After Biggins's preliminary hearing testimony was read to the jury, defendants moved for a mistrial, arguing that since Biggins was now charged with perjury as well as murder, his prior testimony was unreliable and prejudiced the defense. After a hearing, the trial court denied the motion, relying in significant part on People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1546-1547 (Hollinquest).
'" (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1556 (Hollinquest), quoting Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 330.)
The California Court of Appeal affirmed his conviction on December 20, 2010. People v. Hollinquest, 190 Cal. App. 4th 1534 (2011). Petitioner filed a state habeas petition on January 26, 2011.
In sum, appellants "undertook a thorough and effective cross-examination" of Feissa and were able to comprehensively question him about his motives to testify falsely and about factors that affected his credibility. (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1549.) Appellants were also allowed to impeach Feissa's credibility through evidence that had not been presented at the preliminary hearing.
(Doyle, supra, 426 U.S. at p. 619.) Since Doyle, courts have recognized that its underlying principles are equally applicable to cases in which a defendant does not testify and that the Doyle rule may, under certain circumstances, apply to a defendant's silence in the presence of private parties rather than police interrogators. (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1556-1558 (Hollinquest).) Miranda v. Arizona (1966) 384 U.S. 436.
"'To assess whether these questions constitute Doyle error, we ask whether the prosecutor referred to the defendant's postarrest silence so that the jury would draw "inferences of guilt from [the] defendant's decision to remain silent after ... arrest."'" (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1556 (Hollinquest), quoting Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 330.)
First, defense counsel at the preliminary hearing engaged in an in-depth cross-examination, asking Chatman questions about the words that had been exchanged, his group's conduct and what was taking place at various points in the surveillance video recording. (See People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1549, 119 Cal.Rptr.3d 551 ( Hollinquest ) [prior testimony of witness who testified at the preliminary hearing under a grant of use immunity but was later charged in the crime and invoked his right against self-incrimination was admissible at trial; appellate court observed that "defense counsel undertook a thorough and effective cross-examination of the witness" at the preliminary hearing].) Second, there is nothing in the record here that calls into question the trial court's finding that the defense had access to Mrs. Hull and had over a month to obtain information from her about what happened at the family home the day after defendant's arrest.
Defense counsel's performance cannot be considered deficient if there was no error to object to." (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 (Eshelman); People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555 (Hollinquest).) We construe the trial court's ruling of "invited error" as a finding that at least some portion of the prosecutor's questions that were ultimately stricken were improper and constituted Doyle error.
Defense counsel's performance cannot be considered deficient if there was no error to object to." (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 (Eshelman); People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555 (Hollinquest).) We construe the trial court's ruling of "invited error" as a finding that at least some portion of the prosecutor's questions that were ultimately stricken were improper and constituted Doyle error.
3.2.2 Application of Doyle Defendant maintains the giving of CALCRIM No. 357 violates the principles set forth in Doyle, supra, 426 U.S. 610. Doyle held a defendant's postarrest silence after Miranda [v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda)] warnings are given may not be used "'to impeach the defendant's trial testimony'" (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555, fn. omitted (Hollinquest)) or "'at trial in order to imply guilt from that silence'" (ibid.). The reason for this is using "'"silence for impeachment [is] fundamentally unfair . . . because 'Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.