Filed 6/1/21 P. v. Vicente CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301725
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA089368)
v.
WALTER VICENTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Alan K. Schneider, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Rene Judkiewicz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In a bifurcated jury trial, defendant and appellant Walter
Vicente was convicted of arson of an inhabited structure. (Pen.
Code, § 451, subd. (b).)1 The jury later found that defendant was
previously convicted of robbery (§ 211), that the prior conviction
qualified as a “strike” (§§ 667, subds. (b)-(j), 1170.12), and that
the prior was for a serious felony (§ 667, subd. (a)(1)). He was
sentenced to 11 years in state prison, calculated as follows: the
low term of three years, doubled for the strike prior, plus a five-
year enhancement pursuant to section 667, subdivision (a)(1).
Defendant timely filed a notice of appeal, arguing that the
trial court committed prejudicial Griffin2 error when it asked
defendant in front of the jurors if he wished to testify after
defense counsel had informed the trial court that she had no
evidence to present.
Because the trial court did not commit prejudicial error, we
affirm.
FACTUAL BACKGROUND
I. Prosecution’s case on the charged crime of arson
In October 2018, a fire erupted at the apartment complex
where defendant’s father lived. At around that time, defendant’s
father noticed that his son looked “sort of violent.”
A Los Angeles City Fire Department (LAFD) firefighter
kicked in the locked door of the apartment where the fire was.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Griffin v. California (1965) 380 U.S. 609 (Griffin).
2
He saw defendant sitting on the living room couch. When asked
what happened, defendant did not respond.
The fire was in the bedroom. After firefighters put out the
fire, they saw that defendant was lying down with his eyes open.
A paramedic found defendant to be noncompliant. He
purposefully pulled away from the paramedic, who thought
defendant’s behavior was strange. When the paramedic switched
from English to Spanish to ask what had happened, defendant
admitted that he had started the fire. Asked why, defendant
replied, “‘Because I was trying to kill everybody.’”
Based on his investigation of the fire, an LAFD arson
investigator opined that two separate fires were intentionally set
in the apartment bedroom.
II. Prosecution’s case on the prior conviction allegations
Paralegal Christopher Larson (Larson) of the Los Angeles
District Attorney’s Office testified that he obtained and reviewed
certified court documents to determine whether prior crimes
could be alleged against defendant. Those documents concerned
defendant. Proof of defendant’s identity included fingerprints.
Larson testified that the court documents showed that defendant
had been convicted in 2009 of violating section 211 (robbery).
On cross-examination, Larson testified that while clerical
errors in the documents were possible, it was unlikely.
Following Larson’s testimony, the trial court found that
defendant “is the same person in the prior conviction beyond a
reasonable doubt.”
III. Defense
Defendant did not offer witnesses or other evidence in
either phase of the trial.
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DISCUSSION
I. Relevant proceedings
In the second phase of the bifurcated jury trial, after the
prosecutor completed her direct examination of Larson, the trial
court admitted into evidence three of the prosecutor’s exhibits
without objection by the defense. These exhibits included court
documents from the prior criminal case, specifically (1) a certified
printout of the proceedings, (2) the abstract of judgment, and
(3) a certified transcript of the proceedings in which defendant
entered a plea of no contest. After noting that it had the case file
of the prior conviction and at the prosecutor’s request, the trial
court stated that it was required to take judicial notice of its own
case file.
Following cross-examination, the trial court asked if the
People rested. The prosecutor answered in the affirmative.
Defense counsel stated that she was making a motion under
section 1118.3 The trial court denied the motion and then asked,
“Is there any evidence on behalf of the defense?”
After defense counsel answered in the negative, the trial
court asked if counsel wanted her client to testify. Counsel gave
the same answer.
The trial court then asked defendant if it was “your
decision not to testify? You have the absolute right to testify and
the absolute right not to testify.” Defendant replied, “I just want
3 Section 1118 is titled, “Judgment of acquittal in nonjury
case.” It provides, in pertinent part, that if a motion for acquittal
at the close of the prosecution’s offer of evidence “is not granted,
the defendant may offer evidence without first having reserved
that right.” (§ 1118.)
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more time. I couldn’t care about that. Sentence me already.
That’s all I want.” The trial court then said, “So I will take it he
does not wish to exercise his right to testify. That was previously
explained to him, and I am satisfied that he does understand it.”
At the time the trial court asked about defendant’s decision
not to testify, defense counsel did not call the error to the trial
court’s attention. She also did not ask for an admonition,
curative jury instruction, side bar, or chambers conference.4
II. Relevant law and analysis
The Fifth Amendment to the United States Constitution
“forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence
of guilt.” (Griffin, supra, 380 U.S. at p. 615.) Our Supreme Court
“extended Griffin to prohibit comment on a defendant’s silence by
the trial judge. [Citations.]” (People v. Thompson (2016) 1
Cal.5th 1043, 1117; see also People v. Morris (1988) 46 Cal.3d 1,
35, overruled in part on other grounds in In re Sassounian (1995)
9 Cal.4th 535, 543–545 & fn. 5 & 6 [“Under the rule in Griffin,
error is committed whenever the prosecutor or the court
comments, either directly or indirectly, upon defendant’s failure
to testify”]; People v. Medina (1995) 11 Cal.4th 694, 755.) Here,
even assuming that the trial court committed Griffin error by
4 Because we conclude that the trial court did not commit
prejudicial Griffin error, we do not reach the People’s argument
regarding forfeiture.
5
asking defendant about his decision not to testify,5 any such error
was not prejudicial.
In reviewing Griffin violations to determine if the errors
were prejudicial, “the [appellate] court must be able to declare a
belief that it was harmless beyond a reasonable doubt” in order to
affirm the lower court’s ruling.6 (Chapman v. California (1967)
386 U.S. 18, 24 (Chapman).) “‘[B]rief 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.’” (People v. Turner (2004) 34 Cal.4th
406, 419–420.)
The trial court’s question and comments here were not
prejudicial because they did not suggest that an inference of guilt
should be drawn from them. In fact, when the trial court asked
defendant if it was his decision not to testify, it specifically noted
that he had the absolute right not to testify. And, immediately
after the trial court’s question and comments about defendant’s
decision not to testify, the trial court instructed the jury that its
prior instructions “still govern[ed].” One such instruction was
CALCRIM No. 355, which provides that a defendant has the
“absolute constitutional right not to testify,” that the jury is
5 The trial court could have avoided this arguable Griffin
error by asking defendant its questions outside the presence of
the jury.
6 To the extent defendant argues that the alleged Griffin
error is not subject to the harmless error test but is automatically
reversible, that argument was rejected by People v. Thompson,
supra, 1 Cal.5th at page 1118, footnote 14.
6
prohibited from considering, “for any reason at all, the fact that
the defendant did not testify,” and that the jury cannot discuss
defendant’s silence during deliberations or allow that silence to
influence the jury’s decision “in any way.” The trial court further
instructed the jury that the People had the burden to prove the
prior conviction allegations beyond a reasonable doubt and that
the jury’s verdict on those allegations had to be unanimous and
based upon the evidence. We presume the jury followed the trial
court’s instructions. (People v. Thompson, supra, 1 Cal.5th at
p. 1118.)
On appeal, defendant argues that his response that he just
wanted to be sentenced gave the jury an improper reason to find
the truth of the prior conviction allegations and the trial court’s
question and comments made it seem like defendant should have
testified to deny the truth of those allegations. We cannot agree.
This argument does not refute the presumption that the jury
followed the trial court’s appropriate instructions.7
Defendant further contends that Larson’s testimony on
cross-examination that clerical errors were possible, but unlikely,
in the preparation of court documents, demonstrates that the
alleged error was not harmless under Chapman. This argument
ignores the uncontroverted documentary evidence showing that
defendant suffered the prior conviction used as a second-strike to
7 For the same reason, we reject defendant’s contention that
because it was the trial court who commented on defendant’s
right to remain silent, “there is no way the jurors could have used
the trial court’s express statements for a purpose other than to
improperly conclude that [his] refusal to” testify “meant that he
most certainly suffered that conviction [referring to the prior].”
The instructions told the jury what to consider when deciding
whether the allegations were true.
7
double the prison term and impose an enhancement under
section 667, subdivision (a)(1).
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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