Opinion
F052405
6-25-2008
THE PEOPLE, Plaintiff and Respondent, v. CHARLOTTE KAY WHELCHEL, Defendant and Appellant.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Charlotte Kay Whelchel was convicted of theft from an elder by a caretaker and grand theft after she stole jewelry from an elderly woman she had been hired to care for. On appeal, she contends (1) insufficient evidence supported the conviction for theft from an elder by a caretaker because there was insufficient evidence defendant was a caretaker; (2) the trial court failed to instruct that being a caretaker was an element of the crime; (3) grand theft is a lesser included offense of theft from an elder; (4) the trial court erred by refusing to allow the defense to present evidence of a witnesss conduct underlying her prior misdemeanors for theft and burglary; (5) the prosecutor committed Griffin error by indirectly commenting on defendants failure to testify; and (6) the cumulative effect of the errors was prejudicial. We will reverse the grand theft conviction, vacate the sentence on the remaining conviction, remand for resentencing, and affirm in all other respects.
Griffin v. California (1965) 380 U.S. 609 (Griffin).
PROCEDURAL SUMMARY
On March 8, 2006, the Fresno County District Attorney charged defendant with felony theft from an elder by a caretaker (Pen. Code, § 368, subd. (e); count 1) and grand theft of personal property (§ 487, subd. (a); count 2).
All statutory references are to the Penal Code unless otherwise noted.
The jury convicted defendant on both counts. The trial court sentenced defendant to the upper term of three years on count 2, and imposed and stayed a three-year sentence on count 1. The court also ordered defendant to pay $60,000 in victim restitution.
FACTS
Doris, a capable 82-year-old, lived alone in her home. She was afraid to stay alone at night so she hired defendant to come to her home at 5:00 p.m. and stay overnight. Defendant split the week with another woman hired to do the same. One of them stayed Monday through Thursday nights, and the other stayed Friday through Sunday nights. Defendant had her own bedroom to stay in. She would sometimes help around the house, with meals and straightening up, although Doris had a separate cleaning lady. One of defendants duties was to sit in Doriss bedroom while Doris showered in the attached bathroom in case she fell or needed some type of assistance.
Doris got along with defendant, considered her a friend and thought she did a good job. Defendant had worked for Doris for about six months before December 20, 2005, the evening of the incident. That evening, defendant was at Doriss house and, at about 6:00 p.m., Doris decided to take a shower. She called defendant into the bedroom and asked her to sit in the bedroom chair while she showered. Defendant complied. Doris took off her two rings — one of which was a beautiful $60,000 diamond ring that she rarely removed — and she placed them in a dish on a stand next to the chair defendant was sitting on. Then Doris undressed and showered.
When Doris got out of the shower 15 or 20 minutes later, defendant was no longer in the chair or in the bedroom, so Doris called out for her. Doris sat down in the chair and looked into the dish to pick up her rings. Her diamond ring was missing, but the other ring was still in the dish. When defendant returned to the bedroom, Doris told her the diamond ring was missing. Defendant said, "`Oh really, ... What happened?" Doris said she did not know. Defendant suggested they look around for the diamond ring because maybe Doris dropped it or maybe it fell under the chair. Doris told her she had placed it in the dish. She was absolutely sure she had placed the two rings in the dish. They looked for the diamond ring, but did not find it. Defendant suggested that Doris call the police.
Doris called her son, who called the police and his wife, Sandra. Sandra was in the vicinity with three friends, Denna, Desiree and Vickey. The women had been together at a drug and alcohol recovery meeting. Sandra had been clean and sober for 18 years. The three women volunteered to accompany Sandra, so they all immediately went to Doriss house. Denna and Desiree had never been to Doriss house before that night. When the women arrived, they went directly to Doriss room and found the chair overturned and defendant on her hands and knees. Doris was in the room, also looking for the ring. She was upset and tried to explain to Sandra where she had placed the ring. In the 10 years Sandra had known Doris, she had never seen Doris without the ring; she had seen Doris remove it only to show it to someone. After some discussion between Sandra and Doris, Sandra and her friends started looking for the ring. According to Sandra, she and her friends stayed together at all times. Denna remembered that she and Desiree stayed together as they searched around the house.
Eventually, Sandra went into defendants room and saw her open purse sitting on the bed. Denna followed Sandra into the room. Defendant told them they could look through her things because she did not have anything to hide. Sandra looked inside defendants open purse and saw an aquamarine ring and some other jewelry. Defendant said the rings were hers. But then Doris approached and identified the aquamarine ring as hers. Defendant said nothing. To prove the ring was hers, Doris got the matching necklace and explained where she had gotten them. The aquamarine ring was worth about $2,000. Sandra also recognized the jewelry as Doriss. At that point, Sandra called the police again and told them to hurry because they had found some of Doriss jewelry in defendants purse.
The tension in the house was mounting. The women did not allow defendant to leave. They all went into the living room and waited for the police. Defendant seemed nervous.
The police arrived five or ten minutes later. Officers Jouroyan and Preston were dispatched to Doriss house in response to a report that property had been stolen by a caretaker in the home. When Officer Jouroyan arrived, he saw defendant outside on the back patio. She was seated, smoking a cigarette. Another woman was with her. The officer went inside and spoke to Doris. A few minutes later, he went outside to the patio area. Defendant had moved near the white security gate on the side of the kitchen wall and the garage area. A large bush was nearby and defendant was standing about four feet from the bush. Officer Jouroyan could not recall whether defendant was alone at this point.
As the police were preparing to leave with defendant, who was handcuffed, Denna and Vickey found a floral makeup bag in the large bush and they started yelling. The makeup bag matched a toiletry bag Sandra had seen on the bed in defendants room. The makeup bag contained thousands of dollars worth of Doriss jewelry that she kept in a chest. At trial, Sandra could not remember if she pointed out to the police that she had seen a matching bag in defendants room. Denna did not remember seeing the matching bag in defendants room.
Denna testified that she had a criminal past. In 2002, she was convicted of felony petty theft with a prior misdemeanor theft (§ 666). In 2003, she was convicted of felony altering or forging a prescription (Health & Saf. Code, § 11368). She once had a drug problem, but she had been sober for three years. She met Sandra through their recovery meetings.
Denna testified that, when searching for the diamond ring, she used her own criminal experience of taking drugs and stealing things to try to think of places someone might hide the ring after stealing it. She looked in vases and other places. She went outside and looked around the bushes and next to rocks.
Defense Evidence
Officer Preston arrived at the house at 7:49 p.m. and was met at the door by Sandra. Doris told him she discovered her ring was missing at about 6:00 p.m. At about 6:30, Sandra and her friends arrived.
After defendant was taken into custody, she was searched by a female officer. Officer Preston looked in every room of Doriss house. The diamond ring was never found.
It was not until the officers were finishing the investigation and taking defendant to the patrol vehicle that some of the women found the makeup bag outside. Officer Preston did not remember seeing a matching bag when he was searching the house earlier, but he believed he probably would not have recognized it as a matching bag at the time because the makeup bag had not yet been found in the bushes. He did not recall whether anyone directed his attention to the matching bag. When he asked Doris if she knew whose makeup bag it was, she "adamantly or specifically" identified it as defendants.
On cross-examination, Officer Preston testified that the officers searched defendant, but did not search any of the other women. There was no reason to search anyone other than defendant because the diamond ring went missing before anyone else arrived at the home. Only defendant and Doris were present at the time. The officers did not detain or arrest anyone other than defendant.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends there was insufficient evidence she was a caretaker, an element of section 368, subdivision (e). The argument is meritless.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless `"upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (People v. Bolin, supra, at p. 331.)
Section 368, subdivision (i) defines a caretaker, as "any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult." Inexplicably, defendant concludes without the benefit of any analysis that she "`plainly" did not have "`custody" or "`control" of, or a "`position of trust" with Doris, and therefore the question is whether she had "`care" of Doris. We disagree. There was overwhelming evidence defendant was in a position of trust with Doris. There are few positions requiring more trust than the care of a vulnerable elderly woman living alone in todays world. Defendants statement to the contrary is simply offensive. Defendant was entrusted with Doriss safety and well-being. Defendant was hired to stay with Doris during the night and to protect her personal safety while she showered. Doris undoubtedly recognized, as does any reasonable senior citizen, that she was the most vulnerable at these times. Furthermore, defendant stayed in Doriss home amidst her personal property and treasured valuables and became a trusted part of the household. All that is required is that defendant was "a person in whom [Doris] reposed trust and confidence." (People v. Franklin (1994) 25 Cal.App.4th 328, 338.)
II. Failure to Instruct on Caretaker Element
Defendant correctly points out that the trial court failed to instruct on the caretaker element. Upon review of the record, we find other inconsistencies as well, but we conclude the instructional omission was harmless.
A. Facts
The information charged count 1 as follows:
"On or about December 20, 2005, ... the crime of THEFT FROM ELDER OR DEPENDENT ADULT BY A CARETAKER, in violation of PENAL CODE SECTION 368(e), a felony, was committed by [defendant], who being a caretaker, committed theft and embezzlement with respect to the property of an elder and dependent adult, said property having a value exceeding $400.00, and knew and reasonably should have known that said person, Doris Thomas, was an elder and dependent adult." (Italics added.)
This language did not accurately track section 368, subdivision (e), which does not include the knowledge element. It states:
"Any caretaker of an elder or a dependent adult who violates any provision of law proscribing theft, embezzlement, forgery, or fraud ... with respect to the property ... of that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400), and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400)." (Italics added.)
Subdivision (d) of the same section, however, includes the knowledge element, but not the caretaker element. Thus, if the person is not a caretaker, she must know or have reason to know that the person she is victimizing is an elder or a dependent adult. (Apparently, that knowledge is presumed when the person is a caretaker.) Otherwise, the two subdivisions are identical. Subdivision (d) states:
"Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud ... with respect to the property ... of an elder or a dependent adult, and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400); and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400)."
The informations charge on count 1 inaccurately tracked the language of the knowledge element (that should not be there in the first place) by using the conjunctive rather than the disjunctive, stating that defendant knew or reasonably should have known that Doris was an elder and a dependent adult. This rendition is a statutory impossibility because the statute defines an elder as "any person who is 65 years of age or older" and a dependent adult as "any person who is between the ages of 18 and 64, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights ...." (§ 638, subds. (g) & (h).)
In other words, the information is no model of pleading. But, because it charged a violation of subdivision (e), plus an extra element (knowledge), it did fully encompass the elements of a subdivision (e) violation.
The courts instruction, on the other hand, tracked the language of a subdivision (d) violation. The court instructed with "<Alternative 4A—defendant not caretaker>" of CALCRIM No. 1807 by choosing the following phrase: "The defendant knew or reasonably should have known that the owner of the property was an elder." The following phrases were blacked out and omitted from the instruction: "<Alternative 4B—defendant caretaker>" and "The defendant was a caretaker of the (elder/dependent adult)." Thus the instruction omitted the caretaker element and included the knowledge element, as follows:
"The defendant is charged in Count One with a theft of property from an elder. To prove that the defendant is guilty of this crime, the People must prove that one, the defendant committed theft; 2, the property taken was owned by an elder; 3, the property[,] goods or services obtained was worth more than $400[;] and 4, the defendant knew or reasonably should have known that the owner of the property was an elder. To decide whether the defendant committed theft, please refer to the separate instructions that I have given you on that crime. An elder is someone who is at least 65 years old. Property includes money, paper or real or personal property." (Italics added.)
As expected, the court did not instruct on the definition of a caretaker.
We cannot explain or even examine why the court, the prosecutor and defense counsel apparently agreed on this instruction (the instruction conference was held off the record). Nevertheless, there is no suggestion in the record that either party objected to this instruction.
The verdict forms, like the information, described the offense as "THEFT FROM ELDER OR DEPENDENT ADULT BY A CARETAKER."
B. Analysis
A jury instruction that omits an element of an offense requires reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 503.) If no rational jury could have found the missing element unproven, the error is harmless beyond a reasonable doubt. (People v. Ortiz (2002) 101 Cal.App.4th 410, 416.)
At trial, there was no factual dispute over defendants status, and the undisputed evidence established that she was a caretaker. As explained above, defendant held a position of trust with Doris. There was no evidence to contradict this fact and no effort by the defense to argue otherwise. In fact, defense counsel referred to defendant as a "home health care provider" and a "care provider," terms that connote a caretaker role. Furthermore, the information and the verdict forms described the offense as being committed by a caretaker. Based on the record before us, we conclude that had the instruction properly set out all elements of the offense, no rational jury could have found that defendant was not a caretaker. The courts failure to instruct on the caretaker element was harmless beyond a reasonable doubt.
The fact that the instruction contained the extra element of knowledge was harmless.
III. Lesser Included Offense
Defendant contends, and the People concede, that the conviction on count 2 must be reversed because grand theft is a lesser included offense of theft from an elder by a caretaker. We agree and accept the concession.
"[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.) A defendant may not be convicted of both a greater and a lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) "Courts should consider ... only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (People v. Reed (2006) 38 Cal.4th 1224, 1231.)
Under section 368, subdivision (e), a caretakers theft from an elder expressly incorporates as an element of the offense a violation of "any provision of law proscribing theft, embezzlement, forgery, or fraud," the theft being petty or grand depending on the amount taken. Section 487, subdivision (a) provides: "Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400)." Therefore, defendant could not have committed grand theft from Doris, an elderly person, in violation of section 368, subdivision (e) without also committing grand theft in violation of section 487, subdivision (a). Because defendant was convicted of both the greater offense of grand theft from an elder and the lesser included offense of grand theft, her conviction of the latter must be reversed. (People v. Pearson, supra, 42 Cal.3d at p. 355.) In addition, because the trial court designated the sentence on grand theft (count 2) the principle sentence and stayed the sentence on count 1 pursuant to section 654, we must remand for resentencing on count 1.
IV. Exclusion of Witnesss Conduct Underlying Prior Misdemeanors
Defendant argues the trial court erred by refusing to admit evidence of Dennas conduct underlying five prior misdemeanors. Defendant intended to use the evidence as impeachment and as third-party culpability evidence to show Denna had motive to commit the crimes. Defendant asserts that although the jury was informed that Denna was a thief and a forger, the excluded evidence would have shown that her history of thievery was extensive, that theft was her offense of choice, and that she was also a burglar. Defendant contends the alleged error violated her Sixth Amendment right to confront and cross-examine witnesses and her due process right to a meaningful opportunity to present a complete defense. We conclude any error was harmless under any standard. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
At trial, defense counsel argued for admission of the evidence, as follows:
"The defenses theory of the case obviously is that someone else took [Doriss] ring. [Denna] was in the house during the time that the ring went missing and her prior history of theft-related offenses is relevant to the jury in determining both a motive to commit the crime and to determining her credibility as a witness so we would ask the court to allow us to go into those 3 prior convictions, actually 3 prior cases with a total of 5 separate misdemeanor convictions for theft[-]related[ ] offenses."
Defense counsel described the offenses he wished to introduce as misdemeanor theft of personal property in 1990; second degree burglary, petty theft with a prior, and petty theft in 1999; and petty theft with a prior (at an unknown date).
"We review for abuse of discretion a trial courts rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 230.) "Under this standard, a trial courts ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
"The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), `and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) [Citation.] `The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citation.] In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witnesss character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; [the witnesss] attitude toward the action in which he testifies or toward the giving of testimony; and [the witnesss] admission of untruthfulness. (Evid. Code, § 780.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the courts discretion under Evidence Code section 352. [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 337; see People v. Castro (1985) 38 Cal. 3d 301, 315 [crimes revealing a witnesss dishonesty, general readiness to do evil, bad character, or moral depravity involve moral turpitude; a witnesss moral depravity of any kind has some tendency in reason to shake ones confidence in his honesty]; People v. Hunt (1985) 169 Cal.App.3d 668, 674-675 [auto theft involves intentional dishonesty for purpose of personal gain; therefore moral turpitude is involved].)
However, evidence of prior criminal conduct offered merely to show that a third party was more likely to be the perpetrator of the current crimes is generally inadmissible. (Evid. Code, § 1101, subd. (a); People v. Davis (1995) 10 Cal.4th 463, 501; People v. Farmer (1989) 47 Cal.3d 888, 921, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 .) An exception is where prior conduct evidence is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than [the actors] disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) These rules apply to evidence raising the inference of third party culpability. (People v. Davis, at pp. 500-501; People v. Farmer, at p. 921.)
In Davis, the Supreme Court held that evidence offered to show that a third party was more likely the perpetrator of the charged murder because he had a history of violence was properly excluded under Evidence Code section 1101, subdivision (a) because it was not offered to show a fact other than the third partys criminal disposition. (People v. Davis, supra, 10 Cal.4th at p. 501.) "Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) The same is true here. "[T]he proposed evidence did not relate to motive ... but was essentially an attempt to show that [Denna] was more likely to have been the [thief] because [she] had a history of [stealing]." (Ibid.) The evidence was therefore properly excluded under Evidence Code section 1101.
As for admission of the evidence to impeach Dennas credibility, assuming the evidence was admissible under Evidence Code section 352 (and assuming the claim was preserved for appeal), we nevertheless conclude exclusion of the evidence was harmless under any standard. (Evid. Code, § 354 [error in the exclusion of evidence requires reversal only if it led to a miscarriage of justice]; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [as a general matter, application of the ordinary rules of evidence does not impermissibly infringe on a defendants right to present a defense; proper standard is Watson, not Chapman]; People v. Benavides (2005) 35 Cal.4th 69, 91 [generally, violations of state evidentiary rules do not rise to the level of federal constitutional error]; People v. Hawthorne (1992) 4 Cal.4th 43, 58 [completely excluding evidence of defendants defense could impair his constitutional right to due process].)
In other words, its admission would not have involved undue time consumption, confusion, or prejudice that would have substantially outweighed its probative value. (Evid. Code, § 352.)
First, the evidence against defendant was overwhelming. It was undisputed that no one but defendant was present in the house with Doris when the ring disappeared. Doris knew exactly where she placed the two rings, and the one worth $60,000 disappeared while she was in the shower and while defendant was in the bedroom sitting next to the rings. The defense theory — that Denna or one of the other three women who arrived later took advantage of the situation by stumbling upon the fortuitously and inexplicably lost ring, and framing defendant for the crime by planting other jewelry belonging to Doris in defendants purse, and by planting even more of Doriss jewelry in defendants makeup bag and hiding it outside under a bush near which defendant had been standing, which bag was discovered later by Denna herself (who as the perpetrator could have gotten away with that jewelry as well as the ring), just as the police were leaving with defendant, who was already successfully framed and arrested for the crime — was entirely implausible. Evidence that Denna had committed more theft offenses in the past would not have altered the state of the evidence against defendant or significantly bolstered the defense theory implicating Denna.
Second, the prosecution did introduce evidence of Dennas criminal past by inquiring about her felony convictions. She admitted having "previous run-ins with the law." The jurors learned that in 2002, she was convicted of felony petty theft with a prior, meaning she also had some sort of previous misdemeanor theft; and in 2003, she was convicted of felony forging of a prescription. She also testified that she previously had a drug problem, but had been sober for three years and was involved in a recovery program, which is how she met Sandra and why she accompanied her to the house. Denna also testified that when she was looking for the ring, she used her own background of "drugs and stealing" to try to imagine where a thief would hide the stolen ring. Because the jurors already knew Denna had committed two thefts and one forgery, her credibility was already impeached. Any cross-examination regarding her other theft conduct would not have produced a significantly different impression of her credibility. Furthermore, even if it had and the jurors had disbelieved her testimony in its entirety, the testimony of other witnesses amply established an overwhelming case against defendant. Finally, defendant was not precluded in any way from developing her defense that Denna had been a thief and had the opportunity to steal Doriss ring.
In sum, we are confident that, had the jurors heard evidence that Denna had committed other acts of thievery and burglary in her past, they would not have concluded that Denna or anyone else other than defendant stole the ring. Any error in excluding the evidence was harmless beyond a reasonable doubt.
V. Comments on Defendants Failure to Testify
Defendant contends the prosecutor indirectly commented on her failure to testify, particularly by pointing out that the prosecution witnesses "took the stand ... they faced the music." (See Griffin, supra, 380 U.S. 609.) We agree the comments may have constituted error, but we conclude any error was harmless.
During the prosecutors rebuttal argument, the following occurred:
"[PROSECUTOR]: "I think its important for the people that did testify, they took the stand, they faced the music and testified and they werent — it was never pointed out that oh — [¶] ... [¶]
"[DEFENSE COUNSEL]: Objection, your Honor. Its Griffin error[.] Mr. [Prosecutor is] commenting on the defendants decision not to testify.
"[PROSECUTOR]: No, Im not, Im commenting on the [three witnesses] that took the stand, I said they faced the music and they testified.
"[DEFENSE COUNSEL]: Its implicit.
"THE COURT: I think it is implicit. Sustained.
"[PROSECUTOR]: Well, lets look at the state of evidence. Certainly defense counsel gave a wonderful closing argument[.] [W]e learned a lot [] about Neuro and Sherlock and quotes and whatnot. What we didnt learn about was evidence. Now he certainly is a very capable attorney, certainly he could persuade you that water isnt wet and quite frankly he has the absolute same right to produce evidence when he says hes under no obligation but you can bet if he had a witness or had
"[DEFENSE COUNSEL]: Objection. Same objection.
"THE COURT: Sustained.
"[PROSECUTOR]: Its the state of the evidence. You can argue the [s]tate of the evidence and failure to produce evidence.
"THE COURT: The defense has no obligation to produce anything.
"[PROSECUTOR]: Correct.
"THE COURT: Go ahead.
"[PROSECUTOR]: Right.
"THE COURT: Continue.
"[PROSECUTOR]: So in any event, the defense in this case is simply that [defendant] was a [p]atsy, that she was framed and that she was set up. That defense is completely unreasonable. Theres absolutely nothing to suggest thats true. The fact is that Sandra and her friends fortuitously hear about whats happening at the house, they think theyre going to get there and steal the ring before its found, come upon it while its already been searched [for] for a while? That ring was stolen, that ring was gone, it was not to be found. Now, counsel says its missing. Well its not missing. [Defendant] stole it, she took it. She removed it from the home and got away with it. Thats up to you ultimately to decide if she really truly got away with it." (Italics added.)
Later, the prosecutor made the following statement, without objection from the defense:
"Denna as well you have to accept her credibility. She came forward, knowing full well she was going to be asked about her history, she faced the music, stood up and testified, told you about the events that happened and she herself, other than of course her history you can impeach her with, but she herself wasnt shown to say one thing on one occasion and then [say] another, never caught in a lie, not impeached otherwise, she was credible, she told you what happened and what she found and why she found it...." (Italics added.)
Under Griffin, it is error for a prosecutor to comment on a defendants failure to testify in her own defense. (Griffin, supra, 380 U.S. at p. 615; People v. Medina (1995) 11 Cal.4th 694, 755.) It is obvious error when the prosecutor directly comments on the defendants silence. (E.g., Griffin, supra, at p. 611 [prosecutor referred to things defendant had not seen fit to take the stand and deny or explain]; People v. Hardy (1992) 2 Cal.4th 86, 154 [prosecutor told jurors they should ask themselves why defendant did not come out and say, "`I didnt do it, it was Cliff"].) But it is also error when the prosecutor indirectly comments on the defendants silence. Thus, for example, "it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] ... [I]t is error for the prosecution to refer to the absence of evidence that only the defendants testimony could provide." (People v. Hughes (2002) 27 Cal.4th 287, 371-372; see, e.g., People v. Vargas (1973) 9 Cal.3d 470, 474, 476 [prosecutors comment that there had been no denial that defendant was at scene of crime improper because only defendant himself could deny his presence at the crime scene]; People v. Modesto (1967) 66 Cal.2d 695, 711 [prosecutor stated defendant was only person who could explain presence of blood found on his person, and he was just sitting in courtroom], disapproved on another ground in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8; People v. Medina (1974) 41 Cal.App.3d 438, 457-460 [prosecutor pointed out there were five witnesses to crime, including the two defendants, and only three of them were put under oath and subjected to cross-examination].) Also, it is error for the prosecutor to make comments suggesting, for example, that the defendant is not responsible enough to testify. (E.g., People v. Guzman (2000) 80 Cal.App.4th 1282, 1286-1287 [prosecutor pointed out that the victim behaved more responsibly than defendant by waiting for police, telling them what happened, coming to court to testify, subjecting himself to cross-examination more than once, and putting himself under oath].)
But comments that merely refer to the absence of defense evidence or the defendants failure to present obvious evidence do not constitute Griffin error. "It is well established ... 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, supra, 11 Cal.4th at p. 755-756 [prosecutors comments that defense failure to provide rational explanation for why defendant was armed was a remark on the evidence, not on defendants silence]; People v. Brown (2003) 31 Cal.4th 518, 554 [prosecutor directed jurys attention to fact that defendant never presented evidence he was somewhere else when the crime was committed]; People v. Hughes, supra, 27 Cal.4th at p. 373 [prosecutor asked jury where was the evidence to support the defense]; People v. Bradford (1997) 15 Cal.4th 1229, 1339 [prosecutor noted absence of evidence contradicting what was produced by prosecution on several points, and the failure of defense to introduce material evidence or any alibi witnesses]; People v. Johnson (1989) 47 Cal.3d 1194, 1236 [prosecutor said, "`Obviously, if there has been or is some defense to this case, youd either have heard it by now or for some reason nobodys talking about it"].)
Furthermore, "`brief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 419-420.) "[A] prosecutor may `neither comment on a defendants failure to testify nor urge the jury to infer guilt from such silence. [Citation.] Thus, prosecutors must walk a fine line when treading in this area. A prosecutor may call attention to the defenses failure to put on exculpatory evidence, but only if those comments are not aimed at the defendants failure to testify and are not of such a character that the jury would naturally and necessarily interpret them to be a comment on the failure to testify. [Citation.]" (People v. Guzman, supra, 80 Cal.App.4th at p. 1289.)
Griffin error requires reversal unless it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at pp. 24-26; People v. Brasure (2008) 42 Cal.4th 1037, 1060.) "[I]n the context of a violation of a constitutional right, the state must do more than point to evidence supporting the jurys verdict. It must demonstrate beyond a reasonable doubt that the error did not contribute in any way to the defendants conviction. [Citation.] This can be achieved when the evidence of guilt is overwhelming and the constitutional error is minor." (People v. Guzman, supra, 80 Cal.App.4th at p. 1290 [remarks not harmless where jurys acquittal on one count indicated doubts about victims credibility, and prosecutor relentlessly insisted to jurors that they consider contrast between victims testimony and defendants silence].)
In this case, we believe the prosecutors comments, especially about the "people that did testify," who "took the stand" and "faced the music," did suggest by comparison that defendant was not willing to take the stand and face the responsibility of testifying. We nevertheless conclude that any violation of Griffin in this case was harmless beyond a reasonable doubt in light of the brevity of the references, defense counsels objections, the trial courts response, the trial courts instruction to the jury not to draw any inference from the defendants failure to testify and the strength of the case against defendant. (See United States v. Hasting (1983) 461 U.S. 499 [Griffin error subject to Chapman standard]; People v. Medina, supra, 11 Cal.4th at p. 756 [acknowledging that most indirect Griffin error is harmless in any event]; People v. Vargas, supra, 9 Cal.3d at pp. 478-481 [same].)
The trial court instructed the jury with CALCRIM No. 355, as follows: "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."
We note that the jury deliberated only one hour and 15 minutes.
VI. Cumulative Error
Defendant lastly maintains that the cumulative effect of the errors deprived her of a fair trial. Considering the strength of the case against defendant and the weakness of her defense, we conclude the cumulative effect of any errors was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
DISPOSITION
The grand theft conviction (count 2) is reversed. The stayed sentence on count 1 is vacated. The matter is remanded for resentencing. The judgment is affirmed in all other respects. A copy of the corrected abstract of judgment reflecting the new sentence is to be forwarded to the Department of Corrections.
WE CONCUR:
Cornell, Acting P.J.
Gomes, J.