Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC824832
Mihara, J.
A jury convicted defendant Sinica Patricia Santos of offering to sell methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The trial court imposed a three-year prison sentence.
Further statutory references are to the Health and Safety Code unless otherwise noted.
On appeal, defendant contends (1) her trial counsel rendered ineffective assistance by failing to ask that her prior conviction for possession of a controlled substance for sale be “sanitized” as “a generic crime of moral turpitude”; (2) the prosecutor committed prejudicial misconduct by repeatedly referring to the prior conviction during closing argument; and (3) her trial counsel rendered ineffective assistance by failing to object to the prosecutor’s misconduct. We affirm.
I. Factual Background
Early in the evening on Sunday, November 9, 2008, Officer Vidal Fonseca searched the cell phone of a suspect arrested for possessing methamphetamine. On the phone was a text message “Sinica” had sent at 4:40 p.m. The message said, “I got fire.” Fonseca knew from his training and experience in narcotics investigations that “fire” meant methamphetamine. Using the suspect’s phone, he texted back, “I want.” Three minutes later, “Sinica” responded, “What u need?” Fonseca texted, “A 20 shot of chris, ” which is slang for $20 worth of crystal methamphetamine. “Sinica” responded, “Okay, are you mobile? I am at my house. My ride is on the way.” When Fonseca texted, “Car broke. On foot. How long till your ride?” the suspect’s phone rang. Noting that the incoming call was from “Sinica, ” Fonseca did not answer but instead texted, “Can’t answer now. You got ride?” “Sinica” texted, “Yeah, tell me where to go.” Fonseca suggested a 7-Eleven in San Jose, and “Sinica” said she would be there, in a Ford Explorer, in “2 minutes.”
Fonseca notified his partners and headed to the 7-Eleven. Another text appeared as he approached: “Pulling in.” He responded, “K almost there.” He saw a woman driving an Explorer turn into the 7-Eleven’s parking lot. A male passenger was with her.
As Fonseca drove into the lot and parked, he received another text: “Here.” He remained in his car as the woman, later identified as defendant, got out of the Explorer, walked into the 7-Eleven, and “went behind the aisles.” By that time, Officers Anderson and Morgan (who, like Fonseca, were in uniform and driving marked patrol cars) had arrived. Anderson, whom Fonseca said was “at least 30 seconds” behind defendant, followed her into the store, while Morgan approached the passenger in the Explorer. Anderson asked defendant to step outside, and she complied. Fonseca, still in his patrol car, telephoned the number he had been texting, and defendant’s phone rang. He also sent a final text, “to confirm that these text messages I was sending were going to that phone and we detained the correct person.”
Fonseca joined Anderson and defendant when they came out of the 7-Eleven. A pat down search located defendant’s cell phone. Fonseca’s final text was found on the phone but the earlier texts were not.
The officers searched appellant and her passenger. They also searched “[t]he vehicle, outside the vehicle, the surrounding area in the parking lot, the path... defendant took into the store, the aisleways, and inside the products..., try[ing] to look behind them.” They also searched her house. No drugs were found. Fonseca later testified that $20 of methamphetamine is equivalent to half the contents of a Sweet ‘N Low packet.
II. Procedural Background
Defendant was charged by information with one count of offering to sell methamphetamine (§ 11379, subd. (a)), and it was further alleged that she had suffered a prior narcotics conviction (§§ 11370.2, 11378). She admitted the prior before trial.
At sentencing, the court struck the three-year enhancement for the prior (Pen. Code, § 1385).
The People moved in limine for an order allowing them to impeach defendant, if she chose to testify, with two prior convictions, a 1998 misdemeanor second degree burglary conviction and a 2004 conviction for possession of methamphetamine for sale (§ 11378). Defendant argued that the 1998 conviction was too remote, and the court agreed and excluded it.
With respect to the 2004 conviction, defendant’s trial counsel stated, “in terms of impeachment, I would ask if the Court is going to allow it, we allow only just the fact of the conviction, what it is, but not the underlying facts.” The court ruled that since the probative value of the prior was not outweighed by any prejudicial effect, “[t]he People will be allowed to impeach the defendant with the prior conviction for Health and Safety Code [s]ection 11378.”
The People also sought to use the facts underlying the section 11378 conviction in their case-in-chief to prove defendant’s intent (Evid. Code, § 1101, subd. (b)). They wanted to question the officer who had searched her residence in 2004 about what he found—“that is, four to five pages of pay-owe sheets[, ]... close to $14,000[, ]... and two bindles of methamphetamine.” Defendant’s trial counsel argued that “all he’s trying to do is... prejudice the jury by evidence of a crime... with facts that are completely dissimilar to the facts in this case.”
The court took the motion under submission and, after further argument, denied it, explaining that the facts underlying defendant’s 2004 conviction were more prejudicial than probative. “I have done the weighing process required by Evidence [C]ode [s]ection 352, and I find that the probative value of this information is outweighed by the undue risk of prejudice, and I really do believe there’s too much of a danger that the jury will use the information regarding the circumstances of the prior conviction to convict [defendant] in this case. They will use that to show she was a drug dealer then and so she’s a drug dealer now without properly weighing the evidence. [¶] Also, I find there is an undue consumption of time with a small trial within a larger trial because... [defendant’s trial counsel] does intend to call either the co-defendant or the prior roommate... to testify to what was hers and what was not hers in the prior case. It is for those reasons that I have denied the People’s request to present the circumstances of the prior conviction. I have allowed you to use the prior conviction for impeachment.” The court ruled that “neither the fact of the conviction nor the circumstances of the prior conviction can be used for 1101(b) purposes.”
At trial, Fonseca was the only prosecution witness. He recounted the events that led to defendant’s arrest and described the subsequent investigation.
Both phones were admitted into evidence, along with photographs of screens showing defendant listed as a contact on the suspect’s phone, the suspect listed as a contact on her phone, and Fonseca’s 7:28 p.m. call from the suspect’s phone to defendant’s phone. Photographs of the text messages Fonseca sent from and received on the suspect’s phone were also admitted into evidence. Fonseca used Cellebrite technology to download and print defendant’s cell phone activity, and that printout was also admitted into evidence.
Defendant testified on her own behalf. She was the only defense witness. She identified her cell phone and admitted using it on November 9, 2008. She admitted sending the texts Fonseca received, but denied any intent to sell methamphetamine. She explained that the phone Fonseca used belonged to the uncle of a childhood friend, whom defendant calls “Uncle Billy.”
Defendant told the jury that Uncle Billy borrowed $30 from her a few days before her arrest. He promised to pay her back before the weekend but failed to do so. She “must have called him four times on Friday, ” and “maybe a couple times on Saturday. No answer.” On Saturday, she drove to his house, “but they told me he wasn’t there....” She did not go to the hotel where he worked. On Sunday morning, she texted him, “saying like if you don’t have the money, can you get [me] a discounted rate, ” but he ignored that text. That afternoon, she sent the “I got fire” text. She knew Uncle Billy was a drug user, and she “wanted to get his attention.” “I had been trying to call him all weekend and I wasn’t getting his attention, so it was... throwing something out there.”
Defendant’s trial counsel concluded his direct examination by asking if she had “ever been convicted of any kind of narcotics offense.” “Yes, I have, ” defendant responded, “[i]n 2004.” “Q: What were you convicted of? [¶] A: I was convicted of possession of a controlled substance for sale. [¶] Q: What substance was that? [¶] A: Methamphetamine.”
Confronted on cross-examination with a phone that showed no texts to Uncle Billy about the debt or a discounted hotel room, defendant claimed she had it set to automatically erase sent messages. She conceded it was not set to delete incoming messages. She could not explain why all but one of the texts from Fonseca were not on the phone, while three others received the same day (two unrelated ones and Fonseca’s final one) remained on it. She denied deleting the missing messages.
Acknowledging she had on direct examination admitted sending “every single text message” to Fonseca, defendant on cross-examination claimed that her passenger Elias had also used her phone that day. “Q: So you are sending texts literally every three minutes, but during those three minutes at other times you are sending a text, then passing the phone around?” “A: Well, no. Actually, no, my friend was who was sitting right next to me. He would text and I would tell him what to say.” “Q: So let me stop you there then. You just previously... agreed you sent every text message?” “A: Well, yeah, I told him what to say.” “Q: So you weren’t the person on the phone every single time; you were directing another person to text for you?” “A: Yeah.” Defendant said Elias was with her the entire time, including while they waited for their ride (from a third party, Jesse, who remained at the house). But she could not remember which texts she had sent and which ones Elias had sent. “I know I sent the ones up until right before I got in the car and went to 7-Eleven. Then I was driving and I was telling him.” Defendant did not tell Elias to delete the missing texts, but said he might have done so because “he’s paranoid and nervous.”
Defendant conceded that “fire” meant methamphetamine. Asked if “20 shot of chris” meant $20 worth of crystal methamphetamine, she answered, “Maybe to the average person, but to me it meant that [Uncle Billy] had $20 to spend, and that belonged to me.”
Defendant said she was surprised and “upset” when police detained her. “I didn’t raise a fit or scream, but I did tell Officer Fonseca why I was there.” “I told him I was there to meet my uncle who owed me some money, and then they started asking me for the crystal.” She claimed it was not Fonseca but another officer who told her he had sent the text messages. “No. Another officer came up....” She acknowledged hearing Fonseca testify that he sent the texts, but insisted he was not the one who informed her she had been texting an officer. “No. Officer Fonseca was standing there because I told [him] what was going on. He said, okay, hold on. He went and got another police officer. He was Caucasian, and I don’t know if it was his sergeant or what. He opened the door [of the patrol car she was sitting in] and said where was the crystal. You were text messaging a police officer.”
Asked on redirect if she knew it was Fonseca who followed her into the 7-Eleven, defendant said “I thought it was, or maybe an officer that resembled him, or the same hair.” She agreed with her trial counsel that she could have been mistaken.
The prosecution recalled Fonseca, who did not remember defendant saying she was there to meet her uncle. It was unlikely she had told another officer that story outside of Fonseca’s hearing, because Anderson brought her out of the 7-Eleven within a matter of seconds, and that was when Fonseca joined them. It was Anderson, not Fonseca, who went into the 7-Eleven and detained defendant. It was Fonseca, however, who explained to her that Uncle Billy would not be coming to the 7-Eleven that day. Fonseca is Hispanic. Anderson is African-American.
Handed defendant’s cell phone, Fonseca was asked to locate incoming phone calls from Uncle Billy. There was only one—Fonseca’s 7:28 p.m. call from Uncle Billy’s phone. There were no missed calls to defendant from Uncle Billy’s phone. There were two outgoing calls to Uncle Billy from defendant, both within the time period when she was texting Fonseca. The first, placed at 7:00 p.m., was the call Fonseca chose not to answer. The second was made at 7:28 p.m., about the time defendant was detained.
III. Discussion
A. Failure to Request “Sanitization” of Narcotics Prior
Defendant contends her trial counsel rendered ineffective assistance by failing to request that her prior conviction be “sanitized” as “a generic crime of moral turpitude.” The error, she argues, violated her federal and state constitutional rights to due process and to counsel. We disagree.
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) The court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct.” (Strickland, at p. 690.) “Judicial scrutiny of counsel’s performance must be highly deferential” and “every effort [must] be made to eliminate distorting effects of hindsight....” (Strickland, at p. 689.) When counsel’s conduct can reasonably be attributed to sound strategy, a reviewing court will presume the conduct was the result of a competent tactical decision, and defendant must overcome that presumption to establish ineffective assistance. (Ibid.)
“Second, the defendant must show that the deficient performance prejudiced the defense.” (Strickland, supra, 466 U.S. at p. 687.)
California’s Constitution was amended by initiative measure in 1982 to provide that “[a]ny prior felony conviction of any person in any criminal proceeding... shall subsequently be used without limitation for purposes of impeachment... in any criminal proceeding.” (Cal. Const., art. I, § 28, subd. (f), enacted in 1982 as part of Prop. 8, the Victims’ Bill of Rights; People v. Castro (1985) 38 Cal.3d 301, 327 (Castro).) The purpose of the initiative measure, the Castro court explained, “was... to reject the rigid, black letter rules of exclusion... grafted onto the code by the Antick line of decisions.” (Castro, at p. 312.) The measure was not, however, “intended to abrogate the traditional and inherent power of the trial court to control the admission of evidence by the exercise of discretion to exclude marginally relevant but prejudicial matter....” (Castro, at p. 306.) “[A]lways subject to the trial court's discretion under [Evidence Code] section 352, ” the amended provision “authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.” (Castro, at p. 306.) Such convictions are “prima facie admissible” for purposes of impeachment. (Castro, at p. 316.)
People v. Antick (1975) 15 Cal.3d 79 (Antick). Defendant’s reliance on cases such as People v. Cole (1982) 31 Cal.3d 568, 581 (Cole), People v. Pugh (1983) 145 Cal.App.3d 854, 857 (Pugh), and People v. Thompson (1980) 27 Cal.3d 303, 314 (Thompson), all decided before Proposition 8, is misplaced. In her reply brief, defendant asserts that these cases “have not been limited or disapproved of by Castro.” She is incorrect. As the Castro court noted in its discussion of the Antick line of cases, “there seems to be little doubt that the drafters of section 28 wanted a change and that the voters legislated it.” (Castro, supra, 38 Cal.3d at p. 308.) Thompson relied on Antick. (Thompson, at p. 315.) Cole relied on People v. Fries (1979) 24 Cal.3d 222 (Fries). (Cole, at pp. 580-581.) Fries was, as the Castro court pointed out, one of “the Antick line of cases” that voters disapproved. (Castro, at pp. 307-308.)
Trial courts retain discretion to “sanitize” a prior conviction, either on the court’s own motion or at the defendant’s request, to avoid undue prejudice. (See People v. Sandoval (1992) 4 Cal.4th 155, 177-178; People v. Ballard (1993) 13 Cal.App.4th 687, 688, 697-698.) The court does not abuse its discretion by declining to do so, however, even when the prior crime is identical to the present offense. (People v. Johnson (1991) 233 Cal.App.3d 425, 458-459.) Indeed, sanitizing a prior conviction carries its own risk, namely, that the jury will “speculate as to the nature of the impeaching priors and conclude they were for similar or other heinous offenses.” (People v. Hinton (2006) 37 Cal.4th 839, 877 (Hinton).) The only other option, disallowing impeachment by a prior conviction altogether, would improperly imbue a defendant’s testimony with a “ ‘ “false aura of veracity.” ’ ” (Hinton, at p. 888; People v. Massey (1987) 192 Cal.App.3d 819, 825.)
Defendant claims “there is no tactical reason why defense counsel would not request that the prior be sanitized.” We cannot agree. First, defendant’s trial counsel could reasonably have concluded that referring to the prior as “a generic crime of moral turpitude” would invite the jury to speculate that she had been convicted of a more serious offense. (Hinton, supra, 37 Cal.4th at p. 877; see People v. Rollo (1977) 20 Cal.3d 109, 119 [“Why else, the jurors might naturally ask, was the name of the crime withheld from them?”].) Second, and even more importantly in our view, counsel could reasonably have decided that in a case like this one, where the jury had to believe defendant’s story before it could acquit her, it was crucial that she not appear to be hiding anything from them. The fact of her prior conviction was obviously going to come in, and she makes no argument here that the trial court abused its discretion in allowing it for impeachment purposes. Nor could she, as she expressly acknowledges. (Castro, supra, 38 Cal.3d 301, 306, 317.) Given this reality, and recognizing the critical importance of truthfulness and candor, defendant’s trial counsel could rationally have decided to take control of the situation. We think he did so when he concluded his direct examination by eliciting defendant’s brief and non-evasive statement that she had previously been convicted of possession of methamphetamine for sale. This was a valid strategic decision, not deficient performance. (Strickland, supra, 466 U.S. at p. 689.)
Defendant argues that her trial counsel was, in effect, forced to elicit her testimony about the prior conviction on direct to soften the impact of the prosecution’s inevitable use of that evidence to impeach her. “Had the prior conviction been sanitized, ” she argues, the prosecutor “could not have presented this evidence and defense counsel would have no reason to introduce it.” This is simply another iteration of her argument that there was no tactical reason for her counsel not to have requested that the prior conviction be sanitized. We have already rejected that argument. Because counsel’s conduct can reasonably be attributed to sound strategy, we presume that it was the result of a competent tactical decision. (Strickland, supra, 466 U.S. at p. 689.) We reject defendant’s contention that her trial counsel rendered ineffective assistance by failing to request that her 2004 conviction be sanitized.
Having determined that defendant failed to satisfy the first prong of the Strickland test, we need not address her arguments with respect to the second prong. (Strickland, supra, 466 U.S. at p. 697.)
The quotes defendant takes from inapposite cases do not compel a different conclusion. “[C]ases, of course, are not authority for propositions not there considered.” (People v. Ceballos (1974) 12 Cal.3d 470, 481.)
People v. James (2000) 81 Cal.App.4th 1343, 1353 (James), was a domestic violence case. In James, the court addressed instructional errors relating to propensity evidence that had properly been admitted under Evidence Code section 1109 and found the errors harmless. (James, at p. 1365.) James is inapposite. Here, unlike in James, defendant’s prior conviction was admitted only for impeachment purposes. The trial court so instructed the jury, and we must presume that the jurors followed that instruction. (People v. Panah (2005) 35 Cal.4th 395, 492.)
In People v. Gibson (1976) 56 Cal.App.3d 119 (Gibson), unlike in this case, the court admitted evidence of the defendant’s prior crimes as probative on the substantive issues of motive and intent, and two eyewitnesses to those crimes described them in detail. Reversing the defendant’s murder conviction, the Court of Appeal held that the evidence was so inherently prejudicial that a limiting instruction could not have cured the prejudice. (Gibson, at pp. 130-131.) Gibson says nothing about admission of the fact, but not the details, of a prior conviction for impeachment purposes after a careful Evidence Code section 352 analysis.
As the same appellate district that decided Gibson subsequently held, “the Gibson observations” were “inapposite” where “[t]here is no evidence that the jury ignored the court's instructions and committed misconduct by using limited evidence for an improper purpose.” (People v. Zack (1986) 184 Cal.App.3d 409, 416.)
In People v. Bouzas (1991) 53 Cal.3d 467 (Bouzas), the defendant offered to stipulate to his prior robbery conviction so that the jury would not learn of it. The trial court denied the request, and the defendant was convicted of petty theft with a theft-related prior. The California Supreme Court reversed, holding that when a prior conviction is not an element of the offense charged but is instead relevant only to punishment, a defendant is entitled to stipulate to it. (Bouzas, at p. 480.) In Bouzas, unlike in this case, the defendant did not testify. (Bouzas, at p. 470.) Thus, there was no issue about the use of his prior conviction for impeachment. Bouzas is inapposite.
Old Chief v. United States (1997) 519 U.S. 172, 185 (Old Chief), which addressed a similar question under federal law, is likewise inapposite. (Old Chief, at pp. 191-192.) Since the petitioner in Old Chief did not testify at trial, there was “no basis for the District Court’s suggestion that the jurors could consider the prior conviction as impeachment evidence.” (Old Chief, at p. 176, fn.2 [noting that “[w]hile it is true that prior-offense evidence may in a proper case be admissible for impeachment, ... petitioner did not testify at trial”].)
B. Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct during closing argument by referring to her prior conviction six times. She claims the prosecutor “invited the jury to use the prior crime evidence as character or propensity evidence, ” thus reducing the People’s burden of proof in violation of her right to due process. The Attorney General argues that defendant forfeited the claim by waiting until the third reference to object, and in any event, the claim lacks merit.
“ ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858-859.) Forfeiture does not result, however, if a timely objection or request for admonition would have been futile, an exception applied only in “unusual circumstances.” (People v.Hill (1998) 17 Cal.4th 800, 821 (Hill).) Here, we are not completely convinced that defendant’s trial counsel’s objection “to that last comment” was, as defendant now characterizes it, an objection to the cumulative “misuse” of the prior conviction. However, because she argues in the alternative that to the extent her counsel failed to object, his performance was prejudicially deficient, we will address the merits of her prosecutorial misconduct argument to the extent necessary to decide her ineffective assistance claim. (See People v. Ochoa (1998) 19 Cal.4th 353, 431 (Ochoa).)
“ ‘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.]’ [Citation.]” (Hill, supra, 17 Cal.4th at p. 819.) “When the issue ‘focuses on 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.’ [Citations.] Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial, ’ and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) We “ ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 420.) The allegedly improper remarks must be viewed in the context of the closing argument as a whole. (People v. Lucas (1995) 12 Cal.4th 415, 475 (Lucas).) We may not reverse unless it is reasonably probable that a more favorable result for the defendant would have been reached absent the statements. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
1. The Challenged Statements, in Context
For ease of reference in this contextual discussion, we italicize the statements that defendant challenges.
The prosecutor began his closing argument by reminding the jury that “nothing I say or defense counsel says constitutes evidence; just what we think.” He emphasized that the jury’s “conclusions or inferences... should be based on the evidence” and encouraged them, if they had questions, to “ask for exactly what was said instead of guessing.” He argued that the People’s case was “right here on this table, right here” in 26 exhibits, because “words in and of themselves in this case constitute the crime.” He told the jury that defendant admitted “fire” meant methamphetamine, but claimed that “a 20 shot of chris, ” which meant $20 worth of crystal methamphetamine to Fonseca, meant something different to her. “The defendant told you that it meant [Uncle Billy] had $20 he wanted to give me. So remember each and every time you think about what the defendant said and you want to judge her credibility as to whether or not you believe what she said, you are allowed to take into consideration she was convicted of Health and Safety Code Section 11378, possession of methamphetamine with the intent to sell in 2004, which is roughly four years prior to this incident.” (Italics added.)
Proceeding to the second element of the offense, the prosecutor told the jury it was “ultimately... for you to decide whether or not she was offering to sell methamphetamine..., or whether this was really some type of ruse --” Indicating a chart and “freely” admitting that the police searches had not uncovered any drugs, he told them the relevant jury instruction was “clear” that “no narcotics are actually required to commit this crime.”
The prosecutor then addressed the defense case, reminding jurors that defendant was presumed innocent, was not required to testify, and was “not required to put on a case at all.” Since the defense had done so, however, “I am allowed... to challenge their case” and discuss “what I think are holes in their case.” Defendant’s claimed efforts to collect her debt, the prosecutor suggested, were disproved by her cell phone, which showed only three calls to or from Uncle Billy’s phone, all made while Fonseca had control of it. There were no missed calls on Uncle Billy’s phone and no texts about the debt or a deal on a hotel room. Defendant never went to Uncle Billy’s place of employment, the prosecutor noted, and she went to his house only once. The prosecutor pointed out that defendant could easily have asked the phone company for copies of her records if they supported her story, but “[w]e don’t have that information.” He commented on defendant’s failure to call logical witnesses such as Uncle Billy, “who apparently lives around here, ” or Elias, “who allegedly... was deleting all … the... text messages, ” or “this mystery person who... apparently dropped off his vehicle at the defendant’s house.” “Didn’t hear from any of these people to corroborate anything the defendant says, and you have to remember this is the defendant who said I wasn’t doing a drug deal; I was using a ruse. This is coming from someone who has been convicted of possession for sale [of] methamphetamine in the past. Her credibility is preeminent. Not one person comes in to back up any part of her story.” (Italics added.)
The prosecutor suggested the missing text messages showed consciousness of guilt. He emphasized, based on the detailed time line established by the evidence, that the second-to-last text “disappeared... within five minutes.” He reminded the jury that defendant’s story changed during cross-examination: “You don’t get to change your testimony or start lying because things become problematic [for] you.... [A]t the beginning... she did say I sent all those messages, and when I started needling a little bit, you had the phone the whole time, you deleted those messages, didn’t you? Suddenly the phone at some point jumped out of her hand.... Wait, no, my passenger had it. He was the one texting. He must have been the one deleting it.” “Why do you think someone is going to delete six, seven, eight text messages that have to do with a narcotics transaction?” The prosecutor pointed out that even if Elias, who “wasn’t involved in this case at all until I asked about these messages, ” had deleted the earlier texts, he could not have deleted the penultimate one, because defendant would have been walking into or already in the 7-Eleven by then.
Defendant had plenty of time to delete the texts, the prosecutor argued. It takes only “[t]wo seconds, ” and Anderson entered the 7-Eleven at least 30 seconds after defendant. There were “two stories” the jury had to decide between. “Was she there for a ruse? If this is all a ruse, ... who cares about what’s on [the] phone, or was she there to do a drug deal[?]” The prosecution’s story was “borne out by physical evidence all printed up... for you to review, ... or you can believe the defendant’s story, and this is coming from the mouth of someone convicted of a prior drug related offense, possession with intent to sell.” (Italics added.)
Defendant’s trial counsel objected that “that last comment... goes beyond what... it was allowed for.” The court overruled the objection, stating that “[i]t goes to credibility.” The prosecutor offered, “I will restate it. Her story is I wasn’t there to sell meth. That’s coming out of her mouth. Her felony conviction for 11378 can be utilized for you to say she’s a convicted felon for possessing methamphetamine to sell. I can keep that in mind when I want to judge her credibility and her story.” (Italics added.)
The defense closing argument emphasized that defendant did not need to testify or present evidence because the prosecution had the burden of proof, a burden it had not met.
In rebuttal, the prosecutor reminded the jury that “[t]here’s not one piece of physical evidence anywhere, or testimony from anyone else except the defendant that this whole debt collection was occurring, and that’s somebody who you have a specific jury instruction that says they have been convicted of a felony, and that [sic] can challenge or that can make you, if you would like, challenge the credibility of that witness based on that felony conviction or in this case possession with intent to sell methamphetamine.” The prosecutor disagreed with the defense’s statement that “this whole process started with a lie” when Fonseca texted, “I want.” Instead, he argued, the process started when defendant “without any type of prodding... just shot off a text saying, I got fire.” He challenged the assertion that defendant’s statement that “I was sending those texts” was equivalent to “I was directing someone else to send those texts for me.” He had been very careful in his examination, he argued, “to put that phone in her hand the entire time so the only source of the deletion of those texts is her, and I think that goes to consciousness of guilt.” He disagreed with the defense’s statement that the case was entirely circumstantial, because the texts were direct evidence. He “admitted” that it was “a circumstantial evidence case as far as what the intent is because there’s no statement I was here to sell drugs.” “That’s why the jury instructions state you can prove intent by circumstantial evidence, and that would be all these texts, no other reasonable explanation as to what she was doing, and an unbelievable story from the defendant about this mystery $30 loan that is not documented anywhere else except out of her mouth, and that’s the mouth of someone who has been convicted of a felony of possession for possession of methamphetamine for sale.” (Italics added.)
2. Analysis
The ultimate question for the jury was whether the text messages were an offer to sell methamphetamine or merely a ruse, and the prosecutor’s closing argument focused on that issue. Defendant’s credibility was key, he told the jury. The prosecutor did not employ “ ‘ “ ‘ “deceptive or reprehensible methods” ’ ” ’ ” during closing argument by reminding the jury that defendant’s prior conviction was a relevant factor that they could consider in determining whether to believe her. (Hill, supra, 17 Cal.4th at p. 819.) He made it clear the evidence was to be used only for that purpose: four of the comments defendant challenges were expressly tied to her “credibility, ” and the other two were expressly tied to the “believability” of her story.
The cases defendant relies on are easily distinguished. People v. Hoze (1987) 195 Cal.App.3d 949 (Hoze) says nothing about prosecutorial misconduct. In Hoze, the court held that the defendant’s prior convictions were properly admitted to impeach him, and the trial court’s failure to recite its reasoning on the record was harmless error since “the reasonable exercise of discretion... could not have justified the exclusion of the evidence for impeachment....” (Hoze, at p. 955.) In Washington v. Hofbauer (6th Cir. 2000) 228 F.3d 689 (Hofbauer), the prosecutor “extensively berated [the defendant’s] character before the jury, ” emphasizing, among other things, that he did not work, regularly beat his cohabiting girlfriend, and “ ‘drank a lot.’ ” (Hofbauer, at pp. 695-696.) During closing argument, the prosecutor asked the jury to consider whether the allegations of the child the defendant was accused of molesting “fit” the general description they had heard of his character. (Hofbauer, at p. 696.) In rebuttal, moreover, the prosecutor “directly instructed the jury to consider [the defendant’s] character in deciding whether he committed the alleged crime.” (Ibid.) Nothing like that occurred in this case. In Bains v. Cambra (9th Cir. 2000) 204 F.3d 964 (Bains), a murder case, evidence of Sikh attitudes about marriage and divorce was admitted as probative of the defendant’s motive and intent. During closing argument, the prosecutor “highlighted the... testimony in a way that went beyond... motive and intent... and... invited the jury... to buy into the various [racial, ethnic, and religious] stereotypes [he] was promoting.” (Bains, at p. 974.) Again, nothing like that occurred in this case. In People v. Louis (1986) 42 Cal.3d 969 (Louis), disapproved on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn.9, a key prosecution witness testified at the defendant’s preliminary examination that the defendant admitted killing the victim. Released on his own recognizance “through the efforts of the prosecution, ” that witness promptly vanished, and the transcript of his testimony was admitted at the defendant’s trial. (Louis, at p. 974.) The California Supreme Court reversed the defendant’s first degree murder conviction, holding that the admission of the prior testimony violated his right to confront witnesses. Louis is inapposite here, where the challenged evidence was properly admitted for impeachment.
Conceding that the prosecutor was entitled to impeach her with the prior conviction, defendant contends it was not the substance of the challenged statements but the repetition that constituted the misconduct. We are not persuaded.
Viewing the challenged remarks in the context of the closing argument as a whole (Lucas, supra, 12 Cal.4th at p. 475), we discern no misconduct. The focus of the prosecutor’s argument was not on the prior conviction but on the obvious weaknesses of defendant’s case. He emphasized that the physical evidence did not support and in fact belied defendant’s claim that she had repeatedly called and texted Uncle Billy about the debt she claimed he owed her. He reminded the jury that defendant not only lacked a credible explanation for how the texts disappeared but had suddenly changed her story when confronted with the problem. He also reminded them that her story was utterly uncorroborated.
In our view, neither the content of the challenged comments nor the repetition “invited” the jury to use defendant’s prior conviction as character or propensity evidence. Indeed, a comment that the prosecutor made during rebuttal suggests the opposite. Referring to the defense’s argument that no drugs or paraphernalia had been found at defendant’s house, the prosecutor told the jury that “[a]t no point during the course of this trial did I try to intimate to you or prove to you that the defendant is some major cartel vendor trafficking in pounds or kilos of drugs. All I said is that she offered to sell methamphetamine. That’s a crime.... There’s 17 text messages... that prove she offered to sell methamphetamine.”
We reject defendant’s claim of prosecutorial misconduct.
Since we have concluded that the prosecutor’s closing argument was proper, defendant’s trial counsel’s failure to object to that argument (to the extent he failed to do so) was not deficient performance. (Ochoa, supra, 19 Cal.4th at p. 463 [“Representation does not become deficient for failing to make meritless objections”].) Where the first prong of the Strickland test is not satisfied, we need not address the second prong. (Strickland, supra, 466 U.S. at p. 697.)
C. Cumulative Error
Defendant contends that the cumulative effect of the trial court’s errors deprived her of a fundamentally fair trial. As we have found no error, her claim fails. (People v. Cooper (1991) 53 Cal.3d 771, 839.)
IV. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., Duffy, J.