P. v. Bolen

 

 

 

 

 

 

Filed 9/18/13 
P. v. Bolen CA1/5

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 

 

 

THE PEOPLE,

 

            Plaintiff and
Respondent,                                      A135545

 

            v.                                                                                 (Del
Norte County

                                                                                                Super.
Ct.> Nos.

JOSHUA EUGENE BOLEN,                                            CRF119292,
CRF129057

 

            Defendant and
Appellant.

____________________________________/

 

            Law
enforcement officers found suspected methamphetamine and approximately six
“white oval shaped pills” in a car appellant Joshua Eugene Bolen was
driving.  The People charged him with
various crimes, including possession of
methadone (Health & Saf. Code, § 11350).  At trial — and over appellant’s objection —
the court permitted a Walgreen’s pharmacist to testify the pills were
methadone.  The pharmacist testified he
entered the imprint on the pills into a program used by Walgreen’s called
“facts and comparisons” and the program generated the chemical composition of
the pills: methadone.  The pharmacist
also testified the picture of the methadone pills in the program was identical
to the pills found by law enforcement
officers.  A jury convicted appellant
of various crimes, including possession of methadone, and sentenced him to
state prison. 

            On appeal,
appellant contends the pharmacist’s testimony was not “appropriate expert
opinion” because it was not helpful to the jury and because the pharmacist’s
opinion was not “of a type that would reasonably be relied on . . . to
establish the chemical composition of a purported prescription drug” under
Evidence Code section 801.href="#_ftn1"
name="_ftnref1" title="">[1]  Appellant also argues the prosecutor
committed misconduct during closing argument by “shifting the burden of
proof.” 

We affirm.  We conclude the trial court did not abuse its
discretion by admitting the pharmacist’s testimony.  We also conclude the prosecutor did not
commit misconduct.

FACTUAL AND PROCEDURAL
BACKGROUND

            We
summarize the facts as germane to appellant’s claim regarding his conviction
for possessing methadone (Health & Saf. Code, § 11350) and his claim
regarding prosecutorial misconduct.

The Incident

            In January
2011, parole agent Caleb Chadwick was looking for appellant, a parolee Chadwick
supervised.  Chadwick parked his car in
the Fort Dick Market in Crescent City. 
As Chadwick sat in the driver’s seat, writing notes, he saw “movement in
the corner of [his] eye” and heard someone say, “‘Oh shit.’”  Chadwick looked up and saw appellant in the
driver’s seat of a Jeep Cherokee; he told appellant to stay in the car, but
appellant “got out of the car and took off running.”  Chadwick ran after appellant but could not
catch him.

            As Chadwick
walked back to his car, he saw the Jeep Cherokee near the Sea West
restaurant.  A woman — later identified
as Andrea Hupp — was in the front seat. 
Chadwick ordered Hupp to get out of the car and she complied; Chadwick
then searched the car and found a police scanner and a black men’s jacket in
the center console.  Chadwick had seen
appellant wearing the jacket and noticed it smelled of cologne appellant wore. 

            As Chadwick
searched the jacket, he and another law enforcement officer saw a bag fall out
of the jacket.  Inside the bag were five
smaller bags containing suspected methamphetamine and one bag containing
approximately six “white oval shaped pills.” 
Chemical testing confirmed the five bags contained methamphetamine. 

The Pharmacist’s
Testimony

At trial, the prosecution called
Walgreen’s pharmacist Brian Greenough to identify the pills.  A licensed pharmacist, Greenough had worked
in the field for 32 years, most of that time as a pharmacy manager.  Greenough testified he is able to identify
prescription pills given his extensive experience as a pharmacist.  He testified the pills “are Methadone, 10
milligram.”  At that point, defense counsel
objected, claiming “[i]mproper foundation has been made.  He simply said these are Methadone without
detailing how he came to that conclusion.” 
Counsel also objected to the testimony on the grounds it “requires
multiple levels of hearsay[.]”  As counsel
explained, “if [the People] are solely relying on [Greenough] opening up a book
and looking at codes, that’s also relied upon multiple levels of hearsay and
somebody else’s work in identifying tablets because this substance has not
actually been tested by anybody.  So I
don’t know if it’s actually what it purports to be.”  The court overruled the objections,
concluding there was “plenty of foundation. 
He’s been a pharmacist . . . for 32 years.  He has training in being able to recognize
particular tablets.  And [he] says he
looked at them [and] they’re Methadone. . . . I think there’s been sufficient
foundation laid.” 

Greenough testified he did not
chemically test the pills.  On
cross-examination, he stated, “I looked it up on the program that I have at my
work, and the imprints on the pills identify them as Methadone 10.”  On redirect, Greenough explained he used
“facts and comparisons,” a program “we have at our work” where the pharmacist
puts “the imprint of . . . each drug in the program, [and] it comes up with the
name of the medication.”  Greenough also
printed out a picture of the methadone pills and testified the picture was
identical to the pills found on the day of the incident.  Nothing about the methadone pills suggested
they were counterfeit.  On
recross-examination, Greenough stated: “I don’t do drug testing.  I dispense medications, and I can usually
identify them if somebody shows them to me.” 


Closing Argument

            During his
initial closing argument, the
prosecutor stated, “[Y]ou’ll probably hear about Andrea Hupp.  Someone is probably going to try to make
Andrea Hupp the fall girl here.  Where is
Andrea Hupp?  You didn’t see her up
here.  If she existed and she was going
to be an alibi witness for this gentleman, where is she?  She would not necessarily have had to have
taken the fall and say it was mine.” 
Defense counsel objected, noting, “it’s the People’s burden of proof,
not the defense.”  The court sustained
the objection and the prosecutor argued the fact that Hupp might have driven
the car was immaterial because “[t]he fact that that drug was moved at all and
attributably in the presence of Mr. Bolen satisfies that charge [transporting
methodone].” 

            During his href="http://www.fearnotlaw.com/">closing argument, defense counsel
reminded the jury that the People had the burden to prove each element of the
charged crimes beyond a reasonable doubt. 
Defense counsel claimed it was reasonable that Hupp — appellant’s
girlfriend — drove the car to the market, not appellant, and that “she’s guilty
of transportation,” not appellant. 
Counsel also repeatedly argued Hupp possessed the drugs, not appellant,
stating: “Ms. Hupp is just as likely to have had it in her possession and slid
it over there” and “[i]t’s just as likely Ms. Hupp had this [the drugs] and
tried to slide this over into the jacket on the center console between . . .
both seats and then drove off to Sea West. 
My client is clearly not guilty of that [possession of
methamphetamine].” 

Defense counsel also stated,
“[t]his case is solely centered around the situation where Ms. Hupp could
easily, conceivably, reasonably and justifiably have concealed this from Mr.
Bolen and been the culprit.” 
Additionally, counsel demonstrated how Hupp could have driven the car to
the market, used the police scanner, and concealed the drugs in the
jacket.  Finally, defense counsel argued
the methadone pills could be counterfeit because “there was no actual test
done.  None. . . . They could have tested
it, but no.  Is it a knock-off?  Is [it] actually Methadone? . . . [I]t was
never tested. . . .  It’s their burden of
proof to actually test the substance.” 

            On
rebuttal, the prosecutor described the strategy of laying “everything . . . on
top of Ms. Hupp” as a “huge red herring.” 
He also stated, “[a]nd despite the red herring of where you want to take
Ms. Hupp and throw her under the bus, again, I am allowed to comment on the
fact that when [defense counsel] is trying to tell you, a lot of this stuff, he
had the opportunity to test that Methadone to see if it was a knock-off.”  Defense counsel objected, “[i]nappropriate
argument” and the court sustained the objection. 

Verdict and Sentencing

The jury convicted appellant of:
(1) transportation of methamphetamine (Health & Saf. Code, § 11379); (2)
possession of methamphetamine (Health & Saf. Code, § 11377); and (3)
possession of methadone (Health & Saf. Code, § 11350).  It did not reach a verdict on the charges for
possession of methamphetamine for sale (Health & Saf. Code, § 11378).  Appellant admitted the prior href="http://www.mcmillanlaw.com/">conviction allegations and the court
sentenced him to state prison.href="#_ftn2"
name="_ftnref2" title="">[2]

DISCUSSION

I.

>The Court Did Not Abuse its Discretion by
Admitting Greenough’s

Testimony Identifying
the Pills as Methadone

            Appellant
claims the court erred by admitting Greenough’s testimony identifying the
seized pills as methadone because the testimony did not “assist the jury.”href="#_ftn3" name="_ftnref3" title="">[3]  The rules regarding the admissibility of
expert testimony are well-settled. 
Expert testimony is admissible if it relates “to a subject that is
sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact” and the opinion is “[b]ased on matter . . . of a type
that reasonably may be relied upon by an expert in forming an opinion upon the subject
to which his testimony relates[.]”  (§
801, subd. (a), (b).)  “Testimony in the
form of an opinion that is otherwise admissible is not objectionable because it
embraces the ultimate issue to be decided by the trier of the fact.”  (§ 805.) 
We review a court’s decision to admit expert testimony for abuse of
discretion.  (Sargon Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 773 (Sargon); >People v. Lindberg (2008) 45 Cal.4th 1,
45 (Lindberg).)

Health and Safety Code section
11350, subdivision (a)  makes it a felony
to possess a controlled substance, including methadone.  Although chemical test results are routinely
introduced at trial to establish the illegal nature of a controlled substance,
they are not required.  “[T]he nature of
a substance, like any other fact in a criminal case, may be proved by
circumstantial evidence. 
[Citations.]  It may be proved,
for example, by evidence that the substance was a part of a larger quantity
which was chemically analyzed [citations], by the expert opinion of the
arresting officer [citation], and by the conduct of the defendant indicating
consciousness of guilt. 
[Citation.]”  (>People v. Sonleitner (1986) 183
Cal.App.3d 364, 369 (Sonleitner); see
also People v. Davis (2013) 303 P.3d
1179, 1181 [expert testimony on MDMA’s “chemical composition” or its “effects
on the user” may be used to establish possession of a controlled substance]; >U.S. v. Schrock (6th Cir. 1988) 855 F.2d
327, 334 (Schrock) [federal courts do
not require “scientific identification of a substance [as an] absolute
prerequisite to conviction for a drug-related offense”]; U.S. v. Walters (1st Cir. 1990) 904 F.2d 765, 770 [same].)  

California courts permit the
introduction of expert testimony to prove the nature of a controlled
substance.  (Sonleitner, supra, 183 Cal.App.3d at p. 370; People v. Marinos (1968) 260 Cal.App.2d 735, 738 (>Marinos).)  For example, in Sonleitner, the Second District Court of Appeal upheld a cocaine
possession conviction based in part on the arresting officer’s expert opinion
that the substance was cocaine.  As the >Sonleitner court explained, the officer
“had seen cocaine thousands of times in his 10 years’ experience as a narcotics
officer, and he testified that he could observe the white crystalline character
of the substance, resembling cocaine, as appellant was pouring it from the
bottle.  He said, ‘[A]nyone that has been
in the business, either from my end or the other end can tell the difference
between a cutting agent and cocaine.’”  (>Sonleitner, supra, 183 Cal.App.3d at p. 370.) 
And in Marinos, the appellate
court affirmed a drug conviction on a police officer’s expert opinion — based
on the odor and appearance of a cigarette smoked by the defendant — that the
cigarette contained marijuana.  (>Marinos, supra, 260 Cal.App.2d> at p. 738.)

Courts in other jurisdictions have
reached similar results.  (>Jones v. Commonwealth (Ky. 2011) 331
S.W.3d 249, 254-255 (Jones)
[sufficient evidence supported the defendant’s conviction for trafficking in a
controlled substance, in part because two “fully-qualified” chemists “visually
identified” the drug by relating that “based upon the shape, color, and
markings, the drug visually appeared to be alprazolam”]); State v. Carter (La. App. 2008) 981 So.2d 734, 744 [expert in
forensic chemistry identified the “green pills” as containing hydrocodone by
performing a “visual inspection and comparison with pictures in a book”]; >Sterling v. State (Tex. App. 1990) 791
S.W.2d 274, 277 [pharmacist testified tablets were diazepam based on their
appearance and markings]; State v. Stank
(Wis. App. 2005) 708 N.W.2d 43, 55 (Stank)
[forensic scientist identified a pill as Oxycontin by, among other things,
using a Physician’s Desk Reference.)

            According
to appellant, the rationale from Sonleitner
and Marinos does not apply here
because this case concerns prescription drugs, not “street” drugs.  Appellant claims “the distinction between
street and prescription drugs is important in evaluating whether expert
testimony is helpful in identifying a drug[,]” apparently because lay jurors
identify pills by their appearance and labeling “on a routine basis in their
everyday lives” but cannot identify an “unlabeled, illegal street drug” such as
marijuana, heroin, or a “pile of white powder.” 
Appellant faults the People for “ignoring the substantive differences”
between “street” and prescription drugs, but he does not identify those
differences.  We are not persuaded. 

 â€œ[A]lthough expert testimony is generally
inadmissible on topics ‘so common’ that jurors of ordinary knowledge and
education could reach a conclusion as intelligently as the expert, an expert
may testify on a subject about which jurors are not completely ignorant.  [Citations.] 
In determining the admissibility of expert testimony, ‘the pertinent
question is whether, even if jurors have some knowledge of the subject matter,
expert opinion testimony would assist the jury.’  [Citations.]” 
(Lindberg, >supra, 45 Cal.4th at p. 45; see also
Simons, Cal. Evidence Manual (2013 ed.) § 4:7, p. 308, citing cases
(Simons).) 

Here — where chemical testing was
not performed — Greenough’s testimony would help the jury determine whether
appellant possessed methadone in violation of Health and Safety Code section
11350.  (See In re Waylon M. (1982) 129 Cal.App.3d 950, 952 [identification of
the nature of the substances “called for expert opinion” where chemical test
results were not admitted into evidence at trial]; Schrock, supra, 855 F.2d at p. 333.)  Although some jurors may possess general knowledge
about prescription medication, we are not persuaded by appellant’s argument,
unsupported by authority, that the average juror would be able to identify a
pill such as methadone based on its “appearance and labeling.”  The appearance of medication in pill form is
characterized by a variety of features — called “trade dress” — such as color,
size, shape, finish, presence or absence of scoring, as well as imprint or
inscription.  (See Jones, supra, 331 S.W.3d at p. 255.)  On this record, we cannot conclude the
appearance of a methadone pill is “of such common knowledge that ordinary
people could reach an opinion as well as the witness” or that Greenough’s
opinion would “add nothing” to the issue. 
(Simons, supra, § 4:7, p. 308;
Lindberg, supra, 45 Cal.4th at p. 46;
see also People v. Edwards (Aug. 22,
2013, No. S073316) ___ P.3d ___, ___ [ 2013 WL 4464611] [doctor’s “medical
expertise provided additional insight above and beyond the jury’s general
knowledge” about painfulness of victim’s injuries].)

            Relying on >State v. Ward (N.C. 2010) 694 S.E.2d 738
(Ward), appellant contends
Greenough’s act of comparing a photograph of methadone on the “facts and
comparisons” program with the actual pill would not assist the jury under
section 801, subdivision (a) because jurors can make the same comparison.  In Ward,
the North Carolina Supreme Court held the trial court abused its discretion by
permitting the prosecution’s “expert witness to identify certain pills when the
expert’s methodology consisted solely of a visual inspection process.”  (Id.
at p. 739.)  The Ward court determined the visual inspection was “not sufficiently
reliable to identify the substances at issue” (id. at p. 743) and concluded “a scientific, chemical analysis must
be employed to properly differentiate between the real [controlled substance]
and the counterfeit.”  (>Id. at pp. 745, 747.) 

Ward
is distinguishable for several reasons. 
First, under California law, chemical analysis is not required to
establish the identity of a controlled substance.  (See People
v. Palaschak (1995) 9 Cal.4th 1236, 1242 (Palaschak) [elements of possession of a controlled substance “‘may
be established circumstantially’”].) 
Second, and in contrast to the expert witness in Ward, Greenough did not — as appellant contends — simply compare
the pills seized during the incident to pictures of methadone pills.  In addition to performing a visual
inspection, Greenough entered the imprint on the pills into a program which
generated the name of the medication. 
For these reasons, Ward has no
application here.  (See >Jones, supra, 331 S.W.3d at p. 255
[visual identification “confirmed through a review on Identidex, a database
only accessible to law enforcement agencies”].)

            We reject
appellant’s claim that comparing a pill to an image in a database is akin to
comparing shoeprints, which is a matter of nonexpert testimony under >People v. Taylor (1935) 4 Cal.2d 495,
497 (Taylor).  There, the California Supreme Court stated
the comparison of shoeprints is a matter of nonexpert testimony because
“shoeprints are so large and the points of similarity so obvious, the
comparison . . . is a matter of nonexpert rather than of expert
testimony.”  In contrast to >Taylor, discerning the identity of a
prescription pill — counterfeit or otherwise — requires a pharmacist to
consider a variety of physical characteristics, as we have noted, including the
drug’s inscription, the inscription’s type or font, the color, size, shape, and
weight of the pill.  Prescription pills,
unlike shoeprints, are not large, and do not have obvious “points of
similarity.”  (Cf. Taylor, at p. 497.)  There
are many variations in prescription pills, and each prescription pill has a
unique trade dress.  We conclude
Greenough’s identification of pills seized during the incident as methadone was
“‘sufficiently beyond common experience’” that Greenough’s testimony “‘would
assist the trier of fact.’”  (>People v. Gardeley (1996) 14 Cal.4th
605, 617.) 

Next, appellant contends the court
should have excluded Greenough’s testimony because “it was not based on the
type of matter that would normally be relied on to establish the chemical
composition of a purported prescription drug in a criminal trial.”  According to appellant, the method Greenough
used to compare the seized pills “to a database . . . did not provide a
reliable basis for determining what the pills were.”href="#_ftn4" name="_ftnref4" title="">[4]  Our Supreme Court has recently held that
“‘[a]n expert opinion has no value if its basis is unsound.  [Citations.] 
Matter that provides a reasonable basis for one opinion does not
necessarily provide a reasonable basis for another opinion.  [S]ection 801, subdivision (b), states that a
court must determine whether the matter that the expert relies on is of a type
that an expert reasonably can rely on ‘in forming an opinion >upon the
subject to which his testimony relates.’ 
[Citation.]  We construe this to
mean that the matter relied on must provide a reasonable basis for the
particular opinion offered, and that an expert opinion based on speculation or
conjecture is inadmissible.”’  (>Sargon, supra, 55 Cal.4th at p. 770,
quoting Lockheed Litigation Cases
(2004) 115 Cal.App.4th 558, 564.)

Here, Greenough testified he
employed the “facts and comparisons” program used by Walgreen’s to identify the
seized pills.  First, he entered the
pills’ imprint into the program, which generated “the name of the
medication.”  Then he printed out a
picture of the pill from the program and compared the picture to the seized
pills.  We believe this explanation is
sufficient to support Greenough’s opinion for purposes of identifying the pills
as methadone.  In our view, Greenough’s
failure to describe the “facts and comparisons” program in more detail does not
suggest his conclusions are speculative, conjectural, or lack a reasonable
basis.  On this record, the trial court
did not abuse its discretion by concluding there was a reasonable basis for
Greenough’s opinion.  The court’s
decision to admit the testimony was not “‘so irrational or arbitrary that no
reasonable person could agree with it.’” 
(Sargon, supra, 55 Cal.4th at
p. 773, quoting People v. Carmony
(2004) 33 Cal.4th 367, 377; see also State
v. Clark (Mont. 2008) 198 P.3d 809, 819 [pharmacist’s “testimony regarding
the identification of prescription drugs by reference to their unique imprint
code and national pharmaceutical databases is not novel scientific evidence
requiring a Daubert hearing”]; >Stank, supra, 708 N.W.2d at p. 55
[noting courts “have recognized the Physician’s
Desk Reference as a source commonly relied upon by members of the medical
profession and pharmaceutical industry”].)

II.

Appellant’s Prosecutorial Misconduct Claim Fails

Next, appellant claims the
prosecutor committed misconduct during closing argument by attempting to shift
the burden of proof to require him to prove his innocence.  We address the merits of the claim
notwithstanding his trial counsel’s failure to request an admonition.  (See People
v. Panah (2005) 35 Cal.4th 395, 462.)

“‘A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits misconduct, and such
actions require reversal under the federal Constitution when they infect the
trial with such “‘unfairness as to make the resulting conviction a denial of
due process.’”  [Citations.]  Under state law, a prosecutor who uses such
methods commits misconduct even when those actions do not result in a
fundamentally unfair trial.’ 
[Citation.]  ‘In order to preserve
a claim of misconduct, a defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review.’ 
[Citation.]  When a claim of
misconduct is based on the prosecutor’s comments before the jury, ‘“the question
is whether there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion.”’  [Citation.]” 
(People v. Friend (2009) 47
Cal.4th 1, 29.)

“A prosecutor has wide latitude to
challenge a defendant’s evidence, and so long as the argument is fair comment
on the evidence or a reasonable inference drawn therefrom, it is
permissible.”  (People v. Gray (2005) 37 Cal.4th 168, 216.)  “[T]he prosecutor may comment ‘“on the state
of the evidence, or on the failure of the defense to introduce material
evidence or to call logical witnesses.”’” 
(People v. Cornwell (2005) 37
Cal.4th 50, 90, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, quoting >People v. Turner (2004) 34 Cal.4th 406,
419.)  “‘It is settled that a prosecutor
is given wide latitude during argument. 
The argument may be vigorous as long as it amounts to fair comment on
the evidence, which can include reasonable inferences, or deductions to be
drawn therefrom.’  [Citation.] . .
.”  (People
v. Wharton (1991) 53 Cal.3d 522, 567.) 
A reviewing court must view the allegedly objectionable statements “in
the context of the argument as a whole.” 
(People v. Dennis (1998) 17
Cal.4th 468, 522 (Dennis).)

There was no misconduct here.  The prosecutor’s comments merely drew
attention to the absence of a witness — Hupp — who might have corroborated
appellant’s theory of the defense: that he did not possess or transport the
narcotics.  (People v. Gonzalez (2012) 54 Cal.4th 1234, 1275.)  During cross-examination of Chadwick, defense
counsel sought to establish Hupp could have possessed and transported the
drugs, asking Chadwick, “Ms. Hupp had just as easy access to the same items
when she drove over to Sea West; correct?” 
And during closing argument, defense counsel repeatedly argued the drugs
were Hupp’s, not appellant’s.  The
prosecutor was responding to appellant’s asserted defense that the drugs
belonged to Hupp and commenting on the lack of evidence to support the defense
theory. 

People
v. Woods (2006) 146 Cal.App.4th 106 (Woods)
— where the prosecutor committed misconduct by arguing that the defendant was
“‘obligated’ to put on evidence” and where she employed “factually unsupported
argument” and “argument [that] was largely nonsensical” — is inapposite.  (Id.
at pp. 113, 116.)  Here and in contrast
to Woods, the prosecutor did not
assert the defense had the obligation to present evidence.  The prosecutor simply commented on
appellant’s failure to call Hupp as a defense witness.  The prosecutor’s argument was factually
supported and was a fair comment on the evidence.  Additionally, no reasonable juror would have
taken the prosecutor’s comments to imply a shift in the burden of proof,
particularly where the court and the attorneys for both parties repeatedly
advised the jury that the prosecution had the burden of proof beyond a
reasonable doubt. 

Finally, we reject appellant’s
claim that the prosecutor committed misconduct by improperly suggesting the
defense could have tested the methadone pills. 
During closing argument, defense counsel argued the methadone pills
could be counterfeit because “there was no actual test done.  None. . . . They could have tested it, but,
no.   Is it a knock-off?  Is [it] actually Methadone? . . . [I]t was
never tested.  It’s their burden of proof
to actually test the substance.”  On
rebuttal, the prosecutor could respond by arguing appellant had presented no
evidence showing the pills were counterfeit. 
(People v. Cunningham (2001)
25 Cal.4th 926, 1026 [“[a]rguments by the prosecutor that otherwise might be
deemed improper do not constitute misconduct if they fall within the proper
limits of rebuttal to the arguments of defense counsel”].)  Because the prosecutor’s comments about
methadone testing responded to defense counsel’s argument, there was no
misconduct.

We have reviewed the prosecutor’s
comments on Hupp and on the lack of methadone testing “in the context of the
argument as a whole” and conclude they do not constitute href="http://www.fearnotlaw.com/">misconduct.  (Dennis,
supra, 17 Cal.4th at p. 522.)



DISPOSITION

            The
judgment is affirmed.

 

 

 

 

                                                                                                _________________________

                                                                                                Jones,
P.J.

 

 

We concur:

 

_________________________

Simons, J.

 

_________________________

Bruiniers, J.