Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09CF0098, David A. Thompson, Judge.
John N. Aquilina, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Jacob Sebaski Henry appeals from a judgment after a jury convicted him of vehicle taking with prior convictions. Henry argues: (1) the trial court violated his federal constitutional rights when it failed to allow him to dress in civilian clothes at the start of trial; (2) he received ineffective assistance of counsel when defense counsel failed to prevent the admission of a prior conviction; and (3) the prosecutor committed misconduct when he commented on Henry’s Fifth Amendment right to remain silent, an improper attempt to shift the burden of proof. Alternatively, in his petition for writ of habeas corpus, Henry claims he received ineffective assistance of counsel because defense counsel failed to prevent the admission of a prior conviction. We ordered consolidation of the petition with the appeal.
Although we agree with his first claim, we conclude Henry was not prejudiced. His claim the prosecutor committed misconduct is meritless. We affirm the judgment and deny the writ petition.
FACTS
Roxana Vivas went on vacation with her family. Jesus Cervantes, her cousin, drove them to the airport in Vivas’s 1999 Ford Expedition. Cervantes drove home and parked the vehicle on his driveway. There was a key in the vehicle. One afternoon, Cervantes noticed the vehicle was gone and he called the police. Vivas gave Cervantes permission to drive the vehicle, but neither of them gave anyone else permission to drive the vehicle.
One week later, a little after midnight, Officer Luis Garcia was on patrol in a marked patrol car when he approached Henry in a Ford Expedition parked near a bank. Henry quickly drove away. Garcia radioed the license plate number to dispatch and learned the vehicle had been reported stolen. Garcia pursued the vehicle, and Henry stopped the car. Garcia stopped his car and got out. As Henry stepped out of the vehicle, Garcia yelled, “‘Tustin Police. Stop. Put your hands up.’” Henry complied, and Garcia arrested Henry and searched the vehicle-there was no damage to the steering column or ignition, or windows. Henry had a key to the vehicle.
There was a passenger in the vehicle.
An information charged Henry with vehicle taking with a prior conviction (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a)). The information alleged Henry suffered three previous violations of Vehicle Code section 10851, subdivision (a)-June 28, 2001 (misdemeanor); April 9, 2004 (felony); and June 30, 2005 (felony). The information also alleged he suffered a prior serious and violent felony conviction for first degree burglary on March 10, 2003 (Pen. Code, §§ 459, 460, subd. (a)), within the meaning of Penal Code sections 667, subdivisions (d), and (e)(1), and 1170.12, subdivisions (b), and (c)(1). The information also alleged that in 2004 and 2005 Henry served separate prison terms within the meaning of Penal Code section 667.5, subdivision (b).
At an Evidence Code section 402 hearing before trial, the prosecutor stated he would move to introduce Henry’s 2003 burglary conviction to impeach Henry if he testified. The prosecutor also argued Henry’s 2004 and 2005 convictions were admissible pursuant to Evidence Code section 1101, subdivision (b), to show a common plan. The trial court deferred ruling on the admissibility of the prior convictions under either theory. The prosecutor indicted he and defense counsel had discussed a stipulation concerning a vehicle theft conviction as part of its case-in-chief. The court then inquired of counsel how to instruct the jury on the substantive offense with a prior conviction allegation because there was no standard instruction. Resolution of that issue was also deferred.
Prior to the start of jury selection, the trial court explained that the previous day the court and counsel discussed the issue of civilian clothing. The court stated it issued a clothing order and defense counsel “worked” with the court clerk to make sure the “clothes were where they needed to be.” The court stated: “Henry refused to put the clothes on this morning. That’s why he’s wearing a jumpsuit. So I’m inclined to proceed with him in a jumpsuit.”
Defense counsel stated he did drop off clothes and Henry told him deputies told Henry there were no clothes for him to change into. The trial court stated, “That’s just not the information I have. He’s just not being truthful with us. I’ve got it from several different people. He just refuses to put on the clothes that were brought over.” Defense counsel replied he was worried there would be an issue, and the trial court said that is why he addressed the issue the prior day. When defense counsel stated he brought a spare pair of clothes with him to trial, the trial court said: “It’s not happening. It’s not happening. When [Henry] refused to get dressed, it’s his own fault. Just, there’s nothing I can do about that. I’m not going to order the bailiffs to dress him out here. It’s a violation of policy. If it’s their fault, they’re mistaken, this I certainly understand. But when he refused, he’s stuck with it. So, my plan is to proceed.”
The trial court stated it wanted to make a record of the events that transpired. The court asked a deputy what he was told. The deputy, unsworn, explained: “Your honor, I was made aware he was not changing out into civilian clothes for his trial. I called over to the court deputy over at the jail and they told me that... [Henry] refused to wear the clothes that he had at the jail. They were the wrong set of clothes. And he did sign the refusal, saying that he would not wear those clothes. They were the wrong set.”
When the trial court asked whether the deputy knew of any additional information, the deputy stated that when he asked Henry that morning why he was not dressed, Henry told the deputy there were no clothes at the jail. The court indicated a signed copy of the refusal was being faxed and would be made a part of the record.
Defense counsel objected to proceeding with Henry dressed in his jumpsuit and again stated he brought a spare pair of clothes. The trial court stated the court rule prohibits changing in the courthouse for security reasons. The trial court explained that if a deputy makes a mistake, the court would allow the defendant to change, but when the defendant refuses to change, “there’s just no reason to rescue him from his own actions.”
Defense counsel stated he delivered the clothes to the jail the previous night and Henry might not have known the clothes were for him. The trial court characterized Henry’s conduct as uncooperative. Defense counsel requested the trial court instruct the jury regarding the fact his custody status not be used against him.
After the trial court received the signed form indicating Henry had refused to change, defense counsel explained Henry thought he had only a t-shirt and leather jacket and he did not want to change into street clothes for trial. Defense counsel assured the trial court this was not one of the cases where a defendant just refused to change into civilian clothes.
The trial court stated: “I just don’t believe anything your client says. He’s already told us three different stories. It seems that the story changed by the minute. I’ve got a piece of paper where he refused to dress out. As far as I’m concerned that’s the end of the inquiry. The clothes were there. He should have put them on. [¶] This seems to be a regular occurrence in the jail for some reason. I don’t know if people are trying to [game] the system, delay the trial, or hope that something bad is going to happen and they can’t be tried. But I just can’t tolerate this.” Defense counsel stressed Henry wanted clothing to change into and counsel had clothing with him Henry could change into.
The trial court stated: “I just don’t have any reason to believe anything that he’s said on this issue. As I say, he’s already told us three different stories and the story changes every five minutes. It’s just -- I just don’t believe it. So, I’m going to go with the paperwork that I got that said he refused. [¶] All right. Let’s bring the folks in.”
Before the jury came in, however, the trial court asked the deputy to repeat what he had told the trial court that morning. The deputy stated: “Initially when we went on the record, I said -- when... Henry first came into the building I asked him why he wasn’t dressed for trial. He said there were no clothes available for him to wear at the jail. [¶] Then as I was bringing him up the elevator to the courtroom I asked him, ‘so is it my understanding there were no clothes there for you at the jail?’ He said, ‘That area there’s no clothes.’ He said, ‘It’s okay. My attorneys are bringing my clothes. I can dress out in the courtroom.’”
Jury voir dire proceeded and a jury was impaneled. The trial court gave the jury preliminary instructions and excused the jurors until the next morning. The next day, when trial began, Henry wore civilian clothes. The trial court instructed the jury on the presumption of innocence, the prosecutor’s burden of proof, and the fact Henry was arrested, charged, and brought to trial was not evidence of guilt.
At trial, both Vivas and Cervantes testified they did not know Henry or give him permission to drive the vehicle. The parties stipulated to the following: “‘... Henry was previously convicted of a felony, violation of Vehicle Code section 10851[, subdivision] (a), unlawful taking of a vehicle, on April 9, 2004.’” Later, the trial court indicated that if Henry were to testify the court would allow the prosecutor to introduce evidence he suffered felony convictions in 2003 and 2005 in sanitized form. The court added it was unlikely he would permit this evidence to be admitted pursuant to Evidence Code section 1101, subdivision (b), based on Evidence Code section 352, but he reserved ruling on those issues.
At the end of trial, the trial court instructed the jury with CALCRIM No. 204, that the fact Henry was in custody was not evidence. The jury convicted Henry of one count of vehicle taking with a prior conviction. At a bifurcated trial, the trial court found true Henry’s 2003, 2004, and 2005 prior convictions. The trial court sentenced Henry to six years in prison.
DISCUSSION
I. Civilian Clothing
Henry argues the trial court violated his federal constitutional rights when the court denied his request to change into civilian clothes before jury voir dire. The Attorney General concedes Henry should not have been forced to wear jail garb during voir dire. As we explain below, Henry was not prejudiced.
“We begin with the bedrock proposition that ‘[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment....’ (Estelle v. Williams (1976) 425 U.S. 501, 503....) Estelle held that ‘the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, ... [.]’ [Citation.] In that case, however, the court found the failure to object to being tried in such clothes ‘sufficient to negate the presence of compulsion necessary to establish a constitutional violation.’ [Citation.] [¶] There are substantial reasons for the rule that a criminal defendant is entitled to be tried in ordinary clothing. Foremost is the rationale that compelling a defendant to go to trial in jail clothing could impair the fundamental presumption of our system of criminal justice that the defendant is innocent until proved guilty beyond a reasonable doubt. [Citations.] To implement and protect the presumption of innocence, ‘courts must be alert to factors that may undermine the fairness of the factfinding process.’ [Citation.] The Supreme Court has observed that the defendant’s jail clothing is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor. [Citation.] The clothing inexorably leads to speculation about the reason for defendant’s custody status, which distracts the jury from attention to permissible factors relating to guilt. In most instances, parading the defendant before the jury in prison garb only serves to brand the defendant as someone less worthy of respect and credibility than others in the courtroom. ‘The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs.’ [Citation.] [¶] Another reason for disfavoring the use of prison clothes during trial was articulated in People v. Zapata (1963) 220 Cal.App.2d 903, 911.... That court recognized that beside the potential prejudice raised in the minds of the jurors, the defendant may be handicapped in presenting his defense by the embarrassment associated with his wearing jail garb. [¶]... [¶] Although the right to be tried in civilian clothing is a constitutional right valuable to a fair trial, the right may be waived by a failure to timely object or otherwise bring the matter to the court’s attention. [Citations.]” (People v. Taylor (1982) 31 Cal.3d 488, 494-495 (Taylor).)
Here, there is no dispute Henry initially forfeited his right to wear civilian clothes when he signed the form acknowledging he refused to change. It is of no significance there may have been confusion over which clothes were available for him to change into. When he signed the form admitting he refused to change, he forfeited his right to complain on appeal he was denied his federal constitutional rights. That does not end our inquiry however as we must decide whether Henry withdrew his refusal.
At trial, defense counsel objected to the trial court continuing with jury voir dire with Henry dressed in a jail jumpsuit. Defense counsel indicated he had civilian clothes for Henry to change into. Henry’s objection to proceeding in jail garb was a withdrawal of his earlier signed refusal and was a timely request to change into civilian clothes. (Taylor, supra, 31 Cal.3d at p. 495.) What then should have the trial court have done?
When defense counsel indicated he had civilian clothes to change into the trial court considered two options: (1) allow Henry to change in violation of court security rules; or (2) proceed with Henry dressed in jail garb. But there was a third option: trail the matter one day to allow Henry the opportunity to change into civilian clothes at the jail before returning to court.
We understand the trial court’s frustration when it was Henry himself who sabotaged his ability to appear in civilian clothes for his trial. Likewise, we appreciate the risk created when an inmate is allowed to circumvent the security procedures at the jail by changing at the courthouse. But a defendant has a federal constitutional right to be dressed in civilian clothes. And a court rule is not grounds for denying a defendant the right to be dressed in civilian clothes. (Taylor, supra, 31 Cal.3d at p. 496.)
Here, there was a way to accommodate the trial court’s legitimate security concerns without violating Henry’s right to appear before the jury in civilian clothes. The trial court could have trailed the matter a day to allow Henry the opportunity to change into civilian clothes at the jail. There is nothing in the record that suggests Henry would not have been amenable to such a solution. We must now determine whether Henry was prejudiced under Chapman v. California (1967) 386 U.S. 18, the harmless error standard applicable to federal constitutional errors. He was not.
Taylor, supra, 31 Cal.3d 488, and People v. Pena (1992) 7 Cal.App.4th 1294 (Pena), are instructive. In Taylor, the highly contested facts of the homicide turned on witness credibility, and defendant was identified in court by his jail clothing. The Taylor court opined it could not conclude beyond a reasonable doubt forcing defendant to wear prison garb was harmless error. (Taylor, supra, 31 Cal.3d at p. 500.)
In Pena, supra, 7 Cal.App.4th 1294, a rape victim’s testimony was corroborated by both physical evidence and the testimony of others, and defendant’s testimony was far-fetched and almost entirely uncorroborated. Additionally, defendant was not identified by his jail garb. (Pena, supra, 7 Cal.App.4th at pp. 1307-1308.) The Pena court opined it could conclude defendant’s appearance was harmless beyond a reasonable doubt. (Id. at p. 1308.)
The case before us is more similar to Pena, supra, 7 Cal.App.4th 1294, as the evidence was conclusive as to Henry’s guilt. Henry was caught in possession of a stolen vehicle just eight days after the vehicle was stolen from Cervantes’s driveway. There was evidence neither Vivas nor Cervantes knew Henry nor gave him permission to take the vehicle. (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574; People v. Green (1995) 34 Cal.App.4th 165, 181 [defendant driving car four days after it had been stolen].) When Henry saw the marked patrol vehicle, he sped away through the parking lot driving through parking spaces. Based on Henry’s possession of recently stolen property and his fleeing of a police officer, a jury had ample evidence to conclude he unlawfully took the vehicle.
Additionally, Henry was dressed in a jail jumpsuit briefly during voir dire and not during trial. During voir dire, the court advised the jury venire that it could not consider the facts Henry was in custody or wearing a jail jumpsuit against him. Before trial started, the court instructed the jurors to not make up their minds about the verdict until it had heard all the evidence and to not let bias, sympathy, prejudice, or public opinion influence their decision (CALCRIM No. 101, “Cautionary Admonitions: Jury Conduct (After Jury is Selected)”). After the close of evidence, the court instructed the jury on the presumption of innocence and the prosecutor’s burden of proof (CALCRIM No. 103, “Reasonable Doubt”). The court also instructed the jury to not consider the fact Henry was in custody for any purpose (CALCRIM No. 204, “Defendant in Custody”). “‘We presume that jurors understand and follow the court’s instructions’ [citation]....” (People v. Hovarter (2008) 44 Cal.4th 983, 1005.) Like the Pena court where the evidence was conclusive of defendant’s guilt, we conclude Henry’s appearance was harmless beyond a reasonable doubt.
II. Prosecutorial Misconduct
Henry argues the prosecutor committed misconduct when he commented on his Fifth Amendment right to remain silent and attempted to shift the burden of proof to Henry. Not so.
“Pursuant to Griffin [v. State of California (1965) 380 U.S. 609, 615 (Griffin)], it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]... We also suggested... [citation]... it is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] But although ‘“Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand, ”’ the prohibition ‘“does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.”’ [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 371-372 (Hughes).)
During closing argument defense counsel argued that based on all the evidence the jury could reasonably infer Henry did not know the vehicle was stolen and therefore the jury should acquit him. At sidebar, the prosecutor stated he intended to argue that if someone stole the car and sold it to or gave it to someone else who gave it to Henry, why did defense counsel not subpoena that person to come to court and testify he or she sold it or gave it to Henry. Defense counsel argued that was prosecutorial error pursuant to Griffin, supra, 380 U.S. 609. The trial court ruled the prosecutor could not argue what he intended to argue because he was impliedly commenting on Henry’s Fifth Amendment right not to testify and shifted the burden of proof to him.
During rebuttal the prosecutor argued: “And the whole point is, all this he’s asking you to speculate. Because you have no evidence of it. You have no evidence of any other reasonable possibility. And if you do what you’re supposed to do, it’s going to tell you to throw that speculation out. [¶] I know I keep saying it and you’re probably getting sick of me saying it, basing your decision only on the evidence in this case. Why do I keep repeating and going over and over? Well, because [Henry] is sitting there and he knows that he doesn’t have to convince all [12] of you to avoid a guilty verdict. He needs just one. He knows that if one of you gets convinced by these arguments the defense is making and it’s [11] to one, that’s not guilty. That’s not a guilty verdict. He knows that. [¶] And he knows that maybe if they throw enough stuff out there and say, hey, the car wasn’t hot-wired. Or hey, he was right by Tustin Police. That must mean he didn’t know it was stolen.”
Defense counsel objected on the grounds of improper argument, and the trial court called for a sidebar. Defense counsel argued the prosecutor shifted the burden of proof, and the trial court suggested it was more concerned with the comment concerning what Henry knew. The prosecutor responded he merely commented Henry knew a guilty verdict required a unanimous verdict. The trial court denied Henry’s mistrial motion. The trial court characterized the prosecutor’s comments as “mild Griffin error, which is easily cured.”
The trial court immediately instructed the jury as follows: “Ladies and gentlemen, you are instructed to completely disregard any arguments the prosecutor made about what [Henry] knew or didn’t know. [¶] ‘A defendant has an absolute constitutional right not to testify. He may rely on the state of the evidence and argue that the people have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that [Henry] did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
The prosecutor then added: “And, I apologize, ladies and gentlemen, if I said anything to suggest that [Henry] or the defense was required to call witnesses in this case or produce evidence. They’re not. He has an absolute right not to testify and you cannot hold that against him. But what you can do is hold him accountable. And you have to do that without speculating.”
Based on the state of the evidence and the prosecutor’s comments, we cannot conclude the prosecutor committed Griffin error. Henry did not offer any evidence on his own behalf. He argued he did not know the vehicle was stolen as evidenced by the fact the vehicle was not damaged, he had a key, and he was apprehended driving near a police station. Although it is error for the prosecutor to comment on a defendant’s failure to testify and to refer to the absence of evidence that only the defendant’s testimony could provide, a prosecutor may comment on a defendant’s failure to introduce material evidence or call logical witnesses.
Here, the prosecutor did not comment on Henry’s failure to testify or shift the burden of proof to him. The prosecutor merely commented on the state of the evidence and argued Henry was asking the jury to speculate. The prosecutor’s comments when read in the entirety were in response to defense counsel’s claim Henry did not know the vehicle was stolen. If indeed Henry did not know the vehicle was stolen then he acquired it from someone. We interpret the prosecutor’s comments as Henry failed to call that third party who could verify he or she gave or sold the vehicle to Henry and Henry did not know the vehicle was stolen. We disagree with Henry’s claim he is the only one who could provide evidence as to where he acquired the vehicle. Additionally, the prosecutor did not shift the burden of proof to Henry as the prosecutor is permitted to argue the defense failed to introduce material evidence. (Hughes, supra, 27 Cal.4th at pp. 371-372.) Thus, the prosecutor did not commit misconduct during rebuttal argument.
III. Ineffective Assistance of Counsel
On appeal and in his petition for writ of habeas corpus, Henry contends he received ineffective assistance of counsel because his defense counsel stipulated in the jury’s presence that he had suffered a 2004 conviction for unlawfully taking a vehicle. The Attorney General agrees the jury should not have heard the stipulation but asserts Henry was not prejudiced. As we explain below, we need not decide whether defense counsel’s performance was inadequate because Henry cannot establish he was prejudiced by defense counsel’s performance.
“In order to establish a violation of the right to effective assistance of counsel, a defendant must show that counsel’s performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsel’s performance prejudiced defendant’s case in such a manner that his representation ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] Moreover, ‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.’ [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] If defendant fails to show that he was prejudiced by counsel’s performance, we may reject his ineffective assistance claim without determining whether counsel’s performance was inadequate. [Citation.]” (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
We need not decide whether defense counsel provided ineffective assistance of counsel under the relevant authorities (People v. Bouzas (1991) 53 Cal.3d 467, 472; People v. Young (1991) 234 Cal.App.3d 111, 113; Pen. Code, §§ 1025 & 1093), as Henry cannot establish he was prejudiced by defense counsel’s stipulation he suffered a prior conviction for the same offense he was charged with here. As we explain above, there was sufficient evidence of Henry’s guilt as he possessed recently stolen property and he fled from an officer when spotted in the vehicle. Additionally, the trial court instructed the jury it could not consider the fact Henry was previously convicted of unlawfully taking a vehicle for any purpose other than he had a prior conviction for violating Vehicle Code section 10851. Therefore, it is not reasonably probable that had the jury not heard the stipulation Henry would have received a more favorable result.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: ARONSON, J., IKOLA, J.