[796]Opinion
JOHNSON, J. The main issue in this case is whether the rule of Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240], that silence following arrest and a Miranda1 warning cannot be used to impeach the defendant’s exculpatory testimony at trial, applies where the Miranda warning actually is given by a private security guard who has no duty to give such a warning.2 (See In re Deborah C. (1981) 30 Cal.3d 125, 134 [177 Cal.Rptr. 852, 635 P.2d 446].) We hold the rule is applicable in such a case.3 As an independent ground for reversal, we agree with the decision in People v. Jacobs (1984) 158 Cal.App.3d 740 [204 Cal.Rptr. 849] that impeaching the defendant with his postarrest, post -Miranda warning silence violates his privilege against self-incrimination under article I, section 15 of the California Constitution.
Other contentions of the defendant are discussed in the unreported portion of this opinion because their resolution does not meet the standards for publication of rule 976 of the California Rules of Court.
Facts and Proceedings Below
Defendant was convicted by a jury of one count of robbery.
The victim, Ms. Zumba, was shopping in a Los Angeles supermarket when she was approached by two men, one Latin, one black. The black man demanded the money Ms. Zumba was carrying in her hand. She refused. The man put his hand under his sweater as if he were carrying a weapon. He then grabbed the money out of Ms. Zumba’s hand and left the store.
Ms. Zumba reported the robbery to store employees including Mr. Johnson, an off-duty police officer who was working as a security officer for the market. Johnson remembered that at about the time of the robbery he had seen a black man in the market who fit the description Ms. Zumba gave. Johnson’s attention focused on this man because he and a Latin man were walking through the store together seeming to put items at random into their shopping cart.
[797]Two days later Johnson was again working at the market with a partner, Kenneth Bailey. Bailey observed two men, a black and a Latin, walking through the store together appearing to be picking items at random and putting them in a shopping cart. The men matched the description of the men involved in the Zumba robbery in appearance and behavior.
Bailey alerted Johnson who went outside the store and watched for the men to leave. Defendant, the black man, exited the store. To Johnson, the defendant appeared to be the man he had observed the day Ms. Zumba was robbed and appeared to match the description of the robber given by Ms. Zumba. Johnson walked up to the defendant and identified himself as a store security officer. He asked defendant to accompany him back into the store in connection with a robbery that had occurred two days before. Defendant agreed to go with Johnson. Johnson took defendant to an upstairs office. Johnson testified at that time defendant was in custody and he was handcuffed before or just after he was taken upstairs.
While Johnson waited with the defendant, Bailey brought Ms. Zumba to the store.
Johnson took the defendant, apparently still handcuffed, downstairs to the market while Bailey took Ms. Zumba by a different route upstairs to the office. From there Ms. Zumba could observe people in the market through a one-way glass. Johnson stood with the defendant in one of the aisles. There were nine or ten other people in that aisle including three other black males. Ms. Zumba identified defendant as the man who had robbed her.
Defendant was brought back upstairs and placed under arrest. Bailey read defendant his “Miranda rights.” Defendant was specifically told, “You have the right to remain silent. Anything you say can and will be used against you in a court of law.” Defendant said nothing and apparently remained silent up to the point city police arrived and took defendant into custody.
Defendant testified at his trial. He admitted having been in the market at about the time Ms. Zumba was robbed but denied robbing her. He also admitted he had talked with a Latin man in the market shortly before his arrest. According to defendant, the man approached him and offered to sell him $15 worth of food stamps for $10. Defendant gave the man $10 but did not receive the food stamps. Instead, the man told defendant he would meet him at the check-out line with the stamps. When defendant arrived at the check-out area the Latin man was not in sight. Defendant went outside to look for the man and that is when Johnson approached him.
[798]Over defense objections, the prosecutor was allowed to bring out the fact defendant had remained silent after receiving the Miranda warning. In particular, it was established defendant did not tell the security guards about the alleged theft of his $10. In closing argument, again over a defense objection, the prosecutor was allowed to argue defendant’s silence regarding the Latin man’s theft of his money impeached the credibility of this story.
Discussion
1. Impeaching Defendant Through His Silence After Arrest and a Miranda Warning Denied Defendant Due Process of Law Under the Fourteenth Amendment.
If Officers Bailey and Johnson had been on-duty police officers instead of private security guards, impeachment of defendant through his silence would clearly have been impermissible. In Doyle v. Ohio, supra, the Supreme Court held the prosecution’s use of the defendant’s postarrest, post-Miranda warning silence to impeach the credibility of the defendant’s exculpatory testimony violated the due process clause of the Fourteenth Amendment.
We do not read Doyle as requiring the defendant’s silence be government-induced; only that it may have been Miranda-induced. Nothing in the Doyle opinion itself indicates an intent to limit the rule prohibiting impeachment to cases where a government agency was the source of the Miranda warning. The court, in Doyle, focused its analysis on the content of the warning, not on who gave it.
“Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. . . .
“Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (426 U.S. at pp. 617-618 [49 L.Ed.2d at pp. 97-98]; citation and fh. omitted.)
The court also quoted from Justice White’s concurrence in United States v. Hale (1975) 422 U.S. 171, 182-183 [45 L.Ed.2d 99, 108, 95 S.Ct. 2133]: “ ‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does [799]not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’ ” (Id., at p. 619 [49 L.Ed.2d at p. 98].
Our conclusion that the focus must be on the assurances and not the as-surer is supported by the Supreme Court’s subsequent decision in Fletcher v. Weir (1982) 455 U.S. 603 [71 L.Ed.2d 490, 102 S.Ct. 1309] holding the record must reflect the defendant actually received a Miranda warning in order to preclude impeachment based on postarrest silence. The court explained Doyle as follows: “While recognizing the importance of cross-examination and of exposing fabricated defenses, we held in Doyle v. Ohio . . . that because of the nature of Miranda warnings it would be a violation of due process to allow comment on the silence which the warnings may well have encouraged. . . .
“The significant difference between the present case and Doyle is that the record does not indicate that respondent . . . received any Miranda warnings during the period in which he remained silent immediately after his arrest.” (Id., at p. 605 [71 L.Ed.2d at p. 493]; italics added.)
It is true the Supreme Court in describing Doyle has referred to “government action” and “governmental assurances” inducing the defendant’s silence. (See Jenkins v. Anderson (1980) 447 U.S. 231, 240 [65 L.Ed.2d 86, 95, 100 S.Ct. 2124]; Fletcher v. Weir, supra, 455 U.S. at p. 606 [71 L.Ed.2d at p. 493].) Those references are merely a description of what happened in Doyle. They provide no basis for an interpretation limiting Doyle to situations where on-duty police officers give the arrestee the Miranda warning. That Doyle is not limited to warnings by police officers is apparent from the Court’s citation of Johnson v. United States (1943) 318 U.S. 189 [87 L.Ed. 704, 63 S.Ct. 549] as an analogous case. (426 U.S. at p. 618, fn. 9 [49 L.Ed.2d at p. 98].) In Johnson, the Court held the trial judge was not required to allow the defendant who testified at his trial to invoke the privilege against self-incrimination but, once the judge advised the defendant he could assert the privilege, and defendant asserted it, elementary fairness precluded the prosecutor from commenting to the jury on defendant’s invocation of the privilege. (318 U.S. at pp. 192, 197 [87 L.Ed. at pp. 709, 711].) While Johnson can be viewed as a case of government-induced silence, it stands for the propositions a defendant cannot be impeached on his silence after being advised of the right to remain silent [800]whether or not such advice was required to be given and whether or not the advisor is a policeman.
If we were to hold Doyle is not restricted to police officers but is limited to Miranda warnings given by government employees, hair-splitting would result which would have nothing to do with the fundamental fairness that is supposed to attach to court proceedings. As a result, “the decision as to when basic constitutional principles apply will turn on who is paying the officer’s salary at the time he [advises] the arrestee.” (In re Deborah C., supra, 30 Cal.3d at p. 141, [Bird, C. J., cone.].) Or, if a private security guard and a police officer are both present at an arrest, the arrestee’s rights would turn on which of them reads the Miranda warnings. Moreover, we would be inviting private security personnel to engage in a game of entrapment in which they would read the arrestee the Miranda rights for the very purpose of inducing his or her silence in order to enable the prosecutor to use this silence against the defendant at trial. (Cf. Johnson v. United States, supra, 318 U.S. at p. 197 [87 L.Ed. at p. 711].)
2. Impeaching Defendant on the Basis of His Postarrest, Post-Miranda Silence Violated His Privilege Against Self Incrimination Under Article I, Section 15 of the California Constitution and Evidence Code Section 940.
As a separate, independent ground for reversal, we hold the use of defendant’s silence for purposes of impeaching his trial testimony violated his privilege against self-incrimination guaranteed by article I, section 15 of our state Constitution and incorporated into section 940 of the Evidence Code.4
In People v. Jacobs (1984) 158 Cal.App.3d 740 [204 Cal.Rptr. 849] it was held questioning defendant on cross-examination about his silence occurring both during and after his arrest violated the defendant’s privilege against self-incrimination under article I, section 15. (158 Cal.App.3d at p. 750.) We believe that decision is supported, if not compelled, by our Supreme Court’s opinions in People v. Cockrell (1965) 63 Cal.2d 659 [47 Cal.Rptr. 788, 408 P.2d 116] and People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272],5
[8013]. The Error in Allowing the Impeachment Testimony Was Prejudicial.
At the oral argument of this appeal the People conceded Doyle applied to this case and rendered inadmissible appellant’s silence ajier the security guard gave the Miranda warning. However, the People then argued the prosecutor was entitled to comment on defendant’s prearrest silence. Therefore, there was no prejudice because defendant was silent both before and after his arrest.
We agree prearrest silence can be used to impeach the defendant’s trial testimony unless the court finds the silence was an invocation of Fifth Amendment rights. (Jenkins v. Anderson, supra, 447 U.S. 231; People v. Free (1982) 131 Cal.App.3d 155 [182 Cal.Rptr. 259]; and see People v. Preston (1973) 9 Cal.3d 308 [107 Cal.Rptr. 300, 508 P.2d 300]; People v. Wilson (1965) 238 Cal.App.2d 447 [48 Cal.Rptr. 55].) Moreover, there is no basis in the record of this case for an inference defendant’s prearrest silence was intended as an invocation of his privilege against self-incrimination. We disagree, however, with the argument defendant was not prejudiced by references to his postarrest silence.
On cross-examination defendant was asked why he did not tell Johnson or Bailey or Officer Ramirez about the Latin man stealing his $10. This question was asked in various ways at least 11 times. (See dissent, post, at p. 808, fns. 2 and 3.) Sometimes the question referred to his prearrest silence. Sometimes the question referred to his postarrest silence. Sometimes the time frame of the question was ambiguous. In addition, Johnson and Bailey were asked if defendant had “ever” reported to them the alleged theft of his $10. They both responded he had not.6 More important, the prosecutor argued to the jury if the defendant was truly innocent he would have ignored the Miranda warning and told his side of the story to the security officers or Officer Ramirez. This is exactly the sort of argument Doyle was intended to prohibit. (See quotation from United States v. Hale, supra, at p. 7.)
The applicable test for prejudice in this case is whether these errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Galloway (1979) 100 Cal.App.3d 551, 559 [160 Cal.Rptr. 914].) Upon an examination of the entire record, it appears reasonably possible [802]these errors may have materially influenced the jury in arriving at its verdict.
The evidence against defendant was not overwhelming. It was based almost entirely on Ms. Zumba’s identification of defendant. This identification is suspect given the circumstances under which it occurred. Defendant was placed in an aisle of the market alongside Johnson whom Ms. Zumba knew to be a security officer employed by the market. It appears from the record defendant was handcuffed at this time. The record does not reflect how far away Ms. Zumba was from the defendant when she made her identification but it does show she was in an upstairs office looking down through a one-way mirror. She could not have been very close.
The impeachment of defendant touched a “live nerve in the defense.” (People v. Galloway, supra, 100 Cal.App.3d at p. 561.) The testimony about defendant’s silence and the prosecutor’s remarks to the jury were intended to challenge the credibility of the one exculpatory defense presented by the defendant. The sole purpose was to convey the impression defendant’s explanation was fabricated. (Cf. Galloway, supra, at p. 561; Jacobs, supra, 158 Cal.App.3d at p. 752.)
The harmful impact of the prosecutor’s conduct was not ameliorated by a curative instruction from the trial court. To the contrary, the trial court overruled defense objections to the testimony and closing argument and actively condoned the abridgment of defendant’s constitutional rights.
4. The Trial Court Erred in Prohibiting Defendant’s Counsel From Comparing the Defendant’s Lineup to Usual Live and Photo Lineups.*
Disposition
The judgment is reversed. The matter is remanded for a new trial consistent with the views expressed herein.
Thompson, J., concurred.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974],
At oral argument, the People conceded this issue. See pages 801-802, infra.
In this case the Miranda warning was given by an off-duty state college police officer working as a private security guard. We do not address the question whether In re Deborah C. applies to off-duty police officers. (See 30 Cal.3d at p. 140 [Bird, C. J. cone.].)
The question whether article I, section 15 may be invoked to exclude evidence in a criminal proceeding in light of article I, section 28, subdivision (d) was answered in the affirmative in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 810 [210 Cal.Rptr. 204, 693 P.2d 789],
Defense counsel did not object to the impeaching testimony on the ground its probative value was substantially outweighed by the serious risk of undue prejudice to the defendant. (Evid. Code, § 352.) Therefore, that objection is waived. (People v. Navarro (1981) 126 Cal.App.3d 785, 795 [179 Cal.Rptr. 118].) But see People v. Jacobs, supra, 158 Cal.App.3d at pp. 752-754 (Lillie, J. cone.)
We disagree with the dissent’s approach to the question of prejudice which is to try to count the number of questions relating to prearrest silence and the number relating to post-arrest silence. This is like counting the trees and ignoring the forest. Furthermore, as we noted above, the exact species of some of the trees is in doubt.
See footnote, ante, page 793.