THE PEOPLE, Plaintiff and Respondent, v. ROBERT STEWART REDMOND, Defendant and Appellant, 29 Cal. 3d 904

Opinion RICHARDSON, J. Defendant appeals from his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)). He was sentenced to four years in prison and asserts that his Fourth and Fifth Amendment rights were violated and that multiple procedural errors occurred during his trial. We find no reversible error and will sustain his conviction. The offense in question involved a stabbing incident that occurred in Berkeley shortly after 3 a.m. on May 1, 1978.

Defendant and an acquaintance, Shubert, had indulged in an extended and heavy drinking bout during which beer, wine and whiskey were consumed in the garage adjacent to defendant’s mother’s residence. At some point Shubert was cut below the left lower rib in a downward direction toward the abdomen and defendant does not deny that he held the knife when it entered the victim’s body. The People charge that the blow was intentional while defendant insists that it was accidental.

Shubert’s version was that for no disclosed reason, and while in the garage, defendant stabbed him; he left the garage and was accompanied by defendant to the kitchen of the mother’s nearby residence; he then walked three-quarters of a block to a pay telephone and reported the incident.

Defendant said that the stabbing occurred in the kitchen when Shubert stumbled against him and defendant, acting reflexively, raised his hand and the knife which he had been holding “went up” into the victim; in order to obtain his car keys preparatory to taking the victim to the hospital, defendant went into his bedroom and deposited his knife, and during that time Shubert left and defendant was unable to locate him. When police were summoned to the scene, defendant told his mother not to let them search the residence without a warrant.

However, she voluntarily permitted the officers entry and gave them the key to the garage. An inspection of the garage revealed blood on the floor and on a counter. We consider, sequentially, the two assertions of constitutional error and certain claims of evidentiary flaws in defendant’s trial. The Fourth Amendment When the officers came to his mother’s residence, defendant urged her not to permit the police entry and search without a warrant. During his closing argument, the prosecutor several times suggested that defendant’s warning to his mother evidenced a consciousness of guilt.

The trial court refused a defense request to instruct the jury that: “It is the constitutional right of every citizen to voice objection to the warrantless search of his or her residence and you must not draw any inference of guilt from the fact the defendant objected to the warrant-less search of his residence nor should this fact be discussed by you or enter in your deliberations in any way.” Defendant contends that, in combination, the prosecutor’s comments and the refusal of the cautionary instruction impermissibly infringed upon the exercise of his Fourth Amendment right to be free from an unreasonable search and seizure.

Initially, we note that it is not clear that defendant in fact had asserted his constitutional right to be free from unreasonable search and seizure. As to the entry and search of the residence generally, it is more accurate to say that defendant was urging his mother to assert her Fourth Amendment right. His interest was vicarious and indirect. Because she owned and occupied the residence her consent to the entry was sufficient. It was for the trial court to determine whose rights were being asserted and its implied finding, adverse to defendant, is supported by substantial evidence.

Moreover, the constitutional claim was waived because defendant did not object to the prosecutor’s comments during argument. As we recently observed in People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468], “[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm.

If it would, the contention must be rejected [citation] . ... ” We are persuaded by a review of the entire argument that the prosecutor’s references to defendant’s admonition to his mother were moderate in tone and import. They lacked significance when considered within the context of defendant’s admission that he held the weapon in question. Any harm arising therefrom could have been cured by a timely objection and admonition under our Green rationale.

The Fifth Amendment Approximately two months after the stabbing, and while then confined, defendant voluntarily revealed to his counsel that the weapon was in his bedroom. Defendant also disclosed this information to his fellow inmates at the Santa Rita facility. At trial, defense counsel asked defendant’s mother to locate the knife and she produced it, testifying on direct examination as to the circumstances of the discovery of the knife. In closing argument the two-month delay was stressed by the prosecution as evidence of guilt.

The court instructed the jury in accordance with California Jury Instructions Criminal (CALJIC) No. 2.62 that because defendant had elected to testify, “If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable.” Defendant argues that, together, the prosecutor’s argument and the jury’s instruction violated his Fifth Amendment right against self-incrimination. (Cf., Griffin v.

California (1964) 380 U.S. 609, 614 [14 L.Ed.2d 106, 109-110, 85 S.Ct. 1229].) We are unable to agree for several reasons. Again, defendant did not object at trial to the prosecutor’s comments, and under Green it is when an appropriate objection and admonition would not have cured the harm that “the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution.” (People v.

Green, supra, 27 Cal.3d 1, 34.) “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’ [Citations.]” (Id., at p. 27.) We are persuaded that an objection and prompt admonition would have repaired any damage resulting from the brief comments. When a defendant elects to testify in his own defense a comment on his prior muteness does not necessarily violate his privilege against self-incrimination. (Jenkins v.

Anderson (1980) 447 U.S. 231, 238 [65 L.Ed.2d 86, 94-95, 100 S.Ct. 2124]; Raffel v. United States (1926) 271 U.S. 494, 496, 499 [70 L.Ed. 1054, 1057-1059, 46 S.Ct. 566]; People v. Preston (1973) 9 Cal.3d 308, 317 [107 Cal.Rptr. 300, 508 P.2d 300]; People v. Perez (1967) 65 Cal.2d 615, 621 [55 Cal.Rptr. 909, 422 P.2d 597].) Moreover, defendant’s conduct with reference to the location of the knife hardly reflects his “silence.” The information was revealed to his attorney, mother, and fellow inmates at Santa Rita.

Defendant’s mother, responding as a defense witness to a question on direct examination, presented at trial for the first time the circumstances of the discovery of the knife. The defense having raised the issue, presumably to negate consciousness of guilt, the evidentiary door was thereby opened and the People were entitled by reasonable cross-examination to develop the circumstances more fully and to argue reasonable inferences therefrom.

Similarly, we find no merit in defendant’s contention that because at trial he was not asked to explain or deny the adverse evidence against him, the CALJIC No. 2.62 instruction was improper and violated both his federal and state constitutional privileges against self-incrimination. The scope of his direct examination was a tactical trial choice of his counsel.

The record contained evidentiary support for the instruction including defendant’s delay for two months in disclosing the location of the knife, his failure to summon an ambulance or assist or transport Shubert for medical assistance, and the variance between the description of Shubert’s wound as “downward and inward” and defendant’s version of an “upward” thrust caused by Shubert’s fall on the knife. These matters, in our view, were the proper subject of discussion by the prosecutor during his closing argument.

We have said that when a defendant testifies in his own behalf he thereby waives his self-incrimination privilege under both federal and state Constitutions as to matters within the scope of permissible cross-examination (People v. Perez, supra, 65 Cal.2d at pp. 620-622; People v.

Ing (1967) 65 Cal.2d 603, 610-611 [55 CaLRptr. 902, 422 P.2d 590]) and that when he denies commission of the crime a defendant thereby renders “very wide” the permissible scope of his cross-examination. (Ing, supra, at p. 611.) It is entirely proper for a jury, during its deliberations, to consider logical gaps in the defense case, and the jury is reminded of this fact by the instruction at issue. The Fifth Amendment does not prevent such a result.

Exclusion of Defense Evidence After describing his actions following the stabbing, his counsel asked defendant why he did not make further efforts to “find” the victim. The prosecutor’s objection was sustained on the ground of irrelevancy. Defendant claims error, arguing that his answer could have established that the stabbing was accidental and that the ruling denied him his right to testify and present evidence. The question’s relevance, however, was marginal. Defendant had already testified at length regarding his activities following the stabbing, including his efforts to assist the victim.

The trial court reasonably could have concluded that further testimony as to defendant’s efforts to locate Shubert would be cumulative, remote, confusing or misleading. (See Evid. Code, § 352.) We conclude that the trial court in making its evaluation ruling did not abuse its discretion. Moreover, if such an error had occurred, it would not warrant reversal because it-does not appear that “The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.” (Evid. Code, § 354, subd. (a); see People v.

Demond (1976) 59 Cal.App.3d 574, 588 [130 Cal.Rptr. 590]; People v. Thomas (1970) 3 Cal.App.3d 859, 864 [83 Cal.Rptr. 879].) Limitation on Cross-examination Defendant contends that in two respects he was improperly limited in his cross-examination of the victim, Shubert. Defendant sought to establish from Shubert that in the past when Shubert drank he frequently “blacked out” and had no recall of events. Defendant’s offer of proof included records of Shubert’s previous commitments for alcoholism and a record of his prior arrest for intoxication and indecent exposure.

Cross-examination of Shubert based on the medical records was denied because of the psychotherapist-patient privilege (Evid. Code, § 1012) and both the medical and arrest records were excluded because the events recorded were too remote and the risk “of undue prejudice ... or of misleading the jury” outweighed any probative value (Evid. Code, § 352). Defendant was permitted, however, to cross-examine Shubert extensively on his problems with alcohol and blackouts.

Defendant also sought to establish that Shubert had applied for “victim’s compensation.” The apparent purpose of this testimony was not only to establish a false motive for identifying defendant, but also to develop a discrepancy between Shubert’s failure to identify his assailant shortly after the stabbing and his subsequent identification of defendant as his attacker.

However, the defendant’s identity as the holder of the knife was not disputed and the court properly barred the cross-examination as irrelevant. “While cross-examination to test the credibility of a prosecution witness is to be given wide latitude, its control is within the discretion of the trial court, and the trial court’s exclusion of collateral matter offered for impeachment purposes has been consistently upheld.” (People v. Flores (1977) 71 Cal.App.3d 559, 567 [139 Cal.Rptr. 546]; citations omitted.) Here, as in Flores, “Defendant was not denied the opportunity to place the witness in proper perspective.

His credibility was thoroughly questioned, and the weight of his testimony was put to a proper test. The jury was afforded full opportunity to appraise the witness and his testimony.” (Id., at p. 566.) Additional Evidentiary Rulings We find no abuse of the trial court’s discretion in its evidentiary rulings pertaining to Shubert’s conflicting statements as to the identity of his assailant. It was undisputed at trial that defendant held the knife, the only issue being whether the contact with the victim was intentional or accidental.

Claim of Sentencing Error Defendant argues that following his conviction the court erred in considering defendant’s perjury as a reason for sentencing him to the upper term of four years for violation of

section 245, subdivision (a). In imposing the upper term, the court gave the following specific reasons for its action: defendant inflicted serious injuries on Shubert, had a lengthy arrest record and a poor adjustment to past probation, lied to the jury, had failed to control his alcohol problem, expressed no remorse for his conduct, asserted no mitigating factors, and was a potentially dangerous person.

A trial court’s conclusion that a defendant has committed perjury may be considered as one fact to be considered in fixing punishment as it bears on defendant’s character and prospects for rehabilitation. (See In re Perez (1978) 84 Cal.App.3d 168, 171 [148 Cal.Rptr. 302].) In an effort to appraise a defendant’s character “‘a fact like the defendant’s readiness to lie under oath before the judge who will sentence him would seem to be among the more precise and concrete of the available indicia.’ United States v. Hendrix, 505 F.2d 1233, 1236 (1974).” (United States v.

Grayson (1978) 438 U.S. 41, 51 [57 L.Ed.2d 582, 590, 98 S.Ct. 2610].) The trial court’s explanation was specific in its reasons for sentence, and the court’s conclusion that defendant gave perjured testimony was properly considered in assessing both defendant’s character and his prospects for rehabilitation. Defendant claims that the trial court erred in failing to give him the work-time and good-time credit accumulated in county jail prior to his prison commitment, all as contemplated by Penal Code sections 2900.5 and 4019. Recently in People v.

Sage (1980) 26 Cal.3d 498, 507-508 [165 Cal.Rptr. 280, 611 P.2d 874], we concluded that in similar cases it was unnecessary to return such defendants to the trial court for re-sentencing. Rather, we anticipate that the Department of Corrections will implement the appropriate administrative procedures to ascertain defendant’s entitlement to such credits. Having carefully reviewed the whole record before us in the light of defendant’s claims, we are persuaded that any errors, singly or in combination, were harmless beyond a reasonable doubt (Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]) and that because it is not reasonably probable that a result more favorable to the defendant “would have been reached in the absence of the error" (People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243]), no miscarriage of justice has occurred (Cal. Const., art. VI, § 13). The judgment is affirmed. Tobriner, J., Mosk, J., and Fainer, J., concurred. Assigned by the Chairperson of the Judicial Council