P. v. Gardner

Filed 10/26/06 P. v. Gardner CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed in part, reversed in part, and remanded for resentencing.

After a joint trial, the jury convicted Michael David Gardner of unlawfully driving a vehicle (auto theft) in violation of Vehicle Code section 10851, subdivision (a) (count 1), receiving stolen property (Pen. Code,^[1] § 496, subd. (a); count 3), evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 4), and

resisting a peace officer in the discharge of his duties (§ 148, subd. (a)(1); count 6, a misdemeanor). The jury found codefendant Joyanna Arce guilty of receiving stolen property (count 3) and possessing a controlled substance, methamphetamine (meth) (Health & Saf. Code, § 11377, subd. (a); count 5.)^[2] In a bifurcated proceeding, Gardner admitted the truth of the section 666.5, subdivision (a) allegation to count 1 for sentencing purposes, he was ineligible for probation (§ 1203, subd. (e)(4)), and he had served three prior prison terms (§§ 667.5, subd. (b), 668). The trial court sentenced Gardner to prison for a total term of six years, eight months, and, among other things, ordered him to pay $6,805.42 in victim restitution. (§ 1202.4, subd. (f).)

Gardner appeals, contending the trial court prejudicially erred in admitting Arce's pretrial hearsay statements over his objections at trial, there was prejudicial Griffin^[3] error when Arce's counsel commented on his failure to testify at trial, he was denied the effective assistance of counsel when his own counsel failed to object to such Griffin error, and the victim restitution order must be modified to exclude lost wages incurred by the victim due to attending court proceedings.

We shall find that the trial court erred in admitting Arce's pretrial statements without a limiting instruction, that such error is harmless as to count 1, but prejudicial to count 3 in light of the Griffin error, which we find by itself harmless. We find no merit in Gardner's other assertions. We therefore conclude count 3 must be reversed and Gardner's remaining convictions affirmed. Accordingly, we remand for resentencing.

FACTUAL AND PROCEDURAL HISTORY

Shortly after 8:00 p.m. on May 14, 2005, Rex Carpenter, Jr. discovered his family home in San Diego had been burglarized and called the police. Carpenter reported that his 2004 black Chevrolet Avalanche (SUV), a spare set of keys, garage door openers, numerous pieces of jewelry belonging to his wife and daughters, cameras, cell phones, a packed suitcase, $200 in cash, a camcorder, sewing machines and other property were missing from the house and garage.

At about 4:30 a.m. on May 18, 2005, California State University Police Sergeant Michael Johnson, on patrol in a uniform and marked car in the 4600 block of College Avenue in San Diego, saw a black SUV being driven by a woman toward him abruptly turn onto a side street at a high rate of speed. Johnson requested a license plate check on the SUV as he followed it onto another street and then drove past it as it pulled over. As he did so, Johnson saw two men, one a black male, get out of the passenger side of the SUV and the woman get out of the driver's side. All three then walked up the driveway toward the house. The dispatcher advised Johnson the SUV was reported stolen as he parked his patrol car at the end of the street. When Johnson started to get out of his car, he heard the SUV start up and accelerate, so he followed it.

Johnson lost sight of the SUV after several corners, but then noticed it again going relatively slow on another street. When Johnson activated his overhead red lights and siren, the SUV sped up to 70 or 80 miles per hour in the densely populated residential area, running three stop signs and a red light with Johnson following. At some point another officer in a marked police car joined in the pursuit. The SUV finally hit some dips in the road, causing sparks to fly, and hit a bump at the end of a cul-de-sac which caused it to launch into the air, then skid 86 feet and come to a stop when it hit a parked car.

Johnson saw a man get out of the driver's side of the car, run around the front of the car and bump into a brick wall before continuing to run. Johnson followed the man in his police car, yelling, "Police. Stop. Stop running." The man then ran into a chain link fence, jumped up and grabbed the fence in an attempt to climb over it. Johnson got out of his car, pulled the man off the fence and pushed him to the ground, struggling with him. Johnson finally hit the man in his triceps with a flashlight and handcuffed him.

Meanwhile, the other officer approached the SUV where the woman was crawling out the driver's window and fell to the ground. The officer drew his gun and told her to put her hands behind her back. The officer handcuffed the woman as she moaned in pain. Because both the man and woman, subsequently identified respectively as Gardner and Arce, complained of injuries, paramedics were called to the scene to transport them to the hospital. The SUV was towed to the police station and its contents inventoried.

A plaid backpack found in the front seat of the SUV contained Arce's Southwestern College identification card, .1 gram of meth, a check made out to Arce, and some miscellaneous jewelry, including a gold bracelet, earrings, watches and rings. Also found in the front seat area were cell phones, some keys, and a black and yellow bag containing additional meth and a pipe for smoking meth. In the trunk of the SUV, officers found a JVC digital camcorder, a digital camera, a suitcase, two sewing machines, some compact disks, a Nintendo Game Boy, and other items. Carpenter and his wife came to the station and identified the SUV and much of the property found inside it.

When Arce was returned to the police station under arrest, Johnson began filling out the booking form. As he was doing so, Arce asked him what she was being charged with. When he began reading off the charges, Arce said the backpack with identification in the front was hers and "that the family stuff was in the back." When Johnson had Arce take off the jewelry she was wearing and put it in a bag, she told him it was her jewelry, and that the "lady's stuff was in a bag in the back."

Both Gardner and Arce were charged with crimes stemming from the above incident. At their joint trial, the above evidence was presented to the jury. In addition, Johnson testified some of the jewelry Arce had said was hers had been identified by the Carpenters as belonging to them. A San Diego police officer also testified that about a month after the incident, Arce telephoned the police station asking that her property be returned. One bracelet and one necklace belonging to the victims was found in Arce's property bag. The parties stipulated that the amount of meth found in the backpack and plaid pouch in the SUV was .11 and .02 grams, respectively.

After the prosecution rested its case, Arce testified in her own defense. Arce, who was a 25-year-old college student, said she had a dating relationship with Gardner at the time of the crimes in this case. On May 18, 2005, they had been at a party at a friend's apartment in National City when a guy whom they did not know and whose name she could not remember arrived at the party in the SUV and invited them to go to another party in La Mesa. She and Gardner decided to go with the man. Gardner got into the front passenger side and she in the back passenger side while the other man, who was either Hispanic or Caucasian, drove.

On the way to La Mesa, the man was not driving very well, was belligerent, incoherent, and played loud music. When he stopped for gas before reaching La Mesa, Arce complained to Gardner about the man's driving and condition. When they left the gas station, the man's driving was a little better. He then stopped in front of a house in La Mesa, where they all got out of the SUV. She and Gardner got out of the passenger's side and the man got out of the driver's side. As the three walked up the driveway toward the house, Arce saw a San Diego Police patrol car parked at a distance down the street. The man then walked ahead and disappeared near the house as she and Gardner waited in the driveway. She did not know if the man went inside the house or around the back of the house. At some point, someone was in the driveway talking to Gardner about 10 feet away from Arce. When Gardner returned to her alone, he said, "I have the keys. We are going to go back to the apartment [that we were at before]. He isn't feeling well and I'm going to drive. . . ."

When they got in the SUV, Gardner was in the driver's seat and Arce was in the front passenger's seat. As he drove away, the police car followed behind the SUV. When the police put on their lights and siren, Gardner continued driving, picking up speed and hitting a dip which caused her to hit her head on the roof. Arce said Gardner then parked the car on a slope and it moved forward slightly against another car. She was in the process of trying to get her seat belt off when an officer standing by the driver's window, pointed a gun at her and ordered her to crawl out the driver's side window with her hands. When she did so, the officer threw her to the ground and twisted her arms to put handcuffs on her. She was then taken to a hospital to treat her injuries.

Arce testified that at the hospital she was given heavy pain medication, her jewelry was taken off of her and placed in a bag before she was examined and had x-rays taken. She was subsequently released, rearrested and taken to jail. Although she still felt under the influence of the pain medication when she reached the jail, she remembers that while she was in a holding tank, Officer Johnson asked her some questions to obtain booking information. When she asked him what she was being charged with and arrested for, he said "Well, you guys robbed a family." When Arce claimed she had no idea what he was talking about, he asked her what "stuff" was hers. She told him, "My things were with me on my lap in the front seat." Arce said she had subsequently called the police department to request the status of her property on the advice of her previous defense counsel.

Arce denied she ever drove the SUV the night of the crimes. She also denied Gardner had been speeding or had run any stop signs when the police followed them in the SUV. On cross-examination, she claimed she did not see all the "stuff" on the back seat of the car, she just sat in one area and believed there was some property or things in "plastics bags or something like that" in the back on the floor. Arce could not explain how the Carpenters' jewelry or the meth got into her purse or backpack.

DISCUSSION

I

ADMISSION OF CODEFENDANT'S PRETRIAL STATEMENTS

In limine, the People sought to introduce Arce's statements made to Officer Johnson at the time of her booking that the purse/backpack belonged to her and the family's belongings were in the back of the SUV. The People asserted such statements were spontaneously made and did not violate Arce's Miranda^[4] rights. Arce's counsel requested an Evidence Code section 402 hearing on the matter, noting that if the court determines there is no Miranda violation "or it's truly viewed as a spontaneous statement," then he would have no objection to the statements coming into evidence, "without prejudice. . . ."

Assuming such statements satisfied Miranda, Gardner's counsel objected to their admission because they would negatively reflect on Gardner by showing Arce's knowledge of recently stolen property from a residential burglary and that the stolen property was in the SUV Gardner drove. Because the statements would be consistent with Arce being in actual and/or constructive possession of the stolen property and being a principal or aider and abettor in the residential burglary, the fact she was with him in the SUV would reflect on him as he was with her. Counsel argued that because "birds of a feather flock together[, i]f she knew, ergo, he knew. If she did the res berg [sic] and he is with her, then he may have done the res berg [sic] or could be an accessory after the fact, something to that effect. So her statements are prejudicial." Counsel acknowledged that the People would want Arce's statements to come into evidence because they show "knowledge," but thought the court should not allow them because the jury would attribute knowledge to Gardner simply because he was with Arce.

When the court stated it believed the objection was one which would suggest Arce's statements may be admissible against her, but should not be admissible against Gardner, the prosecutor agreed, noting there was a jury instruction which spoke to the matter so that no inference could be made to impute Arce's knowledge to Gardner. The court then asked Gardner's counsel if he were basing his objection on Aranda-Bruton^[5] or "some other legal basis?" Counsel responded he was objecting under both Aranda-Bruton and Evidence Code section 352 because Arce's statement would hurt Gardner by the "reasonable inference that the jury will draw from that statement. . . . " Counsel did not believe that a limiting instruction was much benefit to Gardner in this situation.

Gardner's counsel also requested the court limit the amount of evidence which the prosecutor could present on the residential burglary of the Carpenters' home because neither defendant was charged with such crime or with receiving stolen property other than the SUV and too much of such evidence could be used like "other crimes" evidence to prejudice both defendants and impact on the knowledge element for the charged

crimes. After further discussion with the prosecutor about the charges, the prosecutor agreed not to mention the term "residential burglary." Nonetheless, the court noted some of the evidence regarding the stolen property in the SUV was at least relevant as to Arce's pretrial statements and her knowledge if they were admissible and not excluded under Miranda. The court took the matter as to Gardner and any Aranda-Bruton issues under submission.

The court then conducted the evidentiary hearing with Officer Johnson. He testified that when Arce was brought back to the police station after the hospital, he and other officers were eating dinner and she asked for a piece of their pizza and some water. After Johnson finished eating, he began filling out Arce's paperwork and read her her Miranda rights from his police issued notebook. She indicated she understood her rights and said she would rather speak with her attorney instead of Johnson. Johnson said, "That's fine," and continued processing her paperwork. Arce then asked him what she was being charged with. When Johnson began reading the charges, "she started making statements regarding the property that was found in the [SUV] and what was hers and what belonged to the . . . other lady, or something to that effect." Arce also stated that her own property was in a backpack with her in the front seat and that the jewelry he took from her was her own and the "other lady's stuff was in one of those bags."

Johnson denied he asked Arce any questions "pertaining to what she had done or where the property had come from." He only asked Arce questions about her personal information that went on the booking slips. On cross-examination, Johnson said Arce did not appear to be under the influence of any type of medication when he talked with her and that the reading of her rights and her subsequent statements had not been tape recorded. Johnson denied that he or any other officer at the station had made any promises to Arce regarding leniency in this case.

After excusing Johnson, the court ruled there was no Miranda violation and that it would permit the People to offer Arce's statements against her at trial. The court continued the matter as to whether the statements were admissible against Gardner and whether the People would be permitted to amend the information to charge both defendants with receiving stolen property other than the SUV.

Several days later, the court overruled the defendants' objections to an amendment to the information to charge the count 3 receiving stolen property as section 496, subdivision (a), and changed its ruling as to whether the prosecutor could bring in evidence of the residential burglary.

With regard to the remaining issue in limine, the court then noted it had reviewed Bruton and the recent case of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) on the question of whether Arce's statements could be admitted against Gardner. The court reasoned that because it had determined Arce's statements were not in response to questioning, they were not a product of interrogation and therefore would not be testimonial in nature and violate the confrontation clause under Crawford.

Additionally the trial judge stated:

"Aranda-Bruton indicated that when a co-defendant makes a statement that inculpates the co-defendant, that it's prejudicial. A curative instruction may not be sufficient to cure any prejudicial effect of making such a statement. So in this court's analysis, the court asks: Does Ms. Arce's statement inculpate Mr. Gardner? I suppose you can certainly draw an inference and you can extrapolate from her statement that she does not mention any offense. The only thing she does is identify certain property. So the court does not find that it suggests that there is anyone other than herself that was responsible for committing the offense. It doesn't refer to Mr. Gardner. It does not directly inculpate him. So I'm inclined to permit that statement to be introduced [against] her in this case. Additionally, it's my understanding the statement itself goes to knowledge and is not being offered for the truth to suggest that this property belongs to the victim. But it's circumstantial evidence upon Ms. Arce's knowledge of whether or not the property was stolen, so it is not hearsay; it's circumstantial [on] the issue of knowledge. For that reason, I offer to the defense, I'm prepared to give a limited instruction. I don't find that there is any sua sponte requirement. I'm going to leave it to you to decide whether or not you [prefer] to have a limiting instruction given the court's ruling. . . ."

When Gardner's counsel immediately requested a limiting instruction, the trial judge said, "Okay. So I will have the record reflect that it was over the defense's objection that the court permitt[ed] the statement to come into evidence. But having overruled it, the limiting instruction is requested and I will be sure to give it at the time."^[6]

However, when Johnson subsequently testified about Arce's objected-to pretrial statements at trial, the court did not give the agreed upon limiting instruction. In Arce's testimony, she denied any knowledge about a residential burglary or stolen property in the SUV, and denied she had made any statements to Johnson about any property.

Later, during discussions about the jury instructions to be given in this case, Gardner's counsel expressed concern about Arce's pretrial statements, requesting some instruction to limit them to Arce only. He noted that off the record the court had told him that such instructions would be inappropriate because the court had not told the jury the statements were so limited at the time they were admitted. Counsel said he would "sleep on it" but was still concerned about whether the prosecutor was proceeding on any theory of accomplice and aiding and abetting for Arce. The prosecutor assured the court and defendants she was not proceeding on such alternate theories and the court declined to instruct on them.

In closing argument, the prosecutor commented on the conflicting evidence concerning Arce's knowledge, noting her denial of anything that implicated her in the crimes was unreasonable in light of the amount of stolen property found in the back of the SUV and her willfully false testimony wherein she denied her statements to Officer Johnson that the property in the back belonged to the family. As to Gardner, the prosecutor stated the jury would have to believe his version of the events as told by his counsel if they were to find that Arce was driving the SUV during the entire incident.

Arce's counsel told the jury that Arce could not testify about Gardner's knowledge and no one knows what he knew about the SUV or stolen property in it because he did not testify, which was his right. Arce's counsel also reminded the jury that Gardner's attorney's statements were not evidence.

On appeal, Gardner complains that the admission of Arce's pretrial hearsay statements about the property in the back of the SUV as to him constituted prejudicial error. The People assert Gardner has forfeited any appellate claim in this regard because he did not make a specific hearsay objection to the statements below, and that even if the issue is preserved, the court would have overruled the objection because the statements were not hearsay as they were not admitted for their truth. Although Gardner did not explicitly object on hearsay grounds to the admission of Arce's out-of-court statements, because both parties and the court below misused various technical legal terms in discussing the problems of admitting her statements at trial as against her and Gardner, and Gardner continues to do so on appeal,^[7] in the interests of justice we consider his challenge to the admissibility of Arce's hearsay statements as inherently preserved by the objections he made below based on Aranda-Bruton and Evidence Code section 352.^[8]

Moreover, even accepting that Arce's statements are not hearsay as to her because they provided circumstantial evidence of her state of mind regarding the element of knowledge for count 3, the admission of such statements, which are hearsay as to Gardner, may still violate Aranda-Bruton and be more prejudicial than probative when admitted at a joint trial without a requested limiting instruction against a nontestifying defendant like Gardner.

The Pertinent Law

Generally, a trial court is vested with broad discretion in determining the admissibility of evidence and its exercise of such will be reversed only upon a finding of abuse. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.)

Evidence Code section 1200, subdivision (b) bars the admission of hearsay evidence, which is defined in subdivision (a) of that section as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." However, a statement that is not offered for its truth is not hearsay (People v. Jablonski (2006) 37 Cal.4th 774, 820), and " 'a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay.' " (People v. Cox (2003) 30 Cal.4th 916, 962.) Generally, " '[a] limiting instruction is required with declarations used as circumstantial evidence of the declarant's mental state. . . . [Citation.]' [Citation.]" (Id. at pp. 962-963.)

Evidence Code section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . necessitate undue consumption of time or . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352, subds. (a) & (b).) The trial court's exercise of discretion in admitting evidence under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse of that discretion. (People v. Karis (1988) 46 Cal.3d 612, 637.)

With regard to evidence being admitted in a joint trial of defendants, our Supreme Court held in Aranda that when the prosecution seeks to introduce into evidence the out-of-court statement of one defendant that implicates a codefendant, the trial court can allow the joint trial "if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established." (Aranda, supra, 63 Cal.2d at pp. 530-531.)

Subsequently, in Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment right of confrontation when statements of a nontestifying codefendant incriminating the defendant are introduced at their joint trial, even if the jury is instructed to consider the statements only as against the codefendant. (Bruton, supra, 391 U.S. at pp. 135-136.)^[9] However, the high court has since held that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's [statements] with a proper limiting instruction when . . . the [statements are] redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Richardson v. Marsh (1987) 481 U.S. 200, 211.)

Further, under Aranda-Bruton, a codefendant's extrajudicial statement implicating another defendant is generally not required to be excluded where the declarant testifies and is available for cross-examination even if it is hearsay as to the defendant and its admission against that defendant would be reversible under state law in the absence of a cautionary instruction. (See Nelson v. O'Neil (1971) 402 U.S. 622; People v. Boyd (1990) 222 Cal.App.3d 541.) It has been suggested, however, that effective confrontation may only be possible if the declarant-witness affirms the statement as his or her own. (Douglas v. Alabama (1965) 380 U.S. 415, 420.)

Where Aranda-Bruton error is found, because it implicates a constitutional right, it is usually scrutinized under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Brown v. United States (1973) 411 U.S. 223, 231-232; People v. Anderson (1987) 43 Cal.3d 1104, 1128.) Errors found under the ordinary rules of evidence which do not implicate federal constitutional rights are reviewed under so-called Watson error, i.e., whether it is reasonably probable that defendant would have received a more favorable outcome had the evidence not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Analysis

In this case it was clearly understood by all parties that Arce's pretrial, out-of-court statements were circumstantial evidence of her state of mind going to the issue of her knowledge, which was an element the prosecutor needed to prove for counts 2 and 3 against her. As such, the statements were being admitted for a limited nonhearsay purpose as against Arce. However, as to Gardner, the hearsay statements of Arce were not being offered as to him under any exception to the hearsay rule. The statements did not circumstantially go to his state of mind. In fact, the record shows the prosecutor acknowledged that in this joint trial setting a limiting instruction was usually used to preclude a jury from making any improper inference from such evidence applicable only to one defendant to another defendant, like Gardner.

Although the court did not find that Arce's statements explicitly referred to any crime or Gardner, and that they merely referred to property in the SUV belonging to another woman or family, the reasonable inference argued from such evidence was that Arce had knowledge of a crime because she knew the property in the SUV was stolen. And, even though the parties did not argue such knowledge should also be imputed to Gardner, because of Arce's close association with Gardner and presence in the SUV with him that night, in the absence of an instruction limiting the use of her statements only to her knowledge, a jury could reasonably infer from such statements that Gardner also had to have known there was property in the SUV that was stolen.

To prevent such improper inference being imputed to Gardner, defense counsel had specifically requested a limiting instruction and the court had agreed to give one when the evidence was admitted. Unfortunately, the court forgot to do so and counsel forgot to remind the court until jury instruction discussions when he again requested such limiting instruction. At that time, however, the court decided not to give the instruction because it had not done so earlier when the statements were received and because the prosecutor was not proceeding on an aiding and abetting or accomplice theory against the two defendants. We believe the court abused its discretion in failing to give the requested limiting instructions for Arce's statements.

Although, technically, there is no Aranda-Bruton violation when the declarant co-defendant testifies and is available for cross-examination, as in this case, because Arce denied she had made such statements, it is difficult to find that Gardner's counsel was provided the opportunity to fully cross-examine her on them. Nor does the fact that the statements did not specifically refer to Gardner lessen their availability to effect the jury's determination on an element of the prosecution case against Gardner. The court had two opportunities to limit by instruction the prejudicial effect of Arce's statements on Gardner's case and failed to do so.^[10] Without the requested limiting instruction, we believe the introduction of Arce's statements was extremely prejudicial to Gardner as the jury was free to make any inference it chose from Arce's statements,^[11] including the inference that Gardner had to have known the property in the SUV was stolen. Although there may be sufficient evidence to support Gardner's counts 1 and 3 convictions, a matter we do not now decide, we must now determine the effect of the erroneous

admission of Arce's statements as to those two convictions without a limiting instruction.

Here, the jury was presented with evidence that Gardner, accompanied by Arce, had fled from the police in a stolen vehicle which contained stolen property and then on foot, which strongly showed his consciousness of guilt of the crimes charged. However, the jury also had conflicting evidence before it as to whether Arce had driven the SUV to a residence in La Mesa prior to the vehicle pursuit. Arce testified she had not driven the SUV, that she had sat in the back with bags of property before reaching La Mesa while another man drove, and that she had her own property with her in the front seat area of the SUV when Gardner drove away after obtaining the keys to the SUV from the other man. Officer Johnson had testified that he had seen Arce driving the SUV before La Mesa and that later, after she was arrested and Mirandized, Arce had told him the property in the back belonged to a family and that the other lady's jewelry was in a bag in the back. The prosecution presented no direct evidence Gardner knew at any time that either the SUV or its contents were stolen. None of the property stolen from the Carpenters' was found in Gardner's possession at the time he was apprehended. During closing argument, Arce's counsel highlighted the fact that nobody knew what Gardner knew in this case because he had not testified.

Arce's statements to Johnson that were improperly admitted as against Gardner without a limiting instruction were thus not cumulative of any other evidence. Rather, they provided strong circumstantial evidence on the key element of knowledge which the prosecution was required to prove for a conviction on the count 3 charge of receiving stolen property. This error was compounded by the Griffin error, discussed below, which in effect, begged the jury to infer Gardner's knowledge regarding receiving stolen property from the evidence, which included Arce's pretrial statements. Under these circumstances, we cannot find even under Watson, supra, 46 Cal.2d 818, that the error in admitting her statements without a limiting instruction as to Gardner was harmless with regard to count 3. We believe the jury would probably have reached a more favorable result on this record had the statements been admitted with a proper limiting instruction not to consider them as to Gardner.

However, even though we conclude the absence of a limiting instruction regarding Arce's statements was prejudicial error as to count 3, we do not reach the same conclusion as to Gardner's count 1 conviction of auto theft based on driving the SUV. As to that count, the jury did not need to specifically find Gardner had the knowledge that the SUV was stolen in order to convict him of the charged crime. Rather, the jury only needed to find that he was driving the SUV with the intent to "deprive the owner either permanently or temporarily of [his] title to or possession of the vehicle." (CALJIC No. 14.36.) Moreover, the jury found both Gardner and Arce not guilty of the count 2 charge of receiving the SUV, which required finding that each defendant had knowledge the SUV had been stolen at the time he or she received it. By such verdicts, the jury necessarily did not infer Arce had any knowledge the SUV was stolen from her pretrial statements about the property in the SUV and did not impute such knowledge to Gardner. Under these circumstances, the error in not limiting Arce's statements to only her state of mind on the issue of knowledge was harmless.

In sum, we conclude the trial court abused its discretion in admitting Arce's pretrial statements without a limiting instruction as to Gardner and that the error in doing so was prejudicial with regard to Gardner's count 3 conviction and must be reversed. Because the record is unclear as to whether the court would impose the same terms for the remaining counts after a reversal of one or more convictions, we must remand the matter for resentencing to permit the court to again exercise its sentencing discretion.^[12]

II

GRIFFIN ERROR

It is well established that a defendant cannot be compelled to testify against himself. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) In Griffin, the United States Supreme Court ruled the Fifth Amendment prohibits "comment by the prosecution on the accused's silence." (Griffin, supra, 380 U.S. at p. 615.) Thus it has evolved that in order not to penalize a defendant who exercises his right to silence, "the prosecutor may neither comment [directly or indirectly] on a defendant's failure to testify nor urge the jury to infer guilt from such silence. [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 154 (Hardy); People v. Medina (1995) 11 Cal.4th 694, 755.) Although the prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses, "[w]hen improper comment on a defendant's silence occurs, the error requires reversal of the judgment unless a reviewing court concludes the error was harmless beyond a reasonable doubt. [Citations.]" (Hardy, supra, 2 Cal.4th at p. 157; People v. Vargas (1973) 9 Cal.3d 470, 475.)

Griffin error may also be committed by an attorney representing one defendant who comments on a codefendant's silence. (Hardy, supra, 2 Cal.4th at p. 157.) However, when such comments come from codefendant's counsel. who technically does not have an institutional interest in the defendant's guilt equal to that of a prosecutor, the reviewing court must look to "whether the comment actually or implicitly invited the jury to infer guilt from silence" in reviewing whether the error is harmless beyond a reasonable doubt. (Id. at p. 159.)

As noted above, Arce's counsel commented on Gardner's failure to testify at trial during closing argument. He specifically stated the following:

"Now, to the extent that my client, Miss Arce, testified that she didn't see any stop signs . . . I submit to you, candidly, I think she was minimizing the nature of that testimony in order to . . . deaden the impact of what she had to say about Mr. Gardner's role in this particular event. . . . She's not a stupid person. And she knows that when she got up there to tell you what happened, that what the truth was was going to hurt Mr. Gardner in terms of how you view this case. And she told you that she still had feelings for him; and, to that degree, she's conflicted. And she got up there, despite that conflict, to tell you what happened. And that was very difficult for her to do, given the circumstances of this case. So did Mr. Gardner know more? Who knows? He didn't take the stand to testify. We don't know. When counsel says that, um, 'Mr. Gardner's version of events are'--we haven't heard Mr. Gardner's version of events. [W]hat his attorney says to you after I'm done, what his attorney said to you during opening statement is not evidence. So when the prosecutor, in effect, says that Mr. Gardner is blaming Miss Arce, you haven't heard any evidence from Mr. Gardner, as is his right, constitutional right, not to testify. So that characterization, I submit to you, is inaccurate and should be ignored."

Gardner's counsel did not object to codefendant Arce's counsel's statements commenting on Gardner's failure to testify at trial. Not having done so, Gardner's appellate claim of prejudicial Griffin error is waived. (People v. Medina, supra, 11 Cal.4th 694, 756.) Nor do we find the clear Griffin error by Arce's counsel, in and of itself, prejudicial to Gardner. Such references did not "actually or implicitly invite[] the jury to infer [Gardner's] guilt from [his] silence" (Hardy, supra, 2 Cal.4th at p. 159) and the evidence against Gardner was strong (id. at p. 154). Gardner was spotted driving a stolen car and fled when the police tried to stop him. After a high speed chase through a residential area, during which he ran three stop signs and a red light before crashing into a parked car, he fled on foot from officers, who then found numerous items of stolen property scattered throughout the stolen car. From the totality of this evidence the jury could reasonably infer Gardner's guilt. Codefendant Arce's counsel's comments merely reminded the jurors, as they had been instructed by the court, that Gardner had a constitutional right not to testify and to rely on the evidence.

It, therefore, follows that Gardner's alternative argument his counsel was ineffective for failing to object to the comments fails. When faced with a claim that defense counsel has provided ineffective assistance at trial, "[w]e presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt).) The burden is on the defendant to show both " 'that [his] counsel's representation fell below an objective standard of reasonableness; and . . . that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. 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.]" ' [Citation.]" (Ibid.) However, if the reviewing court does so, it must give great deference to counsel's tactical decisions. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.)

Here, the record sheds no light on why Gardner's counsel did not object to the Griffin error. Nor has Gardner filed a petition for writ of habeas corpus which explains why counsel did not so object. (See Holt, supra, 15 Cal.4th at p. 704.) Because deciding whether to object at trial is a tactical decision, and Gardner's counsel may have had sound tactical reasons for not objecting, such as a desire not to focus the jury's attention on the improper argument, or to gain some leniency in sentencing in light of the strong evidence against him, Gardner has not shown his counsel was inadequate for failing to object. (See People v. Riel (2000) 22 Cal.4th 1153, 1197.)

Further, as noted above, in light of evidence against Gardner and the fact the comments of Arce's counsel did not encourage the jury to equate Gardner's silence with guilt, Gardner cannot show he would have had a more favorable determination had his counsel objected and the jury been admonished to disregard those statements.

III

LOST WAGES PROPER ITEM OF VICTIM RESTITUTION

The probation officer's report recommended $6,805.42 in victim restitution based on Carpenter's itemization of his economic losses as a result of the burglary at his home, which included the taking of the SUV full of property from his house and garage. At sentencing, Gardner's counsel objected to $600 that Carpenter claimed in such itemization for lost wages, arguing he did not think "the time lost at work is compensable under the law." The court subsequently ordered Gardner to pay, jointly and severally with Arce, the full amount of victim restitution under section 1202.4 claimed by Carpenter, which included the $600 in lost wages.

On appeal, Gardner contends the court erred in ordering that $600 portion for lost wages because, although authorized by statute, such statutory authority conflicts with the California Constitution. He specifically argues the language of the Constitution limits a defendant's obligation to make restitution to "persons who suffer losses as a result of criminal activity" (Cal. Const., art. I, § 28, subd. (b)) and that there is nothing in the Constitution to show such restitution was intended to apply to losses other than those flowing as a direct and immediate proximate cause of the criminal activity. We disagree.

In 1982, the voters of California added by initiative a provision to the California Constitution "establishing a new constitutional right for crime victims to obtain restitution for losses suffered as a result of a criminal act and directing the Legislature to enact laws empowering the trial courts to issue[] such orders. [Citation.]" (People v. Rowland (1997) 51 Cal.App.4th 1745, 1750.) This provision expressly provided that "[i]t is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for the losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary. The Legislature shall adopt provisions to implement this section during the year following adoption of this section." (Cal. Const., art. I, § 28, subd. (b).) The next year the Legislature enacted section 1202.4, which "carries out this mandate." (Rowland, supra, 51 Cal.App.4th at pp. 1750-1751.)

Section 1202.4, subdivision (a)(1) provides that "[i]t is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime." Subdivision (f)(3)(E) of section 1202.4 further provides that the restitution order shall be "of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to . . . [w]ages or profits lost by the victim. . . due to time spent as a witness or in assisting the police or prosecution."

Gardner simply has not shown how the plain language of section 1202.4 conflicts with article I, section 28, subdivision (b) of the California Constitution, or how his due process rights have been violated by the order of direct restitution in this case. As Gardner recognizes, the word "loss" for victim restitution is to be broadly and liberally construed to uphold the voters' intent in adding the constitutional provision in the first place, and also to fully compensate a victim for "any" economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in section 1202.4. (People v. Fulton (2005) 109 Cal.App.4th 876, 884-885; People v. Jennings (2005 128 Cal.App.4th 42, 57.) His attempt to limit what are losses flowing as a direct result of his criminal conduct based on the holdings in cases which do not permit victim restitution to be awarded to governmental entities for the investigation and prosecution of a defendant's activity is unfounded. Those cases involved different restitution sections as well as agencies or prosecutors who were not direct victims of a defendant's crimes. (See People v. Ozkan (2004) 124 Cal.App.4th 1072; People v. Torres (1997) 59 Cal.App.4th 1; People v. Burnett (1978) 86 Cal.App.3d 320, 322-323; People v. Baker (1974) 39 Cal.App.3d 550, 559-560.)

Moreover, his arguments that a restitution order for lost wages is an unlawful penalty for exercising his right to a jury trial and another way of paying for the cost of prosecution are based on the inaccurate assumption he is being required to pay for his prosecution and trial. Gardner was ordered to pay a direct victim of his crimes for the lost wages the victim incurred because he was unable to attend work while he was in court testifying as a witness against Gardner as a direct result of Gardner's criminal activity. Gardner's arguments in this regard are without merit.

DISPOSITION

The count 3 conviction for receiving stolen property is reversed and the remaining convictions affirmed. The matter is remanded for resentencing.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] Arce is not a party to this appeal.

^[3] Griffin v. California (1965) 380 U.S. 609 (Griffin).

^[4] Miranda v. Arizona (1966) 384 U.S. 436.

^[5] People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton), which discuss potential constitutional and evidentiary problems when evidence is offered in a joint trial to show that one codefendant made an extrajudicial statement implicating another codefendant.

^[6] The reporter's transcript appears to inaccurately reflect that the court said "I would request a limiting instruction, please." However, when taken in context of Gardner's counsel then thanking the court after it said it would give such limiting instruction, the only reasonable interpretation of the record is that Gardner's counsel did properly request a limiting instruction.

^[7] Below, the parties and court continually referred to whether Arce had made her statements spontaneously rather than voluntarily or without prompting by questions in violation of Miranda. On appeal, Gardner argues the court's ruling in this regard was in error because it admitted Arce's statements under the excited utterance or spontaneous statement exception to the hearsay rule. As the People point out, however, the record clearly shows the term "spontaneous" was used at the trial level in the context of whether the statements violated Miranda or Crawford, by not being in response to police interrogation.

^[8] We do so even though Gardner does not claim constitutional error under Aranda-Bruton on appeal to foreclose any future argument Gardner was denied effective assistance of appellate counsel.

^[9] In 1982, the Truth-in-Evidence provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) abrogated Aranda to the extent it required relevant evidence to be excluded when federal constitutional law did not require exclusion. (People v. Fletcher (1996) 13 Cal.4th 451, 465.)

^[10] The record reflects the court may have thought it could not give a limiting instruction at the close of trial where it had not done so at the time the evidence was initially admitted. However, CALJIC No. 2.08 specifically provided at the time of trial an instruction for such circumstance by omitting the bracketed portion regarding the earlier admission of evidence with a limiting instruction, i.e.: "Evidence has been received of a statement made by a defendant after [her] arrest. . . . Do not consider this evidence against the other defendant[]."

^[11] Interestingly, neither party requested the court to instruct the jury under CALJIC No. 2.09 as to the limited purpose of the admission of Arce's statements.

^[12] The transcript shows the court in its discretion imposed an eight-month term for count 3 to run consecutive to count 1, and had also imposed "count 4 concurrent to counts 1 and 3." The court minutes and the abstract of judgment, however, both show the court imposed an unauthorized term of one-third the midterm for the count 4 evading an officer offense. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1, subdivision (a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time. A concurrent term begins when it is imposed and runs together with the other terms, with the latest expiring term controlling. (§§ 669, 1170.1, subd. (a); see In re Roberts (1953) 40 Cal.2d 745; People v. Bruner (1995) 9 Cal.4th 1178, 1182, fn. 3; People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4.) Such an unauthorized sentence is generally subject to correction on review. (People v. Menius (1994) 25 Cal.App.4th 1290, 1295.) However, because we must remand for resentencing to permit the trial court to exercise its sentencing discretion, we leave to that court to correctly impose a full midterm if it exercises its discretion to again impose a concurrent term for count 4.

We also note that the minutes from the sentencing show the three one-year terms imposed for the prison priors as "Mandatory consecutive." Although the one year enhancements imposed for prison priors are to run consecutive if imposed, they are not mandatory. (§§ 667.5, subd. (b), 1385.) The trial court has discretion in the interests of justice to strike or dismiss a prison prior or the punishment for such under section 1385, subdivisions (a) and (c). We make no comment on how the court should exercise that discretion as to the prison priors at resentencing.