COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 20, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
THOMAS JOHN COLLINS, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed. (Super. Ct. No. SCD218403)
The opinion of the court was delivered by: McDONALD, J.
P. v. Collins
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted Thomas Collins of one count of petty theft (Pen. Code, § 484),*fn1 and Collins admitted the special allegation that he had a prior theft conviction within the meaning of section 666. He also admitted he had two "prison priors" within the meaning of sections 667.5, subdivision (b), and 668. The court sentenced Collins to two years in prison. On appeal Collins argues the prosecutor committed "Griffin"*fn2 error and the error was prejudicial.
On January 23, 2009, Mr. Brown and Mr. Laramie, employed by a Target store as loss prevention employees, were at work and observed Collins pushing a shopping cart inside the store. Collins's jacket was draped over the cart, and a flashlight (in its packaging) was on the jacket. They saw him enter the electronics department, where he picked up an MP3 player and a wireless router, placing both on his jacket with the flashlight.
Collins wheeled his cart to the counter of the electronics department, where he asked a sales representative some questions. When Collins finished, he left the counter, returned the router to the shelves, and pushed his cart away from the electronics department into a quieter part of the store where there was less foot traffic. Once there, he looked around and hid the flashlight and MP3player under his jacket.
Collins then pushed the cart around the store before he proceeded with the cart to a drinking fountain near the front of the store, where he brushed his teeth. He then pushed the cart toward the doors, but instead of leaving through one of the two exit doors, he tried to leave through an entrance door. When Collins got past the first set of entrance doors, the loss prevention employees apprehended him. The employees called the police.
Police arrived and arrested and searched Collins. They determined he was not carrying any money, checks, credit cards or driver's license with him.
Collins asserts the prosecutor committed Griffin error by "indirectly" commenting on his failure to testify.
A. Applicable Standards
The Fifth Amendment privilege against self incrimination forbids "comment by the prosecution on the accused's silence." (Griffin v. California, supra, 380 U.S. at p. 615.) "A prosecutor may not directly or indirectly comment on a defendant's failure to testify in his or her own defense." (People v. Mincey (1992) 2 Cal.4th 408, 446.) Griffin error occurs "whenever the prosecutor . . . comments upon defendant's failure to testify. [Citation.] However, not every comment upon defendant's failure to present a defense constitutes Griffin error." (People v. Vargas (1973) 9 Cal.3d 470, 475.)
"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." (People v. Szeto (1981) 29 Cal.3d 20, 34.) Griffin does not preclude fair and vigorous commentary on the evidence. (People v. Mincey, supra, 2 Cal.4th at p. 446; People v. Wilson (2005) 36 Cal.4th 309, 337 [" '[p]rosecutors have wide latitude to discuss and draw inferences from the evidence at trial' "].) " ' " '[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.) On appeal, we review prosecutorial remarks de novo to determine whether there is a reasonable likelihood that the jurors understood the remark to refer to the defendant's failure to testify. (People v. Roybal (1998) 19 Cal.4th 481, 514.)
B. The Closing Arguments
During the defense's closing argument, the defense argued the prosecution had not proved its case beyond a reasonable doubt because there were minor inconsistencies between the descriptions of events given by the two Target loss prevention employees at trial. For example, the defense argued the prosecutor was urging the jury to "believe Mr. Brown's version [that Collins] was looking around suspiciously" despite Mr. Laramie's statements that "nothing unusual [was] going on." The defense also argued there were discrepancies between Brown's and Laramie's descriptions of when Collins first concealed the stolen items under his jacket. After posing the rhetorical question of "where did the concealment occur?" the defense argued:
"You can't answer that because the versions are completely inconsistent. So the prosecution's simple case, the first aspect, they have presented different versions [of] how it was concealed. . . . [¶] You can't answer [how the merchandise was concealed] because the only evidence that was presented was inconsistent evidence. The prosecution cannot even give you a version. They say 'concealment,' but they can't give you the version, they simply rely on the fact and say it's inconsistent and that it must be truthful. . . ."
In rebuttal, the prosecutor dismissed the defense's references to collateral matters as an attempt to confuse the issues and urged the jury to focus on the evidence. The prosecutor, arguing the jury should reject the defense argument that there were plausible interpretations of the evidence consistent with innocence, stated the "[d]efense attorney referred to the People's version of the case. Well, you know what, ladies and gentlemen, it's not a version, it's the only version. It's the truth. It's what happened. [Collins] walked into a store, he selected these items, and at some point he hid them[,] walked past 20 registers, and he left without paying. Stolen."
Collins argues the prosecutor, by stating the prosecution's interpretation of the evidence was "not a version, it's the only version," was indirectly commenting on Collins's failure to testify, in violation of Griffin. Defense counsel, seeking to denigrate the persuasiveness of the prosecution's portrayal of the facts, repeatedly used the noun "version" to suggest there was reasonable doubt because there were alternative versions consistent with innocence. The prosecutor, responding to this effort by defense counsel, seized on defense counsel's terminology by pointing out that the prosecution's portrayal of the facts was not a mere version but was instead the only version precisely because "it's the truth[,] [i]t's what happened." Under these circumstances we do not believe there is a reasonable likelihood that the jurors understood the remark to refer to the defendant's failure to testify. (People v. Roybal, supra, 19 Cal.4th at p. 514.)
Moreover, as the trial court noted in rejecting the defense counsel's objection under Griffin, the defense's opening statement apparently discussed the issue of Collins's intent and indicated there would be evidence undermining the prosecution's portrayal of Collins's intent to steal.*fn3 However, as the trial court also noted, the defense rested without calling any witnesses, and "[t]here was no evidence offered by the defense after the defense indicated that the evidence would show these things." Under these circumstances, Griffin does not bar the prosecutor from pointing out that an argument seeking acquittal was unsupported by any evidence from the defense. (People v. Fierro (1991) 1 Cal.4th 173, 213.)
Under the circumstances of this case, the prosecutor's statement did not constitute Griffin error.
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. HALLER, J.