Sepulveda
Filed
2/25/13 P. v. Sepulveda CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND TORRES SEPULVEDA,
Defendant and Appellant.
F063559
(Super.
Ct. No. MCR038366)
APPEAL from
a judgment of the Superior Court of
County. Dale J. Blea, Judge.
Aaron
Williams for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Raymond
Torres Sepulveda was convicted in Count 1 of possession of methamphetamine
while armed with a loaded operable firearm (Health & Saf. Code,
§ 11370.1, subd. (a)) and in Count 2 of possession of ammunition (Pen.
Code, § 12316, subd. (b)(1)).
name="_ftnref1" title="">[1] It was further found true as to Count 2 that
Sepulveda was prohibited from owning or possessing a firearm because of
previous felony convictions (§§ 12021, 12021.1; Welf. & Inst. Code, §§
8100, 8103). The trial court sentenced
Sepulveda to a total term of two years in state prison.
On appeal,
Sepulveda alleges numerous instances of ineffective assistance of counsel; that
the prosecutor impermissibly commented on his postarrest silence; and that
there was insufficient evidence of a “usable amount†to support the possession
of methamphetamine conviction in Count 1.
We disagree and affirm.
STATEMENT OF THE FACTS
At about
midnight on June 13, 2010, police officers Jason Gutknecht and Michael Kutz
were in an unmarked police vehicle when they observed a truck with the bed
filled with televisions and furniture, parked in a high crime area. The officers approached the truck and
observed Martin Rodriguez (Martin) sitting in the driver’s seat of the
truck. Gutknecht knew from information
given him by confidential informants that Martin sold methamphetamine and at
all times carried a loaded firearm.
Within
seconds of when he first saw the truck, Officer Gutknecht exited his vehicle, as
did Martin, and they contacted each other in the parking lot. Gutknecht searched Martin’s person, but did
not find any contraband. There were two
other passengers in the truck: Martin’s wife Lisa Rodriguez (Lisa) in the front
seat and Sepulveda in the back behind the driver’s seat.
Sepulveda
exited the truck at Officer Gutknecht’s request, consented to a search of his
person, and spontaneously admitted he had a gun in his pocket. Gutknecht then removed a loaded .22-caliber
gun, wrapped in a white bandana, as well as a small baggie of methamphetamine
from Sepulveda’s right shirt pocket. The
officer also recovered 31 live .22-caliber bullets from the left shirt
pocket. Gutknecht opined that the
methamphetamine was a “usable amount,†later determined to be .08 grams.
After
Sepulveda was arrested, he spontaneously told Officer Gutknecht he had the gun
for protection from his cousin and had bought it off “some wet back for
$95.†Gutknecht never advised Sepulveda
of his Miranda
statements regarding the incident during his transport to jail or while being
booked into jail. Gutknecht was present
with Sepulveda during this entire process.
Sepulveda
testified in his own defense that, when Martin saw the unmarked police vehicle
and determined it was law enforcement, Sepulveda, Martin, and Lisa were all
outside the truck and all quickly got back into the truck. Martin then handed the gun, bullets, and
bandana to Sepulveda and told him to take responsibility for them or Martin
would have Sepulveda’s daughter and sisters shot. Sepulveda estimated that this occurred within
one or two minutes after they got into the truck. Sepulveda maintained that he was unaware that
Martin had handed him methamphetamine as well.
Sepulveda
testified that Martin told him he was a “three striker†with “nothing to lose,â€
and if Martin went to jail, he would have someone “deal with†Sepulveda’s
sisters. Although Sepulveda acknowledged
that he told the officer he bought the gun in the alleyway by the Johnny Quik
for protection from his cousin, he claimed at trial that he took the gun
because he was scared for his family.
Sepulveda testified that Martin had previously told him about a lot of
“pretty scary†things he had done.
Sepulveda had also seen Martin previously threaten a child with a
gun.
Sepulveda
admitted that he had a prior conviction for possession of methamphetamine 10
years earlier, and that he pled guilty in the prior case because he was
guilty. But Sepulveda insisted that he
was innocent in the instant case.
Lisa,
Martin’s wife, was called by the defense and testified that she was with Martin
the entire night in question and never heard him threaten Sepulveda, nor did
she see Martin with a gun or drugs.
According to Lisa, the windows on the truck were not tinted; the truck
was backing up when the officers approached; Sepulveda claimed responsibility
for the gun “like four times†to the officers; and she saw the methamphetamine
and gun retrieved from different pockets on Sepulveda’s person.
The defense
recalled Officer Gutknecht, who testified that Martin’s truck did have tinted
windows, the truck was parked and not backing up when the officers approached,
Sepulveda claimed responsibility for the gun only once, and the methamphetamine
and gun were retrieved from the same pocket on Sepulveda’s shirt.
DISCUSSION
I.
INEFFECTIVE ASSISTANCE OF COUNSEL
Sepulveda
asserts numerous instances of ineffective assistance of counsel in association
with the preparation and presentation of his case. He claims his trial counsel was ineffective
for (1) insisting the jury be informed Sepulveda had previously been convicted
of possession of methamphetamine; (2) for telling the jury during opening
statement that Martin would be testifying for the defense; (3) for calling Lisa
as a witness to impeach Sepulveda; (4) for failing to corroborate Sepulveda’s
testimony; (5) for failing to call law enforcement officers who would provide
circumstantial evidence that Martin owned a gun; (6) for failing to seek the
identity of the confidential informants who had exculpatory information and for
failing to have them testify; (7) for failing to move to have the possession of
methamphetamine while armed charge dismissed; and (8) cumulative error. We will address each of these issues in turn.
To prevail
on such claims, Sepulveda must establish not only deficient performance, i.e.,
representation below an objective standard of reasonableness, but also
resultant prejudice. (
333; People v. Ledesma (1987) 43
Cal.3d 171, 216.) Tactical errors are
generally not deemed reversible, and counsel’s decisionmaking must be evaluated
in the context of the available facts. (
668, 690 (Strickland).) To the extent the record on appeal fails to
disclose why counsel acted or failed to act in the manner challenged, we will
affirm the judgment “unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory
explanation .…†(
426, overruled on other grounds in People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds
in People v. Hill (1998) 17 Cal.4th
800, 823, fn. 1.) Finally, prejudice
must be affirmatively proved; the record must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.†(Strickland, supra, at p. 694; People
v. Ledesma, supra, at pp. 217-218.)
Using these standards, we conclude Sepulveda’s ineffectiveness claims
fail.
A. Stipulating to a Past Methamphetamine
Possession Conviction
Sepulveda
asserts first that counsel was ineffective for stipulating to the fact that he
had a prior conviction for possession of methamphetamine.
Sepulveda
was charged in Count 2 with possession of ammunition by a person prohibited
from possessing a firearm due to a prior conviction, pursuant to then section
12316, subdivision (b)(1). In order to
prove that count, the People were required to establish that Sepulveda had a
prior felony conviction. (CALCRIM No.
2591.) The parties and trial court had numerous
conversations on the issue of a stipulation as to the prior conviction
allegation. The trial court suggested
that the stipulation state only that Sepulveda had a prior felony conviction
without stating what the nature of the conviction was. However, concerned that the jury would
negatively speculate on an unspecified prior felony, defense counsel insisted
that the stipulation specify that Sepulveda had a prior felony conviction for
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court then read the stipulation,
which stated that Sepulveda had “suffered a felony conviction for possession of
methamphetamine on December 22nd, 2000,†to the jury during the People’s
case-in-chief.
As is
evident from defense counsel’s opening statement, Sepulveda’s defense at trial
was that he was forced to take the gun and drugs from Martin, who threatened
him. To this end, defense counsel told
the jury that Sepulveda was familiar with “the system†since he had a prior
methamphetamine related felony conviction and that, if he was trying to hide
the drugs, he knew better than to put them in his front pocket. According to defense counsel, “[Sepulveda]
knows that if you want to hide your drugs, you put it in your underwear, you
put it somewhere that the cops will not find it.†Sepulveda himself testified that he had a
prior conviction for possessing methamphetamine and that he was guilty in the
prior case, but that he was innocent in the instant case and wanted “everyone
to know it.â€
In
addition, because defense counsel was aware that Sepulveda’s prior conviction
for possession of methamphetamine would be admissible under Evidence Code
section 1101, subdivision (b) as to Count 1, possession of methamphetamine
while armed with a firearm, she knew the jury would hear about the conviction
regardless. But by stipulating to this
same conviction as Sepulveda’s qualifying felony conviction for Count 2, the
jury would be unaware Sepulveda had two additional qualifying convictions. In addition, the jury had no reason to
speculate that the felony conviction was for something arguably more
serious.
Here,
defense counsel had several tactical reasons for stipulating that Sepulveda’s
prior felony was related to methamphetamine, and we afford it great
deference. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “[C]ourts should not second-guess reasonable,
if difficult, tactical decisions in the harsh light of hindsight.†(People
v. Scott (1997) 15 Cal.4th 1188, 1212.)
We will reverse a conviction on the ground of inadequate counsel “only
if the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for his act or omission.â€
(People v. Fosselman (1983) 33
Cal.3d 572, 581.) Thus, this was a
tactical decision requiring no reversal.
the Jury Martin would Testify
Sepulveda
next contends that counsel was ineffective because she made the promise in
opening statement that Martin would testify and she should have known that, if
he was called, he would invoke his right not to incriminate himself.
During her
opening statement, defense counsel informed the jury that she subpoenaed Martin
to testify at trial so the jury “can hear his testimony … and determine for
[themselves] whether he is credible or not.â€
Martin later testified in an evidentiary hearing outside the presence of
the jury, in which he invoked his Fifth Amendment right and refused to answer
any questions regarding his personal possession of drugs or guns, anything
related to Sepulveda, or the incident in which Sepulveda was arrested. The trial court then ruled that the limited
information Martin was willing to testify to was irrelevant and/or precluded
under Evidence Code section 352. Martin
did not testify before the jury.
“Whether the
failure to produce a promised witness amounts to ineffective assistance of
counsel is a fact-based determination that must be assessed on a case-by-case
basis.†(People v. Stanley (2006) 39 Cal.4th 913, 955.) In addition, counsel’s decisionmaking must be
evaluated in the context of the available facts. (People
v. Bolin, supra, 18 Cal.4th at p. 333.)
Sepulveda’s
defense was that the methamphetamine, firearm, and bullets found on him were
handed to him by Martin as the police approached, and that Martin threatened
him if he did not cooperate. It is not
entirely unreasonably for defense counsel to have believed that Martin could
testify about relevant information that would not necessarily implicate
Sepulveda but would, perhaps, corroborate details he would be testifying
to.
We apply a
“strong presumption†that counsel’s representation was within the “wide rangeâ€
of reasonable professional assistance. (
689.) Under this standard, Sepulveda
fails to establish that counsel’s performance fell below an objective standard
of reasonableness by suggesting during opening statement that Martin would
testify during trial. (
Even were we to conclude defense
counsel’s failure to present the witness and testimony described in her opening
statement fell below an objective standard, it is not reasonably probable that
“but for†counsel’s error, the result of the proceeding would have been
different. (Strickland, supra, 466 U.S. at p. 694.) Sepulveda’s defense at trial was not
predicated on Martin assuming responsibility for the contraband, but rather the
jury finding Sepulveda to be credible and believing his testimony, which it did
not do.
Further,
any error was cured by the special instruction given by the trial court which
directed the jury as follows:
“The fact that Martin … did not testify during this
trial is not evidence. Do not speculate
about the reason. You must completely
disregard the circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss
it during your deliberations.â€
Jurors are presumed to follow the court’s admonitions and
instructions. (Romano v. Oklahoma (1994) 512 U.S. 1, 13; People v. Harris (1994) 9 Cal.4th 407, 426.)
C. Calling Lisa as a Witness
Sepulveda
next contends defense counsel was ineffective when it called Lisa as a witness
because her testimony, in essence, “destroy[ed]†Sepulveda’s defense.
Lisa
testified that, on the night of the incident, she and her husband Martin were
in the process of moving and were parked in a parking lot in the truck with
Sepulveda. Lisa testified that the
windows of the truck were not tinted and that the truck was backing up when
they saw the officers. Lisa claimed
Martin did not have a gun or drugs that night, and he never threatened
Sepulveda. She also testified that she
did not know Sepulveda had any drugs on him and that she had not seen Sepulveda
with a gun prior to him being searched.
Lisa testified that she heard Sepulveda say “like four times,†when he
was searched, that it was his gun.
According to Lisa, the drugs, gun and bullets were all found in
different pockets: the drugs in Sepulveda’s shirt pocket, and the gun and
bullets from his two pant pockets.
“[T]he
choice of which, and how many, of potential witnesses [to call] is precisely
the type of choice which should not be subject to review by an appellate
court.†(People v. Floyd (1970) 1 Cal.3d 694, 709, overruled on other
grounds by People v. Wheeler (1978)
22 Cal.3d 258, 287, fn. 36, overruled on other grounds in Johnson v. California (2005) 545 U.S. 162, 165.) If the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged, unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation, the claim on appeal must be
rejected. (People v. Wilson (1992) 3 Cal.4th 926, 936.) Such claims are more appropriately addressed
in a habeas corpus proceeding. (
Cal.4th 264, 266-267.)
Here,
defense counsel announced her intention to have Lisa testify after Martin
asserted his right not to implicate himself.
Sepulveda had asserted, from the very beginning, that he was determined
to testify. Defense counsel may have
believed that it was in Sepulveda’s best interest to call Lisa to corroborate
details that Sepulveda would testify to.
But even if
we determine that defense counsel erred by calling Lisa, the error did not
prejudicially damage Sepulveda. An abundance
of evidence, apart from Lisa’s testimony, confirmed Sepulveda’s
convictions. He was found with a loaded
gun, ammunition, and a usable amount of methamphetamine on his person, he had a
prior felony conviction, and he had no credible explanation for why he
possessed these items.
In
addition, any damage caused by Lisa was mitigated by recalling Officer
Gutknecht, who impeached Lisa’s testimony on the condition of the truck
windows, the number of times Sepulveda claimed responsibility of the gun, and
the location of the contraband.
According to Gutknecht, the truck was stationary when officers
approached; the drugs and gun were pulled out of the same pocket; and Sepulveda
claimed ownership of the gun only once.
We cannot
say that, but for defense counsel’s error in calling Lisa as a witness, the
result of the proceedings would have been different. (Strickland,
supra, 466 U.S. at p. 694.)
D. Declining to Corroborate Martin’s Three
Striker Status
Sepulveda
also contends that defense counsel was ineffective for failing to corroborate
his testimony that Martin was a third striker facing life in prison if he were
caught with the gun and drugs. Sepulveda
had testified that when the officers arrived, Martin handed him the gun,
ammunition, and drugs and told him he was to take responsibility for them
because Martin was a “three striker†and, if he went to jail, Sepulveda’s
daughter and sisters would be shot.
Sepulveda contends that defense counsel could have corroborated Martin’s
status as a third striker “through easily obtained paperwork.â€
The record
on appeal contains no information on what, if any, criminal convictions Martin
had or whether defense counsel made any efforts to procure such
information. From this record, we cannot
determine whether defense counsel’s performance was incompetent based on these
omissions. (People v. Wilson, supra, 3 Cal.4th at p. 936.)
Even if we
are to assume error, we cannot say that Sepulveda was prejudiced by the
omission. The evidence against Sepulveda
was strong. And while documentary
evidence that Martin was a “three striker†may have corroborated one matter
Sepulveda testified to, we cannot say that, but for this error, the result of
the proceeding would have been different.
(Strickland, supra, 466 U.S.
at p. 694.)
E. Failure to Introduce Evidence of Gun Box
at Martin’s Apartment
Sepulveda
next contends that defense counsel was ineffective for failing to introduce
evidence that officers found an empty gun box in Martin’s apartment one month
before the current incidence.
During the
preliminary hearing, Officer Gutknecht testified that, a month prior to
Sepulveda’s arrest, there had been a shooting at an apartment complex just
south of where Martin lived. After a
witness described Martin as being involved, officers searched Martin’s
apartment and located an empty, nondescript gun box, but no gun.
There is no
evidence in the record why defense
counsel did not introduce evidence of the empty gun box at trial. Neither is there any evidence of whether the
gun box was of any relevance to the instant case. As such, we cannot determine that defense
counsel’s representation concerning this omission was below an objective
standard of reasonableness. (
Even if we
are to assume error, we cannot say such error prejudiced Sepulveda. The jury heard testimony that Martin carried
a gun, had been involved in a shooting, and had been seen threatening a child
with his gun. As such, it is not
reasonably probable that, but for the additional fact that Martin had an empty
gun box at his apartment one month earlier, the result of the proceeding would
have been different. (
F. Failure to Seek the Identity of Informants
and Have Them Testify
Sepulveda
next contends that defense counsel was ineffective for failing to seek the
identity of the confidential informants and for failing to have those
informants testify about the fact that they knew Martin at all times to carry a
gun and methamphetamine.
Prior to
trial, the District Attorney informed defense counsel that there was more than
one confidential informant who had information that Martin carried a gun at all
times and was selling methamphetamine.
Sepulveda argues that counsel should have pursued the identity of the
confidential informants to bolster his theory of the case at trial, namely that
the gun and drugs belonged to Martin.
According to Sepulveda, although counsel requested that she be allowed
to present hearsay evidence through the officer who was aware of the
informant’s information, she did not properly bring a motion to discover the
identity of the confidential informants.
“‘“The
common-law privilege of nondisclosure [of the identity of an informer] is based
on public policy. ‘The purpose of the
privilege is the furtherance and protection of the public interest in effective
law enforcement. The privilege
recognizes the obligation of citizens to communicate their knowledge of the
commission of crimes to law-enforcement officials and, by preserving their
anonymity, encourages them to perform that obligation.’ [Citation.]
The informer is thus assured of some protection against reprisals. The use of informers is particularly effective
in the enforcement of sumptuary laws such as those directed against gambling,
prostitution, or the sale and use of liquor and narcotics….†[Citation.]’
[Citation.]†(
1522, 1529.)
Nonetheless,
“the prosecution must disclose the name of an informant who is a material
witness in a criminal case or suffer dismissal of the charges against the
defendant. [Citation.] An informant is a material witness if there
appears, from the evidence presented, a reasonable possibility that he or she
could give evidence on the issue of guilt that might exonerate the
defendant. [Citation.] The defendant bears the burden of adducing
‘“‘some evidence’â€â€™ on this score.†(
159.)
“[T]hird party
culpability evidence is admissible if it is ‘capable of raising a reasonable
doubt of [the] defendant’s guilt,’ .…â€
(People v. Robinson (2005) 37
Cal.4th 592, 625.) “[W]e do not require
that any evidence, however remote,
must be admitted to show a third party’s possible culpability.†(People
v. Hall (1986) 41 Cal.3d 826, 833, italics added.) “[E]vidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a
reasonable doubt about a defendant’s guilt .…†(Ibid.) “[T]o be admissible, evidence of the
culpability of a third party offered by a defendant to demonstrate that a
reasonable doubt exists concerning his or her guilt, must link the third person
either directly or circumstantially to the actual perpetration of the
crime. In assessing an offer of proof
relating to such evidence, the court must decide whether the evidence could
raise a reasonable doubt as to defendant’s guilt and whether it is substantially
more prejudicial than probative under Evidence Code section 352.†(People
v. Bradford (1997) 15 Cal.4th 1229, 1325; see also Hall, supra, 41 Cal.3d at p. 834 [courts should simply treat
third-party culpability evidence like any other evidence; if relevant it is
admissible unless its probative value is substantially outweighed by the risk
of undue delay, prejudice, or confusion].)
Sepulveda
argues that the informants would have testified that Martin carried a gun on
his person at all times and that he was selling methamphetamine. But even if that was the case, it cannot be
said that, but for counsel’s failure to request such a motion, the result of
the proceeding would have been different.
(Strickland, supra, 466 U.S.
at p. 694.) The evidence strongly
confirmed Sepulveda’s guilt. Sepulveda
was not prevented from presenting his defense-- that the gun and drugs were
forced on him by Martin. The jury heard,
through Officer Gutknecht’s testimony, that Martin sold methamphetamine and
that he always carried a gun, the very same evidence that Sepulveda claims the
informants would have testified to.
G. Failure to Make a Section 1118.1 Motion on
Count 1
Sepulveda
next contends that counsel was ineffective for failing to make a section 1118.1
motion for acquittal on Count 1. Count 1
charged Sepulveda with possession of methamphetamine while armed with a firearm
in violation of Health and Safety Code, section 11370.1, subdivision (a). Among other elements, the prosecution was
required to prove that there was a usable amount of methamphetamine. (People
v. Rubacalba (1993) 6 Cal.4th 62, 65-67; CALCRIM No. 2303.)
As argued
by Sepulveda, the evidence of a usable amount was provided by Officer
Gutknecht, who testified that the methamphetamine and its packaging together
totaled three-tenths of a gram and that anything over one-tenth of a gram is a
usable amount, but that Gutknecht never testified to and was never asked how
much methamphetamine was possessed absent the packaging. A criminalist testified that the
methamphetamine alone weighed eight one-hundredth of a gram, an amount
Sepulveda argues is below a usable amount.
But as
noted by respondent, Officer Gutknecht did not testify that anything
amount, but rather “anything less
than one tenth of a gram would be a usable amount,†(italics added) because
that amount can be used in a glass smoking device, snorted, or injected. In this case, the net weight of the
methamphetamine was .08 grams, and was therefore a usable amount. There was therefore sufficient evidence of a
usable amount of methamphetamine to support a conviction in Count 1 and any
motion by counsel for acquittal would have been denied.
make a frivolous motion.†(
931.)
H. Cumulative Ineffective Assistance of
Counsel
Finally,
Sepulveda contends that he was deprived of his right to effective assistance of
counsel through counsel’s errors, both individual and cumulative. However, having found no ineffective
assistance in any of the individual claims of error, we necessarily reject his
claim of cumulative error. (
662.)
II.
PROSECUTORIAL MISCONDUCT
Sepulveda
contends that the prosecutor’s comments on his postarrest silence infringed his
right to silence in violation of Doyle v.
Ohio (1976) 426 U.S. 610 (Doyle)
and People v. Coffman and Marlow
(2004) 34 Cal.4th 1 (Coffman). Specifically, Sepulveda contends that the
prosecutor’s argument to the jury constituted error because it implied that, if
his defense was true, he would have come forward with that information when he
was arrested. We disagree. Because we dispose of this argument on the
merits, we need not address the People’s assertion that the failure of defense
counsel below to object to the questions and commentary waived the issue for
appeal.
A.
Procedural
Background
When
Sepulveda exited the truck at Officer Gutknecht’s request, he consented to a
search of his person and spontaneously admitted he had a gun in his
pocket. After Sepulveda was arrested, he
spontaneously told Officer Gutknecht he had the gun for protection from his
cousin and had bought it “off some wet back for $95.†Gutknecht never advised Sepulveda of his
further statements regarding the incident during his transport to jail or while
being booked into jail. Gutknecht was
present with Sepulveda during this entire process.
In defense
counsel’s opening statement, Sepulveda’s defense was that he was in possession
of the firearm, ammunition and methamphetamine because Martin threatened him if
he did not take the items and claim them as his own when officers
approached.
The
testimony of Officers Gutknecht and Kutz during the people’s case-in-chief
established that Sepulveda spontaneously claimed ownership of the gun, but that
he made no other statements. Defense
counsel initially objected during Gutknecht’s testimony for “[l]ack of personal
knowledge,†which was overcome once the People established that Gutknecht was
with Sepulveda after he was arrested.
Defense counsel made no further objections.
During her
cross-examination of Officers Gutknecht and Kutz, defense counsel asked whether
Sepulveda had said, at the time of booking that “he need[ed] to talk to someone
about the incident.†Both replied in the
negative. On direct examination, defense
counsel asked Sepulveda to explain his postarrest silence, and he explained
that he still felt threatened by Martin, but that he eventually told a booking
officer “everything.†The prosecutor
cross-examined him regarding his silence as well as his claim that he had
spoken to a booking officer, whose name Sepulveda could not remember. Both the prosecutor and defense counsel
addressed Sepulveda’s postarrest, pre-Mirandized
silence during closing arguments: the prosecutor questioning why Sepulveda did
not say anything about the gun belonging to Martin, and defense counsel
explaining that Sepulveda felt threatened.
B.
Applicable Law and Analysis
In
States Supreme Court held that “the use for impeachment purposes of
petitioners’ silence, at the time of arrest and after receiving
Process Clause of the Fourteenth Amendment.â€
(Doyle, supra, 426 U.S. at p.
619.) “Doyle holds that the prosecution may not, consistent with due
process and fundamental fairness, use postarrest silence following
testimony at trial.†(
118.) In other words, once an accused
has been given the Miranda warnings,
the accused’s post-Miranda silence
may not be used to impeach an explanation subsequently offered at trial. (Doyle,
supra, at pp. 619-620; People v.
Medina (1990) 51 Cal.3d 870, 890; People
v. O’Sullivan (1990) 217 Cal.App.3d 237, 244.)
In Fletcher v. Weir (1982) 455 U.S. 603 (Fletcher), the court addressed the admissibility of a defendant’s
postarrest, pre-Miranda silence to
impeach his trial testimony. The court
rejected the extension of Doyle to
such a situation, and clarified that Doyle
applied only when Miranda warnings
have first been given because the silence induced by Miranda warnings implicitly assured the defendant that his silence
would not be used against him. (
is not violated when a defendant testifies and is cross-examined about his
postarrest silence, where no Miranda
warnings had been given following the arrest.
(Fletcher, supra, at p. 607.)
“In the absence of the sort of affirmative assurances
embodied in the Miranda warnings, we
do not believe that it violates due process of law for a State to permit
cross-examination as to postarrest silence when a defendant chooses to take the
stand. A State is entitled, in such
situations, to leave to the judge and jury under its own rules of evidence the
resolution of the extent to which postarrest silence may be deemed to impeach a
criminal defendant’s own testimony.†(
Both the defendant’s pre-Miranda,
pre- and postarrest silence is admissible to impeach his or her trial
testimony. (Fletcher, supra, 455 U.S. at p. 607; Jenkins v. Anderson (1980) 447 U.S. 231, 238; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)
Here
Sepulveda testified at trial and denied the charges, he was therefore properly
impeached with evidence of his postarrest silence because the silence occurred
without being given Miranda
warnings. (Fletcher, supra, 455 U.S. at p. 607; People v. Earp, supra, 20 Cal.4th at p. 856; People v. Delgado, supra, 10 Cal.App.4th at pp. 1842-1843.) Any arguable error on the part of the
prosecution in introducing evidence of Sepulveda’s postarrest, pre-
before Sepulveda testified is harmless beyond a reasonable doubt in light of
his later trial testimony. (
18, 24; People v. Crandell (1988) 46
Cal.3d 833, 879.)
DISPOSITION
The
judgment is affirmed.
_____________________
Franson, J.
WE CONCUR:
_____________________
Kane, Acting P.J.
_____________________
Poochigian, J.
name="_ftn1" title="">[1] All
further statutory references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2]
