PEOPLE v. ALMANZA

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory Jess ALMANZA, Defendant and Appellant.

Cr. 35985.

Decided: May 18, 1981

Quin Denvir, State Public Defender and Leon F. Hitch, Acting Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

After trial by jury, appellant was found guilty of possession of phencyclidine (PCP) for sale, in violation of Health and Safety Code section 11378, subdivision (a). The contraband was found in appellant's residence pursuant to search warrant.   One of the arresting officers testified to admissions made by appellant regarding the contraband.   Appellant testified on direct examination that he did not make the statements attributed to him by the police officer.   Appellant contends that the trial court erred in (1) permitting cross-examination beyond the scope of his direct examination, (2) permitting comment on appellant's failure to testify as to his innocence, and (3) instructing the jury via CALJIC No. 2.62 that it could consider such failure to testify as creating an inference tantamount to guilt.1  We reject appellant's contentions and we affirm the judgment.

DISCUSSION:

The evidence and testimony to which appellant's three principal contentions relate was developed as follows.   In their case, the People called Deputy Sheriff Keller.   He testified that after advising appellant of his constitutional rights, Keller had a conversation with appellant.   He told appellant of information which he had received from a man and a woman and appellant replied thereto.   Although neither written nor mechanically recorded, Keller recalled the substance of appellant's reply.   Keller testified:  “The substance of it was that the drugs in his house were his.   I believe he used the word, ‘the dust,’ the dust in the house was his, that what I had related to him about what the male and female had told me was basically true, that he alone mostly controlled the sales of the dust, and that on occasion the female I talked with him about did do it, but only through his wanting her to, and other than what he told me then, he said he didn't want to say anymore.   He just wanted to have a go in court.”

Appellant testified on his own behalf.   His testimony was essentially that he had not made the statement attributed to him by Keller's testimony.   He also denied making a certain derogatory remark, not important here, to the officer.   On cross-examination and over appellant's objection, he was asked questions concerning matters pertaining to his statement testified to by Deputy Keller.   Appellant acknowledged that he lived at 514 Los Angeles Avenue (where the contraband was found).   Appellant further acknowledged, in accord with the People's evidence, that he was arrested while in a van, taken to his residence, to a police station and then to a sheriff's station, that Keller advised him of his constitutional rights, and asked questions of him regarding the contraband, that he knew what “dust” was, that he knew it by other terms including PCP and phencyclidine and that “pad” included a person's house.   Appellant denied giving Keller any information concerning drugs found at his residence.   He acknowledged saying to Keller they would “have a go at it in court”, and that he had said he did not want to make any statement.   Appellant further testified that upon inquiring as to his right to have a lawyer present, Keller answered that a lawyer's presence wasn't necessary.   Appellant acknowledged telling the Deputy which key opened his house.   Appellant testified that he had seen the contraband before.   However, appellant's objection was sustained when he was asked whether he had seen the contraband before his first or second court appearance.   According to appellant's argument, the genesis of the problem is the extent of the cross-examination allowed.   We therefore discuss that contention first.

1. The Scope of Cross-Examination

 The cross-examination of appellant was proper.   A defendant in a criminal case may not without his consent be examined under direct examination by the People.  (Evid.Code, § 772, subd. (d).)  But a defendant who testifies may be cross-examined as any other witness.  (People v. Zerillo (1950) 36 Cal.2d 222, 223 P.2d 223.   Cross-examination statutorily includes “․ any matter within the scope of the direct examination ․” (Evid.Code, § 773, subd. (a).)

Appellant's view is that the extent of permissible cross-examination of him was limited to the circumstances surrounding the making of his statement and could not include inquiry into the content or subject matter contained therein.   He claims this limited interpretation of the “scope” of the direct examination is required because he only denied making the statement and did not deny its truthfulness.   He relies on People v. Tealer (1975) 48 Cal.App.3d 598, 122 Cal.Rptr. 144.   Also, quoting language from Tealer, appellant claims that permitting the cross-examination set forth above was a violation of his privilege against self-incrimination and contrary to Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.   Neither assertion is correct.

 Griffin forbids comment on a non-testifying defendant's silence.   It does not, however, thus describe limits of cross-examination of a testifying defendant.   The extent of permissible cross-examination is determined by considerations of relevancy to factual matters expressly covered in, or impliedly raised by, the direct testimony of the witness.   In the case of a testifying defendant in a criminal matter, the privilege against self-incrimination has nothing to do with determining this relevancy or “scope” and forms no part of the definition of proper cross-examination.   If the inquiry on cross-examination is otherwise within the relevant scope of cross-examination, the privilege against self-incrimination cannot be used to limit cross-examination.   Except to the extent that the defendant cannot be made a general witness for the prosecution in order to present new matter, the privilege is fully waived by a testifying defendant.  (Jenkins v. Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86;  People v. Schader (1969) 71 Cal.2d 761, 80 Cal.Rptr. 1, 5–6, 457 P.2d 841, 845;  People v. Zerillo, supra, 36 Cal.2d 222, 223 P.2d 223;  People v. Gallagher (1893) 100 Cal. 466, 35 P. 80.)   That “relevancy-of-subject-matter-testified-to” rather than the privilege against self-incrimination has always been the correct guiding principle is evidenced by the language of the cases.   In People v. Gallagher, supra, Penal Code section 1323 then provided:  “A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself;  but if he offer himself as a witness he may be cross-examined by counsel for the people as to all matters about which he was examined in chief.”  (Id. at p. 475, 35 P. 80.)   Concerning the defendant who testified, the court there expressly held:  “By offering himself as a witness he waived all objection to his constitutional right to claim exception from giving testimony against himself upon all the matters about which he should volunteer to testify, and as to those matters he opened the door for the most searching investigation by cross-examination as to the accuracy of his testimony as fully as any other witness who might have given the same testimony.”  (Id. at p. 476, 35 P. 80.)   The court further explained that defendant's credibility could be tested even by cross-examination about a fact in issue, which tends to contradict a denial which he has made even though no question was asked of him on direct concerning such fact.  (People v. Gallagher, supra, at p. 475–476, 35 P. 80, at p. 83.)   In 1934 the California Constitution was changed to allow comment on a defendant's exercise of the privilege against self-incrimination.   That the rule of cross-examination was no different but rather the same as before and unaffected thereby was explained by People v. Zerillo, supra, 36 Cal.2d 222, 223 P.2d 223, which with approval cited and repeated the language of People v. Gallagher, supra.   Of the same code section (then Penal Code, § 1323) Zerillo states:

“This does not mean that the cross-examination must be confined to a mere categorical review of the matters, dates or times mentioned in the direct examination.  [Citations.]   It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on his direct examination.  [Citations.] ․ It is well settled that the section as it existed prior to 1935 did not have the effect of confining the cross-examination of an accused to any narrower limits than in the case of any other witness.  [Citations.]  ․ If a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide.  [Citations.]  ․ A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to those precise facts concerning which he testifies.   He can be cross-examined with respect to facts or denials which are necessarily implied from the testimony in chief, as well as with respect to facts which he expressly states.'  [Citations.]”  (People v. Zerillo, supra, at pp. 228–229, 223 P.2d 223.  [Citations omitted and emphasis added].)

The subsequent 1965 decision in Griffin, supra, made no change in this interpretation of permissible scope of cross-examination.   Waiver of the privilege against self-incrimination remained applicable and the scope remained wide.  (People v. Saddler (1979) 24 Cal.3d 671, 156 Cal.Rptr. 871, 597 P.2d 130;  People v. Schader, supra, 71 Cal.2d 761, 80 Cal.Rptr. 1;  People v. Ing (1967) 65 Cal.2d 603, 55 Cal.Rptr. 902, 422 P.2d 590.)

In People v. Schader, supra, 71 Cal.2d 761, 80 Cal.Rptr. 1, Justice Tobriner measured the scope of cross-examination expressly in the light of and against the strength of all the fundamental principles relative to the giving or the absence of a defendant's testimony in a criminal case.   He listed these fundamentals as:  the state and federal constitutional privileges against self incrimination;  the accusatorial rather than inquisitorial American system of criminal prosecution;  the requirement that the People must shoulder the entire load of their burden of proof without assistance from the defendant's silence or his compelled testimony and that when a defendant chooses to testify he should not be made a compelled general witness for the state and thus be put to a “cruel trilemma of self accusation, perjury or contempt.”   But he then explained:  “None of these fundamental principles, however, imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.”  Relying upon and approving the language of Zerillo, the opinion further says of cross-examination:  “It may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given by him on direct examination.”  [Emphasis added.]

 At bench appellant did not deny that he had a conversation with Deputy Keller about the subject matter testified to therein.   Inferentially, his direct testimony was that he did have such a conversation (later admitted on cross-examination) but not the particular one recited by Deputy Keller.   It was therefore proper, in order to amplify his testimony and to give definite meaning thereto, to ask what the substance was of his conversation.   Thus the cross-examination here was proper to determine true relevant facts which explained or refuted the inferences which could be drawn from appellant's denial.  (People v. Saddler, supra, 24 Cal.3d 671, 679, 156 Cal.Rptr. 871, 874–875, 597 P.2d 130, 133;  People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337;  People v. Schader, supra 71 Cal.2d 761, 80 Cal.Rptr. 1.)   Such cross-examination was not limited to a mere categorical and useless repetition, or the asking by rote for an admission or denial only as to the making of each of appellant's statements testified to by Deputy Keller.   The scope of proper cross-examination, while not easy to explain in a single rule applicable to all cases, is nonetheless more dependent upon the ideas of relevancy of the subject matter than upon limitations attempted by the brevity of defendant's testimony in the form of a single denial on direct.   Accordingly, when a defendant takes the stand and simply makes a general denial of the crime with which he is charged, the permissible scope of cross-examination remains very wide and allows inquiry into the truth of matters implicitly denied.  (People v. Ing, supra, 65 Cal.2d 603, 610, 55 Cal.Rptr. 902, 905, 422 P.2d 590.)

 Denial of the crime charged includes not only express categorical denial of the crime but also denials implicit in or inferable from the defendant's direct testimony.   This follows because the area of proper cross-examination depends also on “what matters of implied testimony flow by inference from defendant's express testimony on direct examination.”  (People v. James (1976) 56 Cal.App.3d 876, 888, 128 Cal.Rptr. 733 and also on the “effect” of such direct testimony, People v. Schader, supra.)   In People v. James, supra, the defendant testified on direct to an alibi for the time of the crime.   He offered nothing concerning his activities thereafter.   In holding cross-examination into his activities after the crime to show flight and consciousness of guilt proper, Justice Bernard Jefferson speaking for the court summarized the rule thus:

“A defendant in a criminal action may waive his privilege not to be called as a witness and not to testify by voluntarily taking the witness stand and testifying in his own behalf.   By so doing he waives his privilege against self-incrimination, but only to the extent that he may be cross-examined regarding any matter (1) to which he has testified expressly on direct examination, (2) to which he has testified impliedly on direct examination, and (3) that is relevant to impeach the defendant's credibility as a witness.  [Citations.]

“The major problem with respect to the scope of cross-examination of a defendant in a criminal action is that of determining what matters of implied testimony flow by inference from defendant's express testimony on direct examination.   The guiding principle that is derived from the decisional law is to the effect, that, if the facts testified to by a defendant on direct examination amount by inference, to a denial of the charge, he may then be cross-examined with respect to any matter tending to prove his guilt.   An implied denial of guilt is considered as testimony denying the existence of any evidence relevant on the issue of guilt, which makes cross-examination about the subject of any such evidence properly within the scope of the direct examination.  [Citations.   Emphasis added.]

“In Ing and [People v.] Thornton [11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267], this principle made permissible—cross-examination of defendant regarding prosecution evidence of noncharged crimes—evidence which the prosecution had introduced on the issue of identification under the relevancy theory of common scheme or plan.

“The express or implied general denial of guilt by a defendant on direct examination constitutes a waiver of his self-incrimination privilege to the extent of permitting cross-examination about facts indicating guilt even though evidence of such facts have not first been introduced by the prosecution in its case in chief ․ [Citations] ․”

At bench appellant's direct testimony was exceptionally brief.   It consisted only of the denial of the admission as related by Deputy Keller.   The brevity of appellant's direct testimony did not preclude inferences being drawn therefrom.   Significant is the fact that appellant denied only the statement as related by Keller's words.   Appellant did not testify that he did not make any kind of admission at all.   Reasonable minds could find there was implied testimony, which flowed by reasonable inference that some admission or acknowledgement was made by appellant concerning his residence, the possession of the contraband thereat, the arrest and the discussion at the police station.   Therefore, the trial court did not err when it allowed reasonable inquiry into the areas which touched on such matters.   If appellant's intention, by his cryptic and somewhat enigmatic direct testimony of denial, was to admit some conversation, it was proper to ask by cross-examination what was in truth said in that conversation.   If appellant intended to deny the truth of the charge against him or on the other hand intended only to deny admitting it to the Deputy Keller, the effect of his direct testimony—was the same, i. e.:  it implied that he did not commit the crime charged.   He was denying in effect the truth of the charges against him, not merely denying a statement.   Analyzed under the above language from People v. James, supra, 56 Cal.App.3d 876, 128 Cal.Rptr. 733, this inference permitted the extent of the cross-examination at bench.

In People v. Robinson (1964) 61 Cal.2d 373, 38 Cal.Rptr. 890, 392 P.2d 970, the People produced evidence of the extra-judicial confession of one of four defendants.   The defendant took the stand in his own defense.   His direct testimony was strictly limited to the claim that his extra-judicial confession was coerced.   Over objection the trial court allowed the prosecution to elicit the fact that, regardless of the voluntary or involuntary nature of the confession, the facts stated therein were true.   The court, speaking through Justice Peters, held that on the theory that the truth or falsity of the statement is a fact from which the jury might infer that it was voluntary, such cross-examination was proper.   Upon the reasoning of Robinson and James, we see no reason why the same inquiry into the truth of the matters is not proper in order to determine if an admission was in fact made.

In holding proper the cross-examination into the truth of the matters in a statement, the voluntariness of which is denied, Robinson did not foreclose the same inquiry into a statement the making of which is denied.   The latter issue was not before the court.

Notwithstanding the fact that a denial of the truth of the charge may be inferred under the construction explained in People v. James, supra, 56 Cal.App.3d 876, 128 Cal.Rptr. 733, and People v. Robinson, supra, 61 Cal.2d 373, 38 Cal.Rptr. 890, 392 P.2d 970, appellant, relying upon People v. Tealer, supra, 48 Cal.App.3d 598, 122 Cal.Rptr. 144, contends that his denial of the admission is no more of an implied denial of his guilt than is his plea of not guilty and therefore such direct testimony did not place in issue the truth of the statement wherein he admitted the elements of the offense so as to subject him to cross-examination on the matters set forth therein.  Tealer declared that the rule allowing cross-examination into matters inferred from defendant's direct testimony as stated in Schader applied only in cases of express denials of the crime charged.   Therefore, where the defendant does not expressly deny a charged crime but only denies making an extra-judicial statement—of confession or admission—there can be no cross-examination into the statement.   The opinion reasons that nothing factual is implied nor can be inferred—not even denial of commission of the crime.   The court said:

“We are satisfied that defendant's limited testimony was no more of an implied denial of the commission of the crime charged than his previous entry of a plea of not guilty.   Accordingly since he did not place in issue the truth of the alleged admission, the privilege against self-incrimination continued to serve ‘ “to prevent the prosecution from questioning the defendant upon the case generally, and in effect making him its own witness.” ’  (People v. Schader, supra, 71 Cal.2d at p. 770 [80 Cal.Rptr. 1, 457 P.2d 841], quoting from People v. Gallagher, 100 Cal. 466, 475 [35 P. 80].)”  (People v. Tealer, supra, 48 Cal.App.3d 598, 605–606, 122 Cal.Rptr. 144.)

Tealer sought also to distinguish People v. Robinson, supra, saying the denial in Robinson was of voluntariness as distinguished from the making of the statement.   But, as we have indicated above, this is a distinction that has no practical difference.   There is no valid reason why the truth of the facts in one statement is any more or any less a proper subject of inquiry than in the other.   In neither case is the defendant a “compelled” witness for the state.

We respectfully disagree with the observation in Tealer that a defendant's testimonial denial of an admission does not inferentially put into issue the truth of the charge any more than does a plea of not guilty.   A plea of not guilty is merely a formal answer to a charge.   It simply brings the charge to trial.   Neither the charge, the plea nor the trial is evidence.   On the other hand, a defendant who testifies thereby injects evidence into the trial.   Evidence must be weighed and considered.   The effect and inferences from evidence must also be considered.   Thus whether intended or not, when appellant denied the admission, such evidence implied or had the effect upon reasonable men and women of the jury that the reason appellant denied saying these things to Deputy Keller was because he denied they were true.

Of equal importance is the fact that appellant's testimonial denial of making the statement was not only evidence that he did not make the statement, but in addition to inferring denial of the charges, appellant's testimony implies that Deputy Keller was lying under oath.   The credibility of Keller was thus put in issue against the credibility of appellant.   Cross-examination upon the truth of the facts thus also served as a proper vehicle for impeachment of appellant's credibility.

 When a statement by way of confession or admission is attributed to a defendant and he denies making that statement, thereby placing the credibility of the police officer in question, it is permissible to cross-examine the defendant in order to demonstrate that he had the requisite knowledge of the matters attributed to him in the statement as being indicative that he did, in fact, make the statement.   Conversely, a defendant may show that he did not make the statement attributed to him by showing that he lacked the requisite knowledge of the facts.

In our view the denial of a making an admission is an inferential denial, an inference permitted by the teachings of Zerillo, supra, Robinson, supra, and James, supra.   As such it appears to us that the conclusion to the contrary in Tealer, for which no specific authority is cited, is in conflict with the intendments of Robinson, supra, and with the express language of James, supra, which we have recited and which we follow.

 When a defendant chooses to testify, the dangers and concerns about general “compelled cross-examination” must give way to the truth-seeking function and purpose of cross-examination.  (Jenkins v. Anderson, supra, (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86.)   In Jenkins the prosecution cross-examined and commented upon defendant's pre-arrest silence in an attempt to impeach defendant's credibility.   The United States Supreme Court held the examination and comment proper.   Although the matter there involved impeachment by examination and comment upon a prior silence, the case is significant because the decision rests on the recognition of a scope of cross-examination broader than that recognized in Tealer.   Jenkins expressly declares that a defendant who testifies waives all of his Fifth Amendment privileges.   Relative to permissible cross-examination of a defendant, the court expressly reasserted the continuing validity of the rule stated in Raffel v. United States (1926) 271 U.S. 494, 496–497, 46 S.Ct. 566, 567, 70 L.Ed. 1054.   In Raffel the court said:  “[T]he immunity from giving testimony is one which the defendant may waive by offering himself as a witness.  [Citations.]   When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue.  [Citations.   Emphasis added.]   He may be examined for the purpose of impeaching his credibility.”   With reference to the later decision of Griffin, the Jenkins court explains that the “Griffin” rule is inapplicable to the same problem of scope of cross-examination there present as at bench.   Irrespective of the Griffin arguments the court nonetheless upheld cross-examination into the reasons for silence in order to impeach a defendant.

At bench, the decision to have appellant testify was a tactical one requiring a judgmental decision whether it was best to leave Deputy Keller's testimony of admission unrefuted—leaving evidence of admission of guilt—or to deny it—with the attendant risk of impeachment by cross-examination as to its truth.   This may seem one of the “trilemma.”  (Murphy v. Waterfront Comm'n of New York (1964), 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678;  People v. Schader, supra, 71 Cal.2d 761, 770, 80 Cal.Rptr. 1, 457 P.2d 841.)   But a defendant cannot have all of the rules of criminal procedure his way.   Addressing this matter of hard choices and concerning the more fundamental situation of original silence, the court in Jenkins v. Anderson, supra, said:

“It can be argued that a person facing arrest will not remain silent if his failure to speak can later be used to impeach him.   But the Constitution does not forbid ‘every government imposed choice in the criminal process that has the effect of discouraging the exercise of Constitutional rights.’  [Citation.] The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.  [Citations.] ․ ‘We are unable to see that the rules that [an accused who] testified ․ must testify fully, adds in any substantial manner to the inescapable embarrassment which the accused must experience in determining whether he shall testify or not.’ ”  [Citation.   Emphasis added.]

The court quoted from McGoutha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711, that

“a defendant who speaks in his own defense cannot avoid testify fully.  (Emphasis added.) ․ It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out in cross-examination.”

Quoting Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) the court observes

“the prosecution here did no more than utilize the traditional truth testing devices of the adversary process․ [a]ttempted impeachment on cross-examination of a defendant, the practice at issue here, may enhance the reliability of the criminal process.   Use of such impeachment on cross-examination allows prosecutors to test the credibility of witnesses by asking them to explain prior inconsistent statements and acts.   A defendant may decide not to take the witness stand because of the risk of cross-examination.   But this is a choice of litigation tactics.   Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.’ ”  [Citations.   Emphasis added.]  (Jenkins v. Anderson, supra, 447 U.S. 231, 100 S.Ct. 2129, 65 L.Ed.2d 86.)

There is no logical, practical or policy reason presented to us why the truth of a prior admission, which is later denied, cannot likewise be inquired into.   The argument made by appellant here premised on the Tealer analysis and interpretation relies on reasoning and argument largely dissipated if not entirely rejected by Jenkins v. Anderson.   By the extent of the cross-examination at bench, the state was not allowed to improperly make the defendant its witness.   The facts were all initially developed by the People's case.   No “compelling portion” of the case came from cross-examination.  (See People v. Robinson, supra, 61 Cal.2d 373, 393, 38 Cal.Rptr. 890, 902, 392 P.2d 970, 982.)   The cross-examination served also to impeach the credibility of defendant.

2. Appellant's Failure to Deny or Explain Facts and the Jury Instruction (CALJIC NO. 2.62) and Prosecutor's Comment Thereon

We discuss these two contentions together.   In the light of our decision on the cross-examination, the instruction and comment were correct.2

 The deputy district attorney in argument said in part significant here:

“ ․ Mr. Almanza's testimony was that he did not make that statement to Deputy Keller.  [¶] “Mr. Almanza's testimony was not that he did not possess the substance that's been marked for identification.   Mr. Almanza's testimony was not that he did not possess that substance with the intent to sell.   Mr. Almanza's testimony was only that he did not make that statement to Deputy Keller.”

He thus argued that appellant had failed to explain or deny facts relevant and material and of which appellant could have testified.   The prosecutor then explained how the court would advise the jury in terms of CALJIC No. 2.62.   This instruction was correct and the comment warranted.   Appellant was properly cross-examined, but objected to answering the question concerning when he first saw the “dust.”   Moreover, he failed to deny that or explain why it was in his home although he had an opportunity to do so.   The cross-examination revealed an admission that he lived where the contraband was found and that he discussed the fact with Deputy Keller.   The instruction thus applied to facts well within the permissible scope of cross-examination.  (People v. Saddler, supra, 24 Cal.3d 671, 156 Cal.Rptr. 871, 597 P.2d 130.)

As we have explained above, there was no “Griffin error” as claimed by appellant.   This is not a case of a defendant seeking to assert the right of silence.   This is a case of a defendant who, after waiving the privilege against self-incrimination, attempts to limit cross-examination by claiming that cross-examination of his implied denial of guilt violated that very privilege waived.  “His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge may be the basis of adverse inference, and the jury may be so instructed․   His waiver is not partial;  having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.”  (Raffel v. United States, supra, 271 U.S. 494, 497, 46 S.Ct. 566, 568, 70 L.Ed. 1054.)

The judgment is affirmed.

I dissent.

The factual situation at bench is no different than that in People v. Tealer, 48 Cal.App.3d 598, 122 Cal.Rptr. 144, hg. denied.   In Tealer at p. 606, 122 Cal.Rptr. 144 the court concluded:

“We are satisfied that defendant's limited testimony was no more of an implied denial of the commission of the crime charged than his previous entry of a plea of not guilty.”

The trial court's instruction to the jury here treats appellant's specifically limited testimony as a denial of the crime charged and a complete waiver of his constitutional right to avoid self-incrimination.   The court announces to the jury in the first paragraph of its instruction which ends with the sentence “In this case defendant has elected to and has testified as to certain matters,” that “If you find that he failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.”

Without commenting further respecting the extent of the cross-examination or the proscription of Griffin on the comments of the district attorney, it seems to me each is inextricably involved with whether defendant by his limited appearance as a matter of law waived his right against self-incrimination and assumed an obligation to explain or deny any or all of the evidence against him which was otherwise introduced.   Based on the reasoning of Tealer, I cannot accept the conclusion that he did nor that the instruction so proffered was here correct.

I am also persuaded that the error was not harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

FOOTNOTES

1.   In addition to the three interrelated contentions, appellant also contends that the search warrant and its supporting affidavit used for the search resulting in appellant's arrest were not “introduced into evidence” and therefore his motion to suppress should have been granted.   He claims without the resulting evidence there is insufficient other evidence to demonstrate a valid arrest.   The contention is meritless.   It is based upon either a misunderstanding or a misinterpretation of the record.   We address that contention briefly.   It does not warrant extensive discussion.   The existence of the warrant and affidavit in support thereof was stipulated to.   They were part of the court's own record before it and of which the court could and did take judicial notice and read.   It read these documents without any objection by appellant.   And after so reading it ruled upon appellant's motion.   Appellant does not say, explain or otherwise demonstrate here in what aspect the affidavit or bench warrant was substantially insufficient.   This appellant must do before the burden shifts to the People to answer.   Appellant failed to meet his initial burden in this respect.  (Theodor v. Superior Court (1972) 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234;  People v. Pipkin (1971) 17 Cal.App.3d 190, 194, 94 Cal.Rptr. 595.)

2.   The instruction as given provided that:“It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify.   Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney.   In this case defendant has elected to and has testified as to certain matters.“If you find that he failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.“In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence.“The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of providing every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.”

BEACH, Associate Justice.

COMPTON, J., concurs.

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