PEOPLE v. CLELAND

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Rebecca CLELAND et al., Defendants and Appellants.

No. B143757.

-- May 27, 2003

Peter Gold, under appointment by the Court of Appeal, San Francisco, for Defendant and Appellant Rebecca Cleland. Colleen M. Rohan, under appointment by the Court of Appeal, for Defendant and Appellant Jose J. Quesada. Peter A. Leeming, under appointment by the Court of Appeal, Santa Cruz, for Defendant and Appellant Alvaro Quesada. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted two brothers, Alvaro Quesada (A. Quesada) and Jose J. Quesada (J. Quesada), and their cousin Rebecca Cleland of conspiring to murder and murdering (with special circumstances) Rebecca Cleland's husband, Bruce Cleland.   During trial, over defense counsel's objection, the prosecutor introduced evidence of an incriminating statement made by Jose Quesada in response to police questioning following his arrest but prior to being advised of his right to remain silent and to the presence of an attorney.   During the People's case-in-chief, the prosecutor also introduced evidence of J. Quesada's and Rebecca Cleland's postarrest silence and argued to the jury their silence constituted affirmative evidence of guilt.   Because these actions violated J. Quesada's and Rebecca Cleland's Fifth Amendment rights, we reverse their convictions and remand for a new trial.   We affirm the conviction of A. Quesada.

FACTUAL AND PROCEDURAL BACKGROUND

Bruce Cleland, a shy and frugal bachelor, worked as a software engineer for TRW, earning a substantial salary.   He had not dated much until he met Rebecca Quesada Salcedo at a swap meet in late 1995.   After the two began dating, Bruce Cleland became more outgoing.

While they were dating, Bruce Cleland showered Rebecca Salcedo with gifts including cars, trips, cosmetic surgery, clothes, a boat, furniture and a diamond ring.   Salcedo told her friends Bruce Cleland was “pretty well off” and “made good money.”   She disclosed her plan to marry Bruce Cleland, have a child, and then divorce him so she could collect child support and be “set for life.” Prior to their marriage Salcedo used Bruce Cleland's credit cards, without his knowledge, to pay for furniture and breast augmentation surgery.

Bruce Cleland and Rebecca Salcedo were married in October 1996 in a secret civil ceremony.   Although a large church wedding was already planned for January 1997, Salcedo insisted the two be married before purchasing a house.   After the civil marriage Bruce Cleland bought a large home in Whittier.   Rebecca Cleland, as she became known, moved into the house alone;  and Bruce Cleland moved in with his parents until the January 1997 church wedding.   Rebecca Cleland, who was having sexual relationships with several other people at the time, required Bruce Cleland to phone before visiting the Whittier house.

Both before and after the church wedding, Cleland 1 told friends and acquaintances she did not love Bruce Cleland, did not want to marry him, was unhappy with his sexual performance, had married him for his money and planned to divorce him quickly to obtain financial security.   She also asked her sister, Lorraine Salcedo, to help her find someone to kill Bruce and make it look like an accident.

Bruce Cleland moved back to his parents' home just three months later.   A. Quesada 2 moved into the Whittier house after Bruce Cleland moved back to his parents' home.   Cleland and A. Quesada were seen to be “very affectionate towards one another” and “always hugging and kissing.”   Cleland also resumed a sexual relationship with Steven Rivera, a male stripper and former boyfriend.

In April 1997 Cleland consulted with a divorce attorney and presented Bruce Cleland with a draft separation agreement that would allow her to continue living in the Whittier house and would require Bruce Cleland to pay the mortgage and give Cleland spending money.   When Bruce Cleland refused to sign the agreement, Cleland threatened to retaliate by claiming he had molested her young son.   Bruce Cleland contacted a divorce attorney of his own, who opined that if the marriage were dissolved, Cleland would not be entitled to a sizeable property settlement or substantial spousal support.

Notwithstanding all these difficulties, Bruce Cleland apparently wanted his marriage to succeed.   On July 25, 1997 he told his parents he was going to meet with Cleland to try and work out their differences.   The two had dinner together that evening.   During dinner, Cleland called A. Quesada or his father Arturo Quesada several times on the restaurant's pay telephone and her cellular telephone.   The couple then went to Arturo Quesada's house for drinks.   When they left Arturo Quesada's home at about 1:00 a.m., Cleland was driving.

Telephone records introduced at trial indicated that A. Quesada telephoned Arturo Quesada's house several times between 12:35 a.m. and 12:49 a.m. Cleland phoned A. Quesada several times between 1:00 a.m. and 1:01 a.m. on her cellular telephone.   Some of these calls placed A. Quesada and his cellular telephone close to the location where Bruce Cleland was killed.

Cleland subsequently reported to the police that, shortly after leaving Arturo Quesada's house, she noticed a warning light on the dashboard indicating the rear hatch was open.   She stopped near the entrance to the Interstate 5 freeway, got out of the car to shut the hatch and was struck on the back of the head and knocked to the ground.   Residents of nearby houses heard gunshots, saw a man running away from the scene and heard a car door slam and a car speed away from the area.   A passing taxi driver summoned emergency personnel, who arrived within minutes of the shooting and found Bruce Cleland face-down in a nearby driveway, dead from multiple gunshot wounds.

When the police arrived, Cleland's car engine was still running.   Cleland's keys, purse, cellular telephone and jewelry were on the front seat.   Cleland told police her diamond ring was missing.   She identified Bruce Cleland as her husband, but did not attempt to approach his body or ask about his condition.   She was taken to the police station, where her demeanor was described as “relaxed, lackadaisical, uninterested.”

After Bruce Cleland's death, Cleland told a friend she would support herself from Bruce Cleland's life insurance policies.   She quickly retained counsel and set about obtaining the proceeds from Bruce Cleland's basic life insurance policy from TRW, which would pay a sum equal to half of Bruce Cleland's annual salary, a TRW optional accidental death policy for $517,000;  a $25,000 accidental death policy;  a mortgage life insurance policy from Minnesota Life Insurance Company, which would pay the balance on the Whittier house in the event of Bruce Cleland's death;  and the $196,000 proceeds of Bruce Cleland's TRW stock savings plan.   After the murder, A. Quesada continued to live with Cleland at the Whittier house.

Cleland, A. Quesada and J. Quesada were ultimately arrested and charged with conspiracy to commit murder and first degree murder, with special allegations the murder was committed for financial gain and while lying in wait.   After a jury trial, all three defendants were convicted on both counts;  and the jury found the special circumstances allegations to be true.   New trial motions by Cleland and A. Quesada were denied.   All three defendants were sentenced to life in prison without the possibility of parole.

CONTENTIONS

 Cleland contends that her Fifth Amendment privilege against self incrimination was violated by the use of her postarrest silence as affirmative evidence of guilt and by the prosecutor's comments on her silence during closing argument and that the prosecutor also impermissibly commented on the exercise of her Sixth Amendment right to counsel.   J. Quesada contends his Fifth Amendment rights were violated by admission of a postarrest, pre-Miranda incriminating statement and by the use of his postarrest silence and the prosecutor's comments on that silence.   A. Quesada contends there was insufficient evidence to support his convictions, that the trial court improperly excluded an exculpatory statement made by Cleland and that he was denied the effective assistance of counsel.3

DISCUSSION

I. The Prosecutor's Comments on Cleland's and J. Quesada's Postarrest Silence and Use of J. Quesada's Postarrest Statement as Evidence of Guilt Violated Their Constitutional Privilege Against Self-Incrimination

 On February 17, 1998 Los Angeles Police Department homicide detective Rick Peterson arrested Cleland at her home, put her in his police car and drove to a parking lot near the Interstate 605 freeway where he waited for his partner Detective Thomas Herman to deliver J. Quesada, who had been separately arrested by Herman.   After Herman arrived with J. Quesada, the detectives moved J. Quesada to Peterson's car, which was equipped with an activated, hidden recording device.   The detectives then left Cleland and J. Quesada alone in the car for approximately 15 minutes.   As Peterson explained, “We did it to see what the topic of discussion would be if [we] put them together in a police vehicle.”   However, other than an initial greeting by J. Quesada, neither defendant spoke to the other during that time.4

Following the silent reunion in Peterson's car, Herman returned J. Quesada to his police car and drove him to the Hollenbeck division police station.   After they arrived at the station, Herman asked J. Quesada to identify the person with whom he had been left in the police car.   Herman initially testified J. Quesada replied to his question by stating “he didn't know who it was.”   He later testified J. Quesada answered the question, “ ‘I've never seen her before.’ ” 5

J. Quesada objected to the introduction of this evidence on the ground it violated his “right to remain silent.”   The trial court overruled the objection and subsequently denied a new trial motion brought by J. Quesada on the same ground.

 A. Cleland and J. Quesada Have Not Waived Their Constitutional Claim

 The People erroneously contend Cleland and J. Quesada waived their constitutional claim by failing to raise it at trial.   J. Quesada unsuccessfully objected at a sidebar conference to this testimony before it was admitted.   His objection was sufficient to give the trial court the opportunity to correct or avoid any error and thus preserved the issue for appeal.   (People v. Green, supra, 27 Cal.3d at p. 27, 164 Cal.Rptr. 1, 609 P.2d 468 [purpose of rule requiring timely objection is to give trial court the opportunity to correct the error].) 6  In light of the trial court's ruling on J. Quesada's objection to the testimony, any objection by Cleland would have been futile.   Accordingly, a separate objection was not required.   (People v. Chavez, supra, 26 Cal.3d at p. 350, fn. 5, 161 Cal.Rptr. 762, 605 P.2d 401 [objection not required where it would have been futile];  People v. Roberto v., supra, 93 Cal.App.4th at p. 1365, fn. 8, 113 Cal.Rptr.2d 804 [argument or objection not required to preserve point when it would have been futile].)

 B. The Use of J. Quesada's Postarrest, Pre-Miranda Statement to Police Violated His Privilege Against Self-Incrimination

 Conceding the record does not reflect that J. Quesada had been advised of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) prior to being asked whether he recognized the person he had been with in the patrol car, the People necessarily assume for purposes of this appeal, as do we, that no such advisements had been given.(Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)   They also concede the Miranda admonitions must be given and a suspect in custody, as was J. Quesada, must knowingly and intelligently waive those rights before being subjected to either express questioning or its “functional equivalent.”  (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297;  People v. Ray (1996) 13 Cal.4th 313, 336, 52 Cal.Rptr.2d 296, 914 P.2d 846.)  “ ‘Interrogation’ consists of express questioning, or words or actions on the part of the police that ‘are reasonably likely to elicit an incriminating response from the suspect.’  [Citations.]  ‘The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’  [Citations.]”  (People v. Cunningham (2001) 25 Cal.4th 926, 993, 108 Cal.Rptr.2d 291, 25 P.3d 519.)

Relying on U.S. v. Guiterrez (7th Cir.1996) 92 F.3d 468, the People contend the question to J. Quesada was merely a “request for identification information” and not reasonably likely to elicit an incriminating response.   In Guiterrez a suspect who had just been arrested and not yet advised of his Miranda rights was asked if he could identify other people on the premises.   He identified several individuals and made other, incriminating statements.  (Id. at pp. 470-472.)   The Seventh Circuit allowed use of the statements at trial, holding that police officers may properly ask preliminary questions concerning the suspect's identity or the identity of others before giving Miranda warnings.  (Id. at p. 471.)

The rule articulated in U.S. v. Guiterrez, supra, 92 F.3d 468 is consistent with governing California law:  “Clearly, not all conversation between an officer and a suspect constitutes interrogation.   The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.  [Citations.]”  (People v. Clark (1993) 5 Cal.4th 950, 985, 22 Cal.Rptr.2d 689, 857 P.2d 1099;  People v. Clair (1992) 2 Cal.4th 629, 679-680, 7 Cal.Rptr.2d 564, 828 P.2d 705 [“interrogation” does not extend to “inquiries” limited to identifying a person found under suspicious circumstances or near the scene of a recent crime];  see People v. Ray, supra, 13 Cal.4th at p. 338, 52 Cal.Rptr.2d 296, 914 P.2d 846 [“not all questioning of a person in custody constitutes interrogation under Miranda ”];  People v. Herbst (1986) 186 Cal.App.3d 793, 798-800, 233 Cal.Rptr. 123 [answers to routine booking questions need not be preceded by Miranda warnings to be admissible].)  In the present case, however, the police were well aware of Cleland's identity and her relationship to J. Quesada at the time they questioned J. Quesada.   Asking him to identify Cleland had no legitimate purpose;  it was simply a technique intended to elicit an incriminating statement.   Such questioning was improper in the absence of admonitions under Miranda.  (People v. Cunningham, supra, 25 Cal.4th at p. 993, 108 Cal.Rptr.2d 291, 25 P.3d 519;  see People v. Sims (1993) 5 Cal.4th 405, 443-444, 20 Cal.Rptr.2d 537, 853 P.2d 992 [where the defendant asked about extradition and officer instead responded by talking about the crime, the officer's questions served no legitimate purpose and were instead a technique of persuasion likely to induce the defendant to incriminate himself].)  Accordingly, it was error to admit J. Quesada's response into evidence.   As we explain in section D, below, that error was not harmless beyond a reasonable doubt.  (Cunningham, at p. 994, 108 Cal.Rptr.2d 291, 25 P.3d 519;  Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.)

 C. The Trial Court Erred in Admitting Evidence of Cleland's and J. Quesada's Postarrest Silence, and the Prosecutor Committed Misconduct by Arguing that Silence Was Evidence of Guilt

 Police officers may monitor conversations in a police car between suspects in an effort to obtain incriminating statements, as Detectives Peterson and Herman attempted to do in this case.  (People v. Loyd (2002) 27 Cal.4th 997, 1009, fn. 14, 119 Cal.Rptr.2d 360, 45 P.3d 296;  Arizona v. Mauro (1987) 481 U.S. 520, 529, 107 S.Ct. 1931, 95 L.Ed.2d 458 [“Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”].) “When there is custody but not interrogation Miranda does not apply.  [¶] When appellant and Daniels conversed in the back of the police car, secretly being recorded, there was custody but no interrogation.”  (People v. Harmon (1992) 7 Cal.App.4th 845, 853, 9 Cal.Rptr.2d 265;  see also People v. Grant (1988) 45 Cal.3d 829, 842, 248 Cal.Rptr. 444, 755 P.2d 894 [“Transportation of a prisoner by car, listening for voluntary incriminating remarks, and custodial restraint of potentially dangerous individuals are not inherently suspect police activities.”];  People v. Crowson (1983) 33 Cal.3d 623, 628-630, 190 Cal.Rptr. 165, 660 P.2d 389.)   Thus, it would have been constitutionally permissible for the People to introduce evidence of any postarrest statements made by Cleland or J. Quesada when they were together in Peterson's police car, whether or not they had been advised of their Miranda rights.

 In addition, it would have been permissible for the People to cross-examine Cleland and J. Quesada regarding their postarrest, pre-Miranda silence to impeach them if they had elected to testify on their own behalf at trial:  “In the absence of the sort of affirmative assurances embodied in the Miranda warnings,7 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.”  (Fletcher v. Weir (1982) 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490, italics added;  People v. Delgado (1992) 10 Cal.App.4th 1837, 1842, 13 Cal.Rptr.2d 703;  see People v. Redmond (1981) 29 Cal.3d 904, 910-911, 176 Cal.Rptr. 780, 633 P.2d 976 [“When a defendant elects to testify in his own defense a comment on his prior muteness does not necessarily violate his privilege against self-incrimination.”].)

Use of Cleland's and J. Quesada's postarrest silence as affirmative evidence to establish guilt during the prosecution's case-in-chief, rather than as impeachment evidence, however, stands on a different constitutional footing.  (See Harris v. New York (1971) 401 U.S. 222, 224, 226, 91 S.Ct. 643, 28 L.Ed.2d 1 [statements that are inadmissible as affirmative evidence because of a failure to comply with Miranda can nevertheless be used for impeachment purposes to attack the credibility of a defendant's trial testimony as long as the statements were not “coerced” or “involuntary”];  Oregon v. Hass (1975) 420 U.S. 714, 722, 95 S.Ct. 1215, 43 L.Ed.2d 570 [statement taken after police fail to honor suspect's invocation of the right to counsel during interrogation is admissible for impeachment purposes];  see also People v. Peevy (1998) 17 Cal.4th 1184, 1193-1195, 1202, 73 Cal.Rptr.2d 865, 953 P.2d 1212 [explaining balance being struck in Harris and its progeny between exposing defendants who commit perjury at trial and safeguarding a suspect's privilege against self-incrimination].)

 The Fifth Amendment to the United States Constitution provides that “[n]o person ․ shall be compelled in any criminal case to be a witness against himself․” 8 Although a defendant who volunteers an admission or statement before questioning or who testifies on his or her own behalf at trial may be held to have waived the protection of that right, the defendant who stands silent cannot.   To allow affirmative evidence regarding such silence in the prosecution's case-in-chief, together with argument that such silence equates with guilt, impermissibly burdens the privilege against self-incrimination.  (Griffin v. California (1965) 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 [“the Fifth Amendment ․ forbids ․ comment by the prosecution on the accused's silence ․”];   see Miranda v. Arizona, supra, 384 U.S. at p. 468, fn. 37, 86 S.Ct. 1602[“[t]he prosecution may not ․ use at trial the fact that [the defendant] stood mute or claimed his privilege in the face of accusation” when he was “under police custodial interrogation”].)

 Although Griffin itself concerned the prosecution's comment on defendant's failure to testify at trial and did not expressly determine the propriety of prosecutorial comment on a defendant's pretrial silence, the holding of Griffin has been extended to “ ‘either direct or indirect comment upon the failure of the defendant to take the witness stand․’ ” (People v. Hovey (1988) 44 Cal.3d 543, 572, 244 Cal.Rptr. 121, 749 P.2d 776.)  “Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence.   Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt.  [Citations.]”  (People v. Lewis (2001) 25 Cal.4th 610, 670, 106 Cal.Rptr.2d 629, 22 P.3d 392.)

“Prosecutorial comment which draws attention to a defendant's exercise of his constitutional right not to testify, and which implies that the jury should draw inferences against defendant because of his failure to testify, violates defendant's constitutional rights.  [Citation.]  ․ [¶] California decisions reach the same result.   In People v. Vargas (1973) 9 Cal.3d 470 [108 Cal.Rptr. 15, 509 P.2d 959], the prosecutor commented that ‘there is no denial at all that they [defendants] were there’;  we held that comment improperly reflected on defendants' failure to testify.  [Citation.]   In People v. Medina (1974) 41 Cal.App.3d 438 [116 Cal.Rptr. 133], the prosecutor said the testimony of his witnesses was ‘unrefuted’;  the Court of Appeal found Griffin error because ‘the defendants, who were the only ones who could have refuted it, did not take the stand.’  [Citations, fn. omitted.]”   (People v. Murtishaw (1981) 29 Cal.3d 733, 757, 175 Cal.Rptr. 738, 631 P.2d 446.)

 We need not decide in this case whether any use of postarrest, pre-Miranda silence as affirmative evidence of guilt necessarily violates a defendant's Fifth Amendment rights, even if the prosecutor has not drawn attention to the defendant's failure to testify at trial, although we note that several federal courts of appeals have reached that result.  (See, e.g., U.S. v. Whitehead (9th Cir.2000) 200 F.3d 634, 638 [fact of silence in the face of arrest without reference to Miranda warnings could not be used as substantive evidence of guilt, because that would “ ‘act[ ] as an impermissible penalty on the exercise of the ․ right to remain silent.’ ”];  U.S. v. Moore (D.C.Cir.1997) 104 F.3d 377, 384-389 [government may not affirmatively use postarrest silence as evidence of guilt, even where silence preceded Miranda warnings].)  In the present case there can be no doubt the prosecutor's emphasis on Cleland's and J. Quesada's 15 minutes of silence during closing argument impermissibly drew attention to their decision not to testify at trial to explain their conduct in the police car or otherwise to establish their innocence.9

The prosecutor argued, “Now, we also have Defendant Jose Que[s]ada's behavior when he was arrested on February 17, 1998.   Remember the testimony.   He is put in the back seat of a police car with his cousin, Defendant Rebecca Cleland.   And what do we have?   Absolute silence.   We have, ‘How are you doing?’   And then that's it.   For 15 minutes, not another word is spoken.   No small talk.   Nothing.  Why not?

“Now, Defendant Jose Que[s]ada tries to claim, gosh, I didn't know it was my cousin, I had never seen her before.   Nonsense.  Of course he knows it's his cousin.   And even if he didn't, you are sitting in the back of a police car with somebody, you are not going to say a word to them?   And defendant Rebecca Cleland admits, she knows this is her cousin sitting in the car with her.   She doesn't say a word either.   Nothing. 15 minutes of silence.   Why? Because they are afraid the police might be listening in and they don't want to say anything.

“Think about it.   You have been arrested for something.   You don't have any idea what you are doing there.   You are in the back seat of a police car with your cousin and you just kind of sit there for 15 minutes?   Nonsense.

“Ladies and gentlemen, that silence speaks volumes because what really happened?   Defendant Rebecca Cleland, defendant Jose Que[s]ada, and defendant Alvaro Que[s]ada had set up the murder of Bruce.   They thought they had gotten away with it.   All of a sudden, defendant Jose Que[s]ada and defendant Rebecca Cleland are sitting in the back of a police car with each other and they are looking at each other but they are not saying a word.”

In rebuttal, the prosecutor asserted “there is no innocent explanation” for Cleland's and J. Quesada's silence in the police car.  “If they hadn't done anything and they are both sitting in the back of a police car, why didn't defendant Rebecca Cleland turn to her cousin and say, ‘what are you doing here?’   And why didn't he say, ‘what are you doing here?’   Why? Because they both knew what they were doing there.   That's why there was no conversation.   It all fits.”

Because Cleland and J. Quesada were the only people who could have answered the question “why” and provide an innocent explanation for their silence in the police car,10 this argument and the evidence upon which it was based constituted Griffin error.  (People v. Lewis, supra, 25 Cal.4th at p. 670, 106 Cal.Rptr.2d 629, 22 P.3d 392;  People v. Bradford (1997) 15 Cal.4th 1229, 1339, 65 Cal.Rptr.2d 145, 939 P.2d 259 [“a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand”];  People v. Johnson (1992) 3 Cal.4th 1183, 1229, 14 Cal.Rptr.2d 702, 842 P.2d 1 [“a prosecutor errs by referring to evidence as ‘uncontradicted’ when the defendant, who elects not to testify, is the only person who could have refuted it.”].)

 D. The Federal Constitutional Errors Were Not Harmless beyond a Reasonable Doubt

 When federal constitutional error has been established, we must reverse the conviction unless the People have established, beyond a reasonable doubt, that the error did not contribute to the verdict.  (Chapman v. California, supra, 386 U.S. at p. 24, 87 S.Ct. 824 [federal constitutional error requires proof of harmlessness beyond a reasonable doubt];  People v. Cunningham, supra, 25 Cal.4th at p. 994, 108 Cal.Rptr.2d 291, 25 P.3d 519 [prejudicial effect of violations of defendant's Fifth Amendment rights must be evaluated under Chapman standard].)  “Under this test, the appropriate inquiry is ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.’  [Citation, italics original.]”  (People v. Quartermain (1997) 16 Cal.4th 600, 621, 66 Cal.Rptr.2d 609, 941 P.2d 788.)   The People have not met their burden in this case.

The case against Cleland was entirely circumstantial.   The prosecutor presented considerable evidence she was a person of bad character who apparently married Bruce Cleland for his money;  she had affairs with other people during the time she was involved with Bruce Cleland;  she took out insurance policies on his life and forged his signature on at least one policy application;  and she attempted to obtain a favorable divorce settlement by threatening to accuse Bruce Cleland of sexually molesting her son.   With respect to events on the night of the murder, Cleland arranged a meeting with Bruce Cleland;  she had multiple cell phone conversations with A. Quesada, who was apparently near the murder scene, that night;  she suffered no discernable physical injuries as a result of the supposed attempted carjacking that led to Bruce Cleland's murder;  she was wearing a wedding ring during a post-murder search of her home, even though she claimed her diamond ring had been taken by carjackers;  and she paid $500 to A. Quesada after the murder.

Although this evidence surely established Cleland's greed and her poor treatment of Bruce Cleland, none of it tied her directly to the murder.   Moreover, Cleland presented evidence to blunt some of the more damaging evidence.   For example, she established the life insurance policies were purchased in response to solicitations by the insurance companies rather than as a result of her own initiative.   She also presented testimony that A. Quesada was upset on the night of the murder and wanted to talk to her because he had just broken up with his girlfriend.   On this record it is not possible to conclude that the finding of guilt as to Cleland “ ‘was surely unattributable to the error’ ” in repeatedly commenting on her postarrest silence.  (People v. Quartermain, supra, 16 Cal.4th at p. 622, 66 Cal.Rptr.2d 609, 941 P.2d 788.)

The evidence against J. Quesada was somewhat stronger, but we must evaluate not only the prejudicial effect of the prosecutor's comments on his postarrest silence but also the erroneous admission of his highly incriminating denial of knowing Cleland.   The People's primary witness against J. Quesada was an admitted drug dealer and paid informant who testified J. Quesada approached him and asked for a gun and a driver because he had a “hit he had to take care of.”   The witness, whose credibility was questionable from the outset, also testified J. Quesada approached him approximately three months before J. Quesada was arrested for the murder.   Bruce Cleland was killed on July 26, 1997, and J. Quesada was not arrested until February 17, 1998-almost seven months later.   If the conversation took place as described, therefore, it necessarily occurred after Bruce Cleland was killed.

The People's “eyewitness” evidence was similarly uncompelling.   Virginia Selva saw the shooter running away from the murder scene, but did not see his face and could not identify J. Quesada as the shooter, either at the time of the incident or when she initially testified at trial.   In the middle of the trial, however, she was recalled to testify that J. Quesada's “back looked the same as the [shooter], only not as heavy.”   Lupe Hernandez did identify J. Quesada as the shooter at trial, but her testimony was impeached by prior statements to the police that she did not see the person's face.   Moreover, although she picked J. Quesada's photograph out of a photographic lineup, she did not identify him as the shooter but merely wrote on the form “Photo 4 is the closest to the person I saw running down the street” after the shooting.   Similarly, when presented with a live lineup, Hernandez wrote “From the six I would say number 6 looks most like the man I saw that night.”   Hernandez told the police the shooter was a “gang member” and was 18 to 20 years old, 5′5” tall, weighing 150 to 160 pounds.   However, the undisputed evidence established that at the time of the shooting J. Quesada was 30 years old, weighed 180 pounds, and wore glasses and had a splint on his arm.

Ilma Lopez testified she received a telephone call on the night of the shooting and that the person asked for “Jose Quesada.”   Evidence was presented that the phone call was made by Cleland from the restaurant where she was having dinner with Bruce Cleland.   However, Lopez's testimony was tainted by the fact that the police reminded her of both the date of the call and the last name of the person for whom the caller asked.

J. Quesada presented evidence that he fractured his right wrist on May 25, 1997, and wore a cast for six weeks thereafter and was in a splint for some time after that.   He presented medical evidence that as of October 24, 1997-some three months after the murder-his wrist was still swollen and painful and had only about 50 percent of normal strength and movement.   There was no evidence that J. Quesada ever visited Cleland's home, took money from her, or telephoned her.   As with Cleland, on this record it is not possible to conclude that the combined effect of the admission of J. Quesada's statement in violation of his Miranda rights and the prosecutor's commission of Griffin error did not contribute to the guilty verdicts.

II.-VII.**

DISPOSITION

The convictions of Rebecca Cleland and Jose Quesada are reversed, and the matter is remanded for retrial.   The conviction of Alvaro Quesada is affirmed.

FOOTNOTES

1.   Rebecca Cleland will hereafter be referred to as “Cleland.”   Her late husband will be identified as “Bruce Cleland.”

2.   Alvaro and Jose Quesada, as well as the other parties, disagree on the proper spelling of the brothers' last name.   In conformity with the information and abstract of judgment, we use “Quesada” instead of “Quezada.”

3.   All three appellants also contend the trial court improperly instructed the jury with CALJIC No. 17.41.1, the “anti-nullification” instruction.   The contention this instruction deprives a defendant of the right to a fair trial and to due process of law was rejected in People v. Engelman (2002) 28 Cal.4th 436, 121 Cal.Rptr.2d 862, 49 P.3d 209, in which the Supreme Court held CALJIC No. 17.41.1 does not infringe upon a defendant's federal or state constitutional right to trial by jury or state constitutional right to a unanimous verdict.   However, the challenged instruction may not be given at the retrial of Cleland and J. Quesada.   (Id. at p. 449, 121 Cal.Rptr.2d 862, 49 P.3d 209 [directing that instruction not be given in trial conducted in the future because it creates an unnecessary and inadvisable risk to the proper function of jury deliberations].)It is unnecessary for us to consider several additional claims of trial error raised by Cleland and J. Quesada in light of our decision to remand the case as to them for a new trial.

4.   The tape recording was not played at trial.   Peterson was permitted to testify as to the contents of the recording in apparent violation of Evidence Code section 1523, which provides that oral testimony generally is not admissible to prove the content of a “writing,” including a tape recording.   Because no defendant raised this objection at trial, it has been waived.  (See People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.)

5.   When asked the same question by Herman, Cleland replied “ ‘My cousin, Joe.’ ”

6.   The People assert J. Quesada objected only to the use of his response to Detective Herman's question about the identity of the other suspect in custody and not to testimony regarding his postarrest silence in the police car.   We disagree with the People's reading of the record.   Even if the People were correct, however, in light of the trial court's erroneous ruling permitting testimony regarding his pre-Miranda statement, it plainly would have been futile for J. Quesada to object to use of his postarrest silence to establish his guilt.   Accordingly no objection was required to preserve this point for appeal.  (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5, 161 Cal.Rptr. 762, 605 P.2d 401;  People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1365, fn. 8, 113 Cal.Rptr.2d 804.)

7.   In Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 the Supreme Court found an implied assurance in the warnings given pursuant to Miranda that silence will carry no penalty and stated 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.”  (Id. at p. 618, 96 S.Ct. 2240.)

8.   The Fourteenth Amendment incorporates the Fifth Amendment privilege against self-incrimination against the states with “the same standards” as in a federal proceeding.  (Malloy v. Hogan (1964) 378 U.S. 1, 11, 84 S.Ct. 1489, 12 L.Ed.2d 653.)   Following the adoption of California Constitution, article I, section 28, subdivision (d), statements (or silence) obtained in violation of a defendant's constitutional privilege against self-incrimination may not be excluded from evidence unless such exclusion is compelled by federal law.   (People v. Cunningham, supra, 25 Cal.4th at p. 993, 108 Cal.Rptr.2d 291, 25 P.3d 519;  People v. May (1988) 44 Cal.3d 309, 316, 243 Cal.Rptr. 369, 748 P.2d 307.)

9.   Neither Cleland nor J. Quesada objected to the prosecutor's remarks or requested an admonition from the trial court to cure the potential harm caused by those comments, actions that are normally necessary to preserve this issue for appeal.  (People v. Lewis, supra, 25 Cal.4th at p. 670, 106 Cal.Rptr.2d 629, 22 P.3d 392.)   In light of the trial court's earlier ruling permitting introduction of the evidence of Cleland's and J. Quesada's postarrest silence, however, an objection would likely have been futile.  (People v. Arias (1996) 13 Cal.4th 92, 159, 51 Cal.Rptr.2d 770, 913 P.2d 980 [failure to object and request an admonition waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective].)Both Cleland and J. Quesada also argue that, if objections to the prosecutor's argument and a request for an admonition were required, their counsels' omissions deprived them of the effective assistance of counsel.   We agree.   Failure to preserve the claim of Griffin error in this case would fall below an objective standard of reasonableness and, as explained in section D, below, there is a reasonable probability that, but for counsels' deficient performance (assuming it was deficient), the result of the trial would have been different.  (Strickland v. Washington (1984) 466 U.S. 668, 686-687, 104 S.Ct. 2052, 80 L.Ed.2d 674;  People v. Williams (1997) 16 Cal.4th 153, 215, 66 Cal.Rptr.2d 123, 940 P.2d 710.)   Furthermore, the record demonstrates there could have been no rational tactical purpose for counsels' omission.  (People v. Lucas (1995) 12 Cal.4th 415, 442, 48 Cal.Rptr.2d 525, 907 P.2d 373.)

10.   Contrary to the prosecutor's insistence that postarrest silence is tantamount to an admission of guilt, both the United States and California Supreme Courts have recognized that one who is innocent of any crime might well react to the frightening circumstances surrounding arrest by remaining silent.  (E.g., United States v. Hale (1975) 422 U.S. 171, 177, 95 S.Ct. 2133, 45 L.Ed.2d 99 [“At the time of arrest and during custodial interrogation, innocent and guilty alike-perhaps particularly the innocent-may find the situation so intimidating that they may choose to stand mute.   A variety of reasons may influence that decision․ [An arrestee] may have maintained silence out of fear or unwillingness to incriminate another.   Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.”];  People v. Redmond, supra, 29 Cal.3d at p. 919, 176 Cal.Rptr. 780, 633 P.2d 976 [“A defendant's silence is generally ‘so ambiguous that it is of little probative force.’  [Citation.]”].)

FOOTNOTE.   See footnote *, ante.

PERLUSS, P.J.

We concur:  JOHNSON and MŨNOZ (AURELIO), JJ.***

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