Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA070315, Joan Comparet-Cassani, Judge. Affirmed as modified.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Prentiss Griffin appeals from the judgment entered after his murder conviction, contending that a prosecution witness who testified after refusing to take the oath and declined to identify Griffin as the perpetrator was improperly impeached with a prior inconsistent statement where he did identify Griffin. Because any objection based on the witness’s failure to take the oath was waived, we affirm, but modify the judgment to correct a sentencing error.
FACTS AND PROCEDURAL HISTORY
One man was killed and another wounded by gunshots that were fired from several areas of a parking lot at the Artesia Transit Center at around 1:00 a.m. on March 5, 2005, when a gathering of rival gang members and others turned violent. Nearly a year later, Fred Wilberger, who was in prison on federal gun charges, reluctantly told a police detective that Prentiss Griffin shot both victims. Griffin was eventually arrested and charged with murder and attempted murder. A jury convicted him of the murder count but acquitted him of the attempted murder count. The court imposed a combined sentence of 90 years to life, which included a base term of 25 years to life that was doubled under the Three Strikes law, a 25-year gun-use enhancement, a consecutive 10-year enhancement because the crime was committed for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)(1)(C)), and a five-year enhancement based on a prior serious felony conviction.
At trial, defense counsel knew in advance that Wilberger would testify reluctantly and would likely recant his statements to the police. When Wilberger was called to the witness stand by the prosecutor, he refused to take the oath. The court sent the jury out and then asked Wilberger if he understood he had been told to swear to tell the truth. Wilberger said, “Yes, ma’am.” When the court asked if Wilberger understood what it meant to tell the truth, he again answered, “Yes, ma’am.” The court said it would proceed with his testimony and asked if Wilberger understood. Wilberger replied that he did.
On direct examination by the prosecutor, Wilberger denied all knowledge of Griffin and the shooting, and also denied ever having identified Griffin to the police. Defense counsel cross-examined Wilberger with just two questions: had he ever seen Griffin before and had he seen Griffin on March 5, 2005. Wilberger answered no to both questions and was excused as a witness.
The next day, the prosecutor called as a witness the police detective who heard Wilberger’s earlier identification of Griffin. When the prosecutor asked the detective about that conversation in order to impeach Wilberger with his prior inconsistent statement (Evid. Code, § 1235), defense counsel objected that the evidence was inadmissible because Wilberger never took the oath. The court agreed that Wilberger had not taken the oath. After a brief recess for the prosecutor to research the issue, the court found that the issue had been waived because defense counsel did not object to Wilberger’s testimony on direct examination but instead cross-examined him. The detective was then allowed to impeach Wilberger with his previous statement. Apart from that testimony, however, there was at best inconclusive evidence that Griffin had been the perpetrator.
Griffin contends that the trial court erred by admitting evidence of Wilberger’s statement and that, without it, there was insufficient evidence to convict him. He alternatively contends that if his trial counsel waived the objection to Wilberger’s testimony, then he received ineffective assistance of counsel. In supplemental briefing filed with the permission of the court, Griffin also contends the trial court erred by imposing the 10-year street gang sentence enhancement under Penal Code section 186.22, subdivision (b)(1)(C).
DISCUSSION
1. Griffin Waived His Objection to the Unsworn Evidence
Every witness is required to take an oath or make an affirmation that they will testify truthfully. (Evid. Code, § 710.) This requirement serves two purposes: First, to affect the conscience of the witness in order to make him speak the truth; and second, to expose the witness to criminal liability for perjury if he testifies falsely. It is not unconstitutional to receive unsworn testimony, but if a timely objection is made, the testimony does not constitute “evidence” within the meaning of the Evidence Code. (In re Heather H. (1988) 200 Cal.App.3d 91, 95-96.)
Unless otherwise indicated, all further section references are to the Evidence Code.
Griffin contends that even though his trial counsel did not object to Wilberger’s testimony at the time it was taken, the lawyer’s later objection at the time the police detective was questioned about Wilberger’s prior inconsistent statement was timely. As a result, Griffin contends, there was no evidence to impeach and the police statement was inadmissible. We disagree. Because defense counsel did not object to Wilberger’s testimony but instead went on to cross-examine him, any objection to Wilberger’s testimony due to the oath taking issue was waived. (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 377 [unsworn testimony is not a nullity; where no objection was made, unsworn testimony of minor was sufficient to commence trial for purposes of having jeopardy attach because objection must be made at once]; People v. Thomas (1967) 65 Cal.2d 698, 708 [waiver found where no objection made and witness was cross-examined]; People v. Haeberlin (1969) 272 Cal.App.2d 711, 716.) Because Wilberger’s unsworn testimony became evidence due to this waiver, it necessarily follows that impeachment of that evidence was allowable.
Griffin also contends that his Sixth Amendment right to confront and cross-examine Wilberger was violated by this procedure. His reliance on People v. Rios (1985) 163 Cal.App.3d 852 (Rios) for this proposition is misplaced. The witness in Rios flatly refused to testify at all, leading the appellate court to hold that impeachment with a prior inconsistent statement was impermissible because there was no testimony to impeach. It is inapplicable in a situation such as this, however, where the witness does in fact testify and denies having previously identified the defendant as the perpetrator. (People v. Richardson (2008) 43 Cal.4th 959, 1006.) Because Wilberger was available for cross-examination after his unsworn testimony was received without objection, and was in fact cross-examined, we hold that Griffin’s confrontation rights were satisfied. (Ibid.)
We recognize that witness Wilberger was brought out from the court’s lockup, was a gang member who did not want to testify, and was likely playing games with the court. Even so, we urge the trial court to exercise more caution in the future to insure that oaths are properly taken should such a circumstance ever arise again. As noted, the oath serves two important purposes and is critical to the integrity of, and public confidence in, the judicial system.
Finally, Griffin’s substantial evidence argument depends on a holding that Wilberger’s testimony and the prior inconsistent statement where he identified Griffin should not have been in evidence. Without that, he contends, there was no evidence to convict him. Because we hold that the evidence was properly admitted, his substantial evidence argument necessarily fails.
Griffin also contends evidence of Wilberger’s inconsistent statement was not admissible under section 770 because Wilberger’s unsworn testimony was not evidence and because Wilberger was excused from giving further testimony. As to the former contention, we have already held that objections to the unsworn testimony were waived, meaning it was in evidence. As to the latter, defense counsel did not object when Wilberger was excused from further testimony and therefore waived that issue as well.
2. Ineffective Assistance of Counsel Claim
Should we hold that Griffin’s trial counsel waived any objections to Wilberger’s testimony or his impeachment, Griffin contends we should reverse because he received ineffective assistance of counsel. In assessing such a claim, we consider whether trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and, if so, whether it is reasonably probable the defendant was prejudiced. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1158.) If the defendant’s showing on either component is insufficient, we must reject the claim. (Ibid.) “If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Griffin contends he need not bring a habeas corpus petition with its requisite factual showing because there could not be any possible explanation for his trial counsel’s failure to timely object to Wilberger’s testimony. We disagree. The record shows defense counsel knew ahead of time that not only would Wilberger likely deny his police statement, he was an unwilling and very reluctant witness. Once Wilberger refused to take the oath, defense counsel might have waited to see whether Wilberger would testify at all, thinking that if he did not, then under Rios, supra, 163 Cal.App.3d 852, there would be no basis for impeaching him with a prior inconsistent statement. In any event, such a possible explanation requires speculation on our part and is best resolved by way of a habeas corpus petition. Accordingly, we reject Griffin’s ineffective assistance of counsel claim.
3. The Street Gang Enhancement Must Be Stricken
Griffin contends and respondent concedes that the trial court erred by adding the 10-year street gang sentence enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)) to his life term for murder. (People v. Lopez (2005) 34 Cal.4th 1002, 1004.) Griffin asks that we modify the judgment accordingly. We shall do so.
DISPOSITION
For the reasons set forth above, the judgment is modified to strike the 10-year street gang sentence enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C), leaving Griffin with a combined sentence of 80 years to life. The clerk of the superior court is directed to modify the abstract of judgment accordingly and send a corrected copy of the abstract to the Department of Corrections. In all other respects, the judgment is affirmed.
WE CONCUR: COOPER, P. J., BIGELOW, J.