People v. Morales

• Citation: 25 Cal.4th 34,18 P.3d 11,104 Cal.Rptr.2d 582
• Decision Date: 05 March 2001
• Docket Number: No. S059461.,S059461.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Hans MORALES, Defendant and Appellant.

104 Cal.Rptr.2d 582

25 Cal.4th 34

18 P.3d 11

The PEOPLE, Plaintiff and Respondent, v. David Hans MORALES, Defendant and Appellant.

No. S059461.

Supreme Court of California.

March 5, 2001.

Certiorari Denied October 1, 2001.

Richard Jay Moller, Garberville, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Carol Wendelin Pollack, Assistant Attorney General, Jaime L. Fuster, Brenda G. O'Neil, William T. Harter and Jeffrey Kahan, Deputy Attorneys General, for Plaintiff and Respondent.

Certiorari Denied October 1, 2001. See 122 S.Ct. 133.

MOSK, J.

We granted review to decide whether a prosecutor committed prejudicial misconduct in his summation to the jury in a criminal case. We conclude that the prosecutor's actions do not require that defendant's conviction be reversed.

I

In an information filed December 8, 1995, defendant was charged with violating Health and Safety Code section 11377, subdivision (a), by possessing phencyclidine (PCP). (See also id., § 11055, subd. (e)(3)(A).) It was alleged that he had two prior (Pen.Code, § 667, subds. (b)-(i); id., § 1170.12, subds. (a)-(d)) robbery (id., § 211) convictions and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

On the evening of November 3, 1995, defendant's wife asked Los Angeles police officers to help her husband, who was outside in the police station parking lot. The officers found him sitting in the opening of the sliding door of a van that was parked askew with the driver's door also open. The officers ordered him to stand up and put his hands on his head. He slowly complied, but only after they gave the order several times. They noticed that he was sweating, had a blank stare, and exuded an odor revealing the presence of ether, in turn revealing the use of phencyclidine. They removed a partly exposed vial from under the driver's seat, containing a liquid that also exuded a strong ethereal odor attributable to PCP.

In the station, a police officer trained to recognize signs of drug use observed defendant and ran tests on him. One test, however—of urine to detect PCP's presence—defendant ultimately refused to take (after initially agreeing to do so), even after a police officer admonished him that he had no constitutional right to avoid it.¹

The officer determined that defendant was under the influence of PCP. The vial's contents also were tested. An expert witness testified that the vial held a solution containing about three cubic centimeters of PCP.

A police officer who helped arrest defendant testified he did not know who owned the van or who had driven it to the police station.

Following the presentation of evidence at trial, the jury was instructed regarding PCP possession: "Every person who possesses ... phencyclidine ... is guilty of the crime of illegal possession of a controlled substance, in violation of Health and Safety Code section 11377(a).

"In order to prove such crime, each of the following elements must be proved: one, a person exercised control [over] or the right to control a certain controlled substance; two, such person had knowledge of its presence; three, such person had knowledge of its nature as a controlled substance; and, four, the substance was in an amount sufficient to be used as a controlled substance."

"Actual possession requires ... direct physical control ..."

With those impending instructions in mind, the parties presented their summations.

In his initial closing argument, the prosecutor said, "you're here to make one decision, and that is on November 3rd, 1995, was the defendant in possession of a controlled substance.... [¶] As you look at this evidence, certainly, the most compelling evidence is that the defendant was under the influence of P.C.P. And you think to yourself, `... is there any way on this planet you could physically become under the influence of P.C.P. if you didn't possess it at some time before you became under the influence?' It's kind of hard to sit and get drunk on beer if you don't have any beer; okay?" The prosecutor summarized the evidence that defendant was under the influence of PCP when the police found him, "and in the van ... is a vial of P.C.P. [¶] Now, you ... [might] say, `Well, gee, how do we know that was the vial and we know he's on P.C.P.?' We know he got there by being in possession of P.C.P. How do we know that was the P.C.P.? Maybe he had another bottle at home, or maybe he had five other bottles at home. That's not the issue. [¶] The only issue for you to decide, ladies and gentlemen, is, do you believe ... that on ... or about November the 3rd, 1995, the defendant was in possession of ... P.C.P.? [¶] And it does not necessarily require that you all unanimously agree that it was some P.C.P. from this vial. That is simply additional evidence that what he was under the influence [of] was clearly P.C.P., and in order to get under the influence, he had to possess P.C.P. Pretty simple process. [¶] ... [¶] ... [T]he evidence ... establishes that the defendant had to have been in possession of P.C.P. in order to get under the influence of P.C.P. on November the 3rd...."

Defense counsel made his closing argument, in which he tried to persuade the jury that the prosecution had presented no direct evidence that defendant possessed PCP—"[n]obody saw anybody in direct control of [the vial]"—and that the circumstantial evidence was insufficient to convict him. Counsel emphasized that "unless the proved circumstances are, one, not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion, a finding of guilty as to any crime may not be based on circumstantial evidence." There was "[n]o proof that the van was owned by [defendant] legally or registered to him. No proof that he even drove that van."

"Now, we have a vial here that was found underneath the driver's seat. Mr. Morales was seated ... in the back.... [¶] ... [¶] We don't know who put the van there.... [¶] We don't know how long that vial was there. There were no fingerprints taken from the vial." He asked why, if the state wanted to solidify its case, it had failed to take fingerprints. "Remember what this case is here. The charge is possession." "Where is the evidence beyond a reasonable doubt that Mr. Morales exercised control over that vial?"

The prosecutor responded: "The reality here is that Mr. Morales is sitting in this van.... [¶] ... And Mr. Morales is wasted.... He is intoxicated on P.C.P. [¶] And then, of course, one could speculate. `Well, gee, how do we know that this was not an immaculate intoxication? That he was simply overcome with P.C.P. spirit or something, out of outer space or something.' [¶] We know because we have a lifetime of experience.² You don't get drunk unless you take in the intoxicant. You can't take in the intoxicant if you don't have it. Very simple. Very simple deductive process. I can't drink beer until I'm drunk unless I have beer to drink. [¶] And [defense] counsel adeptly says there are the elements of the offense of possession] one must exercise control in order to ingest the intoxicant. [But] I've got to be in control of it, unless, of course, someone is holding me down and force-feeding me this intoxicant; okay? But you cannot speculate on things, ... what might have been or could have been. You have to rely on the evidence.

"Now, you have to be aware of the [drug's] presence. It's a little hard to get yourself loaded if you're not aware of the presence of what you're getting yourself loaded on. And the nature of it. If I sit down with a six-pack of Budweiser, and I drink that six-pack of Budweiser, I know the nature of it. And if I get intoxicated on that six-pack, it's because I knew the nature of it. That's why I drank it. [¶] And it has to be an amount sufficient to be used as a controlled substance.... He was high. He was intoxicated. [¶] ... He had certainly enough to get loaded on it. If he didn't, he would have been sober. So all of those elements are conclusively proven based upon the condition that Mr. Morales is in at the time he's found....

"Now, the vial of P.C.P. in the van in which ... Mr. Morales is found is certainly circumstantial evidence, that it is P.C.P. we're talking about.... [¶] If someone finds me [lying] in the street, smelling of beer and heavily intoxicated, and I am surrounded by Budweiser bottles, it's going to be pretty easy to figure out what substance it is that got me drunk.... Although, maybe I didn't get drunk on one of those bottles or two of those bottles; it may have been one that's over behind the bushes that added the final touch. That's not the issue here, so don't be misled, ladies and gentlemen."

The prosecutor reminded the jury of the evidence that both defendant and the vial exuded the "distinct" odor attributable to a PCP solution.

In sum, having referred to the jurors' life experience, the prosecutor argued that they could conclude defendant consumed PCP voluntarily, knowing what it was, for the purpose of intoxicating himself with it.

Along with those we have already described, the trial court instructed the jurors in other matters relevant here.

Regarding its role and that of the attorneys, the trial court orally instructed, "You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the attorneys in their arguments, or at any other time during the trial, conflicts with my instructions on the law, you must follow my instructions and disregard what they say regarding the law." (The written instruction omitted the last eight words.)

And regarding the method of evaluating circumstantial evidence, the trial court instructed, "a finding of guilt as to any crime may not be...