[any]thing." Although all drug traffickers use "blind mules," Professor Alfaro opined that
70 percent of the "ones who use blind mules are smaller organizations."
Professor Alfaro noted there are thousands of "irregular vehicles" in Tijuana that
come from the United States without "regular plates." According to Professor Alfaro,
there have been instances when some of these cars come into Mexico with drugs already
inside of them, which he referred to as a "blind mule by accident." He testified that after
a blind mule crosses the border, the drug traffickers will monitor the vehicle, including by
GPS, and that once the vehicle is parked, they remove the drugs or just steal the car.
On cross-examination, Professor Alfaro confirmed that when he was hired by the
defense, he was specifically asked to review the file and determine whether he could
"testify that this was a blind mule case." Professor Alfaro also testified it was "easy" and
"lucrative" but "very risky" to become a mule in Mexico to bring drugs across the border.
Professor Alfaro admitted on cross-examination that the risk to drug traffickers
using a paid mule was significantly less than using a blind mule; that when he reviewed
this case, he initially told defense counsel that the "quantity of drugs of your client
exceeds what a blind mule usually has"; that drug traffickers are "far more likely to use a
blind mule for a marijuana case as opposed to a hard narcotics case"; and that when drug
traffickers use "blind mules," they specifically target people "that aren't going to trigger
any alarms at the border," such as people who "cross all the time."
I
11
Prosecutorial Misconduct
A. Brief Additional Background
During closing argument, the prosecutor in rebuttal made the following
statements: "As the evidence comes in -- and the evidence has come in -- and when you
walk into that jury room and discuss the case -- discuss the evidence in this case, once the
evidence proved to you beyond a reasonable doubt that [defendant] committed the crime,
there's no presumption of innocence. It's -- it goes away as the evidence comes in and the
evidence shows you that he's guilty. The presumption of innocence doesn't just stay there
forever. [¶] The evidence proves to you that he's committed the crime and is guilty
beyond a reasonable doubt." (Italics added.)
The record shows the court instructed the jury as follows with CALCRIM No.
103, which explains reasonable doubt and the presumption of innocence:
"I will now explain the presumption of innocence and the People's burden of
proof. The defendant has pleaded not guilty to the charges. The fact that a criminal
charge has been filed against the defendant[] is not evidence that the charge is true. You
must not be biased against the defendant[] just because [he] has been arrested, charged
with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant guilty beyond a
reasonable doubt. Whenever I tell you the People must prove something, I mean they
must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶]
Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that
12
the charge is true. The evidence need not eliminate all possible doubt because everything
in life is open to some possible or imaginary doubt. [¶] In deciding whether the People
have proved their case beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received throughout the entire trial. Unless the
evidence proves the defendant[] guilty beyond a reasonable doubt, [he] is entitled to an
acquittal and you must find [him] not guilty."
B. Guiding Principles and Analysis
The case of People v. Goldberg (1984) 161 Cal.App.3d 170 (Goldberg), which
defendant neglected to cite either in his opening brief or—even after discussed at length
by the People in its respondent's brief—in his reply brief, informs our decision.1 There,
the prosecutor declared during closing argument: " 'And before this trial started, you
were told there is a presumption of innocence, and that is true, but once the evidence is
complete, once you've heard this case, once the case has been proven to you—and that's
the stage we're at now—the case has been proved to you beyond any reasonable doubt. I
mean, it's overwhelming. There is no more presumption of innocence. Defendant
Goldberg has been proven guilty by the evidence. Thank you.' " (Id. at p. 189.) In
concluding these statements were not misconduct, the Goldberg court found the
1 For future reference, we strongly encourage appellate counsel to review the rules governing an attorney's ethical obligations to advise a tribunal of all legal authority relevant to an issue, as opposed to authority that merely supports a client's position on that issue. (See, e.g., In re Reno (2012) 55 Cal.4th 428, 510 [noting "[a]ttorneys are officers of the court and have an ethical obligation to advise the court of legal authority that is directly contrary to a claim being pressed," citing among other authority Rule 5– 200 of the California Rules of Professional Conduct].) 13
prosecutor was merely restating, "albeit in a rhetorical manner," the otherwise
noncontroversial point that a defendant is presumed innocent " 'until the contrary is
proved.' " (Ibid.)
Our high court in People v. Booker (2011) 51 Cal.4th 141 (Booker)—which again
defendant neglected to cite—also guides our decision on this issue. There, the prosecutor
made the following statements to the jury during the guilt phase of closing argument: " 'I
had the burden of proof when this trial started to prove the defendant guilty beyond a
reasonable doubt, and that is still my burden. It's all on the prosecution. I'm the
prosecutor. That's my job. [¶] The defendant was presumed innocent until the contrary
was shown. That presumption should have left many days ago. He doesn't stay
presumed innocent.' " (Id. at p. 183, italics added.)
In rejecting the argument the above-italicized statement was prosecutorial
misconduct, our high court approvingly cited Goldberg when it concluded as follows:
" 'Once an otherwise properly instructed jury is told that the presumption of innocence
obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty
until and unless they, as the fact-finding body, conclude guilt was proven beyond a
reasonable doubt.' (Goldberg, supra, 161 Cal.App.3d at pp. 189–190, original italics.)
We agree. Although we do not condone statements that appear to shift the burden of
proof onto a defendant (as a defendant is entitled to the presumption of innocence until
the contrary is found by the jury), the prosecutor here simply argued the jury should
return a verdict in his favor based on the state of the evidence presented." (Booker,
14
supra, 51 Cal.4th at p. 185.)
While unable to cite to legal authority (ostensibly) against his position, including
authority from our high court, defendant was able to cite to the case of People v. Dowdell
(2014) 227 Cal.App.4th 1388 (Dowdell), which (ostensibly) supports his position. There,
during closing argument, the prosecutor twice stated without objection that the
" 'presumption of innocence is over' " and that the defendant " 'has gotten his fair trial.' "
(Id. at p. 1407.)
The defendant in Dowdell argued defense counsel was deficient for failing to
object to these statements. The Dowdell court agreed, noting the presumption of
evidence continues not only through the presentation of evidence, but also during
deliberations and until a verdict is reached. (Dowdell, supra, 227 Cal.App.4th at
p. 1406.) The Dowdell court found Goldberg distinguishable because the prosecutor in
the case before it had twice made what the court considered to be a clear misstatement of
the law regarding the presumption and because the prosecutor also stated the defendant
had gotten a "fair trial," which "implied that the 'fair trial' was over, and with it, the jury's
legal obligation to respect the presumption of innocence." (Dowdell, at p. 1408.) Thus,
the Dowdell court concluded defense counsel should have objected, and, if such an
objection had been made, the court would have sustained that objection and instructed the
jury that the presumption "remained in effect." (Ibid.) However, because the defendant
could not show prejudice, the court in Dowdell held defense counsel was not ineffective.
(Id. at pp. 1408-1409.)
15
Here, the prosecutor's statements are far more innocuous than the ones that
withstood scrutiny in Goldberg and Booker, and they also are distinguishable from those
in Dowdell, where the prosecutor misstated the law in arguing the presumption was
reversed after defendant had gotten a " 'fair trial.' " (See Dowdell, supra, 227
Cal.App.4th at p. 1408.)
Indeed, the statements by the prosecutor in Goldberg suggested the presumption of
innocence was lost when the trial was over, but before deliberations commenced; and in
Booker, the statements suggested that presumption was lost in the middle of trial, based
on the weight of the evidence. In contrast, the statements by the prosecutor in the instant
case suggested the presumption of innocence would be gone only after the jury began
deliberations in the jury room and considered the evidence of guilt.
We thus conclude the prosecutor's argument in the instant case was not an
incorrect statement of the law and was, in any event, merely a rhetorical statement about
the weight of the evidence of guilt. However, like courts before us (see Booker, supra,
51 Cal.4th at p. 185), we do not condone any statements that even remotely imply the
presumption of innocence is lost before the jury returns a verdict.2
2 In light of our decision on this issue, we deem it unnecessary to address the People's alternate contention—which appears to have merit—that defendant forfeited his claim of alleged prosecutorial misconduct by his counsel's failure to object to the offending statements. (See People v. Panah (2005) 35 Cal.4th 395, 462 [noting to " 'preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury' "].) 16
II
Evidentiary Issues
A. Hearsay
Defendant contends the court prejudicially erred when it ruled to admit testimony
from Agent Richardson that he performed a record search on the Internet that established
the make and model of defendant's Fiesta was never sold as a new car in the United
States.
1. Brief Additional Background
Professor Alfaro testified he had two "hypotheses" regarding how the drugs got
into defendant's car without defendant's knowledge: "One -- [this] is the strongest
hypothesis, a main one -- is that Mr. Romo bought a car, a secondhand car, a Fiesta Ford,
2004. It's an old car in Tijuana. [¶] I don't know how much he paid for it. It is not too
much money. [¶] . . . [¶] And he went to a mechanic shop to repair the brakes. [¶] After
that he cross twice the border. [¶] And the third time he cross, the car was loaded with
drugs. [¶] My hypothesis is that this man bought a secondhand car that was import[ed]
from the US side, loaded with drugs.
"The other hypothesis -- and it is [a] very weak hypothesis -- is that when he went
to the mechanic shop to repair the brakes of his car, the mechanics load[ed] the car with
drugs. [¶] But it's a weak hypothesis because, after that process, he cross twice the
border. [¶] And doesn't sound -- it's a weaker hypothesis because, if those mechanic
shops were part of a drug trafficking ring, then they will follow the car the first time he
17
cross. [¶] But he cross twice, thinking that he was already carrying drugs, thinking that
he bought a car import[ed] from US loaded with drugs."
In rebuttal, Agent Richardson was asked whether the "exact model" of the Ford
Fiesta driven by defendant across the border "was even sold in the United States." The
record shows the defense objected to the question on the grounds of relevance and lack of
foundation. The court in response stated, "Lay a further foundation." Agent Richardson
testified that both he and other officers "research[ed]" the model of defendant's car; that
he used the Internet to do the research; and that he was "pretty familiar" with cars given
he is involved in cases where cars are used to smuggle drugs across the border.
The record shows when Agent Richardson was again asked whether the model of
Ford Fiesta defendant was driving was sold as a new car in the United States, the defense
again objected, but this time only on the ground of lack of foundation. The court
overruled the objection, and Agent Richardson confirmed that model was not sold as a
new car in the United States, but rather was a "Mexico-only version."
2. Forfeiture
"Evidence Code section 353, subdivision (a) allows a judgment to be reversed
because of erroneous admission of evidence only if an objection to the evidence or a
motion to strike it was 'timely made and so stated as to make clear the specific ground of
the objection.' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.) Courts have
consistently held that a defendant's failure " ' " 'to make a timely and specific objection'
on the ground asserted on appeal makes that ground not cognizable." ' " (Ibid.)
18
Following the same logic, an " 'appellate court's review of the trial court's
admission of evidence is then limited to the stated ground for the objection. (Evid. Code,
§ 353.)' (People v. Kennedy (2005) 36 Cal.4th 595, 612.) 'What is important is that the
objection fairly inform the trial court, as well as the party offering the evidence, of the
specific reason or reasons the objecting party believes the evidence should be excluded,
so the party offering the evidence can respond appropriately and the court can make a
fully informed ruling. If the court overrules the objection, the objecting party may argue
on appeal that the evidence should have been excluded for the reason asserted at trial, but
it may not argue on appeal that the court should have excluded the evidence for a reason
different from the one stated at trial. A party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct.' (People v. Partida (2005) 37 Cal.4th
428, 435.)" (People v. Abel (2012) 53 Cal.4th 891, 924 (Abel), italics added; see People
v. Partida (2005) 37 Cal.4th 428, 435 [noting " 'the objection must be made in such a
way as to alert the trial court to the nature of the anticipated evidence and the basis on
which exclusion is sought, and to afford the People an opportunity to establish its
admissibility' "].)
Here, the record clearly shows defense counsel objected only on relevancy and
foundational grounds to Agent Richardson's testimony that the make of the Ford Fiesta
driven by defendant was never sold as a new car in the United States. The record also
clearly shows that defendant is not challenging the admission of this evidence on such
grounds, but rather only on the ground such evidence was hearsay. We thus conclude
19
defendant has forfeited this claim on appeal, inasmuch as his failure to object at trial on
hearsay grounds precluded the prosecutor from establishing its admissibility.
Perhaps anticipating this conclusion, defendant also contends defense counsel was
ineffective for failing to object on hearsay grounds to this evidence. We turn next to that
issue.
3. Ineffective Assistance of Counsel
It is well recognized that to prevail on an ineffective assistance of counsel claim, a
defendant must prove two elements: (1) trial counsel's deficient performance; and (2)
prejudice as a result of that performance. (Strickland v. Washington (1984) 466 U.S. 668,
687.) Deficient performance is established if the record demonstrates counsel's
representation "fell below an objective standard of reasonableness under the prevailing
norms of practice." (In re Alvernaz (1992) 2 Cal.4th 924, 937.)
Further, even where it appears counsel's performance was deficient, the judgment
must "be upheld unless the defendant demonstrates prejudice, i.e., that, ' " 'but for
counsel's unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.' " ' " (People v. Anderson (2001) 25 Cal.4th 543, 569 (Anderson).)
Here, assuming without deciding that defense counsel's performance was deficient
for failing to object on hearsay grounds to the testimony of Agent Richardson that his
research showed the model of the Ford Fiesta driven across the border by defendant was
20
never sold as a new car in the United States,3 we conclude there is no reasonable
probability the outcome of the trial would have been different.
That is, merely because Agent Richardson testified this model of car was not
initially sold in the United States does not mean ipso facto that this particular car never
entered the United States, which, under Professor Alfaro's first "hypothesis," was when
the drugs were most likely placed inside. Indeed, the only evidence in the record
regarding the car's history was that defendant purchased it in Tijuana about three months
before his arrest from a "gentleman" on the "streets." Thus, it is pure speculation whether
this car was ever in the United States, regardless of whether that model of car was sold as
a new car in the United States. In short, we conclude the challenged testimony of Agent
Richardson is of little or no relevance, and, thus, there is not a reasonably probability that
its admission or exclusion affected the outcome of this case.
Our conclusion on this issue is further bolstered by the fact that during closing,
defense counsel not once relied on Professor Alfaro's hypothesis that defendant's car
entered Mexico from the United States. Instead, defense counsel relied on Professor
Alfaro's "weaker" hypothesis that the drugs could have been placed in defendant's car
when defendant left it with a mechanic for about three hours, about eight days before his
3 In formulating his or her opinion and relating it to the jury, it is well established that an expert may rely on hearsay evidence and, within the discretion of the trial court, even recite the hearsay statements verbatim. (People v. Valdez (1997) 58 Cal.App.4th 494, 509.) Furthermore, "[i]f the statement is received as proof of something other than the truth of the statement itself, it is not hearsay." (People v. Harvey (1991) 233 Cal.App.3d 1206, 1220 [concluding trial court did not err in admitting into evidence "pay-owe ledgers" because they were admitted as circumstantial evidence of cocaine sales and conspiracy, not for the truth of their contents].) 21
arrest. Clearly, the jury rejected that hypothesis and its underlying theory that defendant
was merely a blind mule when it reached guilty verdicts.
On this record, we reject defendant's contention his counsel was ineffective for
failing to object this particular testimony by Agent Richardson. (See People v. Cox
(1991) 53 Cal.3d 618, 699 [noting that failure of either prong is fatal to establishing
ineffective assistance of counsel], disapproved on another ground as stated in People v.
Doolin (2009) 45 Cal.4th 390, 421.)
B. Opinion Testimony
Defendant next contends the court erred when it allowed Agent Petonak to opine
that defendant was not a blind mule under the circumstances of this case. We disagree.
First, as before, defendant has forfeited this claim because there was no objection
to Agent Petonak's opinion that defendant was not a blind mule. (See Abel, supra, 53
Cal.4th at p. 924.)
Second, defendant's counsel was not ineffective for failing to object to such
testimony. Indeed, while it is true that an expert cannot opine concerning the guilt or
innocence of a defendant, " '[t]estimony 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 fact.' (Evid. Code, § 805 . . . .)" (People v. Vang (2011) 52 Cal.4th 1038,
1048.)
Here, Agent Petonak did not opine on defendant's guilt or innocence. Rather, he
relied on various factors to opine that defendant was not a blind mule, including: the
22
quantity, type and location of the drugs found in defendant's car; defendant was neither a
United States citizen nor did he have SENTRI clearance; defendant's car was licensed in
Mexico; defendant did not frequently cross the border in his car, and, thus, there was no
predictable pattern in contrast to someone who lived in Mexico and worked in the United
States; and the lack of a GPS device to track the large quantity of drugs found in the car.
Such testimony was not improper. (See Evid. Code, § 801, subd. (a) [providing expert
witness 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"].)
Although defendant takes issue with Agent Petonak's testimony, we note that his
own expert, Professor Alfaro, also relied on many of these same factors in discussing a
"typical" blind mule case. Defendant also does not take issue with the fact that Professor
Alfaro opined that he was a blind mule, based on two "hypotheses" as discussed ante. In
our view, what is "sauce for the goose is sauce for the gander." We thus reject
defendant's contention there was error when Agent Richardson testified defendant was
not a blind mule under the circumstances of this case.
III
Additional Presentence Credits
Finally, defendant contends he is entitled to seven additional presentence credits
because the court in its May 8, 2015 pronouncement of judgment order relied on the
probation report that mistakenly provided defendant was arrested on November 25, when
in fact he was arrested on November 22, 2014. The People agree, as do we. Thus,
23
defendant was in actual custody for 168 days, as opposed to the 165 days provided in the
May 8 order. Defendant is therefore entitled to 168 days of actual credit and 168 days of
conduct credit under Penal Code section 4019, subdivision (f), for a total of 336 days.
DISPOSITION
The trial court is directed to correct its May 8 pronouncement of judgment (and
the abstract of judgment, which was not included in the record) to show an award of 168
days of actual credit and 168 days of conduct credit, for a total of credit of 336 days.
(Pen. Code, § 4019, subd. (f).) The court is further directed to notify the Department of
Corrections and Rehabilitation of this correction. In all other respects, the judgment of
conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
NARES, J.
McDONALD, J.
24
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction, holding that the prosecutor's closing argument did not constitute misconduct and that the trial court did not commit prejudicial error in its evidentiary rulings, while also directing the trial court to award the defendant seven additional days of presentence credit.
Issues
Whether the prosecutor committed misconduct by allegedly reversing the presumption of innocence during closing argument.
Whether the trial court erred in admitting hearsay evidence regarding the vehicle's model availability in the United States.
Whether the trial court erred in allowing expert testimony opining that the defendant was not a 'blind mule.'
Whether the defendant was entitled to additional presentence credits.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt.”
“We thus conclude the prosecutor's argument in the instant case was not an incorrect statement of the law and was, in any event, merely a rhetorical statement about the weight of the evidence of guilt.”