Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE706010
RUSHING, P.J.
Defendant Chester Edward Gutkowski was convicted after jury trial of possession of a controlled substance, possession of paraphernalia, and being under the influence of a controlled substance. On appeal, defendant asserts he was denied effective assistance of counsel, because his attorney failed to object to the prosecution’s use of defendant’s silence as substantive evidence of his guilt. Defendant also argues the trial court erred in admitting evidence of his silence under Evidence Code sections 1221, and 352.
Statement of the Facts and Case
In July 2004, Sunnyvale Police Officer Chen was dispatched to Poplar Avenue on a complaint that there was a car parked the wrong way on the street and was blocking a driveway of a residence. Chen knocked on the doors of several homes to inquire about the car. Eventually, defendant approached Chen and told him the car was his.
Chen asked defendant for identification. As the two were talking, Chen noticed defendant was showing symptoms of what he believed was intoxication by a controlled substance. Defendant had a dry mouth, and bloodshot, watery eyes. Defendant was also fidgeting and could not stand still.
Chen asked for and received defendant’s consent to search his car. During the search, Chen found a black pouch containing a pipe that is typically used to smoke methamphetamine. The pipe contained suspected methamphetamine in the bulbous portion, and a whitish-grey powder substance inside the stem. Chen believed this substance to be methamphetamine. Lab tests later confirmed this. The methamphetamine weighed.35 grams.
Chen told defendant what he found in the car, and that he was being arrested for being under the influence of methamphetamine and possession of methamphetamine. After being told what was found, defendant did not admit or deny ownership of the pipe and the methamphetamine. Chen did not testify when, if at all, he administered Miranda warnings to defendant.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
For the defense, defendant’s wife, Lynn and her friends Debbie Scholz and Wendy Dinette, who is also defendant’s cousin, testified that Lynn was driving defendant’s car earlier that day, purchased methamphetamine, smoked it in her pipe, placed the pipe in the black pouch and left the pouch in defendant’s car. Lynn testified that she did not tell defendant what she had done. Defendant then took the car to drive to a barbeque.
Defendant was charged in January 2008, with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a) -count 1), misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364 - count 2), and misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a) - count 3). The information also alleged defendant had a prior strike conviction (Penal Code, §§ 667, subds. (b)-(i), 1170.12), and two prior prison terms (§ 667.5, subd. (b)).
Following a trial, the jury found defendant guilty of all counts. The court found the strike and prison prior allegations true. Defendant was sentenced to 32 months in state prison.
Discussion
On appeal, defendant asserts he was denied effective assistance of counsel because his attorney failed to object to the prosecution’s use of defendant’s silence as substantive evidence of his guilt.
Background
During its case-in-chief, the prosecutor examined Officer Chen as follows:
“[Prosecutor:] At the time when you told [defendant] what you had found and that you were placing him under arrest for, did he deny ownership of the pipe or the meth?
“[Chen:] No.
“[Prosecutor:] Now, do you remember that he did not say anything or do you remember he made a statement? What exactly happened?
“[Chen:] I remember him—I don’t remember him denying that it was his pipe. I don’t remember the specific statement which he made, but I do remember that he did not deny that that was his pipe that I had found in the car.
“[Prosecutor:] And I just want to be clear. You’re not saying you remember him admitting it?
“[Chen:] Correct.
“[Prosecutor:] You just don’t remember him making a statement of denial?
“[Chen:] Correct.
“[Prosecutor:] If he had made a statement of denial, would you have considered that significant?
“[Speculation objection overruled.]
“[Chen:] Yes.
“[Prosecution:] If he had made that statement, would you have noted it in your police report?
“[Chen:] Yes.
“[Prosecution:] Did you review your police report before testifying today?
“[Chen:] I did.
“[Prosecution:] Did you note that the defendant denied ownership—did you note in your police report that the defendant made a statement where he denied that the meth pipe or the meth was his?
“[Chen:] He did not.
“[Prosecutor:] Let me ask you again. My question is because you’re saying you don’t remember him making a statement; correct?
“[Chen:] Correct.
“[Prosecutor:] So when you reviewed your report, did you at any point in your report note that the defendant denied ownership of the pipe?
“[Chen:] No.”
In addition to the testimony elicited from Officer Chen, the prosecutor also made reference to defendant’s silence in his opening statement, and in his closing argument to the jury. During opening statement, when the prosecutor made reference to defendant’s silence in the face of Officer Chen’s discovery of the contraband in the car, defendant’s attorney objected based on Miranda. After a brief bench conference, defense counsel stated: “Thank you, Your Honor. For the record I want to clarify that my client does have a 5th Amendment right to invoke his right to remain silent, and that’s the basis for my objection.”
During his closing argument, the prosecutor stated: “[T]he defense attorney would have you believe you can’t consider the fact that he didn’t say anything. Well that’s not true, because there’s a judge sitting here. He’s basically a referee and decides what evidence comes in and what evidence doesn’t come in. [¶] And it you weren’t supposed to consider his statement or lack of statement to the officer when confronted with the fact that, hey, I found a meth pipe in your car, and he didn’t say anything, he didn’t deny it, if you were not supposed to consider that, the judge wouldn’t let you hear it.” Following this statement, defense counsel again objected on Miranda ground, and the court again overruled the objection.
Analysis
On appeal, defendant asserts his counsel was ineffective for failing to object to the admission of Officer Chen’s testimony regarding defendant’s silence when faced with the discovery of contraband in defendant’s car.
To prevail on a claim of ineffective assistance of counsel, first, defendant must establish that “ ‘counsel’s representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citation.]” (People v. Ledesma (1987) 43 Cal.3d 171, 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.) However, “[a] reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” (People v. Carter (2003) 30 Cal.4th 1166, 1211.) On direct appeal, where the record “does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.) In other words, appellant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) “[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
In addition to proof that counsel’s performance was deficient, defendant must also show he suffered prejudice. Specifically, defendant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Staten (2000) 24 Cal.4th 434, 450-451.)
Here, defendant argues his counsel was ineffective, because he had no reasonable tactical basis for not objecting to the prosecution’s use of his silence as substantive evidence of his guilt.
Two factors are critical to our evaluation of defense counsel’s conduct. The first consideration is that defendant’s silence was after his arrest, but before he was Mirandized. The second consideration is that defendant did not testify at trial. As a result, the prosecutor did not use defendant’s silence to impeach him; rather, defendant’s silence was used in the prosecution’s case-in-chief to establish defendant’s guilt.
Generally, post-arrest silence that occurs before Miranda warnings are given, as in this case, is admissible to impeach a testifying defendant. (Fletcher v. Weir (1982) 455 U.S. 603, 607; Jenkins v. Anderson (1980) 447 U.S. at p. 238; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.) However, when that same silence is used in the prosecution’s case-in-chief, rather than as impeachment evidence, the law is less clear. Neither the United States nor California Supreme Court has decided the question whether a defendant’s silence, prior to being advised of the Miranda warnings, can be used as substantive evidence of guilt where the defendant does not testify. Therefore, we look to federal law to determine whether such evidence should have been excluded. (People v. O’Sullivan (1990) 217 Cal.App.3d 237, 240 [“[A]fter Proposition 8, evidence of appellant’s pre-Miranda silence may be excluded only it application of the exclusionary rule is compelled by federal law.”].)
There is disagreement among the federal circuits as to the admissibility of a defendant’s post-arrest, pre-Miranda silence as substantive evidence of guilt. The Ninth Circuit has held that the admission of a defendant’s “post-arrest, pre-Miranda silence,” and government commentary “on this silence in closing argument,” “plainly infringe[s]” upon a defendant’s privilege against self-incrimination. (U.S. v. Whitehead (9th Cir.2000) 200 F.3d 634, 639; U.S. v. Newman (9th Cir.1991) 943 F.2d 1155, 1158.)
In U.S. v. Velarde-Gomez (9th Cir.2001) 269 F.3d 1023 (Velarde-Gomez), a case remarkably similar to the present case, the defendant was stopped by border agents while attempting to cross the border with 63 pounds of marijuana hidden in his car. He was taken into custody but was not given Miranda warnings while agents searched his car. (Velarde-Gomez, supra, 269 F.3d at p. 1026.) At trial, one of the agents testified that the defendant exhibited no response when told about the marijuana; the defendant did not look surprised or upset but just sat there and said nothing. (Id. at p. 1027.) In closing argument, the prosecutor commented on the defendant’s post-arrest, pre-Miranda silence, arguing that he was the “perfect guy” to smuggle drugs across the border because he showed no emotion when told that there was contraband in the car. (Velarde-Gomez, supra, 269 F.3d at p. 1028.)
In Velarde-Gomez, the Ninth Circuit held the testimony and argument regarding the defendant’s post-arrest, pre-Miranda silence was error. (Velarde-Gomez, supra, 269 F.3d. at pp. 1028, 1033.) The court concluded that evidence of the defendant’s calm and relaxed demeanor while he was detained, and when he was later informed that the search had turned up marijuana in his car, was improperly admitted because such evidence was functionally equivalent to evidence of his silence. The court held that the admission of this evidence violated the defendant’s Fifth Amendment privilege against self-incrimination. (Velarde-Gomez, supra, 269 F.3d at pp. 1030-1032.)
“Whether the government argues that a defendant remained silent or describes the defendant’s state of silence, the practical effect is the same-the defendant’s right to remain silent is used against him at trial. To hold otherwise would circumvent the constitutional protection against self-incrimination: introducing evidence at trial that the defendant remained silent in the face of incriminating evidence would violate the Fifth Amendment, but describing what a defendant looked like in remaining silent would not. This distinction would undermine our well-established rule that the government may not use evidence of a defendant’s post-arrest, post-Miranda silence at trial, for impeachment or during its case-in-chief, because such evidence penalizes the exercise of a constitutional right. [Citations.]” (Velarde-Gomez, supra, 269 F.3d. at p. 1032.)
In contrast, other circuits have held that a defendant’s post-arrest, pre-Miranda silence is admissible in the prosecution’s case-in-chief as substantive evidence of guilt, and does not violate a defendant’s Fifth Amendment rights. (See U.S. v. Rivera (1991) 944 F.2d 1563, 1568 & fn. 12; U.S. v. Frazier (8th Cir.2005) 408 F.3d 1102, 1109-1111.)
Based on the obvious similarities between the present case and Velarde-Gomez, we conclude the evidence of defendant’s post-arrest silence was not admissible in the prosecution’s case-in-chief. We further note that there was no tactical basis for defense counsel not to object to the admission of that evidence. At a minimum, the fact that the law is unsettled in this area should have given cause for defense counsel to object. However, the fact that defense counsel erred in failing to object does not in itself mandate reversal here. The question is whether such error was prejudicial to defendant. Specifically, we must consider whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Here, despite the admission of defendant’s silence in the prosecution’s case-in-chief, the evidence that defendant possessed the pipe and the methamphetamine was strong. This is particularly true in light of the fact that defendant was under the influence of methamphetamine at the time he was arrested, and the pipe with methamphetamine was found in defendant’s car. These facts demonstrate a strong probability that the pipe belonged to defendant.
In addition, the prosecution demonstrated effectively at trial that Lynn’s version of the events was far from trustworthy. Lynn testified that although she knew about defendant’s arrest, she did not call the police to tell them the methamphetamine was hers. Indeed, she only told the defense investigator six months after the arrest. Lynn’s friend, Wendy Dinette testified similarly that she did not call the police or the district attorney’s office until six months after defendant’s arrest. Dinette also testified that she had never witnessed Lynn smoke methamphetamine in front of her until that day, and that Lynn “just pulled out the pipe and started smoking.”
In these circumstances, the introduction of evidence of defendant’s silence after his arrest, but before he was Mirandized, was harmless beyond a reasonable doubt. Officer Chen’s testimony was necessarily insignificant in the face of overwhelming prosecution evidence that defendant possessed the pipe and methamphetamine.
Because we find defendant suffered no prejudice from his counsel’s failure to object to the admission of his silence as evidence of his guilt, we need not consider defendant’s additional arguments that his counsel was ineffective for failing to object to defendant’s silence as not coming within the definition of an adoptive admission, and failing to object on the basis of Evidence Code section 352.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.