People v. Redmond

Decision Date14 September 1981
Docket NumberCr. 21841
Citation176 Cal.Rptr. 780,29 Cal.3d 904,633 P.2d 976
Parties, 633 P.2d 976 The PEOPLE, Plaintiff and Respondent, v. Robert Stewart REDMOND, Defendant and Appellant.
CourtCalifornia Supreme Court

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Wendy Shane, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., John T. Murphy, Eugene W. Kaster, Charles R. B. Kirk and Stan M. Helfman, Deputy Attys. Gen., for plaintiff and respondent.

RICHARDSON, Justice.

Defendant appeals from his conviction of assault with a deadly weapon (Pen.Code, § 245, subd. (a)). He was sentenced to four years in prison and asserts that his Fourth and Fifth Amendment rights were violated and that multiple procedural errors occurred during his trial. We find no reversible error and will sustain his conviction.

The offense in question involved a stabbing incident that occurred in Berkeley shortly after 3 a. m. on May 1, 1978. Defendant and an acquaintance, Shubert, had indulged in an extended and heavy drinking bout during which beer, wine and whiskey were consumed in the garage adjacent to defendant's mother's residence. At some point Shubert was cut below the left lower rib in a downward direction toward the abdomen and defendant does not deny that he held the knife when it entered the victim's body. The People charge that the blow was intentional while defendant insists that it was accidental. Shubert's version was that for no disclosed reason, and while in the garage, defendant stabbed him; he left the garage and was accompanied by defendant to the kitchen of the mother's nearby residence; he then walked three-quarters of a block to a pay telephone and reported the incident. Defendant said that the stabbing occurred in the kitchen when Shubert stumbled against him and defendant, acting reflexively, raised his hand and the knife which he had been holding "went up" into the victim; in order to obtain his car keys preparatory to taking the victim to the hospital, defendant went into his bedroom and deposited his knife, and during that time Shubert left and defendant was unable to locate him.

When police were summoned to the scene, defendant told him mother not to let them search the residence without a warrant. However, she voluntarily permitted the officers entry and gave them the key to the garage. An inspection of the garage revealed blood on the floor and on a counter.

We consider, sequentially, the two assertions of constitutional error and certain claims of evidentiary flaws in defendant's trial.

THE FOURTH AMENDMENT

When the officers came to his mother's residence, defendant urged her not to permit the police entry and search without a warrant. during his closing argument, the prosecutor several times suggested that defendant's warning to his mother evidenced a consciousness of guilt. The trial court refused a defense request to instruct the jury that: "It is the constitutional right of every citizen to voice objection to the warrantless search of his or her residence and you must not draw any inference of guilt from the fact the defendant objected to the warrantless search of his residence nor should this fact be discussed by you or enter in your deliberations in any way."

Defendant contends that, in combination, the prosecutor's comments and the refusal of the cautionary instruction impermissibly infringed upon the exercise of his Fourth Amendment right to be free from an unreasonable search and seizure.

Initially, we note that it is not clear that defendant in fact had asserted his constitutional right to be free from unreasonable search and seizure. As to the entry and search of the residence generally, it is more accurate to say that defendant was urging his mother to assert her Fourth Amendment right. His interest was vicarious and indirect. Because she owned and occupied the residence her consent to the entry was sufficient. It was for the trial court to determine whose rights were being asserted and its implied finding, adverse to defendant, is supported by substantial evidence.

Moreover, the constitutional claim was waived because defendant did not object to the prosecutor's comments during argument. As we recently observed in People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468, "(T)he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected (citations)...."

We are persuaded by a review of the entire argument that the prosecutor's references to defendant's admonition to his mother were moderate in tone and import. They lacked significance when considered within the context of defendant's admission that he held the weapon in question. Any harm arising therefrom could have been cured by a timely objection and admonition under our Green rationale.

THE FIFTH AMENDMENT

Approximately two months after the stabbing, and while then confined, defendant voluntarily revealed to his counsel that the weapon was in his bedroom. Defendant also disclosed this information to his fellow inmates at the Santa Rita facility. At trial, defense counsel asked defendant's mother to locate the knife and she produced it, testifying on direct examination as to the circumstances of the discovery of the knife. In closing argument the two-month delay was stressed by the prosecution as evidence of guilt. The court instructed the jury in accordance with California Jury Instructions Criminal (CALJIC) No. 2.62 that because defendant had elected to testify, "If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable."

Defendant argues that, together, the prosecutor's argument and the jury's instruction violated his Fifth Amendment right against self-incrimination. (Cf., Griffin v. California (1964) 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-1233, 14 L.Ed.2d 106.) We are unable to agree for several reasons.

Again, defendant did not object at trial to the prosecutor's comments, and under Green it is when an appropriate objection and admonition would not have cured the harm that "the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution." (People v. Green, supra, 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.) "The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.' (Citations.)" (Id., at p. 27, 164 Cal.Rptr. 1, 609 P.2d 468.) We are persuaded that an objection and prompt admonition would have repaired any damage resulting from the brief comments.

When a defendant elects to testify in his own defense a comment on his prior muteness does not necessarily violate his privilege against self-incrimination. (Jenkins v. Anderson (1980) 447 U.S. 231, at pp. 236-238, 100 S.Ct. 2124, at pp. 2128-2129, 65 L.Ed.2d 86; Raffel v. United States (1926) 271 U.S. 494, 496, 499, 46 S.Ct. 566, 567, 568, 70 L.Ed. 1054; People v. Preston (1973) 9 Cal.3d 308, 317, 107 Cal.Rptr. 300, 500 P.2d 300; People v. Perez (1967) 65 Cal.2d 615, 621, 55 Cal.Rptr. 909, 422 P.2d 597.)

Moreover, defendant's conduct with reference to the location of the knife hardly reflects his "silence." The information was revealed to his attorney, mother, and fellow inmates at Santa Rita. Defendant's mother, responding as a defense witness to a question on direct examination, presented at trial for the first time the circumstances of the discovery of the knife. The defense having raised the issue, presumably to negate consciousness of guilt, the evidentiary door was thereby opened and the People were entitled by reasonable cross-examination to develop the circumstances more fully and to argue reasonable inferences therefrom.

Similarly, we find no merit in defendant's contention that because at trial he was not asked to explain or deny the adverse evidence against him, the CALJIC 2.62 instruction was improper and violated both his federal and state constitutional privileges against self incrimination. The scope of his direct examination was a tactical trial choice of his counsel. The record contained evidentiary support for the instruction including defendant's delay for two months in disclosing the location of the knife, his failure to summon an ambulance or assist or transport Shubert for medical assistance, and the variance between the description of Shubert's wound as "downward and inward" and defendant's version of an "upward" thrust caused by Shubert's fall on the knife. These matters, in our view, were the proper subject of discussion by the prosecutor during his closing argument.

We have said that when a defendant testifies in his own behalf he thereby waives his self-incrimination privilege under both federal and state Constitutions as to matters within the scope of permissible cross-examination (People v. Perez, supra, 65 Cal.2d at pp. 620-622, 55 Cal.Rptr. 909, 422 P.2d 597; People v. Ing (1967) 65 Cal.2d 603, 610-611, 55 Cal.Rptr. 902, 422 P.2d 590) and that when he denies commission of the crime a defendant thereby renders "very wide" the permissible scope of his cross-examination. (Ing, supra, at p. 611, 55 Cal.Rptr 902, 422 P.2d 590.) It is entirely proper for a...

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