Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF145875, Roger A. Luebs, Judge.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robin Derman, Steve Oetting and Daniel B. Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury convicted defendant Ernest Eric Ellis of possession of stolen property (count 1-Pen. Code § 496, subd. (a)) and found true allegations that he had suffered two prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to the low term of 16 months on count 1 and struck the prior prison term enhancements. On appeal defendant raises five issues: (1) substantial evidence fails to support his conviction on count 1; (2) the trial court erred in admitting evidence of defendant’s statements to police under Miranda; (3) the trial court erred in admitting defendant’s statements to police because they were involuntary coerced by improper inducement; (4) the trial court committed reversible error by instructing the jury that it could find defendant guilty by a lower burden than constitutionally required; and (5) defense counsel provided constitutionally ineffective assistance of counsel (IAC). We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
FACTUAL AND PROCEDURAL HISTORY
On July 22, 2008, Verizon’s repair department received a number of phone calls complaining of an outage of phone service. Brett McCullough, the local manager for Verizon in Perris, responded to an area in Homeland where the cable spanning between three telephone poles was missing. He called the police. Verizon replaced the original wire with preexisting, buried wire, which they spliced to the main line and hung between the poles in order to reestablish phone service.
On July 23, 2008, after the temporary wire had been strung, McCullough discovered another theft in the same area. He observed that more cable was missing, including pieces of the temporary replacement wire. McCullough went to a nearby recycling center, where he found the stolen cable. He was able to identify the cable by its size, gauge, and footage markers. After he identified the stolen cable, he called the Riverside County Sheriff’s Department.
Sheriff’s Detective Clinton Gilbert responded to the call. McCullough walked Detective Gilbert over to the storage bins at the recycling center, where they located the stolen wire. Detective Gilbert testified that he too matched the wire obtained at the recycling center to the missing wire by noting the footage markers. The wire appeared to have been cut with a hatchet or axe. A roofer’s hammer with an attached hatchet was found at the scene where the wire had been stolen.
An employee working at the recycling center, Souta Chanthavong, testified that on July 24, 2008, defendant brought in wire to be recycled. Defendant had been at the recycling center on more than 20 previous occasions. Detective Gilbert took the wire into custody.
Detective Gilbert arrested defendant; after he gave defendant his Miranda warnings, defendant agreed to speak with him. Defendant admitted being the individual who recycled the wire. Defendant initially informed Detective Gilbert that he obtained the wire from a construction site; however, Detective Gilbert informed him that the wire at that location was a different type than the stolen wire. Defendant then informed Detective Gilbert he had obtained the wire from his scrapping partner “Jimmy.” Defendant initially informed Detective Gilbert that he did not know the wire was stolen; however, when specifically asked if he knew the wire had been stolen, defendant responded “‘Yes, ’ it did cross his mind.”
Defendant told Detective Gilbert that the type of wire they recovered from the recycling center was typical of the objects Jimmy recycled. Jimmy also “usually recycles heavy things, big things” such as “water valves and... fire h[ydrants].” Defendant informed Detective Gilbert that he did not steal the wire and that he did not know where Jimmy obtained the wire. Defendant said he did not know who stole the wire. Defendant reported that he obtained over $200 from the recycling center for the wire, all of which he gave to Jimmy. Defendant had recycled material for Jimmy on previous occasions; Jimmy required defendant’s help because he did not have a vehicle with which to transport the items he wished to recycle.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends that insufficient evidence supported his conviction in count 1. In particular, defendant avers that substantial evidence failed to support the elements of the offense that defendant knew the wire was stolen and that the stolen wire was the same wire that defendant had brought to the recycling center.
This court reviews the entire record in the light most favorable to the prosecution in order to determine whether it contains substantial evidence, that is evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Chatman (2006) 38 Cal.4th 344, 389.) “‘We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We cannot set aside a judgment on grounds of insufficient evidence unless it clearly appears “‘that on no hypothesis whatever is there sufficient substantial evidence to support the verdict....’” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) “Under section 496, subdivision (a), the elements of receiving stolen property are (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property. [Citation.]” (People v. King (2000) 81 Cal.App.4th 472, 476, fn. omitted.)
Here, defendant admitted to Detective Gilbert that he knew the wire was stolen, or, at the very least, the fact that it was stolen had crossed his mind. The fact that defendant recycled the wire shortly after it was stolen also strongly implies knowledge upon defendant’s part that the wire was stolen. Likewise, defendant was a frequent customer at the recycling center recycling materials for “Jimmy.” Such materials may have included valves and fire hydrants-objects that would strongly suggest that Jimmy typically engaged in the recycling of stolen materials because common sense would dictate that no private individual could have legitimate possession of such objects, particularly fire hydrants. Furthermore, defendant changed stories about where he obtained the wire. Initially defendant indicated he found the wire at a construction area, but later told Detective Gilbert he obtained it from “Jimmy.” Defendant’s wavering recount of the location of his “discovery” strongly suggests a consciousness of guilt, i.e., that defendant knew the wire was stolen. Thus, in the context of all the aforementioned indicia, substantial evidence supported the jury’s inherent finding that defendant knew the wire was stolen.
At oral argument defendant focused his argument on alleged mistakes of fact in our tentative opinion in order to preclude the necessity of filing a petition for rehearing. We note that we have viewed the record in accordance with the usual rules of appellate review, i.e., in favor of the judgment. (People v. Glazier (2010) 186 Cal.App.4th 1151, 1154, citing People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Thus, we do not select facts favorable to the defendant or indulge in inferences solely benefiting defendant. As the People suggested, the record cannot be looked at as isolated bits of testimony, but must be looked at holistically with reasonable inferences drawn in favor of the judgment. Nevertheless, we shall address each of the alleged mistakes of fact identified by defendant.
Defendant contended at oral argument that the testimony only established that “Jimmy” recycled “heavy things, big things” such as “water valves and... fire h[ydrants]” himself, not that defendant recycled them for “Jimmy.” However, the question as to what items Jimmy recycled was asked directly after those establishing that defendant recycled materials on behalf of “Jimmy.” Moreover, Chanthavong testified that he had seen defendant at the recycling center “more than 20 times.” Thus, a rational inference of the testimony as a whole suggests that defendant did recycle such items for “Jimmy.” At a minimum, the testimony established that defendant knew that the type of items “Jimmy” obtained for recycling were often, if not always, ill-gotten. Defendant further contended that just because “Jimmy” often recycled items that were stolen or were strongly suggestive in-and-of themselves of being stolen does not logically equate to a determination that every item “Jimmy” recycled, i.e. the wire at issue here, was stolen. Nonetheless, the testimony that “Jimmy” often recycled items of dubious legality combined with defendant’s concession that he knew or suspected that the wire was stolen is sufficient evidence to support his conviction.
With respect to defendant’s contention that insufficient evidence supported the jury’s inherent finding that the stolen wire was the wire recycled by defendant, we respectfully disagree. McCullough testified that after the second theft he went to the local recycling center. He was immediately able to identify the stolen cables by their size, gauge, and footage markers. Detective Gilbert likewise testified they were able to identify the cables at the recycling center as those stolen from the telephone poles. Neither McCullough nor Detective Gilbert testified that there was any other wire in the particular bin in which they found the stolen cables. Chanthavong, who was familiar with defendant, testified that defendant brought in wire on the day in question, to be recycled. This is sufficient evidence that the stolen cable found at the recycling center was brought in by defendant.
Detective Gilbert testified that McCullough walked him “over to one of the large metal bins that they use for recycling, which was full of telecommunication wire.” While one could certainly speculate that this meant more than one cable was contained in the box, we note that the testimonies of Detective Gilbert and McCullough indicate that the stolen cables were “three spans” in length, which is hundreds of feet long. Thus, it would be reasonable to determine that the stolen cables themselves took up the entirety of the storage bins. At oral argument, defendant contended such a determination conflicts with Gilbert’s testimony that a picture of the wire dumped out of the storage bin showed “different types of wire within the photo.” However, the testimony at trial unequivocally established that after the wire was initially stolen, it was replaced by a different type of wire. Thus, one would expect the storage bin containing the stolen cables to contain different types of wire, the two types stolen from the site.
Defendant maintains that insufficient evidence supports the determination that the wire defendant brought into the recycling center was the stolen wire found by McCullough and Detective Gilbert. In other words, defendant argues that the stolen wire could have been brought in by someone else; that nothing connected the stolen wire with defendant; and that defendant could have brought in other, licit wire for recycling. Indeed, Chanthavong testified that after wire is received from a customer it is separated and thrown into a bin with other wire. However, he did not explicitly testify that when defendant brought in the cables, there was any other wire in the particular bins into which he placed the wire brought by defendant. Likewise, when asked if there was any way to determine who turned in which particular wire, Chanthavong responded, “Some wires... look different, but the majority of the wire, you can tell... that person brought that in, because it’s just particular wire that you can always tell who brought it in, because we deal with not that much customers, like regulars-we call regulars that come in all the time.” He furthermore testified that he can identify who brought in which items by memory. Implicit in Chanthavong’s testimony is that the stolen wire found by McCullough and Detective Gilbert was the wire brought in by defendant. Thus, substantial evidence supports the jury’s determination that defendant brought in the stolen wire for recycling.
At oral argument, defendant maintained that Chanthavong’s testimony actually established the opposite, i.e., that defendant was probably not the one who brought in the stolen wire. We simply do not find anything at the cited transcript page to support defendant’s contention. Chanthavong testified that he had seen defendant at the recycling center “more than 20 times, ” that he had seen the same type of wire as the stolen wire recycled on previous occasions, and that defendant “probably” was not the only individual who had ever recycled such wire, though he was not sure. This strongly supports defendant’s conviction because it establishes that defendant was the only individual who Chanthavong was sure had recycled such wire and was the only one to do so on the day in question.
B. MIRANDA
Defendant contends that his response to Detective Gilbert’s question of whether defendant wished to speak with him after having received Miranda warnings was sufficiently ambiguous such that Detective Gilbert, at a minimum, should have clarified defendant’s desire to speak with him. Thus, defendant maintains that the People failed to establish an unambiguous, voluntary waiver of defendant’s rights such that his statements made thereafter should have been excluded from evidence. We disagree.
On May 7, 2009, prior to trial, defense counsel filed a trial brief and motion in limine seeking to exclude “any statements made by Defendant to any police officers or any other law enforcement prior to a hearing” on the issue. The People’s trial brief sought explicit permission to introduce such evidence at trial, contending that defendant had been properly Mirandized and voluntary chose to waive his rights, and to speak with Detective Gilbert. Detective Gilbert testified at an Evidence Code section 402, hearing, that once he arrived at the station with defendant, Detective Gilbert read defendant his rights: “[I] [a]sked him if he understood the rights I just explained to him. He said, yes. I asked if he wanted to talk to me in regards to the stolen property, and he said he would talk to me.” Defense counsel indicated that she had a transcript of the interrogation which she wished to move into evidence for consideration on the issue. The court indicated it would listen to the recording, but not consider the transcript. However, when the recording did not appear to work, the People stipulated to the court’s perusal of the transcript “for purposes of this hearing only.”
The People explicitly noted that review of only the first two pages of the 22-page transcript would be all that would be required to resolve the issue. The court stated “All right. I’m looking at 1 and 2. All right. I’ve read it.” Defense counsel called the court’s attention to the following colloquy between defendant and Detective Gilbert:
“[Detective Gilbert]:... Do you know what I mean by Miranda Rights?
“[Defendant]: Yeah.
“[Detective Gilbert]: Okay. Do you know what your Miranda Rights are?
“[Defendant]: Mm-hmmm.
“[Detective Gilbert]: Pretty Much?
“[Defendant]: Pretty Much.
“[Detective Gilbert]: Okay. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to an attorney and have an attorney present with you while you are being questioned. If you cannot afford to hire an attorney, one will be appointed before questioning, if you wish one. Do you understand each of those rights I’ve just explained to you?
“[Defendant]: Yeah.
“[Detective Gilbert]: And havin’ those rights in mind, do you want to give me a statement? Do you want to go along with this interview so we can figure out where this wire came from?
“[Defendant]: Sure. I mean....”
“[Detective Gilbert]: Okay. Do you remember this wire?”
Defense counsel then requested the Court make a ruling on whether defendant’s response was an adequate waiver of rights: “It is the defense’s position that is not an explicit waiver.” Defendant contended that he had been interrupted in his ostensible waiver by Detective Gilbert’s subsequent question; that his subsequent statement “I mean...” was intended to qualify, or negate, his waiver. The People indicated that in listening to the recording, there was a noticeable gap in time between defendant’s response of “Sure” and his subsequent statement “I mean....” The court ruled that “based on the evidence before me I do not find a Miranda violation. I find by the preponderance of the evidence that his constitutional rights were respected. And the statements he made after waiving his Miranda rights will be admitted as statements of the party opponent.”
“No person... shall be compelled in any criminal case to be a witness against himself....” (U.S. Const., 5th Amend.) “[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege....” (Miranda, supra, 384 U.S. at pp. 478-479.) These procedural safeguards include a police advisement that the individual has the right to remain silent; that anything he says may be used against him in a court of law; that he has the right to the presence of an attorney; and that if he cannot afford one, one will be appointed to him free of charge. (Id. at p. 479.)
When considering a claim that a statement was inadmissible at trial because it was obtained in violation of the Miranda rights, the scope of review is well established. “‘We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.]’” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) “‘“[W]hen two or more inferences can reasonably be deduced from the facts, ” either deduction will be supported by substantial evidence, and “a reviewing court is without power to substitute its deductions for those of the trial court.” [Citation.]’ [Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 527.) The reviewing court then independently determines whether the challenged statement was obtained in violation of Miranda. (People v. Farnam (2002) 28 Cal.4th 107, 178.)
We agree with the trial court that defendant’s response to Detective Gilbert’s query, whether defendant wished to continue speaking with Detective Gilbert after acknowledging his rights, was sufficiently unambiguous to permit admission at trial of his subsequent statements. Defendant replied “Sure.” “Sure” means “marked by or given to feelings of confident certainty, ” “characterized by a lack of wavering or hesitation, ” “admitting of no doubt: indisputable.” Thus, defendant’s response indicated no degree of uncertainty as to whether he wished to continue speaking with Detective Gilbert.
Http://www.merriam-webster.com/dictionary/sure, as of January 21, 2010.
Defendant contends that his subsequent statement, “I mean..., ” was intended as a qualification of his original agreement to continue speaking. He asserts, therefore, that Detective Gilbert was required to clarify this ambiguity before continuing the interrogation. We note that it is pure speculation that defendant’s latter statement was intended as a qualification of his desire to continue the interview. As the People note, it is equally possible that defendant would have stated “‘I mean I want to tell my story.‘” Moreover, there is no indication that the latter statement was at all connected to the first, i.e., defendant could have intended to say something entirely unrelated to his desire to continue the interview. Contrary to defendant’s contention, the susceptibility of defendant’s latter statement to numerous speculative responses does not render it ambiguous (capable of several distinct meanings); rather, it renders a discernment of its intended meaning complete conjecture (capable of infinite potential meanings). Indeed, perhaps defendant merely trailed off in his latter statement and did not intend to complete any statement at all. “It is settled that... after a knowing and voluntary waiver, interrogation may proceed ‘until and unless the suspect clearly [invokes his rights].’ [Citation.] Indeed, officers may, but are not required to, seek clarification of ambiguous responses before continuing substantive interrogation. [Citation.]” (People v. Williams (2010) 49 Cal.4th 405, 427.) Here, there is no indication that Detective Gilbert even heard defendant’s subsequent statement. Even if he did, defendant’s statement was not a clear invocation of his rights but an uncompleted statement to which meaning can only be ascribed by pure supposition. Thus, defendant did not clearly attempt to invoke his rights after having unambiguously waived them. Therefore, Detective Gilbert was not required to seek clarification of defendant’s subsequent remark.
At oral argument, defendant maintained that the fact that the latter phrase was adjacent in the transcript to his initial reply is a strong indication that the statements were related. Maybe so, but this is also speculation. We are required to and do indulge in inferences from the record favorable to the judgment. Thus, we reject defendant’s inference.
C. IMPROPER INDUCEMENT
Defendant contends the inculpatory statements he made during the interrogation were the result of improper inducement by Detective Gilbert. In particular, defendant alleges that his statements were the result of promises made by Detective Gilbert to afford him leniency, if not complete immunity from prosecution, if defendant cooperated. We find that defendant forfeited the issue by failing to raise it below. Moreover, contrary to defendant’s contention, much of the “evidence” defendant utilizes to support his argument was not admitted below. Finally, to the extent defendant adequately addressed the issue below, we hold the merits of his contention wanting.
As discussed above, defendant filed a motion in limine seeking to exclude “any statements made by Defendant to any police officer or any other law enforcement prior to a hearing concerning the admissibility of those statements pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and the due process clauses of the United States and California Constitutions.” At the hearing on the motion, Detective Gilbert testified that after he handcuffed defendant, but before he Mirandized defendant at the police station, defendant spontaneously told Detective Gilbert he did not steal the wire. Detective Gilbert then told him “if somebody else was responsible for stealing that wire, I would much rather have that person be responsible than somebody that was just recycling it for somebody else.” “I told him if he could tell me the information on who stole the wire, where they stole it, that, no, he wouldn’t be charged with a crime.”
After defendant’s waiver of his Miranda rights, Detective Gilbert informed defendant, “If I get somethin’ outta this, then I’ll go to bat with you with the DA. The DA will listen to me, alright?” Defendant was later informed, “You need to be completely one hundred percent honest here, so you don’t fuck yourself over, okay. Because if [Jimmy is] doin’ stupid shit, he’s the one that needs to go down for it, and not you.”
1. FORFEITURE
Failure to raise an argument below regarding the involuntariness of a defendant’s statements forfeits the right to do so on appeal. (People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;see also People v. Santana (1982) 134 Cal.App.3d 773, 785-786.) “‘The general rule is that a defendant must make a specific objection on [specific] grounds at the trial level in order to raise [the] claim on appeal.’ [Citations.]” (People v. Mattson (1990) 50 Cal.3d 826, 854.)
Here, defendant never raised the issue below that his statements to officers were the subject of improper inducement such that they should be excluded from trial. The portion of defendant’s motion in which he challenges defendant’s statements to officers based on the “due process clauses of the United States and California Constitutions” was simply too vague for the trial court to identify this specific issue. Moreover, during the hearing on the motion, defense counsel made no mention that any of defendant’s statements were the subject of improper inducement. Rather, defense counsel solely sought a ruling on whether defendant had adequately waived his Miranda rights. After the trial court ruled against her, defense counsel pressed no further on any other issues. Defendant notes that “[a]lso in evidence at the hearing was a transcript of the recording of the interview of appellant.” However, as noted above, the court only read the first two pages of the 22-page transcript. Indeed, the transcript of the interview, marked exhibit No. 18, was “[m]arked for identification only.” It was never admitted into evidence below, either prior to or during trial. Defense counsel never requested the court read any further than the first two pages. The complained-of “improper inducements” by officers occurred respectively on the 16th and 18th pages of the transcript. Thus, defendant failed to preserve the issue for appeal by failing to raise it or present competent evidence on the issue below.
2. MERITS
Even to the extent that we could find the issue sufficiently preserved, we hold that it would fail on the merits. “The basic law is settled. A criminal conviction may not be founded upon an involuntary confession. [Citation.] ‘The prosecution has the burden of establishing by a preponderance of the evidence that a defendant’s confession was voluntarily made. [Citations.] In determining whether a confession was voluntary, “‘[t]he question is whether defendant’s choice to confess was not “essentially free” because his [or her] will was overborne.’” [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. [Citations.] “‘On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession is subject to independent review.’” [Citation.]’ [Citation.]” (People v. Williams, supra, 49 Cal.4th at p. 436.) “‘[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decisionto confess, the confession is involuntary and inadmissible as a matter of law.’” (People v. Williams (1997) 16 Cal.4th 635, 660, italics added.)
“In evaluating the voluntariness of a statement, no single factor is dispositive. (People v. Williams[, supra, ] 16 Cal.4th [at p.] 661[.] [rejecting the view that an offer of leniency necessarily renders a statement involuntary].) The question is whether the statement is the product of an ‘“essentially free and unconstrained choice”’ or whether the defendant’s ‘“will has been overborne and his capacity for self-determination critically impaired”’ by coercion. [Citation.] Relevant considerations are ‘“the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.”’ [Citation.]” (People v. Williams, supra, 49 Cal.4th at p. 436.) Also relevant is the particular defendant’s experience in the criminal justice system. (Id. at pp.442, 443.)
Here, while defendant made some inculpatory statements, which were admitted at trial, he never confessed to the crime. Indeed, defendant maintained at all times throughout the trial that he did not know the wire was stolen. Detective Gilbert’s initial statements indicated only that if defendant could provide the identity of the individual who stole the wire defendant would not be charged with the theft. Thus, Detective Gilbert “only pointed out those benefits which would naturally accrue to him if his true role [or non-role] in the crime was made known....” (People v. Hill (1967) 66 Cal.2d 536, 550.) Moreover, Detective Gilbert was clear that defendant was “still on the hook for possession of stolen property.” Detective Gilbert added, “If there’s somebody, If you’re just a little fish in the pond and there’s somebody bigger up there that we need to be worryin’ about, then that’s where you’re gonna help yourself out. That what you gotta tell us.” Defendant asked, “what kinda help am I gonna get?” Detective Gilbert responded, “We can’t make you any promises.”
At oral argument, defendant contended we misstated Gilbert’s promises to defendant. On the contrary, as reflected in our tentative opinion, the record shows that Gilbert initially promised only that defendant would not be charged with theft. Only later did Gilbert indicate that defendant could still face charges for possession of stolen property, a fact we clearly stated in a quote above at page 15 and again only two sentences after the instant sentence.
Furthermore, offering to note defendant’s cooperation with the district attorney is permissible to the extent the police do not suggest they can influence the decisions of the prosecutor. (People v. Carrington (2009) 47 Cal.4th 145, 174; People v. Jones (1998) 17 Cal.4th 279, 297-298.) While the officer’s statement that “[t]he DA will listen to me” would appear to cross that line, we note that nothing in the entirety of the transcripts indicates that the officers’ statements were the motivating cause of defendant’s decision to make the equivocally inculpatory statements or that defendant’s will was overborne. Finally, we note that the totality of the circumstances support the voluntariness of defendant’s statements: defendant was 45 years old at the time of the interview on July 30, 2008; he was a high school graduate; he had extensive prior experience with the criminal justice system including three prior felony convictions; the promises of leniency with regard to a possession of stolen property charge do not adequately compare to the potentially coercive nature of such promises with respect to charges in which a conviction would likely result in the death penalty, or a lengthy, if not life-long, prison term; (People v. Williams, supra, 49 Cal.4th at pp. 437-439, 442-443; People v. Lee (2002) 95 Cal.App.4th 772, 783-785; People v. Williams, supra, 16 Cal.4th at p. 659); the alleged “promises” of leniency were the only “coercive” tactic imposed; the interrogation was short; it took place in one location, a police interrogation room; it was both audio and video recorded; and defendant appeared to be under no physical or mental impairment. Thus, defendant’s statements were properly admitted at trial as the product of his voluntary decision to speak with the investigators.
At oral argument, defendant contested our conclusion that any promises of leniency were not a motivating factor in defendant making the inculpatory statements, contending instead that defendant’s query “Well what kinda help am I gonna get?” establishes that his self-condemning statements were induced by Gilbert’s promises. We note that defendant’s question came in the middle of the interview after he had already made concessions regarding possession of the wire, had admitted recycling it, admitted obtaining it from someone else, and after Gilbert informed him he was still facing prosecution for possession of stolen property. Considering the totality of the circumstances, we cannot conclude that any promises of leniency resulted in defendant’s will being overborne such that his statements were constitutionally involuntary.
D. INSTRUCTIONAL ERROR
Defendant contends the court erred in instructing the jury at the initiation of voir dire that the type of decisions they would make as jurors were similar to the types of decisions they made in their everyday lives. Thus, defendant maintains the court effectively diminished the People’s burden of proof. The People argue that defendant forfeited the alleged error by failing to object below. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [Prosecutor’s statements during closing argument that reasonable doubt was like decisions made in people’s everyday lives such as changing lanes in a car or getting married forfeited for failure to object.].) We shall address the merits of defendant’s claim to forestall his IAC claim. Having done so, we find no error.
Here, prior to the individual questioning of the jurors, the court addressed the venire panel as follows: “I hope to get the first phase [of jury selection] done today. Let’s talk some more about the first phase. Basically we’re just trying to get some fair people. Some people are intimidated by the notion of making these decisions, or being in the courtroom, stuff like that. It’s not that big a deal. You’re doing what you do in everyday life, making decisions, using your brain. You make those kind of decisions all the time. That is just what you do as a juror.”
“Due process ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.’ [Citation.]” (People v. Johnson (2004) 119 Cal.App.4th 976, 978-979 (Johnson).) “[E]quating proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life [unconstitutionally] lowers the burden of proof to a preponderance of the evidence....” (Id. at p.985.) Such “error ‘unquestionably qualifies as “structural error”’ and compels reversal per se.” [Citations.]” (Id. at p.986.)
Defendant contends that the trial court trivialized the reasonable doubt standard and lowered the prosecution’s burden of proof by characterizing juror decisions as “not that big a deal” and equating proof beyond a reasonable doubt to “doing what you do in everyday life, making decisions, using your brain. You make those kind of decisions all the time. That is what you do as a juror.” We disagree. In Johnson, the trial court repeatedly and extensively “equated proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life, ” spoke individually with several jurors using hypotheticals to emphasize this point, and invited the jurors to “make the ‘kind of decisions you make every day in your life’” in deciding between guilty and not guilty. (Johnson, supra, 119 Cal.App.4th at pp. 979-983.) The prosecutor “took his cue from the court’s reasonable doubt instructions” and argued to the jury that “proof beyond a reasonable doubt [was comparable] to everyday decisionmaking in a juror’s life.” (Id. at pp.982-983.)
Here, on the other hand, the court made only one mention of a juror’s decision-making process involving the same decisions individuals make in their daily lives. The comment was not made in direct connection with a discussion of the burden of proof. It was made prior to the initiation of voir dire. The court had already prefaced its discussion with the jury with the following admonition: “When you hear the evidence, as I said, it may or may not support these allegations. So you need to continue to keep an open mind. The fact that he has been charged is not evidence of his guilt. The People have the burden of proving their contentions or their allegations beyond a reasonable doubt.” During individual questioning of one juror, the court again stressed the “beyond a reasonable doubt” standard of proof for conviction. Also during venire, defense counsel stressed the “beyond a reasonable doubt” standard. The court pre-instructed the jury prior to trial that “the defendant has pled not guilty which places the burden upon the District Attorney representing the People to prove his guilt, if she, can beyond a reasonable doubt.” The court also pre-instructed the jury with CALCRIM No. 103. At the close of evidence the court instructed the jury with the relevant reasonable doubt instructions, CALRIM Nos. 220, 224, and 359. Unlike Johnson, the prosecutor here made no analogy in her closing arguments between the daily decisions made by jurors and their obligation in reaching a guilty verdict. On the contrary, the People repeatedly stressed the “beyond a reasonable doubt” standard. Thus, the court’s one statement regarding jurors’ daily decision-making made prior to the initiation of voir dire; made with no direct connection to the burden of proof; prefaced and followed by numerous instructions on the proper standard of proof made before voir dire, during voir dire, in pretrial instructions, and in posttrial instructions; and the prosecution’s echoing of the proper standard of proof, did not result in a lowering of the People’s burden of proof.
“‘I will now explain the presumption of innocence and the People’s burden of proof. The defendant has pleaded not guilty to the charge. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true.’ [¶] ‘You must not be biased against the defendant just because he’s been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.’ [¶] ‘Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt.’ [¶] ‘In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he’s entitled to an acquittal and you must find him not guilty.’”
E. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends that his defense counsel below provided constitutionally IAC by failing to object to the court’s “misinstruction” of the jury with the daily decision making comment, by failing to object to some of the People’s comments during closing arguments on the ground of prosecutorial misconduct, and by failing to impeach Detective Gilbert on cross-examination with aspects of his interrogation of defendant, which would have proven Detective Gilbert’s testimony “demonstrably false.” We find no error.
In order to establish a claim of IAC, defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668; accord, People v. Boyette (2002) 29 Cal.4th 381, 430.) Hence, an IAC claim has two components: deficient performance and prejudice. (Strickland, at pp. 687-688, 693-694; People v. Williams, supra, 16 Cal.4th at pp. 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either component, his claim fails. If 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.)
1. FAILURE TO OBJECT TO COURT’S ALLEGED MISINSTRUCTION OF THE JURY
We discussed the merits of defendant’s contention above and discerned no error in the court’s comments to the jury. Thus, defendant’s IAC claim fails on both prongs.
2. FAILURE TO OBJECT TO ALLEGED PROSECUTORIAL MISCONDUCT
Defendant contends that defense counsel committed constitutionally IAC by failing to object to the following statements of the prosecutor during the People’s rebuttal argument: “Reasonable doubt. When I was a kid, I used to do puzzles with my grandmother, and I’m sure many of you have done puzzles. You don’t need every single piece. If you’ve put together a puzzle 95 percent of the way, and you’re missing three pieces, you can tell what that puzzle is. [¶] Ladies and gentleman, we have more than 95 percent of the puzzle here. Beyond a reasonable doubt, the defendant knew that that wire was stolen when he was recycling it.”
Misconduct by the prosecutor violates the federal Constitution when it “‘“‘comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’”’” (People v. Hill (1998) 17 Cal.4th 800, 819.) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” [Citation.]’ [Citation.]” (Ibid.) A prosecutor errs to the extent that he or she quantifies the concept of reasonable doubt. (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1265, 1267-1268 (Katzenberger).)
To the extent the prosecutor committed error by quantifying the burden of proof, we find no prejudice; thus, defendant’s IAC claim fails under the second prong. In Katzenberger, the prosecutor presented a Power Point presentation during closing argument in which six of eight pieces of a puzzle of the statue of liberty were presented. The picture was instantly recognizable. The prosecutor argued “‘[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of... it.’” (Katzenberger, supra, 178 Cal.App.4th at p. 1265.) The court held that “[t]he prosecutor’s use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt. The prosecutor committed misconduct.” (Id. at p. 1268, fn. omitted.) The court cautioned that “prosecutors who are tempted to enliven closing argument with visual aids... to illustrate the ‘beyond a reasonable doubt’ standard” tread in dangerous waters. (Id. at p.1269.) Nevertheless, the court held that the prosecutor’s misconduct was not prejudicial. (Ibid.)
At oral argument, defendant contended that we impermissibly re-framed his argument as one of quantification when the issue briefed was actually one of prosecutorial misconduct in making the puzzle analogy in general. Nevertheless, Katzenberger, the primary case defendant exposited on this issue, certainly frames the issue as one of quantification of the burden of proof. Moreover, we explicitly hold that the prosecutor committed no prejudicial misconduct in employing the puzzle analogy in any context. The People in no way, as argued by defendant at oral argument, suggested that the elements of the offense were like puzzle pieces such that the prosecution could meet its burden of proof even if it had not adduced evidence on some of those elements. Rather, the puzzle metaphor was employed when the People discussed the burden of proof, not the elements of the offense.
We find Katzenberger distinguishable. Here, the prosecutor did not use a Power Point presentation; did not use any “visual aid”; did not present “an easily recognizable iconic image”; and, at worst, stated a quantification grossly exceeding that of the prosecutor in Katzenberger; indeed, it could be argued that the prosecutor provided no quantification at all because she did not indicate a minimum percentage necessary for conviction. Rather, she simply noted that “we have more than 95 percent of the puzzle here.” Finally, as discussed above, the trial court repeatedly discussed and informed the jury with the proper standard of proof; it properly instructed the jury with CALCRIM Nos. 103,, 220, 224, and 359. We presume the jury followed those instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.)
The six out of eight pieces discussed in Katzenberg corresponds to 75 percent.
3. FAILURE TO IMPEACH DETECTIVE GILBERT
Defendant contends defense counsel failed to impeach Detective Gilbert with statements from the transcript of his interrogation of defendant which proved that Detective Gilbert’s testimony on direct was “demonstrably false.” We find no error.
“The cross-examination of witnesses is a matter falling within the discretion of counsel and rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 985, disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ]... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, ” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.] ‘... “[T]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus.”’ [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, defendant claims that while on direct Detective Gilbert testified that defendant admitted being the individual who recycled the wire; a perusal of the interrogation transcript belies this statement, yet defense counsel failed to impeach Detective Gilbert with this discrepancy. In the interview, when asked if defendant remembered “this wire, ” defendant replied “I don’t remember that exact wire, but I mean I recycled wire like that....” However, later portions of the interview are strongly indicative of an admission that defendant recycled “the wire” that was stolen from Verizon. When later asked if he got “this wire from somebody else, ” defendant responded “Well I us-, I usually got a scrappin’ partner or somethin’.’” When asked, “So where’d he get it?, ” defendant replied, “who’s to say, you know.” When asked how he ended up with the wire defendant agreed that someone was basically making him a patsy. When told that he was recycling stolen wire, defendant said he “didn’t know” that the wire was stolen. When again asked, “who stole this wire, ” defendant replied “I don’t know who cut it. I, I know where I got it from, but I don’t know who cut it.” Thus, the transcript adequately supports Detective Gilbert’s testimony that defendant admitted to recycling the stolen wire. Therefore, defense counsel did not err in failing to impeach Detective Gilbert with the statements in the interview transcripts.
Defendant also contends that the interrogation transcript establishes that Detective Gilbert was either unaware that the replacement wire was similar to that found at the construction site where defendant initially indicated he found the wire (because both were underground wires) or that Detective Gilbert intentionally lied to defendant that the wire was different in order to coerce an admission. Thus, defendant maintains defense counsel should have impeached Detective Gilbert with the fact that both the construction site wire and the second stolen wire were underground wire. It is true that Verizon replaced the original wire with preexisting buried wire that they spliced to the main line. However, there were two stolen wires. From the context of the interview in its entirety it is clear that Detective Gilbert had both stolen wires in the interview room with him. One of the wires was clean while the other was “a mess.” Thus, it is not at all clear that Detective Gilbert was referring to the temporary wire when he informed defendant that that type of wire could not be found at the construction site. Instead, he could have been referring to the original, clean wire. Moreover, simply because both the construction site wire and the temporary wire were underground wires does not support the conclusion that they were the same type of wire. Finally, nothing in the record indicates that the second stolen wire consisted solely of the temporary replacement wire. To the contrary, McCullough testified that the second theft included only some pieces of the temporary replacement wire. Thus, it is unclear exactly what defense counsel could have achieved by impeaching Detective Gilbert in the manner suggested. Ultimately, nothing in the record establishes why defense counsel failed to impeach Detective Gilbert with the contents of the interrogation; thus, the issue must fail on appeal.
At oral argument, defendant maintained that the “clean” and “messy” wires Gilbert referred to in his testimony were the ones reflected in the picture, exhibit No. 7 a photograph of the wires dumped on the ground at the recycling center, not the wires on the table before him as he interviewed defendant. Although Gilbert expressly referenced that picture in his testimony, the interview transcript clearly reflects that Gilbert had the two cables pictured in exhibit No. 7 before him during his interrogation of defendant.
Finally, at oral argument, defendant maintained that Chanthavong testified that defendant only recycled onetype of wire, “just insulated number 2. That’s what we refer to it as.” Defendant noted that nowhere else in the record was the stolen wire described that way. We are not at all sure what relevance defendant’s observation is to his contentions on appeal. If he is attempting to argue that defendant, in fact, recycled wire other than the stolen wire, we note that Chanthavong, unlike McCullough who was employed by Verizon and regularly dealt with the installation and maintenance of such cable, would not appear to be an expert regarding wire types. Thus, the jury acted within its province to the extent it concluded that McCullough, not Chanthavong, could more aptly identify the type of cables obtained from the recycling center. Furthermore, there is no indication in the record that “insulated number 2” wire is not simply a broader type of categorization for the more specific types of cabling, 200 PAR, 4 PAR, and/or CAT 3 cable identified by McCullough and Gilbert. Finally, Chanthavong’s testimony that “that’s what we refer to it as” is highly suggestive that he and coworkers had simply come up with their own, non-technical, manner of describing cables. Thus, Gilbert and McCullough’s description of the wires could reasonably be deemed more accurate.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI Acting P. J., KING J.
Defendant first complains his statement, that the thought the wire was stolen had crossed his mind, is legally insufficient to support the mens rea of the charge for which he was convicted. First, we disagree with defendant that his statement would be per se insufficient to support conviction. The jury could have rationally inferred defendant’s knowledge of the illicit origin of the wire solely upon his statement it had crossed his mind that it was stolen. Second, Gilbert testified that when he asked defendant whether he knew the wire had been stolen, defendant replied first, “‘Yes.’” Thus, defendant replied affirmatively that he knew the wire was stolen.
Defendant further contends the People never established when he had knowledge of the wire’s illicit nature. In other words, the fact that he had been arrested could have become the genesis for defendant’s awareness that the wire may have been stolen. If so, then an essential element of the possession of stolen property charge, knowledge that the property was stolen, would be defeated because defendant did not have such knowledge at the time he possessed the property. On the contrary, defendant’s statement that he knew or, at least suspected, that the wire was stolen could have been rationally construed by the jury as the state of defendant’s knowledge when he acquired the wire. Indeed, this would be the only rational purpose of Gilbert’s question; to establish that element of the crime. Thus, substantial evidence supported the jury’s inherent finding that defendant knew the wire was stolen when he had possession of it.