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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Ervine James WILLIAMS, Defendant and Appellant.

No. H008472.

Decided: August 07, 1992

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Mary A. Roth, Deputy Atty. Gen., for plaintiff and respondent. Victoria Belco, Berkeley, for defendant and appellant.

Defendant was convicted of violating Vehicle Code section 10851, subdivision (a) (unlawful driving or taking a vehicle) and Penal Code section 496 (receiving stolen property).   He was sentenced to three years in state prison.   On appeal, he asserts that reversal is required because of Doyle error.   In addition, he asserts that (1) there were numerous instances of prosecutorial misconduct, (2) the trial court erred when it refused to give a pinpoint instruction and (3) he could not be convicted of both offenses.   In the Published portion of this opinion, we find that Doyle error requires reversal and the proffered pinpoint instruction should have been given.   For the reasons expressed below, we reverse.


At 7:30 p.m. on May 26, 1990, San Jose Police Officers Melo and Wilson stopped a late model blue Toyota for speeding.   Defendant was the driver of the vehicle (hereafter the Toyota).   Two passengers were in the Toyota.   One of the passengers was Tonya Milburn.   Melo asked defendant for his license and registration.   Defendant had neither.   Defendant was nervous and reluctant to provide the officers with any information.   Defendant told them that he had rented the Toyota at the San Jose Airport.   Then he said that he had gotten it from a friend of his named Frank who “works moving cars” for Hertz.   Defendant explained to the officers that Frank owed him $20 so Frank lent him the Toyota to repay the debt.

Defendant identified himself as “Ervine Hamilton” hoping that the officers would not find out that there was a warrant out for his arrest for violation of his parole.   However, the officers discovered that defendant was a parolee at large and placed him under arrest.   Subsequent investigation revealed that Hertz, the owner of the Toyota, had not authorized defendant's use of the vehicle.   Unidentified clothing was found in the trunk of the Toyota.

Defendant was charged by information with violating Vehicle Code section 10851, subdivision (a) (driving or taking a vehicle) and Penal Code section 496 (receiving stolen property) and three prison priors were alleged pursuant to Penal Code section 667.5, subdivision (b).   The priors were bifurcated.   The court ruled in limine that the prosecution could impeach defendant with his prior convictions but the specific facts of the priors could not be introduced.

Ms. Milburn testified for the prosecution at trial.   She had been staying with defendant at his brother's apartment for a couple of days prior to defendant's arrest.   Either on the morning of the day of defendant's arrest or the day before, Ms. Milburn first noticed the Toyota in a parking stall at the apartment complex.   She recalled that the Toyota was white but wasn't sure and could have been mistaken about the color.   Using the Toyota, defendant drove Ms. Milburn to her previous residence to retrieve some of her belongings.   Ms. Milburn testified that she was in the front passenger seat of the Toyota when defendant was later stopped by the police.   Officer Melo testified that Ms. Milburn was in the back seat of the Toyota when defendant was stopped.

Defendant's brother David testified that a friend of his father's, Frank Edwards, had come by his apartment on May 26 in the Toyota.   David had previously seen Edwards wearing a Hertz hat or shirt and Edwards had told him that he worked for Hertz.   David “figured” that Edwards had acquired the Toyota from Hertz.   Sometime between 6 and 8 p.m., defendant asked Edwards for a ride and Edwards instead lent the Toyota to defendant.

Defendant testified that Edwards drove up to David's apartment in the Toyota and defendant asked him for a ride.   Instead, Edwards offered to lend him the Toyota.   Defendant knew that Edwards worked for Hertz and had seen Edwards driving new cars before.   Therefore he “figured everything was legit.”   He thought that Edwards had rented the car or that use of vehicles was a benefit of Edwards' employment.   Defendant gave Edwards $20 “for gas and for the favor.”   Defendant heard David ask Edwards if the Toyota was rented out to Edwards and Edwards reply “yes, it's in the computer under my name.” 1  Defendant left with the car around 6 p.m.

Ralph Jenkins testified that he too had borrowed a car from Frank Edwards and had been arrested for auto theft when he was stopped driving that car.   A Hertz representative testified that Edwards had been employed by Hertz as a “transporter” moving Hertz cars from lot to lot and taking the vehicles to be cleaned.   Edwards was fired on June 6, 1990, for taking a car from Hertz without approval.   The parties stipulated that they had both attempted to locate Edwards but had been unsuccessful.

The court refused to give a pinpoint instruction on mistake of fact offered by the defense.   Instead the court gave CALJIC 4.35, the pattern jury instruction on mistake of fact.   Defendant was convicted of both counts.   One prior was stricken and defendant admitted the other two.

Defendant moved for a new trial based on newly discovered evidence and prosecutorial misconduct.   The motion was denied.   A three year term was imposed for the vehicle theft count.   A two year term was selected for the receiving stolen property count but was stayed pursuant to Penal Code section 654.   One year terms for the two prison priors were stayed.   Defendant was committed to state prison for three years.



During her cross-examination of defendant, the prosecutor tried to characterize his testimony on direct as unbelievable.   As part of this effort, she impeached defendant with the fact that he had remained silent after he was advised of his rights.  “Q.  Okay.   Sir, isn't it true when you were taken to the station and you were mirandized by the officer, that you wouldn't—that you were mirandized by the officer, that you wouldn't give him the name [Frank Edwards]?  [¶] A.   I gave him the name Frank.   I couldn't remember the last name, but I told him the name all the way from the scene of the arrest all the way down to the station.   I told him the name, where he worked, described him and everything.  [¶] Q.   But isn't it true when you were mirandized you said— [¶] A.   I didn't want to make a statement without a lawyer being present, that's what I said.  [¶] Q.   But isn't it true that you said you— [¶] Mr. Kennedy:  I would like to object for the record, your honor.  [¶] The Court:  Sustained.”   On rebuttal the prosecution elicited Officer Wilson's testimony that upon being advised of his Miranda rights defendant invoked his right to remain silent and refused to answer questions.   Officer Melo had earlier testified that after defendant was brought to the police station he would not speak with the officers.

The error which defendant complains of is commonly known as Doyle error.   In Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 the U.S. Supreme Court held that “the use for impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.”   (Doyle v. Ohio, supra, 426 U.S. at p. 619, 96 S.Ct. at 2245.)  “[W]hile 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.”  (Id. at p. 618, 96 S.Ct. at 2245.)

 The Attorney General asserts that defendant's failure to request an admonition below prevents him from obtaining appellate review of this issue.   Assuming, without deciding, that a request for admonition was necessary to preserve defendant's claim of Doyle error, we find that no request was required in this case because an admonition could not have cured the harm.  (People v. Green (1980) 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.)  “In no case has a prompt and forceful instruction alone been held sufficient to vitiate the use of post-arrest silence.”  (Morgan v. Hall (1st Cir.1978) 569 F.2d 1161, 1168.)  Doyle error is “so readily subject to misinterpretation by a jury as to render a curative or protective instruction of dubious value.”  (United States v. Prescott (9th Cir.1978) 581 F.2d 1343, 1352.)   We hold that defendant adequately preserved his claim of Doyle error for appellate review.

 The existence of Doyle error does not require reversal if the error is harmless beyond a reasonable doubt.  (Williams v. Zahradnick (4th Cir.1980) 632 F.2d 353, 360–361.)   In considering whether a Doyle error was harmless, the reviewing court should consider:  (1) “The use to which the prosecution puts the postarrest silence”, (2) “Who elected to pursue the line of questioning”, (3) “The quantum of other evidence indicative of guilt”, (4) “The intensity and frequency of the reference” and (5) “The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.”  (Id. at pp. 361–362.)

Doyle error generally falls into one of three categories:  “(1) When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.  [¶] (2) When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.  [¶] (3) When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.”  (Matire v. Wainwright (11th Cir.1987) 811 F.2d 1430, 1436;  accord U.S. v. Carter (5th Cir.1992) 953 F.2d 1449, 1463.)

 The prosecutor emphasized defendant's silence after being advised of his rights by eliciting testimony from both arresting officers that defendant had invoked his right to remain silent.   She repeatedly questioned defendant about his silence until an objection was sustained.   During closing argument she again referred to defendant's refusal to speak with the police at the station.   Unquestionably, the prosecutor made substantial use of defendant's post-arrest silence in violation of Doyle to impeach the defense offered at trial.   The import of the prosecutor's questions and argument was that defendant had not spoken up earlier because his defense was a fabrication.

 Under Matire, reversal is required where defendant's post-arrest silence was used to impeach his exculpatory story even if defendant's story was “transparently frivolous.”   The prosecutor herein used defendant's silence to impeach his testimony at trial that he had borrowed the car from Edwards.   Defendant's story was not frivolous.   In fact, it was inherently plausible.   His defense was that Edwards, a family friend who worked for Hertz, had lent him a Hertz rental car which Edwards said he had procured legitimately.   Much of the evidence supported defendant's story.   Edwards did work for Hertz.   He apparently had taken Hertz vehicles on several occasions without authorization but defendant was not aware of Edwards' lack of authorization to use these cars.   Although defendant had several prior convictions with which he was impeached, these priors could not be used to infer guilt.

Evidence supportive of the crucial specific intent element was very weak.   This was a close case in which the plausibility of defendant's story was crucial.   It was undisputed that defendant was in possession of the vehicle without Hertz's actual consent.   However, the specific intent element required the jury to find that defendant was aware that Edwards had no authority to authorize defendant's use of the vehicle.   The only evidence inconsistent with defendant's story was Ms. Milburn's vague testimony that she had seen the Toyota at the apartment complex earlier in the day and the two officers' testimony that defendant had originally claimed to have rented the Toyota at the airport.   This evidence was far from overwhelming and did not seriously undermine defendant's story.

The inference which the prosecutor invited the jury to draw from defendant's silence after being advised of his rights was that defendant was concealing the truth until he could fabricate a defense.   This error bolstered what was otherwise a very weak case.   On this record, we are unable to conclude beyond a reasonable doubt that the error did not contribute to the jury's verdict.   Therefore, the judgment must be reversed.   We address some of defendant's other contentions in order to provide guidance to the court on retrial.



 Defendant asserts that the trial court erred when it refused to instruct the jury as follows:  “If one takes personal property of another with the good faith belief that he has permission to take the property, he is not guilty of theft.   This is the case even if such good faith belief is unreasonable.   The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft.”   Instead the court gave CALJIC 4.35:  “An act committed in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime.  [¶] Thus a person is not guilty of [a] crime if he commits an act under an honest belief in the existence of certain facts and circumstances which, if true, would make such act lawful.”

“A criminal defendant is entitled, on request, to a[n] instruction ‘pinpointing’ the theory of his defense.”  (People v. Wharton (1991) 53 Cal.3d 522, 570, 280 Cal.Rptr. 631, 809 P.2d 290.)   Since the proffered instruction was a correct statement of the law and correctly pinpointed the defense offered at trial, the trial court was obligated to so instruct on defendant's request.   We do not agree with the Attorney General that the pattern jury instruction was “sufficient”.   The requested instruction directly tied the mistake of fact defense to the critical specific intent element.   This was of major importance to defendant's theory of the case.   Consequently, the court erred when it refused to give this instruction.



The judgment is reversed.


1.   This testimony of defendant was introduced only to show defendant's state of mind and not for its truth.

FOOTNOTE.   See footnote *, ante.

CAPACCIOLI, Acting Presiding Justice.

PREMO and ELIA, JJ., concur.

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