Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from judgments of the Superior Court of Los Angeles County No. LA040059. John S. Fisher, Judge.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant Diana L. Cox.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Donald D. Cox.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Marc E. Turchin, Chung L. Mar, Lance E. Winters and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted appellants Diana Cox and Donald Cox, husband and wife, of manufacturing methamphetamine in violation of Health and Safety Code section 11379.6, subdivision (a) (count 1) and possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) (count 2). Diana admitted that she suffered two prior convictions for violating Health and Safety Code section 11378 within the meaning of Penal Code section 1203, subdivision (e)(4); Penal Code section 667.5, subdivision (b); and Health and Safety Code section 11370.2. Donald admitted having suffered a prior conviction for violating Health and Safety Code section 11378 within the meaning of Health and Safety Code section 11370.2, subdivision (a).
The trial court sentenced Diana to a total of 11 years in state prison. The sentence consisted of the high term of seven years on count 1, with an additional three years for the prior conviction and an additional one year for the prison prior on that count. On count 2, the court imposed the midterm of two years to run concurrently to count 1.
The court sentenced Donald to a total of 10 years in state prison. The sentence consisted of the high term of seven years in count 1, and three years for the prior conviction allegation.
Diana contends on appeal that: (1) the trial court committed reversible error in excluding the testimony of Mike Whelan in violation of appellant’s right to compulsory process, the right to confront witnesses, and the right to present a defense; and (2) the trial court abused its discretion in failing to refer appellant to the California Rehabilitation Center (CRC).
Donald contends on appeal that: (1) his convictions must be reversed because the evidence was insufficient to support a finding that he exercised dominion and control over the premises and property located at 7109 Gerald Avenue; (2) the trial court committed reversible error when it lessened the prosecution’s burden of proof by failing to instruct the jury that mere presence at the crime scene or mere knowledge that a crime is being committed and failure to prevent it does not amount to aiding and abetting; (3) the trial court committed reversible error by failing to instruct sua sponte on the principles regarding accomplice testimony; (4) his convictions must be reversed because the prosecutor committed repeated acts of prejudicial misconduct during closing argument; and (5) the cumulative effect of the errors requires the reversal of his convictions.
Both appellants contend that imposing the upper term violated their federal constitutional rights to proof beyond a reasonable doubt and the right to a jury trial under the Sixth Amendment to the United States Constitution, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
In our original opinion filed on September 13, 2005, we affirmed the judgments. (People v. Diana L. Cox and Donald D. Cox, B171844 [nonpub. opn.].) Appellants’ petition for review was denied by the California Supreme Court on December 21, 2005 (S137881). The United States Supreme Court granted appellants’ petition for writ of certiorari and, on February 20, 2007, the high court vacated the judgment and remanded the matter to this court for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).
We requested and received supplemental briefing from the parties regarding the effect, if any, of Cunningham and of the California Supreme Court’s recent opinions in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) on appellants’ last issue—the imposition of the upper term in both of appellants’ sentences.
Except for the discussion of the Cunningham issue, this opinion is substantially the same as the previously-filed opinion.
FACTS
On March 7, 2002, Detective James Kaiser, Detective Frank Lyga, Officer Steven Stear and other members of the Los Angeles Police Department executed a warrant at 7109 Gerald Avenue in Van Nuys. After announcing their presence with a bull horn, the police forced open the doors of the industrial warehouse-type facility. Appellants were lying on a mattress in a room partitioned off from the main bay of the warehouse. In this sleeping area police found two women’s purses. Inside one was a wallet and a Ziploc baggie containing a crystalline substance resembling methamphetamine. Inside the other purse police found Diana’s driver’s license. There was also a glass pie plate with a business card bearing the name of Diana Cox lying inside and the remains of a white crystalline substance resembling methamphetamine. The card appeared to have been used to form a line of methamphetamine for ingesting. There was also a copy of the physicians desk reference.
The search of the premises also yielded several glass pipes, water pipes, two glass containers that could be used in a pill crunch, a butane or propane tank, funnels, a can of denatured alcohol, muriatic acid, acetone, paint thinner, methyl ethyl ketone, toluene, gas and electric burners, a flat-bottomed glass flask, and an electric gram scale. The police also found some tubing with a substance clinging to it. The substance resembled red sludge—a reaction mixture produced during the manufacture of methamphetamine. There was drain cleaner, which contains sulfuric acid, a substance used to make hydrogen chloride gas. There was a large turkey baster, a tool typically used to separate layered liquids. There was also a can of methyl sulfonil methane (MSM), a joint supplement that is the most common cutting agent for methamphetamine.
In the freezer side of a refrigerator on the premises police found a 250 milliliter glass beaker. The beaker contained approximately 75 milliliters of a clear liquid, and crystals were forming around the top. The contents of the beaker were placed in three 1-ounce sample cups for testing.
The police also searched vehicles parked in the lot behind the warehouse. Inside a Datsun pickup they found a one-gallon can containing naphtha and two quarts of solvents. These are used in the filtration of red sludge and production of a bi-layered liquid consisting of methamphetamine on the top and waste on the bottom. There was also a fan, isopropyl alcohol, and MSM.
Police searched a brown van and found a man named David Johann sleeping on a mattress inside. Behind the van, police found two jugs of muriatic acid. Inside the van was a glass flask that could be used in the cooking of methamphetamine. Police found 46 glass methamphetamine pipes of the type used to smoke crystal methamphetamine. There was also a gram scale and a benzomatic torch.
Police searched a motor home on the premises and found it occupied by Denise Clark and Douglas Kramer. Inside the motor home police found an electronic gram scale with a white substance on it. They also found a syringe loaded with a substance that appeared to be liquid methamphetamine and a shot glass caked with what appeared to be methamphetamine residue.
Detective Kaiser acknowledged that a legitimate business appeared to operate from the warehouse. It appeared that water pipes were manufactured, and there was evidence of packaged silk-screened T-shirts. There were large quantities of salvia divinorum, which is a plant substance that is not controlled. Some of the salvia was in a liquid form and some was in baggies.
Detective Kaiser was of the opinion that the warehouse at 7109 Gerald Avenue was used to manufacture methamphetamine. He believed that police found what was known as a “boxed up lab.” This was a lab where the final crystallization stage was in progress and the equipment used to cook the methamphetamine has been put away.
The warehouse landlord, Richard Held, testified at appellants’ trial that he leased the space to appellants and that they appeared to reside at the warehouse. The lease was in Diana’s name, and she often paid the rent in person. He said he sometimes noticed odors at the warehouse.
Fingerprint specialists from the Los Angeles Police Department matched a print from Diana to a naphtha can, and a print from Donald to a different naphtha can.
Mercedes Burch was living in the warehouse in March 2002, but she was not present when the search took place. The Coxes had invited her to share their home at the warehouse because Burch had nowhere to go. She also worked for them in the water pipe manufacturing business. Burch typed a letter to Deputy District Attorney Dale Cutler in which she explained that it was she who put the beaker of methamphetamine in the freezer. She said she did it because her ex-boyfriend, John Paul, asked her to clean some speed for him. Burch said she filled up the beaker with acetone. Burch had to leave the premises without taking the beaker because Diana was sitting in front of the refrigerator and was not leaving that spot. Burch did not want Diana to know what she had done because Diana was against drugs.
When Burch was interviewed by Detective Kaiser regarding the letter, she eventually admitted it was not true. This occurred after Kaiser explained to Burch that she was admitting to a felony and her child might be taken from her. Burch told Kaiser that a man named Scott, whom she did not know, put the beaker in the freezer. At trial, Burch revealed that Diana had actually written out the letter for Burch to type. Diana’s daughter Jennifer supervised the typing. Burch maintained at trial that the man named Scott put the beaker in the freezer.
Detective Kaiser testified regarding the different methods of manufacturing methamphetamine. He stated that pseudoephedrine pills, sold in cold medications like Sudafed, are commonly used to manufacture methamphetamine. The pills are crunched and separated from their binders. The separation is performed by putting the pills in solvents like denatured alcohol and acetone. The binder falls to the bottom and the liquid is filtered. The liquid is then heated so that the solvent evaporates. The ephedrine residue is then cooked for eight to 12 hours with chemicals to convert it to methamphetamine. The cooking yields a red sludge material, which is filtered to trap the waste. The remaining solution contains methamphetamine. The solution is further processed through several stages using various chemicals. The final stage is known as crystallization. The powder becomes white crystals. This form is more expensive and easier to smoke.
Stephanie Thomas, a criminalist for the Los Angeles Police Department, tested the contents of an envelope found at the warehouse and concluded that the contents consisted of methamphetamine. The contents of the envelope came from the baggie found in one of the purses. Thomas found methamphetamine in the remains of a substance adhering to a drinking glass from the warehouse. Another criminalist, Edgardo Eugenio, analyzed the clear yellow liquid found in the freezer and determined it contained methamphetamine and ephedrine. Eugenio analyzed a plastic tube with solid red material inside. He concluded that methamphetamine was present in the material.
DISCUSSION
I. Diana’s Contentions
A. Exclusion of Mike Whelan’s Testimony
1. Proceedings Below
In the midst of trial, the prosecutor addressed the court and asked if the defense intended to call any witnesses who had not been previously disclosed. The court commented that it had asked that question on the previous day and received a negative response. Counsel for Diana then told the court that he wished to call Michael Whelan. Although Whelan was not listed on the witness list, counsel believed his testimony was relevant to corroborate Mercedes Burch’s testimony about the legitimate business activity going on at the warehouse, since the prosecution was attacking Burch’s credibility. Counsel added that Whelan was listed on the police report and search warrant.
The court observed that it was late discovery and solicited the People’s comments. The prosecution requested a sanctions hearing because it was the second time she had not received notice of a witness being called. She stated that Whelan apparently had convictions for perjury and other felonies, which required preparation on her part. She believed the defense was behaving unethically and sandbagging the prosecution.
When the court asked counsel why he had not announced earlier that he was going to call Whelan, counsel replied that he had only spoken to Whelan the evening before—after Burch brought up Whelan’s activities with salvia extractions at the warehouse. Counsel stated that the prosecution attacked Burch’s credibility, and the defense wanted Burch to be believed because her testimony was favorable to them. The court asked for an offer of proof, and counsel stated Whelan would say he was there at the warehouse at the time Burch placed him there, and he was extracting salvia. Whelan would explain how he extracted it.
The court noted that the offer of proof sounded like the defense in the case, based on an earlier statement by counsel. The court asked counsel why he was only then announcing the witness if he knew he was going to rely on that defense. Counsel replied that he had not planned to call Whelan for other reasons. The court stated, “The sanction is I’m not letting you call the witness. That is a sanction. That’s the ultimate sanction. I certainly don’t do it lightly, but I feel the—what has been presented to me merits it. And so you are going to be denied . . . . [¶] . . . [¶] It seems to me that—the system requires a semblance of following the rules, if not the reality, and I don’t even think we’re at the semblance.”
2. Diana’s Argument
Diana contends her trial counsel was not required to inform the prosecution that he intended to call Whelan, since anyone listed in the police report and known to the prosecution was a potential witness who could be called to testify at trial by either side. Diana also argues that, even if trial counsel violated the rules of discovery, the court could have fashioned a sanction less harsh than excluding relevant and potentially exculpatory evidence. The court’s extreme sanction violated Diana’s rights to compulsory process, the right to confront witnesses, and the right to present a defense.
3. Relevant Authority
Statutory provisions for reciprocal discovery in criminal cases are contained in Penal Code sections 1054 through 1054.10. Penal Code section 1054.3 provides in pertinent part that the “defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons . . . .”
Penal Code section 1054.7 provides for the timing of the discovery obligation, in pertinent part as follows: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. . . .”
Penal Code section 1054.5 provides sanctions for the failure of the prosecution or defense to comply with the discovery requirements “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (Pen. Code, § 1054.5, subd. (b).) “The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted.” (Pen. Code, § 1054.5, subd. (c).)
“Under federal law, the factors to be considered in determining the appropriate remedy for discovery violations include: (1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of prosecutorial surprise or prejudice, and (4) whether the violation was willful. (Taylor v. Illinois [(1988) 484 U.S. 400,] 415, fn. 19 . . . .)” (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.) “[P]reclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial . . . .” (Id. at p. 1263.)
“Although alternative sanctions [to preclusion] are available, in some instances they would perpetuate ‘prejudice to the State and . . . harm to the adversary process.’ [Citation.] If an omission is willful in hope of obtaining a tactical advantage, the court may exclude the witness’s testimony. [Citation.] It is not unreasonable to suspect testimony from ‘a defense witness who is not identified until after the 11th hour has passed.’ [Citation.]” (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)
4. Witness Properly Excluded; Any Error Harmless
In the instant case, we conclude that defense counsel was in violation of the discovery statute, and the trial court did not abuse its discretion in precluding Whelan’s testimony. (People v. Jackson, supra, 15 Cal.App.4th at p. 1203 [decision as to which sanction to impose is within the court’s discretion]; People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) Although alternative sanctions were available, they would have increased the prejudice to the State. The prosecutor was clearly taken by surprise, and a lesser sanction would have been ineffective in this case. Moreover, the exclusion of the testimony did not prejudice appellant.
Whelan was a witness for whom extensive preparation was required. He had to be interviewed, his criminal record had to be investigated, and possible rebuttal witnesses to his testimony had to be located. Although the prosecutor had hurriedly obtained a printout of the criminal record of a Michael Whelan, whether the proposed witness was the same person had yet to be ascertained. The convictions shown on the printout had to be substantiated. Moreover, the prosecutor would have had to prepare for introduction of more extensive evidence on the herb salvia on which Whelan’s testimony was proffered.
A continuance to marshal the impeachment and rebuttal evidence required by the appearance of Whelan would have required a continuance of several days, to the inconvenience of the jury, Diana’s codefendant and his counsel, and the court. In an earlier discussion with Diana’s counsel about the necessity of making additional redactions in a tape before it was played to the jury, the court stated: “I’m also dealing with a potential juror that I’m going to lose Friday afternoon. I’m also dealing with the fact that I am now convinced this case is going to go into Monday when we told the jury Friday. So for the Court of Appeal[’]s benefit, not only I am thinking about your client, but I’m thinking about the jurors, and that’s the role and what I get paid to do as a trial judge is think about things other than just your client, which you’re paid to do, which you should be doing and you are doing effectively. But my job is to go beyond that.” This concern for the integrity of the jury undoubtedly affected the court’s ruling regarding Whelan as well.
Moreover, although on the surface defense counsel’s explanation for the delay appeared genuine, the court noted that Whelan’s testimony about extracting salvia was clearly being offered to bolster defense counsel’s stated defense that the various chemicals and instruments found in the warehouse were used for salvia extraction and other legitimate purposes. It is worth noting that the prosecutor represented she had not been aware that Mercedes Burch was to be called until cocounsel informed her. Since Diana’s counsel did not deny this, we can assume the Whelan discovery violation was the second one by Diana’s counsel. We also observe that defense counsel obtained preclusion of a prosecution witness earlier in the trial on the ground of late discovery, even though the prosecutor asserted that she had learned only that morning of the potential witness and his testimony. This evenhanded treatment precludes any claim of unfairness by the trial court. The trial court’s sanction was in accordance with the purpose of the discovery statutes, which is “to promote ascertainment of truth by liberal discovery rules which allow parties to obtain information in order to prepare their cases and reduce the chance of surprise at trial. [Citation.] Reciprocal discovery is intended to protect the public interest in a full and truthful disclosure of critical facts, to promote the People’s interest in preventing a last minute defense, and to reduce the risk of judgments based on incomplete testimony. [Citation.]” (People v. Jackson, supra, 15 Cal.App.4th at p. 1201.)
In any event, we believe any error in excluding the testimony of Whalen was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant’s defense theory was presented to the jury in argument, and the fact of salvia extraction was testified to by Mercedes Burch. Thus, the preclusion sanction did not prevent appellant from presenting a defense. Moreover, given the apparent criminal record of the proposed witness, with which he would have been impeached, it is doubtful his testimony would have been credible to the jury. And even if Whelan testified to the extraction of salvia activities, this would not negate the evidence of methamphetamine manufacture found at the warehouse. The preclusion of his testimony was clearly harmless beyond a reasonable doubt. For the same reasons, we conclude appellant was not denied her right to compulsory process, to confront witnesses, and to present a defense.
B. Failure to Refer Diana to CRC
1. Proceedings Below
The record shows that Diana’s counsel’s argument at sentencing consisted of the following: “Yes, Your Honor. I join in that [cocounsel’s argument that Donald’s prior conviction did not subject him to a sentencing enhancement], and also I believe on count 2, on a possession, that the 11370.2(A) does not apply. I believe it only applies to count 1 not count 2. The 667.5, since there [were] two cases but sentenced on the same day, I believe they merge as to one 667.5, not two of them. I’m asking the court for 6 years, recommend sending her to CRC, and she is an addict.” The trial court then heard argument from the prosecution and proceeded to sentence Diana to state prison. The court stated it had read and considered the probation report and believed probation was inappropriate.
2. Diana’s Argument
Diana contends the trial court abused its discretion by failing to refer her for evaluation to determine if she should be committed to the CRC, and the matter should be remanded for resentencing.
3. Relevant Authority
Welfare and Institutions Code section 3051 provides in pertinent part that after a defendant’s felony conviction, “if it appears to the judge that the defendant may be addicted or by reason of repeated use of narcotics may be in imminent danger of becoming addicted to narcotics the judge shall suspend the execution of the sentence and order the district attorney to file a petition for commitment of the defendant to the Director of Corrections for confinement in the narcotic detention, treatment, and rehabilitation facility unless, in the opinion of the judge, the defendant’s record and probation report indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.”
The statute establishes a two-step process for the trial court. The court must first determine whether it appears the defendant is addicted or in imminent danger of becoming addicted to narcotics. If so, the court must either suspend execution of sentence and order initiation of CRC commitment proceedings or find the defendant unfit for a commitment. (People v. Granado (1994) 22 Cal.App.4th 194, 200.) A pattern of criminality, often referred to as “excessive criminality,” is the only legitimate basis for refusing to initiate CRC proceedings. (Ibid.) In determining the existence of a pattern of criminality, the court may consider matters such as the defendant’s prior convictions, his prior performance on probation or parole, and the nature and seriousness of the current offense. (Id. at p. 202.) A statement of reasons is required only when a court decides not to order initiation of commitment proceedings. (People v. McLemore (1994) 27 Cal.App.4th 601, 607; People v. Granado, supra, at pp. 201-202.)
4. Failure to Request a Ruling
As Diana acknowledges, the court never made a finding that Diana was addicted to narcotics. Diana claims the court “ignored” her request for referral. Assuming counsel’s perfunctory mention of CRC qualifies as a request for a referral, we conclude Diana has forfeited this issue by failing to request a ruling below. As stated in People v. Braxton (2004) 34 Cal.4th 798, in the context of a court’s failure to rule on a new trial motion, if the trial court’s failure to rule appears to be inadvertent, the defendant must make “some appropriate effort to obtain the hearing or ruling.” (Id. at p. 813.) “‘“[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, [the party] may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.”’ [Citations.]” (Ibid.)
In this case the lack of response of any kind indicates the court did not hear counsel’s request at the end of his argument or did not recall the brief mention of CRC by the time the prosecutor had finished her argument. This belief is bolstered by the fact that the court did not give a statement of reasons. As stated previously, a statement or reasons is required when a court decides not to commence proceedings to commit a defendant to CRC. “The trial court is presumed to know and follow the law.” (People v. Castaneda (1975) 52 Cal.App.3d 334, 342.) Given the lack of any response whatsoever from the trial court, we conclude its failure to respond to counsel’s mention of CRC was inadvertent, and it was counsel’s duty to press for a ruling, which he failed to do.
5. Harmless Error
In any event, any error by the trial court in failing to respond was harmless in this case because appellant was not eligible for a CRC commitment. The trial court stated it had read and considered the probation report, in which Diana is said to have stated that she last used methamphetamine two days prior to her arrest and that she had been using methamphetamine for only a short period. She claimed no past treatment. None of the letters of support for Diana included in the probation report mentions that Diana is an addict. In fact, one letter claims the opposite—that she counseled the writer not to use drugs because of its ruinous effect on life. Therefore, there was no reason for the court to believe that appellant was an addict.
Furthermore, Welfare and Institutions Code section 3052 provides that Welfare and Institutions Code sections 3050 and 3051 do not apply, inter alia, to “persons whose conviction results in a sentence which, in the aggregate, exclusive of any credit that may be earned pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 of the Penal Code, exceeds six years’ imprisonment in state prison. . . .” (Welf. & Inst. Code, § 3052, subd. (a)(2).) Even if the court had imposed the midterm, Diana’s sentence would have exceeded six years.
Finally, Welfare and Institutions Code section 3051 provides that confinement in a rehabilitation facility can be denied if the judge is of the opinion that the defendant’s record and probation report “indicate such a pattern of criminality that he or she does not constitute a fit subject for commitment under this section.” Diana had already been to prison for the manufacture of methamphetamine. The probation report stated that Diana told the police informant that “she cooked 24 hours a day, seven days a week and was associated with a Vagos biker gang.” Trial testimony established that Diana had suborned the perjury of Mercedes Burch and had actually drafted the letter Burch wrote to the district attorney. On this basis, the court could have reasonably determined that Diana “had shown a disqualifying ‘pattern of criminality, irresponsibility and indifference to the requirements and sanctions of the penal law.’” (People v. Cruz (1990) 217 Cal.App.3d 413, 421.)
II. Donald’s Contentions
A. Sufficiency of the Evidence of Dominion and Control
1. Donald’s Argument
Donald contends the record fails to support the jury’s finding that he manufactured methamphetamine. He states that his fingerprint on the naphtha can was the only piece of physical evidence linking him to the manufacturing of the drug, and there was no evidence regarding the age of the print or where the can was located when he touched it. He points out that possession of naphtha is not illegal and has several uses in the legitimate businesses operated from the warehouse. He also argues that the prosecutor failed to establish that Donald had dominion and control of the contraband found in the warehouse. Donald’s name was not on the lease agreement, he never paid the rent, and no evidence of any of his personal items from the warehouse was presented. According to Donald, this lack of evidence applies equally to the charge of possession of methamphetamine.
2. Relevant Authority
“In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: ‘[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.’ [ Citations.] The United States Supreme Court has held: ‘[T]his inquiry does not require a court to “ask itself whether it believes the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the 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.’ [Citations.] . . . . The California Supreme Court has held, ‘Reversal on this ground is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” [Citations.]’” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.)
Given this court’s limited role on appeal, appellant bears an enormous burden in arguing insufficient evidence to sustain the verdict. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “‘“‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]’”’” (People v. Stanley (1995) 10 Cal.4th 764, 793.)
3. Evidence Sufficient
We disagree with Donald and conclude there was sufficient evidence of his dominion and control over the premises and the contraband. According to Health and Safety code section 11379.6, which defines the offense of manufacturing a controlled substance, the elements the jury had to find were that a person manufactured or converted directly or indirectly a controlled substance, namely methamphetamine; and that the person knew the substance manufactured had the character of a controlled substance. (Health & Saf. Code, § 11379.6, subd. (a); People v. Coria (1999) 21 Cal.4th 868, 871, 881; CALJIC No. 12.09.1.) The jury was also instructed that a person aids and abets the commission of a crime when he or she promotes, encourages or instigates the commission of the crime with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing or encouraging or facilitating the commission of the crime. (CALJIC No. 3.01.)
There was evidence from the landlord and Mercedes Burch that Donald lived in the warehouse with Diana. The landlord said he was renting the premises to both of them and they both appeared to reside at the location. He made this observation several times during the rental period. The circumstances that Donald’s name was not on the lease and that he did not personally pay the rent to the landlord are of no consequence. He slept with Diana on the mattress in one of the offices and there was no evidence that he resided anywhere else or worked anywhere else. He was seen by officers who were conducting surveillance months prior to the execution of the search warrant. At that time, the officers believed Donald was engaged in counter surveillance. Mercedes Burch testified that she lived with Diana and Donald. When asked if Diana offered her home to Mercedes, Mercedes replied, “Both of them did.” In her untruthful letter Burch wrote that she was “a roommate of the Coxes.” The jurors could reasonably draw the inference that Donald’s constant presence in the warehouse where all the chemicals and equipment were found meant that he knew the crime was being committed and intended to encourage the commission of the crime.
Furthermore, the landlord testified that there were odors at the warehouse, but he did not know what they were, and a neighboring construction company had complained about odors. The landlord also had a problem with trash from the Cox’s warehouse. These facts and Donald’s fingerprint on the naphtha can were further circumstantial evidence of his participation in the manufacturing process.
Donald relies on People v. Jenkins (1979) 91 Cal.App.3d 579 (Jenkins) for the proposition that more than mere presence must be shown in order to prove dominion and control, and that fingerprints alone do not suffice as evidence of possession, knowledge, or intent to manufacture. In Jenkins, the defendant’s convictions for manufacturing PCP and for possessing precursor chemicals with the intent to manufacture PCP were reversed for insufficient evidence. (Id. at p. 587.) Apart from the defendant’s false assertion that he had never touched anything in a garage PCP lab, the only incriminating evidence was his fingerprints “on three containers containing . . . substances [other than PCP], which were, however, constituents of a laboratory in which PCP was being manufactured.” (Id. at p. 584.) There was no evidence of where the containers were or what was in them when the defendant touched them, and no evidence that the contents of the containers had been used to manufacture PCP. (Id. at p. 583.) Moreover, there was an innocent explanation for the fingerprints because the drug lab was in defendant’s brother’s garage. (Id. at p. 582.) When “contraband is located at premises other than those of the defendant, dominion and control may not be inferred solely from the fact of defendant’s presence, even where the evidence shows knowledge of the presence of the drug and of its narcotic character.” (Id. at p. 584.) “[E]ven if the fingerprint evidence is interpreted . . . to place defendant in the garage at a time when the [illegal] substances . . . were also present in that room, it furnishes no evidence of (1) possession, actual or constructive, (2) knowledge, or (3) intent to manufacture PCP.” (Id. at p. 585.)
In a case following Jenkins, People v. Johnson (1984) 158 Cal.App.3d 850 (Johnson) held the evidence was insufficient to establish the defendant’s dominion and control over the premises where the contraband was found. The defendant was one of several persons detained in a house where bottles containing PCP were discovered in a hiding place above the ceiling. The defendant’s conviction for possession of PCP was overturned because the only evidence connecting him with the drugs was his fingerprint on one of the several bottles of PCP. (Id. at pp. 854-857.)
Both Johnson and Jenkins emphasized, however, that the results would have differed had the evidence been found in the defendant’s home or some other location from which his joint dominion and control could have been inferred. The Johnson court said, “the record is strikingly devoid of any solid evidence that defendant owned, rented or in any way occupied the premises” (Johnson, supra, 158 Cal.App.3d at p. 854), and referred to the statement in Jenkins that “[t]he inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control: his residence [citation], his automobile [citation], or his personal effects [citation].” (Jenkins, supra, 91 Cal.App.3d at p. 584, italics added.) Thus, both Johnson and Jenkins make clear that there would have been sufficient evidence that defendants possessed the drugs and related manufacturing items had those items been found in their homes, as occurred in Donald’s case.
We therefore conclude there was sufficient evidence to support the convictions. With respect to the manufacturing charge, the jury was not obligated to accept the defense position that “everything that was presented in this case was all there for legitimate purpose.” This is especially true when so many items and by-products related to the methamphetamine manufacturing process were found. Nor was the jury required to believe that one of the many visitors to the warehouse was culpable or that Donald had no knowledge of the manufacturing being conducted.
With respect to the possession charge, the jury was required to find that Donald exercised control over, or the right to control, the methamphetamine, that he knew of its presence, that he knew of its nature, and that the amount was a usable one. (CALJIC No. 12.00.) Even a slight link between a defendant and the controlled substance has been held to be sufficient to support a conviction for possession. For example, a conviction for possession was upheld where a defendant was in a vehicle and the controlled substance was in plain view and immediately accessible to the defendant. (People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on another point in People v. Daniels (1975) 14 Cal.3d 857, 862.) As stated in People v. White (1969) 71 Cal.2d. 80, 83, constructive possession of drugs can be reasonably inferred when they are found in a defendant’s bedroom, even if he shares the room with another. Here, the methamphetamine was contained in a purse located in the same room Donald and Diana shared as living and sleeping quarters, a place where Donald had equal dominion and control. A different purse contained Diana’s identification.
In addition, along with the ingredients for manufacturing methamphetamine which were located throughout the warehouse and connected to Donald, officers found methamphetamine in the freezer at the location.
We conclude there was sufficient evidence to support the elements of both convictions in Donald’s case.
B. Aiding and Abetting Instruction
1. Proceedings Below
In instructing the jury on the principles of aiding and abetting, the trial court read CALJIC No. 3.01 as follows: “A person aids and abets the commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator, and, two, with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and three, by act or advice, aids, promotes, encourages, or instigates the commission of the crime. A person who aids and abets the commission of a crime need not be present at the scene of the crime. Aiding and abetting, a general intent crime, does not require a specific intent.”
2. Donald’s Argument
Donald contends the trial court committed reversible error by omitting the last two paragraphs of CALJIC No. 3.01, which read as follows: “Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (CALJIC No. 3.01.) Citing Chapman v. California, supra, 386 U.S. 18, appellant argues that the court’s failure to instruct on mere presence and mere knowledge cannot be found harmless beyond a reasonable doubt, since it had the effect of lessening the prosecutor’s burden of proof.
3. Relevant Authority
The trial court must instruct the jury on general principles of law relevant to the issues raised by the evidence, even absent a request. (People v. Wilson (1967) 66 Cal.2d 749, 759.) The use note to CALJIC No. 3.01 states that the instruction “should be given sua sponte in every case in which any defendant is prosecuted as an aider and abettor.” A court must give the last two paragraphs of CALJIC No. 3.01 sua sponte when the evidence warrants it. (People v. Perry (1979) 100 Cal.App.3d 251, 260, 261.) However, “[i]t is not error to omit an instruction which is not based upon substantial evidence. [Citation.]” (People v. Northrop (1982) 132 Cal.App.3d 1027, 1040, disapproved on another ground in People v. Smith (1984) 35 Cal.3d 798, 807-808; People v. Boyd (1990) 222 Cal.App.3d 541, 557.) In People v. Flannel (1979) 25 Cal.3d 668, 684, the court established the current rule that to warrant a sua sponte jury instruction, evidence must be presented that is substantial enough to merit consideration. (Id. at pp. 684-685 & fn. 12.) “Speculation is not a basis for giving of instructions.” (People v. Day (1981) 117 Cal.App.3d 932, 936.)
4. Paragraphs Properly Omitted; Harmless Error
The omitted paragraphs were justifiably not read to the jury in this case, since there was no evidence to support a conclusion that Donald was a mere bystander. The laboratory items and the methamphetamine were found in Donald’s home and place of business—the place where he spent more time that in any other, it is safe to assume. (See People v. Torres (1990) 224 Cal.App.3d 763, 772 [jury properly instructed on appropriate mental states and defendant’s claim of unawareness of illegal activity not a reasonable interpretation of the evidence].)
Even if the court erred, the instructions given adequately informed the jurors of the elements required to find Donald guilty of the charges. Therefore, any question as to the degree of knowledge on Donald’s part that was required for a guilty verdict was resolved against Donald by other, properly given instructions. The California Supreme Court has stated that “the 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. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-756; People v. Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation]; see also People v. Torres, supra, 224 Cal.App.3d at p. 772 [even if the defendant merely negligently aided in the commission of the sale of heroin by handing a package to another, the failure to instruct on mere presence or mere knowledge was unnecessary because the jury was fully instructed concerning the appropriate mental states involved]; People v. Davis (1964) 231 Cal.App.2d 180, 187 [fact that the defendant was in the room while heroin was packaged but denied involvement insufficient to justify instruction on mere presence and the proposed instruction merely restated the standard instructions given].)
For example, CALJIC No. 12.00 defined actual and constructive possession of the controlled substance and told the jury that actual possession required direct physical control over a thing, and constructive possession required that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons. The instruction explained that a person may share actual or constructive possession. The jury was instructed in CALJIC No. 12.09.1 that Donald had to have manufactured or converted a controlled substance, but also had to know that the substance manufactured had the character of a controlled substance. As stated previously, CALJIC No. 3.01 told the jury, inter alia, that an aider and abettor had to act with knowledge of the unlawful purpose and with the intent to commit or encourage the crime. CALJIC No. 3.31.5 instructed that unless the required mental state existed in the mind of the perpetrator, the crime to which it related was not committed. CALJIC No. 2.02 explained that it could not find Donald guilty based on circumstantial evidence unless the circumstances were not only consistent with the theory that he had the required mental state but also that the circumstances could not be reconciled with another rational conclusion. The jury was also told that the finding that Donald had the required mental state had to be reasonable.
Donald cannot show that it is reasonably probable he would have obtained a more favorable result had the jury been given the last two paragraphs of CALJIC No. 3.01. (People v. Watson, supra, 46 Cal.2d at p. 836.) The jury was fully instructed concerning the elements of the charged offenses, and thus the trial court did not violate Donald’s right to a jury trial. Therefore, the Chapman standard for reversible error does not apply. (People v. Flood (1998) 18 Cal.4th 470, 491; People v. Avila (1995) 35 Cal.App.4th 642, 651-653.)
C. Failure to Instruct Sua Sponte Regarding Accomplice Testimony
1. Donald’s Argument
Donald contends that under the facts of this case, Mercedes Burch could have been found to have been an accomplice to one or more of the counts under Penal Code section 1111. Under these circumstances, the trial court had a sua sponte duty to instruct the jury on the applicable principles of accomplice testimony. Donald claims the court should have read CALJIC Nos. 3.10, 3.11, 3.12, 3.13, and 3.18.
2. Relevant Authority
Penal Code section 1111 states: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
It is well settled that a court must give certain instructions sua sponte whenever the testimony is sufficient for the jury to conclude that the witness implicating the defendant was an accomplice, or when the testimony establishes the witness was an accomplice of the defendant as a matter of law. (People v. Zapien (1993) 4 Cal.4th 929, 982 (Zapien); People v. Gordon (1973) 10 Cal.3d 460, 466, disapproved on another point in People v. Ward (2005) 36 Cal.4th 186, 212.) In the latter case, the court must instruct the jury that the defendant is an accomplice. (Zapien, supra, at p. 982.)
3. Accomplice Instructions Not Required; Harmless Error
The jury instructions regarding accomplice testimony are contained in CALJIC Nos. 3.10 through 3.20. In general, these instructions serve to caution the jury that the testimony of the accomplice witness is to be viewed with distrust and that the defendant cannot be convicted on the basis of the accomplice’s testimony unless it is corroborated by other evidence connecting the defendant to the crime. (Zapien, supra, 4 Cal.4th at p. 982; CALJIC Nos. 3.11, 3.18.) In the instant case, only a strained interpretation of the evidence would find accomplice instructions necessary because of Burch’s testimony, since she did not implicate Donald in any criminal conduct. Instead, she denied that any manufacturing occurred in the warehouse and maintained this position in both her interview and in her testimony. Also, there was no evidence Burch intended to assist or encourage the criminal activity.
In any event, a trial court’s failure to give the jury instructions regarding accomplices can be harmless if the general instructions on witness credibility provide a sufficient surrogate. (See People v. Lewis (2001) 26 Cal.4th 334, 371 [“To the extent defendant argues the jury should have been instructed to view [the accomplice’s] testimony with distrust (CALJIC No. 3.18), we find the other instructions given . . . were sufficient to inform the jury to view [the accomplice’s] testimony with care and caution, in line with CALJIC No. 3.18”].)
In this case, the jury was given general instructions for evaluating witness credibility. CALJIC No. 2.20 gave the jury criteria for determining the believability of a witness, including the existence or nonexistence of a bias, interest, or other motive. CALJIC No. 2.21.2 told the jury that a witness who was willfully false in one material part of her testimony should be distrusted in others. CALJIC No. 2.13 advised the jury that inconsistent statements on the part of a witness might be considered in determining the witness’s credibility as well as the truth of the factual statement previously made.
Moreover, a failure to give a required accomplice instruction is harmless if there is sufficient corroborating evidence in the record. The requisite corroborating evidence can be entirely circumstantial. (Zapien, supra, 4 Cal.4th at p. 982.) It need only connect the defendant with the commission of the crime in such a way as to reasonably satisfy the jury that the accomplice is telling the truth. (People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Here, there was sufficient corroborating evidence of the only significant portion of Burch’s testimony against Donald—that the warehouse was Donald’s residence as well as Diana’s.
We conclude that Donald suffered no prejudice by the failure of the trial court to give accomplice instructions since it is not reasonably probable a result more favorable to Donald would have occurred had they been given. (People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Purported Prosecutorial Misconduct
1. Donald’s Argument
According to Donald, the prosecutor committed misconduct in closing argument by arguing facts not in evidence, misstating facts to bolster her case, demeaning defense counsel, and inferentially vouching for her witness.
According to Donald, the argument of facts not in evidence and misstatement of facts consisted of (1) stating that Donald paid the rent for the warehouse; (2) that two vials were found on top of the desk in the front bedroom and were probably “his and her” smoking pipes; and (3) that Mercedes Burch was afraid of Diana after Burch reneged on her untruthful letter.
The casting of aspersions on the character and integrity of defense counsel consisted of the prosecutor implying that the defense did something wrong in that it “sprung” Mercedes Burch on the prosecution, and that the prosecutor called Burch to the stand because she was searching for the truth. The latter statement also accounts for the alleged improper vouching by the prosecutor.
Donald contends the prosecutor’s conduct was so egregious that it infected the trial with unfairness to the degree that his right to due process was violated, and his conviction must be reversed.
2. Relevant Authority
“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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The general rule requiring assignment of misconduct and a request for jury admonishment does not apply if a defendant’s objection or request for admonition would have been futile or would not have cured the harm. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) It also does not apply when the trial court promptly overrules an objection, resulting in the defendant having no opportunity to request an admonition. (Ibid.)
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, 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.)
3. No Prosecutorial Misconduct; Harmless Error
Assuming appellant has preserved this issue for appeal, we disagree with Donald’s characterization of the prosecutor’s argument. The only statement of which Donald complains that approaches a misstatement of fact occurred when the prosecutor said that Donald and Diana both paid the rent. The landlord testified that only Diana physically made the rent payments. Nevertheless, it is entirely likely the prosecutor was referring to the fact that money earned by both of the Coxes in their joint business ventures was used to pay the rent, which was a logical assumption since they were a married couple living together in the warehouse. The jury was properly admonished to disregard any statement on this issue and rely on its own recollection of the evidence. In any event, there was sufficient evidence that Donald lived in the warehouse, which was the strongest evidence of his dominion and control. The identity of the person who actually delivered the rent payments is of minimal significance. Any misstatement on this point did not involve the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. Nor was the remark so egregious as to infect the trial with unfairness to the degree that appellant suffered a denial of due process. (People v. Samayoa, supra, 15 Cal.4th at p. 841.)
With respect to the glass vials, the record shows that the prosecutor mentioned the vials in response to defense counsel’s argument emphasizing that the methamphetamine baggie was found in Diana’s purse, implying that Donald could not be found to have possessed it also. The prosecutor stated, “None of you live with Donald and Diana Cox. You don’t know their personal habits. You don’t know if that’s where they store their common meth. You do know that in the front bedroom desk top, west wall, there’s two glass vials there. Are they his and her vials for smoking? You can conclude that. That’s a reasonable inference to draw.” The prosecutor was clearly referring to the numerous photographs of the interior of the warehouse, including the bedroom area, that were included among the People’s exhibits. These were shown to the members of the jury, who were able to judge for themselves the accuracy of the prosecutor’s statement and draw their own inferences. The prosecutor’s suggestion was merely fair comment on the evidence. The prosecutor is given wide latitude to argue broadly the law and facts of a case and to draw inferences from the evidence. (People v. Lucas (1995) 12 Cal.4th 415, 473.) The prosecutor may comment on the actual state of the evidence (People v. Medina (1995) 11 Cal.4th 694, 755) and may “urge whatever conclusions he deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283; accord, People v. Thomas (1992) 2 Cal.4th 489, 527-528.)
The same concept applies to the prosecutor’s remark that Burch was afraid of Diana. Burch stated that she did not want to face Diana and clearly wished to avoid seeing her upon leaving the interview with Detective Kaiser, even though she had driven to the interview with Diana that day. The prosecutor did not imply that Burch feared for her life or feared she would be physically hurt. In any event, the interview transcript and tape clearly showed the jury that Burch did not fear physical harm from Diana, and certainly not from Donald.
With respect to casting aspersions on defense counsel, the prosecutor’s remark that the defense had “sprung” Burch on the prosecution was in response to defense counsel’s remarks. Diana’s counsel commented on Burch’s contradictory statements about who put the beaker in the refrigerator and stated, “Remember when she testified, who called her to the stand? The prosecution called her to the stand. She was a prosecution witness. The tape-recording of her and Ms. Green and Mr. Kaiser was brought into evidence by who?” In response, the prosecutor stated that “Neither side owns people. Neither side owns witnesses. We don’t own Mercedes Burch. We never heard of Mercedes Burch until she was sprung on us September 29th, 2003.” This last comment did not refer specifically to defense counsel, and we do not believe the jury interpreted the remark as an accusation of a lack of fair play by counsel. Burch indicated she wrote the letter on her own at the instigation of Diana and Diana’s daughter.
The prosecutor then explained why Burch was a prosecution witness, stating, “You bet I called her. You know why? Because the defense didn’t have to call her. And after Kaiser turned her around, what do you think they were going to do? Do you think they were going to call her? I don’t think so. A trial is a search for the truth from the People’s standpoint. It’s a search for justice. And you bet I wanted you to hear from Mercedes Burch.”
We do not believe the latter remarks constituted improper vouching. Such vouching may occur “where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony. [Citations.]” (People v. Fierro (1991) 1 Cal.4th 173, 211.) “However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ [his or] her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 971; see also People v. Fauber (1992) 2 Cal.4th 792, 822; People v. Medina, supra, 11 Cal.4th at p. 757.) Moreover, a prosecutor may argue matters of common knowledge or illustrations drawn from common experience. (People v. Williams (1997) 16 Cal.4th 153, 221.)
Here, the prosecutor was merely pointing out the logical reasons behind its calling Burch to the stand. There was no implication by the prosecutor that she had any personal knowledge of any facts outside the evidence presented. The prosecutor could hardly vouch for Burch’s veracity, since she had exposed Burch’s untruthfulness.
Even if a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. (People v. Arias (1996) 13 Cal.4th 92, 161.) Here, the jury was well aware that defense counsel had objected to the remarks. The jury was properly instructed, and among the instructions were those informing it that statements of attorneys were not evidence, and that it must decide the facts based upon the evidence adduced at trial, and from no other source. (CALJIC Nos. 1.00, 1.02.) In this case, the evidence of appellant’s guilt was substantial, and it is not reasonably probable he would have obtained a result more favorable in the absence of the prosecutor’s remarks. (Ibid.) We conclude that no prejudice resulted from the prosecutor’s comments, and appellant’s argument is without merit.
E. Cumulative Error
We also find no merit in Donald’s cumulative error argument. Our review of the record assures us that Donald received due process and a fair trial. (People v. Ashmus (1991) 54 Cal.3d 932, 1006.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.)
III. Imposition of Upper Terms for Both Appellants
A. Proceedings Below
In sentencing Diana to the upper term, the trial court stated: “In examining the aggravating factors versus the mitigating, it appears there is no mitigation. There is aggravation. The aggravation includes the prior criminal history, and the fact that factually, I make a finding that the defendant clearly attempted to get a witness to lie on her behalf. That’s about as bad as it gets, as far as I’m concerned. So defendant is sentenced to the high term of 7 years based on that.”
In sentencing Donald to the upper term, the court stated: “In examining the various factors here, the aggravation versus the mitigation in this case, the record reflects the defendant’s—unless I’m reading it wrong—has been convicted seven times for various charges in the past. So clearly the high term is warranted. The aggravation outweighs the mitigation.”
B. Appellants’ Arguments
In their original briefs, citing Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Donald and Diana argued that the sentence imposed must be reversed because the factors employed by the trial court were neither admitted by them nor found true by a jury. Reliance on those factors therefore deprived them of the right to a jury trial under the Sixth Amendment. Respondent argued that, under Almendarez-Torres v. United States (1998) 523 U.S. 224, 226 (Almendarez-Torres), a defendant does not have a right to a jury trial when his or her sentence is increased due to the fact of a prior conviction.
After the decision in Cunningham, in which the high court made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum” and the subsequent decisions of the California Supreme Court in Black and Sandoval, appellants supplemented their arguments.
Donald asserts that Black was wrongly decided and the recidivist exception of Almendarez-Torres is no longer valid. He argues that Black’s holding regarding the scope of the recidivist exception was too broad. The exception should not extend to the fact that his prior convictions were numerous, as the trial court found. Donald further maintains that the error was not harmless. While asserting that under Sandoval the error was not harmless, he argues that the test set out in Sandoval for assessing harmless error is incorrect.
In addition to joining Donald’s arguments, Diana also contends that Black was wrongly decided and that Almendarez-Torres is no longer controlling. To the extent Almendarez-Torres is still valid, she contends, it must be narrowly applied to include only the mere fact of a prior conviction. Diana also asserts that Black’s holding that the existence of a single aggravating factor brings a defendant within the Almendarez-Torres exception contradicts the holdings in Apprendi, Blakely and Cunningham. It thus violates her rights to a jury trial under the Sixth Amendment and her right to notice under the due process clause of the Fourteenth Amendment. Diane also asserts that the error is not harmless, and any harmless—error finding based on the single factor rule is unconstitutional and flawed.
C. Relevant Authority
In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The Supreme Court subsequently held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) The high court recently made it clear that, “[i]n accord with Blakely, . . . the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) The court therefore concluded that the California determinate sentencing law was unconstitutional to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 871].)
In interpreting Cunningham in Black, the California Supreme Court determined that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, 41 Cal.4th at p. 812.) Black and its companion case, Sandoval, reiterated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) Black emphasized that the “‘prior conviction’ exception” must not be read too narrowly; it includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black, supra, at p. 819.)
D. Upper Terms Properly Imposed
With respect to Donald, the trial court clearly imposed the upper term based on the fact that his prior convictions were numerous. This factor corresponds to California Rules of Court, rule 4.421(b)(2), which names as an aggravating circumstance, “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness[.]” Black specifically addressed this aggravating factor and stated, “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ . . . require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, 41 Cal.4th at pp. 819-820; see also People v Yim (2007) 152 Cal.App.4th 366, 370-371.)
The record shows that Donald admitted having suffered a 1997 conviction for a violation of Health and Safety Code section 11378, possession of a controlled substance for sale, as was alleged in the information. The probation report revealed that, prior to the 1997 felony conviction, Donald suffered two separate convictions for spousal abuse in 1990. (Pen. Code, § 273.5, subd. (a).) Also, in January 1991, July 1991, and March 1992, Donald was convicted of driving under the influence. (Veh. Code, § 23152, subd. (a).) After the 1997 felony conviction, in February 2001, he was convicted of two counts of spousal abuse and one count of removal or injury to a telephone, telegraph, or cable television line (Pen. Code, § 591).
Thus, the trial court correctly determined that Donald’s prior convictions were numerous. Once the trial court made its determination, Donald was eligible for the upper term, which became the statutory maximum. (Black, supra, 41 Cal.4th at p. 816.)
With respect to Diana, she admitted at sentencing that she had suffered two February 1997 convictions for violating Health and Safety Code section 11378. Therefore, in her case, the trial court’s reason for imposing the upper term falls precisely within the exception delineated in Apprendi. The trial court’s stating that the upper term was based on her criminal history clearly referred to these admitted prior convictions. Diana was therefore eligible for the upper term, and the trial court properly imposed it. (Black, supra, 41 Cal.4th at p. 818; Sandoval, supra, 41 Cal.4th at pp. 836-837.) The trial court’s finding of additional facts in support of its discretionary choice of the upper term did not violate appellant’s right to trial by jury. (Black, supra,at p. 812.)
Appellants challenge the Black decision in several regards. We, of course, are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because we conclude that appellants were properly sentenced to the upper term, we do not address appellants’ arguments that the trial court’s error was not harmless beyond a reasonable doubt.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.