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Court of Appeal, First District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Eric ZARR and Frederick Leland Ward, Defendants and Appellants.

No. A036210.

Decided: March 21, 1988

Jo Anne Keller, San Francisco, for defendant and appellant Edward zarr. Irene Kiebert, Deputy Public Defender, San Francisco, for defendant and appellant Frederick Ward. Christopher W. Grove, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendants were convicted of robbery and battery.   On appeal, the issues raised by defendants include improper comment by the prosecutor on defendant Zarr's post-arrest silence, failure to give jury instructions on lesser included offenses, ineffective assistance of counsel, and excessive restitution fines.

The judgments are affirmed.

Statement of Facts

While hitchhiking in Lake County on May 20, 1986, Christopher Weiss accepted a ride with defendants Edward Zarr and Frederick Ward.   Two women and four children were also in the car.   Weiss and other occupants of the car shared some beer and a marijuana cigarette.   The women and three of the children were later dropped off at a motel.

Weiss and defendants drove on.   Zarr asked Weiss if he had any money, and Weiss replied that he had 12 cents.

At this point, according to Weiss, Zarr pulled a knife, struck him in the face several times and demanded his wallet.   Weiss complied.   Ward drove the car off the main road.   After a short distance, the car ran out of gas.   Zarr told Weiss to get out of the car and again struck him.   Ward rifled Weiss's duffel bag;  then, he hit Weiss, and said, “You're lucky we don't kill you right now.”

Weiss lost consciousness.   Defendants rolled the car down a hill, then borrowed some gasoline from a nearby homeowner, and drove off.

Weiss reported the crime to the police.   Around midnight that same day, the police stopped defendants while they were driving.   Weiss was taken to where defendants were stopped.   Weiss identified the car and defendants.

At trial, Zarr admitted giving Weiss a ride, but denied that he or Ward had hit or robbed Weiss.   Zarr claimed Weiss walked off after the car had run out of gas.

Procedural History [[ ]]

DiscussionI. Zarr's ContentionsA. Improper comment on post-arrest silence

Zarr contends the prosecutor improperly commented on his post-arrest silence.   Zarr objects to the last two questions during the following exchange on cross-examination:

“Q. OK.   You were arrested at about midnight on, of [sic] that night, weren't you?

“A. Yes, sir.

“MR. LEVY:  Object.   It's beyond the scope of the direct examination?

“THE COURT:  If it pertains to possible statements.

“MR. RAPER:  It does, Your Honor.

“THE COURT:  I will permit it on the issue of credibility, believability.

“Q. (By Mr. Raper) You made a statement—you were transported to the jail by Officer Mateer, were you not?

“A. Yes, sir, if that's his name.   Officer—I'm not sure what his name was.

“Q. He was the only uniformed—whoops.   Actually, I'm—Yeah.   It doesn't really matter, It was Deputy Mateer.   And while you're in that car, you made a spontaneous statement to Deputy Mateer, didn't you?

“A. Yes, sir, I did.   I made several of them.

“Q. But you never told Deputy Mateer what you're telling us in court today?

“A. Not—

“MR. LEVY:  I object to the form of that question.

“THE COURT:  Sustained.   The form is improper.   It calls for a conclusion in the form present.

“Q. (By Mr. Raper) You never told Deputy Mateer that your car had ran out of gas up on Bruener Drive?

“MR. LEVY:  I object to the question.   I'd like to approach the bench.

“THE COURT:  Sustained.”

Zarr's trial counsel moved for a mistrial on the ground that the prosecutor's questions implied Zarr had failed to offer any explanation at the time of his arrest.   The trial court held a hearing outside the presence of the jury.   The prosecutor explained that he was trying to elicit a spontaneous statement Zarr made to the arresting officer, before a Miranda  2 warning was given.  (“You've got the wrong guys.   We didn't rob or beat anybody.”)

The trial court concluded Zarr's spontaneous statement was admissible, but that the prosecutor's questions had improperly drawn attention to Zarr's post-arrest silence.   The prosecutor decided not to pursue the matter.   The trial court refused to declare a mistrial.   Instead, it directed the jury to disregard the questions.

 The People argue the prosecutor's questioning was not improper because Zarr did not choose to remain silent;  he made the spontaneous statement.   A prosecutor may cross-examine a defendant on discrepancies between an account given at the time of arrest, and an explanation or alibi offered at trial.  (Citing People v. Hill (1980) 110 Cal.App.3d 937, 943, 168 Cal.Rptr. 272.)

The problem is that the questions implied Zarr omitted some of the facts he was now relating at trial.

The United States Supreme Court has held cross-examination on a defendant's post-arrest, but pre-Miranda silence does not violate the defendant's federal due process rights.  (Fletcher v. Weir (1982) 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490;  see also Greer v. Miller (June 26, 1987) ––– U.S. ––––, –––– – ––––, 107 S.Ct. 3102, 3107–3108, 97 L.Ed.2d 618.)   Thus under federal rules, a prosecutor may use a defendant's post-arrest silence to impeach the defendant, and whatever the purpose of the questions in this case, there would be no error.

However, one California decision has held such questioning does violate California's constitutional privilege against self-incrimination under article I, section 15.  (People v. Jacobs (1984) 158 Cal.App.3d 740, 750, 204 Cal.Rptr. 849.)   Further, the Jacobs court concluded the right to prevent impeachment through use of post-arrest silence survived the passage of Proposition 8, which does not affect “any existing statutory rule of evidence relating to privilege ․” (article I, section 28, subdivision (d)).  Jacobs found this right is a statutory rule under Evidence Code section 940.   (Ibid.) 3

The continuing validity of Jacobs is doubtful.   In People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307, the California Supreme Court rejected similar reasoning.   In May, the issue was the use of statements obtained in violation of Miranda, for purposes of impeachment.   Prior to the passage of Proposition 8, such use was prohibited by article I, section 15.  (People v. Disbrow (1976) 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272.)  May stated “Given the probable aim of the voters in adopting section 28(d), namely, to dispense with exclusionary rules derived solely from the state Constitution, it is not reasonably likely that the California voters intended to preserve, in form of a “statutory” privilege, a judicially created exclusionary rule expressly rejected by the United States Supreme Court under the federal Constitution.”  (People v. May, supra, 44 Cal.3d at p. 318, 243 Cal.Rptr. 369, 748 P.2d 307, emphasis in original.)

 Under the reasoning of May, Evidence Code section 940 does not preserve defendant's right to prevent cross-examination on his post-arrest, but pre-Miranda silence.   The federal rule set forth in Fletcher v. Weir, supra, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 controls.   Regardless of the purpose of the prosecutor's questions in this case or the prosecutor's intent when he asked them, no error resulted from them.

[[ ]]B.–C.

The judgments are affirmed.


2.   Miranda v. Arizona (1966) 384 U.S. 436, 467–473, 86 S.Ct. 1602, 1624–27, 16 L.Ed.2d 694.

3.   Evidence Code section 940 provides:  “To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.”

HOLMDAHL, Associate Justice.

RACANELLI, P.J., and ELKINGTON, J., concur.

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