P. v. Lewis
Filed 11/1/10 P. v. Lewis CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DOLORES LEWIS, Defendant and Appellant. | G043119 (Super. Ct. No. 09CF0985) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. Affirmed.
John D. O’Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Michael Dolores Lewis was convicted of possession of marijuana for sale (Health & Saf. Code, § 11359) and transportation of marijuana (Health & Saf. Code, § 11360, subd. (b)). The court sentenced him to probation with a requirement he serve 90 days in jail. Defendant asserts prosecutorial misconduct based on questions eliciting alleged inadmissible evidence and, alternatively, ineffective assistance of counsel for his lawyer’s failure to object to the challenged prosecutor’s questions. We find no error and affirm.
FACTS
When police pulled over defendant’s car on a traffic stop, officer Rene Barraza noticed an odor of marijuana in the car. During a consensual search of the car Barraza found various quantities of marijuana in several places in the car; the largest single quantity was 15.69 grams. A search of defendant produced $280 in fives, twenties, and one 50 dollar bill. Defendant first told Barraza he had the marijuana for personal use but then said he occasionally gave it to friends. He did not charge them anything but if money or favors were offered he took them. Additional facts are set out in the discussion.
DISCUSSION
1. Prosecutorial Misconduct
a. Background
In a pretrial discovery request defendant’s lawyer sought any documents relating to a robbery investigation, including the names of officers involved. The prosecution objected, claiming the information was irrelevant and defendant had failed to show good cause because, although the case was still pending, defendant was “not a suspect . . . and ha[d] been ‘cleared’ as a perpetrator.”
At trial Barraza testified she was part of a special task force, whose duties including staking out a residence of possible robbery suspects. She stated she stopped defendant because “[o]ur investigation units surveilling the house identified a vehicle suspecting that that individual in that vehicle was one of the suspects in the robbery case.” There was then an unreported sidebar after which Barraza testified she had probable cause to stop defendant’s car because its rear taillight was not working. She further testified defendant agreed she could search his person and when asked if she searched the passenger Barraza answered, “First I wanted to make contact and ask if [the passenger] was on probation or parole. He stated to me he was” and allowed himself to be searched.
At a subsequent recess defense counsel moved for a mistrial, challenging a reference to the robbery in the opening statement, which was not reported, as well as Barraza’s testimony regarding the robbery surveillance. He stated that Barraza’s testimony was inadmissible character evidence and that he could not counter it due to the prosecution’s failure to produce exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215]).
The prosecutor explained she had elicited the evidence in anticipation of the defense the police were “out to get . . . defendant.” The court explained that was “rebuttal evidence, if we ever get there. But . . . these things are just wholly inadmissible. . . . [I]t should have never been discussed in any way, shape or form in this trial. It’s just not right. It’s just not right. It has nothing [to] do with this. . . . The whole surveillance is completely irrelevant to any issue in this case. The fact that the . . . participant in the car[] is on probation, no reason whatsoever to ask that question unless the prosecution is simply intentionally trying to sully the reputation of the defendant and prejudice him.”
Acknowledging “erroneous admission of incurable evidence is grounds for a mistrial,” the court noted because there was no objection to the testimony, admission of the evidence was not improper. It stated it would have sustained an objection because the evidence was not relevant. On that basis the court declined to grant the motion. That left the question of “what, if anything, should be done about [admission of the evidence]” and the court stated it was “open to suggestions.” The prosecutor stated her intent was to elicit testimony from Barraza that defendant was not a suspect in the robbery. Defense counsel stated that, if the court denied the motion, he preferred that option rather than having the court strike the testimony and admonish the jury.
The court then denied the motion for lack of an objection. Testimony then resumed and on a question from the prosecutor, Barraza testified she was told defendant was not a suspect in the robbery investigation and was “cleared.”
b. Denial of Motion for Mistrial
Defendant claims prosecutorial misconduct based on the questions eliciting testimony about police having him under surveillance as a possible robbery suspect and the probation status of his passenger. He asserts the information violated Evidence Code section 1101 and was irrelevant and the prosecutor erred in eliciting the testimony.
“‘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.’ [Citation.]” (People v. Silva (2001) 25 Cal.4th 345, 373.) However, “[e]ven assuming for purposes of argument that the prosecutor’s actions constituted misconduct, we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
Here defense counsel did not make timely objections to the testimony regarding surveillance of robbery suspects or the passenger’s probation status. On appeal defendant argues the failure to object did not result in forfeiture of the issue because an objection would have been futile. The record does not support this position. Rather, twice the court explicitly stated it would have sustained an objection had it been made. Defendant’s assertion the prosecutor continued to argue the questions were proper even after court the stated they were not does not change this conclusion.
Defendant’s contention the court agreed an admonition would not have remedied any damage caused by the testimony is not borne out by the record. What the court did state was that since no objection was made at the time of the testimony, to later instruct the jury would call more attention to it than had it been done when the evidence came in. Further, contrary to defendant’s claim, this was not such an “extreme” example of prosecutorial misconduct that striking the testimony about the robbery surveillance and instructing the jury not to consider the evidence would not have cured any error. Rather, when the court indicted it would not grant the mistrial motion, defense counsel made a tactical decision that, instead of highlighting the testimony by having it stricken and the jury admonished, he preferred to accept the prosecutor’s proposal to have Barraza testify defendant was not a suspect in the robbery.
In any event defendant has not demonstrated the reasonable probability that had Barraza not testified to the challenged statements defendant would have achieved a more favorable result. He concedes there was substantial evidence he possessed the marijuana but claims the evidence of possession for sale “was less compelling.” We disagree.
Defendant admitted the marijuana belonged to him. A portion of it was in 4 baggies containing close to 1.5 grams each. In addition defendant had $280 in cash in various denominations, despite the fact he was unemployed. Defendant also told Barraza he accepted money or favors from friends in exchange for marijuana. As to the elements of possession for sale the jury was instructed that “[s]elling . . . means exchanging the marijuana for money, services, or anything of value.” (CALCRIM No. 2352.) Thus there was substantial evidence of possession with the intent to sell. And defendant fails to show how the challenged statements about being cleared of suspicion of robbery or having a passenger on probation in any way strengthens the possession for sale charge.
In addition, as to the testimony regarding the probation status of defendant’s passenger, there has been no showing of misconduct. The record does not reveal the prosecutor intentionally sought to have Barraza testify to this information. Instead it was essentially a nonresponsive answer to a question about whether the passenger agreed to be searched. “Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.” (People v. Scott (1997) 15 Cal.4th 1188, 1218.)
2. Ineffective Assistance of Counsel
Defendant claims trial counsel’s failure to object to the questions at issue was ineffective assistance. “To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 876.) “‘“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” [Citation.] “[W]e accord great deference to counsel’s tactical decisions” [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” [Citation.]’ [Citation.]” (Ibid.)
It is clear from the extensive colloquy set out above that the decision by defendant’s lawyer not to object to the testimony when it was originally elicited and subsequent election not to have the testimony stricken in connection with a jury admonition in favor of having Barraza testify defendant had been cleared of any suspected robbery was tactical. In the context of the trial his rationale for the decision was reasonable. Defendant has not shown his lawyer’s performance fell below professional standards.
DISPOSITION
The judgment is affirmed.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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