Opinion
B162225.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. SERGIO RENTERIO GONZALES, Defendant and Appellant.
Maria Cavalluzzi, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sergio Gonzales appeals from a judgment after a jury trial in which he was convicted of unlawful driving or taking of a vehicle, driving under the influence, and driving with a .08 percent or higher blood alcohol content. Defendant contends that trial counsel was ineffective by failing to object to prosecution arguments regarding his post-arrest silence and election not to testify. We affirm.
PROCEDURAL BACKGROUND
On May 7, 2002, defendant was charged by information with: (1) felony grand theft auto (Pen. Code, § 487, subd. (d)); (2) felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)); (3) felony receiving stolen property (Pen. Code, § 496, subd. (a)); (4) misdemeanor driving under the influence (Veh. Code, § 23152, subd. (a)); and (5) misdemeanor driving with a .08 percent or higher blood alcohol content. It was further alleged defendant had suffered a prior serious felony conviction within the meaning of Penal Code section 1170.12 and two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). The jury found defendant guilty of unlawful taking of a vehicle and driving under the influence. Defendant admitted the prior conviction allegations. Defendant was sentenced to prison for eight years as follows: for unlawful taking of a vehicle, the upper term of three years, doubled, plus two years for the prior prison terms. Defendant filed a timely notice of appeal.
FACTS
In the early morning hours of January 7, 2002, defendant attempted to enter a Canoga Park bar while intoxicated. A security guard at the bar flagged down Los Angeles Police Department Officers Salvador Sandoval and Corina Kozub-Casas. Officer Sandoval informed defendant that the security guard did not wish him to enter the bar because defendant was too intoxicated and inappropriately dressed. Defendant agreed that he would walk home after acknowledging that he was too intoxicated to drive. Defendant told the police officers: "No, Im not driving. I just live around the corner."
Paul Perez was loading band equipment into his wifes green 1993 Crown Victoria after playing at the bar that night. Perez left the car running. Instead of walking home, defendant walked to the bars parking lot and drove away in the Crown Victoria. The officers heard squealing tires. Moments later, Perez informed the officers that his car had just been stolen.
The officers pursued defendant and apprehended him. Defendant gave the police officers a false name. The officers took defendant to the Devonshire police station, where they conducted field sobriety tests. Defendant failed all of the field sobriety tests. The officers advised defendant of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Defendant invoked his right to remain silent. The officers then conducted a breath test. The breath test showed a blood alcohol content of 0.16 percent. Defendant then requested a blood test. Since the blood test could not be administered at the Devonshire station, the officers drove defendant to the Van Nuys jail. During the transportation, defendant volunteered: "I had no business taking that fuckers car. My car is probably worth twice as much as his." Defendants blood was drawn at the Van Nuys jail. The blood test showed a blood alcohol content of 0.19 percent.
Defendants father testified that defendant had parked his mothers car, a green 1993 Buick LeSabre, near the bar. Defendants brother testified his mothers car resembled the Crown Victoria. Defendants father also testified that a day or two after the incident, defendant explained that "he had gotten confused."
DISCUSSION
Ineffective Assistance of Counsel
A criminal defendant has a right to counsel that is guaranteed under the Sixth and Fourteenth Amendments of the United States Constitution, and article I, section 15 of the California Constitution. "The ultimate purpose of this right is to protect the defendants fundamental right to a trial that is both fair in its conduct and reliable in its result." (People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal. Rptr. 404, 729 P.2d 839.) The Sixth Amendment entitles a defendant to "effective assistance of counsel." (In re Fields (1990) 51 Cal.3d 1063, 1069, 275 Cal. Rptr. 384, 800 P.2d 862.) This has been interpreted to mean that a defendant is entitled to the "`"`reasonably competent assistance of an attorney acting as his diligent conscientious advocate."" (Ibid.) A finding that a defendant was deprived of the right to effective assistance of counsel requires that counsels performance be deficient and the defendant be prejudiced. (Id. at p. 1068.)
Doyle Error
Doyle v. Ohio (1976) 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240.
Defendant contends he was denied effective assistance of counsel when defense counsel failed to properly object to the prosecutors closing argument.
During closing argument, the prosecutor told the jury: "But when he is stopped, ladies and gentlemen, he doesnt say, I didnt realize this was somebody elses car. My mother has the same car. I thought it was my moms car. Do you have any of this stuff he said, ladies and gentlemen? No. What we have is the defendant giving a false name, telling the officers he is somebody else. [P] Do we have the statement when hes in the car to the officers, you know, hey, I was mistaken. You know, of course that happens. It happens to all of us. Its happened to me, just as the defense attorney. We walk up to somebody elses car, oops, Im at the wrong car. [P] His mother has a similar-looking car, apparently, to the car that the defendant decided to take that night. But is that what the defendant was thinking that night? No. This would be January. You are hearing this story in August. Not that you even heard a story to that effect other than the father just coming in here and saying, yeah, I went to pick up this car at that location the next day. You have had no testimony that the defendant thought it was his mothers car. None whatsoever."
Defense counsel interposed an objection on the ground that the argument misstated the evidence, which the trial court overruled. The prosecutor then continued: "But the defense is asking you to infer that from the evidence, from the fact that he testified that the car was there the next day. But on the night in question was he saying that, ladies and gentlemen? Were any statements made to that effect?"
Defendant did not testify at trial.
The prosecution violates a defendants right to due process if it uses the post-arrest silence of a subject who was given Miranda warnings to impeach an exculpatory explanation subsequently offered at trial. (Doyle v. Ohio, supra, 426 U.S. at p. 619.) However, Doyle does not bar argument concerning post-arrest statements. (Anderson v. Charles (1980) 447 U.S. 404, 408, 65 L. Ed. 2d 222, 100 S. Ct. 2180.)
In the instant case, the prosecutor commented not on defendants post-arrest silence, but on his post-arrest statement. During the trip to the Van Nuys jail, defendant volunteered: "I had no business taking that fuckers car. My car is probably worth twice as much as his." In context, the prosecutor was not asking the jury to draw an inference of guilt from defendants post-arrest silence. He was asking the jury to draw an inference of guilt from the statement actually made. Defendant did not remain silent. He admitted intentionally taking the victims car. Since the prosecutor committed no Doyle error, defense counsel was not ineffective for failing to object.
Griffin Error
Griffin v. California (1965) 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.
Defendant further contends that defense counsel was ineffective when she failed to object to the prosecutors comment during closing argument: "Not that you even heard a story to that effect other than the father just coming in here and saying, yeah, I went to pick up this car at that location the next day. You have had no testimony that the defendant thought it was his mothers car. None whatsoever."
"`Under the rule in Griffin v. California, supra, 380 U.S. 609, error is committed whenever the prosecutor or the court comments[, either directly or indirectly,] upon defendants failure to testify [in his defense]. . . . [Citation.]" (People v. Medina (1974) 41 Cal. App. 3d 438, 458, 116 Cal. Rptr. 133.) Furthermore, "a prosecutor errs by referring to evidence as `uncontradicted when the defendant, who elects not to testify, is the only person who could have refuted it." (People v. Johnson (1992) 3 Cal.4th 1183, 1229, 842 P.2d 1.) Thus, Griffin error was committed in People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1245, when the prosecutor remarked, "`Nobody has even testified for the defense." This was understood as "a comment on defendants failure to testify [citation] because, in fact, the defense had presented various witnesses, including defendants mother, defendants sister, a [Child Protective Services] worker, a police detective and a family court mediator. The jury would reasonably construe the remark as an indirect comment on defendants failure to testify." (Ibid.) The dispositive issue, therefore, is whether the evidence showed the possibility of witnesses other than defendant who could have contradicted the prosecutors case.
We need not decide whether the prosecutors comment was an indirect reference to defendants failure to testify because any Griffin error was unquestionably harmless. "The applicable test for determining whether an error which violates federal constitutional principles is reversible error is set forth in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, wherein the court held that `before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (People v. Vargas (1973) 9 Cal.3d 470, 478, 108 Cal. Rptr. 15, 509 P.2d 959.) "This can be achieved when the evidence of guilt is overwhelming and the constitutional error is minor." (People v. Guzman (2000) 80 Cal.App.4th 1282, 1290.) An appellate court looks to the "frequency, intensity and purpose" of the prosecutors comments to determine if they were harmless beyond a reasonable doubt. (Ibid.) Reversible Griffin error has been found where the prosecutor alluded to a defendants failure to testify four times and also used a demonstrative chart to get this point across. (Ibid.) "The combined effect of these techniques was to cast aspersion on [the defendants] failure to testify." (Ibid.) Additionally, where "the decision [as to the defendants guilt] was a close one," an appellate court has found reversible Griffin error. (People v. Vargas, supra, 9 Cal.3d at p. 479.)
We note, however, that the prosecutors comment most likely referred to defendants fathers testimony that defendant had explained to him that defendant had "gotten confused." Apparently, the prosecutor was attempting to draw a distinction between "being confused" and "being mistaken as to whose car he drove."
On the other hand, brief, indirect, and limited comments on a defendants failure to testify are likely harmless. Where the case against a defendant was overwhelming and the comment was brief, the Griffin error is harmless. (People v. Vargas, supra, 9 Cal.3d at pp. 478-481.) Moreover, most indirect Griffin error is harmless. (Id. at p. 478.) "`A forbidden comment . . . is less likely to affect the "substantial rights" of a defendant . . . if that comment merely notes the defendants silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable. . . . [Citation.]" (Id. at pp. 478-479.) Griffin error is harmless beyond a reasonable doubt where the comments were "`"indirect, brief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom . . . ." [Citation.]" (People v. Bruce G., supra, 97 Cal.App.4th at p. 1245.) A brief, single sentence without amplification, coupled with a jury instruction not to infer guilt from a persons invocation of the privilege against self-incrimination is harmless. (Ibid.)
The comment in the instant case was harmless beyond a reasonable doubt. First, the prosecutor made only one indirect mention of defendants failure to testify. The comment was brief and included no suggestion that guilt be drawn from the failure of the defendant to testify. Second, the prosecutor presented overwhelming evidence against defendant. Police testified that they apprehended defendant while he was driving the victims vehicle, and defendant admitted that he intentionally took the victims vehicle. Third, defendant was convicted of only his admitted crime, namely that he intentionally took the victims car. Any doubt as to defendants intent in taking the victims vehicle was resolved in his favor by the acquittal of grand theft auto. Finally, jurors were instructed that a defendant in a criminal trial has a constitutional right not to be compelled to testify and they must not draw any inference from the fact that a defendant does not testify. Since any Griffin error was not prejudicial, defense counsels failure to object was similarly not prejudicial.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., and ARMSTRONG, J.