Filed 11/19/14 P. v. Payne CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C069583

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF113417A)

         v.

GEORGE ALEXANDER PAYNE III,

                   Defendant and Appellant.




         Following a jury trial, defendant George Alexander Payne III was convicted of
torture (Pen. Code, § 206),1 aggravated mayhem (§ 205), infliction of corporal injury to a
cohabitant or fellow parent of a child (§ 273.5, subd. (a)), assault with a deadly weapon
(§ 245, subd. (a)(1)), false imprisonment by violence (§ 236), misdemeanor battery on a
spouse (§ 243, subd. (e)), and criminal threats (§ 422), with enhancements for great




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.

                                                             1
bodily injury (§ 12022.7, subd. (e)). The trial court sentenced defendant to 14 years to
life plus three years.
       On appeal, defendant contends the prosecutor’s cross-examination of him violated
Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle).
       We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                   Prosecution’s Case
       S.B. is the mother of defendant’s two sons, G.P. and J.P. Her daughter K.B. was
four and one-half years old when S.B. and defendant began their 12-year relationship.
S.B. moved in with defendant in 1997. After one and one-half to two years, the
relationship became emotionally abusive. They also used methamphetamine together.
       In 1999, defendant held a knife to S.B.’s neck while they were in bed. Defendant
pulled a knife on her in a similar manner on two or three other occasions.
       Defendant disciplined K.B. by making her stand in the corner for hours to an
entire day or night. S.B. was afraid to prevent defendant from punishing K.B. Defendant
also inflicted similar punishment on S.B., making her stand in the corner on numerous
occasions. He would also make S.B. sit in the corner to sleep, and would call her
demeaning epithets when he was particularly angry. If S.B. got angry, defendant became
more verbally abusive and would push her against a wall.
       S.B. went to a women’s shelter in September 2003 because defendant punished
her with sleep deprivation. She took G.B., who was then an infant, with her. After her
first evening there, defendant called and told her not to stay more than 24 hours or the
police would be notified. Defendant told S.B. he found her location from an associate
and would always be able to find her.
       Defendant picked up S.B. from the shelter. He immediately punched her in the
nose, giving her a bloody nose. He told S.B., “ ‘I’ll show you why women go to a
shelter,’ ” and “ ‘[n]ow you know how it feels to have your son taken away.’ ” He then

                                             2
drove out to the Delta towards the river. While defendant drove, he told S.B. she should
not have taken his son and she would regret doing so. Once at the river, defendant told
S.B., “ ‘This is where you have to say goodbye to your son’ ” and told her to get out of
the car. Defendant then pointed a gun at the back of S.B.’s head, and told her to say
goodbye to her son. Defendant made S.B. take off her clothes; he then took out a
blanket, pulled down his pants, told S.B. to beg for his forgiveness, and made her perform
oral sex on him. Eventually, defendant told S.B. that was enough, told her to get dressed
and get back into the car, and then drove S.B. and their son home. S.B. waited about a
week to call the police because she thought defendant would kill her. Thereafter,
defendant threatened her constantly, saying such things as he was thinking of a way to
torture her and that she would die a terrible death.
       The relationship improved when they lived with defendant’s mother for two years.
However, defendant would quietly threaten S.B. at night when no one was present.
       The next major incident occurred on March 20, 2009, when S.B. came home late
from work. Defendant was angry, and he pushed a frightened S.B. against a wall while
pushing a metal bar capped at both ends against her throat. S.B. testified that she
eventually left home and went to a local bar, where she met a man, went to his home, and
had sex with him. The man dropped her off at her father’s house, where defendant
picked her up. On cross-examination, S.B. said she met two men and had sex with both
of them.
       S.B. told defendant about the sexual encounter while he drove her home.
Defendant yelled at her, hit her several times, told her to take her clothes off, and threw
the clothes out the window. Upon arriving at home, defendant made S.B. stay in the
garage while he sent the children to the park. He then took S.B. to the bedroom and
made her stand in the corner. Saying she did not deserve to be a mother and lost her right
to be a mother, defendant hit her two or three times on the buttocks with the capped metal
bar. He also “chopped [] off” S.B.’s hair with a pair of scissors, saying her hair contained

                                              3
bad chemicals from drugs and she did not deserve to be treated like a human anymore.
Defendant then shoved S.B.’s nose against a corner. He then took her to the bathroom
shower and told her she had germs on her from the house where she had the affair and to
take a shower. He then urinated on her. He turned on the water and made her take a cold
shower, saying that she did not deserve to have hot water. Defendant next forced her into
the bedroom without allowing her to dry off, made her stand in the corner, and then hit
her with the metal bar. She lost count how many times she was struck, but may have told
the police she was hit “thirty or so” times. He then made her stand in the corner all day,
telling the children their mother was not feeling well.
       Defendant apologized the following Sunday, and their relationship improved for
awhile. S.B. was forced to stay in the bedroom during this time; she could take meals in
the kitchen but was not allowed to talk to the children. When she tried to leave the room
at the end of April 2009, defendant hit her lower leg with the metal bar, causing her to
fall. When S.B. said she could not get up, defendant said he would hit her if she did not
get up, and laughed as she struggled. He then hit her about 30 times.
       Some time after Memorial Day, defendant told S.B. he was done being nice with
her because she did not tell him everything about the affair. He would then make her
stand in the corner for 16 to 18 hours a day. Defendant allowed her to eat only twice a
day. By the middle of June, she was limited to one daily meal.
       During the week of June 12-19, 2009, defendant made S.B. stand in the corner for
17 hours at a time, causing her legs to go numb. He also hit her with the metal bar 50 to
100 times during the week, putting her clothes in her mouth to muffle the screams.
Defendant also withheld drugs from S.B., saying he was waiting for her to pass out so he
could hit her in the head and bury her body in the backyard. He tied and gagged her with
duct tape, and burned her with a hot methamphetamine pipe. Defendant burned her with
the methamphetamine pipe at least six times, and would then beat her burns with the
metal bar.

                                             4
       On June 19, 2009, S.B. left and drove to Reno, Nevada. She spent two nights in a
women’s shelter and three days in a hospital. When defendant called and said they had to
appear at a dependency hearing, she returned home.
       S.B. was treated at St. Mary’s Hospital in Reno on June 23, 2009. She had
multiple second degree burns and bruises of various ages, and appeared to have been
injured over multiple events. Her legs were extremely swollen, which could have
resulted from prolonged standing. She had lost a lot of blood and required a transfusion.
S.B. gave inconsistent descriptions of how she sustained her injuries.
       According to K.B., who was 19 years old by the time of her testimony, defendant
would make her stand in the corner for up to an hour. S.B. stayed in her room for a three-
month period starting around March 2009, coming out only to go to the bathroom and
sometimes to eat. She would hear her mother scream in the bedroom every night during
that time period. S.B.’s legs, thigh, arm, and face looked a “little” bruised. K.B. did not
ask S.B. why she was spending so much time in the room because she did not want to get
involved.
       A search of the family’s home found a methamphetamine pipe and a two-foot long
metal bar capped at both ends. The officer saw red spots on the bedroom wall which
might have been blood. The metal bar also looked like it might have blood on it.
                                       Defense Case
       Defendant testified. He denied ever holding a knife to S.B.’s throat. He had not
abused her before she went to the shelter in 2003. He thought she was going to a drug-
treatment program. Defendant went to the shelter to meet her. As he started to drive
away, S.B. yelled for him to stop. Defendant stopped, and she punched him in the nose
before getting into the car. Defendant did not hit her. He never made K.B. stand in the
corner all day.




                                             5
       S.B. eventually took over the family finances. Their relationship deteriorated
because she lied about their finances. Defendant found a white powder in S.B.’s
possession at this time, and noticed she was acting differently.
       They decided to separate and to wind down their relationship by the end of the
school year in 2009. In March 2009, defendant called S.B. at work after discovering that
their savings was gone. When S.B. arrived home at 6:30 p.m. the next day, defendant
was dumping her drugs and alcohol in the bathroom. S.B. pushed defendant and said the
drugs were a friend’s. Defendant did not push the metal bar to her throat.
       Defendant told S.B. to leave after smelling alcohol on her breath. She took the car
keys, so defendant grabbed them because she was drunk. S.B. then hit defendant with the
bar while he was cleaning the bathroom. Defendant fell down. He then pushed S.B. out
of the bathroom, went to the bedroom, and sat on the bed. S.B. jumped on defendant and
hit him with the metal bar. As they grappled for the bar, defendant struck her on the
ankle with it. S.B. left and went to her father’s house.
       Defendant testified he did not take drugs or abuse S.B. during this period. He
never hit her with the bar, did not make her stand in the corner, and never withheld food.
He did see groups of people having sex in the house.
       Defendant also testified that S.B. showed him a video of her masturbating with the
bar. The video also showed her hitting herself with the bar, as well as a pool cue, a dildo,
and a pink strap. She told defendant that she hit herself, and that other people had hit her
at parties.
                                      DISCUSSION
       Defendant’s sole contention is that the prosecutor’s cross examination of him
concerning S.B.’s alleged videos violated Doyle v. Ohio, supra, 426 U.S. 610. We
disagree.




                                             6
                                     A. Background
        During the prosecutor’s cross-examination of defendant about the videos, the
following took place:
        “[PROSECUTOR]: Do you have any of these videos?
        [¶]…[¶]
        “[DEFENDANT]: For a while there was -- I found some. I didn’t keep them. I
thought she took them all. I found them in some of the other videos of our family events.
        “[PROSECUTOR]: And you kept them. Do you have them with you?
        “[DEFENDANT]: No, ma’am.
        [PROSECUTOR]: Why not?
        “[DEFENDANT]: Don’t know where they were. She said -- [S.B.] told me she
went and took them. Good luck using them in court.
        “[PROSECUTOR]: You said you found a couple of them. When did you find
them?
        “[DEFENDANT]: In the fall of 2009.
        [¶]…[¶]
        “[PROSECUTOR]: You had already been charged in this case, correct?
        “[DEFENDANT]: I don’t think you charged me with this by then, did you?
        “[PROSECUTOR]: Did police come and talk to you in June of 2009?
        “[DEFENDANT]: Yes, ma’am.
        “[PROSECUTOR]: Okay. Did you tell the police you got these tapes that you’re
now testifying to?
        “[DEFENDANT]: No.”
        At this point, defense counsel objected and asked to approach the bench. The trial
court then called the morning recess. During the recess, defense counsel told the trial
court that defendant invoked his rights under Miranda v. Arizona (1966) 384 U.S. 436
[16 L.Ed.2d 694] when he was arrested in July 2009. Counsel argued, “It is completely

                                             7
improper for the prosecutor to go into this matter when she knows his Miranda rights
have been invoked. I think it’s bordering very close to a mistrial that may have to be
sought in this matter if she continues on this line of questioning.” The prosecutor
responded, “I didn’t want to go into this line of questioning. Actually, the defendant
opened it up by saying, hey, there’s these videos I see. The victim, [S.B.], says she has
these videos. Good luck using it in court. It was reasonable to follow up to say wait a
minute, you’re testifying to things that existed that supposedly go towards your
innocence, ‘cause she’s beating herself and you don’t have them or haven’t told anybody
why.”
        The trial court sustained the objection, finding questions concerning defendant’s
post-Miranda failure to tell the police about the videos were improper.2 The court
indicated it would admonish the jury to disregard the last two questions and answers
without repeating the specific questions and answers. Following unrelated discussions
with the attorneys and defendant, the trial court recalled the jury and gave the following
instruction: “[W]ith respect to the last two questions, ladies and gentlemen, the objection
is sustained. I would ask and order you to disregard the last two questions, last two
responses. [¶] And it is ordered that those questions and responses be stricken from the
record.” The prosecution’s cross-examination of defendant then resumed.
        A short time later, the prosecutor returned to questions about the videotapes.
        “[PROSECUTOR]: And now, you said that you found some of these tapes in fall,
which would have been September, October time of 2009. Do you still have them?


2 Even after the trial court sustained the objection, the prosecutor persisted, stating that
she wanted to ask defendant about some letters about which he had testified and whether
he had turned those over to the police. After the trial court further explained its ruling by
reading a passage from one of the cases it had researched during the break, the prosecutor
asked, “Would the Court -- after lunch if I could do some legal research. If I can find
cases, would the Court be willing to at least review the ruling?” The trial court said it
would, but the prosecutor never returned to the subject.

                                              8
       “[DEFENDANT]: No.
       “[PROSECUTOR]: Where are they?
       “[DEFENSE COUNSEL]: Objection. Based on the court’s prior ruling.”
       After a bench conference, the trial court sustained the objection on the grounds
that the question had been asked and answered.3
                                         B. Analysis
       It is a fundamental, well-settled rule that the prosecution’s use at trial of a
defendant’s silence following Miranda warnings violates due process. (Doyle, supra,
426 U.S. at p. 619.) The Doyle rule is premised on the recognition that it is
fundamentally unfair to “ ‘permit the prosecution during the trial to call attention to [the
defendant’s] silence at the time of arrest and to insist that because he did not speak about
the facts of the case at that time, as he was told he need not do, an unfavorable inference
might be drawn as to the truth of his trial testimony….’ ” (Ibid.)
       Defendant argues the prosecutor’s questions violated Doyle by impeaching him
with his silence after he invoked Miranda. He claims the trial court’s admonition did not
cure the error due to the lapse of time between the cross-examination and the admonition
and because the trial court did not reference the specific questions and answers it had
stricken in the admonition. He also complains that the warning did not inform the jury it
should not infer defendant “improperly exercised his right to silence when he was talking
to the police.”




3  Neither the bench conference nor a summary thereof is in the record before us.
However, we note that defense counsel had earlier indicated that the prosecutor’s
questions violated the attorney-client privilege in addition to making the Doyle objection.
The trial court did not address that the attorney-client privilege objection on the record,
finding only that there had been a Doyle violation. Defendant does not make a claim of
attorney-client privilege in this appeal.

                                               9
       In Greer v. Miller (1987) 483 U.S. 756 [97 L.Ed.2d 618] (Greer), the defendant
testified he had taken no part in a kidnapping, robbery, and murder, but the perpetrators
had admitted their crime to him. (Id. at p. 758.) On cross-examination, the prosecutor
asked: “Why didn’t you tell this story to anybody when you got arrested?” (Id. at
p. 759.) Before defendant answered, the trial court sustained defense counsel’s objection
and told the jury to ignore the question. (Ibid.)
       On review, the Supreme Court concluded there was no Doyle violation. The high
court reasoned, “the trial court in this case did not permit the inquiry that Doyle forbids.
Instead, the court explicitly sustained an objection to the only question that touched upon
Miller’s postarrest silence. No further questioning or argument with respect to Miller’s
silence occurred, and the court specifically advised the jury that it should disregard any
questions to which an objection was sustained. Unlike the prosecutor in Doyle, the
prosecutor in this case was not ‘allowed to undertake impeachment on,’ or ‘permit[ted]…
to call attention to,’ Miller’s silence. [Citation.] The fact of Miller’s postarrest silence
was not submitted to the jury as evidence from which it was allowed to draw any
permissible inference, and thus no Doyle violation occurred in this case.” (Greer v.
Miller, supra, 483 U.S. at pp. 764-765, fns. omitted.)
       In People v. Clark (2011) 52 Cal.4th 856 (Clark), our high court discussed Doyle
and Greer. In Clark, the prosecutor elicited evidence from an investigating officer that
the defendant invoked his Miranda rights and was thereafter informed he was under
arrest for murder and attempted murder. The prosecutor then asked whether there was a
change in the defendant’s demeanor after being advised of the charges. The officer
testified that the defendant showed no emotional reaction to being informed about the
charges and did not inquire as to who he was accused of murdering. Thereafter, defense
counsel moved for a mistrial contending the prosecutor had committed Doyle error.
(Clark, supra, 52 Cal.4th at pp. 958-959.) The trial court later admonished the jury,
“ ‘[Y]ou may recall that Detective Souza had responded that…when [defendant] was

                                              10
advised of the charges involved, not the name of the victims but the charges involved,
there was no verbal…response by him, the inference being that maybe there should have
been had you not already known, right? [¶] And I want to say to you that [the] evidence
of no verbal response is…now stricken by the Court, and that any such inference such as
the one I mentioned is not to be made. In other words, his silence is appropriate at that
point.’ ” (Id. at p. 959.)
       Citing Greer, supra, 483 U.S. at pages 764-765, the Clark court wrote: “The
United States Supreme Court has explained that a Doyle violation does not occur unless
the prosecutor is permitted to use a defendant’s postarrest silence against him at trial, and
an objection and appropriate instruction to the jury ordinarily ensures that the
defendant’s silence will not be used for an impermissible purpose. [Citation.] The trial
court did not abuse its discretion when it determined that any potential prejudice from
[the officer’s] testimony would be cured by its prompt admonition to the jury to disregard
the stricken evidence and the inferences adverse to defendant that could be drawn from it.
The court thus did not err in denying defendant’s motion for mistrial. [Citation.]”
(Clark, supra, 52 Cal.4th at p. 959, first italics in original, second italics added.)
       Here, just as in Greer and Clark, the fact of defendant’s postarrest silence was not
submitted to the jury as evidence from which it was allowed to draw any permissible
inference. Any potential prejudice was cured by the trial court’s instructions. Thus, there
was no Doyle violation.
       Defendant asserts that because of the trial court’s decision to not include the
specific questions and answers it struck in the admonition and the time that went by
during the recess, the jury may not have recalled the specific questions encompassed by
the admonition. While the passage of time may so attenuate an admonition as to render it
ineffective, in our view, this is not such a case. Only approximately 20 minutes elapsed
between the beginning of the recess and the court’s admonition.



                                              11
       Citing Clark, defendant contends that “the proper approach” would have been for
the trial court “to inform the jury that it should disregard any inference that [defendant]
improperly exercised his right to silence when he was talking to the police.” However,
unlike Clark, the jury here never heard that defendant invoked his right to remain silent.
While the trial court’s admonition in Clark was appropriate given the circumstances in
that case, it would have been improper for the trial court here to suggest by such an
admonition that defendant had invoked his right to remain silent.
       Defendant also suggests that the prosecutor’s later questions involving the time
period after defendant had invoked Miranda, were improper and somehow made the
admonition ineffective. However, the question about which defendant complains related
to the whereabouts of video tapes defendant said he had found during that time period.
This question did not implicate Doyle, because the question did not implicate his post-
Miranda silence, but merely sought to determine the current location of the tapes about
which defendant testified. It is well-settled that it is not inappropriate for the prosecutor
to comment on the defense failure to introduce material evidence. (People v. Gonzales
(2012) 54 Cal.4th 1234, 1275 [prosecutor’s comment on the failure to call logical
witnesses was not improper]; People v. Cornwell (2005) 37 Cal.4th 50, 90 [“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.” ’ ”]; People v. Bradford
(1997) 15 Cal.4th 1229, 1340 [the prosecutor may comment on the lack of evidence,
which might have been presented in the form of physical evidence].) And the trial court
sustained the defense objection, not on Doyle grounds, but on the ground that the
question had been earlier asked and answered.
       We note that while the prosecutor commented on the failure to produce these tapes
during her closing arguments, she did not mention defendant’s failure to tell the police
about the videotapes. Thus, like in Greer, the prosecutor here did not attempt to use
defendant’s silence against him during her argument.

                                              12
       We also note that the trial court’s specific admonition curing the prosecutor’s
earlier Doyle error was reinforced when it instructed on CALCRIM No. 222 as part of the
final instructions to the jury. Pursuant to that instruction, the trial court told the jury,
“During the trial, the attorneys may have objected to questions or moved to strike
answers given by the witnesses. I ruled on the objections according to the law. If I
sustained an objection, you must ignore the question. If the witness was not permitted to
answer, do not guess what the answer might have been or why I ruled as I did. If I
ordered testimony stricken from the record you must disregard it and must not consider
that testimony for any purpose.”
       We presume the jury followed these admonitions, and there is nothing in the
record to rebut that presumption. (Greer, supra, 483 U.S. at p. 766, fn. 8.) As there was
no Doyle error, we reject defendant’s claim.
                                       DISPOSITION
       The judgment is affirmed.



                                                          MURRAY                 , J.



We concur:



      HULL                   , Acting P. J.



      DUARTE                 , J.




                                               13
