Opinion
F050627
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. RODNEY STANKEWITZ, Defendant and Appellant.
Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer , Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Dawson, J.
A jury convicted appellant, Rodney Stankewitz, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In a separate proceeding Stankewitz admitted three serious felony enhancements (Pen. Code, § 667, subd. (a)), a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)), and allegations that he had three prior convictions within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On June 13, 2006, the court sentenced Stankewitz to an aggregate term of 40 years to life as follows: 25 years to life on his assault conviction, three 5-year serious felony enhancements, and a stayed one-year prior prison term enhancement. On appeal, Stankewitz contends the court erred in overruling his Miranda objection; and 2) the prosecutor committed Doyle error and Griffin error during closing arguments. We will find that the court erred in staying the one-year prior prison term enhancement and strike this enhancement. In all other respects, we will affirm.
Miranda v. Arizona (1966) 384 U.S. 436.
Doyle v. Ohio (1976) 426 U.S. 610.
Griffin v. California (1965) 380 U.S. 609.
FACTS
On November 11, 2005, at approximately 6:30 p.m. Carlos Garcia was with his fiancée, Vickie King, watching the parking lot at a church in Fresno where a Bible study class was about to begin. Their attention was soon attracted to a man, later identified as Stankewitz, and a woman who were approximately 200 feet away arguing and pushing each other in an alley located on one side of the church. Garcia and King had both seen Stankewitz before in the area. As Stankewitz and the woman walked toward Garcia and King, Stankewitz glared at King just before she turned around and walked toward the church. Garcia was facing the church and leaning against a short brick fence, when Stankewitz suddenly approached him from the front, grabbed the back of Garcias head, and put a boomerang-shaped knife against his throat, nicking Garcia on the cheek and ear. Stankewitz then told Garcia, "You want a piece of me? Do you want some of me?" During this time Garcia looked Stankewitz straight in the eye and also noticed that Stankewitz was wearing a white tank top and blue Levis. Meanwhile, the woman with Stankewitz kept yelling "Let him go Rodney. Let him go."
King went inside the church and told other church members that Garcia needed help and to call the police. However, by the time the other church members went outside, Stankewitz had already released Garcia. Some of the church members detained Stankewitz but released him and allowed him to walk down the alley with his female companion. Stankewitz suddenly ran back to the group, said, "You guys want some of me?" and punched church member Daniel Bales in the mouth. Garcia then punched Stankewitz in the mouth, causing him to fall to the ground. At that point Garcia noticed that another man, later identified as Frank Lewis, was also holding a knife. Stankewitz pulled out his knife but both men and the unidentified woman took off running north in the alley just prior to the police arriving at the scene. Garcia identified Lewis from some pictures the officers showed him as the second man who was armed with a knife.
During the search of a nearby apartment complex, Fresno Police Officer Peter Ressler detained Stankewitz outside an apartment and took him to a location where Garcia identified him as the man who put the knife to his throat.
Officer Jeff Moosoolian took Stankewitz to the police station where he read Stankewitz his Miranda rights and asked if he understood them. Over defense counsels Miranda objection, Moosoolian testified that after Stankewitz indicated he did, Moosoolian asked him, "What happened tonight?" Stankewitz replied, "I dont know anything." Moosoolian then stopped the interview because he thought Stankewitz did not want to talk.
The defense did not present any witnesses. Instead, during closing argument defense counsel argued that the evidence was equally consistent with Lewis having assaulted Garcia with a knife and that for various reasons the testimony of Garcia, the prosecutions main witness, was not credible.
DISCUSSION
The Miranda Issue
Stankewitz contends that because Officer Moosoolian did not elicit a waiver of his Miranda rights, the officer infringed on his right to remain silent by asking Stankewitz "What happened tonight?" We will reject this contention.
"The prosecution had to prove by a preponderance of evidence that defendant knowingly and voluntarily waived his Miranda rights. [Citations.] A valid waiver may be express or implied. [Citation.] Although it may not be inferred `simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained [citation] it may be inferred where `the actions and words of the person interrogated clearly imply it. [Citation.]
"In determining whether a defendant waived his rights, the court must consider `the totality of the circumstances surrounding the interrogation. In Moran v. Burbine (1986) 475 U.S. 412, the court identified two distinct components of the inquiry: `First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.] [¶] . . . [¶] . . . Once it is determined that a suspects decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Citation.]" (People v. Cortez (1999) 71 Cal.App.4th 62, 69-70, italics added.)
Further in People v. Johnson (1969) 70 Cal.2d 541, the Supreme Court stated,
" `[W]e cannot accept appellants suggestion that because he did not make a statement-written or oral-that he fully understood and voluntarily waived his rights after admittedly receiving the appropriate warnings, his subsequent answers were automatically rendered inadmissible. Of course, the attendant facts must show clearly and convincingly that he did relinquish his constitutional rights knowingly, intelligently, and voluntarily, but a statement by the defendant to that effect is not an essential link in the chain of proof. On the other hand, mere silence of the accused followed by grudging responses to leading questions will be entitled to very little probative value in light of the inherently coercive atmosphere of in-custody interrogation. The government will have to prove more.
"Once the defendant has been informed of his rights and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them." (Id. at p. 557-558, italics added.)
Here, Officer Moosoolian read Stankewitz his Miranda rights prior to asking him any questions. Further, there is no evidence of intimidation, coercion, or deception and Stankewitz acknowledged that he understood these rights. Thus, even though Moosoolian did not ask Stankewitz if he waived his Miranda rights, we conclude that Stankewitz understood his Miranda rights and impliedly waived them by answering the question propounded by Moosoolian.
Stankewitz relies on U.S. v. Poole (9th Cir. 1987) 794 F.2d 462 (Poole), and Christopher v. State of Fla. (11th Cir. 1987) 824 F.2d 836, to contend that he invoked his Miranda rights when he told Moosoolian, "I dont know anything." However, we find these cases inapposite. In Poole, the court found that the defendant invoked his Miranda rights when in response to police interrogation he stated, " `he had nothing to talk about. " (Poole, supra, 794 F.2d at p. 466.) In Christopher the court found the defendant invoked his Miranda rights when in response to police questioning he stated: "Then I got nothing to say." (Christopher, supra, 824 F.2d at p. 842.) Unlike the instant case, in Poole and Christopher, the defendant in each case clearly stated that he did not want to continue talking with the officers. Here, Stankewitz did not state that he did not want to talk with the officers. Instead, he responded to Moosoolians inquiry by feigning not to know anything about the earlier assault. Further, we are not bound by the decisions of lower federal courts (People v. Torres (1990) 218 Cal.App.3d 700, 706) and extending the reach of the cited cases to the case at bar would contravene the Supreme Courts holding in Johnson that once the defendant has been advised of his rights and acknowledges understanding them, "his choosing to speak and not requesting a lawyer is sufficient evidence that he knows his rights and chooses not exercise them." (People v. Johnson, supra, 70 Cal.2d at p. 558) Accordingly, we conclude that the court did not err in overruling Stankewitzs Miranda objection.
The Alleged Doyle and Griffin Error
During the prosecutors initial closing argument the following colloquy occurred:
"[THE PROSECUTOR]: "Police talked to [Stankewitz]. They gave him an opportunity. They said, you know, read him his Miranda rights. Told him he had a right to remain silent. Did all of that. And they asked him a question, they said, `What happened tonight? What happened tonight? Whats that? Your chance to say what happened.
And what does he say. Officer Moosoolian told you he kind of leaned back, said, `I dont know anything.
"[DEFENSE COUNSEL]: Going to object on all the prosecutors comments.
"THE COURT: Say that Again.
"[DEFENSE COUNSEL]: Object with respect to all the prosecutors comments concerning an opportunity to speak."
"THE COURT: Overruled.
"[THE PROSECUTOR]: So hes a liar. Because [defense counsel] already conceded that he was there. . . ."
Stankewitz contends that through the argument quoted above the prosecutor improperly commented on his right to remain silent and on his failure to testify. Thus, according to Stankewitz, the prosecutor committed Doyle error and Griffin error. We disagree.
Doyle, supra, 426 U.S. at page 618, held that "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial."
Griffin, supra, 380 U.S. at page 615, held that neither the People nor the trial court may comment on a defendants failure to testify.
We do not construe the prosecutors argument quoted above as a comment on Stankewitzs failure to testify. Further, since we have concluded that Stankewitz did not invoke his Miranda rights, it follows that the prosecutor did not comment on Stankewitzs exercise of his right to remain silent. Accordingly, we reject Stankewitzs claims of Doyle error and Griffin error.
Alternatively we find that any Miranda, Doyle, or Griffin error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman ). "The Chapman test is generally applicable to error under the United States Constitution, including, specifically, the erroneous admission of involuntary statements [citation.]" (People v. Neal (2003) 31 Cal.4th 63, 66.)
Here Stankewitz did not present any defense witnesses. Instead, his defense consisted of arguing various reasons why Garcia was mistaken in identifying Stankewitz as the person who put a knife to his throat including that Garcia did not get a good look at his assailant and that no one other than Garcia testified to seeing Stankewitz with a knife. However, Garcia and King were both familiar with Stankewitz because they had previously seen him in the area and each of them identified Stankewitz as the man who assaulted Garcia by the brick wall. Additionally, the day of assault Garcia saw Stankewitz twice approaching him in the alley and he saw Stankewitz at a close distance when Stankewitz put a knife to his throat and again when Garcia punched Stankewitz. Further, while Stankewitz held the knife to Garcias throat, Stankewitzs female companion kept yelling, "Let him go Rodney. Let him go." Garcia also identified Stankewitz during an infield show up and at trial as the person who put the knife to his throat and King identified him in court as the person who had Garcia bent over the fence. Finally we note that the record also established that Stankewitz and Lewis did not resemble each other: Stankewitz was taller and much older than Lewis and on the day of the assault he had long hair whereas Lewis had short hair. Thus, in view of the strength of the prosecution evidence, we conclude that even if any of the errors complained of occurred, they were harmless beyond a reasonable doubt.
King testified that although Stankewitz had his back to her and she did not see the knife that Garcia testified Stankewitz put against his neck, she recognized Stankewitz as the man who had been arguing with the woman in the alley earlier. She also testified that she saw two cuts on Garcias ear after the assault that were bleeding and had not been there prior to the assault. Also, according to King, Stankewitz was taller than Lewis and he had long hair whereas Lewis had short hair.
The Prior Prison Term Enhancement
The trial court does not have discretion to stay a prior prison term enhancement and must either impose or strike the enhancement. (People v. White Eagle (1996) 48 Cal.App.4th 1151, 1521. Thus, the court erred when it stayed Stankewitzs prior prison term enhancement. Further, since the court imposed an unauthorized sentence when it stayed this enhancement we will strike the enhancement.
DISPOSITION
The judgment is modified to strike the prior prison term enhancement the trial court imposed. The trial court is directed to prepare an amended abstract of judgment that incorporates this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.