Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2006024589, of Ventura Charles McGrath, Judge
Susan B. Gans-Smith for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Jerry Diaz appeals a judgment following his conviction for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), possession of an injection/ingestion device (Health & Saf. Code, § 11364) and resisting and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). We conclude substantial evidence supports the judgment and Diaz has failed to show prosecutorial misconduct. We affirm.
FACTS
Police Officer Allen Macias saw Diaz driving near a bus stop. Macias made a U-turn because he knew there was a warrant for Diaz's arrest. Macias got out of his car and approached Diaz, who fled on foot. As Macias chased him, he saw Diaz retrieve an object from his shorts' pocket and throw it to the ground. Macias apprehended Diaz and told Sergeant Carlos Juarez to search the area where Diaz had thrown the object.
Macias pointed to the place where he saw the item, and Juarez retrieved a hypodermic syringe. Juarez testified there were no other objects in the area where he found the syringe and that from his experience the liquid in the syringe appeared to be tar heroin. Macias also testified it was heroin.
Vern Traxler, a sheriff's forensic scientist, testified the syringe was "a little over half full" of a brown liquid which contained heroin. On cross-examination, he said he received a request to give the defense "a split of the sample" on October 2. But he did not send the sample to another "lab" for analysis until November 7.
In the defense case, Diana Collins, a defense investigator, testified that she requested "a split of the alleged drug sample" from the sheriff's crime lab on October 2. On November 8, Traxler told her "that he had just prepared the sample" that morning.
Arguments to the Jury
The prosecutor told the jurors: "I want to address just very briefly the defense case. There was some issue made of a lab split and . . . I was personally insulted to somehow be[ing] implicated in some kind of conspiracy against Mr. Diaz somehow something is being hidden." Defense counsel objected and said: "[M]isstates the evidence." The court overruled the objection and instructed the prosecutor to proceed. The prosecutor stated: "It's what's called a red herring, because what happens is when you have a case that's obvious, you know, you've got to throw something out there." Defense counsel said: "Objection; improper argument." The court overruled that objection. The prosecutor said: "And the reality is if the substance was not heroin, you would know it. But remember, you have two officers who told you that when they saw that syringe, it was heroin. You had Mr. Traxler come up here and tell you he analyzed it, it was heroin. [¶] . . . [¶] . . . I think Mr. Diaz is guilty of all crimes. I think the facts clearly show that at least beyond a reasonable doubt and I think when you guys go back there and you deliberate and look at all the evidence, I think you will come to the conclusion that Mr. Diaz is guilty[.]"
In the defense argument, Diaz's counsel claimed the prosecution prevented the defense from analyzing the drug sample to determine if there was a useable amount of heroin. He said: "[T]he D.A.'s lab did not check for that and we weren't allowed to check for it. Because the D.A.'s lab sat on our request until the day before trial." The prosecutor "object[ed] to that." The court stated: "The D.A's lab, sustained. It's not the D.A.'s lab." Defense counsel said: "Traxler sat on our request [for a split sample] until the day before trial. He had it for over five weeks."
The prosecutor stated in his closing argument: "[O]ne thing I wanted to say about the drug split. Do you really think that if that substance in the syringe wasn't heroin that we would be here? . . . [W]hen you look at the case in the end with everything, with the facts, with the law, with your common sense, I think it shows Mr. Diaz is guilty[.]"
DISCUSSION
I. Substantial Evidence
Diaz contends the evidence is insufficient to support his conviction for possession of heroin and possession of an injection/ingestion device. We disagree.
In reviewing the sufficiency of the evidence we draw all reasonable inferences in support of the judgment and do not weigh the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11-12) "'The essential elements of possession of a controlled substance are "dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character." [Citation.]'" (People v. Morales (2001) 25 Cal.4th 34, 41.)
Diaz contends there is no evidence that he had dominion and control of the syringe. He claims the police did not see him throw the syringe which the police retrieved.
But we consider the evidence most favorable to the judgment. The prosecution does not have to prove the police saw Diaz holding the contraband to obtain a conviction. (People v. Berti (1960) 178 Cal.App.2d 872, 875.) Dominion and control may be established by circumstantial evidence. (People v. Morales, supra, 25 Cal.4th at p. 41.) "[P]ossession may be imputed when the contraband is . . . immediately and exclusively accessible to the accused . . . . [Citation.]" (People v. Williams (1971) 5 Cal.3d 211, 215.) Defendants who possess drugs often try to dispose of them before an arrest. (People v. Palaschak (1995) 9 Cal.4th 1236, 1241.) "[T]he narcotics possession statutes do not require proof of possession at the very time of arrest." (Id. at p. 1242.) It is sufficient that the substance was in his possession immediately before he was arrested. (Id. at p. 1241.)
In People v. Groom (1964) 60 Cal.2d 694, the police made a U-turn, approached the defendant, and saw him throw an object away. They searched and recovered a marijuana cigarette a short distance from where he stood. It was on a sidewalk in an area which contained no other debris. (Id. at p. 697.) Our Supreme Court said that "[f]rom this it could be inferred that defendant at one time exercised physical dominion over that cigarette." (Ibid.)
Here the facts are analogous to Groom. Officer Macias saw Diaz, he made a U-turn and approached Diaz, who fled. Macias saw Diaz take an object from his pants and throw it on the ground. Macias pointed to the syringe and Sergeant Juarez retrieved it. Juarez testified there were no other objects in that area and the street was "pretty clean." Jurors could reasonably infer that Diaz had dominion and control of the syringe. (People v. Groom, supra, 60 Cal.2d at p. 697.)
They could also find that by throwing the syringe, Diaz showed his consciousness of guilt. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1297; People v. Tolliver (1960) 179 Cal.App.2d 736, 740 [attempt to dispose of contraband established defendant's knowledge of its illegal nature].) The evidence is sufficient. (People v. Morales, supra, 25 Cal.4th at p. 41; People v. Groom, supra, 60 Cal.2d at pp. 696-697.)
II. Prosecutorial Misconduct
Diaz contends the prosecutor's arguments to the jury constituted misconduct. But to preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Diaz claims several remarks constituted misconduct, however, at trial he only objected to one on the grounds of improper prosecution argument. But even on the merits the result is the same.
"Prosecutors 'are allowed a wide range of descriptive comment . . . on the evidence.' [Citation.]" (People v. Farnam, supra, 28 Cal.4th at p. 168.) Misconduct is shown where their remarks were so unfair they denied the defendant a fair trial or where the prosecutor used deceptive or reprehensible methods to persuade the jury. (Id. at pp. 167-168.)
Diaz claims the prosecutor improperly gave jurors his opinion on guilt by stating that he thought Diaz is guilty of all the crimes. "Although a prosecutor may state his opinion formed from deductions made from evidence . . ., he or she may not express a personal opinion as to guilt if there is substantial danger that a juror will interpret it as being based on information not in evidence." (People v. Heishman (1988) 45 Cal.3d 147, 195.)
Here there was no such danger. Immediately after making the statement the prosecutor said, "I think the facts clearly show that at least beyond a reasonable doubt and I think when you guys go back there and you deliberate and you look at all the evidence, I think you will come to the conclusion that Mr. Diaz is guilty[.]"
Diaz claims the prosecutor improperly vouched for his case by asking jurors to rely on the prestige of his office instead of the evidence by saying: "And one thing I wanted to say about the drug split. Do you really think that if that substance in the syringe wasn't heroin that we would be here?"
But Diaz takes this phrase out of context. The prosecutor made these remarks to support the prosecution's scientific findings and he referred jurors to the evidence. He said: "[W]hen you look at the case in the end with everything, with the facts, with the law, with your common sense, I think it shows Mr. Diaz is guilty[.]" Diaz notes the prosecutor also said: "There was some issue made of a lab split and I'm going to tell you, I was personally insulted to somehow be implicated in some kind of conspiracy against Mr. Diaz somehow something is being hidden."
But Diaz omits the preceding sentence which was: "I want to address just very briefly the defense case." The defense theory was that the prosecution delayed delivering scientific evidence to the defense to impede discovery of exculpatory material. The prosecutor responded by referring jurors to the evidence. He said: "[Y]ou have two officers who told you when they saw the syringe, it was heroin. You had Mr. Traxler come up here and tell you he analyzed it, it was heroin." No reasonable juror would interpret the prosecutor's remarks as an invitation to ignore the evidence.
Diaz contends the prosecutor improperly disparaged defense counsel by calling his hiding the evidence theory, "a red herring" and stating, "when you have a case that's obvious . . . you've got to throw something out there." But a prosecutor may tell jurors the evidence shows a defense is fabricated and may use "colorful terms" to make the point. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) Here he was responding to a defense accusation about prosecutorial conduct and trying to argue that no evidence supported the claim.
The remark, "you've got to throw something out there," was unnecessary. But it did not meet the threshold of being inflammatory, deceptive or reprehensible. (People v. Farnam, supra, 28 Cal.4th at pp. 167-168.) Reasonable jurors would view the statement as an attack on defense counsel's theory, but not his character. Moreover, the court instructed jurors that "[n]othing that the attorneys say is evidence." There was no prejudicial misconduct. (People v. Pinholster, supra, 1 Cal.4th at p. 950.)
The judgment is affirmed.
We concur: YEGAN, J. PERREN, J.