Opinion
A152441 A152457
12-11-2018
THE PEOPLE, Plaintiff and Respondent, v. IVAN MARTINEZ-CHAVARIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1701507)
A jury found defendant Ivan Martinez-Chavarin guilty of four felonies involving his possession of a firearm, and the trial court found that he had thereby violated his probation in a separate case. On appeal, he claims that his convictions, and therefore the probation-violation finding, must be reversed because the prosecutor committed Griffin error by commenting on the defense's failure to produce certain evidence. We affirm.
Griffin v. California (1965) 380 U.S. 609.
Martinez-Chavarin filed two appeals, one from the convictions and the other from the order revoking probation, which we consolidated.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Late on the night of April 3, 2017, Eureka police officer Dustin Nantz was on patrol when he noticed a Ford sedan with one of its brake lights out. He put on his vehicle's emergency lights to pull over the Ford, which drove another block before stopping. The officer approached the Ford and observed a woman in the driver's seat and Martinez-Chavarin in the front passenger's seat.
Officer Nantz asked the woman and Martinez-Chavarin for identification. As Martinez-Chavarin reached for his wallet, the officer noticed an empty "brown leather holster attached to the belt" near his right hip. The officer called for backup "in case there was a firearm inside of the vehicle." He also ran a record check, which revealed that both the woman and Martinez-Chavarin were on felony probation with a search-and-seizure clause and that Martinez-Chavarin "possibly had a felony warrant for his arrest."
At trial, Martinez-Chavarin stipulated that he had previously been convicted of a felony, that as a condition of his probation he was prohibited from possessing firearms, and that he was also prohibited from purchasing or receiving firearms under a court protective order from the same case.
After backup arrived, Officer Nantz told Martinez-Chavarin that he could see the holster on his belt. Martinez-Chavarin "said that the holster . . . was for a revolver-shaped lighter that was not with him, but that his probation officer had approved for him to have." Officer Nantz had Martinez-Chavarin step out of the Ford and handcuffed him.
The other police officer then saw "a firearm sitting underneath the front passenger seat," which was quickly determined to be a small, loaded, .380 semiautomatic pistol. Officer Nantz "removed all items from [Martinez-Chavarin], his person, his pockets, and . . . secured him into the rear of [the] patrol car." "[A] small piece of plastic with a white crystalline substance," later determined to be about .25 grams of methamphetamine, a usable amount, was found in Martinez-Chavarin's pants pocket. No other items of evidentiary value were located in the Ford or on either of its occupants.
About 15 to 20 minutes after placing Martinez-Chavarin in the patrol vehicle, Officer Nantz returned to question him. Martinez-Chavarin claimed that the pistol "did not belong to him." When asked about the holster, which was no longer on his hip, Martinez-Chavarin responded, " 'What holster?' " The officer pointed out that his body camera had recorded their earlier conversation about that item, and Martinez-Chavarin "stated that the holster must be somewhere in the rear of [the officer's] patrol vehicle."
After delivering Martinez-Chavarin to be booked, Officer Nantz discovered that Martinez-Chavarin had been sitting on the holster, which had been torn from his belt. Small pieces of leather ripped from the holster were on the floor of the patrol vehicle. An examination of the holster revealed "distinctive groove marks in it from what appeared to be prolonged exposure to something being placed inside of it." The pistol recovered from the Ford "fit snugly and firmly inside of the holster." Although the holster was "a little too big" for the pistol, it "appeared that the holster was for that firearm" based on how the pistol slid into the groove marks. Martinez-Chavarin asked that the pistol be examined for fingerprints, but this was not done.
The defense presented three witnesses. First, Martinez-Chavarin's probation officer testified that soon after being placed on probation in November 2016, Martinez-Chavarin asked whether he would be allowed to possess "a lighter that resembled a firearm." Martinez-Chavarin showed the probation officer a cigarette lighter shaped like a revolver that "was very plasticky," "had an orange tip," and "looked like a toy." The probation officer authorized Martinez-Chavarin to possess the lighter but cautioned him to be careful about displaying it because "it could be misconstrued possibly as a weapon." On cross-examination, the probation officer testified that Martinez-Chavarin never mentioned carrying the lighter in a holster, which "would not [have been] compliant with his orders."
A teenager who lived with Martinez-Chavarin, a friend of her mother's, testified that she had seen him with a gun-shaped cigarette lighter which "[h]e kept . . . in his holster most of the time." Finally, a friend of Martinez-Chavarin's testified that she had seen him with a pistol-shaped lighter he kept in a holster. She "told him it was dumb to carry it around" because "[i]t just looked so real." She had never seen him with a real gun, however.
The jury convicted Martinez-Chavarin of one count of possession of a firearm by a felon; two counts of unlawful firearm activity, one based on violating a probation condition and one based on violating a protective order; and one count of possession of a controlled substance while armed with a firearm. The trial court found that Martinez-Chavarin had a prior conviction for a serious or violent felony, or strike, and, based on his convictions in this case, had violated his probation in a felony case and two misdemeanor cases.
The convictions were under Penal Code sections 29800, subdivision (a)(1) (possession of firearm by felon), 29815, subdivision (a) (unlawful firearm activity based on probation violation), and 29825, subdivision (a) (unlawful firearm activity based on protective order violation), and Health and Safety Code section 11370.1, subdivision (a) (possession of controlled substance with firearm).
Martinez-Chavarin was sentenced to a total term of seven years and eight months in prison. He received a term of three years, doubled because of the strike, for possession of a controlled substance while armed with a firearm and three concurrent terms of two years, doubled, for the other three convictions. He also received a consecutive term of one year and eight months based on the other felony case, and his probation in the misdemeanor cases was terminated.
II.
DISCUSSION
Martinez-Chavarin's sole claim on appeal is that the prosecution's rebuttal argument improperly commented on his failure to testify, in violation of his Fifth Amendment rights under Griffin. We are not persuaded.
In closing argument, Martinez-Chavarin's trial counsel stated that the defense had "no duty . . . whatsoever" to produce evidence or witnesses. He urged the jury not to draw negative inferences from the absence of any particular evidence, saying, "[T]he ability to capture evidence before it's lost or stolen, that is, to preserve it before it's missing, before it's tampered with, . . . it may be obliterated by the handling of other things and doing other things. [¶] All of that may work against the ability to put on a particular piece of evidence, and you don't get to know the details of why." Emphasizing this point, counsel later argued, "You're not to say, 'Well, why didn't the defendant come forward with this or that or the other?' First of all, he has no burden. But more importantly, I think you'll understand that that's not always in the criminally charged person's power."
In rebuttal, the prosecutor noted that Martinez-Chavarin did "not have to present any evidence, but in this case he chose to." Referring to a photograph of a gun-shaped lighter that was supposedly similar to Martinez-Chavarin's, an exhibit the defense had used when questioning its witnesses, the prosecutor said, "Take a good look at that. He presented a piece of paper from a www.Google.com search. Okay? Where is the—where is the real gun? Or where is the real lighter?"
Defense counsel objected, stating, "That's an improper argument, suggesting the defendant would have to produce evidence." The trial court responded, "Well, the defense does not have to produce evidence, but when they do, I think the prosecutor can comment on the evidence that's produced." After the objection was overruled, the prosecutor continued, referring to the lighter, "That would be nice to have. Right? If this actual thing exists and looks like this, why doesn't he produce it so that you can take it back to the jury deliberation room and see which item fits better into that holster? Do they expect you to put this piece of paper in the holster and make a decision? So, think about that."
Under the Fifth Amendment to the federal constitution, "[n]o person . . . shall be compelled in any criminal case to be a witness against himself" or herself. (U.S. Const., 5th Amend.) "This provision 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' " (People v. Lopez (2018) 5 Cal.5th 339, 368, quoting Griffin, supra, 380 U.S. at p. 615.) "[I]t is error for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide." (People v. Hughes (2002) 27 Cal.4th 287, 372.) Griffin does not, however, forbid " ' "comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses." ' " (Hughes, at p. 372.)
Initially, the Attorney General argues that Martinez-Chavarin forfeited this claim, because his objection to the challenged argument was not specific enough and he did not request that the jury be admonished to disregard it. We will consider the claim on the merits, and we thus need not address Martinez-Chavarin's alternative claim that his trial counsel rendered ineffective assistance by making an insufficient objection.
Martinez-Chavarin contends that the prosecution's rebuttal argument "was a thinly veiled comment that [he] himself had not testified," because "[o]nly [he] would have been able to locate [the lighter] if it still existed . . . and provide it for the jury's inspection" or explain what had happened to it. It is hardly clear that Martinez-Chavarin was the only person who could locate the lighter, as he lived with other people who might have been able to find it among his personal effects. Even if he was the only person who could direct someone else to it, he does not explain how his testimony was required to locate it. And we agree with the Attorney General that, had the lighter been located, Martinez-Chavarin's testimony would not have been required to introduce it into evidence. All the defense witnesses testified to having seen it, and presumably at least one of them could have provided a foundation for its admission. Finally, if the lighter could not be located, Martinez-Chavarin's testimony was not necessarily required to explain why, depending on the reason for its disappearance.
In any case, even if the challenged argument had amounted to Griffin error, we would conclude that it was harmless beyond a reasonable doubt. (See People v. Thompson (2016) 1 Cal.5th 1043, 1118.) The prosecutor's comments were of the type—"short, isolated statements not clearly calling for improper consideration of a defendant's silence"—that our state Supreme Court has generally found harmless. (Ibid.) Moreover, in its closing argument the defense emphasized it had no obligation to produce evidence, and the trial court instructed the jury under CALCRIM No. 355 not to consider for any purpose the fact that Martinez-Chavarin had not testified. Under these circumstances, there was no prejudice requiring reversal of either his convictions or the probation-violation finding. (See Thompson, at p. 1118.)
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Kelly, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------