Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA040369, Jared D. Moses, Judge.
Thien Huong Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Yun K. Lee, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
INTRODUCTION
An information charged appellant (“Crayon”) with murder (Pen. Code, § 187, subd. (a)) and alleged that appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), a knife, in its commission. Appellant pled not guilty and denied the allegations.
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, appellant was found not guilty of murder, but guilty of the lesser offense of voluntary manslaughter (§ 192, subd. (a)). The jury found true that appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)).
The trial court sentenced appellant to 12 years in state prison, consisting of the upper term of 11 years plus one year for the personal weapon use enhancement. The court imposed a $2,400 restitution fine (§ 1202.4, subd. (b)), a suspended $2,400 parole revocation fine (§ 1202.45), a $20 court security fee (§ 1465.8, subd. (a)(1)), as well as a $30 court construction fee (Gov. Code, § 70373). Appellant was awarded 631 actual days plus 95 conduct days for a total of 726 days of presentence credits. In a probation violation matter, the court imposed a consecutive one year (one-third the midterm of three years for assault (§ 245, subd. (a)) and awarded three additional days of credit.
Appellant filed a timely notice of appeal.
APPELLATE CONTENTIONS
Appellant raises two major contentions on appeal. The first contention pertains to a purported violation of his constitutional rights against self incrimination and to due process of law by the prosecution’s commission of prejudicial misconduct in violation of the principles set forth in Doyle v. Ohio (1976) 426 U.S. 610. “Doyle forbids impeachment of a defendant’s exculpatory trial testimony with cross-examination about his or her postarrest silence after receiving Miranda warnings.” (People v. Tate (2010) 49 Cal.4th 635, 691-692.) Appellant contends that any errors in connection therewith cannot be considered harmless.
Appellant’s second contention is that he was deprived of effective assistance of trial counsel when his counsel failed to specifically invoke Doyle as an objection when his counsel objected to questioning by the prosecution of a rebuttal witness and trial counsel’s failure to object to the prosecutor’s use of appellant’s post-arrest silence during summation. To the extent that the appellate court might find a waiver of Doyle error, Crayon casts a wide safety net and contends he was thus deprived of the effective assistance of trial counsel. We examine each contention and find no reversible error as hereafter explained.
FACTUAL AND PROCEDURAL SYNOPSIS
The factual and procedural synopsis is taken from the summation set forth in the respondent’s brief on appeal. Minor discrepancies demonstrated in the record on appeal do not appear to be relevant in deciding the issues and contentions raised by the parties on appeal.
Prosecution evidence.
On November 7, 2007, Darryl Crayon (“Darryl”) and his nephew, appellant herein, lived in a second floor apartment on East Avenue J-4 in the city of Lancaster. Appellant’s wife, Malizabeth Wright, and their daughter had moved out about a month earlier. During his testimony, appellant testified that his daughter’s name was Alexis and that she was three years old on November 7, 2007. On November 7, however, Wright spent the day with appellant, with both of them leaving at one point to do some errands. At around 4:00 p.m., appellant came to Darryl’s room and told him that “some guy’s about to catch a fade.” Darryl interpreted this to mean that there was going to be a confrontation or an altercation. Appellant was upset and agitated, but was not yelling. Darryl asked appellant what he was talking about. Appellant walked out of Darryl’s room without responding.
Darryl followed appellant out of his room and into the kitchen. Now appearing even more upset, appellant grabbed a knife from the kitchen. Sensing that appellant was going to confront someone outside, Darryl tried to stop him, telling him not to do whatever he was thinking of doing. Appellant responded, “Fuck that, ” and walked outside, sticking the knife in his pants. Darryl, Wright, and Alexis (who were also in the apartment) followed him outside onto the balcony.
Karl Scott was downstairs in the parking lot. Scott asked appellant to come down so that they could talk. Appellant and Scott engaged in verbal back and forth that became angrier as the exchange progressed. Scott did not have a weapon. If he did, Darryl would have seen it. After about five minutes of talking back and forth, appellant sprinted down the stairs and pulled out the knife. Scott said, “Oh, you got a knife.” Appellant stabbed at Scott. Darryl and Wright began running down the stairs, telling Scott to run. Scott backpedaled as fast as he could, but appellant caught up to him and stabbed him again. Scott immediately collapsed. Appellant knelt over Scott and punched him twice in the head with his fist. Appellant then ran away. Scott never got up.
When Darryl and Wright came down the stairs, Alexis remained on the balcony. After the incident, Darryl returned to the balcony and asked Alexis to come in the apartment. Shortly thereafter, Wright left with Alexis. Five or six other people from the apartment complex witnessed the incident.
Johntae White lived two doors down from appellant. On November 7, he and his girlfriend heard yelling outside his apartment. Appellant, Wright, and Darryl were on the balcony; Scott was down below in the parking lot. All three were speaking to each other in a confrontational tone. Wright said, “Never Again.” Scott told appellant, “That’s not your baby anymore.” Appellant twice told Scott to leave. White got the impression that Scott wanted to fight appellant. Appellant asked Scott, “Why do we need fight for?” Scott called appellant a “punk bitch.” After listening to the argument for about three minutes, White decided that he had better put on some clothes and come outside.
About a minute later, after getting dressed, White came out to the balcony. Appellant, Wright, Darryl, and Scott were now in the parking lot. Wright was on one side of appellant; Darryl was on the other. Appellant and Scott were arguing. Scott asked appellant, “That’s how you gonna do me? You gonna stab me now, you gonna stab me now?” Appellant rushed at Scott. Scott ran backwards out of White’s view. White ran down the stairs. By the time White rounded the corner of the building, Scott was lying on his back and appellant was “socking” Scott in the ribs. Wright and Darryl pulled him off. Appellant walked towards White, wiping something off on his shirt and throwing it away. Appellant told White, “I gotta go.”
White gave appellant a ride away from the apartment complex. After about five minutes, appellant asked White to take him to Eastside Park. Appellant complained that his hand hurt; he thought it might be broken. He told White that he did not know how that had just happened. Appellant received a call on his cell phone. White was unable to pick up on the details of the conversation, but he knew that appellant was talking about the incident in the parking lot. Appellant also made a call from a different cell phone that was in his possession. When White dropped appellant off, appellant wrote his name and number on a card and gave it to White. White later called appellant and told him that Scott was not going to live. After a long pause, appellant said, “All right, homey, ” and hung up the phone.
Los Angeles County Deputy Sheriff Daniel Inez responded to the scene. Scott was lying on the ground; other people were standing around him. A woman was rendering first aid to him. Scott was unconscious, but breathing. He was bleeding from a wound to his chest. The blade of a knife was lying about six feet from him. DNA recovered from the blade matched Scott’s DNA. The tip of the blade and the knife’s handle were missing. The blade was sharp on one end and flat on the other. A knife handle was found in the nearby grass.
Scott died of a stab wound to the left side of his chest The wound went through Scott’s skin, rib, left lung, and heart. It was inflicted by a single-edged knife. The blade lying next to his body was consistent with the type of blade that inflicted the wound. Scott bled out as a result of the wound. Scott also had a laceration on his nose, a cut to his lower lip, a bruise to the back of his left hand, and scrapes to his right elbow and left knee. The injuries to his nose and lip were consistent with someone striking him in the face. The injuries to his hand and knee were consistent with him falling and striking those areas on concrete. These wounds were suffered around the same time as the stab wound.
Detective Frank Salerno searched appellant’s apartment on the evening of November 7. In the kitchen, there was a wooden knife block from which two knives appeared to be missing. The knife handle recovered outside in the grass matched the handles of the knives in appellant’s apartment. Moreover, the knives in the apartment, and the knife blade recovered near the scene of the stabbing, were all engraved with the words “Critics Choice.”
In the early morning hours of November 8, 2007, Cameron Thompson was searching through trash cans in Eastside Park looking for recyclables. He found a cell phone in one of the trash cans. For the next three weeks, Thompson used the phone. During his investigation, Detective Salerno discovered that Scott’s cell phone was still being used after he was killed. On November 26, 2007, Detective Salerno contacted Thompson. Thompson explained that he had found the phone in the early morning hours of November 8 in Eastside Park. Thompson gave the phone to Detective Salerno. Detective Salerno discovered that, on November 7, two calls were made from Scott’s phone. One call was to a residence in Palmdale; the other was to Wright.
Appellant surrendered himself to police on November 8, 2007. His arm was in a cast and he had a small cut on his right thumb.
Defense evidence.
In November 2007, Brenda Nelson was renting a room to Scott in Nelson’s transitional house. On November 6, Nelson overheard a conversation between Scott and appellant, whom she had known for eight years. As Scott was talking on a “chirp” phone, she was able to hear both sides of the conversation. Scott told appellant that Wright was “his girl now”; she was no longer appellant’s girl. Nelson had caught Scott and Wright naked together several times in the weeks preceding the killing. Appellant told Scott that he and Wright were trying to get back together. Scott cursed and threatened appellant, telling appellant that he was going to “whup [his] ass.” Appellant, on the other hand, tried to reason with Scott. Appellant told Scott that it was “fucked up” that Scott was “messing around” with Wright when he and appellant were supposed to be friends. Scott said something about going over to appellant’s house. On November 7, at around 4:00 p.m., Nelson gave Scott $71 to pay the cable bill. She also gave him money for cigarettes and gas. She warned Scott to not go “over there.”
Detective Salerno interviewed White on December 12, 2007. During that interview, White told Detective Salerno that Scott walked over to his car door, turned around, and walked back. As he was walking back, he said “Fuck that son of a bitch, get down here.” White also said that Scott had started walking toward appellant’s apartment. When Scott began approaching appellant, appellant told him, “Don’t come over here, don’t come up here.”
Appellant took the stand and testified that he met Scott when he was managing a sober living house. On November 6, 2007, Scott told appellant that he was having an affair with Wright. Appellant asked Scott to stay away from Wright because he and Wright were trying to get back together. Scott told appellant that Wright was no longer his. Appellant explained that they were trying to work out their differences because they had a child together. Scott told appellant that he was “nothing” and a “woman beater.”
On November 7, appellant had breakfast with Wright. They picked up Alexis from school at around 2:15 p.m. They then went to McDonald’s, and after that, grocery shopping. After they had returned to the apartment, Scott pulled up in his car. Appellant grabbed a knife and tucked it away for protection. He thought his life was in danger. Scott walked toward the apartment building and asked Wright if she had told appellant about the two of them. Scott told appellant that he was “no good” for Wright, that she was his woman, and that appellant’s child was his child. He called appellant a “woman beater” and a “punk.” Appellant told Scott to go away; this was his family. Appellant feared that Scott had “something” on him.
Scott told appellant to come downstairs so that he could “beat his ass.” Appellant told Scott to get in his car and leave. Scott went to his car and got in, but then said, “Fuck it, ” and walked back towards appellant. At this time, appellant and Wright were on the balcony, and Alexis was near the bottom of the stairs. Scott called for Alexis. Appellant ran down the stairs and grabbed Alexis. As he did this, Scott punched him on the right side of his face, almost knocking him out. Appellant tucked the knife in his hand so that Scott would not be able to see it. Appellant was scared that Scott would hurt him or his family. He was also upset at the things Scott had said about his wife and daughter and “was very pissed about the whole situation.” Appellant was also a diabetic and dehydrated. His vision was blurry and he could not see where he was. Appellant hit Scott in his chest and then in his face. Scott started shaking and fell face first into the pavement. Scott then jumped up and fell backwards.
Appellant was scared because he did not know if Scott had brought anyone else with him. He picked up Scott’s cell phone thinking it was his own. Appellant asked White to take him away because he was scared and confused. He did not realize that he had stabbed Scott. After talking to his brother, appellant surrendered himself to police the following day. He spoke to police, but did not remember what he said. Before he was taken to jail, he was transported to a hospital, where he was treated for a broken hand and given insulin for his diabetes.
Rebuttal evidence.
Detective Salerno spoke to appellant on November 8, 2007. Detective Salerno did not observe any injuries to appellant’s face. Detective Salerno inspected appellant’s body, but the only injuries were to his hand. After being advised of his Miranda rights, appellant indicated that he understood them. Appellant did not tell Detective Salerno anything about the phone call, arming himself with a knife, Scott’s threats to him, his daughter being downstairs, or Scott’s punch to his face. Appellant did not say anything about the incident that occurred the day before. Appellant told Detective Salerno that he was going to let God judge him. When Detective Salerno asked appellant if he knew a man named Karl, appellant said that he knew two men named Karl. Detective Salerno showed appellant a picture of Scott. Appellant said that he knew Scott from the neighborhood where he grew up. Appellant told Detective Salerno that he was confused and not feeling well.
Miranda v. Arizona (1966) 384 U.S. 436.
Detective Salerno interviewed Darryl on the day of the night of the incident. Darryl’s statement to him was consistent with Darryl’s trial testimony.
DISCUSSION
Appellant’s contention pertaining to purported Doyle error.
Appellant contends that during the trial his rights against self incrimination under the fifth amendment and his right to due process of law under the fourteenth amendment were violated and urges this court to reverse his conviction. Appellant testified in his own behalf. Following his testimony, the prosecution called a rebuttal witness, Detective Salerno. After the prosecution established that the appellant was advised of his Miranda rights the following exchange occurred:
“Q And after advising him of all of those Miranda rights, did you or your partner ask him whether he wanted to speak with you about what had happened?
“A I don’t believe he specifically asked him if he wanted to speak. I think my partner just started questioning or stating things to him.
“Q Were you there in the room the whole time that [appellant] was being interviewed on the day after the murder?
“A Yes.
“Q You just heard a story about picking up a knife and phone calls the day before and – and going out and daughters walking down the stairs and lying uncles and being punched in the face. Did [appellant] tell you any of those things when you interviewed him the day after the murder?
“[Trial Counsel:] Objection, your honor. Foundation, Miranda.
“The Court: Overruled.
“[Det. Salerno:] No, he didn’t tell us any of those things.
“[Prosecutor:] Did he tell you that Karl Scott approached him and threatened him and his family on November 7th?
“A No.
“Q Did he tell you that Charles [sic] Scott punched him on November 7th?
“A No.
“Q Did he tell you that he engaged in a fistfight with Karl Scott on November 7th of 2007?
“A No.
“Q Did he tell you that he armed himself with a knife after his wife reacted as though there was some sort of person driving into the apartment complex?
“A No.
“Q Did [appellant] tell you anything about what happened in the apartment complex on November 7th of 2007 when you interviewed him the next day?
“A No.”
After briefly asking about his interview with appellant’s uncle, Darryl Crayon, the prosecutor again inquired of Detective Salerno’s interview with appellant. Detective Salerno relayed that appellant was shown Karl Scott’s picture and admitted to knowing him. Prior to being shown the picture, appellant said that “he was going to let God judge him.” Appellant, however, never said anything about being in a confrontation with Scott.
“[Prosecutor:] Did he ever say to you that a gentleman named Karl Scott had threatened him at any point?
“[Det. Salerno:] No.
“Q Did he ever say that a gentleman named Karl Scott had come to his apartment and threatened his wife or daughter?
“A No.
“Q Did he ever tell you that he ever had any problems named Karl Scott?
“A No.”
On cross-examination, trial counsel elicited from Detective Salerno that appellant indicated a few times he was not feeling well because of his diabetes and asked to return to his cell. Detective Salerno, however, continued to talk to him “briefly.”
During summation, the prosecutor argued that appellant lied on the stand and that his version of what happened was absolute nonsense. To support his argument, he referenced, at three separate times, the fact appellant did not tell the police what he told the jury. The first time, during opening argument, he said: “And you heard when he talks to the police, he says: God’s gonna be my judge. But he doesn’t say: I was attacked, he was near my daughter, he punched me, we fought, it was an accident. He doesn’t say any of these things the day after the incident.” The prosecutor later stated: “... And in fact, until he took the stand, [appellant] hadn’t even told the police [appellant’s] version. Almost two years after the murder, [appellant] now wants to tell you the story. Why? Because he wants to get away with murder.” During his rebuttal argument, the prosecutor again commented on appellant’s failure to tell the police his version of events: “Now, I want to look at [appellant’s] story again because, according to [trial counsel], you should believe this was self-defense simply because [appellant] tells you that, ... you should ignore the fact that [appellant] never told the police that, and you should just believe him because now almost two years later he gets on the stand and says it.”
Appellant’s election to testify on his own behalf.
The most salient fact involved in our deliberations concerning the alleged Doyle error is appellant’s choice to take the stand and testify on his own behalf. This was a trial choice which could have led to considerable adverse consequences resulting in his conviction of second degree murder. Instead, appellant’s election to take the stand and testify led to a conviction of voluntary manslaughter. We hesitate to use the term “beneficial consequences” by reason of this turn of events, but use of the term in this instance appears rational and accurate.
During his testimony, appellant admitted that he thought he had a conversation with the police on November 8, 2007, but did not “exactly remember” what he told them. This eventually led to the rebuttal testimony of Detective Salerno indicating appellant was advised of his Miranda rights and appellant indicated that he understood those rights. The full exchange of testimony of Detective Salerno given in rebuttal and on cross-examination is set forth supra. It is conspicuous and an entirely reasonable inference from this record that the jury chose to believe the testimony of Detective Salerno on this subject and not that of appellant, which was within the province of the jury to do or not to do.
Respondent’s reliance on People v. Hurd.
We search the record in vain to find an indication that Doyle error occurred. To the contrary, the rebuttal testimony of Detective Salerno and on cross-examination merely indicated a conscious effort on the part of appellant to refrain from stating all the facts of the homicide following his Miranda advisement and ample opportunity to do so.
Respondent takes the position that People v. Hurd (1998) 62 Cal.App.4th is particularly instructive, in which the defendant was charged with killing his wife. After being advised of his Miranda rights, the defendant talked freely and voluntarily about his relationship with his wife and how the shooting occurred. He refused, however, to demonstrate how the shooting occurred. On appeal, defendant claimed that his refusal to demonstrate how the shooting occurred invoked his Fifth Amendment right against self-incrimination, and that accordingly, it was a denial of due process under Doyle for the prosecution to use, as evidence against him, his refusal to do the requested demonstration. The Court of Appeal rejected his claim of Doyle error, stating that “[a] defendant has no right to remain silent selectively. Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights.” (Id. at p. 1093.) The court found the defendant “was not induced by the Miranda warning to remain silent. Having talked, what he said or omitted must be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to.” (Id. at p. 1094.) Ultimately, the court concluded: “We do not think Doyle was meant to preclude the prosecutor from commenting on highly relevant evidence bearing on [the defendant]’s credibility, including [the defendant]’s refusal to provide critical details, when he had voluntarily waived his right to remain silent. In sum, we conclude that Doyle error was not here committed as there was no evidence that [the defendant]’s refusal to demonstrate the shooting... was based upon an invocation of his Miranda rights. (Ibid.)
Respondent contends and we agree that this case bears a strong similarity to Hurd. As respondent asserts, appellant implicitly waived his right to remain silent when he responded to the detectives’ questions about whether he knew Scott. (See Berghuis v. Thompkins (2010) 560 U.S. ___ [130 S.Ct. 2250, 2262, 176 L.Ed.2d 1098] [“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”].) Respondent further asserts and we agree there is no indication on this record that appellant’s failure to mention the confrontation with Scott on the day he was killed was based on an invocation of his Miranda rights. Accordingly, having talked, what appellant “said or omitted must be judged on its merits or demerits.” (People v. Hurd, supra, 62 Cal.App.4th at p. 1094.) Respondent concludes and we further agree that because Doyle was not intended to preclude the prosecutor from commenting on highly relevant evidence bearing on appellant’s credibility, including his refusal to provide critical details, when he had voluntarily waived his right to remain silent, appellant’s claim of Doyle error fails.
Prior to oral argument in this matter, appellant filed with this court a supplemental letter brief bringing to this court’s attention the recent decision of the Ninth Circuit Court of Appeals which found the Hurd decision to be wrongly decided for faulty analysis of the Miranda/Doyle issue. The decision of the Ninth Circuit is to be found in Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080. The Ninth Circuit opinion concludes: “The Supreme Court has clearly established that, after receiving Miranda warnings, a suspect may invoke his right to silence at any time during questioning and that his silence cannot be used against him at trial, even for impeachment. See Doyle, 426 U.S. at 618-19, 96 S.Ct. 2240; Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. Miranda does not apply only to specific subjects or crimes. It applies to every question investigators pose. See Miranda, 384 U.S. at 445, 86 S.Ct. 1602(‘The mere fact that [a criminal defendant] may have answered some questions... does not deprive him of the right to refrain from answering any further inquiries.’).” (Hurd v. Terhune, supra, 619 F.3d at p. 1087.)
Thus, reasons the Ninth Circuit, “[c]ontrary to the conclusion of the California Court of Appeal, the right to silence is not an all or nothing proposition. A suspect may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial.” (Hurd v. Terhune, supra, 619 F.3d at p. 1087; fn. omitted.)
The People responded with a supplemental letter brief contending that the federal decision in Hurd v. Terhune did not require reversal of Crayon’s conviction because it is not binding on this court, it is distinguishable and it is poorly written. The People in this case contend that the “[k]ey to the Ninth Circuit’s Doyle analysis in Hurd v. Terhune was its finding that Hurd unambiguously invoked his right to silence when he refused the officers’ request to reenact the shooting....” The People in this case further point out that “The Ninth Circuit repeatedly emphasized ‘that a suspect’s silence in the face of questioning cannot be used as evidence against him at trial.’ ([Hurd v. Terhune, supra, 619 F.3d at p. 1088], emphasis added; see also id. at p. [1086] [‘Doyle “prohibits impeachment on the basis of a defendant's silence”’], emphasis added; id. at p. [1087] [‘a prior inconsistent statement is much different from silence and does not enjoy the same protections under the Fifth Amendment’], emphasis added; id. at p. [1088] [‘when a defendant remains silent or refuses to answer a question posed by police, that silence or refusal is inadmissible’], emphasis added.)”
In drawing a comparison between Crayon’s case and Hurd, the People state: “In this case, conversely, [the People argue] there is simply no evidence that appellant was silent or refused to answer any of the questions posed to him by the detectives. Detective Salerno testified that, in the November 8, 2007, interview, appellant did not tell the detectives that Scott had recently threatened him, that he armed himself after observing his wife’s reaction to Scott driving into the parking lot, that his daughter had walked down the stairs near Scott, that Scott punched him, that he engaged in a fistfight with Scott, or that he had ever had any problems with Scott.... The mere fact that appellant did not tell the detectives these things, however, does not mean that he was silent or that he refused to respond to the detectives’ questions. It is possible that appellant gave responses that were inconsistent with his trial testimony. Or he could have said ‘I don’t know, ’ ‘God will judge me’..., or given some other non-responsive answer to the detectives’ queries. [Fn.: Indeed, on this record, it is not even clear what questions were posed to appellant. (... [Detective Salerno did not know if he or his partner asked appellant about confrontation with Scott on November 7, 2007].)] Each of these statements would have been consistent with Detective Salerno’s testimony that appellant did not tell the detectives about the confrontation with Scott on November 7, 2007, but would not have implicated appellant’s right to remain silent under Miranda. (See Anderson v. Charles (1980) 447 U.S. 404, 408 [100 S.Ct. 2180, 65 L.Ed.2d 222] [Doyle does not apply to use of prior inconsistent statements to impeach defendant]; People v. Silva (1988) 45 Cal.3d 604, 629-630 [response of ‘I don’t know’ to question about whether defendant was driving victim’s truck was insufficient to invoke defendant’s Miranda rights and therefore admissible against him at trial]; see also Berghuis v. Thompkins (2010) 560 U.S. ___ [130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098] [suspect’s invocation of his right to remain silent under Miranda must be unambiguous].) The fact that the record in this case does not show that appellant was silent or refused to respond to the detectives’ questions distinguishes it from Hurd v. Terhune.” (Fn. omitted.)
We agree with respondent that the facts in this case are distinguishable from the facts in Hurd because the record in this case does not show that appellant was silent or refused to respond to the detective’s questions. As persuasive authority, we decline to follow the Ninth Circuit case in Hurd v. Terhune. No Doyle error occurred in this instance. We also find no Doyle error by the prosecution in summation. The prosecutor merely regurgitated what was factually established during the testimonial phase of the trial and used those facts to forcibly argue for a conviction of second degree murder, which proved to be unsuccessful as heretofore indicated.
Having found no Doyle error, we find it unnecessary to address appellant’s contentions in response to the prosecution’s claims of forfeiture and waiver, harmless error and ineffective assistance of trial counsel.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., JACKSON, J.