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									Filed 6/15/11 P. v. Melendez CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A126528
v.
JULIO MELENDEZ,                                                          (San Francisco County
                                                                          Super. Ct. No. 166818-02)
         Defendant and Appellant.


         This is an appeal from final judgment following a jury‘s conviction of appellant
Julio Melendez for first degree murder and unlawful possession of a handgun. Having
found no error in the judgment, we affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND
         On February 28, 1997, an indictment was filed against appellant alleging that he
committed first degree murder with an enhancement for personal use of a firearm within
the meaning of Penal Code section 12022.5, subdivision (a) (count one), and was a felon
in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1)
(count two). In connection with both counts, it was alleged that appellant had served two
prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
         The indictment related to the fatal shooting of Jose Quesada (victim) at about 2:00
a.m. on November 21, 1996, on Woodward Street at 14th Street in San Francisco.1 In
December 1997, codefendant Jose Fuentes was arrested for this murder. Fuentes later

1
         The victim died of multiple gunshot wounds to the neck, shoulder, and legs.


                                                             1
pleaded guilty to voluntary manslaughter and was jailed. Appellant, however, was not
arrested until June 6, 2008, when he was discovered living in Virginia after being
detained at a traffic stop and found in possession of a suspended California license in the
name of Carlos Corvoa. Appellant was arraigned in California on July 2, 2008, and a
jury trial began May 20, 2009.

I.     Jury Trial.
       A.     Karen Barranco.
       At trial, witness Karen Barranco testified that, on the night of the murder, she was
in the car of her boyfriend, Juan Esparza, when a fight broke out at the El Toro nightclub
parking lot. Barranco saw the victim arguing with several young men, two of whom she
identified as appellant and codefendant Fuentes. According to Barranco, the fight then
moved to Woodward Street just off 14th Street. She drove there with Juan Esparza and
his brother, Ivan Esparza; appellant and Fuentes drove in a black Mustang; and the victim
and his passenger, Gustavo Campos, followed in an old American car.
       After parking on 14th Street, Barranco, who remained in the car, saw the victim
arguing with the Esparza brothers, appellant and Fuentes on Woodward Street. Barranco
then saw the Esparza brothers, appellant and Fuentes walk towards 14th Street and heard
gunshots from the corner of Woodward Street near 14th Street. She did not see anyone
with a gun, or see from where the gunshots were fired. She left the scene when the
Esparzas and Campos ran to the car and they drove off. Their car was later pulled over
by police for driving the wrong way down 14th Street.

       B.     Juan Esparza.
       Juan Esparza, who knew appellant, Fuentes and the victim, confirmed Fuentes and
the victim were fighting at the El Toro nightclub before leaving in separate cars to fight
one-on-one on Woodward Street. Fuentes had a gun in his hand and was playing around
with it, showing it to people. This prompted Esparza to enter a nearby ground-floor
apartment to summon Fuentes‘s friends to help calm him down. Esparza left the
apartment after hearing about four gunshots, at which point Fuentes pointed a gun at him



                                             2
and his brother. Esparza grabbed the gun from Fuentes and beat him with it before
discarding it and leaving the scene.
       At trial, Esparza testified that, as he left the scene, he saw appellant holding a gun.
He did not recall telling police on the night in question that he did not see who ran off
with a gun and was not present when the victim was shot.2

       C.     Alvaro Vargas.
       Alvaro Vargas testified that, when he was on Woodward Street at about 2:00 a.m.
on the night in question, he saw a group of people gathered up the street. Vargas then
saw a man walk down from 13th Street toward the crowd, and saw two other men enter a
gate as the first man passed. Next, Vargas saw two men exit the gate and, with their
backs turned away from him, shoot the man who walked past the gate. Vargas gave
inconsistent testimony regarding whether the two men he saw enter the gate were the
same two men who later exited the gate and fired the shots. He also testified that he did
not recall where the shooters went after the shooting, yet told police shortly after the
shooting that he was positive the shooters reentered the gate. The only physical
characteristic of the shooters that Vargas could provide was that one had ―wet-like wavy
hair‖ or ―straight wavy hair, gelled.‖ Before the grand jury, Vargas testified appellant‘s
hair matched this description; yet at trial he testified appellant‘s hair differed.

       D.     Ana Barrera.
       Ana Barrera, who lived at 14th and Woodward Streets, was awoken in the early
morning on the day of the murder by four or five gunshots. She jumped to the floor from
her bed by the window and heard a man say in Spanish: ―I dropped the stupid thing,‖ and
―Julio, give me the gun.‖ She looked out the window and saw a man walking around in
circles, saying in a different voice: ―Don‘t kill me.‖ She also heard squealing tires and
saw two people standing next to a fence across the street, several people running and a
car driving off.

2
       In his police statement, Esparza reported that, after hearing gunshots as he was
driving away, the only person he saw was a black man running from the scene.


                                               3
       E.     Yasenia De Leon.
       Yasenia De Leon, the live-in girlfriend of codefendant Fuentes, testified that, on
the night in question, she was home when someone called to tell her there had been an
―accident, a shooting,‖ and that she needed to go to the hospital to identify Fuentes, who
was beaten up. Following Fuentes‘s arrest, on December 10, 1997, De Leon was
interviewed by police, a transcript of which was read to the jury.
       According to the interview transcript, De Leon initially denied knowing appellant
or about the shooting. At some point, police stopped their questioning and put her in a
room with Fuentes. After talking to Fuentes, De Leon acknowledged to police that
Fuentes had told her that he shot the victim while drunk following a fight at the El Toro,
but said it was appellant who actually killed him by shooting him in the head. Afterward,
Fuentes was attacked and beaten by the victim‘s friends.
       De Leon also told police that she, Fuentes and their daughter went to El Salvador
between December 1996 and June 1997, and that, while there, they saw appellant.
De Leon heard appellant discussing the shooting with Fuentes. In this conversation,
appellant admitted shooting the victim and regretting it.
       At trial, De Leon repudiated her previous statements to police. De Leon claimed
the police treated her like a criminal during the interview, and that she and her daughter
had been hungry and scared. At some point, she was placed in a room with Fuentes, who
told her to tell police what they wanted to hear to avoid being deported.
       F.     Appellant’s Pre-Trial Statements.
       Appellant was interviewed by police on June 27, 2008, shortly after his return
from Virginia. Appellant acknowledged attending a dance at El Toro on the night of the
murder, and that someone began ―looking for trouble‖ with the victim. He also
acknowledged leaving El Toro and driving to Woodward Street with several other
vehicles, at which point someone entered a house and returned with a weapon. A short
while later, shots were fired. Appellant, however, denied having or firing a gun. When
the officer expressed disbelief and told appellant that witnesses had seen him with a gun,



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appellant responded that, whether or not they believed him, he had nothing else to tell
them.

II.      The Verdict and Sentencing.
         On June 17, 2009, the jury convicted appellant of first degree murder and being a
felon in possession of a firearm, and found true the enhancement for personal use of a
firearm. In a bifurcated proceeding, the trial court found true the allegation that appellant
had served two prior prison terms. After denying appellant‘s new trial motion, the trial
court sentenced him to a total indeterminate term of 35 years to life in prison. This
appeal followed.

                                        DISCUSSION
         Appellant raises five main contentions for our review: (1) the trial court erred by
admitting hearsay evidence in the form of testimony from witness Ana Barrera; (2) the
trial court erred in denying his motion for mistrial based on improper testimony by an
investigating officer; (3) his constitutional right to effective assistance of counsel was
violated by his attorney‘s failure to object to improper and prejudicial testimony by a
police officer regarding a witness‘s veracity; (4) the trial court prejudicially erred by
admitting police officer testimony opining that he was guilty; and (5) the prosecutor
violated his constitutional rights by repeatedly referring to his silence during a police
interview as evidence of guilt during closing arguments. We address each contention in
turn.

      I. Did The Trial Court Abuse Its Discretion By Admitting Hearsay From
            Ana Barrera?
         Appellant first contends the trial court prejudicially erred by permitting Barrera to
testify that, when upstairs in her apartment on 14th Street on the night of the murder, she
heard an unidentified man say, ―Hey, I dropped the stupid thing. Julio, hand me the
gun.‖ According to appellant, whose first name is Julio, ―[this] testimony was an implied
assertion intended for the truth of the matter stated, and was inadmissible and unreliable
hearsay by an unknown declarant that should have been excluded.‖ The People respond
that Barrera‘s statements were either nonhearsay or hearsay admissible under the

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contemporaneous or spontaneous statement exceptions to the hearsay rule. The following
standard of review applies to the trial court‘s ruling.
       ― ‗Hearsay evidence‘ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.‘ ‖ (Evid. Code, § 1200, subd. (a).) Hearsay is generally inadmissible unless it
comes within a specific exception to the hearsay rule. (In re Scott (2003) 29 Cal.4th 783,
823.) ―A trial court has broad discretion in deciding the admissibility of all evidence,
including hearsay evidence. (People v. Beeler (1995) 9 Cal.4th 953, 978.) Its ruling on
admissibility ‗implies whatever finding of fact is prerequisite thereto; a separate or formal
finding is, with exceptions not applicable here, unnecessary. (Evid. Code, § 402, subd.
(c).)‘ (People v. Williams (1997) 16 Cal.4th 153, 196 [66 Cal.Rptr.2d 123, 940 P.2d
710].) A reviewing court may overturn the trial court‘s exercise of discretion ‗ ― ‗only
upon a clear showing of abuse.‘ ‖ ‘ (People v. Beeler, supra, 9 Cal.4th at p. 979; see also
People v. Jones (1998) 17 Cal.4th 279, 308 . . . [appellate court reviews admission of
record under a hearsay exception ‗for an abuse of discretion‘].)‖ (People v. Martinez
(2000) 22 Cal.4th 106, 120.)
       Applying these principles to the facts at hand, we first consider whether the trial
court properly found that Barrera‘s testimony that she heard an unidentified man request
to ―Julio‖ that he ―hand me the gun,‖ was nonhearsay. An out-of-court statement is
hearsay only when it is ―offered to prove the truth of the matter stated.‖ (Evid. Code,
§ 1200.) However, ―[b]ecause a request, by itself, does not assert the truth of any fact, it
cannot be offered to prove the truth of the matter stated. (See People v. Mayfield [1997]
14 Cal.4th [668] 741 [pleas for help ‗were not hearsay because they were not admitted for
the truth of the matter stated‘]; People v. Bolden (1996) 44 Cal.App.4th 707, 714–715 [52
Cal.Rptr.2d 485] [request that defendant ‗not come around the house anymore‘ was not
hearsay because it was not offered for the truth of the matter stated]; People v. Reyes
(1976) 62 Cal.App.3d 53, 67 [132 Cal.Rptr. 848] [‗words of direction or authorization do
not constitute hearsay since they are not offered to prove the truth of any matter asserted
by such words‘].)‖ (People v. Jurado (2006) 38 Cal.4th 72, 117.) In the People‘s


                                              6
authority, People v. Jurado, the challenged statement deemed nonhearsay by the
reviewing court was, like here, an out-of-court declarant‘s request for a gun. (See id.)
       Appellant claims this case is distinguishable from People v. Jurado because ―the
challenged statement here was more than a mere request for a gun; in addition, it was an
[implied] assertion [of fact:] that ‗Julio‘ was present and able to provide a gun.‖ In so
claiming, appellant correctly notes that ― ‗evidence of an express statement of a declarant
is . . . hearsay evidence if such evidence is offered to prove—not the truth of the matter
that is stated in such statement expressly—but the truth of a matter that is stated in such
statement by implication.‘ [Citations.]‖ (People v. Garcia (2008) 168 Cal.App.4th 261,
289. See also People v. Morgan (2005) 125 Cal.App.4th 935, 943 [―While the ultimate
fact the statement is offered to prove is not the matter stated, the truth of the implied
statement is a necessary part of the inferential reasoning process‖].) However, even
assuming for the sake of argument that the unidentified person‘s request to Julio to pass
him the gun constitutes an implied assertion of the fact that appellant was present and
able to comply, we agree with the trial court that the statement would nonetheless come
within a statutory exception to the hearsay rule.
       Under the spontaneous statement exception, ―Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.‖ (Evid. Code, § 1240.) To ―render [statements] admissible [under the
spontaneous declaration exception] it is required that (1) there must be some occurrence
startling enough to produce this nervous excitement and render the utterance spontaneous
and unreflecting; (2) the utterance must have been before there has been time to contrive
and misrepresent, i.e., while the nervous excitement may be supposed still to dominate
and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the




                                              7
circumstance of the occurrence preceding it.‖3 (People v. Poggi (1988) 45 Cal.3d 306,
318.)
        Here, we find no basis for concluding the trial court abused its discretion in
finding that the unidentified declarant‘s statement, ―Julio, hand me the gun,‖ meets the
statutory requirements for the spontaneous statement exception. First, clearly the
statement relates to an event ―perceived by the declarant‖ (Evid. Code, § 1240), to wit,
his own dropping of a weapon. Second, the declarant made this statement immediately
after the witness, Barrera, heard gunshots outside her window, an event that was
undoubtedly exciting. Adding to this excitement, as the trial court noted, several
witnesses described a ―huge crowd of people‖ gathered together at the time the gunshots
were fired. Given these circumstances, the record adequately supports the trial court‘s
finding that the declarant spontaneously made his request to ―Julio‖ to ―hand me the gun‖
while still under the influence of the exciting events that he was observing. Accordingly,
the trial court‘s ruling will stand. (See also People v. Provencio (1989) 210 Cal.App.3d
290, 300 [holding that the hearsay statement, ―Hey, there‘s Angel [aka, the defendant],‖
yelled by an unidentified declarant at the crime scene came within the spontaneous
statement exception]; People v. Williams (1980) 102 Cal.App.3d 1018, 1033.)

II. Did The Trial Court Err By Denying Appellant’s Motion For Mistrial?
        Appellant next contends the trial court violated his constitutional rights to due
process and a fair trial by denying his motion for a mistrial and new trial based on
witness misconduct by the investigating officer, Inspector Armand Gordon. The parties
agree the relevant facts are as follows.


3
       ― ‗The foundation for this exception is that if the declarations are made under the
immediate influence of the occurrence to which they relate, they are deemed sufficiently
trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial
probability of trustworthiness is ―that in the stress of nervous excitement the reflective
faculties may be stilled and the utterance may become the unreflecting and sincere
expression of one‘s actual impressions and belief.‘ ‖ ‘ [Citation.]‖ (People v. Poggi,
supra, 45 Cal.3d at p. 318.) Whether the requirements of the spontaneous statement
exception are satisfied in any given case is, in general, largely a question of fact. (Ibid.)


                                              8
          Before trial, the trial court granted appellant‘s in limine motion to exclude all
gang-related evidence. In doing so, the trial court ordered counsel to give notice before
questioning any witness regarding ―anything related to a gang or [before] the word ‗gang‘
[is] used,‖ and to advise all witnesses regarding its order.
          At trial, the trial court directly questioned Inspector Gordon regarding his
interview of Yasenia De Leon, codefendant Fuentes‘s girlfriend, and regarding the basis
for his belief that De Leon knew something about the murder. Inspector Gordon replied:
―Well, 32 years experience in the San Francisco Police Department, I think we get a good
sense of whether people are telling us the truth or not telling us the truth. [¶] Also, we
find that significant others or wives usually know what is going on with their significant
other. And in this case being as it was gang-related we felt that they definitely know
what is going on because they are involved in all aspects of life with their significant
other.‖
          After hearing this response, the trial court ordered counsel to approach. Following
an off-the-record discussion, the trial court then instructed the jury to entirely disregard
―the last statement that Inspector Gordon made . . . the last question and the last answer,‖
explaining that, pursuant to a joint stipulation, ―this is [not] a gang-related case.‖ The
trial court then added that the jury was not to ―consider, discuss, even think that this is a
gang-related case.‖
          Out of the jury‘s presence, the trial court questioned Inspector Gordon whether he
was aware of the order barring any references to gangs and, if so, why he failed to
comply with it. Inspector Gordon acknowledged having been advised of the order and
claimed his improper testimony ―just came out,‖ although he ―didn‘t do it intentionally
. . . .‖ Defense counsel accepted Inspector Gordon‘s explanation but nonetheless moved
for mistrial. 4



4
        The trial court noted having ―some question‖ regarding Inspector Gordon‘s
sincerity because he appeared to have a ―smirk‖ on his face when testifying. However,
the trial court acknowledged that Inspector Gordon‘s demeanor could have stemmed

                                                 9
       The trial court denied appellant‘s mistrial motion, reasoning that any prejudice
from Inspector Gordon‘s testimony had been and would continue to be cured by:
(1) immediately striking the testimony; (2) immediately instructing the jury to disregard
Inspector Gordon‘s entire answer and to not consider it for any purpose, and that, per the
parties‘ stipulation, this was not a gang case;5 and (3) admonishing the jury again before
deliberations that they could only consider evidence that was received and not stricken.
Finally, the trial court added that Inspector Gordon was the next to the last witness to
testify and that, throughout the lengthy trial, no other witness had mentioned or referred
to gangs or gang evidence, circumstances further diminishing any prejudicial effect of his
testimony.
       ― ‗Generally [a] trial judge has discretion to grant or deny [a motion for a mistrial],
and will grant it on determining that a party‘s chances of receiving a fair trial have been
irreparably damaged.‘ (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 181, p. 208.)‖
(People v. Welch (1999) 20 Cal.4th 701, 749.) ― ‗[A] mistrial should be granted if the
court is apprised of prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions.‘ [Citation.]‖ (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.)
       On appeal, we review the trial court‘s ruling under the deferential abuse of
discretion standard. (People v. Maury (2003) 30 Cal.4th 342, 434.)
       Here, we conclude the trial court‘s denial of appellant‘s mistrial motion was
within its discretion. In particular, we accept the trial court‘s finding that its actions in
the wake of Inspector Gordon‘s improper testimony were sufficient to cure any resulting




from unease or embarrassment, and thus ultimately declined to find that his violation of
the order was anything other than careless or accidental.
5
       The trial court deliberately did not ―parse [Inspector Gordon‘s] answer as to the
answer relating only to gang testimony . . . so as not to highlight that. Instead, I struck
the entire answer to that question.‖


                                               10
prejudice, such that appellant‘s right to a fair trial was not irreparably damaged. (See
People v. Welch, supra, 20 Cal.4th at p. 749.)
       In reaching this conclusion, we distinguish appellant‘s authority on this point,
People v. Navarrete (2010) 181 Cal.App.4th 828, 836. There, the investigating officer,
when asked by the prosecutor why he failed to test DNA samples taken from the victim,
responded: ―Well, for several reasons, the first of which it‘s a court rule that the
defendant‘s statement is inadmissible. So I can‘t state the first reason.‖ (People v.
Navarrete, supra, 181 Cal.App.4th at p. 831.) Upon hearing this answer, the trial court
immediately excused the officer and admonished the jury to disregard his testimony. The
next day, it was revealed the officer stated before testifying that he was going to ―show
the court‖ because he was upset by its order suppressing the defendant‘s police statement.
(People v. Navarrete, supra, 181 Cal.App.4th at pp. 831-832.)
       Defense counsel moved for mistrial, which the trial court denied, explaining:
―[T]he word ‗statement‘ is not a confession literally understood by a lay person. It is not
a confession, and it was not in this case . . . .‖ The trial court also worked with counsel to
draft a curative instruction read to the jury before deliberations. (People v. Navarrete,
supra, 181 Cal.App.4th at pp. 832-833.). The appellate court, however, disagreed that
the prejudice had been cured. Reversing, the appellate court reasoned that, while ―a trial
court can almost always cure the prejudice of an improperly volunteered statement by
granting a motion to strike and charging the jury with an appropriate curative instruction
. . . even a single reference to an inadmissible confession can be the sort of ‗exceptional
circumstance‘ that supports granting a mistrial because a curative instruction cannot undo
the prejudice to the defendant.‖ (People v. Navarrete, supra, 181 Cal.App.4th at p. 836.)
       Our case is very different from People v. Navarrete, supra, 181 Cal.App.4th 828.
There, the officer referred to an inadmissible confession by the defendant and, as the
court noted, ―[a] jury‘s belief that a defendant may have confessed eviscerates the
presumption of innocence.‖ (Id. at p. 834.) Here, we have no such ―exceptional
circumstance‖ rendering the trial court‘s curative instructions powerless. Rather, we
have a lone reference to possible gang involvement at the end of a lengthy trial, at which


                                              11
many other witnesses testified in compliance with the order. As such, we stand by our
earlier affirmation of the trial court‘s finding that any prejudice from Inspector Gordon‘s
improper statement was cured by striking his testimony, appropriately charging the jury
to disregard it, and reminding the jury before deliberations this is not a gang-related case.

III. Did Defense Counsel Render Ineffective Legal Assistance?
       Appellant contends that ―defense counsel provided ineffective assistance by
failing to object to inadmissible and prejudicial testimony from the investigating officer
[Inspector Gordon] that [De Leon] was telling the truth when she incriminated appellant
even though she recanted this statement in her sworn testimony; and the trial court erred
by allowing police officer testimony referring to appellant as guilty.‖
       The People agree with appellant that police officers cannot express an opinion
before the jury regarding a defendant‘s guilt or the veracity of another witness‘s
testimony. (See People v. Melton (1988) 44 Cal.3d 713, 744 [―Lay opinion about the
veracity of particular statements by another is inadmissible‖].) The reason for this rule is
that such opinions ―are of no assistance to the trier of fact. To put it another way, the trier
of fact is as competent as the witness to weigh the evidence and draw a conclusion on the
issue of guilt.‖ (People v. Torres (1995) 33 Cal.App.4th 37, 47.)
       Here, the challenged statement is as follows. During testimony, the trial court
asked Inspector Gordon to characterize De Leon‘s ―demeanor during the evening while
she was at the Homicide Detail.‖ Inspector Gordon responded without objection: ―I
would say initially she was uncooperative –un—not cooperative. She was comfortable,
but she wasn‘t really telling us the truth. [¶] I would say that her demeanor after her
eating and meeting with Mr. Fuentes was a little bit different. She was a little bit more
forthcoming. She did tell us the truth.‖
       Having considered this statement, we conclude appellant‘s ineffective assistance
of counsel claim must fail. The governing standard provides that, to prevail on such a
claim, a defendant must prove more than a failure by counsel to object to inadmissible
evidence; he must show counsel‘s performance fell below a standard of reasonable
competence and that prejudice resulted. (People v. Anderson (2001) 25 Cal.4th 543,

                                              12
569.) To establish prejudice in this context, the defendant must show a reasonable
probability that, but for defense counsel‘s deficient performance, the result of the trial
would have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th 598, 665.)
       If ―a defendant has failed to show that the challenged actions of counsel were
prejudicial, a reviewing court may reject the claim on that ground without determining
whether counsel‘s performance was deficient.‖ (People v. Kipp (1998) 18 Cal.4th
349, 366.) The reviewing court may likewise reject the claim ―[i]f the record on appeal
fails to show why counsel acted or failed to act in the instance asserted to be ineffective,
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation, the claim must be rejected on appeal.‖
(People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Under the latter rule, the defendant
must overcome a strong presumption that counsel‘s conduct was sound trial strategy or
otherwise within the wide range of reasonable professional assistance. (People v. Burnett
(1999) 71 Cal.App.4th 151, 180; People v. Bunyard (1988) 45 Cal.3d 1189, 1215.)
       In this case, we conclude defense counsel did not provide ineffective assistance to
appellant. As the California Supreme Court has observed, ―competent counsel may often
choose to forego even a valid objection.‖ (People v. Riel (2000) 22 Cal.4th 1153, 1197.)
In most circumstances, counsel‘s decision to do so is tactical rather than reflective of
competence. (People v. Jackson (1980) 28 Cal.3d 264, 292.) Reviewing courts, sitting
far removed from the actual courtroom, are generally quite ill-equipped to distinguish
between an attorney‘s tactical reasoning and incompetence. Such is the case here.
Perhaps defense counsel failed to object to Inspector Gordon‘s testimony for the
satisfactory reason that De Leon‘s drastically changed testimony was, by itself, sufficient
to undercut her credibility. Perhaps not. Either way, on this record, there simply is
insufficient evidence of professional incompetence to permit appellant to overcome the
―strong presumption‖ that his counsel‘s conduct was ―sound trial strategy‖ or otherwise
―within the wide range of reasonable professional assistance.‖ (People v. Burnett, supra,
71 Cal.App.4th at p. 180; People v. Bunyard, supra, 45 Cal.3d at p. 1215.)



                                             13
       Moreover, even assuming Inspector Gordon‘s testimony regarding the veracity of
De Leon‘s statements during her police interview was improper, we conclude appellant
has failed to prove the testimony was prejudicial to his case. As the People note, it is
very clear from De Leon‘s own statements – which changed dramatically from vague
denials of any knowledge of the murder or appellant to very detailed admissions
regarding appellant‘s confession of the murder to Fuentes in El Salvador – that she failed
to tell law enforcement the truth at some point during her interview. Under these
circumstances, we cannot conclude there is a reasonable probability that appellant would
have prevailed at trial had defense counsel objected to Inspector Gordon‘s statement that
De Leon ―wasn‘t really telling us the truth‖ during part of the interview.6 (People v.
Seaton, supra, 26 Cal.4th at p. 665.)
       Accordingly, we reject appellant‘s claim of ineffective assistance of counsel.

IV.    Did The Trial Court Err By Allowing Testimony From A Police Officer
        Regarding Appellant’s Guilt?
       As noted above, appellant makes an additional argument that testimony from
Inspector Joseph Toomey ―that he sometimes lied to suspects, that he lied to appellant,
and that he only lied to the guilty and not to the innocent, was tantamount to testimony
that appellant was guilty.‖ As such, appellant reasons, the trial court erred by overruling
his objection to it. We disagree.
       The challenged testimony was given by Inspector Toomey in response to
questioning regarding his post-arrest interview of appellant on June 27, 2008.
Specifically, Inspector Toomey was asked to explain why in the interview he told


6
       Appellant objects only to Inspector Gordon‘s testimony regarding De Leon‘s
veracity. The jury also heard a transcript of De Leon‘s interview, the admissibility of
which appellant failed to challenge below or in his opening brief. This transcript reflects
her drastically changing version of events. As such, counsel‘s failure to object to
Inspector Gordon‘s testimony could hardly be deemed prejudicial when the same
information was admitted without challenge in the form of the transcript. Moreover,
appellant‘s belated attempt to raise such challenge in his reply fails on waiver grounds.
(Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1372, fn. 11.)


                                             14
appellant that he believed appellant shot the victim in self-defense.7 As appellant notes,
Inspector Toomey explained that he sometimes lies to suspects to get them to tell the
truth. He also explained, however, that he would not lie to an innocent person to get
them to tell an untruth.
       We find no error in the trial court‘s decision to admit this testimony. First, we
note that the transcript of appellant‘s interview, which includes Inspector Toomey‘s
statement to appellant that he believed appellant‘s assertions of self defense, was
admitted into evidence, a ruling not challenged on appeal. As such, we conclude it was
proper to thereafter admit Inspector Toomey‘s testimony to explain to the jury the
techniques he utilized during this interview to encourage appellant to tell the truth –
including lying to appellant that his assertions were deemed truthful, a police technique

7
       The challenged testimony, in its entirety, is as follows:
―Q. During the entire excerpt you were asking the defendant about whether or not he
was shooting in self-defense and there are times when you are saying ‗I believe you.‘ Did
you actually believe that he was shooting in self-defense?
―COUNSEL: Objection your Honor, 352.
―COURT: Overruled. You may answer.
―A: I didn‘t believe him at all.
―Q. Okay. So when you said that, that wasn‘t true.
―A: When I said that I believed him – that statement was not true.
―Q: Okay. So, in other words, you were lying to the defendant when you said that you
believed him.
―A: Yes.
―Q. Now, why did you lie during this interview?
―A. Well, when you – at times when you are interviewing people that have done
shootings or violence, sometimes you given them an out so they can minimize their
involvement. The whole thing is to get them to tell you what happened. [¶] . . . [¶]
―Q. Inspector Toomey, sometimes you tell us you lie to suspects?
―A. That is correct.
―Q. Are there limits of the type of lies you are going to tell during interviews?
―A. Yes. You would never lie to someone to have an innocent person tell you an
untruth.‖ (Emphasis added.)


                                             15
appropriate under the circumstances. (See People v. Maury, supra, 30 Cal.4th at p. 411
[― ‗courts have prohibited only those psychological ploys which, under all the
circumstances, are so coercive that they tend to produce a statement that is both
involuntary and unreliable‘ ‖]; People v. Arguello (1967) 65 Cal.2d 768, 775 [―deception
employed in getting defendant to tie the knot did not render the evidence inadmissible‖].)
The jury, we conclude, could reasonably be expected to understand that Inspector
Toomey‘s testimony was offered to explain his interrogation technique rather than to
opine on appellant‘s guilt. Under these circumstances, we reject appellant‘s claim that
Inspector Toomey‘s testimony was improper.

V.     Did The Prosecutor Commit Prejudicial Misconduct By Referencing
        Appellant’s Silence?
       Lastly, appellant contends the prosecutor‘s references to his silence during the
police interview violated his constitutional rights against self-incrimination under the
Fifth and Fourteenth Amendments. Appellant further contends that, to the extent his
counsel failed to object to these references, he received ineffective legal assistance. The
following facts are relevant to these contentions.
       After being arrested, appellant was advised of – and waived – his Miranda rights.
Following his waiver, appellant was interviewed by Inspector Toomey. During this
interview, appellant placed himself at the scene of the crime, but denied, among other
things, knowing the victim, carrying a gun, or committing the murder. At some point,
Inspector Toomey suggested appellant may have been acting in self defense, in response
to which appellant acknowledged ―[a] lot of people were coming and I was scared.‖
Inspector Toomey then advised appellant that eyewitnesses saw him with a gun and
asked whether he shot the victim because he was scared. Appellant replied: ―I can‘t say
anything else because I don‘t have anything else to say.‖ And when pressed further on
the fact that witnesses saw him with a gun, appellant added: ―Well, I don‘t know if you
believe it or not, but that‘s the only side of the story I‘ve got . . . .‖
       At trial, the trial court barred the prosecution from relying on appellant‘s failure to
―protest as much as an innocent person would‖ during this interview as evidence of guilt,


                                                16
on the ground that the probative value of such evidence was substantially outweighed by
its potential prejudice. Before closing arguments, the trial court clarified the prosecutor
could argue ―the evasiveness and the contradictory nature of [appellant‘s] answers‖ as
evidence of consciousness of guilt, but could not argue that defendant should have
expressed his innocence when interviewed by Inspector Toomey. Thereafter, the
prosecutor made the following statements in closing arguments that appellant now claims
violated his constitutional rights:
        ―[H]e‘s acting like he‘s guilty once he‘s arrested. When Inspector Toomey
           interviews him, he sounds more like a guilty person that an innocent person.‖
        ―Inspector Toomey goes in the next day [after appellant is brought to San
           Francisco] to talk to him about the murder. So what does the defendant do
           then? [¶] . . . [¶] . . . What would an innocent person do who‘s accused of
           murder but didn‘t do [it] [¶] . . . you‘re going to make sure [] they understand
           they‘ve made a big mistake here. I‘m not the murderer, this is all a big
           misunderstanding. I didn‘t commit[] a murder, right, that‘s how an innocent
           person is going to react.‖
        ―Is [appellant] acting like an innocent man? . . . [¶] . . . Where‘s the confusion,
           where‘s the shock, where‘s the anger, where‘s the trying to set them straight?‖
        ―Why isn‘t [appellant] asking these questions when he is confronted by the
           police? [¶] . . . [If he is innocent] [t]hese things are all misunderstandings.
           Why isn‘t he asking these questions? . . . [B]ecause . . . he knows that he‘s
           guilty . . . That‘s why he‘s not asking these questions.‖
        ―An innocent man is going to do what it takes to correct the problem, to
           correct the misunderstanding. An innocent person isn‘t just going to say . . .
           I‘m not even going to try to explain this to you anymore. He didn‘t ask the
           questions and he didn‘t offer any explanations. [¶] . . . That is not how an
           innocent man, under these circumstances, would react.‖




                                             17
        ―What innocent person [clams up when asked about a murder he didn‘t
           commit?]‖
       Following these closing arguments, the jury was instructed, among other things,
that appellant‘s failure to testify could not be used against him as evidence of guilt, that
he had an absolute constitutional right not to testify, and that his failure to testify should
not in any way influence their decision. (CALCRIM No. 355.) The jury was also given
the following instruction on consciousness of guilt: ―If the defendant made a false or
misleading statement relating to the charged crime, knowing the statement was false or
intending to mislead, that conduct may show he was aware of his guilt. . . . [¶] If you
conclude the defendant made the statement, it is up to you to decide its meaning and
importance. However, evidence that the defendant made such a statement cannot prove
guilt by itself.‖ (CALCRIM No. 362.) Finally, the jury was instructed that counsel‘s
remarks are not evidence. (CALCRIM No. 222.)
       In considering under these circumstances whether appellant‘s rights were violated,
we begin with the Fifth Amendment, which ― states that no person ‗shall be compelled in
any criminal case to be a witness against himself.‘ (U.S. Const., 5th Amend.; see also
Cal. Const., art. I, § 15.) In Griffin [v. California], the Supreme Court recognized this
guarantee would have little meaning if the prosecution were allowed to disparage a
defendant‘s decision not to testify. Describing such disparagement as ‗a remnant of the
inquisitorial system of justice‘ (Griffin v. California [(1965)] 380 U.S. [609,] 614 [85
S.Ct. at p. 1232]), the court ruled the Fifth Amendment forbids ‗comment by the
prosecution on the accused‘s silence.‘ (Id. at p. 615 [85 S.Ct. at p. 1233].)‖ (People v.
Guzman (2000) 80 Cal.App.4th 1282, 1287.)
       ―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 in his defense.
It is well established, however, that the rule prohibiting comment on defendant‘s silence
does not extend to comments on the state of the evidence, or on the failure of the defense
to introduce material evidence or to call logical witnesses. [Citations.]‖ (People v.
Medina (1995) 11 Cal.4th 694, 755.)


                                              18
       Our Supreme Court has also made clear that ― ‗[t]he prosecutor cannot use the
defendant‘s invocation of his right to remain silent or refusal to answer questions . . . to
impeach his credibility. [Citations.] [¶] To establish a violation of due process under
[Doyle v.Ohio (1976) 426 U.S. 610], the defendant must show that the prosecution
inappropriately used his postarrest silence for impeachment purposes and the trial court
permitted the prosecution to engage in such inquiry or argument.‘ [Citation.] ‗To assess
whether these questions constitute Doyle error, we ask whether the prosecutor referred to
the defendant‘s post-arrest silence so that the jury would draw ―inferences of guilt from
[the] defendant‘s decision to remain silent after . . . arrest.‖ [Citation.]‘ [Citation.]‖
(People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555-1556.)
       Here, appellant claims the prosecutor‘s arguments constitute error under both
Griffin and Doyle. In addition, appellant claims the prosecutor‘s arguments violated the
trial court‘s order barring any argument that his failure to express innocence during the
police interview proves his guilt. We address each claim in turn.
       First, as explained above, Griffin error is committed where ―the prosecutor . . .
comments, either directly or indirectly, upon defendant‘s failure to testify in his defense.‖
(People v. Medina, supra, 11 Cal.4th at p. 755.) Here, appellant challenges the
prosecutor‘s comments on certain statements he made or should have made during the
police interview shortly after his arrest and receipt of warnings and waiver of rights under
Miranda rather than comments directly or indirectly on his failure to testify at trial.
Accordingly, there is no violation of Griffin on this record.
       Turning to appellant‘s claim of Doyle error, the California Supreme Court has
explained that ―Doyle holds that the prosecution may not, consistent with due process and
fundamental fairness, use postarrest silence following Miranda warnings to impeach a
defendant‘s testimony at trial. (Doyle, supra, 426 U.S. at pp. 617–618.)‖ (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 118.) Here, however, the prosecutor did not
use appellant‘s silence to impeach his credibility at trial, because appellant did not testify
at trial. Moreover, appellant waived his Miranda rights and elected to respond to police
questioning. Doyle, to the contrary, is ―founded on the notion that it is fundamentally


                                               19
unfair to use a defendant‘s post-Miranda silence to impeach his trial testimony in view of
the implicit assurance contained in the Miranda warnings that exercise of the right of
silence will not be penalized.‖ (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520-
1521 [emphasis added].) While it is true appellant ultimately told Inspector Toomey that
he ―d[id]n‘t have anything else to say‖ because ―that‘s the only side of the story [he‘s]
got‖, it could reasonably be found on this record that appellant‘s comments were
consistent with his initial waiver rather than a belated invocation of his Fifth Amendment
right to silence. For example, his comments could fairly be read as communicating to
police his assertion that the explanation he already gave was truthful and that he was
sticking to it. ―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.‖ (People v. Hurd (1998)
62 Cal.App.4th 1084, 1093. See also People v. Preston (1973) 9 Cal.3d 308, 315 [―The
Fifth Amendment privilege against self-incrimination does not on its face apply to
commentary on defendant‘s nonassertive conduct prior to trial, absent a showing that
such conduct was in assertion of the privilege to remain silent‖]; People v. Hurd, supra,
62 Cal.App.4th at pp. 1090-1091 [where defendant never indicated a desire to stop the
police interrogation, his refusals to demonstrate how the shooting occurred and to take a
polygraph test were insufficient to invoke his general right to silence]; cf. United States v.
Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1034 [―a subsequent waiver of Miranda
rights does not render admissible comment on the defendant‘s pre-waiver silence‖].)
       Lastly, we turn to appellant‘s more general claim that the prosecutor‘s arguments
constituted prejudicial misconduct because they violated a court order barring comment
on his silence during the police interview.
       While appellant is correct that the trial court barred any comment or argument by
the prosecutor on his silence, including his failure to announce his innocence, during the
police interview, the trial court did permit the prosecutor to argue ―the evasiveness and
the contradictory nature of [appellant‘s] answers‖ as evidence of consciousness of guilt.



                                              20
Appellant did not object to this ruling below and does not purport to challenge it on
appeal.8
       Under these circumstances, we conclude the prosecutor‘s arguments, which were
mostly directed at statements appellant actually made to Inspector Toomey rather than his
silence, generally came within the trial court‘s ruling. Admittedly, in some instances, the
prosecutor may have crossed the line of propriety drawn by the court‘s order – for
example, when arguing that an innocent person would not, like appellant, have ―clammed
up‖ during the interview. However, prosecutors are afforded wide latitude during closing
arguments to discuss and draw inferences from evidence presented at trial (People v.
Thornton (2007) 41 Cal.4th 391, 454), and their misconduct requires reversal only where
―deceptive or reprehensible methods‖ are employed to attempt to persuade either the
court or jury. (People v. Strickland (1974) 11 Cal.3d 946, 955.) In this case, we do not
believe this high standard has been met. Rather, we conclude the prosecutor, in all but a
few instances, fairly commented on the evasive and contradictory nature of appellant‘s
statements to Inspector Toomey, which were admitted into evidence without challenge.
Consistent with the trial court‘s order, the very nature of these statements could
reasonably support an inference that appellant displayed a consciousness of guilt. This is
particularly true in light of other consciousness-of-guilt evidence, including appellant‘s
responses to Inspector Toomey when asked whether he had a gun that there was ―a lot of
confusion‖ and ―[a] lot of people were coming and I was scared‖ (rather than denying
that he had a gun), his fleeing to Virginia and his use of various forms of identification in
other people‘s names while living in Virginia.9


8
       Consistent with this order, the jury was instructed that a false or misleading
statement by appellant could show his awareness of guilt but could not alone prove guilt
(CALCRIM No. 362). The jury was also instructed that appellant‘s silence could not be
used against him as evidence of guilt (CALCRIM No. 355).
9
       Our holding in this regard should not be interpreted as condoning the prosecutor‘s
violation of the trial court‘s order. Rather, as stated above, we simply conclude the
prosecutor‘s conduct does not rise to the level of deception or reprehensibility required
under the governing standard. (People v. Strickland, supra, 11 Cal.3d at p. 955.)


                                             21
       Thus, in summary, under the totality of these circumstances, we conclude the
prosecutor‘s comments on statements appellant made or should have made to police after
waiving his Miranda rights and agreeing to the interview did not constitute deceptive or
reprehensible methods employed to persuade the court or jury, and did not run afoul of
the U.S. Supreme Court holdings in Doyle or Griffin. Accordingly, we find no basis
under the Fifth Amendment for reversing the judgment of conviction.10

VI. Was There Cumulative Error?
       Appellant‘s final argument is that the cumulative effect of multiple errors rendered
his trial fundamentally unfair. We disagree. As we have seen, few errors, if any, were
committed, and no error affected the verdict. As such, the cumulative error doctrine
provides no ground for reversal in this case. (People v. Marshall (1990) 50 Cal.3d 907,
945 [―defendant is entitled to a fair trial but not a perfect one‖].)

                                       DISPOSITION
       The judgment is affirmed.



                                                    _________________________
                                                    Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.



10
      Because we have disposed of appellant‘s argument on the merits, we need not
address his secondary argument that his counsel‘s failure to object to the prosecutor‘s
arguments amounted to ineffective assistance of counsel.


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