Opinion
C075144
03-09-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE JAMES NEAL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13F00814)
Defendant Jesse James Neal was convicted of possessing hydrocodone (Health & Saf. Code, § 11351, count 1), oxycodone (ibid., count 2), and marijuana for sale (id. at § 11359, count 3). The jury found true allegations that defendant was personally armed with multiple firearms for the hydrocodone and oxycodone offenses (Pen. Code, § 12022, subd. (c)), and that a principal was armed with multiple firearms for the marijuana offense (id at § 12022, subd. (a)(1)).
Defendant was sentenced on count 1 to the low term of two years, to be served in the county jail, plus three years for the firearm enhancement. He was ordered to spend three years in custody and two years on supervision. Defendant was sentenced concurrently to two years for count 2 and one year four months for count 3. The court stayed the firearm enhancements related to counts 2 and 3 under Penal Code section 654.
Defendant appeals contending that: (1) the court abused its discretion in admitting evidence of drug paraphernalia found in his garage because the evidence was more prejudicial than probative under Evidence Code section 352; (2) the prosecutor committed misconduct during his closing argument by referring to facts not in evidence and by implying defense counsel had suborned perjury from a trial witness; (3) the court failed to give a unanimity instruction concerning the firearm enhancements; (4) defendant was deprived of his constitutional right to confront the witnesses against him; and (5) his counsel was ineffective for failing to object to hearsay statements contained in defendant's taped police interview, which was given to the jury.
We conclude: (1) the trial court did not abuse its discretion in admitting evidence of drug paraphernalia found in defendant's garage; (2) the prosecutor did not commit misconduct as alleged; (3) the trial court was not required to give the jury a unanimity instruction; (4) even if the trial court erred in limiting defendant's cross-examination of one of the witnesses, defendant was not prejudiced thereby; and (5) defendant did not suffer ineffective assistance of counsel.
We affirm the judgment.
FACTS AND PROCEEDINGS
A. The Search of Defendant's Home
Defendant was a retired correctional officer for the California Department of Corrections and Rehabilitation (CDCR), and, at the time of his arrest, was working as a retired annuitant for CDCR. CDCR had been investigating defendant for allegedly selling drugs from his home.
CDCR special agents watched defendant's home for approximately two months before executing a search warrant on November 15, 2012, after defendant and his son left the home. Defendant was stopped a short time later and detained while the search was ongoing. No drugs or weapons were found on defendant or in his car, but his wallet contained an EBT, or food stamps card, with someone else's name on it. His cell phone had a text message from someone asking how much was left on the EBT card defendant had given him.
A search of the home revealed hundreds of prescription pills, several ounces of marijuana, and multiple firearms. In defendant's bedroom, officers located 142 oxycodone pills separated into two bindles in a sock behind a nightstand. One bindle contained 42 pills in a plastic Ziploc bag, and the other bindle contained 100 pills wrapped in Saran Wrap. Two firearms, a Beretta Pietro and a Beretta Tomcat, were found in the nightstand next to the bed, and a Colt Peacemaker .357 magnum revolver and ammunition were found in an unlocked box under the bed. None of the guns were registered to defendant, and one had been reported stolen.
Approximately three ounces of marijuana were found inside a brown paper bag stuffed behind the television. The marijuana was separated into four clear plastic bags, each labeled with a different name such as White Widow, Blue Dream, Hindu Kush, and Sweet Tooth. A fifth plastic bag contained additional marijuana. Nearly two ounces of marijuana were found in a jar inside defendant's closet.
A digital scale, commonly used for weighing narcotics, was disguised inside a compact disc cover on top of defendant's dresser. The scale had traces of a green leafy substance, which appeared to be marijuana. A paper towel with several names and corresponding dollar amounts written on it, a 3x5 index card that had various prescription medications, including Vicodin, Oxycontin, Norco, Xanax, and Valium, with the prices per pill written on one side and several dollar amounts totaling $1,219.35 written on the other, and an EBT card with another person's name on it, were also found in defendant's dresser.
In a guest bedroom, officers found more marijuana, two rifles and a shotgun. They also located a piece of paper with the word "debts" written on top along with names and corresponding monetary amounts, and a paper to defendant from an attorney.
A search of the garage turned up 299 hydrocodone pills in two prescription pill bottles without any labels. The bottles were located inside a lidded box on top of a cabinet in the garage. The officers also found a backpack with marijuana and drug paraphernalia, including a glass pipe, hypodermic needles and a burnt spoon.
CDCR special agents brought defendant back to his home while the search was still ongoing. After being advised of his Miranda rights, defendant agreed to speak with the agents.
During the recorded interview, which was played for the jury, defendant admitted he did not have current prescriptions for Vicodin, oxycodone, or any other medication. He denied selling any drugs, but admitted to giving marijuana and Vicodin to friends on occasion. Since he did not have a prescription, defendant explained that people often gave him prescription pills, which he would then give to others. He also claimed a former roommate with a medical marijuana card left marijuana in his house when he moved out. Unidentified "growers" also gave defendant a few ounces of marijuana. Defendant did not have a medical marijuana card, and he denied smoking marijuana. He admitted to using his stepdaughter's boyfriend's EBT card to buy groceries because he paid their car payment.
Defendant denied knowing about the 142 oxycodone pills found hidden in a sock behind a nightstand in his bedroom. He said the purported pay/owe sheets were not for drugs, but were for loans he had given to people, and that someone else wrote the 3x5 card containing the list of prescription medications and their street prices per pill. Of the three firearms found in his bedroom, defendant said a friend gave him one as collateral for money the friend owed him, one was his brother's, and one he got from someone, although he could not remember the individual.
B. Trial Proceedings
An April 2013 information charged defendant with possession for sale of hydrocone (Health & Saf. Code, § 11351, count 1), possession for sale of oxycodone (Health & Saf. Code, § 11351, count 2), and possession for sale of marijuana (Health & Saf. Code, § 11359, count 3). The information alleged defendant was personally armed with the two Beretta pistols and the .357 Magnum revolver for counts 1 and 2 (Pen. Code, § 12022, subd. (c)), and that a principal was armed with the same firearms as alleged for counts 1 and 2 plus two rifles and a shotgun for count 3 (Pen. Code, § 12022, subd. (a)(1)). Defendant denied all charges and allegations.
At trial, Detective Darby Lannom testified as the prosecution's expert in possessing narcotics and marijuana for sale. According to Detective Lannom, physicians do not normally prescribe 300 hydrocodone pills, also known as Vicodin, at one time. Similarly, oxycodone is prescribed to people with severe chronic pain in small amounts, usually between 10 and 20 pills at a time. The amount of hydrocodone and oxycodone pills found in defendant's home, 299 pills and 142 pills, respectively, constituted useable amounts of those drugs.
Individuals who are legitimately prescribed hydrocodone or oxycodone usually keep the medication in a fully labeled pill bottle from the pharmacy where the prescription was filled. It is not common for such individuals to remove the labels from the pill bottles or to keep the pills in clear plastic bags or Saran Wrap. Drug sellers, on the other hand, often sell pills in plastic bags or in pill bottles with the labels removed so that the patient name, prescribing doctor, and pharmacy cannot be tracked.
In addition to cash, those who illegally sell drugs often accept EBT cards, gift cards, car stereos, laptops, or other items of value as payment for the drugs. Exchanging firearms for drugs is another form of payment.
Detective Lannom explained that prescription narcotics sellers often keep lists of pills they sell that include the price per pill depending on the milligrams. After examining the 3x5 card found in defendant's dresser, Detective Lannom stated that the prices listed per milligram on the card appeared consistent with prices for such narcotics on the street.
Those who intend to possess drugs for sales use digital scales to weigh the narcotics they sell, and those scales can be disguised as other objects, such as a compact disc cover, to avoid detection. People using digital scales for legitimate reasons generally do not hide the scale's appearance.
After being given a hypothetical tracking the facts of the case, Detective Lannom opined that the individual in the hypothetical possessed the hydrocodone, oxycodone, and marijuana for sale. The high amount or quantities of the drugs, the unusual packaging of the drugs, the multiple firearms, which could be used to protect the person's drug stash or as a form of payment, the disguised digital scale with what appeared to be marijuana residue, the presence of an EBT card in another person's name, were all consistent with drug sales. Detective Lannom further opined that the pieces of paper containing people's names and corresponding amounts of money that appeared to be owed were consistent with pay/owe sheets, which drug dealers use to keep track of how much buyers owe them. Even disregarding the purported pay/owe sheets, however, Detective Lannom's opinion that the narcotics and marijuana were possessed for sale would not change.
Defendant called several witnesses who testified that he had never sold them any narcotics or marijuana, and that he often lent them money. A few identified their names on the purported pay/owe sheets, and confirmed that the amounts represented loans from defendant and not drug sales. One testified that defendant had given her a few Vicodin pills in the past.
Defendant also testified on his own behalf. He again denied selling drugs, and admitted that he sometimes gave people marijuana, which he got from his former roommate and from unidentified growers, and Vicodin, which he got from a friend. He denied knowing that oxycodone pills were in his house, and he did not know to whom they belonged. He said he had permission to use the EBT card found in his wallet, which belonged to his daughter-in-law's boyfriend. The other EBT card found in his house was left by someone who used to live at his house. Regarding the guns found during the search, defendant testified that the shotgun was his, the rifles were his brother-in-law's, his brother gave him one gun as a gift, his son left another at the house, and one belonged to a friend who owed him money. The alleged pay/owe sheets documented loans he had given people and not drug sales, and the hypodermic needles and other drug paraphernalia found in the garage belonged to a pregnant, homeless woman he sometimes allowed to stay at his house.
The jury convicted defendant of all charges and found each of the arming enhancements true. Defendant was sentenced as described above, and timely filed an appeal.
DISCUSSION
I
Admission of Drug Paraphernalia Evidence
Defendant contends the trial court abused its discretion in admitting evidence that certain drug paraphernalia was found in his garage because such evidence was irrelevant to the prescription pill and marijuana charges and was unduly prejudicial under Evidence Code section 352. We find no abuse of discretion in admitting the evidence.
Prior to trial, defendant's counsel moved in limine to exclude photographs depicting drug paraphernalia confiscated from his garage. Among other things, the pictures showed hypodermic needles, which are often associated with methamphetamine use. He argued such evidence was unrelated to the charged offenses and was inflammatory. The court denied the motion.
At trial, the evidence showed that the needles and a burnt spoon belonged to a homeless pregnant woman whom defendant sometimes allowed to stay at his house. Although the prosecutor did not contend that defendant owned the items, or that defendant was a drug user, he nevertheless argued that the drug paraphernalia showed defendant's house was a drug house. He contends on appeal that such evidence was so inflammatory and had such little probative value that the court erred under Evidence Code section 352 in admitting the evidence.
Evidence Code section 352 allows a court "in its discretion, [to] exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) The prejudice referred to in section 352 is not the prejudice to a defendant that naturally flows from probative evidence tending to demonstrate guilt of a charged offense, but rather the prejudice resulting from " 'evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Trial courts exercise discretion in determining the admissibility of evidence under Evidence Code section 352. (People v. Ochoa (2001) 26 Cal.4th 398, 437, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn.14.) Reversal is warranted only when " ' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Id. at pp. 437-438.)
Based on this record, we cannot say the court abused its discretion in admitting the drug paraphernalia evidence. When asked whether a burnt spoon and hypodermic needles would relate in any way to using oxycodone or hydrocodone, the prosecution's narcotics expert testified that he knew of people injecting oxycodone and hydrocodone, although that method of ingestion was not as common as crushing the pills and then smoking or snorting the drugs. He explained, "[s]o maybe if they did inject [oxycodone or hydrocodone], which is not that common, they would use a spoon and a syringe. That's a possibility."
Given the court's wide latitude in determining whether evidence is relevant (People v. Cain (1995) 10 Cal.4th 1, 32 ["[T]he trial court is 'vested with wide discretion in determining relevance' "]), based on Detective Lannom's testimony, we cannot say the court erred in finding the drug paraphernalia evidence relevant to the oxycodone and hydrocodone charges. (Evid. Code, § 210 [defining "relevant evidence" as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action"].)
Defendant's argument that the jury would have been unduly prejudiced against defendant upon learning that he allowed a pregnant woman who used methamphetamine to stay at his house is not persuasive. Defendant explained that he tried to help her get into drug rehab, and that he provided her a safe place to stay instead of living on the street. He also denied knowing that she used any drugs while staying at his house. Thus, rather than painting defendant in a bad light, the evidence showed that defendant was generously trying to help someone in need.
Admitting the evidence did not result in a manifest miscarriage of justice. (Ochoa, supra, 26 Cal.4th at pp. 437-438.) We therefore reject defendant's challenge under Evidence Code section 352.
II
Prosecutorial Misconduct
Defendant contends the prosecutor improperly argued facts not in evidence during his closing by implying that defendant's counsel had suborned perjury from a trial witness. The prosecutor's alleged misconduct, he contends, violated his due process rights and rendered the trial fundamentally unfair. We disagree.
The standards for evaluating prosecutorial misconduct are well established. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) "[W]hen 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." (Ibid.)
Prosecutors, moreover, are "given wide latitude" during closing arguments. (Hill, supra, 17 Cal.4th at p. 819.) They are entitled to discuss the evidence and to comment on reasonable inferences that may be drawn from the evidence. (Morales, supra, 25 Cal.4th at p. 44.) Summations may be vigorous; a prosecutor is " ' "not limited to 'Chesterfieldian politeness. . . .' " ' " (Hill, supra, 17 Cal.4th at p. 819.)
In this case, defendant's witness, Sonia Reyes, testified that she wrote the street price per pill for several different prescription medications on the 3x5 index card found in defendant's room. According to Reyes, she obtained the pricing information from a woman with whom she had been incarcerated.
Reyes initially said she placed the index card in a nightstand in defendant's bedroom. Following a break, in which Reyes met with defendant's counsel, Reyes later testified on rebuttal that she had been confused about whether she put the card in the nightstand or the dresser. When shown a diagram defendant's counsel drew based on her description of the bedroom during the break, she testified that she may have put the index card in the dresser at some point. Over defense counsel's objection, the prosecutor pointed out on re-cross that Reyes had met with defendant's counsel at the break to draw the diagram and that her testimony appeared to change following the break. He questioned whether she changed her testimony after he had shown her People's Exhibit 32, which stated, "index card on the dresser." In response, Reyes said, "No, because he has junk in the top two drawers. He has miscellaneous items in there." On redirect, she said defense counsel had not told her how to testify regarding the location of the index card.
In closing arguments, the prosecutor argued Reyes changed her testimony regarding the index card's location after seeing People Exhibit 32. He specifically argued, "She said [she] put it in the nightstand . . . But then, ladies and gentleman, what do I do? I show her People's 32. I put this one up on the screen. She sees it. She notices that, uh-oh, the index card wasn't found in the nightstand. It was found in the dresser. Then we take a break. She convenes with Mr. Holmes, we come back from the break and she changes her testimony . . . She changed her testimony, after the break, after she had found out that the index card wasn't found in the nightstand." After unsuccessfully objecting to the argument, defendant's counsel countered that Reyes had been understandably confused and that he had not told her how to testify.
According to defendant, the prosecutor's closing argument implied that defense counsel had urged Reyes to change her testimony, which was a fact not in evidence. He concedes that the evidence showed Reyes met with defense counsel during the break and that her testimony changed from putting the index card in the nightstand to being unable to recall where she put it except to say that she may have also put it in the dresser, but he contends the implied allegation of suborning perjury was not.
While it is true that referencing facts not in evidence, which turns the prosecutor into his own witness offering unsworn testimony not subject to cross-examination (Hill, supra, 17 Cal.4th at p. 832), and questioning the integrity of defense counsel can constitute prosecutorial misconduct (ibid. ["[a] prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel"]), a close reading of the record reveals that the prosecutor did not so attack defendant's counsel nor did he reference facts not in evidence. No misconduct thus occurred. (See e.g., People v. Tate (2010) 49 Cal.4th 635, 692-693 [prosecutor did not commit misconduct where he said defense counsel had "created" a "preposterous" defense involving a nonexistent "phantom killer" because he did not accuse defense counsel of factual fabrication or deceit; he merely argued, as he was allowed to do, that there was no evidence for counsel's theory].)
Instead, the prosecutor argued that Reyes changed her testimony because she saw a trial exhibit that stated the index card was found on the dresser. It was not improper for the prosecutor to reference the sequence of events leading up to Reyes' change in or clarification of her testimony, including her meeting with defense counsel at the break because that is what occurred. (People v. Pinholster (1992) 1 Cal.4th 865, 948-949 [it is proper for prosecutors to argue that defense witnesses are not entitled to credence and to urge on the basis of inference from the evidence that a defense is fabricated], disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405.) Defense counsel himself elicited such testimony from the witness. He acknowledged meeting with Reyes over the break and that the two had produced a diagram of defendant's bedroom. According to defense counsel, Reyes "did the talking" and he "did the drawing."
Even assuming the prosecutor's summation was improper, we discern no possibility that this short remark in the prosecutor's lengthy argument had any effect on the verdict. (See e.g., People v. Wash (1993) 6 Cal.4th 215, 265-266 [no prejudicial error where prosecutor's closing argument arguably suggested that defense counsel had fabricated evidence].) Contrary to defendant's assertion, we do not perceive this case as being "close" such that the prosecutor's reference to Reyes' changing testimony regarding where she put the index card "tipped the balance against [him]."
Defendant admitted he did not have any valid prescriptions for hydrocodone or oxycontin, yet officers found 299 hydrocodone pills and 142 oxycontin pills in his home that were separated into bindles or contained in prescription pill bottles with the labels removed. Numerous weapons were located nearby as was a disguised digital scale and EBT cards in other people's names. The prosecution's narcotics expert opined that such facts were consistent with possessing the drugs for sale. The jury could thus reasonably reject defendant's self-serving testimony that he did not know he had the oxycontin in his bedroom and that he merely gave away hydrocodone pills to friends in need.
In light of the evidence presented at trial, we are overwhelmingly convinced the result would have been the same even had the prosecutor not referenced defense counsel's meeting with Reyes and her subsequent change in testimony concerning the index card's location.
III
Unanimity Instruction
Defendant contends the court erred in failing to give a unanimity instruction for the various firearm enhancements. His theory is as follows: because multiple firearms were alleged for each enhancement and certain jurors might have been convinced defendant was armed with one weapon, while others were convinced he was armed with another without all jurors at a minimum believing he was armed with any one firearm, all of the arming enhancements are tainted and must be reversed.
"In a criminal case, a jury verdict must be unanimous." (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo); see also People v. Wolfe (2003) 114 Cal.App.4th 177, 183-184 (Wolfe).) This means that each individual juror must be convinced, beyond a reasonable doubt, that the defendant committed the specific offense with which he is charged. (Russo, supra, 25 Cal.4th at p. 1132.) "The requirement of unanimity as to the criminal act is intended to eliminate the danger the defendant will be convicted even though there is no single offense all the jurors agree the defendant committed." (People v. Zavala (2005) 130 Cal.App.4th 758, 768.)
When the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes, or the trial court must instruct the jury that it must unanimously agree that the defendant committed the same criminal act. (Russo, supra, 25 Cal.4th at p. 1132.) The unanimity instruction must be given sua sponte, even if, like here, the defendant does not request the instruction. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)
Some courts have found that giving a unanimity instruction is necessary when a defendant is alleged to have possessed multiple firearms located in different rooms of a house if the defendant offers different defenses to the various alleged possessions. (See e.g., People v. Crawford (1982) 131 Cal.App.3d 591, 599-600 (Crawford) [unanimity instruction required where defendant's alleged possession of multiple firearms was fragmented as to space since guns were in different parts of the house including in a room where a third person was sleeping and evidence showed varying circumstances concerning possessory aspect of each weapon]; Wolfe, supra, 114 Cal.App.4th at p. 186 [court committed harmless error by failing to give unanimity instruction where facts showed defendant possessed multiple guns in various locations in trailer on two different days].) By contrast, where the act of possession is not fragmented as to time or space, the unanimity instruction is unnecessary. (Crawford, supra, 131 Cal.App.3d at pp. 599-600.) Thus, "where the acts of possession [are] not factually identical," the court should give a unanimity instruction; "where the acts [are] substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury's understanding of the case." (Ibid.)
In Crawford, for example, the defendant was charged with being a felon in possession of a firearm and the prosecution introduced evidence of four different firearms found inside the residence where he was arrested. (Crawford, supra, 131 Cal.App.3d at pp. 594-595.) In the bedroom where defendant and his girlfriend were sleeping, officers found a handgun holstered to the end of the bed and another in the closet. (Id. at p. 595.) Two more handguns were found in an upstairs bedroom where a third person was sleeping. (Ibid.) At trial, the defendant denied ever seeing the handgun holstered to the end of the bed and his girlfriend testified that the gun in the closet was hers and that defendant had never possessed the gun. (Ibid.) Although possession of all four guns was not fragmented as to time, the court found the possession was fragmented as to space because the "[g]uns were in different parts of the house [and] the evidence showed unique facts surrounding the possessory aspect of each weapon." (Ibid.) A unanimity instruction was thus required. (Ibid.)
In Wolfe, the trial court erred in failing to give a unanimity instruction where the evidence showed the defendant had possessed multiple firearms on two separate occasions and the guns were found in various parts of his mother's trailer where he lived. (Wolfe, supra, 114 Cal.App.4th at pp. 180, 188.) As in Crawford, the court found defendant's possession of the various firearms " 'fragmented as to space.' " (Id. at p. 185.) It also found the acts of possession were "fragmented as to time" since firearms were observed on two different days. (Ibid.) While the court found it was error not to give a unanimity instruction, it nevertheless concluded the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18 (Chapman) because the defendant presented a unitary defense to all of the firearms--that they belonged to his mother, and he had no dominion or control over the weapons--that the jury rejected. (Id. at p. 188.)
Applying the above principles to the present case, a unanimity instruction was not required because the alleged arming acts were not fragmented as to time or space. (See e.g., People v. Wright (1968) 268 Cal.App.2d 196, 198 [evidence that defendant possessed marijuana inside a car was not fragmented as to time or space even though a passenger in the car threw two of the five marijuana joints over a cliff when police approached the vehicle].) Each of the firearms was found on the same day inside defendant's house, which he had owned for nearly 30 years. While it is true that three of the firearms were found in defendant's bedroom, and three were found in a guest bedroom, the evidence showed defendant exercised dominion and control over his entire residence.
But even if we assume, like in Crawford, that the firearms found in the two different bedrooms were separated as to space although not time (Crawford, supra, 131 Cal.App.3d at p. 599), such that a unanimity instruction was arguably necessary, we are convinced beyond a reasonable doubt that the failure to give the instruction was harmless. (Wolfe, supra, 114 Cal.App.4th at pp. 186-187.) Here, unlike in Crawford, defendant never argued that he was unaware of any of the six firearms specifically alleged in the information, or that he did not possess any of those guns. (See e.g., Crawford at p. 595 [defendant argued that he was unaware of one firearm and that the other gun belonged to his girlfriend].) Nor did he ever assert that the homeless woman he sometimes let stay at his home owned or possessed any of the guns. Instead, he admitted he knew where he obtained each of the firearms and where each weapon was located within his home.
Defendant's contention that the jury might have disagreed on whether he was armed with any of the guns found in his bedroom because the weapons were under the bed or in a cluttered nightstand drawer is without merit. Based on the evidence presented, the jury reasonably could infer that each of the firearms were available for use for purposes of the arming statute since defendant kept the guns near his cache of illegal drugs. (See e.g., People v. Bland (1995) 10 Cal.4th 991, 1003-1005 (Bland) [jury could reasonably infer that a firearm was available for use for arming purposes where the defendant kept an unloaded gun in a place he frequented--his bedroom--near his cache of illegal drugs].)
Given defendant's admissions that he knowingly possessed each of the guns, and their close proximity to the narcotics discovered throughout his residence, none of the jurors would have had a reasonable doubt that each of the weapons was available for defendant's immediate use. Any failure to give a unanimity instruction, then, was harmless beyond a reasonable doubt.
IV
Confrontation Clause
Defendant next contends he was prohibited from fully cross-examining one of the prosecution's law enforcement witnesses in violation of his Sixth Amendment confrontation rights because the court did not allow him to ask the officer whether he believed certain uneven monetary amounts listed on the back of the 3x5 index card were consistent with drug sales, especially since the prices per pill written on the other side of the card were in whole numbers. We need not decide whether the court erred in so ruling because even if such an error occurred, defendant suffered no prejudice.
The Confrontation Clause guarantees the defendant in a criminal prosecution the right of cross-examine the witnesses against him subject to reasonable limitations imposed by the court. (Davis v. Alaska (1974) 415 U.S. 308 ; People v. Greenberger (1997) 58 Cal.App.4th 298, 349.) Trial judges retain wide latitude in limiting cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (People v. Harris (1989) 47 Cal.3d 1047, 1091, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Delaware).) The exclusion of impeaching evidence on collateral matters which has only slight probative value on the issue of veracity does not infringe on one's confrontation rights. (People v. Jennings (1991) 53 Cal.3d 334, 372.)
In determining whether a trial court violated a defendant's right to confrontation by restricting his preferred method of cross-examination, we consider whether a reasonable jury might have received a significantly different impression of the witness's credibility had the defendant been permitted to pursue his proposed line of questioning. (Delaware, supra, 475 U.S. at p. 680.) If an error occurred, it is subject to harmless-error analysis. (Id. at p. 684.) "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors. . . ." (Ibid.) Such factors include "the importance of the witness's testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Ibid.; see also People v. Belmontes (1988) 45 Cal.3d 744, 780-781, overruled on another ground in People v. Cortez (2016) 63 Cal.4th 101, 118.)
In this case, while defendant may have been prohibited from exploring the likelihood that the uneven amounts written on the 3x5 card represented drug sales with Sergeant Caldero, the court did allow him to pursue that precise line of questioning with another prosecution witness. Over the prosecution's objection, defense counsel was permitted to ask Special Agent McCoy, who was familiar with detecting drugs, the general quantities of drug sales, and the amounts for such sales, whether drug dealers normally sell drugs in uneven amounts such as $323.33. Special Agent McCoy responded that he "would be surprised" that someone would sell drugs worth that precise amount. He also conceded that it "would [not] be[] standard" to sell drugs in the amount of $62.40, and that $259.36 for a drug sales total would be "odd." After the prosecutor objected that there was no foundation for finding Special Agent McCoy an expert in sales, the court overruled the objection, stating, "[h]e said he has some familiarity, so I'll let him answer if he knows."
Thus, even if Sergeant Caldero had conceded on cross-examination that the uneven monetary amounts were generally not representative of common drug sales, the jury heard the exact same testimony from Special Agent McCoy. The prohibited testimony, in essence, would have been cumulative to Special Agent McCoy's concessions. (Delaware, supra, 475 U.S. at p. 684.)
In closing argument, moreover, defense counsel emphasized the following: "Well, now, what kind of drugs—what kind of drugs would you buy for $323.33? You know, you buy any denomination of drugs. You buy two of them, they're all even numbers on here. How could you come up with $323.33? And then there's 62.40. You'll see them once you get back there, 62.40, 259.36, $175, 289.26, and on it goes, and it comes up to a total of 1219.35." The court did not prohibit or otherwise limit defense counsel from making the above argument.
Thus, even if we assume a constitutional error occurred, given the totality of the circumstances under which Sergeant Caldero's testimony was presented, and especially in light of Special Agent McCoy's concessions that drug sales in the uneven amounts listed would be atypical, defendant has failed to establish sufficient prejudice to warrant reversal.
V
Ineffective Assistance of Counsel
Defendant finally contends his counsel was ineffective for failing to object to hearsay statements that he sold drugs to others and that drug convicts were seen leaving his home, which were contained in a recording of defendant's interview with police that was played for the jury. In his view, his counsel had no tactical reason for not objecting to the officer's recorded statements during the interview, and, had he done so, defendant argues the result would have been different.
To establish ineffective assistance of counsel, defendant must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333 (Bolin).) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, supra, 43 Cal.3d at p. 216.) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
We presume that counsel's conduct fell within the "wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.)
" '[A] mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (People v. Wharton (1991) 53 Cal.3d 522, 567 (Wharton).) Nonetheless, we need not decide whether counsel's failure to object on hearsay grounds when the recording was played for the jury was unreasonable because defendant has not, and cannot, establish prejudice from the alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 697 [if "it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice . . . that course should be followed"].)
In this case, law enforcement admitted that they employed ruses during defendant's interview, which the officer explained meant that they lied to him in order to coax additional information from him. Defendant himself testified that he knew the officers lied to him during the interview.
Defendant's counsel, moreover, repeatedly emphasized that the jury could not rely on the officer's recorded statements as evidence. He argued: "[Y]ou have to be very careful--that what these officers are saying in the way the questions and things and telling me what they already know, is like the one officer told us, is that it's a ruse. [¶] What's a ruse? A ruse is a lie. It's a lie to get you to talk. And I'll tell you part of it that was a lie, because of further evidence that came out or didn't come out was, remember, the one part he said, Mr. Neal, he said we have been watching you for a long time. People are coming in and out of here, cars all over the place. We know you're dealing. [¶] Where's the evidence of that?" Counsel also cautioned the jury: "But when the officers start lying about what they know or don't know . . . It's a ruse. It's a lie. And it isn't evidence that you can consider on the issues before you, possession for the purpose of sale."
Counsel further argued, "[B]ut if an officer sits there and says, Well, we saw millions of people coming in, and the defendant is saying to them, I don't know how you could[] [have] done that. There wasn't anybody coming in. So what have you heard, all these millions of people coming in, is that good evidence? That's horrible evidence. It's garbage evidence. It's just what the officer is saying. He's lying. He's embellishing. He's exaggerating for the purpose of doing what? Getting this guy to talk." Given counsel's arguments in closing, added to the officers' admission to ruse techniques and defendant's testimony that he knew the officers were not telling him the truth, it is not likely the jury relied on the officer's statements as evidence of possessing the drugs for sale.
The evidence, moreover, established that defendant often hosted numerous individuals who admitted to previously using drugs and some who even openly smoked marijuana or took prescription pills at his home. Thus, the officer's statement during the interview that drug convicts has been seen frequenting defendant's home during the surveillance was merely cumulative of other evidence admitted during trial.
Considering the totality of the circumstances, including other properly admitted evidence, we cannot say that but for counsel's errors, the result would have been different. (Ledesma, supra, 43 Cal.3d at pp. 216-218.) Even if the court would have sustained an objection to the officers' recorded statements we are confident the outcome would have been the same. (Bolin, supra, 18 Cal.4th at p. 333.)
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MAURO, J. DUARTE, J.