Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa Co. Super. Ct. No. 031194-4
OPINION
Jones, P.J.
Jose Manuel Compean appeals from a judgment entered after a jury convicted him of possessing methamphetamine for purposes of sale, (Health & Saf. Code, § 11378) and possessing marijuana for purposes of sale (§ 11359). He contends his conviction must be reversed because (1) the trial court erred when it denied his motion to suppress, (2) the court erred when it admitted certain evidence at his trial, and (3) the prosecutor committed misconduct at trial and during final argument. We conclude no prejudicial errors were committed at appellant’s trial and affirm.
Unless otherwise indicated, all further section references will be to the Health and Safety Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2003, near 10:30 a.m., Contra Costa Community College District Police Officers Gerardo Espinoza and Michael Zozchi were on patrol when they noticed appellant standing by his car in a parking lot at Diablo Valley College. College Park High School is located directly across the street, and that portion of the lot was known to be the site of significant drug activity for high school and college students. The officers contacted appellant and asked what he was doing. Appellant said his daughter was a student at the high school and that he planned to give her some money at lunch time. Espinoza asked appellant if he could search his person and his car. Appellant consented. While searching appellant’s car in the area inside the molding of the dashboard underneath the steering column, Espinoza found a leather pouch with a metal tin--an Altoid’s metal can--inside. Inside the box were three large baggies, approximately 2 by 3 inches in size, of marijuana and 12 smaller baggies containing methamphetamine, three of which were inside a folded 2 by 3 inch envelope. The officers arrested appellant.
Appellant asked the officers to contact his daughter. When she arrived, Officer Espinoza told her why her father had been arrested. The daughter asked to speak with her father briefly. She asked him, in Spanish “Why did they get you with this?” Appellant replied, in Spanish, “That’s why I was going home to drop it off.” Espinoza, who could speak Spanish, was standing next to the daughter when the conversation occurred.
Appellant was booked into jail and was questioned by Officer Aaron Tan. Tan noticed that appellant’s hand shook, that he spoke rapidly, and that he had red, bloodshot, watery eyes.
Based on these facts, an information was filed charging appellant with possessing methamphetamine and marijuana for purposes of sale. The information also alleged appellant committed the methamphetamine offense within 1000 feet of a high school. (§ 11353.6. subd. (b).)
Appellant filed a motion to suppress. He argued his consent to search was invalid because he had been detained illegally. The trial court disagreed and denied the motion.
The case proceeded to trial where the prosecution presented the evidence we have set forth above. Appellant testified in his own defense. He denied the drugs were his and speculated that they had been left by an acquaintance who had borrowed his car the night before. The jurors rejected this defense and convicted appellant of both offenses.
Subsequently, the court sentenced appellant to four years, four months in prison, but suspended the execution of sentence and placed appellant on probation.
II. DISCUSSION
A. Motion to Suppress
1. Validity of the Detention
Appellant filed a motion to suppress arguing his consent to search was invalid because he had been detained illegally. The trial court conducted a hearing on appellant’s motion. Officer Espinoza testified as follows.
On the date in question, Espinoza was on patrol in the parking lot of Diablo Valley College with a partner, Officer Zozchi. When they first entered the paved parking area around 10:20 a.m., they noticed a Hispanic male standing at the rear of a brown Camaro parked in a corner. The Camaro’s doors and trunk were open. Espinoza and Zozchi continued their patrol and returned about 20 minutes later. The man was still standing near the Camaro. They decided to contact him.
Espinoza parked his patrol car near the Camaro but did not block it. He contacted appellant and asked what he was doing. Appellant, who was talking on a phone, appeared relaxed. He told Espinoza he was waiting for his daughter who was a student at the high school across the street and that he planned to give her money at lunch time.
Espinoza asked appellant for identification. Appellant provided a driver’s license. Zozchi called dispatch to determine whether appellant had any outstanding warrants. Espinoza asked appellant if he could pat-search him for weapons. Appellant said “yes.” After a brief search, Espinoza asked appellant “do you mind if I look into your car for any weapons?” Again appellant said, “ ‘Yes, no problem.’ ”
Espinoza searched the Camaro. Hidden under the console near the steering column, he found a black leather pouch that appeared to have a metal box inside. Espinoza brought the pouch to appellant. He said he did not know it was in his car. Espinoza opened the pouch and found the drugs we have described.
Based on this evidence, the trial court denied appellant’s motion to suppress explaining its decision as follows:
“I do find that the initial contact with the individual who is in this parking lot with his trunk open for 15 to 20 minutes was a consensual contact. At that point the officer asked the individual to search for weapons, and this is clearly a consent issue. There is no detention up to that point, and there’s clearly no probable cause up to that point for the officer to either conduct a pat search because he’s in fear of his safety because the officer said he was not, and there are no grounds to believe that the officer was in fear of his safety.
“So, can an officer ask for consent to search for something, whether it be drugs or weapons, via a consensual contact? And yes, an officer has a right to do that.
“There’s no evidence here that the consent was not voluntary. The officer tells me that the defendant was cooperative, calm demeanor, answered his questions, gave his license, did everything. So I have no evidence to contradict the voluntary consent that was testified to on behalf of the officer – by the officer on behalf of the defendant. And you don’t need, again, probable cause to be able to ask that question.”
Appellant now claims the trial court erred. Reiterating the argument he advanced in the court below, appellant contends his consent to search was invalid because he was illegally detained when it occurred.
Appellant is correct that consent given during an illegal detention can be invalid. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 791, fn. 12.) However, as the trial court ruled, appellant was not detained when he provided consent.
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) Courts applying these principles have held that a consensual encounter is not elevated into a detention simply because a police officer asks a citizen to submit to a search of his person, (People v. Franklin (1987) 192 Cal.App.3d 935, 941) or to a search of his possessions. (Florida v. Bostick (1991) 501 U.S. 429, 431.)
Here, Officers Espinoza and Zozchi approached appellant and Espinoza asked him whether they could search appellant’s person and car. The officers did not block appellant’s exit, display any weapons, or give appellant any verbal commands that indicated he was not free to leave. Espinoza said that appellant was “relaxed” and described his own demeanor as “very casual.” We agree with the trial court and conclude this casual encounter was not a detention. The court correctly denied appellant’s motion to suppress.
Neither of the cases appellant cites convince us the trial court erred. In People v. Gallant (1990) 225 Cal.App.3d 200 , the defendant approached a house where police officers were executing a search warrant. When the defendant knocked on the front door, it was answered by an officer who had his gun drawn. The officer told the defendant he was being detained and ordered him inside. Once inside, an officer ordered the defendant to place his hands on his head and subjected him to a pat search. (Id. at p. 204.) After the pat search, one of the officers asked for and obtained appellant’s consent to search his person and vehicle. (Id. at pp. 203-204.) The Gallant court ruled, based on those facts, that the defendant’s consent to the search was the product of an unlawful detention. (Id. at pp. 207, 211.) Here, by contrast, appellant was not confronted by a gun-wielding officer who told him he was being detained, ordered him inside, and ordered him to place his hands on his head. Gallant is factually distinguishable.
People v. Bailey (1985) 176 Cal.App.3d 402 is even further afield. The defendant there was sitting in a car in a parking lot. An officer in a patrol car pulled in behind the defendant and turned on his emergency lights. (Id. at p. 404.) The Bailey court ruled the defendant had been detained noting that a “reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer.” (Id. at pp. 405-406.) Here, by contrast, appellant was not confronted by officers who had activated their emergency lights. Bailey is not controlling.
Alternately, appellant argues his consent was invalid because as a practical matter, he “was detained while his person and automobile were searched.” (Original italics.) This is so, appellant argues because he “undoubtedly had to stand still during the pat-down search. If he had attempted to leave, the officers would have interpreted his movement as threatening, and physically subdued him. Appellant was likewise unable to depart while . . . Espinoza was searching his car. What was Appellant supposed to do? Drive away with Espinoza’s legs hanging out of the back seat.”
Appellant may not have been able to leave during the brief period that he and his car were actually being searched. But that does not mean appellant was detained in the Constitutional sense. A detention occurs “[o]nly when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty . . . .” (In re Manuel G., supra, 16 Cal.4th at p. 821.) To the extent appellant was restrained during the actual searches, that restraint occurred because appellant had already consented to it. Appellant was not restrained by a show of physical force or authority prior to his consent.
Finally, in a related argument, appellant argues the fact that he was restrained during the search of his car and person is supported by the fact that Officer Espinoza testified that appellant was not free to leave while those searches were actually occurring. However an “officer’s uncommunicated state of mind . . . [is] irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In re Manuel G. supra, 16 Cal.4th at p. 821.)
2. Scope of the Search
Appellant contends the trial court should have granted his motion to suppress because the search of his car exceeded the scope of his consent.
“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect? Generally, the scope of a warrantless search is defined by its expressed object. A consensual search may not legally exceed the scope of the consent supporting it. Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of circumstances. Unless clearly erroneous, we uphold the trial court’s determination.” (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408, internal citations & punctuation omitted.)
Here, appellant granted Officer Espinoza consent to search his car for weapons. In the course of that search, Espinoza found a leather pouch hidden under the molding near the steering wheel. The pouch appeared to have a metal box inside. While the box was relatively small, about two inches by two and one-half inches, a weapon could have been secreted inside. As Officer Espinoza stated while being cross-examined by defense counsel at the motion to suppress:
“Q. [Defense counsel] Wouldn’t it be fair to say that there was not going to be a weapon in that pouch based on your feeling of the pouch?
“A. I could not say that, no.
“Q. Okay. So what two-inch-by-two-and-a-half-inch weapon were you looking for in that pouch?
“A. I said those dimensions are approximate. I can’t recall, and that was the first thing I touched. I didn’t continue touching the whole thing.
“Q. What two-by-two-and-a-half-inch approximately weapon did you expect to find in the pouch?
“A. There’s two-and-a-half-inch blade, a switchblade could be that size.”
The trial court expressly credited Espinoza’s testimony on this point when denying the motion to suppress: “The officer, in his search, found a six-inch pouch with a box in it. And I can’t say that the officer wouldn’t possibly find some weapon in that.”
The trial court was not clearly erroneous when it ruled the search did not exceed the scope of the consent. (People v. Crenshaw, supra, 9 Cal.App.4th at p. 1408.)
Appellant contends the trial court erred because the area where the pouch was found was “most unlikely to conceal a weapon.” Appellant has not cited any testimony or authority that indicates this is true and we are not convinced it is correct. Many cases have noted that weapons may be secreted in various areas of a vehicle. (See, e.g., People v. Hayes (1999) 21 Cal.4th 1211, 1232 [guns hidden in a car’s console]; People v. Buttles (1990) 223 Cal.App.3d 1631, 1635 [handgun concealed in a car’s center console].)
Alternately, appellant contends the trial court’s ruling was incorrect under People v. Leib (1976) 16 Cal.3d 869. We disagree. The court in Leib ruled that a police officer conducting a search for weapons may not seize an object that feels like a narcotics package. (Id. at p. 876.) Here, while Espinoza was searching for weapons, he came upon a box that arguably could contain a weapon. Leib is not controlling.
We conclude the trial court properly denied appellant’s motion to suppress.
Having reached this conclusion, we need not decide whether appellant lacked standing to bring a motion to suppress.
B. Admission of Evidence
At trial, the prosecutor examined Officer Espinoza as follows:
“Q. Officer Espinoza, you identified Mr. Compean as the individual who you contacted on January 10th at approximately 10:40 a.m. in the morning of Lot 1 of Diablo Valley College; is that correct?
“A. That’s correct.
“Q. And has his appearance changed dramatically from that day to today?
“A. Yes.
“Q. And how has it changed?
“[Defense Counsel] Objection, relevance.
“[The Court] One moment. Overruled. You may answer.
“A. Okay. His color at the time of the incident, jet black with a ponytail, mid-back.
“Q. Was he wearing a tie and blazer?
“A. Negative.”
Later during trial, the prosecutor asked Officer Tan, who questioned appellant after his arrest, somewhat similar questions.
“Q. Did Mr. Compean look like he looks today?
“A. No, he did not.
“Q. What’s the difference?
“A. His hair is shorter. It was – he had very long hair past his shoulders. It was very stringy, oily-looking, somewhat dirty.
“Q. Was he – do you recall how he was dressed?
“A. Um, looked like dirty, stained clothing.
“Q. Did you ask Mr. Compean if he was working?
“A. Yes, I did.
“Q. What did he tell you?
“A. He said he was doing odd jobs, fixing computers.
“Q. Did he tell you he had been out of work for two years?
“A. Yes, he did.”
Appellant now contends his conviction must be reversed because questions “concerning the length of [his] hair and his employment status at the time of his arrest [were] patently irrelevant to the issue of guilt or innocence, and [were] elicited only for [their] prejudicial value.”
Appellant did not object in the trial court to any questions about his employment status so he cannot raise that issue on appeal. (Evid. Code, § 353.) Furthermore, appellant told the jurors that he was “going to work” just prior to his arrest. The prosecutor could validly challenge appellant’s credibility on this point.
The questions about the changes in appellant’s appearance and the fact that appellant apparently had cut his hair since the time of his arrest present a closer question. Our Supreme Court has said that it is proper for a prosecutor to comment during argument on the fact that the defendant has changed his appearance since the time of his arrest. (People v. Schmeck (2005) 37 Cal.4th 240, 298.) If a prosecutor can properly comment on a point, it follows that the prosecutor should be able to elicit the evidence upon which such a comment would be based.
In any event, even if we were to assume, arguendo, that the court erred when it allowed the prosecutor to elicit evidence about appellant’s appearance, we would not reverse. The evidence in question was brief and was not particularly relevant. It is not reasonably probable appellant would have achieved a more favorable result absent the error alleged. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The final issue on this point is whether the prosecutor erred when he commented on this point during his final argument.
“Why would you cut your hair? . . . I mean, as you sit here looking at Mr. Compean, seeing him here in a suit and well-groomed, clean and everything, certainly beats grungy clothes, hair down to the middle of his back. I mean, you might think that image is more consistent with someone who might have a bag of drugs in a schoolyard that morning.”
Appellant did not object to the prosecutor’s argument so he cannot raise the issue on appeal. (People v. Schmeck, supra, 37 Cal.4th at p. 298.) Furthermore, as we have stated, our Supreme Court has ruled such comments are proper. (Ibid.)
C. Prosecutorial Misconduct.
Appellant contends his conviction must be reversed because the prosecutor committed misconduct during final argument.
A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Cole (2004) 33 Cal.4th 1158, 1202.) A prosecutor’s misconduct that does not render a trial fundamentally unfair under the federal standard may nevertheless violate California law if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (Ibid.) Where the issue focuses on comments made by the prosecutor before the jury, the question is whether it is reasonably likely the jurors construed or applied the remarks at issue in an objectionable fashion. (Id. at pp. 1202-1203.) When making that determination, we must keep in mind the fact that prosecutor’s have wide latitude to discuss and draw inferences from the evidence. Whether inferences drawn are reasonable is for the jury to decide. (Id. at p. 1203.)
Here, appellant contends the prosecutor committed misconduct by impugning defense counsel. The first instance occurred at the beginning of the prosecutor’s final argument: “Last night, in considering this case, I was thinking about it when I called my mother to chat for a few minutes, and she just happened to ask what I was doing. And I told her I was in trial, which is pretty common. And she asked what the trial was about, and the first thing out of my mouth to her was: About two days too long. [¶] And upon reflecting upon that this morning, that’s true, see? You have been subject[ed] to a goat show a dog and pony show on issues that have nothing to do with the guilt or innocence of the defendant.” (Italics added.)
The prosecutor returned to a similar theme during a later portion of his argument: “Go back to like the minute you walk in, the manipulation starts. Sir, do you believe it’s possible for an officer to lie? What would I care about your answer? What is the meaning of that question, really? It’s not – it’s to plant in everybody’s mind there’s going to be a lying officer coming in here. Because a truer question, a fairer question, a non-manipulative question would be: Do you accept that anybody, not an officer, not a defendant, anybody, could be untruthful? But you see no paint on that. So, it comes other ways. [¶] That manipulation, if you want to call it that, or advocacy, is present in so many forms you can’t possibly be aware of them all.” (Italics added.)
In the rebuttal portion of his argument, the prosecutor stated as follows: “If I had a dollar for every time I saw that chart [explaining the different standards of proof], I could take everybody here and their family to Ruth Chris’ for dinner . . . . there’s an old axiom: If [the] law is on your side, you argue the law. If the facts are on your side, you argue the facts. If you have neither the law nor the facts on your side, spend an hour arguing reasonable doubt . . . . [¶] . . . . [¶] And then, I hear about Forefathers and coats of steel, and dents, and you must do all this before you can brand somebody a criminal. Now, what’s that? That’s manipulation on you.” (Original italics.)
In a related argument, appellant contends these comments were misconduct because they “demeaned the constitutional requirement of proof beyond a reasonable doubt” and “ridicul[ed] defense counsel’s reference to ‘forefathers’ . . . .” Appellant cannot raise these arguments because he failed to object in the court below. Furthermore, to prevail on this claim, appellant would have to show a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.) The challenged comments, when read in context were brief and relatively mild. It is not reasonably likely the jurors interpreted these comments in an improper or erroneous manner.
Appellant now challenges these comments, and particularly the portions we have italicized arguing the prosecutor committed misconduct by “attack[ing] defense counsel’s integrity . . . .”
The first hurdle appellant faces is that trial counsel did not object to any of these comments. As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless he objected to the misconduct in the court below and asked that the jury be admonished to disregard the impropriety. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If no objection was made, the point is reviewable on appeal only if an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.) Here, any harm caused by the misconduct alleged could have been cured by an appropriate admonition. Therefore, appellant’s failure to object bars his claim on appeal.
Furthermore, we are not convinced that counsel committed misconduct as alleged. A prosecutor commits misconduct if he attacks the integrity of defense counsel or casts aspersions on her. (People v. Hill (1998) 17 Cal.4th 800, 832.) However, a prosecutor is permitted to challenge and criticize defense tactics. For example, in People v. Cunningham, supra, 25 Cal.4th at pages 1002-1003, the prosecutor told the jurors that defense counsel’s job was to “create straw men” and to “put up smoke” and “red herrings.” Our Supreme Court ruled the comments were proper because they would have been understood by the jurors as an admonition that they should not be misled by the defense counsel’s interpretation of the evidence. (Id. at p. 1003.) Similarly, in People v. Cummings (1993) 4 Cal.4th 1233, 1302, the court ruled a prosecutor’s comment accusing the defense of attempting to hide the truth was not misconduct. In People v. Marquez (1992) 1 Cal.4th 553, 575-576, the court ruled that the prosecutor’s comment that a “heavy, heavy smokescreen . . . has been laid down [by the defense] to hide the truth from you” constituted a proper argument in response to the defense presented.
We reach a similar conclusion here. Comments by the prosecutor that the defense had presented a “dog and pony show” or accusing the defense of manipulation would have been understood by the jurors as an admonition that they should not be misled by defense counsel’s interpretation of the evidence, and not as a personal attack on defense counsel. We conclude there was no prejudicial misconduct.
Appellant’s next argument is based on the following passage from the prosecutor’s final argument:
“[Prosecutor] Nobody is going to fingerprint a little baggie like you see there. This is not “CSI”. These are the economic realities and times of Contra Costa County.
“[Defense counsel] Objection, Your Honor. There has been no evidence as to the economic reality of fingerprinting.
“[The Court] Sustained.
“[Prosecutor] All of ya’ll lives in this county, I think you know the economic realities of it.
“[Defense counsel] Objection, Your Honor. There has been no evidence.
“[The Court] Sustained.
“[Prosecutor] You are entitled to consider things within your knowledge. Don’t come in here with an empty head. I believe we went through that, about your experience would be useful. Now, everyone knows you are not going to fingerprint one of those little baggies, but
“[Defense counsel] Objection, Your Honor, there has been no evidence evinced today that
“[The Court] Sustained.”
Appellant now argues the prosecutor’s comments about the cost of fingerprinting were misconduct because they were based on facts that were not in evidence. While it is true neither party presented evidence about the costs of fingerprinting, it is also true that defense counsel objected on this ground in the court below and the court sustained each objection. The jurors were told they should ignore matters to which an objection has been sustained. The jurors were also instructed that statements by the attorneys at trial were not evidence. We conclude it is not reasonably likely the jurors construed or applied the remarks at issue in an objectionable fashion. (People v. Cole, supra, 33 Cal.4th at pp. 1202-1203.)
Appellant’s final argument is based on the following comment by the prosecutor:
“Kind of reminds me of what Bill Clinton said to George Bush, when Bush was walking in the White House, and Clinton was walking out. This is a true story. Bill Clinton looks at George Bush and says: Well now, Mr. President, you are gonna learn it’s easier to throw hand grenades than it is to catch them. [¶] Because that’s all you are doing. You wanted the bags printed, you could have printed them. It’s easier to argue no one did it, right?”
Appellant suggests this comment was improper because the facts of any conversation between Presidents Clinton and Bush were not in evidence. We disagree. It has long been settled 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. (People v. Hill, supra, 17 Cal.4th at p. 819.) To the extent appellant maintains the prosecutor committed misconduct by commenting on appellant’s failure to present fingerprint evidence, we simply disagree. (See, e.g., People v. Johnson (1989) 47 Cal.3d 1194, 1236 [no error in the argument that “if there has been some or is some defense to this case, you’d either have heard it by now or for some reason nobody’s talking about it”]; People v. Ratliff (1986) 41 Cal.3d 675, 691 [no error in the argument that “is there any evidence on the other side? Any evidence at all? None has been presented to you.”].)
We conclude counsel did not commit prejudicial misconduct during final argument.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Needham, J.