Opinion
H024631.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. JOE DANNY GRIJALVA, Defendant and Appellant.
A jury found appellant guilty of one count of attempted first degree robbery and one count of shooting at an inhabited dwelling. (Pen. Code, §§ 664/211-212.5; 246.) The jury found true allegations of personal use of a firearm. (Pen. Code, §§ 12022.53, subd. (b), 667, 1192.7.) The trial court sentenced appellant to imprisonment for 14 years and eight months. Appellant contends that during closing argument the prosecutor committed error under Griffin v. California (1965) 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, and that the imposition of his $ 300 attorneys fees must be stricken. We remand the matter to allow the trial court to conduct a hearing on appellants ability to pay attorneys fees or to strike that order.
EVIDENCE AT TRIAL
On April 20, 2001, at about 1:00 a.m., Maria Kharoufeh and her husband were in bed. Kharoufeh heard a tapping on the window by the bedroom. She got up and went into the living room and turned on the light. She looked out through the front window and saw two people outside. They were dressed in dark clothes and had their backs to her.
Through the front door, Kharoufeh asked, "Who is it?" A man said, "Its me." Kharoufeh asked, "Whos me?" The man repeated, "Its me." Kharoufeh thought the men were some of her husbands friends who often come by late at night. She "cracked the door open a little" and put her foot against the door to block it.
When she looked out the door, Kharoufeh immediately recognized appellant, whom she knew as Joe Macias. When she was younger, she used to play basketball with him on a daily basis. She also saw him occasionally on the streets of Alviso and in the store. She knew that he lived in a pink house one block away from hers.
At the door, Kharoufehs face was about 12 inches from appellants face. Appellant said, "This is a stick-up, bitch." Kharoufeh thought this must be a joke and said, "What?" Appellant repeated, "This is a stick-up." Kharoufeh saw appellant was armed with a rifle. She testified the rifle was "between my door, right in front of my face." Kharoufeh looked straight at appellant and focused on his face, which she could see clearly.
Kharoufeh tried to shut the door and yelled for her husband. After a struggle, she managed to close and lock the door. After shutting the door, Kharoufeh heard a gunshot close to her house. She and her husband heard the fence rattling, looked out the window and saw appellant and his companion running away. They ran through an empty lot and disappeared.
Illumination for Kharoufehs observations was provided by porch lights on the houses to the left and right of her house, a streetlight directly across the street, and a neighbors bright floodlight that shined towards her home. Although Kharoufeh was not wearing her glasses, she only needs them for seeing objects in the distance.
The next morning, Kharoufeh called the police and told them appellant was responsible. She found a bullet hole next to the front door on an exterior wall. A detective showed Kharoufeh a photo line up from which she selected two people who resembled the person who committed the crime. Later, she was shown a photo line up containing appellants picture, and she immediately pointed to appellants picture and said that was Joe Macias. She identified appellant in court as the assailant and said she had no doubt about her identification.
Dr. Kathy Pezdek testified for the defense that she was a psychologist who is an expert in the field of eyewitness identification. She described 10 factors that cast doubt on the accuracy of an eyewitness identification. These include lighting, exposure time, visual acuity, weapon focus, disguise, familiarity, memory for detail, time delay, lineup bias, and the experimenter expectancy effect. Considering these factors, Dr. Pezdek expressed "serious questions about an eyewitness identification made under these circumstances." She did concede the identification in this case could be "correct" or could be "wrong."
GRIFFIN ERROR
Appellant contends the prosecutor committed Griffin error because "during closing argument, the prosecutor implicitly referred to appellants decision not to testify." During his closing, defense counsel argued, "Prosecutor said there was unanswered questions and you shouldnt worry about those. Some of the things he mentioned theyre not presented to you. Thats right, but there are other unanswered questions that you better worry about. This is an important function that youre doing. Its an important function youre doing."
In his rebuttal argument, the prosecutor said, "Ladies and Gentlemen, I just have a few brief things to say and then Ill let us move on. [P] The defense has mentioned a lot of things that were not presented to you, and Ive got something that wasnt presented to you that I think was pretty important. Its called alibi witnesses. Because if not the defendant, then who else? Where was he? Who was he with? Wheres Mom? Wheres sister or his cousin? Where is anybody who came in or could have come in to testify that he was at the Sharks game." Defense counsel objected, saying the argument "is commenting on our not presenting evidence." The court sustained the objection. It appears that no admonishment was requested or given. At the prosecutors request, counsel approached the bench and had a discussion off the record.
When the prosecutor resumed his rebuttal, he said, "Ladies and Gentlemen, we dont know where defendant was. We dont know who he was with. The failure to call logical witnesses such as these people where the defendant was at, the people he was spending time with, thats something you can consider because you know what? The evidence in this case has been pretty clear that in fact the defendants the one who committed the crime. So if in fact as the defense is saying its not him and its a case of mistaken I.D., then the failure of these other witnesses to come in and to testify and to tell you where he was, thats damning. Thats something that a lightbulb should go on over your head and you should think about because you know what? Those people dont exist or they would have been in here and you would have heard from them. So consider that."
A prosecutor may neither comment on a defendants failure to testify nor urge the jury to infer guilt from such silence. (People v. Hardy (1992) 2 Cal.4th 86, 154, 825 P.2d 781; Griffin v. California, supra, 380 U.S. at p. 615.) " Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]" (People v. Hovey (1988) 44 Cal.3d 543, 572, 244 Cal. Rptr. 121, 749 P.2d 776, see also People v. Mitcham (1992) 1 Cal.4th 1027, 1051, 824 P.2d 1277.) It is true 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." (People v. Bradford (1997) 15 Cal.4th 1229, 1339, 939 P.2d 259.) But this does not mean that a comment on the absence of testimony is equivalent to a comment on defendants failure to testify.
In reviewing a claim of Griffin error, we ask whether there was a reasonable likelihood that the remarks could have been understood, within their context, to refer to a defendants failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663, 828 P.2d 705.) Appellant argues the prosecutors comments constituted Griffin error because "although the argument ostensibly blamed the defense for failing to produce witnesses who could show that appellant was not the robber by providing an alibi defense, it is clear that the prosecutor was referring to appellant himself, since appellant was the only person who could effectively provide an explanation to refute the prosecutions evidence that he was the robber and wielder of the rifle." We disagree with the notion that appellant was the only person who could provide evidence that he was not the man at Kharoufehs door, and that "[a] jury certainly would not have believed only appellants Mom . . . sister or his cousin. " Here, the evidence established that the crime occurred at 1:00 a.m. in a residential neighborhood near the home where appellant lived with "his whole family." It would seem logical that some family member might be in a position to provide an explanation of appellants whereabouts at the time of the offense under these circumstances, and we do not assume that the jury would have a negative assessment of the credibility of such a witness. The prosecutors reference was expressly directed to appellants lack of alibi witnesses. This reference to the defenses failure to call logical witnesses merely commented on the state of the evidence, rather than on appellants failure to testify, and there is not a reasonable likelihood the remark would have been understood, within its context, to refer to appellants failure to testify. (SeePeople v. Clair, supra, 2 Cal.4th at p. 663.) Accordingly, we find no Griffin error.
IMPOSITION OF ATTORNEYS FEES
Appellant contends the attorneys fees imposed pursuant to Penal Code section 987.8 must be stricken because, as a matter of law, he did not have the ability to pay the fees and he never received notice that he might be required to pay attorneys fees.
At the time of sentencing, the trial court ordered appellant to pay $ 300 in attorneys fees. Defense counsel said, "Your Honor, might I request that the attorney fees be waived in this matter, especially considering the significant amount of time Mr. Grijalva will be in prison? And the $ 5,600 [restitution] fine hell be paying, hes not going to have much of a way to pay that, and I would ask that it be waived." The prosecutor asserted that the attorneys fees could not be waived, and the court and the probation officer expressed agreement with this view. The court said, "Well, [defense counsel], I dont believe that I have the ability to waive that today so Im going to impose that $ 300 attorney fees obligation."
Penal Code section 987.8, subdivision (b) provides in relevant part as follows: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof." (Italics added.) Thereafter, section 987.8, subdivision (g) provides: "As used in this section: . . . [P] (2) Ability to pay means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [P] (A) The defendants present financial position. [P] (B) The defendants reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendants reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [P] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [P] (D) Any other factor or factors which may bear upon the defendants financial capability to reimburse the county for the costs of the legal assistance provided to the defendant."
The use of the word "may" in this statute as to the courts determination of ability to pay, and the provisions of the statute describing what the trial court should consider in making this determination, persuade us that, contrary to the trial courts view, the court was not required to impose attorneys fees pursuant to section 987.8. The probation report indicated as much by recommending "attorney fees if appropriate." (Italics added.) It does not appear that the court exercised its discretion here, or found unusual circumstances negating the assumption that "a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense." (Pen. Code, § 987.8, subd. (g)(2)(B).) At the time the trial court sentenced appellant to over 14 years in state prison, appellant was single, had an eighth grade education, and his "longest and sole employment" was "for five months in 2001" as a parts clerk for Magic Manufacturing. There is no indication in the record what he was paid at that job or that he had any assets. Since it is the government that seeks reimbursement of the attorneys fees, the burden is on the government to present evidence of appellants ability to pay and address the criterion set forth in Penal Code section 987.8, subdivision (g)(2). Accordingly, we will remand the matter to the trial court to enable it either to make the determination described in section 987.8 regarding appellants ability to pay attorneys fees or strike the order.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with instructions to vacate its previous order that directed appellant to pay $ 300 in attorneys fees. The court shall then either conduct a noticed hearing on appellants ability to pay attorneys fees or direct the clerk of the court to amend the abstract of judgment to strike the attorneys fees order and forward a certified copy of the amended abstract to the Department of Corrections. No other modification of the judgment is required.
Wunderlich, J., Mihara, J. WE CONCUR: --------------- Notes: Appellant contends that he did not receive notice, prior to the furnishing of counsel, that he might be required to pay attorneys fees. In light of our disposition, we do not reach this issue.