Filed 1/12/15 P. v. Patino CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT


THE PEOPLE,                                                                                F065528

         Plaintiff and Respondent,                                            (Super. Ct. No. BF137376)

                   v.
                                                                                         OPINION
SALVADOR JACOBO PATINO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
         Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael
Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Salvador Jacobo Patino was convicted of first degree murder, attempted murder,
participation in a criminal street gang, possessing methamphetamine, and two counts of
being a felon in possession of a firearm. In this appeal, he argues (1) the prosecutor
contravened Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) by questioning him about his
postarrest silence regarding his claim of self-defense; (2) the prosecutor contravened
Griffin v. California (1965) 380 U.S. 609 (Griffin) by questioning him about his failure to
testify at the preliminary hearing; and (3) the single fact that he killed a victim was used
to support both the conviction of murder and a sentence enhancement for causing death
by using a firearm, resulting in an improper conviction of both a greater and a lesser-
included offense and a violation of double-jeopardy principles.
       We conclude that no Doyle error has been shown. Any Griffin error was invited by
defense counsel’s own questioning of Patino, and the issue consequently is waived.
Patino concedes that the California Supreme Court has rejected the lesser-included-
offense/double-jeopardy argument he makes; he raises the issue only to preserve it for
subsequent review.
       The parties agree that the trial court made a mathematical error pertaining to
Patino’s custody credits. We will order the error corrected and affirm the judgment.
                        FACTS AND PROCEDURAL HISTORY
       The district attorney filed an information charging Patino with six counts:
(1) premeditated murder of Marcus Williams (Pen. Code, § 187, subd. (a));1 (2) attempted
murder of Willie Lawrence King (§§ 187, subd. (a), 664); (3) active participation in a
criminal street gang (§ 186.22, subd. (a)); (4) being a felon in possession of a firearm on
June 18, 2011 (former § 12021, subd. (a)(1)); (5) possessing methamphetamine (Health &
Saf. Code, § 11377, subd. (a)); and (6) being a felon in possession of a firearm on
June 25, 2011 (former § 12021, subd. (a)(1)). In count 1, the information alleged that
Patino committed the murder while he was an active member of a criminal street gang
and committed it to further the activities of the gang (§ 190.2, subd. (a)(22)). In counts 1
and 2, the information alleged that Patino committed the crimes to promote, further, or
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)) and that he

       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


                                              2.
discharged a firearm resulting in great bodily injury or death (§ 12022.53, subd. (d)). In
counts 1 through 3, the information alleged that Patino personally used a firearm
(§ 12022.5, subd. (a)). The information alleged in counts 2 and 3 that Patino inflicted
great bodily injury (§ 12022.7). In each count, the information alleged that Patino had
two prior convictions (§ 667.5, subd. (b)).
       Patino pleaded guilty to counts 5 and 6 and admitted the prior convictions. The
remaining charges were tried by jury.
       At trial, Caesar Vargas Diaz testified that he was living in the front house at 1011
Flower Street in Bakersfield on June 18, 2011. Patino lived in the back house. About
10:00 that night, Diaz was outside his house and saw Patino’s father run into the yard
from the alley and tell Patino that “two gang bangers” had beaten him up. Patino ran out
of the yard, through the alley, to the street. To see what would happen, Diaz followed at a
distance of 15 or 20 feet.
       In the street, Patino encountered two black men, one with a bicycle. Diaz
recognized one of the men as Marcus Williams. Diaz heard Patino ask them something
about his father. Patino argued with them for less than a minute. Then Patino drew a
black revolver from his waistband and fired six shots in rapid succession. Diaz saw the
two men run away in different directions. Diaz did not see them getting shot, but he did
go back outside a short time later and he saw Williams collapsed on the ground. A few
minutes after the shooting, Diaz saw Patino’s brother, Jesse, and heard him shout the
word “Florencia.” Florencia 13 is the name of a street gang in Los Angeles. In the days
following the shooting, Diaz received threatening voice mail messages from Patino.
Within days, the district attorney’s office relocated Diaz to another county.
       Williams was transported to a hospital. A doctor who treated him testified that he
arrived with three wounds on the front of his body and two on the back. He died the
morning after the shooting. A bullet found lodged in Williams’s leg was preserved as
evidence. The other victim, King, had been shot in the leg, but he did not cooperate with
police. He refused medical treatment and left the scene on his bicycle.

                                              3.
       A police officer testified that he arrested Patino on June 24, 2011. Patino had a
loaded handgun in his pants pocket. The gun was examined at a laboratory and found to
be the gun that fired the bullet taken from Williams’s leg.
       Evidence of Patino’s gang associations was presented. He bore tattoos reading
“Anybody Killer,” “F 13,” “13,” “85th Street,” “Fuck CDC,” “Florencia,” “F,” and
“southside,” among others. Patino admitted he was a member of Florencia 13 in Los
Angeles, but said he was no longer active. He was known by the monikers Raskal,
Chava, and Tiny. When in custody, Patino stated he was a Sureño gang member and
should be housed away from Norteños. Patino’s brother Jesse was known as Lil’ Raskal
and had said, when in custody, that he was a Sureño and should be housed away from
Norteños. A police expert opined that Patino and his brother were active Sureños on the
day of the shooting. The expert also opined that a hypothetical crime, based on the facts
of the case, would be committed for the benefit of a gang.
       Patino testified on his own behalf. He said that, on the day of the shooting, he was
in the yard with Diaz, who was trying to sell him some drugs and a gun. Patino’s father
came running into the yard and said he had been beaten and robbed. Patino ran to see the
people who had done this. He saw a man with a bicycle and asked why he had beaten
Patino’s father. The man “snapped” and “went crazy” and said he would kill Patino. He
appeared to be on drugs. The man pulled a gun from this waistband and advanced toward
Patino. Patino “panicked.” In his pocket, he had the gun Diaz had been trying to sell
him. Then Patino saw another man running toward him. Patino drew Diaz’s gun and
fired at the ground. The two men kept coming. Fearing for his life, Patino fired at them.
He was trying to protect himself and did not intend to kill.
       The jury found Patino guilty of all four remaining counts, found that the murder
and attempted murder were committed with premeditation and deliberation, and found all
the firearm and great-bodily-injury-enhancement allegations true. The jury found not true
the gang special-circumstance allegation on count 1 and the gang enhancement
allegations on counts 1 and 2.

                                             4.
        The court imposed sentence as follows: (1) 25 years to life for count 1, plus 25
years to life for the firearm enhancement on that count; (2) life with the possibility of
parole for count 2, plus 25 years to life for the firearm enhancement on that count;
(3) three years for count 5, plus two years for the prior-prison-term enhancements; and
(4) eight months for count 6. The sentences on counts 3 and 4 and on the remaining
enhancements were stayed pursuant to section 654.
                                       DISCUSSION
I.      Griffin and Doyle
        A.      Background
        Patino argues that, during the prosecutor’s cross- and recross-examinations of
Patino, the prosecutor violated the rules of Griffin and Doyle by asking Patino about his
prior silence. Patino further contends the prosecutor’s references to these matters in
closing arguments compounded the error.
        During cross-examination, the prosecutor asked a series of questions about when
Patino first told police or anyone else the alleged facts on which his claim of self-defense
was based, specifically the facts that Williams had a gun and that Patino got the gun he
used from Diaz. Patino testified that he did not tell the police, or anyone but his lawyer,
until he testified at trial.
        On redirect, defense counsel asked Patino whether the trial was his first
opportunity to tell his story under oath. Patino said yes.
        To rebut this, on recross-examination, the prosecutor asked Patino whether he was
present at and testified at his preliminary hearing. Patino answered that he was present
but did not testify.
        Defense counsel conducted further redirect and asked Patino whether he knew he
could testify at the preliminary hearing. Patino said, “Oh, naw, I didn’t want to testify.”
        Later in the day, after Patino had completed his testimony, defense counsel placed
on the record an objection based on Griffin: “During the course of cross-examination,
Counsel was continuing to ask my client with regards to issues of whether or not he

                                              5.
testified or told anyone his story. And, I believe, it was borderline Griffin [e]rror and
that’s the only concern I had, and I wanted to note that for the record.” The court stated
that the objection was noted.
       In closing argument, the prosecutor implied that Patino’s story was not credible
because (among other reasons) he did not tell it until after he heard other witnesses’
accounts: “He sat through the whole trial and listened to every bit of the testimony, had
about two days to get on it and think about it and then he testified.”
       After the verdict, Patino made a motion for a new trial, asserting Griffin error.
Patino’s brief in support of the motion did not mention Doyle by name, but it did refer to
improper questioning regarding Patino’s post-Miranda2 silence, which, as will be seen, is
the definition of Doyle error.
       In its oral ruling denying the motion, the trial court discussed both potential Griffin
error and potential Doyle error. The court never ruled on whether either type of error was
committed. It conceded that the jury was asked to consider, and could have been
influenced by, the facts that Patino did not tell his story to the police and did not testify
about it at the preliminary hearing. In connection with Doyle, the court said, “I don’t
know if he was ever Mirandized,” a question which, as we will explain, is pertinent to the
applicability of Doyle. Regarding Griffin, the court observed that the situation was
unusual in that there was comment on Patino’s failure to testify at the preliminary
hearing—not at trial, where he did testify. It pointed out that the prosecutor’s question
about testifying at the preliminary hearing was asked in response to defense counsel’s
prior question about whether Patino had any chance before trial to tell his story under
oath; it described this as “fair questioning.” Finally, the court concluded that any error
was harmless because the evidence of Patino’s guilt was “very strong.”




       2Miranda   v. Arizona (1966) 384 U.S. 436 (Miranda).


                                               6.
       B.     Doyle
       The defendants in Doyle were convicted of selling marijuana to a government
informant. Their defense was that they were really trying to buy the marijuana from the
informant and he framed them by throwing the money into their car and claiming the
marijuana in his possession came from them. (Doyle, supra, 426 U.S. at pp. 611-613.)
When cross-examining the defendants, the prosecutor impeached them, over defense
objections, by eliciting the fact that the defendants, who had been read their Miranda
rights, did not tell this story to the police. (Doyle, supra, at pp. 613-614.) The United
States Supreme Court held:

       “[Miranda requires] that a person taken into custody be advised
       immediately that he has the right to remain silent, that anything he says may
       be used against him, and that he has a right to retained or appointed counsel
       before submitting to interrogation. Silence in the wake of these warnings
       may be nothing more than the arrestee’s exercise of these Miranda rights.
       Thus, every post-arrest silence is insolubly ambiguous because of what the
       State is required to advise the person arrested.… Moreover, while it is true
       that the Miranda warnings contain no express assurance that silence will
       carry no penalty, such assurance is implicit to any person who receives the
       warnings. In such circumstances, 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. [¶] … [¶] We hold
       that the use for impeachment purposes of petitioners’ silence, at the time of
       arrest and after receiving Miranda warnings, violated the Due Process
       Clause of the Fourteenth Amendment.” (Doyle, supra, 426 U.S. at pp. 617-
       619, fn. omitted.)
       The People argue that Patino forfeited this issue because neither his objection
during the trial nor his new trial motion mentioned Doyle. We do not agree. The new
trial motion did mention the substance of Doyle, although it did not cite the case. The
trial court’s discussion of Doyle in its oral ruling on the motion makes it clear that the
court understood Patino to be raising the Doyle issue. Further, in the objection counsel
made during trial, he referred to “issues of whether or not he testified or told anyone his
story.” Again, counsel cited only Griffin, but the substance of his objection—that it was
improper to question Patino about whether he testified or told anyone, also raised the


                                              7.
Doyle issue. The People also argue that defense counsel’s objection during the trial came
too late because Patino had already finished testifying; but there is no merit in this
contention, since the court could still at that stage have admonished the jury not to
consider Patino’s prior silence.
       No Doyle error has been shown, however. The holding of Doyle is that it is unfair
to advise a defendant of his right under Miranda to remain silent, and then turn around
and use his silence as evidence against him. The question of whether postarrest silence
can be used to impeach a defendant who was not Mirandized was addressed in Fletcher v.
Weir (1982) 455 U.S. 603 (Fletcher). Weir was convicted of murder; his defense, which
he revealed for the first time at trial, was self-defense. The prosecutor questioned him
about why he had not claimed self-defense when arrested. After the state supreme court
affirmed his conviction, a federal district court issued a writ of habeas corpus, holding
that Doyle applied even though the record did not show that the police read Weir his
Miranda rights. (Fletcher, supra, at pp. 603-604.) The United States Supreme Court
reversed:

               “The significant difference between the present case and Doyle is
       that the record does not indicate that respondent Weir received any Miranda
       warnings during the period in which he remained silent immediately after
       his arrest.… [¶] … [¶] In the absence of the sort of affirmative assurances
       embodied in the Miranda warnings, we do not believe that it violates due
       process of law for a State to permit cross-examination as to postarrest
       silence when a defendant chooses to take the stand. A State is entitled, in
       such situations, to leave to the judge and jury under its own rules of
       evidence the resolution of the extent to which postarrest silence may be
       deemed to impeach a criminal defendant’s own testimony.” (Fletcher,
       supra, 455 U.S. at pp. 605-607.)
       The California Supreme Court cited Fletcher in People v. Medina (1990) 51
Cal.3d 870, 890 (Medina). Medina was convicted of three murders. (Id. at p. 878.) His
sister visited him in jail before trial and asked him why he did it. He was silent initially,
then made remarks that did not deny his guilt. The trial court admitted evidence of this
conversation as an adoptive admission. On appeal, Medina argued that this application of


                                              8.
the adoptive-admissions rule contravened Doyle as it allowed the prosecution to use his
postarrest silence against him. The California Supreme Court stated that the record did
not show that Medina was Mirandized and that, even if he had been, the record did not
support an inference that his silence in response to his sister’s question was intended as an
invocation of his right to remain silent. (Medina, supra, at pp. 889-891.)
       In this case, the record does not show whether Patino was Mirandized at the time
when he maintained his silence to the police or at any other time. Fletcher is directly on
point and means that no constitutional violation has been established.
       Patino cites People v. Galloway (1979) 100 Cal.App.3d 551, a case from this court
predating both Fletcher and Medina. Galloway is not controlling. The defendant in that
case, who was convicted of robbery, claimed Doyle error because the prosecutor
questioned him about why he never mentioned his alibi to anyone before he gave
testimony at trial. (Galloway, supra, at pp. 554, 556.) The issue this court resolved was
whether Doyle was limited to silence during police questioning; we held that it was not.
The opinion did not discuss whether Galloway was Mirandized or not. (Galloway, supra,
at pp. 557-558.) The case therefore does not stand for the proposition that Doyle applies
to cases in which the record fails to show that the defendant was read his rights. If it did,
it would have been superseded by Fletcher.
       C.     Griffin
       In Griffin, a California case, the defendant was convicted of murder and sentenced
to death. (Griffin, supra, 380 U.S. at pp. 609, 611.) In the guilt phase of trial, he did not
testify. (Id. at p. 609.) In closing arguments, the prosecutor emphasized the defendant’s
failure to testify, asserting that only he could explain the incriminating circumstances, yet
he withheld his knowledge from the jury. (Id. at pp. 610-611.) The trial court gave the
jury an instruction, consistent with the law of California at the time, that unfavorable
inferences could properly be drawn from the defendant’s failure to testify and explain or
deny evidence against him concerning matters within his knowledge. (Id. at p. 610.)



                                              9.
       The United States Supreme Court held that allowing a prosecutor to comment on,
and a jury to consider, a defendant’s failure to testify violates the Fifth Amendment’s self-
incrimination clause. (Griffin, supra, 380 U.S. at pp. 611-613.) “[C]omment on the
refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ [citation],
which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a
constitutional privilege. It cuts down on the privilege by making its assertion costly.”
(Id. at p. 614, fn. omitted.)
       In this case, the only references made at trial to a failure to testify were the
questions and Patino’s answers about whether he testified at the preliminary hearing. The
potential Griffin error is confined to these references. The other references to Patino’s
silence fall under the rubric of potential Doyle error, as discussed above.
       The People contend that Patino has forfeited the Griffin issue because he did not
make a Griffin objection during his testimony. We disagree. Patino did make a Griffin
objection shortly after he finished testifying, when it was not too late to admonish the jury
not to use against him his failure to testify at the preliminary hearing. Patino also based
his new trial motion on Griffin.
       There is another reason, however, why we will not address the merits of the Griffin
issue. As the People point out in their brief—and as the trial court also pointed out when
it denied the new trial motion—it was defense counsel who first raised the question of
whether the trial was Patino’s first opportunity to tell his story under oath. Patino’s
affirmative answer was not correct: He could have made his claim of self-defense under
oath at the preliminary hearing. The question of whether Patino testified at the
preliminary hearing “became pertinent,” as the People contend, when defense counsel
raised the issue of a prior chance to claim self-defense under oath. The error, if any, of
allowing the prosecutor to question Patino about whether he testified at the preliminary
hearing was, therefore, an invited error.
       A party is estopped from asserting as a ground for reversal any error induced or
invited by his or her own conduct. (Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31

                                              10.
Cal.App.4th 1746, 1750; Abbott v. Cavalli (1931) 114 Cal.App. 379, 383.) In criminal
cases, this doctrine applies where “[d]efense counsel [is] deemed to have intentionally
caused the claimed ‘error.’” (People v. Marshall (1990) 50 Cal.3d 907, 931.)
       Here, the prosecutor on cross-examination asked Patino whether he had told his
story to police or anyone else before trial. This has not been shown to be Doyle error for
the reasons we have discussed. Defense counsel sought to blunt the effect of Patino’s
negative answer by asking whether there had been any pretrial opportunity to tell the story
under oath. Since Patino answered this question—and answered it incorrectly—we can
only conclude that the prosecutor’s follow-up question about the preliminary hearing was
invited by the defense tactic. It follows that Patino is estopped from asserting as a ground
for reversal any Griffin error that might have been involved in the prosecutor’s question
or the prosecutor’s reference, in closing argument, to Patino’s answer.
II.    Lesser-included offense/double jeopardy
       The death of the victim was an element of murder. It also was an element of the
enhancement under section 12022.53, subdivision (d), which requires a finding of use of
a firearm resulting in great bodily injury or death. Patino argues that the use of the same
fact to support conviction and punishment under these two provisions amounted to
conviction and punishment for both a greater and a lesser-included offense and violated
double-jeopardy principles.
       Patino’s argument is inconsistent with the California Supreme Court’s decisions in
People v. Izaguirre (2007) 42 Cal.4th 126, 130-134 and People v. Sloan (2007) 42
Cal.4th 110, 115-125. We are, of course, not free to reach conclusions contrary to
holdings of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) Patino acknowledges this, stating that he raises the issue only to
preserve it for review in subsequent proceedings.
III.   Mathematical error in custody credits
       At sentencing, the trial court granted Patino 410 days of custody credit, consisting
of 410 days actually served. The parties agree that the correct count, which includes both

                                            11.
the day of arrest and the day of sentencing, as well as February 29, 2012, is 411 days.
Patino’s appellate counsel wrote a letter to the trial court asking that the error be
corrected; the trial court, apparently miscalculating, replied by letter, stating that no
correction was necessary. Our own calculation confirms that 411 days is the correct
figure. We will order a correction.
                                       DISPOSITION
       The trial court is directed to correct the abstract of judgment to show that Patino is
entitled to 411 days of presentence custody credit, not 410, and to forward the corrected
abstract to the appropriate correctional authorities. The judgment is otherwise affirmed.


                                                                   _____________________
                                                                                Oliver, J.*

WE CONCUR:


 _____________________
 Poochigian, Acting P.J.


 _____________________
 Peña, J.




       *Judge  of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


                                              12.
