Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR179318.
Kline, P.J.
A jury found Sean Edward White guilty of unlawfully transporting cocaine base (count 1; Health & Saf. Code, § 11352, subd. (a)), and possessing the drug for sale (count 2; Health & Saf. Code, § 11351.5), and the court, in bifurcated proceedings, found true three alleged prior prison-term convictions (Pen. Code, § 667.5, subd. (b)). Sentenced to an aggregate unstayed prison term of seven years, White appeals, claiming misconduct by the prosecutor in jury argument. We affirm the judgment.
BACKGROUND
Both counts arise from the discovery of 40 rocks of cocaine in one of White’s shoes after he was stopped in a Pontiac Grand Prix by Officers Joshua Caitham and Robert Knight near 9:00 p.m. on June 17, 2005. The officers, who had four and one-half and six and one-half years of experience with the Vallejo Police Department, were on marked patrol together and first saw the Pontiac going too fast on a two-lane residential street. They followed and caught up with it as it came up to a double-parked van that was evidently dropping off a passenger. The Pontiac went around the van, into the opposing traffic lane, which was unsafe there, at the blind crest of a hill. The officers did a traffic stop of the Pontiac and routinely radioed in its license plate number and, later, White’s name. Neither officer had met White before.
White was cooperative and produced his license and papers for Caitham as Knight went to the passenger side. The car was a rental, and White seemed nervous, his hands shaking and voice quivering. He said he had no weapons and readily consented to the car being searched. A radio report soon apprised the officers of a Colorado warrant out for White, and they detained him in handcuffs, after a pat search for weapons. Officer Knight noticed a smell of burnt marijuana coming from White and the car, and when he mentioned the smell to White, White said his wife “indulge[d]” in using marijuana in the car but that he did not use it himself and had none on him. Still very cooperative, he invited the officers to search him and the car. He was kept seated on the curb as Knight searched the car. Knight found no contraband, just the odor and some ashtray residue with the odor.
White’s demeanor turned from cooperative to uncooperative as soon as Caitham asked him to remove his shoes. He refused and said they could do that at “the station.” Caitham removed White’s right shoe and found nothing in it. Then when he went for the left shoe, White said, “I got something in my shoe.” The officer removed it and, in the heel portion, found a baggie holding 40 individually wrapped rocks of what both officers suspected was cocaine base. They arrested White for possessing and transporting it.
Several of the rocks later tested between 0.23 and 0.33 grams of cocaine, with a total weight of 10.48 grams for all 40. Expert testimony from a third officer, who had not been at the scene, was that the rocks were possessed for resale, not personal use, consisted of about 160 dosages or “hits,” and had a combined street value of about $800.
White testified, conceding felony convictions in 1995 and 1997 for crimes of moral turpitude. His account mostly tracked the officers’ except that he claimed that they planted the drugs and that he resisted being searched only after they tried to unbuckle his pants. He was nervous, he said, because his brother had been shot by Richmond police, but he conceded that there was no history of animosity with these officers. He claimed that they came up with the bag of cocaine some 30 to 40 seconds after removing his second shoe, and that he did not see what they were doing at that point.
In rebuttal testimony, Knight denied that they asked to search White’s pants or planted the drugs on him, and said the discovery of the drugs was “[i]nstantaneous” upon removal of the left shoe.
Defense counsel elicited from Knight that, after White’s arrest, Knight, who was a patrol officer at the time, referred the matter to two narcotics task force detectives, and that Knight had since been assigned to a crime suppression unit. Counsel argued to the jury, in support of White’s drug-planting claim, that the officers had arbitrarily gone after her client—“two white cops” stopping a “single black male” in a nice car—and that the drug planting and the one officer’s reassignment to a “special unit” were related.
DISCUSSION
White’s sole contention is that prosecutor Lawrence Kuo prejudicially vouched for the credibility of Officers Caitham and Knight by telling jurors that the officers risked losing their jobs if they lied. We will find this issue forfeited by lack of proper objection, but White’s backup claim of ineffective assistance of trial counsel requires exploring the applicable federal and state decisional law.
Facts. Jury argument naturally focused on White’s claim that the officers planted rock cocaine on him and whether it was White, or the officers, who lied about this on the stand. White complains of two parts of Kuo’s closing argument, first where Kuo urged: “Basically, what the defense would ask you to believe is that Officer Knight and Officer Caitham, a police officer for four years, Officer Knight for six and a half years, that these officers would basically throw away their careers, face criminal charges, possibly to go prison, for planting evidence; basically, destroy their lives over Mr. White, a person that they had not even met till June 17, 2005, of that night.” Defense counsel Nancy Dillon did not object to this but later raised three objections of “[o]utside the scope” when Kuo argued that, if these were actually “rogue” officers, then the jury would expect to see “evidence” of that beyond White’s own testimony. In the second challenged remarks, Kuo added, just before defense argument, “I mean, it’s just—it’s just not reasonable to believe that two officers would come in Court, basically throw away their lives, their careers, over a person they hadn’t met before, okay?” No defense objection whatsoever was raised after those remarks.
“[Kuo]: Now, let me address a couple of things that you did hear in regards to this. This case happened back in June 2005. It’s been almost a year; we’re in the middle of May now. If Officer[] Caitham and Officer[] Knight, if they were actually rogue police officers, bad police officers, wouldn’t you want to see evidence of that? Wouldn’t you want to have evidence presented of that? Have something?
Federal precedent. White relies on U.S. v. Combs (9th Cir. 2004) 379 F.3d 564 (Combs), where similar remarks were held to be error compounding error from improper cross-examination. The initial error, under U.S. v. Geston (9th Cir. 2002) 299 F.3d 1130 (Geston), was that the prosecutor had forced the defendant to state on cross-examination that a prosecution witness, an FBI special agent, was lying, error that Combs held was exacerbated by the trial judge twice reprimanding the defendant, in front of the jury, for trying to avoid answering the question. (Combs, at pp. 567, 572-574.) That error “alone” was reversible under Geston. (Combs, at p. 574.) However, “[u]nlike in Geston, the prosecutor [had] compounded the improper cross-examination by arguing that in order to acquit Combs, the jury had to believe that agent Bailey risked losing his job by lying on the stand”—impermissible vouching that “further compromised” Combs’s due process rights. (Ibid.) The remarks had been provoked by defense argument that the agents’ jobs were not “ ‘on the line’ ” but that they were unlikely to get promotions if they came up with nothing after an 18-month drug lab investigation. (Id. at pp. 567-568.) To this the prosecutor responded: “If you believe the defendant’s version of events, you have to believe that Special Agent Kent Bailey walked up to that witness stand, swore to tell you the truth, and perjured himself. [¶] You have to believe that Special Agent Kent Bailey flushed his ten-year career down the toilet. For what? . . . Why would he do that? That makes no sense. Special Agent Bailey may not get fired for participating in a search warrant where there was no meth lab, but you can be darn sure he would get fired for perjuring himself.” (Id. at p. 568, italics added.) The opinion offers little analysis but cites authority that prosecutors cannot use personal assurances of veracity, or information outside the evidence, to support the credibility of witnesses. (Id. at p. 574.) Whether the length of the agents’ careers was in evidence is not stated.
Another precedent is U.S. v. Martinez (6th Cir. 1992) 981 F.2d 867 (Martinez), where a prosecutor asked a jury, as to a male detective who had made undercover drug buys from a female defendant (id. at p. 869), “ ‘Is there something that’s particularly significant or important about her that he would lie about, that he would risk his career, 18 years in the state police, to come in here and lie about that?’ ” (Id. at p. 871.) The opinion reasons that “there was no evidence before the court that [the detective] risked his eighteen-year career if he lied,” but that, since this was “an isolated misstatement,” any prejudice was neutralized by an instruction that lawyers’ statements and arguments were not evidence. (Ibid.) The same general instruction was given here. In Martinez, as in Combs, it does not appear from the opinion that the witness’s career length was in evidence. (See also U.S. v. Boyd (D.C. Cir. 1995) 54 F.3d 868, 870-872 [mention of job-loss risk was error, but not reversible, even combined with Combs-like error in cross-examination].)
State precedent. In California, our Supreme Court has generally summarized vouching in this manner: “Of course, a prosecutor is free to give his opinion on the state of the evidence, and in arguing his case to the jury, has wide latitude to comment on both its quality and the credibility of witnesses. [Citations.] It is misconduct, however, to suggest to the jury in arguing the veracity of a witness that the prosecutor has information undisclosed to the trier of fact bearing on the issue of credibility, veracity, or guilt. The danger in such remarks is that the jury will believe that inculpatory evidence, known only to the prosecution, has been withheld from them. [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 945-946 (Padilla).) A prosecutor is not allowed “to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)
In People v. Anderson (1990) 52 Cal.3d 453 (Anderson), that court found no error on facts very much like those before us. “At one point in her argument, the prosecutor remarked that ‘A law enforcement officer is no good as a witness if his credibility is in doubt,’ and in essence supported the credibility of the officers testifying in this case by noting that ‘a number of them . . . are old, experienced officers. They’ve got 15, 20, 22 years of experience on the force.’ The prosecutor expressed her doubt that any of them would ‘jeopardize’ his reputation by lying on the witness stand ‘just to convict one defendant.’ The prosecutor continued by noting that defendant, on the other hand, would only be testifying once, rather than a number of times, that he ‘doesn’t have anything else to lose,’ and ‘so what if you do catch him in a few lies?’ ” (Id. at p. 478.) The court held: “[T]he prosecutor limited her remarks to facts of record, namely, the years of experience of the officers involved, and her ‘vouching’ was clearly based on inferences reasonably drawn therefrom, rather than on her personal belief or knowledge. [Citation.] We find no improper prosecutorial vouching here.” (Id. at p. 479.)
More recently, the court confronted a claim of “vouching for the credibility of Michael White, the prosecution’s ballistics expert. . . . [T]he prosecutor insisted in his closing argument that, had he lied, [the expert] would have ‘risked his whole career of 17 years.’ Defendant contends that this remark was improper, relying on [Martinez, supra,] 981 F.2d 867, for that conclusion.” (Padilla, supra, 11 Cal.4th at p. 946.) Like Martinez, Padilla does not indicate that the length of the expert’s career was in evidence, but the court said: “It is true that in Martinez the United States Court of Appeals for the Sixth Circuit held a closely similar argument by a prosecutor (asking the jury why a state police officer would ‘risk his career, 18 years in the state police, to come in here and lie . . . .’) to be improper. Although we doubt that the argument was proper, we find no reasonable probability that defendant was prejudiced by the prosecutor’s argument in this case.” (Padilla, at p. 946.) Padilla does not mention its earlier decision in Anderson.
Forfeiture. “ ‘[A] defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion’—and on the same ground—‘he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.]” (People v. Ashmus (1991) 54 Cal.3d 932, 976.) White never made an objection or request below regarding the job-risk remarks he now challenges. He relies on his counsel’s “[o]utside the scope” objections, but this falls short. We accept for sake of argument that counsel’s phrasing might suffice to voice a misconduct claim in the vouching context, where the usual problem is the intimation of facts outside the trial evidence (Padilla, supra, 11 Cal.4th at pp. 945-946). However, defense counsel here was objecting to the prosecutor saying there was no evidence of “rogue officers” (fn. 1, ante); he was not objecting to the job-risk remarks of which White now complains.
White invokes the rule that an improperly phrased objection will be deemed sufficient if the court nevertheless understood the issue presented (People v. Scott (1978) 21 Cal.3d 284, 290), but again, while the court did sustain “[o]utside the scope” objections, those were directed at “rogue officer” remarks, not the ones he challenges now. Indeed, the parties do not mention it, but the record suggests that the “rogue officer” dispute would have been understood as concerning an unsuccessful pretrial Pitchess/Brady motion the defense had made (Pitchess v. Superior Court (1974) 11 Cal.3d 531; Brady v. Maryland (1963) 373 U.S. 83) to discover pertinent prior complaints against the officers. The court had reviewed those records in camera and determined that there was no discoverable information in that regard. Moreover, even if a job-risk misconduct objection had been made, White would still be barred from review by his failure to ask that the jury be admonished to disregard the remarks. (People v. Jablonski (2006) 37 Cal.4th 774, 836.) Nor would any prejudice have been beyond cure through a cautionary admonition.
White tries to rely on the “plain error” doctrine as applied to vouching in federal decisions (see, e.g., Combs, supra, 379 F.3d at pp. 568-569), but he overlooks the fact that this is a federal law doctrine that our state high court has rejected (People v. Benavides (2005) 35 Cal.4th 69, 115).
Ineffective assistance. There is no merit to White’s backup argument that trial counsel rendered ineffective assistance by not preserving the issue by a proper objection and request for admonition. First, lower federal court decisions are not binding on state courts, even on federal questions (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3), whereas state courts are, of course, bound by state high court authority (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). Anderson squarely held that argument like that made here was not improper vouching but, rather, based on inferences reasonably drawn from the evidence (Anderson, supra, 52 Cal.3d at pp. 478-479), and the lengths of the officers’ careers in this case were in evidence, as was the fact that neither officer had prior dealings with White. Padilla only expressed “doubt” about the propriety of job-risk remarks, and in a case where the length of the witness’s career may not have been in evidence. (Padilla, supra, 11 Cal.4th at p. 946.) Padilla never mentioned or disapproved Anderson and, as a dictum, could not even implicitly overrule Anderson (Trope v. Katz (1995) 11 Cal.4th 274, 287). Thus, defense counsel cannot be deemed incompetent for failing to object.
Even if the objection had been supported by state law, however, we could not find deficient performance unless the record affirmatively disclosed lack of a rational tactical purpose for not objecting (People v. Williams (1997) 16 Cal.4th 153, 215) or that there simply could be no satisfactory reason (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266). The record does not affirmatively show lack of a tactical purpose and, in fact, readily suggests one. Defense counsel may have welcomed the prosecutor’s reference to career motivations to highlight her own strategy of stressing that one of these officers, Knight, had brought White’s arrest to the attention of two task force officers and since secured a promotion to a crime suppression unit. This not only countered the job-risk argument but supported White’s claim that the drugs were planted on him.
DISPOSITION
The judgment is affirmed.
We concur:Haerle, J., Richman, J.
“Ms. Dillon: Objection. Outside the scope.
“The Court: Sustained.”
The court sustained two further objections of “[o]utside the scope,” each time again to argument that there was no evidence that these were “rogue officers.” Dillon stated “[m]isconduct” after the third favorable ruling, but did not press for a ruling on that ground, or seek an admonition.