Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC055718
Haerle, J.
I. INTRODUCTION
Defendant and appellant Ronald Brooks was convicted of two counts of robbery (Pen. Code, § 212.5) and one count of burglary (§ 460). The jury also found true the allegation that Brooks used a gun in the commission of these crimes. (§ 12022.53, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Brooks argues that (1) the trial court erred in denying his motion to suppress evidence obtained from a stop of the van he was riding in after the robbery; (2) his counsel was ineffective because he failed to move to exclude identification evidence; (3) the trial court erred in admitting extrajudicial statements incriminating him and, in one case, statements made by a witness at a hearing when neither he nor counsel were present; (4) the People committed error during closing argument discussions of the burden of proof; and (5) the judgment must be reversed because of Griffin error. None of these arguments has merit and we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Angela Asoau was living with her boyfriend, Aaron Rodrigues, on Fleetwood Drive in San Bruno on January 6, 2004, where the robbery of which Brooks was convicted took place. Rodrigues’s brother, mother, and sister lived in the house along with Rodrigues’s daughter, Emma.
Asoau had been working at Chuck E. Cheese and had accumulated $500 in cash, which she kept in a safe in the closet of the bedroom she shared with Rodrigues and his daughter. The house in which they were living on Fleetwood Drive has two stories, with most of the rooms, including her own, the kitchen and a bathroom, on the second floor.
The night of January 6, 2004, she was in the kitchen baking cookies. Rodrigues was in the bedroom with his daughter, who had just been put to bed. Asoau looked over and saw a man wearing a mask, and dressed in dark colors, holding a gun. The mask covered the man’s face and forehead but not the area around his eyes or his mouth. At trial, Asoau identified Brooks as the man she saw in the kitchen that night. She had never seen Brooks before she saw him that night. The gun he was holding was “dark, black, dark.” His hair was “long, not very long, but it just hung off his head like little -- like little dreads.”
The night of the robbery, Asoau provided the police with a description of the man who was in the kitchen that night. She said “he was tall and . . . he had on a blue jacket.” She also told the officer that the man had dreadlocks, was wearing a beanie, and had on a white t-shirt. The blue jacket was puffy. Asoau identified a blue jacket shown to her by the People as the jacket she saw the man wearing that night. She also stated that a pair of blue jeans and white t-shirt she was shown “resemble[d]” the jeans and t-shirt worn by the man that night.
The man grabbed Asoau and “then came on the side of me and put the gun to my chin, to my cheek.” He shoved her into the bathroom. After doing so, he asked her who was in the house, and where the money was. About half a minute or a minute later, Rodrigues came out of the bedroom and the man moved him into the bathroom with his hand. Rodrigues was mad and he started crying. The man asked where the money was and Rodrigues told him it was in the room, in a safe. He told the man to get out and that his daughter was in the bedroom. The man paced back and forth in front of the bathroom, keeping the two in that room.
About a minute later, the bedroom light came on. Asoau could hear the sounds of drawers and the closet doors being opened.
Around that time, a friend of Rodrigues came to the door of the house and knocked. The man asked Asoau who was at the door and was told it was “our friend Danny.” Shortly after this conversation, “the second guy from the bedroom had ran out of the bedroom towards downstairs.” The man with them in the bathroom followed right after him. She as unable to see the face of the second man and saw only that “he was short and he had dreadlocks on.”
Rodrigues ran after the men and Asoau went to Rebecca Rodrigues’s room and asked her to call the police. Asoau went outside and saw a big, gray van in the middle of the street. The doors closed as she saw it and the van drove away.
A police officer arrived at the house shortly afterwards. He asked Asoau to accompany him to see a van that was similar to the description she had given him. When they arrived, she saw four men and the van. She identified Brooks as the man who had been with her in the house. When she identified Brooks the night of the robbery, she did so based on the blue jacket he was wearing, his height and the fact that his face was very dark skinned.
She also recognized two of the other men at the scene. One of them was Michael G., her 16-year old cousin, a man she saw about three times every other week. The other was a man named Melvin, who was her cousin’s husband. She knew Melvin quite well, seeing him about every day. She also recognized the fourth person at the show up, Melvin’s brother, Nathan Seastrunk. She didn’t know Nathan as well, seeing him about two or three times in the past year.
After she identified the men, she went back to her house to see if anything that belonged to her had been taken. She testified that Rodrigues’s wallet, his jewelry, $500 in cash of her money and some of his money and coins had been taken, along with marijuana. Asoau identified some jewelry as belonging to her and Aaron.
Rodrigues testified that on January 6, 2004, he was in his bedroom when a man pushed open the door and put a gun to his chin. Rodrigues could not see the man’s face, but observed that he had dreadlocks and was wearing dark clothing. The man asked Rodrigues where the safe was and, when Rodrigues opened the safe for him, he took jewelry and about $3,000 from the safe. Rodrigues had acquired some of the money in the safe from selling marijuana. He also had been smoking marijuana the day of the robbery, and smoked every day.
The man ordered Rodrigues out of the room and into the bathroom, where a second man was waiting. The man outside the bathroom was Black and tall. He was carrying a gun and had dreadlocks. Rodrigues did not get a good look at either man’s face. When a friend came to the front door of the house and knocked, both intruders fled.
Rodrigues saw the men run out of the front door and also saw a van drive by. He unsuccessfully followed the cars. When he returned home, he told the police officers who were there that he had not gotten a good look at the intruders. He did give the police descriptions of the men, however. He described the man inside the bedroom as about five feet nine inches and stocky, wearing a dark ski jacket, gloves and with dreadlocks. He described the man who stood outside the bathroom as between 18 and 20 years old, skinny, wearing a dark beanie and tall -- about six feet one inch. Rodrigues checked the safe. Money and jewelry were missing, along with some marijuana, bongs, and a wallet. Rodrigues admitted that he lied to the police when he said he did not sell marijuana.
San Bruno Police Officer Tim Mahon testified that he arrived at the house on Fleetwood Drive at 8:34 on January 6, 2004. Asoau described the robbery to him and told him that a Black male with dreadlocks and a “puffy blue jacket” pointed a black gun at her. Asoau described the man in the bedroom as a Black man, with dreadlocks, wearing a dark jacket and with a beanie on his head.
After Mahon learned that the van described by Asoau had been stopped, and the four men riding in the van had been taken into custody, he drove Asoau to the location of the van to view and possibly identify the men in the van. Of the four men standing in front of the van in handcuffs, Asoau identified Brooks as the man who held her at gunpoint in the bathroom.
The following day, Asoau told the police that she had recognized two other men in the van – her cousin’s husband Melvin Dandridge and her cousin Michael G. She had been so shocked and hurt to discover that people she considered part of her family were involved in the robbery that she had been unable to tell the police about it until the next day. Asoau also told the police, though at some later time, that she knew and was related to Nathan Seastrunk, who was Brooks’s co-defendant before their trials were severed.
Asoau told the police that she could not eliminate Michael G. or Dandridge as one of the intruders. She also told the police just before trial that she initially suspected the robber holding her in the bathroom might have been Melvin Dandridge because she never trusted him, but that it could not have been him because he did not have dreadlocks like the actual robber. Asoau and Rodrigues testified that the voice of the man who held them in the bathroom was not the same as Michael G. or Melvin Dandridge. Rodrigues testified that he did not tell the police that he smoked or sold marijuana until the day after the crime.
Melvin Dandridge, Brooks, Seastrunk and Michael G. were in the gray van when it was stopped by the police. Inside the van, officers located over $4,000 in cash, gold coins and jewelry from Rodrigues’s safe, Rodrigues’s wallet, a bag containing over an ounce of marijuana, a jar containing a small additional amount of marijuana and two of Rodrigues’s pipes from his bedroom. The police also found a loaded handgun and a dreadlock wig similar in appearance to the hair of the man who ransacked Rodrigues’s bedroom. The next morning, officers checking the area in which the van had been stopped quickly located a loaded black handgun along the side of the road.
Michael G. testified that he did not recall the details of what he said to a probation officer shortly after the trial about the events of that evening, other than the fact that he did not see a gun before or after the robbery. He denied saying anything about who had done the robbery and also stated that it is a bad thing to be considered a “snitch.”
The probation officer to whom Michael G. spoke, Regina Espinoza, testified that, in a statement she took from Michael G. after his arrest, he admitted he was in the van, but did not do anything after Brooks brought up committing a robbery. He simply stayed in the van listening to headphones while Brooks and Seastrunk went into the house. Michael G. told her that when the two men came back to the van he did not see a gun. He did see some money. Michael G. did recall being interviewed by an investigator and a deputy district attorney in a car in San Francisco eight months after his interview with Espinoza. He stated that he did not remember the details of this interview. The district attorney and investigator testified that Michael G. admitted, in this interview, to knowing Brooks, who went by the nickname of “Pooh Bear”. He also said that Brooks and Seastrunk went into the house with guns and came out with money and marijuana. He said that the people they robbed followed them.
The People and the defendant stipulated that, on February 18, 2004, Michael G. admitted he had committed an unrelated robbery, that the charges in that case were dismissed at that time and that Michael G. had not been given a deal for testifying or cooperating in this case.
The officers who transported and booked the four people stopped in the van recorded Brooks’s height at five feet ten inches and his weight at 160 pounds. He was wearing a blue coat, white t-shirt and blue jeans. In contrast, Seastrunk was described as five feet five inches, 160 pounds and wearing a tan, orange and white sweatshirt, t-shirt and blue jeans. Dandridge was described as being five feet ten inches tall, weighing 180 pounds and wearing a tan jacket, white t-shirt and blue pants. Michael G. was five feet nine inches and weighed 135 pounds.
The jury found Brooks guilty of two counts of robbery, one count of burglary and found true the firearm use allegations. This timely appeal followed.
III. DISCUSSION
A. Suppression Motion
1. Factual Background
Brooks, along with his co-defendant, Nathan Seastrunk, filed a motion to suppress under section 1538.5, challenging the stop of the van in which they were riding. Brooks argued that the description of the van was insufficient to justify the stop.
Initially, Brooks was charged jointly with the second robbery suspect, Nathan Seastrunk. After the court heard the suppression motion of both defendants, the cases were severed for trial.
At the hearing on this motion, defendants played the tape of the dispatch call to San Bruno Police Department officers. Defendants also played the tape of the 911 call to the dispatcher.
The 911 dispatcher testified that she received a 911 call on January 6, 2004, at 8:34 in the evening. The call lasted about five or six minutes. During the call, she spoke with two women. The first woman to whom she spoke “said that two black men entered her house with guns. They left in a van, SUV-type, gray -- gray older van.” The dispatcher spoke to this woman for about a minute. The address from which this woman was calling was 2110 Fleetwood Drive.
The dispatcher then spoke to another woman. She described this woman as “afraid. She was hysterical, breathing heavy. Sounded like she had been crying.” The caller’s name was Angela. Angela said that “two black men came into the house. They had handguns. They put her and her boyfriend into the bathroom. She said that they left in a gray van. It was older.”
Angela described the van as “an old van, the kind that could have a ladder. She said that it had a wheel, like, a spare tire, on the back.” Angela told the dispatcher that the van was “heading towards 7-Eleven.”
While the dispatcher was speaking to Angela, a second dispatcher was broadcasting this information to the officers in the field. This information was recorded on a dispatch tape.
The call ended when Sergeant Mahon arrived at Angela’s home. When he did, the dispatcher hung up the phone so the women could speak to the officer.
Officer John Ponzini, of the San Bruno police, testified that he was on duty on January 6, 2004, and received a dispatch of a robbery that had occurred at 2110 Fleetwood Drive at around 8:34 in the evening. He began to drive in the direction of the address and “saw a gray older model van traveling westbound on Sneath Lane.”
He had been dispatched “with regards to a gray van” and also understood from the dispatcher “that the suspects had left the scene in a vehicle matching that description.” He spotted the van about two minutes after he received the dispatch and about half a mile from the scene of the robbery. The van was traveling away from the scene of the robbery. This location was consistent with information he received from the dispatcher about the van’s direction of travel.
Ponzini made a u-turn and followed the van. He got the license number of the van and relayed that information to dispatch. This call was made at 8:37 p.m. He followed the van for a minute or two. As he did so, he “could only see silhouettes through the -- the partially obscured rear window.” The rear window “was covered by -- almost looked like a foil substance. But it was a little transparent. So, you could see somewhat inside of the vehicle.” Inside the vehicle were “at least two” people.” The officer pulled the van over, making a “felony traffic stop.”
The total amount of time between the first dispatch and the activation of his red lights was about six minutes. When he turned on his red lights, the van began to rock back and forth quite a bit, something the officer found unusual.
As soon as the other units were in position, the occupants were ordered out of the van. Officer Ponzini conducted a cursory search of the van for weapons and found one. Angela Asoau was brought to the van about five minutes later and identified the van as the one she had seen leaving the site. She also identified Brooks as the man who held a gun to her outside the bathroom, but did not identify any of the other men.
The four men were arrested and a search of the van revealed Rodrigues’s money, coins, marijuana and wallet. The officers also found a dreadlock wig and a handgun.
The trial court denied the section 1538.5 motion, finding that the conduct of the officers was appropriate, and the stop supported. The court also ruled that the search and arrests were appropriate.
2. Discussion
On appeal, Brooks contends that there was not reasonable suspicion to stop the van because it did not match the description the police officer received from the dispatcher. We disagree.
Brooks bore the burden of establishing that the stop of the van violated his Fourth Amendment rights. (People v. Martins (1991) 228 Cal.App.3d 1632, 1636.) The trial court acts as the fact finder and we defer to these factual findings as long as they are supported by substantial evidence. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) On appeal, we review these facts to determine whether the officers’ actions comply with the Fourth Amendment. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
In order to justify an investigative detention, such as the one that occurred here, there must be “specific, articulable facts” that would lead an officer to suspect that some activity relating to a crime is occurring or is about to occur and that the person the officer intends to detain is involved in that activity. The officer, therefore, must have a reasonable suspicion that criminal activity is involved in order to justify a temporary stop or detention. (People v. Souza (1994) 9 Cal.4th 224, 230; see also In re Tony C. (1978) 21 Cal.3d 888 893; Terry v. Ohio (1968) 392 U.S. 1, 22.) Because there is no “neat set of legal rules” (Illinois v. Gates (1983) 462 U.S. 213, 232) that will lead to the conclusion that a stop was justified, we must consider “‘the totality of the circumstances -- the whole picture . . . .’” (Alabama v. White (1990) 496 U.S. 325, 330) in evaluating the constitutionality of the stop.
Here, the trial court properly concluded that the stop was justified because Ponzini had a reasonable suspicion that the passengers of the van were involved in criminal activity. Specifically, the dispatch call Ponzini received informed him that a crime had been committed two minutes before the dispatch, and that at least two Black males were involved. He knew that the suspects had left the crime scene in an older gray van and that the van was headed in the direction of Sneath Lane.
The van Ponzini pulled over was headed in the direction of Sneath Lane, not more than 7/10 of a mile from the crime scene and two minutes after the dispatch call took place. Ponzini observed at least two people in the van. He saw only two other cars traveling in the same direction as the van.
Ponzini’s actions were justified by these specific, articulable facts. Ponzini’s conclusion that the van he saw was quite possibly the van that had been observed leaving the crime scene was not a hunch, but a reasonable suspicion.
Brooks, however, argues the stop was unlawful because the description of the van the officers received from the dispatcher differed from the van’s actual appearance. In making this argument, he ignores two important principles.
First, it is well established that the police need not have an exact description of a vehicle in order to make a constitutionally appropriate stop. In People v. Jones (1981) 126 Cal.App.3d 308, 314, the court held that, in establishing probable cause by matching the victim’s description of a vehicle to the vehicle that was stopped, “the description need not match the vehicle in every detail.” As the court explained in People v. Smith (1970) 4 Cal.App.3d 41, 48-49, “Crime victims often have limited opportunity for observation; their reports may be hurried, perhaps garbled by fright or shock. More garbling may occur as the information is relayed to the police broadcaster and from the broadcaster to the field. It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties.” Second, we look at the totality of circumstances under which the stop took place in order to determine whether it was reasonable. The totality of circumstances includes all information available to the police, not simply a single aspect of the stop.
Applying these principles, we conclude substantial evidence supports the trial court’s conclusion that the stop was justified. There was “adequate conformity between description and fact” with regard to the van. The information available to the officers was that the van was an older gray van, the type that has a ladder up the back. The van they stopped was in fact an older “blue-grey” van. Although it did not perfectly match the description given the officers, it was not an unreasonable conclusion on the part of the police that this van might indeed be the older gray van described by Asoau.
In addition, the totality of the circumstances under which the van was stopped included additional information upon which the officers could rely in reaching a reasonable conclusion that the van might be involved in criminal activity. Specifically, the van was proceeding in the general direction the victim had said it would be going, and it was observed a few minutes after the robbery in about the distance it could have been expected to travel during that time. There were few other cars on the road at that time and the van most closely resembled Asaou’s description of the van she had seen leaving her house after the robbery.
Our conclusion is supported by the case law. For example, in People v. Bittaker (1989) 48 Cal.3d 1046, 1076, the court upheld a stop in which the police stopped a silver van that had been described as light blue. And in People v. Flores (1974) 12 Cal.3d 85, officers had a four-day old description of a “dark colored fastback General Motors sedan” from the 1940’s. The officers stopped a 1947 Pontiac and the court upheld the stop, pointing out that the age of the car alone was a sufficiently specific description of the vehicle to provide the officers reasonable suspicion to make the stop.
The cases to the contrary cited by Brooks, People v. Conway (1994) 25 Cal.App.4th 385 and People v. Anthony (1970) 7 Cal.App.3d 751, are in apposite. The stops the court invalidated in those cases involved vehicles that were stopped by officers who had no description of the vehicle involved. That is not the case here. Nor does Brooks’s reliance on People v. Ramirez ( 1996) 41 Cal.App.4th 1608, and People v. Huff (1978) 83 Cal.App.3d 549, convince us otherwise. Although in each of those cases the officers stopped cars, the descriptions of which precisely matched the information they had received, there is no requirement that this need be the case in every instance. Similarly, in People v. Watson (1970) 12 Cal.App.3d 130, the fact that the description of the car in that case was almost identical to the car stopped, but for a discrepancy in the license plate numbers, does not mean that, in all such cases, the description must be nearly identical to the car stopped. Finally, Williams v. Superior Court (1985) 168 Cal.App.3d 349involved a stop which occurred a considerable amount of time after the crime occurred (one week) and the person stopped did not resemble the person described by the victims. In sum, these cases do not stand for the proposition that, in order for a court to conclude that a vehicle stop is constitutionally justified, the description of the vehicle must be nearly identical to that of the car stopped. This is simply not the law and, accordingly, we reject Brooks’s argument.
B. The In-Field Identification
A few minutes after the van in which Brooks was riding was stopped, Asoau, accompanied by a police officer, was asked to identify, from among the four men in the van, the men who had robbed her that evening. She identified Brooks.
On appeal, Brooks argues that the in-field show up in which he was identified violated the Fourteenth Amendment because it was unnecessary, unduly suggestive and unreliable. However, Brooks did not object to the admission of evidence regarding Asoau’s identification of him at the show-up. Therefore, this claim has been waived. (People v. Medina (1995) 11 Cal.4th 694, 753.)
Brooks also argues that his attorney was ineffective for failing to object to the admission of this evidence on Fourteenth Amendment grounds. Because such an objection would have been unavailing, we conclude that there was no ineffective assistance of counsel. (People v. Hines (1997) 15 Cal.4th 997, 1047.)
In determining whether to admit evidence of an eyewitness identification, the trial court must first decide whether the show-up procedure was unduly suggestive or unnecessary. (People v. Nguyen (1994) 23 Cal.App.4th 32, 37-38.) If the court finds the procedure was suggestive, it must then determine whether the in-court identification was nevertheless reliable under the totality of the circumstances. (Id. at p. 38.) The defendant has the initial burden of establishing that the pretrial identification was unduly suggestive. (Ibid.)
Our Supreme Court has not yet settled the standard of review for determining whether an in-field lineup was unduly suggestive. (People v. Ochoa (1998) 19 Cal.4th 353, 413.) Thus, it is not clear whether this issue is a factual question subject to deferential review or a legal question subject to de novo review or a mix of both. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) However, even under independent review, we conclude the in-field lineup was not unduly suggestive.
Tim Mahon, a San Bruno police officer, spoke to Asoau immediately after the robbery. Asoau told him that she had been robbed by a Black male with dreadlocks and wearing a puffy blue jacket. Asoau also described the other robber, who was in Rodrigues’s bedroom, as Black, wearing dreadlocks, a dark jacket and a beanie.
Mahon received a radio broadcast that the police had stopped a van matching the description given by Asoau. Mahon took Asoau to the place where the van had been stopped. He gave her the standard admonition that she need not identify anyone at the show up. When they arrived, Asoau identified the van as the vehicle she had seen leave her house immediately after the robbery.
The four men who were in the van were outside the van when they arrived. Each of them was handcuffed and guarded by an officer. Michael G. was wearing a beanie, which an officer removed.
Asoau identified Brooks as the man who held the gun on her while she was in the bathroom. She did not identify any of the other men.
Having independently reviewed the record, we conclude the procedure used here for identifying the men in the van was neither unduly suggestive nor unnecessary.
An in-field show up may be necessary for a number of reasons: “[T]he justification for that on site confrontation, as opposed to a formal lineup procedure, is generally the need to exclude from consideration innocent persons so that the police may continue to search for the defendant while it is reasonably likely that he is still in the immediate area.” (People v. Nash (1982) 129 Cal.App.3d 513, 517.) Thus, prompt identification of a suspect close to the time and place of the offense serves a legitimate purpose in quickly ruling out innocent suspects and apprehending the guilty. (People v. Martinez (1989) 207 Cal.App.3d 1204, 1219.) Such identifications are also likely to be more accurate than a more belated identification (Ibid.) because they permit the police to conduct an identification procedure while the events are still fresh in the witness’s mind. (In re Carlos M. (1990) 220 Cal.App.3d 372, 386). They have also been justified by the need to prevent a suspect from altering his or her appearance (Frank v. Blackburn (5th Cir. 1979) 605 F.2d 910, 912), and have been found necessary in exigent circumstances such as a serious injury to the victim. (Stovall v. Denno (1967) 388 U.S. 293, 302.)
Here, the necessity for such a show up is apparent -- the van the police stopped contained four men. The victims, however, reported only two robbers. Given the possibility that the van contained at least two persons who might be innocent, the in-field show up was a necessary procedure to assist the police in determining whether some (or all) of the men in the van were not the persons involved in the robbery. Second, one of the strongest justifications for such a show up -- to conduct the identification while the events are fresh in the witness’s mind -- was present here. The robbery had occurred only moments before. The witness was never more likely than at that moment to clearly remember the men who committed it.
Brooks, however, argues that the in-field lineup was unnecessary because there were no exigent circumstances. Although he is correct that the police did not employ this identification procedure because of exigent circumstances, there is no requirement that an in-field show up may be conducted only in such circumstances. (United States v. Kessler (9th Cir. 1982) 692 F.2d 584, 585.)
We also reject Brooks’s contention that the show up was unduly suggestive. Viewing the totality of the circumstances, the in-field identification procedure used here was not unduly suggestive. For example, in People v. Gomez (1976) 63 Cal.App.3d 328, 335-337, the court held that a one person show up was permissible notwithstanding the fact that the victim was told there was a suspect the police wanted her to look at, the defendant was standing outside a patrol car, handcuffed, with two officers, and the victim volunteered her identification before being admonished. Here, Brooks was one of four men and Asoau had earlier been admonished that “we had a vehicle stopped and some people detained that may or may not have been involved in what happened tonight. And that she was under no obligation to identify anyone.”
The fact that the men in front of the car were handcuffed and guarded by the police while standing in front of the van Asoau had previously identified is also not unduly suggestive. (In re Carlos M., supra, 220 Cal.App.3d at pp. 386-387 [suspects identified in show up while under police guard and in handcuffs not unduly suggestive], In re Richard W. (1979) 91 Cal.App.3d 960, 969-971 [handcuffs on suspect not unduly suggestive].) The fact that Brooks was treated similarly to each of the men in the van indicates that there was no suggestion he -- any more than the other three -- had been singled out as the perpetrator.
Citing People v. Laursen (1968) 264 Cal.App.2d 932, 943, overruled on other grounds by Mozzetti v. Superior Court (1971) 4 Cal.3d 699, Brooks also argues that because Brooks was in a show up with three people who were related to Asoau, the show up was unduly suggestive. While it is true that a lineup which contains persons familiar to the witness may cause the witness to focus attention on an unknown person, this is not always the case. Here, Asoau’s identification of Brooks was based on information she had obtained when he held her at gunpoint less than an hour earlier, rather than on any unduly suggestive aspect of the show up. In fact, Asoau had described the robber to the police earlier as having dreadlocks and wearing a puffy jacket, two things that set Brooks apart from the other four men.
Because we have concluded that the in-field identification was not unduly suggestive or unnecessary, we do not reach the issue of whether the identification of Brooks was admissible because it was reliable under the totality of the circumstances. Given that the identification was not unduly suggestive or unnecessary, any objection counsel might have made to the admission of Asoau’s testimony regarding the lineup would have been unavailing. Finding no ineffective assistance of counsel, we reject Brooks’s objections to the in-field identification.
C. Michael G.’s Out-of Court Statement
At trial, the court admitted into evidence the testimony of one Regina Espinoza, a probation officer who spoke to Michael G., a juvenile who was present in the van at the time it was stopped. In his statement to Espinoza, Michael G. implicated Brooks as one of the people who entered Rodrigues’s and Asoau’s house on January 6, 2004. The court also admitted into evidence the testimony of Detective Michael Guldner who, similarly, recounted a conversation with Michael G. in which Michael G. identified Brooks as one of the people who entered Rodrigues’s house that night.
Brooks argues that his due process rights were violated because the trial court (1) denied his motion to exclude these statements on the ground that they were coerced; (2) based its ruling on the issue of coercion on a hearing at which neither Brooks nor his attorney were present; (3) admitted Michael G.’s testimony in violation of his privilege against self-incrimination; (4) based its ruling that Michael G. had no Fifth Amendment privilege on testimony taken during a hearing at which neither Brooks nor his attorney were present. None of these contentions has any merit.
1. Coercion
With regard to the trial court’s denial of Brooks’s motion, the general rule is that a defendant who moves to exclude a third party statement on the ground of coercion has the burden of showing that the statement was the product of unlawful coercion. Should the defendant meet this burden, the evidence must be excluded because it is “inherently unreliable.” (People v. Lee (2002) 95 Cal.App.4th 772, 788.)
Brooks, however, contends that the People bore the burden of proof here. We disagree. Although the People bear the burden when a defendant challenges the voluntariness of his own statement (People v. Lucas (1995) 12 Cal.4th 415, 442), when the defendant challenges a third party statement, the defendant bears the burden of proof. (People v. Badgett (1995) 10 Cal.4th 330, 348.)
On appeal, we independently review the trial court’s findings regarding the voluntariness of the confession, giving “‘“great weight to [its] considered conclusions.”’” (People v. Whitson (1998) 17 Cal.4th 229, 248.) We accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (Ibid.) No single factor is dispositive in determining voluntariness. Rather, we consider the totality of the circumstances. (People v. Williams (1997) 16 Cal.4th 635, 660-661.)
There is little dispute about the conditions under which Michael G. made the statements Brooks claims were coerced. The parole officer, Regina Espinoza, testified that Michael G. had been detained regarding “an alleged strong armed robbery.” She interviewed Michael G. on January 7, 2004. The interview took place in a private kitchen area of Juvenile Hall. She interviewed him because she was preparing a detention memorandum to present to the court when Michael G. appeared at his detention hearing. At the interview, she read Michael G. his Miranda rights. She was aware that he had invoked his Miranda rights earlier, when he was arrested. However, as a matter of protocol, she went over the Miranda rights and asked him if he “still want[ed] to make a statement . . . .” She told him “he can make a statement or not. I asked him if he wanted to tell me what happened. And he did. He gave a statement.”
Espinoza did not make any threats or tell him he had to talk to her. She did not make any promises to him or tell him that things would go better for him if he gave a statement. Other than reading Michael G. his Miranda rights and asking him if he wanted to make a statement, she told him she was preparing a detention memorandum for court the following day. She explained to him that the purpose of a detention report is to recommend whether or not a person who had been detained could be freed. When she interviewed Michael G., they were the only people in the room.
Michael G. also testified, at a time when neither Brooks nor his counsel were present, about the conditions of this interview. He stated that, within a day or two of being arrested, he was interviewed by Espinoza. Just before the interview, he had been asleep for about half an hour. Staff at the juvenile facility took him to a kitchen, where he spoke to Espinoza. He did not think that, by speaking to her, he would be freed. He told her he was scared and the answers he gave her, he gave her because he was scared. The interview did not take more than half an hour. He could not recall why he was scared. He also recalled being interviewed, in a car, by a deputy district attorney and a police officer. In this interview, he did not feel afraid and he told the truth.
At the time of Michael G.’s testimony, Brooks was still a co-defendant with Nathan Seastrunk, who was accused of being the other person who robbed Rodrigues and Asoau. It is unclear from the record why Brooks and counsel were not present when Michael G. testified about the conditions under which he made statements to Espinoza and, later, to a deputy district attorney and police officer.
Based on Espinoza’s testimony, the trial court ruled that the statement was not coerced and that “under the circumstances [the statement] was reliable.
Brooks argues that Michael G.’s statement to the probation officer was coerced because (a) he was asleep when he made the statements and (b) he was afraid. Brooks also argues that, because the interview was conducted for the purpose of a detention report, Michael G.’s statement was made for the purpose of being permitted to go free. He also challenges Michael G.’s statements to the police officer and the deputy district attorney as similarly coerced.
Having reviewed the totality of the circumstances under which Michael G. made his statement, we conclude the trial court did not err in denying Brooks’s motion to suppress Michael G.’s statements. Neither Michael G. nor Espinoza testified that any element of coercion was present in either the kitchen or the car when Michael G. spoke about this crime. Further, it is simply not the case, as Brooks suggests, that explaining to Michael G. the purpose of a detention report amounts to a promise of benefit or leniency (a promise which may render a statement involuntary and inadmissible). (People v. Carr (1972) 8 Cal.3d 287, 296.) And the case on which defendant relies, In re Shawn D. (1993) 20 Cal.App.4th 200, involves facts that are not comparable to these. The 16-year-old who was interrogated in that case was subjected to three hours of questioning in which he was repeatedly lied to about the possibility of being tried as an adult and sent to San Quentin. Moreover, the interrogator in that case impermissibly promised the defendant that he would be treated more leniently if he confessed, something that did not occur here. (Id. at pp. 207, 214.) The trial court did not err in finding that Michael G.’s statements were not coerced.
We will not, as Brooks requests, resolve the “question” of whether Michael G.’s invocation of his Miranda rights included a request for an attorney by concluding that Michael G. requested counsel. Defendant bore the burden of establishing that Michael G.’s statement was coerced. There is no evidence in the record regarding this issue and we will not manufacturer it out of whole cloth at defendant’s request.
2. Absence of Brooks and Counsel During Michael G.’s Testimony Regarding Statements to Espinoza and District Attorney
On February 22, 2005, the trial court considered and ruled on Brooks’s motion (a motion he made jointly with his then-co-defendant Nathan Seastrunk) to exclude Michael G.’s statements as coerced. Neither Brooks nor his counsel were present at the January 27, 2005, hearing when Michael G. testified regarding the circumstances surrounding his statements to Espinoza shortly after the crime was committed and to the District Attorney and police officer several months later. Brooks now argues that his right to counsel was violated because this testimony was taken in the absence of counsel.
Brooks’s co-defendant at that time, Nathan Seastrunk and Seastrunk’s counsel were present at Michael G.’s testimony. Seastrunk’s counsel cross-examined Michael G.
A defendant has a right to be present at every critical stage of a trial. (Kentucky v. Stincer (1987) 482 U.S. 730, 745.) However, even if we assume that the hearing from which Brooks and his counsel were absent was a “critical stage” of his trial, Brooks’s absence from this hearing was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 23; People v. Robertson (1989) 48 Cal.3d 18, 62.)
We reject Brooks’s argument that this is a case in which there is a “complete denial of counsel” in which no showing of prejudice need be made. (United States v. Cronic (1984) 466 U.S. 648, 659.) In the cases cited by Brooks, the defendants were denied assistance of counsel altogether. Here, in contrast, there is no evidence that Brooks was denied representation or that he and counsel were barred from the hearing, but, rather, only that he and his counsel were absent when Michael G. testified.
In ruling that Michael G.’s statement was not coerced, the trial court discussed only Espinoza’s testimony, testimony that took place in the presence of Brooks and his counsel. Espinoza’s testimony did not differ materially from Michael G.’s far briefer description of the events surrounding his statement. Although Brooks argues that his counsel would have vigorously cross-examined Michael G. based on Brooks’s knowledge of Michael G.’s mental state the night before he made his statement to Espinoza, Brooks’s co-defendant, Seastrunk and his counsel, were present at this hearing. Seastrunk, like Brooks was also aware of Michael G.’s mental state and equally able (and motivated) to inform counsel of any relevant information regarding Michael G. In fact, the record indicates that Seastrunk’s counsel did examine Michael G., and we see nothing in the record that indicates this cross-examination was not thorough. Accordingly, we conclude that any error was harmless beyond a reasonable doubt.
3. Michael G.’s Fifth Amendment Privilege
Before Brooks’s trial, the court and Michael G.’s attorney concluded that Michael G. had no legitimate Fifth Amendment claim that would prevent him from testifying at Brooks’s trial. Accordingly, when called to testify, Michael G. did not invoke his Fifth Amendment rights, because he had concluded and the court had ruled that he faced no potential jeopardy for testifying about the events that formed the basis of the prosecution in Brooks’s trial.
Brooks now argues that the trial court erred in finding that Michael G. did not have a Fifth Amendment privilege against self-incrimination
Brooks, however, does not have standing to raise Michael G.’s Fifth Amendment claim. In People v. Douglas (1990) 50 Cal.3d 468, 501, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907, our Supreme Court held that a defendant who argued that a witness’s testimony should have been excluded on Fifth Amendment grounds, “lacks standing to object to any perceived violation of [the witness’s] privilege against self-incrimination. That right is personal, and may not be vicariously asserted by another.” Here, as in Douglas, no such personal right has been invoked and Brooks may not assert it vicariously.
Defendant’s citation to People v. Seijas (2005) 36 Cal.4th 291, is of no assistance. In Seijas, a case that contains a thorough description of the way in which the Fifth Amendment operates, the witness invoked the privilege; here he did not.
Nor is People v. Shipe (1975) 49 Cal.App.3d 343, 349-350, apposite. In Shipe, as in Seijas, the witness invoked the privilege. In Shipe, the court ruled that no such privilege existed. Nevertheless, the witness refused to testify. The prosecution asked a series of highly prejudicial, leading “isn’t it true” questions which, the Shipe court ruled, violated the defendant’s rights to cross-examination under the Confrontation Clause. Here, Michael G. did not refuse to testify, and the defendant was not denied the opportunity to cross-examine him. As the People point out, in People v. Perez (2000) 82 Cal.App.4th 760, when a witness is “‘present at trial and subject to unrestricted cross-examination,’ ‘the traditional protections of the oath, cross-examination and the opportunity for the jury to observe the witness’s demeanor satisfy the constitutional requirements.’ [Citation.]” (Id. at pp. 765-766.) “The Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’” (Id. at p. 765.)
Nor is Crawford v. Washington (2004) 541 U.S. 36 applicable. In Crawford, the court’s concern is with the Confrontation Clause issues implicated by the admission of hearsay evidence admitted in lieu of live testimony. Here, of course, Michael G. testified.
Finally, we reject Brooks’s suggestion that because Michael G. answered “I don’t remember” or “no” to many of the questions asked of him at the trial, he somehow was asserting a Fifth Amendment right not to testify, we reject that argument. We know of no authority for the proposition that this right may be invoked in such a manner, nor has defendant provide us with any.
4. Absence of Brooks and Counsel At Hearing on Michael G.’s Invocation of Fifth Amendment Right
Brooks contends that he was denied his right to counsel and confrontation because neither he nor his attorney were present when Walter Aldridge, the San Francisco Deputy District Attorney in charge of the juvenile division, testified regarding the possibility that Michael G. might be tried for his involvement in the Asoau/Rodrigues robbery. At that time, Aldridge testified that “he would not prosecute Michael G. for the events in this case, based upon the fact that the case was dismissed against him in San Mateo County. [¶] He felt that there was one juvenile court throughout the whole state. And once the case was dismissed in one county, that he would never refile it.” A second juvenile court attorney, Eddie Thomas, addressed the same issue and reached a similar conclusion about the possibility that Michael G. would be prosecuted for the events in the Rodrigues/Asoau robbery. Brooks was present and his counsel cross-examined Thomas.
Prior to Brooks’s trial, Brooks’s counsel informed the court that he had not had the opportunity to cross-examine Aldridge at the earlier hearing. The People made an offer of proof regarding Aldridge’s prior testimony. Counsel had also available to him a transcript of that testimony. The trial court made the following tentative ruling: “[B]ased on the testimony presented by both parties [i.e., Aldridge and Thomas], that in fact that . . . Michael G. did not have the 5th Amendment right, and not to testify, given the factors testified to by both Mr. Thomas and Mr. Aldridge.” The court then asked counsel, “unless, Counsel, you can present me with some other line of questioning, or some other issues as it relates to having reviewed the transcripts, that you think the Court consider, I’m prepared to make my ruling in this matter, as well.” Counsel did not present any other line of possible cross-examination and instead presented the court with an argument, based on the transcript of Aldridge’s testimony and also Thomas’s testimony about why there was a Fifth Amendment privilege.
In our view, any error here was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 23; People v. Robertson, supra, 48 Cal.3d at p. 62.) First, defense counsel admitted that he was “not able to apprise the Court of another line of questioning that I would have for Mr. Aldridge.” Further, Aldridge’s testimony did not differ from Thomas’s. Counsel had an opportunity to cross-examine Thomas and, presumably, elicited any damaging information to the point of view espoused by both men, at that time. Finally, Seastrunk’s attorney was present during Aldridge’s testimony and, we assume, given that his interest in Michael G.’s invocation of the Fifth Amendment privilege was equally as strong as Brooks’s, subjected Aldridge to a thorough cross-examination. Finding no prejudice, we reject Brooks’s argument.
D. Prosecutorial Misconduct -- Beyond a Reasonable Doubt Standard
Brooks challenges statements made by the prosecutor during closing argument on the subject of the “beyond a reasonable doubt” standard. He also takes issue with the presentation by the People to the jury during closing argument of a chart that tracked the hypothetical standards of doubt described to the jury.
We consider the People’s statements in the larger context of the entire closing arguments made by both counsel and the court’s instructions to the jury. In order to put the statements made by the People in context, we reproduce here and in the body of this opinion, the bulk of the statements made by the People and by Brooks regarding the reasonable doubt standard:
With the exception of an objection to the use of certain language in the chart, an objection the court sustained, Brooks did not object to the People’s argument regarding the burden of proof. Rather, Brooks’s counsel also discussed the reasonable doubt standard at length. During his closing argument, Brooks’s counsel told the jury: “Okay. Now, what is the burden of proof? Now Mr. Good, it’s beyond a reasonable doubt. Mr. Good spent a lot of time telling you how it’s -- it’s not that high, doesn’t have to be that perfect. Kept stressing that to you. If his case is so great, why is he spending 30 percent of his argument telling you that this isn’t that -- this isn’t that tough. This case is so overwhelming, his witnesses are so believable. [¶] To get some -- some context on what the burden of proof is on the prosecutor, Mr. Good talked about the different levels in the law. There’s a preponderance, and that’s reserved for trial where we’re fighting over something that really in the end analysis doesn’t matter, money. Okay. That’s just preponderance. That’s where each side is putting pennies on a scale and whoever gets it to tip wins. In other words, 51 percent probability, probably. So if you are kicking around a word like probably back there, that’s a not guilty. You are talking about preponderance. [¶] Okay. Next level is clear and convincing. Means just what those words mean. And that’s the burden placed on the state when they want to terminate parental rights. Thank about what clear and convincing means to you. Okay. And consider whether the -- the evidence in this case is clear and convincing, even. And know that reasonable doubt is higher than that. It’s a better standard then clear and convincing. That’s -- that gives you some context for what reasonable doubt is all about. [¶] And Mr. Good said that beyond a reasonable doubt is much higher than clear and convincing. And it is. And we’ll talk about that later. [¶] And why is the standard that high? Because there is no greater tragedy in our system of government and law, that a person who did not commit a crime gets convicted of one. [¶] Okay. That’s -- that’s the burden. There it is in black and white.”
Later in the argument, Brooks’s counsel attempted to give a dictionary definition for “abiding” and the court sustained an objection. The court admonished the jury: “You are not supposed to discuss that. The jury instruction is what it is. Your interpretation is up to you.” Brooks’s counsel went on, “Okay. Mr. Good defined it as enduring. All right. It means lasting. [¶] And what it means is, Mr. Good said, this is that -- this instruction, the reasonable doubt instruction, does not require certainty. That’s -- that’s a misstatement. It’s all about certainty. The issue is what level of certainty does the evidence have to cause you to attain. It is about certainty. It’s about the quality of that certainty. It’s got to be about certainty. And the level of certainty is -- is that you -- you’ve got to ask yourself, do I have an abiding conviction of the truth of the charge? Is it lasting? Is it enduring?
In rebuttal, the People responded to the defendant’s suggestion that his focus on the reasonable doubt instruction indicated some question about the strength of his case: “Mr. Nowack said my case is so great why did I spend 30 percent of my time on the reasonable doubt instruction. Well, possibly because Mr. Nowack spent a great deal of his time on that in his voir dire saying over and over again that this is the highest standard possible. . . . It is not certainty. [¶] And when Mr. Nowack said at the close of his argument, you have to be certain, that just is not true. You -- look at that reasonable doubt instruction. And I won’t put it up again. If certainty is mentioned in that instruction, I’ll eat the instruction. It is not in there, nor does it say you have to be sure somebody is guilty.” The People stated “This is not about certainty. This is about people making important decisions with a very high standard. But it’s not certainty and it’s not perfection.”
Brooks also points out that, during voir dire, the court sought the assurance of the prospective jurors that “if you are selected as a juror in this matter, you will hold the prosecution to that burden, nothing higher, nothing lower.”
Brooks argues that the People’s argument regarding its burden of proof minimized the quantum of proof required by the Fourteenth Amendment and under In re Winship (1970) 397 U.S. 358. He also contends, citing People v. Medina, supra, 11 Cal.4th at page 745, that the People’s use of a chart to describe the burden of proof created a false impression that utmost certainty is not needed before a defendant is declared guilty. Finally, citing Cage v. Lousiana (1990) 498 U.S. 39 and Victor v. Nebraska (1994) 511 U.S. 1, 20, he argues that the People’s closing argument overstated the doubt necessary to acquit.
We note, first, that Brooks did not object to any of the People’s statements regarding the burden of proof nor request an admonition from the trial court. Having failed to do so, defendant’s claim of prosecutorial misconduct is waived. (People v. Hill (1998) 17 Cal.4th 800, 820 [defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety].) Nor is it the case, as defendant argues, citing People v. Johnson (2004) 119 Cal.App.4th 976, 984, that “even in the absence of an objection the accused has a right to appellate review of any instruction that affects his or her substantial rights. [Citations.]” Here, defendant is not asking for review of an instruction but, rather, is complaining of prosecutorial misconduct. We also reject defendant’s argument that an objection would have been unavailing. The trial court at no point indicated an unwillingness to entertain such an objection. To the contrary, the trial court sustained defendant’s objection to certain language contained in the chart used by the People to illustrate the burden of proof.
Nevertheless, in anticipation of an alternative claim that counsel was ineffective for failing to object to the People’s argument, we address the issue of whether the People committed misconduct in statements it made during closing argument regarding the burden of proof.
In general, “‘it is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]” (People v. Hill, supra, 17 Cal.4th at pp. 829-830, quoting People v. Marshall (1996) 13 Cal.4th 799, 831.)
When a statement by the prosecutor is challenged as misconduct, we examine the prosecutor’s statement in the context of the whole argument and all the instructions in order to determine whether there is a reasonable likelihood the jury construed or applied the statement in an objectionable way. (People v. Hill, supra, 17 Cal.4th at p. 832; People v. Morales (2001) 25 Cal.4th 34, 44.) “The court’s instructions are determinative in their statement of law, and we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70; Boyde v. California (1990) 494 U.S. 370, 384.) “Juries are warned in advance that counsel’s remarks are mere argument, missteps can be challenged when they occur, and juries generally understand that counsel's assertions are the ‘statements of advocates.’ Thus, arguments should ‘not be judged as having the same force as an instruction from the court. . . .’” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21; Boyde v. California, supra, at pp. 384-385.) “This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court. And the arguments of counsel, like the instructions of the court, must be judged in the context in which they are made.” (Boyde v. California, supra, at pp. 384-385.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) “[W]e cannot focus exclusively on a few erroneous words . . . and then reverse the conviction unless it is ‘reasonably likely’ that the jury applied the erroneous standard described or implied by those few words. We must examine the overall charge that the jury heard for a better view of the standard the jury took into its deliberations and applied.” ( Chalmers v. Mitchell (2nd Cir.1996) 73 F.3d 1262, 1267; United States v. Park (1975) 421 U.S. 658, 674-675.)
In closing argument, the People devoted an extraordinary amount of time to a discussion of the reasonable doubt standard. Setting aside the issue of whether the People misstated the applicable legal standard, we are particularly struck by the trial court’s refusal to exercise any control over the time expended by the People in essentially instructing the jury on the law. Although counsel may certainly describe the applicable law, at some point, counsel’s efforts to paraphrase the law begin to usurp the trial court’s function to inform the jury of the law. The risk in allowing counsel to give the jury the equivalent of a lecture on the reasonable doubt standard is, at a minimum, the possibility that the jury will find it difficult to bear in mind that the law is articulated in the trial court’s instructions rather than in counsel’s argument. At worst, when the trial court gives counsel the freedom to expound upon the law to the extent seen in this case, the court introduces into a trial the possibility that counsel will misstate the law.
In addition, a great deal of time was devoted in voir dire to the reasonable doubt standard. After the trial court informed the jury of the appropriate standard, first the People, and then defendant, questioned the jury at length on their ability to apply this standard. In so doing, both the People and defendant paraphrased the standard, a practice that strikes us as straying uncomfortably into the court’s function to explain the law to the jury.
A situation such as this requires the trial court intervention. (See, e.g., People v. Valenzuela (1977) 76 Cal.App.3d 218, 221-222 [“the judge must always be alert to the possibility that counsel in the course of argument may have befuddled the jury as to the law”]. The People’s discussion of reasonable doubt could certainly have been shortened without intruding on counsel’s right to argue the facts and the law to the jury. Similarly, defendant’s extensive discussion of the standard could also have been reigned in. Although in this case the consequence of the trial court’s inattention to this important matter is not reversible error, it is only a matter of time before another unedited, lengthy excursion into the law results in the sort of misstatement of the law that results in prejudicial error.
Nevertheless, although we are concerned about the trial court’s reluctance to exercise its responsibility to curtail the People’s meandering and lengthy description of the reasonable doubt standard, we cannot find error because the People did not misstate the applicable law. Although defendant attacks the People’s use of the word “certainty” in describing the burden of proof, there is nothing in the record that suggests the People told the jury that the law permitted them to convict Brooks even if they were uncertain about his guilt.
Relying on People v. Garcia (1975) 54 Cal.App.3d 61 and People v. Smith (1913) 164 Cal. 451, 463, as well as a federal case, United States v. Chilingirian (6th Cir. 2002) 280 F.3d 704, 711, Brooks argues that the People’s description of “reasonable doubt” as a “doubt based on a reason,” misstates the law. These cases, which do not concern prosecutorial discussions of the reasonable doubt standard, but rather with instructional error, are unavailing. In Garcia, supra, 54 Cal.App.3d 61, the trial court gave the jury a substantially expanded, erroneous definition of reasonable doubt. Here, of course, the trial court properly instructed the jury on its burden of proof. In Smith, the court criticized an instruction in which the court told the jury “‘A doubt to justify an acquittal must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case. If, after considering all the evidence, you can say that you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt.’” (People v. Smith, supra, 164 Cal. at p. 463.) The Smith court pointed out that other courts had “criticised and condemned” a “like instruction” and noted that the instruction did not improve on the long-approved instruction on reasonable doubt in use by other courts of that era.
Here, in contrast, the court gave the proper reasonable doubt instruction and did not stray from the approved language of the instruction. Read in the context of the entire argument, we find no reasonable likelihood that the jury understood these remarks to mean that the People’s burden of proof was lessened or that it was not beyond a reasonable doubt. In addition, even if this was improper argument, it was dispelled by the court’s proper instructions on the concept of reasonable doubt, by the fact that defendant also was permitted to argue the standard at great length, and the court’s reminder that what the attorneys said was not evidence and that, in case of conflicts, the jury must follow the law as given by the court. It is presumed it followed these instructions. (People v. Frank (1990) 51 Cal.3d 718, 728, People v. Bryden (1998) 63 Cal.App.4th 159, 184.)
Although Brooks makes reference to statements the court made during voir dire regarding the burden of proof, and questions to jurors regarding their ability to apply that burden in this case, there is not the slightest suggestion that the court did anything other than properly instruct the jury on the reasonable doubt standard.
G. Griffin Error
During opening argument, the People stated as follows: “The Defendant is the robber who put a gun to her face, who shoved her into the bathroom, who paced in front of the bathroom for a couple minutes. He was hiding behind a mask then. And in a way he’s still hiding behind the mask. He’s telling you that I covered my face, they couldn’t see my whole face, you can’t find me guilty. Don’t reward him for his use of the mask. Use your logic. Use your common sense. And tell him, no, he’s wrong. We can still identify you, Mr. Brooks, even though you used a mask, because that would be justice.
Counsel objected to this statement as error under Griffin v. California (1965) 380 U.S. 609. The court denied the motion, explaining that it did not hear the statement as a reference to the fact that Brooks did not testify.
Outside the presence of the jury, defendant moved for a mistrial:
Griffin error occurs when the prosecution or the court comments, either directly or indirectly, upon a defendant’s failure to testify. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) A prosecutor, however, may comment on the state of the evidence or the defendant’s failure to call logical witnesses or introduce material evidence. (Ibid.) On appeal, we ask whether there is a “reasonable likelihood” that the jurors understood the comments to be a reference to the defendant’s failure to testify. (People v. Roybal (1998) 19 Cal.4th 481, 514.)
The People’s comment about the mask Brooks wore during the robbery was a comment on the state of the evidence. The statement that “in a way he’s still hiding behind the mask” was immediately followed by a statement that referred to Brooks’s argument that Asoau could not identify him as the robber because she could not see his face: “He’s telling you that I covered my face, they couldn’t see my whole face, you can’t find me guilty. Don’t reward him for his use of the mask. Use your logic. Use your common sense. And tell him, no, he’s wrong. We can still identify you, Mr. Brooks . . . .” There is no reasonable likelihood that the jury understood these statements as anything other than a discussion of whether they could convict Brooks despite the fact that he wore a mask during the robbery.
The cases cited by Brooks in support of this argument do not assist him. In all of them -- People v. Modesto (1967) 66 Cal.2d 695, 711, overruled on other grounds in Maine v. Superior Court (1968) 68 Cal.2d 375; People v. Murtishaw (1981) 29 Cal.3d 733, 957-758, overruled on other grounds in People v. Boyd (1985) 38 Cal.3d 762; and People v. Vargas (1973) 9 Cal.3d 470, 476 -- the People directly commented on the defendant’s silence at trial. In contrast, the comments made by the People here were not about Brooks’s silence, but about the fact that he had worn a mask during the robbery, and that, despite his effort to mask himself, defendant could still be found guilty. We find no Griffin error.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
“Mr. Nowack talked about something in his voir dire, and he points out correctly, that reasonable doubt is the highest standard under the law. But then he was saying things like it’s the highest standard possible. So I -- I am respectfully disagreeing with that. Reasonable doubt is not the highest standard possible. Our founding fathers, the legislature, could have said before you can find somebody guilty of a crime, you have to be certain they are guilty. They didn’t say that. They could have said before you can find somebody guilty of a crime, you have to be convinced beyond any shadow of a doubt. They didn’t say that. It’s not the highest standard possible. All these are higher. [¶] Guilty to a hundred percent level of certainty, no. Assured guilty, no. Guilty beyond all possible doubt, no. All imaginary doubt, no. Beyond a shadow of a doubt, no. They didn’t even say, really, really, really guilty beyond a reasonable doubt. It’s guilty beyond a reasonable doubt, which is a very high standard, I certainly agree. It’s the highest under the law. But it’s not certainty. It’s not impossibility. It’s a standard that our country has come up with that balances a couple thing. [¶] I would submit it balances the fact that you don’t ever want to convict an innocent man of something. So it’s a very high standard. Versus the fact that you need to be able to convict the guilty. And so it can’t be certainty. So society would fall apart if the guilty people never get convicted. [¶] So we picked a very high standard, but it’s not certainty, it’s not perfection. It’s way more than clear and convincing evidence. It’s way more than preponderance. It’s not the highest standard possible, I mentioned that. It’s a common sense, reasonable standard. Designed to protect the innocent. It’s not impossible. It’s employed by juries all over this country for years. [¶] And it is rather subjective. So this is what it is, it’s presumed innocent until the contrary is proved. In the case of a reasonable doubt, he’s entitled to a verdict of not guilty. Presumption places on the -- on the People the burden of proving him guilty. [¶] Reasonable doubt is defined as follows: Okay, here is my little talk on reasonable doubt. It’s about a five step process that I suggest, and you are totally free to ignore my suggestions. But one, when you think about what a reasonable doubt is -- let’s talk about what a reasonable doubt is not, step one. It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. Means it’s not an imaginary doubt. [¶] See, if you are saying, well, it’s possible there could be a second dreadlock wig, it’s possible there could be a second blue jacket, I would submit you are not on reasonable doubt land. It’s the state of the case, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in the condition they cannot say they feel -- should be feel, not fell -- an abiding conviction of the truth of the charge. [¶] I want to underline entire. All the evidence. In other words, if it’s clear you are not supposed to do this thing piecemeal. You are not supposed to look at one factor, say oh well, the jacket could have been this. I’ve got reasonable doubt about that. Let’s look at this, could have been that. You have to look at everything together and ask, do you have a reasonable doubt if the Defendant is the robber. [¶] So my first step was what it’s not, okay. What is a reasonable doubt then? Step 2, if a reasonable doubt is anything, it’s a doubt based on a reason. It’s not some vague, unarticulable hunch. So if you are in the jury room and you can say I -- I don’t have a reason for this, but there is something about this case, I can’t find him guilty. I would suggest that’s not a reasonable doubt. You have to have a reason, okay. So identify a reason. [¶] Three, if you’ve identified a reason, and make sure that the reason is one the law recognizes. If reason for your doubt is that you are worried about punishment, what kind of punishment he might get, worried about his family, whatever, that’s not something you can consider. So that’s not a reasonable doubt. [¶] Okay. Step four, if you found your reason and it’s one the law recognizes, it’s hopefully a doubt based on the evidence or lack of evidence. So -- and step four, I suggest, that if the -- if your doubt is due to a conflict in the evidence, you try to resolve the conflict and you decide what really happened. Find the facts. You find the facts and then you see if you have a reasonable doubt. [¶] and then the last step is, I think I said you have to look at all the evidence, not piecemeal the thing. [¶] And then this other word, abiding is an important word too. You cannot say you feel an abiding conviction of the truth of the charge. Well, what does abiding mean? I would suggest it means things like long lasting, enduring. Doesn’t mean certainty. Doesn’t say they cannot say they feel a forever conviction of the truth of the charge. It does not say you feel absolutely forever and ever with regard to the truth of the charge. [¶] Last thing I’d say about reasonable doubt, it’s not science. It’s more social science. It’s a real world, where human decisions got to be made based on common sense and courage.
“MR. NOWACK: . . . Mr. Good said during his opening statement that Mr. Brooks is still hiding behind a mask. That was a reference to the fact that Mr. Brooks has not testified in this trial and that is Griffin error. And I’m making a motion for a mistrial based on that statement.
“THE COURT: Mr. Good, any response?
“MR. GOOD: That never occurred to me. I’m talking about the mask he was wearing in the – in the case. Never occurred to me I was commenting on his lack of testimony. And I had no intention of – and I don’t think anybody would ever think about that. I’m talking about the piece of fabric he had over his face. Nothing to do with whether he testified or not.
“THE COURT: All right.
“MR. NOWACK: Mr. Good didn’t say he was hiding under the mask during the robbery. Said he was hiding under the mask during the robbery and is still hiding behind a mask. And that was a reference to the fact that he is – he has not testified.
“THE COURT: Matter submitted?
“MR. GOOD: Yes.
“MR. NOWACK: Yes.
“THE COURT: Certainly not the way I heard it, but the motion is – it’s on the record. It’s denied.
“MR. NOWACK: And for the record, I did not object and ask an admonishment in front of the jury because I didn’t want to draw more attention to it.”