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People v. Castaneda6/27/2002
a's silence an admission.
Nonetheless, in the context of this case, the adoptive admission instruction should not have been given because the defendant apparently was relying on his constitutional right to remain silent when he refused to answer some of Officer Granado's questions. In People v. Riel (2000) 22 Cal.4th 1153, 1189, the California Supreme Court, discussing the adoptive admission exception to the hearsay rule, stated: " `If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.' " (Italics added.) In People v. Medina (1990) 51 Cal.3d 870, 891, the court recognized that "the use of the adoptive admissions rule may be unwarranted in some situations, including some custodial interrogations."
Here, the Fifth Amendment privilege was applicable and it appears that Castaneda was asserting his right to remain silent. (Coppola v. Powell (1st Cir. 1989) 878 F.2d 1562, U.S. ex rel. Savory v. Lane (7th Cir. 1987) 832 F.2d 1011; U.S. v. Burson (10th Cir. 1991) 952 F.2d 1196; Combs v. Coyle (6th Cir. 2000) 205 F.3d 269; compare People v. Oplinger (9th Cir 1998) 150 F.3d 1061.) Defendant was under detention at the time of the inquiry and was being questioned by a police officer. While he had not yet been taken into custody or read his Miranda rights, the fact remains that he was being detained by a police officer and being asked questions which he certainly could understand to be accusatory. Under the circumstances, it is reasonable to infer that defendant was relying on his right to remain silent when, as Officer Granado testified, he "wouldn't respond" to his questions. Thus, giving the adoptive admission instruction was error because it told the jury that defendant's silence could be considered against him as evidence of guilt, and permitted the jury impermissibly to infer defendant's guilt from the exercise of his constitutional right to remain silent.
I too, however, find the error harmless for the reasons expressed in the lead opinion, and thus agree that the conviction must be affirmed.
Pollak, J.
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