Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD223933, Roger W. Krauel, Judge.
IRION, J.
Jiovani Guerrero was convicted of grand theft auto (Pen. Code, § 487, subd. (d)), unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (§ 496, subd. (a)) and giving false identification to a peace officer (§ 148.9, subd. (a)). On appeal, Guerrero contends the judgment must be reversed because the prosecutor violated his privilege against self-incrimination during closing argument when the prosecutor described as "undisputed" certain evidence introduced at trial and thereby called attention to Guerrero's failure to testify. Guerrero also contends his conviction for unlawful taking or driving of a vehicle must be reversed because that offense is necessarily included in grand theft auto.
Undesignated statutory references are to the Penal Code.
We agree that the conviction for unlawful taking or driving of a vehicle must be reversed, but we disagree that the prosecutor's comments during closing argument violated Guerrero's privilege against self-incrimination. We therefore affirm the judgment in part and reverse it in part.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
Guerrero drove himself and neighbor Daphne Acosta in Acosta's friend's car to the Shadow Mountain Community Church in El Cajon (the Church), where they met Jane Lewis, an employee of the Church. Acosta told Lewis she wanted information about the Church's program for her six-year-old child. Lewis offered Acosta and Guerrero a tour so they could see what the children were doing. Acosta and Guerrero accepted the invitation.
Before they started the tour, Guerrero told Lewis he needed to use the restroom. Lewis told Guerrero there was a restroom on the way and stopped to pick up her keys. Lewis later remembered she had placed her mobile telephone with the keys but that the telephone was not there when she picked up the keys. Lewis was then called away; she directed Acosta and Guerrero to the restroom and told them to wait for her there.
When Lewis returned a few minutes later, she found only Acosta waiting and gave her the tour. On the way back from the tour, Acosta checked the restroom where she had left Guerrero, but he was not there. When Lewis and Acosta returned to the information center of the Church, Guerrero suddenly reappeared.
Acosta and Guerrero apparently separated again. As Acosta drove away from the Church in her friend's car, she saw Guerrero driving a "nice black car" she had never seen him driving before. Since Acosta did not know how to get back to her house from the Church, she followed Guerrero. When they arrived, Guerrero gave Acosta a mobile telephone, which she gave to Guerrero's father the next day. Several weeks later, Guerrero's father took this telephone to the Church and gave it to Lewis, who recognized it as hers.
After Acosta and Guerrero left the Church, David Jeremiah, the Church's pastor, discovered his car keys and mobile telephone were missing from the drawer in which he had left them. When he walked to the parking lot, he discovered that his vehicle, a black Cadillac Escalade, was not there. Jeremiah notified police that his Escalade was missing.
Police Officers Ariel Savage and David McClain found Jeremiah's Escalade parked on a street in San Diego. Guerrero had driven Acosta there in the Escalade so that she could meet her sister. When police arrived, Guerrero was standing behind the Escalade by himself. When Officer Savage ordered Guerrero to get on the ground, he threw a set of keys under the vehicle parked behind the Escalade and then lay on the ground. Officer McClain retrieved the keys, which were determined to belong to Jeremiah. On the ground where Guerrero had lain, Officer McClain also found a mobile telephone that belonged to Jeremiah.
Guerrero was arrested at the scene. He gave Officer McClain false information regarding his name and date of birth.
B. Trial Court Proceedings
A jury found Guerrero guilty of grand theft auto (count 1; § 487, subd. (d)); unlawful taking or driving of a vehicle (count 2; Veh. Code, § 10851, subd. (a)); receiving stolen property (count 4; § 496, subd. (a)); and giving false identification to a peace officer (count 5; § 148.9, subd. (a)). The jury found Guerrero not guilty of burglary (count 3; § 459).
After the jury returned its verdicts, Guerrero waived his right to a trial on his two prior felony convictions and admitted the convictions.
The trial court sentenced Guerrero to prison on counts 1, 2 and 4 for a total of five years; and to jail for 116 days on count 5.
II
DISCUSSION
A. Guerrero's Privilege Against Self-incrimination Was Not Violated
Guerrero contends the judgment must be reversed because the prosecutor improperly highlighted the fact that he failed to take the witness stand when the prosecutor commented during closing argument that certain evidence was "undisputed." According to Guerrero, these comments violated his privilege against compulsory self-incrimination, which "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California (1965) 380 U.S. 609, 615 (Griffin); see also People v. Murtishaw (1981) 29 Cal.3d 733, 757 (Murtishaw) ["Prosecutorial comment which draws attention to a defendant's exercise of his constitutional right not to testify, and which implies that the jury should draw inferences against defendant because of his failure to testify, violates defendant's constitutional rights."].) For reasons we shall explain, we disagree.
The federal Constitution provides: "No person... shall be compelled in any criminal case to be a witness against himself." (U.S. Const., 5th Amend.) The United States Supreme Court has held that this privilege against compulsory self-incrimination is protected against abridgment by the states through the Fourteenth Amendment. (Malloy v. Hogan (1964) 378 U.S. 1, 6.)
Guerrero challenges the following comments made by the prosecutor during closing argument to the jury:
"Undisputed.... The defendant was the only person near the car. No one is disputing that. The hood was warm. The lights were on. The windows were down. No one is disputing that.
"And the defendant had the keys in his hand, and nobody said, 'Officer, that's not true' because nobody is disputing that.
"No one is disputing that he was alone with the Escalade, no one is disputing that he threw the keys, and nobody is disputing that he tried to hide the phone when he was laying on top of it; that the car had recently been driven; that the defendant gave a false name; that the defendant gave a false date of birth twice. Nobody is disputing any of that."
Although Guerrero now complains this portion of the prosecutor's closing argument amounted to comment upon his failure to testify that is forbidden by Griffin, supra, 380 U.S. 609, 615, he did not challenge any of these comments at trial. Our Supreme Court has repeatedly held that a claim of Griffin error is forfeited on appeal unless at trial the defendant objected to the comments by the prosecutor that allegedly violated the privilege against self-incrimination, made an assignment of misconduct or requested an admonition that the jury disregard the comments. (See, e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1303-1304; People v. Young (2005) 34 Cal.4th 1149, 1187; Murtishaw, supra, 29 Cal.3d at pp. 758-759.) The record here contains no objection, assignment of misconduct or request for admonition by Guerrero's counsel pertaining to the portion of the prosecutor's closing argument Guerrero now challenges on appeal. Guerrero therefore forfeited his claim of Griffin error.
In fact, Guerrero's trial counsel stated during his closing argument: "As to Count 5, I'm not disputing that. [Guerrero] gave a false date of birth. He misspelled his [first] name. He used a different last name. He gave false information to a police officer in the course of their [sic] duties. That's not in dispute. That's going to be a quick one for you."
Even if Guerrero had not forfeited his claim of Griffin error, we would reject the claim on the merits. "Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf." (People v. Hughes (2002) 27 Cal.4th 287, 371, italics added (Hughes).) "If, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendant's privilege against self-incrimination describe the evidence as 'unrefuted' or 'uncontradicted.' " (People v. Johnson (1992) 3 Cal.4th 1183, 1229.) Here, there were witnesses other than defendant who could have contradicted the testimony that the prosecutor described as "undisputed" during closing argument.
Officers Savage and McClain were present when the Escalade was found, and they both participated in the apprehension of Guerrero at the scene. In addition, Acosta testified that Guerrero had driven her to the scene and that she saw him being arrested. Thus, Acosta or Officer McClain could have contradicted Officer Savage's testimony that the physical condition of the Escalade (e.g., that the hood was warm and the headlights were on) indicated it had recently been driven. Likewise, Acosta, Officer Savage or Officer McClain could have contradicted some or all of the testimony about Guerrero's proximity to the Escalade, throwing the keys, lying on top of the cell phone and giving false identifying information upon arrest. We therefore reject Guerrero's contention that the prosecutor committed Griffin error, because Guerrero was the only person who could have contradicted or refuted the testimony that the prosecutor argued was "undisputed."
As noted in footnote 3, ante, Guerrero's trial counsel conceded that the evidence that Guerrero gave false identification to the police was "not in dispute." Guerrero therefore may not complain on appeal that the prosecutor described the same evidence as "undisputed." (See, e.g., People v. Williams (1968) 265 Cal.App.2d 888, 899 [defendant may not challenge on appeal error acquiesced in at trial].)
Moreover, when the comments challenged by Guerrero are considered in light of the prosecutor's entire closing argument, they are not objectionable under Griffin, supra, 380 U.S. 609, 615. In reviewing a claim of Griffin error, we must determine whether there was "a reasonable likelihood that any of the comments could have been understood, within its context, to refer to defendant's failure to testify." (People v. Clair (1992) 2 Cal.4th 629, 663, italics added.) There was no such likelihood here.
Immediately before the prosecutor described various pieces of evidence as "undisputed, " he stated that the concept of "reasonableness" occurred in several of the jury instructions and reminded the jury it "could draw inferences based on circumstantial evidence." Immediately after he listed the various pieces of "undisputed" evidence, the prosecutor argued that even though there was no videotape of the events, there was "a mountain of direct and circumstantial evidence" from which the jury could "feel reasonably confident in a decision to find [Guerrero] guilty." The prosecutor then went on to discuss the meaning of reasonable doubt. This context makes clear that the prosecutor's description of certain evidence as "undisputed" was not a reference to Guerrero's failure to testify at trial. It was, rather, part of the prosecutor's argument that the jury could find Guerrero guilty beyond a reasonable doubt based on inferences that reasonably could be drawn from the uncontradicted evidence. No Griffin error occurs where, as here, the prosecutor does not invite the jury to infer guilt from defendant's failure to testify but instead merely comments on the state of the evidence. (People v. Brady (2010) 50 Cal.4th 547, 566; People v. Stewart (2004) 33 Cal.4th 425, 505-506; Hughes, supra, 27 Cal.4th at pp. 373-375.)
A contrary conclusion is not required by any of the cases cited by Guerrero in which courts found error under Griffin, supra, 380 U.S. 609, 615. In People v. Medina (1974) 41 Cal.App.3d 438, the prosecutor not only stated that certain testimony was "unrefuted" but also made several other comments that called attention to the fact that all eyewitnesses except the defendants " 'were put under oath' " and " 'were subject to perjury.' " (Id. at p. 457.) Similarly, in People v. Guzman (2000) 80 Cal.App.4th 1282, 1288-1289, the prosecutor drew attention to the defendant's failure to testify by repeatedly emphasizing the victim's willingness to cooperate with police and to testify at trial and contrasting that " 'responsible' " behavior with the defendant's. In People v. Vargas (1973) 9 Cal.3d 470, 474, the prosecutor stated during closing argument, "And there is no denial at all that [the defendants] were there." (Italics omitted.) This constituted Griffin error because "the word 'denial' connotes a personal response by the accused himself, " and "the jury could have interpreted the prosecutor's remarks as commenting upon defendant's failure to take the stand and deny his guilt." (Vargas, at p. 476.) Lastly, in People v. Gioviannini (1968) 260 Cal.App.2d 597, 604-605, the prosecutor expressly referred to the lack of a denial by the defendant and otherwise drew attention to the defendant's failure to testify by suggesting that certain evidence could only be explained by two people, the defendant and the murder victim. In contrast to these cases, here the prosecutor never mentioned Guerrero's failure to deny the accusations against him; never stated or implied that only Guerrero could tell the jury what really happened; and did not otherwise call attention, directly or indirectly, to Guerrero's failure to testify.
In sum, we conclude the prosecutor's comments during closing argument that certain evidence was "undisputed" did not constitute error under Griffin, supra, 380 U.S. 609, 615. We therefore need not and do not address the parties' related arguments concerning the prejudicial effect of the error or the ineffective assistance of Guerrero's counsel for failing to object to the prosecutor's comments.
B. The Conviction of Violation of Vehicle Code Section 10851 Must Be Reversed
Guerrero contends, and the People concede, that his conviction of grand theft auto on count 1 precludes his conviction of unlawful taking and driving a vehicle on count 2 because the former offense necessarily includes the latter. We agree.
We reject Guerrero's related contention, styled as an "alternative, " that his conviction on count 1 for grand theft auto should be reversed because the trial court did not instruct the jury that if it had a reasonable doubt whether he was guilty of grand theft auto or violation of Vehicle Code section 10851, it had to convict him only of the latter. (See People v. Dewberry (1959) 51 Cal.2d 548, 555 [when evidence sufficient to support guilty verdict of both offense charged and lesser included offense, jury must be instructed that if it has reasonable doubt as to which offense was committed, it must find defendant guilty only of lesser offense].) Here, the trial court instructed the jury that Guerrero was entitled to an acquittal unless the evidence proved him guilty beyond a reasonable doubt, and that it had to consider each count separately and return a separate verdict on each count. Since the jury found Guerrero guilty of both grand theft auto and violation of Vehicle Code section 10851, the jury had no reasonable doubt between the two offenses. Thus, although it was error to convict Guerrero of both offenses, as explained in the text, it was not Dewberry error.
It is well established that multiple convictions based on necessarily included offenses are prohibited. (E.g., People v. Ramirez (2009) 45 Cal.4th 980, 984; People v. Cole (1982) 31 Cal.3d 568, 582.) A violation of Vehicle Code section 10851 is a lesser included offense of grand theft auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Where, as here, the jury finds defendant guilty of both a greater offense and a lesser included offense and the evidence supports the conviction of the greater offense, the conviction of the lesser included offense must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.) Hence, Guerrero's conviction on count 2 must be reversed.
DISPOSITION
The conviction on count 2 for violation of Vehicle Code section 10851, subdivision (a) is reversed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment deleting the conviction and associated prison sentence on count 2 and to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: McCONNELL, P. J.O'ROURKE, J.