People v. Garabato

Full title: THE PEOPLE, Plaintiff and Respondent, v. MICHELE GARABATO et al.…

Court: California Court of Appeals, Sixth District

Date published: May 17, 2011

No. H034565 (Cal. Ct. App. May. 17, 2011)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. MICHELE GARABATO et al., Defendants and Appellants. H034565 California Court of Appeal, Sixth District May 17, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC933891

Mihara, Acting P. J.

Defendants Michele Garabato and Jose Israel Perez appeal from judgments of conviction entered after a jury found them guilty of possession of methamphetamine for sale (Health & Saf. Code, § 11378). The jury also found Garabato guilty of being under the influence of a controlled substance (Health & Saf. Code, § 11550), and it found Perez guilty of presenting a false identity to a peace officer (Pen. Code, § 148.9) and obstructing a peace officer (Pen. Code, § 148, subd. (a)). Following trial, Garabato admitted the allegations that he had a prior conviction for possession of methamphetamine for sale (Pen. Code, § 1203.07, subd. (a)(11)), he was ineligible for probation (Health & Saf. Code, § 11370.2, subd. (c)), and he had served two prior prison terms (Pen. Code § 667.5, subd. (b)). In a bifurcated proceeding, the trial court found true the allegations that Perez had a prior serious felony conviction and that he had served a prior prison term (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.5, subd. (b)). The trial court sentenced both defendants to five years in state prison.

On appeal, defendants contend: (1) the trial court erred by failing to hold an in camera hearing on the identity of the confidential informant; (2) the trial court abused its discretion by excluding evidence of third party guilt; (3) the trial court erred by excluding evidence of a third party’s declaration against penal interest; and (4) they were deprived of the effective assistance of counsel. Perez also contends that the prosecutor committed Griffin error.¹ For the reasons stated below, we affirm.²

1 Griffin v. California (1965) 380 U.S. 609 (Griffin).

2 Garabato has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas corpus petition by separate order.

I. Statement of Facts

At 10:45 p.m. on February 7, 2009, Officer Stephen Fries and six other officers went to 435 1/2 Vaughn Avenue in San Jose to perform a lawful search.³ They noticed a surveillance camera, which was pointed towards the driveway, on the roof of the residence. As he approached the door, Officer Fries heard two or three voices and observed that the lights were on inside the residence. Officer Fries immediately knocked on the door, identified himself, and announced that the police were there to conduct a search. He then heard footsteps and people running up the stairs. About 30 seconds after announcing their presence, the officers used a ram to open the door because they believed that the residents were arming themselves or destroying evidence.

3 Officer Fries testified at the preliminary examination that he conducted a parole search. The parties stipulated at trial that the police lawfully entered the residence.

When he entered the residence, Officer Fries saw “people running up the stairs, ” one of whom was later identified as Perez. The officer told him to stop, but he continued up the stairs. By the time Officer Fries reached the top of the stairs, Perez had entered the bathroom and shut the door. Officer Fries then heard the toilet flush. He opened the door and saw Perez standing by the toilet with a plastic bag in his hands. The water was swirling inside the toilet, but there was no substance in the water. There was also no residue in the plastic bag.

Officer Fries searched Perez and found a cell phone and $696 in a money clip. The cell phone was constantly ringing while he talked with Perez. The officer searched the cell phone and located text messages. The first message stated: “Mike W-S-S-J, February 7th, 7:50 p.m. I’m at my pad. I’ll be here. eR@$e mE.” The response was “K.” The second message stated: “Mike W-S-S-J, February 7th, 7:48 p.m. R U coming trew? eR@$e mE.” The response was “YES.” The third text message stated: “Junior, February 6, 9:05 p.m. Program Time.” The response was “YES.” The fourth text message stated: “Mike W-S-S-J, February 5th, 2:33 P.M. Call me. eR@$e mE.” The response was “What’s up? I’m here at Shirteec.”

Officer Emilio Perez testified that he followed Officer Fries up the stairs, entered a bedroom where the television was on, and found Garabato and Shannon Holdengraber lying in bed. Holdengraber appeared groggy and sleepy while Garabato seemed surprised and excited. There was no methamphetamine in the bedroom.

On a coffee table in the family room, the officers found two plastic bags containing 13.6 and 13.5 grams of methamphetamine, a digital scale with white residue, a measuring cup with some methamphetamine residue, a Comet bottle with a false bottom containing plastic baggies, $353 in cash and Garabato’s driver’s license in a money clip, several baggies containing white crystals, a glass pipe with white crystals, marijuana, a marijuana pipe, and a cell phone.⁴ Another methamphetamine pipe was located in the kitchen.

4 Officer Fries testified that he found a “pay-owe” sheet, but he did not take it into evidence. He asked Officer Michael Drago to photograph the document, but the photograph of this document, which included names and telephone numbers, was not the pay-owe sheet that he had found. Officer Drago testified that he photographed the document that Officer Fries had identified as a pay-owe sheet.

After the officers had secured the residence, they found a hatch door, which led to the basement, under a carpet in the kitchen. The hatch door was very heavy, and as Officer Fries lifted it up, he needed “some sort of propping device to keep the hatch open.” It was “pitch black” in the basement. After announcing that they were conducting a search, Officers Fries and Flores went down the stairs and found Troy Barros, who showed signs of being under the influence of methamphetamine.⁵ It appeared that someone was living in the basement because there was a bed, male clothing, and a methamphetamine pipe.

5 Officer Fries testified that, prior to entering the residence, he did not hear the hatch door close and he did not hear what appeared to be someone running downstairs. He also did not see the hatch door close when he entered the residence.

The officers found indicia for both Holdengraber and Garabato in the kitchen. They did not find anything indicating that Perez lived at the residence. The parties stipulated that Garabato and Barros tested positive for methamphetamine, and Holdengraber and Perez tested negative for methamphetamine.

Officer Mike Bui testified as an expert in possession for sale of methamphetamine. In his opinion, the quantity of methamphetamine, the large amount of cash, the cell phone, the cup and scales with methamphetamine residue, the Comet bottle with a false bottom, the text messages, and the surveillance camera indicated that the methamphetamine was possessed for sale. That there were methamphetamine pipes in the residence did not change his opinion because dealers also use drugs. According to Officer Bui, the current street value of one gram of methamphetamine was $100.

Perez identified himself to the police as Miguel Perez with a date of birth of November 8, 1981. The officer later learned that Perez did not provide his correct name and date of birth.

The defense attempted to demonstrate that the police investigation was biased and inadequate to prove which individual possessed the methamphetamine and for what purpose. Debra Garabato, Garabato’s mother, testified that she had visited the Vaughn Avenue residence four times between the first part of the year and Garabato’s arrest. She observed that Barros was sleeping on the couch in the family room. Emar Garabato, Garabato’s father, testified that he lived in the Vaughn Avenue residence in November and December 2008, and both he and Barros slept in the family room.

II. Discussion

A. Motion to Discover the Identity of the Confidential Informant

Defendants contend that the trial court’s denial of their motions to discover the identity of the confidential informant without an in camera hearing violated their constitutional rights to due process and a fair trial.

During the preliminary examination, Officer Fries testified that he was given information “[s]everal days” before the search that there was “drug trafficking taking place” at Garabato’s residence. It was his understanding that Perez would not be present and that Holdengraber was not involved in the drug trafficking. After counsel for Holdengraber asked Officer Fries to identify the source of that information, he relied on the privilege set forth in Evidence Code section 1041 and declined to answer.

When counsel for Holdengraber sought an order compelling the disclosure of the informant’s identity, the magistrate conducted an in camera hearing and determined that the “informant is material.” A discussion followed about the procedural steps that must accompany a motion to discover the identity of a confidential informant. The magistrate called a recess to review the applicable law. After the recess, the prosecutor stated that he had spoken with Officer Fries during the break, and he requested that the court conduct a second in camera hearing at which the prosecutor would be present.

Following the second in camera hearing, which was conducted without input from defense counsel, the magistrate ruled that “with respect to the male defendants there is absolutely no possibility that the informant could produce any exculpatory information for them.” The prosecutor then moved to dismiss all charges against Holdengraber, and the motion was granted.

About a month before trial, Perez brought a motion to compel disclosure of the informant’s identity. On the date of the hearing, Garabato joined in the motion. Perez did not file a declaration, but he alleged in his motion: “At the preliminary examination, Officer Fries testified that he knew the residence to be that of Mr. Garabato and Ms. Holdengraber. He further testified that Mr. Perez was not living at the house and that he was unaware that Mr. Perez was going to be present at the house at the time the search was conducted. It is believed that the informant would have crucial and exculpatory information as to Mr. Perez.” Garabato offered no factual scenario to support his request to disclose the identity of the informant.

The trial court reviewed the preliminary hearing transcript, but did not review the sealed transcripts of the in camera hearings. The trial court questioned whether defendants had made a prima facie showing of materiality. Counsel for Perez argued that his client did not live at the residence and Officer Fries did not expect Perez to be present during the search, and “[t]herefore, it would seem to me that the information that was relayed by the confidential informant could be exculpatory as to Mr. Perez.” Counsel for Garabato merely submitted the matter. The trial court denied the motion on the ground that defendants failed to make a prima facie case that would entitle them to an in camera hearing.

Evidence Code section 1042, subdivision (d) describes the procedures to be followed and the standards to be applied when a defendant seeks disclosure of a confidential informant’s identity. It provides in relevant part that “[w]hen, in any such criminal proceeding, a party demands disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt, the court shall conduct a hearing at which all parties may present evidence on the issue of disclosure.... During the hearing, ... the prosecuting attorney may request that the court hold an in camera hearing. If such request is made, the court shall hold such a hearing outside the presence of the defendant and his counsel.... The court shall not order disclosure, nor strike the testimony of the witness who invokes the privilege, nor dismiss the criminal proceeding, if the party offering the witness refuses to disclose the identity of the informant, unless, based upon the evidence presented at the hearing held in the presence of the defendant and his counsel and the evidence presented at the in camera hearing, the court concludes that there is a reasonable possibility that nondisclosure might deprive the defendant of a fair trial.”

A defendant must “make a prima facie showing for disclosure [of an informant’s identity] before an in camera hearing is appropriate.” (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152.) “ ‘This burden is met only where the defendant demonstrates through “some evidence” [citation] that there exists a “ ‘reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.’ ” ’ [Citations.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1246 (Gordon), overruled on another ground in People v. Edwards (1991) 54 Cal.3d 787, 835.)

People v. Hardeman (1982) 137 Cal.App.3d 823 (Hardeman) discussed at some length the “reasonable possibility” test. “The standard of ‘reasonable possibility’ has ‘vague and almost limitless perimeters which must be determined on a case-by-case basis.’ [Citations.] The courts have indicated that the measure of the ‘reasonable possibility’ standard to be utilized in individual cases is predicated upon the relative proximity of the informant to the offense charged. ‘[T]he evidentiary showing required by those decisions is... as to the quality of the vantage point from which the informer viewed either the commission or the immediate antecedents of the alleged crime.’ [Citation.] The existence of a reasonable possibility that testimony given by an unnamed informant could be relevant to the issue of defendant’s guilt becomes less probable as ‘the degree of attenuation which marked the informer’s nexus with the crime’ [citation] decreases. If the informer is not a percipient witness to the events which are the basis of the arrest, it is highly unlikely that he can provide information relevant to the guilt or innocence of a charge or information which rises from the arrest. Thus, ‘when the informer is shown to have been neither a participant in nor a non-participant eyewitness to the charged offense, the possibility that he could give evidence which might exonerate the defendant is even more speculative and, hence, may become an unreasonable possibility.’ [Citation.] Further, where the defendant is charged with constructive possession of narcotics which is imputed by police discovery of contraband in a certain location, the disclosure of a nonparticipating, noneyewitness informant is required only if such an informant has experience a ‘very recent observation of contraband on those same premises... [and] if the evidence shows that persons other than the defendant were on the premises when the informer observed the contraband and that the defendant was not then present or may have been not present.’ [Citation.]” (Id. at pp., 828-829; italics in original.)

The standard of review applicable to a trial court’s ruling concerning the disclosure of the identity of a confidential informant is unsettled. (Gordon, supra, 50 Cal.3d at pp. 1245-1246.) Courts of Appeal have applied both the de novo and abuse of discretion standards. (Ibid.)

In the present case, defendants’ contention fails under either standard. Here, the record establishes that the informant was neither a participant in nor an eyewitness to the charged offenses on February 7, 2009. The informant told Officer Fries “several days” before the search that there was “drug trafficking taking place” at Garabato’s residence. The record does not indicate when the drug trafficking occurred. Thus, the possibility that the confidential informant could provide evidence that might exonerate either defendant was remote.

Perez’s argument that the confidential informant would provide exculpatory evidence because Officer Fries understood that Perez would not be present at the residence is not persuasive. The prosecution’s case against Perez was not dependent upon his connection to the Garabato residence, but rather on Perez’s behavior when the officers arrived. As the officers entered the residence, Perez ran upstairs to the bathroom and shut the door. Officer Fries then observed Perez standing in front of the toilet, which had just been flushed, with an empty plastic bag in his hands. The text messages on his cell phone also suggested that he sold drugs. Thus, even if the informant had identified someone other than Perez as involved in the drug trafficking at the residence, this information was not relevant to the issue of Perez’s guilt. Accordingly, the trial court did not err in finding that Perez failed to make a prima facie showing to justify conducting an in camera hearing to disclose the identity of the informant.

We next consider Garabato’s motion to discover the informant’s identity. In bringing this motion, Garabato did not offer “ ‘some evidence’ ” that the confidential informant could have provided evidence that would have exonerated him. (Gordon, supra, 50 Cal.3d at p. 1246.) Garabato acknowledges that his counsel could have been clearer as to how the informant’s observations might have exonerated him. He now asserts, however, that his goal was to discover whether the informant had information that somebody else owned the drugs or other items found on the coffee table. Given the record in this case, Garabato has failed to make a prima facie case. Garabato was charged with possession for sale of methamphetamine based on evidence that he ran upstairs when the police arrived and his driver’s license was found in a money clip next to the methamphetamine and drug paraphernalia on the coffee table in his family room. The informant was neither a witness to nor a participant in this offense. Information that other individuals may have engaged in drug trafficking at the residence at some other time or that others jointly possessed the methamphetamine would not have exonerated Garabato. Thus, the trial court did not err in failing to hold an in camera hearing on the issue.

Defendants’ reliance on People v. Lee (1985) 164 Cal.App.3d 830 (Lee) is misplaced. In Lee, the application for the search warrant stated that the informant told the officer that “ ‘Ann’ ” had sold PCP within the last 72 hours and that he had observed her sell PCP at least 15 times in the last 18 months. (Lee, at p. 837.) In contrast to Lee, here, the informant’s observation of drug sales was not “ ‘very recent.’ ” (Hardeman, supra, 137 Cal.App.3d at p. 829.)

People v. Reynolds (1982) 137 Cal.App.3d 1016 (Reynolds) is also distinguishable from the present case. In Reynolds, the search warrant was based, in part, on the confidential informant’s statement that he had participated in a drug transaction with “Billy” and another individual for whom he provided a description. (Id. at p. 1018.) When the police executed the search warrant, they observed “Gregory Dawson” and the defendant through an open door. (Ibid.) After they announced their purpose, the defendant hurriedly left the room with a large bag of marijuana. (Ibid.) The officers searched the defendant and found three small baggies of marijuana in his pocket and the large bag hidden in the kitchen. (Ibid.) The defendant, who was charged with possession of marijuana for sale, brought a motion to disclose the informant’s identity. (Ibid.) The defendant testified at the hearing that he had gone to Billy’s house to purchase marijuana, Dawson had given him the large bag to select the three baggies that he wanted, and he was merely holding the bag when the police arrived. (Ibid.) The People’s theory was that the defendant was the second man identified by the confidential informant. (Id. at p. 1019.) Reynolds concluded that a hearing should be held to determine if the confidential informant could provide testimony that would assist the defendant. (Ibid.) Unlike the present case, the defendant in Reynolds provided “some evidence” that the informant’s testimony that someone other than the defendant was present during the controlled buy supported the defense theory that the defendant bought, rather than sold, marijuana.

Accordingly, under either the de novo or abuse of discretion standard, we conclude that the trial court properly denied defendants’ motion to discover the identity of the confidential informant without an in camera hearing.

B. Exclusion of Evidence of Third Party Culpability

Defendants next argue that the trial court erred in excluding evidence of third party culpability.

During the trial, defendants proffered the testimony of Sara Walden that Barros was selling methamphetamine in the neighborhood around Vaughn Avenue in January, February, and March 2009, and that he was passing counterfeit $10, $20, and $50 bills during this same period. ⁶ Defendants argued that this evidence showed that Barros owned the drugs and other items found on the coffee table. They acknowledged, however, that Walden was unable to state whether Barros was selling methamphetamine on February 7, 2009. The prosecutor argued that this testimony was “propensity evidence” and inadmissible under Evidence Code section 1101.

6 The police found a counterfeit $20 bill on the coffee table at the Vaughn Avenue residence. However, the trial court granted defendants’ motion to exclude this evidence.

The trial court ruled that the evidence was inadmissible, stating that it “granted the People’s motion to exclude that evidence as improper propensity evidence based on the offer of proof that Ms. Walden could not testify that on the date of the incident Mr. Barros had drugs or was selling drugs. [¶] Also, I excluded the evidence under Evidence Code Section 352 because any probative value was substantially outweighed by the probability that its admission would both create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury and necessitate an undue consumption of time and covering all the circumstances of all the other purported incidents. And again, it was improper propensity evidence concerning Mr. Barros’s character or reputation as a drug seller.”

“ ‘ “[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352.” ’ [Citation.]” (People v. Lynch (2010) 50 Cal.4th 693, 756.)

However, third party culpability evidence must also meet the requirements of Evidence Code section 1101. (People v. Davis (1995) 10 Cal.4th 463, 500-501 (Davis).) Thus, “evidence of a person’s character or a trait of his or her character... is inadmissible when offered to prove his or her conduct on a specified occasion” unless such evidence is “relevant to prove some fact (such as... intent, ... plan, knowledge, identity...) other than his or her disposition to commit such act.” (Evid. Code, § 1101.) As our Supreme Court explained: “[I]n People v. Farmer (1989) 47 Cal.3d 888, we specifically addressed the application of Evidence Code section 1101 to proposed evidence regarding prior criminal conduct of a third party alleged to have committed the charged offense. The defendant in Farmer offered evidence of a third party’s history of violent crime, on the theory that it tended to identify him as the perpetrator. We noted that under Hall, evidence linking a third person to the actual perpetration of the crime should be treated like any other evidence. [Citation.] We went on to hold, however, that the proffered evidence was properly excluded under Evidence Code section 1101, because it was offered not to show a fact other than the third party’s criminal disposition, such as motive or intent, but merely to show that the third party was the more likely perpetrator because he had a history of violence. [Citation.] Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Davis, at p. 501.) This court reviews the exclusion of evidence under the abuse of discretion standard. (People v. Brady (2010) 50 Cal.4th 547, 558.)

Defendants contend that the evidence of third party culpability was admissible to show Barros’s knowledge of the nature of a controlled substance and his intent to sell. However, Barros’s knowledge and intent were not at issue at trial. Instead, the evidence was offered to show identity, that is, that it was Barros, not Garabato, who possessed the methamphetamine for sale.

Defendants also argue that Barros’s sale of methamphetamine in the neighborhood and his possession of counterfeit money tended to show a common plan by Barros to keep methamphetamine at the Vaughn Avenue residence and sell it in the neighborhood, and that there were sufficient common features between the other crimes evidence and the charged evidence to establish identity.

“To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.... In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.] [¶]... For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

Here, defendants did not assert that Walden would have testified that Barros passed counterfeit bills in connection with his drug transactions during this period. The proffered evidence also did not include any testimony regarding the amounts of methamphetamine being sold or the type of packaging used, which would have connected Barros’s sales with the charged offenses. Thus, evidence that Barros sold methamphetamine in the neighborhood during this period did not tend to prove that he possessed the methamphetamine at the Vaughn Avenue residence. Moreover, the characteristics of the uncharged and charged crimes were insufficiently distinctive to establish identity. Since this evidence tended to show that Barros was the more likely perpetrator because he had previously sold methamphetamine, it constituted improper propensity evidence.

However, assuming that the evidence was admissible for some fact other than propensity, the trial court properly excluded the evidence under Evidence Code section 352. The evidence of third party culpability had slight probative value because it did not establish that Barros was selling methamphetamine on February 7, 2009, or that the methamphetamine belonged to him. In addition, Barros’s possession of the methamphetamine at the Vaughn Avenue residence would not have exonerated Garabato or Perez, since Garabato, Perez, and Barros could have jointly possessed the methamphetamine for sale. More importantly, in the event that the trial court admitted evidence of Barros’s uncharged acts, the prosecution would have sought the admission of the very damaging evidence of Garabato’s prior conviction of possession for sale of methamphetamine. Defendants, in turn, would have sought to introduce additional evidence relating to Barros’s prior convictions of possession for methamphetamine for sale. As counsel for Garabato explained, evidence relating to Barros’s prior drug crimes would have involved two or three more witnesses and additional questioning of other witnesses. Since the proposed evidence had little probative value, it was “substantially outweighed by the probability that its admission” would “necessitate undue consumption of time” or “of confusing the issues.” (Evid. Code, § 352.) Accordingly, the trial court did not abuse its discretion in excluding the evidence under Evidence Code section 352.

Relying on People v. Torres (1935) 5 Cal.App.2d 580 (Torres), U.S. v. Beckman (9th Cir. 2002) 298 F.3d 788 (Beckman), and U.S. v. Williams (9th Cir. 1993) 989 F.2d 1061 (Williams), defendants also contend that this evidence “was not ‘other crimes’ evidence at all, but rather proof of a pattern of conduct by Barros that include[d] his possession of the methamphetamine found in his own home....” (Italics omitted.) Defendants’ reliance on these cases is misplaced.

In Torres, the reviewing court found sufficient evidence to support the defendant’s conviction of possession of marijuana that was found in the defendant’s residence based, in part, on testimony that she sold marijuana a week earlier. (Torres, supra, 5 Cal.App.2d. at p. 581.) Torres did not consider the admissibility of this evidence, and thus does not assist defendants’ position. (Id. at pp. 581-582.)

In Beckman, the defendant drove a truck with a trailer containing 1, 541 pounds of marijuana across the border and was arrested. (Beckman, supra, 298 F.3d at p. 791.) The central issue at trial was whether the defendant knew the trailer contained marijuana or had been tricked into transporting it by another. (Ibid.) The trial court admitted evidence that a government witness had offered the defendant money to transport marijuana across the border on several occasions, and the defendant had successfully driven five or six loads for this individual. (Ibid.) This witness also explained that the drug couriers evaded detection by posing as dune buggy driving teams, who were returning from races in Mexico. (Ibid.) The reviewing court rejected the defendant’s argument that the evidence of other acts was inadmissible under rule 404(b) of the Federal Rules of Evidence, which is comparable to Evidence Code section 1101. The court relied on an exception to this rule which applies “when (1) ‘particular acts of the defendant are part of … a single criminal transaction, ’ or when (2) ‘ “other act” evidence... is necessary [to admit] in order to permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime.’ [Citation.]” (Beckman, at pp. 793-794.) Beckman reasoned that the government witness’s testimony was necessary to provide the jury with a “ ‘coherent and comprehensible story.’ ” (Id. at p. 794.) This evidence established the witness’s ongoing relationship to the defendant, thereby refuting the defendant’s claim that he did not know that marijuana was in the trailer and explaining why the defendant was entrusted with over $1,000,000 worth of marijuana. (Ibid.)

In Williams, the defendants were convicted of, among other things, conspiracy to manufacture and distribute methamphetamine, and possession with intent to distribute methamphetamine. (Williams, supra, 989 F.2d at p. 1065.) A government witness testified that he purchased cocaine and methamphetamine prior to and during the period of the conspiracy from one of the defendants, and that the other defendant delivered some of the methamphetamine. (Id. at p. 1070.) The defendants argued that the trial court had not adequately weighed the prejudicial effect of the evidence of the transactions that predated the conspiracy or those involving cocaine. (Ibid.) The reviewing court rejected their argument, reasoning that the witness’s “testimony regarding uncharged conduct was inextricable from and provided necessary context for [his] testimony about the charged conduct.” (Ibid.)

In contrast to both Beckman and Williams, here, evidence of Barros’s prior drug sales was not necessary to provide a “coherent and comprehensible story” regarding the charged offenses. Thus, the trial court properly excluded this evidence as inadmissible other crimes evidence under Evidence Code section 1101.

Even assuming that the trial court abused its discretion in excluding the evidence, it is not reasonably probable that a result more favorable to defendants would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) That Barros sold methamphetamine in the neighborhood did not negate the evidence that Garabato and Perez possessed the methamphetamine for sale on February 7, 2009. As the officers entered the residence, Garabato and Perez ran upstairs. Perez was found standing in front of a toilet with an empty plastic bag and a cell phone that contained drug-related messages. Garabato’s money clip with $353 was found next to the methamphetamine and drug paraphernalia on the coffee table. None of the officers heard footsteps that sounded like they were going downstairs. After defendants were placed in custody, the officers found a closed hatch door, which was covered with a carpet, in the kitchen. This door required a “propping device” to hold it open. Thus, though Barros was in the basement at the time of the search, both Garabato and Perez had greater access to the methamphetamine. Under these circumstances, it is not reasonably probable that the jury would have acquitted defendants even if the trial court had admitted evidence that Barros was selling methamphetamine in the neighborhood during this period.

Defendants also argue that the exclusion of this evidence violated their federal constitutional rights to due process and to present a defense.

Generally, “ ‘the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.’ [Citations.]” (People v. Jones (1998) 17 Cal.4th 279, 305.) As the United States Supreme Court has explained, “ ‘[s]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.’ [Citations.] This latitude, however, has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” ’ [Citations.] This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘ “arbitrary” or “disproportionate to the purposes they are designed to serve.” ’ [Citations.]” (Holmes v. South Carolina (2006) 547 U.S. 319, 324-325 (Holmes).)

Here, the trial court’s ruling did not involve the application of an “arbitrary” state rule of procedure, and the exclusion of the evidence was not “disproportionate to the purposes” which Evidence Code sections 352 and 1101 are designed to serve. Unlike the cases upon which defendants rely, the present case did not involve the exclusion of a third party confession or of evidence bearing on the reliability of defendants’ confessions. (See Holmes, supra, 547 U.S. at p. 325; Crane v. Kentucky (1986) 476 U.S. 683, 690-691 (Crane); Chambers v. Mississippi (1973) 410 U.S. 284, 298-302 (Chambers).) Instead, the proffered evidence would have shown, at most, that Barros possessed the methamphetamine for sale at the Vaughn residence because he had been selling methamphetamine both before and after defendants were arrested. As previously discussed, this evidence would not have exonerated Garabato, who also lived at the residence and had greater access to the family room when the officers arrived. The officers also found Garabato’s driver’s license and cash next to the methamphetamine. The proffered evidence would not have exonerated Perez, whose behavior when the officers arrived demonstrated that he was in constructive possession of the methamphetamine and whose cell phone suggested potential drug sales. Accordingly, the trial court’s ruling did not implicate defendants’ federal constitutional rights to due process and to present a defense.

C. Exclusion of Holdengraber’s Statement

Defendants also contend that the trial court erred in excluding Holdengraber’s statement, thereby depriving them of their right to present a defense.

1. Background

Holdengraber was living at the Vaughn Avenue residence when the officers conducted the search. However, the case against her was dismissed at the preliminary examination in March 2009 because the prosecutor did not want to disclose the identity of the confidential informant. In May 2009, Jena McLemore, a defense investigator, spoke with Holdengraber, who stated that the methamphetamine and other incriminating items found in the family room belonged to her and not to Garabato. As McLemore read from the police report regarding the list of items that had been seized, Holdengraber claimed that each item belonged to her. Holdengraber did not provide any details about the location of the items, the amount of methamphetamine, or how she obtained the methamphetamine. She also did not claim ownership of the money on the coffee table. Holdengraber told McLemore that she was on probation, and asked whether she was going to be remanded into custody when she came into court. McLemore told her that “it’s a possibility, ” and asked if she was going to change her statement. Holdengraber said that she would not. Holdengraber stated that she and Garabato were “friends” and they slept together in the same room. Holdengraber also stated that she had not had any contact with Garabato since the incident.

During an in limine hearing in June 2009, Holdengraber was questioned about her connection to the Vaughn Avenue residence and the evidence found by the police, and she invoked the privilege against self-incrimination.

At trial, defendants sought to introduce Holdengraber’s statement as a declaration against penal interest pursuant to Evidence Code section 1230. The prosecutor argued that this statement was unreliable because it was inconsistent with her earlier statement to Officer Perez. While she was being transported after the search, she stated that she did not “know what happened. Suddenly Mike [Garabato] just jumped into bed with me.” The prosecutor also commented that the statement lacked indicia of reliability because she provided no details.

The trial court excluded Holdengraber’s statement to McLemore as unreliable, stating: “Here, the statement was made right before trial and months after the incident to a defense investigator for Mr. Garabato. Ms. Holdengraber was living with Mr. Garabato at the time of the incident. Again, this shows her motivation and relationship to the defendant. Ms. Holdengraber made the statement before she knew she had been subpoenaed or would be subpoenaed for trial, though I understand she reportedly did not retract the statement later after she was subpoenaed and after she had asked about whether she would be remanded. After being informed that she would be subpoenaed, she did ask about being remanded but even then she asked about it and was apparently not sure of the effect of the statement. In fact, Ms. Holdengraber knew that the case against her was dismissed at the preliminary hearing, and she knew that it was dismissed because the People did not want to disclose the name of the informant, so the Court required the dismissal of the case against Ms. Holdengraber. [¶] The statement itself that the defendants are seeking to admit is a simple statement that, quote, the weed, bong, pipes, and drugs were hers. Then Ms. Holdengraber purportedly only claimed ownership of certain other items in response to leading questions from the investigator. In the initial statement Ms. Holdengraber did not say anything about the Comet can or the bags or the scales and only replied in response to leading questions from the investigator when the investigator was going down the list of property in the police report. [¶] Even the testimony of the investigator at the 402 hearing was solely in response to leading questions from defense counsel. And the investigator provided no cont[ext] whatsoever even for the simple statements that the, quote, weed, bong, pipes, and drugs were hers. There was no context at all for that statement. [¶] And the statements claiming ownership of all the items apparently were in response to leading questions by the investigator as well as the testimony to the investigator during the 402 hearing. There were leading questions of Mr. Garabato’s counsel. Again, the investigator apparently read the list of property items to Ms. Holdengraber and she then claimed ownership of certain items and no others. [¶] There was no description whatsoever of why the drugs were hers, how Ms. Holdengraber got the drugs. There was also no explanation of why the drugs were on the table if Ms. Holdengraber purportedly was upstairs asleep. There was no explanation of why there was residue in certain items and why the box of empty bags was left out as well as the Comet can.... [¶]... [¶] Moreover, the proffered hearsay statement is inconsistent with the prior statement. Ms. Holdengraber purportedly told the investigator as part of her statement that Michael, Mr. Garabato, was in the bedroom with her and that someone else must have let Mr. Perez in. In the spontaneous statement to the police officer on the way to the station on the day of the incident, however, Ms. Holdengraber said that she was ‘in bed when Mike jumped in bed with me.’... [¶] In addition, the spontaneous statement to the officer, quote, I don’t even know what happened, close quote, is impliedly inconsistent with her claim now that all the drugs were hers. Again, she was on the way to the police station. She knew that the house had been searched and why she was going to the police station and yet she purportedly said I don’t even know what happened and did not take any claim for the drugs or even purport to know why the drugs were there. [¶] Ms. Holdengraber’s statement in addition to being inconsistent with her prior spontaneous statement is also inconsistent with the facts, including the number of items on the table, which included a box of baggies and included other indicia of sales as well as the money.”

2. Legal Analysis

In general, hearsay is inadmissible unless it falls under a recognized exception. Evidence Code section 1230, which sets forth such an exception, provides in relevant part that “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” Thus, the proponent of such evidence must show that the declarant is unavailable, the statement was against the declarant’s penal interest, and the declaration was sufficiently reliable to warrant admission despite the fact that the statement is hearsay. In determining whether hearsay is sufficiently trustworthy, courts consider “ ‘not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ ” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) This court reviews the trial court’s finding regarding trustworthiness of a declarant’s statement under the abuse of discretion standard. (People v. Butler (2009) 46 Cal.4th 847, 866.)

Here, the trial court properly considered that Holdengraber was Garabato’s girlfriend, and thus had a strong motive to lie on his behalf. Moreover, other factors, including her prior inconsistent statements to the police, the lack of details in her statement, and that her statement was in response to leading questions by a defense investigator, tended to show that her statement was not reliable. Thus, the trial court did not abuse its discretion in excluding this evidence.

Defendants, however, argue that the trial court erroneously relied on “superficial and impermissible considerations” in excluding Holdengraber’s statement. They first point out that the timing of the statement “says little about its trustworthiness.” We disagree. Here, Holdengraber made her statement after the charges against her were dismissed because the prosecutor did not want to disclose the informant’s identity and shortly before trial. Had she made the statement before the preliminary hearing, it would have been more trustworthy.

Defendants next assert that the inconsistency between her statement to McLemore and her prior statements to the police had little bearing on her credibility. It is well settled that a witness’s statement that is inconsistent with prior statements may be considered on the issue of credibility. (See Evid. Code, § 780, subd. (g).)

Defendants also claim that the trial court’s concern about the investigator’s leading questions and the lack of details in her statement was “overblown.” There is no merit to this claim. “A question is ‘leading’ if it ‘suggests to the witness the answer the examining party requires.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 672.) Thus, the investigator’s use of leading questions indicated that Holdengraber’s statement was not reliable because it suggested to Holdengraber what response would assist the defense. The lack of details in her statement also undercut Holdengraber’s credibility.

Defendants’ primary challenge to the trial court’s ruling is their contention that it improperly considered the defense investigator’s credibility. They focus on the trial court’s statement that “[e]ven the testimony of the investigator at the 402 hearing was solely in response to leading questions from defense counsel. And the investigator provided no cont[ext] whatsoever even for the simple statement that the, quote, weed, bong, pipes, and drugs were hers. There was no context at all for that statement. [¶] And the statements claiming ownership of all the items apparently were in response to leading questions by the investigator as well as the testimony to the investigator during the 402 hearing. There were leading questions of Mr. Garabato’s counsel. Again, the investigator apparently read the list of property items to Ms. Holdengraber and she then claimed ownership of certain items and no others.”

“The credibility of the in-court witness is not a proper consideration” in considering whether to admit an exception to the hearsay rule. (People v. Cudjo, supra, 6 Cal.4th at pp. 607-608.) In our view, the trial court was not basing its finding on McLemore’s credibility, but rather it was referring to the fact that McLemore’s interview of Holdengraber suffered from the same limitations as defense counsel’s questioning of McLemore. In other words, the trial court’s focus was on the lack of details provided by Holdengraber in her statement.

Relying on Holmes, supra, 547 U.S. 319, Crane, supra, 476 U.S. 683, and Chambers, supra, 410 U.S. 284, defendants argue that the exclusion of Holdengraber’s statement deprived them of the opportunity to present a defense, thereby implicating the federal constitution. None of these cases, however, supports defendants’ argument.

At issue in Holmes was “whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.” (Holmes, supra, 547 U.S. at p. 321.) Holmes held that this rule was “ ‘arbitrary, ’ ” reversed the judgment, and remanded for further proceedings. (Id. at p. 331.) In reaching its conclusion, Holmes acknowledged that evidence of third party guilt may be excluded under certain circumstances. (Id. at pp. 326-327.) Crane, supra, 476 U.S. 683 also involved an arbitrary state law rule. In Crane, the defendant brought a motion to suppress his confession, which the trial court denied on the ground that it was voluntary. (Id. at p. 684.) The trial court then excluded evidence regarding circumstances surrounding the confession at trial. (Ibid.) Under Kentucky law, “a trial court’s pretrial voluntariness determination is conclusive and may not be relitigated at trial.” (Id. at pp. 686-687.) Crane acknowledged “the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability, ” but held that the procedural rule at issue deprived the defendant of a fair trial. (Id. at p. 690.) In contrast to Holmes and Crane, the present case does not involve an arbitrary rule of evidence, but rather a well-established rule that unreliable hearsay is inadmissible.

Chambers, supra, 410 U.S. 284 also does not assist defendants’ position. Chambers held that the exclusion of the testimony of three witnesses to whom a third party confessed constituted error, noting that the hearsay statements were made “under circumstances that provided considerable assurance of their reliability.” (Id. at p. 300.) In Chambers, the three confessions were made spontaneously to close acquaintances shortly after the murder, the confessions were corroborated by other evidence, and the third party was in the courtroom, under oath, and could be cross-examined. (Id. at pp. 300-301.) Chambers noted that “[a]lthough perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.” (Id. at p. 302.) Unlike the confessions made in Chambers, here, the “assurances of trustworthiness” were not present. Holdengraber was defendant’s girlfriend and thus had a motive to fabricate her statement. She was also unavailable to be cross-examined. Moreover, her statement was not made spontaneously to close acquaintances shortly after the search, but to a defense investigator, who asked leading questions.

In sum, the trial court did not abuse its discretion in excluding Holdengraber’s statement and the exclusion of this evidence did not deprive defendants of their right to present a defense.

D. Griffin Error

Perez contends that the prosecutor committed misconduct by commenting on his failure to testify.

1. Background

Regarding the text messages on Perez’s cell phone, counsel for Garabato argued: “All we know is that an officer who doesn’t even take a picture of the text messages tells you that’s what he saw. He doesn’t tell you about any other phone calls, any other messages, and wants you to believe that ‘program time’ from some other person and ‘erase me’ are some sort of code. Never seen it before but it’s some kind of code.”

Counsel for Perez also argued that Officer Fries did not know the meaning of the text messages that were found on Perez’s cell phone. She stated: “Officer Fries testified that the text messages found on Mr. Perez’s phone were consistent with narcotics and narcotic sales.... But wait a minute. This was the first time he’d ever seen text messages such as these in a drug and narcotic investigation. He’d never seen them before. How does he know? He couldn’t tell you.... [¶]... He doesn’t know what these text messages mean. He told you that himself.” Counsel later commented: “The fact is we have no idea what these text message mean. Officers couldn’t tell us. We have nothing to support a conclusion that it’s indicative of drugs. We just don’t know. We don’t know, and they’re asking you once again to do what the district attorney told you not to do and speculate about it.”

In rebuttal, the prosecutor argued: “It’s the People’s burden to prove beyond a reasonable doubt the elements of the charge. But the law allows me to comment on the defense’s lack of evidence or the failure to call logical witnesses. The defense had the opportunity to subpoena witnesses, to order phone records, to present a case -- or to present a defense. [¶] And if there was an innocent explanation for the evidence pointing to guilt, why didn’t we hear about it? Why wasn’t there any testimony? If there was, you know, cell phone records to indicate that the text messages that Officer Fries didn’t -- that he saw but didn’t actually photograph, why didn’t we order the phone records? If the cell phone was ringing continuously but people were calling for innocent reasons, for non-narcotics reasons, why weren’t the phone records ordered and why aren’t those people here to testify to say oh, I was calling Mr. Perez at 10:45 at night because I wanted him to bring me some water? Why didn’t we hear that? Because there wasn’t an innocent explanation for the evidence of guilt.”

Defense counsel objected to these comments and moved to strike them. The trial court sustained the objection and instructed the jury to disregard the comments.

2. Legal Analysis

Griffin, supra, 380 U.S. 609 held that the Fifth Amendment prohibits a prosecutor from commenting, either directly or indirectly, upon the defendant’s failure to testify in his own defense. (Id. at p. 613.) Though a prosecutor is not prohibited from commenting upon testimony or evidence presented at trial, it is Griffin error “for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371.) In reviewing a defendant’s claim of Griffin error, we examine whether there is a reasonable likelihood that the jury understood the remarks, within context, to be a comment on the defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.)

Here, the prosecutor did not refer directly to Perez’s failure to testify and, taken as a whole, the remarks were a comment on the state of the evidence. The prosecutor’s argument focused on defendants’ challenge to the content and meaning given to the text messages by Officer Fries. The prosecutor pointed out that defendants had failed to produce any evidence to clarify or explain the text messages either by subpoenaing cell phone records or the individuals who had sent the text messages. Since Perez was neither the only nor the best witness to testify regarding the meaning of the text messages sent to him, it is not reasonably likely that the jury understood the prosecutor’s argument as an indirect comment on Perez’s failure to testify.

E. Ineffective Assistance of Counsel

Defendants contend that their counsel rendered ineffective assistance by failing to make objections when the prosecutor committed misconduct during argument.

In order to prevail on an ineffective assistance of counsel claim, the defendant must first show that “counsel’s representation fell below an objective standard of reasonableness” “under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) If the defendant meets this initial burden, he or she must then establish prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 94.)

In order to raise the issue of prosecutorial misconduct on appeal, a defendant must make a timely objection, state the basis of his or her objection, and request that the trial court admonish the jury. (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) However, the “ ‘[f]ailure to object rarely constitutes constitutionally ineffective legal representation....’ [Citation.] Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206 (Huggins).) In failing to object to the prosecutor’s argument, defense counsel may have made a tactical decision to refrain from drawing the jury’s attention to the comments. (Ibid.)

Defendants argue that they were deprived of the effective assistance of counsel when counsel failed to object to various instances of prosecutorial misconduct, which included making misleading comments about the reasonable doubt standard, vouching for the integrity of the police investigation and the officers’ credibility, and disparaging the role of defense counsel.

“ ‘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.]’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.)

If an allegation of prosecutorial misconduct “ ‘ “ ‘focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” [Citation.]’ ” (People v. Carter (2005) 36 Cal.4th 1215, 1263.) “ ‘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.]’ [Citation.]” (Brown, supra, 31 Cal.4th at pp. 553-554.)

1. Comments Regarding the Reasonable Doubt Standard

Defendants first claim that the prosecutor committed misconduct when she made “misleading and improper” comments about the reasonable doubt standard.

The prosecutor stated: “You’ve all been lucky enough to be chosen as jurors in this jury trial. You sat through all the evidence, saw each other every day. If you were asked to write a one-page report to summarize what you observed and what you saw, there would be no doubt there would be some inconsistencies in terms of what you wrote down compared to what somebody else may have heard or saw. Do you have any doubt that you were not a juror in this trial, that the other 14 -- or the other 13 were not here with you? [¶] And if you were asked to recall what color tie the judge was wearing last Tuesday, if your recollection was a little bit different than the next person’s, does that mean you weren’t a juror in this trial? Do you have any doubt, any reasonable doubt that you were not here, that you were not in this trial? And when you think about that, consider that when you evaluate the witnesses, when you hear inconsistencies, when you decide whether or not those inconsistencies are minor or whether they’re major, whether they could be accounted for because people are focusing on different things when they enter a home, that things happen fast, they remember certain things, and then also consider the reasonableness of all of the evidence.” (Italics added.) The prosecutor later commented: “We talked about, you know, people recalling things differently, focusing on different things. It doesn’t mean you weren’t a juror here, that you didn’t sit through this trial, that you didn’t listen to this evidence, that you didn’t see this judge.” (Italics added.)

The prosecutor also referred to the presumption of innocence, stating: “Let’s talk about the presumption of innocence. The presumption of innocence is no evidence is presented, the defendant wins, not guilty. But once you hear the People present their evidence, you have to decide whether or not the defendants are guilty. And an example about the presumption of innocence is if I were to have a gun while you were all here and I were to point to the court reporter and shoot her and she died, when I start my trial in that case, I am presumed innocent before any evidence is presented despite all the witnesses that may be present in this courtroom today. [¶] And then now that you’ve heard the evidence, you need to decide whether the defendants are guilty and decide whether you have a reasonable doubt as to their guilt. If there is no reasonable doubt, they are guilty. And the evidence has shown beyond a reasonable doubt that they are guilty.”

Relying on People v. Nguyen (1995) 40 Cal.App.4th 28, defendants contend that the prosecutor’s comments were misleading. In Nguyen, the prosecutor argued that the reasonable doubt standard is “ ‘a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes.’ ” (Id. at p. 35.) Nguyen concluded that the prosecutor’s argument was “improper, ” though the prosecutor also stated that the reasonable doubt standard was “ ‘very high’ ” and told the jury to read the instructions. (Id. at p. 36.) However, Nguyen held that the issue had been forfeited because the defendant failed to object to the comments, and an admonition by the trial court would have cured the error. (Ibid.) Nguyen also concluded that the error was not prejudicial since the trial court correctly instructed the jury. (Id. at p. 37.)

In our view, the prosecutor’s comments in the present case did not dilute or mischaracterize the reasonable doubt standard. Instead, the prosecutor was observing that jurors’ might have inconsistent recollections regarding certain aspects of the trial, but they would all agree that they had participated as jurors in the trial. The prosecutor then compared this experience with that of various witnesses who might have had inconsistent recollections regarding minor details of the incident, but these witnesses were consistent in their recollection regarding more significant aspects. Thus, the prosecutor was referring to the process of remembering an event rather than that of making a decision as in Nguyen. Accordingly, there was no misconduct and counsel did not render ineffective assistance by failing to object to this portion of the prosecutor’s argument.

Relying on People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger), defendants also contend that the prosecutor committed misconduct by her use of a puzzle metaphor. We disagree.

The prosecutor argued: “And as part of a jury trial, each piece of evidence that you’ve heard, each witness gave you pieces of a puzzle to consider. And you know, there may be more than one puzzle or more than -- or pieces of another puzzle that may be mixed in. You may pull out a blue piece and initially think oh, this goes to the sky and later learn that it doesn’t quite fit because the image or the complete puzzle is a puzzle of the ocean. And as a juror, your role is to take the different pieces of evidence, pull out the reasonable pieces of evidence and look at the total whole picture. Don’t look at each piece in a vacuum because it may not mean much to you. Look at the big picture. And then when you look at the big picture, you’ll realize that the only reasonable inference of all of the evidence in this case, all of the pieces of the puzzle show that the defendants are guilty.”⁷

7 The trial court prepared a settled statement of the Power Point presentation used by the prosecutor during argument. Neither counsel nor the trial court could remember whether the prosecutor actually displayed the two final slides, which included puzzle pieces, to the jury during rebuttal. However, copies of these slides have been included in the settled statement because they might have been used. The first of the slides consists of seven puzzle pieces, which could not form a total image. The second slide shows the image of a rectangle with one piece missing while the remaining three pieces could not be part of this image.

In Katzenberger, the prosecutor used a Power Point program depicting a partially completed jigsaw puzzle of the Statue of Liberty during closing argument. (Katzenberger, supra, 178 Cal.App.4th at pp. 1264.) The prosecutor then argued to the jury: “ ‘[W]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces [....] And ladies and gentlemen, if we fill in the other two pieces [at this point the prosecutor apparently clicks the computer mouse again, which triggers the program to add the upper left-hand rectangle that includes the image of the torch in the statue’s right hand and the central rectangle that completes the entire image of the statue], we see that it is, in fact the [S]tatue of [L]iberty. And I will tell you in this case, your standard is to judge this case beyond a reasonable doubt.’ ” (Id. at p. 1265.) Katzenberger concluded that the prosecutor’s argument in conjunction with the Power Point program displaying an iconic image left “the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence [and it] invite[d] the jury to guess or jump to conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.) However, the court held that the misconduct was not prejudicial due to the presumption that the jury followed the trial court’s instructions that correctly defined the reasonable doubt standard. (Id. at pp. 1268-1269.)

In contrast to Katzenberger, here, the prosecutor did not use an iconic image and did not suggest there was a quantitative measure of reasonable doubt. In fact, the prosecutor did not refer to the reasonable doubt standard in this portion of her argument. Instead, the prosecutor urged the jury to examine all of the evidence and to consider reevaluating certain evidence if it did not seem reasonable in light of other evidence, that is, to “pull out the reasonable pieces of evidence and look at the total whole picture.” Accordingly, since there was no misconduct, counsel did not render ineffective assistance in failing to object to the prosecutor’s comments.

2. Comments Regarding Evidence and Credibility of Witnesses

Defendants next claim that the prosecutor committed misconduct when she suggested that evidence outside the record supported a guilty verdict and improperly commented on the credibility of the officers.

“A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) A prosecutor does not commit misconduct by asking the jury to believe his or her own version of events that are based on the evidence. (Huggins, supra, 38 Cal.4th at p. 207.)

“Prosecutorial assurances, based on the record, regarding the apparent honesty or reliability of prosecution witnesses, cannot be characterized as improper ‘vouching, ’ which usually involves an attempt to bolster a witness by reference to facts outside the record. [Citation.]” (People v. Medina (1995) 11 Cal.4th 694, 757.) In determining whether misconduct occurred, the reviewing court considers the statements in the context of the argument as a whole, (People v. Dennis (1998) 17 Cal.4th 468, 522) and whether the prosecutor’s statements were a fair response to defense counsel’s comments. (United States v. Flake (9th Cir. 1984) 746 F.2d 535, 539-541, overruled on other grounds by U.S. v. Uchimura (9th Cir. 1997) 125 F.3d 1282, 1286.)

After defense counsel’s closing arguments, the prosecutor argued: “And to complicate matters, you heard a bunch of red herrings, and we’ll talk a little bit more about that. The world’s greatest conspiracy. You had seven officers going to conduct a lawful search of the house. This fact was stipulated to. So they went with the intent to do the right thing, and somehow they got there, there’s no evidence of a crime. There’s not enough crime in San Jose so they have to come and make up a crime. They have to pretend, you know, that there’s drugs there that weren’t really there, that the defendants possessed it when they didn’t really possess it. They had to, you know, frame innocent people. They had to plant evidence, and they had to get on the stand, take the oath, perjure themselves, subject themselves to criminal liability and whatever ramifications for lying on the stand. This world’s greatest conspiracy for the biggest drug sale of the century; right? This conspiracy didn’t exist. The officers were there doing their job. They lawfully entered the house.” (Italics added.) The prosecutor later argued to the jury that the officers “were doing their job, investigating crimes, as we taxpayers expect them to do. And what do they get in return? They’re attacked, called liars.”

In considering defendants’ challenges to the prosecutor’s argument, we note that defense counsel repeatedly attacked the officers’ credibility and their investigation of the charged offenses. Garabato’s counsel stated: “They didn’t stake the house out. They didn’t monitor this house for drug trafficking. They didn’t look and see who was coming or going. They didn’t do any of that. They met up at San Jose City College, got a group of guys together. Interesting enough, all of them have the same level of experience, all of them four or five years, all of them 200 arrests. All of them had the exact same qualifications, the same amount of experience. They started the force together. They all know each other. They all work together. There’s a certain code, a certain towing the company line. [¶] Well, they decide to go to this particular house....” Counsel then suggested that Officer Fries lied about waiting 30 seconds to enter the residence. “Why does Officer Fries want you to believe that he waited 30 seconds? What would be the purpose of that? Well, let’s just say he went up to the door, didn’t hear anything, and he just rammed it open. It doesn’t sound right, does it? People don’t just ram doors open. That would be illegal. That would be an illegal search. We wouldn’t be here today. So he has to wait.... [¶] Now, if you believe that he just rammed the door, ... if you believe that’s what happened instead of his waiting of 30 seconds, then that means he got on the stand and he lied to you. And that would mean that every single officer that came up after him lied to you as well, that they all decided to follow the same 30 second story.”

Garabato’s counsel later suggested that the officers entered into a conspiracy to testify falsely. “They all got up and used the exact same language as if it was rehearsed, as if they all sat around and decided what they were going to say.” He continued: “The officers misled you. The officers told you something that wasn’t true.... They misled you and they towed the company line.” Counsel also claimed that the officers tampered with the evidence. “Well, how do we know officers didn’t touch or move anything? We don’t.... And do you believe he’s being truthful? Do you believe that’s how it happened? Or is it more plausible that they’re pulling certain pieces of evidence and putting it on the coffee table? [¶]... [I]t’s more likely that they found the money clip or whatever it is from upstairs and put it on the coffee table....”

Garabato’s counsel again argued that the officers lied: “We don’t do fingerprints. It’s a lie. They just lied to you. I know lie is a bad word to say, I’m sorry, but it’s not true.” Counsel also claimed that the officers lied about whether Holdengraber was groggy, about the existence of a pay-owe sheet, and about knocking on the bathroom door before entering.

Garabato’s counsel also argued that the officers “decided the extent of evidence that they were going to put forward in this case. They decided not to do any fingerprinting whatsoever. They decided not to bring in Mr. Barros or make him a witness. They decided not to look at the camera -- or excuse me, the phone. They decided these things. They could have proved this case against maybe Mr. Barros, Holdengraber, or anybody else, but they decided that, hey, no, we don’t want evidence that could possibly contradict what we already have. Let’s just say it was those two.” In summing up his attack on the officers, counsel stated, “And to do your investigation to just two individuals is unfair. It leads to an entirely corrupt investigation, an untrustworthy investigation.” “And unfortunately, the officers made a lot of mistakes, ignored a lot of things and all in pursuit of drugs. It’s not fair and it’s not right.”

Defendants first contend that the prosecutor committed misconduct when she argued that “the lawfulness of the search correlated with some expectation that ‘evidence of a crime’ would be found at [Garabato’s] residence.” We disagree.

Here, the parties entered into a stipulation that the officers’ search of the residence was lawful in order to avoid any reference to the fact that Garabato was on parole. The stipulation also prevented the jury from speculating as to the propriety of the officers’ motives at the time of the search. However, we are not persuaded that the prosecutor’s argument implied that the officers had prior information that drugs would be found in Garabato’s residence. After referring to the lawfulness of the officers’ search, the prosecutor stated, “[S]omehow they got there, there’s no evidence of a crime. There’s not enough crime in San Jose so they have to come and make up a crime. They have to pretend, you know, that there’s drugs there that weren’t really there, that the defendants possessed it when they didn’t really possess it.” Thus, the prosecutor argued that the defense theory of a police conspiracy was not plausible because it ignored the evidence of drug sales. Accordingly, the prosecutor did not commit misconduct in commenting on the parties’ stipulation and the reasonable inferences to be drawn from the evidence admitted at trial.

Defendants next argue that the prosecutor’s claim that the police would never “‘jeopardize their careers’ by testifying falsely... constituted improper vouching, referred to information outside the record, and was intentionally deceptive.”

Here, the challenged portions of the prosecutor’s argument were in response to the defense theory that the officers had lied and committed perjury in order to frame innocent people. The prosecutor outlined the ramifications of this theory, that is, that the officers “had to plant evidence, ” “perjure themselves, ” and “subject themselves to criminal liability.” She then posed a rhetorical question, “The world’s greatest conspiracy for the biggest drug sale of the century, right?” Thus, the prosecutor was suggesting that the officers had no motive to enter into such a conspiracy and that the defense theory was unreasonable. Accordingly, there was no misconduct.

Defendants argue, however, that they never suggested that the police planted the methamphetamine or erroneously claimed that it was found in the family room. We disagree with defendants’ characterization of the record. The prosecutor’s reference regarding whether the officers “had to plant evidence” was in response to defense counsel’s suggestion that it was “more plausible that [the officers were] pulling certain pieces of evidence and putting it on the coffee table.”

Defendants also challenge the prosecutor’s comment that the officers “were doing their job, investigating crimes, as we taxpayers expect them to do. And what do they get in return? They’re attacked, called liars.” However, defendants have not included the prosecutor’s subsequent comment that “[t]here’s no evidence at all the officers had a motive to frame innocent people. There’s no evidence that the officers knew Mr. Garabato, that the officers knew Mr. Perez, that the officers knew Troy Barros or Shannon Holdengraber. There’s no evidence to show why they would favor one person and not the other.” Thus, taken in context, the prosecutor was emphasizing that there was no evidence to support the defense theory. Accordingly, defense counsel did not render ineffective assistance by failing to object to these comments.

3. Comments Disparaging the Role of Defense Counsel

Defendants also argue that the prosecutor committed misconduct by “portray[ing] defense attorneys, all defense attorneys, as out to deceive the jury....”

The prosecutor stated: “When I sit down, the defense will have an opportunity to do their closing arguments. And it’s a common tactic of the defense to muddle the issues, misdirect you, throw in red herrings, smoke screens to distract you from the real issues in the case.” (Italics added.)

In her rebuttal argument, the prosecutor stated: “And what did you really expect that the defense was going to argue? The People’s case, the evidence in this case that you heard from the four police officers. If the defendants were fine or happy with anything the officers said, they might as well just admit they’re guilty and then there would be no need for this trial. Of course they’re going to attack the officers. They’re the bearer of bad news. They’re the ones that will come in and provide the evidence to prove that the defendants were guilty beyond a reasonable doubt. It’s defense tactic 101. [¶] Divert the attention from the evidence that was actually presented, the evidence that proves that the defendants were guilty, and let’s just attack other people. Let’s attack Troy. Let’s attack Shannon. Let’s attack the police officers.” (Italics added.) Regarding the lack of fingerprint evidence, the prosecutor commented, “[The] defense will always tell you there’s never enough evidence. There’s never enough proof.” “There’s never enough evidence for the defense, never.” (Italics added.)

A prosecutor may not claim that defense counsel has fabricated a defense or imply that he or she has deceived the jury. (People v. Bemore (2000) 22 Cal.4th 809, 846.) “Such attacks on counsel’s credibility risk focusing the jury’s attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citations.]” (Ibid.)

People v. Gionis (1995) 9 Cal.4th 1196 is instructive. In Gionis, the prosecutor recited three quotations about lawyers: “ ‘ “Lawyers and painters can soon change white to black. Danish Proverb.” [¶] “If there were no bad people there would be no good lawyers. Charles Dickens.” [¶] “There is no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth.” Jean Giraudoux, 1935.’ ” (Id. at p. 1216.) Defense counsel did not object to these quotations. (Ibid.) Defense counsel, however, did object to the prosecutor’s use of the fourth quotation, which was “ ‘ “[y]ou’re an attorney. It’s your duty to lie, conceal and distort everything and slander everybody.” ’ ” (Ibid.) The trial court sustained the objection and admonished the jury that it “ ‘would be entirely inappropriate and a violation of their ethical standards and duties to lie in court.’ ” (Ibid.) The prosecutor then recited a quotation from Shakespeare: “ ‘In law, what plea so tainted and corrupt but being seasoned with a gracious voice, obscures the show of evil.’ ” (Ibid.) Defense counsel did not object. (Ibid.) Gionis held that the defendant’s failure to object to four of the five quotations forfeited the issue of prosecutorial misconduct on appeal. (Ibid.) However, the court also addressed the merits and concluded that “the prosecutor’s remarks simply pointed out that attorneys are schooled in the art of persuasion; they did not improperly imply that defense counsel was lying.” (Ibid.) As to the fourth quotation, the court held that the prosecutor’s comment was improper, but that the trial court’s admonition cured any prejudice. (Id. at pp. 1216-1217.)

Here, even assuming that the jury understood the prosecutor’s references to defense tactics as suggesting that defense lawyers generally employ dishonest methods in presenting a case and thus the prosecutor committed misconduct, defendants have failed to show ineffective representation. The prosecutor’s remarks were brief and defense counsel may have made a tactical decision to refrain from focusing the jury’s attention on them. (Huggins, supra, 38 Cal.4th at p. 206.)⁸

8 Since we have found no error, we need not consider the issue of cumulative error.

III. Disposition

The judgments are affirmed.

WE CONCUR: McAdams, J.^* Duffy, J.

* Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.