1 Filed 5/6/15 P. v. Holt CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. MARVIN HOLT, Defendant and Appellant. C075904 (Super. Ct. No. 13F05074)

A jury found defendant Ma rvin Holt guilty of two coun ts of being a felon in possession of a firearm and one count of being a felon in po ssession of ammunition. On appeal, defendant raises the following three contenti ons: (1) his trial counsel was ineffective for failing to object to the alleged lay opin ion 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 eith er futile to object or trial counsel was ineffective; and (3) the cumulative prejudice viol ated his due process right to a fair trial. Disagreeing, we affirm.2 FACTUAL AND PROCEDUR AL BACKGROUND Sacramento Police Officers Andrew Toy and Chris Baptista were following up on information that defendant, a felon, was st aying at a specific house in Sacramento. Defendant was outside with a woman name d 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-calib er 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 th e headboard. Inside the clos et 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 f act that the medication that was the blister packs and the pill bo ttles 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] arre sted then for possession of the firearms and ammunition.” Defendant, Ryan, and Whendi were all place d together in a police car. An in-car camera recorded their co nversation. 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 sa id to Whendi, “Make sure you tell Ryan to claim the guns. There’s a rifle in the closet th at’s his, and a pistol.” After being confronted with this record ing, defendant told Officer Baptista he “might find [defendant’s] prints [on the revo lver] because [defendant ] th[ought] that he did touch the revolver.”3 DISCUSSION
I Trial Counsel Was Not Ineffective For Failing To Object To Officer Toy’s Testimony Because Toy Was Not Offeri ng An Opinion On Defendant’s Guilt Defendant contends his tr ial 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] ha d 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 te stimony” 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 de ficient because Officer Toy’s testimony was not an opinion about defe ndant’s guilt, but rather, provi ded 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 pr ong of an ineffective assistance of counsel claim].) This interpretation of the record is su pported by the trial transcript that reads as follows: “Q. [The Prosecutor]: Officer, based on your search of the room and the investigation that you condu cted, what happened next? “A. [Officer Toy]: Well, being that [d efendant]’s medication was in the room, we determined that he was stay ing 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 backpa ck, we also believe that [defendant] had control and custody of that backpack. “Q. [The Prosecutor]: And so was [def endant] arrested then for possession of the firearms and ammunition?4 “A. [Officer Toy]: Yes, he was. “ [The Prosecutor]: Thank you. No further questions at this time.” Viewed in the light of th e prosecutor’s questions, Offi cer Toy was not giving an opinion about defendant’s guilt but was testif ying as to why he decided to arrest defendant. Testimony about what led an office r 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 Miscon duct In Closing And Ineffec tive Assistance Of Counsel Defendant contends the prosecutor comm itted misconduct four times in closing argument by misstating the law and facts, viol ating 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 miscon duct, defendant argues alternatively futility in objecting or ineffective assistance.
A Prosecutor’s Argument That De fendant Admitted He Touched And Held The Revolver Meant He Admitted To Possessing It In two alleged instances of prosecutori al 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? Becaus e 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 possessi ng something, that you hold it in your hand. In the law, we call that actual possession.5 “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 hims elf. 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 co p that he possessed it.” Defendant contends this was an incorrect statement of law because touching does not prove legal possession and it was an in correct 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 ju ry the following: “I will tell you the same thing I said when defens e 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 ex change, when defense counsel objected to another statement as “[m] isstatement of the law,” the court in structed 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 th at arguments of counsel were not evidence.6 There is no reason the court would not have given a similar inst ruction had defense counsel objected. There was also no ineffectiv e 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 re volver, defense counsel reasonabl y could have chosen to let the comments lie and not reinforce them beca use she had already sufficiently addressed them in her closing argument. Specific ally, 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 ac tually had possession] had no t relinquished the right to control. Okay? [¶] What did [defendant] sa y? He said, I may have touched it. There may be prints. Okay. [¶] There is nothi ng 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 reasona ble, tactical one, her performance was not ineffective. (See People v. Frierson (1979) 25 Cal.3d 142, 158 [a reasonable tactical decision does not constitute ineffe ctive assistance of counsel].)
B Prosecutor’s Argument That Access Equals Possession In another two alleged instance of mi sconduct, defendant takes issue with the following two statements that the prosecutor made in closing argument, arguing that the prosecutor misstated the law, clai ming 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] ne ed to go anywhere, take my car or move it out of the way so you can take your brother’s car. [¶] All ri ght. At that very moment, who possess[es] my dad’s car? I do, my br other does, my brother’s wife does, my fiancee does, my dad does, and my mom does. [¶] Why? Because any one of us can7 take those keys and move that car. We a ll 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 constructiv ely possessed the loaded Ruger .22-caliber revolver in count one. In that regard, the prosecutor had al so 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 th at 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 cont rol it, either persona lly or even through another person.” Consistent with this argumen t, the jury was instru cted that, “[t]wo or more people may possess something at the sa me 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 pe rsonally or through another person.” Two, defendant takes issue with the prosec utor’s statement in rebuttal as follows: “I challenge you to read thro ugh this instruction and ever y other one until -- find where it says that access does not equal possession. ” Defendant argues this statement was “inappropriate burden shifting.” Not so. Th e prosecutor was simply responding to trial counsel’s argument in which tria l counsel referred to the inst ructions and said, “access in and of itself does not constitute possession.” “Y ou can look at the law and see if what I am saying is correct. [¶] But I’m telling y ou, just because someone has access doesn’t necessarily mean that that pe rson 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 c onstructive possession of the firearms. C Prosecutor’s Argument Allegedl y 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 a8 burden to establish reasonable doubt -- that r easonable doubt needed to be supported by reasonable evidence.” The pros ecutor’s argument was as fo llows: “And so when you consider the evidence in this case, and you consider whet her 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 reasonabl e, it’s not supported, then the doubt isn’t reasonable. It’s a possible doubt. It’s an im aginary doubt. It’s ex actly what the law tells you is not the type of doubt that should stop yo u from believing that the charge has been proven. Okay.” (Italics added.) Trial counsel was not ineffective for fa iling 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), tr ial counsel could have had a reasonable, tactical basis for not objecting. The trial court had already instructed th e 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 reasona ble doubt. . . . [¶] . . . Th e evidence need not eliminate all possible doubt because everything in lif e is open to some possible or imaginary doubt.” The trial court had also previously in structed the jury as follows: “If you believe the attorneys’ comment s on the law conflict with my inst ructions, 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 co rrect 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.)9 III There Was No Cumulative Prejudice Defendant contends the cumulative effect of Officer Toy’s alleged erroneous lay opinion testimony and the prosecu tor’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 evid ence for the jury and/or the court correctly instructed the jury. Thus, de fendant was not deprived of hi s due process right to a fair trial. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [“The crucial assumption underlying our c onstitutional 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.