Filed 5/6/15 P. v. Holt CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075904

                   Plaintiff and Respondent,                                     (Super. Ct. No. 13F05074)

         v.

MARVIN HOLT,

                   Defendant and Appellant.




         A jury found defendant Marvin Holt guilty of two counts of being a felon in
possession of a firearm and one count of being a felon in possession of ammunition.
         On appeal, defendant raises the following three contentions: (1) his trial counsel
was ineffective for failing to object to the alleged lay opinion testimony of one of the
officers; (2) the prosecutor committed misconduct in closing argument, and to the extent
this argument is not preserved, it was either futile to object or trial counsel was
ineffective; and (3) the cumulative prejudice violated his due process right to a fair trial.
Disagreeing, we affirm.

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                    FACTUAL AND PROCEDURAL BACKGROUND
       Sacramento Police Officers Andrew Toy and Chris Baptista were following up on
information that defendant, a felon, was staying at a specific house in Sacramento.
Defendant was outside with a woman named Whendi and another man named Ryan.
       Ryan consented to the police searching the house. In the southeast bedroom,
Officer Toy found prescription bottles with defendant’s name, including one that
contained a 600-milligram Ibuprofen blister pack on the headboard of the bed. Also on
the headboard he found a case of .22-caliber live ammunition. The officer saw a
backpack leaning against the bed that contained a loaded .22-caliber Ruger revolver
wrapped in a green towel and another 600-milligram Ibuprofen blister pack that was
similar to the one found on the headboard. Inside the closet of that bedroom he found
mail with defendant’s name and a bolt-action Springfield rifle.
       Based on the fact defendant’s medication was in the room, Officer Toy determined
defendant was staying in that room. And based on “the fact that the medication that was
the blister packs and the pill bottles belonging to [defendant] matched . . . the prescription
medication found in the backpack, we also believe that [defendant] had control and
custody of that backpack.” “And so [defendant was] arrested then for possession of the
firearms and ammunition.”
       Defendant, Ryan, and Whendi were all placed together in a police car. An in-car
camera recorded their conversation. Defendant said to Ryan, “Ryan, make sure you tell
them the gun is yours.” Ryan responded, “Where?” Defendant said, “It’s in the
backpack.” Later, defendant said to Whendi, “Make sure you tell Ryan to claim the guns.
There’s a rifle in the closet that’s his, and a pistol.”
       After being confronted with this recording, defendant told Officer Baptista he
“might find [defendant’s] prints [on the revolver] because [defendant] th[ought] that he
did touch the revolver.”



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                                        DISCUSSION
                                              I
        Trial Counsel Was Not Ineffective For Failing To Object To Officer Toy’s
       Testimony Because Toy Was Not Offering An Opinion On Defendant’s Guilt
       Defendant contends his trial counsel was ineffective in violation of his Sixth
Amendment right to counsel for failing to object to Officer Toy’s testimony that he
“believe[d] that [defendant] had control and custody of th[e] backpack” that was found in
the southeast bedroom. Defendant argues his trial counsel should have objected to this
testimony because it was “improper opinion testimony” that “was tantamount to an
opinion that [defendant] was guilty of knowingly possessing the revolver and
ammunition inside the backpack as well as possession of the rifle found inside the
bedroom closet.”
       Trial counsel’s performance was not deficient because Officer Toy’s testimony
was not an opinion about defendant’s guilt, but rather, provided the reason why defendant
was arrested. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674,
693] [deficient performance is the first prong of an ineffective assistance of counsel
claim].) This interpretation of the record is supported by the trial transcript that reads as
follows:
       “Q.    [The Prosecutor]: Officer, based on your search of the room and the
investigation that you conducted, what happened next?
       “A.    [Officer Toy]: Well, being that [defendant]’s medication was in the room,
we determined that he was staying in that room. Also, the fact that the medication that
was the blister packs and the pill bottles belonging to [defendant] matched the backpack,
the prescription medication found in the backpack, we also believe that [defendant] had
control and custody of that backpack.
       “Q.    [The Prosecutor]: And so was [defendant] arrested then for possession of
the firearms and ammunition?

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       “A.    [Officer Toy]: Yes, he was.
       “ [The Prosecutor]: Thank you. No further questions at this time.”
       Viewed in the light of the prosecutor’s questions, Officer Toy was not giving an
opinion about defendant’s guilt but was testifying as to why he decided to arrest
defendant. Testimony about what led an officer to arrest a defendant is admissible at
trial. (People v. Marsh (1962) 58 Cal.2d 732, 738.) As such, trial counsel was not
deficient in failing to object to Officer Toy’s testimony.
                                               II
   Alleged Prosecutorial Misconduct In Closing And Ineffective Assistance Of Counsel
       Defendant contends the prosecutor committed misconduct four times in closing
argument by misstating the law and facts, violating his federal right to due process of
law. To the extent these contentions were not preserved on appeal because trial counsel
failed to object to all of the alleged misconduct, defendant argues alternatively futility in
objecting or ineffective assistance.
                                               A
              Prosecutor’s Argument That Defendant Admitted He Touched
               And Held The Revolver Meant He Admitted To Possessing It
       In two alleged instances of prosecutorial misconduct, defendant challenges the
following statements that the prosecutor made in rebuttal closing argument, claiming they
were both incorrect statements of law and evidence:
       “When [defendant] told that officer that he actually touched the revolver, all this
goes completely out the window. Okay? Because that’s what we call actual possession.
And with actual possession, that whole right to touch it, right to control it, all that stuff
doesn’t matter anymore.
       “When you actually possess it, that -- understand that we commonly use it in
everyday language about possessing something, that you hold it in your hand. In the law,
we call that actual possession.

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       “Then all of this stuff about the right to possess doesn’t even matter anymore
because you are actually possessing it.
       “So [defendant] already told you that he’s guilty of Count One [possession of the
loaded Ruger .22-caliber revolver] all by himself. I held that revolver in my hand. I
actually possessed that revolver. He knew he was possessing it because it was in his
hand, and he had told the cop that he possessed it.”
       Defendant contends this was an incorrect statement of law because touching does
not prove legal possession and it was an incorrect statement of evidence because
defendant said only “you might find his prints [on the revolver] because he thinks that he
did touch the revolver.”
       There was no objection to this argument, although just before this argument, trial
counsel had objected as “[i]mproper argument” the prosecutor’s argument that “when she
[trial counsel] stands here and tells you access does not mean possession, that is a
complete misstatement of the law.” In response, the court told the jury the following: “I
will tell you the same thing I said when defense counsel is making the argument, this is
the instruction you heard. [¶] You will make your determination. They have to prove
the defendant had control over or the right to control the item. That’s what possession is
defined as.”
       To circumvent the lack of objection, defendant on appeal claims futility in
objecting, noting that shortly before this exchange, when defense counsel objected to
another statement as “[m]isstatement of the law,” the court instructed the jury as follows:
“I feel like a broken record. Nothing the attorneys told you is evidence. If your
recollection is different than what you are being told, you are to rely on your recollection.
What the attorneys say doesn’t provide you any evidence.”
       There was no futility to objecting because, although the court noted it “fe[lt] like a
broken record,” it still instructed the jury that arguments of counsel were not evidence.



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There is no reason the court would not have given a similar instruction had defense
counsel objected.
       There was also no ineffective assistance of counsel in failing to object. As to
failing to object to the prosecutor’s arguments that touching equates to legal possession
and that defendant held the revolver, defense counsel reasonably could have chosen to let
the comments lie and not reinforce them because she had already sufficiently addressed
them in her closing argument. Specifically, defense counsel argued in closing:
       “And if I touch it, does that mean I possess it? No. Because he [i.e., another
person beside defendant who actually had possession] had not relinquished the right to
control. Okay? [¶] What did [defendant] say? He said, I may have touched it. There
may be prints. Okay. [¶] There is nothing to suggest that he picked it up, carried it
around, nothing like that. There is a paucity of evidence with regard to that specific
aspect. He didn’t say I picked it up. I cradled it. I fired it. No, he said he may have
touched it.”
       Because counsel’s decision was a reasonable, tactical one, her performance was
not ineffective. (See People v. Frierson (1979) 25 Cal.3d 142, 158 [a reasonable tactical
decision does not constitute ineffective assistance of counsel].)
                                             B
                    Prosecutor’s Argument That Access Equals Possession
       In another two alleged instance of misconduct, defendant takes issue with the
following two statements that the prosecutor made in closing argument, arguing that the
prosecutor misstated the law, claiming access equals possession:
       One, “[My] [d]ad tosses me the keys. He says, if you guys [i.e., the prosecutor,
his brother, the brother’s wife, his fiancee] need to go anywhere, take my car or move it
out of the way so you can take your brother’s car. [¶] All right. At that very moment,
who possess[es] my dad’s car? I do, my brother does, my brother’s wife does, my
fiancee does, my dad does, and my mom does. [¶] Why? Because any one of us can

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take those keys and move that car. We all have the right to access and control the
vehicle. We all have possession of it.”
       There was no misconduct here because this argument was part of the broader
argument that defendant may have constructively possessed the loaded Ruger .22-caliber
revolver in count one. In that regard, the prosecutor had also argued, “You don’t actually
have to be touching something to possess it. In fact, that’s why two or more people can
possess something at the same time. [¶] All that is required, and this is what it says. A
person does not actually have to hold somebody [sic] to possess it. It is enough if the
person has control over it or the right to control it, either personally or even through
another person.” Consistent with this argument, the jury was instructed that, “[t]wo or
more people may possess something at the same time. A person . . . does not have to
actually hold or touch something to possess it. It is enough if the person has control over
it or the right to control it, either personally or through another person.”
       Two, defendant takes issue with the prosecutor’s statement in rebuttal as follows:
“I challenge you to read through this instruction and every other one until -- find where it
says that access does not equal possession.” Defendant argues this statement was
“inappropriate burden shifting.” Not so. The prosecutor was simply responding to trial
counsel’s argument in which trial counsel referred to the instructions and said, “access in
and of itself does not constitute possession.” “You can look at the law and see if what I
am saying is correct. [¶] But I’m telling you, just because someone has access doesn’t
necessarily mean that that person has possession.” The prosecutor was also reinforcing
the argument that defendant’s access to the firearms in the bedroom and his backpack
supported the finding that he had constructive possession of the firearms.
                                              C
             Prosecutor’s Argument Allegedly Shifting The Burden Of Proof
       Defendant takes issue with the following argument from the prosecutor in rebuttal
(to which trial counsel did not object) that defendant claims “suggested the defense had a

                                               7
burden to establish reasonable doubt -- that reasonable doubt needed to be supported by
reasonable evidence.” The prosecutor’s argument was as follows: “And so when you
consider the evidence in this case, and you consider whether or not you have a doubt and
if that equates to a reasonable doubt, you’ve got to look at the evidence that supports that
doubt. Because if that evidence isn’t reasonable, it’s not supported, then the doubt isn’t
reasonable. It’s a possible doubt. It’s an imaginary doubt. It’s exactly what the law tells
you is not the type of doubt that should stop you from believing that the charge has been
proven. Okay.” (Italics added.)
       Trial counsel was not ineffective for failing to object. Although this argument
could reasonably be viewed as “claiming there must be some affirmative evidence
demonstrating a reasonable doubt,” which is an incorrect statement of the law (People v.
Hill (1998) 17 Cal.4th 800, 831), trial counsel could have had a reasonable, tactical basis
for not objecting.
       The trial court had already instructed the jury as follows: “A defendant in a
criminal case is presumed to be innocent. This presumption requires the People prove the
defendant guilty beyond a reasonable doubt. . . . [¶] . . . The evidence need not eliminate
all possible doubt because everything in life is open to some possible or imaginary
doubt.” The trial court had also previously instructed the jury as follows: “If you believe
the attorneys’ comments on the law conflict with my instructions, you must follow my
instructions.”
       Trial counsel could have decided not to draw attention to the prosecutor’s
argument by objecting and instead rely on the correct instructions the court already gave.
Because counsel’s decision was a reasonable, tactical one, her performance was not
ineffective. (People v. Frierson, supra, 25 Cal.3d at p. 158.)




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                                             III
                           There Was No Cumulative Prejudice
       Defendant contends the cumulative effect of Officer Toy’s alleged erroneous lay
opinion testimony and the prosecutor’s misstatements of law and fact deprived him of his
due process right to a fair trial. But we have found Officer Toy’s testimony was not
objectionable and to the extent the prosecutor made some misstatements of law and fact,
trial counsel either highlighted the correct evidence for the jury and/or the court correctly
instructed the jury. Thus, defendant was not deprived of his due process right to a fair
trial. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption
underlying our constitutional system of trial by jury is that jurors generally understand
and faithfully follow instructions”].)
                                         DISPOSITION
       The judgment is affirmed.




                                                         ROBIE                 , J.

We concur:



      RAYE                  , P. J.



      BLEASE                , J.




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