Tag Archives: Right to remain silent

Appellate Principles, Effective assistance of counsel, Evidence, Fifth Amendment, Sentencing

Case 000517

Posted on by Gary McCurdy

Error and/or relief

It was error to include in the restitution order reimbursement for expenses incurred by the victim that were not caused by the defendant’s criminal conduct.

First Holding:

The defendant concedes he forfeited his Fifth Amendment claim by failing to object during trial on this ground to the admission of the pretext call evidence, the prosecutor’s arguments and questions on his silence, and the adoptive admission jury instruction. We elect to address the issue in order to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to jury instruction forfeits appellate claim of error]

People v. Adanadus (2007) 157 Cal.App.4th 496, 512 [requiring timely objection to preserve prosecutorial misconduct claim]

People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [claim based on privilege against self-incrimination may be forfeited]

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Second Holding:

The police arranged a pretext call between the victim and the defendant, during which the defendant did not deny the victim’s accusations. That evidence was presented at trial as an adoptive admission. The defendant argued that it was a violation of his rights under the Fifth Amendment, because he had previously been advised by counsel to make no statements to the victim. The People’s emphasis on the presence or absence of government coercion fails to account for the rationale underlying adoptive admissions, which is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.

That inference is only justified where the person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.

But advice of counsel is one form of restraint that might bar a free response by a person accused of a crime and therefore may not give rise to an inference of acquiescence or guilty consciousness as an adoptive admission. An accused’s express invocation of the right to remain silent on the advice of counsel is precisely a circumstance that may lend itself to the inference that the accused’s silence in the face of accusations stems merely from the assertion of that right.

[Gary note on the rest of the story–the appellate court proceeded to conclude that under the actual facts of the case, it was not error to allow the evidence as an adoptive admission.  I have included this holding merely for its educational value, though it did not assist this defendant.]

Authority:

People v. Simmons (1946) 28 Cal.2d 699, 712, 715–716

People v. Riel (2000) 22 Cal.4th 1153, 1189

Third Holding:

A victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. The trial court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. The hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution, and no particular kind of proof evidence is required.

Authority:

PEN 1202.4

People v. Baker (2005) 126 Cal.App.4th 463, 470

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The restitution power conferred by section 1202.4 in cases where a criminal defendant is sentenced to prison is not as broad as the court’s power to order restitution as a condition of probation, which need only be reasonably related to the crime of which the defendant was convicted or to future criminality. The victim’s mother’s expense incurred for paying for the defendant’s trip to a foreign country was entirely unrelated to the defendant’s criminal conduct, as was the victim’s rideshare share expenses on the day of the crime. Those portions of the restitution order must be stricken.

Authority:

People v. Martinez (2017) 2 Cal.5th 1093, 1101

Fifth Amendment, Standard of review

Case 000071

Posted on by Gary McCurdy

Error and/or relief

The trial court should have granted the defendant’s motion to suppress his interrogation statements because he invoked his right to counsel under Miranda. His statements were involuntary and coerced. We conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial.

First Holding:

A custodial interrogation can come in various forms and does not require questions. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Second Holding:

Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect.

Authority:

Pennsylvania v. Muniz (1990) 496 U.S. 582, 601

United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975

E

Third Holding:

When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation.

Authority:

United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147

Fourth Holding:

Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them.

Authority:

Edwards v. Arizona (1981) 451 U.S. 477, 484–485

People v. Johnson (2022) 12 Cal.5th 544, 580

Michigan v. Harvey (1990) 494 U.S. 344, 350

People v. Henderson (2020) 9 Cal.5th 1013, 1022

People v. Avalos (2022) 85 Cal.App.5th 926, 932

Fifth Holding:

The error requires reversal unless it is harmless beyond a reasonable doubt.

Authority:

People v. Elizalde (2015) 61 Cal.4th 523

Chapman v. California (1967) 386 U.S. 18

Sixth Holding:

We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.

Authority:

People v. Johnson (2022) 12 Cal.5th 544, 578

People v. Henderson (2020) 9 Cal.5th 1013, 1023

People v. Suarez (2020) 10 Cal.5th 116, 158

Duty of the court, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000037

Posted on by Gary McCurdy

Error and/or relief

The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.

First Holding:

A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Second Holding:

The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one.

Authority:

People v. Hardy (2018) 5 Cal.5th 56, 98

Third Holding:

In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 161 [disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260]

Fourth Holding:

Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Fifth Holding:

Doubts about whether an instruction is warranted should be resolved in favor of the accused.

Authority:

People v. Tufunga (1999) 21 Cal.4th 935, 944

Sixth Holding:

Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record.

Authority:

Reid v. Google (2010) 50 Cal.4th 512, 524, 532

Seventh Holding:

[Gary’s short description of an extensive discussion in the opinion:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s post-arrest exercise of his right to remain silent. Under Doyle, in essence, the prosecution may not comment on the defendant’s exercise of his right to remain silent. Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel.

Authority:

Griffin v. California (1965) 380 U.S. 609

Doyle v. Ohio (1976) 426 U.S. 610

People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings]

People v. Fabert (1982) 127 Cal.App.3d 604, 609

People v. Bryant Smith and Wheeler (2014) 60 Cal.4th 335, 387

Eighth Holding:

The prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. Griffin/Doyle error requires reversal unless the court can conclude it was harmless beyond a reasonable doubt. The appellate court must determine, absent the prosecutor’s reference to defendant’s failure to testify, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Hardy (1992) 2 Cal.4th 86, 153–154

United States v. Hasting (1983) 461 U.S. 499, 507–509

Ninth Holding:

Indirect, 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. But the error is prejudicial if the evidence against defendant is less than overwhelming and the improper comment touched a live nerve in the appellant’s defense. It is prejudicial if it served to fill an evidentiary gap in the prosecution’s case. The appellate court must determine whether the comment actually or implicitly invited the jury to infer guilt from silence.

Authority:

People v. Hovey (1988) 44 Cal.3d 543, 572

People v. Galloway (1979) 100 Cal.App.3d 551, 560

People v. Medina (1974) 41 Cal.App.3d 438, 463

People v. Hardy (1992) 2 Cal.4th 86, 159

Tenth Holding:

The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction.

Authority:

People v. Galloway (1979) 100 Cal.App.3d 551, 560

Eleventh Holding:

Griffin prohibits the prosecution from so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Guzman (2000) 80 Cal.App.4th 1282, 1287

People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present]