Opinion
E072898
03-01-2021
THE PEOPLE, Plaintiff and Respondent, v. EFRAIN ALVAREZ, Defendant and Appellant.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18003627) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Efrain Alvarez of the first degree premeditated murder of Don G. and the premeditated attempted murder of Gregory W. (Pen. Code, §§ 187, subd. (a), 664, subd. (a).) In a bifurcated proceeding, the trial court found true the allegations that Alvarez suffered one prior strike conviction and one prior serious felony conviction. (Pen. Code, §§ 667, subds. (a)(1)-(e), 1170.12, subds. (a)-(d).) Alvarez was sentenced to 10 years plus 64 years to life in prison.
We omit the last names of the victims and the witnesses to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b)(4).) No disrespect is intended.
On appeal, Alvarez contends that (1) his murder and attempted murder convictions are not supported by substantial evidence, and (2) the trial court prejudicially erred by instructing the jury that it could consider that the attempted murder victim did not have a right to refuse to answer questions when testifying. Alvarez further asks that we review a sealed transcript from an in camera hearing about whether to allow testimony indicating that the attempted murder victim was a confidential informant. We reject Alvarez's first two arguments, find no error upon review of the sealed transcript, and affirm the judgment.
BACKGROUND
A. The Shooting—January 2018
On January 30, 2018, Don, his girlfriend, Gregory, and others were living or temporarily staying at the residence of John L. in Victorville, California. At approximately 11:00 p.m. that night, someone knocked loudly on a window to John's bedroom at the front of the house. John and two other men, including Robert W., were asleep in the bedroom. People typically knocked on John's bedroom window because that is where John spent most of his time. Alvarez had knocked on the window in the past. The loud noise awoke John and Robert, who heard two male voices say, "We're coming in."
Around the same time, someone knocked on the front door. Gregory, Don, and another man, Steve C., were all staying in different bedrooms and were inside those rooms when the knocking started. Responding to the knocking, all three men exited their rooms. Gregory and Don went to the front door. According to Steve, Don held a baseball bat. Gregory looked through a window in the front door and then unlocked and opened the door. Steve said that Gregory "started telling them to come in, to go ahead and come in."
According to Steve, a heavyset man followed by two other men entered the house. The men were all wearing hoodies with the hoods on over baseball caps that were pulled down low on their faces, nearly covering their eyes. The hoods further obscured the men's faces. The first man was wearing gloves and was holding a gun. Steve yelled that the men had a gun and called for someone to close the door. He then turned and ran to John's bedroom to retrieve John's shotgun. On the way to John's bedroom, Steve heard gunshots. When Steve exited John's bedroom with the shotgun, one of the men who had followed Steve shot at him. Steve fired the shotgun, and the man ran away. Looking toward the front door, Steve saw Gregory lying on the ground. The heavier set man was standing over Gregory and "looking as if he was about to shoot him again." Steve fired twice more, and all of the men exited the house.
After the shooting stopped, John exited his bedroom and saw Don's girlfriend standing over Don, who was lying on the ground and still alive. Don's girlfriend screamed at Gregory, "Why did you open the door?" John testified that Gregory said that he had done so because "he recognized Paisa or something like that." John knew Gregory to refer to two different people as "paisa," one of whom was Alvarez. John was interviewed by detectives the day after the shooting. At trial, John confirmed that his memory of what happened was better during that interview. Asked whether he recalled telling detectives in that interview that Gregory "had indicated that it was Efrain specifically at the door and that's why he opened it," John responded: "I do, you know, kind of remember that. Yes."
Don sustained seven gunshot wounds from two different caliber weapons. He died as a result of those wounds. Gregory was shot once in the back. B. Post-Shooting Law Enforcement Interviews of Gregory
Law enforcement officers interviewed Gregory several times on the day after the shooting. The first interview occurred at the hospital. A recording of that interview was played for the jury. Gregory told an officer that he had opened the door and four or five men with guns ran into John's house and started shooting. Asked if he knew the men, Gregory responded, "It was dark. I couldn't see the rest of them, but the guy that knocked on the door [inaudible]." He described the person who knocked on the door as being "heavyset." The men who entered the house were wearing all black and had on hoodies with the hoods up. Gregory said that "[t]he guy that knocked on the door, it looked like a guy named Efrain. He's a Paisa from Mexico." He did not know Efrain's last name. Gregory described the person whom he referred to as Efrain as a "big guy."
Asked why Efrain would go to John's house, Gregory responded, "I didn't seen [sic] him coming to the house at all, though." But Gregory then confirmed that he "had a couple [of] run-ins with" the person knocking at the door. Gregory explained that a lot of people had taken money from that person and said that person also had attempted to induce Gregory, who "r[a]n the desert for the whites," to "go and collect his money for him." Gregory further explained that he did not owe Efrain any money but that Efrain thought Gregory owed him $122,000 for methamphetamine. Gregory also said: "People been saying the Paisa's gonna get me and all kinds of shit."
Gregory said that the men entered the house without saying anything and that they had not asked for him when knocking on the door. He explained that "[i]t looked like the one guy when [he] went to the door." Later in the interview, when asked directly if it was Efrain who knocked at the door, Gregory responded, "Yeah, I don't know if it was, that's who it looked like." He also said that the person "[k]ind of sounded like Efrain. When asked to describe the hoodies the shooters were wearing, Gregory in part responded, "I don't remember what Efrain was wearing, the guy that looked like Efrain." Asked if he thought that Efrain had been attempting to collect his debt, Gregory said, "I don't know. I don't think. Seriously, if it was him, I feel sorry for him with, with his own people because that's not how they get down."
After being released from the hospital, Gregory was interviewed later that day at the sheriff's station by Detective Brian Chambers. Sergeant Brian Quintard was somewhat involved in the interview toward the end. Gregory explained to Detective Chambers that Alvarez had familial ties with Mexican drug cartels. At some point, Gregory had been involved in meetings with the Mexican Mafia about the $122,000 that Alvarez said Gregory owed him. Gregory said that Alvarez had attempted to "contract out" collection of the debt to the Mexican Mafia.
As to the night of the shooting, Gregory explained that he thought Alvarez had been in Mexico. But if Alvarez was not in Mexico "then that person [Gregory] saw on the porch was him, Efrain Alvarez." Gregory was not aware of anyone else who wanted to kill him. But he also said that there was a "big possibility" that it "might not be [Alvarez]" and explained that there was conflict within Gregory's own gang.
Detective Chambers showed Gregory a six-pack photographic lineup that included Alvarez. Gregory started to cry when he saw the lineup and said, "I can't." Gregory identified Alvarez as being one of the people in the lineup but refused to initial or date the photographic lineup, which Detective Chambers said is customary, because Gregory was afraid and thought that he would not be able to protect his family if he did so. Detective Chambers suggested that the prosecutor's office might be able to offer Gregory some kind of protection, but Gregory said that such protection was not "good enough." He reiterated that he was "concerned for his safety."
Sergeant Quintard first met Gregory in 2012 or 2013, knew Gregory to be a member of a white power street gang, and had frequent contact with Gregory over the years. A recording of Sergeant Quintard's interview of Gregory at the station was played for the jury. Gregory told Sergeant Quintard that the "Mexicans" had shot him. Asked specifically if it was Alvarez, Gregory said that he was not sure. Gregory explained that when he looked out the glass window in the door he had "seen a Mexican out there and that's what automatically clicked, but I'm looking at that picture I'm like, fuck, dude had like chops or somethin', like, he, something about his facial hair was different than Efrain usually had, that's why I'm like . . . how the glass was and stuff. I don't know." Gregory had been surprised by the number of men who entered the house "because when [he] looked out the door it was just the one dude. You know, I thought it was Paisa, that's what I told old boy and I was like all right well [inaudible] he's comin' to talk to Don." Gregory did not think the shooters had been there for him.
Later the same day, Sergeant Quintard interviewed Gregory in a motel room. The interview was not recorded. During the interview at the motel, Sergeant Quintard asked Gregory who shot him, and Gregory said that "he didn't know but he received a phone call just prior to [Sergeant Quintard's] arrival and the subject said something to the effect of, We want our shit back." Gregory identified "The Paisa" as the caller and confirmed that he was referring specifically to Alvarez. From Sergeant Quintard's prior contact with Gregory, he knew that Gregory referred to Alvarez as "The Paisa."
Looking through the cell phone in the motel that Gregory identified as being the one that had received the call, Sergeant Quintard identified the call as being made from an area code 442 phone number. Gregory explained that both he and Alvarez would switch cell phones frequently and typically only used the same cell phone for approximately one week. C. Cell Phone Records
The phone number that Gregory had identified as belonging to Alvarez the day after the shooting was activated two days before the shooting. At approximately 9:50 p.m. the night of the shooting, the cell phone pinged on a cell phone tower located in San Bernardino, California, approximately 38 miles and a 38-minute drive away from John's house. There was no activity on the phone from approximately 10:00 p.m. through 12:05 a.m. the next morning in the same area of San Bernardino. When a cell phone is turned off, it cannot connect to a cell phone tower.
On the day after the shooting, there were several internet searches via an email account associated with Alvarez's Facebook account for local news affiliates and for the term "news." There were no searches for news sources on that phone before that day. Two days after the shooting, someone using that phone clicked on a link containing a news article about the shooting.
Numerous phone calls were made the day after the shooting between the cell phone associated with Alvarez and the cell phone found that day in the motel with Gregory. The phone associated with Gregory made three phone calls within one minute, and none lasted more than six seconds. Within five minutes of those calls, the cell phone associated with Alvarez placed a return phone call that lasted approximately two and one-half minutes. D. Alvarez's Neighbor
When the shooting occurred, Shawn V. lived on the same property as Alvarez in Hesperia, California. Alvarez lived in the house, and Shawn lived in a shack behind the house but showered inside of the house. Shawn also had previously lived with Gregory.
In May 2018, Shawn attempted to call Detective Chambers, and Detective Chambers returned the call. The return phone call was recorded. Shawn had previously been interviewed by Detective Chambers and told him that he was in Las Vegas, Nevada on the night of the shooting. But in the subsequent telephone conversation Shawn revised his statement and said that he had lied about his whereabouts that night. Detective Chambers asked Shawn what he knew about the night of the shooting, and Shawn responded: "'I know that he was picked up by three people from West Side Verdugo. . . . And I know it was, because I was at the house that [Alvarez] was at that night.'" West Side Verdugo is a street gang in San Bernardino, California. Shawn did not see anyone leave the house, but he "heard them enter" when he was getting into the shower. At trial, Shawn testified that he could not recall his telephone conversation with Detective Chambers at all but acknowledged that it was his voice on the recording. Shawn testified that what he recalled about the night of the shooting was that Alvarez had been at the residence before Shawn entered the shower and was gone when he exited the shower.
Shawn explained to Detective Chambers that he feared Alvarez because Alvarez had told him that his uncle was the head of the Sinaloa Drug Cartel and was on the FBI's most wanted list. At trial, Shawn denied that Alvarez had told him anything about his family having any connection with drug cartels. E. Alvarez's Statement to Law Enforcement in March 2018
Two months after the shooting, in March 2018, law enforcement officers interviewed Alvarez, who was in jail. The interview was recorded and played for the jury. Alvarez said that Gregory owed him $119,000 from "[d]ope," but Alvarez claimed not to have any problem with Gregory. Alvarez denied having been present at the shooting, denied shooting Gregory or Don, and denied knowing who had. Alvarez also denied calling Gregory afterward and demanding that Gregory return his money. Alvarez said that he would "fix this" and "get a hold of Greg[ory]" and tell him, "What the fuck you think this is a game or something, you know." Alvarez considered Gregory a "solid guy," whom he did not think would "rat[] people out like that." After being told about a house full of people telling one story against Alvarez and there being "overwhelming evidence" placing Alvarez at the scene, Alvarez responded, "I don't give a fuck about the witnesses, honestly." F. Jailhouse Encounter Between Alvarez and Gregory in May 2018
Several weeks after the shooting Gregory was taken into custody and housed in a jail in San Bernardino County. While there sometime around May 2018, Gregory encountered Alvarez. Gregory called his fiancé and told her about the encounter. The phone call was recorded. Gregory said that "[t]hey moved [his] Paisa close to [him]." At trial, Gregory confirmed that the phone conversation was about his encounter with Alvarez. Gregory told his fiancé that he and "paisa" had spoken and "squared out" their problems. Alvarez was going to help Gregory's fiancé with problems she was having, and Alvarez was supposed to send Gregory $500. Later in the phone call, Gregory asked his fiancé to tell someone named "Lil Bro" to leave "the Paisa" be "if the Paisa goes over there." Gregory explained, "And then we'll work everything out when we get out. When we all get out." Gregory testified that during their encounter he and Alvarez had talked about this case, and Gregory told Alvarez that he would testify on Alvarez's behalf. G. Defense Investigator's Jailhouse Interviews with Gregory
While Gregory was in jail, a private investigator for Alvarez interviewed Gregory twice and summarized those meetings in written reports. During the first interview, Gregory explained that he sold methamphetamine and heroin for Alvarez and was responsible for collecting money from those sales. Gregory explained that in October 2017 he and Alvarez had a "falling out" and their business partnership ended. Alvarez thought Gregory owed him $119,000, but Gregory believed that he was personally liable for only $2,000 and that the remaining loss was due to things beyond his control. Gregory told the investigator that on the day after the shooting he received a phone call from a "males [sic] voice," who said, "'This is Paisa. We want our money.'" Gregory confirmed that he referred to Alvarez by his name and by "Paisa," which Gregory knew to be Alvarez's nickname or moniker.
When the investigator interviewed Gregory the second time, the investigator brought a draft of his report from the first interview and read the report in its entirety to Gregory. Gregory made some corrections to the report. No corrections were made to any of the content summarized above. H. Gregory's Testimony
The prosecution called Gregory to testify in its case-in-chief. He initially refused to answer any questions. In response to the first question asked of him, Gregory said: "Before I go any further I'm under a federal indictment. Without my lawyer present I do not want to discuss this case without my lawyer present." The prosecutor responded that the question was not about any possible case against Gregory but rather asked him to acknowledge if he recognized Don in a photograph. Gregory reiterated, "My lawyer is not present. I'm under federal indictment now." The prosecutor then asked Gregory if he was "not willing to speak about this case because" they were there for Alvarez's case. Gregory responded, "Yes. This case is a farce. There's a lot of shit mixed up in it. And without my lawyer present, I'm not going to speak on it." He confirmed that he was "attempting to assert [his] constitutional right." The trial court did not intervene. Gregory refused to confirm that he knew John or to identify Don. Gregory even refused to identify himself in a photograph, saying, "I can't remember. I haven't looked in the mirror in a while." Gregory eventually started providing substantive answers to most questions.
Gregory denied that Alvarez was the person who shot him and could not say whether Alvarez had been at John's house the night of the shooting. He also denied telling anyone at the house that night that he had opened the door because he saw Alvarez. He claimed to have heard someone on the other side of the door calling for John. Gregory said that he did not refer to Alvarez by any particular nickname and explained that he "call[s] all Hispanics Paisas."
Gregory further denied that he had received a phone call the day after the shooting from Alvarez. He did not recall telling Sergeant Quintard or the defense investigator that he had received a phone call from Alvarez or that he recognized the voice on the call as belonging to Alvarez. He claimed that any communication he received was via text message on someone else's phone, so there was no voice to identify.
Regarding the photographic lineup, Gregory explained that what he meant when he said, "I can't" when he was shown the lineup is that he could not "do that" because Alvarez was not the person who shot him and Gregory could not say that Alvarez had been there. The "situation" had made him "pretty emotional."
DISCUSSION
A. Sufficiency of the Evidence
The prosecutor argued that Alvarez was guilty of murder and attempted murder as either the direct perpetrator or an aider and abettor. Alvarez challenges the sufficiency of the evidence supporting those convictions. His arguments are not meritorious.
"In reviewing a sufficiency of the evidence claim, our role is limited. We review the entire record to determine whether it discloses reasonable and credible evidence to allow a rational trier of fact to determine guilt beyond a reasonable doubt." (People v. Cardenas (2020) 53 Cal.App.5th 102, 119, fn. 11 (Cardenas).) "We draw all reasonable inferences in favor of the judgment." (Ibid.) "Matters of credibility of witnesses and the weight of the evidence are '"'the exclusive province of the trier of fact.'"' (Ibid.)
Alvarez argues that there was not sufficient evidence that he participated in the shooting because Gregory's identification of him as the person who knocked on the door is "inherently improbable." (Italics omitted.) He claims that "close scrutiny of [Gregory's] testimony reveals that he actually did not identify [Alvarez]," and in any event, Gregory's testimony was not credible and was based on speculation and guesswork. He further claims that the remaining evidence of the cell phone tracking data and the debt Gregory owed to Alvarez was not sufficient by itself to support the murder and attempted murder convictions.
The record contains substantial evidence that Gregory identified Alvarez as the person who knocked on John's door on the night of the shooting. John testified that immediately after the shooting Gregory told Don's girlfriend that he had opened the door because "he recognized Paisa or something like that." While being interviewed by law enforcement officers the day after the shooting, John "kind of" recalled Gregory saying in those moments after the shooting that the person at the door was Alvarez specifically. We must view John's testimony in the light most favorable to the judgment and thus assume that the jury reasonably inferred that Gregory had specifically identified Alvarez as the person who knocked at the door. Moreover, the jury also could reasonably infer that Gregory was referring to Alvarez when or if he said "paisa" was the person at the door. While John knew Gregory to refer to both Alvarez and another man as "paisa," Sergeant Quintard, whom Gregory had known for years, knew that when Gregory referenced "paisa" Gregory was referring to Alvarez. In the interview with Sergeant Quintard at the motel the day after the shooting, Gregory identified the person who had called him as "The Paisa" and confirmed that he meant Alvarez. Gregory also told the defense investigator that he referred to Alvarez as "paisa" because that was Alvarez's nickname or moniker. In addition, when Gregory called his fiancé to describe the encounter he had with Alvarez while both men were in jail, Gregory did not once refer to Alvarez by his name but instead referred to Alvarez as "The Paisa" or "paisa" multiple times. Gregory's fiancé did not ask Gregory for any clarification. The jury could reasonably infer that clarification was not needed because Gregory's fiancé knew "paisa" to mean Alvarez. Viewing all of this evidence in the light most favorable to the judgment, the jury could reasonably infer that Gregory referred to Alvarez as "paisa" or "the Paisa" and that in those moments after the shooting Gregory consequently was referring to Alvarez as the person who had knocked on the door.
"Identification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime." (People v. Boyer (2006) 38 Cal.4th 412, 480 (Boyer); People v. Richardson (2008) 43 Cal.4th 959, 1030-1031.) "Moreover, a testifying witness's out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court." (Boyer, supra, at p. 480.) Indeed, regardless of testimony confirming that out-of-court identification, an out-of-court identification has greater probative value than "'"an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind."'" (Ibid.) John's testimony concerning Gregory's out-of-court identification of Alvarez as the person who knocked on the door therefore constitutes substantial evidence that Alvarez was present at the shooting and thus was a principal in the murder and the attempted murder. (See id. at pp. 480-481.)
John's testimony that Gregory identified Alvarez as the person who knocked at the door is further supported by Gregory's statements to law enforcement officers the day after the shooting. Parsing through the language of those statements and Gregory's testimony, Alvarez contends that Gregory never actually identified Alvarez as being present at the shooting during those interviews. We do not agree.
While Gregory never positively and unequivocally identified Alvarez as being present at the shooting to any law enforcement officer, Gregory made numerous statements to law enforcement officers from which the jury could reasonably infer that Alvarez was the person whom Gregory identified. The closest Gregory came to an unequivocal identification during those interviews was his statement that if Alvarez was not in Mexico, as Gregory thought he was, "then that person [Gregory] saw on the porch was him, Efrain Alvarez." No evidence was presented that Alvarez was in Mexico when the shooting occurred, and there was evidence that his cell phone was within 40 miles of John's house before and after the shooting (and was turned off for approximately one hour before and after the shooting). The jury therefore could reasonably infer that Gregory had identified Alvarez as the person standing on the porch.
Other statements Gregory made support that inference. Gregory volunteered to the first officer with whom he spoke at the hospital that the person who knocked on the door "looked like a guy named Efrain," whom he explained was "a paisa from Mexico." He reiterated that the person at the front door looked and sounded like Alvarez. Although he also otherwise said that the person's facial hair seemed different from Alvarez's and that he was not sure if the person was Alvarez, the jury could reasonably infer that Gregory feared retaliation if he identified Alvarez as being present at the shooting and thus felt more comfortable hedging his identification by saying that the person looked and sounded like Alvarez. That inference is supported by the fact that when Gregory was asked to identify Alvarez in a photographic lineup—not as the shooter but just for purposes of identification, Gregory cried and refused to initial the photographic lineup. Gregory admitted that he refused because he feared Alvarez and worried about his family's and his own safety if he identified Alvarez. Further support for the inference that Alvarez was present at the shooting comes from Gregory's statements to Sergeant Quintard. Responding to a question about who shot him, Gregory volunteered that Alvarez had just called him to demand repayment of his debt, and Gregory provided the same information in an interview with the investigator for the defense. The jury could reasonably infer that Gregory mentioned the phone call in response to that question because Gregory's debt to Alvarez was relevant to the shooting. There was substantial evidence from the statements Gregory made to law enforcement officers and in the house immediately after the shooting from which the jury could conclude that Alvarez was present at the shooting.
Alvarez argues that we should disregard all of Gregory's statements to law enforcement because Gregory disavowed those statements at trial and because he is otherwise not credible. In determining whether substantial evidence supports the convictions, we neither weigh nor assess Gregory's credibility—that is a matter that lies exclusively within the province of the jury. (People v. Alexander (2010) 49 Cal.4th 846, 917-918 (Alexander).) "Weaknesses and inconsistencies in eyewitness testimony are matters solely for the jury to evaluate." (People v. Allen (1985) 165 Cal.App.3d 616, 623.) And the jury was free to disregard and disbelieve all of Gregory's testimony contradicting and undermining his prior statements to law enforcement. (Alexander, supra, at p. 918.) That would be particularly reasonable here given the strong evidence of Gregory's motivation to lie. Gregory and Alvarez spoke while in jail about this case and also "squared" everything away. As part of that resolution, Alvarez was going to help Gregory's fiancé with a problem and pay Gregory $500—even though months earlier Alvarez told officers that Gregory owed him $122,000. The jury could reasonably infer that in order to earn $500 and have his debt of over $100,000 wiped clean Gregory was providing Alvarez something of significant value—such as untruthful testimony about Alvarez's involvement in the shooting. That inference is supported by Gregory's statements to his fiancé that both he and Alvarez would be getting out of jail and Alvarez's statements to law enforcement that he was not concerned about any witnesses. Gregory's hostility as a prosecution witness in general and refusal to answer simple questions (such as identifying himself in a photograph) further support the inference that he was being untruthful in order to help Alvarez get acquitted. Thus, the jury reasonably could have believed Gregory's initial post-shooting statements at the scene and to law enforcement, which incriminated Alvarez, and reasonably could have concluded that Gregory changed his story out of fear of Alvarez, to pay his substantial debt to Alvarez, and to receive compensation from Alvarez, or any one or combination of those things. (Ibid. ["we are convinced that a rational trier of fact reasonably could have believed the first version that [the victim] gave to the police, the version that strongly incriminated [the] defendant, and reasonably could have found that [the victim's] story changed only because [the] defendant, his family, [the victim's] family, and even [the victim's] own internal conflicted loyalties, pressured [the victim] to lie and undermine the case against [the] defendant"].)
Relying on People v. Young (2005) 34 Cal.4th 1149 (Young), Alvarez argues that Gregory's testimony was "inherently improbable" and thus insufficient to support the convictions because Gregory purportedly "did not actually identify [Alvarez] and [Gregory's] trial testimony was impeached with evidence that his purported identification was based on speculation, not solid, credible evidence." The present case is similar to Young. As in Young, "[n]o inherent improbability appears in the identification testimony" of Gregory (id. at p. 1181)—that is, it is not something that "does not seem possible could have occurred under the circumstances disclosed" (People v. Headlee (1941) 18 Cal.2d 266, 267), and the falsity of Gregory's identification of Alvarez's presence at the scene is not "apparent without resorting to inferences or deductions" (People v. Le Blanc (1950) 99 Cal.App.2d 52, 54; People v. Huston (1943) 21 Cal.2d 690, 693, overruled on another ground by People v. Burton (1961) 55 Cal.2d 328, 352). "[E]vidence which is unusual or inconsistent is not necessarily improbable." (People v. Headlee, supra, at p. 267.) The conflicting evidence about Gregory's identification of Alvarez does not render his identification inherently improbable. It merely presented inconsistencies for the jury to resolve. Because Gregory's identification of Alvarez was not inherently improbable, the evidence of Gregory's identification of Alvarez alone suffices to support the murder and attempted murder convictions. (Young, supra, at p. 1181.)
We therefore reject Alvarez's substantial evidence challenge to the murder and attempted murder convictions. B. Alleged Instructional Error
The jury was instructed with CALCRIM No. 320 as follows: "[Gregory] did not have the right to refuse to answer questions in this case. You may consider that refusal during your deliberations." Alvarez did not object to the instruction or request any modifying or clarifying language.
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) We independently review claims of instructional error and whether an instruction accurately states the law. (People v. Campbell (2020) 51 Cal.App.5th 463, 493.) "[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference." (People v. Hannon (1977) 19 Cal.3d 588, 597, overruled on another ground by People v. Martinez (2000) 22 Cal.4th 750, 761-762.)
A trial court cannot require a witness to take the stand to invoke the Fifth Amendment privilege against self-incrimination. (People v. Mincey (1992) 2 Cal.4th 408, 440-442.) "[A] jury may not draw any inference from a witness's exercise of a constitutional right." (People v. Hill (1992) 3 Cal.4th 959, 993, overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) That prohibition does not apply, however, when a witness has no constitutional or statutory right to refuse to testify. (People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez); People v. Morgain (2009) 177 Cal.App.4th 454, 466 (Morgain); People v. Sisneros (2009) 174 Cal.App.4th 142, 152.) As the court explained in Lopez, when a witness has no constitutional or statutory right to refuse to testify, "[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (Lopez, supra, at p. 1554.)
Alvarez urges that Lopez, supra, 71 Cal.App.4th 1550, was wrongly decided and thus that CALCRIM No. 320's statement of the law based on Lopez is inaccurate. He further argues that the rule in Lopez is inapplicable in any event because Gregory ultimately testified extensively despite his initial refusal. He also argues that the instruction erroneously failed to limit the jury's use of the refusal to evaluation of Gregory's credibility, instead allowing the jury to infer Alvarez's guilt from Gregory's refusal even though, according to Alvarez, there was no evidence that Alvarez coerced or threatened Gregory into not testifying. The People counter that Alvarez forfeited those arguments by failing to raise them in the trial court and that, in any event, the arguments have no merit.
In Lopez, supra, 71 Cal.App.4th 1550, it was alleged that the defendant committed assault to benefit a criminal street gang. (Id. at p. 1552.) To establish that the gang was involved in a pattern of criminal activity for purposes of the gang enhancement allegation, the prosecution called one of the gang's members to the stand to testify about a gang-related assault he had committed one month before the alleged assault committed by the defendant. (Id. at p. 1553.) The witness had already pled guilty to the charge, and the time to appeal had expired. (Ibid.) The witness informed the court before trial that he refused to testify. Although the trial court explained to the witness that he did not have a right to withhold testimony or any Fifth Amendment privilege left to invoke, the witness "refused to answer any questions about the events underlying his guilty plea." (Ibid.) The prosecutor called the witness to the stand, the witness persisted in his refusal to answer questions after the court ordered him to do so, and the court found the witness to be in contempt of court, which the defendant argued constituted reversible error. (Ibid.)
The Court of Appeal concluded that "the jury was entitled to consider [the witness's] improper claim of privilege against him as evidence relevant to demonstrate exactly what the gang expert had opined: that gang members act as a unit to advance the cause of the gang and to protect their members." (Lopez, supra, 71 Cal.App.4th at pp. 1555-1556.) Lopez explained: A "'witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.' [Citation.] But that is exactly what [the witness] tried to do. Given that his decision was fully informed and willful—and in disobedience of a court order—the jury was entitled to consider his defiance against him and, to the extent it validated the gang expert's testimony, against" the defendant. (Id. at p. 1556.)
Alvarez argues that Lopez, supra, 71 Cal.App.4th 1550, was wrongly decided because of its reliance on United States v. Hearst (9th Cir. 1977) 563 F.2d 1331 (Hearst), which involved a testifying defendant and not a witness. This critique is misplaced. The analysis in Hearst that Lopez found persuasive was: "'When a witness or a defendant has a valid Fifth Amendment privilege, government questions designed to elicit this privilege present to the jury information that is misleading, irrelevant to the issue of the witness's or the defendant's credibility, and not subject to examination by defense counsel. [Citation.] Therefore, we do not allow this form of questioning. [¶] But when a defendant [or a witness] has voluntarily waived his Fifth Amendment privilege . . . , the rationale for prohibiting privilege-invoking queries . . . does not apply.'" (Lopez, at p. 1555; Hearst, supra, at p. 1341.) Lopez found that the same rationale applied to a witness refusing to testify, and Alvarez does not offer any reason why the distinction between a witness and a defendant makes a material difference.
We do not perceive any flaw in Lopez's analysis or its reliance on Hearst as persuasive authority. We agree with the analysis and the conclusion in Lopez. It represents an accurate statement of the law: When a witness does not have a valid constitutional or statutory basis for refusing to testify, "[j]urors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony." (Lopez, supra, 71 Cal.App.4th at p. 1554.) CALCRIM No. 320 therefore accurately states the law.
Alvarez questions the validity of Lopez, supra, 71 Cal.App.4th 1550, because it has never been cited by our Supreme Court. Regardless of the Supreme Court's failure to affirm the rule announced in Lopez, Lopez remains good law. No Court of Appeal has disagreed with Lopez or questioned the soundness of its analysis or conclusion. There therefore is no split of authority on the issue. --------
We further reject Alvarez's claim that Lopez, supra, 71 Cal.App.4th at page 1553 is inapplicable here because, unlike the witness in Lopez, Gregory did not persist in his refusal to answer questions and ultimately "gave extensive testimony." The fact that Gregory eventually submitted and answered the prosecutor's questions does not negate the fact that he initially refused to testify in front of the jury by attempting to invoke his Fifth Amendment privilege, which was not valid. Regardless of any subsequent testimony from Gregory, the jury was free to consider and to weigh the impact, if any, of Gregory's initial refusal to testify.
We also reject the argument that the instruction impermissibly encouraged the jury to draw a speculative inference adverse to Alvarez because there purportedly was not any evidence showing that Alvarez had coerced or threatened Gregory to induce him not to testify. Another Court of Appeal has rejected the same argument made by the defendant, finding that the argument missed the point because the prosecutor had not argued to the jury that the defendant had tried to suppress the witness's testimony. (Morgain, supra, 177 Cal.App.4th at p. 468.) Whether such evidence is necessary before CALCRIM No. 320 is given is irrelevant in the present case because there was evidence from which the jury could conclude that Alvarez was at least aware that Gregory would refuse to testify. When the two men met while housed in the same jail, Gregory admitted that they talked about the case against Alvarez and that Gregory had offered to testify on Alvarez's behalf. In describing the meeting to his fiancé, Gregory told her that he and Alvarez had "squared" away their issues and that Alvarez was going to pay Gregory $500 and help the fiancé with some problem. Given that it was both men's shared understanding that Alvarez believed that Gregory owed him over $100,000 just months earlier, the jury could reasonably infer that the resolution included cancelation of the debt. The jury further could reasonably infer that Gregory agreed to refuse to testify against Alvarez in exchange for Alvarez canceling the debt, paying Gregory, and assisting his fiancé with some problem. Thus, assuming for the sake of argument that there must be evidence that the defendant coerced or encouraged a witness to refusing to testify before CALCRIM No. 320 can be given, that threshold was met here.
In any event, any error in instructing the jury with CALCRIM No. 320 was harmless under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836.) Applying the more rigorous federal harmlessness standard, "error is harmless if the record shows 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Cardenas, supra, 53 Cal.App.5th at p. 117; Chapman, supra, at p. 24.) "Reversal is required if there is "'a reasonable possibility"' that the error may have contributed to the verdict." (Cardenas, at p. 117; Chapman, at p. 24.)
There was strong evidence of Alvarez's guilt. In addition to Gregory's out-of-court identification of Alvarez as the person who knocked on the door, which we described ante, the cell phone tracking evidence placed Alvarez's cell phone within 40 minutes of John's house approximately one hour before and one hour after the incident. For those two hours, Alvarez's phone was turned off. On the night of the shooting, someone present at Alvarez's residence knew that Alvarez had been picked up from the residence by three gang members. The day after the shooting Alvarez searched local news sites and read an article reporting on the incident.
In addition, Alvarez had a motive to kill Gregory. Alvarez admitted that Gregory owed him over $100,000, which resulted in the cessation of Alvarez and Gregory's business relationship a few months before the shooting. Gregory had heard that Alvarez was "gonna get [him] and all kinds of shit" because of that perceived debt. And, as we have described, the jury could reasonably infer that Alvarez convinced Gregory to lie about not seeing Alvarez the night of the shooting, given the meeting between the men while in jail and the consequences of that meeting—the issues between them were "squared" away and Alvarez agreed to pay Gregory $500 and to help his fiancé resolve a problem.
Considered in light of all of that evidence, the CALCRIM No. 320 instruction added nothing of significance. It informed the jury that Gregory did not have a right to refuse to answer questions, and it added that the jury could consider his refusal in their deliberations. The instruction was permissive—it allowed but did not require the jury to consider Gregory's refusal. Alvarez does not argue that he was entitled to an instruction that the jury could not consider Gregory's refusal. The instruction thus left the jury in essentially the same position it would have been in otherwise. Gregory's refusal, followed by his obviously reluctant and evasive testimony, was already before the jury, and without the instruction the jury would have decided how much weight, if any, to give to that refusal, just as the instruction provided.
Thus, we conclude that it was not error to instruct the jury with CALCRIM No. 320, and any error in instructing the jury with CALCRIM No. 320 was harmless beyond a reasonable doubt. C. Disclosure of Possible Confidential Information
The People moved to exclude evidence concerning whether Gregory may have been a confidential informant for law enforcement. The People claimed that Sergeant Quintard, whom they planned to call as a witness, was knowledgeable about the existence or nonexistence of any such relationship. Defense counsel argued that the existence of such a relationship was relevant to the issue of whether others, including members of Gregory's own gang, had a motive to kill him. The trial court held an in camera hearing without any objection by the parties and interviewed Sergeant Quintard. After conducting the hearing, the trial court concluded under subdivision (b)(2) of Evidence Code section 1040 that the interests of justice required that information provided by Sergeant Quintard not be disclosed. The court further concluded that the probative value of the evidence was outweighed by its prejudice.
Both parties agree that we should independently review the sealed transcript from the in camera hearing. Alvarez asks that we review (1) whether Sergeant Quintard was placed under oath at the hearing; (2) whether the trial court created a sufficient record of what documents, if any, it examined; (3) whether "relevant information was withheld from the defense"; and (4) whether the trial court erred by prohibiting testimony about the possible confidential informant status of one of the material witnesses, thus resulting in a denial of due process to Alvarez.
Having independently reviewed the record, we conclude that Sergeant Quintard was properly sworn and the record is sufficient for our review. We further conclude that the trial court did not err by excluding relevant evidence or by prohibiting testimony about the possible confidential informant status of one of the material witnesses. Consequently, Alvarez was not denied a right to due process by exclusion of the evidence.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: MILLER
Acting P. J. FIELDS
J.