Filed 2/25/13 P. v. Sepulveda 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F063559
    Plaintiff and Respondent,
                                                                             (Super. Ct. No. MCR038366)
    v.

RAYMOND TORRES SEPULVEDA,                                                                OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
         Aaron Williams for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Caely E.
Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Raymond Torres Sepulveda was convicted in Count 1 of possession of
methamphetamine while armed with a loaded operable firearm (Health & Saf. Code,
§ 11370.1, subd. (a)) and in Count 2 of possession of ammunition (Pen. Code, § 12316,
subd. (b)(1)).1 It was further found true as to Count 2 that Sepulveda was prohibited
from owning or possessing a firearm because of previous felony convictions (§§ 12021,
12021.1; Welf. & Inst. Code, §§ 8100, 8103). The trial court sentenced Sepulveda to a
total term of two years in state prison.
       On appeal, Sepulveda alleges numerous instances of ineffective assistance of
counsel; that the prosecutor impermissibly commented on his postarrest silence; and that
there was insufficient evidence of a “usable amount” to support the possession of
methamphetamine conviction in Count 1. We disagree and affirm.
                             STATEMENT OF THE FACTS
       At about midnight on June 13, 2010, police officers Jason Gutknecht and Michael
Kutz were in an unmarked police vehicle when they observed a truck with the bed filled
with televisions and furniture, parked in a high crime area. The officers approached the
truck and observed Martin Rodriguez (Martin) sitting in the driver‟s seat of the truck.
Gutknecht knew from information given him by confidential informants that Martin sold
methamphetamine and at all times carried a loaded firearm.
       Within seconds of when he first saw the truck, Officer Gutknecht exited his
vehicle, as did Martin, and they contacted each other in the parking lot. Gutknecht
searched Martin‟s person, but did not find any contraband. There were two other
passengers in the truck: Martin‟s wife Lisa Rodriguez (Lisa) in the front seat and
Sepulveda in the back behind the driver‟s seat.
       Sepulveda exited the truck at Officer Gutknecht‟s request, consented to a search of
his person, and spontaneously admitted he had a gun in his pocket. Gutknecht then
removed a loaded .22-caliber gun, wrapped in a white bandana, as well as a small baggie
of methamphetamine from Sepulveda‟s right shirt pocket. The officer also recovered 31


1      All further statutory references are to the Penal Code unless otherwise stated.



                                             2.
live .22-caliber bullets from the left shirt pocket. Gutknecht opined that the
methamphetamine was a “usable amount,” later determined to be .08 grams.
       After Sepulveda was arrested, he spontaneously told Officer Gutknecht he had the
gun for protection from his cousin and had bought it off “some wet back for $95.”
Gutknecht never advised Sepulveda of his Miranda2 rights, and Sepulveda made no
further statements regarding the incident during his transport to jail or while being
booked into jail. Gutknecht was present with Sepulveda during this entire process.
       Sepulveda testified in his own defense that, when Martin saw the unmarked police
vehicle and determined it was law enforcement, Sepulveda, Martin, and Lisa were all
outside the truck and all quickly got back into the truck. Martin then handed the gun,
bullets, and bandana to Sepulveda and told him to take responsibility for them or Martin
would have Sepulveda‟s daughter and sisters shot. Sepulveda estimated that this
occurred within one or two minutes after they got into the truck. Sepulveda maintained
that he was unaware that Martin had handed him methamphetamine as well.
       Sepulveda testified that Martin told him he was a “three striker” with “nothing to
lose,” and if Martin went to jail, he would have someone “deal with” Sepulveda‟s sisters.
Although Sepulveda acknowledged that he told the officer he bought the gun in the
alleyway by the Johnny Quik for protection from his cousin, he claimed at trial that he
took the gun because he was scared for his family. Sepulveda testified that Martin had
previously told him about a lot of “pretty scary” things he had done. Sepulveda had also
seen Martin previously threaten a child with a gun.
       Sepulveda admitted that he had a prior conviction for possession of
methamphetamine 10 years earlier, and that he pled guilty in the prior case because he
was guilty. But Sepulveda insisted that he was innocent in the instant case.


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



                                             3.
       Lisa, Martin‟s wife, was called by the defense and testified that she was with
Martin the entire night in question and never heard him threaten Sepulveda, nor did she
see Martin with a gun or drugs. According to Lisa, the windows on the truck were not
tinted; the truck was backing up when the officers approached; Sepulveda claimed
responsibility for the gun “like four times” to the officers; and she saw the
methamphetamine and gun retrieved from different pockets on Sepulveda‟s person.
       The defense recalled Officer Gutknecht, who testified that Martin‟s truck did have
tinted windows, the truck was parked and not backing up when the officers approached,
Sepulveda claimed responsibility for the gun only once, and the methamphetamine and
gun were retrieved from the same pocket on Sepulveda‟s shirt.
                                      DISCUSSION
   I. INEFFECTIVE ASSISTANCE OF COUNSEL
       Sepulveda asserts numerous instances of ineffective assistance of counsel in
association with the preparation and presentation of his case. He claims his trial counsel
was ineffective for (1) insisting the jury be informed Sepulveda had previously been
convicted of possession of methamphetamine; (2) for telling the jury during opening
statement that Martin would be testifying for the defense; (3) for calling Lisa as a witness
to impeach Sepulveda; (4) for failing to corroborate Sepulveda‟s testimony; (5) for failing
to call law enforcement officers who would provide circumstantial evidence that Martin
owned a gun; (6) for failing to seek the identity of the confidential informants who had
exculpatory information and for failing to have them testify; (7) for failing to move to
have the possession of methamphetamine while armed charge dismissed; and (8)
cumulative error. We will address each of these issues in turn.
       To prevail on such claims, Sepulveda must establish not only deficient
performance, i.e., representation below an objective standard of reasonableness, but also
resultant prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 333; People v. Ledesma
(1987) 43 Cal.3d 171, 216.) Tactical errors are generally not deemed reversible, and

                                             4.
counsel‟s decisionmaking must be evaluated in the context of the available facts.
(Strickland v. Washington (1984) 466 U.S. 668, 690 (Strickland).) To the extent the
record on appeal fails to disclose why counsel acted or failed to act in the manner
challenged, we will affirm the judgment “unless counsel was asked for an explanation
and failed to provide one, or unless there simply could be no satisfactory explanation .…”
(People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds in People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v.
Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Finally, prejudice must be affirmatively proved;
the record must demonstrate “a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, supra, at p. 694; People v. Ledesma, supra, at pp. 217-218.)
Using these standards, we conclude Sepulveda‟s ineffectiveness claims fail.
       A. Stipulating to a Past Methamphetamine Possession Conviction
       Sepulveda asserts first that counsel was ineffective for stipulating to the fact that
he had a prior conviction for possession of methamphetamine.
       Sepulveda was charged in Count 2 with possession of ammunition by a person
prohibited from possessing a firearm due to a prior conviction, pursuant to then section
12316, subdivision (b)(1). In order to prove that count, the People were required to
establish that Sepulveda had a prior felony conviction. (CALCRIM No. 2591.) The
parties and trial court had numerous conversations on the issue of a stipulation as to the
prior conviction allegation. The trial court suggested that the stipulation state only that
Sepulveda had a prior felony conviction without stating what the nature of the conviction
was. However, concerned that the jury would negatively speculate on an unspecified
prior felony, defense counsel insisted that the stipulation specify that Sepulveda had a
prior felony conviction for possession of methamphetamine (Health & Saf. Code,
§ 11377, subd. (a)). The trial court then read the stipulation, which stated that Sepulveda

                                              5.
had “suffered a felony conviction for possession of methamphetamine on December
22nd, 2000,” to the jury during the People‟s case-in-chief.
       As is evident from defense counsel‟s opening statement, Sepulveda‟s defense at
trial was that he was forced to take the gun and drugs from Martin, who threatened him.
To this end, defense counsel told the jury that Sepulveda was familiar with “the system”
since he had a prior methamphetamine related felony conviction and that, if he was trying
to hide the drugs, he knew better than to put them in his front pocket. According to
defense counsel, “[Sepulveda] knows that if you want to hide your drugs, you put it in
your underwear, you put it somewhere that the cops will not find it.” Sepulveda himself
testified that he had a prior conviction for possessing methamphetamine and that he was
guilty in the prior case, but that he was innocent in the instant case and wanted “everyone
to know it.”
       In addition, because defense counsel was aware that Sepulveda‟s prior conviction
for possession of methamphetamine would be admissible under Evidence Code section
1101, subdivision (b) as to Count 1, possession of methamphetamine while armed with a
firearm, she knew the jury would hear about the conviction regardless. But by stipulating
to this same conviction as Sepulveda‟s qualifying felony conviction for Count 2, the jury
would be unaware Sepulveda had two additional qualifying convictions. In addition, the
jury had no reason to speculate that the felony conviction was for something arguably
more serious.
       Here, defense counsel had several tactical reasons for stipulating that Sepulveda‟s
prior felony was related to methamphetamine, and we afford it great deference. (People
v. Jones (2003) 29 Cal.4th 1229, 1254.) “[C]ourts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott (1997) 15
Cal.4th 1188, 1212.) We will reverse a conviction on the ground of inadequate counsel
“only if the record on appeal affirmatively discloses that counsel had no rational tactical



                                              6.
purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
Thus, this was a tactical decision requiring no reversal.
       B. Informing the Jury Martin would Testify
       Sepulveda next contends that counsel was ineffective because she made the
promise in opening statement that Martin would testify and she should have known that,
if he was called, he would invoke his right not to incriminate himself.
       During her opening statement, defense counsel informed the jury that she
subpoenaed Martin to testify at trial so the jury “can hear his testimony … and determine
for [themselves] whether he is credible or not.” Martin later testified in an evidentiary
hearing outside the presence of the jury, in which he invoked his Fifth Amendment right
and refused to answer any questions regarding his personal possession of drugs or guns,
anything related to Sepulveda, or the incident in which Sepulveda was arrested. The trial
court then ruled that the limited information Martin was willing to testify to was
irrelevant and/or precluded under Evidence Code section 352. Martin did not testify
before the jury.
       “Whether the failure to produce a promised witness amounts to ineffective
assistance of counsel is a fact-based determination that must be assessed on a case-by-
case basis.” (People v. Stanley (2006) 39 Cal.4th 913, 955.) In addition, counsel‟s
decisionmaking must be evaluated in the context of the available facts. (People v. Bolin,
supra, 18 Cal.4th at p. 333.)
       Sepulveda‟s defense was that the methamphetamine, firearm, and bullets found on
him were handed to him by Martin as the police approached, and that Martin threatened
him if he did not cooperate. It is not entirely unreasonably for defense counsel to have
believed that Martin could testify about relevant information that would not necessarily
implicate Sepulveda but would, perhaps, corroborate details he would be testifying to.
       We apply a “strong presumption” that counsel‟s representation was within the
“wide range” of reasonable professional assistance. (Strickland, supra, 466 U.S. at p.

                                             7.
689.) Under this standard, Sepulveda fails to establish that counsel‟s performance fell
below an objective standard of reasonableness by suggesting during opening statement
that Martin would testify during trial. (Id. at p. 688.)
       Even were we to conclude defense counsel‟s failure to present the witness and
testimony described in her opening statement fell below an objective standard, it is not
reasonably probable that “but for” counsel‟s error, the result of the proceeding would
have been different. (Strickland, supra, 466 U.S. at p. 694.) Sepulveda‟s defense at trial
was not predicated on Martin assuming responsibility for the contraband, but rather the
jury finding Sepulveda to be credible and believing his testimony, which it did not do.
       Further, any error was cured by the special instruction given by the trial court
which directed the jury as follows:

       “The fact that Martin … did not testify during this trial is not evidence. Do
       not speculate about the reason. You must completely disregard the
       circumstance in deciding the issues in this case. Do not consider it for any
       purpose or discuss it during your deliberations.”
Jurors are presumed to follow the court‟s admonitions and instructions. (Romano v.
Oklahoma (1994) 512 U.S. 1, 13; People v. Harris (1994) 9 Cal.4th 407, 426.)
       C. Calling Lisa as a Witness
       Sepulveda next contends defense counsel was ineffective when it called Lisa as a
witness because her testimony, in essence, “destroy[ed]” Sepulveda‟s defense.
       Lisa testified that, on the night of the incident, she and her husband Martin were in
the process of moving and were parked in a parking lot in the truck with Sepulveda. Lisa
testified that the windows of the truck were not tinted and that the truck was backing up
when they saw the officers. Lisa claimed Martin did not have a gun or drugs that night,
and he never threatened Sepulveda. She also testified that she did not know Sepulveda
had any drugs on him and that she had not seen Sepulveda with a gun prior to him being
searched. Lisa testified that she heard Sepulveda say “like four times,” when he was
searched, that it was his gun. According to Lisa, the drugs, gun and bullets were all

                                              8.
found in different pockets: the drugs in Sepulveda‟s shirt pocket, and the gun and bullets
from his two pant pockets.
        “[T]he choice of which, and how many, of potential witnesses [to call] is precisely
the type of choice which should not be subject to review by an appellate court.” (People
v. Floyd (1970) 1 Cal.3d 694, 709, overruled on other grounds by People v. Wheeler
(1978) 22 Cal.3d 258, 287, fn. 36, overruled on other grounds in Johnson v. California
(2005) 545 U.S. 162, 165.) If the record on appeal sheds no light on why counsel acted
or failed to act in the manner challenged, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation, the
claim on appeal must be rejected. (People v. Wilson (1992) 3 Cal.4th 926, 936.) Such
claims are more appropriately addressed in a habeas corpus proceeding. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
        Here, defense counsel announced her intention to have Lisa testify after Martin
asserted his right not to implicate himself. Sepulveda had asserted, from the very
beginning, that he was determined to testify. Defense counsel may have believed that it
was in Sepulveda‟s best interest to call Lisa to corroborate details that Sepulveda would
testify to.
        But even if we determine that defense counsel erred by calling Lisa, the error did
not prejudicially damage Sepulveda. An abundance of evidence, apart from Lisa‟s
testimony, confirmed Sepulveda‟s convictions. He was found with a loaded gun,
ammunition, and a usable amount of methamphetamine on his person, he had a prior
felony conviction, and he had no credible explanation for why he possessed these items.
        In addition, any damage caused by Lisa was mitigated by recalling Officer
Gutknecht, who impeached Lisa‟s testimony on the condition of the truck windows, the
number of times Sepulveda claimed responsibility of the gun, and the location of the
contraband. According to Gutknecht, the truck was stationary when officers approached;



                                             9.
the drugs and gun were pulled out of the same pocket; and Sepulveda claimed ownership
of the gun only once.
        We cannot say that, but for defense counsel‟s error in calling Lisa as a witness, the
result of the proceedings would have been different. (Strickland, supra, 466 U.S. at p.
694.)
        D. Declining to Corroborate Martin‟s Three Striker Status
        Sepulveda also contends that defense counsel was ineffective for failing to
corroborate his testimony that Martin was a third striker facing life in prison if he were
caught with the gun and drugs. Sepulveda had testified that when the officers arrived,
Martin handed him the gun, ammunition, and drugs and told him he was to take
responsibility for them because Martin was a “three striker” and, if he went to jail,
Sepulveda‟s daughter and sisters would be shot. Sepulveda contends that defense
counsel could have corroborated Martin‟s status as a third striker “through easily
obtained paperwork.”
        The record on appeal contains no information on what, if any, criminal convictions
Martin had or whether defense counsel made any efforts to procure such information.
From this record, we cannot determine whether defense counsel‟s performance was
incompetent based on these omissions. (People v. Wilson, supra, 3 Cal.4th at p. 936.)
        Even if we are to assume error, we cannot say that Sepulveda was prejudiced by
the omission. The evidence against Sepulveda was strong. And while documentary
evidence that Martin was a “three striker” may have corroborated one matter Sepulveda
testified to, we cannot say that, but for this error, the result of the proceeding would have
been different. (Strickland, supra, 466 U.S. at p. 694.)
        E. Failure to Introduce Evidence of Gun Box at Martin‟s Apartment
        Sepulveda next contends that defense counsel was ineffective for failing to
introduce evidence that officers found an empty gun box in Martin‟s apartment one
month before the current incidence.

                                             10.
       During the preliminary hearing, Officer Gutknecht testified that, a month prior to
Sepulveda‟s arrest, there had been a shooting at an apartment complex just south of
where Martin lived. After a witness described Martin as being involved, officers
searched Martin‟s apartment and located an empty, nondescript gun box, but no gun.
       There is no evidence in the record why defense counsel did not introduce evidence
of the empty gun box at trial. Neither is there any evidence of whether the gun box was
of any relevance to the instant case. As such, we cannot determine that defense counsel‟s
representation concerning this omission was below an objective standard of
reasonableness. (Strickland, supra, 466 U.S. at p. 688.)
       Even if we are to assume error, we cannot say such error prejudiced Sepulveda.
The jury heard testimony that Martin carried a gun, had been involved in a shooting, and
had been seen threatening a child with his gun. As such, it is not reasonably probable
that, but for the additional fact that Martin had an empty gun box at his apartment one
month earlier, the result of the proceeding would have been different. (Strickland, supra,
466 U.S. at p. 688.)
       F. Failure to Seek the Identity of Informants and Have Them Testify
       Sepulveda next contends that defense counsel was ineffective for failing to seek
the identity of the confidential informants and for failing to have those informants testify
about the fact that they knew Martin at all times to carry a gun and methamphetamine.
       Prior to trial, the District Attorney informed defense counsel that there was more
than one confidential informant who had information that Martin carried a gun at all
times and was selling methamphetamine. Sepulveda argues that counsel should have
pursued the identity of the confidential informants to bolster his theory of the case at trial,
namely that the gun and drugs belonged to Martin. According to Sepulveda, although
counsel requested that she be allowed to present hearsay evidence through the officer
who was aware of the informant‟s information, she did not properly bring a motion to
discover the identity of the confidential informants.

                                             11.
              “„“The common-law privilege of nondisclosure [of the identity of an
       informer] is based on public policy. „The purpose of the privilege is the
       furtherance and protection of the public interest in effective law
       enforcement. The privilege recognizes the obligation of citizens to
       communicate their knowledge of the commission of crimes to law-
       enforcement officials and, by preserving their anonymity, encourages them
       to perform that obligation.‟ [Citation.] The informer is thus assured of
       some protection against reprisals. The use of informers is particularly
       effective in the enforcement of sumptuary laws such as those directed
       against gambling, prostitution, or the sale and use of liquor and
       narcotics….” [Citation.]‟ [Citation.]” (People v. Otte (1989) 214
       Cal.App.3d 1522, 1529.)
       Nonetheless, “the prosecution must disclose the name of an informant who is a
material witness in a criminal case or suffer dismissal of the charges against the
defendant. [Citation.] An informant is a material witness if there appears, from the
evidence presented, a reasonable possibility that he or she could give evidence on the
issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the
burden of adducing „“„some evidence‟”‟ on this score.” (People v. Lawley (2002) 27
Cal.4th 102, 159.)
       “[T]hird party culpability evidence is admissible if it is „capable of raising a
reasonable doubt of [the] defendant‟s guilt,‟ .…” (People v. Robinson (2005) 37 Cal.4th
592, 625.) “[W]e do not require that any evidence, however remote, must be admitted to
show a third party‟s possible culpability.” (People v. Hall (1986) 41 Cal.3d 826, 833,
italics added.) “[E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant‟s
guilt .…” (Ibid.) “[T]o be admissible, evidence of the culpability of a third party offered
by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt,
must link the third person either directly or circumstantially to the actual perpetration of
the crime. In assessing an offer of proof relating to such evidence, the court must decide
whether the evidence could raise a reasonable doubt as to defendant‟s guilt and whether it
is substantially more prejudicial than probative under Evidence Code section 352.”


                                             12.
(People v. Bradford (1997) 15 Cal.4th 1229, 1325; see also Hall, supra, 41 Cal.3d at p.
834 [courts should simply treat third-party culpability evidence like any other evidence; if
relevant it is admissible unless its probative value is substantially outweighed by the risk
of undue delay, prejudice, or confusion].)
       Sepulveda argues that the informants would have testified that Martin carried a
gun on his person at all times and that he was selling methamphetamine. But even if that
was the case, it cannot be said that, but for counsel‟s failure to request such a motion, the
result of the proceeding would have been different. (Strickland, supra, 466 U.S. at p.
694.) The evidence strongly confirmed Sepulveda‟s guilt. Sepulveda was not prevented
from presenting his defense-- that the gun and drugs were forced on him by Martin. The
jury heard, through Officer Gutknecht‟s testimony, that Martin sold methamphetamine
and that he always carried a gun, the very same evidence that Sepulveda claims the
informants would have testified to.
       G. Failure to Make a Section 1118.1 Motion on Count 1
       Sepulveda next contends that counsel was ineffective for failing to make a section
1118.1 motion for acquittal on Count 1. Count 1 charged Sepulveda with possession of
methamphetamine while armed with a firearm in violation of Health and Safety Code,
section 11370.1, subdivision (a). Among other elements, the prosecution was required to
prove that there was a usable amount of methamphetamine. (People v. Rubacalba (1993)
6 Cal.4th 62, 65-67; CALCRIM No. 2303.)
       As argued by Sepulveda, the evidence of a usable amount was provided by Officer
Gutknecht, who testified that the methamphetamine and its packaging together totaled
three-tenths of a gram and that anything over one-tenth of a gram is a usable amount, but
that Gutknecht never testified to and was never asked how much methamphetamine was
possessed absent the packaging. A criminalist testified that the methamphetamine alone
weighed eight one-hundredth of a gram, an amount Sepulveda argues is below a usable
amount.

                                             13.
        But as noted by respondent, Officer Gutknecht did not testify that anything over
one-tenth of a gram was a usable amount, but rather “anything less than one tenth of a
gram would be a usable amount,” (italics added) because that amount can be used in a
glass smoking device, snorted, or injected. In this case, the net weight of the
methamphetamine was .08 grams, and was therefore a usable amount. There was
therefore sufficient evidence of a usable amount of methamphetamine to support a
conviction in Count 1 and any motion by counsel for acquittal would have been denied.3
“Counsel is not ineffective for failing to make a frivolous motion.” (People v. Weaver
(2001) 26 Cal.4th 876, 931.)
        H. Cumulative Ineffective Assistance of Counsel
        Finally, Sepulveda contends that he was deprived of his right to effective
assistance of counsel through counsel‟s errors, both individual and cumulative. However,
having found no ineffective assistance in any of the individual claims of error, we
necessarily reject his claim of cumulative error. (People v. Gurule (2002) 28 Cal.4th 557,
662.)
    II. PROSECUTORIAL MISCONDUCT
        Sepulveda contends that the prosecutor‟s comments on his postarrest silence
infringed his right to silence in violation of Doyle v. Ohio (1976) 426 U.S. 610 (Doyle)
and People v. Coffman and Marlow (2004) 34 Cal.4th 1 (Coffman). Specifically,
Sepulveda contends that the prosecutor‟s argument to the jury constituted error because it
implied that, if his defense was true, he would have come forward with that information
when he was arrested. We disagree. Because we dispose of this argument on the merits,



3     Sepulveda makes a separate argument that there was insufficient evidence he
possessed a usable amount of methamphetamine to support his conviction in Count 1.
Because we have addressed the issue in context of his argument here, we need not
address it again.



                                             14.
we need not address the People‟s assertion that the failure of defense counsel below to
object to the questions and commentary waived the issue for appeal.
       A. Procedural Background
       When Sepulveda exited the truck at Officer Gutknecht‟s request, he consented to a
search of his person and spontaneously admitted he had a gun in his pocket. After
Sepulveda was arrested, he spontaneously told Officer Gutknecht he had the gun for
protection from his cousin and had bought it “off some wet back for $95.” Gutknecht
never advised Sepulveda of his Miranda rights, and Sepulveda made no further
statements regarding the incident during his transport to jail or while being booked into
jail. Gutknecht was present with Sepulveda during this entire process.
       In defense counsel‟s opening statement, Sepulveda‟s defense was that he was in
possession of the firearm, ammunition and methamphetamine because Martin threatened
him if he did not take the items and claim them as his own when officers approached.
       The testimony of Officers Gutknecht and Kutz during the people‟s case-in-chief
established that Sepulveda spontaneously claimed ownership of the gun, but that he made
no other statements. Defense counsel initially objected during Gutknecht‟s testimony for
“[l]ack of personal knowledge,” which was overcome once the People established that
Gutknecht was with Sepulveda after he was arrested. Defense counsel made no further
objections.
       During her cross-examination of Officers Gutknecht and Kutz, defense counsel
asked whether Sepulveda had said, at the time of booking that “he need[ed] to talk to
someone about the incident.” Both replied in the negative. On direct examination,
defense counsel asked Sepulveda to explain his postarrest silence, and he explained that
he still felt threatened by Martin, but that he eventually told a booking officer
“everything.” The prosecutor cross-examined him regarding his silence as well as his
claim that he had spoken to a booking officer, whose name Sepulveda could not
remember. Both the prosecutor and defense counsel addressed Sepulveda‟s postarrest,

                                             15.
pre-Mirandized silence during closing arguments: the prosecutor questioning why
Sepulveda did not say anything about the gun belonging to Martin, and defense counsel
explaining that Sepulveda felt threatened.
       B. Applicable Law and Analysis
       In Doyle, the United States Supreme Court held 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 p. 619.) “Doyle holds that the prosecution may not, consistent with
due process and fundamental fairness, use postarrest silence following Miranda warnings
to impeach a defendant‟s testimony at trial.” (Coffman, supra, 34 Cal.4th at p. 118.) In
other words, once an accused has been given the Miranda warnings, the accused‟s post-
Miranda silence may not be used to impeach an explanation subsequently offered at trial.
(Doyle, supra, at pp. 619-620; People v. Medina (1990) 51 Cal.3d 870, 890; People v.
O’Sullivan (1990) 217 Cal.App.3d 237, 244.)
       In Fletcher v. Weir (1982) 455 U.S. 603 (Fletcher), the court addressed the
admissibility of a defendant‟s postarrest, pre-Miranda silence to impeach his trial
testimony. The court rejected the extension of Doyle to such a situation, and clarified
that Doyle applied only when Miranda warnings have first been given because the silence
induced by Miranda warnings implicitly assured the defendant that his silence would not
be used against him. (Fletcher, supra, at pp. 605-607.) But Doyle is not violated when a
defendant testifies and is cross-examined about his postarrest silence, where no Miranda
warnings had been given following the arrest. (Fletcher, supra, at p. 607.)

       “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 p. 607.)


                                             16.
Both the defendant‟s pre-Miranda, pre- and postarrest silence is admissible to impeach
his or her trial testimony. (Fletcher, supra, 455 U.S. at p. 607; Jenkins v. Anderson
(1980) 447 U.S. 231, 238; People v. Earp (1999) 20 Cal.4th 826, 856-857; People v.
Delgado (1992) 10 Cal.App.4th 1837, 1842.)
       Here Sepulveda testified at trial and denied the charges, he was therefore properly
impeached with evidence of his postarrest silence because the silence occurred without
being given Miranda warnings. (Fletcher, supra, 455 U.S. at p. 607; People v. Earp,
supra, 20 Cal.4th at p. 856; People v. Delgado, supra, 10 Cal.App.4th at pp. 1842-1843.)
Any arguable error on the part of the prosecution in introducing evidence of Sepulveda‟s
postarrest, pre-Miranda silence in its case-in-chief before Sepulveda testified is harmless
beyond a reasonable doubt in light of his later trial testimony. (Champan v. California
(1967) 386 U.S. 18, 24; People v. Crandell (1988) 46 Cal.3d 833, 879.)
                                     DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                             Franson, J.
WE CONCUR:


 _____________________
Kane, Acting P.J.


 _____________________
Poochigian, J.




                                            17.
