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People v. Wong

Court of Appeal of California
Sep 29, 2008
No. B201322 (Cal. Ct. App. Sep. 29, 2008)

Opinion

B201322

9-29-2008

THE PEOPLE, Plaintiff and Respondent, v. PABLO WONG, Defendant and Appellant.

Leslie G. McMurray, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


A jury convicted Pablo Wong (appellant) of transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)) (count 1), battery with injury on a police officer (Pen. Code § 243, subd. (c)(2)) (count 2), and possession of heroin (Health & Saf. Code, § 11350, subd. (a)) (count 4). Appellant admitted one prior robbery conviction within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). He admitted a prior narcotics conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). He also admitted four prison-prior allegations within the meaning of Penal Code section 667.5, subdivision (b).

The trial court sentenced appellant to a total prison term of 13 years. In count 1, the trial court imposed the upper term of five years, doubled to 10 years pursuant to Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The court imposed three consecutive years pursuant to Health and Safety Code section 11370.2, subdivision (a). The trial court sentenced appellant to midterms of two years in counts 2 and 4, to be served concurrently. The trial court struck the prison-prior enhancements.

Appellant appeals on the grounds that: (1) this court is requested to independently review the sealed transcript of the in camera examination of the police personnel records; (2) the trial court erred in refusing to permit defense witness Lary Kennedy to testify; and (3) the trial court erred in not declaring a mistrial for error.

FACTS

Prosecution Evidence

On the afternoon of June 3, 2006, Officer Ammon Williams and his partner, Officer Deshay, of the Los Angeles Police Department were sitting in an unmarked car in North Hollywood. Officer Williams was working undercover and was wearing a T-shirt and jeans. Officer Deshay was also in plainclothes. Officer Williams had been conducting general surveillance of appellant, and he saw him that afternoon.

Two other officers—Brandy Arzate and Jason Wagner—were part of the undercover surveillance team. They were also sitting in unmarked cars and wearing plainclothes. Officers Arzate and Wagner were in radio contact with Officers Williams and Deshay.

Officer Williams testified at appellants trial that he saw appellant with a woman in the parking area of a residence. They were standing next to a red Mitsubishi pickup truck with a shell. Appellant entered the drivers side of the truck and the woman entered the passenger side. Officer Williams saw that appellant appeared to be moving things around inside the truck. Appellant then started the truck and drove for a distance of a few yards before stopping on Tujunga Boulevard. Officer Williams remained in his car, about 45 yards away from appellant.

Officer Williams observed a male Hispanic walk from the sidewalk to the drivers side of appellants truck with money in his hand. The male Hispanic passed money through the drivers window and spoke with appellant. The man received something in his hand, and it appeared to come from appellant. The man examined his hand before walking away. Based on his experience in investigating narcotics-related offenses, Officer Williams believed that appellant had conducted a narcotics transaction.

Appellant drove northbound on Tujunga, and Officer Williams followed. He followed appellant to a used car lot that was located approximately two blocks away from appellants prior stop. The woman got out of the truck, and Officer Williams told Officer Deshay to contact her. Officer Deshay detained her, and Officer Williams went to the drivers side of the truck after having radioed Officers Arzate and Wagner, who were following at a short distance.

Officer Williams decided to contact appellant because of the narcotics transaction and also because he knew appellant had a misdemeanor warrant for his arrest. Officer Williams was wearing his police badge on a chain around his neck as he approached the truck. Officer Williams saw appellant sitting in the truck with the drivers side door open. Officer Williams told appellant he was a police officer, asked him to step out of the vehicle, and said he needed to talk to him. Appellant asked Officer Williams why he needed to talk to him, and the officer replied that appellant had a warrant for his arrest. At that point, appellant reached down between his legs with his left hand, grabbed some folded dollar bills, and moved his hand toward his mouth. Officer Williams took hold of appellants left wrist and arm to prevent him from swallowing the money and to attempt to bring appellant out of the truck.

Officer Williams told appellant to stop resisting and to step out of the truck. Appellant tried to bite the officers hand by pulling his own arm towards his face and bending his head towards Officer Williams with his mouth open. Officer Williams pulled on appellants arm to bring it away from his mouth and tried to pull appellant out of the truck, but appellant prevented this by gripping the steering wheel. Officer Williams continued to tell appellant to stop resisting, and appellant kept holding on to the steering wheel while trying to pull himself back into the truck and to pull his hand towards his mouth. Appellant then let go of the steering wheel and tried to reach under the bench seat of the truck. Officer Williams was then able to pull appellant out and away from the truck.

Officers Arzate and Wagner came to the assistance of Officer Williams when they saw that he was struggling with appellant. They both identified themselves orally to appellant as police officers. Officer Wagner lifted up his shirt to display his gun and badge. Officer Arzate had her badge clearly displayed on her belt. Officer Williams was telling appellant to stop resisting and that he had a warrant, but appellant continued to try to pull away his arm. Officer Wagner went to appellants right side and grabbed his arm. The officers struggled with appellant, telling him to stop resisting, but appellant continued to struggle. Officer Williams "kneed" appellant in the leg so as to get him down to the ground. Appellant said, "So thats how its going to be?" Appellant then intensified his resistance. Officer Arzate managed to place a handcuff around appellants right arm, but appellant kicked backwards at the officer and struck her on the shin numerous times. Appellant kicked backwards many times and hit Officer Wagner in the shins, knees, and groin. Officer Williams kicked the back of appellants leg behind the knee to cause the leg to buckle. Appellant fell forward with Officer Williams holding onto his arm, and Officer Wagner went down with appellant.

Once on the ground, appellant continued to struggle and thrash around while the officers told him to stop resisting. Appellant tried once again to put the money in his mouth. He tried to bite Officers Williams and Arzate. Appellant continued to struggle until all four officers put their body weight on him. Appellant finally surrendered, saying, "`All right. All right. Just let me stand up." The officers handcuffed appellant and allowed him to stand.

The entire struggle with appellant, beginning with Officer Williamss attempt to remove him from the truck, took approximately three to five minutes. Officer Williams suffered no injuries. Officer Arzate suffered abrasions, redness, swelling, and "pretty bad" burns on both knees. She was treated at the hospital and given medication for pain lasting two to three months. She wore bandages on her knees for over two months. Officer Wagner received a shoulder sprain and was given anti-inflammatory medication.

Officer Williams recovered the money appellant had been holding, which amounted to $60, and also found $84 in one of appellants socks. Officer Williams patted down appellant and searched his truck. He found glass pipes containing residue and a serrated knife with a six-inch blade under the drivers seat.

Appellant was taken to the police station where he was interviewed. When advised of his rights, "he didnt respond at all." Officer Williams testified that appellant would not respond to anything and sat with a blank stare. Accompanied by Officer Wagner, appellant was taken to a hospital. On the way there, appellant was very lethargic and nonresponsive. He kept his eyes closed, but he was not unconscious. Officer Wagner stayed with appellant the entire time that appellant was in the hospital. Appellant had suffered a contusion and abrasion to his left shoulder and an abrasion on his left cheek. The doctor treating appellant asked Officer Wagner if he had checked appellants mouth, and the officer replied that he had not. One of the hospital staff tried to open appellants mouth and insert a tongue depressor. Appellant was no longer unresponsive, and he kept his jaw clamped shut. His eyes were open and his body was tense. As the staff struggled to open appellants mouth, he spit out an object. Officer Wagner retrieved a plastic bindle from the floor. It contained an off-white, powdery substance resembling powder cocaine. He placed the object in a laboratory cup and held it for evidence.

Officer Wagner conducted a search of appellant and his belongings at the hospital. He found a balloon containing a dark, tar-like substance resembling heroin inside appellants sock and placed the item in another container for evidence. Officer Wagner gave the two containers of evidence to Officer Williams, who booked the items into evidence.

The parties stipulated at trial that Lori Lopez was deemed to have been called and duly sworn, and that she qualified as an expert in forensic chemistry. She was deemed to have testified that she conducted a chemical analysis of the substance depicted in Peoples exhibit Nos. 14 and 15 and formed the opinion that the substance contained a net weight of 0.07 grams of heroin. She conducted a chemical analysis of the substance depicted in Peoples exhibit Nos. 12 and 13 and formed the opinion that it contained a net weight of 1.18 grams of cocaine.

Officer Williams testified at trial that the white rocky substance appearing to be cocaine was packaged in a manner consistent with the way cocaine was generally packaged and transported. The packaging of the brown substance in the balloon was consistent with the way heroin was commonly packaged and transported. Officer Williams testified that a useable quantity was "any amount of narcotics that could be used, ingested or injected, smoked, snorted, taken orally." Officer Williams was of the opinion that, assuming the white, rocky substance was 1.18 grams, it was a usable quantity. Assuming that the brown tarry substance was 0.07 grams of heroin, Officer Williams believed it was a useable quantity.

Defense Evidence

Nitin Paul Chopra (Chopra) testified that he was driving his new Jaguar approximately three or four years prior to appellants trial, and he was pulled over. The parties stipulated that the officer issuing Chopras ticket was Officer Williams. Chopra said that two officers approached his car. A female officer asked Chopra for his identification while Officer Williams stood on the passenger side. Chopra asked the female officer why he had been pulled over. Officer Williams told Chopra that it was because his passenger had thrown a lit cigarette out the window. Chopra did not smoke, and, although his passenger was a smoker, his passenger was not smoking in Chopras "brand new" car. The passenger did not throw a cigarette out of the car.

At a subsequent hearing on the matter, all parties were sworn to tell the truth. Officer Williams testified at the hearing that Chopras friend threw the cigarette out the window. Chopra said this was not the truth.

DISCUSSION

I. Review of Sealed Transcript

The record shows that, on October 24, 2006, the trial court granted appellants Pitchess motion on two issues for Officer Williams—"force and credibility." The motion was granted only on the issue of force with respect to Officers Deshay, Wagner, and Arzate. After an in camera hearing, the trial court ordered certain disclosures. The discoverable material was turned over to the defense on November 8, 2006. A supplemental Pitchess motion was heard and granted in part on February 9, 2007. Discovery pursuant to this motion was ordered to be turned over to the defense by February 16, 2007. A supplemental Pitchess motion was granted on March 12, 2007. An in camera hearing was held on April 19, 2007. The trial court allowed disclosure of further information.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

Appellant requests this court to review the sealed records relating to Officers Williams, Wagner, Arzate, and Deshay for any additional discoverable evidence over and above what was disclosed below.

We presume appellants reference in the text of his argument to Officers Subler and Lecrivian was in error, since no officers with these names were involved in this case.

We review a trial courts ruling on a Pitchess motion for abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) That discretion is broad. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We conducted a review of the in camera proceedings in the manner contemplated by the decision in People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230 and found the record to be adequate to permit meaningful appellate review. (See People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.)

We have independently determined from the entire record and that of the sealed in camera proceedings that the trial court properly exercised its discretion and that no additional materials were erroneously not ordered disclosed to the defense.

II. Proposed Testimony of Lary Kennedy

A. Appellants Argument

Appellant contends the trial court erred and violated his right to due process in preventing him from calling a witness, Lary Kennedy (Kennedy), in support of his defense that he had no knowledge the battery victims were police officers. The trial court also wrongly denied appellants request for a mistrial on the basis of the exclusion of the Kennedy testimony.

According to appellant, Kennedys testimony would have raised a reasonable doubt as to one element of the battery charges. The witness would have shown that Officer Williams had a habit of not identifying himself as a police officer during police activity, and this evidence was relevant and admissible under Evidence Code section 1105. Appellant claims the trial court made an incomplete analysis under Evidence Code section 352, and it placed improper conditions on allowing the testimony. Since it cannot be said that the error was harmless beyond a reasonable doubt, reversal is required.

Appellant was convicted of only one of two charges of battery upon a police officer, i.e., the battery upon Officer Arzate.

Evidence Code section 1105 provides, "Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom."

B. Proceedings Below

When defense counsel announced he had two Pitchess witnesses, the prosecutor was asked for his comments before the witnesses testified. The prosecutor had no objection to Chopra, whose testimony was summarized in the facts portion of this opinion. The prosecutor objected to the proposed testimony of Kennedy on the ground of relevance.

When asked for his offer of proof, defense counsel stated that in September 2006, Kennedy heard a woman screaming outside her townhome. When Kennedy ran outside, she saw a man on top of a woman. Kennedy yelled for the man to get off the woman and the man said something to the effect of "`Dont worry. Its under control." The man did not identify himself as a peace officer, and Kennedy did not see a badge around his neck. She saw that he had a gun, however, and became concerned. She left and called 911. At a later point she observed a badge around the mans neck, but she was very sure it was not visible around his neck when she first approached. She was also quite certain that he never identified himself as a peace officer. Defense counsel said that the man was Officer Williams.

The prosecutor argued that Kennedy did not witness the entire incident and was not a party to the incident. The prosecutor saw no relevance to the instant case of a prior occasion where Officer Williams did not display his badge or identify himself at some point.

The trial court stated, "I dont either. Does this mean in a trial that the other side, whoever it is, is allowed to bring in a witness to say on some other occasion the officer or any witness did not do what — did not do something that they said they did in this case? Nobody was asked — that witness in this trial was never asked, `On every single arrest youve ever made is this what you always do on each occasion? So I would say I would not allow it."

Defense counsel argued that Officer Williams did make such a claim. The trial court responded that even if he had, the trial court would not allow the evidence. Kennedys indication that she did not necessarily see the badge had such minimal probative value that the evidence was inadmissible.

The court added that if appellant got on the stand to say that on this occasion Williams did not identify himself, or if there was some other evidence to put it at issue, the court might reconsider. "But I would just say as a matter of throwing out witnesses to the jury potentially on anything, I mean, whether its this issue or any issue, just to me is ludicrous really." The court disagreed with defense counsels assertion that the proposed evidence constituted "a specific instance to show character of something that is at issue in this case," i.e., the element of the battery charge that required the prosecutor to show that appellant knew he was dealing with peace officers. The court stated that whether Officer Williams took out his badge was not at issue in this case absent some evidence that he did not or that "there was no indication that these were cops whatsoever."

The trial court later denied a defense motion for a new trial based on the exclusion of Kennedys testimony.

C. Relevant Authority

"Only relevant evidence is admissible [citations], and all relevant evidence is admissible, unless excluded under the federal or California Constitution or by statute. [Citations.] Relevant evidence is defined in Evidence Code section 210 as evidence `having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. 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. [Citations.] [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]" (People v. Scheid (1997) 16 Cal.4th 1, 13-14.) The trial courts rulings on the admission of evidence constitute an abuse of discretion only if the "`"court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice."" (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)

Relevant evidence may be excluded pursuant to Evidence Code section 352 if the trial court in its discretion concludes `"its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Minifie (1996) 13 Cal.4th 1055, 1069-1070.) A trial courts ruling under this section will not be overturned absent an abuse of discretion. (Id. at p. 1070.)

D. Evidence Properly Excluded

We agree with the trial court. Kennedys proposed testimony that Officer Williams did not tell her he was a police officer and that she did not see a badge on him at first, even if true, would not, on its own, have any tendency to prove that the officers who were the victims of the battery counts did not identify themselves as police officers or that appellant did not know that they were.

First, Kennedys proposed testimony consisted only of the fact that she didnt see Officer Williamss badge when she first encountered him, although she did see it around his neck later, which greatly diminishes the probative value of her testimony. Second, appellant was charged in count 2 (count 3 in the information) with battery with injury on Officer Arzate and in count 3 (count 4 in the information) with battery on Officer Wagner. Officer Williams was not a named victim of battery. Therefore, whether or not he failed to identify himself or wear his badge on one prior occasion had no probative value in, and thus was not relevant to, the charged batteries.

Moreover, contrary to defense counsels assertion, Officer Williams did not testify regarding his habitual manner of identifying himself. "The question whether habit evidence is admissible is essentially one of threshold relevancy . . .; it is addressed to the sound discretion of the trial court." (People v. McPeters (1992) 2 Cal.4th 1148, 1178.) We fail to discern how one instance of an alleged omission by a police officer shows habit or custom, or how this officers habit, if shown, is relevant to the behavior of other officers. (See People v. Memro (1985) 38 Cal.3d 658, 681 [habit often established by repeated instances of similar conduct].) Evidence Code section 1105 did not apply in this instance and the evidence had no "tendency in reason to prove or disprove" whether appellant was aware he was dealing with a police officer in the charged batteries. (Evid. Code, § 210.)

In addition, the trial court did not abuse its discretion under Evidence Code section 352. With little to no probative value to outweigh the potential prejudice of confusing the issues or misleading the jury, the trial courts ruling was not "`"arbitrary, capricious or patently absurd," nor did it result "in a manifest miscarriage of justice."" (People v. Ochoa, supra, 26 Cal.4th at pp. 437-438.) As stated in People v. Jennings (1991) 53 Cal.3d 334, a defendant has a constitutional right to present all evidence in his favor that is both relevant and of significant probative value. (Id. at p. 372.) Here, the proffered evidence met neither criterion. Although the trial court did not specifically name the prejudice that would result from introduction of Kennedys testimony, the record before us reveals that the trial court was well aware of its obligation to weigh the probative value of the evidence against its potential prejudicial effect. "It is presumed that official duty has been regularly performed" (Evid. Code, § 664), and we readily presume that the trial court engaged in the required weighing process, particularly where the court indicated on the record that it was aware of its obligation to do so. Therefore, the trial court properly excluded the evidence, and the defense mistrial motion was properly denied as well. Finally, exclusion of the evidence did not violate appellants right to present a defense, since the application of ordinary rules of evidence does not violate a defendants constitutional right to present a defense. (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Mincey (1992) 2 Cal.4th 408, 440.)

Furthermore, even if the exclusion of the evidence were deemed erroneous, we would find the error harmless. The evidence of guilt in the battery count of which appellant was convicted was strong. Officer Arzate stated that, as she and her partner approached the struggle between appellant and Officer Williams, she stated "police officers." She also had her badge displayed on her belt with her shirt tucked in. As her fellow officer struggled with appellant, Officer Arzate placed one handcuff on appellant, at which time he kicked backward and hit her in the shins numerous times. She was taken down to the ground with appellant and suffered bad burns on both knees as appellant continued to thrash around and resist arrest. Her pain and treatment lasted for two to three months. With respect to identification, all three officers involved in the struggle with appellant testified that they identified themselves orally and by displaying their badges. Officer Williams testified that appellant asked Officer Williams why he needed to speak with appellant, and appellant did not challenge his officer status. Officer Williams told appellant there was a warrant for his arrest, and he continued to tell appellant that he had a warrant during the struggle. The jury therefore reasonably found that appellant knew, or reasonably should have known, that the persons who confronted him were peace officers engaged in the performance of their duties rather than three civilian assailants. Therefore, any error in the exclusion of Kennedys testimony was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

III. Denial of Mistrial Motion Based on Alleged Doyle Error

A. Appellants Argument

Citing Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), appellant argues that reversal of his convictions is required because the prosecutor elicited evidence that appellant remained silent after being read his Miranda rights. Appellant complains that the prosecutor compounded the error by arguing to jurors that they must "[c]onsider the defendants attempts to conceal, hide or even consume the narcotics which were tucked away in his mouth, his resistance to the officers and later to the medical personnel in discovering the contraband." According to appellant the prosecutor not only inferred that appellant was withholding evidence by his silence, but he outright stated that appellant was literally concealing his guilt by keeping his mouth closed. Appellant states that he "was clearly prejudiced by the prosecutorial misconduct in this case," and "[i]t cannot be said that the prejudice was harmful beyond a reasonable doubt."

Miranda v. Arizona (1966) 384 U.S. 436, 444 (Miranda).

According to appellant, the case for reversal is made even stronger by trial courts act of instructing the jury with CALJIC No. 2.11, which stated that neither side is required to call as witnesses everyone who may appear to have some knowledge of the events or to produce all objects or documents suggested by the evidence. This suggested that the defense must present some evidence, which resulted in prejudice to appellant when considered with Officer Williamss testimony, appellants silence during trial, and the prosecutors argument.

B. Proceedings Below

During direct examination of Officer Williams, the prosecutor asked if appellant was taken to the police station after he was placed in handcuffs. Officer Williams confirmed that he was. The following exchange then occurred:

"[The prosecutor]: And once at the police station did you have further contact with [appellant]?

"[Officer Williams]: Just briefly.

"[The prosecutor]: And what was that?

"[Officer Williams]: I advised him of his rights in which he didnt respond at all.

"[The prosecutor]: Now, when you—what was his demeanor during the time of your contact with him at the police station?

"[Officer Williams]: He just wouldnt respond to anything. He sat there with a blank stare."

At the conclusion of the prosecutors direct examination of Officer Williams, and outside the jurys presence, defense counsel addressed the court, stating, "I did not bring this up at the time that it happened because I didnt want to call attention to it and Im far from an expert on this. Its been a while since I looked at the issue, but I think there was either a Griffin or Doyle error committed by the officer. There was testimony—I think Griffin is when its in argument. I think Doyle is testimony. There was a statement that [appellant] was advised of his rights and didnt respond. I think that is a violation of his right to remain silent and I think its improper for the officer to testify to it. I didnt think it was necessarily elicited, but it was the testimony he gave. I do believe its prejudicial. I have not—Im not an expert on it. I have not researched it recently. It came out of nowhere, but I think I would be asking for a mistrial at this time.

Griffin v. California (1965) 380 U.S. 609 (Griffin).

The prosecutor stated, "Your Honor, I think the officer in his questioning was responding to [appellants] demeanor which will come out through other officers that he was lethargic, unresponsive and thats why he was taken to the hospital. They described it to me as kind of a comatose state. And thats how I interpreted the answer. I wish he had not gone into so much detail, but because of the subsequent witnesses and what I expect theyll testify to I think its well within the context of his behavior rather than any Miranda rights. There was no mention of invocation."

In agreeing with the prosecutor, the trial court stated, "Right. I agree. Denied." Defense counsel replied, "Okay." The trial court also denied a subsequent defense motion for new trial based on the alleged Doyle error.

C. Relevant Authority

A mistrial should be granted only if the court finds an incident is prejudicial and cannot be cured by admonition or instruction. (People v. Cox (2003) 30 Cal.4th 916, 953.) Whether an incident is incurably prejudicial is inherently speculative, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) We review the denial of a motion for mistrial for an abuse of discretion. (Ibid.)

Doyle held that "the use for impeachment purposes of petitioners silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." (Doyle, supra, 426 U.S. at p. 619.) The Supreme Court subsequently explained that in order to find Doyle error, defendant must demonstrate that the prosecution used his postarrest silence for impeachment purposes and that the trial court "permitted" its use. (Greer v. Miller (1987) 483 U.S. 756, 761-764 (Greer).) Therefore, in order to find Doyle error, there must be an affirmative act by the trial court to consider and allow the impermissible use. And that "permission" specified in Greer, "will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate." (People v. Evans (1994) 25 Cal.App.4th 358, 368.)

Doyle error is analyzed under the standard of harmless beyond a reasonable doubt set out in Chapman, supra, 386 U.S. at page 24. (People v. Quartermain (1997) 16 Cal.4th 600, 621.) "Under this test, the appropriate inquiry is `not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. [Citation.]" (Ibid., quoting Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)

D. No Doyle Error

We believe the trial court correctly denied the mistrial motion based on alleged Doyle error as well as the new trial motion on the same ground. The record shows that Officer Williams, in commenting that appellant "didnt respond at all," was beginning to recount appellants demeanor and affect at the station, which led to his being taken to the hospital. It requires a rather labored interpretation of the officers words to construe that he was actually informing the jury that appellant invoked his right to remain silent. The prosecutors follow-up question regarding appellants demeanor at the police station served to dispel any such notion. Officer Williams elaborated on his prior remark by stating that appellant "just wouldnt respond to anything. He sat there with a blank stare." This demeanor evidence was expanded upon by Officer Wagners testimony that appellant was nonresponsive when being taken to the hospital and Dr. Garners testimony that appellant was "altered" and not responding to hospital personnel. These comments by the prosecution witnesses were clearly referring to appellants physical manifestations.

With respect to the prosecutors argument, appellant fails to distinguish between the figurative and the literal. A reference to appellant keeping his mouth shut would figuratively constitute a comment on appellants silence. Discussing the fact that appellant had his mouth tightly clenched so as to prevent medical personnel from looking inside refers only to appellants physical act. The prosecutor reasonably argued, based on this evidence, that appellant knew of the presence and nature of the item in his mouth—that is, that it consisted of a controlled substance.

Appellant exhibits a further strained interpretation of language with his complaint regarding CALJIC No. 2.11, which, according to appellant, tells the jury that a defendant must offer some evidence in his behalf. This instruction has been held to be a correct statement of law. (People v. Simms (1970) 10 Cal.App.3d 299, 313; see also People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190.) Moreover, no objection was raised to this instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570 ["`Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]"]; People v. Geier (2007) 41 Cal.4th 555, 579.)

CALJIC No. 2.11 provides: "Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence."

Furthermore, the jury was instructed that it must not draw any inference from the fact that appellant did not testify or discuss this fact and that no lack of testimony by a defendant makes up for the Peoples failure to prove every element of the charges against him. (CALJIC Nos. 2.60, 2.61.) The jury is presumed to have correctly understood and adhered to these instructions. (See, e.g., People v. Holt (1997) 15 Cal.4th 619, 662; People v. Pinholster (1992) 1 Cal.4th 865, 919.) Finally, we note that appellant did present some evidence in the testimony of Chopra.

In any event, even if the trial court erred in denying the mistrial motion, the error was harmless. As we have noted, it was unlikely the jury focused on the one sentence uttered by Officer Williams given the context of the remark provided by subsequent testimony. The prosecutor made no reference to appellants "silence" in response to Miranda warnings during closing argument. The sentence to which appellant objects was brief and fleeting, and no one commented that appellant refused to answer questions. We have discussed the strong evidence of appellants guilt on the battery charge, and the evidence of his possession and transportation of the controlled substances was equally strong. The drugs were found hidden inside his mouth and inside his sock. In light of these circumstances, reversal is unwarranted.

DISPOSITION

The judgment is affirmed.

We concur:

DOI TODD, J.

CHAVEZ, J.


Summaries of

People v. Wong

Court of Appeal of California
Sep 29, 2008
No. B201322 (Cal. Ct. App. Sep. 29, 2008)
Case details for

People v. Wong

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PABLO WONG, Defendant and…

Court:Court of Appeal of California

Date published: Sep 29, 2008

Citations

No. B201322 (Cal. Ct. App. Sep. 29, 2008)