Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF120562A. Clarence Westra, Jr., Judge.
James Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carolos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
Appellant Dorothy Rainwater was charged and convicted of count I, felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and count II, misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), and placed on probation. On appeal, appellant contends the prosecutor committed prejudicial misconduct because her closing argument purportedly reduced the reasonable doubt burden of proof and denigrated defense counsel, and the trial court should have granted appellant’s motion for new trial based upon such misconduct. We will affirm.
FACTS
Around 1:30 a.m. on September 7, 2007, Kern County Sheriff’s Deputy Eric Jackson was on patrol in the Oildale area when he saw a Honda Accord, which lacked front and rear license plates, traveling at a high rate of speed. Jackson followed and paced the vehicle, and determined it was traveling 70 miles-per-hour in a 45 miles-per-hour zone.
Deputy Jackson performed a traffic stop of the vehicle, which contained a driver and front seat passenger, and asked them for identification. The driver identified himself as David Polson but handed over identification with another name. Jackson determined the vehicle was registered to Polson.
Appellant was sitting in the front passenger seat. Jackson testified that when he asked appellant for her identification, she leaned down and appeared to reach between her knees for something on the floorboard, and she produced her identification.
Jackson testified that when he contacted the occupants of the car, he immediately noticed both Polson and appellant displayed symptoms consistent with being under the influence of methamphetamine. Polson’s pupils were dilated, he was very fidgety, and he was sweating profusely. Appellant displayed similar symptoms – her pupils were dilated, her breathing rate was very fast, she was extremely fidgety with uncontrolled movements, she spoke very quickly, she was sweating profusely, and she had a very sour ether odor to her breath.
As Jackson spoke to Polson and appellant, he visually checked the vehicle’s interior to make sure there were no guns or weapons, and he noticed a black backpack on the front passenger-side floorboard, between appellant’s knees. The backpack was located in the general direction where appellant had reached to produce her identification.
Jackson asked Polson and appellant if they possessed drugs or drug paraphernalia. Polson did not respond. Appellant said she had hypodermic syringes and pointed to her breasts. Jackson called for a female deputy to search appellant. Deputy Cindy Bingham responded to the scene and searched appellant. Bingham found two hypodermic syringes, wrapped in tissue paper, which were inside appellant’s bra and under her breasts. Jackson testified the syringes were consistent with the type used to inject methamphetamine and other narcotics.
Jackson searched Polson and the driver’s side of the vehicle and did not find any contraband. The vehicle contained old stereo amplifiers, dirty shop towels, men’s clothing, car manuals, knives, and tools.
Bingham searched the front passenger side of the vehicle, where appellant had been sitting, and found the black backpack on the front passenger-side floorboard. Bingham opened the backpack and found a makeup bag. Bingham opened the makeup bag and found a clear plastic baggie which contained a substance which appeared to be methamphetamine.
Jackson did not see Bingham remove the methamphetamine from the makeup bag or the backpack. As he searched the driver’s side, Bingham motioned for Jackson to join her on the passenger side, and she showed him the small baggie. Jackson also believed the baggie contained methamphetamine, and noticed the baggie was wrapped within clear cellophane taken from a pack of cigarettes. It was later determined the baggie contained methamphetamine and weighed.12 grams.
Jackson testified there were assorted lipsticks, foundation, and makeup inside the makeup bag in which Bingham found the methamphetamine. The backpack contained women’s clothing and underwear, feminine hygiene products, moisturizers, a pink toothbrush and toothpaste, hair clips, and cotton balls. Jackson did not see anything in the backpack that could belong to or be used by a man, but the backpack was within Polson’s reach. Jackson asked Polson if the methamphetamine belonged to him, and Polson denied having any knowledge of it. Polson was arrested for several felony counts unrelated to the traffic stop.
Appellant was charged with felony possession of methamphetamine and misdemeanor possession of the syringes. At trial, appellant did not testify but defense counsel conceded in opening statement that she was guilty of the misdemeanor count. Appellant did not call any witnesses but defense counsel extensively cross-examined Jackson and challenged why Jackson did not have a camera in his patrol car to photograph evidence, and why Jackson did not seize the makeup bag or the black backpack. Defense counsel cross-examined Jackson as to his failure to request an examination of the plastic baggie and syringes for fingerprints, and why his report failed to list the feminine items and products which he observed in the black backpack. Defense counsel also cross-examined Jackson for failing to complete a “drug evaluation worksheet,” a form which states a seven-step test to evaluate a subject for being under the influence, or conduct field sobriety tests on appellant and Polson.
On redirect examination, Jackson explained he did not complete a “drug evaluation” sheet, conduct extensive field sobriety tests, or obtain a blood or urine sample from appellant, because appellant had already been arrested for misdemeanor possession of narcotics paraphernalia based on the syringes found on her body, and she also faced felony possession of the drugs found in the makeup bag. While Jackson testified appellant appeared under the influence, he did not pursue that additional charge because “there was already one punishment, [it] wouldn’t have been any different, it would have just taken away resources from us being out on the street, and... we didn’t feel it was relevant at the time to charge her with that and complete the evaluation.” As for fingerprints, Jackson testified he had tried to obtain prints from plastic baggies in the past and been completely unsuccessful, and he had talked to evidence technicians who reached the same conclusion. He did not believe the syringes needed to be checked for fingerprints because appellant admitted she had the items and they were found on her body.
DISCUSSION
I. The prosecutor’s argument and the reasonable doubt burden.
A series of cases have held that a trial court violates a defendant’s due process rights if it redefines the prosecution’s reasonable doubt burden by equating that burden with everyday decisionmaking in a juror’s life, and that such comparisons reduce the prosecution’s burden of proof even if the jurors ultimately receive the correct pattern instruction on reasonable doubt at the conclusion of the case. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35-37 (Nguyen); People v. Johnson (2004) 115 Cal.App.4th 1169, 1171-1172 (Johnson I); People v. Johnson (2004) 119 Cal.App.4th 976, 985-986 (Johnson II).)
The Johnson cases are not related but will be referred to as Johnson I and Johnson II for ease of reference.
Appellant contends the prosecutor herein committed misconduct and violated her due process rights because the prosecutor used a “traffic light” analogy during closing argument, and improperly compared the reasonable doubt burden to the everyday act of driving through an intersection with the green light. Appellant contends the prosecutor’s “traffic light” analogy reduced the prosecution’s burden of proving the charged offenses beyond a reasonable doubt. Appellant further contends she did not waive this purported misconduct even though she did not raise this specific objection during closing argument, because the prosecutor’s use of the analogy violated the court’s pretrial rulings on motions in limine not to use such an analogy.
Appellant’s prosecutorial misconduct arguments are based upon selected quotes from the prosecutor’s opening and rebuttal closing arguments. However, we must review the entirety of the record, including the relevant pretrial motions and the parties’ arguments taken in context, which demonstrates the prosecutor used the traffic light example to explain the difference between direct and circumstantial evidence, and her argument did not reduce the reasonable doubt burden.
A. Motions and preliminary instructions.
We begin with appellant’s motions in limine, which the court addressed on the first day of trial. Appellant moved for the court to prohibit the prosecutor from using “any analogy or comparison between events involving decisionmaking and the proof beyond a reasonable doubt standard,” because such an analogy would reduce the reasonable doubt burden and violate her due process rights. Appellant argued such comparisons were prohibited by Johnson I, supra, 115 Cal.App.4th 1169, which held the trial court violated the defendant’s due process rights when it misstated the prosecution’s burden of proof during jury voir dire by equating that burden with everyday decisionmaking in a juror’s life. (Id. at pp. 1171-1172.)
The trial court herein granted appellant’s motion and directed the attorneys “not to correlate the decisionmaking process on day to day issues with the decisionmaking process relative to the concept of reasonable doubt.” The court also granted appellant’s separate motion in limine, that she was not required to renew or make further objections to preserve issues already addressed by the court’s orders in the motions in limine.
There is no evidence the court made any statements during voir dire which deviated from the pattern instruction on reasonable doubt. After the jury was sworn, the court gave preliminary instructions, including the pattern language from Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 103, which correctly defined the prosecution’s burden of proof:
“Now 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.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received through the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.”
Neither the prosecutor nor defense counsel addressed the reasonable doubt burden in their opening statements.
B. The prosecutor’s closing argument.
In her closing argument, the prosecutor addressed the elements of the charged offenses of felony possession of methamphetamine and misdemeanor possession of the syringes, and argued there was no dispute that appellant possessed the syringes and knew what they were used for. The prosecutor argued the circumstantial evidence showed appellant knew of the presence and nature of the narcotics in the backpack, because she was under the influence of methamphetamine, she possessed syringes used to inject the drug, the backpack was found between her feet, the makeup bag was inside the backpack, and both bags contained women’s clothes, makeup, and other feminine items.
The prosecutor discussed the differences between direct and circumstantial evidence, and used the traffic light example to explain that circumstantial evidence was relevant to establish appellant’s knowledge of the nature and presence of the methamphetamine inside the makeup bag in the backpack.
“I want to talk to you for a minute about direct versus circumstantial evidence. The evidence here is circumstantial. But let me explain to you that circumstantial evidence is just as good as direct evidence. I like to use the traffic light example. I think it is something we can all – we all know what traffic lights are; right? But okay. You’re coming up to an intersection, you’re going this way. Traffic light’s green on your side. You can see it’s green. Now the other side cars are stopped; right? There’s people crossing the crosswalk going this way. Now you can’t – well, you can’t see that the light on this side is red. You know, there’s sun, whatever, glare, but the fact that the cars are stopped, the fact that people are walking, folks, that’s circumstantial evidence that the light on the side is red.
“Is that bad evidence? No. Not at all. I mean direct evidence would be seeing the light. But I mean you think about it, circumstantial evidence is just as good as direct evidence. Those people wouldn’t be stopped, hopefully people wouldn’t be walking across the crosswalk, right, cars are coming. There’s nothing wrong with circumstantial evidence.
“And in this case you know you’ve got plenty to consider for that possession and knowledge element. She’s under the influence of methamphetamine. You’ve got the syringes found in her breast. What is she doing with syringes? You know, why have the chopsticks without the Chinese food? You know, it’s – one goes with the other, folks.
“Why – I mean and the meth is found in her makeup bag. Tucked away inside her backpack, which is in front of her on the passenger floorboard, right there. There’s female items in that bag, no disputing that. It was her bag. There’s no reasonable doubt here, folks.
“The Judge is going to talk to you about reasonable doubt, and I’m sure he is. Reasonable doubt, as the Judge will tell you, is not free from all doubt. You can have some doubt and still convict. Nothing is ever a hundred percent; right? But there’s no reasonable doubt here.
“[Defense counsel] would like for you to think that there’s reasonable doubt, but let’s see. You’ve got the fact [appellant] is under the influence of meth. She’s got meth in her makeup bag, tucked away inside her backpack in front of her. She’s got syringes, admitted drug paraphernalia, in her breasts. Folks, there’s no reasonable doubt as to whose meth that was.” (Italics added.)
C. Defense counsel’s closing argument.
In his closing argument, defense counsel attacked Deputy Jackson’s investigation of the case because he failed to take photographs of or seize the makeup bag and backpack, conduct field sobriety tests, complete the drug influence worksheet to determine whether appellant was under the influence of methamphetamine, or submit the baggie and syringes for fingerprints. Counsel argued that Jackson was quick to assume appellant was under the influence, but he incorrectly assumed that appellant’s possession of the syringes meant she also possessed the drugs.
Defense counsel argued the prosecution’s entire case was undermined by Jackson’s failure to conduct a complete investigation and obtain such physical evidence:
“At the end of the day, since you haven’t been presented [with] the evidence the prosecution’s case completely hinges on, should we have an abiding conviction, and that’s the standard for beyond a reasonable doubt, that [appellant] possessed the methamphetamine when the government has not presented you with the concrete evidence they need? No. Absolutely not. We don’t convict people in this country based on assumptions, presumptions, and conjecture or guess. We just don’t do it. And I’m going to ask you to not do that.” (Italics added.)
Defense counsel continued with a discussion about reasonable doubt and circumstantial evidence.
“Before you rely on circumstantial evidence to conclude a fact necessary to find the defendant guilty [sic] has been proved, you must be convinced that the People have proved each fact to that conclusion beyond a reasonable doubt.
“Also, before you rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. This is critical.
“If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of the reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. Why? Because we don’t convict people in this country based on assumptions and presumption and guess.” (Italics added.)
Defense counsel argued the prosecution failed to present any evidence which linked appellant to the drugs, and the case was built on “assumptions, conjecture, and guess at this point.” Defense counsel recited the reasonable doubt standard from the pattern instruction, and argued an “abiding conviction... is something you would hold dear to your heart. There are two people in a car. There has been no concrete evidence presented to you. There is no abiding conviction in this case.”
“Ladies and gentlemen, this standard is the highest standard in our country in any case. If leaving court today you ran a red light and hit me in my car and I turned around and sued you for every dollar you had, okay, the standard of proof to protect you would be less than this standard. [¶] … [¶] This protects us, ladies and gentlemen. The end of the day if you find that [appellant] might be or may be guilty of this crime, you need to find her not guilty. If you find that [appellant] possibly could be guilty of this crime, find her not guilty. If you have a suspicion that the methamphetamine belonged to [appellant], you need to find her not guilty. If you find that likely the methamphetamine belonged to [appellant], you need to find her not guilty. If you find probably that the methamphetamine belonged to [appellant], you need to find her not guilty. Even if you have a strong suspicion that the methamphetamine belonged to [appellant], you need to find her not guilty.” (Italics added.)
Defense counsel asserted that if the jurors convicted appellant, they would be saying that they “unconditionally” trusted the government and the police “on their word.... The government doesn’t need to provide the concrete evidence they say they have located. They can just vouch for it.” Counsel argued an “unsupported accusation” cannot satisfy the “abiding conviction” standard.
D. The prosecutor’s rebuttal argument.
In rebuttal, the prosecutor challenged defense counsel’s assertions about the lack of physical evidence:
“Folks, I heard [defense counsel] say that our whole case hinges on what was found in the makeup bag. That’s only part of it. That’s not true. What was found in the makeup bag, that is the methamphetamine, yes. You heard other evidence. The syringes, being under the influence. Folks, that all relates to [appellant] knowing the methamphetamine’s presence.”
The prosecutor queried why someone would possess syringes without drugs, and asked the jury to look at the whole picture.
“As I said before, folks, well, I told you [defense counsel] was going to try and pin the meth on the driver? Well, let’s look at this. We heard that the driver’s arrested for unrelated felony charges. He was searched for drugs and paraphernalia. He didn’t have anything on him. His car was searched, you heard that.... Nothing was found.” (Italics added.)
The prosecutor argued the drugs were in the makeup bag, the syringes were inside appellant’s bra, and defense counsel’s assertion that the male driver had access to a woman’s makeup bag did not make sense.
The prosecutor also responded to defense counsel’s argument that the entire case rested on assumptions rather than evidence, and again explained the significance of the circumstantial evidence, that reasonable conclusions can be drawn from circumstantial evidence, and the circumstantial evidence of appellant’s possession of syringes and being under the influence led to the reasonable conclusion that the methamphetamine belonged to her. In doing so, the prosecutor returned to “traffic light” example she used in her initial closing argument:
“I also want to go back to my traffic light example. I think I can also kind of explain reasonable doubt to you a little more with that, too. Remember, traffic light, you got the green light going this way, cars are stopped on this side. Traffic going that way stopped. Got people in the crosswalk now. You can’t see that the light on this side is red. Remember, the glare from the sun. But, do you have any, any reasonable doubt that that light is red on that side? You can use the circumstantial evidence, cars are stopped, people crossing this way, your light is green. I mean, sure, I guess it’s possible that the lights on this side are green, too. Especially if you have a defense attorney in the back seat of your car. The lights may be malfunctioning, you don’t know that for sure, blah blah blah blah blah.
“[DEFENSE COUNSEL]: I object. That is improper argument, Your Honor.
“THE COURT: I don’t know that it’s argument. It’s illustrating a point, I think. [¶] Anyway, go ahead, counsel.
“[THE PROSECUTOR]: Thank you, Your Honor. [¶] My point, folks, is that do you have any reasonable doubt that the lights on this side are red? No. I mean I guess you can have some doubt. Everything in life is open to some doubt. Especially if you have a defense attorney in the back seat of your car; right? But, think about it. Is your doubt reasonable? No. You know those lights are red on this side. Come on.
“That’s like our case here. Is there any real reasonable doubt that she was possessing the methamphetamine? No. Her makeup bag in a backpack found right underneath her, with girlie clothing items, cotton balls, hair clips, all that stuff in there. She’s under the influence. She’s got syringes between her bra and her breasts.
“Do you have any reasonable doubt here? No. This is a very straightforward case.” (Italics added.)
After the prosecutor completed rebuttal argument, the court excused the jury and defense counsel objected to the prosecutor’s rebuttal argument and asserted it denigrated defense attorneys; appellant did not claim the prosecutor’s argument reduced the reasonable doubt burden. The court denied the objection.
E. Instructions.
On the day after the parties completed closing arguments, the court instructed the jury and gave the pattern instructions on direct and circumstantial evidence:
“Now facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testified he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining.
“Circumstantial evidence may also be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question. For example, if a witness testified that he saw someone coming inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.
“Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.
“Now before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of these reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.
“Now the People must prove not only that the defendant did the acts charged, but also that she acted with a particular mental state. The instruction for each crime explains the mental state required. A mental state may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the Peole have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also before you may rely on circumstantial evidence to conclude that the defendant had the required mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required mental state.” (Italics added.)
The court gave the pattern instructions on the presumption of innocence and the prosecution’s burden of proof beyond a reasonable doubt. The court also instructed that statements by the attorneys were not evidence. Thereafter, the jury was excused to begin deliberations.
While the jury was deliberating, appellant moved for a mistrial based on prosecutorial misconduct, asserted the prosecutor used closing argument to denigrate defense counsel for trying to create a reasonable doubt. Appellant did not argue that the prosecutor’s closing argument reduced the reasonable doubt burden. The court denied appellant’s motion for mistrial.
F. New trial motion.
After appellant was convicted, she filed a motion for new trial and for the first time asserted the prosecutor’s use of the “traffic light” example reduced the reasonable doubt burden, violated the court’s pretrial motion in limine ruling, improperly compared the reasonable doubt burden to everyday decisionmaking, and resulted in the violation of her due process rights as explained in the Johnson cases.
The court replied the prosecutor used the “traffic light” example to describe circumstantial evidence and not reasonable doubt. Defense counsel disagreed and argued it was an analogy which diluted the reasonable doubt burden based upon this court’s opinion in Johnson II. The court replied that both Johnson cases addressed inappropriate reasonable doubt explanations given by trial courts during voir dire, whereas the prosecutor herein used the traffic light example to explain circumstantial evidence. The court also questioned whether defense counsel preserved the reasonable doubt issue, because he only objected to the prosecutor’s “blah, blah” argument as improper and never claimed the prosecutor’s argument reduced the reasonable doubt burden. Defense counsel conceded he made a general objection during closing argument.
The court denied appellant’s motion for a new trial, found that defense counsel’s general objection during closing argument was not addressed to any reasonable doubt issues, and the prosecutor’s traffic light example addressed circumstantial evidence and did not reduce the reasonable doubt burden. The court further found that the prosecutor’s second discussion of the traffic light example during rebuttal argument was not the equivalent of the “real life” analogies prohibited by Nguyen and the Johnson cases, and did not reduce the reasonable doubt burden.
G. Analysis.
On appeal, appellant contends the prosecutor’s use of the traffic light example constituted misconduct because such an analogy reduced the burden of proof by equating reasonable doubt with a juror’s everyday decisionmaking. “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.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
“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, supra, 15 Cal.4th at p. 841.) The defendant’s failure to object or request an admonition is excused if either would be futile, or an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.)
As a preliminary matter, we note that appellant did not object to the prosecutor’s closing argument as reducing the reasonable doubt burden, and did not raise that specific claim until the new trial motion. However, the trial court’s rulings on appellant’s motions in limine preserved this issue for review, since the court ordered the attorneys not to equate reasonable doubt with everyday decisionmaking pursuant to Johnson I, and further ruled that appellant did not have to renew an objection regarding an issue addressed by the court’s rulings on the motions in limine. In addition, instructions or arguments which reduce the prosecution’s burden of proof potentially affect a defendant’s substantial rights, and such errors are not waived by the defendant’s failure to object. (Johnson I, supra, 115 Cal.App.4th at p. 1172; Johnson II, supra, 119 Cal.App.4th at pp. 984-985.)
Appellant’s prosecutorial misconduct argument is based upon a series of cases which prohibit trial courts from equating the prosecution’s reasonable doubt burden with jurors making decisions in their everyday lives. “Judicial attempts to clarify the meaning of the phrase ‘reasonable doubt’ by explanation, elaboration or illustration... more often than not tend to confuse or mislead.” (U.S. v. Pinkney (D.C. Cir. 1976) 551 F.2d 1241, 1244, fn. omitted.) In People v. Brannon (1873) 47 Cal. 96 (Brannon), the trial court instructed the jury that a guilty verdict was authorized if the evidence satisfied the jury of the accused’s guilt to a “‘certainty as would influence the minds of the jury in the important affairs of life.’” (Id. at p. 97.) Brannon held that equating proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life impermissibly lowered the burden of proof to that of a preponderance of the evidence, and reversed the judgment because the jury did not receive a proper description of the prosecution’s burden of proof beyond a reasonable doubt. (Ibid.)
In Nguyen, the prosecutor similarly made erroneous remarks about the reasonable doubt burden in closing argument:
“‘The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It’s a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes. [¶] So it’s a standard that you apply in your life. It’s a very high standard. And read that instruction, too. I won’t paraphrase it because it’s a very difficult instruction, but it’s not an unattainable standard. It’s the standard in every single criminal case.’” (Nguyen, supra, 40 Cal.App.4th at p. 35, italics added.)
Nguyen held the prosecutor trivialized the reasonable doubt standard when he argued that people apply a reasonable doubt standard “‘every day’ and that it is the same standard people customarily use in deciding whether to change lanes.” (Nguyen, supra, 40 Cal.App.4th at p. 36.) Nguyen “strongly disapprove[d]” of the prosecutor’s argument because it suggested “the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry.” (Ibid.) “It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]” (Ibid.)
Nguyen found the prosecutor committed misconduct but did not reverse the conviction because the defendant failed to object to the closing argument, an admonition would have cured the error, the trial court read the correct pattern instruction on reasonable doubt, the prosecutor also directed the jury to read the pattern instruction, all of which rendered the error harmless. (Nguyen, supra, 40 Cal.App.4th at pp. 36-37.)
In Johnson I, the trial court misstated the reasonable doubt standard during voir dire as follows:
“‘The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That’s certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but it’s a possibility. It’s not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn’t plan our live[]s ahead if we had a reasonable doubt that we would, in fact, be alive.’” (Johnson I, supra, 115 Cal.App.4th at p. 1171, italics added.)
In Johnson I, the Second District, Division 1 held the trial court’s remarks were erroneous and reduced the prosecution’s burden of proof: “We are not prepared to say that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors or that such people finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor. Nor can we say that people make such decisions while aware of the concept of ‘beyond a reasonable doubt.’” (Johnson I, supra, 115 Cal.App.4th at p. 1172.)
Johnson I reversed the defendant’s conviction because “the trial court’s attempt to explain reasonable doubt had the effect of lowering the prosecution’s burden of proof.” (Johnson I, supra, 115 Cal.App.4th at p. 1172.) While the defendant therein failed to object, Johnson I disagreed with Nguyen’s analysis that such an error can be waived or deemed harmless. Johnson I held the error was not waived because the defendant’s substantial rights were affected by the court’s erroneous statements during voir dire, even though the jury was otherwise properly instructed on the reasonable doubt burden. (Johnson I, supra, 115 Cal.App.4th at p. 1172.)
In Johnson II (a case unrelated to Johnson I), this court found the trial court improper departed from the pattern instruction on reasonable doubt during voir dire, when it engaged in lengthy exchanges with potential jurors as to whether they made decisions in their lives in which they had absolutely no doubt. The court “equate[d] proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life,” such as whether to have children, to leave home to attend college, and where to eat lunch. (Johnson II, supra, 119 Cal.App.4th at p. 981.) The trial court engaged in a lengthy exchange with one prospective juror where it equated reasonable doubt with driving through an intersection:
“‘Q. [Prospective juror], let me ask you a question first. You’re a good driver?
“‘A. Yeah.
“‘Q. How many years have you been driving?
“‘A. Five.
“‘Q. You’re still in the thinking stage after five years of driving. Been driving as long as I do, you don’t have a mind anymore when you’re behind a wheel. [¶] When you come to an intersection, the intersection controlled with lights and the light is green, what do you do[?][¶] What do you as a good driver do?
“‘A. Drive through, look for pedestrians.
“‘Q. What else do you do[?] [¶] [Prospective juror], are you a good driver?
“‘A. I guess when I want to be.
“‘Q. When you want to be. [¶] What do you do when you come to an intersection and the light is green?
“‘A. Look both ways.
“‘Q. Good. Look both ways. [¶] Have your foot on the gas, get ready to take it off if you have to. Anything could happen in the intersection. [¶] Am I right so far[?] [¶] Okay. As you get close to that intersection with the green light, actually take it off the gas, put it on the brake, stop, get out, walk around the front, look at the cross-traffic lights to make sure they’re red. [¶] Do you do that?
“‘A. No.
“‘Q. Is it possible those lights could malfunction, electrical mechanical malfunction?
“‘A. Possible.
“‘Q. Sure. If they malfunction, couldn’t there be a serious accident there? [¶] Why don’t you get out and check that?
“‘A. ‘Cause I guess I ain’t a good driver.
“‘Q. You don’t, because it is not
“‘A. Reasonable.
“‘Q. Very good, [prospective juror] – not reasonable. [¶] Everything you do, you can look at what’s reasonable and possible, and I tell you every decision you make along in your life are [sic] based on – that human beings-power of reason – something animals don’t have. [¶] So we have that power of reason, and with that we can make these decisions along the way. [¶] So that’s – that’s not a definition of reasonable doubt, but that’s what we want you to bring to court with you, the same thing you use every day in making your decision[s]. [¶]... [¶] We found out now what you have to do. Go back to the jury room and figure out what happened beyond a reasonable doubt, not beyond all possible doubt. [¶] But the first thing you have to decide as jurors is: Is what happened beyond a reasonable doubt, because you are never going to know what really happened beyond all possible doubt, nor am I. We weren’t there.’” (Johnson II, supra, 119 Cal.App.4th at pp. 981-982, italics added.)
Johnson II found the trial court further misstated the reasonable doubt standard when it told the potential jurors: “‘If there is no doubt in your mind, then I can tell you you were brain dead during the trial – you are brain dead. That’s not going to happen.’” (Johnson II, supra, 119 Cal.App.4th at p. 980.) When one prospective juror acknowledged difficulty in passing moral judgments on others, the trial court instructed the panel that jurors were not to “‘pass a moral judgment’ but [were] simply to make the ‘kind of decisions you make every day in your life,’” and figure out what happened and whether or not the defendant was guilty. (Id. at pp. 982-983.)
Johnson II reversed the defendant’s conviction and held that even though the jury ultimately received the correct pattern instruction on reasonable doubt, the trial court’s lengthy and erroneous statements during voir dire amounted to “tinkering with the statutory definition of reasonable doubt, [and] no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt. [Citations.]” (Johnson II, supra, 119 Cal.App.4th at pp. 985-986.) Johnson II held the impact of the trial court’s voir dire statements was compounded when the prosecutor “took his cue” and reiterated the court’s erroneous examples during closing argument – the prosecutor characterized a juror who could return a guilty verdict without “‘some doubt’” as to the defendant’s guilt as being “‘brain dead,’” and equated proof beyond a reasonable doubt to everyday decisionmaking. (Johnson II, supra, 119 Cal.App.4th at p. 983.)
Johnson II further held that even though the defendant failed to object to the trial court’s statements during voir dire as reducing the reasonable doubt burden, the defendant did not waive the error because the court’s erroneous definition of reasonable doubt affected his substantial rights. (Johnson II, supra, 119 Cal.App.4th at pp. 984-985.)
In the instant case, appellant contends the prosecutor’s use of the “traffic light” example in closing argument was exactly the type of analogy prohibited by Nguyen and the Johnson cases, it was identical to the driving analogy used by the trial court in Johnson II, and such argument reduced the prosecution’s reasonable doubt burden.
While appellant may have preserved this issue for review, such a conclusion does not mean the prosecutor’s argument necessarily violated the court’s order on the motion in limine or reduced the burden of proof. In contrast to extreme examples contained in the Nguyen and the Johnson cases, the trial court herein did not misstate the reasonable doubt burden during voir dire or the instructional phase, and the jury received the correct pattern instruction on reasonable doubt. Instead, appellant’s argument is solely based upon the prosecutor’s closing argument.
It is improper for the prosecutor to misstate the law generally, and particularly to misstate the prosecution’s burden of proving every element of the crime charged beyond a reasonable doubt. (People v. Hill, supra, 17 Cal.4th at pp. 829-830.) However, the entirety of the prosecutor’s argument, taken in context of the disputed issues in the case, refutes appellant’s characterization of the traffic light example as reducing the burden of proof.
Appellant was charged with felony possession of methamphetamine and misdemeanor possession of the syringes. In his opening statement, defense counsel conceded appellant was guilty of possession of the syringes, and counsel repeated this concession in closing argument. Thus, the contested issue was whether appellant was guilty of possession of the methamphetamine found in the makeup bag contained within the backpack. During the trial, appellant did not call any witnesses but defense counsel extensively cross-examined Deputy Jackson about his failure to take various steps during his investigation of this case, including why Jackson did not have a camera in his patrol car to photograph the backpack, the makeup bag, and the contents of both items; he did not seize the makeup bag or the black backpack; he did not request an examination of the plastic baggie or the syringes for fingerprints; his report failed to list the feminine items he observed in the backpack and makeup bag; and he did not conduct extensive field sobriety tests to determine whether appellant was under the influence of narcotics. Defense counsel continued with this strategy in closing argument, and asserted there was no physical evidence that appellant possessed the methamphetamine, the backpack, or the makeup bag.
The prosecutor anticipated defense counsel’s strategy when she used the traffic light analogy in her initial closing argument. In doing so, however, the prosecutor did not equate a driver’s observations of red and green lights, or driving through an intersection, with the reasonable doubt burden, as found impermissible in Johnson II. Instead, the prosecutor used the traffic light example to explain the difference between direct and circumstantial evidence, that circumstantial evidence can be used to prove the facts in the case, and there was circumstantial evidence that appellant possessed the drugs, based upon her admitted possession of the syringes, the presence of the drugs in the makeup bag, the feminine articles in the makeup bag and backpack, and the location of the backpack on the passenger-side floorboard where appellant had been sitting.
It is well settled that circumstantial evidence may be sufficient to connect a defendant with the crime and to prove the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) “‘Circumstantial evidence is that which is applied to the principal fact, indirectly, or through the medium of other facts, from which the principal fact is inferred. The characteristics of circumstantial evidence, as distinguished from that which is direct, are, first, the existence and presentation of one or more evidentiary facts; and, second, a process of inference, by which these facts are so connected with the fact sought, as to tend to produce a persuasion of its truth.’ [Citation.]” (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.) “Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference.” (People v. Anderson (2007) 152 Cal.App.4th 919, 931.)
A court has a sua sponte duty to instruct on the principles of circumstantial evidence when the prosecution substantially relies on circumstantial evidence to prove guilt. (People v. Rogers (2006) 39 Cal.4th 826, 885.) As set forth ante, the jury herein received the correct pattern instructions on direct and circumstantial evidence, CALCRIM Nos. 223, 224, and 225. These instructions reiterate “that each fact necessary for the conviction must be proved beyond a reasonable doubt.” (People v. Anderson, supra, 152 Cal.App.4th at p. 931.) Moreover, CALCRIM No. 224 limits “the use of circumstantial evidence in establishing such proof. It cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it point to the defendant’s guilt.” (Anderson, at p. 931.) The California Supreme Court has repeatedly declared that when the circumstantial evidence instructions are read in conjunction with the reasonable doubt instruction, and viewed as a whole, they do not undermine the instructions on the presumption of innocence and the standard of proof beyond a reasonable doubt, and they do not impermissibly create a mandatory conclusive presumption of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1054; People v. Millwee (1998) 18 Cal.4th 96, 160.)
The prosecutor’s use of the traffic light example in her initial closing argument was aimed at explaining the importance of circumstantial evidence in the case, and made in light of the obvious defense strategy to undermine the reliability of Deputy Jackson’s investigation and the lack of direct evidence that appellant possessed the drugs. Moreover, the jury was properly instructed on the consideration of direct and circumstantial evidence, and the relationship of such evidence to reasonable doubt.
As set forth ante, defense counsel used his closing argument to assail Deputy Jackson’s investigation. Counsel asserted the prosecution failed to present direct evidence of possession and instead relied upon assumption and conjecture. In rebuttal, the prosecutor returned to the traffic light example and again used it to illustrate how circumstantial evidence can be used to prove the facts in the case beyond a reasonable doubt:
“I also want to go back to my traffic light example. I think I can also kind of explain reasonable doubt to you a little more with that, too. Remember, traffic light, you got the green light going this way, cars are stopped on this side. Traffic going that way stopped. Got people in the crosswalk now. You can’t see that the light on this side is red. Remember, the glare from the sun. But, do you have any, any reasonable doubt that that light is red on that side? You can use the circumstantial evidence, cars are stopped, people crossing this way, your light is green. I mean, sure, I guess it’s possible that the lights on this side are green, too. Especially if you have a defense attorney in the back seat of your car. The lights may be malfunctioning, you don’t that for sure, blah blah blah blah blah.” (Italics added.)
In issue II, post, we will address appellant’s contention that the prosecutor’s “blah, blah” phrase denigrated defense counsel’s integrity and the defense strategy.
Defense counsel objected, but the court overruled the objection because the argument was being used to illustrate a point. The prosecutor continued with the discussion:
“My point, folks, is that do you have any reasonable doubt that the lights on this side are red? No. I mean I guess you can have some doubt. Everything in life is open to some doubt. Especially if you have a defense attorney in the back seat of your car; right? But, think about it. Is your doubt reasonable? No. You know those lights are red on this side. Come on.
“That’s like our case here. Is there any real reasonable doubt that she was possessing the methamphetamine? No. Her makeup bag in a backpack found right underneath her, with girlie clothing items, cotton balls, hair clips, all that stuff in there. She’s under the influence. She’s got syringes between her bra and her breasts.
“Do you have any reasonable doubt here? No. This is a very straightforward case.”
The prosecutor’s use of the traffic light example in rebuttal argument did not involve the type of analogies prohibited by Nguyen and the Johnson cases. Instead, the prosecutor again used the example to explain that circumstantial evidence can be relied upon to prove the facts in the case, and to refute defense counsel’s claim that the entire case was based upon assumptions and conjecture. More importantly, however, the jury was properly instructed on the reasonable doubt burden and use of circumstantial evidence in relation to reasonable doubt.
At oral argument, respondent stated the prosecutor’s reference to the traffic light analogy in rebuttal argument might have referred to the reasonable doubt burden, but that any misconduct was necessarily harmless given the entirety of the record. Also at oral argument, appellant acknowledged that her claims of prosecutorial misconduct required reversal only if she could show prejudice.
“A defendant’s conviction will not be reversed for prosecutorial misconduct unless it is reasonably probable that the jury would have reached a result more favorable to the defendant had the misconduct not occurred. [Citation.]” (People v. Zambrano (2004) 124 Cal.App.4th 228, 243.) When a prosecutorial misconduct 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, supra, 15 Cal.4th at p. 841.)
Even assuming without deciding, that the prosecutor’s brief rebuttal reference to the traffic light analogy constituted misconduct, it is not reasonably probable that a result more favorable to appellant would have been reached in the absence of that argument, and any error is necessarily harmless under any standard. As we have already explained, the prosecutor’s rebuttal comments, considered in the context of the entirety of both parties’ closing arguments, sought to explain that circumstantial evidence could be relied upon in determining whether the prosecution had proved the charged offenses beyond a reasonable doubt. Moreover, the prosecutor’s reference to the traffic light analogy in rebuttal argument cannot be compared to the egregious circumstances in the Johnson cases, where the trial court repeatedly gave erroneous explanations about the meaning of reasonable doubt. In those situations, the trial court’s belated reading of the correct instruction on reasonable doubt could not overcome the court’s painstaking and erroneous attempts to redefine the phrase. Finally, the prosecution’s case against appellant was extremely strong, since she conceded possession of the syringes, the narcotics were secreted in a bag that was placed on the passenger-side floorboard between her legs, she reached into that same bag and produced her identification, and that bag only contained articles of a purely feminine nature.
We thus conclude the prosecutor did not commit misconduct in closing argument when she used the traffic light example to discuss circumstantial evidence, such argument did not involve the gross misstatement of the prosecution’s burden of proof as prohibited by Nguyen and the Johnson cases, and any error is necessarily harmless.
II. Prosecutorial misconduct; closing arguments about defense counsel and the defense strategy.
Appellant raises a separate prosecutorial misconduct argument based upon the prosecutor’s closing argument about defense counsel and the defense strategy. Appellant asserts the prosecutor improperly denigrated defense counsel’s integrity, accused counsel of lying about the case, and also accused counsel of using misleading and improper tactics to obtain an acquittal of the felony possession charge. As with appellant’s previous prosecutorial misconduct contentions, we must review the entirety of the record to demonstrate that the prosecutor did not commit misconduct during closing argument.
A. Pretrial motions.
On the first day of trial, after the court addressed the motions in limine, defense counsel advised the court that he also filed a motion to exclude the syringes seized from appellant, and that appellant intended to plead guilty to count II, misdemeanor possession of narcotics paraphernalia. The prosecutor objected to appellant’s motion and plea request, and argued the syringes were relevant to the felony possession charge as circumstantial evidence of appellant’s knowledge of the presence and nature of the methamphetamine found in the backpack.
The court stated appellant’s motion was “just an exercise in game playing, and that’s not what this courtroom was built for. So if you have something you want to accomplish, you can do it, but I’m not engaging in your games [sic] playing.” The court further stated that if appellant pleaded to the misdemeanor, she could not gain an advantage from doing so by obtaining exclusion of the syringes. The court denied appellant’s motion to exclude the syringes, held appellant’s plea offer should have been addressed at an earlier stage, and stated the jury trial would proceed on the two counts in the information.
In his opening statement, defense counsel stated that appellant conceded she was guilty of count II, misdemeanor possession of narcotics paraphernalia, based on the syringes found on her body.
B. The closing arguments.
As already noted ante, in closing argument, the prosecutor argued the circumstantial evidence showed appellant knew of the presence and nature of the narcotics in the backpack, because she was under the influence of methamphetamine, she possessed syringes used to inject the drug, the backpack was found between her feet, the makeup bag was inside the backpack, and both bags contained women’s clothes, makeup, and other feminine items.
The prosecutor also used her argument to anticipate the defense theory that the driver possessed the narcotics:
“Now [defense counsel] is probably going to argue that the methamphetamine was the driver’s. Let’s talk about that real quick. Driver’s not charged with drug possession. They searched him.… They didn’t find drugs on him or anywhere near the driver area.
“Now while it is true he may have had access to lean over to the backpack, think about it. When you open up the backpack you don’t see the meth. It is tucked away inside the makeup bag…. Among lipstick, foundation. Whose do you think that is?
“Common sense, folks. One thing I can’t stress enough here is don’t check your common sense at the front door. Things are usually what they seem. This is exactly what it seems.
“Now you’re probably wondering why [appellant would] admit to the syringes, not dispute that, and dispute the meth? Think about it. This is a misdemeanor. The drugs are a felony. If you were – I mean she can’t really dispute the misdemeanor, it was kind of
“[DEFENSE COUNSEL]: I object to this argument. Improper.
“THE COURT: Well, ladies and gentlemen, keep in mind, you’re asked to resolve whether count one has been proved by the evidence or the evidence falls short of proving that or whether count two is proved by the evidence or the evidence falls short of that. It is material for your consideration how these offenses might be categorized. You’re asked to decide the facts in the case. Please keep that in mind.
“[THE PROSECUTOR]: Think about it, folks, if you were in trouble with both felony and misdemeanor, which one would you not want to get in trouble for the most? The felony. Can you really dispute the misdemeanor in this case when the syringes are found in your breast and you tell the deputy they’re in your breast. You can’t really dispute that. It’s pretty much – it is what it is.
“Of course, she doesn’t want to sit there and admit to felony methamphetamine. That is a felony, folks. She figures if I can get away with just a misdemeanor, I’ll try and beat the felony. That’s not uncommon.” (Italics added.)
The prosecutor acknowledged the driver was also under the influence, but suggested appellant shared the drugs with the driver because the driver did not possess narcotics or syringes.
As explained in issue I, ante, defense counsel used his closing argument to again state that appellant admitted possession of the syringes as charged in count II. Counsel argued the vehicle was registered to the driver, the driver showed a false identification and was arrested for multiple unrelated felonies, and the evidence showed the driver’s propensity to lie, whereas appellant immediately admitted possession of the syringes.
Also as explained ante, defense counsel asserted Deputy Jackson failed to fully investigate the case and there was no direct evidence to connect appellant to the drugs found in the makeup bag. Counsel argued Jackson merely assumed appellant possessed the methamphetamine, the prosecution failed to present any direct evidence to connect appellant to the drugs, and the case was built on “assumptions, conjecture, and guess at this point.”
In rebuttal, the prosecutor challenged defense counsel’s assertions about the lack of evidence in the case:
“Folks, I heard [defense counsel] say that our whole case hinges on what was found in the makeup bag. That’s only part of it. That’s not true. What was found in the makeup bag, that is the methamphetamine, yes. You heard other evidence. The syringes, being under the influence. Folks, that all relates to [appellant] knowing the methamphetamine’s presence.” (Italics added.)
The prosecutor queried why someone would possess syringes without drugs, and asked the jury to look at the whole picture.
“As I said before, folks, well, I told you [defense counsel] was going to try and pin the meth on the driver? Well, let’s look at this. We heard that the driver’s arrested for unrelated felony charges. He was searched for drugs and paraphernalia. He didn’t have anything on him. His car was searched, you heard that.... Nothing was found.” (Italics added.)
The prosecutor argued the drugs were in the makeup bag, the syringes were inside appellant’s bra, and defense counsel’s assertion that the male driver had access to a woman’s makeup bag did not make sense.
The prosecutor also challenged defense counsel’s criticisms of Deputy Jackson’s failure to conduct field sobriety tests and complete the “under the influence” worksheet to determine if appellant was intoxicated:
“[Defense counsel] really wanted to attack Deputy Jackson’s under the influence analysis. Folks, the only reason that was introduced was to help show you [appellant] possessed methamphetamine and knew it was there. One who’s under the influence of methamphetamine is more likely to possess it than one who is not; right? That is only logical.
“Deputy Jackson didn’t charge her with being under the influence, so all this blah, blah, blah about this test wasn’t done and that test wasn’t done, blah, blah, blah, who cares? She wasn’t charged with it.
“Now if she was charged with it, of course, that would be relevant. That is, if you’re charged with it. Deputy Jackson told you he didn’t charge her with it. That’s exactly why he didn’t do those tests.” (Italics added.)
The prosecutor asserted it was logical that appellant possessed the methamphetamine because she also possessed the syringes and appeared under the influence. “The syringes [are] just another piece of the puzzle.”
The prosecutor moved on to defense counsel’s assertion that appellant cooperated when she admitted possession of the syringes:
“[Defense counsel]... hit on the fact that [appellant’s], oh, she’s cooperative about the misdemeanor charges. Well, of course, how does she plan on beating that when the syringes are found in her breasts? Of course. You know, she figures she has a better shot at beating the felony so she tries to beat that. Is that unheard of? No. Not at all.” (Italics added.)
The prosecutor also responded to defense counsel’s argument that the entire case rested on assumptions rather than evidence, and again explained the significance of the circumstantial evidence, that reasonable conclusions can be drawn from circumstantial evidence, and the circumstantial evidence of appellant’s possession of syringes and being under the influence led to the reasonable conclusion that the methamphetamine belonged to her.
As we have already noted ante, defense counsel’s only objection during rebuttal argument occurred when the prosecutor again used the “traffic light” example to explain circumstantial evidence.
“I also want to go back to my traffic light example. I think I can also kind of explain reasonable doubt to you a little more with that, too. Remember, traffic light, you got the green light going this way, cars are stopped on this side. Traffic going that way stopped. Got people in the crosswalk now. You can’t see that the light on this side is red. Remember, the glare from the sun. But, do you have any, any reasonable doubt that that light is red on that side? You can use the circumstantial evidence, cars are stopped, people crossing this way, your light is green. I mean, sure, I guess it’s possible that the lights on this side are green, too. Especially if you have a defense attorney in the back seat of your car. The lights may be malfunctioning, you don’t know that for sure, blah blah blah blah blah.
“[DEFENSE COUNSEL]: I object. That is improper argument, Your Honor.
“THE COURT: I don’t know that it’s argument. It’s illustrating a point, I think. [¶] Anyway, go ahead, counsel.
“[THE PROSECUTOR]: Thank you, Your Honor. [¶] My point, folks, is that do you have any reasonable doubt that the lights on this side are red? No. I mean I guess you can have some doubt. Everything in life is open to some doubt. Especially if you have a defense attorney in the back seat of your car; right? But, think about it. Is your doubt reasonable? No. You know those lights are red on this side. Come on.
“That’s like our case here. Is there any real reasonable doubt that she was possessing the methamphetamine? No. Her makeup bag in a backpack found right underneath her, with girlie clothing items, cotton balls, hair clips, all that stuff in there. She’s under the influence. She’s got syringes between her bra and her breasts.
“Do you have any reasonable doubt here? No. This is a very straightforward case.” (Italics added.)
C. Subsequent motions.
As explained ante, after the prosecutor completed rebuttal argument, the court excused the jury and defense counsel objected to the prosecutor’s rebuttal argument about defense attorneys. Defense counsel argued the prosecutor improperly argued that “just because somebody is a defense lawyer, they lie for a living.” The court replied that it did not hear the prosecutor use such language, and a lengthy exchange ensued as defense counsel insisted that the prosecutor accused him of lying. The court against replied that it did not hear the prosecutor make such statements or any type of derogatory comments about the defense, and overruled appellant’s objections.
While the jury was deliberating, defense counsel moved for a mistrial based on prosecutorial misconduct, and requested production of the closing argument transcript to show the prosecutor accused defense counsel of lacking integrity and lying about the evidence. The prosecutor objected to appellant’s motion and argued she never denigrated defense counsel’s integrity or accused him of lying. The prosecutor asserted she only addressed a defense attorney’s general function of trying to create a reasonable doubt, but she did not specifically accused appellant’s counsel of any misconduct.
Defense counsel acknowledged that the court reporter reviewed the trial notes, and they could not find any place in the record where the prosecutor accused counsel of lying. However, defense counsel argued the prosecutor committed misconduct by accusing a defense attorney of trying to create a reasonable doubt.
The court denied appellant’s motion for mistrial, again stated that the prosecutor did not accuse defense counsel of lying, and declined to find the prosecutor’s other remarks were demeaning. The court acknowledged defense counsel objected to the prosecutor’s argument about having a defense attorney in the back seat of a car to second-guess everything, but found the prosecutor was illustrating the point as to whether a police officer has to do everything that “somebody after the fact could think of. That appears to be perhaps appropriate argument.”
D. New trial motion
Also as explained ante, appellant filed a motion for new trial and asserted the prosecutor committed misconduct by reducing the reasonable doubt burden in closing argument. Appellant’s motion also asserted the prosecutor improperly denigrated defense counsel’s integrity and strategy, when she discussed how a defense attorney in the backseat of a car would dispute whether the traffic light was red or green.
At the hearing on the new trial motion, the court found the prosecutor’s reference to a defense attorney being in the backseat of a car was “clearly talking about a backseat driver, equating you as an attorney, apparently, to some sort of backseat driver that can always find a reason – defense attorney, backseat driver can always find a reason why something shouldn’t be the way it obviously is. That was the only context of what her argument was.” The court thought the prosecutor could have made the argument in a different way and “it was unusual when she was using the terminology blah, blah, blah, blah.”
Defense counsel asserted the prosecutor’s “blah, blah” phrase was inflammatory because it insinuated the defense theory was nonsense, especially coupled with the prosecutor’s remark about the defense attorney in the backseat of the car. Counsel argued the prosecutor’s intent was to improperly claim a defense attorney’s job was to muddy the waters and create reasonable doubt.
The prosecutor replied that her argument merely pointed out that it was a defense attorney’s job to hold the prosecution to the burden of proof and raise a reasonable doubt. The prosecutor thought she could have said “et cetera” instead of “blah, blah,” but she used the phrase because she “didn’t want to sit there and say everything else that he could argue,” and she did not intend any disrespect to the defense.
The court denied appellant’s new trial motion, found the entirety of the prosecutor’s argument constituted vigorous and appropriate advocacy, and the prosecutor did not demean defense counsel. While the prosecutor could have made the “blah, blah” comments in a different way, the court found the comments were not made “for the purpose of demeaning anyone. It wasn’t said in that way. But it was said in a fashion such to suggest that one can find any number of things to question about in any situation.” The court found the prosecutor’s comments sought to refute defense counsel’s argument that the entire case rested on assumptions.
The court also found the prosecutor did not commit misconduct when she referred to a defense attorney being in the backseat and challenging whether the traffic signal was red or green. Instead, the prosecutor’s argument suggested “that someone in the backseat can always have questions about everything... and that backseat drivers, for whatever reason,... are people that we generally think are bringing things up about the driver’s driving,” they make suggestions and tell the driver what to do, and “we don’t pay a whole lot of attention to them.” The court characterized the prosecutor’s comments as “a lighthearted argument to suggest that what’s been suggested here is nothing more than bringing to the attention of you these things.”
E. Analysis.
Appellant contends the prosecutor committed misconduct and demeaned defense counsel when she used the “blah, blah” phrase, accused counsel of using misleading tactics by conceding guilt on the misdemeanor, denigrated counsel’s integrity when she said that counsel wanted the jury to think there was reasonable doubt and pin the drugs on the driver, and accused counsel of lying when she refuted counsel’s claim that the prosecution’s case lacked direct evidence.
As with appellant’s first assignment of prosecutorial misconduct, we note that appellant did not object to most of the points which she now claims constituted misconduct. During the prosecutor’s initial closing argument, defense counsel objected when the prosecutor criticized the defense tactic of admitting the misdemeanor and trying to “beat” the felony charge. The court overruled the objection but admonished the jury to decide the facts as to both charges. During the prosecutor’s rebuttal argument, defense counsel raised an objection for improper argument when the prosecutor again used the traffic light example and repeated the “blah, blah” phrase. The court overruled the objection and found the prosecutor was merely illustrating a point.
Appellant asserts she was not required to object to all aspects of the prosecutor’s closing argument which purportedly demeaned defense counsel because the court’s ruling on the first objection indicated that further objections would be futile. However, there is no evidence that objections or requests for admonishments on these points would have been futile, or that the court would have overruled valid objections or otherwise discouraged defense counsel from taking action. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 432 [claims of prosecutorial misconduct are not forfeited if an admonition would not have cured the harm, or an objection would have been futile]; People v. Hillhouse (2002) 27 Cal.4th 469, 501-502 [failure to object may be excused in extreme cases in which “defense counsel had repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile”].)
In any event, appellant’s prosecutorial misconduct arguments are meritless. “‘It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.’ [Citation.] ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’” [citation], and he may “use appropriate epithets warranted by the evidence.”’ [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 567-568.)
It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense or to imply that counsel is free to deceive the jury. (People v. Bemore (2000) 22 Cal.4th 809, 846.) “When a prosecutor denigrates defense counsel, it directs the jury’s attention away from the evidence and is therefore improper. [Citation.] In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor’s comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 978, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account. (See People v. Frye [,supra, ] 18 Cal.4th [at pp.] 977-978... [no misconduct where prosecutor accused counsel of making an ‘“irresponsible”’ third party culpability claim]; People v. Medina (1995) 11 Cal.4th 694, 759... [no misconduct where prosecutor said counsel can ‘“twist [and] poke [and] try to draw some speculation, try to get you to buy something”’].) In so doing, the prosecutor may highlight the discrepancies between counsel’s opening statement and the evidence. [Citation.] Misconduct claims also have been rejected where the prosecutor anticipates the flaws likely to appear in counsel’s closing argument based on evidence that was introduced [citation], and where the prosecutor criticizes the defense theory of the case because it lacks evidentiary support [citation].” (People v. Bemore, supra, 22 Cal.4th at pp. 846-847, second, third, eighth, ninth & 10th bracketed insertions added.) “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47 (Cummings).)
There are numerous cases which have rejected misconduct claims based upon closing arguments far more inflammatory than anything said in this case. For example, in Cummings, the court found the prosecutor did not commit misconduct when he argued that “‘a skillful lawyer, a lawyer that is persuasive as [defense counsel] is, could maybe get [a witness] to say almost anything.’” (Cummings, supra, 4 Cal.4th at p. 1303.) Cummings held such an argument was a comment on that witness’s confusion and difficulty in understanding and responding to questions, rather than an assertion that defense counsel sought to elicit perjured testimony from the witness. (Ibid.)
Cummings also held the prosecutor did not commit misconduct when he pointed out the defendant’s failure to present certain records as evidence and argued: “‘Does this tell us a little something about the ink and octopus and what is going on at the other end of the table. I think it should.’” (Cummings, supra, 4 Cal.4th at p. 1302, fn. 46.) The prosecutor added: “‘Does that make you wonder what they are doing down there? They are supposed to do that. That is their job. [¶] They are trying to get this man off.’” (Ibid.) The court found the prosecutor did not commit misconduct because the context of the statement was “such that the jury certainly would understand it to be nothing more than urging the jury not to be misled.” (Id. at p. 1302; see also People v. Marquez (1992) 1 Cal.4th 553, 575-576 [prosecutor’s reference to defense as “smokescreen” not misconduct]; People v. Young (2005) 34 Cal.4th 1149, 1193 [prosecutor’s characterization of defense counsel’s argument as “‘idiocy’” was fair comment on counsel’s argument].)
In People v. Stanley (2006) 39 Cal.4th 913, the court found the prosecutor did not commit misconduct when he argued that defense counsel “‘imagined things that go beyond the evidence’ and told them a ‘bald-faced lie.’” (Id. at p. 952.) Stanley found the remarks were merely responsive to defense counsel’s argument, and further found “[t]he prosecutor’s argument, although intemperate in tone, did little more than urge the jury not to be influenced by counsel’s arguments, and to instead focus on the testimony and evidence in the case. [Citation.]” (Ibid.)
In People v. Zambrano (2007) 41 Cal.4th 1082 (Zambrano) (overruled on another point in People v. Doolin, supra, 45 Cal.4th 390, 421, fn. 22), the defendant argued the prosecutor committed misconduct in closing argument by disparaging defense counsel’s argument “as a ‘lawyer’s game’ and an attempt to confuse the jury by taking the witness’s statement out of context,” based on a prosecution witness who may have misspoke about a particular point. (Zambrano, at p. 1154.) Zambrano held the defendant forfeited the issue by failing to object, but also found the prosecutor did not commit misconduct or “engage in such forbidden tactics as accusing defense counsel of fabricating a defense or factually deceiving the jury. [Citations.] He simply used pungent language to describe defense counsel’s tactical effort to exploit what the prosecutor considered a slip of the tongue by a People’s witness.” (Ibid.) Zambrano further held:
“It was clear the prosecutor’s comment was aimed solely at the persuasive force of defense counsel’s closing argument, and not at counsel personally. We have found no impropriety in similar prosecutorial remarks. (E.g., [People v.] Stitely [2005] 35 Cal.4th 514, 559-560... [argument that jurors should avoid ‘“fall[ing] for”’ defense counsel’s ‘“ridiculous”’ and ‘“outrageous”’ attempt to allow defendant to ‘“walk” free’ by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216... [argument that defense counsel was talking out of both sides of his mouth and that this was ‘“great lawyering”’]; People v. Breaux (1991) 1 Cal.4th 281, 306-307... [argument that law students are taught to create confusion when neither the law nor the facts are on their side, because confusion benefits the defense]; People v. Bell (1989) 49 Cal.3d 502, 538... [argument that defense counsel’s job is to ‘“confuse[]”’ and ‘“throw sand in your eyes,”’ and that counsel ‘“does a good job of it”’].)” (Zambrano, supra, 41 Cal.4th at p. 1155, first & second bracketed insertions added.)
As illustrated by the cases discussed ante, the prosecutor’s closing argument in this case did not demean or denigrate the integrity of defense counsel or the defense strategy, and did not constitute misconduct. The prosecutor did not say appellant and defense counsel were liars. Instead, the prosecutor’s argument must be considered in the context of the defense theory, which was to challenge all aspects of Deputy Jackson’s investigation and assert that there was no evidence to connect appellant to the drugs found in the backpack. While the prosecutor’s use of the “blah, blah” phrase might seem pejorative, she used the phrase as part of her response to defense counsel’s claim that Jackson was incompetent for failing to fully conduct field sobriety tests, complete a drug evaluation worksheet, or search for fingerprints on the plastic baggie and syringes. As noted by the trial court, the prosecutor’s argument about a defense attorney in the backseat of the car sought to compare defense counsel’s attack upon Jackson’s investigation to comments made by a backseat driver as to all the various things which the driver failed to do, and again did not amount to misconduct or denigrate the defense.
Appellant claims the prosecutor’s argument about appellant’s admission of the misdemeanor count constituted misconduct but the record again refutes this assertion. As explained ante, the court rejected appellant’s attempt, on the first day of trial, to plead guilty to misdemeanor possession of the syringes in order to exclude the syringes from trial on the felony possession charge. In his opening statement, however, defense counsel conceded appellant’s guilt for possession of the syringes. The prosecutor’s argument on this point anticipated the defense strategy of arguing that appellant only possessed the syringes but the driver possessed the drugs in the backpack. The prosecutor did not commit misconduct by urging the jurors to use their common sense as to why appellant would admit the misdemeanor and try to blame the driver for the felony offense, especially when the drugs were found in a backpack which contained women’s clothes. “[J]urors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them” (People v. Venegas (1998) 18 Cal.4th 47, 80), and that is all the prosecutor asked this jury to do.
Appellant further asserts the prosecutor accused defense counsel of lying when she argued in rebuttal that counsel’s prior arguments about the case were “not true.” The prosecutor’s argument was not directed at counsel’s integrity but instead sought to reinforce her earlier arguments about the strength of the circumstantial evidence in the case.
We thus conclude that there were no aspects of the prosecutor’s closing argument which demeaned or denigrated defense counsel or the defense strategy. As illustrated in Zambrano and Bemore, a prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account, and the prosecutor’s argument in this case was aimed solely at the persuasive force of defense counsel’s closing argument and not at counsel personally.
III. Denial of new trial motion.
Appellant contends the court should have granted her motion for new trial because the prosecutor committed prejudicial misconduct in closing argument by reducing the reasonable doubt burden of proof and denigrating defense counsel. We review a trial court’s ruling on a new trial motion under the deferential abuse of discretion standard. (People v. Navarette (2003) 30 Cal.4th 458, 526.) Appellant’s new trial argument is based upon the same prosecutorial misconduct contentions we have already addressed and rejected. For the same reasons, we find the court did not abuse its discretion when it denied appellant’s new trial motion. (Ibid.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DAWSON, Acting P.J., KANE, J.