Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-499867
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
A jury convicted defendant Christopher John Cunningham of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), battery with serious bodily injury (§ 243, subd. (d)), and false imprisonment (§ 237), and found true an allegation that he had personally inflicted great bodily injury (§12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true an on-bail allegation (§ 12022.1), a prior serious felony conviction, a prior prison term, and two prior strikes. He was sentenced to a term of 21 years, plus an additional 4 years 4 months in connection with a separate case.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends his conviction in this case must be reversed because the trial court committed multiple errors. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Prosecution’s Case
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could find. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
David Ortiz met Mike Williams about two or three months before the incident that led to charges being filed against defendant. Williams and Ortiz consumed methamphetamine together. Ortiz met defendant, whom he knew as “Riot,” at Williams’s house about a month before the crime occurred.
About a week prior to the offense, Ortiz and Williams had a disagreement concerning the purchase of a trailer. Williams had helped Ortiz locate a trailer that was for sale and had offered to broker the sale for $700. After learning that Ortiz had purchased the trailer directly from the seller for $500, Williams became angry and demanded a $200 finder fee. Ortiz did not pay him the fee, but told him they would work something out.
A. The Attack on Ortiz
In November 2006, Eli Smith was living in a garage that had been converted into an apartment. On November 10, 2006, around 8:00 or 9:00 p.m., Ortiz called Smith, who had previously expressed an interest in purchasing a pressure washer that Ortiz had acquired. Ortiz offered to bring the washer to Smith’s residence. When Ortiz arrived, Smith was there with two young adult females. Ortiz and Smith smoked some methamphetamine while they negotiated a deal for the washer. Ortiz then went to the kitchen area to get a soda.
Just prior to being struck, Ortiz heard some cars drive up and then heard the door to the apartment “burst open.” He could tell that people had entered the apartment “rapidly,” but he was not concerned. As he reached into the refrigerator, some people came into the kitchen area. Ortiz heard a scream, which caused him to turn around. As he turned, he was struck on his forehead with a metal object, possibly a pipe. After the first blow, he fell to one knee and tried to cover his head. He was hit with the pipe on the back of his head and neck, as well as on his back, shoulder, and left hand. He also was punched and kicked. More than one person participated in the attack.
Ortiz panicked when his attackers threatened to kill him and began discussing duct tape. Ortiz noticed he was bleeding. He believed he was going to die if he did not do something. He summoned his strength and charged at one of his attackers, then turned around and dove backwards through a window. When he landed on the ground outside, Williams grabbed him and said, “You did me dirty.” Ortiz understood that Williams was referring to the deal for the trailer. Ortiz broke free, ran to a residence across the street, and yelled for the neighbor to call 911.
A physician testified that Ortiz suffered a concussion, lacerations to the head and wrist, a punctured lung, a broken neck, and scapular fractures. Initially, his injuries were deemed potentially life threatening. He was hospitalized for five days. His injuries were consistent with having been hit multiple times with a hard object.
B. Ortiz Identifies Defendant
Ortiz testified that he believes Deputy Brandon Austin saved his life. Austin was the first officer to arrive at the scene. While Ortiz was in the hospital, Austin came to question him about the beating. At that time, Ortiz was taking a lot of morphine for pain. At trial, Ortiz verified that his signature appears on photographic lineup instructions, though he testified that he did not remember whether Austin showed him photographs while he was in the hospital. He also verified that his initials appear under photographs of defendant and Williams. He testified that when he was in the hospital he was aware of who had assaulted him.
Austin testified that when he first interviewed Ortiz in the hospital, Ortiz was in and out of consciousness. He told Austin that he was in Smith’s kitchen when he heard a vehicle pull up. Suddenly, he was being hit over the head with an object. Three or four people were involved in the beating. He told Austin he was not sure who beat him, but that he would be killed if he told Austin who did it. The next day, Austin met with Ortiz in the hospital and Ortiz told him defendant was his primary attacker. He also named “Michael Winters” and “Tony” as suspects. Austin prepared photo lineups for defendant and for Williams, who lived at the address Ortiz had given for Michael “Winters.” Ortiz positively identified both defendant and Williams. Apart from Ortiz’s identification, Austin did not find any evidence connecting defendant to the crime.
C. Ortiz Invokes the Fifth Amendment
After testifying about his personal background, including his history of drug use, Ortiz invoked his Fifth Amendment right not to testify concerning facts relating to a pending criminal matter. Outside the presence of the jury, the trial court ruled it would not extend a grant of judicial immunity to Ortiz, and that his testimony would be struck if he continued to exercise his right against self incrimination. The court noted that the judge at defendant’s preliminary hearing had ruled that the transcript could not be used at trial if Ortiz became unavailable because Brady material had not been provided to the defense in a timely manner. At that point, the prosecution offered Ortiz immunity pursuant to section 1324.
Brady v. Maryland (1963) 373 U.S. 83 [requiring the government to disclose exculpatory evidence to the defendant on its own motion].
Ortiz resumed his testimony, admitting that he was currently on felony probation and that in August 2006 he had been convicted of lying to a police officer. He also had pled guilty to receiving stolen property in December 1991. Under the grant of immunity, he admitted he had pawned property that had been stolen from a man named David Key. He also admitted he knew he could have been arrested for having done so, and that an arrest would have violated his probation. He also stated he had spoken with a detective a month before defendant’s preliminary hearing and that he was told charges would not be brought against him in the Key matter because an offense could not be proven.
D. Ortiz Refuses to Confirm His Identification of Defendant
Ortiz testified he knew who had attacked him, but that he did not want to identify the perpetrators in court because he feared for his life and for his children. He admitted he had identified his attackers before, at a time when he was in the witness protection program. He was later kicked out of the program after he was caught smoking a cigarette in the hotel room that he was staying in. At the time of trial, he did not trust the district attorney’s office and he did not want to testify. The only reason he came to court was because if he had refused he could have been found in contempt, which might have resulted in a violation of his probation.
Ortiz acknowledged that when he testified at the preliminary hearing he took an oath to tell the truth, and he admitted he told the truth as he saw it at the time. However, when the prosecution asked him to verify that he had identified defendant at the preliminary hearing as one of his attackers, Ortiz responded he could not answer out of fear for his safety. When asked by defendant’s counsel if the real reason he didn’t want to answer was that the story he had told earlier was not true, Ortiz answered “no.” An officer with the district attorney’s office testified that during his preliminary hearing testimony, Ortiz twice turned toward Williams, made eye contact, smiled, and nodded his head.
II. The Defense
Lisa Roberge testified that on November 10, 2006, starting around 7:30 or 8:00 p.m., she was helping her former boyfriend Michael Warren move into his new residence. Defendant and his girlfriend Isabella were also there, moving into the attached converted garage. Around 10:00 p.m., they told Roberge that they were going to the garage to watch a movie and go to sleep. Roberge was at the residence until early the next morning. During that time, she did not see defendant leave. She would have noticed if defendant had left, because the house’s only exit was blocked with possessions.
Mark Danzart testified that after his arrest in January 2007, he told Detective Chris Vivian that in October 2006 he and Ortiz had entered David Key’s house one morning while Key was asleep. Ortiz threw a blanket over Key and struck him with a flashlight. Danzart then detained Key while Ortiz went through the house removing items, including musical instruments. Ortiz told Danzart that Key owed him money and had sold him a stolen van. On cross-examination, Danzart admitted he is a friend of defendant and that he knew defendant had been arrested for assaulting Ortiz when he made his statements to Vivian.
Vivian testified that he interviewed Ortiz in January 2007. Ortiz told Vivian that he had purchased a van from Key in exchange for methamphetamine and cash. Ortiz admitted that he had knowingly possessed stolen property, namely, a guitar and a camera, but he denied any involvement in the Key robbery.
The parties stipulated that if called to testify, Deputy Joe Gossett would say that he spoke with Ortiz at the hospital. Ortiz told him Williams was one of his main assailants and that Williams was the person who had hit him with the pipe.
III. The Verdict and Sentencing
The jury found defendant guilty of assault with a deadly weapon, battery with serious bodily injury, and false imprisonment, and found true the allegation that he had personally inflicted great bodily injury. In a bifurcated proceeding, the trial court found the on-bail allegation to be true, along with a prior serious felony conviction, a prior prison term, and two prior strikes. After another criminal matter was resolved against him, defendant was sentenced to serve a total of 25 years 4 months in state prison. This appeal followed.
DISCUSSION
I. Right to Confrontation
Defendant contends the trial court committed prejudicial error under the state Constitution and under the Sixth Amendment of the federal Constitution, by denying him the right to confront and cross-examine Ortiz. We are not persuaded.
“The Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘ “to be confronted with the witnesses against him.” ’ [Citation.] ‘The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, [citation], “means more than being allowed to confront the witness physically.” [Citation.] Indeed, “ ‘[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” [Citation.]’ [Citation.] ‘[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed,... to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.’ [Citation.]” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137.)
However, “The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” (Delaware v. Fensterer (1985) 474 U.S. 15, 21–22.) Further, there is no Sixth Amendment violation unless the prohibited cross-examination “ ‘might reasonably have produced “a significantly different impression of [the witness’s] credibility....” [Citation.]...’ ” (People v. Belmontes (1988) 45 Cal.3d 744, 780, quoting from People v. Rodriguez (1986) 42 Cal.3d 730, 751, fn. 2.) With this background in mind, we consider whether the trial court’s actions violated defendant’s Sixth Amendment rights.
On the eve of trial, the prosecution notified the court that Ortiz might refuse to answer questions regarding identification. The court had already appointed a conflict attorney to advise Ortiz because he previously admitted to consuming methamphetamine on the night of the assault. After meeting with Ortiz, his attorney told the court that Ortiz would refuse to answer any questions concerning the identities of his assailants, even if faced with a charge of contempt.
The trial court held an Evidence Code section 402 hearing in which Ortiz was examined. He refused to identify his attackers. At the conclusion of this testimony, the court found Ortiz had been “purposefully evasive” and untruthful in testifying that he did not recall having made identifications when he was in the hospital. Based on this finding, the court ruled that the identifications would be admissible as prior inconsistent statements because, under Evidence Code section 1235, a deliberately evasive response is deemed an implied denial. The court made the same finding with respect to Ortiz’s identification of defendant at the preliminary hearing, ruling that the transcript could be used for impeachment purposes. The court noted the testimony at the hearing was made under oath, and that Ortiz had been cross-examined by defendant’s counsel. The court also indicated that it would not deem Ortiz an unavailable witness.
Evidence Code section 402, subdivision (b), provides, in part: “The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury....”
Evidence Code section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Section 770 requires that the witness be given an opportunity to explain or deny the prior statement at some point in the trial. Prior inconsistent statements entered into evidence under Evidence Code section 1235 are admissible both to impeach credibility and to prove the truth of the matter asserted. (People v. Hovarter (2008) 44 Cal.4th 983, 1008–1009.)
Our Supreme Court has noted that “the use of depositions and former testimony does not infringe upon the constitutional right of confrontation as long as there has been due cross-examination.” (People v. Rojas (1975) 15 Cal.3d 540, 548.)
Defendant insists that the prosecution should have been barred from calling Ortiz because it chose not to pursue a finding of contempt when he refused to identify defendant at trial. This claim fails. While it is true that trial courts should undertake coercive measures before finding that a reluctant witness has become unavailable (see, e.g., People v. Bunyard (2009) 45 Cal.4th 836, 848–849), in the present case the court explicitly declined to make a finding of unavailability. Defendant offers no authority for the proposition that prosecutors are required to initiate contempt proceedings against available noncooperative witnesses.
Defendant also claims that where the sole issue at trial is identification, a witness’s refusal to testify on that issue amounts to a violation of the confrontation clause. We disagree. Generally speaking, “ ‘the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ [Citation.]” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall).) Ortiz was present at trial and testified extensively regarding the circumstances of the crime and his reasons for refusing to identify his attackers in court. With Ortiz in front of the jury, defendant was given a full and fair opportunity to probe and expose infirmities in his testimony through cross-examination. Defendant also had the opportunity to impeach Ortiz’s credibility with evidence of prior criminal conduct, including Danzart’s testimony concerning the robbery of David Key.
Defendant also claims the trial court denied him an opportunity to question Ortiz as to whether it was a fear of committing perjury, rather than a fear of retaliation, that motivated him to refuse to identify defendant at trial. Again, we discern no constitutional violation.
“As long as the cross-examiner has the opportunity to place the witness in his or her proper light, and to put the weight of the witness’s testimony and credibility to a reasonable test which allows the fact finder fairly to appraise it, the trial court may permissibly limit cross-examination to prevent undue harassment, expenditure of time, or confusion of the issues. [Citations.] Thus, a trial court’s exercise of discretion to exclude evidence does not implicate or infringe a defendant’s federal constitutional right to confront the witnesses against him, unless the prohibited cross-examination might reasonably have produced a significantly different impression of the witness’s credibility.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1386, italics omitted.)
Defense counsel asked Ortiz if it was true that he could be charged with perjury if his trial testimony differed from what he had testified to at the preliminary hearing. The court sustained the prosecution’s objection, finding the question to be argumentative. The cross-examination of the witness is always subject to a trial judge’s broad discretion to impose reasonable limits to preclude interrogation “based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” (Van Arsdall, supra, 475 U.S. 673, 679.) The court here did no more than it was permitted. It stayed well within the bounds of the “wide latitude” the Constitution affords it. (Ibid.) In any event, the jury had the opportunity to assess Ortiz’s demeanor and make its own determination as to whether his fear of retaliation was genuine. In sum, we find no violation of defendant’s rights under the confrontation clause.
II. Sufficiency of Evidence of Identity
A. Standard of Review
Defendant claims that the evidence presented at trial is insufficient to support the element of identity. This contention lacks merit.
It is well established that an out-of-court identification is sufficient to sustain a finding that an individual committed a crime. No corroborating evidence is required. (People v. Cuevas (1995) 12 Cal.4th 252, 277 (Cuevas), overruling People v. Gould (1960) 54 Cal.2d 621 (Gould).) Under Cuevas, the sufficiency of an out-of-court identification is determined under the substantial evidence test used to determine the sufficiency of other forms of evidence. In that regard, we “view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence—i.e., evidence that is reasonable, credible, and of solid value—to support the [trier of fact’s] finding” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1398), bearing in mind that it is the exclusive province of the trier of fact (here, the jury) to determine a witness’s credibility. (People v. Ochoa, supra, 6 Cal.4th 1199, 1206.) In particular, “[p]urported weaknesses in identification testimony of a single eyewitness are to be evaluated by the [trier of fact].” (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)
B. The Gould Test Does Not Apply
Before turning to the sufficiency of the evidence presented in the trial court, we address defendant’s attempt to revive the Gould test. As noted above, in Cuevas, supra, our state Supreme Court overruled its prior holding in Gould, supra, that an out-of-court identification was insufficient to sustain a conviction absent corroborating evidence linking the defendant to the crime. The court in Cuevas held: “[T]he sufficiency of an out-of-court identification to support a conviction should be determined under the substantial evidence test of People v. Johnson (1980) 26 Cal.3d 557, 578 that is used to determine the sufficiency of other forms of evidence to support a conviction.” (Cuevas, supra, 12 Cal.4th 252, 257.) The court explained that a reviewing court should assess the circumstances of the out-of-court identification to determine whether it is sufficiently probative to support the conviction. (Id. at pp. 269, 271, 274.)
Defendant contends that, notwithstanding the decision in Cuevas, supra, this court should apply the now discredited Gould test. Defendant also claims that the evidence is insufficient even under the Cuevas test, while arguing further that the Cuevas test is not a proper test under the confrontation clause of the Sixth Amendment and due process clause of the Fourteenth Amendment.
At the outset, we are not persuaded that the Gould test has any application to this case. While defendant devotes much of his briefing to making us aware of a number of jurisdictions that hold that out-of-court identifications admitted as prior inconsistent statements, standing alone, are insufficient to support a conviction, manifestly California is not one of those jurisdictions. It is not our role to apply laws that are contrary to the precedent set by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Alternatively, defendant claims the rationale for the Cuevas rule is inapplicable to the present case, and argues that our Supreme Court has not foreclosed this court’s ability to modify the rule as necessary to guarantee fairness and achieve justice. He claims a “new rule” is required for this situation, specifically, where a declarant refuses to testify on the sole material issue of identity, and expressly refuses to be cross-examined on the subject of identity, whether in the form of prior statements or current testimony. We decline to carve out the requested exception.
As the Attorney General notes, the facts of Cuevas are similar to the facts of the present case. In Cuevas, two gunmen approached a gathering of gang members and shot one of them. Shortly after the shooting, two of the victim’s fellow gang members identified the defendant, a member of a rival gang, as the shooter. At trial, however, both witnesses recanted their identifications. The Supreme Court nonetheless concluded substantial evidence supported the conviction of the defendant: “Although witnesses Gomez and Guzman both disowned their out-of-court statements when testifying at trial, the prosecution offered evidence that they had a motive to falsely recant their statements: Gomez and Guzman both testified that they believed it was wrong to accuse a member of a rival gang of committing a crime, and a gang expert testified that gang members disapprove of testifying against rival gang members and intimidate witnesses who initially cooperate with the police into changing their testimony.” (Cuevas, supra, 12 Cal.4th 252, 276.)
Here, Ortiz had a motive to refuse to confirm his identification, just as the witnesses had in Cuevas. He clearly and repeatedly testified as to his motivation. In view of that motive, the fact he refused to identify defendant at trial is not entirely surprising or remarkable. Accordingly, the circumstances of this case do not justify creating an exception to Cuevas.
C. Substantial Evidence Supports Identification
Defendant claims that his convictions should be reversed because the evidence of Ortiz’s pretrial identification is “insufficiently reasonable, credible and of solid value” to support a finding of guilt beyond a reasonable doubt. We disagree.
Under the substantial evidence test, “the probative value of the identification and whatever other evidence there is in the record are considered together to determine whether a reasonable trier of fact could find the elements of the crime proven beyond a reasonable doubt.” (Cuevas, supra, 12 Cal.4th 252, 274.) The court in Cuevas noted that “an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification....” (Id. at p. 265.) This is because, unlike an identification at trial, an out-of-court identification is made before “ ‘the suggestions of others and the circumstances of the trial may have intervened’ ” to influence a witness’s identification. (Ibid., citing Gould, supra, 54 Cal.2d 621, 626.) Factors which may affect the significance of the witness’s failure to identify the defendant at trial include“whether... the witness’s failure to confirm the identification arises from fear or intimidation.” (Id. at p. 268.)
The court in Cuevas also identified factors that may affect the reliability of an out-of-court identification. (Cuevas, supra, 12 Cal.4th 252, 267.) Under Cuevas, the following are factors that may attend and enhance the probative value of out-of-court identifications: “(1) the identifying witness’s prior familiarity with the defendant; (2) the witness’s opportunity to observe the perpetrator during the commission of the crime; (3) whether the witness has a motive to falsely implicate the defendant; and (4) the level of detail given by the witness in the out-of-court identification and any accompanying description of the crime.” (Ibid.)
Here, notwithstanding Ortiz’s refusal at trial to identify defendant as the person who assaulted him, the jury reasonably could have credited the testimony of Deputy Austin that Ortiz did identify defendant shortly after the attack. Moreover, the following factors militate in favor of the reliability of Ortiz’s out-of-court identification: He knew defendant for about a month prior to the incident, he was able to observe defendant during the attack, he identified defendant the day after the attack, presumably when events were fresh in his mind, and he corroborated that identification when he testified at the preliminary hearing. A reasonable jury could conclude that Ortiz was telling the truth both when he spoke to Austin and when he testified at the preliminary hearing, and that his failure to confirm the identification in court was due to his fear of possible retaliation. On this record, substantial evidence supported the finding that defendant committed the instant offense.
While it is true Ortiz was given morphine in the hospital, and had suffered a head injury, the jury was fully apprised of these facts as it evaluated the accuracy of Ortiz’s identification. Ortiz testified that when he was in the hospital he knew who assaulted him.
Further, there is no basis for defendant’s assertion that Ortiz delayed identifying defendant until the day after he arrived at the hospital in order to give himself an opportunity “to decide whether he could use his victim status to obtain a better and different life style through witness protection.” Nor is there any basis to his assertion that Ortiz was “motivated to blackmail the prosecution into arranging for his better life” when he confirmed the identification at the preliminary hearing. Simply put, while witness protection programs are designed to keep witnesses safe, it is not readily apparent to us that these programs create “better” lives for those who participate in them.
Additionally, we disagree with defendant’s assertion that Ortiz’s fear of testifying was unfounded, and that his invocation of the Fifth Amendment regarding the Key robbery violated defendant’s right to a fair trial. After having sustained such a severe beating, apparently over a mere $200 dispute, Ortiz’s fear of retaliation was not unreasonable. And Ortiz’s refusal to implicate himself in the Key matter did not result in any adverse consequences to defendant, who was fully able explore Ortiz’s involvement in that crime after the prosecution’s grant of immunity.
In sum, while it is true that there was no evidence implicating defendant other than statements made by Ortiz, substantial evidence supports the conviction. Ortiz identified defendant as his attacker on more than one occasion. His stated reasons for refusing to identify defendant at trial were plausible, and did not cast doubt on the veracity of his earlier identifications. Further, defendant’s alibi evidence was not compelling. It is not the function of this court to reweigh the evidence or redetermine issues of credibility. (People v. Ochoa, supra, 6 Cal.4th 1199, 1206.) Viewing the evidence in the light most favorable to the prosecution, as we must, we cannot say that a reasonable trier of fact would not have been entitled to find defendant guilty based on Ortiz’s pretrial identifications.
III. Alleged Error Under Evidence Code Section 1235
Defendant claims the trial court erred in finding Ortiz’s pretrial identifications to be admissible under Evidence Code section 1235. He argues the court’s finding that Ortiz was being deliberately evasive was tantamount to a finding that he had committed perjury. He further claims that the court’s failure to disqualify Ortiz as a witness amounts to “outrageous conduct that diminishes both the judiciary and criminal justice system.” We disagree.
In People v. Green (1971) 3 Cal.3d 981, a witness gave deliberately evasive trial testimony concerning how a large quantity of marijuana had come to be in his possession. The Supreme Court held that this testimony “must be deemed to constitute an implied denial” of the witness’s prior statements in which he admitted that the defendant had supplied him with the drugs. (Id. at p. 989.) Therefore the witness’s trial testimony was “materially inconsistent” with those prior statements, rendering them admissible under Evidence Code section 1235. (Green, supra, at p. 989.)
The rationale in Green has direct application to the present case. Ortiz’s trial testimony is not subject to being characterized as perjury any more than the deliberately evasive testimony that was at issue in Green. And, as the Attorney General notes, which statements were true and which were lies was for the jury to decide. (See California v. Green (1970) 399 U.S. 149, 160 [“The jury is alerted by the inconsistency in the stories, and its attention is sharply focused on determining either that one of the stories reflects the truth or that the witness who has apparently lied once, is simply too lacking in credibility to warrant its believing either story.”].) We find no error.
We also reject defendant’s contention that Ortiz’s trial testimony was not materially inconsistent with his prior identifications of defendant. A witness’s selective refusal to answer specific questions posed by the prosecutor may be deemed materially inconsistent with prior statements made by that witness to law enforcement officers. (In re Deon D. (1989) 208 Cal.App.3d 953, 962.)
For similar reasons, we take exception to defendant’s claim that the trial court erred in failing to disqualify Ortiz as a witness after it became apparent he would not testify on the subject of perpetrator identity. Citing to People v. Freeman (1971) 20 Cal.App.3d 488, defendant objects to the “anomaly in California law” that allows “perjury” to become the foundation for admitting evidence of a witness’s earlier unsworn statements, a practice he asserts violates a defendant’s rights under the Sixth Amendment and the Fourteenth Amendment. Defendant repeats this argument claiming that in allowing Ortiz to testify the court violated sections of the California Evidence and Penal Codes.
As the Attorney General notes, defendant did not ask the trial court to disqualify Ortiz as a witness. Accordingly, his claim that the court should have disqualified Ortiz is waived on appeal. (People v. Cudjo (1993) 6 Cal.4th 585, 622.) We also agree with the Attorney General that, regardless of waiver, defendant’s claim lacks merit. As noted earlier, “The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.” (Delaware v. Fensterer, supra, 474 U.S. 15, 21–22, italics added.) If a witness recants or tells different stories while on the stand, it is for the trier of fact to determine whether the witness is credible and which story, if any, to believe. (People v. Brown (1995) 35 Cal.App.4th 1585, 1597.)
Defendant further asserts the prosecution is to blame for Ortiz’s fear because it kicked him out of the witness protection program, suggesting that their offer of protection was merely a ruse to coerce Ortiz into testifying at the preliminary hearing. This claim is specious. The prosecution knew that if Ortiz became unavailable it would be barred from introducing his preliminary hearing testimony due to the Brady violation. Thus, the prosecution would have had little incentive to rescind its offer of protection before trial.
In a related context, in People v. Gunder (2007) 151 Cal.App.4th 412, the appellate court held that the admission of a witness’s prior statement after the witness feigned memory loss at trial did not violate the confrontation clause: “The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement’s credibility. ‘[W]hen a hearsay declarant is present at trial and subject to unrestricted cross-examination... the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness’ demeanor satisfy the constitutional requirements.’ [Citation.] In the face of an asserted loss of memory, these protections ‘will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.’ [Citation.]” (Id. at p. 420.)
Ortiz was present at trial and available for cross-examination by defendant. Ortiz did not refuse to testify entirely but instead, as discussed ante, refused to provide direct responses to questions that would have compelled him to identify defendant in court. There is little difference, as a practical matter, between a witness who explicitly refuses to identify a defendant in court out of fear for his or her safety, and one who instead feigns a lack of memory. In both cases, the witness is consciously withholding information. The admission of Ortiz’s prior statements, therefore, did not violate the confrontation clause.
We also find no state law violation. Evidence Code section 701, subdivision (a)(2) provides that a person is disqualified to be a witness if he or she is “[i]ncapable of understanding the duty of a witness to tell the truth.” There is no evidence that Ortiz was incapable of understanding the need for him to tell the truth. While defendant repeatedly asserts that Ortiz’s evasive testimony amounted to perjury, again, it was for the jury to consider the import of Ortiz’s inconsistent answers, and to assess his credibility in determining which of his statements were believable and which were not. In sum, the trial court was not required to disqualify Ortiz as a witness.
IV. Crawford v. Washington (2004) 541 U.S. 36 (Crawford)
Defendant claims that Ortiz’s prior identifications were inadmissible under Crawford and its progeny because he was not “unavailable” as a witness within the meaning of the confrontation clause.
Under Crawford, prior testimonial statements may not be admitted at trial absent unavailability of the declarant and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. 36, 68.) However, Ortiz’s extrajudicial statements do not implicate Crawford’s confrontation concerns. According to Crawford, the reliability of testimonial hearsay is best established by “the crucible of cross-examination.” (Id. at p. 61.) While Crawford literally says there must be both witness “unavailability” and a “prior opportunity for cross-examination” (id. at p. 68), we do not read it to mean that the extrajudicial statements of declarants who are available for current cross-examination must be excluded. Where the declarant is unavailable at trial, the prosecution cannot admit such evidence against the defendant unless the defendant previously had the chance to test its veracity in an adversarial setting. But Crawford cannot reasonably be understood as barring such evidence where the declarant was available at trial, and the defendant did cross-examine him. Additionally, Ortiz was cross-examined at the preliminary hearing except with respect to prior bad acts impeachment evidence which the magistrate at the preliminary hearing found had not been timely produced. This prior bad acts evidence was available for trial and was explored at length before the jury. We find no error.
Defendant contends that the trial court abused its discretion under Evidence Code section 352 in admitting Ortiz’s prior statements made at the hospital and at the preliminary hearing. He argues that the prior statements should have been excluded as “confusing and misleading” because Ortiz made some of those statements while under the influence of morphine and methamphetamine, and because he refused to confirm or deny the identifications in court.
Defendant did not move the trial court to exclude Ortiz’s prior statements under Evidence Code section 352. Questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific objection on the grounds sought to be urged on appeal. (Evid. Code, § 353; People v. Welch (1972) 8 Cal.3d 106, 114–115.) Accordingly, we will not consider this claim.
Evidence Code section 353 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
VI. Jury Instruction on Identification Testimony
Defendant claims that the trial court erred in failing to fully instruct the jury on how to weigh Ortiz’s preliminary hearing testimony in light of his refusal to make an identification at trial, and in failing to instruct on the weight of out-of-court identifications with respect to the prosecution’s burden to prove guilt beyond a reasonable doubt. We find no error.
During deliberations, the jury sent the court a note asking, “How much weight can we place on the preliminary evidence?” The trial court ascertained that the jury was referring to Ortiz’s testimony at the preliminary hearing. Section 1138 states: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and defendant or his counsel, or after they have been called.” After discussing the matter with the prosecutor and defense counsel, the court settled on the following response to the jury: “This court gave you an admonition during trial in regards to what a preliminary hearing is. Please refer to instruction 318 as to how to use that evidence, as well as all the other instructions that deal with credibility of witnesses in determining what weight to give it.” The court denied defense counsel’s request that it also specifically refer the jury to CALCRIM Nos. 226 and 315.
CALCRIM No. 318, as read to the jury and provided to them in writing, states: “You have heard evidence of statements that a witness made before the trial. If you decide the witness made those statements, you may use those statements in two ways; one, to evaluate whether the witness’s testimony in court was believable; and two, as evidence that the information in those earlier statements is true.” (Italics added.) Defendant claims this instruction is misleading because the jury also has a right to treat the information in the earlier statements as false.
Contrary to defendant’s assertion, it is apparent that CALCRIM No. 318 does not compel the jury to conclude the prior statements are true. Rather, it permits the jury to consider the statements as true only if it first finds the witness did, in fact, make the earlier statements. (See, e.g., People v. Golde (2008) 163 Cal.App.4th 101, 120 [“Thus, the ‘may’ comes into play only after the jurors have found the statements were made.”]) The instruction creates no presumption of truthfulness, nor does it speak in any way to how much credence such statements deserve in comparison with sworn testimony. As the instruction is not misleading, we see no error in the court’s suggestion that the jury review it along with other instructions on weighing testimonial evidence.
Defendant further claims the jury should have been instructed that even if it found the prior statements to be true, such a finding would not necessarily mean the jury had to find the statement was of sufficient weight to support a finding of proof of guilt beyond a reasonable doubt. This claim lacks merit. The jury was instructed pursuant to CALCRIM No. 220 that, in deciding whether the prosecution proved its case beyond a reasonable doubt, it “must impartially compare and consider all the evidence that was received throughout the entire trial.” (Italics added.) The jury was further instructed pursuant to CALCRIM No. 226 that among the factors the jury could consider in evaluating a witness’s credibility was, “Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?” The jury was also instructed with CALCRIM No. 315, covering the questions to consider in evaluating identification testimony. We presume the jurors were “able to correlate, follow, and understand the court’s instructions....” (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1190.)
In light of all the instructions given by the trial court concerning how to evaluate testimony, we also find no error in the trial court’s failure to instruct the jury that it could consider Ortiz’s refusal to testify in determining the weight of any prior identification statements.
VII. Admission of Tattoo and Racial Slur
Defendant claims that the court erred in admitting evidence that he had “Skin head” tattooed on his forehead at the time of the attack, and that one of the assailants had called Ortiz a “prairie nigger” during the assault. He claims this evidence should have been excluded either under Evidence Code section 350 as irrelevant, or under Evidence Code section 352 as more prejudicial than probative. We disagree.
Ortiz has Native-American heritage.
After hearing defendant’s motions to exclude evidence of the derogatory name and the tattoo, the trial court ruled that Ortiz could testify to the specific incidents that happened to him during the assault, including whether he was called a specific name. The court also allowed the prosecution to introduce evidence of defendant’s tattoo.
Evidence Code section 350 provides: “No evidence is admissible except relevant evidence.” “Except as otherwise provided by statute” or the federal or California Constitution, “all relevant evidence is admissible.” (Evid. Code, § 351; Cal. Const., art. I, § 28, subd. (d); People v. Carter (2005) 36 Cal.4th 1114, 1166.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The California Supreme Court has stated evidence is relevant if it “tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117.) “The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence.” (People v. Crittenden (1994) 9 Cal.4th 83, 132.) The exercise of discretion is not grounds for reversal unless “ ‘the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125.) “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
In allowing evidence of the tattoo, the court specifically prohibited the introduction of any link between defendant and the Aryan Brotherhood, White power, or skin heads generally. The distinctive tattoo was relevant to Ortiz’s identification of defendant as one of his attackers. Additionally, the threat that included the derogatory name was important to the narrative of what happened during the attack, the state of mind of Ortiz and the assailants, and Ortiz’s credibility. The determination to allow the evidence of defendant’s tattoo and the derogatory statement made during the attack was well within the trial court’s discretion.
VIII. Failure to Instruct on CALJIC No. 2.11.5 or CALCRIM No. 373
Defendant claims the court had a sua sponte duty to instruct the jury with CALJIC No. 2.11.5 or the equivalent CALCRIM No. 373, instructions designed to prohibit a jury from speculating about whether someone other than defendant has been or will be prosecuted for the crime. He claims the omission allowed the jury to speculate about whether Mike Williams had already been found guilty on the basis of Ortiz’s testimony and his pretrial identifications.
CALCRIM No. 373 provides: “The evidence shows that (another person/other persons) may have been involved in the commission of the crime(s) charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether (that other person has/those other persons have) been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime[s] charged. [¶] [This instruction does not apply to the testimony of ________________ <insert names of testifying coparticipants>.]
Citing to People v. Sanders (1990) 221 Cal.App.3d 350, 359, the bench notes for CALCRIM No. 373 state: “The court has no sua sponte duty to give an instruction on unjoined co-participants; however, it must be given on request.” Defendant did not request this instruction in the trial court. He argues, however, that Sanders never suggested or held that there is no sua sponte duty to give this instruction. While we are inclined to agree with defendant’s assessment of the bench note in question, he has failed to demonstrate that the trial court was required to give this instruction in the present case.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]...’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154–155.) Defendant fails to persuade us that CALCRIM No. 373 represents a “general principle of law” necessary to the jury’s understanding of this particular case. While he claims the jury could have speculated from Williams’s failure to appear as a codefendant that he had already been convicted on the basis of Ortiz’s testimony, this claim appears to us to be much attenuated. Defendant does not point to any event or argument made during trial that would have caused the jury to harbor this notion. Accordingly, on this record, we find no error.
IX. Ineffective Assistance of Counsel
Defendant claims that to the extent his contentions may be considered procedurally barred due to the failure of his trial attorney to make a proper objection or to offer corrective jury instructions, such failure constituted ineffective assistance of counsel.
By guaranteeing “access to counsel’s skill and knowledge” and an “ ‘ample opportunity to meet the case of the prosecution,’ [citations]” the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684–686.) The defense has the burden of showing that the attorney’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at p. 688; see also id. at pp. 687–692; People v. Hart (1999) 20 Cal.4th 546, 623–624; People v. Ledesma (1987) 43 Cal.3d 171, 216–217.)
As we have detailed above, the issues that were arguably waived by defendant’s trial attorney lack merit or are beyond our review. Accordingly, we are unable to conclude that counsel’s representation of defendant “fell below an objective standard of reasonableness.”
X. Cumulative Error
Finally defendant asserts he is entitled to a reversal of the judgment based on the cumulative effect of the errors below. However, we have examined each of defendant’s claims on appeal and have found them to be without merit. Having found no error, there is no basis for reversal based on cumulative error. (People v. Raley (1992) 2 Cal.4th 870, 921.)
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and
“(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”