Opinion
C051136
12-1-2006
THE PEOPLE, Plaintiff and Respondent, v. DALE LEONARD EDWARDS, Defendant and Appellant.
A jury convicted defendant Dale Leonard Edwards of arson (Pen. Code, § 451, subd. (b); unspecified section references that follow are to the Penal Code) and grand theft (§ 487, subd. (a)). Sentenced to an aggregate prison term of five years eight months, defendant appeals, contending that (1) evidence and argument improperly centered on defendants invocation of his right to silence and right to an attorney, (2) the prosecutor committed misconduct by referring to defendants failure to testify, (3) the court erred in failing to instruct the jury on accomplice testimony, and (4) the court erred in instructing the jury pursuant to CALJIC No. 2.15, "Possession of Stolen Property." Finding no reversible error, we affirm the judgment.
FACTS AND PROCEEDINGS
Defendant had been living in his car when an old friend, John K. (John), offered to let him stay at his house for a nominal rent. Defendant moved into the house in August 2004. Only John and defendant had keys to the house.
John was an avid collector of stamps, knives, and sports memorabilia, such as baseball cards and autographed balls. Defendant stole some of these items from John and sold them to Kenneth C. (Kenneth), the owner of a memorabilia store. Defendant told John that he had received these items from a friend who was going to prison and owed him money.
John was spending a lot of time at his mothers house and did not notice anything missing until February 2005.
At approximately 6:00 p.m. on March 8, 2005, defendant left the house, telling John that he was going to go fishing. About an hour later, John left to spend the night at his mothers house, and he locked all of the doors and windows on his way out.
At 5:00 a.m. the next morning, a passerby noticed smoke coming from the house. As an off-duty officer approached the house, another vehicle also pulled up. The officer asked the driver if he knew if anyone was in the house, and the driver responded, "No. Johns not there. Hes away." The officer said he was going to check the house to make sure, but the driver said he had already done so. The officer later testified that he was 85 percent sure that defendant was the person to whom he spoke.
Fire department personnel arrived at the scene, broke into the locked house, and extinguished the fire. Investigators determined that the fire was set by igniting gasoline that had been poured over the floor, clothes, and furniture throughout the house.
Soon after 9:00 a.m. that same morning, defendant arrived at Kenneths house to sell him some cards and tools. Defendant was nervous and smelled of smoke. Defendant told Kenneth that his earlier explanation for these items was false and that he had actually been stealing the items from John. Defendant said he did so to get back at John because John had been sleeping with his girlfriend. Defendant added that "he burned the house down to cover up what he had done." Kenneths girlfriend overheard much of this conversation, and she noticed a strong smell of smoke when defendant left the house.
Kenneth did not report the matter because he was frightened.
Defendant returned to the house at approximately 5:00 p.m. on the afternoon of the fire, while investigators were still on the scene. He arrived in his truck, which was packed with his fishing gear, tools and clothes. The investigators noticed this because an arsonist will often remove his "cherishibles" before burning his residence.
When John was allowed back into the house, he began to go through his possessions. He noticed that a number of items, including baseball cards, stamps, balls, and knives, had been carefully removed from their hiding places and were now gone. These items were valued at thousands of dollars.
John canvassed area stores in a search for his missing property. At one point, he spoke to Kenneth at his store, but Kenneth did not volunteer any information. Kenneth subsequently had a change of heart, contacted John, and gave him the property he had obtained from defendant.
Kenneth met with the investigating fire captain, and the investigator set up a pretext telephone call between Kenneth and defendant. In this call, Kenneth asked defendant, "What the heck did you torch that place with?" Defendants reply was partially inaudible, but included the word "gas."
Defendant was charged with arson and grand theft. Defendant admitted stealing property from John, but denied any connection to the arson. The jury convicted defendant of both offenses, and this appeal followed.
DISCUSSION
I
Evidence of Defendants Invocation of Constitutional Rights
Defendant contends his conviction must be reversed because of "Doyle error" (Doyle v. Ohio (1976) 426 U.S. 610, 617-619 [49 L.Ed.2d 91, 97-98]) in that evidence and argument improperly centered on defendants invocation of his constitutional right to silence and right to an attorney. Defendants claim is meritless.
"It is established that a persons invocation of his or her right to remain silent cannot be used as evidence of guilt. Official advice pursuant to Miranda of a persons right to remain silent carries with it an implicit assurance that `silence will carry no penalty. [Citation.] Doyle held specifically that `it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial. [Citations.] Doyle stands for the more general principle that a persons silence in apparent reliance on Miranda advice cannot be used against him or her in a criminal trial. By extension, the prosecution also cannot use a persons refusal to answer questions or his or her invocation of the right to remain silent or the right to counsel." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1525.)
"[A] Doyle violation has two components, both of which must exist. The first element is that the prosecution makes use of a defendants postarrest silence for impeachment purposes. Use of a defendants postarrest silence can occur either by questioning or by reference in closing argument. The second essential element is that the trial court permits that use. [Citation.] Th[is] type of permission . . . will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate." (People v. Evans (1994) 25 Cal.App.4th 358, 368.)
With these principles in mind, we turn to the events that transpired at trial.
Fire Captain Garrett testified that she played the tape recording of the pretext call during her interrogation of defendant. In this recording, Kenneth asked defendant what he used to set the fire; defendants reply, which was not entirely audible, included the word "gas."
The following colloquy between the prosecutor and Captain Garrett occurred:
"[Prosecutor]: How did the defendant react to the pretext call?
"[Captain Garrett]: He closed his eyes and crossed his arms, leaned over against the wall and said, `I didnt hear shit. I want my lawyer.
"[Prosecutor]: Did he ever deny making the statement?
"[Captain Garrett]: No.
"[Prosecutor]: That he used gas?
"[Defense counsel]: Objection. Move to strike.
"[Court]: Overruled."
When defense counsel began cross-examination, he asked Captain Garrett about the Miranda advisements given to defendant and the timing of defendants request for an attorney. Counsel then approached the bench, where an unrecorded discussion took place. Questioning resumed on a different topic.
During his argument to the jury, the prosecutor commented on defendants behavior during the interrogation, stating, "Another case in point, phone interview with the defendant. Captain Garrett plays the tape. Plays that CD that you have up there for the defendant, how does the defendant react? Does he say, I didnt say that? Does he say I said the fire department believes it was gas? Does he say any denials at all? [¶] What does he say? I didnt hear shit. [¶] Its just as important as to [sic] what they dont say as to what they say. Remember that as you listen through that. You can listen to it as much as you want. You can make your own decision on gas. The word gas. [¶] But look at it from the standpoint from what doesnt he say. What is reasonable when someone says what the heck did you torch that place with? If youre an innocent person, if you had nothing to do with burning down your roommates house, how do you respond to that statement? And its the way he responded, his lack of denial reasonable?"
After the prosecutor concluded his argument, defense counsel told the court he was "somewhat concerned" about the prosecutors argument. The prosecutor protested that he had not brought up "any invocation." The court noted that in another case it had instructed the jury that a defendant "has a right not to discuss his case with law enforcement and no inferences can be drawn from that," and then asked, "You want me to do something like that?" Defense counsel replied, "Yes. That would be fine, Your Honor."
After a brief recess, the court told counsel that it planned to read the entire instruction relating to a defendants decision not to testify. Defense counsel replied, "Im just asking for a limiting instruction," and suggested that part of the instruction could be deleted. The court responded that the instruction was "very short," and counsel stated, "That would be fine, Your Honor."
Before defense counsel began his closing argument, the court instructed the jury that "[a] defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that the defendant does not testify. Further you must neither discuss the matter nor permit it to enter into your deliberations in any way. Likewise, the defendant has a right not to speak to law enforcement. You must neither discuss this nor permit it to enter your deliberations either."
On appeal, defendant asserts that Doyle error occurred through "trial-sanctioned use of [defendants] post-Miranda warnings silence and invocation[.]"
Defendant did not raise any such objection in the trial court. He made no objection on Doyle grounds during the prosecutors examination of Captain Garrett, nor did he raise this specific objection during the prosecutors argument. In fact, defendant twice agreed that the instruction proposed by the court would resolve any potential problem. Under these circumstances, defendant has forfeited any claim of error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 63; Evid. Code, § 353.)
Anticipating this conclusion, defendant asserts his attorneys failure to object constitutes ineffective assistance of counsel. We disagree. The underlying predicate for defendants claim is missing: there was no Doyle error.
There was no improper use of defendants right to silence. As the United States Supreme Court explained, "Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson v. Charles (1980) 447 U.S. 404, 408 [65 L.Ed.2d 222, 226].)
Here, the focus was on defendants statement ("I didnt hear shit"), not his silence. Defendants right to silence was not implicated by Captain Garretts testimony or the prosecutors argument.
The second prong of defendants Doyle claim is no more successful: there was no improper use of defendants invocation of his right to counsel. After Captain Garrett played the recording of the pretext call, defendant said, "I didnt hear shit. I want my lawyer." In argument to the jury, the prosecutor focused exclusively on the first part of defendants statement. Defendant asserts that these sentences cannot be parsed to avoid a finding of Doyle error, and he likens his situation to that in People v. Lopez, supra, 129 Cal.App.4th 1508. Lopez is inapposite.
In Lopez, investigating officers asked defendant why he had resisted arrest. Defendant responded, "Fuck you. I want to talk to my lawyer." (People v. Lopez, supra, 129 Cal.App.4th at p. 1519.) At trial, the prosecutor argued that the first sentence constituted an adoptive admission. (Id. at p. 1525.) On appeal, defendant argued that these two sentences were "inextricably intertwined" and that both constituted an invocation of his right to counsel. (Id. at p. 1526.) Consequently, he asserted, even this first sentence should not have been called to the jurys attention. (Ibid.)
The appellate court agreed, finding "this particular curse must be put in its context. It occurred after defendant had been given a Miranda admonition and immediately after the officer asked why defendant had resisted the officers. In this context, defendants entire response must be considered together as a refusal to answer this question as well as an invocation of his right to counsel. We see nothing ambiguous or equivocal about this statement. . . . [¶] In this case, the jury should not have been asked to consider defendants colorful invocation of his right to counsel as an adoptive admission." (People v. Lopez, supra, 129 Cal.App.4th at p. 1527.)
Defendants comments here do not have the same import. Defendants first sentence, "I didnt hear shit," is neither an invocation of his right to silence nor an invocation of his right to counsel. It is a comment on the quality of the audiotape, and reflects (in less than graceful language), defendants assessment of its probative value. This statement is unrelated to the following sentence, "I want my lawyer." Under these circumstances, the prosecutors focus on the first sentence did not implicate defendants invocation of his right to counsel in the second.
But even if we were to conclude otherwise, defendant cannot demonstrate prejudice and thus cannot establish a viable claim of ineffective assistance of counsel. (See People v. Scott (1997) 15 Cal.4th 1188, 1211.) The evidence against defendant was overwhelming. Johns house had not been ransacked and there was no evidence of a break-in. Firefighters found the windows and doors of the house locked and the deadbolt set. Only defendant and John had keys to the house. A police officer talked to someone he thought was defendant in front of the burning house and this person told him that "John" was away and not inside. A few hours later, when defendant appeared at Kenneths house, he smelled strongly of smoke and told Kenneth that he had set fire to the house to hide his theft of sports memorabilia. Kenneths girlfriend overheard part of this conversation and testified that she heard defendant admit to setting fire to the house. Defendant had removed his own property from the house before the fire and placed it in his truck, behavior often associated with arsonists who destroy their own homes. Finally, in the tape-recorded pretext call, defendant said he used gas to burn the house.
Given this evidence, there is absolutely no likelihood that a jury would have returned a different verdict even if the challenged evidence and argument had been excluded. Defendants claim of ineffective assistance of counsel therefore fails.
II
Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by commenting on defendants failure to testify. No misconduct occurred.
In his opening statement to the jury, defense counsel said: "There are numerous witnesses in this case. I have a lot subpoenaed, the government has a lot of witnesses subpoenaed. . . . Were going to get a whole lot of different stories. Some of its going to fit, some it is not going to fit. Its going to be contradictory. Its your job to determine whos telling the truth, who has motive to do what and is there a reasonable doubt.
"Its my belief that the evidence will show that [defendant] left the morning of the fire approximately 4:00 oclock to go fishing. He had been fishing the previous day. He left that day about 4:00 oclock, went fishing. Came back later on that day and saw that the fire had occurred."
At trial, however, no witnesses testified that defendant went fishing on the morning of the fire.
In his argument to the jury, the prosecutor stated: "Now, remember the evidence is only what you heard from the witness stand. The physical evidence that has been introduced in this trial.
"For instance, things you heard in opening statements are not evidence. . . . What you heard from myself and from the defense attorney are not evidence.
"So if theres any contradiction between what you heard in opening statement and what you heard in this courtroom, you have to believe what you heard in the courtroom, not what you heard in the opening statement.
"The reason I do that is, you know, during the opening statement that was given to you by [defense counsel], he made reference to several witnesses. And essentially what you qualify as an alibi defense. But none of that came out in trial. Those witnesses were not here."
After the court overruled an unspecified objection by defense counsel, the prosecutor continued: "Specifically what Im thinking of, I believe there was a statement in opening statement by [defense counsel] that you were going to hear evidence that 4:00 in the morning on the day of the . . . fire that the defendant left to go fishing. You have not heard that in evidence. That is absolutely not evidence. So you cannot consider that for any purpose, period.
"Its a tough situation because I dont want to draw attention to it, but, on the other hand, we have to make sure you consider the evidence. Not what you were told to expect to hear in trial. What you actually hear. And you have to differentiate between the two. You can only use what you heard from the witness stand. You can only use the physical evidence that you see. And you all promised me beforehand that you would follow the instructions. You would follow the law. You would apply the law as it was given to you by the judge and thats what the judge is going to tell you. . . . [¶] And you cant speculate on why things like that happen. All you know is what came in here. And thats not part of it."
In a subsequent discussion with the court, defense counsel objected that the prosecutor had improperly commented on defendants failure to testify. The trial court overruled the objection but, as already discussed, instructed the jury before defense counsel began his argument that a defendant has a right not to testify.
On appeal, defendant reiterates his claim of misconduct.
"In Griffin v. California (1965) 380 U.S. 609 . . . the United States Supreme Court held that the prosecution may not comment upon a defendants failure to testify in his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. [Citations.] Nonetheless,
. . . we have held that a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1339.)
The prosecutors comments here were proper. Counsel explained to the jury that arguments and statements by the attorneys do not constitute evidence and cannot substitute for witness testimony or other admissible evidence. Defense counsel had stated in his opening remarks to the jury that "the evidence will show that [defendant] left the morning of the fire approximately 4:00 oclock to go fishing." The prosecutor did nothing more than point out that no such evidence had been presented, and that the jury could not consider defense counsels statement as evidence.
Given this context, the prosecutors comments cannot fairly be read as drawing attention to defendants failure to testify. There was no misconduct.
III
Failure to Instruct on Accomplice Testimony
Defendant contends that the trial court erred in failing to instruct sua sponte the jury that Kenneth was an accomplice to theft of the victims property. Alternatively, defendant suggests that his attorneys failure to request such an instruction constituted the ineffective assistance of counsel.
Defendant asserts that an instruction that Kenneth was an accomplice to theft would have led the jury to discount Kenneths testimony when deliberating on the separate charge of arson. We question defendants logic, but reject his claim for more substantial reasons. No accomplice instruction was warranted because there was no evidence that Kenneth was in fact an accomplice to the theft.
"Section 1111 defines an accomplice as `one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. In order to be chargeable with the identical offense, the witness must be considered a principal under section 31. That statute defines principals to include `[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . . [Citations.]" (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114, italics added.)
An aider and abettor must have knowledge of the perpetrators criminal purpose, and intend to commit, encourage or facilitate the commission of the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91.)
"Accomplice status is a question of fact for the jury unless the evidence permits only a single inference. [Citations.] Defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence." (People v. Sully (1991) 53 Cal.3d 1195, 1227-1228.) If there is no evidence that a witness is an accomplice, a court need not instruct the jury on accomplice testimony. (People v. Horton, supra, 11 Cal.4th at p. 1114.)
While Kenneth might have been prosecuted for buying stolen property (§ 496, subd. (a)), he could not have been prosecuted for grand theft, the crime with which defendant was charged. There was no evidence that Kenneth knew of defendants criminal purpose before the thefts were committed, or that he intended to encourage or facilitate the commission of that offense.
Because he was not liable for prosecution for the identical offense charged against defendant, Kenneth was not a principal and therefore was not an accomplice. No instruction on accomplice testimony was warranted, thereby disposing of defendants claims of error.
IV
CALJIC No. 2.15
At the prosecutors request, the trial court instructed the jury in accordance with CALJIC No. 2.15, "Possession of Stolen Property." Part of the courts instruction stated: "If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crime of arson. [¶] Before guilt may be inferred, there must be corroborating evidence tending to prove defendants guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant [an inference of] guilt." The instruction then outlined possible corroborating factors.
After the jury began its deliberations, the trial court told the parties that it believed this instruction should not have been given because it erroneously linked possession of stolen property with arson rather than another theft-related offense. However, the court also opined that its mistake "probably will be harmless error."
On appeal, defendant contends the instruction was improper, necessitating reversal. We need not decide whether the instruction was improper. We previously outlined the overwhelming evidence of defendants guilt. Under these circumstances, there was no reasonable likelihood that the jury would have reached a different result had the court not given CALJIC No. 2.15. The error was therefore harmless. (See People v. Prieto (2003) 30 Cal.4th 226, 249; People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON, Acting P.J.
CANTIL-SAKAUYE, J.