Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE285974, William J. McGrath, Judge.
IRION, J.
A jury convicted Eduardo Garcia of transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)). The trial court suspended imposition of sentence and placed Garcia on three years' formal probation with various conditions, including that he serve 180 days in local custody.
The jury was unable to reach a verdict on a second count of possession of marijuana for sale. The court declared a mistrial on the possession for sale count and dismissed the charge on its own motion.
Garcia appeals, contending there was insufficient evidence to support the conviction and the prosecutor committed misconduct during closing argument.
FACTS
On the night of November 25, 2008, United States Border Patrol Agent Mark Hansen was monitoring westbound traffic on Interstate 8 near Corte Madera when he noticed a white Ford F 150 pickup truck with an extended cab. The truck caught Hansen's attention because of its size (extended cab), its fluctuating speed and its lack of license plates. Hansen followed the truck for about a mile in his unmarked vehicle.
The truck passed a second white Ford F 150 pickup truck with an extended cab, which was parked on the shoulder of Interstate 8, and, as it did so, the driver tapped his brakes three times. The second white truck pulled onto the freeway, passed Hansen's vehicle and followed the first truck. Hansen suspected the first truck contained narcotics, and the second truck was a "load" or "scout" vehicle. Hansen radioed for backup, and a marked United States Border Patrol unit responded.
After the first truck was stopped, Hansen and another border patrol agent approached it. Hansen smelled a "very pungent" odor of marijuana coming from the vehicle. Garcia was sitting in the front passenger seat; Martin Mora was in the driver's seat. A blue backpack was behind the passenger seat, and a gray backpack was in the rear center console — visible to someone sitting in the front passenger seat. When asked by Hansen what was inside the backpacks, Mora said he did not know. Mora gave Hansen consent to open the backpacks, which contained 18 bindles of marijuana wrapped in clear cellophane. The marijuana weighed 8.87 pounds or a little more than 4,025 kilograms. Its street value was between $30,000 and $40,000.
The border patrol agents placed the marijuana in their evidence room and then contacted the San Diego County Sheriff's Department. Deputy Chris Martinez of the narcotics and smuggling unit responded to the call. Deputy Martinez spoke to Garcia, who told Martinez that he did not know there was marijuana in the truck and that he did not smell it. Martinez was able to smell the marijuana when he was 10 feet from the truck, even after the marijuana-filled backpacks had been removed.
Martinez arrested Mora and Garcia. Garcia had $163, which he said he earned working at different military bases; Garcia also had a military identification that would have allowed him to enter military bases. Martinez did not impound the $163 because it was less than $300, and he believed that Garcia might have obtained it through legitimate means and not through the transportation of illegal drugs. Martinez impounded the cash that Mora had on his person when he was arrested — between $600 and $700 — because the amount exceeded $300 and Martinez believed the cash had been paid to Mora for transporting the marijuana.
Garcia told Martinez that he and Mora had spent a few hours at the Viejas Casino and were heading home when border patrol agents pulled them over. However, at the time, they were traveling westbound on Interstate 8 and had not yet reached any exits for the casino.
The jury was informed that before trial Mora had pleaded guilty to possession of marijuana for sale in connection with the events of November 25. Mora also had a prior conviction of possession of marijuana for sale.
The court took judicial notice of Mora's plea and prior conviction.
DISCUSSION
I
Garcia contends there was insufficient evidence to support his conviction for transporting marijuana. The contention is without merit.
"Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses..., and we review the record in the light most favorable to the judgment..., drawing all inferences from the evidence which supports the jury's verdict." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, citations omitted.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate " 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Given our limited role on appeal, Garcia bears a substantial burden in claiming that there was insufficient evidence to sustain his conviction for transportation of marijuana in excess of 28.5 grams. For if the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
"Transportation of a controlled substance is established by carrying or conveying a usable quantity of a controlled substance with knowledge of its presence and illegal character." (People v. Meza (1995) 38 Cal.App.4th 1741, 1746.) The elements of transporting more than 28.5 grams of marijuana are: the unlawful transportation of marijuana, a controlled substance; knowledge of its presence; knowledge the substance is a controlled substance; and the weight of the marijuana being transported exceeding 28.5 grams. (CALCRIM No. 2361.) "Knowledge by the defendant of both the presence of the drug and its narcotic character is essential to establish unlawful transportation, sale, or possession of narcotics. [Citations.] Such knowledge may be shown by circumstantial evidence." (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474-475 (Rideout).)
The requisite knowledge of presence for illegal transportation may be inferred from joint or exclusive possession of the drug in a moving vehicle. (People v. Rogers (1971) 5 Cal.3d 129, 133-134.) This includes constructive possession, which may be shown when the defendant has some control over the contraband in the physical possession of another. (Id. at p. 134.) Thus, it is sufficient if the defendant's right to exercise dominion and control over the place where the contraband was located is shared with another person. (People v. Valerio (1970) 13 Cal.App.3d 912, 921.)
Here, the marijuana was located in two backpacks; one was behind the passenger seat of the truck, and the other was in the rear center console and was visible to Garcia, who was sitting in the passenger seat. Thus, Garcia not only had access to the location in the truck where the marijuana was found, he also was in closest proximity to it, which supports an inference that he knew of the presence of the marijuana. (Rideout, supra, 67 Cal.2d at p. 475 [probable cause]; Frazzini v. Superior Court (1970) 7 Cal.App.3d 1005, 1017.)
As to the requisite knowledge of the narcotic character of the contraband, the direct evidence was that Garcia claimed he did not know there was marijuana in the truck and did not smell the marijuana. However, there was an abundance of circumstantial evidence to the contrary, including Hansen's testimony that there was a "very pungent" odor of marijuana and Martinez's testimony that he smelled the marijuana when he was 10 feet away from the empty truck. In light of the evidence that the odor of the marijuana in the truck was pervasive, the jury was entitled to disbelieve Garcia's self-serving statement and accept instead Martinez's observation "there was no way you could not know there was marijuana in the vehicle." Garcia's credibility also was suspect because he told Martinez that he and Mora had just spent a few hours at the Viejas Casino and were on their way home even though the pickup truck was traveling toward the casino, not away from it.
The Attorney General has characterized the evidence in support of the conviction as "overwhelming." The trial court, in denying Garcia's motion for a judgment of acquittal pursuant to Penal Code section 1118.1, described the evidence as "thin." On a comparative basis with other cases, we agree with the trial court's characterization of the evidence. Nonetheless, we find the circumstantial evidence presented at trial and the reasonable inferences to be drawn from the evidence support the jury's finding that Garcia knew of the presence and narcotic character of the marijuana found in the truck. Viewing the evidence most favorable to the judgment below, we conclude there was substantial evidence to support the conviction.
II
Garcia next contends the prosecutor committed misconduct in her closing argument by commenting on his decision not to testify at trial, criticizing the completeness of his statements to Martinez, and misstating the evidence. The contention is without merit.
Improper remarks by a prosecutor can " 'so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.' " (Darden v. Wainwright (1986) 477 U.S. 168, 181.) " 'But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Earp (1999) 20 Cal.4th 826, 858 (Earp).)
Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor's improper remarks. (Earp, supra, 20 Cal.4th at p. 858.) If the defendant did not object below, the purported misconduct is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Ibid.) Here, Garcia did not object to any of the instances of purported prosecutorial misconduct. Because an admonition would have cured any possible harm from the claimed instances of misconduct, Garcia has not preserved his appellate claims of prosecutorial misconduct. In any event, we conclude Garcia's contentions lack merit, as discussed below.
At issue are the following comments by the prosecutor:
"There is no evidence that Mr. Garcia got into his friend's car and said 'Whew, what is that? Too much Aqua Velva?' It smelled. He never said anything about it, not that we heard."
"[H]e never said, 'I have never smelled marijuana before. I have never even seen marijuana before.' He didn't deny that he knew how it looked. He didn't deny that he knew how it smelled."
"At no point in time did he ever say, 'I am innocent. I have never seen marijuana. Is that what it looks like?' "
"He also had $163 in his possession. That is a lot of money. Could it have been his little piece of going along with Mr. Mora? Possibly."
Garcia contends the first three of these comments constituted prosecutorial misconduct under Griffin v. California (1965) 380 U.S. 609 (Griffin). The Fifth Amendment privilege against self incrimination forbids "comment by the prosecution on the accused's silence." (Griffin, at p. 615.) "A prosecutor may not directly or indirectly comment on a defendant's failure to testify in his or her own defense." (People v. Mincey (1992) 2 Cal.4th 408, 446 (Mincey).) Griffin error occurs "whenever the prosecutor... comments upon defendant's failure to testify.... However, not every comment upon defendant's failure to present a defense constitutes Griffin error." (People v. Vargas (1973) 9 Cal.3d 470, 475, citation omitted.)
"Although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." (People v. Szeto (1981) 29 Cal.3d 20, 34.) Griffin error does not therefore extend to fair and vigorous commentary on the evidence. (Mincey, supra, 2 Cal.4th at p. 446; People v. Wilson (2005) 36 Cal.4th 309, 337 [prosecutors have wide latitude to discuss and draw inferences from the evidence at trial].)
Placing the first three of the prosecutor's comments listed above in context, we conclude that they did not refer to Garcia's decision not to testify — either directly or indirectly — and did not constitute Griffin error. The prosecutor's comments followed defense counsel's argument in which counsel asked the jury to assume both that Garcia smelled an odor in the truck but could not identify the odor as marijuana, and that Garcia had never been exposed to odor of marijuana, regardless of the likelihood of that assumption. In response, the prosecutor attempted to poke holes in defense counsel's argument and assumptions by use of sarcasm, hyperbole and other liberties of the language, which amounted to no more than vigorous and fair commentary on the evidence. " ' " '[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.' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) There was no Griffin error here.
Garcia's reliance on People v. Guzman (2000) 80 Cal.App.4th 1282 (Guzman) is misplaced, as that case is readily distinguishable. In Guzman, the prosecutor in a hit-and-run and assault case, tried to support the victim's credibility by emphasizing that, while the defendant tried to flee the crime scene, the victim spoke with the police, and came to court and testified. (Id. at pp. 1285-1286.) The prosecutor repeatedly mentioned the victim's willingness to testify during his rebuttal argument and used a demonstrative chart to get the point across. (Id. at p. 1286.) In finding prejudicial Griffin error, the Court of Appeal held the prosecutor's "relentless insistence to the jurors that they consider the contrast between" the victim's testimony and the defendant's silence "could only have served to convince them this was an important point." (Guzman, at p. 1290.)
Garcia also contends the prosecutor's closing comments constituted error under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), which held that the prosecution violates a defendant's due process rights if it uses evidence of a defendant's post-Miranda silence for impeachment purposes at trial. (Doyle, supra, 426 U.S. at pp. 618-619.) " '[S]uch impeachment [i]s fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.' " (People v. Hurd (1998) 62 Cal.App.4th 1084, 1092 (Hurd), citing Anderson v. Charles (1980) 447 U.S. 404, 407-408.) It is thus improper for a prosecutor to comment on an accused's invocation of his or her Miranda rights. Doyle, however, does not apply here because Garcia waived his Miranda rights and spoke with Martinez. And, as the Hurd court stated, "Doyle was [never] meant to preclude the prosecutor from commenting on... [the defendant's] refusal to provide critical details when he had voluntarily waived his right to remain silent. (Hurd, at p. 1094.) "A defendant has no right to remain silent selectively." (Id. at p. 1093.)
Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).
Finally, Garcia contends that the third and fourth comments by the prosecutor listed above constituted prosecutorial misconduct because it was contrary to the evidence presented at trial. Garcia takes the prosecutor's third comment out of context. As explained above, the prosecutor was sarcastically noting that Garcia never proclaimed his ignorance of marijuana to Martinez. As to the prosecutor's fourth comment regarding the $163, the prosecutor merely suggested an interpretation of the evidence, which differed from Martinez's. There was nothing improper with the argument. That is what lawyers do in closing arguments — they argue in favor of an interpretation of the evidence that supports their case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., HALLER, J.