Opinion
C088038
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE GARDNER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17-CR-26594)
Defendant Willie Gardner appeals a judgment entered after a jury found him guilty of custodial possession of a weapon (Pen. Code, § 4502, subd. (a)) and the trial court found true the special allegation that he had suffered three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). His arguments on appeal may be grouped into three categories: (1) defendant's trial counsel rendered ineffective assistance of counsel for failing to object to alleged prosecutorial misconduct; (2) the trial court erred prejudicially in instructing the jury with CALCRIM No. 362 because no prior false statement was admitted at trial; and (3) the trial court erred in imposing fines and fees without assessing defendant's ability to pay them. We affirm the judgment.
Undesignated statutory references are to the Penal Code.
BACKGROUND
This case arose from a March 2017 search of defendant's person while he was serving time in state prison. The primary issue for the jury was whether to believe the correctional officers, who testified to finding an inmate manufactured knife hidden in defendant's soft cast, or defendant, who maintained that the knife was planted by the officers. We briefly recount the relevant testimony of the four officers and defendant. Further details will be provided as needed in the discussion of defendant's claims, infra.
A. The People's Case
Correctional Officer Ryan Colby testified to responding to a call for help with a resisting inmate. He observed defendant engaged in a physical altercation with Officer Barton, who was trying to put "flex cuffs" on defendant due to the soft cast on his right arm. After defendant was secured with restraints, Officer Barton performed a clothed body search, which revealed no contraband. They did not search defendant's cast to avoid injuring his arm. Defendant was taken for medical clearance and then to Sergeant David Brunkhorst's office for further questioning. While there, Officer Colby used a handheld metal detector and the wand alerted to defendant's cast. Officer Colby asked what was in the cast, but he did not hear defendant answer. Simultaneously, defendant began resisting. Officer Colby secured defendant against the wall, and defendant stopped resisting. Officer Colby then "retrieved an inmate manufactured deadly weapon from his soft cast." It had a cap on the sharp end to protect the carrier from injury. This weapon was presented to the jury. Officer Colby testified that he did not plant a weapon on defendant, nor participate in a conspiracy to set defendant up. He also did not know that defendant ostensibly had a metal screw in his arm from a surgery.
Officer Colby admitted that his report erroneously stated that the search was "unclothed," but testified that the remainder of his report was accurate.
Correctional Officer Jarret Scheurer testified to responding to a resisting inmate call and saw defendant already restrained on the ground when he arrived. Officer Barton performed a clothed search of defendant, but Scheurer did not see him search defendant's cast. Officer Scheurer next saw defendant in the sergeant's office being pinned against a wall by Officer Christopher Parham, Officer Colby, and Sergeant Brunkhorst. Officer Colby told Scheurer that defendant had a weapon in his soft cast and then Scheurer saw Colby remove that weapon. Officer Colby handed it to Officer Scheurer, who put it in a "sharps container." After Officer Colby secured defendant in the holding cage, Officer Scheurer returned the sharps container to Colby. Officer Scheurer confirmed the weapon presented to the jury was in the same condition as when Scheurer returned it to Officer Colby on the day in question.
Correctional Officer Parham testified to responding to a call for a resisting inmate, and when he arrived, he saw defendant being restrained by Officer Barton on the ground. Officer Parham saw defendant again when he was brought into the sergeant's office for an interview. Officers instructed defendant to face the wall so that they could check his soft cast with a metal detector. The metal detector alerted, and Officer Colby asked defendant what was in the cast. Officer Parham testified defendant "immediately or reluctantly said it's a knife." A brief struggle ensued, but ended after Officer Colby removed the weapon from the cast. Defendant was then escorted to a holding cell, and later to administrative segregation, where Officer Parham advised him of his Miranda rights; defendant refused to sign a Miranda advisement form. Officer Parham denied being a member of a conspiracy to set up defendant.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The form at issue is not in the record, but was referred to at trial as a "Miranda rights advisement form" or a "Miranda advisement" form by both the prosecution and defense. In their briefing, the parties refer to it alternately as an "advisement" or an "acknowledgement" form. Case law contains references to advisement forms, which suggest it is synonymous with an acknowledgement that the subject was read his or her Miranda rights. (See, e.g., People v. Dykes (2009) 46 Cal.4th 731, 748 [police sergeant "then read defendant the full Miranda advisements directly from a printed form, which defendant initialed"].) Without having the form in the record before us, however, we can only speculate about its nature and content, and therefore will presume the form only asked defendant to acknowledge that the Miranda advisements were read to him, not that it was a waiver or something else. (See People v. Akins (2005) 128 Cal.App.4th 1376, 1385 [defendant, as the appellant, has the burden to provide an adequate record].)
Correctional Sergeant Brunkhorst, a member of the investigative service unit, testified to responding to a resisting inmate call. When he arrived, he saw defendant on the ground secured in restraints. Sergeant Brunkhorst directed Officer Colby to take defendant from the scene. Sergeant Brunkhorst learned that defendant might have a weapon and instructed Officer Colby to bring him to his office, and an unnamed person secured the metal detector to check the soft cast. The metal detector alerted to the soft cast area, and Sergeant Brunkhorst asked defendant what was in his cast. Defendant first said, "[N]othing," but later spontaneously offered, "[I]t's a knife." Brunkhorst saw Officer Colby partially unwrap the soft cast and retrieve an inmate manufactured weapon that could be characterized as a knife.
B. The Defense
The defense recalled Officer Colby, who relayed information consistent with his earlier testimony, adding that he had supplied the flex cuffs used to restrain defendant. Defense counsel impeached Officer Colby's earlier trial testimony that he did not recall hearing defendant say anything about a knife with his preliminary hearing testimony in which Colby testified that defendant had stated he had a knife.
Defendant testified that he had been in the yard. When he returned to his cell there was a "cell slip" for his headphones, which had been confiscated during a cell search because they allegedly had been altered. In response, defendant refused to be locked up until he spoke to the sergeant. Officer Barton told him to turn around because he was going to handcuff him. Barton grabbed his right arm to put it behind his back, and defendant warned him, "Look, I just had surgery, don't twist my arm." Defendant admitted he struggled with Officer Barton, stating he told him, "[L]ook, I just had surgery, don't grab my hand like that, you can't put a cuff on it." Officer Barton wrestled defendant to the ground and radioed for a flex cuff. Six or seven officers responded to the radio call, and defendant was placed in leg restraints. Before leaving for a medical evaluation, officers conducted a patdown search of defendant, including his right arm and cast area, though they did not remove the cast. They also conducted a visual search for injuries at the medical evaluation. No weapons were found.
Thereafter, defendant was transported to the "program office," where he was placed in a holding cell. Officer Colby took him into the sergeant's office where the sergeant and two other officers were waiting. The officers pushed him against the wall, and Sergeant Brunkhorst asked him whether he had any weapons. Defendant testified that he said, "[N]o." Officer Colby asked what he had in his hand, and defendant responded, "[N]othing." Colby said that the metal detector was going off, and defendant explained to the officers, "I had surgery on my hand, I got a screw in my hand." Defendant testified the officers already knew that he had had surgery because he had "been on the yard ten months wearing a cast."
Officer Colby and Sergeant Brunkhorst unwrapped defendant's cast, and one of them stated that he had a knife. Defendant responded, "I don't have no knife." The nurse then came in and rewrapped his cast. He was then placed in a holding cell and later taken to administrative segregation. Defendant was previously convicted of second degree robbery, petty theft with priors, and for being a felon in possession of a firearm. On cross-examination, the prosecution sought to clarify whether it was defendant's hand or his arm that was injured. Defendant stated, "The mark speaks for itself. This is a fresh surgery I just had in San Joaquin October 28th[, 2016]." Defendant conceded he did not have documentation showing he had had surgery during the March 2017 timeframe. On redirect, defendant showed the jury the scar on his right hand and denied having a knife.
The search in question occurred on or about March 16, 2017.
C. The People's Rebuttal
The People recalled Sergeant Brunkhorst in rebuttal, eliciting in pertinent part, that on the day in question defendant had never complained of pain or discomfort, was wearing a bandage above his wrist on his forearm area, and that the metal detector had alerted above the hand and wrist area. Sergeant Brunkhorst had never had a conversation with defendant about any special medical needs defendant may have had.
D. The Verdict and Sentencing
The jury found defendant guilty of custodial possession of a weapon (§ 4502, subd. (a)), and in bifurcated proceedings, the trial court found true the special allegation that defendant had suffered three prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court partially granted defendant's Romero motion, striking two of defendant's three prior strikes. The court sentenced him to the upper term of four years, doubled to eight years because of the prior strike, to be served consecutively to the sentence he was already serving. The trial court also imposed a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373). Defendant timely appealed.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
I
Prosecutorial Misconduct
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44.) "Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (Ibid.)
"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
In the absence of a timely objection, a defendant may seek to overcome forfeiture by proving his counsel provided ineffective assistance of counsel by not objecting. This is a heavy burden on direct appeal. As the California Supreme Court has explained, "[a] criminal defendant's federal and state constitutional rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance. When challenging a conviction on grounds of ineffective assistance, the defendant must demonstrate counsel's inadequacy. To satisfy this burden, the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Mai, supra, 57 Cal.4th at p. 1009.) " ' "[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
A. Defendant's Failure to Sign the Miranda Advisement Form
Here, defendant complains the prosecutor's questions concerning his failure to sign a Miranda advisement form ran afoul of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) and its progeny. We disagree.
At the outset, we note defendant forfeited this issue by failing to object in the trial court. (See Samayoa, supra, 15 Cal.4th at p. 841.) Putting that forfeiture aside given defendant's ineffective assistance claim, we are not persuaded defendant has met his burden of overcoming the presumption of correctness and affirmatively demonstrating error on appeal. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [" 'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error' "]; Mai, supra, 57 Cal.4th at p. 1009 [stating presumption that defense counsel acted reasonably].) On the contrary, defendant's attorney was not ineffective for failing to make what would have been a futile objection. (People v. Garlinger (2016) 247 Cal.App.4th 1185, 1193-1194 [counsel not ineffective for failing to bring a futile objection to evidence].)
Defendant's assertion that his "counsel did attempt to draw out a Miranda violation in the preliminary hearing, and the court told counsel that was an issue for trial evidence," is inconsistent with the record. The cited exchange was a discussion of the admissibility of defendant's unMirandized statement in Sergeant Brunkhorst's office that "it's a knife" following the metal detector alert. It has nothing to do with the prosecution's mention at trial of defendant's refusal to sign the Miranda advisement form in administrative segregation after recovery of the knife.
In Doyle, the Supreme Court of the United States held that "the prosecution may not, consistent with due process and fundamental fairness, use postarrest silence following Miranda warnings to impeach a defendant's testimony at trial." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.) In Coffman and Marlow, the Supreme Court of California extended this principle to the People's questioning of an interrogating officer before a defendant takes the stand. (Id. at p. 118.) "The basis of the rule is that 'it is fundamentally unfair, and a deprivation of due process, to promise an arrested person that his silence will not be used against him, and then to breach that promise by using silence to impeach his trial testimony.' [Citation.]" (People v. Clark (2011) 52 Cal.4th 856, 959.) The concern is that "[t]estimony that a defendant has invoked his or her right to silence during an interrogation typically poses the risk that the jury will infer the defendant's guilt from such evidence." (Ibid.)
Here, the complained-of questions came during the People's examination of Officer Parham, who testified that following the discovery of an inmate manufactured knife, defendant was escorted to a holding cell, and later to administrative segregation, where Officer Parham read defendant his Miranda rights, but defendant refused to sign a form acknowledging that he had been read his rights. Officer Parham did not testify concerning any attempts to question defendant, or comment on his invocation of his Miranda rights. Defendant has provided no authority holding that Doyle applies under these circumstances, and we find it is inapplicable to the mere mention of a defendant's refusal to sign a Miranda rights acknowledgment form. Testimony concerning defendant's refusal to sign that form does not pose the same risk that the jury might infer defendant's guilt from the exercise of a constitutional right. There was no testimony about defendant's invocation of his Miranda rights, only that he was uncooperative in refusing to acknowledge that he had been read those rights. Nor were there questions concerning defendant's failure following arrest to tell authorities that he was framed by prison officials. (See Doyle, supra, 426 U.S. at pp. 613-620 [prosecution violated defendants' due process rights by cross-examining them concerning their failure to tell exculpatory story to authorities following arrest].) Because there was no testimony that defendant invoked his right to silence, or failed to provide the investigating officers with the exculpatory explanation he offered at trial, defendant's claim fails.
The prosecution asked three short questions on this subject: "Q. Did inmate Gardner sign the Miranda rights advisement form? [¶] A. No, sir. [¶] Q. Just to clarify he refused to sign it? [¶] A. Yes, sir. [¶] Q. But offered to him? [¶] A. Yes, sir." On cross-examination, defense counsel asked Officer Parham about defendant's failure to sign a "Miranda advisement," but those questions focused on impeaching the officer about when and where defendant was advised of his Miranda rights. Defense counsel attempted to raise the issue again during her direct examination of defendant, but the People objected on relevance grounds and argued there was no Miranda issue.
Defendant's citation of a dissenting opinion in People v. Randall (1970) 1 Cal.3d 948, 960 on this point is unavailing. The cited portion of Randall distinguished People v. Fioritto (1968) 68 Cal.2d 714, which held that a defendant's refusal to sign a Miranda waiver operated as an invocation of his Miranda rights. (Fioritto, at p. 719.) However, that was in the context of considering whether that defendant's subsequent confession was elicited under circumstances violating Miranda because the interrogation did not stop following defendant's refusal to sign a Miranda waiver. (Fioritto, at pp. 716, 718.) It does not follow that, for Doyle purposes, a jury would understand that if a defendant refused to sign a form acknowledging only that he had been advised of his Miranda rights, that defendant could be treated for legal purposes as having invoked his Miranda rights.
We nonetheless agree with our concurring colleague that, even if the complained-of conduct violated Doyle, the error would be harmless.
B. The People's Alleged Vouching
Defendant also complains that his counsel was ineffective in failing to appropriately counter the prosecution's attempts to vouch for the credibility of certain witnesses.
"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, the prosecutor initially argued the elements of the offense and stressed it was for the jury to decide, that they could have testimony read back to them, and that they should not "listen to me and take my word as gospel." He then addressed what he termed "inconsistencies" in some of the testimony. He directed the jury to consider those inconsistencies in light of all the evidence, stating, "[I]f there are inconsistent statements between the specific guards, take them as a total and compare them. Do not automatically reject testimony just because it's inconsistent or conflicts. Consider whether the differences are important. People sometimes honestly forget things. They make mistakes."
He continued, "So when you're considering all of the testimony in regards to the event, Officer Colby, Officer Parham, Officer Scheurer, and Sergeant Brunkhorst, take them as a total. Some heard a statement it's a knife, some didn't. They were engaged in different things, and people's ability to pick things up and remember it in a specific event can be impacted by things that are disturbing them. If I'm trying to hold someone against the wall, that can deflect my attention away from what's being said, because I'm trying to maintain control and custody of the inmate.
"People honestly forget things or make mistakes about what they remember. Doesn't mean they're not being honest. You need to evaluate their sincerity. Officer Colby came in, and he had made a mistake on his report, on his written report about unclothed body search. . . . [¶] . . . He made an error in his report. But he sat on the stand and he took responsibility for it, and he looked you in the eye. He didn't lie, and he didn't cover up, and we didn't try to hide it from you. We put it right out there for you to see. Because the one thing this is is a search for the truth."
Defense counsel objected at this point for vouching. The prosecutor argued he was pointing out the witness's error, not vouching for his honesty. The trial court overruled the objection.
The defense argued in response that "[t]here had been a myriad of inconsistencies" in the People's case and questioned why the knife had not been found sooner, given that defendant had been searched multiple times before it was (allegedly) recovered from his soft cast. The defense advanced the theory that the metal detector alerted to a surgical screw, and that authorities were upset with defendant because of his overreaction to having his headphones confiscated.
In rebuttal, the prosecutor argued that while defense counsel was "very skilled," she had not made good on her promise in her opening statement to provide "some evidence of a conspiracy." Further, the searches leading up to the knife's discovery had been cursory, and defendant's self-serving statements were not corroborated. The prosecutor then stated, "I can tell you one thing, those are self-serving statements. My officers, my inconsistent one, we have to call—Colby did a really good job. He's sincere and he's honest. [¶] . . . [¶] . . . He had inconsistencies. But he owned up to them. And I'll tell you what those inconsistencies were. They weren't self[-]serving. It would have been a lot better for the People if they all would have come in and said it was a knife. There was no conspiracy. There's no proof of that. There's proof that there was a dagger, there is proof that there was a penal institution, it was concealed, he knew what it was, he knew that he had it. And you heard that it was a dangerous and deadly weapon."
The court overruled the defense's objection that this comment misstated the testimony.
The only statements above that could arguably suggest an opinion of the prosecutor premised upon extra record evidence is the following: "Colby did a really good job. He's sincere and he's honest." The trial court sustained defense counsel's immediate objection to this statement, but defendant did not request a curative admonition. Such request is a prerequisite to bringing a misconduct claim on appeal. (Samayoa, supra, 15 Cal.4th at p. 841.)
Whether these statements actually represent an opinion based upon extra record facts depends upon how the complained-of statements are construed. If the prosecutor was suggesting the officer did a good job at work, there is no evidence regarding his service history in the record. However, if the prosecutor was referring to Officer Colby's performance on the witness stand, the jury witnessed that performance. Ultimately, we need not decide whether this statement, nor the prosecutor's description of Officer Colby as "sincere" and "honest" is grounded in the record because, as we shall explain, defendant has not shown he was prejudiced thereby.
Moreover, considering the merits in light of defendant's ineffective assistance claim, it is not reasonably likely the prosecutor's brief comments regarding Officer Colby caused the jury to abdicate its responsibility and disregard the court's clear instruction that it was the jury's job to judge the credibility of witnesses and how to do so. (See People v. Frye, supra, 18 Cal.4th at p. 970 [in evaluating the jury's potential use of complained-of comments, "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements"], disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22; Samayoa, supra, 15 Cal.4th at p. 841.) We presume the jury understood and followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Further, the likelihood that the jury was not misled and performed its duty to independently judge the credibility of Officer Colby is underscored by the prosecutor's own closing argument, which stressed that the jury must evaluate any inconsistencies in testimony by judging them in the context of all of the testimony, and highlighted that the jury should not "listen to [him] and take [his] word as gospel."
Finally, in judging whether defendant has established this ineffective assistance of counsel claim, we are mindful of the context of the prosecutor's comments in light of the other evidence. Specifically, the prosecution made a brief comment about only one of four correctional officer witnesses, all of whom testified to the recovery of the weapon from defendant's soft cast. Thus, assuming arguendo that the jury abdicated its responsibility vis-à-vis Officer Colby's credibility, there were three other witnesses whose testimony consistently established defendant's guilt for the underlying offense. Under these circumstances, defendant has not shown he was prejudiced by his counsel's failure to request a curative instruction regarding the jury's duty to independently judge Officer Colby's credibility. (See Mai, supra, 57 Cal.4th at p. 1009 [defendant must establish "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different"].)
We find People v. Rodriguez (2020) 9 Cal.5th 474 distinguishable given the breadth of who the vouching covered and scope of the vouching involved.
II
CALCRIM No. 362
The trial court instructed the jury with CALCRIM No. 362 as follows: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing that the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
Defendant complains on appeal that "the trial court erred in giving CALCRIM [No.] 362 because no prior statement was admitted, and there was no evidence that any statement was false." This argument presumes, contrary to published authority, that CALCRIM No. 362 is inapplicable if defendant's prior statements are introduced by virtue of his own trial testimony.
"On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. (See People v. Frye[, supra,] 18 Cal.4th [at p.] 958.)" (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
Here, the People introduced evidence of defendant's pretrial statements through Officer Parham and Sergeant Brunkhorst, who both recalled defendant stating, "[I]t's a knife," in response to questioning following the metal detector alert. Sergeant Brunkhorst also recalled defendant saying it is "nothing."
Defendant also introduced multiple pretrial statements he allegedly made to officers. He testified to telling officers, "Look, I just had surgery, don't twist my arm." Similarly, he testified to saying, "[L]ook, I just had surgery, don't grab my hand like that, you can't put a cuff on it." He also ostensibly answered negatively when asked whether he had any weapons, said he had "nothing" when the metal detector wand alerted, and had explained to officers, "I had surgery on my hand, I got a screw in my hand." Moreover, in response to officers allegedly finding the weapon on him, he stated, "I don't have no knife."
Also relevant to this claim on appeal is defendant's testimony at trial that he had been wearing the soft cast for 10 months and had surgery in October 2016. Finally, Sergeant Brunkhorst testified in rebuttal that the wand had alerted above the wrist/hand area, and defendant's soft cast was above the wrist on his forearm.
There is nothing in the text of CALCRIM No. 362 that limits its application to defendant's pretrial statements offered in the People's case. On the contrary, the analysis of People v. Williams (2000) 79 Cal.App.4th 1157 implicitly recognized that a defendant's pretrial statements introduced by the defendant were subject to CALJIC No. 2.03, a predecessor instruction to CALCRIM No. 362. In Williams, the court held that the Miranda rule does not prohibit instructing the jury that it may draw an inference of guilt from a willfully false or deliberately misleading pretrial statement that a defendant voluntarily introduces into evidence on direct examination. (Williams, at pp. 1166-1169.) If a defendant's pretrial statements introduced by virtue of that defendant's testimony were not subject to such an instruction, there would have been no need to consider the Miranda issue. Nor do we see any reason to so limit the instruction's application.
Prior to its amendment, CALCRIM No. 362 differed from CALJIC No. 2.03 by omitting the language limiting its application to defendant's pretrial statements. (People v. Beyah (2009) 170 Cal.App.4th 1241, 1248.) The current instructions are materially the same. (Compare CALCRIM No. 362 with CALJIC No. 2.03.)
Taking the entire record, including defendant's testimony regarding his pretrial statements, into consideration, we find the trial court properly instructed the jury with CALCRIM No. 362. Defendant repeatedly stated to authorities that he "just had surgery" and further that the metal detector alerted because of a screw in his hand. The first set of statements, if believed, supported the inference that he was resisting, not because he possessed an illegal weapon, but because he was concerned for his safety because of the surgery. Likewise, the second statement supported an alternate and harmless reason for the metal detector alert. However, there also was evidence that these statements may have been false and intended to deceive the officers. For example, defendant's own testimony established that the surgery had been between five and 10 months before the March 2017 search and thus was not fresh as asserted by defendant. Further, according to Sergeant Brunkhorst, the metal detector alerted to an area above defendant's hand and wrist, thus refuting the idea that it was triggered by an alleged screw in defendant's hand. It follows that defendant could have made these pretrial statements to keep authorities from manipulating or searching the soft cast on his forearm, which, if one credited the officers' testimony, contained an inmate manufactured knife. As such, the trial court properly gave the complained-of instruction. Because the defendant testified to his own pretrial statements, People v. Beyah, supra, 170 Cal.App.4th 1241 is inapposite.
III
The Trial Court's Imposition of Certain Fines and Fees
Defendant complains the trial court erred in imposing a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation restitution fine (§ 1202.45), a $40 court security fee (§ 1465.8), and a $30 criminal conviction assessment (Gov. Code, § 70373) without first determining his ability to pay them. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he requests this court either vacate the trial court's orders or remand the matter for an ability to pay hearing. Defendant is not entitled to either, as we shall explain.
Dueñas held that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under [] section 1465.8 and Government Code section 70373." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court also held that "although [] section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Dueñas, at p. 1164.)
The People argue defendant forfeited his claim by failing to object on any constitutional grounds or even express any concern about inability to pay in the trial court. The arguments defendant advances in support of his assertion that his claim is not forfeited presuppose that Dueñas was correctly decided. We are not persuaded that the analysis used in Dueñas is correct.
Our Supreme Court is now poised to resolve this question, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court operations and court facilities assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, supra, at pp. 95-96.)
In the meantime, we join those authorities that have concluded the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069 (Aviles); People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Having done so, we reject defendant's Dueñas challenge to the above-referenced fines, fees, and assessments.
To the extent imposing potentially unpayable fees or fines on indigent defendants raises constitutional concerns, we agree that such challenges are properly analyzed under the excessive fines clause, which limits the government's power to extract payments as punishment for an offense. (Aviles, supra, 39 Cal.App.5th at pp. 1068-1069.) We disagree, however, with defendant's summary suggestion that his fines and fees necessarily fail under an excessive fines analysis because there is insufficient evidence of ability to work and earn wages in prison.
" 'The Eighth Amendment prohibits the imposition of excessive fines. The word "fine," as used in that provision, has been interpreted to be " 'a payment to a sovereign as punishment for some offense.' " [Citation.]' ([People v.] Gutierrez [(2019)] 35 Cal.App.5th [1027,] 1040 (conc. opn. of Benke, J.).) The determination of whether a fine is excessive for purposes of the Eighth Amendment is based on the factors set forth in [United States v.] Bajakajian [(1998)] 524 U.S. 321 [(Bajakajian)]. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728.)
" 'The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. [Citations.] . . . [A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense.' (Bajakajian, supra, 524 U.S. at p. 334.)
"The California Supreme Court has summarized the factors in Bajakajian to determine if a fine is excessive in violation of the Eighth Amendment: '(1) the defendant's culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant's ability to pay. [Citations.]' (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; see Gutierrez, supra, 35 Cal.App.5th at p. 1040 (conc. opn. of Benke, J.).) While ability to pay may be part of the proportionality analysis, it is not the only factor. (Bajakajian, supra, 524 U.S. at pp. 337-338.)" (Aviles, supra, 39 Cal.App.5th at p. 1070.) We review the excessiveness of a fine challenged under the Eighth Amendment de novo. (Aviles, at p. 1072.)
Here, we find the $370 imposed by the court is not grossly disproportional to the gravity of committing custodial possession of a weapon or defendant's culpability in that offense. (See Bajakajian, supra, 524 U.S. at p. 334; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728; Aviles, supra, 39 Cal.App.5th at p. 1072.) We also are unconvinced that defendant's previous surgery, and the trial court's finding that he would be unable to reimburse the public defender for the costs of his defense, foretells that he will be unable to pay $370 in fines and fees. Further, ability to pay alone is not dispositive in an excessive fines analysis. (Aviles, at p. 1070 [citing Bajakajian, at pp. 337-338 regarding the four factors for consideration].) Accordingly, we deny defendant's request to vacate the court's order or remand for an ability to pay hearing.
We do not include here the stayed $300 parole revocation restitution fine because defendant is not presently obligated to pay that fine, and will not have to, unless his parole is revoked following his release from prison. (§ 1202.45, subd. (c).)
DISPOSITION
The judgment is affirmed.
KRAUSE, J. I concur: RAYE, P. J.
Murray, J., Concurring.
I concur in the majority opinion. I write separately because I cannot agree with the majority's conclusion that the prosecution's questions, calling attention to defendant's post-arrest post-Miranda silence, did not violate the rule in Doyle v. Ohio (1976) 426 U.S. 610 (Doyle).
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
I, nevertheless, conclude that even if defense counsel had no tactical reason for failing to object, the failure to do so was not prejudicial under the circumstances.
I. Background
After questioning Officer Parham about his observations concerning the removal of the knife from defendant's cast, the prosecutor wrapped up direct examination by asking Parham about what happened when defendant was brought to an administrative segregation holding cell:
"[PROSECUTOR]: And [defendant] is in the holding cell. What did you do at this time?
"[PARHAM]: I read him Miranda rights.
"[PROSECUTOR]: And did anyone else witness that?
"[PARHAM]: I believe Officer Colby was with me as well.
"[PROSECUTOR]: Did [defendant] sign the Miranda rights advisement form?
"[PARHAM]: No, sir.
"[PROSECUTOR]: Just to clarify he refused to sign it?
"[PARHAM]: Yes, sir.
"[PROSECUTOR]: But offered to him?
"[PARHAM]: Yes, sir." (Italics added.)
The prosecutor then indicated he had no further questions, concluding his direct examination.
II. Analysis
A. Relevance
Preliminarily, it appears to me that these questions lacked any relevance whatsoever. They established no fact material to the issues before the jury. Indeed, when defendant's trial counsel sought to inquire of defendant on the subject of the Miranda warning, the prosecutor objected on relevance grounds, arguing there was no Miranda issue. In making that objection, the prosecutor was correct; Miranda was not an issue for the jury to decide. But why then did the prosecutor ask questions on the subject during direct examination of Parham? It seems clear the prosecutor wanted the jury to draw an inference it should not have been allowed to draw: that defendant remained silent after being Mirandized.
Prosecutors' ethics materials advise prosecutors not to ask questions that would yield responses the prosecutor knows to be inadmissible. The prosecutor's question, "Just to clarify he refused to sign it?" suggests the questioning on this point was intentional. (Italics added.) And I see no good faith legal theory of admissibility. Thus, under the circumstances, it appears the prosecutor intentionally sought to establish defendant had nothing to say about his possession of the weapon after he was read his Miranda rights. But even if it was unintentional, the questions and answers nevertheless left the jury to conclude defendant remained silent. As I next discuss, this violated Doyle, supra, 426 U.S. 610.
When addressing claims of prosecutorial misconduct, California courts sometimes cite the ABA Prosecutorial Function Standards and the California District Attorneys Association (CDAA) ethics manual, Professionalism, A Sourcebook of Ethics and Civil Liability Principles for Prosecutors. (See People v. Force (2019) 39 Cal.App.5th 506, 516, 517, fn. 3.) The American Bar Association Criminal Justice Standards for the Prosecution Function Standard 3-6.6(d) states: "The prosecutor should not bring to the attention of the trier of fact matters that the prosecutor knows to be inadmissible, whether by offering or displaying inadmissible evidence, asking legally objectionable questions, or making impermissible comments or arguments. If the prosecutor is uncertain about the admissibility of evidence, the prosecutor should seek and obtain resolution from the court before the hearing or trial if possible, and reasonably in advance of the time for proffering the evidence before a jury." The CDAA manual states: "Deliberately extracting inadmissible evidence or impermissible prejudicial answers constitutes prosecutorial misconduct."
B. Doyle
In Doyle, supra, 426 U.S. 610, the United States Supreme Court held that the prosecution may not use a defendant's post-arrest, post-Miranda silence to impeach the defendant's trial testimony. (Id. at p. 619.) Our state's high court has extended Doyle to preclude the prosecution from using post-arrest, post-Miranda silence as evidence of guilt in its case-in-chief. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118 (Coffman and Marlow).)
The due process reason for this prohibition has been repeatedly referenced in caselaw: it is fundamentally unfair to use such silence against a defendant given the Miranda warnings assure the defendant that silence will not be used against him. (Doyle, supra, 426 U.S. at p. 618; Anderson v. Charles (1980) 447 U.S. 404, 407-408 (Anderson); Coffman and Marlow, supra, 34 Cal.4th at p. 118 [Doyle is not limited to prosecutor's use of silence for impeachment; prosecutor prohibited from using silence as affirmative evidence of guilt; "[n]o less unfair is using that silence against a defendant by means of the prosecutor's examination of an interrogating detective"].) The high court has "explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." (Fletcher v. Weir (1982) 455 U.S. 603, 606 [71 L.Ed.2d 490, 494].)
The majority finds Doyle "inapplicable to the mere mention of defendant's refusal to sign a Miranda rights acknowledgment form," reasoning that defendant's mere refusal to sign the form does not pose the risk that the jury might infer guilt from the exercise of a constitutional right. (Maj. opn., ante, at p. 10.) This is so, according to the majority, because "[t]here was no testimony about defendant's invocation of his Miranda rights," and the testimony established only that he "failed to acknowledge that he had been informed of those rights." (Maj. opn., ante, at p. 9.) I cannot agree for three reasons.
First, we are not faced with just "the mere mention" of a refusal to sign a Miranda form. Here, the evidence showed that defendant was given a Miranda admonition, then refused to sign the form, and then there was no evidence defendant gave a statement thereafter, leaving the jury to conclude that defendant maintained his silence.
Second, there is no evidence that defendant's refusal to sign the form constituted a mere refusal "to acknowledge he had been informed" of the Miranda rights as the majority asserts. The majority refers to the form as a "Miranda acknowledgment form." (Maj. opn., ante, at p. 10.) The form is not in the record, but neither Parham nor the prosecutor referred to the form as such. The prosecutor called it a "Miranda rights advisement form" in his question to Parham. Indeed, the mere acknowledgment that Miranda rights have been provided has no legal relevance by itself, and thus it is difficult to see the purpose of such an "acknowledgment" form documenting merely that a defendant has been read his rights. In any event, there was simply no testimony as to what defendant refused to acknowledge by refusing to sign the form. We do not know whether he refused to sign to indicate that he had been admonished as the majority hypothesizes, whether he refused to sign indicating that he understood the rights, or whether he refused to sign as to whether he was willing to waive those rights. The majority's view that Parham's testimony only showed "that [defendant] was uncooperative in refusing to acknowledge that he had been read [the Miranda] rights" (Maj. opn., ante, at pp. 10-11) is simply not supported by the record.
Typically, these forms are referred to as Miranda "advisement" or "waiver" forms. The form asks the defendant if he understands the rights. Some forms also solicit an express waiver, asking whether the defendant agrees to waive the rights and speak to law enforcement. Both questions are relevant to the legal purpose of such forms: to document a knowing and voluntary waiver of the Miranda rights. (See Berghuis v. Thompkins (2010) 560 U.S. 370, 384-385 [valid Miranda waiver requires a valid admonition, a showing that defendant understood the rights and a waiver; waiver need not be express, it may be implied from a suspect giving a statement after indicating he understands the rights]; People v. Cunningham (2015) 61 Cal.4th 609, 642 [Miranda waiver does not require officer to ask for an express waiver; Miranda waiver valid where there is a showing suspect was admonished, suspect understood the rights and thereafter gave an uncompelled, uncoerced statement].) A defendant's mere acknowledging that the Miranda rights had been read to him does not establish the admissibility of statements that might be given thereafter; therefore any form that merely serves to document an admonition is worthless. It appears the majority views defendant's refusal to sign the form to be a mere refusal to acknowledge he had been informed of the Miranda rights because the parties on appeal referred to the form as an "acknowledgment form," a term not used by any witness. However, not even the People argue on appeal the refusal to sign the form amounted to the mere refusal to acknowledge having been read the Miranda rights. In my view, the parties' imprecise use of the word "acknowledgment" in their appellate briefing to characterize the nature of the form must have been a reference to an acknowledgment of an understanding of the rights and waiving those rights, not the mere acknowledgment that the rights admonition had been given.
And third, the majority's reasoning, focusing on the lack of evidence that defendant invoked his Miranda rights, misapprehends Doyle's scope. Certainly, testimony that a defendant invoked his right to remain silent or his right to counsel or any questions by the prosecutor expressly establishing defendant gave no statement after an invocation would violate Doyle. But an invocation is not required; nor is direct evidence indicating defendant failed to give a statement. It is the prosecutor's use of evidence of silence following an arrest and Miranda admonitions that is prohibited. (Anderson, supra, 447 U.S. at p. 408 ["Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances"].) Here, the prosecutor's questions led the jury to infer circumstantially that defendant remained silent after he was Mirandized and refused to sign the form.
The People argue that since no questions were asked as to whether defendant agreed to speak with the officers or invoked his right to remain silent or requested a lawyer, trial counsel was not ineffective for failing to object. But the People fail to cite any authority supporting their contention that, because there was no reference to an invocation, the prosecutor's questions did not amount to Doyle error. The reason for the failure to cite supporting authority is clear to me: Doyle prohibits any use of a defendant's post-arrest, post-Miranda silence, even when there has been no express invocation and direct evidence defendant failed to make a statement. Hence, no case supports the People's argument.
The majority relies on People v. Clark (2011) 52 Cal.4th 856 (Clark), a case not cited by the People. According to the majority, Clark stands for the proposition that the concern addressed by the Doyle rule is that " '[t]estimony that a defendant has invoked his or her right to silence during an interrogation typically poses the risk that the jury will infer the defendant's guilt from such evidence.' " (Maj. opn., ante, at p. 9, quoting Clark, at p. 959.) It is apparently from this quoted language that the majority concludes there was no such risk here since there was no evidence of or questions about an invocation, and thus there was no Doyle violation. It appears to me that the majority reads too much into Clark.
I do not read Clark as indicating the concern underlying Doyle is as the majority has stated. Neither Doyle, nor Clark require a risk the jury might infer guilt in order for there to be a Doyle violation. As the majority acknowledges, the Clark court stated: "The basis of the [Doyle] rule is that 'it is fundamentally unfair, and a deprivation of due process, to promise an arrested person that his silence will not be used against him, and then to breach that promise by using silence to impeach his trial testimony." (Clark, supra, 52 Cal.4th at p. 959, italics added.) Doyle "rests on" this fundamental unfairness. (Greer v. Miller (1987) 483 U.S. 756, 765 (Miller).) The concern addressed in Doyle and its progeny is the use of a defendant's silence after being Mirandized, whatever use a prosecutor might make of that silence. The majority's reference to evidence of an invocation leading to an inference of guilt being "the concern" addressed by Doyle (maj. opn., ante, at p. 9) is not something the Clark court said. However, that inference was indeed a concern given the unique facts in Clark.
In Clark, the defendant was Mirandized and he invoked. Thereafter, he was told he was under arrest for murder and attempted murder. The prosecutor asked the detective if he noticed any change in the defendant's demeanor after he told the defendant why he was under arrest. The detective responded, " 'There was no reaction and no inquiry who he allegedly murdered.' " (Clark, supra, 52 Cal.4th at p. 958.) It was in this context that the Clark court said of the invocation evidence: "Testimony that a defendant has invoked his or her right to silence during an interrogation typically poses the risk that the jury will infer the defendant's guilt from such evidence." (Id. at p. 959.) In other words, the improper questions and answers in Clark established consciousness of guilt. I agree that such a risk generally results from testimony about an invocation -- especially so in Clark -- but I do not agree that there is no due process violation under Doyle unless there is evidence of an invocation. Nor does Clark state as much. Cases are not authority for propositions not considered therein. (People v. Shah (2019) 38 Cal.App.5th 813, 817.)
It appears to me that the sole reason the Clark court focused on this risk is that it was pertinent to its harmless error analysis. Left unaddressed, the improper testimony in Clark would have established consciousness of guilt. After identifying the risk of such an inference, the Clark court went on to explain why that risk was not present there. There had been an objection by the defense and the trial court gave a curative instruction. As the Clark court noted: "Here, however, there was little risk the jurors would draw that impermissible inference because before [the detective] resumed his testimony, the court admonished them as follows: " '[Y]ou may recall that [the detective] had responded that . . . when [defendant] was advised of the charges involved, not the name of the victims but the charges involved, there was no verbal . . . response by him, the inference being that maybe there should have been had you not already known, right? [¶] And I want to say to you that that evidence of no verbal response is . . . now stricken by the Court, and that any such inference such as the one I mentioned is not to be made. In other words, his silence is appropriate at that point.' " (Clark, supra, 52 Cal.4th at p. 959, italics added.) Based on the trial court's admonition, the Clark court concluded the error was harmless, relying on Miller, supra, 483 U.S. 756. (Clark, at p. 959.)
Indeed, in Doyle, there was no evidence the defendants invoked after they were Mirandized; the evidence only indicates that when they were arrested, they were given the Miranda admonitions. (Doyle, supra, 426 U.S. at p. 613; see also Miller, supra, 483 U.S. at p. 761 [describing the facts in Doyle as the defendants "were given Miranda warnings and made no postarrest statements about their involvement in the crime"].) As the Doyle court explained: "Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." (Doyle, at p. 617, italics added.) It then concluded: " '[I]t does not comport with due process to permit the prosecution during the trial to call attention to [a defendant's] silence . . . .." (Id. at p. 619, italics added; accord, Miller, at p. 763.) Consequently, as in Doyle, no evidence of an express invocation is required here to trigger the application of Doyle because silence in the wake of Miranda warnings may have been nothing more than and exercise of the Miranda rights.
Indeed, it would have been quite reasonable for defendant's jury to infer that he invoked Miranda because the evidence, and the context of its elicitation, showed: (1) that defendant was read the Miranda rights, (2) he then refused to sign the Miranda advisement form, (3) the prosecutor concluded direct examination of Officer Parham without asking about any statement, and (4) there was an absence of evidence that defendant gave a statement after he was Mirandized and refused to sign the form. And even if the jury did not infer defendant invoked, the inference remained, based on this circumstantial evidence, that defendant maintained his silence. Indeed, a jury would have seen no import to the prosecutor's questions of Parham other than to establish that defendant did not give a statement after he had been Mirandized and refused to sign the Miranda advisement form even though, in the prosecutor's words, it was "offered to him."
As our high court has noted, "when it comes to evidence of an accused's contacts with law enforcement, the federal Constitution places strict limits on the prosecution's ability to exploit any lack of cooperation, at least after the accused has been given the warnings required under Miranda." (People v. Cowan (2010) 50 Cal.4th 401, 474, citing Doyle, supra, 426 U.S. 610.) Yet the majority here appears to have erected an entirely new requirement to bar a prosecutor's use of a defendant's silence in this context -- a requirement for an invocation. I disagree that an invocation is required in this context. I conclude that the prosecutor's questions called attention to defendant's post-arrest, post-Miranda silence and therefore constituted Doyle error. (Doyle, at p. 619; Coffman and Marlow, supra, 34 Cal.4th at p. 118.) Had defendant's trial counsel objected on Doyle grounds, the objection should have been sustained.
The present circumstance involving a law enforcement contact is to be distinguished from postMiranda silence related to conversations a defendant has with a private person. The court in People v. Eshelman (1990) 225 Cal.App.3d 1513, recognized the test in applying Doyle should focus on the circumstances surrounding defendant's postMiranda silence. Doyle need not apply to a defendant's silence in an interaction with a private party absent a showing that such conduct was an assertion of his rights to silence or counsel. (Id. at p. 1520.) "On the other hand, when the evidence demonstrates that defendant's silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle should apply." (Ibid.)
Indeed, a simple objection on relevance and Evidence Code section 352 grounds would have also been sustained. (See United States v. Hale (1975) 422 U.S. 171, 180 ["Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility, but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted"]; See also People v. Tom (2014) 59 Cal.4th 1210, 1236-1237 [holding that prosecutor's use of post-arrest, pre-Miranda silence does not violate Doyle, but might be subject to an Evidence Code section 352 objection because the silence might be the result of a defendant relying on the well-known right to remain silent and therefore lack probative value and any probative value would therefore be outweighed by the prejudicial effect]; People v. Redmond (1981) 29 Cal.3d 904, 919 ["A defendant's silence is generally 'so ambiguous that it is of little probative force' "].) Although appellate counsel did not assert an Evidence Code section objection as separate grounds for reversal, I note this potential objection because the failure to assert it in the trial court was trial counsel's failure and could later be claimed as grounds for reversal based on ineffective assistance of appellate and trial counsel. As I next discuss, the failure to object on Doyle or Evidence Code grounds was not prejudicial.
C. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
It is difficult to tell whether defendant's trial counsel had some strategy for not objecting or simply failed to do so, but it does not matter. A reviewing court need not address whether trial counsel's performance was deficient where it can dispose of the claim on the grounds of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079.)
To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " There must be a reasonable probability of a more favorable result but for counsel's deficient performance. (Richter, supra, 562 U.S. at p. 104; Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d 171 at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) And the likelihood of a different result must be substantial, not just conceivable. (Richter, at p. 112.)
Defendant has failed to show such a probability. This case involved a credibility contest between the correctional officers and defendant. And the officers' testimony was compelling despite some possible inconsistencies.
Defendant asserts that the objectionable evidence allowed the jury to conclude his trial testimony that the weapon was planted was a lie. But it seems unlikely that a jury would reject his planted evidence defense solely because he made no such claim to officers who were present at the scene after he was later Mirandized. A reasonable jury would likely conclude any protestation to those officers would have been useless, hence, defendant had no reason to speak up. Thus, if the jury was inclined to consider defendant's explanation in his trial testimony, it was not likely the jury would have rejected defendant's claim based on his post-Miranda silence. Indeed, the prosecution made no mention of the objectional part of Parham's testimony at closing arguments.
I therefore conclude defendant has failed to establish a reasonable probability of a more favorable result had trial counsel successfully objected to the prosecution's Doyle error or on relevance and Evidence Code section 352 grounds. I concur:
MURRAY, J.