Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03NF3040, M. Marc Kelly, Judge.
Julie Sullwold Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Barry J.T. Carlton and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant was convicted of rape and forcible genital penetration with a foreign object. He contends the trial judge’s statements during voir dire and the prosecutor’s comments during closing argument infringed his right to a fair trial. He also argues the court prejudicially violated his right to a jury trial when it imposed the upper term sentence for his offenses. We reject these contentions and affirm the judgment.
Appellant was Claudia D.’s neighbor. He was once considered a friend of her family, but when his interest in Claudia turned romantic, her husband felt it necessary to physically confront appellant. After that, Claudia told appellant she did not want to see him anymore, but he continued to pursue her.
One morning, he called Claudia’s apartment several times. First he spoke to Claudia’s son, and then he called back when Claudia was by herself. She told him to leave her alone and threatened to call the police. However, appellant persisted, saying he “wasn’t going to stop.” Claudia hung up the phone and began to call her husband. While she was dialing, appellant entered her apartment through a window. She tried calling 911, but he grabbed the phone and hit her about the head with it. Claudia screamed for help and told him to stop, but he continued hitting her with the phone and struck her in the face with his hand. He also threw her on the couch, choked her and told her he “had to kill her.”
Next, he dragged her under a desk and repeatedly penetrated her vagina with his fingers. He also put his fingers in her mouth and threatened to kill her. Then he hit her in the face, pulled down her shorts and put his mouth on her vagina. Claudia struggled to her feet, but he knocked her back down. Then he took out his penis and said he was going to put it in her mouth. When she covered her mouth with her hand, he grabbed her by the throat and choked her again. Then he got on top of her, held her down and began raping her. While he was doing so, a police officer arrived at the scene. Appellant tried to flee but was apprehended.
Appellant did not testify at trial. In his defense, a friend of Claudia testified Claudia and appellant were long-time lovers. Based on this evidence, the defense argued Claudia consented to having sex with appellant on the day in question. The defense theorized that following the sex, appellant stayed on against Claudia’s wishes, a fight ensued and she ended up getting hurt.
The jury convicted appellant of raping Claudia and forcibly penetrating her with his fingers, but it acquitted him of forcible oral copulation and residential burglary. The jury also found not true allegations appellant kidnapped Claudia and committed the sex offenses during a residential burglary. The trial court sentenced appellant to the upper term of eight years for both convictions and ordered the terms to run concurrently with each other.
I
Relying on Griffin v. California (1965) 380 U.S. 609 (Griffin), appellant contends the trial court made statements during voir dire that infringed his Fifth Amendment right to remain silent and undermined his right to a fair trial. We disagree.
During voir dire, the trial court asked venireman No. 3, “You understand in a criminal case the defendant has an absolute constitutional right . . . not to testify . . . . You understand that very important right?” After the venireman answered yes, the court asked him, “You would want that same protection afforded you if you were ever charged with a crime, would you not, sir?” The venireman said that he would and that no one should be forced to testify.
The court then said “if the defendant chooses not to testify in this particular case, I’m going to instruct you that you cannot consider that in any way; all right? You cannot let that affect your deliberations in any way. Do you understand that, sir?” Venireman No. 3 answered, “Yes, I do” and agreed to follow the court’s instructions, as did all of the other prospective jurors.
Continuing, the court explained, “The reason I bring this up [is because] I’ve had jurors in the past tell me, you know what, I just . . . could not vote not guilty in a criminal case unless I heard the defendant’s side of the story. I would need to hear testimony from the defendant before I could vote not guilty in a criminal case. And I could understand why some people feel that way. It’s natural to feel [there are] two sides to every story.”
Venireman No. 3 told the court that he did not feel that way. The court then asked, “Okay. Anybody fall into that category where they would require the defendant to testify before they could vote not guilty in a criminal trial? [¶] [Venireman No. 3], you understand there may be a myriad of reasons why a defendant in a criminal case would not testify; be it strategic, or advice from his attorney, or what-have-you?” Venireman No. 3 said he understood. The court then told him, “In fact, you understand that the defense has absolutely no burden to prove anything in a criminal case. The burden is entirely on the prosecution. The defense doesn’t have to call any witnesses. They can rest on the state of the evidence.” Again, venireman No. 3 said he understood.
The court went on to say that “with respect to a defendant’s decision not to testify in a criminal case, you can understand strategically, tactically where an attorney advises his client, you know what, I don’t want to put you on the witness stand and risk cross-examination against a skilled lawyer, so my advice to you is not to testify on this case and rest on the state of the evidence in the case. [¶] And you [would] want to follow your attorney’s advice if that was the case, if you were charged with a crime, would you not?” Venireman No. 3 said yes, and so did all of the other prospective jurors.
Based on the court’s comments, defense counsel requested a mistrial and a new venire panel on the ground the court improperly invited the prospective jurors to speculate as to why a criminal defendant may chose not to testify. More specifically, counsel argued the court’s comments “suggest[ed] to the jury exactly what really we try to avoid, and that’s that the jury would believe that [the defendant] has decided that he can’t put his story up against someone who could [skillfully] expose it for its weaknesses. So, in effect, the defendant may decide I can’t put my lies up against a skillful cross-examiner.”
After reviewing the record of voir dire, the court denied defense counsel’s motion for a mistrial and a new venire. The court did not believe its comments were improper, but to the extent they were, the standard instructions on the privilege against self-incrimination would suffice to set the jury straight with regard to a defendant’s right not to testify.
The first instruction provided, “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.” (CALJIC No. 2.60.) The court also told the jurors, “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any essential element.” (CALJIC No. 2.61.)
In Griffin, the United States Supreme Court held the Fifth Amendment “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Griffin, supra, 380 U.S. at p. 615, fn. omitted.) Appellant claims the court’s comments violated Griffin because they “created the very real potential for the jurors to believe [his] testimony would necessarily be incriminatory” and that he would be “exposed as untruthful” if he decided to take the stand.
We cannot agree. The court never said skillful cross-examination would prove appellant a liar. It said there are many reasons why a criminal defendant may chose to avoid cross-examination, which is both nonjudgmental and true. As the Griffin court explained, “‘It is not every one who can safely venture on the witness stand though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however, honest, who would, therefore, willingly be placed on the witness stand. . . .’ [Citation.]” (Griffin, supra, 380 U.S. at p. 613.)
Since there are many reasons a person — even an innocent one — may choose to invoke the privilege against self-incrimination, we do not believe the court’s comments were improper. Telling the jury a criminal defendant may decide to avoid cross-examination as a tactical matter or after consultation with counsel did not imply that such a decision was indicative of guilt. While the trial judge’s thought might have been clearer had he expressed the reluctance of even an innocent man to face a skillful cross-examination, it would not have been qualitatively different from what he said. We are confident jurors understand what Griffin said forty years ago about both the innocent and the guilty fearing skillful cross-examination. Therefore, the trial court did not violate Griffin, nor did it err in refusing to declare a mistrial and discharge the venire.
II
Appellant also contends the prosecutor violated Griffin in closing argument by improperly commenting upon his failure to testify. Again, we disagree.
During closing argument, the prosecutor said, “I have no idea what the defense is going to argue when they get their chance.” “I have no idea what Mr. Sanders (Defense Counsel) will say to counter [the charges]. He’ll say [Claudia] wasn’t beaten[?] she wasn’t strangled[?] she consented[?] [she had] fun[?] I have no idea.” “I don’t know what they’re going to say.” “Again, I don’t know what defense’s argument is going to be; ask for lesser offenses[?], ask for not guilty[?] I don’t know. He told you in opening statements, he asked for not guilties. Based on what? What doubt is there? These crimes happened.” “Are they going to claim the acts didn’t happen? [¶] What about the officer that caught him there on top of her. Are they going to say it didn’t happen at all? I don’t know. [¶] . . . [¶] Possible defenses? What are they going to argue? I don’t know. [¶] Mr. Sanders will have a chance.”
Appellant complains these statements suggested that his failure to testify was incriminating because he was the only person who could contradict Claudia’s version of events. (See People v. Bradford (1997) 15 Cal.4th 1229, 1339.) However, the prosecutor never suggested the onus was on appellant to explain what happened. Rather, he said he did not know what defense counsel or “the defense” was going to argue in the face of the evidence that was presented. “‘“[C]omment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced . . .”’ [citation]” does not violate the Fifth Amendment. (United States v. Mende (9th Cir. 1995) 43 F.3d 1298, 1301; accord People v. Brown (2003) 31 Cal.4th 518, 554 [prosecutor is permitted to comment on the defense’s failure to introduce material evidence or call logical witnesses]; People v. Bradford, supra, 15 Cal.4th at p. 1339 [same]; People v. Medina (1995) 11 Cal.4th 694, 755-756 [same].)
More than once in his argument, the prosecutor did use the word “they” in questioning what the other side was going to argue. However, viewed in context, this seems quite clearly a figure of speech, an impersonal reference to “the other side” rather than to appellant himself. Because the prosecutor did not comment on appellant’s decision to invoke his privilege against self-incrimination, he did not violate Griffin. (See United States v. Mares (9th Cir. 1991) 940 F.2d 455, 461 [no Griffin error where prosecutor similarly referred to the defense as “they” in closing argument].)
III
In sentencing appellant, the judge imposed the upper term of eight years on the rape count. While noting appellant had never been convicted before and appeared remorseful, the judge felt the upper term was justified because the crime was vicious and callous. The court noted Claudia was defenseless, “shaking uncontrollably and in fear for her life” throughout the attack. And, because appellant waited until she was home alone before mounting the attack, she was particularly vulnerable.
“[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 863-864].) While this rule does not apply to “a fact admitted by the defendant” or “to the aggravating fact of a prior conviction” (People v. Sandoval (2007) 41 Cal.4th 825, 836-837), neither of those exceptions apply here. Therefore, imposition of the upper term violated appellant’s Sixth Amendment right to a jury trial. (Id. at pp. 837-838.)
The denial of the right to a jury trial on aggravating circumstances is subject to harmless error analysis: “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (People v. Sandoval, supra, 41 Cal.4th at p. 839.)
The record shows appellant mounted what can only be described as a vicious and callous attack against Claudia. It was vicious because, in addition to committing the underlying sex crimes, appellant hit Claudia about the head with a phone and his fists, repeatedly choked her and threatened to end her life. And it was callous because, despite Claudia’s pleas for appellant to leave her alone, he raped her in her own home, a consideration the trial court rightly considered significant. He was totally oblivious to her feelings, and during the sexual attack he violated her in a brutal and degrading fashion. The attack was, by all measures, a calculated and pernicious display of violence and subjugation.
All things considered, we are convinced beyond a reasonable doubt that, applying the beyond-a-reasonable-doubt-standard, the jury would have found appellant’s actions disclosed “a high degree of cruelty, viciousness, or callousness,” which is an aggravating circumstance for sentencing purposes. (Cal. Rules of Court, rule 4.421(a)(1).) And since the presence of a single valid aggravating circumstance is sufficient to justify imposition of an upper term (People v. Black (2007) 41 Cal.4th 799), appellant’s sentence must be upheld. The violation of appellant’s right to a jury trial was not prejudicial under the circumstances presented.
The judgment is affirmed.
WE CONCUR: ARONSON, J. IKOLA, J.