People v. Sanchez
Decision Date | 19 August 2014 |
Docket Number | E057059 |
Citation | 176 Cal.Rptr.3d 517,228 Cal.App.4th 1517 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Respondent, v. Jose Cesar SANCHEZ, Defendant and Appellant. |
OPINION TEXT STARTS HERE
See 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 760.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed. (Super.Ct.No. FWV1200490)
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Jose Cesar Sanchez of grand theft of copper wire. (Pen.Code, § 487, subd. (a).) He was sentenced to three years in county jail. On appeal, defendant contends that four statements made by the prosecutor during closing argument deprived him of his constitutional rights to due process and a fair trial in two respects. First, the prosecutor committed Griffin 1 error by implicating defendant's failure to testify. Second, the prosecutor made inflammatory statements about defendant and the jurors. We hold that one comment constituted Griffin error and another amounted to prosecutorial misconduct. We conclude, however, that the errors, individually and cumulatively, are harmless. We therefore affirm the judgment.
Around 3:00 a.m. on February 28, 2012, two Southern California Edison (SCE) employees drove to an SCE service center. The center, or yard, is surrounded by a brick wall topped with barbed wire; entry requires an electronic key card. As they pulled into the yard, one of the employees saw a person underneath a truck. The employee called the police.
Police officers arrived and found defendant in the wheel well of a truck. An officer ordered defendant to come out. When defendant did not comply, the officer tased him, pulled him out, and arrested him. Inside the wheel well there were rolls of tape and a walkie-talkie.
The police officers found a large extension ladder propped up against the north wall of the distribution yard. A backpack containing pliers and miscellaneous hand tools was found near the truck. Spools of SCE's wire were on the ground, along with wire cutters; a milk crate holding drills and an impact wrench was found in the middle of the yard. According to one of the SCE employees, the location of the ladder and the items found on the ground was unusual and would violate SCE's rules.
Police officers located a GMC Yukon at a restaurant parking lot about a block away from the SCE yard. The vehicle had been last registered in defendant's name in 2010. Jasmine Rodriguez was in the driver's seat. Rodriguez consented to a search of the vehicle. The search turned up a notebook with the word “Cash” written on it and containing addresses of several SCE yards, including the yard in which defendant was found. A walkie-talkie found in the vehicle connected directly to the walkie-talkie found inside the SCE truck wheel well. Inside the Yukon there were also several tools, black tape, a dolly, and a ceramic insulator of the kind used on power poles.
A surveillance videotape of the SCE distribution yard revealed two figures climbing in and out of SCE trucks and taking items off the trucks during the two hours preceding defendant's apprehension. The videotape also showed a person walking toward the south end of the yard—the same area in which defendant was found—at 3:03 a.m. Less than two minutes later, the two SCE employees who found defendant pulled into the yard.
The copper wire found lying on the ground was about 3,125 feet long. The total value of the wire was $4,185. If the wire was deemed scrap, it would be worth $1,366.
At trial, defendant did not testify and did not present any defense witnesses.
At the conclusion of rebuttal argument, the prosecutor stated: (Italics added.) At this point, defense counsel objected to these statements as Griffin error. The court took the matter under submission.
The prosecutor continued: (Italics added.)
Defense counsel objected to these statements as “[i]mproper.” In the presence of the jury, the court instructed the prosecution “not [to] influence the jurors by calling them names, basically, naïve or gullible if they did something you don't like.”
The prosecutor concluded his argument by stating: (Italics added) Defense counsel did not object to this statement. Despite the lack of objection, the court addressed some of these statements outside the presence of the jury.
Although the court had been “vigilantly listening,” it “did not see or hear any Griffin error.” However, the court reminded the prosecutor that he is held to “high, high ethical standards,” and told the prosecutor there were a couple of times when he “got very close to the line.” In particular, the court pointed to the prosecutor's statement that defendant is: The prosecutor was reminded to
We evaluate claims of Griffin error by inquiring whether there is “a reasonable likelihood that any of the [prosecutor's] comments could have been understood, within its context, to refer to defendant's failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 663, 7 Cal.Rptr.2d 564, 828 P.2d 705.) The standard for evaluating claims of prosecutorial misconduct is well established and summarized as follows: (People v. Morales (2001) 25 Cal.4th 34, 44, 104 Cal.Rptr.2d 582, 18 P.3d 11, italics added.)
Defendant argues the prosecutor implicated defendant's failure to testify by arguing that if the defense had a plausible, reasonable explanation for defendant's presence in the SCE yard, it would have given one, and it had not. Defendant further argues that the prosecutor compounded the Griffin error by telling the jurors that defendant was “still in that wheel well in a very real sense, ... hiding from all of you,” and that the jury should “[p]ull him out of that wheel well one last time.”
1. Applicable Law
In Griffin, the United States Supreme Court held that “the Fifth Amendment ... forbids ... comment by the prosecution on the accused's silence....” (Griffin, supra, 380 U.S. at p. 615, 85 S.Ct. 1229, fn. omitted.) The Griffin rule has been extended to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant's failure to testify. (People v. Medina (1995) 11 Cal.4th 694, 755, 47 Cal.Rptr.2d 165, 906 P.2d 2; see U.S. v. Robinson (1988) 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 [ ].) However, this rule does not preclude a prosecutor's comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Hovey (1988) 44 Cal.3d 543, 572, 244 Cal.Rptr. 121, 749 P.2d 776.)
As both parties acknowledge, a prosecutor may...
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