Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09NF2322, David A. Thompson, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, ACTING P. J.
Any prejudice which may have resulted from the prosecutor’s argument was harmless beyond a reasonable doubt. Sufficient evidence supports the jury’s finding the victim suffered great bodily injury. We affirm.
I
FACTS
A jury found defendant Rogelio Lopez guilty of hit and run, aggravated assault with a true finding on the great bodily injury enhancement, vandalism, and aggravated assault. The court suspended imposition of sentence and placed defendant on three years’ formal probation. One of the terms and conditions of probation was that defendant serve 365 days in Orange County jail.
August 1, 2009 Incident
Eufemia Santos testified Saira Deleon was her daughter and defendant was her “daughter’s boyfriend.” On the date of the crimes, August 1, 2009, Deleon’s baby was nine months old. On that day, Santos and her daughter had a van. “On the side that the driver goes in it had one door, on the other side it had a sliding door.”
At 2:45 a.m. on August 1, there was loud banging at the door of Santos’s apartment on Norma Lane in Anaheim where Santos, her daughter and the baby lived. Santos called the police. When the man banging “tore the screen of the door, ” Santos saw the person yelling and banging was defendant. Deleon “opened the door, and told him to leave because [her] mom is calling the police.”
Santos continued to speak with the police and then she “saw that he was carrying the baby.” Santos said: “He went out to the street, he was going straight to the van.” Santos asked defendant why he was taking the baby, and he said: “I’m going to take her to Ensenada.” Santos told him that he was not going to take the baby. She did not want defendant to take the baby because defendant was “aggressive” and “doesn’t feed the baby.”
Santos described what happened next: “I got into the van from the passenger side. He kept holding the baby in his arms. And Saira was across the street as well, and he gave her the baby. Before he gave the baby to Saira, Saira told me, ‘Let him take the baby away because that way the police will get him sooner or faster.’” At that point, defendant “grabbed [Santos] aggressively from the shoulder.” Santos continued describing what happened: “He threw me out of the car. He threw me on the ground. And I kept holding the phone on my hand. And at that time I told the police, ‘The man is being aggressive towards me.’ So they told me ‘Give me the license plate number.’ Because the person I was talking to kept on asking me, ‘Do you know the man? Do you know the man?’ And she told me, ‘Give me the number of the car.’ [¶] I got up from where I was and I wanted to take a picture from the license plates in the rear with the phone I was holding in my hand. And then I felt that on my left side again I was grabbed again, and he pulled me all the way to the door of my house.”
Santos was behind the van taking a picture when she felt defendant grab her shoulder. Defendant was “calling [her] words, ” and pulled her. According to Santos, defendant told her “not to get involved with him because [Santos] did not know who he was, and that he had family in the police and that he had family in the Army, and to be aware that he could do worse things to me.” Defendant pulled Santos, who stood four feet six inches tall and weighed 105 pounds, and kicked her. She said he kicked her “many, many times.” She let go and fell back. Santos “grabbed onto his pants and started yelling to ask for help.”
After that, Santos lost her phone and “was not aware of what was happening, and the police was not arriving, and [she] was yelling and yelling and no one came to help [her].” Santos described how defendant pushed her daughter into the van and “[h]e pushed both of them into the van. He was closing the door and [Santos] was on the side of the driver. And then [Santos] got nervous even more because he was yelling at both of them. So [Santos] positioned [herself] at the window of the driver and [she] was telling him, ‘Do not take them. Let them go because the police is going to get you.’” Defendant hit Santos with the door, and then “when he closed the door, [her] pants got stuck in the door and he was already moving back in reverse. It was so sudden that [she] didn’t feel anything, not until [she] was already on the ground.”
Santos said the car was going fast and was pulling her. She said she was dragged for about 12 feet. She could not feel her head or her feet. Her face was bleeding. She was placed in a neck brace and hospitalized for four days. Several months later, Santos had a scar at the bridge of her nose, large bruises on her elbow, knees and shoulder and “a mark” on her right hip and one on her right hand, too. Since the incident, Santos had not been able to kneel and her hands get numb. The first officer on the scene said he found “an elderly female laying in the street moaning and groaning, bleeding from the head, and had several injuries to her body, arms, legs, things like that.”
Defense Counsel’s Final Argument
Defense counsel argued: “And I think it’s pretty evident that Detective Larochelle was rather inept throughout this investigation. I cannot understand, for instance, why, knowing what he did, when he did, he didn’t find this defendant. The defendant wasn’t running anywhere. He was in Santa Ana. They had information that he stayed with his mother. And why it took 11 or 12 days to find him, to talk to him, and just make a few calls to her phone and say, ‘I want to talk to him and you, ’ and she never called back, and kind of leaving it at that until finally he gets the task force to go after him. I mean, that’s poor police work. The conduct of the defendant is not consistent with the consciousness of guilt simply by not volunteering to surrender to the Anaheim Police Department.”
Prosecutor’s Rebuttal Argument
In rebuttal, the prosecutor argued: “And the last topic, and then I’ll make my final request of you, is the final conclusion of Mr. Heneghan that Detective Larochelle was inept in this case, which he wasn’t. I think the evidence shows that he wasn’t. I don’t know what... in this day and age that Rogelio Lopez, without a date of birth, without an address, with the one witness who might know how to identify him and locate him is being stubborn with you and recalcitrant and not giving you information you need. Well, it might be a little difficult to find a Rogelio Lopez in Santa Ana in 2009 and track down one specific Rogelio Lopez. And the second that he did identify him, positively identify him, which was on August 6th when he was able to trade photos with Ms. Santos, what did he and Detective Faria do? They went out to his house. They went looking for him. Do you think that Detective Larochelle is only on this case, that he has no other case load? And according to the defendant, in his Miranda - in his interview - I call it a Miranda interview because of the Miranda rights read to him at the beginning. In his interview he knew that these other officers, whoever they may be, were looking for him because, according to him, she had conversations with them on the phone. If he knows he has done nothing wrong and these officers are looking for him, go talk. Go, go talk. Detective Larochelle can only do so much. He left four voicemails specifically saying, ‘Call me back.’ And [Saira] never called him back. He has no contact information for the defendant. By the time he does talk to the defendant, oh, guess what, according to the defendant the voicemails that he’s been leaving have been on the defendant’s phone, and yet the defendant doesn’t make contact.”
The Judge’s Concern
The judge called counsel into chambers and stated: “I am a little bit concerned about the prosecutor’s closing remarks and comments, specifically on the fact that the defendant knew that the police were looking for him and he didn’t go and talk to the police. This is potentially Griffin error to comment on the defendant’s conduct in that regard. The defense didn’t object on that ground. I interposed myself in the matter. But the fact is he’s under no obligation and cannot be compelled to talk to the police under any circumstances. And the fact that he didn’t choose to call them when he knew they were looking for him, they can’t really consider that. So it’s a little bit of a problem.”
Lengthy discussions between counsel and the court ensued. Toward the end of the discussions, the court stated: “... I’m inclined to give a curative instruction that solves this problem rather than have to retry this case two years from now.” Defense counsel agreed the court should admonish the jury.
Court’s Instruction
The court included in its instructions to the jury: “A defendant has an absolute constitutional right not to talk to the police. Do not consider for any reason at all the fact that the defendant did not talk to the police before he was arrested, even if he knew the police wanted to talk to him. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
II
DISCUSSION
Prosecutor’s Argument
Defendant argues on appeal his “judgment must be reversed because the prosecutor committed prejudicial Griffin error by commenting on the accused’s exercise of his Fifth Amendment right to remain silent and not talk to the police.” The Attorney General contends the prosecutor’s statements were fair comment on the evidence.
“[T]he Fifth Amendment prohibits comment on the defendant’s silence....” (Griffin v. State of California (1965) 380 U.S. 609, 614, fn. 5.) “[C]omment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice, ’ [citation].” (Id. at p. 614, fn. omitted.) “What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” (Ibid.) “[G]riffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” (Baxter v. Palmigiano (1976) 425 U.S. 308, 319.)
In People v. Guzman (2000) 80 Cal.App.4th 1282, the court found Griffin error where the prosecutor compared the defendant, who did not speak with the police or testify, to the victim, who both spoke with the police and testified. (Id. at p. 1287.) The court stated: “Here, there can be little question that the prosecutor impliedly invited the jury to consider Guzman’s failure to testify as proof that his actions were criminal. By the prosecutor’s own admission, the underlying thesis of his rebuttal argument was to draw a comparison between Hall and Guzman. In so doing, the prosecutor not only contrasted Hall’s decision to speak with the police with Guzman’s decision to flee, he also repeatedly emphasized Hall’s decision to testify. The prosecutor was careful not to expressly compare this decision with Guzman’s failure to testify. But by virtue of his comparative paradigm, the prosecutor rather clumsily alerted the jury to the fact that, unlike Hall, Guzman was not willing to explain his side of the story in court. Moreover, by telling the jury that Hall was ‘responsible’ because he testified, the prosecutor insinuated that Guzman was irresponsible and ‘criminal’ because he failed to do so.” (Id. at p. 1288.)
While there is certainly some similarity between what the prosecutors in Guzman and the instant case argued, there are differences too. Notably, in this case, the prosecutor was commenting on both the evidence and defense counsel’s argument that an investigating officer was inept.
During closing argument in People v. Mincey (1992) 2 Cal.4th 408, the prosecutor talked about the applicability of the instructions to the evidence, specifically the instruction about a witness being willfully false. “After observing that defendant never admitted killing James or having the intent to kill James, the prosecutor remarked, ‘[Defendant] was not a witness anyway.’” (Id. at p. 446.) The Mincey court stated: “When considered in light of the evidence before the jury and the context in which it was made, it becomes clear that the prosecutor’s statement was not directed at, and would not have been understood by the jury as referring to, defendant’s failure to testify.” (Ibid.) The court concluded: “Moreover, even if we were to accept defendant’s characterization of the prosecutor’s remark, it was an indirect, brief and mild reference to defendant’s failure to testify as a witness without any suggestion of an inference of guilt. [Citation.] Such references have uniformly been held to be harmless error. Under the circumstances in this case, the error was certainly harmless beyond a reasonable doubt. [Citations.]” (Id. at pp. 446-447.)
In the case here, the circumstances are much closer to those in Mincey than in Guzman. The prosecutor was commenting on the evidence as well as responding to defense counsel’s attack on the prosecution’s case. The reference to defendant not contacting the police was brief and, while it could be stretched to be construed as a comment on defendant’s decision not to testify, it was brief and no more than an indirect reference.
The trial court immediately recognized there might be a problem, and admonished the jury to disregard the prosecutor’s comments. “Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. [Citation.]” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
The evidence against defendant was quite strong, the prosecutor’s comments were brief and indirect and the trial judge acted promptly and appropriately to prevent any problem. Under the circumstances in this record, we conclude beyond a reasonable doubt that if there was error, such error did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18)
Great Bodily Injury
Defendant also contends the jury’s finding of great bodily injury is not supported by the evidence. The Attorney General argues Santos’s injuries were more than transitory and short-lived and defendant’s argument is without merit.
“Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” (Pen. Code, § 12022.7, subd. (a).) “As used in this section, ‘great bodily injury’ means a significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) ‘““Whether the harm resulting to the victim... constitutes great bodily injury is a question of fact.... If there is sufficient evidence to sustain the... finding... we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.”’ [Citation.]” (People v. Mixon (1990) 225 Cal.App.3d 1471, 1489.) “If the injuries are more than “‘transitory and short-lived bodily distress[”]’ they ‘will qualify as “great bodily injury.”’ [Citation.]” (Ibid.)
Here Santos, an elderly woman who weighed 105 pounds, was left bleeding from her head and face and was hospitalized for four days. She has a permanent scar on her face. She still had bruises from her injuries at the time of trial. She could no longer kneel. She had no feeling in some parts of her body and loss of motion in other parts. This record supports the jury’s finding she suffered great bodily injury.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.