Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10705
OPINION
HULL, J.
Defendant was convicted by a jury of three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and one count of making criminal threats (Pen. Code, § 422). He was also found to have personally used a firearm in each of the assaults (Pen. Code, § 12022.5, subd. (a)(1)). Defendant was sentenced to state prison for an aggregate, unstayed term of nine years.
He appeals, claiming his constitutional and statutory rights were violated when, during cross-examination and closing argument, the prosecutor alluded to defendant’s failure to explain his side of the case prior to trial. Defendant also challenges a number of instructions given by the trial court and asserts cumulative error. We affirm the judgment.
Facts and Proceedings
For several years prior to November 2004, defendant maintained a romantic relationship with N.M. Between November 2004 and November 2005, he maintained a romantic relationship with M.G., during much of which he shared an apartment with her on Wright Street in Sacramento.
In the early morning hours of December 4, 2005, defendant was at a nightclub in Old Sacramento named Tunel 21. Also present were N.M. and M.G. At some point, M.G. and her friends, including R.P., got into an argument with N.M., with defendant in the middle. M.G. and her friends were eventually ejected from the nightclub.
M.G. and her friends remained outside the nightclub waiting for N.M. to emerge in order to assault her. They never got the chance. Instead, defendant came out of the nightclub and got into an argument with M.G., which ended when he either slapped or punched her and caused her nose to bleed.
As M.G. and her friends were leaving Old Sacramento, they saw two police officers and stopped to tell them what had happened. While they were talking to the officers, defendant drove by and one of M.G.’s friends followed him in her car and ran into the rear of defendant’s vehicle. Defendant stopped and spoke to the police, who informed the group that if they arrested defendant for assault, they would have to arrest M.G.’s friend for hitting defendant’s car. They all decided to drop the matter and departed.
M.G. and R.P. went to M.G.’s apartment on Wright Street, where they found M.G.’s roommate, E.S., at the kitchen table eating. Meanwhile, defendant picked up a friend and drove to M.G.’s apartment as well.
While M.G., R.P. and E.S. sat at the kitchen table talking, defendant unlocked the front door to the apartment and walked in carrying a shotgun. Although defendant was no longer living at the apartment, he still had a key.
Defendant pointed the shotgun at M.G. and said “you bitches are gonna die tonight.” He directed the women to get on the floor, and R.P. and E.S. complied. M.G. begged for defendant to stop. Defendant grabbed M.G.’s hair and forced her head down onto the kitchen table, causing an injury to her forehead. She fell out of the chair and onto the floor.
Defendant said something about M.G. cheating on him by reporting him to the police. He began pushing her around the living room and kicking her. He also threw a coffee table on top of her. M.G. begged for defendant to stop and to leave. Defendant said he was going to kill M.G. and “[s]omebody is gonna find her body somewhere.”
After a while, defendant came over to R.P., put the shotgun to the side of her head and said the only reason he did not kill her was that they were friends, they had always gotten along, and she had never done anything wrong to him. Defendant then moved over to E.S., put the shotgun to her head and said he barely knew her but had never had any problems with her.
Defendant eventually departed, taking the shotgun with him. He got back in his car and drove to Reno with his friend.
The three women called the police. The police arrived at the apartment and the women reported what had happened. Defendant was arrested the following week.
Defendant was charged with burglary (Pen. Code, § 459), three counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of criminal threats (Pen. Code, § 422). He was also charged with personal use of a firearm in connection with each of the assaults. (Pen. Code, § 12022.5, subd. (a)(1).)
After all the evidence was presented, the court dismissed the burglary count. Defendant was thereafter convicted of the remaining charges and the jury found true the firearm use enhancements.
Defendant was sentenced to the middle term of three years on one assault charge, plus a middle term enhancement of four years for the firearm use. He received a one-third middle term of one year for each of the other assaults, to run consecutively. The firearm use enhancements on those counts were dismissed. On the criminal threats count, defendant received a middle term of two years, stayed pursuant to Penal Code section 654.
Discussion
I
Doyle Error
Defendant contends the prosecution violated his due process rights during cross-examination and argument by improperly alluding to his failure to give his version of the events prior to trial. Defendant argues these references penalized him for invoking his constitutional right to remain silent. We find no error.
Both federal and state courts have held the prosecution’s use of a defendant’s silence after being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda) is a violation of federal due process. (People v. Champion (2005) 134 Cal.App.4th 1440, 1447.) In Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle), the United States Supreme Court said: “The warnings mandated by [Miranda] . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. . . . Miranda warnings contain no express assurance that silence will carry no penalty, [however,] such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Id. at pp. 617-618 [49 L.Ed.2d at pp. 97-98].)
Defendant takes issue with the following portion of his cross-examination:
“Q. Mr. Mack, this is the first time you’ve told your story in open court, is that correct?
“A. Yes.
“Q. At the preliminary hearing, you didn’t testify, is that right?
“A. No.
“MR. MULLER [defense counsel]: Objection, your Honor.
“THE COURT: Sustained.
“Q. (By Mr. Ho [the prosecutor]): Now, Mr. Mack, when you were arrested on this case and you were arrested by the police, did you tell the police what had happened?
“MR. MULLER: Objection, your Honor, this is--can we approach?
“THE COURT: What did you ask, sidebar?
“MR. MULLER: Sidebar.
“(At the bench, off the record discussion was held.)
“Q. (By Mr. Ho): Mr. Mack, you’ve sat here in the trial and had an opportunity to hear what [R.P.] had to testify to, isn’t that right?
“A. Yes, I did.
“Q. And you also heard [E.S.] testify?
“A. Yes.
“Q. And [M.G.]?
“A. Yes.
“Q. And [A.B.]?
“A. All of ‘em.
“Q. All of the witnesses in this trial. You sat here and heard them testify?
“A. Yes.
“Q. And after listening to all of them testify, you’ve had an opportunity to sit down and think what story it is that you’re gonna tell this jury, isn’t that right?
“MR. MULLER: Objection, argumentative.
“THE COURT: Sustained.
“Q. (By Mr. Ho): You’ve had an opportunity to think about what you’re gonna tell this jury, isn’t that right?
“A. I have knew [sic] this for five months. I lived for this day for five months, man.
“Q. And you’ve had five months to think about what you’re gonna say, isn’t that right?
“A. I didn’t have to think about what I’m gonna say.
“MR. MULLER: Objection.
“THE COURT: Overruled.
“Q. (By Mr. Ho): Let me ask a question, you’ve had five, five, six months to think about what you’re gonna say, isn’t that right?
“A. I’ve had five, six months to think about the truth. . . .”
The foregoing testimony may be arranged into three categories: (1) that concerning defendant’s failure to reveal his side of the story to the police following his arrest; (2) that concerning defendant’s failure to testify at the preliminary hearing; and (3) that concerning the fact defendant had five or six months and heard all the other witnesses before testifying. As we shall explain, none of these categories gives rise to a constitutional violation under the circumstances of this case.
Regarding the first category, the record does not show whether defendant had ever been read his Miranda rights. In Fletcher v. Weir (1982) 455 U.S. 603 [71 L.Ed.2d 490], the United States Supreme Court explained that Doyle applies only where Miranda warnings are first given. The court stated: “In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.” (Id. at p. 607 [71 L.Ed.2d at p. 494].) The People request that we take judicial notice of records from another prosecution of defendant which suggest he may have been in custody on that matter at the time he was arrested in this case and, therefore, may not have been read Miranda rights in the present matter. We decline the People’s request, because the inference the People seek to make is too speculative. Nevertheless, absent evidence in this record that defendant was ever even questioned by the police, let alone given Miranda warnings, defendant’s failure to inform the police of his side of the case is fair game. (See People v. Delgado (1992) 10 Cal.App.4th 1837, 1842-1843.)
But even assuming defendant had been read Miranda rights, the prosecutor asked only one question in the first category--whether defendant told the police what happened when he was arrested. Defense counsel objected, and the court conducted a sidebar conference. Following the unreported conference, the prosecutor asked a different question without receiving an answer to his original question. Inasmuch as defendant never answered the question, the jury was never informed whether he said anything to the police.
In the second category, the prosecutor asked two questions--whether this was the first time defendant had told his story in court, to which he answered yes, and whether defendant testified at the preliminary hearing, to which he answered no. Defense counsel objected to the second question, and his objection was sustained.
In order to establish a violation of due process under Doyle, the defendant must show two things: (1) “the prosecution inappropriately used his postarrest silence for impeachment purposes” and (2) “the trial court permitted the prosecution to engage in such inquiry or argument.” (People v. Champion, supra, 134 Cal.App.4th at p. 1448; see Greer v. Miller (1987) 483 U.S. 756, 765-766 [97 L.Ed.2d 618, 630-631]; People v. Evans (1994) 25 Cal.App.4th 358, 368.) Even if the prosecutor’s questions in the second category were inappropriate under Doyle, defendant cannot satisfy the second requirement for Doyle error. In sustaining defendant’s objection to the second question, the trial court did not permit the prosecution to engage in improper inquiry.
The final category of testimony includes everything that followed the sidebar conference. That testimony concerned the fact defendant had five or six months and was able to listen to all the other witnesses before giving the jury his version of what happened in the apartment. Standing alone, this testimony does not concern defendant’s silence prior to trial. Defendant enjoyed those advantages whether or not he had spoken about the case earlier. Of course, those schooled in the law know that if defendant had spoken earlier and given a different version of the facts, he would most likely have been impeached with his earlier, inconsistent statements. However, the jury did not know this. All the jury knew was what it was told, i.e., that defendant had five or six months to formulate his testimony and was able to listen to all the other witnesses first. The jury was not told whether defendant had made any earlier, inconsistent statements or whether he had ever invoked his right to remain silent. The jury was instructed to decide the facts based only on the evidence presented and not on anything the attorneys say or anything that may be inferred from the attorneys’ questions. We assume the jury followed the instructions given by the court. (People v. Adcox (1988) 47 Cal.3d 207, 253.)
At any rate, defendant only objected to two of the questions following the sidebar conference and the first objection was sustained. The court overruled the second question, which read: “And you’ve had five months to think about what you’re gonna say, isn’t that right?” However, by that time, defendant had already acknowledged he listened to all the other witnesses before testifying and had five months to think about what he was going to say. Thus, the court did not permit the prosecution to engage in the inquiry to which defendant objects. Defendant did so himself.
Defendant argues further objection would have been futile, because the trial court either overruled his objection to the question about whether defendant told his story to the police or the court sustained the objection but the prosecutor ignored the court’s ruling. Defendant misreads the record. Although the ruling on defendant’s objection to the question about speaking to the police is not contained in the record, it is clear the prosecutor changed course after the sidebar conference. The prosecutor did not get an answer to his question and immediately started questioning defendant about a different subject, i.e., whether defendant had been able to hear all the other testimony before testifying himself. There is no reason to believe an objection to these questions, if they had been improper, would have been futile.
Defendant also contends he was denied due process by virtue of the prosecutor’s argument to the jury. However, as with the third category of testimony, that argument made no reference to defendant’s silence prior to trial. For example, the prosecutor argued: “[Defendant] got up here on the stand and he had an answer for everything. And clearly, he had thought about what he was gonna say. He’s had five months to think about what he was gonna say, how he was gonna say it and he’s had an entire several days sitting and watching these witnesses testify, and hearing what they were gonna say so that he could get--and figure out where his plan of attack was, how he was gonna mold his story to come up with the defense. He’s slick and he’s good.”
There is nothing objectionable in the foregoing argument. Nor is there anything objectionable in the prosecutor’s references to the fact that the testimony of many of the witnesses was consistent with their earlier statements to police and preliminary hearing testimony. This was reflected in the evidence presented to the jury. Defendant is not entitled to have this evidence ignored by the prosecution in order to give him a false aura of relative credibility.
Defendant contends the prosecution nevertheless violated Evidence Code section 913. It reads, in relevant part: “(a) If in the instant proceeding or on a prior occasion a privilege is or was exercised not to testify with respect to any matter . . ., neither the presiding officer nor counsel may comment thereon . . . .”
Defendant cites nothing to suggest this statutory provision expands on his constitutional due process rights. The two cases he cites in support, People v. Lindsey (1988) 205 Cal.App.3d 112 and People v. Conover (1966) 243 Cal.App.2d 38, do not even mention Evidence Code section 913, but instead analyze the matter under due process.
Furthermore, the prosecutor made no “comment” on defendant’s exercise of the privilege not to testify. Questioning defendant about whether he testified earlier is not a “comment” on defendant’s exercise of the right to remain silent. As for the prosecutor’s argument to the jury, this contained no reference to defendant’s earlier failure to testify, as we have already explained.
II
CALCRIM No. 224
The jury was instructed pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 224 as follows:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you may accept only reasonable conclusions and reject any that are unreasonable.”
Defendant contends this instruction, and in particular the middle sentence of the second paragraph, improperly couches the jury’s choice in terms of whether the circumstantial evidence points to his being guilty or innocent, rather than guilty or not guilty. Defendant argues this terminology lowered the prosecution’s burden of proof by allowing it to find him guilty if it believed he is not innocent.
In People v. Wade (1995) 39 Cal.App.4th 1487, at pages 1493-1494, we rejected a similar challenge to the predecessor of CALCRIM No. 224, CALJIC No. 2.01. Nevertheless, defendant cites People v. Han (2000) 78 Cal.App.4th 797 (Han), where the defendant raised this argument in connection with the rejection of a proposed modification of CALJIC No. 2.01 to substitute a lack of finding of guilt for innocence. The Court of Appeal agreed the modification would have made the instruction more accurate, explaining: “We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.” (Han, supra, at p. 809.) However, the court went on to conclude the defendant was not harmed because other instructions, primarily the reasonable doubt instruction, prevented any confusion. (Ibid.)
We cannot agree with the Han court’s criticism of CALJIC No. 2.01. For a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence fail to prove his guilt beyond a reasonable doubt. In other words, a not guilty verdict is based on the insufficiency of the evidence of guilt.
However, when considering isolated items of evidence, the issue is different. A particular item of evidence may fall into one of three categories: it may tend to prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or innocence. If the evidence falls into the latter category, it does not support either a guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and should be excluded. Thus, if a particular item of evidence is relevant to the jury’s ultimate determination, it is relevant only because it tends to prove either guilt or innocence. CALCRIM No. 224 recognizes this distinction.
At any rate, other instructions given by the court explained the presumption of innocence and the People’s burden to prove defendant guilty beyond a reasonable doubt. The correctness of jury instructions must be determined from the entire charge of the court, not from parts of a single instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538-539, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754.) Considered as a whole, the instructions did not reduce the prosecution’s burden of proof.
III
CALCRIM No. 370
The trial court instructed the jury with CALCRIM No. 370 on the use of motive evidence. It read: “The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [¶] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
Defendant contends this instruction erroneously implies the absence of motive may be considered by the jury only if proven by him. According to defendant, “[b]y implying that the defendant is obligated to ‘show’ he or she is not guilty, CALCRIM No. 370 improperly shifts the burden of proof.”
Defendant misreads the instruction. It says nothing about who must prove motive or lack thereof. The first sentence says the People are not required to prove motive. The rest of the instruction says nothing about the defendant being required to prove lack of motive or to show he is not guilty. Nor can such requirements be implied from the instruction. The remainder of the instruction merely informs the jury how it may use motive evidence, if any is presented. There was no burden shifting.
Defendant next contends CALCRIM No. 370 effectively informed the jury motive alone might support a guilty verdict. This argument is based on the statement that motive “‘may be a factor tending to show that the defendant is guilty.’” Defendant argues this instruction is the only one that identifies a single factor that may tend to establish guilt.
Defendant’s argument is belied by the language of the instruction as a whole. CALCRIM No. 370 says that motive “may be a factor tending to show that the defendant is guilty.” (Italics added.) Saying motive is a factor that may tend to prove guilt is a far cry from saying it is a factor that alone may prove guilt. The fact that evidence tends to prove guilt merely establishes its relevance on the issue.
Defendant next argues “[i]nstructing the jury that the prosecution has introduced ‘evidence “tending to prove” appellant’s guilt carries the inference that the People have, in fact, established guilt.’” According to defendant, “[t]his instruction allows the jury to find guilt without finding that a crime was committed, so long as the defendant had the motive to so act.”
However, nowhere does the instruction inform the jury the prosecution has introduced evidence tending to prove defendant’s guilt. Rather, it says “[h]aving a motive may be a factor tending to show that the defendant is guilty.” (CALCRIM No. 370.) In other words, motive, if it has been established, may tend to prove guilt. It does not say motive has been established. Furthermore, as explained above, saying that such a factor may tend to prove guilt is a far cry from saying the prosecution has proven guilt.
IV
CALCRIM No. 372
The jury was instructed with CALCRIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
Defendant contends this instruction was inappropriate under the circumstances of this case, because there was no direct evidence he left the apartment in order to avoid observation or arrest. On the contrary, defendant argues, the only evidence was that he left the crime scene because he had planned all along to drive to Reno to gamble. We are not persuaded.
Penal Code section 1127c requires a flight instruction if evidence of flight is relied upon as tending to prove guilt. “A flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs . . . logically permits an inference that his movement was motivated by guilty knowledge.” (People v. Turner (1990) 50 Cal.3d 668, 694.)
Defendant argues there are no circumstances of his departure that would allow an inference his movement was motivated by guilty knowledge. We disagree. The jury was not required to accept the testimony of defendant or his good friend that they planned in advance to go to Reno to gamble. Nor was the jury required to believe defendant’s testimony that he returned to Sacramento on Monday and drove M.G. to work. M.G. denied receiving a ride from defendant on that Monday. This left the jury with evidence that defendant went to the apartment, remained for no more than 10 minutes, and then immediately departed for Reno, a significant distance away. There was also evidence that defendant departed the apartment without any of the items he supposedly went there to get. Finally, the victims testified defendant asked for their cell phones just before departing, suggesting he may have been trying to keep them from calling for help until he got out of town.
Essentially, the jury was left with a choice: accept defendant’s evidence that he planned on going to Reno all along and was not trying to avoid arrest, or reject that evidence and conclude the circumstances of defendant’s departure permit an inference of a guilty conscious. CALCRIM No. 372 left this choice to the jury. It told the jury that if it found defendant fled the scene, rather than merely departing for innocent reasons, “it is up to [them] to decide the meaning and importance of that conduct.”
At any rate, any error in giving the instruction was harmless. Considerations of flight figured only briefly in the prosecutor’s argument, where he said: “And when the officers arrived, the Defendant’s not there. He left. He fled after he had committed the crime because he didn’t want to be there when they called 911.” The defense relied on testimony that defendant had an innocent reason for going to the apartment. If the jury rejected that evidence, it is not likely it would have accepted his explanation that he planned on going to Reno all along. The question before the jury was one of credibility between the victims and defendant. The flight instruction left it to the jury to decide if there had been flight and what to make of it. We see no reasonable probability the flight instruction had any part in the verdict. (See People v. Turner, supra, 50 Cal.3d at p. 695; People v. Watson (1956) 46 Cal.2d 818, 836.)
V
CALCRIM No. 1300
The instruction on the crime of making criminal threats, CALCRIM No. 1300, includes as an element that “[t]he defendant intended that his statement be understood as a threat.” Defendant contends this language “fails to state that the defendant must have specifically intended that his statement be understood as a threat.” He cites Penal Code section 422, which defines the crime as follows: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . shall be punished . . . .” Defendant argues the omission of the word “specifically” in front of the word “intended” in the instruction removed the specific intent element from the offense and risked the jury using a general intent to support a conviction.
Defendant failed to object to this instruction or request clarification of the intent requirement. Failure to object to instructional error waives the objection on appeal unless the defendant’s substantial rights are affected. (Pen. Code, § 1259; People v. Rodrigues (1994) 8 Cal.4th 1060, 1192-1193.) “Substantial rights” are equated with error resulting in a miscarriage of justice under People v. Watson, supra, 46 Cal.2d 818. (People v. Arredondo (1975) 52 Cal.App.3d 973, 978.)
At any rate, defendant’s argument is based on a faulty understanding of the nature of general and specific intent. General intent exists where the defendant intentionally does some act or fails to do some act; specific intent exists where, in doing the act or failing to do the act, the defendant intends a particular result. For example, under the criminal threats statute, the defendant must “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person.” (Pen. Code, § 422.) This is a general intent to make a qualifying threat. However, the crime also requires a specific intent “that the statement . . . is to be taken as a threat.” (Ibid.) In other words, in addition to intending to make the statement, the defendant must intend that the statement be taken as a threat.
In order to instruct a jury that a particular crime requires a specific intent, it is not really helpful simply to say the defendant must have a specific intent. This is a term of art the jury may not understand. Rather, it is preferable that the jury be informed what particular intent is required. This is what CALCRIM No. 1300 does. As given here, CALCRIM No. 1300 listed the elements of the crime as follows:
“1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to [M.G.];
“2. The defendant made the threat to [M.G.] orally;
“3. The defendant intended that his statement be understood as a threat;
“4. The threat was so clear, immediate, unconditional, and specific that it communicated to [M.G.] a serious intention and the immediate prospect that the threat would be carried out;
“5. The threat actually caused [M.G.] to be in sustained fear for her own safety;
“AND
“6. [M.G.]’s fear was reasonable under the circumstances.”
The first element in this list requires a general intent to make a threat of death or great bodily injury. The third element requires a specific intent that the threat be taken as such by the recipient. Thus, in order to find defendant guilty of this crime, the jury was required to find he made a threat and did so with the intent that his statement be understood as a threat. It would have added nothing to insert the word “specific” into this third element.
VI
Cumulative Error
Defendant contends the cumulative effect of errors in this matter requires reversal of his convictions. However, having found no errors, we have no occasion to consider cumulative impact.
Disposition
The judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.