People v. Miller CA1/4

Filed 12/24/20 P. v. Miller CA1/4
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR

           Plaintiff and Respondent,
 SUSAN MILLER,                                                         Mendocino County
                                                                       Super. Ct. No. SCUK-CRCR-2018-93826)
           Defendant and Appellant.

          Defendant Susan Miller appeals a judgment convicting her of being an
accessory to her husband’s alleged attempted murder of their neighbors. It
was undisputed that defendant’s husband shot at the neighbors without legal
provocation during a verbal dispute. The evidence and argument centered on
whether defendant had the requisite knowledge of her husband’s actions and
acted with the intent to help him avoid arrest.
          On appeal, defendant contends the court erred by limiting the
admission of evidence of a prior altercation between defendant’s husband and
the shooting victim, by failing to instruct on the defense of mistake-of-fact,
and by failing to instruct on the lesser offenses of destroying evidence and
making false statements to the police. Defendant also asserts a claim of
ineffective assistance of counsel based on her attorney’s failure to object to
the introduction of testimony regarding her decision to consult with an
attorney before consenting to a search of her car and to the prosecutor’s

argument in closing that her decision reflected a consciousness of guilt.
Finally, she argues that the cumulative impact of the multiple errors
warrants reversal. We find no prejudicial error and therefore shall affirm the
      Defendant’s husband Harry was charged with the attempted murder
(Pen. Code,1 §§ 664, 187, subd. (a)) of his neighbor Paul P. and Paul’s wife
Desiree P. and defendant was charged with one count of being an accessory to
those crimes (§ 32).2 After the proceedings against Harry were suspended
pursuant to section 1368 due to his lack of competency, the charge against
defendant alone proceeded to trial.
      Evidence was introduced that the home of defendant and Harry shared
a driveway with the home of Paul and Desiree. In the afternoon of March 26,
2018, Harry shot Paul in the driveway. According to Desiree, she and Paul
were spreading gravel to fill potholes in the driveway when Harry, standing
in the middle of the pile of gravel, told them to get off his property. When she
told Harry they had the right to maintain the shared driveway, he took a gun
out of his pocket and shot Paul in the stomach. As Harry continued to fire his
gun four more times, she and Paul ran to take cover behind their truck.
When Harry followed them, she charged Harry and wrapped him in a bear
hug to prevent him from using his arms. The two continued to wrestle until

      1   All statutory references are to the Penal Code unless otherwise noted.
      2  California Rules of Court, rule 8.90(b) requires appellate courts to
“consider referring to” victims in criminal proceedings “by first name and last
initial” to protect those individuals’ privacy. Accordingly, we refer to the
victims in this case by their first names and last initials, and thereafter by
first names only. We refer to defendant’s husband by his first name to avoid
any confusion as he shares the same last name as defendant. Our use of first
names is not intended as a sign of disrespect.

the gun dropped to the ground. As both of them scrambled to retrieve it, Paul
hit Harry on the leg and head with a shovel. Desiree picked up the gun, then
she and Paul got into the truck and drove to the hospital. On the way to the
hospital, Desiree reported the shooting to the police.
      When the police arrived at the scene of the shooting, an officer spoke to
defendant, who told the officer that Paul was the initial aggressor. Defendant
explained to the officer that she and her husband had an ongoing dispute
with the neighbors over their use of gravel on their shared driveway. That
afternoon, when Paul started shoveling the gravel, Harry went outside to talk
to Paul. Harry was standing on the gravel pile when Paul hit Harry on his
left leg with the shovel, causing Harry to fall. As he fell, Harry pulled out a
gun and shot Paul. She indicated that she thought there was more than one
shot. She also thought her husband was hit in the head with the shovel after
he fired the first shot. She described her husband as “unconscious, out cold”
after being hit in the head with the shovel.3 After speaking to the police,
defendant took Harry to the hospital for treatment of his injuries. She did not
reveal to the officer that she had filmed the incident.
      Later that evening, when the police interviewed Desiree, they learned
that defendant had video-recorded the incident on a digital camera. An officer
testified that he went to the hospital the following day to speak to defendant
about the camera. He advised her that he had a video that showed her
“holding a camera while her husband shot another man.” The officer

      3 Defendant’s statement to the police was recorded in the police report
as follows: “My husband starting going down and he pulled his gun out of his
pocket and he shot him. Then [Paul] came back and hit him on the back of
the head on the side right here with the shovel. And then he hit him right
here in the forehead with a shovel. I don't know how many times because I
was -- at that point I was just watching him beat my husband with a shovel.”

explained that he could get a search warrant to look for the camera or she
could consent to the search and give him the camera. Defendant indicated
that she did not want to talk to the officer and would like to speak to an
attorney. While defendant spoke to her attorney, the officer obtained a
warrant authorizing the search of her car for the camera. After consulting
with her attorney, she consented to the search.
      On the camera recovered from defendant’s car, officers found four
photos of Harry laying injured on the ground and four videos. Later, officers
were able to recover an additional video that had been deleted but remained
on the memory card. The deleted video was taken before the four photos of
Harry on the ground. The deleted video was played for the jury along with
video taken by Paul and video recovered from Paul’s security camera.
Combined, the videos showed that Harry, not Paul, was the initial aggressor.
The videos show Paul and Desiree shoveling the gravel and Harry standing
on the pile. After Paul shows Harry that he’s recording the interaction on his
cell phone, Harry says “am I supposed to read that” and almost immediately
pulls a gun from his pocket and shoots Paul. Paul’s surveillance camera
shows that after Harry fired his gun he chased after Paul.
      At trial, defendant testified at length about her ongoing dispute with
the neighbors over their shared use of the driveway. She and Harry had filed
a civil complaint against the neighbors for their repeated encroachment on
their property, but the issues were not yet resolved. In January 2017, an
argument between Paul and Harry turned violent when Paul pushed Harry
to the ground causing him to be bed ridden for six weeks with a broken back.
After that incident, defendant and her husband unsuccessfully tried to get
help from the district attorney’s office and the sheriff about Paul’s continued

threatening behavior. She testified that Paul repeatedly drove too fast on the
driveway and she was afraid he would run her over.
      Defendant testified that at the time of the shooting she was not looking
directly at Harry and Paul. She was watching the scene unfold through the
screen on her digital camera. She claimed that she heard the gunshot but did
not see what had happened. The sun was reflecting on the screen of her
camera so she “couldn’t really see very well into the camera.” She didn’t know
“if it was a firecracker or an explosion or what.” After the shot, she moved the
camera down and looked towards Harry but what she saw did not “make
sense” to her. She claimed that she was in shock and distracted when she
spoke to the police officer after the incident. She told the officer what she
thought had happened based what she inferred from Harry’s injuries because
she had not seen a lot of what had actually happened. She confirmed that she
did not see Paul hit Harry on his leg. She explained, “I was trying to make
sense of an unreal, crazy situation. I was trying to just search in my mind to
find some way of explaining it to somebody else when I really didn’t even
understand it myself.” She agreed that there were some things that she
thought she knew but that in reality she “hadn’t actually seen . . . them.”
      She also explained that she deleted the video while at the hospital. She
had started to watch it but stopped watching before the shooting because it
was too upsetting to hear Paul’s voice. She deleted the video to stop it from
playing. She was worried at first that she had deleted evidence that would
help them in their civil suit, but then remembered that the file could still be
recovered if she did not continue to use the camera so she turned it off.
      In closing argument, defense counsel argued that defendant was not
guilty because at the time she spoke to the police and deleted the video she
mistakenly believed Harry had acted in self-defense and did not know he had

committed a felony, as required to prove a violation of section 32. Counsel
explained, “the short of it, she had a poor perception of the incident and did
her best to tell the officer what she believed happened, and in doing that, she
drew inferences from the facts that she did have. Why does she tell [the
officer] . . . that [Paul] had struck her husband in the leg with a shovel? And
then her husband only shot himself in self-defense? Why does she do that?
She does that because she knew certain things. She knew that Paul was
standing by her husband’s left leg and shoveling. She saw that. She knew
that . . . he had been hit in the left leg because she saw the leg injuries, and
she saw the damage to the pants, again the left leg. Right by where the
shovel was. So she had those. So she also knew [Paul] is a dangerous man
who had pushed her husband down in 2017 and broken his back. . . . [¶] . . .
[¶] So she put all of those things together and concluded though she didn’t see
it, she concluded just like she made conclusions about what was in [Paul’s]
mind, she concluded that [Paul] must have hit her husband in the leg with
the shovel causing the damage to pants and the leg causing Harry to shoot in
      The jury found defendant guilty as charged. The court placed her on
probation for 36 months with the condition that she serve 300 days in jail.
Defendant timely filed a notice of appeal.
      Defendant was convicted of being an accessory under section 32, which
provides: “Every person who, after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that said principal
may avoid or escape from arrest, trial, conviction or punishment, having
knowledge that said principal has committed such felony or has been charged
with such felony or convicted thereof, is an accessory to such felony.” The jury

was instructed that to find defendant guilty it had to find that she “knew that
the perpetrator had committed a felony,” that after the felony had been
committed, she “aided the perpetrator,” and that when she acted she
“intended that the perpetrator avoid or escape arrest . . . .” (CALCRIM No.
        On appeal, defendant does not dispute that Harry committed a felony.
She does not challenge the overwhelming evidence that “Harry shot Paul
without legal provocation during a verbal dispute.” She also does not dispute
that her statement to the police that Paul was the initial aggressor was false
and that shortly after the incident she deleted the video which demonstrated
the falsity of her statement. She argues, however, that the court’s evidentiary
and instructional errors and her attorney’s ineffective assistance precluded
the jury from fully considering her defense, which was that “she was not
guilty as an accessory under section 32 because at the time she allegedly
committed that crime she mistakenly believed Harry had acted in self-defense
and thus she did not know he had committed a felony as required to prove
guilt under that statute.”
        1. The January 2017 Incident
        As set forth above, defendant testified that in January 2017, Harry
suffered a significant back injury when Paul pushed Harry to the ground
during an argument. She testified that after the incident, the police
responded to her call. Finally, she testified that in the month preceding the
shooting she wrote letters and emails to various law enforcement officials
including the county sheriff, warning that Paul is an angry bully, that they
were living in fear, and that if law enforcement does not help them, she
believed Paul would kill them. On appeal, she contends the court erred in
excluding evidence that Paul had been charged with assault with great bodily

injury following the January 2017 incident and that Paul pled guilty to
misdemeanor disturbing the peace in exchange for probation and a protective
order allowing him to have only peaceful contact with her and Harry. She
also argues that the court erred in excluding from evidence the letter
defendant wrote to the sheriff.
      It is unclear that defendant attempted to introduce this evidence at
trial. Prior to trial, defense counsel indicated that he intended to call as
witnesses an investigator from the district attorney’s office and a deputy
district attorney to testify about the January 2017 incident and defendant’s
subsequent emails to law enforcement. While the prosecutor argued that
most of this testimony would be inadmissible hearsay, defense counsel
countered that defendant’s statements to the witnesses regarding her fear of
Paul would be admissible as prior consistent statements and would be
relevant to “her mental state and why she would misperceive what she saw”
at the time of the shooting. (Italics added.) The court did not rule on the
admissibility of these witnesses’ testimony and ultimately the witnesses were
not called. Prior to the start of trial, the court ruled that Paul’s misdemeanor
conviction for disturbing the peace was inadmissible and that there should be
no mention of Paul’s probation because “asking her about probation would be
a back door way of bringing in a non-moral turpitude misdemeanor.” Defense
counsel did not challenge the court’s ruling on the admissibility of the
conviction and agreed that he would not “need to talk to [defendant] about
the probation.” Defense counsel indicated that he intended to ask defendant
“about some of the things that happened” between the two couples and the
court agreed that the fact that there is “bad blood” between the couples “is
certainly going to come in a number of different ways.” Consistent with its
ruling, the court allowed defendant to testify as described above but

prohibited defense counsel from introducing a copy of defendant’s letter to the
sheriff which apparently referenced the restraining order issued as a
condition of Paul’s probation. Defendant argues that the court’s ruling
necessarily excluded the evidence that Paul was initially charged with a
felony assault and precluded him from calling the law enforcement witnesses
to testify about her prior statements concerning Paul. Alternatively, she
argues her attorney rendered ineffective assistance by failing to introduce
this evidence.
      We need not address the admissibility of the evidence because the
failure to introduce it was harmless. While defense counsel may have been
correct in arguing prior to trial that this evidence might be relevant to
explain “why she would misperceive what she saw” (italics added), defendant
did not testify that she misperceived or misunderstood what she saw. She
testified repeatedly that she did not see what happened immediately
preceding the first shot. She also testified that she had not watched the video
at the time she deleted it. Defendant’s state of mind with respect to Paul is
irrelevant to whether she saw the incident or watched the video. If the jury
believed defendant when she testified that she had not seen the shooting and
had not watched the video, it would have been required to find her not guilty
based on her lack of knowledge regarding Harry’s crime. Because the jury
found defendant guilty, the jury necessarily found either that she had seen
the shooting or that she watched the video before deleting it. Once the jury so
determined, the only reasonable conclusion is that she acted with the intent
to help her husband avoid arrest. Defendant does not suggest otherwise.
Accordingly, any potential error regarding the exclusion of this evidence is

      2. Mistake of Fact
      Defendant contends the court erred by failing to instruct the jury that a
mistake of fact is a defense to the charged crime. She argues that the jury
was entitled to find her not guilty if it found that she had an honest but
unreasonable belief that Harry acted in self-defense. We disagree.
      As detailed above, defendant’s testimony was not that she
misunderstood what she saw (i.e., that she honestly but unreasonably
thought she saw Harry shoot Paul in self-defense). Her defense was that she
had not actually seen the shooting and told the officer what she assumed
must have happened. Accordingly, no evidence was presented to support
giving the mistake-of-fact instruction.
      3. Lesser Offenses
      Defendant contends the trial court erred in failing to instruct
sua sponte on destroying evidence (§ 135) and making false statements to law
enforcement (§ 148) as lesser included offenses to the charged offense.4
      A trial court must instruct the jury sua sponte on a lesser offense
necessarily included in the charged offense if there is substantial evidence
the defendant committed the lesser offense but not the greater. (People v.

      4  Section 135 provides: “A person who, knowing that any book, paper,
record, instrument in writing, digital image, video recording owned by
another, or other matter or thing, is about to be produced in evidence upon a
trial, inquiry, or investigation, authorized by law, willfully destroys, erases,
or conceals the same, with the intent to prevent it or its content from being
produced, is guilty of a misdemeanor.”
        Section 148, subdivision (a)(1) provides: “Every person who willfully . . .
obstructs any . . . peace officer . . . in the discharge or attempt to discharge
any duty of his or her office or employment, when no other punishment is
prescribed, shall be punished by a fine not exceeding one thousand dollars
($1,000), or by imprisonment in a county jail not to exceed one year, or by
both that fine and imprisonment.”

Macias (2018) 

26 Cal. App. 5th 957

, 961 (Macias).) “ ‘[A] lesser offense is
necessarily included in a greater offense if either the statutory elements of
the greater offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser.’ ” (People v. Licas (2007) 

41 Cal. 4th 362

, 366.) Defendant concedes that these lesser offenses are not
necessarily included in the charged offense under the elements test or the
accusatory pleading test. She argues, however, that the court should use the
“expanded accusatory pleading test” employed in People v. Ortega (2015) 

240 Cal. App. 4th 956

, 967 (Ortega), which would permit consideration of the
evidence at the preliminary hearing to find the proposed crimes to be lesser
included offenses.
      We question the viability of this “expanded” test. Published cases since
Ortega have uniformly declined to follow it and instead apply the accusatory
pleading test without regard to evidence from the preliminary hearing. (See,
e.g., People v. Alvarez (2019) 

32 Cal. App. 5th 781

, 787-790; People v. Munoz

31 Cal. App. 5th 143

, 157-158; 

Macias, supra

, 26 Cal.App.5th at pp.
963-965.) These cases reason that Ortega is inconsistent with the Supreme
Court’s decision in People v. Montoya (2004) 

33 Cal. 4th 1031

, which requires
courts to “consider only the [accusatory] pleading” in determining whether a
charged offense includes a lesser included offense under the accusatory
pleading test. (Id. at p. 1036, italics omitted; see, e.g., 

Munoz, supra

, at p. 156
[“The Supreme Court has indicated repeatedly . . . that when applying the
accusatory pleading test to determine whether one offense is necessarily
included in another, courts do not look to evidence beyond the actual pleading
and its allegations regarding the purported greater offense.” We need not

resolve this issue, however, because the failure to instruct on the lesser
offenses is harmless.
        Here, there is no likelihood the jury would have convicted defendant of
the lesser offenses but not the charged offense. To convict defendant of either
of these offenses but not the charged offense, the jury would have had to
credit defendant’s testimony that she had not seen the shooting and thus did
not know that Harry had committed a felony, but nonetheless made an
intentionally false statement to the police or intentionally destroyed evidence
by deleting the video. No evidence was presented to support such a theory.
        4. Ineffective Assistance of Counsel
        In order to prevail on a claim of ineffective assistance of counsel,
defendant must show that (1) counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms, and (2)
there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have been different. (Strickland v. Washington (1984)

466 U.S. 668

, 687-688, 693-694; People v. Ledesma (1987) 

43 Cal. 3d 171

, 214-
        Defendant contends her counsel’s performance was deficient in three
specific respects. Initially, she faults her attorney for failing to call an expert
witness on eyewitness fallibility. As defendant notes, the record shows that
counsel intended to call such an expert but ultimately did not. When the
matter was raised before defendant’s testimony, the court deferred ruling on
the admissibility of the expert’s testimony noting, “You are really talking
about the mental processes of a particular individual and that would be Ms.
Miller. She has not testified yet. So I, you know, within reason don't know
what she’s exactly going to say. Nor would this witness.” Defense counsel
rested his case after defendant’s testimony without calling the expert. For the

reasons discussed above, the expert’s testimony had no relevance to what
defendant knew when she told the officer that Paul had initiated the violence.
She did not misperceive that particular event. Rather she claimed to have not
seen it at all. Accordingly, defendant was not prejudiced by any purported
failure to call the expert witness.
      Next, defendant faults counsel for failing to introduce Harry’s medical
records from the January 2017 incident to corroborate her testimony
regarding his broken back. Again, the record shows that counsel was
prepared to introduce this evidence, but did not do so.5 Defendant argues the
absence of this evidence was relevant because it allowed the prosecutor to
question her credibility. She notes that in closing argument, the prosecutor
questioned the severity of Harry’s injury after the assault. The prosecutor
argued, “Where is the evidence that there was a broken back? . . . Where is
that evidence? If it really happened, Paul . . . really broke his back [versus]
something else, okay, where was that evidence?” The prosecutor did not,
however, dispute that the incident occurred, only the extent of Harry’s injury.
Given that this attack on defendant’s credibility was limited and not directly
related to the critical question of whether she saw the shooting, any potential
error was harmless.
      Finally, defendant argues her attorney should have objected to the
prosecutor’s questions to the police officer regarding defendant’s consultation
with her attorney before she consented to his search of her car for the

      5 Prior to trial, counsel argued the records were admissible to show
“how [defendant] sees the incident between her husband and [Paul], how she
sees her husband as the victim, the person that’s fragile and delicate, the
person that’s been attacked before by [Paul], the person that she sees being
attacked again by [Paul].” As discussed above, evidence explaining why or
how she misperceived what happened during the shooting had no relevance
after she testified she had not actually seen the shooting.

camera. She argues that the prosecutor’s introduction of this evidence
penalized her “for considering her 4th Amendment rights and exercising her
5th and 6th and 14th Amendment rights to consult counsel.” She argues that
the failure to object was prejudicial because it allowed the prosecutor to
argue in closing that if defendant believed Harry had done nothing wrong,
she would not have responded to the officer’s request for the camera by
asking to speak to an attorney. Specifically, the prosecutor argued: “[S]he
wants to talk to an attorney so she calls a criminal defense attorney. They
want to say . . . they decide to call a personal injury attorney is what they
want you to believe for the January 17th, 2017, incident. But we now know
that the attorney she called is her husband's criminal defense attorney. So
she’s okay after speaking with the criminal defense attorney, which by the
way, [if] you are a victim, why would you call a criminal defense attorney?
Why would you do that? She decides to give conditional consent. So what’s
that mean? Well, that allows for that argument later on, I was under duress.
This person was being very mean to me. I only gave this consent because they
threatened me with a search warrant, and then that allows Fourth
Amendment search and seizure litigation, and then maybe that [camera] gets
thrown out.”
      The Attorney General argues that it is “unclear” whether the
prosecutor’s admission and use of this evidence of was permissible. We
disagree. The Attorney General has not cited, nor have we found, any case in
which the use of defendant’s pre-arrest consultation with an attorney was
held to be admissible for the sole purpose of establishing defendant’s guilt. To
the contrary, courts have consistently held that it is improper to infer guilt
from defendant’s consultation with an attorney. (See Bruno v. Rushen (9th
Cir. 1983) 

721 F.2d 1193

, 1194 [“in no situation in a criminal trial . . . do we

feel the mere act of hiring an attorney is probative in the least of the guilt or
innocence of defendants”]; United States v. McDonald (5th Cir. 1980) 

620 F.2d 559

, 564 [“It is impermissible to attempt to prove a defendant's guilt by
pointing ominously to the fact that he has sought the assistance of counsel.”].)
      In United States ex rel. Macon v. Yeager (3d Cir. 1973) 

476 F.2d 613

(Macon), the court held that the prosecutor’s use of a defendant’s pre-arrest,
pre-Miranda6 consultation with an attorney to infer guilt violated the
defendant’s right to counsel. In that case, the prosecutor asked in closing
argument whether defendant’s consultation with an attorney after he shot
the victim was an “act of innocence?” (Id. at p. 614.) The court reasoned that
insofar as the prosecutor sought to raise in the minds of the jurors an
inference of guilt, the introduction of the evidence and the prosecutor’s
argument penalized defendant for the exercising his constitutional right to
counsel. (Id. at p. 615.) More recently, in Marshall v. Hendricks (3d Cir. 2002)

307 F.3d 36

, 76, the Third Circuit relied on its decision in Macon to find
improper a prosecutor’s argument that if defendant were innocent, he would
not have “run out and hire[d] an attorney.” (See also United States v.

McDonald, supra

, 620 F.2d at p. 564 [attorney’s presence during search of
defendant’s home was not admissible to infer guilt].)7

      6   Miranda v. Arizona (1966) 

384 U.S. 436

      7 The Attorney General’s citation to cases involving pre-Miranda
silence to question the constitutionality of the use of defendant’s request for
counsel in this case is not persuasive. As noted by the Attorney General, the
constitutionality of use of pre-Miranda silence to prove guilt is unclear.
(Compare United States v. Oplinger (9th Cir. 1998) 

150 F.3d 1061

, overruled
on a different ground in United States v. Contreras (9th Cir. 2010) 

593 F.3d 1135

, 1136 [comment on defendant’s pre-arrest, pre-Miranda silence does not
violate the Fifth Amendment’s privilege against self-incrimination]; United
States v. Zanabria (5th Cir. 1996) 

74 F.3d 590

, 593 [same]; United States v.

      Contrary to the Attorney General’s argument, defense counsel’s failure
to object cannot be understood as a reasonable tactical decision. (People v.
Jackson (1989) 

49 Cal. 3d 1170

, 1188 [“When a defendant makes an
ineffectiveness claim on appeal, the appellate court must look to see if the
record contains any explanation for the challenged aspects of representation.
If the record sheds no light on why counsel acted or failed to act in the
manner challenged, ‘unless counsel was asked for an explanation and failed
to provide one, or unless there simply could be no satisfactory explanation’
[citation], the contention must be rejected.”]; People v. Kelly (1992) 

1 Cal. 4th 495

, 520 [“A reviewing court will not second-guess trial counsel's reasonable
tactical decisions.”].) There is no conceivable downside to objecting in this

Rivera (11th Cir. 1991) 

944 F.2d 1563

, 1568 [same] with Combs v. Coyle (6th
Cir. 2000) 

205 F.3d 269

, 283 [rejecting above cases and agreeing with the
reasoning expressed in the opinions of the Seventh, First, and Tenth Circuits
that the use of a defendant’s prearrest silence as substantive evidence of guilt
violates the Fifth Amendment’s privilege against self-incrimination]; see also
People v. Tom (2014) 

59 Cal. 4th 1210

, 1225 [acknowledging split in federal
authority but holding that “[e]ven assuming the privilege against self-
incrimination protects against evidentiary use of postarrest silence in this
context, . . . that the privilege ‘is not self-executing’ and ‘may not be relied
upon unless it is invoked in a timely fashion’ ”]; People v. Waldie (2009) 

173 Cal. App. 4th 358

, 365-366 [indicating its inclination to accept defendant's
arguments that pre-arrest silence is protected by privilege against self-
incrimination but finding any error harmless].) As explained in People v.
Tom, however, even assuming the constitution did not prohibit the admission
and use of defendant’s consultation with her attorney in this case, the
evidence remains subject to objection under Evidence Code section 352. (See
People v. 

Tom, supra

, 59 Cal.4th at p. 1236 [“Our conclusion that use of a
defendant’s postarrest, pre-Miranda silence is not barred by the Fifth
Amendment in the absence of custodial interrogation or a clear invocation of
the privilege does not mean that evidence overcoming those constitutional
hurdles would necessarily be admissible under the Evidence Code.”].)
Evidence that a defendant consulted with an attorney is not at all probative
of the defendant’s guilt but is highly prejudicial.

case. Accordingly, counsel’s failure to object was deficient. It was, however, as
discussed below not prejudicial.
      Defendant’s credibility was so thoroughly impeached by other evidence
that there is no reasonable likelihood that she would have been acquitted had
this evidence been excluded. Throughout defendant’s cross-examination, each
time she was asked about a discrepancy in her testimony and what was
shown on a video recording, defendant claimed that she had not watched the
video because it was too upsetting. When asked if she watched when the
video was shown in the courtroom, she responded, “I was here in the
courtroom. I was not attentive.” As discussed above, defendant claimed she
could not see what led up to the shooting because she was watching through
her camera screen and that after the first shot, she remembered only parts of
what happened. On cross-examination, she acknowledged, however, that in
her statement to the police she claimed to have been “watching” Paul beat
her husband with a shovel. Video taken from Paul’s phone and Paul’s
security camera show that defendant was recording the video from less than
a car’s length away. Photographs show her with the camera down staring
directly at Harry and Paul just after the shooting occurred and Harry is still
standing and continuing to shoot. On cross-examination she claimed that she
was only looking at Paul and not Harry despite the fact that Harry was
standing between her and Paul. It is simply inconceivable, given the video
evidence, that defendant did not see the shooting and believed that her
husband had been knocked to the ground before he fired his gun.
      Similarly, defendant testified in great detail that she deleted the video
from the camera in the hospital after hearing Paul’s voice. She explained, “I
opened [the video]. And it started and I heard [Paul’s] voice, he has the
Brooklyn accent, it’s very strong, it is very distinct. I knew it was him. And I

wanted to stop it.” Paul, however, does not speak on that video. When the
video was played for defendant on cross-examination and she was asked to
identify the voice that made her turn the video off, she claimed, “That’s it. I
started hearing that wind and that noise and that’s it. I don't know who is
talking, but that’s it.” In conclusion, given defendant’s overall lack of
credibility, counsel’s failure to object to the evidence regarding her
consultation with an attorney was not prejudicial.
      The judgment is affirmed.

                                             POLLAK, P. J.




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