Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. SC207568
Richman, J.
After a jury found defendant Antonia Gamez Cruz guilty as charged of possessing cocaine base for purposes of sale (Health & Saf. Code, § 11351.5), the trial court suspended imposition of sentence and admitted him to probation upon specified conditions. On this timely appeal, defendant contends only that he was the victim of prosecutorial misconduct. We conclude there was no misconduct, and we affirm.
BACKGROUND
There was no dispute at trial that on December 17, 2008, San Francisco police officers arrested defendant who was in possession of 17 packages of crack cocaine. Defendant admitted this at trial and continues to do so in his briefs here. The prosecution presented a police expert who testified that the cocaine was possessed with the purpose of selling it. The defense presented a civilian expert, Gerald Miller, a former drug addict, who testified that the circumstances were equally consistent with the absence of such an intent. Mr. Miller was the sole witness for the defense.
DISCUSSION
Defendant contends that the following excerpts from the prosecutor’s closing argument “instructed the jurors to follow an erroneous interpretation of the jury instructions that shifted the burden of producing evidence to appellant, ” thus violating his right under state and federal constitutions to the presumption of innocence and the requirement that his guilt be proven beyond reasonable doubt.
(1) “Mr. Gamez Cruz uses drugs? I don’t know. There’s no evidence before you of that, and that’s pure speculation. Not even their expert [Mr. Miller] knew that. Their expert has no evidence he’s [defendant] ever used drugs in his life. There’s nothing before you that said that. And for you to think that or consider it is pure speculation and it cannot be part of your deliberations. The only things you’re considering are the facts which is the evidence that you have heard from those witnesses and the law as the judge will give you....”
(2) “You can’t speculate or think about what could have been or what might be or what you haven’t heard, just on what you have.”
(3) “We’re not here about what is possible or what might be or what is imaginary or speculative. We’re here about what is proved and what is reasonable. [¶] Is it possible that other things happen? The jury instructions specifically tell you you’re not to consider anything outside of the evidence in this case. And you’re not to speculate as to other possible scenarios, other possible evidence, other imaginary things. You’re supposed to render your decision based on facts you have before you.”
(4) “There’s no evidence that he is a user in this case to support a reasonable interpretation it was possessed for personal use. The only reasonable interpretation is that it was for sales.”
(5) “Based on the evidence before you and just the evidence before you, not on speculation or anything else, it’s clear there on the 17th of December, Mr. Gamez Cruz did possess those rocks with the intent to sell them.”
Defendant argues that “many of these statements... are unmistakable assertions that if the defendant did not put on evidence to support an alternate explanation of the evidence, the jury may not consider that scenario when determining whether the prosecution has proven its case. When they are put in the context of her [the prosecutor’s] entire arguments, there is no doubt she was asserting an interpretation of the instructions which required the defendant to present evidence to prove he lacked the intent to sell the drugs if he was not to be found guilty of possession for sale.” Or, as defendant puts it at another point, “The prosecutor’s argument was precisely the opposite of what the law requires when considering whether the defendant is guilty. The central obligation imposed on jurors by the requirement of proof beyond a reasonable doubt and the presumption of innocence is the requirement that the jurors consider whether they can imagine alternate explanations that might reasonably explain the evidence presented at trial.”
We think it is defendant who fails to appreciate the full context of the prosecutor’s argument.
The theory of the defense, as outlined in its opening statement, was that defendant was apprehended after he had purchased the 17 packages of cocaine for his personal use, the drug intended to assuage his loneliness and homesickness for his home and family in Honduras. However, because defendant did not testify, his counsel had to concede that there was no direct evidence of his mental state. Without becoming impaled on Griffin v. California (1965) 380 U.S. 609, this was the basic point the prosecutor was trying to show to the jury. Additional remarks by the prosecutor, which are not quoted in defendant’s brief, make this clear.
Thus, the prosecutor opened her argument by noting that defendant “did call an expert, an expert who does interviews with people who deal drugs and tries to help people and he never knew Mr. Gamez Cruz. He didn’t try to give you any information about this man. He never met him. He never reviewed anything about him. He never saw any test results that showed he was a user. He was never asked to do anything specific to this case. So there’s no information about any of that. Through either evidence presented by the People or evidence by his own expert.”
The prosecutor proceeded to examine the elements of the charged offense, noting that it was uncontested that defendant actually had possession, that it was cocaine, and that the 17 rocks constituted a usable quantity, thus coming “to the one element on this which is really the crux of this case, and it is when the defendant Mr. Cruz had those 17 rocks... did he intend to sell them.” She then examined the testimony, drawing out the features she cited as circumstantial evidence that defendant was no mere innocent consumer. The prosecutor then made the remarks quoted above at (1), and returned to the attack on defendant’s expert:
“Mr. Miller has done a great deal of work with Delancey Street and he’s really come quite a long way. He never met Mr. Gamez Cruz. He doesn’t offer that much with respect to this defendant. What he does tell you is that it can be either way in his opinion. Well, that’s kind of saying a lot more for a man who’s dedicated his life to cocaine users. He’s going to come into court-and I told you before he’s testified four times for Mr. Rosen’s [defense counsel] firm and he’s never given any opinion other than it’s possessed just for personal use. After hearing the facts in this case, he couldn’t say that. At best he could say it could be either way.
“When you look at the factors individually he said the way it’s packaged it’s more likely for sales. The money [found on defendant] can go either way. The area [San Francisco’s Tenderloin] is clearly for sales. Lack of paraphernalia is clearly for sales. So the best their hired expert can do is try to tell you it’s possible it could have been for personal use. Not even he said it was reasonable to believe under all these circumstances it was for personal use.” The prosecutor concluded her initial closing argument with the remarks quoted above at (5).
Mr. Rosen’s closing argument for the defense was devoted to demonstrating that the circumstances attending defendant’s arrest were consistent with the conclusion that the possession was not for sale. One point made by the prosecutor about the defense expert was specifically addressed: “The prosecutor pointed out that Mr. Miller never met Mr. Gamez Cruz. That’s on purpose. This isn’t a case where Mr. Miller is being hired as a defender of Mr. Gamez Cruz. That’s my job. Mr. Miller is going to render any opinion based on a hypothetical situation. That’s what experts do when they come to court.” And counsel laid considerable emphasis on whether the jury could find proof of possession for sale beyond a reasonable doubt.
The prosecutor resumed her argument with a response to the defense argument about reasonable doubt. After making the remarks quoted above at (3), the prosecutor continued:
“Only consider reasonable doubts, only consider what is reasonable as an alternative proof that it was possessed for personal use. Really, is there anything reasonable about the evidence given to you that in this case Mr. Gamez Cruz possessed this cocaine base for personal use? There’s no evidence that Mr. Gamez Cruz is a cocaine base user. There’s no evidence that he ever used cocaine. There’s no evidence that he has such a habit he needs to go out to the Tenderloin to try over three grams. The experts testify that is a lot for a user to buy. And, yes, some people can use that amount, but that would have to be someone who has a pretty strong addiction or use pattern of cocaine base. We don’t have any evidence of that in Mr. Cruz’s case.”
Then followed the prosecutor’s remarks quoted above at (2), but here are the remarks immediately before and after that excerpt: “Mr. Rosen was asking you to consider your feelings about this case, and I have a little bit of concern about that because what the law is and what the judge is going to tell you, you should put any sympathy, empathy, and any kind of prejudice or any feelings aside and really just concentrate on the facts and the law and nothing else. It’s not on your feelings about Mr. Gamez Cruz in general, not your feelings about drug dealing in general. It’s your decision based on the evidence and the facts of this case about what that shows you and what is the reasonable, only reasonable interpretation of that.”
The prosecutor concluded her argument with the remarks quoted above at (4). But, again, that excerpt must be appreciated in its total context, which is this: “Is it reasonable to believe that a buyer who just comes and spends all his money-well, all of it except for $70 [the amount found on defendant when arrested], to buy 17 individual little rocks of crack cocaine is going to stand in an area of drug dealing waiting for police and then when he sees one [officer] leave and then come back towards that same area without using it, without doing anything with it? Would it be more reasonable if he was buying it, he would leave and go home and smoke his drugs? There’s no evidence that he is a user in this case to support a reasonable interpretation it was possessed for personal use. The only reasonable interpretation is that it was for sales.”
What defendant sees as misconduct we view as merely fair comment on the evidence-particularly the credibility of Mr. Miller-with the prosecutor implicitly drawing the jury’s attention to what the defense claimed in its opening statement and what it was able to substantiate at trial. (See People v. Bemore (2000) 22 Cal.4th 809, 846 [“the prosecutor may highlight the discrepancies between counsel’s opening statement and the evidence” and “criticize[] the defense theory of the case because it lacks evidentiary support”]; People v. Thomas (1992) 2 Cal.4th 489, 529 [“the prosecutor is entitled to comment on the credibility of witnesses based on the evidence adduced at trial”].)
But defendant sees it differently. To him, “Jurors are supposed to speculate as to other possible scenarios. They are obligated to consider what exculpatory evidence might not be before them. (See Johnson v. Louisiana (1972) 406 U.S. 356, 360 [reasonable doubt includes doubt based on reason which arises from the evidence or lack of evidence].)” Johnson involved the issue whether a less-than-unanimous jury verdict was constitutional as being compatible with the due process requirement of proof beyond a reasonable doubt. The court held as a matter of federal constitutional law that it was, because “want of jury unanimity is not to equated with the existence of a reasonable doubt....” (Id. at p. 363.) In the course of reaching that conclusion, the court stated on page 360: “Numerous cases have defined a reasonable doubt as one ‘ “based on reason which arises from the evidence or lack of evidence.” ’ [Citations.].”
Defendant is unable to produce a single precedent applying this expression from Johnson into a license, still less a positive duty, for a criminal jury to cross into the realm and reach its verdict on the basis of outright speculation. There is California authority mirroring the Johnson statement that a gap or lack of evidence in the prosecution’s case can be considered in assessing reasonable doubt. (E.g., People v. Simpson (1954) 43 Cal.2d 553, 566; People v. Campos (2007) 156 Cal.App.4th 1228, 1238; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1509 [missing prosecution exhibit].) But nothing in the way of authority requires a jury to speculate upon, and then take as proven, a point favorable to a defendant in the face of prosecution evidence to the contrary.
Here, the prosecution did present evidence supportive of the conclusion that defendant’s possession of a controlled substance was for sale. At worst, the issue was one where the evidence could have gone either way on the issue of intent, just as defendant’s expert acknowledged. Whether defendant was a user, which would buttress the claim of personal use, was not an element of the offense or a matter the prosecution was obligated to disprove. There was nothing improper in the prosecutor pointing out that the defense had no evidence of the lesser intent. Moreover, we do not construe the prosecutor’s argument as advising the jury that, because of the evidentiary hole in the defense theory, she was in any way relieved of the burden of proving all of the elements of the charged offense beyond a reasonable doubt.
Finally, defendant contends that the following remarks were also misconduct:
“The questions the defense was raising couldn’t he have been buying it in bulk to go home? If that’s the case, which I guess is certainly possible, is it reasonable? Is it reasonable to believe? Not just if there’s a possible alternative, it has to be a reasonable alternative. Is it reasonable to believe that someone comes all the way over here to buy 17 individual rocks of crack cocaine with no paraphernalia and then will stay in the area of Golden Gate and Larkin, sees a police officer in that area, leaves, looks around for him, and then goes back to where the sales are going on? Is it reasonable he’s the user or reasonable that he’s the seller?
“I will argue it’s clearly unreasonable with those facts, the money on him, the lack of paraphernalia, his actions when dealing with the police, the 17 rocks, the nature of their packaging, that it is unreasonable to believe that he was there for the purposes of possessing it for his own use.
“And that’s a very important distinction. Circumstantial evidence.... The instruction is pretty clear on this. It does say that if there are two reasonable explanations for a point, you need to look at the one that favors innocence. But that’s not true if one of them is not reasonable. If you find that it’s not reasonable that someone would come here and act in the way that Mr. Gamez Cruz acted, with the money, with the individual rocks of crack cocaine, with the packaging, with the wrapper, lack of paraphernalia, with all of the factors everyone talked about here and still stay in that area, that’s just not reasonable. If it’s not reasonable, you can reject it, and then the only reasonable interpretation of evidence is that he was in this area with the crack cocaine to sell it.”
Defendant calls this misconduct because it “required that the jurors only consider reasonable doubts, which, she explained to them, meant that explanations for appellant’s possession of the drugs other than for the purposes of sales must not be considered if the explanations are not reasonable. [¶] The distinction between ‘beyond reasonable doubt’ and ‘an unreasonable belief’ is subtle, but critical. The prosecutor argued they were equivalent. Throughout her carefully crafted arguments she consistently applied an ‘unreasonable belief’ standard for her analysis of the evidence, rather than the ‘beyond a reasonable doubt’ standard or anything similar.”
Having carefully read the prosecutor’s arguments, we do not detect the pernicious danger identified by defendant. The trial court instructed the jury with CALCRIM 200 that “You must follow the law as I explain it to you.... If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” With a full appreciation of the record, we believe the matter is settled by our Supreme Court’s repeated conclusion: “ ‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Thornton (2007) 41 Cal.4th 391, 441, quoting People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
Because there was no misconduct, it becomes moot whether review is foreclosed by defense counsel’s failure to object, or whether that failure constituted ineffective assistance of counsel, thereby permitting review of the merits.
DISPOSITION
The order of probation is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.