PEOPLE v. HOLLINQUEST









Filed 12/20/10




CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, v. KOREY HOLLINQUEST, Defendant and Appellant.

A124613 (Contra Costa County Super. Ct. No. 05-051554-4)

STORY CONTINUE FROM PART I….


The record before us demonstrates only that the prosecutor elected not to grant Buchanan immunity in the aftermath of his distinctly incriminating testimony at the preliminary hearing. In response to argument by the defense that Buchanan was not unavailable, the prosecutor merely expressed that he was not required to grant the witness immunity and did not intend to do so. Nothing in the record indicates that the prosecutor acted for the improper purpose of intentionally rendering Buchanan an unavailable witness at trial. And in fact, other legitimate reasons are explicable for the prosecutor’s decision to decline to extend Buchanan’s use immunity to testimony at trial. No charges were pending against Buchanan when he testified at the preliminary hearing, and he had previously given false statements to the police that did not implicate him in the murder.^[1] In light of Buchanan’s conflicting versions of the incident and the lack of any testimony from him before the preliminary hearing, a grant of immunity at that point in the proceedings was at least understandable to obtain some testimony from him. Once Buchanan’s testimony at the preliminary hearing firmly established his own guilt as well as that of defendant, the prosecutor may have justifiably concluded that the witness was no longer a worthy candidate for a grant of immunity. He was then charged with the robbery and murder before defendant’s trial. A reasonable person simply cannot argue that after the testimony at the preliminary hearing, the prosecutor was precluded from charging Buchanan, or, alternatively, awarding him use immunity at trial. Denial of a grant of immunity or leniency to Buchanan in exchange for his testimony at trial was not “wholly unnecessary to the proper performance” of the prosecutor’s duties, but rather was an appropriate tactical decision and exercise of executive discretion. (People v. Woods, supra, 120 Cal.App.4th 929, 937–938.)
Also, the record here is devoid of any evidence suggesting to us in any way that threats, intimidation or coercion was exerted upon Buchanan by the prosecution that precluded him from making a free and voluntary choice not to testify. (See in Woods v. Adams, supra, 631 F.Supp.2d 1261, 1281–1282; Davis v. Straub (6th Cir. 2005) 430 F.3d 281, 287.) The prosecution did not intentionally distort the fact-finding process by taking affirmative steps to prevent Buchanan from testifying or grant immunity to other witnesses while denying immunity to him.^[2] (United States v. Whitehead (9th Cir. 2000) 200 F.3d 634, 640, cert. denied, 531 U.S. 885 [148 L.Ed.2d 141, 121 S.Ct. 202].)
In the absence of any evidence before us of the prosecutor’s improper motive or other misconduct that resulted in Buchanan’s assertion of his privilege against self-incrimination, we cannot conclude that the prosecutor acted with the specific objective of preventing the witness from testifying within the meaning of section 240, subdivision (b). Nor did the admission of Buchanan’s prior testimony violate defendant’s rights to confrontation and due process. (People v. Woods, supra, 120 Cal.App.4th 929, 938–939.) Therefore, Buchanan was an unavailable witness and his preliminary hearing testimony was properly admitted at trial without any statutory or constitutional violation. (See People v. Smith, supra, 30 Cal.4th 581, 612.)
II. The Admission of Evidence that Defendant Failed to Explain the Telephone Contacts with Buchanan.
Defendant also argues that evidence of his “post-arrest silence” was admitted without objection by his counsel. (Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240] (Doyle).) The evidence challenged by defendant is testimony from investigator Daryl Jackson, who interviewed Don Heidary. Jackson also listened to the more than one hundred recorded telephone conversations between defendant and Heidary after defendant was arrested. Jackson testified that he discussed with Heidary the incriminating cell phone records of calls between defendant and Buchanan. Heidary stated to Jackson that defendant “never had an explanation” for the cell phone contacts with Buchanan on the day of the murder, and “never told him of any relationship” with Buchanan. Jackson asked Heidary about defendant’s relationship and phone contacts with Buchanan to determine if he “had an innocent explanation for some of the facts in this case,” but defendant “never gave [Heidary] that information.”^[3] Defendant claims that the inquiry into his postarrest silence was improper, and his attorney provided ineffective assistance by failing to object to investigator Jackson’s testimony.
Defendant forfeited any challenge to the admission of the evidence by failing to object at trial, so we proceed to his claim of ineffective assistance of counsel. (People v. Huggins (2006) 38 Cal.4th 175, 198 [41 Cal.Rptr.3d 593, 131 P.3d 995]; People v. Hughes (2002) 27 Cal.4th 287, 332 [116 Cal.Rptr.2d 401, 39 P.3d 432].) “The standards for ineffective assistance of counsel claims are well established. ‘We presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.’ [Citation.] To establish a meritorious claim of ineffective assistance, defendant ‘must establish either: (1) As a result of counsel’s performance, the prosecution’s case was not subjected to meaningful adversarial testing, in which case there is a presumption that the result is unreliable and prejudice need not be affirmatively shown [citations] or (2) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel’s unprofessional errors and/or omissions, the trial would have resulted in a more favorable outcome. [Citations.]’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 261 [133 Cal.Rptr.2d 18, 66 P.3d 1123]; see also People v. Frye (1998) 18 Cal.4th 894, 979 [77 Cal.Rptr.2d 25, 959 P.2d 183].) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215 [66 Cal.Rptr.2d 123, 940 P.2d 710]; see also In re Jones (1996) 13 Cal.4th 552, 561 [54 Cal.Rptr.2d 52, 917 P.2d 1175].) Further, “ ‘When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728–729 [97 Cal.Rptr.2d 871, 3 P.3d 248].)
Counsel’s performance must be evaluated by determining whether the testimony elicited by the prosecutor from investigator Jackson violated the principles in Doyle. “Defense counsel’s performance cannot be considered deficient if there was no error to object to.” (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520 [275 Cal.Rptr. 810] (Eshelman).)
“In Doyle, the United States Supreme Court held that it was a violation of due process and fundamental fairness to use a defendant’s postarrest silence following Miranda^[[4]] warnings to impeach the defendant’s trial testimony. (Doyle, supra, 426 U.S. at pp. 617–618.)” (People v. Collins (2010) 49 Cal.4th 175, 203 [110 Cal.Rptr.3d 384, 232 P.3d 32]; see also People v. Earp (1999) 20 Cal.4th 826, 856 [85 Cal.Rptr.2d 857, 978 P.2d 15].) “Post-arrest silence also may not be used against a defendant at trial in order to imply guilt from that silence.” (Stone v. United States (6th Cir. 2007) 258 Fed.Appx. 784, 787.) “The Supreme Court has explained the rationale of this holding in these terms: ‘[The] use of silence for impeachment [is] fundamentally unfair . . . because “Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. . . . Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.” ’ [Citation.]” (People v. Evans (1994) 25 Cal.App.4th 358, 367 [31 Cal.Rptr.2d 20]; see also People v. Hurd (1998) 62 Cal.App.4th 1084, 1092 [73 Cal.Rptr.2d 203].)
“The prosecutor cannot use the defendant’s invocation of his right to remain silent or refusal to answer questions as evidence against him. [Citations.] Particularly, the defendant’s silence may not be used to impeach his credibility. [Citations.] [¶] To establish a violation of due process under Doyle, the defendant must show that the prosecution inappropriately used his postarrest silence for impeachment purposes and the trial court permitted the prosecution to engage in such inquiry or argument.” (People v. Champion (2005) 134 Cal.App.4th 1440, 1448 [37 Cal.Rptr.3d 122].) “To assess whether these questions constitute Doyle error, we ask whether the prosecutor referred to the defendant’s post-arrest silence so that the jury would draw ‘inferences of guilt from [the] defendant’s decision to remain silent after . . . arrest.’ [Citation.]” (Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 330.)
The Attorney General argues that the Doyle rule does not compel “suppression of statements to private parties not involved in official interrogation.” (Italics added.) The mere fact that defendant’s silence was exhibited to a private party rather than in response to police questioning does not necessarily preclude a constitutional violation. “[E]ven outside the context of custodial interrogations, silence remains constitutionally protected if it appears to be an assertion of the right to remain silent.” (People v. Jennings (2003) 112 Cal.App.4th 459, 473, fn. 2 [5 Cal.Rptr.3d 243].) Rather, we must examine “the circumstances surrounding defendant’s post-Miranda silence. Doyle need not apply to defendant’s silence invoked by a private party absent a showing that such conduct was an assertion of his rights to silence and counsel. [Citation.] On the other hand, when the evidence demonstrates that defendant’s silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle should apply.” (Eshelman, supra, 225 Cal.App.3d 1513, 1520; see also People v. Delgado (1992) 10 Cal.App.4th 1837, 1842, fn. 2 [13 Cal.Rptr.2d 703].)
The distinction is demonstrated by two cases. In Eshelman, supra, 225 Cal.App.3d 1513, 1520, after the defendant was released on bail he refused to respond to his girlfriend’s questions, in part expressly because his attorney told him not to speak to the witness before the trial. The court concluded that the defendant’s silence exhibited his “reliance on his constitutional rights to silence and counsel,” and thus Doyle error occurred. (Eshelman, supra, at p. 1521.) Importantly, the defendant in Eshelman expressly advised his girlfriend that he could not discuss the case based on legal advice.
In contrast, in People v. Medina (1990) 51 Cal.3d 870, 889 [274 Cal.Rptr. 849, 799 P.2d 1282], not long “after defendant’s arrest his sister . . . visited him in jail,” and asked, “ ‘why did you have to shoot those three poor boys‌’ Defendant initially made no response,” but “later indicated he did not wish to talk about the matter.” The “record fail[ed] to show that defendant was given Miranda warnings prior to his conversation with his sister.” (Id. at p. 890.) The court concluded that “in the context of the present case, where defendant was engaged in conversation with his own sister, it was not unreasonable to permit the jury to draw an adverse inference from his silence in response to her inquiry as to why he shot the victims. [¶] The record does not suggest that defendant believed his conversation with his sister was being monitored, or that his silence was intended as an invocation of any constitutional right.” (Ibid.) The court added: “We are not here concerned with, and do not address, the situation in which an in-custody, Mirandized, suspect is confronted with an accusatory statement in circumstances where he may be presumed to suspect the monitoring of his conversation.” (Id. at p. 891.)
Without an objection by defense counsel to the admission of investigator Jackson’s testimony, the record in the present case is a bit ambiguous. In contrast to Eshelman, no evidence was adduced that directly reflects upon defendant’s motivation for declining to discuss the case with Heidary. Nothing indicates that in his conversations with Heidary defendant expressed his intent to invoke his constitutional rights, as did the defendant in Eshelman. Heidary and investigator Jackson both merely testified that defendant did not mention any facts related to the case, and specifically did not offer any explanation of his relationship or cell phone contacts with Buchanan. Apparently, these were not topics of conversation. However, the perspective of the conversations suggests that defendant may have at least been aware of his right to silence. He was speaking with Heidary while he was incarcerated, and during their conversations institutional warnings were repeated that “everything you say here is being recorded.” Although Heidary could not recall if defendant’s attorney advised him “never to discuss the facts” of the murder, he acknowledged “that very well could have happened” because he had not “done that.” While defendant did not adduce explicit evidence that his silence was induced by his counsel’s advice, as did the defendant in Eshelman, the context of defendant’s recorded phone conversations with Heidary are indicative of an exercise of his constitutional rights to silence and counsel.
Assuming that defendant’s failure to discuss the facts of the case with Heidary was an assertion of his right to remain silent, we must determine if Doyle error was committed. “An assessment of whether the prosecutor made inappropriate use of defendant’s postarrest silence requires consideration of the context of the prosecutor’s inquiry or argument.” (People v. Champion, supra, 134 Cal.App.4th 1440, 1448.) Defendant did not make any statements to the police or testify at trial, so investigator Jackson’s testimony was not offered for impeachment purposes. “But the principles of Doyle apply even if a defendant does not take the stand in his own defense thereby subjecting himself to potential impeachment. A defendant is entitled to rely on the assurance when he is ‘Miranda-ized’ that his silence will not be used against him. The Miranda warnings are deemed to have induced the silence.” (United States v. Fambro (5th Cir. 2008) 526 F.3d 836, 841, fns. omitted.) The United States Supreme Court has “ ‘consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.’ Fletcher v. Weir, 455 U.S. 603, 606 [71 L.Ed.2d 490, 102 S.Ct. 1309] (1982) (per curiam). The Miranda warnings had, after all, specifically given the defendant both the option of speaking and the option of remaining silent—and had then gone on to say that if he chose the former option what he said could be used against him. It is possible to believe that this contained an implicit promise that his choice of the option of silence would not be used against him.” (Portuondo v. Agard (2000) 529 U.S. 61, 74–75 [146 L.Ed.2d 47, 120 S.Ct. 1119].)
The evidence of defendant’s silence during conversations with his friend Heidary was offered to demonstrate that defendant did not discuss an innocent explanation for the incriminating evidence of the cell phone records – or, for that matter, any other facts related to the case – under circumstances in which he may have been expected to do so. During closing argument, the prosecutor mentioned that defendant’s discussions of the case with Heidary, particularly “when the preliminary hearing was going on,” presented him the “opportunity to explain the evidence” to his “dear friend.” The prosecutor then argued that if the jury found defendant’s “[s]ilence in the face of that” indicated a “consciousness of guilt,” “it’s something you can consider.” The prosecutor added: “In the face of an accusation, silence or lies or feigned unawareness can show a consciousness of guilt, [as] it does in this case.” Also, investigator Jackson’s testimony was not presented in an effort to rebut other statements made by defendant or any claim that he was not given the opportunity to explain his failure to discuss the matter. (Cf. United States v. Ross (9th Cir. 2005) 149 Fed.Appx. 670, 673; Hall v. Scribner (N.D.Cal. 2008) 619 F.Supp.2d 823, 844; People v. Champion, supra, 134 Cal.App.4th 1440, 1451–1452.) Rather, with the investigator’s testimony the prosecutor on his own initiative urged the jury to draw an adverse inference of guilt from defendant’s postarrest silence.^[5] By drawing attention to the fact that defendant never explained the phone calls to Buchanan or mentioned the other facts of the case to Heidary, the prosecutor violated the precepts of Doyle. (See United States v. Whitehead, supra, 200 F.3d 634, 639; United States v. Lopez (9th Cir. 2007) 500 F.3d 840, 845.)
We turn our focus to an examination of the prejudicial impact of the admission of evidence in violation of Doyle, and the prosecutor’s associated misconduct by arguing that defendant’s silence exhibited consciousness of guilt. The test of prejudice is the standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]: we must reverse the judgment unless beyond a reasonable doubt the error complained of did not contribute to the verdict. (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1163; People v. Waldie (2009) 173 Cal.App.4th 358, 366 [92 Cal.Rptr.3d 688] (Waldie); People v. Champion, supra, 134 Cal.App.4th 1440, 1453.) “ ‘When deciding whether a prosecutor’s reference to a defendant’s post-arrest silence was prejudicial, this court will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant’s guilt.’ [Citation.]” (United States v. Lopez, supra, 500 F.3d 840, 845.)
Testimony and argument that defendant did not mention the facts of the case to Heidary had negligible probative value at best. The admission of investigator Jackson’s testimony that briefly recounted his interviews with Heidary was even less significant, as it was merely cumulative to the much more comprehensive testimony on the same subject by Heidary.^[6] The United States Supreme Court has observed that “In most circumstances silence is so ambiguous that it is of little probative force.” (United States v. Hale (1975) 422 U.S. 171, 176 [45 L.Ed.2d 99, 95 S.Ct. 2133]; see also Doyle, supra, 426 U.S. 610, 617 [silence is often “insolubly ambiguous”].) “[T]here may be several explanations for the silence that are consistent with an exculpatory explanation or the silence may be nothing more than the arrestee’s exercise of his or her Miranda rights . . . .” (People v. Sutton (1993) 19 Cal.App.4th 795, 799–800 [23 Cal.Rptr.2d 632].) In the present case, investigator Jackson’s testimony was especially vague and unpersuasive as a form of adoptive admission or consciousness of guilt. Defendant was not confronted with any specific accusations or inquiries. Heidary did not ask defendant about the facts of the murder at all. He testified that in his conversations with defendant, they simply did not “bring it up.” We are not evaluating evidence that the jury was likely to consider as incriminating silence in the face of an accusation. Instead, the testimony was that defendant never discussed the case in a setting where his conversations were recorded, and at a time after his attorney advised him “not to talk about the facts.” No perceptible probative value may be attributed to defendant’s silence where he was not asked about any facts of the case or was otherwise placed in a position where his silence manifested an implied admission of guilt.
The trial court’s instructions did not exacerbate the effect of the error. Quite the opposite is true. The jury was not directed to draw an inference of guilt from defendant’s silence. (People v. Medina, supra, 51 Cal.3d 870, 890–891.) The consciousness of guilt instruction advised the jury: “If you find that before this trial the defendant made a willfully false or deliberately misleading statement concerning the crimes for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt.”^[7] (Italics added.) The court also ameliorated the impact of the evidence and misconduct with an instruction that defendant had a constitutional right “not to be compelled to testify,” and the jury must draw no inference of guilt from his silence to diminish the prosecution’s burden to prove guilt beyond a reasonable doubt without his testimony. Thus, reliance by the jury on the instructions to consider defendant’s silence for any purpose was extremely unlikely.
While the prosecutor committed misconduct by asserting to the jury that defendant’s “[s]ilence in the face” of discussions with Heidary could be considered as evidence of guilt, the focus of the prosecutor’s argument of consciousness of guilt was upon defendant’s silence before his arrest, both when speaking to “family and friends,” and “in the face of an accusation” from a police officer. The prosecutor further stated that he was not “relying” on defendant’s silence to establish the “whole case.” The court also gave an instruction that statements made by attorneys during trial are not evidence, and must be disregarded to the extent they conflict with the instructions on the law.
Finally, the evidence of defendant’s guilt was formidable, and was not based in the least on his failure to provide an innocent explanation of the charged crimes to Heidary. Identity of the murderer was the only seriously contested issue in the case. Buchanan’s testimony, although inconsistent with his prior statements and laced with confusion, at least convincingly identified defendant as the perpetrator of the murder. Buchanan’s account of the murder, when corroborated with the cell phone records, the physical evidence of the murder scene which indicated that the manner in which the murder occurred matched his description, and to a lesser extent the testimony of other witnesses – particularly the victim’s mother – was credible to establish identity. The defense did not claim an innocent explanation for the cell phone calls to Buchanan. Instead, the defense challenged the credibility of the prosecution’s cell phone record evidence with expert testimony in opposition that sought to dispute the accuracy of the records. Therefore, testimony that defendant failed to explain the cell phone calls did not contradict or damage his defense.
In view of the argument, instructions and the totality of the evidence, we conclude that beyond a reasonable doubt the admission of evidence of defendant’s silence and the prosecutor’s improper reference to it in closing argument did not influence the jury verdict. (See United States v. Lopez, supra, 500 F.3d 840, 846; People v. Delgado (2010) 181 Cal.App.4th 839, 853 [104 Cal.Rptr.3d 495]; Waldie, supra, 173 Cal.App.4th 358, 367.) Therefore, the error was harmless, and we find no prejudicial incompetence of counsel. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [69 Cal.Rptr.2d 784, 947 P.2d 1321].)
III. The Remaining Claims of Prosecutorial Misconduct.
We next deal with defendant’s remaining, related claims of prosecutorial misconduct. He maintains that the prosecutor committed misconduct by offering arguments to the jury that were either improper or unsupported by the record. We have already resolved the prosecutor’s reference to defendant’s silence in his conversations with Heidary. In addition, defendant cites as misconduct the following arguments by the prosecutor: that defendant failed to assert “his innocence when confronted with an accusation” of guilt by a police officer; that he did not profess his innocence to “his family and friends;” and that he failed to offer an alibi or explain his telephone number on the victim’s cell phone register to the arresting officer.
Again, defendant recognizes that he has forfeited the claims by failure to object at trial, and argues that his counsel provided ineffective representation. (People v. Arias (1996) 13 Cal.4th 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980].) To resolve any assertion that prejudice from the prosecutor’s remarks could not readily have been cured by the trial court’s intervention, and to offset any claim of ineffective assistance of counsel, we proceed to the merits of the claims of misconduct. (See People v. Turner (2004) 34 Cal.4th 406, 431 [20 Cal.Rptr.3d 182, 99 P.3d 505]; People v. Lucas, supra, 12 Cal.4th 415, 457; People v. Hawkins (1995) 10 Cal.4th 920, 948–949 [42 Cal.Rptr.2d 636, 897 P.2d 574]; People v. Clark (1993) 5 Cal.4th 950, 1013 [22 Cal.Rptr.2d 689, 857 P.2d 1099].)
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.] ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 960 [86 Cal.Rptr.2d 243, 978 P.2d 1171]; see also People v. Prieto, supra, 30 Cal.4th 226, 260.)
We find that the prosecutor’s statements are supported by the record. “This is not a case like those cited by defendant in which a prosecutor’s statements implied the existence of facts outside the record of which counsel, but not the jury, were aware.” (People v. Rundle (2008) 43 Cal.4th 76, 161 [74 Cal.Rptr.3d 454, 180 P.3d 224].) “ ‘ “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide.” ’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 835 [38 Cal.Rptr.3d 98, 126 P.3d 938].) In arguing that defendant failed to profess his innocence during prearrest conversations with family, friends and police officers, the prosecutor was properly drawing inferences from the record and making fair comment on the state of the evidence. (People v. Cook (2006) 39 Cal.4th 566, 608 [47 Cal.Rptr.3d 22, 139 P.3d 492].) “Counsel’s suggestions concerning those inferences were not improper invitations to the jury to engage in speculation or references to facts outside the record.” (People v. Rundle, supra, at p. 162.)
As to defendant’s argument that the prosecutor’s reference to his prearrest silence as evidence of guilt was an improper comment on his assertion of the privilege against self-incrimination, the law is unsettled. The United States Supreme Court has firmly established that prearrest silence may be used to impeach the credibility of a defendant who chooses to testify. (Jenkins v. Anderson (1980) 447 U.S. 231, 240 [65 L.Ed.2d 86, 100 S.Ct. 2124]; People v. Wood (2002) 103 Cal.App.4th 803, 808 [127 Cal.Rptr.2d 132].) As we have mentioned, however, defendant’s prearrest silence was offered not to impeach him, but rather as evidence of guilt, and for that purpose, a conflict in the law exists. “[A]lthough the Supreme Court has held that the government may comment on a defendant’s prearrest silence for impeachment purposes, it has yet to rule on the constitutionality of the use of prearrest, pre-Miranda silence as substantive evidence of guilt.” (Waldie, supra, 173 Cal.App.4th 358, 365.) The issue has generated a split of authority among the federal circuit courts. Focusing on the fact that defendant is not in custody, some circuits have determined that to comment on defendant’s prearrest silence is permissible. (See United States v. Zanabria (5th Cir. 1996) 74 F.3d 590, 593; United States v. Oplinger (9th Cir. 1998) 150 F.3d 1061, 1066–1067 [overruled on other grounds in United States v. Contreras (9th Cir. 2010) 592 F.3d 1135]; United States v. Rivera (11th Cir. 1991) 944 F.2d 1563, 1567–1568.) Other federal circuit courts have taken a different view and decided that use of a defendant’s prearrest silence as substantive evidence of a crime may violate the Fifth Amendment’s privilege against self-incrimination. (See Combs v. Coyle (6th Cir. 2000) 205 F.3d 269, 283; United States v. Burson (10th Cir. 1991) 952 F.2d 1196, 1201; Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, 1568; United States ex rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011, 1017.)
A recent California case has adopted the position that “ ‘ “application of the privilege is not limited to persons in custody . . . ; it may also be asserted by a suspect who is questioned during the investigation of a crime.” [Citation.]’ [Citation.]” (Waldie, supra, 173 Cal.App.4th 358, 366.) In Waldie, the detective testified that the “defendant did not follow up on his promise to call when the detective was attempting to investigate the case. But the detective went beyond saying the defendant did not call him back. In fact, the detective described repeated attempts to contact defendant—more than a dozen times—making it appear that defendant was evading the police. The prosecutor also placed emphasis on defendant’s continuing failure to call the police.” (Ibid.) The court concluded that “the evidence and argument violated the Fifth Amendment because defendant was deprived of any meaningful right to refuse to talk to the police. If the police are allowed to call a suspect persistently and then offer his unwillingness to respond as evidence of guilt, a defendant would never be able to claim the protection of freedom from incrimination. A different result might be indicated if the detective had called defendant only one time or a few times. But testimony about repeated phone calls and apparent evasiveness by defendant is constitutionally infirm.” (Ibid.)^[8]
Without adopting a firm or general position on the use of prearrest silence to prove guilt, we conclude that no prejudicial prosecutorial misconduct occurred under the facts presented here. First, defendant’s silence during prearrest conversations with third parties does not implicate his privilege against compulsory self-incrimination. When speaking to his family or friends, including Heidary, prior to his arrest, defendant was under no official compulsion to speak and was not confronted with any accusatory statement. Even in defendant’s telephone conversation with Richmond Police Officer Lori Curran, nothing in the record suggests that he consciously invoked his constitutional right to remain silent. (People v. Medina, supra, 51 Cal.3d 870, 890–891.) In any event, given the uncertain state of the law on the use of prearrest silence to prove guilt, and absent any objection from the defense or ruling that excluded the evidence, we conclude that the prosecutor’s argument did not rise to the level of the use of deceptive or reprehensible methods to attempt to persuade the jury. (See People v. Crabtree (2009) 169 Cal.App.4th 1293, 1318 [88 Cal.Rptr.3d 41].) Thus, no misconduct was committed, and defense counsel’s failure to object did not result in a violation of defendant’s constitutional right to effective representation. (People v. Salcido (2008) 44 Cal.4th 93, 152 [79 Cal.Rptr.3d 54, 186 P.3d 437]; People v. Lopez (2008) 42 Cal.4th 960, 968 [71 Cal.Rptr.3d 253, 175 P.3d 4]; People v. Nguyen (2010) 184 Cal.App.4th 1096, 1122 [109 Cal.Rptr.3d 715]; People v. Dickey (2005) 35 Cal.4th 884, 915 [28 Cal.Rptr.3d 647, 111 P.3d 921].)
IV. The Instruction on Unjoined Perpetrators.
Defendant’s final contention is that the trial court erred by giving the instruction on unjoined perpetrators in the terms of CALJIC No. 2.11.5.^[9] He complains that the instruction is prohibited “if it pertains to a prosecution witness,” “because the defendant is entitled to argue that the immunized witness lied in incriminating the defendant; and that the witness agreed to testify for the prosecution, and to falsely blame the defendant, in order to avoid being prosecuted for the same crime, or to obtain a lesser conviction or lesser sentence.”
The very same issue has been addressed frequently by the California Supreme Court. In People v. Brown, supra, 31 Cal.4th 518, 560, the defendant asserted that the CALJIC No. 2.11.5 instruction improperly removed from the jury’s consideration the “potentially impeaching fact that [a prosecution witness] had been granted immunity,” and other witnesses “were potential accomplices subject to prosecution,” and thereby eliminated “potential grounds of bias and motive that could have undermined the testimony of those three witnesses,” in violation of “his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as analogous state constitutional provisions.” (Brown, supra, at p. 560.) The court responded: “We have addressed and rejected this precise claim in other cases. ‘The purpose of [CALJIC No. 2.11.5] is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators. [Citation.] When the instruction is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, [jurors] will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant’s guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses. [Citation.] Although the instruction should have been clarified or omitted [citations], we cannot agree that giving it amounted to error in this case.’ [Citations.]” (Id. at pp. 560–561; see also People v. Cain (1995) 10 Cal.4th 1, 35 [40 Cal.Rptr.2d 481, 892 P.2d 1224]; People v. Price (1991) 1 Cal.4th 324, 446 [3 Cal.Rptr.2d 106, 821 P.2d 610].)
Here, the full set of instructions on witness credibility and assessing the testimony of accomplices, including the direction to consider the existence of any bias, interest, or other motive on a witness’s part (CALJIC No. 2.20) and to view the testimony of an accomplice with caution (CALJIC No. 3.18), were given. Where the jury has been so instructed, the California Supreme Court has “repeatedly held, giving CALJIC No. 2.11.5 is not prejudicial error.” (People v. Brasure (2008) 42 Cal.4th 1037, 1055 [71 Cal.Rptr.3d 675, 175 P.3d 632].) Adhering, as we must, to established authority, we find that no instructional error was committed in this case.
DISPOSITION
Accordingly, the judgment is affirmed.^[10]

	__________________________________ Dondero, J.
We concur: __________________________________ Margulies, Acting P. J. __________________________________ Banke, J.

People v. Hollinquest, A124613

Trial Court	Contra Costa County Superior Court
Trial Judge	Honorable Teresa Canepa
For Plaintiff and Respondent	Edmund G. Brown, Jr. Attorney General Dane R. Gillette, Chief Assistant Attorney General Gerald A. Engler, Senior Assistant Attorney General Gregg E. Zywicke, David H. Rose, Deputies Attorney General
For Defendant and Appellant	Stephen B. Bedrick, Esq.

People v. Hollinquest, A124613

Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by San Diego County Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---