Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. TA084953, Kevin Filer, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
Appellant Andrew Cook appeals from his conviction on one count of second degree robbery. He contends the prosecutor alluded to his failure to testify during closing argument and thereby committed misconduct and violated Griffin v. California (1965) 380 U.S. 609 where the United States Supreme Court held: “[T]he Fifth Amendment, in its direct application on the Federal Government, and in its bearing on the states by reason of the Fourteenth Amendment, forbids . . . comment by the prosecution on the accused’s silence . . . .” (380 U.S. at p. 615). Appellant also contends that the trial court erred in imposing an upper term sentence based on facts not submitted to the jury or found true beyond a reasonable doubt. We conclude that no misconduct or error occurred and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged by information with one count of second degree robbery (Pen. Code § 211). The information further alleged that the offense was a violent felony within the meaning of section 667.5, subdivision (c) and a serious felony within the meaning of section 1192.7, subdivision (c), and that for purposes of section 667.5, subdivision (b) appellant had suffered a prior conviction for stalking (§ 646.9), had served a prison term, and had not remained free of prison custody for five years.
Statutory references herein are to the Penal Code.
B. Evidence at Trial
On May 30, 2006, around 11:00 p.m., Ceasar Hernandez was walking home from the Green Line train station near Wilmington and Imperial Highway in Los Angeles. While he walked, he was talking on his cell phone. Appellant approached Hernandez and asked to borrow the phone to call his mother, claiming the girl or woman he was with was pregnant. Hernandez did not believe appellant and started to walk away. Appellant hit Hernandez in the face. Hernandez fought back. During the scuffle, Hernandez was dragged to the ground by appellant and dropped the phone. While Hernandez was on the ground, appellant tried to kick and hit him. Appellant then picked up Hernandez’s phone and began to run toward the train station.
A third man, Eduardo Melendez, approached Hernandez and offered to help get his phone back. Seeing them approach, appellant grabbed his waistband under his shirt as if he had a weapon and said: “Get away.” Nonetheless, the two continued to approach appellant. Appellant extended his hand as if he were going to give the phone back, but instead swung at Hernandez and ran again, this time toward a sheriff’s station or “rail operations center” attached to the train station.
When appellant got near the sheriff’s station, he either dropped the phone or handed it back to Hernandez. Hernandez and Melendez continued toward appellant. Deputies emerged from the station and told them all to stop. Appellant ran, but was taken into custody. Hernandez and Melendez spoke to the deputies about what happened, and later to Los Angeles Police Department (LAPD) officers.
Los Angeles County Sheriff’s Deputy Jorge Chavez, one of the deputies assigned to the sheriff’s station, observed an altercation involving appellant and two other men, Hernandez and Melendez. At the time, appellant was backing up and the two other men were advancing toward him. Deputy Chavez and his partner yelled at them to stop. Hernandez and Melendez did as instructed, but appellant ran away. Deputy Chavez gave chase and captured him. After talking to Hernandez and Melendez, the deputies took appellant into custody but did not formally arrest him. Instead, they turned him over to LAPD officers because the incident occurred inside LAPD jurisdiction.
The prosecutor attempted to ask Deputy Chavez whether appellant had said anything to him after being taken into custody. Defense counsel objected based on Doyle v. Ohio (1976) 426 U.S. 610 (Doyle), where the United States Supreme Court held: “[T]he use for impeachment purposes of [defendant’s] silence, at the time of arrest and after receiving Miranda [v. Arizona (1966) 384 U.S. 436] warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” (426 U.S. at p. 619). The objection was sustained.
The defense introduced appellant’s booking photograph, which appeared to show bruises on his face.
C. Pertinent Jury Instructions and Argument
The court instructed the jury not only on the elements of robbery, but also on the lesser included offenses of grand theft and petty theft.
During opening argument, defense counsel informed the jury that although Hernandez would say that appellant attacked him and took his cell phone, the only injuries suffered that night were by appellant, and that the evidence would show appellant ran toward law enforcement officials.
During an early part of his closing argument, the prosecutor attempted to define “reasonable doubt” and “abiding conviction” to the jury in the following manner: “[I]f [after the trial is concluded] you said . . . I really believe that [Hernandez] got punched in the face, there was nothing to show me anything else other than the fact that [Hernandez] got punched in the face and his phone was taken from him, then you’ve reached that abiding conviction. Because that’s really all it is. ¶ It’s just a belief in what was presented, a belief in the facts. And ladies and gentlemen, there hasn’t been anything presented to you to show you anything else took place other than the fact that [Hernandez] got punched in the face.” Defense counsel interposed an objection. The court overruled the objection. The prosecutor, concluding for the moment this line of argument, stated: “You haven’t been shown any other facts. Those are the facts.”
In making the objection, defense counsel referred to Doyle, supra, 426 U.S. 610. Later, counsel explained that the objection was also based on Griffin, supra, 380 U.S. 609.
Later, in discussing the evidence that appellant alone tried to run away when the trio was approached by the deputies outside the sheriff’s station, the prosecutor stated: “And . . . not only did [Hernandez and Melendez] stop, they related what took place to the police. And . . . in relating that, the police then brought the [appellant] back. And so he was arrested based on what they had to say. ¶ There’s no other information before you and there was no other information given to the police that day that anything different happened. ¶ No one else said anything else happened other than the defendant punched . . . the victim in the face -- and that is the prime time for some other information to be presented to the police. If there’s an alternative version of what took place, right then and there, it should have been presented.” Defense counsel again objected, and the court again overruled the objection. The prosecutor continued: “Right then and there that information should have been presented. You don’t have any other information other than what the victim and the witness told you.”
During a bench conference, defense counsel expounded further on her objections: “[The prosecutor’s argument] that [appellant] didn’t say anything to the police after he was arrested. I think that that’s Doyle error, and [the contention] that [appellant is] not telling another story is Griffin error.” The court disagreed: “I didn’t hear [the prosecutor] say that [appellant] didn’t tell a story . . . I’m assuming that there were other witnesses. . . . And I just heard him argue that no one else came forward . . . .” Later, the court further explained: “Had [the prosecutor] made any reference to the fact . . . there’s only one other person who was there[,] [w]e didn’t hear from him, then I think that would have crossed the line.”
D. Deliberations and Verdict
After a few hours of deliberation, the jurors informed the court that they were hung on the robbery charge but had reached a verdict on the lesser included offenses of petty theft and grand theft. The court reminded them the verdict form for the lesser included offenses could not be completed unless and until the jury reached a not guilty verdict on the robbery charge. After further deliberations, the jury found appellant guilty of second degree robbery as charged in the information.
E. Sentence
Appellant admitted the prior. The court struck it and sentenced him to the high term of five years for the robbery because “[appellant] was on probation at the time the crime was committed”; “[his] prior performance on probation has been unsatisfactory”; and “he’s engaged in violent conduct increasingly, which indicates he’s a serious danger to society.”
DISCUSSION
A. Prosecutorial Misconduct/Griffin Error
Appellant contends the prosecutor committed misconduct by making the comments quoted above during closing argument. Appellant asserts that the prosecutor’s comments represented a clear violation of Griffin, and its holding that the Fifth Amendment “forbids . . . comment by the prosecution on the accused’s silence . . . .” (Griffin, supra, 380 U.S. at p. 615.)
Griffin error occurs where the prosecutor makes direct reference to the defendant’s failure to testify, for example, where the prosecutor comments during closing argument about “[the] things [the defendant] has not seen fit to take the stand and deny or explain.” (Griffin, supra, 380 U.S. at p. 611.) Griffin error can also be found where the reference to the defendant’s failure to testify is indirect or veiled. In People v. Hughes (2002) 27 Cal.4th 287, the California Supreme Court explained: “[I]t is [Griffin] error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] . . . It is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide.” (People v. Hughes, supra, 27 Cal.4th at pp. 371-372; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1339.)
See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 154 [prosecutor’s statement during argument that jurors should “‘ask [themselves] the question, why doesn’t [defendant] just come out and say, I didn’t do it, it was Cliff’” was Griffin error].
See, e.g., People v. Vargas (1973) 9 Cal.3d 470, 474, 476 [prosecutor’s comment that there had been no “‘denial’” that defendant was at scene of crime improper where such comment “connote[d] a personal response by the accused himself” because “only defendant himself could ‘deny’ his presence at the crime scene”]; People v. Modesto (1967) 66 Cal.2d 695, 711, disapproved on another ground in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, footnote 8 [Griffin error found where prosecutor stated that defendant was only person who could explain presence of blood found on his person, and he was “‘just sitting’” in courtroom]; People v. Medina (1974) 41 Cal.App.3d 438, 457-460 [prosecutor committed Griffin error by pointing out there were five percipient witnesses to crime, including the two defendants, and only three of them “‘were subjected to cross-examination’” or “‘put under oath’” or “‘subject to perjury’”].
But comments that merely reference the absence of defense evidence do not constitute Griffin error. “A prosecutor is permitted . . . to comment on a defendant’s failure to introduce material evidence or call logical witnesses. [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 554 [prosecutor “direct[ed] the jury’s attention to the fact defendant never presented evidence that he was somewhere else when the crime was committed”].) Pointing out the defense’s failure to present exculpatory evidence where such evidence is available and the instructions and argument make clear that defendant had no burden of establishing his innocence is not Griffin error. (People v. Ratliff (1986) 41 Cal.3d 675, 690-691 [prosecutor’s statements that “[no evidence] has been presented to you [by the defense]” and “[a]bsolutely zero has been presented to you by [the defendant] and his attorney” not error where “[n]one of the prosecutor’s remarks suggested that defendant had a burden of proof which he failed to carry, and the court’s jury instructions confirmed that the People had the entire burden of establishing defendant’s guilt”].)
See, e.g., People v. Hughes, supra, 27 Cal.4th at page 373 [questions prosecutor posed to jury -- “‘Where is there a single piece of evidence that . . . something snapped because [defendant and victim] were surprised at [seeing] each other . . . ? Where is there evidence of that? Where is there a witness to testify to that? Where is there a piece of physical evidence to suggest that?’” -- represented “proper fair comment on the state of the evidence” (italics omitted)]; People v. Bradford, supra, 15 Cal.4th at page 1339 [brief comments by prosecutor during closing argument “noting the absence of evidence contradicting what was produced by the prosecution on several points, and the failure of the defense to introduce material evidence or any alibi witnesses . . . cannot fairly be interpreted as referring to defendant’s failure to testify”].
Here, the prosecutor, in the only comments appellant contends can be construed as relating to his failure to testify, stated to the jurors that “there was nothing to show [you] anything else other than the fact that [Hernandez] got punched in the face and his phone was taken from him”; “there hasn’t been anything presented to you to show you anything else took place other than the fact that [Hernandez] got punched in the face”; “[y]ou haven’t been shown any other facts”; and “[y]ou don’t have any other information other than what the victim and the witness told you.” These comments did not highlight appellant’s failure to testify; they merely referenced the absence of evidence to contradict the prosecution witnesses.
Appellant seeks to rely on People v. Guzman (2000) 80 Cal.App.4th 1282 to support his contention that the comments made were improper. There, the prosecution’s case was based on the theory that the defendant was the aggressor in an altercation that began with a traffic collision and ended with the alleged victim being attacked with a hammer. The defense asserted that the defendant was acting in self-defense, although he did not take the stand. A prosecution witness testified that she saw the defendant shortly after the incident and he claimed he had been walking to the store “when some guys jumped him and beat him up,” saying nothing about the collision or the victim. During closing argument, the prosecutor pointed out that the victim behaved more responsibly than defendant by “‘wait[ing] for the police, tell[ing] them what happened, com[ing] to court to testify 2 times’”; “‘subjecting himself to professional cross examination more than once’”; and “‘putting himself under oath with a court.’” (80 Cal.App.4th at pp. 1286-1287.) He also pointed out that the defense presented no explanation for why the defendant lied to the witness and to the police about the location of the hammer. (Id. at pp. 1286, 1287.)
Noting that “prosecutors must walk a fine line when treading in this area” and that they may “call attention to the defense’s failure to put on exculpatory evidence, but only if those comments are not aimed at the defendant’s failure to testify and are not of such a character that the jury would naturally and necessarily interpret them to be a comment on the failure to testify,” the court in Guzman found that “the prosecutor went beyond general commentary on the defense’s failure to present exculpatory evidence.” (People v. Guzman, supra, 80 Cal.App.4th at p. 1289.) “[B]y virtue of his comparative paradigm, the prosecutor rather clumsily alerted the jury to the fact that, unlike [the victim], [the defendant] was not willing to explain his side of the story in court. Moreover, by telling the jury that [the victim] was ‘responsible’ because he testified, the prosecutor insinuated that [the defendant] was irresponsible and ‘criminal’ because he failed to do so.” (Id. at p. 1288.) In addition, by emphasizing that there was no defense explanation for why the defendant lied to the witness or the police, the prosecutor emphasized “holes in the defense case that only [the defendant] could fill,” thereby “naturally and necessarily dr[awing] the jury’s attention to the fact that [the defendant] did not take the stand.” (Id. at p. 1289.) The court concluded: “This is Griffin error plain and simple.” (Ibid.)
We do not agree that Guzman is pertinent or that the prosecutor crossed the line here. The prosecutor repeatedly reminded the jury that they had been given no information other than the facts testified to by Hernandez and Melendez, but this did not necessarily lead the jury to contemplate holes in the defense case that only appellant could fill by his own testimony. Countervailing evidence could have come from any other witness present at the scene that night, such as the girl or woman who was seen with appellant. The present situation is more analogous to that in People v. Stewart (2004) 33 Cal.4th 425. There, the prosecutor, while explaining the meaning of reasonable doubt to the jury, challenged defense counsel to give a reasonable explanation of the evidence that did not point to the defendant’s guilt and stated: “‘And there is but one reasonable interpretation. We didn’t hear another reasonable interpretation. It was conspicuous in its absence.’” (Id. at p. 505.) The Supreme Court found the comments unobjectionable because “the prosecutor merely anticipated the failure of defense counsel -- not defendant -- to provide to the jury a reasonable explanation consistent with defendant’s innocence [and] . . . commented on defense counsel’s argument as having failed to suggest to the jury such an interpretation of the evidence. This was permissible argument based on the state of the evidence . . . .” (Id. at pp. 505-506.) Here, too, the prosecutor, in attempting to explain reasonable doubt, argued that in the absence of contradictory evidence from the defense, the jury should find that the People had met their burden of proof. It is not reasonably probable that the jurors were misled by the comments into drawing an improper inference regarding appellant’s failure to testify. Thus, the prosecutor’s comments were appropriate in context and did not constitute Griffin error.
Defense counsel referenced Doyle several times below but appellant’s brief on appeal includes no argument based on its holding that the prosecution should not comment on the post-arrest silence of a suspect who was given Miranda warnings. Although Doyle involved an attempt to cross-examine defendants concerning their failure to give police officers the innocent explanation for their actions related on the witness stand, it is clear that Doyle error can also occur where the prosecutor refers to post-arrest silence in argument. (People v. Evans (1994) 25 Cal.App.4th 358, 368; People v. Lewis (2004) 117 Cal.App.4th 246, 256.) A number of the prosecutor’s comments quoted in appellant’s brief here -- the remarks that Hernandez and Melendez stopped when ordered to do so and “related what took place to the police” and that “there was no other information given to the police that day that anything different happened,” even though “that [was] the prime time for some other information to be presented to the police” -- appeared to be addressed to appellant’s failure to speak to law enforcement personnel, a potential violation of Doyle, not Griffin. Had appellant raised a Doyle argument, however, such argument would have lacked merit. There was no evidence that appellant had been read his Miranda rights at the time he was in the custody of the deputies and subjected to their preliminary questions. (See People v. O’Sullivan (1990) 217 Cal.App.3d 237, 244 [“[I]f no Miranda warning has been given, evidence of the accused’s silence is admissible to impeach a defense offered for the first time at trial.”]; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842 [“It is . . . clear that where Miranda warnings have not been given, . . . Doyle error is not committed by questions or commentary concerning a defendant’s post-arrest silence.”].) Moreover, “[a] violation of due process does not occur where the prosecutor’s reference to defendant’s postarrest silence constitutes a fair response to defendant’s claim or a fair comment on the evidence.” (People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) Here, defense counsel highlighted in argument and in cross-examining the witnesses that appellant, not Hernandez, displayed evidence of injury after the confrontation and that appellant had ran toward the sheriff’s station when approached by Hernandez and Melendez. Because the defense attempted to create the impression that appellant was under attack and seeking the assistance of law enforcement personnel, the prosecutor’s argument that appellant said nothing to the deputies was a fair comment on the evidence.
B. Upper Term Sentencing
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (530 U.S. at p. 490, italics added.) In Blakely v. Washington (2004) 542 U.S. 296, the court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely, supra, 542 U.S. at p. 303.) In Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], the held that California’s determinate sentencing law (DSL) violated a defendant’s federal constitutional right to a jury trial by permitting the trial judge to make factual findings that subjected the defendant to an upper term sentence. (Id. at p. __ [127 S.Ct. at p. 871].) The court found that the middle term prescribed in California’s DSL, not the upper term, was the relevant statutory maximum for purposes of determining the constitutionality of a sentence imposed. (Ibid.) Based on these authorities, appellant contends that the trial court erred in imposing the upper term sentence for the robbery offense.
Cunningham, along with Blakely and Apprendi, were the subject of our Supreme Court’s decision in People v. Black (2007) 41 Cal.4th 799 (Black II), in which the court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at pp. 812, 813.) In other words, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, . . . the upper term sentence is the ‘statutory maximum,’” and “judicial fact finding on . . . additional aggravating circumstances is not unconstitutional.” (Id. at pp. 813, 815.)
Apprendi, Blakely, and Cunningham all recognized that the fact of a prior conviction represents an exception to the rule that facts used to increase a sentence must be submitted to the jury or proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 873].) Our Supreme Court has said that the prior conviction or recidivism exception “is not limited simply to the bare fact of a defendant’s prior conviction.” (People v. McGee (2006) 38 Cal.4th 682, 704, italics omitted.) Apprendi “does not preclude a court from making sentencing determinations related to a defendant’s recidivism” (id. at p. 707), but instead permits “‘the type of inquiry that judges traditionally perform as part of the sentencing function.’” (Id. at p. 705, quoting People v. Kelii (1999) 21 Cal.4th 452, 456.)
Consistent with this view, California courts have interpreted the prior conviction or recidivism exception broadly to include all “matters relating to ‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221 [applying exception to judicial finding that defendant had served prior prison terms]; accord, People v. Velasquez (2007) 152 Cal.App.4th 1503, 1514-1515 [applying exception to judicial finding that defendant had served prior prison term and that his prior adult convictions were numerous].) In Black II, the court agreed with this line of authority, holding that a jury need not be asked to decide whether a defendant’s prior convictions were numerous or of increasing seriousness because determination of the number, dates, and relative seriousness of prior convictions was a “type of determination . . . ‘quite different from the resolution of issues submitted to a jury, and . . . one more typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820, quoting People v. McGee, supra, 38 Cal.4th at p. 706.) In People v. Yim (2007) 152 Cal.App.4th 366, 371, the court specifically held that the defendant’s parole status and performance on parole are recidivism-related matters and thus fall under the exception.
Here, the trial court cited the following factors to support its sentencing choice: “[appellant] was on probation at the time the crime was committed”; “[his] prior performance on probation has been unsatisfactory”; and “he’s engaged in violent conduct increasingly, which indicates he’s a serious danger to society.” All these factors are related to recidivism. Accordingly, we conclude that none of the factors used by the court to justify appellant’s sentence required a jury trial, and the sentence imposed does not violate appellant’s constitutional rights to due process and trial by jury.
According to the probation report, in 2003 appellant was convicted of petty theft; at different times in 2004 he was convicted of petty theft, possession of marijuana for sale, and assault; in 2005 he was convicted of stalking and sentenced to two years in state prison; in 2006 he was convicted of possession of marijuana and placed on three years’ formal probation.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., WILLHITE, J.