Filed 4/6/15 P. v. Askew CA3
                                           NOT TO BE PUBLISHED
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                                  C076394

                   Plaintiff and Respondent,                                     (Super. Ct. Nos. 62112964,
                                                                                         62116640)
         v.

THOMAS SPENCER ASKEW,

                   Defendant and Appellant.




         Defendant Thomas Spencer Askew and the victim, Richard Houser, were both
patrons at an Auburn bar and each carrying a knife when they encountered one another in
the men’s restroom. Both testified the other had been giving him dirty looks throughout
the evening. Houser testified defendant stabbed him in the neck because he would not
tell him his name; defendant testified he pulled his knife in self-defense. Faced with the
victim’s testimony that he did not take out his knife, contradicted by the testimony of the
witnesses that he did, and with defendant’s testimony that the victim had been the
aggressor, contradicted by evidence that defendant ran out of the bar, tossed his knife
with the victim’s blood on it, and was hiding behind a dumpster when arrested, a jury

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found defendant guilty of assault with a deadly weapon but also found the great bodily
harm enhancement allegation not true. Defendant admitted he had suffered a prior strike
conviction and a prior serious felony conviction, had served a prior prison term, and had
committed the charged offense while out on bail. He reached a plea agreement on
another case and as part of the agreement pleaded no contest to a single count of
infliction of corporal injury upon a cohabitant. (Pen. Code, § 273.5, subd. (a).)
       The sole issue on appeal is whether the prosecutor, with the trial court’s blessing,
violated defendant’s right to due process by eliciting testimony that he had failed to tell
police he stabbed Houser in self-defense, by cross-examining defendant on his failure to
tell police he stabbed Houser in self-defense, and by commenting during argument on
defendant’s silence. (Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle).) Only
one of the alleged Doyle errors during the prosecutor’s examination could have possibly
deprived defendant of due process, and the one “ ‘brief and mild’ ” query by the
prosecutor that might be characterized as a Doyle transgression was harmless beyond a
reasonable doubt. (People v. Crandell (1988) 46 Cal.3d 833, 879 (Crandell).) The
judgment therefore is affirmed.
                                          FACTS
Facts Related to the Commission of the Offenses
       Few additional facts about the commission of the assault are relevant to our
disposition of the asserted Doyle error. Our attention, therefore, is focused on the facts
involving the alleged Doyle errors.
       The bartenders knew Houser because he had been helping out at the bar for a
couple of months before the assault, hoping to get a job. One of the bartenders testified
she served him one beer on the evening of September 3, 2012. The bartenders did not
know defendant. He, too, was at the bar on September 3, and depending on whom the
jury believed, he consumed several beers at home earlier and one or two drinks at the bar.
Houser and defendant encountered each other in the men’s restroom about 12:30 a.m.

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They were the only witnesses to what occurred in the restroom, and as mentioned above,
each testified that the other was the aggressor.
       Angry and afraid, Houser emerged with blood shooting out of his neck. A
bartender trainee saw him with one hand grabbing his neck and the other holding a knife.
A bartender saw him with both hands raised and no knife. But a short while later, she did
see a knife in his hand and she took it from him. She forgot about the knife when she
was interviewed by the police but gave it to a friend of Houser. She believed the knife
was not relevant because Houser had not mentioned it when he told her what happened.
Houser testified that he never took out a tiny knife he had in his pocket. Houser’s wound
was one to one and one-half inches deep. The emergency room doctor opined that
Houser was somewhat intoxicated.
       The police and medical aid arrived. The police found defendant, who weighed
nearly 300 pounds at the time, behind a nearby dumpster. One of the bartenders
identified defendant in an in-field showup. What defendant did and did not tell the police
officers comes later. He had a cut on one finger and was “slightly unsteady on his feet.”
At trial, he testified that Houser attacked him in the bathroom with a knife, and he pulled
out his knife only after he saw that Houser was holding a knife at the side of his leg. He
ran out of the bathroom and fled through the back patio, fearing that if he stayed, one of
the men would kill the other. He testified he acted only in self-defense. The police
located the knife defendant had tossed near another dumpster. The parties stipulated that
DNA testing from the knife showed Houser’s blood and defendant’s fingerprint.
       Defendant’s ex-girlfriend, Samantha Foreman, testified he was always violent,
whether he drank or not, but he was more violent when he was drinking. On April 2,
2012, defendant was drunk. He grabbed Foreman by the throat and held her against the
wall, leaving bruises. In surrebuttal, Foreman’s neighbor and friend testified that
Foreman was a regular drug abuser. According to her friend, she physically abused
defendant on at least two occasions and did not appear fearful of him as she was doing it.

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Facts Involving Alleged Doyle Errors
       The Prosecutor’s Examination of Officer Neher
       Tyler Neher, a recent graduate of the police academy and a police officer in
training, was one of the two officers who went to look at defendant after another officer
found him behind the dumpster. Defendant told Officer Neher he “was just behind the
dumpster sleeping at Bicentennial Park and that we had detained the wrong individual.”
Defendant then told the officers that he wanted to be transported to the jail so he could
speak with his lawyer and prove his innocence. Defense counsel cross-examined Officer
Neher extensively about whether other witnesses had told him that Houser was wielding
a knife. On redirect, the prosecutor asked, “At any point in time did the defendant tell
you that the victim had a knife?” The officer responded, “He did not.” Defense
counsel’s objection was overruled.
       The Prosecutor’s Cross-examination of Defendant
       During cross-examination, the prosecutor asked in several different ways whether
defendant had fallen asleep just after fleeing for his life and whether he told the police
officers that Houser had attacked him, or about his near escape or the fact Houser might
still be there. Defendant stated repeatedly he had not. Finally the prosecutor asked,
“[Y]ou don’t feel the need to tell [the officers] what happened?” After the court
overruled a defense objection, defendant responded, “No, I did not.”
       The Prosecutor’s Argument
       The prosecutor quoted CALCRIM No. 362 and argued: “If the defendant made a
false statement, false or misleading statement related to the charged crime, knowing that
the statement was false or intending to mislead, that conduct may show he was aware of
his guilt of the crime and you may consider it in determining the guilt.
       “You got the wrong guy. You got the wrong guy, saying it wasn’t me. When the
defendant was on the stand, I asked him, I go, you had the opportunity to tell the officers
that you were just in the bar, that someone attacked you and then you fled. He didn’t say

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that. Does that make sense? If you are truly in fear of your life and you fled and you ran
and you have hidden behind a dumpster, wouldn’t you be relieved when the officers are
there? As soon as you see an officer, would you be like, I am so happy you are here.
You don’t know what just happened. I was in the bathroom, this guy came at me with a
knife. It was all a cluster. I can’t remember everything, and I just ran, but he has a knife.
No. That is not what he said when he was given that opportunity.
       “Deputy Garbutt said as soon as he came out from behind the dumpster, he said I
was sleeping. I was sleeping behind the dumpster.
       “And Officer Neher later on talked to him again and again he says, no, I was just
sleeping behind the dumpster. You got the wrong guy.
       “And when asked about that, about that statement, defendant was like, yeah, I did
fall asleep. I just had probably the scare of my life when someone tried to stab me, I got
into a struggle, I pulled out my knife, may or may not have stabbed him, ran out the back,
went over to a different property, threw my knife, kicked down a gate, ran a couple of
hundred yards to the dumpster, adrenaline going, pumped up, excited, and I fell asleep.
Think about it. Does that make sense? You get that shot of adrenaline and near death
experience happens. The fight or flight instinct kicks in.”
       In final summation, the prosecutor returned to the same theme. He argued, “The
cops come. What is the most reasonable thing you do if you just got attacked by
someone with a knife? Hey, Officer, I was just at the California Club. This guy pulled a
knife out in the bathroom. I am glad you are here. Nope. Got the wrong guy. I was
sleeping behind the dumpster.”
       He later reiterated the same basic argument as follows: “Go back, look at the
evidence. Is it reasonable to believe that a 300-pound man is agile enough to move out of
the way of a tight area, grab his knife out, struggle, stab him, then run, take the only
weapon that he has already had to use to defend his life, toss it, and then run the rest of
the way up to the garbage cans, hide and then when contacted by officers, first sign of

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safety, say you got the wrong guy? I was just sleeping behind the dumpster. It is not,
ladies and gentlemen, it is not reasonable.”
                                      DISCUSSION
       “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 warnings to impeach the defendant’s trial testimony.” (People v. Collins (2010)
49 Cal.4th 175, 203 (Collins).) “[S]uch 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.” (Anderson v. Charles (1980)
447 U.S. 404, 407-408 [65 L.Ed.2d 222] (Anderson).) “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. . . .
       “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 (2005) 134 Cal.App.4th 1440, 1448.)
       There is no question that the prosecutor exploited defendant’s failure to raise his
claim of self-defense on the night he was apprehended behind the dumpster. As
demonstrated above, he elicited testimony from the officers, cross-examined defendant,
and argued vehemently that a person who had been assaulted with a knife would not have
run for his life and then settled in for a nap behind a dumpster. Nor, he argued, would a
victim, when found hiding behind the dumpster, tell the police they had the “wrong guy”
but not tell them that his assailant had threatened him with a knife. But there is a huge
gap in defendant’s argument that he was denied due process because the prosecutor
thereby committed a series of Doyle errors—he volunteered the statements used to
impeach him before the police recited his Miranda rights, including his right to remain
silent. Several cases clearly distinguish pre-Miranda silence from post-Miranda silence

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and exempt pre-Miranda silence from the Doyle prohibition against using a defendant’s
failure to offer a defense earlier to impeach him.
       In People v. Barker (1979) 94 Cal.App.3d 321, 328 (Barker) the defendant, before
he was a suspect, voluntarily gave a fully exculpatory story to the police. Because he was
not a suspect, he had not been given a Miranda warning. (Barker, at p. 329.) The court
held the prosecution had not sought to penalize the defendant for invoking his right to
silence, as in Doyle, but had sought to highlight the defendant’s two inconsistent stories.
There simply was no postarrest silence used to impeach the defendant’s story of coercion,
a story offered for the first time at trial. (Barker, at p. 329.)
       The court concluded: “Accordingly, at issue in this case is not an unconstitutional
intrusion into defendant’s right to remain silent (Doyle v. Ohio, supra, 426 U.S. 610), but
the propriety of using defendant’s prior voluntary statement to impeach an inconsistent
defense offered at trial. Since defendant’s first statement to the police was voluntary and
subject to no constitutional infirmity, it was proper for the prosecutor to probe the
inconsistency between defendant’s two stories.” (Barker, supra, 94 Cal.App.3d at
p. 329.)
       Similarly, in People v. Burton (1981) 117 Cal.App.3d 382, the defendant claimed
Doyle error when the prosecutor asked the officer whether he had come forward to give
any explanation about his involvement in the incident. The issue presented was whether
a defendant’s prearrest silence may be utilized to impeach him without violating his
constitutional rights to due process and to remain silent. (Burton, at p. 386.) Since there
was no governmental inducement to remain silent before arrest, the court found no
fundamental unfairness and concluded “the use of prearrest silence to impeach a
defendant’s credibility violates neither the Fifth Amendment nor the due process clause
of the Fourteenth Amendment.” (Burton, at pp. 386-387.)
       The same principles were at play before the United States Supreme Court in
Anderson, supra, 447 U.S. 404, although the facts were slightly different. In Anderson,

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the defendant voluntarily made statements to the police after he was arrested and given
his Miranda warnings. The Supreme Court again went right to the heart of the Doyle
rationale—there was no unfair use of the defendant’s silence because the defendant had
spoken voluntarily after receiving his Miranda warnings and therefore had not been
induced to remain silent. (Anderson, at p. 408.)
       And this same distinction was also made in Collins, supra, 49 Cal.4th 175. There,
as in Anderson, the defendant did not remain silent in response to the Miranda warnings.
He, too, provided a variety of explanations about his whereabouts at the time of the
murder, all of which differed from his trial testimony. (Collins, at p. 204.) The
California Supreme Court adopted the Anderson rationale that the prosecutor’s
solicitations referred to the defendant’s silence only insofar as his inconsistent description
omitted facts included in other versions of his whereabouts. (Collins, at p. 204.) A
defendant’s voluntary inconsistent statements, far from being induced by the
government’s assurance that the right to remain silent will be honored, do not infringe on
the constitutional rights sought to be protected by Doyle.
       We turn then to a careful inspection of the questions posed by the prosecutor and
the comments he made during argument, which in defendant’s view constitute Doyle
error. We will not “parse the prosecutor’s” examinations or argument; rather, we will
examine his questions and comments in the context in which they were delivered.
(Collins, supra, 49 Cal.4th at p. 204; see Anderson, supra, 447 U.S. at p. 408.)
       The prosecutor returned again and again to the same theme. In argument, he asked
the jurors to use their common sense and reject the notion that someone who had been
attacked with a knife would fall asleep behind a dumpster and, rather than telling them he
acted in self-defense, would tell the police they had the wrong guy. During cross-
examination of defendant, he challenged defendant with the same incongruity. Under the
authorities discussed above, the argument and cross-examination were entirely proper
because the prosecutor’s impeachment referred to the prearrest, pre-Miranda voluntary

                                              8
statements defendant made when first confronted by the police behind the dumpster. The
government at that point had done nothing to induce his silence, and there is nothing
inherently unfair about using the voluntary statement defendant blurted out before he was
arrested or Mirandized.
       There is only one brief question that might transgress Doyle. During the redirect
examination of Officer Neher, the prosecutor asked the arguably open-ended question,
“At any point in time did the defendant tell you that the victim had a knife?” As to this
question, defense counsel objected.1 Although the court believed the question was
getting close to proscribed territory, it overruled the objection. The Attorney General
argues that the question, in context, referred to the time period when the officers first
confronted defendant. We need not quibble whether this “brief,” “mild,” and “fleeting”
question constituted Doyle error in and of itself because even if we assume there was
error, it is manifestly harmless beyond a reasonable doubt. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 66; Crandell, supra, 46 Cal.3d at p. 879; People v. Hinton
(2006) 37 Cal.4th 839, 868.)
       We acknowledge that a single question can constitute Doyle error if it seeks to
exploit the defendant’s invocation of his right to silence after proper advisement.
(People v. Evans (1994) 25 Cal.App.4th 358, 368.) Defendant contends that his case is
strikingly similar to Evans because the prosecutor’s use of the phrase “at any point in
time” impeached defendant, not only with what he failed to say before he was
Mirandized, but with what he failed to say after he was Mirandized as well. Defendant
exaggerates the potential impact of the one, slightly overbroad question in light of all the




1 Defendant claims he did not receive adequate representation by counsel for failing to
object to numerous other Doyle errors committed by the prosecutor. Because we find
that none of the other questions or argument by the prosecutor constitute Doyle error, we
need not address his inadequacy of counsel claim.

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other questioning and argument by the prosecutor. At every other opportunity, the
prosecutor carefully confined his questions and argument to the statement defendant
volunteered as soon as the police arrived. He did not, as the prosecutor did in Doyle and
its progeny, unfairly penalize defendant for exercising his right to remain silent as he kept
the focus so consistently on defendant’s failure to tell the officers as soon as they
appeared at the dumpster that he had been attacked and was defending himself when he
pulled out a knife. We conclude, as the Supreme Court did in Coffman and Marlow,
Crandell, and Hinton, that the prosecutor’s brief, mild, and fleeting reference could not
have affected the jury verdict in this case and was harmless beyond a reasonable doubt.
       We note that our conclusion that the single question was harmless beyond a
reasonable doubt is predicated on our assessment of the unlikelihood the question
affected the jury and not on an assessment of the weight of the evidence in this case. The
Attorney General denigrates the strength of the defense and inflates the prosecution’s
case by ignoring evidence that impeached the victim’s testimony he never took out his
knife and had only one beer that night, as well as the jury’s anomalous verdict. While we
cannot speculate on the inferences the jury must have drawn to arrive at a verdict in
which an assailant who stabs a victim in the neck with a knife is guilty of assault with a
deadly weapon but at the same time finds a great bodily harm enhancement not true in
spite of evidence that the wound was one to one and one-half inches deep, blood was
squirting profusely from the victim’s neck, he was hospitalized, and he required several
stitches, we reject the Attorney General’s prejudice analysis. Whether or not the
evidence to support the verdict was merely sufficient or overwhelming simply does not
factor into our consideration whether, in context, the prosecutor’s question could have
affected the verdict. We conclude it could not have affected the jury verdict and
therefore any conceivable Doyle error is harmless beyond a reasonable doubt.
                                      DISPOSITION
       The judgment is affirmed.

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                            RAYE   , P. J.



We concur:



       BLEASE   , J.



      MURRAY    , J.




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