People v. Diaz

208 Cal. App. 3d 338, 255 Cal. Rptr. 91, 1989 Cal. App. LEXIS 67

• Court: California Court of Appeal
• Decided: January 31, 1989
• Docket: Docket Nos. H003254, H004443
• Status: Published

Opinions

Opinion

AGLIANO, P. J.

Defendant David Diaz appeals from a judgment of conviction entered upon a jury verdict finding him guilty of a violation of Penal Code sections 459 and 460, subdivision 1 (burglary of a residence).¹ The court also found defendant had suifered two prior serious felony convictions within the meaning of sections 667 and 1192.7 and sentenced defendant to a total term of fourteen years in state prison.

Since prejudicial error occurred within the meaning of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], the judgment of conviction must be reversed.

Statement of Facts

On May 11, 1986, Darlene Gomez was away from her residence from approximately 8 a.m. until 3:30 or 4 p.m. When she returned, the back door was open and her stereo and two speakers were missing. Gomez called the police who arrived within 15 to 20 minutes.

Officer Dario Estrabao was participating in an undercover “sting” operation conducted by the San Jose Police Department on May 11, 1986. At 5:30 p.m. on that date, defendant contacted Estrabao and was videotaped selling the stereo belonging to Gomez to another undercover officer.

The prosecution relied upon the videotape which contained statements by defendant implying he had stolen the stereo. In the conversation the undercover buyer objected to the fact that defendant had no patch cords for the stereo. Defendant responded, “That’s all I have. ... I remember them. ... I didn’t pay attention to that one line that goes from the stereo.” Defendant then explained he had been trying to contact Estrabao earlier that day, at “10 or 11,” but the line was busy. The undercover buyer again asked whether he had the cord. He replied, “No, man. I can’t get it either from where it was. No. I could try to get you one. It just slipped my mind.” Defendant also stressed that he worked alone. “There’s just one of me.”

Defendant conceded he was guilty of receiving stolen property, but sought to persuade the jury he was not the thief. He relied upon the absence of his fingerprints in Ms. Gomez’s home and his mother’s testimony that he was with her in Morgan Hill until about 4 p.m. on the day of the burglary.

Discussion

Defendant first contends the prosecutor engaged in misconduct during closing argument by referring to defendant’s failure to testify in violation of the rule established in Griffin v. California, supra, 380 U.S. 609.

In opening argument the prosecutor stated that defendant’s guilt of burglary was shown by defendant’s statements while disposing of the stolen property to the undercover officers. In response, defense counsel argued that defendant’s actions and statements indicated he was a seller of stolen property, a “fence” or “middleman,” rather than a burglar. Defense counsel also made the following argument: “Probably you might say, well, why doesn’t Mr. Diaz take the stand and tell us the names of the people that he bought the property from? I don’t think that’s an unreasonable wish on your part, but let me give you a hypothetical in that regard.” She then explained that “in a criminal society a snitch jacket is one of the most dangerous things a person can wear. More dangerous than I think you ever know. If he doesn’t tell us who he bought the property from, I can’t make him and the Courts cannot.”

In rebuttal, the prosecutor urged the jury to base its verdict on the evidence. The statements which defendant now challenges are the following: (1) “You can listen clearly on that tape. . . . He didn’t say he was the middleman. He didn’t say that he was a fence. The only person that said he was a fence or middleman is his attorney. Nowhere in the evidence does it say that he’s a middleman. He’s a fence.” (2) “How does he get in contact with these people? More importantly, where is there any evidence that suggests that he did that? Where is there any evidence that suggests he had any contact with any of these people? How does he all of a sudden get in contact with these people? There is no evidence of that.” (3) “We have absolutely no evidence whatsoever that says he’s a fence. You can watch that tape and watch that tape and watch that tape, but he never once says he’s a fence. He never once says he’s a middleman.” (4) “You are to reject the unreasonable and adopt the reasonable. That’s the situation we have here. We have no reasonable evidence whatsoever. No evidence at all in this case that suggests at all he is a fence. We have evidence from his own mouth from the tape that suggests that in fact he committed the burglary.”

“[T]he Fifth Amendment. . . forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Griffin v. California, supra, 380 U.S. 609, 615 [14 L.Ed.2d 106, 110].) However, Griffin error does not occur in every instance where the prosecutor comments on the state of the evidence or on the failure of the defense to call logical witnesses. (People v. Jackson (1980) 28 [168 Cal.Rptr. 603, 618 P.2d 149].) Here each of the asserted instances of Griffin error, when taken in context, referred to the videotape and other evidence and, as such, constituted proper argument.

However, the following comment by the prosecutor is distinguishable from the above remarks. “Now, if we are to believe this gentleman is only a fence, we need to say where is it? Who testified that he was a fence? Who came in and said he was a fence? Who testified or what evidence do we have that says I’m a middleman? That I didn’t steal this property and that someone else did.” (Italics added.) Throughout most of the argument the prosecutor asked the jury to consider the evidence for any indication that defendant was a fence. On this occasion, however, he erred. The prosecutor’s comment was improper because it focused on defendant’s failure to testify that someone else and not he stole the stereo. While brief and indirect, nonetheless the comment constituted Griffin error. We discuss its impact after reviewing a claim of additional Griffin error in a jury instruction.

Defendant contends the trial court improperly informed the jury it could consider defendant’s silence in determining guilt and that the instruction compounded the harmful effect of the prosecutor’s comment on defendant’s failure to testify.

The trial court first gave CALJIC No. 2.60: “It is the constitutional right of the Defendant in a criminal trial that he may not be compelled to testify. You must not draw any inference from the fact that he does not testify. Further, you neither discuss the matter nor permit it to enter into your deliberations in any way.” The court then gave CALJIC No. 2.61 and, according to the record, reversed its meaning by stating: “In deciding whether or not to testify, the Defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. The lack of testimony on the Defendant’s part will supply a failure ofproof by the People so as to support a finding against him on any such essential element.” (Italics added.) Correctly read, the second sentence of the instruction would have said, “No lack of testimony on the defendant’s part will supply a failure of proof. . . .” Significantly, the People have investigated the accuracy of the record. They neither seek correction nor contend the record is in error. We are, of course, bound by the record as it is thus presented.

Two cases have involved situations similar to the instant one, that is, a combination of improper comment on the defendant’s failure to testify and misinstruction of the jury on the issue. In People v. Williams (1971) 22 Cal.App.3d 34 [99 Cal.Rptr. 103], the prosecutor alluded to the defendant’s failure to testify and related it to the issue of motive, implying that defendant’s claims were not true. The reviewing court found the error was compounded by former CALJIC No. 2.61,² which improperly allowed the jury to “draw an inference from defendant’s silence if they [could] use it along with some other evidence.” (Id. at p. 45.) The Williams court reversed based on these and other errors. •

In People v. Vargas (1973) 9 Cal.3d 470, 474 [108 Cal.Rptr. 15, 509 P.2d 959], the prosecutor stated in his closing remarks, “And there is no denial at all that [the defendants] were there.” After defense counsel objected, the trial court admonished the jury to disregard the prosecutor’s statement. As in Williams, the court then gave former CALJIC 2.61. The Supreme Court held that both the remark and the instruction violated Griffin principles. In determining whether the errors were prejudicial, the court held the applicable test was whether the error was harmless beyond a reasonable doubt and that a reviewing court “ ‘must focus upon the extent to which the comment itself might have increased the jury’s inclination to treat the defendant’s silence as an indication of his guilt.’ ” (Id. at p. 478, italics omitted.) The Vargas court found no prejudice and distinguished the case from others on the grounds that neither the trial court nor the prosecutor had directly informed the jury it could consider the defendant’s failure to testify in determining his guilt, the evidence against defendant was overwhelming, and the trial court had admonished the jury.

In the instant case, the prosecutor’s comment was not tempered by admonishment from the court. While the prosecutor’s comment may not have directly suggested that the jury should draw adverse inferences from defendant’s failure to testify, the instruction unfortunately did so.

The evidence defendant was the burglar was not overwhelming. Defendant was not placed at the scene of the burglary. The prosecutor relied primarily on defendant’s statements on the videotape. Some were inaudible. Those audible were not necessarily inconsistent with defendant’s role as receiver of the stolen property. Defendant’s observation of the cords and his inability to retrieve them need not have proceeded from his presence in the burglarized house. His admission he worked alone did not restrict his activity to burglary. Thus, we cannot conclude the Griffin errors did not “ ‘serve to fill an evidentiary gap in the prosecution’s case,’ . . .” (People v. Vargas, supra, 9 Cal.3d 470, 481.) The errors were not harmless beyond a reasonable doubt.

In light of the decision we reach we deem it unnecessary to resolve defendant’s remaining contention.

The judgment is reversed. Defendant also seeks a writ of habeas corpus. The petition is denied as moot.

Capaccioli, J., concurred.

1 All further references are to the Penal Code unless otherwise noted.

2 Former CALJIC No. 2.61 provided in relevant part as follows: “. . . No lack of testimony on defendant’s part will supply a failure of proof by the People so as to support by itself a finding against him on any such element.” (Italics added.)