P. v. Fuller
Filed 1/14/13 P.
v. Fuller CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MACK FULLER,
Defendant and Appellant.
B232379
(Los Angeles County
Super. Ct. No.
MA050496)
APPEAL
from a judgment of the Superior Court of
County. Christopher G.
Estes, Judge. Affirmed as modified.
John
Scott Cramer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback
II and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
A jury acquitted Mack Fuller on
charges of transportation of cocaine base
(Health & Saf. Code, § 11352, subd. (a)) and
(Health & Saf. Code, § 11351.5), but found him guilty of one count of
possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)), a
lesser included offense of the possession for sale charge. On appeal, Fuller contends the prosecutor
engaged in several instances of prejudicial misconduct, and that the trial
court erred in denying him probation pursuant to Proposition 36. Fuller also asserts, and the People concede,
that the abstract of judgment is incorrect.
In addition, Fuller requests that we review the in camera proceedings
the trial court conducted pursuant to Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We direct the trial court to modify the
abstract of judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On
September 22,
2010, two deputy sheriffs were in Lancaster, working
in an area notorious for gang activity and narcotics sales. The deputies had received information that
caused them to be on the lookout for a particular car. They saw the car and watched as it parked in
front of an apartment complex. Fuller
and a woman got out of the car. Fuller
was carrying a small white pharmacy bag with red and blue coloring. The woman had nothing in her hands. Fuller looked in the direction of the
deputies, then quickened his pace toward the apartment complex. Fuller and his companion went into the
complex. The two deputies followed, and
when they reached the outside security gate they told Fuller to stop and open
the gate. Fuller did not respond, but
instead continued to walk into apartment B.
The deputies gained entry into the complex three or four minutes
later. A man was standing outside
apartment B. He appeared to be under the
influence of narcotics. He told the
deputies he was on parole or probation and that he lived in apartment B. The deputies entered the apartment.
Three
people were inside apartment B: Fuller, his female companion, and another
woman. Fuller and his companion were
standing in front of a couch, and the other woman was sitting on a reclining
chair. Between the cushions of the
reclining chair, deputies found a glass pipe used to smoke cocaine base, and a
little bag containing rock cocaine. On
the floor next to the couch deputies found the paper bag they saw Fuller carry
into the apartment. Inside the bag was a
razor blade, a digital scale, and a piece of rock cocaine base. There was a white powdery residue on the
scale. The piece of rock cocaine base in
the pharmacy bag and the rock cocaine found in the chair appeared to have the
same coloring and consistency. In the
bedroom, deputies found small “nickel-sized, zip-lock bags that you would
commonly put narcotics in.†The deputies
never saw Fuller in the bedroom. The
small bags were not booked into evidence.
Neither Fuller
nor his companion appeared to be under the influence. When deputies searched Fuller, they found an
asthma inhaler in his pants pocket.
Inside the inhaler was a small piece of a grocery bag. Deputies additionally found a cell phone
attached to a case on Fuller’s belt. The
deputies saw an incoming text message on the phone that read: “My girl here and
she want 50. Call back now.†Fuller was interviewed twice after receiving
interviewing deputy he went to apartment B to meet a friend and he knew nothing
about any illegal items in the apartment.
During the second interview, he told the deputies his companion was not
involved with the cocaine, and he agreed to work with the deputies, in part
based on the condition that she be released.
Fuller told the deputies a friend gave him the cocaine base because
Fuller was having financial difficulties.
Fuller said he expected to sell the cocaine at apartment B.
The People
charged Fuller with one count of sale or transportation of cocaine base (Health
& Saf. Code, § 11352, subd. (a)), and one count of possession of cocaine
base for sale (Health & Saf. Code, § 11351.5.) The People alleged Fuller had suffered prior
felony convictions within the meaning of Health and Safety Code section
11370.2, subdivision (a). The People
further alleged Fuller’s sentence should be enhanced pursuant to Penal Code
section 667.5, and that he was on bail or released on his own recognizance at
the time of the offenses, within the meaning of Penal Code section 12022.1. Prior to trial, Fuller filed a motion seeking
Pitchess discovery. As to the two arresting deputies, Fuller
sought all complaints relating to fabrication of evidence, dishonesty, and
other matters bearing on credibility.
The trial court conducted an in camera
hearing and found no discoverable information.
At trial, one of
the arresting deputies testified that in his opinion, the rock cocaine found in
the pharmacy bag was intended for sale because it was far more than one person
could consume in one day, or a week. He
also testified that the packaging of the drugs, the scale, and the razor blade,
were all consistent with Fuller’s statement that he took the rock cocaine to
apartment B to sell it. The deputy
indicated the cocaine in the small bag found on the reclining chair had a
market value of between $10 and $20. On
cross-examination, the deputy testified Fuller did not have any money on him at
the time of the arrest. The other three
individuals had a total of $9.94 between them.
Fuller’s companion had thirty-five cents.
The other
arresting deputy similarly testified and opined a razor blade might be used to
cut pieces off a larger rock of cocaine to package it for sales. A scale would be used to weigh the narcotics
to be sold. The deputy further testified
the piece of grocery bag in Fuller’s asthma inhaler was “blocking the pathway
of the inhaler,†and the deputy thought it looked like there may have been rock
cocaine in the inhaler at one time.
On
cross-examination, both arresting deputies admitted the scale, baggies, and
razor blade were not tested for fingerprints.
They also admitted they did not book Fuller’s cell phone into
evidence. One of the deputies explained
he did not book the phone into evidence because Fuller said he would work with
them, and in order to do that he would need his cell phone to reach his
suppliers and others. The deputy
explained that the phone was put into “somebody’s property,†but he did not
know whose. On cross-examination he
testified that he had written in a supplemental report that he may have put the
phone in Fuller’s companion’s property.
The parties stipulated that Fuller knew what cocaine base or rock
cocaine was.
The jury found
Fuller not guilty on both counts, but concluded he was guilty of possession of
cocaine base as a lesser included offense of possession of cocaine base for
sale. The trial court found Fuller had
suffered three prior felony convictions within the meaning of Penal Code
section 667.5, subdivision (b), and further found true the on-bail allegation
under Penal Code section 12022.1. Fuller
requested probation under Proposition 36.
The trial court denied the request and sentenced Fuller to a total
prison term of six years.
DISCUSSION
I. No
Prejudicial Prosecutorial Misconduct
Fuller
argues the prosecutor engaged in three instances of prosecutorial misconduct
while delivering his closing argument.
We find no prejudicial error.
Comment on Fuller’s Failure to Call Potential Defense Witnesses
During
closing argument, defense counsel attempted to discredit the arresting
deputies’ testimony based on inconsistencies and what he characterized as
illogical statements. In his rebuttal
argument, the prosecutor responded:
“[Prosecutor]: The attorney for the
defendant lamented that you have the officers’ words regarding what occurred
there. [¶] Now, the attorney for the defendant knows,
and he has known for his ten years of being an attorney, that he has the same
subpoena power of the court to bring in any other witnesses to have them
testify in front of you as he wants, providing they’re relevant to the events.
[¶] And if Ms. Addison . . . and Mr. Green and Ms. Cavness had anything to say
that was contrary to what the defendant had to say about the events in question,
he could have brought them in under the power of the court—
[Defense counsel]: Your Honor, I
object.
[Prosecutor]: --under penalty of
arrest, and it didn’t happen.
The Court: Hold on.
[Defense counsel]: Shifting the
burden, your Honor.
The Court: Based on the arguments,
overruled.
[Prosecutor]: Yes, it’s not shifting
the burden of evidence. As counsel told
you in his opening statement, he doesn’t have to present a defense. This is not castigating the fact that he
didn’t present a defense. This is
pointing out that he asks you to disbelieve the witnesses who did testify under
oath under a speculation that other people would have testified somehow
differently, or the facts that were testified to you about by the deputies are
somehow not true. [¶] Again, if any of those three individuals could provide
any support for his allegations, he could have used the absolute power of the
court to bring them in. He chose not to,
hoping that the power of his argument would overcome the fact that they had nothing
to say that would contradict what the deputies talked about.
[Defense counsel]: Objection, your Honor. Misstates the evidence.
The Court: Ladies and gentlemen, again, you are the judges of the
facts in this case and you are to judge this case based on the evidence that
you received during the trial and the law that I have stated to you.â€
The prosecutor
subsequently argued: “The attorney for the defendant wants to say that you
can’t rely on the deputies again, but there was [sic] other people who were there and he didn’t bother to bring them
in if they had anything different to say.â€
On
appeal, Fuller contends the prosecutor’s comment about other potential defense
witnesses was misconduct because he referred to or relied on facts not in
evidence. This contention misses the
mark. The prosecutor did not identify
any facts or evidence he believed the potential defense witnesses would have
provided, had they been called. (Compare
People v. Gaines (1997) 54
Cal.App.4th 821, 824-825 with People v. Lewis
(2009) 46 Cal.4th 1255, 1302-1304; see also People v. Hall (2000) 82 Cal.App.4th 813, 817 [prosecutor’s
argument that defendant could have called a witness was proper; misconduct was
arguing to jury that the witness’s testimony would have replicated other
specific trial testimony in favor of the prosecution].) Instead, he commented on Fuller’s failure to
call logical defense witnesses in line with the defense theory of the
case. This is permissible. (People
v. Thomas (2012) 54 Cal.4th 908, 945 [not misconduct for prosecutor to
argue no witnesses came forward to provide alibi evidence for defendant];
565-566 [not misconduct for prosecutor to argue defendant did not present any
evidence suggesting anyone else committed the crime]; People v. Carter (2005) 36 Cal.4th 1215, 1266-1267 [not misconduct
for prosecutor to argue nothing prevented defendant from offering witnesses to
explain why defendant was in the car with property linking him to victims].)
The Prosecutor’s Demonstration of How One Might Cut Cocaine for Sale
The
defense argued Fuller did not have enough time after entering apartment B to
cut a small piece of cocaine off the larger rock, weigh it, package it, and
give it to the woman in the apartment.
engaged in a mock demonstration, in which he purported to go through the
motions of cutting off a piece of cocaine, weighing it, and putting it in a
baggie. Defense counsel objected that
the demonstration was not part of the evidence.
The court allowed the prosecutor to continue, but advised the jury:
“Again, ladies and gentlemen, this is the argument of the attorneys. Again, you are the judges of the facts, and
you’re to rely on the evidence that you heard during the course of this trial.â€
We
need not decide whether the prosecutor’s demonstration constituted
prosecutorial misconduct because it is clear that it was harmless. (People
v. Thomas (2012) 53 Cal.4th 771, 823.)
The trial court repeatedly instructed the jury that the lawyer’s
arguments were not evidence, including with respect to this very
demonstration. We presume the jury
followed the court’s instructions. (
1, 33; People v. Gray (2005) 37
Cal.4th 168, 217.) In addition, the issue
of the amount of time it would take to cut and package a piece of cocaine base
was only relevant to the issue of whether Fuller had the intent to sell the
narcotics. The jury acquitted Fuller on
the charges related to sale of cocaine base, thus we cannot conclude there was
any reasonable possibility the prosecutor’s demonstration affected the jury’s
determination. Even if the prosecutor
committed misconduct with the demonstration, we see no prejudice to Fuller.
Prosecutor’s Comments on Reasonable Doubt
In
the defense closing statement, counsel referred to reasonable doubt, arguing:
“You have to find beyond the exclusion of all reasonable doubt that what those
officers said is the truth, there’s no other reasonable explanation at all. He was the one that was selling the drugs
there.†Later, defense counsel similarly
argued to the jury: “You see, because you have to make sure that it’s beyond
the exclusion of all reasonable doubt.
There cannot be one reasonable interpretation in your mind in order to
find the defendant guilty.â€
In his rebuttal
argument, the prosecutor argued there was no indication the deputies lied on
the stand, then continued:
“So if you believe that they got up
there and perjured themselves for the purpose of getting this defendant, as if
there isn’t enough crime to deal with, then the defendant is not found guilty
beyond a reasonable doubt—not all reasonable doubt, whatever that standard
is. All reasonable doubt is so you can
forget the word ‘reasonable doubt’ and put ‘all’ in front of it. . . . The
standard is reasonable doubt. Because
words mean things. And when the attorney
for the defendant put in the word ‘all’ he wanted that to register with you and
mean something. It’s not the legal
standard. You will have the jury
instructions. I bring it up –
[Defense counsel]: Objection, your
Honor. Misstates the law.
Court: Again, ladies and gentlemen,
what the attorneys say now is not evidence.
It’s their interpretation of the evidence, and they’re arguing the facts
and the law to you. You are to rely on
the evidence you heard and law I read to you, which you will get in written
form.
[Prosecutor]: It’s reasonable
doubt. So if you believe they got up and
perjured themselves for the purpose of getting this defendant, then he’s not
guilty beyond a reasonable doubt.â€
Fuller
contends the prosecutor’s statements misstated the law and constituted
prejudicial misconduct. We
disagree. “ ‘To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show
a
jury understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] 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].’ †(People
v. Dykes (2009) 46 Cal.4th 731, 771-772.)
Although the prosecutor’s rebuttal statements about reasonable doubt may
not have been a model of clarity, he repeatedly emphasized the proper standard
was “reasonable doubt,†as it was described in the jury instructions.
Even if the
prosecutor misstated the law, any possible error was harmless under any
standard. “[W]e do not reverse a
defendant’s conviction because of prosecutorial misconduct unless it is
reasonably probable the result would have been more favorable to the defendant
in the absence of the misconduct.†(
Cal.App.4th 587, 635.) Here, the trial
court twice instructed the jury on the reasonable doubt standard, as a
pre-instruction before the jury was selected, and in the final jury
instructions. The court also repeatedly
instructed the jury that it was to rely only on the court’s instructions on the
law, not the attorney’s statements. We
presume the jury understood and followed the trial court’s instructions. (Ibid.) Moreover the jury’s verdict acquitting
defendant on both counts, and finding him guilty of only a lesser included
possession offense, strongly suggests the jury did not hold the prosecution to
a lesser burden of proof. (
1342, 1353.) There was no prejudicial
error.
II. The
Trial Court Properly Denied Proposition 36 Probation
Under
Proposition 36, a defendant convicted of a “nonviolent drug possession offenseâ€
must receive probation and diversion into a drug treatment program, unless one
of several exceptions applies. (Pen.
Code, § 1210.1, subds. (a)-(b); People v.
Harris (2009) 171 Cal.App.4th 1488, 1495.)
“ ‘Nonviolent drug possession offense,’ as defined in Proposition 36,
includes ‘the unlawful personal use, possession for personal use, or
transportation for personal use’ of specified controlled substances, including
cocaine base. (Pen. Code, § 1210, subd.
(a); see also Health & Saf. Code, § 11054, subd. (f)(1).) It excludes ‘the possession for sale’ of any
controlled substance. [Citation.]†(People
v. Dove (2004) 124 Cal.App.4th 1, 6 (Dove).)
We agree with
the courts that have concluded that even if the defendant is acquitted of
charges for transportation or possession for sale of narcotics, the court “is
not constitutionally precluded from determining by a preponderance of the
evidence . . . that a defendant’s transportation [or possession] of a
controlled substance was or was not for personal use within the meaning of
section 1210, subdivision (a) . . . .†(
cocaine base, but acquitted of possession for sale. As in this case, the jury found the defendant
guilty of the lesser included offense of simple possession of cocaine
base. (Dove, supra, 124 Cal.App.4th at p. 3.) The Dove
court noted that “a jury’s verdict will not necessarily determine whether
the defendant is eligible or ineligible†for Proposition 36 probation, and “the
defendant has the burden of proving that the possession or transportation was
for personal use.†(Id. at p. 10.) The reviewing
court will sustain the trial court’s finding regarding Proposition 36
eligibility “as long as it is supported by substantial
evidence.†(Ibid; see also People v.
Glasper (2003) 113 Cal.App.4th 1104, 1115 (Glasper) [Proposition 36 does not require jury to make a finding
beyond a reasonable doubt that substance was not possessed for personal use
before a court can find defendant ineligible for Proposition 36
probation].)
Although the
defendant in Dove was convicted of
transportation of cocaine base, the court’s reasoning is still applicable
here. The “acquittal on the charge of
possession for sale,†or for transportation of cocaine base, “did not bind the
trial court. The acquittal simply meant
the jury was not convinced beyond a reasonable doubt that the possession was
for sale. . . .[T]he trial court was free to redetermine the personal use issue
based on the preponderance of the evidence.â€
(Dove, at p. 11.) The Dove
court relied in part on U.S. v. Watts
(1997) 519 U.S. 148, 157, in which the High Court concluded “a jury’s verdict
of acquittal does not prevent the sentencing court from considering conduct
underlying the acquitted charge, so long as that conduct has been proven by a
preponderance of the evidence.â€
In this case,
the trial court’s finding that Fuller possessed the cocaine base for sale, and
was therefore ineligible for Proposition 36 probation, was supported by
substantial evidence. There was evidence
that Fuller got out of his car with a white bag in his hand, in a neighborhood
known for drug sales. When deputies
followed him into apartment B, they found the bag, and inside the bag was a
relatively large amount of cocaine base—more than a drug user could consume in
days or a week—a scale, and a razor blade.
Fuller told deputies he went to the apartment to sell the drugs. In addition, Fuller admitted he was going to
sell the cocaine. The trial court could
reasonably conclude based on a preponderance of the evidence that Fuller possessed
the cocaine base in order to sell it.
Although the jury was not convinced beyond a reasonable doubt that
Fuller possessed the drugs for sale, or that he transported the drugs, the jury
was applying a different standard than that applicable to the Proposition 36
eligibility determination. There was no
express jury finding that Fuller possessed the drugs for personal use. (See Harris,
supra, 171 Cal.App.4th at pp. 1497-1498.)
The trial court properly redetermined the personal use issue based on
the underlying conduct. (
1113; People v. Towne (2008) 44
Cal.4th 63, 84-88.)
III.
In
response to appellant’s request, we have reviewed the sealed record of the in
camera Pitchess hearing. We conclude the trial court properly
conducted the hearing and appropriately exercised its discretion in ruling that
no discoverable material existed. (
1209; People v. Gaines (2009) 46 Cal.4th 172, 180-181; People v. Mooc
(2001) 26 Cal.4th 1216, 1229.)
IV. Abstract
of Judgment
The
parties agree the abstract of judgment incorrectly indicates the jury found
Fuller guilty of possession for sale of cocaine base. We direct the trial court to correct the
abstract of judgment to reflect that Fuller was convicted only of possession of
cocaine base in violation of Health and Safety Code section 11350, subdivision
(a).
DISPOSITION
The trial court is directed to correct the
abstract of judgment as described above in section IV, and to forward copies to
the Department of Corrections. In all other respects, the judgment is
affirmed.
BIGELOW,
P. J.
I concur:
FLIER,
J.
RUBIN,
J. - CONCURRING
I concur in the
judgment.
RUBIN, J.
name="_ftn1" title="">[1] Miranda v. Arizona
(1966) 384 U.S. 436.
four minutes before the officers got in there.
[¶] So did he have enough time to
take that chunk and cut it off and put it on a scale and put it in a baggie,
and then give it to the lady on the couch? . . . . I mean, three or four
minutes, with the police right behind you?
Does that even make sense? I
mean, don’t lose your common sense please.â€
