P. v. Rich

Filed 1/14/10 P. v. Rich CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Jennifer Ann Rich was tried by jury and found guilty of felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and misdemeanor being under the influence of methamphetamine (id.,  11550, subd. (a).) Granted Proposition 36 probation for drug treatment (Pen. Code,  1210 et seq.), Rich appeals the judgment of October 16, 2008, claiming error and cumulative prejudice from (1) the exclusion of third party culpability (TPC) evidence and (2) prosecutor misconduct in exploiting the TPC ruling to mislead the jury. We affirm, finding no such error or prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

The motion to admit TPC evidence was brought pretrial, denied without prejudice to renew at the close of the Peoples case, and denied again when renewed. Since we review rulings based on facts before a court when it ruled (In re Zeth S. (2003) 31 Cal.4th 396, 405), this might present us with two sets of circumstances by which to test the evidences exclusion. Rich presents only argument based on the trial evidence, however, and so we construe her challenge as confined to denial of the renewed motion, on the fuller trial evidence. We summarize that evidence here and detail the argument to the jury in the later discussion of the misconduct issue (part III, B, post).

Uniformed Officers Violett and Williams, and Sergeant Medford, of a San Mateo Police Department neighborhood response team, went to a duplex at 661 North Delaware Street, in San Mateo on February 3, 2008, to do a welfare check on children there. In the process they found Rich high on methamphetamine, plus some of the drug in a drawer of a nightstand in her bedroom. The People presented four witnesses: Violett and Williams, a toxicologist who tested the seized drug, and a detective who explained how to determine drug intoxication. The expert qualifications of the latter two witnesses were stipulated at trial. The defense presented no evidence or witnesses, conceding discovery of a usable amount of methamphetamine and guilt of intoxication, but argued that Rich did not know about the methamphetamine. Defense counsel suggested to the jury that it belonged to Lisa Stone, another occupant of the house that afternoon.

At 3:45 p.m. on February 3 (all dates are in 2008), the officers knocked at the door. Rich answered and, informed of their concerns, consented to stepping out onto the front porch with Violett while the other officers went inside to speak with the children. The first room beyond the front door was a living room, and there the entering officers saw five childrenranging in age from four to 12and, on a couch, the other adult female occupant, Stone. Stone told them she was staying there with some of the children, and that she slept on or near the couch. The children seemed healthy and happy, and Stone did not appear to be under the influence of narcotics.

Outside on the porch, however, Rich was obviously intoxicated. As soon as the other officers had gone inside, Violett noticed that Rich spoke rapidly, seemed to have trouble not speaking, and, despite it being cool outside, was sweating profusely, beads of sweat dripping down her face. Her pupils were unusually dilated for the light conditions. Violett took her radial pulse, at the left wrist, and found it to be 124 beats per minute. As he held her forearm, he felt muscular rigidity and noticed that Rich was grinding her teeth. He felt she was probably under the influence of a stimulant. When he asked her about it, she said that she had snorted methamphetamine early the day before, February 2, at 2:00 a.m. Violett did not handcuff her then, since she was being cooperative, but advised her that, once the welfare check was done, she would be placed under arrest for being under the influence of a controlled substance. The other officers reemerged from inside, and Violett told them he was placing Rich under arrest.

That would have been the end of the investigation at the duplex except that, as the officers got ready to transport Rich to the station, she said she needed a jacket from inside because it was cold. Still unhandcuffed, Rich led officers Violett and Williams back inside and to the open door of a bedroom about 10 to 15 feet past the living room.

Rich retrieved a jacket from the closet. A check of the jacket revealed no weapons or contraband. Williams asked her if there was anything illegal in the room they should know about, and Rich said no. When asked if they could search the room, she consented to the effect, Sure, I have nothing to hide. The room looked as if it was shared by adults and perhaps children. It had one adult bed plus bunk beds, and mens and womens clothing. Williams began with a cursory search of closet clothing and, finding no contraband, worked his way to a wooden nightstand between the beds, next to the adult bed. The nightstand had top and bottom drawers and was closed but not locked.

Opening the top drawer, Williams found it cluttered with papers and, lying on top, a pack of Newport cigarettes with seven cigarettes inside. Knowing that drugs are often hidden in cigarette packs, Williams looked inside and found a small green plastic baggie containing a small but usable amount (.3 gramsone or two lines if snorted) of a crystalline substance he recognized as methamphetamine. Lying next to the cigarette pack was a small plastic straw cut at an angle at one end, the kind Williams knew was used to snort methamphetamine. In the same drawer were a wallet, credit cards and utility bills bearing Richs name, none bearing anyone elses name.

Williams took the drug, straw[1] and evidently the cigarette pack over to Violett and Rich, and he asked Rich if the items were hers. She claimed ownership of the wallet and bills, but said the methamphetamine and cigarettes were not hers. At the same time, she admitted that she slept on the side of the bed by the nightstand (within arms reach of it) and that her husband, who shared the bed, slept on the other side.

Rich was taken to the police department, and a personal search of her disclosed no further contraband. Violett there reevaluated Rich in an interview room equipped with dimmable lights. Rich was still rigid, sweating and speaking rapidly, as before, and her radial pulse rate had lessened a bit, to 120 beats a minute. With the room lights dimmed to where a normal pupils measurement would be 5.5 to 6.5 millimeters, hers measured 7.5, and shining a flashlight only reduced the size to 7.0. Shining the light also produced hippus, a slight bouncing back and forth in size as the pupils natural reaction to contract countered the effect of a stimulant. These signs, together with Rich licking her lips, being fidgety, and scratching at her arms and face, confirmed Violetts impression that she was under the influence.

Unchallenged expert testimony confirmed that such symptoms together indicate methamphetamine use. Such obvious symptoms, moreover, indicated fairly recent use, for the effects of methamphetamine, depending on toxicity and the users metabolism, generally dissipate within 6 to 18 hours, while Rich claimed to have ingested the drug over 38 hours prior.

In speaking with officers at the station, after Miranda advisements (Miranda v. Arizona (1966) 384 U.S. 436), Rich kept to her story that she had last snorted the drug at her house at 2 a.m. on February 2, and that she did not know about the cigarettes or drug in the nightstand. Speaking for the first time of the straw, she replied, Yeah, probably, when asked if that was the one, or like one, she had used to snort on February 2.

Double laboratory testing of a urine sample taken from Rich that night later showed presumptive presence of methamphetamine, but not cocaine, opiates, or PCP.

As more fully explained in part III, A (post), a pretrial ruling denied a defense motion to admit evidence that Stone had been arrested at the house on February 2, the evening before, for methamphetamine use, but the ruling allowed the defense to fully explore Stones presence in the house on February 3. Defense counsel did so in cross-examination, insinuating that the drugs found in the nightstand could have been Stones and that the officers were derelict in not exploring that possibility. Counsel elicited from the officers that Stone and the living room were never searched for drugs or paraphernalia, and that Stone was never considered a suspect, evaluated for drug abuse, asked about the drugs they found in the bedroom, monitored to see what she did while the officers went out on the porch before returning for the jacket, or asked whether Stone had access to the room or nightstand. Counsel did not present Stone or Rich as witnesses, but elicited from the officers that they never saw either woman smoke (planting doubt whether Rich was a smoker), and never asked Rich whose drugs (if not hers) they found, whether she had used the straw in the drawer to snort those drugs the day before, and never tried to lift fingerprints from the cigarette pack or green baggie.

Anticipating or opposing those arguments, the prosecutor elicited that the officers had ample reason to arrest Rich without fingerprint testing, which was expensive and not usually done on such items. Careful to counter the defense insinuations without opening the door to events of the day before, the prosecutor elicited that, on February 3rd (also that day), Stone was not the focus of any investigation, did not appear to be under the influence, and that there was no sign of narcotic activity in the house (again that day) until Rich was to be arrested for being under the influence.

III. DISCUSSION

A. Excluded TPC Evidence

Rich contends she was denied her federal constitutional rights to defend and to confront witnesses by the trial courts exclusion of proffered TPC evidence in the form of Stones having been arrested at the duplex, high on methamphetamine and possessing a methamphetamine pipe, on February 2, the evening before. The motion, while mainly premised on a police report, was nevertheless orally presented, both initially and as renewed at trial. We therefore glean the facts from the statements of counsel on both sides of the motion.

There were actually three arrests at the duplex, all between 11:00 p.m. and midnight the evening of February 2 and by the same team of officers involved the next day. The arrests were for narcotics and assault-related offenses. First to be arrested was Fernando Solorizno, who was found in a car in front of the duplex, under the influence of methamphetamine or another stimulant, and in possession of a marijuana pipe. Solorizno said he was meeting a friend inside named Lisa Stone, so the officers knocked at the door and encountered Stone, plus Rich and the five children. Stone was under the influence and subject to a search and seizure condition for drugs. She admitted using methamphetamine and admitted that a methamphetamine pipe in her purse in the kitchen was hers. She was arrested for being under the influence and possessing paraphernalia, but no methamphetamine was found. The third arrestee was Richs husband, who was found hiding in the bedroom. He was not under the influence but was on a no bail warrant. Rich herself was not arrested, and nothing in the offer of proof indicated whether the bedroom nightstand was searched then.

Stone was transported to First Chance, evidently a substance abuse program,[2] where she was booked and then released eight hours later, apparently some time in the morning of February 3. She returned to the duplex just 10 minutes before the officers arrived for the welfare check to find her in the living room with the children.

Defense counsel argued that he needed to have Stones arrest before the jury, noting that no methamphetamine was discovered the night before, that it would assist a defense against a theory of constructive possession (in that drugs were not found on Richs person), that the same officer witnesses would be involved, that Rich denied the drugs in the nightstand were hers, and that Stone could have had access to them. Counsel clarified that he only wanted the arrest of Stone divulged, not the arrests of the others.

The prosecutor argued that what Stone did the night before was irrelevant and that any probative value was outweighed by risks of undue prejudice under Evidence Code section 352. There was no evidence, she noted, that Stone was sitting or staying anywhere other than in the living room on February 3, or on February 2 when she was in the living room with her purse in the kitchen, or that Stone had access to the bedroom, and the only papers in the nightstand drawer were for Rich. And while the People were pursuing a case of sole possession by Rich, evidence of joint possession would not be exculpatory. Defense counsel urged that to deny [Rich] the ability to not only put forth who was present in the house, but who else could have logically possessed this methamphetamine and had the opportunity and means to do so, denies her due process. In further discussion, the court noted that the defense was never precluded from showing Stones presence and actions on February 3, but defense counsel countered that the evidence would also develop that the officers never examined Rich for drug use on February 2, as they did on February 3. The prosecutor responded that the only way to counter criticism of why the officers did not examine Rich the night before was to explain to the jury that, once the officers found the husband hiding and realized that he had a no-bail warrant, the focus shifted to getting him out, and that the husbands arrest would be completely irrelevant to the defense: So any mention of People present in the house on the 2nd should be excluded.

The court ruled pretrial: [A]ll of this in an invitation to the jury to enter into speculation and conjecture about who did what to whom eight [(actually 16 to 17)] hours earlier. And who was under the influence. Who may have been under the influence. A no bail warrant. Arrestee in the residence. Citing jury confusion, the court allowed evidence of who was in the apartment on February 3, but not February 2, calling the earlier events not particularly probative or particularly relevant at that point as to who possessed the drugs found many hours later. The ruling was without prejudice to bring[] it up again at the end of the Peoples case if it somehow becomes relevant.

Upon renewing the motion at trial, defense counsel added nothing to the offer of proof. He also failed to convince the court that the prosecutor had opened the door in questioning; the court noted that the prosecutor had distinctly narrowed her questions to February 3. The court was concerned about leaving an impression that Stone was completely innocent, but ultimately concluded: My prior ruling stands. Ms. Stone can come in and testify if she so wishes.

[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendants guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.] (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) The right to present such evidence does not require that any evidence, however remote, must be admitted to show a third partys possible culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reason-able doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. [Citation.] (People v. Sandoval (1992) 4 Cal.4th 155, 176, quoting People v. Hall (1986) 41 Cal.3d 826, 833.)

We start by rejecting arguments by Rich that the court misunderstood the law in two areas. The court did not, as she urges, focus solely on joint possession (where each possessor would be guilty) to reason that the evidence would not amount to a defense. In the isolated passage she cites, the court did muse that the evidence, at best, goes to the issue of joint possession of the drug found later, but this followed a colloquy about exculpatory value to both joint and sole possession theories. We presume on appeal that a trial court properly applied established law (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914), and Richs cited authority (People v. Gory (1946) 28 Cal.2d 450, 457) implicitly acknowledges that a requirement of knowing possession of drugs is bedrock law in California. The cited remark does not rebut the presumption, both because of the prior discussion on the record (cf. People v. Sparks (1968) 262 Cal.App.2d 597, 601) and the fact that the court ruled that the defense could fully explore the circumstances of Stones presence on February 3, just not the arrest the day earlier. What we gather is that, by saying at best, the court meant that the evidence most strongly supported joint possession, as opposed to Stones sole possession. We agree. The drug was found in Richs drawer and bedroom, where no other adult, beyond Richs husband, slept; Stone had only been in the house 10 minutes before the officers arrived on February 3; and the defense notion that Stone stashed solely-possessed drugs in the bedroom drawer in the brief time that all three officers went out on the porch with Rich, was comparatively weak.

We also find nothing rebutting the presumption regarding Richs view that the court felt that circumstantial TPC evidence was only admissible if the assertedly culpable third party first confess[es] guilt on the stand. The cited remark at trial, that Ms. Stone can come in and testify if she so wishes, merely restated a more elaborate pretrial ruling that the defense might still make out a stronger case of relevance through further testimony. Only pure surmise supported the notion at that point that Stone had ever entered Richs bedroom, much less the drawer, and the defense went on to rest without presenting any further testimony.

We also find no abuse of discretion in the merits of the ruling. While defense counsel urged that to deny [Rich] the ability to not only put forth who was present in the house, but who else could have logically possessed this methamphetamine and had the opportunity and means to do so, denies her due process, case law holds that  mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration  of the crime. (People v. Sandoval, supra, 4 Cal.4th at p. 176.)

There were two implicit defense theories of Stones culpability: (1) she had placed the cigarette pack and drugs in the nightstand, unknown to Rich, and left them there undiscovered the night before while she was under arrest and then away at Second Chances, or (2) having returned to the apartment just 10 minutes before the officers arrived the next day, she deftly secreted them in the bedroom nightstand during the time that all three officers were out on the front porch with Rich, before returning with her to get her jacket from the bedroom. However, since defense counsel was free to explore and plant insinuations to those effects, and later argue them vociferously to the jury, Rich was only deprived of one avenue of showing Stones propensity to use drugs. In fact, without the proffered evidence, jurors could draw a false inference that Stone was there continuously or far longer than the 10 minutes she was really presenta view more favorable to the defense. Thus the court had to factor in that admitting the evidence would have dispelled that impression, actually diminishing the exculpatory value to the defense theory of Stone having sole possession, and no testimony at this trial showed that the officers shut the door while out on the porch so as to give Stone a chance to sneak away to the bedroom.

The trial court may have felt, and the People make a strong argument, that the proffer as it stood at the close of trial did not meet the threshold test of relevance, but we need not decide that issue. We uphold the ruling, rather, on the alternative basis that whatever probative value the evidence had, it was weak and substantially outweighed by risk of prejudice. Defense counsel tried to urge that only Stones arrest need be presented, but this necessarily would have required exploring whether the drugs were in the nightstand on February 2 and whether the officers searched there. As the People pointed out below, Stones arrest alone would have presented a lopsided view if, for example, the discovery of Richs husband, unintoxicated but on a no-bail warrant, was not admitted to explain that the officers attention shifted at that point to taking him into custody, rather than searching further for drugs. Stones absence from the house, until just 10 minutes before the officers returned the next day, would also have to be explored to give balance to the theory that she had recently placed drugs there without Richs knowledge. Certainly the proffered facts did not suggest that she had any opportunity to secret them in the nightstand before police came to the door on February 2 to find her high on drugs. Also, as the People observe, this was a drug arrest, not a conviction, and would have required exploring the facts. This is surely what alarmed the trial court about inviting the jury to enter into speculation and conjecture about who did what to whom [16 to 17)] hours earlier. And who was under the influence. Who may have been under the influence. A no bail warrant. Arrestee in the residence.

Rich relies on United States v. Vallejo (9th Cir. 2001) 237 F.3d 1008 (mod. on other grounds 246 F.3d 1150) (Vallejo), but it is easily distinguished. Defendant Vallejo was charged with importing drugs and claimed he did not know of the drugs, hidden in compartments of his recently bought car. The panel found an abuse of discretion in a trial courts exclusion of evidence that the still-registered former owner of the car had a month earlier been arrested, and since convicted and deported, for bringing the same amounts of the same drugs across the border, at the same port of entry, using the same method of concealment, but in a different car. (Id. at pp. 1022-1024.) The evidence was deemed uniquely relevant and the only answer for the jurors question: If defendant did not know there were drugs in the car and did not place them there himself, who did?  (Id. at p. 1023.)

While there is some analogy between the same-car facts of Vallejo and the same-nightstand theory here, a major difference is that there is no evidence at all that Stone ever occupied, or even entered, the bedroom Rich shared with her husband. Rich might have shown Stones access through testimony of her own, Stone, or anyone who could say Stone had been in that room, but this was never done. The proffer showed that Stone, even on the occasion of her arrest, had her purse in a common area, the kitchen, and was again in just the living room. Further, the incident of the previous evening was an arrest, not an easily-established conviction as in Vallejo, and here, the third partys presence and location in the apartment were fully explored in testimony and argument, so the jury was not left bewildered as to who could have put the drugs in the nightstand, if not Rich.

Richs complaint that the courts ruling prevented her from showing motive through Stones drug use (cf. People v. Davis (1995) 10 Cal.4th 463, 501) exaggerates the scope of the ruling. What was litigated below was the defenses desire to show Stones drug use through the circus of events that led to her arrest the night before, and the court necessarily had that spectacle in mind when it ruled to stay with the February 3 evidence and not the February 2 evidence until further notice. The People seemed to agree with Rich, at argument before this court, that the ruling excluded all evidence from February 2, but we question that assumption, We also fully reject Richs broader notion that the ruling precluded mention of Stones drug use beyond the events of the preceding day. Those questions were never posed to the trial court.

It appears that there were other ways to establish Stones drug use and that the courts sympathetic reception to defense concern about letting Stone appear completely innocent left it open to such possibilities. The court suggested having Rich testify or calling Stone herself as a witness. While the prosecutor remarked at one point, [m]y understanding is that she wont be testifying in this trial this week, this does not establish that Stone was unwilling or otherwise unavailable, and the defense never made such a representation. For all that appears, the defense could have called Stone without sacrificing Richs own right to refrain from testifying.

It also appears that Stones drug use or propensities might have been elicited without Stone or Rich taking the stand. The offer of proof, for example, shows that the testifying officers knew Stone was on probation, with a search condition, and implies that they knew she had been taken to First Chance the night before and not released until the next day, February 3. (See fn. 2, ante.) Rich does not argue that she could not examine or cross-examine the officers about whether they knew Stone was on probation or in a substance abuse program. This would have kept the evidence free of the confusing events of the night before. Alternatively, a conviction for Stone might have established drug use. The defense explored none of those ways of putting Stones drug use before the jury.

Finally, there is no merit to Richs criticism that the court articulated no balancing of interests in making its ruling under Evidence Code section 352. No express weighing is required where, as here, the record shows that the court understood its role in that respect. (People v. Riel (2000) 22 Cal.4th 1153, 1187-1188.)

The trial courts discretion is broad, and we may reverse on appeal only where discretion was exercised in an arbitrary, capricious or patently absurd manner. (People v. Coddington (2000) 23 Cal.4th 529, 619.) Mere room for disagreement does not show abuse (People v. Clair (1992) 2 Cal.4th 629, 655), and the usual exercise of discretion under Evidence Code section 352 does not violate a defendants constitutional right to present a defense (People v. Babbitt (1988) 45 Cal.3d 660, 684) or violate constitutional rights where TPC evidence is involved. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)

No abuse of discretion or other error appears. We therefore need not assess possible prejudice.

B. Prosecutor Misconduct in Jury Argument

Rich contends that prosecutor Trisha Povah deprived her of federal due process by exploiting the courts TPC exclusion ruling to present misleading arguments to the jury. Anticipating the Peoples point that the contention is forfeited by Richs failure to object or seek curative admonitions for any of the claimed misconduct (People v. Barnett (1998) 17 Cal.4th 1044, 1141), Rich argues that her trial counsel rendered ineffective assistance by not doing so. (People v. Boyette (2002) 29 Cal.4th 381, 432-433.) This is a difficult way for Rich to proceed, for mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel (id. at p. 433), and a claim of federal constitutional error itself succeeds only if misconduct so infects a trial with unfairness that it renders the later conviction a denial of due process. (People v. Schmeck (2005) 37 Cal.4th 240, 289.) State law misconduct requires remarks involving deceptive or reprehensible methods employed to persuade the jury. (Ibid.) We see nothing rising to those levels.

Rich complains of remarks made about Stone in rebuttal argument. In initial argument, the prosecutor had made no mention at all of Stone. Defense counsel then exploited this by focusing on the one central issue in the case, who possessed the drug, and a woman by the name of Lisa Stone, who the DA [in] 20 minutes of speaking to you, hasnt talked to you about. Defense counsel criticized sloppy police work in the casenotably lack of fingerprinting and superficial investigation of Stoneand faulted the People for not presenting her as a witness, saying, By the way, where is Lisa Stone?

In rebuttal, the prosecutor addressed fingerprints, and then Stone. The prosecutor first discounted, as illogical, the idea that Stone, having already spoken with officers to their satisfaction, would have planted drugs in the nightstand, with the amazing foresight to anticipate that the officers would go to the bedroom after being out on the porch with Rich.

The prosecutor then added (misconduct claimed by Rich italicized): The defense has thrown out a number of red herrings. Someone else was present in the house. Rolled over and put cigarettes in the bag. [Sic.] Again, possible doubt does not equal reasonable doubt. [] Do we have any reason to believe she was a user, that she knew of the drugs, that she was anywhere near that bedroom? No. There is no evidence before you of that at all. Officers testified that Lisa Stone was not the subject of this investigation. She is not the one who was under the influence of methamphetamine on February 3rd. She was inside the house with the kids in the living room. She was sleeping on the couch.

All of the italicized language was true and consistent with the ruling disallowing reference to the events of February 2. The remarks referred expressly to February 3, and it was obviously not misconduct to adhere to the courts ruling (People v. Earp (1999) 20 Cal.4th 826, 861) or draw conclusions based on rational inferences from the evidence (id. at p. 862). Whether inferences drawn by a prosecutor are reasonable is for jurors to decide (People v. Valdez (2004) 32 Cal.4th 73, 134), and jurors are admonished, as here, that arguments by attorneys in argument are not evidence (ibid.), an instruction we must presume jurors followed (People v. Gray (2005) 37 Cal.4th 168, 217). Thus, Richs claim sounds more like a claim of prejudice from the evidentiary ruling (mooted by our holding that it was not error) rather than prosecutor misconduct.

Nevertheless, Rich relies on People v. Varona (1983) 143 Cal.App.3d 566 (Varona), where a defendant claimed consent against a rape charge, and the prosecutor exploited a ruling excluding evidence of a victims prostitution conviction, exploitation that was held to be misconduct that compounded error in the ruling itself. (Id. at pp. 569-570.) The court reasoned: We agree that, in a proper case, a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story. But we know of no case where such argument is permissible except where a defendant might reasonably be expected to produce such corroboration. Here the prosecutor not only argued the lack of evidence where the defense was ready and willing to produce it, but he compounded that tactic by actually arguing that the woman was not a prostitute although he had seen the official records and knew that he was arguing a falsehood. (Id. at p. 570.)

Rich finds Varona analogous here, where the prosecutor, knowing that Stone had been arrested for using methamphetamine but that Rich was prevented from showing it, argued in part (italics added): Do we have any reason to believe she was a user, that she knew of the drugs, that she was anywhere near that bedroom? No. But a crucial factor distinguishes Varona, beyond the fact that the exclusionary ruling here was not in error. This ruling did not prevent Rich from introducing evidence that Stone was a user, only from employing the confusing arrests the day before to do so. We see nothing in either ruling foreclosing evidence that Stone was a drug user; the issue was her arrest. Even in that regard, the court made explicit, on both occasions, that the defense remained free to boost the relevance of its showing with further evidence. The court expressly suggested Stone or Rich, but surely remained open to other admissible sources, and nothing shows that the court would not entertain evidence of Stone being a user. The record suggests that the officer witnesses, for example, had such knowledge, independent of what transpired on February 2.

Because it appeared that the defense was in a position to produce corroborating evidence, it was not unethical or unfair for the prosecutor to point out that there was no evidence that Stone was a user. Varona is thus distinguishable, as is a second case cited by Rich. (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758 [in child molest case, court error in rejecting evidence, that victim had reported being molested by others, was compounded by improper prosecutor argument that the child must have learned sexual behaviors from being molested by the defendant].)

There being no misconduct, it follows that there was no constitutionally-deficient representation by defense counsel in not raising objections to the argument. Rich does not argue that counsel was ineffective in not seeking to prove Stones use by other means, and the record, in any event, does not show why counsel did not do so. (People v. Wilson (1992) 3 Cal.4th 926, 936.)

C. Cumulative Prejudice from Error

Rich claims cumulative prejudice from errors she has claimed, but since we have found none, this contention fails as well. (People v. Bolin (1998) 18 Cal.4th 297, 335.)

IV. DISPOSITION

The judgment is affirmed.

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Haerle, J.

We concur:

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Kline, P.J.

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Richman, J.

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[1] The straw was the basis for a third count, paraphernalia possession, which was dismissed on the eve of trial.

[2] The record furnishes no detail, but a simple web search of the unusual name discloses a San Carlos, California, substance abuse program called the First Chance Program ().