IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
September 29, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
IVY JAMES MAGEE, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF110799A)
The opinion of the court was delivered by: Duarte , J.
P. v. Magee
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Ivy James Magee of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and being a felon in possession of a gun and ammunition (Pen. Code, §§ 12021, subd. (a)(1); 12316, subd. (b)(1)), and also sustained allegations that defendant was armed (Pen. Code, § 12022, subd. (c)) and had suffered a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)). On August 10, 2009, the trial court sentenced defendant to a total of eight years in state prison, awarding conduct credit of 100 days for defendant's 201 days of presentence custody.*fn1
On appeal, defendant contends that the trial court erred in denying his motion to compel disclosure of the identity of the confidential informant, who provided some of the particulars in support of the search warrant of defendant's residence. He also asserts the record reflects prosecutorial misconduct regarding the reasonable doubt standard, to which his trial attorney did not effectively respond.
As we will explain, there was no error in the denial of the motion to compel. Further, although various comments made by the People to the jury concerning reasonable doubt were ill-advised, there was no prejudicial misconduct and no error.
On our own motion, we find that defendant is entitled to additional conduct credit for his time in presentence custody. We affirm the judgment as modified.
FACTUAL*fn2 AND PROCEDURAL HISTORY
The Motion to Compel
Before trial, defendant moved to compel disclosure of the confidential informant as a participant or material witness. He based the motion solely on the affidavit filed in support of the search warrant of his residence, because it showed the informant purchased the contraband from a person other than defendant. The pertinent details from the affidavit follow.
Citizens had reported suspicious activity at a Stockton address to community housing officers, who had also observed "short stay traffic" (people coming and going) at the apartment's doorway. They relayed this information to the detective applying for the search warrant, who determined that defendant and his brother, Andre Johnson, listed the address as their residence.
The confidential informant had been assisting the police in investigations over the course of the previous year, and had given the detective and others accurate information about the involvement of at least four people in the use or sales of contraband. The detective summarized two recorded transactions between the informant and the occupants of the residence in January 2009. Each time, the informant knocked on the door and conversed with defendant's brother. The first time, the brother closed the door, then returned with the contraband to complete the transaction. The second time, the informant and the brother only discussed a future transaction at the doorway.
The police report attached to the return to the warrant attested to the presence of contraband, cash in excess of $1200, and ammunition in the master bedroom along with documentation in defendant's name. Defendant was the only resident present, and alerted the police to the presence of a gun in a kitchen drawer (where the police found additional ammunition).
At the hearing, defense counsel argued the informant was relevant to a claim that defendant's brother was the person engaged in sales of contraband. The People agreed that the drugs had been purchased from defendant's brother, not defendant, and pointed out that the charges were not based on the sales to the informant, which was the only subject about which the informant could testify from firsthand knowledge. Moreover, all the contraband and cash, along with some of the other evidence of sales, were in defendant's bedroom, whereas the police did not find anything in what defendant identified as his brother's bedroom. The trial court concluded the informant was not a percipient witness on the issue of who had possessed the contraband for sale, and the evidence from the search otherwise did not exclude at least defendant's joint possession of the contraband for sale.
Voir Dire on Reasonable Doubt
Defendant identifies several instances in the People's voir dire that he contends misstate the nature of the burden of proof, focusing in particular on colloquies with six members of the panel*fn3 (three of whom later served on the jury).
Before these cited exchanges with the panel members, the prosecutor reiterated that his burden of proof was "beyond a reasonable doubt," on which the court would later instruct the jury, but added this did not equal "100 percent" certainty. The first prospective juror indicated a preference for "100 percent" certainty. Juror No. One indicated a satisfaction with evidence "somewhat proving" guilt. The prosecutor then asked for a show of hands as to who agreed with 100 percent certainty or with "some doubt." Juror No. Six put himself "on the side of" Juror No. One. A second potential juror stated that "if there's any doubt . . . you shouldn't convict." Juror No. Nine stated, "if there's still like this fraction of a doubt, you can still probably convict somebody" (the prosecutor affirming that was the law), though unable to assign an exact percentage. The third prospective juror made reference to a coin flip.
At this point, the prosecutor asked various panel members what verdict they would return if he proved his case beyond a reasonable doubt. A third prospective juror agreed with the prosecutor that "without a doubt" was a higher burden than necessary under the standard of reasonable doubt and would thus vote guilty, as would Juror No. Nine. The first prospective juror "probably" would vote guilty. The remaining members of the panel indicated they would return guilty verdicts (one expressly stating that "small gray areas" were acceptable) except for the second prospective juror (who adhered to his no doubt standard) and an additional prospective juror who indicated the need for 100 percent certainty.
In the course of the court's subsequent discussion with the jurors about whether they could follow the law regardless of any personal beliefs, the second prospective juror and yet another prospective juror both indicated that they could not set aside their desire for absolute certainty despite what they had heard was the law on reasonable doubt. The court explained that it was up to each juror to decide whether their doubt was reasonable based on the evidence heard, "or did some alien come down and do it," without assigning a particular percentage, and that the arguments of counsel did not otherwise establish the law in the case with respect to the definition of reasonable doubt. At the outset of trial, the court read the pattern instructions about following definitions that the court provided, the definition of reasonable doubt, and the comments of counsel not constituting evidence.
During his closing argument, the prosecutor referred to the voir dire on the previous day, and the court's "preview" of the definition of reasonable doubt in the instruction at the outset of the case. He reiterated that he did not need to prove his case beyond all doubt, because jurors could still have "some" doubt and find defendant guilty. He alluded to their certainty by analogy that their refrigerators would still be in their homes when they returned that evening.
Motion to Compel
The prosecution must disclose the identity of an informant or dismiss the charges only where a defendant satisfies his burden of producing some evidence that there is a reasonable possibility of the informant providing exculpatory evidence. (People v. Lawley (2002) 27 Cal.4th 102, 159.) In order to trigger any inquiry in camera on the substance of any potential testimony from an informant as a percipient witness, a defendant must make a prima facie showing of this reasonable possibility on something more than allegations of "information and belief." (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152-1153.) We review the trial court's ruling for an abuse of discretion. (Davis v. Superior Court (2010) 186 Cal.App.4th 1272, 1277.)
Although defendant asserts that there is a reasonable possibility the informant could have testified about conditions inside the residence that would provide exculpatory evidence on the issue of possession, the record shows no support whatsoever for this assertion. The affidavit, as described ante, clearly indicates the transaction took place at the threshold of the apartment. The informant was never inside the apartment, nor is there any evidence that the informant had previous familiarity with defendant or his brother (the informant not having brought the residence to the attention of the police). Absent anything else in the affidavit from which we could plausibly infer knowledge of the circumstances attendant to possession of the contraband, the informant's testimony about the person selling contraband from a residence (or the transaction itself) simply does not present as relevant to, let alone present as exculpatory information regarding, a prosecution for possession for sale.
This crucial distinction renders defendant's authority inapposite, and moots his criticism of People v. Lizarraga (1990) 219 Cal.App.3d 476 (Lizarraga), which upheld a refusal to disclose the informant's identity because the court did not believe there could be exculpatory evidence of possession, even though the informant had apparently been inside the residence (Lizarraga, supra, 219 Cal.App.3d at pp. 479, 483). Here, there was no error.
Defendant asserts that there was a violation of due process through a "dramatic lowering" of the burden of proof created by the People's comments, made during the voir dire process, to prospective jurors regarding reasonable doubt. While defendant acknowledges that trial counsel did not raise any contemporaneous objection (nor request any admonition), he argues the applicability of settled exceptions to the resulting forfeiture of the issue, including ineffective assistance of trial counsel.
A failure to object and request an admonition in response to purported prosecutorial misconduct forfeits the issue for purposes of appeal. (People v. Panah (2005) 35 Cal.4th 395, 462.) We are obliged to grant relief from a forfeiture only where objections or admonitions would have been futile or the misconduct's nature was incurable, which a defendant must establish affirmatively rather than through a "ritual incantation." (Ibid.) We do not find that either of these criteria is present. We also decline to exercise our discretion to reach a forfeited issue (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 584, fn. 2, 589), as we do not discern any miscarriage of justice resulting from the forfeited issue because the trial court's remarks and pattern instructions cured any possible misconduct.
As for the claim of ineffective assistance, the failure to object to prosecutorial misconduct rarely provides the basis for a successful claim on direct appeal. (People v. Lopez (2008) 42 Cal.4th 960, 966.) A defendant must craft a persuasive argument of the manner in which defense counsel fell below professional norms at trial. (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.) Here, we are not persuaded. Accordingly, we confine ourselves to the observation that (for purposes of direct appeal) we believe a reasonable attorney could have taken the same view of the asserted misconduct as we do, and believed it did not so seriously distort the prosecution's burden*fn4 that he needed to take any remedial action in light of the court's comments and the pattern instructions. (People v. Pope (1979) 23 Cal.3d 412, 425.)
The Supreme Court has granted review of our decision in People v. Brown (2010) 182 Cal.App.4th 1354 (review granted June 9, 2010, S181963) (Brown) to resolve a split in authority*fn5 over the retroactivity of amendments to provisions of Penal Code section 4019 that took effect in January 2010 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50 [former Pen. Code, § 4019]), which had provided for "two-for-two" conduct credit for presentence custody. Our March 2010 Miscellaneous Order (No. 2010-02) deemed this issue to be raised in pending appeals without further briefing. For similar policy reasons, we deem defendant to have raised the analogous issue regarding amendments to Penal Code section 2933 (section 2933) that went into effect in September 2010, providing for "one-for-one" conduct credit for qualifying defendants sentenced to prison. (Stats. 2010, ch. 426, §§ 1, 5.)
We conclude for the reasons expressed in Brown that both the January 2010 amendments to former Penal Code section 4019 and the September 2010 amendments to section 2933 apply to defendant's pending appeal because neither provides that they should have only prospective effect. (Cf. In re Estrada (1965) 63 Cal.2d 740, 745 [amendment lessening punishment for crime applies to acts committed before passage, provided judgment not final]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [both applying Estrada to amendments that involved custody credits].)*fn6
It appears from the information and probation report that defendant does not have any convictions for either a "serious" or violent felony (Pen. Code, §§ 667.5, subd. (c); 1192.7, subd. (c)), or is subject to registration as a sex offender (Pen. Code, § 290). He is thus entitled to conduct credit equal to his custody credit. We will modify the judgment accordingly, to add one additional day of conduct credit for a total of 201 days, and direct the trial court to prepare an amended abstract of judgment.
The judgment is modified to award defendant 201 days of conduct credit. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: BLEASE , Acting P. J. NICHOLSON , J.