Opinion
A147200
08-16-2017
THE PEOPLE, Plaintiff and Respondent, v. SAGRA MARIA WALKER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR304835)
A substantial quantity of methamphetamine was found by police in the home of Sagra Maria Walker. She admitted to arresting officers that the contraband was hers. At trial, she testified the admission was made only in exchange for a detective's promise not to arrest her boyfriend and she was not in fact guilty of the crime. The detective denied any such agreement and the jury convicted Walker of possession of methamphetamine for sale. Walker argues the prosecutor committed misconduct during closing arguments by (1) reserving an argument on aiding and abetting liability until his rebuttal, thus precluding the defense from responding; (2) vouching for the detective's credibility and honesty; and (3) telling the jury that, in order to believe Walker's testimony, it would have to conclude the detective committed perjury. We affirm.
I. BACKGROUND
Walker was charged by information with one count of possession of methamphetamine for sale. (Health & Saf. Code, § 11378.) The following evidence was presented at her jury trial.
Prosecution Case
On December 26, 2013, at about 7:00 p.m., police executed a search warrant on a residence in Vacaville. When officers entered, Walker was standing at the threshold between a front living room and a hallway that led to a room containing a mattress and a gaming system, a bedroom cluttered with belongings, a room used as an office, and a master bedroom. As officers approached the master bedroom, they heard a shower running and saw Jeffrey Piazza emerge from the shower. Also located in the house or backyard were Amy and Billy Couch, who claimed to live in the cluttered bedroom, Brian Sison, and one other person.
In the master bedroom, on top of a nightstand by the bed, police found a plastic bag containing suspected methamphetamine, Piazza's wallet, and Piazza's cellphone. Also in or near the nightstand was a yellow envelope that contained a small amount of loose methamphetamine, three used syringes, and a court document bearing Piazza's name. On the bed, police found about $100 in cash in various denominations and a black pouch containing a suspected methamphetamine glass pipe and three unused zip-sealed bags. On top of one dresser, police found a small metal spoon lying next to a portable digital scale. The spoon and scale's weighing surface tested presumptively positive for the presence of methamphetamine. Inside a drawer of the same dresser, police found female underwear and two zip-sealed bags containing more suspected methamphetamine. In a set of plastic drawers next to the dresser, they found a rental agreement between Walker and Billy Couch, and plastic grocery bags with pieces cut or torn off. An officer testified that such bags are often found in drug investigations, as the missing pieces are used as ad hoc packaging. On a desk chair at the foot of the bed, police found a "small plastic knotted heat-sealed bindle . . . [made from] the corner of the grocery bag, same type of plastic, same consistency" as the bags found in the plastic drawer, as well as another suspected methamphetamine pipe. Under the bed, police found a piece of paper addressed to Walker. In a closet, they found a purse containing about $389 in cash, gift cards, and Walker's identification. A testifying officer recalled seeing only female clothing in the closet and the dresser drawer where the bags of suspected drugs were found, but he did not specifically look for male clothing in those places. The substances in the plastic bags and bindle were later confirmed to be methamphetamine. The large bag found in the dresser drawer contained more than 44 grams of methamphetamine. The pipes, scale, and plastic bags were not tested for fingerprints.
Vacaville Police Officer Dustin Willis, a detective on the narcotics enforcement team, interviewed Walker in one of the rooms off the hallway with no one else present. He testified that they spoke informally for "a couple of minutes maybe" before he started recording the interview. Walker immediately told Willis she wanted to be an informant and provide information about her supplier in order to lessen her criminal exposure. Willis confirmed at trial that the police will sometimes drop charges if a suspect can provide information leading to the arrest of other criminals. Following his usual practice, Willis first got a recorded statement from Walker about the drugs found in her residence and then discussed off the record a possible informant arrangement with her. Before the recording started, Walker volunteered that her husband was sick and she was trying to evict the Couches. She might have mentioned Piazza in passing, but they had no in-depth conversation about him.
A recording of the interview was played for the jury. The following exchange occurred after Willis read Walker her Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436.
"[Walker]: Yes, I understand. Are you—are you recording me?
"[Willis]: Yes, I have to record this conversation just so . . .
"[Walker]: I mean . . .
"[Willis]: . . . everything[']s out in the open. You don't say I didn't say anything and I don't say you didn't say anything that isn't true, right? So, um, it sounds like . . . they found some drugs in your room.
"[Walker]: Yeah.
"[Willis]: It sounds like maybe in your dresser.
"[Walker]: Yeah.
"[Willis]: Um, do those belong to you?
"[Walker]: Yes.
"[Willis]: Yes?
"[Walker]: Yes.
"[Willis]: Okay. Um, anything else in the house? It sounds like a scale may be in there.
"[Walker]: I have scales but . . . I do hair and I weigh my color. [¶] . . . [¶]
"[Willis]: All right. How much money in that room?
"[Walker]: There's about $300 in my wallet, I think.
"[Willis]: When was the last time you sold methamphetamine?
"[Walker]: Today.
"[Willis]: Today? Okay. How much?
"[Walker]: Not much. I mean I know you recording me. That freaks me out.
"[Willis]: I know it freaks you out, but you understand why I have to do it, right?
"[Walker]: Yeah.
"[Willis]: Okay. 'Cause you don't want me to say that you said something that you didn't say and vi[ce] versa. . . . .
"[Walker]: I know I just don't like the recording thing.
"[Willis]: I know. I—trust me I don't like it either. I don't sound good on the recording. . . .
"[Walker]: No, it's what being said.
"[Willis]: No, I get that too.
"[Walker]: You understand. Come on.
"[Willis]: I—I under
"[Walker]: I'm doing my part and I don't want . . .
"[Willis]: I—I can . . .
"[Walker]: . . . you fuckin' back stab me. Your worried that I'm gonna lie to you.
"[Willis]: I'm not gonna back stab you, so, uh, the—the only meth that I've seen so far that, um, what—what I'm hearing from them laying out on the table, is that also yours or does that belong to somebody else?
Willis confirmed that his reference to a bag "on the table" referred to the bag found on the nightstand. He did not specifically ask Walker about the large bag of methamphetamine that was found in the dresser drawer.
"[Walker]: Um, I'm gonna take the whole thing.
"[Willis]: You['re] gonna take the whole thing?
"[Walker]: Yes.
"[Willis]: Doesn't necessarily mean that it's yours. Is it yours? Do you know what I'm talking about?
"[Walker]: Yes.
"[Willis]: You know what it looks like?
"[Walker]: Um, it's in a bag right? In a little baggy.
"[Willis]: It's in a little baggy. Do you know what color?
"[Walker]: Yeah, it's white. It's all white.
"[Willis]: Clear?
"[Walker]: Um, no. No. More powdery is . . .
"[Willis]: I'm talking about the bag?
"[Walker]: The bag's clear, yes.
"[Willis]: Okay. Um, how long have you been selling methamphetamine?
"[Walker]: Mmm . . .
"[Willis]: You said—go ahead.
"[Walker]: Quite some time now.
"[Willis]: That's the question. How long?
"[Walker]: Mmm, since I moved into this house so I can pay for it. [¶] . . . [¶] . . . [S]ince January.
"[Willis]: So just to pay the bills?
"[Walker]: To pay the bills. That's all. 'Cause I've been fighting with courts for him.
"[Willis]: For you[r] husband. Who you mentioned earlier I think is sick, correct?
"[Walker]: Yeah. He had strokes last year.
"[Willis]: Okay. All right. Anything else I need to know about? Any firearms? Anything like that?
"[Walker]: No firearms."
Willis denied promising Walker anything or having made any agreement with her before recording the interview. When asked what Walker meant when she said, 'I'm doing my part," Willis responded, "I believe the reason is that . . . she initiated conversation regarding she wanted to be an informant. I think she probably believed that if she . . . was honest about her conduct that it would somehow help her become an informant, but I'm not sure." Later that night, Willis talked to Walker again. She provided "specific names of people that she believed could lead to large amounts of methamphetamine"; Willis did not write an official police report about this information.
Willis attempted to interview Piazza at the residence, but Piazza claimed he did not live there and invoked his Miranda rights. Willis decided not to arrest Piazza because Walker had taken responsibility for the drugs and it seemed clear Piazza was just a visitor in the home. Willis personally entered the master bedroom and observed that "every drawer, every item of clothing in the closet, every pair of shoes that I saw, purses, et cetera, were all female in nature. I did not see a drawer dedicated to a man or any section of the closet dedicated to male clothing," although there might have been one outfit of male clothing lying around while Piazza was in the shower.
Willis reviewed text messages that were extracted from a cellphone found on Walker's person. The messages included: "$40 you said"; "meet me at Little Caesar's"; "come to 7-Eleven"; "what you need?"; "125"; "I need a little bag"; "only got 60 on me now, can I get you 20 tomorrow"; "I'm your normal customer lol"; "hey, can I please come by and pick that up from you"; "you up"; "hi Sagra it's Seema. I was really, really hoping I could get some stuff, please, and I will pay you on this coming Tuesday"'; "hey Sagra, is it cool to come through?"; "I don't have a pipe either but do have some money, honey"; "got 75 total K get you 25 on the next"; "how much for a teen." Willis, who was qualified as an expert on whether methamphetamine was possessed for sale, testified that "you up" and "come through" are "very common term[s] for customers to ask their dealer if they're in possession of products to sell," and a "teen" commonly referred to a sixteenth of an ounce of methamphetamine. An incoming text message on December 24, 2013, was addressed to a "Jeff," Piazza's first name. Four incoming messages were addressed to a "Sagra," Walker's first name, and three incoming messages asked about "Jeff" but were not addressed to him.
Willis opined that the methamphetamine seized from the master bedroom was possessed for sale based on the overall weight of the drugs seized (about 50 grams in total), which represented 250 to 500 typical doses and an approximate value of $1,700 ($1,000 per ounce); the presence of a digital scale by a spoon with no burn marks to suggest it was used for personal consumption; matching used and unused packaging; packaged amounts that were typical of street sales (one- or two-sixteenths of an ounce); the text messages extracted from the cellphone; and Walker's recorded statement.
Defense Case
Walker testified that she worked as a self-employed hairdresser. She leased the house and subleased rooms to the Couches and Sison. Piazza, her boyfriend, had shared her master bedroom since September 2013 except for a period of incarceration. When the police searched the house, Piazza's pants and shirts were hanging in the master bedroom's closet, his socks and underwear and some shirts were in the dresser drawers, including the drawer where the drugs were found, and his toiletries were present.
Walker said Piazza used and sold methamphetamine and supplied her with the drug. She used but did not sell the drug. Piazza used the nightstand where drugs were found and owned the large quantity of drugs found in the dresser. Piazza used her phone every day. He used his phone only to store contacts and other information and did not turn it on. Some messages on the phone were to Piazza and some were to Walker and Piazza jointly, asking Walker about hair care and Piazza about drugs. Walker knew Piazza used her phone to sell methamphetamine. She also allowed him to store methamphetamine in the master bedroom, although she did not know the amount, and she saw him weigh it on the scale. Piazza helped out with food costs and other expenses while he lived with Walker.
Walker and Willis spoke for about 20 minutes before Willis started recording her statement. Willis told her a large amount of methamphetamine had been found in her room, but Walker denied knowledge of the quantity of drugs present. Willis told her the police would be lenient if she identified methamphetamine suppliers. She later did so. Walker asked if Piazza was going to be arrested and said she would "take everything, all the charges, just everything so he could stay at the house." She wanted Piazza to prevent the Couches, who were hoarders she was trying to evict, from stealing her property or filling her house with clutter. Willis indicated that if Walker took responsibility for all of the drugs found in the house, Piazza would not be arrested, but he asked her not to mention this agreement on the recording. Walker was referring to Willis's request when she said she was doing her part and expressed concern on the recording that Willis might backstab her. Walker answered Willis's questions during the recorded interview "in the way that I thought I had to answer." She said she had sold methamphetamine for a year because it was the first thing that came to mind and said she had sold drugs the day of her arrest because it was "part of the deal" so Willis would not arrest Piazza. She admitted that, following her arrest, she bailed out of jail after only a few hours.
Verdict and Sentencing
The jury found Walker guilty of possession of methamphetamine for sale. The court suspended imposition of sentence and placed Walker on three years' formal probation on condition she serve 180 days in jail.
II. DISCUSSION
Walker raises claims of prosecutorial misconduct during closing argument. "Under the federal Constitution, a prosecutor's behavior deprives a defendant of his rights '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 that falls short of that standard 'may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' [Citations.] [¶] ' " ' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations] . . ." [Citation.] "A prosecutor may 'vigorously argue his case and is not limited to "Chesterfieldian politeness" ' [citation], and he may 'use appropriate epithets . . . .' " ' [Citation.]" ' [Citations.] 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (People v. Gamache (2010) 48 Cal.4th 347, 370-371.) A. Aid and Abet Argument on Rebuttal
Walker first argues the prosecutor committed misconduct by waiting until his closing rebuttal argument to argue that Walker was guilty on an aiding and abetting theory, thus precluding the defense from responding to the argument. She has not established reversible error.
1. Background
When jury instructions were first discussed, aiding and abetting instructions were not proposed by the prosecutor, defense counsel, or the court. After Walker testified, the court sua sponte informed counsel it would add aiding and abetting instructions "in light of the testimony we've had from the defendant." Walker's objection was overruled. Immediately thereafter, the court instructed the jury. Court recessed for the day and counsel presented closing arguments the next morning.
The instructions included: "To prove the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime, and [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows the perpetrator's unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent a crime does not by itself make him or her an aider and abettor." (CALCRIM No. 401.)
In his initial closing argument, the prosecutor urged the jury to find Walker guilty on a direct perpetrator theory. Defense counsel did not address aiding and abetting liability in his closing, but he urged the jury to review the jury instructions during deliberations and emphasized that "every one of them are [sic] important." On rebuttal, the prosecutor argued that "even if you believed [Walker's] testimony . . . she would still be . . . guilty of aiding and abetting." Defense counsel's objection that the argument was not proper rebuttal was overruled.
"[O]ne, . . . Piazza did possess something for sale, . . . Walker knows that the perpetrator . . . intended to commit the crime. . . . Before or during the commission of the crime, [she] intended to aid and abet . . . [¶] . . . [by] lending the cell phone, giving him a place [to] stash his methamphetamine, allowing him to do business at the house, seeing him laying it out, . . . [i]t's all encouraging. [¶] And . . . her words and conduct did in fact aid and abet the perpetrator. . . . She profited from it. She got money, according to her. She got methamphetamine from the whole thing."
2. Analysis
To support her argument that the prosecutor's rebuttal constituted misconduct, Walker cites Penal Code section 1093, subdivision (e)—which provides that the prosecutor and defense have the right to make closing arguments, with the prosecutor "opening the argument and having the right to close" (i.e., make a rebuttal argument)—as well as People v. Robinson (1995) 31 Cal.App.4th 494 (Robinson) and People v. Hill (1967) 66 Cal.2d 536 (Hill). The statute does not restrict the scope of the prosecutor's rebuttal and Walker mischaracterizes the two cases.
Robinson held it was error for a prosecutor in closing argument to present only "a perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply, and then give a 'rebuttal' argument—immune from defense reply—10 times longer (35 reporter transcript pages) than his opening argument." (Robinson, supra, 31 Cal.App.4th at p. 505, italics added.) The specific error found in Robinson—a perfunctory opening intended to foreclose defense argument—did not occur here. In contrast to Robinson, the prosecutor's initial closing argument here filled over 11 pages of transcript and his rebuttal about three and one-half pages. We take Walker's broader point that a prosecutor should not reserve arguments for the rebuttal in a manner that precludes defense counsel from responding to them, but we are not convinced that Robinson precludes a prosecutor in all instances from raising new arguments in rebuttal.
Hill holds that "a prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record." (Hill, supra, 66 Cal.2d at p. 560, italics added.) In Hill, the defendant testified for only a limited purpose (regarding the voluntariness of a confession) and the prosecutor was not allowed to cross-examine him on other issues. Defense counsel argued during his penalty phase closing argument that the prosecutor elicited no testimony from the defendant to show the defendant had no redeeming qualities. In rebuttal, the prosecutor responded by telling the jury what he would have asked the defendant had he been permitted to freely cross-examine him. (Id. at pp. 559-560.) The court rejected the defendant's argument that the rebuttal argument infringed on his right to remain silent. "The prosecutor's comments can fairly be construed as having been provoked by defense counsel's foregoing improper argument that the prosecutor had failed to attack [the defendant's] background while he was on the stand and that as a consequence no showing had been made that [the defendant] was without redeeming qualities." (Id. at p. 560.) There was "no substantial departure from propriety in the prosecutor's response." (Id. at p. 561; see People v. Fernandez (2013) 216 Cal.App.4th 540, 563-564 [prosecution rebuttal argument mostly a fair response to defense closing and not so egregious as to render trial unfair].) While acknowledging some impropriety in the prosecutor's rebuttal argument, Hill held it did not rise to the level of misconduct in context. Here, the only impropriety asserted by Walker is that the prosecutor's arguments about aiding and abetting liability were not responsive to the defense closing. Hill does not address the question of whether a prosecutor may raise a new argument in rebuttal that is not otherwise responsive to the defense closing argument.
Even if we assume for purposes of discussion that new arguments in a prosecutor's rebuttal must be responsive to the defense argument, we would not find error here because the prosecutor's aiding and abetting argument was a fair response to the defense counsel's comment that the jury should review all jury instructions during deliberations. The prosecutor's discussion of the specific aiding and abetting instruction was a fair response to defense counsel's invitation.
We note that Walker misleadingly argues the prosecutor deliberately "waited until the very last possible minute to obtain aiding and abetting instructions," thus "forc[ing] defense counsel to spend the night preparing to respond to a brand new theory of liability the very next morning," and then induced defense counsel to abandon that argument by declining to address aiding and abetting liability in his initial closing argument, "sandbagging" him when he argued the theory on rebuttal. Walker's statement that the prosecutor sought the aiding and abetting instructions is inaccurate. The trial court unilaterally announced it would give those instructions based on Walker's trial testimony. The late determination to add those instructions is attributable to the timing of Walker's testimony, not any connivance on the part of the prosecutor. Significantly, Walker does not argue on appeal it was error to instruct on aiding and abetting, nor could she. The instructions were clearly supported by Walker's testimony that she allowed Piazza to store methamphetamine for sale in her room and knew he measured it in her room using the spoon and scale. Walker claims the prosecutor "tricked" defense counsel into abandoning his aiding and abetting argument. However, defense counsel knew when making his closing arguments that the jury had been instructed on aiding and abetting liability. Defense counsel apparently made a choice not to address those instructions in his closing, in the hope that the prosecutor would not raise them in rebuttal. That strategic decision did not transform the prosecutor's rebuttal argument on the instructions into misconduct, particularly given defense counsel's comment that the jury should consider all of the instructions. B. Comments About Willis's Credibility
Walker argues the prosecutor committed misconduct by vouching for Willis's credibility and arguing that the jury, in order to credit Walker's testimony, had to conclude Willis committed perjury. We find no prejudicial error.
1. Background
In his initial closing argument, the prosecutor argued the case "boils down to the two statements. Do you believe Detective Willis . . . [o]r, do you believe Ms. Walker[?] Because there is no reconciliation between the two statements. . . . One of them has to be true, and one of them has to be false. . . . [¶] So is Detective Willis a dirty cop[?] Well, I'm not going to get up here and I can't tell you, um, you know, my feelings about that. That's not evidence. What you have to do is look at the actual evidence. . . . Look at the credibility." He argued the relative credibility of Willis and Walker largely by reference to the factors set forth in the jury instruction on witness credibility. He argued in part: "You had the chance to judge [Willis's] credibility to find inconsistencies in his testimony, to see if he would be the type of person that would go up there and commit perjury to you, to see if he would be the type of person that would be a dirty cop, that would try to bribe a criminal defendant into coming into a false confession. Is Detective Willis that type of person . . . ? "
Defense counsel began his closing argument by reminding the jury that "what I'm about to say is not evidence. It's what I believe the witnesses testified to or not. . . . And the same with [the prosecutor]. All of what he said to you is not evidence." Defense counsel agreed that the case "does come down to Officer Willis." However, "it doesn't necessarily have to be that you think Officer Willis was lying to you. . . . It is about what was the manner [of] testifying . . . ." Defense counsel cited several reasons to question Willis's credibility: Willis's full recall in response to the prosecutor's questions and limited recall in response to defense counsel's questions; his admission that he spoke to Walker before recording her statement and his failure to recall much of their conversation; his response to Walker's comment about backstabbing, which was initially hesitant and then simply confirmed he would not backstab her; his decision not to arrest Piazza even though methamphetamine was found near a document showing Piazza had a pending drug charge; and the prosecution of Walker despite her providing names of suppliers, which indicated she did not provide valuable information and thus could not have been a significant drug seller.
On rebuttal, the prosecutor characterized the defense argument as a claim that, before Willis started recording the interview, he "strong armed Ms. Walker, forced her to make a statement, cajoled her, bribed her, badgered her. I mean, he wanted her to take the whole thing. He wanted her to confess. [¶] . . . Is the [recorded] statement consistent with what happened before[?]" The prosecutor then played the recorded interview and rhetorically asked the jury whether it sounded like Willis was pressuring Walker.
2. Failure to Object
Walker did not object to any of the comments just mentioned. "The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (People v. Centeno (2014) 60 Cal.4th 659, 674.) We cannot say on this record that, assuming error, an objection—particularly an objection early in the prosecutor's initial closing argument—would have been futile or that any prejudice could not have been cured by admonition. The failure to object, therefore, resulted in forfeiture. However, because Walker argues her trial counsel's failure to object was ineffective assistance of counsel, we address the merits of her claims.
3. Vouching
Walker argues the prosecutor effectively vouched for Willis's credibility based on his personal familiarity with Willis or based on other facts outside the record. There was no prejudicial misconduct.
"A prosecutor may make 'assurances regarding the apparent honesty or reliability of' a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom." ' [Citation.] But a 'prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.' " (People v. Turner (2004) 34 Cal.4th 406, 432-433.)
Walker first argues the prosecutor engaged in paraleipsis, i.e., saying he would not make an argument for the purpose of suggesting that very argument to the jury. The Supreme Court has indicated such a rhetorical device might not shield a prosecutor from a claim of misconduct. (See People v. Wrest (1992) 3 Cal.4th 1088, 1107; People v. Valencia (2008) 43 Cal.4th 268, 281-282.) Walker cites the prosecutor's statement: "So is Detective Willis a dirty cop[?] Well, I'm not going to get up here and I can't tell you, um, you know, my feelings about that. That's not evidence. What you have to do is look at the actual evidence." She argues the prosecutor clearly implied that, in his personal opinion, Willis was not a dirty cop and this implied argument was tantamount to vouching.
We are not persuaded. The prosecutor said he had "feelings about" the suggestion that Willis was a dirty cop, not that he had information about that matter. While the comment was not entirely proper, in context it could not have seriously prejudiced Walker. The prosecutor immediately advised the jury that his feelings were not evidence and they should consider only "actual evidence" in assessing Willis's credibility. He then argued Willis was credible largely by reference to the relevant jury instruction. Moreover, defense counsel began his closing argument by reminding the jury that the arguments of counsel are not evidence, a principle also incorporated in the court's instructions to the jury. When assessed in the totality of trial record, we conclude the prosecutor's comments did not render the trial fundamentally unfair and were not deceptive or reprehensible, particularly in light of the fact that Walker's aiding and abetting liability was well-established by her own testimony.
4. Perjury Comment
Walker argues it was improper for the prosecutor to argue a "false dichotomy" in telling the jury either Walker or Willis was lying, and the jury could only believe her testimony if it concluded Willis perjured himself on the witness stand. Walker insists the witnesses' statements were not diametrically opposed, and simple misrecollection could have explained the differences. We conclude the prosecutor's comments were not misconduct.
Walker argues that several statements in the prosecution's closing argument were misconduct. (1) "So what does it boil down to? It boils down to the two statements. Do you believe Detective Willis and how he testified. Do you trust the statement that was played for you in court. Or, do you believe Ms. Walker." (2) "You had the chance to judge [Willis's] credibility to find consistencies in his testimony, to see if he would be the type of person that would go up there and commit perjury to you, to see if he would be the type of person that would be a dirty cop, that would try to bribe a criminal defendant into a false confession." (3) "That's your choice. [¶] Do you believe [Walker] in her statement that doesn't make any sense, or do you believe Detective Willis? Do you believe Detective Willis? That's what it boils down to, Ladies and Gentlemen. Thank you."
Walker relies on federal authority holding it is misconduct for a prosecutor in summation to make "statements to the effect that, if the defendant is innocent, government agents must be lying." (U.S. v. Richter (2d Cir. 1987) 826 F.2d 206, 209; U.S. v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1224.) First, "[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts." (People v. Zapien (1993) 4 Cal.4th 929, 989.) Second, the focus in both federal cases was on a slightly different issue—whether it is misconduct to ask a defendant if prosecution witnesses offering testimony in conflict with that of the defendant are "lying." Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper because "[d]eterminations of credibility are for the jury, . . . not for witnesses." (Richter, at p. 208; see Sanchez, at pp. 1219-1220.) " 'The courts in these cases explain that these questions infringe on the jury's right to make credibility determinations [citations], or that the questions are misleading because they suggest that the only explanation for the discrepancy between defendant's testimony and the other witness's testimony is that one of them is lying [citations]. Moreover, the questions might be considered misleading or calling for a conclusion in that they suggest that the defendant can know what another witness was thinking.' " (People v. Zambrano (2004) 124 Cal.App.4th 228, 239.) Unlike the federal courts, California recognizes no categorical rule that such questions are improper per se, instead requiring scrutiny of the questioning in context. (People v. Chatman (2006) 38 Cal.4th 344, 381-382.)
In any event, the misconduct alleged here is not improper "was he lying" cross-examination, but statements made by the prosecution in summation regarding Willis's credibility. While federal law appears to categorically prohibit prosecutorial argument in summation that acquittal would be tantamount to finding testifying officers guilty of perjury (see, e.g., U.S. v. Richter, supra, 826 F.2d at pp. 209-210 ["patently misleading to argue that the resolution of [an] issue hinges upon the veracity of the FBI agents"]), we are aware of no California case adopting the federal rule and Walker cites none. Our Supreme Court has found similar comments to be "fair comment on the evidence." (People v. Dykes (2009) 46 Cal.4th 731, 774 ["[i]f you believe [defendant], Sergeant Chenault is lying, risking his career and everything it stands for, to somehow frame this man"], citing People v. Chatman, supra, 38 Cal.4th at pp. 381-383.)
Here, Walker testified that Willis made an agreement to not arrest Piazza if she took full responsibility for drugs found in the master bedroom. Willis flatly denied making such an agreement. Despite defense counsel's insistence that "it doesn't necessarily have to be that you think Officer Willis is lying to you," there is no other reasonable explanation for the stark contrast in the testimony. None of the defense arguments questioning Willis's credibility suggested he was mistaken rather than dishonest. Therefore, it was fair comment in this case for the prosecutor to argue that to believe Walker's testimony the jury would have to find Willis deliberately lied. Furthermore, the jurors were instructed that they were the sole judges of witness credibility and of the weight to be given to each witness's testimony.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.