Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC449742
Duffy, J.
Defendant was sentenced to prison (and concurrently to jail terms) for burglarizing a house, possessing illicit substances for sale, and driving without a license. On appeal, he contends that the trial court erred in failing to answer the jury’s question whether he could be considered an accomplice and by giving the jury too much leeway to find him guilty of burglary. He also contends that his lawyer failed to represent him adequately during the trial.
We will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Relevant Procedural Background
The jury convicted Kenneth Franco, the defendant herein, of first degree residential burglary, a felony (Pen. Code, §§ 459, 460, subd. (a)), possessing 28.5 grams or less of marijuana, a misdemeanor (Health & Saf. Code, § 11357, subd. (b)), possessing a controlled substance for sale, a felony (id., § 11378), and driving while unlicensed, a misdemeanor (Veh. Code, § 12500, subd. (a)). The trial court sentenced defendant to four years in prison, a sentence the court made concurrent with service of jail terms for the two misdemeanors. The court ordered that this sentence be served concurrently with a 41-year and eight-month term that had recently been imposed in Santa Clara County Case No. CC463276. We affirmed the judgment in that case in August of this year. (See People v. Franco (Aug. 25, 2008, H031757) [nonpub. opn.].)
II. Facts
Defendant burglarized a San Jose residence in April of 2004. The property’s occupants discovered the burglary when one returned from work and noticed that a handgun, jewelry, other valuable property, and checkbooks were missing. A neighbor had seen someone knocking on the burglarized residence that day, and also observed a car parked in front of the house with another person inside in the back seat. The person knocking on the door, an Anglo or Latino male about six feet tall, returned to the car and drove off. The neighbor thought the circumstances suspicious, noted the vehicle description, and, when he saw the car parked nearby an hour or two later, obtained part of the license plate number.
Police found defendant behind the wheel of a car matching the neighbor’s description on the evening of the day the burglary occurred. Police recovered some of the stolen property from inside the car. They brought the neighbor to the arrest location, and he opined that defendant looked “similar” to the person he had seen knocking on the door. In court, the neighbor again stated that defendant looked similar to the man he had seen at the door of the burglarized residence. But he could not positively identify him.
Defendant showed the police an expired driver license bearing the same address as the burglarized residence. It appears that defendant lived there before the occupants who experienced the burglary, not only from the driver license evidence but also because more than once the burglarized occupants had received mail addressed to someone with the same name as defendant.
The police found methamphetamine and marijuana in the car.
The police did not find the stolen handgun in the car, but defendant voluntarily negotiated its return and enabled the police to recover it eventually.
Fingerprints found on the windowsill across which the burglar entered and elsewhere in the house could not be matched to defendant. No fingerprints could be found on the recovered handgun.
DISCUSSION
I. Proceedings After Receiving Inquiry Regarding Accomplice Liability
Defendant claims that his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to respond to the jury’s question whether it could deliberate on a theory of accomplice liability.
On the day the jury began deliberating, it sent out a note asking, “ ‘If Mr. Franco was at the scene as an accomplice but didn’t enter the house, can he be found guilty of Count 1?’ ” Count one, the jury had been instructed, was the residential burglary charge. The jury sent this note out at 11:04 a.m. By 11:26 a.m. the parties had returned to court to discuss the note. The trial court asked counsel to consider a response during lunchtime. Defense counsel responded, “Thanks, judge,” and did not ask the court to have the jury stop deliberating. Before lunchtime even arrived, however, the jury found defendant guilty, announcing at 11:55 a.m. that it had reached a verdict. The court did not receive the verdict then, but waited until after lunch, and the clerk read the verdict at 1:43 p.m.
Defendant has either forfeited, by counsel’s inadvertence, or waived, by counsel’s tactical decision, this claim. (See People v. McCleod (1997) 55 Cal.App.4th 1205, 1220.) Not only did counsel not request that the trial court stop deliberations after the jury’s inquiry came in, but after the jury returned to the courtroom and the court accepted the verdict under seal, she could have asked the court to instruct the jury on accomplice liability and return to deliberate. (See People v. Hernandez (1985) 163 Cal.App.3d 645, 657.) Or she could have made this request after lunch but before the verdict was unsealed and read. She took no action.
Moreover, there was no due process violation. Though defendant couches this aspect of the proceedings in federal constitutional terms, his constitutional claim is predicated on a claim that the trial court’s failure to stop deliberations on receiving the inquiry violated state law. The court, however, had no duty to do so (see People v. McCleod, supra, 55 Cal.App.4th at pp. 1219-1220), especially given that the jury was asking about a matter that was not germane to the parties’ theory of the case. Both parties state that the case focused on whether defendant entered the house with the intent to steal. Defendant’s claim is without merit.
And if counsel decided to forgo moving the trial court to instruct the jury to stop and/or resume deliberating, we do not fault her for doing so. As noted, the parties agree that the case focused only on whether defendant entered the house and if so, whether he intended to steal—not on whether he aided and abetted someone else. The trial court told the jurors at the outset that there were “only really two issues in this case” with respect to the burglary: “What evidence is there that it was Mr. Franco who entered the residence?” and if he did, did he “enter that residence with the intent to steal?” There was no instruction on accomplice liability, as one would expect if the prosecution had tried to prove that even if defendant did not break in to the house, he was an aider and abettor, i.e., one who knows that “the perpetrator intends to commit a criminal act” and has “the intent to encourage or facilitate such act.” (People v. Richardson (2008) 43 Cal.4th 959, 1021.) An aider and abettor has the same liability as the direct perpetrator of a crime (People v. Williams (2008) 43 Cal.4th 584, 636; see Pen. Code, § 31), so there would be no benefit to defendant from an instruction on accomplice liability. Giving such an instruction would have invited the jury to find him guilty of burglary even if one or more jurors thought he stayed in the car while the other man entered the house. Defendant argues that the jurors might have thought he was an accomplice but not been able to find true all of the elements of accomplice liability, i.e., the knowledge and intent requirements (Richardson, supra, at p. 1021). But defense counsel, not knowing the jury’s thinking, cannot be faulted for choosing to rely on the only theory the prosecution was advancing.
II. Ineffective Assistance of Counsel
Defendant presents multiple claims of ineffective assistance of counsel. We find none to have merit.
A claim of ineffective assistance of counsel in violation of the Sixth Amendment to the federal Constitution entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)
A. Failing to Ask the Trial Court to Stop the Jury’s Deliberations
We have concluded that defendant forfeited or waived his claim that the trial court erred in failing to order the jury to stop deliberating and/or resume doing so after the jury inquired about accomplice liability. Defendant argues that if the claim was forfeited or waived, counsel’s failure to raise it constituted ineffective assistance of counsel.
We do not agree. As explained, giving an accomplice-liability instruction ran the risk of exposing defendant to liability as an accomplice. To be sure, that was not immediately evident when the jury sent out the note. But counsel cannot be found constitutionally deficient for not immediately demanding that deliberations be suspended. “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S. 1, 8.) It was already almost 11:30 a.m. and the trial court asked counsel for both parties to think through the matter over lunch so it could give an answer afterward. Counsel could reasonably have believed that if the jury remained interested in the accomplice liability theory it could wait half an hour for an answer. She was not constitutionally deficient for failing to anticipate that the jury would very quickly lose interest in a matter that just minutes before it had felt important enough to bring to the court’s attention.
As for counsel’s failure to request that the accomplice-liability issue be resolved following the announcement of a verdict shortly before noon and again before the verdict was recorded after the lunch hour, defendant again fails to persuade that her performance was deficient. “A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389.) In sum, defendant “must show that counsel’s action or inaction was not a reasonable tactical choice.” (People v. Jones (2003) 30 Cal.4th 1084, 1105.) On hearing that the jury had reached a verdict, and while awaiting its announcement, all the while not knowing whether the jury had found defendant guilty or not guilty, counsel could have made a reasonable tactical choice that if the latter had occurred it could snatch defeat from the jaws of victory to ask the court to direct the jurors to reconvene to deliberate defendant’s liability as an accomplice.
B. Failing to Act During Proceedings on Statements to Police
Citing Doyle v. Ohio (1976) 426 U.S. 610, defendant claims that counsel was ineffective for failing to seek the exclusion of testimony that, in his view, unconstitutionally alerted the jury that he remained silent when a police officer asked him certain questions. (The prosecution’s theory was that defendant’s silence amounted to adoptive admissions.) Defendant also claims ineffective assistance of counsel, arguing that effective counsel would have objected on the ground that the testimony was substantially more prejudicial than probative. And he claims that counsel was ineffective for failing to object to prosecutorial remarks on the testimony at closing argument and, on grounds of Doyle error, to an instruction on adoptive admissions.
A police officer testified that he interviewed defendant at the police department after his arrest on the evening of the burglary. The officer read defendant his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and he agreed to be interviewed, answering certain questions but remaining silent when asked others. He admitted possessing the methamphetamine found in the car’s trunk, but said it was for his own use. He admitted possessing the marijuana found in the car’s trunk. He admitted being on the street of the burglarized residence that day, but denied committing the burglary. He said that he bought the property that turned out to be stolen from a friend. When the officer asked defendant whether he had once lived at the address at which the burglary occurred, defendant did not reply, and he did not explain why he was on the street of the residence on the day of the burglary. Nor did defendant reply to certain questions about the stolen handgun—probably questions about the gun’s location—though he did speak at times on that topic, first denying knowing anything about the gun but later volunteering to try to help retrieve it. At closing argument, the prosecutor commented on defendant’s unwillingness to say whether he once lived at the burglarized residence or answer one or more questions about the stolen gun.
In Doyle v. Ohio, supra, 426 U.S. at page 618, the United States Supreme Court held that “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.” (Fn. omitted.) In People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118, the Doyle rule was extended to situations in which a police officer testifies about a defendant’s interrogation before the defendant has testified in court and become subject to impeachment.
But Doyle stands for the proposition that a defendant’s invocation of constitutional rights to silence or counsel should not be paraded before the jury, penalizing his express invocation of his rights to silence or counsel. (See Doyle v. Ohio, supra, 426 U.S. at p. 619.) Doing this, as the United States Supreme Court observed in another context, “cuts down on the privilege by making its assertion costly.” (Griffin v. California (1965) 380 U.S. 609, 614; see People v. Fabert (1982) 127 Cal.App.3d 604, 609; People v. Stack (1986) 112 Ill.2d 301, 306 [493 N.E.2d 339, 341].) We agree with People v. Hurd (1998) 62 Cal.App.4th 1084, 1112-1113 that Doyle does not apply when a defendant elects to speak but chooses not to answer certain questions. “Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights.” Like Hurd (id. at pp. 1092-1093), we decline to follow any federal circuit or district court cases that may take a different view. (Cf. People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 118-119 [noting the controversy but declining to take a position on the issue].) Hurd, of course, spoke of impeachment, not an interrogating officer’s testimony before a defendant has testified. But because Coffman and Marlow, supra, at page 118, extended Doyle v. Ohio, supra, 426 U.S. 610, to the latter situation, we think it fair that the limits on Doyle stated in Hurd should also apply to that situation.
Regarding defendant’s point that the testimony was substantially more prejudicial than probative (Evid. Code, § 352), we disagree. His silence on occasion during the interrogation was tantamount to an adoptive admission (Evid. Code, § 1221), which is admissible and probative of guilt. (See People v. Fauber (1992) 2 Cal.4th 792, 852 [silence need not follow a direct accusation to constitute an adoptive admission].) Furthermore, and contrary to defendant’s view, because the jury heard evidence of conduct fitting sufficiently within the contours of the class of conduct constituting adoptive admissions, the instruction the trial court gave on adoptive admissions, CALCRIM No. 357, was unobjectionable.
Defendant notes that his counsel did argue that the court should forgo giving the instruction, essentially on grounds that, applying the law to the evidence of his conduct, his conduct did not constitute one or more adoptive admissions. But defendant faults counsel for not citing Doyle v. Ohio, supra, 426 U.S. 610, as another legal ground for not giving the instruction.
In sum, if counsel had objected to the officer’s testimony, to the prosecutor’s comments at closing argument, or to the trial court’s giving of the adoptive admission instruction, it would have been an idle act in each case. “Representation does not become deficient for failing to make meritless objections. There was no . . . reason to object . . . .” (People v. Ochoa (1998) 19 Cal.4th 353, 463.) There was no ineffective assistance of counsel.
C. Failing to Request CALJIC No. 2.71.5 to Limit the Effect of any Adoptive Admissions
Defendant claims that he received ineffective assistance of counsel in that counsel failed to ask the trial court to instruct the jury, per CALJIC No. 2.71.5, that any accusatory statement to which defendant did not respond must not be accepted as substantive proof of the accusation, but only to show (if the jury so found) the context in which defendant displayed conduct suggesting an adoptive admission (Evid. Code, § 1221).
This claim fails for want of a sufficient supporting argument. Defendant argues on appeal that because counsel failed to seek the purportedly curative instruction “it is likely the jury relied on appellant’s silence . . . about whether he used to live at [the burglarized residence] as substantive proof of that fact and also as an inference that he committed the burglary.” But the jury was entitled to do so—that was the purpose of presenting that evidence. Indeed, had the jury been given CALJIC No. 2.71.5, it would have been told: “the circumstance of [his] . . . [conduct] on that occasion may be considered against [him] . . . as indicating an admission that the accusation was true.” (Brackets in orig.)
III. Constitutionality of Giving CALCRIM No. 376
Defendant raises two claims regarding CALCRIM No. 376. He claims that errors regarding the giving of that instruction violated his due process rights under the Fifth and Fourteenth amendments to the United States Constitution, and also a due process right he discerns under the Sixth Amendment.
A. CALCRIM No. 376 and the Prosecution’s Burden of Proof
In anticipation of our Supreme Court’s decision in People v. Najera (2008) 43 Cal.4th 1132, which was pending at the time defendant filed his opening brief, defendant argues that giving a version of CALCRIM No. 376, an instruction guiding jurors in how to evaluate evidence of possessing recently stolen property, was unconstitutional because it shifted the burden of proof to him to show that the property found with him in the car was not stolen.
The written and oral instructions the trial court gave the jury followed the pattern language of CALCRIM No. 376.
The trial court instructed the jury in the following language, which applied CALCRIM No. 376 to the charges against defendant:
In our view, People v. Najera, supra, 43 Cal.4th 1132, forecloses defendant’s claim. Najera said of CALJIC No. 2.15, a pattern instruction that is similar to CALCRIM No. 376 in that both give the jury guidelines in considering evidence of possessing recently stolen property, that CALJIC No. 2.15 “ ‘did not directly or indirectly address the burden of proof,’ nor did it affect the prosecution’s ‘burden of establishing guilt beyond a reasonable doubt.’ ” (People v. Najera, supra, at p. 1140.) It is evident to us that the Supreme Court would reach the same conclusion with regard to CALCRIM No. 376. Accordingly, we are compelled to reject defendant’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
B. Ambiguity Regarding the Application of CALCRIM No. 376 Only to the Burglary Charge
Defendant maintains that the trial court’s charge to the jury was ambiguous in that it did not make clear that CALCRIM No. 376 applied only to the burglary charge. There is, however, no reasonable likelihood that the jury applied the instructions in a constitutionally infirm manner.
The jury received a written version of CALCRIM No. 376 that told the jurors, as relevant here, “If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of Burglary based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed Count 1 [the burglary charge]. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt of Count 1.”
When the trial court recited this instruction to the jury, it stated, in a deviation from the language of the written version of CALCRIM No. 376 furnished to the jury, “If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been stolen, you may not convict the defendant based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the crimes charged, particularly in Count 1. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove he’s guilty of Count 1.” (Italics added.)
“ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” ’ ” (People v. Ayala (2000) 24 Cal.4th 243, 289.) The same test applies under California law. (People v. Clair (1992) 2 Cal.4th 629, 663.)
When instructing the jury according to CALCRIM No. 376, the trial court must ensure that the jury knows that it applies only to theft-related charges, of which burglary is one. (See People v. Prieto (2003) 30 Cal.4th 226, 248 [it is improper to apply the predecessor to CALCRIM No. 376, CALJIC No. 2.15, to “nontheft offenses”].)
The trial court gave the jurors copies of the written instructions for use during deliberations. “To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control” (People v. Wilson (2008) 44 Cal.4th 758, 803) a reviewing court’s assessment (People v. Sparks (2002) 28 Cal.4th 71, 75, fn. 3) of a criminal defendant’s claim of instructional ambiguity.
The written version of CALCRIM No. 376, which controls in these circumstances, made clear that the instruction was to be considered only in connection with the burglary charge. Even the oral version would pass the reasonable likelihood test. Although the trial court should not have said “the crimes charged, particularly in Count 1,” it later referred only to Count 1 and did so unambiguously. Other instructions told the jury at least twice that Count 1 was the burglary charge. We find no violation of defendant’s constitutional rights.
IV. Claim of Cumulative Error
Defendant claims that his due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution, was violated because of the cumulative effect of the errors he discerns in the trial.
A claim of cumulative error is in essence a due process claim and is often presented as such (see, e.g., People v. Rogers (2006) 39 Cal.4th 826, 911). “The ‘litmus test’ for cumulative error ‘is whether defendant received due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
Aside from the trial court’s deviation from the language of the written version of CALCRIM No. 376 when reciting that instruction to the jury—a mistake that did not result in a violation of defendant’s due process rights—none of defendant’s claims identifies any problems in the trial. Due process guarantees defendant a fair trial, not a perfect one. (People v. Osband (1996) 13 Cal.4th 622, 702 (per curiam).) His trial was fair.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Elia, Acting P. J., Bamattre-Manoukian, J.
The written version of CALCRIM No. 376 told the jury:
“If you conclude that the defendant knew (he/she) possessed property and you conclude that the property had in fact been recently (stolen/extorted), you may not convict the defendant of Burglary based on those facts alone. However, if you also find that supporting evidence tends to prove (his/her) guilt, then you may conclude that the evidence is sufficient to prove (he/she) committed Count 1.
“The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove (his/her) guilt of Count 1.
“Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”
The version of CALCRIM No. 376 read to the jury by the trial court instructed:
“If you conclude that the defendant knew he possessed property and you conclude that the property had, in fact, been stolen, you may not convict the defendant based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed the crimes charged, particularly in Count 1.
“The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove he’s guilty of Count 1.
“Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion . . . that the defendant is guilty of that crime has been proved beyond a reasonable doubt.”