P. v. Santana

Filed 7/22/19 P. v. Santana CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE SANTANA,
Defendant and Appellant.
H044594
(Monterey County
Super. Ct. No. SS161528A)
Defendant Jose Santana appeals from a judgment of conviction of first degree
burglary (Pen. Code, §§ 459, 460, subd. (a)).1 After a jury found defendant guilty as
charged, the trial court found true a prior strike conviction allegation under the Three
Strikes law (§ 1170.12), a prior serious felony enhancement allegation (§ 667,
subd. (a)(1)), and two prior prison term allegations (§ 667.5, subd. (b)). Defendant was
sentenced to a total prison term of 18 years.
On appeal, defendant argues that (1) a statement that he made to police was
erroneously admitted at trial in violation of Miranda v. Arizona (1966) 384 U.S. 436
(Miranda), (2) his trial counsel provided ineffective assistance in several instances,
(3) the cumulative prejudice of the alleged errors requires reversal, and (4) the case must
be remanded to allow the trial court to exercise its discretion to strike the five-year prior
1 All further statutory references are to the Penal Code unless otherwise stated.
Defendant has also filed a petition for a writ of habeas corpus, which we have considered
together with this appeal. We dispose of the writ by separate order.

-- 1 of 33 --

2
serious felony enhancement under section 1385, as recently amended. We agree with
only his fourth contention.
Accordingly, the judgment is reversed for the limited purposes of resentencing.
I
Evidence
On September 13, 2016, J.F. lived in the City of Salinas. On that date J.F. called
911 from his apartment, and a recording of the call was played for the jury at trial. The
911 call occurred at 11:01 a.m. and two seconds. Salinas police officers were dispatched
at 11:03 a.m. and 26 seconds. At 11:07 a.m. and 28 seconds, Officer Knowlton and
Officer Yoneda were on the scene and contacting defendant. Defendant was detained at
11:08 a.m. and 35 seconds.
When the 911 operator asked J.F. to state the emergency, J.F. said that the
apartment next door had been broken into and was being burglarizing and that someone
was waiting outside for them in a white truck. J.F. gave his address and indicated that it
was his neighbor to his left. J.F. said that “two guys” had gone inside and that the white
truck that was waiting for them had paper dealer plates, which he thought said C & J
Auto Sales. He repeated that two persons were inside the home and one person was in
the vehicle. J.F. indicated that he was hearing a lot of noise, which sounded like they
were “searching through everything” next door. When asked how the intruders got in,
J.F. said, “I just heard a loud noise, they broke something, I don’t know [whether] it was
the window or the door.” J.F. indicated that he could still hear noise coming from his
neighbor’s home, but the noise was now coming from the back.
When the 911 operator asked J.F. whether the car was still there, J.F. said that an
officer had already arrested the truck’s driver. The operator asked whether the officer
“got the correct vehicle,” and J.F. indicated that he had. When the operator tried to get
J.F. to look out the window and report whether anyone was running away, J.F. said, “I’d
rather they not recognize me.” He said that he was not watching anymore and that he

-- 2 of 33 --

3
was “really scared.” After the operator thanked J.F. for the call and indicated that they
were going to try to catch the burglars, J.F. reiterated that he was scared.
At trial, J.F. testified that he arrived home at approximately 10:15 a.m. on
September 13, 2016, and at approximately 11:00 a.m. he was making his lunch in his
kitchen, which was at the back of his home. When he looked out the window, he saw a
vehicle, which he described as a white truck, parked out on the street.
Although J.F. said that he had been “very scared at the time” he saw the vehicle,
he confirmed that the vehicle that he had seen was identical or “practically identical” to
the vehicle in the prosecutor’s photographic exhibits that were shown to him at trial.
Those photographs were of a white Chevy Tahoe. One view showed that the vehicle had
green paper dealer plates that said JC Auto Sales. The vehicle that J.F. had seen had
paper dealer plates; J.F. had not seen a license plate.
While on the witness stand, J.F. asked the prosecutor why he was putting up a
photograph of his residence. A short time later, J.F. told the prosecutor, “You’re
exposing me really bad here” and “I should have never came.” He subsequently said,
“All I need to do is work. I don’t need to be looking at stuff like that.”
When asked at trial whether he had seen any individuals in the vehicle that he had
seen outside his residence, J.F. answered, “[N]o, and I didn’t see very well.” When asked
how many people he had seen inside the vehicle, J.F. replied, “I didn’t see them.” J.F.
was asked, “Did you see anybody get out of the vehicle that’s depicted in 7, 8, and
People’s 14?” J.F. replied no.
At trial, J.F. recalled that he had called police because he was hearing a lot of
noise next door, and he indicated that he had been telling the truth when he called 911.
The prosecutor reminded J.F. that his 911 call had been recorded and again asked, “Prior
to hearing the noises next door, did you see anybody get out of the vehicle that’s in 7, 8,
14.” J.F. then said, “I only saw somebody go by on the sidewalk, but I didn’t see where
they came out of or anything or get off of or anything.” He claimed that he did not

-- 3 of 33 --

4
remember telling the 911 dispatcher that two people had gotten out of a truck and gone
toward his neighbor’s home. J.F. stated that he was “too afraid at the moment.” The
prosecutor asked, “[W]ere you too afraid at the moment or are you too afraid right now to
remember?” J.F. replied in part, “In the moment and now. I mean because I called the
police, now look at where I’m at. . . .”
The one-story apartments of J.F. and his adjoining neighbor were set back from
the street named in their street addresses. In front of their apartments were a walkway
and a driveway that went to the complex’s parking area and then beyond that was a fence
and a long, one-story building that fronted the street named in their street addresses. The
driveway was entered from a named side street that intersected with the street named in
their apartments’ street addresses. J.F.’s apartment was the end unit and adjacent to that
side street.
After reviewing the transcript of the 911 call at trial, J.F. indicated that he
remembered that two people got out of the truck, which was parked on the named side
street. J.F. indicated that they approached the adjoining apartment while the driver stayed
in the truck.
J.F. testified that he noticed that the vehicle had paper dealer plates from the first
moment he saw it. When asked where the two people who had gotten out of the truck
had gone, J.F. repeatedly responded that he had already answered that question. He
stated, “I mean just because I called the police, the mess I got myself into.”
J.F. finally indicated at trial that the two people who had exited the vehicle had
walked by his apartment on the driveway, toward his neighbor’s door. Less than 30
seconds later, J.F. heard knocking on his neighbor’s door. Within a few minutes. J.F.
heard a loud bang that sounded as if a door was being knocked down. J.F. initially
claimed at trial that he did not hear anything else after that. J.F. subsequently indicated
that he had heard noises in his neighbor’s apartment, which sounded like people were

-- 4 of 33 --

5
searching through it. While J.F. was hearing banging noises inside his neighbor’s home,
someone “stepped on the gas or accelerated three times.”
J.F. initially professed that after seeing the people get out of the vehicle, he did not
look out his window again and did not see police officers approaching or contacting the
driver. He claimed that his 911 statement that officers had arrested the driver was not
true.
J.F. subsequently indicated that he had seen the vehicle arrive, leave after
dropping two people off, and return and park in the same spot on the named side street
across from his apartment. J.F. testified, “It got there and left and then it came right back.
It was a matter of a minute.” J.F. confirmed that he had told the 911 dispatcher that the
vehicle was a white Ford Explorer. He agreed that he was nervous while he was on the
911 call.
J.F. also remembered that on the 911 call he was asked whether the police had the
correct vehicle and responded “Uh-hum,” and he testified that he did so “because it was
that vehicle, yes.” He affirmed that the person contacted and arrested by police was the
driver of that vehicle. J.F. confirmed that during the 911 call, he was telling the truth and
describing events close in time to their occurrence. At trial, J.F. agreed that during the
incident he was scared to be identified and concerned with his safety. He was trying not
to look out the window. But he testified that when responding to the 911 dispatcher,
“[he] did answer what [he] saw.” J.F. indicated that he was also being truthful when
answering Officer Aranda’s questions when he was interviewed within an hour or so of
his 911 cal1 on September 13, 2016.
At trial J.F. claimed, however, that he had never before seen defendant. He also
stated that he did not see the truck’s driver in court.
On September 13, 2016, Officer Yoneda with the City of Salinas was notified by
dispatch of a possible residential burglary in progress. The officer responded in a marked
patrol vehicle and arrived on the scene four minutes later, at approximately 11:07 a.m.

-- 5 of 33 --

6
He saw Officer Knowlton driving toward “a white Chevy Tahoe with green paper plates.”
The plates said “JC Auto Sales.” The vehicle was parked against the curb across the
street from J.F.’s apartment. The front of the vehicle was facing the intersection. Officer
Knowlton made contact with a person in the driver’s seat, who was identified at trial as
defendant.
Officer Yoneda’s body camera was operating as he arrived at the scene, and the
recording captured Officer Knowlton’s initial interaction with defendant, who was sitting
in the vehicle. The part of the recording showing that interaction was played for the jury.
Knowlton made a gesture with his hands indicating that defendant should put his
hands up. Defendant put his hands up. Officer Knowlton opened the driver’s door, told
him to take off his seatbelt, and had defendant place his hands behind his back. While
defendant was still seated in the driver’s seat and while Officer Knowlton appeared to be
in the process of placing defendant in handcuffs behind his back, the officer twice asked
defendant where his friends were. Defendant did not seem surprised by the question.
Defendant responded that he did not have any friends.
Officer Knowlton asked defendant whether he had any weapons on him and then
removed defendant from the vehicle and placed him in the back of Officer Yoneda’s
patrol vehicle.
Officer Yoneda testified that it took several minutes to recontact the reporting
party and determine the residence being burglarized. A perimeter was set up around the
residence because of the possibility that the suspects were still inside. A team of officers
was assembled to go in and the officers entered through a door that was standing open.
Froylan Aranda, a Salinas police officer, received a dispatch regarding an
in-progress burglary at approximately 11:03 a.m. on September 13, 2016. When he
arrived, Officer Aranda saw defendant, who was being detained. Officer Aranda helped
secure the perimeter of the residence. According to the officer, police treat a burglary as
an armed situation since the burglars may have weapons.

-- 6 of 33 --

7
After no one responded to multiple police demands to come out with hands up,
police officers entered the residence. Each room of the apartment was “cleared” for any
individuals that might have been there. The interior had been ransacked. A door had
been broken, cabinets had been opened, and multiple items had been thrown on the floor.
No one was located inside.
Jacqueline Bohn, a Salinas police officer, responded to a dispatch of a possible
residential burglary in progress at approximately 11:03 on September 13, 2016. When
she arrived, the officer saw an individual sitting in the back of a patrol vehicle and a
parked, white sport utility vehicle (SUV). It was discovered that the SUV’s paper plates
concealed actual license plates. She searched the vehicle and found an electronic
scanner, which scanned police and fire channels, in a cup holder in the vehicle’s center
console. It was “facing the driver [if a driver had been sitting there] at a slant.” The
scanner was “on,” and she “could hear officers speaking on [the Salinas Police
Department’s] Channel One radio,” the channel on which she had received the dispatch
and which was being used by the officers at the scene.
Officer Aranda attempted to contact the reporting party, J.F., at his residence and
obtain a statement from him. J.F. appeared scared, looked around, and refused to speak
to the officer. He did not want to identify the suspect driver in an in-field showup.
Consequently, Officer Aranda did not read him a standard admonishment that asks a
witness who participates in an in-field showup to tell the police whether the witness
recognizes the suspect or does not recognize the suspect. The admonishment also
cautions the witness not to be influenced by the fact the suspect is in handcuffs or in
custody.
While at work on September 13, 2016, J.G. received a call from and spoke with
Officer Aranda, who told him that his home, a one-bedroom apartment, had been broken
into. After J.G. drove home, the officer spoke with him. J.G. had been asked whether he

-- 7 of 33 --

8
recognized the man in the patrol vehicle, but he had not. At trial, J.G. stated that he had
never seen defendant before.
After Officer Aranda spoke to the burglary victim and while they were standing
near the white Chevy Tahoe, the officer happened to see J.F. and his family walking on
the sidewalk toward home and attempted to speak with him again. At that point,
defendant was still in the backseat of the patrol vehicle, which was parked across the
street from where J.F. was standing.
Officer Aranda asked J.F. whether he was sure that he did not want to talk with the
officer. J.F. told the officer that he did not want to speak “out in the open” or “be
involved.” Officer Aranda asked J.F. whether he could make an identification. J.F. made
a quick eye movement, “a sign with his eyes” and “point[ed] with his eyes” toward
defendant and said “that’s him.” When Officer Aranda asked him to go on record, J.F.
said no. J.F. did not want to make an identification because he was scared and did not
want the driver to know who he was. J.F. walked away with his family. The standard
showup admonishment was never read to J.F.
Officer Aranda and the burglary victim then went into his apartment to ascertain
what was missing. J.G. discovered that the back door to his apartment had been forced
open, the locks had been broken, and the door frame had been damaged. His drawers had
been rummaged though, and everything was on the ground. J.G. had a collection of
approximately 30 pairs of sneakers, and the case that had held the shoe collection was
empty. His Adidas Yeezy shoes by Kanye West, which were part of that collection and
for which he had paid $800, were missing. Some of his belongings were in garbage bags
“ready to go.” J.G. did not find his PlayStation 4, the “newest one out,” for which he had
paid $400.
Afterward, Officer Aranda contacted the reporting party for a third time. J.F.
agreed to speak with Officer Aranda at the back of his home, where nobody could see
them. J.F. provided a more detailed description of the two men whom he had seen

-- 8 of 33 --

9
leaving the vehicle and walking past his residence. He said that one man was wearing a
gray hoodie and the other man was wearing a black hoodie. Their hoods were covering
their heads, and J.F. was unable to clearly see their faces. Approximately a minute after
the two men got out of the vehicle, J.F. heard knocking at his neighbor’s door. J.F. told
Officer Aranda that the driver in the white SUV had been looking in the direction of his
neighbor’s home.
Both the People and defendant rested their cases. Defendant presented no
evidence.
II
Discussion
A. Failure to give Miranda Warnings Before Initial Question to Defendant
1. Background
Before trial, defendant filed a motion in limine to exclude defendant’s statements
on the ground that they were obtained in violation of Miranda. An evidentiary hearing
was held. The following evidence was adduced:
Officer Yoneda received a dispatch regarding a possible residential burglary in
progress at approximately 11:03 a.m. on September 13, 2016. The reporting party had
said that two subjects had gone into the residence and one was waiting in a vehicle,
originally described as a white truck but later described as “a white SUV of some type.”
Officer Yoneda arrived at the scene at approximately 11:07 a.m.
Officer Knowlton had arrived just ahead of Officer Yoneda and positioned his
vehicle in front of a white Chevy Tahoe, which was parked at the curb. Officer Yoneda
saw that the white Chevy Tahoe, an SUV, had “green paper plates.”
At the hearing, Officer Yoneda described the safety concerns arising from the
situation of a burglary in progress. He stated that Salinas had “a lot of gang crimes and
many of the burglaries, robberies, [and other] crimes are committed by gang members”
and that police officers “know that gang members often possess weapons.” He explained

-- 9 of 33 --

10
that when responding to a burglary, it was possible that people were at home and the
crime was “a home invasion.” He indicated that persons who commit home invasions are
usually armed. In addition, since there were multiple suspects, the officers had to
consider where the suspects could hide, the possibility of an ambush, and the possibility
that the suspects might “run into an adjacent residence” where people were present.
At the time of the incident, Officer Yoneda saw Officer Knowlton get out of his
vehicle and approach a person who was sitting in the driver’s seat of the white Chevy
Tahoe, a person whom Officer Yoneda identified in court as defendant. Officer Yoneda
also got out of his vehicle and approached the white Chevy Tahoe. Because Officer
Knowlton’s vehicle was positioned in front of the white Chevy Tahoe, the white Chevy
Tahoe could not go forward. Officer Yoneda’s vehicle faced the white Chevy Tahoe and
blocked a lane of traffic.
Officer Yoneda covered Officer Knowlton and looked into the back of the SUV to
make sure that no one else who might be a threat was inside the vehicle. At that point
Officer Yoneda did not know the layout of the home being burglarized or whether there
were any residents inside. The reporting party had indicated that three persons were
involved in the suspected residential burglary in progress.
Officer Knowlton indicated to defendant that the officer wanted him to put up his
hands, and defendant did so. Officer Knowlton asked defendant to take off his seatbelt
and to put his other hand behind his back. Officer Yoneda reported, “We’ve got one
detained.” Within seconds of approaching defendant in the vehicle, and at about the time
Officer Knowlton was placing him in handcuffs, Officer Knowlton asked defendant,
“Where your friends at?” Defendant responded, “I don’t have any friends.” After asking
Officer Yoneda to move his vehicle, Officer Knowlton asked defendant, “Do you have
any weapons on you?” Defendant said no.
When Officer Knowlton asked defendant about his friends, they were in public
and Officers Knowlton and Yoneda were the only officers present. Officer Yoneda

-- 10 of 33 --

11
described the officers’ demeanor as “fairly friendly” in case there had been a mistake and
there was not a residential burglary in progress.
The prosecutor argued that the limited questioning was aimed at safety and was
constitutionally permissible as part of “investigatory questioning” or under the public
safety exception to Miranda. Defense counsel argued that defendant was in custody for
Miranda purposes when an officer asked about his friends because defendant’s freedom
of action had been significantly curtailed in that he was partially blocked in by police
vehicles, the officer had approached and told him to put up his hands, and the officer had
just placed him, or was in the process of placing him, in handcuffs when the question was
asked. He argued that the safety exception to Miranda did not apply because there was
no indication that the reported crime involved any weapons.
The trial court found it significant that defendant had been detained rather than
arrested, that the question about defendant’s friends was asked only seconds into the
detention, the question was asked in public, the questioning had been limited, the
officer’s demeanor was not aggressive, and defendant’s vehicle was blocked in only one
direction. The court concluded that the limited questioning was not part of a custodial
interrogation and that if it had found defendant to be in custody, the public safety
exception to Miranda would have applied.
2. Governing Law
“Whether a defendant was in custody for Miranda purposes is a mixed question of
law and fact. [Citation.] ‘When reviewing a trial court’s determination that a defendant
did not undergo custodial interrogation,’ an appellate court accepts the trial court’s
findings of historical fact if supported by substantial evidence, but independently
determines ‘whether, given those circumstances,’ the interrogation was custodial.
[Citation.]” (People v. Kopatz (2015) 61 Cal.4th 62, 80.)

-- 11 of 33 --

12
In Miranda, the United States Supreme Court “adopted a set of prophylactic
measures designed to safeguard the constitutional guarantee against self-incrimination.”2
(J.D.B. v. North Carolina (2011) 564 U.S. 261, 269 (J.D.B.).) “[I]f a suspect makes a
statement during custodial interrogation, the burden is on the Government to show, as a
‘prerequisit[e]’ to the statement’s admissibility as evidence in the Government’s case in
chief, that the defendant ‘voluntarily, knowingly and intelligently’ waived his rights.
[Citations.]” (Id. at pp. 269-270, fn. omitted.) “By its very nature, custodial police
interrogation entails ‘inherently compelling pressures.’ Miranda, 384 U.S., at 467.”
(Id. at p. 269.) “Only those interrogations that occur while a suspect is in police
custody . . . ‘heighte[n] the risk’ that statements obtained are not the product of the
suspect’s free choice. [Citation.]” (Id. at pp. 268-269.)
“[W]hether a suspect is ‘in custody’ [for purposes of Miranda] is an objective
inquiry.” (J.D.B., supra, 564 U.S. at p. 270.) “[T]he ‘subjective views harbored by
either the interrogating officers or the person being questioned’ are irrelevant.
[Citation.]” (Id. at p. 271.) Miranda defined “custodial interrogation” as “questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” (Miranda, supra,
384 U.S. at p. 444, fn. omitted.)
For Miranda purposes, “ ‘custody’ is a term of art that specifies circumstances that
are thought generally to present a serious danger of coercion.” (Howes v. Fields (2012)
565 U.S. 499, 508-509 (Fields).) “In determining whether an individual was in custody,
2 Miranda requires four warnings, including that “a suspect ‘has the right to
remain silent, that anything he says can be used against him in a court of law, that he has
the right to the presence of an attorney, and that if he cannot afford an attorney one will
be appointed for him prior to any questioning if he so desires.’ [Citation.]” (Dickerson v.
United States (2000) 530 U.S. 428, 435.) The United States Supreme Court “has not
dictated the words in which the essential information must be conveyed. [Citations.]”
(Florida v. Powell (2010) 559 U.S. 50, 60.) It is enough if the warnings given reasonably
convey such Miranda rights to a suspect. (Ibid.)

-- 12 of 33 --

13
a court must examine all of the circumstances surrounding the interrogation . . . .”
(Stansbury v. California (1994) 511 U.S. 318, 322 (per curiam).) “[T]he initial step is to
ascertain whether . . . a ‘reasonable person [would] have felt he or she was not at liberty
to terminate the interrogation and leave.’ [Citation.]” (Fields, supra, at p. 509.) Other
“[r]elevant factors include the location of the questioning [citation], its duration
[citation], statements made during the interview [citations], the presence or absence of
physical restraints during the questioning [citation], and the release of the interviewee at
the end of the questioning [citation].” (Ibid.)
The Supreme Court has explained: “To determine whether a suspect was in
Miranda custody we have asked whether ‘there is a “formal arrest or restraint on freedom
of movement” of the degree associated with a formal arrest.’ [Citations.] This test . . . is
satisfied by all forms of incarceration. [The court’s] cases make clear, however, that the
freedom-of-movement test identifies only a necessary and not a sufficient condition for
Miranda custody. [The court has] declined to accord it ‘talismanic power,’ because
Miranda is to be enforced ‘only in those types of situations in which the concerns that
powered the decision are implicated.’ [Citation.] Thus, the temporary and relatively
nonthreatening detention involved in a traffic stop or Terry stop . . . does not constitute
Miranda custody. [Citations.]”3 (Maryland v. Shatzer (2010) 559 U.S. 98, 112-113
3 Traditionally, handcuffs have been viewed “as a hallmark of a formal arrest.
[Citations.]” (United States v. Newton (2d Cir. 2004) 369 F.3d 659, 676; see United
States v Bravo (9th Cir. 2002) 295 F.3d 1002, 1010 [“handcuffing is a substantial factor
in determining whether an individual has been arrested”].) But a well-respected treatise
has explained: “The years since [United States v. Hensley (1985) 469 U.S. 221] have
‘witnessed a multifaced expansion of Terry,’ especially a ‘trend granting officers greater
latitude in using force in order to “neutralize” potentially dangerous suspects during an
investigatory detention.’ ‘For better or for worse,’ as yet another federal court expressed
it, ‘the trend has led to the permitting of the use of handcuffs, the placing of suspects in
police cruisers, the drawing of weapons and other measures of force more traditionally
associated with arrest than with investigatory detention.’ ” (4 LaFave, Search and
Seizure (5th ed. 2012) § 9.2(d), p. 401, fns. omitted.) Defendant does not challenge his

-- 13 of 33 --

14
[suspect’s release back into the general prison population where he was serving an
unrelated sentence constitutes a break in Miranda custody].)
For example, in Berkemer v. McCarty (1984) 468 U.S. 420 (Berkemer), the United
States Supreme Court concluded that “the roadside questioning of a motorist detained
pursuant to a routine traffic stop” does not constitute custodial interrogation for Miranda
purposes. (Id. at pp. 435-436.) The court acknowledged that “few motorists would feel
free either to disobey a [police officer’s] directive to pull over or to leave the scene of a
traffic stop without being told they might do so.” (Id. at p. 436, fn. omitted.) The court
noted that routine traffic stops are typically temporary, brief, and public to some degree.
(Id. at pp. 436-438.) The court analogized ordinary traffic stops to investigative Terry
detentions. (Id. at p. 439.) It reasoned: “The comparatively nonthreatening character of
[investigative] detentions of this sort explains the absence of any suggestion in our
opinions that Terry stops are subject to the dictates of Miranda. The similarly
noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily
detained pursuant to such stops are not “in custody” for the purposes of Miranda.” (Id. at
p. 440.)
The Supreme Court was not concerned that its holding in Berkemer would
engender “widespread abuse” by police. (Berkemer, supra, 468 U.S. at p. 440.) The
court stated: “It is settled that the safeguards prescribed by Miranda become applicable
as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal
arrest.’ California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam). If a motorist
who has been detained pursuant to a traffic stop thereafter is subjected to treatment that
renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda. [Citation.]” (Ibid.) But the court declined to
establish a bright-line “rule that Miranda applies to all traffic stops or a rule that a suspect
seizure under the Fourth Amendment, on the ground that the seizure was an unreasonable
investigative detention or an unlawful arrest without probable cause.

-- 14 of 33 --

15
need not be advised of his rights until he is formally placed under arrest.” (Id. at p. 441.)
It recognized that under its holding, “the police and lower courts will continue
occasionally to have difficulty deciding exactly when a suspect has been taken into
custody [for Miranda purposes].” (Ibid.)
Even if a suspect is subjected to restraints comparable to those associated with
formal arrest and considered in custody for purposes of Miranda, the United States
Supreme Court has recognized a public safety exception to the Miranda requirements. In
New York v. Quarles (1984) 467 U.S. 649 (Quarles), the United States Supreme Court
held that “there is a ‘public safety’ exception to the requirement that Miranda warnings
be given before a suspect’s answers may be admitted into evidence, and that the
availability of that exception does not depend upon the motivation of the individual
officers involved.” (Id. at pp. 655-656.) The court made clear that “the doctrinal
underpinnings of Miranda” do not “require that it be applied in all its rigor to a situation
in which police officers ask questions reasonably prompted by a concern for the public
safety.” (Id. at p. 656.)
In Quarles, the police apprehended Quarles, a suspected rapist who was believed
to be carrying a gun, in a supermarket. (Quarles, supra, 467 U.S. at pp. 651-652.) After
an officer frisked Quarles, discovered that he was wearing an empty shoulder holster, and
handcuffed him, the officer asked him where the gun was. (Id. at p. 652.) Quarles
“nodded in the direction of some empty cartons and responded, ‘the gun is over there.’ ”
(Ibid.) The officer “retrieved a loaded .38-caliber revolver from one of the cartons,
formally placed [Quarles] under arrest, and read him his Miranda rights from a printed
card.” (Ibid.) The United States Supreme Court found that Quarles was in police
custody for Miranda purposes because he “was surrounded by at least four police officers
and was handcuffed when the questioning at issue took place.” (Id. at p. 655.)
Although the Supreme Court agreed that Quarles was in police custody when he
was asked about the gun, the court concluded that “overriding considerations of public

-- 15 of 33 --

16
safety justif[ied] the officer’s failure to provide Miranda warnings before he asked
questions devoted to locating the abandoned weapon.” (Quarles, supra, 467 U.S. at
p. 651.) The court stated: “The police in this case, in the very act of apprehending a
suspect, were confronted with the immediate necessity of ascertaining the whereabouts of
a gun which they had every reason to believe the suspect had just removed from his
empty holster and discarded in the supermarket. So long as the gun was concealed
somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed
more than one danger to the public safety: an accomplice might make use of it [or] a
customer or employee might later come upon it.” (Id. at p. 657.) It made clear that “the
need for answers to questions in a situation posing a threat to the public safety outweighs
the need for the prophylactic rule protecting the Fifth Amendment’s privilege against
self-incrimination.” (Ibid.) The court believed that “police officers can and will
distinguish almost instinctively between questions necessary to secure their own safety or
the safety of the public and questions designed solely to elicit testimonial evidence from a
suspect.” (Id. at pp. 658-659.)
In Berkemer, the United States Supreme Court described Quarles as holding that
“when the police arrest a suspect under circumstances presenting an imminent danger to
the public safety, they may without informing him of his constitutional rights ask
questions essential to elicit information necessary to neutralize the threat to the public.”
(Berkemer, supra, 468 U.S. at p. 429, fn. 10.)
3. Analysis
In this case, assuming arguendo that defendant was in custody for Miranda
purposes because he was being handcuffed, or had just been handcuffed, when he was
asked by Officer Knowlton where his friends were, the public safety exception to
Miranda applied.
The police officers were responding to a report that a residential burglary was in
progress. The reporting party had indicated that three persons were involved in the

-- 16 of 33 --

17
burglary. The driver was waiting in a white SUV and two others had gone into a
residence. When Officers Knowlton and Yoneda arrived at the scene, defendant was
sitting in the driver’s seat of the white Chevy Tahoe and the two other suspects were
unaccounted for. Given the fluid and ongoing situation, it was imperative that the police
immediately locate the two other burglary suspects, possibly still inside the residence, for
the safety of the public as well as the responding officers. It was very possible that the
suspect burglars had weapons for the reasons Officer Yoneda stated at the hearing and
that persons in the vicinity might come in harm’s way if the suspects tried to avoid
apprehension or were surprised by the officers or others.
We do not agree with defendant that the lack of specific information that the
burglary suspects had weapons meant that the public safety exception to Miranda did not
apply. Police officers can consider their experience and training in determining whether
burglary suspects in a residential burglary reportedly in progress pose a potential danger
to the public and the officers. It was reasonable to conclude that the officers needed to
know the whereabouts of the two burglary suspects at large because of the danger they
posed.
The language of Quarles applies here: “[T]he need for answers to questions in a
situation posing a threat to the public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against self-incrimination. We decline to
place officers . . . in the untenable position of having to consider, often in a matter of
seconds, whether it best serves society for them to ask the necessary questions without
the Miranda warnings” (Quarles, supra, 467 U.S. at p. 657) or whether they should take
the time to administer Miranda warnings and possibly increase the risks to themselves
and others given the exigency. The Supreme Court believed the public safety exception
would not “complicat[e] the thought processes and the on-the-scene judgments of police
officers” (id. at p. 659) but rather would “simply free them to follow their legitimate

-- 17 of 33 --

18
instincts when confronting situations presenting a danger to the public safety.” (Ibid.,
fn. omitted.)
B. Alleged Ineffective Assistance of Counsel
Defendant claims that there were three instances of ineffective assistance of
counsel at trial. One instance involved a question posed by defense counsel during his
cross-examination of Officer Aranda, who had responded to the scene and spoken to J.F.
Two instances involved defense counsel’s failure to object to comments made by the
prosecutor during closing argument.
1. Governing Law
The standard for evaluating a claim of ineffective assistance of counsel is well
established. It requires a two-prong showing of deficient performance and resulting
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “Failure to
make the required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim.” (Id. at p. 700.)
As to deficient performance, a defendant “must show that counsel’s representation
fell below an objective standard of reasonableness” measured against “prevailing
professional norms.” (Strickland, supra, 466 U.S. at p. 688.) “Judicial scrutiny of
counsel’s performance must be highly deferential.” (Id. at p. 689.) “[E]very effort” must
“be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.” (Ibid.) “[A] court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” (Ibid.)
The prejudice prong requires a defendant to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)

-- 18 of 33 --

19
“In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel [had] acted differently.
[Citations.] Instead, Strickland asks whether it is ‘reasonably likely’ the result would
have been different. [Citation.] This does not require a showing that counsel’s actions
‘more likely than not altered the outcome,’ but the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and matters ‘only in
the rarest case.’ [Citation.] The likelihood of a different result must be substantial, not
just conceivable. [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 111-112
(Harrington).)
“[A] court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed.” (Strickland, supra, 466 U.S.
at p. 697.)
2. Questions Posed to Officer Aranda on Cross-examination
a. Background
The trial court ruled that the prosecution could question Officer Aranda on direct
examination about J.F.’s statements concerning (1) the two people that he had seen
exiting the vehicle and his description of them, (2) the direction in which J.F. had seen
the driver looking, and (3) the time between J.F.’s seeing the two people getting out of
the vehicle and his hearing a knock on the door of his neighbor. The trial court indicated
that in connection with the second area of direct examination, defense counsel would be
permitted to cross-examine the officer regarding J.F.’s “not being able to look over [at the
driver] too much” and J.F.’s “inability to pick someone out of the lineup identification
[sic].”

-- 19 of 33 --

20
On cross-examination, defense counsel asked Officer Aranda whether he had read
an admonishment regarding an in-field showup to J.F. Officer Aranda replied, “No,
because he never wanted to identify the defendant on that day.” Defense counsel then
asked, “And he never did identify the defendant in the showup, correct?” The officer
answered, “[P]ersonally, he did not, no.”
On redirect examination, the prosecutor asked Officer Aranda what he had meant
by his answer. Defense counsel objected on hearsay and lack of foundation grounds.
The objection was overruled. The officer testified, “He stated it was the person we had in
custody.” The court asked, “To you?” The officer replied yes.
Outside the presence of the jurors, the prosecutor indicated that he wished to ask
Officer Aranda what he meant when he used the word “personally.” Defense counsel
complained that the question was “a back door way of getting in what would be
objectionable evidence” and that the prosecution had not laid a foundation for an actual
identification of defendant by J.F. The prosecutor argued that defense counsel’s
identification question encompassed the officer’s “whole contact” with J.F. and his use of
the word “never” suggested that J.F. had never identified defendant, which the prosecutor
asserted was “patently false.”
The court ruled that the prosecutor would be allowed “to clarify that last point,
move in and move out very quickly if you can in terms of what was said by the witness in
terms of any prior identification, . . . in response to the question that [defense counsel]
had asked that witness.”
On further redirect examination of Officer Aranda, the prosecutor elicited
testimony regarding J.F.’s informal identification of defendant, who was sitting in a
patrol car across the street, by a glance and the statement “that’s him.”
b. Analysis
Defendant argues that defense counsel’s cross-examination question to Officer
Aranda (“And he never did identify the defendant in the showup, correct?”) constituted

-- 20 of 33 --

21
ineffective assistance of counsel because counsel already knew that J.F. had identified
him on the day of the burglary, although not in a formal, in-field showup. He suggests
that if his counsel had not asked that question, “there would have been no evidence
adduced that [he] was the specific driver of the white truck who had dropped off the two
suspected burglars.” He contends that “[w]ithout evidence that it was not only the same
truck, but [also] the same driver, that [J.F.] saw that day, at least one rational juror would
have entertained the possibility that [he] was not driving the white truck when the two
suspects were dropped off.” Defendant asserts that there could be no tactical justification
or satisfactory explanation for counsel’s asking the showup question, which opened the
door to the admission of “damaging testimony.” Defendant argues that the prejudice
prong is satisfied because “[a]lthough it was undisputed that the same white truck had
dropped off the two people, and then parked across the street where it was approached by
officers, it was not clear that the same driver had dropped off the two suspects” until
Officer Aranda testified about J.F.’s identification of defendant at the scene.
“ ‘ “It is well settled that when a witness is questioned on cross-examination as to
matters relevant to the subject of the direct examination but not elicited on that
examination, he [or she] may be examined on redirect as to such new matter.” ’
[Citation.] ‘ “The extent of the redirect examination of a witness is largely within the
discretion of the trial court.” ’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863,
921.)
“Cross-examination is always a risky process—even experienced counsel
conducting a brilliant cross-examination might inadvertently elicit damaging disclosures,
a risk inherent in the tactical decision to conduct cross-examination.” (People v. Ervin
(2000) 22 Cal.4th 48, 94.) In general, “the decision to what extent and how to
cross-examine witnesses comes within the wide range of tactical decisions competent
counsel must make. [Citation.] ‘Even where defense counsel may have “ ‘elicit[ed]
evidence more damaging to [the defendant] than the prosecutor was able to accomplish

-- 21 of 33 --

22
on direct’ ” [citation], [courts] have been “reluctant to second-guess counsel” [citation]
where a tactical choice of questions led to the damaging testimony.’ [Citation.]” (People
v. Cleveland (2004) 32 Cal.4th 704, 746.)
It is not clear to us that defense counsel’s cross-examination question necessarily
constituted deficient performance. Defense counsel’s cross-examination elicited
evidence from Officer Aranda that J.F. had refused to participate in a formal in-field
showup. Officer Aranda indicated that he had asked J.F. several times whether he
wanted to identify defendant in the field, but J.F. did not want to identify the driver.
First, when defense counsel asked the showup question, it was not a foregone
conclusion that the trial court would allow the prosecutor to ask Officer Aranda on
further redirect examination whether J.F. had informally identified defendant. Second, in
light of the damaging evidence of the 911 call, the police scanner in the white Chevy
Tahoe, and the paper dealer plates concealing the actual license plates, defense counsel
could have reasonably made a tactical decision to confirm that J.F. never did identify
defendant in a showup. Third, instead of plainly answering the defense attorney’s yes or
no question, the officer gave a cryptic reply (“[P]ersonally, he did not, no”], which raised
the need for further explication.
Defense attorneys have “wide latitude” in making tactical decisions. (Strickland,
supra, 466 U.S. at p. 689.) In assessing attorney performance, a reviewing court must
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance” (ibid.) and strive “to eliminate the distorting effects of
hindsight.” (Ibid.)
In any event, even if we were to conclude that defense counsel’s cross-
examination fell below professional norms, defendant has not satisfied the prejudice
prong of an ineffective assistance of counsel claim. There was evidence that J.F. told the
911 operator that someone had broken into and was burglarizing the apartment next to
his. He said one person was waiting outside in a white truck, which had paper dealer

-- 22 of 33 --

23
plates that said C & J Auto Sales. He reported that two “guys” had gone inside his next-
door neighbor’s apartment. J.F. later said the vehicle was a white Explorer. He reported
seeing someone go by his apartment, heard a loud noise that sounded like the breaking of
a door or window, and was hearing a lot of noise that sounded like they were “searching
through everything.” He continued to report hearing noise that sounded as if they were
searching through everything, and he then reported that the noise was coming from the
back of his neighbor’s residence. When the 911 operator asked whether he could still see
the vehicle, J.F. reported that officers had already arrested the man in the truck. When
asked whether the officers were with the correct vehicle, “the suspicious one,” J.F.
indicated yes.
The evidence of Officers Knowlton’s quick arrival and contact with defendant in a
white vehicle with the paper dealer plates, his handcuffing of defendant, and the
ransacked condition of the burglarized apartment was largely consistent with the
information given by J.F. to the 911 operator. Further, J.F had told Officer Aranda on
September 13, 2016 that he heard knocking at his neighbor’s door about a minute after he
saw two men got out of the suspect vehicle and that he saw the waiting driver looking in
the direction of his neighbor’s apartment.
There was an ample evidentiary basis for the jury to credit J.F.’s statements to the
911 operator over his inconsistent and evasive trial testimony. The evidence indicated
that J.F was afraid of defendant. In addition to the recorded 911 call and J.F.’s statements
to Officer Aranda near the time of the burglary, there was incriminating evidence that the
suspect vehicle contained an electronic scanner monitoring the channel that was being
used by Salinas Police Department and that its paper dealer plates concealed actual
license plates.
Defendant has failed to demonstrate that there is a reasonable probability that the
result of the proceeding would have been different if defense counsel had not asked
Officer Aranda to confirm that J.F. had never identified defendant in a showup.

-- 23 of 33 --

24
(See Strickland, supra, 466 U.S. at p. 694; Harrington, supra, 562 U.S. at pp. 111-112.)
We reject this claim of ineffective assistance of counsel. (See Strickland, supra, at
pp. 687, 700.)
3. Failure to Object to Alleged Griffin Error in Closing Argument
a. Background
In closing argument, the prosecutor proposed two possible theories that the
defense might raise to the burglary charge. The first theory was that defendant had been
the only one in the white Chevy Tahoe and had not dropped anyone off. But the
prosecutor already had argued that defendant’s statement to Officer Aranda that he did
not have any friends was “simply untrue.” The prosecutor offered a second possible
defense theory that defendant had “dropped off the two guys” but “he had no idea that
they were going to burglarize anything.”
The prosecutor then posed a series of questions to the jury: “[W]hy was
[defendant] in front of the house? Why is he even there in general? Why did he drive
around in a span of eight minutes multiple locations in the same area?” The prosecutor
also asked: “Why rev the engine three times when you’re stationary outside a residence?
Why did he have a police scanner right next to him? Why would his actual license plate
cover it? Why was he not surprised at all by the question by Officer Yoneda and Officer
Knowlton of where are your friends? Why wasn’t his response who? What? What are
you talking about?”
As to the second possible defense scenario posed by the prosecutor, the prosecutor
asked the jurors where are “those two guys to tell you” what they were doing, and the
prosecutor told the jurors that “[t]he defense can call witnesses too.” He argued that the
defense failed to call logical witnesses and suggested that the defense could have called
them if defendant “didn’t know what those two guys were doing” or if “what they were
doing was innocent.” The prosecutor asked, “Where is the evidence [that] he had any
other purpose [aside from burglary]?”

-- 24 of 33 --

25
b. Analysis
Based on the prosecutor’s closing argument, defendant now argues that defense
counsel rendered ineffective assistance of counsel by failing to object to Griffin error.
(See Griffin v. California (1965) 380 U.S. 609 (Griffin).) In Griffin, the United States
Supreme Court held that a defendant’s refusal to testify at trial may not be used as
evidence of his guilt. (Id. at p. 614.) Consequently, the Fifth Amendment right against
self-incrimination, applicable to the states through the Fourteenth Amendment (Malloy v.
Hogan (1964) 378 U.S. 1, 6, 8), prohibits both prosecutorial comment on a criminal
defendant’s failure to testify at trial and jury instructions that such silence is evidence of
guilt. (Griffin, supra, at p. 615.)
“[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. [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).)
“The Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly,
on a defendant’s decision not to testify on his own behalf. [Citations.]” (People v.
Taylor (2010) 48 Cal.4th 574, 632-633 (Taylor).) Griffin’s holding “does not, however,
extend to bar prosecution comments based upon the state of the evidence or upon the
failure of the defense to introduce material evidence or to call anticipated witnesses.
[Citations.]” (Bradford, supra, at p. 1339.)
Defendant asserts that Griffin error occurred because only he “could answer the
prosecutor’s closing questions . . . .” Here, the prosecutor’s queries amounted to proper
comment on the evidence against defendant. “Contrary to defendant’s argument, on this
record, there is no reasonable likelihood the jury understood the prosecutor’s remarks as
an invitation to draw an improper inference of guilt from defendant’s decision not to
testify. [Citation.]” (Taylor, supra, 48 Cal.4th at p. 633.) Further, as suggested by the
prosecutor’s closing argument, defendant could have called the two passengers who were

-- 25 of 33 --

26
seen leaving the white Chevy Tahoe to show that he had a purpose other than aiding and
abetting a burglary. (See People v. Thomas (2012) 54 Cal.4th 908, 945 [no Griffin error
where “prosecutor’s comments were framed in terms of the [defendant’s] failure to call
some person other than [the] defendant”].)
Moreover, “[a]n attorney may choose not to object for many reasons, and the
failure to object rarely establishes ineffectiveness of counsel. [Citation.]” (People v.
Kelly (1992) 1 Cal.4th 495, 540.) Defense counsel may have reasonably decided that he
did not want “to draw the jurors’ attention to particular comments by the prosecutor by
objecting to them.” (People v. Huggins (2006) 38 Cal.4th 175, 206.) In any event,
defense counsel could have reasonably concluded, as have we, that he did not have a
valid Griffin objection because the prosecutor was merely commenting on the state of
evidence and the defense’s failure to call two logical witnesses other than defendant.
(See People v. Clair (1992) 2 Cal.4th 629, 663 [no Griffin error because there was no
reasonable likelihood that jury understood the prosecutor’s argument in context to be a
comment on defendant’s failure to testify].) “Representation does not become deficient
for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
“ ‘In the usual case, where counsel’s trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective assistance
of counsel on appeal unless there could be no conceivable reason for counsel’s acts or
omissions.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015, 1051.) Contrary to
defendant’s assertion, this is not a case where there could be no conceivable reason for
defense counsel’s failure to object to argument on the ground of Griffin error.
Defendant has failed to establish that defense counsel’s failure to object to the
prosecutor’s closing argument on the ground of Griffin error constituted deficient
performance. (Strickland, supra, 466 U.S. at pp. 687-688.) We reject this claim of
ineffective assistance. (See id. at pp. 687, 700.)

-- 26 of 33 --

27
4. Failure to Object to Prosecutor’s Argument as Appeal to the Jury’s Sympathy
a. Background
In closing argument, the prosecutor contended that J.F.’s statements during the
911 call, during which he was relating events as they were unfolding, were more credible
than J.F.’s testimony at trial. He argued that J.F. was “scared in court.” The prosecutor
stated: “Unfortunately, people who try to do the right thing and report crime, they have
to come in and talk. There’s no way to actually get the evidence unless they come in and
share. And that may make them feel they’re being put at risk, their family’s put at risk.
But that’s our system so that we can prove our case.” The prosecutor suggested that
J.F.’s “only personal interest was trying to be safe” and that interest should not be held
“against what he reported initially.” He said: “[J.F.] lives in East Salinas. He has
perceptions of what goes down, perceptions and situations that you may not have to deal
with in your daily life. But those are real for him.”
In arguing the defense case, defense counsel suggested that defendant’s response
that he did not have any friends was “consistent with someone living in East Salinas,
they’re not as cooperative with police.” He stated: “[L]iving in East Salinas, you don’t
want to be seen cooperating with police. It’s part of your makeup, you don’t necessarily
cooperate with police all the time. When police start pulling you out of a car, placing you
in cuffs, you may not be so receptive as to what was actually going on.” He compared
defendant to J.F., stating that “they don’t want to be seen cooperating.” Defense counsel
said, “[T]hat’s what I believe explains [defendant’s] lack of forthcomingness to police
officers when this happened.”
In his rebuttal, the prosecutor suggested that the comparison of J.F. to defendant
was disrespectful. He argued: “I think it’s disrespectful to the residents of East Salinas
who are good people, who are good people there with families, just as American as you
or I, trying to live their daily lives. [¶] And you heard from . . . two of them. You didn’t
hear about any convictions on those people. You didn’t hear about them doing anything

-- 27 of 33 --

28
wrong. Those are good people too, they just live in a rough area and the rough area
affects how they behave. [¶] Now, they live in a rough area because of people like
Mr. Santana. . . . And I think that’s unfair to compare [defendant Santana] to [J.F.] So
think about that in evaluating evidence because I don’t think that’s an apt comparison.
I think that’s disrespectful to good people who live in East Salinas.”
b. Analysis
Defendant asserts that he was deprived of effective assistance of counsel when
defense counsel failed to object to the prosecutor’s improper appeal to the jury’s
sympathy and passion during closing argument, which he asserts occurred when the
prosecutor asked the jurors to sympathize with the residents of East Salinas.
“ ‘It is, of course, improper to make arguments to the jury that give it the
impression that “emotion may reign over reason,” and to present ‘irrelevant information
or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an
irrational, purely subjective response.” [Citation.]’ [Citation.]” (People v. Linton (2013)
56 Cal.4th 1146, 1210.) For example, “[a]s a general rule, a prosecutor may not invite
the jury to view the case through the victim’s eyes [in the guilt phase] because to do so
appeals to the jury’s sympathy for the victim. [Citations.]” (People v. Leonard (2007) 40
Cal.4th 1370, 1406.) Similarly, in a prosecution for the kidnapping of a five-year-old
child and a five-month-old child and the murder of the younger one, the prosecutor’s
argument asking jurors to imagine that this had happened to one of their children was an
improper appeal to the jury’s sympathy or passion. (People v. Pensinger (1991) 52
Cal.3d 1210, 1230, 1250.)
Nevertheless, “ ‘[a] prosecutor is given wide latitude to vigorously argue his or her
case and to make fair comment upon the evidence, including reasonable inferences or
deductions that may be drawn from the evidence.’ [Citation.]” (People v. Dykes (2009)
46 Cal.4th 731, 768.) In this case, the prosecutor’s argument addressed J.F.’s evasive and
inconsistent testimony at trial that deviated from his statements to the 911 operator and

-- 28 of 33 --

29
Officer Aranda. He asked the jurors to credit J.F.’s earlier statements. The prosecutor’s
rebuttal comments were a response to defense counsel’s likening of defendant’s attitude
toward police to J.F.’s. In an attempt to differentiate defendant from J.F., who he had
recognized was scared in court, the prosecutor called defense counsel’s comparison
disrespectful to Salinas’s good residents. The prosecutor’s argument did not “encourage
the jury to subordinate their reason to emotion. [Citation.]” (People v. Winbush (2017) 2
Cal.5th 402, 486.)
Defense counsel could have reasonably concluded, as have we, that the prosecutor
did not improperly appeal to the jury’s sympathy and passion and his argument was
within the wide latitude accorded prosecutors to make fair comment upon the evidence.
A defense counsel does not act deficiently by failing to make objections that he or she
reasonably believes would disserve a defendant (see People v. Harris (2008) 43 Cal.4th
1269, 1290) or are meritless. (See People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36.)
Defendant has not demonstrated that defense counsel acted deficiently by failing
to object to the prosecutor’s closing argument on the ground that he was appealing to the
jury’s sympathy or passion. (Strickland, supra, 466 U.S. at pp. 687-688.) This claim of
ineffective assistance must be rejected as well. (See id. at pp. 687, 700.)
C. Claim of Cumulative Prejudice
Defendant maintains that he was unconstitutionally deprived of a fair trial “due to
the cumulative prejudice flowing from [his] counsel’s multiple errors.” We have found
no errors and consequently no prejudice to cumulate. (See People v. Ghobrial (2018) 5
Cal.5th 250, 293.)
D. New Discretion to Strike Enhancement for a Prior Serious Felony Conviction
Defendant argues that under the retroactivity rule of In re Estrada (1965) 63
Cal.2d 740 (Estrada), this court should remand the matter to allow the trial court to
exercise its discretion as to whether to dismiss or strike the prior serious felony
enhancement, as now permitted under section 1385. The People contend that defendant’s

-- 29 of 33 --

30
argument is “not ripe because the statutory amendment authorizing such action will not
become effective until January 1, 2019.” This contention is no longer valid because the
legislation is now in effect.
Effective January 1, 2019 (see Stats. 2018, ch. 1013, § 2, p. 6672 [Sen. Bill No.
1393]; Gov. Code, § 9600, subd. (a)), section 1385 was amended to delete the provision
prohibiting a judge from striking a prior serious felony conviction enhancement. Section
667, subdivision (a), also was amended to omit its reference to section 1385, subdivision
(b). (See Stats. 2018, ch. 1013, § 1, pp. 6668-6669 [Sen. Bill No. 1393].) Section 1385
now permits a court “in furtherance of justice” to exercise its discretion to strike or
dismiss a five-year enhancement for a prior serious felony conviction.
The People do not dispute that after January 1, 2019, the new law applies to
nonfinal judgments under the Estrada rule. “[N]ewly enacted legislation mitigating
criminal punishment reflects a determination that the ‘former penalty was too severe’ and
that the ameliorative changes are intended to ‘apply to every case to which it
constitutionally could apply,’ which would include those ‘acts committed before its
passage[,] provided the judgment convicting the defendant of the act is not final.’
(Estrada, supra, 63 Cal.2d at p. 745.) The Estrada rule rests on the presumption that, in
the absence of a savings clause providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.’ [Citation.] ‘The
rule in Estrada has been applied to statutes governing penalty enhancements, as well as
to statutes governing substantive offenses.’ [Citations.]” (People v. Buycks (2018) 5
Cal.5th 857, 881-882.)
The People’s alternative argument is that a remand is unwarranted because “the
trial court’s statements at sentencing clearly indicated that it would not have dismissed
the [five-year prior serious felony] enhancement in any event.” They assert that the trial

-- 30 of 33 --

31
court’s statements explaining its refusal to strike defendant’s prior residential burglary
conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 are “damning
to [defendant’s] request for resentencing” with regard to the enhancement and “clearly
indicate [that] the court would not have dismissed his prior serious felony enhancement
even had it possessed discretion to do so.”
We agree that the record suggests that it is unlikely that the court would have
exercised its discretion under section 1385 to strike or dismiss the enhancement if it had
had such discretion. In ruling on defendant’s Romero motion, the trial court considered
whether defendant fell outside the spirit of the Three Strikes law. (See People v.
Williams (1998) 17 Cal.4th 148, 161.) It noted that defendant’s prior strike conviction
was also for a residential burglary, which was committed in 2011, and that defendant did
not successfully complete probation in that case. The court pointed out that defendant
committed another felony in 2014,4 and he was sentenced to imprisonment. The
residential burglary for which defendant was convicted in this case was committed in
2016 after defendant was released to “PRCS” (postrelease community supervision).
The trial court never stated, however, that the crime was so heinous that it would
maximize defendant’s sentence to the full extent of the law or that it would have imposed
the five-year enhancement even if it had had the discretion under the law not to do so.
(Cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 425 [“a remand is required [under
the newly amended section 12022.53] unless the record shows that the trial court clearly
indicated when it originally sentenced the defendant that it would not in any event have
stricken a firearm enhancement”]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896
[“Reconsideration of sentencing is required under Romero where the trial court believed
4 The People’s opposition to defendant’s Romero motion indicated that the offense
was a violation of section 29800 (felon in possession of a firearm) and occurred
approximately two months after he was paroled for the prior residential burglary
conviction.

-- 31 of 33 --

32
it did not have discretion to strike a [T]hree [S]trikes prior conviction [under section
1385], unless the record shows that the sentencing court clearly indicated that it would
not, in any event, have exercised its discretion to strike the allegations”].)
At sentencing, the trial court imposed a 12-year term on the first degree burglary
conviction (double the upper term of six years) and stated that it was adding the five-year
prior serious felony enhancement that it “can’t strike.” The prior residential burglary
conviction that was the basis for sentencing under the Three Strikes law was also the
basis for the prior serious felony enhancement. The trial court additionally imposed a
one-year prior prison term enhancement (§ 667.5, subd. (b)). However, it struck the
second one-year prior prison term enhancement under section 1385.
Although it seems doubtful that the trial court would have exercised its discretion
to strike the prior serious felony enhancement if it had had the discretion to do so, the
record before us does not reflect that the trial court necessarily would have declined to do
so. Accordingly, a remand is appropriate to allow the trial court to decide whether to
exercise its discretion to strike the prior serious felony enhancement under the current
section 1385.
DISPOSITION
The judgment is reversed, and the matter is remanded for the limited purpose of
resentencing in light of current section 1385.

-- 32 of 33 --

_________________________________
ELIA, ACTING P. J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
MIHARA, J.
People v. Santana
H0445194

-- 33 of 33 --