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November 29, 2010


Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge; Thomas Goethals, Judge. Affirmed in part and reversed in part. (Super. Ct. No. 08SF0007)

The opinion of the court was delivered by: Ikola, J.

P. v Lewis CA4/3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


A jury convicted defendant Kristina Ann Lewis of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and a syringe (Bus. & Prof. Code, § 4140). Defendant admitted she suffered a prior conviction for which she served a prison term. (Pen. Code, § 667.5, subd. (b).) The court suspended imposition of sentence and placed defendant on probation for three years. On appeal defendant contends the prosecutor committed misconduct and the court improperly found true the prior conviction allegation. Defendant is correct on this latter contention; we reverse the true finding of a prior conviction and remand the matter to the trial court. In all other respects, we affirm the judgment.


On the morning of December 31, 2007, Deputy Lawrence Hahn responded to a report of a structure fire at a house. In the garage, he spoke to Michael Brown and Leisol Garcilazo. Garcilazo appeared to be under the influence of a stimulant like methamphetamine or cocaine.

Hahn entered the house, which was still smoky, and saw defendant. He asked her if she had any identification. Defendant said it was in an upstairs bedroom. Unlike Garcilazo, defendant did not appear to be under the influence of a stimulant. When Hahn asked defendant if she lived in the house, she replied she had stayed there off and on for about one year with Brown and Garcilazo.

Hahn and defendant went upstairs to a bedroom defendant said she shared with Garcilazo. On the floor was an orange cap Hahn recognized as belonging to a hypodermic needle. The body of a needle was plainly visible on a nightstand. A plunger was found in a laundry basket.

Hahn asked defendant if there were any more needles in the house. She replied there might be, but they were old and belonged to her, and she "was trying to clean up."

A Jack and Jill bathroom adjoined the subject bedroom and another bedroom. In a bathroom drawer was a baggie containing one gram of methamphetamine (a useable amount) and some makeup, toothbrushes, and feminine napkins. Defendant stated the methamphetamine belonged to her and Garcilazo and they had both used it the previous night.

Hahn arrested defendant and Garcilazo and took them to the police station. After being advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436, defendant said she had tried to ingest the methamphetamine by mixing it in coffee or juice when she and Garcilazo used it the previous night, and Garcilazo had smoked methamphetamine in the bathroom that morning. She said she did not want Garcilazo "to get in trouble for methamphetamine."

Hahn did not record the conversation because he lacked an accessible recording device. He did not state in his police report that defendant admitted to possessing methamphetamine. But Hahn's police report did include defendant's statements made at the police station about having tried to ingest the methamphetamine when she and Garcilazo had used it the previous night. Hahn destroyed his handwritten notes after preparing his report.


Michael Brown, the owner of the house, testified he had no roommates on December 31, 2007. On that date, a New Year's Eve party attended by 10 to 15 people took place at the house. Defendant had the key to Brown's house so the party could start while Brown was en route home from Houston. Someone at the party accidentally set a box on fire in the garage. Brown was sick and slept through the party until he was awakened by the fire alarm. He did not tolerate drugs in his home.

According to Brown, defendant was never a permanent resident at Brown's home. She rarely spent the night. When she did, she slept in the bedroom in question. She sometimes left personal possessions there. Brown was still friends with defendant and had talked with her about the case.

Three or four years earlier, a troubled young woman (not defendant or Garcilazo) had lived in Brown's house, off and on, for years. He had made her leave the home when he discovered she had brought drugs into his home. Since then, he had not removed her possessions from his house. Many of the items in the subject bedroom and bathroom belonged to this woman.


The Prosecutor Did Not Commit Misconduct

Defendant asserts the prosecutor, during rebuttal argument, made remarks (1) impugning defense counsel's credibility and integrity, and (2) vouching for Hahn's credibility. Defendant contends the cumulative effect of the errors violated her constitutional rights and no objection or admonition would have cured the harm.

"'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."'"'" (People v. Hill (1998) 17 Cal.4th 800, 819.) "[A] determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)

Prosecutors "are held to an elevated standard of conduct" (People v. Hill, supra, 17 Cal.4th at p. 819), "higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state" (id. at p. 820). "'"[I]t is [a prosecutor's] sworn duty to see that the defendant has a fair and impartial trial . . . ."'" (People v. Bryden (1998) 63 Cal.App.4th 159, 182.) While a prosecutor "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (Berger v. United States (1935) 295 U.S. 78, 88.)

Accordingly, a prosecutor is subject to limitations on the scope of closing argument and the method of presenting it. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 571, p. 815.) "It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]." (People v. Bemore (2000) 22 Cal.4th 809, 846.) "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] 'An attack on the defendant's attorney can be [as] seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.'" (People v. Hill, supra, 17 Cal.4th at p. 832.) Our Supreme Court has stated, "If there is a reasonable likelihood that the jury would understand the prosecutor's statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established." (People v. Cummings (1993) 4 Cal.4th 1233, 1302.)

"Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore, supra, 22 Cal.4th at p. 846.) "Arguments by the prosecutor that otherwise might be deemed improper do not constitute misconduct if they fall within the proper limits of rebuttal to the arguments of defense counsel." (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) "'"'[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.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience . . . .' [Citation.] 'A prosecutor may "vigorously argue his case and is not limited to 'Chesterfieldian politeness'" [citation], and he may "use appropriate epithets . . . ."'"'" (People v. Hill, supra, 17 Cal.4th at p. 819.) A "prosecutor may use vernacular [and] figures of speech . . . in presenting in the most persuasive form the contention that the evidence calls for a verdict of guilty." (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 589, p. 842.) He or she may make comments "aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally. . . . (E.g., [People v. Stitely (2005)] 35 Cal.4th 514, 559-560 [argument that jurors should avoid '"fall[ing] for"' defense counsel's '"ridiculous"' and '"outrageous"' attempt to allow defendant to '"walk" free' by claiming he was guilty only of second degree murder]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1216 . . . [argument that defense counsel was talking out of both sides of his mouth and that this was '"great lawyering"'] . . . .)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1155, disapproved on a different point by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.)

As to witnesses, 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. [Citations.] Nor is a prosecutor permitted 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.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971, disapproved on a different point by People v. Doolin, supra, 45 Cal.4th at p. 421 & fn. 22.)

"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct" (People v. Price (1991) 1 Cal.4th 324, 447) or if "an objection would have been futile" (People v. Arias (1996) 13 Cal.4th 92, 159).

Here, during closing argument, defense counsel argued the People could not prove the methamphetamine belonged to defendant. He pointed out someone else could have put the baggie in the bathroom drawer, such as Garcilazo (who was high the next morning, as compared to defendant who was not) or another guest at the New Year's Eve party. He asserted the police conducted a "sloppy" investigation, and failed to fingerprint the bag, test the needle for DNA, or record any statements. He theorized Hahn might have "a professional bias." He pointed out Hahn had destroyed his notes, failed to note in his police report that defendant confessed to possessing the methamphetamine, and might be confusing Garcilazo's confession for defendant's. Defense counsel noted Hahn was working an overtime shift on New Year's Eve and averred the officer did not have perfect recall of what happened that day. Defense counsel referred to CALCRIM No. 359 (corpus delicti), which states a "defendant may not be convicted of any crime based on her out-of-court statements alone" in the absence of "other evidence [which] shows the charged crime was committed." He asserted the only evidence in this case was "Hahn's testimony of what [defendant] said." He expressed his hope the jury would "send a message that if the D.A.'s office and the police are going to prosecute a case, they need to have real evidence."

In the prosecutor's rebuttal, she characterized defense counsel's remarks as "the 'burger combo' closing argument" because defense counsel argued the methamphetamine belonged to Garcilazo or "a phantom partygoer" or that Hahn was lying or mistaken. She argued that "gross misstatements of law and gross misstatements of facts . . . were introduced during the trial." She therefore sought to "clarify" the law for the jury: "Counsel has said that proof beyond a reasonable doubt requires something more than an officer's testimony." "That is not what the standard is." She then reread for the jurors the instruction on proof beyond a reasonable doubt, and stressed, "The evidence need not eliminate all possible doubt." She reminded the jurors they were not allowed to speculate and were to consider only the evidence, and continued: "The defense has told you that your duty here is to send a message to . . . the police and law enforcement. [¶] Talk about a gross misstatement of your duties as a jury." "Your duty here is to determine two things with respect to each count: Was a crime committed and was it the defendant that committed that crime?"

The prosecutor argued defense counsel had asked the jurors to speculate about: whether it is easy to test DNA on a plastic syringe; whether defendant would have displayed effects of methamphetamine use the morning after using it; and why Hahn failed to record defendant's confession. She argued defense counsel had suggested to the jurors that they "break [their] oath as jurors and engage in speculation," and cautioned the jury about "the power of suggestion that you break your oath as jurors." She also argued it was unlikely Hahn would perjure himself and "risk his career" for a simple possession of methamphetamine case.

Defendant claims the prosecutor, with these remarks, improperly attacked defense counsel's integrity and suggested he had urged the jurors to violate their oath not to speculate.

We find no prejudicial misconduct here. Defense counsel failed to object to the prosecutor's argument, and in any case, the prosecutor's comments were nearly all within the proper limits of rebuttal argument. The prosecutor's references to defense counsel's alleged "'burger combo'" defense, "gross" misstatements of law, and invitations to "speculate" did not rise to the level of misconduct under either federal or state standards. That is, the argument was not "'so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process.'" (People v. Espinoza (1992) 3 Cal.4th 806, 820.) Nor, having reviewed the prosecutor's entire argument, do we find that she used "'"deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" (Ibid.) Viewed in context, the comments were not personal attacks on defense counsel and his integrity, but were a fair rebuttal to doubts defense counsel had tried to cast on the evidence (or lack thereof) and Hahn's credibility. (People v. Medina (1995) 11 Cal.4th 694, 759.) The prosecutor urged the jurors to consider the evidence rather than to speculate. While the prosecutor's stray comment, that Hahn would not risk his career by committing perjury, improperly referenced matter outside the record, it was an isolated comment, not the focus of her argument.*fn1 The prosecutor did not place the prestige of her office behind Hahn's veracity or the strength of the charges against defendant. The case upon which defendant relies, People v. Alvarado (2006) 141 Cal.App.4th 1577, is inapt. There, a majority held that the prosecutor "impermissibly invited the jury to convict [defendant] based on her opinion that he was guilty and on the prestige of her office by responding: 'I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred. [¶] The defendant charged is the person who did it.'" Here, the prosecutor made no assurances of defendant's guilt.

The Court's True Finding on Defendant's Prior Conviction Must Be Reversed

As the Attorney General acknowledges, the court failed to advise defendant of her constitutional rights before accepting her pretrial admission that she suffered a prior felony conviction, nor does the record otherwise reflect her admission was knowing and voluntary. As a result, the court's true finding on the prior conviction allegation must be reversed. (People v. Mosby (2004) 33 Cal.4th 353, 359-360; Boykin v. Alabama (1969) 395 U.S. 238, 242-243; In re Tahl (1969) 1 Cal.3d 122, 132, superseded by statute on another ground as discussed in People v. Carty (2003) 110 Cal.App.4th 1518, 1523-1524.)


The trial court's true finding on defendant's prior felony conviction is reversed. The matter is remanded for further proceedings on her prior conviction allegation, and for resentencing, if necessary. In all other respects, the judgment is affirmed.


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