People v. Vargas

• Decision Date: 16 May 1973
• Docket Number: Cr. 16541
• Citation: 108 Cal.Rptr. 15,509 P.2d 959,9 Cal.3d 470
• Court: California Supreme Court
• Parties: , 509 P.2d 959 The PEOPLE, Plaintiff and Respondent, v. Pedro Ortiz VARGAS, Defendant and Appellant.

Page 15

108 Cal.Rptr. 15

9 Cal.3d 470, 509 P.2d 959

The PEOPLE, Plaintiff and Respondent, v. Pedro Ortiz VARGAS, Defendant and Appellant.

Cr. 16541.

Supreme Court of California In Bank.

May 16, 1973.

Frank L. Williams, Jr., Public Defender, James R. Goff, David N. Duncan and James J. Barnett, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Derald E. Granberg and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Defendant appeals from a conviction of robbery (Pen.Code, § 211) following trial by jury. He asserts that prejudicial error occurred at trial, namely, two separate violations of the rule which forbids any adverse comment upon the exercise of his right to remain silent at trial. (See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) We have concluded that although Griffin error occurred, that error was harmless beyond all reasonable doubt, in view of the relatively minor nature of the error and the overwhelming evidence of defendant's guilt. Accordingly, we affirm the conviction.

The robbery victim, Mr. Olness, testified that on the day in question (June 29, 1971) he attended the La Paloma restaurant for dinner, carrying with him $147 in cash. Mr. Olness, who was sixty-years-old and suffering from cancer, had difficulty remembering many of the details surrounding the offense but in general he testified as follows: After his meal, Olness pulled out a 'roll' of bills from his pocket and paid his dinner bill. He noticed that his cane was missing, and thereafter two men approached him and told him the cane was at one of their houses. Olness (who confessed that he was a 'fool' to flash his money and then to follow these men outside) walked out of the restaurant with these men. One of them grabbed Olness, who fell to the ground; the other man, whom Olness identified as defendant Vargas, ¹ went through his pockets and took his money. Olness testified that it was dark when the robbery occurred. After the robbery, Olness returned to the restaurant, reported the incident, and then went home. He called the police who, according to Olness, met him back at La Paloma. Four or five days later, Olness returned to La Paloma, where one of the restaurant employees, Trini Rubio Campio, pointed out to him two men (defendant Vargas and his codefendant Medina) whom she believed were the robbers. The police were called in and defendant and Medina were arrested.

Miss Campio also testified for the prosecution. Although she spoke only Spanish, her testimony was translated into English by an interpreter. Miss Campio stated that she is an employee of La Paloma, and that on the day in question she observed Mr. Olness, a regular customer, leave the restaurant after his dinner. Miss Campio also left the restaurant, to return to her apartment. Once outside, a small girl (the four-year-old child of another La Paloma employee) called to her. She saw Mr. Olness with two men in a vacant lot near the restaurant. The two men were defendant 'Pete' Vargas and John Medina. Miss Campio identified defendant and explained that she had been acquainted with him and Medina for two or three months, as customers of La Paloma. In Miss Campio's words, 'John--I knew him less because I had seen him in there three or four times. Pete I saw quite often.' (Italics added.) Miss Campio testified she was 'absolutely positive' that the two men she saw were defendant and Medina.

According to Miss Campio, Mr. Olness was 'Thrown on the ground' when she first observed him, and defendant, who was leaning over him, made a grabbing motion with his hand toward the side of Olness' pants pocket. Miss Campio 'did not know what he (defendant) took, if anything.' She said in a loud voice to defendant and Medina, who were approximately 25 feet away, 'Do not run. You will pay for it. I saw you.' The men said nothing, but walked away from the area.

Neither Mr. Olness nor Miss Campio were positive that the incident occurred on June 29. Moreover, although Mr. Olness recalled that it was dark at the time, Miss Campio believed that it was still light. Miss Campio also thought that she had seen defendant in the restaurant nearly every day during the ten days prior to June 29. A police witness testified, however, that defendant had been in jail on another charge until June 29.

Miss Campio testified that she did not immediately report the incident to the police because she had no phone, and couldn't speak English. According to Miss Campio, a few days after the robbery, Olness returned to La Paloma and, using 'sign language' pointed out defendant Vargas to her, and she replied 'Yes.'

Defendant and codefendant Medina chose not to testify and presented no defense, by way of alibi or otherwise. During his closing arguments to the jury, counsel for Medina apparently ² explained to the jury that the defendants were under no compulsion to testify. Thereafter, during the prosecutor's closing argument, the prosecutor agreed that defendants did not have to take the stand, but he inquired 'Why didn't they have some witnesses to say where they were on the 29th, on the evening of the 29th. They had to be somewhere . . ..' (No claim is made that these remarks constituted error.) Thereupon, a conference in chambers was held and the court cautioned the prosecutor against commenting further 'as to the context of the defendants not taking the stand, why weren't witnesses called as to where they were, what they were doing . . ..'

The prosecutor thereupon completed his closing remarks, including the following: 'And ladies and gentlemen, there is no evidence whatsoever to contradict the fact that Mrs. Rubio (Campio) saw Mr. Vargas and Mr. Medina over Mr. Olness. And there is no denial at all that they were there. The defendants are guilty beyond any reasonable doubt . . ..' (Italics added.)

Thereupon, defense counsel requested a further conference in chambers, during which they contended that the prosecutor's statement constituted 'Griffin' error, justifying a mistrial. The court acknowledged that the question of error was 'awfully close,' but asked defense counsel if an admonishment to the jury would 'satisfy' them. Counsel agreed to withdraw their motion for mistrial 'if the Court makes a strong admonishment and states that type of argument is improper.' Thereafter, the court admonished the jury to 'disregard completely' the prosecutor's statement 'regarding there being a failure to deny the defendants being there.' The court explained that in a criminal case, the burden is on the prosecution, that defendants have a right to rely upon the state of the evidence at the close of the People's case, that they have a constitutional right not to take the stand, and that the jury should not draw any inferences of guilt from defendants' failure to testify.

Immediately thereafter, the court instructed the jury on the law, reading to them various instructions previously submitted by the parties. Among these instructions were CALJIC 2.60 and 2.61, which, according to the record, were requested by one or both of the defendants. ³ These instructions read as follows:

CALJIC 2.60: 'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberations in any way.'

CALJIC 2.61: '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 every essential element of the charge against him, and 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 essential element.' (Italics added.) ⁴

Defendant now contends that the prosecutor's comment upon defendant's failure to 'deny' the robbery, coupled with the suggestion (in CALJIC 2.61) that defendant's failure to testify may, when supported by other evidence of guilt, be considered by the jury, constituted reversible error. We agree that error was committed in this regard, but we find it harmless in view of its limited nature, and the overwhelming evidence against defendant.

1. Prosecutor's misconduct--Under the rule in Griffin v. California, Supra, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, error is committed whenever the prosecutor or the court comments upon defendant's failure to testify. (See People v. Modesto, 66 Cal.2d 695, 710--711, 59 Cal.Rptr. 124, 427 P.2d 788.) However, not every comment upon defendant's failure to present a defense constitutes Griffin error.

It is now well established that although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (Citations.)' (People v. Burns, 270 Cal.App.2d 238, 247, 75 Cal.Rptr. 688, 693; accord, People v. Smith, 22 Cal.App.3d 25, 32--33, 99 Cal.Rptr. 171; People v. Bethea, 18 Cal.App.3d 930, 936, 96 Cal.Rptr. 229; People v. Chandler, 17 Cal.App.3d 798, 805--806, 95 Cal.Rptr. 146; People v. Grant, 268 Cal.App.2d 470, 475, 74 Cal.Rptr. 111.) For example, in Bethea (18 Cal.App.3d p. 936, 96 Cal.Rptr. p. 232), the prosecutor made a closing argument which summarized the evidence against defendant and commented that 'The state of the record is that There has been no explanation given for this (the People's evidence of guilt) . . ..' (Italics added.) The court held that 'There is absolutely no reference to the fact that defendant did not take...