Filed 3/10/15 P. v. Mackey CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C073310
Plaintiff and Respondent, (Super. Ct. No. SF121306B)
v.
PARIS MACKEY,
Defendant and Appellant.
A jury found defendant Paris Mackey guilty of two counts of second degree
robbery (Pen. Code,1 § 211) and found that he personally used a firearm (§ 12022.53,
subd. (b)) in the commission of each count. After his new trial motion based on
prosecutorial misconduct and insufficiency of evidence was denied, defendant was
sentenced to prison for an aggregate term of 13 years, which included a consecutive term
of 10 years for the firearm use enhancement.
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
1
On appeal, defendant contends (1) the prosecutor violated his privilege against
self-incrimination and his due process rights during opening summation when he
commented on defendant’s post-arrest/post-Miranda2 silence, and (2) the firearm
enhancement is not supported by substantial evidence.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case-in-Chief
Around noon on August 16, 2012, loss prevention officers Michael Miller and
Damion Wilke were walking around a Save-Mart grocery store together pretending to be
shoppers when they saw three men enter and walk to a coin redemption machine. At
trial, Miller and Wilke identified defendant and codefendant Shaquille Anderson as two
of the men. In his testimony, defendant identified the third man as someone named
Donovan Rhodes.3
Defendant began depositing coins into the redemption machine. As he did so, a
store clerk opened a safe that was located near the trio. Wilke, who was about six feet
away, heard one of the men say, in evident reference to the clerk, “ ‘We should get him.
We should get him.’ ” Miller heard the trio discussing planning on possibly robbing the
store later while the store clerk opened the safe and specifically heard two of the men use
the word “rob” during the conversation. Wilke did not remember defendant saying
anything about robbing the store during this conversation. Miller later told the police that
2 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).
3The reporter’s transcript of defendant’s testimony refers to the third man as Donovan
Rose. The clerk’s and reporter’s transcripts later refer to the man as Donovan Rhodes.
Miller, Wilke, and the prosecutor referred to this man variously as “third male” or some
similar term. We express no opinion about the credibility of defendant’s identification,
but for convenience, we will refer to the third individual as “Rhodes” when discussing
the testimony of Miller and Wilke.
2
defendant said, “ ‘ “We should get this store,” ’ ” and Rhodes said, “ ‘ “No, we’ll get it
the next time.” ’ ”
The head clerk, who had opened a nearby safe just before one of the three said the
words, “ ‘We should get him,’ ” closed the safe and walked away without taking money
from the safe. Wilke described the clerk as appearing “real nervous” when he left the
safe.
Anderson then left defendant and Rhodes at the redemption machine and went to
the restroom. When Anderson returned, all three men walked to the check stand so
defendant could obtain cash for his coins.
Anderson and Rhodes left defendant at the check stand and walked off toward the
general merchandise aisle. Miller and Wilke saw Anderson select a package of socks,
open the package, and hand a pair of socks to Rhodes who put them in his pocket.
Anderson put the other pair of socks from the package into his own pocket. After
concealing the socks, Anderson and Rhodes returned to the check stand where defendant
was and waited with him. After defendant obtained cash for his coins, the three men left
the supermarket together.
Miller and Wilke followed the trio and attempted to stop Anderson and Rhodes
soon after they left the store. They were not trying to stop defendant because they had
not seen him do anything. Miller and Wilke identified themselves verbally and visually
to the men as loss prevention officers and asked them about the socks. When confronted,
all three men began talking in loud, angry voices and denied that they had any socks.
Defendant began walking toward a black, four-door sport utility vehicle (SUV)
and his companions followed. Defendant unlocked the SUV with a remote, sat in the
driver’s seat, and started the vehicle. Anderson jumped into the front passenger seat and
shut the door. Rhodes opened the driver’s side rear door and leaned inside.
According to Wilke, he and Miller were located approximately two to three feet
from the SUV on the driver’s side. Miller said he was on the driver’s side, but said he
3
was further back towards the back of the SUV. Both saw defendant bend over, reach
under the driver seat, and pull out a small black revolver. Miller and Wilke then saw
defendant reach between the driver’s seat and the front passenger seat and hand the gun
to Rhodes, who was at the driver’s side rear door, leaning into the vehicle. Miller saw
that it was a gun as soon as defendant pulled it out from under the seat. Upon seeing
defendant pull out an object from under the seat, Wilke started backing up slowly, and he
started backing up “even more” when he saw that it was a gun and that defendant was
handing it to Rhodes.
After taking the gun from defendant, Rhodes turned and pointed the gun directly at
both loss prevention officers. Wilke testified that Rhodes told them, “ ‘I have the socks.
I don’t give a fuck. You can fuck Save-Mart, fuck all your stuff inside there and call the
fucking cops. We’re not scared.’ ” (Italics added.) Similarly, Miller testified that
Rhodes said they had taken the socks and asked the two loss prevention officers what
they were going to do about it. Miller and Wilke backed away as Rhodes pointed the gun
at them. Rhodes then entered the SUV, and defendant drove the vehicle out of the
parking lot.
After the SUV departed, Miller and Wilke telephoned 911 and reported the
incident. Defendant and Anderson were arrested the next day at defendant’s home.
Defense Case
Defendant testified that around noon on August 16, 2012, he drove a black SUV to
the Save-Mart supermarket accompanied by Anderson and Rhodes. Rhodes had called
defendant earlier requesting a ride to the downtown transit center. Defendant went to the
supermarket to deposit coins in the store’s coin redemption machine. He testified that
while the other two were with him at the coin machine, he did not speak to them and was
unaware of what they were saying because the coin machine was noisy. After the coins
were deposited, defendant and his companions got in line at a check stand. While
4
defendant waited, the companions ventured around the store. After defendant received
his money, all three of them left the supermarket.
As the trio left the supermarket, the loss prevention officers approached them and
asked about some socks. Defendant put up his hands and asked, “ ‘What socks?’ ”
When he realized the officers were not speaking to him, defendant walked to the SUV,
unlocked the door with his remote, sat in the driver’s seat, and started the engine.
Defendant looked in his rearview mirror and saw Rhodes holding a black semi-automatic
handgun in his outstretched hand. Defendant got out of the car, pulled down Rhodes’s
outstretched hand, and told him, “ ‘You’re stupid.’ ”
Defendant and Rhodes reentered the SUV and defendant drove away from the
supermarket. Defendant dropped off Rhodes at the transit center downtown. Defendant
testified that he never pulled a gun from underneath his seat and never handed a gun to
Rhodes.
Defendant testified that he did not “need to steal from” the supermarket because
he “[has] a job” and “had money on [him] that day.”
Throughout his direct examination, defendant referred to Rhodes as the “third
person” or some similar term. It was on cross-examination by the prosecution when
defendant was asked the name of the third person and he identified Rhodes by name. In
response to the final cross-examination questions from the prosecutor, defendant
admitted that when he left the store, he did not call 911 or report to the police what
Rhodes had done.
DISCUSSION
I. Prosecutorial Misconduct
Defendant contends the prosecutor violated his privilege against self-incrimination
and his right to due process when, during his opening summation, he commented on
defendant’s post-arrest/post-Miranda silence to prove his guilt. He argues (1) the
5
prosecutor’s comment on his post-arrest/post-Miranda silence constituted Doyle error,4
and (2) the prosecutor actively misled the jury into believing that defendant had not tried
to speak to police about the third male, even though the prosecutor knew defendant had
tried to do so. Defendant claims the prosecutor’s remarks were prejudicial and require
reversal.
We agree that a portion of the prosecutor’s closing argument was a comment on
defendant’s post-arrest/post-Miranda silence and constituted Doyle error, but conclude
that the comment was harmless beyond a reasonable doubt.
A. Background
In his opening summation, the prosecutor argued: “[Defendant] said [Rhodes is]
responsible for this whole robbery, a guy who’s not here. He would have been a nice
witness to hear from if the defense would have brought him in and had him testify. . . .
[¶] If [defendant is] to be believed, he’s a hero. He stopped this guy that he knew from
high school that he was giving a ride to that he took to this location, he stopped him from
putting Mr. Miller and Mr. Wilke’s life in jeopardy. Is that realistic? Is that believable?
Does that make sense based upon what we just heard? [¶] He didn’t call [911]. He
didn’t report this Mr. [Rhodes]. He tossed out his name here for the first time in a way
that nobody can verify anything about his story.” (Italics added.)
Defendant’s trial counsel objected and asked to approach. The ensuing bench
conference and a chambers session were not reported. Following the chambers session,
the trial court stated that the objection was overruled without elaboration.
In a written new trial motion, defendant argued that the prosecutor’s arguments
“were prejudicial and unfair in two ways. First, the prosecutor directly commented on
the defendant’s right to remain silent. By arguing to the jury that this was the first time
4 Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle).
6
the defendant’s version of events had been told, he was implying to the jury that if the
defendant’s version were true, he would have make [sic] it known at an earlier time.”
Defendant further argued that “[t]he second way this prejudiced the defendant was the
argument misled the jury. The prosecution knew that the defendant on several occasions
attempted to disclose the unknown third person and the circumstances around the
incident. Yet, during closing, it was argued by the prosecution that the identification of
the third person and the sequence of events as told by the defendant were all new
information and being heard for the first time. However, the prosecutor knew while
making that argument that [defendant] had offered months before to disclose that
information [to] him. The prosecutor declined to listen to what [defendant] had to offer.
It is disingenuous to argue to the jury that this is all new information regarding the third
person’s identity.”
In his opposition to the motion, the prosecutor noted that on the day after the
robbery, defendant had been arrested on two unrelated matters. Rather than “invoke his
right to remain silent on the other two cases,” defendant “waived his right to remain silent
and gave an interview to the police.” Defendant “was never interviewed regarding [this]
robbery case.”
The prosecutor also asserted, “The defense argument that his client had attempted
to provide the name of the accomplice Rhodes, misstates the facts and negotiations. The
defense attorney stated his client would provide the name of the third accomplice if he
received probation but wouldn’t ‘snitch’ if he had to go to prison. . . . The defendant
refused the 5 year prison offer and never provided the name.”
At the hearing on the motion, the prosecutor noted that “at the time the defendant
objected, he conceded that [he] had never invoked his right to remain silent on this case.
In fact, he was -- when he was interviewed by the police, it was about his two other cases.
He freely gave a statement. He wasn’t interviewed on this case. I don’t think that the
Doyle line of cases apply.” The prosecutor further argued, “What my argument referred
7
to was the defendant’s testimony, the fact that he claimed he was trying to stop a robbery.
It didn’t make sense in light of the other facts. So the People were commenting on both
his testimony and failure to call logical witnesses, specifically the other individual,
Donovan Rhodes. It has nothing to do with any post-arrest silence in this case, because
there was none.”
B. Forfeiture
“ ‘ “[A] defendant may not complain on appeal of prosecutorial misconduct unless
in a timely fashion—and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.
[Citation.]” ’ [Citation.] Objection may be excused if it would have been futile or an
admonition would not have cured the harm. [Citation.]” (People v. Dykes (2009)
46 Cal.4th 731, 760 (Dykes).) The forfeiture rule applies to Doyle violation claims.
(People v. Tate (2010) 49 Cal.4th 635, 691-692 (Tate).)
The People concede that defense counsel made a timely objection, but they claim
he (1) did not specify the grounds for the objection, and (2) did not request an
admonition. The People’s claim is based on the reporter’s transcript of the objection,
which shows only that an objection was considered in unreported bench and chambers
conferences and then overruled without argument on-the-record by the parties or
elaboration by the trial court. Defense counsel never mentioned the specific grounds for
the objection on-the-record, even at a later time outside the presence of the jury.
However, in the new trial motion, defense counsel recounted what had occurred
during the unreported chambers conference. He asserted that he had objected on the
ground that the prosecutor’s argument was a comment on defendant’s constitutional right
to remain silent. He also said counsel for the codefendant objected during the chambers
conference on the ground that the prosecutor’s argument was disingenuous because
defendant had offered to give the identity of the third person during plea negotiations.
8
However, counsel for defendant never stated he asserted that ground during the chambers
conference or joined in the objection registered by counsel for the codefendant.
During argument on the new trial motion, defendant’s counsel stated: “The court
. . . recalls I made an objection. We went into chambers and discussed some things. I
don’t think we fully put on the record the reason for my objection, but we did have some
discussions in chambers. And the point of my objection was that I believed it was unfair
for the People to essentially argue to the jury that this was the first time the defendant had
come forward with this information. Essentially, what I believe the People were doing at
that point were commenting on his . . . post-arrest silence, Judge, when he was arrested,
not coming forward and informing the officers of his version of the story.” (Italics
added.) The prosecution did not dispute defense counsel’s representation of the trial
objection. Thus, the record discloses that defense counsel had objected during the trial on
the ground that the prosecutor’s comment on defendant’s post-arrest silence violated
defendant’s right to remain silent.
The record does not show, however, that counsel for defendant objected at trial on
the ground that the prosecutor’s argument was disingenuous because defendant had
offered to provide the name of the third person prior to trial. As counsel for defendant
noted in his written motion for new trial, it was counsel for the codefendant that made
that objection during the unreported chambers conference, and there is no indication that
counsel for defendant joined in that objection. Nor did counsel for defendant argue that
objection during the hearing on the new trial motion. We conclude that contention is
forfeited. (See Dykes, supra, 46 Cal.4th at p. 760.)
C. Doyle Error
1. Doyle Analysis
It is prosecutorial misconduct to comment on a defendant’s post-arrest silence
following Miranda warnings. (People v. Collins (2010) 49 Cal.4th 175, 203, citing
Doyle, supra, 426 U.S. at pp. 617-618.) The high court in Doyle explained: “The
9
warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth
Amendment rights, [citation], require that a person taken into custody be advised
immediately that he has the right to remain silent, that anything he says may be used
against him, and that he has a right to retained or appointed counsel before submitting to
interrogation. Silence in the wake of these warnings may be nothing more than the
arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly
ambiguous because of what the State is required to advise the person arrested. [Citation.]
Moreover, while it is true that the Miranda warnings contain no express assurance that
silence will carry no penalty, such assurance is implicit to any person who receives the
warnings. In such circumstances, it would be fundamentally unfair and a deprivation of
due process to allow the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” (Doyle, at p. 618.)
As noted, the prosecutor argued to the jury that defendant “tossed out his name
here for the first time in a way that nobody can verify anything about his story.” This
argument in effect covered defendant’s silence during four points in time: (1) silence
before defendant’s arrest (pre-arrest/pre-Miranda); (2) silence after his arrest, but before
he was given the Miranda admonitions (post-arrest/pre-Miranda); (3) silence after he was
given the Miranda admonitions prior to arraignment (post-arrest/post-Miranda); and (4)
silence after arraignment all the way up until the time he testified (post-arraignment).5
5 Trial courts advise defendants of the constitutional right to remain silent and the right
to counsel at arraignment, thus reinforcing the admonitions given as part of a Miranda
warning and the silence inducing effects of such warnings. However, defendant did not
object in the trial court on the ground that the prosecutor’s argument commented on post-
arraignment silence and he does not make that argument on appeal. As noted, ante,
defense counsel summarized the objection he made during trial to include “post-arrest
silence . . . when he was arrested, not coming forward and informing the officers of his
version of the story.” Any claim related to post-arraignment silence is forfeited. (See
Tate, supra, 49 Cal.4th at pp. 691-692 [Doyle violation forfeited]; see also People v.
Ramos (2013) 216 Cal.App.4th 195, 206-209 [generic Fifth Amendment objection is
10
It was not improper for the prosecutor to comment on defendant’s pre-arrest/pre-
Miranda silence. (Jenkins v. Anderson (1980) 447 U.S. 231, 238, 240-241 [65 L.Ed.2d
86, 96].) This is because when the failure to speak occurs before a defendant is taken
into custody and given Miranda warnings, the silence is not induced by governmental
action. (Id. at p. 240.) Doyle applies where the government induces silence by implicitly
assuring the defendant that his silence will not be used against him. (Fletcher v. Weir
(1982) 455 U.S. 603, 606 [71 L.Ed.2d 490, 494] (Fletcher).) Thus, the prosecutor’s
cross-examination questions about failing to call 911 and failing to report Rhodes after
defendant left the store and his closing argument comment that defendant “didn’t call
[911]” and “didn’t report this Mr. [Rhodes],” to the extent those comments related to pre-
arrest/pre-Miranda silence, were not improper. Moreover, in the context of this case, it
would not have been improper to comment on defendant’s failure to report Rhodes post-
arrest/pre-Miranda -- during the time period after he was arrested, before he was
Mirandized. (Id. at p. 607.) In holding that post-arrest/pre-Miranda silence is fair game,
the high court in Fletcher said, “In the absence of the sort of affirmative assurances
embodied in the Miranda warnings, we do not believe that it violates due process of law
for a State to permit cross-examination as to postarrest silence when a defendant chooses
to take the stand.” (Ibid.; see also People v. Tom (2014) 59 Cal.4th 1210, 1223, 1230-
1231 [“The prosecution may use a defendant’s pretrial silence as impeachment, provided
the defendant has not yet been Mirandized”; “[w]here a defendant could have invoked his
privilege against self-incrimination at any point—but failed to do so—the prosecution’s
use in its case-in-chief of the defendant’s postarrest, pre-Miranda silence in the absence
of interrogation cannot be deemed a ‘penalty . . . for exercising a constitutional
privilege’ ”].)
insufficient to preserve objection to prosecutor’s comment about a pre-arrest/pre-
Miranda express invocation of the right to remain silent].)
11
However, defendant complains that the prosecutor’s comments implicated his
silence post-arrest/post-Miranda. We agree. The prosecutor’s comment, “He tossed out
his name here for the first time in a way that nobody can verify anything about his story”
is a comment about defendant’s silence post-arrest/post-Miranda.
The People point out that defendant was not arrested on the instant case, but rather
he was arrested on unrelated cases. He was given Miranda admonitions, waived his right
to remain silent, talked to the officers about those other cases, and was never interviewed
about the instant case. The People, however, do not explain why these circumstances
make the prosecutor’s comments about defendant’s post-arrest/post-Miranda silence
permissible. The fact that defendant was not questioned about this case after his arrest,
but rather was Mirandized and questioned about other cases, does not nullify the silence
inducing effect the Miranda admonitions had relative to any past criminal activity. Nor
is an invocation required to trigger Doyle post-arrest/post-Miranda. All that is required is
“the sort of affirmative assurances embodied in the Miranda warnings.” (Fletcher,
supra, 455 U.S. at p. 607; accord, Salinas v. Texas (2013) ___ U.S. ___ [186 L.Ed.2d
376, 387, fn. 3] [noting that “due process prohibits prosecutors from pointing to the fact
that a defendant was silent after he heard Miranda warnings, [citation], but that rule does
not apply where a suspect has not received the warnings’ implicit promise that any
silence will not be used against him”], first italics in original, second italics added.) Not
talking about past events other than the matters about which defendant was interrogated
may have been the result of the Miranda admonitions -- you have the right to remain
silent, anything you say may be used against you and you do not have to talk without a
lawyer. Thus, the government inducement to remain silent upon which Doyle is based is
present here, notwithstanding that defendant was never questioned about this case.
The People contend that the prosecutor did not comment on defendant’s post-
arrest silence. Rather, citing People v. Champion (2005) 134 Cal.App.4th 1440, the
People contend the prosecutor simply commented on defendant’s failure to call logical
12
witnesses. Champion does not advance the People’s contention here. In Champion, the
defendant invoked his right to remain silent during police questioning, but at trial, he
testified he was not given an opportunity to tell his side of the story. (Id. at pp. 1445-
1446, 1448, 1450.) Over defendant’s objection, the trial court permitted the prosecution
to introduce rebuttal evidence that, during defendant’s police interrogation, he was given
an opportunity to make a statement but he refused.6 (Id. at p. 1445.) The Champion
court held that the prosecutor’s reference to defendant’s refusal to speak with the police
was a fair response to defendant’s claim that he was not given the opportunity to tell his
side of the story. (Id. at p. 1443.) Here, however, defendant never testified that no one
would listen to him or that he was not given an opportunity to tell his side of the story.
Thus, highlighting defendant’s failure to tell anyone about Rhodes until trial was not a
fair comment under Champion.
The prosecutor did say, “[Defendant] said [Rhodes is] responsible for this whole
robbery, a guy who’s not here. He would have been a nice witness to hear from if the
defense would have brought him in and had him testify.” That comment does reference
defendant’s failure to call witnesses,7 but that is not all the prosecutor said. The
6 The trial court in Champion also gave a limiting instruction, in which the jury was told:
“ ‘[Y]ou may consider the evidence that the defendant was offered a chance to tell his
side of the story by the police for the limited purpose of showing defendant’s credibility.
However, since the defendant had a constitutional right to remain silent when contacted
by the police, the fact that he exercised that right and declined to speak is not to be held
against him in any way, and may not be used to infer whether he’s guilty or not guilty.
[¶] Do not consider the evidence of the defendant being offered the chance to tell his side
of the story to the police and the fact that he declined to do so for any purpose, except the
limited purpose for which it was admitted.’ ” (Champion, supra, 143 Cal.App.4th at
p. 1447.)
7 Nothing we say should be construed to sanction comment about the failure to call a
witness who is likely to invoke his own right against self-incrimination. We note the
People have cited no authority supporting the propriety of such comment, but do not
decide that issue here.
13
prosecutor’s argument that defendant “tossed out” Rhodes’ name for the first time at trial
was a comment that highlighted defendant’s silence as to the identity of the third person
after defendant was arrested, post-Miranda.
We conclude that the prosecutor’s comment about defendant implicating Rhodes
for the first time at trial violated defendant’s right to remain silent and due process.
2. Harmless Error
The prosecutor’s error here is subject to harmless error review under the Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711], beyond a reasonable
doubt standard for assessing prejudice. (People v. Bolton (1979) 23 Cal.3d 208, 214.)
That inquiry requires us to ask “whether it appears ‘beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained.’ [Citation.]” (Yates v.
Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432, 448].) A reviewing court conducting a
Chapman harmless error analysis “looks to the ‘whole record’ to evaluate the error’s
effect on the jury’s verdict.” (People v. Aranda (2012) 55 Cal.4th 342, 367.) Looking at
the record as a whole, we conclude beyond a reasonable doubt that the error here did not
contribute to the verdict.
First, we look to the strength of the evidence against defendant. It is without
dispute that defendant accompanied two individuals into the store who thereafter stole
property and then led both of them to his vehicle, unlocked the doors, turned on the
engine, and drove both individuals away after a gun was used to prevent loss prevention
from interceding in the theft. Additionally, the evidence established that shortly after the
trio entered the store at least two people in the group were overheard saying, “ ‘We
should get him,’ ” and talking about robbing the store. It was apparent that the statement,
“ ‘We should get him,’ ” referred to the store clerk who had opened a nearby safe and
that the comment was said loud enough to be heard by the clerk, because the clerk closed
the safe and left nervously, without obtaining money from the safe. Defendant’s self-
serving testimony that he did not hear what the other two were talking about while he
14
deposited his coins did not square with this reaction by the clerk who the evidence
indicates was able to hear what was said. From this conversation, it can be inferred that
the group was not just three individuals acting independently, but rather they acted in
concert with each other when later approached by the loss prevention officers.
After the two loss prevention officers confronted the group about the socks
Anderson and Rhodes had taken, both officers observed defendant remove a revolver
from under the driver seat where he was sitting and hand it to Rhodes. Rhodes then
pointed the gun he had been handed by defendant at the officers. As soon as Rhodes got
back in the SUV, defendant drove the trio away. This testimony was compelling and
established defendant’s guilt beyond a reasonable doubt.
As defendant points out, his testimony was in “stark contrast” with that of the two
loss prevention officers. The contrast was too stark to be believable. For example,
defendant claims he got out of the vehicle, went to Rhodes and made Rhodes lower the
gun. But neither loss prevention officer said defendant got out of the SUV while Rhodes
pointed the revolver at them. Neither said defendant interceded in any way. And neither
had any motive to omit this from their testimony, especially since it was Rhodes and
Anderson who took the socks and the officers had no intent to stop defendant. Moreover,
defendant described nothing in the scenario that might have suggested the officers were
mistaken about what defendant was doing when they saw him bending over, reaching
under the seat, pulling at a revolver, and handing it to Rhodes, who was at that time
leaning into the SUV.
Defendant points to inconsistencies between the testimony of each officer
regarding specifically where they were when defendant handed Rhodes the gun, what
hand defendant used to pull the revolver out from under the driver’s seat, and what hand
he used to hand it to Rhodes. These minor inconsistencies in describing a rapidly
evolving, dynamic situation are immaterial.
15
Next we look to the nature of the constitutional violation. In his final cross-
examination questions, the prosecutor got defendant to admit he did not call 911 or report
Rhodes after he left the store. Later, during closing argument, the prosecutor reminded
the jury that defendant failed to call 911 or report Rhodes. Defendant acknowledges that
this argument was proper because it “undercut [defendant’s] testimony that he was not
criminally involved, but rather Rhodes had alone committed the crimes.” Thus,
defendant’s credibility was severely damaged by his failure to contact the police after the
robbery before he was ever arrested and Mirandized. A jury could reasonably infer that
that silence spoke volumes about the credibility of his trial testimony that Rhodes was
acting alone. Indeed, that defendant did not report Rhodes immediately after he dropped
off Rhodes at the transit center was a much greater hit to the credibility of defendant’s
trial testimony than his failure to mention Rhodes and the incident at the grocery store
after he had been arrested.
Given the trial evidence establishing defendant’s guilt, his failure to report Rhodes
at any point before he was arrested, and the impact his pre-arrest silence had on the
credibility of his trial testimony, we conclude beyond a reasonable doubt that the
prosecutor’s additional comment about defendant’s post-arrest/post-Miranda silence did
not contribute to the guilty verdict.
II. Evidence of Firearm Use
Defendant contends there was insufficient evidence to sustain the jury’s finding
that he “ ‘used’ ” a firearm within the meaning of section 12022.53, subdivision (b). He
claims the evidence was insufficient because there is no evidence he displayed or used
the weapon in any menacing manner. He further claims he did not deliberately show the
16
gun because purportedly neither loss prevention officer could see the gun until they saw
defendant hand the gun to Rhodes.8 These claims have no merit.
“On appeal, the test of legal sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the prosecution
sustained its burden of proof beyond a reasonable doubt. [Citations.] Evidence meeting
this standard satisfies constitutional due process and reliability concerns. [Citations.] [¶]
While the appellate court must determine that the supporting evidence is reasonable,
inherently credible, and of solid value, the court must review the evidence in the light
most favorable to the [judgment], and must presume every fact the jury could reasonably
have deduced from the evidence. [Citations.] Issues of witness credibility are for the
jury. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 479-480.) “ ‘We review the
sufficiency of the evidence to support an enhancement using the same standard we apply
to a conviction. [Citation.]’ ” (People v. Wilson (2008) 44 Cal.4th 758, 806 (Wilson).)
Section 12022.53, subdivision (b), states in relevant part: “Notwithstanding any
other provision of law, any person who, in the commission of [robbery], personally uses
a firearm, shall be punished by an additional and consecutive term of imprisonment in the
state prison for 10 years. The firearm need not be operable or loaded for this
enhancement to apply.” (Italics added.)
The jury was instructed that “ ‘[s]omeone personally uses a firearm if he or she
intentionally does any of the following: (one) displays the weapon in a menacing
manner; (two) hits someone with a weapon, or (three) fires the weapon.’ ” (CALCRIM
No. 3146, italics added.) Defendant does not dispute that this instruction correctly states
8 The parties agree that the enhancement cannot be sustained on an aiding and abetting
theory because that theory applies only where it is pleaded and proved that the defendant
violated section 186.22, subdivision (b). (§ 12022.53, subd. (e).)
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the law. (See, e.g., People v. Granado (1996) 49 Cal.App.4th 317, 321 (Granado);
People v. Johnson (1995) 38 Cal.App.4th 1315, 1319.)
Our high court has observed that use of a firearm includes “ ‘conduct which
produces a fear of harm or force by means or display of a firearm in aiding the
commission of one of the specified felonies. “Use” means, among other things, “to carry
out a purpose or action by means of,” to “make instrumental to an end or process,” and to
“apply to advantage. [Citation.]” The obvious legislative intent to deter the use of
firearms in the commission of the specified felonies requires that “uses” be broadly
construed.’ [Citation.]” (Wilson, supra, 44 Cal.4th at p. 806.) The court went on to
hold, “ ‘[W]hen a defendant deliberately shows a gun, or otherwise makes its presence
known, and there is no evidence to suggest any purpose other than intimidating the victim
(or others) so as to successfully complete the underlying offense, the jury is entitled to
find a facilitative use rather than an incidental or inadvertent exposure.’ ” (Id. at p. 807,
citing Granado, supra, 49 Cal.App.4th at p. 325, italics added.) Thus, as the Granado
court noted, if substantial evidence establishes that defendant “displayed a firearm in
order to facilitate the commission of an underlying crime, a use of the gun has occurred.”
(Granado, at p. 325.)
Here, as suggested by the language in Wilson and Granado, we determine there is
substantial evidence that defendant (1) made the presence of the gun known, (2) that he
intended to make the gun’s presence known, and (3) by making the presence of the gun
known, he facilitated the successful completion of the charged crime by intimidating the
victims. As we have noted, both loss prevention officers testified that they recognized
the object defendant pulled out from under the driver’s seat was a gun before and during
the time defendant handed it to Rhodes. Indeed, one officer explained that he started
backing up when he saw defendant pull out an object and started backing up even more
when he saw that it was a gun and defendant handed the gun to Rhodes. Based on this
evidence, defendant made the presence of the gun known and in doing so, the successful
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completion of the crime was facilitated by intimidating the victims. And “there was no
reasonable explanation for defendant’s conduct other than a desire to facilitate the
crime.” (Granado, supra, 49 Cal.App.4th at p. 325.) Indeed, it was defendant’s conduct
that initiated the transformation of a simple shoplifting into a robbery.
There was also substantial evidence that defendant deliberately made the gun’s
presence known to the loss prevention officers. Defendant pulled it out from under the
seat in their presence, and there was no evidence he attempted to conceal the gun from
their view. And indeed, he did not. Both Wilke and Miller saw it in his possession. The
additional act of handing the gun to Rhodes in the presence of the two victims further
demonstrates defendant’s intent of making the gun’s presence known to the two victims,
both while he had it in his possession and after he transferred actual possession to
Rhodes. Under these circumstances, the jury was entitled to find a facilitative use rather
than an incidental or inadvertent exposure. (Wilson, supra, 44 Cal.4th at p. 807;
Granado, supra, 49 Cal.App.4th at p. 325.) The section 12022.53, subdivision (b),
enhancement is supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
MURRAY , J.
We concur:
MAURO , Acting P. J.
HOCH , J.
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