Opinion
B295711
02-27-2020
THE PEOPLE, Plaintiff and Respondent, v. SILVESTRE LUNA, Defendant and Appellant.
Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. NA106074 APPEAL from a judgment of the Superior Court of Los Angeles County, Laura Laesecke, Judge. Affirmed. Laura R. Sheppard, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Silvestre Luna was convicted of assault, making criminal threats, and stalking. On appeal, he contends the court erred in denying his motion for mistrial after the prosecutor committed misconduct under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), which prohibits using a defendant's reliance on his or her constitutional right to remain silent as evidence of guilt. Finding no basis for reversal, we affirm the judgment.
BACKGROUND
A detailed statement of facts is not necessary given the sole issue presented on appeal. It suffices to say that in early February 2017, defendant punched Edwin Castro in the eye. As a result, Castro suffered "orbital blowout fracture[s]." Later that month, defendant threatened to kill Castro, threw Castro's dog into the street, and hit Castro twice in the face.
Defendant testified in his own defense. During direct examination, defendant admitted he "made contact" with Castro but explained he did so only after Castro charged towards him while defendant was trying to run away from Castro. Defendant also admitted cursing at Castro and scuffling with him over car keys after Castro taunted him. Defendant was arrested in his tool shed and released the following day.
At the beginning of defendant's cross-examination, the prosecutor stated: "Sir, I apologize if I appear a little disorganized, but this is the first time I have heard this. You understand that; right?" Defendant responded, "I understand." Defense counsel immediately asked for a side bar with the court.
Outside the presence of the jurors, the court stated "I know where you are going with this. I don't know whether they even Mirandized him." After defense counsel responded that "[t]hey did," the court remarked, "But we don't know that." Defense counsel then argued that the prosecutor's statement implied that defendant remained silent after he was arrested, "[a]nd left in a vacuum, that hurts him." Defense counsel moved for a mistrial because a limiting instruction would only highlight the issue. The court permitted the prosecutor to conduct a few minutes of cross-examination before concluding the proceedings until the next day.
The next morning, the court heard further argument and denied the mistrial motion. The court emphasized that there was no evidence at trial that defendant was ever given Miranda warnings and chose to remain silent. The court also explained that the prosecutor was not permitted to use defendant's silence for impeachment purposes because it stopped the proceedings immediately after the prosecutor made the challenged statement. Although the court indicated that the challenged statement was not necessarily Doyle error, it would provide the jurors with a curative instruction.
Miranda v. Arizona (1966) 384 U.S. 436, 467-473.
When the jurors returned to the courtroom, the court instructed them as follows: "Yesterday, when [the prosecutor] started off her questioning of the defendant, she made a comment regarding that this was the first time she had heard this information. The only point of that was that this is the first time she has spoken to him. You can't glean anything else from that. So don't take anything else from it. It's just this is the first time she has had a chance to talk to him. Okay. That is the point, that that is why she was explaining why she was getting her notes together, et cetera. I don't want you to assume any other facts from that. Okay. Thank you." During the remainder of the trial, the prosecutor did not mention defendant's silence.
The jury convicted defendant of felony assault by means of force likely to produce great bodily injury, and found true an infliction of great bodily injury allegation. (Pen. Code, § 245, subd. (a)(4); § 12022.7, subd. (a).) The jury also convicted him of making criminal threats (§ 422), misdemeanor assault (§ 240), and stalking (§646.9, subd. (a)).
All undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to an aggregate term of six years and eight months in state prison. The court selected the felony assault count as the base term and sentenced him to the middle term of three years, plus a consecutive three-year term on the great bodily injury enhancement. The court imposed eight months—one-third the middle term of two years—for the criminal threats count to run consecutively, and a concurrent term of six months for the misdemeanor assault conviction. The court imposed and stayed the upper term of three years for the stalking count. The court awarded defendant 125 days of presentence custody credit. This appeal followed.
DISCUSSION
Defendant contends the court erred in refusing to grant a mistrial after the prosecutor committed Doyle error when she "drew attention to [defendant's] post-arrest silence and highlighted its relevance." Defendant's contention is based on the following statement by the prosecutor: "Sir, I apologize if I appear a little disorganized, but this is the first time I have heard this. You understand that; right?"
Doyle prohibits the use of a defendant's silence, after Miranda warnings were given, to impeach an exculpatory explanation offered at trial. The Doyle court reasoned that the warnings provide an implicit assurance that silence will not be penalized. (Doyle, supra, 426 U.S. at pp. 617-618.) In Fletcher v. Weir (1982) 455 U.S. 603, 607 (Fletcher), the Supreme Court made it clear, however, that a defendant's testimony may properly be impeached with references to his post-arrest silence if no Miranda warnings were given following the arrest. California courts, of course, follow this rule. (People v. Delgado (1992) 10 Cal.App.4th 1837, 1840-1843.)
Here, the Attorney General notes there was no evidence at trial that the police gave defendant Miranda warnings. Defendant does not argue otherwise; he claims it is irrelevant that no trial evidence ever revealed whether he was given Miranda warnings. In the alternative, defendant claims that defense counsel's statement to the court that his client had been given Miranda warnings should be treated as evidence.
Defendant fails to convince us that there was a Doyle violation in these circumstances. There is no evidence that he received the assurance implicit in the Miranda warnings that "silence will carry no penalty." (Doyle, supra, 426 U.S. at pp. 617-618; see also Fletcher, supra, 455 U.S. at p. 606 ["Doyle [was] a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him"].) On this point, Fletcher is instructive: "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." (Fletcher, 455 U.S. at p. 607.)
Not only is there is no evidence that defendant was given such "affirmative assurances," there is no evidence that he invoked his right against self-incrimination. (See People v. Tom (2014) 59 Cal.4th 1210, 1223 ["The prosecution may also use a defendant's prearrest silence in response to an officer's question as substantive evidence of guilt, provided the defendant has not expressly invoked the privilege."].) Indeed, none of the police officers involved in defendant's arrest testified about giving defendant Miranda advisements or interrogating him before or after he was arrested.
Officer John Hunter agreed with defense counsel that defendant was cooperative and compliant when the police found him in the tool shed. Hunter, however, was not asked if defendant made any statement or remained silent after the police found him. --------
To be sure, defendant contends that defense counsel's statement at side bar is evidence that defendant received Miranda warnings. It is axiomatic, however, that statements by counsel are not evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1004; see also People v. Medina (1990) 51 Cal.3d 870, 890 ["The record fails to show that defendant was given Miranda warnings prior to his conversation with his sister. Although the record contains a bare assertion to that effect from trial counsel, the record is otherwise silent on the matter, and it seems doubtful that counsel had personal knowledge of the facts as he was not present during the interrogation."].)
Defendant's argument fails for another reason. For Doyle error the prosecutor must make some use of defendant's silence and be permitted to do so by the trial court. (People v. Clark (2011) 52 Cal.4th 856, 959.) In this case, the prosecutor did not attempt to use defendant's purported silence against defendant. As noted by the court, the prosecutor's challenged statement indicated that "she was collecting her thoughts, collecting her notes ... trying to explain to the jury why it was taking her a minute to get up and start to cross-examine." She was not casting suspicion on defendant's silence during a period after the police arrived and arrested him. In fact, the prosecutor did not mention defendant's silence at all during the entire trial, and defendant does not point to any evidence suggesting that he remained silent after he was discovered by the police in the tool shed.
And when a Doyle violation occurs, an "appropriate instruction to the jury ordinarily ensures that the defendant's silence will not be used for an impermissible purpose. [Citation.]" (People v. Clark, supra, 52 Cal.4th at p. 959.) Not only was the court's curative instruction appropriate in this case, there is nothing in the record to suggest the jury failed to follow it. Put another way, "If incipient Doyle misconduct lurked in [the prosecutor's statement], it was thus nipped in the bud." (People v. Tate (2010) 49 Cal.4th 635, 692.)
In short, the court did not err in denying defendant's motion for mistrial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J. WE CONCUR:
EGERTON, J.
DHANIDINA, J.