Opinion
H024401.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. ISIDRO SILVA, Defendant and Appellant.
Isidro Silva was found guilty of violating Penal Code section 262, subdivision (a), (spousal rape), following a court trial. The court suspended imposition of sentence and placed defendant on probation for a period of five years. Defendant Silva appeals. (§ 1237.)
Defendants sole contention on appeal is that the court improperly inferred guilt from the fact he did not testify. We affirm.
A. Factual and Procedural Background
The victim, Jane Doe, testified that she was still married to defendant at the time of trial in February 2002. Doe, who was 26 years of age at the time of trial, married defendant in Mexico when she was 17 years old. They had come to the United States together in 1994. She and defendant had two daughters.
Doe testified that she and defendant argued during their marriage. He was possessive and wanted her to ask his permission to leave the apartment or use the telephone. She indicated that defendant had hit her several times.
According to Doe, on March 3, 2001, defendant called the police because she had not requested permission to go out with a friend. She had gone out to eat with a female friend while another friend took care of her daughters. Doe admitted that prior to that date, on an occasion when she was angry, she had told defendant during a heated argument that she wanted to kill him and, on March 3, defendant told police about that statement.
Doe had lived in the apartment, which had one bedroom, for seven or eight years. There was no door between the bedroom and the living room. Her daughters and her husband and she slept in the bedroom in two beds. Defendants nephew had lived with them and slept in the living room for about a year but had moved out a "little bit" before January 2001. Defendants brother had lived with them before that. Doe indicated that she and defendant had sexual intercourse in the bedroom when their daughters were asleep and not in the bathroom.
Doe stated that, on June 15, 2001, a decision had been made that she and defendant would divorce and papers were filed. Doe stated that defendant moved out of their apartment on June 16, 2001. It was agreed that defendant could see the girls any time and they would share custody 50-50.
Doe indicated that on June 24, 2001, defendant came to the apartment to visit their two girls, ages four and three, and take them to a rodeo. When he arrived, Doe was on the telephone and defendant asked whether she was talking to her boyfriend. According to Doe, in order to avoid arguing, she told him yes. Doe bathed the children, changed their clothes, and got them ready, which took about two hours. Defendant took a shower and Doe combed the girls hair.
According to Doe, defendant said he and the girls were going to leave and Doe told defendant she was going to take a shower and asked defendant to lock the front door when he left. Doe went into the bathroom to take a shower. She locked the bathroom door, took off her shoes, and began unbuttoning her pants.
Doe testified that defendant told her that one of the girls wanted to use the bathroom. She told him that she "was going to go in and take a shower so that the girl could go in." The bathroom door could be unlocked from the outside with an object. Doe heard the bathroom door being opened by someone, whom she knew to be defendant because he was the only other adult present and her children were not able to open the door with an object. She later determined that defendant had used a kitchen knife to unlock the bathroom door because he left it on top of a tape recorder.
Doe testified that defendant opened the door and Doe told him to get out. Defendant came in and closed the door. According to Doe, defendant told her she was going to pay. Defendant grabbed her and pulled down her pants together with her underwear. While he was pulling down her pants, he was holding her left wrist and twisting her left hand behind her back. She was left in her bra and her T-shirt or undershirt.
Doe recalled that defendant undid his shorts. He was holding her left arm behind her back the entire time. She was hitting him in the chest with her free hand while he was taking down his shorts. Defendant grabbed her right hand and put it above her head. He then tried to spread her legs apart with his legs. She was unable to move. At some point during the incident, defendant hit her in the face with his hand and pushed her with his elbows. Defendant put his penis into her vagina. Defendant kept her in that position for two to three minutes, ejaculated, and let her go.
Doe testified that defendant then grabbed a towel and cleaned her. He went to the shower to turn on the water and said he wanted to bathe her. Doe stated that she went out to the living room with her pants down and dialed 9-1-1 but defendant interrupted the call before she spoke with a dispatcher. Doe ran to the bathroom and the girls ran in behind her, the phone rang, Doe heard defendant saying that everything was fine. Doe began screaming for help.
The audiotape of the 9-1-1 conversation between defendant and the police dispatcher was played at trial.
Police arrived quickly and an officer went to the bathroom and spoke with Doe. Doe told the officer that she had a problem with defendant and showed the marks on her thighs. She was taken to the police department and then for an examination at a Salinas hospital.
On cross-examination, Doe admitted that she was then currently pregnant and the father was Armando Translavinia, her boyfriend. She and Armando had worked for Cream of the Crop. Armando Translavinia was the son of Minnie Translavinia, her supervisor at the Cream of the Crop, and he lived with his mother. Doe admitted that, prior to June 24, she had told defendant Armando was the love of her life.
Doe acknowledged that on June 23, 2000, the day before the incident with which defendant was charged, she was at the Translavinias house. At first she indicated that she had been there "just for a moment" but later admitted she had been there for three hours. According to Doe, she went there to see Armandos mom.
When Doe arrived home on June 23, she found the police at her apartment. The police told her that defendant had said she had left her two daughters by themselves. Doe testified that she had not left them alone that night and defendant had taken them out to dinner. She recalled that she had been angry and upset because defendant had lied. She admitted that she did not mention to police that defendant no longer lived there.
Doe denied that she and her husband agreed to live together until the divorce was final. However, she acknowledged that she may have told a police officer that she and defendant were going to live together until the divorce was final but could not recall. She admitted that a few days before June 24 she yelled at defendant "to sign the papers and get out of the apartment." She also admitted that she told defendant to leave on numerous occasions in the weeks prior to June 24 and she told him that she was "going to get an order to get him out for good."
Following the alleged incident, Doe applied for a restraining order against defendant.
George Luna, an officer with the King City Police Department, testified that he went to Does apartment on June 24, 2001. Initially, the call was a "911 hang up." En route, Officer Luna learned from the dispatcher that, when the dispatcher had called back, a Spanish speaking male answered and the dispatcher could hear a female screaming in the background before the man hung up.
Officer Luna testified that, while outside the door to the apartment, he could hear crying and yelling. Officer Luna knocked and defendant greeted him and immediately said everything was fine. The officer entered with defendants consent and found Doe crying in the bathroom and her small children crying at the door of the bathroom. Doe stated that "her husband had taken advantage of her."
Officer Luna spoke briefly with Doe in the bathroom while defendant and the girls waited in the living room. Doe pulled down her pants and said, "Look at what he did to me." Officer Luna saw "what appeared to be claw marks or red marks on the inside of her thighs . . . ." Doe "kept crying hysterically" and saying "he took advantage of me." Defendant and Doe began to yell back and forth and the officer thought they should be separated.
Both defendant and Doe consented to go to the police department to give full statements. Officer Luna transported Doe while his partner transported defendant.
Alejandrina Tirado, an officer with the King City Police Department, testified that she met with Doe at the police department. She comforted Doe "because she was crying when I got there and pretty shooken [sic] up . . . ." She explained the SART procedure and told Doe that a doctor would be examining her and checking her for external and internal injuries.
Sheree Nash, a sexual assault nurse examiner, testified that she examined defendant. Defendant had small superficial abrasions, fresh little scrapes, on both elbows. Nash noted in her report that defendant was calm, cooperative, and quiet.
Michael Rivera, an officer with the King City Police Department, testified that he was called to an apartment on March 3, 2001 and met with defendant. Defendant had called police because he had come home and found his children at a babysitters, he wanted to know where his wife had been that day, and she had refused to tell him. Defendant had told Officer Rivera that his wife had threatened him before March 3 by saying she would kill him but defendant had also said that it was not a credible threat. Officer Rivera testified that Doe had told him she was willing to leave the residence and she did leave.
Joanne Shiffman, a registered nurse, testified that she was a sexual assault nurse examiner. She performed a SART examination of Doe on June 24, 2001. She described Doe as tearful, shaken, and "obviously disturbed" but cooperative. Doe told Shiffman that "she was sexually assaulted by her husband in the bathroom of her residence" while she was "standing up against the wall in the bathroom." Doe told her that her husband had penetrated her vagina with his penis two to three times by force. Specifically, Doe said that he had grabbed her by her wrists and "held the right arm over her head" and "managed to twist her left wrist behind her back . . . ." Doe had said that he had held her against the bathroom wall. Doe had indicated that he had hit her with his elbows.
Shiffman testified that Doe complained of lower abdominal pain and pelvic pain. Shiffman noted a number of fresh external injuries on Doe, specifically, reddened areas over her kneecaps, bruising on the inner portion of her left thigh, bruising on the left upper portion of her scapula, bruising on her right lower back, which was consistent with being pushed up against something, bruising on her left elbow and slightly below her right elbow, and bruising from pressure against the left pubic bone. During the internal pelvic examination, Shiffman saw a superficial tear of the mucosal wall. Shiffman opined that the physical findings were consistent with Does story and the history Doe had given. However, Shiffman acknowledged that women can sustain lacerations or abrasions during consensual sex and supposed it was possible that the physical pressure marks on Doe could have been sustained during consensual sex.
Defendant produced witnesses who opined that defendant did not have the character of someone who would commit violence or sexual assault. Rene Quintana, defendants nephew who had lived with defendant and Doe for approximately one year, testified that Doe had gotten angry sometimes and shouted at defendant. According to Quintana, defendant would let Doe have her way when she became angry. He had not heard defendant yelling at Doe and had never seen defendant hit Doe.
Richard Lee, a licensed private investigator, testified that he spoke with Doe on July 28, 2001 and August 21, 2001. Her account at those times, which Lee recounted in part, was not entirely consistent with her testimony at trial. Lee acknowledged that Doe had become emotional and cried on July 28, 2001.
Immediately before the parties rested, the court advised defendant: "You understand you dont have to testify and you have a right not to testify, but you also have a right to testify if you want to." The court asked, "You have discussed this matter with your attorney and youre making an informed decision not to testify; is that correct?" The defendant answered, "Yes."
During argument, defense counsel pointed out the inconsistencies in Does testimony, Does motivation to have defendant out of the house and obtain a divorce because of an extramarital relationship, the lack of wounds found on defendant to show Doe had struggled against him, and the SART nurses testimony did not rule out consensual sex. The court stated: "I dont know what the theory of your case is, that she made up the whole thing and . . . it was all fabricated to get him out of there or that he had consensual sex with her . . . but theres no evidence of any consensual sex because theres been no testimony as to that." Defense counsel indicated that there could have been consensual sex based on the physical findings. The court stated: "Theres no testimony of consensual sex whatsoever. No one testified that it was consensual. Shes the only one who testified as to what happened there and she says it was forcible." Defense counsel responded in part that Does description of the act or the injuries were not necessarily inconsistent with consensual sex and Doe lacked credibility. The court took the matter under submission.
In announcing its guilty verdict, the court indicated that it found Doe to be a credible witness and noted there was no impeachment evidence. Specifically the court stated: "I took and considered all of the evidence that was presented. And we had the unimpeached testimony of the victim about what occurred, and there was no other evidence presented that it did not occur the way the victim said it did. The injuries were consistent with forcible intercourse but they were also consistent with consensual intercourse in that she was not beaten and battered to such an extent, that it could have been consistent with it not occurring or consistent with it occurring. But we have the phone call that was made by the victim and the conduct of the defendant in trying to keep the police from coming there, the immediate report, and there were some inconsistencies with what the victim said but not drastic inconsistencies, and we see inconsistencies frequently. I found the victim to be a credible witness. Thats not to say that I reached the decision without some concerns. If this were a jury, probably the jury would have deliberated for a couple days before reaching a conclusion. [P] There was testimony about forcible sexual intercourse while holding her hands and standing up. That caused some concerns in my mind. The victim had a motive to make a false report because of the divorce proceedings which was erupting and a possible friend that shes now involved with but we dont know whether she was involved with then. I also personally found it unusual that, with the defendant making a false police report the night before and obviously everybody upset and then allowing the defendant to come over and him being there for several hours in a situation that should have been much tenser. And frankly the demeanor of the victim was that she was not dominated by the defendant in the relationship. She seemed assertive enough. [P] But having said all that, there is nothing to impeach the testimony of the complaining witness that it occurred the way she said. So the Court finds defendant guilty of the 262."
B. Improper Inference of Guilt
Defendant argues that the "courts reasoning, that [Doe] was credible because [defendant] did not testify to contradict her, impermissibly shifted the burden of proof to the defense to refute the prosecutions allegations, and it impermissibly inferred guilt from his silence." He cites Griffin v. California (1965) 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 and Mitchell v. United States (1999) 526 U.S. 314, 143 L. Ed. 2d 424, 119 S. Ct. 1307. The People counter that defendants claim is waived and, moreover, the courts remarks were nothing more than a proper comment on the state of the evidence.
In People v. Hughes (2002) 27 Cal.4th 287, cited by the People, the California Supreme Court initially concluded that defendant had waived his right to complain of Griffin error on appeal by failing to object to the prosecutors comments in closing argument at trial. (Id. at pp. 371-372.) This appeal does not involve a prosecutors allegedly improper remarks in violation of Griffin. The People have not cited any authority applying a waiver rule to a claim that the trier-of-fact actually drew, and the guilty verdict was based on, a constitutionally impermissible inference.
In Griffin v. California, supra, 380 U.S. 609, the U.S. Supreme Court held that "the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accuseds silence or instructions by the court that such silence is evidence of guilt." (Id. at p. 615, fn. omitted; see Malloy v. Hogan (1964) 378 U.S. 1, 6, 12 L. Ed. 2d 653, 84 S. Ct. 1489.) Subsequently, the court stated in Carter v. Kentucky (1981) 450 U.S. 288, 67 L. Ed. 2d 241, 101 S. Ct. 1112, that "the Griffin case stands for the proposition that a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify." (Id . at p. 301.) The court held that a court is constitutionally obligated to instruct, upon request, that no adverse inferences are to be drawn from the exercise of that privilege. (Id. at p. 305.) In Mitchell v. United States, supra, 526 U.S. 314, the U.S. Supreme Court held that, "in determining facts about the crime which bear upon the severity of the sentence," a sentencing court may not draw an adverse inference from the defendants silence. (Id. at pp. 316-317.)
"Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendants failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendants silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]" (People v. Medina (1995) 11 Cal.4th 694, 755, 906 P.2d 2.) "Directing a jurys attention to a defendants failure to testify at trial runs the risk of inviting the jury to consider the defendants silence as evidence of guilt. (Griffin v. California , supra, 380 U.S. at pp. 614-615 [85 S. Ct. at pp. 1232-1233]; People v. Frye, supra, 18 Cal.4th at p. 1019.)" (People v. Lewis (2001) 25 Cal.4th 610, 670.) Thus, a prosecutor commits Griffin error by "referring to evidence as `uncontradicted when the defendant, who elects not to testify, is the only person who could have refuted it. [Citation.] If, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendants privilege against self-incrimination describe the evidence as `unrefuted or `uncontradicted. [Citations.]" (People v. Johnson (1992) 3 Cal.4th 1183, 1229, 842 P.2d 1.)
The courts remarks made during argument, prior to taking the matter under submission, are not necessarily indicative of the courts ultimate reasoning in rendering its decision. The court, in announcing its verdict, noted the lack of impeachment evidence, which could have come from a witness other than defendant, such as a police officer or SART nurse testifying to any inconsistent statements made by Doe regarding the alleged incident. The courts comments at that time essentially concerned Does credibility as a witness and did not directly mention defendants failure to testify. While the courts comments would have been improper if they had been made to a jury because jurors might have interpreted them as an invitation to consider defendants failure to testify, the courts comments are ambiguous in regard to whether the court, sitting as the trier of fact, actually considered defendants failure to testify in assessing Does credibility or making its factual findings.
We, therefore, resort to the well-established principle of appellate review that error must be affirmatively shown on appeal. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal. Rptr. 65, 468 P.2d 193.) We cannot necessarily conclude, based upon the record before us, that the court, sitting as the trier of fact, actually gave any evidentiary weight to defendants silence in evaluating Does credibility, drew an impermissible inference of guilt based on defendants failure to testify, or impermissibly shifted the burden of proof to defendant.
The judgment is affirmed.
WE CONCUR: Premo, Acting P. J., and Bamattre-Manoukian, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.