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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Enrique Zapeda VILLALOBOS, Defendant and Appellant.

Crim. B013994.

Decided: May 21, 1986

Corinne S. Shulman and Shulman, Shulman & Siegel, Hydesville, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Andrew D. Amerson, Supervising Deputy Atty. Gen., Sharon R. Wooden, Deputy Atty. Gen., for plaintiff and respondent.

Appellant was convicted of first degree burglary of a Santa Barbara County residence (Pen.Code, § 459), receiving property stolen from a Kern County residence (Pen.Code, § 496), and felony unlawful use of a motor vehicle (Veh.Code, § 10851).   He appeals from a judgment sentencing him to prison for five years and four months.   We affirm.


The prosecution evidence showed that on December 21 or 22, 1984, a 1963 Plymouth automobile was stolen from the Glendale carport of its owner, Clyde Hurst.   When Hurst recovered it following appellant's arrest, a window had been broken, the trunk lock had been forced open, the ignition lock system was missing, and the locking gas cap had been pried loose.

On December 23, 1984, the residence of Peter Lewis in Bakersfield was burglarized.   Items belonging to Peter, John, and Lori Lewis were taken, including clothing, jewelry, a calculator, license plates, and a firearm.

The following day, December 24, 1984, about noon Raymond Kubaki observed the Hurst vehicle drive very slowly down Butterfly Lane in Montecito.   The car stopped across the street from Kubaki's residence, in front of the residence of Robert Jardine, who was not at home.   Kubaki saw two men exit the vehicle and walk to the bushes surrounding the Jardine home.   The Plymouth then left the area but returned a short time later with two men in the front seat.   One of the two men who earlier had exited the car returned and talked to the two men in the car.   By this time Kubaki had telephoned the sheriff's office and described his observations.   The man who had left the car and later returned to it left again, heading in the direction of the Jardine residence.

Shortly thereafter Deputy Sheriff Martin arrived at the scene.   He observed appellant and codefendant Mendoza approach the Hurst vehicle from the direction of the Jardine house.   The men entered the vehicle, appellant taking the driver's seat.   When he started the motor, he was apprehended by Martin and another deputy who arrived shortly after Martin.

Inspection of the Jardine house revealed a window ajar with pry marks under it, and a door partially open.   Later it was determined that the only missing item was a small tape recorder.

Appellant and codefendant Mendoza were arrested.   A few minutes later codefendants Garcia and Mendes were arrested as they left the “Bottle Shop,” located approximately one-half mile away from the Jardine residence.   Mendes was carrying the stolen Jardine tape recorder.

Inside the Hurst vehicle and in its trunk were a number of items belonging to Peter and John Lewis, including clothing, papers and the firearm.   Around appellant's neck was a gold chain with a $10 gold coin attached, which belonged to Lori Lewis.


Appellant, an alien “without papers,” who had once been deported to Mexico, testified that in December 1984 he worked in Los Angeles unloading trucks.   On December 23 he invited a co-worker and friend, Javier Hernandez, to go to Oxnard for a party.   Hernandez, who previously had borrowed appellant's automobile, declined the invitation but offered appellant the use of Hernandez' Plymouth for the trip.   Appellant then invited co-worker Mendoza to accompany him.   They drove to Oxnard, where appellant had worked for two months prior to his deportation, and while looking for appellant's friends, became drunk.   In attempting to return to Los Angeles, they headed in the wrong direction and ended up in Santa Barbara, where they slept in the car.   In the morning appellant drove the car looking for a secluded area in which Mendoza could relieve himself.   He found such an area in Montecito in front of the Jardine residence.   Mendoza left the car, and while he was walking back the deputies arrived.

Appellant denied knowing codefendants Mendes and Garcia.   They had pleaded guilty to burglarizing the Jardine house, and the jury was so advised.   Appellant also denied stealing the Hurst vehicle, committing the burglary of the Jardine house, and receiving any of the Lewis items.   He claimed that the ignition switch on the Plymouth was operable at all times he drove the vehicle, and that he did not put gasoline in it.   He said that he had purchased the Lori Lewis necklace in Tijuana about 15 days prior to his arrest.


Deputy Craig, the prosecutor's investigating officer, was asked on rebuttal:  “When is the first time you ever heard about Javier Hernandez?”   Appellant's counsel vigorously objected on the ground that the question improperly indicated that appellant had exercised his constitutional right to remain silent.   The objection was overruled on the ground that the testimony was admissible to show that the prosecution had not had time to locate and produce Hernandez.   The question was then restated:  “When did you first hear about Javier Hernandez?”   The answer was:  “When Mr. Villalobos testified here in this courtroom.”   The fact that appellant had not told the police about Hernandez was not mentioned in argument.



Permitting the prosecution investigator to testify on rebuttal that he had not heard of Javier Hernandez until appellant testified was an indirect way of saying that appellant after his arrest remained silent with regard to his testimonial assertion that the Plymouth involved had been lent to him, not stolen by him.   Was this permissible?

In United States v. Hale (1975) 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, it was held to be error in a federal court trial to permit such a question in a case where defendant had been admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and had chosen to remain silent.   The Supreme Court based its decision on the fact that silence of the defendant was ambiguous and not necessarily inconsistent with his trial testimony.   The court did not reach constitutional issues.

The following year Doyle v. Ohio (1976) 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, was decided.   Defendant had been arrested on a marijuana charge and, after having been given the Miranda admonitions, chose to remain silent.   At trial, defendant claimed that the informant had tried to sell marijuana to him and that the entire transaction was a “set up.”   The prosecutor was permitted to ask if he had remained silent with respect to this matter and why.   The Supreme Court reversed.   One of the grounds of the decision was that it would be fundamentally unfair to advise a suspect that he had a constitutional right to remain silent and then to use his silence against him at trial.

In 1980, the United States Supreme Court decided Jenkins v. Anderson (1980) 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86.   Two weeks after a homicide, defendant turned himself in to police, admitted the killing, and claimed self-defense.   At the trial he was questioned as to why he had remained silent for the two weeks.   The court held that this did not violate the Fifth Amendment because defendant had elected to testify and subject himself to cross-examination.   With regard to fundamental fairness under the Fourteenth Amendment, the court distinguished both the Hale and Doyle decisions.   In both of those cases the defendant had been given Miranda advice.   Here he had not.   Because he had not been told that he had a right to remain silent, there was no unfairness in using his silence to impeach his testimony that he had acted in self-defense.

The California Constitution in article I, section 28, subdivision (d), entitled “Right to Truth-in-Evidence,” provides that, with certain exceptions, relevant evidence shall not be excluded in criminal proceedings.   This has generally been held to limit constitutional restrictions on the admissiblity of evidence in criminal cases to the federal Constitution as interpreted by the federal courts.  (In re Lance W. (1985) 37 Cal.3d 873, 210 Cal.Rptr. 631, 694 P.2d 744.)   Inasmuch as there is no indication that appellant received Miranda warnings, the Fourteenth Amendment does not bar the use of his silence as impeachment of his testimony that the Hurst automobile had been lent to him by Hernandez.

Numerous California appellate decisions have disapproved introduction of evidence regarding defendant's silence in rebuttal of his trial testimony.   (People v. Andrews (1970) 14 Cal.App.3d 40, 92 Cal.Rptr. 49, and cases cited therein at p. 47, fn. 3;  People v. Gaines (1980) 103 Cal.App.3d 89, 162 Cal.Rptr. 827.)   Since the adoption of Proposition 8 and the decision of Jenkins v. Anderson, supra, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86, those decisions are no longer controlling.

II–IV ****

The judgment is affirmed.



FOOTNOTE.   See footnote *, ante.

WILLARD, Associate Justice.*** FN*** Assigned by the Chairperson of the Judicial Council.

STONE, P.J., and ABBE, J., concur.

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