Filed 8/26/15 P. v. Vo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066160

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD248370)

KURTIS TINH VO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Affirmed.



         Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles Ragland, Scott C. Taylor and Kathryn Kirschbaum, Deputy Attorneys General,

for Plaintiff and Respondent.
                                    INTRODUCTION

       A jury found defendant Kurtis Tinh Vo guilty of robbery (Pen. Code, § 211)1 and

assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). Vo

additionally admitted having a prior strike conviction (§§ 667, subd. (b)-(i), 1170.12), a

prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)), and a prior prison

commitment conviction (§ 667.5, subd. (b)).

       Vo appeals, contending the court prejudicially erred by allowing the prosecution to

impeach his testimony with post-arrest silence in violation of Doyle v. Ohio (1976) 426

U.S. 610 (Doyle). We conclude any error was harmless beyond a reasonable doubt and

affirm the judgment.

                                     BACKGROUND

                                              I

                                  Prosecution's Evidence

       Victor Adams approached the victim at a bar and invited the victim to join him,

Vo, and two other men. The victim joined the group and subsequently agreed to

accompany them to a party. Driven by Vo, the group left the bar and traveled to a nearby

park. Upon arriving, they proceeded down a stairwell leading to the park. When they

reached the bottom of the stairs, Vo, Adams and one of the other two men began beating

the victim and demanded he hand over his possessions. They discovered the victim's

ATM card and demanded he withdraw all of his money. Although the victim agreed to



1      All further statutory references are to the Penal Code unless otherwise indicated.
                                              2
their demand, they continued beating him because they feared he would report them to

the police. They eventually stopped beating him and ran off, taking with them his

sweatshirt, shoes, military identification card, ATM card, electronic cigarette and

approximately $150 in cash. The victim then got up and ran in the opposite direction

through the park and toward a neighborhood, where some people helped him.

       San Diego Police Officer Truong Ta received a radio call about the incident and

went to the park. While positioned at the top of the stairwell, Officer Ta heard a voice

announce, "[T]he police are here" and saw two men in white T-shirts run away. Officer

Ta subsequently spotted Vo walking towards him on the sidewalk. Vo was sweating and

wearing a white T-shirt covered in plant debris. Officer Ta directed Vo to approach. He

then handcuffed Vo and placed him into the back of a patrol car. After leaving Vo to

help another officer detain three other suspects, Officer Ta returned to the patrol car,

searched Vo and discovered the victim's ATM card and electronic cigarette, as well as

$187 cash, in Vo's right front pants pocket. The victim identified Vo as one of his

assailants.

       A San Diego police detective assigned to investigate the incident interviewed and

examined all of the suspects for injuries, except Vo. At trial, when asked by defense

counsel why she did not examine Vo for injuries, the detective explained Vo "[had]

invoked" and she was not going to "visit him in jail after he wanted to speak to an

attorney."




                                              3
                                              II

                                     Vo's Testimony

                                              A

                                   Direct Examination

       Vo testified on his own behalf. According to him, as the group was driving to the

party, they learned it had been cancelled. At Adams's request, Vo drove them to

purchase marijuana instead. Upon arriving at the purchase location, Vo and the victim

stayed in Vo's car as Adams and the other two men left. The three men returned shortly

and the entire group went down the stairs leading to the park. Vo believed they were

going to smoke the marijuana they had just purchased. When Vo reached the bottom of

the stairs, he saw Adams attacking the victim and demanding money. Vo tried to stop the

assault by telling the victim to give his things to Adams so Adams would stop kicking

him. Vo also told Adams to stop hurting the victim. When Adams did not stop, Vo tried

to physically intervene and retrieve the victim's property, but he only managed to grab the

victim's ATM card and electronic cigarette.

       Around then, someone said the police had arrived and everyone ran. Vo ran after

the victim to see if he was okay and to return his belongings. Unable to locate the victim

in the park, Vo searched the street for him. Vo came upon Officer Ta who directed Vo to

approach. Officer Ta then handcuffed him, placed him into the back of a patrol car, and

later searched him. Vo claimed the money in his pocket was his.




                                              4
                                            B

                                     Cross-Examination

      As part of a wide-ranging cross-examination, the prosecutor asked Vo about his

failure to inform Officer Ta of his exculpatory explanation. The prosecution first asked

Vo why he did not seek help from the police after they arrived:

          "[PROSECUTOR]: At some point, you heard the police shout,
          correct?

          "[VO]: Yes.

          "[PROSECUTOR]: Now, it's your testimony that you were trying to
          help [the victim], right?

          "[VO]: Yes, sir. [¶] . . . [¶]

          "[PROSECUTOR]: When you heard the police and you saw him get
          beat up and you saw how disfigured he was, you didn't run back up
          the stairs and tell the police, 'Hey, something is going on down there.
          You got to help this guy. He is messed up. He looks messed up.'
          Did you?

          "[VO]: Sir, when all that was happening, somebody said 'police.'
          They ran. I followed him and tried to help him and see if he was
          okay.

          "[PROSECUTOR]: But, sir, when you were talking about trying to
          help someone, don't you go to the first person that you would seek
          help? Wouldn't that be the police?

          "[VO]: I was intoxicated at the time, sir. My mind was really
          cloudy. I did not know what to do, and my first thought was to
          follow him and see if he was okay and return his belongings."

      The prosecutor then asked Vo why he did not encourage the victim to seek help

from the police:



                                            5
         "[PROSECUTOR]: When you heard the word 'police,' you took off
         running, and it's your testimony that you ran after [the victim],
         correct?

         "[VO]: Yes.

         "[PROSECUTOR]: Did you ever shout out, ' … wait. The police are
         up there. Let's go find them'?

         "[VO]: [The victim] was ahead of me. I just yelled his name, and he
         did not stop or turn back. He kept on running."

      The prosecutor next asked why Vo did not seek help for the victim when he first

encountered Officer Ta:

         "[PROSECUTOR]: Now, you are walking back, and you see Officer
         Ta, right?

         "[VO]: Yes.

         "[PROSECUTOR]: When you see Officer Ta, you comply with what
         he tells you to do, correct?

         "[VO]: Yes, sir.

         "[PROSECUTOR]: At this point, you never tell Officer Ta, 'Hey.
         There is a guy hurt. He is somewhere around here. We should find
         him,' right?

         "[VO]: I did not know what to say at that time.

         "[PROSECUTOR]: There is stuff inside your pocket that belonged
         to [the victim]. You didn't reach into your pocket, pull that out, and
         go, 'This belongs to him. This belongs to him. We should try to find
         him to return this'? Did you ever tell that to [Officer] Ta --
         "[VO]: No, sir. [¶] . . . [¶]

         "[PROSECUTOR]: At no point did you ever tell Officer Ta that, in
         fact, there was someone hurt, and 'we should be looking for him. …
         I have his items right here in my pocket,' right? [¶] . . . [¶]

         "[VO]: No, I did not say that.

                                           6
          "[PROSECUTOR]: When you see the police, wouldn't that be a
          logical person to ask for help if, in fact, you are trying to help him?

          "[VO]: I told you I was intoxicated at the time. In my mind, I first
          thought to follow him to see if he was okay.

          "[PROSECUTOR]: But now you are not following him anymore.
          You are detained by the police officer. And at this point, wouldn't
          this be a good time to tell the officer, 'Hey, officer. Obviously, I
          can't follow him anymore. I'm being detained by you. We should
          look for this guy. You should look for him. There is someone hurt
          in this neighborhood'?

          "[VO]: I got scared and that moment and did not know how to
          handle that situation."

      Finally, the prosecutor asked why Vo did not say anything to Officer Ta when

Officer Ta returned to his patrol car where Vo was waiting:

          "[PROSECUTOR]: When Officer Ta comes back, after you had this
          opportunity to contemplate and think about what just happened, is it
          at this point that you tell Officer Ta, 'Hey, did you find the guy that
          was hurt in the robbery?' Did you tell Officer Ta that?

          "[VO]: I did not know how to approach him with that situation, sir.

          "[PROSECUTOR]: At this point, did you tell Officer Ta, 'Hey,
          Officer. The items that you found inside my pocket, those belong to
          [the victim]. He is hurt. He's in this neighborhood. You should find
          him'? Did you tell him that?

          "[VO]: No, sir.

          "[PROSECUTOR]: In fact, isn't it true when Officer Ta tried to
          speak to you to get your side of the story, you actually refused to talk
          to him?

          "[DEFENSE COUNSEL]: Objection.

          "THE COURT: Sustained. Next question.



                                             7
   "[PROSECUTOR]: Did you ever tell Officer Ta your side of the
   story?

   "[VO]: No, sir."

                                       C

                                    Redirect

On redirect, Vo clarified:

   "[DEFENSE COUNSEL]: After you were contacted by Officer Ta,
   did he immediately handcuff you?

   "[VO]: Yes, sir.

   "[DEFENSE COUNSEL]: Did he immediately place you in the back
   of a police car?

   "[VO]: Yes, sir. [¶] . . . [¶]

   "[DEFENSE COUNSEL]: Did he ever give you the opportunity to
   even discuss the matter?

   "[VO]: He asked me if I knew [the victim], and I said I did not know
   him.

   "[DEFENSE COUNSEL]: And that's when you were in the back of a
   police car?

   "[VO]: Yes. [¶] . . . [¶]

   "[DEFENSE COUNSEL]: What else happened?

   "[VO]: That's it. And then he asked if I would like to speak with
   him, and I said I would not.

   "[DEFENSE COUNSEL]: Exercising you right -- [¶] . . . [¶] -- that
   you don't have to talk to an officer -- [¶] . . . [¶] -- after you are
   handcuffed and arrested?

   "[Vo]: Yes."


                                       8
                                            D

                                    Recross-Examination

      The prosecutor further probed Vo about his silence during recross-examination:

          "[PROSECUTOR]: When they are taking you to jail … [¶] . . . [¶]
          … did you ever tell them, 'Hey, you've got to help a person I just
          met, and I've got some of his stuff'? Did you tell them that?
          [¶] . . . [¶]

          "[VO]: [Officer Ta] took the things out of my pocket, sir.

          "[PROSECUTOR]: I know, but you can still talk, right?

          "[VO]: I did not speak with Officer Ta, sir.

          "[PROSECUTOR]: Did you speak with the officer that was
          transporting you to jail?

          "[VO]: No, sir. [¶] . . . [¶]

          "[PROSECUTION]: And when they told you that … you were being
          arrested and being charged with a crime, did you ever tell them, 'No,
          I didn't. I was trying to help him out. I was trying to help him out'?

          "[DEFENSE COUNSEL]: Your honor, I think any questioning that
          the counsel is doing now is totally inappropriate."

      The court took up the matter in an unreported sidebar. The court then directed the

prosecutor to proceed to the next question without explicitly ruling on the objection. The

prosecutor continued:

          "[PROSECUTOR]: When Officer Ta searched through your pockets
          and found the items, the card, the cigarettes, and the money, did he
          show them to you?

          "[VO]: He took it out of my pockets and put them on the back trunk,
          and then he came to the car and showed me the card and the
          smoking pipe. [¶] . . . [¶]


                                            9
          "[PROSECUTOR]: At this point, when he showed you those items,
          did you tell Officer Ta that, 'Those belong to someone else. They
          don't belong to me'?

          "[VO]: I never spoke with him, sir.

          "[PROSECUTOR]: At that point, did you tell him that [the victim] is
          hurt and running around … ?

          "[VO]: I never spoke with him, sir.

          "[PROSECUTOR]: In fact, you never said anything to Officer Ta to
          help [the victim] at that point, correct?

          "[VO]: I was in handcuffs. I didn't know if he was going to help, sir.
          I did not say anything.

          "[PROSECUTOR]: You didn't know if he was going to help?

          "[VO]: I didn't know how to say it to him, sir, say, 'Oh, I just have
          his property in my pocket.'

          "[PROSECUTOR]: Could you have just said, 'Help. There is a
          person hurt'?

          "[VO]: I'm not sure, sir. I told you I was drunk at the time."

      The prosecutor did not ask Vo any further questions, and defense counsel

immediately rested his case.

                                             E

                                    Record of Sidebar

      The next day, prior to closing arguments, the court allowed the prosecutor to make

a record of the sidebar conversation with the court. According to the prosecutor, the

court found defense counsel's objection to the prosecutor's question about Vo's silence

was not an appropriate or legal objection. The court also found defense counsel had


                                            10
opened the door to the question by asking Vo on redirect about whether he was

exercising his right of silence. Defense counsel did not dispute the prosecutor's account

of the sidebar conversation, but pointed out it was the detective who investigated the

incident who first mentioned Vo had "invoked." The prosecutor in turn pointed out the

detective was responding to a question by defense counsel at the time.

                                       DISCUSSION

         Vo contends the trial court prejudicially violated the Doyle decision by allowing

the prosecutor to impeach him with questions about his failure to speak with police

officers after he had been waiting in the patrol car and while he was being transported to

jail. The People raise three points in response: (1) Vo forfeited this issue by failing to

object on this basis below; (2) Vo has not established the Doyle decision applies because

the record is silent on whether he received the advisements required by Miranda v.

Arizona (1966) 384 U.S. 436, 478-479 (Miranda); and (3) any error was harmless beyond

a reasonable doubt. We need not address the first or second point as we agree with the

third.

         "The Fifth Amendment's self-incrimination clause states that '[n]o person … shall

be compelled in any criminal case to be a witness against himself . . . .' (U.S. Const.,

5th Amend.)" (People v. Tom (2014) 59 Cal.4th 1210, 1222-1223 (Tom).) To effectuate

this clause, an individual in custody "must be warned prior to any 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



                                              11
attorney one will be appointed for him prior to any questioning if he so desires."

(Miranda, supra, 384 U.S. at p. 479.)

       As a corollary rule, where a defendant receives Miranda advisements and properly

invokes the right of silence, the prosecution may not use the defendant's silence to

impeach the defendant's testimony at trial. (Doyle, supra, 426 U.S. at pp. 618-619 &

fn. 10.) This is because the prophylactic Miranda advisements implicitly assure "silence

will carry no penalty," and "it would be fundamentally unfair and a deprivation of due

process to allow the arrested person's silence to be used to impeach an explanation

subsequently offered at trial." (Doyle, at pp. 617–618.)

       Conversely, the prosecution may impeach a defendant's testimony with silence

exercised in the absence of Miranda advisements. (Fletcher v. Weir (1982) 455 U.S.

603, 606 (Fletcher).) Such silence is not induced by implicit assurances it will not be

used against an individual at trial. (Id. at pp. 606–607.) Therefore, its use for

impeachment does not violate due process. (Ibid.)

       In this case, the record does not indicate whether or when Vo received Miranda

advisements. Nonetheless, he testified without contradiction he was exercising his right

of silence when he declined to speak with Officer Ta. Assuming, without deciding, the

Doyle decision applies in this circumstance, we conclude any violation of the decision

was harmless beyond a reasonable doubt. (Brecht v. Abrahamson (1993) 507 U.S. 619,

629-630 [noting the Chapman v. California (1967) 386 U.S. 18 (Chapman) harmless

beyond a reasonable doubt standard applies to Doyle error]; People v. Thomas (2012) 54

Cal.4th 908, 936-937.)

                                             12
       An error is harmless beyond a reasonable doubt if the People establish beyond a

reasonable doubt the error did not contribute to the verdict. (Chapman, supra, 386 U.S.

at p. 24.) The People have satisfied their burden here.

       First, Vo does not challenge the prosecutor's questions regarding his failure to call

out for help from the police when he first learned of their presence, his failure to

encourage the victim to seek help from the police, or his failure to seek help for the

victim when he first encountered Officer Ta. Vo's responses to these questions

impeached Vo's credibility to the same extent or more than his responses to the questions

about his silence after he waited in the patrol car or while he was transported to jail.

Indeed, the prosecutor emphasized the former silence and did not discuss the latter

silence in the prosecutor's closing arguments to the jury.

       Second, the questions about Vo's silence were not the only means of impeachment

the prosecutor used. He questioned Vo extensively about the internal inconsistencies in

Vo's version of events. He also solicited Vo's admission to having two prior felony theft

convictions.

       Third, there was substantial evidence of Vo's guilt. He matched the description of

the men Officer Ta saw fleeing the scene, he was sweating and his T-shirt was covered

with plant debris when he approached Officer Ta, he had some of the victim's property in

his front right pants pocket, and the victim identified him as one of the assailants shortly

after the incident.

       Finally, before reaching its verdict, the jury requested a reading of the victim's

testimony regarding the identity of the main aggressors. This shows the jury did not rush

                                             13
to judgment and cursorily dismiss Vo's exculpatory testimony because of the questions

about Vo's silence after waiting in the patrol car and while being transported to jail.

Accordingly, we conclude the record does not show any prejudice resulted from these

questions.

                                      DISPOSITION

       The judgment is affirmed.


                                                                        MCCONNELL, P. J.

WE CONCUR:


HUFFMAN, J.


O'ROURKE, J.




                                             14
