Filed 8/5/14 P. v. Nieves CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138955
v.
SAMUEL NIEVES,                                                       (Alameda County
                                                                     Super. Ct. No. CH53267)
         Defendant and Appellant.


         Defendant Samuel Nieves was convicted of being under the influence of a
controlled substance and possession of a controlled substance after he was found
behaving suspiciously with a hydrocodone pill in his pocket. During voir dire, the
prosecutor made several statements about punishment. Defendant contends these
statements constituted prosecutorial misconduct and seeks a new trial on the possession
charge.1 Because we find defendant’s challenge waived and the prosecutor’s statements
harmless, we affirm.
                                               I. BACKGROUND
         Defendant was charged in an information, filed January 22, 2013, with possession
of hydrocodone (Health & Saf. Code, § 11350, subd. (a)) and being under the influence
of methamphetamine (Health & Saf. Code, § 11550, subd. (a).)
         During voir dire at trial, a prospective juror expressed the view that drug sentences
are too harsh. The prosecutor told the juror drug offenders in defendant’s position have

         1
        Defendant admits there is “strong evidence of guilt for being under the influence
of methamphetamine” and only appeals the possession conviction.
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the option to obtain treatment instead of going to trial, stating “this is a straight-up
possession” charge. The prosecutor also told the jury the instant case was “not a three-
strikes case.” In both instances, defense counsel promptly objected without specifying
grounds or asking for an admonition. The court sustained both objections, telling the
parties to “Please move on,” after the first objection and commenting after the second,
“Please stay away from other issues.” Defense counsel did not ask the court to strike the
prosecutor’s statements or instruct the jury to disregard them.
       During a break in the proceedings, defense counsel moved for a mistrial based on
the prosecutor’s statements, arguing they belittled defendant’s choice to exercise his right
to a jury trial and would lead the jury to think defendant was wasting their time. The
court found the statements improper, but it concluded they did not “poison” the jury or
“rise to the level of violating [defendant’s] constitutional due process rights to a fair trial”
and denied the motion.
       The jury heard evidence that late on the night of April 14, 2012, Hayward Police
Sergeant Jeff Snell noticed defendant peering through a car window in the parking lot of
a closed car dealership. Snell approached defendant and asked what he was doing. He
noticed defendant was nervous, moving erratically, speaking loudly and rapidly, and
sweating profusely. Defendant was also making strange statements, and his tongue was
covered in a white film. Believing defendant was likely under the influence of a central
nervous system stimulant, Snell performed a field sobriety test for stimulants. During the
test, Snell noticed defendant’s eyelids fluttering, also consistent with being under the
influence of a stimulant.
       Based on the results of the field sobriety tests, Snell arrested and searched
defendant. In defendant’s pants pocket, Snell found a small black cardboard box
containing one white pill marked “Watson 349” inside a plastic cigarette wrapper. Snell
did not find a doctor’s note, prescription pill bottle, or prescription on defendant’s person
or in his property. Snell then took defendant to the Hayward Police Station where his
urine tested positive for methamphetamine and the pill tested positive for hydrocodone.


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       Defendant was convicted of both charges and sentenced to five years’ probation
under Proposition 36. (Pen. Code, § 1210.1)
                                    II. DISCUSSION
       Defendant argues the prosecutor’s statements during voir dire constituted
misconduct because they suggested defendant “wasted [the jury’s] time by going to trial
when he could have had treatment.” We conclude that defendant’s claim is procedurally
barred and, in any event, the prosecutor’s comments were not prejudicial.
   A. Defendant’s Claim Is Procedurally Barred
       To preserve a claim for prosecutorial misconduct, a defendant “ ‘ “must make a
timely and specific objection and ask the trial court to admonish the jury to disregard the
impropriety” ’ unless doing so would be futile or an admonition would not cure the
harm.” (People v. Whalen (2013) 56 Cal.4th 1, 52; see also People v. Hill (1998) 17
Cal.4th 800, 820 (Hill) [defendant must make specific assignment of misconduct].) This
rule applies to alleged prosecutorial misconduct during voir dire. (People v. Medina
(1995) 11 Cal.4th 694, 740.)
       Defense counsel objected to the prosecutor’s statements at trial, but he did not
make a specific assignment of error or ask the judge to admonish the jury to disregard the
statements. Because the alleged misconduct was not “beyond the curative powers of
admonitions” and defense counsel had a chance to be heard by the court, defendant has
forfeited his claim of prosecutorial misconduct. (People v. Arias (1996) 13 Cal.4th 92,
159; see also People v. Gray (2005) 37 Cal.4th 168, 217.)
       Defendant contends requesting an admonition would have been futile because the
court’s comments suggested it would not have granted the request. (See Hill, supra,17
Cal.4th at pp. 820–821.) Unlike the situation in Hill, defendant was not subjected to a
“constant barrage” of misconduct (id. at p. 821), nor had the court shown an inclination to
tolerate misbehavior. On the contrary, both of defendant’s objections had been sustained.
We find nothing in the court’s comments to suggest it would not also have entertained a
request for an admonition, had defense counsel made one.


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   B. The Prosecutor’s Statements Were Not Prejudicial
       Even assuming the prosecutor’s comments constituted misconduct, a defendant’s
conviction will not be reversed as a result of prosecutorial misconduct unless it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct. (People v. Tully (2012) 54 Cal.4th 952, 1010.) While
defendant acknowledges the evidence was strong with respect to the charge of being
under the influence, he contends the remarks could have influenced the jury’s disposition
of the possession charge because there was no direct evidence he was aware of the
controlled nature of the pill.2 Given the strength of the circumstantial evidence of
knowledge, however, we conclude that a more favorable outcome was unlikely.
       The mere fact that the hydrocodone was found in defendant’s possession was
strong evidence of his awareness of its nature. “Ordinarily the fact that a narcotic is
found in the personal effects of the defendant is compelling proof that defendant knew
what he possessed and its nature.” (People v. Williams (1971) 5 Cal.3d 211, 216.) That
presumption was strengthened here because the pill was found in a box in defendant’s
pocket, wrapped in plastic. It was purposefully hidden, packaged in a specific manner,
and carried on defendant’s person as if for personal use. (Cf. People v. Tripp (2007) 151
Cal.App.4th 951, 959.) In addition, defendant was plainly familiar with illicit drug use,
since he was under the influence of methamphetamine at the time he was searched. Prior
drug use constitutes further evidence to support a finding defendant knew the narcotic
nature of the pill in his pocket. (People v. Williams (2009) 170 Cal.App.4th 587, 607.)
Given these circumstances, we conclude the prosecutor’s remarks did not meaningfully
influence the jury’s judgment.




       2
          The essential elements of possession of a controlled substance are “ ‘dominion
and control of the substance in a quantity usable for consumption or sale, with knowledge
of its presence and of its restricted dangerous drug character. Each of these elements may
be established circumstantially.’ ” (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)
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                                  III. DISPOSITION
      The judgment of the trial court is affirmed.




                                                ______________________
                                                 Becton, J.*


We concur:


______________________
 Dondero, Acting P.J.

______________________
 Banke, J.




* Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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