Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge. Super. Ct. No. SF013296A
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Judy Kaida and Raymond L. Brosterhous II, for Plaintiff and Respondent.
OPINION
HILL, J.
Following a jury trial, defendant James Conriquez, Jr. was convicted of being a prison inmate in possession of a weapon, to wit, a dirk, dagger, or sharp instrument (Pen. Code, § 4502, subd. (a)). The court found true the allegations that defendant had suffered two qualifying prior convictions for purposes of the three strikes law. Defendant was sentenced to a total prison term of 25 years to life, which was ordered to run consecutively with the eight-year term he was already serving at the time of the current offense. On appeal, defendant contends: (1) statements he made to a correctional officer were improperly admitted in violation of his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) there was prejudicial prosecutorial misconduct during closing argument; and (3) the cumulative impact of these errors deprived him of a fair trial. We reject defendant’s contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
In the early morning hours of May 15, 2006, Jeffrey Quiram, a correctional officer at the Wasco State Prison in Kern County, was assigned to the receiving and releasing unit of the prison. His work entailed preparing inmates to be transported by bus to different institutions. Defendant was scheduled to be transferred to the California Men’s Colony in San Luis Obispo.
Officer Quiram described the procedure for processing inmates who come to the receiving and releasing unit. First they are placed in different cells. They are then strip-searched to ensure they do not possess contraband. Next, they are given paper jumpsuits, boxers, and t-shirts to wear and are placed in a different holding cell. They are then pulled out one at a time, photographed for identification, and sent through a metal detector. Finally, they stand in line and wait for a transportation unit to chain them up to go on the bus.
Officer Quiram first made contact with defendant around 3:00 a.m. Officer Quiram strip-searched defendant. He did not locate any contraband on defendant or observe anything near or around defendant’s rectum. Defendant was then issued a paper jumpsuit and was placed in a holding cell.
After Officer Quiram’s partner photographed defendant, defendant was sent through the metal detector. When defendant went through the metal detector, it sounded and LED lights illuminated. The LED lights indicated there was something metal around defendant’s “waist area.”
Officer Quiram instructed defendant to go back through the metal detector one more time. The metal detector sounded again and the LED lights illuminated, indicating the metal was in the same area. Officer Quiram escorted defendant back to a pre-searched holding cell. The cell was searched every night around 2:00 a.m. That night, Officer Quiram searched the cell himself and did not locate anything inside the cell. He also inspected it visually before putting defendant in the cell and did not observe anything.
As he was escorting defendant over to the holding cell, Officer Quiram asked defendant “if he had anything on him, and if he had something on him, to go ahead and give it up, before [the officer] could allow him to get on the bus.” In response, defendant said he had something in his rectum or “butt, or some slang.” After Officer Quiram placed him in the holding cell, he again asked defendant “if he had anything on him, that he needed to give it up, so that he could be sent out on the bus.” Defendant said “he had a knife, or blade in his rectum, and [Officer Quiram] said he needed to get it out.”
In response, defendant unzipped his jumpsuit, squatted down, and removed the object. Officer Quiram had defendant place the object on the ground in front of him, outside the bars. The object Officer Quiram retrieved was a piece of metal that looked like a blade and was wrapped in plastic. It appeared to have a handle on one end, which was fashioned out of tape and orange, plastic garbage-sack material. The other end of the object was “sharpened to a point.” To Officer Quiram, it looked like a “stabbing type weapon.”
DISCUSSION
I. Claimed Miranda Violation
Defendant contends his statements to Officer Quiram should not have been admitted at trial because they were obtained in violation of Miranda, supra, 384 U.S. 436. Recognizing this claim was waived by defense counsel’s failure to object, defendant also contends he received ineffective assistance of counsel. We reject both claims based on our conclusion that, on the record before us, defendant was not in custody when questioned by Officer Quiram. Any restriction of movement he suffered when questioned by Officer Quiram was based upon the fact that the crime was committed at the Wasco State Prison. Accordingly, Officer Quiram was not required to administer Miranda warnings and defense counsel was not ineffective for failing to object to the admission of defendant’s statements to the officer.
“To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.] Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, ‘“‘but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543, 569; see Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Pope (1979) 23 Cal.3d 412, 426.)
The United States Supreme Court held in Mathis v. United States (1968) 391 U.S. 1, 4-5 (Mathis) that a prison inmate incarcerated for an offense different from the one being investigated is entitled to Miranda warnings. As stated in People v. Fradiue (2000) 80 Cal.App.4th 15 (Fradiue), however, even though the Mathis holding clearly granted the protections of Miranda to prison inmates, several lower federal courts have delineated an exception to this general rule “where the interrogation is conducted under circumstances where no restraint is placed upon the inmate over and above that associated with his prisoner status.” (Fradiue, supra, 80 Cal.App.4th at p. 19, italics added.) Fradiue cited in particular Cervantes v. Walker (9th Cir. 1978) 589 F.2d 424 (Cervantes) for the propositions that the usual test of whether a reasonable person would have felt free to leave was not useful in the inmate context and that Miranda warnings were not required in all investigatory prison interrogations. (Fradiue, supra, 80 Cal.App.4th at pp. 19-20.)
Cervantes analogized the investigatory questioning of an inmate to the type of on-the-scene questioning that occurs when police attempt to determine whether a crime has been committed and which does not require Miranda warnings. (Cervantes, supra, 589 F.2d at p. 427, citing Miranda, supra, 384 U.S. at pp. 477-478.) Cervantes stated that any other view would result in the illogical position of affording greater protection to prisoners than to persons not incarcerated. (Cervantes, supra, 589 F.2d at p. 427.) In order to reconcile Mathis with the principles of Miranda, Cervantes named four factors to consider in determining whether some extra degree of restraint was placed upon an inmate to force him to respond to police questioning: (1) the language used to summon the inmate for questioning; (2) the physical surroundings of the interrogation; (3) the extent to which the inmate is confronted with evidence of his guilt; and (4) the additional pressure exerted to detain him. (Cervantes, supra, 589 F.2d at p. 428.)
In the instant case, defendant was not summoned for questioning but was stopped from advancing to the bus for a prison transfer after he twice set off the metal detector. The location of the brief questioning was somewhere between the metal detector and the holding cell to which defendant was escorted and then the questioning was repeated once defendant was inside the cell; an environment not out of the ordinary for an inmate such as defendant. The extent to which defendant was confronted with evidence of his guilt was not extensive. Officer Quiram merely asked defendant if he had anything on him and stated, matter-of-factly, that if defendant did have something, he would have to give it up before he could be allowed on the bus. Finally, there was no additional pressure exerted on defendant over and above his already existent confinement to prison. The evidence indicates that the manner in which defendant was escorted to a holding cell was in accordance with normal prison procedures.
The record thus shows that defendant was questioned in the context of an on-the-scene investigation, and there is no evidence his movements were curtailed to any degree over and above that associated with his status as an inmate of the Wasco State Prison. We therefore conclude that, under the facts of this case, defendant was not in custody when he spoke with Officer Quiram and the officer was not required to administer Miranda warnings before he questioned defendant. Accordingly, defendant’s related claim that defense counsel rendered ineffective assistance by failing to object must be rejected; counsel undoubtedly realized an objection would have been unavailing.
As defendant notes, in response to the People’s in limine motion to admit defendant’s statements and resolve any Miranda issues, defense counsel indicated he did not think there was a Miranda issue because defendant’s statement “would be an admission prior to any real investigation into it” and agreed with the court’s statement “[s]o it’s not a statement made during a custodial detention where there was an interrogation, so far as you can tell .…” In light of the above authorities, defense counsel’s assessment of the issue was not unreasonable and his failure to object on Miranda grounds did not demonstrate professional incompetence.
II. Claimed Prosecutorial Misconduct
Next, defendant contends the prosecutor committed prejudicial misconduct by misstating and thereby lowering the burden of proof and by improperly vouching for the prosecution witness during closing argument. Again acknowledging he waived his claims by failing to object below, defendant contends defense counsel rendered ineffective assistance. We disagree.
A. Misstating the Burden of Proof
During final argument, the prosecutor made the following statements regarding reasonable doubt (the comments defendant finds objectionable are italicized): “Reasonable doubt. [¶] I am sure [defense counsel] is gonna get up and he’s gonna talk about the burden of proof, beyond a reasonable doubt, and I understand that, that is my burden and I accept that, and I submit to you that I’ve proven it beyond a reasonable doubt, that the defendant possessed the weapon. [¶] The definition says that it’s not a mere possible doubt, it’s not, what if? [¶] It’s not hypothetical. [¶] It’s not maybe. [¶] It’s that state of the case which, after all of the evidence, that you have compared and considered, leaves you in a state of mind that you cannot say you don’t have an abiding conviction of the truth. [¶] What that means to me is, a week from now, you can look yourself in the mirror and say, yeah, I still think he did it. [¶] That’s reasonable. [¶] It’s a standard that is used every day in every criminal case across the nation. [¶] It’s not insurmountable, and not impossible, and it boils down to your common sense. [¶] Was he in prison? [¶] And did he have a weapon? [¶] And those are really the two elements, that’s what I’m required to prove.”
In rebuttal, the prosecutor argued: “They want you to believe that [Officer Quiram] lied about everything. [¶] Because that’s the bottom line, that is what it comes down to. [¶] He would have to have been lying about the metal detector. [¶] He had to have been lying about his statement, or at least very confused. [¶] He had to be lying about the search of the cell. [¶] … [¶] The only evidence that you heard from the witness stand is that two people had keys. [¶] Officer Quiram and his partner. [¶] And from the time he searched the cell at 2:00 a.m., until he put the defendant in it, nobody was in there. [¶] But the defense wants you to speculate. [¶] If you go on that issue, whether or not it’s possible to conceal a weapon, they want you to guess. [¶] Well, that’s hypothetical, that’s maybe, it’s not reasonable doubt. [¶] Look at that instruction. [¶] It’s not probable, it’s not maybe, it has to be above that. [¶] Now, ladies and gentlemen, reasonable is the burden. [¶] The important thing to remember is, it’s used every single day across the country. [¶] And you see the news channels, you see the newspapers, people are convicted every single day in courtrooms across America. [¶] Why? [¶] Because reasonable doubt is not insurmountable, it’s a higher level of proof, but it is proveable. [¶] If it wasn’t, no one would go to prison, we wouldn’t have a prison system. [¶] No one would be convicted. [¶] So, the bottom line, ladies and gentlemen is, do you believe Officer Quiram?”
Defendant contends that the prosecutor’s comments had the effect of lowering the prosecutor’s burden of proof by equating the reasonable doubt standard with “common sense” and the type of standard people use “every day” in making decisions. Defendant relies principally upon People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen).
In Nguyen, the prosecutor made the following statements to the jury during summation: “‘The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It’s a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes. [¶] So it’s a standard that you apply in your life. It’s a very high standard. And read that instruction, too. I won’t paraphrase it because it’s a very difficult instruction, but it’s not an unattainable standard. It’s the standard in every single criminal case.’” (Nguyen, supra, 40 Cal.App.4th at p. 35.)
The Nguyen court held that the prosecutor’s argument was improper and “strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry.” (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court further held that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutor’s statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)
The prosecutor’s statements in this case are very different from the remarks at issue in Nguyen. Here the prosecutor did not equate application of the reasonable doubt standard to decisions jurors make in daily life or compare the jury’s task to any specific decision. Rather, he stated accurately that the reasonable doubt standard was used every day in criminal cases and described it as a higher level of proof. We also disagree with defendant that the prosecutor’s reference to common sense improperly equated the reasonable doubt standard with everyday decisionmaking. When the prosecutor’s remark is read in context, it becomes clear the prosecutor was arguing that the jury could use its common sense to determine that the facts shown by the prosecution’s evidence satisfied the reasonable doubt standard, not that common sense could substitute for the reasonable doubt standard. This was fair argument. Finally, the prosecutor told the jury to look at the court’s instruction on reasonable doubt and the court instructed the jury on the proper standard. Nguyen therefore leads us to conclude no rational juror would have been misled by the prosecutor’s argument, and that any deficiency in defense counsel’s failure to object was not prejudicial. (Nguyen, supra, 40 Cal.App.4th at pp. 36-37.)
In addition, we reject, as without merit, defendant’s brief assertion that the prosecutor erroneously defined “reasonable doubt” when he stated: “It’s that state of the case which, after all of the evidence, that you have compared and considered, leaves you in a state of mind that you cannot say you don’t have an abiding conviction of the truth.” When viewed in context, it is clear the prosecutor was not defining the phrase “reasonable doubt” but was trying to describe what the jury’s state of mind would be if it found defendant guilty beyond a reasonable doubt. The prosecutor’s use of negatives may have rendered his statement confusing but it was not a misstatement of the law.
B. Vouching for the Witness
In closing argument, the prosecutor made the following comments regarding the circumstance that Officer Quiram was the sole prosecution witness and the prosecutor’s anticipation that the defense was going to challenge whether his testimony was enough to establish defendant’s possession of the weapon (challenged comments are again italicized): “And some of you may be thinking, well, with only one witness, how could I find ‘em guilty with just one witness? [¶] The law says that you can. [¶] … [¶] What they are going to argue about is, did he possess the weapon or not? [¶] So, that’s the decision you are going to have to make, when you go back into the jury room. [¶] Did he have the weapon or not? [¶] And the only evidence that you have heard, as I have indicated before, is that he did. [¶] … [¶] So, the only evidence that you have is Officer Quiram’s testimony. [¶] So, then, the question becomes, do you believe him? [¶] And it comes down to that. [¶] … [¶ ] So, I would submit to you, he has no reason to lie.[¶] I would also submit to you, he works for the state. [¶] It’s not an easy job to come by, lots of people would like those kinds of working hours, maybe not his, but the benefits, retirement, everything, you know, that we know as citizens that public employees get, why would he lie for him? [¶] One defendant. [¶] When he has contact with hundreds. [¶] No one case is worth his credibility. [¶ So, I submit to you, ladies and gentlemen, that he told the truth, told you what he could remember, told you the facts and the evidence, and you need to find the defendant guilty.”
As the prosecutor predicted, the defense in closing argument tried to raise doubts as to Officer Quiram’s credibility. Defense counsel suggested that it was not physically possible for defendant to have concealed the knife in his rectum. Defense counsel suggested that, contrary to the prosecutor’s argument, Officer Quiram’s job actually provided him an incentive to lie: to protect his job. Defense counsel suggested a more plausible theory was that the knife was in the holding cell the whole time and that Officer Quiram failed to discover it when he conducted his regular search of the cell at 2 a.m. To cover up his own failure to discover the knife, he placed the blame on defendant.
For example, defense counsel argued: “Now, there was some suggestion that Mr., or, Correctional Officer Quiram, he has no reason to lie, why would he lie? [¶] Well, at first blush, I say, yeah, you are right, until he said it, I hadn’t thought about it, but, he said it, so, I thought about it, let’s see, great job, great benefits, he probably would like to make sure he has those tomorrow. [¶] And if you are the guy responsible for the two a.m. sweep of the cells, and you log that sweep, and there is a knife found in one of those cells, someone has got to be blamed. [¶] … [¶] Someone has got to be blamed. [¶] It’s either Mr. Quiram, or someone else. [¶] … [¶ ] I don’t think it’s [a case] that goes with proof beyond a reasonable doubt. [¶] Too many open questions, protecting his job, it doesn’t make sense. [¶] I mean, things do actually have to make sense. [¶] A lot of us think, oh, he must have been guilty, that makes sense. [¶] When the reality is, does it make sense that a man could have that thing in his rectum …? [¶] … [¶] Could a weapon have been missed, even from his two o’clock sweep? [¶] Sure. [¶] He testified, contraband, weapons, all of that sort of thing are found in there, all the time, that was his testimony. [¶] If he missed it, he has to have a place to put it. [¶] And he put it squarely on [defendant.] [¶] Your job really is not an easy one, because, you have to figure out where the truth is, figure out all of these nuances. [¶] Figure out if somebody can actually put a Saran Wrapped knife that far up into their body cavity without being injured. [¶] … [¶] This is not a delicate mechanism, it looks like a piece of brass to me, certainly a piece of metal, heavy metal, short point, no protection. [¶] Doesn’t make sense. [¶] The thing that makes sense is that it was missed.”
Defendant now contends that the prosecutor improperly vouched for Officer Quiram’s credibility by suggesting, in defendant’s words, that the officer “would not put such a good job at risk by lying.” Accordingly, defendant argues defense counsel was ineffective for failing to object to the prosecutor’s argument.
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971.)
The prosecutor did not vouch for the truthfulness or accuracy of the officer’s testimony when he essentially argued that in order to accept the defense theory, the jury would have to believe that the officer would lie about his observations of defendant and thereby risk his fledging career as a correctional officer. (People v. Anderson (1990) 52 Cal.3d 453, 479 [no improper prosecutorial vouching because the prosecutor limited her remarks to facts of record, namely, the years of experience of the officers involved, and the prosecutor’s “vouching” was clearly based on inferences reasonably drawn therefrom, rather than on the prosecutor’s personal belief or knowledge].) Here, the prosecutor argument was loosely based on facts in evidence – the officer’s three-year employment with the Department of Corrections which began with a 16-week training academy. The prosecutor also appealed to the jurors’ common perceptions about civil service employment and did not imply he had any personal knowledge or belief about Officer’s Quiram that would support the officer’s veracity as a witness.
In any event, even if there was misconduct it was slight and not prejudicial. (See People v. Padilla (1995) 11 Cal.4th 891, 946 [prosecutor said in his closing argument that, had the officer lied, he would have risked his whole career of 17 years; court held that although the argument was probably improper, there was no reasonable probability the defendant was prejudiced]; U.S. v. Martinez (6th Cir. 1992) 981 F.2d 867, 871 [prosecutor asked the jury why a detective would risk his 18-year police career by lying on the stand; court held the prosecutor’s comment was simply an isolated misstatement which did not likely prejudice the defendant because any possible prejudice was ameliorated by the trial court’s instruction to the jury that the lawyers’ arguments are not evidence].)
As we have already determined that the prosecutor committed no error, or any error did not result in prejudice, there can be no ineffective assistance due to defense counsel’s failures to object. (People v. Cunningham (2001) 25 Cal.4th 926, 1038.)
III. Cumulative Error
Defendant contends that the cumulative impact of all of the claimed errors deprived him of a fair trial. We have either rejected defendant’s claims of error and/or found any errors to not be prejudicial on an individual basis. Viewing the errors as a whole, we find that the errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOMES, Acting P.J., DAWSON, J.