Filed 8/21/20 P. v. Heilman CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH HEILMAN,

Defendant and Appellant.

B295703

Los Angeles County

Super. Ct. No. BA466367

APPEAL from a judgment of the Superior Court of Los

Angeles County, Drew E. Edwards, Judge. Affirmed.

G. Martin Velez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Roberta L. Davis, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendant Joseph Heilman of felony 

possession of methamphetamine with the intent to sell. On 

appeal, defendant contends: (1) the court should have declared a 

mistrial after the arresting officer volunteered improper

testimony about defendant’s criminal history; and (2) the 

prosecutor committed prejudicial misconduct during closing 

argument. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On February 23, 2018, defendant was driving near York 

Boulevard and North Avenue 50 in the Highland Park 

neighborhood of Los Angeles. Around 8:00 p.m., Jon Daymen, an 

officer with the Los Angeles Police Department (LAPD), and his 

partner, Officer Reyes,1 stopped defendant’s car because its 

registration tags were expired. 

During the stop, defendant told the officers that he had a 

“scale, a black case, and his dope” underneath one of the seats of 

his car.2 Reyes searched the car and found a black cartridge 

containing a bag holding nearly 21.5 grams of 

methamphetamine, a scale, and three empty sandwich bags.

Defendant told the officers he had just purchased the 

methamphetamine.

1 At the time of trial, Reyes no longer worked for the LAPD. 

2 Prior to trial, defendant and the People stipulated that the search of 

defendant’s car was legal to prevent the jury from hearing evidence 

that defendant was on probation at the time of the traffic stop, which 

subjected him to search conditions. 
3

Reyes also found two cellular phones on defendant, but

defendant didn’t have any money on him or inside his car. The 

officers didn’t find any items for using methamphetamine, such 

as a pipe or a syringe, and defendant didn’t appear to be under 

the influence of methamphetamine or any other substance. 

Michael Geitheim, an LAPD officer, testified as the People’s 

narcotics expert. According to Geitheim, the area of Highland 

Park where defendant was arrested has a lot of drug activity, 

including the sale of methamphetamine. 

A usable dose of methamphetamine for a typical user is

about 0.02 grams. The drug is typically sold in plastic sandwich 

bags, and users who come into contact with police often carry 

between .10 grams and 1 gram of methamphetamine. 21.5 grams 

of methamphetamine would provide a single daily user between 

500 and more than 1,000 doses, and it would take about one year 

to consume. That amount of methamphetamine would sell on the 

street for between $850 to several thousand dollars. According to

Geitheim, it is uncommon for someone to possess 21.5 grams of 

methamphetamine for personal use only, and he had never 

encountered anyone carrying that much methamphetamine 

solely for personal use. 

The amount of methamphetamine defendant was carrying 

in his car could be divided nearly evenly into three 7-gram 

increments. Seven grams of methamphetamine is the equivalent 

of two “eight balls,” or two eighths of an ounce. According to 

Geitheim, methamphetamine and other drugs are “commonly 

sold” in eight-ball units. Sellers of methamphetamine often use 

scales, like the one found in defendant’s car. Sellers also may 

carry two phones—one for facilitating drug sales and the other 

for personal use. 
4

When Geitheim was presented a hypothetical scenario 

based on the facts of this case, he opined that defendant intended 

to sell the methamphetamine found inside his car. Specifically, he

based his opinion on the following factors: (1) the amount of 

methamphetamine—both the large quantity and that it was 

divisible into eight-ball units; (2) the presence of a scale and 

empty sandwich bags; (3) the lack of paraphernalia for using the 

drug; (4) defendant’s lack of any symptoms of being under the 

influence of the drug; (5) the presence of two cellular phones; and 

(6) that the drug was hidden under the seat of defendant’s car. 

Defendant was arrested and charged with felony possession 

of methamphetamine with the intent to sell (Health & Saf. Code, 

§ 11378). At trial, defendant conceded he possessed the 

methamphetamine and other items found during the search of 

his car. He contested only whether he possessed those items with 

the intent to sell the drug. A jury convicted defendant of 

possessing methamphetamine with the intent to sell, and the 

court sentenced him to two years in prison.3

Defendant appeals.

DISCUSSION

Improper Character Testimony

Defendant contends the court erred in denying his motion 

for a mistrial after Daymen volunteered testimony about 

defendant’s criminal history. While we agree that Daymen’s 

3 As a result of defendant’s conviction in this case, the court found he 

was in violation of probation in two other cases. The court ordered 

defendant’s two year sentence in this case to run concurrently with his 

sentence of six years and four months in those cases.
5

testimony was improper, the court did not abuse its discretion in 

denying defendant’s motion. 

1. Relevant Background

While cross-examining Daymen, defense counsel asked the 

officer whether he knew “how long [defendant] has been using 

drugs.” The prosecutor objected to defense counsel’s question, 

which the court overruled. Daymen initially responded, 

“[Defendant] is a chronic offender in Northeast Division. I can 

answer the question.”

Defense counsel and Daymen then engaged in the following 

exchange:

“Q: Do you know how long [defendant’s] been using? Do 

you have personal knowledge of how many years he’s 

been using?

[¶] ... [¶]

“A: [Defendant] is a chronic offender in Northeast 

Division which he has come in contact with many 

officers and I have had contact with [him] in the past. 

[¶] During the stop, I recognized him, but I didn’t 

remember where because I had been out of the field 

for some time because I had a cardiac issue on the job 

where I had been out for almost 11 months. So during 

the traffic stop, I recognized him from the past. I just 

didn’t know from where. So either I stopped him in 

the past or in a pedestrian stop or a traffic stop or I 

arrested him in the past. [¶] We were talking when 

he was in the back of the car, and I was telling him 
6

about my medical issue. So I don’t know how long 

he’s been using meth, but he is a known narcotics 

user to officers in Northeast Division. Which officers, 

I don’t know.

“Q: [H]e is a known narcotics user, correct?

“A: Yes. On this chronic offender list that was at the 

station which he was taken off of after being 

arrested, he was listed on there of being an offender 

of 10851 which is driving without owner consent, 

basically driving a stolen car.

“Q: You’ve never arrested him for selling drugs, correct?

“A: That I don’t know.

“Q: So the answer to the earlier question, to make it 

short, you don’t know how long he’s been using 

methamphetamine?

“A: I guess the answer to that would be ‘no.’ ”

After Daymen’s cross-examination, defense counsel moved 

for a mistrial, arguing Daymen improperly testified about 

defendant’s criminal history, including prior contacts with the 

police and an arrest for driving a stolen vehicle. The court denied 

the motion, reasoning that “counsel opened the door, and the 

officer simply gave the reasons why, what his knowledge was as 

to [defendant] in his prior judgment. In [the court’s] view, the 
7

defense counsel opened the door for the officer to give his honest 

answer regarding [defendant’s] prior drug use.” The court then 

instructed the prosecutor not to question Daymen about 

defendant’s prior convictions and contacts with the police, but it 

told the prosecutor he could ask Daymen to define what a 

“chronic offender” means.

During Daymen’s redirect examination, the prosecutor 

asked the officer to explain what he meant when he testified that 

defendant is a “chronic offender.” Daymen replied, “There is a 

sheet that is given to us by our detectives. There is a whole bunch 

of individuals. It could be a variety of different types of crimes 

that occurred. We are only given that list. If we ever come in 

contact with that person, that we are aware of whatever the 

circumstances may be. I wasn’t saying he was guilty right then 

and there. I didn’t even know he was at York and Avenue 50. [¶] 

A chronic offender means there is a list of individuals that have 

come in contact with the police, and it could be a variety of 

different reasons. If an officer comes into contact, hey we want to 

let you know this is A through Z, a safety issue, or if the public 

says blah, blah, blah, blah.”

During closing argument, the prosecutor referenced 

Daymen’s testimony, telling the jury that defendant “is a chronic 

offender, a law breaking offender.”

2. Applicable Law and Standard of Review

A court should grant a mistrial if it “ ‘is apprised of 

prejudice that it judges incurable by admonition or instruction. 

[Citation.]’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 683

(Ledesma).) In other words, a mistrial is warranted “when 

defendant’s ‘ “ ‘ “chances of receiving a fair trial have been 

irreparably damaged.” ’ ” ’ [Citation.]” (People v. Williams (2016) 
8

1 Cal.5th 1166, 1185 (Williams).) A witness’s volunteered 

statement can provide a basis for a mistrial when it causes 

incurable prejudice. (Ledesma, at p. 683.) But it is only in the 

“exceptional case” that improper testimony is of such a character 

that its negative effect cannot be cured by the court’s 

admonitions. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 

1404 (Olivencia).)

“Whether an incident is prejudicial and requires a mistrial 

is ‘by its nature a speculative matter,’ and the ‘ “trial court is 

vested with considerable discretion in ruling on mistrial 

motions.” ’ [Citation.]” (Williams, supra, 1 Cal.5th at p. 1185.) We 

therefore review a court’s denial of a mistrial for abuse of 

discretion. (People v. Bolden (2002) 29 Cal.4th 515, 555.)

3. The court did not abuse its discretion in denying 

defendant’s request for a mistrial.

Under Evidence Code section 1101, evidence of a 

defendant’s prior criminal acts is generally inadmissible to prove 

the defendant’s propensity to commit the charged offense. (Evid. 

Code, § 1101, subd. (a); People v. Cole (2004) 33 Cal.4th 1158, 

1194.) While exceptions to this rule exist, such as the admission 

of evidence of prior domestic violence or sex-related conduct to 

prove the defendant committed a charged offense involving 

similar conduct (Evid. Code, §§ 1108 [sex-related conduct], 1109 

[domestic violence]), or the use of evidence of prior bad acts to 

prove a fact other than the defendant’s propensity to commit the 

charged offense (Id., § 1101, subd. (b)), it is undisputed that none 

of these exceptions apply to Daymen’s testimony about 

defendant’s criminal history. 

The court nevertheless found defendant invited Daymen’s 

testimony when defense counsel asked the officer if he knew how 
9

long defendant had been using methamphetamine or drugs in 

general. (See People v. Visciotti (1992) 2 Cal.4th 1, 72 [a 

defendant cannot claim the trial court erroneously admitted 

evidence of prior bad conduct when the defendant elicited or 

introduced such evidence].) We disagree that defense counsel’s 

questions opened the door for Daymen to testify generally about 

defendant’s criminal history. 

Daymen’s testimony that defendant was a “chronic 

offender” who had been convicted of driving a stolen vehicle did 

not fall within the scope of defense counsel’s questions concerning 

the officer’s knowledge of defendant’s drug use. Counsel’s first 

two questions asked only whether Daymen knew the extent of 

defendant’s drug use; counsel didn’t ask the officer whether he 

knew the extent of defendant’s criminal record. Although defense 

counsel eventually asked Daymen whether defendant had been 

arrested for selling drugs, that was only after Daymen had 

repeatedly testified about defendant’s criminal history, and that 

question didn’t call for any response concerning defendant’s nondrug-related offenses. Moreover, Daymen never testified that 

defendant’s status as a “chronic offender” stemmed from the 

officer’s personal knowledge of defendant’s drug use. Although he 

claimed defendant was a “known narcotics user to officers in 

Northeast Division,” Daymen later testified he didn’t know which 

officers were aware of defendant’s drug use. Indeed, Daymen 

eventually testified that he had no knowledge of how long 

defendant had been using methamphetamine or any other drugs. 

That was the only response Daymen should have provided when 

defense counsel asked him whether he knew how long defendant 

had been using drugs.
10

Even though Daymen improperly testified about 

defendant’s criminal history, the court didn’t err in denying 

defendant’s request for a mistrial. (Ledesma, supra, 39 Cal.4th at 

p. 683 [improper testimony warrants mistrial only when it 

irreparably prejudices the defendant’s right to a fair trial].) After 

Daymen testified about defendant’s criminal history, defense 

counsel never sought to strike Daymen’s testimony, nor did she 

request the court to admonish or instruct the jury not to consider 

that testimony. As noted above, it is only the “exceptional case” 

where a court’s admonition cannot cure the prejudicial effect of 

improper character testimony. (Olivencia, supra, 204 Cal.App.3d 

at p. 1404.) This is not an exceptional case.

At trial, defendant conceded that he possessed the

methamphetamine, three empty sandwich bags, scale, and two 

cellular phones found during the search of his car. He contested 

only whether he possessed the methamphetamine with the intent 

to sell. The evidence at trial overwhelmingly contradicted this 

defense. 

As the People’s narcotics expert testified, the nearly 21.5 

grams of methamphetamine defendant possessed would take a 

typical daily user more than a year to consume. It was therefore

highly unlikely defendant possessed such a large amount of 

methamphetamine solely for personal use. Defendant also 

displayed no symptoms of being under the influence of 

methamphetamine, and he was not carrying paraphernalia to use 

the drug, further contradicting his defense. In addition to the 

large amount of methamphetamine, defendant possessed empty 

sandwich bags, in which the drug is commonly sold. And the

amount of methamphetamine defendant possessed was divisible 

into commonly sold quantities of the drug that could be evenly 
11

distributed among the empty bags. That defendant had two 

cellular phones on his person further bolsters the inference that 

he possessed the methamphetamine with the intent to sell since 

drug dealers often carry separate phones—one for personal use 

and one to facilitate drug sales. 

In short, because any error in admitting Daymen’s 

testimony did not result in incurable prejudice, the court did not 

abuse its discretion when it denied defendant’s motion for a 

mistrial.

Prosecutorial Misconduct

Defendant next contends the prosecutor committed several 

instances of prejudicial misconduct during closing argument.

Specifically, defendant argues the prosecutor: (1) disparaged 

defense counsel; (2) relied on facts outside the record; (3) misled

the jury; and (4) improperly vouched for the credibility of Daymen 

and Geitheim. As we explain below, defendant has forfeited two

of his challenges to the prosecutor’s argument. To the extent 

defendant has preserved his claims, any misconduct was 

harmless. 

1. General Legal Principles and Standard of Review

A prosecutor commits prejudicial misconduct under the 

federal constitution when he engages in conduct that is so 

“ ‘ “ ‘ “egregious that it infects the trial with such unfairness as to 

make the conviction a denial of due process.” ’ ” [Citations.]’ ” 

(People v. Navarette (2003) 30 Cal.4th 458, 506.) Under California 

law, a prosecutor commits reversible misconduct if he makes use 

of “ ‘deceptive or reprehensible methods’ when attempting to 

persuade either the trial court or the jury, and it is reasonably 

probable that without such misconduct, an outcome more 
12

favorable to the defendant would have resulted.” (People v. 

Riggs (2008) 44 Cal.4th 248, 298.) 

A prosecutor is afforded “wide latitude” during closing 

argument. (People v. Williams (1997) 16 Cal.4th 153, 221.) The

argument may be vigorous and incorporate appropriate epithets 

as long as it amounts to fair comment on the evidence, and it may 

include reasonable inferences drawn from the evidence. (Ibid.)

“[W]hen the claim focuses upon comments made by the 

prosecutor before the jury, the question is whether there is a 

reasonable likelihood that the jury construed or applied any of 

the complained-of remarks in an objectionable fashion.” (People v. 

Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘In conducting this 

inquiry, we “do not lightly infer” that the jury drew the most 

damaging rather than the least damaging meaning from the 

prosecutor’s statements.’ [Citation.]” (People v. Brown (2003) 31 

Cal.4th 518, 553–554.)

2. Relevant Background

2.1. Argument Addressing Reyes’s Missing Body 

Camera Footage

At trial, defense counsel asked Daymen whether Reyes’s 

body camera footage from the search of defendant’s car was 

available. Daymen explained that the footage was stored in the 

“body worn system at the Los Angeles Police Department.” 

Although Daymen could not access and had never viewed footage

from Reyes’s body camera depicting the search of defendant’s car, 

he suggested such footage might exist. Because Reyes no longer 

worked for the LAPD, any footage from his camera would have to 

be obtained through a subpoena. 
13

The prosecutor later complained that the jury would likely 

question why the footage of the search of defendant’s car from 

Reyes’s body camera had never been presented at trial. The 

prosecutor stated he had obtained some footage from the camera,

which he had turned over to the defense, but the footage didn’t 

depict any part of the search of defendant’s car. The court 

excluded the footage from Reyes’s body camera. 

Before closing argument, the prosecutor asked the court to 

preclude defense counsel from asking the jury to question why 

footage of the search of defendant’s car from Reyes’s body camera 

had never been presented at trial. The court denied the 

prosecutor’s request because the missing body camera footage 

was a “core issue in this case.”

During closing argument, defense counsel stated: “Officer 

Reyes resigned shortly after this incident. The body cam is 

something you heard that they wear so that everything they do is 

captured. [¶] Magically the body cam and the search of 

[defendant] disappeared. The whole thing. We searched the 

vehicle very carefully. We searched and found the phones on him. 

None of that is captured on the body cam, but disappeared 

somehow. There is no way for any of us to see what really went 

on.” 

During rebuttal, the prosecutor responded to defense 

counsel’s argument concerning Reyes’s body camera: “[Defense 

counsel] mentioned Officer Reyes’s body worn video and how it 

magically disappeared. She is in possession of Officer Reyes’s

body worn video. Every piece of evidence to turn over to her and 

she has right now[.]” Defense counsel objected to the prosecutor’s 

argument, stating it “is not true.” The court overruled the 

objection, noting that counsel’s statements were “argument.” 
14

The prosecutor continued, “When she gets up and makes 

you think I am hiding something it is a bad faith argument. She 

has all of the body worn videos that I have. If there is anything 

that could have helped her case, she has the entire right to get up 

here and show you what she thinks would help. She can play the 

body worn video if she wants to.” Defense counsel objected again, 

arguing the prosecutor was improperly shifting the burden of 

proof. The court overruled defense counsel’s objection. 

The prosecutor went on, “You can do nothing. If she had 

something in the video that she thought would prove her defense, 

she could have played that video. I just want you guys to know 

everything that I have[,] she has. [¶] I will preface by saying she 

is not required to produce any evidence. She can take a nap, rest. 

... [¶] If they wanted to present that evidence they could have. If 

they wanted to present evidence to you in the form of that body 

worn video that magically disappeared, they could have.” 

After defense counsel objected, stating that defendant was 

not in possession of any body camera footage of the search, the 

court called both attorneys to a sidebar. The court told the 

prosecutor and defense counsel that it didn’t believe the 

prosecutor’s argument was burden shifting, and that the two 

sides should not be arguing about whether there was a discovery 

violation. After the prosecutor told the court that “everything has 

been turned over to defense counsel,” the court stated, “I don’t 

think you can go into that anymore. You certainly have the right 

to feel they could call logical witnesses. This is a proper 

argument. I don’t think there is a discovery violation. The 

defense objection is overruled.”
15

2.2. Argument Addressing the Officers’ Credibility

During closing argument, defense counsel asked the jury to 

question Geitheim’s credibility: “The expert witness—I think both 

officers testified to some extent as experts. He is not going to 

come here and say, you know, I don’t think possession was for 

sale. I think it was for personal use. Of course, he is going to say 

it is for sales. He is going to say whatever he can to support his 

opinion.”

On rebuttal, the prosecutor responded: “The defense talked 

about how there are officers that testified. You have to judge 

them as witnesses. Look at them and see if they are biased. 

Maybe the expert got up here and had his mind made up. He is 

not going to get up here and say he didn’t possess it for sale. He is 

not going to get up here and tell you something that isn’t true. [¶] 

If you think about that argument, that means you have these two 

cops that have combined 40 years of experience on the force 

coming in here to lie to you guys under oath about a meth sales 

case. They are not going to risk their careers and say this guy 

possessed meth for sale just on a whim just because they wanted 

to. [¶] They swore to tell the truth. He told you about the stop 

and what he found. He thought this guy possessed it for sale. [¶] 

[The drug expert] came in here [and] told you based on his 

experience what he thought. To question those two officers’ 

credibility doesn’t make sense. There is nothing they said that 

causes you guys to believe that they had a bias against this 

defendant. They got up here and risked their careers to lie to you 

about possession of meth for sales case. This is not a murder case 

where they are going to get up here and say, “hey, he possessed 

this for sale.”
16

Defendant did not object to any of the prosecutor’s 

statements concerning the officers’ credibility.

3. Forfeiture and Ineffective Assistance of Counsel

As a preliminary matter, defendant has forfeited two of his 

claims of prosecutorial misconduct by failing to object below. To 

preserve a claim of prosecutorial misconduct on appeal, a 

defendant must make a timely and specific objection and request 

an admonition. (People v. Clark (2016) 63 Cal.4th 522, 577 

(Clark).) Otherwise, the argument is reviewable only if an

objection would have been futile or an admonition would not have 

cured the harm caused by the misconduct. (Ibid.)

First, defendant forfeited his claim that the prosecutor 

improperly attacked defense counsel’s integrity. Although 

defendant objected that the prosecutor was shifting the burden of 

proof after he argued that defense counsel could show the jury 

any footage from Reyes’s body camera that she believed would 

help defendant’s case, defendant never objected to the 

prosecutor’s statement that defense counsel’s argument was 

made in bad faith. (People v. Winbush (2017) 2 Cal.5th 402, 484 

[defendant’s failure to object to prosecutor’s argument that 

defense counsel “ ‘intentionally misled’ ” the jury forfeited any 

claim on appeal that the prosecutor’s argument was misconduct].)

Defendant does not argue it would have been futile to object that 

the prosecutor improperly disparaged defense counsel or that an 

admonition by the court instructing the jury not to consider the 

prosecutor’s statement would have been ineffective. (Clark, 

supra, 63 Cal.4th at p. 577.)

Second, defendant forfeited his claim that the prosecutor 

improperly vouched for the credibility of Daymen and Geitheim.

Defendant never objected to any portion of the prosecutor’s 
17

argument addressing the officers’ credibility, nor does he argue 

an objection would have been futile or an admonition would not 

have cured any potential harm. (Clark, supra, 63 Cal.4th at p. 

577.)

Defendant argues that “[t]o the extent defense counsel 

failed to object or failed to state the proper grounds for an 

objection to the instances of prosecutorial misconduct, defense 

counsel’s failure to do so constituted ineffective assistance of 

counsel.” Defendant, however, only generally contends that 

counsel’s failure to object to the prosecutor’s argument 

constitutes ineffective assistance. Defendant does not identify 

any specific omission by counsel, let alone attempt to explain why 

any particular omission was deficient or prejudicial. 

Consequently, defendant has failed to substantiate any claim 

that his counsel’s performance was ineffective. (See Ledesma, 

supra, 39 Cal.4th at pp. 745–746 [to establish a claim of 

ineffective assistance of counsel, the defendant must show (1) 

why counsel’s performance fell below an objective standard of 

reasonableness; and (2) but for the deficient performance, 

defendant would have obtained a more favorable result at trial].)

4. Arguing Facts Not in Evidence and Misleading the 

Jury

Defendant did, however, preserve his claims that the 

prosecutor argued facts outside the record and made misleading 

statements to the jury. Specifically, defendant challenges the 

prosecutor’s statements that he provided defense counsel with

Reyes’s body camera footage and that she could have presented 

that footage to the jury. Although defendant didn’t object each 

time the prosecutor made these statements, he did object to the 

prosecutor’s first and last statements on the topic, which the 
18

court overruled. Defendant, therefore, has preserved these

arguments for appeal. (See People v. Lima (2020) 49 Cal.App.5th 

523, 533 [“ ‘ “The lack of a timely objection and request for 

admonition will be excused only if either would have been futile 

or if an admonition would not have cured the harm.” ’ ”].)

As noted above, a prosecutor enjoys wide latitude in his 

closing argument, and his 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. Jackson (2016) 1 Cal.5th 269, 349.) To 

this end, the prosecutor may “argue all reasonable inferences 

from the record, and has a broad range within which to argue the 

facts and the law.” (People v. Daggett (1990) 225 Cal.App.3d 751, 

757 (Daggett).) It is improper, however, for the prosecutor to 

argue facts not in evidence or to mislead the jury. (People v. 

Mendoza (2016) 62 Cal.4th 856, 906 (Mendoza) [improper to 

argue facts not in evidence]; Daggett, at p. 758 [improper to 

mislead the jury].)

With respect to the prosecutor’s statements that he 

provided defense counsel the only footage from Reyes’s body 

camera that the People had obtained, that argument was 

improper because it referenced matters that were not presented 

to the jury. (See Mendoza, supra, 62 Cal.4th at p. 906.) During 

trial, the prosecutor told the court that he had provided defense 

counsel a copy of the only footage from Reyes’s body camera that 

the People had obtained. He made those representations, 

however, outside the jury’s presence during an evidentiary 

hearing. The jury was never informed during the evidence phase 

of trial that footage from Reyes’s body camera had been turned 

over to the defense. 
19

It also was improper for the prosecutor to argue that 

defense counsel could have presented footage from Reyes’s body 

camera. As noted above, the court precluded the parties from 

presenting that footage to the jury. The prosecutor, therefore,

misled the jury by arguing that defense counsel could have 

played footage from Reyes’s body camera if it would have helped 

defendant’s case. (See Daggett, supra, 225 Cal.App.3d at p. 758.)

Nevertheless, any error during the prosecutor’s argument 

was harmless because it is not reasonably likely that the jury 

applied the improper statements in an objectionable manner. 

(People v. Daveggio (2018) 4 Cal.5th 790, 854 [“ ‘[W]hen [a] claim 

focuses upon comments made by the prosecutor before the jury, 

the question is whether there is a reasonable likelihood that the 

jury construed or applied any of the complained-of remarks in an 

objectionable fashion.’ ”].) First, the prosecutor’s statements that 

he had provided defense counsel with all the body camera footage 

addressed only what evidence the parties possessed; they did not 

ask the jury to draw any impermissible inferences from the 

evidence concerning defendant’s guilt or to misconstrue any of 

the burdens of proof. Second, the topic of Reyes’s missing body

camera footage was relevant only to what occurred during the 

search of defendant’s car. But, as we explained above, defendant 

never challenged any aspect of the search. Rather, he stipulated 

the search was legal and conceded that he possessed all the items 

found inside his car, including the nearly 21.5 grams of 

methamphetamine. Thus, it is not reasonably likely that the 

prosecutor’s statements concerning the missing body camera 

footage affected the jury’s finding concerning defendant’s intent

in possessing the methamphetamine. Finally, the court 

instructed the jury that nothing the attorneys said during trial 
20

was evidence, including their remarks during closing argument. 

(See People v. Yeoman (2003) 31 Cal.4th 93, 139 [jurors are 

presumed to understand and follow the court’s instructions].) 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.