Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS042990
ELIA, J.A jury found appellant guilty of one count of sale of cocaine base. (Health & Saf. Code, § 11352.) Appellant contends his "constitutional right to the effective assistance of counsel was violated when trial counsel failed to object to multiple instances of prosecutorial misconduct during closing arguments." We affirm.
Background
Roman Alvarez testified that in June 2004 he was working as an investigator with the Department of Alcohol Beverage Control and was investigating crimes that occurred in and around bars, stores, and restaurants that serve alcohol. Shortly after 7:00 p.m. on June 24, 2004, working undercover, Alvarez and fellow investigator Elisardo Favela went to the LaFama Bar in Salinas. A man was seated at the bar wearing a mechanic's shirt with the name "Guillermo" sewn on it. At trial, Alvarez and Favela identified appellant as the man that they saw at the bar. Appellant spoke to a man named Ortega, who counted out $200 and left the money on the bar. Appellant took the money, put it in his pocket, and walked to a corner. He reached down among some boxes of Corona beer and returned to the bar. He handed Ortega a clear plastic sandwich bag that contained a white, round, solid substance. Ortega put the bag in the pocket of his pants. Favela testified that he handed Ortega a $20 bill and asked Ortega "if I could get a 20 from him." In response, Ortega broke off a piece of the white substance and gave it to Favela. The parties stipulated that this substance was cocaine base.
Working with the Salinas Police Department, Alvarez and Favela identified appellant as the man in the bar from photographs that were shown to them. Favela testified that he observed appellant for about 45 minutes while they were in LaFama and that there was "No doubt at all" that the person he saw in the photograph was the same person that he saw in the bar who had sold cocaine to Ortega. Alvarez and Favela made a few more trips to LaFama before completing their investigation. Appellant eventually learned he had been charged with this offense when he came to court for something else. When he appeared for his preliminary examination in March 2005, he was wearing a mechanic's shirt that had "Guillermo" sewn on it.
Appellant testified and admitted prior drug use but denied ever having sold drugs. He said that he ran a business called "Memo's Auto Repair" and typically wore shirts that had the name "Memo" on them. Some years earlier, he did have some shirts that said "Guillermo" on them, but he had given those away, to two men, named Jorge and Raul, who occasionally helped him at work.
Appellant acknowledged having been convicted of possession of narcotics in 1988 and 2001 and driving under the influence with injury in 1998.
Pascual Sanchez testified that for the three years he had known appellant, appellant's shirts had the name "Memo" on them. Horacio Lara testified that a man named Raul sold drugs from the bar at LaFama and would get his drugs from the corner of the bar. Comparing appellant and Raul, Lara testified that although one man was much heavier than the other, "if you don't know them and didn't really take a look at them, you could mistake them both." On rebuttal, Favela testified that a man named Raul Valdez was arrested in the course of this investigation but that Favela had no difficulty telling Valdez apart from appellant.
On June 26, 2006, the jury retired to deliberate at 4:35 p.m. At 5:15, the jury returned a verdict of guilty of one count of sale of cocaine base. At sentencing, the trial court suspended execution of a five year state prison sentence and placed appellant on probation.
Discussion
Appellant contends that the prosecutor committed prejudicial misconduct by making a "misstatement of [the] burden of proof" and by "criticizing appellant for exercising his rights to a jury trial and to testify in his defense." Defense counsel did not object to the prosecutor's remarks, however, and appellant recognizes that an assignment of misconduct cannot be raised on appeal without a timely objection and request for admonition. (People v. Young (2005) 34 Cal.4th 1149, 1184-1185.)
Appellant contends that he received ineffective assistance of counsel because his attorney failed to object to the alleged misconduct. In order to prove a claim of ineffective assistance of counsel, appellant "must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Additionally, he must establish prejudice, i.e., a reasonable probability that absent counsel's unprofessional errors the result would have been different . . . ." (People v. Thomas (1992) 2 Cal.4th 489, 530.)
" 'The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Padilla (1995) 11 Cal.4th 891, 940, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823.) Even when a prosecutor's argument is improper and defense counsel does not object, this does not establish that counsel was ineffective. "[A] mere failure to object to evidence or argument seldom establishes counsel's incompetence" (People v. Ghent (1987) 43 Cal.3d 739, 772). To prevail on appeal, appellant also must establish that "the appellate record discloses ' "no conceivable tactical purpose" ' for counsel's act or omission." (People v. Lewis (2001) 25 Cal.4th 610, 674-675.) Appellant asserts, "Because the prosecutor's conduct was so clearly egregious and prejudicial that there 'simply could be no satisfactory explanation' for trial counsel's failure to object and request admonishments, appellant's ineffective assistance claim is properly presented on direct appeal. (People v. Pope (1979) 23 Cal.3d 412, 426.)"
Burden of Proof
During his closing argument, the prosecutor described LaFama as "an open-air drug market." He reminded the jury that there had been a stipulation that the substance involved was cocaine and said, "What are we arguing about? What is this trial about?" He explained that even if appellant were guilty, if the investigators had not shown up to testify at trial the presumption of innocence would operate to compel an acquittal. He said, "counsel for the defense is arguing it wasn't my guy, it was somebody else dressed in a 'Guillermo' T-shirt, who looks exactly like his photograph, who apparently was misidentified in court twice. You may, as a jury, decide those facts." The prosecutor argued that a jury must "have a reasonable rational basis" for rejecting evidence.
Defense counsel argued that the officers were mistaken in their identification of appellant. He said, "Mr. Castro knew what the evidence was going to be. . . . He didn't come in here and take your time on a whim. He's here because he didn't do it. . . . Mr. Castro says, no that's not me. The officers say, yes, that it was him that was involved in that transaction . . . . Well, keeping in mind the presumption of innocence, tip that scale. That evidence on there, does it satisfy you to the extent that you're satisfied beyond a reasonable doubt?" Defense counsel argued that circumstantial evidence was "the only basis for finding that there was, in fact, a drug transaction" because although Ortega broke off a piece from his pocket to give to Favela there was "actually no evidence that that is the crack or was crack from a bag that came from the back of that building." Defense counsel referred to the circumstantial evidence instruction that "if there are two reasonable interpretations . . . you must . . . adopt that version which says that he is innocent. That's the safeguard built into our system when we use circumstantial evidence to try to prove a point."
On rebuttal, the prosecutor argued that the defense witnesses should be disbelieved because "their statements are just not correct. They just don't match up to the rest of the stuff. [¶] Counsel is correct. There is, in fact, an instruction that says if you have two reasonable interpretations – I'm not sure if this happened or if this happened – and one of those points to guilt and one of those points to innocence, you're obligated as a jury to go to the one that goes to not guilty. Sort of a tie goes to the runner theory. Tie goes to the defendant. [¶] He comes in with a cloak of the presumption of innocence. If I don't prove my burden and if I haven't convinced you . . . in that sort of situation, the tie goes to the defendant. He walks out the back of the courtroom. That's it. It's over. [¶] What I'm suggesting to you is that these aren't reasonable interpretations of the same event."
Appellant contends that the prosecutor's statement that "a tie goes to the runner" was misconduct. He argues, "by describing the burden of proof as 'a tie goes to the runner' theory, the prosecutor essentially equated the standard of proof to a preponderance of the evidence. The prosecutor led the jury to erroneously believe that the defense was entitled to a 'not guilty' verdict only if the defense theory was equally as reasonable as the prosecution theory."
In People v. Nguyen (1995) 40 Cal.App.4th 28, the Court of Appeal said that a prosecutor's argument that people apply a reasonable doubt standard "every day" and that it is the same standard people use in deciding whether to change lanes had the effect of trivializing the reasonable doubt standard. (Id. at p. 36.) The court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Ibid.)
In People v. Anderson (1990) 52 Cal.3d 453, a death penalty case, the prosecutor used the "tie goes to the runner" analogy in describing the state's burden of proof. As here, defense counsel did not object to the remark. On appeal, the defendant complained that the jury may have interpreted that remark as meaning that the defendant would prevail only if the evidence were closely balanced, but would lose, despite a reasonable doubt, if the prosecution's case slightly outweighed the defense. Our Supreme Court deemed the misconduct claim to be waived. Nevertheless, the court considered the context in which the remark was made and found no misconduct. The court said, "[T]he prosecutor appears to have been merely observing that conflicting testimony and inferences must be resolved in defendant's favor. In any event, defense counsel amply clarified the matter during his own closing argument, and thereafter the court correctly instructed on the subjects of reasonable doubt and burden of proof." (Id. at p. 472.)
Appellant attempts to distinguish Anderson by arguing that in this case "The prosecutor was actually misstating the law concerning circumstantial evidence and reasonable doubt, and leading the jury to believe that appellant was entitled to acquittal only if there were two equally reasonable interpretations of the evidence. . . . Further, in this case the improper argument came during the prosecutor's rebuttal, so trial counsel had no opportunity to counter the misconduct with a proper statement of the law."
Here, the prosecutor's argument was a response to the defense argument about circumstantial evidence inferences regarding whether the cocaine given to Favela by Ortega was the same substance that appellant had given to Ortega. Although the prosecutor's analogy may have been ill-advised, it appears to have been a clumsy attempt to clarify the concept that conflicting testimony and inferences must be resolved in appellant's favor. As such, it was not misconduct. Even if it were, appellant has not demonstrated defense counsel's lack of objection was unreasonable as a matter of law. This was essentially a one-day trial. The jury had been instructed that morning on the reasonable doubt standard, defense counsel described that standard in his argument, and the prosecutor's brief remark was made late in the afternoon when the jury was going to be instructed again on the reasonable doubt standard within minutes. Counsel could reasonably have thought that the prosecutor's analogy did not so diminish or confuse the reasonable doubt standard as to make an objection necessary. Defense counsel reasonably could have thought that the jury would have the court's reasonable doubt and circumstantial evidence instructions to guide them and could ultimately apply the reasonable doubt standard properly notwithstanding the prosecutor's rebuttal argument. The prosecutor was responding to the defense criticism of the strength of the proof that what Ortega gave Favela from his pocket was the same substance appellant gave Ortega. Thus, it had little impact on the identity issue which was the thrust of the defense. Furthermore, the jury was about to be instructed by the court that, as to the identity issue, "The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime." Considering the argument and instructions as a whole, appellant did not receive ineffective assistance of counsel when counsel did not object to this remark.
There are reasons for avoiding sports analogies altogether, regardless of the type of case. It is particularly risky for a prosecutor to use them. For an analysis of "whether baseball and the law are suitable candidates for comparison, " see Oldfather, The Hidden Ball: A Substantive Critique Of Baseball Metaphors In Judicial Opinions (1994) 27 Conn. L.Rev. 17, 17-18.
Exercising Defendant's Rights
Appellant contends that the prosecutor committed misconduct "criticizing appellant for exercising his rights to a jury trial and to testify in his defense." Recognizing that because there was no objection or request for admonition from defense counsel, appellant states "because the issue of prosecutorial misconduct is likely to be deemed waived on appeal, appellant contends that trial counsel's failure to object constituted ineffective assistance." The prosecutor posed the question during argument, "What are we arguing about? What is this trial about?" Defense counsel argued that appellant "didn't come in here and take your time on a whim. He's here because he didn't do it." During rebuttal, the prosecutor said, "The way things become an issue is just like this. Along with the presumption of innocence and reasonable doubt and the burden that the People have in order to prove Mr. Castro is guilty is this: The inalienable right of a citizen or a person in this country to go to trial on any criminal charge. Anybody, without question. No matter what happens. No matter what the evidence is. No matter what the investigation. No matter what the confessions are. No matter what evidence we have as the prosecution team pointing towards guilt. A defendant has an absolute right to be here and put us to our proof because, if we can't show it to you here, it doesn't count. [¶] I don't know why he's here. I don't know what the decision process was. I don't know what he was thinking when he took the stand. And I don't know what he was thinking when he wore his shirt to the prelim. [¶] Maybe he couldn't remember what day it was. Maybe he couldn't remember what day he sold. Maybe he couldn't remember what he was wearing on June 24th and thought he would wear something different. I have no idea what he was thinking and neither do you. . . . And if I had him on video and if we had five other investigators in there who all said the same thing, would he be entitled to this trial? Yes. We would be right here and we would be putting on evidence."
Appellant argues that "The obvious implication conveyed by the prosecutor's remarks was that the prosecutor personally believed in appellant's guilt and that appellant was wasting the court's time and resources by insisting that the prosecution prove its case at a trial."
A prosecutor may not comment on a defendant's invocation of his or her right not to testify, because such a comment would impose a penalty on the exercise of that right. (Griffin v. California (1965) 380 U.S. 609, 614.) A comment which penalizes exercise of the right to counsel is also prohibited. (People v. Fabert (1982) 127 Cal.App.3d 604, 610-611, People v. Schindler (1980) 114 Cal.App.3d 178, 188-189.) Appellant argues that the prosecutor's comments denigrated appellant's decision to go to trial and testify, and thus penalized appellant for the exercise of those rights. Respondent argues, "In context, the prosecutor's remarks had a far less sinister connotation. The prosecutor referred to appellant's right to a trial but did not denigrate it."
The prosecutor's remarks were a response to defense counsel's statement that appellant "didn't come in here and take your time on a whim. He's here because he didn't do it." They may have been directed at that occasional juror who believes that there must be more to the case than the jury heard or the defendant would not have insisted on his or her day in court. Seen in this light, the comments are not a criticism of appellant for exercising his rights but an attempt to protect the prosecution's case from the not-uncommon juror assumption that the exercise of those rights implies that there is more to the case, either favorable to the defense or unfavorable to the prosecution, than was presented at trial.
Even if we were to view the comments as misconduct, defense counsel could have chosen not to object to them because they expose a tone of defensiveness about the prosecutor's case that could have worked to the defense advantage. In any event, we disagree with appellant's analysis of prejudice that "there was a close question as to whether the investigators had correctly identified appellant." While it is true that appellant was not arrested for some time after the sale, the investigators identified appellant from photographs right after the sale. The strength of the defense evidence about appellant having given away his "Guillermo" shirts to his employees before the incident was substantially undercut by the evidence that he was wearing such a shirt at the time of the preliminary examination. Both because we find a satisfactory explanation for counsel's failure to object and because the remarks are not likely to have had an impact on the outcome, the claim of ineffective assistance of counsel fails. (People v. Turner (2004) 34 Cal.4th 406, 432-433.)
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.