1 Filed 7/3/13 P. v. Bunn CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. MARY ALLISON BUNN et al., Defendants and Appellants. E054196 (Super.Ct.No. SWF026553)

OPINION

APPEAL from the Superior Court of Ri verside County. Ronald L. Johnson, Judge. (Retired judge of the San Diego S uper. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Mary Allison Bunn. Babak Semnar, under appointment by th e Court of Appeal, for Defendant and Appellant William Steven Bunn.2 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Ronald A. Jakob, De puty Attorneys Genera l, for Plaintiff and Respondent. A jury convicted defenda nt and appellant William St even Bunn of cultivating marijuana (Count I—Health and Saf. Code, § 11358); the lesser included misdemeanor offense of child endangerment 1 (Count II—Pen. Code, § 273a, subd. (b)); 2 and possession of a firearm by a pe rson prohibited to do so (Count III—Pen. Code, § 12021, subd. (c)(1)). The same jury convicted defe ndant and appellant Ma ry Allison Bunn of cultivating marijuana, (Count I—Health an d Saf. Code, § 11358) and the lesser included misdemeanor offense of child endangerment (Count II—Pen. Code, § 273a, subd. (b)). 3

The trial court sentenced William to a 16-mont h aggregate term of imprisonment. It granted Mary probation. On appeal, Mary contends: (1) the tr ial court erred by dec lining to quash the

search warrant and exclude all evidence discov ered pursuant thereto; (2) the trial court erred in refusing to instruct on possession of marijuana as a lesser included offense of cultivation; and (3) that substantial evid ence does not support her conviction for misdemeanor child endangerment. William ma intains the People committed several acts

1 The jury found both defe ndants not guilty of the charged offense of felony child endangerment. (Pen. Code, § 273a, subd. (a).)

2 All further statutory references are to the Penal Code unless otherwise indicated.

3 We use defendants’ first names for the sa ke of clarity, due to the fact that they share the same last name. No disrespect is intended.3 of prejudicial misconduct depriving him of his constitutional right to a fair trial. Defendants join in each others’ clai ms. We affirm the judgment.

FACTUAL AND PROC EDURAL HISTORY Special Agent Eric Ball of the Drug En forcement Administration (DEA) received information regarding the indoor cultivation of marijuana at a residence on Lilac Road in San Diego County (hereinafter “Lilac Road”); he started co nducting surveillance of the home. On July 31, 2008, he noticed “a heap of debris in cluding . . . ventilation ducting, empty grow light boxes, and th e type of debris that [he] would expect to see from a marijuana-cultivation operation.” On August 1, 2008, Ball ag ain conducted surveillance of Lilac Road. He followed two vehicles that left the home. One was regi stered to a Dean Childers and the other to a Christopher Yap. The vehicles led him to Loring Road in Murrieta; however, Ball had to

terminate his surveillan ce when the road turned from asphalt to dirt , because he feared his

surveillance would be discovered in such a remote location.

Ball returned to Lilac Road in order to obtain a closer look at the home. He walked up to the front door where he observed the “strong odor of marijuana, sounds of lights and ballasts humming within the residence. [He] could see the bright grow lights through a seam in the window where a plasti c tarp had been hung in the window but enough seam where the bright light was shin ing through.” Such circumstances were consistent in Ball’s experience with marijuana cultivation. On August 20, 2008, Ball again conducted surveillance of Lilac Road. He again observed Childers’s vehicle, which he followed as Childers left the home. Childers led4 him toward the same area in Murrieta to which he had prev iously been led, but to a specific residence on Catt Road (hereinafter “Catt Road”). Ball surveilled the home with

binoculars. He observed Childers exit his ve hicle and enter a detached garage on the property. On August 21, 2008, Ba ll again conducted surveillance of Catt Road. He observed three vehicles on the property. On e was registered to defendants, one to Childers, and the remaining to Yap. Ba ll saw William, Childers, and Yap exit the detached garage. It appeared the three men were working to gether; they went to Yap’s car where they retrieved a box. Ball witnessed Mary exit the residence w ith a child; the child was walking around the driveway as Mary followed him. He never saw Mary enter the garage. Yap departed

from the residence first and Childers left th ereafter. William picked up the child and

went back into the house. Childers had previously been arrested for cultivation of marijuana. Ball noted Childers had left a location suspected of be ing an active site fo r marijuana cultivation (Lilac Road) to another address (Catt Road), wh ere his focus was on th e detached garage. In August 2008, Detectiv e Richard Holder of the Riverside County Sheriff’s Department was assigned to the Southwest Corridor Narcotics Task Force, which consisted of a group of local law enforcemen t officers who enforc ed drug laws within southwest Riverside County. Holder conducted a separate surveillance of Catt Road on August 26, 2008. Ball conveyed his observations to Hold er; Holder drafted an affidavit and declaration in support of a search warra nt for Catt Road. Warrants were obtained for5 both Lilac Road and Catt Road; they were execu ted at the same time so the occupants of one residence could not notify t hose in the other. Ball particip ated in the search of Lilac

Road. On August 27, 2008 , Holder participated in a se arch of Catt Road, defendants’ home. Presearch and postsearch videos of th e location were recorded and played for the jury. In the detached garage, officers found a “grow-r oom” in which 79 live marijuana plants approximately one and a half to two fe et in height, some of which were budding, were found; the door to the grow-room was unlocked. The grow-room had an electrical bypass, a llowing the use of electricity directly from the grid, bypassing that supplied to the resi dence; Holder testified this is a technique typically used to hide illegal marijuana cultiv ation because the high amount of electricity required does not then show on the residents’ electrical bills. Holder observed a child’s wooden horse toy, a rocking ho rse, and stroller in the garage adjacent to the grow-room. Inside the home, officers found a small, usable quantity of marijuana on a desk

attached to the kitchen area . On the ledge of a window , they found a small, glass smoking pipe with burnt marijuana residue insi de. On the kitchen co untertop, they found a clear plastic baggie with mar ijuana inside. They also found another bag with over 50 tablets on the countertop. 4 Holder recalled seeing a baby gate between the living room

4 Criminalist Javed Kahn of the Departme nt of Justice testified the bag contained 78 prescription 60-milligram codeine tablets.6 and kitchen lying on the floor. 5 He saw the child go into the kitchen while he was there. Holder testified all the drugs were within reach of defend ants’ then 22-month-old child. On the nightstand in the master bedroom, officers found a lighter, a digital scale, loose marijuana, and an ashtray. They also found a number of “High Times” magazines which are typically found amongst people who use, grow, and sell marijuana. “[T]he home was unkempt. There were items strewn about in literally every room of the house.” Officers found a 12-gauge, pump-ac tion shotgun and 13 live rounds of

ammunition on the shelf in the closet of the master bedroom. They also found a semiautomatic .38-caliber handgun with a mag azine and two or three live rounds next to it on a shelf above the refrigerator. 6 A background check of William conducted prior to

the search revealed he had a conviction fo r assault by force by means likely to produce great bodily injury, which prohibited hi m from possessing a firearm. Based on the totality of the circumstances, Holder came to the conclusi on the grow-room was part of an illegal grow operation.

William told Holder he was involved with the marijuana grow because “he needed some extra money and that tim es were hard.” William adm itted using marijuana. Mary indicated she frequented the garage. Ne ither defendant possessed a valid medical

5 Detective Robert McRae of the Rive rside County Drug Endangered Children Team testified Holder informed him the gate was secured when officers first entered the home.

6 Detective Rob McRae testified Holder informed him the shotgun was found on the bed in the master bedroom, and the pi stol in a cabinet above the refrigerator.7 marijuana card nor recommendation at the tim e of the search. Holder called child endangerment investigators to the scene. Denise Moore, a forensic interviewer with the Department of Public Social Services, responded to the resi dence. She interviewed defenda nts. William told her they had the firearms to scare off coyotes. He to ld her he had been cultivating marijuana for at least two weeks because he needed to supp lement his income. Mary said she knew nothing about the marijuana cultivation; howe ver, Moore found that difficult to believe due to the toddler toys fo und in the garage. Defe ndants both adm itted smoking marijuana. Moore observed un secured marijuana in the home. She made the decision to place defendants’ child in protective custody. Detective McRae also resp onded to the scene. He observed a stroller and two rocking horses near the grow-room in the garage. McRae testified the grow-room represented a potential fire h azard and could pose a risk to the child because people would want to rob the home for marijuana and any money associated with its sale. There were also children’s toys in the master be droom; McRae was concerned that the child could ingest any of the unsecured marijuana found in the home. After completing the search of defendant s’ home, Holder executed a warrant at Yap’s home and determined the marijuana gr owing at the home was within the confines of the law; hence, Yap was not arrested. Ya p testified he was the current vice president, but former president of the Human Kindness Center (HKC) for the past three years, which included August 27, 2008. He testified the HKC is “a private patient collective. We cultivate marijuana for pa tients . . . for various needs under [the California’s8 Compassionate Use Program].” The parties s tipulated the HKC “‘was a valid authorized legal collective on or ab out August 27 of 2008.’” Yap testified that he first met William in the beginning or middle of August 2008.

He had a discussion with William about usi ng a portion of William’s garage to grow marijuana. Yap was responsibl e for purchasing all the equipment. He and Childers set up the irrigation systems, lights, temperature controls, and electrical equipment. Yap intended to pay rent for the room and reco mpense for water and electricity; once they

became members of the collectiv e, defendants would receive so me of the marijuana. Yap and Childers brought the mariju ana plants into the garage one week prior to August 27, 2008. The grow-room was co mpletely sealed from ground to ceiling and could be entered only through a door, on which there was a lock to which Yap had the only key. Yap visited the room daily to care for the pl ants; none of them were mature enough to contain any usable marijuana. Yap testified he never di scussed the grow-room with Mary, nor did she have anything to do with setting it up. William did not purchase any of the equipment, set any of it up, or grow the plants for him. 7 Yap acknowledged defendants did not have legal medical recommendations to grow marijuana.

7 However, Yap previously signed a declaration under pe nalty of perjury reflecting that William was growing the marijuan a for him. Yap testified the declaration was prepared by someone else and was inaccurate.9 Mary testified she brought the handgun in to the home, and her father-in-law gave her the shotgun. 8 She retained them because there were mountain lions and coyotes in the area. The codeine pills a nd marijuana were in a can locat ed in the kitchen cupboard,

not on the counter. There was no unsecured ma rijuana in the home. The baby gate was up and secure on August 27, 2008. Mary test ified she was not involved in the cultivation of marijuana, but knew of its existence. The stroller and rockin g horses were being stored in the garage; they were not being us ed by her child. There were no baby toys in

the master bedroom. DISCUSSION

A. MOTION TO QUASH WARRANT Mary contends the court erred in refu sing to quash the search warrant, because Holder either deliberately or recklessly failed to disclose in his affida vit in support of the warrant the fact that Yap was operating a legal medical marijuana collective. We disagree.

Holder submitted an affida vit in support of a search warrant of Catt Road on August 22, 2008. Holder recited his experien ce as an investigator with the Riverside County Sheriff’s Department since June 2002; as a deputy with that office since July 1990; and previously as a deputy with the Orange County Sheriff’s Department. He declared he was part of a task force cons isting of agents and officers from the DEA, Ontario Police Department, United States Immigration and Customs Enforcement,

8 On cross-examination, Mary adm itted she showed the guns to William.10 Riverside Police Department, Riverside Count y Sheriff’s Department, San Bernardino County Sheriff’s Department, and the IRS.

Ball had received information from a reliabl e, confidential informant regarding an indoor hydroponic marijuana gr ow inside Lilac Road. Furthe r investigation revealed the home belonged to Childers. Holder noted Childers had co nvictions for cultivation and possession of marijuana for sale on December 14, 2005, for which he was placed on three years’ probation. On July 31, 2008, Ball we nt to Lilac Road and obse rved discarded ventilation ducting, ducting couplings, vents, fans, and a re flective hood box pile d in the driveway. Based on his training and experience he belie ved such objects were used as part of marijuana cultivations. On Au gust 1, 2008, Ball walked to the garage door of Lilac Road, where he observed an amber light simi lar to that used by high intensity bulbs specifically used to grown in door marijuana. He also sm elled the odor of cultivated marijuana emanating from the s lightly open garage window and window next to the front door. He additionally noted th e sound of what he believed to be irrigation systems used in the cultivation of marijuana. On August 20, 2008, Ba ll followed Childers’s vehicl e from Lilac Road to Catt Road. William had prior convictions on Marc h 20, 2003, and November 5, 2005, for being under the influence of a controlled su bstance. Ball saw Childers exit the garage, obtain something from his vehicle, and then return to the garage. On August 21, 2008 , Holder spoke with a Southern California Edison Fraud and Revenue Protection Investigator who inform ed him Catt Road had several spikes in11 electrical usage, including recent bills show ing three times that of what a regular residence of its size uses. Holder opine d Catt Road was bein g used to cultivate marijuana, and requested a warrant to search the home, garage, and vehicles. The search warrant was issued upon Holder’s affidavit. On June 18, 2009, Mary’s counsel file d a motion to quash the search warrant. Mary’s counsel argued Holder intentionally or recklessly omitted the fact that Yap, one

of the individuals witnessed at defendants’ home, was the operator of a legal medical marijuana collective, from th e affidavit in support of the search warrant. Counsel

attached the declaration of Ya p in which he affirmed he was the President of HKC, a nonprofit medical mar ijuana cooperative, and that Willia m had “agreed to build a grow house in his garage for the collective. I am informed and believe that [William] had a doctor’s recommendation for medical marijuana a nd a valid identificati on card issued by the State of California for medical marijuan a. I never discussed the details of the enterprise with Mary Bunn and she had absolu tely nothing to do wi th the operation.” Yap further declared, “I was responsible for purchasing the plants and [William] was just growing them for me because he ha d the facilities. Mary . . . did not know anything about the operation, a nd I never discussed the opera tion with her . . . .” Yap asserted that Holder informed him Yap’ s operation was lawful under state law. Without holding an eviden tiary hearing, the court de nied the motion reasoning “your argument today is that [Holder] s hould have known, I don’t have specific declarations or factors in the moving papers or in the supplemental documents that prove or meet the burden of proof. [¶] Because there are no decl arations that specifically12 support the position Deput y Holder recklessly acted with di sregard for the truth or made

false statements or omissions on statemen ts raised in argument and supposition by the defendant, the Court finds good cau se to deny the motion to quash.” “A defendant who challenges a search warra nt based on omissions in the affidavit bears the burden of showing an intentional or reckless omission of material information that, when added to the affida vit, renders it insufficient to support a finding of probable cause. [Citations.] . . . [T]h e defendant must make his showing by a preponderance of the evidence, and the affidavit is presumed valid.” ( People v. Scott (2011) 52 Cal.4th 452, 484; see also People v. Maestas (1988) 204 Cal.App.3d 1208, 1216.) If a defendant meets her burden, then the court must dete rmine whether the remaining content of the

affidavit is sufficient to estab lish probable cause. If not, then “the search warrant must be

voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” ( Franks v. Delaware (1978) 438 U.S. 154, 156.) “[A] Franks violation cannot be excused under th e . . . good faith exception to the exclusionary rule.” ( United States v. Cowling (8th Cir. 2011) 648 F. 3d 690, 695, fn. 4.) Here, Mary failed to meet her burden to establish a substantial showing of reckless

or intentional omission of material facts. Mary submitted no evidence that Holder, or any

of the officers with whom he was connect ed, knew Yap operated a legally valid medical marijuana cooperative. Mary’s suggestion Ho lder “very likely knew about Yap’s lawful operation” is pure conjecture. In fact, the only evidence of such knowledg e on the part of Holder came during the search on Yap’s residence after the search of defendants’ residence had already been completed. Thus, Mary’s assertion is completely contradicted13 by the fact that Holder also executed a search warrant on Yap’s home. The court correctly denied Mary’s motion to quash the search warrant.

B. INSTRUCTION ON POSSESSI ON AS A LESSER INCLUDED

OFFENSE OF CULTIVATION Mary contends the trial court erred in de nying her request that it instruct the jury on possession of marijuana as a lesser included offense of marijuana. We hold the court correctly refused the instruction. Prior to trial, Mary’s counsel noted “a third affirmative defense, which is a complete defense, is no possession. Clearly, if you don’t have po ssession, then you don’t need to be a qualified patient, and you don’t ne ed to be a caregiver. Mr. Yap’s testimony, as indicated in our report, will say that th e marijuana that was fo und in [defendants’] garage was within a room that was exclusive to his control. There was a door that closed, and there was a lock that only he held the key to. [¶] Therefore, he had exclusive control of the marijuana.” The prosecutor respon ded “[Defense counse l] is completely accurate. . . . [I]t would be a defense if believe d by the jury.” After the People rested its case, but be fore the defense put on theirs, Mary’s counsel requested the court inst ruct the jury on possession as a lesser included offense of cultivation: “Your Honor, I be lieve it’s just simple possessi on. There was evidence in this case that there was mariju ana in the master bedroom and also in the kitchen area. There was testing done, and I belie ve we had an expert that test ified that he tested a plantlike substance that revealed it was marijuan a. That’s simple possession.” The court denied the request.14 “[A] trial court is obligated to instruct the jury on a ll general principles of law relevant to the issues raised by the evidence. [Citation.] It is error for a trial court not to

instruct on a lesser included o ffense when the evidence rais es a question whether all of the elements of the charged offense were pres ent, and the question is substantial enough to merit consideration by the jury. [Citation .] When there is no evidence the offense committed was less than that charged, the tria l court is not required to instruct on the lesser included offense. [Citation.]” ( People v. Booker (2011) 51 Cal.4th 141, 181.) The obligation to instruct on lesser included offenses arises even where

inconsistent with the defense’s theory of the case or where specifically objected to by the defense, so long as substan tial evidence supports it. ( People v. Breverman (1998) 19 Cal.4th 142, 159.) “[ E ] very lesser included offense, or theory thereof, which is supported by the evidence must be pres ented to the jury.” ( Id . at p. 155.) “On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense. [Citation.]” ( People v. Booker , supra , 51 Cal.4th at p. 181.) Simple possession of marijuana is a lesser included offense of cultivation. (See People v. Dieck (2009) 46 Cal.4th 934, 938; CALCRIM No. 2370.) Here, instruction on possession as a le sser included offense was both inconsistent with the defenses’ theory of the case and was not supported by substantial evidence. A lesser included offense of possession could not be based upon defendants’ control of marijuana within the home, be cause they were not charged with any offenses for that

behavior. As the court corr ectly pointed out, de fendants were charge d with cultivation15 based on the live marijuana in the grow-room, not on any marijuana in the house. Thus, the court correctly denied Mary’s request.

C. SUBSTANTIAL EVIDENCE OF CHILD ENDANGERMENT Mary argues insufficient evidence supports her conviction of misdemeanor child endangerment. William joins her argument. We hold substantial evidence supported

defendants’ convictions for child endangerment. “‘In reviewing a challenge to the sufficien cy of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it disclo ses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt.” [Citations.] We presume in support of the judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of revi ew applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the ju dgment may not be reversed simply because the circumstances might also reasonably be reconciled w ith a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.’ [Citation.]” ( People v. Houston (2012) 54 Cal.4th 1186, 1215.) “Any person who . . . willfully causes or permits [a] ch ild to be placed in a situa tion where his or her person or health may be endangered, is guilty of a mi sdemeanor.” (§ 273a, subd. (b); CALCRIM No. 823.)16 Here, sufficient evidence wa s adduced that defendants’ actions placed their child in a situation in which his health might be endangered. Although Ho lder testified he saw a baby gate, he said it was do wn when the search warrant wa s executed, giving the child access to the kitchen; in fact, he said he saw the child enter the kitchen while he was

there. Holder testified the officers found a bag of marijuana and the codeine tablets on

the kitchen counter within r each of the child. Moore obser ved unsecured marijuana in the home, including on the counte r in the kitchen, within reach of the child. Officers also found a usable amount of mariju ana on a desk attached to the kitchen area. On the ledge of a window, they found a small glass smoking pipe with burnt mariju ana residue inside. On the nightstand in the master bedroom in which children’s toys were seen, officers found a lighter, a digital scale, loose marijuana, and an ashtray. 9 This evidence, in and of itself if believed, was enough to support th e conviction because it could have led to accidental ingestion of the drugs by the child.

9 At oral argument, counsel for Mary contended MacRae repudiated his prior testimony toys were found in the master be droom when confronted with the presearch video of the master bedroom. We disagree. MacRae’s testimony on cross-examination acknowledged the presearch video apparently di d not show any toys, but he also testified expressly and implicitly the video did not show every possible angle of the master bedroom. Indeed, on redirect, MacRae testif ied he recalled seeing “gender-age specific toys that would be related to a child such as the [defendants’] in the master bedroom.” Thus, viewing the evidence “in the light mo st favorable to the judgment” there was substantial evidence in the reco rd to support a jury ’s determination that children’s toys were found in the master bedroom. ( People v. Livingston (2012) 53 Cal.4th 1145, 1170.)17 The People additionally ad duced evidence a shotgun wa s found on the bed in the

master bedroom. 10 Children’s toys were located in the garage next to the grow-room. Despite Mary’s testimony to the contrary, th is was sufficient circum stantial evidence for the jury to determine de fendants’ child played in the garage. In fact, Mary indicated she frequented the garage. Holder testified the door to the grow-room was unlocked when he first encountered it. McRae testified the gr ow-room represented a possible fire hazard. Moreover, there was a danger the child might pick up and ingest marijuana clippings inside the grow-room. Thus, sufficient evidence was adduced below to support

defendants’ convictions for mi sdemeanor child endangerment.

D. PROSECUTORIAL MISCONDUCT William argues the People engaged in seve ral acts of prejudicial prosecutorial misconduct during its closing and rebuttal argum ents. We hold the People committed no

acts of misconduct.

10 At oral argument, counsel for both the People and Mary argued no evidence supported a finding the shotgun was found on the bed in the master bedroom. On the contrary, MacRae testified he was told the shotgun was found on th e bed. When asked whether he was told it was on the bed or in the master bedroom, he replied the master bedroom. However, he again, later testifie d during cross-examination someone informed him the shotgun was found on the bed. Alth ough MacRae agreed the shotgun would not have posed a danger to the child in a hypothetical posed to him on cross-examination based on a still of the presearch video in whic h defense counsel posited, “If I were to tell you that is the shotgun a nd location it was found,” he did not repudiate his prior testimony that he was told the shotgun was fo und on the bed. Thus, viewing the evidence “in the light most favorable to the judgment,” there was substa ntial evidence in the record to support a jury’s determin ation that the shotgun was fo und on the bed in the master bedroom. ( People v. Livingston , supra , 53 Cal.4th at p. 1170.)18 Misconduct by the prosecutor violat es the federal Constitution when it “‘“‘comprises a pattern of conduct “so egre gious that it infects the trial with such

unfairness as to make the conviction a denial of due process.”’”’” ( People v. Hill (1998) 17 Cal.4th 800, 819.) “‘Conduc t by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduc t under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” ( Ibid. ) We review de novo a defendant’s claim of prosecutorial misconduct. ( People v. Uribe (2011) 199 Cal.App.4th 836, 860.) “‘“‘[T]he prosecution has broad discreti on to state its views as to what the evidence shows and what inferences may be dr awn therefrom.’” [Citation.]’ [Citation.] When we review a claim of prosecutorial remarks constituting misconduct, we examine

whether there is a reasonable lik elihood that the jury would have understood the remark to cause the mischief complain ed of. [Citation.]’ [Citation. ] ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defe ndant must show a reasonable likelihood the jury understood or applied the co mplained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging ra ther than the least damaging meaning from the prosecutor’s statements.’ [Citation.]” ( People v. Spector (2011) 194 Cal.App.4th 1335, 1403.)

1. ALLEGED DISPARAGEMENT OF DEFENSE COUNSEL During its closing argument, the People ar gued, “Defense counsels want[] you to believe this case is about medical marijuana. But you didn’t hear any testimony about19 that because it’s irrelevant. They want you to believe this is about medical marijuana because they think that’s going to convince you to co me back with a verd ict of not guilty. But the stipulation is simply not relevant because [defendants] are charged with cultivating marijuana, and they are the only defendants in th is case. Mr. Yap is not a

defendant. No members of th at collective are a defendant. The only people charged with cultivating marijuana are the people who resi ded at the area in the land that had the marijuana grow. Don’t be misdir ected, folks. It’s the defens e attorney’s job to misdirect you.” 11 Mary’s counsel objected on the gro unds of improper argument. The court overruled the objection. The prosecutor continued, “Any argument about medical marijuana or the Second Amendment rights or vicious mountain lions is meant to misdirect you. The jury instru ctions are meant to keep you on that path, that path of knowledge, that path of unders tanding, that path of wisdom.” Although we in no way co ndone such argument, we fi nd no legal error in the People’s single, passing statement that the job of the defense attorney is to misdirect the jury. Indeed, the comment was less objecti onable than those made by prosecutors in People v. Breaux (1991) 1 Cal.4th 281, People v. Gionis , supra , 9 Cal.4th 1196, and People v. Cunningham (2001) 25 Cal.4th 926, all of which were found to have been

11 The People, on appeal, contend Willia m forfeited this argument by failing to object below. ( People v. Gionis (1995) 9 Cal.4th 1196, 1215.) However, since Mary’s counsel’s objection on that same basis had al ready been overruled, it would have been futile to do so. ( People v. Tully (2012) 54 Cal.4th 952, 1037, fn. 31 [failure to object to prosecutorial misconduct may be excused where objection would have been futile].)20 proper reminders the jury sh ould focus on the evidence and not on the arguments. ( Breaux , at pp. 305-306 [if the defense has neith er facts nor law on its side, defense counsel will attempt to confuse the jury]; Gionis , at pp. 1215-1216 [defense counsel “arguing out of both sides of his mouth” and had engaged in great lawyering]; Cunningham , at pp. 1002-1003 [statement by pros ecutor that defense counsel’s job was to put up straw men, smoke, and red herri ngs].) Thus, we hold no misconduct occurred.

2. CONTENTION THAT EVI DENCE DID NOT EXIST During its rebuttal argument, the People argued, “Defense argues Christopher Yap

could be ordered to produce receipts. I [do not] know wh ere he gets that from. I know of no such ability for us to order him to bring in something like that. What I was arguing is that if your position is that you want this jury to believe th at you purchased the equipment for the collective operating lawfully, why not ju st bring the receipts in? Obviously, you need to keep them b ecause you have to charge each me mber of your collective their proportion[al] share. Surely, you have records. Why not br ing them in? Because they don’t exist. Because this was [def endants] cultivating this room.” Defendants contend the People’s statemen t the documents did not exist constituted prejudicial misconduct. First, neither defend ant objected below; thus, the argument was forfeited. ( People v. Tully , supra , 54 Cal.4th at p. 1049 [“‘B ecause we cannot assume that an objection and admoniti on would have been futile or in effective, [defendants have] forfeited [their] appellate claim[s] of misconduc t’”].) Second, althou gh it is technically true the People did not know for certain such documents did not exist, it is a logical inference that had Yap possessed documents th at would have substantiated his testimony,21 defendants could have adduced them at trial. There is no eviden ce on this record the People were apprised the documents did exis t. Thus, the People were not contradicting

known but excluded evidence. Third, comments by the People on the ab sence of evidence adduced by the defense are not misconduct if they do not imply the defense had a burde n to produce such evidence. ( People v. Bradford (1997) 15 Cal.4th 1229, 13 39-1341 [“[B]rief comments by the prosecution during closin g argument noting the absence of evidence contradicting what was produced by the prosec ution on several points, and the failure of the defense to

introduce material ev idence or any alibi witnesses” did not constitute misconduct where the People made no “improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence”].) The People made no

insinuation defendants had either the burden of production or proof. Thus, the People did not commit prosecutorial misconduct by asse rting documentary evidence of Yap’s purchase of the equipmen t did not exist.

3. APPEALING TO THE PASSIONS In its rebuttal argument, the People argue d defendants failed “to create a safe living environment free of unsecured firearms , free of narcotics, free of prescription drugs, free of fire hazards, free of dangerous smoke. [¶] . . . [The child] now depends on you.” Mary’s counsel objected on grounds of improper argument. The court overruled the objection. The prosecutor went on to ar gue, “He is dependent upon you now to say that that’s unacceptable. When you take on the role as parent , you need to be a parent. You need to parent that child in a safe and responsible way and create a safe22 environment. He depends on you to tell them this is unacceptable.” Mary’s counsel renewed his objection. The cour t overruled the objection again. 12 Defendants contend the People committed prejudicial misconduct by appealing to the passions of the jury. We disagree. It is improper for the prosecutor to appeal to the passions or prejudices of the jury, particularly with respect to inv oking sympathy for the victim. ( People v. Gonzales (2011) 51 Cal.4th 894, 952 [prejudicial misc onduct where prosecutor read an “extended

and melodramatic oration couche d as a letter to the victim”]; People v. Vance (2010) 188 Cal.App.4th 1182, 1192-1202 [prejudicial misconduct where prosecutor made repeated requests the jury put itself in the victim’s shoes and invocation of “Golden Rule” even after the court’s sustainment of multiple defe nse objections, but trial court’s refusal to issue admonition].) However, here the prosecutor made tw o minor and fleeting references to the

victim that we cannot conclude rendered the entire trial unfair. ( People v. Medina (1995) 11 Cal.4th 694, 759-760 [appellate court reviewing prosecutor’s request the jury “‘do the right thing, to do justice, not for our society, necessarily or exclusively, but for [the victim], an 18-year-old boy who was just wo rking at a gas station one night’ found “no reasonable probability that the prosecutor’s brief and isol ated comments could have influenced the jury’s guilt dete rmination”].) The remarks, he re, are much closer to those

12 The People again argue William forfeite d the argument by failing to object. Again, we hold any objection would have been futile, esp ecially here where Mary’s counsel objected twice and was twice overruled.23 in Medina than Gonzales or Vance ; thus, we hold any misconduct did not result in prejudice to defendants. DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER J.

We concur:

HOLLENHORST Acting P. J.

RICHLI J.