Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC775812
Premo, J.
A jury convicted defendant Charles DeShawn Lillie of assault with a deadly weapon. It also found true sentence-enhancement allegations that defendant had inflicted great bodily injury and personally used a deadly weapon. And the trial court found true allegations that defendant had suffered prior convictions and served prior prison terms for purposes of the Three Strikes law and sentence enhancement. On appeal, defendant contends that the trial court erred by (1) ruling that a defense witness had a valid Fifth Amendment right not to testify, (2) denying his request to grant the witness judicial immunity, and (3) denying his motion for a new trial grounded upon prosecutorial misconduct, namely interference with his right to call the witness on his behalf. We disagree and affirm the judgment.
BACKGROUND
Casey Harris was homeless and lived in downtown San Jose. He sometimes bought crack cocaine for addicts in exchange for part of what he purchased. On August 10, 2007, after one such transaction on behalf of a man named Luther, defendant approached Harris and said that the money Luther had given Harris had belonged to him and that Harris “owed him the purchase.” At encounters during the next two days, defendant would repeat the admonition to Harris. On August 12 at about 4:00 p.m., Harris exited a McDonald’s restaurant after having purchased crack for someone named “D.” Defendant was across the street and summoned Harris. Harris approached, and defendant asked Harris for some crack. Harris replied that the crack belonged to someone else. Defendant acknowledged the remark, and Harris turned and made a step to walk away. Harris then felt pressure akin to a punch on his right side above his hip and below his ribs. He turned and saw defendant holding a knife in his right hand. Defendant then said, “you got it.” Harris walked away with defendant following. He called defendant a coward and yelled, “I can’t believe you stabbed me.” At some point, he encountered Neil Burrow and told Burrow that he had been stabbed. Burrow called 911. From a liquor store, Harris saw defendant across the street and told Burrow, “That’s the guy.” Harris announced that the police were coming, and defendant left the scene. Harris identified defendant from a police photograph shown to him in the hospital. Burrow recognized defendant the next day on the street. He called 911, and the police arrested defendant.
Defendant testified to the following: (1) on August 12, 2007, he gave Luther some money because Luther was down on his luck; (2) he later saw Harris with a woman on the street walking toward him; (3) he asked Harris about Luther because he was concerned that Luther might use the money he had given him for drugs; (4) Harris said something about the money and left; (5) he walked away in the opposite direction and met Myron Barrier who was inside a parked vehicle; and (6) the two drove away and entered an apartment complex.
Barrier had given defendant’s investigators statements to the effect that (1) he and a woman saw Harris entering a Jack-In-The-Box restaurant to buy drugs on a day about the noon hour, (2) Harris ran out from the restaurant being chased by a drug dealer demanding money, (3) he and the woman walked up the street and encountered defendant, (4) Harris exited an apartment complex, joined the group, and complained of a pulled muscle on his side, (5) the group went separate ways, (6) he saw Harris on the street about 6:00 p.m. with a bandage around his stomach, (7) Harris said he had been stabbed, (8) the two met defendant, (9) he and defendant decided to leave in his car, (10) he asked Harris to join them, and (11) Harris declined.
Defendant called Barrier to testify but he invoked his right against self-incrimination. Barrier’s counsel explained that he had recently pleaded guilty and was waiting for sentencing in a Three Strikes case. Defendant offered that he possessed Barrier’s statements and did not “see any type of incriminating statements.”
The trial court then indicated that it would hold an in camera hearing with Barrier and his counsel to which the prosecutor responded: “I don’t have any objection to that. I think that’s appropriate. This, of course, assumes that Mr. Barrier will testify consistently with those statements. I do believe that there are some--some aspects of them that aren’t the same from one to the next. But without having conversed with him, I don’t know if he would testify, under oath, consistently with what he stated. [¶] I would add, just for the record, I had intended, for impeachment purposes, to cross-examine Mr. Barrier, not only regarding the strike-priors that he’s recently admitted and pending sentencing on--[¶]... [¶]--a three-strikes case, but also questioning him about criminal arrests which he suffered in the state of Connecticut in the ‘70s and ‘80s, which are not part of the current charging document for which he is facing. But because he has pled [sic] guilty, he--the People, actually, have the legal authority to add additional priors if they’re either strike-priors and/or prison-priors. We don’t have a clear answer on the rap sheets as to whether he did go to prison in those cases or not. But they are impeachment-type priors, many arrests of burglary, larceny, illegal use of credit cards. [¶] And, again, I don’t know what happened with Mr. Barrier on those, but I want to address--those may be additional areas in which he has legitimate protected Fifth Amendment rights to not answer those questions because they could potentially permit us to add additional prior convictions. And if we did, yes, it would give him the right to withdraw his plea; but, then again, he would be facing more time, and they could be used at any Romero to demonstrate this defendant’s background, character, and prospects as it relates to whether he will or will not receive a sentence of 25-to-life or less should [the judge] choose to exercise his discretion under [Penal Code section] 1385.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
At the in camera proceeding, the trial court learned that Barrier had pleaded guilty to selling a small amount of cocaine to an undercover officer and admitted three strikes, two of which had occurred during the same transaction. Barrier’s counsel stated that there was a pending motion to dismiss the strikes and the trial judge in the case had “indicated he doesn’t see it as a 25-to-life case.” Counsel argued that impeachment in this case that revealed a criminal history in Connecticut or unexpected revelations elicited by the prosecutor could adversely affect the motion to dismiss. The trial court sealed the record of the in camera proceeding and upheld Barrier’s invocation of the privilege against self-incrimination.
The next day, defendant asked the trial court “to either grant Mr. Barrier judicial immunity... or... prevent [the prosecutor] from getting into a line of questioning where 1978 potential strike-priors that are from another state--not allowing him to ask questions in regards to that to impeach the witness, and also to limit his cross-examination of the witness to ask--so that this witness does not need to invoke the Fifth Amendment.” The prosecutor objected to the request on the bases that the trial court had no authority to grant immunity and the request was premised upon the false assumption that he had “told [Barrier’s counsel] all these things before she conferred with Mr. Barrier in an attempt to prevent him from testifying.” The trial court ruled as follows: “I reviewed the case provided by the defense, and I--based on what I heard in camera yesterday, I don’t feel like--I don’t feel that it’s apposite. And I have not seen any cases in this state where the courts confer immunity. It may have been one that this particular [federal] District Court felt that existed, but it certainly is not the weight of authority. And, therefore, I question whether I have that authority. [¶] But that aside, I didn’t--don’t feel like, even if I do, under the standard laid down by this court, that I have--that this case is apposite. So I’m going to deny the request that was made by the defense.”
At defendant’s motion for a new trial, Barrier testified that he had decided against being a witness after speaking with his attorney in the holding cell or at the courtroom counsel table before taking the witness stand. Defendant’s trial counsel also testified. He stated that, during trial, there was an “ongoing process” of “threats” by the prosecutor toward Barrier, namely “specific threats to Mr. Barrier if he testified” in “three main categories, ” (1) threats to elicit an admission “that he was possibly up to some illegal activity during the time that he witnessed the events that [defendant] was calling him to testify to, ” (2) telling Barrier’s attorney that he was going to prove that Barrier was committing perjury because “the statement he gave to [defendant’s] investigator was concocted, ” and (3) “informing [Barrier’s attorney] that if he testified, that he was going to... see to it that additional strike-priors were charged.” According to defendant’s trial counsel, these threats occurred in court off the record between the prosecutor and Barrier’s counsel. The prosecutor also testified. He affirmed that he had conversed with Barrier’s counsel, off the record, when Barrier was in the holding cell, after which Barrier’s counsel went to the holding cell to talk to Barrier and returned with Barrier who then took the witness stand and invoked his right against self-incrimination. He added that he had spoken to Barrier’s counsel a second time, off the record, after the in camera hearing, about the Fifth Amendment and Barrier’s possible use of illegal drugs on the date of the stabbing. He concluded: “But the long and the short of it is my--all my goals relating to those conversations were to make sure that the record had an adequate basis to justify Mr. Barrier’s invocation of his Fifth Amendment rights. And since I did not have the--the benefit of hearing what went on in the in-camera [sic] hearing, I was at a substantial disadvantage in knowing whether that [drug issue] had been adequately taken care of. [¶] Certainly, no disrespect to the Court. I’m certain that the Court took whatever precautions were necessary, but I just didn’t know.”
The trial court denied defendant’s motion and explained as follows: “I’ve read the papers, heard the testimony, and I don’t feel that there is a sufficient basis to grant the motion. I don’t think the testimony was persuasive under any standard of proof, whether that be clear--certainly not clear and convincing and even by a preponderance of the evidence. I think the People’s evidence was more persuasive than the defense evidence.”
UPHOLDING THE PRIVILEGE AGAINST SELF-INCRIMINATION
Defendant contends that the trial court “violated [his] rights to Compulsory Process, a complete defense, and the fair trial guaranteed by the Sixth and Fourteenth Amendments” by upholding Barrier’s privilege. He reasons as follows: “Here, Barrier’s and [his counsel’s] declarations that his answers might incriminate him did not relieve Barrier from answering questions. [Citation.] Barrier was in no real danger from direct answers to propounded questions. [Citations.] That the prosecutor might cross-examine and impeach Barrier with remote convictions occurring thirty and twenty years ago was a remote possibility that did not extend the Fifth Amendment’s reach.” Defendant’s analysis is erroneous.
“[A] person has a privilege to refuse to disclose any matter that may tend to incriminate him.” (Evid. Code, § 940.) “The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.” (Miranda v. Arizona (1966) 384 U.S. 436, 476.)
“To invoke the privilege, a witness need not be guilty of any offense; rather, the privilege is properly invoked whenever the witness’s answers ‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense. [Citations.] To satisfy this standard, ‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’ [Citation.] Consistent with these principles, our Evidence Code provides that when a witness grounds a refusal to testify on the privilege against self-incrimination, a trial court may compel the witness to answer only if it ‘clearly appears to the court’ that the proposed testimony ‘cannot possibly have a tendency to incriminate the person claiming the privilege.’ (Evid. Code, § 404.)” (People v. Cudjo (1993) 6 Cal.4th 585, 617.)
Here, it does not “clearly appear” that Barrier’s proposed testimony could not possibly have tended to incriminate him. The prosecutor offered that he intended to cross-examine Barrier about Connecticut offenses that Barrier may have committed. He noted that such offenses were not charged as priors in Barrier’s pending criminal case. He posed that positive answers to his questions could develop into additional charges in the case or evidence supporting a ruling adverse to Barrier in his pending motion to dismiss the priors that were charged and admitted in the case. The trial court made a private inquiry of Barrier and learned the same. Defendant’s argument does no more than disagree with the trial court’s opinion--an opinion with which we agree. The trial court therefore did not err in upholding Barrier’s invocation of the privilege against self-incrimination.
JUDICIAL IMMUNITY
Defendant contends that, by not granting immunity to Barrier and thereby removing the self-incrimination bar to Barrier’s testimony, “The prejudicial denial of judicial use immunity further violated [his] right to a fair trial and due process of law guaranteed by the Fifth and Fourteenth Amendment Due Process Clauses.”
“[T]here is no authority in this state for the proposition that a prosecutor must request or the trial court must grant immunity to a witness on the ground that the witness’s testimony could be favorable to the defense. [Citations.] In [People v. Hunter (1989) 49 Cal.3d 957, 973], we assumed without deciding that in appropriate circumstances judicially conferred use immunity might be necessary ‘to vindicate a criminal defendant’s rights to compulsory process and a fair trial[.]’ (Hunter, supra, at p. 974.) But we also said that such immunity would be required only if the witness’s testimony was both clearly exculpatory and essential to an effective defense, and if no strong governmental interest weighed against the grant of immunity.” (People v. Cudjo, supra, 6 Cal.4th at p. 619.)
Since there is no authority for defendant’s proposition, defendant’s contention necessarily fails. Even supposing the validity of the proposition from the Supreme Court’s assumption, defendant’s argument fails because defendant does not demonstrate that Barrier’s testimony would have been clearly exculpatory. This follows because Barrier did not witness Harris’s stabbing. Defendant argues that Barrier witnessed a drug dealer chasing Harris before Harris complained of a pulled muscle. Though this testimony may permit an inference that the drug dealer stabbed Harris, the evidence is nevertheless not clearly exculpatory. Thus, defendant has failed to demonstrate the existence of circumstances in which a trial court might be required to confer use immunity to ensure a fair trial.
MOTION FOR NEW TRIAL
Defendant repeats his claims of prosecutorial threats that “caused Barrier to refuse to testify” and contends that the trial court erred by denying his motion for a new trial because “The prosecution’s intimidation of the defense witness violated [his] fundamental right to compel witnesses on his behalf contrary to the state and federal due process clauses.” There is no merit to the point.
In reviewing a trial court order denying a motion for a new trial on the ground of misconduct, “We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Nesler (1997) 16 Cal.4th 561, 582 [jury misconduct].) If there is misconduct, appellate courts conduct an independent review of whether the defendant was prejudiced by the misconduct. (Ibid.)
“The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense. [Citations.] As we have observed, ‘A defendant’s constitutional rights to compel the attendance of witnesses, as guaranteed by the Sixth Amendment, and to due process, as guaranteed by the Fourteenth Amendment, are violated when the prosecution interferes with the defendant’s right to present witnesses.’ [Citations.] [¶]... To prevail in such a claim, as we have explained, he must establish three elements. ‘First, he must demonstrate prosecutorial misconduct, i.e., conduct that was “entirely unnecessary to the proper performance of the prosecutor’s duties and was of such a nature as to transform a defense witness willing to testify into one unwilling to testify.” ’ [Citation.] Second, he must establish the prosecutor’s misconduct was a substantial cause in depriving the defendant of the witness’s testimony. [Citation.] The defendant, however, ‘is not required to prove that the conduct under challenge was the “direct or exclusive” cause. [Citations.] Rather, he need only show that the conduct was a substantial cause. [Citations.] The misconduct in question may be deemed a substantial cause when, for example, it carries significant coercive force [citation] and is soon followed by the witness’s refusal to testify.’ [Citation.] Finally, the defendant must show the testimony he was unable to present was material to his defense.” (People v. Lucas (1995) 12 Cal.4th 415, 456-457.)
Defendant is unable to carry the first part of his burden, that is, to show that there was misconduct.
First, “it is clear that [Barrier], not the prosecutor, was the moving force in raising the issue of [Barrier’s] possible self-incrimination.” (People v. Lucas, supra, 12 Cal.4th at pp. 457-458.) Barrier attended court with his own counsel. He conferred with his counsel before entering the courtroom and invoking the privilege. The prosecutor said nothing to anyone about the issue until after Barrier had invoked the privilege.
And second, “the prosecutor’s comments were not threats directed to the witness.” (People v. Lucas, supra, 12 Cal.4th at p. 458; see, e.g., United States v. Angiulo (1st Cir. 1990) 897 F.2d 1169, 1193 [no prosecutorial misconduct where communication was to the court and there was no prosecutor-witness communication].) The issue of Barrier’s testimony was broached and discussed among the trial court, the prosecutor, defendant, and Barrier’s counsel after Barrier had taken the witness stand and invoked the privilege. The prosecutor never conversed with Barrier.
Defendant’s point that there was misconduct is no more than a reargument of historical fact at odds with the trial court’s finding. Not only does substantial evidence support the trial court’s finding, but the trial court also specifically found that defendant’s view of the facts was not credible. In short, there was simply no witness intimidation here.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.