IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 15, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
HUGO RAMIRO RAMIREZ, DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge. (Super.Ct.No. RIF144917)
The opinion of the court was delivered by: McKinster J.
P. v. Ramirez
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Hugo Ramiro Ramirez appeals his conviction on one count of possession of heroin in a penal institution. (Pen. Code, § 4573.6.)*fn1 He contends that his conviction must be reversed because the prosecutor committed Griffin error--making reference to defendant's failure to testify. (Griffin v. California (1965) 380 U.S. 609, 614-615.) Under the circumstances of this case, we find the error harmless beyond a reasonable doubt, and we affirm the judgment.
Defendant was charged with one count of possession of a controlled substance, heroin, in a penal institution (§ 4573.6; count 1) and one count of possession of drug paraphernalia, a syringe, in a penal institution (§ 4573.8; count 2). The information alleged three strike priors (§§ 667, subds. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)) and three prior prison terms (§ 667.5, subd. (b)).
A jury convicted defendant on count 1 but deadlocked on count 2. The court declared a mistrial as to count 2, and later dismissed it in the interest of justice on motion of the prosecution.
Defendant admitted his prior strikes and prison terms. The court denied his motion to strike the prior strike convictions and sentenced him to a term of 28 years to life.
Defendant filed a timely notice of appeal.
Defendant was an inmate at the California Rehabilitation Center (CRC) in Norco. On the morning of January 4, 2008, during a random search of inmates, Officer Comer called defendant over and asked if he had anything on his person. Defendant replied that he did not. Comer did a pat-down search and discovered a red marker in defendant's pants pocket. He handed the marker to Officer Diamond. Diamond noticed that the cap was not in place over the tip, but was rather attached to the other end of the marker. When he removed the cap, he discovered a commercial grade syringe inside the marker.
Defendant was taken to the medical facility to determine whether he was under the influence of any contraband substance. At the facility, Officer Vega conducted another search of defendant's person. As he removed defendant's left sock, a bindle of heroin fell out. When he removed defendant's right sock, a cellophane packet fell out. The packet contained eight bindles of heroin. The heroin found on defendant weighed a total of 1.31 grams, including the packaging. This is a usable quantity.
While defendant was at the medical facility, Officers Comer and Diamond searched defendant's sleeping area and his locker. Comer unlocked defendant's locker. The officers discovered a coffee mug with a plastic lid inside. Under the lid, they found a bindle containing .10 grams of heroin.
Defendant did not testify. His attorney attempted to raise a reasonable doubt that defendant had knowledge of the presence of the heroin by questioning prosecution witnesses as to the possibility that defendant was set up by the Mexican Mafia, which controlled the drug traffic at CRC at that time. In closing argument, he also challenged the sufficiency of the evidence that defendant possessed a useable quantity of heroin because the criminalist tested the contents of only one of the bindles and could not say whether it was recovered from defendant's socks or from his locker.
THE GRIFFIN VIOLATION WAS HARMLESS BEYOND A REASONABLE DOUBT
In Griffin v. California, supra, 380 U.S. 609 (Griffin), the United States Supreme Court declared that the Fifth Amendment to the United States Constitution prohibits the prosecutor from commenting, directly or indirectly, on the defendant's failure to testify on his own behalf. (Griffin, at p. 615.) Griffin error is reversible unless the reviewing court can say beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24.)
Here, the comment defendant cites as Griffin error occurred during voir dire. The issue arose as follows. During his questioning of the potential jurors, defense counsel explained that the entire burden of proof lay with the prosecution and that neither the defendant nor defense counsel had any burden to disprove the charges or to refute the prosecution's evidence. He questioned several potential jurors to determine their understanding of these concepts. He also asked several potential jurors whether, if they were accused of a crime they did not commit, they would testify to proclaim their innocence. The jurors responded that they would do so. He then asked several potential jurors if they would hold it against defendant if he did not testify, and acknowledged that even he would wonder why a defendant did not choose to testify to deny the charges. He then gave the potential jurors the following hypothetical:
"Let's say that . . . although you're innocent, you have a problem speaking in public and maybe you'll stutter. Maybe you'll sweat. Maybe you'll stumble over your words. [¶] And let's say that the person that is asking you the questions is a skilled, trained attorney and you know that when you answer questions . . . you're going to get nervous. You're going to sweat, your voice is going to shake. You might look guilty because of that. . . . [¶] Okay. . . . Let's say that you know you're innocent but that the environment where this took place, someone has set you up. You know someone has set you up. You know you can tell who set you up . . . but you also know that because of whatever environment this is, that this took place in, these are serious people. [¶] And you can testify, but you're not quite sure that if you testify if somebody is going to be hurt, if the people that you testify against can reach out from that environment . . . and hurt your family members. And you can't protect them. You can't say anything, because . . . testifying, exercising that right to say 'I didn't do it' might cause a family member to be killed." He then asked a potential juror if she would still testify at the risk of a family member being killed. The potential juror replied that she would. Defense counsel then said, "There are lots of reasons that no matter how much we want to protest our innocence and protect [sic] the fact that we didn't do it, there are lots of reasons why people don't testify."
Defense counsel went on to discuss the fact that the charged offense took place in prison. He talked about the possibility of a person being set up and that in a dangerous environment, "the stakes are higher." He then reiterated that the defense has no burden of proof.
In his subsequent voir dire, the prosecutor said, "Now . . . I want to make 100 percent crystal clear . . . that I am not talking about the facts of this case. . . . I'm not talking about this case. The defense counsel got up here and gave you a bunch of reasons why a person might not be set up. [Sic.] He might sweat, he might stutter. [¶] How about this: Can you see that there are other reasons why that a [sic] person might not testify? And I would normally never talk about this, because the rule is you can't consider it, right? [¶] . . . [¶] [Y]ou understand that if the defendant doesn't testify, you can't consider it? [¶] . . . [¶] But [defense counsel] sort of gave you the scenario, well, what about if he's sweaty, nervous, or had a hit out on him? Do you remember that? [¶] What about if the guy is guilty and he thinks he won't be able to lie very well on the stand?" (Italics added.)
Defense counsel immediately objected. After the court stated that it would admonish the jury and read the relevant instruction and ordered the prosecutor not to mention the subject again, defense counsel moved for a new jury. The court denied the motion and denied any potential motion for mistrial. After a break, defense counsel again asked for a new panel, saying that he was not sure that an instruction to the jury would be adequate to cure the harm. The court again denied the motion.
In open court, the court sustained the objection and read the jury CALCRIM No. 355.*fn2 It asked the potential jurors if anyone had any problems with that law. One potential juror (who was later dismissed for cause) stated that she did have a problem with it.
Defendant did not testify, and before the case was submitted to the jury, the court read the instruction again. The prosecution made no reference in his closing arguments to defendant's failure to testify.
As the Attorney General points out, "'brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 419-420.) Here, however, although the prosecutor did not argue that it was an inference that jurors were permitted to draw or that they should draw such an inference, there is no question that a reasonable juror would understand his comment to mean that one possible inference from a defendant's failure to testify is that the defendant is guilty and does not feel that he can lie convincingly.
Nevertheless, we conclude that the error was harmless. First,
although defense counsel did not explicitly state that silence does
not equal guilt, that was clearly the thought underlying his emphasis
on legitimate reasons which might lead an innocent person to decline
to testify. It is unquestionable that any jurors who had not
previously thought about whether silence permits an inference of guilt
would have done so based on defense counsel's voir dire alone.*fn3
Second, the attorneys and the court repeatedly
emphasized to jurors that they could not allow defendant's decision
not to testify, if indeed he did not testify, to affect their
deliberations. Third, we must presume that the jury understood and
followed the court's instructions, in the absence of any showing to
the contrary on the record. (People v. Burch (2007) 148 Cal.App.4th
862, 869.) The fact that either three or nine jurors found defendant
not guilty on count 2*fn4 strongly suggests that the jury
did follow the court's instructions and that the Griffin violation did
not contribute to the guilty verdict on count 1. (Defendant contends
that the opposite is true, that the dichotomy between the guilty
verdict on count 1 and the deadlock on count 2 demonstrates that the
jury was influenced to find defendant guilty on count 1 by the Griffin
violation. We are not persuaded.)
The California Supreme Court found Griffin error harmless under similar circumstances in People v. Fierro (1991) 1 Cal.4th 173. In that case, during voir dire, defense counsel emphasized that the defendant's silence could not be used against him. Defense counsel observed that "there might be plausible reasons why defendant, although innocent, would choose not to take the witness stand." (Id. at p. 208.) Later, the prosecutor also stated that the defendant had a right to remain silent and explained, "'[Y]ou can't hold that against the defendant. You can't consider that.'" (Ibid.) Next, however, "Recalling defense counsel's remark as to why an innocent person might not testify, the prosecutor further observed that 'there might be reasons why a guilty man doesn't want to take the stand also and testify.' [H]e then repeated his admonishment not to 'even think about this . . . . It would be totally inappropriate for you to think about . . . this and try to guess about why somebody does [not testify].'" (Ibid.)
In response to the defendant's argument that the prosecutor's remark prejudicially urged the jury to consider the defendant's silence as evidence of his guilt, the court held that any error was harmless: "While it may have been ill-considered to state that a guilty person may have reasons not to testify just as an innocent person might, we do not believe the prosecutor's statement could reasonably have been construed as urging the jury to consider defendant's silence as evidence of guilt. Indeed, as noted, the prosecutor followed this remark with a further admonition not to consider the matter." (People v. Fierro, supra, 1 Cal.4th at pp. 208-209.) (In addition, the trial court had previously admonished the jurors on the burden of proof and the defendant's right not to testify. See id. at p. 208.) Accordingly, the court held, "[W]e discern no possibility that the statement subjected defendant to prejudice. [Citation.]" (Id. at p. 209.) Likewise, in this case, we are persuaded beyond a reasonable doubt that the prosecutor's remark was harmless.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: /s/ Ramirez P.J. /s/ Hollenhorst J.