People v. Callegri

• Decision Date: 17 April 1984
• Docket Number: Cr. 12729
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Lee CALLEGRI, Defendant and Appellant.

Page 109

202 Cal.Rptr. 109

154 Cal.App.3d 856

PEOPLE of the State of California, Plaintiff and Respondent, v. Carl Lee CALLEGRI, Defendant and Appellant.

Cr. 12729.

Court of Appeal, Third District, California.

April 17, 1984.

Quin Denvir, State Public Defender, George Bond, Christine Zilius, Mark L. Christiansen, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Roger E. Venturi, Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

FIELDS, Associate Justice. ^*

Defendant was convicted of petty theft with a prior conviction for burglary. (Pen.Code, § 666.) He asserts the prosecutor committed prejudicial error by questioning and commenting on his prearrest silence, and the court erred by denying his motion to stipulate to the prior conviction. We shall affirm.

FACTUAL HISTORY

Michael Kale was employed by Mervyn's department store as a security guard. On the evening of October 28, 1982, he noticed defendant alighting from a light blue sedan parked near the store. Kale's attention was drawn to defendant because he had received a description of defendant from another employee, following a previous incident. Defendant proceeded to the men's department, selected a ski jacket and tried it on. A male and a female joined defendant. He modeled the jacket for them, they conferred, and the couple left the area. Kale observed these activities from a security observation post.

Defendant left the store wearing the jacket without stopping to pay for it. Kale followed him, exhibited his badge, and asked defendant to stop. Defendant fled and was thereafter captured by Kale and three other employees. Defendant was very combative during his apprehension, thrashing, kicking and threatening to kill Kale. During the struggle, the light blue sedan pulled up to the scene. The same male that had spoken to defendant in the store stepped out of the car. Defendant asked for help, but the male responded "I can't take four of them," returned to the car and left. Shortly thereafter the police arrived and took custody of defendant.

Defendant testified on his own behalf. He stated he was indebted to a man named Luis (nicknamed Gangster) in the amount of $1,300 for heroin supplied to defendant. In an effort to collect the debt, Luis shot defendant in the face. A Dr. Popplewell testified that he had treated defendant for a gunshot wound to the face.

Defendant went to Palm Springs after this incident and remained there for three months. He returned to Stockton, where Luis continued to attempt to collect the debt, threatening to hurt defendant. Luis finally informed defendant that he (defendant) would have to steal some items at a shopping mall to repay the debt. Luis was armed with a gun at this time.

Luis first took defendant to Penney's where he unsuccessfully attempted to shoplift a video game. Luis then took defendant to Mervyn's, ordering him to steal a ski jacket. Defendant complied.

On cross-examination, defendant testified he took no steps to protect himself after being shot by Luis. He also testified he had never been chased out of Mervyn's prior to the incident in question. When asked by the prosecutor why he did not tell Kale he had been threatened, defendant responded: "What good would he have did [sic ]? He's no police, Stockton police officer." Over defense counsel's objections, the prosecutor asked whether defendant told anyone he stole the coat because of the threat. He replied negatively.

On rebuttal, Mervyn's security manager Renee Bailey testified that defendant and four other males stole five jackets from Mervyn's prior to the present offense. The men were chased by security guards but never captured. The following day, defendant again entered the store, went to the men's department and put on a jacket. When approached by a clerk, he swore and yelled at her, threw the jacket and left the store when asked to do so. On the night defendant was arrested, upon seeing Bailey, he lunged at her and said "Yeah, you tried to get me before and you couldn't."

I

The question before us is, should the privilege against self-incrimination, within the meaning of article I, section 15 of the California Constitution, ¹ be extended to hold that prearrest silence may not be used against a defendant at trial? We answer no.

In Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the United States Supreme Court struck down former article I, section 13 of the California Constitution, which permitted adverse comment on defendant's failure to testify at trial, because of the Fifth Amendment to the United States Constitution. ²

Subsequent California cases held that commenting on the failure of a defendant to respond to an accusatory statement while in custody violates the rule of Griffin (People v. Cockrell (1965) 63 Cal.2d 659, 669-670, 47 Cal.Rptr. 788, 408 P.2d 116), as does a comment on a defendant's failure to disclose an alibi after being arrested. (People v. Crawford (1967) 253 Cal.App.2d 524, 535-536, 61 Cal.Rptr. 472.)

In Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, the United States Supreme Court held that a prosecutor may not impeach a defendant with his postarrest silence after being given the Miranda ³ warnings, if he gives an exculpatory statement heard for the first time at trial. Such a comment amounts to an impermissible penalty for invoking constitutional rights.

Limitations were placed upon the expansion of this rule. When a person is accused of having committed a crime under circumstances affording him the opportunity to refute it, if he does not do so and there is no indication he is relying upon his Fifth Amendment rights at the time, his silence is admissible as an adoptive admission of guilt. (People v. Preston (1973) 9 Cal.3d 308, 313-314, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Martin (1980) 101 Cal.App.3d 1000, 1007-1009, 162 Cal.Rptr. 133.) Finally, in 1980, the United States Supreme Court addressed directly the issue of use of pre arrest silence to impeach in Jenkins v. Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86. The defendant in Jenkins was accused of murder. At trial, he contended he acted in self-defense. On cross-examination, the prosecutor asked whether he had told anyone the victim attacked him. The defendant stated he had not, nor had he gone to the police to tell his story in the two-week interim between the killing and when he turned himself in. (447 U.S. at p. 233, 100 S.Ct. at p. 2126.)

The trial court permitted this line of questioning and the defendant was eventually found guilty. On appeal, he contended the use of his prearrest silence violated his Fifth Amendment right to silence. The court disagreed. It found that when a defendant takes the stand, the Fifth Amendment is not violated by use of his prearrest silence, nor does such use violate his right to a fair trial under the Fourteenth Amendment. (447 U.S. at pp. 238, 240, 100 S.Ct. at p. 2129, 2130.) Doyle was distinguished on the ground that defendant's failure to speak occurred before he was arrested and given his Miranda warning. (Id., at p. 240, 100 S.Ct. at p. 2130.) " 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.... Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.' ... [p] Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility." (Id., at pp. 237-238, 100 S.Ct. at p. 2128-2129.)

Thus, we arrive at the point defendant urges us to consider--whether article I, section 15 of the California Constitution forbids the use of prearrest silence. The defendant testified on his own behalf, claiming he stole the jacket only because he was threatened by Luis. The following colloquy took place on cross-examination:

"Q. You didn't think to stop and tell the security officer that you were stealing this coat because somebody had threatened to kill you?

"A. No, I didn't. What good would he have did? He's no police, Stockton police officer.

"Q. Did you talk to the police that night?

"A. Yes, I did.

"Q. Did you tell anybody--

"A. I offered--

"Q. Let me finish the question.

"Did you tell anybody that you stole that coat because somebody was threatening to kill you?

"[PUBLIC DEFENDER]: Objection, Your Honor.

"THE COURT: The objection is overruled....

"...

"[DEPUTY DISTRICT ATTORNEY]: Q. Mr. Callegri, listen to the question, okay?

"Did you tell anybody, yes or no, did you tell anybody that the reason you stole that jacket was because somebody was threatening to kill you?

"A. No, I didn't, sir. I was going to tell Officer Moffitt what had happened, but he, like waved me off when I was going to tell Sergeant Moffitt what had happened."

Defendant, by answering that he did not tell the security officer his reasons prior to committing the theft, opened the door to legitimate cross-examination by replying it would do no good because he was not a Stockton police officer. To bar the next logical question would be to allow defendant to hide behind false inferences raised voluntarily by his answer and to avoid the truth-finding function of the criminal trial.

In People v. Free (1982) 131 Cal.App.3d 155, 182 Cal.Rptr. 259, the defendant was tried for murder after shooting a man in a barroom brawl. The defendant fled the scene, remaining at large for more than a month before being captured. At trial, he claimed he shot in self-defense. On cross-examination, the prosecutor asked whether he had gone to the...