People v. Heilman CA2/3

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B295703

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA466367
v.

JOSEPH HEILMAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Drew E. Edwards, Judge. Affirmed.
G. Martin Velez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted defendant Joseph Heilman of felony
possession of methamphetamine with the intent to sell. On
appeal, defendant contends: (1) the court should have declared a
mistrial after the arresting officer volunteered improper
testimony about defendant’s criminal history; and (2) the
prosecutor committed prejudicial misconduct during closing
argument. We affirm.

FACTS AND PROCEDURAL BACKGROUND

On February 23, 2018, defendant was driving near York
Boulevard and North Avenue 50 in the Highland Park
neighborhood of Los Angeles. Around 8:00 p.m., Jon Daymen, an
officer with the Los Angeles Police Department (LAPD), and his
partner, Officer Reyes,1 stopped defendant’s car because its
registration tags were expired.
During the stop, defendant told the officers that he had a
“scale, a black case, and his dope” underneath one of the seats of
his car.2 Reyes searched the car and found a black cartridge
containing a bag holding nearly 21.5 grams of
methamphetamine, a scale, and three empty sandwich bags.
Defendant told the officers he had just purchased the
methamphetamine.

1 At the time of trial, Reyes no longer worked for the LAPD.
2Prior to trial, defendant and the People stipulated that the search of
defendant’s car was legal to prevent the jury from hearing evidence
that defendant was on probation at the time of the traffic stop, which
subjected him to search conditions.

2
 Reyes also found two cellular phones on defendant, but
defendant didn’t have any money on him or inside his car. The
officers didn’t find any items for using methamphetamine, such
as a pipe or a syringe, and defendant didn’t appear to be under
the influence of methamphetamine or any other substance.
Michael Geitheim, an LAPD officer, testified as the People’s
narcotics expert. According to Geitheim, the area of Highland
Park where defendant was arrested has a lot of drug activity,
including the sale of methamphetamine.
A usable dose of methamphetamine for a typical user is
about 0.02 grams. The drug is typically sold in plastic sandwich
bags, and users who come into contact with police often carry
between .10 grams and 1 gram of methamphetamine. 21.5 grams
of methamphetamine would provide a single daily user between
500 and more than 1,000 doses, and it would take about one year
to consume. That amount of methamphetamine would sell on the
street for between $850 to several thousand dollars. According to
Geitheim, it is uncommon for someone to possess 21.5 grams of
methamphetamine for personal use only, and he had never
encountered anyone carrying that much methamphetamine
solely for personal use.
The amount of methamphetamine defendant was carrying
in his car could be divided nearly evenly into three 7-gram
increments. Seven grams of methamphetamine is the equivalent
of two “eight balls,” or two eighths of an ounce. According to
Geitheim, methamphetamine and other drugs are “commonly
sold” in eight-ball units. Sellers of methamphetamine often use
scales, like the one found in defendant’s car. Sellers also may
carry two phones—one for facilitating drug sales and the other
for personal use.

3
 When Geitheim was presented a hypothetical scenario
based on the facts of this case, he opined that defendant intended
to sell the methamphetamine found inside his car. Specifically, he
based his opinion on the following factors: (1) the amount of
methamphetamine—both the large quantity and that it was
divisible into eight-ball units; (2) the presence of a scale and
empty sandwich bags; (3) the lack of paraphernalia for using the
drug; (4) defendant’s lack of any symptoms of being under the
influence of the drug; (5) the presence of two cellular phones; and
(6) that the drug was hidden under the seat of defendant’s car.
Defendant was arrested and charged with felony possession
of methamphetamine with the intent to sell (Health & Saf. Code,
§ 11378). At trial, defendant conceded he possessed the
methamphetamine and other items found during the search of
his car. He contested only whether he possessed those items with
the intent to sell the drug. A jury convicted defendant of
possessing methamphetamine with the intent to sell, and the
court sentenced him to two years in prison.3
Defendant appeals.

DISCUSSION

Improper Character Testimony
Defendant contends the court erred in denying his motion
for a mistrial after Daymen volunteered testimony about
defendant’s criminal history. While we agree that Daymen’s

3As a result of defendant’s conviction in this case, the court found he
was in violation of probation in two other cases. The court ordered
defendant’s two year sentence in this case to run concurrently with his
sentence of six years and four months in those cases.

4
testimony was improper, the court did not abuse its discretion in
denying defendant’s motion.
1. Relevant Background
While cross-examining Daymen, defense counsel asked the
officer whether he knew “how long [defendant] has been using
drugs.” The prosecutor objected to defense counsel’s question,
which the court overruled. Daymen initially responded,
“[Defendant] is a chronic offender in Northeast Division. I can
answer the question.”
Defense counsel and Daymen then engaged in the following
exchange:

“Q: Do you know how long [defendant’s] been using? Do
you have personal knowledge of how many years he’s
been using?

[¶] … [¶]

“A: [Defendant] is a chronic offender in Northeast
Division which he has come in contact with many
officers and I have had contact with [him] in the past.
[¶] During the stop, I recognized him, but I didn’t
remember where because I had been out of the field
for some time because I had a cardiac issue on the job
where I had been out for almost 11 months. So during
the traffic stop, I recognized him from the past. I just
didn’t know from where. So either I stopped him in
the past or in a pedestrian stop or a traffic stop or I
arrested him in the past. [¶] We were talking when
he was in the back of the car, and I was telling him

5
 about my medical issue. So I don’t know how long
he’s been using meth, but he is a known narcotics
user to officers in Northeast Division. Which officers,
I don’t know.

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

“A: Yes. On this chronic offender list that was at the
station which he was taken off of after being
arrested, he was listed on there of being an offender
of 10851 which is driving without owner consent,
basically driving a stolen car.

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

“A: That I don’t know.

“Q: So the answer to the earlier question, to make it
short, you don’t know how long he’s been using
methamphetamine?

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

After Daymen’s cross-examination, defense counsel moved
for a mistrial, arguing Daymen improperly testified about
defendant’s criminal history, including prior contacts with the
police and an arrest for driving a stolen vehicle. The court denied
the motion, reasoning that “counsel opened the door, and the
officer simply gave the reasons why, what his knowledge was as
to [defendant] in his prior judgment. In [the court’s] view, the

6
defense counsel opened the door for the officer to give his honest
answer regarding [defendant’s] prior drug use.” The court then
instructed the prosecutor not to question Daymen about
defendant’s prior convictions and contacts with the police, but it
told the prosecutor he could ask Daymen to define what a
“chronic offender” means.
During Daymen’s redirect examination, the prosecutor
asked the officer to explain what he meant when he testified that
defendant is a “chronic offender.” Daymen replied, “There is a
sheet that is given to us by our detectives. There is a whole bunch
of individuals. It could be a variety of different types of crimes
that occurred. We are only given that list. If we ever come in
contact with that person, that we are aware of whatever the
circumstances may be. I wasn’t saying he was guilty right then
and there. I didn’t even know he was at York and Avenue 50. [¶]
A chronic offender means there is a list of individuals that have
come in contact with the police, and it could be a variety of
different reasons. If an officer comes into contact, hey we want to
let you know this is A through Z, a safety issue, or if the public
says blah, blah, blah, blah.”
During closing argument, the prosecutor referenced
Daymen’s testimony, telling the jury that defendant “is a chronic
offender, a law breaking offender.”
2. Applicable Law and Standard of Review
A court should grant a mistrial if it “ ‘is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.]’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 683
(Ledesma).) In other words, a mistrial is warranted “when
defendant’s ‘ “ ‘ “chances of receiving a fair trial have been
irreparably damaged.” ’ ” ’ [Citation.]” (People v. Williams (2016)

7
1 Cal.5th 1166, 1185 (Williams).) A witness’s volunteered
statement can provide a basis for a mistrial when it causes
incurable prejudice. (Ledesma, at p. 683.) But it is only in the
“exceptional case” that improper testimony is of such a character
that its negative effect cannot be cured by the court’s
admonitions. (People v. Olivencia (1988) 204 Cal.App.3d 1391,
1404 (Olivencia).)
“Whether an incident is prejudicial and requires a mistrial
is ‘by its nature a speculative matter,’ and the ‘ “trial court is
vested with considerable discretion in ruling on mistrial
motions.” ’ [Citation.]” (Williams, supra, 1 Cal.5th at p. 1185.) We
therefore review a court’s denial of a mistrial for abuse of
discretion. (People v. Bolden (2002) 29 Cal.4th 515, 555.)
3. The court did not abuse its discretion in denying
defendant’s request for a mistrial.
Under Evidence Code section 1101, evidence of a
defendant’s prior criminal acts is generally inadmissible to prove
the defendant’s propensity to commit the charged offense. (Evid.
Code, § 1101, subd. (a); People v. Cole (2004) 33 Cal.4th 1158,
1194.) While exceptions to this rule exist, such as the admission
of evidence of prior domestic violence or sex-related conduct to
prove the defendant committed a charged offense involving
similar conduct (Evid. Code, §§ 1108 [sex-related conduct], 1109
[domestic violence]), or the use of evidence of prior bad acts to
prove a fact other than the defendant’s propensity to commit the
charged offense (Id., § 1101, subd. (b)), it is undisputed that none
of these exceptions apply to Daymen’s testimony about
defendant’s criminal history.
The court nevertheless found defendant invited Daymen’s
testimony when defense counsel asked the officer if he knew how

8
long defendant had been using methamphetamine or drugs in
general. (See People v. Visciotti (1992) 2 Cal.4th 1, 72 [a
defendant cannot claim the trial court erroneously admitted
evidence of prior bad conduct when the defendant elicited or
introduced such evidence].) We disagree that defense counsel’s
questions opened the door for Daymen to testify generally about
defendant’s criminal history.
Daymen’s testimony that defendant was a “chronic
offender” who had been convicted of driving a stolen vehicle did
not fall within the scope of defense counsel’s questions concerning
the officer’s knowledge of defendant’s drug use. Counsel’s first
two questions asked only whether Daymen knew the extent of
defendant’s drug use; counsel didn’t ask the officer whether he
knew the extent of defendant’s criminal record. Although defense
counsel eventually asked Daymen whether defendant had been
arrested for selling drugs, that was only after Daymen had
repeatedly testified about defendant’s criminal history, and that
question didn’t call for any response concerning defendant’s non-
drug-related offenses. Moreover, Daymen never testified that
defendant’s status as a “chronic offender” stemmed from the
officer’s personal knowledge of defendant’s drug use. Although he
claimed defendant was a “known narcotics user to officers in
Northeast Division,” Daymen later testified he didn’t know which
officers were aware of defendant’s drug use. Indeed, Daymen
eventually testified that he had no knowledge of how long
defendant had been using methamphetamine or any other drugs.
That was the only response Daymen should have provided when
defense counsel asked him whether he knew how long defendant
had been using drugs.

9
 Even though Daymen improperly testified about
defendant’s criminal history, the court didn’t err in denying
defendant’s request for a mistrial. (Ledesma, supra, 39 Cal.4th at
p. 683 [improper testimony warrants mistrial only when it
irreparably prejudices the defendant’s right to a fair trial].) After
Daymen testified about defendant’s criminal history, defense
counsel never sought to strike Daymen’s testimony, nor did she
request the court to admonish or instruct the jury not to consider
that testimony. As noted above, it is only the “exceptional case”
where a court’s admonition cannot cure the prejudicial effect of
improper character testimony. (Olivencia, supra, 204 Cal.App.3d
at p. 1404.) This is not an exceptional case.
At trial, defendant conceded that he possessed the
methamphetamine, three empty sandwich bags, scale, and two
cellular phones found during the search of his car. He contested
only whether he possessed the methamphetamine with the intent
to sell. The evidence at trial overwhelmingly contradicted this
defense.
As the People’s narcotics expert testified, the nearly 21.5
grams of methamphetamine defendant possessed would take a
typical daily user more than a year to consume. It was therefore
highly unlikely defendant possessed such a large amount of
methamphetamine solely for personal use. Defendant also
displayed no symptoms of being under the influence of
methamphetamine, and he was not carrying paraphernalia to use
the drug, further contradicting his defense. In addition to the
large amount of methamphetamine, defendant possessed empty
sandwich bags, in which the drug is commonly sold. And the
amount of methamphetamine defendant possessed was divisible
into commonly sold quantities of the drug that could be evenly

10
distributed among the empty bags. That defendant had two
cellular phones on his person further bolsters the inference that
he possessed the methamphetamine with the intent to sell since
drug dealers often carry separate phones—one for personal use
and one to facilitate drug sales.
In short, because any error in admitting Daymen’s
testimony did not result in incurable prejudice, the court did not
abuse its discretion when it denied defendant’s motion for a
mistrial.
Prosecutorial Misconduct
Defendant next contends the prosecutor committed several
instances of prejudicial misconduct during closing argument.
Specifically, defendant argues the prosecutor: (1) disparaged
defense counsel; (2) relied on facts outside the record; (3) misled
the jury; and (4) improperly vouched for the credibility of Daymen
and Geitheim. As we explain below, defendant has forfeited two
of his challenges to the prosecutor’s argument. To the extent
defendant has preserved his claims, any misconduct was
harmless.
1. General Legal Principles and Standard of Review
A prosecutor commits prejudicial misconduct under the
federal constitution when he engages in conduct that is so
“ ‘ “ ‘ “egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process.” ’ ” [Citations.]’ ”
(People v. Navarette (2003) 30 Cal.4th 458, 506.) Under California
law, a prosecutor commits reversible misconduct if he makes use
of “ ‘deceptive or reprehensible methods’ when attempting to
persuade either the trial court or the jury, and it is reasonably
probable that without such misconduct, an outcome more

11
favorable to the defendant would have resulted.” (People v.
Riggs (2008) 44 Cal.4th 248, 298.)
A prosecutor is afforded “wide latitude” during closing
argument. (People v. Williams (1997) 16 Cal.4th 153, 221.) The
argument may be vigorous and incorporate appropriate epithets
as long as it amounts to fair comment on the evidence, and it may
include reasonable inferences drawn from the evidence. (Ibid.)
“[W]hen the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.” (People v.
Samayoa (1997) 15 Cal.4th 795, 841.) “ ‘In conducting this
inquiry, we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’ [Citation.]” (People v. Brown (2003) 31
Cal.4th 518, 553–554.)
2. Relevant Background
2.1. Argument Addressing Reyes’s Missing Body
Camera Footage
At trial, defense counsel asked Daymen whether Reyes’s
body camera footage from the search of defendant’s car was
available. Daymen explained that the footage was stored in the
“body worn system at the Los Angeles Police Department.”
Although Daymen could not access and had never viewed footage
from Reyes’s body camera depicting the search of defendant’s car,
he suggested such footage might exist. Because Reyes no longer
worked for the LAPD, any footage from his camera would have to
be obtained through a subpoena.

12
 The prosecutor later complained that the jury would likely
question why the footage of the search of defendant’s car from
Reyes’s body camera had never been presented at trial. The
prosecutor stated he had obtained some footage from the camera,
which he had turned over to the defense, but the footage didn’t
depict any part of the search of defendant’s car. The court
excluded the footage from Reyes’s body camera.
Before closing argument, the prosecutor asked the court to
preclude defense counsel from asking the jury to question why
footage of the search of defendant’s car from Reyes’s body camera
had never been presented at trial. The court denied the
prosecutor’s request because the missing body camera footage
was a “core issue in this case.”
During closing argument, defense counsel stated: “Officer
Reyes resigned shortly after this incident. The body cam is
something you heard that they wear so that everything they do is
captured. [¶] Magically the body cam and the search of
[defendant] disappeared. The whole thing. We searched the
vehicle very carefully. We searched and found the phones on him.
None of that is captured on the body cam, but disappeared
somehow. There is no way for any of us to see what really went
on.”
During rebuttal, the prosecutor responded to defense
counsel’s argument concerning Reyes’s body camera: “[Defense
counsel] mentioned Officer Reyes’s body worn video and how it
magically disappeared. She is in possession of Officer Reyes’s
body worn video. Every piece of evidence to turn over to her and
she has right now[.]” Defense counsel objected to the prosecutor’s
argument, stating it “is not true.” The court overruled the
objection, noting that counsel’s statements were “argument.”

13
 The prosecutor continued, “When she gets up and makes
you think I am hiding something it is a bad faith argument. She
has all of the body worn videos that I have. If there is anything
that could have helped her case, she has the entire right to get up
here and show you what she thinks would help. She can play the
body worn video if she wants to.” Defense counsel objected again,
arguing the prosecutor was improperly shifting the burden of
proof. The court overruled defense counsel’s objection.
The prosecutor went on, “You can do nothing. If she had
something in the video that she thought would prove her defense,
she could have played that video. I just want you guys to know
everything that I have[,] she has. [¶] I will preface by saying she
is not required to produce any evidence. She can take a nap, rest.
… [¶] If they wanted to present that evidence they could have. If
they wanted to present evidence to you in the form of that body
worn video that magically disappeared, they could have.”
After defense counsel objected, stating that defendant was
not in possession of any body camera footage of the search, the
court called both attorneys to a sidebar. The court told the
prosecutor and defense counsel that it didn’t believe the
prosecutor’s argument was burden shifting, and that the two
sides should not be arguing about whether there was a discovery
violation. After the prosecutor told the court that “everything has
been turned over to defense counsel,” the court stated, “I don’t
think you can go into that anymore. You certainly have the right
to feel they could call logical witnesses. This is a proper
argument. I don’t think there is a discovery violation. The
defense objection is overruled.”

14
 2.2. Argument Addressing the Officers’ Credibility
During closing argument, defense counsel asked the jury to
question Geitheim’s credibility: “The expert witness—I think both
officers testified to some extent as experts. He is not going to
come here and say, you know, I don’t think possession was for
sale. I think it was for personal use. Of course, he is going to say
it is for sales. He is going to say whatever he can to support his
opinion.”
On rebuttal, the prosecutor responded: “The defense talked
about how there are officers that testified. You have to judge
them as witnesses. Look at them and see if they are biased.
Maybe the expert got up here and had his mind made up. He is
not going to get up here and say he didn’t possess it for sale. He is
not going to get up here and tell you something that isn’t true. [¶]
If you think about that argument, that means you have these two
cops that have combined 40 years of experience on the force
coming in here to lie to you guys under oath about a meth sales
case. They are not going to risk their careers and say this guy
possessed meth for sale just on a whim just because they wanted
to. [¶] They swore to tell the truth. He told you about the stop
and what he found. He thought this guy possessed it for sale. [¶]
[The drug expert] came in here [and] told you based on his
experience what he thought. To question those two officers’
credibility doesn’t make sense. There is nothing they said that
causes you guys to believe that they had a bias against this
defendant. They got up here and risked their careers to lie to you
about possession of meth for sales case. This is not a murder case
where they are going to get up here and say, “hey, he possessed
this for sale.”

15
 Defendant did not object to any of the prosecutor’s
statements concerning the officers’ credibility.
3. Forfeiture and Ineffective Assistance of Counsel
As a preliminary matter, defendant has forfeited two of his
claims of prosecutorial misconduct by failing to object below. To
preserve a claim of prosecutorial misconduct on appeal, a
defendant must make a timely and specific objection and request
an admonition. (People v. Clark (2016) 63 Cal.4th 522, 577
(Clark).) Otherwise, the argument is reviewable only if an
objection would have been futile or an admonition would not have
cured the harm caused by the misconduct. (Ibid.)
First, defendant forfeited his claim that the prosecutor
improperly attacked defense counsel’s integrity. Although
defendant objected that the prosecutor was shifting the burden of
proof after he argued that defense counsel could show the jury
any footage from Reyes’s body camera that she believed would
help defendant’s case, defendant never objected to the
prosecutor’s statement that defense counsel’s argument was
made in bad faith. (People v. Winbush (2017) 2 Cal.5th 402, 484
[defendant’s failure to object to prosecutor’s argument that
defense counsel “ ‘intentionally misled’ ” the jury forfeited any
claim on appeal that the prosecutor’s argument was misconduct].)
Defendant does not argue it would have been futile to object that
the prosecutor improperly disparaged defense counsel or that an
admonition by the court instructing the jury not to consider the
prosecutor’s statement would have been ineffective. (Clark,
supra, 63 Cal.4th at p. 577.)
Second, defendant forfeited his claim that the prosecutor
improperly vouched for the credibility of Daymen and Geitheim.
Defendant never objected to any portion of the prosecutor’s

16
argument addressing the officers’ credibility, nor does he argue
an objection would have been futile or an admonition would not
have cured any potential harm. (Clark, supra, 63 Cal.4th at p.
577.)
Defendant argues that “[t]o the extent defense counsel
failed to object or failed to state the proper grounds for an
objection to the instances of prosecutorial misconduct, defense
counsel’s failure to do so constituted ineffective assistance of
counsel.” Defendant, however, only generally contends that
counsel’s failure to object to the prosecutor’s argument
constitutes ineffective assistance. Defendant does not identify
any specific omission by counsel, let alone attempt to explain why
any particular omission was deficient or prejudicial.
Consequently, defendant has failed to substantiate any claim
that his counsel’s performance was ineffective. (See Ledesma,
supra, 39 Cal.4th at pp. 745–746 [to establish a claim of
ineffective assistance of counsel, the defendant must show (1)
why counsel’s performance fell below an objective standard of
reasonableness; and (2) but for the deficient performance,
defendant would have obtained a more favorable result at trial].)
4. Arguing Facts Not in Evidence and Misleading the
Jury
Defendant did, however, preserve his claims that the
prosecutor argued facts outside the record and made misleading
statements to the jury. Specifically, defendant challenges the
prosecutor’s statements that he provided defense counsel with
Reyes’s body camera footage and that she could have presented
that footage to the jury. Although defendant didn’t object each
time the prosecutor made these statements, he did object to the
prosecutor’s first and last statements on the topic, which the

17
court overruled. Defendant, therefore, has preserved these
arguments for appeal. (See People v. Lima (2020) 49 Cal.App.5th
523, 533 [“ ‘ “The lack of a timely objection and request for
admonition will be excused only if either would have been futile
or if an admonition would not have cured the harm.” ’ ”].)
As noted above, a prosecutor enjoys wide latitude in his
closing argument, and his argument may be “ ‘ “ ‘ “vigorous as
long as it amounts to fair comment on the evidence, which can
include reasonable inferences, or deductions to be drawn
therefrom.” ’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 349.) To
this end, the prosecutor may “argue all reasonable inferences
from the record, and has a broad range within which to argue the
facts and the law.” (People v. Daggett (1990) 225 Cal.App.3d 751,
757 (Daggett).) It is improper, however, for the prosecutor to
argue facts not in evidence or to mislead the jury. (People v.
Mendoza (2016) 62 Cal.4th 856, 906 (Mendoza) [improper to
argue facts not in evidence]; Daggett, at p. 758 [improper to
mislead the jury].)
With respect to the prosecutor’s statements that he
provided defense counsel the only footage from Reyes’s body
camera that the People had obtained, that argument was
improper because it referenced matters that were not presented
to the jury. (See Mendoza, supra, 62 Cal.4th at p. 906.) During
trial, the prosecutor told the court that he had provided defense
counsel a copy of the only footage from Reyes’s body camera that
the People had obtained. He made those representations,
however, outside the jury’s presence during an evidentiary
hearing. The jury was never informed during the evidence phase
of trial that footage from Reyes’s body camera had been turned
over to the defense.

18
 It also was improper for the prosecutor to argue that
defense counsel could have presented footage from Reyes’s body
camera. As noted above, the court precluded the parties from
presenting that footage to the jury. The prosecutor, therefore,
misled the jury by arguing that defense counsel could have
played footage from Reyes’s body camera if it would have helped
defendant’s case. (See Daggett, supra, 225 Cal.App.3d at p. 758.)
Nevertheless, any error during the prosecutor’s argument
was harmless because it is not reasonably likely that the jury
applied the improper statements in an objectionable manner.
(People v. Daveggio (2018) 4 Cal.5th 790, 854 [“ ‘[W]hen [a] claim
focuses upon comments made by the prosecutor before the jury,
the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an
objectionable fashion.’ ”].) First, the prosecutor’s statements that
he had provided defense counsel with all the body camera footage
addressed only what evidence the parties possessed; they did not
ask the jury to draw any impermissible inferences from the
evidence concerning defendant’s guilt or to misconstrue any of
the burdens of proof. Second, the topic of Reyes’s missing body
camera footage was relevant only to what occurred during the
search of defendant’s car. But, as we explained above, defendant
never challenged any aspect of the search. Rather, he stipulated
the search was legal and conceded that he possessed all the items
found inside his car, including the nearly 21.5 grams of
methamphetamine. Thus, it is not reasonably likely that the
prosecutor’s statements concerning the missing body camera
footage affected the jury’s finding concerning defendant’s intent
in possessing the methamphetamine. Finally, the court
instructed the jury that nothing the attorneys said during trial

19
was evidence, including their remarks during closing argument.
(See People v. Yeoman (2003) 31 Cal.4th 93, 139 [jurors are
presumed to understand and follow the court’s instructions].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

20