PEOPLE v. TOM

Respondent’s Supplemental Brief

Cal.October 15, 2013

Jn the Supreme Court of the State of Caltfornta THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. $202107 v. RICHARD TOM, SUPREME COURT Defendant and Appellant. F [ LL E In re OCT 15 2013 RICHARD TOM, Frank A. McGuire Clerk On Habeas Corpus. Deputy First Appellate District, Division Three, Case Nos. A124765, A130151 San Mateo County Superior Court, Case No. SC064912 The Honorable H. James Ellis, Judge RESPONDENT’S SUPPLEMENTAL BRIEF ~ KAMALA D., Harris Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General JEFFREY M, LAURENCE Supervising Deputy Attorney General State Bar No. 183595 ‘455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5897 Fax: (415) 703-1234 Email: Jeff.Laurence@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page ASRUMENL.....eee eceecseeeseeeesseeeesecseceseereseeeseeessaeesesessessesesscseeseaserssssadsosnseeds Salinas controls this case and compels reversal of the Court Of Appeal’s deciSiOn........ccececscssecesecesecesseceeceesesereaeeseeeseeseeneceaeenses 1 A. The Salinas AeCiSiOn ......cccsssccesscecestcessecesnsceseeeseeesecaeeeeseeensaes 1 B. Appellant did not expressly invokehisrightto silence......... 5 CONCIUSION....... cc ceseseeesneeeseeesseetssereeesneecssaeeenecevenseceseeesasenseecsseessessesessesesaee 7 TABLE OF AUTHORITIES Page CASES Berghuis v. Thompkins (2010) 560 U.S, 370 [130 S.Ct. 2250]... eecccesseseeseeeereseeneeeerensseaeenesenss 4 Griffin v. California (1965) 380 U.S, 609oeescsscsessssesnesesesesenesesesessensnensesereesaeaeeentsceseas 2,5 Marks v. United States | (1977) 430 U.S. 188oeeeccesesesessecseserseseseseseseseeneneneecseeeeecaeetenenseenssersaees 5 Miranda v. Arizona (1966) 384 U.S. 436.ecsccsessesseesssssesesesnessssseneseseesessneeneecaseeeanereens 1, 2, 4, 6 Roberts v. United States (1980) 445 U.S. 552ecceceeescsessssssescsesetecseensneseseseeaeessenenenenenenenees 3,4 Salinas v. Texas (2013) US. [133 S.Ct. 2174)ecnaneceeevsnersuseeeceeesspassim CONSTITUTIONAL PROVISIONS United States Constitution Fifth Amendment............ceccscsseeeeserees «ceveacceccescessessevessseesaceeessessneeneener 2, 3, 4, 6 il ARGUMENT On October 2, 2013, this Court invited the parties to submit supplemental briefing “addressing how,ifat all, the instant matteris affected by the United States Supreme Court decision in Salinas v. Texas (2013) =-U.S.___—*[133 S.Ct. 2174].” The Salinas decision resolves the central constitutional question at issue in favor of respondent and mandates reinstatement of petitioner’s conviction. | SALINAS CONTROLS THIS CASE AND COMPELS REVERSAL OF THE COURT OF APPEAL’S DECISION A. The Salinas Decision In Salinas, petitioner was suspected by the police of involvementin a double murderin which the killer used a shotgun. (Salinas v. Texas, supra, 133 S.Ct. at p. 2178.) He voluntarily met with the police and was subject to extensive questioning over the course of an hour. He wasnotplaced in custody, nor given any warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. (Salinas, supra, at p. 2178.) Although petitioner was largely responsive to the questions asked, at one point, “when asked whetherhis shotgun ‘would matchthe shells recovered at the scene of the murder,’ petitioner declined to answer. Instead, petitioner ‘[l]ooked downat the floor, shuffled his feet, bit his bottom lip, cl[e]nchedhis handsin his lap, [and] beganto tighten up.’ After a few momentsofsilence, the officer asked additional questions, which petitioner answered.” (Ibid., citations omitted, alterations in original.) Petitioner was arrested at the conclusion of the interview. (/bid.) Attrial, the prosecution used petitioner’s silence in responseto the officer’s question as substantive evidenceofhis guilt. (Ibid.) Petitioner was convicted and his conviction was affirmed on appeal. (Ud. at pp. 2178-2179.) The United States Supreme Court granted certiorari “to resolve a division of authority in the lower courts over whetherthe prosecution may use a defendant’s assertion ofthe privilege against self-incrimination during a noncustodialpolice interview aspart of its case in chief.” (Salinas, supra, at p. 2179.) However, Justice Alito, writing for a three- Justice plurality, concluded that the court need notresolvethat dispute because petitioner had not invokedhis right to remain silent. (Salinasv. Texas, supra, 133 S.Ct. at p. 2179 (plur. opn. of Alito, J.).) The plurality explained, “To preventthe privilege from shielding information not properly within its scope, we have long held that a witness who‘“desires the protection of the privilege . .. must claim it” at the time herelies on it.” ([bid., alteration in original.) The plurality noted the importance of requiring an express invocation to provide sufficient notice to the government—which may wishto challenge the invocation or grant immunity—and “give[] courts tasked with evaluating a Fifth Amendment claim a contemporaneousrecord establishing the witness’ reasons for refusing to answer.” (Salinas, supra, at pp. 2179-2180.) The plurality noted that the Supreme Court has recognized only two exceptions to the express invocation requirement. Thefirst exception arises at the time of the defendant’s trial. A “criminal defendant need not take the stand and assert the privilege at his owntrial,” because “a criminal defendanthas an ‘absolute right notto testify.’” (Salinas, supra, at p. 2179, citing Griffin v. California (1965) 380 U.S. 609.) No such unqualified right to silence, however, exists outside the courtroom. (/bid.) . The second exception is “that a witness’ failure to invoke the privilege must be excused where governmental coercion makeshis forfeiture of the privilege involuntary.” (Salinas, supra, at p. 2179.) Theplurality identified several examples to describe the scope of this exception. It pointed to Miranda, which held “that a suspect who is subjected to the ‘inherently compelling pressures’ of an unwarned custodial interrogation need not invokethe privilege.” (/d. at p. 2180, quoting Miranda, supra, 384 US. at pp. 467-468 & fn.37.) “Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege “unless [he] fails to claim [it] after being suitably warned.” [Citation.]” (/bid., alterations in original.) The plurality likewise noted that no affirmative assertion of the Fifth Amendment privilege was necessary whenit would subject the witness to loss of a governmental benefit, such as public employment, or woulditself tend to incriminate the witness. (/bid.) The plurality observed, “Theprinciple that unites all of those cases is that a witness need not expressly invoke the privilege where some form ofofficial compulsion denies him ‘a “free choice to admit, to deny, or to refuse to answer.” [Citations.]” (/bid.) The plurality made clear that no exception existed for a failure to affirmatively assert the privilege during a voluntary exchangein the absence of a custodial interrogation. (Salinas, supra, at pp. 2180-2181.) The court’s ruling also did not turn on whether the defendant was in custody at the time of the silence. For example, the plurality pointed to Roberts v. United States (1980) 445 US. 552, as exemplifying the affirmative assertion requirement. (Salinas, supra, at p. 2181.) Roberts affirmeda trial court’s use of a defendant’s failure to cooperate with authorities throughoutthe three-year period of his prosecution as a reason for a harsher sentence. Roberts rejected the claim that the use ofthe defendant’s refusal to cooperate violated his Fifth Amendmentprivilege, since he neverasserted thatprivilege as a basis for his refusal during the entire period he wasincarcerated pendingtrial and sentencing. (Robertsv. United States, supra, 445 U.S. at pp. 558-560.) Roberts noted, “if petitioner believed that his failure to cooperate was privileged, he should have said so at a time whenthe sentencing court could have determined whetherhis claim waslegitimate.” (Id. at p. 560.) Roberts also rejected the defendant’s assertion that the Miranda warningshe was given upon being © placed in custody obviated the need for such anassertion, explainingthat the exception to the assertion requirement afforded by Miranda “doesnot apply outside the context of the inherently coercive custodial interrogations for which it was designed.” (bid.) Theplurality also relied on Berghuis v. Thompkins (2010) 560 U.S. 370 [130 S.Ct. 2250], in rejecting petitioner’s argumentthat silence in the face of official suspicionsis sufficient. (Salinas, supra, at pp. 2181-2182.) Berghuis held that a defendant’s post-Mirandasilence did not constitute an invocation of the Fifth Amendmentprivilege where, following an extended silence, the defendant voluntarily answered the officers’ questions. (Berghuis v. Thompkins, supra, 130 S8.Ct. at pp. 2259-2260.) While recognizing that Berghuis involved admission of subsequent statements rather than the silenceitself, the plurality observed that the logic animating the Berghuis decision “applies with equal force: A suspect who stands mute has not done enoughto put police on notice that he is relying on his - Fifth Amendmentprivilege.” (Salinas, supra, at p. 2182, fn. omitted.) The plurality also rejected concernsthat an express invocation requirement would present practical problems for review, noting, “our cases have long required that a witness assert the privilege to subsequently benefit from it. That rule has not proveddifficult to apply.” (Ud. at p. 2183.) The plurality summed upits ruling as follows: Petitioner’s Fifth Amendmentclaim fails because he did not expressly invokethe privilege against self-incrimination in responseto the officer’s question. It has long been settled that the privilege “generally is not self-executing” and that a witness whodesires its protection “‘must claim it.’” [Citations.] Although “noritualistic formula is necessary in order to invoke the privilege,” [citation], a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendmentclaim is affirmed. (Id. at p. 2178.) In his concurring opinion, Justice Thomas, joined by Justice Scalia, went further. (Salinas v. Texas, supra, 133 S.Ct. at p. 2184 (conc.opn. of © Thomas,J.).) Justice Thomas concludedthat, even if the petitioner had invokedhisrightto silence, his claim wouldstill fail because the prosecutor’s comments duringtrial on his earlier silence “did not compel him to give self-incriminating testimony.” (/bid.) Justice Thomas questioned the continuing constitutional validity of Griffin v. California (1965) 380 U.S. 609, and refused petitioner’s invitation to extend its “penalty” analysis outside the trial context from whichit arose, namely a prosecutor’s commenton a defendant’s failure to take the stand. (Salinas, supra, 133 S.Ct. at p. 2184.) Although Justices Thomasand Scalia did not join in the plurality opinion, their concurring opinion is broader than and subsumesthe plurality’s decision. Accordingly, the plurality opinion is properly viewed as stating the controlling principles. (See generally Marks v. United States (1977) 430 U.S. 188,193.) B. Appellant Did Not Expressly Invokehis Right to Silence As weexplained in our opening brief, appellant never expressly invokedhis right to silence as required under Salinas. As detailed in ArgumentII of our opening brief at pages 39 to 40, and in ourreply brief at pages 12 to 16 and 20to 21, appellant was largely cooperative and spoke freely with the officers throughout the investigation. (4 RT 678, 684-686, 688-689, 693-694, 715, 724-725.) His only assertion of silence occurredat the stationhouse when he informed the officers that his attorney advised him not to make any statement without the attorney present (6 SRT 353- 354), a fact notelicited at trial or commented on by the prosecution. Asin Salinas, appellant neveraffirmatively invokedhisright to silence throughoutthe relevant period of his encounter with the police, either before or after his arrest. Critically, his failure to ask aboutthe victims cannot be viewedas in implied invocation sufficient to activate any Fifth Amendmentprotection. (See Salinas v. Texas, supra, 133 S.Ct. at pp. 2178.) The court below concluded that “the inherently coercive | | circumstances attendantto a de facto arrest” are by themselves sufficient to trigger a defendant’s Fifth Amendmentprotection based on meresilence, even in the absence ofMiranda warnings. (Typed Opn.at pp. 23-24.) Salinas rejected this approach, observing instead that “[t]he critical question is whether, under the ‘circumstances’ofthis case, petitioner was deprived ofthe ability to voluntarily invoke the Fifth Amendment.” (Salinas v. Texas, supra, 133 S.Ct. at p. 2180, italics added.) As in Salinas, “(w]e have before usnoallegation that [appellant’s] failure to assert the privilege was involuntary, and it would have been a simple matter for him to say that he was not answering the officer’s question on Fifth Amendment grounds.” (Ibid.; see also id. at p. 2184 [“So long as police do not deprive a witness of the ability to voluntarily invoke the privilege, there is no Fifth Amendmentviolation”].) In this case, there was no suggestion of police conductthat deprived appellant of his ability to invoketheprivilege. Indeed, appellant ultimately did so before any interrogation began. In light of Salinas, the lower court’s finding of a Fifth Amendment violation from comment on appellant’s uncompelled silence is erroneous. CONCLUSION Accordingly, respondent respectfully requests that the Court of Appeal’s decision be reversed and the case remandedfor further proceedings on the remaining issues. Dated: October 14, 2013 SF2012204796 40785799.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General JEFFREY M. LAURENCE Supervising Deputy Attorney General Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S SUPPLEMENTAL BRIEF uses a 13 point Times New Romanfont and contains 1,845 words. Dated: October 14, 2013 KAMALA D. HARRIS Attorney General of California M$ JEFFREY M. LAURENCE Supervising Deputy Attorney General Attorneysfor Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Richard Tom No.: $202107 I declare: Iam employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the businesspractice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On October 15, 2013, I served the attached RESPONDENT’S SUPPLEMENTALBRIEF by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Marc J. Zilversmit Law Offices of Marc Zilversmit 523 Octavia Street San Francisco, CA 94102 (2 copies) The Honorable Stephen Wagstaffe District Attorney San Mateo County District Attorney's Office 400 County Center, Third Floor Redwood City, CA 94063 County of San Mateo Main Courthouse-Hall of Justice Superior Court of California 400 County Center Redwood City, CA 94063-1655 | First Appellate District Division Three Court of Appeal of the State of California 350 McAllister Street San Francisco, CA 94102 First District Appellate Project (BY E-MAIL: by transmitting a PDF version of this documentvia electronic mail to: eservice@fdap.org) Michael T. Risher Attorney atLaw ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on October 15, 2013, at San Francisco, California. J. Wong Declarant Jj hem Signature