Filed 8/21/14 P. v. Weese CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063852
Plaintiff and Respondent,
v. (Super. Ct. No. SCD242620)
SHANE M. WEESE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael T.
Smyth, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Anthony DaSilva and Randall D.
Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. A jury found Shane M. Weese guilty of battery with serious bodily injury (Pen.
Code, § 243, subd. (d)),1 and assault by means likely to produce great bodily injury
(§ 245, subd. (a)(4)), along with making true findings that Weese personally inflicted
great bodily injury (§§ 1192.7 subd. (c)(8), 12022.7, subd. (a)). The trial court sentenced
Weese to seven years in prison.
Weese contends that (1) in the jury instruction on eyewitness identification
(CALCRIM No. 315), the trial court should have sua sponte deleted language referring to
the certainty of the witness's identification; (2) the verdict is not supported by substantial
evidence because the victim was too intoxicated to reliably identify Weese as the
perpetrator; (3) the trial court violated Weese's federal constitutional rights when it
excluded hearsay statements by a witness unavailable to testify at trial; and (4) the trial
court erred in not granting a mistrial after a police detective testified during defense
counsel's cross-examination that Weese invoked his right to counsel during a police
interview. We conclude that Weese's arguments are without merit, and we accordingly
affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The victim in this case, Deborah Howard-Mamie, was a 51-year-old homeless
woman with an alcohol abuse problem who was living on the streets of downtown San
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 Diego with her husband Rick Mamie.2 Deborah was found badly injured shortly after
7:00 p.m. on August 13, 2012, in the downtown area, with multiple facial fractures and
swelling to her eyes caused by blunt force trauma. Deborah was taken to the hospital,
where her blood alcohol level was measured at .427 at 8:28 p.m., and she was determined
to have a cerebral contusion. Deborah stayed in the hospital for 10 days recovering from
her injuries.
San Diego Police Detective Richard McCoy was assigned to investigate the
assault. He first spoke to Deborah in a brief telephone conversation on August 15, 2012.
In that conversation, Deborah told Detective McCoy that "Shane" had assaulted her. On
August 16, police located Weese on the streets as fitting the description of "Shane" given
by Deborah, arrested him for various minor offenses and then questioned him about
Deborah's assault. Weese spoke to Detective McCoy for approximately 15 minutes and
denied being involved in the assault.
Also on August 16, Detective McCoy met with Deborah in the hospital and
showed Deborah a photographic lineup, from which Deborah identified Weese as the
perpetrator. Deborah told Detective McCoy that although she did not remember the
initial first hit by Weese, she remembered getting hit by him and was "as positive as I can
be it was him." Weese was charged with battery with serious bodily injury (§ 243, subd.
(d)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), with
2 To avoid confusion, we will refer to Deborah and Rick by their first names and intend no disrespect by doing so.
3 further allegations that Weese personally inflicted great bodily injury (§§ 1192.7, subd.
(c)(8), 12022.7, subd. (a)).
Deborah testified at trial that she first met Weese about 2:00 p.m. on August 13,
2012, while she, Rick and other transients were talking about how to come up with
money to buy alcohol for the day. A mutual friend, Rodney, introduced Weese to the
group, and Weese, Rodney and Rick went to the drugstore to buy alcohol. A while later,
Deborah went to look for Rick and the others, and she found them a short distance away
drinking vodka from a 1.75 liter bottle. Rodney was passed out, and Rick was
intoxicated to the point that it appeared he had alcohol poisoning. Deborah called 911,
and paramedics arrived and took Rick to a detoxification facility.
Deborah testified that after she called 911, she and Weese moved down the street
to sit and drink in front of the Salvation Army. While they were drinking, Deborah's
friend Laurens Martin came by and joined them. According to both Deborah's and
Martin's testimony, Weese made sexual advances to Deborah while the three were sitting
together. As Deborah described it, Weese repeatedly put a hand on her leg and said
"We're going to fuck" and "I'm going to fuck you." Deborah removed Weese's hand and
said "no." Because Deborah was uncomfortable with Weese's behavior, she left and
walked a short way to where she kept her possessions and took a nap.
According to Deborah's testimony, she woke up from her nap about an hour later
and walked across downtown to a grocery store to use the restroom. While on her way
back, she saw Weese and Martin on the street in a different area, still drinking. Martin
was very intoxicated and almost passed out. Weese offered Deborah a drink, but she
4 declined because she felt uncomfortable with Weese. Weese grabbed Deborah by both
arms and said something sexual. Deborah started to walk away and told Weese to leave
her alone. Deborah testified that Weese hit her two times on the left side of the face. She
stumbled away and passed out, which she believed was caused by her injuries, not her
intoxication.
During Martin's testimony, he remembered drinking with Weese and Deborah and
then continuing to drink with Weese in a different location. Martin had an alcoholic
blackout after about 5:00 p.m., when he went to line up for dinner at the Salvation Army,
and he had no memory of Weese assaulting Deborah.
Weese testified in his own defense and denied ever hitting Deborah or making
sexual advances. Weese also testified that he did not remember being with Martin at any
time on August 13. Weese stated that because of his intoxication, he had no memory of
anything that happened after dusk on August 13, but he believes that he did not injure
Deborah while in an alcoholic blackout because he had no blood on his clothes in the
morning, his hands did not hurt, and he could not understand what his motive would have
been for assaulting Deborah.
The jury convicted Weese on both counts. After granting Weese's motion to strike
his prior serious and violent felony and his prior serious felony convictions (§§ 667,
subds. (a)(1), (b)-(i), 1170.12, 668), the trial court sentenced Weese to seven years in
prison.
5 II
DISCUSSION
A. The Trial Court Did Not Err by Not Sua Sponte Modifying the Jury Instruction on Eyewitness Identification
The trial court instructed the jury with CALCRIM No. 315 on how to evaluate
eyewitness testimony.3 Among the factors that CALCRIM No. 315 instructs the jury to
consider in evaluating eyewitness testimony that identifies a defendant is "[h]ow certain
was the witness when he or she made an identification?" (CALCRIM No. 315.) Weese
contends that without any request from defense counsel, the trial court should have sua
sponte modified CALCRIM No. 315 to remove the reference to the witness's certainty
because "[d]efinitive scientific research demonstrates that whether a witness is certain is
irrelevant to whether an eyewitness identification is accurate." Weese further contends
3 The court instructed with CALCRIM No. 315 as follows: "You have heard eyewitness testimony identifying the defendant. As with other witnesses, you must decide whether an eyewitness gave truthful and accurate testimony. In evaluating identification testimony, consider the following questions: Did the witness know or have contact with the defendant before the event; how well could the witness see the perpetrator; what were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation; how closely was the witness paying attention; was the witness under stress when he or she made the observation; did the witness give a description, and how does that description compare to the defendant; how much time passed [between] the event and the time when the witness identified the defendant; was the witness able . . . to pick the perpetrator out of a group; did the witness ever fail to identify the defendant; did the witness ever change his or her mind about the identification; how certain was the witness when he or she made an identification; are the witness and the defendant of different races; was the witness able to identify the defendant in a photographic or physical lineup; were there any other circumstances affecting the witness's ability to make an accurate identification."
6 that because the jury heard testimony that Deborah was certain of her identification of
Weese despite her high blood alcohol level during the assault, the purported error in
failing to modify CALCRIM No. 315 was prejudicial to Weese.
The Attorney General argues that Weese's objection to CALCRIM No. 315 is
forfeited because it was not raised in the trial court.4 Without deciding whether the
argument is forfeited, we will resolve Weese's contention on the merits.
On more than one occasion, our Supreme Court has rejected substantially the same
argument that Weese makes here in the context of the predecessor instruction to
CALCRIM No. 315, which stated that the jury should consider, among other factors,
"[t]he extent to which the witness was either certain or uncertain of the identification."
(CALJIC No. 2.92.)
First, in People v. Wright (1988) 45 Cal.3d 1126, 1141 (Wright), our Supreme
Court generally approved all of the various eyewitness identification factors set forth in
CALJIC No. 2.92, including certainty of identification, as long as they are set out in a
neutral manner and do not take a position on the impact of the factors.
Next, in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232, our Supreme Court
rejected the defendant's argument that the portion of CALJIC No. 2.92 referring to
4 When a defendant fails to object to an instruction in the trial court, an appellate challenge to the instruction is cognizable only if defendant's substantial rights are implicated by the purportedly erroneous instruction. (People v. Cleveland (2004) 32 Cal.4th 704, 750; §§ 1259, 1469.) "Substantial rights are affected if the error 'result[s] in a miscarriage of justice, [i.e.,] making it reasonably probable defendant would have obtained a more favorable result in the absence of error.' " (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2.)
7 witness certainty should not have been given because an expert witness testified without
contradiction that "a witness's confidence in an identification does not positively correlate
with its accuracy." Johnson held that the instruction was proper despite the expert
witness testimony because it allowed the jury to decide what weight to give to the
witness's certainty of identification in light of all of the evidence. (Johnson, at pp. 1231-
1232.)
Finally, People v. Ward (2005) 36 Cal.4th 186 (Ward) rejected the defendant's
contention that "the trial court erroneously included the 'level of certainty' factor" in
CALJIC No. 2.92 and should have modified it with language casting doubt on a witness's
subsequent in-court identification of a defendant after an out-of-court identification.
(Ward, at p. 213.) Ward concluded that (1) there was no duty for the trial court to sua
sponte modify the instruction to delete the "level of certainty factor"; and (2) that any
error would be harmless in light of an expert's testimony that there was no correlation
between an eyewitness's level of certainty and the accuracy of his or her identification.5
(Ward, at pp. 213-214.)
Following our Supreme Court, intermediate appellate courts have rejected
attempts to challenge CALJIC No. 2.92's reference to eyewitness certainty. In People v.
Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303, the defendant argued that in light of
5 Here, analogous to the expert testimony in Ward discounting the significance of the certainty of a witness's identification, Weese presented expert testimony that Deborah's memory and certainty of Weese hitting her was not dispositive because alcoholics often engage in "confabulation" in which they manufacture memories when they are uncertain of what happened during an episode of extreme intoxication.
8 studies that "have shown a lack of correlation between the degree of confidence an
eyewitness expresses in her identification and the accuracy of that identification," it was
error for CALJIC No. 2.92 to "inform[] the jurors to consider the witness's certainty of
identification, thereby leading the jurors to believe that the more certain the witness is the
more likely the identification is correct." Citing Wright, supra, 45 Cal.3d 1126, Gaglione
explained that because the instruction does not take a position on the significance of the
witness's certainty but merely calls attention to certainty as a factor, the instruction was
proper. (Gaglione, at p. 1303.) Similarly, People v. Sullivan (2007) 151 Cal.App.4th
524, 561, rejected the defendant's argument that the trial court erred by failing to sua
sponte delete the reference to witness certainty from CALJIC No. 2.92. Also relying on
Wright, Sullivan adopted Gaglione's reasoning and concluded that a neutral reference to
eyewitness certainty was permitted. (Sullivan, at pp. 561-562.)
We are persuaded by the case law cited above that Weese's challenge to
CALCRIM No. 315 is without merit. Under our Supreme Court's approach, despite the
fact that some studies discount the significance of an eyewitness's certainty in assessing
the accuracy of an identification, the jury may be instructed to focus on eyewitness
certainty if, like CALCRIM No. 315, the instruction is neutral and leaves it to the parties
to present expert testimony, if desired, on whether a witness's certainty has any relevance
in the specific case. (Wright, at p. 1143 [the effect of any particular factor "is best left to
argument by counsel, cross-examination of the eyewitnesses, and expert testimony where
appropriate"].)
9 B. Weese's Challenge to the Sufficiency of the Evidence Lacks Merit
Weese contends that insufficient evidence supports the verdict because Deborah's
testimony was the only evidence linking Weese to the assault, and Deborah was too
intoxicated during the assault to be able to accurately identify Weese as the perpetrator.
According to Weese, based on the fact that Deborah had a blood alcohol level of .427
when she arrived at the hospital, "there is no reasonable hypothesis where [Deborah] was
not profoundly impaired by alcohol at the time of the incident" and accordingly unable to
make a reliable identification of Weese.6
When reviewing a challenge to the sufficiency of the evidence, we "presume[] in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence," and we "examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence — evidence that is
reasonable, credible and of solid value — such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978,
1053.) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests guilt and
6 We note that Weese's argument incorporates an erroneous understanding of the facts. He contends that Deborah's blood alcohol was measured 12 hours after the assault, and that accordingly her blood alcohol level at the time of the assault must have been much higher than .427, because it had dropped for 12 hours. In fact, all of the evidence shows that Deborah was attacked sometime during the evening of August 13 and then transported to the hospital, where she was received around 7:50 p.m., and her blood sample was drawn at 8:28 p.m. Accordingly, both the attack and the drawing of the blood took place on the evening of August 13, not 12 hours apart.
10 the other innocence, it is the jury, not the appellate court that must be convinced of the
defendant's guilt beyond a reasonable doubt." (Id. at pp. 1053-1054, italics added.) " 'If
the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing
court that those circumstances might also reasonably be reconciled with the innocence of
the defendant will not warrant interference with the determination of the jury.' " (People
v. Love (1960) 53 Cal.2d 843, 850-851, italics added.)
Weese's argument centers on the testimony of his expert witness, Dr. Clark Smith,
describing the effect on memory of a high blood alcohol level. Dr. Smith testified that in
light of Deborah's blood alcohol level of .427 when she arrived at the hospital, it was
more likely than not that Deborah was in an alcoholic blackout during the assault and
actually remembers little or nothing about the assault. According to Dr. Smith, Deborah
probably unknowingly manufactured a memory of the assault where none actually
existed through a process known as "confabulation." We note, however, that Dr. Smith
also acknowledged that Deborah had a high tolerance to alcohol given that she did not die
from a blood alcohol level of .427, and that tolerance to alcohol will decrease the effect
that alcohol has on a person's memory. Further, Dr. Smith testified that although he
believed it was more likely than not that Deborah was in an alcoholic blackout during the
assault, it was possible that she was not.
In contrast to Dr. Smith's testimony, Deborah testified that she had experienced
alcoholic blackouts twice in her life, but not during Weese's assault. Deborah stated that
although her memory of some of the details of the assault were fuzzy in the days
immediately after it, her memory became more sharp over time. The improvement in
11 Deborah's memory was consistent with the testimony of Deborah's treating doctor, who
explained that a victim of a brain contusion will often regain memory as the brain injury
heals. That same doctor also testified that a high blood alcohol level does not necessarily
mean that a person will lose the ability to recall or form memories. Moreover, Deborah
testified that she was certain that it was Weese who attacked her, and she did have a
memory of the assault. Indeed, beginning with Deborah's first conversation with
Detective McCoy on August 15, 2012, Deborah consistently stated that she was assaulted
by Weese.
It is the role of the jury to made a determination on witness credibility. (People v.
Smith (2005) 37 Cal.4th 733, 739.) Here, exercising that role, the jury could reasonably
have rejected Dr. Smith's opinion about Deborah being in an alcoholic blackout and
credited Deborah's testimony that she remembered Weese assaulting her. We therefore
find no merit to Weese's challenge to the sufficiency of the evidence.
C. The Trial Court Did Not Err by Excluding Hearsay Statements by an Unavailable Witness
Next, we consider Weese's argument that the trial court violated his constitutional
right to a fair trial, due process and compulsory process by excluding hearsay statements
made by a witness who was not available to testify at trial.
During motions in limine, the parties sought a ruling on the admissibility of
hearsay statements made by Richard Purcell, who spoke to a police officer and a
firefighter at the scene where Deborah was found injured on the evening of August 13,
2012. Based on the trial court's description of the police officer's report and notes from a
12 defense investigator who interviewed the firefighter, Purcell approached as the firefighter
and police officer were on the scene and stated that he had been drinking with Deborah
earlier that day. As the trial court recounted the statements, Purcell "described himself as
having a couple of sips and leaving because he was already drunk." The trial court
explained that there was no information about "the timeframe of when he was supposedly
drinking with her. . . . The suggestion was that it was hours earlier, earlier in the day."7
Defense counsel sought to have Purcell's hearsay statements admitted as
spontaneous declarations under Evidence Code section 1240 or as evidence of third party
culpability. The trial court rejected defense counsel's arguments and excluded the
evidence. We apply an abuse of discretion standard of review to the trial court's ruling
excluding the evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1242 (Prince).)
Relying upon Chambers v. Mississippi (1973) 410 U.S. 284 and Green v. Georgia
(1979) 442 U.S. 95, Weese contends the trial court was required to admit the evidence of
Purcell's hearsay statements pursuant to the constitutional right to a fair trial, due process
and compulsory process. According to Weese, the hearsay statements were evidence of
Purcell's culpability for the assault on Deborah and thus were so critical to Weese's
defense that they were equivalent to the third party confessions that were wrongly
excluded from evidence in Chambers and Green. As we will explain, we disagree.
7 The trial court specifically rejected defense counsel's attempt to describe Purcell as having said that he had "just" been drinking with Deborah.
13 For third party culpability evidence to be admissible under California law,
" ' "there must be direct or circumstantial evidence linking the third person to the actual
perpetration of the crime." ' " (Prince, supra, 40 Cal.4th at p. 1242, italics omitted.)
Further, "the exclusion of weak and speculative evidence of third party culpability does
not infringe on a defendant's constitutional rights." (People v. Gonzales (2012) 54
Cal.4th 1234, 1261.)
Here, any inference of third party culpability from Purcell's hearsay statements
was extremely weak. Purcell's statements establish nothing more than that he
encountered Deborah at some point during the day on which she was assaulted and spent
a short time drinking with her. Nothing in those statements constitutes direct or
circumstantial evidence that Purcell was the perpetrator of the assault instead of Weese.8
Accordingly, the trial court did not violate Weese's constitutional rights by excluding
Purcell's hearsay statements.
8 Weese also contends that even if not rising to the level of third party culpability evidence, the admission of Purcell's hearsay statement should have been admitted as "absolutely critical" to Weese's defense because it cast doubt on Deborah's testimony on the timing of events in that Purcell's statement suggested that Deborah was drinking with him after the time that she remembered being attacked by Weese. We reject Weese's argument for two reasons. First, as the trial court described Purcell's statements, Purcell did not state that he was drinking with Deborah shortly before she was attacked, but only that he had been drinking with her earlier that day. Second, to the extent Purcell's statement was relevant to Weese's defense, its relevance was to attack Deborah's credibility, as Purcell's statement contradicted Deborah's testimony that on August 13 she drank only with Weese, Martin and Rick. As Purcell's hearsay statement had only minor relevance to Weese's defense, its exclusion did not implicate Weese's due process rights. (People v. Boyette (2002) 29 Cal.4th 381, 428 [" 'excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense' "].)
14 D. The Trial Court Did Not Err in Denying the Motion for Mistrial Based on a Police Detective's Testimony That Weese Asked for an Attorney During Police Questioning
The final issue is whether the trial court erred in denying Weese's motion for a
mistrial after Detective McCoy mentioned during cross-examination by defense counsel
that Weese had terminated his police interview and requested an attorney.
Specifically, during cross-examination defense counsel asked Detective McCoy
about a scratch on Weese's nose that appears in photographs taken when Weese was
arrested, which Weese had claimed was from a sunburn. Detective McCoy testified that
Weese "had mentioned he wanted to talk to an attorney, so I did not have an opportunity
to ask him how he received [the scratch]."
In a conversation with counsel at the end of the court day, the trial court brought
up Detective McCoy's statement about Weese mentioning he wanted to talk to an
attorney, observing that it was "a pretty stupid thing to have said for a 22-year detective,"
because it improperly informed the jury that Weese had invoked his right to counsel. The
next morning, defense counsel moved for a mistrial based on the purportedly incurable
prejudice caused by Detective McCoy's statement. Defense counsel renewed the motion
after the close of Detective McCoy's testimony
The trial court denied the mistrial motion, explaining that any prejudice could be
cured by an admonition and also stating Detective McCoy's subsequent testimony had
lessened the prejudice. Specifically, Detective McCoy's subsequent testimony made it
clear that although Weese eventually terminated the police interview and invoked his
15 right to counsel, Weese first participated in a 15-minute conversation with Detective
McCoy, during which he denied any involvement in the assault on Deborah.
To address any prejudice from Detective McCoy's reference to Weese's invocation
of his right to counsel, the trial court gave the following admonition as part of the jury
instructions at the close of the evidence: "During trial Detective McCoy testified that
Mr. Weese requested an attorney at some point during his interview. Mr. Weese had the
absolute right not to discuss the accusations against him, even though, as you heard,
Mr. Weese did discuss the accusations with Detective McCoy. Having been advised that
he was entitled to have an attorney, Mr. Weese asked for one. The jury is not to consider
for any purpose Mr. Weese's request for an attorney made during his interview with
Detective McCoy, and you're not to discuss it during your deliberations."
Weese argues that Detective McCoy's testimony about Weese's invocation of the
right to counsel violated Weese's constitutional right to due process pursuant to Doyle v.
Ohio (1976) 426 U.S. 610 (Doyle). The Supreme Court in Doyle "held that 'the use for
impeachment purposes of petitioners' silence, at the time of arrest and after receiving
Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.' "
(Greer v. Miller (1987) 483 U.S. 756, 763 (Greer).) Weese contends that the prejudice
caused by Detective McCoy's statement irreparably damaged his right to receive a fair
trial, and that accordingly, the trial court should have granted a mistrial.
"A trial court should grant a motion for mistrial 'only when " 'a party's chances of
receiving a fair trial have been irreparably damaged' " ' [citation], that is, if it is 'apprised
of prejudice that it judges incurable by admonition or instruction.' " (People v. Avila
16 (2006) 38 Cal.4th 491, 573.) " 'Whether a particular incident is incurably prejudicial is
by its nature a speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.' [Citation.] Accordingly, we review a trial
court's ruling on a motion for mistrial for abuse of discretion." (Ibid.)
Here, the question is whether a mistrial was required because of a violation of
Doyle. "Under Doyle . . . , a prosecutor is prohibited from using a defendant's postarrest
silence following Miranda warnings to impeach his testimony at trial. [Citation.] . . .
[Citation.] . . . Doyle also prohibits a prosecutor from using a defendant's silence against
him during direct examination of an interrogating officer, before the defendant testifies in
his own behalf." (People v. Clark (2011) 52 Cal.4th 856, 959, italics added (Clark).)
"The United States Supreme Court . . . explained that a Doyle violation does not occur
unless the prosecutor is permitted to use a defendant's postarrest silence against him at
trial, and an objection and appropriate instruction to the jury ordinarily ensures that the
defendant's silence will not be used for an impermissible purpose." (Ibid., citing Greer,
supra, 483 U.S. at pp. 764-765.)
In this case, there was no violation of Doyle. Because Detective McCoy's
statement was made during defense counsel's cross-examination and never mentioned at
all by the prosecutor, this is not a situation in which Doyle applies. The prosecutor did
not attempt to use Weese's postarrest silence against him. It was defense counsel who
unintentionally elicited the testimony.
Further, the trial court did not permit Detective McCoy's comment on Weese's
postarrest silence to come into evidence, as required for Doyle to apply. Specifically, the
17 trial court was the one who raised the issue with counsel at a break in testimony,
expressly disapproving Detective McCoy's statement. Further, through its admonition
that the jury was "not to consider for any purpose Mr. Weese's request for an attorney
made during his interview with Detective McCoy," the trial court dispelled any
appearance that it was permitting testimony about Weese invoking his right to counsel.
(Greer, supra, 483 U.S. at p. 764 [trial court did not "permit" prosecutor's comment on
the defendant's postarrest silence when the court explicitly sustained an objection, no
further questioning or argument occurred with respect to the defendant's silence, and the
court specifically advised the jury].)
Even were we to conclude that Doyle error exists, any error was harmless beyond
a reasonable doubt. (People v. Thomas (2012) 54 Cal.4th 908, 936 [standard for
assessing prejudice from Doyle error is the harmless beyond a reasonable doubt standard
set forth in the Chapman v. California (1967) 386 U.S. 18].) "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 . . ." (Clark, supra, 52 Cal.4th
at p. 959), but in assessing whether specific testimony was prejudicial, we " ' "will
consider the extent of comments made by the witness" ' " and " ' "whether an inference of
guilt from silence was stressed to the jury" ' " (People v. Hollinquest (2010) 190
Cal.App.4th 1534, 1559).
Here, because the jury heard extensive testimony from Detective McCoy that
Weese did speak with him and did deny any involvement in Deborah's assault, and
because there was only an isolated mention at trial of Weese's eventual decision to invoke
18 his right to counsel, we conclude beyond a reasonable doubt that Detective McCoy's
reference to the fact that Weese eventually invoked his right to counsel did not contribute
to the jury's verdict against Weese.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
MCDONALD, Acting P. J.
MCINTYRE, J.