People v. Morales

*50 KENNARD, J., Concurring and Dissenting.

Both Justice Mosk’s majority opinion and Justice Brown’s dissenting opinion conclude that evidence of a defendant’s ingesting an illegal drug is, standing alone, insufficient to support a conviction for possessing that drug. (Maj. opn., ante, at p. 45; dis. opn., post, at pp. 56-57.) I agree.

I disagree, however, with the majority’s conclusion that the prosecutor did not commit misconduct when, in closing argument, he repeatedly told the jury that because defendant was under the influence of phencyclidine, defendant necessarily must be guilty of having possessed the drug, or he could not have reached this state of intoxication. (See generally People v. Hill (1998) 17 Cal.4th 800, 829-830 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ] [it is misconduct for the prosecutor to misstate the law in closing argument]; People v. Marshall (1996) 13 Cal.4th 799, 831 [ 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ] [same]; People v. Bell (1989) 49 Cal.3d 502, 538 [ 262 Cal.Rptr. 1 , 778 P.2d 129 ] [same].) On this point, I agree with the dissent that the prosecutor’s comments were highly improper.

Defendant, however, has not preserved this issue for appeal, because he never objected to the prosecutor’s argument, nor did he ask the trial court to admonish the jury to disregard it. (See generally People v. Osband (1996) 13 Cal.4th 622, 696 [ 55 Cal.Rptr.2d 26 , 919 P.2d 640 ].) Justice Brown’s dissent, which characterizes the prosecutor’s argument as an “erroneous theory of guilt,” maintains there was no need for defendant to object, because the prosecutor’s erroneous theory “differs qualitatively from a simple misstatement of a legal principle.” (Dis. opn., post, at p. 54 & fn. 2.) I do not share that view. The dissent distinguishes the prosecutor’s argument here from a prosecutor’s misstatement of the law on reasonable doubt. The latter situation, the dissent notes, does require an objection; otherwise, the issue is not preserved for appeal. (See People v. Green (1980) 27 Cal.3d 1, 34-35 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ].) I see no good reason for requiring an objection when a prosecutor misstates to the jury the law on proving a criminal defendant’s guilt beyond a reasonable doubt, a concept that lies at the heart of this nation’s system of justice, but not insisting on it when, as here, a prosecutor inaccurately describes the quantum of evidence necessary to support a conviction. The dissent also states that Griffin v. United States (1991) 502 U.S. 46, 52-54, 58-59 [ 112 S.Ct. 466, 470-472, 473-474 , 116 L.Ed.2d 371 ], People v. Guiton (1993) 4 Cal.4th 1116, 1121-1122, 1128-1129 [ 17 Cal.Rptr.2d 365 , 847 P.2d 45 ], and People v. Green, supra, 27 Cal.3d 1, 65-74 , establish that “when a prosecutor advances an erroneous theory of guilt that jury instructions fail to clarify, the result is legal error for which the reviewing court may reverse irrespective of a contemporaneous objection.” (Dis. opn., post, at p. 54 , fn. 2.) These cases do not at all so hold.

*51 Defendant may well be able to argue successfully that his counsel’s failure to object to the prosecutor’s argument violated his right to the effective assistance of counsel. But defendant does not argue that on appeal here. Understandably so. As this court has repeatedly said, such claims are more appropriately made in a petition for writ of habeas corpus, where any possible tactical basis for counsel’s actions can be explored at an evidentiary hearing. (See, e.g., People v. Diaz (1992) 3 Cal.4th 495, 557-558 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ].) Although it may be difficult to perceive a tactical basis for counsel’s failure to object in this case, I see no need to decide this issue because it is not before us.

The dissenting opinion also concludes that the evidence is insufficient to support defendant’s conviction. That issue too is not before us. Therefore, like the majority, I do not reach it.

For these reasons, I agree with the majority’s affirmance of the judgment of the Court of Appeal.