Filed 6/21/12 P. v. Kerper CA5
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
GARY LEE KERPER,
Defendant and
Appellant.
F062329
(Super.
Ct. No. TF00541A)
APPEAL
from a judgment of the Superior Court of
Gregory
Marshall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office
of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
It was alleged in an information
filed June 23, 2010, that appellant, Gary Lee Kerper, committed
of sale (Health & Saf. Code, § 11378;
(§ 11364; count 2), a misdemeanor.
A jury convicted appellant on count 1 and acquitted him on count 2. In the midst of the trial, appellant moved to
dismiss the charges on grounds of the prosecution’s failure to preserve
exculpatory evidence. The court denied
the motion. In a separate proceeding,
the court found true an enhancement allegation that appellant had suffered a
prior section 11378 conviction (§ 11370.2, subd. (c)). The court imposed a prison sentence of four
years four months, consisting of 16 months on the substantive offense and three
years on the enhancement.
Appellant’s appointed appellate
counsel has filed an opening brief
which summarizes the pertinent facts, with citations to the record, raises no
issues, and asks that this court independently review the record. (People
v. Wende (1979) 25 Cal.3d 436.)
Appellant, apparently in response to this court’s invitation to submit
additional briefing, has submitted a brief in which he argues, as best we can
determine, as follows: The court erred
in denying appellant’s motion to dismiss the charges; the prosecutor committed
misconduct by misstating the evidence during closing argument; appellant was
denied his right to the effective assistance of counsel; the court committed
was insufficient to support his conviction.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On November 29, 2008, Kern County
Deputy Sheriff Keith Miller and other law enforcement personnel went to a house
in Taft to execute a search warrant. The
front door was slightly ajar and when Deputy Miller knocked, it opened. The deputy entered and saw several persons,
including appellant, inside. Deputy
Miller ordered appellant to lie on the floor, and the deputy and his colleagues
handcuffed appellant and the house’s other occupants and conducted a search of
the house.
The search
uncovered the following items: in the
kitchen, parts of plastic bags that Deputy Miller recognized as drug packaging
material; in the bathroom, a gram scale; and under a heater grate on the floor
near where appellant had been lying, a plastic baggie containing what was later
determined by chemical testing to be methamphetamine. The bag and its contents weighed 3.9
grams. The substance containing
methamphetamine inside the bag weighed 2.96 grams. A deputy conducted a search of appellant’s
person and found, in appellant’s left front pocket, a methamphetamine smoking
pipe.
After the
search was completed, appellant was transported to the Kern County Sheriff’s
Department (KCSD) Taft substation, where, after KCSD Deputy Jeffry Eveland
advised appellant of his rights under Miranda
v. Arizona (1966) 384 U.S. 436 and appellant agreed to
speak to the deputy, appellant stated the following. The methamphetamine found in the house
belonged to him. His price for an “eight
ball,†which is approximately three grams of methamphetamine, is $240. He would purchase one-half ounce for $550
and, after “step[ping] on it,†sell it for $960.
Deputy
Eveland opined that appellant possessed methamphetamine for purpose of sale,
rather than personal use, based on the quantity of methamphetamine, the scale,
the packaging materials and appellant’s statements.
The parties
stipulated that on November 29, 2008, appellant lived in the house where the
contraband was found.
Motion to Dismiss
Testimony
was taken at trial over the course of two days.
On the afternoon of the first day, defense counsel informed the court he
had been to the KCSD evidence room, and that the methamphetamine pipe was not
there. He moved for a dismissal of count
2. The prosecutor responded that
dismissal would be “premature†because he had not been given an opportunity to
locate the pipe. The court denied the
motion without prejudice. Defense
counsel then moved for an order directing the prosecution to produce the pipe
for trial. The prosecutor offered to
inquire as to the pipe’s whereabouts during the court’s next recess and the
court directed him to do so.
The next
morning, Deputy Eveland, called as a witness by the defense, testified to the
following. He was in charge of
“gathering evidence†in the instant case.
He learned the previous day that the pipe was not in the bag in the KCSD
evidence room where it had been placed.
The bag was “removed during a prior ... perusal by a previous
district attorney.†Deputy Eveland had
not had the “opportunity to look at the evidence log and contact every person
who has checked out evidence in this case[.]â€
He did not know where the pipe was.
Later that
morning, defense counsel presented an
oral motion “pursuant to Arizona v.
Youngblood [(1988) 488 U.S. 51 (Youngblood)]
and [California v.]
issue of the pipe .…†In an
argument apparently directed at the count 1 charge, he asserted that the pipe
constituted exculpatory evidence because in its absence, and in the absence of
any photograph of the pipe, he could not establish the size of the pipe and
therefore he was unable to make the following argument that the methamphetamine
found in the house was not his: If the
pipe was small enough to be placed under the grate, a person hiding
methamphetamine under the grate would have hidden the pipe in the same
place. Thus, the fact that the evidence
showed the pipe was found on appellant’s person and not under the grate cast
doubt on the prosecution’s claim that appellant placed the methamphetamine in
its hiding place, which in turn cast doubt on the claim that he was in
possession of the contraband.
Defense counsel also argued,
apparently with respect to the count 2 charge, that the pipe was exculpatory
because in the absence of the pipe he could not determine if there was
methamphetamine residue in it. If there
was no residue, he asserted, he could argue the pipe did not constitute
Finally, defense counsel argued
that the prosecution’s failure to preserve the pipe was an act of bad faith for
the following reason. At an earlier
point, before the current prosecutor had been assigned to the case, someone in
the office of the Kern County District Attorney’s (KCDA) office had “looked at
the documentation or looked at the evidence†and had determined that some
photographs were missing. At that point,
the KCDA’s office must have become aware the pipe was missing, yet did not
inform defense counsel, thus depriving the defense of information that “would
certainly [have] influence[d] negotiations.â€
The
prosecutor disputed the defense’s claim as to the exculpatory value of the
pipe, and, on the issue of bad faith, argued:
“[W]e just don’t know when this pipe came up missing. We don’t know whether anybody in my office
was aware the pipe was missing before me.
I had nothing in the file to indicate the pipe was missing.†Another attorney had represented appellant
prior to current defense counsel and, the prosecutor stated, “For all I know
she may have known about this.… We
simply don’t know.†A prosecutor
previously assigned to the case has in his possession some evidence—baggies and
photographs—but “he says he didn’t check out the pipe†and does not have
it.
The court
denied “the motion seeking dismissal of Count 2 or other appropriate
sanctions .…â€
DISCUSSION
Denial of Motion to Dismiss
Appellant
makes various complaints that relate to the missing methamphetamine pipe. Specifically, he argues the prosecutor should
have asked for a continuance in order to gain time to attempt to locate the
pipe; the prosecutor violated an order of the court by failing to find and
produce the pipe; and the prosecutor’s ignorance of the whereabouts of the pipe
constituted “bad faith.†Appellant also
argues that the pipe constituted exculpatory evidence and that because the
prosecution failed to produce it, appellant’s “rights to a fair trial and due
process were violated,†regardless of whether the prosecutor’s failure to
produce the pipe was “in[ad]vertent[]†or “intentional[].†All these arguments, as best we can
determine, amount to a challenge to the denial of appellant’s motion to dismiss
the charges.
At the
outset, we note that although defense
counsel, in presenting his oral motion, did not explicitly state that his
motion was directed at both charges, he presented argument directed at both
charges. It is apparent that the trial
court, however, was under the impression that appellant was seeking an order
dismissing count 2 only, and restricted its ruling to refusing to dismiss that
count. Defense counsel did not press for
a ruling as to count 1. Therefore,
appellant is precluded from obtaining appellate review of issues relating to
the court’s failure to dismiss count 1.
As noted in People v. Obie
(1974) 41 Cal.App.3d 744, in
which a trial court neglected to actually rule on a motion under Penal Code
section 995, “‘[w]here the court, through inadvertence or neglect, neither
rules nor reserves its ruling ... the party who objected must make some effort
to have the court actually rule.
If the point is not pressed and is forgotten, he may be deemed to have
waived or abandoned it, just as if he had failed to make the objection in the
first place.’†(Id. at p. 750, overruled on another ground in
120, fn. 4; accord, People v. Brewer
(2000) 81 Cal.App.4th 442, 459 [motion to traverse and quash search
warrant].) However, in order to
forestall a claim of ineffective assistance of counsel on this point, we
address the merits of appellant’s claim that the prosecution’s failure to
preserve the pipe violated his due process rights as to both counts.
In Trombetta, the
United
States Supreme Court held that law enforcement agencies have a duty under
the federal due process clause to preserve evidence “that might be expected to
play a significant role in the suspect’s defense.†(Trombetta,
supra, 467 U.S. at p. 488; accord,
976.) To fall within the scope of this
duty, the evidence “must both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other reasonably available
means.†(Trombetta, supra, at p.
489.) In that regard, the mere
“possibility†that information in the prosecution’s possession may ultimately
prove exculpatory “is not enough to satisfy the standard of constitutional
materiality.†(Youngblood, supra, 488
U.S. at p. 56.) When evidence is only
potentially useful, the failure to preserve such evidence does not constitute a
violation of due process unless the defendant proves bad faith on the part of
the State. (Id. at p. 57; see also People
v. Cooper (1991) 53 Cal.3d 771, 810-811 [adopting the standard set forth in
Trombetta and Youngblood to evaluate due process challenge under state law].) “On review, we must determine whether,
viewing the evidence in the light most favorable to the superior court’s
finding, there was substantial evidence to support its ruling. [Citation.]â€
(People v. Roybal (1998) 19
Cal.4th 481, 510.)
Appellant has not established that the pipe was
exculpatory. He does not explain in his
supplemental brief what exculpatory value the pipe had, exculpatory value is
not apparent on this record, and trial counsel’s arguments below relating to
the size of the pipe and the possibility that it contained methamphetamine
residue are only speculation. (Cf.
846, 878-879 [defendant’s claim that erased audio tape had exculpatory value
based on speculation something on it would have contradicted evidence
unfavorable to defense].) In addition,
the prosecutor’s profession of ignorance constitutes substantial evidence that
the prosecution did not act in bad faith.
Thus, appellant’s Trombetta/Youngblood
claim fails.
Appellant
argues that the evidence showed the amount of methamphetamine seized was enough
for approximately 30 individual doses, and that the prosecutor “‘misstated
facts,’†and thereby committed “‘misconduct,’†when he stated during closing
argument that appellant had enough methamphetamine to provide 40 to 80
doses. It appears that appellant bases
this claim on the following. The total
weight of the plastic bag containing methamphetamine was 3.9 grams, but the
weight of the methamphetamine alone was only 2.96 grams. Deputy Eveland based his opinion that
appellant possessed methamphetamine for purposes of sales, rather than for
personal use, in part on the quantity of methamphetamine seized. The prosecutor asked Deputy Eveland on direct
examination, “Approximately how many doses can you get from the quantity seized
… in this case?†The deputy, referring
to the weight of the methamphetamine plus
the plastic bag, responded, “Assuming four grams, … at least 40
uses .…†On cross-examination he
reiterated this testimony and stated further that four grams could provide up
to 80 uses for a first-time user. In
closing argument, the prosecutor stated appellant “had four grams total package
weight, approximately 40 to 80 doses.â€
It is apparently this statement to which appellant now objects.
“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.Չۉ۪ [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.’â€â€™â€ (People
v. Samayoa (1997) 15 Cal.4th 795, 841.)
“‘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.’
[Citations.]†(
858.)
‘“[T]he judgment will not be reversed [on state law
grounds] unless, after a review of the entire cause, it appears that it is
“reasonably probable†that a result more favorable to the defendant would have
occurred had the district attorney refrained from the misconduct in question [citations]. If it is asserted that the alleged misconduct
is of constitutional dimensions, it need only be clear “beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtainedâ€
[citation].’†(People v. Bryden (1998) 63 Cal.App.4th 159, 182-183.)
Here, any possibility of prejudice resulting from the
instance of alleged misconduct could have been cured by an admonition. Appellant’s failure to make a timely
objection bars him from now challenging the portion of the prosecutor’s
argument in question. Moreover, the
isolated instance of purported misconduct about which appellant complains does
not constitute a pattern of conduct,
egregious or otherwise, that violated appellant’s federal due process
rights. Finally, even if the
prosecutor’s statement can be regarded as deceptive under state law, it is not
reasonably probable, given the overwhelming evidence against appellant,
including evidence on the question of whether he possessed methamphetamine for
sales purposes rather than for personal use, that the jury would have reached a
result more favorable to appellant in the absence of the purportedly offending
statement by the prosecutor.
Lesser Included
Offense
The court instructed the jury on
possession of methamphetamine for purposes of sale and on the lesser included
offense of simple possession. Appellant
complains that neither he nor the jury was advised of the possibility of
conviction of the lesser offense until “the end of the trial.†It is not clear what appellant’s claim of
error is, but there was no error in either the content or the timing of the
lesser included offense instruction.
Sufficiency of the
Evidence
Appellant argues the evidence was
insufficient to support his conviction.
It appears he bases this contention on the following. One of the deputies who participated in the
search described the methamphetamine seized as a “powdery[,] … white
substance,†whereas the police criminalist who analyzed the contraband indicated
it was a “white crystalline material.â€
Appellant’s contention is meritless.
“When a defendant challenges the sufficiency of the
evidence, “‘[t]he court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which
is reasonable, credible, and of solid
of fact could find the defendant guilty beyond a reasonable doubt.â€â€™â€ (People
v. Clark (2011) 52 Cal.4th 856, 942.)
“‘“[O]n appeal all presumptions favor proper exerciseâ€â€™ of the trial
court’s power to ‘“judge credibility of witnesses, resolve conflicts in
testimony, weigh evidence and draw factual inferencesâ€â€™ .…†(People
v. Alexander, supra, 49 Cal.4th
at p. 883.)
When we apply this standard, we conclude that notwithstanding what
appellant suggests is a conflict in the evidence, substantial evidence supports
the judgment.
Ineffective
Assistance of Counsel
Appellant
contends his counsel was constitutionally ineffective in failing to (1) ask for
a continuance, presumably to give him time to find the missing pipe; (2) “bring
in an expert witnessâ€; and (3) request that the methamphetamine found in his
house be reanalyzed. This contention too
is without merit.
“To prevail on a claim of
ineffective assistance, a defendant must show both that counsel’s performance
was deficient—it fell below an objective standard of reasonableness—and that
defendant was thereby prejudiced.
[Citation.] Such prejudice exists
only if the record shows that but for counsel’s defective performance there is
a reasonable probability the result of the proceeding would have been
different.†(People v. Cash (2002) 28 Cal.4th 703, 734.)
Appellant’s argument is, in
essence, a claim that his trial counsel failed to take steps to obtain and
present certain evidence, viz., the missing methamphetamine pipe, additional
chemical analysis of the seized contraband, and expert witness testimony, on
what subject appellant does not say.
However, appellant has not established that a continuance would have
enabled to him obtain the pipe; that the pipe, once obtained, would have been
helpful to appellant’s cause; that re-testing of the contraband would have
shown that the substance was not methamphetamine; or that an expert witness
could have provided favorable testimony.
Appellant has not met his burden of showing either deficient performance
or prejudice. Therefore, his claim of
ineffective assistance of counsel fails.
Independent Review of the Record
Following independent review of the
record, we have concluded that no reasonably
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before Wiseman, Acting P.J., Levy,
J., and Gomes, J.
name="_ftn2" title="">[1] All
statutory references are to the Health and Safety Code.
