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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELLATE 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 Riverside County. Ronald L. Johnson, 

Judge. (Retired judge of the San Diego Super. 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 the 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, Deputy Attorneys General, for Plaintiff and 

Respondent. 

 A jury convicted defendant and appellant William Steven Bunn of cultivating 

marijuana (Count I—Health and Saf. Code, § 11358); the lesser included misdemeanor 

offense of child endangerment1 (Count II—Pen. Code, § 273a, subd. (b));2 and 

possession of a firearm by a person prohibited to do so (Count III—Pen. Code, § 12021, 

subd. (c)(1)). The same jury convicted defendant and appellant Mary Allison Bunn of 

cultivating marijuana, (Count I—Health and 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-month aggregate term of imprisonment. It 

granted Mary probation. 

 On appeal, Mary contends: (1) the trial court erred by declining to quash the 

search warrant and exclude all evidence discovered 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 evidence does not support her conviction for 

misdemeanor child endangerment. William maintains the People committed several acts 

 1 The jury found both defendants 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 sake 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’ claims. We affirm the judgment. 

FACTUAL AND PROCEDURAL HISTORY

 Special Agent Eric Ball of the Drug Enforcement 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 conducting surveillance of the 

home. On July 31, 2008, he noticed “a heap of debris including . . . ventilation ducting, 

empty grow light boxes, and the type of debris that [he] would expect to see from a 

marijuana-cultivation operation.” 

 On August 1, 2008, Ball again conducted surveillance of Lilac Road. He followed 

two vehicles that left the home. One was registered 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 surveillance 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 plastic tarp had been hung in the window but 

enough seam where the bright light was shining 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 led 
4

him toward the same area in Murrieta to which he had previously been led, but to a 

specific residence on Catt Road (hereinafter “Catt Road”). Ball surveilled the home with 

binoculars. He observed Childers exit his vehicle and enter a detached garage on the 

property. 

 On August 21, 2008, Ball again conducted surveillance of Catt Road. He 

observed three vehicles on the property. One was registered to defendants, one to 

Childers, and the remaining to Yap. Ball saw William, Childers, and Yap exit the 

detached garage. It appeared the three men were working together; they went to Yap’s 

car where they retrieved a box. 

 Ball witnessed Mary exit the residence with 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 thereafter. 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 being an active site for marijuana cultivation 

(Lilac Road) to another address (Catt Road), where his focus was on the detached garage. 

 In August 2008, Detective 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 enforcement officers who enforced drug laws within 

southwest Riverside County. Holder conducted a separate surveillance of Catt Road on 

August 26, 2008. Ball conveyed his observations to Holder; Holder drafted an affidavit 

and declaration in support of a search warrant for Catt Road. Warrants were obtained for 
5

both Lilac Road and Catt Road; they were executed at the same time so the occupants of 

one residence could not notify those in the other. Ball participated in the search of Lilac 

Road. 

 On August 27, 2008, Holder participated in a search of Catt Road, defendants’ 

home. Presearch and postsearch videos of the location were recorded and played for the 

jury. In the detached garage, officers found a “grow-room” in which 79 live marijuana 

plants approximately one and a half to two feet in height, some of which were budding, 

were found; the door to the grow-room was unlocked. 

 The grow-room had an electrical bypass, allowing the use of electricity directly 

from the grid, bypassing that supplied to the residence; Holder testified this is a technique 

typically used to hide illegal marijuana cultivation 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 horse, 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 inside. On the kitchen countertop, they found 

a clear plastic baggie with marijuana 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 Department 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 defendants’ 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-action 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 magazine 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 for assault by force by means likely to produce 

great bodily injury, which prohibited him from possessing a firearm. Based on the 

totality of the circumstances, Holder came to the conclusion 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 times were hard.” William admitted using marijuana. Mary 

indicated she frequented the garage. Neither defendant possessed a valid medical 

 5 Detective Robert McRae of the Riverside 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 pistol in a cabinet above the refrigerator. 
7

marijuana card nor recommendation at the time 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 residence. She interviewed defendants. William told her they 

had the firearms to scare off coyotes. He told her he had been cultivating marijuana for at 

least two weeks because he needed to supplement his income. Mary said she knew 

nothing about the marijuana cultivation; however, Moore found that difficult to believe 

due to the toddler toys found in the garage. Defendants both admitted smoking 

marijuana. Moore observed unsecured marijuana in the home. She made the decision to 

place defendants’ child in protective custody. 

 Detective McRae also responded 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 hazard 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 bedroom; McRae was concerned that the child 

could ingest any of the unsecured marijuana found in the home. 

 After completing the search of defendants’ home, Holder executed a warrant at 

Yap’s home and determined the marijuana growing at the home was within the confines 

of the law; hence, Yap was not arrested. Yap 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 patients . . . for various needs under [the California’s 
8

Compassionate Use Program].” The parties stipulated the HKC “‘was a valid authorized 

legal collective on or about 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 using a portion of William’s garage to grow 

marijuana. Yap was responsible 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 recompense for water and electricity; once they 

became members of the collective, defendants would receive some of the marijuana. Yap 

and Childers brought the marijuana plants into the garage one week prior to August 27, 

2008. The grow-room was completely 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 plants; none of them were mature enough to 

contain any usable marijuana. 

 Yap testified he never discussed 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 penalty of perjury 

reflecting that William was growing the marijuana for him. Yap testified the declaration 

was prepared by someone else and was inaccurate. 
9

 Mary testified she brought the handgun into 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 and marijuana were in a can located in the kitchen cupboard, 

not on the counter. There was no unsecured marijuana in the home. The baby gate was 

up and secure on August 27, 2008. Mary testified she was not involved in the cultivation 

of marijuana, but knew of its existence. The stroller and rocking horses were being 

stored in the garage; they were not being used by her child. There were no baby toys in 

the master bedroom. 

DISCUSSION 

 A. MOTION TO QUASH WARRANT

 Mary contends the court erred in refusing to quash the search warrant, because 

Holder either deliberately or recklessly failed to disclose in his affidavit in support of the 

warrant the fact that Yap was operating a legal medical marijuana collective. We 

disagree. 

 Holder submitted an affidavit in support of a search warrant of Catt Road on 

August 22, 2008. Holder recited his experience 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 consisting of agents and officers from the DEA, 

Ontario Police Department, United States Immigration and Customs Enforcement, 

 8 On cross-examination, Mary admitted she showed the guns to William. 
10

Riverside Police Department, Riverside County Sheriff’s Department, San Bernardino 

County Sheriff’s Department, and the IRS. 

 Ball had received information from a reliable, confidential informant regarding an 

indoor hydroponic marijuana grow inside Lilac Road. Further investigation revealed the 

home belonged to Childers. Holder noted Childers had convictions 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 went to Lilac Road and observed discarded ventilation 

ducting, ducting couplings, vents, fans, and a reflective hood box piled in the driveway. 

Based on his training and experience he believed such objects were used as part of 

marijuana cultivations. On August 1, 2008, Ball walked to the garage door of Lilac 

Road, where he observed an amber light similar to that used by high intensity bulbs 

specifically used to grown indoor marijuana. He also smelled the odor of cultivated 

marijuana emanating from the slightly open garage window and window next to the front 

door. He additionally noted the sound of what he believed to be irrigation systems used 

in the cultivation of marijuana. 

 On August 20, 2008, Ball followed Childers’s vehicle from Lilac Road to Catt 

Road. William had prior convictions on March 20, 2003, and November 5, 2005, for 

being under the influence of a controlled substance. 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 informed him Catt Road had several spikes in 
11

electrical usage, including recent bills showing three times that of what a regular 

residence of its size uses. Holder opined Catt Road was being 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 filed 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 the affidavit in support of the search warrant. Counsel 

attached the declaration of Yap in which he affirmed he was the President of HKC, a 

nonprofit medical marijuana cooperative, and that William 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 and a valid identification card issued by 

the State of California for medical marijuana. I never discussed the details of the 

enterprise with Mary Bunn and she had absolutely nothing to do with the operation.” 

 Yap further declared, “I was responsible for purchasing the plants and [William] 

was just growing them for me because he had the facilities. Mary . . . did not know 

anything about the operation, and I never discussed the operation with her . . . .” Yap 

asserted that Holder informed him Yap’s operation was lawful under state law. 

 Without holding an evidentiary hearing, the court denied the motion reasoning 

“your argument today is that [Holder] should 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 declarations that specifically 
12

support the position Deputy Holder recklessly acted with disregard for the truth or made 

false statements or omissions on statements raised in argument and supposition by the 

defendant, the Court finds good cause to deny the motion to quash.” 

 “A defendant who challenges a search warrant based on omissions in the affidavit 

bears the burden of showing an intentional or reckless omission of material information 

that, when added to the affidavit, renders it insufficient to support a finding of probable 

cause. [Citations.] . . . [T]he 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 determine whether the remaining content of the 

affidavit is sufficient to establish 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 the . . . 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 connected, knew Yap operated a legally valid medical 

marijuana cooperative. Mary’s suggestion Holder “very likely knew about Yap’s lawful 

operation” is pure conjecture. In fact, the only evidence of such knowledge 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 contradicted 
13

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 POSSESSION AS A LESSER INCLUDED 

OFFENSE OF CULTIVATION

 Mary contends the trial court erred in denying 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 possession, then you don’t 

need to be a qualified patient, and you don’t need to be a caregiver. Mr. Yap’s testimony, 

as indicated in our report, will say that the marijuana that was found 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 responded “[Defense counsel] is completely 

accurate. . . . [I]t would be a defense if believed by the jury.” 

 After the People rested its case, but before the defense put on theirs, Mary’s 

counsel requested the court instruct the jury on possession as a lesser included offense of 

cultivation: “Your Honor, I believe it’s just simple possession. There was evidence in 

this case that there was marijuana in the master bedroom and also in the kitchen area. 

There was testing done, and I believe we had an expert that testified that he tested a plantlike substance that revealed it was marijuana. That’s simple possession.” The court 

denied the request. 
14

 “[A] trial court is obligated to instruct the jury on all 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 offense when the evidence raises a question whether all of 

the elements of the charged offense were present, 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 trial 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 substantial 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 presented 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 lesser 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, because they were not charged with any offenses for that 

behavior. As the court correctly pointed out, defendants were charged with cultivation 
15

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 sufficiency 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 discloses 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 reasonable doubt.” [Citations.] We presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the evidence. 

[Citation.] [¶] The same standard of review applies to cases in which the prosecution 

relies primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances 

reasonably justify the jury’s findings, the judgment may not be reversed simply because 

the circumstances might also reasonably be reconciled with 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] child to be placed in a situation where his or her person or 

health may be endangered, is guilty of a misdemeanor.” (§ 273a, subd. (b); CALCRIM 

No. 823.) 
16

 Here, sufficient evidence was adduced that defendants’ actions placed their child 

in a situation in which his health might be endangered. Although Holder testified he saw 

a baby gate, he said it was down when the search warrant was 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 reach of the child. Moore observed unsecured marijuana in 

the home, including on the counter in the kitchen, within reach of the child. Officers also 

found a usable amount 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 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 the 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 bedroom when confronted with the presearch 

video of the master bedroom. We disagree. MacRae’s testimony on cross-examination 

acknowledged the presearch video apparently did 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 testified 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 most favorable to the judgment” there was 

substantial evidence in the record 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 adduced evidence a shotgun was 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, this was sufficient circumstantial evidence for 

the jury to determine defendants’ 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 grow-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 misdemeanor child endangerment. 

 D. PROSECUTORIAL MISCONDUCT

 William argues the People engaged in several acts of prejudicial prosecutorial 

misconduct during its closing and rebuttal arguments. 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 the 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 testified during cross-examination someone informed 

him the shotgun was found on the bed. Although 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 which defense counsel posited, “If I were to tell 

you that is the shotgun and location it was found,” he did not repudiate his prior 

testimony that he was told the shotgun was found on the bed. Thus, viewing the evidence 

“in the light most favorable to the judgment,” there was substantial evidence in the record 

to support a jury’s determination that the shotgun was found on the bed in the master 

bedroom. (People v. Livingston, supra, 53 Cal.4th at p. 1170.) 
18

 Misconduct by the prosecutor violates the federal Constitution when it 

“‘“‘comprises a pattern of conduct “so egregious 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.) “‘Conduct by a prosecutor that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct 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 discretion to state its views as to what the 

evidence shows and what inferences may be drawn therefrom.’” [Citation.]’ [Citation.] 

When we review a claim of prosecutorial remarks constituting misconduct, we examine 

whether there is a reasonable likelihood that the jury would have understood the remark 

to cause the mischief complained of. [Citation.]’ [Citation.] ‘To prevail on a claim of 

prosecutorial misconduct based on remarks to the jury, the defendant must show a 

reasonable likelihood the jury understood or applied the complained-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 rather 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 argued, “Defense counsels want[] you to 

believe this case is about medical marijuana. But you didn’t hear any testimony about 
19

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 come back with a verdict of not guilty. 

But the stipulation is simply not relevant because [defendants] are charged with 

cultivating marijuana, and they are the only defendants in this case. Mr. Yap is not a 

defendant. No members of that collective are a defendant. The only people charged with 

cultivating marijuana are the people who resided at the area in the land that had the 

marijuana grow. Don’t be misdirected, folks. It’s the defense attorney’s job to misdirect 

you.”11

 Mary’s counsel objected on the grounds 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 instructions are meant to keep you on that path, that path of 

knowledge, that path of understanding, that path of wisdom.” 

 Although we in no way condone such argument, we find 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 objectionable 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 William 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 already 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 should focus on the evidence and not on the arguments. 

(Breaux, at pp. 305-306 [if the defense has neither 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 prosecutor that defense counsel’s job was 

to put up straw men, smoke, and red herrings].) Thus, we hold no misconduct occurred. 

 2. CONTENTION THAT EVIDENCE DID NOT EXIST 

 During its rebuttal argument, the People argued, “Defense argues Christopher Yap 

could be ordered to produce receipts. I [do not] know where 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 that you purchased the equipment 

for the collective operating lawfully, why not just bring the receipts in? Obviously, you 

need to keep them because you have to charge each member of your collective their 

proportion[al] share. Surely, you have records. Why not bring them in? Because they 

don’t exist. Because this was [defendants] cultivating this room.” 

 Defendants contend the People’s statement the documents did not exist constituted 

prejudicial misconduct. First, neither defendant objected below; thus, the argument was 

forfeited. (People v. Tully, supra, 54 Cal.4th at p. 1049 [“‘Because we cannot assume 

that an objection and admonition would have been futile or ineffective, [defendants have] 

forfeited [their] appellate claim[s] of misconduct’”].) Second, although 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 that would have substantiated his testimony, 
21

defendants could have adduced them at trial. There is no evidence on this record the 

People were apprised the documents did exist. Thus, the People were not contradicting 

known but excluded evidence. 

 Third, comments by the People on the absence of evidence adduced by the defense 

are not misconduct if they do not imply the defense had a burden to produce such 

evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339-1341 [“[B]rief comments 

by the prosecution during closing argument noting the absence of evidence contradicting 

what was produced by the prosecution on several points, and the failure of the defense to 

introduce material evidence 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 asserting documentary evidence of Yap’s 

purchase of the equipment did not exist. 

 3. APPEALING TO THE PASSIONS

 In its rebuttal argument, the People argued 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 argue, “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 safe 
22

environment. He depends on you to tell them this is unacceptable.” Mary’s counsel 

renewed his objection. The court 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 invoking sympathy for the victim. (People v. Gonzales

(2011) 51 Cal.4th 894, 952 [prejudicial misconduct where prosecutor read an “extended 

and melodramatic oration couched 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 defense objections, but trial court’s refusal to 

issue admonition].) 

 However, here the prosecutor made two 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 working at a gas station one night’ found “no 

reasonable probability that the prosecutor’s brief and isolated comments could have 

influenced the jury’s guilt determination”].) The remarks, here, are much closer to those 

 12 The People again argue William forfeited the argument by failing to object. 

Again, we hold any objection would have been futile, especially 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.