Opinion
D072168 D074287
08-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES D. COON, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE359655) CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County, Robert O. Amador, Judge. Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
James D. Coon appeals his jury-tried convictions for manufacturing concentrated cannabis (Health & Saf. Code, § 11379.6, subd. (a); count 1) and possessing methamphetamine for sale (§ 11378; count 2). In separate proceedings, Coon admitted he had a prior conviction for possessing methamphetamine for sale (former § 11370.2, subd. (c), as amended by Stats. 1998, ch. 936, § 1). Initially, the court sentenced Coon to a split sentence of five years in jail followed by three years of mandatory supervision on count 1, a concurrent two-year jail term on count 2, and a consecutive three-year jail term for the prior conviction. Subsequently, after Coon successfully challenged part of his sentence in In re Coon (Apr. 4, 2018, D073583) [nonpub. opn.] and while this appeal was pending, the trial court resentenced Coon to a split sentence of four years in jail followed by one year of mandatory supervision on count 1 and a concurrent two-year jail term on count 2.
Undesignated statutory references are to the Health and Safety Code.
We ordered Coon's appeal from the judgment after resentencing to be consolidated with his initial appeal.
Coon contends his convictions should be reversed because (1) the court erroneously instructed with CALCRIM No. 207, (2) his conviction for possessing methamphetamine for sale is not supported by substantial evidence, (3) the prosecutor committed misconduct in closing argument, and (4) the court did not compel the People to confer use immunity to a witness. He also asks us to review in camera proceedings on his motion to disclose a confidential informant's identity. We reject each of Coon's assertions of error and determine the court properly kept the informant's identity confidential.
Coon also raised a sentencing issue on appeal, which was resolved in In re Coon, supra, D073583.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's Case
On April 1, 2016, San Diego County sheriff's deputies executed a search warrant at a home in Spring Valley. Surveillance cameras covered the outside of the property, including one camera affixed to a pole on the roof. A monitor in Coon's bedroom displayed live video from all six cameras.
Coon was in a back bedroom when deputies executed the search warrant. Inside Coon's room deputies found the following:
a. 11.7 grams of methamphetamine, which is approximately 230 separate doses.
b. Drug packaging materials (ziplock bags, cellophane wrappers, and plastic containers).
c. Two $100 bills.
d. A digital scale with white residue.
e. A stun gun.
f. Nine rounds of .22 caliber ammunition.
g. Concentrated cannabis, marijuana, butane, a filter with concentrated cannabis residue, and an aluminum cylinder—i.e., a concentrated cannabis extraction device—that was packed with marijuana.
In count 3 the People charged Coon with being a felon in possession of ammunition. Coon testified that after he was convicted of a prior felony, police confiscated all his guns and ammunition, and he did not know that these nine bullets remained. The court dismissed this count after the jury reported it was hopelessly deadlocked.
Concentrated cannabis is made by passing butane through a cylinder packed with marijuana. When the liquid butane vaporizes, the residue is concentrated cannabis.
In a bathroom attached to Coon's bedroom, deputies found a crystalline substance in the toilet bowl, indicating that Coon flushed methamphetamine down the toilet in the two to three minutes it took for deputies to get in the front door and find his bedroom. Deputies were unable to recover methamphetamine from the toilet because the crystals dissolved when a deputy tried to scoop them out, and the deputy did not take a water sample.
The jury found Coon was not guilty of destroying or concealing evidence.
In a backyard shed deputies found drug packaging materials (baggies and cellophane), butane canisters, another concentrated cannabis extraction device, approximately 11 pounds of marijuana, concentrated cannabis, and scissors used to remove concentrated cannabis from a dish.
B. Defense Case
Coon testified in his own defense. He admitted being an "expert" in making concentrated cannabis, but stated he had not manufactured any since 2009 or 2010. He testified that the marijuana and concentrated cannabis in the shed were "leftovers from years ago." He claimed that he last made concentrated cannabis in "2013, maybe 2014, maybe. Maybe 2012."
Coon testified that his 92-year-old mother owns the house and he rarely stayed there. He testified that the surveillance cameras were there solely to monitor his mother's safety while she was outside gardening.
Contradicting Coon's testimony, his mother testified that Coon lives there and the cameras were to watch other people.
Coon testified that the methamphetamine in his bedroom was not his and he had no idea how it got there. He also testified that the marijuana in the shed belonged to his brother-in-law, who lived in the house and had the only key to the shed. Coon admitted owning the butane, but claimed he used it only for smoking marijuana because "it's easier than lighting matches all the time."
Contradicting Coon's testimony, his brother-in-law testified that only Coon had a key to the shed and most of the marijuana was Coon's.
Coon admitted that he owned the concentrated cannabis device found in his bedroom; however, he testified that he last made concentrated cannabis in 2012 or 2013 (even though the canister was packed full of marijuana). Asked to explain why he had 10 pounds of marijuana, Coon testified, "I smoke a lot of weed."
Coon denied selling methamphetamine. He testified that he had "brand new little ziploc baggies" and plastic containers in his room because he simply enjoyed collecting them. Coon testified that the digital scale was for weighing gold, which he also collected. He had "no idea" how methamphetamine residue got on the scale.
Bailey C., a caretaker for Coon's mother, testified that Coon was not living at the home and would be there only periodically, two or three times a week, to check on his mother. Bailey testified that Jeff P., a methamphetamine addict, was frequently at the house and she saw him "break into" Coon's bedroom two or three days before deputies executed the search warrant.
Eric P., whose solar energy company employed Coon, testified that Coon was making about $5,000 per week in commissions. Coon argues this showed he had neither motive nor time to make concentrated cannabis.
DISCUSSION
I. NO ERROR IN GIVING CALCRIM NO. 207
A. Additional Background
The amended information charges that "[o]n or about April 1, 2016," Coon unlawfully manufactured concentrated cannabis. Coon argued that he was not guilty of the crime because he stopped making concentrated cannabis about three years earlier.
Outside the jury's presence, the court indicated that it would instruct with CALCRIM No. 207, which states: "It is alleged that the crime occurred on or about April 1st, 2016. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day." (Italics added.) The following discussion then occurred between the court and Coon's lawyer:
"[Coon's lawyer]: That means it took place on that day or reasonably close to that day; correct?
"The Court: Yes.
"[Coon's lawyer]: It could be a week before or maybe even two weeks before?
"The Court: Right. He can't say it was a year before.
"[Coon's lawyer]: No.
"The Court: Or something like that; all right?
"[Coon's lawyer]: All right."
The court instructed with CALCRIM No. 207. In closing argument, the prosecutor argued that "reasonably close" to April 1, 2016, meant that Coon "had just been" manufacturing concentrated cannabis:
"[Coon] did not manufacture that concentrated cannabis three years prior, a month prior. [Coon] had just been doing it. He had not been doing it on April 1st at 8 a.m. in the morning, because he was busy dumping the meth in the toilet. He is not caught in the act right then. But he had been manufacturing the concentrated cannabis reasonably close to April 1. And even the charging document says 'on or about April 1.'"
In his closing, Coon's lawyer stated that if the concentrated cannabis manufacturing occurred "a month, two months, three months" [before April 1, 2016], you have to acquit my client. That's the law." He added:
"There's no doubt that [concentrated cannabis] was made in it, because you see the wax coming out at least one of the ends. But when was it made? Jury instruction[:] Reasonably close. Three or four days. Maybe within a week. Anything beyond that, it's not proved in this case."
In rebuttal argument, the prosecutor told the jury, "The People are not required to prove when the crimes took place, but only that it happened reasonably close to that day." Although Coon's lawyer had argued that "reasonably close" meant "three or four days. Not weeks. Not months," in rebuttal argument the prosecutor said the jury would "determine what reasonably close is for this purpose."
B. Coon's Contentions
Coon contends CALCRIM No. 207 misstates the law by instructing that jurors may convict so long as they find the offense was committed "reasonably close" to the charged date. Coon concedes that an accusatory pleading is not required to specify the exact date of an offense, but may properly state an offense occurred "on or about" a certain date. However, Coon contends that "reasonably close" does not mean the same thing as "on or about," and in this case, the instruction, as argued by the prosecutor, allowed jurors to define "reasonably close" to mean "any time," which would include when Coon admitted making the concentrated cannabis in 2013. Coon contends the error is prejudicial because the physical evidence did not conclusively show manufacturing concentrated cannabis occurred "'on or about April 1, 2016.'"
For example, a letter dated 2013 to Coon was in the shed, the concentrated cannabis cylinder was stuck closed, and the concentrated cannabis was not tested to determine when it was made.
C. Analysis
The Attorney General first contends that Coon forfeited this issue by failing to object to CALCRIM No. 207 or request that it be modified. However, even where a defendant does not object to an instruction, the contention that an instruction is erroneous is not forfeited where the instruction affected the defendant's substantial rights. (§ 1259; People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) Accordingly, we consider Coon's claim on the merits because "[a]scertaining whether claimed instruction error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) Where the "determination of error depends on the meaning communicated by an instruction, we must ascertain how a hypothetical 'reasonable juror' would have, or at least could have, understood the words in question." (People v. Mickey (1991) 54 Cal.3d 612, 670.) "'[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.'" (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Additionally, we interpret the given instructions "'so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Contrary to Coon's contention, CALCRIM No. 207 is a correct statement of law because "on or about" and "reasonably close" are synonymous in this context. (See United States v. Champion (11th Cir. 1987) 813 F.2d 1154, 1168 ["When the prosecution uses the 'on or about' designation, proof of a date reasonably near to the specified date is sufficient."]; United States v. Leibowitz (7th Cir. 1988) 857 F.2d 373, 379 ["The courts agree that when the indictment uses the 'on or about' designation, proof of a date reasonably near to the specified date is sufficient."]; People v. Rojas (2015) 237 Cal.App.4th 1298, 1304 ["CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date."].)
Here, the jury was adequately apprised of the applicable time period. No reasonable juror could have believed that manufacturing concentrated cannabis between 2012 and 2014—as Coon claimed he did—was "reasonably close" to April 1, 2016. Without attempting to determine the maximum allowable latitude that may be given the phrase "reasonably close," to people of common sense, as members of a jury are presumed to be, the expression "reasonably close" to April 1, 2016, certainly does not mean a variation of months or years.
II. THE COURT DID NOT ABUSE ITS DISCRETION IN NOT DISCLOSING THE
IDENTITY OF THE CONFIDENTIAL INFORMANT
A. Additional Background
On March 23, 2016, the court issued a warrant to search Coon's home for evidence related to possession and sale of methamphetamine. The warrant was based on information from a confidential informant related by San Diego County Sheriff's Deputy Wesley Manning.
Before trial, Coon sought disclosure of the informant's identity, asserting that the informant would be a material witness if he or she was a member of his household. The court conducted an in camera hearing in the presence of the prosecutor and Deputy Manning, whose affidavit established probable cause for the warrant. After those sealed proceedings, the court denied Coon's motion, finding that disclosure would risk harm to the confidential informant, who had no exculpatory evidence.
Coon asks us to independently review the in camera proceedings to determine whether the court should have granted his motion to unseal the search warrant affidavit's contents and the confidential informant's identity. The Attorney General concedes that Coon is entitled to this independent review.
B. The Standard of Review
"We review the trial court's ruling concerning the disclosure of the identity of a confidential informant under the abuse of discretion standard." (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
C. Applicable Legal Principles
Generally, "a public entity has a privilege to refuse to disclose the identity of a person who has furnished information purporting to expose a violation of a law and to prevent another from disclosing such identity if disclosure is against the public interest because there is a necessity for preserving the confidentiality of the informant's identity that outweighs the necessity for disclosure in the interest of justice." (People v. Ruiz (1992) 9 Cal.App.4th 1485, 1488.)
However, the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges. (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851.) "An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant." (People v. Lawley (2002) 27 Cal.4th 102, 159 (Lawley), citing People v. Borunda (1974) 11 Cal.3d 523, 527.)
The defendant bears the burden of adducing "'"'some evidence'"'" on this issue. (Lawley, supra, 27 Cal.4th at p. 159.) That showing "'must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility.'" (People v. Luera (2001) 86 Cal.App.4th 513, 526.)
The defendant will have difficulty meeting this burden of proof when the confidential informant was not a percipient witness to the crime charged. In such circumstances, the possibility that the confidential informant could offer material evidence exonerating the defendant is typically speculative. (People v. Austin (1994) 23 Cal.App.4th 1596, 1610, disapproved on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861.)
When a defendant is charged with possessing narcotics based on police discovery of contraband in a specific location, the disclosure of a nonparticipating informant who was not an eyewitness is required only if the confidential informant has a very recent observation of contraband at that location when the defendant was not or may not have been present. (People v. Fried (1989) 214 Cal.App.3d 1309, 1316.) A lapse of five days between a confidential informant's observations and the search revealing possession of narcotics has been held to render the confidential informant's observations insufficiently recent to justify disclosure of his or her identity. (Ibid.) Where no facts establish the presence of the confidential informant at the scene of the search, a court may find there is no reasonable possibility that the informant could offer evidence bearing on the defendant's guilt or innocence of the possession charge. (Id. at pp. 1316-1317.)
Coon cites Williams v. Superior Court (1974) 38 Cal.App.3d 412, 423 for the proposition that where contraband is found in the defendant's home, "the 'finger pointer' is always material because he or she could help the defendant prove the contraband belongs to someone else." However, Williams does not support any such broad rule. Rather, the court in Williams expressly limited its holding to cases where an informant made a "very recent observation" of contraband. (Ibid.)
We have conducted the requested review and conclude that the court did not abuse its discretion in denying Coon's motion. The record demonstrates the court had sufficient information to determine that the informant was not a material witness. There is no evidence that the confidential informant was present at the search or had recently been at Coon's home. Moreover, the confidential informant was a nonparticipant and non-eyewitness to the charged offenses. The prosecution did not prove that Coon possessed methamphetamine for sale by introducing evidence that he actually sold some to the confidential informant. Rather, it relied on the quantity of methamphetamine found in Coon's room plus packaging materials and a scale—items that are associated with methamphetamine for sale rather than for personal use. (See People v. Alderrou (1987) 191 Cal.App.3d 1074, 1081-1082.)
III. COON'S CONVICTION FOR POSSESSING METHAMPHETAMINE FOR SALE IS
SUPPORTED BY SUBSTANTIAL EVIDENCE
A. Additional Background
Manning was one of several deputies who executed the search warrant at Coon's home. Manning testified, "I believe that methamphetamine with the packaging was with the intent to sell or furnish to give away." Manning further testified, "[H]ow often do you go to Costco and buy 10 24-packs of beer? If you're going to have a party. But then at a party, I would assume you are going to pass those beers to friends."
B. Coon's Contention
Coon was convicted of possessing methamphetamine for sale in violation of section 11378. "'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character.'" (People v. Harris (2000) 83 Cal.App.4th 371, 374 (Harris).) Focusing on Manning's testimony that in his opinion Coon possessed methamphetamine "with the intent to sell or furnish to give away" (italics added), Coon contends possession with an intent to give away is not a violation of section 11378 and "[t]here was no other substantial evidence . . . to support a finding there was possession with the intent to sell, either."
C. The Standard of Review
When we review a judgment for sufficiency of the evidence supporting the verdict, we presume every fact that the jury could reasonably deduce from the evidence and view the whole record in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.) "Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence." (People v. Clark (2011) 52 Cal.4th 856, 943.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) Reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
D. Analysis
"Intent to sell may be established by circumstantial evidence." (Harris, supra, 83 Cal.App.4th at p. 374.) Here, entirely apart from the challenged portion of Manning's opinion testimony, there was evidence that Coon possessed a large quantity of methamphetamine—230 individual doses—together with packaging materials and a digital scale. Moreover, in testimony Coon does not address, Manning also testified, "[B]ased upon the evidence presented at the scene with all the packaging, the scales, . . . that methamphetamine could have easily have been broken into whatever denomination a user wanted, and sold." (Italics added.) Thus, when Manning's opinion testimony is considered in the context of the entire record, there is sufficient evidence to support the jury's conclusion that Coon had the requisite intent to sell. (People v. Ramos (2016) 244 Cal.App.4th 99, 104 [substantial evidence supports finding of intent to sell where defendant possesses a large quantity of methamphetamine, a digital scale, and packaging materials].)
Moreover, attempting to explain away the drug packaging materials, Coon testified that he "just kept brand new empty baggies" and "didn't put nothing in them" because he "just like[d] to keep these brand-new little ziploc baggies." Coon also testified that the digital scale with white residue on it was for weighing gold. He further testified that the cellophane wrappers commonly used for packaging drugs for sale were trash, but he kept them in a jar anyway. This testimony was absurd and the jury was entitled to reject it.
IV. NO PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT
A. Additional Background
Jeff P. is a methamphetamine addict who frequently was present at Coon's home. When executing the search warrant, deputies arrested him in the backyard after finding a gram of methamphetamine in a small plastic container in his pocket.
Outside the jury's presence, the court conducted a hearing to determine if Jeff P. would testify in front of the jury or instead invoke Fifth Amendment rights. In particular, Coon's lawyer wanted Jeff P. to testify that he signed a statement admitting that drugs found at Coon's home were Jeff P.'s and not Coon's.
In that hearing, Jeff P. denied signing a statement absolving Coon of any wrongdoing. He invoked his Fifth Amendment right when Coon's lawyer asked a follow-up question: "Did you come to my office on an occasion after April 16th and talk with me about the case?" Jeff P. also invoked the Fifth Amendment, refusing to answer whether he spent "any time" in Coon's bedroom and "who made the hash oil?" Asked if he had a gram of methamphetamine in his pocket on April 1, 2016, Jeff P. invoked his Fifth Amendment privilege. He did testify, however, that he purchased this methamphetamine from someone other than Coon.
The court ruled that Jeff P. had a valid Fifth Amendment privilege and, therefore, could not be called as a witness. Coon does not challenge the correctness of that ruling. Instead, he argues that the prosecutor took unfair advantage of the ruling in closing argument.
In closing argument, to support a conviction for possessing methamphetamine with the intent to sell, the prosecutor argued that the plastic container in Jeff P.'s pocket containing methamphetamine was similar to those found in Coon's bedroom, and the methamphetamine looked like that found in Coon's bedroom. With no objection, the prosecutor told the jury, "Circumstantial evidence also is common sense. Ladies and gentlemen, [Coon] had just given Jeff P. . . . the meth. [Coon] had just made a deal to Jeff P."
B. Coon's Contention
Coon contends the prosecutor committed misconduct—unfairly taking advantage of the court's ruling prohibiting Jeff P. from testifying—by arguing that Coon sold Jeff P. the methamphetamine, despite knowing that outside the jury's presence, Jeff P. testified that Coon did not sell him that methamphetamine.
C. Analysis
The Attorney General contends, and we agree, that Coon has forfeited this contention by failing to object. Generally, "'"'a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.'"'" (People v. Cunningham (2001) 25 Cal.4th 926, 1000 (Cunningham).) Where no objection is made, the point is forfeited unless an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.) Here, because any harm could have been cured by an admonition to the jury, Coon's failure timely to object and request the court to admonish the jury precludes his claim of misconduct. (See id. at p. 1001.)
In his reply, Coon contends his failure to object should not result in forfeiture because any objection would have been futile. However, while it would have been futile during closing argument to object to the court's ruling on Jeff P.'s Fifth Amendment privilege, the issue here is quite different—that is, whether the prosecutor took unfair advantage of that ruling in closing argument. If Coon had objected during closing argument, the court could have addressed his concern by admonishing the jury to disregard that portion of the prosecutor's argument. Coon does not explain how such an admonishment would have been futile.
Moreover, even if the claim had not been forfeited, it would fail on the merits. "A prosecutor engages in misconduct by misstating facts or referring to facts not in evidence, but he or she enjoys wide latitude in commenting on the evidence, including urging the jury to make reasonable inferences and deductions therefrom." (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353.) Here, the prosecutor's argument was a fair comment on the evidence actually before the jury. Photographs received in evidence showed the type of drug packaging materials found in Jeff P.'s pocket and those in Coon's bedroom, as well as the methamphetamine deputies found both in Jeff P.'s pocket and in Coon's bedroom. Significantly, the prosecutor did not argue that the jury should draw inferences against Coon because Jeff P. did not testify—that would have been misconduct—but the prosecutor here did no such thing. Coon's argument fails because prosecutors do not commit misconduct by "limiting their jury argument to the evidence the jury actually heard." (People v. Cordova (2015) 62 Cal.4th 104, 137.)
See People v. Frohner (1976) 65 Cal.App.3d 94, 108-109 [the prosecutor committed misconduct when, knowing a witness was unavailable and could not be subpoenaed, argued to the jury that the defendant could have subpoenaed that witness].) --------
Disagreeing with this result, Coon cites Cunningham, supra, 25 Cal.4th 926, People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), and People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett). However, none of these cases supports Coon's argument.
In Cunningham, the defendant argued that the prosecutor committed misconduct by suggesting to the jury that defendant deliberately had changed his appearance to raise doubts about his identity as the perpetrator. Defendant claimed that was misconduct because the prosecutor knew, from pretrial proceedings, that defendant had medically necessary dental work performed. (Cunningham, supra, 25 Cal.4th at p. 999.) The California Supreme Court indicated that the prosecutor's argument would be improper if he knew such changes were motivated solely by medical necessity. (Id. at p. 1001.) Cunningham is off point because here, no evidence received outside the jury's presence established that Coon did not sell Jeff P. methamphetamine. Indeed, circumstantial evidence received at trial strongly suggested to the contrary: Jeff P. was caught on the premises with methamphetamine in his pocket—methamphetamine bearing a striking similarity in appearance and packaging to that in Coon's nearby room. The fact that Jeff P.—a methamphetamine addict who has at least 20 prior drug convictions—denied buying the methamphetamine from Coon does not bind the prosecutor to Jeff P.'s version of the facts when reasonable inferences from the properly admissible evidence are contrary.
Coon's reliance on Ochoa, supra, 19 Cal.4th 353 is also unavailing. There, the prosecutor commented in closing argument on the defendant's failure to elicit evidence supporting a diminished capacity defense. The court in Ochoa held this was misconduct because the diminished capacity defense had been abolished and, therefore, the evidence would have been inadmissible. (Id. at pp. 430-431.) Ochoa does not help Coon because the prosecutor here did not make an argument based on the absence of inadmissible evidence. Rather, the prosecutor asked the jury to draw inferences based on properly admitted evidence.
Daggett, supra, 225 Cal.App.3d 751 also does not help Coon's argument. There, the defendant allegedly committed sexual offenses against a victim. The trial court erroneously excluded evidence that others previously had committed sexual offenses against the victim, but admitted evidence suggesting the victim previously had sexually victimized others. The prosecutor argued to the jury that if the victim sexually victimized others, the victim must have learned that behavior from the defendant. The prosecutor thus knew his argument conflicted with the excluded evidence (id. at pp. 757-758) and the prosecutor thereby "unfairly took advantage of the judge's ruling." (Id. at p. 758.) Daggett is off point because nothing in Daggett suggests there was evidence upon which the prosecutor could have based his argument other than the erroneously excluded evidence. In sharp contrast here, the prosecutor based his argument on properly admissible evidence that allowed the jury to compare the methamphetamine and packaging materials that Coon possessed to those in Jeff P.'s pocket.
V. IMMUNITY
People v. Masters (2016) 62 Cal.4th 1019 (Masters) holds "California courts have no authority to confer use immunity on witnesses." (Id. at p. 1051.) However, citing two Ninth Circuit cases, United States v. Wilkes (9th Cir. 2011) 662 F.3d 524, 534 and United States v. Straub (9th Cir. 2008) 538 F.3d 1147, 1162, Coon asserts the trial court should have compelled use immunity for Jeff P. so that he could not have invoked his Fifth Amendment rights and could thus be compelled to testify for Coon.
In making this argument, Coon acknowledges that as an intermediate appellate court, we are bound by Masters, supra, 62 Cal.4th 1019. Coon states that he raises this issue "solely to preserve it for federal review."
There was no error. (Masters, supra, 62 Cal.4th 1919; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, it is unnecessary to consider Coon's related argument that the asserted error was prejudicial.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. GUERRERO, J.