Opinion
B159572.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. ADOLFO R. PERALTA, Defendant and Appellant.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Peggie Bradford Tarwater, Deputy Attorneys General, for Plaintiff and Respondent.
Adolfo Peralta appeals from the judgment entered after a jury convicted him of attempted rape (Pen. Code, §§ 664/261, subd. (a)(2)) and other related charges. For the reasons set forth below, we reverse the judgment as to the charge of simple kidnapping (Pen. Code, § 207, subd. (a)) because it was a lesser included offense of his conviction for kidnapping to commit rape. (Pen. Code, § 209, subd. (b)(1).) In all other respects, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 864 P.2d 103.)
Late in the evening of July 19, 2001, Adolfo Peralta followed M. J. as she walked along Venice Boulevard on her way home from a local market. Peralta tried to attract M. J.s attention by running, leaping, and whistling. He also spoke to her in words she did not understand. M. J. told Peralta to get away from her and crossed the street back and forth in an attempt to evade him. Peralta continued to follow M. J. until she approached her apartment. He grabbed M. J., beat her and threw her to the ground, then dragged her 50 feet to a nearby alley. M. J. screamed and fought back. Once in the alley, Peralta ripped open M. J.s blouse, choked her and beat her head on the pavement. He licked and kissed M. J.s left breast and touched her body. After Peralta pulled down M. J.s pants and underwear, she felt Peraltas erect penis against her leg and also felt his hips move against her three times. His penis did not enter her vagina, however.
Tracey Arnsperger lived in an apartment that overlooked the alley. Alerted by M. J.s screams, Arnsperger phoned the police. Los Angeles police officer David Romero and others arrived within minutes and saw Peralta on top of M. J., whose legs were splayed. The two appeared to be struggling. When Peralta saw the officers, he reached toward his crotch, as if to place something in his pants. From Arnspergers window, she actually saw appellants hand move as if he were zipping his pants. Peralta turned and walked away from the officers. M. J. screamed that Peralta had tried to rape her and Peralta was arrested. Another eyewitness, named Beal, also saw M. J. and a man who resembled Peralta struggling in the alley. Neither Arnsperger, Beal, nor the police saw anyone else in the alley. A DNA sample of saliva taken from M. J.s left breast matched Peraltas DNA to an extremely high level of probability, with the chances that the DNA belonged to someone else pegged at just one in 230 billion.
Peralta was later convicted of attempted forcible rape (Pen. Code, §§ 664/261, subd. (a)(2)), assault with intent to commit rape ( § 220), simple kidnapping ( § 207, subd. (a)) and kidnapping in order to commit rape ( § 209, subd. (b)(1)). Peralta was given a life sentence for the kidnapping to commit rape charge, along with a concurrent four-year sentence on the assault with intent to rape charge. A three-year term was imposed for the attempted rape charge and a five-year term was imposed for the simple kidnapping charge, but both terms were stayed.
All further section references are to the Penal Code.
Peralta was charged with, but acquitted of, assault by means likely to produce great bodily injury. ( § 245, subd. (a)(1).)
In addition to the evidence described above, Peralta testified at his trial, contending that he saw another man, who wore horn-rimmed glasses, arguing and fighting with M. J. as they walked down the street. According to Peralta, he followed the couple into the alley and was attacked by the other man when he tried to intercede. The other man kicked Peralta in the groin and took his money. Peralta testified that he tried to help M. J. off the ground, but said she was too heavy, causing him to fall on top of her. He was sobbing with pain at the time, which might explain why his DNA ended up on M. J.s breast. M. J. screamed and pushed at appellant, who was walking away, holding his testicles, as the police arrived. Peralta was arrested by Officer Romero and taken to the police station for booking. He was interviewed the next day by Detective Dennis Moeller but did not tell any police officer that someone else had attacked M. J.
Peraltas live-in girlfriend, Reyna Peralta (Reyna), testified that she heard M. J. screaming "Let go of me." Reyna saw M. J. and a man with long-hair tied in a ponytail. Reyna had seen them together before. At the time, Peralta was seated on a wall inside the porch area of their apartment building. Maria Hernandez lived in the same building as did Peralta and Reyna and was also their friend. Hernandez and her daughter testified that they also saw M. J. and the long-haired man fighting. Another neighbor heard a woman screaming that night and saw a man pursuing her. Peralta was sitting on the porch at the time, according to the neighbor.
The primary issues on appeal arise from the prosecutions cross-examination of Peralta about his failure to tell the police that another man attacked M. J. According to Peralta, this violated the rule against commenting on a defendants invocation of his right to silence as first announced in Doyle v. Ohio (1976) 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (Doyle). The prosecutions use of that evidence when arguing the case to the jury was also misconduct, he contends. Peralta also asserts that his kidnapping conviction under section 207 must be reversed because it is a lesser included offense of his kidnap for rape conviction ( § 209) and that the courts imposition of a concurrent four-year sentence for assault with the intent to rape should have been stayed instead under section 654.
DISCUSSION
1. Claim of Doyle Error
The rule of Doyle prohibits the prosecution from impeaching a defendants trial testimony with evidence of the defendants silence after being arrested and advised of his constitutional right to silence under Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (Miranda). (People v. Earp (1999) 20 Cal.4th 826, 856, 978 P.2d 15 (Earp).) The rationale for the rule is the fundamental unfairness of trying to draw an adverse inference from a defendants silence after assuring the defendant that silence is his constitutional right. (Fletcher v. Weir (1982) 455 U.S. 603, 606, 71 L. Ed. 2d 490, 102 S. Ct. 1309.)
No Miranda violation is claimed.
Peraltas brief contends that Doyle error occurred because after his arrest "he was advised of his Miranda rights and declined to speak to the officers. Nevertheless, during cross-examination of appellant, the prosecutor elicited evidence that appellant did not convey his version of the events to the officers. On trial counsels objection, the trial court precluded the prosecution from continuing the cross-examination on this subject. However, no specific limiting instruction was given to inform the jury they could not consider appellants invocation of his right to remain silent." (Footnotes and record citations omitted.) According to Peraltas brief, the objectionable questioning occurred at pages 504-505 of the reporters transcript. These pages begin with Peralta being asked whether he described the other man to Officer Romero. The following colloquy ensued.
"A. No. I told him or her that a man had hit me, a man had hit me, had taken my money. And nobody replied. They just pushed me, pushed my face against the metal bars, and they had my hands behind my back. I was handcuffed.
"Q. So I take it thats a no, you did not describe the man who attacked you?
"A. I was never asked.
"Q. Did you ever think about saying it to anybody?
"A. Yes, but nobody listened to me."
"Q. Did you mention the description to Detective Moeller . . . ?
"A. No. He never asked me. He never asked me about the problem. At the end he said that, if I wanted to talk about the case — he asked me if I wanted to talk about the case.
"But I said that I first wanted to see my attorney.
"Q. You didnt think about giving your story then? You didnt think about giving your story right then and there, because its important?"
This last question prompted a defense objection, which was sustained. The prosecutor then asked, "You never told this to Detective Moeller when given the chance; is that correct?" The court on its own stopped the prosecutor from further inquiry in that direction, then told the jury, "Ladies and gentlemen I am not going to go into any explanation on this, but there are certain rulings the court must make. [P] And when we have gone into an area far enough, in my judgment, to go further — the best approach I have is to exercise my judgment. [P] Its not that [the prosecutor] or [defense counsel] has done anything wrong here. Its one of the things I have to do." The prosecutors cross-examination then turned to Peraltas version of events.
Peralta has not specified whether his claim of error is based on the questions about his silence about the other man as to Officer Romero, Detective Moeller, or both. However, his description of the objectionable portions of the record is specifically tied to his trial lawyers and the courts own objections. Because the only portions of the record cited by Peralta which fit that description concern Peraltas conversation with Moeller, we believe that is the true focus of his appellate argument.
Were we to consider the questions about Peraltas failure to mention the other man to Officer Romero, we would still affirm. First, Peralta and Romero were both questioned earlier about this topic without objection and no objection was made to the questions asked on page 504 of the transcript. As a result, the claim of Doyle error was waived. (People v. Hughes (2002) 27 Cal.4th 287, 332.) Even on the merits, there was no error. As part of his opening statement, Peraltas lawyer told the jury that the evidence would show the police heard about another man but disregarded what they were told. Peralta testified through a Spanish language interpreter. He said on direct examination that he spoke little English. Asked by his lawyer whether any of the officers who arrived at the alley spoke to him in Spanish, he answered no. At the start of his cross-examination, Peralta claimed that he told the officer in Spanish about another man. Even though Officer Romero spoke to Peralta in Spanish, this created the impression that his attempt to alert the police about the true attacker was ignored and formed the cornerstone of his defense. Because Peralta took the stand to give this version of events, the prosecutor was justified in questioning Peralta about whether or not he told Romero about that other man. (People v. Austin (1994) 23 Cal.App.4th 1596, 1612, disapproved on another point in People v. Palmer (2001) 24 Cal.4th 856, 861, 867; People v. Thompson (1986) 183 Cal. App. 3d 437, 441-442, 228 Cal. Rptr. 304.)
Before a Doyle violation can be found, the prosecution must first make use of the defendants postarrest silence, followed by the courts permission of that use. Improper use of a defendants postarrest silence can occur either by questioning or by reference during closing argument. Court permission of the use usually occurs when the court overrules a defense objection, sending the jury a clear signal that the prosecutions inquiry is legitimate. (People v. Evans (1994) 25 Cal.App.4th 358, 368 (Evans).) There is no Doyle error if the defendant is questioned about his silence before being advised of his Miranda rights. (Earp, supra, 20 Cal.4th at pp. 856-857.) Evaluating the disputed portions of the record cited by Peralta against these rules leads us to conclude that there was no Doyle error.
First, the record is unclear as to when Peralta was advised of his Miranda rights. Peralta volunteered the first possible reference to his Miranda rights when he told the prosecutor that he decided to speak with a lawyer, not with Moeller, when Moeller asked him about the case "at the end" of their interview. The first and only direct evidence that Peralta was in fact ever Mirandized came shortly after on redirect examination, when he told his lawyer that "at some point" he was advised of his rights to remain silent and obtain a lawyer. Given that all presumptions and intendments favor the courts judgment, Peralta has the burden of supplying an adequate record to show that error occurred; any ambiguities in the record will be resolved against him. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423; People v. Green (1979) 95 Cal. App. 3d 991, 1001, 157 Cal. Rptr. 520.) On this record, the most we can derive from the evidence is that Peralta received his Miranda warnings at the end of his interview with Moeller, when the detective asked Peralta to talk about what happened. Peralta declined that invitation because he first wanted to speak with a lawyer. Cross-examination about Peraltas silence was therefore proper, at least up to that point in the interview. (Earp, supra, 20 Cal.4th at pp. 856-857 [no Doyle error regarding pre-Miranda warning silence].)
That leaves only the prosecutions questions about why Peralta did not talk to Moeller at the time Peralta decided to remain silent. While the questions appear to invade territory made off limits by Doyle, the court sustained Peraltas objection to the questions, then effectively sustained one of its own when the prosecutor tried to press the point. As a result, the second requirement for Doyle error was not satisfied. (Evans, supra, 25 Cal.App.4th at p. 368 [court permission of the improper questioning typically occurs when the court overrules a defense objection. (Italics added.].)
Peralta also contends that the court should have instructed the jury not to consider his postarrest silence for any purpose. Because we hold that there was no Doyle error, the issue is moot. Even if there had been Doyle error, however, Peralta waived the limiting instruction because the record does not show — and he does not contend — that he ever requested such an instruction.
2. Prosecutorial Misconduct
A prosecutor commits misconduct by using deceptive or reprehensible methods of persuasion. The defendant need not show the prosecutors bad faith. (People v. Barnett (1998) 17 Cal.4th 1044, 1133, 954 P.2d 384.) Peralta contends the prosecutor committed misconduct by arguing his postarrest silence to the jury.
Peraltas lawyer argued to the jury that Peralta had the right to remain silent and was not given much of a chance to tell what happened. The prosecutor responded to this in his closing argument. After first telling the jury that Peralta had the right to remain silent, the prosecutor said: "[Defense counsel] asked you about putting yourself in that position. I am asking you to do the same. Doesnt make a difference who you are or where you are from, what your background is; if you are innocent of anything and if there is someone involved in a case and you have been wrongly accused or arrested for that case, youre going to tell people right away, particularly the authorities right away. [P] You would do so when youre arrested, you would do when youre taken down to the station and pictures are taken of you, you would do so the next day when the police come to see you, where another officer speaks Spanish. [P] Thats your chance. You dont give false information about your address. You dont give false information about your age. [P] You tell the officers whats happened, what really happened now that you have had a chance to think about it a whole day. [P] You dont stay silent or say nothing, like Mr. Peralta has done throughout this case. He said nothing."
The latter portion of this passage appears to violate Doyle because it comments on Peraltas failure to talk to Detective Moeller, sweeping within its reach the period after which the record shows Peralta was advised of his Miranda rights and declined to talk about what happened. Peralta concedes that his lawyer never objected to these remarks. While the general rule requires a timely objection and request for a curative instruction to preserve a claim of prosecutorial misconduct (People v. Fairbank (1997) 16 Cal.4th 1223, 1252, 947 P.2d 1321), Peralta contends that the rule does not apply to Doyle error because an admonition or corrective instruction have been held to be ineffective. The cases he cites for this proposition appear to be either outdated or inapplicable, however.
Although Peralta relies on People v. Crandell (1988) 46 Cal.3d 833, 251 Cal. Rptr. 227, 760 P.2d 423 (Crandell ), that court in fact stated that the failure to object might well be a proper alternative ground for rejecting a claim of Doyle error. (Id. at p. 879, fn. 14.) People v. Fabert (1982) 127 Cal. App. 3d 604, 610-611, 179 Cal. Rptr. 702 (Fabert), and People v. Galloway (1979) 100 Cal. App. 3d 551, 561-562, 160 Cal. Rptr. 914 (Galloway), are also inapplicable. The Galloway court considered whether a prosecutors Doyle violation was harmless error. Among the factors which led the court to deem the error prejudicial was the absence of a curative instruction. The court went on to note in dicta that some federal courts had expressed reservations about the effectiveness of curative instructions. (Id. at pp. 561-562.) It then cited People v. Farris (1977) 66 Cal. App. 3d 376, 390, 136 Cal. Rptr. 45, which held that an admonition by the court in fact cures any Doyle error, concluding that the absence of such an instruction at Galloways trial made the Doyle error prejudicial. (Galloway, supra , 100 Cal. App. 3d at p. 562.) The court in Fabert considered whether a trial courts curative instruction rendered Doyle error harmless where the prosecution introduced evidence of the defendants assertion of her right to remain silent in an effort to show her alibi was fabricated. Although the Fabert court generally agreed with Galloways comments about the doubtful efficacy of curative instructions where Doyle error has occurred, it held the error was prejudicial because the trial courts instructions simply limited the use of the improper evidence, while other instructions directed the jury to consider the evidence when evaluating the credibility of the defense. (Fabert, supra, 127 Cal. App. 3d at pp. 610-611.) In other words, the so-called "curative" instructions were not curative at all and likely enhanced the Doyle error.
Crandell was overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 365.
Neither Fabert nor Galloway, both court of appeal cases, stand for the proposition that a claim of prosecutorial misconduct founded on Doyle error is preserved in the absence of a timely objection. As noted above, in Crandell our Supreme Court suggests that an objection is required. That requirement holds in the analogous area of Griffin error, which applies when the Fifth Amendment right to silence is jeopardized by prosecutorial comment on the defendants failure to testify at trial. (People v. Lewis (2001) 25 Cal.4th 610, 670 [failure to object or request admonitions waived Griffin error]; People v. Redmond (1981) 29 Cal.3d 904, 910, 176 Cal. Rptr. 780, 633 P.2d 976; see Austin, supra, 23 Cal.App.4th at p. 1611 [referring to the Griffin/Doyle line of cases].) We see no reason why the same rule should not apply to Doyle error.
Griffin v. California (1965) 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229.
Peralta also complains of a portion of the prosecutors opening argument, where he discusses evidence of Peraltas calm demeanor after being arrested and driven to the police station: "And during this time period, Mr. Peralta says nothing at all about his case, how he got there, why he was there, what he was doing, nothing." As discussed above, there was no Doyle error in regard to Peraltas failure to mention the other man to Officer Romero. (See fn. 4, ante.) Finally, any misconduct claim was waived by the absence of a timely objection.
3. Any Doyle Error Was Harmless
The Chapman harmless error standard applies to violations of Doyle: we will reverse unless the error was harmless beyond a reasonable doubt. (Crandell, supra, 46 Cal.3d at p. 879; People v. Eshelman (1990) 225 Cal. App. 3d 1513, 1522, 275 Cal. Rptr. 810.) Assuming for discussions sake only that Doyle error and Doyle-related prosecutorial misconduct occurred, it was harmless beyond a reasonable doubt. Peralta was positively identified by the victim and by independent witness Arnsperger, who saw the whole attack and never saw a third person in the alley. The police found Peralta atop M. J., her legs pushed apart. Peralta walked away, zipping his pants as he did. The odds that the DNA sample retrieved from M. J.s breast belonged to anybody other than Peralta were astronomical. In contrast, Peralta told a dubious tale of having followed M. J. and her attacker, being attacked himself after trying to intercede, then falling atop M. J. in an attempt to help her up, where his tears or saliva apparently fell onto her breast. His story was supported by his girlfriend and other acquaintances, but only to the extent they saw Peralta sitting on the porch as another man went by, fighting with M. J. On this record, we hold that any error was harmless beyond a reasonable doubt.
4. Simple Kidnapping As Lesser Included Offense Of Kidnap For Rape
Peralta contends and the prosecution concedes that the kidnapping conviction under section 207 must be reversed because it is a lesser included offense of the kidnapping for rape conviction under section 209. (See People v. Jackson (1998) 66 Cal.App.4th 182, 189-190 [simple kidnapping is a lesser included offense of kidnapping to commit robbery, sodomy or oral copulation].
We will therefore reverse the judgment as to the section 207 conviction.
5. Failure To Stay Assault With Intent To Rape Sentence
Peralta received a life sentence for the kidnapping for rape charge (§ 209, subd. (b)(1)) and a concurrent four-year term on the assault with intent to rape charge. (§ 220.) Peralta contends that the courts failure to stay the sentence on the assault charge violated section 654s proscription against multiple punishments for criminal acts committed as part of an indivisible course of conduct. Because the trial court made no express finding on this issue, we will support the courts implied finding that section 654 was inapplicable if there is substantial evidence to support such a finding. (People v. Nelson (1989) 211 Cal. App. 3d 634, 638, 259 Cal. Rptr. 549.) The evidence showed that Peralta grabbed M. J. by the hair and dragged her into the alley. Once there, he began to beat her as he tore her clothes and tried to rape her. These were separate acts which shared separate objectives, rendering section 654 inapplicable. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1157-1158, disapproved on another ground by People v. Rayford (1994) 9 Cal.4th 1, 12, 884 P.2d 1369.)
DISPOSITION
For the reasons set forth above, the judgment is reversed, but only as to the conviction for simple kidnapping under section 207, subdivision (a). The matter is remanded to the clerk of the superior court with directions to amend the abstract of judgment accordingly, then forward a copy of the corrected abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: COOPER, P.J., and BOLAND, J.