutor continued to argue that Klein's testimony was unreasonable and that, while Litchfield and Yparrea had made concessions, they had better experience than Klein and were not being paid for their testimony.
The prosecutor concluded by arguing: "The jury's job is to determine the facts based on the evidence using your common sense. Again, I'm emphasizing this law that the court is going to instruct you on because I think it's the most important here in deciding whether testimony is true and accurate. Use your common sense. Use your experience. [¶] And using your common sense and your experience, I'm confident that you will find the defendant intended to sell those drugs."
B. Several of the Prosecutor's Statements, Viewed in
Isolation, Could Be Construed as Misstating the
Prosecution's Burden of Proof.
1. Introduction
Miller argues the prosecutor's appeal to the jurors to use their common sense and experience was error because doing so created the risk "a juror may reject, out of hand, that evidence which, although admissible and based on reliable expert information and research, is at odds with that juror's common sense view." Miller argues, "[c]onsequently, relying on common sense in determining guilt unduly simplifies and trivializes all that is required in the guilt beyond a reasonable doubt determination." Miller argues the prosecutor erroneously equated the prosecution's burden of proof beyond a reasonable doubt with a decision of guilt that is reasonable and based on common sense and experience.
The Attorney General argues that Miller forfeited his claim of prosecutorial error because he objected only once, in response to the prosecutor's comment in rebuttal about whether it is reasonable to believe a methamphetamine user would carry 17 grams of the substance. Miller argues in response that the single objection preserved the argument for appeal, and, if it did not, then he is entitled to relief for ineffective assistance of counsel. We do not reach the issue of forfeiture or ineffective assistance of counsel because we conclude there was no reasonable likelihood that the prosecutor misled the jury.
2. Permissible Argument
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its . . . obligation to overcome reasonable doubt on all elements [citation].' [Citations.] To establish such error, bad faith on the prosecutor's part is not required." (Centeno, supra, 60 Cal.4th at p. 666.)
"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.'" (Centeno, supra, 60 Cal.4th at p. 667.)
A prosecutor's conduct violates the federal constitution when the conduct "'infects the trial with such unfairness as to make the conviction a denial of due process'"; that is, when the conduct is "'of sufficient significance to result in the defendant's right to a fair trial.'" (People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutor's argument that does not render a criminal trial fundamentally unfair violates California law only if the conduct involves "'"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (Ibid.)
Jurors may use common sense and good judgment in evaluating the weight of the evidence presented to them. (People v. Venegas (1998) 18 Cal.4th 47, 80.) Jurors also may use their common sense and experience in determining whether witnesses, including expert witnesses, are credible and whether a witness's testimony is true and accurate. (See CALCRIM Nos. 226, 332.) Therefore, it is not error for the prosecutor to urge the jurors to use their common sense, good judgment, and experience for those purposes. In addition, the prosecutor may argue "reasonably possible interpretations to be drawn from the evidence." (Centeno, supra, 60 Cal.4th at p. 672.) "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory." (Ibid.) The prosecutor may "urge the jury to '"accept the reasonable and reject the unreasonable"' in evaluating the evidence before it." (Id. at p. 673.)
Here, most of the challenged portions of prosecutor's closing argument were permissible under those standards. The prosecutor properly urged the jurors to use their common sense and experience in deciding whether witness testimony was true and accurate and argued Klein's testimony and the defense theory that Miller possessed 17 grams of methamphetamine for personal use was not reasonable. "To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do." (People v. Campos (2007) 156 Cal.App.4th 1228, 1240.) The prosecutor properly argued it was unreasonable to believe that a methamphetamine user who was not a seller would be driving around at 4:00 a.m. with a large quantity of methamphetamine divided into many baggies and with nine unused baggies.
3. Impermissible Argument and Centeno
While a prosecutor may appeal to the jurors to use their common sense, experience, and reason to evaluate the evidence and assess witness credibility, a prosecutor may not argue or even suggest the prosecution's burden of proof is satisfied if the prosecution evidence presents a reasonable account. (Centeno, supra, 60 Cal.4th at p. 672.) A prosecutor may argue that defense interpretations of the evidence are unreasonable, but may not argue that deficiencies in the defense evidence can make up for shortcomings in the prosecution's case. (Id. at p. 673.) The prosecutor may not "confound[] the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt." (Ibid.)
Three parts of the prosecutor's closing argument stray into the area the Supreme Court was concerned about. First, at the end of the first part of closing argument, the prosecutor stated: "Because common sense and reasonability show that the defendant is guilty of each of these counts, I'm confident that the jury will find the defendant is guilty of possession of controlled substance, paraphernalia; possession of methamphetamine with the intent to sell; and transportation of methamphetamine with intent to sell." (Italics added.) Second, in the opening part of rebuttal argument, the prosecutor stated: "Proof beyond a reasonable doubt is not proof beyond all doubt. It's what's reasonable. That's what this whole case is about. This case is about your common sense and what is reasonable." (Italics added.) Third, the prosecutor concluded by stating: "Use your common sense. Use your experience. [¶] And using your common sense and your experience, I'm confident that you will find that the defendant intended to sell those drugs." (Italics added.) These three passages from the prosecution's closing argument, read in isolation, might suggest the jury's common sense, experience, and use of reason, and not proof beyond a reasonable doubt, was sufficient to convict Miller.
In Centeno, supra, 60 Cal.4th 659, the seminal case in this area, the California Supreme Court reversed the defendant's convictions after finding the prosecutor misstated the burden of proof in rebuttal argument and held defense counsel was prejudicially ineffective for failing to object. The defendant was convicted of two counts of multiple offenses for sexually assaulting a seven-year-old child, who gave inconsistent testimony and refused to answer many questions at trial. (Id. at pp. 662-664.) On appeal, the defendant argued the prosecutor committed prejudicial misconduct by misstating the burden of proof in closing rebuttal argument. The defendant, conceding his attorney had failed to object, raised ineffective assistance as an alternative argument. (Id. at p. 674.)
The California Supreme Court in Centeno reviewed the prosecutor's rebuttal argument and determined the prosecutor misstated the burden of proof in two separate instances. In the first instance, the prosecutor misstated the burden of proof by using a visual display depicting the outline of the state of California and giving hypothetical testimony from hypothetical witnesses who described various cities and landmarks. (Centeno, supra, 60 Cal.4th at p. 665.) The prosecutor had argued that even though the information provided was incomplete, there was no reasonable doubt the evidence described the state of California. (Id. at pp. 665-666.) The Supreme Court held the use of the visual image misstated the burden of proof, misled the jury into believing its task was analogous to solving a picture puzzle unrelated to the evidence, and failed to accurately portray the state of the evidence presented at trial. (Id. at pp. 669-670.)
The second instance in which the prosecutor misstated the burden of proof is relevant here. The prosecutor in Centeno had argued: "'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' . . . . 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.'" (Centeno, supra, 60 Cal.4th at pp. 671-672.)
The Supreme Court concluded the italicized parts of the prosecutor's argument misstated the burden of proof because they "left the jury with the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden." (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor did not simply urge the jury to accept the reasonable and reject the unreasonable in evaluation the evidence. "Rather, [the prosecutor] confounded the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Id. at p. 673.)
The prosecutor's arguments in this case bear some resemblance to those found in Centeno to be error. Here, the prosecutor told the jury (1) "common sense and reasonability show that the defendant is guilty of each of these counts"; (2) "[t]his case is about your common sense and what is reasonable"; and (3) "using your common sense and using your experience, I'm confident that you will find that the defendant intended to sell those drugs." Those comments are not unlike telling the jury "'the defendant abused Jane Doe. That is what is reasonable, that he abused her'" and "'[t]hat is what is reasonable. He's good for it.'" (Centeno, supra, 60 Cal.4th at pp. 671, 672, italics omitted.) When viewed in isolation, the prosecutor's comments in this case could be interpreted, as Miller asserts, as equating the beyond a reasonable doubt burden of proof with common sense and reasonability and suggesting the jury could find Miller guilty if the prosecutor's interpretation of the evidence was reasonable.
C. But Read in the Context of the Entire Argument and the
Jury Instructions, There Was No Reasonable Likelihood the
Questionable Statements Misled the Jurors.
But to find prosecutorial error, we must view the challenged statements in the context of the entire argument and the jury instructions to determine whether there was a reasonable likelihood the jury understood or applied the comments in an improper or erroneous manner. (People v. Cortez (2016) 63 Cal.4th 101, 130-131 (Cortez).) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.'" (Id. at p. 130.) "'[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
In that respect, this case differs from Centeno. In Centeno, the Supreme Court concluded it was reasonably likely that the prosecutor's hypothetical about the state of California together with the "accompanying argument" likely misled the jury. (Centeno, supra, 60 Cal.4th at p. 674.) Here, the prosecutor did not present an objectionable hypothetical and, as we have explained, potential prosecutorial error is limited to three statements made in closing argument. We turn to the context in which those statements were made.
In closing argument, the prosecutor at least twice told the jury that the prosecution bore the burden of proving guilt beyond a reasonable doubt, explained that burden of proof was higher than a preponderance, and argued there was no reasonable doubt that Miller possessed the methamphetamine for sale. The prosecutor properly argued it was unreasonable to conclude that a methamphetamine user who was not a dealer would have reason to carry 17 grams of methamphetamine with unused baggies. The prosecutor argued that Klein was not credible and that his testimony was not reasonable. The prosecutor argued the text messages on Miller's cell phone were proof that Miller possessed the methamphetamine for sale, and any other interpretation was unreasonable. The prosecutor, in conclusion, reminded the jurors, correctly so, that the court was going to instruct them to use common sense and experience in deciding whether testimony is true and accurate.
Thus, when the jurors heard the prosecutor tell them that "common sense and reasonability show that defendant is guilty," that "[t]his case is about your common sense and what is reasonable," and that "using your common sense and using your experience, I'm confident that you will find that defendant intended to sell those drugs," the jurors would have understood those comments, in context with the rest of the prosecutor's closing argument, as reminding them to use their common sense, experience, and good judgment in weighing the evidence and in determining whether the witnesses were credible and their testimony true and accurate. The jurors had twice been told by the prosecutor that the prosecution bore the burden of proving guilt beyond a reasonable doubt. They would have understood the prosecutor's exhortation to reasonableness as meaning they should accept reasonable inferences from the testimony and reject the unreasonable ones, or as referring to the reasonable doubt element of the burden of proof.
In determining whether the prosecutor committed error, it is significant that the trial court correctly defined the reasonable doubt standard in the jury instructions. (Cortez, supra, 63 Cal.4th at p. 131.) The trial court instructed the jury: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] . . . . Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." The court instructed the jury on direct and circumstantial evidence, and "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty had been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." The court instructed the jurors that if they could draw two or more reasonable conclusions from the circumstantial evidence, they had to accept the one pointing to innocence. The court told the jurors they may use their common sense and experience in determining whether the witnesses, including expert witnesses, were credible and whether their testimony was true and accurate. (See CALCRIM Nos. 226, 332.)
The jury instructions left no doubt about the prosecution's burden of proof, the proper application of each juror's common sense and experience, and the role of reasonableness in reaching a verdict. To the extent the prosecutor's statements were inconsistent with the instructions, the jury was instructed to follow the latter. The trial court instructed the jury: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (See CALCRIM No. 200.) The court told the jury that "[n]othing the attorneys say is evidence" and "their remarks are not evidence."
We presume the jury followed the court's instructions, rather than any conflicting comments by counsel, in reaching a verdict. (Cortez, supra, 63 Cal.4th at p. 131; People v. Prince (2007) 40 Cal.4th 1179, 1295; People v. Morales (2001) 25 Cal.4th 34, 47.) "'[J]uries generally understand that counsel's assertions are the "statements of advocates."'" (Cortez, supra, 63 Cal.4th at p. 131.)
Considered "'[i]n the context of the whole argument and the [jury] instructions'", the jury in this case likely did not understand the prosecutor's comments as diminishing the prosecution's burden of proof. (Centeno, supra, 60 Cal.4th at p. 667.) We therefore conclude there was no prosecutorial error.
II.
The Trial Court Erred by Adding Penalty Assessments to
the Criminal Laboratory Fee.
At sentencing, the trial court imposed a laboratory analysis fee of $50.00 pursuant to section 11372.5(a) plus penalty assessments under Penal Code section 1464, subdivision (a)(1). Miller argues the addition of penalty assessments was error because the laboratory analysis fee is not a "fine, penalty, or forfeiture" against which a penalty may be assessed under Penal Code section 1464(a)(1), subdivision (a). The laboratory analysis fee is, he argues, an administrative fee not subject to assessments.
Section 11372.5(a) provides that every person who is convicted of a violation of any one of a number of Health and Safety Code sections "shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense." In relevant part, Penal Code section 1464, subdivision (a)(1) provides: "[E]xcept as otherwise provided in this section, there shall be levied a state penalty in the amount of ten dollars ($10) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including all offenses, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code."
Courts are split on the issue whether a "criminal laboratory analysis fee" under section 11372.5(a) is a "fine, penalty, or forfeiture" under Penal Code section 1464, subdivision (a)(1). (See People v. Martinez (2017) 15 Cal.App.5th 659, 662, review den. Nov. 29, 2017, S245327 (Martinez) [penalty assessment not permitted for laboratory analysis fee]; People v. Webb (2017) 13 Cal.App.5th 486, 496, 498-499 [penalty assessment not permitted for laboratory analysis fee]; People v. Watts (2016) 2 Cal.App.5th 223, 234 [penalty assessment not permitted for laboratory analysis fee]; People v. Alford (2017) 12 Cal.App.5th 964, 967 review granted Sept. 13, 2017, S243340 [penalty assessment required for laboratory analysis fee]; People v. Sharret (2011) 191 Cal.App.4th 859, 861 [laboratory analysis fee constitutes punishment]; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522 [penalty assessment required for laboratory analysis fee]; People v. Sierra (1995) 37 Cal.App.4th 1690, 1695 [penalty assessment required for laboratory analysis fee].)
In Martinez, supra, 15 Cal.App.5th 659, a panel of this court concluded the criminal laboratory fee under section 11372.5(a) is an administrative fee, not a fine, penalty or forfeiture, and therefore is not subject to a penalty assessment under Penal Code section 1464, subdivision (a)(1). The court in Martinez, adopting the reasoning of People v. Webb, supra, 13 Cal.App.5th 486, and People v. Watts, supra, 2 Cal.App.5th 223, found "the Legislature's imprecise and inconsistent use of the terms 'fee,' 'fine,' and 'penalty' is highly problematic," and agreed with People v. Webb that any attempt to resolve the issue based upon the plain language of the statute was unavailing. (Martinez, supra, 15 Cal.App.5th at p. 667.) The court reasoned the criminal laboratory fee was not punitive because it primarily served the nonpunitive purpose of defraying administrative costs and because the amount of the fee was not calibrated to the seriousness of the offense. (Id. at pp. 667-669.)
We agree with Martinez and, following it, modify the judgment by striking the penalty assessments imposed on the criminal laboratory fee under section 11372.5(a).
III.
The Abstract of Judgment Incorrectly Reflects a
Drug Program Fee.
Miller argues the abstract of judgment incorrectly reflects the imposition of a drug program fee under Health and Safety Code section 11372.7, subdivision (a). At sentencing, the trial court did not pronounce a drug program fee, and no such fee appears in the court minutes. The Attorney General agrees that the trial court did not impose a drug program fee and that the abstract of judgment should be amended accordingly. We therefore modify the judgment by striking the drug program fee.
DISPOSITION
The judgment is modified by striking the penalty assessments imposed on the criminal laboratory fee under section 11372.5(a) and striking the drug program fee. We direct the trial court to amend the abstract of judgment to reflect those modifications and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, and in all other respects, the judgment is affirmed.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.