Filed 7/22/13 P. v. Robertson 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                                  C067172

                   Plaintiff and Respondent,                                      (Super. Ct. Nos. 08F7133,
                                                                                          08F7952)
         v.

ENOCH MARK ROBERTSON,

                   Defendant and Appellant.




         Convicted of drug offenses and driving on a suspended license (case No.
08F7133), as well as failure to appear (case No. 08F7952), defendant Enoch Mark
Robertson appeals. He contends: (1) trial counsel was constitutionally deficient for not
moving to suppress his statements, (2) the prosecutor improperly commented on his and
his wife‟s silence about the ownership of the drugs, (3) a witness improperly commented
on his and his wife‟s criminal history, (4) the prosecutor improperly elicited evidence
concerning his appearance and his wife‟s appearance, (5) he was prejudiced by improper
admission of evidence and his counsel‟s failure to object, and (6) the abstract of judgment
reflects the wrong statute as authority for a fine. We agree that the abstract of judgment

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must be corrected but find no prejudicial error. Therefore, we affirm the judgment and
remand for correction of the abstract of judgment.
                               FACTS AND PROCEDURE
       Officer Michael Skeen of the Redding Police Department made a traffic stop of a
vehicle the defendant was driving. The registration on the vehicle was expired. The
officer asked the defendant for his identification, but the defendant said he did not have
identification. The defendant then gave Officer Skeen a false name. After Officer Skeen
checked the name and told the defendant that he did not fit the description of that person,
the defendant admitted who he was and said that the vehicle belonged to his wife.
       Officer Skeen asked the defendant if any drugs found in the vehicle would belong
to him, and the defendant answered that they would be his. Officer Skeen then conducted
a lawful search of the car and found under the backseat a plastic bag with
methamphetamine in it. The officer asked the defendant what was in the bag and to
whom it belonged, and the defendant identified it as methamphetamine and said it
belonged to him.
       The parties stipulated that the search of the vehicle the defendant was driving was
legal. The jury was informed of that fact. The jury was not informed that it was a parole
search.
       In Shasta County case No. 08F7133, the defendant entered a no contest plea to
giving false identification. (Pen. Code, § 148.9, subd. (a).) After a jury trial on the
remaining counts, he was convicted of possession of a controlled substance (Health &
Saf. Code, § 11377, subd. (a)), transportation of a controlled substance (Health & Saf.
Code, § 11379, subd. (a)), and driving on a suspended license (Veh. Code, § 14601.1,
subd. (a)). Finally, the court found that the defendant had two prior prison terms (Pen.
Code, § 667.5, subd. (b)) and two prior convictions for driving on a suspended license
(Veh. Code, § 14601.1, subd. (a)).



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       In a related case (case No. 08F7133), the defendant entered a no contest plea to
failing to appear on a felony charge (Pen. Code, § 1320, subd. (b)) and admitted the
allegation that he committed the crime while released on bail or his own recognizance
(Pen. Code, § 12022.1).
       The trial court sentenced the defendant on both cases for an aggregate state prison
term of eight years eight months. It imposed (1) a term of four years for transporting a
controlled substance, with two consecutive one-year terms for the prior prison terms, and
(2) a consecutive eight months for failing to appear, with a consecutive two-year term for
the on-bail enhancement. The court also imposed and stayed a three-year term for
possession of a controlled substance and imposed a jail sentence of time-served for
driving on a suspended license.
                                      DISCUSSION
                                             I
                      Effectiveness of Counsel -- Miranda Warning
       The defendant claims on appeal that his incriminating statements to Officer Skeen
should have been suppressed because Officer Skeen did not give him a Miranda
warning.1 However, he forfeited this claim by failing to move to suppress the statements
in the trial court. (People v. Kelly (1992) 1 Cal.4th 495, 519.) Nevertheless, the
defendant contends that his trial counsel was constitutionally deficient for not moving to
suppress the statements. The contention is without merit because trial counsel‟s
performance did not fall below an objective standard of reasonableness.




1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

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       A.     Legal Background
              1.     Assistance of Counsel
       “Under both the Sixth Amendment to the United States Constitution and article I,
section 15 of the California Constitution, a criminal defendant has a right to the
assistance of counsel. [Citations.] This right „entitles the defendant not to some bare
assistance but rather to effective assistance.‟ [Citation.]” (People v. Mitchell (2008) 164
Cal.App.4th 442, 466, italics omitted.) To demonstrate ineffective assistance of counsel,
the defendant must show that counsel‟s performance fell below an objective standard of
reasonableness, and that he was prejudiced by counsel‟s performance. (Id. at pp. 466-
467.) In the context of failure to make a suppression motion, the defendant must
demonstrate prejudice by showing that such a motion would have been successful. (See
People v. Gonzalez (1998) 64 Cal.App.4th 432, 437-438.)
       Counsel is not required to make futile motions to appear competent. Reversal of a
conviction on the basis of inadequate counsel is required only if the record reveals no
rational tactical purpose for his or her act or omission. (People v. Terrell (1999) 69
Cal.App.4th 1246, 1252-1253.) Here, the record discloses a rational reason why the
motion was not made: the defendant was not in custody when he made the statements
and, therefore, a suppression motion would have been futile. Counsel‟s performance did
not fall below an objective standard of reasonableness.
              2.     Miranda Requirements
       “As a prophylactic safeguard to protect a suspect‟s Fifth Amendment privilege
against self-incrimination, the United States Supreme Court, in Miranda, required law
enforcement agencies to advise a suspect, before any custodial law enforcement
questioning, that „he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if



                                              4
he so desires.‟ ” (People v. Martinez (2010) 47 Cal.4th 911, 947, quoting Miranda,
supra, 384 U.S. at p. 479.)
       “An interrogation is custodial, for purposes of requiring advisements under
Miranda, when „a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.‟ (Miranda, supra, 384 U.S. at p. 444.)
Custody consists of a formal arrest or a restraint on freedom of movement of the degree
associated with a formal arrest. [Citations.] When there has been no formal arrest, the
question is how a reasonable person in the defendant‟s position would have understood
his situation. [Citation.] All the circumstances of the interrogation are relevant to this
inquiry, including the location, length and form of the interrogation, the degree to which
the investigation was focused on the defendant, and whether any indicia of arrest were
present. [Citation.]” (People v. Moore (2011) 51 Cal.4th 386, 394-395.)
       B.       Proceedings and Analysis
       On cross-examination, defense counsel questioned Officer Skeen concerning the
traffic stop and the officer‟s questioning of the defendant. At some point in the traffic
stop, Officer Skeen put the defendant, without handcuffs, in the back of the patrol car. It
appears this happened when Officer Skeen asked the defendant whether there was
anything illegal in the vehicle. Sometime after the defendant identified the
methamphetamine and admitted it was his, Officer Skeen arrested and handcuffed the
defendant and again put him in the back of the patrol car.
       The record does not reflect when the defendant exited the patrol car between the
two times he was put in. Again during cross-examination, defense counsel asked Officer
Skeen, “But [the defendant] was in the back of your car for the entirety from -- every
moment that he made a statement to you; isn‟t that correct?” Officer Skeen responded, “I
could explain that better to you on the side bar.” At that point an unreported sidebar
discussion was held and, when cross-examination resumed, defense counsel moved on to
other topics.

                                              5
       Officer Skeen could not remember whether he gave the defendant a Miranda
warning before asking him questions.
       The defendant asserts that he was in custody for the purpose of Miranda analysis
because he was in the back of Officer Skeen‟s patrol car when he was questioned, even
though he was not handcuffed. The record, however, does not necessarily support this
assertion. Officer Skeen‟s testimony at trial established that he put the defendant in the
back of the patrol car twice, once without handcuffs and later with. But the record does
not reflect how long the defendant was in the patrol car the first time and whether Officer
Skeen obtained the defendant‟s incriminating statements while the defendant was in the
patrol car. Therefore, we cannot presume the defendant was being held in the back of the
patrol car when he made the incriminating statements.
       Yet the defendant bases his Miranda argument on the presumed fact that he was
being held in the back of the patrol car when he made the statements. Since the factual
basis of the argument is not established, the argument fails.
       The defendant also complains that “he was stymied” from raising a Miranda issue
by the trial court‟s unreported sidebar rulings. Since the sidebar conferences were not
reported, we have no way of knowing what rulings the trial court made and again cannot
presume they prevented the defendant from making a proper Miranda objection.
       Because there is no factual basis in the record for the defendant‟s Miranda
argument, there is no evidence in the record that a motion to suppress his statements
would have been granted. Accordingly, the defendant‟s claim of ineffective assistance of
counsel is without merit.
                                             II
                                   Alleged Griffin Error
       The prosecutor asked Officer Skeen: “[I]n the two and a half years since [the
defendant‟s arrest], has he ever called you and said, uhmmm, I want to tell you whose
methamphetamine that really is?” Officer Skeen said, “No.” Immediately, defense

                                             6
counsel asked to approach the bench. After an unreported sidebar discussion, the court
told the jury: “With respect to the last, uhmmm, question and answer, I‟m going to ask
that you disregard the answer. Okay. So just assume you never heard it.” The
prosecutor then asked Officer Skeen whether the defendant‟s wife had ever called him to
report that the methamphetamine belonged to her. Officer Skeen responded that she had
not.
       The defendant contends that the prosecutor committed prejudicial misconduct
under Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin) when he asked
whether the defendant had later disclaimed the methamphetamine. He also contends that
the prosecutor committed prejudicial misconduct by raising the issue of whether the
defendant‟s wife ever claimed ownership of the methamphetamine because the question
“impinged on [the defendant‟s] spousal privilege.” Neither contention has merit.
Although the prosecutor‟s question about the defendant‟s failure to disclaim the
methamphetamine should not have been asked, it was not prejudicial because the trial
court instructed the jury to disregard it. The question about the wife‟s failure to claim
ownership of the methamphetamine did not violate the defendant‟s spousal privilege
because that privilege was not invoked.
       Griffin error occurs “whenever the prosecutor . . . comments, either directly or
indirectly, upon defendant‟s failure to testify in his defense.” (People v. Medina (1995)
11 Cal.4th 694, 755.) Here, the prosecutor should not have asked the question about
whether the defendant had later denied ownership because the failure to deny ownership
could be viewed by the jury as a failure, indirectly, to testify in his own defense.
However, the error was harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18 [17 L.Ed.2d 705].) The prosecutor‟s question was brief and
unrepeated and the answer was stricken. Also, the evidence of the defendant‟s guilt was
overwhelming. (People v. Brasure (2008) 42 Cal.4th 1037, 1060 [court‟s immediate and
unequivocal direction to jury not to consider comment, along with overwhelming

                                              7
evidence, rendered Griffin error harmless]; see also People v. Guzman (2000) 80
Cal.App.4th 1282, 1288-1290 [Griffin error required reversal because prosecutor‟s
comments on the defendant‟s failure to testify were “relentless” and evidence was not
overwhelming].)
       On the other hand, the prosecutor‟s question concerning whether the defendant‟s
wife had come forward to claim ownership of the methamphetamine was proper. A
defendant has a privilege to prevent his spouse from testifying concerning a confidential
communication between them. (Evid. Code, § 980.) Also, a married person has a
privilege not to testify against her spouse. (Evid. Code, §§ 970, 971.) Neither privilege
was implicated by the prosecutor‟s question to Officer Skeen. There was no evidence of
a confidential communication between the defendant and his wife, and there was no
evidence that the defendant‟s wife had invoked a privilege not to testify. Unlike Griffin
error, where even indirect comments on the defendant‟s failure to testify are prohibited,
there is no such prohibition on comments concerning a spouse‟s failure to testify.
(People v. Coleman (1969) 71 Cal.2d 1159, 1167, overruled on another ground in Garcia
v. Superior Court (1997) 14 Cal.4th 953, 966, fn. 6.)
       The defendant disagrees, citing People v. Ford (1988) 45 Cal.3d 431 at pages 444
to 445 (Ford). That case, however, is of no help at all to the defendant. It holds that the
prosecution may comment on the defense‟s failure to call a logically-anticipated witness.
(Id. at p. 449.) The language quoted from Ford by the defendant is from an older case
(People v. Terramorse (1916) 30 Cal.App. 267, 273), which relied on a superseded
formulation of the marital privilege. Ford expressly did not follow that older case.
(Ford, supra, at pp. 444-445.) Therefore, Coleman remains the pertinent law, and the
defendant‟s contention is without merit.




                                             8
       Finally, the defendant cites Evidence Code section 913, subdivision (a), which
states that the prosecution may not comment on the exercise of a privilege.2 That statute,
however, “has no application unless the privilege has actually been exercised.” (Ford,
supra, 45 Cal.3d at p. 444.) Since the marital privilege was not invoked, Evidence Code
section 913 does not apply here.
                                              III
                                       Prior Bad Acts
       In response to defense counsel‟s questioning, Officer Skeen disclosed that the
defendant had prior convictions and was on parole and that the defendant‟s wife had no
prior drug convictions. The trial court later instructed the jury not to consider evidence of
prior criminal history but denied the defendant‟s motion for a new trial. On appeal, the
defendant contends the evidence of his own criminal history and his wife‟s lack of
criminal history was improper. This contention is without merit because (1) defense
counsel elicited the evidence and (2) the trial court instructed the jury not to consider it.
       The defense called Officer Skeen as its own witness. Defense counsel questioned
Officer Skeen about why he did not do a field sobriety test and further investigate the
defendant for driving under the influence. Officer Skeen answered:
       “I‟m obviously not going to let a DUI driver continue driving, but if I‟m arresting
somebody on three felonies, impounding their vehicle, and they already have priors for
DUI on their -- that‟s the reason why their license is suspended, I figure if I take them to




2      Evidence Code section 913, subdivision (a) states: “If in the instant proceeding or
on a prior occasion a privilege is or was exercised not to testify with respect to any
matter, or to refuse to disclose or to prevent another from disclosing any matter, neither
the presiding officer nor counsel may comment thereon, no presumption shall arise
because of the exercise of the privilege, and the trier of fact may not draw any inference
therefrom as to the credibility of the witness or as to any matter at issue in the
proceeding.”

                                               9
jail where they‟re going to sit on their parole violation and impound their vehicle, that
kind of solves the DUI problem for the night.”
       After this answer, defense counsel asked for a sidebar conference. After the
sidebar conference, defense counsel continued the questioning without making an
objection or requesting a jury instruction.
       Defense counsel also questioned Officer Skeen about the defendant‟s wife, asking
whether he believed she was a methamphetamine user. Officer Skeen said she did not
look like a methamphetamine user. Defense counsel then asked: “And you came to that
opinion without doing any -- any further investigation other than just looking at her
appearance?” Officer Skeen responded: “I had overheard that she has no prior drug
convictions on her rap sheet as well.”
       Defense counsel immediately asked the court to strike the answer. The court
agreed and told the jury to “disregard that last answer.”
       Later, outside the presence of the jury, the defense made a motion for mistrial for
what it characterized as Officer Skeen‟s “gratuitous,” “nonresponsive” statements about
the criminal history of the defendant and his wife. The court noted that, as to Officer
Skeen‟s comment about the defendant‟s criminal history, defense counsel had made a
motion for mistrial at the sidebar conference but did not request a curative instruction.
The court denied the motion and stated that it would instruct the jury not to consider the
criminal history of the defendant and his wife. The court gave the instruction as
promised.
       The testimony concerning the criminal history of the defendant and his wife came
in response to defense questioning about Officer Skeen‟s motives and perceptions.
Therefore, any error was invited. “ „The doctrine of invited error is designed to prevent
an accused from gaining a reversal on appeal because of an error made by the trial court
at his behest.‟ ” (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 49.)



                                              10
       Even if we were to consider Officer Skeen‟s testimony to be an error attributable
to the prosecutor or the court, which it was not, any possibility of prejudice from it was
extinguished by the jury instruction informing the jury that it was not to consider any
evidence of criminal history. We presume the jury followed this instruction. (People v.
Williams (2010) 49 Cal.4th 405, 469.)
                                             IV
                            Character and Demeanor Evidence
       Officer Skeen testified that the defendant looked like a methamphetamine user and
the defendant‟s wife did not look like a methamphetamine user. The defense objected to
this testimony as lacking foundation, which objections the trial court overruled. On
appeal, the defendant contends that (1) Officer Skeen was not qualified as an expert in
identifying methamphetamine users, (2) the testimony should have been excluded under
Evidence Code section 1101, and (3) the testimony was an improper comment on the
defendant‟s courtroom demeanor. These objections were forfeited because the defendant
did not make them in the trial court. In any event, his claims of prejudicial error are
without merit.
       Officer Skeen testified for the prosecution that he was certified as a drug
recognition expert and had made about 100 arrests in cases involving narcotics, about
half of them involving methamphetamine. On cross-examination by defense counsel,
Officer Skeen stated that he was trained to recognize the physical appearance of someone
under the influence of a controlled substance. On redirect examination, the prosecutor
questioned Officer Skeen concerning the physical appearance of a long-term
methamphetamine user. The officer testified that such a user is gaunt, has a bad
complexion, and has tooth decay. When asked whether the defendant had any of these
characteristics, the officer said he did. At that point, defense counsel objected, stating,
“This lacks foundation.” The trial court overruled the objection, saying that it was
“[s]ubject to cross.”

                                             11
       The prosecutor asked Officer Skeen whether the defendant‟s wife, who was in the
courtroom, appeared to be a long-term methamphetamine user. He replied that she did
not appear to be. Defense counsel again objected based on a lack of foundation, and the
court stated: “Subject to cross, Counsel. It goes to the weight not the admissibility.”
       On appeal, the defendant abandons his lack-of-foundation objection to this
evidence and argues, instead, that the testimony should have been excluded because (1)
Officer Skeen was not qualified as an expert in identifying methamphetamine users, (2)
the testimony was improper character evidence under Evidence Code section 1101, and
(3) the testimony was an improper comment on the defendant‟s courtroom demeanor.
       “A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless . . .
there appears of record an objection to or a motion to exclude or to strike the evidence
that was timely made and so stated as to make clear the specific ground of the objection
or motion . . . .” (Evid. Code, § 353, subd. (a).)
       The defendant did not object to Officer Skeen‟s testimony based on the specific
grounds he asserts on appeal. Therefore, he forfeited these objections. (People v.
Alexander (2010) 49 Cal.4th 846, 905.)
       In any event, as noted above, this was not a close case. The defendant, caught
with methamphetamine in the vehicle he was driving, admitted that the
methamphetamine was his. Even if there had been error as to the evidentiary issues cited
in this argument, it would have been harmless.
                                              V
                             Cumulative Effect and Forfeiture
       The defendant further contends that, if we find the asserted errors forfeited or
harmless, we must still reverse because any forfeiture was occasioned by ineffective
assistance of counsel and cumulatively the errors were prejudicial. His argument is that,
if the jury had not been exposed to the evidence that the defendant alleges was admitted

                                              12
in error, it may have accepted the defendant‟s arguments that the methamphetamine
found in the vehicle did not belong to him. That argument, however, is simply
implausible because of the strength of the evidence against the defendant, as we have
already noted. Therefore, under any standard of prejudice, including the prejudice
required to establish ineffective assistance of counsel, there was no prejudice. (See
Chapman v. California, supra, 386 U.S. 18 [federal standard of harmless error, beyond a
reasonable doubt]; People v. Gonzalez, supra, 64 Cal.App.4th at pp. 437-438 [ineffective
assistance of counsel claim requires showing of prejudice].)
                                            VI
                                   Abstract of Judgment
       The defendant asserts that the abstract of judgment must be corrected to reflect the
proper statutory authority for a fine. The Attorney General agrees, as do we.
       The trial court imposed a fine of $760 for the defendant‟s conviction under Health
and Safety Code section 11379. As the defendant notes, the fine is authorized by Penal
Code section 672.3 However, the abstract of judgment reflects that the fine was imposed
pursuant to Penal Code section 1269b, which does not authorize the fine. Therefore, the
abstract of judgment must be corrected to reflect the proper statutory authority.




3      “Upon a conviction for any crime punishable by imprisonment in any jail or
prison, in relation to which no fine is herein prescribed, the court may impose a fine on
the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten
thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment
prescribed.” (Pen. Code, § 672.)

                                            13
                                       DISPOSITION
          The judgment is affirmed. The case is remanded with directions to correct the
abstract of judgment to reflect the proper authority for the $760 fine and to send the
corrected abstract of judgment to the Department of Corrections and Rehabilitation.



                                           NICHOLSON         , Acting P. J.



I concur:



      MAURO              , J.



I concur in the opinion except as to part I of the Discussion, as to which I concur in the
result:



      MURRAY             , J.




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